File No. 341.622a/84
The Secretary of State to the Ambassador in Great Britain (Page)
3233. As I regard the continued retention by the British Government of persons seized from the American steamer China by His Majesty’s ship Laurentic of grave import, I am sending these instructions by telegraph.
On account of its immediate importance I can not allow this case to become one of dilatory legal argument. The rule is plain and definite—only military or naval persons may be removed from neutral vessels on the high seas. This rule has been contended for and maintained by the United States for over a century. It was expressly invoked by the British Government and followed by the United States in the Trent case, and received the official approval of nearly all of the governments of Europe. It was affirmed by the British Government in its proclamation of neutrality of April 23, 1898, in the Spanish-American war; and recognized in the cases of the Bundesrath, General, and Herzog in the Boer war. It is the rule adopted in the Declaration of London, which the British Government admits “represents the latest, if not the only, attempt to arrive at a definition by common consent of the chief maritime nations.” The British Government admits that it adopted the rule set forth in the Declaration of London until the acts of its enemies in removing persons of military age from the occupied portions of Belgium and France made it necessary to repudiate the “restrictive terms” of Article 57. The fallaciousness of this ground for repudiating the rule is manifest, for it amounts to saying that because a belligerent government undertakes to commit a reprehensible act in territory which it occupies, its enemy may violate the sovereignty of a neutral to commit a similar act. All the United States asks Great Britain to do is to return to the rule to which both countries are bound as strongly by practice as if by treaty engagement.
The rule being established, the only question is one of fact, namely, whether the persons removed from the China are military or naval persons. The facts are not doubtful. The evidence before the Department shows that the vessel is a regular mail steamer plying between China and the United States; that it never postponed its sailing from time to time, as alleged, on account of the presence of British vessels in the offing; that the Germans who took passage were not of military age or character; that they were traveling on individual tickets for the United States, that is, from one neutral country to another neutral country, and not as members of a military corps; that the vessel was not chartered for the particular purpose of their transportation, but that they were transported simply [Page 638] as passengers on an American steamer in the ordinary course of its passenger service.
The alleged fact that they were intriguing to foster rebellion in India and Cochin China can not make them subject to seizure on an American vessel on the high seas or in neutral jurisdiction. If they were intriguing while in Chinese territory, the complaint of Great Britain was clearly one to be laid before the Chinese Government. She had no more right to invade the neutral jurisdiction of an American vessel to apprehend them than to invade the territorial jurisdiction of China for that purpose. Moreover, the alleged fact that they were about to extend their activities to the commission of violations of neutrality of the United States can not be accepted as an excuse for their seizure on the high seas. The Government of the United States alone is responsible for any breaches of neutrality which may be committed or attempted in its territory and it can not allow a foreign government to assume the privilege of avoiding the possibility of such breaches by wrongful interference with American vessels. Finally, no significance can be made to attach to the alleged requests by this Government for safe-conducts for enemy subjects. The British Government well knows that in every instance this Government was simply the medium of communication for requests by the German Embassy in behalf of applicants who feared—and it appears not without cause—that they would be wrongfully molested on the high seas by the British naval authorities.
The distinction sought to be drawn between the China case and the Trent case does not appear to this Government to be well founded; on the contrary, the Trent case is, in the opinion of this Government, similar to the present case in every essential fact. In that case four private persons, enemies of the United States Government, en route from a neutral country to a neutral country, not in the military service of their government but bent on the violation of the neutrality of England by granting commissions and dispatching commerce destroyers from her ports, were arrested and removed from a British merchant vessel on the high seas by an American ship of war. That these persons were not diplomatic agents of a recognized government is shown by the statements of the then British Minister that “these gentlemen have no official character” and should be treated as “private gentlemen of distinction.” The British demands were not based on their diplomatic character and it was only after the case had been settled that Lord Russell discussed the case from that point of view. It will be recalled also that at that time it was notorious that members of the Southern Confederacy were in Great Britain plotting against the United States. Military, naval, and fiscal agencies had been established and commerce raiders were being built or fitted out in England.
It would be difficult to find two cases more alike. The British Government can not now justly invoke in its favor the principles which it repudiated in the Trent case and which, if admitted, would invite further invasions of the indisputable rights of American vessels when traversing the high seas.
In view of the definite and decided stand taken by Great Britain in the past, in view of the established facts in the China case, and [Page 639] in view of the universally recognized precedent in the Trent case, the United States is unwilling to believe that it can be the deliberate intention of the British Government at this day to attempt to discuss a question involving so grave an affront to the American flag and so manifest a violation of international law. The United States can not admit that its right to the release of the persons seized and to full reparation for the offense is open to question.
Please bring the foregoing to the attention of the British Government and impress earnestly upon Sir Edward Grey that the only redress that can satisfy the Government and people of the United States is the immediate release of these persons, as the British Government has not shown that they were embodied in the armed forces of the enemy, and an apology for the disrespect shown the flag of the United States by their seizure. Please continue to press for prompt compliance with this justifiable expectation of this Government.
If the British Government replies in the form of a note, telegraph the same fully to me instead of transmitting it by mail, as this Government does not purpose to allow an act affecting the respect due to the flag of the United States to become the subject of a protracted correspondence.