The discussion of narrow rules hinders the clear vision of the things which are; and of these the all-important one is that, call it by what name you please, a belligerent will, whenever he has the power, take the necessary steps to cut off all supplies from the enemy; and he will cut them off whether they are going by direct route or indirectly through a neutral port. The old conditions under which that power was exercised have, it is agreed, passed away; the power, which we call the right, remains. The Government of the United States contends, on behalf of its merchants, that they have the right to evade and therefore to nullify that power by supplying the enemy, indirectly and without risk, with those cargoes which they cannot safely supply him with directly. Surely the proposition is impossible on the face of it. To call such cargoes ‘innocent’ is to beg the question. The introduction of the atmosphere and terms of the criminal law has done more to fog the public comprehension of this branch of international law than any inherent complexity of the problems with which it deals. Yet here it will serve to bring home the inaccuracy of the American contention to the public mind; for seizure and condemnation become a sort of retributive penalty for the neutral merchant’s attempt to evade what, to continue the language of law, the belligerent has the right to command, by darkening and disguising his real intention. Judged even by this imperfect standard, the American Protest has cut away the ground from its own contention. The doctrine of ‘continuous voyages’ was accepted because of its logical simplicity; and this simplicity shows that it must extend and reinforce every exhibition of sea-power by a belligerent against his enemy; and its logic prevents the neutral merchant from setting up any right, more especially any right which is not only in conflict with the belligerent right, but is based on deceit and needs a cloak to hide its real meaning. The right he claims is to send to the enemy those supplies which the belligerent has declared his intention and taken effective steps to deprive him of. If the neutral merchant had such a right it would enable him to diminish the force of the belligerent blow, to heal the stroke of the wound.
Reprisals
There has been much talk of retaliation. The Order in Council has adopted the formula of the first of the Orders in Council of 1807,[47] that the action of the enemy has given to His Majesty the ‘unquestionable right of retaliation,’ and it has been assumed, too readily as I venture to think, that this is an admission that our action to-day falls outside the principles sanctioned by international law. The American newspapers have found apt expression of their criticism in the ancient adage ‘Two wrongs do not make a right.’ And in the Protest of the Government this sentence occurs:
If the course pursued by the present enemies of Great Britain should prove to be in fact tainted by illegality and disregard of the principles of war sanctioned by enlightened nations, it cannot be supposed, and the Government does not for a moment suppose, that His Majesty’s Government would wish the same taint to attach to their own actions, or would cite such illegal acts as in any sense or degree a justification for similar practices on their part in so far as they affect neutral rights.
A comparison of the measures taken by the Order in Council with those ordered by the German Admiralty can hardly have been seriously intended; yet to many this sentence seemed to be straining diplomatic proprieties to their utmost limit. But any irritation it may have caused has been blotted out by the stern words of disapproval used by the President in his recent Notes to Germany.
But the reference to retaliation cannot, as it seems to me, be legitimately construed into an admission of the illegality of the measures decreed by the Order in Council. The utmost that can be said of it is that it admits they are exceptional. The Order of 1807 declared that ‘no vessel shall be permitted to trade from one port to another, both French,’ and it was enforced by seizure and confiscation of neutral vessels which disregarded it. That and the other Orders which countered Napoleon’s paper blockade of the English coasts have been severely criticised; but it is impossible to apply the same criticism to an Order which omits the confiscation, and on the contrary, expressly provides for the return of both ship and cargo to the neutral merchant. That the measures are exceptional may be freely admitted, and to that extent they may be called reprisals; but exceptional measures, even of reprisal, are not necessarily illegal measures.
The American Caveat
The strangest part of the correspondence remains to be noted. The United States Government, in July, lodged a caveat, intimating that it ‘will not recognise the validity of Prize Court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens under international law.’ The Government has thus indicated the retaliatory measures it proposes to take against Great Britain; yet it has failed to see that the veiled irony of the paragraph just quoted from the Protest applies in its entirety to this reprisal. In so far as it relates to executive action, it proposes to accomplish the impossible. Prize Court judgments are in rem; they pass property, and if possession has followed not even the United States Government can undo it, for there would not be even a tenth point on which it could seize; and if possession has not followed, Government action would be brought up short by the law. Further, in so far as it relates to judicial action, the intention appears to be to give an instruction to the American Courts how in the circumstances they are to deal with the decisions of the English Prize Courts. Thus the constitutional principle of the independence of the Judiciary from the Executive is put in jeopardy, and the Government would again be brought up short by the law. And in so far as it relates to the law itself, the proposed action professes to decide favourably to the present contention of the United States a difficult and complicated question of law—whether judgments based on a municipal law which, it is alleged, is a violation of international law are not entitled to recognition by foreign Courts, more especially if they are judgments in rem. Such a decision does not fall within the province of the Executive, but only of the Courts. So, as it was said aforetime in the British argument in the Behring Sea Arbitration, to all and every part of the different protests which have been made against our action by the United States Government, there is, with profound respect, ‘but one answer—the Law.’
In an Editorial Note in the May number of the North American Review, dealing with the relations between Great Britain and the United States after the detention of the Wilhelmina, this sentence occurs:
If we should once admit the right of the Allies to forbid our sending foodstuffs to Germany, how could we deny the justice of Germany’s insistence that we should apply the same principle to England? And what would happen to the English people then? Surely, too, our British friends must realise that only the strictest adherence to international law makes it possible for us to furnish to the Allies the vast quantities of war munitions without which they could not hope to win.