World's War Events Volume I Part 32

[Sidenote: More than one submarine in wait.]

As to the second answer, it is only necessary to outline the situation in order to realize how speculative is the a.s.sertion of fault. It is plain from the radio messages of the Admiralty, (May 6, 7:50 P. M., "Submarines active off south coast of Ireland"; May 6, 8:30 P. M., "Submarines off Fastnet"; the 11:25 message of May 7, supra; May 7, 11:40 A. M., "Submarines five miles south of Cape Clear, proceeding west when sighted at 10 A. M.,") that more than one submarine was lying in wait for the _Lusitania_.

[Sidenote: Submarines bold with unarmed vessels.]

A scientific education is not necessary to appreciate that it is much more difficult for a submarine successfully to hit a naval vessel than an unarmed merchant s.h.i.+p. The destination of a naval vessel is usually not known, that of the _Lusitania_ was. A submarine commander, when attacking an armed vessel, knows that he, as the attacker, may and likely will also be attacked by his armed opponent. The _Lusitania_ was as helpless in that regard as a peaceful citizen suddenly set upon by murderous a.s.sailants. There are other advantages of the naval vessel over the merchant s.h.i.+p which need not be referred to.

[Sidenote: Probably two submarines.]

It must be a.s.sumed that the German submarine commanders realized the obvious disadvantages which necessarily attached to the _Lusitania_, and, if she had evaded one submarine, who can say what might have happened five minutes later? If there was, in fact, a third torpedo fired at the _Lusitania's_ port side, then that incident would strongly suggest that, in the immediate vicinity of the s.h.i.+p, there were at least two submarines.

It must be remembered also that the _Lusitania_ was still in the open sea, considerably distant from the places of theretofore submarine activity and comfortably well off the Old Head of Kinsale, from which point it was about 140 miles to the Scilly Islands, and that she was nearly 100 miles from the entrance to St. George's Channel, the first channel she would enter on her way to Liverpool.

[Sidenote: Attack intended to destroy life.]

No transatlantic pa.s.senger liner, and certainly none carrying American citizens, had been torpedoed up to that time. The submarines, therefore, could lay their plans with facility to destroy the vessel somewhere on the way from Fastnet to Liverpool, knowing full well the easy prey which would be afforded by an unarmed, unconvoyed, well-known merchantman, which from every standpoint of international law had the right to expect a warning before its peaceful pa.s.sengers were sent to their death. That the attack was deliberate and long contemplated and intended ruthlessly to destroy human life, as well as property, can no longer be open to doubt. And when a foe employs such tactics it is idle and purely speculative to say that the action of the Captain of a merchant s.h.i.+p, in doing or not doing something or in taking one course and not another, was a contributing cause of disaster or that had the Captain not done what he did or had he done something else, then that the s.h.i.+p and her pa.s.sengers would have evaded their a.s.sa.s.sins.

[Sidenote: The Captain and company not negligent.]

I find, therefore, as a fact, that the Captain and, hence, the Cunard Company were not negligent.

The importance of the cause, however, justifies the statement of another ground which effectually disposes of any question of liability.

It is an elementary principle of law that even if a person is negligent recovery cannot be had unless the negligence is the proximate cause of the loss or damage.

There is another rule, settled by ample authority, viz.: that, even if negligence is shown, it cannot be the proximate cause of the loss or damage if an independent illegal act or a third party intervenes to cause the loss.

The question, then, is whether the act of the German submarine commander was an illegal act.

[Sidenote: International law.]

The United States courts recognize the binding force of international law.

At least since as early as June 5, 1793, in the letter of Mr. Jefferson, Secretary of State, to the French Minister, our Government has recognized the law of nations as an "integral part" of the laws of the land.

To ascertain international law, "resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of commentators and jurists. * * * Such works are resorted to by judicial tribunals * * * for trustworthy evidence of what the law really is."

Let us first see the position of our Government, and then ascertain whether that position has authoritative support. Mr. Lansing, in his official communication to the German Government dated June 9, 1915, stated:

[Sidenote: Mr. Lansing's communication.]

[Sidenote: Responsibility of the German Government.]

[Sidenote: A principle of humanity.]

"But the sinking of pa.s.senger s.h.i.+ps involves principles of humanity which throw into the background any special circ.u.mstances of detail that may be thought to affect the cases, principles which lift it, as the Imperial German Government will no doubt be quick to recognize and acknowledge, out of the cla.s.s of ordinary subjects of diplomatic discussion or of international controversy. Whatever be the other facts regarding the _Lusitania_, the princ.i.p.al fact is that a great steamer, primarily and chiefly a conveyance for pa.s.sengers, and carrying more than a thousand souls who had no part or lot in the conduct of the war, was torpedoed and sunk without so much as a challenge or a warning, and that men, women, and children were sent to their death in circ.u.mstances unparalleled in modern warfare. The fact that more than one hundred American citizens were among those who perished made it the duty of the Government of the United States to speak of these things and once more with solemn emphasis to call the attention of the Imperial German Government to the grave responsibility which the Government of the United States conceives that it has incurred in this tragic occurrence, and to the indisputable principle upon which that responsibility rests.

The Government of the United States is contending for something much greater than mere rights of property or privileges of commerce. It is contending for nothing less high and sacred than the rights of humanity, which every Government honors itself in respecting and which no Government is justified in resigning on behalf of those under its care and authority. Only her actual resistance to capture or refusal to stop when ordered to do so for the purpose of visit could have afforded the commander of the submarine any justification for so much as putting the lives of those on board the s.h.i.+p in jeopardy. This principle the Government of the United States understands the explicit instructions issued on August 3, 1914, by the Imperial German Admiralty to its commanders at sea to have recognized and embodied as do the naval codes of all other nations, and upon it every traveler and seaman had a right to depend. It is upon this principle of humanity, as well as upon the law founded upon this principle, that the United States must stand. * * *

[Sidenote: Americans must be safeguarded.]

"The Government of the United States cannot admit that the proclamation of a war zone from which neutral s.h.i.+ps have been warned to keep away may be made to operate as in any degree an abbreviation of the rights either of American s.h.i.+pmasters or of American citizens bound on lawful errands as pa.s.sengers on merchant s.h.i.+ps of belligerent nationality. It does not understand the Imperial German Government to question those rights. It understands it, also, to accept as established beyond question the principle that the lives of non-combatants cannot lawfully or rightfully be put in jeopardy by the capture or destruction of an unresisting merchantman, and to recognize the obligation to take sufficient precaution to ascertain whether a suspected merchantman is in fact of belligerent nationality or is in fact carrying contraband of war under a neutral flag. The Government of the United States therefore deems it reasonable to expect that the Imperial German Government will adopt the measures necessary to put these principles into practice in respect of the safeguarding of American lives and American s.h.i.+ps, and asks for a.s.surances that this will be done. (See White Book of Department of State ent.i.tled 'Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties, European War, No. 2,' at p. 172.

Printed and distributed October 21, 1915.)"

The German Government found itself compelled ultimately to recognize the principles insisted upon by the Government of the United States, for, after considerable correspondence, and on May 4, 1916, (after the _Suss.e.x_ had been sunk,) the German Government stated:

[Sidenote: The _Suss.e.x_ agreement.]

"The German submarine forces have had in fact, orders to conduct submarine warfare in accordance with the general principles of visit and search and destruction of merchant vessels as recognized by international law, the sole exception being the conduct of warfare against the enemy trade carried on enemy freight s.h.i.+ps that are encountered in the war zone surrounding Great Britain. * * *

[Sidenote: Merchant s.h.i.+ps not to be sunk without warning.]

"The German Government, guided by this idea, 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 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 s.h.i.+ps attempt to escape or offer resistance. See Official Communication by German Foreign Office to Amba.s.sador Gerard, May 4, 1916. (White Book No. 3 of Department of State, pp. 302, 305.)"

[Sidenote: Right to make a prize.]

There is, of course, no doubt as to the right to make prize of an enemy s.h.i.+p on the high seas, and, under certain conditions, to destroy her, and equally no doubt of the obligation to safeguard the lives of all persons aboard, whether pa.s.sengers or crew.

Two quotations from a long list of authorities may be given for convenience, one stating the rule and the other the att.i.tude which obtains among civilized Governments. Oppenheim sets forth as among violations of the rules of war:

"(12) Attack on enemy merchantmen without previous request to submit to visit."

The observation in Vattel's "Law of Nations" is peculiarly applicable to the case of the _Lusitania_:

"Let us never forget that our enemies are men. Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind.

Thus shall we courageously defend our country's rights without violating those of human nature. Let our valor preserve itself from every stain of cruelty and the l.u.s.tre of victory will not be tarnished by inhuman and brutal actions."

[Sidenote: Codes and rules of nations.]

In addition to these authorities are the regulations and practices of various Governments. In 1512 Henry VIII. issued instructions to the Admiral of the Fleet which accord with our understanding of modern international law. Such has been England's course since.

Substantially the same rules were followed in the Russian and j.a.panese regulations, and probably in the codes or rules of many other nations.

The rules recognized and practiced by the United States, among other things, provide:

"(10) In the case of an enemy merchantman it may be sunk, but only if it is impossible to take it into port, and provided always that the persons on board are put in a place of safety. (U. S. White Book, European War, No. 3, p. 192.)"

[Sidenote: Humane principles in American wars.]

These humane principles were practiced both in the war of 1812 and during our own war of 1861-65. Even with all the bitterness (now happily ended and forgotten) and all the difficulties of having no port to which to send a prize, Captain Semmes of the _Alabama_ strictly observed the rule as to human life, even going so far as to release s.h.i.+ps because he could not care for the pa.s.sengers. But we are not confined to American and English precedents and practices.

While acting contrary to its official statements, yet the Imperial German Government recognized the same rule as the United States, and prior to the sinking of the _Lusitania_ had not announced any other rule. The war zone proclamation of February 4, 1915, contained no warning that the accepted rule of civilized naval warfare would be discarded by the German Government.

Indeed, after the _Lusitania_ was sunk, the German Government did not make any such claim, but in answer to the first American note in reference to the _Lusitania_ the German Foreign Office, per von Jagow, addressed to Amba.s.sador Gerard a note dated May 18, 1915, in which, inter alia, it is stated in connection with the sinking of the British steamer _Falaba_:

[Sidenote: The _Falaba_ case.]

"In the case of the sinking of the English steamer _Falaba_, the commander of the German submarine had the intention of allowing pa.s.sengers and crew ample opportunity to save themselves. It was not until the Captain disregarded the order to lay to and took to flight, sending up rocket signals for help, that the German commander ordered the crew and pa.s.sengers by signals and megaphone to leave the s.h.i.+p within ten minutes. As a matter of fact, he allowed them twenty-three minutes, and did not fire the torpedo until suspicious steamers were hurrying to the aid of the _Falaba_. (White Book No. 2, U. S. Department of State, p. 169.)"