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

Secretary Lansing succeeded in accomplishing the difficult 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. The detentions of American vessels and cargoes since the opening of hostilities, presumably under the British Orders in Council of August 20 and October 29, 1914, and March 11, 1915, formed one specific complaint. In practice these detentions, the United States contended, had not been uniformly based on proofs obtained at the time of seizure. Many vessels had been detained while search was made for evidence of the contraband character of cargoes, or of intention to evade the nonintercourse measures of Great Britain. The question became one of evidence to support a belief—in many cases a bare suspicion—of enemy destination or of enemy origin of the goods involved. The United States raised the point that this evidence should be obtained by search at sea, and that the vessel and cargo should not be taken to a British port for the purpose unless incriminating circumstances warranted such action. International practice to support this view was cited. Naval orders of the United States, Great Britain, Russia, Japan, Spain, Germany, and France from 1888 to the opening of the present war showed that search in port was not contemplated by the government of any of these countries.

Great Britain had contended that the American objection to search at sea was inconsistent with American practice during the Civil War. Secretary Lansing held that the British view of the American sea policy of that period was based on a misconception:

"Irregularities there may have been at the beginning of that war, but a careful search of the records of this Government as to the practice of its commanders shows conclusively that there were no instances when vessels were brought into port for search prior to instituting prize court proceedings, or that captures were made upon other grounds than, in the words of the American note of November 7, 1914, evidence found on the ship under investigation and not upon circumstances ascertained from external sources."

Great Britain justified bringing vessels to port for search because of the size and seaworthiness of modern carriers and the difficulty of uncovering at sea the real transaction owing to the intricacy of modern trade operations. The United States submitted that such commercial transactions were essentially no more complex and disguised than in previous wars, during which the practice of obtaining evidence in port to determine whether a vessel should be held for prize-court proceedings was not adopted. As to the effect of size and seaworthiness of merchant vessels upon search at sea, a board of naval experts reported:

"The facilities for boarding and inspection of modern ships are in fact greater than in former times, and no difference, so far as the necessities of the case are concerned, can be seen between the search of a ship of a thousand tons and one of twenty thousand tons, except possibly a difference in time, for the purpose of establishing fully the character of her cargo and the nature of her service and destination."

The new British practice, which required search at port instead of search at sea, in order that extrinsic evidence might be sought (i.e., evidence other than that derived from an examination of the ship at sea), had this effect:

"Innocent vessels or cargoes are now seized and detained on mere suspicion while efforts are made to obtain evidence from extraneous sources to justify the detention and the commencement of prize proceedings. The effect of this new procedure is to subject traders to risk of loss, delay and expense so great and so burdensome as practically to destroy much of the export trade of the United States to neutral countries of Europe."

The American note next assailed the British interpretation of the greatly increased imports of neutral countries adjoining Great Britain's enemies. These increases, Sir Edward Grey contended, raised a presumption that certain commodities useful for military purposes, though destined for those countries, were intended for reexportation to the belligerents, who could not import them directly. Hence the detention of vessels bound for the ports of those neutral countries was justified. Secretary Lansing denied that this contention could be accepted as laying down a just and legal rule of evidence:

"Such a presumption is too remote from the facts and offers too great opportunity for abuse by the belligerent, who could, if the rule were adopted, entirely ignore neutral rights on the high seas and prey with impunity upon neutral commerce. To such a rule of legal presumption this Government cannot accede, as it is opposed to those fundamental principles of justice which are the foundation of the jurisprudence of the United States and Great Britain."

In this connection Secretary Lansing seized upon the British admission, made in the correspondence, that British exports to those neutral countries had materially increased since the war began. Thus Great Britain concededly shared in creating a condition relied upon as a sufficient ground to justify the interception of American goods destined to neutral European ports. The American view of this condition was:

"If British exports to those ports should be still further increased, it is obvious that under the rule of evidence contended for by the British Government, the presumption of enemy destinations could be applied to a greater number of American cargoes, and American trade would suffer to the extent that British trade benefited by the increase. Great Britain cannot expect the United States to submit to such manifest injustice or to permit the rights of its citizens to be so seriously impaired.

"When goods are clearly intended to become incorporated in the mass of merchandise for sale in a neutral country it is an unwarranted and inquisitorial proceeding to detain shipments for examination as to whether those goods are ultimately destined for the enemy's country or use. Whatever may be the conjectural conclusions to be drawn from trade statistics, which, when stated by value, are of uncertain evidence as to quantity, the United States maintains the right to sell goods into the general stock of a neutral country, and denounces as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground that it suspects that the previous supply of such goods in the neutral country, which the imports renew or replace, has been sold to an enemy. That is a matter with which the neutral vendor has no concern and which can in no way affect his rights of trade."

The British practice had run counter to the assurances Great Britain made in establishing the blockade, which was to be so extensive as to prohibit all trade with Germany or Austria-Hungary, even through the ports of neutral countries adjacent to them. Great Britain admitted that the blockade should not, and promised that it would not, interfere with the trade of countries contiguous to her enemies. Nevertheless, after six months' experience of the "blockade," the United States Government was convinced that Great Britain had been unsuccessful in her efforts to distinguish between enemy and neutral trade.

The United States challenged the validity of the blockade because it was ineffective in stopping all trade with Great Britain's enemies. A blockade, to be binding, must be maintained by force sufficient to prevent all access to the coast of the enemy, according to the Declaration of Paris of 1856, which the American note quoted as correctly stating the international rule as to blockade that was universally recognized. The effectiveness of a blockade was manifestly a question of fact:

"It is common knowledge that the German coasts are open to trade with the Scandinavian countries and that German naval vessels cruise both in the North Sea and the Baltic and seize and bring into German ports neutral vessels bound for Scandinavian and Danish ports. Furthermore, from the recent placing of cotton on the British list of contraband of war it appears that the British Government had themselves been forced to the conclusion that the blockade is ineffective to prevent shipments of cotton from reaching their enemies, or else that they are doubtful as to the legality of the form of blockade which they have sought to maintain."

Moreover, a blockade must apply impartially to the ships of all nations. The American note cited the Declaration of London and the prize rules of Germany, France, and Japan, in support of that principle. In addition, "so strictly has this principle been enforced in the past that in the Crimean War the Judicial Committee of the Privy Council on appeal laid down that if belligerents themselves trade with blockaded ports they cannot be regarded as effectively blockaded. (The Franciska, Moore, P. C. 56). This decision has special significance at the present time since it is a matter of common knowledge that Great Britain exports and reexports large quantities of merchandise to Norway, Sweden, Denmark, and Holland, whose ports, so far as American commerce is concerned, she regards as blockaded."

Finally, the law of nations forbade the blockade of neutral ports in time of war. The Declaration of London specifically stated that "the blockading forces must not bar access to neutral ports or coasts." This pronouncement the American Government considered a correct statement of the universally accepted law as it existed to-day and prior to the Declaration of London. Though not regarded as binding upon the signatories because not ratified by them, the Declaration of London, the American note pointed out, had been expressly adopted by the British Government, without modification as to blockade, in the Order in Council of October 9, 1914. More than that, Secretary Lansing recalled the views of the British Government "founded on the decisions of the British Courts," as expressed by Sir Edward Grey in instructing the British delegates to the conference which formulated the Declaration of London, and which had assembled in that city on the British Government's invitation in 1907. These views were:

"A blockade must be confined to the ports and coast of the enemy, but it may be instituted of one port or of several ports or of the whole of the seaboard of the enemy. It may be instituted to prevent the ingress only, or egress only, or both."

The United States Government therefore concluded that, measured by the three universally conceded tests above set forth, the British policy could not be regarded as constituting a blockade in law, in practice, or in effect. So the British Government was notified that the American Government declined to recognize such a "blockade" as legal.

Stress had been laid by Great Britain on the ruling of the Supreme Court of the United States on the Springbok case. The ruling was that goods of contraband character, seized while going to the neutral port of Nassau, though actually bound for the blockaded ports of the South, were subject to condemnation. Secretary Lansing recalled that Sir Edward Grey, in his instruction to the British delegates to the London conference before mentioned, expressed this view of the case, as held in England prior to the present war:

"It is exceedingly doubtful whether the decision of the Supreme Court was in reality meant to cover a case of blockade running in which no question of contraband arose. Certainly if such was the intention the decision would pro tanto be in conflict with the practice of the British courts. His Majesty's Government sees no reason for departing from that practice, and you should endeavor to obtain general recognition of its correctness."

The American note also pointed out that "the circumstances surrounding the Springbok case were essentially different from those of the present day to which the rule laid down in that case is sought to be applied. When the Springbok case arose the ports of the confederate states were effectively blockaded by the naval forces of the United States, though no neutral ports were closed, and a continuous voyage through a neutral port required an all sea voyage terminating in an attempt to pass the blockading squadron."

Secretary Lansing interjected new elements into the controversy in assailing as unlawful the jurisdiction of British prize courts over neutral vessels seized or detained. Briefly, Great Britain arbitrarily extended her domestic law, through the promulgation of Orders in Council, to the high seas, which the American Government contended were subject solely to international law. So these Orders in Council, under which the British naval authorities acted in making seizures of neutral shipping, and under which the prize courts pursued their procedure, were viewed as usurping international law. The United States held that Great Britain could not extend the territorial jurisdiction of her domestic law to cover seizures on the high seas. A recourse to British prize courts by American claimants, governed as those courts were by the same Orders in Council which determined the conditions under which seizures and detentions were made, constituted in the American view, the form rather than the substance of redress: "It is manifest, therefore, that, if prize courts are bound by the laws and regulations under which seizures and detentions are made, and which claimants allege are in contravention of the law of nations, those courts are powerless to pass upon the real ground of complaint or to give redress for wrongs of this nature. Nevertheless, it is seriously suggested that claimants are free to request the prize court to rule upon a claim of conflict between an Order in Council and a rule of international law. How can a tribunal fettered in its jurisdiction and procedure by municipal enactments declare itself emancipated from their restrictions and at liberty to apply the rules of international law with freedom? The very laws and regulations which bind the court are now matters of dispute between the Government of the United States and that of His Britannic Majesty."

The British Government, in pursuit of its favorite device of seeking in American practice parallel instances to justify her prize-court methods, had contended that the United States, in Civil War contraband cases, had also referred foreign claimants to its prize courts for redress. Great Britain at the time of the American Civil War, according to an earlier British note, "in spite of remonstrances from many quarters, placed full reliance on the American prize courts to grant redress to the parties interested in cases of alleged wrongful capture by American ships of war and put forward no claim until the opportunity for redress in those courts had been exhausted."

This did not appear to be altogether the case, Secretary Lansing pointed out that Great Britain, during the progress of the Civil War, had demanded in several instances, through diplomatic channels, while cases were pending, damages for seizures and detentions of British ships alleged to have been made without legal justification. Moreover, "it is understood also that during the Boer War, when British authorities seized the German vessels, the Herzog, the General and the Bundesrath, and released them without prize court proceedings, compensation for damages suffered was arranged through diplomatic channels."

The point made here was by way of negativing the position Great Britain now took that, pending the exhaustion of legal remedies through the prize courts with the result of a denial of justice to American claimants, "it cannot continue to deal through the diplomatic channels with the individual cases."

The United States summed up its protest against the British practice of adjudicating on the interference with American shipping and commerce on the high seas under British municipal law as follows:

"The Government of the United States has, therefore, viewed with surprise and concern the attempt of His Majesty's Government to confer upon the British prize courts jurisdiction by this illegal exercise of force in order that these courts may apply to vessels and cargoes of neutral nationalities, seized on the high seas, municipal laws and orders which can only rightfully be enforceable within the territorial waters of Great Britain, or against vessels of British nationality when on the high seas.

"In these circumstances the United States Government feels that it cannot reasonably be expected to advise its citizens to seek redress before tribunals which are, in its opinion, unauthorized by the unrestricted application of international law to grant reparation, nor to refrain from presenting their claims directly to the British Government through diplomatic channels."

The note, as the foregoing series of excerpts show, presented an array of legal arguments formidable enough to persuade any nation at war of its wrongdoing in adopting practices that caused serious money losses to American interests and demoralized American trade with neutral Europe. Great Britain, however, showed that she was not governed by international law except in so far as it was susceptible to an elastic interpretation, and held, by implication, that a policy of expediency imposed by modern war conditions condoned, if it did not also sanction, infractions.

Nothing in Great Britain's subsequent actions, nor in the utterances of her statesmen, could be construed as promising any abatement of the conditions. In fact, there was an outcry in England that the German blockade should be more stringent by extending it to all neutral ports. Sir Edward Grey duly convinced the House of Commons that the Government could not contemplate such a course, which he viewed as needless, as well as a wrong to neutrals.

As to the hostility of the neutrals to British blockade methods, Sir Edward Grey said:

"What I would say to neutrals is this: There is one main question to be answered—Do they admit our right to apply the principles which were applied by the American Government in the war between the North and South—to apply those principles to modern conditions, and to do our best to prevent trade with the enemy through neutral countries?

"If they say 'Yes'—as they are bound in fairness to say—then I would say to them: 'Do let chambers of commerce, or whatever they may be, do their best to make it easy for us to distinguish.'

"If, on the other hand, they answer it that we are not entitled to interrupt trade with the enemy through neutral countries, I must say definitely that if neutral countries were to take that line, it is a departure from neutrality."[Back to Contents]