blockade. The justification of these rules, so serious to neutrals, is the acknowledged right of belligerents to bring pressure on the enemy by curtailing or stopping all trade in all commodities whatsoever to or from ports of the enemy, apart altogether from any direct relation of the trade or goods to immediate war uses. In the region of blockade changes in the rules have also been established which have involved, of necessity, substantial increases in the degree to which neutral commerce has suffered.

For a long time it was deemed necessary to prove a strict blockade of particular ports by war vessels which were stationary or remained in sufficiently close proximity to the ports. But now what is known as commercial blockades are fully recognized.

I now leave the first of the three main questions, with the expression of my view that if it is permissible in the circumstances of the present war, and in view of the enemy's conduct, to allow by way of retaliation any extension of the powers of a belligerent at sea for the restriction of the commerce of the enemy, it does not appear to me that the Order in Council proceeds upon any principle inconsistent with or essentially contrary to those already embodied in the law of nations.

The Leonora and Other Vessels, [1918] P. 182, 202-204, 206, 208, VII LI. Pr. Cas. 262, 300-307.

When testifying before the Senate Committee on Foreign Relations on the proposed Neutrality Act of 1936, Secretary Hull said with respect to the war of 1914-18:

Under these new conditions, belligerents in control at sea proceeded to declare war zones, or blockades, covering vast areas of the seas contiguous both to belligerent and to neutral countries, and to make use of floating mines, ships, submarines, and aircraft. Then, in turn, the opposing belligerent would seek on paper and in other ways to put on a retaliatory blockade, to declare a retaliatory war zone, which would cover still other vast areas of the enemy's and neutral's harbors, or the seas surrounding the enemy, with the result that these expedients comprising either paper or actual blockades, either paper or actual war zones, were spread out over areas of hundreds of miles, and if a neutral vessel was struck by a torpedo or floating mine within such areas, or was damaged by a vessel of a belligerent, it had been warned to stay out. So there was a serious dispute about what had theretofore been rights of neutrals to trade with neutrals. The least controversy arose over trade directly with belligerents.

The nation in control of the seas, before the war ended, dominated almost every_dollar's worth of commerce between neutrals and any part of Europe. That was through the expanding of the whole doctrine of contraband and also the doctrine of continuous voyage, and, furthermore, through curtailing other rights of neutrals. In other words, nearly all of

what had theretofore been the ordinary rules of neutrality and neutral rights were more or less set aside, so that when the war ended there was in several respects virtual chaos so far as neutral rights were concerned.

Hearings before the Senate Committee on Foreign Relations, 74th Cong., 2d sess., Jan. 10, 1936, on S. 3474 regarding Neutrality, pp. 11, 12. See also Neutrality, Its History, Economics and Law: vol. III, The World War Period (Turlington, 1936), pp. 149-150.

"... Now it must be clear in particular in the light of the problems and controversies raised by the World War, that there is at present no generally agreed prize law in regard to some of its most important aspects. The controversy as to the legality or otherwise of the conduct of war in this sphere by the Allied Powers is still raging. The various Governments have since maintained their respective, and widely divergent, positions. It would not therefore, it is believed, be consistent with the function of an impartial science of International Law to maintain that there exists at present a working body of generally agreed rules of prize law, in particular in its bearing upon the rights and duties of neutrals. Historically prize law has been, in this matter, a compromise between two conflicting principles: the freedom of neutral trade and the right of the belligerent to prevent such commerce with the opposing party as might be of military advantage to the latter. Internationai Law has not evolved any overriding principle reconciling these claims in cases when they show a tendency to conflict. The compromise has frequently been the function of the relative military and political strength of the belligerents and neutrals. This absence of an overriding principle shows itself in the hitherto unsolved difficulty, which proved of crucial importance during the World War, of answering the question as to whether the belligerents or the neutrals ought to bear the brunt of the changed conditions of modern warfare." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 736-737. Sir Arthur Salter, the Secretary to the Allied Maritime Transport Council and Chairman of the Allied Maritime Transport Executive, wrote:

"Immediately on the outbreak of war an Examination Service was established at Kirkwall, the Downs, Port Said, and Gibraltar, and the North Sea between the Orkneys and Norway was patrolled. Merchant vessels were brought into port and examined there, for boarding and search at sea were rendered dangerous by submarines, and officers afloat could not be kept adequately informed of the intricate developments in policy. The Examining Officers in the ports acted under direct, and constantly more stringent, orders from London as to the vessels and cargoes which they were to seize or release. In London the work of translating the developing policy into detailed rules and orders was undertaken by a Contraband Committee representing the Admiralty and the Foreign Office.

"Naval seizure and search was, however, only one, and in time perhaps not the most important instrument, of the blockade. Throughout the war the Foreign Office were supplementing it by elaborate and very effective agreements with neutral countries, by which, in return for permission to import themselves, they undertook to control export to Germany. There was throughout competitive pressure on the contiguous northern neutrals by Germany, who could threaten to invade them, and by the Allies who could withhold many vital supplies. In this competition the balance inclined gradually on the side of the Allies, and the Allied agreements became more and more complete. It was nearly a year, however, before the

blockade became really effective. In the early months supplies of all kinds, except finished munitions, flowed abundantly into Germany. Merchants had learnt how to send 'conditional contraband' through the contiguous neutrals. The diplomatic position, both with these neutrals and America, was making more drastic action difficult; but it was evident that without it the blockade might almost as well be abandoned.

"Germany's declaration, however, that after February 1915 she would instruct her submarines to attack all merchant vessels in British waters, created an outburst of indignation in neutral countries, which Great Britain at once used to make the blockade comprehensive. In the Reprisals Order of March 11, 1915, she announced her intention to stop all goods of enemy origin or destination, and proceeded henceforth to stop supplies intended for Germany, without regard to the distinction of the earlier contraband rules or to the fact that the supplies might be consigned through a neutral port. Even this, however, was not enough. It was useless to prohibit every cargo of food destined for Germany, whether sent through contiguous neutral countries or not, if these neutral countries could themselves import freely for their own uses, and with the sufficiency so obtained, export their own produce to Germany by routes which the Allies could not control. This was the reason for the 'rationing' policy, which was begun in 1915, and subsequently became the central feature in the whole blockade system. Detailed statistics were compiled as to the pre-war imports and consumption of all the neutral countries which had uncontrolled access to Germany; and only enough war imports were allowed to give a bare sufficiency for internal consumption. The neutral countries were therefore compelled to adopt internal rationing measures, so that the system of official control extended over almost the whole world-neutral and belligerent alike."

J. A. Salter, Allied Shipping Control (1921) 90-100. See also the British statement of Jan. 1916 as to measures adopted to intercept German sea-borne commerce, Gt. Br., Parliamentary Papers, Miscellaneous No. 2 (1916), Cd. 8145; 110 Br. & For. St. Paps. 98.

On September 10, 1939 the British Ambassador informed the Department of State as follows:

controls,
war of 1939

His Majesty's Government in the United Kingdom in- Allied tend to use their best endeavours to facilitate innocent neutral trade so far as is consonant with their determination to prevent contraband goods reaching the enemy. They will be compelled to use their belligerent rights to the full, but they will at all times be ready to consider sympathetically any suggestions put forward by neutral governments designed to facilitate their bona fide trade.

In order to secure their objects, His Majesty's Government have established contraband control bases at Weymouth, Ramsgate, Kirkwall, Gibraltar and Haifa. Vessels bound for enemy territory or neutral ports affording convenient means of access thereto are urgently advised to call voluntarily at the appropriate base, in order that their papers may be examined, and that, when it has been established that they are not carrying contraband of war, they may be given a pass to facilitate the remainder of their voyage. Any vessel which does not call vol

untarily will be liable to be diverted to a Contraband Control base if an adequate search by His Majesty's ships at sea is not practicable.

Every effort will be made to expedite the examination of vessels, particularly those which call voluntarily for the purpose.

The British Ambassador (Lord Lothian) to the Secretary of State (Hull), Sept. 10, 1939, MS. Department of State, file 740.00112 European War 1939/45.

The following statement was made to the British Embassy by the Department of State in September 1939:

1. We have noted the statement in the Embassy's note of September 10, that it is the intention of the British Government "to use their best endeavors to facilitate innocent neutral trade so far as is consonant with their determination to prevent contraband goods reaching the enemy."

2. This Government on its part desires that its trade with neutral countries proceed with the least possible disturbance due to the existence of a state of war in Europe. As regards trade of neutral countries (in particular the so-called northern neutrals) with the United States, it should be fully understood, as has already been publicly announced, that this Government reserves all rights of the United States and its nationals under international law and is not to be understood as endorsing any principle of interference with trade of genuine neutral character.

Quoted in telegram 1117, Secretary Hull to Ambassador Kennedy, Sept. 29, 1939, MS. Department of State, file 740.00112 European War 1939/203A: In Dec. 1939 the American commercial attaché in Great Britain explained as follows the British practice in detaining cargoes bound for Europe:

"... The Ministry of Economic Warfare is concerned in the first instance with only two questions: the character of the goods and the character of the consignee.

"If ... the goods are of such a nature that there is danger that the goods might be sent on to Germany and thus give comfort and assistance to the enemy, either by the export of the goods themselves or by the release of other commodities for export to Germany, then the goods are submitted to closer inspection and the character of the consignee comes into question. If the character of the consignee is such that the British Government is satisfied that he will not ship the goods to Germany, then the goods are released. This is accomplished sometimes by a guarantee given by the firm, sometimes by a guarantee given by the neutral country to which the goods are consigned, sometimes by both. The fact however that such guarantees are given is not in itself sufficient in many cases to cause the release of the goods.

...

"... Based, therefore, on information from all sources which is presented to the Contraband Committee of the Ministry of Economic Warfare when the ships manifest is being studied, a decision is made to do one of two things: detain the goods or seize the goods. Careful distinction should be made in cables and elsewhere between the words 'detention' and

'seizure'. If the Ministry of Economic Warfare decides under the powers given it by Parliament to detain the goods they are simply held pending further investigation. In this connection the Ministry of Economic Warfare maintains stoutly the right to detain merchandise which comes into or is brought into the Control Base without having any proof at all that the goods will be reexported to Germany or that they will release other goods which will be reexported to Germany. When goods are so detained the steamship usually is given the option of carrying the goods on to destination under the so-called 'Black Diamond' guarantee. This is sonamed because during the first days of the war the steamer 'Black Diamond' had on board goods which were detained but the steamship's owners gave a guarantee that they would assume responsibility for returning the goods to the United Kingdom in case the Ministry of Economic Warfare ultimately decided to seize them; that in order to avoid delay and allow the ship to carry out her regular itinerary they would in the meantime take the goods on to their destination, unload them on the dock in the foreign port and leave them there. Then if the goods were later declared seized they would either bring the goods back on one of their own boats or by some other means of transportation at the expense of the line. This is now a common form of practice. If the goods are seized then they pass from the jurisdiction of the Ministry of Economic Warfare into the jurisdiction of the Prize Court of the Admiralty, at the head of which is the Procurator General

...

"Until the goods have been declared seized they have not strictly speaking entered into the orbit of British jurisprudence and this Embassy, in common with other Embassies and Legations, may take up the matter direct with the Ministry of Economic Warfare, in accordance with the decision of the British Government itself, but the minute the goods become seized the Embassy cannot appear before the Prize Court or take up the matter with the Procurator General, and such representation must be done by the owners or parties having interest in the seized goods."

The commercial attaché (Dye) to the Secretary of State (Hull), no. 4196, Dec. 20, 1939, MS. Department of State, file 300.115 (39) McFadden and Bro. Geo. H./85.

declaration of war

In connection with its military operations against China, con- Before ducted without declaration of war, the Japanese Government announced a blockade of a portion of the Chinese coast against all Chinese vessels, effective August 25, 1937. It stated that vessels of other states would only be stopped and boarded to verify their nationality. Other areas were later blockaded. The United States Government was of the opinion that, under the circumstances, Japanese war vessels had no legal right to interfere even to this extent with American vessels on the high seas. (China declared war against Japan on December 9, 1941.)

MS. Department of State, file 793.94/9721; the Consul General at Shanghai (Gauss) to the Secretary of State (Hull), telegram 657, Sept. 5, 1937, ibid. 793.94112/27; the Ambassador to Japan (Grew) to Mr. Hull, telegram 345, Sept. 5, 1937, ibid. /29; and see ibid. /9.