_COTTON AS CONTRABAND OF WAR_
[_September 1915_]
Cotton proclaimed Contraband of War--Public Demand for the
Proclamation--The answer to the Critics of the Government--‘Continuous
voyages’ and the Order in Council--Possible combination of Contraband
and Blockade--American reply to Austrian Note.
Raw cotton has been proclaimed contraband of war.[48] I may therefore
fill in a blank space in what I have written in the previous articles
on the law of contraband of war and the law of blockade. It was
obviously impossible while the matter was, as it were, _sub judice_,
to point the moral of the doctrine advanced in those articles--which
I believe to be most sound doctrine--that ‘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,’[49] by a
reference to the ‘cotton question.’ But I am free to do so now.
_Public Demand for Cotton to be made Contraband of War_
I must confess that the movement, of which the Proclamation is the
outcome, in its later stages has filled me with amazement; more
especially the way in which, the object attained, the announcement of
its issue has been received. A sigh of relief has gone up: ‘At last!’
it is said, ‘the Government has given way, and the step has been taken
which should have been taken at the beginning of the War.’ There is a
gratified assumption that those who have fought the good fight have
triumphed over a stubborn lot of procrastinating and incompetent
Ministers. Some even suggested, when the decision was announced, that
a wicked Government might, after all, only make cotton conditional
contraband, for was it not a Government prone to subterfuge?
The leaders in the fight, the distinguished chemists, are so eminent
that I refrain from applying to them the term ‘agitators’; they are so
eminent that I am sure they will bear with me patiently while I explain
why, even though they appear to have accomplished it, they were trying
to shut a door that was already closed, for ‘sweet reasonableness’
is an attribute of all eminence. It is not necessary now to inquire
what were the reasons which induced the Government to refrain from
putting cotton on the list of absolute contraband during the first six
months of the War; it was a policy deliberately adopted by responsible
Ministers; whether it was the right or the wrong policy is not the
question which the leaders of the movement have put in issue. The
errors of the past were at length to be retrieved.
By the Order in Council of the 11th of March, a new policy was adopted
which, in the opinion of the present Government, should have been
effective to achieve what all desire--the prevention, by all possible
legitimate means of warfare, of cotton, as well as everything else,
from reaching Germany. This was intimated in Lord Moulton’s answer
of the 19th March to the distinguished chemists who had moved in the
matter;[50] and it was more fully explained by Lord Robert Cecil in
the House of Commons in August. It is that policy which has been so
vehemently attacked as insufficient, as part of our ‘sorry record
in the cotton question.’ It was contended that in spite of the
far-reaching effect of the Order in Council it was necessary further
to reinforce the powers taken under it by putting cotton on the list
of contraband of war; and the Government have now done what they were
asked to do.
The criticism of the Government took two forms, one of which was
serious. The other may be dealt with summarily. It was to the effect
that the Order in Council ought to be revoked because, so it was said,
many lawyers considered it to be contrary to international law, and
that it should be replaced by some provision dealing specially with
cotton. I have endeavoured in the preceding articles to show that this
opinion of my learned brothers, if indeed they hold it, is erroneous.
But, putting this on one side, I believe the sound and only rule of
speech and of the pen for Englishmen while the War lasts to be _omnia
præsumuntur rite esse acta_. Criticism, based on learning or otherwise,
of action taken by the Government against the enemy is out of place
in time of war. The fact that such action affects neutral merchants
injuriously does not justify criticism, for whatever weight it may
have, by so much it adds to the difficulties, already immense, of
temperate discussion with neutral Governments; by so much it heartens
the enemy who seeks _per nefas_ to render the discussion intemperate.
For the present, therefore, at least a judicious silence is the better
and the wiser part.
But criticism of inaction of the Government in regard to the enemy
stands on a different footing, and, so only that it conform to one
condition, it is permissible. That condition is the not unimportant
one--full knowledge of all the facts. The eminent chemists and others
who have been so vehemently urging the Government to make cotton
contraband of war were critics of alleged inaction, and so far their
position was unimpeachable; but, I venture with respect to ask them,
did they know _all_ the facts? They certainly knew one fact--that,
at the time they approached the Government, Germany was getting too
much cotton; and realising the intimate connexion between this and
the ever-growing lists of casualties they were deeply stirred, as all
of us who are condemned to sit at home at ease were deeply stirred
when we came to understand. But emotion is apt to cloud clear mental
vision, and we have been asked by some persons to believe that those
others, men like ourselves, who form the Government of the nation,
having eyes yet see not the plain things that are going on before them.
And yet those are the only men among us who know _all_ the facts. The
critical point, however, is not whether Germany has been getting too
much cotton, but whether she has been getting it because the Government
had not taken sufficiently strenuous measures to prevent it. This being
assumed in the affirmative, these eminent critics further assumed that
declaring cotton to be contraband would be more effective in preventing
it from getting to Germany than the procedure authorised by the Order
in Council.
_The Answer to the Critics of the Government_
None of us know what is actually happening on the high seas in the
area controlled by our cruiser squadrons, though the statistics just
published by the Foreign Office somewhat lift the veil. We cannot,
therefore, do more than consider the abstract question of principle,
whether it was necessary to supplement the Order in Council by a
proclamation of contraband so as more effectually to prevent cotton
getting through to Germany; and it seems to me essential to a right
understanding of the discussion that we should consider it.
Now there is one fact which I should have thought would at once have
disposed of the whole contention of the critics--the Protest of the
United States Government. That Protest declares that in the Order in
Council we have gone to lengths in interfering with American trade
(which includes trade in cotton) hitherto unknown to international
law, more especially in stopping that trade, asserted to be ‘innocent’
but manifestly the opposite, on its way to neutral countries. In all
friendliness that Government exhorts us, among other things, to revert
to the time-honoured practice of relying on declarations of contraband.
It appears, therefore, that the United States Government charges us
with doing precisely what our own critics condemn Ministers for not
doing, except by ‘a half-hearted expedient’--stopping ‘innocent’
cargoes of cotton. That Government insists that the correct way of
preventing cotton reaching the enemy is to shut ourselves up in those
old watertight compartments of international law labelled ‘contraband’
and ‘blockade.’ They want to entangle us in that incomprehensible
ravel of illogic into which those doctrines of international law have
got themselves. Paraphrased, what the American Government says is
this--declare a blockade, even though it be a ‘long-distance blockade,’
which they are willing to concede to be our right, and then we may stop
all cotton going direct to German ports, though not, as the text-books
point out, cotton going indirectly to Germany through neutral ports;
or, declare cotton to be contraband, and then we may stop it even
though it passes through neutral ports. But as we had done neither of
these things _in express terms_, Germany must be allowed to get her
‘innocent’ shipments of cotton by way of neutral and contiguous ports.
Verily, the American fowler spreads the net in the sight of the British
bird.
Here is the substance of the whole discussion. The Judges of the United
States, with clear-cut thought, declared, half a century ago, that
the doctrine of ‘continuous voyages’ was the inevitable complement
to the belligerent right of stopping munitions of war and their
component substances on the high seas on the way to the enemy. In
other words, that the doctrine completed the law of contraband of war.
The British Government, has, by the Order in Council, declared that
doctrine equally to be the inevitable complement to the more extended
belligerent right of stopping _all_ supplies from reaching the enemy.
In other words, that the doctrine completes the law of what we have
called the ‘new blockade.’
This, then, is the clear issue raised by the Order in Council for the
judgment of any tribunal, national or international, to which it may
hereafter be submitted, and of the world to which it is now submitted.
And the position is, in my humble judgment, and in spite of the critics
on our own side, unassailable. Nations, no more than individuals, are
not to be bound by mere phraseology, especially in such a subject as
this, without knowing what the terms used mean. ‘Blockade’ is a mere
term, explaining what belligerent nations do, but not why they do it
nor why neutral nations silently acquiesce.[51] It tells nothing of the
right to do it. On the contrary it seems, for a hundred years, to have
successfully blinded men by its technical conditions to the fact that
the so-called right to declare a blockade is no more than a declaration
of an intention by a belligerent to stop _all_ supplies from going
to the enemy, and stopping them. Is it not abundantly clear that
that intention cannot be nullified by the cleverness of the neutral
merchant in ‘darkening and disguising’ the fact that they are going to
the enemy? That, then, we have declared by the Order in Council to be
our intention, and we have acted on it. It may be that, in regard to
cotton, we have exercised it imperfectly; some neutral merchants may
have successfully evaded the vigilance of our ships. Human agencies are
never quite perfect; of all, even though they be official, Rostand’s
philosophy is, alas! too true:
Sache donc cette triste et rassurante chose,
Que nul, Coq du matin ou Rossignol du soir,
N’a tout-à-fait le chant qu’il rêverait d’avoir.
But because the ingenuity of the neutral merchant and his confederates
has, as it is said, so far greatly baffled the vigilance of the
mightiest fleet that ever stood guard upon the sea, the critics of the
Government protest that we should fall back on the lesser remedy of
declaring cotton contraband, and revoke, abandon, or ignore the more
strenuous remedy provided by the Order in Council. It is difficult to
appreciate the position these critics take up; it can only be explained
by a lack of understanding of the real meaning of the Order. This
these articles have endeavoured to do.
But, curiously enough, there is just one point where the combined
operation of the laws of contraband and of blockade _may_ increase
our power of seizing cotton. It follows from what I have said in the
second article with reference to the importance of reducing both laws
to a common denomination of language,[52] that the reinforcement of
even our ‘long-distance blockade’ by the addition of cotton to the
list of absolute contraband will enable us to seize cargoes of cotton
by isolated cruisers before the neutral ships which carry them reach
the area in which the cordon of cruisers is operating. If this is a
valuable power, as to which I am sceptical, it is right that it should
be claimed and exercised; and it is one of the powers which result from
the new Proclamation. I feel sure that the critics of the Government
had not this addition to our powers solely in their minds; they
certainly did not so formulate their criticism.
But the action which the critics wanted the Government to take has
been taken; and I think the reason may not be far to seek. The
American merchant, like his Government, believes that there is much
virtue in technical terms. He says ‘put cotton on the list of absolute
contraband; I know what that means; then I shall know where I am.’ I
pointed out in the first article that the problem of the neutral trader
is a very 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.’[53] The cotton-grower of the Southern States prefers to be
thwarted in this manner, and the British Government has humoured him.
He prefers the risk of confiscation to the possibility of having his
cargo returned to him if he is ‘the lawful owner thereof.’ So all is
well.
The comments which have appeared since the Proclamation was issued
have laid much stress on the deterrent effect it is bound to have on
the cotton shippers, because the Order in Council does not provide for
confiscation of cargoes of non-contraband, whereas now that cotton is
contraband it must be confiscated. Also the complaint has been revived
that the Order in Council was loosely enforced, and it is imagined
that the declaration of contraband will of itself ensure a stricter
supervision of cargoes of cotton at sea. It is difficult to follow
either arguments, even on the supposition that this latter criticism
is justified. For the machine by which both the Order in Council and
the contraband Proclamation must be carried out is the same--the
Fleet. The effectiveness of this machine, the efficiency of the Fleet,
is obviously the dominating factor of the situation, whether it be
governed by the Order or by the Proclamation. The deterrent nature of
the fact that confiscation is now inevitable may possibly reduce the
number of cargoes of cotton with which the Fleet may have to deal, but
the other fact remains, that the Fleet will deal with them whatever
may be their number.
There has also been, even in very responsible quarters, some rather
confused talk to the effect that the result of the contraband
Proclamation is to ‘improve our international legal position.’ If
this means anything it implies acquiescence in the American argument
that the Order in Council is not warranted by international law. Such
an argument, as I have already said, is more than inopportune at the
present time; those who use it would, I presume, be pleased to see
the Order in Council revoked altogether. I trust, on the other hand,
that nothing that I have said will be construed to suggest that the
Government in yielding to the clamour of the critics has issued a
futile Proclamation. Yet it is impossible to imagine that Ministers
have lost faith in the virtue and efficacy of the Order in Council.
The latest statement in Parliament, by Lord Robert Cecil, which I have
already referred to, shows that they have not. The Proclamation does,
as I have shown, strengthen the position in some slight measure; but
there is a well-known form of legislation often resorted to ‘for the
quieting of doubts,’ which does not give away the situation. Such I
believe this Proclamation to be.
But for the sake of the science of international law, in the
preservation of which both the British and the American Governments
are profoundly interested: for the sake of that cardinal principle
that as weapons of war increase in their power of destruction so must
the belligerent might and right also increase, and new means must be
found for keeping the new manifestations of sea-power within the old
principles: for the sake of our duty of loyal belief that the Order in
Council has devised those means in most legitimate fashion, let not the
critics of the Government, learned or unlearned though they be, lay the
flattering unction to their souls that they have won a famous victory.
* * * * *
P.S.--I take this opportunity of referring to the American reply to
the Austrian Note which complained that the sale of munitions of war
by United States merchants to the Allies was a breach of neutrality
on the part of the United States Government. The Note was in the
forcible-feeble style. It gave me the impression of having been written
to order of the German Government by men who had not much belief in
the soundness of their argument. It very clearly showed that necessity
‘knows no law,’ for erroneous doctrine was assuredly never so weakly
stated. But it gave President Wilson an occasion of finally disposing
of the false, and of asserting the true, principles of neutrality.
It disposes also of the notion prevalent in some quarters, to which
I referred in the second article, that the President’s ‘sense of
fairness’[54] had something to do with our continuing to receive
munitions of war from the United States. The reply has not been much
noticed, but it deserves transcription as a most masterly statement of
law and policy: ‘The principles of international law, the practice of
nations, the national safety of the United States and other nations
without great military and naval establishments, the prevention of
increased armies and navies, the adoption of peaceful methods for the
adjustment of international differences, and, finally, neutrality
itself, are opposed to the prohibition by a neutral nation of the
exportation of arms and ammunition or other munitions of war to
belligerent Powers during the progress of the War.’
I draw special attention to the sentence ‘the national safety of the
United States and other nations without great military and naval
establishments’; these are the nations, small in their powers of
defence, who, as I have pointed out, must go to the wall if the wild
dream of neutralizing the sea should ever be allowed to materialise.[55]