Papers Relating to the Foreign Relations of the United States, 1916, Supplement, The World War
File No. 341.622a/270a
The Secretary of State to the Ambassador in Great Britain (Page)
Sir: I enclose the text of a communication which I desire you to address to Viscount Grey in the form of a memorandum in reply to that part of the British memorandum of July 15, 1916,1 which relates to the seizure by the Laurentic on the high seas of 38 subjects of the enemies of Great Britain from the American steamship China, en route from China to the United States.
With this communication to the British Government I am willing to consider the case of the S. S. China as closed. The discussion of the [Page 663] principle involved, however, I shall take the liberty of continuing in relation to the cases of other American vessels from which seamen and officers have been summarily removed. As to these cases, I shall address you a separate instruction containing a full exposition of the views of this Government for communication to Viscount Grey.
I am [etc.]
Memorandum
The Government of the United States acknowledges the receipt of the memorandum of the British Government dated July 15, stating, in regard to the case of the S. S. China, that “His Majesty’s Government would not have made that promise [to release the prisoners] if they had been aware of the fact, known to the British naval authorities on the spot, hut not immediately reported, that many of the party are enemy reservists,” that “this fact was likewise not known to the United States Government,” according to the assertion in its note of April 27, that on the evidence presented the prisoners “were, not of military age or character,” that “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.”
The Government of the United States can not allow these statements to stand as an account of this case, except in the light of the preceding negotiations.
Referring to an earlier case, which arose soon after the war opened, it will be recalled that in the case of Piepenbrink, a German waiter removed from the American steamship Windier on the high seas by the French cruiser Condé, and taken to Kingston, Jamaica, as a prisoner of war, the Government of the United States notified the British Government in March 1915, that “the facts show that Piepenbrink was not embodied ‘in the armed forces of the enemy’ in the sense of the rule on that subject in the Declaration of London, and apart from the Declaration of London, which this Government does not recognize as in force, there is no justification in international law for the removal of an enemy subject from a neutral vessel on the high seas bound to a neutral port, even if he could properly be regarded as a miliary person.” In support of this rule a quotation was added from a communication of Earl Russell in the Trent case. A communication in similar terms was also made to the French Government in the same case.
The same position was taken by the Government of the United States in the case of the 38 persons taken out of the American steamship China. On February 23, Mr. Page was instructed to bring this case to the immediate notice of His Majesty’s Government, stating: “As it is understood that none of the men taken from the China were incorporated in the armed forces of the enemies of Great Britain, the action of the Laurentic must be regarded by this Government as an unwarranted invasion of the sovereignty of American vessels on the high seas. After the notice given to the British Government of this Government’s attitude in the Piepenbrink case in March last, which was based upon the principle contended for by Earl Russell in the Trent case, this Government is surprised at this exercise of belligerent power on the high seas far removed from the zone of hostile operations.” Mr. Page was instructed to Insist that, if the facts were as reported, orders be given for the immediate release of the persons taken from the China. On March 16, nearly a month after the incident of the S.-S. China occurred, Sir Edward Grey replied, and in justification of the action of the Laurentic explained that, “From actual occurrences and from reliable information received, it has been definitely established that the Germans resident in Shanghai have been engaged for some time past in the collection of arms and ammunition, both for clandestine transmission to [Page 664] India and, if possible, for the arming of a ship to play the part of a Far Eastern Moewe”; that “the Germans became aware that His Majesty’s Government knew of their plots”; that “the Commander in Chief, China station, received information that owing to this fact the Germans were planning to shift the center of their activity from Shanghai to Manila”; that “subsequently he was definitely informed that 35 Germans had planned to leave Shanghai on the S. S. China and proceed to Manila”; that thereupon “His Majesty’s ships were sent to patrol off the mouth of the Yangtze with the view of intercepting this party”; that the China “was intercepted by His Majesty’s ship Laurentic and found to have on board Germans and Austrians corresponding to those concerning whom information as mentioned above had been received”; that “the Laurentic therefore had no hesitation in removing them”; that “subsequent information fully confirms that the movement of the body of Germans in question was an integral part of the plot referred to above”; and that “the object of their journey was to find another neutral asylum in which they might continue their operations against the interests of this country.” It may be added that the boarding officer of the Laurentic stated to the captain of the China, as he deposes, that British cruisers had been waiting 15 days for the China, and that the captain of the Laurentic had been informed by wireless that “the China had German male passengers on board.”
From the foregoing it seems clear that the ground “definitely established” and “confirmed” for the removal of these persons was that they had been engaged in the collection of arms and ammunition for transmission to India and for the arming of a German raider to operate in the Far Eastern seas and not because they were “enemy reservists.” This conclusion is further borne out by the fact, admitted by the British Government, that over half of the 38 persons seized were not “enemy reservists,” being, as will be shown later, either not of military age or incapacitated for military service.
In the note of March 16, 1916, the British Government sought to justify the action of the Laurentic on the ground that “the principle ... that there are certain classes of persons who are not protected by a neutral flag on the high seas, and may ... be removed from a neutral ship is now generally admitted,” as shown by the Declaration of London, which grants, in Article 47, the removal of “persons embodied in the armed forces of the enemy,” and that the “position and character” of the persons removed from the China brought them within the principle, because “Practical considerations from the belligerent’s point of view have changed and the change necessarily implies a modification in the precise description of enemy subjects whom it is lawful to arrest ...” Though disagreeing with these contentions, the Government of the United States took up the discussion of this case (as it did subsequently in the Henry S. and Ausable cases) on the same grounds, in an effort to show that the “certain classes of persons who are not protected by a neutral flag” were limited to “military or naval persons,” and that therefore the removal of the German intriguers and insurrectionists from the China was not justified even under the British contentions. Accordingly, on April 27, Mr. Page, under further instructions from his Government, informally presented the case in this light to Sir Edward Grey, and, as a result, on May 5 Sir Edward Grey orally informed Mr. Page that the men taken from the China would be released, but added that in a memorandum under preparation His Majesty’s Government would explain that they could not open the door through which enemy reservists in neutral countries might reach home. Subsequently Mr. Page intimated to Sir Edward that his Government would emphatically protest if the British Government called into question the principle involved. In an interview on May 11, Sir Edward Grey assured Mr. Page that the principle involved would not be questioned, and showed Mr. Page a draft of the proposed memorandum, in which no mention was made of enemy reservists. At the same time, Sir Edward Grey said that he had, since May 5, received new facts then unknown to him concerning 15 of the men removed from the China, who had been ascertained to be “8 of crews of enemy’s vessels at Shanghai, 3 Austrian officers, and 4 German reserve officers”; that “the majority were going back to Germany and had false passports, which they destroyed before they were taken,” the German Consul providing the passage money in several instances, and that “these men are organized parts of armed forces.” Sir Edward therefore hoped that the United States would consent to the retention of these 15 if proof of their organized status was found to be acceptable. On the following day, May 12, Mr. Page received the Foreign Office memorandum, which, however, was [Page 665] dated May 8. The memorandum stated that “His Majesty’s Government declare their intention to release the persons as requested, and express their regret at the occurrence.”
After quoting the facts stated in Mr. Page’s aide mémoire of April 27 as to the military age or character of these men and their transportation to the United States, the memorandum further stated that these facts were recited in order that “the precedent may only be applied in the future in cases in which the facts are the same.” After quoting further from the aide mémoire of the United States with regard to intriguing in neutral countries, the British memorandum stated that His Majesty’s Government did not desire to raise any question of altering the established rule without the consent of other governments, and suggested that “the American Government might find it not unreasonable to consider whether, in future years, there should not by international agreement be allowed some greater power in controlling the movement of enemy subjects across the seas, at any rate in cases where there is prima facie evidence of [intention?] to use neutral territory to commit criminal or hostile acts.” No mention was made in the memorandum of “enemy reservists.”
On May 16 Mr. Page orally informed Sir Edward Grey in effect that, notwithstanding the new facts mentioned on May 11 regarding 15 of the men, the Government of the United States could not consent to their retention; that; moreover, it did not appear from Sir Edward’s statement that these men were combatants, and that, assuming they were combatants, this evidently was not known at the time of the seizure. If their combatant character had been known and acted on, presumably this ground for the seizure would have been stated in the British memorandum of March 16. To Mr. Page’s statement, Sir Edward Grey replied that the 15 men were known to the British authorities in the Orient at the time of the seizure to have been incorporated in the armed forces of the enemies of Great Britain, but that this knowledge had not reached him on May 5, when he gave his oral promise to release the men.
On May 20 Sir Edward again stated that all the persons would be released in conformity with his oral promise of May 5 and his memorandum of May 8. Thereupon, Mr. Page communicated to Sir Edward the appreciation of this Government at the amicable settlement of the China case which had been reached by the two Governments and requested to be informed as to when the persons would be released and what arrangements were being made for their transportation to destination.
No further point, save that of delay in releasing the prisoners, was raised between the two Governments until June 29, when, in a memorandum from the Foreign Office dated June 28, Mr. Page was informed that the promise of release was given under the impression that none of the persons was of military age or character. “It now appears that many of the persons are of military age, that they are military or naval reservists, and, according to the latest information at the Admiralty, some of them are officers who have actually served in the present war who had been taken prisoners and subsequently escaped. The knowledge that these persons were military or naval reservists, or of military age, was known to the officer who ordered their removal at the time of their arrest, although this information had not at that date reached the Admiralty. Had these facts been known to the First Lord of the Admiralty or the Secretary of State for Foreign Affairs, the promise would never have been given, and it is only on the receipt of full reports that have been a long time in reaching His Majesty’s Government from the Officers on the spot, owing to the distance, that the facts have become known.” Nevertheless, it was added, the men would be released in accordance with the promise already given.
July 5 Mr. Page, acting under instructions, stated orally to Sir Edward, among other things, that the Government of the United States could not admit the settlement of this case upon such a reservation, as it is totally at variance with the rule to which both Governments are committed in their practice since the American Civil War, and asked Sir Edward if he regarded his memorandum of June 28 as modifying the views expressed in his memorandum of May 8, and if so whether he would withdraw the objectionable sentence in which he stated that had the reservist character or military age of the men been known to the British authorities in England the “promise would never have been given” in view of the hypothetical nature of the statement.
Sir Edward replied in substance that he did not regard his memorandum of June 27 [28] as modifying his memorandum of May 8 and that he could not [Page 666] consent to omit the objectionable sentence, but he hoped his explanation to be made in writing would go far to remove the objectionable nature of the sentence.
On July 18 Mr. Page received from Sir Edward Grey a memorandum dated July 17 stating in part:
The promise to release the prisoners was given in the belief, amongst other reasons, that they were not reservists nor even of military age, but with an express stipulation that the release should not be a precedent for any other case in which all the various conditions attaching to the case of the China did not exist.
It subsequently transpired that some of the prisoners were not only of military age but were actually reservists, and in order to prevent the case of the China from being quoted as a precedent Sir Edward Grey stated that had these facts been known the promise would not have been given. The object of these words was to secure that any future cases should be discussed on their merits without being prejudiced by the case of the China.
Following this Mr. Page received the memorandum of July 15 under reply, stating that the American demand and the British promise had both been made under a misapprehension of the facts. As to the misapprehension on the part of Great Britain, the foregoing account of the negotiations shows that when the Government of the United States based its demand of February 23 on the ground previously taken in the note of March 4 [2], 1915,1 in the Piepenbrink case, namely, that the men were not only not incorporated in the armed forces of the enemies of Great Britain, but the removal of an enemy from a neutral vessel on the high seas bound for a neutral port is without justification in international law, even if he could properly be regarded as a military person, the British note of March 16, 1916, written nearly a month after the arrest of the persons in question, justified the seizure on the ground that “certain classes” of persons are not protected by a neutral flag, and that the persons in question, having been engaged in the collection and transmission of arms to India and in the outfitting of a German raider, came within the proscribed classes. Whereas, when the Government of the United States, meeting the British Government on their own ground, took the position that these classes of persons were “only military or naval persons,” and contended in its note of April 27 that in this particular case the persons were not even military or naval persons, the British Government abandoned their first ground, and sought to demonstrate that at least some of the men in question were military or naval persons, and that this information was known to the local naval authorities and to the commanding officer of the Laurentic at the time of the arrest, but had not come to the knowledge of the British authorities in London on May 5, when the promise was given for the release of these men.
If either ground of action were allowed to govern belligerent practice, it is obvious that the principle involved, would be totally nullified and any neutral vessels, even when plying between neutral ports, would be subject to an intolerable inquisition and inconvenience through reckless search for and arrest of any enemy subjects on board, whether among the officers, crew, or passengers.
As to the misapprehension regarding age and military character of the men under which His Majesty’s Government believe the demand of the Government of the United States was made, the Government of the United States is willing to acknowledge that the information available at the time differed widely from the description of the prisoners given in the Foreign Office memorandum of August 8. But even according to this memorandum, 10 were not between 20 and 45 years of age, and 12 were either incapacitated for military service or had never served. From other sources it appears that one other person was a physician, and still others were business men and merchants. These men, at least, clearly are not of military age and character. The remainder, according to the British description, may perhaps have been of “military age” and subject to call to the colors of the enemies of Great Britain—in the language of the British memorandum, “enemy reservists (which phrase . . . is used to designate all persons liable to military service) travelling to join the enemy forces.” Nevertheless the British Government have, in the opinion of the Government of the United States, failed to show that these men are of “military character.” But even assuming that all of the persons taken from the [Page 667] S. S. China were of “military character,” the Government of the United States does not admit that they may be arrested and seized on the high seas from an American vessel flying the American flag, for, as has heretofore been reiterated by the Government of the United States, such seizures are without justification in international law.
As, however, the British Government have expressed their regrets at the occurrence of the incident and have released the 38 persons arrested and removed from the American steamship China, the Government of the United States regards the case as closed, as stated in the British memorandum of July 17, on the understanding that “any future cases shall be discussed on their merits without being prejudiced by the China.”
The remaining points in the British memorandum of July 15 will be taken up and discussed in a further reply under preparation in regard to the cases of the men seized and removed from the American steamships Henry S. , Ausable, and Marcus L. Urann.