There is danger that it may drag along and finally “peter out” leaving
the issue deadlocked; in which case there will be many clamoring to know
why we do not hold Germany to accountability.
War between the United States and Germany is not to be thought of now,
for the reason, if no other, that such a war could not be conducted at
this time.
Severance of diplomatic relations would “get us nothing,” except
criticism from our opponents for producing that situation, without our
having the countervailing benefit of an aroused national spirit.
The attitude of “not speaking” is one that provokes no enthusiasm and is
difficult to maintain with credit.
Moreover in that event we would have to acquiesce in the Orders in
Council and decrees of Great Britain and the Allies with reference to
trade to Europe and submit our commerce to be sifted, doled out and
manipulated to serve European politics.
I submit some notes on the late German note.
[Enclosure]
Notes by the Solicitor for the Department of
State (Johnson) on
the Second German Note in the “Lusitania” Correspondence
[Washington,]
July 16, 1915.
There will hardly be two opinions whether the United States is to
insist that Germany reprobate the destruction of the lives of
American citizens through the sinking of the Lusitania by its submarine.
But presupposing this is done—may the United States, without
compromise or surrender of the principle, in its essence, for which
it has contended, consider proposals for arrangements for setting
aside a certain number of vessels for the carriage of passengers in
European waters, the same to be free from molestation and danger
from war craft?
“The Government of the United States is, of course, not oblivious to
the great changes which have occurred in the conditions and means of
naval warfare since the rules hitherto governing legal blockade were
formulated. It might be ready to admit that the old form of ‘close’
blockade with its cordon of ships in the immediate offing of
[Page 461]
the blockaded ports is no
longer practicable in face of an enemy possessing the means and
opportunity to make an effective defense by the use of submarines,
mines and air craft; but it can hardly be maintained that, whatever
form of effective blockade may be made use of, it is impossible to
conform at least to the spirit and principles of the established
rules of war. If the necessities of the case should seem to render
it imperative that the cordon of blockading vessels be extended
across the approaches to any neighboring neutral port or country, it
would seem clear that it would still be easily practicable to comply
with the well-recognized and reasonable prohibition of international
law against the blockading of neutral ports by according free
admission and exit to all lawful traffic with neutral ports through
the blockading cordon. Such procedure need not conflict in any
respect with the rights of the belligerent maintaining the blockade
since the right would remain with the blockading vessels to visit
and search all ships either entering or leaving the neutral
territory which they were in fact, but not of right, investing.”
(Note of the United States to the British Government of March
30,35 relating to the British Order in Council
of March 11th.)
I interpret these expressions as indicative of a disposition on the
part of the United States Government, in view of the recent great
changes in the means of warfare, to admit reasonable modifications
in the application, in practice, of the established rules of
international usage, when the essence of the right of belligerent
and neutral, respectively, will be preserved.
Presumably, the view of the author of the paragraph just quoted
comprehended the right of Great Britain to establish and maintain a
blockade of German ports and an appreciation that rigid compliance
with the established and recognized form and manner of blockade
would not be insisted on, if to do so the right of blockade would be
lost; provided always, and of course, that the substance of the
right of the neutral is preserved.
Moreover Great Britain has insisted that the established mode of
visit and search of merchant ships on the high seas can no longer be
followed on account of the danger to the searching ship from attack
by German submarine war craft while such visit and search is taking
place, and has insisted upon taking neutral ships wherever found in
European waters to British or allied ports, and there detaining them
while search for contraband or illicit goods goes on; her contention
being that she should not be expected to forego the substantial
right of visit and search, which she would have to do, she says, if
she pursued the practice in that matter hitherto known to
international usage.
The right of a belligerent to overtake and destroy, in so far as
neutrals are concerned, enemy merchant ships carrying contraband
[Page 462]
or munitions of war is to
be admitted. (Personally I abhor the whole conception of war which
comprehends war on private owned merchant ships, when flying the
flag of the enemy, except in the case of munitions and supplies of
war, which latter I think may well be summarily dispatched wherever
met with.) But we are dealing with a situation where one belligerent
insists that its substantial right to overtake and destroy enemy
ships carrying munitions of war with which to attack it, is not to
be defeated entirely by the presence on such ship of neutral
passengers.
It is hardly correct to say that the neutral has the right,
unlimited, of traveling on merchant ships of belligerents carrying
contraband and munitions of war. A neutral does not have the right
to afford, by his presence, protection to such a ship or its cargo,
as we see from the admitted principle by which he is required to
abandon the ship when overtaken by the enemy—if afforded opportunity
to do so with reasonable safety; his right consists in the
opportunity to leave the ship in safety before it is sunk. His
presence affords no legal protection to the ship or its cargo.
The concurring right of the belligerent to take and destroy enemy
ships with their cargoes, and the right of those found aboard to be
taken off before the ship is destroyed, may coexist where naval
warfare is conducted by the ordinary ships of war; but, it seems,
this is not the case where the submarine is employed in the pursuit
of enemy merchantmen.
I pass up any discussion of what should be made, or may perhaps
finally become, the accepted rule of international law respecting
the operation of submarines as relating to merchant ships.
The question arises shall consideration be given to this change in
the instrumentalities of naval warfare, or shall we contend for the
right of our nationals to use any and all ships, including those
flying the flag of Germany’s enemy and carrying arms and munitions
of war, thereby, in a measure at least, extending protection to the
ship and its cargo except when overtaken by an ordinary warship
which is able to destroy the ship and at the same time furnish means
of escape to those on board.
It should not be overlooked that the protection insisted on for the
American traveler on a British ship from New York to Liverpool may
also be demanded for the American citizen on a British merchantman
loaded at Liverpool and bound for Havre with a full cargo of arms
and ammunition destined for immediate delivery to the troops of the
allies in the trenches.
Is it of the essence of the right of an
American citizen to travel in European waters that he be allowed
to take passage on any and all of the ships of the belligerents,
whatever may be their cargo or destination? I hardly think
so. If abundant facilities are furnished
[Page 463]
for the safe conveyance of our people in
European waters within the zone of hostilities, it seems to me there
would be no ground for complaint on the part of any American
citizens who might prefer a ship of the enemy carrying munitions of
war into the zone of hostilities.
Bearing in mind the views which have been expressed in the
correspondence with Great Britain respecting consideration to be
given to the momentous changes in the conditions and means of
warfare, I am impressed with the idea that if Germany will reprobate
the destruction of innocent lives through the attack of its
submarine upon the Lusitania and the
circumstances of its sinking, we should not close the door to the
consideration of proposals, if reasonable and practicable, for
setting aside an adequate number of ships upon which our people may
take passage and travel unmolested in European waters, those ships
not to carry mixed cargoes of babies and bullets.
