contraband were allowed to go freely to Germany. On March 1, 1915, however, the British government announced that it was the intention of the allied governments "to seize all ships carrying goods of presumed enemy destination, ownership or origin." Adverting to the German war zone decree of February 4 as a measure "entirely outside the scope of international law,' contrary to the humane practice of the past, and adopted against peaceful traders and non-combatant crews with the avowed object of preventing commodities of all kinds, including food for the civil population, from reaching or leaving the British Isles or northern France, the British announcement stated that

"Her opponents are therefore driven to frame retaliatory measures in order in their turn to prevent commodities of any kind from reaching or leaving Germany. These measures will, however, be enforced by the British and French governments without risk to neutral ships or to neutral or non-combatant life and in strict observance of the dictates of humanity. The British and French governments will therefore hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation."1

512. Criticism of the Proposed Blockade. This announcement raised two questions of interest to students of international law. In the first place, it contained a declaration of an intention to establish what in effect was a blockade without designating it as such and without conforming it to the requirements heretofore recognized as essential to a valid blockade. In the second place, this non-conformity to recognized legal requirements was defended as a justifiable act of retaliation against the enemy for violation of the laws of war. The prime minister of England, in a speech in the House of Commons on March 1, announcing the measure, declared that it had been decided upon in the exercise of "an unquestionable right of retaliation." "In the retaliatory measures we propose to adopt," he said, "blockade,' 'contraband' and other technical terms do

1 A communication from the French ambassador at Washington in practically identical language was sent to the secretary of state at the same time. The German war zone decree, it may be remarked, was itself defended by the German government as a justifiable act of retaliation for various alleged violations of international law by Great Britain, notably the British measures in respect to contraband, disregard of the Declarations of Paris and of London, and the conversion of the North Sea into a military area.

CRITICISM OF THE BLOCKADE

321

not occur; and advisedly, in dealing with an opponent who has openly repudiated all the restraints of law and humanity, we are not going to allow our efforts to be strangled in a net-work of juridical meshes."

Both the form of the measure and the reason upon which it was sought to justify it were attacked in the United States as in other neutral countries as being contrary to the law of blockade and therefore without justification.' It was described by the American government as a "so-called blockade" and, being "admittedly retaliatory," was therefore "illegal in conception and nature."

Mr. A. J. Balfour, in an article published in the London Times of April 2, 1915, defended at length the Anglo-French measure as a justifiable act of retaliation against Germany. He said:

"Put shortly, the case is this. The Germans declare that they will sink every merchant ship which they believe to be British, without regard to life, without regard to the ownership of the cargo, without any assurance that the vessel is not neutral, and without even the pretence of legal investigation. The British reply that if these are to be the methods of warfare employed by the enemy, the Allies will retaliate by enforcing a blockade designed to prevent all foreign goods from entering Germany and all German goods from going abroad."

To hold, he argued, that Great Britain, in technically violating the law governing blockades in order to meet the measures of an adversary who openly disregarded the law of nations and of humanity, was equally deserving of condemnation was to apply rigid technical standards in a case where technical standards must be used with caution; it was appealing to the letter of international law but ignoring the spirit. After all, he added, it was the equity of the allied case rather than the law which mainly interested the thinking public in America and elsewhere. It was a question rather of international morality than of international law. To insist that the repudiation of the generally accepted rules of conduct by one belligerent does not impair in the least the obligations of the other is to confound international morality with international law, two closely related though not identical bodies of principles.

1 Note of Secretary Lansing of October 21, 1915; cf. also his memorandum of April, 1916, European War, No. 3, pp. 77-78.

VOL. II-21

"The obligations of the former," he continued, "are absolute; those of the latter are conditional, and one of the conditions is reciprocity. In the present unorganized condition of international relations it could not well be otherwise. But let them remember that impotence, like power, has duties as well as privileges; and if they cannot enforce the law on those who violate both its spirit and its letter, let them not make haste to criticise belligerents who may thereby be compelled in self-defence to violate its letter while carefully regarding its spirit. For otherwise the injury to the future development of international law may be serious indeed. If the rules of warfare are to bind one belligerent and leave the other free, they cease to mitigate suffering; they only load the dice in favor of the unscrupulous; and those countries will most readily agree to changes in the law of nations who do not mean to be bound by them."

The plea thus put forward in defence of a measure which was avowedly retaliatory and which did not conform to the established rules raised a delicate question and one upon which strong argument may be advanced on both sides. It involved the whole question as to how far it is permissible for a belligerent to violate the laws of war as an act of retaliation against his enemy, and to what extent the obligation to conform to the law rests upon the principle of reciprocity.' Whatever may be the differences of opinion on this point, there is a general agreement that a belligerent may not in his measures of reprisal against an enemy disregard the rules of international law established for the protection of neutrals, and it was mainly on this ground that the validity of the Anglo-French blockade was attacked in neutral countries.2

1 The right of retaliation against an enemy who refuses to conform to the law of nations is recognized by most writers. Cf. Wheaton (Lawrence's ed.), pp. 605608; Taylor, op. cit., sec. 487; Rivier, op. cit., Vol. II, p. 298; Oppenheim, Vol. II, p. 259; Spaight, p. 463; Westlake, Collected Papers, p. 260. The whole matter is considered by Wilkinson in an article on "Reprisals in Warfare," in the Law Mag. and Review, May, 1915.

2 Baty, an English writer criticising the British order in council of March 11, remarks that it was avowedly a retaliatory measure, and he adds, "How, as Phillimore says, can you retaliate against neutrals who have never injured you?" See his article in the Pennsylvania Law Review, June, 1915, p. 717. In 1918 the English prize court in the case of the Leonora considered at length the question as to how far a belligerent may, in the exercise of the right of retaliation against an enemy, interfere with the rights of neutrals, as those rights are recognized by the existing rules of international law. The court affirmed that the maritime commerce of neutrals may be restricted by belligerents if that commerce tends to assist the enemy directly or indirectly in his warlike operations. It also upheld the British blockade measure as a legitimate act of retaliation against the illegal methods of warfare pursued by the enemy. The decision of the prize court was affirmed on appeal by the judicial committee of the privy council (London Times,

THE BRITISH DEFENCE

323 8513. The Order in Council of March 11. By an order in council of March 11 the proposed measures against commerce with Germany were definitely proclaimed.' The order in council contained a long preamble denouncing the German war zone decree of February 4 as a violation of the usages of war and declaring that "such attempts on the part of the enemy give to His Majesty an unquestionable right of retaliation." The order then decreed that no merchant vessel which had sailed from her port of departure after March 1, 1915, to any German port would be allowed to proceed unless the vessel were provided with a pass authorizing her to proceed to some neutral or allied port, in which case the goods on board would be discharged in a British port and placed in the custody of a prize court. If non-contraband of war and if not requisitioned for the use of His Majesty, they would be restored under such conditions as the court might deem to be just. No merchant vessel which had sailed from any German port after March I would be allowed to proceed on her voyage with any goods laden at such port. All such goods would be put in the custody of the prize court and disposed of in the same manner as those found on board ships bound to German ports. Every merchant vessel which had sailed from her port of departure after March 1 to a port other than a German port, and carrying goods with an enemy destination or which were enemy property, might be required to be discharged in a British port and placed in the custody of the prize court and disposed

August 1, 1919). Adverting to the unlawful German onslaught on shipping generally, Lord Sumner concluded: "It is plain that measures of retaliation and repression would be fully justified in the interest of the common good even at the cost of very considerable risk and inconvenience to neutrals in particular cases." The decision is criticised by Yntema in an article in 17 Mich. Law Review, pp. 64 ff. This author attacks as unwarranted the principle laid down by the prize court that an enemy may be punished by way of retaliation "through the sides of a neutral" and asserts that the fact of non-conformity by one belligerent to a rule of international law does not justify the other in refusing to observe it. Cf. also the opinion of the English prize court in the case of the Stigstad, affirmed by the judicial committee of the privy council (Trehern, III, 181), upholding the right of reprisal even when it causes delays and inconveniences to neutrals. This case is analyzed and criticised by Borchard in the Yale Law Journal, 1919, pp. 583 ff. See also the opinion of Sir Samuel Evans in the case of the Hakon, Trehern, II, 201.

1 By a decree of March 13, 1915, the French government put into effect a measure substantially the same as that of the British order in council of March 11.

of in a similar manner to those destined directly to or from a German port, as explained above, provided that the crown might release neutral property of enemy origin upon proper application.

$514. Character of the Blockade thus Established. It will be noted that the employment of the word "blockade" was deliberately avoided throughout the text of the order in council, nor was the order clothed in the form of a blockade proclamation, nor did it define the area blockaded, nor lay down any rules as to presumed knowledge of the existence of the blockade such as are required by the Declaration of London, nor was anything said in regard to measures for making the blockade effective by means of cruisers or other craft as was done in the proclamations establishing the blockades mentioned above. British officials, however, frankly admitted that the purpose of the order was to institute a blockade of all commerce with Germany, both incoming and outgoing. On March 13 this was definitely asserted by Sir Edward Grey in a memorandum placed in the hands of the American ambassador in London. In this memorandum Sir Edward stated that

"The government of Great Britain have frankly declared, in concert with the government of France, their intention to meet the German attempt to stop all supplies of every kind from leaving or entering British or French ports by themselves stopping supplies going to or from Germany for this end. The British fleet has instituted a blockade, effectively controlling by cruiser 'cordon' all passage to and from Germany by sea."

Thus all doubt as to the character and purpose of the measure was removed. It was avowedly to be a blockade differing in form and technique from the usual type of blockade and also differing in legal effect, inasmuch as not all goods destined to or from the blockaded ports in violation of the order would be confiscated, but, if non-contraband of war, they would be restored or paid for under such conditions as the prize court might deem just. The measure would therefore be more favorable to neutrals than the customary blockades of the past under which cargoes of non-contraband equally with contraband goods, as well as the ships which carry them (subject to certain exceptions), are confiscated when destined to a blockaded port.

§ 515. Neutral Protests. The British order in council and the French decree provoked vigorous protests by the govern