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diff --git a/old/69710-0.txt b/old/69710-0.txt deleted file mode 100644 index 2926bea..0000000 --- a/old/69710-0.txt +++ /dev/null @@ -1,3716 +0,0 @@ -The Project Gutenberg eBook of The neutral merchant, by Francis -Piggott - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The neutral merchant - -Author: Francis Piggott - -Release Date: January 5, 2023 [eBook #69710] - -Language: English - -Produced by: deaurider, Franciszek Skawiński and the Online Distributed - Proofreading Team at https://www.pgdp.net (This file was - produced from images generously made available by The - Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK THE NEUTRAL MERCHANT *** - - - - - -TRANSCRIBER’S NOTE - -Footnotes have been moved to the end of the book and renumbered. - - The following spelling errors were fixed: - Location Was Changed to - Pg 80 the The - Pg 82 no on - Ft 6 Common Commons - Ft 8 Rgihts Rights - - The following punctuation errors were fixed: - Location Change - Pg 81 "course;" to "course," - Pg 83 "transportation." to "transportation.’" - Ft 3 Dot added at the end of footnote - Ft 7 ’ added at the end of the footnote - - All other punctuation and spelling was retained. - - - - - THE - NEUTRAL MERCHANT - - IN RELATION TO THE LAW OF - CONTRABAND OF WAR AND - BLOCKADE UNDER THE ORDER - IN COUNCIL OF 11TH MARCH 1915 - - BY - - SIR FRANCIS PIGGOTT - LATE CHIEF JUSTICE OF HONG KONG - - _Reprinted, by permission, from_ - THE NINETEENTH CENTURY AND AFTER - - UNIVERSITY OF LONDON PRESS, LTD. - - AT ST. PAUL’S HOUSE, WARWICK SQUARE, E.C. - - 1915 - - - - -These articles appeared this year in the April, August, and September -numbers of _The Nineteenth Century and After_, and I have to thank -the Editor for allowing me to reprint them so soon after publication. -They are a justification of the much-attacked Order in Council of 11th -March, 1915. - -In reply to the German submarine menace the British Government -resorted, by way of Reprisals, to a method of strangling the enemy’s -commerce which, on the one hand, was wider in its scope than any list -of contraband, and, on the other, was free from the ‘legal niceties’ -which surround a declaration of blockade. Neutral merchants declared -that it hit them hard, and the Government of the United States -protested that it exceeded the limits which international law has -placed to the right of a belligerent to interfere with neutral trade. -The British Government replied justifying its action, and there, one -would imagine, the matter should have rested for arbitration after -the War. But the Government of the United States has continued its -protests, has indeed just renewed them in most vigorous language, -desiring to deflect us, in the interests of its commerce, from a course -which must materially assist in crushing our enemy. - -It is not customary, except in one clear case, for a neutral Government -to insist that a belligerent should adopt, _in medias res_, its views -of a question which does not involve any issue of peace or war: to -press on him, _in medium bellum_, a modification of his belligerent -action which might cost him the victory. The clear case of exception -is when, philosophy at fault, there are not two sides to the question, -but one only, and that testified to by flagrant breaches of the laws of -humanity and war. Everything else is fair fighting; and for a neutral -Government, because its own commercial interests are affected, to -insist on the adoption of its view of a debateable point, to persist -that it is not debateable, to take action, in itself a violation of -international law,[1] savours of unneutral service. In the absence of -suggestion of anything but perfect good faith, in the face of much -demonstrated care of the interests of its citizens, the abandonment by -a neutral Government of the dispassionate attitude which neutrality -requires not merely heartens the enemy but must result in rendering him -material assistance. - -The United States Government, by placing England and Germany -on the same plane of protest,--the ‘lawless conduct’ of the -belligerents--has, as it seems to me, lost the true measure of -national right and wrong on which humanity must rest its laws if -civilisation is to continue. In redressing wrongs the law has never -placed injuries to life and property on the same level. A neutral -Government whose citizens have suffered in life by the action of one -belligerent, in fortune, however grievously, by the action of the -other, must yet be guided as to the manner of its protests by the -relative degree of the offences. - -Now, assuming England’s high-sea policy to be illegal, two things -appear to me clear: First, that we are entitled to claim from the -United States a consideration of the circumstances which led to the -commission of the offence of which we are accused, in order to see -whether, as Reprisals, it was not justified. The Protest of the 2nd -of April expressly refuses this consideration; it proceeds on the -assumption that Reprisals can never be resorted to against an enemy, if -the interests of a neutral trader are affected: Secondly, that, quite -apart from the Arbitration Treaty, we are justified in insisting on a -reference to arbitration after the War as the complete present answer -to the charge, for this all-sufficient reason, that on calm review it -may appear that our action is warranted by international law. There is -no indication in the last paragraph of the new Protest that this view -is acquiesced in by the United States. - -Reduced, therefore, to its simplest expression, the position taken -up by the United States is this: Our trade is of greater importance -than your victory. Admitting the hypothesis to the full that a neutral -country has no interest in the result of a war, is unconcerned which -side wins, yet I do not believe that this attitude finds any warrant -in the principles on which international law is based. But there is -another and very practical reason in favour of my second contention. -Too strenuous a protest is apt to make men look a little below the -surface of mere words, to turn their attention curiously to trade -statistics. They have been dexterously handled in the British answers. -A neutral Government is not the best judge of its merchants’ claims; -inevitably it becomes their advocate, and in the tangle of discussion -is apt to identify itself with commercial transactions which, it is -common knowledge, often need the closest investigation. The true -position of a neutral Government, the almost complete severance from -its protection of merchants who deal, however indirectly, with a -belligerent, demands, I venture with great deference to assert, an -altogether different attitude from that taken by the United States -Government. - -International law has of late been the subject of much loose talk, by -the German especially; and some colour has been lent to his assertions -by the nature of the American Protests to Great Britain. International -law does not profess to govern the conduct of belligerents between -themselves, but only the laws of war. Except in so far as these have -been incorporated in conventions, except in so far as the principles of -humanity have been reduced into concrete words and so have become laws -binding the consenting nations when they fight, it is not the province -of international law to mitigate the blows of war.[2] A neutral -Government is not concerned with the methods of warfare adopted by a -belligerent until they ape the barbarian. Then, even in the absence -of convention, it is entitled to protest in the name of our common -humanity. Conventions to which both belligerents and the neutral are -parties entitle it to support its protest by diplomatic action. But, -convention or no convention, more strenuous action is justified by the -application of elementary legal principles when its citizens, pursuing -their normal avocations, are injured.[3] International law, properly -understood, governs the relations of belligerents with neutrals. -Its sanctions are not belligerent action, nor any action against -the alleged offender, which may even indirectly benefit the enemy. -Arbitration after the War, and compensation, are the only remedies -when neutral property has been injured. Then, and only then, can the -principles of international law be calmly discussed; then, and only -then, can any new departure by a belligerent be tested by a reference -to fundamental principles. The reason is obvious. International law is -a progressive science; it has not yet pronounced its last word on the -relations between belligerency and neutrality. A neutral Government is -not entitled to assume that it alone is the judge of what that last -word will be. - -These fundamental principles have been lost sight of in the Protests -of the United States to Great Britain. Yet there never was a case in -which calm discussion was more necessary, for we have come to a point -when the question is definitely raised whether international law is -to stand still where the last war left it, or whether its principles -are sufficiently elastic to allow of their adaptation to modern -developments of the machinery of war. I say deliberately that this calm -discussion must result in the completest justification of the Order in -Council; if it does not, the doom of international law is certain. - -But the discussion which has arisen round the Order in Council has one -peculiar feature. It is, I suppose, one of the blessings resulting -from freedom of speech that our own people should criticise the action -of their Government, even when the country is engaged in a conflict -which must be fought out to the bitter end. To so much of the world -as lies beyond the shadow of the clouds of war, that little fragment -of it which is still capable of calm thinking, this curious spectacle -has been presented, that to the passionate assertions of the Central -Powers, to the dispassionate threats of the United States, there has -been added the angry criticism of our own people, in which the press -and correspondents, of high and low degree of learning, have joined -without remorse. I have looked in vain for one defender of the faith. - -Assuredly American dialectic needed no such heartening; the insistence -that the American view of international law is alone worthy to be -received needed no such support as it has had from our own people. It -is true that some of them have been inspired by the British desire -that, whate’er betide, England must fight fair. But the end which the -angry criticism had in view, and professes to have achieved, was not -this at all; it was that the Government should take other steps to -accomplish what had already been accomplished by the Order in Council, -should decline on a range of lower action, and a narrower line of legal -thought. The new Protest, in paragraph 19, does not fail to make the -point. Whatever it may be worth, the distinguished chemists, foremost -among the critics, are responsible for furnishing the United States -with the argument. - -The demand for action, so strenuously expressed, during the -Cotton-Contraband discussion, entirely ignored what the Government -had already done. There may have been cause for criticism as to the -effectiveness of executive action. I do not profess to know; but -whether this were so or not, it was not to be remedied, as it was -attempted to be remedied, by an attack on the validity of the Order in -Council. It was said that many lawyers are agreed that it was invalid. -I have ventured to present the other side for public consideration. - -A system of law, though intermittently created as occasion has -arisen, must, if it is to be taken as serious law, stand the test of -an evolutionary analysis. The doctrines of contraband and blockade -cannot stand for a moment if they are based on no principle, if they -go no further back than the commentators have carried them.[4] I -have endeavoured to show that the principle on which both are based -is the same, and is to be found in the Right of War: that both are -the inevitable consequences affecting neutral merchants who have any -relations with the enemy of the exercise of legitimate belligerent -action against him, and that they originate in, and, though varying -in the intensity of its action, are both linked with sea-power and -the efficiency of its visible agent, the Fleet. That German commerce -should have received its death-blow, that neutral merchants should have -suffered in consequence, are the natural, the inevitable results of -the command of the sea which in fair fighting in times past England has -won for herself. - -But there has been introduced into the controversy an expression, -the mere mention of which seems to send men’s minds dancing with -unreason--the ‘Freedom of the Sea.’ Very dexterously, the Germans have -substituted for it another expression, the ‘Equality of the Sea.’ In -spite of the captivating simplicity of the words, it is used with -sinister intent, in the hope to redress the inequality of the hostile -Fleets. - -If a Fleet is a legitimate weapon of offence and defence for nations -whose borders are on the sea, then the fortune of one aspect of war -between them must rest with the superior Fleet, and when war does come -the imagined equality of the sea, whether for belligerents or for -neutrals who cross the track of it, vanishes. - -The ‘freedom of the sea’ is a cry for something as inarticulate as the -other things that the wild waves are saying. It means no more, no less, -than does the freedom of the King’s highway, which is subject to a -multitude of other rights often reducing it to nothing. The ingenuous -pacifist sees in it the fulfilment of the promise that wars shall -cease. Yet if that and all the other fanciful ideas which have gathered -round it--the ‘neutralization of the sea,’ for example--come to -prevail, wars will indeed cease, but in a way the pacifist least dreams -of. Hidden in that imagined ‘freedom,’ and the ‘rules’ which have -been suggested to ensure it, lies the power of the Strong to make one -final war upon the Weak on land, and the end of it the annihilation of -the Small Nations; for it means this, that when they are attacked they -must defend themselves without help in munitions of war from neutral -merchants across the sea. - -The ‘freedom of the sea’ is not even complete in time of peace, for it -may not be set up by those who have violated the laws of the nations -which border its shores. But when war comes the ‘freedom of the sea’ -must give way to the rights of war; and no one dare _now_ deny that to -declare war may be a sacred right, to decline the gage of battle an -infamy. The only freedom that remains, and even this is curtailed by -the right of search, is that of neutral merchants to carry on their -trade with one another unmolested, so long as it does not deliberately -enmesh itself in the lines and areas of battle. But it must never be -forgotten that the United States is not vindicating the simple right of -neutral nations to trade with one another untrammelled by belligerent -action. It maintains, and all the struggles of its advocacy are -devoted to establishing this proposition, that ‘innocent shipments may -be freely transported to and from the United States through neutral -countries to belligerent territory.’[5] Here, then, is the whole -matter ‘bounded in a nut-shell.’ It is admitted that a belligerent -may forcibly prevent _all_ goods going from a neutral directly to the -enemy: it is admitted that he may also prevent certain specified goods -(called ‘contraband of war’) going from a neutral indirectly (that -is, through another neutral country) to the enemy. The United States -protests that international law ends with these two propositions: that -there is no underlying principle linking the two admissions, making -them only two illustrations of a larger fact: that there is a chasm -between them that can never be bridged, even though not merely the -conditions of war, but also the constitution of armies have changed: -that international law must stand at the point it reached ten years -ago, and a belligerent stand passively by while neutral merchants -sustain the enemy with the things which give him life to continue the -fight. - -The mere statement of the dispute shows that the calm of a High -Tribunal of Arbitration is the only atmosphere conducive to its just -discussion. - -That right of war upon the sea, as well as that pure right of neutral -traders upon the sea, the Mistress of the Seas must steadfastly -maintain, for she holds them in trust for the nations and may not -barter them away. Above all, she must know her own mind as to what -that right is. She has spoken with full knowledge, and, as I believe, -rightly. It would be a grievous blow to her prestige if she were now -to abandon the position she has taken up. I cannot imagine such an -abandonment to be even dreamed of.[6] - - * * * * * - -The scheme of these articles is as follows. In the first, published -before the American Protest of the 30th of March was received, I have -dealt with the principal points in the early American Notes to Great -Britain and Germany, and have traced a process of evolution to which -all the principles of contraband and blockade, as we used to know them, -do in fact conform. In the second, after combating Mr. Norman Angell’s -project for the neutralization of the sea, I have shown how this -process of evolution warrants, by a legitimate process of development, -the practice laid down by the Order in Council. In the third, I have -applied these principles to the discussion to which the Government -yielded when it put cotton on the list of contraband. - -Two questions lie altogether outside the scope of the articles. First, -the policy which, prior to the issue of the Order, refrained from -making cotton contraband. Secondly, the policy which guides executive -action in carrying out the Order. They deal simply with the Order as -it stands, not with the method of its enforcement. - - * * * * * - -I have, for the greater stability of my edifice, used the reinforced -concrete of the logic and arguments which Sir William Harcourt -created in the famous, but almost forgotten, ‘Letters of Historicus,’ -incorporating in the footnotes more extended quotations from those -Letters. In a few instances I have added a paragraph to the articles as -they originally appeared, for the sake of greater clearness. - -I trust that the manner in which I have set forth what I conceive to -be the true law of the dispute will give no offence to my friends in -the United States. I am sure it will not, for some who took part in -the Behring Sea Arbitration are still among the Minority, and they -will remember that those discussions did not want for strenuousness -with Phelps of counsel for the United States, and Charles Russell for -England. - - _F. T. P._ - - _November, 1915._ - - - - - CONTENTS PAGE - - INTRODUCTION v - - I. THE NEUTRAL MERCHANT: THREE AMERICAN NOTES - AND THE ANSWERS 1 - - II. THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF - THE SEA’ 49 - - III. COTTON AS CONTRABAND OF WAR 95 - - - - -THE NEUTRAL MERCHANT - - - - -I - -_THE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS_ - - [_April 1915_] - - The ‘Letters of Historicus’--General Position of the Neutral - Merchant--Use of Neutral Flags by Merchantmen to Escape Capture or - Destruction--First American Note to Great Britain--British Interim - Reply--The Complete Reply--First American Note to Germany--German - Reply--Evolution of the Doctrines of Contraband of War and - Blockade--Meaning of Neutrality--Contraband of War--Conditional - Contraband--Declaration of Paris as to Freedom of Neutral Goods and - of Enemy Goods under Neutral Flag--Prize Courts--The Conflicting - Rights of Neutral Merchants and of Belligerents--The Right and Duty - of Search--Doctrine of Continuous Voyages--Embargo--Blockade--The New - Policy of the British Government--Foreign Enlistment--Proclamations of - Neutrality. - - -The intellectual barometer stands at ‘Hazy’ on the subject of -neutrality, even in this country. In Germany it has ceased to register -anything which even pretends to be intelligent. In the United States -there are what might aptly be called cyclonic and anti-cyclonic -disturbances. If my view as to English knowledge of the subject be -questioned, I would ask my readers how often they have of late met -in the newspapers the phrase ‘duties of neutrals,’ and what answer -they have found to the inevitable query, ‘Which be they?’ Within -the last few weeks I read a contribution to _The Times_ from ‘A -Legal Correspondent,’ in which these duties were referred to in most -bewildering fashion. He said that there existed special bonds between -this country and the United States; that both have stringent Foreign -Enlistment Acts; that both agree to what are known as the ‘Three Rules’ -of the Washington Treaty as to the duties of neutrals, and that both -had promised to bring these Rules to the notice of other States. This -statement was painfully misleading; the ‘Three Rules’ were agreed to -as the basis on which the Alabama arbitration was to be decided, and -related solely to the subject known as ‘Foreign Enlistment.’[7] But if -by ‘duties of neutrals’ is meant, as I presume to be the case, the -duties of neutral Governments, they can be summarised in one great -negative--to do nothing, except when they are called on to defend their -neutrality against the action of either belligerent, _inter alia_, -in the cases provided for by the Hague Convention of 1907 relating -to neutrality. So far-reaching is this universal negative that it -includes non-interference with their merchants in their dealings with -belligerents.[8] If, however, the term refers to duties of neutral -merchants, then it is inapt and misleadingly inaccurate; for the -existence of any such general duty as to cease trading, for which the -Germans are so strenuously contending, is wholly imaginary. - -Fifty years ago another continent was riven with war, and there was -much talk of what a neutral might do, and might not do; and there -appeared in _The Times_ a series of letters signed ‘Historicus,’ in -which, among other things, the elementary principles of neutrality were -very strenuously and very lucidly set forth. Very strenuously, for -there was a certain M. Hautefeuille who had filled the world--like the -Dernburgs of to-day--with much unsound doctrine. Now unsound doctrine -was a thing which stirred Mr. Vernon Harcourt to the depths of his -soul, and those only who have heard him know what waves of wrath surged -up in his brain. He had the art of transferring to paper the billowy -language he was wont to use; and as you read you hear the rotund -sentences rolling onwards to swamp the frail bark of his adversary. -But he had another art: of clear thinking and lucid exposition. In the -series of Whewell Lectures which I attended at Cambridge in the year of -grace ----, of which I still preserve my notes, he seemed to make plain -the whole mystery of Public International Law. New times have produced -new teachers of the old heresies; and it is good to turn once more to -the pages of the ‘Letters of Historicus,’ for again the neutral nations -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.’ -To adapt his references[9] to Burke and Canning to himself, ‘I would -that we had yet amongst us his multitudinous eloquence and his poignant -wit to do justice upon this presumptuous sciolism’ of the German -Foreign Office. The world, indeed, seems still to need his teaching. -From what one hears in the market-place I gather that there is a vague -feeling in the air that our case is not _quite_ so good as we should -like it to be; that there is a mysterious crevice in our armour-joints -through which, if not the German, at least Uncle Sam has pricked us. -There is a nebulous ‘something’ about neutrality, especially about -‘neutral duties,’ which seems to preclude accurate thinking; and even -the ‘Legal Correspondent’ does not always pierce the haze. So the -student, in memory of an hour spent after lecture in his master’s rooms -in Neville’s Court, when kindly patient, and so lucidly, he expounded -to him the meaning of a difficult decision, will endeavour to weave -into a continuous whole the threads of the doctrine which he taught. It -is not that people do not know; only that they forget. - - * * * * * - -The neutral merchant is the centre round which the principal doctrines -of international law dealing with neutrality have gathered. It seems -strange at first that in time of war the commercial rights of a mere -money-making civilian should invariably form the subject of endless -discussions; but this civilian really holds a very important position -in the waging of war; it could not go on without him. Each belligerent -has need of him, and it is essential to each to prevent the other -from satisfying that need. To block the enemy’s communications with -the neutral merchant is one of the surest ways of ending the war. To -this end many ingenious things have been devised, and as many equally -ingenious to counteract them; and in this the merchant’s fertile -brain has materially assisted. The problem is a 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. As for the neutral merchant -himself, he is calmly indifferent to the merits of the fight; nothing -pleases him so much as to be ‘Jack of Both Sides.’ He will take all he -can get from one side and cry out for more from the other. When the -War is over we may muse philosophically on some aspects of the Protest -which the United States Government has addressed to Great Britain on -behalf of its merchants; for the present, with all its serious issues -hanging in the balance, the American Notes require careful study, for -they themselves raise an issue as serious as any which the War has -raised--whether Great Britain has been true to the principles she has -so often preached, or whether the German accusation, or the American -suggestion, that she has violated them can be substantiated; whether, -when all is over, we shall be able to say proudly that it has been War -with Honour. - - -_The Use of Neutral Flags by Merchantmen_ - -Two Notes have been addressed to Great Britain, and it will be -convenient to refer at once to the second Note, which deals with -the use by our merchantmen of neutral flags. The neutral merchant -is directly concerned with this custom of the sea, for he may have -cargo on board, and if this means of deceiving the enemy’s warships -is declared to be illegal he runs the chance of its being sent to the -bottom. - -The facts which gave rise to the Note are of the simplest. On the 30th -of January two German submarines appeared off Liverpool, and, giving -the crews ten minutes to take to the boats, torpedoed and sank some -British merchant vessels. On the 6th of February the _Lusitania_, -coming up the Irish Channel at the end of her voyage from New York, -hoisted the Stars and Stripes and came safely to harbour. To these -simple facts are to be added, according to the German version, that the -Admiralty advised the master by wireless to hoist the American flag; -or had issued a secret order to merchant ships in general to hoist a -neutral flag in the circumstances. Whether these facts are accurate -or not is absolutely immaterial; but the Germans have based on them -the charge of violation of international law. It should be noted with -surprised wonder that the German Admiralty seems to have forgotten -that the _Emden_ sailed into Penang harbour flying the Japanese ensign, -and that this, added to her other disguises, enabled her to accomplish -her raid successfully.[10] The United States Government, having been -appealed to by Germany, addressed a Note to Great Britain, to the great -jubilation of her adversary; for she had just planned the infamy of -her new piracy, and the smart of the thrashing administered to herself -was somewhat mitigated by the fact that the other boy got a ‘wigging’ -too. The position of the United States is so delicate, her diplomatic -officers have achieved so much, her people have done and said so many -things that have gone to our hearts, that it is impossible to be -querulous at the presentation of the Note; yet, when it is analysed, it -seems to go far beyond what was necessary to the occasion, and it has -enabled Germany to confuse, in her usual clumsy fashion, the _post_ and -the _propter_ in the sequence of events. - -The Government of the United States reserved for future consideration -the legality and propriety of the deceptive use of the flag of a -neutral Power in any case for the purpose of avoiding capture; but -pointed out that the occasional use of the flag of a neutral or of an -enemy under stress of immediate pursuit, and to deceive an approaching -enemy, was - - a very different thing from the explicit sanction by a belligerent - Government for its merchant ships generally to fly the flag of a - neutral Power within certain portions of the high seas which, it - is presumed, will be frequented with hostile warships. A formal - declaration of such a policy for the general misuse of a neutral’s - flag jeopardises the vessels of a neutral visiting those waters - in a peculiar degree by raising the presumption that they are of - belligerent nationality, regardless of the flag they may carry. - -The Note declared that the United States would view with anxious -solicitude any such general use of its flag; it would afford no -protection to British vessels, it would be a serious and constant -menace to the lives and vessels of American citizens, and a measure of -responsibility for their loss would be imposed on the Government of -Great Britain. - -The reply of the British Government was short and to the point. It -dwelt on the fact that the Merchant Shipping Act sanctions the use of -the British flag by foreign merchantmen in time of war for the purpose -of evading the enemy; that instances are on record when United States -vessels availed themselves of this facility during the American Civil -War, and that, therefore, it would be contrary to fair expectation if -now, when the conditions are reversed, the United States and neutral -nations were to grudge to British ships liberty to take similar action. -‘The British Government,’ it continued, ‘have no intention of advising -their merchant shipping to use foreign flags as a general practice, or -to resort to them otherwise than for escaping capture or destruction.’ -Finally, the responsibility for the loss of neutral vessels in -such circumstances must fall on the nation which had deliberately -disregarded the obligations recognised by all civilised nations in -connexion with the seizure of merchant ships. - -It is clear that the American Note had special regard to the future, -and expressed no opinion as to what had occurred in the case of the -_Lusitania_. Now she did not fly the American flag to escape capture, -but to escape the probability of being unlawfully sunk by a German -submarine; for, in view of what had already happened off Liverpool, it -is more than probable that a submarine was in lurking for her; to judge -from the German irritation at her escape, it is practically certain. -What she did, therefore, was in self-defence, and even unlawful things -become lawful when they are done to escape extreme danger. The Note -refers to the use of a neutral flag to escape capture, the reply -justifies it, and the Merchant Shipping Act sanctions it. But, seeing -that capture by the enemy is equivalent to destruction, quite apart -from the methods of the new piracy, there can be no doubt that the -principle of self-defence covers this case also. Self-defence is a -natural law which has been embodied in all legal systems, and Nature -has sanctioned it as a special plea. ‘Protective coloration’ is the -device by which she defends the weak from the unscrupulous strong; -it is ‘mimesis,’ a mimetic change, which Nature not only approves in -the case of actually hunted animals, but also and mainly devises for -those which are likely to be hunted. So the analogy is complete, and -the change of her ‘colours’ by the _Lusitania_ to escape the lurking -danger of the submarine stands justified by both natural and human law. -I prefer this explanation to the theory of the _ruse de guerre_. - -By a _ruse de guerre_, or stratagem of war, I understand the adoption -of some means of deceiving the enemy in war, some device out of -the ordinary course of fighting. The old adage that ‘all is fair -in love and war’ is not strictly true, for some stratagems are not -unjustifiable in war, and some are. The _Emden_, when she rigged up a -fourth funnel, so making believe she was some other ship, resorted to -a legitimate stratagem which had unfortunate results for our Allies’ -ships in Penang harbour. The German soldiers who put on our dead men’s -uniforms also resort to a stratagem; but we are fastidious in our -methods of fighting, and do not admit that this is ‘playing the game’ -of war. But, whether legitimate or illegitimate, these are _ruses de -guerre_; and the term is hardly applicable to a stratagem adopted by -a non-combatant to avoid an unlawful trap set by the enemy for his -destruction. - - -_The First American Note to Great Britain_ - -I pass now to the more serious matter of the Note of friendly protest -of the 28th of December, which was an amplification of one already -presented on the 7th of November. It opens with the declaration that -the present condition of the trade of the United States, resulting -from frequent seizures and detentions of cargoes destined to neutral -European ports, has become so serious as to require a candid statement -of the view of the United States Government that the British policy is -an infringement of the rights of its citizens, and denies to neutral -commerce the freedom to which it is entitled by the law of nations. An -improvement had been confidently awaited on account of the statement -of the Foreign Office that the British Government ‘were satisfied with -guarantees offered by the Norwegian, Swedish, and Danish Governments -as to the non-exportation of contraband goods when consigned to named -persons in the territories of those Governments.’ But although nearly -five months had passed since the War began, it was a matter of deep -regret to find that the British Government - - have not materially changed their policy and do not treat less - injuriously ships and cargoes passing between neutral ports in the - peaceful pursuit of lawful commerce which belligerents should protect - rather than interrupt. The greater freedom from detention and seizure - which was confidently expected to result from consigning shipments to - definite consignees rather than ‘to order’ is still awaited. - -The general principle is then laid down that, ‘seeing that peace, and -not war, is the normal relation between nations,’ - - the commerce between countries which are not belligerents should - not be interfered with by those at war unless such interference is - manifestly an imperative necessity to protect their national safety, - and then only to the extent that it is a necessity. - -But articles on the list of absolute contraband consigned to neutral -countries from America have been seized and detained ‘on the ground -that the countries to which they were destined have not prohibited -the exportation of such articles.’ Italy had prohibited the export of -copper, and shipments to Italian consignees or ‘to order’ cannot be -exported or transhipped; copper can only pass through that country if -it is in transit to another country. Yet the British Foreign Office had -‘declined to affirm that copper shipments to Italy will not be molested -on the high seas.’ - -In the case of conditional contraband there is a presumption of -innocent use when it is destined to neutral territory; yet the British -authorities had seized and detained cargoes without - - being in possession of facts which warranted a reasonable belief that - the shipments had in reality a belligerent destination as that term is - used in international law. Mere suspicion is not evidence, and doubts - should be resolved in favour of neutral commerce, not against it. - -Cargoes had, in fact, been seized ‘because of a belief that, though -not originally so intended by the shippers, they will ultimately -reach’ the enemy. A consignment of conditional contraband shipped to a -neutral port does not raise a presumption of enemy destination; such -a presumption is directly opposed to Lord Salisbury’s statement, made -during the South African war, as to foodstuffs (equally applicable -to all conditional contraband) which, ‘though having a hostile -destination, can be considered as contraband only if they are for -the enemy forces. It is not sufficient that they are capable of -being so used. It must be shown that was in fact their destination -at the time of their seizure.’ As to concealed contraband, it is -conceded that there is a right to detain neutral ships when there is -sufficient evidence to justify belief that contraband articles are -in their cargoes; but the ships cannot be taken into port and there -detained ‘for the purpose of searching generally for contraband, or -upon presumptions created by special municipal enactment which are -clearly at variance with international law and practice.’ Many of the -industries of the United States are suffering ‘because their products -are denied long-established markets in European countries which, though -neutral, are contiguous to the nations at war.’ The effect on trade -is not entirely cured by reimbursements for damages suffered when an -enemy destination has not been established; ‘the injury is to American -commerce as a whole through the hazard of the enterprise and the -repeated diversion of goods from established markets.’ - -Resolved into its simplest expression, the complaint is a criticism of -the way in which the doctrine of ‘continuous voyages’ has been applied -by the British Government; but there is also a veiled criticism of the -doctrine itself; and, by way of further complaint, it is pointed out -that the embargoes which have been declared in certain countries have -proved insufficient to prevent the doctrine being applied. As to the -principle asserted that doubts are to be resolved in favour of neutral -commerce, it has no warrant in common sense, for it puts a premium on -the neutral merchant’s ingenuity, an ingenuity which has itself given -rise to the doctrine of ‘continuous voyages.’ Seeing that commerce is -in the balance against a nation’s existence, the doubt must obviously -be resolved in favour of the more important consideration. The Note is -also open to the general criticism that it is based on the position -of the vendor and ignores the purchaser. But the true criterion of -destination must often be found in the intentions of the neutral -purchaser of which the neutral vendor may be ignorant. - -An interim reply was sent by the British Government on the 7th of -January. It begins with a cordial concurrence in the general principle -that a belligerent should not interfere with trade between neutrals -unless such interference is necessary to protect the belligerent’s -national safety, and then only to the extent to which this is -necessary; with this qualification, however, that - - we shall endeavour to keep our action within the limits of this - principle, on the understanding that it admits our right to interfere - when such interference is, not with _bona-fide_ trade between - the United States and another neutral country, but with trade in - contraband destined for the enemy’s country, and we are ready, - whenever our action may unintentionally exceed this principle to make - redress. - -The figures showing the export of copper from the United States in -1913 and 1914 to Italy, Sweden, Denmark, and Switzerland (‘countries -which, though neutral, are contiguous to the nations at war’) are then -compared, and their astonishing increases duly noted. The conclusion -is very clear. - - With such figures the presumption is very strong that the bulk of the - copper consigned to these countries has recently been intended not - for their own use, but for that of a belligerent who cannot import it - direct. - -Granted the soundness of the American proposition, the British case -falls within it; the ‘imperative necessity for the safety of the -country’ has arisen. As to concealed contraband the case is even -clearer. Cotton is not on the list of contraband. But information has -reached the Government that ‘precisely because we have declared our -intention of not interfering with cotton, ships carrying cotton will -be specially selected to carry concealed contraband; and we have been -warned that copper will be concealed in bales of cotton.’ For this -there is only one remedy: the cargo must be examined and the bales -weighed; further, this cannot be done at sea, therefore the ship must -be brought into port. The general justification of the action of the -British Government is couched in these weighty words, which go to the -foundations of the whole law of contraband and the right of search: -‘We are confronted with the growing danger that neutral countries -contiguous to the enemy will become, on a scale hitherto unprecedented, -a base of supplies for the armed forces of our enemies and for -materials for manufacturing armament.... We endeavour, in the interest -of our own national safety, to prevent this danger by intercepting -goods really destined for the enemy, without interfering with those -which are _bona-fide_ neutral.’ - -The extraordinary procedure adopted by the United States Government of -_prohibiting_ the publication of manifests within thirty days after -the departure of vessels from American ports, obviously increased the -difficulties of the British Government in exercising its right of -search even in the most ordinary circumstances. If I am right in my -view that the duty of neutrals is to do nothing, for the simple reason -that any action may be of assistance to one of the belligerents, it -must be confessed that this order comes perilously near to a breach of -neutrality. - -The reply deals also with the seizure of foodstuffs, but it is -unnecessary, in view of subsequent action taken in regard to them, to -refer to this part of the document. It also mentions a somewhat unusual -complaint, not included in the American Note, of our own embargo on -rubber, imposed in consequence of a new trade in exporting rubber -from the United States in suspiciously large quantities to neutral -countries, which had sprung up since the war. The complaint is not very -intelligible, because it looks at embargo from the wrong point of view. -The right point of view is explained later in this article. - -The full reply of the British Government was dated the 10th of -February. It contained the very important declaration that our action -against neutral vessels ‘has been limited to vessels on their way to -enemy ports or ports in neutral countries adjacent to the theatre of -war, because it is only through such ports that the enemy introduces -the supplies which he requires for carrying on the war.’ In other -words, the importance of the doctrine of ‘continuous voyages’ at the -present time is emphasised; and its necessity is demonstrated by -a further review of trade statistics, which led to the inevitable -conclusions ‘that not only has the trade of the United States with the -neutral countries in Europe been maintained as compared with previous -years, but also that a substantial part of this trade was, in fact, -trade intended for the enemy countries going through neutral ports by -routes to which it was previously unaccustomed.’ - -But even more important is the opinion deliberately expressed that -international law, like every other judge-made law, is a live body of -principles which can and must keep abreast of the times. Its rules -are not arbitrarily devised as occasions arise, but are based on -principles which have developed with the progress of the world. Any -apparent changes in the law which Great Britain has introduced are not -arbitrary inventions which have in view merely the crushing of Germany, -but are justified by well-known principles applied to new conditions. -The process of adaptation is no new one. The advent of steam-power had -a notable influence on the development of the law, for the facilities -introduced by steamers and railways, while they simplified the task -of the neutral merchant in contraband, had enormously magnified the -difficulties of the belligerent. - -The question in issue can be stated in almost primitive fashion. Are -the rules which governed the rights of belligerents when there were -no railways, to govern them when the transit of contraband over the -frontier of a neutral and a belligerent State has been made so easy? -The answer is not an absolute negative; it is that the old principles -are living principles and are capable of extension to meet the new -occasions. - -But to explain the reasons for a step which has already been taken -and to find sound reasons for a step which has to be taken are two -different things. The first requires reasoning power, the second -imagination; and I find this in the position boldly taken up and -courageously insisted on, that the growth in size of ocean liners has -rendered a further amplification of the old rules necessary. They must -be brought into port for examination. - -The American loves the cut and thrust of argument, and must at once -have acknowledged that the reference to the fact that the doctrine of -‘continuous voyages’ originated with the Judges of the United States -was not a _tu quoque_, but a brilliant illustration of the principle of -development of the law. It is abundantly clear from every paragraph of -this remarkable reply that this doctrine has become the one principle -worth fighting for now, for our national safety depends on it. And -the American will appreciate the delicacy of the compliment which can -find no stronger arguments than those used by the Judges of the United -States Prize Courts when they established it. - -The earlier American Note of the 7th of November had contended that -‘the belligerent right of visit and search requires that the search -should be made on the high seas at the time of the visit, and that the -conclusion of the search should rest upon the evidence found on the -ship under investigation, and not upon circumstances ascertained from -external sources.’ But the major premiss is that the actual destination -of the vessel to the neutral port may be merely a cloak for the real -destination of the cargo to the enemy; and the citation from the -judgment in the case of the _Bermuda_[11] is a complete answer: - - The final destination of the cargo in this particular voyage was - left so skilfully open ... that it was not quite easy to prove, - with that certainty which American Courts require, the intention, - which it seemed plain must have really existed. Thus to prove it - required that truth should be collated from a variety of sources, - darkened and disguised; from others opened as the cause advanced, - and by accident only; from coincidences undesigned, and facts that - were circumstantial. Collocations and comparisons, in short, brought - largely their collective force in aid of evidence that was more direct. - -To introduce the rigid rules of evidence necessary to a common-law -action in a question which is not a lawsuit at all, but an inquiry, -would obviously cripple the effectiveness of the doctrine of -‘continuous voyages’; the occasions with which that doctrine deals have -by force of circumstances become the most important source of supply -of those commodities which a belligerent must at all hazards prevent -his enemy obtaining. And if we go back to the root-principle, that the -whole law and every part of it depend on the right of self-defence, no -stronger argument is necessary to justify the principle laid down in -this case, nor for the provisions of the Order in Council of the 29th -of October, which throw the burden of proof of his innocence on the -neutral owner of contraband. - - -_The First American Note to Germany_ - -I now come to the Note to Germany of the 12th of February, delivered -in consequence of the notification of her under-sea policy, and for -which ‘Warning’ is the only appropriate term. The statement of the -principles set at defiance is introduced by the satirical formula ‘It -is unnecessary to remind,’ the whole object of the Note being to remind -the German Government that the interference with the freedom of the sea -is limited to search and blockade, and that in the absence of effective -blockade the belligerent nationality or contraband character of the -cargo must be determined before a vessel may be destroyed. - -To this Note came the German reply which set forth England’s iniquities -and violations of international law, which were in startling contrast -to the scrupulous observance of ‘valid international rules regarding -naval warfare’ by Germany. There is a complacent reference to the -American Note to Great Britain of the 28th of December, which sets out -the details of our iniquities ‘sufficiently, though not exhaustively’; -but the main interest of the document is its method of dealing with -the duties of neutral States towards Germany. - - Neutrals have been unable to prevent the interruption of their - commerce with Germany, which is contrary to international laws. - - Germany is as good as cut off from her overseas supply by the silent - or protesting toleration of neutrals not only in regard to such - goods as are absolute contraband, but also in regard to such as, - according to the acknowledged law before the war, are only conditional - contraband or not contraband at all. Great Britain, on the other hand, - is, with the toleration of neutral Governments, not only supplied with - such goods as are not contraband or only conditional contraband, but - with goods which are regarded by Great Britain, if sent to Germany, - as absolute contraband--namely, provisions, industrial raw material, - etc.--and even with goods which have always indubitably been regarded - as absolute contraband. - -There follows a reference ‘with greatest emphasis’ to the enormous -traffic in arms which is being ‘carried on between American firms and -Germany’s enemies’; after which come two sentences most typical of -German occultness: - - Germany fully comprehends that the practice of right and toleration of - wrong on the part of neutrals are matters absolutely at the discretion - of neutrals and involve no formal violation of neutrality.... If it - is the formal right of neutrals to take no steps to protect their - legitimate trade with Germany, and even to allow themselves to be - influenced in the direction of conscious wilful restriction of their - trade, on the other hand, they have a perfect right, which they - unfortunately do not exercise, to cease contraband trade, especially - in arms, with Germany’s enemies. - -The involutions of these astonishing sentences are worthy of the White -Queen at her best, and it is quite a difficult exercise to arrive at -their meaning. So far as I have been able to get at it, it is something -like this:--Trade is free; you neutral merchants have a right to trade -with Germany as with Great Britain; why don’t you? That would be the -‘practice of right.’ Germany has as much right to have you trade with -her as Great Britain has; why do you deny her that right? You allow -yourselves rather ‘to be influenced in the direction of conscious -wilful restriction’ (in other words, you submit to having your cargoes -seized by Great Britain). Of course you have the right to take no -steps to protect your legitimate trade with Germany, and you take none -(in other words, you refuse to resist the seizures of your cargoes by -force); that is ‘the toleration of wrong.’ And so you cease to trade -with Germany. But you have also a perfect right to cease trading in -contraband (especially in arms) with Great Britain. Why don’t you? In -her case you do not allow yourselves ‘to be influenced in the direction -of conscious wilful restriction.’ To all of which the neutral merchants -reply: When you begin to make an appreciable attack upon our trade with -Great Britain and seize our cargoes, then you may be sure that we shall -be influenced ‘in the direction of conscious wilful restriction’ of -that trade also. But until that time arrives, we regret that we cannot -take the risk of having to run the gauntlet of the British Fleet. In -all seriousness these mysterious sentences mean no more than that -Germany has lost such influence upon the sea as she ever had, and the -neutral merchant has made a note of it and governs himself accordingly. -Therefore the traffic in arms, in spite of her pathetic protests, must -go on. - - -_THE EVOLUTION OF THE DOCTRINES OF CONTRABAND OF WAR AND BLOCKADE_ - -So much for the Notes and the Answers, and I pass to the realm of -international law.[12] In a recent debate in Parliament a noble Lord -suggested that, in view of German disregard of it, we need not be ‘too -fastidious’ in our application of its principles.[13] Even at the best -of times, before war shook things to their foundations, the layman was -disposed to look on it as a thing of shreds and patches. I am sure -he would be surprised to hear that the principles are coherent, and -that there is a thread of simple common-sense running through all the -various doctrines. The fate of the Empire depends on the action which -the Government takes on these important questions, its honour on this -action being strictly in accordance with the law which the nations have -agreed to. I make no apology, therefore, for treading once more the -well-beaten track, for I take it that it is the business of the good -citizen to know what he is talking about, and in order to help him I -shall begin at the very beginning. And the beginning is War. - - -_The Meaning of Neutrality_ - -At the outbreak of war the nations are divided into two classes: those -that are fighting and those that are not. To give them their scientific -names, they are belligerents and neutrals. With the laws of war I do -not concern myself, but only with those principles by which neutrals -are supposed to govern themselves in order to avoid being swept into -the vortex. - -The only means by which this most desirable object can be achieved is -by steadfastly bearing in mind the natural consequence of meddling -in other people’s frays. It gives rise to the very simple maxim ‘He -who joins himself to my enemy makes himself my enemy and may be -treated as such.’ For the world’s peace the doctrine ‘He that is not -with me is against me’ finds no place in the maxims of nations. Now -there is a root-principle of neutrality, and if it is once let go all -the subordinate principles will fly off and become isolated bodies -careering through intellectual space, and doing an incalculable amount -of damage. This principle is, that neutrality is a state appertaining -to the Governments of the non-belligerent countries, and to the -Governments alone. Azuni says[14] that ‘the state of neutrality is not, -nor can be, a new state, but a continuation of a former one, by the -Sovereign who has no wish to change it.’ But neutrality has nothing -whatever to do with the individual, and all the puzzles which confuse -the public mind arise from the fact that the word ‘neutral’ is applied -indiscriminately to Governments and to individuals. The importance of -appreciating this is manifest, for if it is unsound the German case, -in which the contrary doctrine appears and reappears over and over -again, is right; if it is sound that case tumbles to pieces. It is -the persistence with which the German Foreign Office has dragged the -opposite contention in by the heels on every possible occasion which -makes it so necessary to insist on the recognition of this principle. -The burden of its reply to the United States, the condition on which -Germany will abandon its evil under-water practices, is that this -principle should be given up, and the neutral trade in arms with its -enemies declared illegal. If it could be thought for a moment that the -United States was likely to be beguiled into abandoning it, then the -peace of the world would indeed be in jeopardy. But, unfortunately for -the Germans, the Americans know full well what the principle means, and -the place it holds in the international system, for them to give even -the slightest hint that this is possible. - -What, then, does neutrality mean? That the Government of a -non-belligerent State must do nothing to assist either belligerent, -by providing him with arms, or ships, or men, or money. It is not -difficult to understand why neutrality is not applicable to the -individuals of the non-belligerent States. Nations subsist by -international commerce, and there is no reason why, because two of -them go to war, all their trade with the others should be declared -illegal.[15] Therefore we get at once to this axiom, that war does not -affect neutral trade with either belligerent, but the merchants in -neutral countries are entitled to carry on business with them. And so -the neutral merchant makes his first appearance on the scene. - - -_Contraband of War_ - -But to adopt the language of the day, _Krieg ist Krieg_; and if the -neutral merchant has rights so also have the belligerents, and the -doctrine of contraband of war gives expression to them, though few -doctrines have been so loosely put into words. I think I am fairly -stating the prevalent and mistaken opinion when I put it thus: that -it is a breach of neutrality to trade in contraband, and that it is -the duty of a neutral State to prevent its subjects from so trading. -The Germans, in insisting on this popular idea, are juggling with the -word ‘neutrality,’ and they do so in a way which is almost pathetic; -yet their version of what they are pleased to call ‘true neutrality’ -is so near to plausibleness that I must be at pains to elaborate the -real principle. A belligerent has a perfect right to apply the maxim -‘Who helps my enemy becomes my enemy’ to the neutral merchant. But -seeing that he is an unarmed civilian he cannot be made to fight. -The remedy against him is therefore confiscation of his goods. The -special way in which the merchant can help the enemy is by supplying -him with munitions of war and other means of carrying on the fight. In -order that there may be no mistake a more particular list of things -which help the enemy is made out, called ‘Contraband of War.’ Now the -belligerent has no right, much less any power, to prevent the merchant -from selling these things to his enemy; but he gives him fair warning -that if he sends them by sea cruisers will be on the look-out for his -vessels, and they will be detained and searched and the contraband -cargo seized. If the merchant turns to his Government and invokes its -protection, talking about the ‘freedom of the sea’ and the ‘common -highway of the nations,’ he will get for only answer, ‘The threat is -justified and I cannot help you. You are assisting the enemy and must -take your chance. I cannot prevent you taking that chance, nor can I -order you to forbear, for then I should be interfering in favour of -the other belligerent, and that would be a breach of neutrality on my -part. All I can do for you is to see that you get fair play if you -are caught, and proper damages if you are innocent.’ So now we get -to the law in its first shape: the neutral merchant is free to carry -on his trade with either or both belligerents to any extent, in arms -or in anything else; but if he trades in contraband of war he takes -the risk of losing his cargo. The justification for the rule can be -put in simplest language. The belligerent has obviously no right, -merely because he is at war, to order neutral merchants not to carry -contraband to the enemy, nor even to expect that they will not. Neither -can he insist that the neutral merchant’s Government should intervene -on his behalf, and so commit a breach of neutrality towards the other -belligerent. - - * * * * * - -Certain subsidiary questions arise at this point. First, the familiar -distinction between absolute and conditional contraband. This follows -in direct sequence from what has already been said. The belligerent -is not fighting the civil population, but only the enemy Government -and its forces. This compels him to interfere with neutral trade in -everything that enables that Government to maintain its forces. But how -to draw the line between things destined for the civil population and -those destined for the forces, for things destined for the civilian may -be serviceable to those forces, and may, in fact, be used by them. - -The broad principle governing conditional contraband was stated by -Lord Salisbury in the _dictum_ as to foodstuffs already referred to. - -This principle was adhered to by us during the early months of the -War, and was expressly referred to as having guided our action in Sir -Edward Grey’s interim reply, of the 7th of January, to the American -Note. But the War has revolutionised many ideas, and among them those -which had led to the adoption of this principle by Great Britain in -the face of the opposing contentions of other countries in the past, -notably France and Germany. In his final reply to the Note, sent on the -10th of February, Sir Edward Grey frankly stated that ‘in the absence -of some certainty that the rule would be respected by both parties to -this conflict, we feel great doubt whether it would be regarded as an -established principle of international law.’ Further, he pointed out -certain new features in the circumstances in which the War was being -waged which tended to show that an adherence to the old principle -would be an unjustifiable restriction on our power of striking the -enemy--(_i_) the existence of an elaborate machinery for the supply of -foodstuffs for the use of the German army from overseas; (_ii_) the -practical disappearance of the distinction between the civil population -and the armed forces of Germany; (_iii_) the power taken by the German -Government to requisition food for the use of the army, which rendered -it probable that goods imported for civil use would be consumed by the -army if military exigencies required it. - -I confess that there are many considerations which challenge the logic -of the distinction between absolute and conditional contraband, and -give it more the character of a humanitarian concession. It introduces -a new bone of contention between belligerents and neutral traders, -and it opens up the grave danger of concealed contraband in cargoes -which are themselves innocent: the concealment of copper, for example, -in bales of cotton. In view of the more rigorous rule of blockade -where the distinction disappears, it seems more in the nature of a -preliminary measure in the process of throttling the enemy; the first -turn of the screw, and a suggestion of sterner measures which are in -store. - - * * * * * - -It is important to note that the determination of what is contraband, -what absolute and what conditional, is left to each belligerent. -Seeing that no law is possible on the subject, that agreement has -got no further than the unratified Declaration of London,[16] and -that it could not be for the enemy to decide, there is no one but the -belligerent left. But it rests on a better reason. Each belligerent is -master of his own fray; he can direct the attack at his own discretion, -and can strike his blows where he pleases; and if we bear in mind -what he _could_ do, the declaration that some things shall only be -contraband if they are destined for the enemy’s forces is clearly a -reservation of strength rather than an expenditure of force. There is -no rule which imposes half-measures on any belligerent; he may exert -all his strength and destroy or seize all his enemy’s property if he -is able; the principle of blockade expressly provides for it; the only -thing that is required of him is that, until he proceeds to extremes, -he must be careful how he interferes with neutral property. - - * * * * * - -Another point requires explanation. Of course all enemy ships upon -the seas are lawful prize. But it strikes one at once that here is a -departure from the principle that you do not make war upon the civil -population, for merchant ships are civilian property. The neutral -merchant has, however, been looked after, for the Declaration of Paris -has proclaimed that ‘neutral goods, with the exception of contraband -of war, are not liable to capture under enemy’s flag.’ But in the -converse case, it would not seem reasonable that enemy property in -neutral ships should escape capture. The Declaration of Paris, however, -steps in with the arbitrary rule that ‘the neutral flag covers enemy’s -goods, with the exception of contraband of war.’ It cannot be said -that this rule has done much to safeguard the ‘freedom of the sea’ -for neutral vessels, for there is no doubt that guns consigned to -Germany discovered on an American ship on a voyage from Galveston to -Pernambuco would be lawfully seized; and as the guns may be seized the -vessel may be detained and searched. But practical considerations work -in favour of the neutral merchant. Not all the hosts of the Allied -Fleets would be sufficient for the stupendous work which would be -involved in putting this right into practice; therefore good sense -has decreed that the destination of a ship to an enemy port shall be -adopted as the practical working factor in its application, at least -in the case of conditional contraband. But this has engendered the -idea, which certainly is no part of the rule in its naked simplicity, -that neutral ships sailing to neutral ports can carry enemy cargoes of -contraband with impunity. Enemy destination is supposed alone to afford -a presumption that there is contraband for the enemy on board; but if -there were any doubt that the idea is erroneous, the words ‘whatever be -their destination,’ in a judgment of Lord Stowell’s, to which I shall -presently refer, must dispel it. - - * * * * * - -I have talked of the belligerent right of seizure. But civilised -nations, recognising that in the most elementary statement of the case -not all neutral cargoes even with an enemy destination are liable to -seizure, have realised the necessity of establishing a tribunal by -which this question of liability and consequent confiscation can be -decided. With the right of some cargoes to escape there came into -being at once the duty of withdrawing the decision from the summary -process which the sailor would inevitably adopt. The question of -liability might be a complicated one of fact: law might be involved: a -Court was essential. But as to its constitution there were only three -alternatives: enemy judges, obviously impossible; neutral judges, -or an international Court, not very practicable; there remained -nothing but judges of the belligerent country. Hence the anomaly of -the Prize Court sitting in the seizing country’s territory, presided -over by judges of that country. An anomaly, because it is contrary to -the elementary rule that no man shall be a judge in his own cause; -yet the judgment of a Prize Court is a judgment _in rem_; it passes -property, and is accepted as binding against all the world by the -Courts of all other countries. There have been in the past complaints -of the decisions; sometimes they have been followed by diplomatic -representations. But in these times when--I imagine for the first -time in history--a civilised Government has been deliberately charged -with having recourse to lying, it surely is a bright spot in the -international horizon to think that the system of Prize Courts has -produced judges who, as the world has recognised, have been among the -greatest. - - * * * * * - -But the detention of neutral ships at sea, and the seizure of the -contraband that they carry to the enemy, can be put much higher than a -mere belligerent right; nor does it spring solely from the vindictive -principle that the neutral aiding the enemy becomes an enemy; it is -based on the supreme right of self-defence. It is the inevitable -counterpoise to the right of the neutral merchant to continue trading, -even in contraband, in spite of war. The importance of this trading -right to the neutral merchant is the measure of the importance of this -defensive right to the belligerent. - -The right of the neutral merchant was put on the large commercial -ground by Mr. Huskisson: ‘Of what use 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?’[17] But -it can be put on a still larger ground. Without it the small nations -would go to the wall. If there were such a doctrine as Germany now -contends for, a great country with unlimited resources could speedily -annihilate all the weak nations one after the other. There is no such -doctrine as that when war is declared the warring nations are to fight -it out with their own resources only. It is not the duty of neutral -merchants to keep the ring and let the best man win. Sentiment does -not come into the question. The neutral merchant may serve that side -which he earnestly desires should win; but the other belligerent has -the extreme penalty of confiscation in his hands, and sentiment must -inevitably fade into the background. - -The conclusion of the whole matter is that the two great war doctrines -are, the right of the neutral merchant to trade in contraband, and -the right of the belligerent nations to seize his cargoes. Combined, -they make the simple principle that the neutral merchant may supply -contraband to either side subject only to the risk of seizure by the -other. ‘The right of the neutral to transport,’ says Kent, ‘and of the -hostile Power to seize, are conflicting rights, and neither party can -charge the other with a criminal act.’[18] - - -_The Right and the Duty of Search_ - -But the principle of seizure is still in a very crude state; and seeing -that all cargoes destined for the enemy are not liable to seizure, -and that for practical reasons it is neither possible nor advisable -to bring in every cargo for adjudication in the Prize Courts, a -supplementary right has been devised, known as the ‘right of search.’ -It is the first step in the seizure, and, on the one hand, affords -the belligerent an opportunity of letting non-contraband cargo go -free; on the other hand, it gives the owner of the cargo an immediate -opportunity of proving its innocent character. The right of search is -often stated as an independent right, but it is in reality secondary to -the right of seizure, and references to it obviously apply equally to -the right of seizure. As to its unlimited nature I need do no more than -quote the well-known words of Lord Stowell in the case of the Swedish -convoy.[19] It is incontrovertible - - that the right of visiting and searching merchant ships upon the - high seas, whatever be the ships, whatever be the cargoes, whatever - be their destination, is an incontestable right of the lawfully - commissioned cruisers of a belligerent nation.... This right is so - clear in principle that no man can deny it who admits the legality of - maritime capture, because if you are not at liberty to ascertain by - sufficient inquiry whether there is property that can be captured, it - is impossible to capture. - -On this another rule has been grafted which is suggested by the -enunciation of the law as to the right of search. That right _must_ be -exercised for the very same reason that the right has been allowed, for -otherwise you do not know whether you have the right to seize. From the -_right of search_ has therefore developed the _duty to search_; and -it is the omission to recognise this duty that has plunged the German -Admiralty into its piratical career. - - -_The Doctrine of Continuous Voyages_ - -But the heart of the neutral merchant is desperately ingenious, -especially when his country is contiguous to the theatre of war, and no -sooner had he obtained the inch to which practical considerations made -him appear to be entitled than he developed it into an ell of his own -imagining. He argued thus: A neutral vessel bound to an enemy port is -liable to detention, because the presumption is that she has cargo for -the enemy, and that her cargo is probably contraband; the presumption -also is that cargoes on board a vessel bound for a neutral port are not -destined for the enemy, even though they may be contraband; nothing -easier than to bring them across the sea in a neutral vessel with a -neutral destination; all that remains to be done is to pass them on -to the belligerent, either transhipping them into another vessel and -sending it down the coast, out of the way of the attentions of the -enemy’s cruisers, or better still, if the neutral and belligerent -countries are contiguous, by rail across the border. And the best of -the plan is that the shipper on the other side of the water, say some -innocent merchant in copper in the United States, need know nothing -about it, so that if by chance the cargo does get seized he will do all -the shouting. - -With this problem, devised in some such human fashion, the United -States was faced during the Civil War, and the Judges settled it in -characteristic and logical manner. They discovered the doctrine of -‘continuous voyages.’ It is nothing more than the simple application -of elementary principles, and is arrived at by the elimination of -the presumption of innocence which the voyage to the neutral port -raised. All presumptions may be rebutted, and this one manifestly. -‘Be the destination what it may,’ the right of search existed; the -presumption had only been allowed to grow because it was convenient. -If goods destined for the enemy reached him by way of a neutral port, -that port was only an intermediate destination; the ultimate consignee -was the enemy, and there was a continuous voyage to him from the -port of shipment. Therefore the seizure, and therefore the search, -were justified, and could not be denied merely because ‘the final -destination of the cargo was left so skilfully open.’ - -But the neutral merchant’s wits are sharpened by much profit in -prospect; he is no simpleton, and a consignment of, let us say, copper -from the United States is not likely to be addressed ‘Herr Krupp von -Bohlen, Essen, _viâ_ Rotterdam, by kind favour of Messrs. Petersen & -Co.’ Hence a most ingenious argument conducted on the principle ‘You -shut your eyes, I’ll keep mine open.’ A consignment ‘to order’ (as -‘to the order of Messrs. Petersen & Co.’) may perhaps be legitimately -seized, because the words do not clearly indicate the Dutch firm to -be the real purchasers; but certainly not a consignment to a specific -person (as to Messrs. Petersen & Co., Rotterdam). The sophistry is -obvious; it does not negative the possibility that Messrs. Petersen & -Co. are either acting as buyers for, or have imported the goods with -the intention of passing them on to, Herr Krupp of Essen. And with the -help of trade statistics the possibility may be discovered to be a -probability. - - -_Embargo_ - -And now the pendulum swings back, and in the doctrine of embargo the -really neutral merchant comes into his own. ‘Embargo’ is the action -taken by a neutral Government in regard to goods which have been -declared to be contraband by one or other of the belligerents; and -the point to be emphasised is that it springs directly out of the -doctrine of ‘continuous voyages.’ In order to prevent neutral ships -destined to its ports with goods which one of the belligerents treats -as contraband being detained and searched at sea, it prohibits the -export of those goods from its own ports. The embargo satisfies the -belligerent that these goods will not go out of the neutral country, -and therefore will not get directly or indirectly into the hands of -the enemy; he therefore feels justified in letting those ships go -free, for the doctrine of ‘continuous voyages’ cannot apply. Now the -reason for the embargo is that the merchants of the neutral country -require the commodity for themselves. Suppose, for example, that -Spanish merchants require copper for their own use; then in order to -ensure cargoes of copper coming direct to Spanish ports without being -interfered with at sea by the search of belligerent cruisers, the -Spanish Government might put an embargo on copper: that is to say, -might prohibit its export. There could be no better evidence that the -Spanish merchants were importing the copper for their own trade, and -that none of it would get through to the enemy. I can therefore best -describe an embargo thus: It is action taken by a neutral Government to -protect those of its merchants who do not desire to engage in trade in -contraband from the consequences which would result from the action of -those who do. - -There is only one point in connexion with this doctrine which requires -attention. Is the action thus taken by the neutral Government a breach -of its neutrality to the other belligerent? For, undoubtedly, it does -act favourably to the belligerent who has declared the goods to be -contraband. The answer is simple. Once admit the strict logic of the -doctrine of ‘continuous voyages,’ it follows that an embargo is a -measure neither directed against one belligerent nor imposed to favour -the other. It is simply a measure of self-defence, taken in order to -prevent the national industries from suffering from the undoubted -belligerent right of detention at sea and possible seizure. - -There are other occasions in which an embargo may be resorted to, as in -the case of the embargo on rubber imported by Great Britain to which -reference has been made above.[20] That is purely a municipal question -with which international law can have no concern. - - -_Blockade_ - -And now I come to the last point of all, blockade, which is the supreme -manifestation of force at sea for the purpose of crushing the enemy. -Here all minor considerations vanish. The artificial distinction -between absolute and conditional contraband disappears; there is no -longer any free list; neutral as well as enemy cargoes are subject -to seizure, whether going to or coming from the blockaded port. The -humanitarian concession that war is not made on the civil population -finds no place; indeed, blockade derives much of its efficacy from -the pressure which the strangling process brings to bear on that -population. It has been described as a siege carried on at sea, but -under somewhat more elastic conditions than a land siege. It is a -convenient comparison, because all the outcry against its inhumanity -is silenced by the recollection of Paris in 1870, and the vision of -what Paris would have been in 1914 if the German plan had succeeded. -It is rigorous, almost brutal, but it is war, and war admits of no -half-measures which come within the code of civilisation; and this -measure, extreme though it be, has long been recognised as legitimate -warfare. Nor is there any conventional limitation as to the time when -it may be resorted to. Coming as it naturally does at the end of the -discussion to which other principles have led up, it might appear as if -custom had decreed that it should only be resorted to after all other -measures had failed. But there is nothing to prevent a war starting -with a blockade; nothing, that is to say, in the theory of the -subject, though there are any number of practical reasons which make it -improbable. I presume, however, that if a great maritime Power were at -war with a State which had only a miniature fleet, a blockade of its -coasts would be the speediest and, therefore, the most humane way of -bringing it to a conclusion. Certainly there is no rule or custom which -prevents a Power at war from putting forth its full strength at once. - -The ascending scale is easier for purposes of study; the mind -grasps smaller things more easily, and they prepare the way for the -appreciation of the greater things. But it is not by a process of -logical development that we reach blockade after a study of contraband. -Blockade is treated last more conveniently because it involves the -greatest development of force against the enemy; but it would have been -more logical to have begun at the other end of the scale, starting -with the greatest exhibition of force, and letting the series of -rules emerge in diminishing strength. In view of what remains to be -said, it is of great importance to appreciate that the incarnation -of sea-power, blockade, which cuts the enemy off absolutely from the -outer world, lies at one end of the scale of what one belligerent may -do to the other, and the seizure of contraband on a neutral ship going -to an enemy port, which cuts the enemy off but partially, lies at the -other end. There can then be no difficulty in justifying what comes in -between. - -But the most curious point is that it is only when we come to the -recognition of this extreme manifestation of force that we meet with -artificial rules. A blockade must be ‘effective.’ Yet this word, as -to the meaning of which in its ordinary use there can be no doubt, is -given in treaties and by the authorities a wholly artificial meaning. -Sometimes it includes the exact contrary to effectiveness, as that -‘A blockade is not regarded as raised if the blockading force is -temporarily withdrawn on account of stress of weather’[21]: during -which the adventurous skipper may run in. It is not necessary to labour -the point; but it is necessary, when measures short of ‘blockade’ have -been taken by England, that the full extent of what blockade pressure -upon neutral trade means should be understood. - - In order to determine what characterises a blockaded port, that - denomination is given only where there is, by the disposition of the - Power which attacks it with ships, stationary or sufficiently near, an - evident danger in entering.[22] - - A blockade [by cruising squadrons allotted to that service, and duly - competent to its execution] is valid and legitimate, although there be - no design to attack or reduce by force the port or arsenal to which it - is applied, and that the fact of the blockade, with due notice given - to neutral Powers, shall affect not only vessels actually intercepted - in the attempt to enter the blockaded port, but those also which shall - be elsewhere met with and shall be found to have been destined to such - port, with knowledge of the fact and notice of the blockade.[23] - -These two quotations embody the principles of the English prize law. -Article 17 of the Declaration of London contains a modification of -them, and provides that ‘neutral vessels may not be captured for breach -of blockade except within the area of operations of the war-ships -detailed to render the blockade effective.’ - - * * * * * - -I have come to the threshold of a subject of gravest importance, -the new policy of the British Government adopted in answer to the -‘war-zone’ declaration of Germany, and I stop. To devote to it merely -the end of an already long article would not be treating it with the -consideration which it deserves, and which the question demands. -Moreover, it would not be expedient for an ex-official Englishman -to discuss the subject controversially at present. It is sufficient -that the measure has been adopted after full and mature consideration -by the Government, that the question is political as well as legal, -and for us it must be taken to be within the legitimate powers of a -belligerent. Presently, to judge from what has already happened, there -certainly will be any amount of nonsense talked and written about it; -already the term ‘paper-blockade’ has come in handily for the making -of a paragraph, and some bold spirit has hit upon a brand-new term, -‘long-distance blockade.’ Also there has been some not very wise talk -about ‘Two wrongs not making a right.’ I would suggest to those who -feel irresistibly impelled to discuss the question that they should -omit the word ‘blockade,’ for, as we have seen, it is a pernicketty -term, and all sorts of legal niceties spring up in its train. I have -endeavoured to show that ‘blockade’ is the extreme manifestation of the -force known as sea-power against the enemy, that sea-power lies at the -root of the authority which has been given to the series of principles -governing belligerent interference with neutral trade, and that these -principles are not a mere adventitious set of rules drawn up at odd -times as wars at sea occasioned them. The principles and the rules have -resulted from the play of natural forces, exerted by the belligerents -on the one side, by the neutral merchant on the other. The rules are -not even a compromise. The clash of forces has thrown off alternating -sparks, rules recognising now the right of the one, now the right of -the other. But in the supreme display of sea-power known as ‘blockade’ -we find that the right of the belligerent does, as is inevitable, take -the upper hand, and the right of the neutral disappears. And there are -two French maxims worthy of note just now: ‘_Qui veut les fins veut les -moyens_,’ and ‘_Qui peut plus peut moins_.’ - - * * * * * - -P.S.--I must briefly refer to two questions which appear at first sight -to conflict with the principles advanced in this article--Foreign -Enlistment, and the King’s Proclamations of Neutrality. - -Before agreeing with the United States as to the ‘Three Rules’ which, -as I have pointed out,[24] deal solely with ‘foreign enlistment,’ -the British Government declared that they could not assent to the -contention that those rules were a statement of principles of -international law in force at the time when the _Alabama_ claims arose. -This is expressly stated in Article 6 of the Treaty of Washington. -‘Historicus,’ in one of his Letters,[25] cites some American -authorities which bear out this view. Further, he explains the true -inwardness of the Foreign Enlistment Act:-- - - The Enlistment Act is directed, not against the _animus vendendi_, but - against the _animus belligerendi_. - - It prohibits warlike enterprise, but it does not interfere with - commercial adventure. A subject of the Crown may sell a ship of war, - as he may sell a musket, to either belligerent with impunity; nay, he - may even despatch it for sale to the belligerent port. But he may not - take part in the overt act of making war upon a people with whom his - Sovereign is at peace. The purview of the Foreign Enlistment Act is - to prohibit a breach of allegiance on the part of the subject against - his own Sovereign, not to prevent transactions in contraband with - the belligerent. Its object is to prohibit private war, and not to - restrain private commerce. - -It is only when it has become the subject of agreement between two or -more States that ‘foreign enlistment’ assumes an international as well -as a municipal character. I presume that this municipal character has -not been lost by the inclusion of the duty to prevent the fitting out -or arming of vessels in Article 8 of the Hague Convention, No. 13, of -1907, relating to the duties of Neutral Powers in Maritime War. - -As to the Proclamations of Neutrality, so much as recites and -reinforces the Foreign Enlistment Act need not trouble us; the King’s -loving subjects are exhorted to comply therewith. The rest of the -Proclamations amounts to no more than a warning to subjects not to do -‘any acts in derogation of their duty as subjects of a neutral Power -in a war between other Powers, or in violation or contravention of -the law of nations in that behalf’; but, as ‘Historicus’ says,[26] -‘The nature of the penalty is pointed out with equal clearness and -correctness--_viz._ the withdrawal of the King’s protection from the -contraband on its road to the enemy, and an abandonment of the subject -to the operation of belligerent rights.’ What those belligerent rights -are I have endeavoured to explain. - - - - -II - -_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. - - - - -III - -_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] - - - - -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. - - - - - PRINTED BY - SPOTTISWOODE AND CO. LTD., COLCHESTER - LONDON AND ETON, ENGLAND - -*** END OF THE PROJECT GUTENBERG EBOOK THE NEUTRAL MERCHANT *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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