PROVISIONS OF HAGUE CONVENTION

355

right of search, seizure, and capture as ordinary freight or

express.

§ 535. Provisions of the Hague Convention regarding Postal Correspondence. The eleventh Hague convention of 1907 relative to certain restrictions on the exercise of the right of capture in maritime war contains the following provisions in regard to correspondence postale:

The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay.

The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port. (Art. I.)

The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible. (Art. II.)

These provisions embody in substance a proposal made by the German delegate, Herr Kriege, who in presenting it to the Conference said it was to be intended to be a sort of annex to the projet on contraband.1 So many private and commercial interests, he said, were dependent upon the regular service of the mails that it was indispensable that this service should be protected from the disturbances of maritime war. On the other hand, the benefit to belligerents from interference with the postal service was no longer in proportion to the injury which such control would inflict upon inoffensive commerce, for the reason that cable and telegraphic communication offered to belligerents a more rapid and certain means of communication.2 In short, the new and more rapid means of telegraphic communication had largely eliminated the danger from surreptitious use of the mails for the transmission of military information, and therefore belligerents would have little or nothing to gain from interfering with postal correspondence. During the discussion of the proposal Captain Otley, one of the British delegates, stated that the British delegation was prepared to accept

1 Actes et Documents, la Deuxième Conférence de la Paix, Vol. III, p. 173. Ibid., Vol. I, p. 266, and Vol. III, p. 861.

it, but he wished it to be understood that the inviolability of postal correspondence on board mail packets was not to be construed as implying that such boats were not liable to capture.1 Herr Kriege replied that this was his understanding of the intent of the proposal.2 Count Tornielli then asked whether the immunity contemplated by the German projet applied to parcelspost packages (colis postaux) as well as to postal correspondence (correspondence postale). Herr Kriege replied that the former were certainly excluded from the privileged treatment accorded to postal correspondence. The proposal was thereupon unanimously adopted. It would seem, therefore, from the text of article 1 of the convention and from the express understanding of those who participated in the discussion of it that the immunity which it was designed to establish was intended to apply only to mails which may be comprehended under the term correspondence, and not to parcels of merchandise, and this irrespective of whether they were sent as first-class matter or otherwise. Moreover, the benefit of the immunity was expressly withheld from all mails, whether correspondence or colis postaux, when destined to or proceeding from a blockaded port.* It is, of course, true that the British government had not proclaimed a technical blockade of Germany, and it could not lawfully blockade the ports of Holland and Scandinavia, but it contended that postal parcels of merchandise were subject to the same treatment as goods shipped by express or freight, and having established a blockade in fact, if not technically, of Germany, it could treat them as goods destined ultimately

1 Int. Law Topics, Naval War College, 1906, p. 3. 2 Actes et Documents, Vol. III, p. 1122.

Technically, of course, the convention was not binding since it was not ratified by several belligerents in the recent war (Bulgaria, Italy, Montenegro, Russia, Servia, and Turkey). In its correspondence with the British government the German foreign office recognized the binding force of the convention and invoked its provisions, but in its controversy with Norway regarding the seizure of mails by the German naval authorities, it argued that the convention, not having been ratified by all the belligerents, had no force. Brit. Parl. Paper, Misc., No. 28 (1916), Cd. 8322, p. 9.

4 The British prize court in the case of the Simla (May, 1915) so interpreted the meaning of the Hague convention. The mails condemned contained a quantity of elephant tusks, leopard and snake skins, and curios shipped by parcels post from German East Africa to various persons in the German Empire. Trehern, Brit. and Col. Prize Cases, Vol. I, p. 281.

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PROTEST OF AMERICAN GOVERNMENT

357

to a blockaded port,1 or treat them as contraband, and in either case apply the doctrine of ultimate destination to their carriage. § 536. Attitude of the American Government. As already stated, the American government agreed to the Anglo-French interpretation of the meaning of article 1 of the convention and did not, therefore, deny their right to seize and detain postal parcels containing contraband goods destined for the use of the enemy. It was also "inclined to the opinion" that the class of mail which included stocks, bonds, coupons, and similar securities was to be regarded as of the same nature as merchandise and therefore subject to the exercise of the same belligerent rights, and so were money orders, checks, drafts, notes, and other negotiable instruments.

What the American government did contest, however, was the manner in which the belligerent right of search and detention was exercised. It admitted that "genuine correspondence" was inviolable, but it did not admit that belligerents had a lawful right "to search other private sea-borne mails for any other purpose than to discover whether they contained articles of enemy ownership carried on belligerent vessels or articles of contraband transmitted under sealed cover as letter mail" except mail coming in and going out of effectively blockaded ports, of which there were none under the "so-called British blockade."

"The government of the United States," said the secretary of state in his memorandum of January 4, 1916, "is unable to admit the right of His Majesty's authorities forcibly to bring into port neutral vessels plying directly between American and neutral European ports without intention of touching at British ports and there to remove or censor mails carried by them. Modern practice generally recognizes that mails are not to be censored, confiscated, or destroyed on the high seas, even when carried by belligerent mail ships, and it seems certainly to follow that to bring mail ships within British jurisdiction for purposes of search and then to subject them to local regulations allowing a censorship of mails cannot be justified on the ground of national jurisdiction. In cases where neutral mail ships merely touch at British ports the government of the United States believes

1 Cf. Hershey, Amer. Jour. of Int. Law, Vol. X, p. 581, and Allin, Minnesota Law Review, April, 1917, p. 9. The British government did not in express terms attempt to justify the seizures complained of on the ground that the goods in question were destined ultimately to blockaded territory. Nevertheless, there are certain passages in Sir Edward Grey's note of January 1, 1916, to Count Wrangel, Swedish minister at London, which would indicate that the right of blockade was relied upon.

that His Majesty's authorities have no right in international law to remove the sealed mails or to censor them on board ship, since mails on such ships never rightfully come into the custody of the British mail service, which is entirely without responsibility for their transit or safety."

In a note of May 24 the American government, referring to assurances given by the allied governments in February previous that they would refrain from confiscating "on the high seas genuine correspondence, asserted that the allied governments proceeded to deny neutral governments the benefit of these assurances by forcibly taking their vessels into port and confiscating their mails there instead of on the high seas. There was no distinction, it was argued, between the seizure of mails at sea, which the allied governments had renounced, and their seizure of them upon vessels voluntarily or involuntarily in British ports. Forcing or inducing neutral vessels to enter British ports added nothing to the belligerent right in respect to the mails which they had on board. Such a procedure, it was declared, was arbitrary and contrary to the practice of the past, was a violation of the spirit of the assurances given on February 15, and was in violation of the eleventh Hague convention. Moreover, it had resulted "most disastrously" to citizens of the United States through the loss of important papers which could not be duplicated. Other losses and inconveniences had been sustained through delays in receiving shipping documents. Checks, drafts, money orders, and similar property had been lost or detained for weeks and even months, and international money-order lists for Germany after a lapse of months had not reached their destination, although the property belonged in the category of "genuine correspondence." 1

1 The American government contrasted the practice of the allies with that of the United States during the Civil war when Secretary Seward announced that "the public mails of any friendly or neutral power, duly certified or authenticated as such, shall not be searched nor opened, but will be put as speedily as may be convenient on the way to their designated destinations"; with the practice of France in 1870; with that of the United States in 1898; with that of Great Britain during the Boer war; with that of Japan and Russia in 1904, and even with that of Germany during the recent war. It may be seriously doubted, however, whether the practice in those wars would have differed materially from that of the Entente allies in the recent war had the circumstances been the same. In none of those wars was an attempt made on a large scale by one of the belligerents to use the postal service to carry on a trade which they could not have carried on through the ordinary channels of commerce. In fact, during the Civil war neutral mails were examined to determine the character of vessels suspected of being blockade

THE ANGLO-FRENCH DEFENCE

359 The "improper methods" thus employed by the British and French authorities in seizing and detaining mails passing between the United States and the enemies of Great Britain could no longer be tolerated; to submit to a "lawless practice" of this character would open the door to repeated violations of international law by the belligerent powers on the ground of military necessity, and the government of the United States confidently expected it to cease.1

§ 537. Views of the British and French Governments. The position of the British and French governments was set forth in a succession of notes and memoranda.2 Replying in the first place, to the American criticism in regard to the practice of taking mails into British ports for examination, the allied governments asserted that this was an absolute necessity, since it could not be done on board the vessels which carried them, without "involving a great deal of confusion, without causing serious delay to the mails, passengers and cargo and without great risk of error, loss or miscarriage." For these reasons mail bags must be taken into ports where there was a

runners. Cf., e.g., the case of the Adela, 6 Wall, 266. It hardly seems permissible to compare German practice during the recent war with the practice of the allies. The large number of mail steamers with their mails sunk by German cruisers and submarines did not indicate any particular solicitude on the part of Germany for the inviolability of the mails. The only reported case in which they took off the mails before destroying a ship was that in connection with the Floride. In this case the letter mail was forwarded to its destination without examination, but it may be safely assumed that if any military purpose would have been subserved by searching or detaining it, this would have been done. In fact, the parcels mail on board was sunk with the ship. This was an illegal act, because it should have been made the object of prize proceedings, as was done in the case of parcels mail seized as contraband by the British and French authorities.

1 The Dutch government protested against the measures of the allied governments quite as vigorously as did that of the United States, and especially against the seizure and censure of mails on neutral steamers in British ports or territorial waters. Like the United States government it did not contest the right of the British and French governments to seize parcels post mail containing contraband on board neutral ships on the high seas. The destruction of mails by the Germans in connection with the sinking of prizes was, it was added, a consequence of the destruction of the ships which bore them and constituted no justification for the measures of the allied governments. See the Dutch notes of January 12, 1916, March 31, 1916, and April 11, 1916, in 24 Rev. Gén. de Droit Int. Pub., 1917, Docs., pp. 79. As to the protests of the Norwegian government see its Orange Book issued in 1916, pp. 28 ff.

2 Most of the correspondence may be found in the white book, European War, No. 3, issued by the American government in August, 1916, pp. 145 ff.