This question also arises very directly under the Order in Council, for the first clause provides that the goods discharged from a neutral vessel seized on its voyage to a German port, other than contraband of war, shall, if they are not requisitioned for the use of His Majesty, ‘be restored by order of the Court, upon such terms as the Court may in the circumstances deem to be just, to the person entitled thereto.’ Now, if the property in the cargo has by law passed to an enemy purchaser certain questions as to the making of the order would, I presume, arise, which for obvious reasons I do not discuss. But it is quite certain that the American vendor could not appear and make the claim on behalf of such a purchaser; equally certain that the United States Government would have no locus standi. The position under the Order in Council is the same as would arise in normal circumstances if, for example, the question before a Prize Court were as to the ‘effectiveness’ of a blockade. The neutral owner of the ship would argue the case on his own behalf, but not on behalf of an enemy owner of the cargo. As, therefore, the United States Government could not argue the legal case on behalf of an enemy purchaser, and as enemy purchasers are the persons specially cared for by this rule of the Declaration of Paris, it is difficult to see how it can argue the question diplomatically. But, not being altogether inexperienced in diplomacy, it has limited its protest to the case of its neutral merchants.[36] Then, with great deference, the invocation of the Declaration of Paris is irrelevant, for the whole point of the clause is the freedom of the goods and not the freedom of the ship; and the question of the freedom of the ship cannot be raised, because the exception of contraband of war from the rule carries with it a forced submission to the belligerent right of search. And, further, the question whether the Order in Council is an illegal extension of the law of blockade is not affected by the Declaration, but must be decided on other grounds.
But ‘quick returns make rich merchants,’ whether they result from small profits or large. And in war-time the neutral merchant, being a mere man of commerce, appears to be quite ready to ‘pay for the boundless gain’ which the sale of munitions gives him by taking the ‘boundless risk’ of seizure and condemnation, keeping the property in his cargoes while they are on the high seas. Should disaster follow, there is always ‘the Government’ to fall back on; and if only it can be persuaded to wave the banner of ‘neutral rights’ with sufficient dexterity, the chances are in favour of compensation. Now, if all neutral merchants would take Reason for their guide the Declaration of Paris would reveal hitherto unsuspected virtues. Let me commend the following brief articles to the consideration of the diplomatic professors at the next Hague Conference: First—‘For the future avoidance of tortuous discussions so common in the past, the law of contraband, and so much of the law of blockade as affects neutral merchants, are hereby abolished, and all contracts for the sale of all goods whatsoever made between neutral and belligerent merchants shall for all purposes be deemed to be contracts f.o.b.’ Secondly—‘For the greater peace of the world, and the prevention of those financial difficulties hitherto so commonly resulting to private individuals from war, it is agreed that “free ships make free goods”; so only that such free ships, whatever be their cargoes, whatever be their destination, may be taken by either belligerent, without undue show of force or unnecessary use of explosives, into his nearest port, there to abide the decision of a Prize Court whether they be goods designed for the use of the enemy forces; and, if it be shown to the satisfaction of the Court that they be not so designed, then they shall be declared to be “free goods,” and if the person entitled thereto be a neutral they shall be delivered up to him on such conditions as the Court shall think just; but if he be an enemy, other than the enemy Government, then they shall be held until the conclusion of peace, when they shall be delivered up.’
Is this a scheme straight from the Councils of Utopia? I wonder! Perhaps for the present it may be left with the judicial formula ‘I should like to hear the point argued.’ But this is certain, that if contracts with belligerents were made with the same business caution as contracts in peace-time, all the clamour about the ‘rights of neutral merchants’ would die down, for they would have none which need protection, and Notes of friendly remonstrance and dexterously worded Protests would be unnecessary. But we live in an age of great unreason; and the law of contraband and all that part of the law of blockade which affects neutral merchants have been the inevitable result. The Declaration of Paris might have got rid of many difficulties with a little more study of actual facts, but it has not; and so, in spite of good intention, we must wrestle, and I propose now to wrestle, with the problems it has left unsolved.
The Effect of the Order in Council
The essential condition of blockade, as hitherto understood, is that the blockading squadron must be in the immediate offing of the blockaded port. We have placed our cruiser cordon at a considerable distance from the German coast. And here, to the general, is the stumbling-block in our way; to the American, is the sign of our backsliding. Yet, curiously enough, if we had declared a blockade, any question which might have arisen as to its validity owing to the position of the cordon is set at rest by the Protest itself.
The rules of international law can only preserve their vitality if they keep pace with the progress of science; if they do not, they must pass into the limbo of forgotten things. Hence the necessity for a clear discernment between essential principle and unessential detail. In the first article I pointed out that this discernment was singularly lacking in the early protests of the United States Government. The details of our doings on the high seas were criticised as not being in conformity with action which tradition justified; our all-sufficient answer was that they were justified by the principles on which the traditional action was based. Now although, as I think, in this last Protest the American Government has judged what we have done by the narrow formulas of a bygone age, when it comes to treat of ‘blockade’ it frankly abandons them; it literally leaps forward, and brushing them aside shows us that we might have taken other measures of belligerent discipline which would have reacted far more seriously against the neutral merchant than those embodied in the Order. The American Government believes—it is, when untroubled by the complainings of its merchants, far too profound a student not to believe—that the law of blockade greatly needs rewriting. Rules which were adapted to Nelson’s frigates can have little or no application to the battle-cruisers of to-day. But they were the outcome of a principle, and that principle remains. The American Government agrees that for a blockade the cordon of ships in the offing is no longer practicable in the face of an enemy ‘possessing the means and opportunity to make an effective defence by the use of submarines, mines, and aircraft,’ and is therefore no longer to be insisted on. It believes that a ‘long-distance blockade’ is now inevitable. The importance of this admission cannot be exaggerated. It might, I should have thought, be contended that a ‘blockade’ cannot be effective if the enemy possesses sufficient means of offence—in other words, has the present means of destroying its effectiveness. It can never be sufficiently insisted on that ‘blockade’ has, in addition to its realities, a technical and highly artificial side. Under the conditions of warfare existing at the time the rules were evolved, the visible sign of its effectiveness was the presence of the blockading ships in the offing; that was the fact from which the danger to merchant ships trying to run in to the blockaded coast became evident. But if, whether by submarines, mines, or aircraft, this danger ceases to be evident, if it can be actually eliminated, if by the offensive protection of destroyers or cruisers there is an evident danger to the blockading squadron, it would seem to follow that both the real and the artificial effectiveness of that squadron would be destroyed. A blockade liable to be seriously questioned, the blockading ships to be annihilated, by an opposing squadron, seems to involve a contradiction in terms.[37] But all this is top-hamper of curious argument, and must go by the board when modern fleets take up their war-stations. The enforcement of a ‘long-distance blockade’ is recognised by the American Protest as being one of their modern duties. But for what purpose? For that extreme exhibition of force which the command of the sea enables one of the belligerents to display in order to strangle the life out of the enemy. That is the principle of blockade—the exercise of sea-power to stop all supplies from going to the enemy, because he has that power; and the Protest admits that this power may now be exercised in a wider area than in days gone by: exercised against the enemy, and therefore exercised against the neutral merchant, whose chances of getting even those things to the enemy which had, before its exercise, been allowed to pass as non-contraband are correspondingly diminished. Let it be noted at once in italics that this admission comes from a Government which is the most powerful protester against infringements of what it holds to be the rights of neutral merchants.
The learned student detects here what appears to be an obvious flaw in the argument. He has been taught that ‘a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy,’ and that ‘the blockading forces must not bar access to neutral ports or coasts.’ The first and eighteenth articles of the Declaration of London have thus summarised the practice. The Government of the United States has not forgotten those elementary maxims; but it will not let them interfere with the development of its theory of the ‘long-distance blockade.’ The principle on which they are based can well be preserved: ‘If the necessities of the case should seem to render it imperative that the cordon of blockading vessels be extended across the approaches to any neighbouring neutral port or country, it would seem clear that it would still be practicable to comply with the well-recognised and reasonable prohibition of international law against the blockading of neutral ports by according free admission and exit to all lawful traffic with neutral ports through the blockading cordon.’
Very frankly, I have my doubts as to the soundness of the American contention. When this time of warfare is overpast and only its echoes remain, when another Conference shall assemble at the Hague to endeavour to read its lessons more surely than its predecessors had learnt those of previous wars, I doubt whether this new doctrine of blockade will find much favour; for if it is accepted as an ‘effective blockade’ the artificial side of the law must also be accepted, and a temporary withdrawal on account of stress of weather must be declared not to raise it.[38] But of this I have no doubt, that the principle on which blockade rests will always be recognised, must always be recognised because it is a fact—that a belligerent will, and therefore, as we are used to say, ‘may,’ resort to the final strangling process whenever he has the power, because he has the power; of this no arbitrary rules can deprive him. I believe that when things come to be weighed in the balance, when Time’s just sentence is pronounced, it will be that the new Order in Council indicates the proper method by which a belligerent may, in view of the advance in the methods of naval warfare, now exercise that strenuous and strangling pressure upon the enemy which in old days he was entitled to do by means of a technical blockade, and that in the way it deals with the neutral merchant it has found the correct solution of that part of the problem.
A great point is also made by the United States Government that the Order in Council is invalid because, if it is to be considered as a blockade, it discriminates against the United States and is not enforced against those countries which, owing to their contiguity to Germany, are inside the cruiser cordon. The principle on which this complaint is based is thus given in Article 5 of the Declaration of London:—‘A blockade must be applied impartially to the ships of all nations.’ This principle is an integral part of the old system of blockade, under which access to neutral ports or coasts may not be barred by the blockading forces (Article 18 of the Declaration). But it is manifest that directly the principle of the ‘long-distance blockade’ is admitted the access to neutral ports must be interfered with; and the Protest expressly recognises the necessity of admitting this principle. Moreover, it would seem that Article 5 of the Declaration applies to an intentional discrimination between the ships of different countries by the blockading belligerent. It is clear that the United States Government does not interpret the article to be, from reasons of geography, an impediment to the new form of blockade which it has expressly approved.