Part 3

Second--The German Government would undertake not to use their submarines to attack mercantile of any flag except when necessary to enforce the right of visit and search. Should the enemy nationality of the vessel or the presence of contraband be ascertained, submarines would proceed in accordance with the general rules of international law.

Third--As provided in the American note, this restriction of the use of the submarines is contingent on the fact that enemy mercantile abstain from the use of the neutral flag and other neutral distinctive marks. It would appear to be a matter of course that such mercantile vessels also abstain from arming themselves and from all resistance by force, since such procedure contrary to international law would render impossible any action of the submarines in accordance with international law.

Fourth--The regulation of legitimate importations of food into Germany suggested by the American Government appears to be in general acceptable. Such regulation would, of course, be confined to importations by sea, but that would, on the other hand, include indirect importations by way of neutral ports. The German Government would, therefore, be willing to make the declarations of the nature provided in the American note so that the use of the imported food and foodstuffs solely by the non-combatant population would be guaranteed. The Imperial Government must, however, in addition (* * * * *)[1] having the importation of other raw material used by the economic system of non-combatants, including forage, permitted. To that end the enemy Governments would have to permit the free entry into Germany of the raw material mentioned in the free list of the Declaration of London, and to treat materials included in the list of conditional contraband according to the same principles as food and foodstuffs.

[Footnote 1: Apparent omission.]

The German Government venture to hope that the agreement for which the American Government have paved the way may be reached after due consideration of the remarks made above, and that in this way peaceable neutral shipping and trade will not have to suffer any more than is absolutely necessary from the unavoidable effects of maritime war. These effects could be still further reduced if, as was pointed out in the German note of the 16th inst., some way could be found to exclude the shipping of munitions of war from neutral countries to belligerents on ships of any nationality.

The German Government must, of course, reserve a definite statement of their position until such time as they may receive further information from the American Government enabling them to see what obligations the British Government are, on their part, willing to assume.

The undersigned avails himself of this occasion, &c.

VON JAGOW.

Dated, Foreign Office, Berlin, Feb. 28, 1915.

GERARD.

III.

GREAT BRITAIN'S REPLY.

_The reply of Great Britain to the American note of Feb. 20, handed to the American Ambassador at London, was as follows:_

LONDON, March 15, 1915.

Following is the full text of a memorandum dated March 13, which Grey handed me today:

"On the 22d of February last I received a communication from your Excellency of the identic note addressed to his Majesty's Government and to Germany respecting an agreement on certain points as to the conduct of the war at sea. The reply of the German Government to this note has been published and it is not understood from the reply that the German Government are prepared to abandon the practice of sinking British merchant vessels by submarines, and it is evident from their reply that they will not abandon the use of mines for offensive purposes on the high seas as contrasted with the use of mines for defensive purposes only within cannon range of their own harbors, as suggested by the Government of the United States. This being so, it might appear unnecessary for the British Government to make any further reply than to take note of the German answer.

"We desire, however, to take the opportunity of making a fuller statement of the whole position and of our feeling with regard to it. We recognize with sympathy the desire of the Government of the United States to see the European war conducted in accordance with the previously recognized rules of international law and the dictates of humanity. It is thus that the British forces have conducted the war, and we are not aware that these forces, either naval or military, can have laid to their charge any improper proceedings, either in the conduct of hostilities or in the treatment of prisoners or wounded. On the German side it has been very different.

"1. The treatment of civilian inhabitants in Belgium and the North of France has been made public by the Belgian and French Governments and by those who have had experience of it at first hand. Modern history affords no precedent for the sufferings that have been inflicted on the defenseless and non-combatant population in the territory that has been in German military occupation. Even the food of the population was confiscated until in Belgium an international commission, largely influenced by American generosity and conducted under American auspices, came to the relief of the population and secured from the German Government a promise to spare what food was still left in the country, though the Germans still continue to make levies in money upon the defenseless population for the support of the German Army.

"2. We have from time to time received most terrible accounts of the barbarous treatment to which British officers and soldiers have been exposed after they have been taken prisoner, while being conveyed to German prison camps. One or two instances have already been given to the United States Government founded upon authentic and first-hand evidence which is beyond doubt. Some evidence has been received of the hardships to which British prisoners of war are subjected in the prison camps, contrasting, we believe, most unfavorably with the treatment of German prisoners in this country. We have proposed, with the consent of the United States Government, that a commission of United States officers should be permitted in each country to inspect the treatment of prisoners of war. The United States Government have been unable to obtain any reply from the German Government to this proposal, and we remain in continuing anxiety and apprehension as to the treatment of British prisoners of war in Germany.

"3. At the very outset of the war a German mine layer was discovered laying a mine field on the high seas. Further mine fields have been laid from time to time without warning, and, so far as we know, are still being laid on the high seas, and many neutral as well as British vessels have been sunk by them.

"4. At various times during the war German submarines have stopped and sunk British merchant vessels, thus making the sinking of merchant vessels a general practice, though it was admitted previously, if at all, only as an exception, the general rule to which the British Government have adhered being that merchant vessels, if captured, must be taken before a prize court. In one case already quoted in a note to the United States Government a neutral vessel carrying foodstuffs to an unfortified town in Great Britain has been sunk. Another case is now reported in which a German armed cruiser has sunk an American vessel, the William P. Frye, carrying a cargo of wheat from Seattle to Queenstown. In both cases the cargoes were presumably destined for the civil population. Even the cargoes in such circumstances should not have been condemned without the decision of a prize court, much less should the vessels have been sunk. It is to be noted that both these cases occurred before the detention by the British authorities of the Wilhelmina and her cargo of foodstuffs, which the German Government allege is the justification for their own action.

"The Germans have announced their intention of sinking British merchant vessels by torpedo without notice and without any provision for the safety of the crews. They have already carried out this intention in the case of neutral as well as of British vessels, and a number of non-combatant and innocent lives on British vessels, unarmed and defenseless, have been destroyed in this way.

"5. Unfortified, open, and defenseless towns, such as Scarborough, Yarmouth, and Whitby, have been deliberately and wantonly bombarded by German ships of war, causing in some cases considerable loss of civilian life, including women and children.

"6. German aircraft have dropped bombs on the east coast of England, where there were no military or strategic points to be attacked. On the other hand, I am aware of but two criticisms that have been made on British action in all these respects:

"1. It is said that the British naval authorities also have laid some anchored mines on the high seas. They have done so, but the mines were anchored and so constructed that they would be harmless if they went adrift, and no mines whatever were laid by the British naval authorities till many weeks after the Germans had made a regular practice of laying mines on the high seas.

"2. It is said that the British Government have departed from the view of international law which they had previously maintained, that foodstuffs destined for the civil population should never be interfered with, this charge being founded on the submission to a prize court of the cargo of the Wilhelmina. The special considerations affecting this cargo have already been presented in a memorandum to the United States Government, and I need not repeat them here.

"Inasmuch as the blockade of all foodstuffs is an admitted consequence of blockade, it is obvious that there can be no universal rule based on considerations of morality and humanity which is contrary to this practice. The right to stop foodstuffs destined for the civil population must therefore in any case be admitted if an effective 'cordon' controlling intercourse with the enemy is drawn, announced, and maintained. Moreover, independently of rights arising from belligerent action in the nature of blockade, some other nations, differing from the opinion of the Governments of the United States and Great Britain, have held that to stop the food of the civil population is a natural and legitimate method of bringing pressure to bear on an enemy country as it is upon the defense of a besieged town. It is also upheld on the authority of both Prince Bismarck and Count Caprivi, and therefore presumably is not repugnant to German morality.

"The following are the quotations from Prince Bismarck and Count Caprivi on this point. Prince Bismarck in answering, in 1885, an application from the Kiel Chamber of Commerce for a statement of the view of the German Government on the question of the right to declare as contraband foodstuffs that were not intended for military forces said: 'I reply to the Chamber of Commerce that any disadvantage our commercial and carrying interests may suffer by the treatment of rice as contraband of war does not justify our opposing a measure which it has been thought fit to take in carrying on a foreign war. Every war is a calamity which entails evil consequences not only on the combatants but also on neutrals. These evils may easily be increased by the interference of a neutral power with the way in which a third carries on the war to the disadvantage of the subjects of the interfering power, and by this means German commerce might be weighted with far heavier losses than a transitory prohibition of the rice trade in Chinese waters. The measure in question has for its object the shortening of the war by increasing the difficulties of the enemy and is a justifiable step in war if impartially enforced against all neutral ships.'

"Count Caprivi, during a discussion in the German Reichstag on the 4th of March, 1892, on the subject of the importance of international protection for private property at sea, made the following statements: 'A country may be dependent for her food or for her raw products upon her trade. In fact, it may be absolutely necessary to destroy the enemy's trade.' 'The private introduction of provisions into Paris was prohibited during the siege, and in the same way a nation would be justified in preventing the import of food and raw produce.'

"The Government of Great Britain have frankly declared, in concert with the Government of France, their intention to meet the German attempt to stop all supplies of every kind from leaving or entering British or French ports by themselves stopping supplies going to or from Germany. For this end, the British fleet has instituted a blockade effectively controlling by cruiser 'cordon' all passage to and from Germany by sea. The difference between the two policies is, however, that, while our object is the same as that of Germany, we propose to attain it without sacrificing neutral ships or non-combatant lives, or inflicting upon neutrals the damage that must be entailed when a vessel and its cargo are sunk without notice, examination, or trial.

"I must emphasize again that this measure is a natural and necessary consequence of the unprecedented methods repugnant to all law and morality which have been described above which Germany began to adopt at the very outset of the war and the effects of which have been constantly accumulating."

American Ambassador, London.

IV.

AMERICAN INQUIRY ON REPRISAL METHOD.

_The American Government on March 5 transmitted identic messages of inquiry to the Ambassadors at London and Paris inquiring from both England and France how the declarations in the Anglo-French note proclaiming an embargo on all commerce between Germany and neutral countries were to be carried into effect. The message to London was as follows:_

WASHINGTON, March 5, 1915.

In regard to the recent communications received from the British and French Governments concerning restraints upon commerce with Germany, please communicate with the British Foreign Office in the sense following:

The difficulty of determining action upon the British and French declarations of intended retaliation upon commerce with Germany lies in the nature of the proposed measures in their relation to commerce by neutrals.

While it appears that the intention is to interfere with and take into custody all ships, both outgoing and incoming, trading with Germany, which is in effect a blockade of German ports, the rule of blockade that a ship attempting to enter or leave a German port, regardless of the character of its cargo, may be condemned is not asserted.

The language of the declaration is "the British and French Governments will, therefore, hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation."

The first sentence claims a right pertaining only to a state of blockade. The last sentence proposes a treatment of ships and cargoes as if no blockade existed. The two together present a proposed course of action previously unknown to international law.

As a consequence neutrals have no standard by which to measure their rights or to avoid danger to their ships and cargoes. The paradoxical situation thus created should be changed and the declaring powers ought to assert whether they rely upon the rules governing a blockade or the rules applicable when no blockade exists.

The declaration presents other perplexities. The last sentence quoted indicates that the rules of contraband are to be applied to cargoes detained. The rules covering non-contraband articles carried in neutral bottoms is that the cargoes shall be released and the ships allowed to proceed.

This rule cannot, under the first sentence quoted, be applied as to destination. What, then, is to be done with a cargo of non-contraband goods detained under the declaration? The same question may be asked as to conditional contraband cargoes.

The foregoing comments apply to cargoes destined for Germany. Cargoes coming out of German forts present another problem under the terms of the declaration. Under the rules governing enemy exports only goods owned by enemy subjects in enemy bottoms are subject to seizure and condemnation. Yet by the declaration it is purposed to seize and take into port all goods of enemy "ownership and origin." The word "origin" is particularly significant. The origin of goods destined to neutral territory on neutral ships is not, and never has been, a ground for forfeiture, except in case a blockade is declared and maintained. What, then, would the seizure amount to in the present case except to delay the delivery of the goods? The declaration does not indicate what disposition would be made of such cargoes if owned by a neutral or if owned by an enemy subject. Would a different rule be applied according to ownership? If so, upon what principles of international law would it rest? And upon what rule, if no blockade is declared and maintained, could the cargo of a neutral ship sailing out of a German port be condemned? If it is not condemned, what other legal course is there but to release it?

While this Government is fully alive to the possibility that the methods of modern naval warfare, particularly in the use of submarines for both defensive and offensive operations, may make the former means of maintaining a blockade a physical impossibility, it feels that it can be urged with great force that there should be also some limit to "the radius of activity," and especially so if this action by the belligerents can be construed to be a blockade. It would certainly create a serious state of affairs if, for example, an American vessel laden with a cargo of German origin should escape the British patrol in European waters only to be held up by a cruiser off New York and taken into Halifax.

Similar cablegrams sent to Paris.

BRYAN.

V.

BRITISH REPLY TO THE AMERICAN INQUIRY.

_The reply from the British Government transmitted by the American Ambassador at London to the Secretary of State concerning the method of enforcing the reprisal order follows:_

LONDON, March 15, 1915.

Following is the full text of a note dated today and an Order in Council I have just received from Grey:

"1. His Majesty's Government have had under careful consideration the inquiries which, under instructions from your Government, your Excellency addressed to me on the 8th inst., regarding the scope and mode of application of the measures foreshadowed in the British and French declarations of the 1st of March, for restricting the trade of Germany. Your Excellency explained and illustrated by reference to certain contingencies the difficulty of the United States Government in adopting a definite attitude toward these measures by reason of uncertainty regarding their bearing upon the commerce of neutral countries.

"2. I can at once assure your Excellency that subject to the paramount necessity of restricting German trade his Majesty's Government have made it their first aim to minimize inconvenience to neutral commerce. From the accompanying copy of the Order in Council, which is to be published today, you will observe that a wide discretion is afforded to the prize court in dealing with the trade of neutrals in such manner as may, in the circumstances, be deemed just, and that full provision is made to facilitate claims by persons interested in any goods placed in the custody of the Marshal of the prize court under the order. I apprehend that the perplexities to which your Excellency refers will for the most part be dissipated by the perusal of this document, and that it is only necessary for me to add certain explanatory observations.

"3. The effect of the Order in Council is to confer certain powers upon the executive officers of his Majesty's Government. The extent to which those powers will be actually exercised and the degree of severity with which the measures of blockade authorized will be put into operation are matters which will depend on the administrative orders issued by the Government and the decisions of the authorities specially charged with the duty of dealing with individual ships and cargoes, according to the merits of each case. The United States Government may rest assured that the instructions to be issued by his Majesty's Government to the fleet and customs officials and Executive Committees concerned will impress upon them the duty of acting with the utmost dispatch consistent with the object in view, and of showing in every case such consideration for neutrals as may be compatible with that object, which is, succinctly stated, to establish a blockade to prevent vessels from carrying goods for or coming from Germany."

"4. His Majesty's Government has felt most reluctant, at the moment of initiating a policy of blockade, to exact from neutral ships all the penalties attaching to a breach of blockade. In their desire to alleviate the burden which the existence of a state of war at sea must inevitably impose on neutral sea-borne commerce, they declare their intention to refrain altogether from the exercise of the right to confiscate ships or cargoes which belligerents have always claimed in respect of breaches of blockade. They restrict their claim to the stopping of cargoes destined for or coming from the enemy's territory.

"5. As regards cotton, full particulars of the arrangements contemplated have already been explained. It will be admitted that every possible regard has been had to the legitimate interests of the American cotton trade.

"6. Finally, in reply to the penultimate paragraph of your Excellency's note, I have the honor to state that it is not intended to interfere with neutral vessels carrying enemy cargo of non-contraband nature outside European waters, including the Mediterranean."

(Here follows the text of the Order in Council, which already has been printed.)

American Ambassador, London.

VI.

FRENCH GOVERNMENT'S ANSWER.

_The French Government transmitted the following message:_

PARIS, March 14, 1915.

French Government replies as follows:

"In a letter dated March 7 your Excellency was good enough to draw my attention to the views of the Government of the United States regarding the recent communications from the French and British Governments concerning a restriction to be laid upon commerce with Germany. According to your Excellency's letter, the declaration made by the allied Governments presents some uncertainty as regards its application, concerning which the Government of the United States desires to be enlightened in order to determine what attitude it should take.