The ‘Letters of Historicus’—General Position of the Neutral Merchant—Use of Neutral Flags by Merchantmen to Escape Capture or Destruction—First American Note to Great Britain—British Interim Reply—The Complete Reply—First American Note to Germany—German Reply—Evolution of the Doctrines of Contraband of War and Blockade—Meaning of Neutrality—Contraband of War—Conditional Contraband—Declaration of Paris as to Freedom of Neutral Goods and of Enemy Goods under Neutral Flag—Prize Courts—The Conflicting Rights of Neutral Merchants and of Belligerents—The Right and Duty of Search—Doctrine of Continuous Voyages—Embargo—Blockade—The New Policy of the British Government—Foreign Enlistment—Proclamations of Neutrality.
The intellectual barometer stands at ‘Hazy’ on the subject of neutrality, even in this country. In Germany it has ceased to register anything which even pretends to be intelligent. In the United States there are what might aptly be called cyclonic and anti-cyclonic disturbances. If my view as to English knowledge of the subject be questioned, I would ask my readers how often they have of late met in the newspapers the phrase ‘duties of neutrals,’ and what answer they have found to the inevitable query, ‘Which be they?’ Within the last few weeks I read a contribution to The Times from ‘A Legal Correspondent,’ in which these duties were referred to in most bewildering fashion. He said that there existed special bonds between this country and the United States; that both have stringent Foreign Enlistment Acts; that both agree to what are known as the ‘Three Rules’ of the Washington Treaty as to the duties of neutrals, and that both had promised to bring these Rules to the notice of other States. This statement was painfully misleading; the ‘Three Rules’ were agreed to as the basis on which the Alabama arbitration was to be decided, and related solely to the subject known as ‘Foreign Enlistment.’[7] But if by ‘duties of neutrals’ is meant, as I presume to be the case, the duties of neutral Governments, they can be summarised in one great negative—to do nothing, except when they are called on to defend their neutrality against the action of either belligerent, inter alia, in the cases provided for by the Hague Convention of 1907 relating to neutrality. So far-reaching is this universal negative that it includes non-interference with their merchants in their dealings with belligerents.[8] If, however, the term refers to duties of neutral merchants, then it is inapt and misleadingly inaccurate; for the existence of any such general duty as to cease trading, for which the Germans are so strenuously contending, is wholly imaginary.
Fifty years ago another continent was riven with war, and there was much talk of what a neutral might do, and might not do; and there appeared in The Times a series of letters signed ‘Historicus,’ in which, among other things, the elementary principles of neutrality were very strenuously and very lucidly set forth. Very strenuously, for there was a certain M. Hautefeuille who had filled the world—like the Dernburgs of to-day—with much unsound doctrine. Now unsound doctrine was a thing which stirred Mr. Vernon Harcourt to the depths of his soul, and those only who have heard him know what waves of wrath surged up in his brain. He had the art of transferring to paper the billowy language he was wont to use; and as you read you hear the rotund sentences rolling onwards to swamp the frail bark of his adversary. But he had another art: of clear thinking and lucid exposition. In the series of Whewell Lectures which I attended at Cambridge in the year of grace ——, of which I still preserve my notes, he seemed to make plain the whole mystery of Public International Law. New times have produced new teachers of the old heresies; and it is good to turn once more to the pages of the ‘Letters of Historicus,’ for again the neutral nations are invited to ‘upset the whole fabric of international law which the reason of jurists has designed and the usage of nations has built up.’ To adapt his references[9] to Burke and Canning to himself, ‘I would that we had yet amongst us his multitudinous eloquence and his poignant wit to do justice upon this presumptuous sciolism’ of the German Foreign Office. The world, indeed, seems still to need his teaching. From what one hears in the market-place I gather that there is a vague feeling in the air that our case is not quite so good as we should like it to be; that there is a mysterious crevice in our armour-joints through which, if not the German, at least Uncle Sam has pricked us. There is a nebulous ‘something’ about neutrality, especially about ‘neutral duties,’ which seems to preclude accurate thinking; and even the ‘Legal Correspondent’ does not always pierce the haze. So the student, in memory of an hour spent after lecture in his master’s rooms in Neville’s Court, when kindly patient, and so lucidly, he expounded to him the meaning of a difficult decision, will endeavour to weave into a continuous whole the threads of the doctrine which he taught. It is not that people do not know; only that they forget.
The neutral merchant is the centre round which the principal doctrines of international law dealing with neutrality have gathered. It seems strange at first that in time of war the commercial rights of a mere money-making civilian should invariably form the subject of endless discussions; but this civilian really holds a very important position in the waging of war; it could not go on without him. Each belligerent has need of him, and it is essential to each to prevent the other from satisfying that need. To block the enemy’s communications with the neutral merchant is one of the surest ways of ending the war. To this end many ingenious things have been devised, and as many equally ingenious to counteract them; and in this the merchant’s fertile brain has materially assisted. The problem is a 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. As for the neutral merchant himself, he is calmly indifferent to the merits of the fight; nothing pleases him so much as to be ‘Jack of Both Sides.’ He will take all he can get from one side and cry out for more from the other. When the War is over we may muse philosophically on some aspects of the Protest which the United States Government has addressed to Great Britain on behalf of its merchants; for the present, with all its serious issues hanging in the balance, the American Notes require careful study, for they themselves raise an issue as serious as any which the War has raised—whether Great Britain has been true to the principles she has so often preached, or whether the German accusation, or the American suggestion, that she has violated them can be substantiated; whether, when all is over, we shall be able to say proudly that it has been War with Honour.
The Use of Neutral Flags by Merchantmen
Two Notes have been addressed to Great Britain, and it will be convenient to refer at once to the second Note, which deals with the use by our merchantmen of neutral flags. The neutral merchant is directly concerned with this custom of the sea, for he may have cargo on board, and if this means of deceiving the enemy’s warships is declared to be illegal he runs the chance of its being sent to the bottom.
The facts which gave rise to the Note are of the simplest. On the 30th of January two German submarines appeared off Liverpool, and, giving the crews ten minutes to take to the boats, torpedoed and sank some British merchant vessels. On the 6th of February the Lusitania, coming up the Irish Channel at the end of her voyage from New York, hoisted the Stars and Stripes and came safely to harbour. To these simple facts are to be added, according to the German version, that the Admiralty advised the master by wireless to hoist the American flag; or had issued a secret order to merchant ships in general to hoist a neutral flag in the circumstances. Whether these facts are accurate or not is absolutely immaterial; but the Germans have based on them the charge of violation of international law. It should be noted with surprised wonder that the German Admiralty seems to have forgotten that the Emden sailed into Penang harbour flying the Japanese ensign, and that this, added to her other disguises, enabled her to accomplish her raid successfully.[10] The United States Government, having been appealed to by Germany, addressed a Note to Great Britain, to the great jubilation of her adversary; for she had just planned the infamy of her new piracy, and the smart of the thrashing administered to herself was somewhat mitigated by the fact that the other boy got a ‘wigging’ too. The position of the United States is so delicate, her diplomatic officers have achieved so much, her people have done and said so many things that have gone to our hearts, that it is impossible to be querulous at the presentation of the Note; yet, when it is analysed, it seems to go far beyond what was necessary to the occasion, and it has enabled Germany to confuse, in her usual clumsy fashion, the post and the propter in the sequence of events.
The Government of the United States reserved for future consideration the legality and propriety of the deceptive use of the flag of a neutral Power in any case for the purpose of avoiding capture; but pointed out that the occasional use of the flag of a neutral or of an enemy under stress of immediate pursuit, and to deceive an approaching enemy, was
a very different thing from the explicit sanction by a belligerent Government for its merchant ships generally to fly the flag of a neutral Power within certain portions of the high seas which, it is presumed, will be frequented with hostile warships. A formal declaration of such a policy for the general misuse of a neutral’s flag jeopardises the vessels of a neutral visiting those waters in a peculiar degree by raising the presumption that they are of belligerent nationality, regardless of the flag they may carry.