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

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

No. 4520

Washington, December 1, 1916 .

Sir: I have already sent you the reply of this Government to that part of the British memorandum of July 15 last which deals with the case of the S. S. China.¹ The remainder of that memorandum is considered in the following memorandum, which you are instructed to read textually to Lord Grey, leaving a copy with him, on the subject of the Ausable, Henry S., and Marcus L. Urann.

Telegraph me immediately the impressions you receive upon presenting the enclosed communication, as I have in mind proposing to arbitrate the question after the war under the Hague Convention for the Peaceful Settlement of International Disputes, on condition that these men be released now and no other similar seizures be made by Great Britain or her allies during the continuance of the war.

I am [etc.]

Robert Lansing

[Enclosure]

Memorandum

The Government of the United States has given careful consideration to the memorandum of the British Government of July 15 last, relating to the removal by British authorities of certain alien enemies of Great Britain from American vessels while navigating the high seas or without legal right brought into a British port. As in the view of the United States the seizure of persons from American vessels in these situations is in the contemplation of law essentially similar and equally unjustifiable, these remarks will be applicable to the cases of the Henry S. , the Marcus L. Urann, and the Ausable.

It will be recalled that on March 16, 1916, the American steamer Henry S. , sailing between Mindanao and Balabac, Philippine Islands, was stopped on the high seas by a British cruiser, her cargo, papers, and crew were searched, boxes and cases being broken open, and the lining of the ship being cut by an armed boarding party, and engineer Weinert and boatswain Voik were seized as prisoners of war because they had no citizenship papers, the boarding officers refusing to make an entry in the log or to give the name of their ship. Several other instances of similar searches by His Majesty’s ships of American vessels in the seas about the Philippine Islands, even in Philippine waters, for the purpose of apprehending certain German subjects supposed to be passengers on outgoing vessels have come to the notice of the Government of the United States, and have heretofore been brought to the attention of His Majesty’s Government. In the case of the Henry S. , however, two Germans, members of the crew, were seized, forcibly removed from the vessel, and have since been held as prisoners of war on British soil. These men were not at the time of seizure, as the Government of the United States is formally advised by the German Ambassador at Washington, members of the armed forces of Germany, Austria-Hungary, or Turkey, but were civilians in the private American sea service, without any German connection whatever.

It will be recalled further that on January 14, 1916, the American steamship Ausable, bound from Galveston to Esbjerg, Denmark, and having no orders to call at Kirkwall, was without authority of law brought into that port for examination in charge of a British officer and armed guard. As a result of the examination, Third Officer Leiztritz was seized and removed from the vessel. The vessel was released, but Leiztritz has ever since been detained as a prisoner of war in Great Britain. His Majesty’s Government state that he has confessed to being a sublieutenant in the German Naval Reserve, having signed shipping articles as a seaman under a false name and with false Norwegian papers.

Since these two seizures took place, another of a similar nature has occurred. On June 23, 1916, the American schooner Marcus L. Urann, bound from Norfolk, Virginia, for Pernambuco, Brazil, was stopped on the high seas by a British cruiser, and seaman Hans Hercksen arrested and taken out of the schooner as a prisoner of war by the boarding officer, Sublieutenant Wait, R. N, R. who made the following entry in the log: “31° 13´ west longitude, 25° 8´ north latitude. This is to certify that I boarded the schooner Marcus L. Urann this day and took Hans Hercksen prisoner, as he was a German. June 23, 1916.”

The arrest of these four seamen belonging to American vessels and owing temporary allegiance to the American flag, and their detention as prisoners of war, are held by the Government of the United States to be in violation of the law and practice of nations, and constitute affronts to the American flag, under which American seamen serve and find their protection.

In the memorandum of July 15, under consideration, which is taken to be the answer of His Majesty’s Government to the representations heretofore made by the Government of the United States in these cases, the British Government appear to advance the argument that there has been a practice among nations to remove “enemy subjects employed in the service of an enemy state” from neutral ships without the necessity of instituting prize proceedings against the vessels; that this practice was confirmed in the early treaties made by the United States and Great Britain with other countries (although none was concluded between the United States and Great Britain) granting the arbitrary removal of “persons who are in the military service of the enemy”; that the Declaration of London further confirmed this practice by granting the summary removal of “persons incorporated in the armed forces of the enemy”; that “enemy reservists (which phrase is used to designate all persons liable to military service) travelling to join the enemy forces” fall in this class, and that therefore the action of the British authorities in removing such persons from American vessels is justified; that the general rule is, that “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”; that therefore, logically, this includes “persons intending to promote the warlike purposes of one belligerent by organizing on neutral territory the destruction of the other belligerent’s necessary equipment for war”; and that consequently the arrest of the alleged revolutionary intriguers in the case of the S. S. China is justified.

In reply to this argument the Government of the United States draws attention to the following considerations:

First. It may be doubted whether there ever existed among nations a practice, outside of convention, of removing certain classes of persons from neutral vessels on the high seas without bringing them in for adjudication. It is true that there were several treaties concluded in the seventeenth, eighteenth, and nineteenth centuries bearing on this subject, but they are by no means uniform in their stipulations. There were some treaties extending the rule of “free ships, free goods” to enemy subjects on free ships. They provide that enemy persons may not be removed from neutral ships unless they are “military persons and effectively [actually] in the service of the enemy,” but do not actually state that such persons may be removed without also capturing the ship.

There were treaties of this sort between France and the Netherlands (1678), between France, England, Spain, and Holland (Ryswick, 1697), between France and Great Britain (1713). Similar treaties with some variations in language, were made by the United States with France (1778, 1800), Sweden (1783), Prussia (1785), Spain (1795), Italy (1871), and with several Central and South American Republics (1825-1887); and by France with Great Britain (1786—“actually in the service of the enemy and being transported for employment as military persons in their fleets or armies”), Texas (1839), Ecuador (1843), and New Granada (1856—“at the moment engaged in the service of the enemy”). A treaty between Sweden and Holland (1675) prohibits the removal of persons “except only commanding generals and officers of the enemy.” Other treaties state definitely that such persons may be made prisoners of war, without mentioning the vessel. Of these may be mentioned the treaties between France and the City of Hamburg (1769), and between France and Mecklenburg (1779). Still other treaties assimilate soldiers to contraband, and prohibit the furnishing of transportation of military persons as well as certain mentioned articles of contraband. Such treaties were concluded between Sweden and Holland (1614), Holland and the Hanse towns (1615), France and Holland (1646), Spain and Holland (1650), Sweden and Holland (1675), and France and Great Britain (1677). Of these, the treaty of 1646 specifically provides the vessels engaged in transporting “men for the service of the enemy” shall be “good prize” together with the apparel and merchandise.

It can hardly be said that these treaties demonstrate a practice of nations to remove “enemy subjects employed in the service of an enemy state” from neutral ships without bringing them before the Prize Courts. If these treaties can be regarded as representing a practice of nations, as the British Government suggest, it was a practice recognized as permissible only under treaty agreement. The Government of the United States is not aware of any proof that these treaty provisions were declaratory of international law, or that they were so considered at the time of their signature or subsequently. The more reasonable view to take of them is that they represent an exception to the general practice of nations, just as the rule of “free ships, free goods,” provided for in many of the same treaties, was an exception to the practice of nations and was not generally adopted until about the middle of the last century. This view is borne out by the consistent practice of Great Britain and the United States during the very period when these treaties were in force.

As to British practice, it appears that the instructions to naval officers issued in the war with Spain, December 20, 1718, announced that vessels carrying soldiers were subject to condemnation as lawful prize (Doctor Robinson’s note to The Friendship, 6 C. Robinson, 421). In the Declaration of War of George II against the King of Spain, October 19, 1739, British subjects and “all other persons of what nation soever” are warned that “whatsoever ship or vessel shall be met withal transporting or carrying any soldiers, arms, powder, ammunition, or other contraband goods . . . the same being taken, shall be condemned as good and lawful prize.” (Gentleman’s Magazine, 1739, vol. 9, p. 551:) A similar warning occurs in the Declaration of War by George II against the King of France on March 29, 1744, and again on May 17, 1756. (Ibid., 1744, vol. 14, p. 167; 1756, vol. 26, p. 237.) It will be observed that the rule announced in these declarations of war against Spain and France was contrary to that laid down in earlier treaties enumerated above between Great Britain and these countries, to which Great Britain refers as confirming the established practice. Doctor Robinson, the learned reporter of the early decisions of the British Admiralty courts, having in mind the foregoing announcements, wrote in 1808 that the act of carrying soldiers of the enemy “has been in former wars assimilated to contraband by public proclamation and instructions, and has been declared to render the ship liable to condemnation.”

That neutral ships carrying soldiers were, as a matter of fact, captured by the British Navy and brought into port for prize proceedings is shown in the cases of The Carolina (1802); The Friendship (1807); The Orozembo (1807); and The Hope (1808). To the same effect may be cited the case of the Creta, which, during the Crimean War (1855), left Japan with 270 Russian officers on board and was seized and taken before the prize court at Hongkong. The court declared her to be good prize. (C. de Boeck, De la propriété privée ennemie sous pavilion ennemi, p. 113; Katchenovsky’s Prize Law, p. 156, Pratt’s translation.) That Great Britain herself was willing to submit to such practice by other belligerents is shown by the fact that in the proclamation of neutrality of May 13, 1861, at the beginning of the American Civil War, the British Government warned British subjects against doing “any acts in derogation of their duty, as subjects of a neutral sovereign in the said contest, or in violation or contravention of the law of nations in that behalf; as for example ... by carrying officers, soldiers, despatches . . . for the use or service of either of the said contending parties” under pain of becoming liable “to the several penalties and penal consequences by the said statute, or by the law of nations, in that behalf imposed or denounced,” of losing protection against any liabilities, and of in-curing “our high displeasure by such misconduct.” (British and Foreign State Papers, vol. 51, p. 165.)

In these circumstances the Trent case arose in 1861-2. Although relating to persons not in the military service of the enemy, this case is regarded by a majority of authorities as resulting in a general understanding that “in the absence of a treaty it is no longer allowable to take persons out of a neutral ship, but that the ship itself, with the noxious persons on board, must be brought in for judicial examination.” (Moore, Digest of International Law, vol. 7, p. 756.) This conclusion was reached notwithstanding the fact that Mason and Slidell were purposing to carry out unneutral designs in or from British territory—the ground first advanced by Great Britain to justify the removal of the persons taken out of the S. S. China, and subsequently reasserted in the memorandum under consideration.

That this was the meaning attached to the Trent case by the British Government is shown by the fact that in the “Manual of Naval Prize Law,” prepared in 1866 by Doctor Lushington, and adopted by the British Admiralty as a guide for commanders of British ships of war, it is stated that “the Commander will not be justified in taking out of a Vessel any Contraband Persons he may have found on board and then allowing the Vessel to proceed; his duty is to detain the Vessel and send her in for Adjudication, together with the Contraband Persons on board.” Contraband persons are defined in the same manual as the following persons having a “hostile destination”: “Soldiers or Sailors in the service of the Enemy; Officers, whether Military or Civil, sent out on the public service of the Enemy at the public expense of the Enemy. The number of such officers is immaterial.” An exception was made of “Ambassadors from the Enemy to a Neutral State.”

The two proclamations of neutrality issued in 1870 by the British Government during the Franco-Prussian war both contained a warning to British subjects against doing “any acts in derogation of their duty as subjects of a neutral sovereign, in a war between other Sovereigns, or in violation or contravention of the law of nations in that behalf, as more especially by carrying officers, soldiers, despatches, ... for the use or service of either of said Sovereigns” on pain of being “justly liable to hostile capture and to the penalties denounced by the law of nations in that behalf,” and incurring “our high displeasure by such misconduct.”

Moreover, in Holland’s Manual of Naval Prize Law, of 1888, “Issued by authority of the Lords Commissioners of the Admiralty,” commanders are instructed, in paragraphs 88 and 89, to detain any neutral ship used as a “Transport for the carriage of soldiers or sailors by the Enemy . . . or even of Civil Officials sent out on the public service of the Enemy, and at the public expense,” and in paragraph 94 it is stated, “The Commander will not be justified in taking out of a Vessel any Enemy Persons he may have found on board, and then allowing the Vessel to proceed; his duty is to detain the Vessel and send her in for Adjudication, together with the Persons on board.”

In the neutrality proclamations of the British Government issued at the opening of the Chino-Japanese war of 1894 and the American and Spanish war of 1898, British subjects were warned of the penalty of “hostile capture” of their ships for carrying “officers, soldiers, despatches,” etc.—in terms identical with those used in neutrality proclamation of 1870, which is quoted in a preceding paragraph.

During the Boer war of 1900 the German steamers Bundesrath, General, and Herzog were seized on the ground, among others, of having on board passengers believed to be destined for service in the Boer Army, and were brought in with the apparent intention, as shown by the correspondence regarding the Bundesrath, of submitting the vessels to a judicial examination. These vessels, however, were subsequently released when it was ascertained that the suspicions of the British authorities were unfounded. The British position was again exemplified in the neutrality proclamation issued during the Russo-Japanese war of 1904, by which British ship owners were warned as in prior wars regarding the liability of ships to “hostile capture” for carriage of officers, soldiers, or despatches.

The same position was maintained by the British delegates at the Hague Conference of 1907. In the discussion of Article 12 of Convention X, allowing belligerent warships to demand neutral merchantmen to surrender combatants picked up after a naval battle, the British delegates made the statement that “the British Government can not acquiesce in the opinion expressed in the report as to the rights of a belligerent ship of war to require the surrender of wounded, sick, and shipwrecked combatants on board a merchant vessel sailing under a neutral flag. Failing a special convention, his Government considers that the recognition of such a right can not be based on the existing principles of international law.” As a concession Great Britain agreed to Article 12, but she sought to restrict the concession within the narrowest limits by a reservation declaring that His Majesty’s Government understands Article 12 “to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part.” (Westlake, vol. 2, p. 277; Higgins, p. 389; Cobbett, vol. 2, p. 123.) The inference is clear that the right to remove even combatants from neutral vessels in any other case was not admitted.

In the following year, 1908, preparatory to calling the Naval Conference in London, Sir Edward Grey sent to His Majesty’s representatives at European capitals and at Washington and Tokyo for submission unofficially to the Governments at those capitals a memorandum “setting out the views of His Majesty’s Government founded upon the decisions in the British Courts, as to the rules of international law on the points . . . proposed for discussion at the forthcoming Naval Conference at London.” (Correspondence and Documents respecting the International Naval Conference held in London December, 1908-February, 1909, Misc. No. 4, 1909, p. 2.) From this memorandum it appears that it has never been the practice to remove persons, military or otherwise, from neutral ships on the high seas without bringing the ship itself into port for adjudication. It is true that Sir Edward added in his instructions to His Majesty’s representatives that this memorandum was “not to be taken as an official code, since some of the rules and dicta are of ancient date, and their application may be difficult in view of modern conditions,” but the British views on the question under discussion were subsequently confirmed by Sir Edward Grey in his instructions to the British delegates to the London Naval Conference, in which he says, “. . . the conveyance of military detachments, or of individual officers or civil agents of the enemy have generally been admitted to render the ship liable to seizure and possibly to confiscation, . . . the choice would seem to lie between the inconvenience and loss inevitably resulting from a large and valuable neutral ship being brought in for trial before a prize court and the responsibility of acquiescing in the removal from under the neutral flag, on the demand of a belligerent man of war, of persons whose contraband character it might or might not be possible to establish to the satisfaction of the captain of the neutral vessel.” (Sir Edward Grey to Lord Desart, December 1, 1908. Ibid., p. 20.) Moreover, Mr. Eyre Crowe, one of the British delegates to the London Conference, in the course of the discussion, clearly stated the British position up to that time. He said: “Great Britain has never been willing to admit the principle that a person placed under the protection of a neutral flag should be surrendered in this manner; she does not decline, however, to have this case treated as one of the questions of contraband by analogy.” (Proceedings of the International Naval Conference, Misc No. 5, 1909, p. 165.)

The foregoing outlines the practice and views of the British Government from 1718 up to the London Naval Conference—the period covered by the special treaties on which Great Britain appears now to rely as confirming a contrary practice. It will be observed that Great Britain has always treated the subject of the transportation of noxious persons as analogous in respect to the measures to be applied to the carriage of contraband. No decision of an English court and no English jurist has discussed the question except with reference to the penalty attaching to the ship making the illegal transport. It is doubtful if any intimation can be found prior to the Declaration of London by any English authority to sustain the contention that the captor may remove such persons from a neutral ship on the high seas without bringing the vessel before a prize court for adjudication..

The practice of the United States has been essentially the same as that of Great Britain, and the American treaties already cited have been regarded as exceptions to that practice, because they have, in fact, been contrary to it. For example, in 1778 the Continental Congress proclaimed that American commanders should “on no pretense whatever presume to take or seize any ships or vessels belonging to the subjects of princes or powers in alliance with these United States, except they are employed in carrying contraband goods or soldiers to our enemies, and in such case that they conform to the stipulations contained in treaties subsisting between such princes or powers and these states.” (Journals of the Continental Congress, vol. XI, p. 486.) It is true that Secretary Madison, in 1804 and 1805, while contending for the insertion of a stipulation in a treaty with Great Britain to the effect that no person should be removed from a ship on the high seas “unless such person be at the time in the military service of an enemy,” referred to this as “an exception which we admit to come within the law of nations on the subject of contraband of war.” (State Papers, Foreign Relations, vol. III, p. 81.) But this statement had reference to a proposed treaty provision which was later modified by omitting the exception, which was aimed to avoid the illegal and vexatious impressment of seamen on American vessels, and which was modeled, in respect of the exception, after treaties between Great Britain and other powers—treaties, as Lord Harrowby said at the time in objection to this treaty, which “had been paid for by the powers to whom the concession had been made by stipulations which secured the interests of Great Britain: it was made before the American policy had been settled, and was contrary to all subsequent practice and views of this Government; and it was in effect denied by Secretary Seward in 1861-2 (which denial was acquiesced in by Great Britain) to constitute the proper rule of international law in such cases.

The British prize cases mentioned above, in which ships carrying noxious persons were brought in for adjudication, have been referred to with approval by American courts, as shown in the case of the Commercen, decided by the United States Supreme Court in 1816. (1 Wheaton 382; 3 U. S. Sup. Ct. Rep. 597.) These decisions have also been followed by the Executive Branch of the United States Government, as indicated in the case of the British mail steamer Teviot in 1847. This vessel had brought from Habana to Vera Cruz, then in possession of the United States, a “hostile Mexican general,” former President Paredes of Mexico. In respect to this incident, Mr. Buchanan, then Secretary of State, instructed the American Minister at London to state to Lord Palmerston that “A neutral vessel which carries a Mexican officer of high military rank to Mexico, for the purpose of taking part in hostilities against our country, is liable to confiscation, according to the opinion of Sir William Scott, in the case of The Orozembo . . . , and this even although her captain and officers were ignorant that they had such a person on board.” Lord Palmerston answered that the British Government, after investigation, had informed the company to which the Teviot belonged “that the directors are bound to testify, in a marked manner, their disapproval of Captain May’s conduct in having thus abused the indulgence afforded to the company’s vessels by the Government of the United States.” He added that the company indicated that Captain May would be suspended from his command. (Moore, Digest of International Law, vol. 7, p. 753.)

The position of the United States in the Trent affair is well known, but it may be permissible to refer to the definite statement of the American attitude made by Secretary Seward in his note of December 26, 1861, to Lord Lyons: “If there be no judicial remedy, the result is that the question must be determined by the captor himself on the deck of the prize vessel. Very grave objections arise against such a course. The captor is armed, the vessel is unarmed. The captor is interested, prejudiced, and perhaps violent; the neutral, if truly neutral, is disinterested, subdued, and helpless. The tribunal is irresponsible, while its judgment is carried into instant execution. The captured party is compelled to submit, though bound by no legal, moral, or treaty obligation to acquiesce. Reparation is distant and problematical, and depends at last on the justice, magnanimity, or weakness of the state in whose behalf and by whose authority the capture was made. . . . I think all unprejudiced minds will agree that imperfect as the present judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor and relying upon diplomatic debates to review his decision.” (British and Foreign State Papers, vol. 55, p. 627.)

The disadvantage of such a summary procedure is well illustrated in the case of the S. S. China, in which the 23 men admitted by Great Britain to have been wrongfully seized were, though entitled to their liberty, held as prisoners of war for over seven and a half months before their release was effected. The same position was announced during the War of 1870 between France and Prussia by President Grant in his Proclamation of Neutrality. He declared that American citizens could not “transport soldiers and officers of either . . . without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf.” (16 U. S. Stat. L. 1132.)

In the American-Spanish war of 1898 the United States acted on this understanding of the Trent case. Instructions to blockading vessels and cruisers issued by the Navy Department in that war contained the provision that “A neutral vessel in the service of the enemy, in the transportation of troops: or military persons, is liable to seizure.” (Moore, Digest of International Law, vol. 7, p. 755.) The same rule was followed by Spain. (Official Gazette, April 25, 1898.) Moreover, the United States Naval War Code of 1900, which was referred to in the instructions of the Government of the United States to its delegates to the Second Hague Conference and the London Naval Conference as expressing, in general, the views of the United States Government, provides that “If the papers show ... an offense in respect of blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search.” (Naval War College, International Law Discussions, 1903.)

It is therefore obvious that, aside from specific treaty provisions to the contrary, the United States has uniformly, in announcement and practice, maintained the same doctrine as Great Britain; namely, that no persons may be removed from beneath a neutral flag on the high seas without bringing the vessel before a prize court. Undoubtedly this position was held by both countries up to the date of the Naval Conference at London. Even the convention signed at this conference conforms to this doctrine with the exception of Article 47, which grants the removal of persons “embodied in the armed forces of the enemy” without making prize of the vessel, when the master, owner, or charterer is without guilty knowledge of the transaction. But Article 47 is an innovation in the prior practice of Great Britain and the United States—a reversion to the conventional rule of the early treaties. This is demonstrated by the report of March 1, 1909, of the British delegates to the conference. They stated: “No such general right has hitherto been admitted by this country, although what may be considered to be an exception was recently made in Article 12 of the [Hague] convention for the adaptation of the principles of the Geneva convention to maritime war,” (Correspondence and Documents respecting the International Naval Conference, Misc. No. 4, 1909, p. 93.) Sir Edward Grey also appeared to regard Article 47 as an innovation, for in a letter of November 26, 1910, to the Glasgow Chamber of Commerce, he wrote: “A new rule is no doubt contained in Article 47. . . . The words [of Article 47] must in fact be strictly construed as applying solely to individuals who have actually joined, and are serving with, the corps to which they belong. Such individuals, who are not likely to be found in any considerable number on board neutral vessels on the high seas, are, under the existing rules, classed as analogues of contraband, and their presence on board such vessels renders the latter liable to seizure by a belligerent, with all the consequences of loss and hardship for owners and innocent passengers.” (Correspondence respecting the Declaration of London, Misc. No. 4, 1910, p. 11.)

The American delegates to the London Naval Conference also perceived an innovation in Article 47. This article, says Admiral Stockton, one of the American delegates, was not agreed to by the United States until the last moment, but was assented to finally “as a concession not in accord with our practice, but in order to allow a harmonious conclusion,” and in the interest of relieving large vessels from the inconvenience of being brought into port for adjudication, which would undoubtedly release them as being without conscious guilt. (The American Journal of International Law, vol. 3, p. 611.)

From the foregoing account the conclusion seems inevitable that when the British Government state in their memorandum under acknowledgment that “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 court proceedings, was recognized by the Declaration of London,” and that “The result would have been, had the Declaration been ratified, to confirm the old practice,” the British Government are making statements which must be regarded as at variance with the facts, for the doctrine stated was agreed upon for the first time by the conference, and, as expressly stated by the British delegates and by Sir Edward Grey, was regarded as an innovation in international law and a decided departure from the British practice and all prior British views of the law.

As the seamen in question were taken out of American vessels summarily and without bringing the vessels before a prize court in order that the rightfulness of the action of the British authorities in thus invading American jurisdiction might be determined, the United States holds that the men thus seized are wrongfully held in British custody, and should be immediately released.

Secondly. Assuming, but only for the sake of discussion, that a practice existed, as the British Government suggest, of removing “enemy subjects employed in the service of an enemy state” from neutral ships without instituting prize proceedings against the vessels, it is demonstrable that such a practice was restricted to a single specific class of persons, to which enemy reservists and enemy agents or plotters do not belong. Consider the treaties already cited. Practically all of them use some term (troupes, soldats, militaires, gens de guerre) meaning military persons, and most of them further limit the terms used by adding the phrase, “actually in the service of the enemy.” For example, the treaties between France and the Netherlands of 1678, and between France, Great Britain, Spain, and Holland of 1697 limited this exceptional class of persons to “gens de guerre, et effectivement en service des dits ennemis” and the treaty between France and Great Britain of 1713 limited the class of persons to “gens de guerre actuellement au service des dits ennemis.” As to such treaties, the French Government stated in 1861, with reference to the Trent case, that they “define plainly the character of those who can be seized upon by belligerents.” (British and Foreign State Papers, vol. 55, p. 610—Minister of Foreign Affairs to French Minister at Washington, December 3, 1861.) The British declarations of war of the eighteenth century already mentioned refer to no noxious persons but “soldiers,” and not one of the decisions of the British prize courts cited above (1802 to 1808), including the case of the Creta (1855), was based on the transportation of any persons other than officers or soldiers. The British proclamations of neutrality of 1861, 1870, 1894, 1898, and 1904, refer to officers and soldiers but to no other persons. Notwithstanding the warning in the British Proclamation of Neutrality in the Franco-Prussian war, British ships transported German reservists from the United States to Europe without being held to have violated the rules as to unneutral service. It is true that the prize manuals of 1866 and 1888 added civil officers who are “sent out on the public service of the Enemy at the public expense of the Enemy,” but this addition is based on the dictum of Sir William Scott in the case of The Orozemoo—a dictum which, as specifically pointed out by Lord Russell in the Trent case, referred only to civil officers en route from the enemy’s country to one of the enemy’s colonies.

The United States has similarly restricted the class of contraband persons. The five treaties entered into by the United States with European countries between 1778 and 1800 (France, 1778, 1800; Sweden, 1783; Prussia, 1785; Spain, 1795), referred only to “soldiers in the actual service of the enemy.” Similarly, the class was limited to “officers or soldiers in the actual service of the enemy” in treaties with Colombia (1824, 1846), Central America (1825), Brazil (1828), Mexico (1831), Chile (1832), Venezuela (1836), Ecuador (1839), Bolivia (1858), Haiti (1864), Dominican Republic (1867), Salvador (1870), Italy (1871), and Peru (1887). The expressions of Secretary Madison (1804-5), and Secretary Buchanan (1847), quoted above, had reference only to persons in the military service of the enemy. Likewise, as we have seen, the proclamations of neutrality of 1870, and the instructions to American cruisers in 1898, mentioned only “soldiers and officers” and “troops or military persons” respectively.

Judging from these examples of British and American announcements and practice, it is clearly manifest that neither country ever considered any individuals as liable to apprehension (regardless of the treatment of the ship) except soldiers, officers, and other military persons in the actual service of the enemy, with the possible addition of civil officers “sent out on the public service of the enemy and at the public expense of the enemy,” notwithstanding the fact that reservists have been known and recognized in military systems of Europe at least since 1870. It is not, therefore, believed possible to maintain successfully and fairly that this proscribed class of individuals included or was intended to include “enemy reservists.”

Notwithstanding that both the United States and Great Britain regard the Declaration of London as inoperative in the present war, although the provisions in respect to unneutral service were in force by order in council when the men were seized from the Henry S. , the Ausable, and the Marcus L. Urann, it may not be improper to make the following brief observations in regard to the meaning of Article 47, which is obvious both from its terms and from the accompanying official comment.

The phrase in Article 47, “embodied in the armed forces of the enemy,” ought, in the opinion of this Government, to be regarded as excluding reservists, for the reason that the same phrase in Article 45 is so interpreted by M. Renault in his official report, which His Majesty’s Government have formally recognized as a correct commentary on the declaration (order in council, August 20, 1914), and that he points out no distinction between the two identical phrases used in these two articles, but, on the contrary, in the discussion of Article 47 he consistently refers to “soldiers or sailors” and “active enemies,” indicating that he had in mind actual combatants of the enemy state. The same view was taken, as we have seen, by Sir Edward Grey in his letter of November 26, 1910, to the Glasgow Chamber of Commerce, in which he said Article 47 “must be strictly construed as applying solely to individuals who have actually joined and are serving with the corps to which they belong.” If further confirmation of the innovation in and meaning of Article 47 is needed, reference may be made to the writings of such learned British jurists as Bernard, Westlake, Oppenheim, and Cobbett. Mr. Cobbett states: “This right [granted in Article 47], it will be seen, is confined to persons actually ‘embodied in the armed forces of the enemy,’ and would not extend to persons in civil employment or merely on their way to take up military service. Nevertheless it constitutes a serious encroachment on the British position; although not without some justification, from the point of view of principle and convenience. . . . But it would manifestly be an international delinquency of a serious kind for a belligerent to exercise the right except on clear proof of the military character of the person seized.” (Pitt Cobbett, Gases on International Law, vol. II, p. 459.)

Moreover, it will be recalled that “reservists” were not included within the classes of contraband treated in the memoranda submitted at the opening of the conference by each nation as expressing its view of the law, and they cannot fairly be brought within the categories of contraband set forth in those memoranda. This is proof that prior to the London conference, “reservists” were not regarded by the chief maritime nations of the world as contraband, whose transport was forbidden to neutral ships. When, therefore, the British Government state that “before the London Naval Conference it would never have been argued that reservists . . . were not in the military service of the belligerents concerned,” they are, though doubtlessly through error, making an assertion, which is contrary to the views and practices of the governments prior to the conference. And when the British Government endeavor to justify their action by laying down the broad principle “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,” they are advancing a doctrine manifestly in their own interest in the present war, unless they include all British subjects qualified to enlist in the armed forces of His Majesty, and in the face of unbroken British practice and all British declarations in prior wars—a doctrine which; this Government believes is not warranted by even the most modern conceptions of international law, which have not yet received the sanction of general consent.

There remains but one further point under this heading to which reference should be made. It is the inconsistency which the British Government endeavor to expose in the position of the United States that reservists are immune from seizure at sea because not incorporated in the armed forces of the enemy, while they are regarded as “enlisted” men within the meaning of the Enlistment Act of the United States. This is a technical distinction, based on the operation of the military service law of Germany, by which reservists remain enrolled on the army lists and hence must be regarded as already “enlisted” by the very terms of the Enlistment Act. But being enrolled on the army lists is by no means the same as being incorporated in the army, for reservists are not, it is understood, in the active or actual service until after they have been accepted for service. When they present themselves on call to their regiment, they may not be accepted owing to physical condition, or other cause of exemption from service. Before acceptance, therefore, they can not be regarded as persons who form an integral part of the fighting forces of a belligerent, or, in the words of Sir Edward Grey, “who have actually joined and are serving with the corps to which they belong.”

It appears to the Government of the United States, therefore, that it is entitled both by precedent and in justice and reason to hold that the seamen removed from the American vessels named, who have been seized merely because they were German reservists or German subjects, are not persons in the military service of Germany, and that they were therefore wrongfully arrested on American vessels even under the principles contended for by Great Britain.

Thirdly. As has been demonstrated, both Great Britain and the United States have always treated the transportation of noxious persons as analogous to the carriage of contraband. This is shown by some of the early treaties already cited, by the declarations of war and proclamations of neutrality quoted above, and by the British prize manuals. This position was announced by Lord Russell in the Trent case, and recently, as we have observed, at the London Naval Conference by Mr. Eyre Crowe, one of the British delegates. It is not necessary to adduce proofs of a fact so well known and recognized, but it may perhaps be allowable to quote from Lord Russell’s discussion of this point in the Trent case. He said: “. . . if the real terminus of the voyage be bona fide in a neutral territory, no English, nor indeed, as Her Majesty’s Government believe, any American authority can be found which has ever given countenance to the doctrine that either men or despatches can be subject, during such a voyage, and on board such a neutral vessel, to belligerent capture as contraband of war. Her Majesty’s Government regard such a doctrine as wholly irreconcilable with the true principles of maritime law; and certainly with those principles as they have been understood in the courts of this country. . . . For instance, in the present war, according to Mr. Seward’s doctrine, any packet ship carrying a Confederate Agent from Dover to Calais, or from Calais to Dover, might be captured and carried to New York. ... In view, therefore, of the erroneous principles asserted by Mr. Seward, and the consequences they involve, Her Majesty’s Government think it necessary to declare that they would not acquiesce in the capture of any British merchant ship in circumstances similar to those of the Trent, and the fact of its being brought before a Prize Court, though it would alter the character, would not diminish the gravity of the offence against the law of nations which would thereby be committed.” (British and Foreign State Papers, vol. 55, pp. 656, 657.)

In the cases of which the United States complains, all of the vessels were bound from neutral ports to neutral ports: the Ausable from the United States to Denmark, the Henry S. from one port in the Philippine Islands to another port in the same islands, and the Marcus L. Urann from Norfolk, Virginia, to Pernambuco, Brazil. It can not be contended, therefore, that the men seized from these ships have a contraband character, unless, in addition to their military status, it is first shown that they have also an actual hostile destination. The Government of the United States is unaware of any evidence which has been adduced showing such a destination, even indirectly, and it must therefore conclude that these arrests have been made by Great Britain regardless of her prior practice and the explicit statements of Lord Russell as to the legal principles involved.

Fourthly. The United States and Great Britain have been singularly in accord until the present day in the practice of their Governments, the declaration of their officials, and the utterance of their jurists upon this subject, particularly as to the procedure to be followed, the penalties to be imposed, and the class of enemy persons to be apprehended. This attitude is based on principles of justice and equity as well as upon the rules of law and practice. Great Britain now contends, it is believed for the first time, that the existing practice is based on the principle 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.” If this be so, which it is not necessary now to deny or affirm, the United States holds that the application of this principle is limited, as it is believed has been demonstrated, by the requirement that vessels carrying noxious persons should be captured as prize of war, and that such noxious persons can not be taken out of the ship unless they are military persons in the actual service of the enemy (which the United States does not admit to be the rule of practice), and they must be, like contraband, en route to an enemy destination. Such limitations, having received generally the recognition of nations, are presumably founded in some cause which they believe to be just and equitable. To the Government of the United States the limitations appear to arise from another principle, which conflicts with that now relied upon by Great Britain, namely, that a merchant ship on the high seas is to be regarded as a part of the territory and under the sole jurisdiction of the country whose flag she flies, and that, therefore, no other country has any more right to invade a merchant vessel on the high seas or one wrongfully brought into a belligerent port than to violate the soil of the vessel’s country. This principle was stated by Justice Hunt, of the United States Supreme Court, in the case of Crapo v. Kelley (1872), with reference to Mason and Slidell: “They Were not British subjects, and their return could only have been demanded for the reason that they had been torn from British soil and the sanctity of British soil as represented by a British ship had been violated. Citizenship or residence had no influence upon the question.” (16 Wallace 610, 631.) A contrary principle would, in fact, imply the same exclusive dominion over the ocean by a belligerent as it exercises within the limits of its territorial sovereignty, and would result in the denial of those common rights on the high seas and that equality of independent states which are corner stones of the law of nations. Any waiver of these rights, even in time of war, must be strictly construed and narrowly confined. It is far more unjust and dangerous to the world to destroy these fundamental principles than to uphold the principle contended for by Great Britain. Yet this would appear to be the only possible result if the British contention should prevail; for the British doctrine, if logically followed to its conclusion, would open the way to the removal of any person in the service of his country, whether a member of the reserves, a volunteer going home to enlist for the first time, a diplomatic or consular officer, civil officers of state, propagandists, secret-service agents, and others—the mere scope of the principle advanced stamps it as based wholly on the ground that the interest of a belligerent, however temporary or insignificant it may be, can be rightfully asserted without regard to the rights of neutrals or the prior views of the present contestants. The right to take men out of ships implies the right to search for them, which is a vexation of commerce. As the French Foreign Minister, M. Thouvenel, said with regard to the Trent case: “. . . at any moment the commerce and the navigation of third powers would have to suffer from their innocent and even their indirect relations with the one or the other of the belligerents. These last would no longer find themselves as having only the right to exact from the neutral entire impartiality and to interdict all intermeddling on his part in acts of hostility. They would impose on his freedom of commerce and navigation restrictions which modern international law has refused to admit as legitimate . . . .” (French Minister of Foreign Affairs to French Minister in Washington, December 3, 1861. War of the Rebellion: Official Records of the Union and Confederate Armies, p. 1117.)

It is precisely this conflict of principle and selfish interest which has led to the procedure contended for by the United States—taking the offending vessel into port for adjudication before a presumably impartial tribunal, so that the pretensions of belligerents may be checked and the rights of both parties may be exercised with moderation and reason. As has been often voiced by the officials of both the United States and Great Britain, the attempt of a naval officer to stand in the place of a prize court, and adjudicate, sword in hand, on his own initiative and authority, cuts at the root of friendly and equitable relations between belligerents and neutrals—in short, seizure without process of law (a procedure not allowed in respect of the most trivial article of property), is contrary to the ideas of modern civilization, a reversion to a practice which has long since been abandoned.

The foregoing considerations have demonstrated conclusively to the Government of the United States, and it is hoped satisfactorily to the British Government, that there has never been by either country any “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,” as Great Britain contends; that, assuming that there has been such a practice, which is not admitted, it has been strictly limited by treaty agreement (of which there is none between the United States and Great Britain) and by practice to a particular stated class of persons, which never has and can not now be regarded as including enemy reservists or revolutionary plotters; that this specific class of persons, regarded as analogues of contraband, has not been considered as subject to capture, together with the vessel, when destined to neutral countries; and that these limitations upon the apprehension of this class of persons are founded on justice and equity and a reasonable regard for the sanctity of merchant vessels under neutral flags on the high seas.

The Government of the United States, therefore, has no hesitation in denying the soundness of the British contentions and the validity of the conclusions set forth in the memorandum under acknowledgment.

In view of these considerations, the Government of the United States must insist on the prompt release of the four seamen taken out of the Henry S. , the Ausable, and the Marcus L. Urann, and the discontinuance of the removal of enemy subjects from American vessels on the high seas. The Government of the United States can not too earnestly press upon His Majesty’s Government the serious nature of the action of their authorities in sitting in judgment upon the military character of these men, violating the jurisdiction of the United States by taking them out of American ships and holding them for months as prisoners of war without recourse to judicial proceedings to test the validity of such arbitrary action. The Government of the United States can not submit to such treatment of American vessels and American seamen, and if it is the firm policy of His Majesty’s Government to continue to hold these men and to arrest others in similar circumstances, the Government of the United States will be compelled, much as it would regret to do so, to take such steps as may seem to it necessary to protect American vessels and seamen from further gross violations of their rights.

1. Ante, p. 653.