In reply to the German submarine menace the British Government resorted, by way of Reprisals, to a method of strangling the enemy’s commerce which, on the one hand, was wider in its scope than any list of contraband, and, on the other, was free from the ‘legal niceties’ which surround a declaration of blockade. Neutral merchants declared that it hit them hard, and the Government of the United States protested that it exceeded the limits which international law has placed to the right of a belligerent to interfere with neutral trade. The British Government replied justifying its action, and there, one would imagine, the matter should have rested for arbitration after the War. But the Government of the United States has continued its protests, has indeed just renewed them in most vigorous language, desiring to deflect us, in the interests of its commerce, from a course which must materially assist in crushing our enemy.
It is not customary, except in one clear case, for a neutral Government to insist that a belligerent should adopt, in medias res, its views of a question which does not involve any issue of peace or war: to press on him, in medium bellum, a modification of his belligerent action which might cost him the victory. The clear case of exception is when, philosophy at fault, there are not two sides to the question, but one only, and that testified to by flagrant breaches of the laws of humanity and war. Everything else is fair fighting; and for a neutral Government, because its own commercial interests are affected, to insist on the adoption of its view of a debateable point, to persist that it is not debateable, to take action, in itself a violation of international law,[1] savours of unneutral service. In the absence of suggestion of anything but perfect good faith, in the face of much demonstrated care of the interests of its citizens, the abandonment by a neutral Government of the dispassionate attitude which neutrality requires not merely heartens the enemy but must result in rendering him material assistance.
The United States Government, by placing England and Germany on the same plane of protest,—the ‘lawless conduct’ of the belligerents—has, as it seems to me, lost the true measure of national right and wrong on which humanity must rest its laws if civilisation is to continue. In redressing wrongs the law has never placed injuries to life and property on the same level. A neutral Government whose citizens have suffered in life by the action of one belligerent, in fortune, however grievously, by the action of the other, must yet be guided as to the manner of its protests by the relative degree of the offences.
Now, assuming England’s high-sea policy to be illegal, two things appear to me clear: First, that we are entitled to claim from the United States a consideration of the circumstances which led to the commission of the offence of which we are accused, in order to see whether, as Reprisals, it was not justified. The Protest of the 2nd of April expressly refuses this consideration; it proceeds on the assumption that Reprisals can never be resorted to against an enemy, if the interests of a neutral trader are affected: Secondly, that, quite apart from the Arbitration Treaty, we are justified in insisting on a reference to arbitration after the War as the complete present answer to the charge, for this all-sufficient reason, that on calm review it may appear that our action is warranted by international law. There is no indication in the last paragraph of the new Protest that this view is acquiesced in by the United States.
Reduced, therefore, to its simplest expression, the position taken up by the United States is this: Our trade is of greater importance than your victory. Admitting the hypothesis to the full that a neutral country has no interest in the result of a war, is unconcerned which side wins, yet I do not believe that this attitude finds any warrant in the principles on which international law is based. But there is another and very practical reason in favour of my second contention. Too strenuous a protest is apt to make men look a little below the surface of mere words, to turn their attention curiously to trade statistics. They have been dexterously handled in the British answers. A neutral Government is not the best judge of its merchants’ claims; inevitably it becomes their advocate, and in the tangle of discussion is apt to identify itself with commercial transactions which, it is common knowledge, often need the closest investigation. The true position of a neutral Government, the almost complete severance from its protection of merchants who deal, however indirectly, with a belligerent, demands, I venture with great deference to assert, an altogether different attitude from that taken by the United States Government.
International law has of late been the subject of much loose talk, by the German especially; and some colour has been lent to his assertions by the nature of the American Protests to Great Britain. International law does not profess to govern the conduct of belligerents between themselves, but only the laws of war. Except in so far as these have been incorporated in conventions, except in so far as the principles of humanity have been reduced into concrete words and so have become laws binding the consenting nations when they fight, it is not the province of international law to mitigate the blows of war.[2] A neutral Government is not concerned with the methods of warfare adopted by a belligerent until they ape the barbarian. Then, even in the absence of convention, it is entitled to protest in the name of our common humanity. Conventions to which both belligerents and the neutral are parties entitle it to support its protest by diplomatic action. But, convention or no convention, more strenuous action is justified by the application of elementary legal principles when its citizens, pursuing their normal avocations, are injured.[3] International law, properly understood, governs the relations of belligerents with neutrals. Its sanctions are not belligerent action, nor any action against the alleged offender, which may even indirectly benefit the enemy. Arbitration after the War, and compensation, are the only remedies when neutral property has been injured. Then, and only then, can the principles of international law be calmly discussed; then, and only then, can any new departure by a belligerent be tested by a reference to fundamental principles. The reason is obvious. International law is a progressive science; it has not yet pronounced its last word on the relations between belligerency and neutrality. A neutral Government is not entitled to assume that it alone is the judge of what that last word will be.
These fundamental principles have been lost sight of in the Protests of the United States to Great Britain. Yet there never was a case in which calm discussion was more necessary, for we have come to a point when the question is definitely raised whether international law is to stand still where the last war left it, or whether its principles are sufficiently elastic to allow of their adaptation to modern developments of the machinery of war. I say deliberately that this calm discussion must result in the completest justification of the Order in Council; if it does not, the doom of international law is certain.
But the discussion which has arisen round the Order in Council has one peculiar feature. It is, I suppose, one of the blessings resulting from freedom of speech that our own people should criticise the action of their Government, even when the country is engaged in a conflict which must be fought out to the bitter end. To so much of the world as lies beyond the shadow of the clouds of war, that little fragment of it which is still capable of calm thinking, this curious spectacle has been presented, that to the passionate assertions of the Central Powers, to the dispassionate threats of the United States, there has been added the angry criticism of our own people, in which the press and correspondents, of high and low degree of learning, have joined without remorse. I have looked in vain for one defender of the faith.
Assuredly American dialectic needed no such heartening; the insistence that the American view of international law is alone worthy to be received needed no such support as it has had from our own people. It is true that some of them have been inspired by the British desire that, whate’er betide, England must fight fair. But the end which the angry criticism had in view, and professes to have achieved, was not this at all; it was that the Government should take other steps to accomplish what had already been accomplished by the Order in Council, should decline on a range of lower action, and a narrower line of legal thought. The new Protest, in paragraph 19, does not fail to make the point. Whatever it may be worth, the distinguished chemists, foremost among the critics, are responsible for furnishing the United States with the argument.
The demand for action, so strenuously expressed, during the Cotton-Contraband discussion, entirely ignored what the Government had already done. There may have been cause for criticism as to the effectiveness of executive action. I do not profess to know; but whether this were so or not, it was not to be remedied, as it was attempted to be remedied, by an attack on the validity of the Order in Council. It was said that many lawyers are agreed that it was invalid. I have ventured to present the other side for public consideration.