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

763.72/1863½

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

[Washington,] June 7, 1915.

Dear Mr. Secretary: I have read over carefully your letter to the President¹⁶ in regard to the redraft of the note to Germany, and, in compliance with your request, I offer the following comments:

In the paragraph beginning near the top of page 3, to which you refer, it seems to me that there is a measure of justice in your criticism, in that if the German Government agrees to in the future observe the practice of visiting vessels and removing the crews and passengers before sinking them, the question of war zone becomes of far less importance.

I think your comment upon the sentence relative to “adequate compensation” for the lives of two seamen lost on the Gulflight is well taken. It would be advisable to express just the sort of amends we expect, or else omit any reference to their death, in view of what we have said about the acceptance of liability by Germany.

In regard to your third comment, I agree with you that it would be well to change the latter part of the sentence, to which you refer. To my mind, it does not comport with diplomatic expression, and I am not at all sure how it would be rendered into German. It might needlessly offend the German Government. In any event, it is doubtful whether its force in the argument warrants the possible view which may be taken of it.

Your fourth comment, which begins in the fifth line from the bottom of page 2,¹⁷ I regret to say I cannot agree with.

I have had careful search made of the authorities in relation to the right of destroying enemy merchant vessels and I find none which justifies such destruction without first removing the crew and papers. The approach of a superior naval force is a ground for destruction of the vessel but not of the crew. I append an extract from Oppenheim, vol. 2, which is the most comprehensive and concise statement of the law.

In the War of 1812 we instructed our naval vessels to destroy prizes, and over 70 were burned. The practice was followed in the Crimean War, in the Civil War by the Confederates, in the Franco-Prussian War and the Russo-Japanese War. In all these cases the persons on board were removed before the vessels were destroyed.

I do not think that the approach of suspicious vessels to a captured vessel can in any way warrant the destroying of the vessel with persons on board. It justifies possibly the destruction of the vessel, but not the destruction of life.

A defense of this sort, so far as it is applied to the taking of human life, cannot be justly urged.

The fact of the approach of other vessels, even if true, is therefore entirely irrelevant.

Your fifth comment, which is in the last paragraph on page 3, I agree with.¹⁸

Your sixth comment in regard to the Lusitania, beginning at the bottom of page 3 and running over onto page 4,¹⁹ I also regret to disagree with, in that I do not think that if all the facts alleged by the German Government in its note were true, that they would be relevant to the real question at issue, which is a question of right. While I fully appreciate the decided advantage it would be to leave open a door of discussion as to the facts in the case, I cannot bring myself to admit that the facts are pertinent and entitled to investigation. The only question which might be considered as possible of investigation would be whether or not the Lusitania was an auxiliary of the British navy, but that appears to me so manifestly contradicted by the presence of passengers on board and the vessel clearing on its regular trade route, that it offers slender excuse for an inquiry.

I believe, my dear Mr. Secretary, that the foregoing comments cover those which you made in your letter, to which you directed my particular attention.

Faithfully yours,

Robert Lansing

[Enclosure]

Extract From L. Oppenheim, “International Law”²⁰

The Règlement international des prises maritimes of the Institute of International Law enumerates in Sec. 50 five cases in which destruction of the capture is allowed—namely (1) when the condition of the vessel and the weather make it impossible to keep the prize afloat; (2) when the vessel navigates so slowly that she cannot follow the captor and is therefore exposed to an easy recapture by the enemy; (3) when the approach of a superior enemy force creates the fear that the prize might be recaptured by the enemy; (4) when the captor cannot spare a prize crew; (5) when the port of adjudication to which the prize might be taken is too far from the spot where the capture was made. Be that as it may, in every case of destruction of the vessel the captor must remove crew, ship papers, and, if possible, the cargo, before the destruction of the prize, and must afterwards send crew, papers, and cargo to a port of a Prize Court for the purpose of satisfying the latter that both the capture and the destruction were lawful.

16. Supra.
17. See p. 446, par. 2, sentence beginning, “I think that in discussing the Falaba.”
18. See p. 447, par. 1.
19. See p. 447, par. 2.
20. Second edition (London and New York, 1912), vol. II, p. 244.