Chapter II: Part 2

At the outbreak of war the nations are divided into two classes: those that are fighting and those that are not. To give them their scientific names, they are belligerents and neutrals. With the laws of war I do not concern myself, but only with those principles by which neutrals are supposed to govern themselves in order to avoid being swept into the vortex.

The only means by which this most desirable object can be achieved is by steadfastly bearing in mind the natural consequence of meddling in other people’s frays. It gives rise to the very simple maxim ‘He who joins himself to my enemy makes himself my enemy and may be treated as such.’ For the world’s peace the doctrine ‘He that is not with me is against me’ finds no place in the maxims of nations. Now there is a root-principle of neutrality, and if it is once let go all the subordinate principles will fly off and become isolated bodies careering through intellectual space, and doing an incalculable amount of damage. This principle is, that neutrality is a state appertaining to the Governments of the non-belligerent countries, and to the Governments alone. Azuni says[14] that ‘the state of neutrality is not, nor can be, a new state, but a continuation of a former one, by the Sovereign who has no wish to change it.’ But neutrality has nothing whatever to do with the individual, and all the puzzles which confuse the public mind arise from the fact that the word ‘neutral’ is applied indiscriminately to Governments and to individuals. The importance of appreciating this is manifest, for if it is unsound the German case, in which the contrary doctrine appears and reappears over and over again, is right; if it is sound that case tumbles to pieces. It is the persistence with which the German Foreign Office has dragged the opposite contention in by the heels on every possible occasion which makes it so necessary to insist on the recognition of this principle. The burden of its reply to the United States, the condition on which Germany will abandon its evil under-water practices, is that this principle should be given up, and the neutral trade in arms with its enemies declared illegal. If it could be thought for a moment that the United States was likely to be beguiled into abandoning it, then the peace of the world would indeed be in jeopardy. But, unfortunately for the Germans, the Americans know full well what the principle means, and the place it holds in the international system, for them to give even the slightest hint that this is possible.

What, then, does neutrality mean? That the Government of a non-belligerent State must do nothing to assist either belligerent, by providing him with arms, or ships, or men, or money. It is not difficult to understand why neutrality is not applicable to the individuals of the non-belligerent States. Nations subsist by international commerce, and there is no reason why, because two of them go to war, all their trade with the others should be declared illegal.[15] Therefore we get at once to this axiom, that war does not affect neutral trade with either belligerent, but the merchants in neutral countries are entitled to carry on business with them. And so the neutral merchant makes his first appearance on the scene.

_Contraband of War_

But to adopt the language of the day, _Krieg ist Krieg_; and if the neutral merchant has rights so also have the belligerents, and the doctrine of contraband of war gives expression to them, though few doctrines have been so loosely put into words. I think I am fairly stating the prevalent and mistaken opinion when I put it thus: that it is a breach of neutrality to trade in contraband, and that it is the duty of a neutral State to prevent its subjects from so trading. The Germans, in insisting on this popular idea, are juggling with the word ‘neutrality,’ and they do so in a way which is almost pathetic; yet their version of what they are pleased to call ‘true neutrality’ is so near to plausibleness that I must be at pains to elaborate the real principle. A belligerent has a perfect right to apply the maxim ‘Who helps my enemy becomes my enemy’ to the neutral merchant. But seeing that he is an unarmed civilian he cannot be made to fight. The remedy against him is therefore confiscation of his goods. The special way in which the merchant can help the enemy is by supplying him with munitions of war and other means of carrying on the fight. In order that there may be no mistake a more particular list of things which help the enemy is made out, called ‘Contraband of War.’ Now the belligerent has no right, much less any power, to prevent the merchant from selling these things to his enemy; but he gives him fair warning that if he sends them by sea cruisers will be on the look-out for his vessels, and they will be detained and searched and the contraband cargo seized. If the merchant turns to his Government and invokes its protection, talking about the ‘freedom of the sea’ and the ‘common highway of the nations,’ he will get for only answer, ‘The threat is justified and I cannot help you. You are assisting the enemy and must take your chance. I cannot prevent you taking that chance, nor can I order you to forbear, for then I should be interfering in favour of the other belligerent, and that would be a breach of neutrality on my part. All I can do for you is to see that you get fair play if you are caught, and proper damages if you are innocent.’ So now we get to the law in its first shape: the neutral merchant is free to carry on his trade with either or both belligerents to any extent, in arms or in anything else; but if he trades in contraband of war he takes the risk of losing his cargo. The justification for the rule can be put in simplest language. The belligerent has obviously no right, merely because he is at war, to order neutral merchants not to carry contraband to the enemy, nor even to expect that they will not. Neither can he insist that the neutral merchant’s Government should intervene on his behalf, and so commit a breach of neutrality towards the other belligerent.

* * * * *

Certain subsidiary questions arise at this point. First, the familiar distinction between absolute and conditional contraband. This follows in direct sequence from what has already been said. The belligerent is not fighting the civil population, but only the enemy Government and its forces. This compels him to interfere with neutral trade in everything that enables that Government to maintain its forces. But how to draw the line between things destined for the civil population and those destined for the forces, for things destined for the civilian may be serviceable to those forces, and may, in fact, be used by them.

The broad principle governing conditional contraband was stated by Lord Salisbury in the _dictum_ as to foodstuffs already referred to.

This principle was adhered to by us during the early months of the War, and was expressly referred to as having guided our action in Sir Edward Grey’s interim reply, of the 7th of January, to the American Note. But the War has revolutionised many ideas, and among them those which had led to the adoption of this principle by Great Britain in the face of the opposing contentions of other countries in the past, notably France and Germany. In his final reply to the Note, sent on the 10th of February, Sir Edward Grey frankly stated that ‘in the absence of some certainty that the rule would be respected by both parties to this conflict, we feel great doubt whether it would be regarded as an established principle of international law.’ Further, he pointed out certain new features in the circumstances in which the War was being waged which tended to show that an adherence to the old principle would be an unjustifiable restriction on our power of striking the enemy--(_i_) the existence of an elaborate machinery for the supply of foodstuffs for the use of the German army from overseas; (_ii_) the practical disappearance of the distinction between the civil population and the armed forces of Germany; (_iii_) the power taken by the German Government to requisition food for the use of the army, which rendered it probable that goods imported for civil use would be consumed by the army if military exigencies required it.

I confess that there are many considerations which challenge the logic of the distinction between absolute and conditional contraband, and give it more the character of a humanitarian concession. It introduces a new bone of contention between belligerents and neutral traders, and it opens up the grave danger of concealed contraband in cargoes which are themselves innocent: the concealment of copper, for example, in bales of cotton. In view of the more rigorous rule of blockade where the distinction disappears, it seems more in the nature of a preliminary measure in the process of throttling the enemy; the first turn of the screw, and a suggestion of sterner measures which are in store.

* * * * *

It is important to note that the determination of what is contraband, what absolute and what conditional, is left to each belligerent. Seeing that no law is possible on the subject, that agreement has got no further than the unratified Declaration of London,[16] and that it could not be for the enemy to decide, there is no one but the belligerent left. But it rests on a better reason. Each belligerent is master of his own fray; he can direct the attack at his own discretion, and can strike his blows where he pleases; and if we bear in mind what he _could_ do, the declaration that some things shall only be contraband if they are destined for the enemy’s forces is clearly a reservation of strength rather than an expenditure of force. There is no rule which imposes half-measures on any belligerent; he may exert all his strength and destroy or seize all his enemy’s property if he is able; the principle of blockade expressly provides for it; the only thing that is required of him is that, until he proceeds to extremes, he must be careful how he interferes with neutral property.

* * * * *

Another point requires explanation. Of course all enemy ships upon the seas are lawful prize. But it strikes one at once that here is a departure from the principle that you do not make war upon the civil population, for merchant ships are civilian property. The neutral merchant has, however, been looked after, for the Declaration of Paris has proclaimed that ‘neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.’ But in the converse case, it would not seem reasonable that enemy property in neutral ships should escape capture. The Declaration of Paris, however, steps in with the arbitrary rule that ‘the neutral flag covers enemy’s goods, with the exception of contraband of war.’ It cannot be said that this rule has done much to safeguard the ‘freedom of the sea’ for neutral vessels, for there is no doubt that guns consigned to Germany discovered on an American ship on a voyage from Galveston to Pernambuco would be lawfully seized; and as the guns may be seized the vessel may be detained and searched. But practical considerations work in favour of the neutral merchant. Not all the hosts of the Allied Fleets would be sufficient for the stupendous work which would be involved in putting this right into practice; therefore good sense has decreed that the destination of a ship to an enemy port shall be adopted as the practical working factor in its application, at least in the case of conditional contraband. But this has engendered the idea, which certainly is no part of the rule in its naked simplicity, that neutral ships sailing to neutral ports can carry enemy cargoes of contraband with impunity. Enemy destination is supposed alone to afford a presumption that there is contraband for the enemy on board; but if there were any doubt that the idea is erroneous, the words ‘whatever be their destination,’ in a judgment of Lord Stowell’s, to which I shall presently refer, must dispel it.

* * * * *

I have talked of the belligerent right of seizure. But civilised nations, recognising that in the most elementary statement of the case not all neutral cargoes even with an enemy destination are liable to seizure, have realised the necessity of establishing a tribunal by which this question of liability and consequent confiscation can be decided. With the right of some cargoes to escape there came into being at once the duty of withdrawing the decision from the summary process which the sailor would inevitably adopt. The question of liability might be a complicated one of fact: law might be involved: a Court was essential. But as to its constitution there were only three alternatives: enemy judges, obviously impossible; neutral judges, or an international Court, not very practicable; there remained nothing but judges of the belligerent country. Hence the anomaly of the Prize Court sitting in the seizing country’s territory, presided over by judges of that country. An anomaly, because it is contrary to the elementary rule that no man shall be a judge in his own cause; yet the judgment of a Prize Court is a judgment _in rem_; it passes property, and is accepted as binding against all the world by the Courts of all other countries. There have been in the past complaints of the decisions; sometimes they have been followed by diplomatic representations. But in these times when--I imagine for the first time in history--a civilised Government has been deliberately charged with having recourse to lying, it surely is a bright spot in the international horizon to think that the system of Prize Courts has produced judges who, as the world has recognised, have been among the greatest.

* * * * *

But the detention of neutral ships at sea, and the seizure of the contraband that they carry to the enemy, can be put much higher than a mere belligerent right; nor does it spring solely from the vindictive principle that the neutral aiding the enemy becomes an enemy; it is based on the supreme right of self-defence. It is the inevitable counterpoise to the right of the neutral merchant to continue trading, even in contraband, in spite of war. The importance of this trading right to the neutral merchant is the measure of the importance of this defensive right to the belligerent.

The right of the neutral merchant was put on the large commercial ground by Mr. Huskisson: ‘Of what use would be our skill in building ships, manufacturing arms, and preparing instruments of war, if equally to sell them to all belligerents were a breach of neutrality?’[17] But it can be put on a still larger ground. Without it the small nations would go to the wall. If there were such a doctrine as Germany now contends for, a great country with unlimited resources could speedily annihilate all the weak nations one after the other. There is no such doctrine as that when war is declared the warring nations are to fight it out with their own resources only. It is not the duty of neutral merchants to keep the ring and let the best man win. Sentiment does not come into the question. The neutral merchant may serve that side which he earnestly desires should win; but the other belligerent has the extreme penalty of confiscation in his hands, and sentiment must inevitably fade into the background.

The conclusion of the whole matter is that the two great war doctrines are, the right of the neutral merchant to trade in contraband, and the right of the belligerent nations to seize his cargoes. Combined, they make the simple principle that the neutral merchant may supply contraband to either side subject only to the risk of seizure by the other. ‘The right of the neutral to transport,’ says Kent, ‘and of the hostile Power to seize, are conflicting rights, and neither party can charge the other with a criminal act.’[18]

_The Right and the Duty of Search_

But the principle of seizure is still in a very crude state; and seeing that all cargoes destined for the enemy are not liable to seizure, and that for practical reasons it is neither possible nor advisable to bring in every cargo for adjudication in the Prize Courts, a supplementary right has been devised, known as the ‘right of search.’ It is the first step in the seizure, and, on the one hand, affords the belligerent an opportunity of letting non-contraband cargo go free; on the other hand, it gives the owner of the cargo an immediate opportunity of proving its innocent character. The right of search is often stated as an independent right, but it is in reality secondary to the right of seizure, and references to it obviously apply equally to the right of seizure. As to its unlimited nature I need do no more than quote the well-known words of Lord Stowell in the case of the Swedish convoy.[19] It is incontrovertible

that the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be their destination, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation.... This right is so clear in principle that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be captured, it is impossible to capture.

On this another rule has been grafted which is suggested by the enunciation of the law as to the right of search. That right _must_ be exercised for the very same reason that the right has been allowed, for otherwise you do not know whether you have the right to seize. From the _right of search_ has therefore developed the _duty to search_; and it is the omission to recognise this duty that has plunged the German Admiralty into its piratical career.

_The Doctrine of Continuous Voyages_

But the heart of the neutral merchant is desperately ingenious, especially when his country is contiguous to the theatre of war, and no sooner had he obtained the inch to which practical considerations made him appear to be entitled than he developed it into an ell of his own imagining. He argued thus: A neutral vessel bound to an enemy port is liable to detention, because the presumption is that she has cargo for the enemy, and that her cargo is probably contraband; the presumption also is that cargoes on board a vessel bound for a neutral port are not destined for the enemy, even though they may be contraband; nothing easier than to bring them across the sea in a neutral vessel with a neutral destination; all that remains to be done is to pass them on to the belligerent, either transhipping them into another vessel and sending it down the coast, out of the way of the attentions of the enemy’s cruisers, or better still, if the neutral and belligerent countries are contiguous, by rail across the border. And the best of the plan is that the shipper on the other side of the water, say some innocent merchant in copper in the United States, need know nothing about it, so that if by chance the cargo does get seized he will do all the shouting.

With this problem, devised in some such human fashion, the United States was faced during the Civil War, and the Judges settled it in characteristic and logical manner. They discovered the doctrine of ‘continuous voyages.’ It is nothing more than the simple application of elementary principles, and is arrived at by the elimination of the presumption of innocence which the voyage to the neutral port raised. All presumptions may be rebutted, and this one manifestly. ‘Be the destination what it may,’ the right of search existed; the presumption had only been allowed to grow because it was convenient. If goods destined for the enemy reached him by way of a neutral port, that port was only an intermediate destination; the ultimate consignee was the enemy, and there was a continuous voyage to him from the port of shipment. Therefore the seizure, and therefore the search, were justified, and could not be denied merely because ‘the final destination of the cargo was left so skilfully open.’

But the neutral merchant’s wits are sharpened by much profit in prospect; he is no simpleton, and a consignment of, let us say, copper from the United States is not likely to be addressed ‘Herr Krupp von Bohlen, Essen, _viâ_ Rotterdam, by kind favour of Messrs. Petersen & Co.’ Hence a most ingenious argument conducted on the principle ‘You shut your eyes, I’ll keep mine open.’ A consignment ‘to order’ (as ‘to the order of Messrs. Petersen & Co.’) may perhaps be legitimately seized, because the words do not clearly indicate the Dutch firm to be the real purchasers; but certainly not a consignment to a specific person (as to Messrs. Petersen & Co., Rotterdam). The sophistry is obvious; it does not negative the possibility that Messrs. Petersen & Co. are either acting as buyers for, or have imported the goods with the intention of passing them on to, Herr Krupp of Essen. And with the help of trade statistics the possibility may be discovered to be a probability.

_Embargo_

And now the pendulum swings back, and in the doctrine of embargo the really neutral merchant comes into his own. ‘Embargo’ is the action taken by a neutral Government in regard to goods which have been declared to be contraband by one or other of the belligerents; and the point to be emphasised is that it springs directly out of the doctrine of ‘continuous voyages.’ In order to prevent neutral ships destined to its ports with goods which one of the belligerents treats as contraband being detained and searched at sea, it prohibits the export of those goods from its own ports. The embargo satisfies the belligerent that these goods will not go out of the neutral country, and therefore will not get directly or indirectly into the hands of the enemy; he therefore feels justified in letting those ships go free, for the doctrine of ‘continuous voyages’ cannot apply. Now the reason for the embargo is that the merchants of the neutral country require the commodity for themselves. Suppose, for example, that Spanish merchants require copper for their own use; then in order to ensure cargoes of copper coming direct to Spanish ports without being interfered with at sea by the search of belligerent cruisers, the Spanish Government might put an embargo on copper: that is to say, might prohibit its export. There could be no better evidence that the Spanish merchants were importing the copper for their own trade, and that none of it would get through to the enemy. I can therefore best describe an embargo thus: It is action taken by a neutral Government to protect those of its merchants who do not desire to engage in trade in contraband from the consequences which would result from the action of those who do.

There is only one point in connexion with this doctrine which requires attention. Is the action thus taken by the neutral Government a breach of its neutrality to the other belligerent? For, undoubtedly, it does act favourably to the belligerent who has declared the goods to be contraband. The answer is simple. Once admit the strict logic of the doctrine of ‘continuous voyages,’ it follows that an embargo is a measure neither directed against one belligerent nor imposed to favour the other. It is simply a measure of self-defence, taken in order to prevent the national industries from suffering from the undoubted belligerent right of detention at sea and possible seizure.

There are other occasions in which an embargo may be resorted to, as in the case of the embargo on rubber imported by Great Britain to which reference has been made above.[20] That is purely a municipal question with which international law can have no concern.

_Blockade_

And now I come to the last point of all, blockade, which is the supreme manifestation of force at sea for the purpose of crushing the enemy. Here all minor considerations vanish. The artificial distinction between absolute and conditional contraband disappears; there is no longer any free list; neutral as well as enemy cargoes are subject to seizure, whether going to or coming from the blockaded port. The humanitarian concession that war is not made on the civil population finds no place; indeed, blockade derives much of its efficacy from the pressure which the strangling process brings to bear on that population. It has been described as a siege carried on at sea, but under somewhat more elastic conditions than a land siege. It is a convenient comparison, because all the outcry against its inhumanity is silenced by the recollection of Paris in 1870, and the vision of what Paris would have been in 1914 if the German plan had succeeded. It is rigorous, almost brutal, but it is war, and war admits of no half-measures which come within the code of civilisation; and this measure, extreme though it be, has long been recognised as legitimate warfare. Nor is there any conventional limitation as to the time when it may be resorted to. Coming as it naturally does at the end of the discussion to which other principles have led up, it might appear as if custom had decreed that it should only be resorted to after all other measures had failed. But there is nothing to prevent a war starting with a blockade; nothing, that is to say, in the theory of the subject, though there are any number of practical reasons which make it improbable. I presume, however, that if a great maritime Power were at war with a State which had only a miniature fleet, a blockade of its coasts would be the speediest and, therefore, the most humane way of bringing it to a conclusion. Certainly there is no rule or custom which prevents a Power at war from putting forth its full strength at once.

The ascending scale is easier for purposes of study; the mind grasps smaller things more easily, and they prepare the way for the appreciation of the greater things. But it is not by a process of logical development that we reach blockade after a study of contraband. Blockade is treated last more conveniently because it involves the greatest development of force against the enemy; but it would have been more logical to have begun at the other end of the scale, starting with the greatest exhibition of force, and letting the series of rules emerge in diminishing strength. In view of what remains to be said, it is of great importance to appreciate that the incarnation of sea-power, blockade, which cuts the enemy off absolutely from the outer world, lies at one end of the scale of what one belligerent may do to the other, and the seizure of contraband on a neutral ship going to an enemy port, which cuts the enemy off but partially, lies at the other end. There can then be no difficulty in justifying what comes in between.

But the most curious point is that it is only when we come to the recognition of this extreme manifestation of force that we meet with artificial rules. A blockade must be ‘effective.’ Yet this word, as to the meaning of which in its ordinary use there can be no doubt, is given in treaties and by the authorities a wholly artificial meaning. Sometimes it includes the exact contrary to effectiveness, as that ‘A blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather’[21]: during which the adventurous skipper may run in. It is not necessary to labour the point; but it is necessary, when measures short of ‘blockade’ have been taken by England, that the full extent of what blockade pressure upon neutral trade means should be understood.

In order to determine what characterises a blockaded port, that denomination is given only where there is, by the disposition of the Power which attacks it with ships, stationary or sufficiently near, an evident danger in entering.[22]

A blockade [by cruising squadrons allotted to that service, and duly competent to its execution] is valid and legitimate, although there be no design to attack or reduce by force the port or arsenal to which it is applied, and that the fact of the blockade, with due notice given to neutral Powers, shall affect not only vessels actually intercepted in the attempt to enter the blockaded port, but those also which shall be elsewhere met with and shall be found to have been destined to such port, with knowledge of the fact and notice of the blockade.[23]

These two quotations embody the principles of the English prize law. Article 17 of the Declaration of London contains a modification of them, and provides that ‘neutral vessels may not be captured for breach of blockade except within the area of operations of the war-ships detailed to render the blockade effective.’

* * * * *

I have come to the threshold of a subject of gravest importance, the new policy of the British Government adopted in answer to the ‘war-zone’ declaration of Germany, and I stop. To devote to it merely the end of an already long article would not be treating it with the consideration which it deserves, and which the question demands. Moreover, it would not be expedient for an ex-official Englishman to discuss the subject controversially at present. It is sufficient that the measure has been adopted after full and mature consideration by the Government, that the question is political as well as legal, and for us it must be taken to be within the legitimate powers of a belligerent. Presently, to judge from what has already happened, there certainly will be any amount of nonsense talked and written about it; already the term ‘paper-blockade’ has come in handily for the making of a paragraph, and some bold spirit has hit upon a brand-new term, ‘long-distance blockade.’ Also there has been some not very wise talk about ‘Two wrongs not making a right.’ I would suggest to those who feel irresistibly impelled to discuss the question that they should omit the word ‘blockade,’ for, as we have seen, it is a pernicketty term, and all sorts of legal niceties spring up in its train. I have endeavoured to show that ‘blockade’ is the extreme manifestation of the force known as sea-power against the enemy, that sea-power lies at the root of the authority which has been given to the series of principles governing belligerent interference with neutral trade, and that these principles are not a mere adventitious set of rules drawn up at odd times as wars at sea occasioned them. The principles and the rules have resulted from the play of natural forces, exerted by the belligerents on the one side, by the neutral merchant on the other. The rules are not even a compromise. The clash of forces has thrown off alternating sparks, rules recognising now the right of the one, now the right of the other. But in the supreme display of sea-power known as ‘blockade’ we find that the right of the belligerent does, as is inevitable, take the upper hand, and the right of the neutral disappears. And there are two French maxims worthy of note just now: ‘_Qui veut les fins veut les moyens_,’ and ‘_Qui peut plus peut moins_.’

* * * * *

P.S.--I must briefly refer to two questions which appear at first sight to conflict with the principles advanced in this article--Foreign Enlistment, and the King’s Proclamations of Neutrality.

Before agreeing with the United States as to the ‘Three Rules’ which, as I have pointed out,[24] deal solely with ‘foreign enlistment,’ the British Government declared that they could not assent to the contention that those rules were a statement of principles of international law in force at the time when the _Alabama_ claims arose. This is expressly stated in Article 6 of the Treaty of Washington. ‘Historicus,’ in one of his Letters,[25] cites some American authorities which bear out this view. Further, he explains the true inwardness of the Foreign Enlistment Act:--

The Enlistment Act is directed, not against the _animus vendendi_, but against the _animus belligerendi_.

It prohibits warlike enterprise, but it does not interfere with commercial adventure. A subject of the Crown may sell a ship of war, as he may sell a musket, to either belligerent with impunity; nay, he may even despatch it for sale to the belligerent port. But he may not take part in the overt act of making war upon a people with whom his Sovereign is at peace. The purview of the Foreign Enlistment Act is to prohibit a breach of allegiance on the part of the subject against his own Sovereign, not to prevent transactions in contraband with the belligerent. Its object is to prohibit private war, and not to restrain private commerce.

It is only when it has become the subject of agreement between two or more States that ‘foreign enlistment’ assumes an international as well as a municipal character. I presume that this municipal character has not been lost by the inclusion of the duty to prevent the fitting out or arming of vessels in Article 8 of the Hague Convention, No. 13, of 1907, relating to the duties of Neutral Powers in Maritime War.

As to the Proclamations of Neutrality, so much as recites and reinforces the Foreign Enlistment Act need not trouble us; the King’s loving subjects are exhorted to comply therewith. The rest of the Proclamations amounts to no more than a warning to subjects not to do ‘any acts in derogation of their duty as subjects of a neutral Power in a war between other Powers, or in violation or contravention of the law of nations in that behalf’; but, as ‘Historicus’ says,[26] ‘The nature of the penalty is pointed out with equal clearness and correctness--_viz._ the withdrawal of the King’s protection from the contraband on its road to the enemy, and an abandonment of the subject to the operation of belligerent rights.’ What those belligerent rights are I have endeavoured to explain.

II

_THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF THE SEA’_

[_August 1915_]

The American Notes to Germany--The Protest to Great Britain against the Order In Council--Mr. Norman Angell’s Plan for the Neutralization of the Sea--His Threat of War with the United States--German Idea of a ‘Free Sea’--General View of the Main Provision of the Order in Council--Application of the Law of Vendor and Purchaser: Contracts F.O.B.--Declaration of Paris: Free Ships make Free Goods--A Suggested Solution of all Difficulties--Effect of the Order in Council--American Acquiescence in a ‘Long-Distance Blockade’--Relation between Contraband of War and Blockade--Sovereignty over Neutral Ships--Withdrawal of National Protection from Ships carrying Contraband of War--Right of Search no Infringement of National Jurisdiction--Doctrine of ‘Continuous Voyages’ and the Order in Council--Reprisals--The Orders in Council of 1807--The American _caveat_--Criticism of Note in the ‘North American Review’--Continuing Contracts entered into before the War.

The quality of diplomatic courtesy between the United States and Germany is much strained, for the submarine pirates have sunk American ships, and have drowned American citizens bound on their lawful errands on British ships. On the 14th of May, Germany was informed for the second time that she would be held to strict accountability for any infringement of the rights of American citizens, whether intentional or accidental, and in her methods of attack against the trade of her enemies she was called on no longer to disregard ‘those rules of fairness, reason, justice, and humanity, which all modern opinion regards as imperative.’ On the 11th of June, the defence that the _Lusitania_ was carrying contraband was brushed aside as irrelevant to the question of the legality of those methods. The German reply being evasive and justificatory, on the 23rd of July a third warning was given: if the offence should continue unabated the action would be treated as ‘deliberately unfriendly.’ These Notes derive their dignity from their obvious restraint, from the measured insistence of their words, and from the scrupulous exactitude in the statement of the principles they appeal to. No saner judgment was ever pronounced against a criminal, and, though a golden bridge has been offered for retreat, they will stand against Germany as a permanent record of her iniquity.

But a curiously paradoxical situation arises with regard to ourselves. The very virtue of these Notes is bound to react to our prejudice; for other neutrals may too readily assume that those same high qualities are also to be found in the Note of the 30th of March, protesting against the British Order in Council issued as a reply to the German submarine attacks on merchant shipping in the ‘war-zone.’ There is also a minute minority of our own people who have a perverse habit of thinking that ‘after all’ we _may_ be wrong, and they will not fail to apply their favourite doctrine in this case.

In the aftermath of the War, far-off though it be, we can already see one question which will be insistent for solution: what effect will it have had on international law? It is essential, if England is to preserve her high place in the councils of the nations, that the sincerity of her words should not be open to question through any act which could be brought up against her of even doubtful legality. This Protest alleges that there is no doubt as to the illegality of our so-called blockade of Germany. With profound respect, I believe the Protest to be unsound in its premises and inaccurate in its conclusions, and that there is as complete an answer to it as to the previous Notes addressed by the United States Government to this country. But it has put a weapon into the hands of our enemy of which he has not been slow to avail himself; it has given Herr Dernburg a plank to dance on instead of a slack-rope; it has played upon the imagination of Mr. Norman Angell, who has been for so long engaged in shattering the illusions of others, and provided him with an illusion all his own. In the May number of the _North American Review_ he has caught some ideas hitherto floating in the air and shaped them into a new peace-theory which he believes will be acceptable to the American Government, and I presume, to other countries also. He has given it for title ‘The Neutralization of the Sea.’

_Mr. Norman Angell’s Plan for the Neutralization of the Sea_

Mr. Norman Angell is a serious writer. He has detected the weak points in what is called the ‘arbitrament of war,’ and has formulated his indictment against it in a series of concrete propositions. The wilderness of the world’s foolishness so re-echoed with his words that some thought they saw the wild rose blossoming. Yet, though the wilderness still breeds the thistle, his theories rested on a substratum of fact, and set people thinking when he first spoke to them. But his last excursion into the regions of the Unattainable has no such merit; he has been busy dreaming other men’s dreams. He foresees this contingency, which ‘English opinion has absolutely failed to envisage,’ that at the conclusion of the War America will see to it that ‘sea-law as it stands, and as America has accepted it,’ is ‘changed altogether.’ He says that ‘there is in England not the faintest realisation that the inevitable outcome of the present contraband and blockade difficulties will be an irresistible movement in America, for the neutralization of the high seas, or, failing that, their domination by the American Navy.’ So much of this as relates to England is perfectly true; there has not been ‘a line of discussion concerning it in the Press,’ for the all-sufficient reason that it is the ‘very coinage’ of Mr. Norman Angell’s brain, the ‘bodiless creation’ of his ecstasy. That ‘profound conflict of policy’ which, after unnumbered years, is to end in the transfer of the command of the sea across the Atlantic is not ‘even being discussed in England’; and it is therefore consoling to know that ‘it is probable that very many Americans themselves do not realise clearly how this dispute is developing, and how the United States will be pushed to take a stand for a profound alteration of the entire maritime situation.’ With this the phantasy of the ‘neutralization of the sea’ might be dismissed. It is a dangerous topic to discuss at this time, especially in America, with so uncertain a knowledge of ‘sea-law’ as Mr. Norman Angell displays; for others besides pacifist doctrinaires are making great play with it to the same audience--to wit, our enemies. Yet this advocate of peace threatens us with war if we will not accept his great illusion--war with the United States! And in order to avoid this conflict, ‘which certainly no one who wishes well to the two countries would care to contemplate,’ he demands the sacrifice of every principle on which we found our belief that Right must ultimately become Might. I can only assume that he does not see that the result would be the greater prevalence of the German doctrine that Might is Supreme.

We were once interested by Mr. Norman Angell’s studies in the ‘might have been’: were even ready to agree that as ‘might be’ they were worthy of serious consideration. But, frankly, his countrymen have no wish that England should be the _corpus vile_ on which this new experiment is to be tried. The Platitudinarians rejoiced when he came over to them; but Mr. Norman Angell is too serious a student for such company. Let him then, as other Englishmen who have attacked England have done, recant; I will find him excellent reason. He is not too familiar with the subject on which he has now laid profane hands. He has been struck with the glint of a phrase, but I am sure he does not know what the ‘neutralization of the sea’ really means. It means, first, that the high sea is to be forbidden to men-of-war of any nation whatsoever; secondly, that the high sea shall not be used by neutrals for war purposes--that is, for supplying belligerents with munitions of war: alternatively, that they should supply each belligerent alike without interference from the other; thirdly, that their trade in non-contraband should go on as if there were no war.

The ‘neutralization of the sea’ is therefore a convenient formula which may be substituted for that occult paragraph of the German reply to the American Note of the 12th of February, the meaning of which I have endeavoured to give in my first article: that little lecture to the American trader on the subject of ‘the practice of right,’ and ‘the toleration of wrong.’[27]

The paraphrase of this new formula is more easy. First: wars shall cease upon the high seas; and as ‘men-of-war’ obviously include transports, wars will thenceforward be confined to continents; bellicose islands will never again be allowed to participate. Permanent peace will thus be established in part of the world; and for the rest, seeing that you cannot expect to achieve everything at once, there must be just one more war, in which Germany will reduce Russia to impotence, absorb the small States, and crush France and Italy without the interference of troublesome over-sea soldiers; after which the beatific vision of a permanent Teutonic peace.

Secondly: with regard to so much of the formula as relates to neutrals, the justice of it must become apparent if you introduce as a prelude the tearful appeal so often heard of late from Berlin--‘You pray for peace, and yet you arm our enemies to fight.’ It is unkind to substitute for this--‘You will not let us crush our enemies in our own way’; yet it is its exact equivalent; and reduced to a practical proposition it means this, that when nations go to war they must fight with their own resources, which not even the dreamiest of the Pacifists would assent to, for then those little nations, in whose prosperity Mr. Norman Angell so much believes,[28] would go to the wall. It would give the strong States the power to crush them, picking their quarrel when and how they will. But if you will not agree to this so-simple proposition, then, for goodness’ as well as for profit’s sake, be logical and trade with both belligerents alike; do not let yourselves ‘be influenced in the direction of conscious wilful restriction’ by so trivial a matter as the ‘command of the sea.’ Sea-power on which it rests must be abolished altogether, which would be a great step towards permanent peace.

With the bearing of the ‘command of the sea’ upon the third phrase of its ‘neutralization’ this article specially concerns itself.

All this and more lies between the extremes of Mr. Norman Angell’s threat; either this, or the United States will take the command of the sea into its own hands. One may reasonably doubt whether this view commends itself to President Wilson; whether it has even entered the minds of the ‘influential backers’ of the demand for an enormously increased American fleet. Yet, if I may say it with profound respect, it is only another manifestation of the fundamental misunderstanding of the law of war which characterises the Protest itself.

Whether it be possible for the same end to be achieved by different means, the one lawful, the other unlawful, is a problem in casuistry which I shall not attempt to solve; but as a rough-and-ready rule of practical life we may take it that when two people seek to achieve equal ends they are equal to one another. Now the offensive Herr Dernburg--I use the term in no offensive sense, for I would not exclude myself from his Kirkwall compliment[29]--desires to forbid the sea to English cruisers in order that American vessels may not be let or hindered when they carry harmless ‘raw material’ to German ports. He asserts that any domination exercised beyond territorial waters which interferes with them ‘is a breach and an infringement of the rights of others.’ The _Emden’s_ raids on our commerce, carefully prepared and charted, ‘if my gossip Report be an honest woman of her word,’ two years before the War, are sufficient to show that this new opinion has sprung from the emergencies of the present moment. And the unoffensive Mr. Norman Angell also desires that the English cruisers should cease their vigil, in order that American vessels may help to complete ‘vast commercial arrangements’ entered into by some ‘Chicago or New York magnate’ with the German Government.

Applying then my rough-and-ready rule, Mr. Norman Angell and Herr Dernburg, desiring to achieve the same end, cannot be on opposite sides of the fray. Mr. Norman Angell has been beguiled by the sad picture which the Germans have drawn of starving Germany. Starvation, alas! is one of the weapons of war. The Germans have made full use of it in the past; and had their plans not miscarried Paris would again have lived on the vermin of the sewers, as it did in 1870. Mr. Norman Angell’s memory does not run to that period; but he lives in a time when what he conceives to be the possible result of British war policy has become the actual policy of the invader of Belgium: almost a whole nation ‘reduced to absolute starvation, including the women and the children,’ by the direct action of the German Government in preventing the distribution of American food. His vision is clouded by the pathos of imaginary pictures; he does not see what is going on before his eyes, and he allows himself to be blinded to the real object of all the German manœuvring diplomacy, to which the ‘Foodstuffs’ cry is but a convenient screen. An embargo on the export of munitions of war from the United States to the Allies Germany will secure if she can, by hook or crook, by fair means or foul, by argument or threat, by cajolery or intimidation, for necessity is driving her. Her one hope of salvation lies in getting the United States to break its neutrality, and the accomplishment of this ignoble task has been confided to the Bernstorffs, the Dernburgs, the Ballins, κ.τ.λ. These passionately exhort the Government of the States to control by domestic legislation its merchants’ commerce with the Allies, because the British Fleet in its right of war is controlling their commerce with Germany. The German Admiralty has substituted piracy for war on the sea; and now, powerless to enforce its war right, it struggles to achieve the same results by the devious process of an American embargo. To enforce their rights of war nations sacrifice the lives of men; Germany to make good her lost rights is willing to sacrifice a friendly State. In furtherance of this, unconsciously I feel sure, Mr. Norman Angell has lent his facile pen, and he threatens us with war with the United States unless we forgo the benefits which the command of the sea has given us. If it were possible to imagine President Wilson to acquiesce by so much as the movement of his little finger, granting to Germany any fraction of the indirect help she so urgently needs, then indeed clouds would gather on the horizon--there is no half-way house between neutrality and alliance with the enemy.[30] But we may rest assured there is no such possibility. Before, therefore, Mr. Norman Angell further develops his theory I would commend to his study those mighty disputations concerning the ‘freedom of the sea’ which were held twenty years ago between the United States and Great Britain, _quorum pars parvula fui_. _We_ knew what we were quarrelling about. But Germany! She tells the unlistening world that she is fighting for ‘the traditional _mare liberum_’! What can this _parvenu_ of the high seas know of its traditions? And for the delectation of pacifist ears this programme has been arranged: ‘a free sea,’ which shall mean ‘the cessation of the danger of war and the stopping of world-wars,’ and ‘the sending of troops and war machines into the territory of others or into neutralized ports’ is to be ‘declared a _casus belli_.’[31] From which it appears that the proposed remedy will hardly cure the disease.

‘It is with no mere idle use of high-sounding phrase that Great Britain once more appears to vindicate the freedom of the sea.’ Thus we spoke in the argument in the Behring Sea Arbitration. And we may continue so to speak with clearest conscience; for a careful scrutiny will show that the principle of the Order in Council is new, if you will, but in legitimate sequence from well-established doctrines, and has sprung from them in an ordered and scientific development. Of the American Protest which criticises it, speaking with all due respect for the learned authors of it, it is, I venture to think, open on its destructive side to this general remark: that it enunciates old doctrines in their popular form without that full examination of the underlying principles which the grave state of the world’s affairs demands. On its constructive side, however, it is interesting and worthy of careful study.

_General View of the Main Provision of the Order in Council_

Let us get at once a clear view of the position. England by this Order has aimed a very vigorous blow at the heart of her enemy, but the Government of the United States has warned her that she may not do it, not from any humanitarian considerations, but because it would react to the detriment of neutral merchants. It points out that there are some principles of international law, some documents or declarations, which stand in our way. If this be really so, then international law sets the profit of the merchant above the life of nations. The theory of the United States appears to be that the conduct of war is to be governed by the interests of commerce, even if they touch those of the belligerents. The truer theory is, I believe, that commerce, in so far as it touches the interests of the belligerents, is entirely subordinated to the exigencies of war. If the view of the United States is right, then the documents and the declarations have been heedlessly signed and made, and the power of England upon the seas has been recklessly frittered away.