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France and Germany separately if they intend to respect Belgian territory in the event of its not being violated by their adversary. Germany's reply is awaited. France has replied in the affirmative."

On August 4, 1914, the British Secretary for Foreign Affairs informed the British Ambassador at Berlin that:

The German Government have delivered to the Belgian Government a note proposing friendly neutrality entailing free passage through Belgian territory, and promising to maintain the independence and integrity of the kingdom and its possessions at the conclusion of peace, threatening in case of refusal to treat Belgium as an enemy. An answer was requested within twelve hours.

We also understand that Belgium has categorically refused this as a flagrant violation of the law of nations.

His Majesty's Government are bound to protest against this violation of a treaty to which Germany is a party in common with themselves, and must request an assurance that the demand made upon Belgium will not be proceeded with and that her neutrality will be respected by Germany. You should ask for an immediate reply.2

In compliance with this direction, the British Ambassador to Berlin "called," to quote his report, "upon the Secretary of State that afternoon and inquired, in the name of His Majesty's Government, whether the Imperial Government would refrain from violating Belgian neutrality. Herr von Jagow at once replied that he was very sorry to say that his answer must be 'No,' as, in consequence of the German troops having crossed the frontier that morning, Belgian neutrality had already been violated.'

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The break between the two Governments had come, for the British demand was an ultimatum and the failure to comply with it was war. Later in the day the British Ambassador waited upon the Chancellor, who had just returned from the Reichstag, where he had justified the invasion of Belgium on the plea of necessity. Of the interview the British Ambassador gives the following account:

I found the Chancellor very agitated. His Excellency at once began a harangue, which lasted for about twenty minutes. He said that the step taken by His Majesty's Government was terrible to a degree; just for a word-"neutrality," a word which in war time had so often been disregarded-just for a Diplomatic Documents Relating to the Outbreak of the European War, p. 368.

1

2 The British Blue Book (No. 1), doc. No. 153; ibid., pp. 1002-1003. Diplomatic Documents Relating to the Outbreak of the European War, doc. No. 160, p. 1006.

scrap of paper Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her.1

In vino veritas, and in moments of excitement the truth escapes. Yet this truth about Belgium was expressed ten days later, on a very solemn occasion, by Kaiser William himself in a letter in his own handwriting, delivered to the American Ambassador for transmission to the President of the United States, in which the King of Prussia and German Emperor, referring to his proposition to Sir Edward Grey to leave France alone if Great Britain forced it to remain neutral, said:

Instead he declared England had to defend Belgian neutrality, which had to be violated by Germany on strategical grounds, news having been received that Franee was already preparing to enter Belgium and the King of the Belgians having refused my petition for a free passage under guarantee of his country's freedom.2

Ernst Moritz Arndt, the poet of the War of Liberation and of German unity, and the protagonist of Pan-Germanism, foresaw and predicted the future with a ruthless and brutal frankness that makes the blood curdle of those who really believe that little states and little peoples should have some little place in the sun. In 1834, after Belgium had broken away from Holland, but before its independence was definitely recognized and its international position as a neutralized state fixed under the guarantee of the German-speaking peoples, Arndt wrote:

Belgium, the granary and armory, is predestined to be the battlefield in the struggle for the Meuse and the Rhine. I ask any General or Statesman who has seriously considered the problems of war and politics, whether Belgium can remain neutral in a European war-that is to say, can be respected as neutral any longer than may appear expedient to the Power which feels itself possessed of the best advantages for attack.'

This question Arndt's countrymen have answered, for did not Bismarck say, in the course of negotiations with Italy in 1887, that

1 Diplomatic Documents Relating to the Outbreak of the European War, doc. No. 160, p. 1007.

2 United States Official Bulletin Issued by the Committee on Public Informa tion, August 14, 1917, p. 4.

Arndt, Schriften für und an seine lieben Deutschen (Leipzig, 1845), vol. 3, p. 178.

a treaty is "a scrap of paper," or, more euphemistically but not less certainly expressed in his autobiography, that "International policy is a fluid element which, under certain conditions, will solidify, but, on a change of atmosphere, reverts to its original diffuse condition." 2

But to return to Arndt. Knowing the England of his day and divining the Germany of the future, he instinctively felt that the island kingdom stood in the way of a greater Germany. Therefore, whether in the teeth of a treaty or not, England and Germany were to meet in the Low Countries:

On the fields of Belgium Germany and England will of necessity be everlastingly at war for the possession of the Rhine and the supremacy of the Channel.'

The plea of necessity, discarded by the Kriegsbrauch im Landkriege, proclaimed by the Chancellor in terms which Arndt would have approved, has had its day in courts of municipal law and has been found wanting; and we have with our own eyes seen, as through a glass darkly, the consequences which would follow if the plea of necessity, banished from private law, should find a refuge in the public law between nations.

In the case of Regina v. Dudley, decided by an English court of justice in 1884, some shipwrecked sailors, "subject to terrible temptation and to sufferings which might break down the bodily power of the strongest man and try the conscience of the best," to quote the language of the case, "put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed." They were later picked up by a

1

During the last days of March (1887), when a dispatch announced that Mr. Depretis was in conference with Messrs. Crispi and Zanardelli, in order to persuade them to enter into the ministry, Count Herbert von Bismarck told Count de Launay that "his father was amazed when he realized that a reconstruction of the cabinet was being effected in the interest of the radical Left." According to the judgment of the German Chancellor, this was a step toward a Republic! When the news reached Berlin that Mr. Depretis, president of the Council, assumed at the same time the portfolio of Foreign Affairs, Prince Bismarck was profoundly disturbed. The German Ambassador at Rome, and the Italian Ambassador at Berlin, tried in their dispatches, but in vain, to convince him that the successor to Count de Robilant would conform faithfully to the Treaty: "Treaties," answered the Prince, are scraps of paper (sic). All depends upon the manner of turning them to account. Even an excellent weapon, in inexperienced hands, may cause more damage than good." (Chiala, Pagine di storia contemporanea, 1897, t. 3, pp. 497-498.)

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2 Bismarck, Gedanken und Erinnerungen, pp. 596-597.

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Arndt, Schriften für und an seine lieben Deutschen, vol. 3, p. 164.

passing vessel, brought to England, indicted for the murder of the boy, and convicted, and the conviction was affirmed on appeal. In delivering the unanimous opinion of the Court sentencing the prisoners convicted of murder, Lord Chief Justice Coleridge entered into a very careful and elaborate examination of the only plea advanced in behalf of the prisoners:

Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognized excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defense of it.1

After rejecting the plea of necessity, Lord Chief Justice Coleridge thus points out the consequences of the admission of the plea of necessity:

It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer must be, No.

"So spake the Fiend; and with necessity,

The tyrant's plea, excused his devilish deeds." 1

115 Cox Criminal Cases, 624, 14 Queens Bench 273; Beale, Selection of Cases on Criminal Law (Cambridge, Mass., 1894), pp. 362-363.

CHAPTER XI

BELLIGERENT USE OF NEUTRAL FLAG

The German correspondence bristles with denunciation of the use of false flags. Just when false flags were used in the present war it would be hard to say. The misuse of the neutral flag became the subject of discussion because of the use of the American flag by the steamer Lusitania in an inward or outward passage, or both, to protect itself, in so far as the flag was a means of protection, against the German submarine. The Imperial German Government called this incident to the attention of the United States in support of the charge that the British Government had directed its merchant marine to use neutral flags in order to disguise its merchantmen from the submarine. It would seem, however, that the flag was of no great importance, inasmuch as commanders of the German submarines, acting under instructions to refrain from attacking neutral vessels, were apparently unable to distinguish the flag until the fatal shot had been fired.

But, however small and insignificant the flag may appear to the commander, it looms large in the correspondence. It may be premised, before looking into the matter, that the flag which a vessel flies is not the proof of its nationality, for behind the flag is the right to fly it, and not even the right to fly it settles the question of nationality. The flag may be a rule of thumb, but the practice of Nations prescribes visit and search of the vessel to determine its character irrespective of the flag which the vessel claims the right to fly. The correct doctrine, it is believed, was thus stated by Secretary of State Cass, writing in 1860 to the American Minister to England:

In the despatch of Lord John Russell, I perceive he refers to the American flag as if it were contended that that national ensign afforded protection to the vessel bearing it. I beg you to assure his lordship that this country advances no such pretension. The immunity of a vessel upon the ocean depends upon her national character, to be ascertained, if contested, by her papers, and, if need be, by other circumstances, but not by the flag under which she sails. If a foreign cruiser boards a vessel with American colors, and she proves not to belong to this coun

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