ment, the price at the place of delivery, however large it might be, was to be accepted by the parties and paid by the belligerent availing itself of the right to possess itself of the articles.

But this was not all. It was further foreseen that detaining the articles for a considerable period of time might throw a loss upon the neutral owner without a corresponding advantage to the belligerent, whose purpose was to prevent delivery to the enemy. Therefore the treaty contains a provision calculated to prevent the difficulties that were sure to arise unless the neutral party were permitted, by delivery to the belligerent, to escape the consequences of unlimited detention on the part of a belligerent. This provision runs as follows:

But in the case supposed, of a vessel stopped for articles heretofore deemed contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.

It would seem to need no legal subtlety to condemn the action of the Imperial German Government in stopping in the South Atlantic waters the American schooner Frye on a voyage to Great Britain, carrying articles which the Imperial Government declared to be contraband and, instead of allowing the master to deliver out the articles and to proceed upon his voyage without delay, to sink the vessel.

It was likewise foreseen that difficulties were likely to arise regarding the identity of each other's vessels in the matter of visit and search when one of the contracting parties was at war with another party. Therefore "to insure to the vessels of the two contracting parties the advantage of being readily and certainly known in time. of war," the two nations agreed by Article 14 that their vessels. should carry certain sea-letters and documents, to wit: a passport, charter party, and a list of the ship's company. The meaning of this provision would seem to be clear, that a vessel provided with these papers was to be considered as an American vessel and as such entitled to the protection of the treaty.

To prevent all disorder and violence in cases of visit and search Article 15 stipulated that:

When the vessel of the neutral party, sailing without convoy, shall be met by any vessel of war, public or private, of the other party, such vessel of war shall not approach within cannon

shot of the said neutral vessel, nor send more than two or three men in their boat on board the same to examine her sealetters or passports. And all persons belonging to any vessel of war, public or private, who shall molest or injure in any manner whatever, the people, the vessels, or effects of the other party, shall be responsible in their persons and property for damages and interest, sufficient security for which shall be given by all commanders of private armed vessels before they are commissioned.'

It is difficult to comment on the provisions of these articles without seeming to reflect upon the intelligence of the reader, as they either mean what they say or are a solemn mockery, unworthy of two great Nations. They mean and they were intended to mean that the belligerent had a right under international law and by the treaty to ascertain the character of the vessel claiming to be neutral, and, in so far as a vessel claiming to be American was concerned, the treaty provided the evidence to establish American character and the formalities of visit and search in order to ascertain the destination and nature of its cargo. It hardly needs to be called to the reader's attention that the action of German submarines has been opposed alike to the letter and the spirit of this treaty, and that, as far as the United States was concerned, the submarine has operated illegally because it has not allowed American vessels free intercourse and commerce with Germany's enemies, it has not "admitted" the vessel to proceed upon its voyage upon delivery out of the cargo when contraband, and it has not observed the formalities of visit and search prescribed by the two countries, binding the conduct as well as the conscience of each.

If it should be contended that the provisions of these treaties, acceptable in 1828, had become unacceptable in 1914 as tending to restrict the conduct of the party belligerent without a corresponding benefit to the neutral party, it should be said that, upon the eve of the outbreak of the war, as well as after its outbreak, the Imperial German Government itself insisted that the relations between the two countries were determined by the provisions of the Prussian treaties, which each country considered as binding Prussia when it became merged in the North German Confederation, as binding the North German Confederation of which Prussia became a part, and as still binding Prussia when the North German Confederation was dissolved and the German Empire was formed under the leadership of Prussia.

Malloy, Treaties between the United States and Other Powers, vol. 2, p. 1482.

CHAPTER XV

RENEWAL OF SUBMARINE WARFARE

On January 31, 1917, more than a month after the President of the United States had tried to elicit from the belligerents a statement of the terms of peace which they would consider in order to furnish a basis of negotiations tending towards peace, and within a week of the address of the President to the Senate, in which he outlined the international conditions and the principles which, in his opinion, were requisite to a durable peace-that is to say, while the President of the United States was thinking of the means whereby peace might be brought about and maintained, not whereby war might be declared and prosecuted-a note was addressed by the German Ambassador to Secretary Lansing, stating that on and after the 1st day of February, 1917, submarine warfare would be prosecuted without distinction between neutral and enemy ships found within the proscribed areas, thus withdrawing from the United States the guarantees hitherto made, and especially the pledge of May 4, 1916.

This action was foreshadowed in the Zimmermann letter, dated January 19, 1917, addressed to the German Minister in Mexico, which was intercepted on its passage through the United States by American authorities. This letter indicates a determination already reached by Germany to prosecute submarine warfare even more ruthlessly than theretofore, notwithstanding its assurance to the United States. and notwithstanding the possibility of rupture with the United States, although the Imperial German Government affected to believe that the United States might be kept a neutral. But in the event that the United States resented, as it did, the repudiation of Germany's promises and resorted to arms, an alliance was to be made in time of peace with Mexico, with which Germany was friendly, and with Japan, with which it was at war, for the partition of the United States.1

The German Ambassador's note of January 31, 1917, opens with language of friendly regard and commendation of the President's For a full consideration of the Zimmermann letter see infra, p. 309.

motives and expresses the regret of his country at the impossibility of realizing the President's lofty ideal because of the attitude of its enemies. These observations are evidently intended to show that a new situation has been "forced" upon the Imperial German Government which it must meet with vigor and effect, because the Ambassador, after this introduction, begins what may be regarded as the second part of his note:

A new situation has thus been created which forces Germany to new decisions. Since two years and a half England is using her naval power for a criminal attempt to force Germany into submission by starvation. In brutal contempt of international law the group of Powers led by England does not only curtail the legitimate trade of their opponents but they also by ruthless pressure compel neutral countries either to altogether forego every trade not agreeable to the Entente Powers or to limit it according to their arbitrary decrees. The American Government knows the steps which have been taken to cause England and her allies to return to the rules of International Law and to respect the freedom of the seas. The English Government, however, insists upon continuing its war of starvation, which does not at all affect the military power of its opponents, but compels women and children, the sick and the aged to suffer, for their country, pains and privations which endanger the vitality of the nation. Thus British tyranny mercilessly increases the sufferings of the world, indifferent to the laws of humanity, indifferent to the protests of the Neutrals whom they severely harm, indifferent even to the silent longing for peace among England's own allies. Each day of the terrible struggle causes new destruction, new sufferings. Each day shortening the war will, on both sides, preserve the life of thousands of brave soldiers and be a benefit to mankind.1

It seems proper to repeat in this connection that international law allows a belligerent, both by land and sea, to starve its opponent into submission and that, if Great Britain did not have the right to starve its enemy into submission, Germany would not have the right to starve Great Britain into submission. The methods adopted by Great Britain to effect this right may be open to criticism and the methods employed by the Imperial German Government may likewise be open to criticism, without, however, affecting the right to starve the enemy by means recognized and allowed by the law of Nations. The impossibility of the German statement, however, for present purposes lies in the fact that the unrestricted warfare which

the note and its inclosed memorandum announced is put upon the basis of retaliation for the illegal acts of Great Britain. Thus:

The Imperial Government could not justify before its own conscience, before the German people, and before history the neglect of any means destined to bring about the end of the war. Like the President of the United States the Imperial Government had hoped to reach this goal by negotiations. After the attempts to come to an understanding with the Entente Powers have been answered by the latter with the announcement of an intensified continuation of the war, the Imperial Government-in order to serve the welfare of mankind in a higher sense and not to wrong its own people-is now compelled to continue the fight for existence, again forced upon it, with the full employment of all the weapons which are at its disposal.1

After these statements of a general nature, suggesting but not actually declaring an intention to resort to submarine warfare, unless it is conveyed by the expression "with the full employment of all the weapons at its disposal," the Ambassador concludes this remarkable communication with an expression of trust and of hope, which, with the Sussex correspondence in mind, should have seemed to him. as unjustified as it certainly did appear unjustified to the President, the Secretary of State, and to the American people, "that the people and Government of the United States will understand the motives for this decision and its necessity," and "that the United States may view the new situation from the lofty heights of impartiality and assist, on their part, to prevent further misery and avoidable sacrifice of human life."1

The Ambassador then refers to "two memoranda regarding the details of the contemplated military measures at sea," which he inclosed, announcing unrestricted submarine warfare contrary to the assurances given to the American Government and in derogation of the principles stated in the communication transmitting them.

The first memorandum is a general announcement in the language of the Zimmermann note of "submarine warfare unrestricted" and the "employment of ruthless submarine warfare." The second prescribes the area in which "submarine warfare unrestricted" and the "employment of ruthless submarine warfare" will be prosecuted. The first memorandum is a restatement of the views of the Imperial

1 Official text published by the Department of State.