The Note declared that the United States would view with anxious solicitude any such general use of its flag; it would afford no protection to British vessels, it would be a serious and constant menace to the lives and vessels of American citizens, and a measure of responsibility for their loss would be imposed on the Government of Great Britain.
The reply of the British Government was short and to the point. It dwelt on the fact that the Merchant Shipping Act sanctions the use of the British flag by foreign merchantmen in time of war for the purpose of evading the enemy; that instances are on record when United States vessels availed themselves of this facility during the American Civil War, and that, therefore, it would be contrary to fair expectation if now, when the conditions are reversed, the United States and neutral nations were to grudge to British ships liberty to take similar action. ‘The British Government,’ it continued, ‘have no intention of advising their merchant shipping to use foreign flags as a general practice, or to resort to them otherwise than for escaping capture or destruction.’ Finally, the responsibility for the loss of neutral vessels in such circumstances must fall on the nation which had deliberately disregarded the obligations recognised by all civilised nations in connexion with the seizure of merchant ships.
It is clear that the American Note had special regard to the future, and expressed no opinion as to what had occurred in the case of the Lusitania. Now she did not fly the American flag to escape capture, but to escape the probability of being unlawfully sunk by a German submarine; for, in view of what had already happened off Liverpool, it is more than probable that a submarine was in lurking for her; to judge from the German irritation at her escape, it is practically certain. What she did, therefore, was in self-defence, and even unlawful things become lawful when they are done to escape extreme danger. The Note refers to the use of a neutral flag to escape capture, the reply justifies it, and the Merchant Shipping Act sanctions it. But, seeing that capture by the enemy is equivalent to destruction, quite apart from the methods of the new piracy, there can be no doubt that the principle of self-defence covers this case also. Self-defence is a natural law which has been embodied in all legal systems, and Nature has sanctioned it as a special plea. ‘Protective coloration’ is the device by which she defends the weak from the unscrupulous strong; it is ‘mimesis,’ a mimetic change, which Nature not only approves in the case of actually hunted animals, but also and mainly devises for those which are likely to be hunted. So the analogy is complete, and the change of her ‘colours’ by the Lusitania to escape the lurking danger of the submarine stands justified by both natural and human law. I prefer this explanation to the theory of the ruse de guerre.
By a ruse de guerre, or stratagem of war, I understand the adoption of some means of deceiving the enemy in war, some device out of the ordinary course of fighting. The old adage that ‘all is fair in love and war’ is not strictly true, for some stratagems are not unjustifiable in war, and some are. The Emden, when she rigged up a fourth funnel, so making believe she was some other ship, resorted to a legitimate stratagem which had unfortunate results for our Allies’ ships in Penang harbour. The German soldiers who put on our dead men’s uniforms also resort to a stratagem; but we are fastidious in our methods of fighting, and do not admit that this is ‘playing the game’ of war. But, whether legitimate or illegitimate, these are ruses de guerre; and the term is hardly applicable to a stratagem adopted by a non-combatant to avoid an unlawful trap set by the enemy for his destruction.
The First American Note to Great Britain
I pass now to the more serious matter of the Note of friendly protest of the 28th of December, which was an amplification of one already presented on the 7th of November. It opens with the declaration that the present condition of the trade of the United States, resulting from frequent seizures and detentions of cargoes destined to neutral European ports, has become so serious as to require a candid statement of the view of the United States Government that the British policy is an infringement of the rights of its citizens, and denies to neutral commerce the freedom to which it is entitled by the law of nations. An improvement had been confidently awaited on account of the statement of the Foreign Office that the British Government ‘were satisfied with guarantees offered by the Norwegian, Swedish, and Danish Governments as to the non-exportation of contraband goods when consigned to named persons in the territories of those Governments.’ But although nearly five months had passed since the War began, it was a matter of deep regret to find that the British Government
have not materially changed their policy and do not treat less injuriously ships and cargoes passing between neutral ports in the peaceful pursuit of lawful commerce which belligerents should protect rather than interrupt. The greater freedom from detention and seizure which was confidently expected to result from consigning shipments to definite consignees rather than ‘to order’ is still awaited.
The general principle is then laid down that, ‘seeing that peace, and not war, is the normal relation between nations,’
the commerce between countries which are not belligerents should not be interfered with by those at war unless such interference is manifestly an imperative necessity to protect their national safety, and then only to the extent that it is a necessity.
But articles on the list of absolute contraband consigned to neutral countries from America have been seized and detained ‘on the ground that the countries to which they were destined have not prohibited the exportation of such articles.’ Italy had prohibited the export of copper, and shipments to Italian consignees or ‘to order’ cannot be exported or transhipped; copper can only pass through that country if it is in transit to another country. Yet the British Foreign Office had ‘declined to affirm that copper shipments to Italy will not be molested on the high seas.’