it to a just regard for its own rights to say to the Imperial Government that that time has come. It has become painfully evident to it that the position which it took at the very outset is inevitable, namely, the use of submarines for the destruction of an enemy's commerce, is, of necessity, because of the very character of the vessels employed and the very methods of attack which their employment of course involves, utterly incompatible with the principles of humanity, the long-established and incontrovertible rights of neutrals, and the sacred immunities of noncombatants."'1 And Secretary Lansing, still speaking for the United States "in behalf of humanity and the rights of neutral nations," solemnly stated that "unless the Imperial Government should now immediately declare and effect an abandonment of its present methods of submarine warfare against passenger and freight-carrying vessels, the Government of the United States can have no choice but to sever diplomatic relations with the German Empire altogether."'

On May 4, 1916,2 the Imperial German Secretary of State for Foreign Affairs handed the American Ambassador a formal reply and assurance, and, recognizing the gravity of the case and the possibility of misunderstanding of its terms and a misconception of the purposes of the German Government, the text of the reply was in English as well as German.

At the very outset of his note the Imperial Secretary emphatically repudiates Secretary Lansing's assertion "that this incident is to be considered as one instance for the deliberate method of indiscriminate destruction of vessels of all sorts, nationalities, and destinations by German submarine commanders." He stated again that commanders of German submarines had been ordered "to conduct submarine warfare in accordance with the general principles of visit and search and destruction of merchant vessels as recognized by international law." He admitted, however, that the Imperial Government had made an exception, which he was bold enough to call the "sole exception," in the case of "enemy trade carried on enemy freight ships that are encountered in the war zone surrounding Great Britain," and that "with regard to these no assurances have ever been given to the Government of the United States." He stated that "the German Government cannot admit any doubt that these orders have been given and are executed in good faith," although he conceded that "errors have actually occurred"; and 1 Official text, American Journal of International Law, Special Supplement, October, 1916, p. 190.

2 Ibid., pp. 195-199.

he asserted once again, and in what would seem to be unmistakable terms, as the German Government has repeatedly declared, that "it cannot dispense with the use of the submarine weapon in the conduct of warfare against enemy trade."

A considerable portion of the note is taken up with the denunciation of Great Britain, which, according to the Imperial German Secretary, "ignoring all the accepted rules of international law, has extended this terrible war to the lives and property of noncombatants, having no regard whatever for the interests and rights of the neutrals and noncombatants that through this method of warfare have been severely injured," and that "in self-defense against the illegal conduct of British warfare, while fighting a bitter struggle for her national existence, Germany had to resort to the hard but effective weapon of submarine warfare." 1

Again, the claim is advanced that Germany is resolved "to use the submarine weapon in strict conformity with the rules of international law as recognized before the outbreak of the war, if Great Britain were likewise ready to adapt her conduct of warfare to these rules," thus again admitting the unlawful conduct of the submarine and again justifying its use by what it denounced as the unlawful conduct of Great Britain. After mentioning that the United States has failed in its attempts to cause Great Britain to adhere to international law and stating that "the German people knows that the Government of the United States has the power to confine this war to the armed forces of the belligerent countries in the interest of humanity,” the Imperial Secretary insists in language which may be quoted, but upon which it is very difficult to comment, that "the German people is under the impression that the Government of the United States, while demanding that Germany, struggling for her existence, shall restrain the use of an effective weapon, and while making the compliance with these demands a condition for the maintenance of relations with Germany, confines itself to protests against the illegal methods adopted by Germany's enemies." However, the German Government, wishing to preserve peace between the two nations and "to confine the operations of war for the rest of its duration to the fighting forces of the belligerents" and to insure "the freedom. of the seas," notifies the Government of the United States that the German naval forces have received the following orders: "In accordance with the general principles of visit and search and destruction

1 Official text, American Journal of International Law, Special Supplement, October, 1916, p. 197.

of merchant vessels recognized by international law, such vessels, both within and without the area declared as naval war zone, shall not be sunk without warning and without saving human lives, unless these ships attempt to escape or offer resistance."''

This the Imperial Secretary regarded as a concession, and apparently he wished it to be considered as such, because, in the paragraph of his note immediately following it, he says:

But neutrals cannot expect that Germany, forced to fight for her existence, shall, for the sake of neutral interest, restrict the use of an effective weapon if her enemy is permitted to continue to apply at will methods of warfare violating the rules of international law. Such a demand would be incompatible with the character of neutrality, and the German Government is convinced that the Government of the United States does not think of making such a demand, knowing that the Government of the United States has repeatedly declared that it is determined to restore the principle of the freedom of the seas, from whatever quarter it is violated.2

Finally, the German Secretary stated that "should the 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."

Instead of commenting upon the contentions of the German Government contained in this note, it will perhaps be best to quote, likewise without comment, Secretary Lansing's note in reply, dated May 8, 1916, indicating the agreement which was supposed to have been reached between the two Governments:

The note of the Imperial German Government under date of May 4, 1916, has received careful consideration by the Government of the United States. It is especially noted, as indicating the purpose of the Imperial Government as to the future, that it is prepared to do its utmost to confine the operations of the war for the rest of its duration to the fighting forces of the belligerents," and that it is determined to impose upon all its commanders at sea the limitations of the recognized rules of international law upon which the Government of the United States has insisted. Throughout the months which have elapsed since the Imperial Government announced, on February 4, 1915, its submarine policy, now happily abandoned, the Government of the United States has been constantly guided and restrained by Official text, American Journal of International Law, Special Supplement, October, 1916, p. 198. Ibid., pp. 199-200.

2 Ibid., pp. 198-199.

'Ibid., p. 199.

motives of friendship in its patient efforts to bring to an amicable settlement the critical questions arising from that policy. Accepting the Imperial Government's declaration of its abandonment of the policy which has so seriously menaced the good relations between the two countries, the Government of the United States will rely upon a scrupulous execution henceforth of the now altered policy of the Imperial Government, such as will remove the principal danger to an interruption of the good relations existing between the United States and Germany.

The Government of the United States feels it necessary to state that it takes it for granted that the Imperial German Government does not intend to imply that the maintenance of its newly announced policy is in any way contingent upon the course or result of diplomatic negotiations between the Government of the United States and any other belligerent Government, notwithstanding the fact that certain passages in the Imperial Government's note of the 4th instant might appear to be susceptible of that construction. In order, however, to avoid any possible misunderstanding, the Government of the United States notifies the Imperial Government that it cannot for a moment entertain, much less discuss, a suggestion that respect by German naval authorities for the rights of citizens of the United States upon the high seas should in any way or in the slightest degree be made contingent upon the conduct of any other Government affecting the rights of neutrals and noncombatants. Responsibility in such matters is single, not joint; absolute, not relative.1

To this note and to Secretary Lansing's statement that the United States did not accept the concession of the German Government conditioned upon the success of any negotiations with Great Britain, no reply has ever been received.2

1 Official text, American Journal of International Law, Special Supplement, October, 1916, pp. 199-200.

2 See statement to this effect in Secretary Lansing's note of February 3, 1917, to the German Ambassador, handing him his passports. MSS. Department of State.

CHAPTER X

REPRISALS, RETALIATION, NECESSITY

SECTION 1. REPRISALS

Even a casual consideration of the correspondence between the Imperial German Government and the United States and the British Government and the United States will have shown each belligerent justifying a certain line of conduct because of an illegal act of the enemy which must be met and overcome. If the enemy committed the act as alleged, then necessity, vital interests, or self-defense required the belligerent-Germany, Great Britain, or France-to resort to appropriate measures in order to counteract it.

Let us take, by way of illustration, the matter of mines. Germany scattered mines, according to its notice to neutrals, on August 7, 1914. Great Britain alleged that Germany was using mines improperly; this Germany denied. Great Britain alleged that Germany was scattering mines indiscriminately and improperly, using neutral vessels for this purpose; this Germany denied. Great Britain intimated that if Germany continued its unlawful use of mines, Great Britain might be obliged to resort to like measures, and in due course of time mines were scattered by Great Britain in the North Sea, which was declared a military area. Germany denounced this action on the part of Great Britain and declared the British Isles to be a war zone, with the result that, each alleging the misconduct of the other as justification for its various measures, the neutral was ground as it were between the upper and the nether millstone.

After giving the reasons for a law of the sea and stating the modest results accomplished in the direction of law, the President said in his address of April 2, 1917, to the Congress:

This minimum of right the German Government has swept aside under the plea of retaliation and necessity and because it had no weapons which it could use at sea except these which it is impossible to employ as it is employing them without throwing to the winds all scruples of humanity or of respect for the understandings that were supposed to underlie the intercourse of