I should call to your special attention that these memoranda are sent so
that you may use the substance of the information contained in them, but
without quoting the memoranda in any way as being the statements of the
State Department, or otherwise referring to them as views of the
Department.
If the Department can be of further service to you, please do not
hesitate to let me know.
[Enclosure]
Memorandum on House Resolution 147
Par. (1) The actual
wording of the notice to neutral powers: regarding submarine warfare
dated February 10, 1916,26 is:
“In the circumstances set forth above enemy merchantmen armed
with guns no longer have any right to be considered as peaceable
vessels of commerce. Therefore the German naval forces will
receive orders within a short period, paying consideration to
the interests of neutrals, to treat such vessels as
belligerents. The German Government brings this state of things
to the knowledge of the neutral powers in order that they may
warn their nationals against continuing to entrust their persons
or property to armed merchantmen of the powers at war with the
German Empire.”
The preceding part of the declaration purports to show why armed
merchant vessels should be accorded such treatment.
Par. (2) The alleged
secret orders of the British Government were attached to the
declaration of February 10th as appendixes and though mailed to the
Department from Berlin have not as yet been received. Until they
have been received the nature of the orders is only known
imperfectly through press reports. It cannot be determined,
therefore, whether they substantiate the conclusions drawn from them
by the German Government as to the offensive armament which, it is
stated, has been placed on British merchant ships, and as to the
concealment of such armament while in neutral ports.
Par. (3). That a
“defensive” or “offensive” gun may shoot and destroy an enemy ship
is, of course, true; but the two kinds of guns may be distinguished
and, in fact, have been distinguished in naval warfare. Perhaps the
simplest rule to follow is that if the gun is used to begin attack
it is offensive, otherwise it is defensive, it being understood, of
course, that mere warning is not attack, and that attack to be
offensive must contain the element of an intention to destroy. But
it cannot be said that a mere intention to destroy, without an overt
act, is, in naval warfare sufficient to constitute an attack.
Par. (4) & (5) It is conceived that the interest of the
United States in the arming of merchant vessels against submarines
and the sinking of merchant vessels by submarines is twofold: the
protection of American citizens who may have been riding on board
the merchant vessels, and the broader question of humanity involved
in the wanton slaughter of noncombatants without warning or
opportunity to seek safety.
Par. (6) & (7) The distinction between “offensive” and
“defensive” has been pointed out above. True, the United States is
concerned [Page 345] in offering
American citizens “advice, counsel and assistance” in avoiding the
hazards of war, but the question is, what is the best possible
advice, counsel and assistance? The inference is that the warning in
this resolution is the best advice and assistance. This will be
discussed later.
Par. (8) The
assurances given by the German Government are dated September
1,27 October 5,28 November
29,29 1915, and
January 7, 1916.30 Copies of these assurances are attached. As to
these assurances it should be noted, that they were intended to
cover armed as well as unarmed ships (1) because the words “no
longer” in the German declaration of February 10th indicate that
armed merchantmen had been included in the previous announcement on
the submarine warfare; (2) because the assurance of January 7, 1916,
was given shortly after the sinking of the steamship Persia which was known by Germany to be
armed; (3) because the discussion of the Lusitania case for a time referred to the arms which she
was supposed to have had on board, as shown by the published
diplomatic correspondence; (4) because as indicated in the German
note of July 8th31 the alleged instructions of the British
Government to sea captains were known to the German Government some
months prior to the assurances of September 1, etc.
Par. (9) As the United
States should preserve its own “freedom of action” in case of war,
it is necessary to be particularly circumspect in the issuance of
any notice to American citizens in order to avoid the implication by
such a notice that the Government is admitting a practice which may
embarrass it later or approving a principle for which it can not
stand.
Par. (10) This
paragraph requests the President to warn Americans from traveling on
naval or merchant ships whether the latter carry offensive or
defensive guns, and to warn American citizens that they travel at
their own risk on such ships.
The objections to this course are: (1) that it is a useless procedure
to warn Americans not to travel on armed ships because the present
discussion of the question must have brought the matter home to
their minds more forcibly than could be done by any Congressional
resolution; (2) that American citizens can not be warned from
traveling on armed ships except upon the ground that it is merely
hazardous for them to do so without regard of the question of the
rights involved (and sufficient warning for this purpose has already
been given) or on the ground that they have no right to travel on
such [Page 346] vessels. If they have
a right to travel on such vessels, then to warn them that they
travel at their own risk is to take away from them a right which
belongs to them instead of defending a right which they are entitled
to enjoy; (3) that to give up a right of travel as a matter of
expediency is in a sense to approve the circumstances which force
such an expedient act, namely, because submarines will sink merchant
vessels without placing persons on board in safety. The consequence
would be to take up a position in favor of this kind of inhuman
warfare which the United States has denounced from the beginning and
to assume a position against carrying out the well-known and fully
established simple, practicable rules of naval warfare, which are
based on the immutable principles of humanity, that human life is to
be protected at sea when not engaged in resistance to belligerent
right to warn and visit and search; (4) the President, being the
spokesman of the United States in its relations with foreign powers
is carrying on negotiations with the belligerents and has been
carrying on such negotiations with a view to protecting and
maintaining the rights of American citizens. This is, up to the
point of declaration of war, under the American system of government
almost exclusively an executive function. For the Congress now to
interpose itself in these negotiations is disconcerting to say the
least to the efforts of the executive, is confusing to foreign
Governments and is invading the prerogatives of the President. In a
word, there is no just ground for Congressional interference in the
effort to change the Government’s position or to weaken its position
in the midst of pending diplomatic negotiations; (5) Congressional
action, in any event, cannot serve to change an international rule
or an international right. To say that American citizens shall
travel on armed ships at their own risk may absolve the Government
from responsibility to protect their lives and property from unjust
attack upon the high seas, but it would leave the United States in
the illogical position of warning Americans off of armed ships as a
matter of expediency but of allowing the same armed ships to enter
American ports and to be the recipients of American hospitality as
peaceful and harmless merchant traders. (6) finally, to begin now in
the midst of a war to give up a right as a matter of expediency is
to open the door for similar concessions to either one of the other
groups of opposing belligerents. A concession to one side might
immediately be called to the attention of the Government by the
other side with the request for some sort of concession to that side
in order to balance matters. The Government would thus be placed in
a most embarrassing position, for it would be subject to the charge
of [Page 347] having favored one of
the belligerents and refusing to favor the other belligerent—a
charge which amounts to saying that the United States had broken its
obligation as a neutral in the present war.
Par. (11) There is, of
course, no objection to a resolution asking for the transmittal of
documents so far as may not be incompatible with public interest,
but, as stated above, the appendixes containing the reported
photographic facsimiles of secret British instructions to
merchantmen have not as yet been received by the Department.
The Resolution states that this information is desired for its
assistance in performing its “constitutional duty of advising the
President of the United States with regard to foreign relations”.
The President as the executive of the nation is admittedly in charge
of the conduct of its foreign affairs and is responsible to the
country and not to Congress for his conduct of our relations with
foreign Governments. The only constitutional share which Congress
has in the conduct of foreign relations is the right delegated by
the Constitution to the Senate to approve all treaties between the
United States and foreign countries. It can not be said that the
House of Representatives has any right or duty under the
Constitution to impose its views in regard to diplomatic
negotiations upon a co-ordinate branch of the Government which is
charged with the conduct of such negotiations. This is quite
different from the share which the House of Representatives has in
the passage of acts of Congress which repudiate treaties or lay down
rules governing persons and property within or coming within the
jurisdiction of the United States. It is at least doubtful whether
Congress has authority to pass resolutions affecting the rights of
American citizens on the high seas on foreign vessels flying a
foreign flag and subject to foreign jurisdiction.
Par. (12) To say that
it is the determination to “uphold all American rights” is exactly
opposed to waiving the right which is attempted in paragraph (10) by
admonishing American citizens that they travel on armed ships at
their own risk. In the absence of proof that belligerent armed ships
are under Governmental control and direction with a view to
attacking submarines at sight it must be presumed that merchant
ships carrying a light armament may be legitimately used by American
citizens in the exercise of their rights freely to travel on the
high seas. What these rights are, as to armed ships, may be gathered
from the complete discussion to be found in the attached list of
references.32
