3. CORRESPONDENCE REGARDING WARFARE BETWEEN SUBMARINES AND ARMED MERCHANT VESSELS.

Informal and confidential letter from the Secretary of State to the British Ambassador.1

DEPARTMENT OF STATE, Washington, January 18, 1916.

MY DEAR MR. AMBASSADOR: It is matter of the deepest interest to my Government to bring to an end, if possible, the dangers to life which attend the use of submarines as at present employed in destroying enemy commerce on the high seas, since on any merchant vessel of belligerent nationality there may be citizens of the United States who have taken passage or are members of the crew, in the exercise of their recognized rights as neutrals. I assume that your excellency's Government are equally solicitous to protect their nationals from the exceptional hazards which are presented by their passage on a merchant vessel through those portions of the high seas in which undersea craft of their enemy are operating.

While I am fully alive to the appalling loss of life among noncombatants, regardless of age or sex, which has resulted from the present method of destroying merchant vessels without removing the persons on board to places of safety, and while I view that practice as contrary to those humane principles which should control belligerents in the conduct of their naval operations, I do not feel that a belligerent should be deprived of the proper use of submarines in the interruption of enemy commerce since those instruments of war have proven their effectiveness in this particular branch of warfare on the high seas.

In order to bring submarine warfare within the general rules of international law and the principles of humanity without destroying its efficiency in the destruction of commerce, I believe that a formula may be found which, though it may require slight modifications of the practice generally followed by nations prior to the employment of sub

1 Same, mutatis mutandis, to the Ambassador of France, the Russian Ambassador, the Ambassador of Italy, the Belgian Minister, and, on January 24, 1916, to the Japanese Ambassador.

marines, will appeal to the sense of justice and fairness of all the belligerents in the present war.

Your excellency will understand that in seeking a formula or rule of this nature I approach it of necessity from the point of view of a neutral, but I believe that it will be equally efficacious in preserving the lives of all noncombatants on merchant vessels of belligerent nationality.

My comments on this subject are predicated on the following propositions:

1. A noncombatant has a right to traverse the high seas in a merchant vessel entitled to fly a belligerent flag and to rely upon the observance of the rules of international law and principles of humanity if the vessel is approached by a naval vessel of another belligerent.

2. A merchant vessel of enemy nationality should not be attacked without being ordered to stop.

3. An enemy merchant vessel, when ordered to do so by a belligerent submarine, should immediately stop.

4. Such vessel should not be attacked after being ordered to stop unless it attempts to flee or to resist, and in case it ceases to flee or resist, the attack should discontinue.

5. In the event that is it impossible to place a prize crew on board of an enemy merchant vessel or convoy it into port, the vessel may be sunk, provided the crew and passengers have been removed to a place of safety.

In complying with the foregoing propositions which, in my opinion, embody the principal rules, the strict observance of which will insure the life of a noncombatant on a merchant vessel which is intercepted by a submarine, I am not unmindful of the obstacles which would be met by undersea craft as commerce destroyers.

Prior to the year 1915 belligerent operations against enemy commerce on the high seas had been conducted with cruisers carrying heavy armaments. Under these conditions international law appeared to permit a merchant vessel to carry an armament for defensive purposes without losing its character as a private commercial vessel. This right seems to have been predicated on the superior defensive strength of ships of war, and the limitation of armament to have been dependent on the fact that it could not be used effectively in offense against enemy naval vessels, while it could defend the merchantmen against the generally inferior armament of piratical ships and privateers.

The use of the submarine, however, has changed these relations. Comparison of the defensive strength of a cruiser and a submarine shows that

the latter, relying for protection on its power to submerge, is almost defenseless in point of construction. Even a merchant ship carrying a small caliber gun would be able to use it effectively for offense against a submarine. Moreover, pirates and sea rovers have been swept from the main trade channels of the seas, and privateering has been abolished. Consequently, the placing of guns on merchantmen at the present day of submarine warfare can be explained only on the ground of a purpose to render merchantmen superior in force to submarines and to prevent warning and visit and search by them. Any armament, therefore, on a merchant vessel would seem to have the character of an offensive armament.

If a submarine is required to stop and search a merchant vessel on the high seas and, in case it is found that she is of enemy character and that conditions necessitate her destruction, to remove to a place of safety all persons on board, it would not seem just or reasonable that the submarine should be compelled, while complying with these requirements, to expose itself to almost certain destruction by the guns on board the merchant vessel.

It would, therefore, appear to be a reasonable and reciprocally just arrangement if it could be agreed by the opposing belligerents that submarines should be caused to adhere strictly to the rules of international law in the matter of stopping and searching merchant vessels, determining their belligerent nationality, and removing the crews and passengers to places of safety before sinking the vessels as prizes of war, and that merchant vessels of belligerent nationality should be prohibited and prevented from carrying any armament whatsoever.

In presenting this formula as a basis for conditional declarations by the belligerent Governments, I do so in the full conviction that your Government will consider primarily the humane purpose of saving the lives of innocent people rather than the insistence upon a doubtful legal right which may be denied on account of new conditions.

I would be pleased if you would be good enough to bring this suggestion to the attention of your Government and inform me of their views upon the subject, and whether they would be willing to make such a declaration conditioned upon their enemies making a similar declaration.

A communication similar to this one has been addressed to the Ambassadors of France, Russia, and Italy, and the Minister of Belgium at this capital.

I should add that my Government is impressed with the reasonable

ness of the argument that a merchant vessel carrying an armament of any sort, in view of the character of submarine warfare and the defensive weakness of undersea craft, should be held to be an auxiliary cruiser and so treated by a neutral as well as by a belligerent Government, and is seriously considering instructing its officials accordingly.

SIR: I have the honor to transmit herewith inclosed a copy, with translation, of a circular note verbale, dated the 10th instant, from the Austro-Hungarian Ministry of Foreign Affairs, as communicated in my telegram of that date, No. 1144, announcing that orders had been issued to the Austro-Hungarian naval forces to treat all merchant vessels armed with cannon as vessels of war.

This announcement, which was made simultaneously with a similar one by the German Government, has been received with general approval by the entire newspaper press in the Monarchy.

The Governments of the neutral powers are aware that in the course of the year 1913 the British Admiralty caused a number of large English merchant vessels to be armed. As was announced on the 26th of March, 1913, in the House of Commons by the First Lord of the Admiralty, the armament of the said steamers was to protect them against the dangers from enemy vessels transformed into auxiliary cruisers and at the same time to serve only for defense.

The experiences gained during the course of the present war show that

a considerable number of British merchant steamers have made use of guns placed on board them against hostile war vessels, and that not only with the intention of resisting the legitimate exercise of the right of capture but also of attacking and destroying hostile war vessels.

As appears from a memorandum transmitted by the Imperial German Government to the neutral powers under to-day's date, instructions have been found on board English steamers proving that the Royal British Government themselves have incited their merchant vessels to these illegal acts, and that in direct contradiction of the assurances given to the Department of State at Washington.

The example of Great Britain has been followed during the course of the hostilities by her allies, especially by France and by Italy.

Without desiring to enter into an investigation of the strange claim put forward by the Royal British Government, according to which the merchant vessels, armed by the said Government, preserved their inoffensive character, whereas a merchant vessel armed by an enemy is to be considered by the English naval forces as an auxiliary cruiser, the Imperial and Royal Government limit themselves to stating that all merchant ships armed with cannon, for whatever purpose, by this very fact lose the character of peaceable vessels.

Under these conditions orders have been given to the Austro-Hungarian naval forces to treat such ships as belligerent vessels, an order which, however, will not be put into execution until the 29th of February, 1916.

This delay is granted in the interest of the neutral powers, to the end that they may preserve their nationals from the danger to which they expose themselves by entrusting their persons and goods to armed merchant vessels of the states at war with Austria-Hungary and may also warn those of their nationals who find themselves already on board the vessels of the category indicated.

To the Embassy of the United States of America, Vienna.

Ambassador Gerard to the Secretary of State.

No. 2451.]

AMERICAN EMBASSY, Berlin, February 14, 1916.

SIR: I have the honor to transmit to you herewith three copies of the memorandum of the Imperial German Government on the treatment