Great Britain"s Sea Policy.
by Gilbert Murray.
I.
An article in the _Atlantic Monthly_ for October by Mr. Arthur Bullard has set me thinking. It was hard to cla.s.sify. It was not exactly pro-German. Most of its general sentiments were unexceptionable. It did not seem to be written in bad faith. Yet it was full of sneers and accusations against Great Britain which almost any candid reader, who knew the facts, must see to be unfair. I did not know what to make of Mr. Bullard till at last there came across my mind an old description of a certain type, the second-best type, of legendary Scotch minister: "In doctrine not vara ootstanding, but a Deevil on the moralities!"
Mr. Bullard"s general doctrine is fair enough. There have been two types of foreign policy in Great Britain, one typified, if you like, by Lord North or Castlereagh or Disraeli, a type which concentrated on its country"s interests and accepted the ordinary diplomatic traditions of old-world Europe; the other typified by Fox, Gladstone, Campbell-Bannerman, Bryce, which set before itself an ideal of righteousness and even of unselfishness in international politics. Both parties made their mistakes; but on the whole the Liberal movement in British foreign policy is generally felt to point in the right direction, and its record forms certainly a glorious page in the general history of civilization. Mr. Bullard, speaking as an enlightened American, is prepared to befriend, or at least to praise, Great Britain if she walks in Liberal paths, but intends to denounce her if she follows after Lord North. For example: he denounces the policy of the Boer War, but he praises warmly the settlement which followed it in 1906 under the guidance of Campbell-Bannerman, Asquith, and Sir Edward Grey.
"The granting of self-government to the defeated Boers will always rank as one of the finest achievements in political history." This is all sound Liberalism, and I accept every word of it.
There is nothing peculiar, then, about Mr. Bullard"s doctrine; it is only when he applies it that one discovers his true "deevilishness on the moralities." His method is to ask at once more than human nature can be expected to give, and then pour out a whole commination service of anathemas when his demands are not complied with. He begins, as it were, by saying that all he expects of Mr. X---- in order to love him is common honesty and truthfulness: we all agree and are edified. Then it appears that Mr. X---- once said he was out when he was really at home and busy. The scoundrel! A convicted liar, a man who has used the G.o.d-given privilege of speech for the darkening of knowledge! How can Mr. Bullard possibly be friends with such a man?
To take one small but significant point first. Mr. Bullard, like most people, sees the need of continuity in foreign policy, and the great objections to a system in which a new government, or even a new influence at court, may upset a nation"s course. But he does not see that such continuity implies some sort of compromise. A continuous foreign policy in a country governed alternately by Foxites and Northites is possible only if both parties abate their extreme pretensions. And Mr. Bullard, if I read him aright, expects it to be continuous Fox. As a matter of fact, we have had lately a continuous foreign policy in Great Britain, because Grey, while moving always as best he could toward arbitration, equity, and a "cordial understanding"
with all powers who would agree to it, was felt also to be keenly alive to his duties as the steward of a great inheritance.
But let me begin, as an Englishman, by seeing what Mr. Bullard thinks of us. We have apparently started "a wholesale repudiation of legal restraints." We have "decided that there is to be no sea law."
Consequently we "alienated neutral sympathy more gradually, but more surely than the Germans." And this alienation, we are led to suppose, is not mainly because of any selfish annoyance on the part of neutrals whose interests are crossed; it is just their high-minded disapproval of wickedness. They are all just as deevilish on the moralities as Mr.
Bullard is. Naturally, however, they dislike our "brusque denial that nations with smaller navies have any voice in defining the law." "The Sea-Lords have decided what they would like to do, and His Majesty"s Privy Council has announced that that is the law." In English opinion and action "Might makes Right"--this phrase is constantly repeated. We are always "hitting below the belt." And lastly and most explicitly, "The sc.r.a.p of paper on which Great Britain had promised fair play at sea is torn up!"
I leave out certain pa.s.sing accusations of hypocrisy and proceed to examine the grounds for this invective.
II.
"The sc.r.a.p of paper on which Great Britain had promised fair play at sea is torn up." By the "sc.r.a.p of paper" Mr. Bullard means the Declaration of London; and he knows perfectly well that the Declaration of London was never pa.s.sed into law, never accepted either by Great Britain or by any other nation. It is simply untrue to say that we promised to observe the Declaration, or that that doc.u.ment has in any way been violated, since it never was law. Mr. Bullard himself gives most of the facts; so it is apparently just for fun, or in the joy of rhetoric, that he writes such nonsense as this.
The Declaration of London was an attempt to codify and improve the traditional rules of warfare at sea, which have always been very fluctuating and uncertain. It was due largely to Sir Edward Grey. He summoned the chief maritime nations to a conference on the subject in December, 1908; the conference sat for less than three months, and in February, 1909, made a report which was embodied in the Declaration of London. It was greatly discussed and eventually rejected in the British Parliament. It was not, I believe, even proposed anywhere else. As a matter of fact, the Declaration did not fully satisfy anyone. It was certainly a move in the right direction, but there were two large objections to it. First, many international lawyers--Professor Holland was one of them--considered that it had been drawn too hastily and was not a satisfactory legal code. Secondly, its desirability or undesirability depended partly on certain large political problems which were obscure in 1909. They are anything but obscure now.
To take one point only--the one that specially affected Great Britain.
We were then in the midst of our long negotiations with Germany for a reduction of armaments and a cessation of naval rivalry. The Liberal policy was, in general, to conciliate Germany by every possible concession that could be made without fatally weakening ourselves or betraying the rest of Europe. For example, we deliberately kept our army very small, to prove that we intended no aggression. On the other hand, we could not give up our naval superiority because we are an island power; and, if we were once defeated at sea and blockaded, we could all be starved to death or submission in a few weeks. The Germans, on the other hand, objected to our naval superiority on a number of vague or inadmissible grounds (e.g. that "the German eagle was lame of one wing so long as her fleet was not as powerful among other fleets as her army among other armies"), and on one that had some shadow of reason. They objected to having their very large mercantile marine at the mercy of Great Britain in case of war. Consequently it was worth our while, if we could thereby avoid war and secure good relations with Germany, both to abandon the right of prize and, in general, to cut down the rights of a power commanding the seas in such matters as blockade and contraband.
(When I say "rights," I mean practices claimed as rights by ourselves and others when in command of the sea during war, though often disputed or denied by other powers, or by the same powers in a different situation.)
That is, we, as the power commanding the seas, were arranging to give up certain traditional advantages for the sake of getting a better code of sea-law universally recognized, and in particular for the sake of ensuring the good will of Germany. What happened? In the first place the proposed code turned out to be unsatisfactory, and was not adopted by any single nation. In the second place, instead of responding to our overtures of good will, Germany sprang suddenly at the throat of Belgium and France and drove us into war. And Mr. Bullard coolly a.s.sumes that we ought to put in practice against ourselves, in war, the code which no nation had adopted and which had been meant as a concession to avoid war! And not only that. I can conceive a sort of visionary, like Edward Carpenter, arguing that such an angelic example would have softened the heart of all nations and made them hasten--I will not say to help us, but at least to write us some most flattering obituary notices. But Mr.
Bullard takes quite another line. He thinks we are thieves and scoundrels and tearers up of treaties, because we did not penalize ourselves!
What we did was to announce at the beginning of the war, as a guide to other nations, that, though we did not of course accept it as a code, we should in general and with some deductions follow the lines of the Declaration. This seems to Mr. Bullard worse than nothing: it seems to me about the best thing that could be done in the circ.u.mstances.
III.
But here Mr. Bullard has a very cunning point to make. It has been made also by Professor Liszt. He knows and admits that the Declaration was never ratified and had no legal force. But he points out that, both in inviting the other nations to the conference and in recommending the Declaration when it had been framed, authoritative persons explained that the purpose of the whole proceeding was "not to legislate but to codify." "We obtained recognition of the fact," says Lord Desart, "that, as a body, these rules do amount practically to a statement of what is the essence of the law of nations."
Consequently, argues Mr. Bullard, to repudiate the Declaration, even if it was never ratified, is to repudiate the essence of the law of nations.
A clever piece of trick argument. What is the answer to it?
(1) A very simple point. Mr. Bullard, following Professor Liszt, does not give the whole of Lord Desart"s sentence, but stops in the middle of a phrase, where there is not even a comma! The whole phrase is, "amount practically to a statement of what is the essence of the law of nations properly applicable to the questions at issue under present-day conditions of international commerce and warfare." That is, (_a_) it is admitted that the existing rules do not cover the questions at issue under present-day conditions; and therefore (_b_) the Conference has done its best to apply the essence of the law of nations to the solution of these new questions. Lord Desart thought the attempt was successful, and that the Conference really had produced what was "practically" a statement of the essence of the old law as applied to the new problems.
This view was not accepted by the British Parliament, nor apparently by any other, since they did not ratify the Declaration.
(2) Codification without alteration is really an impossible achievement.
Every person of experience knows that you cannot codify a large ma.s.s of floating customs and divergent laws without, by that very fact, introducing changes. I doubt if there has ever been any large work of codification accomplished, which was not both recommended to its admirers as being a great reform, and defended against its opponents on the ground that it was a mere registration of existing practice. Every great codification creates new law.
(3) The Declaration is specially recommended by its authors as being a compromise. The claims and customs of different nations conflict; each one yields here and is recompensed there. The best statement perhaps of the work of the Conference is contained in the General Report of its Drafting Committee.
"The solutions have been extracted from the various views or practices which prevail, and represent what may be called the _media sententia_.
They are not always in absolute agreement with the views peculiar to each country, but they shock the essential ideas of none. They must not be examined separately but as a whole, otherwise there is a risk of the most serious misunderstandings. In fact, if one or more isolated rules are examined, either from the belligerent or the neutral point of view, the reader may find that the interests with which he is especially concerned are jeopardized by the adoption of these rules. But they have another side. The work is one of compromise and mutual concessions. Is it as a whole a good one?"
Thus the Declaration is not a mere declaration of the existing law of nations. It is a compromise in which different parties make concessions, in response to other concessions which are made to them. And Mr. Bullard expects Great Britain, when suddenly involved in war with the most terrible enemy known to history, to make gratuitously all the concessions contained in the proposed compromise, and leave it to chance, or to the mercy of the Germans, whether she should get any of the compensations! And concessions, too, which her Parliament had considered excessive in peace time, even with the compensations guaranteed!
IV.
What then is left if the Declaration of London is not accepted? Is there to be no law of the sea at all? What is left is exactly all that there was before the sittings of that Conference, plus a certain extra lucidity in places due to its reports. The British courts simply continue to administer international law on the basis of precedent adapted to new conditions, exactly as all powers in the world have done.
This offends Mr. Bullard, but I find it difficult to make out what other course he would recommend.
To establish an international court _ad hoc_, in the middle of the war, and ask it to settle the new questions as they arise? To submit all cases to the neutral powers, with all the small European neutrals terrified of offending their big military neighbours? Refer all questions to the United States alone? Call another conference to revise the Declaration of London, and keep all prizes waiting till it reported?
I doubt if any of these courses would please many people. There may be some course which would have been better than the normal one, but it certainly is not obvious to the ordinary eye. And it seems a little hard to denounce the British Government as lawless tyrants, justly hated by the world, because they do not pursue a better method of settling prize cases than any one has yet practised, or perhaps even devised.
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 a.n.a.logous 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 pa.s.sage 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, j.a.pan 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 a.n.a.logy 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 a.n.a.logies 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 a.s.sert 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 ill.u.s.trate this point, and then deal with a difficulty that arises.
The cases of four ships, the _Kim_, _Alfred n.o.bel_, _Bjornstjerne Bjornsen_, 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 quant.i.ties 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?