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vance of the controversy. The nations show their good faith by agreeing not to declare or to begin hostilities during the investigation or before the report is submitted, as it would be both a farce and a scandal to submit the question to the commission and, during the course of its investigation, to resort to arms. The report will only be complied with if public opinion forces compliance, and this can only be the case if the report itself is so carefully drafted and considered as to enlist public opinion in its behalf.
To those who believe that physical force both generates and sanctions law these treaties are sorry performances. To those who believe that public opinion both generates and sanctions law these treaties will seem to mark the beginning of a better day.
Mr. Bryan entered the Department of State to do a certain thing, and he did it. It is for time to determine whether it was worth doing and whether he did it well.
THE CONTROVERSY BETWEEN THE UNITED STATES AND GERMANY OVER THE USE OF SUBMARINES AGAINST MERCHANT VESSELS
Important questions of international law and humanity have been raised during the last few months by the repeated and relentless attacks of German submarine torpedo boats upon merchant vessels found within the war zone prescribed in the proclamation of the German admiralty of February 4,1915. While the whole civilized world has a vital interest in the solution of these questions, the United States, as the leading and most seriously affected neutral nation, has protested in a series of impressive and statesmanlike diplomatic documents, and has vigorously maintained the protest made to Germany against the carrying out of the threats against merchant shipping visiting the war zone as far as American ships and lives are concerned.
The German proclamation of February 4th announced that every enemy ship found within the war zone would be destroyed, that neutral ships found therein would be exposed to danger from accidents and from mistaken identity because of the misuse of neutral flags by enemy ships, and that the measures to make the proclamation effective would be carried out even if they endangered the lives of the passengers and crew. In the execution of the proclamation, several incidents have occurred which have brought Germany and the United States to the verge at least, of the severance of diplomatic relations.
On March 28, 1915, the British steamer Falaba with 160 passengers and 90 in the crew was sunk by a torpedo fired from a German submarine, resulting in the death of 111 of the persons on board, including one American.
On April 28th the American steamer Cushing, bound from Philadelphia to Rotterdam with a cargo of petroleum and oil, was bombarded by bombs from a German airship but apparently without effect, as the steamer was able to proceed to her destination.
On May 1st the American oil tank steamer Gulflight, bound from Port Arthur, Texas, to Rouen, France, was torpedoed by a German submarine, resulting in damage to the ship and the death of the captain and two of the crew. The steamer was subsequently taken into a British port.
On May 7th one of the largest passenger ships in the world, the British steamer Lusitania, was torpedoed while bound from New York to Liverpool with 1,959 persons on board, and sunk with a loss of over 1,198 souls, including 124 American citizens.
It will be noted that the German proclamation applied to both enemy and neutral vessels; that the destruction of the former was to be intentional and deliberate while the latter were warned against accidents from mines, as subsequently explained, and attacks by mistake. The foregoing incidents included the deliberate sinking by. torpedoes of belligerent merchant vessels, upon which American citizens were being carried as passengers, and attacks upon American vessels by a submarine and airships. Neither of the attacks upon the latter vessels could be attributed to accidental contact with mines, and in order to bring them within the provisions of the German warning, Germany alleged that they resulted from mistaken identity.
In the ensuing correspondence the United States has maintained that the high seas are free; that American citizens have a right to take their ships and to travel wherever their legitimate business calls them upon the high seas; and that the proclamation and warning issued by Germany cannot operate as in any degree an abbreviation of these rights. The United States refuses to admit that, unless a blockade is proclaimed and effectively maintained, a belligerent has any right to interfere with neutral vessels except to exercise the right of visit and search and to subject the vessel and cargo to the recognized legal consequences which follow the establishment through the process of visit and search of the belligerent nationality of the vessel or the contraband character of its cargo. To attack and destroy merchant vessels on sight the United States regards as "unprecedented in naval warfare," and the destruction of American lives upon merchantmen "an indefensible violation of neutral rights." Concerning the threatened dangers to neutral vessels because of the alleged misuse of neutral flags, the United States holds that the suspicion that enemy ships are using neutral flags improperly cannot create a just presumption that all ships traversing the prescribed area are subject to the same suspicion, and points out that the right of visit and search is recognized as legitimate and necessary in order to determine such questions.
Germany makes a general defense of the war zone proclamation and submarine activities first, as acts of retaliation against her enemies, secondly, as justified by the neutrals' toleration of Great Britain's interference with their commerce with Germany; thirdly, as the means of stopping her enemies' supply of war materials from neutrals, which the neutral governments have failed to suppress; and, finally, because Germany's warning was given in ample time for neutrals to avoid the war zone, and she is therefore relieved of responsibility for "accidents" within the zone.
As to these propositions the United States replies that "a belligerent act of retaliation is per se an act beyond the law, and the defense of an act as retaliatory is an admission that it is illegal"; that however justifiable such acts may be thought to be against an enemy, they are manifestly indefensible if they deprive neutrals of their acknowledged rights; that the policy of the belligerents with reference to neutral trade can only be discussed with those governments and is irrelevant to Germany's violation of American rights; that the United States is not open to any charge of unneutral action to justify acts of retaliation against it; and, finally, that no warning that an illegal and inhuman act will be committed can possibly be accepted as an excuse for that act or as an abatement of the responsibility for its commission.
In answer to America's demands that Germany legitimately establish through visit and search, her right to deal with merchant vessels, the latter government contends, with reference to enemy ships, that the distinction between merchantmen and warships has been obliterated by the order to British merchantmen to arm themselves and to ram and otherwise to resist German submarines; that it would be dangerous for German submarines to attempt to visit and search them and they are therefore not in a position to observe the rules of capture; that neutral persons who travel upon such enemy merchantmen thereby expose themselves to the dangers of war, and that accidents which befall neutrals on such ships in the war zone are not different from accidents to which neutrals are exposed in the seat of war on land, whenever they betake themselves into dangerous localities in spite of previous warnings. Germany declines to admit that the presence of American citizens on board enemy ships can protect such ships from attack, and in order to furnish adequate facilities for the traveling of Americans across the Atlantic Ocean under the American flag, she suggested an agreement between the two governments for the transfer to the American flag of a number of neutral passenger steamers and, if necessary, of four enemy passenger steamers.
With reference to the visit and search of neutral vessels, Germany holds that while it is not her intention deliberately to attack and destroy such vessels, the disguising of British ships under neutral flags makes it difficult for the German submarines to recognize neutral vessels, and the danger to which the commander and the submarine would be exposed in attempting to visit and search an armed enemy ship in disguise, and the necessity of making the German measures effective at all events, make visit and search impossible, except when neutral vessels are recognizable as such. In order to avoid the possibility of mistaking "American for hostile merchant vessels, Germany suggested that the United States convoy their ships carrying peaceable cargoes while traversing the war zone, or that such ships be made recognizable by special markings.
The United States did not accept Germany's suggestion of convoy and refused to entertain the offer to designate certain vessels which shall be free to travel in the war zone. Such an agreement, the United States asserted, would, by implication, subject other vessels to illegal attack, and would be an abandonment of the principles for which our government contends. In opposition to the reasons given by Germany for the non-observance of the rules of war with reference to visit and search, the United States sets up the indisputable rights of Americans to take their ships into all parts of the high seas and to pursue their lawful errands as passengers on merchant ships of belligerent nationality. It recognizes the extraordinary conditions created by the war and the radical alterations of circumstance and method of attack produced by the use of instrumentalities of naval warfare which the nations did not have in view when the existing rules of international law were formulated, and it is ready to make every reasonable allowance for these novel and unexpected aspects of war at sea; but it cannot consent to abate any essential or fundamental right of its people because of a mere alteration of circumstance. It insists that the lives of noncombatants, whether they be of neutral citizenship or citizens of one of the nations at war, cannot lawfully or rightfully be put in jeopardy by the capture or destruction of an unarmed merchantman, and that the commanders of submarines may do nothing that would involve the lives of noncombatants or the safety of neutral ships, even at the cost of failing of their object of capture or destruction. It is manifestly impossible, contends the United States, to use submarines against merchantmen without an inevitable violation of many sacred principles of justice and humanity, for it is practically impossible for the officers of a submarine to visit a merchantman at sea and examine her papers and cargo; it is practically impossible for them to make a prize of her; if they cannot put a prize crew on board of her, they cannot sink her without leaving all her crew and all on board of her to the mercy of the sea in small boats, and in some cases time enough for even that poor measure of safety is not given. The United States firmly maintains that the rights of neutrals in time of war are based, not upon expediency, but upon immutable principles; that it is the duty and obligation of belligerents to find a way to adapt the new circumstances to them, and that if a belligerent cannot retaliate against an enemy without injuring the lives and property of neutrals, humanity, justice and a due regard for the sovereignty and dignity of neutral powers should dictate that the practice be discontinued.
In the course of the discussion, Germany acknowledged her liability in the case of the torpedoing of the American steamer Gidfiight, and offered compensation for the damages sustained by American citizens. The steamer, it was explained, was mistaken for an enemy vessel, because it was convoyed by British ships and had no distinctive marks to show that it was neutral.
Concerning the attack by airships on the American steamer Cushing, Germany also indicated her willingness to acknowledge liability and make reparation, but after an investigation, she was unable definitely to establish the attack in fact. A German aviator had attacked what he thought was a hostile vessel, which may possibly have been the Cushing, at the time and place of the attack on the latter, but the vessel in question carried no flag and displayed no neutral markings. The United States was asked to submit the evidence in its possession.