The reply deals also with the seizure of foodstuffs, but it is unnecessary, in view of subsequent action taken in regard to them, to refer to this part of the document. It also mentions a somewhat unusual complaint, not included in the American Note, of our own embargo on rubber, imposed in consequence of a new trade in exporting rubber from the United States in suspiciously large quantities to neutral countries, which had sprung up since the war. The complaint is not very intelligible, because it looks at embargo from the wrong point of view. The right point of view is explained later in this article.
The full reply of the British Government was dated the 10th of February. It contained the very important declaration that our action against neutral vessels ‘has been limited to vessels on their way to enemy ports or ports in neutral countries adjacent to the theatre of war, because it is only through such ports that the enemy introduces the supplies which he requires for carrying on the war.’ In other words, the importance of the doctrine of ‘continuous voyages’ at the present time is emphasised; and its necessity is demonstrated by a further review of trade statistics, which led to the inevitable conclusions ‘that not only has the trade of the United States with the neutral countries in Europe been maintained as compared with previous years, but also that a substantial part of this trade was, in fact, trade intended for the enemy countries going through neutral ports by routes to which it was previously unaccustomed.’
But even more important is the opinion deliberately expressed that international law, like every other judge-made law, is a live body of principles which can and must keep abreast of the times. Its rules are not arbitrarily devised as occasions arise, but are based on principles which have developed with the progress of the world. Any apparent changes in the law which Great Britain has introduced are not arbitrary inventions which have in view merely the crushing of Germany, but are justified by well-known principles applied to new conditions. The process of adaptation is no new one. The advent of steam-power had a notable influence on the development of the law, for the facilities introduced by steamers and railways, while they simplified the task of the neutral merchant in contraband, had enormously magnified the difficulties of the belligerent.
The question in issue can be stated in almost primitive fashion. Are the rules which governed the rights of belligerents when there were no railways, to govern them when the transit of contraband over the frontier of a neutral and a belligerent State has been made so easy? The answer is not an absolute negative; it is that the old principles are living principles and are capable of extension to meet the new occasions.
But to explain the reasons for a step which has already been taken and to find sound reasons for a step which has to be taken are two different things. The first requires reasoning power, the second imagination; and I find this in the position boldly taken up and courageously insisted on, that the growth in size of ocean liners has rendered a further amplification of the old rules necessary. They must be brought into port for examination.
The American loves the cut and thrust of argument, and must at once have acknowledged that the reference to the fact that the doctrine of ‘continuous voyages’ originated with the Judges of the United States was not a tu quoque, but a brilliant illustration of the principle of development of the law. It is abundantly clear from every paragraph of this remarkable reply that this doctrine has become the one principle worth fighting for now, for our national safety depends on it. And the American will appreciate the delicacy of the compliment which can find no stronger arguments than those used by the Judges of the United States Prize Courts when they established it.
The earlier American Note of the 7th of November had contended that ‘the belligerent right of visit and search requires that the search should be made on the high seas at the time of the visit, and that the conclusion of the search should rest upon the evidence found on the ship under investigation, and not upon circumstances ascertained from external sources.’ But the major premiss is that the actual destination of the vessel to the neutral port may be merely a cloak for the real destination of the cargo to the enemy; and the citation from the judgment in the case of the Bermuda[11] is a complete answer:
The final destination of the cargo in this particular voyage was left so skilfully open ... that it was not quite easy to prove, with that certainty which American Courts require, the intention, which it seemed plain must have really existed. Thus to prove it required that truth should be collated from a variety of sources, darkened and disguised; from others opened as the cause advanced, and by accident only; from coincidences undesigned, and facts that were circumstantial. Collocations and comparisons, in short, brought largely their collective force in aid of evidence that was more direct.
To introduce the rigid rules of evidence necessary to a common-law action in a question which is not a lawsuit at all, but an inquiry, would obviously cripple the effectiveness of the doctrine of ‘continuous voyages’; the occasions with which that doctrine deals have by force of circumstances become the most important source of supply of those commodities which a belligerent must at all hazards prevent his enemy obtaining. And if we go back to the root-principle, that the whole law and every part of it depend on the right of self-defence, no stronger argument is necessary to justify the principle laid down in this case, nor for the provisions of the Order in Council of the 29th of October, which throw the burden of proof of his innocence on the neutral owner of contraband.