So much for general principles; let us now consider whether in detailed
practice the claims of the British Government or the practice of the
British courts have been particularly reprehensible. The two questions
are of course distinct; and my own impression, given merely for what it
may be worth, is that the decisions of the courts will bear the severest
scrutiny, while the claims of the Government are closely analogous to
the claims advanced by all governments in a similar situation. They will
compare not unfavourably, for instance, with the claims of the United
States in the Civil War. It should also be noticed that Great Britain
does not act alone; and as compared with the precedents laid down by
various nations in previous wars, a policy agreed upon by six of the
most important maritime powers in the world has at least a slightly
higher claim to validity than one laid down by a single power. Mr.
Bullard in one extremely high-principled passage explains that the
United States could not in conscience join the Allies in this war
because that would be fighting in order "to make British convenience the
rule of the seas." But here his moral feelings have evidently
intoxicated him. It is obvious that, if the United States had cared to
come in,--which I am not for a moment urging,--the law of the seas
would, at the very worst, have been interpreted, not for the
convenience of Great Britain alone but for the convenience of Great
Britain, France, Italy, Russia, Portugal, Japan and the United States.
But let us consider the particular enormities which England is supposed
to have committed. And let us be clear about the issue. I do not contend
that we have never stretched in our favour the vague body of unwritten
rules, based on conflicting precedents and unenforced by normal
sanctions, which is called international law. Every belligerent in every
war hitherto has done so; and that not always from national selfishness
alone. International law, apart from the fundamental misfortune of
having at present no sanction behind it, suffers from two great
weaknesses. It is not for the most part framed on clear principles, and
certainly has not been built up in times of peace by "calm thought and
discussion"; it has mostly been built up by precedents and protests and
compromises based on immediate pressure. In the second place, the body
of precedents is very scanty compared with the importance of the
interests involved. It is not like the English common law, so rich in
recorded precedents that almost any conceivable new complication between
litigant interests can be solved by analogy with some past judgment.
Every new war gives birth to new problems and complications which are
not covered by any precedents in previous wars, and have to be settled
by very imperfect analogies or by the violent stretching of some
previous rule. But the present war differs from all its predecessors to
a quite unusual degree, both because of its own vast scale and the new
methods of warfare it has introduced, and because the whole structure of
the world has been transformed since the last great body of available
precedents. What would be the condition of private commercial law at the
present day if it had nothing to go upon but one or two precedents in
1870, a few more from the time of the American Civil War, and a good
number between 1790 and 1815?
Our first great offence is our extension of the doctrine of "continuous
voyage." This doctrine was first applied on a large scale by the
Government of the United States during the Civil War; it was an
extension of previous belligerent rights, was discussed by Great Britain
and other powers, and finally accepted as legitimate. The point is a
simple one. By the old rule a belligerent has a right to prevent certain
ships and cargoes from going to the enemy; he has no right to prevent
their going to a neutral port. But suppose he finds them going to a
neutral port from which the cargoes are to be taken straight on by a
protected road to the enemy? What is the rule to be? The United States
argued that the goods were really on a "continuous voyage" or a process
of "continuous transportation" to the enemy, and could therefore be
treated just as if they were going direct to the enemy port. This
argument was generally accepted by publicists, notably by Bluntschli. It
was accepted by the International Commission which sat in pursuance to
the treaty made at Washington on May 8, 1871; and it was acted upon in
the South African War, when stores shipped to Delagoa Bay and clearly
intended for Pretoria were treated as contraband.
In the present war the extension became inevitably far wider. Germany's
own ports are closed; she proceeds to import whatever she needs by way
of Copenhagen or the Dutch ports. We assert the doctrine of continuous
voyage and treat all contraband goods shipped for Copenhagen but
obviously intended for German use just as if they were shipped for
Hamburg. Let me first illustrate this point, and then deal with a
difficulty that arises.
The cases of four ships, the _Kim_, _Alfred Nobel_, _Bjoernstjerne
Bjoernsen_, and _Friedland_, were considered between July and September,
1915, when judgment was given on all four together. The cargoes had been
seized and there were numerous claims against the British Government for
compensation. Some of these were allowed by the High Court on various
grounds, but most were rejected. The main facts were as follows. Certain
exporters, mostly American, sent to Copenhagen enormous quantities of
lard and "fat backs," which were in great demand in Germany. They
contain glycerine, which is the basis of various explosives. There is no
beast so charged with potential explosive as a fat hog. More lard was
thus sent to Copenhagen in three weeks than had entered the whole of
Denmark in the previous eight years. There are differences of detail in
the various transactions, but one company, for instance, consigned its
goods to an anonymous agent in Copenhagen, who had no address beyond a
hotel where he happened to be staying, and who proved to be their
permanent representative in Hamburg. The company a little later received
a telegram from this Hamburg agent saying, "Don't ship lard Copenhagen,
export prohibited" (i.e. export to Germany was prohibited by the Danish
Government). In other cases there were misleading descriptions oL goods
and deceptive consignments. There was not the remotest possibility of
question that the fat backs and lard were in the main meant for German
explosives. Our High Court gave the benefit of the doubt to those
claimants whose case seemed really doubtful.
So far can anyone blame us? Can any reasonable person argue that Germany
ought, by international law, to be free to import all the explosives she
liked, under the nose of the Allied fleets, by simply making them land
at Copenhagen instead of Hamburg?
But now difficulties begin. I will not spend time on the curious
argument that continuous voyage, though it applies to absolute
contraband, should not apply to conditional contraband. A compromise on
these lines had been proposed in the Declaration of London, but is
obviously illogical. Neither will I discuss the point, dear to technical
lawyers, that the doctrine of continuous voyage, though sound for
contraband, perhaps does not apply to blockade, on the ground that the
cargo may continue its journey by land and a blockade by land is not a
blockade but a siege. Such an objection, if correct, can hardly be said
to "apply the essence of international law to present-day questions."
The real difficulties of the situation lay in sifting the goods intended
for Germany from the _bona fide_ imports of Denmark and the other border
countries. Denmark, Holland, Switzerland, Norway, Sweden all had their
normal needs. They used butter and dynamite and rubber and copper and
lard and fat backs themselves, and we had no right, and certainly no
wish, to interfere with them. What were we to do? Were we to examine
every ship and sift the whole of her cargo? That would involve immense
labour, infinite waste of time, and the certainty of many mistakes. We
discussed with the various parties concerned all kinds of arrangements
by which our legitimate suppression of supplies to the enemy might be
carried out with the minimum of inconvenience to neutrals. The exact
arrangements vary in different countries, and none can be entirely
without friction, though of course our natural object is to reduce
friction to a minimum. I only wish I could make Mr. Bullard realize the
enormous amount of work and ingenuity which our officials devote to the
task of preventing incidental injustices and appeasing injured
susceptibilities.
The main methods are twofold. (1) We invite those merchants and
corporations in neutral countries who are importing goods _bona fide_
for their own country's consumption, and not for re-export to our
enemies, to sign an agreement to that effect. In most countries there is
a large union or trust which has collectively made such an undertaking,
and which endeavours to prevent breaches of the agreement by its
members. (2) We try to ascertain the _bona fide_ imports of each country
by taking the average imports of some ten previous years, and allowing
some extra amount--varying in different cases--to replace such imports
from enemy countries as may have disappeared. If these averages are
greatly exceeded--and they sometimes have multiplied themselves by ten
or twelve--we become suspicious, make further searches, and generally
find some enterprising smugglers who have broken their undertaking to us
and are consequently added to a black list. They are people who prefer
to supply the enemy; and we do not willingly, in war time, allow people
to supply the enemy, any more than the enemy, when he can help it,
allows them to supply us.
These two methods applied in conjunction are the best instruments that
we have discovered for carrying out without undue friction our
necessary, although somewhat oppressive, task. The war does impose on
neutrals a considerable amount of hardship; there is no use denying it.
And the enormous opportunities for money-making which it also affords to
a good number of traders in each country is only a poor excuse for the
general inconvenience. Still, I doubt if much improvement is reasonably
possible upon these measures which "Great Britain in concert with all
her Allies" has taken to prevent trading with the enemy through our
lines, so long as neutral states meet us in a neutral and conciliatory
spirit. When they do not, of course there is trouble. The absolute
refusal of the Swedish Government to sanction any agreement for the
purpose of determining what imports were going to the enemy and what
not, has led to much friction and mutual reprisals. And similarly in
Greece, the perpetual series of frauds and secret hostilities which have
followed the King's unconstitutional dismissal of Venizelos, his trick
upon us at Salonica, and his breach of treaty with our ally Serbia, has
produced a policy of pressure on the part of the Allies, which can be
justified only as preferable to actual war. For there is no doubt that
from the original breach of treaty onward the Greek Government has
provided us with abundant _casus belli_. But these painful controversies
are not the result of our trade policy: they are incidents of natural
friction with Germanizing courts or governments. But Mr. Bullard is for
some strange reason speechless with horror over the first of our
instruments. It seems to him a "humiliating surrender of sovereignty"
that the Dutch Government should sanction the existence of the Overseas
Trust, which undertakes, so far as overseas imports are concerned, to
trade only with one side in the war. It is a purely business
arrangement, by which certain firms who want for themselves goods
passing through the hands of one belligerent, undertake, if they receive
the goods, not to hand them on to the other.