IIICOTTON AS CONTRABAND OF WAR

[September 1915]Cotton proclaimed Contraband of War—Public Demand for the Proclamation—The answer to the Critics of the Government—‘Continuous voyages’ and the Order in Council—Possible combination of Contraband and Blockade—American reply to Austrian Note.

[September 1915]

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

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

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 wrongpolicy 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 beomnia 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 seeksper nefasto 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 knowallthe 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 cloudclear 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 knowallthe 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 UnitedStates 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 thingsin express terms, Germany must be allowed to get her ‘innocent’ shipments of cotton by way ofneutral 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 stoppingallsupplies 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 tellsnothing 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 stopallsupplies 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 bya 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 blockademayincrease 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 striveto 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, thatthe 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 powerof 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 muchnoticed, 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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FOOTNOTES:[1]Thecaveatof the United States Government, published inThe Times, 24th July, 1915. This action is considered in the second article, atp. 90.[2]The book recently published by the French Foreign Office setting forth the crimes of the German Government is, with great and customary accuracy, entitled ‘Les violations des Lois de la Guerre par l’Allemagne.’[3]As by the sinking of a merchantman on which its citizens are travelling, without warning and without affording them proper means of escape, or by the dropping of bombs on an unfortified town in which its citizens are residing. If such neutral citizens are injured, elementary legal principles deprive the belligerent, become barbarian, of the plea that he did not know of theirexistence.[4]See thefootnote on p. 95.[5]Seep. 85.[6]‘The Government will use all its belligerent rights, whatever they may be, whether under the Order in Council, or under the law apart from that Order’ (Lord Robert Cecil, House of Commons, 19th Oct. 1915). ‘The Foreign Office is profoundly anxious to enforce to the utmost our blockade rights.... Taking the broad results, the blockade of Germany had been a great success, and not a great failure’ (Lord Robert Cecil, House ofCommons, 2nd Nov. 1915).[7]The ‘Three Rules’ are contained in Article 6 of the Treaty of Washington, 1871, by which the settlement of the Alabama claims was arranged. It provided that: ‘In deciding the matters submitted to the Arbitrators, they shall be governed by the following three rules, which are agreed upon by the High Contracting Parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case. A neutral Government is bound—first, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike uses. Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. Her Britannic Majesty has commanded Her High Commissioners and Plenipotentiaries to declare that Her Majesty’s Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article 1 arose, but that Her Majesty’s Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in these rules. And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them.’[8]This is expressly declared by Article 7 of the Hague Convention of 1907, No. 13, ‘respecting theRightsand Duties of Neutral Powers in Maritime War,’ which is as follows:—‘A neutral Power is not bound to prevent the export or transit, for either belligerent, of arms, munitions of war, or, in general, of anything which could be of use to an army or fleet.’ The full meaning of this article is made specially clear by its juxtaposition with Article 6, which provides that ‘The supply, in any manner, directly or indirectly, of war-ships, supplies, or war material of any kind whatever, by a neutral Power to a belligerent Power, is forbidden.’[9]Letters of Historicus, p. 121:—‘The recent unfortunate evasion of theAlabamahas given rise to much discussion on the general duty of a neutral Government with respect to the trade of its own subjects with the belligerents in contraband of war. One might have supposed that if there were any question which the authority of accredited writers, the definitions of public documents, and the universal practice of nations, had clearly and decisively ascertained, it was this very question on which, unhappily, there seems to prevail a most general and unfortunate misapprehension. This misapprehension, grave as it is in the exasperation which it is calculated to produce between friendly nations, is not altogether inexplicable. We have the misfortune to live in days when, in the name of liberalism, philanthropy, and civilisation, we are invited to upset the whole fabric of international law which the reason of jurists has designed and the usage of nations has built up, and to rear upon its ruins the trumpery edifice of a shallow caprice. It is the old story of that pretentious philosophy which, by a recurrence to first principles, attempted with so little success to operate the regeneration of mankind. I would that we had yet among us the multitudinous eloquence of Burke or the poignant wit of Canning to do condign justice upon this presumptuous sciolism.’[10]This was generally accepted as a fact at the time this article was written. It must, however, now be noted that the Captain of theEmdenhas denied it.—F. T. P.[11]Wallace’s (U.S.) Reports, p. 514.[12]A sketch of the view of international law presented in this article appeared in some letters by the present writer to theDaily Dispatch.[13]The Earl of Crawford, in the debate in the House of Lords on Naturalisation, 6th January, 1915.[14]Cited,Letters of Historicus, p. 127. The quotation comes from Galiani, but is cited by Azuni with approval. He wonders how Galiani, having enunciated so sound a doctrine, could derive from it the unsound conclusions which he successfully combats.[15]See the quotation from Azuni, citedLetters of Historicus, pp. 126-131:—‘Whatever may be the other demerits of Azuni’s work, his doctrine on this point is unquestionably sound, and the reasons which he adduces are unimpeachably accurate‘“Commerce in all kinds of merchandise, commodities, and articles of manufacture, being allowed in time of peace to the subjects of a nation, so far as the laws of the State, or particular treaties with other Powers create no exception, they ought to be permitted to do the same thing during the continuance of war, since neither of the belligerent parties has a right to impose any new obligations on the neutral, which did not exist in time of peace.‘“In the public treaties down to the present time, do we in fact see any prohibition than that of transportation of contraband goods to an enemy? No nation, not even the most powerful, or those who could, with impunity, exercise the right of the strongest, have ventured, in their declarations of war, dictated by the most violent animosity, to prohibit neutrals from the impartial sale of any goods in their own territory. They have confined themselves to the threat of confiscating contraband articles which should be found clearly destined to the enemy.”’[16]I have not attempted to discuss the questions raised by the Order in Council of October 29, 1914, which put in force, during the hostilities, the Declaration of London, subject to exceptions and modifications.[17]Cited,Letters of Historicus, pp. 133, 170:—‘Mr. Huskisson, in the debate on the Terceira affair in 1830, cites the opinion of Mr. Canning to the following effect (Hansard, vol. xxiv., N.S., p. 209):—‘“Arms may leave this country as a matter of merchandise, and however strong the general inconvenience, the law cannot interfere to stop them. It is only when the elements of armaments are combined that they come within the provision of the law, and if that combination does not take place till they have left this country, we have no right to interfere with them.” These are the words of Mr. Canning, who extended the doctrine to steam-vessels and yachts that might afterwards be converted into vessels of war, and they appeared quite consistent with the law of nations. At the very moment he was speaking, arms and clothing were about to be sent out of this country to belligerents. Were they to be stopped, or were they to be followed and brought back? He believed the answer would be, No; and if it were Yes, of what use, he would ask, would be our skill in building ships, manufacturing arms, and preparing instruments of war, if equally to sell them to all belligerents were a breach of neutrality?’The speech is cited at greater length on p. 170.[18]Cited,Letters of Historicus, p. 129:—‘It is a general understanding, grounded on true principles, that the Powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral Sovereign himself. It was contended on the part of the French nation, in 1796, that neutral Governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent Powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry themselves to the belligerent Powers, contraband articles, subject to the right of seizurein transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile Power to seize, are conflicting rights, and neither party can charge the other with a criminal act.’ (Commentaries, vol. i., p. 142.)[19]Cited,Letters of Historicus, p. 177.[20]See p. 17.[21]Article 4 of the Declaration of London, which stated accurately the established doctrine.[22]From the Convention of 1901 between England and Russia, citedLetters of Historicus, p. 92.[23]From a speech of Lord Grenville, citedLetters of Historicus, p. 108.[24]On p. 2.[25]Letters of Historicus, pp. 165, 168.[26]Letters of Historicus, p. 132:—The following paragraph follows the quotation cited in the text:—‘The true doctrine is enforced with singular clearness and force by President Pierce, in his Message of December, 1854:—“The laws of the United States do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war or soldiers on board their private ships for transportation; and although in so doing the individual citizen exposes his property to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government. Thus, during the progress of the present war in Europe, our citizens have, without national responsibility, therefore, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and France in transporting troops, provisions, and munitions of war, to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our mercantile marine is not interdicted, either by international or by our municipal law, and, therefore, does not compromise our neutral relations with Russia.”’[27]See p. 13.[28]The financial stability of the smaller States holds a very prominent position in the argument ofThe Great Illusion.[29]That his enemies were at least ‘gentlemen’: an opinion expressed in consequence of the courteous treatment he received at Kirkwall on his journey home under safe-conduct.[30]The real issuemustbe understood, or we shall find ourselves in a blind alley. The casemustbe put as strongly as I have put it. The Washington correspondent ofThe Times, writing on July 19, full of anxious solicitude at the gravity of the situation, assuming us to misunderstand it, said: ‘It is all very well to trust to the President’s sense of fairness to prevent the closing of American sources of supply of munitions of war. We can surely do so with perfect safety.’ In the prevalence of this view of the case lies the gravest danger. Once admit that ‘fairness’ has in any shape or form anything to do with the matter, we open the flood-gates of Teuton eloquence, and, to use the conventional expression, the President must be a strong man to resist it. The question must be looked at from a higher standpoint; and it cannot be put more strongly or tersely than it was by Mr. Bryan in his letter to Mr. Stone in January: ‘It is the business of belligerent operations on the high seas, not the duty of a neutral, to prevent contraband from reaching the enemy.... If Germany and Austria-Hungary cannot import contraband from this country it is not because of that fact the duty of the United States to close its markets to the Allies.’[31]The Timescorrespondent from New York, on January 11, thus recorded an extract from Herr Dernburg’s speech at a Republican club in America.An enlightening and interesting commentary on the sincerity of the German diatribes against the United States for ‘helping Germany’s enemies’ is furnished by the fact that, during the rebellion in China in 1913, the rebels in the Southern Provinces obtained large supplies of arms from German firms in Shanghai. The German Government took no steps to prevent its subjects ‘helping the enemies’ of the Republic; on the contrary, it joined, so it was reported, in protesting against the Chinese Government exercising in self-defence its undoubted right of search and seizure of cargoes of arms which it knew were being smuggled into the Settlement in order to be handed over to the agents of the rebel leaders. Circumstances alter cases.[32]The paragraph of the Protest which is here criticised is set out at length on p. 81.[33]See p. 14.[34]In order not to confuse the argument, I refer here specifically only to the case of a neutral vendor and an enemy purchaser. Where the purchaser is also a neutral trader the legal position does not alter until the facts make the case one of ‘continuous voyage.’[35]See p. 37.[36]See the quotation from the Protest, set out on p. 89.[37]I put this forward purely as a theoretical consideration, because I am not sure that Nelson’s historical blockades fulfilled the condition of not being subject to effective attack. But whether they did or not, the possibilities of destroying the actual as distinguished from the potential effectiveness of a blockade have been entirely altered by the modern appliances of sea-warfare.[38]See p. 44.[39]See the footnote on p. 95.[40]See p. 62.[41]Letters of Historicus, p. 132, quotedante, p. 48.[42]Ibid.p. 136.[43]President Pierce, citedLetters of Historicus, p. 132.[44]As an illustration of the scrupulous exactitude of the appeal to principles by President Wilson in his recent Notes to Germany, I may refer to the distinction he draws in the Note of June 11, between the duty of a neutral Government to enforce its own laws in regard to granting clearances to vessels carrying cargo prohibited by those laws, and the grant of clearances to vessels carrying contraband of war: ‘Performing its recognised duty as a neutral Power and enforcing its natural laws, it was its [i.e.the Government of the United States] duty to see to it that theLusitaniawas not armed for offensive action, that she was not serving as a transport, that she did not carry cargo prohibited by the statutes of the United States, and that if, in fact, she was a naval vessel of Great Britain she should not receive clearance as a merchantman. It performed that duty. It enforced its statutes with scrupulous vigilance through its regularly constituted officials....’ The performance of these express duties is treated as distinct from the contention of the German Government that the carriage of contraband of war was a violation of American law.[45]Letters of Historicus, p. 177.[46]I gather that the meaning of the official answer, dated March 19, to the distinguished chemists who were agitating for the inclusion of cotton in the list of absolute contraband is that their views have been met by the Order in Council. This answer, as printed in the papers of April 6, 1915, was as follows:—War Office,High Explosives Department,19th March, 1915.Institution of Mechanical Engineers,Storey’s Gate,Westminster, S.W.Dear Sir,—Lord Moulton desires me to acknowledge your letter of the 11th March covering a further letter signed by various gentlemen.Lord Moulton feels that you will be entirely satisfied by the terms of the Order in Council dated the 11th day of March, 1915, which appeared in the Press of the following day.Yours faithfully,J. Bazire.[47]Dated January 7, 1807.[48]By Proclamation, August 18, 1915.[49]The opposite principle is that of the ‘watertight compartments,’ to which reference is made later. It has Westlake’s support, whose opinion was thus quoted with approval by Mr. Pawley Bate in a learned article in the July number of theQuarterly Review: ‘No attempt to find a sound juridical basis for blockade has succeeded. Nothing higher than “compromise by tacit international agreement” can probably be found.’[50]See p. 87.[51]I refer in support of this statement to Westlake’s opinion, cited in the footnote on p. 95.[52]See p. 77.[53]See p. 6.[54]See footnote on p. 59.[55]See p. 35.

[1]Thecaveatof the United States Government, published inThe Times, 24th July, 1915. This action is considered in the second article, atp. 90.

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

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

[4]See thefootnote on p. 95.

[5]Seep. 85.

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

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

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

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

[10]This was generally accepted as a fact at the time this article was written. It must, however, now be noted that the Captain of theEmdenhas denied it.—F. T. P.

[11]Wallace’s (U.S.) Reports, p. 514.

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

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

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

[15]See the quotation from Azuni, citedLetters of Historicus, pp. 126-131:—‘Whatever may be the other demerits of Azuni’s work, his doctrine on this point is unquestionably sound, and the reasons which he adduces are unimpeachably accurate‘“Commerce in all kinds of merchandise, commodities, and articles of manufacture, being allowed in time of peace to the subjects of a nation, so far as the laws of the State, or particular treaties with other Powers create no exception, they ought to be permitted to do the same thing during the continuance of war, since neither of the belligerent parties has a right to impose any new obligations on the neutral, which did not exist in time of peace.‘“In the public treaties down to the present time, do we in fact see any prohibition than that of transportation of contraband goods to an enemy? No nation, not even the most powerful, or those who could, with impunity, exercise the right of the strongest, have ventured, in their declarations of war, dictated by the most violent animosity, to prohibit neutrals from the impartial sale of any goods in their own territory. They have confined themselves to the threat of confiscating contraband articles which should be found clearly destined to the enemy.”’

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

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

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

[17]Cited,Letters of Historicus, pp. 133, 170:—‘Mr. Huskisson, in the debate on the Terceira affair in 1830, cites the opinion of Mr. Canning to the following effect (Hansard, vol. xxiv., N.S., p. 209):—‘“Arms may leave this country as a matter of merchandise, and however strong the general inconvenience, the law cannot interfere to stop them. It is only when the elements of armaments are combined that they come within the provision of the law, and if that combination does not take place till they have left this country, we have no right to interfere with them.” These are the words of Mr. Canning, who extended the doctrine to steam-vessels and yachts that might afterwards be converted into vessels of war, and they appeared quite consistent with the law of nations. At the very moment he was speaking, arms and clothing were about to be sent out of this country to belligerents. Were they to be stopped, or were they to be followed and brought back? He believed the answer would be, No; and if it were Yes, of what use, he would ask, would be our skill in building ships, manufacturing arms, and preparing instruments of war, if equally to sell them to all belligerents were a breach of neutrality?’The speech is cited at greater length on p. 170.

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

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

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

[19]Cited,Letters of Historicus, p. 177.

[20]See p. 17.

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

[22]From the Convention of 1901 between England and Russia, citedLetters of Historicus, p. 92.

[23]From a speech of Lord Grenville, citedLetters of Historicus, p. 108.

[24]On p. 2.

[25]Letters of Historicus, pp. 165, 168.

[26]Letters of Historicus, p. 132:—The following paragraph follows the quotation cited in the text:—‘The true doctrine is enforced with singular clearness and force by President Pierce, in his Message of December, 1854:—“The laws of the United States do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war or soldiers on board their private ships for transportation; and although in so doing the individual citizen exposes his property to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government. Thus, during the progress of the present war in Europe, our citizens have, without national responsibility, therefore, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and France in transporting troops, provisions, and munitions of war, to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our mercantile marine is not interdicted, either by international or by our municipal law, and, therefore, does not compromise our neutral relations with Russia.”’

[26]Letters of Historicus, p. 132:—The following paragraph follows the quotation cited in the text:—

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

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

[27]See p. 13.

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

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

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

[31]The Timescorrespondent from New York, on January 11, thus recorded an extract from Herr Dernburg’s speech at a Republican club in America.An enlightening and interesting commentary on the sincerity of the German diatribes against the United States for ‘helping Germany’s enemies’ is furnished by the fact that, during the rebellion in China in 1913, the rebels in the Southern Provinces obtained large supplies of arms from German firms in Shanghai. The German Government took no steps to prevent its subjects ‘helping the enemies’ of the Republic; on the contrary, it joined, so it was reported, in protesting against the Chinese Government exercising in self-defence its undoubted right of search and seizure of cargoes of arms which it knew were being smuggled into the Settlement in order to be handed over to the agents of the rebel leaders. Circumstances alter cases.

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

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

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

[33]See p. 14.

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

[35]See p. 37.

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

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

[38]See p. 44.

[39]See the footnote on p. 95.

[40]See p. 62.

[41]Letters of Historicus, p. 132, quotedante, p. 48.

[42]Ibid.p. 136.

[43]President Pierce, citedLetters of Historicus, p. 132.

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

[45]Letters of Historicus, p. 177.

[46]I gather that the meaning of the official answer, dated March 19, to the distinguished chemists who were agitating for the inclusion of cotton in the list of absolute contraband is that their views have been met by the Order in Council. This answer, as printed in the papers of April 6, 1915, was as follows:—War Office,High Explosives Department,19th March, 1915.Institution of Mechanical Engineers,Storey’s Gate,Westminster, S.W.Dear Sir,—Lord Moulton desires me to acknowledge your letter of the 11th March covering a further letter signed by various gentlemen.Lord Moulton feels that you will be entirely satisfied by the terms of the Order in Council dated the 11th day of March, 1915, which appeared in the Press of the following day.Yours faithfully,J. Bazire.

War Office,High Explosives Department,19th March, 1915.

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

Dear Sir,—Lord Moulton desires me to acknowledge your letter of the 11th March covering a further letter signed by various gentlemen.Lord Moulton feels that you will be entirely satisfied by the terms of the Order in Council dated the 11th day of March, 1915, which appeared in the Press of the following day.

Dear Sir,—Lord Moulton desires me to acknowledge your letter of the 11th March covering a further letter signed by various gentlemen.

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

Yours faithfully,J. Bazire.

[47]Dated January 7, 1807.

[48]By Proclamation, August 18, 1915.

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

[50]See p. 87.

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

[52]See p. 77.

[53]See p. 6.

[54]See footnote on p. 59.

[55]See p. 35.

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