Assuming that this understanding is acceptable to the German Government, it will only remain for the Government of the United States to nominate its expert to act with the expert already nominated by the Germany Government on the joint commission. It seems desirable to the Government of the United States that this joint commission of experts should meet without delay as soon as the American member is named and that its meetings should be held in the United States, because as pointed out in my note to you of April 30, last,85 any evidence which the German Government may wish to have produced is more accessible and can more conveniently be examined there than elsewhere. With reference to the agreement to submit to arbitration the question of treaty interpretation, the Government of the United States notes that in answer to its inquiry whether, pending the arbitral proceedings, the German Government will govern its naval operations in accordance with the German or American interpretation of the treaty stipulations in question, the reply of the German Government is that it "has issued orders to the German naval forces not to destroy American merchantmen which have loaded conditional contraband even when the conditions of international law are present, but to permit them to continue their voyage unhindered if it is not possible to take them into port " and that "on the other hand it must reserve to itself the right to destroy vessels carrying absolute contraband whenever such destruction is permissible according to the provisions of the Declaration of London." Without admitting that the Declaration of London is in force, and on the understanding that the requirement in Article 50 of the Declaration that "before the vessel is destroyed all persons on board must be placed in safety" is not satisfied by merely giving them an opportunity to escape in life boats, the Government of the United States is willing, pending the arbitral award in this case, to accept the Declaration of London as the rule governing the conduct of the German Government in relation to the treatment of American vessels carrying cargoes of absolute contraband. On this understanding the Government of the United States agrees to refer to arbitration this question of treaty interpretation. The Government of the United States concurs in the desire of the Imperial German Government that the negotiations relative to the signing of the compromis referring this question of treaty interpretation to arbitration under the provisions of Article 52 of The Hague Arbitration Convention, should be conducted between the German Foreign Office and the American Embassy in Berlin, and the Government of the United States will be glad to receive the draft compromis, which you inform me the Foreign Office is prepared to submit to the American Ambassador in Berlin. Anticipating that it may be convenient for the Imperial German Government to know in advance of these negotiations the preference of the Government of the United States as to the form of arbitration to be arranged for in the compromis, my Government desires me to say that it would prefer, if agreeable to the Imperial Government, that the arbitration should be by summary procedure based upon the provisions of 85 See document 71. Articles 86 to 90 inclusive, of The Hague Arbitration Convention, rather than the longer form of arbitration before the Permanent Court at The Hague. Arrange for simultaneous publication of this note at earliest date which will give you time to notify the Department. LANSING 131 The Secretary of State to the Ambassador in Great Britain (Page) " WASHINGTON, October 21, 1915. 86 SIR: I desire that you present a note to Sir Edward Grey in the sense of the following: (1) The Government of the United States has given careful consideration to Your Excellency's notes of January 7, February 10, June 22, July 23, July 31 (2), August 13, and to a note verbale of the British Embassy of August 6, relating to restrictions upon American commerce by certain measures adopted by the British Government during the present war. This Government has delayed answering the earlier of these notes in the hope that the announced purpose of His Majesty's Government "to exercise their belligerent rights with every possible consideration for the interest of neutrals " and their intention of "removing all causes of avoidable delay in dealing with American cargoes " and of causing "the least possible amount of inconvenience to persons engaged in legitimate trade ", as well as their "assurances to the United States Government that they would make it their first aim to minimize the inconveniences" resulting from the "measures taken by the Allied Governments", would in practice not unjustifiably infringe upon the neutral rights of American citizens engaged in trade and commerce. It is, therefore, a matter of regret that this hope has not been realized, but, that, on the contrary, interferences with American ships and cargoes destined in good faith to neutral ports and lawfully entitled to proceed have become increasingly vexatious, causing American ship-owners and American merchants to complain to this Government of the failure to take steps to prevent an exercise of belligerent power in contravention of their just rights. As the measures complained of proceed directly from orders issued by the British Government, are executed by British authorities and arouse a reasonable apprehension that, if not resisted, they may be carried to an extent even more injurious to American interests, this Government directs the attention of His Majesty's Government to the following considerations: (2) Without commenting upon the statistics presented by His Majesty's Government to show that the export trade of the United States has increased in volume since the war began further than to point out that the comparative values fail to take into account the increased price of commodities resulting from a state of war or to make any allowance for the diminution in the volume of trade which File No. 763.72112/1861a; For. Rel., 1915, supp., p. 578. the neutral countries in Europe previously had with the nations at war, a diminution which compelled them to buy in other markets, I will pass directly to the matters which constitute the specific complaints of this Government. (3) First: The detentions of American vessels and cargoes which have taken place since the opening of hostilities have, it is presumed, been pursuant to the enforcement of the Orders in Council, which were issued on August 20 and October 29, 1914, and March 11, 1915,87 and relate to contraband traffic and to the interception of trade to and from Germany and Austria-Hungary. In practice these detentions have not been uniformly based on proofs obtained at the time of seizure, but many vessels have been detained while search was made for evidence of the contraband character of cargoes or of an intention to evade the non-intercourse measures of Great Britain. The question, consequently, has been one of evidence to support a belief or, in many cases, a bare suspicion of enemy destination, or occasionally of enemy origin, of the goods involved. Whether this evidence should be obtained by search at sea before the vessel or cargo is taken into port, and what the character of the evidence should be, which is necessary to justify the detention, are the points to which I direct your Excellency's attention. (4) In regard to search at sea, an examination of the instructions issued to naval commanders of the United States, Great Britain, Russia, Japan, Spain, Germany, and France from 1888 to the beginning of the present war shows that search in port was not contemplated by the Government of any of these countries. On the contrary, the context of the respective instructions shows that search at sea was the procedure expected to be followed by the commanders. All of these instructions impress upon the naval officers the necessity of acting with the utmost moderation, and in some cases commanders are specifically instructed, in exercising the right of visit and search, to avoid undue deviation of the vessel from her course. (5) An examination of the opinions of the most eminent text writers on the laws of nations shows that they give practically no consideration to the question of search in port, outside of examination in the course of regular Prize Court proceedings. (6) The assertion by His Majesty's Government that the position of the United States in relation to search at sea is inconsistent with its practice during the American Civil War is based upon a misconception. Irregularities there may have been at the beginning of that war, but a careful search of the records of this Government as to the practice of its commanders shows conclusively that there were no instances when vessels were brought into port for search prior to instituting Prize Court proceedings, or that captures were made upon other grounds than, in the words of the American note of November 7th [, 1914], "evidence found on the ship under investigation and not upon circumstances ascertained from external sources. A copy of the instruction issued to American naval officers on August 18, 1862, for their guidance during the Civil War, is appended.88 Documents 11, 32, and 54, respectively. (7) The British contention that "modern conditions" justify bringing vessels into port for search is based upon the size and seaworthiness of modern carriers of commerce and the difficulty of uncovering the real transaction in the intricate trade operations of the present day. It is believed that commercial transactions of the present time, hampered as they are by censorship of telegraph and postal communication on the part of belligerents, are essentially no more complex and disguised than in the wars of recent years during which the practice of obtaining evidence in port to determine whether a vessel should be held for prize proceedings was not adopted. The effect of the size and seaworthiness of merchant vessels upon their search at sea has been submitted to a board of naval experts which reports that: "At no period in history has it been considered necessary to remove every package of a ship's cargo to establish the character and nature of her trade or the service on which she is bound, nor is such removal necessary. ... 89 "The facilities for boarding and inspection of modern ships are in fact greater than in former times; and no difference, so far as the necessities of the case are concerned, can be seen between the search of a ship of a thousand tons and one of twenty thousand tons, except possibly a difference in time, for the purpose of establishing fully the character of her cargo and the nature of her service and destination. . . .89 This method would be a direct aid to the belligerents concerned in that it would release a belligerent vessel overhauling the neutral, from its duty of search and set it free for further belligerent operations." (8) Turning to the character and sufficiency of the evidence of the contraband nature of shipments to warrant the detention of a suspected vessel or cargo for prize proceedings, it will be recalled that when a vessel is brought in for adjudication Courts of prize have heretofore been bound by well-established and long-settled practice to consider at the first hearing only the ship's papers and documents, and the goods found on board together with the written replies of the officers and seamen to standing interrogatories taken under oath, alone and separately, as soon as possible and without communication with or instruction by counsel, in order to avoid possibility of corruption and fraud. (9) Additional evidence was not allowed to be introduced except upon an order of the court for "further proof", and then only after the cause had been fully heard upon the facts already in evidence or when this evidence furnished a ground for prosecuting the inquiry further. This was the practice of the United States Courts during the war of 1812, the American Civil War, and the Spanish American War, as is evidenced by the reported decisions of those courts, and has been the practice of the British Prize Courts for over a century. This practice has been changed by the British Prize Court rules adopted for the present war by the Order in Council of August 5th [, 1914]. Under these new rules there is no longer a "first hearing" on the evidence derived from the ship, and the Prize Court is no longer precluded from receiving extrinsic evidence for which a suggestion has not been laid in the preparatory evidence. The result is, as pointed out above, that innocent vessels or cargoes are now seized and detained on mere suspicion while 'Omission indicated on the file copy of the Secretary's communication. efforts are made to obtain evidence from extraneous sources to justify the detention and the commencement of prize proceedings. The effect of this new procedure is to subject traders to risk loss, delay and expense so great and so burdensome as practically to destroy much of the export trade of the United States to neutral countries of Europe. 66 (10) In order to place the responsibility for the delays of vessels and cargoes upon American claimants, the Order in Council of October 29, 1914, as pointed out in the British note of February 10th, seeks to place the burden of proof as to the non-contraband character of the goods upon the claimant in cases where the goods are consigned to order" or the consignee is not named or the consignee is within enemy territory. Without admitting that the onus probandi can rightfully be made to rest upon the claimant in these cases it is sufficient for the purposes of this note to point out that the three classes of cases indicated in the Order in Council of October 29th apply to only a few of the many seizures or detentions which have actually been made by British authorities. (11) The British contention that in the American Civil War the captor was allowed to establish enemy destination by "all the evidence at his disposal ", citing the Bermuda case (3 Wallace 515),00 is not borne out by the facts of that case. The case of the Bermuda was one of "further proof", a proceeding not to determine whether the vessel should be detained and placed in a Prize Court but whether the vessel, having been placed in Prize Court, should be restored or condemned. The same ruling was made in the case of the Sir William Peel (5 Wallace 517). These cases, therefore, cannot be properly cited as supporting the course of a British captor in taking a vessel into port there to obtain extrinsic evidence to justify him in detaining the vessel for prize proceedings. (12) The further contention that the greatly increased imports of neutral countries, adjoining Great Britain's enemies, raise a presumption that certain commodities, such as cotton, rubber, and others more or less useful for military purposes, though destined for those countries, are intended for re-exportation to the belligerents who cannot import them directly, and that this fact justifies the detention for the purpose of examination of all vessels bound for the ports of those neutral countries, notwithstanding the fact that most of the articles of trade have been placed on the embargo lists of those countries, cannot be accepted as laying down a just or legal rule of evidence. Such a presumption is too remote from the facts and offers too great opportunity for abuse by the belligerent, who could, if the rule were adopted, entirely ignore neutral rights on the high seas and prey with impunity upon neutral commerce. To such a rule of legal presumption this Government cannot accede as it is opposed to those fundamental principles of justice which are the foundation of the jurisprudence of the United States and Great Britain. (13) Before passing from the discussion of this contention as to the presumption raised by increased importations to neutral countries this Government directs attention to the fact that His Majesty's |