1915
These articles appeared this year in the April, August, and September
numbers of _The Nineteenth Century and After_, and I have to thank
the Editor for allowing me to reprint them so soon after publication.
They are a justification of the much-attacked Order in Council of 11th
March, 1915.
In reply to the German submarine menace the British Government
resorted, by way of Reprisals, to a method of strangling the enemy’s
commerce which, on the one hand, was wider in its scope than any list
of contraband, and, on the other, was free from the ‘legal niceties’
which surround a declaration of blockade. Neutral merchants declared
that it hit them hard, and the Government of the United States
protested that it exceeded the limits which international law has
placed to the right of a belligerent to interfere with neutral trade.
The British Government replied justifying its action, and there, one
would imagine, the matter should have rested for arbitration after
the War. But the Government of the United States has continued its
protests, has indeed just renewed them in most vigorous language,
desiring to deflect us, in the interests of its commerce, from a course
which must materially assist in crushing our enemy.
It is not customary, except in one clear case, for a neutral Government
to insist that a belligerent should adopt, _in medias res_, its views
of a question which does not involve any issue of peace or war: to
press on him, _in medium bellum_, a modification of his belligerent
action which might cost him the victory. The clear case of exception
is when, philosophy at fault, there are not two sides to the question,
but one only, and that testified to by flagrant breaches of the laws of
humanity and war. Everything else is fair fighting; and for a neutral
Government, because its own commercial interests are affected, to
insist on the adoption of its view of a debateable point, to persist
that it is not debateable, to take action, in itself a violation of
international law,[1] savours of unneutral service. In the absence of
suggestion of anything but perfect good faith, in the face of much
demonstrated care of the interests of its citizens, the abandonment by
a neutral Government of the dispassionate attitude which neutrality
requires not merely heartens the enemy but must result in rendering him
material assistance.
The United States Government, by placing England and Germany
on the same plane of protest,--the ‘lawless conduct’ of the
belligerents--has, as it seems to me, lost the true measure of
national right and wrong on which humanity must rest its laws if
civilisation is to continue. In redressing wrongs the law has never
placed injuries to life and property on the same level. A neutral
Government whose citizens have suffered in life by the action of one
belligerent, in fortune, however grievously, by the action of the
other, must yet be guided as to the manner of its protests by the
relative degree of the offences.
Now, assuming England’s high-sea policy to be illegal, two things
appear to me clear: First, that we are entitled to claim from the
United States a consideration of the circumstances which led to the
commission of the offence of which we are accused, in order to see
whether, as Reprisals, it was not justified. The Protest of the 2nd
of April expressly refuses this consideration; it proceeds on the
assumption that Reprisals can never be resorted to against an enemy, if
the interests of a neutral trader are affected: Secondly, that, quite
apart from the Arbitration Treaty, we are justified in insisting on a
reference to arbitration after the War as the complete present answer
to the charge, for this all-sufficient reason, that on calm review it
may appear that our action is warranted by international law. There is
no indication in the last paragraph of the new Protest that this view
is acquiesced in by the United States.
Reduced, therefore, to its simplest expression, the position taken
up by the United States is this: Our trade is of greater importance
than your victory. Admitting the hypothesis to the full that a neutral
country has no interest in the result of a war, is unconcerned which
side wins, yet I do not believe that this attitude finds any warrant
in the principles on which international law is based. But there is
another and very practical reason in favour of my second contention.
Too strenuous a protest is apt to make men look a little below the
surface of mere words, to turn their attention curiously to trade
statistics. They have been dexterously handled in the British answers.
A neutral Government is not the best judge of its merchants’ claims;
inevitably it becomes their advocate, and in the tangle of discussion
is apt to identify itself with commercial transactions which, it is
common knowledge, often need the closest investigation. The true
position of a neutral Government, the almost complete severance from
its protection of merchants who deal, however indirectly, with a
belligerent, demands, I venture with great deference to assert, an
altogether different attitude from that taken by the United States
Government.
International law has of late been the subject of much loose talk, by
the German especially; and some colour has been lent to his assertions
by the nature of the American Protests to Great Britain. International
law does not profess to govern the conduct of belligerents between
themselves, but only the laws of war. Except in so far as these have
been incorporated in conventions, except in so far as the principles of
humanity have been reduced into concrete words and so have become laws
binding the consenting nations when they fight, it is not the province
of international law to mitigate the blows of war.[2] A neutral
Government is not concerned with the methods of warfare adopted by a
belligerent until they ape the barbarian. Then, even in the absence
of convention, it is entitled to protest in the name of our common
humanity. Conventions to which both belligerents and the neutral are
parties entitle it to support its protest by diplomatic action. But,
convention or no convention, more strenuous action is justified by the
application of elementary legal principles when its citizens, pursuing
their normal avocations, are injured.[3] International law, properly
understood, governs the relations of belligerents with neutrals.
Its sanctions are not belligerent action, nor any action against
the alleged offender, which may even indirectly benefit the enemy.
Arbitration after the War, and compensation, are the only remedies
when neutral property has been injured. Then, and only then, can the
principles of international law be calmly discussed; then, and only
then, can any new departure by a belligerent be tested by a reference
to fundamental principles. The reason is obvious. International law is
a progressive science; it has not yet pronounced its last word on the
relations between belligerency and neutrality. A neutral Government is
not entitled to assume that it alone is the judge of what that last
word will be.
These fundamental principles have been lost sight of in the Protests
of the United States to Great Britain. Yet there never was a case in
which calm discussion was more necessary, for we have come to a point
when the question is definitely raised whether international law is
to stand still where the last war left it, or whether its principles
are sufficiently elastic to allow of their adaptation to modern
developments of the machinery of war. I say deliberately that this calm
discussion must result in the completest justification of the Order in
Council; if it does not, the doom of international law is certain.
But the discussion which has arisen round the Order in Council has one
peculiar feature. It is, I suppose, one of the blessings resulting
from freedom of speech that our own people should criticise the action
of their Government, even when the country is engaged in a conflict
which must be fought out to the bitter end. To so much of the world
as lies beyond the shadow of the clouds of war, that little fragment
of it which is still capable of calm thinking, this curious spectacle
has been presented, that to the passionate assertions of the Central
Powers, to the dispassionate threats of the United States, there has
been added the angry criticism of our own people, in which the press
and correspondents, of high and low degree of learning, have joined
without remorse. I have looked in vain for one defender of the faith.
Assuredly American dialectic needed no such heartening; the insistence
that the American view of international law is alone worthy to be
received needed no such support as it has had from our own people. It
is true that some of them have been inspired by the British desire
that, whate’er betide, England must fight fair. But the end which the
angry criticism had in view, and professes to have achieved, was not
this at all; it was that the Government should take other steps to
accomplish what had already been accomplished by the Order in Council,
should decline on a range of lower action, and a narrower line of legal
thought. The new Protest, in paragraph 19, does not fail to make the
point. Whatever it may be worth, the distinguished chemists, foremost
among the critics, are responsible for furnishing the United States
with the argument.
The demand for action, so strenuously expressed, during the
Cotton-Contraband discussion, entirely ignored what the Government
had already done. There may have been cause for criticism as to the
effectiveness of executive action. I do not profess to know; but
whether this were so or not, it was not to be remedied, as it was
attempted to be remedied, by an attack on the validity of the Order in
Council. It was said that many lawyers are agreed that it was invalid.
I have ventured to present the other side for public consideration.
A system of law, though intermittently created as occasion has
arisen, must, if it is to be taken as serious law, stand the test of
an evolutionary analysis. The doctrines of contraband and blockade
cannot stand for a moment if they are based on no principle, if they
go no further back than the commentators have carried them.[4] I
have endeavoured to show that the principle on which both are based
is the same, and is to be found in the Right of War: that both are
the inevitable consequences affecting neutral merchants who have any
relations with the enemy of the exercise of legitimate belligerent
action against him, and that they originate in, and, though varying
in the intensity of its action, are both linked with sea-power and
the efficiency of its visible agent, the Fleet. That German commerce
should have received its death-blow, that neutral merchants should have
suffered in consequence, are the natural, the inevitable results of
the command of the sea which in fair fighting in times past England has
won for herself.
But there has been introduced into the controversy an expression,
the mere mention of which seems to send men’s minds dancing with
unreason--the ‘Freedom of the Sea.’ Very dexterously, the Germans have
substituted for it another expression, the ‘Equality of the Sea.’ In
spite of the captivating simplicity of the words, it is used with
sinister intent, in the hope to redress the inequality of the hostile
Fleets.
If a Fleet is a legitimate weapon of offence and defence for nations
whose borders are on the sea, then the fortune of one aspect of war
between them must rest with the superior Fleet, and when war does come
the imagined equality of the sea, whether for belligerents or for
neutrals who cross the track of it, vanishes.
The ‘freedom of the sea’ is a cry for something as inarticulate as the
other things that the wild waves are saying. It means no more, no less,
than does the freedom of the King’s highway, which is subject to a
multitude of other rights often reducing it to nothing. The ingenuous
pacifist sees in it the fulfilment of the promise that wars shall
cease. Yet if that and all the other fanciful ideas which have gathered
round it--the ‘neutralization of the sea,’ for example--come to
prevail, wars will indeed cease, but in a way the pacifist least dreams
of. Hidden in that imagined ‘freedom,’ and the ‘rules’ which have
been suggested to ensure it, lies the power of the Strong to make one
final war upon the Weak on land, and the end of it the annihilation of
the Small Nations; for it means this, that when they are attacked they
must defend themselves without help in munitions of war from neutral
merchants across the sea.
The ‘freedom of the sea’ is not even complete in time of peace, for it
may not be set up by those who have violated the laws of the nations
which border its shores. But when war comes the ‘freedom of the sea’
must give way to the rights of war; and no one dare _now_ deny that to
declare war may be a sacred right, to decline the gage of battle an
infamy. The only freedom that remains, and even this is curtailed by
the right of search, is that of neutral merchants to carry on their
trade with one another unmolested, so long as it does not deliberately
enmesh itself in the lines and areas of battle. But it must never be
forgotten that the United States is not vindicating the simple right of
neutral nations to trade with one another untrammelled by belligerent
action. It maintains, and all the struggles of its advocacy are
devoted to establishing this proposition, that ‘innocent shipments may
be freely transported to and from the United States through neutral
countries to belligerent territory.’[5] Here, then, is the whole
matter ‘bounded in a nut-shell.’ It is admitted that a belligerent
may forcibly prevent _all_ goods going from a neutral directly to the
enemy: it is admitted that he may also prevent certain specified goods
(called ‘contraband of war’) going from a neutral indirectly (that
is, through another neutral country) to the enemy. The United States
protests that international law ends with these two propositions: that
there is no underlying principle linking the two admissions, making
them only two illustrations of a larger fact: that there is a chasm
between them that can never be bridged, even though not merely the
conditions of war, but also the constitution of armies have changed:
that international law must stand at the point it reached ten years
ago, and a belligerent stand passively by while neutral merchants
sustain the enemy with the things which give him life to continue the
fight.
The mere statement of the dispute shows that the calm of a High
Tribunal of Arbitration is the only atmosphere conducive to its just
discussion.
That right of war upon the sea, as well as that pure right of neutral
traders upon the sea, the Mistress of the Seas must steadfastly
maintain, for she holds them in trust for the nations and may not
barter them away. Above all, she must know her own mind as to what
that right is. She has spoken with full knowledge, and, as I believe,
rightly. It would be a grievous blow to her prestige if she were now
to abandon the position she has taken up. I cannot imagine such an
abandonment to be even dreamed of.[6]
* * * * *
The scheme of these articles is as follows. In the first, published
before the American Protest of the 30th of March was received, I have
dealt with the principal points in the early American Notes to Great
Britain and Germany, and have traced a process of evolution to which
all the principles of contraband and blockade, as we used to know them,
do in fact conform. In the second, after combating Mr. Norman Angell’s
project for the neutralization of the sea, I have shown how this
process of evolution warrants, by a legitimate process of development,
the practice laid down by the Order in Council. In the third, I have
applied these principles to the discussion to which the Government
yielded when it put cotton on the list of contraband.
Two questions lie altogether outside the scope of the articles. First,
the policy which, prior to the issue of the Order, refrained from
making cotton contraband. Secondly, the policy which guides executive
action in carrying out the Order. They deal simply with the Order as
it stands, not with the method of its enforcement.
* * * * *
I have, for the greater stability of my edifice, used the reinforced
concrete of the logic and arguments which Sir William Harcourt
created in the famous, but almost forgotten, ‘Letters of Historicus,’
incorporating in the footnotes more extended quotations from those
Letters. In a few instances I have added a paragraph to the articles as
they originally appeared, for the sake of greater clearness.
I trust that the manner in which I have set forth what I conceive to
be the true law of the dispute will give no offence to my friends in
the United States. I am sure it will not, for some who took part in
the Behring Sea Arbitration are still among the Minority, and they
will remember that those discussions did not want for strenuousness
with Phelps of counsel for the United States, and Charles Russell for
England.
_F. T. P._
_November, 1915._