A system of law, though intermittently created as occasion has arisen, must, if it is to be taken as serious law, stand the test of an evolutionary analysis. The doctrines of contraband and blockade cannot stand for a moment if they are based on no principle, if they go no further back than the commentators have carried them.[4] I have endeavoured to show that the principle on which both are based is the same, and is to be found in the Right of War: that both are the inevitable consequences affecting neutral merchants who have any relations with the enemy of the exercise of legitimate belligerent action against him, and that they originate in, and, though varying in the intensity of its action, are both linked with sea-power and the efficiency of its visible agent, the Fleet. That German commerce should have received its death-blow, that neutral merchants should have suffered in consequence, are the natural, the inevitable results of the command of the sea which in fair fighting in times past England has won for herself.
But there has been introduced into the controversy an expression, the mere mention of which seems to send men’s minds dancing with unreason—the ‘Freedom of the Sea.’ Very dexterously, the Germans have substituted for it another expression, the ‘Equality of the Sea.’ In spite of the captivating simplicity of the words, it is used with sinister intent, in the hope to redress the inequality of the hostile Fleets.
If a Fleet is a legitimate weapon of offence and defence for nations whose borders are on the sea, then the fortune of one aspect of war between them must rest with the superior Fleet, and when war does come the imagined equality of the sea, whether for belligerents or for neutrals who cross the track of it, vanishes.
The ‘freedom of the sea’ is a cry for something as inarticulate as the other things that the wild waves are saying. It means no more, no less, than does the freedom of the King’s highway, which is subject to a multitude of other rights often reducing it to nothing. The ingenuous pacifist sees in it the fulfilment of the promise that wars shall cease. Yet if that and all the other fanciful ideas which have gathered round it—the ‘neutralization of the sea,’ for example—come to prevail, wars will indeed cease, but in a way the pacifist least dreams of. Hidden in that imagined ‘freedom,’ and the ‘rules’ which have been suggested to ensure it, lies the power of the Strong to make one final war upon the Weak on land, and the end of it the annihilation of the Small Nations; for it means this, that when they are attacked they must defend themselves without help in munitions of war from neutral merchants across the sea.
The ‘freedom of the sea’ is not even complete in time of peace, for it may not be set up by those who have violated the laws of the nations which border its shores. But when war comes the ‘freedom of the sea’ must give way to the rights of war; and no one dare now deny that to declare war may be a sacred right, to decline the gage of battle an infamy. The only freedom that remains, and even this is curtailed by the right of search, is that of neutral merchants to carry on their trade with one another unmolested, so long as it does not deliberately enmesh itself in the lines and areas of battle. But it must never be forgotten that the United States is not vindicating the simple right of neutral nations to trade with one another untrammelled by belligerent action. It maintains, and all the struggles of its advocacy are devoted to establishing this proposition, that ‘innocent shipments may be freely transported to and from the United States through neutral countries to belligerent territory.’[5] Here, then, is the whole matter ‘bounded in a nut-shell.’ It is admitted that a belligerent may forcibly prevent all goods going from a neutral directly to the enemy: it is admitted that he may also prevent certain specified goods (called ‘contraband of war’) going from a neutral indirectly (that is, through another neutral country) to the enemy. The United States protests that international law ends with these two propositions: that there is no underlying principle linking the two admissions, making them only two illustrations of a larger fact: that there is a chasm between them that can never be bridged, even though not merely the conditions of war, but also the constitution of armies have changed: that international law must stand at the point it reached ten years ago, and a belligerent stand passively by while neutral merchants sustain the enemy with the things which give him life to continue the fight.
The mere statement of the dispute shows that the calm of a High Tribunal of Arbitration is the only atmosphere conducive to its just discussion.
That right of war upon the sea, as well as that pure right of neutral traders upon the sea, the Mistress of the Seas must steadfastly maintain, for she holds them in trust for the nations and may not barter them away. Above all, she must know her own mind as to what that right is. She has spoken with full knowledge, and, as I believe, rightly. It would be a grievous blow to her prestige if she were now to abandon the position she has taken up. I cannot imagine such an abandonment to be even dreamed of.[6]
The scheme of these articles is as follows. In the first, published before the American Protest of the 30th of March was received, I have dealt with the principal points in the early American Notes to Great Britain and Germany, and have traced a process of evolution to which all the principles of contraband and blockade, as we used to know them, do in fact conform. In the second, after combating Mr. Norman Angell’s project for the neutralization of the sea, I have shown how this process of evolution warrants, by a legitimate process of development, the practice laid down by the Order in Council. In the third, I have applied these principles to the discussion to which the Government yielded when it put cotton on the list of contraband.
Two questions lie altogether outside the scope of the articles. First, the policy which, prior to the issue of the Order, refrained from making cotton contraband. Secondly, the policy which guides executive action in carrying out the Order. They deal simply with the Order as it stands, not with the method of its enforcement.