Papers Relating to the Foreign Relations of the United States, The Lansing Papers, 1914–1920, Volume I

763.72/1865½

The Counselor for the Department of State (Lansing) to the Secretary of State

[Washington,] June 7, 1915.

Dear Mr. Secretary: I enclose herewith the President’s draft of a note to Germany with suggested changes indicated by underlining and parentheses.⁹⁹ The underlined portions indicate new matter or changed phraseology, and portions within parentheses indicate suggested omissions. I enclose also a memorandum¹ on certain of the suggestions which require explanation.

Faithfully yours,

Robert Lansing

[Enclosure]

Draft Instruction to the Ambassador in Germany (Gerard)

You are instructed to deliver textually the following note to the Minister of Foreign Affairs.

In compliance with Your Excellency’s request I did not fail to transmit to my Government immediately upon their receipt your note of May 28th² in reply to my note of May 15th [13th]³ and your supplementary note of June 1st⁴ setting forth the conclusions so far as reached by the Imperial German Government concerning the attacks on the American steamers Cushing and Gulflight. I am now instructed by my Government to communicate the following in reply:

[Allow me to acknowledge the receipt of your note of the twenty-eighth of May, transmitted through the Honourable James W. Gerard, Ambassador of the United States of America near the Imperial German Government, in answer to the note I had the honour to address to the Imperial German Government on the thirteenth of May on behalf of the Government of the United States, and also the receipt of your supplementary note of the first of June communicating the conclusions of the Imperial German Government, so far as arrived at, concerning the attacks on the steamers Cushing and. Gulflight.]

The Government of the United States notes with gratification the full recognition by the Imperial German Government, in discussing the cases of these two steamers, of the principle of the freedom of all parts of the open sea to neutral ships and the frank willingness of the Imperial German Government to acknowledge and meet its liability where the fact of attack upon neutral ships “which have not been guilty of any hostile act” by German [those in control of its] aircraft or vessels of war is satisfactorily established and the Government, of the United States will in due [of] course lay before the Imperial German Government, as it requests, full information concerning the attack on the steamer Cushing.

The Government of the United States cannot turn away from the discussion of these cases without again very earnestly calling the attention of the Imperial German Government to the fact, that its attempt [the policy of the Imperial German Government in seeking] to establish a war zone upon the high seas which neutral vessels are warned that they will enter at their peril, itself constitutes a very grave and [quite] unprecedented infringement upon the freedom of the seas and the rights of neutral nations and their citizens, and, [is sure] if persisted in, will [to] continue to be fruitful of fatal and tragical mistakes such as these of the Gulflight and Cushing. This Government [It] therefore urges upon the Imperial German. Government the necessity for a reconsideration of the whole situation. The submarine attack upon the steamer Gulflight resulted not merely in damage to the vessel but also in the loss of the lives [life] of two of her seamen, and for [such] loss of life in such circumstances no adequate compensation is possible. The freedom of the seas, for which the Imperial German Government is contending, cannot be vindicated by [a] violations of that freedom on the part of that great Government [itself].

With regard to the sinking [case] of the steamer Falaba, by [upon] which an American citizen lost his life, the Government of the United States is surprised to find the Imperial German Government contending that an effort on the part of a merchantman to escape capture and secure assistance alters the obligation of the officer seeking to make the capture in respect of the safety of the lives of those on board the merchantman although the vessel had ceased her attempt to escape when torpedoed. These are not new circumstances. They have been in the minds of statesmen and of international jurists [lawyers] throughout the development of naval warfare, and the Government of the United States does not understand that they have ever been held to alter the principles of humanity upon which it has insisted. Nothing but actual forcible resistance or continued efforts to escape by flight when ordered to stop for the purpose of visit on the part of the merchantman has ever been held to forfeit the lives of her passengers or crew. The Government of the United States, however, does not understand that the Imperial German Government is [as] seeking in this case to relieve itself of liability but only intends to set [as setting] forth the circumstances which led the commander of the submarine to allow himself to be hurried into the course which he took.

Your Excellency’s note, in discussing the loss of American lives resulting from the sinking of [on] the steamship Lusitania, adverts [speaks] at some length to [of] certain information which the Imperial German Government has received with regard to the character and outfit of that vessel, and [which] Your Excellency expresses the fear that this information [fears] may not have been brought to the attention of the Government of the United States. It is asserted in the note that [speaks of] the Lusitania was undoubtedly [as having been] equipped with masked guns, supplied with trained gunners and special ammunition, transporting troops from Canada, carrying a cargo not permitted under the laws of the United States to a vessel also carrying passengers, and serving, in virtual effect, as an auxiliary to the [armed] naval forces of Great Britain. Fortunately these are matters concerning which the Government of the United States is in a position to give the Imperial German Government authoritative information. Of the [Such] facts asserted in Your Excellency’s note, if true, the Government of the United States would have been [is] bound to take official cognizance [of] in performing its recognized duty as a neutral power and in enforcing its national laws. It was its duty to see to it that the Lusitania was not armed for offensive action, that she was not serving as a transport, that she did not carry a cargo prohibited by the statutes [laws] of the United States, and that, if in fact she was a naval vessel [in the service of the navy] of Great Britain, she should not receive clearance [papers] as a merchantman; and of course it performed that duty and enforced its statutes with scrupulous vigilance through its regularly constituted officials. It is able, therefore, to assure the Imperial German Government that it has been misinformed.

Whatever may be the contentions of the Imperial German Government regarding the carriage of contraband of war on board the Lusitania or regarding the explosion of that material by the torpedo, it need only be said that these contentions are irrelevant to the question of the legality of the methods used by the German naval authorities in sinking the vessel.

But the sinking of these [this] passenger ships involves principles of humanity which throw into the background any special circumstances of detail that may be thought to affect [have affected] the case, principles which lift it, as the Imperial German Government will no doubt be quick to recognize and acknowledge, out of the class of ordinary subjects of diplomatic discussion [diplomacy] or of international controversy [obligation]. Whatever be the other facts, the principal fact is that a great steamer, primarily and chiefly a conveyance for passengers, and carrying more than a thousand souls who had no part or lot in the conduct of the war, was torpedoed and sunk [sent to the bottom] without so much as a challenge or a warning, and that men, women, and children were sent to their death in circumstances unparalleled in modern warfare. The fact that more than one hundred American citizens were among those who perished makes it the duty of the Government of the United States to speak of these things and once more, with solemn emphasis, to call the attention of the Imperial German Government to the grave responsibility which the Government of the United States conceives that it has [it to have] incurred in this tragic occurrence. [Only her actual resistance to capture or refusal to stop when ordered to do so for the purpose of visit could have afforded the commander of the submarine any justification for so much as putting the lives of those on board the ship in jeopardy. This principle the Government of the United States understands the explicit instructions issued on August 3, 1914, by [of] the Imperial German Admiralty to its commanders at sea to have recognized and embodied, as do the naval codes of all other nations, and upon it every traveller and seaman had a right to depend.]⁵

[The Government of the United States cannot too often or too earnestly draw the attention of the Imperial German Government back to this, its chief and only contention]^5a and to the indisputable principle upon which that responsibility [it] rests. The Government of the United States [It conceives that it] is contending for something much greater than mere rights of property or privileges of commerce. It is contending for nothing less high and sacred than the rights of humanity, which every government [nation] honours itself in respecting and which no government [nation] can with honour resign on behalf of those under its care and authority. No case could more vividly or thoroughly demonstrate than does this case of the Lusitania the overwhelming argument against the use of submarines against merchantmen where visit and search are impracticable and where the humane rules [principles] of international law are impossible of application. Only her actual resistance to capture or refusal to stop when ordered to do so for the purpose of visit could have afforded the commander of the submarine any justification for so much as putting the lives of those on board the ship in jeopardy. This principle the Government of the United States understands the explicit instructions issued on August 3, 1914, by [of] the Imperial German Admiralty to its commanders at sea to have recognized and embodied, as do the naval codes of all other nations, and upon it every traveller and seaman had a right to depend. It is upon this principle of humanity as well as of law founded upon this principle that the United States must stand and stand without compromise or abatement of its rights.

The Government of the United States is happy to observe that Your Excellency’s note closes with the intimation that the Imperial German Government is willing, now as before, to accept the good offices of the United States in an attempt to come to an understanding with the Government of Great Britain by which the character and conditions of the war upon the sea may be changed. The Government of the United States would consider it a privilege thus to serve its friends and the world. It stands ready at any time to convey to either government any intimation or suggestion the other may be willing to have it convey and cordially invites the Imperial German Government to make use of its services in this way at its convenience. The whole world is concerned in anything that may bring about even a partial accommodation of interests or in any way mitigate the terrors of the present distressing conflict.

[In the meantime, whatever arrangement [action] may happily be made [taken as] between the parties to the war, and whatever may in the opinion of the Imperial German Government have been the provocation or the circumstantial justification for the past acts of its commanders at sea, the Government of the United States confidently looks to see the justice and humanity of the Government of Germany vindicated in all cases where Americans have been wronged or their rights as neutrals invaded.]

The Government of the United States therefore very earnestly and very solemnly renews the representations of its note transmitted to the German Imperial Government on the fifteenth [of the thirteenth] of May, and relies in these representations [not only] upon the principles of humanity and the universally recognized understandings of international law [but also upon the explicit covenants of the treaty of 1828 between the United States and the Kingdom of Prussia.]⁶

99. Actually, brackets were used by Mr. Lansing rather than parentheses. For text of the note as sent, see Foreign Relations, 1915, supp., p. 436.
1. Not printed.
2. Foreign Relations, 1915, supp., p. 419.
3. Ibid., p. 393.
4. Ibid., p. 431.
5. A marginal notation to the two preceding sentences reads, “Transferred to page 10.” See line 15 of the following paragraph.
6. Apparently this was included in the marginal notation as part of the matter to be transferred to page 10 of the draft, but was not transferred.
6. Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. 3, p. 427.