Dr. Van Dyke, "were in plain language, good English, quite innocent and proper; but the kernel of the dispatch was written in the numerical cipher of Vienna, which of course I was unable to read. I drew attention to this, and asked mildly how I could be expected to put this passage into our code without knowing what the words were. answer was that it would not be necessary to code this passage; it could be transmitted in numbers just as it stood; the Austro-Hungarian chargé d'affaires at Brussels would understand it." The "Quite so," replied Dr. Van Dyke, "but you see the point is that I do not understand it." And without giving the slightest offense to his colleague, who admitted that his point was "perfectly clear and indisputable," he declined to transmit the dispatch, on the ground, as he alleged, that the American instructions explicitly forbid sending a message in two codes. The sending of such a message, even though the use of two codes were not forbidden, would imply collusion with a belligerent and would constitute a clear case of unneutral service. Not only so, the ostensible message being in appearance what it is not, and the real message being conveyed under cover of concealment, it is an act of unneutral service accompanied by fraud. The mere fact that the German chargé d'affaires appealed to the Swedish Legation to forward his dispatches under the cover of Swedish dispatches is a confession that the messages conveyed could not be safely transmitted without such aid. In the case of a ship performing precisely this service, namely, the secret transmission of dispatches, the penalty, as intimated above, if captured, is confiscation. The reasons for this, as stated by Lord Stowell, do not affect the nature of the medium used for the purpose of transmission. They apply to a cable as well as to a ship, but with the difference that the act in the case of a ship is liable to detection and penalty, while the transmission of a cablegram under the cover of the diplomatic immunity possessed by another government runs only a slight risk of discovery, and no risk of property confiscation. The guilt of such transmission is increased by this circumstance; because while the offense, in principle and effect, is the same, the dishonor of it is evidently greater. The nature of the offense is well pointed out by Lord Stowell in the case of the Atalanta (6 Robinson, 440), a Bremen ship, captured on a voyage from Batavia to Bremen, whose master and one of the supercargoes had taken on board at the Isle of France a package of French Government dispatches, afterward found concealed in the possession of the second supercargo. In his judgment Lord Stowell says: If a war intervenes, and the other belligerent prevails to interrupt communication, any person stepping in to lend himself to the same purpose (to establish communication), under the privilege of an ostensible neutral character, does, in fact, place himself in the service of the enemy-state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The consequence of such a service is indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign that may defeat all the projects of the other belligerent in that quarter of the world. . . . It is a service therefore which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature. . . . I have the direct authority of the Superior Court for pronouncing that the carrying of dispatches of the enemy brings on the confiscation of the vehicle so employed. In conclusion, the learned jurist holds that the offense of carrying dispatches is greater than that of carrying contraband. To talk of confiscating dispatches is ridiculous, as it would inflict no loss on the guilty person. In order, therefore, to signalize the enormity of the offense, he pronounces both ship and cargo subject to condemnation. Where, in the case of an equal offense but in the absence of penalty, is a victim of unneutral service in the form of the secret forwarding of dispatches by cable or telegraph to find redress? Before what tribunal may such offenses be brought? What means are to be employed to prevent the occurrence of such offenses? These are questions of too wide a scope and too great complexity to be discussed here, but they will no doubt receive careful consideration when competent authorities assemble to deliberate concerning those revisions and enlargements of the law of nations which the new conditions of international life imposed by electrical transmission of intelligence will require. In the meantime the use to be made of the new means of secret communication offers an opportunity to exercise the self-respect and good faith of governments and their agents in observing the spirit of the law, by carefully avoiding a form of unneutral service between belligerents which is peculiarly odious, because it may be rendered with comparative impunity under the protection of secrecy. It is, perhaps, an indication of what the mature judgment of governments upon this subject will be, that Baron Lowen, notwithstanding the declaration of the Swedish Foreign Minister that there was "no responsibility for the tenor of the German messages," is reported to have departed from Buenos Aires without making the customary farewell visits to the officials there, which seems to imply that he was leaving in disgrace. DAVID JAYNE HILL. ARGENTINA AND GERMANY: DR. DRAGO'S VIEWS La Razón, a great daily paper of Buenos Aires, in its issue of April 10, 1917, invited the most prominent men of Argentina to express their opinions on the attitude which their country ought to assume and observe in the present European War. Among others, Dr. Luis M. Drago, statesman and publicist, was asked, and the opinion which he gave was not only valuable because of his political position and the intellectual standing of its author, but also on account of his international reputation, founded by his note of December 29, 1902, creating the Drago doctrine, increased, if possible, as delegate of his country to the Second Hague Peace Conference, and maintained as a member of the so-called Permanent Court of Arbitration at The Hague. Dr. Drago's opinion, therefore, of interest to his countrymen, has also an international interest, and for this reason a translation of it follows in full: My opinion, as I had occasion to state it to several persons closely related to the government, has been, from the start, that we should have followed the United States when that nation came to the conclusion that it must sever diplomatic relations with the German Empire. The submarine blockade and the threatening intimation made to us by forbidding Argentine vessels and citizens to navigate in a war zone arbitrarily marked out in the high seas, in open violation of the most elemental principles of international law, should have amply justified such an attitude. To-day the situation is still more serious and grave. The United States are in a state of war with the German Empire. The conflict assumes the very form in which it is presented in President Wilson's message: democracy against absolutism. How could an American nation stand aloof from this conflict and retain the status of a neutral without abhorring its past and at the same time jeopardizing its present and its future? Brazil is preparing to assume its place among the belligerents, and very soon other states of America will follow her. Shall this Republic, by breaking the bonds of solidarity with its Latin sisters and its traditional policy, be able to continue in a state of isolation which nothing can justify and which would, furthermore, be full of dangers? I believe, therefore, that we must very quickly make ready to swell the ranks of those who uphold the rights of nations as against the oppression of absolute governments, and thus show, once more, in the name of justice, the material and moral union of this continent, for the defense of their essential rights of independence and sovereignty, which, in the end, are nothing else than the assertion of democratic principles in international relations. The present number of the JOURNAL1 contains an editorial comment by a distinguished North American publicist on the Luxburg incident. The JOURNAL offers, in addition, the following translation of an opinion of Dr. Drago, given to the press of Buenos Aires on September 13, 1917: The telegram of Count Luxburg cannot be considered as an individual act affecting only himself personally. It was the result of an intimate collaboration between him and his government, and it was part and parcel of an exchange of data, opinions and views, of a "correspondence," properly so-called, intended to determine the conduct of the Empire in its naval policy in regard to us. It is not the minister accredited here who has ceased to be persona grata to this country; it is the German Government itself, which received the monstrous advice to sink Argentine vessels without leaving a trace, that is directly responsible for the abusive conduct of its agent, who, long after the date of the telegram, has continued in the discharge of his double duties of diplomatic envoy and of a spy attached to the Swedish Legation. The German Government seems to have received with pleasure the secret communications of the agent, who has treated us so contemptuously, if we are to judge by the fact that he was retained and encouraged in his office, and that it was through him that the case of the Toro was finally settled by which the good faith of our Foreign Office was betrayed. It must be recalled that the Imperial Government formally proposed that the negotiations for this settlement should be carried on in Buenos Aires with Count Luxburg, the author of the telegram. It is not improbable that the sinister counsel of the minister was followed in the case of the Argentine steamer Currumalán, which mysteriously disappeared a few months ago "without leaving a trace” while carrying a cargo of coal between Liverpool and Bahia Blanca. Everything points to the belief that the recent explanations and promises of Germany had no other purpose than the preservation in this country of its extensive South American spy agencies, with the help of the Swedish Legation; and if such a government should now give us new explanations and new protestations of friendship, it would only mean that it had another hidden purpose. If many months ago I thought, as I took occasion to state publicly, that we should have severed our relations with Germany, when she decreed her inadmissible blockade, I am to-day still more convinced that it is not possible to maintain cordial relations with a country which employs such methods and such agents. The severance of our relations with Germany, while gratifying to our national dignity, would place us beside the great democratic nations of the world, and would strengthen the bonds of solidarity with our sister Republics of this continent. Doctors are proverbially said to disagree. In the present instance, in the interest of the United States of America, it is pleasing to note 1 Page 135. that they are in accord, and that international policy and international law, as stated by Dr. Hill in Washington, is the same as that stated by Dr. Drago in Buenos Aires. J. B. S. THE ESPIONAGE ACT The so-called Espionage Act,1 approved June 15, 1917, embraces much more than its popular title would indicate. Technically it is "An Act to punish acts of interference with the foreign relations, neutrality, and the foreign commerce of the United States, to punish espionage and better to enforce the criminal laws of the United States, and for other purposes." Its provisions concern numerous unrelated matters of vast importance to the nation, whether a belligerent or a neutral. These are responsive to recommendations of the Attorney General submitted in 1916, after having been concurred in by the Secretary of State and by the Joint State and Navy Neutrality Board.2 The Act contains thirteen titles. The sections relating to espionage are designed broadly to prohibit and render criminal, attempts to obtain information respecting any aspect of the national defense for a use injurious to the United States, as well as attempts to communicate such information to foreign governments, or to any factions or parties within a foreign country, whether recognized or unrecognized by the United States. It is provided that when the United States is at war, whoever shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of its military or naval forces, or to promote the success of its enemies, and whoever, at such a time, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in such forces, or shall willfully obstruct the recruiting or enlistment service, to the injury thereof or of the United States, shall be subjected to punishment. The harboring or concealing of any person who, there is reasonable ground to believe, has committed. or is about to commit an offense under this title is rendered criminal. The serious damage inflicted upon German and Austrian vessels in American ports by their officers and crews early in 1917 rendered it important that by appropriate legislation the President should be en 1 Printed in SUPPLEMENT to this JOURNAL for October, 1917, p. 178. 2 The recommendations referred to are printed in an editorial in this JOURNAL for July, 1916, pp. 602-606. |