Papers Relating to the Foreign Relations of the United States, 1916, Supplement, The World War

File No. 841.711/1346

The French Ambassador (Jusserand) to the Secretary of State

[Translation]

Washington, October 12, 1916 .
[Received October 13.]

Mr. Secretary of State: I did not fail to transmit to my Government a copy of the note which your excellency did me the honor to address to me, as also to his excellency the Ambassador of England on May 24 last, in respect to postal correspondence found on merchant vessels on the high seas.¹

The remarks formulated in that document have been given the serious consideration they call for, both from the standpoint of the rules of international law and established precedents and from that of the procedure now followed in the matter by the governments concerned.

Pursuant to instructions received I have the honor to address to your excellency the enclosed memorandum which sets forth the views of the French and English Governments on that question and specifies the grounds upon which they base their belief that their procedure does not depart from the rules of international law or previously established usage.

They admit on the other hand that errors or derelictions may be fallen into by the authorities in charge of that branch of questions; they will not fail, whenever these should occur in spite of all the precautions taken, to settle responsibility therefor in accordance with law and justice.

Be pleased [etc.]

Jusserand

[Enclosure—Translation]

Memorandum

1. By a letter of May 24 last the Secretary of State of the United States was pleased to give the views of the American Government on the memorandum of the Allied Governments concerning mails found on merchant ships on the high seas.

2. The Allied Governments have found that their views agreed with those of the Government of the United States in regard to the Postal Union Convention, which is recognized on both sides to be foreign to the questions now under consideration; post parcels respectively recognized as being under the common rule of merchandise subject to the exercise of belligerent rights, as provided by international law; the inspection of private mails to the end of ascertaining whether they do not contain contraband goods and, if carried on an enemy ship, whether they do not contain enemy property. It is clear that that inspection which necessarily implies the opening of covers so as to verify the contents could not be carried on on board without being attended with great confusion, causing serious delay to the mails, passengers, and cargoes, and without causing for the letters in transit, errors, losses, or at least great risk of miscarriage. That is the reason why the Allies had mail bags landed and sent to centers provided with the necessary force and equipment for prompt and regular handling. In all this the Allied Governments had no other object in view than to limit, so far as possible, the inconvenience that might result for innocent mails and neutral vessels from the legitimate exercise of their belligerent rights in respect to hostile correspondence.

3. The Government of the United States agrees with the Allied Governments as to principles, but expresses certain divergent views and certain criticism as to the methods observed by the Allies in applying these principles.

4. These divergencies of views and criticisms are as follows:

5. In the first place, according to the Government of the United States, the practice of the Allied Governments is said to be contrary to their own declaration in that, while declaring themselves unwilling to seize and confiscate genuine mails on the high seas, they would obtain the same result by sending, with or without their consent, neutral vessels to Allied ports, there to effect the seizures and confiscations above referred to, and thus exercise over those vessels a more extensive belligerent right than that which is theirs on the high seas. According to the Government of the United States there should be, in point of law, no distinction made between seizure of mails on the high seas, which the Allies have declared they will not apply for the present, and the same seizure practiced on board ships that are, whether willingly or not, in an Allied port.

6. On this first point and as regards vessels summoned on the high seas and compelled to make for an Allied port, the Allied Governments have the honor to advise the Government of the United States that they have never subjected mail to a different treatment whether it was found on a neutral vessel on the high seas or on neutral vessels compelled to proceed to an Allied port. They have always acknowledged that visits made in the port after a forced change of course must in this respect be on the same footing as a visit on the high seas, and the criticism formulated by the Government of the United States does not therefore seem warranted.

7. As to ships which of their own accord call at Allied ports, it is important to point out that in this case they are really “voluntarily” making the call. In calling at an Allied port the master acts, not on any order from the Allied authorities, but solely carries out the instructions of the owner; neither are those instructions forced upon the said owner. In consideration of certain advantages derived from the call at an Allied port, of which he is at full liberty to enjoy or refuse the benefits, the owner instructs his captain to call at this or that port. He does not, in truth, undergo any constraint. In point of law the Allied Governments think it a rule generally accepted, particularly in the United States (U. S. vs. Dickelman, U. S. Supreme Court, 1875; 92 U. S. Rep., 520; Scott’s Cases, 264), that merchant ships which enter a foreign port thereby place themselves under the laws in force in that port, whether in time of war or of peace, and when martial law is in force in that port. It is therefore legitimate in the case of a neutral merchant ship entering an Allied port for the authorities of the Allied Governments to make sure that the vessel carries nothing inimical to their national defense before granting its clearance. It may be added that the practice of the Germans to make improper use of neutral mails and forward hostile correspondence, even official communications dealing with hostilities, under cover of apparently unoffensive envelopes mailed by neutrals to neutrals, made it necessary to examine mails from or to countries neighboring Germany under the same conditions as mails from or to Germany itself; but it goes without saying that mails from neutrals to neutrals that do not cover such improper uses have nothing to fear.

8. In the second place, according to the Government of the United States, the practice now followed by the Allied Governments is contrary to the rule of Convention XI of The Hague, 1907, which they declare their willingness to apply, and would, besides, constitute a violation of the practice heretofore followed by nations.

9. In regard to the value to be attached to Convention XI of The Hague, 1907, it may first of all be observed that it only refers to mail found at sea and that it is entirely foreign to postal correspondence found on board ships in ports. In the second place, from the standpoint of the peculiar circumstances of the present war, the Government of the United States is aware that that convention, as stated in the memorandum of the Allies, has not been signed or ratified by six of the belligerent powers (Bulgaria, Italy, Montenegro, Russia, Serbia, and Turkey); that for that very reason Germany availed itself of Article 9 of the convention and denied, so far as it was concerned, the obligatory character in these stipulations; and that for these several reasons the convention possesses in truth but rather doubtful validity in law. In spite of it all, the Allied Governments are guided in the case of mails found on board ships in ports by the intentions expressly manifested in the conferences of The Hague sanctioned in the preamble to Convention XI, and tending to protect pacific and innocent commerce only. Mails possessing that character are forwarded as quickly as circumstances permit. In regard to mails found on vessels at sea, the Allied Governments have not for the present refused to observe the terms of the convention reasonably interpreted; but they have not admitted and can not admit that there is therein a final provision legally binding them, from which they could not possibly depart. The Allied Governments expressly reserve to themselves the right to do so in case enemy abuses and frauds, dissimulations and deceits should make such a measure necessary.

10. As for the practice previously followed by the powers in the time of former wars, no general rule can easily be seen therein prohibiting the belligerents from exercising on the open seas, as to postal correspondence, the right of supervision, surveillance, visitation, and, if need be, seizure and confiscation, which international law confers upon them in the matter of any freight outside of the territorial waters and jurisdiction of the neutral powers.

11. On the high seas, under international law, it is for the belligerents to seek and prevent transportation or other acts by which neutral vessels may lend their cooperation and assistance to hostile operations of the enemy. Now, as has long ago been observed (among others, Lord Stowell in The Atalanta, 6 Robinson, 440; 1 English Prize Cases, 607; Scott’s Cases, 780), a few lines of a letter delivered to an enemy may be as useful as or even more useful than a cargo of arms and ammunition to promote his war operations. The assistance rendered in such cases by the vessel carrying such a letter is as dangerous for the other belligerents as the assistance resulting from the transportation of military cargoes. As a matter of fact, experience has in the course of the present war demonstrated the truth of this remark. Hostile acts which had been projected in mails have failed. Dangerous plots, from which even neutral countries are not safe at the hands of the enemy, were discovered in the mails and baffled. Finally, the addresses of certain letters, which the Allies had seen fit to respect, have evidenced a satisfaction the hostile character of which leaves no doubt as to the significance of those letters.

12. The report adopted by the Conference of The Hague in support of Convention XI leaves little doubt as to the former practice in the matter: “The seizure, opening of the bags, rifling, confiscation if need be, and in all cases delay or even loss, are the fate usually awaiting mail bags carried by sea in time of war.” (Second Peace Conference, Acts and Documents, vol. 1, p. 266.)

13. The American note of May 24, 1916, invokes the practice followed by the United States during the Mexican and Civil Wars; the practice followed by France in 1870; by the United States in 1898; by Great Britain in the South African war; by Japan and Russia in 1904; and now by Germany.

14. As regards the proceedings of the German Empire toward postal correspondence during the present war, the Allied Governments have informed the Government of the United States of the names of some of the mail steamers whose mail bags have been—not examined, to be sure—but purely and simply destroyed at sea by the German naval authorities. Other names could very easily be added—the very recent case of the mail steamer Hudikswall (Swedish), carrying 670 mail bags, may be cited.

15. The Allied Governments do not think that the criminal habit of sinking ships, passengers, and cargoes, or abandoning on the high seas the survivors of such calamities is, in the eyes of the Government of the United States, any justification for the destruction of the mail bags on board; and they do not deem it to the purpose to make a comparison between these destructive German proceedings and the acts of the Allies in supervising and examining enemy correspondence.

16. As to the practice of Russia and of Japan, it may be permitted to doubt that it was at variance with the method of the Allied Governments in the present war.

17. The Russian Imperial decree of May 13/25, 1877, for the exercise of the right of visit and capture, provides, paragraph 7: “The following acts which are forbidden to neutrals are assimilated to contraband of war: The carrying ... of despatches and correspondence of the enemy.” The Russian Imperial decree of September 14, 1904, reproduces the same provision. The procedure followed in regard to mail steamers, and the prize decisions bear witness that public or private mails found on board neutral vessels were examined, landed, and, when occasion arose, seized.

18. Thus, in May and July, 1904, postal correspondence carried on the steamships Osiris (British) and Prinz Heinrich (German) was examined by the Russian cruisers to see whether it contained Japanese correspondence. Thus, again, in July, 1904, the steamer Calehas (British), captured by Russian cruisers, had 16 bags of mail that had been shipped at Tacoma by the postal authorities of the United States seized on board and landed and the prize court of Vladivostock examined their contents, which it was recognized it could lawfully do. (Russian Prize Cases, p. 139.)

19. As regards the practice of Japan, the Japanese rules concerning prizes, dated March 15, 1904, made official enemy correspondence, with certain exceptions, contraband of war. They ordered the examination of mail bags on mail steamers unless there was on board an official of the Post Office, making a declaration in writing and under oath that the bags contained no contraband; it was even added that no account should be taken of such a declaration if there existed grave suspicions. On the other hand the Japanese Prize Court rules acknowledged the power of those courts in the examination of prize cases to examine letters and correspondence found on board neutral vessels. (Taka-hashi, International Law Applied to the Russo-Japanese War, p. 568.)

20. The French practice during the war of 1870 is found outlined in the naval instructions of July 26, 1870, under which official despatches were in principle assimilated to contraband, and official or private letters found on board captured vessels were to be sent immediately to the Minister of Marine. Subsequently the circumstances of war permitted of the rule in additional instructions, under which, if the vessel to be visited was a mail steamer having on board an official of the post office of the Government whose flag she displayed, the visiting officer might be content with that official’s declaration regarding the nature of the despatches.

21. During the South African war the British Government was able to limit its intervention in the forwarding of postal correspondence and mails as far as the circumstances of that war allowed, but it did not cease to exercise its supervision of the mails intended for the enemy.

22. As to the practice followed by the Government of the United States during the American Civil War, particularly in the Peterhoff case, cited in the American memorandum of May 24, 1916, the following instructions issued in that case by the Secretary of State of the United States do not seem to imply anything but the forwarding of correspondence which has been found to be innocent: “I have, therefore, to recommend that in this case, if the district attorney has any evidence to show the mails are simulated and not genuine, it shall be submitted to the court; if there be no reasonable grounds for that belief, then that they be put on their way to their original destination.” (Letter of Mr. Seward, Secretary of State, to Mr. Welles, Secretary of the Navy, April 15, 1863; VII Moore’s Digest, p. 482.)

23. Finally, as regards the free transit granted to mails by the United States during the Mexican war, one may be allowed to recall the circumstances under which this proceeding was adopted. By a letter dated May 20, 1846, notified on the following 10th of July, the commander of the United States cruiser St. Mary announced the blockade of the port of Tampico. Although that measure authorized, without a doubt, the seizure and confiscation of all correspondence for the blockaded port, the American naval authorities, on learning the circumstances of the case, declared “Neutral non-commercial mail packets are free to enter and depart,” and it was even added that “Mexican boats engaged exclusively in fishing will be allowed to pursue their labour unmolested.” (British and Foreign State Papers, vol. 35, 1846–1847.)

24. It seems difficult to compare the blockade of the port of Tampico in 1846 with the measures taken by the Allies in the course of this war to reduce the economic resistance of the German Empire, or to find in the method then adopted by the United States a precedent which condemns the practice now put in use by the Allied Governments.

25. To waive the right to visit mail steamers and mail bags intended for the enemy seemed in the past (Dr. Lushington, Naval Prize Law, Introduction, p. xii) a sacrifice which could hardly be expected of belligerents. The Allied Governments have again noted in their preceding memorandum how and why, relying on certain declarations of Germany, they had thought in the course of the Second Peace Conference of 1907 they could afford to waive that right. They have also drawn the attention of the Government of the United States to the fraudulent use Germany hastened to make of this waiver of the previous practices above mentioned.

26. After pointing to a certain number of specific cases where American interests happened to be injured from the postal supervision exercised by the British authorities, forming the subject of the special memorandum of the Government of His Majesty, dated July 20, 1916, the Government of the United States was pleased to make known its views as to what is to be and is not to be recognized as not possessing the character of postal correspondence.

27. In this respect the Government of the United States admits that shares, bonds, coupons, and other valuable papers, money orders, checks, drafts, bills of exchange, and other negotiable papers, being the equivalent of money, may, when included in postal shipments, be considered as of the same nature as merchandise and other property and therefore be also subjected to the exercise of belligerent rights.

28. Yet, the American memorandum adds that correspondence including shipping documents, lists of money orders, and documents of this nature, even though referring to shipments to, or exports by, the enemy, must be treated as mail and pass freely unless they refer to merchandise on the same ship that is liable to capture.

29. As regards shipping documents and commercial correspondence found on neutral vessels, even in an Allied port arid offering no interest of consequence as affecting the war, the Allied Governments have instructed their authorities not to stop them but to see that they are forwarded with as little delay as possible. Mail matter of that nature must be forwarded to destination as far as practicable on the very ship on which it was found or by a speedier route, as is the case for certain mails inspected in Great Britain.

30. As for the lists of money orders to which the Government of the United States assigns the character of ordinary mail, the Allied Governments deem it their duty to draw the attention of the Government of the United States to the following practical consideration:

31. As a matter of fact, the lists of money orders mailed from the United States to Germany and Austria-Hungary correspond to moneys paid in the United States and payable by the German and Austro-Hungarian post offices. Those lists acquaint those post offices with the sums that have been paid there which in consequence they have to pay to the addressees. In practice, such payment is at the disposal of such addressees and is effected directly to them as soon as those lists arrive and without the requirement of the individual orders having come into the hands of the addressees. These lists are thus really actual money orders transmitted in lump in favor of several addressees. Nothing, in the opinion of the Allied Governments, seems to justify the liberty granted to the enemy country so to receive funds intended to supply by that amount its financial resisting power.

32. The American memorandum sees fit firmly to recall that neutral and belligerent rights are equally sacred and must be strictly respected. The Allied Governments, so far as they are concerned, wholly share that view. They are sincerely striving to avoid an encroachment by the exercise of their belligerent rights on the legitimate exercise of the rights of innocent neutral commerce, but they hold that it is their belligerent right to exercise on the high seas the supervision granted them by international law to impede any transportation intended to aid their enemy in the conduct of the war and to uphold his resistance. The rights of the United States as a neutral power can not, in our opinion, imply the protection granted by the Federal Government to shipments, invoices, correspondence, or communications in any shape whatever having an open or concealed hostile character and with a direct or indirect hostile destination, which American private persons can only effect at their own risk and peril. That Is the very principle which was expressly stated by the President of the United States in his neutrality proclamation.

33. Furthermore, should any abuses, grave errors, or derelictions committed by the Allied authorities charged with the duty of inspecting mails be disclosed to the Governments of France and Great Britain, they are now as they ever were ready to settle responsibility therefor in accordance with the principles of law and justice which it never was and is not now their intention to evade.

1. Ante, p. 604.