The neutral merchant: in relation to the law of contraband of war and blockade under the order in Council of 11th March, 1915Piggott, Francis Taylor
History
The neutral merchant: in relation to the law of contraband of war and blockade under the order in Council of 11th March, 1915
Piggott, Francis Taylor
Blockade; Contraband of war; Neutrality; World War, 1914-1918
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. There is no such
doctrine as that when war is declared the warring nations are to fight
it out with their own resources only. It is not the duty of neutral
merchants to keep the ring and let the best man win. Sentiment does
not come into the question. The neutral merchant may serve that side
which he earnestly desires should win; but the other belligerent has
the extreme penalty of confiscation in his hands, and sentiment must
inevitably fade into the background.
The conclusion of the whole matter is that the two great war doctrines
are, the right of the neutral merchant to trade in contraband, and
the right of the belligerent nations to seize his cargoes. Combined,
they make the simple principle that the neutral merchant may supply
contraband to either side subject only to the risk of seizure by the
other. ‘The right of the neutral to transport,’ says Kent, ‘and of the
hostile Power to seize, are conflicting rights, and neither party can
charge the other with a criminal act.’[18]
_The Right and the Duty of Search_
But the principle of seizure is still in a very crude state; and seeing
that all cargoes destined for the enemy are not liable to seizure,
and that for practical reasons it is neither possible nor advisable
to bring in every cargo for adjudication in the Prize Courts, a
supplementary right has been devised, known as the ‘right of search.’
It is the first step in the seizure, and, on the one hand, affords
the belligerent an opportunity of letting non-contraband cargo go
free; on the other hand, it gives the owner of the cargo an immediate
opportunity of proving its innocent character. The right of search is
often stated as an independent right, but it is in reality secondary to
the right of seizure, and references to it obviously apply equally to
the right of seizure. As to its unlimited nature I need do no more than
quote the well-known words of Lord Stowell in the case of the Swedish
convoy.[19] It is incontrovertible
Public-domain text, read in full here on John Shaqi.
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