With the bearing of the ‘command of the sea’ upon the third phrase of its ‘neutralization’ this article specially concerns itself.
All this and more lies between the extremes of Mr. Norman Angell’s threat; either this, or the United States will take the command of the sea into its own hands. One may reasonably doubt whether this view commends itself to President Wilson; whether it has even entered the minds of the ‘influential backers’ of the demand for an enormously increased American fleet. Yet, if I may say it with profound respect, it is only another manifestation of the fundamental misunderstanding of the law of war which characterises the Protest itself.
Whether it be possible for the same end to be achieved by different means, the one lawful, the other unlawful, is a problem in casuistry which I shall not attempt to solve; but as a rough-and-ready rule of practical life we may take it that when two people seek to achieve equal ends they are equal to one another. Now the offensive Herr Dernburg—I use the term in no offensive sense, for I would not exclude myself from his Kirkwall compliment[29]—desires to forbid the sea to English cruisers in order that American vessels may not be let or hindered when they carry harmless ‘raw material’ to German ports. He asserts that any domination exercised beyond territorial waters which interferes with them ‘is a breach and an infringement of the rights of others.’ The Emden’s raids on our commerce, carefully prepared and charted, ‘if my gossip Report be an honest woman of her word,’ two years before the War, are sufficient to show that this new opinion has sprung from the emergencies of the present moment. And the unoffensive Mr. Norman Angell also desires that the English cruisers should cease their vigil, in order that American vessels may help to complete ‘vast commercial arrangements’ entered into by some ‘Chicago or New York magnate’ with the German Government.
Applying then my rough-and-ready rule, Mr. Norman Angell and Herr Dernburg, desiring to achieve the same end, cannot be on opposite sides of the fray. Mr. Norman Angell has been beguiled by the sad picture which the Germans have drawn of starving Germany. Starvation, alas! is one of the weapons of war. The Germans have made full use of it in the past; and had their plans not miscarried Paris would again have lived on the vermin of the sewers, as it did in 1870. Mr. Norman Angell’s memory does not run to that period; but he lives in a time when what he conceives to be the possible result of British war policy has become the actual policy of the invader of Belgium: almost a whole nation ‘reduced to absolute starvation, including the women and the children,’ by the direct action of the German Government in preventing the distribution of American food. His vision is clouded by the pathos of imaginary pictures; he does not see what is going on before his eyes, and he allows himself to be blinded to the real object of all the German manœuvring diplomacy, to which the ‘Foodstuffs’ cry is but a convenient screen. An embargo on the export of munitions of war from the United States to the Allies Germany will secure if she can, by hook or crook, by fair means or foul, by argument or threat, by cajolery or intimidation, for necessity is driving her. Her one hope of salvation lies in getting the United States to break its neutrality, and the accomplishment of this ignoble task has been confided to the Bernstorffs, the Dernburgs, the Ballins, κ.τ.λ. These passionately exhort the Government of the States to control by domestic legislation its merchants’ commerce with the Allies, because the British Fleet in its right of war is controlling their commerce with Germany. The German Admiralty has substituted piracy for war on the sea; and now, powerless to enforce its war right, it struggles to achieve the same results by the devious process of an American embargo. To enforce their rights of war nations sacrifice the lives of men; Germany to make good her lost rights is willing to sacrifice a friendly State. In furtherance of this, unconsciously I feel sure, Mr. Norman Angell has lent his facile pen, and he threatens us with war with the United States unless we forgo the benefits which the command of the sea has given us. If it were possible to imagine President Wilson to acquiesce by so much as the movement of his little finger, granting to Germany any fraction of the indirect help she so urgently needs, then indeed clouds would gather on the horizon—there is no half-way house between neutrality and alliance with the enemy.[30] But we may rest assured there is no such possibility. Before, therefore, Mr. Norman Angell further develops his theory I would commend to his study those mighty disputations concerning the ‘freedom of the sea’ which were held twenty years ago between the United States and Great Britain, quorum pars parvula fui. We knew what we were quarrelling about. But Germany! She tells the unlistening world that she is fighting for ‘the traditional mare liberum’! What can this parvenu of the high seas know of its traditions? And for the delectation of pacifist ears this programme has been arranged: ‘a free sea,’ which shall mean ‘the cessation of the danger of war and the stopping of world-wars,’ and ‘the sending of troops and war machines into the territory of others or into neutralized ports’ is to be ‘declared a casus belli.’[31] From which it appears that the proposed remedy will hardly cure the disease.
‘It is with no mere idle use of high-sounding phrase that Great Britain once more appears to vindicate the freedom of the sea.’ Thus we spoke in the argument in the Behring Sea Arbitration. And we may continue so to speak with clearest conscience; for a careful scrutiny will show that the principle of the Order in Council is new, if you will, but in legitimate sequence from well-established doctrines, and has sprung from them in an ordered and scientific development. Of the American Protest which criticises it, speaking with all due respect for the learned authors of it, it is, I venture to think, open on its destructive side to this general remark: that it enunciates old doctrines in their popular form without that full examination of the underlying principles which the grave state of the world’s affairs demands. On its constructive side, however, it is interesting and worthy of careful study.
General View of the Main Provision of the Order in Council
Let us get at once a clear view of the position. England by this Order has aimed a very vigorous blow at the heart of her enemy, but the Government of the United States has warned her that she may not do it, not from any humanitarian considerations, but because it would react to the detriment of neutral merchants. It points out that there are some principles of international law, some documents or declarations, which stand in our way. If this be really so, then international law sets the profit of the merchant above the life of nations. The theory of the United States appears to be that the conduct of war is to be governed by the interests of commerce, even if they touch those of the belligerents. The truer theory is, I believe, that commerce, in so far as it touches the interests of the belligerents, is entirely subordinated to the exigencies of war. If the view of the United States is right, then the documents and the declarations have been heedlessly signed and made, and the power of England upon the seas has been recklessly frittered away.
I have endeavoured in the first article to get into sharper relief than popular notions give to it the position in which the neutral merchant stands to a belligerent and to his own Government, and also to recall the real meaning of neutrality. The Order in Council had at that time been issued, but the American Protest had not been delivered. I intimated, however, that it seemed probable that a close examination of fundamental principles would show that the Order was abundantly justified by them. The publication of the Protest confirms me in that view.
And, first, I venture to contest the main doctrines on which the criticism of the Order rests.[32] I deny that a belligerent nation has been conceded ‘the right of visit and search, and the right of capture and condemnation’ of neutral ships engaged in unneutral service or carrying contraband for the enemy. I deny that a belligerent nation has been conceded ‘the right to establish and maintain a blockade of an enemy’s ports and coasts and to capture and condemn any vessel taken in trying to break the blockade.’ On the contrary, I assert that these are belligerent rights which may be asserted and exercised against the neutral merchant whose vessels are engaged in rendering those services to the enemy: that consequently ‘a nation’s sovereignty over its own ships and citizens under its own flag on the high seas’ does suffer ‘diminution in times of war’ to the full extent to which a belligerent exercises those rights: and that to this extent ‘the equality of sovereignty on the high seas’ finds no place in war. And I further contend that the proposition, to the establishment of which all the argument of the Protest tends—that ‘innocent shipments may be freely transported to and from the United States through neutral countries to belligerents’ territory’ without risk of seizure and confiscation—is not true when one of the belligerent Governments has declared its intention of stopping all shipments, and has taken effective steps to enforce that intention. If the proposition were true in these circumstances the Order in Council would be a breach of international law.