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It may be seriously doubted, however, whether the substitution of a "legal blockade" for the measure instituted by the order in council would have removed the objections raised in neutral countries, so long as the rule of ultimate destination was applied. But it would have altered the legal situation in one important particular. Under the order in council of March 11, ships carrying contraband were not liable to confiscation, nor was the non-contraband portion of their cargoes; but had a "legal" blockade been instituted, contraband and non-contraband goods alike would have been liable to confiscation, and so would the vessels carrying them. The temptations of traders, therefore, to violate the blockade would have been less strong.

The government, however, refused to change its policy. The measure instituted by the order in council of March 11 therefore remained in force, and no blockade in the technical sense was ever established against Germany. Regarding the substance rather than the form, one is not convinced how the substitution of such a blockade in the place of the order in council would have inured to the benefit of neutrals. On the contrary, it is difficult to see why the reverse would not have been the case, since, as has been said, had a blockade in the usual sense been established, the rights of the blockading powers over neutral commerce would have been considerably enlarged, for in that case all goods, non-contraband and contraband alike, destined for the enemy directly or through neutral ports would have been liable to capture and confiscation without any obligation to make compensation.1 It would seem, therefore, that neutral criticism of the blockade, so far as it related to its non-conformity to the formal and technical requirements, was a contention for

a mere subterfuge. "Why, then," he asks, "did not England proclaim a blockade? Simply because a blockade would have brought incalculable injury and loss to America and all other neutrals. Had a blockade been in force from the fourth of August, 1914, England would have been strictly within her legal rights in taking into her ports every ship under any neutral flag-those of the United States as well as Italy, for instance, who at that time was a neutral and not a belligerent — and if there was the smallest quantity of contraband in the cargo, the whole, contraband and non-contraband as well as the ship, would have been lawful prize. Had Great Britain applied the same rule of law that the United States did, had Great Britain held that the ultimate destination of the cargo was sufficient ground for condemnation, there could be no escape."

1 Cf. on this point the remarks of Lord Haldane in an interview published in the London Daily Chronicle of April 1, 1915.

the lesser and narrower right against the larger and broader right; it was a plea for the observance of the form rather than the spirit of international law.

$523. German Criticism of the Blockade as a "Starvation" Measure. The Anglo-French blockade was fiercely attacked in Germany and by German sympathizers in neutral countries on the ground that its purpose was to reduce the civil population of Germany to starvation. The Imperial Chancellor in a speech of April 5, 1916, declared it to be contrary to international law, because it seeks "to starve us out and to extend the war to the entire German nation, to our women and our children." "It should not be forgotten," he said, "that in this war England set out to starve over 65,000,000 people; directly, by cutting off their food; indirectly, by closing the arteries of their commerce." This charge was repeated by the Chancellor in a speech of February 28, 1917. Great Britain, he said, desired "to make victims of the women and children, the aged and the ill of a nation numbering 70,000,000 people in order to force them into submission." It was many times reiterated by other officials of the German government, by German newspapers, and by German propagandists in America.2

1

1 Text in New York Times, February 28, 1917. Cf. also the German note of January 31, 1917, to the American government announcing the resumption of unrestricted submarine warfare. Whether any of the German civilian population actually died of starvation in consequence of the blockade would, of course, be difficult to prove. It was stated by the German government in January, 1919, that more than five hundred thousand deaths in Germany had resulted from malnutrition or under-nutrition! due to the blockade between the autumn of 1916 and the end of the year 1918. Associated Press despatch from Berlin, New York Times, January 24, 1919. Count Brockdorff-Rantzau, head of the German delegation at the Peace Conference, asserted in his address of May 7, 1919, at the opening session that “hundreds of thousands of non-combatants who have perished since November 11 (the date of the signing of the armistice) by reason of the blockade were killed with cold deliberation after our adversaries had conquered and victory had been assured them." Text of his address in New York Times, May 8, 1919. The German delegation at the Peace Conference, it may be added, submitted a claim for compensation on account of the suffering and death occasioned by the blockade, but it was not accorded.

2 Cf., for example, von Mach, Germany's Point of View, pp. 288, 363 ff., and Burgess, America's Relations to the Great War, ch. I. The Germans attempted to justify in part their methods of submarine warfare as an act of reprisal against Great Britain for her "inhuman attempt to starve the women and children of the Empire." The Chancellor in his speech of April 15, 1916, referred to above, said: "No fair-minded neutral, no matter whether he favors us or not, can contest our right on our part to take measures of defence against this war of starvation,

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But the right of a belligerent to cut off the food supply of his enemy by means of a siege or blockade and to starve him if possible into submission has always been recognized as a legitimate belligerent right, and it has been exercised in all wars where it was possible to do so. As is well known, Metz and Paris were reduced to submission in 1870 partly by bombardment and partly by starvation, and Bismarck, adverting to representations from London to the effect that the capitulation of Paris ought to be brought about by hunger rather than bombardment, stated that it was debatable whether the one was more humane than the other; both, he argued, were perfectly legitimate methods for overcoming the enemy and compelling him to surrender.2 In reply to a memorial from a number of Hamburg merchants regarding the announcement of the French government in 1885 of its intention to treat rice as absolute contraband Bismarck made the following statement:

"Any disadvantage our commercial and carrying interests may suffer by the treatment of rice as contraband of war does not justify our opposing the measure which it has been thought fit to take in carrying on a foreign war. . . . The measure in question has for its object the shortening of the war by increasing the difficulties of the enemy and is a justifiable step in war if impartially enforced against all neutral ships."

In 1892 Count Caprivi, then Imperial Chancellor, thus defended starvation as a legitimate belligerent weapon:

"A country may be dependent for her food, or for her raw produce upon her trade; in fact it may be absolutely necessary to destroy the enemy's trade. . . . The private introduction of provisions into Paris was prohibited during the siege, and in the same way a nation would be justified in preventing the import of food and raw produce." 3

which is contrary to international law. No one can expect us to permit the arms of defence at our disposal to be wrested from us. We use them, and must use them. We respect the legitimate interests of neutrals in trade and commerce, but we expect that this respect be appreciated and that our right and our duty be recognized to use all means possible for retaliating against this policy of starvation which sets at defiance not only international law but the plainest duties of humanity."

1 Cf. Spaight, War Rights on Land, pp. 174 ff.

2 Bismarck, The Man and the Statesman (English trans. by Butler, Vol. II, p. 125).

3 Quoted in Pyke, The Law of Contraband, p. 99. The legitimacy of blockade as a measure for cutting off the food supply of the enemy is defended by the German writer Perels, Manuel de Droit Maritime (French trans. by Arendt), pp. 270,

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Obviously, if a siege or a blockade which intercepts the food supply of the enemy is illegal for that reason, the right of siege and of blockade would be of little value to a belligerent. As is well known, both the effect and the purpose of the blockade of the Southern Confederacy was to deprive the civil as well as the military population of food and other supplies. Not only was the food supply cut off, but even materials for the manufacture of Red Cross supplies, as well as drugs and medicines of every kind. It may be safely assumed that if the positions of the contending belligerents in the recent war had been reversed and the German navy had been in control of the seas, with the British Isles commercially isolated, the German government would never have permitted a stream of food supplies to pour into Great Britain for the sustenance of the civil population. The German military authorities showed no such solicitude for the women and children of the enemy in 1870-1871, nor did they show it during the recent war. Lord Robert Cecil, replying in the House of Commons on March 19, 1916, to the German charge of inhumanity against the British government for cutting off the milk supply for the starving babies of Germany, stated that within the occupied districts of France when the Germans arrived, there were half a million of cattle.

"Hardly one is now left," he said, "and today Mr. Hoover's commission is sending into that district 3,000,000 tins of condensed milk monthly to keep alive the thousands of French babies whose source of supply has been taken from them by the Germans. This milk is being paid for by French money. Without this fund and the work of a neutral commission, these French babies would be dying of starvation today." "Belgium," he added, "had 1,500 000 cattle; we know that practically half of these have gone to Germany."

Finally, it may be added that the right of Germany's enemies to cut off by means of a blockade over-seas supplies for the civil population was strengthened by the impossibility of distinguishing between the civil and military population. The Germans had long insisted that their army was the nation in arms; if it was such in the past, it was doubly so during the recent war.2 Under the circumstances it is difficult to see how the application. of the blockade could have been limited to the interdiction of 1 See Rhodes' History of the United States from the Compromise of 1850, Vol. V, pp. 396-410.

2 This was admitted by the Chancellor in his speech of February 28, 1917.

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supplies to the military population alone, even if the allies had desired to so limit it.

§ 524. Attitude of the British and French Governments in Regard to the Admission of Hospital Supplies to Germany. The refusal of the British and French governments to permit the shipment to enemy countries of hospital supplies was also the subject of strong criticism, particularly in Germany. It appears that at the outset shipment to the enemy country of hospital supplies generally, except rubber goods such as gloves worn by surgeons and nurses, blankets, tubing, and similar articles, was exempted from the order in council establishing the blockade. The allied governments took the position that the admission of the articles mentioned to the enemy country would release an equivalent amount of the domestic stock for the manufacture of automobile tires and other articles of military necessity. Later, it appears, further restrictions were introduced the effect of which was to debar the shipment of practically all hospital supplies to Germany. At the insistence of the American Red Cross society the department of state made representations to the governments of Great Britain and France with a view to inducing them to consent to a modification of their policy regarding the exclusion of hospital supplies. Thereupon the allied governments, in July, 1916, agreed to allow the American Red Cross society to ship hospital supplies of all kinds to the enemy countries, provided they were consigned directly to the units of the Red Cross society operating in such countries, and provided further that the society would give an undertaking that such supplies would be used exclusively by the American Red Cross, and that they would be destroyed after being once used. This guarantee the society could not give in consequence of its units having been withdrawn in October, 1915, from Germany for lack of funds.1

1 In June, 1916, Mr. Taft, chairman of the central committee of the American society, proposed to the British government that the society be allowed to send a commission to Germany and Austria to receive and distribute Red Cross supplies, the commission to guarantee that they would be used exclusively for hospital purposes. He pointed out that under art. 16 of the Geneva convention the materials of relief societies admitted to the benefits of the convention were exempt from capture as contraband, and that this implied the right to ship hospital supplies to the Red Cross organization of Germany. He also added that it was a humanitarian duty which would in no way inure to the military advantage of Great Britain's enemies. The British government, however, took the position