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.

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,