763.72/1847a
The Secretary of State to President Wilson
My Dear Mr. President: Responding to your generous request for suggestions as to the reply to be made to the German note, I beg to enclose some suggestions submitted by Mr. Lansing.86 I have asked him to amplify his statement by giving his opinion as to the points raised in the German note and will send that with comments when it is ready.
You will notice that in proposition one of his note, he leaves out the word “unarmed.” You will remember that he suggested the word “unresisting” in place of “unarmed.” I have asked him to give such authority as he can find on the distinction between “unarmed” and “unresisting”. He has given me a memorandum, dated June 2nd,87 which I enclose, but he will not be able to prepare today an opinion on the different propositions. I am asking, therefore, that you will allow me to submit a few suggestions and then tonight I will take time to go over the answer and send you a memorandum tomorrow covering all the points raised. I think that Mr. Lansing will by that time be able to complete the memorandum which he has in mind.
There are two thoughts which I beg to submit at this time: First, that we should not feel it necessary to make an immediate answer: (a) because it is more important that the answer should be wisely drawn than that it should be speedily sent, (b) that time itself is a factor of no mean importance. In our peace plan we have emphasized the advantage of time for investigation and deliberation. The matter with which we are dealing is one of the first magnitude. It involves questions, which have in time passed, furnished an excuse if not a cause for armed conflict. Our note to Germany, while unequivocally stating this Government’s position, was couched in friendly language and the German reply is in the same tone. There is apparently no desire on either part for war; and there is always [Page 420] hope of an amicable adjustment where neither side desires war. So much for the subject of time.
Second: It seems that the note can be properly subjected to legal treatment—that is, we can take up the different points raised by the German Government and, assuming that they are presented in good faith, treat them as we would if it were a case in court, drawing a distinction between material and immaterial propositions. In court, facts which are not material are met by a demurrer, which means that even if the proposition stated is true, it does not affect the issue. If the proposition presents [as] a fact something which if a fact would materially affect the issue, we can then answer the proposition if we believe the statement of fact to be erroneous, or investigate if we are not in the position to deny it. The above is merely a brief suggestion to accompany Mr. Lansing’s suggestion.
I do not agree with Mr. Lansing as to the propriety of using the word “unresisting” instead of “unarmed.” It seems to me that the character of the vessel is determined, not by whether she resists or not, but by whether she is armed or not. Take, for instance, the cruiser; the fact that she is armed raises the presumption that she will use her arms, therefore, she is not entitled to the same treatment as the unarmed vessel. If we use the word “unresisting” the attacking party would not be entitled to employ force until after the vessel had actually used her arms, which would give the vessel attacked a great advantage over the vessel attacking.
Neither do I agree with him as to the advisability of requiring the German Government [apparent omission] to the principles involved before we discuss the facts of this particular case. It is the custom of the State Department to investigate the facts before taking a position. In the case of the Lusitania we stated our position upon a state of facts as we understood them. If a question is raised as to the correctness of the assumed facts, I can see no reason why we should refuse to consider the question of facts. For instance, suppose the German Government had replied that our note was based upon the assumption that certain Americans were drowned by the sinking of the vessel, but that it was Germany’s understanding that no Americans were on the vessel and, therefore, none could have been drowned. If that was the fact questioned is there any reason why we should answer “you must first tell us what you would do in case American citizens were drowned and then we will discuss whether they were drowned or not”? If the facts which they set up are not material, that is if we could demur to them, we can so state, but I do not see how we can reasonably refuse to consider a question of fact when it is properly raised.
[Page 421]This I am writing in a hurry and I am simply thinking out loud. I want to go over the note carefully and take it up point by point, and then I shall be pleased to lay before you a more matured suggestion as to its treatment.
With assurances [etc.]
P. S. I suppose the German Ambassador brought before you the suggestion which he made to me, namely, that this question of fact is raised in order to give the German Government a plausible excuse for accepting our position if the grounds upon which its action was based proved to be erroneous. If Germany is really looking for a way out we cannot do otherwise than assist her. This might not be to the advantage of sensational newspapers, but I am sure that it would meet with unanimous approval throughout the country.