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

File No. 341.622a/200

The Ambassador in Great Britain (Page) to the Secretary of State

No. 4276

London, July 19, 1916 .
[Received July 31.]

Sir: With reference to my telegram No. 4568, July 17, 5 p. m.,³I have the honor to enclose herewith a copy of the memorandum received from Sir Edward Grey, under date of July 15.

I have [etc.]

Walter Hines Page

[Enclosure]

The British Secretary of State for Foreign Affairs (Grey) to the American Ambassador (Page)

No. 134235/T.

Memorandum

1. The United States Ambassador in his memorandum of the 19th ultimo states that the Government of the United States can not admit that it is lawful for His Majesty’s Government to arrest a German naval reserve officer travelling back to Germany on a neutral ship, and refer for support of this attitude to the old rule which they regard as having been confirmed by them and by His Majesty’s Government in the case of the enemy subjects removed from the S. S. China and to the terms of the Declaration of London of 1909.

2. It is necessary, in the first instance, to point out that the United States Government are under a misapprehension in thinking that His Majesty’s Government have already expressed their agreement with the view stated above by their promise to release the persons removed from the China. As has been explained to the United States Ambassador, His Majesty’s Government would not have made that promise if they had been aware of the fact, known to the British naval authorities on the spot but not immediately reported, that many of the party are enemy reservists. This fact was likewise not known to the United States Government, who state in the note presented by the Ambassador on the 27th April last, that “The real question is one of fact, namely, whether those removed from the China are military or naval persons. The facts in question are not doubtful. The evidence in the Department of State shows that the vessel is a regular mail steamer plying between China and the United States ... that those who took passage thereon were not of military age or character.” The case of the China was discussed on the assumption that the persons arrested were not members of the armed forces of the enemy and that their intention was not to join those forces but to carry out operations in neutral territory which, though hostile to this country and connected with the war, were not military operations in the ordinary sense of the term. The full report from the local naval authorities, since received, shows that many of the party are active or reserve members of the enemy forces and were trying to reach enemy territory. The case was therefore discussed on false premises and the promise that the prisoners would be released was given under a misapprehension; it seems to have been demanded under a like misapprehension, and though His Majesty’s Government, having given their word, did not feel at liberty to withdraw it if the United States Government saw fit, as they did, to hold them to it after the real circumstances were discovered; they can not admit that either their action in releasing the prisoners or the views they have expressed in discussing the case, constitute in the slightest degree an admission that it is not within their rights to arrest enemy “reservists” (which phrase in this memorandum is used to designate all persons liable to military service) travelling to join the enemy forces.

3. As His Majesty’s Government read the history of the matter, it has always been admitted that in certain circumstances the carriage of persons in the employment of a belligerent on a neutral ship exposes the vessel to capture and condemnation in the prize court. There is no doubt that this is so if the neutral ship is in the actual service of the enemy as a transport, and it was also held to be so, when the vessel was not in the enemy service, if the master knowingly took for the enemy government, or its agents, persons or papers of such a character and destination that the transporting of them under the neutral flag was an actual belligerent service to the enemy state. The foundation of this doctrine is that by rendering services of this nature to a belligerent state the ship forfeits her neutral character.

4. In addition there existed to a considerable extent a practice of taking out of a neutral ship enemy subjects employed in the service of an enemy state without capturing the vessel or placing it in the prize court. In consequence, a considerable number of treaties were entered into providing that enemy subjects should not be taken off neutral ships unless they were (to quote a clause which occurs in several treaties of this description) “military persons and effectively in the service of the enemy.” Both the United States and Great Britain were parties to several treaties of this nature, but the provision does not appear in any treaty between the two countries.

5. In this condition of affairs the Trent case occurred. This case gave rise to a good many questions, and it can fairly be said that the only point which the United States Government admitted in their correspondence relating to the case was that the action of the naval officer who arrested Messrs. Slidell and Mason was irregular in that he ought to have captured the vessel and brought her before a prize court instead of taking the two Confederate agents out of her. But it appears that the United States Government, in releasing the prisoners, saw an opportunity of enforcing a principle for which they had previously contended, that the only class of persons who can be removed from a neutral vessel without bringing her in for adjudication in the prize court are persons in the military service of the belligerent. His Majesty’s Government are therefore not disposed to deny the claim of the United States Government that this is the rule of law which they have previously upheld.

6. The principle that there are certain classes of persons whom a belligerent is entitled to remove from a neutral vessel, although their carriage may not have rendered the ship liable to condemnation, without the necessity of instituting prize proceedings, was recognized by the Declaration of London. This class of persons was defined by Article 47 as “individuals embodied in the armed forces of the enemy”; and a similar phrase, which occurs in Article 45 of the Declaration, was interpreted in the report on the Declaration in connection with the latter article as not including reservists; the reasons given for this limitation were reasons of expediency, not of law or logic, and do not, as a matter of fact, apply to Article 47 as they apply to Article 45. The reasons which led to this provision seem to have been the realization of the fact that a belligerent may claim to prevent the passage on the high seas of persons the object of whose journey is to assist the military operations of his enemy, and that it is more convenient for all parties that this should be done without the necessity of instituting proceedings against the vessel in prize. The result would have been, had the declaration been ratified, to confirm the old practice which has been referred to above, and the class of persons who, according to the definition in the Declaration of London, might be removed in this way was identical with that covered by the provision in the old treaties, i. e., persons who are in the military service of the enemy. The question is therefore narrowed down to the question whether reservists of modern conscript armies travelling home to join those armies can properly be described as members of those armies. His Majesty’s Government have no hesitation in answering this question in the affirmative.

7. In the days of the old treaties to which reference has been made warfare was conducted mainly by comparatively small professional armies and the question of reservists did not arise. It is not surprising that it was not foreseen that there would be a need in the future for defining the position of persons trained for military service and bound by the laws of their country to serve in a military capacity whenever war should break out and their services be called upon. It can not be argued from this omission that the arrest of such persons on their way to join their national army is a violation of the rule stated in those treaties, still less of the principle underlying that rule. That principle is that a belligerent is entitled to prevent his enemy from making use of the protection of a neutral ship in order to increase his efficiency for the operations of war, and that, therefore, persons, the object of whose voyage is to assist in belligerent operations, may be removed from the ship, even though she does not expose herself to prize court proceedings by carrying them.

8. As was stated in Sir E. Grey’s note of the 16th March last, His Majesty’s Government believe that this principle covers logically the cases of persons intending to promote the warlike purposes of one belligerent by organizing oh neutral territory the destruction of the other belligerent’s necessary equipment for war by inventing and furthering on such territory schemes of revolution to impair that belligerent’s strength or otherwise, e. g., by acting as the enemy’s secret service agents. Although they had good reason to believe that such were the objects of the persons arrested on board the China, His Majesty’s Government nevertheless consented to release those persons in deference to the representations of the United States Government which were based on the letter of existing precedents, and ignored, as His Majesty’s Government think, the principle which underlies those precedents and the conditions of the present war. In the case of enemy reservists returning home to join their mobilised armies, His Majesty’s Government can not perceive that even the narrowest construction of existing law supports the contention that their arrest on board neutral ships is inadmissible. His Majesty’s Government believe that before the London Naval Conference it would never have been argued that reservists in such a position were not in the military service of the belligerents concerned. As the Declaration of London has not been ratified, His Majesty’s Government are not bound by its terms, and they may add that inasmuch as the United States Government announced in October, 1914, that their suggestion as to the adoption of the declaration as a temporary code during the present war was withdrawn, and that they would insist that the rights and duties of the Government and citizens of the United States should be defined by existing rules of international law and the treaties of the United States without regard to the provisions of the declaration, it is not now open to the United States Government to appeal to its provisions in this respect. Morally, His Majesty’s Government see no reason to adhere to an illogical definition which appears to them in no wise based on the previously acknowledged principles of international law. The reservist of a modern army is bound under the severest penalties, when called upon, to serve in that army; his intention in returning home when war has broken out is to carry out his military duties; his previous training enables him to carry out those duties with efficiency, and his arrest, if he is travelling home on board a neutral ship, is as important to the opposing belligerent and no more irksome to the neutral concerned than would be the arrest of a member of the forces actually under arms. It is on facts such as these, and not on a narrow scrutiny of the technical status which may be assigned to him by the law of his country, that the question must be judged; to act otherwise is to ignore facts, to set a principle at the mercy of an accident of nomenclature and, it may even be, to declare the reservists of one national army subject to arrest and those of another immune. His Majesty’s Government would also point out that the action of the United States Government themselves appears to be inconsistent with the contention now put forward by them. Although prosecutions have been instituted by the United States authorities against persons in the United States of America who have assisted British subjects, not reservists, to return to this country for the purpose of enlisting, no objection has been taken to German consular officers paying the travelling expenses of German reservists returning to Germany to join their units. The distinction drawn between these two cases is understood to be that as German reservists are already members of the German Army, no subsequent enlistment takes place in their case. It was stated in the Washington Times of July 7, 1915, that “officials of the Department of Justice made it plain that there is a distinction between the mobilization of reserves for foreign army duty and the recruitment of soldiers. The German and French Army reservists are permitted to assemble and return to their native country for duty. The British Army has no reserve and men taken for such service must enlist.”

It would therefore appear that in the opinion of the United States Government German reservists are regarded when within the United States of America as members of the German armed forces, and that therefore there is no objection to German officials providing their passages home in order to enable them to perform their military duties; but that while they are on the high seas on their way back to Germany for this purpose they are not to be regarded as members of the German armed forces, and therefore can not be removed from neutral vessels. His Majesty’s Government are unable to accept such a contention.

Foreign Office, July 15, 1916 .

3. Not printed.