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With reference to the attack on the British steamer Falaba, Germany stated that it was the intention of the commander of the submarine to allow the passengers and crew ample time to save themselves, but the captain of the Falaba disregarded the order to lay to and took flight, sending up rocket signals for help, whereupon the German commander ordered the passengers and crew to leave the ship within ten minutes. Twenty-three minutes were actually allowed before the torpedo was fired, and then only upon the approach of suspicious steamers. The United States declined to accept this explanation as in any way relieving Germany of responsibility for the loss of American lives. It took the ground that an effort on the part of a merchantman to escape capture and secure assistance does not alter the obligation of the capturing vessel in respect of the safety of the lives on board after the vessel had ceased her attempt to escape. "Nothing but actual forcible resistance or continued efforts to escape by flight when ordered to stop for the purpose of visit on the part of the merchantman has ever been held to forfeit the lives of her passengers or crew."

In explanation of the attack upon the Lusitania, Germany alleged that the vessel was equipped with masked guns, supplied with trained gunners and special ammunition, transported Canadian troops, carried a cargo of explosives prohibited by the laws of the United States to passenger vessels, and was serving virtually as an auxiliary to the British naval forces. It was also alleged that the vessel had a large cargo of ammunition destined for Great Britain, in the destruction of which Germany acted in self-defense; that if the commander of the submarine had allowed the passengers and crew time to put out in boats before firing the torpedo, his own vessel would surely have been destroyed; that it might reasonably have been expected that such a mighty ship would have remained above water long enough after being torpedoed to permit the passengers to enter the ship's boats; and that the rapid sinking of the vessel was primarily due to the explosion of the cargo of ammunition caused by the torpedo. The United States made a flat denial, based upon official information, that the Lusitania was armed for offensive action; that she was serving as a transport; that she carried a cargo prohibited by the statutes of the United States and that she was a naval vessel of Great Britain. The contentions of Germany regarding the carriage of contraband and its explosion by the torpedo the United States regarded as irrelevant to the question of the legality of the methods used by the German naval authorities in sinking the

vessel, and it reiterated its stand taken in the Falaba case that only the actual resistance of the vessel to capture or refusal to stop when ordered to do so for the purpose of visit could have offered the commander of the submarine any justification for so much as putting the lives of those on board in jeopardy. "Whatever be the other facts regarding the Lusitania," concluded the American note on this point, "the principal fact is that a great steamer, primarily and chiefly a conveyance for passengers, and carrying more than a thousand souls who had no part or lot in the conduct of the war, was torpedoed and sunk without so much as a challenge or a warning, and that men, women and children were sent to their death in circumstances unparalleled in modern warfare." The United States demanded a disavowal of the act of the German naval commander in sinking the Lusitania, reparation for the American lives lost, and warned Germany that a repetition of acts of her naval authorities in contravention of the neutral rights of American citizens would be regarded as "deliberately unfriendly."

A mighty belligerent has thus been brought, so to speak, before the bar of humanity and civilization to answer a no less powerful neutral for alleged infractions of the laws governing their relations in the society of nations, of which they both are members. The magnitude of the material interests entrusted to the care of each government and the great influence which each exerts upon the practice and customs of international relationships make the outcome of the controversy of much importance to both, and neither can afford to give up any rights which they legitimately possess nor suffer any infringement or diminution thereof at the hands of the other.

Germany does not deny the facts nor dispute the principles of law invoked by the United States, but sets up other facts and reasons to justify her course of action. Her replies amount virtually to a plea of confession and avoidance and the burden of proof therefore rests upon her. An examination of her answer will show whether or not she has made out her case.

Germany pleads, in the first place, the necessity for retaliation against her enemies, but in carrying out her measures she draws no distinction between enemy and friend and inflicts the most extreme penalty upon both alike. According to accepted doctrines retaliation may be justified in war only against an enemy for failing to observe the rules of war and humanity. It finds no place in the body of rules regulating the relations of neutrals and belligerents. But in order to establish some

basis for including neutrals within the punishment meted out to her enemies, Germany practically alleges that her acts of retaliation are designedly directed against neutrals because they have failed to force Great Britain to allow them to trade with Germany. Prohibitions of commercial intercourse may justify acts of retaliation in kind, but the claim of the right of a belligerent to retaliate against a neutral for acts of the enemy in interfering with commerce between their respective countries is one which the United States has shown itself in historic times to be unwilling to accept at any cost. It is the duty, not of the neutral, but primarily of the belligerent who depends so much upon foreign commerce, to protect that commerce from the interference of his enemy and if he is unable to protect himself in this way, he must take the consequences of his own weakness. He cannot be heard to say that his weakness is an excuse for attacks upon a neutral. The neutral alone determines the measures he will take to protect his legitimate trade. As long as he acts impartially between the belligerents they have no cause whatever for complaint, and in determining the neutral's impartiality the relative military and naval strength of the respective belligerents is not a matter which can be taken into consideration.

The interruption of trade between Germany and the United States cannot be attributed to any act of the United States, but is caused exclusively by the acts of Germany's enemies. Protests have been lodged with Great Britain on every occasion when the United States considered that its rights as a neutral trader required such a protest. If the diplomatic correspondence with Great Britain has been conducted in less vigorous terms than that with Germany, it is because of the difference in the methods employed by the two belligerents in asserting their alleged belligerent rights. On the one hand, not a single American ship or cargo has been destroyed, not a single American life endangered or taken, and for the cargoes detained compensation in many cases has already been paid; while, on the other hand, attempts have been made to destroy American vessels with their cargoes, and in one case at least the attempt was successful, and hundreds of American lives have been ruthlessly jeopardized and in some instances sacrificed. In the absence of any acts on the part of the United States or its citizens, illegal according to the accepted principles of international law, Germany has no basis whatever for taking any action against them, illegal according to the same principles, and her justification of such illegal acts on the ground of retaliation is therefore untenable.

Passing from Germany's allegation that her acts beyond the law are justified as measures of retaliation, an examination will now be made of her explanation of those acts on grounds coming within the law.

The first contention of this kind is that the attacks of submarines are justified as a means of stopping the supply of war material to Germany's enemies. A belligerent has always exercised the right of preventing contraband trade with the enemy, and while neutrals have an undoubted right to engage in such trade, they cannot object if a belligerent seizes and confiscates it before it reaches its enemy destination. But aside from the question of the regulation of the manner of seizure and condemnation, the penalty which may be inflicted upon a neutral for engaging in the carriage of contraband must not exceed his offence against the belligerent. The right to confiscate a contraband cargo has never been and is not now disputed; the law books and decisions of prize courts teem with discussions as to the circumstances under which a ship and innocent cargo may be confiscated; and both ship and cargo may, in exceptional cases, be destroyed; but the authorities and precedents will be searched in vain for any justification or excuse for taking the lives of the persons on board a ship carrying contraband cargo. No personal penalty has ever attached to neutrals for carrying contraband, except the risk of the loss of ship and cargo, nor has any inconvenience been suffered by neutral passengers on contraband-carrying ships, except the possible breaking up of their voyage. The infliction by Germany in the present war of the extreme penalty of death is therefore as unjustifiable on this ground as it is upon the ground of retaliation.

The statement that Germany is relieved of responsibility because of the warning issued before the acts were committed hardly deserves mention in the discussion of questions as serious as those under consideration. A threat to do an illegal act is, according to municipal law, a separate crime in itself, and although Germany's threat may not be a crime under international law, her warning that an illegal act under international law is to be committed cannot justify her commission of the act: it rather aggravates the offence by showing premeditation and design.

Recognizing the weakness of her position on the grounds previously discussed, Germany makes specific reply to the objections raised by the United States to attacks by submarines upon merchant vessels without first ascertaining their nationality or the contraband character of their

cargo, to their confiscation by destruction without condemnation through the usual prize court proceedings, and to the failure of the submarine to provide for the safety of the passengers and crew.

Germany's defense of the peremptory destruction of British vessels amounts to a denial that they have the status of merchant vessels. According to the German contention, the arming of merchant vessels for defensive purposes and the instructions to them to resist the attacks of German submarines take these vessels out of the category of merchant ships and convert them into war ships, which can be surprised and destroyed without warning, including their cargoes and all on board. This view is apparently an erroneous construction of the abolition of privateering by the Declaration of Paris to mean that merchant ships. cannot be armed for offensive purposes and cannot defend themselves if attacked.1 But this doctrine is directly opposed to the Anglo-American practice, which recognizes the right of an enemy merchantman to defend itself against attack, and to escape if it can, but not to engage in aggressive warfare. The American doctrine was stated by Chief Justice. Marshall in delivering the opinion of the Supreme Court of the United States in the case of the Nereide,3 decided on March 6, 1815. His decision was reaffirmed three years later by the same court in the case of the Atalanta. In the decision first mentioned the Chief Justice held squarely that "a belligerent has a perfect right to arm in his defense" and that “a neutral has a perfect right to transport his goods in a belligerent ship." Discussing the relation of these rights to the rights of the enemy, the Chief Justice said:

The neutral has no control over the belligerent right to arm-ought he to be accountable for the exercise of it? By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does not cease to be neutral.

1 The German views will be found clearly stated in the work of Dr. Schramm, special adviser to the German Admiralty, entitled "Das Prisenrecht," pp. 266-267, and the question is carefully considered by Dr. Heinrich Triepel, professor at the University of Berlin, in an article entitled "Der Wiederstand feindlicher Handelsschiffe gegen die Aufbrigung" in the Zeitschrift für Völkerrecht, No. 8, p. 378.

2 For an exposition of the British policy of arming merchant vessels and an historical review of the practice, see the article in this JOURNAL for October, 1914, p. 705, by Mr. A. Pearce Higgins, lecturer of international law at the London School of Economic and Political Science, formerly deputy Whewell professor of international law in the University of Cambridge.

39 Cranch, 389.

43 Wheaton, 409.

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