File No. 763.72112/1861a
The Secretary of State to the Ambassador in Great Britain (Page)
Sir: I desire that you present a note to Sir Edward Grey in the sense of the following:
(1) The Government of the United States has given careful consideration to your excellency’s notes of January 7, February 10, June 22, July 23, July 31 (2), August 13, and to a note verbale of the British Embassy of August 6, relating to restrictions upon American commerce by certain measures adopted by the British Government during the present war.1 This Government has delayed answering the earlier of these notes in the hope that the announced purpose of His Majesty’s Government “to exercise their belligerent rights with every possible consideration for the interest of neutrals” and their intention of “removing all causes of avoidable delay in dealing with American cargoes” and of causing “the least possible amount of inconvenience to persons engaged in legitimate trade,” as well as their “assurances to the United States Government that they would make it their first aim to minimize the inconveniences” resulting from the “measures taken by the Allied Governments,” would in practice hot unjustifiably infringe upon the neutral rights of American citizens engaged in trade and commerce. It is, therefore, a matter of regret that this hope has not been realized, but that, on the contrary, interferences with American ships and cargoes destined in good faith to neutral ports and lawfully entitled to proceed have become increasingly vexatious, causing American shipowners and American merchants to complain to this Government of the failure to take steps to prevent an exercise of belligerent power in contravention of their just rights. As the measures complained of proceed directly from orders issued by the British Government, are executed by British authorities, and arouse a reasonable apprehension that, if not resisted, they may be carried to an extent even more injurious to American interests, this Government directs the attention of His Majesty’s Government to the following considerations:
(2) Without commenting upon the statistics presented by His Majesty’s Government to show that the export trade of the United States has increased in volume since the war began, further than to point out that the comparative values fail to take into account the increased price of commodities resulting from a state of war or to make any allowance for the diminution in the volume of trade which [Page 579] the neutral countries in Europe previously had with the nations at war, a diminution which compelled them to buy in other markets, I will pass directly to the matters which constitute the specific complaints of this Government.
(3) First. The detentions of American vessels and cargoes which have taken place since the opening of hostilities have, it is presumed, been pursuant to the enforcement of the orders in council, which were issued on August 20 and October 29, 1914, and March 11, 1915, and relate to contraband traffic and to the interception of trade to and from Germany and Austria-Hungary. In practice, these detentions have not been uniformly based on proofs obtained at the time of seizure, but many vessels have been detained while search was made for evidence of the contraband character of cargoes or of an intention to evade the non-intercourse measures of Great Britain. The question, consequently, has been one of evidence to support a belief of—in many cases, a bare suspicion of—enemy destination, or occasionally of enemy origin of the goods involved. Whether this evidence should be obtained by search at sea before the vessel or cargo is taken into port, and what the character of the evidence should be, which is necessary to justify the detention, are the points to which I direct your excellency’s attention.
(4) In regard to search at sea, an examination of the instructions issued to naval commanders of the United States, Great Britain, Russia, Japan, Spain, Germany, and France from 1888 to the beginning of the present war shows that search in port was not contemplated by the Government of any of these countries. On the contrary, the context of the respective instructions shows that search at sea was the procedure expected to be followed by the commanders. All of these instructions impress upon the naval officers the necessity of acting with the utmost moderation—and in some cases commanders are specifically instructed—in exercising the right of visit and search, to avoid undue deviation of the vessel from her course.
(5) An examination of the opinions of the most eminent text writers on the laws of nations shows that they give practically no consideration to the question of search in port, outside of examination in the course of regular prize-court proceedings.
(6) The assertion by His Majesty’s Government that the position of the United States in relation to search at sea is inconsistent with its practice during the American Civil War is based upon a misconception. Irregularities there may have been at the beginning of that war, but a careful search of the records of this Government as to the practice of its commanders shows conclusively that there were no instances when vessels were brought into port for search prior to instituting prize court proceedings, or that captures were made upon other grounds than, in the words of the American note of November 7 , “evidence found on the ship under investigation and not upon circumstances ascertained from external sources.”1 A copy of the instruction issued to American naval officers on August 18, 1862, for their guidance during the Civil War, is appended.
(7) The British contention that “modern conditions” justify bringing vessels into port for search is based upon the size and seaworthiness [Page 580] of modern carriers of commerce and the difficulty of uncovering the real transaction in the intricate trade operations of the present day. It is believed that commercial transactions of the present time, hampered as they are by censorship of telegraph and postal communication on the part of belligerents, are essentially no more complex and disguised than in the wars of recent years, during which the practice of obtaining evidence in port to determine whether a vessel should be held for prize proceedings was not adopted. The effect of the size and seaworthiness of merchant vessels upon their search at sea has been submitted to a board of naval experts, which reports that—
At no period in history has it been considered necessary to remove every package of a ship’s cargo to establish the character and nature of her trade or the service on which she is bound, nor is such removal necessary....
The facilities for boarding and inspection of modern ships are in fact greater than in former times; and no difference, so far as the necessities of the case are concerned, can be seen between the search of a ship of a thousand tons and one of twenty thousand tons—except possibly a difference in time—for the purpose of establishing fully the character of her cargo and the nature of her service and destination.... This method would be a direct aid to the belligerents concerned in that it would release a belligerent vessel overhauling the neutral from its duty of search and set it free for further belligerent operations.
(8) Turning to the character and sufficiency of the evidence of the contraband nature of shipments to warrant the detention of a suspected vessel or cargo for prize proceedings, it will be recalled that when a vessel is brought in for adjudication, courts of prize have heretofore been bound by well-established and long-settled practice to consider at the first hearing only the ship’s papers and documents, and the goods found on board, together with the written replies of the officers and seamen to standing interrogatories taken under oath, alone and separately, as soon as possible and without communication with or instruction by counsel, in order to avoid possibility of corruption and fraud.
(9) Additional evidence was not allowed to be introduced except upon an order of the court for “further proof,” and then only after the cause had been fully heard upon the facts already in evidence or when this evidence furnished a ground for prosecuting the inquiry further. This was the practice of the United States courts during the War of 1812, the American Civil War, and the Spanish-American War, as is evidenced by the reported decisions of those courts, and has been the practice of the British prize courts for over a century. This practice has been changed by the British prize court rules adopted for the present war by the order in council of August 5. Under these new rules there is no longer a “first hearing” on the evidence derived from the ship, and the prize court is no longer precluded from receiving extrinsic evidence for which a suggestion has not been laid in the preparatory evidence. The result is, as pointed out above, that innocent vessels or cargoes are now seized and detained on mere suspicion while efforts are made to obtain evidence from extraneous sources to justify the detention and the commencement of prize proceedings. The effect of this new procedure is to subject traders to risk of loss, delay, and expense, so great and so burdensome as practically to destroy much of the export trade of the United States to neutral countries of Europe.[Page 581]
(10) In order to place the responsibility for the delays of vessels and cargoes upon American claimants, the order in council of October 29, 1914, as pointed out in the British note of February 10,1 seeks to place the burden of proof as to the non-contraband character of the goods upon the claimant in cases where the goods are consigned “to order” or the consignee is not named or the consignee is within enemy territory. Without admitting that the onus probandi can rightfully be made to rest upon the claimant in these cases, it is sufficient for the purposes of this note to point out that the three classes of cases indicated in the order in council of October 29 apply to only a few of the many seizures or detentions which have actually been made by British authorities.
(11) The British contention that in the American Civil War the captor was allowed to establish enemy destination by “all the evidence at his disposal,” citing the Bermuda case (3 Wallace, 515), is not borne out by the facts of that case. The case of the Bermuda was one of “further proof,” a proceeding not to determine whether the vessel should be detained and placed in a prize court, but whether the vessel, having been placed in prize court, should be restored or condemned. The same ruling was made in the case of the Sir William Peel (5 Wallace, 517). These cases, therefore, can not be properly cited as supporting the course of a British captor in taking a vessel into port, there to obtain extrinsic evidence to justify him in detaining the vessel for prize proceedings.
(12) The further contention that the greatly increased imports of neutral countries, adjoining Great Britain’s enemies, raise a presumption that certain commodities, such as cotton, rubber, and others more or less useful for military purposes, though destined for those countries, are intended for reexportation to the belligerents who can not import them directly, and that this fact justifies the detention for the purpose of examination of all vessels bound for the ports of those neutral countries, notwithstanding the fact that most of the articles of trade have been placed on the embargo lists of those countries, can not be accepted as laying down a just or legal rule of evidence. Such a presumption is too remote from the facts and offers too great opportunity for abuse by the belligerent, who could, if the rule were adopted, entirely ignore neutral rights on the high seas and prey with impunity upon neutral commerce. To such a rule of legal presumption this Government can not accede, as it is opposed to those fundamental principles of justice which are the foundation of the jurisprudence of the United States and Great Britain.
(13) Before passing from the discussion of this contention as to the presumption raised by increased importations to neutral countries, this Government directs attention to the fact that His Majesty’s Government admit that the British exports to those countries have also materially increased since the present war began. Thus Great Britain concededly shares in creating a condition which is relied upon as a sufficient ground to justify the interception of American goods destined to neutral European ports. If British exports to those ports should be still further increased, it is obvious that, under the rule of evidence contended for by the British Government, the [Page 582] presumption of enemy destination could be applied to a greater number of American cargoes, and American trade would suffer to the extent that British trade benefited by the increase. Great Britain can not expect the United States to submit to such manifest injustice or to permit the rights of its citizens to be so seriously impaired.
(14) When goods are clearly intended to become incorporated in the mass of merchandise for sale in a neutral country, it is an unwarranted and inquisitorial proceeding to detain shipments for examination as to whether those goods are ultimately destined for the enemy’s country or use. Whatever may be the conjectural conclusions to be drawn from trade statistics, which, when stated by value, are of uncertain evidence as to quantity, the United States maintains the right to sell goods into the general stock of a neutral country, and denounces as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground that it suspects that the previous supply of such goods in the neutral country, which the imports renew or replace, has been sold to an enemy. That is a matter with which the neutral vendor has no concern and which can in no way affect his rights of trade. Moreover, even if goods listed as conditional contraband are destined to an enemy country through a neutral country, that fact is not in itself sufficient to justify their seizure.
(15) In view of these considerations, the United States, reiterating its position in this matter, has no other course but to contest seizures of vessels at sea upon conjectural suspicion and the practice of bringing them into port for the purpose, by search or otherwise, of obtaining evidence, for the purpose of justifying prize proceedings, of the carriage of contraband or of breaches of the order in council of March 11. Relying upon the regard of the British Government for the principles of justice so frequently and uniformly manifested prior to the present war, this Government anticipates that the British Government will instruct their officers to refrain from these vexatious and illegal practices.
(16) Secondly. The Government of the United States further desires to direct particular attention to the so-called “blockade” measures imposed by the order in council of March 11. The British note of July 23, 1915,1 appears to confirm the intention indicated in the note of March 15, 1915, to establish a blockade so extensive as to prohibit trade with Germany or Austria-Hungary, even through the ports of neutral countries adjacent to them. Great Britain, however, admits that it should not, and gives assurances that it will not, interfere with trade with the countries contiguous to the territories of the enemies of Great Britain. Nevertheless, after over six months’ application of the “blockade” order, the experience of American citizens has convinced the Government of the United States that Great Britain has been unsuccessful in her efforts to distinguish between enemy and neutral trade. Arrangements have been made to create in these neutral countries special consignees, or consignment corporations, with power to refuse shipments and to determine when the state of the country’s resources requires the importation of new commodities. American commercial interests are hampered by the [Page 583] intricacies of these arrangements, and many American citizens justly complain that their bona-fide trade with neutral countries is greatly reduced as a consequence, while others assert that their neutral trade, which amounted annually to a large sum, has been entirely interrupted.
(17) It makes this practice even more harassing to neutral traders that the British authorities require a consignor to prove that his shipments are not bound to an enemy of Great Britain, even when the articles are on the embargo list of the neutral country to which they are destined, and that notwithstanding the assertion in the last British note that interference with such trade by a belligerent can only take place “provided, of course, that he (the belligerent) can establish” that the commerce is with the enemy.
(18) While the United States Government was at first inclined to view with leniency the British measures which were termed in the correspondence but not in the order in council of March 11 a “blockade,” because of the assurances of the British Government that inconvenience to neutral trade would be minimized by the discretion left to the courts in the application of the order in council and by the instructions which it was said would be issued to the administrative and other authorities having to do with the execution of the so-called “blockade” measures, this Government is now forced to the realization that its expectations, which were fully set forth in its note of March 30, were based on a misconception of the intentions of the British Government. Desiring to avoid controversy and in the expectation that the administration of the order in council would conform to the established rules of international law, this Government has until now reserved the question of the actual validity of the order in council of March 11, in so far as it is considered by the Government of Great Britain to establish a blockade within the meaning of that term as understood in the law and the practice of nations; but in the circumstances now developed it feels that it can no longer permit the validity of the alleged blockade to remain unchallenged.
(19) The Declaration of Paris in 1856, which has been universally recognized as correctly stating the rule of international law as to blockade, expressly declares that “blockades, in order to be binding, must be effective; that is to say, maintained by force sufficient really to prevent access to the coast of the enemy.” The effectiveness of a blockade is manifestly a question of fact. It is common knowledge that the German coasts are open to trade with the Scandinavian countries and that German naval vessels cruise both in the North Sea and the Baltic and seize and bring into German ports neutral vessels bound for Scandinavian and Danish ports. Furthermore, from the recent placing of cotton on the British list of contraband of war, it appears that the British Government have themselves been forced to the conclusion that the blockade is ineffective to prevent shipments of cotton from reaching their enemies, or else that they are doubtful as to the legality of the form of blockade which they have sought to maintain.
(20) Moreover, it is an essential principle which has been universally accepted that a blockade must apply impartially to the ships of all nations. This was set forth in the Declaration of London, is found in the prize rules of Germany, France, and Japan, and has [Page 584] long been admitted as a basic principle of the law of blockade. This principle, however, is not applied in the present British “blockade,” for, as above indicated, German ports are notoriously open to traffic with the ports of Denmark, Norway, and Sweden. So strictly has this principle been enforced in the past that in the Crimean War the judicial committee of the Privy Council on appeal laid down, that if belligerents themselves trade with blockaded ports they can not be regarded as effectively blockaded. (The Franciska, Moore, P. C. 56.) This decision has special significance at the present time, since it is a matter of common knowledge that Great Britain exports and reexports large quantities of merchandise to Norway, Sweden, Denmark, and Holland, whose ports, so far as American commerce is concerned, she regards as blockaded. In fact, the British note of August 13 itself indicates that the British exports of many articles, such as cotton, lubricating oil, tobacco, cocoa, coffee, rice, wheat flour, barley, spices, tea, copra, etc., to these countries have greatly exceeded the British exports of the same articles for the corresponding period of 1914.1 The note also shows that there has been an important British trade, with these countries in many other articles, such as machinery, beef, butter, cotton waste, etc.
(21) Finally, there is no better settled principle of the law of nations than that which forbids the blockade of neutral ports in time of war. The Declaration of London, though not regarded as binding upon the signatories because not ratified by them, has been expressly adopted by the British Government without modification as to blockade in the British order in council of October 29, 1914. Article 18 of the Declaration declares specifically that “the blockading forces must not bar access to neutral ports or coasts.” This is, in the opinion of this Government, a correct, statement of the universally accepted law as it exists to-day and as it existed prior to the Declaration of London. The meaning of this statement is elucidated by Mr. Renault in the report of the drafting committee upon the convention, in which he states:
This rule has been thought necessary the better to protect the commercial interests of neutral countries; it completes Article 1, according to which a blockade must not extend beyond the ports and coasts, of the enemy, which implies that, as it is an operation of war, it must not be directed against a neutral port, in spite of the importance to a belligerent of the part played by that port in supplying his adversary.
As the conference assembled at London upon the invitation of the British Government, it is important to recall the instruction of Sir Edward Grey to the British delegates, “setting out the views of His Majesty’s Government, founded on the decisions of the British courts,” in which he says:
A blockade must be confined to the ports and coast of the enemy, but it may be instituted of one port or of several ports or of the whole of the seaboard of the enemy. It may be instituted to prevent the ingress only or egress only, or both.
Where the ship does not intend to proceed to the blockaded port, the fact that goods on board are to be sent on by sea, or by inland transport is no ground for condemnation.
In support of this announcement, Sir Edward Grey referred to several decisions of British prize courts, among which an early one of 1801 held that goods shipped from London to Emden, thence inland or by canal to Amsterdam, then blockaded by sea, were not subject to condemnation for breach of blockade. (Jonge Pieter, 4 C. R., 79.) This has been the rule for a century, so that it is scarcely necessary to recall that the Matamoras cases, well known to the British Government, support the same rule, that neutral ports may not be blockaded, though “trade with unrestricted inland commerce between such a port and the enemy’s territory impairs undoubtedly, and very seriously impairs, the value of a blockade of the enemy’s coast.”
(22) Without mentioning the other customary elements of a regularly imposed blockade, such as notification of the particular coast line invested, the imposition of the penalty of confiscation, etc., which are lacking in the present British “blockade” policy, it need only be pointed out that, measured by the three universally conceded tests above set forth, the present British measures can not be regarded as constituting a blockade in law, in practice, or in effect.
(23) It is incumbent upon the United States Government, therefore, to give the British Government notice that the blockade, which they claim to have instituted under the order in council of March 11, can not be recognized as a legal blockade by the United States.
(24) Since the Government of Great Britain has laid much emphasis on the ruling of the Supreme Court of the United States in the Springbok case, that goods of contraband character seized while going to the neutral port of Nassau, though actually bound for the blockaded ports of the South, were subject to condemnation, it is not inappropriate to direct attention to the British view of this case in England prior to the present war, as expressed by Sir Edward Grey in his instructions to the British delegates to the London Conference in 1908:
It is exceedingly doubtful whether the decision of the Supreme Court was in reality meant to cover a case of blockade-running in which no question of contraband arose. Certainly if such was the intention, the decision would pro tanto be in conflict with the practice of the British courts. His Majesty’s Government sees no reason for departing from that practice and you should endeavour to obtain general recognition of its correctness.
It may be pointed out also that the circumstances surrounding the Springbok case were essentially different from those of the present day to which the rule laid down in that case is sought to be applied. When the Springbok case arose, the ports of the Confederate States were effectively blockaded by the naval forces of the United States, though no neutral ports were closed, and a continuous voyage through a neutral port required an all-sea voyage terminating in an attempt to pass the blockading squadron.
(25) Thirdly. It appears to be the position of Great Britain that if, as the United States alleges, American citizens or American interests are directly and adversely affected by the British policies of contraband and non-intercourse, resulting in interference with ships and cargoes, they should seek redress in the prize courts which the British Government have established, and that, pending the exhaustion of such legal remedies with the result of a denial of justice, [Page 586] the British Government “can not continue to deal through the diplomatic channels with the individual cases.”
(26) It is declared that this was the course followed by the United States during the American Civil War and the Spanish War, and that both countries have supported the practice by allowing their prize-court decisions, when shown to be unjust or inadequate, to be reviewed by an international tribunal, as was done under the treaties of 1794 and 1871. The ground upon which this contention is put forth, and the results which would follow if the course of procedure suggested were accepted, give the impression that His Majesty’s Government do not rely upon its soundness or strength. Nevertheless, since it has been advanced, I can not refrain from presenting certain considerations which will show that the proposed course embodies the form rather than the substance of redress. The cases which the British Government would have claimants present to their prize courts are essentially different from cases arising wholly within the jurisdiction of a foreign country. They result from acts committed by the British naval authorities upon the high seas, where the jurisdiction over neutral vessels is acquired solely by international law. Vessels of foreign nationality, flying a neutral flag and finding their protection in the country of that flag, are seized without facts warranting a reasonable suspicion that they are destined to blockaded ports of the enemy or that their cargoes are contraband, although the possession of such facts is, by international law, essential to render a seizure legal. The officers appear to find their justification in the orders in council and regulations of the British Government, in spite of the fact that in many of the present cases the orders in council and the regulations for their enforcement are themselves complained of by claimants as contrary to international law. Yet the very courts which, it is said, are to dispense justice to dissatisfied claimants are bound by the orders in council. This is unmistakably indicated to be the case in the British note of July 31, which states that—
British prize courts “according to the ancient form of commission under which they sit, are to determine cases according to the course of Admiralty and the law of nations and the statutes, rules, and regulations for the time being in force in that behalf.”1
This principle, the note adds, has recently been announced and adhered to by the British prize court in the case of the Zamora. It is manifest, therefore, that if prize courts are bound by the laws and regulations under which seizures and detentions are made, and which claimants allege are in contravention of the law of nations, those courts are powerless to pass upon the real ground of complaint or to give redress for wrongs of this nature. Nevertheless, it is seriously suggested that claimants are free to request the prize court to rule upon a claim of conflict between an order in council and a rule of international law. How can a tribunal fettered in its jurisdiction and procedure by municipal enactments declare itself emancipated from their restrictions and at liberty to apply the rules of international law with freedom? The very laws and regulations which bind the court are now matters of dispute between the Government of the United States and that of His Britannic Majesty. If Great [Page 587] Britain followed, as she declares that she did, the course of first referring claimants to local remedies in cases arising out of American wars, it is presumed that she did so because of her knowledge or understanding that the United States had not sought to limit the jurisdiction of its courts of prize by instructions and regulations violative of the law and practice of nations, or open to such objection.
(27) The British note of February 10 states that the British Government in the American Civil War—
In spite of remonstrances from many quarters, 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 opportunity for redress in those courts had been exhausted.1
The Government of the United States recalls that during the progress of that war Great Britain in several instances demanded through diplomatic channels damages for seizures and detentions of British ships alleged to have been made without legal justification. Among these may be mentioned the cases of the Magicienne, the Don Jose , the Labuan, and the Saxon. Two of these cases were, at the time the demands were made, before American prize courts for adjudication. It is understood also that during the Boer War, when British authorities seized the German vessels, the Hertzog, the General, and the Bundersrath, and released them without prize proceedings, compensation for damages suffered was arranged through diplomatic channels.
(28) There is, furthermore, a real and far-reaching injury for which prize courts offer no means of reparation. It is the disastrous effect of the methods of the Allied governments upon the general right of the United States to enjoy its international trade free from unusual and arbitrary limitations imposed by belligerent nations. Unwarranted delay and expense in bringing vessels into port for search and investigation upon mere suspicion has a deterrent effect upon trade ventures, however lawful they may be, which can not be adequately measured in damages. The menace of interference with legal commerce causes vessels to be withdrawn from their usual trade routes and insurance on vessels and cargoes to be refused, while exporters for the same reason are unable or unwilling to send their goods to foreign markets, and importers dare not buy commodities abroad because of fear of their illegal seizure or because they are unable to procure transportation. For such injuries there can be no remedy through the medium of courts established to adjust claims for goods detained or condemned. For specific injuries suffered by private interests, prize courts, if they are free to apply the law of nations, might mete out an adequate indemnity, but for the injury to the trade of a nation by the menace of unwarranted interference with its lawful and established pursuit there can manifestly be found no remedy in the prize courts of Great Britain, to which United States citizens are referred for redress.
(29) There is another ground why American citizens can not submit their wrongs arising out of undue detentions and seizures to British prize courts for reparation, which I can not pass over unnoticed. It is the manner in which British courts obtain jurisdiction of such cases. The jurisdiction over merchant vessels on the high [Page 588] seas is that of the nation whose flag it rightfully flies. This is a principle of the law and practice of nations fundamental to the freedom of the high seas. Municipal enactments of a belligerent power can not confer jurisdiction over or establish rules of evidence governing the legality of seizures of vessels of neutral nationality on the high seas. International law alone controls the exercise of the belligerent right to seize and detain such vessels. Municipal laws and regulations in violation of the international rights of another nation can not be extended to the vessels of the latter on the high seas so as to justify a belligerent nation bringing them into its ports, and, having illegally brought them within its territorial jurisdiction, compelling them to submit to the domestic laws and regulations of that nation. Jurisdiction obtained in such a manner is contrary to those principles of justice and equity which all nations should respect. Such practice should invalidate any disposition by a municipal court of property thus brought before it. The Government of the United States has, therefore, viewed with surprise and concern the attempt of His Majesty’s Government to confer upon the British prize courts jurisdiction by this illegal exercise of force in order that these courts may apply to vessels and cargoes of neutral nationalities, seized on the high seas, municipal laws and orders which can only rightfully be enforceable within the territorial waters of Great Britain, or against vessels of British nationality when on the high seas.
(30) In these circumstances the United States Government feels that it can not reasonably be expected to advise its citizens to seek redress before tribunals which are, in its opinion, unauthorized by the unrestricted application of international law to grant reparation, nor to refrain from presenting their claims directly to the British Government through diplomatic channels.
(31) This Government is advised that vessels and cargoes brought in for examination prior to prize proceedings are released only upon condition that costs and expenses incurred in the course of such unwarranted procedure, such as pilotage, wharfage, demurrage, harbor dues, warehousage, unlading costs, etc., be paid by the claimants or on condition that they sign a waiver of right to bring subsequent claims against the British Government for these exactions. This Government is loathe to believe that such ungenerous treatment will continue to be accorded American citizens by the Government of His Britannic Majesty, but in order that the position of the United States Government may be clearly understood, I take this opportunity to inform your excellency that this Government denies that the charges incident to such detentions are rightfully imposed upon innocent trade, or that any waiver of indemnity exacted from American citizens under such conditions of duress can preclude them from obtaining redress through diplomatic channels or by whatever other means may be open to them.
(32) Before closing this note, in which frequent reference is made to contraband traffic and contraband articles, it is necessary, in order to avoid possible misconstruction, that it should be, clearly understood by His Majesty’s Government that there is no intention in this discussion to commit the Government of the United States to a policy of waiving any objections which it may entertain as to the propriety and right of the British Government to include in their list of contraband of war certain articles which have been so included. The [Page 589] United States Government reserves the right to make this matter the subject of a communication to His Majesty’s Government at a later day.
(33) I believe it has been conclusively shown that the methods sought to be employed by Great Britain to obtain and use evidence of enemy destination of cargoes bound for neutral ports, and to impose a contraband character upon such cargoes, are without justification; that the blockade, upon which such methods are partly founded, is ineffective, illegal, and indefensible; that the judicial procedure offered as a means of reparation for an international injury is inherently defective for the purpose; and that in many cases jurisdiction is asserted in violation of the law of nations. The United States, therefore, can not submit to the curtailment of its neutral rights by these measures, which are admittedly retaliatory, and therefore illegal, in conception and in nature, and intended to punish the enemies of Great Britain for alleged illegalities on their part. The United States might not be in a position to object to them if its interests and the interests of all neutrals were unaffected by them, but, being affected, it can not with complacence suffer further subordination of its rights and interests to the plea that the exceptional geographic position of the enemies of Great Britain require or justify oppressive and illegal practices.
(34) The Government of the United States desires, therefore, to impress most earnestly upon His Majesty’s Government that it must insist that the relations between it and His Majesty’s Government be governed, not by a policy of expediency, but by those established rules of international conduct upon which Great Britain in the past has held the United States to account when the latter nation was a belligerent engaged in a struggle for national existence. It is of the highest importance to neutrals, not only of the present day, but of the future, that the principles of international right be maintained unimpaired.
(35) This task of championing the integrity of neutral rights, which have received the sanction of the civilized world, against the lawless conduct of belligerents arising out of the bitterness of the great conflict which is now wasting the countries of Europe, the United States unhesitatingly assumes, and to the accomplishment of that task it will devote its energies, exercising always that impartiality which from the outbreak of the war it has sought to exercise in its relations with the warring nations.
I enclose as supplements to this instruction the United States Navy order of August 18, 1862, and a statement regarding vessels detained by British authorities. These two documents should be transmitted as enclosures in your note to Sir Edward Grey.
I am [etc.]