To the Honorable the Secretary of the Navy,
August 19, 1914.
Washington, D. C.
On August 12th I addressed to you a telegram of which the following is a copy:
Secretary of the Navy,
Washington, D. C.
The Marconi Wireless Telegraph Company of America respectfully represents to the Secretary of the Navy that it is receiving messages to be sent by wireless to foreign countries; that the censor of the Navy Department assumes the right to forbid the sending of certain of such messages; that this company is under the ordinary duty of a forwarder of communications when paid for; that we are aware of no statute of the United States or of any treaty or rule of international law which justifies the intervention of a government censor or the stoppage of this company in sending messages in the ordinary way.
The Public's Rights Involved
We ask, therefore, to be referred to the legal authority under which your department assumes such right of censorship. We wish to respect the policy of our own government, but when our corporate rights and duty and the rights of the public are involved, we must respect only the law which governs the case.
On August 13th I had the honor to receive from you a reply as follows:
If you will send representative to Washington will be glad to take up before Attorney-General questions of law relating to the censorship of wireless messages by Navy Department under executive order of the President dated August 5th.
(Signed) JOSEPHUS DANIELS, Secretary of the Navy.
Authority for Censorship Sought
The object of my telegram was to obtain from your Department a statement of the legal authority under which you had instituted and were exercising a censorship in the radio stations of the Marconi Wireless Telegraph Company of America. At that time I was unable to refer to any statute, treaty, or rule of international law which justified such an intervention on the part of the Executive Department with the business of my company. At the same time I recognized the propriety of the Executive Department endeavoring to the utmost to enforce the obligations of international law incumbent upon this Government as a neutral in the present state of war in Europe, and if there had been any authority to which you could have referred me justifying such intervention by your Department, I should have been glad to have had it pointed out to me. In the absence of any affirmative claim of legal authority on behalf of your Department, it would seem to be unnecessary to discuss directly with the Attorney-General questions of law which might be considered pertinent, when no such questions had been raised by any formal citation or statute or other legal rule of action.
However, as meeting your evident desire to have our views submitted to the Department of Justice, I am now stating to you the opinion which this company holds with reference to the subject under discussion.
The matter divides itself into two parts:
In the first place, is there any treaty, rule of international law, or statute of the United States which forbids a wireless telegraph corporation engaged in business in the United States to transmit messages from its stations in the United States to ships or land stations of any of the belligerents engaged in the present war?
The question is not whether the United States could act in this capacity, but whether a private corporation or a private individual engaged in carrying on such a business for commercial purposes may lawfully communicate in this way.
The statutes of the United States have prescribed with particularity the things which may not be done within their territorial boundary by private individuals in violation of neutrality. No statutory inhibition is placed upon wireless or other communication with the ships or stations of belligerents. Nevertheless, statutes regulating wireless telegraphy have been recently passed, and if Congress had been of the opinion that a regulation of this kind is necessary, it would doubtless have made such a provision in the law. Its failure to do so indicates the desire of the legislature to have communication under such circumstances as I have mentioned free.
No Rule Forbidding Communications From U. S.
There is no rule of international law that forbids communication between a neutral country and a belligerent in a foreign war. The people of this country are free to carry on with any of the European countries now in conflict, trade and commerce, to ship them arms, material of war, food supplies and other commodities which, if captured by an enemy, could be declared contraband of war. Telegraph and cable companies, railroad companies, steamships and mails from the United States are all engaged in direct trade and commerce with some or all of the belligerent powers of Europe, and there is no duty incumbent on the Executive to interfere with or prevent such trade, commerce or communication.
The Company Bound to Send Messages
Of course, if a wireless station were being operated by one of the belligerent powers from a neutral base in this country, a different question would arise, but the Marconi Company is an American corporation, has been engaged in business for years, its stations are licensed by the Department of Commerce, and it is, besides, a public service corporation bound to accept and send messages when proffered payment therefore.
I submit, therefore, that the transmission of radio telegrams from the wireless stations of the Marconi Company in America to steamships or land stations of any of the belligerents is not unlawful under the statutes of the United States, and is not in violation of any rule of international law.
In the second place, if it be assumed that in some respects or to some extent the Marconi Company were under legal duty not to send dispatches of a certain character or to certain destinations because such sending is in violation of some law of the United States rendering it liable to indictment; nevertheless, there exists no legal authority for the Navy Department, or any other department of the Government, to institute and maintain a censorship over the messages delivered at the stations of the Marconi Company for transmission. The fact that an individual carrying on a lawful business may possibly violate a criminal statute does not authorize the Executive Departments, in the absence of statutory enactment, to establish a censor over his business in order to prevent the commission of a crime. It would be quite as justifiable for the Government to place a censor in every newspaper office in order to see that no seditious article or criminal libel is printed. A person or corporation engaged in trade or commerce as a transmitter of messages or carrier of goods is liable for violations of the law, but is not subject, in the absence of a statute expressly authorizing it to governmental inspection beforehand. A system of censorship is antagonistic to that regulated liberty of action which is the basis of our free government. Such a system could be justified only when our own government is engaged in war and it would then be an exercise of martial, not of civil, law. A censor, determining upon his own judgment whether a proposed act is lawful or unlawful, and permitting or forbidding it accordingly, assumes the functions of a court of justice, but without the right of appeal. In effect, he issues restraining orders of his own motion against parties that are unheard, and with no opportunity for future correction or reimbursement for damages.
This company favors a strict enforcement of our national duty as a neutral, but does not think that it is justifiable to broaden the scope of neutrality by adding new rules not sanctioned by general public law, especially when such new rules operate to the injury of private concerns carrying on trade and commerce, and thus augment those unavoidable indirect damages which are suffered by the people of a neutral nation on account of a deplorable war status between other powers.