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 he could do, 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 expenditure of 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 Allied Fleets 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 judgment in 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 has the 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]