Great Britain's Sea Policy / A Reply to an American Critic, reprinted from 'The Atlantic Monthly'

by Gilbert Murray

V.

So much for general principles; let us now consider whether in detailed practice the claims of the British Government or the practice of the British courts have been particularly reprehensible. The two questions are of course distinct; and my own impression, given merely for what it may be worth, is that the decisions of the courts will bear the severest scrutiny, while the claims of the Government are closely analogous to the claims advanced by all governments in a similar situation. They will compare not unfavourably, for instance, with the claims of the United States in the Civil War. It should also be noticed that Great Britain does not act alone; and as compared with the precedents laid down by various nations in previous wars, a policy agreed upon by six of the most important maritime powers in the world has at least a slightly higher claim to validity than one laid down by a single power. Mr. Bullard in one extremely high-principled passage explains that the United States could not in conscience join the Allies in this war because that would be fighting in order "to make British convenience the rule of the seas." But here his moral feelings have evidently intoxicated him. It is obvious that, if the United States had cared to come in,—which I am not for a moment urging,—the law of the seas would, at the very worst, have been interpreted, not for the convenience of Great Britain alone but for the convenience of Great Britain, France, Italy, Russia, Portugal, Japan and the United States.

But let us consider the particular enormities which England is supposed to have committed. And let us be clear about the issue. I do not contend that we have never stretched in our favour the vague body of unwritten rules, based on conflicting precedents and unenforced by normal sanctions, which is called international law. Every belligerent in every war hitherto has done so; and that not always from national selfishness alone. International law, apart from the fundamental misfortune of having at present no sanction behind it, suffers from two great weaknesses. It is not for the most part framed on clear principles, and certainly has not been built up in times of peace by "calm thought and discussion"; it has mostly been built up by precedents and protests and compromises based on immediate pressure. In the second place, the body of precedents is very scanty compared with the importance of the interests involved. It is not like the English common law, so rich in recorded precedents that almost any conceivable new complication between litigant interests can be solved by analogy with some past judgment. Every new war gives birth to new problems and complications which are not covered by any precedents in previous wars, and have to be settled by very imperfect analogies or by the violent stretching of some previous rule. But the present war differs from all its predecessors to a quite unusual degree, both because of its own vast scale and the new methods of warfare it has introduced, and because the whole structure of the world has been transformed since the last great body of available precedents. What would be the condition of private commercial law at the present day if it had nothing to go upon but one or two precedents in 1870, a few more from the time of the American Civil War, and a good number between 1790 and 1815?

Our first great offence is our extension of the doctrine of "continuous voyage." This doctrine was first applied on a large scale by the Government of the United States during the Civil War; it was an extension of previous belligerent rights, was discussed by Great Britain and other powers, and finally accepted as legitimate. The point is a simple one. By the old rule a belligerent has a right to prevent certain ships and cargoes from going to the enemy; he has no right to prevent their going to a neutral port. But suppose he finds them going to a neutral port from which the cargoes are to be taken straight on by a protected road to the enemy? What is the rule to be? The United States argued that the goods were really on a "continuous voyage" or a process of "continuous transportation" to the enemy, and could therefore be treated just as if they were going direct to the enemy port. This argument was generally accepted by publicists, notably by Bluntschli. It was accepted by the International Commission which sat in pursuance to the treaty made at Washington on May 8, 1871; and it was acted upon in the South African War, when stores shipped to Delagoa Bay and clearly intended for Pretoria were treated as contraband.

In the present war the extension became inevitably far wider. Germany's own ports are closed; she proceeds to import whatever she needs by way of Copenhagen or the Dutch ports. We assert the doctrine of continuous voyage and treat all contraband goods shipped for Copenhagen but obviously intended for German use just as if they were shipped for Hamburg. Let me first illustrate this point, and then deal with a difficulty that arises.

The cases of four ships, the Kim, Alfred Nobel, Björnstjerne Björnsen, and Friedland, were considered between July and September, 1915, when judgment was given on all four together. The cargoes had been seized and there were numerous claims against the British Government for compensation. Some of these were allowed by the High Court on various grounds, but most were rejected. The main facts were as follows. Certain exporters, mostly American, sent to Copenhagen enormous quantities of lard and "fat backs," which were in great demand in Germany. They contain glycerine, which is the basis of various explosives. There is no beast so charged with potential explosive as a fat hog. More lard was thus sent to Copenhagen in three weeks than had entered the whole of Denmark in the previous eight years. There are differences of detail in the various transactions, but one company, for instance, consigned its goods to an anonymous agent in Copenhagen, who had no address beyond a hotel where he happened to be staying, and who proved to be their permanent representative in Hamburg. The company a little later received a telegram from this Hamburg agent saying, "Don't ship lard Copenhagen, export prohibited" (i.e. export to Germany was prohibited by the Danish Government). In other cases there were misleading descriptions o£ goods and deceptive consignments. There was not the remotest possibility of question that the fat backs and lard were in the main meant for German explosives. Our High Court gave the benefit of the doubt to those claimants whose case seemed really doubtful.

So far can anyone blame us? Can any reasonable person argue that Germany ought, by international law, to be free to import all the explosives she liked, under the nose of the Allied fleets, by simply making them land at Copenhagen instead of Hamburg?

But now difficulties begin. I will not spend time on the curious argument that continuous voyage, though it applies to absolute contraband, should not apply to conditional contraband. A compromise on these lines had been proposed in the Declaration of London, but is obviously illogical. Neither will I discuss the point, dear to technical lawyers, that the doctrine of continuous voyage, though sound for contraband, perhaps does not apply to blockade, on the ground that the cargo may continue its journey by land and a blockade by land is not a blockade but a siege. Such an objection, if correct, can hardly be said to "apply the essence of international law to present-day questions."

The real difficulties of the situation lay in sifting the goods intended for Germany from the bona fide imports of Denmark and the other border countries. Denmark, Holland, Switzerland, Norway, Sweden all had their normal needs. They used butter and dynamite and rubber and copper and lard and fat backs themselves, and we had no right, and certainly no wish, to interfere with them. What were we to do? Were we to examine every ship and sift the whole of her cargo? That would involve immense labour, infinite waste of time, and the certainty of many mistakes. We discussed with the various parties concerned all kinds of arrangements by which our legitimate suppression of supplies to the enemy might be carried out with the minimum of inconvenience to neutrals. The exact arrangements vary in different countries, and none can be entirely without friction, though of course our natural object is to reduce friction to a minimum. I only wish I could make Mr. Bullard realize the enormous amount of work and ingenuity which our officials devote to the task of preventing incidental injustices and appeasing injured susceptibilities.