FOOTNOTES:

[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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