763.72/3468½a
The Secretary of State to President Wilson
My Dear Mr. President: As I told you this afternoon I have been studying the statute of 1819 (now Section 4295 of the Revised Statutes, copy enclosed) which has been suggested as a possible restriction upon the arming of merchant vessels proceeding to the German “danger zone”, and I am firmly convinced that it in no way restricts the power to arm against submarine attacks or affects the status of the vessel so armed.
In analyzing the statute I find the following reasons which are more or less technical for its not being applicable to the pending question:
1st. In excepting an armed public ship from attack by a merchant vessel, the ship excepted is that “of some nation in amity with the United States”. It is significant that the customary words “peace and amity” are not used, only the word “amity”. I would define “amity” to be “in friendly relations with”. When diplomatic relations have been severed I do not think that it can be said that “friendly relations” exist or a state of “amity” exists. We are still at peace but not in amity with Germany.
2d. The law applies to “the commander and crew” of a merchant vessel. It would not apply to arms or an armed guard put on board such vessel by the Government, if that policy is determined upon.
3d. The statute is clearly an enabling act and not a prohibiting act. That is, it defines what a merchant vessel may do in case of aggression by a foreign private vessel, but it does not prohibit it from any act in relation to a foreign public ship. If it had a right to resist lawless conduct by a public ship prior to the passage of the statute, that right remained unimpaired.
4th. The act being without any provision for a penalty is effective [ineffective?] and could not be enforced even if it could be construed as prohibitive. The absence of a penalty clause seems conclusive evidence that it is an enabling act and permissive in nature. If it was prohibitive there would be a penalty fixed.
Furthermore the statute when incorporated in the Revised Statutes was placed under the title of “piracy” and pertained, I assume, to the right to resist pirates. I do not consider that submarines can be so classed although their acts might be considered piratical. It is another form of lawlessness endangering life which is involved and to which the statute in question in no way applies. While a cursory reading of the provisions might raise a doubt as to the right of armed defense against a public ship, a study of the terms and purpose [Page 614] of the statute removes the doubt as entirely inapplicable to an illegal submarine attack.
In view, however, of the fact that the section of the Revised Statutes falls under the title of Piracy it is possible that private citizens may hesitate to arm their merchant vessels. It would not be at all unnatural if there was a measure of hesitancy.
There are two ways to meet this state of affairs. First, to issue a public statement declaring that the statute of 1819 does not apply to present conditions and that a merchant vessel has the right to arm and resist illegal attacks by submarines. Second, for the Government to furnish guns and gun crews to merchant vessels sailing for the German “danger zone”, which would remove any doubt of violation of a statute.
The first way has the disadvantage of placing the guns under the control of the master of a merchant vessel, who might not act with the discretion of a naval officer in using them. Furthermore, as the guns and ammunition can only be obtained from the Navy Department, the furnishing of the armament would appear to give official authorization to the merchant vessel to use it, and in no way relieve the Government of responsibility for its use.
The second way has the advantage of placing the armament under the control of naval gunners who could be given explicit orders as to its use. It would undoubtedly be far more efficient to have the guns handled in this way than under the direction of an inexperienced commander of a merchantman.
As to the propriety of furnishing naval guns and naval gunners to merchant vessels I have no doubt. On February 10, 1916, the German Government declared that it would consider armed merchant vessels to be public warships and not entitled to the treatment of private vessels of commerce. In view of this declaration I can not see that it will give Germany any greater justification for lawless attack if the guns are directly operated by order of the Government than she would have if the ship’s crew handled the armament under the captain’s orders. It might be well, if it is decided to use naval guns and naval gunners, to direct particular attention to the German declaration.
As I pointed out in a memorandum submitted to you on February 22d,14 the employment of naval guns and gun crews would be in the nature of an armed guard to protect American lives, and would be based on the general principle of convoy, though differing in this, that the guard being on the vessel the belligerent right of visit and search would not be waived. In the present case, however, the German Government has announced its intention not to exercise [Page 615] the right and to sink all vessels on sight, so that a government armed vessel would have the indubitable right to use its armament on the approach of a German submarine. As the purpose of the arming would be to protect live [life?] and not the cargo I do not see that the presence of contraband on board would affect the case. If the German submarines visited and searched the vessels the use of an armament by a vessel with or without contraband would be unjustified, but the declaration of a purpose not to observe the law, thereby imperilling life, removes any responsibility of the vessel to surrender or of the Government, which has armed it, to guaranty the innocent character of the cargo.
It seems to me that there is no more impropriety in placing armed guards on an American merchant vessel to preserve the lives of the persons on board than there is to land guns and blue jackets to protect the lives of American citizens on foreign soil when they are in danger of lawless attack. I do not know but the present case is even stronger because the sea is common to all nations and not subject to the sovereignty of any one nation. In fact the legal fiction that “an American vessel is American territory” might be applied. In that case the resistance of lawless acts would be like guarding the border from outlaws.
My own belief is that we would be in a stronger and more defensible position legally and accomplish better results if we frankly declared it to be our duty to place on every American merchant vessel sailing for the “danger zone” a naval guard with an armament sufficient to protect it from submarine attack, and that this practice would be followed regardless of the character of the cargo so long as the German Government menaced American lives by declining to exercise the right of visit and search and by attacking indiscriminately all vessels without regard to the safety of the persons on board.
Faithfully yours,