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fact that the supply is one-sided, being furnished only to the enemies of Germany. The note, however, makes no mention of the fact that the law, which is admitted to be still in force, contains no discrimination as to the amount of munitions that may be properly furnished to any belligerent; nor does it take notice of the important fact that the onesidedness of the supply is due to no act or fault on the part of the United States, but is due solely to a vicissitude of war. The reply to this note is over the signature of W. J. Bryan.34 In it the Secretary expresses the opinion that this government, in view of the present indisputable doctrines of accepted international law, would regard the course suggested by the German Embassy as "an unjustifiable departure from the principle of strict neutrality, by which it has consistently sought to direct its actions;" and (the Secretary) respectfully submits that none of the circumstances urged in his excellency's memorandum alters the principle involved. To Mr. Bryan and his advisers is due the credit of adhering to the traditional view of the United States upon the matter in hand.
The second note of protest was issued by the Austro-Hungarian Minister for Foreign Affairs June 29, 1915, and was directed to United States Ambassador Penfield at Vienna.35 It practically concedes that the sale of munitions of war is strictly in conformity with the provisions of the Hague conventions; but states the case of Austria-Hungary as follows:
Although the Imperial and Royal Government is absolutely convinced that the attitude of the Federal Government (meaning the United States) emanates from no other intention than to maintain the strictest neutrality and to conform to the letter of the provisions of international treaties, nevertheless, the question arises whether the conditions as they have developed during the course of the war are not such as in effect to thwart the intentions of the Washington cabinet
and whether it would not seem possible, even imperative, that measures be adopted to maintain an attitude of strict parity with respect to both belligerent parties.
34 The Secretary of State to the German Ambassador, April 21, 1915,-gives views of U. S. regarding trade between U. S. and Germany and the exportation of arms.See Ibid., pp. 127-129.
35 The Austro-Hungarian Minister for Foreign Affairs to Ambassador Penfield, June 29, 1915,-asks U. S. to reconsider its attitude on traffic in munitions of war between U. S. and Great Britain and her allies. See Ibid., pp. 146–149.
The note goes on to say:
In reply to possible objections that, notwithstanding the willingness of American industry to furnish merchandise to Austria-Hungary and Germany, it is not possible for the United States of America to trade with Austria-Hungary and Germany, it may be pointed out that the Federal Government is undoubtedly in a position to improve the situation described.
The note suggests that the situation would be improved if an embargo were placed upon the exportation of munitions. The burden of this note, when baldly stated, is that the United States should restore to the Central Powers an advantage they have undoubtedly lost as the result of war by depriving the Allied Powers of an advantage they have undoubtedly gained as the result of war. It thus seeks to "improve the present situation," only so far as the Central Powers are concerned. In short, it calls upon the United States to violate its neutrality and depart from the accepted law of nations, by conferring a special benefit upon one of the belligerents.
The reply to this note was drawn by Secretary Lansing, and dispatched to Ambassador Penfield, at Vienna, August 12, 1915.36 This reply seems to furnish a complete answer to the position taken by the AustroHungarian Government, and to maintain with renewed force the traditional doctrine of international law strictly adhered to by the United States. It is, of course impossible, in this limited space to make even a superficial summary of this able document; and two or three of its main points only can here be noticed. Attention is first directed to the claim that the United States should abandon the long-recognized rules governing neutral traffic in time of war, and adopt measures, in the words of the Austro-Hungarian note, "to maintain an attitude of strict parity with respect to both belligerent parties.” Mr. Lansing says:
The recognition of an obligation of this sort would impose a duty upon every neutral nation to sit in judgment on the progress of a war, and to restrict its commercial intercourse with a belligerent whose
36 The Secretary of State to Ambassador Penfield, August 12, 1915,-instructed to inform Foreign Office of reason the U. S. cannot prohibit trade in contraband. See Ibid., pp. 166-171.
success prevented the neutral to trade with the enemy. The contention of the Imperial and Royal Government appears to be that the advantages gained to a belligerent should be equalized by the neutral Powers by the establishment of a system of non-intercourse with the victor.
The Secretary then calls attention to the attitude of the Central Powers themselves under circumstances similar to those now existing. He says:
During the Boer War between Great Britain and the South African Republics, the control of the coasts of neighboring neutral colonies by British naval vessels prevented arms and ammunition from reaching the Transvaal or the Orange Free State. The allied republics were in a situation almost identical in that respect with that in which AustriaHungary and Germany find themselves at the present time. Yet, in spite of the commercial isolation of one belligerent, Germany sold to Great Britain, the other belligerent, hundreds of thousands of kilos of explosives, gunpowder, cartridges, shot and weapons; and it is known that Austria-Hungary also sold similar munitions to the same purchaser.
Mr. Lansing thus indicates that the past practice of the Central Powers does not sustain their present contention. He also shows that
The general adoption by the nations of the world of the theory that neutral Powers ought to prohibit the sale of arms and ammunition to belligerents would compel every nation to have in readiness at all times sufficient munitions of war to meet any emergency which might arise, and maintain establishments for the manufacture of arms and ammunition sufficient to supply the needs of its military and naval forces throughout the progress of a war.
Such a practice he says, "would inevitably give the advantage to the belligerent which had encouraged the manufacture of munitions in time of peace" and that "the adoption of this theory would force militarism on the world." He closes his argument with these words:
The principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods for the adjustment of international differences, and, finally, neutrality itself, are opposed to the prohibition by a neutral nation of the exportation of arms, ammunition, or other munitions of war.
In summing up this discussion I think it has been shown: (1) that notwithstanding the comparatively recent development of the law of neutrality, the custom of regarding all neutral commerce as free, subject only to the belligerent right of confiscation in the case of hostile goods with a hostile destination, has existed at least from the seventeenth century.
(2) That this custom has been recognized by the Government of the United States as a rule of international law from the very beginning of its history until the present time.
(3) That this custom is a part of the general law of contraband, which is based upon the fact that the transportation of munitions of war is injurious only to one or the other of the belligerents, upon whom is conferred the legal means to prevent it; and is in no sense an injury to neutral states, which are therefore relieved from the obligation to prevent it.
(4) That the fact that one of the belligerents has, by a misfortune of war, been deprived from exercising his own belligerent right of intercepting contraband goods on their way to his enemy, does not justify the assumption of this belligerent right by a neutral Power for the sole benefit of the unfortunate belligerent.
(5) That the placing of an embargo on the sale of munitions of war under such circumstances would have the effect of assisting one belligerent at the expense of the other, and hence would be an unwarrantable interference with the progress of the war, and expose the neutral Power laying such an embargo to the charge of unneutrality; and,
(6) That the abolition of this custom would reverse the concurrent judgment of the world as expressed in the Hague Conventions, would impose new obligations and oppressive burdens upon every neutral state, would work a positive injustice to every country inadequately prepared for war and compel every nation to be sufficiently armed at all times to meet any possible attack,-a condition of things that would lead to a universal state of militancy and prove a misfortune to the world at large.
WILLIAM C. MOREY.
THE LEGALITY OF THE BLOCKADES INSTITUTED BY NA
POLEON'S DECREES, AND THE BRITISH ORDERS IN
No exhaustive study has, as yet, been made of the Napoleonic era with a view of determining the exact legal status of the blockades established by the British orders in council and the French decrees. It is the purpose of this work to point out the more salient features embodied in the principles of blockade during this period as set forth and laid down by the statesmen of the United States, Great Britain and France, together with their relations to the principles of international law. With this end in view, the treaties, conventions and diplomatic intercourse between the United States and these two foreign countries have been carefully studied. The opinions of statesmen and official legal counsel, as well as the diplomatic correspondence and the decisions of the admiralty courts must be accepted as, in a large measure, establishing the international principles upon which the legality of the various acts may be determined. Court decisions during this period, however, are too much influenced by expediency, made necessary by the demands of the times, to be unconditionally accepted as the last word on the legality of the points in question; but they will nevertheless be freely used.
But before entering into the discussion of the blockade after 1806 it will be necessary, first, to establish the generally accepted definition of what constituted a blockade prior to that time.
I. THE CONCEPTION OF BLOCKADE PRIOR TO 1806
The Russian proclamation of 1780 laid down the definition of a blockade as follows: "That the denomination of a blockaded port is to be given only to one which has the enemy vessels stationed sufficiently near to cause an evident danger to the attempt to enter." 1 This prin
· Wheaton, International Law, 297-298.