Chapter I: Part 1

TRANSCRIBER’S NOTE

Footnotes have been moved to the end of the book and renumbered.

The following spelling errors were fixed:
Location Was Changed to
Pg 80 the The
Pg 82 no on
Ft 6 Common Commons
Ft 8 Rgihts Rights

The following punctuation errors were fixed:
Location Change
Pg 81 "course;" to "course,"
Pg 83 "transportation." to "transportation.’"
Ft 3 Dot added at the end of footnote
Ft 7 ’ added at the end of the footnote

All other punctuation and spelling was retained.

THE
NEUTRAL MERCHANT

IN RELATION TO THE LAW OF
CONTRABAND OF WAR AND
BLOCKADE UNDER THE ORDER
IN COUNCIL OF 11TH MARCH 1915

BY

SIR FRANCIS PIGGOTT
LATE CHIEF JUSTICE OF HONG KONG

_Reprinted, by permission, from_
THE NINETEENTH CENTURY AND AFTER

UNIVERSITY OF LONDON PRESS, LTD.

AT ST. PAUL’S HOUSE, WARWICK SQUARE, E.C.

1915

These articles appeared this year in the April, August, and September numbers of _The Nineteenth Century and After_, and I have to thank the Editor for allowing me to reprint them so soon after publication. They are a justification of the much-attacked Order in Council of 11th March, 1915.

In reply to the German submarine menace the British Government resorted, by way of Reprisals, to a method of strangling the enemy’s commerce which, on the one hand, was wider in its scope than any list of contraband, and, on the other, was free from the ‘legal niceties’ which surround a declaration of blockade. Neutral merchants declared that it hit them hard, and the Government of the United States protested that it exceeded the limits which international law has placed to the right of a belligerent to interfere with neutral trade. The British Government replied justifying its action, and there, one would imagine, the matter should have rested for arbitration after the War. But the Government of the United States has continued its protests, has indeed just renewed them in most vigorous language, desiring to deflect us, in the interests of its commerce, from a course which must materially assist in crushing our enemy.

It is not customary, except in one clear case, for a neutral Government to insist that a belligerent should adopt, _in medias res_, its views of a question which does not involve any issue of peace or war: to press on him, _in medium bellum_, a modification of his belligerent action which might cost him the victory. The clear case of exception is when, philosophy at fault, there are not two sides to the question, but one only, and that testified to by flagrant breaches of the laws of humanity and war. Everything else is fair fighting; and for a neutral Government, because its own commercial interests are affected, to insist on the adoption of its view of a debateable point, to persist that it is not debateable, to take action, in itself a violation of international law,[1] savours of unneutral service. In the absence of suggestion of anything but perfect good faith, in the face of much demonstrated care of the interests of its citizens, the abandonment by a neutral Government of the dispassionate attitude which neutrality requires not merely heartens the enemy but must result in rendering him material assistance.

The United States Government, by placing England and Germany on the same plane of protest,--the ‘lawless conduct’ of the belligerents--has, as it seems to me, lost the true measure of national right and wrong on which humanity must rest its laws if civilisation is to continue. In redressing wrongs the law has never placed injuries to life and property on the same level. A neutral Government whose citizens have suffered in life by the action of one belligerent, in fortune, however grievously, by the action of the other, must yet be guided as to the manner of its protests by the relative degree of the offences.

Now, assuming England’s high-sea policy to be illegal, two things appear to me clear: First, that we are entitled to claim from the United States a consideration of the circumstances which led to the commission of the offence of which we are accused, in order to see whether, as Reprisals, it was not justified. The Protest of the 2nd of April expressly refuses this consideration; it proceeds on the assumption that Reprisals can never be resorted to against an enemy, if the interests of a neutral trader are affected: Secondly, that, quite apart from the Arbitration Treaty, we are justified in insisting on a reference to arbitration after the War as the complete present answer to the charge, for this all-sufficient reason, that on calm review it may appear that our action is warranted by international law. There is no indication in the last paragraph of the new Protest that this view is acquiesced in by the United States.

Reduced, therefore, to its simplest expression, the position taken up by the United States is this: Our trade is of greater importance than your victory. Admitting the hypothesis to the full that a neutral country has no interest in the result of a war, is unconcerned which side wins, yet I do not believe that this attitude finds any warrant in the principles on which international law is based. But there is another and very practical reason in favour of my second contention. Too strenuous a protest is apt to make men look a little below the surface of mere words, to turn their attention curiously to trade statistics. They have been dexterously handled in the British answers. A neutral Government is not the best judge of its merchants’ claims; inevitably it becomes their advocate, and in the tangle of discussion is apt to identify itself with commercial transactions which, it is common knowledge, often need the closest investigation. The true position of a neutral Government, the almost complete severance from its protection of merchants who deal, however indirectly, with a belligerent, demands, I venture with great deference to assert, an altogether different attitude from that taken by the United States Government.

International law has of late been the subject of much loose talk, by the German especially; and some colour has been lent to his assertions by the nature of the American Protests to Great Britain. International law does not profess to govern the conduct of belligerents between themselves, but only the laws of war. Except in so far as these have been incorporated in conventions, except in so far as the principles of humanity have been reduced into concrete words and so have become laws binding the consenting nations when they fight, it is not the province of international law to mitigate the blows of war.[2] A neutral Government is not concerned with the methods of warfare adopted by a belligerent until they ape the barbarian. Then, even in the absence of convention, it is entitled to protest in the name of our common humanity. Conventions to which both belligerents and the neutral are parties entitle it to support its protest by diplomatic action. But, convention or no convention, more strenuous action is justified by the application of elementary legal principles when its citizens, pursuing their normal avocations, are injured.[3] International law, properly understood, governs the relations of belligerents with neutrals. Its sanctions are not belligerent action, nor any action against the alleged offender, which may even indirectly benefit the enemy. Arbitration after the War, and compensation, are the only remedies when neutral property has been injured. Then, and only then, can the principles of international law be calmly discussed; then, and only then, can any new departure by a belligerent be tested by a reference to fundamental principles. The reason is obvious. International law is a progressive science; it has not yet pronounced its last word on the relations between belligerency and neutrality. A neutral Government is not entitled to assume that it alone is the judge of what that last word will be.

These fundamental principles have been lost sight of in the Protests of the United States to Great Britain. Yet there never was a case in which calm discussion was more necessary, for we have come to a point when the question is definitely raised whether international law is to stand still where the last war left it, or whether its principles are sufficiently elastic to allow of their adaptation to modern developments of the machinery of war. I say deliberately that this calm discussion must result in the completest justification of the Order in Council; if it does not, the doom of international law is certain.

But the discussion which has arisen round the Order in Council has one peculiar feature. It is, I suppose, one of the blessings resulting from freedom of speech that our own people should criticise the action of their Government, even when the country is engaged in a conflict which must be fought out to the bitter end. To so much of the world as lies beyond the shadow of the clouds of war, that little fragment of it which is still capable of calm thinking, this curious spectacle has been presented, that to the passionate assertions of the Central Powers, to the dispassionate threats of the United States, there has been added the angry criticism of our own people, in which the press and correspondents, of high and low degree of learning, have joined without remorse. I have looked in vain for one defender of the faith.

Assuredly American dialectic needed no such heartening; the insistence that the American view of international law is alone worthy to be received needed no such support as it has had from our own people. It is true that some of them have been inspired by the British desire that, whate’er betide, England must fight fair. But the end which the angry criticism had in view, and professes to have achieved, was not this at all; it was that the Government should take other steps to accomplish what had already been accomplished by the Order in Council, should decline on a range of lower action, and a narrower line of legal thought. The new Protest, in paragraph 19, does not fail to make the point. Whatever it may be worth, the distinguished chemists, foremost among the critics, are responsible for furnishing the United States with the argument.

The demand for action, so strenuously expressed, during the Cotton-Contraband discussion, entirely ignored what the Government had already done. There may have been cause for criticism as to the effectiveness of executive action. I do not profess to know; but whether this were so or not, it was not to be remedied, as it was attempted to be remedied, by an attack on the validity of the Order in Council. It was said that many lawyers are agreed that it was invalid. I have ventured to present the other side for public consideration.

A system of law, though intermittently created as occasion has arisen, must, if it is to be taken as serious law, stand the test of an evolutionary analysis. The doctrines of contraband and blockade cannot stand for a moment if they are based on no principle, if they go no further back than the commentators have carried them.[4] I have endeavoured to show that the principle on which both are based is the same, and is to be found in the Right of War: that both are the inevitable consequences affecting neutral merchants who have any relations with the enemy of the exercise of legitimate belligerent action against him, and that they originate in, and, though varying in the intensity of its action, are both linked with sea-power and the efficiency of its visible agent, the Fleet. That German commerce should have received its death-blow, that neutral merchants should have suffered in consequence, are the natural, the inevitable results of the command of the sea which in fair fighting in times past England has won for herself.

But there has been introduced into the controversy an expression, the mere mention of which seems to send men’s minds dancing with unreason--the ‘Freedom of the Sea.’ Very dexterously, the Germans have substituted for it another expression, the ‘Equality of the Sea.’ In spite of the captivating simplicity of the words, it is used with sinister intent, in the hope to redress the inequality of the hostile Fleets.

If a Fleet is a legitimate weapon of offence and defence for nations whose borders are on the sea, then the fortune of one aspect of war between them must rest with the superior Fleet, and when war does come the imagined equality of the sea, whether for belligerents or for neutrals who cross the track of it, vanishes.

The ‘freedom of the sea’ is a cry for something as inarticulate as the other things that the wild waves are saying. It means no more, no less, than does the freedom of the King’s highway, which is subject to a multitude of other rights often reducing it to nothing. The ingenuous pacifist sees in it the fulfilment of the promise that wars shall cease. Yet if that and all the other fanciful ideas which have gathered round it--the ‘neutralization of the sea,’ for example--come to prevail, wars will indeed cease, but in a way the pacifist least dreams of. Hidden in that imagined ‘freedom,’ and the ‘rules’ which have been suggested to ensure it, lies the power of the Strong to make one final war upon the Weak on land, and the end of it the annihilation of the Small Nations; for it means this, that when they are attacked they must defend themselves without help in munitions of war from neutral merchants across the sea.

The ‘freedom of the sea’ is not even complete in time of peace, for it may not be set up by those who have violated the laws of the nations which border its shores. But when war comes the ‘freedom of the sea’ must give way to the rights of war; and no one dare _now_ deny that to declare war may be a sacred right, to decline the gage of battle an infamy. The only freedom that remains, and even this is curtailed by the right of search, is that of neutral merchants to carry on their trade with one another unmolested, so long as it does not deliberately enmesh itself in the lines and areas of battle. But it must never be forgotten that the United States is not vindicating the simple right of neutral nations to trade with one another untrammelled by belligerent action. It maintains, and all the struggles of its advocacy are devoted to establishing this proposition, that ‘innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory.’[5] Here, then, is the whole matter ‘bounded in a nut-shell.’ It is admitted that a belligerent may forcibly prevent _all_ goods going from a neutral directly to the enemy: it is admitted that he may also prevent certain specified goods (called ‘contraband of war’) going from a neutral indirectly (that is, through another neutral country) to the enemy. The United States protests that international law ends with these two propositions: that there is no underlying principle linking the two admissions, making them only two illustrations of a larger fact: that there is a chasm between them that can never be bridged, even though not merely the conditions of war, but also the constitution of armies have changed: that international law must stand at the point it reached ten years ago, and a belligerent stand passively by while neutral merchants sustain the enemy with the things which give him life to continue the fight.

The mere statement of the dispute shows that the calm of a High Tribunal of Arbitration is the only atmosphere conducive to its just discussion.

That right of war upon the sea, as well as that pure right of neutral traders upon the sea, the Mistress of the Seas must steadfastly maintain, for she holds them in trust for the nations and may not barter them away. Above all, she must know her own mind as to what that right is. She has spoken with full knowledge, and, as I believe, rightly. It would be a grievous blow to her prestige if she were now to abandon the position she has taken up. I cannot imagine such an abandonment to be even dreamed of.[6]

* * * * *

The scheme of these articles is as follows. In the first, published before the American Protest of the 30th of March was received, I have dealt with the principal points in the early American Notes to Great Britain and Germany, and have traced a process of evolution to which all the principles of contraband and blockade, as we used to know them, do in fact conform. In the second, after combating Mr. Norman Angell’s project for the neutralization of the sea, I have shown how this process of evolution warrants, by a legitimate process of development, the practice laid down by the Order in Council. In the third, I have applied these principles to the discussion to which the Government yielded when it put cotton on the list of contraband.

Two questions lie altogether outside the scope of the articles. First, the policy which, prior to the issue of the Order, refrained from making cotton contraband. Secondly, the policy which guides executive action in carrying out the Order. They deal simply with the Order as it stands, not with the method of its enforcement.

* * * * *

I have, for the greater stability of my edifice, used the reinforced concrete of the logic and arguments which Sir William Harcourt created in the famous, but almost forgotten, ‘Letters of Historicus,’ incorporating in the footnotes more extended quotations from those Letters. In a few instances I have added a paragraph to the articles as they originally appeared, for the sake of greater clearness.

I trust that the manner in which I have set forth what I conceive to be the true law of the dispute will give no offence to my friends in the United States. I am sure it will not, for some who took part in the Behring Sea Arbitration are still among the Minority, and they will remember that those discussions did not want for strenuousness with Phelps of counsel for the United States, and Charles Russell for England.

_F. T. P._

_November, 1915._

CONTENTS PAGE

INTRODUCTION v

I. THE NEUTRAL MERCHANT: THREE AMERICAN NOTES
AND THE ANSWERS 1

II. THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF
THE SEA’ 49

III. COTTON AS CONTRABAND OF WAR 95

THE NEUTRAL MERCHANT

I

_THE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS_

[_April 1915_]

The ‘Letters of Historicus’--General Position of the Neutral Merchant--Use of Neutral Flags by Merchantmen to Escape Capture or Destruction--First American Note to Great Britain--British Interim Reply--The Complete Reply--First American Note to Germany--German Reply--Evolution of the Doctrines of Contraband of War and Blockade--Meaning of Neutrality--Contraband of War--Conditional Contraband--Declaration of Paris as to Freedom of Neutral Goods and of Enemy Goods under Neutral Flag--Prize Courts--The Conflicting Rights of Neutral Merchants and of Belligerents--The Right and Duty of Search--Doctrine of Continuous Voyages--Embargo--Blockade--The New Policy of the British Government--Foreign Enlistment--Proclamations of Neutrality.

The intellectual barometer stands at ‘Hazy’ on the subject of neutrality, even in this country. In Germany it has ceased to register anything which even pretends to be intelligent. In the United States there are what might aptly be called cyclonic and anti-cyclonic disturbances. If my view as to English knowledge of the subject be questioned, I would ask my readers how often they have of late met in the newspapers the phrase ‘duties of neutrals,’ and what answer they have found to the inevitable query, ‘Which be they?’ Within the last few weeks I read a contribution to _The Times_ from ‘A Legal Correspondent,’ in which these duties were referred to in most bewildering fashion. He said that there existed special bonds between this country and the United States; that both have stringent Foreign Enlistment Acts; that both agree to what are known as the ‘Three Rules’ of the Washington Treaty as to the duties of neutrals, and that both had promised to bring these Rules to the notice of other States. This statement was painfully misleading; the ‘Three Rules’ were agreed to as the basis on which the Alabama arbitration was to be decided, and related solely to the subject known as ‘Foreign Enlistment.’[7] But if by ‘duties of neutrals’ is meant, as I presume to be the case, the duties of neutral Governments, they can be summarised in one great negative--to do nothing, except when they are called on to defend their neutrality against the action of either belligerent, _inter alia_, in the cases provided for by the Hague Convention of 1907 relating to neutrality. So far-reaching is this universal negative that it includes non-interference with their merchants in their dealings with belligerents.[8] If, however, the term refers to duties of neutral merchants, then it is inapt and misleadingly inaccurate; for the existence of any such general duty as to cease trading, for which the Germans are so strenuously contending, is wholly imaginary.

Fifty years ago another continent was riven with war, and there was much talk of what a neutral might do, and might not do; and there appeared in _The Times_ a series of letters signed ‘Historicus,’ in which, among other things, the elementary principles of neutrality were very strenuously and very lucidly set forth. Very strenuously, for there was a certain M. Hautefeuille who had filled the world--like the Dernburgs of to-day--with much unsound doctrine. Now unsound doctrine was a thing which stirred Mr. Vernon Harcourt to the depths of his soul, and those only who have heard him know what waves of wrath surged up in his brain. He had the art of transferring to paper the billowy language he was wont to use; and as you read you hear the rotund sentences rolling onwards to swamp the frail bark of his adversary. But he had another art: of clear thinking and lucid exposition. In the series of Whewell Lectures which I attended at Cambridge in the year of grace ----, of which I still preserve my notes, he seemed to make plain the whole mystery of Public International Law. New times have produced new teachers of the old heresies; and it is good to turn once more to the pages of the ‘Letters of Historicus,’ for again the neutral nations are invited to ‘upset the whole fabric of international law which the reason of jurists has designed and the usage of nations has built up.’ To adapt his references[9] to Burke and Canning to himself, ‘I would that we had yet amongst us his multitudinous eloquence and his poignant wit to do justice upon this presumptuous sciolism’ of the German Foreign Office. The world, indeed, seems still to need his teaching. From what one hears in the market-place I gather that there is a vague feeling in the air that our case is not _quite_ so good as we should like it to be; that there is a mysterious crevice in our armour-joints through which, if not the German, at least Uncle Sam has pricked us. There is a nebulous ‘something’ about neutrality, especially about ‘neutral duties,’ which seems to preclude accurate thinking; and even the ‘Legal Correspondent’ does not always pierce the haze. So the student, in memory of an hour spent after lecture in his master’s rooms in Neville’s Court, when kindly patient, and so lucidly, he expounded to him the meaning of a difficult decision, will endeavour to weave into a continuous whole the threads of the doctrine which he taught. It is not that people do not know; only that they forget.

* * * * *

The neutral merchant is the centre round which the principal doctrines of international law dealing with neutrality have gathered. It seems strange at first that in time of war the commercial rights of a mere money-making civilian should invariably form the subject of endless discussions; but this civilian really holds a very important position in the waging of war; it could not go on without him. Each belligerent has need of him, and it is essential to each to prevent the other from satisfying that need. To block the enemy’s communications with the neutral merchant is one of the surest ways of ending the war. To this end many ingenious things have been devised, and as many equally ingenious to counteract them; and in this the merchant’s fertile brain has materially assisted. The problem is a complex one, for each belligerent as a buyer must strive to keep him in a good humour, but as a fighter must do all he can to thwart him. As for the neutral merchant himself, he is calmly indifferent to the merits of the fight; nothing pleases him so much as to be ‘Jack of Both Sides.’ He will take all he can get from one side and cry out for more from the other. When the War is over we may muse philosophically on some aspects of the Protest which the United States Government has addressed to Great Britain on behalf of its merchants; for the present, with all its serious issues hanging in the balance, the American Notes require careful study, for they themselves raise an issue as serious as any which the War has raised--whether Great Britain has been true to the principles she has so often preached, or whether the German accusation, or the American suggestion, that she has violated them can be substantiated; whether, when all is over, we shall be able to say proudly that it has been War with Honour.

_The Use of Neutral Flags by Merchantmen_

Two Notes have been addressed to Great Britain, and it will be convenient to refer at once to the second Note, which deals with the use by our merchantmen of neutral flags. The neutral merchant is directly concerned with this custom of the sea, for he may have cargo on board, and if this means of deceiving the enemy’s warships is declared to be illegal he runs the chance of its being sent to the bottom.

The facts which gave rise to the Note are of the simplest. On the 30th of January two German submarines appeared off Liverpool, and, giving the crews ten minutes to take to the boats, torpedoed and sank some British merchant vessels. On the 6th of February the _Lusitania_, coming up the Irish Channel at the end of her voyage from New York, hoisted the Stars and Stripes and came safely to harbour. To these simple facts are to be added, according to the German version, that the Admiralty advised the master by wireless to hoist the American flag; or had issued a secret order to merchant ships in general to hoist a neutral flag in the circumstances. Whether these facts are accurate or not is absolutely immaterial; but the Germans have based on them the charge of violation of international law. It should be noted with surprised wonder that the German Admiralty seems to have forgotten that the _Emden_ sailed into Penang harbour flying the Japanese ensign, and that this, added to her other disguises, enabled her to accomplish her raid successfully.[10] The United States Government, having been appealed to by Germany, addressed a Note to Great Britain, to the great jubilation of her adversary; for she had just planned the infamy of her new piracy, and the smart of the thrashing administered to herself was somewhat mitigated by the fact that the other boy got a ‘wigging’ too. The position of the United States is so delicate, her diplomatic officers have achieved so much, her people have done and said so many things that have gone to our hearts, that it is impossible to be querulous at the presentation of the Note; yet, when it is analysed, it seems to go far beyond what was necessary to the occasion, and it has enabled Germany to confuse, in her usual clumsy fashion, the _post_ and the _propter_ in the sequence of events.

The Government of the United States reserved for future consideration the legality and propriety of the deceptive use of the flag of a neutral Power in any case for the purpose of avoiding capture; but pointed out that the occasional use of the flag of a neutral or of an enemy under stress of immediate pursuit, and to deceive an approaching enemy, was

a very different thing from the explicit sanction by a belligerent Government for its merchant ships generally to fly the flag of a neutral Power within certain portions of the high seas which, it is presumed, will be frequented with hostile warships. A formal declaration of such a policy for the general misuse of a neutral’s flag jeopardises the vessels of a neutral visiting those waters in a peculiar degree by raising the presumption that they are of belligerent nationality, regardless of the flag they may carry.

The Note declared that the United States would view with anxious solicitude any such general use of its flag; it would afford no protection to British vessels, it would be a serious and constant menace to the lives and vessels of American citizens, and a measure of responsibility for their loss would be imposed on the Government of Great Britain.

The reply of the British Government was short and to the point. It dwelt on the fact that the Merchant Shipping Act sanctions the use of the British flag by foreign merchantmen in time of war for the purpose of evading the enemy; that instances are on record when United States vessels availed themselves of this facility during the American Civil War, and that, therefore, it would be contrary to fair expectation if now, when the conditions are reversed, the United States and neutral nations were to grudge to British ships liberty to take similar action. ‘The British Government,’ it continued, ‘have no intention of advising their merchant shipping to use foreign flags as a general practice, or to resort to them otherwise than for escaping capture or destruction.’ Finally, the responsibility for the loss of neutral vessels in such circumstances must fall on the nation which had deliberately disregarded the obligations recognised by all civilised nations in connexion with the seizure of merchant ships.

It is clear that the American Note had special regard to the future, and expressed no opinion as to what had occurred in the case of the _Lusitania_. Now she did not fly the American flag to escape capture, but to escape the probability of being unlawfully sunk by a German submarine; for, in view of what had already happened off Liverpool, it is more than probable that a submarine was in lurking for her; to judge from the German irritation at her escape, it is practically certain. What she did, therefore, was in self-defence, and even unlawful things become lawful when they are done to escape extreme danger. The Note refers to the use of a neutral flag to escape capture, the reply justifies it, and the Merchant Shipping Act sanctions it. But, seeing that capture by the enemy is equivalent to destruction, quite apart from the methods of the new piracy, there can be no doubt that the principle of self-defence covers this case also. Self-defence is a natural law which has been embodied in all legal systems, and Nature has sanctioned it as a special plea. ‘Protective coloration’ is the device by which she defends the weak from the unscrupulous strong; it is ‘mimesis,’ a mimetic change, which Nature not only approves in the case of actually hunted animals, but also and mainly devises for those which are likely to be hunted. So the analogy is complete, and the change of her ‘colours’ by the _Lusitania_ to escape the lurking danger of the submarine stands justified by both natural and human law. I prefer this explanation to the theory of the _ruse de guerre_.

By a _ruse de guerre_, or stratagem of war, I understand the adoption of some means of deceiving the enemy in war, some device out of the ordinary course of fighting. The old adage that ‘all is fair in love and war’ is not strictly true, for some stratagems are not unjustifiable in war, and some are. The _Emden_, when she rigged up a fourth funnel, so making believe she was some other ship, resorted to a legitimate stratagem which had unfortunate results for our Allies’ ships in Penang harbour. The German soldiers who put on our dead men’s uniforms also resort to a stratagem; but we are fastidious in our methods of fighting, and do not admit that this is ‘playing the game’ of war. But, whether legitimate or illegitimate, these are _ruses de guerre_; and the term is hardly applicable to a stratagem adopted by a non-combatant to avoid an unlawful trap set by the enemy for his destruction.

_The First American Note to Great Britain_

I pass now to the more serious matter of the Note of friendly protest of the 28th of December, which was an amplification of one already presented on the 7th of November. It opens with the declaration that the present condition of the trade of the United States, resulting from frequent seizures and detentions of cargoes destined to neutral European ports, has become so serious as to require a candid statement of the view of the United States Government that the British policy is an infringement of the rights of its citizens, and denies to neutral commerce the freedom to which it is entitled by the law of nations. An improvement had been confidently awaited on account of the statement of the Foreign Office that the British Government ‘were satisfied with guarantees offered by the Norwegian, Swedish, and Danish Governments as to the non-exportation of contraband goods when consigned to named persons in the territories of those Governments.’ But although nearly five months had passed since the War began, it was a matter of deep regret to find that the British Government

have not materially changed their policy and do not treat less injuriously ships and cargoes passing between neutral ports in the peaceful pursuit of lawful commerce which belligerents should protect rather than interrupt. The greater freedom from detention and seizure which was confidently expected to result from consigning shipments to definite consignees rather than ‘to order’ is still awaited.

The general principle is then laid down that, ‘seeing that peace, and not war, is the normal relation between nations,’

the commerce between countries which are not belligerents should not be interfered with by those at war unless such interference is manifestly an imperative necessity to protect their national safety, and then only to the extent that it is a necessity.

But articles on the list of absolute contraband consigned to neutral countries from America have been seized and detained ‘on the ground that the countries to which they were destined have not prohibited the exportation of such articles.’ Italy had prohibited the export of copper, and shipments to Italian consignees or ‘to order’ cannot be exported or transhipped; copper can only pass through that country if it is in transit to another country. Yet the British Foreign Office had ‘declined to affirm that copper shipments to Italy will not be molested on the high seas.’

In the case of conditional contraband there is a presumption of innocent use when it is destined to neutral territory; yet the British authorities had seized and detained cargoes without

being in possession of facts which warranted a reasonable belief that the shipments had in reality a belligerent destination as that term is used in international law. Mere suspicion is not evidence, and doubts should be resolved in favour of neutral commerce, not against it.

Cargoes had, in fact, been seized ‘because of a belief that, though not originally so intended by the shippers, they will ultimately reach’ the enemy. A consignment of conditional contraband shipped to a neutral port does not raise a presumption of enemy destination; such a presumption is directly opposed to Lord Salisbury’s statement, made during the South African war, as to foodstuffs (equally applicable to all conditional contraband) which, ‘though having a hostile destination, can be considered as contraband only if they are for the enemy forces. It is not sufficient that they are capable of being so used. It must be shown that was in fact their destination at the time of their seizure.’ As to concealed contraband, it is conceded that there is a right to detain neutral ships when there is sufficient evidence to justify belief that contraband articles are in their cargoes; but the ships cannot be taken into port and there detained ‘for the purpose of searching generally for contraband, or upon presumptions created by special municipal enactment which are clearly at variance with international law and practice.’ Many of the industries of the United States are suffering ‘because their products are denied long-established markets in European countries which, though neutral, are contiguous to the nations at war.’ The effect on trade is not entirely cured by reimbursements for damages suffered when an enemy destination has not been established; ‘the injury is to American commerce as a whole through the hazard of the enterprise and the repeated diversion of goods from established markets.’

Resolved into its simplest expression, the complaint is a criticism of the way in which the doctrine of ‘continuous voyages’ has been applied by the British Government; but there is also a veiled criticism of the doctrine itself; and, by way of further complaint, it is pointed out that the embargoes which have been declared in certain countries have proved insufficient to prevent the doctrine being applied. As to the principle asserted that doubts are to be resolved in favour of neutral commerce, it has no warrant in common sense, for it puts a premium on the neutral merchant’s ingenuity, an ingenuity which has itself given rise to the doctrine of ‘continuous voyages.’ Seeing that commerce is in the balance against a nation’s existence, the doubt must obviously be resolved in favour of the more important consideration. The Note is also open to the general criticism that it is based on the position of the vendor and ignores the purchaser. But the true criterion of destination must often be found in the intentions of the neutral purchaser of which the neutral vendor may be ignorant.

An interim reply was sent by the British Government on the 7th of January. It begins with a cordial concurrence in the general principle that a belligerent should not interfere with trade between neutrals unless such interference is necessary to protect the belligerent’s national safety, and then only to the extent to which this is necessary; with this qualification, however, that

we shall endeavour to keep our action within the limits of this principle, on the understanding that it admits our right to interfere when such interference is, not with _bona-fide_ trade between the United States and another neutral country, but with trade in contraband destined for the enemy’s country, and we are ready, whenever our action may unintentionally exceed this principle to make redress.

The figures showing the export of copper from the United States in 1913 and 1914 to Italy, Sweden, Denmark, and Switzerland (‘countries which, though neutral, are contiguous to the nations at war’) are then compared, and their astonishing increases duly noted. The conclusion is very clear.

With such figures the presumption is very strong that the bulk of the copper consigned to these countries has recently been intended not for their own use, but for that of a belligerent who cannot import it direct.

Granted the soundness of the American proposition, the British case falls within it; the ‘imperative necessity for the safety of the country’ has arisen. As to concealed contraband the case is even clearer. Cotton is not on the list of contraband. But information has reached the Government that ‘precisely because we have declared our intention of not interfering with cotton, ships carrying cotton will be specially selected to carry concealed contraband; and we have been warned that copper will be concealed in bales of cotton.’ For this there is only one remedy: the cargo must be examined and the bales weighed; further, this cannot be done at sea, therefore the ship must be brought into port. The general justification of the action of the British Government is couched in these weighty words, which go to the foundations of the whole law of contraband and the right of search: ‘We are confronted with the growing danger that neutral countries contiguous to the enemy will become, on a scale hitherto unprecedented, a base of supplies for the armed forces of our enemies and for materials for manufacturing armament.... We endeavour, in the interest of our own national safety, to prevent this danger by intercepting goods really destined for the enemy, without interfering with those which are _bona-fide_ neutral.’

The extraordinary procedure adopted by the United States Government of _prohibiting_ the publication of manifests within thirty days after the departure of vessels from American ports, obviously increased the difficulties of the British Government in exercising its right of search even in the most ordinary circumstances. If I am right in my view that the duty of neutrals is to do nothing, for the simple reason that any action may be of assistance to one of the belligerents, it must be confessed that this order comes perilously near to a breach of neutrality.

The reply deals also with the seizure of foodstuffs, but it is unnecessary, in view of subsequent action taken in regard to them, to refer to this part of the document. It also mentions a somewhat unusual complaint, not included in the American Note, of our own embargo on rubber, imposed in consequence of a new trade in exporting rubber from the United States in suspiciously large quantities to neutral countries, which had sprung up since the war. The complaint is not very intelligible, because it looks at embargo from the wrong point of view. The right point of view is explained later in this article.

The full reply of the British Government was dated the 10th of February. It contained the very important declaration that our action against neutral vessels ‘has been limited to vessels on their way to enemy ports or ports in neutral countries adjacent to the theatre of war, because it is only through such ports that the enemy introduces the supplies which he requires for carrying on the war.’ In other words, the importance of the doctrine of ‘continuous voyages’ at the present time is emphasised; and its necessity is demonstrated by a further review of trade statistics, which led to the inevitable conclusions ‘that not only has the trade of the United States with the neutral countries in Europe been maintained as compared with previous years, but also that a substantial part of this trade was, in fact, trade intended for the enemy countries going through neutral ports by routes to which it was previously unaccustomed.’

But even more important is the opinion deliberately expressed that international law, like every other judge-made law, is a live body of principles which can and must keep abreast of the times. Its rules are not arbitrarily devised as occasions arise, but are based on principles which have developed with the progress of the world. Any apparent changes in the law which Great Britain has introduced are not arbitrary inventions which have in view merely the crushing of Germany, but are justified by well-known principles applied to new conditions. The process of adaptation is no new one. The advent of steam-power had a notable influence on the development of the law, for the facilities introduced by steamers and railways, while they simplified the task of the neutral merchant in contraband, had enormously magnified the difficulties of the belligerent.

The question in issue can be stated in almost primitive fashion. Are the rules which governed the rights of belligerents when there were no railways, to govern them when the transit of contraband over the frontier of a neutral and a belligerent State has been made so easy? The answer is not an absolute negative; it is that the old principles are living principles and are capable of extension to meet the new occasions.

But to explain the reasons for a step which has already been taken and to find sound reasons for a step which has to be taken are two different things. The first requires reasoning power, the second imagination; and I find this in the position boldly taken up and courageously insisted on, that the growth in size of ocean liners has rendered a further amplification of the old rules necessary. They must be brought into port for examination.

The American loves the cut and thrust of argument, and must at once have acknowledged that the reference to the fact that the doctrine of ‘continuous voyages’ originated with the Judges of the United States was not a _tu quoque_, but a brilliant illustration of the principle of development of the law. It is abundantly clear from every paragraph of this remarkable reply that this doctrine has become the one principle worth fighting for now, for our national safety depends on it. And the American will appreciate the delicacy of the compliment which can find no stronger arguments than those used by the Judges of the United States Prize Courts when they established it.

The earlier American Note of the 7th of November had contended that ‘the belligerent right of visit and search requires that the search should be made on the high seas at the time of the visit, and that the conclusion of the search should rest upon the evidence found on the ship under investigation, and not upon circumstances ascertained from external sources.’ But the major premiss is that the actual destination of the vessel to the neutral port may be merely a cloak for the real destination of the cargo to the enemy; and the citation from the judgment in the case of the _Bermuda_[11] is a complete answer:

The final destination of the cargo in this particular voyage was left so skilfully open ... that it was not quite easy to prove, with that certainty which American Courts require, the intention, which it seemed plain must have really existed. Thus to prove it required that truth should be collated from a variety of sources, darkened and disguised; from others opened as the cause advanced, and by accident only; from coincidences undesigned, and facts that were circumstantial. Collocations and comparisons, in short, brought largely their collective force in aid of evidence that was more direct.

To introduce the rigid rules of evidence necessary to a common-law action in a question which is not a lawsuit at all, but an inquiry, would obviously cripple the effectiveness of the doctrine of ‘continuous voyages’; the occasions with which that doctrine deals have by force of circumstances become the most important source of supply of those commodities which a belligerent must at all hazards prevent his enemy obtaining. And if we go back to the root-principle, that the whole law and every part of it depend on the right of self-defence, no stronger argument is necessary to justify the principle laid down in this case, nor for the provisions of the Order in Council of the 29th of October, which throw the burden of proof of his innocence on the neutral owner of contraband.

_The First American Note to Germany_

I now come to the Note to Germany of the 12th of February, delivered in consequence of the notification of her under-sea policy, and for which ‘Warning’ is the only appropriate term. The statement of the principles set at defiance is introduced by the satirical formula ‘It is unnecessary to remind,’ the whole object of the Note being to remind the German Government that the interference with the freedom of the sea is limited to search and blockade, and that in the absence of effective blockade the belligerent nationality or contraband character of the cargo must be determined before a vessel may be destroyed.

To this Note came the German reply which set forth England’s iniquities and violations of international law, which were in startling contrast to the scrupulous observance of ‘valid international rules regarding naval warfare’ by Germany. There is a complacent reference to the American Note to Great Britain of the 28th of December, which sets out the details of our iniquities ‘sufficiently, though not exhaustively’; but the main interest of the document is its method of dealing with the duties of neutral States towards Germany.

Neutrals have been unable to prevent the interruption of their commerce with Germany, which is contrary to international laws.

Germany is as good as cut off from her overseas supply by the silent or protesting toleration of neutrals not only in regard to such goods as are absolute contraband, but also in regard to such as, according to the acknowledged law before the war, are only conditional contraband or not contraband at all. Great Britain, on the other hand, is, with the toleration of neutral Governments, not only supplied with such goods as are not contraband or only conditional contraband, but with goods which are regarded by Great Britain, if sent to Germany, as absolute contraband--namely, provisions, industrial raw material, etc.--and even with goods which have always indubitably been regarded as absolute contraband.

There follows a reference ‘with greatest emphasis’ to the enormous traffic in arms which is being ‘carried on between American firms and Germany’s enemies’; after which come two sentences most typical of German occultness:

Germany fully comprehends that the practice of right and toleration of wrong on the part of neutrals are matters absolutely at the discretion of neutrals and involve no formal violation of neutrality.... If it is the formal right of neutrals to take no steps to protect their legitimate trade with Germany, and even to allow themselves to be influenced in the direction of conscious wilful restriction of their trade, on the other hand, they have a perfect right, which they unfortunately do not exercise, to cease contraband trade, especially in arms, with Germany’s enemies.

The involutions of these astonishing sentences are worthy of the White Queen at her best, and it is quite a difficult exercise to arrive at their meaning. So far as I have been able to get at it, it is something like this:--Trade is free; you neutral merchants have a right to trade with Germany as with Great Britain; why don’t you? That would be the ‘practice of right.’ Germany has as much right to have you trade with her as Great Britain has; why do you deny her that right? You allow yourselves rather ‘to be influenced in the direction of conscious wilful restriction’ (in other words, you submit to having your cargoes seized by Great Britain). Of course you have the right to take no steps to protect your legitimate trade with Germany, and you take none (in other words, you refuse to resist the seizures of your cargoes by force); that is ‘the toleration of wrong.’ And so you cease to trade with Germany. But you have also a perfect right to cease trading in contraband (especially in arms) with Great Britain. Why don’t you? In her case you do not allow yourselves ‘to be influenced in the direction of conscious wilful restriction.’ To all of which the neutral merchants reply: When you begin to make an appreciable attack upon our trade with Great Britain and seize our cargoes, then you may be sure that we shall be influenced ‘in the direction of conscious wilful restriction’ of that trade also. But until that time arrives, we regret that we cannot take the risk of having to run the gauntlet of the British Fleet. In all seriousness these mysterious sentences mean no more than that Germany has lost such influence upon the sea as she ever had, and the neutral merchant has made a note of it and governs himself accordingly. Therefore the traffic in arms, in spite of her pathetic protests, must go on.

_THE EVOLUTION OF THE DOCTRINES OF CONTRABAND OF WAR AND BLOCKADE_

So much for the Notes and the Answers, and I pass to the realm of international law.[12] In a recent debate in Parliament a noble Lord suggested that, in view of German disregard of it, we need not be ‘too fastidious’ in our application of its principles.[13] Even at the best of times, before war shook things to their foundations, the layman was disposed to look on it as a thing of shreds and patches. I am sure he would be surprised to hear that the principles are coherent, and that there is a thread of simple common-sense running through all the various doctrines. The fate of the Empire depends on the action which the Government takes on these important questions, its honour on this action being strictly in accordance with the law which the nations have agreed to. I make no apology, therefore, for treading once more the well-beaten track, for I take it that it is the business of the good citizen to know what he is talking about, and in order to help him I shall begin at the very beginning. And the beginning is War.

_The Meaning of Neutrality_