with shall be thereafter subject to the rules of the declaration governing trade to enemy's territory." The Acting Secretary observed that this order in council would be based on a new principle. The "excuse "would be that, as the Declaration of London failed to provide for such an exceptional condition as existed, a belligerent had " right to give a reasonable interpretation to the rules of the declaration so that they will not leave him helpless to prevent an enemy from obtaining supplies for his military forces."

a

President Wilson cabled Ambassador Page on this same date, pointing out that the above-mentioned cable indicated how completely all the British Government sought could be accomplished without friction with the United States.14 He also referred to the Ambassador's statement of the previous day that he considered academic the position of the United States in the controversy with Great Britain.15 The President asked him not to regard the American position as "merely academic ", and urged him to use his utmost efforts to effect an understanding which would "put the whole case in an unimpeachable form ".

WITHDRAWAL OF AMERICAN SUGGESTION

Ambassador Page presented to the British Government the plan contained in the Acting Secretary's telegram of October 16, and soon reported that the British Government would "not accept Declaration of London without amendment." 16

The Ambassador was instructed on October 22 that, as the British Government could not accept the entire Declaration of London, the United States felt obliged to withdraw the suggestion that the declaration be adopted as a temporary code of naval warfare." Therefore, the Government would insist that American rights and duties during the war should be defined by existing rules of international law and treaties of the United States, irrespective of the provisions of the declaration. Furthermore, the United States reserved the right to enter a protest or demand whenever those rights and duties were violated "or their free exercise interfered with."

14 Document 24. 15 Document 21. 14 Document 25. 17 Document 26.

suffere

British

investi

The A

CHAPTER II

TRADE RESTRICTIONS OF THE ALLIES

BRITISH ORDER IN COUNCIL, OCTOBER 29, 1914

The British order in council of August 20, 1914, was replaced on October 29 by a new order in council which provided that during the war the Declaration of London should be adopted by the British Government," subject to the exclusion of the lists of contraband and non-contraband, and to the modifications hereinafter set out." The principal modifications were:

1. The destination of conditional contraband for the use of the armed forces or of a government department of an enemy state should be presumed if the goods were consigned to or for an agent of an enemy state.

2. Conditional contraband should be liable to capture on board a vessel bound for a neutral port (a) if the goods were consigned "to order", (b) if the ship's papers did not show the consignee of the goods, or (c) if the papers showed a consignee in enemy territory. It should "lie upon the owners of the goods to prove that their destination was innocent."

3. When one of the British Principal Secretaries of State was convinced that an enemy was obtaining supplies for its armed forces from or through a neutral country, he might, by notification in the London Gazette, direct that a vessel which was carrying conditional contraband to a port in that country should not be immune from capture.

DETENTION OF AMERICAN SHIPS AND CARGOES, 1914

Although the United States did not enter a general protest against the British order in council of October 29, several statements were made during the last months of 1914 in regard to trade interference resulting from this and other British measures. Most of the statements related to the seizure and detention for various reasons of American vessels and cargoes destined to neutral European ports. Acting Secretary of State Lansing cabled Ambassador Page, on October 31, that the commerce of the United States had " already

'Document 32.

10

suffered serious injury as a result of the detention and seizure by British authorities of American vessels and cargoes in cases where investigation has failed to show attempts to carry on illegal trade." The Acting Secretary did not question the belligerent right of visit and search to determine whether a neutral merchant vessel was carrying contraband of war or performing unneutral services. However, if the search disclosed no offense, the vessel should be promptly released.

One week later the Acting Secretary stated in a note to the British Ambassador at Washington that a belligerent in exercising the right of visit and search should make the search on the high seas at the time of the visit. Furthermore, the conclusion of the search should rest upon evidence found on the vessel under investigation, not upon circumstances ascertained from outside sources. If a belligerent should take vessels into custody and send them into port without prima facie evidence to impress the cargo with the character of absolute or conditional contraband, he believed there would be a basis for a legal claim for damages against the belligerent. He considered contrary to international law the interruption of voyages in this manner, and reserved the right to hold the British Government "responsible in damages."

Secretary of State Bryan expressed views on this subject in a cable of November 10 to Ambassador Page. The Secretary considered unjustifiable the detention of vessels until the destination of cargoes had been ascertained from sources outside of the ship's papers. Furthermore, he held that it was contrary to international law for a belligerent to detain a cargo of conditional contraband on the ground that it was consigned to order of the shipper. If conditional contraband was subject to detention and prize proceedings when so consigned, he believed there would be no distinction between conditional and absolute contraband.

On December 3, Secretary Bryan cabled Ambassador Page that the course of Great Britain in taking neutral vessels into British ports and detaining them for examination, including the unloading of cargoes in search of evidence of their contraband character, constituted wrongful and unjustifiable detention". Shipments to neutral countries could not "rightfully" be seized as contraband in the absence of facts indicating that they were actually destined for belligerents. Furthermore, he denied the legality of British action in seizing American shipments on neutral vessels to neutral

2 Document 30.

* Document 33.

Document 35.
Document 36.

125055-36-vol. 11-3

countries on the ground that the shipments were consigned to order of shippers.

The most complete American statement of 1914 in regard to the frequent seizures and detentions of American cargoes destined to neutral European ports, was made by Secretary Bryan on December 26. In a cable to Ambassador Page he stated that although nearly five months had passed since the war began, the British Government "have not materially changed their policy and do not treat less rigorously ships and cargoes passing between neutral ports in the peaceful pursuit of lawful commerce".

Secretary Bryan held that commerce between neutral countries should not be interfered with by belligerents unless the interference was "manifestly an imperative necessity to protect their national safety", and then only to the extent that it was a necessity. He believed that British policy toward neutral ships and cargoes exceeded manifest necessity and constituted restrictions upon the rights of American citizens which were "not justified by the rules of international law or required under the principle of selfpreservation ".

The Secretary stated that he did not intend to discuss the propriety of including certain articles in the lists of absolute and conditional contraband. The inclusion of some of these seemed to him open to objection, but the chief ground of complaint was the treatment of cargoes of both classes of articles when bound to neutral ports. Contraband articles shipped from the United States and consigned to neutral countries had been unjustly detained on the ground that the countries to which they were destined had not prohibited the exportation of such articles. In the case of conditional contraband, a number of American cargoes which had been seized consisted of foodstuffs destined for neutral territory. The Secretary believed that British authorities had made these seizures and detentions without possessing facts which warranted a reasonable belief that the shipments had in reality a belligerent destination. He held that mere suspicion was not evidence and that doubts should be resolved in favor of neutral commerce.

The presumption of enemy destination for a consignment "to order" of articles listed as conditional contraband and shipped to a neutral port, appeared to Secretary Bryan directly contrary to the following doctrine previously held by Great Britain: "Foodstuffs, though having a hostile destination, can be considered as contraband of war only if they are for the enemy forces; it is not sufficient that they are capable of being so used, it must be shown that this was in fact their destination at the time of their seizure." He expressed

'Document 40.

accord with this statement on conditional contraband, and held that American shippers were entitled to rely upon "this historic doctrine, consistently maintained by Great Britain when a belligerent as well as a neutral."

The Secretary admitted the right of a belligerent on the high seas to visit and search American vessels or other neutral vessels carrying American goods, and the right to detain them when there was sufficient evidence to justify a belief that contraband articles were in their cargoes. But the United States could not "without protest" permit American ships or American cargoes to be taken into British ports and "there detained for the purpose of searching generally for evidence of contraband, or upon presumptions created by special municipal enactments which are clearly at variance with international law and practice.'

The British Government soon made a preliminary reply to the American note of December 26, expressing their agreement with the principles of international law as set forth in the note and expressing their desire to restrict action "solely to interference with contraband destined for the enemy." In acknowledging on January 12 the receipt of the British reply, Secretary Bryan expressed satisfaction that the two Governments agreed in principle.

A few days later, President Wilson informed Ambassador Page in Great Britain that the American Government could not prevent the increasing criticism of British acts which seemed unnecessarily severe for the enforcement of belligerent rights." The President believed it should be possible for two governments "so genuinely friendly and so nearly of one mind with regard to the principles involved", to agree upon methods "by which good faith and entire compliance with the proper restrictions of a time of war and of national defense" could be determined with the smallest possible number of seizures and trials in prize courts. Finally, he suggested the feasibility of agreeing upon such methods; the British Government could "thus be assured of compliance with all its just regulations and of freedom from even the risk of friction and hostile sentiment as between the two nations".

In a letter of January 20, 1915, to Chairman Stone of the Senate Committee on Foreign Relations, Secretary Bryan mentioned that representations had been made to Great Britain in regard to the seizure and detention of American ships and cargoes destined to neutral ports, on the ground that this action was contrary to existing rules of international law. However, he stated, American courts had asserted and extended the rule of continuous voyage. They had

'Document 43. Document 46. • Document 44.