would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace.
This Government takes it for granted that there can be no question what those rights are. A nation’s sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited. And that sovereignty suffers no diminution in times of war except in so far as the practice and consent of civilised nations have limited it by the recognition of certain now clearly determined rights which it is conceded may be exercised by nations which are at war.
A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy’s Government or armed forces. It has been conceded the right to establish and maintain a blockade of an enemy’s ports and coasts, and to capture and condemn any vessel taken in trying to break the blockade. It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral service, and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of equality of sovereignty on the high seas as between belligerents and nations not engaged in war.
If the rights of the neutral merchant are no greater than I have stated them in the first article, and he acts at his own peril and is entirely independent of his own Government, and if the rights of the belligerents are as large as I have there stated them, then it follows that there can be no question of ‘concession’ by the neutral merchant’s Government, in regard to either contraband or blockade, but only an assertion of belligerent right,[40] and all questions as to the sovereignty of that Government over its merchants’ ships disappear. When the neutral merchant is carrying contraband, or when he is blockade-running, he deliberately runs his risk, and therefore cannot claim the protection of his flag.
I think I am not overstating the case when I say that the doctrine on which the United States Government rests its case against us is the exact opposite of this. The prominent position which it holds in the Protest shows that it is regarded as the key-stone of the argument, and that if that key-stone is withdrawn the whole argument must fall to pieces. At the risk of repetition I shall quote again a passage from ‘Historicus,’ referred to in the post-script to the first article, in which he examines the terms of the British proclamations of neutrality. Using his own language, ‘the vital importance of this matter to the great issues’ which have arisen between the United States and Great Britain, ‘must be my excuse.... The interests of peace demand that there should be no doubt on this question.’ In these proclamations, he says, the nature of the consequence, commonly called a penalty, of trading in contraband of war ‘is pointed out with equal clearness and correctness—viz. the withdrawal of the Queen’s protection from the contraband on its road to the enemy, and an abandonment of the subject to the operation of belligerent rights.’[41] And again, ‘when the neutral Sovereign has withdrawn from his subjects engaged in such a trade the protection of his flag, he has discharged the whole duty of neutrality.’[42] To withdraw protection from the merchant when he sets out on his risky adventure, to abandon him during his adventuring to the exercise of sea-power by a belligerent which it is admitted he must exercise because he is at war, is inconsistent with any notion of concession. A neutral vessel carrying contraband is in no better case than if she wore no flag. The fact of the contraband being on board withdraws her from her national protection.
Further, the laws of the United States (which may be taken as typical of neutral countries), ‘do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war ... on board their private ships for transportation.’[43] It is impossible, therefore, to say that the neutral Government—except only when an embargo has been declared—exercises jurisdiction over such private ships, for the national law creates no offence which could give jurisdiction. Therefore it is clear that the neutral vessel by carrying contraband or running blockade puts herself deliberately, and with the acquiescence of her own Government, at the mercy of the other belligerent, and submits to the exercise of belligerent rights.[44]
The right of search might be looked on as a concession, or an infringement of jurisdiction, in the case of ships not carrying contraband. Yet even this does not bear analysis; for, as ‘Historicus’ points out, ‘when a trade in contraband is notoriously and extensively carried on, it exposes the innocent as well as the guilty to suspicion and search, and this is precisely why the Queen in her proclamation of neutrality exhorts her subjects to abstain from such a trade.’[45] The proclamation in fact admits that this search of all vessels on suspicion is an integral and inevitable part of the right of search. It is not a concession, but only the logical extension of the belligerent right to capture contraband on neutral vessels, and to take all steps necessary to attain that end. It is a part of the belligerent right. This question does not arise in connexion with blockade, for there there is no search, and all things become contraband of war.
But although I have been obliged to devote great space to these preliminary subjects, the point of the Protest is still to come. The condition attached by the United States to its theory of the ‘long-distance blockade’ is that free admission and exit must be accorded ‘to all lawful traffic with neutral ports through the blockading cordon.’ ‘Lawful traffic,’ it is explained, ‘would of course include all outward-bound traffic from the neutral country, and all inward-bound traffic to the neutral country except contraband in transit to the enemy.’ This must be read with a sentence which occurs earlier in the Protest:—
It is confidently assumed that His Majesty’s Government will not deny at once [i.e. presumably, ‘will at once admit’] that it is a rule sanctioned by general practice that, even though a blockade should exist and the doctrine of contraband as to blockaded territory be rigidly enforced, innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory without being subject to the penalties of contraband traffic or breach of blockade, much less to detention, requisition, or confiscation.
At last we have the real issue. Assume everything in our favour: that our blockading cruisers are rightly standing far out to sea; that we should be justified in condemning the cargoes seized instead of returning them to the persons lawfully entitled thereto: the United States denies that its own particular doctrine of ‘continuous voyages’ can apply to a ‘long-distance blockade.’ And here undoubtedly the books seem to be in its favour, for the rule they give, embodied in Article 19 of the Declaration of London, is shortly this: the doctrine of ‘continuous voyages’ does not apply to a blockade. This is the logical consequence of the principle to which I have already referred; that the blockading forces must not bar access to neutral ports, because the doctrine of ‘continuous voyages’ expressly deals with cargoes on vessels bound for neutral ports. But it would seem to follow that with the disappearance of the offing from the definition of ‘blockade,’ and the consequent legitimate interference with access to neutral ports, the application of the doctrine of ‘continuous voyages’ must follow as a matter of course. The fact is that the United States Government has not fully counted the cost of its own admission. As I have already shown, once the theory of the ‘long-distance blockade’ is admitted the principle of non-discrimination, a legal nicety appurtenant to the old blockade, goes by the board, because geography compels an involuntary discrimination against neutral countries which are outside the cordon; so it is clear that this other principle of non-application of the doctrine of ‘continuous voyages’ to blockade must also go by the board, because it is the result of principles specially applicable to the old blockade.
The doctrine of ‘continuous voyages’ holds no precious mystery; it never meant more than this: that what the neutral trader cannot do directly without running the risk of seizure and condemnation he cannot do indirectly without running that risk. And whereas, as has been shown, the right to blockade the enemy is in principle no more than the right indefinitely to extend the list of contraband of war against the neutral trader, this must apply equally whether cargoes are going directly or indirectly to the enemy.[46]
The discussion of narrow rules hinders the clear vision of the things which are; and of these the all-important one is that, call it by what name you please, a belligerent will, whenever he has the power, take the necessary steps to cut off all supplies from the enemy; and he will cut them off whether they are going by direct route or indirectly through a neutral port. The old conditions under which that power was exercised have, it is agreed, passed away; the power, which we call the right, remains. The Government of the United States contends, on behalf of its merchants, that they have the right to evade and therefore to nullify that power by supplying the enemy, indirectly and without risk, with those cargoes which they cannot safely supply him with directly. Surely the proposition is impossible on the face of it. To call such cargoes ‘innocent’ is to beg the question. The introduction of the atmosphere and terms of the criminal law has done more to fog the public comprehension of this branch of international law than any inherent complexity of the problems with which it deals. Yet here it will serve to bring home the inaccuracy of the American contention to the public mind; for seizure and condemnation become a sort of retributive penalty for the neutral merchant’s attempt to evade what, to continue the language of law, the belligerent has the right to command, by darkening and disguising his real intention. Judged even by this imperfect standard, the American Protest has cut away the ground from its own contention. The doctrine of ‘continuous voyages’ was accepted because of its logical simplicity; and this simplicity shows that it must extend and reinforce every exhibition of sea-power by a belligerent against his enemy; and its logic prevents the neutral merchant from setting up any right, more especially any right which is not only in conflict with the belligerent right, but is based on deceit and needs a cloak to hide its real meaning. The right he claims is to send to the enemy those supplies which the belligerent has declared his intention and taken effective steps to deprive him of. If the neutral merchant had such a right it would enable him to diminish the force of the belligerent blow, to heal the stroke of the wound.
There has been much talk of retaliation. The Order in Council has adopted the formula of the first of the Orders in Council of 1807,[47] that the action of the enemy has given to His Majesty the ‘unquestionable right of retaliation,’ and it has been assumed, too readily as I venture to think, that this is an admission that our action to-day falls outside the principles sanctioned by international law. The American newspapers have found apt expression of their criticism in the ancient adage ‘Two wrongs do not make a right.’ And in the Protest of the Government this sentence occurs:
If the course pursued by the present enemies of Great Britain should prove to be in fact tainted by illegality and disregard of the principles of war sanctioned by enlightened nations, it cannot be supposed, and the Government does not for a moment suppose, that His Majesty’s Government would wish the same taint to attach to their own actions, or would cite such illegal acts as in any sense or degree a justification for similar practices on their part in so far as they affect neutral rights.
A comparison of the measures taken by the Order in Council with those ordered by the German Admiralty can hardly have been seriously intended; yet to many this sentence seemed to be straining diplomatic proprieties to their utmost limit. But any irritation it may have caused has been blotted out by the stern words of disapproval used by the President in his recent Notes to Germany.
But the reference to retaliation cannot, as it seems to me, be legitimately construed into an admission of the illegality of the measures decreed by the Order in Council. The utmost that can be said of it is that it admits they are exceptional. The Order of 1807 declared that ‘no vessel shall be permitted to trade from one port to another, both French,’ and it was enforced by seizure and confiscation of neutral vessels which disregarded it. That and the other Orders which countered Napoleon’s paper blockade of the English coasts have been severely criticised; but it is impossible to apply the same criticism to an Order which omits the confiscation, and on the contrary, expressly provides for the return of both ship and cargo to the neutral merchant. That the measures are exceptional may be freely admitted, and to that extent they may be called reprisals; but exceptional measures, even of reprisal, are not necessarily illegal measures.
The strangest part of the correspondence remains to be noted. The United States Government, in July, lodged a caveat, intimating that it ‘will not recognise the validity of Prize Court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens under international law.’ The Government has thus indicated the retaliatory measures it proposes to take against Great Britain; yet it has failed to see that the veiled irony of the paragraph just quoted from the Protest applies in its entirety to this reprisal. In so far as it relates to executive action, it proposes to accomplish the impossible. Prize Court judgments are in rem; they pass property, and if possession has followed not even the United States Government can undo it, for there would not be even a tenth point on which it could seize; and if possession has not followed, Government action would be brought up short by the law. Further, in so far as it relates to judicial action, the intention appears to be to give an instruction to the American Courts how in the circumstances they are to deal with the decisions of the English Prize Courts. Thus the constitutional principle of the independence of the Judiciary from the Executive is put in jeopardy, and the Government would again be brought up short by the law. And in so far as it relates to the law itself, the proposed action professes to decide favourably to the present contention of the United States a difficult and complicated question of law—whether judgments based on a municipal law which, it is alleged, is a violation of international law are not entitled to recognition by foreign Courts, more especially if they are judgments in rem. Such a decision does not fall within the province of the Executive, but only of the Courts. So, as it was said aforetime in the British argument in the Behring Sea Arbitration, to all and every part of the different protests which have been made against our action by the United States Government, there is, with profound respect, ‘but one answer—the Law.’
In an Editorial Note in the May number of the North American Review, dealing with the relations between Great Britain and the United States after the detention of the Wilhelmina, this sentence occurs:
If we should once admit the right of the Allies to forbid our sending foodstuffs to Germany, how could we deny the justice of Germany’s insistence that we should apply the same principle to England? And what would happen to the English people then? Surely, too, our British friends must realise that only the strictest adherence to international law makes it possible for us to furnish to the Allies the vast quantities of war munitions without which they could not hope to win.
The great friendliness of its tone cannot but be grateful to us; yet in this short sentence all the fallacies and misconceptions of the real nature of the neutral merchant’s position are concentrated. I have endeavoured to show that we have claimed to exercise a right which a fuller examination of admitted principles shows to be entirely warranted, that the only thing which stands in the way of the prompt admission of its legality is a popular conception of belligerent rights which unduly confines them within limits which have proved themselves to be impossible in modern conditions of war. Law once was the handmaid of commerce: she has long since become its mistress. But what, for want of a better name we call international law is still in a state of servitude. If its doctrines are to be treated as intelligible they must be considered as a continuous development springing from, and as the inevitable consequence of, the first cause, that two nations are at war. Then War becomes the key-note, subdominant, dominant, leading note, every note of the scale of action throughout the world, and the neutral merchant cannot pitch the tune as it may best suit his interests.
Is then the justification for the new procedure of the Order in Council an ultimate reference to Might is Right? Have I, following far behind the United States Government in the strenuousness of the law as I have formulated it, found also a justification for the German who relies on Might without troubling to assert the Right? Surely not. I have striven to base the whole law and every part of the law as it affects the neutral merchant on the plain fact that all exercise of might against the enemy, so long as it comes within the laws of humanity and the rules of war, is justifiable, and the omission of it mere folly, and that it is not limited by considerations of time and space; and on this still plainer fact that the exercise of might against the enemy engenders ‘right’ against such neutral merchants as do, of their own free will and with eyes open, bring themselves within the scope of it.
P.S.—I have dealt with the subject on the supposition that all contracts are made after the declaration of war. But much foreign trade is carried on by ‘long-distance’ contracts, and neutral merchants who have entered into continuing contracts before the War would seem to demand special attention, for their eyes were not open, and the risk of seizure by a belligerent has caught them awares. Speaking generally, it is here that the consideration shown to the neutral merchant by Great Britain may find full scope for action. But I admit quite frankly that so much of my argument as is personal to the neutral merchant does not apply to this category. On the other hand, the law of contraband, with its adjunct the doctrine of ‘continuous voyages,’ and the law of blockade, as they have been understood in the past, do not exempt them from the rigours of their operation. Yet the fact remains that the new development of the law does impose upon them greater risks than they ran heretofore, and a protest specially devoted to their hard case would, I imagine, if it were limited to contracts relating to non-contraband and to contracts not made with the enemy Government, receive careful consideration.