462.11 Se 8/39
The Secretary of State to
President Wilson
Washington,
August 7, 1915.
My Dear Mr. President: I enclose, for your
consideration, a draft of reply40 to the German
note on the Frye case,41 which has
been prepared by Mr. Chandler P. Anderson. He also submitted with the
draft a memorandum on the case which explains certain features of the
draft.
It seems to me that the proposed reply is excellent and takes a very
consistent attitude on the questions in dispute. It furthermore
introduces the principle of arbitration which, if once adopted, may be
extended to other subjects of difference.
I am also enclosing a printed copy of the German note on the Frye case.
Faithfully yours,
[Enclosure]
Memorandum by Mr. Chandler P. Anderson on the
“Frye” Case42
Washington,
August 5, 1915.
There is a special purpose in the answer I have drafted in the Frye case which requires a few words of
explanation.
Apart from the advisability of settling by arbitration the questions
at issue in this case, it is to be hoped that this resort to
arbitration will make easier the adoption of similar action in
dealing with the differences between the two Governments about
submarine warfare against, merchant ships. In that case, however, it
would be absolutely essential
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for the purposes of the United States
Government that Germany should suspend her illegal operations
pending the arbitral award, and it is anticipated that Germany will
refuse to do this unless in our negotiations with Great Britain
about their violation of our neutral trade rights, we insist that
they also discontinue their unlawful practices pending arbitration.
The present case gives an opportunity to ask Germany what its
position is on this point, and it is for the purpose of getting a
statement of Germany’s position that the last clause of this note
has been framed in the form of an inquiry.
If it becomes necessary for the United States to express its own
views on this point, my suggestion as to the position we should take
is that in cases involving the destruction of life, the action
complained of must not be repeated pending a legal inquiry as to its
illegality, but that in cases involving merely the loss of property,
which can be measured by money damages, a modus
vivendi should be arranged on a basis which will avoid so
far as possible destruction of property pending the decision of the
arbitral tribunal.
This rule would apply equally in our dispute with Great Britain about
unlawful restraints of trade, and in our dispute with Germany in the
present case, and it draws the essential distinction between these
cases and the Lusitania Case so that if
arbitration is offered there, we can insist, pending the decision of
the tribunal, that there shall be no repetition of the course of
action complained of while it is under judicial investigation.
If it be found that Germany is unwilling to adopt this course, then
it will be necessary for the United States Government to consider
whether it is possible to submit to arbitration our differences with
Germany.
