Without stopping to argue the question, which will be considered later, it should be stated that the German note points out the reason why visit and search would not be the "safest manner" to the German submarine, although it is recognized by international law to be the "safest manner" to the merchantman. Thus, the Imperial German Secretary says: "Moreover, the British Government have armed English merchant vessels and instructed them to resist by force the German submarines. In these circumstances it is very difficult for the German submarines to recognize neutral merchant vessels as such, for even a search will not be possible in the majority of cases, since the attacks to be anticipated in the case of a disguised English ship would expose the commanders conducting the search and the boat itself to the danger of destruction." It is to be observed that in this note the Imperial Secretary refers to the fact that The Lusitania had recently raised the American flag in order to escape its enemy and, as coming events are said to cast their shadow before, The Lusitania was soon to suffer at the hands of the submarine for the misuse of the American flag, by virtue of which it either did or tried to escape destruction.

Four days later, that is to say, on the 20th of February, 1915, the Government of the United States earnestly besought both Great Britain and Germany to come to an agreement upon the conduct of maritime warfare, and an identic note concerning this matter was sent to the two Governments. In doing so, Secretary Bryan was careful to point out that the United States, in addressing the belligerents, did not assume the right to dictate, but that, as a friend of each and in the common interests of humanity, it ventured to suggest a basis of agreement which, if accepted, would be a blessing to the world. The suggestions were of three kinds. The first related to an agreement of Germany and Great Britain, the second to an agreement of Germany, the third to an agreement of Great Britain. This part of the note is as follows:

Germany and Great Britain to agree:

1. That neither will sow any floating mines, whether upon the high seas or in territorial waters; that neither will plant on the high seas anchored mines except within cannon range of harbors for defensive purposes only; and that all mines shall bear the stamp of the Government planting them and be so constructed as to become harmless if separated from their moorings. 2. That neither will use submarines to attack merchant ves1Official text, American Journal of International Law, Special Supplement, July, 1915, p. 94.

sels of any nationality except to enforce the right of visit and search.

3. That each will require their respective merchant vessels not to use neutral flags for the purpose of disguise or ruse de guerre.

Germany to agree:

That all importations of food or foodstuffs from the United States and (from such other neutral countries as may ask it) into Germany shall be consigned to agencies to be designated by the United States Government; that these American agencies shall have entire charge and control without interference on the part of the German Government, of the receipt and distribution of such importations, and shall distribute them solely to retail dealers bearing licenses from the German Government entitling them to receive and furnish such food and foodstuffs to noncombatants only; that any violation of the terms of the retailers' licenses shall work a forfeiture of their rights to receive such food and foodstuffs for this purpose; and that such food and foodstuffs will not be requisitioned by the German Government for any purpose whatsoever or be diverted to the use of the armed forces of Germany.

Great Britain to agree:

That food and foodstuffs will not be placed upon the absolute contraband list and that shipments of such commodities will not be interfered with or detained by British authorities if consigned to agencies designated by the United States Government in Germany for the receipt and distribution of such cargoes to licensed German retailers for distribution solely to the noncombatant population.1

It is sufficient for present purposes to say that the attempt of the United States to bring about an agreement by a modus vivendi between Germany and Great Britain was unsuccessful.2

SECTION 1. THE "LUSITANIA'

On the 7th of May, 1915, The Lusitania was sunk by a German submarine off the coast of Ireland. The vessel was on its voyage from New York and, in addition to cargo, it carried 1,153 passengers. Of this number 783 lost their lives, and among these were over a hundred American citizens, men, women, and children. The Lusitania was torpedoed without warning at 2:30 o'clock in the afternoon

1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 98-99.

2 Ambassador Gerard to the Secretary of State, Berlin, March 1, 1915, ibid., p. 99; Ambassador W. H. Page to the Secretary of State, London, March 15, 1915, ibid., p. 106.

and no attempt was made by the submarine to remove the passengers from the torpedoed vessel or to rescue them from the water after the liner had sunk. This was not the first passenger steamer which had been sunk by the Germans since the submarine campaign was announced in February and relentlessly and indiscriminately prosecuted. In a note of Secretary Bryan to the American Ambassador at Berlin dated May 13, 1915, he stated:

The sinking of the British passenger steamer Falaba by a German submarine on March 28, through which Leon C. Thrasher, an American citizen, was drowned; the attack on April 28 on the American vessel Cushing by a German aeroplane; the torpedoing on May 1 of the American vessel Gulflight by a German submarine, as a result of which two or more American citizens met their death; and, finally, the torpedoing and sinking of the steamship Lusitania, constitute a series of events which the Government of the United States has observed with growing concern, distress, and amazement.1

The sinking of The Lusitania was therefore not an isolated act, but it was one of a series, and, unfortunately, as events proved, it was but one of a continuing series. It stood out, however, and it still stands out as the chief among the many victims of the submarine, just as in a later period the torpedoing of The Sussex stands out among the many victims of the submarine. The sinking of The Lusitania amazed and dazed the American people. The sinking of The Sussex convinced them that there would be a break between the two countries unless there were a radical change in submarine warfare. Each incident was the occasion for an elaborate and a frank interchange of views, resulting in a statement and a promise, which would have maintained peace between the two countries had the promises not been broken. Each of these two instances will be considered in detail. First, as to The Lusitania.

The Imperial German Government evidently meant The Lusitania to be a test case. It had apparently formed an intention in advance to destroy this vessel, either because of its use of a neutral flag on two occasions in order to elude the submarine or because the destruction of a huge liner plying between New York and Liverpool would call the attention of the United States to the gravity of the situation and force the issue. It is common knowledge that persons intending to travel on The Lusitania were in some cases warned by anonymous Official text, American Journal of International Law, Special Supplement, July, 1915, p. 130.

telegrams not to take passage upon the ship, and the following notice appeared in the American press shortly before the sailing of The Lusitania purporting to come from the Imperial German Embassy, warning American citizens not to take passage on the liner.

NOTICE!

TRAVELERS intending to embark on the Atlantic voyage are reminded that a state of war exists between Germany and her allies and Great Britain and her allies; that the zone of war includes the waters adjacent to the British Isles; that, in accordance with formal notice given by the Imperial German Government, vessels flying the flag of Great Britain, or of any of her allies, are liable to destruction in those waters and that travelers sailing in the war zone on ships of Great Britain or her allies do so at their own risk.

IMPERIAL GERMAN EMBASSY

Washington, D. C., April 22, 1915.1

This is an astounding document to issue from an Embassy, and its issuance has never been denied or repudiated. It can only be paralleled by Citizen Genêt's appeal from the President of the United States to the American people in behalf of what he was pleased to call, during the early days of the French Revolution, the rights of his countrymen against Presidential usurpation. It would have been proper to ask the Imperial German Ambassador to deny its authenticity or the Imperial German Government to disavow the act, and in case of a refusal to do one or the other, to hand the Ambassador his passports. Instead of that, Secretary Bryan thus referred to this phase of the incident:

There was recently published in the newspapers of the United States, I regret to inform the Imperial German Government, a formal warning purporting to come from the Imperial German Embassy at Washington, addressed to the people of the United States, and stating, in effect, that any citizen of the United States who exercised his right of free travel upon the seas would do so at his peril if his journey should take him within the zone of waters within which the Imperial German Navy was using submarines against the commerce of Great Britain and France, notwithstanding the respectful but very earnest protest of his Government, the Government of the United States. I do not refer to this for the purpose of calling the attention of the Imperial German Government at this time to the surprising irregularity of a communication from the Imperial German Embassy at Washington addressed to the people of the United States through the 1 The New York Times, May 1, 1915, adv., p. 19.

newspapers, but only for the purpose of pointing out that no warning that an unlawful and inhumane act will be committed can possibly be accepted as an excuse or palliation for that act or as an abatement of the responsibility for its commission.*

Secretary Bryan in The Lusitania note recalled to the attention of the Imperial German Government the statements he had previously made, that he could not accept the proclamation of a war zone as "an abbreviation of the rights of American shipmasters or of American citizens bound on lawful errands as passengers on merchant ships of belligerent nationality," and that the United States intended to hold the Imperial German Government "to a strict accountability for any infringement of those rights, intentional or incidental." Secretary Bryan further stated, on behalf of the United States Government, that Germany should, in the conduct of naval warfare, admit and act upon the principle that the lives of noncombatants, whether they be enemy or neutral, "cannot lawfully or rightfully be put in jeopardy by the capture or destruction of an unarmed merchantman" and that the Imperial German Government should, "as all other nations do," recognize "the obligation to take the usual precaution of visit and search to ascertain whether a suspected merchantman is in fact of belligerent nationality or is in fact carrying contraband of war under a neutral flag"; that, if the submarine could not comply with the requirements of international law as hitherto understood and accepted in the premises, the use of such an instrumentality could not be permitted; and the United States made it very clear in this note that it was impossible to conform the actions of the submarine to the requirements of international law. and that therefore the submarine was an outlaw in the domain of law. Thus:

The Government of the United States, therefore, desires to call the attention of the Imperial German Government with the utmost earnestness to the fact that the objection to their present method of attack against the trade of their enemies lies in the practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice, and humanity which all modern opinion regards as imperative. It is practically impossible for the officers of a submarine to visit a merchantman at sea and examine her papers and cargo. It is practically impossible for them to make a prize of her; and, if they cannot put a prize crew on board

1 Official text, American Journal of International Law, Special Supplement, July, 1915, p. 132.