Shall it be Again ?

XVI
INTERNATIONAL LAW—BRITISH AND GERMAN VIOLATIONS COMPARED



Now what led to our remarkable reversals on the points of law involved in the dispute with Germany ?

Was it principle—or expediency ?

Were England’s violations of international law, in relation to American rights, any less clear or pervasive than those of Germany ?  Were they less reprehensible, either in number or degree, or by any other material or moral measure ?

On the other hand, in the beginning we characterized the British offenses in quite as emphatic terms as we did those of Germany;  we asserted the same obligation to resist them.  Here are some notable quotations :

Protest against seizures and detentions, December 26, 1914 :

The present policy of His Majesty’s Government toward neutral ships and cargoes ... constitutes restrictions upon the rights of American citizens on the high seas which are not justified by the rules of international law or required under the principles of self-preservation.

Blockade note, March 30, 1915 :

The Order in Council of the 15th of March would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace. ... It is manifest that such limitations, risks and liabilities, placed upon the ships of a neutral power on the high seas ... are a distinct invasion of the sovereign right;  of the nation whose ships, trade, or commerce, is interfered with ... [The] course of action [of the British government] is without precedent in modern warfare ... [and] clearly subversive of the rights of neutral nations an the high seas.

Protest against prize-court confiscations, July 14, 1915:

Insofar as the interests of American citizens are concerned, the government of the United States will insist upon their rights under the principles and rules of international law as hitherto established, governing neutral trade in time of war, without limitation or impairment by Orders in Council or other municipal legislation by the British government, and will not recognize the validity of prize-court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizen, under international law.

Blockade note, October 21, 1915 :

It has been conclusively shown that the methods sought to be employed by Great Britain to obtain and use evidence of enemy destination of cargoes bound for neutral ports, and to impose a contraband character upon such cargoes, are without justification;  that the blockade, upon which such methods are partly founded, is ineffective, illegal and indefensible;  that the judicial procedure offered as a means of reparation for an international injury is inherently defective for the purpose, and that in many cases jurisdiction is asserted in violation of the law of nations.  The United States, therefore, cannot submit to the curtailment of its neutral rights by these measures. ... The United States ... cannot with complacence suffer subordination of its rights and interests to the plea that the exceptional geographical position of the enemies of Great Britain requires or justifies oppressive and illegal practices. ... It is of the highest importance to neutrals not only of the present day but of the future that the principles of international law be maintained unimpaired.

This task of championing the integrity of neutral rights, which have received the sanction of the civilized world against the lawless conduct of belligerents arising out of the bitterness of the great conflict which is now wasting the countries of Europe, the United States unhesitatingly assumes, and to the accomplishment of that task it will devote its energies, exercising always that impartiality which from the outbreak of the war it has sought to exercise in its relations with the warring nations.

Note of May 24, 1916:

The present practice [of seizing ships on high seas, taking them into port, and there confiscating mail] is a violation of ... the Hague convention ... The government of the United States ... can no longer tolerate the wrongs which citizens have suffered and continue to suffer through these methods. ... Manifestly, a neutral nation cannot permit its rights on the high seas to be determined by belligerents, or the exercise of those rights to be permitted or denied arbitrarily by the government of a warring nation.  The rights of neutrals are as sacred as the rights of belligerents and must be as strictly observed. ... Only a radical change in the present British and French policy, restoring to the United States its full rights as a neutral power, will satisfy this government.

The arguments upon which these denunciations of England are based are infinitely better reasoned and supported than the arguments upon which the denunciations of Germany are based.  Against England, we were able to cite copiously from authority and precedent, to quote British statesmen against Britain, to call up England’s record with telling effect;  while against Germany, we were forced to lay down new principles, which we dubbed international law, bolstering them up with rhetoric;  and even upon these we put ourselves out of court by reversals on essential points.

The only fair conclusion to be drawn from a study of this pre-war correspondence is that the record of England, in trampling upon American rights, is not only as vulnerable and reprehensible as that of Germany, but far more so.  The very points of law which America alleged against Germany could be brought against England with greater reason.

Our complaints against England specified violations in definition of contraband;  seizures and detentions, instead of visit and search upon the high seas;  practices of British prize courts in condemning ships and cargoes;  hovering of British warships off American coasts;  misuse of the neutral flag;  confiscation of American mail from ships illegally detained;  the blacklist;  and the so-called blockade;  while the single complaint against Germany was that at times she failed to conduct her submarine operations in conformity with the accepted practices of cruiser warfare.

But England also failed to conduct her operations in conformity with the accepted practices of cruiser warfare.  Moreover, England, operating with cruisers, could not urge the extenuating circumstances which America had (at times) admitted applied to submarines.  When America complained to England—on precisely the same grounds under international law upon which all of the complaints against Germany were based—England’s only defense was convenience.  Said England complacently to America :

To do so [bring ships into port without evidence] is not to be looked upon as a belligerent right, but as an adaptation of the existing right to the modern conditions of commerce.  (British note of Feb. 10, 1915.)

Germany could have used precisely the same words, with better justice, in excusing her submarine policy.  England never gave up the practice which she here admits is illegal.  But our President claimed justification for war in the fact that Germany finally refused to yield on exactly the same principle.

To allege a difference, it was necessary to shift from questions of principle to questions of effect.  “How about the `Lusitania’?” But the question of effect is irrelevant, since the effect, as has been pointed out, was not chosen by the offending party.  As Senator Norris demanded, in the debate on the Armed Ships Bill :

Why have we kept out of the North Sea ? ... Simply because it is altogether more dangerous for ships to go through a mine field than it is for ships to go through a submarine field.  Mining the high seas is incomparably more inhuman and ruthless than warfare by means of submarines.

In the matter of warning, Germany invariably showed greater concern for preventing injuries to neutrals than did England.  England gave the world but three days’ notice of the establishment of her military area upon the high seas.  Her “blockade” went into effect on the day of its announcement, and was applied retroactively upon all ships which had left their ports later than two weeks previously.  Many enlargements in England’s contraband lists, and new “wrinkles” in her aggressions upon neutrals, were not announced at all until after she had put them into practice and made neutrals suffer from them.

On the other hand, Germany gave the world fourteen days’ notice of the establishment of her military area upon the high seas, and twenty-one days’ notice of her determination to deal with all armed merchant ships as ships of war.  Of her “unrestricted warfare,” only one day’s notice was given, but, in practice, action against neutral ships was withheld for a reasonable period, as was promised in the notification.

In its effort to retain the friendship of the United States (Note of Mar. 6, 1917), Austria-Hungary argued that the submarines of the Teutonic powers had never really attacked any merchant vessel without adequate warning.  As it was suicidal—because of the vulnerability of undersea craft—for the submarine to attempt always to give warning immediately before an attack, the governments of the Central Powers took great pains to give general warning beforehand.  Austria-Hungary pointed out that such warning was more humane and considerate if given before the embarkation of the passengers, than if reserved until immediately before the destruction of the vessel, as was the practice in cruiser warfare.  The note pointed out that, under the latter circumstances, it is impossible absolutely to guarantee the lives of passengers, since the best thing that can be done is to take the passengers aboard the warship, which is subject to fire in case of meeting an enemy before reaching port.


American war propagandists, during the first few months after our declaration of war, habitually worked themselves into a great heat over the proposition that Germany broke some very solemn promises which she had made to the United States.  This accusation originated with the President, who, in announcing to Congress his break with Germany (Feb. 3, 1917), asserted that the declaration of Germany, initiating unrestricted submarine warfare “withdraws the solemn assurance given in the Imperial Government’s note of the 4th of May, 1916.”

Taking the cue, Secretary Lansing was found declaring a little later:  “Of course, the immediate cause of our war against Germany was the announced purpose of the German government to break its promise as to indiscriminate warfare.”  (War-Information Series, No. 5, p. 3.) This alleged action he further characterized as a “deliberate breach of faith” and an “act of perfidy,” even declaring it to be “in itself sufficient to force us to enter the war if we would preserve our self-respect.”

What are the facts ?

Here is the alleged “solemn promise” of May 4, exactly as it was made :

As the German government repeatedly declared, it cannot dispense with the use of the submarine weapon in the conduct of warfare against enemy trade.  The German government, however, has now decided to make a further concession, adapting methods of submarine warfare to the interests of neutrals. ... The German government, guided by this idea, notifies the government of the United States that German naval forces have received the following order :

'In accordance with the general principles of visit and search and the destruction of merchant vessels recognized by international law, such vessels, both within and without the area declared a naval war zone, shall not be sunk without warning and without safeguarding human lives, unless the ship attempt to escape or offer resistance.’

But neutrals cannot expect that Germany, forced to fight for existence, shall for the sake of neutral interests restrict the use of an effective weapon, if the enemy is permitted to continue to apply at will methods of warfare violating rules of international law.  Such a demand would be incompatible with the character of neutrality. ... Accordingly, the German government does not doubt that the government of the United States will now demand and insist that the British government shall forthwith observe the rules of international law universally, recognized before the war, as are laid down in the notes presented by the government of the United States to the British government December 28, 1914, and November 5, 1915.

Should steps taken by the government of the United States not attain the object it desires, to have the laws of humanity followed by all belligerent nations, the German government would then be facing a new situation in which it must reserve to itself complete liberty of decision.

Gottlieb von Jagow.

This was the last of a long series of appeals to the United States for the equal and impartial treatment which neutrality requires.  When, after nine months of waiting, in which the equal and impartial treatment was not forthcoming, Germany announced the unrestricted use of her submarines’, she pointed out distinctly the situation which, to use her own words, “gives back to Germany the freedom of action which she reserved in her note addressed to the government of the United States on May 4, 1916.”

Where is the “breach of faith?” Where is the “perfidy?” Where are the “broken promises?”

Nothing could be more eloquent of the weakness of the case against Germany than this stock charge, known by every American government official and every student of the war to be baseless.

Did the breaking of promises, with regard to the conduct of warfare affecting American rights, require us to go to war “if we would preserve our self-respect,” then America would have been at war with England before the end of 1914.  For in the note of October 21, 1915, we find America protesting against the breaking of two promises, made and broken in 1914:  the first that England would not “interfere with trade with the countries contiguous to the territories of the enemies of Great Britain”;  the second, that “inconvenience would be minimized by the discretion left to the courts in the application of the Order in Council, and by the instructions which it was said would be issued [as to the execution of the blockade of Germany].”

The promise of August 25, 1914, that “British merchant vessels .... will never fire unless fired upon, and that they will never under any circumstances attack any vessel,” was also habitually broken, and by express orders from the British government, as is shown by the “confidential instructions” reproduced in the American White Book, (vol. III, p. 181).


Regarding the Declaration of London, England commenced breaking promises during the first days of the war, and broke them repeatedly thereafter.

Much was made of the fact, by apologists for England, that the latter country never ratified the Declaration of London.  Even were this strictly true, it would be scant extenuation for British violations thereof;  for the Declaration of London was not a new code of laws, but simply “an agreement as to what are the generally recognized rules of international law”—to employ the words of the document itself.  The fact is that, at the outbreak of the war, the British government did agree to abide by the Declaration of London, with certain specified amendments, then and there set down.  We were so notified in the note of August 22, 1914.  In the Order in Council of August 20, 1914, the thing was put in this way :

Whereas, the governments of France and Russia have informed His Majesty’s Government that during the present hostilities it is their intention to act in accordance with the provisions of the convention known as the Declaration of London, signed on the 26th day of February, 1909, so far as may be practicable.

Now, therefore, His Majesty, by and with the advice of his Privy Council, is pleased to order, and it is hereby ordered, that during the present hostilities the convention known as the Declaration of London shall, subject to the following additions and modifications, be adopted as if the same had been ratified by His Majesty.

But the promise was broken by further “modifications,” which followed, one after another—all dictated purely by British convenience—until it became too ridiculous to pretend any regard whatever for the document in question.


The first violations of American rights in the European war consisted in the sowing of mines upon the high seas.  The question as to whether England or Germany sowed the first of these mines is a matter of dispute, the merits of which may never be determined.  But the point is not essential in determining to which side belongs the defense of retaliation.  The essential question is not who perpetrated the original violation of international law, but (1) who perpetrated the violations against which America first protested, and (2) who held most tenaciously to the course which America contended against as unlawful.

An examination of the American White Book shows that, until February 10, 1915, America had no complaint whatever against Germany an grounds of international law, while she was at variance with England on questions of international law from the first week of the war.

When, February 4, Germany issued her military-area proclamation, frankly defending it as a retaliatory measure, she had America’s own condemnation of her adversary’s measures in support of her stand.  But when, February 10, England for the first time advanced retaliation as a defense for her own violations of international law, she had no American protests whatever upon which to base her claim—no argument that was admissible from the American point of view.

The evidence of the relative tractability of Germany is no less overwhelming.  In the early months of the war the United States was continually striving to procure for neutrals “a standard by which to measure their rights or to avoid danger to their ships and cargoes.”  (Note of Mar. 5, 1915.) Germany was continually trying to do the same.  England was continually refusing.

England’s military area upon the high seas was established November 5, 1914;  Germany’s was established February 18, 1915.  But even then Germany showed a greater regard for neutral rights, since Germany’s war was declared only against enemy vessels.  England’s war, however, was declared against neutral vessels.

In its note of May 4, 1916, Germany pointed out :

The German government will only state that it has imposed far-reaching restraints upon the use of the submarine weapon, solely in consideration of neutrals’ interests, in spite of the fact that these restrictions are necessarily of advantage to Germany’s enemies.  No such consideration has ever been shown neutrals by Great Britain and her allies.

Three months previously, President Wilson had publicly admitted that the instructions given to commanders of German submarines “are consistent for the most part with the law of nations.”  (Speech at St. Louis, Feb. 3, 1916.)

One cannot read the diplomatic correspondence between America and England, and between America and Germany, without reaching the conclusion that the Wilson Administration was fully aware that it was closer to Germany than to England, in matters of principle.  This fact was at times even acknowledged in words.  For example :

The government of the United States and the Imperial German Government are contending for the same great object;  have long stood together in urging the very principles upon which the government of the United States now so solemnly insists.  They are both contending for the freedom of the seas.  (American note to Germany, July 21, 1915.)

Not at any time, nor for any period, until February 1, 1917, did Germany stand as squarely against America’s contentions as England stood from November 5, 1914.  Germany’s unrestricted warfare against merchant vessels, within a certain area upon the high seas, began February t, 1917.  England’s began November 5, 1914.  There is not an iota of difference in principle between these two decrees—and to Germany belongs the defense of retaliation.

Why did not America break diplomatic relations with England, November 5, 1914, and move rapidly toward war ?  Why did not the United States insist, as it repeatedly told England that it would, “that the relations between it and His Majesty’s Government be governed, not by a policy of expediency, but by those established rules of international conduct upon which Great Britain in the past has held the United States to account when the latter nation was engaged in a struggle for national existence?” (Note of Oct. 21, 1915.)

Why did America reverse itself suddenly on the status of armed merchant ships, on the use of the submarine for operations against commerce, and on the single standard as a condition of neutrality, thus swinging itself around into less glaring inharmony with the British position, and squarely against the German position ?

We happen to have the answer of President Wilson himself, as given by his State Department to the United States Senate, which had propounded similar questions to the above :

The fact that the commerce of the United States is interrupted by Great Britain is consequent upon the superiority of her navy upon the high seas.  History shows that whenever a country has possessed that superiority, our trade has been interrupted, and that few articles essential to the prosecution of the war have been allowed to reach its enemy from this country.  (Answer of American Secretary of State to U.S. Senate, Jan. 20, 1915—American White Book, Vol. II. p. 59.)

In a word, we are guided, not by principle, but by—expediency.  We yield to superior force, and fight the inferior—on the same principle.

The fact stands out, dodge as one may, that the only cause in dispute between the United States and Germany, was the right to ship supplies and passengers to the enemies of Germany, in the face of having given up the right to ship supplies and passengers to Germany itself.

Our own record puts us out of court.  The British proclamation of November, 1914, establishing a military area upon the high seas, was not included in the American White Book.  So important a paper could hardly have been omitted without deliberate intent.  The purpose must have been to conceal, in a measure, our diplomatic inconsistencies.  But, in spite of the suppression, the official record is completely self-convicting.  Our own White Book forever disposes of any claim to championship of international law as a cause for America’s war.




XVII
INTERNATIONAL LAW—AMERICA’S OFFENSES AS A BELLIGERENT



IF offenses against the law of nations required the American people, in honor, to go to war with the offender, then we would have gone to war not only with Germany and her allies, but with England and her allies, and with our own government as well.

In his war message, President Wilson made this solemn promise :  “We shall ... as belligerents ... observe with proud punctilio the principles of right and of fair play we profess to be fighting for.”

In actual practice he perpetrated many infractions of these principles not only in relation to our enemies, but in relation to the world of neutrals.  Far from championing the rights of neutrals, if the standards which we ourselves laid down in our pre-war disputes had been accepted and applied by the neutral nations of the earth, every neutral flying a flag upon the high seas would have been compelled to go to war against us.

So far as our declared enemies were concerned, our President began to offend, under “the principles of right and fair play,” long before we formally entered war.  He began to offend on the day he withdrew his opposition to the loaning of money by American bankers to belligerent governments, and so departed from his own interpretation of strict neutrality.

Against the letter of the law, he began to offend when he ceased to preserve an equally inflexible front toward violations of American rights, respectively, by Germany and England, and—in order to conceal this offense—he set up the ridiculous “single, not joint;  absolute, not relative” theory of responsibility.

Quotations from the letter of international law in this chapter are taken from Professor T.J. Lawrence, whose writings are used as textbooks both by the English Admiralty and the American navy.  Dealing with the law of neutrality, Professor Lawrence lays down as a primary duty of a nation to “refrain from giving to one side, in matters connected with hostilities, privileges which it denies to others.”

The same position had been taken by George Washington more than a century before.  When, in the eighteenth century, England attempted to stop all American commerce with France, just as in 1915 she attempted to stop all American commerce with Germany, Thomas Jefferson, Washington’s Secretary of State, wrote into his protest to England (Sept. 7, 1793):  “Were we to withhold from her [France] supplies of provisions we should in like manner be bound to withhold them from her enemies also.”

As to the deliberate plan of President Wilson to begin hostilities without first declaring war, the third convention of the Hague Conference of 1907, signed by both the United States and Germany, laid down the principle that hostilities “must not commence without previous and explicit warning, in the form either of a declaration of war with the reasons assigned for it, or of an ultimatum with conditional declaration of war.”


America has her scraps of paper, as well as other countries.  Our Treaty of 1828 with the Kingdom of Prussia is one of them.  In a note to Germany dated May 13, 1915, the Wilson Government admitted that the Treaty of 1828 was still in force :

The United States and Germany are bound together not only by special ties of friendship, but also by the explicit stipulations of the Treaty of 1828 between the United States and the Kingdom of Prussia.

But the Treaty of 1828 revives parts of the Treaty of 1799 with the Kingdom of Prussia, including the whole of Articles 23 and 24. Article 23 reads :

If war should arise between the two contracting parties, the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance;  and all the women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen, unarmed and inhabiting unfortified towns, villages or places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy into whose power by the events of war they may happen to fall;  but if anything is necessary to be taken from them for the use of such armed force the same shall be paid for at a reasonable price.

But upon declaring war, we prohibited the departure of any German subject from the territory of the United States.  We placed German subjects under restriction.  We seized more than one hundred ships belonging to German subjects, in American harbors, and used them in the war against Germany.  We confiscated many millions of dollars’ worth of property of German subjects, of all kinds and in all parts of the United States.  We sold many millions of dollars’ worth of this property, and used the money to fight Germany.  We so arranged the circumstances of such sales that the owners will probably never be able to recover their possessions.  Not a dollar of compensation was given, and there was no pretense that adequate compensation would ever be given.

President Wilson offered, at the time, what may be termed an excuse for tearing up the Treaty of 1828.  It was that Germany had violated American rights.[1] The point is irrelevant, since the stipulation in question was framed exclusively for a state of war;  by its very provisions it begins to operate only when war begins, and prewar differences cannot call its validity into question.  This is acknowledged in the treaty, itself;  Article 24 concludes with the following words :

[1] Reply to German protocol, Mar. 20, 1917.


And it is declared that neither the pretense that war dissolves treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article;  but on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nations.

Such stipulations as those quoted above, providing for the safety of alien enemies, are to be found in almost innumerable treaties between governments.  In discussing them, Lawrence says :

Such stipulations are hardly needed now;  for the old right of arrest has been rendered obsolete by the continuous contrary custom of nearly a hundred and fifty years.  The only case of detention to be found in modern times occurred in 1803, when Napoleon arrested the British subjects found in France after the rupture of the Treaty of Amiens;  but this was placed on the ground of reprisal, and has almost always been regarded as a violent proceeding in defiance of right.  (“Principles of International Law,” p. 388.)

Regarding the rightful policy to be pursued toward enemy property in general, he says :

In modern times, the real property of enemy subjects has not been interfered with by the belligerent states in whose territory it was situated, even when the owners resided in their own or neutral states, the one exception being an act of the Confederate Congress passed in 1861 for the appropriation of all enemy property, found within the Confederacy, except public stocks and securities.  This proceeding was deemed unwarrantably severe;  and contrary usage has been so uniform that we may safely regard the old right to confiscate or sequestrate as having become obsolete through disuse. ... What is done by a weaker party in a bitter civil war is hardly a guide for ordinary belligerents in a struggle between independent states.  If it is right to argue from the practice of nations to the law of nations, we may join the great majority of continental publicists, in the assertion that the international law of our own times does not permit of the confiscation of the private property of enemy subjects found on the land territory of the state, at the outbreak of war. (pp. 424-426.)

Regarding merchantmen which are found in an enemy port at the commencement of hostilities, in the sixth Hague convention of 1907, appear the following clauses :

(a)  When a merchant ship belonging to one of the belligerent powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately, or after a reasonable number of days of grace, and to proceed, after being furnished with a pass, direct to its port of destination or any other port indicated. ...

(b)  A merchant ship unable, owing to circumstances of force majeure, to leave the enemy port within the period contemplated in the above article, or which was not allowed to leave, cannot be confiscated.

When war was declared against Spain in 1898, a Presidential proclamation allowed Spanish ships thirty days in which to depart from our harbors and reach home.  Enemy aliens were disturbed neither in their persons nor in their property.


By one who holds the extreme theory that the German people are a race of savages, bent on the destruction of the world, that they had to be exterminated or brought to their knees at all costs, it may be that any offense under international law against these people will be condoned, but what excuse can be given for our offenses against the world of neutrals ?

The President’s own answer, on July 24, 1915, was that there can be no excuse :

Illegal and inhuman acts, however justifiable they may be thought to be against an enemy who is believed to have acted in contravention of law and humanity, are manifestly indefensible when they deprive neutrals of their acknowledged rights.  (Note to Germany.)

Before April, 1917, we professed to be guided by consideration for the rights of neutrals in general.  We notified the world that we stood ready to go to war in defense of neutral rights.  We even professed to go to war as a champion of neutral rights.  But after April, 1917, what treatment did neutral rights receive at our hands ?

After April, 1917, England did not abate in a single detail her violations of neutral rights;  yet we became an ally of England and joined heartily in trampling upon the very rights which we had so loftily promised to defend.  We even carried our own aggressions upon neutral rights to greater extremes than they had ever been carried against us.

We had signed the Declaration of London ourselves.  We had asked the belligerents to abide by it.  Germany and her allies had at all times been willing to abide by it, provided their enemies would abide by it, also.  When we became an ally of Germany’s enemies, did we again propose that all belligerents abide by the Declaration of London ?  Would we have accepted such a proposal made by Germany ?  When we went to war we paid no heed whatever to the provisions of the Declaration of London.  It was an offense against Germany for which retaliation cannot be offered as an excuse.  It was an offense against neutrals absolutely indefensible, when judged either by our own previously professed standards of international conduct, or by the letter of the law itself.

Again, in January, 1916, England announced her Trading with the Enemy Act, which contemplated a blacklist.  After the act had been in force for six months, America denounced it in the following terms :

It is evident that they [the blacklist measures] are inevitably and essentially inconsistent with the rights of the citizens of all the nations not involved in war ... [and] ... inconsistent with that true justice, sincere amity, and impartial fairness which should characterize the dealings of friendly governments with one another.  (Note of July 26, 1916, to England.)

Yet our own Trading with the Enemy Act, including the blacklist features, was a copy of England’s, and we applied it to neutrals more severely than England ever applied it to us.

In its protest of December 26, 1914, to England, America quoted a pronouncement of the British Premier, Lord Salisbury, during the South African war, as follows :

Foodstuffs, though they have a hostile destination, can be considered as contraband of war only if they are for the enemy’s forces;  it is not sufficient that they are capable of being so used;  it must be shown that this was in fact their destination at the time of their seizure.

In reply England admitted :

No country has maintained more stoutly than Great Britain, in modern times, the principle that a belligerent should abstain from interference with the foodstuffs intended for the civil population.  (Note of Feb. 10, 1915.)

Yet England only made more and more stringent her measures of starvation against Germany;  while America, on becoming an ally of England, took drastic action to make the system of starvation absolutely complete.  Not only did we offend against Germany, but we offended against the entire neutral world in precisely the same manner as England had offended against us.

Our blockade note to England, of October 21, 1915, ought to be read by every patriot who really cares for his country’s honor.  That note is unanswerable.  It outlaws the British paper blockade on half a dozen counts.  The British precedent, which America quotes, alone constitutes an overwhelming case.

Blockades,” says the Declaration of Paris, which Britain signed, “in order to be binding, must be effective;  that is to say, maintained by force sufficient really to prevent access to the coasts of the enemy.”  But America pointed out that the coasts of Germany had always been open to Scandinavian trade.

There is no better settled principle of the law of nations than that which forbids the blockade of neutral ports in time of war,” urged America.  Against the blockade of Scandinavian ports, we quoted the instructions of Sir Edward Grey to the British delegates to the London conference, “setting out the views of His Majesty’s Government, founded on the decisions of the British courts,” as follows :  “A blockade must be confined to the ports and coasts of the enemy,” and “Where the ship does not intend to proceed to the blockaded part, the fact that goods are to be sent by sea, or inland transport, is no ground for condemnation.”

We showed that the blockade of Scandinavian ports was intentionally not applied by England to her own ships, doubly condemning it under a decision of England during the Crimean War, that “if belligerents themselves traded with blockaded ports they cannot be regarded as effectively blockaded.”

It was on grounds like these that President Wilson based his conclusion that the British blockade was “ineffective, illegal, and indefensible,” and announced his high decision to devote the energies of America to the vindication of neutral rights.  Yet when we went to war, we devoted our energies largely to making more completely operative this very “indefensible” aggression upon such rights.

One of the most remarkable offenses ever perpetrated against a neutral nation was our seizure of a large fraction of the merchant fleet of Holland, and our employment of these vessels in the war against Germany.  Previously to our becoming her ally, England had confiscated a number of American ships, but she had made no wholesale grabs of shipping, and in each case she had offered a specific pretext, against which America had protested under the rules of international law.  But when President Wilson took the merchant vessels of Holland, he gathered in all he could lay his hands on—sixty-eight ships, totaling in round numbers, half a million tons.

If, in confiscating the merchant vessels of German subjects found in our harbors at the outbreak of the war, we trampled upon international law, how much more flagrantly must we have trampled upon international law in confiscating ships of neutrals whom we had invited to trade with us ! True, the President professed to act “in accordance with international law and practice.”  (Proclamation taking over Dutch ships, Mar. 20, 1918.) And the newspapers, day after day, referred to the action as being within our rights under international law, and mentioned the “law of angary,” as if it were a common and accepted course of belligerents in time of war.

It may be that this particular deception did not pass discerning laymen as successfully as certain others.  It may be that the inconsistency, not to say rank injustice, of our proceeding was sensed by many.  We confiscate outright many millions of dollars’ worth of the property of neutral peoples, whose conduct toward us is without reproach, whose vessels enjoy a certain guarantee of safety in our ports under commercial treaty.  We strike a staggering blow at that nation’s foreign commerce, which happens to be of very much greater importance to it than our own foreign commerce ever was to us.  We do this with no other excuse than that we can use these foreign ships to our own advantage, and we defend our action under the pretense that we are within our rights under international law !

Discerning laymen may also remember that, in all the official and press camouflage connected with the taking over of the Dutch ships, only one international precedent for the action was mentioned, and that precedent came from Germany, against whom we were making the most exaggerated charges of lawlessness !

The “law of angary!” Is it a law ?  Here is what Lawrence has to say of the grabbing of neutral ships by countries at war, of the “law of angary,” and the “German precedent,” which we refer to in defense of our own action :

No recent case of such a high-handed proceeding is to be found.  Treaty after treaty forbids it. ... We may imagine how fiercely it might be resented if we contemplate for a moment what would be the consequences of, say, the seizure by the United States government of all the liners in the port of New York, in order to carry to its destination an expedition against a Central American republic hastily planned in a sudden emergency.  Half the civilized world would suffer, and the other half would make common cause with it.  Even the milder manifestations of the power to seize are looked on askance, and provoke so much controversy that belligerent states will be unwilling to resort to them in the future.  The last instance bears out this view.  In 1870, the Germans sank six English colliers in the Seine at Duclair to stop the advance up the river of some French gunboats.  Compensation was demanded, and after some hesitation given;  and the act was excused on the ground that the danger was pressing and could not be met in any other way. ... The practice ... is so indefensible that it is now scarcely defended.  Belligerents must make war with their own resources, and what they can capture from the enemy, not with neutral property which is unfortunate enough to be for the moment in their power. ... In the vigorous words of Dana, '“angary” is not a right at all, but an act resorted to from necessity, for which apology and compensation must be made at the peril of war.’ (pp. 626-628.)

We cannot defend the seizure of the Dutch ships on the ground of immediate necessity.  We did not apologize for their seizure;  we preferred hypocritically to pretend that our wrong was a right.  We promised compensation, “at the end of the war,” but it is easy to understand that such compensation, based on the assessed value of the ships, in view of the existing need of the Dutch nation, could not be satisfactory.




XVIII
OTHER “INTOLERABLE WRONGS”



“I SHALL not go back to debate the causes of the war,” said President Wilson, in his message to Congress, December 4, 1917.  “The intolerable wrongs done and planned against us by the sinister masters of Germany have long since become too grossly obvious and odious to every true American to need to be rehearsed.”

We have disposed of the “intolerable wrongs” involved in the submarine dispute.  What others appear in the official list of America’s war causes ?

The President’s most complete statement of them appears in his Flag Day address, June 14, 1917 :

It is plain how we were forced into the war.  The extraordinary insults and aggressions of the Imperial German Government left us no self-respecting choice but to take up arms in defense of our rights as a free people and of our honor as a sovereign government.  The military masters of Germany denied us the right to be neutral.  They filled our unsuspecting communities with vicious spies and conspirators and sought to corrupt the opinion of our people in their own behalf.  When they found that they could not do that, their agents diligently spread sedition amongst us and sought to draw our own citizens from their allegiance. ... They sought by violence to destroy our industries and arrest our commerce.  They tried to incite Mexico to take up arms against us and draw Japan into a hostile alliance with her. ... They impudently denied us the use of the high seas, and repeatedly executed their threat that they would send to their death any of our people who ventured to approach the coasts of Europe. ... What great nation, in such circumstances, would not have taken up arms ?

Stripped of rhetoric, the “intolerable wrongs,” the “extraordinary insults and aggressions”—aside from those pertaining to the submarine issue—are reduced to the following terms :

1.  Spies in America.
2.  Pro-German propaganda.
3.  Bomb plots against munition works and ships supplying Germany’s enemies.
4.  Conspiracy to cause Mexico and Japan to become enemies of America.

If the maintenance of spies in a foreign country be a cause for war, then every neutral nation on earth has a cause for war against America;  since we maintain spies all over the world, and especially in the countries directly south of us.  Whether German spies may be termed vicious, or whether American spies may be termed vicious, depends, obviously, not upon their being spies, but upon their acts and purposes as such.

And what acts and purposes were alleged against the “vicious” German spies and conspirators ?  First, that they “sought to corrupt the opinion of our own people in their behalf !” A terrible crime, surely, inasmuch as Germany’s enemies were doing exactly the same thing in America, and as America proceeded to do exactly the same thing in every neutral country.

Everybody knows that Wilson’s Bureau of Information sent propagandists all over the world, and that all consular officers, Secret Service men, and government agents of all kinds abroad, engaged, more or less, in “corrupting the opinion” of the neutral peoples in our behalf—quite naturally.  When they found that they could not “corrupt the opinion of our people in their behalf,” what did they do, these vicious spies and conspirators ?  They “diligently spread sedition amongst us and sought to draw our own citizens from their allegiance.”

It sounds quite terrible.  But the President could not have been thinking of anything more heinous than the peaceful and lawful efforts of Germans within the United States to avert war with Germany;  for nothing more heinous than that occurred.  Everybody knows that there was no actual seditious uprising against the government for the purpose of forcing America to become a vassal of Germany, or any attempt at anything of the kind.

The President possibly had in mind the “Bernstorff peace plot.”  On January 22, 1917, Mr. Bernstorff, the German ambassador, wrote to his government asking for $50,000 to assist peace societies in the United States to spread propaganda intended to keep America out of war.  The Bernstorff letter, published the following September, was put out by the Administration as proof of a heinous German plot directed against the peace and security of the United States, and was so treated by the newspapers.  It happens that, on January 22, President Wilson’s own professed purposes were precisely those for which Bernstorff wanted his $50,000.  Wherefore, if the interpretation placed upon the Bernstorff letter is just, the President himself was implicated in a German plot directed against the peace and security of the United States !

Third, there were the bomb plots against munitions works and ships supplying Germany’s enemies.  But Wilson never brought the bomb plots diplomatically to the attention of the Kaiser, claiming them as offenses requiring reparation, with war as the alternative.  Wilson’s government did obtain some evidence of unneutral activities on the part of a number of acknowledged representatives of Germany and Austria.  But its manner of dealing with these cases proves that it did not consider that war was required as an answer to them.  Bomb plots and offenses of that sort were, in general, dealt with as crimes of individuals;  if the government had actual evidence of guilt, it sent the individual to prison, and that was the end of it.

In the cases of Ambassador Dumba, of Austria, and Captains Von Papen and Boy-Ed, German military and naval attachés, diplomatic representations were made.  Against Dumba it was alleged that he had “admitted that he had proposed to his government plans to instigate strikes in American manufacturing plants”;  Von Papen and Boy-Ed were accused of having connection “with the illegal and questionable acts of certain persons within the United States.”  America asked reparation in the recall of the of fending officials.  That reparation was given.  No further reparation of any kind was asked, and the incident was closed.  To bring such matters up again, and list them among our official war causes, is only additional evidence of the frantic extremities to which the President was driven in the effort to justify the war.

While German spies, German propaganda, and bomb plots were never officially suggested as a possible cause for war until the war message, what was known as the “German-Mexican plot” was brought forward during the debate on the Armed Ships Bill, and was adroitly used to manufacture belligerent sentiment, and to coerce Congress into permitting one of the unconstitutional steps by which the President achieved belligerency for America.  During the debate on the Armed Ships Bill, Senator Works of California charged that the Zimmermann letter had been produced to influence votes and secure the passage of the bill;  that it had been used to line up both Democrats and Republicans, and had lined them up;  that, although a half-dozen votes could not be mustered in the Senate for a declaration of war, the Senate was being persuaded, under cover of the excitement stirred up by the Zimmermann letter, “to do something that will lead us just as surely and certainly to war as if we had openly declared it.”  The newspaper reports of the day tell the same story.  The Washington dispatch to the New York Tribune on February 28, 1917, said :

It was a disheartening spectacle that was presented in Congress to-day before the news of the German-Mexican plot came.  In the Capitol, the pro-Germans and the pacifists were making all the noise and there seemed no possibility of a declaration of war by Congress.  There was not even a chance to vote upon the legislation conferring upon the President authority to arm merchant ships ... The coming of the news of the plot changed all this, and it seems now that real action will be taken almost by acclamation.

Although the Armed Ships Bill barely failed to pass, in spite of the Zimmermann letter, that missive greatly assisted in reaching the end for which it was employed.  Many Senators and Representatives who had not yet dared to go against the peace spirit of their constituencies, now dared to go against it.  President Wilson, his hand greatly strengthened, dared embark upon his misnamed policy of armed neutrality, even without express authority from Congress.  The path to war became far less thorny.

After we were at war, our propagandists continued passionately to ring the changes upon the horrible “German-Mexican plot.”  Said President Wilson in the message of December 4, 1917:  “Their [the Germans’] sinister and secret diplomacy has sought to take the very territory away from us, and disrupt the union of our States.”

What are the merits of the charge ?

Here is the famous Zimmermann letter in full, as the Wilson Administration gave it to the press :

BERLIN, January 19, 1917.

On the first of February, we intend to begin submarine warfare unrestricted.  In spite of this, it is our intention to keep neutral the United States of America.

If this attempt is not successful, we propose an alliance on the following basis with Mexico :  That we shall make war together and together make peace.  We shall give general financial support, and it is understood that Mexico is to reconquer the lost territory in New Mexico, Texas, and Arizona.  The details are left to you for settlement.

You are instructed to inform the President of Mexico of the above in the greatest confidence, as soon as it is certain that there will be an outbreak of war with the United States, and suggest that the President of Mexico, on his own initiative, should communicate with Japan suggesting adherence at once to this plan.  At the same time, offer to mediate between Germany and Japan.

Please call to the attention of the President of Mexico that the employment of ruthless submarine warfare now promises to compel England to make peace in a few months.

(Signed)
Zimmermann.

The letter is from the German Foreign Secretary at Berlin to the German ambassador at Mexico.  It is seen that the proposal of an alliance is conditional on the United States’ declaring war on Germany, and that the matter is not to be broached at all, unless it becomes “certain that there will be an outbreak of war with the United States” —a thing that the German government will try to avoid.

How did this precautionary measure of the German government differ from the efforts that governments habitually put forth to procure the assistance of as many other countries as possible on the eve of a serious conflict ?  How did it differ from the effort that the Entente governments habitually and frankly made from the beginning to draw in as large a fraction of the world as possible against their enemies ?  How did it differ from the efforts that President Wilson himself put forth to turn as many of the neutrals as possible against the Central Powers ?

Compare the Zimmermann letter with the message that President Wilson sent to all the neutral governments in the world, on severing diplomatic relations with Germany.  In that message, the President flatly requested all other neutrals to follow the example of America, and break relations with Germany.  While it is theoretically conceivable that America might have broken relations and kept out of war, it is not conceivable that such a course would have been possible for Holland, Switzerland, or any other neutral on the borders of Germany.  Practically, then, the President was asking these countries to go to war, although at the time, and for nearly two months afterwards, he was disclaiming any intention of going to war himself.

Moreover, while the German government merely requested Mexico to join her, in the event of war, we employed coercion in the effort to compel other nations to go in against the Central Powers.  By various means we induced China and some Latin American countries to join us.  The most flagrant example of such coercion, however, is found in our manner of applying the embargo to the European neutrals.

The domestic right of a country to prohibit exports of its products, either in peace or war, is unquestionable.  The international right or wrong of such a procedure depends upon its purpose and effects.

When a country at peace resorts to an embargo either to conserve its products for its own use, to maintain its neutrality, or to compel another country to respect its commercial or other prerogatives under international law, it is clearly within its rights.  When a country at war resorts to embargo to conserve its own products for its own use, it is clearly within its rights.

But when a country at war resorts to embargo in pursuance of a general policy of violation of the rights of neutral countries, and employs the embargo as a means to destroying neutral rights, to punishing neutrals for being neutral, and to bribing or coercing them into unneutrality—seeking to range them on its own side, whether they will or no—the offense can never be condoned.

No serious criticism can be made of the purposes acknowledged in President Wilson’s statement explaining the American embargo.  (July 8, 1917.) But the embargo was not limited to its acknowledged purposes.  At the very time that the President’s statement was issued, neutral ships in American ports were refused clearance, and conditions were laid down to neutrals requiring them to submit to and aid the blockade of Germany-the same blockade that America had characterized as “ineffective, illegal, and indefensible,” “a practical assertion of unlimited belligerent rights over neutral commerce,” “an almost unqualified denial of the sovereign rights of the nation whose ships, trade, or commerce, is interfered with.”

Not only that, but we proceeded to erect an illegal blockade upon the land, as well as upon the sea;  to compel the neutral nations to surrender their right to trade with our enemies by sea or land, and to compel them to trade with us instead, and on our own terms.

That the chief purpose of our embargo was to coerce unwilling neutrals into the war was admitted, behind closed doors, by the Administration itself.  On May 9, 1917, after what the newspapers described as a stormy secret session of the Senate, Senator Townsend insisted on debating the subject matter of the secret session in the open.  In the course of his remarks on the Senate floor, Senator Townsend said :

I am not willing to vote for the very German methods we have condemned.  I understand that this provision now before us is not to be used for the protection of American products, or to protect the American supply, but to coerce neutral countries.

We stood for neutrality, and urged the nations of the world to support neutrality.  Now that we are engaged in the war, we ought not to coerce other nations and force them to enter the struggle.  I can’t believe that a war of this sort would result in good to the world.  If this is the purpose of the United States, we have abandoned the high ideal we set as our reason for going to war.

I don’t want to seem antagonistic to the President or to the government in their prosecution of this war.  But it seems to me that this measure will intensify the war.  Even though I subject myself to criticism I cannot vote for something that is unjust.  I am not willing to force war upon those neutral countries—especially little countries—by methods we have condemned.  If there is a God in Heaven, whose aid we are invoking, we will hardly get His aid by these measures, which are unjust, unfair, and uncivilized.

Although we did not succeed in bringing the European neutrals formally into the war on our side, we did push them into a position of unneutrality, and forced them to support our illegal blockade.  We accomplished this through our control, in conjunction with our allies, of the available food supplies of the earth, and of the ships upon the seas.  We refused to allow any of the food under our control to go to the neutral countries in question, or any of the ships under our control to carry food to the neutral countries in question.  We refused to allow any of the coal under our control to bunker any ships whatever intending to carry food to the neutral countries in question.

But this was not enough.  We refused to allow these countries to use their own ships and their own coal to carry their own food to one another, or to themselves.  To insure the attainment of this purpose we held the merchant ships of these neutral countries in our ports.

Our terms specifically were, that these neutral countries lease the greater part of their merchant fleets to us for the period of the war, turn over their commerce to us and the control of their trade, submit to a system of rationing for themselves, formally surrender their right to trade with Germany in all commodities carried in our ships or theirs, and deliver their own surplus products to us, under terms and conditions which we laid down.

What President Wilson asked these neutral nations to “agree” to was the same thing in principle as, though more offensive in effect than, the thing which he himself had characterized as “an attitude of unneutrality toward the present enemies of Great Britain which would be obviously inconsistent with the solemn obligations of this government.”  It was on this ground that the European neutrals all refused, at first, to enter into any such “agreement.”

But we held the whip hand—we had their ships.  Our action compelled these neutrals to choose between four courses:  war on the side of the Entente;  war on the side of Germany;  national starvation;  or a perilous unneutrality favorable to the Entente and an offense against Germany.

At no time had either Germany or England so contemptuously ridden over the rights of America.  The “negotiations” continued for months.  Norway, Sweden, and Denmark surrendered only when face to face with starvation.  Holland held out, and its ships were confiscated without the formality of an “agreement.”  The neutrals yielded because they were intent on avoiding war at all costs.  They had suffered from Germany, but Germany had never demanded of them any such surrender of their neutral rights as did we.

America’s offenses against the neutral world come out in their most unlovely proportions only when it is remembered with what self-righteousness they were perpetrated.  Through our spokesman, President Wilson, we declared ourselves “the trustees of the moral judgements of the world,” proclaimed “our proud position even amidst the turmoil of war for the law and the right,” pledged our country to the golden rule in international affairs, asserting the “basis of honor” as “the treatment of others as we would be treated ourselves.”

For ourselves we declared that “the first and primary obligation is the maintenance of our own sovereignty.”  Yet we violated the sovereignty of others.  “The territory of a neutral power is inviolable,” said the second Hague convention.  We signed it, and we professed to go to war “to assert the principles of law in a world in which the principles of law have broken down.”

Yet we violated the territory of a neutral, Russia.  We proclaimed the international code:  “First, that every people has the right to choose the sovereignty under which they live.”  Yet we intervened in Russia, hoping to overthrow the constituted government and to replace it with one that would serve our interests better.

While killing Russians, we disclaimed intervention, disclaimed wrong, and spoke of aid.  “Any intervention in an internal struggle,” says Lawrence, “is an attempt to prevent the people of a state from settling their own affairs in their own way. ... It is an attack upon independence ... and consequently a gross violation of international law.”  (“Principles of International Law,” pp. 134-135.)

With our embargo we make Mexico feel the pinch of hunger;  our embargo is our right.  At the same time we let Mexico understand that we will permit no Mexican embargo on oil;  Mexico has no right to an embargo.

We confiscate the Dutch ships, asserting :  “By exercising in this crisis our admitted right to control all property within our territory we do no wrong to Holland.”  At the same time we threaten Mexico with intervention, asserting that certain taxes are “confiscatory.”

The other “intolerable wrongs” justify our war as inadequately as the wrongs of the submarine dispute.  As for American honor, instead of being maintained, it was debased exactly to the extent that principle was outraged, pledges were broken, and high professions proven a mockery.