*** START OF THE PROJECT GUTENBERG EBOOK 69710 ***

TRANSCRIBER’S NOTE

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

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

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

  All other punctuation and spelling was retained.




  THE
  NEUTRAL MERCHANT

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

  BY

  SIR FRANCIS PIGGOTT
  LATE CHIEF JUSTICE OF HONG KONG

  _Reprinted, by permission, from_
  THE NINETEENTH CENTURY AND AFTER

  UNIVERSITY OF LONDON PRESS, LTD.

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

  1915




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       *       *       *       *       *

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

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

       *       *       *       *       *

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

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

                                                              _F. T. P._

 _November, 1915._




  CONTENTS                                        PAGE

  INTRODUCTION                                      v

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

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

  III. COTTON AS CONTRABAND OF WAR                 95




THE NEUTRAL MERCHANT




I

_THE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS_

                                                          [_April 1915_]

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


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

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

       *       *       *       *       *

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


_The Use of Neutral Flags by Merchantmen_

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

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

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

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

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

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

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

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


_The First American Note to Great Britain_

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


_The First American Note to Germany_

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

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

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

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

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

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

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


_THE EVOLUTION OF THE DOCTRINES OF CONTRABAND OF WAR AND BLOCKADE_

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


_The Meaning of Neutrality_

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

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

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


_Contraband of War_

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

       *       *       *       *       *

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

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

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

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

       *       *       *       *       *

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

       *       *       *       *       *

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

       *       *       *       *       *

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

       *       *       *       *       *

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

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

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


_The Right and the Duty of Search_

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

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

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


_The Doctrine of Continuous Voyages_

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

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

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


_Embargo_

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

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

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


_Blockade_

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

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

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

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

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

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

       *       *       *       *       *

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

       *       *       *       *       *

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

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

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

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

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

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




II

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

                                                         [_August 1915_]

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


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

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

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


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

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

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

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

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

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

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

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

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

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

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


_General View of the Main Provision of the Order in Council_

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

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

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


_Application of the Law of Vendor and Purchaser_

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

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

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

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

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

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

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


_The Declaration of Paris--Free Ships make Free Goods_

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

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

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

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

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


_The Effect of the Order in Council_

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

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

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

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

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


_The Relation between Contraband of War and Blockade_

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

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

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

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

       *       *       *       *       *

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


_The Sovereignty over Neutral Ships_

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

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

       *       *       *       *       *

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

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

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

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

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

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


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

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

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

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

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

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


_Reprisals_

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

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

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

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


_The American Caveat_

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

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

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

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

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

       *       *       *       *       *

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




III

_COTTON AS CONTRABAND OF WAR_

                                                      [_September 1915_]

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


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


_Public Demand for Cotton to be made Contraband of War_

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

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

By the Order in Council of the 11th of March, a new policy was adopted
which, in the opinion of the present Government, should have been
effective to achieve what all desire--the prevention, by all possible
legitimate means of warfare, of cotton, as well as everything else,
from reaching Germany. This was intimated in Lord Moulton’s answer
of the 19th March to the distinguished chemists who had moved in the
matter;[50] and it was more fully explained by Lord Robert Cecil in
the House of Commons in August. It is that policy which has been so
vehemently attacked as insufficient, as part of our ‘sorry record
in the cotton question.’ It was contended that in spite of the
far-reaching effect of the Order in Council it was necessary further
to reinforce the powers taken under it by putting cotton on the list
of contraband of war; and the Government have now done what they were
asked to do.

The criticism of the Government took two forms, one of which was
serious. The other may be dealt with summarily. It was to the effect
that the Order in Council ought to be revoked because, so it was said,
many lawyers considered it to be contrary to international law, and
that it should be replaced by some provision dealing specially with
cotton. I have endeavoured in the preceding articles to show that this
opinion of my learned brothers, if indeed they hold it, is erroneous.
But, putting this on one side, I believe the sound and only rule of
speech and of the pen for Englishmen while the War lasts to be _omnia
præsumuntur rite esse acta_. Criticism, based on learning or otherwise,
of action taken by the Government against the enemy is out of place
in time of war. The fact that such action affects neutral merchants
injuriously does not justify criticism, for whatever weight it may
have, by so much it adds to the difficulties, already immense, of
temperate discussion with neutral Governments; by so much it heartens
the enemy who seeks _per nefas_ to render the discussion intemperate.
For the present, therefore, at least a judicious silence is the better
and the wiser part.

But criticism of inaction of the Government in regard to the enemy
stands on a different footing, and, so only that it conform to one
condition, it is permissible. That condition is the not unimportant
one--full knowledge of all the facts. The eminent chemists and others
who have been so vehemently urging the Government to make cotton
contraband of war were critics of alleged inaction, and so far their
position was unimpeachable; but, I venture with respect to ask them,
did they know _all_ the facts? They certainly knew one fact--that,
at the time they approached the Government, Germany was getting too
much cotton; and realising the intimate connexion between this and
the ever-growing lists of casualties they were deeply stirred, as all
of us who are condemned to sit at home at ease were deeply stirred
when we came to understand. But emotion is apt to cloud clear mental
vision, and we have been asked by some persons to believe that those
others, men like ourselves, who form the Government of the nation,
having eyes yet see not the plain things that are going on before them.
And yet those are the only men among us who know _all_ the facts. The
critical point, however, is not whether Germany has been getting too
much cotton, but whether she has been getting it because the Government
had not taken sufficiently strenuous measures to prevent it. This being
assumed in the affirmative, these eminent critics further assumed that
declaring cotton to be contraband would be more effective in preventing
it from getting to Germany than the procedure authorised by the Order
in Council.


_The Answer to the Critics of the Government_

None of us know what is actually happening on the high seas in the
area controlled by our cruiser squadrons, though the statistics just
published by the Foreign Office somewhat lift the veil. We cannot,
therefore, do more than consider the abstract question of principle,
whether it was necessary to supplement the Order in Council by a
proclamation of contraband so as more effectually to prevent cotton
getting through to Germany; and it seems to me essential to a right
understanding of the discussion that we should consider it.

Now there is one fact which I should have thought would at once have
disposed of the whole contention of the critics--the Protest of the
United States Government. That Protest declares that in the Order in
Council we have gone to lengths in interfering with American trade
(which includes trade in cotton) hitherto unknown to international
law, more especially in stopping that trade, asserted to be ‘innocent’
but manifestly the opposite, on its way to neutral countries. In all
friendliness that Government exhorts us, among other things, to revert
to the time-honoured practice of relying on declarations of contraband.
It appears, therefore, that the United States Government charges us
with doing precisely what our own critics condemn Ministers for not
doing, except by ‘a half-hearted expedient’--stopping ‘innocent’
cargoes of cotton. That Government insists that the correct way of
preventing cotton reaching the enemy is to shut ourselves up in those
old watertight compartments of international law labelled ‘contraband’
and ‘blockade.’ They want to entangle us in that incomprehensible
ravel of illogic into which those doctrines of international law have
got themselves. Paraphrased, what the American Government says is
this--declare a blockade, even though it be a ‘long-distance blockade,’
which they are willing to concede to be our right, and then we may stop
all cotton going direct to German ports, though not, as the text-books
point out, cotton going indirectly to Germany through neutral ports;
or, declare cotton to be contraband, and then we may stop it even
though it passes through neutral ports. But as we had done neither of
these things _in express terms_, Germany must be allowed to get her
‘innocent’ shipments of cotton by way of neutral and contiguous ports.
Verily, the American fowler spreads the net in the sight of the British
bird.

Here is the substance of the whole discussion. The Judges of the United
States, with clear-cut thought, declared, half a century ago, that
the doctrine of ‘continuous voyages’ was the inevitable complement
to the belligerent right of stopping munitions of war and their
component substances on the high seas on the way to the enemy. In
other words, that the doctrine completed the law of contraband of war.
The British Government, has, by the Order in Council, declared that
doctrine equally to be the inevitable complement to the more extended
belligerent right of stopping _all_ supplies from reaching the enemy.
In other words, that the doctrine completes the law of what we have
called the ‘new blockade.’

This, then, is the clear issue raised by the Order in Council for the
judgment of any tribunal, national or international, to which it may
hereafter be submitted, and of the world to which it is now submitted.
And the position is, in my humble judgment, and in spite of the critics
on our own side, unassailable. Nations, no more than individuals, are
not to be bound by mere phraseology, especially in such a subject as
this, without knowing what the terms used mean. ‘Blockade’ is a mere
term, explaining what belligerent nations do, but not why they do it
nor why neutral nations silently acquiesce.[51] It tells nothing of the
right to do it. On the contrary it seems, for a hundred years, to have
successfully blinded men by its technical conditions to the fact that
the so-called right to declare a blockade is no more than a declaration
of an intention by a belligerent to stop _all_ supplies from going
to the enemy, and stopping them. Is it not abundantly clear that
that intention cannot be nullified by the cleverness of the neutral
merchant in ‘darkening and disguising’ the fact that they are going to
the enemy? That, then, we have declared by the Order in Council to be
our intention, and we have acted on it. It may be that, in regard to
cotton, we have exercised it imperfectly; some neutral merchants may
have successfully evaded the vigilance of our ships. Human agencies are
never quite perfect; of all, even though they be official, Rostand’s
philosophy is, alas! too true:

  Sache donc cette triste et rassurante chose,
  Que nul, Coq du matin ou Rossignol du soir,
  N’a tout-à-fait le chant qu’il rêverait d’avoir.

But because the ingenuity of the neutral merchant and his confederates
has, as it is said, so far greatly baffled the vigilance of the
mightiest fleet that ever stood guard upon the sea, the critics of the
Government protest that we should fall back on the lesser remedy of
declaring cotton contraband, and revoke, abandon, or ignore the more
strenuous remedy provided by the Order in Council. It is difficult to
appreciate the position these critics take up; it can only be explained
by a lack of understanding of the real meaning of the Order. This
these articles have endeavoured to do.

But, curiously enough, there is just one point where the combined
operation of the laws of contraband and of blockade _may_ increase
our power of seizing cotton. It follows from what I have said in the
second article with reference to the importance of reducing both laws
to a common denomination of language,[52] that the reinforcement of
even our ‘long-distance blockade’ by the addition of cotton to the
list of absolute contraband will enable us to seize cargoes of cotton
by isolated cruisers before the neutral ships which carry them reach
the area in which the cordon of cruisers is operating. If this is a
valuable power, as to which I am sceptical, it is right that it should
be claimed and exercised; and it is one of the powers which result from
the new Proclamation. I feel sure that the critics of the Government
had not this addition to our powers solely in their minds; they
certainly did not so formulate their criticism.

But the action which the critics wanted the Government to take has
been taken; and I think the reason may not be far to seek. The
American merchant, like his Government, believes that there is much
virtue in technical terms. He says ‘put cotton on the list of absolute
contraband; I know what that means; then I shall know where I am.’ I
pointed out in the first article that the problem of the neutral trader
is a very complex one, ‘for each belligerent as a buyer must strive
to keep him in a good humour, but as a fighter must do all he can to
thwart him.’[53] The cotton-grower of the Southern States prefers to be
thwarted in this manner, and the British Government has humoured him.
He prefers the risk of confiscation to the possibility of having his
cargo returned to him if he is ‘the lawful owner thereof.’ So all is
well.

The comments which have appeared since the Proclamation was issued
have laid much stress on the deterrent effect it is bound to have on
the cotton shippers, because the Order in Council does not provide for
confiscation of cargoes of non-contraband, whereas now that cotton is
contraband it must be confiscated. Also the complaint has been revived
that the Order in Council was loosely enforced, and it is imagined
that the declaration of contraband will of itself ensure a stricter
supervision of cargoes of cotton at sea. It is difficult to follow
either arguments, even on the supposition that this latter criticism
is justified. For the machine by which both the Order in Council and
the contraband Proclamation must be carried out is the same--the
Fleet. The effectiveness of this machine, the efficiency of the Fleet,
is obviously the dominating factor of the situation, whether it be
governed by the Order or by the Proclamation. The deterrent nature of
the fact that confiscation is now inevitable may possibly reduce the
number of cargoes of cotton with which the Fleet may have to deal, but
the other fact remains, that the Fleet will deal with them whatever
may be their number.

There has also been, even in very responsible quarters, some rather
confused talk to the effect that the result of the contraband
Proclamation is to ‘improve our international legal position.’ If
this means anything it implies acquiescence in the American argument
that the Order in Council is not warranted by international law. Such
an argument, as I have already said, is more than inopportune at the
present time; those who use it would, I presume, be pleased to see
the Order in Council revoked altogether. I trust, on the other hand,
that nothing that I have said will be construed to suggest that the
Government in yielding to the clamour of the critics has issued a
futile Proclamation. Yet it is impossible to imagine that Ministers
have lost faith in the virtue and efficacy of the Order in Council.
The latest statement in Parliament, by Lord Robert Cecil, which I have
already referred to, shows that they have not. The Proclamation does,
as I have shown, strengthen the position in some slight measure; but
there is a well-known form of legislation often resorted to ‘for the
quieting of doubts,’ which does not give away the situation. Such I
believe this Proclamation to be.

But for the sake of the science of international law, in the
preservation of which both the British and the American Governments
are profoundly interested: for the sake of that cardinal principle
that as weapons of war increase in their power of destruction so must
the belligerent might and right also increase, and new means must be
found for keeping the new manifestations of sea-power within the old
principles: for the sake of our duty of loyal belief that the Order in
Council has devised those means in most legitimate fashion, let not the
critics of the Government, learned or unlearned though they be, lay the
flattering unction to their souls that they have won a famous victory.

       *       *       *       *       *

P.S.--I take this opportunity of referring to the American reply to
the Austrian Note which complained that the sale of munitions of war
by United States merchants to the Allies was a breach of neutrality
on the part of the United States Government. The Note was in the
forcible-feeble style. It gave me the impression of having been written
to order of the German Government by men who had not much belief in
the soundness of their argument. It very clearly showed that necessity
‘knows no law,’ for erroneous doctrine was assuredly never so weakly
stated. But it gave President Wilson an occasion of finally disposing
of the false, and of asserting the true, principles of neutrality.
It disposes also of the notion prevalent in some quarters, to which
I referred in the second article, that the President’s ‘sense of
fairness’[54] had something to do with our continuing to receive
munitions of war from the United States. The reply has not been much
noticed, but it deserves transcription as a most masterly statement of
law and policy: ‘The principles of international law, the practice of
nations, the national safety of the United States and other nations
without great military and naval establishments, the prevention of
increased armies and navies, the adoption of peaceful methods for the
adjustment of international differences, and, finally, neutrality
itself, are opposed to the prohibition by a neutral nation of the
exportation of arms and ammunition or other munitions of war to
belligerent Powers during the progress of the War.’


I draw special attention to the sentence ‘the national safety of the
United States and other nations without great military and naval
establishments’; these are the nations, small in their powers of
defence, who, as I have pointed out, must go to the wall if the wild
dream of neutralizing the sea should ever be allowed to materialise.[55]




FOOTNOTES:


[1] The _caveat_ of the United States Government, published in _The
Times_, 24th July, 1915. This action is considered in the second
article, at p. 90.

[2] The book recently published by the French Foreign Office setting
forth the crimes of the German Government is, with great and customary
accuracy, entitled ‘Les violations des Lois de la Guerre par
l’Allemagne.’

[3] As by the sinking of a merchantman on which its citizens are
travelling, without warning and without affording them proper means of
escape, or by the dropping of bombs on an unfortified town in which its
citizens are residing. If such neutral citizens are injured, elementary
legal principles deprive the belligerent, become barbarian, of the plea
that he did not know of their existence.

[4] See the footnote on p. 95.

[5] See p. 85.

[6] ‘The Government will use all its belligerent rights, whatever they
may be, whether under the Order in Council, or under the law apart from
that Order’ (Lord Robert Cecil, House of Commons, 19th Oct. 1915).
‘The Foreign Office is profoundly anxious to enforce to the utmost our
blockade rights.... Taking the broad results, the blockade of Germany
had been a great success, and not a great failure’ (Lord Robert Cecil,
House of Commons, 2nd Nov. 1915).

[7] The ‘Three Rules’ are contained in Article 6 of the Treaty of
Washington, 1871, by which the settlement of the Alabama claims was
arranged. It provided that: ‘In deciding the matters submitted to the
Arbitrators, they shall be governed by the following three rules, which
are agreed upon by the High Contracting Parties as rules to be taken
as applicable to the case, and by such principles of international law
not inconsistent therewith as the Arbitrators shall determine to have
been applicable to the case. A neutral Government is bound--first, to
use due diligence to prevent the fitting out, arming, or equipping,
within its jurisdiction, of any vessel which it has reasonable ground
to believe is intended to cruise or to carry on war against a Power
with which it is at peace; and also to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having been specially adapted,
in whole or in part, within such jurisdiction, to warlike uses.
Secondly, not to permit or suffer either belligerent to make use
of its ports or waters as the base of naval operations against the
other, or for the purpose of the renewal or augmentation of military
supplies or arms, or the recruitment of men. Thirdly, to exercise due
diligence in its own ports and waters, and, as to all persons within
its jurisdiction, to prevent any violation of the foregoing obligations
and duties. Her Britannic Majesty has commanded Her High Commissioners
and Plenipotentiaries to declare that Her Majesty’s Government
cannot assent to the foregoing rules as a statement of principles of
international law which were in force at the time when the claims
mentioned in Article 1 arose, but that Her Majesty’s Government, in
order to evince its desire of strengthening the friendly relations
between the two countries and of making satisfactory provision for the
future, agrees that in deciding the questions between the two countries
arising out of those claims, the Arbitrators should assume that Her
Majesty’s Government had undertaken to act upon the principles set
forth in these rules. And the High Contracting Parties agree to observe
these rules as between themselves in future, and to bring them to the
knowledge of other maritime Powers, and to invite them to accede to
them.’

[8] This is expressly declared by Article 7 of the Hague Convention
of 1907, No. 13, ‘respecting the Rights and Duties of Neutral Powers
in Maritime War,’ which is as follows:--‘A neutral Power is not bound
to prevent the export or transit, for either belligerent, of arms,
munitions of war, or, in general, of anything which could be of
use to an army or fleet.’ The full meaning of this article is made
specially clear by its juxtaposition with Article 6, which provides
that ‘The supply, in any manner, directly or indirectly, of war-ships,
supplies, or war material of any kind whatever, by a neutral Power to a
belligerent Power, is forbidden.’

[9] _Letters of Historicus_, p. 121:--‘The recent unfortunate evasion
of the _Alabama_ has given rise to much discussion on the general duty
of a neutral Government with respect to the trade of its own subjects
with the belligerents in contraband of war. One might have supposed
that if there were any question which the authority of accredited
writers, the definitions of public documents, and the universal
practice of nations, had clearly and decisively ascertained, it was
this very question on which, unhappily, there seems to prevail a
most general and unfortunate misapprehension. This misapprehension,
grave as it is in the exasperation which it is calculated to produce
between friendly nations, is not altogether inexplicable. We have
the misfortune to live in days when, in the name of liberalism,
philanthropy, and civilisation, we are invited to upset the whole
fabric of international law which the reason of jurists has designed
and the usage of nations has built up, and to rear upon its ruins the
trumpery edifice of a shallow caprice. It is the old story of that
pretentious philosophy which, by a recurrence to first principles,
attempted with so little success to operate the regeneration of
mankind. I would that we had yet among us the multitudinous eloquence
of Burke or the poignant wit of Canning to do condign justice upon this
presumptuous sciolism.’

[10] This was generally accepted as a fact at the time this article was
written. It must, however, now be noted that the Captain of the _Emden_
has denied it.--_F. T. P._

[11] Wallace’s (U.S.) Reports, p. 514.

[12] A sketch of the view of international law presented in this
article appeared in some letters by the present writer to the _Daily
Dispatch_.

[13] The Earl of Crawford, in the debate in the House of Lords on
Naturalisation, 6th January, 1915.

[14] Cited, _Letters of Historicus_, p. 127. The quotation comes from
Galiani, but is cited by Azuni with approval. He wonders how Galiani,
having enunciated so sound a doctrine, could derive from it the unsound
conclusions which he successfully combats.

[15] See the quotation from Azuni, cited _Letters of Historicus_, pp.
126-131:--‘Whatever may be the other demerits of Azuni’s work, his
doctrine on this point is unquestionably sound, and the reasons which
he adduces are unimpeachably accurate--

  ‘“Commerce in all kinds of merchandise, commodities, and
  articles of manufacture, being allowed in time of peace to
  the subjects of a nation, so far as the laws of the State, or
  particular treaties with other Powers create no exception,
  they ought to be permitted to do the same thing during the
  continuance of war, since neither of the belligerent parties
  has a right to impose any new obligations on the neutral,
  which did not exist in time of peace. * * * *

      ‘“In the public treaties down to the present time, do we
  in fact see any prohibition than that of transportation of
  contraband goods to an enemy? No nation, not even the most
  powerful, or those who could, with impunity, exercise the
  right of the strongest, have ventured, in their declarations
  of war, dictated by the most violent animosity, to prohibit
  neutrals from the impartial sale of any goods in their own
  territory. They have confined themselves to the threat of
  confiscating contraband articles which should be found
  clearly destined to the enemy.”’

[16] I have not attempted to discuss the questions raised by the
Order in Council of October 29, 1914, which put in force, during the
hostilities, the Declaration of London, subject to exceptions and
modifications.


[17] Cited, _Letters of Historicus_, pp. 133, 170:--‘Mr. Huskisson, in
the debate on the Terceira affair in 1830, cites the opinion of Mr.
Canning to the following effect (_Hansard_, vol. xxiv., N.S., p. 209):--

      ‘“Arms may leave this country as a matter of merchandise,
  and however strong the general inconvenience, the law cannot
  interfere to stop them. It is only when the elements of
  armaments are combined that they come within the provision
  of the law, and if that combination does not take place
  till they have left this country, we have no right to
  interfere with them.” These are the words of Mr. Canning,
  who extended the doctrine to steam-vessels and yachts that
  might afterwards be converted into vessels of war, and they
  appeared quite consistent with the law of nations. At the
  very moment he was speaking, arms and clothing were about to
  be sent out of this country to belligerents. Were they to
  be stopped, or were they to be followed and brought back?
  He believed the answer would be, No; and if it were Yes,
  of what use, he would ask, would be our skill in building
  ships, manufacturing arms, and preparing instruments of war,
  if equally to sell them to all belligerents were a breach of
  neutrality?’

      The speech is cited at greater length on p. 170.

[18] Cited, _Letters of Historicus_, p. 129:--‘It is a general
understanding, grounded on true principles, that the Powers at war may
seize and confiscate all contraband goods, without any complaint on the
part of the neutral merchant, and without any imputation of a breach
of neutrality in the neutral Sovereign himself. It was contended on
the part of the French nation, in 1796, that neutral Governments were
bound to restrain their subjects from selling or exporting articles
contraband of war to the belligerent Powers. But it was successfully
shown, on the part of the United States, that neutrals may lawfully
sell, at home, to a belligerent purchaser, or carry themselves to
the belligerent Powers, contraband articles, subject to the right of
seizure _in transitu_. This right has since been explicitly declared
by the judicial authorities of this country. The right of the neutral
to transport, and of the hostile Power to seize, are conflicting
rights, and neither party can charge the other with a criminal act.’
(_Commentaries_, vol. i., p. 142.)

[19] Cited, _Letters of Historicus_, p. 177.

[20] See p. 17.

[21] Article 4 of the Declaration of London, which stated accurately
the established doctrine.

[22] From the Convention of 1901 between England and Russia, cited
_Letters of Historicus_, p. 92.

[23] From a speech of Lord Grenville, cited _Letters of Historicus_, p.
108.

[24] On p. 2.

[25] _Letters of Historicus_, pp. 165, 168.

[26] _Letters of Historicus_, p. 132:--The following paragraph follows
the quotation cited in the text:--

      ‘The true doctrine is enforced with singular clearness
  and force by President Pierce, in his Message of December,
  1854:--

      “The laws of the United States do not forbid their
  citizens to sell to either of the belligerent Powers articles
  contraband of war, or to take munitions of war or soldiers on
  board their private ships for transportation; and although in
  so doing the individual citizen exposes his property to some
  of the hazards of war, his acts do not involve any breach
  of national neutrality, nor of themselves implicate the
  Government. Thus, during the progress of the present war in
  Europe, our citizens have, without national responsibility,
  therefore, sold gunpowder and arms to all buyers, regardless
  of the destination of those articles. Our merchantmen have
  been, and still continue to be, largely employed by Great
  Britain and France in transporting troops, provisions,
  and munitions of war, to the principal seat of military
  operations, and in bringing home the sick and wounded
  soldiers; but such use of our mercantile marine is not
  interdicted, either by international or by our municipal law,
  and, therefore, does not compromise our neutral relations
  with Russia.”’

[27] See p. 13.

[28] The financial stability of the smaller States holds a very
prominent position in the argument of _The Great Illusion_.

[29] That his enemies were at least ‘gentlemen’: an opinion expressed
in consequence of the courteous treatment he received at Kirkwall on
his journey home under safe-conduct.

[30] The real issue _must_ be understood, or we shall find ourselves
in a blind alley. The case _must_ be put as strongly as I have put
it. The Washington correspondent of _The Times_, writing on July 19,
full of anxious solicitude at the gravity of the situation, assuming
us to misunderstand it, said: ‘It is all very well to trust to the
President’s sense of fairness to prevent the closing of American
sources of supply of munitions of war. We can surely do so with perfect
safety.’ In the prevalence of this view of the case lies the gravest
danger. Once admit that ‘fairness’ has in any shape or form anything
to do with the matter, we open the flood-gates of Teuton eloquence,
and, to use the conventional expression, the President must be a
strong man to resist it. The question must be looked at from a higher
standpoint; and it cannot be put more strongly or tersely than it was
by Mr. Bryan in his letter to Mr. Stone in January: ‘It is the business
of belligerent operations on the high seas, not the duty of a neutral,
to prevent contraband from reaching the enemy.... If Germany and
Austria-Hungary cannot import contraband from this country it is not
because of that fact the duty of the United States to close its markets
to the Allies.’

[31] _The Times_ correspondent from New York, on January 11, thus
recorded an extract from Herr Dernburg’s speech at a Republican club in
America.

      An enlightening and interesting commentary on the
  sincerity of the German diatribes against the United States
  for ‘helping Germany’s enemies’ is furnished by the fact
  that, during the rebellion in China in 1913, the rebels in
  the Southern Provinces obtained large supplies of arms from
  German firms in Shanghai. The German Government took no
  steps to prevent its subjects ‘helping the enemies’ of the
  Republic; on the contrary, it joined, so it was reported,
  in protesting against the Chinese Government exercising in
  self-defence its undoubted right of search and seizure of
  cargoes of arms which it knew were being smuggled into the
  Settlement in order to be handed over to the agents of the
  rebel leaders. Circumstances alter cases.

[32] The paragraph of the Protest which is here criticised is set out
at length on p. 81.

[33] See p. 14.

[34] In order not to confuse the argument, I refer here specifically
only to the case of a neutral vendor and an enemy purchaser. Where the
purchaser is also a neutral trader the legal position does not alter
until the facts make the case one of ‘continuous voyage.’

[35] See p. 37.

[36] See the quotation from the Protest, set out on p. 89.

[37] I put this forward purely as a theoretical consideration, because
I am not sure that Nelson’s historical blockades fulfilled the
condition of not being subject to effective attack. But whether they
did or not, the possibilities of destroying the actual as distinguished
from the potential effectiveness of a blockade have been entirely
altered by the modern appliances of sea-warfare.

[38] See p. 44.

[39] See the footnote on p. 95.

[40] See p. 62.

[41] _Letters of Historicus_, p. 132, quoted _ante_, p. 48.

[42] _Ibid._ p. 136.

[43] President Pierce, cited _Letters of Historicus_, p. 132.

[44] As an illustration of the scrupulous exactitude of the appeal
to principles by President Wilson in his recent Notes to Germany, I
may refer to the distinction he draws in the Note of June 11, between
the duty of a neutral Government to enforce its own laws in regard to
granting clearances to vessels carrying cargo prohibited by those laws,
and the grant of clearances to vessels carrying contraband of war:
‘Performing its recognised duty as a neutral Power and enforcing its
natural laws, it was its [_i.e._ the Government of the United States]
duty to see to it that the _Lusitania_ was not armed for offensive
action, that she was not serving as a transport, that she did not carry
cargo prohibited by the statutes of the United States, and that if, in
fact, she was a naval vessel of Great Britain she should not receive
clearance as a merchantman. It performed that duty. It enforced its
statutes with scrupulous vigilance through its regularly constituted
officials....’ The performance of these express duties is treated as
distinct from the contention of the German Government that the carriage
of contraband of war was a violation of American law.

[45] _Letters of Historicus_, p. 177.

[46] I gather that the meaning of the official answer, dated March 19,
to the distinguished chemists who were agitating for the inclusion of
cotton in the list of absolute contraband is that their views have been
met by the Order in Council. This answer, as printed in the papers of
April 6, 1915, was as follows:--

                                             War Office,
                                     High Explosives Department,
                                         _19th March, 1915_.

  Institution of Mechanical Engineers,
          Storey’s Gate,
              Westminster, S.W.

      DEAR SIR,--Lord Moulton desires me to acknowledge your
  letter of the 11th March covering a further letter signed by
  various gentlemen.

      Lord Moulton feels that you will be entirely satisfied
  by the terms of the Order in Council dated the 11th day of
  March, 1915, which appeared in the Press of the following day.

                                       Yours faithfully,
                                                    J. BAZIRE.

[47] Dated January 7, 1807.

[48] By Proclamation, August 18, 1915.

[49] The opposite principle is that of the ‘watertight compartments,’
to which reference is made later. It has Westlake’s support, whose
opinion was thus quoted with approval by Mr. Pawley Bate in a learned
article in the July number of the _Quarterly Review_: ‘No attempt to
find a sound juridical basis for blockade has succeeded. Nothing higher
than “compromise by tacit international agreement” can probably be
found.’

[50] See p. 87.

[51] I refer in support of this statement to Westlake’s opinion, cited
in the footnote on p. 95.

[52] See p. 77.

[53] See p. 6.

[54] See footnote on p. 59.

[55] See p. 35.




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