1599927Handbook of Maritime Rights — Chapter 5Henry Alexander Munro-Butler-Johnstone
International Law and the "reason of the thing."

I HAVE claimed the rank of International law in the highest sense for the provisions of the Consolato del Mare, as being founded on all the three necessary sanctions of such law, viz., (a) the reason and common sense of the thing; (b) the approval of the most eminent jurists; (c) the general consent of nations, when they were not under the influence of motives of state policy.

I wish to examine a little closely the first of these sanctions—the reason of the thing.

Nations at war with each other have been compared to individuals carrying on war with each other in the primitive condition of society. If I am at war with a man, I have no right to insist on any one taking my side in the dispute, but I have a right to insist on no one, who claims the privileges of neutrality, taking my adversary's side, which if he does, he violates impartiality and departs from neutrality. Now, if I am able to prevent my enemy from carrying his goods by sea, what right has a third party, calling himself a neutral, to step in and do for him what he is unable to do for himself? Not only this, but by his conduct he does me a double injustice, for he not only does for my enemy what my enemy is unable to do for himself, but thereby he enables him to increase, proportionately to the aid he receives, his means of offensive operations against me; for every sailor whom he lends my enemy to carry on his trade is a man subtracted from his commercial marine and added to his military marine, which he is at liberty to use for the purpose of invading or otherwise injuring me.

But this neutral, it will be urged, has rights too and interests as well, and what right have I—from the fact of being at war with another nation—to interfere with his rights and affect his interests? Let us examine this objection a little closely.

With some part of his trade clearly the belligerent has a right to interfere, and this right of interference is not even contested; I mean his right to blockade and hermetically seal his enemy's ports, which is a very considerable interference with neutral trade. Again, his right to interfere with the neutral's trade in respect to contraband of war has never been called in question, a right accruing only in time of war, and in consequence of the state of war—for at any other time this trade of the neutral is perfectly innocent. So that the absoluteness of the objection falls to the ground, and the objection is reduced to pleading for the immunity of what is called the lawful trade of the neutral. As, however, the question of what the law should be is the very point in question, we are not advanced a step in the decision of the question as to whether the lawful trade of the neutral should or should not include the carrying trade of the enemy, a trade which the enemy would not be able to carry on himself.

That part of the trade of the neutral which consists (with the limitation as to blockades and contraband of war) in selling his own produce to the enemy and buying the enemy's produce in return for his own, is not interfered with by the old maritime rule which we are at present considering.

What the rule does forbid is that a neutral should undertake the carrying of the enemy's property, in order to enable him to carry on a trade which otherwise would be stopped. And when we consider that the carrying trade of almost every nation is, in peace, carried on by itself, and that England is almost the only nation which has a carrying trade over and above the requirements of its own commerce, it is obvious that this claim to carry belligerents^ goods is not a claim for the retention of a privilege which the neutral enjoyed in peace, but for the acquisition of an advantage which the neutral never even pretended to in peace. In a famous instrument in which neutral rights are put forward, it is said that "there is no reason why the neutral should forego the considerable advantage offered him by a state of war between other nations." This pretension at any rate puts the matter in its true light. It is in fact a claim to make profit out of its neighbours' calamities, to coin money out of their blood, and reap a harvest from their misfortunes—a claim, when analysed, as preposterous and as monstrous as was ever put forward. And remark that this modest pretension was put forward (by the author of the armed neutrality) in the very name of humanity and civilization, and on the pretext of mitigating the horrors of war!

The very utmost damage which a neutral sustains by the exercise of this right is the loss (or liability to loss) of that infinitesimal portion of the carrying trade of its belligerent neighbour of which it had the enjoyment in time of peace, a damage which would very frequently amount to zero. But even if it amounted to an appreciable loss, when rights come into conflict, the lesser right must yield to the greater, and against the neutral right to carry must be set the belligerent rights of nations at war perhaps for their very existence, and in defence, may be, of the highest interests of mankind.

And in such a war is it to be asserted that the neutral right to pelf is sacred and the neutral's obligations are imaginary?

The fact is we hear a great deal of neutral rights but very little of neutrals' obligations, and yet common sense and the conscience of mankind agree in laying down that, if there is any meaning in the term Community of nations^ and if there are any duties which nations owe one another more sacred and binding than others, it is the obligation to endeavour to shorter, the duration of wars, to reconcile by every means in their power the belligerents to each other, and studiously to avoid everything which could prolong the duration of hostilities. To acquire a vested interest as it were,—as Prussia did during the Crimean War,—in the prolongation of the war, to give "aid and succour" to one or both belligerents by carrying his or their goods, and so providing the sinews of war, is in direct and flagrant violation of the most sacred obligations of neutrality.

I cannot disguise from myself; and I do not think I am travelling out of the record by insisting for a moment on this consideration, that the character of many, if not most, of the late wars in Europe has been such as to throw discredit on belligerents and belligerents' rights, and to invest with a credit and dignity, which by no means essentially belongs to them, neutrals and so-called neutral rights. Wars of aggression and of policy, thinly disguising motives of covetousness and brigandage, have been the general character of the wars that have taken place in our day. This fact seems to me to be that which has debauched the public conscience and utterly confused the public mind, on the true character of war and neutrality. War is really either the greatest of crimes or the most sacred of duties, and, as I began this book by saying, the only possible justification of war (and then it is a complete one) is the refusal of your enemy to do you justice, in a matter judicially investigated and pronounced upon by the highest tribunal of the land. If this were the character of all wars,—and I firmly believe it will henceforth be the character of all wars in which this country will be engaged—it is the rights of belligerents that would be invested in the public mind with the character of sacredness, and we should hear far less about the rights of neutrals. The rights of neutrals, as they are often put forward; are nothing more nor less than the wrongs of belligerents.

Before I dismiss this part of my subject I must shortly examine two arguments (if I may so call them) which are often put forward against the right of searching neutral vessels with a view to capturing enemies' cargoes.

(1.) It is said that the neutral vessel is part of the territory of the neutral nation, and therefore the belligerent has no right to violate it, any more than to land on the neutral territory and there seize the enemy's goods. Ward reduces this argument to its simplest expression, which makes it a reductio ad absurdum. It amounts to this: because a (say) Swedish ship belongs to Sweden therefore it is not a ship at all but a part of Sweden. Again, if the neutral ship is to be invested with the territorial character, what becomes of the undisputed belligerent right to seize contraband of war on board?

The fact is that the power of locomotion of a ship invests it with a character which is peculiar to it, and its power of harbouring enemies' goods is a very different one from that possessed by the neutral's territory. A bale of cotton stored at Charleston is a very different thing from that same bale invested with locomotive power (by means of the neutral's ship) and going to Liverpool or Havre to be exchanged for money and the sinews of war.

(2.) It is said that no nation has a right to exercise dominion over the seas, which the right of search and capture amounts to.

This is only the same verbal argument as the last and has to be met in the same way. I claim no dominion over the sea, I only claim to prevent the neutral from "aiding and succouring" my enemy;—and, if the reason alleged (absence of dominion over the sea) is good for anything, it is good to prevent the search for contraband—which is an undisputed belligerent right.

These arguments are in fact nothing but ingenious verbal quibbles, showing the straits to which our neutral friends are reduced.