GREAT BRITAIN'S DEFENSE OF BLOCKADE—AMERICAN METHODS IN CIVIL WAR CITED

Issues with Great Britain interposed to engage the Administration's attention, in the brief intervals when Germany's behavior was not doing so, to the exclusion of all other international controversies produced by the war. In endeavoring to balance the scales between the contending belligerents, the United States had to weigh judicially the fact that their offenses differed greatly in degree. Germany's crimes were the wanton slaughter of American and other neutral noncombatants, Great Britain's the wholesale infringements of American and neutral property rights. Protests menacing a rupture of relations had to be made in Germany's case; but those directed to Great Britain, though not less forceful in tone, could not equitably be accompanied by a hint of the same alternative. Arbitration by an international court was the final recourse on the British issues. Arbitration could not be resorted to, in the American view, for adjusting the issues with Germany.

The Anglo-American trade dispute over freedom of maritime commerce by neutrals during a war occupied an interlude in the crisis with Germany. The dispatch of the third Lusitania note of July 21, 1915, promised a breathing spell in the arduous diplomatic labors of the Administration, pending Germany's response. But a few days later the Administration became immersed in Great Britain's further defense of her blockade methods, contained in a group of three communications, one dated July 24, and two July 31, 1915, in answer to the American protests of March 31, July 14, and July 15, 1915. The main document, dated July 24, 1915, showed both Governments to be professing and insisting upon a strict adherence to the same principles of international law, while sharply disagreeing on the question whether measures taken by Great Britain conformed to those principles.

The United States had objected to certain interferences with neutral trade Great Britain contemplated under her various Orders in Council. The legality of these orders the United States contested. Great Britain was notified by a caveat, sent July 14, 1915, that American rights assailed by these interferences with trade would be construed under accepted principles of international law. Hence prize-court proceedings based on British municipal legislation not in conformity with such principles would not be recognized as valid by the United States.

Great Britain defended her course by stating the premise that a blockade was an allowable expedient in war—which the United States did not question—and upon that premise reared a structure of argument which emphasized the wide gap between British and American interpretations of international law. A blockade being allowable, Great Britain held that it was equally allowable to make it effective. If the only way to do so was to extend the blockade to enemy commerce passing through neutral ports, then such extension was warranted. As Germany could conduct her commerce through such ports, situated in contiguous countries, almost as effectively as through her own ports, a blockade of German ports alone would not be effective. Hence the Allies asserted the right to widen the blockade to the German commerce of neutral ports, but sought to distinguish between such commerce and the legitimate trade of neutrals for the use and benefit of their own nationals. Moreover, the Allies forebore to apply the rule, formerly invariable, that ships with cargoes running a blockade were condemnable.

On the chief point at issue Sir Edward Grey wrote:

"The contention which I understand the United States Government now puts forward is that if a belligerent is so circumstanced that his commerce can pass through adjacent neutral ports as easily as through ports in his own territory, his opponent has no right to interfere and must restrict his measure of blockade in such a manner as to leave such avenues of commerce still open to his adversary.

"This is a contention which his Majesty's Government feel unable to accept and which seems to them unsustained either in point of law or upon principles of international equity. They are unable to admit that a belligerent violates any fundamental principle of international law by applying a blockade in such a way as to cut out the enemy's commerce with foreign countries through neutral ports if the circumstances render such an application of the principles of blockade the only means of making it effective."

In this connection Sir Edward Grey recalled the position of the United States in the Civil War, when it was under the necessity of declaring a blockade of some 3,000 miles of coast line, a military operation for which the number of vessels available was at first very small: "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 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 resources. 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 British lion we can fashion a bowstring which will give effective momentum to a counterbolt launched in the general direction of Downing Street."[Back to Contents]