The Neutral Merchant

CONTENTS

THE NEUTRAL MERCHANT

I THE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS — The Use of Neutral Flags by Merchantmen — The First American Note to Great Britain — The First American Note to Germany — THE EVOLUTION OF THE DOCTRINES OF CONTRABAND OF WAR AND BLOCKADE — The Meaning of Neutrality — Contraband of War — The Right and the Duty of Search — The Doctrine of Continuous Voyages — Embargo — Blockade

II THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF THE SEA’ — Mr. Norman Angell’s Plan for the Neutralization of the Sea — General View of the Main Provision of the Order in Council — Application of the Law of Vendor and Purchaser — The Declaration of Paris—Free Ships make Free Goods — The Effect of the Order in Council — The Relation between Contraband of War and Blockade — The Sovereignty over Neutral Ships — The Doctrine of ‘Continuous Voyages’ and the Order in Council — Reprisals — The American Caveat

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 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.

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.

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.

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 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 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.

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.

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

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.

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:—

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.

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:

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 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:

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 — Public Demand for Cotton to be made Contraband of War — The Answer to the Critics of the Government — FOOTNOTES: — Transcriber’s Notes

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.

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.

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]

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