763.72/1849b
The Secretary of State to President Wilson
My Dear Mr. President: I have gone over the note carefully88 and beg to submit the following suggestions. The first paragraph of the note, after the one expressing a desire to contribute to the clearing up of the misunderstanding, takes up the cases of the Cushing and Gulflight and explains that there is no intention to injure neutral vessels and that an apology will be offered and reparation made for any injury done by mistake. The suggestion is then made that the investigations made by the parties may be supplemented by the investigation provided for in The Hague Convention. Where they disavow any intention to attack a neutral vessel and offer apology and reparation, it seems to me that we are justified in accepting such an answer, except where life is lost. In our note we specifically assert this principle. In the case of the Cushing no lives were lost. In the case of the Gulflight two of the crew jumped overboard and were drowned. I presume that the manner of death would not change the rule, since the men jumped with a view to saving their lives and may be supposed to have acted upon what to them seemed the best means of escape after the ship was struck.
In the case of the Gulflight it may be necessary to consider the fact that the ship contained contraband of war and was being convoyed by two British vessels. The German Government reports that the commander of the submarine did not see the flag until after the order was given to fire the torpedo. Under all the circumstances, it seems to me, that in this case we can afford to continue investigation with a view to securing suitable reparation.
The sinking of the Falaba presents a different issue. The sinking of the steamer was intentional and the German Government affirms that the commander had the intention of allowing the passengers and crew “ample opportunity to save themselves.” This indicates a recognition of the rule in regard to dealing with prize ships. It is asserted that ten minutes were given and that the time was extended to twenty-three, and then as an excuse for not giving more time, it is stated that “suspicious steamers were hurrying to the aid of the Falaba.” The question raised here is whether the coming of steamers to the rescue relieved the submarine commander of the obligation to give sufficient time for the crew to escape. In other words, is the sinking of the ship a greater importance than the rescue of the passengers? I shall ask Mr. Lansing to look up the [Page 423] authorities for this question must often have been raised. As the taking of prizes is an old custom, it must frequently have occurred that ships have come to the rescue of a merchantman that has been overtaken. In such case has the attacking ship the right to sink the vessel, passengers and all rather than allow the prize to escape? As we have no information as to the “suspicious steamers”, might it not be well to ask further information on this subject, and in so doing ask whether we are to understand that the German Government asserts as a rule of international law, that the right to sink the prize of [is] paramount to the obligation to allow the passengers time to escape—that being the real issue presented in the Falaba case. If on investigation of authorities, we find that the approach of rescuing vessels does not justify sinking the prize we can so state, an investigation of these facts being in that case unnecessary.
We cannot well object to arbitration where arbitration is possible. Neither can we object to investigation in any case. Our thirty treaties commit us to the doctrine of investigation in all cases and since this form of treaty was offered to Germany and the principle accepted by her (Germany was the twelfth nation to accept the principle) we could not consistently refuse to apply this document [doctrine?] to all questions that may arise between us. It seems to me that these treaties not only furnish us the most plausible excuse that we can find for investigation, but leave us no valid excuse for not resorting to the plan. Nothing could more forcibly emphasize the value of this peace plan than the employment of it in this case, and now that we have stated our position and received Germany’s reply, the objection urged against making the statement at the time the note was sent would not seem to apply. The use of this idea at this time might even exert a profound influence upon the making of the treaty between belligerent nations at the end of the war. The plan for investigation of all difficulties is the simplest plan that can be found for dealing with disputed questions and, though simple, gives the greatest promise of effectiveness.
When Mr. Lansing finishes his suggestions in regard to the excuses given for the sinking of the Lusitania, I will prepare a comment on each one of the excuses. In dealing with the Lusitania, it is, in my judgment, necessary to bear in mind that our only concern is with the protection of our people. We have not felt called upon to express an opinion on submarine warfare when other vessels not bearing Americans have been sunk. Whatever views we may have as to the moral character of the means employed by the belligerents, we do not feel it our duty to express opinions merely for the purpose of announcing our views. We could, of course, contribute something towards the formation of public opinion against the belligerent which employs [Page 424] methods which we might denounce and in favor of the belligerent which was the victim of the methods so denounced, but even the most biased among our citizens would hardly feel justified in asking us to make [take?] any position merely for the purpose of helping one side or the other.
It seems to me that, having stated our position without equivocation, we are not only justified but compelled by duty to do what we can to prevent our citizens incurring unnecessary risks. The precedents for this are abundant. Take the case of a riot for instance, the authorities are not absolved from the duty of enforcing order and of punishing those guilty of violence, but as a matter of precaution, they restrain citizens from the exercise of their rights in order to prevent injuries that might otherwise be inflicted unintentionally. The bystander is always in danger when there is shooting upon the street and no government would feel justified in refusing to warn noncombatants away from the dangerous place, merely because the citizens ordinarily have the right to go upon the streets.
For the same reason we advised all American citizens to leave Mexico, not because they did not have a right to stay there, but because we thought it unwise for them to incur the risks involved in staying. We went to the expense of bringing out those who were not able to pay their own way. We did not refuse to give such protection as was possible to those who remained, but we warned them of the extraordinary danger involved in remaining. It seems to me that we cannot well justify a failure to warn American citizens against going into the danger zone on foreign ships—especially on ships which, by carrying ammunition, invite extraordinary risks. It is not sufficient to say that, according to international law, American citizens have a right to go anywhere and that the Government’s protection will follow them no matter what risks they take. If the authorities of a city are justified in warning people off the streets of the city in which they reside, surely a nation is justified in warning its citizens off of the water highways which belong to no nation alone, but to all the nations in common.
The German Government pleads as one reason for the attack upon the Lusitania that it was carrying 5,400 cases of ammunition “destined for the destruction of brave German soldiers, etc.” This ammunition was valued at about $150,000. We have clearly stated the Government’s position in regard to the rights of Americans and if it is thought desirable, this right can be restated in language specifically asserting that according to this Government’s view of international law, citizens have a right to travel with contraband and that their rights cannot be violated merely because the vessel carries contraband. Still it is not only consistent, but, in my judgment, a matter of imperative [Page 425] duty to not [only] warn our citizens against the exercise of this time [right?], but to do whatever lies in our power to prevent the incurring of such risks. Would it not be advisable to reverse the rule by which passenger ships are permitted to carry ammunition? The law says that no ship shall carry gun powder without a license. This has been interpreted by a department order not to apply to gun powder contained in small ammunition. If that order was involved [invoked?] and it was interpreted to exclude all ammunition, it would add to the security of passengers.
I believe that Germany is looking for a way out and that, having stated our position unequivocally on the subject of the use of submarines against merchantmen, we would be justified in taking all the precaution possible to prevent our citizens taking risks. If—not for the benefit of Germany but for the benefit of our own people—we announce that passenger ships will not hereafter be allowed to carry ammunition, I think Germany would be very likely to say that no passenger ship would be attacked if assurances were given that it did not carry ammunition. This we could do without invoking any new legislation. In my judgment, you would be justified in going even further and saying that Congress would be asked for legislation authorizing the refusal of clearance to passenger ships carrying contraband. If such a rule was adopted, contraband would be carried on ships without passengers and thus the safety of passenger ships would be assured. But even if you do not feel justified in going so far as to advise the legislation suggested, forbidding the carrying of contraband on passenger ships, I believe the order in regard to ammunition would have a powerful influence upon Germany just at this time, and I feel sure that it would be approved in this country. A person would have to be very much biased in favor of the Allies to insist that ammunition intended for one of the belligerents should be safe-guarded in transit by the lives of American citizens or, for that matter, by the lives of citizens of any country.
I hope you will pardon the length of this note but I am sincerely anxious to render you any service I can in the solution of the difficult problem presented by the Lusitania disaster. I recognize, of course, that the responsibility rests upon you and that in the final decision your judgment and your conscience are the only guides upon which you are justified in relying. Those of us who have been honored by being selected as advisors are in duty bound to give you, when desired, the benefit of our judgment and conscience, but none of your associates realize more fully than I that we can only assist insofar as the reason[s] which support our conclusions appeal to you. I know of no other way of discharging the duty of an advisor [Page 426] than to outline the course that I would pursue if the responsibility for action were upon me. The earnestness with which I have spoken in the discussion of these questions measures the depth of my solicitude and the sincerity of my desire that your decisions may, by safeguarding our country’s welfare, redound to your own personal credit and to the advantage of our party.
With assurances [etc.]
- i. e., the German note of May 28, 1915, Foreign Relations, 1915, supp., p. 419.↩