of November, 1915, in order to load a cargo of coal for South America. The Vinland kept within the three-mile limit, and its master asserted that he was found by a British cruiser within American territorial waters and ordered to stop. The British Ambassador was immediately notified of this complaint and in his reply of December 1, 1915,' he said that "the British ships of war employed in the Atlantic have strict orders against the violation of American territorial waters" and in a later note, dated December 11, 1915, he specifically stated, as the result of an official report from his Government, that "the cruiser was never within four and a half miles of the shore, nor within one mile of The Vinland" and that "the cruiser was generally about three or four miles off The Vinland."

3

On this state of affairs the two Governments argued the question. In his note of December 16, 1915, Secretary Lansing, referring to previous correspondence, called the Ambassador's "attention to the annoyance which His Majesty's cruisers, lying off the principal commercial ports of the United States and stopping and searching vessels immediately beyond American waters, have given to shipping both overseas and coastwise, and to the seriousness with which the Government of the United States regarded the hovering of belligerent warships about American coasts and ports." He further informed the Ambassador that "this Government has always regarded the practice of belligerent cruisers patrolling American coasts in close proximity to the territorial waters of the United States and making the neighborhood a station for their observations as inconsistent with the treatment to be expected from the naval vessels of a friendly Power in time of war, and has maintained that the consequent menace of such proceedings to the freedom of American commerce is vexatious and uncourteous to the United States." He concluded the note with the earnest request that "instructions be issued to His Majesty's ships to desist from a practice which this Government is convinced has been maintained for long periods at a time and which is peculiarly disagreeable to it and to American traders concerned."

Following the usual delay of diplomacy, the British Ambassador replied to this note on March 20, 1916, but the British Government seems to have been busied in the meantime with American precedents, with which the reply bristles. In the first place, the Ambassa1 Official text, American Journal of International Law, Special Supplement, October, 1916, p. 375.

dor calls attention to the fact that no charge was made that the British cruisers entered the territorial waters of the United States, but that, on the contrary, an exception was taken "to proceedings of these vessels when navigating admittedly on the high seas." And this objection, he said, appeared "to rest upon a claim to distinguish between different parts of the high seas, a claim which causes surprise to His Majesty's Government who are unaware of the existence of any rules or principles of international law which render belligerent operations, which are legitimate in one part of the high seas, illegitimate in another." On this point the Ambassador was well advised, but whether there is or is not a distinction between parts of the high seas, hovering always is and always will be offensive to neutrals. With this by way of introduction the Ambassador states that "the rights asserted in this respect by the United States Government in previous wars will no doubt be conceded by the United States Government as well founded when exercised by others," and in this connection he refers to the conduct of Admiral Wilkes, whose fame as an Arctic explorer seems destined to be overshadowed by his misconduct in the case of The Trent. For that officer, while denying that he entered British ports in the West Indies to lie in wait for Southern vessels, nevertheless asserted that his vessels "maintained a system of cruising outside of the neutral waters of Bermuda in excess of his rights as a belligerent." This was an admission on the part of Wilkes and it became an admission on the part of the Government of the United States when, on January 15, 1863, Secretary of State Seward transmitted it to the British Legation in Washington in refutation of the charges of illegal conduct against Wilkes.

With this precedent in his favor, the British Ambassador called attention to the large number of ships in American ports and the necessity of taking such position on the high seas as to capture such vessels if they should put out to sea. And he concluded by asserting that, while his Government could not abandon any of its rights "so far as they are in accordance with international law and the practice of the United States Government," Great Britain would nevertheless try to exercise such rights in such a way as to inconvenience neutrals as little as possible.

On April 26, 1916,' Secretary Lansing answered the Ambassador's note in what appears to be the last of the series on this subject which

Official text, American Journal of International Law, Special Supplement, October, 1916, pp. 383-386.

has been given to the press. At the very beginning of his note the Secretary of State was very careful to point out that the United States did not claim that British vessels cruising beyond the three-mile limit were not "within their strict legal rights under international law," and he pointed out that the objection of the United States to this practice was based "not upon the illegality of such action but upon the irritation which it naturally caused to a neutral country." He thus distinguished present British from past American practice, saying:

The circumstances in those cases, however, were very different from the present, and the practice complained of far less offensive. The cruising, against which Great Britain protested, was done in the vicinity of small islands near the American coast which, after the blockade of the southern ports had been established, were used as rendezvous for vessels notoriously engaged in running the blockade. In the present case British cruisers are patrolling off the great ports of this country from which trade routes diverge to all parts of the world, particularly to Great Britain and her allies.1

In reply to the Ambassador's contention that British warships were stationed in proximity to ports in which German vessels were laid up, the Secretary informed the Ambassador that "a considerable number of American naval vessels have been constantly engaged since the war opened and, I think Your Excellency will admit, successfully engaged in preventing the use of American ports as bases of naval operations. . . In fact, Your Excellency has not called the possibility of the escape of supply ships to my attention since March, 1915."2 Secretary Lansing then concluded his careful and discriminating note, saying:

.

I have shown, I believe, that this Government's contention is supported not only by ample precedents extending through American and British relations since the early years of the Republic and by the analogy in the mobilization of armed forces near an international boundary, but also by the lack of a sufficient excuse for such an objectionable practice as I have had the unpleasant duty of bringing to Your Excellency's attention. I trust, therefore, that your Government will be willing to recognize my Government's contention to the extent of instructing His Majesty's cruisers to withdraw from the vicinity of the territorial waters of the United States and remain at such dis

'Official text, American Journal of International Law, Special Supplement, October, 1916, p. 384.

2 lbid., p. 385.

tances from American harbors and coasts as to avoid the annoying and inquisitorial methods which have compelled this Government to complain formally to Your Excellency's Government.'

It should be stated, before passing from this phase of the subject, that the Government of the United States, when it was a belligerent and when it was therefore against its interests, recognized the impropriety of lying off neutral ports in order to capture the vessels of its enemy. Secretary Seward informed Lord Lyons, the British Minister, under date of July 29, 1863, that the Secretary of the Navy had issued instructions that "it was not proper to make a convenience in any manner of neutral territory for the purpose of exercising the belligerent right of search or capture. A capture of a neutral vessel made after standing off and on a neutral harbor, or mouth of a river, or lying in wait within it for the purpose, although actually made beyond the neutral jurisdiction, would not be recognized as valid, and the right of search cannot properly be exercised when it is known previously that, whatever the event of the search, the capture would not be lawful." 2

It is believed that, notwithstanding embarrassing precedents, the United States is not open to the objection that British warships were permitted without protest to lie off American ports and to intercept neutral vessels.

SECTION 3. DISREGARD OF AMERICAN CITIZENSHIP PAPERS AND

PASSPORTS

In the early part of the war there were charges and countercharges of the violation of American passports, and the arrest by British authorities of any person bearing an American passport was promptly called to the attention of the American Government. The Department of State said, over Mr. Bryan's signature, that "American citizenship papers have been disregarded in a comparatively few instances by Great Britain, but the same is true of all the belligerents. Bearers of American passports have been arrested in all the countries at war. In every case of an apparent illegal arrest the United States Government has entered vigorous protests

Official text, American Journal of International Law, Special Supplement, October, 1916, pp. 385-386.

2 Mr. Seward, Secretary of State, to Lord Lyons, British Minister, July 29, 1863. Manuscript Notes to Great Britain, vol. 10, p. 175. Quoted from Moore, International Law Digest, vol. 7, p. 935.

with request for release. The Department does not know of any cases, except one or two which are still under investigation, in which naturalized Germans have not been released upon representations by this Government. There have, however, come to the Department's notice authentic cases in which American passports have been fraudulently obtained and used by certain German subjects."

Even at this early date it was clear that American passports were being systematically misused by German authorities, and ugly rumors were afloat that passports were fraudulently prepared by or with the connivance of German authorities in the United States. Mr. Bryan felt justified in saying, within the first six months of the war, that "The Department of Justice has recently apprehended at least four persons of German nationality who, it is alleged, obtained American passports under pretense of being American citizens and for the purpose of returning to Germany without molestation by her enemies during the voyage. Indeed, he continued, in language which subsequent events have unfortunately more than justified, "There are indications that a systematic plan has been devised to obtain American passports through fraud for the purpose of securing safe passage for German officers and reservists desiring to return to Germany."

It is not necessary to dwell upon this phase of the subject to show how vigilant and how vigorous the Government was in protesting the arrest of bearers of American passports, as the Department has solemnly assured the American public and foreign Nations by the publication of this note that this is so. In view of judicial proceedings which were begun in American courts, taxing German subjects with fraudulently procuring and manufacturing passports in the United States in furtherance of German interests during the war, and the implication of officials of the German Embassy in such fraudulent transactions, the conviction of persons indicted who had coöperated with and worked under the orders of officials of the Imperial German Embassy, and the dismissal of the German naval and military attachés for complicity in such transactions, and others even more reprehensible, it does not seem to be necessary to descant upon this subject at the instance of charges preferred by German officials or German sympathizers in the United States.

1 Official text, American Journal of International Law, Special Supplement, July, 1915, p. 262.