Francis Taylor Piggott

“ 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. ”

“ This Government takes it for granted that there can be no question what those rights are. A nation’s sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited. And that sovereignty suffers no diminution in times of war except in so far as the practice and consent of civilised nations have limited it by the recognition of certain now clearly determined rights which it is conceded may be exercised by nations which are at war. ”

“ In view of what remains to be said, it is of great importance to appreciate that the incarnation of sea-power, blockade, which cuts the enemy off absolutely from the outer world, lies at one end of the scale of what one belligerent may do to the other, and the seizure of contraband on a neutral ship going to an enemy port, which cuts the enemy off but partially, lies at the other end. ”

“ These passionately exhort the Government of the States to control by domestic legislation its merchants’ commerce with the Allies, because the British Fleet in its right of war is controlling their commerce with Germany. The German Admiralty has substituted piracy for war on the sea; and now, powerless to enforce its war right, it struggles to achieve the same results by the devious process of an American embargo. To enforce their rights of war nations sacrifice the lives of men; Germany to make good her lost rights is willing to sacrifice a friendly State. ”

“ We have the misfortune to live in days when, in the name of liberalism, philanthropy, and civilisation, we 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, and to rear upon its ruins the trumpery edifice of a shallow caprice. ”

“ On the contrary it seems, for a hundred years, to have successfully blinded men by its technical conditions to the fact that the so-called right to declare a blockade is no more than a declaration of an intention by a belligerent to stop all supplies from going to the enemy, and stopping them. Is it not abundantly clear that that intention cannot be nullified by the cleverness of the neutral merchant in ‘darkening and disguising’ the fact that they are going to the enemy? ”

“ And again, ‘when the neutral Sovereign has withdrawn from his subjects engaged in such a trade the protection of his flag, he has discharged the whole duty of neutrality.’ [42] To withdraw protection from the merchant when he sets out on his risky adventure, to abandon him during his adventuring to the exercise of sea-power by a belligerent which it is admitted he must exercise because he is at war, is inconsistent with any notion of concession. A neutral vessel carrying contraband is in no better case than if she wore no flag. ”

“ You allow yourselves rather ‘to be influenced in the direction of conscious wilful restriction’ (in other words, you submit to having your cargoes seized by Great Britain) . Of course you have the right to take no steps to protect your legitimate trade with Germany, and you take none (in other words, you refuse to resist the seizures of your cargoes by force) ; that is ‘the toleration of wrong.’ And so you cease to trade with Germany. But you have also a perfect right to cease trading in contraband (especially in arms) with Great Britain. Why don’t you? ”

“ The Meaning of Neutrality
At the outbreak of war the nations are divided into two classes: those that are fighting and those that are not. To give them their scientific names, they are belligerents and neutrals. With the laws of war I do not concern myself, but only with those principles by which neutrals are supposed to govern themselves in order to avoid being swept into the vortex. ”

“ 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. ”

“ But there is another and very practical reason in favour of my second contention. Too strenuous a protest is apt to make men look a little below the surface of mere words, to turn their attention curiously to trade statistics. They have been dexterously handled in the British answers. A neutral Government is not the best judge of its merchants’ claims; inevitably it becomes their advocate, and in the tangle of discussion is apt to identify itself with commercial transactions which, it is common knowledge, often need the closest investigation. ”

“ The Germans, in insisting on this popular idea, are juggling with the word ‘neutrality,’ and they do so in a way which is almost pathetic; yet their version of what they are pleased to call ‘true neutrality’ is so near to plausibleness that I must be at pains to elaborate the real principle. A belligerent has a perfect right to apply the maxim ‘Who helps my enemy becomes my enemy’ to the neutral merchant. But seeing that he is an unarmed civilian he cannot be made to fight. The remedy against him is therefore confiscation of his goods. ”

“ The special way in which the merchant can help the enemy is by supplying him with munitions of war and other means of carrying on the fight. In order that there may be no mistake a more particular list of things which help the enemy is made out, called ‘Contraband of War.’ Now the belligerent has no right, much less any power, to prevent the merchant from selling these things to his enemy; but he gives him fair warning that if he sends them by sea cruisers will be on the look-out for his vessels, and they will be detained and searched and the contraband cargo seized. ”

“ I presume, however, that if a great maritime Power were at war with a State which had only a miniature fleet, a blockade of its coasts would be the speediest and, therefore, the most humane way of bringing it to a conclusion. Certainly there is no rule or custom which prevents a Power at war from putting forth its full strength at once. ”

“ 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. ”

“ Criticism, based on learning or otherwise, of action taken by the Government against the enemy is out of place in time of war. The fact that such action affects neutral merchants injuriously does not justify criticism, for whatever weight it may have, by so much it adds to the difficulties, already immense, of temperate discussion with neutral Governments; by so much it heartens the enemy who seeks per nefas to render the discussion intemperate. ”

“ It gives rise to the very simple maxim ‘He who joins himself to my enemy makes himself my enemy and may be treated as such.’ For the world’s peace the doctrine ‘He that is not with me is against me’ finds no place in the maxims of nations. Now there is a root-principle of neutrality, and if it is once let go all the subordinate principles will fly off and become isolated bodies careering through intellectual space, and doing an incalculable amount of damage. ”

“ 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. ”

“ I have endeavoured to show that ‘blockade’ is the extreme manifestation of the force known as sea-power against the enemy, that sea-power lies at the root of the authority which has been given to the series of principles governing belligerent interference with neutral trade, and that these principles are not a mere adventitious set of rules drawn up at odd times as wars at sea occasioned them. The principles and the rules have resulted from the play of natural forces, exerted by the belligerents on the one side, by the neutral merchant on the other. The rules are not even a compromise. ”

“ 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. ”

“ In the absence of suggestion of anything but perfect good faith, in the face of much demonstrated care of the interests of its citizens, the abandonment by a neutral Government of the dispassionate attitude which neutrality requires not merely heartens the enemy but must result in rendering him material assistance. ”

“ Now it is obvious that if the neutral merchant is wise in his generation he will, having in view the risks ahead of him, secure payment for his goods and get rid of them ‘f.o.b.’ Then all those troublesome questions of seizure by belligerent cruisers and condemnation by Prize Courts concern him no longer. The goods become enemy cargoes consigned to one of the belligerents, the vendor has got his money, and they may go to the bottom of the deep blue sea, or into the factories of the other belligerent, for all he cares. ”

“ The right of the neutral merchant was put on the large commercial ground by Mr. Huskisson: ‘Of what use would be our skill in building ships, manufacturing arms, and preparing instruments of war, if equally to sell them to all belligerents were a breach of neutrality?’ [17] But it can be put on a still larger ground. Without it the small nations would go to the wall. If there were such a doctrine as Germany now contends for, a great country with unlimited resources could speedily annihilate all the weak nations one after the other. ”

“ The effect of war on commerce generally must be judged by its results on commerce as a whole; there must be a general balance-sheet of United States trade in which the profits of some merchants must be set against the losses of others. Is it quite certain that American commerce as a whole has not derived much benefit from the War rather than suffered serious loss? ”

“ If the merchant turns to his Government and invokes its protection, talking about the ‘freedom of the sea’ and the ‘common highway of the nations,’ he will get for only answer, ‘The threat is justified and I cannot help you. You are assisting the enemy and must take your chance. ”

“ I deny that a belligerent nation has been conceded ‘the right of visit and search, and the right of capture and condemnation’ of neutral ships engaged in unneutral service or carrying contraband for the enemy. ”

“ Each belligerent is master of his own fray; he can direct the attack at his own discretion, and can strike his blows where he pleases; and if we bear in mind what he could do, the declaration that some things shall only be contraband if they are destined for the enemy’s forces is clearly a reservation of strength rather than an expenditure [Pg 32] of force. There is no rule which imposes half-measures on any belligerent; he may exert all his strength and destroy or seize all his enemy’s property if he is able; the principle of blockade expressly provides for it ”

“ Interference with trade is the inevitable consequence of war; the more strenuously sea-power is exercised the greater the interference, and the command of the sea inevitably makes the interference one-sided. ”

“ On the 14th of May, Germany was informed for the second time that she would be held to strict accountability for any infringement of the rights of American citizens, whether intentional or accidental, and in her methods of attack against the trade of her enemies she was called on no longer to disregard [Pg 50] ‘those rules of fairness, reason, justice, and humanity, which all modern opinion regards as imperative.’ On the 11th of June, the defence that the Lusitania was carrying contraband was brushed aside as irrelevant to the question of the legality of those methods. ”

“ As it stands it is not true. It has not interfered with the right of search because contraband of war is excepted, and the fundamental argument that you cannot seize if you cannot search, ‘whatever be the ships, whatever be the cargoes, whatever be their destination,’ [35] still holds good. Nor has it interfered with or curtailed the rights incident to blockade; then the doctrine of the Declaration vanishes, for there [Pg 68] are no ‘free ships’ by which the enemy’s goods may be made free, all goods on board being liable to seizure. ”

“ The laws of the United States do not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war or soldiers on board their private ships for transportation; and although in so doing the individual citizen exposes his property to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government. ”

“ So we get to this result: that when there is a cordon of cruisers the belligerent may seize anything, but when there are only isolated ships he may only seize contraband of war.
This test ceases to be rudimentary when we introduce another factor common to the two subjects—effectiveness. That the belligerent’s naval dispositions must be capable of doing what he proposes to do—in other words, must be effective to that end—is no less a feature of the law of contraband than it is of blockade. ”

“ The great friendliness of its tone cannot but be grateful to us; yet in this short sentence all the fallacies and misconceptions of the real nature of the neutral merchant’s position are concentrated. I have endeavoured to show that we have claimed to exercise a right which a fuller examination of admitted principles shows to be entirely warranted, that the only thing which stands in the way of the prompt admission of its legality is a popular conception of belligerent rights which unduly confines them within limits which have proved themselves to be impossible in modern conditions of war. ”

“ But it strikes one at once that here is a departure from the principle that you do not make war upon the civil population, for merchant ships are civilian property. The neutral merchant has, however, been looked after, for the Declaration of Paris has proclaimed that ‘neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.’ But in the converse case, it would not seem reasonable that enemy property in neutral ships should escape capture. ”

“ 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. ”

“ 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. ”