_THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF THE SEA’_
[_August 1915_]
The American Notes to Germany--The Protest to Great Britain against
the Order In Council--Mr. Norman Angell’s Plan for the Neutralization
of the Sea--His Threat of War with the United States--German Idea
of a ‘Free Sea’--General View of the Main Provision of the Order in
Council--Application of the Law of Vendor and Purchaser: Contracts
F.O.B.--Declaration of Paris: Free Ships make Free Goods--A
Suggested Solution of all Difficulties--Effect of the Order in
Council--American Acquiescence in a ‘Long-Distance Blockade’--Relation
between Contraband of War and Blockade--Sovereignty over Neutral
Ships--Withdrawal of National Protection from Ships carrying
Contraband of War--Right of Search no Infringement of National
Jurisdiction--Doctrine of ‘Continuous Voyages’ and the Order in
Council--Reprisals--The Orders in Council of 1807--The American
_caveat_--Criticism of Note in the ‘North American Review’--Continuing
Contracts entered into before the War.
The quality of diplomatic courtesy between the United States and
Germany is much strained, for the submarine pirates have sunk American
ships, and have drowned American citizens bound on their lawful errands
on British ships. On the 14th of May, Germany was informed for the
second time that she would be held to strict accountability for any
infringement of the rights of American citizens, whether intentional
or accidental, and in her methods of attack against the trade of her
enemies she was called on no longer to disregard ‘those rules of
fairness, reason, justice, and humanity, which all modern opinion
regards as imperative.’ On the 11th of June, the defence that the
_Lusitania_ was carrying contraband was brushed aside as irrelevant
to the question of the legality of those methods. The German reply
being evasive and justificatory, on the 23rd of July a third warning
was given: if the offence should continue unabated the action would
be treated as ‘deliberately unfriendly.’ These Notes derive their
dignity from their obvious restraint, from the measured insistence of
their words, and from the scrupulous exactitude in the statement of
the principles they appeal to. No saner judgment was ever pronounced
against a criminal, and, though a golden bridge has been offered for
retreat, they will stand against Germany as a permanent record of her
iniquity.
But a curiously paradoxical situation arises with regard to ourselves.
The very virtue of these Notes is bound to react to our prejudice; for
other neutrals may too readily assume that those same high qualities
are also to be found in the Note of the 30th of March, protesting
against the British Order in Council issued as a reply to the German
submarine attacks on merchant shipping in the ‘war-zone.’ There is
also a minute minority of our own people who have a perverse habit of
thinking that ‘after all’ we _may_ be wrong, and they will not fail to
apply their favourite doctrine in this case.
In the aftermath of the War, far-off though it be, we can already
see one question which will be insistent for solution: what effect
will it have had on international law? It is essential, if England
is to preserve her high place in the councils of the nations, that
the sincerity of her words should not be open to question through any
act which could be brought up against her of even doubtful legality.
This Protest alleges that there is no doubt as to the illegality of
our so-called blockade of Germany. With profound respect, I believe
the Protest to be unsound in its premises and inaccurate in its
conclusions, and that there is as complete an answer to it as to the
previous Notes addressed by the United States Government to this
country. But it has put a weapon into the hands of our enemy of which
he has not been slow to avail himself; it has given Herr Dernburg a
plank to dance on instead of a slack-rope; it has played upon the
imagination of Mr. Norman Angell, who has been for so long engaged in
shattering the illusions of others, and provided him with an illusion
all his own. In the May number of the _North American Review_ he has
caught some ideas hitherto floating in the air and shaped them into a
new peace-theory which he believes will be acceptable to the American
Government, and I presume, to other countries also. He has given it for
title ‘The Neutralization of the Sea.’
_Mr. Norman Angell’s Plan for the Neutralization of the Sea_
Mr. Norman Angell is a serious writer. He has detected the weak points
in what is called the ‘arbitrament of war,’ and has formulated his
indictment against it in a series of concrete propositions. The
wilderness of the world’s foolishness so re-echoed with his words
that some thought they saw the wild rose blossoming. Yet, though
the wilderness still breeds the thistle, his theories rested on a
substratum of fact, and set people thinking when he first spoke to
them. But his last excursion into the regions of the Unattainable
has no such merit; he has been busy dreaming other men’s dreams. He
foresees this contingency, which ‘English opinion has absolutely
failed to envisage,’ that at the conclusion of the War America will
see to it that ‘sea-law as it stands, and as America has accepted
it,’ is ‘changed altogether.’ He says that ‘there is in England not
the faintest realisation that the inevitable outcome of the present
contraband and blockade difficulties will be an irresistible movement
in America, for the neutralization of the high seas, or, failing that,
their domination by the American Navy.’ So much of this as relates to
England is perfectly true; there has not been ‘a line of discussion
concerning it in the Press,’ for the all-sufficient reason that it
is the ‘very coinage’ of Mr. Norman Angell’s brain, the ‘bodiless
creation’ of his ecstasy. That ‘profound conflict of policy’ which,
after unnumbered years, is to end in the transfer of the command of
the sea across the Atlantic is not ‘even being discussed in England’;
and it is therefore consoling to know that ‘it is probable that very
many Americans themselves do not realise clearly how this dispute
is developing, and how the United States will be pushed to take a
stand for a profound alteration of the entire maritime situation.’
With this the phantasy of the ‘neutralization of the sea’ might be
dismissed. It is a dangerous topic to discuss at this time, especially
in America, with so uncertain a knowledge of ‘sea-law’ as Mr. Norman
Angell displays; for others besides pacifist doctrinaires are making
great play with it to the same audience--to wit, our enemies. Yet this
advocate of peace threatens us with war if we will not accept his
great illusion--war with the United States! And in order to avoid this
conflict, ‘which certainly no one who wishes well to the two countries
would care to contemplate,’ he demands the sacrifice of every principle
on which we found our belief that Right must ultimately become Might.
I can only assume that he does not see that the result would be the
greater prevalence of the German doctrine that Might is Supreme.
We were once interested by Mr. Norman Angell’s studies in the ‘might
have been’: were even ready to agree that as ‘might be’ they were
worthy of serious consideration. But, frankly, his countrymen have
no wish that England should be the _corpus vile_ on which this new
experiment is to be tried. The Platitudinarians rejoiced when he came
over to them; but Mr. Norman Angell is too serious a student for such
company. Let him then, as other Englishmen who have attacked England
have done, recant; I will find him excellent reason. He is not too
familiar with the subject on which he has now laid profane hands. He
has been struck with the glint of a phrase, but I am sure he does not
know what the ‘neutralization of the sea’ really means. It means,
first, that the high sea is to be forbidden to men-of-war of any nation
whatsoever; secondly, that the high sea shall not be used by neutrals
for war purposes--that is, for supplying belligerents with munitions
of war: alternatively, that they should supply each belligerent alike
without interference from the other; thirdly, that their trade in
non-contraband should go on as if there were no war.
The ‘neutralization of the sea’ is therefore a convenient formula which
may be substituted for that occult paragraph of the German reply to
the American Note of the 12th of February, the meaning of which I have
endeavoured to give in my first article: that little lecture to the
American trader on the subject of ‘the practice of right,’ and ‘the
toleration of wrong.’[27]
The paraphrase of this new formula is more easy. First: wars shall
cease upon the high seas; and as ‘men-of-war’ obviously include
transports, wars will thenceforward be confined to continents;
bellicose islands will never again be allowed to participate. Permanent
peace will thus be established in part of the world; and for the rest,
seeing that you cannot expect to achieve everything at once, there must
be just one more war, in which Germany will reduce Russia to impotence,
absorb the small States, and crush France and Italy without the
interference of troublesome over-sea soldiers; after which the beatific
vision of a permanent Teutonic peace.
Secondly: with regard to so much of the formula as relates to neutrals,
the justice of it must become apparent if you introduce as a prelude
the tearful appeal so often heard of late from Berlin--‘You pray
for peace, and yet you arm our enemies to fight.’ It is unkind to
substitute for this--‘You will not let us crush our enemies in our
own way’; yet it is its exact equivalent; and reduced to a practical
proposition it means this, that when nations go to war they must fight
with their own resources, which not even the dreamiest of the Pacifists
would assent to, for then those little nations, in whose prosperity
Mr. Norman Angell so much believes,[28] would go to the wall. It would
give the strong States the power to crush them, picking their quarrel
when and how they will. But if you will not agree to this so-simple
proposition, then, for goodness’ as well as for profit’s sake, be
logical and trade with both belligerents alike; do not let yourselves
‘be influenced in the direction of conscious wilful restriction’ by so
trivial a matter as the ‘command of the sea.’ Sea-power on which it
rests must be abolished altogether, which would be a great step towards
permanent peace.
With the bearing of the ‘command of the sea’ upon the third phrase of
its ‘neutralization’ this article specially concerns itself.
All this and more lies between the extremes of Mr. Norman Angell’s
threat; either this, or the United States will take the command of
the sea into its own hands. One may reasonably doubt whether this
view commends itself to President Wilson; whether it has even entered
the minds of the ‘influential backers’ of the demand for an enormously
increased American fleet. Yet, if I may say it with profound respect,
it is only another manifestation of the fundamental misunderstanding of
the law of war which characterises the Protest itself.
Whether it be possible for the same end to be achieved by different
means, the one lawful, the other unlawful, is a problem in casuistry
which I shall not attempt to solve; but as a rough-and-ready rule of
practical life we may take it that when two people seek to achieve
equal ends they are equal to one another. Now the offensive Herr
Dernburg--I use the term in no offensive sense, for I would not exclude
myself from his Kirkwall compliment[29]--desires to forbid the sea to
English cruisers in order that American vessels may not be let or
hindered when they carry harmless ‘raw material’ to German ports. He
asserts that any domination exercised beyond territorial waters which
interferes with them ‘is a breach and an infringement of the rights
of others.’ The _Emden’s_ raids on our commerce, carefully prepared
and charted, ‘if my gossip Report be an honest woman of her word,’ two
years before the War, are sufficient to show that this new opinion has
sprung from the emergencies of the present moment. And the unoffensive
Mr. Norman Angell also desires that the English cruisers should cease
their vigil, in order that American vessels may help to complete ‘vast
commercial arrangements’ entered into by some ‘Chicago or New York
magnate’ with the German Government.
Applying then my rough-and-ready rule, Mr. Norman Angell and Herr
Dernburg, desiring to achieve the same end, cannot be on opposite
sides of the fray. Mr. Norman Angell has been beguiled by the sad
picture which the Germans have drawn of starving Germany. Starvation,
alas! is one of the weapons of war. The Germans have made full use of
it in the past; and had their plans not miscarried Paris would again
have lived on the vermin of the sewers, as it did in 1870. Mr. Norman
Angell’s memory does not run to that period; but he lives in a time
when what he conceives to be the possible result of British war policy
has become the actual policy of the invader of Belgium: almost a whole
nation ‘reduced to absolute starvation, including the women and the
children,’ by the direct action of the German Government in preventing
the distribution of American food. His vision is clouded by the pathos
of imaginary pictures; he does not see what is going on before his
eyes, and he allows himself to be blinded to the real object of all
the German manœuvring diplomacy, to which the ‘Foodstuffs’ cry is but
a convenient screen. An embargo on the export of munitions of war
from the United States to the Allies Germany will secure if she can,
by hook or crook, by fair means or foul, by argument or threat, by
cajolery or intimidation, for necessity is driving her. Her one hope of
salvation lies in getting the United States to break its neutrality,
and the accomplishment of this ignoble task has been confided to the
Bernstorffs, the Dernburgs, the Ballins, κ.τ.λ. These passionately
exhort the Government of the States to control by domestic legislation
its merchants’ commerce with the Allies, because the British Fleet in
its right of war is controlling their commerce with Germany. The German
Admiralty has substituted piracy for war on the sea; and now, powerless
to enforce its war right, it struggles to achieve the same results by
the devious process of an American embargo. To enforce their rights
of war nations sacrifice the lives of men; Germany to make good her
lost rights is willing to sacrifice a friendly State. In furtherance
of this, unconsciously I feel sure, Mr. Norman Angell has lent his
facile pen, and he threatens us with war with the United States unless
we forgo the benefits which the command of the sea has given us. If it
were possible to imagine President Wilson to acquiesce by so much as
the movement of his little finger, granting to Germany any fraction
of the indirect help she so urgently needs, then indeed clouds would
gather on the horizon--there is no half-way house between neutrality
and alliance with the enemy.[30] But we may rest assured there is no
such possibility. Before, therefore, Mr. Norman Angell further develops
his theory I would commend to his study those mighty disputations
concerning the ‘freedom of the sea’ which were held twenty years ago
between the United States and Great Britain, _quorum pars parvula
fui_. _We_ knew what we were quarrelling about. But Germany! She
tells the unlistening world that she is fighting for ‘the traditional
_mare liberum_’! What can this _parvenu_ of the high seas know of its
traditions? And for the delectation of pacifist ears this programme
has been arranged: ‘a free sea,’ which shall mean ‘the cessation of
the danger of war and the stopping of world-wars,’ and ‘the sending
of troops and war machines into the territory of others or into
neutralized ports’ is to be ‘declared a _casus belli_.’[31] From which
it appears that the proposed remedy will hardly cure the disease.
‘It is with no mere idle use of high-sounding phrase that Great Britain
once more appears to vindicate the freedom of the sea.’ Thus we spoke
in the argument in the Behring Sea Arbitration. And we may continue
so to speak with clearest conscience; for a careful scrutiny will
show that the principle of the Order in Council is new, if you will,
but in legitimate sequence from well-established doctrines, and has
sprung from them in an ordered and scientific development. Of the
American Protest which criticises it, speaking with all due respect
for the learned authors of it, it is, I venture to think, open on
its destructive side to this general remark: that it enunciates old
doctrines in their popular form without that full examination of the
underlying principles which the grave state of the world’s affairs
demands. On its constructive side, however, it is interesting and
worthy of careful study.
_General View of the Main Provision of the Order in Council_
Let us get at once a clear view of the position. England by this Order
has aimed a very vigorous blow at the heart of her enemy, but the
Government of the United States has warned her that she may not do it,
not from any humanitarian considerations, but because it would react
to the detriment of neutral merchants. It points out that there are
some principles of international law, some documents or declarations,
which stand in our way. If this be really so, then international law
sets the profit of the merchant above the life of nations. The theory
of the United States appears to be that the conduct of war is to be
governed by the interests of commerce, even if they touch those of
the belligerents. The truer theory is, I believe, that commerce, in
so far as it touches the interests of the belligerents, is entirely
subordinated to the exigencies of war. If the view of the United States
is right, then the documents and the declarations have been heedlessly
signed and made, and the power of England upon the seas has been
recklessly frittered away.
I have endeavoured in the first article to get into sharper relief than
popular notions give to it the position in which the neutral merchant
stands to a belligerent and to his own Government, and also to recall
the real meaning of neutrality. The Order in Council had at that
time been issued, but the American Protest had not been delivered. I
intimated, however, that it seemed probable that a close examination
of fundamental principles would show that the Order was abundantly
justified by them. The publication of the Protest confirms me in that
view.
And, first, I venture to contest the main doctrines on which the
criticism of the Order rests.[32] I deny that a belligerent nation
has been _conceded_ ‘the right of visit and search, and the right of
capture and condemnation’ of neutral ships engaged in unneutral service
or carrying contraband for the enemy. I deny that a belligerent nation
has been _conceded_ ‘the right to establish and maintain a blockade
of an enemy’s ports and coasts and to capture and condemn any vessel
taken in trying to break the blockade.’ On the contrary, I assert that
these are _belligerent rights_ which may be _asserted_ and exercised
against the neutral merchant whose vessels are engaged in rendering
those services to the enemy: that consequently ‘a nation’s sovereignty
over its own ships and citizens under its own flag on the high seas’
does suffer ‘diminution in times of war’ to the full extent to which
a belligerent exercises those rights: and that to this extent ‘the
equality of sovereignty on the high seas’ finds no place in war. And
I further contend that the proposition, to the establishment of which
all the argument of the Protest tends--that ‘innocent shipments may
be freely transported to and from the United States through neutral
countries to belligerents’ territory’ without risk of seizure and
confiscation--is not true when one of the belligerent Governments
has declared its intention of stopping all shipments, and has taken
effective steps to enforce that intention. If the proposition were
true in these circumstances the Order in Council would be a breach of
international law.
_Application of the Law of Vendor and Purchaser_
Before making good this position a preliminary point raised by the
Protest must be dealt with--the bearing of the Declaration of Paris
on the question. Even the learned must have been somewhat confused
by the isolated, almost casual, reference to one of its rules--‘Free
ships make free goods’; or to be more accurate, ‘The neutral flag
covers enemy’s goods, with the exception of contraband of war.’ Its
relation to the context is more than obscure, for this rule applies to
the seizure of _enemy property_, whereas the doctrines on which the
law of contraband and the law of blockade rest apply to the seizure of
_neutral property_. It is clear, therefore, that there are two very
distinct planes of thought, and we cannot step lightly from one to the
other without putting in peril the logical structure of the discussion.
‘The rules of the Declaration of Paris of 1856, among them that free
ships make free goods, will hardly at this day be disputed by the
signatories of that solemn agreement.’
Thus, and no more, the Protest. The United States is not a signatory
to the Declaration, and its final clause provides that it ‘is not and
shall not be binding, except between those Powers who have acceded, or
shall accede to it.’ But let us put this technical objection on one
side and, admitting the rule to be a generally accepted principle, see
what it has to do with the question in dispute.
The merchant promotes his trade with foreign parts by many ways, but
he never loses sight of one essential: payment for his goods. It is
true that credit is the life of commerce; but during war conditions
are changed, and while it may be that some still adhere to peace-time
customs, the ‘rumble of the distant drum’ induces others, probably
the more numerous, certainly the wiser, to ‘take the cash and let the
credit go.’ On the other hand, the purchaser’s object is to get the
goods, more especially if he is a belligerent and the goods munitions
of war: and one very sure way of obtaining possession of the document
of title to them is by paying cash or by giving some substitute which
the vendor accepts as its equivalent. Thus cash enables the wishes of
both parties to be satisfied; and the law facilitates the acquisition
of property after a sale by means of the contract for delivery of
goods ‘f.o.b.,’ free on board, under which the property passes to
the purchaser from the moment the goods are on board ship. Now it is
obvious that if the neutral merchant is wise in his generation he will,
having in view the risks ahead of him, secure payment for his goods
and get rid of them ‘f.o.b.’ Then all those troublesome questions
of seizure by belligerent cruisers and condemnation by Prize Courts
concern _him_ no longer. The goods become enemy cargoes consigned to
one of the belligerents, the vendor has got his money, and they may go
to the bottom of the deep blue sea, or into the factories of the other
belligerent, for all he cares.
Here then is the puzzle. Seeing that the law makes such ample
provision for his protection, allows him to trade in such fashion that
he can with safety and profit get rid of his troublesome property in
cargoes when he has shipped them, even in cargoes of contraband of
war, what is the meaning of all this talk about the violation of the
rights of the neutral merchant upon the high seas? They have vanished;
and even the ingenuous protests against the too strenuous application
of the doctrine of ‘continuous voyages’ lose much of their pathos when
we realise that the cargoes (of, say, cotton, copper, rubber, or even
foodstuffs) seized on their way to neutral ports may not be, need not
be if he has exercised reasonable care, the neutral vendor’s property
at all. They ought to be enemy property, or at best the property of
purchasers in ‘countries which, though neutral, are contiguous to the
nations at war’; and then the plaint should come from this side of the
Atlantic. The whole question has now taken a different aspect, and the
presumption, based on overwhelming statistics, that _these_ neutral
purchasers are acting as agents for the enemy, or are anticipating
enormous profits from sales to the enemy, is wholly justified and most
pertinent to the issue. Looking therefore at the case in the rough,
the neutral American vendor, if he has acted with common prudence,
is out of Court as a complainant. And, further, his position is
vastly different from an ethical standpoint if he has chosen to give
credit to the enemy, or to a purchaser who is probably the enemy’s
agent; still more different, almost dwindles to vanishing-point, if
he has sent the goods on the chance of ‘payment if safe delivery.’
From a purely commercial point of view, therefore, if seizures of
such cargoes are to be made the basis of complaint by the Government
as the legitimate mouthpiece of United States traders in the bulk,
the only possible ground on which it could be presented is that they
may affect trade generally; the complaint would be of ‘the injury to
American commerce as a whole,’ as it was, in fact, put in the Note of
the 28th of December.[33] But then the damage is too remote from the
alleged wrongful injury to sustain a plea. Interference with trade is
the inevitable consequence of war; the more strenuously sea-power is
exercised the greater the interference, and the command of the sea
inevitably makes the interference one-sided.
But it may, with respect, be questioned whether the allegation is
correct. The effect of war on commerce _generally_ must be judged
by its results on commerce _as a whole_; there must be a general
balance-sheet of United States trade in which the profits of some
merchants must be set against the losses of others. Is it quite certain
that American commerce as a whole has not derived much benefit from
the War rather than suffered serious loss? There seems to be some
confusion of the particular with the general. In regard to this ground
of complaint war is entitled to the same treatment as the public good,
which is never condemned for the individual wrong it does and must do,
or the world would have stood still long ago.
The position of affairs may, therefore, be stated very clearly: only in
those cases in which the property in the cargoes seized has not passed
out of the vendor do the questions of contraband and blockade affect
him. But where the property has passed to an enemy purchaser or his
agent, then other questions arise which depend on the Declaration of
Paris.[34]
_The Declaration of Paris--Free Ships make Free Goods_
The Declaration of Paris has been roundly abused by many who believe
that it clipped the wings of England’s sea-power, having been
expressly designed thereto and weakly assented to by England. This
provision--‘Free ships make free goods’--covers goods consigned to
an enemy Government! But looking at it merely as it affects neutral
merchants, it fails lamentably as a practical doctrine, because in the
attempt at conciseness its authors forgot to be explicit. As it stands
it is not true. It has not interfered with the right of search because
contraband of war is excepted, and the fundamental argument that you
cannot seize if you cannot search, ‘whatever be the ships, whatever be
the cargoes, whatever be their destination,’[35] still holds good. Nor
has it interfered with or curtailed the rights incident to blockade;
then the doctrine of the Declaration vanishes, for there are no ‘free
ships’ by which the enemy’s goods may be made free, all goods on board
being liable to seizure.
But the great defect of the provision is that it leaves deplorably
vague the question by whom the ‘freedom’ of the enemy goods may be
raised: by the neutral carrier or the enemy owner; and it is precisely
this point which seems to have been ignored in the American Protest.
This question also arises very directly under the Order in Council,
for the first clause provides that the goods discharged from a neutral
vessel seized on its voyage to a German port, other than contraband
of war, shall, if they are not requisitioned for the use of His
Majesty, ‘be restored by order of the Court, upon such terms as the
Court may in the circumstances deem to be just, to the person entitled
thereto.’ Now, if the property in the cargo has by law passed to an
enemy purchaser certain questions as to the making of the order would,
I presume, arise, which for obvious reasons I do not discuss. But it
is quite certain that the American vendor could not appear and make
the claim on behalf of such a purchaser; equally certain that the
United States Government would have no _locus standi_. The position
under the Order in Council is the same as would arise in normal
circumstances if, for example, the question before a Prize Court were
as to the ‘effectiveness’ of a blockade. The neutral owner of the
ship would argue the case on his own behalf, but not on behalf of an
enemy owner of the cargo. As, therefore, the United States Government
could not argue the legal case on behalf of an enemy purchaser, and
as enemy purchasers are the persons specially cared for by this rule
of the Declaration of Paris, it is difficult to see how it can argue
the question diplomatically. But, not being altogether inexperienced
in diplomacy, it has limited its protest to the case of its neutral
merchants.[36] Then, with great deference, the invocation of the
Declaration of Paris is irrelevant, for the whole point of the clause
is the freedom of the goods and not the freedom of the ship; and the
question of the freedom of the ship cannot be raised, because the
exception of contraband of war from the rule carries with it a forced
submission to the belligerent right of search. And, further, the
question whether the Order in Council is an illegal extension of the
law of blockade is not affected by the Declaration, but must be decided
on other grounds.
But ‘quick returns make rich merchants,’ whether they result from
small profits or large. And in war-time the neutral merchant, being
a mere man of commerce, appears to be quite ready to ‘pay for the
boundless gain’ which the sale of munitions gives him by taking the
‘boundless risk’ of seizure and condemnation, keeping the property in
his cargoes while they are on the high seas. Should disaster follow,
there is always ‘the Government’ to fall back on; and if only it can
be persuaded to wave the banner of ‘neutral rights’ with sufficient
dexterity, the chances are in favour of compensation. Now, if all
neutral merchants would take Reason for their guide the Declaration
of Paris would reveal hitherto unsuspected virtues. Let me commend
the following brief articles to the consideration of the diplomatic
professors at the next Hague Conference: First--‘For the future
avoidance of tortuous discussions so common in the past, the law of
contraband, and so much of the law of blockade as affects neutral
merchants, are hereby abolished, and all contracts for the sale of all
goods whatsoever made between neutral and belligerent merchants shall
for all purposes be deemed to be contracts f.o.b.’ Secondly--‘For the
greater peace of the world, and the prevention of those financial
difficulties hitherto so commonly resulting to private individuals from
war, it is agreed that “free ships make free goods”; so only that such
free ships, whatever be their cargoes, whatever be their destination,
may be taken by either belligerent, without undue show of force or
unnecessary use of explosives, into his nearest port, there to abide
the decision of a Prize Court whether they be goods designed for the
use of the enemy forces; and, if it be shown to the satisfaction of
the Court that they be not so designed, then they shall be declared to
be “free goods,” and if the person entitled thereto be a neutral they
shall be delivered up to him on such conditions as the Court shall
think just; but if he be an enemy, other than the enemy Government,
then they shall be held until the conclusion of peace, when they shall
be delivered up.’
Is this a scheme straight from the Councils of Utopia? I wonder!
Perhaps for the present it may be left with the judicial formula ‘I
should like to hear the point argued.’ But this is certain, that if
contracts with belligerents were made with the same business caution
as contracts in peace-time, all the clamour about the ‘rights of
neutral merchants’ would die down, for they would have none which need
protection, and Notes of friendly remonstrance and dexterously worded
Protests would be unnecessary. But we live in an age of great unreason;
and the law of contraband and all that part of the law of blockade
which affects neutral merchants have been the inevitable result. The
Declaration of Paris might have got rid of many difficulties with a
little more study of actual facts, but it has not; and so, in spite of
good intention, we must wrestle, and I propose now to wrestle, with the
problems it has left unsolved.
_The Effect of the Order in Council_
The essential condition of blockade, as hitherto understood, is
that the blockading squadron must be in the immediate offing of the
blockaded port. We have placed our cruiser cordon at a considerable
distance from the German coast. And here, to the general, is the
stumbling-block in our way; to the American, is the sign of our
backsliding. Yet, curiously enough, _if we had declared a blockade_,
any question which might have arisen as to its validity owing to the
position of the cordon is set at rest by the Protest itself.
The rules of international law can only preserve their vitality if they
keep pace with the progress of science; if they do not, they must pass
into the limbo of forgotten things. Hence the necessity for a clear
discernment between essential principle and unessential detail. In
the first article I pointed out that this discernment was singularly
lacking in the early protests of the United States Government. The
details of our doings on the high seas were criticised as not being in
conformity with action which tradition justified; our all-sufficient
answer was that they were justified by the principles on which the
traditional action was based. Now although, as I think, in this last
Protest the American Government has judged what we have done by the
narrow formulas of a bygone age, when it comes to treat of ‘blockade’
it frankly abandons them; it literally leaps forward, and brushing them
aside shows us that we might have taken other measures of belligerent
discipline which would have reacted far more seriously against the
neutral merchant than those embodied in the Order. The American
Government believes--it is, when untroubled by the complainings of its
merchants, far too profound a student not to believe--that the law of
blockade greatly needs rewriting. Rules which were adapted to Nelson’s
frigates can have little or no application to the battle-cruisers of
to-day. But they were the outcome of a principle, and that principle
remains. The American Government agrees that for a blockade the cordon
of ships in the offing is no longer practicable in the face of an enemy
‘possessing the means and opportunity to make an effective defence
by the use of submarines, mines, and aircraft,’ and is therefore
no longer to be insisted on. It believes that a ‘long-distance
blockade’ is now inevitable. The importance of this admission cannot
be exaggerated. It might, I should have thought, be contended that a
‘blockade’ cannot be effective if the enemy possesses sufficient means
of offence--in other words, has the present means of destroying its
effectiveness. It can never be sufficiently insisted on that ‘blockade’
has, in addition to its realities, a technical and highly artificial
side. Under the conditions of warfare existing at the time the rules
were evolved, the visible sign of its effectiveness was the presence
of the blockading ships in the offing; that was the fact from which
the danger to merchant ships trying to run in to the blockaded coast
became evident. But if, whether by submarines, mines, or aircraft,
this danger ceases to be evident, if it can be actually eliminated,
if by the offensive protection of destroyers or cruisers there is an
evident danger to the blockading squadron, it would seem to follow
that both the real and the artificial effectiveness of that squadron
would be destroyed. A blockade liable to be seriously questioned, the
blockading ships to be annihilated, by an opposing squadron, seems to
involve a contradiction in terms.[37] But all this is top-hamper of
curious argument, and must go by the board when modern fleets take
up their war-stations. The enforcement of a ‘long-distance blockade’
is recognised by the American Protest as being one of their modern
duties. But for what purpose? For that extreme exhibition of force
which the command of the sea enables one of the belligerents to display
in order to strangle the life out of the enemy. That is the principle
of blockade--the exercise of sea-power to stop _all_ supplies from
going to the enemy, because he has that power; and the Protest admits
that this power may now be exercised in a wider area than in days
gone by: exercised against the enemy, and therefore exercised against
the neutral merchant, whose chances of getting even those things to
the enemy which had, before its exercise, been allowed to pass as
non-contraband are correspondingly diminished. Let it be noted at once
in italics that this admission comes from a Government which is the
most powerful protester against infringements of what it holds to be
the rights of neutral merchants.
The learned student detects here what appears to be an obvious flaw
in the argument. He has been taught that ‘a blockade must not extend
beyond the ports and coasts belonging to or occupied by the enemy,’ and
that ‘the blockading forces must not bar access to neutral ports or
coasts.’ The first and eighteenth articles of the Declaration of London
have thus summarised the practice. The Government of the United States
has not forgotten those elementary maxims; but it will not let them
interfere with the development of its theory of the ‘long-distance
blockade.’ The principle on which they are based can well be preserved:
‘If the necessities of the case should seem to render it imperative
that the cordon of blockading vessels be extended across the approaches
to any neighbouring neutral port or country, it would seem clear that
it would still be practicable to comply with the well-recognised and
reasonable prohibition of international law against the blockading
of neutral ports by according free admission and exit to all lawful
traffic with neutral ports through the blockading cordon.’
Very frankly, I have my doubts as to the soundness of the American
contention. When this time of warfare is overpast and only its echoes
remain, when another Conference shall assemble at the Hague to
endeavour to read its lessons more surely than its predecessors had
learnt those of previous wars, I doubt whether this new doctrine of
blockade will find much favour; for if it is accepted as an ‘effective
blockade’ the artificial side of the law must also be accepted,
and a temporary withdrawal on account of stress of weather must be
declared not to raise it.[38] But of this I have no doubt, that the
principle on which blockade rests will always be recognised, must
always be recognised because it is a fact--that a belligerent will, and
therefore, as we are used to say, ‘may,’ resort to the final strangling
process whenever he has the power, because he has the power; of this no
arbitrary rules can deprive him. I believe that when things come to
be weighed in the balance, when Time’s just sentence is pronounced, it
will be that the new Order in Council indicates the proper method by
which a belligerent may, in view of the advance in the methods of naval
warfare, now exercise that strenuous and strangling pressure upon the
enemy which in old days he was entitled to do by means of a technical
blockade, and that in the way it deals with the neutral merchant it has
found the correct solution of that part of the problem.
A great point is also made by the United States Government that the
Order in Council is invalid because, if it is to be considered as
a blockade, it discriminates against the United States and is not
enforced against those countries which, owing to their contiguity to
Germany, are inside the cruiser cordon. The principle on which this
complaint is based is thus given in Article 5 of the Declaration of
London:--‘A blockade must be applied impartially to the ships of all
nations.’ This principle is an integral part of the old system of
blockade, under which access to neutral ports or coasts may not be
barred by the blockading forces (Article 18 of the Declaration). But it
is manifest that directly the principle of the ‘long-distance blockade’
is admitted the access to neutral ports must be interfered with; and
the Protest expressly recognises the necessity of admitting this
principle. Moreover, it would seem that Article 5 of the Declaration
applies to an intentional discrimination between the ships of
different countries by the blockading belligerent. It is clear that the
United States Government does not interpret the article to be, from
reasons of geography, an impediment to the new form of blockade which
it has expressly approved.
_The Relation between Contraband of War and Blockade_
Let me now try to make things a little clearer. We are so accustomed to
the grooves in which our thoughts have been trained to run that we are
apt to overlook the intimate connexion which exists between the law of
contraband of war and the law of blockade. They are treated as isolated
doctrines, as independent branches of the law. The American Protest
declares them to be separate ‘concessions’ by neutrals to belligerents.
Discussed, as they are, in terms which have no common denomination
of language, comparison between them has become, if not impossible,
certainly unusual.[39] Let us then reduce them to a common denominator.
If we talk of both in terms of belligerent action we find in the law of
contraband the right of search as a preliminary to seizure, in the law
of blockade the right of seizure without search. In terms of the cargo
seized, we find the first limited to contraband of war, the second
unlimited. But this is not very satisfactory; it does not explain why,
if the neutral merchant has any _rights_ in regard to non-contraband,
the belligerent may destroy them by declaring a blockade. It appears
to lead to some such general principle as this: when neutral vessels
come within a certain distance from the enemy’s coasts (the offing)
a belligerent may seize anything and everything, but until they come
within that distance he can only seize contraband of war: which is not
an accurate statement of the law. ‘Belligerent right’ is clearly the
common factor; a belligerent has the right to declare what shall be
contraband of war; he has the right to declare a blockade. The variant
is the position and number of ships he makes use of, the exhibition of
sea-power by which both rights are enforced. So we get to this result:
that when there is a cordon of cruisers the belligerent may seize
anything, but when there are only isolated ships he may only seize
contraband of war.
This test ceases to be rudimentary when we introduce another factor
common to the two subjects--effectiveness. That the belligerent’s naval
dispositions must be capable of doing what he proposes to do--in other
words, must be effective to that end--is no less a feature of the
law of contraband than it is of blockade. Carrying contraband of war
and blockade-running are not offences; the evil consequences, which
authors insist on calling ‘penalty,’ result from capture. Therefore
in both cases what the belligerent _may_ do is only qualified by
what he _can_ do. That sub-conscious recognition of the possibility
that a belligerent may put far greater impediments in the way of
neutral communications with his enemy than is implied in the law of
contraband, becomes now the conscious principle which I gave in
outline in the first article: that ‘contraband of war’ and ‘blockade’
are identical in principle; that they are merely convenient names
given to varying exhibitions of sea-power against the enemy, and the
consequences, to enemy and neutral merchant alike, do in fact depend
on and vary with the force exhibited--that is, with the number and
position of the ships employed upon the service, which, if effectively
performed, results in both cases in seizure and condemnation.
Blockade in principle is, therefore, nothing more than an indefinite
extension of the list of contraband of war, subject only to the
requirement that a sufficient number of ships should be placed in
such a position as to make this extended threat of seizure effective.
This then is practically what the Order in Council does; and even if
it insisted on condemnation in all cases it would be justified, for
it satisfies the test which this analysis shows to be the true test,
and the only test, that the ships employed upon the service, both as
regards number and position, shall be effective for its due performance.
Now, seeing that the Order pays so great regard to the pocket of the
neutral merchant that it does not condemn _his_ non-contraband cargoes,
it is very difficult to discover any justification for protest. Shorn
of superfluity of words, the complaint is that we have not declared a
blockade; and it resolves itself into this: that we ought to seize and
condemn neutral cargoes and not rest satisfied with what may be termed
an interim seizure, which may not become absolute. The answer is that
the existence and extent of a right does not depend on the nature of
the procedure by which it is enforced. It is true that international
law has invented a fiction to assist the belligerent who decides to
declare a blockade; it preserves, _as against the neutral merchant_,
the ‘evident danger of seizure’ even when owing to stress of weather it
has ceased not merely to be evident, but to exist altogether. What can
this fiction have to do with the nature of the right to which it is a
mere adjunct? The right to stop _all_ supplies going to the enemy. It
is preposterous to say that a belligerent cannot exercise this right
unless he avails himself of the adventitious assistance which the law
offers him; that although he _can_ do without it yet he _may_ not.
* * * * *
What is true of the deep sea must also be true of the high air. When
the lorries and cargo-carriers of the air have come into being, and the
war in the air becomes even more of a grim reality than it is to-day,
neutrals carrying supplies to the enemy will, I imagine, receive short
shrift, contraband or no contraband, siege or no siege, blockade or no
blockade.
_The Sovereignty over Neutral Ships_
But the United States Government rests its protest on an alternative
ground. The Order in Council, it declares,
would constitute, were its provisions to be actually carried into
effect as they stand, a practical assertion of unlimited belligerent
rights over neutral commerce within the whole European area, and an
almost unqualified denial of the sovereign rights of the nations now
at peace.
* * * * *
This Government takes it for granted that there can be no question
what those rights are. A nation’s sovereignty over its own ships and
citizens under its own flag on the high seas in time of peace is,
of course, unlimited. And that sovereignty suffers no diminution in
times of war except in so far as the practice and consent of civilised
nations have limited it by the recognition of certain now clearly
determined rights which it is conceded may be exercised by nations
which are at war.
A belligerent nation has been conceded the right of visit and search,
and the right of capture and condemnation if upon examination a
neutral vessel is found to be engaged in unneutral service or to be
carrying contraband of war intended for the enemy’s Government or
armed forces. It has been conceded the right to establish and maintain
a blockade of an enemy’s ports and coasts, and to capture and condemn
any vessel taken in trying to break the blockade. It is even conceded
the right to detain and take to its own ports for judicial examination
all vessels which it suspects for substantial reasons to be engaged in
unneutral service, and to condemn them if the suspicion is sustained.
But such rights, long clearly defined both in doctrine and practice,
have hitherto been held to be the only permissible exceptions to the
principle of equality of sovereignty on the high seas as between
belligerents and nations not engaged in war.
If the rights of the neutral merchant are no greater than I have
stated them in the first article, and he acts at his own peril and
is entirely independent of his own Government, and if the rights of
the belligerents are as large as I have there stated them, then it
follows that there can be no question of ‘concession’ by the neutral
merchant’s Government, in regard to either contraband or blockade, but
only an assertion of belligerent right,[40] and all questions as to the
sovereignty of that Government over its merchants’ ships disappear.
When the neutral merchant is carrying contraband, or when he is
blockade-running, he deliberately runs his risk, and therefore cannot
claim the protection of his flag.
I think I am not overstating the case when I say that the doctrine on
which the United States Government rests its case against us is the
exact opposite of this. The prominent position which it holds in the
Protest shows that it is regarded as the key-stone of the argument, and
that if that key-stone is withdrawn the whole argument must fall to
pieces. At the risk of repetition I shall quote again a passage from
‘Historicus,’ referred to in the post-script to the first article, in
which he examines the terms of the British proclamations of neutrality.
Using his own language, ‘the vital importance of this matter to the
great issues’ which have arisen between the United States and Great
Britain, ‘must be my excuse.... The interests of peace demand that
there should be no doubt on this question.’ In these proclamations,
he says, the nature of the consequence, commonly called a penalty,
of trading in contraband of war ‘is pointed out with equal clearness
and correctness--_viz._ the withdrawal of the Queen’s protection from
the contraband on its road to the enemy, and an abandonment of the
subject to the operation of belligerent rights.’[41] And again, ‘when
the neutral Sovereign has withdrawn from his subjects engaged in such
a trade the protection of his flag, he has discharged the whole duty
of neutrality.’[42] To withdraw protection from the merchant when he
sets out on his risky adventure, to abandon him during his adventuring
to the exercise of sea-power by a belligerent which it is admitted he
must exercise because he is at war, is inconsistent with any notion of
_concession_. A neutral vessel carrying contraband is in no better case
than if she wore no flag. The _fact of the contraband being on board_
withdraws her from her national protection.
Further, the laws of the United States (which may be taken as
typical of neutral countries), ‘do not forbid their citizens to
sell to either of the belligerent Powers articles contraband of
war, or to take munitions of war ... on board their private ships
for transportation.’[43] It is impossible, therefore, to say that
the neutral Government--except only when an embargo has been
declared--exercises jurisdiction over such private ships, for the
national law creates no offence which could give jurisdiction.
Therefore it is clear that the neutral vessel by carrying contraband or
running blockade puts herself deliberately, and with the acquiescence
of her own Government, at the mercy of the other belligerent, and
submits to the exercise of belligerent rights.[44]
The right of search might be looked on as a concession, or an
infringement of jurisdiction, in the case of ships not carrying
contraband. Yet even this does not bear analysis; for, as ‘Historicus’
points out, ‘when a trade in contraband is notoriously and extensively
carried on, it exposes the innocent as well as the guilty to suspicion
and search, and this is precisely why the Queen in her proclamation
of neutrality exhorts her subjects to abstain from such a trade.’[45]
The proclamation in fact admits that this search of _all_ vessels on
suspicion is an integral and inevitable part of the right of search. It
is not a concession, but only the logical extension of the belligerent
right to capture contraband on neutral vessels, and to take all steps
necessary to attain that end. It is a part of the belligerent right.
This question does not arise in connexion with blockade, for there
there is no search, and all things become contraband of war.
_The Doctrine of ‘Continuous Voyages’ and the Order in Council_
But although I have been obliged to devote great space to these
preliminary subjects, the point of the Protest is still to come.
The condition attached by the United States to its theory of the
‘long-distance blockade’ is that free admission and exit must be
accorded ‘to all lawful traffic with neutral ports through the
blockading cordon.’ ‘Lawful traffic,’ it is explained, ‘would of
course include all outward-bound traffic from the neutral country, and
all inward-bound traffic to the neutral country except contraband in
transit to the enemy.’ This must be read with a sentence which occurs
earlier in the Protest:--
It is confidently assumed that His Majesty’s Government will not deny
at once [_i.e._ presumably, ‘will at once admit’] that it is a rule
sanctioned by general practice that, even though a blockade should
exist and the doctrine of contraband as to blockaded territory be
rigidly enforced, _innocent shipments may be freely transported to
and from the United States through neutral countries to belligerent
territory_ without being subject to the penalties of contraband
traffic or breach of blockade, much less to detention, requisition, or
confiscation.
At last we have the real issue. Assume everything in our favour: that
our blockading cruisers are rightly standing far out to sea; that
we should be justified in condemning the cargoes seized instead of
returning them to the persons lawfully entitled thereto: the United
States denies that its own particular doctrine of ‘continuous voyages’
can apply to a ‘long-distance blockade.’ And here undoubtedly the
books seem to be in its favour, for the rule they give, embodied
in Article 19 of the Declaration of London, is shortly this: the
doctrine of ‘continuous voyages’ does not apply to a blockade. This
is the logical consequence of the principle to which I have already
referred; that the blockading forces must not bar access to neutral
ports, because the doctrine of ‘continuous voyages’ expressly deals
with cargoes on vessels bound for neutral ports. But it would seem to
follow that with the disappearance of the offing from the definition of
‘blockade,’ and the consequent legitimate interference with access to
neutral ports, the application of the doctrine of ‘continuous voyages’
must follow as a matter of course. The fact is that the United States
Government has not fully counted the cost of its own admission. As I
have already shown, once the theory of the ‘long-distance blockade’
is admitted the principle of non-discrimination, a legal nicety
appurtenant to the old blockade, goes by the board, because geography
compels an involuntary discrimination against neutral countries which
are outside the cordon; so it is clear that this other principle of
non-application of the doctrine of ‘continuous voyages’ to blockade
must also go by the board, because it is the result of principles
specially applicable to the old blockade.
The doctrine of ‘continuous voyages’ holds no precious mystery; it
never meant more than this: that what the neutral trader cannot do
directly without running the risk of seizure and condemnation he cannot
do indirectly without running that risk. And whereas, as has been
shown, the right to blockade the enemy is in principle no more than
the right indefinitely to extend the list of contraband of war against
the neutral trader, this must apply equally whether cargoes are going
directly or indirectly to the enemy.[46]
The discussion of narrow rules hinders the clear vision of the things
which are; and of these the all-important one is that, call it by what
name you please, a belligerent _will_, whenever he has the power, take
the necessary steps to cut off _all_ supplies from the enemy; and he
will cut them off whether they are going by direct route or indirectly
through a neutral port. The old conditions under which that power was
exercised have, it is agreed, passed away; the power, which we call
the right, remains. The Government of the United States contends,
on behalf of its merchants, that they have the right to evade and
therefore to nullify that power by supplying the enemy, indirectly
and without risk, with those cargoes which they cannot safely supply
him with directly. Surely the proposition is impossible on the face
of it. To call such cargoes ‘innocent’ is to beg the question. The
introduction of the atmosphere and terms of the criminal law has done
more to fog the public comprehension of this branch of international
law than any inherent complexity of the problems with which it deals.
Yet here it will serve to bring home the inaccuracy of the American
contention to the public mind; for seizure and condemnation become a
sort of retributive penalty for the neutral merchant’s attempt to evade
what, to continue the language of law, the belligerent has the right
to command, by darkening and disguising his real intention. Judged
even by this imperfect standard, the American Protest has cut away the
ground from its own contention. The doctrine of ‘continuous voyages’
was accepted because of its logical simplicity; and this simplicity
shows that it must extend and reinforce every exhibition of sea-power
by a belligerent against his enemy; and its logic prevents the neutral
merchant from setting up any right, more especially any right which is
not only in conflict with the belligerent right, but is based on deceit
and needs a cloak to hide its real meaning. The right he claims is to
send to the enemy those supplies which the belligerent has declared his
intention and taken effective steps to deprive him of. If the neutral
merchant had such a right it would enable him to diminish the force of
the belligerent blow, to heal the stroke of the wound.
_Reprisals_
There has been much talk of retaliation. The Order in Council
has adopted the formula of the first of the Orders in Council of
1807,[47] that the action of the enemy has given to His Majesty the
‘unquestionable right of retaliation,’ and it has been assumed, too
readily as I venture to think, that this is an admission that our
action to-day falls outside the principles sanctioned by international
law. The American newspapers have found apt expression of their
criticism in the ancient adage ‘Two wrongs do not make a right.’ And in
the Protest of the Government this sentence occurs:
If the course pursued by the present enemies of Great Britain should
prove to be in fact tainted by illegality and disregard of the
principles of war sanctioned by enlightened nations, it cannot be
supposed, and the Government does not for a moment suppose, that His
Majesty’s Government would wish the same taint to attach to their own
actions, or would cite such illegal acts as in any sense or degree a
justification for similar practices on their part in so far as they
affect neutral rights.
A comparison of the measures taken by the Order in Council with
those ordered by the German Admiralty can hardly have been seriously
intended; yet to many this sentence seemed to be straining diplomatic
proprieties to their utmost limit. But any irritation it may have
caused has been blotted out by the stern words of disapproval used by
the President in his recent Notes to Germany.
But the reference to retaliation cannot, as it seems to me, be
legitimately construed into an admission of the illegality of the
measures decreed by the Order in Council. The utmost that can be
said of it is that it admits they are exceptional. The Order of
1807 declared that ‘no vessel shall be permitted to trade from one
port to another, both French,’ and it was enforced by seizure and
confiscation of neutral vessels which disregarded it. That and the
other Orders which countered Napoleon’s paper blockade of the English
coasts have been severely criticised; but it is impossible to apply
the same criticism to an Order which omits the confiscation, and on
the contrary, expressly provides for the return of both ship and cargo
to the neutral merchant. That the measures are exceptional may be
freely admitted, and to that extent they may be called reprisals; but
exceptional measures, even of reprisal, are not necessarily illegal
measures.
_The American Caveat_
The strangest part of the correspondence remains to be noted. The
United States Government, in July, lodged a _caveat_, intimating that
it ‘will not recognise the validity of Prize Court proceedings taken
under restraints imposed by British municipal law in derogation of the
rights of American citizens under international law.’ The Government
has thus indicated the retaliatory measures it proposes to take
against Great Britain; yet it has failed to see that the veiled irony
of the paragraph just quoted from the Protest applies in its entirety
to this reprisal. In so far as it relates to executive action, it
proposes to accomplish the impossible. Prize Court judgments are _in
rem_; they pass property, and if possession has followed not even the
United States Government can undo it, for there would not be even
a tenth point on which it could seize; and if possession has not
followed, Government action would be brought up short by the law.
Further, in so far as it relates to judicial action, the intention
appears to be to give an instruction to the American Courts how in the
circumstances they are to deal with the decisions of the English Prize
Courts. Thus the constitutional principle of the independence of the
Judiciary from the Executive is put in jeopardy, and the Government
would again be brought up short by the law. And in so far as it
relates to the law itself, the proposed action professes to decide
favourably to the present contention of the United States a difficult
and complicated question of law--whether judgments based on a municipal
law which, it is alleged, is a violation of international law are not
entitled to recognition by foreign Courts, more especially if they are
judgments _in rem_. Such a decision does not fall within the province
of the Executive, but only of the Courts. So, as it was said aforetime
in the British argument in the Behring Sea Arbitration, to all and
every part of the different protests which have been made against
our action by the United States Government, there is, with profound
respect, ‘but one answer--the Law.’
In an Editorial Note in the May number of the _North American Review_,
dealing with the relations between Great Britain and the United States
after the detention of the _Wilhelmina_, this sentence occurs:
If we should once admit the right of the Allies to forbid our sending
foodstuffs to Germany, how could we deny the justice of Germany’s
insistence that we should apply the same principle to England? And
what would happen to the English people then? Surely, too, our
British friends must realise that only the strictest adherence to
international law makes it possible for us to furnish to the Allies
the vast quantities of war munitions without which they could not hope
to win.
The great friendliness of its tone cannot but be grateful to us; yet
in this short sentence all the fallacies and misconceptions of the
real nature of the neutral merchant’s position are concentrated. I
have endeavoured to show that we have claimed to exercise a right
which a fuller examination of admitted principles shows to be entirely
warranted, that the only thing which stands in the way of the prompt
admission of its legality is a popular conception of belligerent rights
which unduly confines them within limits which have proved themselves
to be impossible in modern conditions of war. Law once was the handmaid
of commerce: she has long since become its mistress. But what, for
want of a better name we call international law is still in a state
of servitude. If its doctrines are to be treated as intelligible they
must be considered as a continuous development springing from, and as
the inevitable consequence of, the first cause, that two nations are
at war. Then War becomes the key-note, subdominant, dominant, leading
note, every note of the scale of action throughout the world, and
the neutral merchant cannot pitch the tune as it may best suit his
interests.
Is then the justification for the new procedure of the Order in Council
an ultimate reference to Might is Right? Have I, following far behind
the United States Government in the strenuousness of the law as I have
formulated it, found also a justification for the German who relies
on Might without troubling to assert the Right? Surely not. I have
striven to base the whole law and every part of the law as it affects
the neutral merchant on the plain fact that all exercise of might
against the enemy, so long as it comes within the laws of humanity and
the rules of war, is justifiable, and the omission of it mere folly,
and that it is not limited by considerations of time and space; and on
this still plainer fact that the exercise of might against the enemy
engenders ‘right’ against such neutral merchants as do, of their own
free will and with eyes open, bring themselves within the scope of it.
* * * * *
P.S.--I have dealt with the subject on the supposition that all
contracts are made after the declaration of war. But much foreign
trade is carried on by ‘long-distance’ contracts, and neutral merchants
who have entered into continuing contracts before the War would seem to
demand special attention, for their eyes were not open, and the risk of
seizure by a belligerent has caught them awares. Speaking generally, it
is here that the consideration shown to the neutral merchant by Great
Britain may find full scope for action. But I admit quite frankly that
so much of my argument as is personal to the neutral merchant does
not apply to this category. On the other hand, the law of contraband,
with its adjunct the doctrine of ‘continuous voyages,’ and the law
of blockade, as they have been understood in the past, do not exempt
them from the rigours of their operation. Yet the fact remains that
the new development of the law does impose upon them greater risks
than they ran heretofore, and a protest specially devoted to their
hard case would, I imagine, if it were limited to contracts relating
to non-contraband and to contracts not made with the enemy Government,
receive careful consideration.