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- height: auto; -} -img.w100 {width: 100%;} - - -.figcenter { - margin: auto; - text-align: center; - page-break-inside: avoid; - max-width: 100%; -} - -.figleft { - float: left; - clear: left; - margin-left: 0; - margin-bottom: 1em; - margin-top: 1em; - margin-right: 1em; - padding: 0; - text-align: center; - page-break-inside: avoid; - max-width: 100%; -} -/* comment out next line and uncomment the following one for floating figleft on ebookmaker output */ -.x-ebookmaker .figleft {float: none; text-align: center; margin-right: 0;} -/* .x-ebookmaker .figleft {float: left;} */ - -.figright { - float: right; - clear: right; - margin-left: 1em; - margin-bottom: 1em; - margin-top: 1em; - margin-right: 0; - padding: 0; - text-align: center; - page-break-inside: avoid; - max-width: 100%; -} -/* comment out next line and uncomment the following one for floating figright on ebookmaker output */ -.x-ebookmaker .figright {float: none; text-align: center; margin-left: 0;} -/* .x-ebookmaker .figright {float: right;} */ - -/* Footnotes */ -.footnotes {border: 1px dashed;} - -.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} - -.footnote .label {position: absolute; right: 84%; text-align: right;} - -.fnanchor { - vertical-align: super; - font-size: .8em; - text-decoration: - none; -} - -/* Poetry */ -.poetry-container {text-align: center;} -.poetry {text-align: left; margin-left: 5%; margin-right: 5%;} -/* uncomment the next line for centered poetry in browsers */ -/* .poetry {display: inline-block;} */ -.poetry .stanza {margin: 1em auto;} -.poetry .verse {text-indent: -3em; padding-left: 3em;} -/* large inline blocks don't split well on paged devices */ -@media print { .poetry {display: block;} } -.x-ebookmaker .poetry {display: block;} - -/* Transcriber's notes */ -.transnote {background-color: #E6E6FA; - color: black; - font-size:smaller; - padding:0.5em; - margin-bottom:5em; - font-family:sans-serif, serif; } - - /* ]]> */ </style> -</head> -<body> -<p style='text-align:center; font-size:1.2em; font-weight:bold'>The Project Gutenberg eBook of The neutral merchant, by Francis Piggott</p> -<div style='display:block; margin:1em 0'> -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 <a href="https://www.gutenberg.org">www.gutenberg.org</a>. 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. -</div> - -<p style='display:block; margin-top:1em; margin-bottom:1em; margin-left:2em; text-indent:-2em'>Title: The neutral merchant</p> -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Author: Francis Piggott</p> -<p style='display:block; text-indent:0; margin:1em 0'>Release Date: January 5, 2023 [eBook #69710]</p> -<p style='display:block; text-indent:0; margin:1em 0'>Language: English</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em; text-align:left'>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)</p> -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK THE NEUTRAL MERCHANT ***</div> - -<h1> -<span class="t2">THE</span><br> -<span class="t1">NEUTRAL MERCHANT</span> -</h1> - -<p class="center big"> -<span style="word-spacing: 0.25em">IN RELATION TO THE LAW OF</span><br> -<span style="word-spacing: 0.6em">CONTRABAND OF WAR AND</span><br> -<span style="word-spacing: 0.05em">BLOCKADE UNDER THE ORDER</span><br> -<span style="word-spacing: -0.1em">IN COUNCIL OF <span class="allsmcap">11TH</span> MARCH 1915</span></p> - -<p class="center bigtopmargin small">BY</p> - -<p class="center big notopmargin">SIR FRANCIS PIGGOTT</p> - -<p class="center small">LATE CHIEF JUSTICE OF HONG KONG</p> - -<p class="center bigtopmargin"><i>Reprinted, by permission, from</i><br> -<span class="smcap">The Nineteenth Century and After</span></p> - -<p class="center bigtopmargin big">UNIVERSITY OF LONDON PRESS, LTD.</p> - -<p class="center">AT ST. PAUL’S HOUSE, WARWICK SQUARE, E.C.</p> - -<p class="center smalltopmargin">1915 -</p> - - -<div class="chapter"> -<hr class="chap x-ebookmaker-drop"> - -<p><span class="pagenum" id="Page_v">[Pg v]</span></p> -</div> -<p><span class="smcap">These</span> articles appeared this year in the April, -August, and September numbers of <i>The Nineteenth -Century and After</i>, 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.</p> - -<p>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<span class="pagenum" id="Page_vi">[Pg vi]</span> -vigorous language, desiring to deflect us, in the -interests of its commerce, from a course which -must materially assist in crushing our enemy.</p> - -<p>It is not customary, except in one clear case, for -a neutral Government to insist that a belligerent -should adopt, <i>in medias res</i>, its views of a question -which does not involve any issue of peace or war: -to press on him, <i>in medium bellum</i>, 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,<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a> 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.</p> - -<p>The United States Government, by placing -England and Germany on the same plane of protest,—the -‘lawless conduct’ of the belligerents—has,<span class="pagenum" id="Page_vii">[Pg vii]</span> -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.</p> - -<p>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.</p> - -<p>Reduced, therefore, to its simplest expression, -the position taken up by the United States<span class="pagenum" id="Page_viii">[Pg viii]</span> -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.</p> - -<p>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,<span class="pagenum" id="Page_ix">[Pg ix]</span> -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.<a id="FNanchor_2" href="#Footnote_2" class="fnanchor">[2]</a> -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.<a id="FNanchor_3" href="#Footnote_3" class="fnanchor">[3]</a> -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<span class="pagenum" id="Page_x">[Pg x]</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_xi">[Pg xi]</span> -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.</p> - -<p>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.</p> - -<p>The demand for action, so strenuously expressed,<span class="pagenum" id="Page_xii">[Pg xii]</span> -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.</p> - -<p>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.<a id="FNanchor_4" href="#Footnote_4" class="fnanchor">[4]</a> 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<span class="pagenum" id="Page_xiii">[Pg xiii]</span> -natural, the inevitable results of the command -of the sea which in fair fighting in times past -England has won for herself.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.<span class="pagenum" id="Page_xiv">[Pg xiv]</span> -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.</p> - -<p>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 <i>now</i> 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.’<a id="FNanchor_5" href="#Footnote_5" class="fnanchor">[5]</a> Here, then,<span class="pagenum" id="Page_xv">[Pg xv]</span> -is the whole matter ‘bounded in a nut-shell.’ -It is admitted that a belligerent may forcibly -prevent <i>all</i> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_xvi">[Pg xvi]</span> -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.<a id="FNanchor_6" href="#Footnote_6" class="fnanchor">[6]</a></p> - -<hr class="tb"> - -<p>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.</p> - -<p>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.<span class="pagenum" id="Page_xvii">[Pg xvii]</span> -They deal simply with the Order as it stands, -not with the method of its enforcement.</p> - -<hr class="tb"> - -<p>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.</p> - -<p>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.</p> - -<p class="right"> -<i>F. T. P.</i><br> -</p> - -<div class="blockquot"> - -<p><i>November, 1915.</i></p> -</div> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_xix">[Pg xix]</span></p> - -<h2 class="nobreak" id="CONTENTS">CONTENTS</h2> -</div> - -<table class="autotable"> -<tr> -<td class="tdl"></td> -<td class="tdl"></td> -<td class="tdr"><span class="smcap">page</span></td> -</tr> -<tr> -<td class="tdl"></td> -<td class="tdl"><span class="smcap">Introduction</span></td> -<td class="tdr"><a href="#Page_v">v</a></td> -</tr> -<tr> -<td class="tdr">I.</td> -<td class="tdl"><span class="smcap">The Neutral Merchant: Three American Notes</span></td> -<td class="tdl"></td> -</tr> -<tr> -<td class="tdl"></td> -<td class="tdl toc2row"><span class="smcap">and the Answers</span></td> -<td class="tdr"><a href="#I">1</a></td> -</tr> -<tr> -<td class="tdr">II.</td> -<td class="tdl"><span class="smcap">The Neutral Merchant and the ‘Freedom of</span></td> -<td class="tdl"></td> -</tr> -<tr> -<td class="tdl"></td> -<td class="tdl toc2row"><span class="smcap">the Sea’</span></td> -<td class="tdr"><a href="#II">49</a></td> -</tr> -<tr> -<td class="tdr">III.</td> -<td class="tdl"><span class="smcap">Cotton as Contraband of War</span></td> -<td class="tdr"><a href="#III">95</a></td> -</tr> -</table> - -<span class="pagenum" id="Page_1">[Pg 1]</span> - - - - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<h2 class="nobreak" id="THE_NEUTRAL_MERCHANT">THE NEUTRAL MERCHANT</h2> -</div> - - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<h2 class="nobreak spacing" id="I">I<br> -<i>THE NEUTRAL MERCHANT: -THREE AMERICAN NOTES AND THE ANSWERS</i> -</h2> -</div> - -<div class="blockquot"> - -<p class="right"> -[<i>April 1915</i>]<br> -</p> - -<p>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.</p> -</div> - - -<p>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<span class="pagenum" id="Page_2">[Pg 2]</span> -found to the inevitable query, ‘Which be they?’ -Within the last few weeks I read a contribution -to <i>The Times</i> 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.’<a id="FNanchor_7" href="#Footnote_7" class="fnanchor">[7]</a> But if by ‘duties<span class="pagenum" id="Page_3">[Pg 3]</span> -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, -<i>inter alia</i>, 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.<a id="FNanchor_8" href="#Footnote_8" class="fnanchor">[8]</a> 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.</p> - -<p>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<span class="pagenum" id="Page_4">[Pg 4]</span> -appeared in <i>The Times</i> 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<a id="FNanchor_9" href="#Footnote_9" class="fnanchor">[9]</a> to Burke<span class="pagenum" id="Page_5">[Pg 5]</span> -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 <i>quite</i> 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.</p> - -<hr class="tb"> - -<p>The neutral merchant is the centre round which<span class="pagenum" id="Page_6">[Pg 6]</span> -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<span class="pagenum" id="Page_7">[Pg 7]</span> -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.</p> - - -<h3><i>The Use of Neutral Flags by Merchantmen</i></h3> - -<p>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.</p> - -<p>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 <i>Lusitania</i>, 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<span class="pagenum" id="Page_8">[Pg 8]</span> -to have forgotten that the <i>Emden</i> sailed into -Penang harbour flying the Japanese ensign, and -that this, added to her other disguises, enabled -her to accomplish her raid successfully.<a id="FNanchor_10" href="#Footnote_10" class="fnanchor">[10]</a> 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 <i>post</i> and the <i>propter</i> in the sequence of events.</p> - -<p>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</p> - -<div class="blockquot"> - -<p>a very different thing from the explicit sanction by a -belligerent Government for its merchant ships generally<span class="pagenum" id="Page_9">[Pg 9]</span> -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.</p> -</div> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_10">[Pg 10]</span> -fall on the nation which had deliberately disregarded -the obligations recognised by all civilised -nations in connexion with the seizure of merchant -ships.</p> - -<p>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 <i>Lusitania</i>. -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<span class="pagenum" id="Page_11">[Pg 11]</span> -the <i>Lusitania</i> 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 <i>ruse de guerre</i>.</p> - -<p>By a <i>ruse de guerre</i>, 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 <i>Emden</i>, 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 <i>ruses de guerre</i>; 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.</p> - - -<h3><i>The First American Note to Great Britain</i></h3> - -<p>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<span class="pagenum" id="Page_12">[Pg 12]</span> -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</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>The general principle is then laid down that, -‘seeing that peace, and not war, is the normal -relation between nations,’</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p><span class="pagenum" id="Page_13">[Pg 13]</span></p> - -<p>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.’</p> - -<p>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</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_14">[Pg 14]</span> -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.’</p> - -<p>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,<span class="pagenum" id="Page_15">[Pg 15]</span> -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.</p> - -<p>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</p> - -<div class="blockquot"> - -<p>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 -<i>bona-fide</i> 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.</p> -</div> - -<p>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<span class="pagenum" id="Page_16">[Pg 16]</span> -astonishing increases duly noted. The conclusion -is very clear.</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_17">[Pg 17]</span> -for the enemy, without interfering with those -which are <i>bona-fide</i> neutral.’</p> - -<p>The extraordinary procedure adopted by the -United States Government of <i>prohibiting</i> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_18">[Pg 18]</span> -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.’</p> - -<p>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.</p> - -<p>The question in issue can be stated in almost<span class="pagenum" id="Page_19">[Pg 19]</span> -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.</p> - -<p>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.</p> - -<p>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 <i>tu quoque</i>, 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.</p> - -<p>The earlier American Note of the 7th of<span class="pagenum" id="Page_20">[Pg 20]</span> -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 <i>Bermuda</i><a id="FNanchor_11" href="#Footnote_11" class="fnanchor">[11]</a> is a complete answer:</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_21">[Pg 21]</span> -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.</p> - - -<h3><i>The First American Note to Germany</i></h3> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_22">[Pg 22]</span> -method of dealing with the duties of neutral States -towards Germany.</p> - -<div class="blockquot"> - -<p>Neutrals have been unable to prevent the interruption -of their commerce with Germany, which is contrary to -international laws.</p> - -<p>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.</p> -</div> - -<p>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:</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>The involutions of these astonishing sentences<span class="pagenum" id="Page_23">[Pg 23]</span> -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<span class="pagenum" id="Page_24">[Pg 24]</span> -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.</p> - - -<h3><i>THE EVOLUTION OF THE DOCTRINES OF CONTRABAND -OF WAR AND BLOCKADE</i></h3> - -<p>So much for the Notes and the Answers, and -I pass to the realm of international law.<a id="FNanchor_12" href="#Footnote_12" class="fnanchor">[12]</a> 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.<a id="FNanchor_13" href="#Footnote_13" class="fnanchor">[13]</a> 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.</p> - -<p><span class="pagenum" id="Page_25">[Pg 25]</span></p> - - -<h3><i>The Meaning of Neutrality</i></h3> - -<p>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.</p> - -<p>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<a id="FNanchor_14" href="#Footnote_14" class="fnanchor">[14]</a> 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<span class="pagenum" id="Page_26">[Pg 26]</span> -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.</p> - -<p>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,<span class="pagenum" id="Page_27">[Pg 27]</span> -and there is no reason why, because two of -them go to war, all their trade with the others -should be declared illegal.<a id="FNanchor_15" href="#Footnote_15" class="fnanchor">[15]</a> 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.</p> - -<h3><i>Contraband of War</i></h3> - -<p>But to adopt the language of the day, <i>Krieg ist -Krieg</i>; 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<span class="pagenum" id="Page_28">[Pg 28]</span> -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<span class="pagenum" id="Page_29">[Pg 29]</span> -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.</p> - -<hr class="tb"> - -<p>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.</p> - -<p>The broad principle governing conditional contraband<span class="pagenum" id="Page_30">[Pg 30]</span> -was stated by Lord Salisbury in the -<i>dictum</i> as to foodstuffs already referred to.</p> - -<p>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>i</i>) the existence of an elaborate -machinery for the supply of foodstuffs for the use -of the German army from overseas; (<i>ii</i>) the -practical disappearance of the distinction between -the civil population and the armed forces of -Germany; (<i>iii</i>) 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.</p> - -<p>I confess that there are many considerations<span class="pagenum" id="Page_31">[Pg 31]</span> -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.</p> - -<hr class="tb"> - -<p>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,<a id="FNanchor_16" href="#Footnote_16" class="fnanchor">[16]</a> 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 <i>could</i> 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<span class="pagenum" id="Page_32">[Pg 32]</span> -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.</p> - -<hr class="tb"> - -<p>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<span class="pagenum" id="Page_33">[Pg 33]</span> -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.</p> - -<hr class="tb"> - -<p>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;<span class="pagenum" id="Page_34">[Pg 34]</span> -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 -<i>in rem</i>; 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.</p> - -<hr class="tb"> - -<p>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.</p> - -<p><span class="pagenum" id="Page_35">[Pg 35]</span></p> - -<p>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?’<a id="FNanchor_17" href="#Footnote_17" class="fnanchor">[17]</a> 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<span class="pagenum" id="Page_36">[Pg 36]</span> -the extreme penalty of confiscation in his hands, -and sentiment must inevitably fade into the background.</p> - -<p>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.’<a id="FNanchor_18" href="#Footnote_18" class="fnanchor">[18]</a></p> - -<h3><i>The Right and the Duty of Search</i></h3> - -<p>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<span class="pagenum" id="Page_37">[Pg 37]</span> -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.<a id="FNanchor_19" href="#Footnote_19" class="fnanchor">[19]</a> It is incontrovertible</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>On this another rule has been grafted which -is suggested by the enunciation of the law as to -the right of search. That right <i>must</i> 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 <i>right -of search</i> has therefore developed the <i>duty to -search</i>; and it is the omission to recognise this -duty that has plunged the German Admiralty -into its piratical career.</p> - -<p><span class="pagenum" id="Page_38">[Pg 38]</span></p> - - -<h3><i>The Doctrine of Continuous Voyages</i></h3> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_39">[Pg 39]</span> -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.’</p> - -<p>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, <i>viâ</i> 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.<span class="pagenum" id="Page_40">[Pg 40]</span> -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.</p> - - -<h3><i>Embargo</i></h3> - -<p>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,<span class="pagenum" id="Page_41">[Pg 41]</span> -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.</p> - -<p>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.</p> - -<p>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.<a id="FNanchor_20" href="#Footnote_20" class="fnanchor">[20]</a> That is purely -a municipal question with which international -law can have no concern.</p> - -<p><span class="pagenum" id="Page_42">[Pg 42]</span></p> - - -<h3><i>Blockade</i></h3> - -<p>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,<span class="pagenum" id="Page_43">[Pg 43]</span> -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.</p> - -<p>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.</p> - -<p>But the most curious point is that it is only<span class="pagenum" id="Page_44">[Pg 44]</span> -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’<a id="FNanchor_21" href="#Footnote_21" class="fnanchor">[21]</a>: -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.</p> - -<div class="blockquot"> - -<p>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.<a id="FNanchor_22" href="#Footnote_22" class="fnanchor">[22]</a></p> - -<p>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.<a id="FNanchor_23" href="#Footnote_23" class="fnanchor">[23]</a></p> -</div> - -<p><span class="pagenum" id="Page_45">[Pg 45]</span></p> - -<p>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.’</p> - -<hr class="tb"> - -<p>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<span class="pagenum" id="Page_46">[Pg 46]</span> -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: ‘<i>Qui veut les fins veut les moyens</i>,’ and -‘<i>Qui peut plus peut moins</i>.’</p> - -<hr class="tb"> - -<p>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.</p> - -<p>Before agreeing with the United States as to -the ‘Three Rules’ which, as I have pointed out,<a id="FNanchor_24" href="#Footnote_24" class="fnanchor">[24]</a><span class="pagenum" id="Page_47">[Pg 47]</span> -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 <i>Alabama</i> claims arose. This -is expressly stated in Article 6 of the Treaty of -Washington. ‘Historicus,’ in one of his Letters,<a id="FNanchor_25" href="#Footnote_25" class="fnanchor">[25]</a> -cites some American authorities which bear out -this view. Further, he explains the true inwardness -of the Foreign Enlistment Act:—</p> - -<div class="blockquot"> - -<p>The Enlistment Act is directed, not against the <i>animus -vendendi</i>, but against the <i>animus belligerendi</i>.</p> - -<p>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.</p> -</div> - -<p>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.</p> - -<p><span class="pagenum" id="Page_48">[Pg 48]</span></p> - -<p>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,<a id="FNanchor_26" href="#Footnote_26" class="fnanchor">[26]</a> ‘The nature of the penalty is pointed out -with equal clearness and correctness—<i>viz.</i> 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.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_49">[Pg 49]</span></p> - -<h2 class="nobreak spacing" id="II">II<br> -<i>THE NEUTRAL MERCHANT AND THE -‘FREEDOM OF THE SEA’</i></h2> -</div> - -<div class="blockquot"> - -<p class="right"> -[<i>August 1915</i>]<br> -</p> - -<p>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 <i>caveat</i>—Criticism of Note in the -‘North American Review’—Continuing Contracts entered into -before the War.</p> -</div> - - -<p>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<span class="pagenum" id="Page_50">[Pg 50]</span> -‘those rules of fairness, reason, justice, and humanity, -which all modern opinion regards as imperative.’ -On the 11th of June, the defence that the <i>Lusitania</i> -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.</p> - -<p>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 <i>may</i> be wrong, and -they will not fail to apply their favourite doctrine -in this case.</p> - -<p>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<span class="pagenum" id="Page_51">[Pg 51]</span> -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 <i>North American Review</i> 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.’</p> - - -<h3><i>Mr. Norman Angell’s Plan for the Neutralization -of the Sea</i></h3> - -<p>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.<span class="pagenum" id="Page_52">[Pg 52]</span> -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<span class="pagenum" id="Page_53">[Pg 53]</span> -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.</p> - -<p>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 -<i>corpus vile</i> 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<span class="pagenum" id="Page_54">[Pg 54]</span> -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.</p> - -<p>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.’<a id="FNanchor_27" href="#Footnote_27" class="fnanchor">[27]</a></p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_55">[Pg 55]</span></p> - -<p>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,<a id="FNanchor_28" href="#Footnote_28" class="fnanchor">[28]</a> 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.</p> - - -<p>With the bearing of the ‘command of the -sea’ upon the third phrase of its ‘neutralization’ -this article specially concerns itself.</p> - -<p>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<span class="pagenum" id="Page_56">[Pg 56]</span> -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.</p> - -<p>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<a id="FNanchor_29" href="#Footnote_29" class="fnanchor">[29]</a>—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 -<i>Emden’s</i> 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<span class="pagenum" id="Page_57">[Pg 57]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_58">[Pg 58]</span> -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.<a id="FNanchor_30" href="#Footnote_30" class="fnanchor">[30]</a> But we may<span class="pagenum" id="Page_59">[Pg 59]</span> -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, <i>quorum pars -parvula fui</i>. <i>We</i> knew what we were quarrelling -about. But Germany! She tells the unlistening -world that she is fighting for ‘the traditional -<i>mare liberum</i>’! What can this <i>parvenu</i> 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 <i>casus belli</i>.’<a id="FNanchor_31" href="#Footnote_31" class="fnanchor">[31]</a><span class="pagenum" id="Page_60">[Pg 60]</span> -From which it appears that the proposed remedy -will hardly cure the disease.</p> - -<p>‘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.</p> - - -<h3><i>General View of the Main Provision of the Order -in Council</i></h3> - -<p>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<span class="pagenum" id="Page_61">[Pg 61]</span> -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.</p> - -<p>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.</p> - -<p>And, first, I venture to contest the main -doctrines on which the criticism of the Order<span class="pagenum" id="Page_62">[Pg 62]</span> -rests.<a id="FNanchor_32" href="#Footnote_32" class="fnanchor">[32]</a> I deny that a belligerent nation has been -<i>conceded</i> ‘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 <i>conceded</i> ‘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 <i>belligerent rights</i> -which may be <i>asserted</i> 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.</p> - -<p><span class="pagenum" id="Page_63">[Pg 63]</span></p> - - -<h3><i>Application of the Law of Vendor and Purchaser</i></h3> - -<p>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 <i>enemy property</i>, whereas the doctrines -on which the law of contraband and the law of -blockade rest apply to the seizure of <i>neutral property</i>. -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.</p> - -<div class="blockquot"> - -<p>‘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.’</p> -</div> - -<p>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.</p> - -<p>The merchant promotes his trade with foreign<span class="pagenum" id="Page_64">[Pg 64]</span> -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 <i>him</i> 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.</p> - -<p>Here then is the puzzle. Seeing that the law<span class="pagenum" id="Page_65">[Pg 65]</span> -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 <i>these</i> 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<span class="pagenum" id="Page_66">[Pg 66]</span> -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.<a id="FNanchor_33" href="#Footnote_33" class="fnanchor">[33]</a> 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.</p> - -<p>But it may, with respect, be questioned whether -the allegation is correct. The effect of war on -commerce <i>generally</i> must be judged by its results -on commerce <i>as a whole</i>; 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.</p> - -<p><span class="pagenum" id="Page_67">[Pg 67]</span></p> - -<p>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.<a id="FNanchor_34" href="#Footnote_34" class="fnanchor">[34]</a></p> - -<h3><i>The Declaration of Paris—Free Ships make -Free Goods</i></h3> - -<p>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,’<a id="FNanchor_35" href="#Footnote_35" class="fnanchor">[35]</a> -still holds good. Nor has it interfered with or -curtailed the rights incident to blockade; then -the doctrine of the Declaration vanishes, for there<span class="pagenum" id="Page_68">[Pg 68]</span> -are no ‘free ships’ by which the enemy’s goods -may be made free, all goods on board being liable -to seizure.</p> - -<p>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.</p> - -<p>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 <i>locus standi</i>. 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<span class="pagenum" id="Page_69">[Pg 69]</span> -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.<a id="FNanchor_36" href="#Footnote_36" class="fnanchor">[36]</a> -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.</p> - -<p>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<span class="pagenum" id="Page_70">[Pg 70]</span> -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.’</p> - -<p>Is this a scheme straight from the Councils -of Utopia? I wonder! Perhaps for the present<span class="pagenum" id="Page_71">[Pg 71]</span> -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.</p> - - -<h3><i>The Effect of the Order in Council</i></h3> - -<p>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, <i>if we had declared a blockade</i>, -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.</p> - -<p>The rules of international law can only preserve -their vitality if they keep pace with the<span class="pagenum" id="Page_72">[Pg 72]</span> -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,<span class="pagenum" id="Page_73">[Pg 73]</span> -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.<a id="FNanchor_37" href="#Footnote_37" class="fnanchor">[37]</a> But all this is top-hamper of curious<span class="pagenum" id="Page_74">[Pg 74]</span> -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 <i>all</i> 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.</p> - -<p>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<span class="pagenum" id="Page_75">[Pg 75]</span> -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.’</p> - -<p>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.<a id="FNanchor_38" href="#Footnote_38" class="fnanchor">[38]</a> 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<span class="pagenum" id="Page_76">[Pg 76]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_77">[Pg 77]</span> -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.</p> - - -<h3><i>The Relation between Contraband of War and -Blockade</i></h3> - -<p>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.<a id="FNanchor_39" href="#Footnote_39" class="fnanchor">[39]</a> 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 <i>rights</i> in regard to non-contraband, the belligerent -may destroy them by declaring a blockade. -<span class="pagenum" id="Page_78">[Pg 78]</span> -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. - -<p>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 <i>may</i> -do is only qualified by what he <i>can</i> 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,<span class="pagenum" id="Page_79">[Pg 79]</span> -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.</p> - -<p>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.</p> - -<p>Now, seeing that the Order pays so great -regard to the pocket of the neutral merchant that -it does not condemn <i>his</i> 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<span class="pagenum" id="Page_80">[Pg 80]</span> -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, <i>as against the neutral merchant</i>, 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? <span class="hovertext" data-hover="Changed from the">The</span> right to stop <i>all</i> 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 <i>can</i> -do without it yet he <i>may</i> not.</p> - -<p>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.</p> - - -<h3><i>The Sovereignty over Neutral Ships</i></h3> - -<p>But the United States Government rests its -protest on an alternative ground. The Order in -Council, it declares,</p> - -<div class="blockquot"> - -<p>would constitute, were its provisions to be actually carried -into effect as they stand, a practical assertion of unlimited<span class="pagenum" id="Page_81">[Pg 81]</span> -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.</p> - -<hr class="tb"> - -<p>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 <span class="hovertext" data-hover="Changed from course;">course,</span> -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.</p> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_82">[Pg 82]</span> -stated them, then it follows that there can be <span class="hovertext" data-hover="Changed from on">no</span> -question of ‘concession’ by the neutral merchant’s -Government, in regard to either contraband or -blockade, but only an assertion of belligerent right,<a id="FNanchor_40" href="#Footnote_40" class="fnanchor">[40]</a> -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.</p> - -<p>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—<i>viz.</i> the withdrawal of the Queen’s -protection from the contraband on its road to -the enemy, and an abandonment of the subject to<span class="pagenum" id="Page_83">[Pg 83]</span> -the operation of belligerent rights.’<a id="FNanchor_41" href="#Footnote_41" class="fnanchor">[41]</a> 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.’<a id="FNanchor_42" href="#Footnote_42" class="fnanchor">[42]</a> 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 <i>concession</i>. A -neutral vessel carrying contraband is in no better -case than if she wore no flag. The <i>fact of the -contraband being on board</i> withdraws her from her -national protection.</p> - -<p>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 <span class="hovertext" data-hover="Changed from transportation.">transportation.’</span><a id="FNanchor_43" href="#Footnote_43" class="fnanchor">[43]</a> 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.<a id="FNanchor_44" href="#Footnote_44" class="fnanchor">[44]</a></p> - -<p><span class="pagenum" id="Page_84">[Pg 84]</span></p> - -<p>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.’<a id="FNanchor_45" href="#Footnote_45" class="fnanchor">[45]</a> The proclamation -in fact admits that this search of <i>all</i> 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.</p> - -<p><span class="pagenum" id="Page_85">[Pg 85]</span></p> - - -<h3><i>The Doctrine of ‘Continuous Voyages’ and the -Order in Council</i></h3> - -<p>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:—</p> - -<div class="blockquot"> - -<p>It is confidently assumed that His Majesty’s Government -will not deny at once [<i>i.e.</i> 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, <i>innocent shipments may be freely transported -to and from the United States through neutral -countries to belligerent territory</i> without being subject to -the penalties of contraband traffic or breach of blockade, -much less to detention, requisition, or confiscation.</p> -</div> - -<p>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<span class="pagenum" id="Page_86">[Pg 86]</span> -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.</p> - -<p>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<span class="pagenum" id="Page_87">[Pg 87]</span> -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.<a id="FNanchor_46" href="#Footnote_46" class="fnanchor">[46]</a></p> - -<p>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 <i>will</i>, whenever he has -the power, take the necessary steps to cut off -<i>all</i> 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,<span class="pagenum" id="Page_88">[Pg 88]</span> -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<span class="pagenum" id="Page_89">[Pg 89]</span> -him to diminish the force of the belligerent blow, -to heal the stroke of the wound.</p> - - -<h3><i>Reprisals</i></h3> - -<p>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,<a id="FNanchor_47" href="#Footnote_47" class="fnanchor">[47]</a> 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:</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_90">[Pg 90]</span> -out by the stern words of disapproval used by the -President in his recent Notes to Germany.</p> - -<p>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.</p> - - -<h3><i>The American Caveat</i></h3> - -<p>The strangest part of the correspondence -remains to be noted. The United States Government, -in July, lodged a <i>caveat</i>, 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<span class="pagenum" id="Page_91">[Pg 91]</span> -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 <i>in rem</i>; 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 <i>in -rem</i>. 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<span class="pagenum" id="Page_92">[Pg 92]</span> -made against our action by the United States -Government, there is, with profound respect, ‘but -one answer—the Law.’</p> - -<p>In an Editorial Note in the May number of -the <i>North American Review</i>, dealing with the -relations between Great Britain and the United -States after the detention of the <i>Wilhelmina</i>, -this sentence occurs:</p> - -<div class="blockquot"> - -<p>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.</p> -</div> - -<p>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<span class="pagenum" id="Page_93">[Pg 93]</span> -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.</p> - -<p>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> - -<hr class="tb"> - -<p>P.S.—I have dealt with the subject on the -supposition that all contracts are made after the<span class="pagenum" id="Page_94">[Pg 94]</span> -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.</p> -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> -<p><span class="pagenum" id="Page_95">[Pg 95]</span></p> - -<h2 class="nobreak spacing" id="III">III<br> -<i>COTTON AS CONTRABAND OF WAR</i></h2> -</div> - -<div class="blockquot"> - -<p class="right"> -[<i>September 1915</i>]<br> -</p> - -<p>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.</p> -</div> - - -<p>Raw cotton has been proclaimed contraband of -war.<a id="FNanchor_48" href="#Footnote_48" class="fnanchor">[48]</a> 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, <i>sub judice</i>, 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,’<a id="FNanchor_49" href="#Footnote_49" class="fnanchor">[49]</a> by a reference to the ‘cotton question.’ -But I am free to do so now.</p> - -<p><span class="pagenum" id="Page_96">[Pg 96]</span></p> - - -<h3><i>Public Demand for Cotton to be made Contraband -of War</i></h3> - -<p>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?</p> - -<p>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<span class="pagenum" id="Page_97">[Pg 97]</span> -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.</p> - -<p>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;<a id="FNanchor_50" href="#Footnote_50" class="fnanchor">[50]</a> 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.</p> - -<p>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,<span class="pagenum" id="Page_98">[Pg 98]</span> -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 <i>omnia præsumuntur rite -esse acta</i>. 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 <i>per nefas</i> to -render the discussion intemperate. For the present, -therefore, at least a judicious silence is the better -and the wiser part.</p> - -<p>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 <i>all</i> 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<span class="pagenum" id="Page_99">[Pg 99]</span> -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 <i>all</i> 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.</p> - - -<h3><i>The Answer to the Critics of the Government</i></h3> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_100">[Pg 100]</span> -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 <i>in -express terms</i>, Germany must be allowed to get -her ‘innocent’ shipments of cotton by way of<span class="pagenum" id="Page_101">[Pg 101]</span> -neutral and contiguous ports. Verily, the American -fowler spreads the net in the sight of the British -bird.</p> - -<p>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 <i>all</i> -supplies from reaching the enemy. In other words, -that the doctrine completes the law of what we -have called the ‘new blockade.’</p> - -<p>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.<a id="FNanchor_51" href="#Footnote_51" class="fnanchor">[51]</a> It tells<span class="pagenum" id="Page_102">[Pg 102]</span> -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 <i>all</i> 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:</p> - -<p> -Sache donc cette triste et rassurante chose,<br> -Que nul, Coq du matin ou Rossignol du soir,<br> -N’a tout-à-fait le chant qu’il rêverait d’avoir.<br> -</p> - -<p>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<span class="pagenum" id="Page_103">[Pg 103]</span> -a lack of understanding of the real meaning of the -Order. This these articles have endeavoured to do.</p> - -<p>But, curiously enough, there is just one point -where the combined operation of the laws of -contraband and of blockade <i>may</i> 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,<a id="FNanchor_52" href="#Footnote_52" class="fnanchor">[52]</a> 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.</p> - -<p>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<span class="pagenum" id="Page_104">[Pg 104]</span> -to keep him in a good humour, but as a fighter -must do all he can to thwart him.’<a id="FNanchor_53" href="#Footnote_53" class="fnanchor">[53]</a> 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.</p> - -<p>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<span class="pagenum" id="Page_105">[Pg 105]</span> -the Fleet will deal with them whatever may be -their number.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_106">[Pg 106]</span> -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> - -<hr class="tb"> - -<p>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’<a id="FNanchor_54" href="#Footnote_54" class="fnanchor">[54]</a> had something to do with our -continuing to receive munitions of war from the -United States. The reply has not been much<span class="pagenum" id="Page_107">[Pg 107]</span> -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.’</p> - -<p>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.<a id="FNanchor_55" href="#Footnote_55" class="fnanchor">[55]</a></p> - -<p><span class="pagenum" id="Page_108">[Pg 108]</span></p> - -<hr class="chap x-ebookmaker-drop"> - -<p class="center"> -PRINTED BY<br> -SPOTTISWOODE AND CO. LTD., COLCHESTER<br> -LONDON AND ETON, ENGLAND<br> -</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a id="Footnote_1" href="#FNanchor_1" class="label">[1]</a> -The <i>caveat</i> of the United States Government, published in <i>The Times</i>, -24th July, 1915. This action is considered in the second article, at <a href="#Page_90">p. 90</a>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_2" href="#FNanchor_2" class="label">[2]</a> 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_3" href="#FNanchor_3" class="label">[3]</a> 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 <span class="hovertext" data-hover="Changed from existence">existence.</span></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_4" href="#FNanchor_4" class="label">[4]</a> See the <a href="#Footnote_49">footnote on p. 95</a>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_5" href="#FNanchor_5" class="label">[5]</a> See <a href="#Page_85">p. 85</a>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_6" href="#FNanchor_6" class="label">[6]</a> ‘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 <span class="hovertext" data-hover="Changed from Common">Commons</span>, 2nd Nov. 1915).</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_7" href="#FNanchor_7" class="label">[7]</a> 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_8" href="#FNanchor_8" class="label">[8]</a> This is expressly declared by Article 7 of the Hague Convention of -1907, No. 13, ‘respecting the <span class="hovertext" data-hover="Changed from Rgihts">Rights</span> 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_9" href="#FNanchor_9" class="label">[9]</a> <i>Letters of Historicus</i>, p. 121:—‘The recent unfortunate evasion of the -<i>Alabama</i> 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_10" href="#FNanchor_10" class="label">[10]</a> 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 <i>Emden</i> -has denied it.—<i>F. T. P.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_11" href="#FNanchor_11" class="label">[11]</a> Wallace’s (U.S.) Reports, p. 514.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_12" href="#FNanchor_12" class="label">[12]</a> A sketch of the view of international law presented in this article -appeared in some letters by the present writer to the <i>Daily Dispatch</i>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_13" href="#FNanchor_13" class="label">[13]</a> The Earl of Crawford, in the debate in the House of Lords on -Naturalisation, 6th January, 1915.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_14" href="#FNanchor_14" class="label">[14]</a> Cited, <i>Letters of Historicus</i>, 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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_15" href="#FNanchor_15" class="label">[15]</a> See the quotation from Azuni, cited <i>Letters of Historicus</i>, 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</p> - -<p>‘“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.</p> - -<hr class="tb"> - -<p>‘“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.”’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_16" href="#FNanchor_16" class="label">[16]</a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_17" href="#FNanchor_17" class="label">[17]</a> Cited, <i>Letters of Historicus</i>, pp. 133, 170:—‘Mr. Huskisson, in the -debate on the Terceira affair in 1830, cites the opinion of Mr. Canning to -the following effect (<i>Hansard</i>, vol. xxiv., N.S., p. 209):—</p> - -<p>‘“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?’</p> - -<p>The speech is cited at greater length on p. 170.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_18" href="#FNanchor_18" class="label">[18]</a> Cited, <i>Letters of Historicus</i>, 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 <i>in transitu</i>. 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.’ (<i>Commentaries</i>, vol. i., p. 142.)</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_19" href="#FNanchor_19" class="label">[19]</a> Cited, <i>Letters of Historicus</i>, p. 177.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_20" href="#FNanchor_20" class="label">[20]</a> See p. 17.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_21" href="#FNanchor_21" class="label">[21]</a> Article 4 of the Declaration of London, which stated accurately the -established doctrine.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_22" href="#FNanchor_22" class="label">[22]</a> From the Convention of 1901 between England and Russia, cited -<i>Letters of Historicus</i>, p. 92.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_23" href="#FNanchor_23" class="label">[23]</a> From a speech of Lord Grenville, cited <i>Letters of Historicus</i>, p. 108.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_24" href="#FNanchor_24" class="label">[24]</a> On p. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_25" href="#FNanchor_25" class="label">[25]</a> <i>Letters of Historicus</i>, pp. 165, 168.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_26" href="#FNanchor_26" class="label">[26]</a> <i>Letters of Historicus</i>, p. 132:—The following paragraph follows the -quotation cited in the text:—</p> - -<p>‘The true doctrine is enforced with singular clearness and force by -President Pierce, in his Message of December, 1854:—</p> - -<p>“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.”’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_27" href="#FNanchor_27" class="label">[27]</a> See p. 13.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_28" href="#FNanchor_28" class="label">[28]</a> The financial stability of the smaller States holds a very prominent -position in the argument of <i>The Great Illusion</i>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_29" href="#FNanchor_29" class="label">[29]</a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_30" href="#FNanchor_30" class="label">[30]</a> The real issue <i>must</i> be understood, or we shall find ourselves in a -blind alley. The case <i>must</i> be put as strongly as I have put it. The -Washington correspondent of <i>The Times</i>, 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_31" href="#FNanchor_31" class="label">[31]</a> <i>The Times</i> correspondent from New York, on January 11, thus -recorded an extract from Herr Dernburg’s speech at a Republican club -in America.</p> - -<p>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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_32" href="#FNanchor_32" class="label">[32]</a> The paragraph of the Protest which is here criticised is set out at -length on p. 81.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_33" href="#FNanchor_33" class="label">[33]</a> See p. 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_34" href="#FNanchor_34" class="label">[34]</a> 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.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_35" href="#FNanchor_35" class="label">[35]</a> See p. 37.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_36" href="#FNanchor_36" class="label">[36]</a> See the quotation from the Protest, set out on p. 89.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_37" href="#FNanchor_37" class="label">[37]</a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_38" href="#FNanchor_38" class="label">[38]</a> See p. 44.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_39" href="#FNanchor_39" class="label">[39]</a> See the footnote on p. 95.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_40" href="#FNanchor_40" class="label">[40]</a> See p. 62.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_41" href="#FNanchor_41" class="label">[41]</a> <i>Letters of Historicus</i>, p. 132, quoted <i>ante</i>, p. 48.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_42" href="#FNanchor_42" class="label">[42]</a> <i>Ibid.</i> p. 136.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_43" href="#FNanchor_43" class="label">[43]</a> President Pierce, cited <i>Letters of Historicus</i>, p. 132.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_44" href="#FNanchor_44" class="label">[44]</a> 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>i.e.</i> the Government of the United States] duty to see to it -that the <i>Lusitania</i> 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.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_45" href="#FNanchor_45" class="label">[45]</a> <i>Letters of Historicus</i>, p. 177.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_46" href="#FNanchor_46" class="label">[46]</a> 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:—</p> - -<p class="center" style="margin-left: 70%;"> -War Office,<br> -High Explosives Department,<br> -<i>19th March, 1915</i>.<br> -</p> -<p> -Institution of Mechanical Engineers,<br> -Storey’s Gate,<br> -Westminster, S.W.<br> -</p> - -<div class="blockquot"> - -<p><span class="smcap">Dear Sir</span>,—Lord Moulton desires me to acknowledge your letter of -the 11th March covering a further letter signed by various gentlemen.</p> - -<p>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. -</p> -</div> - -<p class="right"> -<span style="margin-right: 1em;">Yours faithfully,</span><br> -<span class="smcap">J. Bazire</span>.<br> -</p> - - -</div> - -<div class="footnote"> - -<p><a id="Footnote_47" href="#FNanchor_47" class="label">[47]</a> Dated January 7, 1807.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_48" href="#FNanchor_48" class="label">[48]</a> By Proclamation, August 18, 1915.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_49" href="#FNanchor_49" class="label">[49]</a> 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 <i>Quarterly Review</i>: ‘No attempt to -find a sound juridical basis for blockade has succeeded. Nothing higher -than “compromise by tacit international agreement” can probably be -found.’</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_50" href="#FNanchor_50" class="label">[50]</a> See p. 87.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_51" href="#FNanchor_51" class="label">[51]</a> I refer in support of this statement to Westlake’s opinion, cited in -the footnote on p. 95.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_52" href="#FNanchor_52" class="label">[52]</a> See p. 77.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_53" href="#FNanchor_53" class="label">[53]</a> See p. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_54" href="#FNanchor_54" class="label">[54]</a> See footnote on p. 59.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_55" href="#FNanchor_55" class="label">[55]</a> See p. 35.</p> - -</div> -</div> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter transnote"> -<h2 class="nobreak" id="Transcribers_Notes">Transcriber’s Notes</h2> - -<p class="center">Footnotes have been moved to the end of the book and renumbered.</p> - -<p class="center">The following spelling errors were fixed:</p> - -<table class="autotable"> -<tr> -<td class="tdc"><b>Location</b></td> -<td class="tdc"><b>Was</b></td> -<td class="tdc"><b>Changed to</b></td> -</tr> -<tr> -<td class="tdc"><a href="#Page_80">Pg 80</a></td> -<td class="tdc">the</td> -<td class="tdc">The</td> -</tr> -<tr> -<td class="tdc"><a href="#Page_82">Pg 82</a></td> -<td class="tdc">no</td> -<td class="tdc">on</td> -</tr> -<tr> -<td class="tdc"><a href="#Footnote_6">Ft 6</a></td> -<td class="tdc">Common</td> -<td class="tdc">Commons</td> -</tr> -<tr> -<td class="tdc"><a href="#Footnote_8">Ft 8</a></td> -<td class="tdc">Rgihts</td> -<td class="tdc">Rights</td> -</tr> -</table> -<p class="center">The following punctuation errors were fixed:</p> -<table class="autotable"> -<tr> -<td class="tdc"><b>Location</b></td> -<td class="tdc"><b>Change</b></td> -</tr> -<tr> -<td class="tdc"><a href="#Page_81">Pg 81</a></td> -<td class="tdc">"course;" to "course,"</td> -</tr> -<tr> -<td class="tdc"><a href="#Page_83">Pg 83</a></td> -<td class="tdc">"transportation." to "transportation.’"</td> -</tr> -<tr> -<td class="tdc"><a href="#Footnote_3">Ft 3</a></td> -<td class="tdc">Dot added at the end of footnote</td> -</tr> -<tr> -<td class="tdc"><a href="#Footnote_7">Ft 7</a></td> -<td class="tdc">’ added at the end of footnote</td> -</tr> -</table> - -<p class="center">All other punctuation and spelling was retained.</p> -</div> -<div style='display:block; margin-top:4em'>*** END OF THE PROJECT GUTENBERG EBOOK THE NEUTRAL MERCHANT ***</div> -<div style='text-align:left'> - -<div style='display:block; margin:1em 0'> -Updated editions will replace the previous one—the old editions will -be renamed. -</div> - -<div style='display:block; margin:1em 0'> -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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