But because the ingenuity of the neutral merchant and his confederates has, as it is said, so far greatly baffled the vigilance of the mightiest fleet that ever stood guard upon the sea, the critics of the Government protest that we should fall back on the lesser remedy of declaring cotton contraband, and revoke, abandon, or ignore the more strenuous remedy provided by the Order in Council. It is difficult to appreciate the position these critics take up; it can only be explained by a lack of understanding of the real meaning of the Order. This these articles have endeavoured to do.
But, curiously enough, there is just one point where the combined operation of the laws of contraband and of blockade may increase our power of seizing cotton. It follows from what I have said in the second article with reference to the importance of reducing both laws to a common denomination of language,[52] that the reinforcement of even our ‘long-distance blockade’ by the addition of cotton to the list of absolute contraband will enable us to seize cargoes of cotton by isolated cruisers before the neutral ships which carry them reach the area in which the cordon of cruisers is operating. If this is a valuable power, as to which I am sceptical, it is right that it should be claimed and exercised; and it is one of the powers which result from the new Proclamation. I feel sure that the critics of the Government had not this addition to our powers solely in their minds; they certainly did not so formulate their criticism.
But the action which the critics wanted the Government to take has been taken; and I think the reason may not be far to seek. The American merchant, like his Government, believes that there is much virtue in technical terms. He says ‘put cotton on the list of absolute contraband; I know what that means; then I shall know where I am.’ I pointed out in the first article that the problem of the neutral trader is a very complex one, ‘for each belligerent as a buyer must strive to keep him in a good humour, but as a fighter must do all he can to thwart him.’[53] The cotton-grower of the Southern States prefers to be thwarted in this manner, and the British Government has humoured him. He prefers the risk of confiscation to the possibility of having his cargo returned to him if he is ‘the lawful owner thereof.’ So all is well.
The comments which have appeared since the Proclamation was issued have laid much stress on the deterrent effect it is bound to have on the cotton shippers, because the Order in Council does not provide for confiscation of cargoes of non-contraband, whereas now that cotton is contraband it must be confiscated. Also the complaint has been revived that the Order in Council was loosely enforced, and it is imagined that the declaration of contraband will of itself ensure a stricter supervision of cargoes of cotton at sea. It is difficult to follow either arguments, even on the supposition that this latter criticism is justified. For the machine by which both the Order in Council and the contraband Proclamation must be carried out is the same—the Fleet. The effectiveness of this machine, the efficiency of the Fleet, is obviously the dominating factor of the situation, whether it be governed by the Order or by the Proclamation. The deterrent nature of the fact that confiscation is now inevitable may possibly reduce the number of cargoes of cotton with which the Fleet may have to deal, but the other fact remains, that the Fleet will deal with them whatever may be their number.
There has also been, even in very responsible quarters, some rather confused talk to the effect that the result of the contraband Proclamation is to ‘improve our international legal position.’ If this means anything it implies acquiescence in the American argument that the Order in Council is not warranted by international law. Such an argument, as I have already said, is more than inopportune at the present time; those who use it would, I presume, be pleased to see the Order in Council revoked altogether. I trust, on the other hand, that nothing that I have said will be construed to suggest that the Government in yielding to the clamour of the critics has issued a futile Proclamation. Yet it is impossible to imagine that Ministers have lost faith in the virtue and efficacy of the Order in Council. The latest statement in Parliament, by Lord Robert Cecil, which I have already referred to, shows that they have not. The Proclamation does, as I have shown, strengthen the position in some slight measure; but there is a well-known form of legislation often resorted to ‘for the quieting of doubts,’ which does not give away the situation. Such I believe this Proclamation to be.
But for the sake of the science of international law, in the preservation of which both the British and the American Governments are profoundly interested: for the sake of that cardinal principle that as weapons of war increase in their power of destruction so must the belligerent might and right also increase, and new means must be found for keeping the new manifestations of sea-power within the old principles: for the sake of our duty of loyal belief that the Order in Council has devised those means in most legitimate fashion, let not the critics of the Government, learned or unlearned though they be, lay the flattering unction to their souls that they have won a famous victory.
P.S.—I take this opportunity of referring to the American reply to the Austrian Note which complained that the sale of munitions of war by United States merchants to the Allies was a breach of neutrality on the part of the United States Government. The Note was in the forcible-feeble style. It gave me the impression of having been written to order of the German Government by men who had not much belief in the soundness of their argument. It very clearly showed that necessity ‘knows no law,’ for erroneous doctrine was assuredly never so weakly stated. But it gave President Wilson an occasion of finally disposing of the false, and of asserting the true, principles of neutrality. It disposes also of the notion prevalent in some quarters, to which I referred in the second article, that the President’s ‘sense of fairness’[54] had something to do with our continuing to receive munitions of war from the United States. The reply has not been much noticed, but it deserves transcription as a most masterly statement of law and policy: ‘The principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods for the adjustment of international differences, and, finally, neutrality itself, are opposed to the prohibition by a neutral nation of the exportation of arms and ammunition or other munitions of war to belligerent Powers during the progress of the War.’
I draw special attention to the sentence ‘the national safety of the United States and other nations without great military and naval establishments’; these are the nations, small in their powers of defence, who, as I have pointed out, must go to the wall if the wild dream of neutralizing the sea should ever be allowed to materialise.[55]
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