A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy’s Government or armed forces. It 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. It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral service, and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of equality of sovereignty on the high seas as between belligerents and nations not engaged in war.
If the rights of the neutral merchant are no greater than I have stated them in the first article, and he acts at his own peril and is entirely independent of his own Government, and if the rights of the belligerents are as large as I have there stated them, then it follows that there can be no question of ‘concession’ by the neutral merchant’s Government, in regard to either contraband or blockade, but only an assertion of belligerent right,[40] and all questions as to the sovereignty of that Government over its merchants’ ships disappear. When the neutral merchant is carrying contraband, or when he is blockade-running, he deliberately runs his risk, and therefore cannot claim the protection of his flag.
I think I am not overstating the case when I say that the doctrine on which the United States Government rests its case against us is the exact opposite of this. The prominent position which it holds in the Protest shows that it is regarded as the key-stone of the argument, and that if that key-stone is withdrawn the whole argument must fall to pieces. At the risk of repetition I shall quote again a passage from ‘Historicus,’ referred to in the post-script to the first article, in which he examines the terms of the British proclamations of neutrality. Using his own language, ‘the vital importance of this matter to the great issues’ which have arisen between the United States and Great Britain, ‘must be my excuse.... The interests of peace demand that there should be no doubt on this question.’ In these proclamations, he says, the nature of the consequence, commonly called a penalty, of trading in contraband of war ‘is pointed out with equal clearness and correctness—viz. the withdrawal of the Queen’s protection from the contraband on its road to the enemy, and an abandonment of the subject to the operation of belligerent rights.’[41] And again, ‘when the neutral Sovereign has withdrawn from his subjects engaged in such a trade the protection of his flag, he has discharged the whole duty of neutrality.’[42] To withdraw protection from the merchant when he sets out on his risky adventure, to abandon him during his adventuring to the exercise of sea-power by a belligerent which it is admitted he must exercise because he is at war, is inconsistent with any notion of concession. A neutral vessel carrying contraband is in no better case than if she wore no flag. The fact of the contraband being on board withdraws her from her national protection.
Further, the laws of the United States (which may be taken as typical of neutral countries), ‘do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war ... on board their private ships for transportation.’[43] It is impossible, therefore, to say that the neutral Government—except only when an embargo has been declared—exercises jurisdiction over such private ships, for the national law creates no offence which could give jurisdiction. Therefore it is clear that the neutral vessel by carrying contraband or running blockade puts herself deliberately, and with the acquiescence of her own Government, at the mercy of the other belligerent, and submits to the exercise of belligerent rights.[44]
The right of search might be looked on as a concession, or an infringement of jurisdiction, in the case of ships not carrying contraband. Yet even this does not bear analysis; for, as ‘Historicus’ points out, ‘when a trade in contraband is notoriously and extensively carried on, it exposes the innocent as well as the guilty to suspicion and search, and this is precisely why the Queen in her proclamation of neutrality exhorts her subjects to abstain from such a trade.’[45] The proclamation in fact admits that this search of all vessels on suspicion is an integral and inevitable part of the right of search. It is not a concession, but only the logical extension of the belligerent right to capture contraband on neutral vessels, and to take all steps necessary to attain that end. It is a part of the belligerent right. This question does not arise in connexion with blockade, for there there is no search, and all things become contraband of war.
The Doctrine of ‘Continuous Voyages’ and the Order in Council
But although I have been obliged to devote great space to these preliminary subjects, the point of the Protest is still to come. The condition attached by the United States to its theory of the ‘long-distance blockade’ is that free admission and exit must be accorded ‘to all lawful traffic with neutral ports through the blockading cordon.’ ‘Lawful traffic,’ it is explained, ‘would of course include all outward-bound traffic from the neutral country, and all inward-bound traffic to the neutral country except contraband in transit to the enemy.’ This must be read with a sentence which occurs earlier in the Protest:—
It is confidently assumed that His Majesty’s Government will not deny at once [i.e. presumably, ‘will at once admit’] that it is a rule sanctioned by general practice that, even though a blockade should exist and the doctrine of contraband as to blockaded territory be rigidly enforced, innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory without being subject to the penalties of contraband traffic or breach of blockade, much less to detention, requisition, or confiscation.
At last we have the real issue. Assume everything in our favour: that our blockading cruisers are rightly standing far out to sea; that we should be justified in condemning the cargoes seized instead of returning them to the persons lawfully entitled thereto: the United States denies that its own particular doctrine of ‘continuous voyages’ can apply to a ‘long-distance blockade.’ And here undoubtedly the books seem to be in its favour, for the rule they give, embodied in Article 19 of the Declaration of London, is shortly this: the doctrine of ‘continuous voyages’ does not apply to a blockade. This is the logical consequence of the principle to which I have already referred; that the blockading forces must not bar access to neutral ports, because the doctrine of ‘continuous voyages’ expressly deals with cargoes on vessels bound for neutral ports. But it would seem to follow that with the disappearance of the offing from the definition of ‘blockade,’ and the consequent legitimate interference with access to neutral ports, the application of the doctrine of ‘continuous voyages’ must follow as a matter of course. The fact is that the United States Government has not fully counted the cost of its own admission. As I have already shown, once the theory of the ‘long-distance blockade’ is admitted the principle of non-discrimination, a legal nicety appurtenant to the old blockade, goes by the board, because geography compels an involuntary discrimination against neutral countries which are outside the cordon; so it is clear that this other principle of non-application of the doctrine of ‘continuous voyages’ to blockade must also go by the board, because it is the result of principles specially applicable to the old blockade.
The doctrine of ‘continuous voyages’ holds no precious mystery; it never meant more than this: that what the neutral trader cannot do directly without running the risk of seizure and condemnation he cannot do indirectly without running that risk. And whereas, as has been shown, the right to blockade the enemy is in principle no more than the right indefinitely to extend the list of contraband of war against the neutral trader, this must apply equally whether cargoes are going directly or indirectly to the enemy.[46]