Thesearticles appeared this year in the April, August, and September numbers ofThe Nineteenth Century and After, and I have to thank the Editor for allowing me to reprint them so soon after publication. They are a justification of the much-attacked Order in Council of 11th March, 1915.
In reply to the German submarine menace the British Government resorted, by way of Reprisals, to a method of strangling the enemy’s commerce which, on the one hand, was wider in its scope than any list of contraband, and, on the other, was free from the ‘legal niceties’ which surround a declaration of blockade. Neutral merchants declared that it hit them hard, and the Government of the United States protested that it exceeded the limits which international law has placed to the right of a belligerent to interfere with neutral trade. The British Government replied justifying its action, and there, one would imagine, the matter should have rested for arbitration after the War. But the Government of the United States has continued its protests, has indeed just renewed them in mostvigorous language, desiring to deflect us, in the interests of its commerce, from a course which must materially assist in crushing our enemy.
It is not customary, except in one clear case, for a neutral Government to insist that a belligerent should adopt,in medias res, its views of a question which does not involve any issue of peace or war: to press on him,in medium bellum, a modification of his belligerent action which might cost him the victory. The clear case of exception is when, philosophy at fault, there are not two sides to the question, but one only, and that testified to by flagrant breaches of the laws of humanity and war. Everything else is fair fighting; and for a neutral Government, because its own commercial interests are affected, to insist on the adoption of its view of a debateable point, to persist that it is not debateable, to take action, in itself a violation of international law,[1]savours of unneutral service. In the absence of suggestion of anything but perfect good faith, in the face of much demonstrated care of the interests of its citizens, the abandonment by a neutral Government of the dispassionate attitude which neutrality requires not merely heartens the enemy but must result in rendering him material assistance.
The United States Government, by placing England and Germany on the same plane of protest,—the ‘lawless conduct’ of the belligerents—has,as it seems to me, lost the true measure of national right and wrong on which humanity must rest its laws if civilisation is to continue. In redressing wrongs the law has never placed injuries to life and property on the same level. A neutral Government whose citizens have suffered in life by the action of one belligerent, in fortune, however grievously, by the action of the other, must yet be guided as to the manner of its protests by the relative degree of the offences.
Now, assuming England’s high-sea policy to be illegal, two things appear to me clear: First, that we are entitled to claim from the United States a consideration of the circumstances which led to the commission of the offence of which we are accused, in order to see whether, as Reprisals, it was not justified. The Protest of the 2nd of April expressly refuses this consideration; it proceeds on the assumption that Reprisals can never be resorted to against an enemy, if the interests of a neutral trader are affected: Secondly, that, quite apart from the Arbitration Treaty, we are justified in insisting on a reference to arbitration after the War as the complete present answer to the charge, for this all-sufficient reason, that on calm review it may appear that our action is warranted by international law. There is no indication in the last paragraph of the new Protest that this view is acquiesced in by the United States.
Reduced, therefore, to its simplest expression, the position taken up by the United Statesis this: Our trade is of greater importance than your victory. Admitting the hypothesis to the full that a neutral country has no interest in the result of a war, is unconcerned which side wins, yet I do not believe that this attitude finds any warrant in the principles on which international law is based. But there is another and very practical reason in favour of my second contention. Too strenuous a protest is apt to make men look a little below the surface of mere words, to turn their attention curiously to trade statistics. They have been dexterously handled in the British answers. A neutral Government is not the best judge of its merchants’ claims; inevitably it becomes their advocate, and in the tangle of discussion is apt to identify itself with commercial transactions which, it is common knowledge, often need the closest investigation. The true position of a neutral Government, the almost complete severance from its protection of merchants who deal, however indirectly, with a belligerent, demands, I venture with great deference to assert, an altogether different attitude from that taken by the United States Government.
International law has of late been the subject of much loose talk, by the German especially; and some colour has been lent to his assertions by the nature of the American Protests to Great Britain. International law does not profess to govern the conduct of belligerents between themselves,but only the laws of war. Except in so far as these have been incorporated in conventions, except in so far as the principles of humanity have been reduced into concrete words and so have become laws binding the consenting nations when they fight, it is not the province of international law to mitigate the blows of war.[2]A neutral Government is not concerned with the methods of warfare adopted by a belligerent until they ape the barbarian. Then, even in the absence of convention, it is entitled to protest in the name of our common humanity. Conventions to which both belligerents and the neutral are parties entitle it to support its protest by diplomatic action. But, convention or no convention, more strenuous action is justified by the application of elementary legal principles when its citizens, pursuing their normal avocations, are injured.[3]International law, properly understood, governs the relations of belligerents with neutrals. Its sanctions are not belligerent action, nor any action against the alleged offender, which may even indirectly benefit the enemy. Arbitration after theWar, and compensation, are the only remedies when neutral property has been injured. Then, and only then, can the principles of international law be calmly discussed; then, and only then, can any new departure by a belligerent be tested by a reference to fundamental principles. The reason is obvious. International law is a progressive science; it has not yet pronounced its last word on the relations between belligerency and neutrality. A neutral Government is not entitled to assume that it alone is the judge of what that last word will be.
These fundamental principles have been lost sight of in the Protests of the United States to Great Britain. Yet there never was a case in which calm discussion was more necessary, for we have come to a point when the question is definitely raised whether international law is to stand still where the last war left it, or whether its principles are sufficiently elastic to allow of their adaptation to modern developments of the machinery of war. I say deliberately that this calm discussion must result in the completest justification of the Order in Council; if it does not, the doom of international law is certain.
But the discussion which has arisen round the Order in Council has one peculiar feature. It is, I suppose, one of the blessings resulting from freedom of speech that our own people should criticise the action of their Government, even when the country is engaged in a conflict which must be fought out to the bitter end. Toso much of the world as lies beyond the shadow of the clouds of war, that little fragment of it which is still capable of calm thinking, this curious spectacle has been presented, that to the passionate assertions of the Central Powers, to the dispassionate threats of the United States, there has been added the angry criticism of our own people, in which the press and correspondents, of high and low degree of learning, have joined without remorse. I have looked in vain for one defender of the faith.
Assuredly American dialectic needed no such heartening; the insistence that the American view of international law is alone worthy to be received needed no such support as it has had from our own people. It is true that some of them have been inspired by the British desire that, whate’er betide, England must fight fair. But the end which the angry criticism had in view, and professes to have achieved, was not this at all; it was that the Government should take other steps to accomplish what had already been accomplished by the Order in Council, should decline on a range of lower action, and a narrower line of legal thought. The new Protest, in paragraph 19, does not fail to make the point. Whatever it may be worth, the distinguished chemists, foremost among the critics, are responsible for furnishing the United States with the argument.
The demand for action, so strenuously expressed,during the Cotton-Contraband discussion, entirely ignored what the Government had already done. There may have been cause for criticism as to the effectiveness of executive action. I do not profess to know; but whether this were so or not, it was not to be remedied, as it was attempted to be remedied, by an attack on the validity of the Order in Council. It was said that many lawyers are agreed that it was invalid. I have ventured to present the other side for public consideration.
A system of law, though intermittently created as occasion has arisen, must, if it is to be taken as serious law, stand the test of an evolutionary analysis. The doctrines of contraband and blockade cannot stand for a moment if they are based on no principle, if they go no further back than the commentators have carried them.[4]I have endeavoured to show that the principle on which both are based is the same, and is to be found in the Right of War: that both are the inevitable consequences affecting neutral merchants who have any relations with the enemy of the exercise of legitimate belligerent action against him, and that they originate in, and, though varying in the intensity of its action, are both linked with sea-power and the efficiency of its visible agent, the Fleet. That German commerce should have received its death-blow, that neutral merchants should have suffered in consequence, are thenatural, the inevitable results of the command of the sea which in fair fighting in times past England has won for herself.
But there has been introduced into the controversy an expression, the mere mention of which seems to send men’s minds dancing with unreason—the ‘Freedom of the Sea.’ Very dexterously, the Germans have substituted for it another expression, the ‘Equality of the Sea.’ In spite of the captivating simplicity of the words, it is used with sinister intent, in the hope to redress the inequality of the hostile Fleets.
If a Fleet is a legitimate weapon of offence and defence for nations whose borders are on the sea, then the fortune of one aspect of war between them must rest with the superior Fleet, and when war does come the imagined equality of the sea, whether for belligerents or for neutrals who cross the track of it, vanishes.
The ‘freedom of the sea’ is a cry for something as inarticulate as the other things that the wild waves are saying. It means no more, no less, than does the freedom of the King’s highway, which is subject to a multitude of other rights often reducing it to nothing. The ingenuous pacifist sees in it the fulfilment of the promise that wars shall cease. Yet if that and all the other fanciful ideas which have gathered round it—the ‘neutralization of the sea,’ for example—come to prevail, wars will indeed cease, but in a way the pacifist least dreams of.Hidden in that imagined ‘freedom,’ and the ‘rules’ which have been suggested to ensure it, lies the power of the Strong to make one final war upon the Weak on land, and the end of it the annihilation of the Small Nations; for it means this, that when they are attacked they must defend themselves without help in munitions of war from neutral merchants across the sea.
The ‘freedom of the sea’ is not even complete in time of peace, for it may not be set up by those who have violated the laws of the nations which border its shores. But when war comes the ‘freedom of the sea’ must give way to the rights of war; and no one darenowdeny that to declare war may be a sacred right, to decline the gage of battle an infamy. The only freedom that remains, and even this is curtailed by the right of search, is that of neutral merchants to carry on their trade with one another unmolested, so long as it does not deliberately enmesh itself in the lines and areas of battle. But it must never be forgotten that the United States is not vindicating the simple right of neutral nations to trade with one another untrammelled by belligerent action. It maintains, and all the struggles of its advocacy are devoted to establishing this proposition, that ‘innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory.’[5]Here, then,is the whole matter ‘bounded in a nut-shell.’ It is admitted that a belligerent may forcibly preventallgoods going from a neutral directly to the enemy: it is admitted that he may also prevent certain specified goods (called ‘contraband of war’) going from a neutral indirectly (that is, through another neutral country) to the enemy. The United States protests that international law ends with these two propositions: that there is no underlying principle linking the two admissions, making them only two illustrations of a larger fact: that there is a chasm between them that can never be bridged, even though not merely the conditions of war, but also the constitution of armies have changed: that international law must stand at the point it reached ten years ago, and a belligerent stand passively by while neutral merchants sustain the enemy with the things which give him life to continue the fight.
The mere statement of the dispute shows that the calm of a High Tribunal of Arbitration is the only atmosphere conducive to its just discussion.
That right of war upon the sea, as well as that pure right of neutral traders upon the sea, the Mistress of the Seas must steadfastly maintain, for she holds them in trust for the nations and may not barter them away. Above all, she must know her own mind as to what that right is. She has spoken with full knowledge, and, as Ibelieve, rightly. It would be a grievous blow to her prestige if she were now to abandon the position she has taken up. I cannot imagine such an abandonment to be even dreamed of.[6]
The scheme of these articles is as follows. In the first, published before the American Protest of the 30th of March was received, I have dealt with the principal points in the early American Notes to Great Britain and Germany, and have traced a process of evolution to which all the principles of contraband and blockade, as we used to know them, do in fact conform. In the second, after combating Mr. Norman Angell’s project for the neutralization of the sea, I have shown how this process of evolution warrants, by a legitimate process of development, the practice laid down by the Order in Council. In the third, I have applied these principles to the discussion to which the Government yielded when it put cotton on the list of contraband.
Two questions lie altogether outside the scope of the articles. First, the policy which, prior to the issue of the Order, refrained from making cotton contraband. Secondly, the policy which guides executive action in carrying out the Order.They deal simply with the Order as it stands, not with the method of its enforcement.
I have, for the greater stability of my edifice, used the reinforced concrete of the logic and arguments which Sir William Harcourt created in the famous, but almost forgotten, ‘Letters of Historicus,’ incorporating in the footnotes more extended quotations from those Letters. In a few instances I have added a paragraph to the articles as they originally appeared, for the sake of greater clearness.
I trust that the manner in which I have set forth what I conceive to be the true law of the dispute will give no offence to my friends in the United States. I am sure it will not, for some who took part in the Behring Sea Arbitration are still among the Minority, and they will remember that those discussions did not want for strenuousness with Phelps of counsel for the United States, and Charles Russell for England.
F. T. P.
November, 1915.
November, 1915.