The great friendliness of its tone cannot but be grateful to us; yet in this short sentence all the fallacies and misconceptions of the real nature of the neutral merchant’s position are concentrated. I have endeavoured to show that we have claimed to exercise a right which a fuller examination of admitted principles shows to be entirely warranted, that the only thing which stands in the way of the prompt admission of its legality is a popular conception of belligerent rights which unduly confines them within limits which have proved themselves to be impossible in modern conditions of war. Law once was the handmaid of commerce: she has long since become its mistress. But what, for want of a better name we call international law is still in a state of servitude. If its doctrines are to be treated as intelligible they must be considered as a continuous development springing from, and as the inevitable consequence of, the first cause, that two nations are at war. Then War becomes the key-note, subdominant, dominant, leading note, every note of the scale of action throughout the world, and the neutral merchant cannot pitch the tune as it may best suit his interests.
Is then the justification for the new procedure of the Order in Council an ultimate reference to Might is Right? Have I, following far behind the United States Government in the strenuousness of the law as I have formulated it, found also a justification for the German who relies on Might without troubling to assert the Right? Surely not. I have striven to base the whole law and every part of the law as it affects the neutral merchant on the plain fact that all exercise of might against the enemy, so long as it comes within the laws of humanity and the rules of war, is justifiable, and the omission of it mere folly, and that it is not limited by considerations of time and space; and on this still plainer fact that the exercise of might against the enemy engenders ‘right’ against such neutral merchants as do, of their own free will and with eyes open, bring themselves within the scope of it.
P.S.—I have dealt with the subject on the supposition that all contracts are made after the declaration of war. But much foreign trade is carried on by ‘long-distance’ contracts, and neutral merchants who have entered into continuing contracts before the War would seem to demand special attention, for their eyes were not open, and the risk of seizure by a belligerent has caught them awares. Speaking generally, it is here that the consideration shown to the neutral merchant by Great Britain may find full scope for action. But I admit quite frankly that so much of my argument as is personal to the neutral merchant does not apply to this category. On the other hand, the law of contraband, with its adjunct the doctrine of ‘continuous voyages,’ and the law of blockade, as they have been understood in the past, do not exempt them from the rigours of their operation. Yet the fact remains that the new development of the law does impose upon them greater risks than they ran heretofore, and a protest specially devoted to their hard case would, I imagine, if it were limited to contracts relating to non-contraband and to contracts not made with the enemy Government, receive careful consideration.
III
COTTON AS CONTRABAND OF WAR
[September 1915]
Cotton proclaimed Contraband of War—Public Demand for the Proclamation—The answer to the Critics of the Government—‘Continuous voyages’ and the Order in Council—Possible combination of Contraband and Blockade—American reply to Austrian Note.
Raw cotton has been proclaimed contraband of war.[48] I may therefore fill in a blank space in what I have written in the previous articles on the law of contraband of war and the law of blockade. It was obviously impossible while the matter was, as it were, sub judice, to point the moral of the doctrine advanced in those articles—which I believe to be most sound doctrine—that ‘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,’[49] by a reference to the ‘cotton question.’ But I am free to do so now.
Public Demand for Cotton to be made Contraband of War
I must confess that the movement, of which the Proclamation is the outcome, in its later stages has filled me with amazement; more especially the way in which, the object attained, the announcement of its issue has been received. A sigh of relief has gone up: ‘At last!’ it is said, ‘the Government has given way, and the step has been taken which should have been taken at the beginning of the War.’ There is a gratified assumption that those who have fought the good fight have triumphed over a stubborn lot of procrastinating and incompetent Ministers. Some even suggested, when the decision was announced, that a wicked Government might, after all, only make cotton conditional contraband, for was it not a Government prone to subterfuge?