BRITISH ORDER IN COUNCIL, August 20, 1914

In this instruction of September 26, Acting Secretary Lansing discussed the British modifications of the Declaration of London, which were contained in the order in council of August 20. He stated that serious misunderstandings might result from the uncertainty in meaning of the 3d article. This article provided that the destination of conditional contraband for the use of the armed forces or of a government department of an enemy state might be inferred from "any sufficient evidence", and should be presumed if goods were consigned "to or for an agent of the enemy state or to or for a merchant or other person under the control of the authorities of the enemy state."

Article 5 of the order in council provided that conditional contraband, if destined for the use of the armed forces or of a government department of an enemy state, was "liable to capture to whatever port the vessel is bound and at whatever port the cargo is to be discharged." The Acting Secretary stated that this was a reversion to the doctrine of continuous voyage in relation to conditional contraband, a doctrine which had been abandoned by the London.conference. Destination to enemy territory, he held, could not properly be considered sufficient ground for seizing foodstuffs or other conditional contraband, unless they were destined for the use of the armed forces or of a government department of an enemy state.

Acting Secretary Lansing held that to concede the existence of the right asserted by these two articles would be to make neutral trade between neutral ports dependent upon the pleasure of belligerents, and give belligerents the advantages of an established blockade without the necessity of maintaining it with an adequate naval force. This asserted right suggested to him the so-called paper blockades which were repudiated by the Declaration of Paris.

The Acting Secretary next considered article 6 of the order in council, which provided that the general report of the drafting committee on the Declaration of London should be considered by prize courts" as an authoritative statement of the meaning and intention of the said declaration and such courts shall construe and interpret the provisions of the said declaration by the light of the commentary given therein." He stated that the Senate of the United States in giving its consent to the ratification of the declaration did not include the report of the drafting committee. Furthermore, it was "contrary to the long-established practice of the system of jurisprudence of this country to make any commentary upon the law binding upon the courts of justice." The United States could

Apr. 24, 1912.

5

not agree, therefore, to make the views of a committee of the conference an integral part of the Declaration of London.

Although the Acting Secretary did not discuss other provisions of the order in council, he stated that the acquiescence of the Government of the United States in the British position on the declaration might tend to create for the United States neutral duties or incapacities which might be considered unfriendly by the adversaries of Great Britain. He declared that the United States "would be unable to accept the declaration as thus modified." Therefore, the Government reserved all its rights under international law with regard to any losses or damages which might occur from British captures or condemnations made under the provisions of the Declaration of London as modified by the order in council of August 20.

In presenting the foregoing views to the British Government, Ambassador Page was to state that the United States was greatly concerned that Great Britain should advance doctrines and advocate practices which in the past had aroused bitter feeling among the American people. He was to express the fear that the British action would "awaken memories of controversies, which it is the earnest desire of the United States to forget or to pass over in silence."

6

On September 28, two days after this instruction was mailed, Ambassador Page was directed by cable to tell the British Secretary for Foreign Affairs that the United States was greatly disturbed by Great Britain's intention to change the provisions of the Declaration of London by the order in council of August 20. The Ambassador was to tell him also that there was grave concern over all of the proposed changes, especially those in articles 3 and 5. Furthermore, he was to say that President Wilson desired to avoid a formal protest and hoped the British Government would be willing to modify these features of the order in council. Finally, the President desired that the Secretary for Foreign Affairs should realize that the terms of the Declaration of London represented the limit to which the Government of the United States could go "with the approbation and support of its people."

During the evening of September 28, Acting Secretary Lansing discussed the order in council of August 20 with the British Ambassador. The Ambassador agreed that the order in council practically made foodstuffs absolute contraband. He explained that it had been issued because in the first days of the war food supplies for the German army in Belgium had been introduced through Rotterdam. The Acting Secretary said it seemed unfortunate that some

Document 14. 'Document 15.

other means could not have been found to accomplish the desired purpose, "either by getting the Netherlands to place an embargo on foodstuffs and other conditional contraband or by agreeing not to reexport such articles."

The Ambassador mentioned that now the chief anxiety of the British Government was in regard to shipments of petroleum, copper, and iron. He suggested that the difficulty created by the order in council might be removed by rescinding it and adding to the list of absolute contraband petroleum products, copper, barbed wire and other articles then used almost exclusively for war purposes. The Acting Secretary agreed that this suggestion seemed worthy of consideration as a means of doing away with the order in council.

Ambassador Page reported on September 29 that the Secretary for Foreign Affairs had proposed a discussion of the British modifications to the Declaration of London. Two days later Page was directed by cable that he should not present the instruction of September 26 to the British Government, but should use it for his own information in informal discussions." That instruction, he was informed, defined the position of the United States in regard to acceptance of the Declaration of London and stated the Government's objections to the British order in council. Furthermore, it outlined the reasons for the refusal of the United States to agree to any material modifications of the declaration. An important one of these reasons was "the view which the German and Austrian Governments would undoubtedly hold of an acceptance of modifications of the declaration which would be of special advantage to their enemies."

On October 2, the Acting Secretary of State offered the British Ambassador in an "entirely unofficial and personal way ", some suggestions regarding the Declaration of London.10 He stated that under articles 23 and 25 of the declaration a belligerent would have the right to add to the lists of absolute and conditional contraband given in articles 22 and 24. Although in the case of absolute contraband the added articles must be those "exclusively used for war", he believed that "exclusively" could not be interpreted literally. A literal interpretation would exclude dynamite sticks used in mining, an exclusion which he thought was not intended. In interpreting "exclusively used for war", he felt that there must be taken into consideration the methods of warfare, the presumed destination of the articles, and the situation existing at the time the articles were added to the absolute contraband list. If this view was correct, then article 1 of the order in council of August 20, which

8 Footnote 21, p. 206.

9 'Document 16.

10 Document 17.

substituted new lists of absolute and conditional contraband for those contained in the Declaration of London, was not a modification of the declaration but "merely an act performed under its provisions."

The Acting Secretary asked whether the powers conferred upon belligerents by articles 23 and 25 of the declaration were not sufficient to protect British interests. He thought the main object of the British Government was to apply the doctrine of continuous voyage to certain articles listed as conditional contraband, but which they considered munitions. Since these articles could be treated upon notice as absolute contraband, he did not see the necessity for modifying the declaration.

On October 4, Ambassador Page in Great Britain was informed of these suggestions made by the Acting Secretary to the British Ambassador." Page was also informed that the United States would view with "eminent satisfaction" British acceptance of the Declaration of London without change. After unconditional acceptance, modifications of lists of contraband could be made under articles 23 and 25, but as to the propriety of these additions the United States reserved opinion until notified of them.

PROPOSED BRITISH ORDER IN COUNCIL

The British Secretary for Foreign Affairs handed Ambassador Page, on October 9, a proposed order in council which was to replace the one of August 20, and which was not to be issued until discussed with the Government of the United States. On October 16, the Acting Secretary of State cabled the Ambassador five objections to the proposed order in council: 12

1. It did not accept the Declaration of London without change; the modified acceptance would not be satisfactory to other belliger

ents.

2. It left unrepealed the " especially objectionable" articles 3 and 5 of the order in council of August 20.

3. It added to the lists of contraband already issued by the British Government. As these additions could have been made under articles 23 and 25 of the Declaration of London if it had been adopted without change, it was needless to modify the declaration.

4. It provided that a vessel bound for a neutral port should be liable to capture on the ground that its cargo was conditional contraband, if "no consignee in that country of the goods alleged to be conditional contraband is disclosed in the ship's papers." The Acting Secretary stated that this provision appeared to go even further than article 5 of the order in council of August 20 in applying to conditional contraband the doctrine of continuous voyage.

"Document 19. "Document 23.

5. It stipulated that when one of the British Principal Secretaries of State was convinced that an enemy was obtaining supplies or munitions 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. The Acting Secretary stated that this provision imposed upon neutral commerce a restriction which appeared to be without precedent. Articles listed as conditional contraband, shipped in a neutral vessel to a consignee in a neutral country, would make the vessel and cargo liable to seizure if the British Government were convinced that supplies or munitions were entering enemy territory from the neutral country. Furthermore, a belligerent would gain all rights over neutral commerce with enemy territory without declaring war against the neutral country which was claimed to be a base of supply for the military forces of an enemy. Finally, the Acting Secretary considered it "inconsistent to declare a nation to be neutral and treat it as an enemy."

On this same date, October 16, Acting Secretary Lansing cabled Ambassador Page that the United States wished to obtain from the British Government the issuance of an order in council adopting the Declaration of London without amendment; that the United States also wished to obtain from France and Russia like decrees.13 Such an adoption by the Allied Governments, he stated, would put in force the acceptance by Germany and Austria of the declaration. He believed that this could not be accomplished if the declaration were changed in any way, as Germany and Austria would not consent to a change.

The Acting Secretary stated that he did not feel warranted in offering any suggestion to the British Government as to a course which would meet the wishes of the United States and at the same time accomplish the ends sought by Great Britain. However, the Ambassador might in the strictest confidence "intimate" the following plan, personally and without engaging his Government's responsibility:

1. The British Government would issue an order in council accepting the Declaration of London without change or addition and repealing all previous conflicting orders in council.

2. This order in council would be followed by a proclamation adding articles to the lists of absolute and conditional contraband under authority conferred by articles 23 and 25 of the declaration. 3. The proclamation would be followed by another order in council which would provide that when one of the British Principal Secretaries of State was convinced that a port or the territory of a neutral country was being used as a base for the transit of supplies for an enemy government, "a proclamation shall issue declaring that such port or territory has acquired enemy character in so far as trade in contraband is concerned and that vessels trading there

18 Document 22.