The Ambassador was requested by the Department of State to substantiate his charges in so far as the United States was concerned, a request with which he did not comply. The firms implicated were asked by the Department to explain their conduct, which they did, with the result that, instead of 8,000,000 cartridges manufactured and sold by the Union Metallic Cartridge Company, a little over 117,000 were manufactured, and 109,000 sold. This company stated that they were manufactured for sporting purposes and that the cartridges could not be used in the military rifles of any foreign Power; that, from the detailed list of persons to whom the cartridges were sold, some 960 cartridges went to British North America and some 100 to British East Africa. In regard to the orders, the reply from the Winchester Repeating Arms Company was equally categorical, assuring the Department of State, in reply to a request for information, that it had not received an order for such guns or cartridges or for the sale of such material from or to the British Government or from any other Government engaged in the war. This information was communicated to the German Ambassador with a statement that, if he could furnish evidence that American firms were manufacturing and selling to the belligerents, to be used in the war, cartridges in violation of The Hague Conventions, the President would, as Secretary Bryan's note stated, "use his influence to prevent, so far as possible, sales of such ammunition to the Powers engaged in the European War without regard to whether it is the duty of this Government, upon legal or conventional grounds, to take such action." Notwithstanding the fact that the substance of the Ambassador's note had been given to the press, Secretary Bryan was able to conclude this part of his reply with the statement that "The Department has received no other complaints of alleged sales of dumdum bullets by American citizens to belligerent Governments." So much for the fact; now as to the law. A careful examination fails to identify the Geneva Convention or any provision thereof which, as the Imperial German Ambassador states, was violated by the use of dumdum bullets. The bullets referred to as soft-nosed cartridges, dumdum cartridges, and mushroom bullets, are of one general character, and can be generally described as expanding bullets, to use a conventional expression. In 1899 a declaration in the following language was adopted by the First Hague Peace Conference: 'Letter of the Secretary of State to the Chairman of the Senate Committee on Foreign Relations, January 20, 1915; Senate doc. No. 716, 63d Cong., 3d sess.; official text, American Journal of International Law, Special Supplement, July, 1915, p. 261. The contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. Portugal, Great Britain, and the United States did not sign this declaration, although, in the course of the Second Hague Peace Conference, Portugal adhered to it on August 29th and Great Britain on August 30, 1907.1 The United States has not adhered, not because it was opposed to the principle, but because it then believed and still believes that the language was too specific, forbidding the use of this kind of a bullet, whereas the language should have been general, forbidding the use of any kind of a bullet producing unnecessary suffering. The United States, therefore, not having signed, ratified, or adhered to the declaration, is not bound by its terms, and as a matter of law, the German Ambassador would have had no ground to complain even if the fact had been as he alleged. Finally, the German Ambassador refers to Article 23e of The Hague Conventions of 1899 and 1907 respecting the laws and customs of war on land. The text of the land warfare convention of 1899 has been ratified by all the belligerents; the revised text of 1907 has been signed but not ratified by Bulgaria, Italy, Montenegro, Servia, and Turkey; but as this particular article is the same in each Convention it may be considered for present purposes as accepted without reservation by all of the belligerents. The United States is also a signatory and a ratifying Power. Article 23 reads: Besides the prohibitions provided by special Conventions, it is especially prohibited— . (e) To employ arms, projectiles, or material of a nature to cause superfluous injury. The question arises whether this prohibition is in substance, though not in form, the same as the prohibition contained in the declaration. Without arguing the matter, it would appear that it is not the same because the American delegation would have excluded it from the ratification of the original and the revised convention, as the United States bitterly opposed the declaration in 1899 and renewed its opposition in 1907. But this does not settle the matter, 1 The Hague Conventions and Declarations of 1899 and 1907, pp. 231, 232. because, if the cartridges referred to by the German Ambassador as dumdum bullets cause superfluous injury, to quote the language of Article 23e, it follows that the United States should prohibit the manufacture, the sale, and the exportation of such bullets to belligerents and that, if it did not do so, it would render itself liable under the Convention. In the absence of further protest on the part of the German Ambassador, whose record during the war was largely one of protest, it is to be presumed that the elements were lacking to render protest in this matter effective; otherwise, he would not have dropped it. SECTION 2. HOVERING OF BRITISH WARSHIPS OFF AMERICAN PORTS The question involved in this heading is one of peculiar difficulty, because the undoubted exercise of the right to navigate freely the high seas permits a belligerent vessel to approach the line separating the high seas from the territorial waters of a neutral country, and while it may not legally commit a hostile action or exercise any act of sovereignty within the territorial waters of another country, it may nevertheless lawfully exercise all the rights of sovereignty upon the high seas. Legally it may exercise these rights just beyond the three-mile line; equitably, it should not. Within the three-mile limit the neutral is protected by international law; beyond the three-mile limit it can only appeal to comity. The situation is not unlike that of a country mobilizing its troops in the immediate vicinity of the line separating it from its neighbor. Legally this is proper; as a matter of fact it is regarded as highly inconvenient, and we know from the experience of this war, as pointed out in the correspondence dealing with this question, that mobilization within the territory of one of the belligerents was regarded by another of the belligerents as such an unfriendly act, indeed a menace, as to cause this latter country to declare a state of war against that country mobilizing its troops within its own territory but dangerously near its neighbor's frontier. Thus, Secretary Lansing said, in his note of April 26, 1916, to the British Ambassador in regard to this very matter: Further reasons, if necessary, may be adduced to oppose the British practice. In time of peace the mobilization of an army, particularly if near the frontier, has often been regarded as a ground for serious offense and been made the subject of protest by the Government of a neighboring country. In the present war it has been the ground for a declaration of war and the beginning of hostilities. Upon the same principle the constant and menacing presence of cruisers on the high seas near the ports of a neutral country may be regarded according to the canons of international courtesy as a just ground for offense, although it may be strictly legal.1 In approaching this question it may be said that the President's proclamation of neutrality in the war between Germany and Great Britain, issued on the 6th of August, 1914, warned the belligerents "that any frequenting and use of the waters within the territorial jurisdiction of the United States by the armed vessels of a belligerent, whether public ships or privateers, for the purpose of preparing for hostile operations, or as posts of observation upon the ships of war or privateers or merchant vessels of a belligerent lying within or being about to enter the jurisdiction of the United States, must be regarded as unfriendly and offensive, and in violation of that neutrality which it is the determination of this Government to ob This clause is to be found in all the proclamations of neutrality issued by the President of the United States during the present war, and is likewise to be found in the proclamation issued by President Grant on the 22d day of August, 1870, in the war between France and the North German Confederation and its allies. The present proclamation, therefore, followed precedent which had stood the test of the previous war to which Prussia was a party. But the policy of the United States in this regard is much older and dates from the very early days of the Republic. Thus Mr. Madison, Secretary of State, writing under date of February 3, 1807, to Messrs. Monroe and Pinkney, who were then in London endeavoring to negotiate a treaty with Great Britain, used the following language: In no case is the temptation or the facility greater to ships of war for annoying our commerce, than in their hovering on our coasts and about our harbors; nor is the national sensibility in any case more justly or more highly excited than by such insults.3 And in a later note to Messrs. Monroe and Pinkney, dated May 20, 1807, Secretary Madison said in reference to the same matter: It is much regretted that a provision could not be obtained against the practice of British cruisers, in hovering and taking 1 Official text, American Journal of International Law, Special Supplement, October, 1916, p. 385. 2 Ibid., July, 1915, p. 196. 3 American State Papers, Foreign Relations, vol. 3, p. 155. stations for the purpose of surprising the trade going in and out of our harbors; a practice which the British Government felt to be so injurious to the dignity and rights of that Nation, at periods when it was neutral.1 But in this as in many other matters, the views of Nations vary as they are belligerent or neutral. Great Britain objected to the practice when it was neutral, it followed the practice when belligerent; and during the present war it has sought to justify this practice to which the United States has strenuously objected, although the United States when belligerent followed the practice in the Civil War which Mr. Madison condemned and which Secretary Lansing has likewise condemned during that part of the present war in which. we were neutral. Nevertheless, the practice is offensive, and although the conduct of American cruisers during the Civil War was subject to criticism, as was properly pointed out by Great Britain in its replies to Secretary Lansing's protest, Mr. Lansing was justified in calling the subject to the attention of the British Government and requesting that the practice should cease. It is possible, indeed, to distinguish the cases, as pointed out by Secretary Lansing, inasmuch as the instances to which Great Britain referred took place in waters adjacent to the United States, in which the war was actively prosecuted, whereas in the present war British men-of-war hovering off our coasts have, as it were, brought the war to our very doors, from which we were then separated by the waters of the ocean. Within the first month of the war Mr. Lansing, then Counselor, called the attention of the British Government to the fact that the presence of British cruisers in near proximity to the harbor of New York, where the commerce of that port converges, caused a very bad impression, and that the continuance of this policy might be construed as an unfriendly act requiring official action. In the last days of the year Mr. Lansing further stated that two British men-ofwar lay habitually from three to six miles southeast of Ambrose Channel Light. Mr. Lansing, however, paraphrasing the language of his previous note, felt justified in warning the British Ambassador of the fact that, in the past, the Government had taken a very strong stand against the hovering of foreign warships in the vicinity of our great ports, and that the continuance of the practice would assuredly require action on the part of the Government. The matter came to an issue in the case of The Vinland, a Danish vessel proceeding in ballast from New York to Norfolk in the month 'American State Papers, Foreign Relations, vol. 3, p. 170. |