.1)3 
 
LIBRARY OF CONGRtJJ 
 
 llllfll. 
 
 021 394 489 7 ^ 
 
 Hollinger Corp. 
 pH8.5 
 
opy 1 
 
 THE 
 
 "Orders in Councir' 
 
 OF 
 
 March, 1915 
 
 AND 
 
 The " War Zone '' Decree 
 
 A Letter to the State Department 
 
Qih 
 
 Authoo 
 
[copy telegram.] 
 
 March 19, 1915. 
 
 Robert Lansing, 
 
 Counselor of the State Department, 
 AV'asliingtoii, I). C. 
 
 The New York Times purports to give a sum- 
 mar}^ of a proposed identical American note to 
 France and England. If correctly given it wonld 
 appear that Ave wholly overlook therein the doc- 
 trine of reprisal npon which alone and specifically 
 the Orders in Conncil are based. Such a course 
 wonld lay ns open to a claim of disingennonsness 
 and of a species of special pleading unbecoming to 
 this nation. Reprisal does not import necessarily 
 any sense of identity of method, but only of simi- 
 larity of effective resnlt, and this the Orders in 
 Conncil are directly aimed to produce, i. e. a 
 stoppage of the commerce of a belligerent which 
 was also the object of the War Zone decree to 
 which they are the repl,y. The difference, however, 
 is that Germany threatened to produce that result 
 by violence and incidental loss to neutrals in life 
 and property, while France and England propose 
 to bring it about with safety and compensation to 
 neutrals. A failure to affirmatively recognize in 
 our note that the Orders in Council are reprisal 
 might justly be regarded as the taking of a dis- 
 tinctly unfriendly attitude and a departure from 
 our neutral position — unless there were intent to 
 embroil the country and unless a bringing on of 
 war were the ultimate object. We should avoid plac- 
 ing ourselves in the position of being disingenuous, 
 as at some time we would have to bear the burden 
 
of having taken siicli a position. This slionld be 
 bi'onglit iineq 111 vocally before the State Depart- 
 ment. Since our position among the nations re- 
 qnires onr meeting the real issne, not a pretended 
 one. The countrj^ won Id not sustain an adminis- 
 tration on the facts becoming apparent if any less 
 ingenuous course Avere pursued. A limited or 
 partial or qualified blockade can be properly 
 adopted as medium of reprisal without the belliger- 
 ent being subject to demand that it be made more 
 drastic. iMeanwhile the incorporation of penalties 
 for evasions which were only rendered possible by 
 the ameliorated c(mditions provided is justifiable 
 and continuity of voyage is our own doctrine. 
 
 Chas. Stewart Davison. 
 
March 19th, 1915. 
 
 Robert Lansing, Esq., 
 
 Counselor of the State Department, 
 Washington, D. C. 
 
 Dear Sir: — 
 
 I am handing yon herewith (in confirmation) a 
 copy of tlie telegram which I sent yon to-day in 
 relation to the pnrported summary, contained in 
 this morning's issue of the New York Times, of our 
 proposed note in reply to the notes from France 
 and England and the British Orders in Council. 
 
 It may be that the information so categorically 
 given in the New York Times is erroneous, though 
 as it is sub-divided into paragraphs and deals cate- 
 gorically with various of the phases of the matter, 
 it bears internal evidence of being founded on 
 specific information. Also the appended general 
 comment in the Times follows in detail and ex- 
 pands each proposition which it sets forth in its 
 summary. I note that others of the New York 
 papers, notal)ly the Sun and Herald, differ from 
 the Times in their reviews of what is expected to 
 be the scope of the identical note and represent it 
 as being more in accordance with the actual situa- 
 tion, nevertheless, they indicate that the gravamen 
 of our protest will be placed upon the claim that 
 the French-English procedure is a "Blockade", 
 whereas it is in fact an employment of "the 
 right of reprisal." So far as neutrals are con- 
 cerned any steps permissible under the doctrines 
 of international law may be adopted as reprisal, 
 and it is immaterial whether such steps assimi- 
 late themselves, so far as they go, to "blockade" 
 or to any other of the legitimate aspects of a 
 state of war between belligerents. The entire 
 subject is summarized by AVheaton (part Fourth, 
 chap.: ii) in his paragraph regarding what he 
 terms "the right to reprisal or vindicative 
 retaliation"^ — and vou will note that the British 
 
Orders in Council made public on the IStli instant 
 use in their preamble, concerning the so-called War 
 Zone decree of Germany, the phrase "such attempts 
 "on the part of the enemy give * * * an un- 
 "questionable right of retaliation" and continuing 
 state that it has "therefore" been "decided to adopt 
 ''further measures in order to prevent commodities 
 "of any kind from reaching or leaving Germany." 
 Wheaton's statement applies with exactitude to 
 the present situation. He says : "The ^yhole inter- 
 "national code is founded upon reciprocity. The 
 "rules it prescribes are observed by one nation, in 
 "confidence that they will be so by others. Where, 
 "then, the established usages of war are violated by 
 "an enemy, and there are no other means of re- 
 "straining his excesses, retaliation may justly be 
 "resorted to by the sutfering nation, in order to 
 "compel the enemy to return to the observance of 
 "the law which he has violated" (see also on this 
 subject Vattell, liv. iii, ch: 8, § 142; ch. 9, §§ 16G- 
 173. Martens Precis du Droit des Gens Moderne de 
 I'Europe, liv. viii ch: 4, §§ 272-280. Kliiber, part 
 II. tit. 2 sec. 2, ch: 1, §§ 2G2-265). The position 
 which it is proposed that we should take according 
 to the New York Times is that of attempting to 
 force France and England into the declaration of 
 a technical "Blockade" : that we should then con- 
 tend with them as to the characteristics of the only 
 "blockade" which the introduction of submarine 
 warfare makes possible: to wit: a so-called "long 
 "distance blockade" : as well as upon the subject 
 of a distinction existing in the doctrine of contin- 
 uity of voyage (in its relation to blockades) be- 
 tween contraband and non-coutraband goods. Such 
 a course on our part would be disingenuous. I do 
 not conceive it possible that it should be contem- 
 I)lated. Mean\\'hile the New York Sun in its review 
 of our proposed note says that the objections will 
 be "narrowed down to a few specific questions'" 
 i. e., the application of the doctrine of continuity 
 of voyage to non-contraband goods, the lack of 
 definiteness contained in the expression that the 
 
steps contemplated will be limited to European and 
 Mediterranean waters and the expressed possibil- 
 ity of condemnation being visited upon a merchant 
 vessel which : being allowed to pass as having an 
 ostensible destination to a neutral port proceeds to 
 an enemy port; if it be captured on a subsequent 
 voyage. As to the first of these : so far as we may 
 have limited the doctrine of continuity of voyage 
 during the period of our Civil War to contraband 
 this was a limitation of convenience an extension 
 beyond the point to which we enforced the doctrine 
 not being deemed necessar^^ 
 
 While I have in my telegram referred to the con- 
 tinuity of voyage doctrine als "ours", chiefly because 
 of the prominence which we gave it in application 
 during our Civil AVar, it may be noted that it orig- 
 inated with Lord Stowell (Sir William Scott) and 
 was applied against ourselves during the early por- 
 tion of the nineteenth century — the well known 
 cases of the Folly, the Maria and the William being 
 illustrative thereof. As to the second point, lack 
 of definiteness as to radius of operations, it may be 
 observed that the Orders in Council are at least as 
 definite in delimitation of radius of operations as 
 is the War Zone decree. Note also that in parallel 
 case we would have no difficulty in understanding 
 where "American waters" are, we should have 
 equally no difficulty in understanding where 
 "European and Mediterranean" waters are. A ves- 
 sel clearing for any port on the European coast, or 
 any port on the non-European coasts of the Medi- 
 terranean, would clearly contemplate going within 
 waters properly to be designated as "European or 
 Mediterranean". A vessel clearing for any other 
 port would not have necessity to traverse any 
 waters which by any possibility could be deemed 
 "European" or "Mediterranean". As for the third 
 point, liability to condemnation if: having been 
 allowed to pass as having a destination to a neutral 
 port a vessel proceeded to an enemy port and was 
 subsequently captured : it would seem that we could 
 ill afford to sustain the cause of a vessel which un- 
 
G 
 
 dertook to take advantage of the ameliorated con- 
 ditions provided by a belligerent, to mitigate as far 
 as possible the burdens placed upon the commerce 
 of a neutral by the existence of a war, through 
 practising on ourselves the fraud of taking out 
 false clearance papers. 
 
 The summary of the proposed note given in the 
 New York Herald tends to indicate a limitation of 
 our proposed protest to any enforcement of the re- 
 taliatory measure, in the case of non-contraband 
 goods, under the doctrine of continuity of voyage: 
 and to the alleged lack of deliuiteness in the defined 
 radius of action. These two points are dealt with 
 above but it may be well to point out that "contra- 
 band" is an elastic term dependent for its definition 
 upon the actual conditions of a given situation and 
 that, as to a country which adopts the rule of uni- 
 versal military service for its males, takes over the 
 regulation of the distribution of food, and appro- 
 priates the stock of metals and other commodities, 
 any of these may legitimately be included within 
 the definition of contraband for the occasion, 
 whether they or any of them might under other cir- 
 cumstances properly be excluded therefrom. 
 
 The New York AVoild in its summary and review 
 of the prospective note substantially describes it as 
 a proposed attempt to claim that a limitation exists 
 against France and Great Britain's making a simul- 
 taneous application of the rules of blockacle and the 
 rules governing contraband and non-contraband — 
 this in accordance with the prior American note. 
 The answer is found in the major proposition that 
 the Orders in Council are retaliatory and that, in 
 reprisal, or retaliation, any and all doctrines of 
 international law may be availed of by a retaliating 
 nation simultaneously or separately to such extent 
 as is deemed advisable, without objection by neu- 
 trals, provided only that any so availed of are rules 
 applicable to neutrals. 
 
 Summarizing, then, the position Avliich it is pro- 
 posed we should take, as the same is found indi- 
 cated in anticipation, in the public press, it would 
 
appear that we were about to adopt what in my 
 telegram of to-dav's date to yon I have ventnred to 
 designate as a disingennons position or a species of 
 special pleading unbecoming a people of the stand- 
 ing among nations of the United States of 
 America. 
 
 There is moreover another aspect of this general 
 subject which should be referred to, even if but 
 briefly. Our original error. Thereby was created 
 a false situation in which apparently we find our- 
 selves enmeshed. I refer to the fact that Germany, 
 having promulgated her AYar Zone decree : we hav- 
 ing strongly protested against its utterly illegal 
 character in its application to neutrals : received 
 from Germany a proposal to mitigate or withdraw 
 the illegal proposals so far as neutrals were con- 
 cerned if England would make recited concessions 
 to her. Our reply should have been that we were 
 Neutral. We should have said to Germany that 
 we would not bargain with her concerning her il- 
 legal proposals any more than we would with Eng- 
 land or with France in like case. That if either 
 France or England took any steps which invaded 
 our neutral rights we would deal with France and 
 England and that if Germany undertook to invade 
 our neutral rights we would deal with Germany, 
 This was not our reply. Instead of this, we placed 
 ourselves in the false position of seeking to obtain 
 from England concessions to Germany as a condi- 
 tion of having Germany respect our neutral rights. 
 Hinc illfc lacrimcr. We have placed ourselves in a 
 non-sustainable position. We are, as it would ap- 
 pear from the predictions concerning our next note 
 to France and England, forced into the position of 
 quarreling with them as to the details of their re- 
 taliatory measures : which retaliation would never 
 have existed had we continued in the very proper 
 position taken in our original protest to Germany 
 against her so-called War Zone decree. It is ap- 
 parent from the express terms of that decree that 
 it was wholly incapable of enforcement — it so 
 
8 
 
 stated itself to be — except at the peril of the lives 
 and property of neutrals. It would not have been 
 attempted to be enforced had we not shuffled and 
 vacillated after threatening". If it had not been 
 attempted to be enforced no retaliatory measures 
 conld have been resorted to. We have been used to 
 pnll the chestnuts out of the fire for Germany by 
 what can only be descril)ed as most unexampled 
 blunderiui>- on our part. The sooner we return to 
 a sound diplomatic position and abandon the role 
 of volunteer bargainers between belligerents : seek- 
 ing to obtain security for our undoubted rights 
 from the aggression of the one by obtaining for it 
 concessions from the other : the less likely we shall 
 be to lose as well the esteem as the respect of all the 
 bellicerents. 
 
 I remain, 
 
 Yours respectfully, 
 
 Chas. Stewart Davison. 
 
 Enclosure: Copy of telegram of even date. 
 
021 394 489 7