I have come to the threshold of a subject of gravest importance, the new policy of the British Government adopted in answer to the ‘war-zone’ declaration of Germany, and I stop. To devote to it merely the end of an already long article would not be treating it with the consideration which it deserves, and which the question demands. Moreover, it would not be expedient for an ex-official Englishman to discuss the subject controversially at present. It is sufficient that the measure has been adopted after full and mature consideration by the Government, that the question is political as well as legal, and for us it must be taken to be within the legitimate powers of a belligerent. Presently, to judge from what has already happened, there certainly will be any amount of nonsense talked and written about it; already the term ‘paper-blockade’ has come in handily for the making of a paragraph, and some bold spirit has hit upon a brand-new term, ‘long-distance blockade.’ Also there has been some not very wise talk about ‘Two wrongs not making a right.’ I would suggest to those who feel irresistibly impelled to discuss the question that they should omit the word ‘blockade,’ for, as we have seen, it is a pernicketty term, and all sorts of legal niceties spring up in its train. I have endeavoured to show that ‘blockade’ is the extreme manifestation of the force known as sea-power against the enemy, that sea-power lies at the root of the authority which has been given to the series of principles governing belligerent interference with neutral trade, and that these principles are not a mere adventitious set of rules drawn up at odd times as wars at sea occasioned them. The principles and the rules have resulted from the play of natural forces, exerted by the belligerents on the one side, by the neutral merchant on the other. The rules are not even a compromise. The clash of forces has thrown off alternating sparks, rules recognising now the right of the one, now the right of the other. But in the supreme display of sea-power known as ‘blockade’ we find that the right of the belligerent does, as is inevitable, take the upper hand, and the right of the neutral disappears. And there are two French maxims worthy of note just now: ‘Qui veut les fins veut les moyens,’ and ‘Qui peut plus peut moins.’
P.S.—I must briefly refer to two questions which appear at first sight to conflict with the principles advanced in this article—Foreign Enlistment, and the King’s Proclamations of Neutrality.
Before agreeing with the United States as to the ‘Three Rules’ which, as I have pointed out,[24] deal solely with ‘foreign enlistment,’ the British Government declared that they could not assent to the contention that those rules were a statement of principles of international law in force at the time when the Alabama claims arose. This is expressly stated in Article 6 of the Treaty of Washington. ‘Historicus,’ in one of his Letters,[25] cites some American authorities which bear out this view. Further, he explains the true inwardness of the Foreign Enlistment Act:—
The Enlistment Act is directed, not against the animus vendendi, but against the animus belligerendi.
It prohibits warlike enterprise, but it does not interfere with commercial adventure. A subject of the Crown may sell a ship of war, as he may sell a musket, to either belligerent with impunity; nay, he may even despatch it for sale to the belligerent port. But he may not take part in the overt act of making war upon a people with whom his Sovereign is at peace. The purview of the Foreign Enlistment Act is to prohibit a breach of allegiance on the part of the subject against his own Sovereign, not to prevent transactions in contraband with the belligerent. Its object is to prohibit private war, and not to restrain private commerce.
It is only when it has become the subject of agreement between two or more States that ‘foreign enlistment’ assumes an international as well as a municipal character. I presume that this municipal character has not been lost by the inclusion of the duty to prevent the fitting out or arming of vessels in Article 8 of the Hague Convention, No. 13, of 1907, relating to the duties of Neutral Powers in Maritime War.
As to the Proclamations of Neutrality, so much as recites and reinforces the Foreign Enlistment Act need not trouble us; the King’s loving subjects are exhorted to comply therewith. The rest of the Proclamations amounts to no more than a warning to subjects not to do ‘any acts in derogation of their duty as subjects of a neutral Power in a war between other Powers, or in violation or contravention of the law of nations in that behalf’; but, as ‘Historicus’ says,[26] ‘The nature of the penalty is pointed out with equal clearness and correctness—viz. the withdrawal of the King’s protection from the contraband on its road to the enemy, and an abandonment of the subject to the operation of belligerent rights.’ What those belligerent rights are I have endeavoured to explain.
II
THE NEUTRAL MERCHANT AND THE ‘FREEDOM OF THE SEA’
[August 1915]