University of Texas Bulletin No. 2344: November 22, 1923 The Controversy Between the United States and the Allied Governments Respecting Neutral Rights and Commerce During the Period of American Neutrality, 1914-1917 By MALBONE WATSON GRAHAM, Jr. Adjunct Professor of Government PUBLISHED BY THE UNIVERSITY OF TEXAS AUSTIN Publications of the University of Texas Publications Committee: FREDERIC DUNCALF J. L. HENDERSON KILLIS CAMPBELL E. J. MATHEWS F. W. GRAFF H.J. MULLER C. G. HAINES HAL C. WEAVER The University publishes bulletins four times a month, so numbered that the first two digits of the number show the year of issue, the last two the position in the yearly series. (For example, No. 2201 is the first bulletin of the year 1922.) These comprise the official publications of the University, publications on humanistic and scientific sub­jects, bulletins prepared by the Bureau of Extension, by the Bureau of Economic Geology, and other bulletins of general educational interest. With the exception of special num­bers, any bulletin will be sent to a citizen of Texas free on request. All communications about University publications should be addressed to University Publications, University of Texas, Austin. UNIYEISITY OP TEXAS PRESS, AWSTIK University of Texas Bulletin No. 2344: November 22, 1923 The Controversy Between the United States and the Allied Governments Respecting Neutral Rights and Commerce During the Period of American Neutrality, 1914-1917 By MALBONE WATSON GRAHAM, Jr. Adjunct Professor of Government PUBLISHBD BY THE UNIVERSITY FOUR TIMES A MONTH, AND ENTERED AS SECOND-CLASS MATTER AT THE POSTOFFICB AT AUSTIN. TEXAS, UNDER THE ACT OP AUGUST 2'4, 1912 The benefit& of education and of useful knowledge, generally diffused through a . community, are essential to the preservation of a free govern­ment. Sam Houston Cultivated mind is the guardian genius of democracy. . It is the only dictator that freemen acknowl­edge and the only security that free­men desire. Mirabeau B. Lamar TABLE OF CONTENTS Introductory Note ----------------------------------------------------------------5 Chapter I. The Outbreak of War: Initial Contro­versies 13 Chapter II. The Controversy over Mail Seizures________ 25 Chapter III. The Controversy over the Declaration of London _____________ -------------------------------------------------------36 Chapter IV. Unneutral Acts and Unneutral Service 51 Chapter V. The Controversy over Armed Merchant Ships _____ ___ ____ ______________________ _________________ ___________ _ ______ ______ 61 Chapter VI. The Controversy over Contraband and the Right of Search________ _____________ ______________________________ 86 Chapter VII. Transfer of Registry and Enemy Char­acter ------------------------------------------------------------------------------138 Chapter VIII. The Controversy over Blockade__ ____ _____ 147 Chapter IX. Conclusion ------------------------------------------------167 Appendices --------------------------------------------------------------------------169 Bibliography __________ ______________----------------------------------------------183 Index -----------------------------------------------------------------------------_...... 189 The intercourse of this country with foreign nations, and its pol­icy in regard to them, are placed by the Constitution of the United States in the hands of the Government, and its decisions upon these subjects are obligatory upon every citizen of the Union. He is bound to be at war with the nation against which the war-making power has declared war, and equally bound to commit no act of hostility against a nation with which the Government is in amity and friend­ship. This principle is universally acknowledged by the laws of the na­tions. It lies at the foundation of all governments, as there could be no social order or peaceful relations between the citizens of dif­ferent countries without it. It is, however, more emphatically true in relation · to citizens of the United States. For as the sovereignty resides in the people, every citizen is a portion of it, and is himself personally bound by the laws which the representatives of the sov­ereignty may pass, or the treaties into which they may enter, within the scope of their delegated authority. And when that authority has plighted its faith to another nation that there shall be peace and friendship between the citizens of the two countries, every citizen of the United States is equally and personally pledged. The compact is made by the department of the Government upon which he himself has agreed to confer the power. It is his own personal compact as a portion of the sovereignty in whose behalf it is made. And he can do no act, nor enter into any agreement to promote or encourage re­volt or hostilities against the territory of a country with which our Government is pledged by treaty to be at peace, without a breach of his duty as a citizen, and the breach of the faith pledged to the for­eign nation. UNITED STATES SUPREME COURT. INTRODUCTORY NOTE ON THE GENERAL NEU­ TRALITY POLICY OF THE UNITED STATES In the study of the policy of the Government of the United States since the inception of its national life one cannot fail to be impressed with the remarkable character of its positive contributions to thhe law of nations in its pursuit of the ideal of neutrality amid circumstances too often all but intolerable. It matters little that the policy of neutrality inaugurated by President Washington was guided in part by the considerations of internal policy, the uncertain financial conditions-of the newly established Fed­eral Government, and a distinct division of counsels in the cabinet, for the essential fact back of the adoption of the policy in the famous proclamation of neutrality was the resolve of the President "to adopt general rules, which should conform to the treaties, and assert the privileges, of the United States." These were, accordingly, laid down in systematic rules, as "there was reason to apprehend that our intercourse with those powers with whom the United States have the most extensive relations might be inter­rupted, and our disposition for peace drawn into question by the suspicions too often entertained by belligerent na­tions."1 Throughout, one thing stands out quite clearly-the firm desire of Washington to establish along clearly defined lines a policy which should embrace in its scope the recognition, as this nation understood them, of the principles of the law of nations as regards neutral powers. It is true that we had not illcorporated in our treaty of peace with Great Britain the principles of the Armed Neutrality of 1780, although we had later committed ourselves in the treaties with the countries which composed iF to the acceptance of the doctrines promulgated by the Empress Catherine, and it was only in the articles of the Jay Treaty with England that we assented to the right of a belligerent to seize enemy 1 American State Papers, Foreign Relations I, 21. 2Moore, Digest of International Law, VII, 560. property aboard a neutral ship. Under such circumstances, on the outbreak of war in Europe, it was an epochal step for Washington to take in seeking independently to de­termine, as far as our municipal jurisprudence was con­cerned, the exact stand that the United States would take in the interpretation of its rights and duties as a neutral power. It was on this basis, therefore, that the first Neutrality Act of June 5, 1794, was passed, prohibiting the acceptance by citizens of the United States of commissions to serve a foreign state or prince; the enlistment or hiring of per­sons to enlist in the service ~f any other state; the fitting out and arming of vessels to be used against countries with which the United States was at peace; the commissioning of a vessel for such purpose; the augmenting of its forces; the setting on foot of military expeditions against foreign states within the territory or jurisdiction of the United States, and empowering the President to use such part of the land and naval forces of the United States as should be judged necessary to enforce the act. The courts of the United States were likewise given jurisdiction over cases of captures within the territorial waters of the United States, though the act was not to be so construed as to pre­vent the prosecution of treason or piracy as defined by treaty or by law of the United States.3 This act, renewed in 1797, was made permanent by the Act of April 24, 1800. As a starting point for the enactment by other countries of neutrality laws, the Act of 1794 has been claimed as one of the most model acts that could have been contemplated for the true enforcement of neutrality, and has received unstinted praise from many eminent writers and states­men.• It is not the part of this endeavor to discuss in any de­tail the numerous occasions when the United States has found itself in a difficult position due to the violation of its 31 U. S. Statutes at Large, 381. •Cf. Fenwick, C. G., The Neutrality Laws of the United States, p. 27, and Hall, W. E., International Law, 4th Ed., p. 587. neutral rights by belligerents in foreign wars, or due to the enterprises undertaken by its own citizens in aid of in­surrections or revolutions in American countries. Suffice it to say that such notorious cases of filibustering as the Miranda expedition in 1806 brought from the pen of Jef­ferson on November 27, 1806, a neutrality proclamation as regards the wars of the Spanish American colonies and the attempt of American citizens to organize military expedi­tions in the United States with a view to furthering their insurrection against Spain.5 Other proclamations and diplomatic notes between the United States and Spain fol­lowed in the course of the next decade, and the manifest deficiencies in the neutrality laws, as revealed both by the exigencies of the Napoleonic wars and by the revolt of the Spanish colonies, were brought to the attention of Congress by Madison in his message to Congress on December 26, 1816: It is found that the existing laws have not the efficacy ne­cessary to prevent violations of the obligations of the United States as a nation at peace towards belligerent parties, and other unlawful acts on the high seas, by armed vessels equipped within the waters of the United States. With a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States, I recommend to the consid­eration of Congress the expediency of such further legisla­tive provisions as may be requisite for detaining vessels ac­tually equipped, or in a course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments, with the exceptions in such provisions proper for the cases of merchant vessels furnished with the defen­sive armaments usual on distant and dangerous expeditions, and of a private commerce in military stores permitted by our laws, and which the law of nations does not require the United States to prohibit.G The fruit of Madison's recommendations and the advice offered by Monroe, then Secretary of State, was the "Act 5Richardson, Messages and Papers of the Presidents, I, 404. 6 Fenwick, citing Am. State Papers, For. Rel., IV, 103, op. cit., p. 35. more effectually to preserve the neutral relations of the United States" effective March 3, 1817.7 This served to take away the burden of preventing expeditions against a friendly nation by insurgents, by the designation of "for­eign prince, state, colony, district, or people" as the all­embracing group of those in whose behalf the laws were to be enforced, in lieu of the narrower designation "for­eign state or prince" which had operated too one-sidedly against all insurgents hitherto.1a Finally, as a com­pleting measure, Congress, by an Act of April 20, 1818, passed a law codifying all previous neutrality laws into one act, now embodied in the Revised Statutes of the United States, Sections 5284-5291.8 The next enactment dealing with the neutrality of the United States came as the result of President Van Buren's proclamation of January 5, 18389 warning American citi­zens against compromising the neutrality of the United States by interfering in the current insurrection in Canada against the British authorities, and a message urging Con­gress to make adequate provision for the case. Conse­quently, on March 10, 1838, Congress passed an act author­izing the detention of shipments of ammunition or other war material "which may be provided or prepared for any military expedition or enterprise against the territory or dominions of any foreign prince or state or of any colony district or people coterminous with the United States and with whom they are at peace."10 This has been regarded in some quarters as the chief precedent for the action of the Congress of the United States, when, by joint resolu­tion of March 14, 1912, it authorized the President to pro~ 73 Statutes at Large, 370. 7aThis marks, from a juridical standpoint at least, the turning point in the policy of the United States as regards the revolting col­onies of Spain, by the assertion of its neutrality laws so as to protect them from being the victims of expeditions of repression supported by the United States through grants of aid to the mother country. s3 Statutes at Large, 447. 9Richardson's Messages, III, 481. 105 Statutes at Large, 212. claim the illegality of export of munitions to any American country where, in his opinion, there existed "conditions of domestic violence which are promoted by the use of arms or munitions of war procured from the United States,'' until otherwise ordered by him or by Congress.11 More menacing to our neutrality were the mid-century filibustering expeditions of Lopez to Cuba in 1849, and of Walker to Nicaragua in the early fifties, the numerous at­tempts on the 'part of over-zealous Americans to aid Cuba in her protracted struggle for freedom against Spain, and sundry expeditions that have from time to time been made against Mexico. In each instance these served to call forth from the President a proclamation against the citizens who should so conspire to set at naught the laws of the United States maintaining her neutrality. As regards Cuba, so open were American sympathies in favor of the insurgents that Hamilton Fish, then Secretary of State, was "forced to admit with regret" that the United States had failed to ex­ercise the "due diligence" in preventing the escape of an expedition• bent on reaching Cuba, due to the extreme se­crecy with which the insurgents had carried out their plans; furthermore, there were constitutional limitations as to the right of search and seizure, as well as to the suppression of free expression of opinion, which the United States Gov­ernment could not itself trespass.12 The lessons taught the United States by the depredations of the Alabama in the Civil War, and by the neglect of Great Britain to take due diligence to prevent the departure of the Laird commerce destroyers from Liverpool, gave President Grant ample warrant for making the regulations as to the stay of belligerent war-vessels in the harbors of the United States as stringent as possible. Consequently, by means of a second proclamation of neutrality in the Franco-Prussian War, issued October 8, 1870, supplement­ing the very detailed proclamation which he had already nFenwick, op. cit., p. 58. i2House Executive Document No. 160, 41st Congress, 2nd Session. p. 133. issued on August 22, 1870, President Grant declared that, as information subsequent to the original proclamation gave him "reason to apprehend an abuse of the hospitality of the ports of the United States by belligerent cruisers," he proclaimed and declared that "any use of the territorial waters of the United States by vessels of either belligerent for the purpose of preparing for hostile operations or as posts of observation must be regarded as in violation of the neutrality of the United States."13 Further than this, the . proclamation fixed the rule of a twenty-four hour stay in neutral ports for belligerent warships, in the wake of the practice adopted by Great Britain in her Neutrality Regu­lations of 1862, which also provided that the supplies to be taken aboard a belligerent vessel must be limited to pro­visions for her crew and as much coal as should be suffi­cient to carry the vessel, if without sail power, to the nearest European port of her own country, and that supplies of coal could not be furnished more than once in three months.14 These regulations finally found their way into Convention XIII, adopted by the Second Hague Conference•in 1907, re­lating to the Rights and Duties of Neutral Powers in Mari­time War, thereby acquiring the sanctions of the law of nations for this hitherto purely municipal enactment. The last important development of the position of the United States previous to the outbreak of the European · war, with the exception of the proclamation as to Mexico already noted, is to be found in a proclamation issued by President Roosevelt on October 14, 1905, who declared "for good and sufficient reasons to me appearing, and by virtue of the authority conferred upon me by a joint reso­lution approved April 22, 1898, to prohibit the export of coal or other material used in war from any sea-port of the United States" that "the export of arms, ammunition, and munitions of war of every kind from any port in the United States or in Porto Rico to any port in the Dominican Re­public, is prohibited, without limitation or exception, from t3Richardson, Messages, VIII, 87-89. HFenwick, op. cit., 53. and after the date of this my proclamation until otherwise ordered by the President or the Congress."15 These various steps are sufficient, for the purposes of this study, to show how .the United States, by mere municipal enactments, has striven to fulfil; as best it knew, the strict obligations of neutrality. Judged by the standards of other nations, as may be noted in reading the neutrality proclamations of all the neutral countries at the beginning of the Great War.16 the standard of neutral conduct maintained by the United States is relatively high, consistent with the previous in­ternational practice of the most enlightened nations, and free from any regulations that have not as yet taken effect internationally-such as Latin American states have been wont to embody in their neutrality codes. Yet notwith­standing this high standard of neutrality laws and policy, the United States found, in the course of the Great War, that her municipal enactments must be broadened. To that end, the 63rd Congress, in its closing hours, passed a joint resolution to empower the President to better en­force and maintain the neutrality of the United States.17 This authorized the President to issue orders to the col­lectors of customs under the jurisdiction of the United States to withhold clearance from any vessel, American or foreign, which he had reasonable cause to believe to be about to carry fuel, arms, ammunition, men or supplies to any warship, or tender, or supply ship of a belligerent na­tion, in violation of the obligations of the United States as a neutral nation. The rush at the eleventh hour to pass some such blanket clause of authority when the eventful summer of 1915 was at hano is the only discreditable fea­ture in regard to the conduct of our policy at the time, yet the powers entrusted to the President as the result of its passage were found sufficiently ample, for all the emer­gencies of the international situation, up till the time of 1534 Statutes at Large, 383. 16107 British and Foreign State Papers, II, 795-865. 11Ew No. 2, p. 20. (4.III.15). University of Texas Bulletin the crisis over the armed neutrality bill two years later. The ignominous failure of the latter measure left the United States without any proper means to safeguard its neutrality towards other countries with which it remained at peace during the period of the war, consequently it be­came necessary to enact new measures fitted to safeguard the neutrality of the United States during time of war. Jn the Espionage Bill, passed during the first session of the 65th Congress, a special title was introduced to cover the situation, and embodied in it the gist of the best proposals for the better safeguarding of the neutral .rights of the United States that had been made during the years of her neutrality. As their import does not bear on the issues under our consideration, it is sufficient here merely to refer to them, with the comment that it took the test of war itself to prove to the United States the flaws and weaknesses in its previous code of neutrality. At last, under the pressure of war-time enactments,13 _the United States has obtained a thoroughgoing code of neutrality laws sufficiently drastic and systematic in their operation to render amenable to law almost all the possible situations that might arise in time of either peace or war.18 • 18Title V, Chapter 30, U. S. Statutes at Large, 1917, p. 221. 18aFor a review of the effects of the law of 1917 upon the older statutes, cf. Hyde, Charles Cheney, International Law, Chiefly as Interpreted and Applied by the United States, II, 703-708 passfim (hereafter cited as Hyde, International Law). CHAPTER I. THE OUTBREAK OF WAR: INITIAL CONTROVERSIES In the course of this conflict, let it be our endeavor, as 1t 1s our interest and desire, to cultivate the friendship of the belligerent na­tions by every act of justice and of innocent kindness; to receive their armed vessels with hospitality from the distresses of the sea, but to administer the means of annoyance to none; to establish in our harbors such a police as may maintain law and order; to re­strain our citizens from embarking individually in a war in which their country takes no part; to punish severely those persons, citi­zen and alien, who shall usurp the cover of our flag for vessels not entitled to it, infecting thereby with suspicion those of real Ameri­cans and committing us into controversies for the redress of wrongs not our own; to exact from every nation the observance towards our vessels and citizens of those principles and practices which all civi­lized people acknowledge; to merit the character of a just nation and maintain that of an independent one, preferring every consequence to insult and habitual wrong. Congress will consider whether the ex­isting laws enable us efficaciously to maintain this course with our citizens in all places and with others while within the limits of our jurisdiction, and will give them the new modifications necessary for these objects. THOMAS JEFFERSON. The outbreak of the European War found the United States suddenly encumbered with the heavy load of diplo­matic relations of the various belligerent powers, who, feeling secure in entrusting their addled affairs to our care, had turned instinctively to the embassies or legations of the United States, feeling that, as we had always "stood apart, studiously neutral," in all previous European con­flicts, we would now be the first to proffer our aid to those distressed civilians and exasperated statesmen whose feel­ings on the outbreak of war had left many a difficult situa­tion for neutral diplomats to handle. America became the medium of exchange of thought and correspondence be­tween the two great groups of belligerents, and her en­deavors to straighten many tangled and thwarted affairs out of the impasses into which war had brought them was such as to make the work of our diplomats abroad and of our State Department at home signal in its achievements. University of Texas Bulletin The most pressing situation abroad was, of course, the plight of American citizens marooned in the war area, de­void of means of identification-such had been the general neglect of passports in antebellum days. They were now seized or detained or left stranded in the most precarious situations, and our embassies were taxed to the limit in an endeavor to provide them safe means for return to the United' States, both by the issuance of passports and by provision of money for them. To that end Mr. Bryan, then Secretary of State, sent a circular telegram to the embas­sies and legations in Europe on August 1, 1914, directing the issuance of emergency passports to American citizens requesting them, and advising all consular officials to reg­ister Americans at the consulates and to give them dupli­cate certificates of registration in case they did · not have passports. Americans were urged to keep in touch and within reach of consular officials, and were to be given all possible protection under all circumstances.19 Ten days later consuls were given authority to issue emergency pass­ports, and to get blanks printed, while remitting all fees for passports.2 0 The subsequent misuse of passports by persons claiming to have been naturalized and therefore to be exempt from the jurisdiction of the country of their birth led Mr. Lansing, then Counsellor of the Department of State, to is­sue strict orders against the issuance of any passports to persons not duly authenticated, while doubtful cases were to be referred to the State Department.21 On December 21, the passport regulations were supplanted by an entirely rigid set of rules devised from experience and aiming to make extremely difficult any false use of passports.22 Simi­lar care was to be used in regard to persons domiciled in European countries but desiring to have their pass­ports renewed.23 Special regard was paid to the case of 19EW No. 2, p. 155. (1.VIII.14). 20Jbid., p. 155. (10.VIIl.14). 211bid., p. 155. (12.IX.14). 22Jbid., p. 156. (21.XII.14). 23Jbid., p. 158 ff. (8.II.15). Controversy over Neutral Rights Americans going to Europe, and the Department of State issued several circulars urging our citizens to avoid actions or measures which might lead to suspicion: As belligerent countries are accustomed, for self-protec­tion, to scrutinize $!arefully aliens who enter their territories, American citizens who find it necessary to visit such coun­tries should, as a matter of precaution, and in order to avoid detention, provide themselves with letters and other docu­ments in addition to their passports, showing definitely the objects of their visits ... American citizens sojourning in countries which are at war are warned to refrain from any conduct or utterances which might be considered offensive or contrary to the principles of strict neutrality.24 Such were the measures taken abroad for the interests of our own citizenry, and their effectiveness soon put an end to all rumors of whatever nature to the effect that the United States had been helping belligerent governments to recruit their reservists, etc., by means of the surrepti­tious issue of false passports. Such charges were made spo­radically but never actually proven. At home the efforts were different, and, if anything, even more impartially neu­tral. President Wilson issued the first proclamation of neutrality on August 4, and this was followed by an identic proclamation in every instance of a new declaration or state of war until our entry into the conffict.25 But more than this, the President, in a message directed towards the maintenance of neutrality, urged every thoughtful man in America to be "impartial in thought as well as in action" for the sake of the enviable distinction that it would bring to the United States: The effect of war upon the United States will depend upon what American citizens say and do. Every man who really loves America will act and speak in the true spirit of neu­trality and fairness and friendliness to all concerned. The spirit of the Nation in this critical matter will be determ­ined largely by what individuals and society and those gath­ered in public meetings do and say, upon what newspapers and magazines contain, upon what ministers utter in their 24Jbid., pp. 162-3. (l7.IV.15) . 2sEW No.2, pp. 15-17 (24.V.15). University of Texas Bulletin pulpits, and men proclaim as their opm10ns on the street. . , . Divisions among us would be fatal to our peace of mind and might seriously stand in the way of the proper per­formance of our duty as the one great nation at peace, the one people holding itself ready to play the part of impartial mediation and speak the counsels of peace and accommoda­tion, not as a partisan, but as a friend.... The United States must be neutral in fact as well as in name during these days that are to try men's souls. We must be impar­tial in thought as well as in action, must put a curb ... on every transaction that might be construed as a preference of one party to the struggle before another. My thought is of America ... this great country ofours; (that) she should show herself in this time of peculiar trial a nation fit beyond others to exhibit the fine poise of undisturbed judgment, the dignity of self control, the ef­ficiency of dispassionate action; a nation that neither sits in judgment upon others nor is disturbed in her own counsels and which keeps herself fit and free to do what is honest and disinterested and truly serviceable for the peace of the world. Shall we not resolve to put upon ourselves the re­straints which will bring to our people the happiness and the great and lasting influence for peace we covet for them?26 It was the human values in the midst of a world of war that were sensed as the spirit of this proclamation on the part of the President, for it was but a keynote to the policy which has been habitually American, to pay a high regard for the human element in all things. In the controversies to follow the outbreak of the war our commercial and very material interests were threatened, on the one hand, by the Allied Governments, whose position of maritime supremacy was such as to menace any neutral that thwarted their plans or crossed their path at. an inopportune moment, and, on the other hand, by the more immediately menacing con­trol of the lives of human beings which the Imperial Ger­man Government capriciously exercised in an endeavor to wrest for itself that maritime supremacy which it soughj: to dispute in a new fashion by unexampled means. Whether the whole of our country thus grasped the theme of our 2eJbid., pp. 17-18 (19.VIII.14) Controversy over Neutral Rights neutrality, whether the countries abroad were sufficiently · dispassionate to interpret its meaning, it is impossible to estimate, but that our policy throughout the period of neu­trality consistently upheld this view it is impossible to deny. It was a magnificent concept, but the responsibilities in­volved in it were many. As regards Panama, and the interoceanic canal over which the United States exercises control, it imme­diately devolved upon the President and the Department of State to take measures to safeguard the neutrality of the Canal Zone and its adjacent waters. This was accom­plished by the joint effort of the United States and Panama. On October 10, 1914, Mr. Lansing and Sefior Morales, the minister of the Republic of Panama at Washington, en­tered into a formal protocol to arrange that belligerent war vessels and their tenders should be allowed to coal in Panamanian waters only once in three months.21 Further­more, President Wilson issued a proclamation on Novem­ber 13, 1914, putting into effect a series of regulations gov­erning use of the Panama Canal by vessels and belligerents and the maintenance of neutrality by the United States in the Canal Zone. These defined the -..·e8sels to which the rules were applicable and forbade the furnishing of fuel, lubricants or supplies for either vessel or crew except un­der the most rigid supervision and in the smallest quanti­ties possible. No troops of any belligerent were to be dis­embarked unleis absolutely necessary, and the twenty-four hour rule, in addition to the time taken in passing through the canal or necessitated by storms, etc., was to be rigidly adhered to. However, no war-vessel of one belligerent was to be allowed to depart within twenty-four hours after the departure of a war-vessel of the opposite belligerent.28 Use of repair facilities was to be strictly limited to cases of urgent necessity. Radio installations were to be used only in canal business, and all air craft of a belligerent power, public or private, were forbidden to descend or arise within 21Ew No. 2, p. 18. isEw No. 2, pp. 18-20. the jurisdiction of the United States at the Canal Zone, or to pass through the air spaces above it. Despite these careful precautions, a slight controversy with Great Britain arose over the cases of the Mallina, Tre­meadow and Protesilaus, all British vessels which had gone through the Canal Zone, and who$e alleged violation of American neutrality was brought to the· attention of the Department of State by the German Ambassador at Wash­ington.29 Sir Cecil Spring-Rice, in a note of December 18, 1914, to Mr. Bryan cleared up the matter by a presentation of the facts which showed that the Mallina had put to sea without clearance papers, in violation of the canal regula­tions, because otherwise she would have been in the zone more than twenty-four hours, due to the delay in getting her papers through from the Canal Zone ·authorities, who were to send them to her along with some supplies. Fear­ing the possibilities of internment if she overstayed her time, she put to sea, preferring to violate the customs regu­lations of the Canal Zone rather than be interned, because she was particularly valuable to the Admiralty as a collier at this time. Concerning the Tremeadow, not even this al­legation could be made, hence.nothing was done in her case. In the case of the Protesilaus, accused of improper use of wireless in Panamanian waters, it was substantially proved that the Protesilaus had come into port without dismantling her wireless apparatus, as provided for by the Canal Zone regulations. While in port she received an Admiralty code message by wireless to be transmitted to the British Consul at Panama. She asked the land station to transmit the message in plain language, but was refused, whereupon her wireless was dismantled and not used again. These mat­ters having been communicated to Mr. Lansing, he replied on January 2, 1915, ·acknowledging receipt of the British note to that effect, and the matter was dropped. The Brit­ish allegation that the incidents were caused by tardiness of the United States in establishing neutrality rules for the 29/bid., pp. 23-25. Canal Zone seems to be sustained in point of fact, and the fact that no such incidents recurred after the Canal Zone Rule_s had been published by the Admiralty shows the in­tentions of the colliers concerned to have been substantially sincere in desiring to avoid any breaches of American neu­trality. The question of the use of wireless installations on land or in the territorial waters of the United States was a mat­ter of no little concern to the United States, and the gen­eral attitude of the State Department is given in an ap­pendix.30 Much earlier, however, the President had issued executive orders preventing radio stations within the juris­diction of the United States of America from transmitting or receiving for delivery messages of an unneutral nature, and from in any way rendering to any one of the belliger­ents any unneutral service during the continuance of hos­tilities. The enforcement of this order was left to the Navy Deparlment.31 By a later order, the United States, under the Radio Act of August 13, 1912, took over the high-pow­ered radio stations for exclusive use and control over trans­Atlantic communication with Europe in code and cipher messages. This was in pursuance of the third, fifth and eighth articles of the Fifth Convention of 1907 signed at the Hague, whereby belligerents were forbidden ·(a) to erect on the territory of a neutral state a wireless te­legraphy station or any other apparatus for the purpose of communicating with the belligerent forces on land or sea; (b) to use any installation of this kind established by them before the war on the territory of a neutral state for pure­ly military purposes, and which had not been opened for the service of public messages, and neutrals were called upon to suppress such acts in violation of their neutrality if occurring on their territory, but were not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private indi­ 30 Bryan to Stone (20.I.15), EW No. 2, p. 58 (p. 181, i nfra). 31EW No. 2, p. 71. (5.VIIl.14). University of 1'exas Bulletin viduals. This point can best be illustrated by the resolution of the British delegation at the Hague in 1907 that it be specified that "the liberty of a neutral state to transmit massages, by means of its telegraph lines on land, its sub­marine cables or its wireless apparatus, does not imply that it has any right to use them or permit their use in or­der to render manifest assistance to one of the belliger­ents."32 Almost concurrently arose a controversy, more dilettante than juridical, over the British and French censorship of messages transmitted by cable or wireless. The demands of the British censor that telegraph companies write out in full all addresses, the charging of expense to the sender for decoding and recoding, for translation and retranslation all led to protests from the State Department, but the chief complaint was made when the British censors started sup­pressing cable communications to and from neutral coun­tries. This considerably curtailed American trade with neutral countries and the State Department was peculiarly insistent in stressing the hardships caused by suppressions when the senders were informed of nothing concerning the non-delivery of the massages-a claim which the British Government refuted by saying that to notify the sender of non-delivery of his telegrams would be to defeat the object of censorship. The legal grounds taken by Great Britain were that under Article 8 of the International Telegraphic Convention the contracting states reserved the right to sus­pend the telegraphic service for an indefinite period. Such a notice was issued by the British Government when the present emergency arose, but in order to avoid the in­convenience which would have arisen from a total stoppage of communication, it was decided as an act of grace to ac­cept telegrams for transmission on the understanding that they were to be accepted at the sender's risk and subject to censorship by the British authorities; that is, that they might be stopped, delayed or otherwise dealt with by the a2 scott, R eports, pp. 539-543, pa ;•:im. censors, and that no claim for reimbursement could be en­ terained.aa In other cases, the British Government asked particular instances to be furnished where redress was sought by neu­tral countries or merchants. As the only effective evidence was in the hands of the British censor, it was manifestly impossible for neutrals to fulfil the conditions laid down by the British Government as precedents to redress. By December, 1914, the French Government began to relax its vigilance in the censorship of cablegrams and ac­cepted code messages for France, Algiers, and Tunis, speci­fying the codes to be used. This lack of concerted measures between the British and French Governments led to repre­sentations made by the State Department to Great Britain on December 3, 1914, in regard to discriminations "against American cablers who desire to use American cables instead of those of the French company, which is a foreign con­carn."~~ In reply, the British Government authorized sev­eral codes to be used for cotton transactions, which were still held to be transactions in non-contraband goods, and suggested the omission of technical words in ordinary un­coded telegrams, as these were likely to be regarded as sus­picious or as endeavors to use a concealed cipher or code. Further protests were made to the British Government con­cerning the censorship of cables being forwarded to France, as this was a double consorship. Finally, on December 18, 1914, the British Government issued a memorandum per­mitting the resumption of code service between the United Kingdom and certain foreign countries, with, however, very considerable exceptions. 35 In reply to the request made by Ambassador Page at Loru:Ion that the Embassy be informed of telegrams stopped, with the reason for their being stopped, the British Embassy at Washington stated that "whenever the date of the despatch and addresses of sender 33The British Post Master General to the Political Department of the Swiss Confederation, EW No. 2, p. 77 (2.Xl.14) . a•EW No. 2, p. 81. (3.Xll.14) . as[f>id, pp. 84-5. (18.XII.14). University of 1'exas Bulletin and destined receiver were given, the censor would inform the United States Ambassador in London whether the cable had been stopped and the reasons for stopping it."36 The censoring of messages passing from the United States to South America through British-owned cables out­side of the European system was another source of griev­ance to the United States and formed the subject of several representations on the part of the State Department to the British Government.37 In this respect at least, the Foreign Office heeded the protests of the United States and replied that the attention of the censors· had been called to the ex­isting regulations on the subject and that the British Government would pass all messages between North and South American countries sent by way of the United King­dom, but Mr. Page was constrained to suggest, in his trans­mission of the memorandum, that Americans wishing to send messages to South American countries should be ad:.. vised if possible to use non-British cables to escape annoy­ances. A point in the controversy which is not altogether credit­able to the United States is the charge brought by the Brit­ish Government against the Department of State for hav­ing transmitted as official business commercial telegrams from American firms to British or neutral countries. The matter was brought to the attention of Mr. Page by Sir Edward Grey in a note verbale of November 17, 1914, which is not obtainable, to the effect that "certain telegrams from private individuals and commercial firms, detrimental to British interests were being sent through the State De­partment," and that "the censorship authorities had brought to Sir Edward Grey's nolice the fact that this prac­tice still continued." The Foreign Secretary went on to point out that as the State Department messages were given priority over ordinary messages of a commercial nature, this practice was unfair to British traders, besides afford­ 3UJbid., pp. 85. (21.XIl.14). 31EW No. 2, pp. 93-4. (13,27.V; 3.VI.15) . Controversy over Neutral Rights ing means of intercourse with the enemy which the British Government could not brook.38 On March 16, 1915, Mr. Bryan replied in a carefully pre­pared dispatch to Mr. Page, stating that the Department of State had sent instructions to all consular and diplomatic officers to discontinue, until they were further instructed, the forwarding of private commercial messages on the ground that the British Government had raised objections to such a practice. The United States understood, however, that the objections raised by the British Government were not ba2ed upon the suspicion that the messages were in pri­vate code or conveyed a double meaning, but that they were destined to enemy territory. While ignoring the charge that this practice was unfair to other traders, Mr. Bryan added that it was understood that the British Government recognized the importance, as a matter of policy and good relationship at least, of not exercising the right of censor­ship in a way to interfere with legitimate American com­mercial transactions with neutral countries.39 The last topic connected with the use of telegraphs was raised by the regulation of the British censors providing that only messages passing between diplomatic missions and their home government might go in 'cipher, and that all others must be open.40 This of course dep.rived the Am­bassador at Berlin of the privilege of communicating with Paris or London by cipher messages, and made it necessary to handle all the business entrusted to them in plain lan­guage. The commanding officer of the United States troops at Tientsin sent a code message on August 21, and one on August 22, to the commanding general in the Philippines: via Hong Kong, so they were held up by the British censor and not allowed to go through. This was made the subject of a note from Sir Edward Grey to Ambassador Page, who forwarded theni, under date of October 23, 1914, to the Department of State.41 The seeming negligence of 3Sfbid., p. 91. (5.III.15). 39EW No. 2, pp. 91-2. (16.III.15) .• 4ofbid., p. 72 (27.VIII.14). 41Jbid., p. 75. (23.X.14). the Department of State in making these regulations known to all the diplomatic missions of the United States led to an informal request of the British Government that this be done, as Minister Reinsch at Peking had violated this pro­priety by sending a coded message to the American Con­sul General at Hong Kong.42 This was brought to Minister Reinsch's attention with an injunction to remember the regulations.4 3 Akin to the question of telegrams and wireless messages is the subject of the transmission of mail of American diplomatic and consular officers. This formed the subject of correspondence between all the belligerent governments and the United States, as a result of which the various gov­ernments consented to regard the mail-pouches of the dip­lomatic missions of the United States as inviolable if they were under the seal of the office; if no correspondence of private individuals other than diplomatic or consular offi­cers or employees of American missions or consulates ad­dressed to private individuals in the United States were sent in the pouches; if all official correspondence of diplo­matic and consular officers to individuals outside of the De­partment were marked "Official Business" and left un­sealed; and. it communications from either private indi­viduals, American or alien, in belligerent countries to pri­vate individuals or agents in the United States were ex­cluded from the pouches. These regulations were the re­sult of agreements arrived at by diplomatic discussion and embodied in two circulars issued by the State Department, on December 18, 1914, and April 23, 1915, respectively. These regulations lasted throughout the period of Ameri­can neutrality, after which the mail-pouches of missions in Allied countries were thrown to have had the temerity to acknowl­edge the logical consequences of the far-reaching extension of con­traband lists. W/bid., pp. 109-113. ( 13.IV.16). number of vessels laden with American goods destined to neutral ports in Europe; the taking of these vessels into British ports and their protracted detention by the British authorities. Despite the announcement by the For­eign Office that it was satisfied with guarantees offered by the Norwegian, Swedish and Danish Governments as to non-exportation of contraband goods when consigned to named persons in those countries, and the consequent ex­pectation of the United States Government that the seiz­ures earlier occasioned by the sudden outbreak of war would cease, the greater freedom from detention and seiz­ure resulting from shipments to definite consignees rather than "to order" was still awaited. While admitting the right of belligerents to interfere with commerce only to the extent that such interference was a manifest and impera­tive necessity, the Government of the United States was forced to the conclusion that the policy of the British Gov­ernment exceeded manifest necessities and constituted un­justified restrictions upo:n the rights of American citizens on the high seas. The Government of the United States does not intend at this time to discuss the propriety of including certain ar­ticles in the lists of absolute and conditional contraband . . . Open to objection as some of these seem to this Government, the chief ground of present complaint is the treatment of cargoes of both classes when bound to neutral ports. In this particular admission lay the reason for the fail­ure of the position taken by the United States to bring about the slightest vestige of conformity to the principles of the Declaration of London. Even so, on the basis of the general principles of international law, to which the United States Government had ultimately resorted, there was no warrant for such an indiscriminate extension of the con­traband lists as was being effected by the British Govern­ment, inasmuch as its own position in the Russo-Japanese War had been distinctly averse to the extension of the lists of contraband. Had an earlier endeavor to enforce con­formity to a more equitable standard been made, it is pos­sible that some response would have resulted; by delay and· indecision, by staving off the controversy, the case for the extension of contraband lists was materially strengthened, and the "free list" doomed to ultimate extinction. As regards absolute contraband, complaint was made of the capricious treatment accorded such shipments to neu­tral countries, and the claim was made that a legitimate trade was being greatly impaired by the uncertainty as to the treatment that the British authorities might impose upon it. Conditional contraband had been subjected to similar treatment. The seizure of "foodstuffs and other articles· which are admittedly relative contraband" in spite of the presumption of innocent use because of neutral des­tination, merely on suspicion, and not upon actual evidence, because of a belief or a mere fear that such was not their real destination, was a practice condemned by British prac­tice during the South African War: "Foodstuffs, though having a hostile destination, can be considered contraband of war only if they are for the enemy's forces; it is not suf­ficient that they are capable of being so used, it must be shown that this was in fact their destination at the time of their seizure." On this historic doctrine laid down by the British Government the American citizen was entitled to rely. As regards the right of a belligerent to visit and search on the high seas the vessels of American citizens or other neutral vessels carrying American goods, and to detain them when there was sufficient evidence for so doing, when there was a belief that they carried a contraband cargo, the Government of the United States willingly conceded this right, but could not without protest permit American ships or American cargoes to be taken into British ports and there detained for the purpose of searching generally for evidence of contraband, "or upon presumptions created by special municipal enactments which are clearly at variance with international law and practice."* *The distinction between the International Law of Prize, sanc­tioned by convention and custom, gathering force from precedent to precedent, and the municipal Prize Law of a given country is to be kept clearly in mind. The former represents the standard set in the Controversy over Neutral Rights accepted or unquestioned law of nations; the latter, the particular standard set by a given country in its interpretation of its bellig­ erent rights. The classical definition of "prize" has been given in the words of Lord Mersey155 ·as "the term applied to a ship or goods captured jure belli by the maritime force of a belligerent at sea or seized in port." The Law of Prize is found embodied in such con­ventions as the ninth, eleventh and thirteenth Conventions of the Second Hague Conference, and in such declarations as the Declara­tion of Paris. The Prize Law of any given country is to be found in the law which its prize courts interpret, and such, whether in America or abroad, is based on precedent and on domestic ordinances which may at any time, and usually do, take precedence over inter­national practice, at the whim of the executive concerned. The practice of prize courts is regulated by rules of court made by the Privy Council, which must be kept exhibited in a conspicuous place in each court to which they relate. In all cases not provided for by the rules, the practice is to be governed either by the old Admiralty Court practice or by such practice as the President may direct.1ss This is typical of the definitions of municipal prize law and its scope. The difficulties in protecting neutrals and their rights lie in the fact that the stringent measures adopted by a belligerent may over­step the requirements established under general international prac­tice and that there is no diplomatic redress for an aggrieved neutral who has once submitted his case to the decision of a prize court. This was one of the facts leading to the discretionary power given to the proposed international prize court to lessen the effects of such legis­lative regulations as Orders in Council or decrees and the very in­sistence of the United States Government on this point in the course of its protracted discussions with Great Britain on this point cannot be too strongly emphasized. It has been the aim of the United States to keep the Prize Court unfettered by such rigid legislation as would annihilate neutral rights in the long run. To seek redress of griev­ances in a court bound by the enactments of a belligerent power clearly overstepping the bounds of accepted international law is an impossibility for a neutral nation, despite the declarations of learned judges to the contrary. National Prize Courts are subject to the instructions of their own sovereign, whether or not these be consistent with 155Earl of Halsbury, The Lau·s of England, Vol. XXIII, p. 276. 156Tiverton, Prize Law, pp. 1-2. University of Texas Bulletin the ordinary rules of international law. It is for this reason that neutral states do not consider themselves bound by the judgments of Prize Courts.1°1 In this particular respect the United States laid down its fi.rm attitude in denying the British doctrine that Or­ders in Council, the "special municipal enactments" in question, could have the validity of international law. This attitude has been traditional on the part of the United States since the days of the Wars of the French Revolu­tion, and the experience gained at that time has been a sufficient deterrent from the acceptance of any such de­crees or Orders in Council as in any way binding upon the United States. The last point raised in the note dealt with the grievance of American industries in being denied access to long es­tablished markets in Europe purely because those markets were in neutral countries contiguous to the enemies of Great Britain. On the ground of this undue interference in commerce with neutrals from the United States, the note requested that the British Government instruct its officials to refrain from all unnecessary interference with the free­dom of trade between neutrals and to conform more clearly to the traditional British practice as regards the maritime relations between neutrals and belligerents.158 To this Sir Edward Grey replied on January 7, 1915, that the British Government concurred in the American view that belligerents should not interfere in the trade of neutrals so long as it was bona fide, or unless it interfered with the belligerent's national safety; and that the British Government were ready to make redress at any time that they exceeded this principle. The note then quoted at length figures to prove that American trade had by no means declined, inasmuch as exports to the smaller coun­tries of Europe had greatly increased. Where it was shown that consignments such as aluminum had an ultimate enemy though an ostensible neutral destination it was not believed 157Cohen, Declaration of London, p. 4. HBEW No. 1, pp. 39-41. (26.XII.14). Controversy over N eutral Rights that the United States Government would question the pro­priety of taking such suspected cargoes to a Prize Court, or object to the use of legitimate means to prevent such articles from reaching the enemy. Regarding foodstuffs, the British Government gave no unlimited or unconditional undertaking to prevent their detention unless it were shown that they were destined for the use of the armed forces or government of the enemy. Cotton was to be maintained on the "free list," though investigation of cotton cargoes for concealed contraband would be continually necessary. Such search, the note continued, would have to be made in port; in no other way could the right of search be ex­ercised, and but for this practice it would have to be com­pletely abandoned. This statement can not be too highly emphasized for its importance in determining the policy of the United States and Great Britain towards search. The mere statement of the absolute necessity for such ac­tion at a time when submarine warfare had not as yet begun is of the utmost importance. No complaint could be offered as to the action of neutral Governments adjoin­ing the territory of Great Britain's enemies, although the danger that they would become a base of supplies for the armed forces of the enemies and for materials for the manufacture of armaments was increasingly pressing. The interception of goods really destined to the enemy without interference in bona fide neutral commerce was thus effected, as the United States had agreed, only in the interest of the national safety of Great Britain. While not contesting the principles of law on which the action of the United States was based, and desiring to restrict such in­terference solely to contraband destined for the enemy, any arrangement whereby delays would be avoided and the innocence of the cargoes easily proven, would be welcomed, as the British Government had no desire to interfere with normal commerce from the United States to neutral coun­tries.150 is9EW No. 1, pp. 41-44. (7.I.15). University of Texas Bulletin In a letter to Senator Stone on January 20, 1915, Mr. Bryan laid down the view that in the opinion of the United States Government the inclusion of petrol, petroleum prod­ucts and rubber by the Allied Governments in their con­traband lists was not improper, due to the absolute neces­sity of such products for the use of submarines, aeroplanes and motors. It was therefore difficult, as these were di­rectly essential to the pursuit of military operations, to argue against their inclusion in the lists of contraband.160 On February 10, 1915, Sir Edward Grey sent a more de­tailed note covering the points raised in the first American note.161 In it an endeavor was made to show that Ameri­can trade had substantially increased and that a substantial part of this trade was intended for the enemy countries. going through neutral ports by routes to which it was pre­viously unaccustomed. The shortages in means of ocean transportation were due to the general existence of war and not to British interference. It was open to American own­ers or shippers interested in detained ships to apply to the Prize Court for release of the ships on bail. Speedy dis­charge of detained cargoes was being pushed in order to relieve the acute shortage of shipping from which Great Britain was herself the worst sufferer; condemned ships likewise were being rapidly sold. German ships detained in British harbors by the outbreak of war were being re­quisitioned to relieve the shortage. · In reviewing the principles of international law on which British policy was based, the fundamental principle was that belligerents are entitled to capture contraband goods on their way to the enemy. The doctrine of continuous voyage, introduced and extended during the Civil War by the United States formed the second basis of belligerent right to capture contraband destined directly or indirectly for the enemy. What steps should be taken to detect the existence of such contraband trade, it was the main object 1s0Ew No. 2, p. 60. (20.I.15). 1s1EW No. 1, pp. 44-52. (10.II.15). Controversy over Neutral Rights of British policy to determine, in view of persistent and systematic efforts at concealment, hence it was essential that His Majesty's Government should be entitled to make, and should make careful enquiry with regard to the particular destination of goods shipped, even at the risk of some slight delay to the parties interested. If such en­quiries were not made, either the exercise of British bel­ligerent rights would have to be abandoned, ... or else it would be necessary to indulge in indiscriminate captures of neutral goods and their detention throughout all the period of the resulting prize court proceedings. The results of such inquiry tended to permit the release of most vessels without unconscionable delay or loss, when the innocent nature or destination of their cargoes was es­tablished. The practice of inquiry, then, may be said to have been the principal new departure in British practice, "but if it is correctly described as a new departure, it is a departure which is wholly to the advantage of neutrals, and which has been made for the purpose of relieving them so far as possible from loss or inconvenience." The contention of the British note may be warranted to this extent: that the conditions under which contraband is shipped do necessarily entail an inquiry, but the point arises at once as to what that place of inquiry shall be. Shall it be on the high seas or in port? Shali it be effected within or without the territorial jurisdiction of a belliger­ent? Mr. Bryan had stated on January 20, 1915, that an American private vessel entering voluntarily the territorial waters of a belligerent became at once subject to the mwni­cipal law of that belligerent. What was to be said of aves­sel taken into port by force majeure, or under any other form of duress? The United States had already made known its opinion in this regard in a note addressed by the State Department to the British Ambassador on November 7, but which was not published by the State Department. In this the United States declared that in its opinion the belligerent right of visit and search required that the search should be made University of Texas Bulletin on the high seas at the time of the visit, and that the con­clusion of the search should rest upon the evidence found on the ship under investigation, and not upo:p. circumstances ascertained from external sources.161 • To this the British Government was unable to accede, pointing out that both British and American prize court decisions had admitted the necessity for giving the bellig­erent captor full liberty to establish by all the evidence at his disposal the enemy destination of goods. Apart from the question of searching vessels in port, it was claimed that it was an absolute necessity to bring a vessel into quiet water in order that the visiting officer might go aboard, which right, if denied, would make the right of visit and search a mere nullity. "If the circumstances ar:e such as to render it impossible to carry it out at the spot where the vessel is met with, the only practicable course is to take the ship to some more convenient locality for the purpose. To do so is not to be looked upon as a new belligerent right, but as an adaptation of the existing right to the modern conditions of commerce." It was for this reason that neutral ships had been "en­couraged" to visit British ports in order that the examina­tion might take place conveniently. "The alternative would be to keep a vessel which the naval officers desired to board waiting . . . imtil the weather conditions enabled the visit to be carried out at sea." To harmonize belligerent action and neutral right, therefore, Great Britain had instituted means to facilitate alike compensation for costs, and dam­ages incident to such delays pending investigation. The encfeavors of neutrals engaged in surreptitious trade to secure diplomatic instead of legal redress could not be ac­ceded to; when an effective mode of redress is open to them in the courts of a civilized country by which they can obtain ade­quate satisfaction for any invasion of their rights which is contrary to the law of nations, the only course which is con­sistent with sound principle is that they should be referred i61aEW No. 1, p. 48. to that mode of redress and that no diplomatic action should be taken until their legal remedies have been exhausted, and they are in a position to show prima f acie denial of justice. This the British Government maintained to have been its attitude in previous wars, and during the Spanish-Ameri­can War. Here again it must be particularly insisted upon that this attitude taken by the British Government was one of the most keenly disputed points at issue between the United States and Great Britain, inasmuch as to have countenanced the subjection to prize courts of the cases of all American citizens would have meant a complete surrender to the methods or orders in force in such prize courts as Great Britain might establish. These prize courts were bound by an Order in Council of August 6, 1914,'~2 to hear and determine prize cases according to the course of admiralty (which was in effect an injunction to follow the political acts of the government) and the law of nations and the statutes, rules, and regulations for the time being in force in that behalf. The question at once arises as to whether a court of this nature is bound by the municipal enactments, rules, etc., of the country if they are contrary to the rules of international law. In this connection it will be advisable to quote the decision laid down by the Privy Council in the case of the Zamora in 1916 concerning the relation of Or­ders in Council to international law: The Prize Court Rules derive their force from Orders of His Majesty in Council .. . So far, therefore, as the Prize Court Rules relate to procedure and practice, they have statutory force and are, undoubtedly, binding. ... The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be ad­ministered by courts of law in this country is out of har­mony with the principles of our constitution.... A Prize Court must of course deal judicially with all questions which come before it for determination," and it would be im­possible for it to act judicially if it were bound to take its is2Tiverton, Prize Law, p. 4. orders from one of the parties to the proceedings . . . The law which the Prize Court is to administer is not the muni­cipal law, but the law of nations ... The Prize Court is a municipal court and its decrees and orders owe their va­lidity to J11Unicipal law. The law which it enforces may, therefore, in one sense, be considered a branch of municipal law. Nevertheless, this distinction between municipal law and international law is well defined. A court which admin­isters municipal law is bound by and gives effect to the law as laid down by the sovereign state which calls it into being. It need only inquire what that law is, but a court which administers international law must ascertain and give effect to a law which is not laid down by any particu­lar state, but originates 'in the practice and usage long ob­served by civilized nations in their relations towards each othe:r or in express international agreement. It is obvious that, if and so far as a Court of Prize in this country is bound by and gives effect to Orders of the King in Council purporting to prescribe or alter the international law, it is administering not international law but municipal law; for an exercise of the prerogative cannot impose legal obliga­tions on anyone outside the King's dominions who is not the King's subject. If an Order in Council were binding on the Prize Court, such court might be compelled to act contrary to the express terms of the commission from which it derived its jurisdiction.... It follows that but for the existence of Courts of Prize no one aggrieved by the acts of a belligerent power in times of war could obtain redress otherwise than through diplo­matic channels and at the risk of disturbing international amity. An appropriate remedy is, however, provided by the fact that, according to international law, ·every bellig­erent power must appoint and submit to the jurisdiction of a Prize Court to which any person aggrieved by its acts has access, and which administers international as opposed to municipal law-a law which is theoretically the same, whether the court which administers it is constituted un­der the 'municipal law of the belligerent power or of the sovereign of the person aggrieved, and is equally binding on both parties to the litigation. It has long been well set­tled by diplomatic usage that in view of the remedy thus afforded, a neutral aggrieved by any act of a belligerent power cognizable in ·a Court of Prize ought, before res0rt­ing to diplomatic intervention, to exhaust this re1;1edy in the Prize Courts of the belligerent power .. . It is obvi­ous, that the reason for this rule of diplomacy would en­ Controversy over Neutral Rights tirely vanish if a Court of Prize, while nominally adminis­tering a law of international obligation, were in reality acting under the directions of the executive of th2 oelliger­ent power ... It cannot, of course, be disputed that a Prize Court, like any other court, is bound by the legislative enactments of its own sovereign state. ... The fact, however, tbat the Prize Courts in this country would be bound by acts of the Imperial Legislature afford no ground for arguing that they are bound by the executive orders of the King in Coun­cil. ... If the Court is to decide judicially in accordance with what it conceives to be the law of nations, it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings. It must itself deter­mine what the law is, according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order. Only in this way can it fulfill its functions as a Prize Court an{! justify the con­fidence which other i{ations have hitherto placed in its de­cisions. It cannot be assumed, until there be a decision of the Prize Court to that effect, that any executive order is con­trary to law, and all such orders, if acquiesced in and not declared to be illegal, will, in course of time, be themselves evidence by which international law and usage may be es­tablished.163 Having thus explained the British position legally, we may return to examine the other circumstances laid down in the remainder o1 the British note. In order to avoid delays in regard to ships, interdepartmental committees had been established to care for detained ships. Concern­ing conditional contraband shipments, the note pointed out that the Order in Council of October 29 drew no distinction in the application of the doctrine of continuous voyage be­tween absolute and conditional contraband, and placed t~pon the neutral power of the contraband somewhat drastic con­ditions as to the burden of proof of the guilt or innocence of the shipment. The criticisms of this as first embodied in the Order in Council of August 20, 1914, made hy the 163The Zamora, Law Reports, 1916, 2 A.C. 77 et seq. Cf. also Trehern, British and Colonial Prize Cases, II, 13. University of Texas Bulletin United States in "prolonged discussion::;" which have never been made public164 had caused the drafting of the Order in Council of October 29, 1914, as a partial conce~sion to the views of the United States. It scarcely seems necessary to remark that the Order in Council really wen-~ far in impos­ing a very considerable burden on neutrals rather than lightening their burdens. In effect it tended to make the neutral assume the onus probancli which was properly to be shouldered by the belligerent. Regarding foodstuffs, the note cited the views of Bis­marck to show that the German Government had consist­ently held that the interception of foodstuffs was a per­fectly legitimate measure. Furthermore, the distinction between civilian and military population in the Central Empires had ceased, in practice, to exist, due to Govern­ment control of foodstuffs. On this account there were grave fears that it would be impossible to permit the free passage of foodstuffs, particularly in view of German meas­ures for the interception of commerce with Great Britain. Evidence of further concessions to American commerce was shown in the establishment of a special committee to authorize the release of goods without insisting on full evi­dence of title being produced. Thus claimants were per­mitted to recover their goods with little delay. The Brit­ish Government had, furthermore, dealt leniently with neu­trals in regard to the transfer to a neutral flag of enemy ships belonging to companies incorporated in enemy terri­tory but entirely composed of neutral shareholders. The note closed with the hope that it would be apparent to ·the United States that Great Britain was making every pos­sible consideration for neutrals. In a note of February 20, 1915, sent both to England and Germany, a modus vivendi to avoid the horrors of subma­rine warfare was proposed.165 Great Britain was to agree that food and foodstuffs would not be placed upon the abso- 16•Ew No. 1, p. 50. (10.11.15). m ]bid., pp. 59-60. (20.11.15). • lute contraband list and that shipments of such commodi­ties would not be interfered with or detained by British authorities if consigned to agencies designated by the United States Government in Germany for the receipt and distribution of such cargoes to licensed retailers for dis­tribution solely to the non-combatant population. This was proposed much in the same spirit as that which prompted the organization of the Commission for Relief in Belgium, and, while accepted by the German Government, was abso­lutely ignored by the Allied Governments.166 On March 1, 1915, a note from the British Embassy in­dicated that the Allied Governments were being driven by the actions of the German Government to frame retaliatory measures to prevent commodities of any kind from reaching Germany. These measures would be enforced without risk to neutral ships or to neutral or non-combatant lives. They held themselves free, therefore, to detain and take into port ships carrying goods of presumed enemy destination, own­ership or origin. Such vessels or cargoes would not be con­fiscated unless otherwise liable to condemnation.167 It is to be noted that the question of enemy destination is alone a question to be treated under the head of contraband, as the question of ownership or origin depends entirely upon other considerations than those dealt with under the head of contraband. On March 5, 1915, the United States addressed identic notes to the French and British Governments stating that the action of the United States upon the Allied declara­ tions of retaliation was rendered difficult by reason of the nature of the measures proposed, which were extremely indefinite, in so far as they affected neutrals. While a blockade was implied, it was not asserted, rights both inci­ dent to contraband and biockade were enunciated, and the United States was left in a quandary as to what should be done. In the case of enemy "ownership or origin," the im­ plications attached thereto were that these tests were those 1G6fbid., pp. 60-61. (28.Jl.15). is1 Ibid., pp. 61-62. (1.III.15). to be applied to goods breaking blockade outwards. If a blockade was to be dedared, some limit must be set upon the radius of activity, for the United States would be deep­ly concerned in the application of the principles of block­ade to a zone far distant from the scene of actual naval operations.168 The French and British Governments replied separately; the ·French Government reserving to itself the right of bringing into a French or Allied port any ships carrying a cargo presumed to be of German origin, destination, or ownership, but stating that it would not go to the length of seizing any neutral ship except in case of contraband. Discharged cargoes would not be confiscated, but neutrals proving lawful ownership of goods destined to Germany would be entirely free to dispose of them subject to certain conditions. German-owned goods would be sequestrated. Merchandise of enemy origin, when possessed by an enemy, would also be sequestrated, but merchandise belonging to neutrals would be held at the owner's disposal to be re­turned to the .port of departure. Prize Courts were to take cognizance of these situations and decide cases within eight days. Last of all, the announcement was made that the Allied French and British fleets had examined "wbat meas­ures they could adopt to interrupt all maritime communica­tion with the German Empire and thus keep it blockaded by the naval power of the two allies. Assurance was given that it was not and had never been the intention of the French Government to extend the action of its cruisers against enemy merchandise beyond European seas, the Mediterranean included.169 The British view was presented in two notes under dates of March 13 and 15, 1915, which stated that110 Inasmuch as the stoppage of all foodstuffs is an admitted consequence of blockade, it is obvious that there can be no universal rule based on considerations of morality and hu.­ 16BEW No. 1, pp. 62-63. (5.III.15). 169EW No. 1, pp. 63. (14.111.15). HO/bid., pp. 64-65. (13.III.15; 15.III.15). 105 manity which is contrary to this practice. The right to stop foodstuffs destined for the civil population must there­ fore in any case be admitted if an effective "cordon" con­ trolling intercourse with the enemy is drawn, announced and maintained. Moreover, independently of rights aris­ ing from belligerent action in the nature of a blockade, some other nations, differing from the opinion of the Governments of the United States and Great Britain, have held that to stop the food of the civil population is a natural a11d legit­imate method of bringing pressure to bear upon an enemy country ... 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. . . . The degree of severity with which the measures of blockade authorized will be put into operation ... will de­pend on the administrative orders issued by the Government and the decisions of the authorities specially charged with the duty of dealing with individual ships and cargoes ac-. cording to the merits of each case . . . The instructions to be issued by His Majesty's Government to the fleet and to the customs authorities and executive committees concerned will impress upon them the duty of acting with the utmost dispatch and consideration for neutrals as may be compati­ble with the object in view, which is, succinctly stated, to establish a blockade to prevent vessels from carrying goods for or coming from Germany. His Majesty's Government declare their intention to re­frain altogether from the exercise of the right to confiscate ships or cargoes which belligerents have always claimed in respect to breaches of blocka_de. They restrict their claim to the stopping of cargoes destined for or coming from the enemy's territory ... It is not intended to interfere with neutral vessels carrying enemy cargo of non-contraband nature outside European waters, including the Mediter­ranian. Thus was the long expected blockade announced. With its development and extension, its workings upon the enemy and upon neutrals we are not here concerned; it will form the topic of a later chapter. It is sufficient to remark that University of Texas Bulletin from this time on the problem of the restraints on Ameri­can commerce formed a topic in which these two lines­those of contraband and blockade-were doubly interwoven. In so far as possible, the endeavor will be made to deter­mine the outcome of each line of policy. independently. . In reply to these notes of the British Government, the Department of State, on March 30, 1915, made clear its position as regards the measures to be taken by the Allied Governments, holding that they amounted to a practical assertion of unlimited belligerent rights over neutral com­merce within the whole European area, and an almost un­qualified denial of the sovereign rights of the nations now at peace. The note then went on to point out what these rights were : 171 A nation's sovereignty over its own ships and citizens un­der its own flag on the high seas in time of peace is un­limited; and that sovereignty suffers .no diminution in time of war, except in so far as the practice and consent of civi­lized nations has limited it by the recognition of certain clearly determined rights which it is conceded may be ex­ercised by nations which are at war. A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation, if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war in­tended for the enemy government or armed forces. It has even been conceded the right to establish and maintain a blockade of an enemy's ports and coasts and to capture and condemn any vessel taken in trying to break the blockade. It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral or con­traband service and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and in practice, have hitherto been held to be the only permissible exceptions to the principle of universal equality of sovereignty on the high seas as between bellig­erents and nations not engaged in war. The remainder of the note dealt with blockade. At this point it will be well to deal with several cases of i11EW No. 1, p. 69. (30.111.15) . Controversy over Neutral Rights detentions, pointing out what purpose they served in clear­ing up the British viewpoint as to restrictions on contra­band. The first of such cases is that of the Wilhelrnina, an American ship laden with foodstuffs from an American port to Hamburg, where the manager of the company own­ing the cargo, an American representative of an American firm, had instructions to sell the cargo solely to the civilian population of Hamburg. The vessel was seized by the Brit­ish authorities and the cargo was sent to the prize court. At this point, on February 15, 1915, the State Department sent a note submitting that, according to sworn evidence · and the ship's manifest, the cargo was destined for the civilian population of Hamburg and no one else. The Brit­ish ground of justification of the cargo, that it was subject to the control of the German authorities, having proven unfounded according to the terms of a decree of the Ger­man Bundesrat, and special assurances having been direct­ly given to the United States by the German Government that the cargo would not be used otherwise, the United States asked the British Government to release the vessel and allow her to proceed to her port of destination unless other evidence were found on which to detain her.172 Sir Edward Grey replied on February 19, 1915, to the effect that the exception of imported foodstuffs from Gov­ernment control in Germany as alleged by the decree of the Bundesrat was a matter for prize court determination; the treatment by the German Government of cargoes of foodstuffs destined for undefended ports as though going to an "armed base" of the enemy led the British Govern­ment to accord a like status to Hamburg, which was forti­fied; furthermore, the owners of the Wilhelmina would be equitably indemnified if the cargo was found to be contra­band. If, therefore, the British Government should, in view of enemy practices, declare foodstuffs absolute con­traband, it was not to be expected that neutrals would chal­lenge the validity of such reprisals.173 112Ew No. 1,, pp. 81-82. (15.11.15). 173/bid., pp. 82-83. ( 19.11.15). University of Texas Bulletin In view of the developments as to blockade while the case was pending in the prize court the decision of the prize court could not possibly have changed the determination of the British Government to hold the cargo as absolute con­traband. Therefore, after having held the cargo at Fal­mouth from February 11 till April 7, 1915, it was proposed that the British Government, acting by virtue of an Order in Council of March 23, 1915, 174 to purchase the cargo of the Wilhelmina and compensate the owners for the delay thus caused. This Order in Council was proclaimed with the in­tention of requisitioning ships, and detailed the procedure therefor. The owners of the Wilhelmina accepted the ar­rangement and the case was closed. It had been intended to use the case of the Wilhelmina as an instance of the car­riage of a conditional contraband cargo permitted by earlier Orders in Council. The proclamation of the blockade made the carrying out of this project impossible. The American steamship Wico, carrying a cargo of oil to Stockholm, was detained in Great Britain en route to Sweden pending assurances from the Swedish Government that such a cargo would not be captured by the German naval forces. On March 20, 1915, Mr. Bryan instructed Mr. Page to verify the attitude of the British Government in the matter, and, having done so, to demand the release of the vessel, as the United States could not admit the right of Great Britain to detain the vessel pending an answer made to a demand on a non-belligerent country, with which that country would be unable to comply, as no neutral could be expected to give assurances that the ship of an­other neutral would not be held up by the forces of another belligerent government. While the British Government released the vessel, reserving the right to reconsider its action in future cases, the United States notified Great Brit­ain that such seizures by Germany would be subject of dis­cussions between the United States and Germany, and could afford no basis for the recurrepce of such action on t14EW No. 1, pp. 72-75. (23.111.15). the part of the British authorities. In reply, the British Government declared that such had not been their inten­tion, but that they believed that the United States Govern­ment would not question the holding up of neutral ships where there was good reason to believe that the ostensible was not the real destination and that fraudulent arrange­ments had been concerted with enemy cruisers for deliver­ing ships and cargo into their hands. Thereupon the United States dropped the case.1 75 Due to ·the Detention of the American ship Seguranca, bound from New York to Holland with a cargo entirely con­signed to named consignees in Holland and accompanied by a certificate from the British Consul General in New York, the Department of State advised the British Govern­ment through Ambassador Page that the United States would support the claims of the owners of the vessel for damages for detention, as the United States did not admit the right of Great Britain to require reconsignment to the Netherlands Oversea Trust. In reply, the British Govern­ment stated that the ship had been allowed to proceed, as all the consignees had agreed to accept their goods through the Netherlands Oversea Trust; that while the British Gov­ernment did not "require" it, consignments to the Nether­lands Oversea Trust were accepted as evidence of bona fide destination, and materially expedited. The United States set forth its final position in a note of May 6, 1915, stating that while the United States had no objection to voluntary shipments to the Netherlands Oversea Trust, it maintained that other cargoes still had the same legal status; that there was no justification for the detention of non-contraband cargoes, and that the onus probandi was on the shoulders of the British Government to prove the contraband character of such consignments. This ended the case.176 On March 20, 1915, the American steamer Joseph W. m EW No. 2, pp. 121-2. (20.III-16.V.15) . m /bid., p. 117. (9.IV-6.V.15). University of Texas Bulletin Fordney sailed from New York for Malmo, Sweden, with a cargo entirely composed of cattle fodder consigned to one E. Klingener. The bill of lading was certified by the Brit­ish Consul General at New York and by the Swedish Con­sul, who asserted that the exportation of this kind of cargo from Sweden was prohibited. The vessel was loaded un­der the supervision of British consular officers, who sealed her hatches. On April 6, 1915, when about ten miles from the Norwegian coast she was sighted by H.M.S. Teutonic, which pursued her. The vessel thereupon endeavored to escape into Norwegian territorial waters to avoid inter­ception. Being overtaken, she was brought to Kirkwall, April 8, 1915, while inquiry was made as to the identity of. Klingener, who was found to be the agent of a Hamburg firm. On this account, the vessel was put into the Prize Court and compelled· to discharge her cargo before being released.177 On April 14, 1915, Mr. Bryan sent a note to the British Government requesting the immediate release of the ves­sel if evidence had not revealed her to be carrying contra­band. After considerable correspondence, the views of the Procurator General were set forth in a note from Sir Ed­ward Grey on October 6, 1915, stating that it was originally proposed to deal with the cargo under the Order in Coun­cil of March 11, 1915, as in the case of the Wilhelmina, be­cause the evidence showed that the cargo was intended .for Germany, but as the British Government later had reason to believe that they were for the enemy Government or its armed forces, proceedings for condemnation were taken on that ground. This led to remonstrances from the State Department on the ground that it appeared that approxi­mately one-half a year after the goods were seized the Brit­ish authorities obtained possession of such evidence as alone would have justified the seizure. If due examination of the vessel at the time of its seizure did not disclose evidence warranting the seizure of the goods, of course the cargo mEW No. 3, p. 119. (20.V.15). Controversy over Neutral Rights could not be lawfully seized, and therefore subsequent pro­ceedings in the Prize Court could not be lawful. To this the Foreign Office ~eply was categorically in the negative, on November 27, 1915. . Another half-year went by and Mr. Lansing addressed a note to the British Government stating that the United States considered itself entitled to knowledge concerning the principles on which the British Government had acted in the case of the Fordney and similar American shipping cases. Due to the retroactive effect of Orders in Council, in the opinion of the United States a plain denial of justice was being caused at least in the case of the Fordney. The previous stand of the Department in this matter was re­iterated, but failed to evoke a satisfactory reply from the British Government. On May 9, 1916, the Foreign Office informed Mr. Page that the British Government must de­cline to enter into any discussion of points which were awaiting decision in a case pending in a Prize Court. Claim­ants could, however, submit to the Prize Court any evidence that they regarded as bearing on the subject, in an endeavor to secure redress.118 This closed the case of the Fordney as a test case concerning the binding effect of British Prize Court regula'tions. Concerning the subsequent develop­ments in the general controversy between the United States and Great Britain, it will be necessary to turn back to the approximate time when all these cases started. The devel­opments in view of the Order in Council of March 11, 1915, will be dealt with under blockade; the remainder may be taken up in their chronological order. The first statement of this kind may be found in a mem­orandum of the Foreign Office on May 20, 1915, dealing with detained ships and cargoes, and particularly with car­goes of cotton.1' 9 This statement, while dealing principally with the ques­tion of blockade, held that 11BEW No. 3, pp. 127-8. (9.V.16). 179/bid., pp. 119-122. (20.V.15). as regards American cargoes or portions of cargoes which have been placed in the Prize Court, His Majesty's Govern­ment only resort to this measure in cases where either the goods concerned are contraband, or there is evidence that, although ostensibly consigned to a person in a neutral coun­try, they are in reality destined for the enemy in contraven­tion of the rules of blockade. The right to submit such cases to the public investigation of a judicial tribunal is one which His Majesty's Government cannot forego, and they feel convinced that enlightened opinion in the United States of America cannot adversely criticize their course of action in this respect. This was, however, the peculiar point in question, and one concerning which the United States was then about to make very vigorous protest. The resignation of Mr. Lansing as Secretary of State, in 1920, brought to light from extraneous sources reliable testimony as to the policy of the United States as assumed by Mr. Lansing on his induction into office as Secretary of' State following Mr. Bryan's resignation: Mr. Lansing felt that this country should not only be neutral in thought, but that it should be just as much in earnest in calling England to account for her violations of international law during the war as in scoring the Germa11s for their sins. For instance, there was a note prepared be­fore Mr. Bryan resigned, to be sent to Great Britain as soon as the first Lusitania note had gone to Germany, taking is­sue with England for various infractions of the laws o~ war, particularly as they affected neutrals. Mr. Cone Johnson, then solicitor of the State Department, was responsible for the statement that there was not a single canon of interna­tional law that England had not violated up to that hour; and it was beyond doubt true that England at that time had not only thrown all possible difficulties in the way of our dealing with Germany, but was holding up our ships destineJ for neutral ports. For instance, on May 20, 1915, there were twenty-four cotton ships all bound for Scandinavian and Dutch ports, held up in England in deliberate violation of British pledges that all cotton for which contracts of sale or freight engagements had been made before March 2, 1915, would be allowed free transit provided that the ships sailed not later than March 31. Mr. Lansing was one of those who thought that just as stiff a note should be sent to Eng­ 113 land about these matters as had been sent to Germany about the Lusitania, and when the President reached New York on May 18, 1915, on the Mayflower, to review the fleet, such a note was placed in his hands by a special messenger from the State Department. With the drafting of that note Robert Lansing had a good deal to do. Unfortunately for the country, that note was not sent to England until nearly five months later, (October 21, 1915) ,180 during which time its effect was weakened for several reasons. In the first place, it came too late to have that effect on Germany which it was hoped it would have-­namely, of relieving the German suspicion that America was playing the Allies' game. In the second place, it was very much toned down in its language and was not nearly so sharp an indictment of Great Britain as its projectors had intended. In the third place, much water had flowed under the bridge in the interim. But at least at that time Mr. Lansing was for dealing out an even-handed justice, was for vigorously upholding the rights of the American flag upon the high seas in accordance with American traditions, and was determined to stand by the tenets of international law which had been so hardly won by decades and centuries of slow juristic development.181 The next communication also came from Great Britain on June 22, 1915,182 not as an answer to the arguments of the United States, but merely as an explanation of a few concrete cases. The note reiterated the previous assurances of the British Government, particularly in regard to the treatment of cotton cargpes, which were to be allowed free, or bought at contract price if stopped, if contract and freight arrangements had been made before March 2, pro­vided the ships sailed by March 31, or if insured on March 2 and loaded before March 16. All such shipments were to be declared before sailing, and documents were to be produced to, and certificates obtained from, consular of­ficers or other authority fixed by the Government. In try­ing to avoid unnecessary damage to the interests of neutrals in regard to the export of goods of German origin, special 1s0Ew No. s, pp. 25-50. (21.X.15). 1s1110 Nation, 258-259. (28.II.20). 182EW No. 2, pp. 173-5. (22.VI.15). concessions had been made to American shippers, such as the arrangement for presentation of proof of payment at the British Embassy by American importers of German goods through neutral ports. The British Government fur­ther agreed to recognize the neutral ownership of goods of enemy origin even if not paid for on the date of the in­stitution of the blockade, provided they were the subject of an f.o.b. contract of ~arlier date and had arrived at a neu­tral port within the time limit set for departures of vessels from blockade·d ports. The fact that no time limit had been · set in the Orders in Council proclaiming the existence of a blockade was no barrier to such limits on commerce being set, and special arrangements to settle cases outside the Prize Court had been made, as far as investigations were concerned, particularly in the case of meat shipments. However, in future, with these few exceptions, all cases would have to go to the Prize Court, as the British Govern­ment could not continue to deal through the diplomatic channel with individual cases. On July 14, 1915, Mr. Lansing sent a note to the British Government stating that in so far as the interests of Amer­ican citizens were concerned, the United States would in­sist upon their rights under the principles and rules of in­ternational law as theretofore established governing neu­tral trade in time of war, without limitation or impairment by Orders in Council or other municipal legislation by the British Government, and would 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.183 The seizure of the American steamship Neches, carry­ing a general cargo from Rotterdam to the United States, ' by the British Government provoked a fresh note under date of July 15, 1915, from the United States, which re­garded the seizure of the vessel, with American-owned goods passing from the neutral port of Rotterdam to a neu­ t B3EW No. 2, p. 177. (14.VIl.15). Controversy over Neutral Rights tral port of the United States, merely because the goods originally came from territory in the possession of an en­emy of Great Britain, as "internationally invalid" under the Orders in Council of March 11, 1915. Although this was the first instance of a case where both enemy owner­ship and blockade were involved, it raised the protest on the part of the United States that it violated the rights of citizens of one neutral to trade with those of another, as well as with those of belligerents except in contraband; the rights of American owners of goods to bring them out of Holland was firmly insisted on, hence the British Gov­~rnment was requested to release the goods taken from the Neches. The British Embassy, in a note verbale of August 6, 1915, repfied that the British Government admitted no illegality of procedure, inasmuch as the British Govern­ment could not presume the invalidity of its own legisla­tion, nor admit the limitation by neutrals of its belligerent right of visit and search, capture and condemnation. Con­traband, no less than blockade, was subject to the doctrine of continuous voyage, and the principles upheld by the United States could not be recognized.184 The two notes of March 30, 1915, and July 14, 1915, served to call forth from the British Government two notes in response, under the dates of July 23, and July 31, 1915, respectively. The first dealt almost exclusively with block­ade, and the other with the contentions of the United States as to the validity of Orders in Council. American practice had held185 that Prize Courts are subject to the instructions of their own sovereign, and in general the principles of American and British prize practice were identical. The note went on to quote the case of the Fox, in which Lord Stowell had declared that a Prize Court would not enter­tain a priori the question of a conflict between Acts of Par­liament or Orders in Council and the principles of the law of nations ... because it could not without extreme in­decency presume that any such emergency would happen. JS4ETl' So. Z, pp. 117-8 (15.VII.15), p. 181 (31.VII.15). iooThe Amy Warwick, 2 Sprague, 123. University of Texas Bulletin Quoting from the opinion of the Zamora, which we have already mentioned, and which condemned this judgment of Lord Stowell in claiming legislative rights for the King in Council over Prize Courts as an erroneous dictum quite ir­reconcilable with the general doctrines otherwise enunci­ated by that learned judge, the note had the temerity to claim that Sir Samuel Evans had in an obiter dictum in the case of the Zamora approved the case of the Fox by saying that nations of the world need not be apprehensive that Orders in Council would emanate from the British Government in such violation of the acknowledged laws of nations that the Prize Courts would feel called upon to dis­regard and refuse ·obedience to the provisions of such or­ders. So long as the legality of the measures in question had not been passed upon by the Prize Courts of Great Britain, the note continued, there was no recourse for American citizens save to submit to the arbitrament of the Prize Court, as the presumption was that the Orders in Council were legal until declared otherwise. The final stand taken by Great Britain in the matter was that if American citizens were denied justice in the Prize Courts and such decisions were upheld on appeal to the Judicial Committee of the Privy Council, and the United States still considered that there was serious ground for holding that the decisions were incorrect and infringed American rights, the matter could be subjected to review by an international tribunal. For this there was precedent in the seventh article of the Jay Treaty of 1794, the Treaty of Washington of 1871, and The Hague Convention of 1907 proposing the establishment of an International Prize Court. Under such circumstances, the British Government would be prepared to concert with the United States Gov­ernment upon the best way of applying the principle of arbitration to the questions at issue between the two gov­ ernments.186 On October 12, 1915, the British Embassy submitted a 186EW No. 2, pp. 181-2. (31.VIl.15). Controversy over Neutral Rights memorandum concerning the grounds of Prize Court decis­ions in the cases of four ships, the Kim, the Alfred Nobel, tl~e BjOrnsternje Bjornson, and the Fridland,181 laden with meat cargoes consigned by Chicago packers to Copenhagen and other Scandinavian ports. The cargoes had been seized before the blockade was instituted, on the ground of being conditional contraband destined for the use of enemy armies. The application of the doctrine of continuous voyage to these shipments was one which the United States, from its own practice, had sanctioned. Moreover, due to the fact that neutrals did not try to supply the enemy open­ly but by means of shipments to neutral ports, the British Government was enabled to apply the doctrine of continu­ous voyage, where~s. if the shipments had been made di­rectly, it would have been for the British Government to establish that the consignees were actually supplying the German Government. Evidence of the subterfuges of pur­veyors to the enemy was seen in the fact that Dutch firms who guaranteed against reexportation would not accept such consignments. Other evidences of collusion presented showed that the British Government was perfectly justified in the seizures under the ordinary terms of international law.188 It was on October 21, 1915, however, that the classic note of the whole series, long-prepared and held back by supe­rior orders, was finally sent to Great Britain, covering all the contentions i_n previous notes and the replies to them. With regrets that the interferences with American ships and cargoes had become increasingly vexatious, the United States submitted its case under the following specific com­plaints: (1) Detentions of American vessels pursuant to the various Or­ders in Council had not been uniformly based on proofs obtained at the time of seizure, but were incident to a search made for evidence of the contraband character of their cargoes, or of their intent to evade the blockade. Such evidence was sought to support bare sus­picion of enemy origin or destination. 1879 AJIL, 975-1005, Oct. 1915. issEw No. .'J, pp. 22-25. (12.X.15). University of Texas B'Ulletin (2) Search of vessels and their cargoes in port, instead of on the high seas, as sanctioned by long practice, was unwarranted by the British contention that "modern conditions" made such search dif­ ficult, as naval experts consulted by the United States were of opin­ion that the facilities for boarding and inspection of modern ships are in fact greater than in former times, and no difference except in time can be seen between the search of a ship of a thousand tons and one of twenty thousand tons, for the purpose of establishing fully the character of her cargo and the nature of her service and destination. (3) Under revised British prize procedure, no "first hearing" was allowed; extrinsic evidence was at once admitted, enabling the de­tention of cargoes on suspicion, and causing unconscionable risk, loss and delay; the burden of proof of noncontraband character of goods was placed upon the claimant; the captor was allowed to es­tablfsh enemy destination by all the evidence at his disposal, in­cluding mere presumption of reexportation, thus enabling belliger­ents to ignore entirely neutral rights on the high seas and prey with impunity upon neutral commerce. ( 4) Increased British exports to neutral countries from which similar American products were kept out created a condition of such manifest injustice to American trade that the United States could not be expected to permit the rights of its citizens to be so seriously impaired to the profit and commercial advantage of Great Britain. ( 5) The detention of goods clearly intended to become incorpo­rated in the mass of merchandise for sale in neutral countries, on the presumption of ultimate enemy destination, was an unwarranted and inquisitorial preceeding, an illegal and unjustifiable attempt of belligerents to interfere with the rights of neutrals to trade With one another. Even if conditional contraband were destined to an enemy country through a neutral country, that fact was not in itself sufficient to justify seizure. For these reasons, it was anticipated that Great Britain would instruct its officers to refrain from such vexatious practices. (6) American citizens were denied other means of redress than through the Prize Courts, subject to ultimate arbitration of the de­cisions involved. Such Prize Courts, being bound by the faws and regulations under which the seizures and detentions were made and which were held by the claimants to be in violation of the laws of nations, were therefore powerless to pass upon the real ground of complaint or to give redress for wrongs of that nature, whereas American courts were not and had never been bound by such restric­tions. Furthermore, Great Britain, alike in the Civil and Boer wars, 119 Controversy over Neutral Rights had obtained or granted redress through diplomatic channels exclu­sively. (7) The general menace of interference with trade, the unwar­ranted delays imposed, the imminent fear of illegal seizure by Allied authorities operated, together with the illegal measures for bring­ing ships under British territorial jurisdiction, to deter American merchants from trading with neutral countries, or to resort to Brit­ish Prize Courts for redress, as release in these instances could be obtained only upon condition that costs and expenses such as pilotage, wharfage, demurrage, harbor dues, warehousage, unloading costs incurred in the course of such unwarranted procedure be paid by the claimants on condition, also, that they sign a waiver of right to bring subsequent claims against the British Government for these exactions. The United States denied that the charges incident to such deten­tions could be rightfully imposed upon innocent trade, or that any waiver of indemnity exacted from American citizens under such conditions of duress could preclude them from obtaining redress through diplomatic channels or any other means open to them. In conclusion, the United States held that, while reserving the question of the discussion of the extension of contraband lists ti}l a later day, it submitted as proven that the methods employed by Great Britain in obtaining and using evidence of enemy destination of car­goes bound to neutral ports to impose a contraband character upon them were without justification; that the judicial procedure for re­dress for an international injury was inherently defective, and vio­lative of international law; that the United States could not with complacence suffer further subordination of its rights and interests to such oppressive and illegal practices; that our relations towards Great Britain must be governed not by expediency but by regularly established rules of international conduct, unhampered and unim­paired by belligerent action, so as to safeguard impartially the in­terests of neutrals, of whom the United States considered herself the champion.189 In substantiation of the charges laid down in the note, an appendix was submitted dealing with the specific cases of vessels whose detention for prolonged periods without the institution of Prize Court proceedings was unwarranted, in view of the fact that their papers were of such charac­ter as to require but a brief time for examination; of other vessels held until they reconsigned their cargoes to con­signees in neutral countries designated by the British Gov­ernment; of vessels detained without evidence amounting 189/bid., p. 38. University of Texas Bulletin to probable cause, or because of the manner in which ship­ments had been consigned. Similar instances were fur­nished of the seizure by the British Government of goods on the ground that the country to which they were con­signed had not prohibited their export, or in spite of such guarantees even though the goods themselves might be either conditional contraband or not contraband at all. Cases of detention pending assurances that embargoed goods would be allowed to pass through a neutral country to Allied countries and of seizure on the ground that con­signees had been known to trade with the enemy or were suspected of so doing, were cited; likewise the instances where vessels proceeding from European neutral ports were detained or seized and brought into port and compelled to pay pilotage, harbor, unloading, warehouse, storage or other dues, costs and expenses in advance of a judicial de­termination of the validity of the seizure of the vessel or its cargo.190 This closed what may be regarded the most thorough­going and masterly effort of the United States to vindicate its neutral rights. From the British Government no re­sponse was received until April 24, 1916, when a reply em­bodying the views of the French and British Governments was received. Meanwhile Great Britain, by two Orders in Council of November 10, 1915,191 had rendered liable to re­quisition for the carriage of foodstuffs and other articles of commerce any British ship registered in the United King­dom upon the serving of such notice upon the owner of the ship by authority of the Board of Trade, and had prohib­ited, after December 1, 1915, the carrying of cargo from one forei_gn port to another by any British steamship reg­istered in the United Kingdom exceeding 500 tons gross tonnage unless specifically exempted by licenses to be issued by the authority of the Board of Trade. On January 19, 1916, the Department of State was of- 190/bid., pp. 40-50. mi/bid., pp. 51-53. (10.XI.15). Controversy over Neutral Rights 121 ficially apprised by Mr. Page of the terms of the "Trading with the Enemy (Extension of Powers) Act" of December, 1915, familiarly known as the act establishing the "Black­list" of American and other neutral firms. In brief, the act provided for the extension of the restrictions relating to trading with the enemy to persons to whom it was expedi­ent to extend such restrictions by reason of their enemy nationality or associations, whether resident and carrying on business in enemy territory or not. By proclamation, all persons or bodies of persons, incorporated or unincor­porated, resident, carrying on business, or being in the United Kingdom, might be prohibited from trading with any persons or bodies of persons not resident or carrying on business in enemy territory or enemy-occupied territory (other than persons or bodies of persons incorporated or unincorporated, residing or carrying on business solely within British dominions) wherever it seemed expedient to the crown, by reason of the enemy nationality or associa­tion of such persons. Any list of such persons with whom such trading was prohibited by a proclamation might be varied or added to by Orders in Council, and all the provis­ions of trading-with-the-enemy acts should also apply to such persons. Within the scope of the act were embraced all persons trading with a person or body of persons to whom such royal proclamations might be applied, if they entered into any transaction or did any act with, to, on be­half of, or for the benefit of such a person or body of per­sons which if entered into or done with, to, on behalf of, or for the benefit of an enemy, would be trading with the enemy.192 Such an announcement, as might readily be expected, drew fire from the United States, and Mr. Lansing, in a note of January 25, 1916, held that the act was pregnant with possibilities of undue interference with American trade, if such was not already being practiced. The United States Government believed that the act was framed with­ out a proper regard for the right of persons domiciled in rnzEW No. 3, pp. 54-55. (19.1.16) . University of Texas Bulletin the United States, whether Americans or enemy subjects, to trade with persons in belligerent countries, and held grave apprehensions as to its application, reserving the right to protest against its application in so far as it af­fected American trade, and to contest the legality or right­fulness of imposing restrictions on the freedom of Ameri­can trade in such fashion.193 To this the British Foreign Office replied under date of February 16, 1916, stating that the act was an endeavor to bring British practice more in keeping with that of France, by applying in some degree the test .of nationality in the determination of enemy character in addition to the old test of domicile, which experience had shown insufficient to de­prive the enemy of all direct or indirect assistance from national resources. Care had been taken in framing the act, it was alleged, to avoid any definition which would im­pose enemy status upon all persons of enemy nationality and associations, but also to take powers of discrimination to withhold British resources from such persons. While abstaining from a strict interpretation of their belligerent rights, the British Government had acted by domestic legis­lation to restrict the activities of British subjects from a standpoint of national necessity. Without denying the right of all persons of any nationality resident in the United States to engage in trade legitimately, they could not admit thereby any limitation of the right of other governments to restrict in any appropriate manner the activities of their own nationals, which was a sovereign right inherent in na­tional independence, from the exercise of which, under these self-imposed limitations, the United States should have little to fear.194 No reply was made to the British Government in regard to the Trading with the Enemy Act until July 26, 1916, by which time, it will be remembered, the Allied Governments had absolutely discarded their endeavor to pursue, even to mEW No. s, p. 55. (25.1.16). 194Jbid., pp. 56-57. (16.Il.16) . Controversy over Neutral Rights a limited extent, the lines of policy laid down in the Decla­ration of London. On that date Mr. Polk addressed a formal note to the British Government, manifesting the surprise of the United States at the "blacklisting" of cer­tain persons, firms, and corporations in the United States and the interdiction of all financial or commercial dealings between them and British subjects, and expressing the pro­test of the United States in the most decided terms against such a "policy of arbitrary interference with neutral trade." The extraordinary effect of the policy, and its wide scope operated to deter British steamship companies from ac­cepting cargoes from such firms for transport to neutral ports, and neutral steamship lines were denied coal in Brit­ish ports if accepting them, besides suffering other penal­ties; so neutral bankers refused loans to these firms, and neutral merchants would not contract from these firms, fearing a like proscription; Americans in foreign countries had been notified that their dealings with blacklisted American firms were to be regarded as subject to the veto of the British Government, so that Americans would thus be prevented from dealing with purely American firms. The limitless dangers to importers thus blacklisted for "enemy association" were "inevitably and essentially in­consistent with the rights of the citizens of all the nations not involved in war"; the United States could not 'consent to see the remedies and penalties for breaches of blockade, carriage of contraband or unneutral service altered or ex­tended at the will of a single power or powers in deroga­tion of American rights; the safeguards of prize courts against condemnation without fair adjudication were swept away by the blacklist which condemned without hearing, without notice and in advance. It was rpanifestly out of the question that the United States should acquiesce in methods or applications of punishment to its citizens. Apart from the question of the legality of the blacklist, the United States was constrained to regard it as inconsistent with true justice and impartiality in friendly international in­tercourse, and could not consent to see its citiz~ns put on University of Texas Bulletin an ex parte blacklist without protesting in the gravest terms against the serious consequences involved concerning neu­tral rights.195 Congress, apparently not content with the results of _diplomatic protests, took occasion to provide, in the sections of the Revenue Act of 1916 dealing with "Unfair Competition" due legal authority where­by measures of a more stringent character might be employed. These provisions authorized and empowered the President whenever, dur­ing the existence of a war in which the United States was not en­gaged, he should be satisfied that there was reasonable ground to believe that under the laws, regulations or practices of any country, colony or dependency contrary to the law and practice of nations, the importation into their own or any other country, dependency or col­ony of any article . . . was prevented or restricted, to prohibit or restrict, during the period such prohibition or restriction was in force, the importation into the United States of similar or other ar­ticles, products of such country, dependency, or colony, as in his opinion the public interest might require, stating by proclamation the article or articles which were prohibited from importation into the United States. He was also authorized to change, modify, re­voke, or renew such a proclamation in his discretion. By a subsequent section, whenever, during the existence of a war in which the United States was not engaged, the President should be satisfied that there was reasonable ground to believe that any vessel, American or foreign, was, on account of the laws, regulations, or practices of a belligerent government, making or giving any un­due or unreasonable preference or advantage in any respect what­soever to any particular person, company, firm or corporation, or any particular description of traffic in the United States or its pos­sessions or to any citizens of the United States residing in neutral countries abroad, or was subjecting any particular person, company, firm, or corporation or any particular description of traffic in the United States or its possessions, or any citizens of the United States residing in neutral countries abroad to any undue or unreasonable prejudice, disadvantage, injury, or discrimination in regard to ac­cepting, receiving, transporting, or delivering or refusing to accept, receive, transfer, or deliver any cargo, freight or passengers, or in any other respect ;whatsoever, he was authorized and empowered to direct ~he detention of such vessels by withholding clearance or by formal notice forbidding departure, and to revoke, modify or renew any such direction. Similarly it was provided that whenever there was reasonable ground to believe that under the laws, regulations or practices of 195EW No. 4, pp. 85-87. (26.VIl.16). 125 Controversy over Neutral Rights any belligerent country or government, American ships or American citizens were not accorded any of the facilities of commerce which the vessels or citizens of that belligerent country enjoy in the United States or its possessions, or are not accorded by such belligerent equal privileges or facilities of trade with vessels or citizens of any nationality other than that of such belligerent, the President was authorized and empowered to withhold clearance from one or more vessels of such belligerent country until such belligerent should re­store to such American vessels and American citizens reciprocai liberty of commerce and equal privileges of trade; or the President might direct that similar privileges and facilities, if any, enjoyed by ·citizens of such belligerents in the United States or its posses­sions be refused to vessels or citizens or such belligerent; and in such case he should make proclamation of his direction, stating the fa­cilities and privileges which should be refused, and the belligerent to whose vessels or citizens they were to be refused, and thereafter the furnishing of such prohibited privileges and facilities to any vessel or citizen of the belligerent named in the proclamation should be unlawfu[ He might change, modify or revoke or renew such proclamations at his discretion. In case any vessel detained by virtue of this Act should depart or attempt to depart from the jurisdiction of the United States with­ out clearance or other lawful authority, the owner or master or per­ son or persons having charge or command of such vessel should be severally liable to a fine of not less than $2,000 nor more than $10,000 or to imprisonment not to exceed two years, or both, and in addition such vessel should be forfeited to the United States. Lastly, the President of the United States was authorized and em­ powered to employ such part of the land and naval forces of the United States as should be necessary to carry out the purposes of the Act.196 The reply of Great Britain to this note concerning the "blacklist" was given to Ambassador Page on October 10, 1916, in a note in which Lord Grey stated that the Trading with the Enemy Act was to be regarded as purely munici­pal legislation, not purporting nor claiming to impose dis­abilities upon neutral commerce or individuals, but enjoin­ing British subjects to cease relations with the enemy, di­rectly or indirectly. The only disability imposed upon such neutral firms as had traded with the enemy was the dis­ability suffered through the prohibition of trade with them 19G39 Statutes at Large, Part I, 799-800. University of Texas Bulletin by British subjects. Itwas not Great Britain's desire to ham­per neutral trade, particularly with America, with whom she desired the closest commercial relations; such steps were not being taken to further British trade by cutting off the trade of British subjects-manifestly this was im­possible. It had, previous to the war, been Anglo-Ameri­can practice to treat domicil as the test of enemy character, in contradistinction with the continental practice which regarded nationality as the test . . . In the face of enemy activities it was essential for Great Britain to take steps to deprive such hostile interests in neutral countries from the benefits of trade with British subjects. Such was Great Britain's belligerent right, as was also the right to refuse bunker coal to those trading with the enemy. While not unmindful of the trust which the possession of sea power gave her, Great Britain could not refrain from imposing certain restrictions on the unlimited use of her coal sup­ply when the interests of the Empire were at stake. This ended the correspondence as to the blacklist.197 Between the sending of the main note of, October 21, 1915, and the reply to it in April, 1916, the British Foreign Office adhered strictly to its policy of not heeding the diplo­matic protests of the United States, but of referring all claimants to the Procurator General, where the·ships would be released on the production of satisfactory proof, or else would be held until the sitting of the Prize Court to be judged. Small shippers complaining to the Embassy in London could thus obtain no redress, so Mr. Page, in a dis­patch to Mr. Lansing, dated February 19, 1916, suggested that in view of the fact that the Consul General in London was in the practice of communicating directly with the Procurator General's office in regard to all claims of Ameri­can citizens, he would suggest the State Department to ad­vise such shippers to communicate with the Consul Gen­eral directly, unless the Department made diplomatic rep­resentations. He himself would in future, when denied 191fbid., pp. 87-92. (10.X.16). action by the Foreign Office, put the claimant in touch with the Consul General, advising him of the requisite docu­ments for pushing his claims, viz. : the originals of bills of lading, invoices, previous correspondence with firms in the country to which goods were shipped, contracts, insurance policies and affidavits setting forth the facts in the case. Such, in .Mr. Page's opinion, was the speediest way of set­tling cases which the British Government would not release from the Prize Court on diplomatic representations, or be­cause such were not in order.198 On March 16, 1916, Mr. Polk notified Mr. Page that the Department had adopted a policy of notifying firms to take such action as the Embassy in London had recommended as the most expedient way of presenting American claims, while explicitly stating that such notice by the Department of State, or such action by the Consul General in London in attempting to secure the release of American cargoes by the British authorities was not to be construed as an admission on the part of the United States of the legality of the action taken by the British overnment under Orders in Council. While the Department could not undertake to assist private persons in the conduct of proceedings before British Prize Courts, the American Consul General at Lon­don would be glad to furnish the claimants with the names of reputable attorneys, for whose actions, however, the De­partment and the Consul General were not to be held re­sponsible.199 Too much stress cannot be laid on this particular step taken by the Department of State, inasmuch as it conceded the practical efficacy of the British contentions as to the use of Prize Courts as the sole means of redress. How­ever much the United States might protest diplomatically against the theoretical legality of the measures instituted by the British Government, it was forced to admit to its own tradesmen that the case of the United States as regards m EW No. 3, pp. 57-58. (19.II.16). 199E W No. 3, pp. 60-61. (16.III.16). Great Britain was in effect futile, if not irretrievably lost. Whether it was the result of the five months of "watchful waiting" during the summer of 1915, when a more direct and spirited protest might have achieved some decisive end, or not, it is a matter that must seem in the colder reasoning of the morrow of the war to have been a surrender to the stern law of the sea as administered by Great Britain and the French Government. Possibly this intransigent atti­tude on the part of Great Britain was due to the more vigorous policy adopted by a war-time coalition Govern­ment, against which the United States nit not wish to hurl itself in impotence. Suffice it to say, that for all prac­tical purposes, the middle of March, 1916-the very period when the Congressional battle over armed liners was set­tled against German claims to the dictatorship on the seas through her submarines-marks the end of British conces­sions t<'> the United States, or of effective American resist­ance to British claims. Thereafter the battle became worthy and full of propaganda material, for once that the United States had pronounced her attitude towards armed liners, and towards submarine warfare as exemplified in the case of the Sussex, it was but a question of time until the United States should decide to enter the conflict herself. From this time on the mention of the "freedom of the seas"200 became a topic on which Mr. Wilson might discourse volubly, but whatever meaning he might attach to those projects for a "radical reconsideration of many of the rules of interna­tional practice hitherto thought to be established" as re­gards maritime power, was forestalled by the active pos­session and tenacious grip of Great Britain upon the lines of commerce on the sea. For only one brief instant did the hope of effiicient action to guard maritime rights recur, and that was on the very eve of America's entrance into the Great War, when, under the guise of armed neutrality, pos­sible means of restriction of the unlimited belligerent rights of the Allied Governments at sea might have been thought 200EW No. 4, pp. 381-386. (22.1.17). Address to the Senate of the United States. Controversy over Neutral Rights within the bounds of practical attainment. But in the twinkling of an eye the opportunity for the assertion of American neutral rights in a truly impartial, militant form had passed, and a similar moment is hardly likely ever to recur. The reply of the British Government to the American note of October 21, 1915, was delivered by Sir Cecil Spring­Rice on April 24, 1916, reviewing the statements of the United States and making reply to the charges of the United States point by point. In the view of the British Government, the complaints of the United States with re­gard to intercepted commercial shipments were made against the means chosen for such interception rather than due to any belief that the goods so treated had a bona fide neutral destination. The British Government, therefore, held that new devices for despatching goods to the enemy must be met by new methods of applying the fundamental and acknowledged principle of the right to intercept trade of that sort. As regards search at sea instead of in port, the note held that the recurring attempts to conceal contraband intended for the enemy in innocent packages necessitated the exami­nation of the ship and cargo in port. The problem of searching a ship at sea in troubled weather was demon­strably impracticable, as proved by the experience of the Allied fleets during the war. While hardships might be caused to neutral vessels in taking them out of their course into port for search, it would be impossible under the ex­isting conditions to confine the rights of visit and search to an examination of vessels where encountered without surrendering a fundamental belligerent right. The opinion of Admiral Jellicoe that such searches were impossible due to the size of the vessels, the danger from submarines and the presence of enemy agents using forged American pass­ports, was submitted as technical evidence, tending to es­tablish the necessity of search in port. Likewise the French naval authorities held that a ship "in order to be searched, should be brought to port whenever the state of the sea, University of Texas Bulletin the nature, weight, volume, and stowage of the suspect cargo as well as obscurity or lack of precision of the ship's papers, render search at sea practically impossible or dan­gerous for the ship searched" though when contrary cir­cumstances existed the ship should be searched at sea. Bringing the ship into port was also necessary and justi­fied when the recurrence of such searches in hostile wa­ters201 until the innocence of a vessel were clearly proven would subject her to unwarranted dangers. The question of locality of search, ·the Allied Govern­ments held, was of secondary importance. In view of the fundamental and incontestable belligerent right to · inter­cept contraband, restrictions due to insufficient proof to condemn the cargo should not be allowed to limit this right. The Allied Governments were therefore compelled to take the most effectual steps to exercise that right. Regarding Prize Court procedure, British jurists had prepared the revised prize procedure adopted by Great Britain at the beginning of the war, so as to avoid a first and second hearing, and permit the concurrent examina­tion and condemnation of cargoes without awaiting further proof. Prize procedure was regulated by municipal and not international law. The previous traditions of Great Britain were no basis for keeping Great Britain from con­forming with French or continental prize practice, or in­troducing such changes as modern Circumstances required. Prize Courts were only bound to give a fair hearing to the claimants presenting their case. Thus, first and second hearings being merely forms of procedure, the Allied Gov­ernments were not bound to maintain them when they had become obsolete, and changes would expedite cases, elimi­nate technicalities and fully enable the parties to prove their cases with all true and material facts before the court. Modern means of communication had made subterfuge and deception so easy that belligerent governments would not readily forego the use of all the means at their disposal 201Literally, "dans la zone ou le voisinage des hostilites." Controversy over Neutral Rights to secure the condemnation of a cargo with ultimate enemy destination. Mere evidence that goods were ostensibly de­signed to become a part of the common stock of neutral countries could not be regarded as sufficient to prove their innocence, or hinder further inquiry as to their ultimate destination. The Allied Governments could not believe that the United States countenanced the existence of such illicit traffic through neutral ports, as actually . existed. In the presence of overwhelming evidence that consign­ments of goods to neutral ports had been made to people who could under no possible circumstances have use for the products imported, the British Government submitted that no belligerent could in modern times be bound by the rule that no goods could be seized unless they were accom­panied by papers establishing their enemy destination, and that all detentions of ships and goods must uniformly be based upon proofs obtained at the time of seizure. To press such a theory, it was held, was tantamount to asking that all trade between neutral ports should be free, and would render nugatory the exercise of sea-power and destroy the pressure which the command of the sea enabled the Allies to impose upon Germany. The United States could not be expected to "urge the technical theory that there should be no interference at all with goods passing between neutral ports," thus frustrating the Allied measures for the inter­ception of commerce, because of its previous stand taken during the Civil War.... It was essential to the Allied Powers to see that the measures so taken were not rendered illusory by the use of adjacent neutral ports. Every effort was being made to distinguish bona. fide from suspicious commercial transactions, even though neutrals should be dissatisfied with the action of the Allies in determining to allow no more than the normal inflow of goods to neutral countries, as shown by previous experience to be actually needed. The mere fact of adjacency to neutral countries constituted in itself an element of proof of ulterior destina­tion which no Prize Court could afford to ignore. As to the means of redress open to American citizens for University of Texas Bulletin any injury or loss suffered as a consequence of belligerent action, and the claim of the United States that neutrals could not appeal to Prize Courts bound and fettered by municipal enactments which could not be questioned by the courts themselves, Sir Edward Grey held that the Prize Courts had jurisdiction to pronounce a decision as to whether an order or instruction to the naval forces issued by the British Admiralty was inconsistent with the prin­ciples of international law, and could decline to enforce such orders, thus affording every facility for redress and com­pensation to American citizens. While municipal law gov­erned the establishment and procedure of Prize Courts, the substantive law applied therein between captor and claim­ant consisted of the rules and principles of international law, and not the municipal legislation of the country, and the British Government laid particular stress on the fact that its competence and jurisdiction, vital to the perform­ance of its duties, should not be encroached on. It only need be pointed out that the above reasoning in regard to the scope of the authority of the Prize Court is valid so long as the Prize Court exercises such rights in annulling obnoxious Orders in Council. Due, however, to the traditional practice in Anglo-American jurisprudence not to question the decision of the political authorities in the Government, it is extremely unlikely that any Court of Prize in Great Britain would have questioned the action of the British Government in establishing a blockade of Ger­man ports. As a consequence, it is altogether likely that, as actually proved the case, all such Orders in Council would be held valid-just as German Prize Courts did not for a moment question the propriety of the measures of the Imperial Government-and no redress against the noxious effect of such Orders in Council could possibly have been obtained. Concerning losses to neutrals from the exercise of rights jure belli Prize Courts had ample jurisdiction to deal with them, and they were at the disposal of all aggrieved neu­trals. Where such means of redress existed, recourse must Controversy over Neutral Rights 133 be had to such courts before there was any scope for diplo­matic action. The very cases submitted by the United States, concerning the Magicienne, Labuan, Don Jose and Saxon, bore out the British contention that where the Prize Court was empowered to grant relief, no recourse through diplomatic channels could be permitted. As to the claim of exactions of wharfage, pilotage, port dues, etc., had been charged to detained American vessels under duress, it was stated that where detained vessels had J1.0t discharged cargo, no dues had been exacted; where car­goes were discharged, the terms of the discharge were ar­ranged by the Prize Court. The British Government held that the statement that waivers of the right to put forward claims of compensation had been exacted as a condition of release was not accurate, and that such waivers would be a hardship to the owners of released goods. Under the cir­cumstances, no further exactions would be made, no.r those made be enforced. This is particularly important as being a veiled admission that the charges of the United States were substantially correct, even if "scarcely accurate." Provided that measures against enemy commerce were not impaired thereby, the British Government was willing to concert with the shippers of neutral countries as to means for reducing the probabilities of delay and risks of seizure; it was to such mitigation of the rigors of belliger­ent measures rather than to abrupt changes either in the theory or the application of policies based on admitted prin­ciples of international law carefully adjusted to modern war-time conditions that neutrals could best look for re­lief. Otherwise the principles contended for by the United States would tend to deprive the Allied Governments of their belligerent rights. In closing, the Allied Governments stated that they had nothing to fear from any combination of neutral nations under the lead of the United States which would exert an effective influence to prevent the violation of neutral rights, if impartially undertaken in the true spirit of the rules of international law and humanity. This was, as may readily University of Texas Bulletin be seen, tbe most vigorous instance of the use of propa­ganda in purely legal controversy that had as yet come up in America's correspondence with the Allied Governments. Moreover, it bears out the view that once the crisis of the MacLemore resolution had been passed, the great aim of Anglo-French diplomacy became the enlisting of the aid of the United States in the Great War. While numerous "concessions" were made, and actes .de grace allowed, substantially no concession of the belligerent rights of the Allies was admitted, no acknowledgement of the rights of neutrals avowed, nor was any endeavor for the promotion of a concert of neutral powers really favored by Great Britain. At the very moment that she and France made these broadminded suggestions, the Paris Economic Conference, with its deep-laid schemes of an economic revanche were being laid out, regardless of the wishes of neutrals or its possible effect on them. The championship of neutral rights had become but a phantom idea to be raised at will by the Allied Governments as an enticement to neutrals to concert in measures directed against the economic structure of the Central Empires, no less cogently or forcefully than the Central Empires with their dreams of world dominion and Weltzollvereins were plotting. From now on, the conquest of neutral opinion was to become in­creasingly easy, and the subjection of neutrals to the mari­time rights of the Franco-English naval alliance swift and sure. The Uniti:id States had made its last move for the maintenance of its rights and had failed. This, in substance, had been the controversy between the Allied Governments arid the United States. It remains for us to sum up briefly the criticisms made by others on the particular topics covered under the caption of contraband. As regards the questions of visit and search, in port or on the high seas, Professor Hyde holds that in resorting to a procedure regardless of precedent, Great Britain assumed the burden of showing that changed condi­tions freed it from restrictions previously acknowledged, and that its conduct was in any event but a reasonable if Controversy over Neutral Rights 135 fresh application of a fundamental belligerent right. The attempts of warships to visit and search neutral merchant­men of great tonnage and in rough waters have not been c'onfined to wars of even the present century. The British task was rendered difficult and dangerous by the submarine operations of the enemy rather than by any absence of calm seas. Such operations often made it impracticable to con­duct an extensive yet reasonably necessary search at the place where a suspected merchantman was encountered. In view of such circumstances, unlike those prevailing in any previous war, it may be admitted that searches in port were oftentimes the only effective searches by means of which the exercise of that right could become effective. The right of search is not to be deemed an unrestricted means of interfering with the carriage of contraband to the enemy. It has never been more than a concession to a bel­ligerent itself capable of exercising it on the high seas.... Doubtless latitude should be accorded a belligerent in at­tempting to check traffic in contraband, and to ascertain its existence on the high seas. The procedure, however, where­by innocent ships are forced to deviate from their courses, put into belligerent ports, and there submit to protracted searches as a means of indicating whether they or other vessels are participating in the war or are about to do so, appears to be at variance with the demands of justice. The British argument and the facts which supported it indicate why the right of search as exercised in previous wars is in­applicable to modern conditions. There is solid reason for the attempt to place within the reach of a belligerent' by some other process less injurious to innocent shipping, infor­ mation concerning the nature of neutral cargoes and the voyages of neutral vessels. It is believed that neutral gov­ernmental certification of ships' papers would offer as relia­ble assurance as to facts ascertainable by search as could be furnished by a neutral convoy. Moreover, the burden of making such certification might be fully compensated by benefits derived from the freedom from annoyances under the system now prevailing. General approval of a pro­cedure establishing reasonable neutral guarantees effected through increasing governmental control over neutral com­merce may cause the exercise of the belligerent right of visit and search to sink into a much desired desuetude.2''~ Similar arrangements, in his opinion, would tend to estab­lish, by some form of neutral governmental certification, """Hyde. Mm·itime JT"a,-, l'P· 49-51. Cf. his lrit. Law, II, 443-444. University of Texas Bulletin the inviolability of postal correspondence at sea, whereas the United States, by its stand, had essentially admitted the right of censorship in numerous cases,203 though the essence of American complaints had been that by virtue of the sheer naval force they possessed, the Allied Governments com­pelled neutral steamship lines to put into allied ports and thus subject themselves to the municipal laws of the country. As regards contraband in general, "it may be fairly con­tended that existing conditions of war place the burden squarely upon those who claim to be unmolested (i.e. upon neutrals). Neutral as well as belligerent governmental as­surance ought to be given the state called upon to forego the right of capture and confiscation. . . . It is in the na­ture and scope of assurance of innocent use that lies the hope of retaining for ' neutral st.ates the enjoyment of a trade which, as war is now waged, must otherwise be re­garded as a traffic in contraband."204 It is interesting to point out the vast possibilities inher­ent in a concert of neutrals for the safeguarding of their rights, not only by means of convoy or armed merchant­men-the externals of a system or league of modern armed neutrality-but by "the conclusion of a general arrange­ment contemplating a system of regulated trade under neu­tral governmental auspices and embracing a mode of giving requisite assurance that such articles would be employed for hostile purpose. Possibly the readiness of some states to acquiesce in such an arrangement might be accelerated in case simultaneously general agreement were made that neutral maritime powers should undertake, either to for­bid the exportation from their territories of munitions of war and ingredients in their manufacture, or to facilitate the task of a belligerent in ascertaining both the character and destination of cargoes comprising such articles."20"• 203Ibid., p. 56 and note. 204Hyde, Int. Law, II, 597. ~00Hyde, op. cit., pp. 165-169, passim. Cf. also his Int. Law, II, 601. Controi:ersy over Neutral Rights 137 While such may seem rather radical steps to take in view of the policy finally adopted by the United States on her entry into the war in acknowledging no distinctions be­tween conditional and absolute contraband, and extending her contraband lists so as to preclude the possibility of her ever making "a further communication" to the Allied Gov­ernments in regard to the question of contraband, the pos­sibilities of such a course may be said to be fruitful in pro­tecting in future the rights of neutrals by making their Governments responsible for the good faith of the shippers. Once that belligerents may find a definite locus for respon­sibility in the neutral government, the right of search is superfiuous.20c 2osFor other critical reviews of the whole subject of contraband, right of search and continuous voyage, cf. Garner, op. cit., II, 285­316, passim, and Baty, T ., "Continuous Voyage: The Present Posi­tion." 9 Transactions of the Grotius Society, 101-117. CHAPTER VII TRANSFER OF REGISTRY AND ENEMY· CHARACTER With the outbreak of the Great War there at once arose a very acute shortage of shipping in the ports of the United States. The ships of the British mercantile marine at once were taken over by the British Admiralty by vir­tue of its previous agreements with the various steamship lines, as noted in our discussion of armed merchant ships. As concerns the German liners, after the abortive effort of the Kronprinzessin Cecilie to steal her way across the At­lantic with a cargo of gold, and her final entry into the port of Bar Harbor, Maine, no effort was made by them to sail out of the various American ports into what was almost certain capture by British cruisers. As a consequence, the existence of a l¥ge unusable belligerent mercantile marine in our ports and the withdrawal from the trade routes of American commerce of the Brith:\h bottoms in which Amer­ican goods were wont to be carried led to earnest inquiries by American merchants as to the possibility of the pur­chase, in all good faith, of these various liners, for perma­nent American use. This at once raised a serious question: Would the bellig­erent governments, particularly those of Great Britain and France, raise any objection to the transfer to American registry of such ships, or question the validity or good faith of such transactions? This was a peculiarly pressing prob­lem, and the State Department, alive to the necessities of the hour, at once issued a memorandum on the transfer of merchant ships of a belligerent to a neutral after the out-­break of war, holding the American position to be that mer­chant ships of a belligerent might so be transferred if the transfer was absolute, made in good faith, without colorable or collusive action, under the municipal regulations of the country of the neutral purchaser. Such transfer could not, Controversy over Neutral Rights 139 of course, be made while the ship was in transitu, or in a blockaded port. As far as the provisions of the Declara­tion of London were concerned, there was no binding force to them, since the Declaration had remained unratified and the American ratification had not been deposited at The Hague.201 In pursuance of this policy, the Administration intro­duced into Congress, and succeeded in passing at an early date, a bill designed to facilitate the transfer to American registry of foreign-built and owned vessels, whether of belligerent or neutral powers.'08 Under the stress of the emergency, it was provided that not all the watch officers need be Americans-an arrangement which, as we have already seen in the case of the M etapan, enabled an almost entirely British crew to be kept on board an American ves­sel and to be officered almost without exception by British officers. Furthermore, survey, inspection and measurement by American officers was dispensed with. Once that this measure had been adopted, the transfer of ships from Danish, Swedish, Norwegian and Dutch lines was greatly facilitated, and the available ships were readily registered under the American flag. There remained, however, the German ships, and bids for these were now readily offered. As a result, a very few of such vessels were sold, notably the Hamburg American liner Dacia, whose case is of pecu­liar interest in view of the fact that it tested the Allied standpoint towards the validity of such transfers. Ac­cording to the evidence of purchase, the purchaser, Mr. E. N. Breitung, was not engaged in a collusive bargain with the Hamburg American line, but actually wanted the ship for his own permanent possession in the conduct of com­mercial operations/00 The Dacia was sold to Mr. Breitung in December, 1914, 2o•See statement of State Department in Appendix, infra, pp. 169­177, (7.VIII.14) . 20s 38 Statutes at Large, 698-699; Chap. 256, 63rd Congress, 3rd Ses­ sion. 209Senate Document 979, 63rd Congress, 3rd Session. 140 University of Texas Bulletin received her certificate of American registry at Port Arthur, Texas, on January 4, 1915, and was chartered to take a cargo of cotton to Bremen from Galveston, Texas. The ship loaded 11,000 bales of cotton and sailed from Gal­veston to coal at Norfolk and receive final instructions be­fore leaving for Rotterdam, in lieu of going to Bremen. On February 27, 1915, the French auxiliary cruiser Europe met the Dacia on the high seas near the entrance to the English channel, and, on examination of the ship's papers, which showed her to have been of Hamburg-American own­ership at the beginning of the war, captured the vessel, "because it could not in time of war avail itself of the right of transfer to a neutral flag." The case was brought before the French Prize Council on August 3-4, 1915, the government asking the council to declare right and lawful the capture of the Dacia and all its accessories, including the supplies and provisions of every kind without exception found on board, even those claimed as personal property by the captain, an American, except the ship's papers, and the owner asking that the vessel be immediately released on bail, and her rightful transfer 'to American registry under American law and Article 56 of the Declaration of London as put in force by the French Government by a decree of November 6, 1914, be acknowledged; that her capture be declared void, as being neutral property; that she be released and her pro­visions, etc., restored; and that compensation of 300,000 francs be given, under the provisions of Article 64 of the Declaration of London, for the injury caused by the un­justifiable c~pture of the ship, plus freight and demurrage charges. The council, being concerned solely with the validity of the capture of the ship, and not concerning the cargo, held that Article 56 of the Declaration of London, which pro­vided that the transfer of an enemy vessel to a neutral flag, effected after the outbreak of hostilities, was void unless it were proved that such transfer was not made in order to evade the consequences to which an enemy vessel, as such, Controversy over Neutral Rights was exposed, was the only law applicable to the particular case, with only the force of a national act and not of an international one. On this point the report of the Drafting Committee had settled the question of bona :fide transfer by declaring that a belligerent cruiser encountering a merchant vessel laying claim to neutral nationality must inquire whether such na­tionality had been acquired legitimately or merely to shield the vessel from the risks to which she would have been ex­posed had she retained her former nationaliLy.210 Accord­ing to the report, from the determination of the neutral or enemy character of merchant vessels followed the question of the validity of their capture and the fate of the goods they had on board. So would be determined the neutral or enemy character of the goods. It is of the utmost im­portance to bear this in mind, as the Prize Court in France held that it was not empowered to decide the fate of the goods according to the decree that embodied the provisions of the Declaration of London. As the German Prize Or­dinance of 1909 had embodied these principles,"" it was held that the viewpoint of the French Government in thus interpreting the Declaration of London could not be con­sidered extreme. Furthermore, as had been decided by the Supreme Court in the case of the Benito Estenger/12 the continuance of a vessel in the same trade as before transfer led to a pre­sumption that the transfer had been effected in order to avoid the consequences of enemy character. Hence the council held that such a transfer to a neutral flag with the object of carrying on enemy trade and of protecting the ship from capture could not be valid against belligerents, hence the capture of the Dacia together with its rigging, apparatus, equipment, and supplies of every kind was de­clared good and valid as a prize to be assigned to the claim:.. ants according to the laws and regulations in force. Ar­ticles and effects, the personal property of the captain and 2 10Cohen, op cit., pp. 133-134. 2nHuberich and King, Prize Code of the German Empire, p. 11. 212176 U. S. Reports, 568. 142 University of Texas Bulletin the crew, if not contraband, were to be restored to the claimants.213 This decision seemed to settle, in the minds of the Allied governments, that the capture of vessels of former German registry, even if bound from neutral port to neutral port with a cargo of non-contraband, was quite legal, and that American registry, no matter whether legal­ly made or not, could not be considered binding. It subsequently developed that the Dacia had been cap­tured by a French cruiser purely because the British Ad­miralty did not wish to reverse its own . policy, 214 hence the British Government was not fully committed to this policy. Later, however, in reply to a written question in the House of Commons on January 21, 1916, Lord Robert Cecil, speak­ing for Sir Edward Grey, stated that the British Govern­ment adhered in full to the provisions of the Declaration of London and the report on these matters. This in sub­stance would mean the acquiescence of the British Govern­ment in the views held by the French Prize Council.215 As no instance of this kind occurred after the abandonment by the Allied governments of the Declaration of London or under the Maritime Rights Order in Council of 1916,216 it may be presumed that the attitude of the Allied governments remained the same throughout the war.211 In the cases of the American Transatlantic Company's steamers, Genesee and Hocking, seized by the British au­thorities while plying between neutral ports, and giving rise to several exchanges of correspondence between the British Government and the United States, there was raised 2139 AJIL, 1015-1027 ( 1915). 214The idea of letting a French cruiser make the capture appears to have been suggested to Sir Edward Grey by Ambassador Page, in order to relieve the British Government of the responsibility in the case of the Dacia. Cf. Hendrick, Burton, J. The Life and Letters of Walter Hines Page, I, 392-397. 215Parliamentary Debates, 1916, Vol. LXVIII, Col. 859 (21.1.16). 21aEW No. 4, pp. 69-72. (7.VIl.16). 217For comment on the cas eof the Dacia, Cf. Garner, op. cit., I, 184­ • 198, passim. Controversy over Neutral Rights the rather important question of so-called "beneficial own­ership," under which category Great Britain held it pos­sible to seize the vessels in question. The British Govern­ment had from the first protested against the transfer of neutral vessels from their registry to American registry under-the American Transatlantic Company, and had taken occasion to seize the Genesee and the Hocking, even though under thoroughly authenticated neutral registry and flag, and while plying between two neutral ports and not carry­ing, therefore, contraband cargo if anything could be con­sidered contraband in coastal traffic from one American port to another, or to a South American port. The history of these cases was not published by the Department of State, inasmuch as the effort of the United States, in this instance at least, was not overwhelmingly successful, and only the final note in the series, on May 10, 1916,218 was made public. Elsewhere the story may be found-hidden in the pages of the Congressional Record and told with all the pro-German bias of the facile pen of the late William Bayard Hale, who may be regarded with suspicion for his motives, although in the main accurate as to the facts.2 19 This much, however, is revealed from the fragmentary correspondence available: that in December, 191~, the De­partment of State had obtained from the British Govern­ment assurances that they would not detain any vessels be­longing to the American Transatlantic Company unless they should carry contraband, pending the decision of the British Prize Court in the cases of the Genesee and Hock­ing. Meanwhile the State Department had made an ex­haustive investigation into the organization of the Ameri­can Transatlantic Company to determine the character of its stockholders. On April 22, 1916, however, the British Embassy informed the Department of State t_hat such ves­sels could no longer enjoy the immunities accorded them 21sEW No. 3, pp. 84-96. (10.V.16). 219Congressional Record, 64th Congress, 1st Session, Vol. LUI: 14. pp. 139-141. University of Texas Bulletin unless the company could give further assurances that its vessels would not trade with Scandinavia or Holland. To this Mr. Lansing replied that the American Trans­atlantic Company, being an American corporation, was re­garded as a citizen of the United States and must be so treated in accordance with the custom of nations. Accord­ing to British Prize Court decisions, British corporations were British in character, regardless of what the political nationality of its shareholders might be, yet in recent cases they had condemned a vessel flying the German flag and refused neutral claimants an opportunity to establish that they were the beneficial owners of 'the vessel, owning the capital stock of the nominal owners, a subsidiary German concern, ruling that such facts would not benefit the claim­ants. Similarly, the British Government had requisitioned British registered vessels in which the entire beneficial in­terest was owned by Americans, holding that ownership by British corporations made them British, not American vessels. Thus British courts did not in any way recognize beneficial ownership in their own cases, yet the British Government sought to condemn the ships of an American corporation on the ground that they were entirely or largely enemy ow;ned, stressing beneficial, rather than actual, own­ership as the criterion of national character. The American Transatlantic Company's stock was, to the best of the Government's information, entirely American owned, hence the United States could only regard these seizures as entirely arbitrary and unwarranted. This had been the original attitude of the United States, but the Gov­ernment had "decided to let the matter rest" after receiv­ing assurances that the remaining vessels would not be captured, pending prize court proceedings, unless these were unduly .protracted, or the remaining vessels carried contraband. The company had agreed to refrain from so doing. In view of this, the United States could not allow matters to stand if the British Government were to re­pudiate the promise it had given. The argument of the United States was continued in the notes discussing the Controversy over Neutral Rights so-called "blacklist," in dealing with ships denied ,privi­leges at British ports. Evidence to substantiate these claims was furnished by the company itself,220 yet, as has already been noted, the net result of the standpoint taken by the United States was nugatory, and utterly preclusive of future claim upon the British Government, because of the adoption of similar lists of "trading-with-the-enemy" firms during the war. The Declaration of London on this point had held that as regards ships, the neutral or enemy character of a vessel 221 was determined by the flag she was entitled to fly, not by the flag she might choose to fly. This is one of t,he rea­sons that gave little opportunity for the United States to make more than a formal protest at the beginning of the submarine warfare in 1915 against the illegal use of the American flag. At that time 222 the United States "reserved for future consideration the legality and propriety of the deceptive use of the flag of a neutral power in any case for the purpose of avoiding capture," but pointed out the seri­ous consequences apt to result from such general use, as it "jeopardized the vessels of the neutral in a peculiar degree by raising the presumption that they were of belligerent nationality, regardless of the flag they carried." Such action the United States viewed with "anxious solicitude" and "grave concern," as it would seem to "impose upon the government of Great Britain a measure of responsibility for the loss of American lives and vessels in case of an at­tack by a German naval force." To this the British Gov­ernment replied that by the British Merchant Shipping Act, the use of the British flag by foreign merchant vessels was permitted for the purpose of escaping capture, and that in their opinion it would be unreasonable to expect Great Britain to pass legislation forbidding the use of neutral flags as a ruse de guerre. Such use was justifiable to escape 22ocongressional Record, 64th Congress, 1st Session, Liil: 9525. (12.Vl.16). 221Cohen, op. cit., p. 140. 222EW No. 1, p. 55. (10.II.15). University of Texas Bulletin captul'e, but a general use of neutral flags was not contem­plated. It was, however, incumbent upon a belligerent war­ship to ascertain the identity of a suspected vessel before attacking it.223 The Declaration of London being in force at this par­ticular time, it was legitimate to expect the British Gov­ernment to conform to its wonted policy of test of na­tionality rather than beneficial ownership as the real cri­terion of enemy or neutral character. This was actually recognized in the case of the Proton.224 But when, on Oc­tober 20, 1915, an Order in Council repealed and made inoperative Article 57 of the Declaration of London, the British Courts, though enjoined to apply the rules formerly in force in such courts, were entirely free to do as they chose in the matter with the result that in 1917 it was held in the case of the Hamborn225 that a vessel registered in Hol­land and flying the Dutch flag was in reality a German ship because the vessel belonged to German owners, though it did not appear that registration in Holland had been il­legal. Still more close to the cases of the Genesee and the Hocking was the case of the Polzeath,226 where a vessel owned by a British corporation whose chief office was in Hamburg and which was controlled in Germany was con­demned and forfeited to the Crown. While this was the case of recognition of beneficial ownership, it does not ap­pear that a similar test could have been applied with suc­cess to the Genesee or Hocking. Nevertheless the British Prize Court, on March 5, 1917, condemned the Genesee and the Hocking as good prize on account of their being bene-, ficially owned by enemy subjects.2 27 223/bid., p. 59. (19.II.15). 22434 Times' Law R eports, 309; also Trehern, op. cit., III, 125. 22s/bid., 145, also Trehern, op. cit., III, 80. 22632 Times' Law R eports, 399, 647; also Law Reports, P. D., 117 (1916). 227Cf. London Times, March 6, 1917, for the decision of the Prize Court. For critical commentary on the cases of the Genesee and the Hocking, cf. Garner, op. cit., I, 198-199. CHAPTER VIII THE CONTROVERSY OVER BLOCKADE It will be remembered that the controversy between the United States and the Allied Governments over restraints on commerce was traced in Chapter VI from the beginning of the war until the issuance of the famous Order in Coun­cil of March 11, 1915, which proclaimed the beginning of a blockade of Germany by the joint Anglo-French naval forces. The blockade, as it was proclaimed, was declared to be an act of retaiiation, according to which no merchant vessel which sailed from her port of departure after the first of March, 1915, was to be allowed to proceed on her voyage to any German port. Unless the vessel received a pass entitling her to proceed to some neutral or allied port named therein, her goods must be discharged in a British port and placed in custody of the marshal of the Prize Court. Goods so discharged, if not contraband, and not requisi­tioned for the use of the British Government, would be re­stored to persons entitled to them upon such terms as the court might deem just. Vessels sailing from German ports after the same date were not to be allowed to proceed with any goods laden in a German port; such goods must be dis­charged in British or Allied ports, and put under similar custody, where they might be detained, requisitioned or sold, the proceeds in the latter instance being paid into the court as the court might deem fit to direct. No proceeds from the sale of such goods were to be paid out until the conclusion of peace, except upon application of the proper officer of the Crown, unless it were shown that the goods had become neutral property before March 11. Nothing in the Order in Council was to prevent the release of neu­tral property laden in a German port on application of the proper officer of the Crown, so as to comply with the pro­visions of the Declaration of Paris. Merchant vessels sailing from their port of departure University of Texas Bulletin after March 1, 1915, en route to non-German ports, carry­ing goods with an enemy destination, or which were enemy property, might be required to discharge the goods in a British or Allied port, on the same conditions as goods bound directly for German ports. Likewise, with merchant vessels from non-German ports, carrying on board goods of enemy origin or which were enemy property, the British or French naval forces might compel the discharge of such goods in British ports subject to the conditions laid down for vessels breaking blockade outward from enemy ports. Interested parties claiming such discharged goods might issue a writ in the Prize Court against the proper officer of the crown and apply for an order that the goods be restored to him, or their proceeds paid to him, subject to the forms of Prize Court procedure. The most important provision laid down in the Order in Council was that merchant vessels clearing for neutral ports from British or Allied ports and proceeding to an enemy port would, if captured on any subsequent voyage, be liable to condemnation. This is peculiarly important, inasmuch as it was distinctly violative of the provisions laid down in the Declaration of London, even as accepted by the Allied Governments. The terms on which the Allied Gov­ernments had accepted the Declaration, it will be remem­bered, were that such vessels proceeding to enemy ports under false papers were liable to capture on the return voy­age only, and not on any subsequent voyage. The terms of the Declaration itself were that a vessel breaking blockade outwards, or attempting to break blockade inwards, was liable to capture as long as pursued by ships of the blockad­ing force, so that if pursuit were abandoned she could not be captured, the report holding that indefinite or unlimited liability to capture would be too extreme a position to take.228 It introduced a considerable modification of Eng­lish law and practice, according to Bentwich, since the rule of English Prize Law had been that a vessel was subje.ct 22scohen, op. cit., p. 90, Article 20. Controversy over Neutral Rights 149 to capture for breach of blockade at any time after leaving port during a continuous voyage to the blockaded place­the very rule that the Allied Governments had reestablished as a condition of their "acceptance" of the Declaration of London. It will be argued in this respect that no blockade had at that time been declared, which is technically but not actually true. All except the notification to neutrals and the delimitation of the blockaded area had been laid down in the Order in Council of August 20, 1914, 229 and when the sham of this action was made clear by the retaliatory, though plainly illegal, measures taken by the German Gov­ernment in instituting a submarine "blockade," there was no longer any modus vivendi of keeping up a half effective and totally undeclared blockade by mere restrictions on the carriage of contraband and by the mining of the North Sea 230 in retaliation for the mining operations of the Ger­man Government. The blockade was now openly acknowl­edged, although its limits were not clearly defined.2" The Order in Council in question concluded by stating that none of its provisions should be deemed to affect the liability of a vessel or goods to capture or condemnation independently of· the order, nor to prevent the relaxation of its provisions in respect of the merchant vessels of any country which declared that no commerce intended for or coming from Germany or belonging to German subjects should enjoy the protection of its flag. This, of course, was a plain bid to all neutrals to depart from their neutrality in favor of Great Britain, and cannot be considered as a legally justifiable practice, as it would mean, in essence, the guaranteeing of neutral rights when they were surrendered to belligerents, or relaxed in their behalf. A decree of the French Republic, dated March 13, 1915, laid down in the main the same provisions as the British Order in Council, but as the correspondence and contro­versy over the blockade are almost entirely with Great 229EW No. 1, p. 7. 230EW No. 4, p. 231. 231EW No. 1, p. 66. (11.Ill.15). University of Texas Bulletin Britain, it is scarcely necessary to detail the provisions of the French decree, save to say that Article 5 stated that in exceptional cases, at the suggestion of the foreign, war, and navy ministers, authorization for the passage through the blockade lines of specified cargoes or certain categories of merchandise destined to or coming from a specified neu­tral country might be granted, but that goods coming from Germany should only be allowed to pass when they were loaded in neutral ports after having paid the custom duties of the neutral country.23~ At this point it may be well, before entering the corres­pondence in regard to the blockade, to point out that, ac­cording to the rules on blockade laid down in the Declara­tion of London, which should, in this instance, be regarded as the criterion of Allied action, a blockade must not extend beyond the ports or coasts belonging to or occupied by the enemy ;233 it must be effectively maintained by a force suf­ficient really to prevent access to the enemy coastline; it must be applied impartially to the ships of all nations; it must be declared, specifying the date of its inception, the geographical limits of the coastline under blockade and the period within which neutral vessels might come out, and notified to neutral powers by the blockading power by means of a communication addressed to the governments direct, or to their representatives accredited to it, and to the local authorities by the officer commanding the blockad­ing force, else the declaration would be regarded as void. These rules were to apply to cases where the limits of the blockade were extended or where a blockade was reestab­lished after having been raised. Raising of a blockade must also be notified. Neutral vessels were liable to capture for breach of blockade contingent upon their knowledge, actual or presumptive, of the blockade. Such presumption was dependent upon the ship's having left a neutral port subsequent to a notification of blockade; otherwise it was 232EW No. 1, pp. 67-68. (13.III.15). 233Cohen, _op. cit., pp. 70-91. incumbent upon the officer of the blockading force to per­sonally notify the existence of such a blockade to the vessel concerned by writing the fact on her log-book. Failing such notification, a neutral vessel must pass free. Neutral ves­sels might not be captured for breach of blockade except within the area of operations of the warship detailed to ren­der the blockade effective. Concerning the meaning of such a rayon d'action or area of operations, considerable conflict had arisen in the Naval Conference, but the consensus of opinion of the reporting committee held that all the zones of action along a blockaded · coast, taken together, and so organized as to make the blockade effective, would be regarded as forming the area of operations of the blockading naval force. It did not seem possible to fix the limits of the area of operations in definite figures, which must be determined according to the circum­stances in each particular case of blockade, as the coast might not be defended by fortifications. Though the area might be rather wide, the whole idea of blockade was in­separable from the effectiveness of operations, and must never reach distant seas and there affect merchant ships,' which could not be proven to be making for a blockaded coast. The specific assurance given by both France and Great Britain that the blockade would not extend further than the European area did not, as will be seen, cover the question of hovering, which has not inaptly been compared to a blockade. According to Article 18 of the Declaration, the blockad­ing forces must not bar access to neutral ports or coasts. This rule, in the opinion of the drafting committee, was necessary to better protect the interests of neutral coun­tries. Concerning this, Bentwich points out that234 a blockade, being exclusively a warlike act, cannot be made to extend to any part of the coast which belongs to a neu­tral power, even though there may be ready means of ac­cess from that neutral country to the enemy country ... It was laid down by Lord Stowell in the case of the Stertn° that ships carrying goods from a blockaded port by means of a canal, or interior means of navigation, to a neutral port which was open could not be seized for breach of block­ade. Thus if England were blockading the German coast, our cruisers could not seize neutral vessels bringing innocent merchandise to or from German ports through the Scheidt. Article 19 further established the provision that what­ever might be the ultimate destination of a vessel or her cargo, she could not be captured for breach of blockade if, at the moment, she was on her way to a non-blockaded port. It was the true destination of the vessel, the Draft­ing Committee held, that was in question, and not the ul­terior destination of the cargo. This, of course, bears out the distinctions so neatly drawn by Lord Loreburn between the objects of contraband interception and the aims of a blockade.m Lord Loreburn, looking at the evils of a purely commer­cial blockade, sees, in any attempt to legalize it, the killing of its efficiency by the permission granted in Article 19 for neutrals to trade with other neutrals adjacent to the enemy, under the supposition that there would be no questioning, in the case of blockade, as to the ultimate destination of the · cargo. Similarly, the noble lord holds that a blockade of the Baltic Sea by the British navy would be legitimate only if Great Britain were at war with all the povy"ers on its littoral, hence in any maritime war in which one country bordering on the Baltic were engaged, the British fleet could not "blockade" the Baltic legally.237 Far different is the view of Sir Francis Piggott in hold­ing that 234Bentwich, op. cit., pp. 44-45. 23s4 Rob. Adm., 65. 236Sir Francis Piggott, in one of his vehement philippics against the protests of the United States, has brought out the fact that if a neutral must sacrifice his rights Jn the carrying of cargoes to bel­ligerent rights, in so far as those cargoes are contraband, the bel­ligerent has one last resort and may take the last right of a neutral to trade with the enemy away from him by the declaration of a blockade, which not only stops all shipping, but puts even non-con­traband under the ban. The Neutral Merchant and Contraband of War and Blockade, p. 77. 231Capture at Sea, pp. 71-102, passim. 153 Controversy over Neutral Rights "contraband" and "blockade" are identical in principle; that they are merely convenient names given to varying exhi­bitions of sea-power against the enemy, and the conse­quences, to enemy and neutral merchant alike, do in fact depend on and vary with the force exhibited, that is, with the number and position of the ships employed upon the service, which, if effectively performed, results in both cases in seizure and condemnation. Blockade in principle is, threfore, nothing more than an indefinite extension of the list of contraband of war, subject only to the requirement that a sufficient number of ships should be placed in such a position as to make this extended threat of seizure effect­ive. This, then, is practically what the Order in Council does.2307 • The writer of this passage then goes on to proclaim that the disappearance of a definite limit to the blockading line, the granting of the broad rayon d' action to a blockading fleet by the Declaration of London is in itself full warrant for the denial of any such strictures upon belligerent right as the waiver of the doctrine of continuous voyage relative to blockade in the Declaration of London would seem to imply. It is the bold assertion in the realm of maritime law that "might is right." Having thus found the legal situation in the allied coun­tries by virtue of the existence of their decrees of Orders in Council-fashioned admittedly on· the Orders in Coun­cil of 1807-to be in direct contrast with the Allied pro­fessions in regard to the Declaration of London, having shown that the unveiling of the sham of an undeclared blockade by the action of the German naval authorities forced the Allied Governments to conform to the form, as well as the substance, of a blockade which had all but been declared before, it remains to be seen how the United States, confronted with such an aggressive exercise of bel­ligerent power, accommodated herself to the situation thus created. This found its first expression in the American note to Great Britain on March 30, 1915,m wherein the United 2a1,piggott, op. cit., p. 79. 23•EW No. 1, pp. 69-72. (30.IIl.15). University of Texas Bulletin States contended that innocent shipments might be freely transported to and from the United States through neutral countries to belligerent territory without being subject to the penalties of contraband traffic or blockade. It was also assumed that the British Government would not dispute the provisions laid down as to blockade and the covering of enemy goods by the neutral flag as laid down in the Declaration of Paris. Calling attention to the case of the Peterhof, under which decision it was held that the mere fact of ulterior enemy destination was not cause for breach of blockade proceedings, the United States held that no claim on the part of Great Britain of justification for in­terfering with these clear rights of the United States to trade with the enemies of Great Britain through neutral ports in goods that were not contraband, could be admitted. To admit it would be to assume an attitude of unneutral­ity towards the enemies of Great Britain which would be obviously inconsistent with the solemn obligations of the United States. For Great Britain to make such claims was to abandon and set at naught her traditional principles. The blockade thus notified, the note continued, would. if defined by the terms of the Order in Council, include all the coasts and ports of Germany and every port of possible access to enemy territory. The novel feature of the block­ade was that it embraced many neutral ports and coasts, barred access to them, and sub.iected all neutral ships seek­ing to approach them to the same suspicion that would at­tach to them if they were bound for the ports of the ene­mies of Great Britain, and to unusual risks and penalties. These constituted distinct invasions of the sovereign rights of the United States. Though the United States recognized that a "close" block­ade might not be possible under modern conditions, the spirit and principles of the established rules of war must be conformed to, whatever form of effective blockade was employed. If the necessities of the case should seem to render it im­perative that the cordon of blockading vessels be extended across the approaches to any neighboring neutral port or 155 Controversy over Neutral Rights country, it would seem clear that it would still be easily prac­ticable to comply with the well recognized and reasonable prohibition of international law against the blockading of neutral ports by according free admission and exit to all lawful traffic with neutral ports through the blockading cor­don. This traffic would of course include all outward-bound traffic from the neutral country and all inward-bound traf­fic to the neutral country except contraband in transit to the enemy. Such procedure need not conflict in any respect with the rights of the belligerent maintaining the blockade since the right would remain with the blockading vessels to visit and search all ships either entering or leaving the neutral territory which they were in fact, but not of right, investing. The United States could not admit that the mere fact of establishing the blockade as an act of retaliation could become an excuse for, or a prelude to, any unlawful action on the part of the British naval forces. It was thus confi­dently expected that the orders actually given would modify in practical application those provisions of the Order in Council which, if strictly enforced, .would violate neutral rights and intercept legitimate trade. The United States took it for granted that the approach of American mer­chantmen to neutral ports situated upon the long line of coast affected by the Order in Council would not be inter­fered with so long as they were not carrying contraband or proceeding to enemy ports. Wit'h such a wide area of operations to cover, it was assumed by the United States . that neutral vessels would have the right to pass through the blockading line in order to reach important neutral ports such as those of Holland and Denmark and Scandi­navia, which were, of course, open for American trade. As Great Britain had no legal right to blockade these ports, it was presumed that she would not do so. From the terms of the Order in Council, the United States also inferred that Scandinavian countries would be !lllowed to trade with German Baltic ports, although it was essential in any block­ade that it bear with equal severity upon all neutrals. The British Government, in its note of July 23, 1915, re­plied to the American contentions, noting that the United ·States admitted the right of a belligerent to establish a blockade of enemy ports, but holding this to be obviously of no value if the belligerent were not permitted to cut off all the sea-borne trade of his adversary. The British Gov­ernment, therefore, found itself unable to accept the con­tention of the United States ·that if a belligerent was so circumstanced that his commerce could pass through ad­jacent neutral ports, his opponent had no right to interfere and must restrict his measures of blockade in such a man­ner as to leave such avenues of commerce still open. This was held unsustainable from either a standpoint of law or the principles of international equity. The British Gov­ernment was unable to admit that a belligerent violated any fundamental principle of international law by apply­ing a blockade in such a way as to cut off the enemy's com­merce with foreign countries through neutral ports if the circumstances rendered such an application of the prin­ciples of blockade the only means of making it effective. It will readily be seen that this plea, reduced to its lowest terms, is none other than that which the German Chancel­lor advanced as his reason for his "chiffon de papier"­that necessity knows no law. Testing the means sought to be employed by the British Government as to whether they conformed to the spirit and principles of the essence of the rules of war, the doc­trine which the United States had been most zealous to ad­vance during the Civil War-the doctrine of continuous voyage-was seen to have applied in American experience equally well to blockade and to contraband. Applying this to the situation confronting Great Britain, it was held that if the blockade could only become effective by extending it to enemy commerce passing through neutral ports; such an extension was defensible and in accordance with principles which had met with general acceptance-the very princi­ples on which the United States had decided to rely when the various belligerents could not come to an agreement as to the unqualified adoption of the Declaration of Lon­don. Citing the case of the Springbok, the British Govern­ment held that what was really important was that adapta­ Controversy over Neutral Rights tions of old rules should not be made unless they were con­sistent with the general principles upon which admitted belligerent rights were based. That was the spirit of the measures taken to intercept commerce with Germany, and the penalty hitherto imposed, that of condemnation and confiscation of the vessel and goods, had been changed so as to avoid confiscation of either for breach of blockade. As regards the charge of the United States that the blockade was embracing neutral ports and coasts and barring access to them, the note held that the measures "could not be properly so described." This circumlocution was an endeavor to avoid admitting what, throughout the entire discussion of blockade, loomed up as the most obvi­ous fact in the whole controversy. In the successful opera­tion of the British blockade, little difficulty would be en­countered by neutrals not trading in contraband except in so far as bordering countries constituted ports of access to and exit from enemy territory. As this was the entire matter in question, it is evident that the note here made a most fundamental acknowledgment. There were many ports, the note alleged, that could not be regarded as offering facili­ties for neutral commerce only, and the only endeavor of the British Government was to interfere with trade with an ultimate enemy destination through such ports. In closing, the note pointed out that many questions re­gardilJ.g the exact method of carrying out a blockade were unsettled. The one fundamental principle obtaining uni­versal recognition was that entitling a belligerent to cut off, by effective means, the sea-borne commerce of his enemy. This was true of blockade; it was the same with contraband. This was the most bald and unequivocal state­ment of the view of Sir Francis Piggott and his correligion­ists of the school of worshipers of sea power.239 The classic reply of the United States to the position taken by Sir Edward Grey is to be found in the note of October 21, 1915,uo in which the United States held that m EW No. 2, pp. 179-181. (23.Vll.15). 2•0EW No. s, pp. 30-34. (21.X.15). University of Texas Bulletin Great Britain's main defense of the successful working of her blockade of Germany had not borne fruit in the ability of the Allied naval forces to distinguish between enemy and neutral trade. The arrangements made in neutral countries to create special consignees or consignment corpo­rations (like the Netherlands Oversea Trust )with power to refuse shipments and to determine the amount of imports actually needed had only hampered neutral trade by the intricacy of s11ch arrangements, thereby much reducing American trade with neutral countries. The shifting of the burden of proof by the belligerents to the neutral shippers to prove neutral destination was an endeavor to make the neutral exercise responsibility that rightfully belonged to belligerents. As regards the blockade itself, the United States was compelled to admit that it had misconceived the intentions of the British Government. The United States had, there­fore, reserved for this occasion the discussion of the validity of the blockade, whose legality is now challenged. The charges made by the United States may be enumerated: (1) That the blockade was ineffective, as instanced by the freedom with which German naval forces cruised in cer­tain portions of the North Sea and in the Baltic, seizing and bringing into German ports goods intended for neu­tral countries. The placing of cotton on the list of absolute contraband by the British Government was adduced as proof of the ineffectiveness of the blockade and· of its doubtful legality. (2) That the blockade was not impartial in its application to the ships of all nations. German ports were open to Scandinavian trade, and Great Britain herself shipped great quantities of goods to Scandinavian ports while denying to American vessels access to the Scan­dinavian coast. It had been held in British Prize Courts that if belligerents themselves traded with blockaded ports they could not be regarded as blockaded. (3) That it block­aded neutral ports, in violation of the Declaration of Lon­don, which the British Government had adopted without modification in that respect, as well as in violation of Sir Edward Grey's instructions to the delegates to the Naval Conference. It was also noted that no limitation on the blockade area nor any penalty for breach of blockade had been prescribed. On all of these grounds the United States was bound to consider the blockade illegal. The British view in the case of the Springbok, as expressed by Sir Ed­ward Grey himself, had been that it was exceedingly doubt­ful if the doctrine of continuous voyage could be applied to a vessel carrying non-contraband material, which was the only instance where condemnation for breach of block­ade alone was warranted. It was not until April 24, 1916, that the British Govern­ment made reply, in concert with the French Government, pointing out, as regards the blockade, that the Allied Gov­ernments had loyally complied with the spirit of the rules as laid down in the Declaration of London, having given due notice of the blockade and having treated liberally all neutral ships finding themselves in German ports at the time. The effectiveness of the blockade, it was pointed out, could be seen in the small number of vessels that escaped the Allied patrols. The most astonishing portion of the note is the one which states that the measures taken by the Allies are aimed at preventing commodities of any kind from reaching or leaving Germany, and not merely at preventing ships from reaching or leaving erman ports. His Majesty's Government do not feel, there­fore, that the rules set out in the United States' note need be discussed in detail ... It need only be added that the rules applicable to a blockade of enemy ports are strictly followed by the allies in cases where they apply-as, for in­stance, in the blockades which have been declared of the Turkish coast of Asia Minor or of the coast line of German East Africa. 'This attempts to ignore the position laid down by the United States. In a subsequent section of the note, how­ever, the question of the blockade of neutral ports is thus ·dealt with: It is no doubt true that commerce from Sweden and Nor­way reaches German ports in the Baltic in the same way that commerce still passes to and from Germany across the land frontiers of adjacent states, but this fact does not ren­der the measures which France and Great Britain are taking against German commerce the less justifiable. Even if these measures were judged with strict reference to the rules ap­plicable to blockades, a standard by which, in their view, the measures of the Allies ought not to be judged, it must be remembered that the passage of commerce to a blockadecl area across a land frontier or across an inland sea has never been held to interfere with the effectiveness of a blockade. If the right to intercept commerce on its way to or from a belligerent country, even though it may entu that country through a neutral port, be granted, it is difficult to see why the interposition of a few miles of sea as well should make any difference. If the doctrine of continuous voyage may rightly be applied to goods going to Germany through Rot­ terdam, on what ground can it be contended that it is not equally applicable to goods with similar destination passing through some Swedish port and across the Baltic or even through neutral waters only? In any case, it must be re­membered that the number of ships reaching a blockaded area is not the only test as to whether it is maintained ef­fectively. The best proof of the thoroughness of a blockade is to be found in its results. (Italics are writers). To argue thus in the face of premises that were them­selves the subject of dispute was but a bold endeavor to hide the fact that the blockade was notoriously ineffective in the Baltic because of the failure of Allied naval forces to control those waters. In regard to the placing of cotton on the list of contra­band, it was alleged in the note that the necessity for such action was the very effort of the Order in Council to spare blockade-breaking goods from condemnation. The im­mense demands in Germany for cotton for military as well as other purposes had, in the opinion of the Allied Gov­ernments entirely justified the placing of cotton on the list of absolute contraband by an Order in Council of August 20, 1915. As regards the retaliatory character of the Allied meas­ures, it was held that the principle of retaliation was one firmly established in international law; that the meas­ures taken by the Allies were not in conflict with any gen­eral principle of international law, of humanity or civili­ Controversy over Neutra! Rights 161 zation; that they were enforced with consideration against neutral countries and were, therefore, juridically sound and valid. Concerning the more abstract question of the legitimacy of measures of retaliation, the Allied Govern­ments thought that the subject was one the consideration 1 of which might well be deferred.2 By this curt refusal, the • Allied Governments put an end to a discussion futile from its inception and extremely embarrassing to the United States, whose view that any concurrence in such measures of retaliation by her would make her own conduct unneutral was thus reduced, from an abstract, though not perhaps from a sentimental standpoint, to reality. This extreme view of the Allied Governments was one based on the in­exorable force of superior sea-power, and the United States had no choice but to submit to it. Before giving a final consideration to the means taken by the Allied Governments to enforce their blockade still fur­ther, once that even the sham of the Declaration of Lon­don had been thrown overboard by the Maritime Rights Order in Council of July 7, 1916,22 , we may advert for a • moment to the discussion of the question of hovering by Allied warships off American ports. This action in particu­lar cases had led the United States to protest to the Brit­ish Government and the Japanese Government in 1914 in regard to the acts of their war vessels off New York and Honolulu, respectively.23 In both cases, the warships were • withdrawn. Mr. Bryan, early in 1915, called attention to the fact that the United States had regarded such conduct throughout the course of the Franco-Prussian war as "un­friendly and offensive" (see Appendix, infra ), but it was not until the Danish steamer Vinland was chased down the Atlantic seaboard of the United States and forced to seek shelter from British war vessels in American territorial waters, whither, it was alleged, the cruiser followed, that further representations were made. In these, reference 241EW No. 3, p. 77. (24.IV.lG). (Italics are wr iter 's). z<2EW No. 4, pp. 69-71. rnEW No. 2, p. 29, (24.IX.14) and p. 61. (20.I.15) . University of Texas Bulletin was made to the unpublished correspondence, which com­prised three notes of October 5, 1914, December 22, 1914, and April 16, 1915, and a request made that the British Ad­miralty instruct its ships to desist from a practice which had been maintained for long periods at a time, and which was peculiarly disagreeable alike to the Government and to American tradesmen.244 In reply, the BritTsh Government maintained that this was a purely extra-legal question, and one in which the United States could claim no right or precedent, as the action of American vessels during the Civil War amply warranted the actions now being pursued by the British cruisers. To this the United States rejoined by saying that much earlier practice, during the Napoleonic wars, had justified the United States in protesting against hover­ing, and that Great Britain herself had protested during the Civil War, not as to the illegality of such action on the part of cruisers, but on account of the irritation that they caused to tradesmen. Fear that German raiders would escape from American ports showed a distinct mistrust of the ability of the United States to maintain her neutrality. Just as the mobilization of an army on a frontier in time of peace might be the cause of peculiar affront, upon the same. principle the constant and menacing presence of cruisers on the high seas near the ports of a neutral coun­try might be regarded as a just cause for offense, although it might be strictly legal. To this the British Government did not even deign to reply. In the chapter dealing with the Declaration of London, brief mention was made of the final withdrawal of accept­ance of the declaration by an Order in Council of July 7, 1916, on the grounds that the successive Orders in Coun­cil had given rise to doubts as to whether the Allied Gov­ernments were acting within the strict bounds of interna­tional law. In the place of the Declaration certain prin­ciples were enunciated and rules laid down for the guid­ance of the Allied fleets. The provisions as to hostile desti­ 244 EW No. 3, pp. 131-141. (20.Xl.lf;). Controversy over Neutral Rights 163 nation were kept with the addition of the case where goods were shipped to or for a person who during hostilities had forwarded contraband goods to an enemy authority . . . or if the ship's papers did not show who was the real consignee of the goods. The principle of continuous voyage was to be applicable both in cases of contraband and blockade. This, of course, obviated any further controversy with the United States unless the latter should seek to push the legal determination of these controversies to actual arbitration. The United States took occasion to back down gracefully from its position by declaring, in a note of Sep­tember 18, 1916, 245 that it deemed the rules established by the Order in Council of July 7, 1916, at variance with the law and practice of nations, and that the United States re­served all of its rights in the premises, including the right not only to question the validity of the rules, but to pre­sent demands and claims in relation to any American in­terests which might be unlawfully affected thereby. Sir Maurice de Bunsen having replied that the United States could challenge their validity in British Prize Courts,m Mr. Lansing replied that without admitting that even in­dividual rights, when clearly violated by Orders in Coun­cil, must be maintained by resort to Prize Courts, the United States must announce that it, of course, had no intention to resort to British courts for the maintenance of such of its national rights as might be infringed by Great Brit­ ain's Orders in Council. On January 10, 1917, the British Government issued another Order in Coun~il defining the status of goods of "enemy origin" or "enemy destination" as applying to goods destined for or originating in any enemy country, "enemy property" being deemed to be goods belonging to any person domiciled in an enemy country. This was to have a retroactive effect on all goods which, having been discharged at a British port or an Allied port, were goods 24 :>EW No. 4, pp. 75-6. 2<6/bid., pp. 76-7. (10.X.16) and reply (24.XI.16). University of Texas Bulletin of enemy, though not German, destination, origin, or own­ership. Similarly, by an Order in Council of February 22, 1917, also modifying the Blockade Order in Council of March 11, 1915, it was held that vessels encountered at sea on their way to or from ports in neutral countries affording access to the enemy without calling at a port in British or Allied territory would, until the contrary was established, be deemed to be carrying goods with an enemy destination or of enemy origin and should be brought into port for exami­nation, and, if necessary, for adjudication by a Prize Court. Any vessel carrying goods with an enemy destination or of enemy origin should be liable to capture and condemnation in respect of the carriage of such goods, provided that ves­sels complying with the foregoing requirements would be condemned only for actual carriage of enemy goods, the presumption being that her touching at an Allied port made her actions just. Such goods, if of enemy origin, when found aboard such vessels, would be liable to condemna­ tion.241 This supplied the missing link in the "effective block­ade" argument that Mr. Lansing had adduced and closed the iron ring of maritime right and supremacy still fur­ther. The United States, in these two instances, gave its tacit consent to the steps already undertaken. There remains the necessity of pointing out the particu­lar conclusions to be reached from our study of the contro­versy over the belligerent exercise of the right of blockade. Concerning this, Professor Hyde points out quite signifi­cantly248 that the British argument appeared to re-st pri­marily on the theory that the right to institute a blockade embraced the right also to render it effective. As has al­ready been pointed out, the practice of the United States in the Civil War offers no justification for the British prac­tice, because the particular cases involved, such as the case of the Springbok or the Peterhof, all involved additionally mEw No. 4, pp. 92-4. (22.11.17). 24sc. C. Hyde, Blockade (State Department Documents) pp. 14-24. Cf. also his International Law, II, 668. Controversy over Neutral Rights the carriage of contraband. No evidence was offered to in­validate the position taken by the United States that the blockading of neutral coasts was not to be permitted, however seriously that might impair the value of the blockade of the enemy's coast. Such a contention that the right to make the blockade involved the right to bar access to neutral coasts has had no general sanc­tion; the tendency has been hitherto distinctly the op­posite. Instead of resembling the old-style blockade, or conforming in any way to it, the effort of the British and French Governments was rather towards an expansion of the right to capture, the only restriction being placed on the action of the belligerents being the ultimate destina­tion or point of departure, or ownership of the goods in question, regardless of whether they were contraband or not. If carried to its logical conclusion, this extended right of capture means the destruction of the principle that free ships make free goods, a point which the British Govern­ment was not anxious to discuss. Professor Hyde draws a very clear distinction in this connection between the right to intercept contraband and that to institute a blockade of hostile territory:""' The former is due to the fact that articles deemed to pos­sess military or other special value to the belligerent into whose territory they come are objects which for that reason the enemy may reasonably endeavor to intercept when so destined. The application of the doctrine of continuous voy­age to contraband merely signifies that the ultimate hostile use was inferred from an ultimate hostile destination and justifies seizure when the article is in transit to a neutral port while actually en route for belligerent territory. The right to establish a blockade is based on the claim that as a consequence of the power which a belligerent is able to exert against a particular place controlled by the enemy, all ac­cess by sea thereto may be lawfully barred. The act of maintenance constitutes a hostile operation undertaken by a naval force and directed against the place blockaded as 2•9Hyde, Blockade, loc. cit. Cf. also his International Law, II, 657­669, passim, especially 668-9. University of Texas Bulletin truly as if it were subjected to bombardment. Such a meas­ure should not be directly or indirectly undertaken with re­spect to territory possessed by states not engaging in the war.2so The placing of a screen or barrier before all commerce bound for neutral territory in proximity to that under block­ade, and the interference with non-contraband and innocent traffic destined to the former justify such opposition as ema­nated from the United States in 1915. It also suffices to account for the lack of general approval on th epart of mari­time states ... In order to protect legitimate neutral trade in non-contraband articles with neutral territory contiguous or in close proximity to that controlled by a belligerent and under blockade, there is needed a definite prohibition of measures either capable of operating as a blockade of neu­tral territory, or serving to enlarge the right of capture. 25°For a defense of the blockade and an attempted refutation of the American contentions, Cf. Garner, op. cit., II, 326-334. It is only fair to add that Professor Garner cites copiously from the writings of proponents and opponents of the Anglo-French blockade. CHAPTER IX. CONCLUSION A summary of the controversy between the United States and the Allied Governments respecting neutral rights and commerce reveals the very wide extension of the rules of maritime war as existing on the outbreak of the World War. The evolution of those rules, as disclosed in the course of the controversy, has been such as to enlarge to a remark­able degree the rights of belligerents at the expense of the rights of neutrals. This may be seen in the matter of cen­sorship, and of mail seizures; in the wide extension of the categories of unneutral service; in the wholesale arming of the merchant fleets of belligerents to pursue limited but discriminate warfare against armed public vessels of the enemy. It is further instanced in the extension of the meas­ures taken against ships and goods of enemy ownership, .actual or beneficial, as well as those of enemy origin or des­tination. Lastly, it is evidenced in the wide extension of the belligerent rights of visit, search, capture, condemna­tion and requisition as well as in the greater extension of contraband lists so as to destroy not only the hypothetical difference between absolute and conditional contraband, but virtually to subject all non-contraband goods to the same fate. In the contest between the defenders of neutral rights and the possessors of sea-power, the victory has in no wise been for the neutral. Undoubtedly, the conditions of modern warfare have either caused, or resulted in, changes in the rules previ­ously obtaining. Under the pressure of naval necessity, contraband and blockade have in reality become dual as­pects of a single process-the interception of enemy com­merce. The power of belligerents to police the ·3eas has resulted in the exaction of compliance by neutrals in bei­ligerent action against neutral nationals and property in ways hardly known before the World War. It is .seriously to be questioned whether in the future the rights of neu­trals, if such there be, will receive any greater acknowledg­ment at the hands of belligerents. It would appear that the cumulative tendency of the measures taken by the Al­lied Governments during the World War was to outlaw com­pletely the group of states which, having broken their cove­nanted word in one instance, did not scruple to trample un­der foot other portions of the law of nations. Viewed in this light, the tendency of Allied measures closely ap­proaches what is legally possible under the provisions of the League of Nations Covenant-the boycotting and banning of a covenant-breaker. In a reorganized society seeking to curb the violence of outlaws, the rights and in­terests of the bystander are altogether likely to be swept away. No position of impartiality, of disinterestedness, of aloofness on the part of the neutral will guarantee him security; rather will his abstention from the enforcement of the common law of nations against branded madefactors mark him out as a tacit accomplice of the lawless and the passive abettor of criminal acts of war against the society of which he forms, albeit unwillingly, a part. Under the Covenant of the League, there can scarcely be immunity for neutrals any more than there will be impunity for out­ laws. Thus it is not inappropriate to question whether .the consistent diminution of neutral rights evidenced in the controversies of the United States with the Allied gov­ernments is not an evidence of a tendency in consonance with the political integration of the world into a closer in­ternational society. Under such circumstances, the free­dom of the seas, involving of old a balance of power be­tween neutrals and belligerents, will simply cease to exist, and legal authority of an unchallengable character will be vested in such naval powers as command and police the seas, to keep open the channels of commerce for law­abiding nations, while utterly closing the world's highway to the commerce of lawbreakers. It is along such lines that the problems which vexed non-participants in the World War are most likely to be solved. APPENDICES THE TRANSFER OF MERCHANT SHIPS OF A BELLIGERENT TO A NEUTRAL AFTER THE OUTBREAK OF WAR CONCLUSIONS FROM THE MEMORANDUM ATTACHED 1. Merchant ships of a belligerent may be transferred to a neu­tral after the outbreak of hostilities. 2. If the sale of the ship is made in good faith, without defeas­ance or reservation of title or interest in the vendor, without any understanding, expressed or tacit, that the vessel is to be retrans­ferred after hostilities, and without the indicia or badges of a col­lusive or colorable transaction. 3. But the transfer cannot be made of such vessels in a blockaded port or while in transitu. 4. The transfer must be allowable under and in conformity to the municipal regulations of the country of the neutral purchaser. 5. The declaration of the London convention that transfers of an enemy vessel to a neutral during war will not be valid unless it be shown that the same was not made to evade the consequences to which an enemy vessel, as such, is exposed, if it were controlling of the question, relates only to the good faith of the transfer and not to the ulterior motives of the parties to reap the natural advantages to :flow from the operation of the vessel under the :flag of a country not at war, while it inverts the burden of proof of the good faith of the transaction. THE RIGHT OF NEUTRALS TO PURCHASE MERCHANT SHIPS FROM BELLIGERENTS IN TIME OF WAR INTRODUCTORY The right of neutrals to purchase merchant ships from belligerents in time of war is based upon, and is indeed part of, the right of neu­trals to continue in time of war to trade with belligerents, which right is undoubted, subject to certain exceptions, relating princi­pally to contraband and blockade. This right to trade with bellig­erents is of universal recognition, although on occasions it has been denied in practice. During the Napoleonic wars the French and British Governments assumed to dictate the trade in which neutrals should be permitted to engage with the belligerents and to prohibit them from trading with belligerents altogether. But these decrees met with the firmest resistance on the part of the American Govern­ment at the time, and after the occasions which produced them had passed, the English Government was compelled to reprobate and University of Texas Bulletin abandon them. The commerce of neutrals should not be interrupted by the exigencies of war. The right of the citizens of a neutral country to trade in merchant vessels belonging to the citizens of a belligerent, with certain well-defined exceptions, may be said to be of well-nigh universal admission. The position of the United States on this question is historical, and, so far as my investigation has extended, has been uniform. This position may be stated as follows: A neutral has a perfect right to purchase the merchant vessels of a belligerent during a state of war, when such purchase is bona fide, without defeasance, reservation of title or interest, and intended to convey perfect and permanent title to the purchaser. This rule is subject to certain exceptions· herein noted. PRECEDENTS I shall now recite some of the precedents illustrating the position uniformly maintained by the United States. 1. February 19, 1856, Secretary of State Marcy to Mr. Mason: "The principle, therefore, that a neutral has a perfect right to purchase the merchant vessels of a belligerent has been maintained by England, by Russia, and by the United States; and it is incon­sistent with these historical facts to say that the contrary doctrine avowed by France has had the sanction of the chief maritime nations or that it forms part of the whole doctrine of maritime law." (Msc. Inst. France, Vol. XV, 321; see 11th Waits State Papers, 203.) (The position thus stated by Secretary Marcy is undoubtedly in harmony with the general English rule, but has been contested by France, where, under governmental regulations, enemy-built vessels cannot be made neutral by a sale to a neutral after hostilities begin. It is also claimed that the position of Russia is in line with the French contention. But it appears that the position of Russia is correctly stated by Secretary Marcy, supra.) Secretary of State Cass to United States Consuls, Circular No. 10, June 1, 1859: "Inquiries having been addressed to the Department as to the right of a citizen of the United States to purchase the vessel of a bel­ligerent during the present war in Europe, I have to inform you that a similar question arose during the late Crimean War and was de­liberately and carefully investigated by the administration for the time being and resulted in the conviction that a vessel so purchased in good faith becomes the property of the purchaser and is entitled to the protection of the flag of the United States, though a special act of Congress would be necessary to enable her to obtain a regis­ter from the proper department. These views are entirely concurred in by the existing executive Government of the United States, and will be maintained whenever there may be occasion therefor." Controversy over Neutral Rights To the same effect, Secretary Cass to Mr. Mason, June 20, 1859, (30 MS Dom. Let., 414), and Secretary Cass to Mr. Gittings, Junt. 24, 1859, (30 MS Dom. Let., 429). The regulations referred to, supra, pointed out that the purchase, in order to be valid, must be in good faith and not a simulated pur­chase of vessels to be employed in hostile operations against coun­tries with which the United States are at peace. In this connection it is safe to say that where there has been merely an outward trans­fer of title, as when the original owner is left in command and direc­tion of the vessel, and the same is continued in identically the same service of trade, especially where the original owner retains, though secretly, an interest in the vessel or its operation, the sale would be treated as a mere subterfuge to screen the vessel from capture by one of the belligerents, and in such case the ostensible owner would not be entitled to the protection accorded to a vessel flying the flag of the neutral country. (Under this, see Mr. Fish, Secretary of State, to Mr. Marsh, January 29, 1877, MS Inst., to Chile, Vol. 2, p. 11). Boutwell, Secretary of the Treasury, to Mr. Washburne, Minister to France, May 23, 1871, and sent to the Secretary of State at the same time (see MS. Misc. Let.): 2. "Can a foreign vessel be purchased by a citizen of the United States?" "In reply, I have.to observe that the natural right to acquire prop­erty by purchase has been held by high authority to be unaffected, so far as neutrals are concerned, by the mere fact that a state of war exists between two or more powers, from the citizens or sub­jects of one of which the purchase is made. Such right is subject, however, to the restrictions imposed by international law, by treaty, or by belligerent powers, respectively, as to the property of their own citizens or subjects puring the existence of such war. This principle is stated by one of the former Attorneys General of the United States, as follows: 'A state of war interrupts no contract of pur­chase and sale, or of transportation, as between neutral and bel­ligerent, except in articles contraband of war.'" 3. The opinion of the Attorney General referred to was that of Mr. Cushing in 1854 (6 Op. Atty. Gen., p. 638) and 1855 (7 Op. Atty. Gen., p. 538), wherein the Attorney General said: "A citizen of the United States may purchase a ship of a bel­ligerent power, at home or abroad, in a belligerent port, or on the high seas, provided the purchase be made bona fide and the property passed absolutely and without reserve, and the ship so purchased be­comes entitled to bear the flag and receive the protection of the United States.'' 4. On June 20, 1879 (Foreign Relations, 1879, p. 884), Secretary of State Evarts to Mr. Christiancy, minister to Peru, affirmed the University of Texas Bulletin general doctrine as above stated, but pointed out the temptations to the abuse of the right and the great danger from inconsiderate ac­ tion on the part of United States consuls in facilitating such trans­ fers, but stated that "although the validity of the transfer may in the end be judicially inquired into, much harm might result from a simulated sale before a final decision on the subject could be reached; still the possible abuse of power by a sale is not a sufficient reason for abrogating the power, especially if Congress should abstain from forbidding the purchase and use abroad of foreign-built ships by American citizens." In a letter to Minister Christiancy, December 26, 1879 (Foreign Relations, 1879, p. 894), and in a similar instruction to the minister to Chile, Secretary Evarts again stated, among other things, that: "The right of Americans to buy foreign-built vessels and to carry ·on commerce with them is clear and undoubted.... As a conse­ quence; an adjunct of this right, that of flying the American flag, cannot be prohibited. If circumstances justify on the part of the consular officers, an opinion that the sale is honest and that the ves­ sel has really become the property of a citizen of the United States, she may properly fly the flag of the owner's country as an indication of such ownership and as an emblem of the owner's nationality." (In this connection he said that a ship so transferred but not reg­ istered as an American vessel was not entitled to the immunities and thorough protection accorded to registered American vessels plying between ports of the United States and those of foreign coun­ tries; that American owners domiciled abroad and engaged in busi­ ness of that sort take upon themselves the risks to such traffic, and that, if seized by one of the belligerents, they have no right of diplo­ matic protection other than that they should be accorded fair treat­ ment in prize courts.) 5. In reply to request for sanction of a proposed transfer of an enemy vessel to a neutral in a blockaded Cuban port in 1898, the De­ partment said, through Assistant Secretary Moore, that it would not give such desired permission or any privilege to the transfer from a belligerent to a neutral of a vessel in a blockaded port. (Mr. Moore to Messrs. Butler et al., May 10, 1898, 226 Dom. Let., 378.) (The refusal of this request was evidently based upon the fact that the vessel intended to be transferred was at the time in a blockaded port of the Cuban Government. It will be seen that this forms an exception to the general rule as hereinbefore stated.) 6. In this same connection, the case of the Benito Estenger (176 U. S., 568) is valuable as illustrating the general principle stated. In that case Chief Justice Fuller said: "Transfer of vessels fiagrante bello were originally held invalid, • but the rule has been modified and is thus given by Mr. Hall, who, stating that in France their sale is forbidden and are declared to be Controversy over Neutral Rights 173 prize in/all cases in which they have been transferred to neutrals after the buyers could have knowledge of the outbreak of the war, says: 'In England and the United States the right to purchase ves­sels is in principle admitted, they being in themselves legitimate ob­jects of trade as fully as any other kind of merchandise, but the practice of fraud being great, the circumstances attending a sale are severely scrutinized and the transfer is not held to be good if it is subjected to any condition or tacit understanding by which the ven­dor keeps an interest in the vessel or its profits, control over it, and power of revocation, or a right to its restoration at the conclusion of war.'" He cites Justice Story on Principles and Practice of Prize Courts, who states: "In respect to the transfer of enemy's ships during war, it is certain that purchases of them by neutrals are not in gen­eral illegal, but are liable to great suspicions, and if good proof be not given of their validity by bill of sale and payment of a reason­able consideration, it will materially impair the validity of a neutral claim; and if after such transfer the ship be employed habitually in the enemy's trade or under the management of a hostile proprietor, the sale will be deemed merely colorable and collusive.'' (The Chief Justice cites several English cases, which are valuable on the question of fraudulent and colorable transfers.) 7. The Russian Prize Regulations of March 27,1895, section 7 (Foreign Relations, 1904, p. 736), prescribe that merchant vessels ac­quired from the hostile power, or its subjects, by persons of neutral nationality are acknowledged to be hostile vessels, unless it be proven that the acquisition must be considered according to the laws of the nation to whom the purchaser belongs as having actually taken place before the purchaser received news of the declaration of war, or that the vessels acquired in the manner mentioned, although after the re­ceipt of such news, were acquired conscientiously and not for the purpose of covering hostile property. 8; I find no citation of any American precedent or authority which denounces the general doctrine of the right of a neutral to purchase the vessel of a belligerent in time of war, where such purchase is made in good faith and is not subject to the charge that it was color­able or collusive only. AUTHORITIES ON INTERNATIONAL LAW 1. Oppenheim's International Law (p. 206), discussing this ques­tion, says: "Since many vessels are liable to capture, the question must be taken into consideration whether the fact that an enemy vessel has been sold during war to a subject of a neutral or to a subject of the belligerent state whose forces seized her has the effect of excluding her appropriation. It is obvious that if the question is answered University of Texas Bulletin in the affirmative, the owners of enemy vessels can evade the danger of having their property captured by selling their vessels. There is no general rule of international law which answered this question. The rule ought to be that, since commerce between belligerent sub­jects and neutral subjects is not at all prohibited through the out­break of war, a bona fide sale of enemy property should have the effect of freeing such vessels from appropriation, as they are in fact no longer enemy property. But the practice among the states varies. Thus France does not recognize any such sale after the outbreak of war. On the other hand, the practice of Great Britain and the United States of America recognizes such sales, provided they are made bona fide and the new owner has actually taken possession of the sold vessel. If the sale was contracted in transitu, the vessel having started her voyage as an enemy vessel, the sale is not recog­nized when the vessel is detained on her voyage before the new owner has taken actual possession of her." (The attempted sale of a vessel in transitu seems to form another exception to the rule permitting the sale of enemy vessels to neutrals. This and the other exception of an attempted sale of an enemy ves­sel in a blockaded port appear to constitute the two principal ex­ceptions.) 2. Halleck's International .Law (Vol. 2, p. 93), discussing the sub­ject, says: "The transfer, in time of war, of the vessel of an enemy to a neu­tral is a transaction, from its very nature, liable to strong suspicion and consequently is examined with a jealous vigilance and subjected to rules of peculiar strictness in the prize court of an opposite bel­ligerent. Nevertheless, neutrals have a right to make such p1,1r­chases of merchant vessels, when they act with good faith, and the belligerent powers are not justified, by the law of nations, in attempt­ing to prohibit such transfer by a sweeping interdiction, as was done in former years by the French and English governments. Ordi­nances of this character form no part of the law of nations, and con­sequently are not binding upon the prize court, even of the country by which they are issued. Nevertheless, when the sale is claimed to have been made by an enemy to a neutral in time of war, it is not unreasonable that these motives and terms should be an object of searching inquiry. Hence courts of admiralty have established se­vere rules respecting these transfers." (He states these rules to be in substance: the sale must be abso­lute and unconditional; the title and interest of the vendor must be completely and absolutely divested; if lhere is a covenant, 'lgreement or tacit understanding by which he retain& any proof of his interest, the contract is vitiated and in international law is regarded as void. He points out various instances in which a sale would be considered as colorable only.) Controversy over Neutral Rights 3. Phillimore's International Law, Volume 3, page 735, says: "In respect to the transfers of enemy ships during war, it is cer­tain that purchases of them by neutrals are not in general illegal; but such purchases are liable to great suspicion; and if good proof be not given of their validity by bill of sale and payment of a rea­sonable consideration, it will materially impair the validity of the neutral claim; and if the purchase be made by an agent, his letters of procuration must be produced and proved; and if, after such transfer, the ship be employed habitually in the enemy's trade or under the management of a hostile proprietor, the sale will be deemed merely colorable." He quotes the Privy Council in 1857 as follows: "The general rule is open to no doubt. A neutral, while a war is imminent, or after it has commenced, is at liberty to purchase either goods or ships (not being ships of war) from each belligerent, and the purchase is valid whether the subject of it be lying in a neutral port or in an enemy's port. During a time of peace, without prospect of war, any transfer sufficient to transfer the property between the vendor and vendee is good; a~o against a captor if war afterwards unexpectedly breaks out. But in case of war, either actual or immi­nent, this rule is subject to qualifications and it is stated that in such case a mere transfer by documents, which would be sufficient to bind the parties, is not sufficient to change the property as against captors as long as the ship or goods remain in transitu." LONDON CONVENTION OF 1909 The London convention (which was not ratified by the signatory powers and becomes valuable only as indicative of the disposition of the several governments) confirms rather than denies the position herein maintained. Article 56 of the convention is as follows: "The transfer of an enemy vessel to a neutral flag affected after the outbreak of hostilities is void unless it is proved that such trans­fer was not made in order to evade the consequences to which an enemy _vessel, as such, is exposed. "Provided that there is an absolute presumption that a transfer is void­" (1) If the transfer has been made during a voyage or in a block­aded port. "(2) If a right to repurchase or recover the vessel is reserved to the vendor. "(3) If the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing have not been ful­filled." The effect of this article would be merely to change the burden of proof by reversing the presumption of the bona fidrs of the sale University of Texas Bulletin and specifying certain conditions under which the sale would be con­clusively presumed to be void. But this article does not change the general rule which I have asserted, to-wit, that the sale of a bel­ligerent vessel to a neutral in time of war is valid where such sale is made in good faith and divests all title and interest of the vendor. In this connection the report of the drafting committee of the con­vention is instructive. Of this article it is said: "The rule respecting transfer made after the outbreak of hostilities is more simple. Such a transfer is only valid if it is proved that its object was not to evade the consequences to which the enemy vessel is exposed. The rule accepted in respect to transfers made before the outbreak of hostilities is inverted. In that case there is a pre­sumption that the transfer is valid; in the present that it is void, provided always that proof to the contrary may be given. For in­stance, it might be proved that the transfer had taken place by inheritance." In this same connection, attention is directed to the report to their government by the British delegates to the convention respecting the work of the convention. . Referring to this article, they said: "The provisions respecting transfers made during war are less compli­cated. The general rule is that such transfers are considered void unless it be proved that they were not made with a view to evade the consequences which the retention of enemy nationality would entail. This is only another way of stating the principle already ex­plained that transfers effected after the outbreak of hostilities are good if made bona fide, but that it is for the owners of the vessels transferred to prove rnch bona fides. The provisions under this head are practically in accord with the rules hitherto enforced by British prize courts.'' From all of which it will appear that the declaration of the Lon­don convention on the question of the transfer of merchant vessels from a belligerent to a neutral flag, but restates the position long maintained by the United States, Great Britain, and most of the other maritime nations, except as to the burden of proof of the bona fides of such a t~nsfer made during the existence of war. It is the bona fides of the sale which is the essence of a good transfer, and it is not perceived that the ulterior motive actuating the parties to the transfer is to govern, though such motive may have been the natural advantages in having the ship to fly the flag of a neutral rather than that of a country at war. If the transfer was bona fide, without de­feasance or reservation of title or interest, without any understand­ing that the vessel should be rjltransferred at the end of hostilities, and without other indicia of a simulated or fictitious transfer, and not of a ship in a blockaded port or in transitu, the transfer is valid under international law, as it would be under the London conven­tion, though the ulterior motive of the vendor and vendee may have Controversy over Neutral Rights been the natural advantage~ of flying the flag of a country at peace. This memorandum . . . it is believed, correctly presents the status of the question involved. CONE JOHNSON. Solicitor's Office, State Department, August 7, 1914. Congressional Record, LI: 13572. Cf. also Sen. Doc. 563, 63d Con­gress, 2d Session, pp. 83-89. ON BOARD UNITED FRUIT COMPANY'S STEAMSHIP ":\!ETAPAN" October 8, 1914. SENATORS THOMAS AND SHAFROTB, Washington, D. C.: This is an American vessel, flying the American flag. On Sunday, the 4th instant, between Cartagena and Puerto Colombia, at 10 :30 a. m., this ship was boarded by two French officers and two armed soldiers from the French war vessel, the Conde, who, through the captain, after having examined the ship's papers, ordered all the passengers into the dining-room. After some ten minutes all were per­mitted to leave the dining-room except five young Germans, who were held imprisoned and compelled to each sign a parole in order to gain their liberty, binding them not to engage with Germany in this war against France, etc. After these young Germans had each signed in triplicate this pa­role, the French officers and armed soldiers departed from the Metapan to the Conde, which had stood by during the search and seizure. The Metapan was held for two and a half hours or more. This vessel had been recently transferred from a British ship to an American ship with other vessels of the United Fruit Company. This is her first voyage as. an American ship. The captain and all the officers, save the physician and the third officer, are British sub­jects. The captain did not protest, so far as I oculd see or hear. He admitted to the American consul at Barranquilla, Mr. Isaac Manning, that he did not protest. I witnessed the entire proceedings as here­in recited. I called the captain to account afterwards, and he claimed he did not know whether the Conde had the right to imprison and take off his ship these five Germans, said he could not find out until he ar­rived in New York. He said he would know his rights and _duties if this were a British ship.... This American ship was sailing between two Colombian ports, neu­tral ports. Its entire voyage is between .neutral ports, unless it should halt at Jamaica. Four of these Germans were sailing from New York to Puerto Colombia, Colombia, and one went on board at 178 University of Texas Bulletin Cartagena, for Puerto Colombia. They were all going into the in­terior of Colombia, away from Germany. Two were born in Ger­many. One other was physically incapacitated to serve in the Ger­man army and exhibited papers from the German. Government to that effect. Here was an outrage committed on American soil, under the American flag, by the Conde-the passengers were all practically imprisoned on an American ship by French officers of war. I urged Mr. Manning to protest and to report upon this act of the Conde. He has made a report of this affair to the United States Government. I have this report in a sealed envelope in my possession, with in­structions to mail it when I reach the United States. These are the facts as I know them. Yours, ROBERT W. PATTERSON. Congressional R ecord, LI: 16765-6. (17.X.14). NEUTRALITY AND TRADE IN CONTRABAND The Department of State has received numerous inquiries from American merchants and other persons as to whether they could sell to governments or nations at war contraband articles without. violating the neutrality of the United States, and the Department has also received complaints that sales of contraband were being made on the apparent supposition that they were unneutral acts which this Government should prevent. In view of the number of communications of this sort which have been received, it is evident that there is a widespread misapprehen­sion among the people of this country as to the obligations of the United States as a neutral nation in relation to trade in contraband and as to the powers of the executive branch of the Government over persons who engage in it. For this reason, it seems advisable to make an expfanatory statement on the subject for the information of the public. In the first place, it should be understood that, generally speak­ing, a citizen of the United States can sell to a belligerent govern­ment or its agent any article of commerce which he pleases. He is not prohibited from doing this by any rule of international law or by any treaty provisions, or by any statute of the United States. It makes no difference whether the articles sold are exclusively for war purposes, such as firearms, explosives, etc., or are foodstuffs, cloth­ing, horses, etc., for the use of the army or navy of the belligerent. Furthermore, a neutral government is not compelled by interna­tional law, by treaty, or by statute to !)revent these sales to a bel­ligerent. Such sales, therefore, by American citizens do not in the least affect the neutrality of the United States. It is true that such articles as those mentioned are considE:red ron­ Controversy over Neutral Rights traband and are, outside the territorial jurisdiction of a neutral na­tion, subject to seizure by an enemy of the purchasing government, but it is the enemy's duty to prevent the articles reaching their des­tination, not the duty of the nation whose citizens have sold them. If the enemy of the purchasing nation happens for the time to be unable to do this, that is for him one of the misfortunes of war; the inability, however, imposes on the neutral government no obHgation to prevent the sale. Neither the President nor any executive department of the Gov­ernment possesses the legal authority to interfere in any way with trade between the people of this country and the territory of a bel­ligerent. There is no act of Congress conferring such authority or prohibiting traffic of this sort with European nations, although in the case of neighboring American republics, Congress has given the President power to proclaim an embargo on arms and ammunition when in his judgment it would tend to prevent civil strife. For the Government of the United States itself to sell to a bel­ligerent nation would be an unneutral act, but for a private indi­vidual to sell to a belligerent any product of the United States is neither unlawful nor unneutral nor within the power of the execu­tive to prevent or control. The foregoing remarks, however, do not apply to the outfitting or furnishing of vessels in American ports or of military expeditions on American soil in aid of a belligerent. These acts are prohibited by the neutrality laws of the United States. Department of State, October 15, 1914. Congressional Record, LI: 16814. Cf. also Sen. Doc. 604, 63d Con­gress, 2d Session, pp. 3-4. ATTITUDE OF THE UNITED STATES GOVERNMENT TOWARDS HOVERING Secretary of State Hamilton Fish to E. B. Washburne, Minis~er to France: Department of State, WASHINGTON, October 4, 1870. This Government desires and intends to maintain a perfect and strict neutrality between the two powers which are now unfortu­nately engaged in war. It desires also to extend to both the mani­festation of its friendly feeling in every possible way and will allow to the vessels of war of each power equally the hospitality of its ports and harbors for all proper and friendly purposes. But this hospitality is liable to abuse, and circumstances have arisen to give rise in the minds of some persons to the apprehension that attempts at such abuse have taken place. 180 University of Texas Bulletin I am not in possession of facts to justify me in saying that such has been the case, but I have deemed myself justified in calling the attention of M. Berthemy, the French representative at this Capi­tal, to the current rumors, sustained, as they are, by the presence of a number of French vessels upon the coast of the United States. These vessels have appeared at or near the entrance of the harbor of New York, off Sandy Hook; at the entrance of the Long Island Sound; at or near the entrance of the Chesapeake Bay. One or more is rep­resented to have been anchored not far from Sandy Hook, the main entrance to New York harbor, and there is a difference of statement as to the precise distance at which she lay from the shore, some claiming that she was within a marine league. But of this there is no positive evidence. She has entered the port of New York-as claimed by som~for the purpose of watching a German steamer about to sail thence. Three of them have put into the harbor of New London (which looks out upon Long Island Sound, the eastern en­trance to the New York Harbor), avowedly for some small repairs; one recently asked permission, which was granted, to make some re­pairs at the Norfolk Navy Yard, near the entrance of Chesapeake Bay. All this may be consistent with the intention of perfect observance of the neutral character of our waters and jurisdiction, and with an entire absence of undertaking any hostile movement against the ves­sels of North Germany from those waters or that jurisdiction. A large trade has been carried on from the ports of the United States approached by the waters in which these vessels have thus appeared by vessels belonging to North Germany. The appearance of French vessels in these immediate neighbor­hoods in such numbers and force does not fail to excite the alarm of these vessels and must have the effect to a greater or less degree to diminish that trade. The United States are not prepared at present to say that any actual violation of international law has been committed or that the hospitality of these waters has been positively abused. But the hovering of the vessels of war of a belligerent on the coasts near the entrance of the principal ports of a friendly power does interfere with the trade of the friendly power. The interruption of the regular communication with you, by rea­son of the investment of Paris, has led me to represent to M. Berthemy our views on this subject and to say that, although the vessels of either belligerent may not actually shelter within the jurisdiction of the United States and proceed thence against the vessels of its enemy, this Government would regard as an_ unfriendly act the hovering of such vessels upon the coast of the United States, near to its shores, in the neighborhood of its ports, and in the track of the ordinary com­ Controversy over Neutral Rights merce of these ports with intent to intercept the vessels of trade of its enemy. I have requested M. Berthemy to make known these views to the French Government and to express the confident hope of the Presi­dent that there may be no cause of complaint on the part of this Government by reason of any such hovering by the vessels of the French Government. You will be pleased to take an early opportunity to present the same view to the minister for foreign affairs, which you may do by reading to him this dispatch. HAMILTON FISH. Congressional Record, LII:1782 (18.I.15). (Italics are writer's.) STATEMENT AS TO USE OF CABLES AND WIRELESS Department of State, WASHINGTON, D. C., January 20, 1915. Communication by wireless cannot be interrupted by a belliger­ent. With a submarine cable it is otherwise. The possibility of cutting the cable exists, and if a belligerent possesses naval superior­ity the cable is cut, as was the German cable near Azores by one of Germany's enemies, and as was the British cable near Fanning Island by a German naval force. Since a cable is subject to hostile attack, the responsibility falls upon the belligerent and not upon the neutral to prevent cable communication. A more important reason, however, at least from the point of view of a neutral'government, is that messages sent out from a wireless station in neutral territory may be received by belligerent warships on the high seas. If these messages, whether plain or in cipher, di­rect the movements of warships or convey to them information as to the location of an enemy's public or private vessels, the neutral territory becomes a base of naval operations, to permit which would be essentially unneutral.' As a wireless message can be received by all stations and vessels within a given radius, every message in cipher, whatever its in­tended destination, must be censored; otherwise military information may be setlt to warships off the coast of a neutral. It is manifest that a submarine cable is incapable of becoming a means of direct communication with a warship on the high seas. Hence its use can­not, as a rule, make neutral territory a base for the direction of naval operations. WILLIAM JENNINGS BRYAN. EW No 2, p. 58. University of Texag Bulletin Department of State, WASHINGTON, March 3, 1915. HON. OSCAR W. UNDERWOOD, House of Representatives. My Dear Mr. Underwood: The Secretary has ... requested me to address you on a subject of vital importance to the Government in the present war situation. I refer to the necessity for additional legislation to enable the Gov­ernment to enforce its neutral duties during the present war. It is known in some quarters that the Government has been hindered by l~ck of sufficient legislation to prevent vessels from leaving American ports with coal and supplies for warships at sea in contravention of the neutrality of the United States. The United States is bound by treaties in force to prevent the use of its ports as bases of naval operations, but there is no legislation by Congress to enable the Gov­ernment to carry out these obligations. The Department of Justice, therefore, has drafted a proposed reso­lution which, in its opinion, will give the President such power as will be necessary to carry out the neutral obligations of the Govern­ment in these respects. The Department of State heartily supports the proposed resolution, and I desire to emphasize the great urgency and need of the immediate passage of a resolution in some such form as the one enclosed, in order that, in the present critical situation brought about by the stupendous conflict in Europe, the Government may not be bound internationally and yet have its hands tied so as to be unable to act in the discharge of its internationfl duties. Very sincerely yours, ROBERT LANSING. Congressional Record, Lil:5454 ( 3.111.15). BIBLIOGRAPHY BIBLIOGRAPHICAL NOTE The accompanying bibliography has been prepared with a view to giving in a brief compass an accurate guide to the primary sources from which the foregoing study has been drawn. Attention is here directed to the fact that for purposes of convenience to the reader, citations have been made almost exclusively from the American sources, which are more easily verifiable. The dates follow inva­riably those given in the European War Whitebooks issued by the Department of State. Magazine and periodical lit­erature, largely because of its inaccessibility, has been ex­cluded from the bibliography, although, in selected in­stances, references to important articles have been given in the footnotes. BIBLIOGRAPHY SOURCE MATERIALS: AMERICAN. GENERAL: American Journal of International Law; Volumes VIII-XI, 1914-17. Cited as AJIL. American State Papers, Foreign Relations, Volumes I-IV. Congressional Record, 63d, 64th and 65th Congresses. Digest of International Law, by John Bassett Moore, Volumes I-VIII. Washington, Government Printing Office, 1906. Diplomatic Correspondence of the American Revolution, Volumes I-VI, edited by Francis Wharton, Washington, Government Print­ing Office, 1889. Foreign Relations of the United States, 1907-1914. House and Senate Documents, 63d, 64th and 65th Congresses. Messages and Papers of the Presidents, edited by James D. Rich­ ardson, Washington, Government Printing Office, 1900. Papers Relating to the Treaty of Washington, Volumes I-VI, Wash­ington, Government Printing Office, 1872. Treaties, Conventions, International Acts, Protocols and Agree­ments Between the United States of America and Other Powers: Volumes I-II, (1776-1909) compiled by W. M. Malloy (1910); Volume III, ( 1910-1923) compiled by C. F. Redmond (1923). United States Naval War College International Law Topics and Discussions, 1912-1917. United States Revised Statutes. · United States Statutes at Large. United States Supreme Court Report1. SPECIAL: Publications of the Department of State, as follows: Abstracts of Cases contained in Lloyd's Reports of Prize Cases, Volumes 1, 2, 3, 4, by Charles Noble Gregory. 1919. Blockade, by Charles Cheney Hyde. 1918. Debates in the British Parliament, 1911-1912 on the Declaration of London and the Naval Prize Bill. 1919. Diplomatic Correspondence with Belligerent Governments re­ lating to Neutral Rights and Commerce. (Printed and Dis­tributed May 27, 1915). Cited as European War, No. 1. Diplomatic Correspondence with Belligerent Governments re­ lating to Neutral Rights and Duties: (Printed and distributed October 21, 1915) Cited as European War No. 2; (Printed and Distributed August 12, 1916) Cited as European War No. 3; (Printed and Distributed May 18, 1918) Cited as European War No. 4. The Laws of Mariti"me Warfare Affecting Rights and Duties of Belligerents, as Existing on August 1, 1914, by Harold H. Martin and Joseph R. Baker. 1918. The Laws of Neutrality as Existing on August 1, 1914. 1918. Maritime War, by Charles Cheney Hyde. 1918. National Character in relation to Property, by C. C. Hyde. 1918. Neutrality Proclamations, 1914-1918. 1918. The Program of the Freedom of the Sea, by Christian Meurer, translated by Leo J. Frachtenberg. 1919. Special Supplements to the American Journal of International Law: Volume IX: July, 1915; Volume X: October, 1916; Vol­ume XI: October, 1917. SOURCE MATERIALS: BRITISH. British and Foreign State Papers1 Volumes100-113 (1906-7-1920). Command Papers as follows: Cd. 4554. Misc. No. 4, (1909) Correspondence and Documents respecting the International Naval Conference held in London, December, 1908-February, 1909. Cd. 4555. Misc. No. 5, (1909)Proceedings of the International Naval Conference held in London, December, i908­February, 1909. Cd. 7739. Treaty Series, 1915, No. 2. Convention between the United Kingdom and France relating to Prizes Cap­tured during the Present European War. (9.XI.14). Cd. 7816. Misc. No. 6, (1915) Correspondence between His Ma­jesty's Government and the United States Govern­ment respecting the Rights of Belligerents. Cd. 7858. Treaty Series, 191'5, No. 4. Accession of Russia to the Convention between the United Kingdom and France Controversy over Neutral Rights 185 relating to Prizes Captured during the Present Eu­ropean War. 3, 147, 154. Deutsch/and, case of the, 83. Enemy character: Of goods: Provisions of Reprisals Or­ders in Council, 103, 114, 163-165. Provisions of Trading with the Enemy (Extension of Powers) Act, 121-122, 125­ 126. Of ships: (beneficial owner­ ship) 140-146, 164. Fl-Oride, case of the, 26, 33. Fordney, Joseph W., case of the, 109-111. France: Attitude in Trent affair, 57-58. Attitude toward blockade; 104, 149-150, 159; conditional con­traband, 90; Declaration of London, 40-41, 43; the Deutschland, 83; postal cor­respondence, 25-28, 32, 34; search in port, 129; transfer of registry, 140-142. Prize regulations of 1913, 47. Genesee, case of the, 142-146. Germany: Accepts modus vivendi on food­stuffs, 103. Attitude of prize courts toward government, 132. Attitude toward armed mer­chantmen, 73-76; contraband, 39; conversion, 64, 68, 70; Declaration of London, 38; postal correspondence, 30. Prisenordnung, 38, 141. Great Britain: Attitude toward armed mer­chantmen, 64, 69, 70, 73-76; beneficial ownership, 143-146; blacklist, 121-122, 125-126; blockade, 103, 104, 148-149, 155-157, 159; conditional con­traband, 90, 95, 102; conver­sion, 62-64; Declaration of London, 36-37, 47, 159; the Deutschland, 83; postal cor­respondence, 25-27, 28, 32, .34; right of search, 95, 129­130; transfer of registry, 142; unneutral service, 57-60. Naval Prize Bill of 1911, 36-37. Precedents for diplomatic red­ress by, 119. Hague Conventions; Convention V, 19; VI, 66; VII, 62-63, 76; IX, 93; XI, 27, 30­32, 93; XII, 116; XIII, 10, 20, 62, 68, 76, 93. Index 191 Hamborn, case of the, 146. Hocking, case of the, 142-146. Hovering, 161-162, 179-181. International Telegraphic Con­vention, 20. Jay Treaty, 5, 116. Kim, case of the, and other ves­sels, 117. Leipzig, case of the, 51-52. Mails, controversy over, 25-35, 136. Mallina, case of the, 18. Maritime Rights Order in Coun­cil, 161-163. Merrion, case of the, 69. Metapan, case of the, 56, 139, 177­ 178. Misuse of neutral flag, 145-146. Neches, case of the, 114-115. Neutral commerce: Undue inter f e re n c e with, claimed by the United States, 90-91, 94, 107-111, 115, 117­123, 153-155; denied by Great Britain, 94-98, 101-102, 105, 108, 109, 111-113, 115, 122, 129-134, 156-157, 159-161. Neutral rights: British views of, 133, 134, 149, 156, 157, 162. Defined by the United States, 106; reiterated, 114, 115, 118. 119, 129, 153-155, 162, 163. Panama Canal, 17-18. Passports, 14-15. Peterhof, case of the, 154, 164. Polzeath, case of the, 146. Postal correspondence, see Mails. Prize Courts : Competence of, 98, 99-101, 104, 107, 118-119, 132, 147-148. Law administered by, ~2-94', 100-101, 130, 132, 140-142. Legality of decisions questioned by the United States, 114, 118-119, 163; upheld by Great Britain, 115, 116, 132, 133, 146, 163. Power to annul Orders in Coun­cil, 99-101. Procedure in, 96-99, 114, 118, 126-127, 130, 14 7-148. Views of Cohen on, 94; of Lord Tiverton, 93. Protesilaus, case of the, 18. Proton, case of the, 146. Radiotelegraphy, rules as to, 17­20, 181. Retaliation, 103, 107, 147, 155, 160-161. Right of Search: As to mails: Views of the Allied Govern­ments, 26-27, 28, 29, 34­35; of Hyde, 136; of the United -States, 25, 27-28, 29, 31-34. As to commerce: Views of France, 129-130; of Great Britain, 95, 98, 129­130; of Hyde, 134-135; of the United States, 91-92, 97-98, 106, 117-118. Seguranca, case of the, 109. Simla, case of the, 27n. Springbok, case of the, 156, 1591 164. Transfer of registry, 102, 138­146, 169-177. Treaty of Washington, 1871, 61­62, 116. Tremeadow, case of the, 18. United States: Attitude toward armed mer­chantmen, 65, 68. Proposals of Secretary Lan­sing, 72-73, 76. Views in 1914, 70-71; in 1916, 78-80 . . Views of Hyde, 77, 78, 81-82. Attitude toward blockade, 103­104, 106, 153-155, 158-159, 163; blacklist, 121-124; con­ditional contraband, 118; con­version, 63; Declaration of London, 37-38, 49-50; the 192 Index Deutschland, 84-85 ; enemy character, 144-145; merchant­men supplying belligerent vessels, 51-52; postal corre­spondence, 25, 27, 29, 31-33; right of search, 25-27, 32, 91­92, 97-98, 106, 117-118, 134­135; transfer of registry, 138, 169-177; transit of Canadian troops across American terri­tory, 55; unneutral service, 57-60. Naval War Code of 1900, 65. Neutrality laws, 6-9, 11-12. Neutrality policy, 5-12, 13-17. Neutrality proclamations, 5, 7, 8-11, 15, 17. Violations of neutrality of, 51­ 55. Universal Postal Union Conven­tion, 1906, 27. U nneutral service: Cases of, 54-60. Penalties for, 55-56, 106. Provisions of Declaration of London, 55-56, modified by Great Britain, 59. Vinland, case of the, 161. Wico, case of the, 108-109. Wilhelmina, case of the, 107-108,. 110. Windber, case of the, 56-58. Zamora, case of the, 99-101, 116.