FOOTNOTES:
[1] The caveat of the United States Government, published in The Times, 24th July, 1915. This action is considered in the second article, at [p. 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 their existence.
[4] See the [footnote on p. 95].
[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 of Commons, 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 the Rights and 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 the Alabama has 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 the Emden has 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 the Daily 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, cited Letters 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 seizure in 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, cited Letters of Historicus, p. 92.
[23] From a speech of Lord Grenville, cited Letters 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 of The 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 issue must be understood, or we shall find ourselves in a blind alley. The case must be put as strongly as I have put it. The Washington correspondent of The 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 Times correspondent 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, quoted ante, p. 48.
[42] Ibid. p. 136.
[43] President Pierce, cited Letters 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 the Lusitania was 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 the Quarterly 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.