File No. 763.72112/2461

The British Ambassador ( Spring Rice ) to the Secretary of State

No. 107

Sir: I have the honour, in obedience to instructions received from Sir Edward Grey, His Majesty’s Principal Secretary of State for Foreign Affairs, to transmit to you herewith a memorandum embodying the reply to the representations of your Government in regard to restrictions on trade, which were communicated to Sir Edward Grey in Mr. Page’s note of November 5 last, in pursuance to your instructions dated October 21.2

I have [etc.]

Cecil Spring Rice
[Enclosure]

memorandum

The communication addressed by the United States Ambassador in London to Sir E. Grey on the 5th November 1915, has received the careful attention of His Majesty’s Government in consultation with their allies the French Government, and His Majesty’s Government have now the honour to make the following reply:

[Page 369]

2. The first section (paragraphs 3–15) of the United States note relates to cargoes detained by the British authorities in order to prevent them from reaching an enemy destination, and the complaint of the United States Government is summarised in paragraph 33 to the effect 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.

3. The wording of this summary suggests that the basis of the complaint of the United States Government is not so much that the shipments intercepted by the naval forces were really intended for use in the neutral countries to which they were despatched, as that the despatch of goods to the enemy countries has been frustrated by methods which have not been employed by belligerent nations in the past. It would seem to be a fair reply to such a contention that new devices for despatching goods to the enemy must be met by new methods of applying the fundamental and acknowledged principle of the right to intercept such trade.

4. The Question whether the exercise of the right of search can be restricted to search at sea was dealt with in Sir E. Grey’s note of the 7th January 1915, and His Majesty’s Government would again draw attention to the facts that information has constantly reached them of attempts to conceal contraband intended for the enemy in innocent packages, and that these attempts can only be frustrated by examination of the ship and cargo in port. Similarly, in Sir E. Grey’s note of the 10th February 1915, it was pointed out that the size of modern steamships, and their capacity to navigate the waters where the Allied patrols have to operate whatever the conditions of the weather, frequently render it a matter of extreme danger, if not of impossibility, even to board the vessels unless they are taken into calm water for the purpose. It is unnecessary to repeat what was said in that note. There is nothing that His Majesty’s Government could withdraw, or that the experience of the officers of the Allied fleets has tended to show was Inaccurate.

5. When visit and search at sea are possible, and when a search can be made there which is sufficient to secure belligerent rights, it may be admitted that it would be an unreasonable hardship on merchant vessels to compel them to come into port, and it may well be believed that maritime nations have hesitated to modify the instructions to their naval officers that it is at sea that these operations should be carried out, and that undue deviation of the vessel from her course must be avoided. That, however, does not affect the fact that it would be impossible under the conditions of modern warfare to confine the rights of visit and search to an examination of the ship at the place where she is encountered without surrendering a fundamental belligerent right.

6. The effect of the size and seaworthiness of merchant vessels upon their search at sea is essentially a technical question, and accordingly His Majesty’s Government have thought it well to submit the report of the board of naval experts, quoted by the United States Ambassador in paragraph 7 of this note, to Admiral Sir John Jellicoe for his observations. The unique experience which this officer has gained as the result of more than 18 months in command of the Grand Meet renders his opinion of peculiar value. His report is as follows:

It is undoubtedly the case that the size of modern vessels is one of the factors which renders search at sea far more difficult than in the days of smaller vessels. So far as I know, it has never been contended that it is necessary to remove every package of a ship’s cargo to establish the character and nature of her trade, etc.; but it must be obvious that the larger the vessel and the greater the amount of cargo, the more difficult does examination at sea become, because more packages must be removed.

This difficulty is much enhanced by the practice of concealing contraband in bales of hay and passengers’ luggage, casks, etc., and this procedure, which has undoubtedly been carried out, necessitates the actual removal of a good deal of cargo for examination in suspected cases. This removal cannot be carried out at sea, except in the very finest weather.

Further, in a large ship the greater bulk of the cargo renders it easier to conceal contraband, especially such valuable metals as nickel, quantities of which can easily be stowed in places other than the holds of a large ship.

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I entirely dispute the contention, therefore, advanced in the American note, that there is no difference between the search of a ship of 1,000 tons and one of 20,000 tons. I am sure that the fallacy of the statement must be apparent to anyone who has ever carried out such a search at sea.

There are other facts, however, which render it necessary to bring vessels into port for search. The most important is the manner in which those in command of German submarines, in entire disregard of international law and of their own prize regulations, attack and sink merchant vessels on the high seas, neutral as well as British, without visiting the ship and therefore without any examination of the cargo. This procedure renders it unsafe for a neutral vessel which is being examined by officers from a British ship to remain stopped on the high seas, and it is therefore in the interests of the neutrals themselves that the examination should be conducted in port.

The German practice of misusing United States passports in order to procure a safe conduct for military persons and agents of enemy nationality makes it necessary to examine closely all suspect persons, and to do this effectively necessitates bringing the ship into harbour.

7. Sir John Jellicoe goes on to say:

The difference between the British and the German procedure is that we have acted in the way which causes the least discomfort to neutrals. Instead of sinking neutral ships engaged in trade with the enemy, as the Germans have done in so many cases in direct contravention of Article 113 of their own naval prize regulations, 1909, in which it is laid down that the commander is only justified in destroying a neutral ship which has been captured if—

(a)
She is liable to condemnation, and
(b)
The bringing in might expose the warship to danger or imperil the success of the operations in which she is engaged at the time—

we examine them, giving as little inconvenience as modern naval conditions will allow, sending them into port only where this becomes necessary.

It must be remembered, however, that it is not the Allies alone who send a percentage of neutral vessels into port for examination, for it is common knowledge that German naval vessels, as stated in paragraph 19 of the American note, “seize and bring into German ports neutral vessels bound for Scandinavian and Danish ports.”

As cases in point, the interception by the Germans of the American oil-tankers Llama and Platuria in August last may be mentioned. Both were bound to America from Sweden and were taken into Swinemünde for examination.

8. The French Ministry of Marine shares the views expressed by Sir J. Jellicoe on the question of search at sea, and has added the following statement:1

Naval practice, as it formerly existed, consisting in searching ships on the high seas, a method handed down to us by the old Navy, is no longer adaptable to the conditions of navigation at the present day. Americans have anticipated its insufficiency and have foreseen the necessity of substituting some more effective method. In the instructions issued by the American Navy Department; under date of June 20, 1898, to the cruisers of the United States, the following order is found (clause 13):

“If the latter (the ship’s papers) show contraband of war, the ship should be seized; if not, she should be set free unless by reason of strong grounds for suspicion a further search should seem to be requisite.” 2

Every method must be modified having regard to the modifications of material which men have at their disposal, on condition that the method remains humane and civilised.

The French Admiralty considers that to-day a ship, in order to be searched, should be brought to a port whenever the state of the sea, the [Page 371] nature, weight, volume, and stowage of the suspect cargo, as well as the obscurity and lack of precision of the ship’s papers, render search at sea practically impossible or dangerous for the ship searched.

On the other hand, when the contrary circumstances exist, the search should be made at sea.

Bringing the ship into port is also necessary and justified when, the neutral vessel having entered the zone or vicinity of hostilities, (1) it is a question, in the interests of the neutral ship herself, of avoiding for the latter a series of stoppages and successive visits and of establishing once for all her innocent character and of permitting her thus to continue her voyage freely and without being molested; and (2) the belligerent, within his rights of legitimate defence, is entitled to exercise special vigilance over unknown ships which circulate in these waters.

9. The question of the locality of the search is, however, one of secondary importance. In view of His Majesty’s Government the right of a belligerent to intercept contraband on its way to his enemy is fundamental and incontestable, and ought not to be restricted to intercepting contraband which happens to be accompanied on board the ship by proof sufficient to condemn it. What is essential is to determine whether or not the goods were on their way to the enemy. If they were, a belligerent is entitled to detain them, and having regard to the nature of the struggle in which the Allies are engaged they are compelled to take the most effectual steps to exercise that right.

10. The United States note then passes to the subject of the procedure in the prize courts, and maintains that courts of prize have hitherto been bound, by well-established and long-settled practice, to consider at the first hearing only the ship’s papers and documents and the answers to the standing interrogatories, and to exclude all other evidence unless and until an order has been made for “further proof.” Attention is drawn to the fact that the above practice, which had been followed by the British prize courts for over a century, and also by the prize courts of the United States, was changed by the prize court rules issued by His Majesty’s Government at the outbreak of the present war. Upon this matter His Majesty’s Government have to point out that they recognised some years ago that modern conditions had rendered the old rules obsolete, and new rules had been prepared under the guidance and supervision of the late Lord Gorell, whose experience as president of the Admiralty Division of the High Court of Justice rendered him well qualified to deal with the subject. Twenty months’ experience of the working of the new rules in the prize court has served to show the utility of the changes.

11. It may further be pointed out that the practice and procedure adopted in prize courts are not settled or regulated by international law, but they are determined by each nation for itself. The procedure described in the United States note was gradually evolved in the British courts, and, though it was adopted by the United States, it has never been followed in the prize courts of France or of any other continental nation, nor does the fact that the United States followed the British practice prevent Great Britain or any other of the Allied nations from introducing such changes in the procedure as modern circumstances may call for. International law only requires that the practice in prize courts of the belligerent nation should afford a fair hearing to all claims put forward by neutrals, and should enable the court to arrive at a just conclusion upon the evidence. Subject to that condition, each nation may regulate the practice to be followed in its prize courts. As an instance, the recent Italian decree of 30th May 1915 may be quoted in Article 6 of which it is enacted that the prize court “will draw up rules of procedure for its future guidance.” The division of prize court proceedings into two distinct phases, the first hearing and the hearing on further proof, under the early British and the American practice, was merely a rule of procedure. Similarly the exclusion of extraneous evidence until the making of an order for further proof was only a rule of procedure. His Majesty’s Government were, therefore, not only at liberty but felt bound to alter these rules so soon as they were advised that the rules were obsolete and might work injustice.

12. The old practice and procedure had become archaic in form and belonged to days long before the modern improvements in legal procedure were developed, days when, for instance, the parties interested were prevented from giving any evidence as witnesses in actions which affected their rights. The alterations in the prize court practice and rules were conceived and made in the spirit [Page 372] of those improvements. The objects with which the old practice was abolished were to prevent delay, to eliminate technicalities, and to enable the parties to prove all the true and material facts, and to place their respective cases fully before the court.

13. Moreover, it must be remembered that the conditions under which goods are conveyed by sea from one country to another have completely changed. In the days when the old rules were developed the ship’s papers were a safe and satisfactory guide as to the nature and destination of the cargo. If the ship’s papers had not indicated the true object and purpose of the consignment, the consignee would have been uncertain what to do with the goods when they arrived, and the commercial transaction would have been hampered, for there were in those days no fast mails or telegraph cables by which supplementary information could be conveyed. If there were no ship’s papers, or if they obviously were not genuine, it was a ground for condemnation. When there was no reason to doubt them, the court could safely take the papers as indicating the real transaction. Nowadays the conditions have changed; the papers may outwardly be perfectly genuine and complete, yet they may have been prepared with the express purpose of concealing the real nature of the transaction. These misleading papers would not, however, occasion any difficulty in dealing with the goods on their arrival, because the necessary instructions to the consignee can be conveyed by other means. Consequently the old rule that the papers on board the ship must alone be taken into consideration, and evidence from other sources excluded, is no longer practicable; indeed, the system of attributing to the ship’s papers the character of final and conclusive proof upheld in the United States note would encourage shippers of contraband to falsify the papers, as they would thereby ensure absolute immunity from capture. It is in the same way due to change of circumstances that the evidence of the master and members of the crew has ceased to be of much importance in the majority of prize cases; they usually now know nothing of the real destination of the cargo they are transporting, and the more skilfully the despatch of goods with an enemy destination is contrived, the more effectually will it be concealed from those on board.

14. It may be doubted whether any belligerent government would be ready to forego the right of capture of goods on their way to an enemy in every case where such destination was not disclosed by the ship’s papers or the evidence of those on board the ship. The difficulty which United States naval officers found even as early as 1862 in complying with the old rule is illustrated by the quotation from Lord Lyons’ note of the 22d April 1863, in connection with the case of the Magicienne, one of the cases which is dealt with in the appendix to this note, in which he drew attention to the habit of the United States cruisers of seizing vessels on the chance that something might possibly be discovered ex post facto which would prevent the captors from being condemned to pay damages.

15. The contention advanced by the United States Government in paragraph 9 of their note, that 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 in Europe, is not borne out by the official statistics published in the United States—nor by the reports of the Department of Commerce. The first nine months of 1915 may be taken as a period when the war conditions must have been known to all those engaged in commerce in the United States of America; and when any injurious effects of the prize court procedure would have been recognised. During that period the exports from the United States of America to the three Scandinavian countries and Holland, the group of neutral countries whose imports have been most affected by the naval operations of the Allies and by the procedure adopted in their prize courts, amounted to $274,037,000 as compared with $126,763,000 in the corresponding period of 1913. It is useless to take into account the corresponding figures of 1914 because of the dislocation of trade caused by the outbreak of war, but taking the pre-war months of 1914, the figures for 1913, 1914, and 1915, were as follows:

1913 $97,480,000
1914 88,132,000
1915 234,960,000

16. In the face of such figures it seems impossible to accept the contention that the new prize court procedure in Great Britain has practically destroyed much of the export trade of the United States to neutral countries in Europe, [Page 373] and the inference is suggested that if complaints have been made to the administration of Washington by would-be exporters, they emanated not from persons who desired to engage in genuine commerce with the neutral countries, but from those who desired to despatch goods to the enemy under cover of a neutral destination, and who found it more difficult to conceal the real facts from the prize courts under the new procedure.

17. At this point it would have been opportune to introduce a reply to the contention that appears at first sight to be advanced in paragraph 13 of the United States note that Great Britain, while interfering with foreign trade, has increased her own with neutral countries adjacent to Germany, but this is rendered unnecessary by the explanation given by Mr. Page at the time that he presented the note, and since confirmed by a statement given out to the press at Washington that no such meaning is to be attributed to the paragraph. Moreover, the subject has been dealt with in the note which Sir E. Grey sent to Mr. Page on the 13th August last,1 and again in the note given to the State Department by the British Ambassador at Washington on the 27th December.2

18. The next passage in the United States note (paragraph 14) relates to the principle of non-interference with goods intended to become incorporated in the mass of merchandise for sale in a neutral country, or, as it is more commonly known, with goods intended to be incorporated in the “common stock” of the country. The United States Government urge with some force that trade statistics are not by themselves conclusive in establishing an enemy destination, and that such statistics require careful scrutiny. On the other hand, the mere fact that goods, no matter of what description or in what quantities, are ostensibly destined to form part of the common stock of a neutral country, can not be regarded as sufficient evidence to prove their innocence or to justify the assertion that any attempt to raise questions as to their ulterior destination is unwarranted and inquisitorial. It is a matter of common knowledge that large quantities of supplies have since the war broke out passed to our enemy through neutral ports. It was pointed out in Sir E. Grey’s note of the 17th July 1915 that it would be mere affectation to regard some of those ports as offering facilities only for the commerce of the neutral country in which they are situated. They have, in fact, been the main avenues through which supplies have reached the enemy from all parts of the world. In the case of goods consigned to these ports, the ships’ papers convey no suggestion as to their ultimate destination, and every device which ingenuity can suggest, or which can be contrived by able and unscrupulous agents, is resorted to for the purpose of giving to carefully organised arrangements for supplying the enemy the appearance of genuine transactions with a neutral country. His Majesty’s Government can not bring themselves to believe that it is the desire of the United States Government that traffic of this kind should be allowed to proceed without hindrance.

19. The question whether goods despatched to a neutral port were intended to become part of the mass of merchandise for sale in that country is one of fact. Quite apart from the conclusions suggested by the figures, there is a considerable body of evidence that many of the goods which have been shipped to neutral ports during the war were never intended to become part of the common stock of that country, but were earmarked from the beginning for reexport to the enemy countries. If they had been intended to form part of the common stock they would have been available for use in that country; yet at one time in the early days of the Allies’ efforts to intercept all the commerce of the enemy, when they found it necessary to hold up certain cargoes of cotton on their way to Sweden, it transpired that though the quays and the warehouses of Gothenburg [Göteborg] were congested with cotton, there was none available for the use of the spinners in Sweden.

20. Confirmation of the fact that many of the shipments to neutral ports were never intended to become part of the common stock of the country is also to be found in some of the contracts which have come to light since the policy of intercepting all commodities on their way to or from the enemy country was introduced. One of those which has been disclosed is a contract with a firm in Germany for the sale of no less than 50,000 bales of cotton [Page 374] linters at a price which was about double that which linters were fetching in any other country than Germany. The whole quantity was to be shipped to neutral ports. Various shipments made under this contract have been held up, and in all cases the goods were shipped with papers and under conditions which concealed the enemy destination altogether. Sweden is not in normal times a large importer of cotton linters, and it certainly would not be reasonable to maintain that, because the ship’s papers did not disclose this contract of sale or the enemy destination, shipments of linters under this contract should be regarded as intended to become part of the mass of merchandise for sale in Sweden.

21. However sound the principle that goods intended for incorporation in the common stock of a neutral country should not be treated as contraband may be in theory, it is one that can have but little application to the present imports of the Scandinavian countries. The circumstances of a large number of these shipments negative any conclusion that they are bona fide shipments for the importing countries. Many of them are made to persons who are apparently nominees of enemy agents, and who never figured before as importers of such articles. Consignments of meat products are addressed to lightermen and dock labourers. Several thousands of tons of such goods have been found documented for a neutral port and addressed to firms which do not exist there. Large consignments of similar goods were addressed to a baker, to the keeper of a small private hotel, or to a maker of musical instruments. Will it be contended that such imports ought to be regarded as bona fide shipments intended to become part of the common stock of the country?

22. Similarly several of the shipments which the Allied naval forces are now obliged to intercept consist of goods for which there is in normal circumstances no sale in the importing country, and it has already been pointed out in a recent decision in the British prize court that the rule about incorporation in the common stock of a neutral country can not apply to such goods. The same line was taken in some of the decisions in the United States prize courts during the Civil War.

23. In the presence of facts such as those indicated above, the United States Government will, it is believed, agree with His Majesty’s Government that no belligerent could in modern times submit to be bound by a rule that no goods could be seized unless they were accompanied by papers which established their destination to an enemy country, and that all detentions of ships and goods must uniformly be based on proofs obtained at the time of seizure. To press any such theory is tantamount to asking that all trade between neutral ports shall be free, and would thus render nugatory the exercise of sea power and destroy the pressure which the command of the sea enables the Allies to impose upon their enemy.

24. It is, of course, inevitable that the exercise of belligerent rights at sea, however reasonably exercised, must inconvenience neutral trade, and great pressure is being put upon the United States Government to urge the technical theory that there should be no interference at all with goods passing between neutral ports, and thus to frustrate the measures which the Allies have taken to intercept commerce on its way to or from the enemy. It may not be out of place to recall that the position is somewhat similar to that which arose in the United States in the war between the North and the South. All students of international law and of military history are aware that the blockade of the Southern States was the most important engine of pressure possessed by the North, and that it was on the point of being rendered ineffective through the use of blockade runners of neutral ports of access. It is well known that the United States Government took immediate steps to stop such trade, and that the United States Supreme Court extended the doctrine of continuous voyage so as to cover all cases where there was an intention to break the blockade by whatever means, direct or indirect.

25. The configuration of the European coast is such as to render neutral ports the most convenient for the passage of German commerce, and just as it was essential to the United States in the Civil War to prevent their blockade from being nullified by the use of neutral ports of access, so it is essential to the Allied powers to-day to see that the measures which they are taking to intercept enemy commerce shall not be rendered illusory by the use of similar ports. The instructions issued by Mr. Seward during the Civil War show that he regarded the continuance of the blockade; against the Southern States as absolutely vital, and he repeatedly instructed American representatives abroad to [Page 375] assure foreign governments that, while he was fully alive to the great inconveniences caused by the cutting off of the supplies of cotton from Europe, yet he could not, as American Secretary of State, “sacrifice the Union for cotton.” The American representatives in Europe in their published reports again and again expressed the opinion that, whatever might be the policy of the Government, the peoples of Europe would never consent to side with the power that upheld slavery against the power which represented freedom. Their opinion was entirely justified by the result, and in fact neither the French nor the English Governments took any decided steps towards breaking the blockade, in spite of the tremendous pressure which was brought to bear upon them, and the terrible suffering of the cotton operatives of this country. Indeed, President Lincoln himself acknowledged, in a message to the labouring classes of Manchester, his high sense of the spirit of self-sacrifice which they had exhibited in their policy towards America. His Majesty’s Government have of course no desire to enter upon any examination of the issues involved in that historic conflict, but no one will question the respect which is due to the determination then shown by the French and British peoples not to range themselves on what they believed to be the side of slavery or consent to action which they held might be fatal to the democratic principle of Government, however great the pressure exerted by commercial interests might be.

26. His Majesty’s Government desire to assure the United States Government that every effort is being made to distinguish between bona fide neutral commerce and that which is really intended for the enemy. The task is one of exceptional difficulty, and the statistics show that a great volume of imports intended for the enemy must have passed through adjacent neutral countries during the war. As an instance, the imports of lard into Sweden during the year 1915 may be taken. In that year the total import of lard into Sweden from all sources was 9,318 tons, of which no less than 9,029 tons came from the United States. In the three years before the war, 1911–13, the annual average import of the same article was only 888, of which 638 tons came from the United States. It is difficult to believe that the requirements of Sweden in respect of lard, even when every allowance is made for possible diversions of trade due to the war, could suddenly have increased more than tenfold in 1915. The inference, indeed, is irresistible that the greater part of these imports must have had another and an enemy destination.

27. It may readily be conceded that the efforts to intercept enemy commerce passing through neutral countries can not fail to produce some soreness and dissatisfaction. His Majesty’s Government have therefore spared no pains in their endeavour to mitigate the inconvenience which must inevitably be occasioned to neutral traders. In pursuance of this object they are resorting to the policy of ascertaining the total requirements of the country concerned, and intercepting such imports as may be presumed, because they are in excess of those requirements, to form no part of the normal trade of the country, and therefore to be destined for the enemy.

28. The total net imports of a particular commodity by any country in normal times give a satisfactory index to its requirements, and where these are provided for on a generous scale, suitable allowance being made for the commercial dislocation inseparable from a state of war, it is not unfair, after 18 months of war and in the light of the experience which has now been gained, to invite the prize court to regard with suspicion further consignments of any kind of goods of which the imports have already exceeded a figure ample to satisfy the country’s requirements.

29. It ought not to be difficult to arrive at a satisfactory understanding with all parties on the subject, as the official statistics afford information not only as to the quantities of particular commodities required by neutral countries, but also of the sources from which they are usually obtained. Arrangements of this nature will be of great service in removing the friction and misunderstanding which now arise, as it will help the commercial classes in the neutral countries to form an idea of the limits within which their trading operations are not likely to encounter difficulty.

30. The adoption of such a system, although not unattended by difficulty, has been greatly facilitated by agreements made with the organisations which control imports in the neutral countries, as well as by arrangements with some of the shipping lines, and with several of the interests concerned in the import of particular commodities from neutral countries. His Majesty’s Government intend to avail themselves of every opportunity which may present itself in order to bring about a more extended adoption of this equitable system.

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31. Moreover, the fact that a neutral country adjacent to the enemy territory is importing an abnormal quantity of supplies or commodities, of which her usual imports are relatively small, of which the enemy stands in need, and which are known to pass from that neutral country to the enemy, is by itself an element of proof on which the prize court would be justified in acting, unless it is rebutted by evidence to the contrary. Hostile destination being a question of fact, the court should take all the relevant circumstances into consideration in arriving at its decision, and there seems to be no reason in principle for limiting the facts at which the court is entitled to look in a case of this kind.

32. The second section of the United States note (paragraphs 16–24) deals with the validity of the measures against enemy commerce which were embodied in the British order in council of the 11th March, 1915, and in the French decree of the 13th March, and maintains that these measures are invalid because they do not comply with the rules which have been gradually evolved in the past for regulating a blockade of enemy ports, and which were summarised in concrete form in Articles 1–21 of the Declaration of London.

33. These rules can only be applied to their full extent to a blockade in the sense of the term as used in the Declaration of London. His Majesty’s Government have already pointed out that a blockade which was limited to the direct traffic with enemy ports would in this case have but little, if any, effect on enemy commerce, Germany being so placed geographically that her imports and exports can pass through neutral ports of access as easily as through her own. However, with the spirit of the rules His Majesty’s Government and their allies have loyally complied in the measures they have taken to intercept German imports and exports. Due notice has been given by the Allies of the measures they have taken, and goods which were shipped or contracted for before the announcement of the intention of the Allies to detain all Commerce on its way to or from this enemy countries have been treated with great liberality. The objects with which the usual declaration and notification of blockade are issued have therefore been fully achieved. Again, the effectiveness of the work of the Allied fleets under the orders referred to is shown by the small number of vessels which escape the Allied patrols. It is doubtful whether there has ever been a blockade where the ships which slipped through bore so small a proportion to those which were intercepted.

34. The measures taken by the Allies are aimed at preventing commodities of any kind from reaching or leaving Germany, and not merely at preventing ships from reaching or leaving German ports. His Majesty’s Government do not feel, therefore, that the rules set out in the United States note need be discussed in detail. The basis and the justification of the measures which the Allies have taken were dealt with at length in Sir E. Grey’s note of the 23d July,1 and there is no need to repeat what was there said. It need only be added that the rules applicable to a blockade of enemy ports are strictly followed by the Allies in cases where they apply—as, for instance, in the blockades which have been declared of the Turkish coast of Asia Minor or of the coast line of German East Africa.

1Foreign Relations, 1915, Supplement, p. 168.

35. Some further comment is perhaps necessary upon the statements made in paragraph 19 of the United States note, where it is said that, because German coasts are open to trade with Scandinavian countries, the measures of the Allies fail to comply with the rule that a blockade must be effective. It is no doubt true that commerce from Sweden and Norway reaches German ports in the Baltic in the same way that commerce still passes to and from Germany across the land frontiers of adjacent states, but this fact does not render the measures which France and Great Britain are taking against German trade the less justifiable. Even if these measures were judged with strict reference to the rules applicable to blockades, a standard by which, in their view, the measures of the Allies ought not to be judged, it must be remembered that the passage of commerce to a blockaded area across a land frontier or across an inland sea has never been held to interfere with the effectiveness of the blockade. If the right to intercept commerce on its way to or from a belligerent country, even though it may enter that country through a neutral port, be granted, it is difficult to see why the interposition of a few miles of sea as well should make any difference. If the doctrine of continuous voyage may rightly be applied to goods going to Germany through Rotterdam, on what ground can it be contended that it is not equally applicable to goods with a similar destination [Page 377] passing through some Swedish port and across the Baltic or even through neutral waters only? In any case, it must be remembered that the number of ships reaching a blockaded area is not the only test as to whether it is maintained effectively. The best proof of the thoroughness of a blockade is to be found in its results. This is the test which Mr. Seward in 1863, when Secretary of State, maintained should be applied to the blockade of the Confederate States. Writing to Mr. Dayton, the United States Minister in Paris, on the 8th March, he said: “But the true test of the efficiency of the blockade will be found in its results. Cotton commands a price in Manchester and in Rouen and Lowell four times greater than in New Orleans. . . . Judged by this test of results, I am satisfied that there never was a more effective blockade.” Similar language was used in the despatch to Mr. Adams in London. The great rise in price in Germany of many articles, most necessary to the enemy in the prosecution of the present war, must be well known to the United States Government.

36. Attention is drawn in the same paragraph to the fact that cotton has since the measures announced on the 11th March been declared to be contraband, and this is quoted as an admission that the blockade is ineffective to prevent shipments of cotton from reaching the enemy countries. The reason for which cotton was declared to be contraband is quite simple. Goods with an enemy destination are not, under the order in council, subject to condemnation; they are restored to the owner. Evidence accumulated that it was only for military purposes that cotton was being employed in Germany. All cotton was laid under embargo, and its use in the textile factories was prohibited except in very special cases or by military permission. In these circumstances it was right and proper that cotton with an enemy destination should be subjected to “condemnation and not merely prevented from passing, and it was for this reason that it was declared to be contraband. The amount of cotton reaching the enemy country has probably not been affected in the least by its being made contraband on the 20th August, as supplies from overseas had been cut off effectually before that date. Even the Konfektionär, a German technical paper, dealing with the textile industry, admitted in its issue of the 1st July that not a gramme of cotton had found its way into Germany for the preceding four weeks.

37. Before leaving the question of the validity of the measures which France and Great Britain have taken against enemy commerce, reference must be made to the statement made in the 33d paragraph of the United States note that “the curtailment of neutral rights by these measures, which are admittedly retaliatory, and therefore illegal, cannot be admitted.” His Majesty’s Government are quite unable to admit the principle that to the extent that these measures are retaliatory they are illegal. It is true that these measures were occasioned and necessitated by the illegal and unjustifiable proclamation issued by the German Government on the 4th February 1915, constituting the waters surrounding Great Britain, including the whole English Channel, a “war zone,” into which neutral vessels would penetrate at their peril, and in which they were liable to be sunk at sight. This proclamation was accompanied by a memorandum alleging that the violation of international law by Great Britain justified the retaliatory measures of the German Government owing to the acquiescence of neutrals in the action of this country. The legitimacy of the use of retaliatory measures was thus admitted by the Germans, although His Majesty’s Government and their allies strongly deny the facts upon which their arguments were based. But although these measures may have been provoked by the illegal conduct of the enemy, they do not, in reality, conflict with any general principle of international law, of humanity, or civilisation; they are enforced with consideration against neutral countries, and are, therefore, juridically sound and valid.

38. The more abstract question of the legitimacy of measures of retaliation adopted by one belligerent against his opponent, but affecting neutrals also, is one of which His Majesty’s Government think the discussion might well be deferred. It is a subject of considerable difficulty and complexity, but His Majesty’s Government are surprised to notice that the Government of the States seem to regard all such measures of retaliation in war as illegal if they should incidentally inflict injury upon neutrals. The advantage which any such principle would give to the determined law-breaker would be so great that His Majesty’s Government can not conceive that it would commend itself to the conscience of mankind. To take a simple instance, suppose that one belligerent scatters mines on the trade routes so as to impede or destroy the commerce of his enemy—an action which is illegitimate and calculated to inflict injury [Page 378] upon neutrals as well as upon the other belligerents—what is that belligerent to do? Is he precluded from meeting in any way this lawless attack upon him by his enemy? His Majesty’s Government can not think that he is not entitled by way of retaliation to scatter mines in his turn, even though in so doing he also interferes with neutral rights. Or take an even more extreme case. Suppose that a neutral failed to prevent his territory being made use of by one of the belligerents for warlike purposes, could he object to the other belligerent acting in the same way? It would seem that the true view must be that each belligerent is entitled to insist on being allowed to meet his enemy on terms of equal liberty of action. If one of them is allowed to make an attack upon the other regardless of neutral rights, his opponent must be allowed similar latitude in prosecuting the struggle, nor should he in that case be limited to the adoption of measures precisely identical with those of his opponent.

39. The third section of the United States note deals with the question of the means of redress which are open to United States citizens for any injury or loss which they suffer as the consequence of an unjustifiable exercise of the belligerent rights of the Allies. The contention put forward in these paragraphs appears to be that there is no obligation on neutral individuals who maintain that they have been damnified by the naval operations of the belligerents to appeal to the prize courts for redress, because the prize courts are fettered by municipal enactments which are binding upon them, whereas the very question which those individuals wish to raise is the validity of such enactments when tested by the canons of international law.

40. These arguments seem to be founded on a misunderstanding of the situation, and to overlook all that was said in Sir E. Grey’s note of the 23d July on this subject. The extract there quoted from the decisions given by Lord Stowell shows that in Great Britain the prize court has jurisdiction to pronounce a decision on the very point which the United States note indicates, viz., whether an order or instruction to the naval forces issued by His Majesty’s Government is inconsistent with those principles of international law which the court is bound to apply in deciding cases between captors and claimants, and is entitled, if satisfied that the order is not consistent with those principles, to decline to enforce it. The jurisdiction of the prize court in Great Britain therefore affords every facility to a United States citizen whose goods are detained and dealt with under the order in council of the 11th March to take his case to the prize court and there claim that the order under which the naval authorities have acted is invalid, and that its enforcement entitles him to redress and compensation.

41. In some matters, it is true that the prize court is bound by the municipal enactments of its own country. It is the territorial sovereign who sets up the court, and who therefore determines the matters which are incidental to its establishment. His Majesty’s Government have already pointed out that each country determines for itself the procedure which its prize courts shall adopt; but certainly under the British system—and His Majesty’s Government were under the impression that, in this matter, the United States had taken the same course—the substantive law which the court applies as between captor and claimant consists of the rules and principles of international law, and not the municipal legislation of the country. If reference is made to the case of the Recovery (6 C. Rob. 341), it will be seen that Lord Stowell refused to enforce in the prize court against a neutral the British navigation laws.

42. Sir E. Grey’s note of the 23d July was intended to make this point clear, and so far from having intended to “give the impression that His Majesty’s Government do not rely upon its soundness or strength,” His Majesty’s Government wish to lay stress on the fact that the principal that no encroachment should be made upon the jurisdiction and the competence of the prize court is one which they regard as vital.

43. Apart from the cases where a question may arise as to the validity of orders or instructions on which naval action was based, circumstances frequently give rise to claims for compensation on behalf of individuals who consider they have suffered unjustly from the exercise of rights jure belli, as, for instance, from the delay in releasing their ships or so forth. His Majesty’s Government desire therefore, to repeat what was said in Sir E. Grey’s note of the 10th February, that the British prize court rules give the court ample jurisdiction to deal with any claims for compensation by a neutral arising from the interference with a ship or goods by the naval forces.

[Page 379]

44. His Majesty’s Government attach the utmost importance to the maintenance of the rule that, when an effective mode of redress is open to individuals in the courts of a civilised country by which they can obtain adequate satisfaction for any invasion of their rights, recourse must be had to the mode of redress so provided before there is any scope for diplomatic action. This is the course which His Majesty’s Government have always themselves endeavoured to follow in previous wars in which Great Britain has been neutral, and they have done so because it is the only principle which is correct in theory and which operates with justice and impartiality between the more powerful and the weaker nations. To that principle His Majesty’s Government propose to adhere now that they are themselves the belligerent, and that it is against them that the claims are advanced.

45. Enquiry has been made into the four cases of the Magicienne , the Don José , the Labuan , and the Saxon , mentioned in the United States note (paragraph 27) as instances during the American Civil War where His Majesty’s Government put forward, through the diplomatic channel, claims for damages for seizure and detention of British ships alleged to have been made without legal justification. In two of these instances it is said that at the time the demands were made the cases were before the American prize courts for adjudication. The results of the enquiry are contained in an appendix to this note. The cases have there been dealt with in some detail because they are cited as indicating that it was the practice of Her Majesty’s Government during the American Civil War to claim through the diplomatic channel damages for seizures of British ships alleged to have been made without legal justification. The cases do, in fact, establish the very proposition for which His Majesty’s Government are now contending, viz., that in cases where the prize court has power to grant relief there is no ground for putting forward claims through the diplomatic channel. In two of the cases the United States Government themselves discontinued the prize court proceedings and admitted the right to compensation, and in the others they maintained the jurisdiction of the prize court, and Her Majesty’s Government acquiesced.

46. The statements contained in paragraph 31 of the United States note have led to a careful review of the practice which is now followed in the British courts with regard to vessels and cargoes which are released. It has been ascertained that in the case of vessels brought in for examination and allowed to proceed without discharging any part of their cargo no dues are charged. Where part of the cargo is discharged and passes into the jurisdiction of the prize court, the terms of the release are, of course, subject to the control of the court, and His Majesty’s Government are therefore hardly in a position to give any definite undertaking with regard to the incidence of the expenses and charges which may have been incurred. In general, however, they realise that, in cases where goods are released and it transpires that there were no sufficient grounds for their seizure, no dues or charges should fall upon the owner. The statement that waivers of the right to put forward claims for compensation are exacted as a condition of release is scarcely accurate, but they are prepared to concede that such waivers would be a hardship to the owners of the goods released. In these circumstances His Majesty’s Government will abstain from exacting any such undertakings in future, and will not enforce those which have already been given.

47. Attached to the United States note are voluminous appendices containing lists of various vessels of all nationalities whose cargoes have been examined by the naval forces of the Allies. These lists are a strong testimony to the vigour and effectiveness with which the naval forces are carrying out the measures which the Allies have deemed it necessary to take against the commerce of their enemies. Perhaps the most striking conclusion which can be drawn from these lists is the rapidity with which the vessels are released and the very small amount of loss and inconvenience to which they are, as a rule, exposed.

48. Into the facts of each particular case His Majesty’s Government feel sure the Government of the United States will agree that there is no need for them to enter; for the lists comprise only ships dealt with by the British authorities; no corresponding lists are given of those dealt with by the French forces, and a detailed examination of these cases would be of no assistance in explaining the general principles which are being followed and which are common to both the Allies. Furthermore, any discussion of the cases in this note might [Page 380] prejudice the chances of the claimants of recovering compensation through the prize court in cases where they consider that they are entitled to redress.

49. Finally His Majesty’s Government desire to assure the United States Government that they will continue their efforts to make the exercise of what they conceive to be their belligerent rights as little burdensome to neutrals as possible. Some suggestions have already been referred to in this note which, it is believed, would have that effect, and they are quite ready to consider others. For instance, they have already appointed an impartial and influential commission to examine whether any further steps could be taken to minimize the delays involved in the present methods of dealing with neutral vessels. Again, it has been suggested that it would be a great commercial convenience if neutral shippers knew, before they made arrangements for ship-space and for financing their consignments, whether they would be held up by belligerent patrols. A scheme is already in operation which ought to succeed in accomplishing this object. Other suggestions of a like nature might perhaps be made, and the Allied Governments would be prepared to give favourable consideration to any proposal for the alleviation of the position of neutrals, provided that the substantial effectiveness of the measures now in force against enemy commerce would not be thereby impaired.

50. His Majesty’s Government are of opinion that it is to such mitigations that the Allies and the neutrals concerned should look for the removal of the difficulties now encountered rather than to abrupt changes either in the theory or application of a policy based upon admitted principles of international law carefully adjusted to the altered conditions of modern warfare. Some of the changes which have been advocated would, indeed, if adopted in their entirety render it impossible for the Allies to persist with effect in their endeavours to deprive the enemy of the resources upon which he depends for the prosecution of operations carried on both by land and sea with complete disregard of the claims of humanity; for instance, the practice of visiting exclusively at sea, instead of in port, vessels reasonably suspected of carrying supplies to the enemy, or, again, the adoption of the principle that goods notoriously destined for the enemy may not be intercepted if they happen to be carried by a neutral vessel and addressed to a neutral consignee could not fail to have this result.

51. His Majesty’s Government have noted with sincere satisfaction the intimation contained in the concluding passages of the United States note of the intention of the United States to undertake the task of championing the integrity of neutral rights. The first act of this war was the unprovoked invasion by the enemy of neutral territory—that of Belgium—which he was solemnly pledged by treaty to protect. The occupation of this territory was accompanied by abominable acts of cruelty and oppression in violation of all the accepted rules of war, atrocities the record of which is available in published documents; the disregard of neutral rights has since been extended to naval warfare by the wanton destruction of neutral merchant ships on the high seas, regardless of the lives of those on board. In every theatre and in each phase of the war has been visible the same shocking disregard by the enemy of the rights of innocent persons and neutral peoples. His Majesty’s Government would welcome any combination of neutral nations, under the lead of the United States which would exert an effective influence to prevent the violation of neutral rights, and they cannot believe that they or their allies have much to fear from any combination for the protection of those rights which takes an impartial and comprehensive view of the conduct of this war and judges it by a reasonable interpretation of the generally accepted provisions of international law and by the rules of humanity that have hitherto been approved by the civilised world.

APPENDIX

Cases of the “Magicienne,” the “Don José,” the “Labtjan,” and the “Saxon

1. The Magicienne was captured on the 27th January 1863, about 400 miles from the Cape Verde Islands, while on a voyage to Matamoros. She was taken to Key West and released on the 2d March, the district attorney of the United States stating that he could see nothing in the depositions, invoices, and other papers on which to base a demand for condemnation or even for a certificate of probable cause of seizure. On the 3d April Lord Lyons was instructed to ask for compensation, and did so in a note to Mr. Seward, dated the 22d April. [Page 381] in reply, Mr. Seward admitted that compensation ought to be made. The course of procedure suggested by Mr. Seward was adopted, and ultimately the compensation was fixed at $8,645. No suggestion was made that any other mode of redress was open to the injured party or that it was not a case where compensation should be asked for through the diplomatic channel. On the contrary, the admission that the seizure was illegal was made by the United States, and Mr. Seward himself admitted that compensation should be made.

2. The Don José was a small British schooner of 35 tons, which was captured on the 2d July 1863, off Cuba, when on a voyage to Habana. She was released on the 15th July because the district attorney was unable, on examination of the ship’s papers and of the depositions of the witnesses, to find any grounds on which to file a libel against the vessel. On the 2d January 1864, Lord Lyons wrote a note to Mr. Seward, pointing out that the seizure appeared to have been one of a very unjustifiable character, and saying that he hoped that the United States Government would have no difficulty in admitting that compensation was due. Mr. Seward, in his reply, admitted that the case seemed to be a strong one. On the 18th May Lord Lyons again pressed for compensation and based his claim upon the ground that the United States law officer could find no ground for bringing the case before the prize court, and that it must be presumed that the court, if the case had come before it, would, in the execution of its duty, have awarded costs and damages. Mr. Seward promised to give the matter attentive consideration. He does not appear to have suggested that the claimant could himself have applied to the prize court for compensation, or to have challenged the point urged by Lord Lyons that it was the failure of the United States authorities to bring the case before the prize court which deprived the court of the opportunity of awarding redress.

3. The case of the Labuan gave rise to a voluminous diplomatic correspondence. She was a British steamer which was seized by the United States steamer Portsmouth on the 1st February 1862, when lying off the mouth of the Rio Grande within the limits of the port of Matamoros and probably therefore within the territorial waters of Mexico. She had landed a cargo of British goods and was loading a cargo of cotton and other articles. Copies of the reports which Lord Lyons had received as to this case were given to Mr. Seward privately with a suggestion that the United States Government might perhaps think it advisable to release the vessel and give her compensation without subjecting the vessel to judicial proceedings. In another unofficial communication Mr. Seward admitted that the perusal of the information in the Navy Department had not satisfied him that the capture was legal, but preferred that nothing should be clone until a judicial decision had been given. The official correspondence that ensued dealt mainly in its earlier stages with the contention urged by Her Majesty’s Government that unless the United States Government were going to maintain that the capture was justifiable and valid, it was unreasonable to expose the parties interested to the delay and the expense of judicial proceedings. The United States Government, however, insisted that the case must take its course in the prize court, and in the circumstances Her Majesty’s Government could only acquiesce. The trial took place on the 20th May in the District Court at New York, when the immediate release of vessel and cargo was ordered, and the question of damages against the captors reserved for consideration. The subsequent official correspondence was occupied chiefly with the delays in getting the damages assessed. As early as the 9th April 1863 Mr. Seward wrote to Lord Lyons a note reviewing the whole correspondence, in which he said, “I freely admit that I believe the claimants entitled to damages and cost,” but he maintained that it was regular and legal to wait for the court to decree them, and that the court would decide the question with more exact justice than could the Executive Government. The period which elapsed before the prize court dealt with the damages payable certainly justified the complaints which Lord Lyons was instructed to make, for the decree awarding $141,902 was not issued until March 1868, more than six years after the capture, nor was the sum paid until a further period of over two years had elapsed.

4. The case of the Saxon also gave rise to a voluminous diplomatic correspondence, but I am at a loss to know what ground there can be for citing the action of Her Majesty’s Government in this case as a precedent for maintaining the right of a government to ignore the prize court and to claim compensation through the diplomatic channel. The Saxon was seized on the 29th October 1863, by the United States ship Vanderbilt while lying at anchor off Penguin Island, on the coast of South Africa. Some confusion occurred at the time of capture, and the mate of the Saxon was shot dead by an officer of the Vanderbilt. [Page 382] The vessel was sent to New York, and arrived there on the 22d December. Some doubt seems to have arisen as to why the vessel had been captured, and Lord Lyons was instructed by Lord Russell early in 1864 to ask the United States Government either to direct the immediate release of the Saxon , with proper compensation to the owners, or at least to explain the ground on which her seizure and detention were supposed to be justified. Meanwhile further information had come into the possession of Her Majesty’s Government, and on the 15th February Lord Lyons was instructed, on the advice of the law officers of the Crown, that Her Majesty’s Government saw no ground for seeking to withdraw the case from the jurisdiction of the prize court. On the 7th March Judge Betts, in the District Court at New York, decreed the restitution of the vessel and cargo free of all costs, charges, and expenses, reserving for future consideration the question of probable cause of seizure. Lord Lyons was subsequently informed that Her Majesty’s Government saw no reason to complain of this sentence. They understood the question of damages still to be open, but they were not prepared to say that, if these should be refused they [there] would, in the peculiar circumstances of the case, be any necessity for an official complaint on their part. The only suggestion which Her Majesty’s Government made through the diplomatic channel as to payment of compensation was a request that some relief might be granted to the widow of the mate of the Saxon who was shot by an officer of the Vanderbilt, but the request was refused with asperity.

  1. Foreign Relations, 1915, Supplement, p. 578.
  2. The “following statement” was in French in the original manuscript.
  3. Navy Department, General, No. 492, Instruction to blockading vessels and cruisers, paragraph 13.
  4. Foreign Relations, 1915, Supplement, pp. 51115.
  5. The reference should include the Ambassador’s memorandum submitted December 13, 1915, to which the note of the 27th is a supplement. Ibid., pp. 630638, 651.