_With the publication on April 6, 1915, of its note in reply to the
British Government's Order in Council, proclaiming a virtual blockade
against commerce to and from Germany--printed in the April, 1915, number
of_ THE NEW YORK TIMES CURRENT HISTORY_--the American Government rested
its case. The text of the note to Great Britain follows:_
WASHINGTON, March 30, 1915.
The Secretary of State to the American Ambassador at London:
You are instructed to deliver the following to his Majesty's Government
in reply to your Nos. 1,795 and 1,798 of March 15: The Government of the
United States has given careful consideration to the subjects treated in
the British notes of March 13 and March 15, and to the British Order in
Council of the latter date.
These communications contain matters of grave importance to neutral
nations. They appear to menace their rights of trade and intercourse,
not only with belligerents but also with one another. They call for
frank comment in order that misunderstandings may be avoided. The
Government of the United States deems it its duty, therefore, speaking
in the sincerest spirit of friendship, to make its own view and position
with regard to them unmistakably clear.
The Order in Council of the 15th of March would constitute, were its
provisions to be actually carried into effect as they stand, a practical
assertion of unlimited belligerent rights over neutral commerce within
the whole European area and an almost unqualified denial of the
sovereign rights of the nations now at peace.
This Government takes it for granted that there can be no question what
those rights are. A nation's sovereignty over its own ships and
citizens under its own flag on the high seas in time of peace is, of
course, unlimited, and that sovereignty suffers no diminution in time of
war, except in so far as the practice and consent of civilized nations
has limited it by the recognition of certain now clearly determined
rights which it is conceded may be exercised by nations which are at
war.
A belligerent nation has been conceded the right of visit and search,
and the right of capture and condemnation, if upon examination a neutral
vessel is found to be engaged in unneutral service or to be carrying
contraband of war intended for the enemy's Government or armed forces.
It has been conceded the right to establish and maintain a blockade of
an enemy's ports and coasts and to capture and condemn any vessel taken
in trying to break the blockade. It is even conceded the right to detain
and take to its own ports for judicial examination all vessels which it
suspects for substantial reasons to be engaged in unneutral or
contraband service and to condemn them if the suspicion is sustained.
But such rights, long clearly defined both in doctrine and practice,
have hitherto been held to be the only permissible exceptions to the
principle of universal equality of sovereignty on the high seas as
between belligerents and nations not engaged in war.
It is confidently assumed that his Majesty's Government will not deny
that it is a rule sanctioned by general practice that, even though a
blockade should exist and the doctrine of contraband as to unblockaded
territory be rigidly enforced, innocent shipments may be freely
transported to and from the United States through neutral countries to
belligerent territory, without being subject to the penalties of
contraband traffic or breach of blockade, much less to detention,
requisition, or confiscation.
Moreover, the rules of the Declaration of Paris of 1856--among them that
free ships make free goods--will hardly at this day be disputed by the
signatories of that solemn agreement.
His Majesty's Government, like the Government of the United States, have
often and explicitly held that these rights represent the best usage of
warfare in the dealings of belligerents with neutrals at sea. In this
connection I desire to direct attention to the opinion of the Chief
Justice of the United States in the case of the Peterhof, which arose
out of the civil war, and to the fact that that opinion was unanimously
sustained in the award of the Arbitration Commission of 1871, to which
the case was presented at the request of Great Britain. From that time
to the Declaration of London of 1909, adopted with modifications by the
Order in Council of the 23d of October last, these rights have not been
seriously questioned by the British Government. And no claim on the part
of Great Britain of any justification for interfering with the clear
rights of the United States and its citizens as neutrals could be
admitted. To admit it would be to assume an attitude of unneutrality
toward the present enemies of Great Britain, which would be obviously
inconsistent with the solemn obligations of this Government in the
present circumstances. And for Great Britain to make such a claim would
be for her to abandon and set at nought the principles for which she has
consistently and earnestly contended in other times and circumstances.
The note of his Majesty's principal Secretary of State for Foreign
Affairs, which accompanies the Order in Council, and which bears the
same date, notifies the Government of the United States of the
establishment of a blockade which is, if defined by the terms of the
Order in Council, to include all the coasts and ports of Germany and
every port of possible access to enemy territory. But the novel and
quite unprecedented feature of that blockade, if we are to assume it to
be properly so defined, is that it embraces many neutral ports and
coasts, bars access to them, and subjects all neutral ships seeking to
approach them to the same suspicion that would attach to them were they
bound for the ports of the enemies of Great Britain, and to unusual
risks and penalties.
It is manifest that such limitations, risks, and liabilities placed upon
the ships of a neutral power on the seas, beyond the right of visit and
search and the right to prevent the shipment of contraband already
referred to, are a distinct invasion of the sovereign rights of the
nation whose ships, trade, or commerce is interfered with.
The Government of the United States is, of course, not oblivious to the
great changes which have occurred in the conditions and means of naval
warfare since the rules hitherto governing legal blockade were
formulated. It might be ready to admit that the old form of "close"
blockade, with its cordon of ships in the immediate offing of the
blockaded ports, is no longer practicable in the face of an enemy
possessing the means and opportunity to make an effective defense by the
use of submarines, mines, and air craft; but it can hardly be maintained
that, whatever form of effective blockade may be made use of, it is
impossible to conform at least to the spirit and principles of the
established rules of war.
If the necessities of the case should seem to render it imperative that
the cordon of blockading vessels be extended across the approaches to
any neighboring neutral port or country, it would seem clear that it
would still be easily practicable to comply with the well-recognized and
reasonable prohibition of international law against the blockading of
neutral ports, by according free admission and exit to all lawful
traffic with neutral ports through the blockading cordon.
This traffic would, of course, include all outward-bound traffic from
the neutral country and all inward-bound traffic to the neutral country,
except contraband in transit to the enemy. Such procedure need not
conflict in any respect with the rights of the belligerent maintaining
the blockade, since the right would remain with the blockading vessels
to visit and search all ships either entering or leaving the neutral
territory which they were in fact, but not of right, investing.
The Government of the United States notes that in the Order in Council
his Majesty's Government give as their reason for entering upon a course
of action, which they are aware is without precedent in modern warfare,
the necessity they conceive themselves to have been placed under to
retaliate upon their enemies for measures of a similar nature, which the
latter have announced it their intention to adopt, and which they have
to some extent adopted, but the Government of the United States,
recalling the principles upon which his Majesty's Government have
hitherto been scrupulous to act, interprets this as merely a reason for
certain extraordinary activities on the part of his Majesty's naval
forces and not as an excuse for or prelude to any unlawful action.
If the course pursued by the present enemies of Great Britain should
prove to be in fact tainted by illegality and disregard of the
principles of war sanctioned by enlightened nations, it cannot be
supposed, and this Government does not for a moment suppose, that his
Majesty's Government would wish the same taint to attach to their own
actions or would cite such illegal acts as in any sense or degree a
justification for similar practices on their part in so far as they
affect neutral rights.
It is thus that the Government of the United States interprets the
language of the note of his Majesty's principal Secretary of State for
Foreign Affairs, which accompanies the copy of the Order in Council,
which was handed to the Ambassador of the United States by the
Government in London and by him transmitted to Washington.
This Government notes with gratification that "wide discretion is
afforded to the prize court in dealing with the trade of neutrals in
such a manner as may in the circumstances be deemed just, and that full
provision is made to facilitate claims by persons interested in any
goods placed in the custody of the Marshal of the prize court under the
order." That "the effect of the Order in Council is to confer certain
powers upon the executive officers of his Majesty's Government," and
that "the extent to which these powers will be actually exercised and
the degree of severity with which the measure of blockade authorized
will be put into operation are matters which will depend on the
administrative orders issued by the Government and the decisions of the
authorities especially charged with the duty of dealing with individual
ships and cargoes, according to the merits of each case."
This Government further notes with equal satisfaction the declaration of
the British Government that "the instructions to be issued by his
Majesty's Government to the fleet and to the customs officials and
executive committees concerned will impress upon them the duty of acting
with the utmost dispatch consistent with the object in view, and of
showing in every case such consideration for neutrals as may be
compatible with that object, which is succinctly stated, to establish a
blockade to prevent vessels from carrying goods for or coming from
Germany."
In view of these assurances formally given to this Government, it is
confidently expected that the extensive powers conferred by the Order in
Council on the executive officers of the Crown will be restricted by
orders issued by the Government, directing the exercise of their
discretionary powers in such a manner as to modify in practical
application those provisions of the Order in Council, which, if strictly
enforced, would violate neutral rights and interrupt legitimate trade.
Relying on the faithful performance of these voluntary assurances by his
Majesty's Government, the United States takes it for granted that the
approach of American merchantmen to neutral ports situated upon the long
line of coast affected by the Order in Council will not be interfered
with when it is known that they do not carry goods which are contraband
of war or goods destined to or proceeding from ports within the
belligerent territory affected.
The Government of the United States assumes with the greater confidence
that his Majesty's Government will thus adjust their practice to the
recognized rules of international law because it is manifest that the
British Government have adopted an extraordinary method of "stopping
cargoes destined for or coming from the enemy's territory," which, owing
to the existence of unusual conditions in modern warfare at sea, it will
be difficult to restrict to the limits which have been heretofore
required by the law of nations. Though the area of operations is
confined to "European waters, including the Mediterranean," so great an
area of the high seas is covered and the cordon of ships is so distant
from the territory affected that neutral vessels must necessarily pass
through the blockading force in order to reach important neutral ports
which Great Britain as a belligerent has not the legal right to blockade
and which, therefore, it is presumed she has no intention of claiming to
blockade.
The Scandinavian and Danish ports, for example, are open to American
trade. They are also free, so far as the actual enforcement of the Order
in Council is concerned, to carry on trade with German Baltic ports,
although it is an essential element of blockade that it bear with equal
severity upon all neutrals.
This Government, therefore, infers that the commanders of his Majesty's
ships of war, engaged in maintaining the so-called blockade, will be
instructed to avoid an enforcement of the proposed measures of
non-intercourse in such a way as to impose restrictions upon neutral
trade more burdensome than those which have been regarded as inevitable,
when the ports of a belligerent are actually blockaded by the ships of
its enemy.
The possibilities of serious interruption of American trade under the
Order in Council are so many, and the methods proposed are so unusual,
and seem liable to constitute so great an impediment and embarrassment
to neutral commerce, that the Government of the United States, if the
Order in Council is strictly enforced, apprehends many interferences
with its legitimate trade which will impose upon his Majesty's
Government heavy responsibilities for acts of the British authorities
clearly subversive of the rights of neutral nations on the high seas. It
is, therefore, expected that the Majesty's Government, having considered
these possibilities, will take the steps necessary to avoid them, and,
in the event that they should unhappily occur, will be prepared to make
full reparation for every act which, under the rules of international
law, constitutes a violation of neutral rights.
As stated in its communication of Oct. 22, 1914, "this Government will
insist that the rights and duties of the United States and its citizens
in the present war be defined by the existing rules of international law
and the treaties of the United States irrespective of the provisions of
the Declaration of London, and that this Government reserves to itself
the right to enter a protest or demand in each case, in which those
rights and duties so defined are violated or their free exercise
interfered with by the authorities of the British Government."
In conclusion you will reiterate to his Majesty's Government that this
statement of the view of the Government of the United States is made in
the most friendly spirit, and in accordance with the uniform candor
which has characterized the relations of the two Governments in the
past, and which has been in large measure the foundation of the peace
and amity existing between the two nationals without interruption for a
century.