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Faith, war, and policy; addresses and essays on the European War online

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our duty, the more we feel the cause for which we are
fighting and are uplifted in spirit by the need of deter-
mination and of sacrifice, the less room there is in our
minds for the mean feelings of spite or hate or revenge.


It rests with men themselves to turn this appalling ex-
perience into spiritual good or evil. There are influences
enough, God knows, pulling in the evil direction; they
are published every morning and evening. But the
Government, the more thoughtful men and the central
mind of the nation, are, I believe, keeping tenaciously
to the higher and more permanent ideals. If that is done,
we may win from this war, as from some great Aris-
totelian tragedy, a "purification wrought by pity and
by fear."



(October, 1916)

An article in the " Atlantic Monthly" for October by
Mr. Arthur Bullard has set me thinking. It was hard
to classify. 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 un-
fair. 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 vera 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 tradi-
tions of Old- World Europe; the other typified by Fox,
Gladstone, Campbell-Bannerman, Bryce, which set be-
fore itself an ideal of righteousness and even of unself-
ishness 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 be-
friend, 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 Camp-
bell-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 politi-
cal 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 ex-
pected to give, and then pour out a whole commina-
tion 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 com-
mon honesty and truthfulness: we all agree and are edi-
fied. Then it appears that Mr. X once said he was

out when he was really at home and busy. The scoun-
drel! A convicted liar, a man who has used the God-
given privilege of speech for the darkening of knowl-
edge! 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 compro-
mise. A continuous foreign policy in a country gov-


erned alternately by Foxites and Northites is possible
only if both parties abate their extreme pretensions. And
Mr. Billiard, if I read him aright, expects it to be con-
tinuous 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 towards arbi-
tration, 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
by "a wholesale repudiation of legal restraints." We
have "decided that there is to be no sea law." Con-
sequently we have "alienated neutral sympathy more
gradually, but more surely, than the Germans." And
this alienation, we are led to suppose, is not mainly be-
cause 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 "deevil-
ish 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 scrap of paper on which Great
Britain had promised fair play at sea is torn up!"

I leave out certain passing accusations of hypocrisy
and proceed to examine the grounds for this invective.

"The scrap of paper on which Great Britain had
promised fair play at sea is torn up." By the "scrap of


paper" Mr. Bullard means the Declaration of London; he knows perfectly well that the Declaration of Lon-
don was never passed into law, never accepted either by-
Great Britain or by any other nation. It is simply un-
true to say that we promised to observe the Declara-
tion, or that that document 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 sub-
ject 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 any one. It was certainly a move in the
right direction, but there were two large objections to
it. First, many international lawyers — Professor Hol-
land 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 arma-
ments 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 be-
cause we are an island power; and, if we were once de-
feated 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 command-
ing 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 insuring 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
assumes that we ought to put in practice against our-
selves, 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 ex-
ample 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 so 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 Declara-
tion. This seems to Mr. Bullard worse than nothing: it
seems to me about the best thing that could be done in
the circumstances.

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 rati-
fied and had no legal force. But he points out that, both
in inviting the other nations to the conference and in rec-
ommending 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 com-
merce 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 (6) 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 "prac-
tically" a statement of the essence of the old law as ap-
plied 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 im-
possible achievement. Every person of experience knows
that you cannot codify a large mass of floating customs
and divergent laws without, by that very fact, intro-
ducing 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 Re-
port 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, other-
wise there is a risk of the most serious misunderstand-
ings. 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 dif-
ferent 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 pro-
posed 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!

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 rec-

To establish an international court ad hoc, in the mid-
dle 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 offend-
ing 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

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 has
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 unfavorably, 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 inter-
preted, 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 unwrit-
ten 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. Inter-
national 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 sec-
ond place, the body of precedents is very scanty com-


pared 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 complica-
tion between litigant interests can be solved by analogy
with some past judgement. Every new war gives birth
to new problems and complications which are not cov-
ered 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 prec-
edents in 1870, a few more from the time of the Ameri-
can Civil War, and a good number between 1790 and

Our first great offence is our extension of the doctrine
of "continuous voyage." This doctrine was first ap-
plied on a large scale by the Government of the United
States during the Civil War; it was an extension of pre-
vious 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 go-
ing 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 pursu-
ance 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 "con-
tinuous 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, Bjorn-
stjerne Bjornson, and Friedland, were considered be-
tween July and September, 1915, when judgement 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 al-
lowed by the High Court on various grounds, but most
were rejected. The main facts were as follows : Certain
exporters, mostly American, sent to Copenhagen enor-
mous 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 represen-
tative in Hamburg. The company a little later received
a telegram from this Hamburg agent saying, " Don't
ship lard Copenhagen, export prohibited" (that is, ex-
port to Germany was prohibited by the Danish Govern-
ment). In other cases there were misleading descrip-
tions of 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 any one blame us? Can any reasonable
person argue that Germany ought, by international law,
to be free to import all the explosives she likes, under
the nose of the Allied fleets, by simply making them
land at Copenhagen instead of at 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 "contin-
uous 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 rub-
ber 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 vari-
ous 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

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