(Birkenhead to Imp,Cabinet; in Lloyd George ‘The truth about the Peace Treaties, Vol.1, p.105-112)
Lord Curzon conveyed to the Law Officers of the Crown some days ago the desire of the Cabinet that they should give their opinion on this matter. The Law Officers pointed out the extreme importance, delicacy and difficulty of the matter submitted to them and the fact that they themselves were very much engaged in other matters, and asked what period of time could reasonably allowed to them to produce a written opinion adequate to the gravity of the topic. Lord Curzon at that time took the view that they might be allowed ten days. Well of these ten days I think, four or five have elapsed, and therefore the Cabinet will excuse any imperfection of form in the statement I am about to make. We have however arrived at a clear conclusion, otherwise we should have informed the Cabinet that we were not yet in a position to give definite and final advise. The matters involved there are partly legal and partly matters of policy. So far as they are matters of policy, the Cabinet will of course merely treat our views as the opinions of colleagues who are entitled to, and who are not claiming, any special weight. The main question, here which we, in common with our Allies, have to consider is whether the taking of proceedings against, or any punitive treatment in relation to, the Kaiser, should become the declared policy of the Government.. The Law Officers of the Crown answer this question in the affirmative. They point out to the Cabinet that the choice now to be taken is between two diametrically opposed courses, and that no half-way house is possible in the matter. The first is a decision in favour of complete impunity, an impunity which will be described as luxurious and wealthy; the second is in favour of punishment. We wish the Cabinet to consider very carefully how it will be possible for them to justify a decision in favour of impunity. The ex-Kaiser’s personal responsibility and supreme authority in Germany have been constantly asserted by himself, and his assertions are fully warranted by the constitution of Germany. Accepting, as we must, this view, we are bound to take notice of the conclusion which follows; namely, that the ex-Kaiser is primarily and personally responsible for the death of millions young men; for the destruction in four years of 200 times as much material wealth as Napoleon destroyed in twenty-five years; and he is responsible- and this is not the least grave part of the indictment- for the most daring and dangerous challenge to the fundamental principles of public law which that indispensable charter of international right has sustained since its foundations were laid centuries ago by Grotius. These things are very easy to understand, and ordinary people all over the world understand them very well. How then I ask, are we to justify impunity? Under what pretext and with what degree of consistence, are we trying smaller criminals? It is still proposed- it has been repeatedly threatened by the responsible representatives of every Allied country- to try in appropriate cases, submarine commanders and to bring to justice the governors of prisons? Is it proposed to indict the murderers of Captain Frat? In my view, you must answer all these questions in the affirmative. I am at least sure that the democracies of the world will take that view and among them, I have no doubt that the American people will be numbered. How can you do this if, to use the title claimed by himself, and in itself illustrative of my argument, the ‘All Highest’ is gie impunity? Must we not at the moment of our triumph avoid the sarcasm; ‘Dat veniam corvis, vexat censura columbas’? In order to illustrate the point which is in my mind I will read to the Imperial War Cabinet a very short extract, which represents our view with admirable eloquence, from Burke’s speech in the trial of Warren Hastings;-
‘We have not brought before you an obscure offender, who, when his insignificance and weakness are weighted against the power of the prosecution gives even to public justice something of the appearance of oppression; no, my Lords, we have brought before you the first man of India in rank, authority and station, We have brought before you the Chief of the tribe, the head of the whole body of eastern offenders; a captain-general of iniquity, under whom all the fraud, all the peculation, all the tyranny in India are embodied, disciplined, arrayed and paid. This is the person, my Lords that we bring before you. We have brought before you such a person that if you strike at him with the firm and decided arm of justice, you will not have need of a great many more examples. You strike at the whole corps if you strike at the head’.
Prime Minister, in my judgement, if this man escapes, common people will say everywhere that he has escaped because he is an emperor. In my judgement, they will be right. They will say that august influence has been exerted to save him. It is not desirable that such things will be said. especially in these days. It is necessary for all time to teach the lesson that failure is not the only risk which a man possessing at the moment in any country despotic powers, and taking the awful decision between Peace and War, has to fear. If ever again that decision should be suspended in nicely balanced equipoise, at the disposition of an individual, let the ruler who decides upon war know that he is gambling among other hazards, with his own personal safety. For these reasons, we think the ex-Kaiser should be punished. If this view is accepted, the question arises; how is his person to be secured? And the question has been asked, whether or not he can be extradited. Now Sir, the French have apparently expressed the view that he can. My own clear opinion is that that view is wrong. And I think that my colleague, the Solicitor-General, is, on the whole, of the same opinion. But is not necessary to argue that question, because we do not propose to involve ourselves in a doubtful technical argument when we have more powerful weapons at our disposal. Infinite vistas of litigious disputations are opened by an argument whether according to the law of Holland he can be extradited or not. And if, contrary to my opinion, he could be extradited, he could only be charged for the very offence (possibly a limited one) which had been successfully alleged on the ground in law of his extradition. I think it is unnecessary to ask whether in law we can extradite him because it seems to me that Holland must, in effect, give him up. The League of Nations or the Conference of the Allies which will precede the formation of the League of Nations has, or will have, powerful arguments to address to Holland and the internal condition of Holland seems to me to be such that it would be very difficult for her to reject arguments of the kind indicated. This is not a point of law, but my own conclusion is that the difficulty of obtaining control of the person of the ex-Kaiser from Holland will not be an insuperable one, though I should naturally defer to the views of the Foreign Office upon such a point. It may perhaps be assumed that the difficulty will not arise which would be occasioned in this connection by the ex-Kaiser’s return to Germany. The taking of unnecessary risks has not up to the present been a distinguishing feature of his career. Different considerations might arise if the reconstitution of Germany should really bring with it an honest desire to deal with the Kaiser themselves. The few observations therefore which I have still to make will be made upon the assumption that it will be possible to obtain control of his person. I have made it clear that in our judgement control should not be sought through the machinery of extradition. Supposing control of his person has been obtained, how is he to be dealt with? There are two alternative courses. In the first place, he might be treated by the Allies as napoleon was treated, that is to say, by a high assertion of responsibility on the part of the conquering nations. The Allies might say; we are prepared before the bar of history, to take upon ourselves the responsibility for saying that this man has been guilty of high crimes and misdemeanours, that he has broken the peace of the world, and that he ought either to be exiled or otherwise punished in his own person. That course may be recommended by powerful argument and I do not myself exclude it, Prime Minister. I do not say more of it at this stage than this, that by its adoption we should avoid the risks of infinite delays and of a long drawn out impeachment. We should carry with us the sanction and support of the overwhelming mass of civilisation. And we are bold enough to feel that we have nothing to fear from the judgment of the future. It is even possible- as Austria and Germany will be reconstituted that there will be few dissentients in the governing classes of these countries.
The second alternative is that he should be tried by a Court which must evidently be international in its composition. There are obvious advantages in this method upon the moral side if this method of dealing with the situation be carried in a logical conclusion. It is, of course, very desirable that we should be able to say that this man received fair play, and that he has had a fair trial, but grave difficulties beset this course in its complete application. In this connection, how is the Court to be constituted? Are neutrals to be members of the Court? Are Germans to be members of the Court? The only advantage of judicial procedure over the other alternative- a high exercise of executive and conquering force submitting itself to the judgment of history- lies in the fact that for all time it may claim the sanction of legal forms and the protection, in favour of the prisoner, of a tribunal whose impartiality can be established in the face of any challenge. This advantage, it must be observed, largely disappears if the fairness of the tribunal can be plausibly impeached. The Law Officers are not, indeed, of opinion that before a tribunal which consisted in part even of Germans, as Germany appears to be developing to-day, an indictment would necessarily fail. But it is unwise to ignore the difficulties. German and neutral representation would undoubtedly be claimed by the Kaiser. We can only qualify the consequent risk by saying that the German representatives would certainly less German than they were and the neutral representatives less neutral. If a court be constituted, I confess that I myself incline on the whole to the view that the members of the court should consist only of citizens of the Allied countries. Grave judges should be appointed but we should, as it seems to me at present, take the risk of saying that in this quarrel we, the Allies, taking our stand upon the universally admitted principles of the moral law, take our own standards of right and commit the trial of them to our own tribunals. I cannot, because time is short, develop the matter as I should like now, and therefore I merely place it on record that I am well aware that the opposite view may be supported by formidable arguments. The great question which I shall probably asked- and here again- inter-Allied discussion will be necessary- is: for what offences in your view (assuming the adoption of judicial proceedings) should the ex-Kaiser be made justifiable? The first charge which will occur to many persons is one which raises in limine the question of his responsibility for the origin of the war.
Well Sir, I can only say, without giving a decision, that the trial of such a charge would involve infinite disputation. We do not wish to become involved in a trial like that of Warren Hastings in its infinite duration. We do not wish o be confronted by a meticulous examination of the history of European politics of the last twenty years. It is very easy to see that no German advocate of the ex-Kaiser would find it difficult to enlarge the area of discussion carrying it to what would be described in gem any as the ‘ringing ound’system and discursively spreading from the question of the origin of the war to a close discussion of the military significance of the Russian strategic railways. The view that I have at present, is that it would not be wise to add so general a charge, but this provisional view might easily be modified if new and decisive documents were produced like those recently disclosed by the Bavarian Minister, who was in Berlin in August 1914. Such revelations are very likely to be made.
The second charge is extremely clear and it is, in my judgment, a decisive one. A count should certainly be inserted in the indictment charging the Kaiser with responsibility for the invasion of Belgium in breach of International Law and for all the consequent criminal acts which took place. That is an absolutely clear issue and upon it I do not think that any hones tribunal could hesitate. It is even possible, obscure as the present situation in Germany is, that a partly German tribunal convened under existing circumstances in Germany would reach the same conclusion.
The next charge, in my judgment, which should be brought against him is that he is responsible in the matter of unrestricted submarine warfare. It may be necessary to associate other defendants in this charge. But it will in my judgment, be absolutely impossible for us to charge or punish any subordinate if the ex-Kaiser escapes with impunity all responsibility for the submarine warfare. I wish to press most strongly upon my colleagues certain fundamental considerations in regard to submarine warfare, as it has been carried on since the incident of the Lusitania. Since then, thousands of women and children, in our clear and expressed view, have been brutally murdered. I am dealing with the case where a ship is torpedoed carrying no munitions of war, but which it is known must or may be carrying women and children, and where it is equally known that such passengers had no possible means of escape and I do not in this connection deal with the vile cases of assassination when helpless boats, vainly attempting to escape, have been fired on and destroyed. Excluding the last class of cases, it is our view and the view of the whole civilised world, that those acts amount to murder. It is surely vital that if ever there is another war, whether in ten or fifteen years, or however distant it may be, those responsible on both sides for the conduct of that war should be made to feel that unrestricted submarine warfare has been so branded with the punitive censure of the whole civilised world that it has definitely passed into the category of international crime.’ If I do it and fail’, the Tirpitz of the next war must say: “I too shall pay for it in my own person”.
How can we best assure that no one in future will dream of resorting to submarine warfare of this kind? You can best secure it by letting the whole world know that, by the unanimous consent of the whole of that part of the civilised world which has conquered in this war, the man responsible for those acts is responsible in his own person for that which he has done. To us of all people it is not possible to exaggerate the weight and force of these considerations. Nothing more vitally concerns these islands than that it should be recognised that these acts are crimes. The commission of such crimes and their possible future development menace us more directly than any other nation in the world.
The above are suggestions, and not necessarily exhaustive suggestions, in regard to the offences for which the Kaiser should be tried. There are other, individual cases, with which I do not think it necessary of trouble the cabinet at this stage. It is true that the prime Minister authorised me to form a Committee to report upon these matters, but the Law Officers obviously cannot place their responsibility for advising the Government in legal matters in the hands of anybody else, and they have arrived at their conclusion independently of the conclusions of this Committee, and, indeed, before they were informed of them. I think I ought to point out who are the members who compose this Committee, which is the Sub-Committee on Law of the Main Committee.
Of these, Sir John MacDonnell, Mr. Justice Peterson and Mr. Gill are no members of the Sub-Committee on Law, but were called in for the special purpose of discussing the new issue as regards the ex-Kaiser. I think the Lord Chief Justice will agree that it would not be possible in this country to form a stronger Committee for the purpose of arriving at a sound conclusion upon such matters. It is a source of satisfaction to the Law Officers that this Committee has unanimously and independently of them reached the conclusion that the ex-Kaiser ought to be punished either by way of trial or as Napoleon was punished. The Committee in clines to the first of those courses, namely that he should be tried. I am not at present wholly convinced upon this point, and, in the written opinion which the Solicitor-General and myself contemplate, we propose to discuss this matter in greater detail. Probably I have said enough to make the Cabinet aware of the views held by the Law Officers. I could, and would, have said much more if I was not concerned to be economical of your time. As Chief Law Officer of the Crown I say quiet plainly that I should feel the greatest difficulty in being responsible in any way o the trial of subordinate criminals if the ex-Kaiser is allowed to escape.