Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-26T08:36:40.343Z Has data issue: false hasContentIssue false
  • English
  • Français

Some Questions of International Law in the European War1

Published online by Cambridge University Press:  04 May 2017

James W. Garner
Get access Rights & Permissions [Opens in a new window]

Extract

International law allows a belligerent two means of preventing wholly or in part sea-borne commerce between his enemy and neutral states. These are: first, the right to seize and confiscate absolute contraband goods destined to enemy territory and conditional contraband intended for the use of the armed forces or government of the enemy state; and, second, the right to blockade the ports and coasts of the enemy and thereby to prevent commercial intercourse with him in all articles whether contraband or not. In the April number of this Journal (pp. 372–401) I discussed in the light of the rules of international law applicable thereto the measures that have been adopted by the British Government in respect to trade in contraband since the beginning of the present war. The present article will be devoted mainly to a consideration of the British order in council of March 11,1915, the purpose and effect of which was to establish a blockade of all commerce entering and leaving Germany.

Type
Research Article
Information
American Journal of International Law , Volume 9 , Issue 4 , October 1915 , pp. 818 - 857
Copyright
Copyright © American Society of International Law 1915

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

1

Continued from the July number, p. 594.

References

2 Since the publication of the article referred to above, British policy in respect to contraband has received an important extension by an order in council of August 21, 1915, placing raw cotton, cotton waste, and cotton yarn on the list of absolute contraband. Cotton is on the free list in the Declaration of London and shortly after the outbreak of the present war the British Government gave assurances to the American Government that shipments of cotton to Germany would not be interfered with, but after the establishment of the blockade in March all cargoes of cotton destined to Germany and even to neutral ports, when there was evidence that the ultimate destination was enemy territory, were seized by British cruisers and taken in (except that cotton sold to German buyers prior to March 2d was allowed to be delivered, or if stopped, to be purchased at the contract price, provided the ship sailed not later than March 31st). In a memorandum of the British Government of July 24th, it was stated that more than $2,250,000 had been paid by the British Government to American claimants for cotton seized in pursuance of the order in council of March 11th. In a letter of April 18th addressed to certain memorialists requesting that cotton be placed on the list of contraband, the Attorney General of England stated that cotton was being excluded from Germany and Austria under the order in council as effectively as if it were absolute contraband and that nothing would be gained by putting it on the list of contraband. The order in council prevented access to German ports of all articles whether contraband or not; the effect of the order, he said, was virtually that of a blockade and therefore to declare cotton contraband would not alter the situation. But public opinion in England continued to demand that cotton be treated as contraband and this opinion was intensified by the belief, not to say the evidence, that large quantities of cotton were reaching Germany and Austria, especially through neutral ports, in spite of the blockade. The result of this pressure was the order in council of August 21st placing cotton on the list of absolute contraband. The British Government justified its action on the ground that cotton is now extensively used by the enemy in the manufacture of explosives, particularly those of a propulsive character, and that it has largely taken the place of saltpetre in the manufacture of gunpowder. Inasmuch, however, as cotton is also used much more extensively in the peaceful industrial arts the treating of it as absolute contraband is, of course, a violation of the distinction between conditional and absolute contraband. I discussed and criticised in the April number of this JOURNAL the disregard of this well settled distinction by the British Government. As is well known, the British Government during the Russo-Japanese War protested vigorously against the action of the Russian Government in treating cotton as contraband. It also protested against the American blockade upon outgoing cotton from the Southern States during the Civil War.

Germany and Austria before the present war ordinarily took about 2,000,000 bales, or about one-sixth of the American crop. During the past year they took about 1,000,000 bales from the United States; all of which, except 200,000 bales, was brought in through neutral ports. The British Government was reported in August to have been conducting an investigation with a view to determining what is the normal consumption of cotton in the neutral countries adjacent to Germany, the inference being that no cotton in excess of that amount would be allowed to go to those countries.

3 Considered in the July number of this JOURNAL, pp. 594-626.

4 It was so designated by some of the German papers, notably the Berlin Post. The London Times characterized it as a "so-called" blockade. It did not merit the name of "blockade," said the Times, "it was really an announcement that on and after the 18th of March Germany will run amuck in the North Sea."

5 Compare Phillipson, International Law and the Great War, p. 384. Commenting on the failure of the "so-called" German blockade of England, the London Times stated that during the first nine weeks following the going into effect of the decree, of 11,635 arrivals and sailings from British ports only 35 British steamers had been sunk by German submarines.

6 The British order in council of August 20, 1914, and the French decree of August 25, putting into force, with certain modifications and additions, the Declaration of London, made no changes in those portions of the Declaration dealing with block ade, except that two provisions respecting the presumption of knowledge regarding the existence of the blockade were added. They were the following:

The existence of a blockade shall be presumed to be known—

  • (a) To all ships which sailed from or touched at an enemy port a sufficient time after the notification of the blockade to the local authorities to have enabled the enemy government to make known the existence of the blockade;

  • (b) To all ships which sailed from or touched at a British or allied port after the publication of the declaration of blockade.

7 A Communication from the French Ambassador at Washington in practically identical language was sent to the Secretary of State at the same time. The German war zone decree, it may be remarked, was itself defended by the German Government as a justifiable act of retaliation for various alleged violations of international law by Great Britain, notably the British measures in respect to contraband, disregard of the Declarations of Paris and of London and the conversion of the North Sea into a military area.

8 The measure was generally defended by the English press as a justifiable act of retaliation.

The German Government," said the London Times (Weekly ed., March 19, 1915) "have placed themselves outside the region of the ordinary rules of international law by declaring, and acting upon their declaration, that all British and allied vessels coming within what they are pleased to term a 'military area' shall be destroyed without regard to the safety of the lives of passengers and crew. Whether those who ordered, or who take part in, these operations against non-combatants are, in the technical sense, 'murderers' or 'pirates' matters little. Their immunity according to municipal law is by no means so certain as some of our correspondents assume. But they have, at all events, been guilty of flagrant violation of the usages of civilized warfare, amply warranting reprisals, without prejudice to other measures at some later time against the individual offenders. The order in council announces, in effect, though not in name, a stringent blockade. The order in council is our answer to measures intended to reduce us by starvation. It is a question, too, of the fate of persons peacefully and inoffensively navigating the high seas. There is already a serious list, which the German Government boast they will soon make much longer, of unoffending seamen and passengers destroyed without warning, and among them at any moment may be the subjects of neutral states. We have the right to expect neutrals to put to themselves the question, 'What would they have done in similar circumstances and with issues of the gravity and magnitude of ours at stake?'"

The London Post declared that Great Britain was "throwing into the sea the whole strangling web of judicial net work." The London Chronicle, speaking of German violations of the laws of war, remarked that:

"These savageries are unprecedented, and, so far as we are concerned, will not be imitated. The object of the allied governments is to obtain the same advantages against Germany that she claims to obtain against us, but to claim it without outraging humanity and without inflicting upon neutrals any particle of avoidable hardship."

9 The right of a belligerent to retaliate in kind against acts of the enemy which are contrary to the recognized rules of civilized warfare is admitted by most of the authorities. "The whole international code," says Wheaton, "is founded upon reciprocity. The rules it prescribes are observed by one nation, in confidence that they will be so by others. Where, then, the established usages of war are violated by an enemy, and there are no other means of restricting his excesses, retaliation may justly be resorted to by the suffering nation, in order to compel the enemy to return to the observance of the law which he has violated." (Elements of International Law, Ed. by Lawrence, pp. 605-608.) "The golden rule," says Taylor, "has little international application. If the enemy violates the established usages of war it may become the duty as well as the right of his adversary to retaliate in order to prevent further excesses on his part." (International Public Law, sec. 487.) "Reprisals are legitimate," says Rivier, "when an enemy resorts to means prohibited by the law of nations" (Principes du Droit des Gens, Vol. II, p. 298), and Oppenheim remarks that they cannot be dispensed with, because without them, illegal acts of warfare would be innumerable. (International War, Vol. II, p. 259.) Spaight quotes Martens as saying that "history abounds in numberless examples of the most atrocious cruelties under the pretext of reprisals," yet, says Spaight, one cannot see how they can entirely be done away with. (War Rights on Land, p. 463.) The German jurist, Leuder, remarks that, according to recognized principles, non-observance by one side [of the laws of war], relieves the other party from the obligation to observe them, otherwise a belligerent would be at a disadvantage as compared with his enemy. (Holtzendorff, Handbuch des Vblkerrechts, Bd. IV, sec. 66.) "A state," says Westlake, "having a claim which it believes itself to be justified in prosecuting by force of arms * * * cannot reasonably be expected to observe every rule of the game, at the risk of its own defeat or of having its soldiers and subjects exposed to avoidable suffering, when its antagonist has added to his original wrong by breaking the rules of the game." (Collected Papers on Public International Law, p. 260.) Many other similar opinions might be quoted. The whole matter has lately been considered by W. E. Wilkinson in an article entitled "Reprisals in Warfare," in the Law Magazine and Review, for May, 1915. The right of retaliation is recognized in all the existing manuals of war although it is not dealt with in any of the Hague conventions. In practice it has been resorted to in most of the wars of the past, notably by both belligerents in the War of 1812; by General Early in the burning of Chambersburg during the American Civil War in retaliation for General Hunter's destruction of property in Virginia; by the English and French in the sacking and burning of the Emperor's palace in China in 1860 in retaliation for Chinese cruelties to Europeans; by the Germans in bombarding open and undefended French towns during the war of 1870 in retaliation for the killing of their soldiers by private individuals; and by Lord Roberts on a large scale during the South African War. It has been resorted to by the Germans during the present war, in the form of aerial bombardments of undefended towns in retaliation for the British blockade which they regard as illegal, and by the Austrians in bombarding by means of air craft Venice in retaliation for the alleged bombardment by the Italians of Trieste. The Italians, it may be stated, however, claim that their aeroplanes did not bombard the city of Trieste but only the military supply depots at Maggia and Pirano, situated two and a half miles from the city. The Austrians also justify their bombardment of Belgrade as an act of reprisal for the alleged bombardment of open Austrian towns by the Serbs. (Rev. Gen. du Droit Int., July-Oct, 1915, p. 120.)

The British blockade as a retaliatory measure against the German submarine activities is less open to objection than any of the above measures of retaliation, for the reason that blockade is a well-recognized mode of legitimate warfare whereas the methods of the German submarines are not. If it be admitted that the British blockade is effective, those against whom it is directed have no real ground for complaint. Only neutrals whose rights are adversely affected through unlawful measures by which the blockade is enforced may justly attack it.

10 "We agree with Mr. Balfour," said the London Times (Weekly ed., Apr. 9th), "that international law can hardly be obeyed literally, unless both sides concerned are prepared to obey it. The obligation of that law is necessarily to some extent conditional, and the condition is that it shall be reciprocally observed. That this is the case is clear from the acknowledged right of reprisal. In this war the Germans have flagrantly and persistently broken the condition. Nobody has proclaimed the fact louder or with more righteous indignation than the Americans. How could they in these circumstances ask us to regard ourselves as rigidly bound, while our opponents arrogate to themselves with impunity a boundless freedom? We do not for a moment maintain that the crimes of the Germans would excuse us for the perpetration of similar crimes. That, as Mr. Balfour has well said, is forbidden, not by international law, which is conditional, but by international morality, which is positive."

11 The policy which I am defending," he adds, "has no resemblance to this. It violates no deep ethical instincts; it is in harmony with the spirit of international law; it is more regardful of neutral interests than the accepted rules of blockade; nor is the injury which it is designed to inflict on the enemy of a different character from that inflicted by an ordinary blockade. And, lastly, it is a reply to an attack which is not only illegal, but immoral; and if some reply be legitimate and necessary, can a better one be devised?

Compare also the report of the French Ministers of Finance, Foreign Affairs, Marine and of War to the President of the Republic of March 12, 1915:

"Such pretensions on the part of the enemy give to the Allied Governments the right to respond by preventing every kind of merchandise from reaching or leaving Germany. However, the Allied Governments never intend to follow their enemy in the cruel and barbarous methods of which he habitually makes use, and the measures to which they have been obliged to have recourse shall not in their intention carry any risk for neutral vessels or for the lives of neutrals or non-combatants and shall be applied in strict conformity with the laws of humanity." Rev. Gen. de Droit Int. Pvb., Jan. June, 1915, p. 50.

12 By a decree of March 13, 1915, the French Government put into effect a measure substantially the same as that of the British order in council of March 11th.

13 Observe the use of "might" and not "would." Perrinjaquet (Rev. Gen. de Droit Int. Pub., Jan.-June, 1915, p. 217) points out that the British order in council did not prohibit neutral ships from entering or leaving German ports, but merely prohibited them from taking in goods or from bringing out merchandise of German origin. The distinction is of little importance for the reason that neutral vessels could .hardly have any other object in entering or leaving German ports.

14 It is worth noting that the order contained no mention of an intention to blockade the commerce of Germany's allies, Austria and Turkey, the reason obviously being that the measure was intended as an act of retaliation against Germany alone for her submarine activities and not against her allies, who were not associated with her in the war zone decree of February 4th, and who have not resorted to the methods of warfare followed by the German submarines. Neutral trade with Austria-Hungary and Turkey was not, therefore, forbidden, but owing to the geographical proximity of the two first mentioned countries to Germany and the presence therein of German troops, the burden of proving that non-contraband goods destined thereto were not intended for Germany would naturally be very difficult. The importation by neutrals of Austrian or Hungarian-made goods was allowed under restrictions designed to prevent German-made goods from coming through. Compare Perrinjaquet, La Guerre Europtenne, etc., in the Rev. Gin. de Droit Int., Jan.-June, 1915, p. 216.

15 Compare the London Times (Weekly ed., March 19th): "There is no mention of 'blockade', though, in view of modern conditions of maritime warfare and the present situation in the North Sea, some of the provisions of the order show a desire to impose as little inconvenience as possible upon neutrals. But it means no less than the prevention of goods of any kind entering or leaving Germany; and we must expect criticisms or protests from neutrals. It is to be hoped that they will bear in mind, in considering this important document, that with us it is not, as with them, a question of trade, but of national existence."

16 On July 14th the Secretary of State dispatched a note to the British Government, in which he stated that in view of differences which were understood to exist between the two governments as to the principles of law applicable in prize court proceedings in cases involving American interests, and in order to avoid any misunderstanding as to the attitude of the United States in regard to such proceedings, the British Government was informed, that in so far as the interests of American citizens are concerned, the Government of the United States will insist upon their rights under the principles and rules of international law, as hitherto established, governing neutral trade in time of war, without limitation or impairment by orders in council or other municipal legislation by the British Government, and will not recognize the validity of prize court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens.

In a note dated July 31st Sir Edward Grey replied that he was unaware of any differences between the two countries as to principles of law applicable in cases before the prize courts. British prize courts, he said, had always determined cases according to the law of nations and the statutes and the rules enacted in pursuance thereof. He then quoted from the case of the Amy Warwick to show that American prize courts were subject to the instructions of their own sovereign. The principles applied by the prize courts of the two countries appeared, therefore, to be identical. In further illustration of the attitude of the British courts toward municipal law and international law, he quoted at length from the decision of Lord Stowell in the case of the Fox, where it was stated that the obligation of the prize court to administer the law of nations and the obligation to administer the King's orders in council were not at all inconsistent with each other because the latter are presumed to conform to the unwritten law.

"In the note which I handed to your Excellency on the 23d of July," he said, "I endeavored to convince the Government of the United States, and I trust with success, that the measures that we have felt ourselves compelled to adopt, in consequence of the numerous acts committed by our enemies in violation of the laws of war and the dictates of humanity, are consistent with the principles of international law. The legality of these measures has not yet formed the subject of a decision of the prize court; but I wish to take this opportunity of reminding your Excellency that it is open to any United States citizen whose claim is before the prize court to contend that any order in council which may affect his claim is inconsistent with the principles of international law, and is, therefore, not binding upon the court. If the prize court declines to accept his contentions, and if, after such a decision has been upheld on appeal by the Judicial Committee of his Majesty's Privy Council, the Government of the United States of America consider that there is serious ground for holding that the decision is incorrect and infringes the rights of their citizens, it is open to them to claim that it should be subjected to review by an international tribunal."

In a note of October 21, 1915, Secretary Lansing again asserted that the British orders in council and the regulations for their enforcement were contrary to international law, yet the prize court was bound by them; it followed therefore that the court was powerless to pass on the real ground of complaint or to give redress for wrongs of this nature. Regarding Sir Edward Grey's suggestion that claimants were free to request the prize court to rule upon claims in respect to a conflict between an order in council and a rule of international law, Mr. Lansing raised the question as to how a municipal court could freely apply rules of international law in conflict therewith.

17 Belgium being under German occupation was treated as German territory, and therefore goods of Belgian origin were treated as coming within the purview of the order in council.

18 It was stated in the press dispatches at the time that there were between $50,000,000 and $100,000,000 worth of alleged American owned goods in Holland and Germany, all of German origin, which had been purchased or contracted for before the order in council went into effect and which were prevented from being brought to the United States in consequence of the order. The foreign trade advisers of the State Department reported late in October that these estimates were grossly excessive. According to their own estimates the amount of such goods, paid for or contracted for, before March 1st was not in excess of $15,000,000 and was probably less than $12,000,000. Under an arrangement entered into between the American and British Governments in September, American importers were allowed to apply to the British Embassy in Washington for permits to bring out goods of German origin held in neutral ports, provided they had been paid for or contracted for previous to March 1st, the day on which the announcement of the proposed blockade was made in Parliament. An informal request of the American Government that the benefit of this concession be extended to goods bought or contracted for before March 15th, the date of the order in council establishing the blockade, was denied by the British Government. All such applications were required to be filed by November 1, 1915, the British Government refusing likewise a request that the latter date be extended to December 1. About 1600 claims for release were filed. Down to November 1st, some 600 had been considered, of which only 75 had been approved by the Embassy.

19 At the present writing the cargo of the Neches is still in the hands of the prize court, and the controversy therefore remains unsettled.

20 Regarding complaints of undue delays in dealing with American cargoes in the prize court, Lord Crewe quoted the following remarks of the president of the court at the hearing on June 14, 1915, of the case of the American steamship Ogeechee (seized by the British Government while bound from Bremen to New York): " I t is a very extraordinary thing that when the crown are ready to go on, the claimants come here and say 'We cannot proceed for six weeks.' Some day, towards the end of last term, I had a row of eminent counsel in front pressing me to fix a case at once. I fixed it very nearly at once—that is to say, the second day of the following term. They all came and said: 'We want an adjournment for six weeks."'

Referring to the Chicago meat packers' cases that had been before the prize court since last November, Lord Crewe explained the delay as being largely due to the fact that negotiations were carried on for many weeks with a representative of the packers for an amicable settlement out of court. "When at length," he said, "owing to the failure of the negotiations, His Majesty's Government directed that they would continue the prize court proceedings and had at the request of the claimants fixed the earliest possible date for the hearing, counsel for the latter asked for an adjournment in their interests, despite the fact that the crown was, by his own admission ready to proceed." Finally, on September 15, 1915, a decision was rendered in these cases, condemning the cargoes as good prize. Their value was estimated at about $15,000,000.

21 According to statistics of the Treasury Department, as published in the press dispatches, the increase in American exports since the outbreak of the war amounted to $200,000,000 during the first eleven months of the war, while American ocean freight increased by 744,000 tons. Significant as indicating the amount of American goods entering Germany and Austria, attention was directed to official statements that the exports of the United States to the Netherlands had increased from $93,000,000 to $122,000,000; to Sweden from $12,000,000 to $71,000,000; to Norway from $7,000,000 to $35,000,000, and to Denmark from $13,000,000 to $70,000,000.

That America received a fair supply of goods from Germany notwithstanding the war is shown, the British Government contended, by the fact that in eight months the imports from that country to the United States aggregated $86,000,000, and it was also noted that the importation of dye stuffs from Germany was greater than in the previous year.

In a note made public by the Department of State on October 1,1915, Sir Edward Grey replied to the American charges that the British blockade was operating to prevent American exports to neutral countries whereas British exports to the same countries had greatly increased. He admitted that British exports or re-exports of many commodities to certain neutral countries had increased as a result of the cutting off of the German supply, but he cited statistics to show that in nearly every instance there had also been a much greater increase of American exports of the same articles to these countries. Many of his statistics were taken from the reports of the American Consul-General at London.

In his note of October 21st, Secretary Lansing called attention to the fact that the contention of the British Government in regard to the increase of American exports since the outbreak of the war failed to take into account the increased price of commodities resulting from a state of war or to make any allowance for the diminution in the volume of trade between European neutral nations and belligerent countries resulting from the war—a circumstance which necessarily increased the demand of those countries for American goods and which therefore repelled the presumption that they were necessarily destined for enemy territory.

22 The London Times (weekly ed., of April 9, 1915), commenting on the British note, said: "We could hardly expect the Government of the United States to accept without reserve or protest what we acknowledge to be a novel departure from the technical rules of international law, as established under wholly different conditions of naval warfare which existed when these rules grew up. But if contrary to international law, it is not contrary to its spirit. It expressly affirms that we shall show such commerce all the consideration compatible with the object we have in view. That object, we may again remind the United States, is as vital to us as the destruction of commerce with the Confederate States was to the Union during the Civil War. We did not then stand upon technicalities with them, and we feel that we may fairly ask them not to show greater jealousy of their extreme legal rights now that we are fighting for our existence than we displayed in 1861. There are some passages in this note which might be interpreted, did they stand alone, as indicating an inclination to treat particular points in a somewhat narrow temper. It is suggested, for example, that the blockade is not at present effective so far as Baltic ports are concerned. Was the American blockade of the Southern ports effective for months after it was declared? Americans know that it was not, but nevertheless we raised no controversy with them upon that score."

23 "The least attentive reader of the British notes made public this morning," said the New York Times (Aug. 4th), "will observe the marked difference between their tone and spirit and the tone and spirit of the German replies to our protest against the war zone declaration, and in particular to our notes delivered in Berlin since the destruction of the Lusitania. The British Government declares its intention to enforce its blockade as a war measure against Germany with the fullest possible consideration of the interest of neutrals, and there are no attempts to dictate to us impossible and unacceptable methods of avoiding present inconveniences."

24 Since this article was put in type an elaborate note dated October 21, 1915, addressed by the Department of State to the British Government has been made public. In this note previous agreements of the Secretary of State were developed with greater detail, and accompanying the note were various statistical addenda relating to seizures and detentions of American vessels on suspicion of attempting to violate the British orders in council in respect to contraband and blockade. The note protested against the British practice of taking in American ships for the purpose of searching them for evidence, contrary to the practice in previous wars and notwithstanding the fact that according to the opinion of a board of American naval experts adequate searches may be made on the high seas at the time of seizure; it complained of the methods of procedure of the British prize courts in regard to the nature of the evidence admitted at the trial and of the placing of the burden of proof on the claimant where the goods are consigned "to order"; it vigorously attacked the British doctrine of presumption that the increased exportations to neutral countries was conclusive as to enemy destination or use—this in the face of the fact that most of the goods in question had been placed on the embargo list of those countries; it called attention to the fact that the British Government had admitted that British exports to those countries had likewise increased and that under the British doctrine of presumption of enemy destination this presumption could be still further extended in proportion as British exports increased; it affirmed that "whatever may be the conjectural conclusions to be drawn from trade statistics * * *" the United States would "maintain the right to sell goods into the general stock of a neutral country and would denounce as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground of mere suspicion of enemy destination. The measure instituted by the order in council of March 11th was characterized as a "so-called" blockade which did not distinguish between enemy and neutral trade, which was ineffectual even according to the admission of the British Government as shown by its order placing cotton on the list of contraband as a means of effectually preventing the shipment of that commodity to Germany; the blockade was again attacked as illegal because it is not applied impartially to the ships of all nations since German ports were "notoriously open" to traffic with the ports of Denmark, Norway, and Sweden and also because it bars access to neutral ports and coasts in violation of the Declaration of London; finally, it was argued that the doctrine in the Springbok case was not applicable to the present situation because the circumstances were different, the ports of the Confederacy having been effectually blockaded, though no neutral ports were closed and a continuous voyage through a neutral port required an all sea voyage terminating in an attempt to pass the blockading squadron. Attention was also called to the fact that Sir Edward Grey in his instructions to the British delegates to the London Naval Conference in 1908 had expressed doubt whether the decision in the Springbok case was meant to cover blockade running independently of carrying contraband, but in case it was so intended it was in conflict with the decisions of the British courts and its rejection must be insisted upon at the conference.

The note also complained of other acts in connection with the enforcement of the orders in council, notably of the British practice of releasing vessels detained for examination only upon condition that various costs and expenses, such as pilotage, wharfage, demurrage, harbor and warehouse duties, etc., incurred in the course of an unwarranted procedure, are paid by the owners, or upon condition that they sign a waiver of their right to bring subsequent claims against the British Government for such exactions.

25 Compare the remarks of Hon. A. J. Balfour on this point: "Whether such a policy be, or be not, in harmony with the accepted rules of international law is a point to which I shall refer in a moment. But this, at least, may be said in its favor. It cannot cause the death of a single innocent civilian; it cannot destroy neutral lives and neutral property without legal process; it cannot inflict injury upon neutral commerce comparable in character or extent to that which would be produced by a blockade whose legality was beyond question." (London Weekly Times, April 2, 1915.)

26 For generations past, says Lawrence (International Problems and the Hague Conferences, p. 189), it has been assumed without exception that a blockade must be effected by ships. There have been controversies, he adds, as to the(Jnumber of ships necessary to constitute an effective blockade, but no state has claimed the right to institute a blockade without placing some of its men-of-war in close proximity to the place blockaded. Ortolan (Diplomatic de la mer, Vol. II, p. 328) stated the old rule when he said all approaches to the blockaded port must be guarded by permanent naval forces. "No maxim of the law of nations," said James Monroe, "is better established than that a blockade shall be confined to particular ports and that an adequate force shall be stationed at each to support it. This force should be stationary and not a cruising squadron." (Moore's Digest of Int. Law, Vol. VII, p. 789.) Even more recent writers like Fauchille (fin. Bloats Maritime, p. 132) assert that a blockade may be maintained only by war vessels. The invention of the torpedo raised the question as to whether a blockade maintained by torpedoes was valid. For a discussion of the question see Pradier-Fod6r6 (Droit Int. Pub., Vol. VIII, § 3116), who says there is no serious reason why it should not be admitted. The question of whether mines may be employed for purposes of maintaining a blockade was discussed at the Second Hague Conference. The British delegation proposed an article forbidding the use of automatic contact mines for this purpose. M. Hagerup, president of the commission to which the matter was referred, remarked that everybody was agreed that such use of mines was not allowable. Sir Ernest Satow declared that the "sufficient force" required by the Declaration of Paris had reference to ships of war and not submarine mines, which are subject to no control and which contain in them no proof of intention to close access to the blockaded port. The convention as finally adopted contained the illusory provision that the placing of automatic contact mines before the coasts or ports of the enemy for the sole purpose of intercepting commercial shipping was forbidden. See on the question of blockades by mines, International Law Situations, 1908, p. I l l ; also Lawrence, Int. Problems and the Two Hague Conferences, 189, et seq. The question of the methods of making a blockade effective was discussed at the London Naval Conference (see House of Commons Sessional Papers, Misc. No. 5, 1909, pp. 25, et seq.), but in the rules adopted there are no provisions regarding the character of the means that may be employed. There is merely the statement that "it must be maintained by a force sufficient really to prevent access to the enemy coastline" (Art. 2).

27 Compare the views of Julian S. Corbett, in the Nineteenth Century and After, Vol. 61, p. 926; also Bentwich, The Declaration of London, p. 16.

28 In this connection it may be remarked that the British Government at first made no attempt to send war ships into the Baltic Sea for the purpose of blockading that portion of the German coast adjacent thereto. The result has been the development of an enormous trade between Sweden and Germany, whereas trade with Germany through the North Sea has been barred by means of the British blockade. American shippers have therefore complained of the unequal operation of the blockade in its effect upon neutrals. They protest that, whereas ocean trade between Sweden, Norway and Denmark on the one side goes on with Germany subject to little or no restriction, American trade direct with Germany and indirectly through Norwegian, Swedish and Danish ports is prohibited. They point out that a legal blockade cannot discriminate in favor of one neutral against another. Recently, however, the British submarines have become very active in the Baltic and during the second and third weeks of October they destroyed twenty-one German merchant vessels, most of them laden with iron ore destined from Swedish to German ports. Five transports and one destroyer were also sunk. (New York Times, Nov. 9, p. 12.) The British blockade of the German Baltic coasts is therefore much more effective than it was at first. At all events, it can no longer be said that trade between Scandinavian and German ports is open and unobstructed. Article 5 of the Declaration of London declares that "a blockade must be applied impartially to the ships of all nations." This rule is in accord with the doctrine laid down by the British prize court in the case of the Franciska. (10 Moore's Prize Cases, 37.) A belligerent, says Bentwich (The Declaration of London, p. 47), "may not favor one neutral at the expense of others, or his own merchant marine at the expense of neutrals." The British answer to this complaint of discrimination is that it results not from any deliberate intention but from a geographical situation which renders it impossible to blockade the Baltic ports of Germany. Compare the following defense by Hon. A. J. Balfour, published in the London Weekly Times of April 2, 1915:

"Now the object of this rule (which forbids discrimination as between neutrals) seems clear. It is designed to prevent the blockading Power using its privileges in order to mete out different treatment to different countries; as for instance, by letting ships of one nationality pass the blockading cordon while it captures the ships of another. Such a procedure is, on the face of it, unfair. It could have no object but to assist the trade of one neutral as against the trade of another and arbitrarily to redistribute the burden which war unhappily inflicts on neutrals as well as on belligerents. Now I submit that if there be discrimination inflicted by the British blockade, it is not discrimination of this kind. It does no doubt leave the German trade with Sweden and Norway in the same position as the German trade with Holland and Denmark, and in a different position from the German trade with America or Africa. But the discrimination (if it is to be so described) is not the result of a deliberate policy, but of a geographical accident. It is not due to any desire to favor Scandinavian exporters as compared with American exporters; and in practice it will have no such effect. They are not, nor to any important extent can they be, competing rivals in the German market.

"If any man be in doubt whether this point be technical or substantial, let him weigh the following considerations. The rule against discrimination was devised (as we have seen) in the interests of neutrals. But which is best for neutrals—that there should be a blockade conducted in the ordinary way, or that there should be a blockade of the new pattern described in the order in council? The latter may indeed ignore the Baltic, and treat Scandinavia as if, like Holland, it were divided from Germany only by a land frontier. But while the discrimination so produced can inflict no substantial injury on any neutral, the blockade to which it is due, unlike its more orthodox predecessors, forbids the capture either of neutral shipping or neutral goods (other than contraband of war) and so relieves the neutral importer of his most serious anxieties."

29 See my article in the April number of this JOURNAL, pp. 387-390, on this point. It is well known that the attitude of the British Government, however, was one of acquiescence rather than of approval. But compare the remarks of Sir Edward Grey's note of July 23d, summarized above, where he says, speaking of the European opposition to the American doctrine: "But the United States and the British Government took a broader view and looked below the surface at the underlying purpose," etc. Mr. Fish stated in certain secret instructions to the American members of the Anglo-American Joint High Commission in 1871, that 167 cases had been condemned by the American prize courts during the Civil War and that with the exception of the condemnation of the Springbok, the Department of State was not aware of a disposition on the part of the British Government to dissent from any final adjudication of the Supreme Court in a prize case. Moore's Digest, Vol. VII, p. 733.

Baty (Britain and Sea Law, p. 72) remarks that the British Government did not "strenuously object" to the novel doctrine enunciated in the Springbok and other cases because it "hoped to find it useful and it proved to be so in the South African War."

30 Compare Bentwich, The Declaration of London, p. 56. Sir Edward Grey in his instructions to Lord Desart, President of the British delegation, stated that a vessel whose final destination is a neutral port cannot, unless she endeavors, before reaching that destination, to enter a blockaded port, be condemned for breach of blockade, although her cargo may be earmarked to proceed in some other way to the blockaded coast. His Majesty's Government believe that all the Powers will probably be in agreement on this point unless the United States were to maintain that the condemnation pronounced by their Supreme Court in the well known case of the Springbok extended the application of the doctrine of continuous voyage to breaches of blockade. House of Commons Ses. Papers, Vol. 54, No. 4 (1909), p. 27.

31 The theory of continuous voyage as enunciated and applied by the Supreme Court in the case of the Springbok was criticized by a committee of the Institute of International Law as " subversive of an established rule of the law of maritime warfare according to which neutral property on board a vessel under a neutral flag, whilst on its way to another neutral port, is not liable to capture or confiscation." "Such trade," it added, "when carried on between neutral ports has, according to the law of nations, ever been held to be absolutely free, and the novel theory, as above propounded * * * would aggravate the hindrances to which the trade of neutrals is already exposed and would, to use the words of Bluntschli 'annihilate' such trade by subjecting their property to confiscation, not upon proof of an actual voyage of the vessel and cargo to an enemy port, but upon suspicion that the cargo, after having been unladen at the neutral port to which the vessel is bound, may be transshipped into some other and carried to some effectively blockaded enemy port." Such a theory, it was said, must be regarded as a "serious inroad upon the rights of neutral nations" and the results would be that "every neutral port to which a neutral vessel might be carrying a neutral cargo would become constructively a blockaded port, if there were the slightest ground for suspecting that the cargo, after being unladen in such neutral port was intended to be forwarded in some other vessel to some port actually blockaded." Revue de Droit Int., Vol. XIV, pp. 329-331. This fairly represented the opinions of all Continental and English publicists, as well as some, like Wharton (Int. Law Digest, III, 404), in the United States. See similar views of other publicists in Moore's Digest, Vol. VII, pp. 727-739.

32 Perrinjaquet, a French writer (in the Revue Generate de Droit International Public, Jan.-June, 1915, pp. 225-226) maintains that the principles which dominate the law of blockade at the present time do not justify the Anglo-French measures. The doctrine of continuous voyage in respect to blockade, he argues, can be applied only where there are two voyages, the second of which, like the first, is by sea, but, unlike the first, is between a neutral port and a blockaded port, as was the case with the Springbok. In the case of neutral ships destined to Dutch ports during the present war, there is but one maritime voyage and it is between ports both of which are neutral. If there is a subsequent transshipment to the belligerent it is by land and cannot therefore be reached by a maritime blockading measure. Consequently, if there is but one ocean voyage and it is between neutral ports, belligerents have no right to interfere with a ship during the course of such a voyage, for the purpose destinaof ascertaining whether there is evidence of an intended transshipment by land to the enemy whose coasts are the object of the blockade. Nevertheless, France and England have done this, and more, for they have diverted from their routes vessels bound to and from neutral ports, when such vessels carried cargoes whose ultimate destination was not established or which had an enemy origin, even when they had sailed from neutral ports. Never before, he concludes, has the right of blockade been carried to such lengths, and the English doctrine of presumption by which a ship destined to a blockaded port may be seized at a great distance from such port has never before been applied to cases where merchandise destined to neutral ports was merely suspected of being intended for ultimate transshipment by land to enemy territory. The correctness of this statement, however, may be questioned, for it was exactly this claim which England put forward in respect to the seizure of the Herzog and other German ships bound to Lorenzo-Marquez during the South African War, and Italy justified the seizure of the Doelurik on the same ground during her war with Abyssinia. In neither case were there two ocean voyages, the second of which was between neutral ports.

33 See, on this point, the review of English opinion in respect to the doctrine of continuous voyage in the April number of this JOURNAL, pp. 390-391.

34 Compare Grotius, Bk. Ill, Ch. I; Bynkershoe, Questiones Juris Pub., Bk. I, Ch. XI, and Vattel, Droit des Gens, Bk. Ill, § 117. On the antiquity of blockade as a war measure, see Bonfils, sees. 1612IT., and Westlake, Collected Papers, pp. 315-338.

35 For the views of a well-known German publicist, see Perels, Manuel de Droit Maritime Int., tr. by Arendt, pp. 270, 280.

36 Compare Rhodes, History of the United States from the Compromise of 1850, Vol. V, pp. 396-410.

37 Compare Atherly-Jones, Commerce in War, p. 92. This author says, "The purpose of a blockade is primarily, by depriving the inhabitants of the hostile state of all commercial intercourse by sea, with the rest of the world and thus subjecting it to privation, to coerce it to seek peace on terms acceptable to the other belligerent." To the same effect, see Calvo, Vol. V, sec. 2827

38 Droit Maritime International, Vol. II, p. 196. Compare, also, Gessner, he Droit des Neutres sur Mer, p. 168.

39 Collected Papers on Public International Law, pp. 314, 342.

40 Droit International Public, Vol. II, p. 449.

41 Le Droit Maritime de I'Europe, Vol. II, sec. 29.

42 Dispatch to Mr. Mason, June 27, 1859. Moore's Digest, Vol. VII, p. 781.

43 Lawrence's Wheaton, p. 822.

44 See, for example, the views of Bonfils, Droit Int. Public, sec. 1607; Bentwich, War and Private Property, p. 122; and Lawrence, Principles of International Law, p. 681.