File No. 763.72111/3972a

The Counselor for the Department of State ( Polk ) to Representative John J. Fitzgerald

Sir: In response to your oral request of recent date for information with regard to action taken by the Department in protest to certain acts of the belligerents in the present war in violation of the principles of international law, I have the honor to submit for your information the enclosed memorandum. I have sent you under separate cover a set of the diplomatic correspondence between the United States and the belligerent governments as published to date.

I have [etc.]

Frank L. Polk

Memorandum 1

1. Submission to censorship of the mails

With reference to this matter, the following statement was prepared by the Department of State and submitted to Senator William J. Stone, Chairman of the Committee on Foreign Relations of the Senate, in a letter dated January 20, 1915, which has been published as Senate Document No. 716, 63d Congress, 3d Session:

As to the censorship of mails, Germany as well as Great Britain has pursued this course in regard to private letters falling into their hands. The unquestioned right to adopt a measure of this sort makes objection to it inadvisable.

It has been asserted that American mail on board of Dutch steamers has been repeatedly destroyed. No evidence to this effect has been filed with the Government, and therefore no representations have been made. Until such a case is presented in concrete form, this Government would not be justified in presenting the matter to the offending belligerent. Complaints have come to the Department that mail on board neutral steamers has been opened and detained, but there seem to be but few cases where the mail from neutral countries has not been finally delivered. When mail is sent to belligerent countries open and is of a neutral and private character it has not been molested, so far as the Department is advised.

While it has been charged that the British Government began holding up the mails as early as August 1914, and that complaints were received in Washington in large numbers at that time, this is incorrect. As shown in the above quotation from the letter to Senator Stone, dated January 20, 1915, no case had been presented up to that time upon which representations to the offending belligerent would have been warranted. Later, however, upon cases being presented in concrete form of mails having been removed by British authorities from the Dutch vessel Noorderdijk on December 20, and from the Dutch steamer Nieuw Amsterdam on December 23, 1915, and other vessels, the [Page 4] Department promptly on January 4, 1916, instructed Ambassador Page “to lay this matter immediately before the British Government in a formal and vigorous protest and press for a discontinuance of these unwarranted interferences with inviolable mails. Impress upon Sir Edward Grey the necessity for prompt action in this matter.” In this note the Department stated, with regard to these seizures of mail by the British Government:

The Department can not admit the right of British authorities to seize neutral vessels plying directly between American and neutral European ports without touching at British ports, to bring them into port, and, while there, to remove or censor mails carried by them.

On May 24, 1916, the United States again protested against continued interferences with letter mail by the British and French authorities, and stated:

The Government of the United States, in view of the improper methods employed by the British and French authorities in interrupting mails passing between the United States and the other neutral countries and between the United States and enemies of Great Britain, can no longer tolerate the wrongs which citizens of the United States have suffered and continue to suffer through these methods. To submit to a lawless practice of this character would open the door to repeated violations of international law by the belligerent powers on the ground of military necessity of which the violator would be the sole judge. . . . Only a radical change in the present British and French policy, restoring to the United States its full rights as a neutral, will satisfy this country.

2. That the United States failed to take any action with regard to Great Britain’s orders in council with regard to contraband and measures tending to blockade Germany

As early as December 28 [26?], 1914, the United States protested vigorously to the British Government against the seizure and detention in English ports of various vessels laden with American goods destined to neutral ports in Europe.

In this connection I may point out that in a note dated February 16, 1915, the German Government refers to this protest and says:

It will not be necessary for the German Government to go into detail on this point, especially since the American note to the British Government dated December 28, 1914, which has been brought to their knowledge, has dealt with this point very aptly.

On March 5, 1915, the United States protested against the position taken by the British and French Governments, as set forth in the note of the British Ambassador of March 1, 1915, that the “British and French Governments will therefore hold themselves free to detain and take into ports ships carrying goods of presumed enemy destination, ownership, or origin.”

On March 30, upon receipt of the notice of the order in council setting forth the new regulations to be applied by Great Britain and France to prevent all supplies reaching Germany, the United States vigorously protested the illegality of these acts, which if enforced would violate neutral rights. It was pointed out that the proposed measures could not be considered a legal blockade, and that, if enforced, many interferences with our legitimate trade would occur which would impose upon the British Government heavy responsibilities for acts of the British authorities clearly subversive of the rights of neutral nations on the high seas, and that this Government would expect of the British Government full reparation for every act which under the rules of international law constitutes a violation of neutral rights.

As stated in our note to Great Britain of October 22, 1914:

This Government will insist that the rights and duties of the United States and its citizens in the present war be defined by the existing rules of international law and the treaties of the United States, irrespective of the provisions of the Declaration of London, and that this Government reserves to itself the right to enter protest or demand in each case in which those rights and duties so defined are violated or their free exercise interfered with, by the authorities of the British Government.

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and on July 14, 1915, we stated to the British Government that:

The United States must insist upon their rights under the principles and rules of international law as hitherto established, governing neutral trade in time of war, without limitation or impairment by orders in council or other municipal legislation by the British Government, and will not recognize the validity of prize court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens under international law.

In fact this Government has repeatedly stated that it would refuse to recognize the legality of the so-called blockade of Germany by Great Britain and her allies, and has consistently protested against the practice of Great Britain of bringing neutral vessels into her ports and there searching them for evidence of contraband character of cargo, or of an intention to evade the non-intercourse measures of Great Britain, when no proof of contraband or enemy destination was obtained at time of seizure.

On October 21, 1915, the United States protested in a note to Great Britain against violations of international law authorized by orders in council:

The methods sought to be employed 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 partially 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;
That in many cases jurisdiction is asserted in violation of the law of nations;

and insisted that the relations between the United States and Great Britain be governed not by a policy of expediency but by established rules of international law.

With reference to the British Trade with the Enemy Act, approved December 23, 1915, the apparent object of which was to prevent any person doing business in the United Kingdom from trading with enemies of Great Britain or persons having enemy association in any other part of the world, the Department on January 25, 1916, pointed out to the British Government that the act had been framed without proper regard for the right of persons domiciled in the United States, whether they be American subjects or subjects of countries at war with Great Britain, to carry on trade with persons in belligerent countries, and this Government reserved the “right to protest against the application of this act in so far as it affects the trade of the United States, and to contest the legality or rightfulness of imposing restrictions upon the freedom of American trade in this manner.”

On July 26, 1916, upon the announcement by Great Britain that she had placed the names of certain persons, firms, and corporations in the United States upon a proscriptive “black list,” and had forbidden all financial dealings between them and citizens of Great Britain, the United States protested in the most decided terms against this policy of arbitrary interference with neutral trade, and stated that it regarded the practice of the black list” as inconsistent with that true justice, sincere amity, and impartial fairness which should characterize the dealings of friendly governments with one another.”

3. That the United States tookno notice of the declaration by Great Britain on November 5, 1914, that the entire North Sea was to be considered as a military area, the British having laid mine fields

The illegal use of mines in the present war has not been confined to any one belligerent. Both sides have violated the rights of neutrals and have sown large areas of the high seas with mines, the result of which has been the destruction of a number of neutral vessels.

On August 7, 1914, the German Government notified all neutral countries that the trade routes to English ports would be closed by mines.

In a note dated August 11, 1914, the British Ambassador alleged that Germany had scattered contact mines indiscriminately about the North Sea, and informed this Government that in view of this fact the British Admiralty would adopt similar methods in self-defense.

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On August 13 the Secretary of State protested against such action on the part of Great Britain, stating that even “if an enemy of His Majesty’s Government has, as asserted, endangered neutral commerce by an act in violation of the Hague convention, which cannot be justified on the ground of military necessity,” this country saw no reason for Great Britain adopting a similar course which would add further to the dangers to peaceful navigation of the high seas by vessels of neutral powers.

On November 3, 1914, Great Britain, alleging that during the past week the German Government had scattered mines indiscriminately in the open seas and on main trade routes from America to Liverpool via the north of Ireland, that peaceful merchant ships have already been blown up, and that the mines were laid by some merchant vessels flying neutral flags, declared the North Sea a military area, and that all ships that did not follow an indicated course would be in grave danger from the mines it had been necessary to lay.

On February 4, 1915, Germany in retaliation for various alleged illegal acts on the part of Great Britain, notified neutral nations that “the waters surrounding Great Britain and Ireland, including the whole English Channel, are hereby declared a war zone.” It was indicated at the same time that they would ignore the rule of international law requiring visit and search and would sink merchantmen without first ascertaining whether they were neutral or enemy ships and without making provisions for the safety of passengers and crew.

To this proclamation the United States on February 10, 1915, protested, and pointed out that such action on the part of Germany would endanger the lives and property of citizens of neutral and friendly nations, and would violate the principles of international law. In its note the United States stated that:

The Government of the United States has not consented to or acquiesced in any measures which may have been taken by the other belligerent nations in the present war which operate to restrain neutral trade, but has, on the contrary, taken in all such matters a position which warrants it in holding those governments responsible in the proper way for any unlawful effects upon American shipping which the accepted principles of international law do not justify, and that it therefore regards itself as free in the present instance to take, with a clear conscience and upon accepted principles, the position indicated in this note.

On February 20, 1915, the United States in the interest of neutral commerce, sent identic notes to Germany and Great Britain in which the hope was expressed that these two belligerents “may through reciprocal concessions, find a basis for agreement which will relieve neutral ships engaged in peaceful commerce from the great dangers which they will incur on the high seas adjacent to the coasts of the belligerents,” and outlined a course of action with regard to the sowing of mines and the importation of foodstuffs into Germany, to which it was hoped they would agree. Unfortunately it was not possible to secure the consent of the two Governments to the proposal.

4. That the United States has been unneutral in enforcing a censorship of wireless, but permitting freedom of communication by submarine cables

The reason that wireless messages and cable messages require a different treatment by a neutral government is as follows: Communications by wireless cannot be interrupted by a belligerent. With a submarine cable it is otherwise. The possibility of cutting cables exists. If a belligerent possesses naval superiority, the cable is cut, as was the German cable near the Azores by one of Germany’s enemies and as was the British cable near Fanning Island by a German naval force. Since a cable is subject to hostile attack, the responsibility falls upon the belligerent and not upon the neutral to prevent cable communication.

A more important reason, however, at least from the point of view of a neutral government, is that messages sent out from a wireless station in neutral territory may be received by belligerent warships on the high seas. If these messages, whether plain or in cipher, direct the movements of warships or convey to them information as to the location of an enemy’s public or private vessels, the neutral territory becomes a base of naval operations, to permit which would be essentially unneutral.

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As a wireless message can be received by all stations and vessels within a given radius, every message in cipher, whatever its intended destination, must be censored; otherwise military information may be sent to warships off the coast of a neutral. It is manifest that a submarine cable is incapable of becoming a means of direct communication with a warship on the high seas. Hence its use can not, as a rule, make neutral territory a base for the direction of naval operations.

5. That the United States has failed to prosecute agents of belligerent governments for recruiting in the United States in violation of our neutrality and penal laws

The prosecution of persons alleged to have violated the laws of the United States is entrusted to the Department of Justice. All complaints received by the State Department with regard to violations of our neutrality and penal laws by persons alleged to have recruited within the territory of the United States, for any of the belligerent countries, have been promptly referred to the Department of Justice for investigation and such action as the officials of that department might think proper. The State Department has not and cannot comment with regard to the conduct of these cases by another department of the Government. Application should be made to the Department of Justice for any information with regard to this matter.

6. That the Department of Labor has issued instructions that a person shall not be deemed to have lost his American citizenship by enlisting in the military forces of one of the belligerents

As this refers to instructions claimed to have been issued by another department, inquiry should be made of the Department of Labor for any information desired with regard to their construction and enforcement of the immigration laws.

As a matter of fact, however, it may be stated that apart from municipal legislation to the contrary, military service by a citizen of a neutral country in the armed forces of a belligerent has not been held by this Government, or by other nations, to expatriate the one so serving. This obviously applies to citizens of a neutral country serving in the ranks of a belligerent on either side of a conflict.

7. That the agreement with the Republic of Panama with reference to the coaling of warships in the Panama Canal Zone was unneutral

By proclamation of November 13, 1914, certain special restrictions were placed on the coaling of warships or their tenders or colliers in the Canal Zone. These regulations were framed through the collaboration of the State, Navy, and War Departments and without the slightest reference to favoritism to the belligerents. Before these regulations were proclaimed, war vessels could procure coal of the Panama Railway in the zone ports, but no belligerent vessels are known to have done so. Under the proclamation fuel may be taken on by belligerent warships only with the consent of the canal authorities and in such amounts as will enable them to reach the nearest accessible port; and the amount so taken on shall be deducted from the amount procurable in United States ports within three months thereafter.

Now it is charged that the United States has been partial because Great Britain and not Germany happens to have colonies in the near vicinity where British ships may coal, while Germany has no such coaling facilities. Thus, it is intimated the United States should balance the inequalities of geographical position by refusing to allow any warships of belligerents to coal in the canal until the war is over. Since at the time this complaint was first made, no German warships had sought to obtain coal in the Canal Zone, and since no German warships appear to be now upon the high seas, the charge of discrimination rests upon a possibility of warfare which has so far failed to materialize.

8. That the State Department had issued a warning to Americans with German names against traveling in countries hostile to Germany

The State Department has issued no such warning. Shortly after the outbreak of the present war the Department issued a printed circular entitled [Page 8] Notice to American Citizens who Contemplate Visiting Belligerent Countries, which contained the following statements:

American citizens are advised to avoid visiting unnecessarily countries which are at war, and particularly to avoid, if possible, passing through or from a belligerent country to a country which is at war therewith.

It is especially important that naturalized American citizens refrain from visiting their countries of origin and countries which are at war therewith.

This circular was afterwards slightly amended, and now appears under date of October 4, 1915. Subsequently, the Department decided that it was necessary to require each applicant for a passport to state definitely what countries he wished to visit and for what object, and to write upon the face of the passport a statement concerning these matters, in accordance with the statement of the applicant. The Department issues passports to persons who appear to be going to belligerent countries because of some reasonable necessity, but endeavors to avoid the issuance of passports to persons who desire to visit belligerent countries merely for curiosity or pleasure or for any object which appears to be improper. These rules are applied equally to persons going to the belligerent countries on either side. In connection with this matter it may be observed that the Embassy at Berlin reported to the Department some months ago that German regulations required persons desiring to enter Germany to show some urgent necessity for doing so. The Department has not declined to issue passports to American citizens merely because they bear names indicating German or Austrian origin or descent. It is quite true that the Department has been informed that French diplomatic and consular officers have received general instructions not to visa passports of any persons who were born in Germany or Austria, or whose fathers were born in either of those countries, and the Department has informed inquirers to that effect. The Department has not, however, refused to issue passports to American citizens merely because they appeared to be of German birth or descent, even though they wished to visit France or the Allies.

The Department has endeavored, so far as possible, to inform American citizens regarding the regulations of the belligerent countries in regard to entry and travel therein, and the necessity of having their passports visaed.

It is doubtless true that in the early months of the war bearers of American passports were arrested in all of the countries at war. In every case of apparent illegal arrest the United States Government entered vigorous protests with request for release. As stated in the letter of the Department, dated January 20, 1915, to Senator Stone, Chairman of the Senate Committee on Foreign Relations:

There have come to the Department’s notice authentic cases in which American passports have been fraudulently obtained and used by certain German subjects. There are indications that a systematic plan has been devised to obtain American passports through fraud for German officers and reservists desiring to return to Germany. Such fraudulent use of passports by Germans themselves can have no other effect than to cast suspicion upon American passports in general.

10. Change of policy in regard to loans to belligerents

War loans in this country were disapproved because deemed inconsistent with the spirit of neutrality. At the very beginning of the present war this Government announced that in its judgment loans by American bankers to any foreign nation which is at war is inconsistent with the true spirit of neutrality and refused in any way to facilitate such loans.

While expressing its position with regard to these loans, there was no way in which the Government could prevent private loans being made to the belligerents since such loans were in violation of no law of the United States and there was no way in which those making the loans could be prosecuted. The Government has in no way facilitated or encouraged any loans that may have been made.

The State Department has from time to time received information, directly or indirectly, to the effect that belligerent nations had arranged with banks in the United States for credits for various sums. While loans to belligerents have been disapproved, this Government has not felt that it was justified in interposing objection to the credit arrangements which have been brought to its [Page 9] attention. It has neither approved these credits nor disapproved. It has simply taken no action in the premises and expressed no opinion.

11. That the Department of State has refused to issue definite statement as to whether a certain report that no official proof of German atrocities in Belgium had ever been discovered, was on file in the State Department

The Department has denied in the press and also in answer to inquiries that there is any such report as that referred to above on file in the Department. So recently as March 1916, the Department advised Representative Jacob E. Meeker, in response to his request of March 13, 1916, for copies of documents which he had been informed “were on file in the Department exonerating Germany from the charge of having committed atrocities in Belgium,” that a search of the files of the Department had “failed to reveal any official records of the nature referred to.”

12. That this Government has been unneutral in its conduct and unfriendly in its attitude towards Germany and Austria

If any American citizens, partizans of Germany and Austria-Hungary, feel that this administration is acting in a way injurious to the cause of those countries, this feeling results from the fact that on the high seas the German and Austro-Hungarian naval power has from the commencement of the present war been inferior to the British. It is the business of a belligerent operating on the high seas, not the duty of a neutral, to prevent contraband from reaching an enemy. Those in this country who sympathize with Germany and Austria-Hungary appear to assume that some obligation rests upon this Government in the performance of its neutral duty to prevent all trade in contraband, and thus to equalize the difference due to the relative naval strength of the belligerents. No such obligation exists. It would be an unneutral act on the part of this Government to adopt such a policy if the Executive had the power to do so. If Germany and Austria-Hungary cannot import contraband from this country, it is not, because of that fact, the duty of the United States to close its markets to the Allies. The markets of this country are open upon equal terms to all the world, to every nation, belligerent or neutral.

There is no power in the Executive to prevent the sales of munitions of war to the belligerents. The duty of a neutral to restrict trade in munitions of war has never been imposed by international law or municipal statute. It has never been the policy of this Government to prevent the shipment of arms or ammunition into belligerent territory, except in the case of neighboring American republics, and then only when civil strife prevailed. Even to this extent the belligerents in the present conflict, when they were neutrals, have never, so far as the records disclose, limited the sale of munitions of war. It is only necessary to point to the enormous quantities of arms and ammunition furnished by manufacturers in Germany to the belligerents in the Russo-Japanese war and the recent Balkan wars to establish the general recognition of the propriety of the trade by a neutral nation.

It may be added that on the 15th of December, 1914, the German Ambassador, by direction of his Government, presented a copy of a memorandum of the Imperial German Government which, among other things, set forth the attitude of that Government toward traffic in contraband of war by citizens of neutral countries. The Imperial Government stated that “under the general principles of international law, no exception can be taken to neutral states letting war material go to Germany’s enemies from or through neutral territory.”

  1. The original text of this memorandum contained no heading No. 9.