841.711/1588½
The Secretary of State to
President Wilson
Washington,
October 17, 1916.
My Dear Mr. President: I am enclosing for your
consideration a memorandum which I have made on the general subject of
the detention and censorship of the mails. In this memorandum I have not
sought to traverse the arguments advanced by the Allied Powers in their
reply to our note of May 24th, but have sought to view the subject as
impartially as possible from the standpoint of principle and applied
common sense. An insistence on technicalities will, I feel sure, get us
nowhere as each side can bulwark itself behind many legal precedents,
which on account of the facts in each case appear to be reasonable and
sound. It seems to me, therefore, that we must go back to general
principles and determine by logic some solution of the problem.
In considering the subject I think that we should bear in mind that,
while we are neutral in the present war, we may be belligerent in the
next and may deem it necessary to do certain things which we now regard
as extreme restrictions upon neutrals. It would be most unfortunate to
tie ourselves too tightly to a proposition which we would regret in the
future.
[Page 322]
After you have read the memorandum you will perceive that I have reached
the following conclusions:
That there are two classes of mails: First, mails going to or toward the
Central Powers; and, second, mails coming from those powers or from
contiguous neutral countries.
That, as to mails coming from neutral countries included in the second
class, there is no basis at law or in reason for the inspection of
either sealed or unsealed mails.
That, as to the first class there exists the right to inspect unsealed
mail and to detain contraband articles; but as to the inspection of
sealed mail there is a conflict of principles due to the law of
contraband and the theory of inviolability, principles which are
irreconcilable because the superiority of right of exercise has never
been determined.
From these conclusions the only solution of the problem which suggests
itself to me is this:
That we insist that mail outcoming from neutral countries in continental
Europe shall be treated as inviolable and shall not be subject to
detention, inspection or seizure.
That the extent and exercise of the belligerent right to detain, inspect
or seize mail ingoing to continental Europe shall be submitted
immediately to arbitration or to a joint commission of inquiry, which
shall seek to apply the conflicting principles equitably and lay down a
series of rules which may be adopted as a modus
operandi by this Government and those of the Allies.
After I hear from you in this matter, and provided you approve of this
plan, I might take up the matter informally with the British Ambassador
and get the views of his Government.
Of course the difficulty is as to the procedure while the commissioners
are considering the question. I think that all we could do is to get the
best terms possible.
Faithfully yours,
[Enclosure]
Memorandum by the Secretary of State on Censorship
of Mails
[Washington,]
October 13, 1916.
The problem of the seizure and detention or censorship by a
belligerent of mails carried in a neutral bottom from a neutral port
to an enemy destination or to a neutral destination whither they may
without interruption be transmitted to the enemy, results from the
conflict of two established principles:
First. The belligerent right to remove from neutral vessels on the
high seas articles of contraband and contraband communications;
and
[Page 323]
Second. The neutral right to have mails between neutral countries,
and innocent private correspondence between a neutral country and a
belligerent country treated as inviolate by belligerents.
It is manifest that neither of these rights can be exercised to their
full extent and the other right maintained to any degree. The
unimpaired exercise of both rights is impossible. They cannot be
brought into harmony.
The question, therefore, arises as to whether the belligerent right
of mail-examination or the neutral right of mail-inviolability is
the superior right and should govern any attempted adjustment of the
conflict between the two rights.
In the first place, all belligerent rights on the high seas are
abnormal and contrary to the usual practice of nations in times of
peace. As a general proposition, the belligerent right should be
strictly construed against the belligerent exercising it, and
liberally construed as to the neutral whose normal rights are
impaired by such exercise. As a rule, therefore, when a belligerent
right conflicts with a recognized neutral right, the latter should
be the controlling factor in reaching an adjustment of the
differences.
On the other hand, if the full exercise of the neutral right destroys
or renders impossible of exercise a recognized belligerent right, it
is open to question whether or not the neutral rights should not be
so modified as to permit a reasonable exercise of the belligerent
right.
The argument in favor of the modification of a neutral right under
such conditions rests primarily on the fact that the national safety
of the belligerent is at stake, which is in truth the foundation of
all exceptional rights over neutrals and their property on the high
seas conferred upon belligerents. If the deprivation of a
belligerent right materially reduces the possibility of injury to an
enemy, or if such deprivation increases the efficiency of an enemy
is a neutral justified in insisting on the observance of neutral
right which deprives the belligerent of the right to which he would
be entitled if the neutral right did not exist?
If the neutral right is of vital interest there would seem to be
strong justification for insisting upon its full observance even
though the belligerent right in conflict was nullified by such
observance. But, if the neutral right recognized merely the
continuance of a practice usual in times of peace, the interruption
of which would not impair the vital interests of a neutral state but
would cause much inconvenience and possible pecuniary loss to the
nationals of that state, it would be of doubtful justice to insist
on the exercise of the neutral right without regard to its effect on
the belligerent right.
In large measure the limitations upon neutrals which result from the
exercise of belligerent rights on the high seas cause inconvenience
[Page 324]
and loss to neutrals
in their commercial enterprises. It is a consequence which is
considered unavoidable and is submitted to because of the
recognition of the supreme right of a nation to defend itself by
preventing aid from reaching its enemy. Like the right of visit and
search, the right to seize articles of contraband and contraband
communications is one of the oldest and most universally recognized
rights of belligerents. It was established before postal treaties
were negotiated and before the post had become a world wide
institution and mails measured by tons. The long unquestioned
acceptance of the law of contraband raises the query whether the
expansion of postal facilities to such an extent as to offer a
practical means of transporting contraband articles and
correspondence can lessen the full force of the more ancient
belligerent right.
To determine whether a mail bag contains contraband articles or
contraband correspondence requires inspection by a belligerent. Such
an inspection can be easily made of unsealed packets, and little
argument can be urged against the propriety of such inspection or
against the confiscation of articles of contraband which are found.
The chief complaints would arise from the seizure of articles of
doubtful contraband character and from undue delay in permitting
innocent articles to proceed to their destination.
In the case of sealed mail the real difficulty arises. Admitting that
the law of contraband can be applied to all articles and
communications found on neutral vessels on the high seas, it is
manifest that the law can [not?] be applied to sealed packets
without their being opened and inspected. But, if the law of
contraband cannot be applied to such mail, a channel of
communication and transportation would be open to an enemy, through
which might flow uninterruptedly contraband of all sorts because of
moderate rates of postage and the size of packages now permitted in
first class mail.
It cannot be expected that a belligerent will permit, if there is
power to prevent, this means of intercourse to remain free to an
enemy; and it is very doubtful whether a neutral is justified in
objecting to inspection of sealed mail and to the censorship of
correspondence provided the belligerent scrupulously confines the
inspection and confiscation of mail matter to that which is
unquestionably contraband. If the inspection of correspondence is
for the purpose of obtaining information either of a military or
civil nature it exceeds the limits of right. The sole legitimate
reason for interruption of mail is to prevent contraband articles
and information reaching the enemy. When it is manifest that the
acquisition of knowledge is a principal ground for the seizure or
detention of mail, it can find no warrant in law or in usage.
The foregoing applies to sealed mail destined to the enemy. In the
case of sealed mail between neutral countries, one of which is
[Page 325]
contiguous to the enemy
with whom are uninterrupted postal facilities, the problem is more
complex. Admitting the doctrine of ultimate destination, how can the
ultimate destination of sealed mail be determined unless it is
opened and inspected? If it is not opened, but is permitted to pass
with the seals unbroken, has not a sure and safe channel been found
for the conduct of an extensive trade in contraband with the enemy
of the belligerent allowing its passage? Is there not justification
for the belligerent in insisting on an inspection of sealed mail
going to a neutral country contiguous to enemy territory?
However strong may be the argument in favor of the justice of a
belligerent’s rights to inspect sealed mail going toward an enemy
and to apply the law of contraband to such mail, the argument cannot
be urged with equal force in regard to sealed mail, or even unsealed
mail, leaving a neutral country adjacent to enemy territory. The law
of contraband, depending upon enemy destination, cannot be invoked.
It may be claimed that the right of inspection and seizure arises
from the fact of enemy origin of articles, but that cannot be
conceded as giving legal effect to such an act, and it certainly
cannot be invoked in the case of sealed correspondence.
The opening of sealed correspondence would appear to be for the
purpose of obtaining information for the use of the belligerent.
That is the unavoidable presumption. Such a purpose is illegal and
improper and constitutes a very legitimate ground of complaint by
the neutral on whose vessel the mail is carried and also by the
neutral to which it is destined. Such mail at least should be
absolutely inviolate.
