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“It was vital to the cause of the United States in that great struggle that they should be able to cut off the trade of the Southern States. The Confederate armies were dependent on supplies from overseas, and those supplies could not be obtained without exporting the cotton wherewith to pay for them.

"To cut off this trade the United States could only rely upon a blockade. The difficulties confronting the Federal Government were in part due to the fact that neighboring neutral territory afforded convenient centers from which contraband could be introduced into the territory of their enemies and from which blockade running could be facilitated.

"In order to meet this new difficulty the old principles relating to contraband and blockade were developed, and the doctrine of continuous voyage was applied and enforced, under which goods destined for the enemy territory were intercepted before they reached the neutral ports from which they were to be reexported. The difficulties which imposed upon the United States the necessity of reshaping some of the old rules are somewhat akin to those with which the Allies are now faced in dealing with the trade of their enemy."

Though an innovation, the extension of the British blockade to a surveillance of merchandise passing in and out of a neutral port contiguous to Germany was not for that reason impermissible. Thus that preceded the British contention, which, moreover, recognized the essential thing to be observed in changes of law and usages of war caused by new conditions was that such changes must “conform to the spirit and principles of the essence of the rules of war." The phrase was cited from the American protest by way of buttressing the argument to show that the United States itself, as evident from the excerpt quoted, had freely made innovations in the law of blockade within this restriction, but regardless of the views or interests of neutrals. These American innovations in blockade methods, Great Britain maintained, were of the same general character as those adopted by the allied powers, and Great Britain, as exemplified in the Springbok case, had assented to them. As to the American contention that there was a lack of written authority for the British

C-War St. 5

innovations or extensions of the law of blockade, the absence of such pronouncements was deemed unessential. Sir Edward Grey considered that the function of writers on international law was to formulate existing principles and rules, not to invent or dictate alterations adapting them to altered circumstances.

So, to sum up, the modifications of the old rules of blockade adopted were viewed by Great Britain as in accordance with the general principles on which an acknowledged right of blockade was based. They were not only held to be justified by the exigencies of the case, but could be defended as consistent with those general principles which had been recognized by both governments.

The United States declined to accept the view that seizures and detentions of American ships and cargoes could justifiably be made by stretching the principles of international law to fit war conditions Great Britain confronted, and assailed the legality of the British tribunals which determined whether such seizures were prizes. Great Britain had been informed:

"... 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 order 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 under international law.

British prize-court proceedings had been fruitful of bitter grievances to the State Department from the American merchants affected. Sir Edward Grey pointed out that American interests had this remedy in challenging prize-court verdicts:

"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 considers 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."

One complaint of the United States, made on July 15, 1915, had been specifically directed to the action of the British naval authorities in seizing the American steamer Neches, sailing from Rotterdam to an American port, with a general cargo.

The ground advanced to sustain this action was that the goods originated in part at least in Belgium, and hence came within the Order in Council of March 11, 1915, which stipulated that every merchant vessel sailing from a port other than a German port, carrying goods of enemy origin, might be required to discharge such goods in a British or allied port. The Neches had been detained at the Downs and then brought to London. Belgian goods were viewed as being of "enemy origin," because coming from territory held by Germany. This was the first specific case of the kind arising under British Orders in Council affecting American interests, the goods being consigned to United States citizens.

Great Britain on July 31, 1915, justified her seizure of the Neches as coming within the application of her extended blockade, as previously set forth, which with great pains she had sought to prove to the United States was permissible, under international law. Her defense in the Neches case, however, was viewed as weakened by her citing Germany's violations of international law to excuse her extension of old blockade principles to the peculiar circumstances of the present war. In intimating that so long as neutrals tolerated the German submarine warfare, they ought not to press her to abandon blockade measures that were a consequence of that warfare, Great Britain was regarded as lowering her defense toward the level of the position taken by Germany. Sir Edward Grey's plan was thus phrased :

"His Majesty's Government are not aware, except from the published correspondence between the United States and Germany, to what extent reparation has been claimed from Germany by neutrals for loss of ships, lives, and cargoes, nor how far these acts have been the subject even of protest by the neutral governments concerned.

“While these acts of the German Government continue, it seems neither reasonable nor just that His Majesty's Government should be pressed to abandon the rights claimed in the British note and to allow goods from Germany to pass freely through waters effectively patrolled by British ships of war."

Such appeals the American Government had sharply repudiated in correspondence with Germany on the submarine issue. Great Britain, however, unlike Germany, did not admit that the blockade was a reprisal, and therefore without basis of law, on the contrary, she contended that it was a legally justifiable measure for meeting Germany's illegal acts.

The British presentation of the case commanded respect, though not agreement, as an honest endeavor to build a defense from basic facts and principles by logical methods. One commendatory view, while not upholding the contentions, paid Sir Edward Grey's handling of the British defense a generous tribute, albeit at the expense of Germany:

"It makes no claim which offends humane sentiment or affronts the sense of natural right. It makes no insulting proposal for the barter or sale of honor, and it resorts to no tricks or evasions in the way of suggested compromise. It seeks in no way to enlist this country as an auxiliary to the allied cause under sham pretenses of humane intervention."

The task before the State Department of making a convincing reply to Sir Edward Grey's skillful contentions was generally regarded as one that would test Secretary Lansing's legal re

The problem was picturesquely sketched by the New York "Times" :

"The American eagle has by this time discovered that the shaft directed against him by Sir Edward Grey was feathered with his own plumage. To meet our contentions Sir Edward cites our own seizures and our own court decisions. It remains to be seen whether out of strands plucked from the mane and tail of the

sources.

British lion we can fashion a bowstring which will give effective momentum to a counterbolt launched in the general direction of Downing Street."

CHAPTER V

BRITISH BLOCKADE DENOUNCED AS ILLEGAL AND INEFFECTIVE BY THE UNITED STATES—THE AMERICAN

POSITION

SEO

ECRETARY Lansing succeeded in accomplishing the diffi

cult task indicated at the conclusion of the previous chapter. The American reply to the British notes was not dispatched until October 21, 1915, further friction with Germany having intervened over the Arabic. It constituted the long-deferred protest which ex-Secretary Bryan vainly urged the President to make to Great Britain simultaneously with the sending of the third Lusitania note to Germany. The President declined to consider the issues on the same footing or as susceptible to equitable diplomatic survey unless kept apart.

The note embraced a study of eight British communications made to the American Government in 1915 up to August 13, relating to blockade restrictions on American commerce imposed by Great Britain. It had been delayed in the hope that the announced intention of the British Government “to exercise their belligerent rights with every possible consideration for the interest of neutrals," and their intention of "removing all causes of avoidable delay in dealing with American cargoes," and of causing “the least possible amount of inconvenience to persons engaged in legitimate trade," as well as their "assurance to the United States Government that they would make it their first aim to minimize the inconveniences" resulting from the "measures taken by the allied governments," would in practice not unjustifiably infringe upon the neutral rights of American citizens engaged in trade and commerce. The hope had not been realized.

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