[Enclosure]
Memorandum by the Secretary of State on the Arming
of Merchant Vessels
[Washington,]
February 20, 1917.
The arming of merchant vessels of belligerent nationality and the
arming of merchant vessels of neutral nationality rest upon two
different principles.
A belligerent merchant vessel’s right to carry an armament and to
employ it in resisting attack by an enemy ship arises primarily from
the fact that a merchant vessel and its cargo are under the
recognized rules of naval warfare proper prize of an enemy who may
seize and confiscate them. As the vessel is not under the direct
protection of the armed forces of its government when traversing the
high seas, it may rightfully defend itself from seizure and thus
attempt to prevent its owner from suffering a total loss by reason
of its capture. If the rule as to private property on the high seas
was the same as that applicable to private property on land so that
it would be immune from confiscation without just indemnity, it is
probable that forcible resistance would be declared to be illegal;
but as long as the present rule of prize exists the right of defense
can not justly be denied to a belligerent merchant vessel.
A neutral merchant vessel’s right to carry and use an armament arises
primarily from two facts, first, the defenseless character of a
commercial vessel, and second, that, as a rule, there is no
protection furnished by a government to its merchant vessels on the
high seas against piracy or any other form of lawlessness imperiling
human life. It is manifestly impossible for a government to give
full protection to its merchant marine in all parts of the globe
and, therefore, its merchant vessels are warranted in being prepared
against lawless attacks and in resisting lawless assailants. It is
the same primitive law of self-defense that justifies an individual
in arming and defending himself from a highwayman in a region which
is known to be without police protection.
Neutral property on the high seas is by the laws of naval warfare
immune from confiscation by a belligerent unless it has through the
voluntary act of the owner become tainted with enemy character.
Against the exercise of the belligerent right of visit and search to
determine the character of its cargo a neutral merchant vessel has
no right to resist by force, since if it is engaged in innocent
trade it cannot lawfully be seized and confiscated. If, however, a
neutral merchant vessel is attacked by methods which ignore the rule
of visit and search, the immunity of innocent cargoes, and the
safety of human life, it possesses the right of self-defense whether
the lawless attack is made
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by a public or a private ship. The essential element of this right
of defense is the duty, as well as the right, to protect human life,
the protection of the property being incidental and subordinate to
the more important object. As to the loss of innocent neutral
property, whether it be vessels or cargoes, there is an adequate
remedy through the enforcement by diplomatic or judicial processes
of indemnities.
If an illegal attack is made upon a neutral merchant vessel under the
direct order of a belligerent government, the primitive right of
defense ought not by reason of that fact to be annulled or abridged.
To deny the right of resistance in such circumstances would amount
to legalizing illegality and to subordinating neutral right of
safety to life on the high seas to the arbitrary will of
belligerents.
If the orders issued by a belligerent government to its naval vessels
are flagrantly in violation of the laws of naval warfare which give
protection to the lives of neutrals traversing the high seas in
neutral bottoms (not to mention belligerent merchantmen) and if, by
notifying neutral governments that “all ships within” a certain
portion of the high seas “will be sunk,” the threat is made that
neutral ships and cargo will be destroyed without regard for the
safety of the persons on board the vessels, there would seem to be
no valid reason for a neutral government to refuse to allow its
merchant vessels to carry armaments and to use them to defend
themselves from the lawless attacks threatened. To compel a merchant
vessel to proceed on its voyage without means of defense, when it is
notorious that the laws of naval warfare protective of human life
will be disregarded by a belligerent, would come near to making the
neutral government an accessory in the crime and in any event
encourage the offending government to continue with free hand its
reprehensible practices. It would seem to be the duty of a neutral
government to give full sanction to and to advise its merchant
vessels to arm and resist illegal attacks of such nature.
With the right of a neutral merchant vessel to arm and to use its
armament to protect the lives of the persons on board if lawlessly
attacked, the question arises as to the duty of a neutral government
to provide the guns and gun crews necessary to equip its merchant
vessels for defense against the announced illegal purposes of a
belligerent.
This question viewed from the standpoint of abstract right offers
little difficulty as there can be no doubt but that a government
should defend, if it is able, its merchant vessels on the high seas
from all forms of outlawry and particularly so if the lives of the
persons on the vessels are imperiled. The practical means would be
to furnish an armament and trained men to man it. Such a course
would be based on the same principle as convoy except that the
vessel would be subject to the belligerent right of visit and
search. However, if a belligerent government gave notice which in
effect amounted to a
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declaration that the right of visit and search would not be
exercised, the very presence of a belligerent armed vessel would be
a menace to human life, and warrant the use of an armament to ward
off attack.
From the standpoint of expediency the question can be less readily
answered. A belligerent government having announced its purpose to
employ lawless methods of attack against all vessels regardless of
nationality or of the safety of the persons on board, might consider
resistance by an armament furnished by a neutral government and
served by gunners from its navy to be a hostile act amounting to a
casus belli. It would certainly entail a
certain measure of danger of creating a state of war between the
neutral and the belligerent.
On the other hand if the purpose of the announced policy of
lawlessness is to prevent by threats as well as by force neutral
vessels from entering a certain zone on the high seas which they
have a right to traverse in safety, the failure to provide arms and
trained men for defense would accomplish that purpose, if unarmed
vessels should refrain from entering the zone on account of fear of
the threats made and especially if they could not obtain an
efficient armament from other sources than the government.
Where the duty of a neutral government lies in such circumstances is
not entirely clear. The right to aid its merchant vessels to protect
the lives of the persons on board while traversing the high seas
seems certain, but if the exercise of the right is a menace to the
peace of the nation ought the right to be exercised? If refraining
from the exercise of the right encourages lawlessness and
accomplishes the purpose of the lawbreaker ought it not to be
exercised? If the failure to exercise the right increases the peril
to human life and prevents neutrals from entering certain portions
of the high seas through fear of lawless attacks should the neutral
government exercise its right if by so doing it will lessen the
peril and remove the fear of travelers?
In dealing with a situation in which a neutral government’s
obligations are manifestly complex and conflicting it is necessary
to have in mind the maintenance of rights, the national honor and
prestige, the future consequences of resistance or of non-resistance
to lawless acts from the domestic as well as the foreign standpoint,
the probability of a state of war resulting in any event, whatever
policy is adopted, the effect of a severance of diplomatic relations
upon the probable outcome, the expediency of awaiting an actual loss
of life before acting, the effect of delay of action upon domestic
popular support, the effect of immediate action upon the public
mind, the effect of non-action upon the commerce and industry of the
neutral, these and other subjects shoud be carefully considered and
weighed before a policy is determined upon.
