the central powers. On the contrary, their contention appears to be that, as "genuine correspondence" is under conventional stipulation "inviolable," mail matter of other classes is subject to detention and examination. While the Government of the United States agrees that "genuine correspondence" mail is inviolable, it does not admit that belligerents may search other private sea-borne mails for any other purpose than to discover whether they contain articles of enemy ownership carried on belligerent vessels or articles of contraband transmitted under sealed cover as letter mail, though they may intercept at sea all mails coming out of and going into ports of the enemy's coasts which are effectively blockaded. The Governments of the United States, Great Britain, and France, however, appear to be in substantial agreement as to principle. The method of applying the principle is the chief cause of difference.

Though giving assurances that they consider "genuine correspondence" to be "inviolable," and that they will, true to their engagements," refrain "on the high seas" from seizing and confiscating such correspondence, the allied Governments proceed to deprive neutral Governments of the benefits of these assurances by seizing and confiscating mail from vessels in port instead of at sea. They compel neutral ships without just cause to enter their own ports or they induce shipping lines, through some form of duress, to send their mail ships via British ports, or they detain all vessels merely calling at British ports, thus acquiring by force or unjustifiable means an illegal jurisdiction. Acting upon this enforced_jurisdiction, the authorities remove all mails, genuine correspondence as well as post parcels, take them to London, where every piece, even though of neutral origin and destination, is opened and critically examined to determine the 'sincerity of their character," in accordance with the interpretation given that undefined phrase by the British and French censors. Finally the expurgated remainder is forwarded, frequently after irreparable delay, to its destination. Ships are detained en route to or from the United States or to or from other neutral countries, and mails are held and delayed for several days and, in some cases, for weeks and even months, even though not routed to ports of North Europe via British ports. This has been the procedure which has been practiced since the announcement of February 15, 1916. To some extent the same practice was followed before that date, calling forth the protest of this Government on January 4, 1916. But to that protest the memorandum under acknowledgment makes no reference and is entirely unresponsive. The Government of the United States must again insist with emphasis that the British and French Governments do not obtain rightful jurisdiction of ships by forcing or inducing them to visit their ports for the purpose of seizing their mails, or thereby obtain greater belligerent rights as to such ships than they could exercise on the high

seas; for there is, in the opinion of the Government of the United States, no legal distinction between the seizure of mails at sea, which is announced as abandoned, and their seizure from vessels voluntarily or involuntarily in port. The British and French practice amounts to an unwarranted limitation on the use by neutrals of the world's highway for the transmission of correspondence. The practice actually followed by the allied Powers must be said to justify the conclusion, therefore, that the announcement of February 15th was merely notice that one illegal practice had been abandoned to make place for the development of another more onerous and vexatious in character.1

It should be said in this connection, before leaving this phase of the subject, that, although the allied Powers stated themselves as driven to the censorship of mails by Germany's illegal conduct of the war, they were nevertheless unable to cite a single instance in which Germany had tampered with the mails other than those passing through its territorial jurisdiction. It is safe to assume, therefore, that Germany did not censor mails. Indeed, in the case of the French steamer Floride, sunk early in 1915, the Postmaster General stated that "the German auxiliary cruiser Prinz Eitel Friedrich delivered to the postmaster at Newport News, Va., on March 12, 144 mail bags for places in South America which had been transshipped from the French steamer Floride to the said cruiser before it sank the steamer. The despatches, which appeared to be intact, were sent to the New York office, whence they were forwarded to destination in the same condition and at the first opportunity." It is true that mail matter on board ships sunk by German vessels was lost, but it appears to be beyond controversy that, although mails went down. and were lost with the vessels carrying them, the German authorities neither set nor followed the example of the Allies in the censorship of mails. And it should be further noted in this connection that the proposition to free mail from censorship upon the high seas adopted by the Second Hague Peace Conference was upon the motion of the Imperial German delegation,' that it was

2

1 Official text, American Journal of International Law, Special Supplement, October, 1916, pp. 413-414.

2 Ibid., p. 410.

On introducing the German proposal, Dr. Kriege said, on behalf of the Imperial German Government:

Il y a encore une autre question qui se rattache à celle de la contrebande et au sujet de laquelle la Délégation allemande a déposé une proposition spéciale. Il s'agit de la protection de la correspondance postale en temps de guerre maritime. Nous pensons qu'il y aurait avantage à établir le principe que la correspondance postale expédiée par mer est inviolable.

Les relations postales ont, à notre époque, une telle importance, il y a

supported by Great Britain and France, signed by the representatives of these countries, and ratified by Great Britain on November 27, 1909, and by France on October 7, 1910. The articles in question to be found in The Hague Convention restricting the right of capture in naval war are thus worded:

The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay.

The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port. (Article 1.)

The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible. (Article 2.) 1

1

tant d'intérêts, commerciaux et autres, basés sur le service régulier de la correspondance, qu'il est grandement désirable de la mettre à l'abri des perturbations qui pourraient être causées par la guerre maritime. De l'autré coté, il n'est guère probable que les belligérants, qui disposent pour la transmission de leurs dépêches des voies de la télégraphie et de la radiotélégraphie, aient recours au trafic ordinaire des postes en vue des communications officielles qui se rapportent aux opérations militaires. Le profit à retirer pour les belligérants du contrôle du service postal, n'est donc point en rapport avec les préjudices que l'exercice de ce contrôle entraîne pour le commerce légitime.

Le moyen le plus efficace pour atteindre au but, consisterait à exonérer de tout contrôle les navires qui font le service postal régulier. Cependant, cela ne parait guère possible. Il faudrait se borner à édicter que les belligérants doivent tenir compte de leur caractère special et s'abstenir autant que possible, d'exercer sur eux le droit de visite. Mais l'inviolabilité devrait être absolue à l'égard de la correspondance même, quelle que fût la nationalité du navire qui la porte. Les belligérants n'auraient pas le droit, en cas de saisie d'un paquebot-poste, de desceller, dans un but de contrôle, les sacs qui contiennent les lettres, et ils seraient tenus de prendre les mesures nécessaires pour assurer leur prompte remise à destination. (Deuxième Conférence de la Paix, 1907, tome iii, pp. 860-861.)

1 The Hague Conventions and Declarations of 1899 and 1907, pp. 182-183.

CHAPTER V

UNLAWFUL SEIZURE OF PERSONS UPON THE

HIGH SEAS

SECTION 1. SEARCHING OF AMERICAN VESSELS FOR GERMAN AND AUSTRIAN SUBJECTS ON THE HIGH SEAS AND IN TERRI

TORIAL WATERS OF A BELLIGERENT

Secretary Bryan's reply on this matter is very brief and to the point. It states the facts of two leading cases which had then occurred, to which a few other instances might be added, and it lays down the law admirably and within the compass of a couple of paragraphs. This portion of the letter is therefore quoted in full:

So far as this Government has been informed, no American vessels on the high seas, with two exceptions, have been detained or searched by belligerent warships for German and Austrian subjects. One of the exceptions to which reference is made is now the subject of a rigid investigation, and vigorous representations have been made to the offending Government. The other exception, where certain German passengers were made to sign a promise not to take part in the war, has been brought to the attention of the offending Government with a declaration that such procedure, if true, is an unwarranted exercise of jurisdiction over American vessels in which this Government will not acquiesce.

An American private vessel entering voluntarily the territorial waters of a belligerent becomes subject to its municipal laws, as do the persons on board the vessel.

There have appeared in certain publications the assertion that failure to protest in these cases is an abandonment of the principle for which the United States went to war in 1812. If the failure to protest were true, which it is not, the principle involved is entirely different from the one appealed to against unjustifiable impressment of Americans in the British Navy in time of peace.

The cases to which reference is made are those of August Piepen

1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 256-257.

brink and The Metapan, and the facts in each case will be given, with a reference to the law on the subject.

One August Piepenbrink was serving as steward on board the American ship Windber, from which he was removed by the French cruiser Condé when both vessels were upon the high seas, taken to Kingston in the island of Jamaica and imprisoned by the British. authorities as a German subject and therefore an enemy of the Allies. It appears from the evidence in the case that Piepenbrink was in fact a German subject, for although he had declared his intention to become an American citizen, he had not divested himself of German nationality by taking out his final papers, that is to say, by becoming an American citizen according to the laws of the United States. We do not need to speculate as to his status, because he was born in Hanover after its absorption by Prussia in 1866, and the so-called Bancroft Treaty of 1868 with the North German Confederation, of which Prussia then formed a part, specifically declares that "the declaration of the intention to become a citizen of one or the other country has not for either party the effect of naturalization." Piepenbrink, therefore, was not a citizen of the United States. He had no right to claim the protection of the United States, and it was for the United States to determine whether and to what degree it should use its good offices in his behalf.

There was, however, in this case a very real ground for protest, irrespective of nationality or citizenship, namely, the fact that Piepenbrink was a member of the crew of an American ship; the right of the United States to protest would have been the same had he been a passenger instead of a member of the crew, and the American ship Windber, within the jurisdiction of the United States or upon the high seas, was subject to the exclusive jurisdiction of the United States. A neutral merchantman may be, in time of war, visited and searched by the belligerent in order to see whether it is or is not performing its neutral duties, but no person, whether member of the crew or passenger, can legally be removed from the vessel without a violation of the law of Nations or without a general or special treaty granting the alleged right.

The United States thought otherwise in 1861, or rather Captain Wilkes of The San Jacinto was of a contrary opinion, and the Government of the United States sought to justify his act in stopping and removing from the steamer Trent, a British and, therefore, a

1 Treaties, Conventions, etc., between the United States of America and other powers, 1776-1900 [compiled by Wm. M. Malloy (Senate d. 357, 61st Cong., 2d sess.); Washington, 1910, 2 vols.], vol. 2, p. 1299.