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failure to prevent the British from acting on their enlarged conceptions of contraband.

Its terms affected to proclaim the British seas a war area," in which all British ships would be sunk at sight, and in which no neutral ship could therefore reckon on safety “on account of the uncertainties of naval war.”

Of course, as a blockade, this was ridiculous. It was hopelessly ineffective. It was not intended as a proclamation of blockade; but as an attempt to get the benefits of blockade in another way. Whatever we may think of the destruction of an enemy's merchant-ships without trial and without any attempt to save life, there can be no two opinions that to destroy neutral ships in this manner is flatly illegal. The Doggerbank case between England and Russia in 1905 shows that "accidental" destruction of neutral vessels is always and everywhere a wrong for which only prompt reparation and apology, coupled with security against repetition, can atone.

The British reply was to interdict all trade with Germany: and it was justified on the ground of retaliation. As a retaliation against an indefensible German atrocity, it is well capable of being sustained. But it strikes equally at neutrals, who are entitled by the law of nations to continue to trade with Germany. We have no right to retaliate upon them. In doing so, we commit precisely the old error of the Orders in Council of 1807, which it was thought had passed into the limbo of buried mistakes. Nothing did us more harm, for less corresponding good, than the pretension in 1807 to treat the ocean as a preserve, and to interdict neutral trade at our pleasure. It created the legend of a selfish Britain. "Illegality," says a warm admirer of Britain (Dr. T. A. Walker of Cambridge), "was met with illegality.” A sympathetic neutral like America was driven into non-intercourse and then into war. On 11th March, 1915, the Order in Council was made. It was not published until the 15th March.

The mysterious Order goes beyond even the Orders in Council of 1807, for it throws upon the judge of the court the fulfilment of a purely political function—the determination of what is to be done with the intercepted cargo or its proceeds. The court has nothing to guide it. The voyage was innocent: the terms on which the innocent neutral is to get back his goods, or such sum as they may have been disposed for, over his head, are to be such as the court thinks just. Is the court by penalties to discourage such voyages? Is it by penalties to discourage dilatoriness or recalcitrance on the part of neutrals? Is it to treat them more favorably according to the greater or less friendliness of their governments? If it is to make no such discriminations, why is the latitude left to it? If it is to make them, why is such a duty imposed on a judge of prize? He is dragged into the arena of state policy, when he ought to sit serene above it. George III never asked Sir W. Scott to pronounce on the conduct of neutrals. He told him flatly to condemn them if they traded with France. That was a clear proposition of fact, capable of precise ascertainment: in short, a question for a judge. Questions of how to deal with neutrals in one or another set of circumstances are questions, not for a court, but for a Cabinet.

The American note of March treated the measure as a blockade, which it did not pretend to be (though the British Cabinet now seems inclined to justify as it such), and hoped that it would be kept within the accustomed limits of blockade, which there was no reason to suppose it would. The United States Government appeared to be pleased with the unjudicial latitude entrusted to the judge. But though it is well to leave it to a judge to apply the law to new facts, it is not well to leave it to him to make new law to the government's piping.

Mr. Page, the American Ambassador, has signalized other ambiguous features of the Order. What is meant by the "produce" of Germany? Is a packet of dye, made in Germany, the "produce” of Germany after it has been the subject of a bona fide sale and actual completed delivery to an Italian firm, and is then exported by them from Italy? What is an enemy "destination"? an immediate definite enemy purchaser?— an immediate enemy market?—or a possible hypothetical enemy use? How can innocent neutral goods be “requisitioned" 3 under the bare authority of an Order in Council?

No one can say. That may be why the Government have left such a free hand to the judge. Perhaps he is expected to appraise the conduct of neutrals somewhat as he apportions the degree of blame in a collision case—and to find them conformably with the directness of 3 Cf. the cases of the Antares and the Zamora, 31 Times Law Reports, pp. 290, 513.







their intercourse. But the whole diliquescent proceeding, afraid of direct and plain statement, sheltering itself under the skirts of the court, and hiding the policy of the statesman behind the robe of the judge, is characteristic of our age. We have no Castlereagh: nor even a Perceval. The only unambiguous feature of the Order is that it finally abandons all pretence at observing the terms of the Declaration of Paris. “Every merchant vessel

carrying goods which are enemy property, may be required to discharge such goods in a British or allied port. Any goods so discharged

shall, if not requisitioned for the use of His Majesty, be restored by order of the court, upon such terms as the court may in the circumstances deem to be just, to the person entitled thereto." It is inconceivable that the court, after enemy property has carefully been brought under its jurisdiction, will “consider it just " with equal care to let it go again. If the provision means anything, it means that enemy goods will no longer be safely laden on a neutral ship. There is no doubt that they will be requisitioned or sequestrated, and that so long as the war lasts, they will not be paid for. So the Declaration of Paris follows the Declaration of London into the sphere of ancient history and the neutral flag no longer "covers" enemy property.

Lord Crewe's declaration, made on December 21, 1915, to the effect that the Order only meant that, “subject to the accepted principles of international law, every conceivable effort would be made to prevent goods that mattered entering or leaving Germany,” and that “surely no one can imagine that when Mr. Asquith said that goods of all kinds should be kept out of Germany, he meant to tear to ribbons all the accepted rules of international law,” can only evoke respectful wonder. If the Order was only meant as a vigorous affirmation of the ordinary law, it was certainly not calculated to be so interpreted.





Although the development of international law has tended more and more to confine the operations of war to such as are directed against the armed forces of the belligerents and to relieve the peaceful population from their immediate effects, nevertheless a number of practices employed principally for the purpose of bringing economic pressure to bear upon the general mass of enemy non-combatants, still survive in full vigor and are well recognized as legitimate. One of the most important of this class of operations is blockade. The end of blockade is to cut off trade and intercourse with specified ports or with a specified coast line in possession of the enemy.

There have been a few expressions to the effect that a blockade must be limited to particular ports. This doctrine was enunciated by Monroe in 1816 ? and by Clayton in 1849. It is, however, a principle now unanimously accepted by writers on international law that a blockade may extend to an entire coast line. The Civil War blockade, which affected 3000 miles of coast and the legality of which is unquestioned, set at rest whatever doubt there was upon this subject.

The fundamental principle governing blockades is that a blockade in order to be binding must be effective. This rule was formulated in the Declaration of Paris of 1856 in the following language: “Blockades in order to be binding must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of an enemy.” It will be noticed that this statement is somewhat indefinite and that there is no attempt to explain in detail what is necessary to constitute "a force sufficient really to prevent access to the coast of an enemy.” This question has given rise to considerable debate and has resulted in

Monroe to de Onis, March 20, 1816, Moore's Dig., VII, 789–790.
· Clayton to Flennicken, May 12, 1849, Moore's Dig., VII, 791-792.

• Woolsey, 342; Calvo, V, 88 2865–2867; Ortolan, Règles internationales et diplomatie de la mer, II, 332; Hautefeuille, Des droits et des devoirs des nations neutres en temps de Guerre Maritime, II, 195; Heffter, 341.



two divergent views, one known as the Continental and the other as the Anglo-American. The extreme Continental doctrine, championed particularly by French publicists, requires the blockading ships to be permanently anchored in the immediate offing of the ports to be affected, and the distance between the ships to be such as to subject to cross fire any vessel attempting to pass the line of blockade. Fauchille goes still further and advances the theory that a blockade is not really effective unless the stationary squadron is supported by a cruising squadron for the purposes of warning and making captures. The doctrine that a blockading force must be a stationary and not a cruising squadron also receives some support in the expressions of American statesmen of the early nineteenth century. Thus this idea is espoused by Monroe.

The Declaration of Paris, however, which must be regarded as the authoritative enunciation of the principles of international law governing the efficacy of blockades, furnishes no foundation for the so-called Continental theory that a blockade is not effective unless maintained by a stationary squadron whose ships are anchored sufficiently near each other to subject to cross fire any vessel attempting to pass. The Declaration requires merely a force sufficient really to prevent access to the blockaded coast. What constitutes such a force is a question of fact to be determined by the circumstances of each individual case. This is recognized by the Declaration of London of 1909, which provides in Article 3 of the portion of the Declaration relating to blockades, that “the question whether a blockade is effective is a question of fact.” Manifestly, a cruising squadron may be quite as efficient in attaining the result as stationary ships. The Continental doctrine thus forms an unwarranted extension of the requirements imposed by the Declaration of Paris. This fact is recognized even by some Continental writers.

The Anglo-American view is to the effect that a blockade may be maintained by cruisers. This principle is sustained by the practice of

* Hautefeuille, II, 195. See Hall (6th ed.), 704–706.
5 Du Blocus Maritime, 130–131.
6 Moore's Dig., VII, 789–790.
? Nys, III, 181; Ortolan, 332.

8 Westlake, II, 264-5; Hall (6th ed.), 704-6; Oppenheim (2d ed.), II, 462; The Olinde Rodrigues (1898), 174 U. S. 510.


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