File No. 763.72112/716
The Ambassador in Great Britain ( Page ) to the Secretary of State
[Received February 12, 1915, noon. 1]
1627. My 1626.2
Foreign Office, February 10, 1915.
Your Excellency: Your excellency has already received the preliminary answer which I handed to you on the 7th January,3 in reply to your note of the 28th December,4 on the subject of seizures and detentions of American cargoes destined for neutral European ports.
Since that date I have had further opportunity of examining into the trade statistics of the United States as embodied in the customs returns, in order to see whether the belligerent action of Great Britain has been in any way the cause of the trade depression which your excellency describes as existing in the United States, and also whether the seizures of vessels or cargoes which have been made by the British Navy have inflicted any loss on American owners for which our existing machinery provides no means of redress. In setting out the results of my investigation I think it well to take the opportunity of giving a general review of the methods employed by His Majesty’s Government to intercept contraband trade with the enemy, of their consistency with the admitted right of a belligerent to intercept such trade, and also of the extent to which they have endeavoured to meet the representations and complaints from time to time addressed to them on behalf of the United States Government.
Towards the close of your note of the 28th December your excellency describes the situation produced by the action of Great Britain as a critical one to the commercial interests of the United States, and said that many of the great industries of the country were suffering because their products were denied long-established markets in neutral European countries contiguous to the nations at war.
It is unfortunately true that in these days, when trade and finance are cosmopolitan, any war—particularly a war of any magnitude—must result in a grievous dislocation of commerce, including that of the nations which take no part in the war. Your excellency will realize that in this tremendous struggle, for the outbreak of which Great Britain is in no way responsible, it is impossible for the trade of any country to escape all injury and loss, but for such His Majesty’s Government are not to blame.
I do not understand the paragraph which I have quoted from your excellency’s note as referring to these indirect consequences of the state of war, but to the more proximate and direct effect of our belligerent action in dealing with neutral ships and cargoes on the high seas. Such action has been limited to vessels on their way to enemy ports or ports in neutral countries adjacent to the theatre of war, because it is only through such ports that the enemy introduces the supplies which he requires for carrying on the war.[Page 325]
In my earlier note I set out the number of ships which had sailed from the United States for Holland, Denmark, Norway, Sweden, and Italy, and I there stated that only 8 of the 773 had been placed in the prize court, and that only 45 had been temporarily detained to enable particular consignments of cargo to be discharged for the purpose of prize-court proceedings. To measure the effect of such naval action it is necessary to take into consideration the general statistics of the export trade of the United States during the months preceding the outbreak of war and those since the outbreak.
Taking the figures in millions of dollars, the exports of merchandise from the United States for the seven months of January to July 1914, inclusive, were 1,201, as compared with 1,327 in the corresponding months of 1913, a drop of 126 millions of dollars.
For the months of August, September, October, and November, that is to say, for the four months of the war preceding the delivery of your excellency’s note, the figures of the exports of merchandise were (again in millions of dollars) 667 as compared with 923 in the corresponding months of 1913, a drop of 256 millions of dollars.
If, however, the single article of cotton be eliminated from the comparison, the figures show a very different result. Thus the exports of all articles of merchandise other than cotton from the United States during the first seven months of 1914 were 966 millions of dollars as against 1,127 millions in 1913, a drop of 161 millions of dollars, or 14½ per cent. On the other hand, the exports of the same articles during the months August to November amounted to 608 millions of dollars as compared with 630 millions in 1913, a drop of 22 millions, or less than 4 per cent.
It is therefore clear that, if cotton be excluded, the effect of the war has been not to increase but practically to arrest the decline of American exports which was in progress earlier in the year. In fact, any decrease in American exports which is attributed to the war is essentially due to cotton. Cotton is an article which can not possibly have been affected by the exercise of our belligerent rights, for, as your excellency is aware, it has not been declared by His Majesty’s Government to be contraband of war, and the rules under which we are at present conducting our belligerent operations give us no power in the absence of a blockade to seize or interfere with it when on its way to a belligerent country in neutral ships. Consequently no cotton has been touched.
Into the causes of the decrease in the exports of cotton I do not feel that there is any need for me to enter, because, whatever may have been the cause, it is not to be found in the exercise of the belligerent rights of visitation, search, and capture, or in our general right when at war to intercept the contraband trade of our enemy. Imports of cotton to the United Kingdom fell as heavily as those to other countries. No place felt the outbreak of war more acutely than the cotton districts of Lancashire, where for a time an immense number of spindles were idle. Though this condition has now to a large extent passed away, the consumption of the raw material in Great Britain was temporarily much diminished. The same is no doubt true of France.
The general result is to show convincingly that the naval operations of Great Britain are not the cause of any diminution in the volume of American exports, and that if the commerce of the United States is in the unfavourable condition which your excellency describes, the cause ought in fairness to be sought elsewhere than in the activities of His Majesty’s naval forces.
I may add that the circular issued by the Department of Commerce at Washington on the 23d January admits a marked improvement in the foreign trade of the United States of America, which we have noted with great satisfaction. The first paragraph of the circular is worth quoting verbatim:
A marked improvement in our foreign trade is indicated by the latest reports issued by the Department of Commerce through its Bureau of foreign and Domestic Commerce, sales of foodstuffs and certain lines of manufactures having been unusually large in November, the latest period for which detailed information is at hand. In that month exports aggregated $206,000,000, or double the total for August last, when, by reason of the outbreak of war, our foreign trade fell to the lowest level reached in many years. In December there was further improvement, the month’s exports being valued at $246,000,000, compared with $233,000,000 in December 1913, and within $4,000,000 of the high record established in December 1912.
A better view of the situation is obtained by looking at these figures month by month. The exports of merchandise for the last five months have been (in millions of dollars):
The outbreak of war produced in the United States, as it did in all neutral countries, an acute but temporary disturbance of trade. Since that time there seems to have been a steady recovery, for to-day the exports from the United States stand at a higher figure than on the same date last year.
Before passing away from the statistics of trade, and in order to demonstrate still more clearly, if necessary, that the naval operations of Great Britain and her allies have had no detrimental effect on the volume of trade between the United States and neutral countries, it is worth while to analyse the figures of the exports to Europe since the outbreak of hostilities. For this purpose the European countries ought to be grouped under three heads: Great Britain and those fighting with her, neutral countries, and enemy countries. It is, however, impossible for me to group the countries in this way satisfactorily, as the figures relating to the export trade of the United States with each country have not yet been published. In the preliminary statement of the export trade of the United States with foreign countries only principal countries are shown, and various countries which are tabulated separately in the more detailed monthly summary of commerce and finance are omitted. Those omitted include not only the Scandinavian countries, the exports to which are of peculiar importance in dealing with this question, but also Austria.
So far as it is possible to distribute the figures under the headings which I have indicated above (all the figures being given in thousands of dollars) the results are as follows:
Total exports to Europe from the 1st August to the 30th November, 413,995, as against 597,342 [in 1913]. Of these, Great Britain and her allies took 285,312, as against 316,805 in 1913; Germany and Belgium took 1,881 as against 177,136 in 1913; whereas neutral countries (among which Austria-Hungary is unavoidably included) took 123,802, as against 103,401 in 1913.
The general complaint in your excellency’s note was that the action of Great Britain was affecting adversely the trade of the United States with neutral countries. The naval operations of Great Britain certainly do not interfere with commerce from the United States on its way to the United Kingdom and the allied countries, and yet the exports to Great Britain and her allies during those four months diminished to the extent of over $28,000,000, whereas those to neutral countries and Austria increased by over $20,000,000.
The inference may fairly be drawn from these figures, all of which are taken from the official returns published by the United States Government, that not only has the trade of the United States with the neutral countries in Europe been maintained as compared with previous years, but also that a substantial part of this trade was, in fact, trade intended for the enemy countries going through neutral ports by routes to which it was previously unaccustomed.
One of the many inconveniences to which this great war is exposing the commerce of all neutral countries is undoubtedly the serious shortage in shipping available for ocean transport, and the consequential result of excessive freights.
It cannot fairly be said that this shortage is caused by Great Britain’s interference with neutral ships. At the present time there are only seven neutral vessels awaiting adjudication in the prize courts in this country, and three in those in the British dominions. As your excellency is aware, I have already instructed our ambassador at Washington to remind the parties who are interested in all these vessels that it is open to them to apply to the court for the release of these ships on bail, and if an application of this sort is made by them it is not likely to be opposed by the Grown. There is therefore no reason why such an application should not be favourably entertained by the court, and, if acceded to, all these vessels will again be available for the carriage of commerce. Only one neutral vessel is now detained in this country in addition to those awaiting adjudication in the prize court.
Every effort has been made in cases in which it has been found necessary to institute proceedings against portions of the cargo to secure the speedy discharge [Page 327] of the cargo and the release of the shipment, so as to enable it to resume work. Great Britain is suffering from the shortage of shipping and the rise in freights as acutely as, if not more than, other nations and His Majesty’s Government have taken every step that they could consistently with their belligerent interests to increase the tonnage available for the transport of sea-borne commerce. The enemy ships which have been condemned in the prize courts in this country are being sold as rapidly as possible in order that they may become available for use; and those which have been condemned in the prize courts oversea are being brought to this country in order that they may be disposed of here, and again placed in active employment.
The difficulties have been accentuated by the unforeseen consequences of the convention which was signed at The Hague in 1907 relative to the status of enemy merchant vessels at the outbreak of war. This convention was a well-intentioned effort to diminish the losses which war must impose upon innocent persons, and provided that enemy merchant ships seized by a belligerent in whose ports they lay at the outbreak of war should not be condemned, but should merely be detained for the period of the war, unless they were liberated in the days of grace. We could come to no arrangement with the German Government for the reciprocal grant of days of grace, and the German merchant vessels lying in British ports when the war broke out have therefore been sentenced to detention in lieu of condemnation. The normal result would have been still further to reduce the volume of shipping available for the commerce of the world. To ease the situation, however, His Majesty’s Government are resorting to the power of requisitioning which is given by the convention, so that these ships may again be placed in active service.
Your excellency will see therefore that His Majesty’s Government are doing all in their power to increase the volume of shipping available. I hope it will be realized that the detention of neutral ships by His Majesty’s Government with a view to the capture of contraband trade on its way to the enemy has not contributed nearly so much to the shortage of shipping as has the destruction of neutral vessels by submarine mines indiscriminately laid by the enemy on the high seas, many miles from the coast, in the track of merchant vessels. Up till now twenty-five neutral vessels have been reported as destroyed by mines on the high seas; quite apart from all questions of the breach of treaties and the destruction of life, there is far more reason for protest on the score of belligerent interference with innocent neutral trade through the mines scattered by the enemy than through the British exercise of the right of seizing contraband.
I trust that what I have said above will be sufficient to convince your excellency’s Government that the complaint that the naval policy of Great Britain has interfered with the shipments of American products to long-established markets in neutral European countries is founded on a misconception.
In justice to the peoples of both countries, I feel that this opportunity should be taken to explain the lines on which His Majesty’s Government have been acting hitherto, so as to show that the line they have followed is in no way inconsistent with the general fundamental principle of international law, and to indicate the care with which they have endeavoured to meet the representations which have been made by the United States Government from time to time during the war on these questions.
No one in these days will dispute the general proposition that a belligerent is entitled to capture contraband goods on their way to the enemy; that right has now become consecrated by long usage and general acquiescence. Though the right is ancient, the means of exercising it alter and develop with the changes in the methods and machinery of commerce. A century ago the difficulties of land transport rendered it impracticable for the belligerent to obtain supplies of sea-borne goods through a neighboring neutral country. Consequently the belligerent actions of his opponents neither required nor justified any interference with shipments on their way to a neutral port. This principle was recognized and acted on in the decisions in which Lord Stowell laid down the lines on which captures of such goods should be dealt with.
The advent of steam power has rendered it as easy for a belligerent to supply himself through the ports of a neutral contiguous country as through his own, and has therefore rendered it impossible for his opponent to refrain from interfering with commerce intended for the enemy merely because it is on its way to a neutral port.
No better instance of the necessity of countering new devices for despatching contraband goods to an enemy by new methods of applying the fundamental [Page 328] principle of the right to capture contraband can be given than the steps which the Government of the United States found it necessary to take during the American Civil War. It was at that time that the doctrine of continuous voyage was first applied to the capture of contraband, that is to say, it was then for the first time that a belligerent found himself obliged to capture contraband goods on their way to the enemy, even though at the time of capture they were en route for a neutral port from which they were intended subsequently to continue their journey. The policy then followed by the Government of the United States was not inconsistent with general principles already sanctioned by international law, and met with no protest from His Majesty’s Government, though it was upon British cargoes and upon British ships that the losses and the inconvenience due to this new development of the application of the old rule of international law principally fell. The criticisms which have been directed against the steps then taken by the United States came, and come, from those who saw in the methods employed in Napoleonic times for the prevention of contraband a limitation upon the right itself, and failed to see that in Napoleonic times goods on their way to a neutral port were immune from capture, not because the immediate destination conferred a privilege, but because capture under such circumstances was unnecessary.
The facilities which the introduction of steamers and railways have given to a belligerent to introduce contraband goods through neutral ports have imposed upon his opponent the additional difficulty, when endeavouring to intercept such trade, of distinguishing between the goods which are really destined for the commerce of that neutral country and the goods which are on their way to the enemy. It is one of the many difficulties with which the United States Government found themselves confronted in the days of the Civil War, and I cannot do better than quote the words which Mr. Seward, who was then Secretary of State, used in the course of the diplomatic discussion arising out of the capture of some goods on their way to Matamoras which were believed to be for the insurgents:
Neutrals engaged in honest trade with Matamoras must expect to experience inconvenience from the existing blockade of Brownsville and the adjacent coast of Texas. While this Government unfeignedly regrets this inconvenience, it cannot relinquish any of its belligerent rights to favor contraband trade with insurgent territory. By insisting upon those rights, however, it is sure that that necessity for their exercise at all, which must be deplored by every friendly commercial power, will the more speedily be terminated.
The opportunities now enjoyed by a belligerent for obtaining supplies through neutral ports are far greater than they were fifty years ago, and the geographical conditions of the present struggle lend additional assistance to the enemy in carrying out such importation. We are faced with the problem of intercepting such supplies when arranged with all the advantages that flow from elaborate organization and unstinted expenditure. If our belligerent rights are to be maintained, it is of the first importance for us to distinguish between what is really bona fide trade intended for the neutral country concerned and the trade intended for the enemy country. Every effort is made by organizers of this trade to conceal the true destination, and if the innocent neutral trade is to be distinguished from the enemy trade it is essential that His Majesty’s Government should be entitled to make, and should make, careful enquiry with regard to the destination of particular shipments of goods even at the risk of some slight delay to the parties interested. If such enquiries were not made, either the exercise of our belligerent rights would have to be abandoned, tending to the prolongation of this war and the increase of the loss and suffering which it is entailing upon the whole world, or else it would be necessary to indulge in indiscriminate captures of neutral goods and their detention throughout all the period of the resulting prize-court proceedings. Under the system now adopted it has been found possible to release without delay, and consequently without appreciable loss to the parties interested, all the goods of which the destination is shown as the result of the enquiries to be innocent.
It may well be that the system of making such enquiries is to a certain extent a new introduction, in that it has been practised to a far greater extent than in previous wars; but if it is correctly described as a new departure, it is a departure which is wholly to the advantage of neutrals, and which has been [Page 329] made for the purpose of relieving them so far as possible from loss and inconvenience.
There was a passage in a note which the State Department addressed to the British Ambassador at Washington on the 7th November to which I think it may be well to refer:
In the opinion of this Government, the belligerent right of visit and search requires that the search should be made on the high seas at the time of the visit, and that the conclusion of the search should rest upon the evidence found on the ship under investigation, and not upon circumstances ascertained from external sources.
The principle here enunciated appears to me to be inconsistent with the practice in these matters of the United States Government, as well as of the British Government. It certainly was not the rule upon which the United States Government acted either during the Civil War or during the Spanish-American War, nor has it ever been the practice of the British Government, nor so far as I am aware, of any other government which has had to carry on a great naval war; as a principle I think it is impossible in modern times. The necessity for giving the belligerent captor full liberty to establish by all the evidence at his disposal the enemy destination with which the goods were shipped was recognized in all the leading decisions in the prize courts of the United States during the Civil War.
No clearer instance could be given than the reporter’s statement of the case of the Bermuda (3 Wallace, 514):
The final destination of the cargo in this particular voyage was left so skillfully open... that it was not quite easy to prove, with that certainty which American courts require, the intention, which it seemed plain must have really existed. Thus to prove it required that truth should be collated from a variety of sources, darkened and disguised; from others opened as the cause advanced, and by accident only; from coincidences undesigned, and facts that were circumstantial. Collocations and comparisons, in short, brought largely their collective force in aid of evidence that was more direct.
It is not impossible that the course of the present struggle will show the necessity for belligerent action to be taken in various ways which may at first sight be regarded as a departure from old practice. In my note of the 7th, January, I dealt at some length with the question of the necessity of taking vessels into port for the purposes of carrying out an effective search, where search was necessary; to that subject I feel that I need not again recur.
The growth in the size of steamships necessitates in many cases that the vessels should go into calm water, in order that even the right of visit, as apart from the right of search, should be exercised. In modern times a steamer is capable of pursuing her voyage irrespective of the conditions of the weather. Many of the neutral merchantmen which our naval officers are called upon to visit at sea are encountered by our cruisers in places and under conditions which render the launching of a boat impossible. The conditions during winter in the North Atlantic frequently render it impracticable for days together for a naval officer to board a vessel on her way to Scandinavian countries. If a belligerent is to be denied the right of taking a neutral merchantman, met with under such conditions, into calm water in order that the visiting officer may go aboard, the right of visit and of search would become a nullity.
The present conflict is not the first in which this necessity has arisen. As long ago as the Civil War the United States found it necessary to take vessels to United States ports in order to determine whether the circumstances justified their detention.
The same need arose during the Russo-Japanese War and also during the second Balkan War, when it sometimes happened that British vessels were made to deviate from their course and follow the cruisers to some spot where the right of visit and of search could be more conveniently carried out. In both cases this exercise of belligerent rights, although questioned at first by His Majesty’s Government, was ultimately acquiesced in.
No power in these days can afford during a great war to forego the exercise of the right of visit and search. Vessels which are apparently harmless merchantmen [Page 330] can be used for carrying and laying mines, and even fitted to discharge torpedoes. Supplies for submarines can without difficulty be concealed under other cargoes. The only protection against these risks is to visit and search thoroughly every vessel appearing in the zone of operations, and if the circumstances are such as to render it impossible to carry it out at the spot where the vessel was met with, the only practicable course is to take the ship to some more convenient locality for the purpose. To do so is not to be looked upon as a new belligerent right, but as an adaptation of the existing right to the modern conditions of commerce. Like all belligerent rights, it must be exercised with due regard for neutral interests, and it would be unreasonable to expect a neutral vessel to make long deviations from her course for this purpose. It is for this reason that we have done all we can to encourage neutral merchantmen on their way to ports contiguous to the enemy country to visit some British port lying on their line of route in order that the necessary examination of the ship’s papers, and, if required, of the cargo, can be made under conditions of convenience to the ship herself. The alternative would be to keep a vessel which the naval officers desired to board waiting, it might be for days together, until the weather conditions enabled the visit to be carried out at sea.
No war has yet been waged in which neutral individuals have not occasionally suffered from unjustified belligerent action; no neutral has experienced this fact more frequently in the past than Great Britain. The only method by which it is possible to harmonize belligerent action with the rights of neutrals is for the belligerent nation to provide some adequate machinery by which in any such case the facts can be investigated and appropriate redress can be obtained by the neutral individual. In this country such machinery is provided by the powers which are given to the prize court to deal not only with captures, but also with claims for compensation. Order V, rule 2, of the British prize court rules, provides that where a ship has been captured as prize, but has been subsequently released by the captors, or has by loss, destruction, or otherwise ceased to be detained by them, without proceedings for condemnation having been taken, any person interested in the ship (which by Order I, rule 2, includes goods) wishing to make a claim for costs and damages in respect thereof, shall issue a writ as provided by Order I [II]. And writ so issued will initiate a proceeding, which will follow its ordinary course in the prize court.
This rule gives the prize court ample jurisdiction to deal with any claim for compensation by a neutral arising from the interference with a ship or goods by our naval forces. The best evidence that can be given of the discrimination and the moderation with which our naval officers have carried out their duties is to be found in the fact that up to this time no proceedings for the recovery of compensation have been initiated under the rule which I have quoted.
It is the common experience of every war that neutrals whose attempts to engage in suspicious trading are frustrated by a belligerent are wont to have recourse to their Government to urge that diplomatic remonstrances should be made on their behalf, and that redress should be obtained for them in this way. When an effective mode of redress is open to them in the courts of a civilized country by which they can obtain adequate satisfaction for any invasion of their rights which is contrary to the law of nations, the only course which is consistent with sound principle is that they should be referred to that mode of redress, and that no diplomatic action should be taken until their legal remedies have been exhausted, and they are in a position to show prima facie denial of justice.
The course adopted by His Majesty’s Government during the American Civil War was in strict accordance with this principle. In spite of remonstrances from many quarters, they placed full reliance on the American prize courts to grant redress to the parties interested in cases of alleged wrongful capture by American ships of war, and put forward no claims until the opportunities for redress in those courts had been exhausted. The same course was adopted in the Spanish-American War, when all British subjects who complained of captures or detentions of their ships were referred to the prize courts for relief.
Before leaving the subject may I remind your excellency of the fact that at your request you are now supplied immediately by this department with particulars of every ship under American colours which is detained, and of every shipment of cargo in which an American citizen appears to be the party interested. [Page 331] Not only is the fact of detention notified to your excellency, but so far as is practicable the grounds upon which the vessel or cargo has been detained are also communicated to you, a concession which enables any United States citizen to take steps at once to protect his interests.
His Majesty’s Government have also done all that lies in their power to insure rapid action when ships are reported in British ports. They realize that the ship and cargo owners may reasonably expect an immediate decision to be taken as to whether the ship may be allowed to proceed, and whether her cargo or any part of it must be discharged and put into the prize court. Realizing that the ordinary methods of interdepartmental correspondence might cause delays which could be obviated by another method of procedure, they established several months ago a special committee, on which all the departments concerned are represented. This committee sits daily, and is provided with a special clerical staff. As soon as a ship reaches port full particulars are telegraphed to London, and the case is dealt with at the next meeting of the committee, immediate steps being taken to carry out the action decided upon. By the adoption of this procedure it has been found possible to reduce to a minimum the delays to which neutral shipping is exposed by the exercise of belligerent rights, and by the necessity, imposed by modern times, of examining with care the destination of contraband articles.
Particular attention is directed in your excellency’s note to the policy we are pursuing with regard to conditional contraband, especially foodstuffs, and it is there stated that a number of American cargoes have been seized without, so far as your excellency’s Government are informed, our being in possession of facts which warranted a reasonable belief that the shipments had in reality a belligerent destination, and in spite of the presumption of innocent use due to their being destined to neutral territory. The note does not specify any particular seizures as those which formed the basis of this complaint, and I am therefore not aware whether the passage refers to cargoes which were detained before or since the order in council of the 29th October was issued.
Your excellency will no doubt remember that soon after the outbreak of war an order of His Majesty in council was issued under which no distinction was drawn in the application of the doctrine of continuous voyage between absolute contraband and conditional contraband, and which also imposed upon the neutral owner of contraband somewhat drastic conditions as to the burden of proof of the guilt or innocence of the shipment.
The principle that the burden of proof should always be imposed upon the captor has usually been admitted as a theory. In practice, however, it has almost always been otherwise, and any student of the prize courts’ decisions of the past or even of modern wars will find that goods seldom escape condemnation unless their owner was in a position to prove that their destination was innocent. An attempt was made some few years ago, in the unratified Declaration of London, to formulate some definite rules upon this subject, but time alone can show whether the rules there laid down will stand the test of modern warfare.
The rules which His Majesty’s Government published in the order in council of the 20th August, 1914, were criticized by the United States Government as contrary to the generally recognized principles of international law, and as inflicting unnecessary hardship upon neutral commerce, and your excellency will remember the prolonged discussions which took place between us throughout the month of October with a view to finding some new formulæ which should enable us to restrict supplies to the enemy forces, and to prevent the supply to the enemy of materials essential for the making of munitions of war, while inflicting the minimum of injury and interference with neutral commerce. It was with this object that the order in council of the 29th October was issued, under the provisions of which a far greater measure of immunity is conferred upon neutral commerce. In that order the principle of non-interference with conditional contraband on its way to a neutral port is in large measure admitted; only in three cases is the right to seize maintained, and in all those cases the opportunity is given to the claimants of the goods to establish their innocence.
Two of those cases are where the ship’s papers afford no information as to the person for whom the goods are intended. It is only reasonable that a belligerent should be entitled to regard as suspicious cases where the shippers of the goods do not choose to disclose the name of the individual who is to receive them. The third ease is that of goods addressed to a person in the [Page 332] enemy territory. In the peculiar circumstances of the present struggle, where the forces of the enemy comprise so large a proportion of the population, and where there is so little evidence of shipments on private as distingu shed from Government account, it is most reasonable that the burden of proof should rest upon the claimant.
The most difficult questions in connection with conditional contraband arise with reference to the shipment of foodstuffs. No country has maintained more stoutly than Great Britain in modern times the principle that a bell gerent should abstain from interference with the foodstuffs intended for the civil population. The circumstances of the present struggle are causing His Majesty’s Government some anxiety as to whether the existing rules with regard to conditional contraband, framed as they were with the object of protecting so far as possible the supplies which were intended for the civil population are effective for the purpose, or suitable to the conditions present. The principle which I have indicated above is one which His Majesty’s Government have constantly had to uphold against the opposition of continental powers In the absence of some certainty that the rule would be respected by both parties to this conflict, we feel great doubt whether it should be regarded as an established principle of international law.
Your excellency will, no doubt, remember that in 1885, at the time when His Majesty’s Government were discussing with the French Government this question of the right to declare foodstuffs not intended for the military forces to be contraband, and when public attention had been drawn to the matter, the Kiel Chamber of Commerce applied to the German Government for a statement of the latter’s views on the subject. Prince Bismarck’s answer was as follows:
In answer to their representations of the 1st instant, I reply to the Chamber of Commerce that any disadvantage our commercial and carrying interests may suffer by the treatment of rice as contraband of war does not justify our opposing a measure which it has been thought fit to take in carrying on a foreign war. Every war is a great calamity, which entails evil consequences, not only on the combatants, but also on neutrals. These evils may easily be increased by the interference of a neutral power with the way in which a third carries on the war, to the disadvantage of the subjects of the interfering power, and by this means German commerce might be weighted with far heavier losses than a transitory prohibition of the rice trade in Chinese waters. The measure in question has for its object the shortening of the war by increasing the difficulties of the enemy, and is a justifiable step in war if impartially enforced against all neutral ships.
His Majesty’s Government are disposed to think that the same view is still maintained by the German Government.
Another circumstance which is now coming to light is that an elaborate machinery has been organized by the enemy for supply of foodstuffs for the use of the German army from overseas. Under these circumstances it would be absurd to give any definite pledge that in cases where the supplies can be proved to be for the use of the enemy forces they should be given complete immunity by the simple expedient of despatching them to an agent in a neutral port.
The reason for drawing a distinction between foodstuffs intended for the civil population and those for the armed forces or enemy Government disappears when the distinction between the civil population and the armed forces itself disappears.
In any country in which there exists such tremendous organization for war as now obtains in Germany there is no clear diversion [division] between those whom the Government is responsible for feeding and those whom it is not. Experience shows that the power to requisition will be used to the fullest extent in order to make sure that the [wants] of the military are supplied, and however much goods may be imported for civil use it is by the military that they will be consumed if military exigencies require it, especially now that the German Government have taken control of all the foodstuffs in the country.
I do not wish to overburden this note with statistics, but in proof of my statement as to the unprecedented extent to which supplies are reaching neutral ports, I should like to instance the figures of the exports of certain meat products to Denmark during the months of September and October. Denmark is a country which in normal times imports a certain quantity of such products, [Page 333] but exports still more. In 1913, during the above two months, the United States exports of lard to Denmark were nil, as compared with 22,652,598 pounds in the same two months of 1914. The corresponding figures with regard to bacon were: 1913, nil; 1914, 1,022,195 pounds; canned beef, 1913, nil; 1914, 151,200 pounds; pickled and cured [beef], 1913, 42,901 pounds; 1914, 156,143 pounds; pickled pork, 1913, nil; 1914, 812,872 pounds.
In the same two months the United States exported to Denmark 280,176 gallons of mineral lubricating oil in 1914 as compared with 179,252 in 1913; to Norway, 335,468 gallons in 1914, as against 151,179 gallons in 1913; to Sweden, 896,193 gallons in 1914, as against 385,476 gallons in 1913.
I have already mentioned the framing of the order in council of the 29th October, and the transmission to your excellency of particulars of ships and cargoes seized as instances of the efforts which we have made throughout the course of this war to meet all reasonable complaints made on behalf of American citizens, and in my note of the 7th January I alluded to the decision in the case of the Miramichi, as evidencing the liberal principles adopted toward neutral commerce.
I should also like to refer to the steps which we took at the beginning of the war to insure the speedy release of cargo claimed by neutrals on board enemy ships which were captured or detained at the outbreak of war. Under our prize-court rules release of such goods can be obtained without the necessity of entering a claim in the prize court if the documents of title are produced to the officer representing His Majesty’s Government, and the title to the goods is established to his satisfaction. It was shortly found, however, that this procedure did not provide for the case where the available evidence was so scanty that the officer representing the Crown was not justified in consenting to a release. In order, therefore, to ameliorate the situation we established a special committee, with full powers to authorize the release of goods without insisting on full evidence of title being produced. This committee dealt with the utmost expedition with a large number of claims. In the great majority of cases the goods claimed were released at once. In addition to the cases dealt with by this committee a very large amount of cargo was released at once by the procurator general on production of documents. Claimants therefore obtained their goods without the necessity of applying to the prize court and of incurring the expense involved in retaining lawyers, and without the risk, which was in some cases a considerable one, of the goods being eventually held to be enemy property and condemned. We have reason to know that our action in this matter was highly appreciated by many American citizens.
Another instance of the efforts which His Majesty’s Government have made to deal as leniently as possible with neutral interests may be found in the policy which we have followed with regard to the transfer to a neutral flag of enemy ships belonging to companies which were incorporated in the enemy country, but all of whose shareholders were neutral. The rules applied by the British and by the American prize courts have always treated the flag as conclusive in favour of the captors in spite of neutral proprietary interests (see the case of the Pedro, 175 U. S., 354). In several cases, however, we have consented to waive our belligerent right to treat as enemy vessels ships belonging to companies incorporated in Germany which were subsidiary to and owned by American corporations. The only condition which we have imposed is that these vessels should take no further part in trade with the enemy country.
I have given these indications of the policy which we have followed, because I cannot help feeling that if the facts were more fully known as to the efforts which we have made to avoid inflicting any avoidable injury on neutral interests, many of the complaints which have been received by the administration in Washington, and which led to the protest which your excellency handed to me on the 28th December would never have been made. My hope is that when the facts which I have set out above are realized, and when it is seen that our naval operations have not diminished American trade with neutral countries, and that the lines on which we have acted are consistent with the fundamental principles of international law, it will be apparent to the Government and people of the United States that His Majesty’s Government have hitherto endeavoured to exercise their belligerent rights with every possible consideration for the interests of neutrals.
It will still be our endeavour to avoid injury and loss to neutrals, but the announcement by the German Government of their intention to sink merchant [Page 334] vessels and their cargoes without verification of their nationality or character, and without making any provision for the safety of non-combatant crews or giving them a chance of saving their lives, has made it necessary for His Majesty’s Government to consider what measures they should adopt to protect their interests. It is impossible for one belligerent to depart from rules and precedents and for the other to remain bound by them.
I have [etc.]
[The telegram from the Secretary of State to the Ambassador in Great Britain, No. 1134, February 15, 1915, instructing him to request the release of the Wilhelmina if the British Government had no other evidence warranting the seizure of her cargo than that based on the decree of the German Federal Council for control of foodstuffs, is printed above, page 105; as is also the British Ambassador’s memorandum of February 19, page 116.]