File No. 841.622a/319
For the guidance of the Department, I venture to add that my memorandum
of December 29 last, to which Mr. Balfour makes reference, was based upon the Department’s
instruction No. 4520 of December 1, 1916,2 and that a copy of the Foreign Office note of
the
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30th ultimo was
transmitted to the Department under cover of my despatch No. 6328 of May
31,1 the substance of
it having been telegraphed in my 6318 of the 31st ultimo, 2 p.m.
[Enclosure]
The British Secretary of State for Foreign
Affairs (
Balfour) to
the American Ambassador (
Page)
Your Excellency: I have the honour to
inform your excellency that His Majesty’s Government have given
attentive consideration to the memorandum which you were good enough
to communicate to me on the 29th December last in which were stated
the views of the United States Government on the questions raised by
the removal, effected by the British naval authorities, of certain
persons, subjects of a country at war with the United Kingdom, from
the United States steamers
Henry S., Marcus L.
Urann
and Ausable. In your note No. 3806 of
the 25th ultimo, your excellency requested that the case of the
removal of two German subjects from the United States steamer Allaguash by His Majesty’s ship Amethyst on the 3d February last might be
considered together with those just cited.
Having regard to the entry of the United States into the present war
as a co-belligerent with Great Britain against the German Empire and
to the arrangement proposed in your excellency’s note No. 3807 of
the 25th April and accepted in my note of the 30th instant, by which
the warships of each of the two countries are free to arrest enemy
subjects found travelling on merchant vessels flying the flag of the
other, His Majesty’s Government presume that your Government no
longer desire that the persons removed from the ships above
mentioned should forthwith be set at liberty. It appears to His
Majesty’s Government unnecessary in the circumstances to examine the
contention of the United States Government that a reservist called,
or liable to be called, to the colours of his national army is not
to be classed among the combatant persons who might, according to
the rule laid down in the ancient treaties quoted in your memorandum
and to the provisions of Article 47 of the Declaration of London of
1909, be removed from a neutral ship by a belligerent without
prize-court proceedings being taken against the carrying vessel, or
the further contention that, if any persons may be so removed, it is
only in cases where their destination is enemy territory. It will be
sufficient merely to indicate the practical grounds on which His
Majesty’s Government feel that to accept the view of the United
States Government that a belligerent must not interrupt the
transport
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of enemy
persons, however clear and unconditional their military or naval
character, by a neutral ship without bringing the latter before a
prize court, is under the conditions of modern commerce contrary to
the interests of all parties concerned.
Your excellency’s memorandum sets out the facts in regard to the
theory and past practice of the Governments of the United States and
of this country in the matter. His Majesty’s Government would be
prepared to admit the proposition that during the greater part of
the nineteenth century the practice of the two countries was not to
remove enemy persons from neutral vessels on the high seas without
placing such vessels in the prize court. The conditions of passenger
traffic by sea have, however, greatly changed, and experience has,
in the opinion of His Majesty’s Government, shown that a
reconsideration of the matter may be in the interests both of
belligerents and of neutrals. The treaties referred to in Viscount
Grey’s memorandum of the
15th July last,1 and enumerated in your reply of the 29th
December show that there is warrant in the old practice of many
countries for the adoption of a different policy, and the
proceedings of the London Naval Conference show that the reasons
which press in this direction have secured recognition among the
most important maritime states.
The practice followed by British warships during the present war of
removing enemy subjects from neutral merchant ships on the high seas
while allowing the vessels concerned to pursue their voyages, even
if it is a modification of the practice previously followed by Great
Britain, is a modification which His Majesty’s Government have
adopted largely out of regard for the interests of neutral shipping.
To detain a vessel and to bring her before a prize court with a view
to proceedings to ascertain whether she had been employed by the
enemy for the transport of the enemy persons on board, and was
liable to condemnation accordingly, would impose great inconvenience
and heavy loss on the owner of the ship, on the fellow passengers of
the enemy persons concerned, and on the owners of the cargo. A
return to the older practice in those cases where no questions
affecting the cargo are involved, and where His Majesty’s Government
have no wish to secure the condemnation of the vessel, would seem to
be contrary to the interests of all parties and to be tantamount to
ignoring altogether the conditions in which modern passenger traffic
by sea is carried on.
In the great majority of cases it is probable that His Majesty’s
Government would have no wish to press for the condemnation of the
ships by the prize court and it would not be their desire to detain
the vessels for longer than the period necessary for the removal of
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the enemy persons on
board. In such circumstances they can not believe that any neutral
government would prefer that their vessels should be detained and
sent in for adjudication by a prize court, in order that the ship’s
owner in each instance might have an opportunity of establishing
that the carriage of any noxious individual on board was quite
unwitting on his part.
The practice at present being followed is so clearly to the general
advantage that His Majesty’s Government do not propose to modify it
and send in the (neutral) vessel for adjudication before a prize
court except in the case of a neutral country whose government may
express a definite wish to that effect, and which may be prepared to
come to some understanding that they will not look to His Majesty’s
Government to compensate the shipowners for the losses entailed.
I have [etc.]
For the Secretary of State:
W. Langley
