THE NEUTRAL MERCHANT

ITHE NEUTRAL MERCHANT: THREE AMERICAN NOTES AND THE ANSWERS

[April 1915]The ‘Letters of Historicus’—General Position of the Neutral Merchant—Use of Neutral Flags by Merchantmen to Escape Capture or Destruction—First American Note to Great Britain—British Interim Reply—The Complete Reply—First American Note to Germany—German Reply—Evolution of the Doctrines of Contraband of War and Blockade—Meaning of Neutrality—Contraband of War—Conditional Contraband—Declaration of Paris as to Freedom of Neutral Goods and of Enemy Goods under Neutral Flag—Prize Courts—The Conflicting Rights of Neutral Merchants and of Belligerents—The Right and Duty of Search—Doctrine of Continuous Voyages—Embargo—Blockade—The New Policy of the British Government—Foreign Enlistment—Proclamations of Neutrality.

[April 1915]

The ‘Letters of Historicus’—General Position of the Neutral Merchant—Use of Neutral Flags by Merchantmen to Escape Capture or Destruction—First American Note to Great Britain—British Interim Reply—The Complete Reply—First American Note to Germany—German Reply—Evolution of the Doctrines of Contraband of War and Blockade—Meaning of Neutrality—Contraband of War—Conditional Contraband—Declaration of Paris as to Freedom of Neutral Goods and of Enemy Goods under Neutral Flag—Prize Courts—The Conflicting Rights of Neutral Merchants and of Belligerents—The Right and Duty of Search—Doctrine of Continuous Voyages—Embargo—Blockade—The New Policy of the British Government—Foreign Enlistment—Proclamations of Neutrality.

The intellectual barometer stands at ‘Hazy’ on the subject of neutrality, even in this country. In Germany it has ceased to register anything which even pretends to be intelligent. In the United States there are what might aptly be called cyclonic and anti-cyclonic disturbances. If my view as to English knowledge of the subject be questioned, I would ask my readers how often they have of late met in the newspapers the phrase ‘duties of neutrals,’ and what answer they havefound to the inevitable query, ‘Which be they?’ Within the last few weeks I read a contribution toThe Timesfrom ‘A Legal Correspondent,’ in which these duties were referred to in most bewildering fashion. He said that there existed special bonds between this country and the United States; that both have stringent Foreign Enlistment Acts; that both agree to what are known as the ‘Three Rules’ of the Washington Treaty as to the duties of neutrals, and that both had promised to bring these Rules to the notice of other States. This statement was painfully misleading; the ‘Three Rules’ were agreed to as the basis on which the Alabama arbitration was to be decided, and related solely to the subject known as ‘Foreign Enlistment.’[7]But if by ‘dutiesof neutrals’ is meant, as I presume to be the case, the duties of neutral Governments, they can be summarised in one great negative—to do nothing, except when they are called on to defend their neutrality against the action of either belligerent,inter alia, in the cases provided for by the Hague Convention of 1907 relating to neutrality. So far-reaching is this universal negative that it includes non-interference with their merchants in their dealings with belligerents.[8]If, however, the term refers to duties of neutral merchants, then it is inapt and misleadingly inaccurate; for the existence of any such general duty as to cease trading, for which the Germans are so strenuously contending, is wholly imaginary.

Fifty years ago another continent was riven with war, and there was much talk of what a neutral might do, and might not do; and thereappeared inThe Timesa series of letters signed ‘Historicus,’ in which, among other things, the elementary principles of neutrality were very strenuously and very lucidly set forth. Very strenuously, for there was a certain M. Hautefeuille who had filled the world—like the Dernburgs of to-day—with much unsound doctrine. Now unsound doctrine was a thing which stirred Mr. Vernon Harcourt to the depths of his soul, and those only who have heard him know what waves of wrath surged up in his brain. He had the art of transferring to paper the billowy language he was wont to use; and as you read you hear the rotund sentences rolling onwards to swamp the frail bark of his adversary. But he had another art: of clear thinking and lucid exposition. In the series of Whewell Lectures which I attended at Cambridge in the year of grace ——, of which I still preserve my notes, he seemed to make plain the whole mystery of Public International Law. New times have produced new teachers of the old heresies; and it is good to turn once more to the pages of the ‘Letters of Historicus,’ for again the neutral nations 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.’ To adapt his references[9]to Burkeand Canning to himself, ‘I would that we had yet amongst us his multitudinous eloquence and his poignant wit to do justice upon this presumptuous sciolism’ of the German Foreign Office. The world, indeed, seems still to need his teaching. From what one hears in the market-place I gather that there is a vague feeling in the air that our case is notquiteso good as we should like it to be; that there is a mysterious crevice in our armour-joints through which, if not the German, at least Uncle Sam has pricked us. There is a nebulous ‘something’ about neutrality, especially about ‘neutral duties,’ which seems to preclude accurate thinking; and even the ‘Legal Correspondent’ does not always pierce the haze. So the student, in memory of an hour spent after lecture in his master’s rooms in Neville’s Court, when kindly patient, and so lucidly, he expounded to him the meaning of a difficult decision, will endeavour to weave into a continuous whole the threads of the doctrine which he taught. It is not that people do not know; only that they forget.

The neutral merchant is the centre round whichthe principal doctrines of international law dealing with neutrality have gathered. It seems strange at first that in time of war the commercial rights of a mere money-making civilian should invariably form the subject of endless discussions; but this civilian really holds a very important position in the waging of war; it could not go on without him. Each belligerent has need of him, and it is essential to each to prevent the other from satisfying that need. To block the enemy’s communications with the neutral merchant is one of the surest ways of ending the war. To this end many ingenious things have been devised, and as many equally ingenious to counteract them; and in this the merchant’s fertile brain has materially assisted. The problem is a complex one, for each belligerent as a buyer must strive to keep him in a good humour, but as a fighter must do all he can to thwart him. As for the neutral merchant himself, he is calmly indifferent to the merits of the fight; nothing pleases him so much as to be ‘Jack of Both Sides.’ He will take all he can get from one side and cry out for more from the other. When the War is over we may muse philosophically on some aspects of the Protest which the United States Government has addressed to Great Britain on behalf of its merchants; for the present, with all its serious issues hanging in the balance, the American Notes require careful study, for they themselves raise an issue as serious as any which the War has raised—whether Great Britain has been true to the principles she has so often preached, or whether the German accusation, or the American suggestion, that shehas violated them can be substantiated; whether, when all is over, we shall be able to say proudly that it has been War with Honour.

Two Notes have been addressed to Great Britain, and it will be convenient to refer at once to the second Note, which deals with the use by our merchantmen of neutral flags. The neutral merchant is directly concerned with this custom of the sea, for he may have cargo on board, and if this means of deceiving the enemy’s warships is declared to be illegal he runs the chance of its being sent to the bottom.

The facts which gave rise to the Note are of the simplest. On the 30th of January two German submarines appeared off Liverpool, and, giving the crews ten minutes to take to the boats, torpedoed and sank some British merchant vessels. On the 6th of February theLusitania, coming up the Irish Channel at the end of her voyage from New York, hoisted the Stars and Stripes and came safely to harbour. To these simple facts are to be added, according to the German version, that the Admiralty advised the master by wireless to hoist the American flag; or had issued a secret order to merchant ships in general to hoist a neutral flag in the circumstances. Whether these facts are accurate or not is absolutely immaterial; but the Germans have based on them the charge of violation of international law. It should be noted with surprised wonder that the German Admiralty seemsto have forgotten that theEmdensailed into Penang harbour flying the Japanese ensign, and that this, added to her other disguises, enabled her to accomplish her raid successfully.[10]The United States Government, having been appealed to by Germany, addressed a Note to Great Britain, to the great jubilation of her adversary; for she had just planned the infamy of her new piracy, and the smart of the thrashing administered to herself was somewhat mitigated by the fact that the other boy got a ‘wigging’ too. The position of the United States is so delicate, her diplomatic officers have achieved so much, her people have done and said so many things that have gone to our hearts, that it is impossible to be querulous at the presentation of the Note; yet, when it is analysed, it seems to go far beyond what was necessary to the occasion, and it has enabled Germany to confuse, in her usual clumsy fashion, thepostand thepropterin the sequence of events.

The Government of the United States reserved for future consideration the legality and propriety of the deceptive use of the flag of a neutral Power in any case for the purpose of avoiding capture; but pointed out that the occasional use of the flag of a neutral or of an enemy under stress of immediate pursuit, and to deceive an approaching enemy, was

a very different thing from the explicit sanction by a belligerent Government for its merchant ships generallyto fly the flag of a neutral Power within certain portions of the high seas which, it is presumed, will be frequented with hostile warships. A formal declaration of such a policy for the general misuse of a neutral’s flag jeopardises the vessels of a neutral visiting those waters in a peculiar degree by raising the presumption that they are of belligerent nationality, regardless of the flag they may carry.

The Note declared that the United States would view with anxious solicitude any such general use of its flag; it would afford no protection to British vessels, it would be a serious and constant menace to the lives and vessels of American citizens, and a measure of responsibility for their loss would be imposed on the Government of Great Britain.

The reply of the British Government was short and to the point. It dwelt on the fact that the Merchant Shipping Act sanctions the use of the British flag by foreign merchantmen in time of war for the purpose of evading the enemy; that instances are on record when United States vessels availed themselves of this facility during the American Civil War, and that, therefore, it would be contrary to fair expectation if now, when the conditions are reversed, the United States and neutral nations were to grudge to British ships liberty to take similar action. ‘The British Government,’ it continued, ‘have no intention of advising their merchant shipping to use foreign flags as a general practice, or to resort to them otherwise than for escaping capture or destruction.’ Finally, the responsibility for the loss of neutral vessels in such circumstances mustfall on the nation which had deliberately disregarded the obligations recognised by all civilised nations in connexion with the seizure of merchant ships.

It is clear that the American Note had special regard to the future, and expressed no opinion as to what had occurred in the case of theLusitania. Now she did not fly the American flag to escape capture, but to escape the probability of being unlawfully sunk by a German submarine; for, in view of what had already happened off Liverpool, it is more than probable that a submarine was in lurking for her; to judge from the German irritation at her escape, it is practically certain. What she did, therefore, was in self-defence, and even unlawful things become lawful when they are done to escape extreme danger. The Note refers to the use of a neutral flag to escape capture, the reply justifies it, and the Merchant Shipping Act sanctions it. But, seeing that capture by the enemy is equivalent to destruction, quite apart from the methods of the new piracy, there can be no doubt that the principle of self-defence covers this case also. Self-defence is a natural law which has been embodied in all legal systems, and Nature has sanctioned it as a special plea. ‘Protective coloration’ is the device by which she defends the weak from the unscrupulous strong; it is ‘mimesis,’ a mimetic change, which Nature not only approves in the case of actually hunted animals, but also and mainly devises for those which are likely to be hunted. So the analogy is complete, and the change of her ‘colours’ bytheLusitaniato escape the lurking danger of the submarine stands justified by both natural and human law. I prefer this explanation to the theory of theruse de guerre.

By aruse de guerre, or stratagem of war, I understand the adoption of some means of deceiving the enemy in war, some device out of the ordinary course of fighting. The old adage that ‘all is fair in love and war’ is not strictly true, for some stratagems are not unjustifiable in war, and some are. TheEmden, when she rigged up a fourth funnel, so making believe she was some other ship, resorted to a legitimate stratagem which had unfortunate results for our Allies’ ships in Penang harbour. The German soldiers who put on our dead men’s uniforms also resort to a stratagem; but we are fastidious in our methods of fighting, and do not admit that this is ‘playing the game’ of war. But, whether legitimate or illegitimate, these areruses de guerre; and the term is hardly applicable to a stratagem adopted by a non-combatant to avoid an unlawful trap set by the enemy for his destruction.

I pass now to the more serious matter of the Note of friendly protest of the 28th of December, which was an amplification of one already presented on the 7th of November. It opens with the declaration that the present condition of the trade of the United States, resulting from frequent seizures and detentions of cargoes destinedto neutral European ports, has become so serious as to require a candid statement of the view of the United States Government that the British policy is an infringement of the rights of its citizens, and denies to neutral commerce the freedom to which it is entitled by the law of nations. An improvement had been confidently awaited on account of the statement of the Foreign Office that the British Government ‘were satisfied with guarantees offered by the Norwegian, Swedish, and Danish Governments as to the non-exportation of contraband goods when consigned to named persons in the territories of those Governments.’ But although nearly five months had passed since the War began, it was a matter of deep regret to find that the British Government

have not materially changed their policy and do not treat less injuriously ships and cargoes passing between neutral ports in the peaceful pursuit of lawful commerce which belligerents should protect rather than interrupt. The greater freedom from detention and seizure which was confidently expected to result from consigning shipments to definite consignees rather than ‘to order’ is still awaited.

The general principle is then laid down that, ‘seeing that peace, and not war, is the normal relation between nations,’

the commerce between countries which are not belligerents should not be interfered with by those at war unless such interference is manifestly an imperative necessity to protect their national safety, and then only to the extent that it is a necessity.

But articles on the list of absolute contraband consigned to neutral countries from America have been seized and detained ‘on the ground that the countries to which they were destined have not prohibited the exportation of such articles.’ Italy had prohibited the export of copper, and shipments to Italian consignees or ‘to order’ cannot be exported or transhipped; copper can only pass through that country if it is in transit to another country. Yet the British Foreign Office had ‘declined to affirm that copper shipments to Italy will not be molested on the high seas.’

In the case of conditional contraband there is a presumption of innocent use when it is destined to neutral territory; yet the British authorities had seized and detained cargoes without

being in possession of facts which warranted a reasonable belief that the shipments had in reality a belligerent destination as that term is used in international law. Mere suspicion is not evidence, and doubts should be resolved in favour of neutral commerce, not against it.

Cargoes had, in fact, been seized ‘because of a belief that, though not originally so intended by the shippers, they will ultimately reach’ the enemy. A consignment of conditional contraband shipped to a neutral port does not raise a presumption of enemy destination; such a presumption is directly opposed to Lord Salisbury’s statement, made during the South African war, as to foodstuffs (equally applicable to all conditional contraband) which, ‘though having a hostile destination, can be considered as contraband only if they are for the enemy forces. It is not sufficient thatthey are capable of being so used. It must be shown that was in fact their destination at the time of their seizure.’ As to concealed contraband, it is conceded that there is a right to detain neutral ships when there is sufficient evidence to justify belief that contraband articles are in their cargoes; but the ships cannot be taken into port and there detained ‘for the purpose of searching generally for contraband, or upon presumptions created by special municipal enactment which are clearly at variance with international law and practice.’ Many of the industries of the United States are suffering ‘because their products are denied long-established markets in European countries which, though neutral, are contiguous to the nations at war.’ The effect on trade is not entirely cured by reimbursements for damages suffered when an enemy destination has not been established; ‘the injury is to American commerce as a whole through the hazard of the enterprise and the repeated diversion of goods from established markets.’

Resolved into its simplest expression, the complaint is a criticism of the way in which the doctrine of ‘continuous voyages’ has been applied by the British Government; but there is also a veiled criticism of the doctrine itself; and, by way of further complaint, it is pointed out that the embargoes which have been declared in certain countries have proved insufficient to prevent the doctrine being applied. As to the principle asserted that doubts are to be resolved in favour of neutral commerce, it has no warrant in common sense,for it puts a premium on the neutral merchant’s ingenuity, an ingenuity which has itself given rise to the doctrine of ‘continuous voyages.’ Seeing that commerce is in the balance against a nation’s existence, the doubt must obviously be resolved in favour of the more important consideration. The Note is also open to the general criticism that it is based on the position of the vendor and ignores the purchaser. But the true criterion of destination must often be found in the intentions of the neutral purchaser of which the neutral vendor may be ignorant.

An interim reply was sent by the British Government on the 7th of January. It begins with a cordial concurrence in the general principle that a belligerent should not interfere with trade between neutrals unless such interference is necessary to protect the belligerent’s national safety, and then only to the extent to which this is necessary; with this qualification, however, that

we shall endeavour to keep our action within the limits of this principle, on the understanding that it admits our right to interfere when such interference is, not withbona-fidetrade between the United States and another neutral country, but with trade in contraband destined for the enemy’s country, and we are ready, whenever our action may unintentionally exceed this principle to make redress.

The figures showing the export of copper from the United States in 1913 and 1914 to Italy, Sweden, Denmark, and Switzerland (‘countries which, though neutral, are contiguous to the nations at war’) are then compared, and theirastonishing increases duly noted. The conclusion is very clear.

With such figures the presumption is very strong that the bulk of the copper consigned to these countries has recently been intended not for their own use, but for that of a belligerent who cannot import it direct.

Granted the soundness of the American proposition, the British case falls within it; the ‘imperative necessity for the safety of the country’ has arisen. As to concealed contraband the case is even clearer. Cotton is not on the list of contraband. But information has reached the Government that ‘precisely because we have declared our intention of not interfering with cotton, ships carrying cotton will be specially selected to carry concealed contraband; and we have been warned that copper will be concealed in bales of cotton.’ For this there is only one remedy: the cargo must be examined and the bales weighed; further, this cannot be done at sea, therefore the ship must be brought into port. The general justification of the action of the British Government is couched in these weighty words, which go to the foundations of the whole law of contraband and the right of search: ‘We are confronted with the growing danger that neutral countries contiguous to the enemy will become, on a scale hitherto unprecedented, a base of supplies for the armed forces of our enemies and for materials for manufacturing armament.... We endeavour, in the interest of our own national safety, to prevent this danger by intercepting goods really destinedfor the enemy, without interfering with those which arebona-fideneutral.’

The extraordinary procedure adopted by the United States Government ofprohibitingthe publication of manifests within thirty days after the departure of vessels from American ports, obviously increased the difficulties of the British Government in exercising its right of search even in the most ordinary circumstances. If I am right in my view that the duty of neutrals is to do nothing, for the simple reason that any action may be of assistance to one of the belligerents, it must be confessed that this order comes perilously near to a breach of neutrality.

The reply deals also with the seizure of foodstuffs, but it is unnecessary, in view of subsequent action taken in regard to them, to refer to this part of the document. It also mentions a somewhat unusual complaint, not included in the American Note, of our own embargo on rubber, imposed in consequence of a new trade in exporting rubber from the United States in suspiciously large quantities to neutral countries, which had sprung up since the war. The complaint is not very intelligible, because it looks at embargo from the wrong point of view. The right point of view is explained later in this article.

The full reply of the British Government was dated the 10th of February. It contained the very important declaration that our action against neutral vessels ‘has been limited to vessels on their way to enemy ports or ports in neutral countries adjacent to the theatre of war, becauseit is only through such ports that the enemy introduces the supplies which he requires for carrying on the war.’ In other words, the importance of the doctrine of ‘continuous voyages’ at the present time is emphasised; and its necessity is demonstrated by a further review of trade statistics, which led to the inevitable conclusions ‘that not only has the trade of the United States with the neutral countries in Europe been maintained as compared with previous years, but also that a substantial part of this trade was, in fact, trade intended for the enemy countries going through neutral ports by routes to which it was previously unaccustomed.’

But even more important is the opinion deliberately expressed that international law, like every other judge-made law, is a live body of principles which can and must keep abreast of the times. Its rules are not arbitrarily devised as occasions arise, but are based on principles which have developed with the progress of the world. Any apparent changes in the law which Great Britain has introduced are not arbitrary inventions which have in view merely the crushing of Germany, but are justified by well-known principles applied to new conditions. The process of adaptation is no new one. The advent of steam-power had a notable influence on the development of the law, for the facilities introduced by steamers and railways, while they simplified the task of the neutral merchant in contraband, had enormously magnified the difficulties of the belligerent.

The question in issue can be stated in almostprimitive fashion. Are the rules which governed the rights of belligerents when there were no railways, to govern them when the transit of contraband over the frontier of a neutral and a belligerent State has been made so easy? The answer is not an absolute negative; it is that the old principles are living principles and are capable of extension to meet the new occasions.

But to explain the reasons for a step which has already been taken and to find sound reasons for a step which has to be taken are two different things. The first requires reasoning power, the second imagination; and I find this in the position boldly taken up and courageously insisted on, that the growth in size of ocean liners has rendered a further amplification of the old rules necessary. They must be brought into port for examination.

The American loves the cut and thrust of argument, and must at once have acknowledged that the reference to the fact that the doctrine of ‘continuous voyages’ originated with the Judges of the United States was not atu quoque, but a brilliant illustration of the principle of development of the law. It is abundantly clear from every paragraph of this remarkable reply that this doctrine has become the one principle worth fighting for now, for our national safety depends on it. And the American will appreciate the delicacy of the compliment which can find no stronger arguments than those used by the Judges of the United States Prize Courts when they established it.

The earlier American Note of the 7th ofNovember had contended that ‘the belligerent right of visit and search requires that the search should be made on the high seas at the time of the visit, and that the conclusion of the search should rest upon the evidence found on the ship under investigation, and not upon circumstances ascertained from external sources.’ But the major premiss is that the actual destination of the vessel to the neutral port may be merely a cloak for the real destination of the cargo to the enemy; and the citation from the judgment in the case of theBermuda[11]is a complete answer:

The final destination of the cargo in this particular voyage was left so skilfully open ... that it was not quite easy to prove, with that certainty which American Courts require, the intention, which it seemed plain must have really existed. Thus to prove it required that truth should be collated from a variety of sources, darkened and disguised; from others opened as the cause advanced, and by accident only; from coincidences undesigned, and facts that were circumstantial. Collocations and comparisons, in short, brought largely their collective force in aid of evidence that was more direct.

To introduce the rigid rules of evidence necessary to a common-law action in a question which is not a lawsuit at all, but an inquiry, would obviously cripple the effectiveness of the doctrine of ‘continuous voyages’; the occasions with which that doctrine deals have by force of circumstances become the most important source of supply of those commodities which a belligerent must at all hazards prevent his enemy obtaining. Andif we go back to the root-principle, that the whole law and every part of it depend on the right of self-defence, no stronger argument is necessary to justify the principle laid down in this case, nor for the provisions of the Order in Council of the 29th of October, which throw the burden of proof of his innocence on the neutral owner of contraband.

I now come to the Note to Germany of the 12th of February, delivered in consequence of the notification of her under-sea policy, and for which ‘Warning’ is the only appropriate term. The statement of the principles set at defiance is introduced by the satirical formula ‘It is unnecessary to remind,’ the whole object of the Note being to remind the German Government that the interference with the freedom of the sea is limited to search and blockade, and that in the absence of effective blockade the belligerent nationality or contraband character of the cargo must be determined before a vessel may be destroyed.

To this Note came the German reply which set forth England’s iniquities and violations of international law, which were in startling contrast to the scrupulous observance of ‘valid international rules regarding naval warfare’ by Germany. There is a complacent reference to the American Note to Great Britain of the 28th of December, which sets out the details of our iniquities ‘sufficiently, though not exhaustively’; but the main interest of the document is itsmethod of dealing with the duties of neutral States towards Germany.

Neutrals have been unable to prevent the interruption of their commerce with Germany, which is contrary to international laws.Germany is as good as cut off from her overseas supply by the silent or protesting toleration of neutrals not only in regard to such goods as are absolute contraband, but also in regard to such as, according to the acknowledged law before the war, are only conditional contraband or not contraband at all. Great Britain, on the other hand, is, with the toleration of neutral Governments, not only supplied with such goods as are not contraband or only conditional contraband, but with goods which are regarded by Great Britain, if sent to Germany, as absolute contraband—namely, provisions, industrial raw material, etc.—and even with goods which have always indubitably been regarded as absolute contraband.

Neutrals have been unable to prevent the interruption of their commerce with Germany, which is contrary to international laws.

Germany is as good as cut off from her overseas supply by the silent or protesting toleration of neutrals not only in regard to such goods as are absolute contraband, but also in regard to such as, according to the acknowledged law before the war, are only conditional contraband or not contraband at all. Great Britain, on the other hand, is, with the toleration of neutral Governments, not only supplied with such goods as are not contraband or only conditional contraband, but with goods which are regarded by Great Britain, if sent to Germany, as absolute contraband—namely, provisions, industrial raw material, etc.—and even with goods which have always indubitably been regarded as absolute contraband.

There follows a reference ‘with greatest emphasis’ to the enormous traffic in arms which is being ‘carried on between American firms and Germany’s enemies’; after which come two sentences most typical of German occultness:

Germany fully comprehends that the practice of right and toleration of wrong on the part of neutrals are matters absolutely at the discretion of neutrals and involve no formal violation of neutrality.... If it is the formal right of neutrals to take no steps to protect their legitimate trade with Germany, and even to allow themselves to be influenced in the direction of conscious wilful restriction of their trade, on the other hand, they have a perfect right, which they unfortunately do not exercise, to cease contraband trade, especially in arms, with Germany’s enemies.

The involutions of these astonishing sentencesare worthy of the White Queen at her best, and it is quite a difficult exercise to arrive at their meaning. So far as I have been able to get at it, it is something like this:—Trade is free; you neutral merchants have a right to trade with Germany as with Great Britain; why don’t you? That would be the ‘practice of right.’ Germany has as much right to have you trade with her as Great Britain has; why do you deny her that right? You allow yourselves rather ‘to be influenced in the direction of conscious wilful restriction’ (in other words, you submit to having your cargoes seized by Great Britain). Of course you have the right to take no steps to protect your legitimate trade with Germany, and you take none (in other words, you refuse to resist the seizures of your cargoes by force); that is ‘the toleration of wrong.’ And so you cease to trade with Germany. But you have also a perfect right to cease trading in contraband (especially in arms) with Great Britain. Why don’t you? In her case you do not allow yourselves ‘to be influenced in the direction of conscious wilful restriction.’ To all of which the neutral merchants reply: When you begin to make an appreciable attack upon our trade with Great Britain and seize our cargoes, then you may be sure that we shall be influenced ‘in the direction of conscious wilful restriction’ of that trade also. But until that time arrives, we regret that we cannot take the risk of having to run the gauntlet of the British Fleet. In all seriousness these mysterious sentences mean no more than that Germany has lost such influence upon the sea asshe ever had, and the neutral merchant has made a note of it and governs himself accordingly. Therefore the traffic in arms, in spite of her pathetic protests, must go on.

So much for the Notes and the Answers, and I pass to the realm of international law.[12]In a recent debate in Parliament a noble Lord suggested that, in view of German disregard of it, we need not be ‘too fastidious’ in our application of its principles.[13]Even at the best of times, before war shook things to their foundations, the layman was disposed to look on it as a thing of shreds and patches. I am sure he would be surprised to hear that the principles are coherent, and that there is a thread of simple common-sense running through all the various doctrines. The fate of the Empire depends on the action which the Government takes on these important questions, its honour on this action being strictly in accordance with the law which the nations have agreed to. I make no apology, therefore, for treading once more the well-beaten track, for I take it that it is the business of the good citizen to know what he is talking about, and in order to help him I shall begin at the very beginning. And the beginning is War.

At the outbreak of war the nations are divided into two classes: those that are fighting and those that are not. To give them their scientific names, they are belligerents and neutrals. With the laws of war I do not concern myself, but only with those principles by which neutrals are supposed to govern themselves in order to avoid being swept into the vortex.

The only means by which this most desirable object can be achieved is by steadfastly bearing in mind the natural consequence of meddling in other people’s frays. It gives rise to the very simple maxim ‘He who joins himself to my enemy makes himself my enemy and may be treated as such.’ For the world’s peace the doctrine ‘He that is not with me is against me’ finds no place in the maxims of nations. Now there is a root-principle of neutrality, and if it is once let go all the subordinate principles will fly off and become isolated bodies careering through intellectual space, and doing an incalculable amount of damage. This principle is, that neutrality is a state appertaining to the Governments of the non-belligerent countries, and to the Governments alone. Azuni says[14]that ‘the state of neutrality is not, nor can be, a new state, but a continuation of a former one, by the Sovereign who has no wish to change it.’ But neutrality has nothing whateverto do with the individual, and all the puzzles which confuse the public mind arise from the fact that the word ‘neutral’ is applied indiscriminately to Governments and to individuals. The importance of appreciating this is manifest, for if it is unsound the German case, in which the contrary doctrine appears and reappears over and over again, is right; if it is sound that case tumbles to pieces. It is the persistence with which the German Foreign Office has dragged the opposite contention in by the heels on every possible occasion which makes it so necessary to insist on the recognition of this principle. The burden of its reply to the United States, the condition on which Germany will abandon its evil under-water practices, is that this principle should be given up, and the neutral trade in arms with its enemies declared illegal. If it could be thought for a moment that the United States was likely to be beguiled into abandoning it, then the peace of the world would indeed be in jeopardy. But, unfortunately for the Germans, the Americans know full well what the principle means, and the place it holds in the international system, for them to give even the slightest hint that this is possible.

What, then, does neutrality mean? That the Government of a non-belligerent State must do nothing to assist either belligerent, by providing him with arms, or ships, or men, or money. It is not difficult to understand why neutrality is not applicable to the individuals of the non-belligerent States. Nations subsist by international commerce,and there is no reason why, because two of them go to war, all their trade with the others should be declared illegal.[15]Therefore we get at once to this axiom, that war does not affect neutral trade with either belligerent, but the merchants in neutral countries are entitled to carry on business with them. And so the neutral merchant makes his first appearance on the scene.

But to adopt the language of the day,Krieg ist Krieg; and if the neutral merchant has rights so also have the belligerents, and the doctrine of contraband of war gives expression to them, though few doctrines have been so loosely put into words. I think I am fairly stating the prevalent and mistaken opinion when I put it thus: that it is a breach of neutrality to tradein contraband, and that it is the duty of a neutral State to prevent its subjects from so trading. The Germans, in insisting on this popular idea, are juggling with the word ‘neutrality,’ and they do so in a way which is almost pathetic; yet their version of what they are pleased to call ‘true neutrality’ is so near to plausibleness that I must be at pains to elaborate the real principle. A belligerent has a perfect right to apply the maxim ‘Who helps my enemy becomes my enemy’ to the neutral merchant. But seeing that he is an unarmed civilian he cannot be made to fight. The remedy against him is therefore confiscation of his goods. The special way in which the merchant can help the enemy is by supplying him with munitions of war and other means of carrying on the fight. In order that there may be no mistake a more particular list of things which help the enemy is made out, called ‘Contraband of War.’ Now the belligerent has no right, much less any power, to prevent the merchant from selling these things to his enemy; but he gives him fair warning that if he sends them by sea cruisers will be on the look-out for his vessels, and they will be detained and searched and the contraband cargo seized. If the merchant turns to his Government and invokes its protection, talking about the ‘freedom of the sea’ and the ‘common highway of the nations,’ he will get for only answer, ‘The threat is justified and I cannot help you. You are assisting the enemy and must take your chance. I cannot prevent you taking that chance, nor can I order you to forbear, for then I shouldbe interfering in favour of the other belligerent, and that would be a breach of neutrality on my part. All I can do for you is to see that you get fair play if you are caught, and proper damages if you are innocent.’ So now we get to the law in its first shape: the neutral merchant is free to carry on his trade with either or both belligerents to any extent, in arms or in anything else; but if he trades in contraband of war he takes the risk of losing his cargo. The justification for the rule can be put in simplest language. The belligerent has obviously no right, merely because he is at war, to order neutral merchants not to carry contraband to the enemy, nor even to expect that they will not. Neither can he insist that the neutral merchant’s Government should intervene on his behalf, and so commit a breach of neutrality towards the other belligerent.

Certain subsidiary questions arise at this point. First, the familiar distinction between absolute and conditional contraband. This follows in direct sequence from what has already been said. The belligerent is not fighting the civil population, but only the enemy Government and its forces. This compels him to interfere with neutral trade in everything that enables that Government to maintain its forces. But how to draw the line between things destined for the civil population and those destined for the forces, for things destined for the civilian may be serviceable to those forces, and may, in fact, be used by them.

The broad principle governing conditional contrabandwas stated by Lord Salisbury in thedictumas to foodstuffs already referred to.

This principle was adhered to by us during the early months of the War, and was expressly referred to as having guided our action in Sir Edward Grey’s interim reply, of the 7th of January, to the American Note. But the War has revolutionised many ideas, and among them those which had led to the adoption of this principle by Great Britain in the face of the opposing contentions of other countries in the past, notably France and Germany. In his final reply to the Note, sent on the 10th of February, Sir Edward Grey frankly stated that ‘in the absence of some certainty that the rule would be respected by both parties to this conflict, we feel great doubt whether it would be regarded as an established principle of international law.’ Further, he pointed out certain new features in the circumstances in which the War was being waged which tended to show that an adherence to the old principle would be an unjustifiable restriction on our power of striking the enemy—(i) the existence of an elaborate machinery for the supply of foodstuffs for the use of the German army from overseas; (ii) the practical disappearance of the distinction between the civil population and the armed forces of Germany; (iii) the power taken by the German Government to requisition food for the use of the army, which rendered it probable that goods imported for civil use would be consumed by the army if military exigencies required it.

I confess that there are many considerationswhich challenge the logic of the distinction between absolute and conditional contraband, and give it more the character of a humanitarian concession. It introduces a new bone of contention between belligerents and neutral traders, and it opens up the grave danger of concealed contraband in cargoes which are themselves innocent: the concealment of copper, for example, in bales of cotton. In view of the more rigorous rule of blockade where the distinction disappears, it seems more in the nature of a preliminary measure in the process of throttling the enemy; the first turn of the screw, and a suggestion of sterner measures which are in store.

It is important to note that the determination of what is contraband, what absolute and what conditional, is left to each belligerent. Seeing that no law is possible on the subject, that agreement has got no further than the unratified Declaration of London,[16]and that it could not be for the enemy to decide, there is no one but the belligerent left. But it rests on a better reason. Each belligerent is master of his own fray; he can direct the attack at his own discretion, and can strike his blows where he pleases; and if we bear in mind what hecoulddo, the declaration that some things shall only be contraband if they are destined for the enemy’s forces is clearly a reservation of strength rather than an expenditureof force. There is no rule which imposes half-measures on any belligerent; he may exert all his strength and destroy or seize all his enemy’s property if he is able; the principle of blockade expressly provides for it; the only thing that is required of him is that, until he proceeds to extremes, he must be careful how he interferes with neutral property.

Another point requires explanation. Of course all enemy ships upon the seas are lawful prize. But it strikes one at once that here is a departure from the principle that you do not make war upon the civil population, for merchant ships are civilian property. The neutral merchant has, however, been looked after, for the Declaration of Paris has proclaimed that ‘neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.’ But in the converse case, it would not seem reasonable that enemy property in neutral ships should escape capture. The Declaration of Paris, however, steps in with the arbitrary rule that ‘the neutral flag covers enemy’s goods, with the exception of contraband of war.’ It cannot be said that this rule has done much to safeguard the ‘freedom of the sea’ for neutral vessels, for there is no doubt that guns consigned to Germany discovered on an American ship on a voyage from Galveston to Pernambuco would be lawfully seized; and as the guns may be seized the vessel may be detained and searched. But practical considerations work in favour of the neutral merchant. Not all the hosts of the AlliedFleets would be sufficient for the stupendous work which would be involved in putting this right into practice; therefore good sense has decreed that the destination of a ship to an enemy port shall be adopted as the practical working factor in its application, at least in the case of conditional contraband. But this has engendered the idea, which certainly is no part of the rule in its naked simplicity, that neutral ships sailing to neutral ports can carry enemy cargoes of contraband with impunity. Enemy destination is supposed alone to afford a presumption that there is contraband for the enemy on board; but if there were any doubt that the idea is erroneous, the words ‘whatever be their destination,’ in a judgment of Lord Stowell’s, to which I shall presently refer, must dispel it.

I have talked of the belligerent right of seizure. But civilised nations, recognising that in the most elementary statement of the case not all neutral cargoes even with an enemy destination are liable to seizure, have realised the necessity of establishing a tribunal by which this question of liability and consequent confiscation can be decided. With the right of some cargoes to escape there came into being at once the duty of withdrawing the decision from the summary process which the sailor would inevitably adopt. The question of liability might be a complicated one of fact: law might be involved: a Court was essential. But as to its constitution there were only three alternatives: enemy judges, obviously impossible;neutral judges, or an international Court, not very practicable; there remained nothing but judges of the belligerent country. Hence the anomaly of the Prize Court sitting in the seizing country’s territory, presided over by judges of that country. An anomaly, because it is contrary to the elementary rule that no man shall be a judge in his own cause; yet the judgment of a Prize Court is a judgmentin rem; it passes property, and is accepted as binding against all the world by the Courts of all other countries. There have been in the past complaints of the decisions; sometimes they have been followed by diplomatic representations. But in these times when—I imagine for the first time in history—a civilised Government has been deliberately charged with having recourse to lying, it surely is a bright spot in the international horizon to think that the system of Prize Courts has produced judges who, as the world has recognised, have been among the greatest.

But the detention of neutral ships at sea, and the seizure of the contraband that they carry to the enemy, can be put much higher than a mere belligerent right; nor does it spring solely from the vindictive principle that the neutral aiding the enemy becomes an enemy; it is based on the supreme right of self-defence. It is the inevitable counterpoise to the right of the neutral merchant to continue trading, even in contraband, in spite of war. The importance of this trading right to the neutral merchant is the measure of the importance of this defensive right to the belligerent.

The right of the neutral merchant was put on the large commercial ground by Mr. Huskisson: ‘Of what use 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?’[17]But it can be put on a still larger ground. Without it the small nations would go to the wall. If there were such a doctrine as Germany now contends for, a great country with unlimited resources could speedily annihilate all the weak nations one after the other. There is no such doctrine as that when war is declared the warring nations are to fight it out with their own resources only. It is not the duty of neutral merchants to keep the ring and let the best man win. Sentiment does not come into the question. The neutral merchant may serve that side which he earnestly desires should win; but the other belligerent hasthe extreme penalty of confiscation in his hands, and sentiment must inevitably fade into the background.

The conclusion of the whole matter is that the two great war doctrines are, the right of the neutral merchant to trade in contraband, and the right of the belligerent nations to seize his cargoes. Combined, they make the simple principle that the neutral merchant may supply contraband to either side subject only to the risk of seizure by the other. ‘The right of the neutral to transport,’ says Kent, ‘and of the hostile Power to seize, are conflicting rights, and neither party can charge the other with a criminal act.’[18]

But the principle of seizure is still in a very crude state; and seeing that all cargoes destined for the enemy are not liable to seizure, and that for practical reasons it is neither possible nor advisable to bring in every cargo for adjudication in the Prize Courts, a supplementary right hasbeen devised, known as the ‘right of search.’ It is the first step in the seizure, and, on the one hand, affords the belligerent an opportunity of letting non-contraband cargo go free; on the other hand, it gives the owner of the cargo an immediate opportunity of proving its innocent character. The right of search is often stated as an independent right, but it is in reality secondary to the right of seizure, and references to it obviously apply equally to the right of seizure. As to its unlimited nature I need do no more than quote the well-known words of Lord Stowell in the case of the Swedish convoy.[19]It is incontrovertible

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