File No. 763.72111Em1/13

The Ambassador in Austria-Hungary ( Penfield ) to the Secretary of State

No. 608]

Sir: I have the honor to transmit herewith enclosed a copy and translation of a note dated June 29 from Baron Burian, the Austro-Hungarian Minister for Foreign Affairs, relative to the shipment of arms and ammunition by citizens of the United States to Great Britain and her allies, and taking issue with the American Government as to its neutrality in permitting the continuance of this traffic in view of the proportions to which it has grown and in view of the fact that Austria-Hungary and Germany are cut off from the American market. The full text of the note was to-day cabled you in cipher.

In view of the importance of the subject in hand and of the delay which would attend a transmission by pouch, I am venturing to bring to your attention by telegraph certain actions on the part of the Austro-Hungarian and German Governments which have come to my notice, which form precedents, and which, although no doubt already known to the Department, I feel it my duty to recall to your notice on this occasion. The Embassy has ventured, unofficially, to recall these facts to the Ministry of Foreign Affairs and did not omit to mention the large number of so-called Mexican guns now in the hands of the Austro-Hungarian troops, the shipment of which [Page 791] to Mexico was prevented only by the outbreak of the present European War, and likewise that American manufacturers of war materials could transfer their plants to Canada with a facility equal to that evidenced by the removal of the Belgian arms plant from Herstal to Germany, and the still more recent removal of similar plants from the shores of the Adriatic provinces—from Monfalcone, Pola, and Fiume—to safer places within the Monarchy where they are now in operation.

It was further suggested that the proportion of arms and ammunition supplied to the Allies by American manufacturers was probably much exaggerated in the Austro-German mind; that no account seemed to be taken of the fact that France and England, with her colonies, were utilizing every available resource to this end; that American manufacturers realized that the production of articles of this kind was altogether of a temporary nature, and that one might be sure that their attention had not been distracted thereby from the rich fields for export in South America and Asia, which had formerly been supplied by Europe, but which must now look to the United States for supplies. It was reasonable to suppose that American business men had not lost sight of the future advantages of gaining control of those markets in the present circumstances, and that therefore the Nation can not be supposed to have given itself up to the production of war material to the degree to which Austro-German publicists seem to imagine; that, to the contrary, should the United States mobilize her manufactories on the lines at present followed in Great Britain, it is highly probable that enough ammunition could, within a short time, be produced to supply the wants of any of the belligerents.

I have [etc.]

Frederic C. Penfield

The Austro-Hungarian Minister of Foreign Affairs ( Burian ) to the American Ambassador ( Penfield )

No. 59,465/7]

The far-reaching effects which result from the fact that for a long time the traffic in munitions of war to the greatest extent has been carried on between the United States of America on the one hand and Great Britain and its allies on the other, while Austria-Hungary as well as Germany have been absolutely excluded from the American market, have from the very beginning attracted the most serious attention of the Imperial and Royal Government.

If now the undersigned permits himself to address himself to this question, with which the Washington Cabinet has been concerned until now only with the Imperial German Government, he follows the injunction of imperative duty to protect the interests intrusted to him from further serious damage which results from this situation as well to Austria-Hungary as to the German Empire.

Although the Imperial and Royal Government is absolutely convinced that the attitude of the Federal Government in this connection emanates from no other intention than to maintain the strictest neutrality and to conform to the letter of the provisions of international treaties, nevertheless the question arises whether the conditions as they have developed during the course of the war, certainly independently of the will of the Federal Government, are not such as in effect thwart the intentions of the Washington Cabinet or even actually oppose them. In the affirmative case―and affirmation, in the opinion of the Imperial and Royal Government, can not be doubted―then immediately follows the further question whether it would not seem possible, even imperative, that appropriate measures be adopted toward bringing into full effect the desire of the Federal Government to maintain an attitude of strict parity with respect [Page 792] to both belligerent parties. The Imperial and Royal Government does not hesitate to answer also this question unqualifiedly in the affirmative.

It can not certainly have escaped the attention of the American Government, which has so eminently cooperated in the work of The Hague, that the meaning and essence of neutrality are in no way exhaustively dealt with in the fragmentary provisions of the pertinent treaties. If one takes into consideration particularly the genesis of Article 7 of the fifth and thirteenth conventions, respectively, upon which the Federal Government clearly relies in the present case, and the wording of which, as is in no way to be denied, affords it a formal pretext for the toleration of traffic in munitions of war now being carried on by the United States, it is only necessary, in order to measure the true spirit and import of this provision―which, moreover, appears to have been departed from in the prevention of the delivery of vessels of war and in the prevention of certain deliveries to vessels of war of belligerent nations―to point out the fact that the detailed privileges conceded to neutral states in the sense of the preamble to the above-mentioned convention are limited by the requirements of neutrality which conform to the universally recognized principles of international law.

According to all authorities on international law who concern themselves more particularly with the question now under consideration, a neutral government may not permit traffic in contraband of war to be carried on without hindrance when this traffic assumes such a form or such dimensions that the neutrality of the nation becomes involved thereby.

If any one of the various criteria which have been laid down in science in this respect be used as a basis in determining the permissibility of commerce in contraband, one reaches the conclusion from each of these criteria that the exportation of war requisites from the United States, as is being carried on in the present war, is not to be brought into accord with the demands of neutrality.

The question now before us is surely not whether American industries which are engaged in the manufacture of war material should be protected from loss in the export trade that was theirs in times of peace. Rather has that Industry soared to unimagined heights. In order to turn out the huge quantities of arms, ammunition, and other war material of every description ordered in the past months by Great Britain and her allies from the United States, not only the full capacity of the existing plants, but also their transformation and enlargement and the creation of new large plants, as well as a flocking of workmen of all trades into that branch of industry, in brief, far-reaching changes of economic life encompassing the whole country, became necesssary. From no quarter, then, can there come any question of the right of the American Government to prohibit, through the issuance of an embargo, that enormous exportation of war implements that is openly carried on and, besides, is commonly known to be availed of by only one of the parties to the war. If the Federal Government would exercise that power it possesses, it could not lay itself open to blame if, in order to keep within the requirements of the law of the land, it adopted the course of enacting a law. For while the principle obtains that a neutral state may not alter the rules in force within its province concerning its attitude toward belligerents while war is being waged, yet this principle, as clearly appears from the preamble to the thirteenth Hague convention, suffers an exception in the case “où l’expérience acquise en démontrerait la nécessité pour la sauvegarde de ses droits” [where experience has shown the necessity thereof for the protection of its rights].

Moreover, this case is already established for the American Government through the fact that Austria-Hungary, as well as Germany, is cut off from all commercial intercourse with the United States of America without the existence of a legal prerequisite therefor―a legally constituted blockade.

In reply to the possible objection that, notwithstanding the willingness of American industry to furnish merchandise to Austria-Hungary and Germany as well as to Great Britain and her allies, it is not possible for the United States of America to trade with Austria-Hungary and Germany as the result of the war situation, it may be pointed out that the Federal Government is undoubtedly in a position to improve the situation described. It would be amply sufficient to confront the opponents of Austria-Hungary and Germany with the possibility of the prohibition of the exportation of foodstuffs and raw materials in case legitimate commerce in these articles between the Union [Page 793] and the two Central Powers should not be allowed. If the Washington Cabinet should find itself prepared for an action in this sense, it would not only be following the tradition always held in such high regard in the United States of contending for the freedom of legitimate maritime commerce, but would also earn the high merit of nullifying the wanton efforts of the enemies of Austria-Hungary and Germany to use hunger as an ally.

The Imperial and Royal Government may therefore, in the spirit of the excellent relations which have never ceased to exist between the Austro-Hungarian Monarchy and the United States of America, appeal to the Federal Government in sincere friendship, in view of the expositions here set forth, to subject its previously adopted standpoint in this so important, question to a mature reconsideration. A revision of the attitude observed by the Government of the Union in the sense of the views advocated by the Imperial and Royal Government would, according to the convictions of the latter, be not only within the bounds of the rights and obligations of a neutral government, but also in close keeping with those principles dictated by true humanity and love of peace which the United States has ever written on its banner.

The undersigned has the honor to ask the good offices of his excellency, the ambassador extraordinary and plenipotentiary of the United States of America, Mr. Frederic Courtland Penfield, to convey the foregoing by telegram to the attention of the Washington Cabinet; he avails himself [etc.]