File No. 763.72/2023

The Ambassador in Germany (Gerard) to the Secretary of State


2706. Following probably inspired notice circulated in the press, August 7 and 8:

English Maritime Francs-Tireurs

The main claim in the note of the United States is that of the pretended fundamental and immutable rights of neutrals. The Government of the United States cannot consent to abate any essential or fundamental right of its people because of a mere alteration of circumstances. Here it declares itself that it is not its intention to take a practical position but, whether prompted by the most unbending dogmatism or by pronounced partiality, to cling fast to theories which could not have contemplated the forms which maritime war has assumed and must therefore be considered untenable. To be sure, Germany recognizes in a great degree the same principles of right and humanity for maritime war as do the United States; but America wrongly applies these principles to absolutely new circumstances and would like to bind Germany to the unconditional acceptance of the same rules for war in commerce as the Government of the United States has derived from those principles.

Especially the remarks on commercial warfare and the use of the expression “merchantman” are bound to cause surprise; for at the very beginning of the war the United States felt that it was impossible to make any sharp distinction between merchantman and warship in view of the way in which England thought fit to carry on warfare. This was clearly expressed in the instructions of the Department of State of September 20 [19], 19141 which provide that merchant vessels of belligerent nations may leave American ports with guns and ammunition solely for defensive purposes. The provisions for establishing whether armament is not for offensive instead of defensive purposes are exceedingly vague. A statement lately made by Lord Cecil in the House of Commons, namely, that the principle of the equipment of belligerent merchantmen with guns for defense was generally recognized agrees with this. Thus while the idea of an armed merchantman has been quite familar to the United States since the beginning of the war and it has to a certain extent contributed itself towards the very objectionable obliteration of the distinction between merchantman and warship, the new note speaks merely of the merchantman as if in the English practice merchantmen and warships could be distinguished at all in submarine warfare.

Even in hostile England it appears that some recognition of the confusion which has been caused is now prevalent, although this is not the case with the neutral government of the United States. The following remarks of the naval correspondent of the Daily Chronicle of July 6 deserve notice:

It is an unpalatable truth that the distinction between warships and merchant vessels is being obliterated. When Mr. Churchill mounted twelve-centimeter guns on the stern of certain vessels he took a step towards this obliteration; but the German submarine which torpedoed such vessels as the Lusitania and the Armenian completed this process. Perhaps we shall have to recognize the fact that henceforward freight vessels and passenger vessels are to be considered as warships and sunk, for submarines cannot capture them.

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These statements hit the nail on the head in this judgment of England’s objectionable measures, and it is of particular interest to note the concession that England commenced the obliteration by inventing armed merchantmen and already feels that this is an unpalatable truth. It only needs to be added that the instructions issued to English vessels to use their prows as a ram and aggressive weapon against submarines, even though they may not be armed, deprive them of the last vestige of the right to be treated as merchantmen in the sense of existing international law. England herself has transformed her merchant marine not to warships but, as the Daily Chronicle teaches us, to maritime francs-tireurs. We may readily assume that the American note left these well-known facts unconsidered and only spoke of merchantmen, not out of abstractedness, but with pure intention, because otherwise it would have been necessary to admit that no generally accepted principles of international law exist for the idea of armed merchantmen.