Chapter III: Part 3

I have endeavoured in the first article to get into sharper relief than popular notions give to it the position in which the neutral merchant stands to a belligerent and to his own Government, and also to recall the real meaning of neutrality. The Order in Council had at that time been issued, but the American Protest had not been delivered. I intimated, however, that it seemed probable that a close examination of fundamental principles would show that the Order was abundantly justified by them. The publication of the Protest confirms me in that view.

And, first, I venture to contest the main doctrines on which the criticism of the Order rests.[32] I deny that a belligerent nation has been _conceded_ ‘the right of visit and search, and the right of capture and condemnation’ of neutral ships engaged in unneutral service or carrying contraband for the enemy. I deny that a belligerent nation has been _conceded_ ‘the right to establish and maintain a blockade of an enemy’s ports and coasts and to capture and condemn any vessel taken in trying to break the blockade.’ On the contrary, I assert that these are _belligerent rights_ which may be _asserted_ and exercised against the neutral merchant whose vessels are engaged in rendering those services to the enemy: that consequently ‘a nation’s sovereignty over its own ships and citizens under its own flag on the high seas’ does suffer ‘diminution in times of war’ to the full extent to which a belligerent exercises those rights: and that to this extent ‘the equality of sovereignty on the high seas’ finds no place in war. And I further contend that the proposition, to the establishment of which all the argument of the Protest tends--that ‘innocent shipments may be freely transported to and from the United States through neutral countries to belligerents’ territory’ without risk of seizure and confiscation--is not true when one of the belligerent Governments has declared its intention of stopping all shipments, and has taken effective steps to enforce that intention. If the proposition were true in these circumstances the Order in Council would be a breach of international law.

_Application of the Law of Vendor and Purchaser_

Before making good this position a preliminary point raised by the Protest must be dealt with--the bearing of the Declaration of Paris on the question. Even the learned must have been somewhat confused by the isolated, almost casual, reference to one of its rules--‘Free ships make free goods’; or to be more accurate, ‘The neutral flag covers enemy’s goods, with the exception of contraband of war.’ Its relation to the context is more than obscure, for this rule applies to the seizure of _enemy property_, whereas the doctrines on which the law of contraband and the law of blockade rest apply to the seizure of _neutral property_. It is clear, therefore, that there are two very distinct planes of thought, and we cannot step lightly from one to the other without putting in peril the logical structure of the discussion.

‘The rules of the Declaration of Paris of 1856, among them that free ships make free goods, will hardly at this day be disputed by the signatories of that solemn agreement.’

Thus, and no more, the Protest. The United States is not a signatory to the Declaration, and its final clause provides that it ‘is not and shall not be binding, except between those Powers who have acceded, or shall accede to it.’ But let us put this technical objection on one side and, admitting the rule to be a generally accepted principle, see what it has to do with the question in dispute.

The merchant promotes his trade with foreign parts by many ways, but he never loses sight of one essential: payment for his goods. It is true that credit is the life of commerce; but during war conditions are changed, and while it may be that some still adhere to peace-time customs, the ‘rumble of the distant drum’ induces others, probably the more numerous, certainly the wiser, to ‘take the cash and let the credit go.’ On the other hand, the purchaser’s object is to get the goods, more especially if he is a belligerent and the goods munitions of war: and one very sure way of obtaining possession of the document of title to them is by paying cash or by giving some substitute which the vendor accepts as its equivalent. Thus cash enables the wishes of both parties to be satisfied; and the law facilitates the acquisition of property after a sale by means of the contract for delivery of goods ‘f.o.b.,’ free on board, under which the property passes to the purchaser from the moment the goods are on board ship. Now it is obvious that if the neutral merchant is wise in his generation he will, having in view the risks ahead of him, secure payment for his goods and get rid of them ‘f.o.b.’ Then all those troublesome questions of seizure by belligerent cruisers and condemnation by Prize Courts concern _him_ no longer. The goods become enemy cargoes consigned to one of the belligerents, the vendor has got his money, and they may go to the bottom of the deep blue sea, or into the factories of the other belligerent, for all he cares.

Here then is the puzzle. Seeing that the law makes such ample provision for his protection, allows him to trade in such fashion that he can with safety and profit get rid of his troublesome property in cargoes when he has shipped them, even in cargoes of contraband of war, what is the meaning of all this talk about the violation of the rights of the neutral merchant upon the high seas? They have vanished; and even the ingenuous protests against the too strenuous application of the doctrine of ‘continuous voyages’ lose much of their pathos when we realise that the cargoes (of, say, cotton, copper, rubber, or even foodstuffs) seized on their way to neutral ports may not be, need not be if he has exercised reasonable care, the neutral vendor’s property at all. They ought to be enemy property, or at best the property of purchasers in ‘countries which, though neutral, are contiguous to the nations at war’; and then the plaint should come from this side of the Atlantic. The whole question has now taken a different aspect, and the presumption, based on overwhelming statistics, that _these_ neutral purchasers are acting as agents for the enemy, or are anticipating enormous profits from sales to the enemy, is wholly justified and most pertinent to the issue. Looking therefore at the case in the rough, the neutral American vendor, if he has acted with common prudence, is out of Court as a complainant. And, further, his position is vastly different from an ethical standpoint if he has chosen to give credit to the enemy, or to a purchaser who is probably the enemy’s agent; still more different, almost dwindles to vanishing-point, if he has sent the goods on the chance of ‘payment if safe delivery.’ From a purely commercial point of view, therefore, if seizures of such cargoes are to be made the basis of complaint by the Government as the legitimate mouthpiece of United States traders in the bulk, the only possible ground on which it could be presented is that they may affect trade generally; the complaint would be of ‘the injury to American commerce as a whole,’ as it was, in fact, put in the Note of the 28th of December.[33] But then the damage is too remote from the alleged wrongful injury to sustain a plea. Interference with trade is the inevitable consequence of war; the more strenuously sea-power is exercised the greater the interference, and the command of the sea inevitably makes the interference one-sided.

But it may, with respect, be questioned whether the allegation is correct. The effect of war on commerce _generally_ must be judged by its results on commerce _as a whole_; there must be a general balance-sheet of United States trade in which the profits of some merchants must be set against the losses of others. Is it quite certain that American commerce as a whole has not derived much benefit from the War rather than suffered serious loss? There seems to be some confusion of the particular with the general. In regard to this ground of complaint war is entitled to the same treatment as the public good, which is never condemned for the individual wrong it does and must do, or the world would have stood still long ago.

The position of affairs may, therefore, be stated very clearly: only in those cases in which the property in the cargoes seized has not passed out of the vendor do the questions of contraband and blockade affect him. But where the property has passed to an enemy purchaser or his agent, then other questions arise which depend on the Declaration of Paris.[34]

_The Declaration of Paris--Free Ships make Free Goods_

The Declaration of Paris has been roundly abused by many who believe that it clipped the wings of England’s sea-power, having been expressly designed thereto and weakly assented to by England. This provision--‘Free ships make free goods’--covers goods consigned to an enemy Government! But looking at it merely as it affects neutral merchants, it fails lamentably as a practical doctrine, because in the attempt at conciseness its authors forgot to be explicit. As it stands it is not true. It has not interfered with the right of search because contraband of war is excepted, and the fundamental argument that you cannot seize if you cannot search, ‘whatever be the ships, whatever be the cargoes, whatever be their destination,’[35] still holds good. Nor has it interfered with or curtailed the rights incident to blockade; then the doctrine of the Declaration vanishes, for there are no ‘free ships’ by which the enemy’s goods may be made free, all goods on board being liable to seizure.

But the great defect of the provision is that it leaves deplorably vague the question by whom the ‘freedom’ of the enemy goods may be raised: by the neutral carrier or the enemy owner; and it is precisely this point which seems to have been ignored in the American Protest.

This question also arises very directly under the Order in Council, for the first clause provides that the goods discharged from a neutral vessel seized on its voyage to a German port, other than contraband of war, shall, if they are not requisitioned for the use of His Majesty, ‘be restored by order of the Court, upon such terms as the Court may in the circumstances deem to be just, to the person entitled thereto.’ Now, if the property in the cargo has by law passed to an enemy purchaser certain questions as to the making of the order would, I presume, arise, which for obvious reasons I do not discuss. But it is quite certain that the American vendor could not appear and make the claim on behalf of such a purchaser; equally certain that the United States Government would have no _locus standi_. The position under the Order in Council is the same as would arise in normal circumstances if, for example, the question before a Prize Court were as to the ‘effectiveness’ of a blockade. The neutral owner of the ship would argue the case on his own behalf, but not on behalf of an enemy owner of the cargo. As, therefore, the United States Government could not argue the legal case on behalf of an enemy purchaser, and as enemy purchasers are the persons specially cared for by this rule of the Declaration of Paris, it is difficult to see how it can argue the question diplomatically. But, not being altogether inexperienced in diplomacy, it has limited its protest to the case of its neutral merchants.[36] Then, with great deference, the invocation of the Declaration of Paris is irrelevant, for the whole point of the clause is the freedom of the goods and not the freedom of the ship; and the question of the freedom of the ship cannot be raised, because the exception of contraband of war from the rule carries with it a forced submission to the belligerent right of search. And, further, the question whether the Order in Council is an illegal extension of the law of blockade is not affected by the Declaration, but must be decided on other grounds.

But ‘quick returns make rich merchants,’ whether they result from small profits or large. And in war-time the neutral merchant, being a mere man of commerce, appears to be quite ready to ‘pay for the boundless gain’ which the sale of munitions gives him by taking the ‘boundless risk’ of seizure and condemnation, keeping the property in his cargoes while they are on the high seas. Should disaster follow, there is always ‘the Government’ to fall back on; and if only it can be persuaded to wave the banner of ‘neutral rights’ with sufficient dexterity, the chances are in favour of compensation. Now, if all neutral merchants would take Reason for their guide the Declaration of Paris would reveal hitherto unsuspected virtues. Let me commend the following brief articles to the consideration of the diplomatic professors at the next Hague Conference: First--‘For the future avoidance of tortuous discussions so common in the past, the law of contraband, and so much of the law of blockade as affects neutral merchants, are hereby abolished, and all contracts for the sale of all goods whatsoever made between neutral and belligerent merchants shall for all purposes be deemed to be contracts f.o.b.’ Secondly--‘For the greater peace of the world, and the prevention of those financial difficulties hitherto so commonly resulting to private individuals from war, it is agreed that “free ships make free goods”; so only that such free ships, whatever be their cargoes, whatever be their destination, may be taken by either belligerent, without undue show of force or unnecessary use of explosives, into his nearest port, there to abide the decision of a Prize Court whether they be goods designed for the use of the enemy forces; and, if it be shown to the satisfaction of the Court that they be not so designed, then they shall be declared to be “free goods,” and if the person entitled thereto be a neutral they shall be delivered up to him on such conditions as the Court shall think just; but if he be an enemy, other than the enemy Government, then they shall be held until the conclusion of peace, when they shall be delivered up.’

Is this a scheme straight from the Councils of Utopia? I wonder! Perhaps for the present it may be left with the judicial formula ‘I should like to hear the point argued.’ But this is certain, that if contracts with belligerents were made with the same business caution as contracts in peace-time, all the clamour about the ‘rights of neutral merchants’ would die down, for they would have none which need protection, and Notes of friendly remonstrance and dexterously worded Protests would be unnecessary. But we live in an age of great unreason; and the law of contraband and all that part of the law of blockade which affects neutral merchants have been the inevitable result. The Declaration of Paris might have got rid of many difficulties with a little more study of actual facts, but it has not; and so, in spite of good intention, we must wrestle, and I propose now to wrestle, with the problems it has left unsolved.

_The Effect of the Order in Council_

The essential condition of blockade, as hitherto understood, is that the blockading squadron must be in the immediate offing of the blockaded port. We have placed our cruiser cordon at a considerable distance from the German coast. And here, to the general, is the stumbling-block in our way; to the American, is the sign of our backsliding. Yet, curiously enough, _if we had declared a blockade_, any question which might have arisen as to its validity owing to the position of the cordon is set at rest by the Protest itself.

The rules of international law can only preserve their vitality if they keep pace with the progress of science; if they do not, they must pass into the limbo of forgotten things. Hence the necessity for a clear discernment between essential principle and unessential detail. In the first article I pointed out that this discernment was singularly lacking in the early protests of the United States Government. The details of our doings on the high seas were criticised as not being in conformity with action which tradition justified; our all-sufficient answer was that they were justified by the principles on which the traditional action was based. Now although, as I think, in this last Protest the American Government has judged what we have done by the narrow formulas of a bygone age, when it comes to treat of ‘blockade’ it frankly abandons them; it literally leaps forward, and brushing them aside shows us that we might have taken other measures of belligerent discipline which would have reacted far more seriously against the neutral merchant than those embodied in the Order. The American Government believes--it is, when untroubled by the complainings of its merchants, far too profound a student not to believe--that the law of blockade greatly needs rewriting. Rules which were adapted to Nelson’s frigates can have little or no application to the battle-cruisers of to-day. But they were the outcome of a principle, and that principle remains. The American Government agrees that for a blockade the cordon of ships in the offing is no longer practicable in the face of an enemy ‘possessing the means and opportunity to make an effective defence by the use of submarines, mines, and aircraft,’ and is therefore no longer to be insisted on. It believes that a ‘long-distance blockade’ is now inevitable. The importance of this admission cannot be exaggerated. It might, I should have thought, be contended that a ‘blockade’ cannot be effective if the enemy possesses sufficient means of offence--in other words, has the present means of destroying its effectiveness. It can never be sufficiently insisted on that ‘blockade’ has, in addition to its realities, a technical and highly artificial side. Under the conditions of warfare existing at the time the rules were evolved, the visible sign of its effectiveness was the presence of the blockading ships in the offing; that was the fact from which the danger to merchant ships trying to run in to the blockaded coast became evident. But if, whether by submarines, mines, or aircraft, this danger ceases to be evident, if it can be actually eliminated, if by the offensive protection of destroyers or cruisers there is an evident danger to the blockading squadron, it would seem to follow that both the real and the artificial effectiveness of that squadron would be destroyed. A blockade liable to be seriously questioned, the blockading ships to be annihilated, by an opposing squadron, seems to involve a contradiction in terms.[37] But all this is top-hamper of curious argument, and must go by the board when modern fleets take up their war-stations. The enforcement of a ‘long-distance blockade’ is recognised by the American Protest as being one of their modern duties. But for what purpose? For that extreme exhibition of force which the command of the sea enables one of the belligerents to display in order to strangle the life out of the enemy. That is the principle of blockade--the exercise of sea-power to stop _all_ supplies from going to the enemy, because he has that power; and the Protest admits that this power may now be exercised in a wider area than in days gone by: exercised against the enemy, and therefore exercised against the neutral merchant, whose chances of getting even those things to the enemy which had, before its exercise, been allowed to pass as non-contraband are correspondingly diminished. Let it be noted at once in italics that this admission comes from a Government which is the most powerful protester against infringements of what it holds to be the rights of neutral merchants.

The learned student detects here what appears to be an obvious flaw in the argument. He has been taught that ‘a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy,’ and that ‘the blockading forces must not bar access to neutral ports or coasts.’ The first and eighteenth articles of the Declaration of London have thus summarised the practice. The Government of the United States has not forgotten those elementary maxims; but it will not let them interfere with the development of its theory of the ‘long-distance blockade.’ The principle on which they are based can well be preserved: ‘If the necessities of the case should seem to render it imperative that the cordon of blockading vessels be extended across the approaches to any neighbouring neutral port or country, it would seem clear that it would still be practicable to comply with the well-recognised and reasonable prohibition of international law against the blockading of neutral ports by according free admission and exit to all lawful traffic with neutral ports through the blockading cordon.’

Very frankly, I have my doubts as to the soundness of the American contention. When this time of warfare is overpast and only its echoes remain, when another Conference shall assemble at the Hague to endeavour to read its lessons more surely than its predecessors had learnt those of previous wars, I doubt whether this new doctrine of blockade will find much favour; for if it is accepted as an ‘effective blockade’ the artificial side of the law must also be accepted, and a temporary withdrawal on account of stress of weather must be declared not to raise it.[38] But of this I have no doubt, that the principle on which blockade rests will always be recognised, must always be recognised because it is a fact--that a belligerent will, and therefore, as we are used to say, ‘may,’ resort to the final strangling process whenever he has the power, because he has the power; of this no arbitrary rules can deprive him. I believe that when things come to be weighed in the balance, when Time’s just sentence is pronounced, it will be that the new Order in Council indicates the proper method by which a belligerent may, in view of the advance in the methods of naval warfare, now exercise that strenuous and strangling pressure upon the enemy which in old days he was entitled to do by means of a technical blockade, and that in the way it deals with the neutral merchant it has found the correct solution of that part of the problem.

A great point is also made by the United States Government that the Order in Council is invalid because, if it is to be considered as a blockade, it discriminates against the United States and is not enforced against those countries which, owing to their contiguity to Germany, are inside the cruiser cordon. The principle on which this complaint is based is thus given in Article 5 of the Declaration of London:--‘A blockade must be applied impartially to the ships of all nations.’ This principle is an integral part of the old system of blockade, under which access to neutral ports or coasts may not be barred by the blockading forces (Article 18 of the Declaration). But it is manifest that directly the principle of the ‘long-distance blockade’ is admitted the access to neutral ports must be interfered with; and the Protest expressly recognises the necessity of admitting this principle. Moreover, it would seem that Article 5 of the Declaration applies to an intentional discrimination between the ships of different countries by the blockading belligerent. It is clear that the United States Government does not interpret the article to be, from reasons of geography, an impediment to the new form of blockade which it has expressly approved.

_The Relation between Contraband of War and Blockade_

Let me now try to make things a little clearer. We are so accustomed to the grooves in which our thoughts have been trained to run that we are apt to overlook the intimate connexion which exists between the law of contraband of war and the law of blockade. They are treated as isolated doctrines, as independent branches of the law. The American Protest declares them to be separate ‘concessions’ by neutrals to belligerents. Discussed, as they are, in terms which have no common denomination of language, comparison between them has become, if not impossible, certainly unusual.[39] Let us then reduce them to a common denominator. If we talk of both in terms of belligerent action we find in the law of contraband the right of search as a preliminary to seizure, in the law of blockade the right of seizure without search. In terms of the cargo seized, we find the first limited to contraband of war, the second unlimited. But this is not very satisfactory; it does not explain why, if the neutral merchant has any _rights_ in regard to non-contraband, the belligerent may destroy them by declaring a blockade. It appears to lead to some such general principle as this: when neutral vessels come within a certain distance from the enemy’s coasts (the offing) a belligerent may seize anything and everything, but until they come within that distance he can only seize contraband of war: which is not an accurate statement of the law. ‘Belligerent right’ is clearly the common factor; a belligerent has the right to declare what shall be contraband of war; he has the right to declare a blockade. The variant is the position and number of ships he makes use of, the exhibition of sea-power by which both rights are enforced. So we get to this result: that when there is a cordon of cruisers the belligerent may seize anything, but when there are only isolated ships he may only seize contraband of war.

This test ceases to be rudimentary when we introduce another factor common to the two subjects--effectiveness. That the belligerent’s naval dispositions must be capable of doing what he proposes to do--in other words, must be effective to that end--is no less a feature of the law of contraband than it is of blockade. Carrying contraband of war and blockade-running are not offences; the evil consequences, which authors insist on calling ‘penalty,’ result from capture. Therefore in both cases what the belligerent _may_ do is only qualified by what he _can_ do. That sub-conscious recognition of the possibility that a belligerent may put far greater impediments in the way of neutral communications with his enemy than is implied in the law of contraband, becomes now the conscious principle which I gave in outline in the first article: that ‘contraband of war’ and ‘blockade’ are identical in principle; that they are merely convenient names given to varying exhibitions of sea-power against the enemy, and the consequences, to enemy and neutral merchant alike, do in fact depend on and vary with the force exhibited--that is, with the number and position of the ships employed upon the service, which, if effectively performed, results in both cases in seizure and condemnation.

Blockade in principle is, therefore, nothing more than an indefinite extension of the list of contraband of war, subject only to the requirement that a sufficient number of ships should be placed in such a position as to make this extended threat of seizure effective. This then is practically what the Order in Council does; and even if it insisted on condemnation in all cases it would be justified, for it satisfies the test which this analysis shows to be the true test, and the only test, that the ships employed upon the service, both as regards number and position, shall be effective for its due performance.

Now, seeing that the Order pays so great regard to the pocket of the neutral merchant that it does not condemn _his_ non-contraband cargoes, it is very difficult to discover any justification for protest. Shorn of superfluity of words, the complaint is that we have not declared a blockade; and it resolves itself into this: that we ought to seize and condemn neutral cargoes and not rest satisfied with what may be termed an interim seizure, which may not become absolute. The answer is that the existence and extent of a right does not depend on the nature of the procedure by which it is enforced. It is true that international law has invented a fiction to assist the belligerent who decides to declare a blockade; it preserves, _as against the neutral merchant_, the ‘evident danger of seizure’ even when owing to stress of weather it has ceased not merely to be evident, but to exist altogether. What can this fiction have to do with the nature of the right to which it is a mere adjunct? The right to stop _all_ supplies going to the enemy. It is preposterous to say that a belligerent cannot exercise this right unless he avails himself of the adventitious assistance which the law offers him; that although he _can_ do without it yet he _may_ not.

* * * * *

What is true of the deep sea must also be true of the high air. When the lorries and cargo-carriers of the air have come into being, and the war in the air becomes even more of a grim reality than it is to-day, neutrals carrying supplies to the enemy will, I imagine, receive short shrift, contraband or no contraband, siege or no siege, blockade or no blockade.

_The Sovereignty over Neutral Ships_

But the United States Government rests its protest on an alternative ground. The Order in Council, it declares,

would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace.

* * * * *

This Government takes it for granted that there can be no question what those rights are. A nation’s sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited. And that sovereignty suffers no diminution in times of war except in so far as the practice and consent of civilised nations have limited it by the recognition of certain now clearly determined rights which it is conceded may be exercised by nations which are at war.

A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy’s Government or armed forces. It has been conceded the right to establish and maintain a blockade of an enemy’s ports and coasts, and to capture and condemn any vessel taken in trying to break the blockade. It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral service, and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of equality of sovereignty on the high seas as between belligerents and nations not engaged in war.

If the rights of the neutral merchant are no greater than I have stated them in the first article, and he acts at his own peril and is entirely independent of his own Government, and if the rights of the belligerents are as large as I have there stated them, then it follows that there can be no question of ‘concession’ by the neutral merchant’s Government, in regard to either contraband or blockade, but only an assertion of belligerent right,[40] and all questions as to the sovereignty of that Government over its merchants’ ships disappear. When the neutral merchant is carrying contraband, or when he is blockade-running, he deliberately runs his risk, and therefore cannot claim the protection of his flag.

I think I am not overstating the case when I say that the doctrine on which the United States Government rests its case against us is the exact opposite of this. The prominent position which it holds in the Protest shows that it is regarded as the key-stone of the argument, and that if that key-stone is withdrawn the whole argument must fall to pieces. At the risk of repetition I shall quote again a passage from ‘Historicus,’ referred to in the post-script to the first article, in which he examines the terms of the British proclamations of neutrality. Using his own language, ‘the vital importance of this matter to the great issues’ which have arisen between the United States and Great Britain, ‘must be my excuse.... The interests of peace demand that there should be no doubt on this question.’ In these proclamations, he says, the nature of the consequence, commonly called a penalty, of trading in contraband of war ‘is pointed out with equal clearness and correctness--_viz._ the withdrawal of the Queen’s protection from the contraband on its road to the enemy, and an abandonment of the subject to the operation of belligerent rights.’[41] And again, ‘when the neutral Sovereign has withdrawn from his subjects engaged in such a trade the protection of his flag, he has discharged the whole duty of neutrality.’[42] To withdraw protection from the merchant when he sets out on his risky adventure, to abandon him during his adventuring to the exercise of sea-power by a belligerent which it is admitted he must exercise because he is at war, is inconsistent with any notion of _concession_. A neutral vessel carrying contraband is in no better case than if she wore no flag. The _fact of the contraband being on board_ withdraws her from her national protection.

Further, the laws of the United States (which may be taken as typical of neutral countries), ‘do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war ... on board their private ships for transportation.’[43] It is impossible, therefore, to say that the neutral Government--except only when an embargo has been declared--exercises jurisdiction over such private ships, for the national law creates no offence which could give jurisdiction. Therefore it is clear that the neutral vessel by carrying contraband or running blockade puts herself deliberately, and with the acquiescence of her own Government, at the mercy of the other belligerent, and submits to the exercise of belligerent rights.[44]

The right of search might be looked on as a concession, or an infringement of jurisdiction, in the case of ships not carrying contraband. Yet even this does not bear analysis; for, as ‘Historicus’ points out, ‘when a trade in contraband is notoriously and extensively carried on, it exposes the innocent as well as the guilty to suspicion and search, and this is precisely why the Queen in her proclamation of neutrality exhorts her subjects to abstain from such a trade.’[45] The proclamation in fact admits that this search of _all_ vessels on suspicion is an integral and inevitable part of the right of search. It is not a concession, but only the logical extension of the belligerent right to capture contraband on neutral vessels, and to take all steps necessary to attain that end. It is a part of the belligerent right. This question does not arise in connexion with blockade, for there there is no search, and all things become contraband of war.

_The Doctrine of ‘Continuous Voyages’ and the Order in Council_

But although I have been obliged to devote great space to these preliminary subjects, the point of the Protest is still to come. The condition attached by the United States to its theory of the ‘long-distance blockade’ is that free admission and exit must be accorded ‘to all lawful traffic with neutral ports through the blockading cordon.’ ‘Lawful traffic,’ it is explained, ‘would of course include all outward-bound traffic from the neutral country, and all inward-bound traffic to the neutral country except contraband in transit to the enemy.’ This must be read with a sentence which occurs earlier in the Protest:--

It is confidently assumed that His Majesty’s Government will not deny at once [_i.e._ presumably, ‘will at once admit’] that it is a rule sanctioned by general practice that, even though a blockade should exist and the doctrine of contraband as to blockaded territory be rigidly enforced, _innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory_ without being subject to the penalties of contraband traffic or breach of blockade, much less to detention, requisition, or confiscation.

At last we have the real issue. Assume everything in our favour: that our blockading cruisers are rightly standing far out to sea; that we should be justified in condemning the cargoes seized instead of returning them to the persons lawfully entitled thereto: the United States denies that its own particular doctrine of ‘continuous voyages’ can apply to a ‘long-distance blockade.’ And here undoubtedly the books seem to be in its favour, for the rule they give, embodied in Article 19 of the Declaration of London, is shortly this: the doctrine of ‘continuous voyages’ does not apply to a blockade. This is the logical consequence of the principle to which I have already referred; that the blockading forces must not bar access to neutral ports, because the doctrine of ‘continuous voyages’ expressly deals with cargoes on vessels bound for neutral ports. But it would seem to follow that with the disappearance of the offing from the definition of ‘blockade,’ and the consequent legitimate interference with access to neutral ports, the application of the doctrine of ‘continuous voyages’ must follow as a matter of course. The fact is that the United States Government has not fully counted the cost of its own admission. As I have already shown, once the theory of the ‘long-distance blockade’ is admitted the principle of non-discrimination, a legal nicety appurtenant to the old blockade, goes by the board, because geography compels an involuntary discrimination against neutral countries which are outside the cordon; so it is clear that this other principle of non-application of the doctrine of ‘continuous voyages’ to blockade must also go by the board, because it is the result of principles specially applicable to the old blockade.

The doctrine of ‘continuous voyages’ holds no precious mystery; it never meant more than this: that what the neutral trader cannot do directly without running the risk of seizure and condemnation he cannot do indirectly without running that risk. And whereas, as has been shown, the right to blockade the enemy is in principle no more than the right indefinitely to extend the list of contraband of war against the neutral trader, this must apply equally whether cargoes are going directly or indirectly to the enemy.[46]

The discussion of narrow rules hinders the clear vision of the things which are; and of these the all-important one is that, call it by what name you please, a belligerent _will_, whenever he has the power, take the necessary steps to cut off _all_ supplies from the enemy; and he will cut them off whether they are going by direct route or indirectly through a neutral port. The old conditions under which that power was exercised have, it is agreed, passed away; the power, which we call the right, remains. The Government of the United States contends, on behalf of its merchants, that they have the right to evade and therefore to nullify that power by supplying the enemy, indirectly and without risk, with those cargoes which they cannot safely supply him with directly. Surely the proposition is impossible on the face of it. To call such cargoes ‘innocent’ is to beg the question. The introduction of the atmosphere and terms of the criminal law has done more to fog the public comprehension of this branch of international law than any inherent complexity of the problems with which it deals. Yet here it will serve to bring home the inaccuracy of the American contention to the public mind; for seizure and condemnation become a sort of retributive penalty for the neutral merchant’s attempt to evade what, to continue the language of law, the belligerent has the right to command, by darkening and disguising his real intention. Judged even by this imperfect standard, the American Protest has cut away the ground from its own contention. The doctrine of ‘continuous voyages’ was accepted because of its logical simplicity; and this simplicity shows that it must extend and reinforce every exhibition of sea-power by a belligerent against his enemy; and its logic prevents the neutral merchant from setting up any right, more especially any right which is not only in conflict with the belligerent right, but is based on deceit and needs a cloak to hide its real meaning. The right he claims is to send to the enemy those supplies which the belligerent has declared his intention and taken effective steps to deprive him of. If the neutral merchant had such a right it would enable him to diminish the force of the belligerent blow, to heal the stroke of the wound.

_Reprisals_

There has been much talk of retaliation. The Order in Council has adopted the formula of the first of the Orders in Council of 1807,[47] that the action of the enemy has given to His Majesty the ‘unquestionable right of retaliation,’ and it has been assumed, too readily as I venture to think, that this is an admission that our action to-day falls outside the principles sanctioned by international law. The American newspapers have found apt expression of their criticism in the ancient adage ‘Two wrongs do not make a right.’ And in the Protest of the Government this sentence occurs:

If the course pursued by the present enemies of Great Britain should prove to be in fact tainted by illegality and disregard of the principles of war sanctioned by enlightened nations, it cannot be supposed, and the Government does not for a moment suppose, that His Majesty’s Government would wish the same taint to attach to their own actions, or would cite such illegal acts as in any sense or degree a justification for similar practices on their part in so far as they affect neutral rights.

A comparison of the measures taken by the Order in Council with those ordered by the German Admiralty can hardly have been seriously intended; yet to many this sentence seemed to be straining diplomatic proprieties to their utmost limit. But any irritation it may have caused has been blotted out by the stern words of disapproval used by the President in his recent Notes to Germany.

But the reference to retaliation cannot, as it seems to me, be legitimately construed into an admission of the illegality of the measures decreed by the Order in Council. The utmost that can be said of it is that it admits they are exceptional. The Order of 1807 declared that ‘no vessel shall be permitted to trade from one port to another, both French,’ and it was enforced by seizure and confiscation of neutral vessels which disregarded it. That and the other Orders which countered Napoleon’s paper blockade of the English coasts have been severely criticised; but it is impossible to apply the same criticism to an Order which omits the confiscation, and on the contrary, expressly provides for the return of both ship and cargo to the neutral merchant. That the measures are exceptional may be freely admitted, and to that extent they may be called reprisals; but exceptional measures, even of reprisal, are not necessarily illegal measures.

_The American Caveat_

The strangest part of the correspondence remains to be noted. The United States Government, in July, lodged a _caveat_, intimating that it ‘will not recognise the validity of Prize Court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens under international law.’ The Government has thus indicated the retaliatory measures it proposes to take against Great Britain; yet it has failed to see that the veiled irony of the paragraph just quoted from the Protest applies in its entirety to this reprisal. In so far as it relates to executive action, it proposes to accomplish the impossible. Prize Court judgments are _in rem_; they pass property, and if possession has followed not even the United States Government can undo it, for there would not be even a tenth point on which it could seize; and if possession has not followed, Government action would be brought up short by the law. Further, in so far as it relates to judicial action, the intention appears to be to give an instruction to the American Courts how in the circumstances they are to deal with the decisions of the English Prize Courts. Thus the constitutional principle of the independence of the Judiciary from the Executive is put in jeopardy, and the Government would again be brought up short by the law. And in so far as it relates to the law itself, the proposed action professes to decide favourably to the present contention of the United States a difficult and complicated question of law--whether judgments based on a municipal law which, it is alleged, is a violation of international law are not entitled to recognition by foreign Courts, more especially if they are judgments _in rem_. Such a decision does not fall within the province of the Executive, but only of the Courts. So, as it was said aforetime in the British argument in the Behring Sea Arbitration, to all and every part of the different protests which have been made against our action by the United States Government, there is, with profound respect, ‘but one answer--the Law.’

In an Editorial Note in the May number of the _North American Review_, dealing with the relations between Great Britain and the United States after the detention of the _Wilhelmina_, this sentence occurs:

If we should once admit the right of the Allies to forbid our sending foodstuffs to Germany, how could we deny the justice of Germany’s insistence that we should apply the same principle to England? And what would happen to the English people then? Surely, too, our British friends must realise that only the strictest adherence to international law makes it possible for us to furnish to the Allies the vast quantities of war munitions without which they could not hope to win.

The great friendliness of its tone cannot but be grateful to us; yet in this short sentence all the fallacies and misconceptions of the real nature of the neutral merchant’s position are concentrated. I have endeavoured to show that we have claimed to exercise a right which a fuller examination of admitted principles shows to be entirely warranted, that the only thing which stands in the way of the prompt admission of its legality is a popular conception of belligerent rights which unduly confines them within limits which have proved themselves to be impossible in modern conditions of war. Law once was the handmaid of commerce: she has long since become its mistress. But what, for want of a better name we call international law is still in a state of servitude. If its doctrines are to be treated as intelligible they must be considered as a continuous development springing from, and as the inevitable consequence of, the first cause, that two nations are at war. Then War becomes the key-note, subdominant, dominant, leading note, every note of the scale of action throughout the world, and the neutral merchant cannot pitch the tune as it may best suit his interests.

Is then the justification for the new procedure of the Order in Council an ultimate reference to Might is Right? Have I, following far behind the United States Government in the strenuousness of the law as I have formulated it, found also a justification for the German who relies on Might without troubling to assert the Right? Surely not. I have striven to base the whole law and every part of the law as it affects the neutral merchant on the plain fact that all exercise of might against the enemy, so long as it comes within the laws of humanity and the rules of war, is justifiable, and the omission of it mere folly, and that it is not limited by considerations of time and space; and on this still plainer fact that the exercise of might against the enemy engenders ‘right’ against such neutral merchants as do, of their own free will and with eyes open, bring themselves within the scope of it.

* * * * *

P.S.--I have dealt with the subject on the supposition that all contracts are made after the declaration of war. But much foreign trade is carried on by ‘long-distance’ contracts, and neutral merchants who have entered into continuing contracts before the War would seem to demand special attention, for their eyes were not open, and the risk of seizure by a belligerent has caught them awares. Speaking generally, it is here that the consideration shown to the neutral merchant by Great Britain may find full scope for action. But I admit quite frankly that so much of my argument as is personal to the neutral merchant does not apply to this category. On the other hand, the law of contraband, with its adjunct the doctrine of ‘continuous voyages,’ and the law of blockade, as they have been understood in the past, do not exempt them from the rigours of their operation. Yet the fact remains that the new development of the law does impose upon them greater risks than they ran heretofore, and a protest specially devoted to their hard case would, I imagine, if it were limited to contracts relating to non-contraband and to contracts not made with the enemy Government, receive careful consideration.

III

_COTTON AS CONTRABAND OF WAR_

[_September 1915_]

Cotton proclaimed Contraband of War--Public Demand for the Proclamation--The answer to the Critics of the Government--‘Continuous voyages’ and the Order in Council--Possible combination of Contraband and Blockade--American reply to Austrian Note.

Raw cotton has been proclaimed contraband of war.[48] I may therefore fill in a blank space in what I have written in the previous articles on the law of contraband of war and the law of blockade. It was obviously impossible while the matter was, as it were, _sub judice_, to point the moral of the doctrine advanced in those articles--which I believe to be most sound doctrine--that ‘the right to blockade the enemy is in principle no more than the right indefinitely to extend the list of contraband of war against the neutral trader,’[49] by a reference to the ‘cotton question.’ But I am free to do so now.

_Public Demand for Cotton to be made Contraband of War_

I must confess that the movement, of which the Proclamation is the outcome, in its later stages has filled me with amazement; more especially the way in which, the object attained, the announcement of its issue has been received. A sigh of relief has gone up: ‘At last!’ it is said, ‘the Government has given way, and the step has been taken which should have been taken at the beginning of the War.’ There is a gratified assumption that those who have fought the good fight have triumphed over a stubborn lot of procrastinating and incompetent Ministers. Some even suggested, when the decision was announced, that a wicked Government might, after all, only make cotton conditional contraband, for was it not a Government prone to subterfuge?

The leaders in the fight, the distinguished chemists, are so eminent that I refrain from applying to them the term ‘agitators’; they are so eminent that I am sure they will bear with me patiently while I explain why, even though they appear to have accomplished it, they were trying to shut a door that was already closed, for ‘sweet reasonableness’ is an attribute of all eminence. It is not necessary now to inquire what were the reasons which induced the Government to refrain from putting cotton on the list of absolute contraband during the first six months of the War; it was a policy deliberately adopted by responsible Ministers; whether it was the right or the wrong policy is not the question which the leaders of the movement have put in issue. The errors of the past were at length to be retrieved.