The American Notes to Germany—The Protest to Great Britain against the Order In Council—Mr. Norman Angell’s Plan for the Neutralization of the Sea—His Threat of War with the United States—German Idea of a ‘Free Sea’—General View of the Main Provision of the Order in Council—Application of the Law of Vendor and Purchaser: Contracts F.O.B.—Declaration of Paris: Free Ships make Free Goods—A Suggested Solution of all Difficulties—Effect of the Order in Council—American Acquiescence in a ‘Long-Distance Blockade’—Relation between Contraband of War and Blockade—Sovereignty over Neutral Ships—Withdrawal of National Protection from Ships carrying Contraband of War—Right of Search no Infringement of National Jurisdiction—Doctrine of ‘Continuous Voyages’ and the Order in Council—Reprisals—The Orders in Council of 1807—The American caveat—Criticism of Note in the ‘North American Review’—Continuing Contracts entered into before the War.
The quality of diplomatic courtesy between the United States and Germany is much strained, for the submarine pirates have sunk American ships, and have drowned American citizens bound on their lawful errands on British ships. On the 14th of May, Germany was informed for the second time that she would be held to strict accountability for any infringement of the rights of American citizens, whether intentional or accidental, and in her methods of attack against the trade of her enemies she was called on no longer to disregard ‘those rules of fairness, reason, justice, and humanity, which all modern opinion regards as imperative.’ On the 11th of June, the defence that the Lusitania was carrying contraband was brushed aside as irrelevant to the question of the legality of those methods. The German reply being evasive and justificatory, on the 23rd of July a third warning was given: if the offence should continue unabated the action would be treated as ‘deliberately unfriendly.’ These Notes derive their dignity from their obvious restraint, from the measured insistence of their words, and from the scrupulous exactitude in the statement of the principles they appeal to. No saner judgment was ever pronounced against a criminal, and, though a golden bridge has been offered for retreat, they will stand against Germany as a permanent record of her iniquity.
But a curiously paradoxical situation arises with regard to ourselves. The very virtue of these Notes is bound to react to our prejudice; for other neutrals may too readily assume that those same high qualities are also to be found in the Note of the 30th of March, protesting against the British Order in Council issued as a reply to the German submarine attacks on merchant shipping in the ‘war-zone.’ There is also a minute minority of our own people who have a perverse habit of thinking that ‘after all’ we may be wrong, and they will not fail to apply their favourite doctrine in this case.
In the aftermath of the War, far-off though it be, we can already see one question which will be insistent for solution: what effect will it have had on international law? It is essential, if England is to preserve her high place in the councils of the nations, that the sincerity of her words should not be open to question through any act which could be brought up against her of even doubtful legality. This Protest alleges that there is no doubt as to the illegality of our so-called blockade of Germany. With profound respect, I believe the Protest to be unsound in its premises and inaccurate in its conclusions, and that there is as complete an answer to it as to the previous Notes addressed by the United States Government to this country. But it has put a weapon into the hands of our enemy of which he has not been slow to avail himself; it has given Herr Dernburg a plank to dance on instead of a slack-rope; it has played upon the imagination of Mr. Norman Angell, who has been for so long engaged in shattering the illusions of others, and provided him with an illusion all his own. In the May number of the North American Review he has caught some ideas hitherto floating in the air and shaped them into a new peace-theory which he believes will be acceptable to the American Government, and I presume, to other countries also. He has given it for title ‘The Neutralization of the Sea.’
Mr. Norman Angell’s Plan for the Neutralization of the Sea
Mr. Norman Angell is a serious writer. He has detected the weak points in what is called the ‘arbitrament of war,’ and has formulated his indictment against it in a series of concrete propositions. The wilderness of the world’s foolishness so re-echoed with his words that some thought they saw the wild rose blossoming. Yet, though the wilderness still breeds the thistle, his theories rested on a substratum of fact, and set people thinking when he first spoke to them. But his last excursion into the regions of the Unattainable has no such merit; he has been busy dreaming other men’s dreams. He foresees this contingency, which ‘English opinion has absolutely failed to envisage,’ that at the conclusion of the War America will see to it that ‘sea-law as it stands, and as America has accepted it,’ is ‘changed altogether.’ He says that ‘there is in England not the faintest realisation that the inevitable outcome of the present contraband and blockade difficulties will be an irresistible movement in America, for the neutralization of the high seas, or, failing that, their domination by the American Navy.’ So much of this as relates to England is perfectly true; there has not been ‘a line of discussion concerning it in the Press,’ for the all-sufficient reason that it is the ‘very coinage’ of Mr. Norman Angell’s brain, the ‘bodiless creation’ of his ecstasy. That ‘profound conflict of policy’ which, after unnumbered years, is to end in the transfer of the command of the sea across the Atlantic is not ‘even being discussed in England’; and it is therefore consoling to know that ‘it is probable that very many Americans themselves do not realise clearly how this dispute is developing, and how the United States will be pushed to take a stand for a profound alteration of the entire maritime situation.’ With this the phantasy of the ‘neutralization of the sea’ might be dismissed. It is a dangerous topic to discuss at this time, especially in America, with so uncertain a knowledge of ‘sea-law’ as Mr. Norman Angell displays; for others besides pacifist doctrinaires are making great play with it to the same audience—to wit, our enemies. Yet this advocate of peace threatens us with war if we will not accept his great illusion—war with the United States! And in order to avoid this conflict, ‘which certainly no one who wishes well to the two countries would care to contemplate,’ he demands the sacrifice of every principle on which we found our belief that Right must ultimately become Might. I can only assume that he does not see that the result would be the greater prevalence of the German doctrine that Might is Supreme.
We were once interested by Mr. Norman Angell’s studies in the ‘might have been’: were even ready to agree that as ‘might be’ they were worthy of serious consideration. But, frankly, his countrymen have no wish that England should be the corpus vile on which this new experiment is to be tried. The Platitudinarians rejoiced when he came over to them; but Mr. Norman Angell is too serious a student for such company. Let him then, as other Englishmen who have attacked England have done, recant; I will find him excellent reason. He is not too familiar with the subject on which he has now laid profane hands. He has been struck with the glint of a phrase, but I am sure he does not know what the ‘neutralization of the sea’ really means. It means, first, that the high sea is to be forbidden to men-of-war of any nation whatsoever; secondly, that the high sea shall not be used by neutrals for war purposes—that is, for supplying belligerents with munitions of war: alternatively, that they should supply each belligerent alike without interference from the other; thirdly, that their trade in non-contraband should go on as if there were no war.
The ‘neutralization of the sea’ is therefore a convenient formula which may be substituted for that occult paragraph of the German reply to the American Note of the 12th of February, the meaning of which I have endeavoured to give in my first article: that little lecture to the American trader on the subject of ‘the practice of right,’ and ‘the toleration of wrong.’[27]
The paraphrase of this new formula is more easy. First: wars shall cease upon the high seas; and as ‘men-of-war’ obviously include transports, wars will thenceforward be confined to continents; bellicose islands will never again be allowed to participate. Permanent peace will thus be established in part of the world; and for the rest, seeing that you cannot expect to achieve everything at once, there must be just one more war, in which Germany will reduce Russia to impotence, absorb the small States, and crush France and Italy without the interference of troublesome over-sea soldiers; after which the beatific vision of a permanent Teutonic peace.
Secondly: with regard to so much of the formula as relates to neutrals, the justice of it must become apparent if you introduce as a prelude the tearful appeal so often heard of late from Berlin—‘You pray for peace, and yet you arm our enemies to fight.’ It is unkind to substitute for this—‘You will not let us crush our enemies in our own way’; yet it is its exact equivalent; and reduced to a practical proposition it means this, that when nations go to war they must fight with their own resources, which not even the dreamiest of the Pacifists would assent to, for then those little nations, in whose prosperity Mr. Norman Angell so much believes,[28] would go to the wall. It would give the strong States the power to crush them, picking their quarrel when and how they will. But if you will not agree to this so-simple proposition, then, for goodness’ as well as for profit’s sake, be logical and trade with both belligerents alike; do not let yourselves ‘be influenced in the direction of conscious wilful restriction’ by so trivial a matter as the ‘command of the sea.’ Sea-power on which it rests must be abolished altogether, which would be a great step towards permanent peace.