The Vexed Question of Contraband

I

ONE of the most important questions presented to the United States by the opening phase of the war has been that of contraband and everything it implies. For some months it has been the subject of constant negotiations between London and Washington. The situation is not precisely new. The sparks of the last great European war ended by leaping across the Atlantic. The tinder of popular feeling which they touched off had been dried to burning point by years of bickering with Great Britain about the effects of her commercial blockade of Napoleonic Europe, and about the ruthlessness with which British naval officers impressed American sailors and searched American ships for British seamen. The days of the press gang are happily over. There is no likelihood that seamen will again be filched from American ships. But in essentials the position of the United States toward Europe is much as it was from the beginning of the French Revolutionary war to Waterloo. Once more Great Britain is determined to use her sea power to bring to his knees a Continental foe; once more her policy of maintaining the rule of contraband at that high level which best enables her to starve her foe of military supplies bears heavily upon neutral nations; and of neutral nations the United States is once more, if not the worst, by all odds the most important sufferer.

It did not need many weeks of warfare to make that clear. By the end of August the export trade of this country was dislocated. In September, 1913, exports to Germany were valued at over $34,000,000; for September, 1914, their value was scarcely over $2,000. For the whole of Europe the corresponding figures for the same two months were respectively $142,000,000 and $89,000,000. Simultaneously it became clear that the rules of maritime law were still so inchoate and anarchical as to leave Great Britain legally free to adopt the most extreme contraband lists that the world has seen.

The only comprehensive international instrument governing contraband and defining the status of neutral trade in time of war is the Declaration of Paris, signed in 1856 by the United States among other powers, but never, it may be noted, ratified by the Senate. The Declaration was the outcome of the differences between British and Continental marine policy during the French war and earlier. The first clear definition of contraband was given in the Treaty of Southampton, concluded in 1625 between Charles I and the States-General of Holland. The treaty declared that all food-supplies and provisions of war carried to Spanish ports would, together with the carrier ships and their crews, be considered ‘good prize.' From that and similar arrangements grew the habit of proclaiming lists of contraband at the outbreak of hostilities, a habit which has gradually acquired the force of law. The Treaty of Southampton was not, however, followed in all respects. Foodsupplies were generally excluded from the lists.¹

It was not till the beginning of the French Revolutionary war that Great Britain, and incidentally France, began to take up the advanced position which, by penalizing all neutral trade with their enemies, helped eventually to bring on the War of 1812. In 1793 both England and France made large seizures of provisions. Great Britain soon disposed of the French carrying trade, and as the French conquest of Europe proceeded, of the carrying trade of Spain, Holland, and other countries, as well. As Europe’s need of imports was enhanced by war, the result was that the neutral American carrying trade began to grow by leaps and bounds. But it did not prosper for long. The naval power of England was equal to the occasion. Severe restraints were imposed upon neutrals as well as enemies. Importations into France of provisions and naval stores were prevented, and the policy was gradually adopted of seizing enemy cargoes other than contraband, even when carried in neutral vessels. Against this policy Sweden, Denmark, and the United States, the latter by an eleventh hour war, protested in vain.

Down to the Crimean War England had thus succeeded in upholding the formidable doctrine that an enemy’s goods at sea are lawful prize under whatever flag they may be seized. During the Crimean War, — owing to the alliance of Great Britain with France, a naval power which, save during the abnormal era of the Revolutionary War and Napoleonic decrees, had been the chief protagonist in Europe of the doctrine of ‘Free ships, free goods,’ — the British doctrine remained in abeyance; and in the Declaration of Paris, immediately after the war, it was entirely abandoned, together with the right to declare ‘ paper blockades,’ in return for the abandonment of privateering by the European powers.

The effect of the Declaration of Paris was mainly negative. Its prohibitions did not do much to clarify maritime law. They left the rules of contraband disconcertingly elastic. It remained for the maritime conference meeting in London in the winter of 1908-09 to try to produce a real code. The conference was summoned to concoct a body of ‘rules of international law to govern the procedure of the International Prize Court ’ (that is, a court of appeal from national prize courts) suggested in one of the conventions of the Hague Conference of 1907. The resultant Declaration of London repeated what has been the rule ever since the days of Grotius, — that absolute contraband consists of articles exclusively used for war, and conditional contraband of articles susceptible of use in war as well as in peace. It broke new ground by drawing up a list of articles which in no circumstances whatever could be considered contraband. While upholding the doctrine of the continuous voyage in regard to absolute contraband, it excluded the doctrine in regard to conditional contraband, that is, it denied the right of a belligerent cruiser to seize cargoes of conditional contraband in neutral vessels bound to a neutral port on the ground that their ultimate destination was an enemy’s country.

II

When the present war started, the United States, as the leading neutral, expressed the hope that, abortive as the Declaration was, the belligerents would abide by it. Judging from her initial contraband lists, Great Britain was at first inclined to accept the suggestion in spite of the fact that she had never ratified the Declaration. But she speedily found that that would be impossible. Under the Declaration, oil, copper, and rubber were not, for instance, susceptible of treatment as absolute contraband; yet it was obvious that, with its immense system of motor transportation and its prodigious expenditure of ammunition, the German army would need above all things almost inexhaustible supplies of those commodities. Simultaneously it was discovered that oil, copper, and rubber imports to the neutral North Sea countries were increasing by leaps and bounds. The deduction seemed in London obvious: Germany was getting her supplies through her neutral neighbors. This, according to the Declaration of London, she could do without having the trade interfered with, as neither copper, oil, nor rubber appeared on the original British list of absolute contraband. Great Britain nevertheless began to seize some suspected shipments, paying, of course, the neutral merchant full prices for them. She also detained neutral vessels whose cargoes she suspected.

Her action started the present controversy. As most of the shipments were from the United States, and as American non-contraband trade suffered when it happened to be in the same hold with suspected goods, the State Department soon had to register a protest. Great Britain met the protest in the friendliest possible spirit. She had, she intimated, no wish to interfere more than was necessary with American trade; but, as she was sure the United States would understand, it was a matter of life and death to her to prevent Germany’s getting military supplies. To enable her to invoke fairly the doctrine of the continuous voyage, she would put oil, rubber, copper, and some other commodities, upon her list of absolute contraband. This she has since done, thereby dealing another blow at the Declaration of London, by stretching to its limit the old rule that absolute contraband should include only commodities used exclusively in war.

The difficulty, moreover, went too deep to be removed by revised contraband lists. The abnormal flow to neutral countries of oil, rubber, copper, and other commodities, continued, and Great Britain persisted in her practice of arresting vessels on suspicion. Deprived of their regular German markets, and with their neutral markets threatened with dislocation, American producers of copper and oil and rubber goods came running to the State Department for help. The chorus of their complaints was swollen by other traders whose shipments, although free, were delayed in the general tangle.

Nor was that all. To aid her policy of starving Germany in the military sense, Great Britain had meanwhile proclaimed an embargo upon the export from her possessions to all foreign countries of a large number of raw materials needed by Germany. Among these materials were many upon which American manufacturers are largely dependent. The State Department made further representations. In regard to the embargo it suggested that if the embargo were removed in favor of American manufacturers, it should be possible to see that Germany was not the gainer. In regard to contraband it said that, while it recognized the doctrine of the continuous voyage and the British right of search and seizure, it could not admit the justice of the British policy of detaining ships on suspicion. If, it argued in effect, a ship’s papers suggested contraband traffic, well and good; if not, and the goods were consigned to a purchaser in a neutral port or even ‘to order,’ the United States could not take cognizance of the probability that the goods were really meant for reexportation to Germany or Austria. The question of ultimate destination lay between Great Britain and the importing nation, not between Great Britain and the United States.

III

Such, reduced to its simplest terms, is the contraband dispute of which so much has been heard. It is not a simple controversy. Both sides can make out a good case. The United States is on firm ground, so far as precedent goes, when it questions the right of Great Britain to detain on suspicion cargoes of contraband ostensibly consigned to neutral countries. British and American lawyers alike have laid it down that the continuous voyage doctrine should be invoked only when there is clear proof that the shipment in question is really destined to go through to an enemy. When in the Civil War the Washington government asserted the doctrine against cargoes destined for the Confederacy via Mexico and West Indian ports it had a clear case. The traffic was patent. Neutral West Indian and Mexican ports, which before the war had been negligible, suddenly became teeming entrepots. While British trade was of course a sufferer from the right claimed by the United States to seize cargoes of contraband to these neutral ports, — on the ground that their ostensible destination was not their real one, — Great Britain had virtually to acquiesce in a doctrine based upon her own previous practice and upon the decisions of Lord Stowell. The present situation is different. The United States traded before the war with the neutral countries of Europe. While there may be and unquestionably has been strong general evidence of smuggling, the circumstantial evidence against any particular cargo is usually not incontrovertible.

To the indignation of certain interests the government has not officially protested against Great Britain’s new list of contraband, although it has reserved the right to do so in any particular case that may arise. Were it also to accept without protest Great Britain’s claim to detain promiscuously cargoes to countries convicted of reexporting to Germany and Austria, it would be crucified for not fulfilling its obligation to pluck from the conflagration of war as much as possible of American trade with Europe.

On the other hand, the claim put forward by Great Britain that new conditions necessitate new policies cannot be brushed aside. The United States has accepted the British contraband list because it recognizes that Great Britain could not afford to follow a code of contraband drawn up by men who lacked the imagination to see that the military machine of the twentieth century had been presented by modern science with all sorts of things that were not at the disposal of Frederick the Great or even of Wilhelm I. The question of search and seizure has likewise been immensely complicated by modern trade conditions. In these days of huge steamships, freights are more mixed and perishable than they were a hundred years ago. Steamships and railways have multiplied the avenues of import open to Germany and other countries. Rotterdam is now quite as convenient to Essen, Genoa to the foundries of Silesia, as Hamburg or Königsberg was a century ago.

Another result of steam transportation has been to cosmopolitanize what used to be local processes of manufacture. It is as easy now to mine ores on one side of the Atlantic and work them on the other side as it was to carry them fifty miles in the old days.

Great Britain, in fact, can argue and does argue that not to formulate a new and advanced policy to meet these conditions would be to sacrifice the fruits of her naval supremacy and to abandon the chief principle on which that supremacy is based, namely, that in a continental war control of the sea trade is a great part of the game. To minimize the difficulties of the situation as they appear at the time of writing would in this view be foolish. A Rip Van Winkle left over from 1814 might, on awakening to-day, imagine for one confused moment that history was about to repeat itself. There may well be unpleasant incidents and diplomatic controversies. But that there will not eventually be a satisfactory settlement is almost inconceivable. There is no true parallel between the situation now and a hundred years ago. At the time of the last great war the relations between Great Britain and the United States were excessively strained. The sores of the Revolutionary War were still open; French influences in the United States were still strong enough to make people ignore the fact that Napoleonic decrees were more arbitrary than the British Orders in Council. Great Britain, it may be recalled, never went so far as to assert, as Napoleon did, that any neutral ship submitting to search by a hostile cruiser should be liable to capture. Now American sympathy is more strongly with England than it ever was with Napoleon. Washington and London are no longer on each other’s nerves. On the contrary, they are determined not to quarrel. A century ago fundamental issues were at stake, — the right of Great Britain, for instance, to take sailors and noncontraband cargoes from American ships. Now it is only a question of the adjustment to unexpected conditions of principles which both countries accept.

The State Department wished at first that all the powers should accept the Declaration of London, not because it approved of its provisions so much as because it hoped to obtain a uniform rule which all belligerents would accept. As a matter of fact, the Declaration runs in some vital respects contrary to the traditions of Anglo-Saxon international law. It denies, for instance, the doctrine of the continuous voyage as applied to conditional contraband. That this should be the case is not surprising. The Declaration favors the interests of continental as opposed to maritime or isolated countries. This was admitted in an admirable article written some years ago, for a continental review, by one of the European delegates to the London conference. It was one of the chief reasons for the repudiation of the handiwork of the conference by the British Parliament. And if the British Parliament repudiated the Declaration, it can be argued that, by the recent withdrawal of its suggestion that the belligerents should follow the Declaration of London, the State Department also has returned to those principles of international law heretofore accepted by the United States and Great Britain. It is evident, at any rate, that a doctrine which allowed the natural ports of Germany to continue to be used for German trade simply because they happened to be in the control of neutral powers would always militate to the advantage of a continental power in a war with a maritime power.

The American doctrine of the continuous voyage was, on the other hand, based upon the common-sense view that the real character of the goods is determined by their real and not by their nominal destination. In the Civil War, the Supreme Court of the United States acknowledged the right of the Bahamas and Mexico to import what was needed for their own normal consumption, but refused to recognize their right to make money as a back door for illicit trade with the enemy.

IV

It is by the use of the same common sense that we hope the present controversy will be settled. In order to satisfy the normal wants of neutral countries and to reduce interference with neutral, and especially American, trade to a minimum, Great Britain is trying to get the neutral powers of the North Sea and the Mediterranean, which are in communication with Germany and Austria, to place an embargo upon the reexportation of contraband. Already partial embargoes are in force in the North Sea countries. The Netherlands and Sweden refuse to allow the passage of copper. Denmark, the Netherlands, Norway, and Sweden have placed an embargo upon the exportation of oil. Sweden has taken similar steps in regard to rubber. The Italian arrangement is less water-tight. Italy apparently refuses to allow the export of copper, but has not placed an embargo upon the transit of copper. For this and for other reasons the controversy cannot be deemed to be closed. One of the chief outstanding difficulties is connected with the common trade practice of consigning goods ‘ to order.’ The practice is followed mainly for the sake of convenience in financing bills. It is evident that the absence of any specification as to the real consignee implies the possibility that a belligerent subject may acquire shipments the moment they are landed, and send them on to a hostile destination. According to the British contention, this evasion is actually being practiced in regard to contraband goods in the free port of Copenhagen.

Consequently cargoes consigned ‘to order’ are still being detained for investigation, and shipments of commodities not covered by the embargoes of the Northern countries are still liable to similar treatment. In spite of the American protest, there are still lying off Gibraltar and in other harbors vessels which Great Britain has detained on suspicion. Washington is still badgered by exporters. Congressmen are waxing properly indignant on behalf of injured constituents; and German propagandists are asking why the State Department does not take as stiff a line about British high-handedness as was taken a century since.

There is also the question of deliberate smuggling, of false manifests, and matters of that sort. Some time ago, it will be remembered, the Treasury Department issued orders to the port authorities not to make public details about cargoes until a month after they had left the United States. Great Britain maintains that this order has increased her difficulties. It is asserted that cargoes of contraband are sometimes either omitted from, or falsely entered upon, ship’s papers, and that there have been instances of attempts to smuggle to Germany copper packed in bales of cotton or concealed among other non-contraband commodities.

And if Great Britain feels that the United States authorities have not perhaps, as yet, taken all possible steps to make smuggling difficult, the United States has on her side the grievance of the British embargoes, which prevent her from acquiring raw materials from British possessions. The fact that Great Britain is clearly within her right does not lessen the force of the grievance. Considerable harm is undoubtedly being done to various American manufacturing industries. The rubber trade, being deprived of British colonial rubber, is confronted with the prospect of a serious shortage of raw material. The woolen interests are clamoring for Australian wool. The crucible industry cannot get on without plumbago from Ceylon, and thus many kinds of metal manufacture are in danger of being hampered. Other metal manufactures are handicapped by shortage of manganese. The leather interests cannot get Canadian hides, and other producing businesses have been similarly cut off from part of their supplies of materials. There is a strong body of impartial feeling that Great Britain can well afford to relieve the United States from this incubus. While the government cannot, it is clear, interfere with the export trade, American manufacturers have signified their readiness to give the necessary guarantees t hat there shall be no reëxportation to Germany. Is it, they ask, either fair or politic of Great Britain to continue to hamper them, especially as many of their number, like the woolen, rubber, and metal manufacturers, are filling large orders for the Allies? Cannot. Great Britain rely upon their good faith and her control of the sea to insure that Germany will not profit from the use of British raw material?

In view of what was said above about evasion of the contraband laws, England’s answer to such arguments can be imagined. It is, however, an answer that suggests a way out of both difficulties. Let the United States do what it can to insure that its exporters are bona fide neutral traders and the embargo might be raised.

The solution, in fact, appears to lie in the usual Anglo-Saxon compromise, which is neither entirely reasonable nor entirely legal, but eminently practical. Chief Justice Marshall laid it down that war creates two indefeasible rights — one, the right of the neutral to export contraband; the other, the right of the belligerent to seize contraband. The United States government cannot interpose to prevent its citizens from exercising the legal right of dealing in contraband; but the American who is not a dealer in contraband has the indefeasible right of self-defense against fellow citizens who compromise the safety of his harmless shipments by placing in the same bottom clandestine shipments of contraband. The United States government can connive at, and even assist, an arrangement according to which the shipper, say of cotton, to a German port or to Germany via a neutral port shall not be imperiled. In other words, it can supervise the loading of ships and the papers of ships destined for such ports, and thus greatly increase the difficulties of contraband trade. This there is good reason to believe it is preparing to do to the satisfaction of all parties.

But speculation is futile. Much is bound to have happened before this paper can appear in print.² All that can be done at present is to give some sort of idea of the controversy as it stands. The thing which it seems to the writer most important to remember is that the controversy is not one of law but of adjustment. It was inevitable that in these days of cosmopolitan economics the United States should be the innocent victim of the delirium of Europe. It was perhaps inevitable also, in view of the chronic reluctance of the Anglo-Saxon political mind to face squarely the possibility of war, that both the United States and Great Britain should have been taken off their guard and should have had to bring up to date their contraband codes amid the clash of arms.

Be that as it may, the necessity has arrived; and one cannot be too thankful that the principles of their codes are the same. Had it been otherwise; had the United States, for instance, taken the same aggrieved stand about the British invocation of the doctrine of the continuous voyage that was taken by Germany, when during the Boer War German ships carrying munitions of war to Delagoa Bay were seized on the ground that their cargoes were really meant for President Kruger’s army; or had Great Britain tried to declare provisions contraband, as France did in her war with China in 1885, or provisions and even cotton and other things, as Russia did at first in her war with Japan, then indeed there would have been a large loophole for serious misunderstandings. As it is, one likes to think that only some very untoward accident or some egregious diplomatic blunder, or both, could create anything like dangerous international tension.