[1] The _caveat_ of the United States Government, published in _The
Times_, 24th July, 1915. This action is considered in the second
article, at p. 90.
[2] The book recently published by the French Foreign Office setting
forth the crimes of the German Government is, with great and customary
accuracy, entitled ‘Les violations des Lois de la Guerre par
l’Allemagne.’
[3] As by the sinking of a merchantman on which its citizens are
travelling, without warning and without affording them proper means of
escape, or by the dropping of bombs on an unfortified town in which its
citizens are residing. If such neutral citizens are injured, elementary
legal principles deprive the belligerent, become barbarian, of the plea
that he did not know of their existence.
[4] See the footnote on p. 95.
[5] See p. 85.
[6] ‘The Government will use all its belligerent rights, whatever they
may be, whether under the Order in Council, or under the law apart from
that Order’ (Lord Robert Cecil, House of Commons, 19th Oct. 1915).
‘The Foreign Office is profoundly anxious to enforce to the utmost our
blockade rights.... Taking the broad results, the blockade of Germany
had been a great success, and not a great failure’ (Lord Robert Cecil,
House of Commons, 2nd Nov. 1915).
[7] The ‘Three Rules’ are contained in Article 6 of the Treaty of
Washington, 1871, by which the settlement of the Alabama claims was
arranged. It provided that: ‘In deciding the matters submitted to the
Arbitrators, they shall be governed by the following three rules, which
are agreed upon by the High Contracting Parties as rules to be taken
as applicable to the case, and by such principles of international law
not inconsistent therewith as the Arbitrators shall determine to have
been applicable to the case. A neutral Government is bound--first, to
use due diligence to prevent the fitting out, arming, or equipping,
within its jurisdiction, of any vessel which it has reasonable ground
to believe is intended to cruise or to carry on war against a Power
with which it is at peace; and also to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having been specially adapted,
in whole or in part, within such jurisdiction, to warlike uses.
Secondly, not to permit or suffer either belligerent to make use
of its ports or waters as the base of naval operations against the
other, or for the purpose of the renewal or augmentation of military
supplies or arms, or the recruitment of men. Thirdly, to exercise due
diligence in its own ports and waters, and, as to all persons within
its jurisdiction, to prevent any violation of the foregoing obligations
and duties. Her Britannic Majesty has commanded Her High Commissioners
and Plenipotentiaries to declare that Her Majesty’s Government
cannot assent to the foregoing rules as a statement of principles of
international law which were in force at the time when the claims
mentioned in Article 1 arose, but that Her Majesty’s Government, in
order to evince its desire of strengthening the friendly relations
between the two countries and of making satisfactory provision for the
future, agrees that in deciding the questions between the two countries
arising out of those claims, the Arbitrators should assume that Her
Majesty’s Government had undertaken to act upon the principles set
forth in these rules. And the High Contracting Parties agree to observe
these rules as between themselves in future, and to bring them to the
knowledge of other maritime Powers, and to invite them to accede to
them.’
[8] This is expressly declared by Article 7 of the Hague Convention
of 1907, No. 13, ‘respecting the Rights and Duties of Neutral Powers
in Maritime War,’ which is as follows:--‘A neutral Power is not bound
to prevent the export or transit, for either belligerent, of arms,
munitions of war, or, in general, of anything which could be of
use to an army or fleet.’ The full meaning of this article is made
specially clear by its juxtaposition with Article 6, which provides
that ‘The supply, in any manner, directly or indirectly, of war-ships,
supplies, or war material of any kind whatever, by a neutral Power to a
belligerent Power, is forbidden.’
[9] _Letters of Historicus_, p. 121:--‘The recent unfortunate evasion
of the _Alabama_ has given rise to much discussion on the general duty
of a neutral Government with respect to the trade of its own subjects
with the belligerents in contraband of war. One might have supposed
that if there were any question which the authority of accredited
writers, the definitions of public documents, and the universal
practice of nations, had clearly and decisively ascertained, it was
this very question on which, unhappily, there seems to prevail a
most general and unfortunate misapprehension. This misapprehension,
grave as it is in the exasperation which it is calculated to produce
between friendly nations, is not altogether inexplicable. We have
the misfortune to live in days when, in the name of liberalism,
philanthropy, and civilisation, we 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, and to rear upon its ruins the
trumpery edifice of a shallow caprice. It is the old story of that
pretentious philosophy which, by a recurrence to first principles,
attempted with so little success to operate the regeneration of
mankind. I would that we had yet among us the multitudinous eloquence
of Burke or the poignant wit of Canning to do condign justice upon this
presumptuous sciolism.’
[10] This was generally accepted as a fact at the time this article was
written. It must, however, now be noted that the Captain of the _Emden_
has denied it.--_F. T. P._
[11] Wallace’s (U.S.) Reports, p. 514.
[12] A sketch of the view of international law presented in this
article appeared in some letters by the present writer to the _Daily
Dispatch_.
[13] The Earl of Crawford, in the debate in the House of Lords on
Naturalisation, 6th January, 1915.
[14] Cited, _Letters of Historicus_, p. 127. The quotation comes from
Galiani, but is cited by Azuni with approval. He wonders how Galiani,
having enunciated so sound a doctrine, could derive from it the unsound
conclusions which he successfully combats.
[15] See the quotation from Azuni, cited _Letters of Historicus_, pp.
126-131:--‘Whatever may be the other demerits of Azuni’s work, his
doctrine on this point is unquestionably sound, and the reasons which
he adduces are unimpeachably accurate--
‘“Commerce in all kinds of merchandise, commodities, and
articles of manufacture, being allowed in time of peace to
the subjects of a nation, so far as the laws of the State, or
particular treaties with other Powers create no exception,
they ought to be permitted to do the same thing during the
continuance of war, since neither of the belligerent parties
has a right to impose any new obligations on the neutral,
which did not exist in time of peace. * * * *
‘“In the public treaties down to the present time, do we
in fact see any prohibition than that of transportation of
contraband goods to an enemy? No nation, not even the most
powerful, or those who could, with impunity, exercise the
right of the strongest, have ventured, in their declarations
of war, dictated by the most violent animosity, to prohibit
neutrals from the impartial sale of any goods in their own
territory. They have confined themselves to the threat of
confiscating contraband articles which should be found
clearly destined to the enemy.”’
[16] I have not attempted to discuss the questions raised by the
Order in Council of October 29, 1914, which put in force, during the
hostilities, the Declaration of London, subject to exceptions and
modifications.
[17] Cited, _Letters of Historicus_, pp. 133, 170:--‘Mr. Huskisson, in
the debate on the Terceira affair in 1830, cites the opinion of Mr.
Canning to the following effect (_Hansard_, vol. xxiv., N.S., p. 209):--
‘“Arms may leave this country as a matter of merchandise,
and however strong the general inconvenience, the law cannot
interfere to stop them. It is only when the elements of
armaments are combined that they come within the provision
of the law, and if that combination does not take place
till they have left this country, we have no right to
interfere with them.” These are the words of Mr. Canning,
who extended the doctrine to steam-vessels and yachts that
might afterwards be converted into vessels of war, and they
appeared quite consistent with the law of nations. At the
very moment he was speaking, arms and clothing were about to
be sent out of this country to belligerents. Were they to
be stopped, or were they to be followed and brought back?
He believed the answer would be, No; and if it were Yes,
of what use, he would ask, 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?’
The speech is cited at greater length on p. 170.
[18] Cited, _Letters of Historicus_, p. 129:--‘It is a general
understanding, grounded on true principles, that the Powers at war may
seize and confiscate all contraband goods, without any complaint on the
part of the neutral merchant, and without any imputation of a breach
of neutrality in the neutral Sovereign himself. It was contended on
the part of the French nation, in 1796, that neutral Governments were
bound to restrain their subjects from selling or exporting articles
contraband of war to the belligerent Powers. But it was successfully
shown, on the part of the United States, that neutrals may lawfully
sell, at home, to a belligerent purchaser, or carry themselves to
the belligerent Powers, contraband articles, subject to the right of
seizure _in transitu_. This right has since been explicitly declared
by the judicial authorities of this country. The right of the neutral
to transport, and of the hostile Power to seize, are conflicting
rights, and neither party can charge the other with a criminal act.’
(_Commentaries_, vol. i., p. 142.)
[19] Cited, _Letters of Historicus_, p. 177.
[20] See p. 17.
[21] Article 4 of the Declaration of London, which stated accurately
the established doctrine.
[22] From the Convention of 1901 between England and Russia, cited
_Letters of Historicus_, p. 92.
[23] From a speech of Lord Grenville, cited _Letters of Historicus_, p.
108.
[24] On p. 2.
[25] _Letters of Historicus_, pp. 165, 168.
[26] _Letters of Historicus_, p. 132:--The following paragraph follows
the quotation cited in the text:--
‘The true doctrine is enforced with singular clearness
and force by President Pierce, in his Message of December,
1854:--
“The laws of the United States do not forbid their
citizens to sell to either of the belligerent Powers articles
contraband of war, or to take munitions of war or soldiers on
board their private ships for transportation; and although in
so doing the individual citizen exposes his property to some
of the hazards of war, his acts do not involve any breach
of national neutrality, nor of themselves implicate the
Government. Thus, during the progress of the present war in
Europe, our citizens have, without national responsibility,
therefore, sold gunpowder and arms to all buyers, regardless
of the destination of those articles. Our merchantmen have
been, and still continue to be, largely employed by Great
Britain and France in transporting troops, provisions,
and munitions of war, to the principal seat of military
operations, and in bringing home the sick and wounded
soldiers; but such use of our mercantile marine is not
interdicted, either by international or by our municipal law,
and, therefore, does not compromise our neutral relations
with Russia.”’
[27] See p. 13.
[28] The financial stability of the smaller States holds a very
prominent position in the argument of _The Great Illusion_.
[29] That his enemies were at least ‘gentlemen’: an opinion expressed
in consequence of the courteous treatment he received at Kirkwall on
his journey home under safe-conduct.
[30] The real issue _must_ be understood, or we shall find ourselves
in a blind alley. The case _must_ be put as strongly as I have put
it. The Washington correspondent of _The Times_, writing on July 19,
full of anxious solicitude at the gravity of the situation, assuming
us to misunderstand it, said: ‘It is all very well to trust to the
President’s sense of fairness to prevent the closing of American
sources of supply of munitions of war. We can surely do so with perfect
safety.’ In the prevalence of this view of the case lies the gravest
danger. Once admit that ‘fairness’ has in any shape or form anything
to do with the matter, we open the flood-gates of Teuton eloquence,
and, to use the conventional expression, the President must be a
strong man to resist it. The question must be looked at from a higher
standpoint; and it cannot be put more strongly or tersely than it was
by Mr. Bryan in his letter to Mr. Stone in January: ‘It is the business
of belligerent operations on the high seas, not the duty of a neutral,
to prevent contraband from reaching the enemy.... If Germany and
Austria-Hungary cannot import contraband from this country it is not
because of that fact the duty of the United States to close its markets
to the Allies.’
[31] _The Times_ correspondent from New York, on January 11, thus
recorded an extract from Herr Dernburg’s speech at a Republican club in
America.
An enlightening and interesting commentary on the
sincerity of the German diatribes against the United States
for ‘helping Germany’s enemies’ is furnished by the fact
that, during the rebellion in China in 1913, the rebels in
the Southern Provinces obtained large supplies of arms from
German firms in Shanghai. The German Government took no
steps to prevent its subjects ‘helping the enemies’ of the
Republic; on the contrary, it joined, so it was reported,
in protesting against the Chinese Government exercising in
self-defence its undoubted right of search and seizure of
cargoes of arms which it knew were being smuggled into the
Settlement in order to be handed over to the agents of the
rebel leaders. Circumstances alter cases.
[32] The paragraph of the Protest which is here criticised is set out
at length on p. 81.
[33] See p. 14.
[34] In order not to confuse the argument, I refer here specifically
only to the case of a neutral vendor and an enemy purchaser. Where the
purchaser is also a neutral trader the legal position does not alter
until the facts make the case one of ‘continuous voyage.’
[35] See p. 37.
[36] See the quotation from the Protest, set out on p. 89.
[37] I put this forward purely as a theoretical consideration, because
I am not sure that Nelson’s historical blockades fulfilled the
condition of not being subject to effective attack. But whether they
did or not, the possibilities of destroying the actual as distinguished
from the potential effectiveness of a blockade have been entirely
altered by the modern appliances of sea-warfare.
[38] See p. 44.
[39] See the footnote on p. 95.
[40] See p. 62.
[41] _Letters of Historicus_, p. 132, quoted _ante_, p. 48.
[42] _Ibid._ p. 136.
[43] President Pierce, cited _Letters of Historicus_, p. 132.
[44] As an illustration of the scrupulous exactitude of the appeal
to principles by President Wilson in his recent Notes to Germany, I
may refer to the distinction he draws in the Note of June 11, between
the duty of a neutral Government to enforce its own laws in regard to
granting clearances to vessels carrying cargo prohibited by those laws,
and the grant of clearances to vessels carrying contraband of war:
‘Performing its recognised duty as a neutral Power and enforcing its
natural laws, it was its [_i.e._ the Government of the United States]
duty to see to it that the _Lusitania_ was not armed for offensive
action, that she was not serving as a transport, that she did not carry
cargo prohibited by the statutes of the United States, and that if, in
fact, she was a naval vessel of Great Britain she should not receive
clearance as a merchantman. It performed that duty. It enforced its
statutes with scrupulous vigilance through its regularly constituted
officials....’ The performance of these express duties is treated as
distinct from the contention of the German Government that the carriage
of contraband of war was a violation of American law.
[45] _Letters of Historicus_, p. 177.
[46] I gather that the meaning of the official answer, dated March 19,
to the distinguished chemists who were agitating for the inclusion of
cotton in the list of absolute contraband is that their views have been
met by the Order in Council. This answer, as printed in the papers of
April 6, 1915, was as follows:--
War Office,
High Explosives Department,
_19th March, 1915_.
Institution of Mechanical Engineers,
Storey’s Gate,
Westminster, S.W.
DEAR SIR,--Lord Moulton desires me to acknowledge your
letter of the 11th March covering a further letter signed by
various gentlemen.
Lord Moulton feels that you will be entirely satisfied
by the terms of the Order in Council dated the 11th day of
March, 1915, which appeared in the Press of the following day.
Yours faithfully,
J. BAZIRE.
[47] Dated January 7, 1807.
[48] By Proclamation, August 18, 1915.
[49] The opposite principle is that of the ‘watertight compartments,’
to which reference is made later. It has Westlake’s support, whose
opinion was thus quoted with approval by Mr. Pawley Bate in a learned
article in the July number of the _Quarterly Review_: ‘No attempt to
find a sound juridical basis for blockade has succeeded. Nothing higher
than “compromise by tacit international agreement” can probably be
found.’
[50] See p. 87.
[51] I refer in support of this statement to Westlake’s opinion, cited
in the footnote on p. 95.
[52] See p. 77.
[53] See p. 6.
[54] See footnote on p. 59.
[55] See p. 35.
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