I
_THE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS_
[_April 1915_]
The ‘Letters of Historicus’--General Position of the Neutral
Merchant--Use of Neutral Flags by Merchantmen to Escape Capture or
Destruction--First American Note to Great Britain--British Interim
Reply--The Complete Reply--First American Note to Germany--German
Reply--Evolution of the Doctrines of Contraband of War and
Blockade--Meaning of Neutrality--Contraband of War--Conditional
Contraband--Declaration of Paris as to Freedom of Neutral Goods and
of Enemy Goods under Neutral Flag--Prize Courts--The Conflicting
Rights of Neutral Merchants and of Belligerents--The Right and Duty
of Search--Doctrine of Continuous Voyages--Embargo--Blockade--The New
Policy of the British Government--Foreign Enlistment--Proclamations of
Neutrality.
The intellectual barometer stands at ‘Hazy’ on the subject of
neutrality, even in this country. In Germany it has ceased to register
anything which even pretends to be intelligent. In the United States
there are what might aptly be called cyclonic and anti-cyclonic
disturbances. If my view as to English knowledge of the subject be
questioned, I would ask my readers how often they have of late met
in the newspapers the phrase ‘duties of neutrals,’ and what answer
they have found to the inevitable query, ‘Which be they?’ Within
the last few weeks I read a contribution to _The Times_ from ‘A
Legal Correspondent,’ in which these duties were referred to in most
bewildering fashion. He said that there existed special bonds between
this country and the United States; that both have stringent Foreign
Enlistment Acts; that both agree to what are known as the ‘Three Rules’
of the Washington Treaty as to the duties of neutrals, and that both
had promised to bring these Rules to the notice of other States. This
statement was painfully misleading; the ‘Three Rules’ were agreed to
as the basis on which the Alabama arbitration was to be decided, and
related solely to the subject known as ‘Foreign Enlistment.’[7] But if
by ‘duties of neutrals’ is meant, as I presume to be the case, the
duties of neutral Governments, they can be summarised in one great
negative--to do nothing, except when they are called on to defend their
neutrality against the action of either belligerent, _inter alia_,
in the cases provided for by the Hague Convention of 1907 relating
to neutrality. So far-reaching is this universal negative that it
includes non-interference with their merchants in their dealings with
belligerents.[8] If, however, the term refers to duties of neutral
merchants, then it is inapt and misleadingly inaccurate; for the
existence of any such general duty as to cease trading, for which the
Germans are so strenuously contending, is wholly imaginary.
Fifty years ago another continent was riven with war, and there was
much talk of what a neutral might do, and might not do; and there
appeared in _The Times_ a series of letters signed ‘Historicus,’ in
which, among other things, the elementary principles of neutrality were
very strenuously and very lucidly set forth. Very strenuously, for
there was a certain M. Hautefeuille who had filled the world--like the
Dernburgs of to-day--with much unsound doctrine. Now unsound doctrine
was a thing which stirred Mr. Vernon Harcourt to the depths of his
soul, and those only who have heard him know what waves of wrath surged
up in his brain. He had the art of transferring to paper the billowy
language he was wont to use; and as you read you hear the rotund
sentences rolling onwards to swamp the frail bark of his adversary.
But he had another art: of clear thinking and lucid exposition. In the
series of Whewell Lectures which I attended at Cambridge in the year of
grace ----, of which I still preserve my notes, he seemed to make plain
the whole mystery of Public International Law. New times have produced
new teachers of the old heresies; and it is good to turn once more to
the pages of the ‘Letters of Historicus,’ for again the neutral nations
are invited to ‘upset the whole fabric of international law which the
reason of jurists has designed and the usage of nations has built up.’
To adapt his references[9] to Burke and Canning to himself, ‘I would
that we had yet amongst us his multitudinous eloquence and his poignant
wit to do justice upon this presumptuous sciolism’ of the German
Foreign Office. The world, indeed, seems still to need his teaching.
From what one hears in the market-place I gather that there is a vague
feeling in the air that our case is not _quite_ so good as we should
like it to be; that there is a mysterious crevice in our armour-joints
through which, if not the German, at least Uncle Sam has pricked us.
There is a nebulous ‘something’ about neutrality, especially about
‘neutral duties,’ which seems to preclude accurate thinking; and even
the ‘Legal Correspondent’ does not always pierce the haze. So the
student, in memory of an hour spent after lecture in his master’s rooms
in Neville’s Court, when kindly patient, and so lucidly, he expounded
to him the meaning of a difficult decision, will endeavour to weave
into a continuous whole the threads of the doctrine which he taught. It
is not that people do not know; only that they forget.
* * * * *
The neutral merchant is the centre round which the principal doctrines
of international law dealing with neutrality have gathered. It seems
strange at first that in time of war the commercial rights of a mere
money-making civilian should invariably form the subject of endless
discussions; but this civilian really holds a very important position
in the waging of war; it could not go on without him. Each belligerent
has need of him, and it is essential to each to prevent the other
from satisfying that need. To block the enemy’s communications with
the neutral merchant is one of the surest ways of ending the war. To
this end many ingenious things have been devised, and as many equally
ingenious to counteract them; and in this the merchant’s fertile
brain has materially assisted. The problem is a complex one, for each
belligerent as a buyer must strive to keep him in a good humour, but as
a fighter must do all he can to thwart him. As for the neutral merchant
himself, he is calmly indifferent to the merits of the fight; nothing
pleases him so much as to be ‘Jack of Both Sides.’ He will take all he
can get from one side and cry out for more from the other. When the
War is over we may muse philosophically on some aspects of the Protest
which the United States Government has addressed to Great Britain on
behalf of its merchants; for the present, with all its serious issues
hanging in the balance, the American Notes require careful study, for
they themselves raise an issue as serious as any which the War has
raised--whether Great Britain has been true to the principles she has
so often preached, or whether the German accusation, or the American
suggestion, that she has violated them can be substantiated; whether,
when all is over, we shall be able to say proudly that it has been War
with Honour.
_The Use of Neutral Flags by Merchantmen_
Two Notes have been addressed to Great Britain, and it will be
convenient to refer at once to the second Note, which deals with
the use by our merchantmen of neutral flags. The neutral merchant
is directly concerned with this custom of the sea, for he may have
cargo on board, and if this means of deceiving the enemy’s warships
is declared to be illegal he runs the chance of its being sent to the
bottom.
The facts which gave rise to the Note are of the simplest. On the 30th
of January two German submarines appeared off Liverpool, and, giving
the crews ten minutes to take to the boats, torpedoed and sank some
British merchant vessels. On the 6th of February the _Lusitania_,
coming up the Irish Channel at the end of her voyage from New York,
hoisted the Stars and Stripes and came safely to harbour. To these
simple facts are to be added, according to the German version, that the
Admiralty advised the master by wireless to hoist the American flag;
or had issued a secret order to merchant ships in general to hoist a
neutral flag in the circumstances. Whether these facts are accurate
or not is absolutely immaterial; but the Germans have based on them
the charge of violation of international law. It should be noted with
surprised wonder that the German Admiralty seems to have forgotten
that the _Emden_ sailed into Penang harbour flying the Japanese ensign,
and that this, added to her other disguises, enabled her to accomplish
her raid successfully.[10] The United States Government, having been
appealed to by Germany, addressed a Note to Great Britain, to the great
jubilation of her adversary; for she had just planned the infamy of
her new piracy, and the smart of the thrashing administered to herself
was somewhat mitigated by the fact that the other boy got a ‘wigging’
too. The position of the United States is so delicate, her diplomatic
officers have achieved so much, her people have done and said so many
things that have gone to our hearts, that it is impossible to be
querulous at the presentation of the Note; yet, when it is analysed, it
seems to go far beyond what was necessary to the occasion, and it has
enabled Germany to confuse, in her usual clumsy fashion, the _post_ and
the _propter_ in the sequence of events.
The Government of the United States reserved for future consideration
the legality and propriety of the deceptive use of the flag of a
neutral Power in any case for the purpose of avoiding capture; but
pointed out that the occasional use of the flag of a neutral or of an
enemy under stress of immediate pursuit, and to deceive an approaching
enemy, was
a very different thing from the explicit sanction by a belligerent
Government for its merchant ships generally to fly the flag of a
neutral Power within certain portions of the high seas which, it
is presumed, will be frequented with hostile warships. A formal
declaration of such a policy for the general misuse of a neutral’s
flag jeopardises the vessels of a neutral visiting those waters
in a peculiar degree by raising the presumption that they are of
belligerent nationality, regardless of the flag they may carry.
The Note declared that the United States would view with anxious
solicitude any such general use of its flag; it would afford no
protection to British vessels, it would be a serious and constant
menace to the lives and vessels of American citizens, and a measure of
responsibility for their loss would be imposed on the Government of
Great Britain.
The reply of the British Government was short and to the point. It
dwelt on the fact that the Merchant Shipping Act sanctions the use of
the British flag by foreign merchantmen in time of war for the purpose
of evading the enemy; that instances are on record when United States
vessels availed themselves of this facility during the American Civil
War, and that, therefore, it would be contrary to fair expectation if
now, when the conditions are reversed, the United States and neutral
nations were to grudge to British ships liberty to take similar action.
‘The British Government,’ it continued, ‘have no intention of advising
their merchant shipping to use foreign flags as a general practice, or
to resort to them otherwise than for escaping capture or destruction.’
Finally, the responsibility for the loss of neutral vessels in
such circumstances must fall on the nation which had deliberately
disregarded the obligations recognised by all civilised nations in
connexion with the seizure of merchant ships.
It is clear that the American Note had special regard to the future,
and expressed no opinion as to what had occurred in the case of the
_Lusitania_. Now she did not fly the American flag to escape capture,
but to escape the probability of being unlawfully sunk by a German
submarine; for, in view of what had already happened off Liverpool, it
is more than probable that a submarine was in lurking for her; to judge
from the German irritation at her escape, it is practically certain.
What she did, therefore, was in self-defence, and even unlawful things
become lawful when they are done to escape extreme danger. The Note
refers to the use of a neutral flag to escape capture, the reply
justifies it, and the Merchant Shipping Act sanctions it. But, seeing
that capture by the enemy is equivalent to destruction, quite apart
from the methods of the new piracy, there can be no doubt that the
principle of self-defence covers this case also. Self-defence is a
natural law which has been embodied in all legal systems, and Nature
has sanctioned it as a special plea. ‘Protective coloration’ is the
device by which she defends the weak from the unscrupulous strong;
it is ‘mimesis,’ a mimetic change, which Nature not only approves in
the case of actually hunted animals, but also and mainly devises for
those which are likely to be hunted. So the analogy is complete, and
the change of her ‘colours’ by the _Lusitania_ to escape the lurking
danger of the submarine stands justified by both natural and human law.
I prefer this explanation to the theory of the _ruse de guerre_.
By a _ruse de guerre_, or stratagem of war, I understand the adoption
of some means of deceiving the enemy in war, some device out of
the ordinary course of fighting. The old adage that ‘all is fair
in love and war’ is not strictly true, for some stratagems are not
unjustifiable in war, and some are. The _Emden_, when she rigged up a
fourth funnel, so making believe she was some other ship, resorted to
a legitimate stratagem which had unfortunate results for our Allies’
ships in Penang harbour. The German soldiers who put on our dead men’s
uniforms also resort to a stratagem; but we are fastidious in our
methods of fighting, and do not admit that this is ‘playing the game’
of war. But, whether legitimate or illegitimate, these are _ruses de
guerre_; and the term is hardly applicable to a stratagem adopted by
a non-combatant to avoid an unlawful trap set by the enemy for his
destruction.
_The First American Note to Great Britain_
I pass now to the more serious matter of the Note of friendly protest
of the 28th of December, which was an amplification of one already
presented on the 7th of November. It opens with the declaration that
the present condition of the trade of the United States, resulting
from frequent seizures and detentions of cargoes destined to neutral
European ports, has become so serious as to require a candid statement
of the view of the United States Government that the British policy is
an infringement of the rights of its citizens, and denies to neutral
commerce the freedom to which it is entitled by the law of nations. An
improvement had been confidently awaited on account of the statement
of the Foreign Office that the British Government ‘were satisfied with
guarantees offered by the Norwegian, Swedish, and Danish Governments
as to the non-exportation of contraband goods when consigned to named
persons in the territories of those Governments.’ But although nearly
five months had passed since the War began, it was a matter of deep
regret to find that the British Government
have not materially changed their policy and do not treat less
injuriously ships and cargoes passing between neutral ports in the
peaceful pursuit of lawful commerce which belligerents should protect
rather than interrupt. The greater freedom from detention and seizure
which was confidently expected to result from consigning shipments to
definite consignees rather than ‘to order’ is still awaited.
The general principle is then laid down that, ‘seeing that peace, and
not war, is the normal relation between nations,’
the commerce between countries which are not belligerents should
not be interfered with by those at war unless such interference is
manifestly an imperative necessity to protect their national safety,
and then only to the extent that it is a necessity.
But articles on the list of absolute contraband consigned to neutral
countries from America have been seized and detained ‘on the ground
that the countries to which they were destined have not prohibited
the exportation of such articles.’ Italy had prohibited the export of
copper, and shipments to Italian consignees or ‘to order’ cannot be
exported or transhipped; copper can only pass through that country if
it is in transit to another country. Yet the British Foreign Office had
‘declined to affirm that copper shipments to Italy will not be molested
on the high seas.’
In the case of conditional contraband there is a presumption of
innocent use when it is destined to neutral territory; yet the British
authorities had seized and detained cargoes without
being in possession of facts which warranted a reasonable belief that
the shipments had in reality a belligerent destination as that term is
used in international law. Mere suspicion is not evidence, and doubts
should be resolved in favour of neutral commerce, not against it.
Cargoes had, in fact, been seized ‘because of a belief that, though
not originally so intended by the shippers, they will ultimately
reach’ the enemy. A consignment of conditional contraband shipped to a
neutral port does not raise a presumption of enemy destination; such
a presumption is directly opposed to Lord Salisbury’s statement, made
during the South African war, as to foodstuffs (equally applicable
to all conditional contraband) which, ‘though having a hostile
destination, can be considered as contraband only if they are for
the enemy forces. It is not sufficient that they are capable of
being so used. It must be shown that was in fact their destination
at the time of their seizure.’ As to concealed contraband, it is
conceded that there is a right to detain neutral ships when there is
sufficient evidence to justify belief that contraband articles are
in their cargoes; but the ships cannot be taken into port and there
detained ‘for the purpose of searching generally for contraband, or
upon presumptions created by special municipal enactment which are
clearly at variance with international law and practice.’ Many of the
industries of the United States are suffering ‘because their products
are denied long-established markets in European countries which, though
neutral, are contiguous to the nations at war.’ The effect on trade
is not entirely cured by reimbursements for damages suffered when an
enemy destination has not been established; ‘the injury is to American
commerce as a whole through the hazard of the enterprise and the
repeated diversion of goods from established markets.’
Resolved into its simplest expression, the complaint is a criticism of
the way in which the doctrine of ‘continuous voyages’ has been applied
by the British Government; but there is also a veiled criticism of the
doctrine itself; and, by way of further complaint, it is pointed out
that the embargoes which have been declared in certain countries have
proved insufficient to prevent the doctrine being applied. As to the
principle asserted that doubts are to be resolved in favour of neutral
commerce, it has no warrant in common sense, for it puts a premium on
the neutral merchant’s ingenuity, an ingenuity which has itself given
rise to the doctrine of ‘continuous voyages.’ Seeing that commerce is
in the balance against a nation’s existence, the doubt must obviously
be resolved in favour of the more important consideration. The Note is
also open to the general criticism that it is based on the position
of the vendor and ignores the purchaser. But the true criterion of
destination must often be found in the intentions of the neutral
purchaser of which the neutral vendor may be ignorant.
An interim reply was sent by the British Government on the 7th of
January. It begins with a cordial concurrence in the general principle
that a belligerent should not interfere with trade between neutrals
unless such interference is necessary to protect the belligerent’s
national safety, and then only to the extent to which this is
necessary; with this qualification, however, that
we shall endeavour to keep our action within the limits of this
principle, on the understanding that it admits our right to interfere
when such interference is, not with _bona-fide_ trade between
the United States and another neutral country, but with trade in
contraband destined for the enemy’s country, and we are ready,
whenever our action may unintentionally exceed this principle to make
redress.
The figures showing the export of copper from the United States in
1913 and 1914 to Italy, Sweden, Denmark, and Switzerland (‘countries
which, though neutral, are contiguous to the nations at war’) are then
compared, and their astonishing increases duly noted. The conclusion
is very clear.
With such figures the presumption is very strong that the bulk of the
copper consigned to these countries has recently been intended not
for their own use, but for that of a belligerent who cannot import it
direct.
Granted the soundness of the American proposition, the British case
falls within it; the ‘imperative necessity for the safety of the
country’ has arisen. As to concealed contraband the case is even
clearer. Cotton is not on the list of contraband. But information has
reached the Government that ‘precisely because we have declared our
intention of not interfering with cotton, ships carrying cotton will
be specially selected to carry concealed contraband; and we have been
warned that copper will be concealed in bales of cotton.’ For this
there is only one remedy: the cargo must be examined and the bales
weighed; further, this cannot be done at sea, therefore the ship must
be brought into port. The general justification of the action of the
British Government is couched in these weighty words, which go to the
foundations of the whole law of contraband and the right of search:
‘We are confronted with the growing danger that neutral countries
contiguous to the enemy will become, on a scale hitherto unprecedented,
a base of supplies for the armed forces of our enemies and for
materials for manufacturing armament.... We endeavour, in the interest
of our own national safety, to prevent this danger by intercepting
goods really destined for the enemy, without interfering with those
which are _bona-fide_ neutral.’
The extraordinary procedure adopted by the United States Government of
_prohibiting_ the publication of manifests within thirty days after
the departure of vessels from American ports, obviously increased the
difficulties of the British Government in exercising its right of
search even in the most ordinary circumstances. If I am right in my
view that the duty of neutrals is to do nothing, for the simple reason
that any action may be of assistance to one of the belligerents, it
must be confessed that this order comes perilously near to a breach of
neutrality.
The reply deals also with the seizure of foodstuffs, but it is
unnecessary, in view of subsequent action taken in regard to them, to
refer to this part of the document. It also mentions a somewhat unusual
complaint, not included in the American Note, of our own embargo on
rubber, imposed in consequence of a new trade in exporting rubber
from the United States in suspiciously large quantities to neutral
countries, which had sprung up since the war. The complaint is not very
intelligible, because it looks at embargo from the wrong point of view.
The right point of view is explained later in this article.
The full reply of the British Government was dated the 10th of
February. It contained the very important declaration that our action
against neutral vessels ‘has been limited to vessels on their way to
enemy ports or ports in neutral countries adjacent to the theatre of
war, because it is only through such ports that the enemy introduces
the supplies which he requires for carrying on the war.’ In other
words, the importance of the doctrine of ‘continuous voyages’ at the
present time is emphasised; and its necessity is demonstrated by
a further review of trade statistics, which led to the inevitable
conclusions ‘that not only has the trade of the United States with the
neutral countries in Europe been maintained as compared with previous
years, but also that a substantial part of this trade was, in fact,
trade intended for the enemy countries going through neutral ports by
routes to which it was previously unaccustomed.’
But even more important is the opinion deliberately expressed that
international law, like every other judge-made law, is a live body of
principles which can and must keep abreast of the times. Its rules
are not arbitrarily devised as occasions arise, but are based on
principles which have developed with the progress of the world. Any
apparent changes in the law which Great Britain has introduced are not
arbitrary inventions which have in view merely the crushing of Germany,
but are justified by well-known principles applied to new conditions.
The process of adaptation is no new one. The advent of steam-power had
a notable influence on the development of the law, for the facilities
introduced by steamers and railways, while they simplified the task
of the neutral merchant in contraband, had enormously magnified the
difficulties of the belligerent.
The question in issue can be stated in almost primitive fashion. Are
the rules which governed the rights of belligerents when there were
no railways, to govern them when the transit of contraband over the
frontier of a neutral and a belligerent State has been made so easy?
The answer is not an absolute negative; it is that the old principles
are living principles and are capable of extension to meet the new
occasions.
But to explain the reasons for a step which has already been taken
and to find sound reasons for a step which has to be taken are two
different things. The first requires reasoning power, the second
imagination; and I find this in the position boldly taken up and
courageously insisted on, that the growth in size of ocean liners has
rendered a further amplification of the old rules necessary. They must
be brought into port for examination.
The American loves the cut and thrust of argument, and must at once
have acknowledged that the reference to the fact that the doctrine of
‘continuous voyages’ originated with the Judges of the United States
was not a _tu quoque_, but a brilliant illustration of the principle of
development of the law. It is abundantly clear from every paragraph of
this remarkable reply that this doctrine has become the one principle
worth fighting for now, for our national safety depends on it. And
the American will appreciate the delicacy of the compliment which can
find no stronger arguments than those used by the Judges of the United
States Prize Courts when they established it.
The earlier American Note of the 7th of November had contended that
‘the belligerent right of visit and search requires that the search
should be made on the high seas at the time of the visit, and that the
conclusion of the search should rest upon the evidence found on the
ship under investigation, and not upon circumstances ascertained from
external sources.’ But the major premiss is that the actual destination
of the vessel to the neutral port may be merely a cloak for the real
destination of the cargo to the enemy; and the citation from the
judgment in the case of the _Bermuda_[11] is a complete answer:
The final destination of the cargo in this particular voyage was
left so skilfully open ... that it was not quite easy to prove,
with that certainty which American Courts require, the intention,
which it seemed plain must have really existed. Thus to prove it
required that truth should be collated from a variety of sources,
darkened and disguised; from others opened as the cause advanced,
and by accident only; from coincidences undesigned, and facts that
were circumstantial. Collocations and comparisons, in short, brought
largely their collective force in aid of evidence that was more direct.
To introduce the rigid rules of evidence necessary to a common-law
action in a question which is not a lawsuit at all, but an inquiry,
would obviously cripple the effectiveness of the doctrine of
‘continuous voyages’; the occasions with which that doctrine deals have
by force of circumstances become the most important source of supply
of those commodities which a belligerent must at all hazards prevent
his enemy obtaining. And if we go back to the root-principle, that the
whole law and every part of it depend on the right of self-defence, no
stronger argument is necessary to justify the principle laid down in
this case, nor for the provisions of the Order in Council of the 29th
of October, which throw the burden of proof of his innocence on the
neutral owner of contraband.
_The First American Note to Germany_
I now come to the Note to Germany of the 12th of February, delivered
in consequence of the notification of her under-sea policy, and for
which ‘Warning’ is the only appropriate term. The statement of the
principles set at defiance is introduced by the satirical formula ‘It
is unnecessary to remind,’ the whole object of the Note being to remind
the German Government that the interference with the freedom of the sea
is limited to search and blockade, and that in the absence of effective
blockade the belligerent nationality or contraband character of the
cargo must be determined before a vessel may be destroyed.
To this Note came the German reply which set forth England’s iniquities
and violations of international law, which were in startling contrast
to the scrupulous observance of ‘valid international rules regarding
naval warfare’ by Germany. There is a complacent reference to the
American Note to Great Britain of the 28th of December, which sets out
the details of our iniquities ‘sufficiently, though not exhaustively’;
but the main interest of the document is its method of dealing with
the duties of neutral States towards Germany.
Neutrals have been unable to prevent the interruption of their
commerce with Germany, which is contrary to international laws.
Germany is as good as cut off from her overseas supply by the silent
or protesting toleration of neutrals not only in regard to such
goods as are absolute contraband, but also in regard to such as,
according to the acknowledged law before the war, are only conditional
contraband or not contraband at all. Great Britain, on the other hand,
is, with the toleration of neutral Governments, not only supplied with
such goods as are not contraband or only conditional contraband, but
with goods which are regarded by Great Britain, if sent to Germany,
as absolute contraband--namely, provisions, industrial raw material,
etc.--and even with goods which have always indubitably been regarded
as absolute contraband.
There follows a reference ‘with greatest emphasis’ to the enormous
traffic in arms which is being ‘carried on between American firms and
Germany’s enemies’; after which come two sentences most typical of
German occultness:
Germany fully comprehends that the practice of right and toleration of
wrong on the part of neutrals are matters absolutely at the discretion
of neutrals and involve no formal violation of neutrality.... If it
is the formal right of neutrals to take no steps to protect their
legitimate trade with Germany, and even to allow themselves to be
influenced in the direction of conscious wilful restriction of their
trade, on the other hand, they have a perfect right, which they
unfortunately do not exercise, to cease contraband trade, especially
in arms, with Germany’s enemies.
The involutions of these astonishing sentences are worthy of the White
Queen at her best, and it is quite a difficult exercise to arrive at
their meaning. So far as I have been able to get at it, it is something
like this:--Trade is free; you neutral merchants have a right to trade
with Germany as with Great Britain; why don’t you? That would be the
‘practice of right.’ Germany has as much right to have you trade with
her as Great Britain has; why do you deny her that right? You allow
yourselves rather ‘to be influenced in the direction of conscious
wilful restriction’ (in other words, you submit to having your cargoes
seized by Great Britain). Of course you have the right to take no
steps to protect your legitimate trade with Germany, and you take none
(in other words, you refuse to resist the seizures of your cargoes by
force); that is ‘the toleration of wrong.’ And so you cease to trade
with Germany. But you have also a perfect right to cease trading in
contraband (especially in arms) with Great Britain. Why don’t you? In
her case you do not allow yourselves ‘to be influenced in the direction
of conscious wilful restriction.’ To all of which the neutral merchants
reply: When you begin to make an appreciable attack upon our trade with
Great Britain and seize our cargoes, then you may be sure that we shall
be influenced ‘in the direction of conscious wilful restriction’ of
that trade also. But until that time arrives, we regret that we cannot
take the risk of having to run the gauntlet of the British Fleet. In
all seriousness these mysterious sentences mean no more than that
Germany has lost such influence upon the sea as she ever had, and the
neutral merchant has made a note of it and governs himself accordingly.
Therefore the traffic in arms, in spite of her pathetic protests, must
go on.
_THE EVOLUTION OF THE DOCTRINES OF CONTRABAND OF WAR AND BLOCKADE_
So much for the Notes and the Answers, and I pass to the realm of
international law.[12] In a recent debate in Parliament a noble Lord
suggested that, in view of German disregard of it, we need not be ‘too
fastidious’ in our application of its principles.[13] Even at the best
of times, before war shook things to their foundations, the layman was
disposed to look on it as a thing of shreds and patches. I am sure
he would be surprised to hear that the principles are coherent, and
that there is a thread of simple common-sense running through all the
various doctrines. The fate of the Empire depends on the action which
the Government takes on these important questions, its honour on this
action being strictly in accordance with the law which the nations have
agreed to. I make no apology, therefore, for treading once more the
well-beaten track, for I take it that it is the business of the good
citizen to know what he is talking about, and in order to help him I
shall begin at the very beginning. And the beginning is War.
_The Meaning of Neutrality_
At the outbreak of war the nations are divided into two classes: those
that are fighting and those that are not. To give them their scientific
names, they are belligerents and neutrals. With the laws of war I do
not concern myself, but only with those principles by which neutrals
are supposed to govern themselves in order to avoid being swept into
the vortex.
The only means by which this most desirable object can be achieved is
by steadfastly bearing in mind the natural consequence of meddling
in other people’s frays. It gives rise to the very simple maxim ‘He
who joins himself to my enemy makes himself my enemy and may be
treated as such.’ For the world’s peace the doctrine ‘He that is not
with me is against me’ finds no place in the maxims of nations. Now
there is a root-principle of neutrality, and if it is once let go all
the subordinate principles will fly off and become isolated bodies
careering through intellectual space, and doing an incalculable amount
of damage. This principle is, that neutrality is a state appertaining
to the Governments of the non-belligerent countries, and to the
Governments alone. Azuni says[14] that ‘the state of neutrality is not,
nor can be, a new state, but a continuation of a former one, by the
Sovereign who has no wish to change it.’ But neutrality has nothing
whatever to do with the individual, and all the puzzles which confuse
the public mind arise from the fact that the word ‘neutral’ is applied
indiscriminately to Governments and to individuals. The importance of
appreciating this is manifest, for if it is unsound the German case,
in which the contrary doctrine appears and reappears over and over
again, is right; if it is sound that case tumbles to pieces. It is
the persistence with which the German Foreign Office has dragged the
opposite contention in by the heels on every possible occasion which
makes it so necessary to insist on the recognition of this principle.
The burden of its reply to the United States, the condition on which
Germany will abandon its evil under-water practices, is that this
principle should be given up, and the neutral trade in arms with its
enemies declared illegal. If it could be thought for a moment that the
United States was likely to be beguiled into abandoning it, then the
peace of the world would indeed be in jeopardy. But, unfortunately for
the Germans, the Americans know full well what the principle means, and
the place it holds in the international system, for them to give even
the slightest hint that this is possible.
What, then, does neutrality mean? That the Government of a
non-belligerent State must do nothing to assist either belligerent,
by providing him with arms, or ships, or men, or money. It is not
difficult to understand why neutrality is not applicable to the
individuals of the non-belligerent States. Nations subsist by
international commerce, and there is no reason why, because two of
them go to war, all their trade with the others should be declared
illegal.[15] Therefore we get at once to this axiom, that war does not
affect neutral trade with either belligerent, but the merchants in
neutral countries are entitled to carry on business with them. And so
the neutral merchant makes his first appearance on the scene.
_Contraband of War_
But to adopt the language of the day, _Krieg ist Krieg_; and if the
neutral merchant has rights so also have the belligerents, and the
doctrine of contraband of war gives expression to them, though few
doctrines have been so loosely put into words. I think I am fairly
stating the prevalent and mistaken opinion when I put it thus: that
it is a breach of neutrality to trade in contraband, and that it is
the duty of a neutral State to prevent its subjects from so trading.
The Germans, in insisting on this popular idea, are juggling with the
word ‘neutrality,’ and they do so in a way which is almost pathetic;
yet their version of what they are pleased to call ‘true neutrality’
is so near to plausibleness that I must be at pains to elaborate the
real principle. A belligerent has a perfect right to apply the maxim
‘Who helps my enemy becomes my enemy’ to the neutral merchant. But
seeing that he is an unarmed civilian he cannot be made to fight.
The remedy against him is therefore confiscation of his goods. The
special way in which the merchant can help the enemy is by supplying
him with munitions of war and other means of carrying on the fight. In
order that there may be no mistake a more particular list of things
which help the enemy is made out, called ‘Contraband of War.’ Now the
belligerent has no right, much less any power, to prevent the merchant
from selling these things to his enemy; but he gives him fair warning
that if he sends them by sea cruisers will be on the look-out for his
vessels, and they will be detained and searched and the contraband
cargo seized. If the merchant turns to his Government and invokes its
protection, talking about the ‘freedom of the sea’ and the ‘common
highway of the nations,’ he will get for only answer, ‘The threat is
justified and I cannot help you. You are assisting the enemy and must
take your chance. I cannot prevent you taking that chance, nor can I
order you to forbear, for then I should be interfering in favour of
the other belligerent, and that would be a breach of neutrality on my
part. All I can do for you is to see that you get fair play if you
are caught, and proper damages if you are innocent.’ So now we get
to the law in its first shape: the neutral merchant is free to carry
on his trade with either or both belligerents to any extent, in arms
or in anything else; but if he trades in contraband of war he takes
the risk of losing his cargo. The justification for the rule can be
put in simplest language. The belligerent has obviously no right,
merely because he is at war, to order neutral merchants not to carry
contraband to the enemy, nor even to expect that they will not. Neither
can he insist that the neutral merchant’s Government should intervene
on his behalf, and so commit a breach of neutrality towards the other
belligerent.
* * * * *
Certain subsidiary questions arise at this point. First, the familiar
distinction between absolute and conditional contraband. This follows
in direct sequence from what has already been said. The belligerent
is not fighting the civil population, but only the enemy Government
and its forces. This compels him to interfere with neutral trade in
everything that enables that Government to maintain its forces. But how
to draw the line between things destined for the civil population and
those destined for the forces, for things destined for the civilian may
be serviceable to those forces, and may, in fact, be used by them.
The broad principle governing conditional contraband was stated by
Lord Salisbury in the _dictum_ as to foodstuffs already referred to.
This principle was adhered to by us during the early months of the
War, and was expressly referred to as having guided our action in Sir
Edward Grey’s interim reply, of the 7th of January, to the American
Note. But the War has revolutionised many ideas, and among them those
which had led to the adoption of this principle by Great Britain in
the face of the opposing contentions of other countries in the past,
notably France and Germany. In his final reply to the Note, sent on the
10th of February, Sir Edward Grey frankly stated that ‘in the absence
of some certainty that the rule would be respected by both parties to
this conflict, we feel great doubt whether it would be regarded as an
established principle of international law.’ Further, he pointed out
certain new features in the circumstances in which the War was being
waged which tended to show that an adherence to the old principle
would be an unjustifiable restriction on our power of striking the
enemy--(_i_) the existence of an elaborate machinery for the supply of
foodstuffs for the use of the German army from overseas; (_ii_) the
practical disappearance of the distinction between the civil population
and the armed forces of Germany; (_iii_) the power taken by the German
Government to requisition food for the use of the army, which rendered
it probable that goods imported for civil use would be consumed by the
army if military exigencies required it.
I confess that there are many considerations which challenge the logic
of the distinction between absolute and conditional contraband, and
give it more the character of a humanitarian concession. It introduces
a new bone of contention between belligerents and neutral traders,
and it opens up the grave danger of concealed contraband in cargoes
which are themselves innocent: the concealment of copper, for example,
in bales of cotton. In view of the more rigorous rule of blockade
where the distinction disappears, it seems more in the nature of a
preliminary measure in the process of throttling the enemy; the first
turn of the screw, and a suggestion of sterner measures which are in
store.
* * * * *
It is important to note that the determination of what is contraband,
what absolute and what conditional, is left to each belligerent.
Seeing that no law is possible on the subject, that agreement has
got no further than the unratified Declaration of London,[16] and
that it could not be for the enemy to decide, there is no one but the
belligerent left. But it rests on a better reason. Each belligerent is
master of his own fray; he can direct the attack at his own discretion,
and can strike his blows where he pleases; and if we bear in mind
what he _could_ do, the declaration that some things shall only be
contraband if they are destined for the enemy’s forces is clearly a
reservation of strength rather than an expenditure of force. There is
no rule which imposes half-measures on any belligerent; he may exert
all his strength and destroy or seize all his enemy’s property if he
is able; the principle of blockade expressly provides for it; the only
thing that is required of him is that, until he proceeds to extremes,
he must be careful how he interferes with neutral property.
* * * * *
Another point requires explanation. Of course all enemy ships upon
the seas are lawful prize. But it strikes one at once that here is a
departure from the principle that you do not make war upon the civil
population, for merchant ships are civilian property. The neutral
merchant has, however, been looked after, for the Declaration of Paris
has proclaimed that ‘neutral goods, with the exception of contraband
of war, are not liable to capture under enemy’s flag.’ But in the
converse case, it would not seem reasonable that enemy property in
neutral ships should escape capture. The Declaration of Paris, however,
steps in with the arbitrary rule that ‘the neutral flag covers enemy’s
goods, with the exception of contraband of war.’ It cannot be said
that this rule has done much to safeguard the ‘freedom of the sea’
for neutral vessels, for there is no doubt that guns consigned to
Germany discovered on an American ship on a voyage from Galveston to
Pernambuco would be lawfully seized; and as the guns may be seized the
vessel may be detained and searched. But practical considerations work
in favour of the neutral merchant. Not all the hosts of the Allied
Fleets would be sufficient for the stupendous work which would be
involved in putting this right into practice; therefore good sense
has decreed that the destination of a ship to an enemy port shall be
adopted as the practical working factor in its application, at least
in the case of conditional contraband. But this has engendered the
idea, which certainly is no part of the rule in its naked simplicity,
that neutral ships sailing to neutral ports can carry enemy cargoes of
contraband with impunity. Enemy destination is supposed alone to afford
a presumption that there is contraband for the enemy on board; but if
there were any doubt that the idea is erroneous, the words ‘whatever be
their destination,’ in a judgment of Lord Stowell’s, to which I shall
presently refer, must dispel it.
* * * * *
I have talked of the belligerent right of seizure. But civilised
nations, recognising that in the most elementary statement of the case
not all neutral cargoes even with an enemy destination are liable to
seizure, have realised the necessity of establishing a tribunal by
which this question of liability and consequent confiscation can be
decided. With the right of some cargoes to escape there came into
being at once the duty of withdrawing the decision from the summary
process which the sailor would inevitably adopt. The question of
liability might be a complicated one of fact: law might be involved: a
Court was essential. But as to its constitution there were only three
alternatives: enemy judges, obviously impossible; neutral judges,
or an international Court, not very practicable; there remained
nothing but judges of the belligerent country. Hence the anomaly of
the Prize Court sitting in the seizing country’s territory, presided
over by judges of that country. An anomaly, because it is contrary to
the elementary rule that no man shall be a judge in his own cause;
yet the judgment of a Prize Court is a judgment _in rem_; it passes
property, and is accepted as binding against all the world by the
Courts of all other countries. There have been in the past complaints
of the decisions; sometimes they have been followed by diplomatic
representations. But in these times when--I imagine for the first
time in history--a civilised Government has been deliberately charged
with having recourse to lying, it surely is a bright spot in the
international horizon to think that the system of Prize Courts has
produced judges who, as the world has recognised, have been among the
greatest.
* * * * *
But the detention of neutral ships at sea, and the seizure of the
contraband that they carry to the enemy, can be put much higher than a
mere belligerent right; nor does it spring solely from the vindictive
principle that the neutral aiding the enemy becomes an enemy; it is
based on the supreme right of self-defence. It is the inevitable
counterpoise to the right of the neutral merchant to continue trading,
even in contraband, in spite of war. The importance of this trading
right to the neutral merchant is the measure of the importance of this
defensive right to the belligerent.
The right of the neutral merchant was put on the large commercial
ground by Mr. Huskisson: ‘Of what use would be our skill in building
ships, manufacturing arms, and preparing instruments of war, if equally
to sell them to all belligerents were a breach of neutrality?’[17] But
it can be put on a still larger ground. Without it the small nations
would go to the wall. If there were such a doctrine as Germany now
contends for, a great country with unlimited resources could speedily
annihilate all the weak nations one after the other. There is no such
doctrine as that when war is declared the warring nations are to fight
it out with their own resources only. It is not the duty of neutral
merchants to keep the ring and let the best man win. Sentiment does
not come into the question. The neutral merchant may serve that side
which he earnestly desires should win; but the other belligerent has
the extreme penalty of confiscation in his hands, and sentiment must
inevitably fade into the background.
The conclusion of the whole matter is that the two great war doctrines
are, the right of the neutral merchant to trade in contraband, and
the right of the belligerent nations to seize his cargoes. Combined,
they make the simple principle that the neutral merchant may supply
contraband to either side subject only to the risk of seizure by the
other. ‘The right of the neutral to transport,’ says Kent, ‘and of the
hostile Power to seize, are conflicting rights, and neither party can
charge the other with a criminal act.’[18]
_The Right and the Duty of Search_
But the principle of seizure is still in a very crude state; and seeing
that all cargoes destined for the enemy are not liable to seizure,
and that for practical reasons it is neither possible nor advisable
to bring in every cargo for adjudication in the Prize Courts, a
supplementary right has been devised, known as the ‘right of search.’
It is the first step in the seizure, and, on the one hand, affords
the belligerent an opportunity of letting non-contraband cargo go
free; on the other hand, it gives the owner of the cargo an immediate
opportunity of proving its innocent character. The right of search is
often stated as an independent right, but it is in reality secondary to
the right of seizure, and references to it obviously apply equally to
the right of seizure. As to its unlimited nature I need do no more than
quote the well-known words of Lord Stowell in the case of the Swedish
convoy.[19] It is incontrovertible
that the right of visiting and searching merchant ships upon the
high seas, whatever be the ships, whatever be the cargoes, whatever
be their destination, is an incontestable right of the lawfully
commissioned cruisers of a belligerent nation.... This right is so
clear in principle that no man can deny it who admits the legality of
maritime capture, because if you are not at liberty to ascertain by
sufficient inquiry whether there is property that can be captured, it
is impossible to capture.
On this another rule has been grafted which is suggested by the
enunciation of the law as to the right of search. That right _must_ be
exercised for the very same reason that the right has been allowed, for
otherwise you do not know whether you have the right to seize. From the
_right of search_ has therefore developed the _duty to search_; and
it is the omission to recognise this duty that has plunged the German
Admiralty into its piratical career.
_The Doctrine of Continuous Voyages_
But the heart of the neutral merchant is desperately ingenious,
especially when his country is contiguous to the theatre of war, and no
sooner had he obtained the inch to which practical considerations made
him appear to be entitled than he developed it into an ell of his own
imagining. He argued thus: A neutral vessel bound to an enemy port is
liable to detention, because the presumption is that she has cargo for
the enemy, and that her cargo is probably contraband; the presumption
also is that cargoes on board a vessel bound for a neutral port are not
destined for the enemy, even though they may be contraband; nothing
easier than to bring them across the sea in a neutral vessel with a
neutral destination; all that remains to be done is to pass them on
to the belligerent, either transhipping them into another vessel and
sending it down the coast, out of the way of the attentions of the
enemy’s cruisers, or better still, if the neutral and belligerent
countries are contiguous, by rail across the border. And the best of
the plan is that the shipper on the other side of the water, say some
innocent merchant in copper in the United States, need know nothing
about it, so that if by chance the cargo does get seized he will do all
the shouting.
With this problem, devised in some such human fashion, the United
States was faced during the Civil War, and the Judges settled it in
characteristic and logical manner. They discovered the doctrine of
‘continuous voyages.’ It is nothing more than the simple application
of elementary principles, and is arrived at by the elimination of
the presumption of innocence which the voyage to the neutral port
raised. All presumptions may be rebutted, and this one manifestly.
‘Be the destination what it may,’ the right of search existed; the
presumption had only been allowed to grow because it was convenient.
If goods destined for the enemy reached him by way of a neutral port,
that port was only an intermediate destination; the ultimate consignee
was the enemy, and there was a continuous voyage to him from the
port of shipment. Therefore the seizure, and therefore the search,
were justified, and could not be denied merely because ‘the final
destination of the cargo was left so skilfully open.’
But the neutral merchant’s wits are sharpened by much profit in
prospect; he is no simpleton, and a consignment of, let us say, copper
from the United States is not likely to be addressed ‘Herr Krupp von
Bohlen, Essen, _viâ_ Rotterdam, by kind favour of Messrs. Petersen &
Co.’ Hence a most ingenious argument conducted on the principle ‘You
shut your eyes, I’ll keep mine open.’ A consignment ‘to order’ (as
‘to the order of Messrs. Petersen & Co.’) may perhaps be legitimately
seized, because the words do not clearly indicate the Dutch firm to
be the real purchasers; but certainly not a consignment to a specific
person (as to Messrs. Petersen & Co., Rotterdam). The sophistry is
obvious; it does not negative the possibility that Messrs. Petersen &
Co. are either acting as buyers for, or have imported the goods with
the intention of passing them on to, Herr Krupp of Essen. And with the
help of trade statistics the possibility may be discovered to be a
probability.
_Embargo_
And now the pendulum swings back, and in the doctrine of embargo the
really neutral merchant comes into his own. ‘Embargo’ is the action
taken by a neutral Government in regard to goods which have been
declared to be contraband by one or other of the belligerents; and
the point to be emphasised is that it springs directly out of the
doctrine of ‘continuous voyages.’ In order to prevent neutral ships
destined to its ports with goods which one of the belligerents treats
as contraband being detained and searched at sea, it prohibits the
export of those goods from its own ports. The embargo satisfies the
belligerent that these goods will not go out of the neutral country,
and therefore will not get directly or indirectly into the hands of
the enemy; he therefore feels justified in letting those ships go
free, for the doctrine of ‘continuous voyages’ cannot apply. Now the
reason for the embargo is that the merchants of the neutral country
require the commodity for themselves. Suppose, for example, that
Spanish merchants require copper for their own use; then in order to
ensure cargoes of copper coming direct to Spanish ports without being
interfered with at sea by the search of belligerent cruisers, the
Spanish Government might put an embargo on copper: that is to say,
might prohibit its export. There could be no better evidence that the
Spanish merchants were importing the copper for their own trade, and
that none of it would get through to the enemy. I can therefore best
describe an embargo thus: It is action taken by a neutral Government to
protect those of its merchants who do not desire to engage in trade in
contraband from the consequences which would result from the action of
those who do.
There is only one point in connexion with this doctrine which requires
attention. Is the action thus taken by the neutral Government a breach
of its neutrality to the other belligerent? For, undoubtedly, it does
act favourably to the belligerent who has declared the goods to be
contraband. The answer is simple. Once admit the strict logic of the
doctrine of ‘continuous voyages,’ it follows that an embargo is a
measure neither directed against one belligerent nor imposed to favour
the other. It is simply a measure of self-defence, taken in order to
prevent the national industries from suffering from the undoubted
belligerent right of detention at sea and possible seizure.
There are other occasions in which an embargo may be resorted to, as in
the case of the embargo on rubber imported by Great Britain to which
reference has been made above.[20] That is purely a municipal question
with which international law can have no concern.
_Blockade_
And now I come to the last point of all, blockade, which is the supreme
manifestation of force at sea for the purpose of crushing the enemy.
Here all minor considerations vanish. The artificial distinction
between absolute and conditional contraband disappears; there is no
longer any free list; neutral as well as enemy cargoes are subject
to seizure, whether going to or coming from the blockaded port. The
humanitarian concession that war is not made on the civil population
finds no place; indeed, blockade derives much of its efficacy from
the pressure which the strangling process brings to bear on that
population. It has been described as a siege carried on at sea, but
under somewhat more elastic conditions than a land siege. It is a
convenient comparison, because all the outcry against its inhumanity
is silenced by the recollection of Paris in 1870, and the vision of
what Paris would have been in 1914 if the German plan had succeeded.
It is rigorous, almost brutal, but it is war, and war admits of no
half-measures which come within the code of civilisation; and this
measure, extreme though it be, has long been recognised as legitimate
warfare. Nor is there any conventional limitation as to the time when
it may be resorted to. Coming as it naturally does at the end of the
discussion to which other principles have led up, it might appear as if
custom had decreed that it should only be resorted to after all other
measures had failed. But there is nothing to prevent a war starting
with a blockade; nothing, that is to say, in the theory of the
subject, though there are any number of practical reasons which make it
improbable. I presume, however, that if a great maritime Power were at
war with a State which had only a miniature fleet, a blockade of its
coasts would be the speediest and, therefore, the most humane way of
bringing it to a conclusion. Certainly there is no rule or custom which
prevents a Power at war from putting forth its full strength at once.
The ascending scale is easier for purposes of study; the mind
grasps smaller things more easily, and they prepare the way for the
appreciation of the greater things. But it is not by a process of
logical development that we reach blockade after a study of contraband.
Blockade is treated last more conveniently because it involves the
greatest development of force against the enemy; but it would have been
more logical to have begun at the other end of the scale, starting
with the greatest exhibition of force, and letting the series of
rules emerge in diminishing strength. In view of what remains to be
said, it is of great importance to appreciate that the incarnation
of sea-power, blockade, which cuts the enemy off absolutely from the
outer world, lies at one end of the scale of what one belligerent may
do to the other, and the seizure of contraband on a neutral ship going
to an enemy port, which cuts the enemy off but partially, lies at the
other end. There can then be no difficulty in justifying what comes in
between.
But the most curious point is that it is only when we come to the
recognition of this extreme manifestation of force that we meet with
artificial rules. A blockade must be ‘effective.’ Yet this word, as
to the meaning of which in its ordinary use there can be no doubt, is
given in treaties and by the authorities a wholly artificial meaning.
Sometimes it includes the exact contrary to effectiveness, as that
‘A blockade is not regarded as raised if the blockading force is
temporarily withdrawn on account of stress of weather’[21]: during
which the adventurous skipper may run in. It is not necessary to labour
the point; but it is necessary, when measures short of ‘blockade’ have
been taken by England, that the full extent of what blockade pressure
upon neutral trade means should be understood.
In order to determine what characterises a blockaded port, that
denomination is given only where there is, by the disposition of the
Power which attacks it with ships, stationary or sufficiently near, an
evident danger in entering.[22]
A blockade [by cruising squadrons allotted to that service, and duly
competent to its execution] is valid and legitimate, although there be
no design to attack or reduce by force the port or arsenal to which it
is applied, and that the fact of the blockade, with due notice given
to neutral Powers, shall affect not only vessels actually intercepted
in the attempt to enter the blockaded port, but those also which shall
be elsewhere met with and shall be found to have been destined to such
port, with knowledge of the fact and notice of the blockade.[23]
These two quotations embody the principles of the English prize law.
Article 17 of the Declaration of London contains a modification of
them, and provides that ‘neutral vessels may not be captured for breach
of blockade except within the area of operations of the war-ships
detailed to render the blockade effective.’
* * * * *
I have come to the threshold of a subject of gravest importance,
the new policy of the British Government adopted in answer to the
‘war-zone’ declaration of Germany, and I stop. To devote to it merely
the end of an already long article would not be treating it with the
consideration which it deserves, and which the question demands.
Moreover, it would not be expedient for an ex-official Englishman
to discuss the subject controversially at present. It is sufficient
that the measure has been adopted after full and mature consideration
by the Government, that the question is political as well as legal,
and for us it must be taken to be within the legitimate powers of a
belligerent. Presently, to judge from what has already happened, there
certainly will be any amount of nonsense talked and written about it;
already the term ‘paper-blockade’ has come in handily for the making
of a paragraph, and some bold spirit has hit upon a brand-new term,
‘long-distance blockade.’ Also there has been some not very wise talk
about ‘Two wrongs not making a right.’ I would suggest to those who
feel irresistibly impelled to discuss the question that they should
omit the word ‘blockade,’ for, as we have seen, it is a pernicketty
term, and all sorts of legal niceties spring up in its train. I have
endeavoured to show that ‘blockade’ is the extreme manifestation of the
force known as sea-power against the enemy, that sea-power lies at the
root of the authority which has been given to the series of principles
governing belligerent interference with neutral trade, and that these
principles are not a mere adventitious set of rules drawn up at odd
times as wars at sea occasioned them. The principles and the rules have
resulted from the play of natural forces, exerted by the belligerents
on the one side, by the neutral merchant on the other. The rules are
not even a compromise. The clash of forces has thrown off alternating
sparks, rules recognising now the right of the one, now the right of
the other. But in the supreme display of sea-power known as ‘blockade’
we find that the right of the belligerent does, as is inevitable, take
the upper hand, and the right of the neutral disappears. And there are
two French maxims worthy of note just now: ‘_Qui veut les fins veut les
moyens_,’ and ‘_Qui peut plus peut moins_.’
* * * * *
P.S.--I must briefly refer to two questions which appear at first sight
to conflict with the principles advanced in this article--Foreign
Enlistment, and the King’s Proclamations of Neutrality.
Before agreeing with the United States as to the ‘Three Rules’ which,
as I have pointed out,[24] deal solely with ‘foreign enlistment,’
the British Government declared that they could not assent to the
contention that those rules were a statement of principles of
international law in force at the time when the _Alabama_ claims arose.
This is expressly stated in Article 6 of the Treaty of Washington.
‘Historicus,’ in one of his Letters,[25] cites some American
authorities which bear out this view. Further, he explains the true
inwardness of the Foreign Enlistment Act:--
The Enlistment Act is directed, not against the _animus vendendi_, but
against the _animus belligerendi_.
It prohibits warlike enterprise, but it does not interfere with
commercial adventure. A subject of the Crown may sell a ship of war,
as he may sell a musket, to either belligerent with impunity; nay, he
may even despatch it for sale to the belligerent port. But he may not
take part in the overt act of making war upon a people with whom his
Sovereign is at peace. The purview of the Foreign Enlistment Act is
to prohibit a breach of allegiance on the part of the subject against
his own Sovereign, not to prevent transactions in contraband with
the belligerent. Its object is to prohibit private war, and not to
restrain private commerce.
It is only when it has become the subject of agreement between two or
more States that ‘foreign enlistment’ assumes an international as well
as a municipal character. I presume that this municipal character has
not been lost by the inclusion of the duty to prevent the fitting out
or arming of vessels in Article 8 of the Hague Convention, No. 13, of
1907, relating to the duties of Neutral Powers in Maritime War.
As to the Proclamations of Neutrality, so much as recites and
reinforces the Foreign Enlistment Act need not trouble us; the King’s
loving subjects are exhorted to comply therewith. The rest of the
Proclamations amounts to no more than a warning to subjects not to do
‘any acts in derogation of their duty as subjects of a neutral Power
in a war between other Powers, or in violation or contravention of
the law of nations in that behalf’; but, as ‘Historicus’ says,[26]
‘The nature of the penalty is pointed out with equal clearness and
correctness--_viz._ the withdrawal of the King’s protection from the
contraband on its road to the enemy, and an abandonment of the subject
to the operation of belligerent rights.’ What those belligerent rights
are I have endeavoured to explain.