EDWIN J. CLAPP
ECONOMIC ASPECTS OF THE WAR
THE WILHELMINA---A TEST CASE
Early in 1915 the question whether our merchants could send foodstuffs to Germany, when not intended for the government or for the armed forces of that country, was sharply tested in a case which merits its own corner in history. This was the case of the steamship Wilhelmina. America lost the case.
The Wilhelmina was of American registry, and was under charter to the W. T. Green Commission Company of St. Louis, a concern engaged previously to the war in exporting provisions to Germany. Noting the statement of Sir Edward Grey in his January 7 note, that Great Britain was not considering foodstuffs contraband unless destined for the government or armed forces of the enemy, the St. Louis merchants determined to take advantage of this expression in an effort toward the resumption of their trade. Accordingly they loaded on the Wilhelmina a cargo of grain, flour and provisions to the value of $200,000, and despatched the vessel from Brooklyn on January 22, with sailing papers for Hamburg and under conditions' such as to put the British policy very clearly to the test.
The goods were not consigned "to or for an agent of the enemy state," or even, recalling the wording of the August Order in Council, "to or for a merchant or other person under the control of the authorities of the enemy state," at least in any reasonable interpretation. Nor were they consigned "to order." Instead, the consignment was made to Mr. Brooking, manager of the W. T. Green Company, who sailed in advance for Hamburg to receive the cargo on arrival. The food was going to an American citizen.
There was nothing in any British Order in Council making shipments so consigned subject to seizure. Further, the cargo went forward with the endorsement of the State Department, Mr. Bryan having stated that he saw no reason for action against the vessel by His Majesty's authorities. It was evident that if Great Britain were to seize the Wilhemina, some new excuse must be found for such action.
The manner in which the British public looked upon the voyage of the Wilhelmina was apparent from the tone of British newspapers from the day the vessel sailed. A single instance, typical of many, will illustrate. On January 26 the London Morning Post discussed the case in an editorial, saying that this was another test prepared by the friends of Germany in America for the injury of British interests. The editorial proceeded:
"This is a more plausible and more insidious experiment than the Dacia, and if it is allowed, will be more injurious to the cause of the Allies.
"At present German food prices are but little, if at all, higher than British food prices, but the Allies hope that if the blockade continues, in time it will become extremely irksome for the German people to continue at war, owing to the increasing scarcity of food, and that they will desire their government to discontinue the war.
"If Americans will fairly consider it, this is the most merciful way of ending such a conflict, which otherwise may continue to rage until the manhood of Europe is destroyed.
"There is a right and wrong in this war, and the United States by their public opinion have already shown where they believe the right to lie. Will they now say that interest is more important than right, and money than justice and liberty? We cannot believe it of a nation which has the tradition and the origin of the United States."
Nothing could be plainer. The voyage of the Wilhelmina was an attempt to thwart England's starvation campaign. In view of Great Britain's fight for civilization, America should stand aside, should waive its legal rights and its commercial interests. Evidently the British press was not of the impression that their government had been allowing food for civilians to proceed to Germany, as implied in Grey's January 7 note, where he said no foodstuffs had been seized except upon presumption of destination for enemy forces. The Wilhelmina was recognized as an insidious attempt to get in motion a shipment for civilians, for the first time.
On January 25 the German authorities, on behalf of the imperial government, confiscated all supplies of grain and flour in the empire. Such action was to be followed by government distribution of these foodstuffs, with the purpose of diminishing the consumption and thereby assuring the sufficiency of the existing stock until the harvest in July. Mere appeals to the Germans to reduce their use of bread had apparently not sufficed to conserve the supply. The confiscation specifically did not affect all foods, but only those for which shortage threatened; namely, grain and flour.
This Decree was announced on the evening of January 25. It was known outside of Germany on the 26th. On the 27th the London press announced that all food in and for Germany was now subject to seizure; that it was therefore to be considered from that time as government property, and hence contraband. Therefore, London concluded, the Wilhelmina must be stopped.
To meet this situation the attorney for the W. T. Green Commission Company requested the German Ambassador at Washington to guarantee that the food on the Wilhelmina would not reach the military forces of Germany. Count von Bernstorff replied as follows:
"I, as representative of the German Government, guarantee to you that the foodstuffs will not reach the German Government, its agents or contractors, nor the military and naval forces. I will further take the necessary steps which will insure that the German Government will not make use of its right of pre-emption.
"I shall at once communicate in this matter with the State Department and advise you later."
On the following day, January 29, the German Ambassador communicated this guarantee to the State Department at Washington, on behalf of his home government.
To be sure, the original German Decree specifically stated: "The provisions of this ordinance do not apply to grain or flour imported from foreign countries." But the importer had to operate through the War Grain Company, the Central Purchasing Company, or the German community officials. This did not mean the armed forces of the government or the government's military agents. The agencies named were created to direct imported grain solely into channels of private consumption. But the matter was easily misunderstood abroad; and hence, on February 5, the German Federal Council rescinded the requirement for the importer to operate through the companies or the community, officials, and the enactment was made to read simply:
"The provisions of this ordinance do not apply to grain and flour which are imported from foreign countries."
This modification of the German Decree was made known to our government by the German Government in a note never published in full but quoted in part in ours to Great Britain of February 15.
In England the German Decree was taken generally as a confession that Germany was in desperate straits. And if the supplies of food in Germany were, in truth, running short, then the last thing that His Majesty's Government wanted was to see its "economic pressure" relaxed. The censored press despatches from London daily told of a firmer and firmer intention on Britain's part to stop the Wilhelmina. A reported offer of the American Relief Commission to buy the cargo of the Wilhelmina was hailed in London as a happy solution of "the Wilhelmina incident, which threatens to arouse the resentment of the British public." The offer of the Relief Commission was finally made, and rejected, on February 7. The president of the W. T. Green Commission Company said the food would be sold at Hamburg for the civilian population, and in no other Way.
On February 1 officials of the British Foreign Office stated to the press that they were unable to understand the value of Ambassador Bernstorff's guarantee that the Wilhelmina's cargo would not reach the German military, in view of the German Decree placing all foodstuffs under government control. They omitted the detail that imported foodstuffs were not affected by the Decree.
The German Decree was apparently the excuse England had sought for putting upon a formal basis the stoppage of food for Germany which had been practiced since the opening of the war. On February 2, Ambassador Page cabled our State Department that the British fleet had been ordered to consider grain and flour for Germany as contraband, subject to seizure and confiscation. This included the cargo of the Wilhelmina, it was added, but as a special dispensation this particular consignment, having been forwarded before the confiscation order, would be paid for. Other seizures would be without compensation.
Meantime the Wilhelmina was nearing the English Channel. On February 4 the German Government gave forth its War Zone announcement---a warning that after February 18 all British merchant vessels found in the waters around Great Britain would be torpedoed, without regard to the safety of crews or passengers. As a justification of this unprecedented method of warfare, it was declared that England was attempting to starve a nation of 70,000,000 people by means not recognized by international law. Therefore the Germans proposed to use what means they could to shut off the British food supply.
On the same February 4, the British Foreign Office issued a statement that it would stop the Wilhelmina and throw her cargo into a prize court. The statement said that under the Decree of January 25 all grain imported into Germany must pass through semi-official hands. Therefore it could be considered as destined to the government and hence contraband. (No attention was paid to Count von Bernstorff's guarantee to Washington from his government that the grain would reach only civilians.) If the cargo were seized, the British authorities said they would pay for it, and they would pay the owners of the vessel for any delay caused by the British action, Finally, the statement announced that because of Germany's intention to sink merchant vessels with their crews, England might be compelled to "adopt in retaliation more stringent measures against German trade."
Also on February 4, the German Ambassador at Washington further complicated the case by formally suggesting that the distribution of the food of the Wilhelmina should be supervised by American consular officers in Germany, who could give assurances that none of it would get into the hands of armed forces. The British Embassy intimated, according to Washington despatches, that this would not be acceptable. Even if it were assured, the Embassy said, that the imported food would reach only German civilians, that would make it possible for the military to live on the home supplies while the civilians lived on imports.
Reduced to the last extremity, the British always fell back upon the contention in one or another form, that if the Wilhelmina and such ships got through with food to Germany, this would frustrate the starvation plan.
It so happened that the Wilhelmina, a small steamer, was caught in severe gales on the North Atlantic, and on February 9 put in at Falmouth for refuge. Two clays later, the British authorities formally seized the cargo.
The owners of the goods urged thereupon that by the most extreme constructions of international law on the part of England, that country was not justified in seizing more than the grain and flour on board the Wilhelmina, for only these articles had been included in Germany's confiscation Decree. It was claimed that the ship should be free to proceed to Germany after the British had taken off the grain and flour, constituting only 15 per cent of a cargo of foodstuffs.
This contention was communicated to the British Government, in a note which our State Department sent to Britain on February 15. The note implied that the British stoppage of the cargo because of the German Decree was invalidated by the modification of that Decree, which exempted from its operation imported foodstuffs. A communication of the German Government was quoted, citing this modification and offering to allow American consular officers to supervise the distribution of such imports to German civilians. The hope was expressed that unless Britain had in its possession facts not in the hands of the United States, the Wilhelmina might be allowed to proceed.
Before the British answer to this note was forthcoming, important events occurred in parliament. On February 16, the day after our note was sent, Winston Churchill, Lord of the Admiralty, announced in the following words the forthcoming "blockade" of Germany:
"We have not yet stopped the importation of food into Germany, but the time has come to consider the situation. The Allied Governments will probably make declaration of action, the effect of which will be to bring the full pressure of the English naval power to bear on Germany. The pressure of the navy itself could decide the issue of this war."
It is amazing how thoroughly American public opinion was misinformed as to the facts of the case, and how generally the public accepted as truth the absurd statement of Churchill that "we have not yet stopped the importation of food into Germany but the time has come to consider the situation." And no one seemed to grasp the fact that foods imported into Germany were not lawfully subject to British seizure.
Even in so well-informed a paper as the New York Evening Post there appeared on February 18 an editorial which ignored the basic facts that England never had let food go by, and that the German Decree excluded imported food. The Post said:
"The historic British position has been that foodstuffs not destined for use of the army must be allowed to pass. That, in general, has been the practice of the English cruisers and courts during the early months of this war. But now that Germany has abolished all private buying and selling of foodstuffs within the empire, the old distinctions are obliterated. The presumption today is that all foodstuffs entering Germany are for military use, or may be immediately requisitioned for military use."
On February, 19, Sir Edward Grey answered our note regarding the Wilhelmina. He said that the steamer had been seized after the German Decree of January 25. He added that the February 6 modification excepting imported foodstuffs was not known to Britain at the time of the Wilhelmina seizure, and declared that this modification had just become known. A prize court must pass on the question whether the modification changed the status of the vessel.
However, be continued, there were other grounds for detaining the Wilhelmina. The Germans had justified the bombarding of Hartlepool and Scarborough on the ground that these placed were fortified, or were serving as bases for military operations. Therefore England might stop foodstuffs for Hamburg on the ground that Hamburg was fortified and that food so destined was, according to the Declaration of London, presumably destined to military forces. "Hamburg . . . is in part protected by fortifications at the mouth of the Elbe" and is "a fortified town and a base of operations and supply."
The owners of the Wilhelmina's cargo, the note observed, would have a right to establish their innocence, if they could, in a British prize court. It was suggested that diplomatic action by the United States be avoided until full advantage had been taken of the appeal to the courts.
It was protested further that Britain had not yet interfered with food moving to Germany:
"His Majesty's Government have not, so far, declared foodstuffs to be absolute contraband. They have not interfered with any neutral vessels on account of their carrying foodstuffs, except on the basis of such foodstuffs being liable to capture if destined for the enemy's forces or government."
Finally, the British note averred that Germany had violated international law by bombarding British coast towns, laying mines, mistreating Belgians and Frenchmen and torpedoing British merchant vessels. Therefore Britain could not be expected to remain bound by old laws. Neutrals would be expected to stand aside while England declared food contraband, or adopted such other measures of retaliation as should be thought fitting.
It is impossible to pass over this note without commenting upon certain of its features. For example, Sir Edward Grey informed us that England did not know of the modification of the German Decree when the Wilhelmina was seized on February 9. That modification passed the Bundesrat on February 6. The news was cabled to the United States via London. At the head of this despatch to American papers, published February 8, we read, "Berlin, February 6; via London, February 7." This means that on February 7 this important news passed through the hands of the British censor. That it was not known to the Foreign Office on February 9 was, to say the least, extraordinary.
The fortifications by which Hamburg is "protected" are at the mouth of the Elbe, over seventy-five miles from the port. Hamburg is fortified about to the same extent as Albany is fortified by the protections about New York City, and on such a theory, Peekskill, Tarrytown and Yonkers are military establishments far more perilous.
The British statement that it "might be obliged" to consider interfering with food moving to Germany needs no comment.
It is necessary to say a word about Britain's contention that it should have a free hand because Germany was overstepping international morality in its manner of making war on England. That of course is no excuse for England taking action against Germany which violates the rights of neutrals. When Germany's novel conception of international law infringes upon our rights, we protest and take care of ourselves. We do not invite or allow England to defend us against Germany's aggressions any more than we allow Germany to defend us against England's aggressions. Once admit this altruistic policy of reprisals by belligerents and all our neutral rights vanish.
It was evident, however, from the developments in the Wilhelmina case, that no criticisms were likely to change the course of events or to alter the determined policy of His Majesty's Government.
On February 27, the writ was issued putting the Wilhelmina's cargo into the prize court. The attorneys for the cargo, who were in London, hoped for a speedy trial. They expected that the vessel would get to Hamburg, for the "blockade" of Germany was not announced until March 1, three weeks after the Wilhelmina was detained. On March 19, and again on March 23, the American attorneys in New York and London protested against the delay in trying the case in the prize court.
On March 26 the British Solicitor of the Treasury suggested to the attorney of the vessel that in view of the loss of $1,000 per day as a result of the detention, the cargo should be unloaded, and that such part of the merchandise as was deteriorating should be sold through the prize court. The suggestion was refused on the ground that the parties who had chartered the vessel preferred to keep the cargo aboard, ready to sail for Hamburg when the prize court declared it free.
The Wilhelmina case was finally set for March 31. It was evident, however, that the English ministry did not want the case to come before the prize court; and the reason for their attitude becomes clear after a little reflection. As shown in the previous chapter, Great Britain as a neutral has constantly denied that foodstuffs destined for civilians in a belligerent country are seizable as contraband. Any action of a prize court condemning the cargo of the Wilhelmina would have been an absolute reversal of this attitude by her judiciary and would have promised a very possible future embarrassment. The vessel could not be held on any charge of attempted blockade-running, for it had sailed and had been detained before the blockade was declared. Yet it was not safe to let America get a food ship through to Germany. More might follow if such a precedent were established.
The problem was solved by the familiar British method of a new Order in Council, which, if it cannot be called a substitute for international law, served at least to give a legal formula to what was done. This Order was passed on March 23, but was not divulged until the trial, on March 31. Then, to the surprise of the American attorneys, the crown lawyers produced an Order in Council which authorized the crown to requisition any neutral ship and cargo which for any reason whatever had been brought before the prize court. The new Order read:
"Where it is made to appear to the judge, on the application of the proper officers of the court, that it is desired to requisition on behalf of His Majesty a ship in respect of which no final decree of condemnation has been made, he shall order that the ship shall be appraised, and that, upon an undertaking being given in accordance with rule 5 of this Order, the ship shall be released and delivered to the crown."
The counsel for the Wilhelmina's cargo were taken aback, and asked for a continuation of the case until April 13, so that they could revise their argument to meet the new law that was to apply. They found there was no argument. The power of Britain, under her self-made international law, to requisition the cargo of the Wilhelmina, made a trial of that cargo's right to proceed to Germany practically out of the question.
The American shippers were therefore compelled to submit to the purchase of the goods by the British government. The offer was made by Great Britain in a note to Ambassador Page, published April 13, to be transmitted to the W. T. Green Company.
The British note stated that the sailing of the Wilhelmina was designed as a test case to see whether American food could be sent to Germany. Since the Blockade Order, however, the case was academic. That Order would prevent any more food being sent, no matter how the case of the Wilhelmina might be decided. Hence there was no longer any object in continuing the proceedings. The British Government therefore offered to buy the cargo at Hamburg prices, the compensation to be determined by a referee appointed by Sir Edward Grey and Ambassador Page. As to the vessel itself, Great Britain offered to compensate for loss due to the detention so far as that was caused by the action of the British authorities; but it had been contended by London from the first that the ship might have discharged cargo and proceeded immediately after February 9.
Lord Mersey was appointed referee. Early in May, London despatches reported that he had decreed $430,000 as a settlement for the Wilhelmina case. The London Daily Mail quoted the Wilhelmina owners as "highly pleased with the handsome and generous settlement made by the government for the steamship's cargo." The W. T. Green Commission Company, through their lawyers, deny any such satisfaction. The profit on that one $200,000 cargo was large, but in their attempt to re-establish their German business they had failed. Had they succeeded, they would have made a large profit not on one, but on a hundred cargoes.
Neither they nor the country was satisfied by this single "handsome and generous settlement" for the enforced surrender of our neutral rights and interests.
Shortly before the arrival of the British Government's note of February 10, containing the final reply to our protest of December 26, the situation with respect to our export trade, and especially as to the question of foodstuffs for Germany, had been given a new phase by the appearance of Germany's War Zone announcement. The British February 10 note was a communication of no epoch-making brilliancy. Its most striking feature was the delicate irony, already remarked, with which Sir Edward Grey informed the American public that the Order in Council of October 29 was an amelioration of the severe conditions of the August 20 Order.
The authorities at London, it appeared in this February note, were considering whether they should not regard all food for Germany as absolute contraband,(4) because of the alleged identity of the civil and military population of that country. And in view of the recent War Zone proclamation from Berlin, it was intimated that still stricter measures might be necessary to protect the interests of Great Britain. Thus the note furnished a record of the ending of one episode and the beginning of another, and for purely historical purposes it had a certain value; but as to meeting the causes of the complaint in our December note, or the question of their removal, it contributed nothing.
Germany's War Zone Decree, growing out of the actions of Great Britain in obstructing food supplies, had been issued by the German Admiralty on February 4. It was a warning addressed to the commercial world, stating that from February 18---two weeks after the issuance of the warning---the waters around Great Britain, including the whole of the English Channel, would be a danger zone. In this area, it was announced, all British merchant vessels caught by the German submarines would be destroyed without obligation respecting the safety of crews or passengers, and neutral vessels would be in danger. In explanation of the latter portion of the Decree, reference was made to a secret order of the British Admiralty authorizing the vessels of that country to use neutral flags to deceive German submarines. In a separate statement the German Chancellor declared that neutrals were not protecting their rights to trade with Germany, and that the Germans could not sit still and die of famine but must retaliate with the same weapons that England used.
The danger to our interests involved in this note was quickly recognized at Washington. Our answer was dated February 10. It reminded the Germans that the prerogatives of belligerent war vessels, with respect to neutral shipping, were limited to the right of visit and search. Our government denied that the United States had been unneutral in failing to protest against violations of its neutral rights. We denied that the British misuse of our flag cast a suspicion on all neutral shipping warranting its destruction. Should a German commander destroy on the high seas an American vessel and the lives of American citizens, it was added, we should hold Germany to a strict accountability. Finally, we stated for Berlin's information that we had made representations to. Britain against using our flag indiscriminately to protect its vessels.
Regarding our brief correspondence with England as to the use of the American flag on British vessels, it may be noted merely that Great Britain's reply to our communication was not responsive. The same must be said of the German reply of February 16 to our protest against the War Zone Decree. Germany declared that she had abided by the Declaration of London, as suggested by America early in the war, and had even let food ships go from Denmark to England, though her warships could have stopped such trade any time. In the meantime England had torn up the Declaration of London and was trying to starve her opponent. Neutrals had protested, Germany said, but without avail.
Since neutrals---the note continued---had merely protested, and had taken no action when England was abridging their right to trade with Germany, it was now expected that they would show no less tolerance to Germany. It was stated that both mines and submarines would make the War Zone unsafe. The best thing for neutrals would be to avoid the Zone; or for neutral merchant ships to be convoyed by neutral war vessels. Danger to neutral merchant vessels was doubled by the British insistence on the right to adopt neutral flags, Germany declared.
We were given, further, the well-worn assurance that Germany was fighting for her life. Finally---the hopeful thing about the note---Germany implied that she would give up her submarine warfare if England would abandon her unlawful attempt at starvation, and would allow foodstuffs and raw materials to move into Germany without interference. On the following day, February 17, the German Embassy at Washington, as already noted in connection with the Wilhelmina case, made the statement that the German Government would consent to have American consular officers supervise the distribution to civilians of foodstuffs imported from America.
The American Government believed it saw in the German proposal the basis for a successful negotiation with both belligerents with regard to the rights of neutrals. It saw the possibility of recalling the belligerents to the limits of international law, as that law was known before the opening of the war. We had suffered through the British interference with our exports to Germany and adjacent neutrals. Still greater loss threatened us from the blockade that Britain was obviously about to declare. We had reason to fear serious consequences from the prospective submarine warfare of Germany. It was to the interest of all neutrals to have these evils averted, along with other practices, in violation of international law, which had grown up in the course of the struggle, such as the laying of floating mines on the high seas.
Therefore, we sent Germany and England an identical note, dated February 20, containing certain suggestions. Both nations were to cease the use of all mines on the high seas. Floating mines were to be discontinued. Anchored contact mines, used defensively, and not out beyond the cannon range of harbors, were to be constructed with the stamp of the government that made them and were to be so constructed as to be harmless if they went adrift.
Submarines were to be used against merchant ships only for the purpose of exercising the right to visit and search.
Great Britain was to desist from its interference with the movement of foodstuffs into Germany. Foodstuffs to Germany from the United States or other neutrals were to be consigned to agencies designated by the United States Government, and the German Government was to undertake not to requisition such supplies.
Nearly a month passed before this note was answered. The German answer was dated March 1. It accepted the American proposition in principle and in most of its details. Germany agreed to cease the use of floating mines, and to construct anchored mines only as indicated, though not consenting to forego wholly the use of anchored mines for offensive purposes. Submarines were to be used in accordance with the recognized rules of international law. But these concessions were dependent upon reciprocal conduct by Great Britain, the note apparently demanding that Germany should be allowed to receive not only foodstuffs but also other goods on the free list and conditional contraband list of the Declaration of London. Moreover, British merchant vessels must engage not to go armed or to resist search by the submarines, and must cease the deceptive use of neutral flags.
In contrast to this attitude, Great Britain, on March 15---after the announcement of that country's blockade policy---sent us a flat rejection of our proposal. First, the British note stated that
"The reply of the German Government . . . has been published and it is not understood that the German Government is prepared to abandon the practice of sinking British merchant vessels by submarines. . . . "
The note then referred to the doubts expressed by Germany of the feasibility of foregoing the use of anchored mines on the high seas for offensive purposes. It was denied that so far the British forces, "either naval or military, can have laid to their charge any improper proceedings."
Then followed a recital of alleged German illegal acts in the war: the treatment of civilians in Belgium and France and of British prisoners in Germany; the laying of mines on the high seas; the sinking of food vessels like the Frye, destined for Britain; the bombardment from the sea of British coast towns and the dropping of bombs from air craft on unfortified places; and the sinking of British merchant vessels by torpedoes without warning.
The British note then stated that considerations of humanity regarding food for the civilian population of a belligerent were inoperative when that belligerent was blockaded. Apart from Great Britain's rights due to the blockade, it continued, such German authorities as Bismarck and Caprivi had stated, in contradiction to the British and American attitude, that pressure on a civil population was a proper means to. bring war to an end.
Moreover, there was a blockade, the note added, "effectively controlling by cruiser 'cordon' all passage to and from Germany by sea."
Again a few words of comment. Sir Edward Grey held that the published German note did not propose to stop the sinking of British merchant vessels by submarines. What the German note had said, six days before---and Sir Edward Grey could not have been ignorant of it---was this:
"The German Government would undertake not to use their submarines to attack mercantile (vessels) of any flag, except when necessary to enforce the right of visit and search. Should the enemy nationality of the vessel or the presence of contraband be ascertained, the submarine would proceed in accordance with the general rules of international law."
As for mines on the high seas, both belligerents had used them, and America had not protested. With one exception Germany in her note offered to forego using such mines, and that exception might have been eliminated by negotiation.
As for the atrocity charges, they were matched by countercharges. But whatever their merits, they were entirely beside the point. And further, we had no interest in what Bismarck wrote to the Kiel Chamber of Commerce or what Caprivi said in the Reichstag. Our conception of the rights of the civilian population of a belligerent to buy food from us coincided with the view that Britain had enforced when she was a neutral, with our own previous position, and with the view of civilized nations as set down in the Declaration of London. As to the blockade, the situation to which Great Britain applied that term was not a blockade in any proper conception, and everyone knew that the so-called cordon was not "controlling all passage to and from Germany by sea." All this was made clear to Britain in our note of March 30.
The blockade had been originated two weeks before Great Britain delivered this answer to our note. It was not originally called a blockade, but a measure to stop all movement of goods to or from Germany, or virtually an application of the law of contraband to all forms of merchandise, not only to goods moving to Germany but also to those leaving Germany. By a coincidence the British announcement of this measure bore the same date---March 1---as the German acceptance of our suggestion made jointly to the belligerents to modify their war on neutral trade.
So on March 1 the blockade came into sight. On that date Sir Cecil Spring-Rice handed our Secretary of State a memorandum referring to the German submarine warfare, and announcing Great Britain's proposal for retaliation as follows:
"Her (Germany's) opponents are therefore driven to frame retaliatory measures in order in their turn to prevent commodities of any kind from reaching or leaving Germany. The British and French Governments will therefore hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership and origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation."
In the memorandum the word blockade was not used. On March 5 our State Department sent an answer to. the communication. Our answer was less a protest than an inquiry as to the meaning of Spring-Rice's note. It was urged that Great Britain could not lawfully detain all vessels destined for Germany, except in the case of a blockade. If there was none, neutral ships should not be detained unless carrying contraband. We asked the British authorities whether they considered that a blockade existed or not. If there was none, how could Great Britain detain any goods from Germany to us on neutral ships? We admitted that the old-time "close-in" blockade might be impracticable by reason of the enemy's use of submarines and air craft but held that Great Britain should state some limit to the radius of blockading activity and not, for example, seize ships with German cargo when nearing New York.
London answered in a note of March 15, the same date on which she rejected our proposition that both she and Germany return to international law. Our attention was directed to the March 11 Order in Council, enclosed with the March 15 note, this Order giving effect to the blockade policy announced in the Spring-Rice notification on March 1. The note further explained that Britain would interfere with no cargoes outside of European and Mediterranean waters. It was added that there would be no confiscating of neutral cargoes for trying to pass the blockade, out of consideration for neutrals.(5)
As the March 11 Order in Council provided the substitute for international law under which neutral countries have carried on up to the time of this writing a sort of business with each other, and under which they are stopped from trading with Germany, the document must be considered with some care.
It began by stating its purpose as a reprisal on the part of Britain and its Allies. No vessels sailing to Germany after the first of March, it declared, would be allowed to proceed to a German port. Unless such a vessel received a pass to proceed to some neutral or Allied port, the cargo must be discharged in a British port and turned over to the marshal of the prize court. If the goods were not contraband of war, and were not requisitioned for the use of His Majesty, they should be restored by the prize court, on such terms as were deemed just, to the persons concerned.
Any vessel sailing after March I for a neutral European port, having aboard goods of German ownership or destination, might be required to discharge such goods in a British or Allied port. After being discharged in a British port, if neither contraband nor requisitioned by His Majesty's Government, they should "be restored by order of the court, upon such terms as the court may in the circumstances deem to be just, to the person entitled thereto."
The Order then specified how a neutral might proceed to get justice in the British prize court. It stated that nothing which it contained should be deemed to affect the liability of any vessel or goods "to capture or condemnation independently of this Order." That is, the Order in Council of October 29 was not repealed.
Finally, the last and most novel paragraph of the British Order was a bid for the support of neutral nations in facilitating the measures thus taken against Germany. This paragraph offered to relax the interference of Britain with commerce between America and European neutrals, if the European neutrals would persuade or force the steamship lines under their flags not to carry goods of German ownership or origin. The provision read as follows:
"Nothing in this Order shall prevent the relaxation of the provisions of this Order in respect of the merchant vessels of any country which declares that no commerce intended for or originating in Germany or belonging to German subjects shall enjoy the protection of its flag."
Referring to this March 11 Order in Council, the British note which accompanied it reassured our Ambassador in these words:
"I apprehend that the perplexities to which your Excellency refers will for the most part be dissipated by the perusal of this document."
Far from "dissipating" American perplexities, the March Order in Council, like those that had gone before, infinitely increased them.
Our protest was voiced in our note to Britain of March 30. We said in this communication that the Order in Council of March 11 would constitute a practical assertion of unlimited belligerent rights over neutral commerce, and an almost unqualified denial of sovereign rights of nations at peace. Belligerent rights over neutral commerce, we urged, are limited. The belligerent has the right to visit and search these vessels, and to capture and condemn them if it is found that they are on unneutral service or carrying contraband of war. The belligerent may blockade the enemy's ports and coast, and capture and condemn any vessel trying to break the blockade. It was even conceded that a belligerent may take into its ports for examination suspected vessels engaged in trade between neutrals. But this, it was claimed, is the end of the rights of belligerents over neutral commerce.
Moreover, even though a blockade should exist, all but absolute contraband shipments, it was maintained, might be freely transported from the United States to Germany, through neutral countries. For the United States to forego this right would be inconsistent with the solemn obligations of our government, and would be assuming an attitude of unneutrality towards Germany.
We protested against the announced blockade as including not only all the coast and ports of Germany, but also a great number of neutral ports. No matter if the "close" blockade could no longer be maintained, international law could still be followed. Ships should be allowed free passage through the blockading cordon, if destined to neutral ports. Absolute freedom from interference should be accorded to all trade from neutral ports to America, and to all trade from America to neutral ports excepting in absolute contraband in transit to the enemy.
We denied that, whatever might be the illegal acts of Germany in the present war, there was any excuse for similar action on Great Britain's part, so far as such action affected neutral rights.
Our note called attention to the fact that Scandinavian and Danish ports could trade over the high seas with German Baltic ports, access to which Great Britain could not bar. We pointed out the serious interruption of American trade that might result from the enforcement of the Order in Council. We counted on Great Britain to modify its severity, and we reserved the right to exact reparation for every act of that country in contravention of international law.
The issue between London and Washington was thus sharply drawn. We contended for the freedom of commerce, for equal sovereignty with Britain on the high seas with the exception of certain rights which a belligerent might exercise under international law.
Great Britain delayed until July 23 its answer to the March 30 note, and then made no concession to our demands.
This July 23 communication contended that the British blockade measures were reasonable, necessary and "adaptations" of the old principles of blockade. In view of the shocking methods of German warfare, it continued, the Allies felt the obligation to take every means in their power to overcome their common enemy. Further, the British understanding of our March 30 note was that we admitted the necessity of Britain taking all steps to cripple the enemy's trade, though we criticised the methods employed.
It was insisted that the blockade would be ineffective if not extended to enemy commerce moving via neutral ports. It was denied that the United States could expect Britain to make such a modification of its blockade practices. The Bermuda cases of Civil War time (reviewed in Chapter IX) were cited as illustrating an extensive application of the law of blockade by the United States itself.(6) It was insisted, that England had the right to extend the law of blockade to fit the peculiar situation of Germany, surrounded and served as it was by neutral ports. The sole obligation of Britain in the matter was said to be the obligation not to molest bona fide neutral trade. The reason why the British action was not directly supported by written authority was, it was declared, because it was the business of writers on international law to formulate existing rules and not suggest adaptations to meet altered circumstances.
The note insisted that the British adaptations of old rules were in accordance with the general principles of law and that "unnecessary injury to neutrals" was being avoided. It was asserted that our March 30 note exaggerated the degree of British interference with our trade with neutrals. It was denied that there are "certain now clearly determined rights" of belligerents which belligerents may not overstep. These rights were stated to have been variously exercised in the past. The method of exercising the right of blockade, the note went on, might vary with the circumstances of the case. The right itself was by effective means to shut off the commerce of an enemy. So with the principle of contraband and its applications, which must change to meet conditions.
As for the reminder in the March 30 note that according to the Declaration of Paris "free ships make free goods," the British reply said that England was interfering with goods because of German destination or origin, not because of German ownership (which according to the Declaration of Paris was insufficient to justify seizure).
His Majesty's Government then expressed its satisfaction that the measures being enforced had had no detrimental effect on the commerce of the United States.
"Figures of recent months show that the increased opportunities afforded by the war for American commerce have more than compensated for the loss of the German and Austrian markets."
The note was a clear rejection of all our demands. A few of its points call for comment. No shocking methods of German warfare are a reason for a belligerent abridging the clear trade rights of neutrals. As for our use of the principle of continuous voyage in the Bermuda cases, we did not invent the principle but took it over from British practice. Our Supreme Court in the Matamoros cases specifically halted us from such a distortion of the principle as Britain now makes: namely, the blockading of a neutral port to prevent even non-contraband from moving overland to the enemy.
The British plea of necessity and altered circumstances sounds like the German justification of the terrors of their submarine warfare, or of their march through Belgium. The reference to the flourishing condition of our export trade did not impress us. The total figures of our exports were indeed large, but the presence of a large volume of mushroom trade like war orders did not compensate for the enormous loss sustained by such great interests as cotton. Above all, large exports to the Allies did not soothe our feeling that the principle of neutrality was being violated when we supplied the Allies and yet allowed them unlawfully to prevent us from trading with the Central Empires.
SOME EFFECTS AND ASPECTS OF THE BLOCKADE
Since the blockade was instituted, there has been a continuous series of seizures, detentions, confiscations or purchases. To further "legalize" its actions the British Government adopted on March 23 a new development in "international" law---as usual an Order in Council---already described in connection with the Wilhelmina case. This Order provided that the cargo of any neutral ship in a British port, which had not yet been condemned, might be requisitioned. Any vessel bound from the United States to any port in Europe might be brought into a British harbor in accordance with the terms of the March 11 or October 29 Orders in Council. If Great Britain could find no ground for condemning a cargo from the United States to a neutral country, it could now purchase that cargo and prevent it from reaching its destination.
After March 30 all seizures by the British Admiralty of neutral vessels sailing from America for neutral ports were in defiance of the attitude of our government, excepting as the seizures were made for the purpose of discovering absolute contraband for Germany whose presence might be justly suspected.
A few instances will illustrate the policy of detention. On March 30 the Danish steamer Louisiana left New York for Copenhagen. On April 16 she was taken to Kirkwall. On April 26 she was ordered to proceed to Hull, where the foodstuffs in her cargo were to be passed on by a prize court. On March 24 the Lapland sailed for Copenhagen. On April 9 she was seized and taken to Kirkwall; on April 14 she was transferred to Barrow, where her provisions were unloaded and thrown into court.
It is recalled that five ships of the American Gans Steamship Company were detained in November, and after many adventures succeeded finally in getting their case set for June 7. By the middle of May twelve other steamers, with provisions for Scandinavia to the value of $11,000,000, lay in British ports. All the expenses of delay rested upon American packers. Those in this country who knew the facts were indignant.
We have already reviewed the April 13 proceedings in the British prize court regarding the detained meat cargoes. Though they were detained in November, the British Government was not ready to go on with the cases in April. The scandal of those proceedings reached this country in the letter correspondence of the Associated Press, though the British censors prevented cable news of it from crossing the Atlantic.
In May the British Government was disturbed at the growing discontent in America because of the detention policy, and also because Mr. Urion, who had been in England representing the packers and who had failed to get satisfactory action, was departing for America to see what could be done in Washington. With the double purpose of discounting what Mr. Urion might say and forestalling an American note on detention, on May 21 the British Foreign Office issued a statement to the American press correspondents in London, which was promptly cabled to this country. The cabled account reached the United States two days before Mr. Urion did.
The British statement began by saying that only three American-owned ships were detained in England. The first of these was the Joseph W. Fordney, captured off the coast of Norway. This vessel was detained, it was stated, because she apparently tried to evade the patrols of His Majesty's Government. It was declared that the consignments of the Joseph W. Fordney were addressed to a person in Sweden who was suspected by the British Government of supplying food to Germany.
It was then stated that of thirty-six detained ships with American cargoes aboard, twenty-three had cotton cargoes. The announcement said that none of the cargoes had been stopped excepting when destined directly to Germany, or when there was suspicion that the cotton was moving to Germany via a neutral country. "It was never suggested," the author of the statement continued, "that vessels or cargoes with an enemy destination should be allowed to proceed."
With regard to provisions, Great Britain, it appeared from this British statement, had been carrying on negotiations with American packers for the purpose of getting them to limit their shipments into neutral European countries to the amounts actually required in those countries for home consumption. It was added, however, that the packers made their acceptance of these terms conditional upon the purchase by the British Government of the detained Scandinavian cargoes, at the prices for which they would have sold in Scandinavia. The demand was considered exorbitant. Therefore it was proposed to send these cases through the prize court.
The familiar British argument was then adduced, that according to trade statistics America could not be suffering in the matter of its exports of foodstuffs. It was stated that in February, 1915, our exports to European neutrals increased more than our exports to Germany and Austria decreased, and note was taken especially of a large increase in the export of lard and bacon to Scandinavian and Dutch ports, the intimation being that some of this merchandise was reaching Germany.
In all British procedure regarding us there is nothing more annoying than the apparent assumption that we can be silenced by the money argument. It is the argument that appeals to those who have no principles. But our whole contention in the foodstuffs matter is a question of principle. That was the basis of our March 30 note. Moreover, our March 30 note insisted on the right without hindrance to send foodstuffs, provisions, into Germany via Scandinavia. Therefore bow were we to be influenced by an argument that the large quantities of lard moving to Scandinavia caused suspicion that lard might be trickling through to Germany? We had expressly denied that this was cause for lawful suspicion or detention.
After this utterance of the British Foreign Office, the packers promptly explained their side of the matter. The British Government, they said, wanted the provisions auctioned in England and the proceeds handed to the shippers. The latter objected to this. First, the provisions were packed for the Scandinavian market, not the British. This meant, for example, that the bacon contained far more fat than England would wish for. To sell Scandinavian provisions in the British open market would mean certain loss to the American packers, under the best conditions. The dumping of $11,000,000 of meat products on any market would depress its prices to abnormal levels. The packers thought that Britain should pay them the contract price of the cargoes.
Surely Great Britain could not have been counting on a supposed American sentiment against the Chicago packers, which was expected to influence this country against any intervention on their behalf. This would explain the difference in treatment afforded by Great Britain with reference to cotton and to cargoes of provisions destined for European neutrals. England promised to purchase cotton cargoes at the price contracted for in Europe, while with regard to provisions this treatment was refused. But the British Government must have recognized that, after all, our packers are the selling agents abroad for the meat products of American farms.
On May 24, representatives of the Chicago packers met in Washington. Their agent had returned from London with the story of his months of fruitless effort to get provision ships through the prize court. On the evening of the 24th they met the Secretary of State, and a meeting was arranged for the following day between representatives of the meat men, of the State Department and of the British Embassy.
This meeting, however, did not solve the problem. A public statement was prepared, but the packers decided not to issue it. So far as we have information of the May 25 proceedings, the British representatives would not consent to the purchase of the provisions by their government at the Scandinavian contract prices, while the packers would not consent to limit their exports of provisions to Scandinavia to the amounts which Britain deemed normal. However, a tentative agreement was reached regarding future shipments. The packers consented to notify British officials in this country a reasonable time before they shipped their goods. The British were to be given a fair opportunity to ascertain the bona fide neutral destination of these shipments. This being ascertained, the British officials here were to certify the shipments, and they were to be free of detention. But the British home government never accepted this arrangement.
By the month of July, 1915, there were $14,000,000 of provisions for neutral Europe held up in England. Their cases in the prize court had been repeatedly postponed at the request of the British Attorney General. Settlement looked as remote as in November, 1914. Since the Washington conference in May, the British Government had made another unacceptable proposition to the packers; namely, the government offered to withdraw the cases if the goods would be sold in England and if the packers would guarantee the British Government both against claims for detention of the ships and claims on the part of neutral European buyers who had never received goods which they had paid for.
Therefore on July 14, 1915, representatives of the packers again called on the State Department at Washington. On July 16 the long postponed hearing of the provisions cases was to be resumed in the London prize court. Both the April 13 hearing and later events gave clear indication that the prize court would treat the cargoes under the Orders in Council, in disregard of what we considered our rights under international law. So on July 15 our government sent the so-called "caveat" note to England, intended partly for the information of the prize court.
In view of the difference of opinion apparently existing between England and America regarding the principles of international law governing prize court procedure, Ambassador Page was asked to inform England that we should recognize no action of its prize courts proceeding under British municipal enactments (Orders in Council) and not under the recognized principles of international law.
The answer to this warning came on July 31. The British Government declared itself unaware of any differences between America and England as to the principles of law applicable to prize courts. It was asserted that in both countries these courts were subject to the instruction of their sovereign and, in the absence of such instruction, to the general rules of international law. A decision of Lord Stowell was cited stating that there is no inconsistency in the duty of the court to enforce at the same time the King's Orders in Council and the established rules of law, because the Orders are never in conflict with that law. The judge said he could not "without extreme indecency" contemplate or discuss his course in the impossible emergency that a conflict between the old and the proposed law should arise.
It was pointed out that United States citizens, if dissatisfied with the decision of a British prize court, might appeal to His Majesty's Council. If retrial were there denied, recourse might be had to an international tribunal. The hope was expressed that this note might relieve the misapprehensions under which the American Government seemed to be laboring with regard to the principles of law applied in British prize courts.
At present the packers will sell to neutral Europe only on terms of cash before shipment. The buyer must take the risk of British detention and perhaps confiscation. It is a risk no one dares to assume.
No regular steamship line to Scandinavia will accept meat products unless certified as to Scandinavian destination by a representative in America of the Scandinavian country, and also by a British consul.(7)
It should be noted also that the British notification on March 1, that shipments to and from Germany would be seized, resulted at once in a modification of insurance contracts---even those of our own Government War Risk Insurance Bureau---declaring the insurance void in the case of goods proving to be of German destination, ownership or origin; and insurance on such goods is still unavailable.
With respect to the consular certificates demanded on meat shipments to neutral countries, it must be observed that these certificates, with the further evidence even of the seal of Great Britain placed by a British consul on the hatches of vessels, are regarded by the English naval officers only as collateral evidence; they do not exempt from search. Moreover, British pressure has forced Scandinavian consignees to give the most stringent guarantees as to the home consumption of American shipments, before these shipments, may be delivered at the Scandinavian port.
Denmark, for example, has two lines from the United States: the Interocean Transportation Company and Det Forenede Dampskibs Selskab (the Scandinavian-American Line) .
The Interocean makes the American shipper attach to his bill of lading a sworn affidavit to the effect that his statement of the merchandise shipped is true, and that it has positively no other destination than the named consignee. The Scandinavian-American Line has the following in its bill of lading, printed in red:
"Consignees of the within goods are under the obligation to furnish Det Forenede Dampskibs Selskab at Copenhagen promptly and on demand a written declaration that the within goods are for consumption in country of destination shown in this bill of lading, and will not be re-exported. A failure to provide such a declaration gives the shipowner the right to withhold delivery of the goods or discharge them at any place, whereupon each and every liability of the shipowner shall cease."
Yet this is not the end. Britain has forced the Danish lines to deliver only to those Danish consignees who submit to having their books examined and approved by an accountant appointed by a British official in Denmark. This accountant is to be paid by the Danish merchant. His purpose is to see where the goods of the merchant go. Before the merchant gets American goods from the steamer he must deposit in a bank money equal to the value of the goods. This money is forfeited to the British consulate if the merchant fails to see that the accountant certifies the. disposition of the shipment.
The official British ruling on this point, enforced by the steamship lines, is of interest. The merchant, it is ordered, must agree to the appointment by the British consulate of a chartered accountant
"to examine books and business in order to satisfy itself (the consulate) as to the actual disposal of the consignment; and deposit of a bank guarantee of full value of the consignment, to be forfeited to His Majesty's consulate in case of non-fulfillment of declaration. Expenses of chartered accountant to be borne by the company."
There is only one way out of this labyrinth into which our legitimate commerce has been forced to wander. No one but the United States Government knows the way. No European neutral is strong enough to resist whatever use Britain may choose to make of her sea power, for every European neutral is dependent upon imports of our food which must pass by British warships. No European neutral has said that it would resist Britain or dared to say it. We have dared to say this. In our March 30 note we have declared as subversive of international law interference with our commerce with neutrals; and we have said we cannot stop shipping food to Germany via neutrals without violating the neutrality we choose to observe.
This matter of the right to ship food and other non-contraband to Germany is the crux of the whole situation. Once insist upon that and the whole structure of interference with our neutral commerce tumbles like a house of cards. Once admit, even tacitly, the right to-interfere with food to Germany and the whole British structure of interference is the logical law of the sea.
If Britain may lawfully stop our food for Germany via neutrals, it may, if it can, force those neutrals to place export embargoes on the food for Germany.
If food from the United States may not go through Denmark to Germany, it is virtually contraband.
Then Britain cannot be blamed for detaining, searching and annoying our shipments to Denmark; for they then carry contraband and by law Britain may use every means to prevent contraband from moving into Germany. To prevent the losses to steamers due to such detentions, steamship lines are bound to protect themselves against the possibility of carrying shipments that will be viewed suspiciously by Britain. In order to be allowed to get goods, Scandinavian merchants naturally submit to any procedure that will make them personae gratae to Britain. In order to be allowed to ship goods, American exporters naturally turn to His Majesty's Government for guidance as to the conditions under which they may ship to neutral countries.
For many reasons the United States should act. It should force Great Britain to allow our foodstuffs to reach Germany, and thus remove the intolerable suspicion that adheres to our shipments to European neutrals. Great material interests are involved. The genuineness of our neutrality is at stake. And apart from the questions of neutrality and interest in the present crisis, we must remember the constant menace in the future of such precedents as Great Britain has sought to establish, all tending toward the one conclusion that the nation dominant in sea power may adopt in restraint of commerce any measure it sees fit.
It is perhaps worth while to picture a situation where, with sea power differently distributed and other belligerents engaged, the latent danger of the precedent now being established would come to light.
Suppose in a future war that Japan's fleet rules the high seas and that Japan is at war with England. Japan decides to starve England, since that is simpler and less strenuous than defeating England by military force. Japan therefore declares a blockade of England. Its blockading cordon, however, because of the efficiency of the British submarines, is not able to invest the British ports, operate around the British Isles or even hold the North Sea. Great Britain undisturbed trades oversea in that direction. However, the Japanese squadrons, a thousand miles off the British coast or even across the seas, intercept Argentine grain and meat as it leaves Buenos Ayres. Japanese ships stop and confiscate Australian mutton and Indian wheat, long before they reach England.
These ships also hold up and appropriate all American exports of wheat, flour and provisions, on their way to England across the Atlantic Ocean. They stop not only the exports destined for England but also those destined for the rest of Europe, on the ground that they might in some way get to England. All during these hold-ups of American commerce, Russian grain would move unhindered to Great Britain, for Japan could not hold the North Sea. Danish provisions would supply the market which once Americans held. England would not starve. It would be American citizens dependent on the British market who would starve.
If the British blockade of Germany be admitted as valid, the entire law of blockade as evolved from centuries of experience will be abolished, and the possibilities of the future contain endless menace. England does not invest the German coast. She does not invest anything. The blockade does not affect all neutrals. Some are quite free from it. Norway and Sweden trade with the Baltic ports of Germany as if there were no war, for Germany, not England, holds the Baltic. A Swedish exporter of lumber can send it unmolested over the high seas from Gothenburg to Stettin, a German Baltic port. But if a Mobile exporter shipped a cargo to Stettin it would never arrive. England would seize it as it passed the British Isles.
England blockades, not all commerce with the German Baltic ports, but only such commerce as can be reached by British cruisers without too intimate association with German mines and torpedoes. That is, the precedent is being established that it is right and lawful for a belligerent with some degree of sea power to ban our trade if it can intercept our trade, whether it can so intercept the trade of other neutral nations or not. This is a new definition of blockade. The word blockade means nothing under such circumstances. Instead of a blockade, such action means an intolerable interference.
Were Japan or any other country so to shut off our food exports to England, the wheat farmers would feel the same distress that has come upon the cotton planters in the struggle of the Allies with Germany.
Nor is our acquiescence in the present order of things in accordance with our precedents, especially with our profession of the obligation to supply food to both belligerents if our neutrality is to be unimpaired.
In 1793, England, then, as now, without maintaining a legal blockade, undertook to capture all food products bound for France. The instructions of our then Secretary of State, Thomas Jefferson, to Thomas Pinckney, our Minister to Great Britain, are illuminating today. Asserting that "no nation can agree, at the mere will or interest of another, to have its peaceable industry suspended and its citizens reduced to idleness and want," Jefferson continued:
"Were we to withhold from France supplies of provisions, we should in like manner be bound to withhold them from her enemies also, and thus shut to ourselves all the ports of Europe where corn is in demand, or make ourselves parties in the war. This is a dilemma which Great Britain has no right to force upon us, and for which no pretext can be found in any part of our conduct. She may, indeed, feel the desire of starving an enemy nation, but she can have no right of doing it at our loss nor of making us the instruments of it."(#8)
It is of interest to note that from September of 1914 to May, 1915, inclusive, we exported foodstuffs to the values of $395,700,000, or $241,600,000 more than during the same period of the year preceding. The larger part of these exports went to England. What if we should decide today that an abandonment of our right to send foodstuffs to Germany means that we should in like manner be bound to withhold them from her enemies also?
In the reorganization of the British Cabinet in May, 1915, two members were added who, to be consistent, must support America's contention regarding the illegality of the present form of the British blockade. These new members are Mr. Balfour, head of the Admiralty, and Lord Lansdowne.
In our March 30 note to Great Britain, we declared our right to trade with Germany via neutral countries even if a blockade of German ports were maintained. To renounce this right, we declared, would be to renounce our neutrality. But we denied that Britain was maintaining a legal blockade. We stated its weakness in these words.
"The Scandinavian and Danish ports, for example,. . are free, so far as the actual enforcement of the Order in Council is concerned, to carry on trade with German Baltic ports, although it is an essential element of blockade that it bear with equal severity upon all neutrals."
In other words, we declared that England had no right to bar our commerce with German Baltic ports.
Mr. Balfour, before he joined the Cabinet, publicly admitted the truth of this contention. We must, therefore, support our case in the new Cabinet. In an interview cabled from London to the New York Times on March 27, discussing this novel feature of the British blockade, he ably explained the rule that a blockade must bar the commerce of all neutrals with a belligerent:
"It (this rule) is designed to prevent the blockading power using its privileges in order to mete out different treatment to different countries, as, for instance, by letting the ships of one nationality pass the blockading cordon while it captures the ships of another. Such a procedure is on the face of it unfair. It could have no object but to assist the trade of one neutral as against the trade of another and arbitrarily to redistribute the burden which war unhappily inflicts on neutrals as well as on belligerents."
Mr. Balfour, while agreeing that England's present blockade violates this principle, offered the excuse that "the discrimination, if it may be so designated, is not the result of deliberate policy but of a geographical accident."
But this defense did not even convince Mr. Balfour. He finally admitted:
"But, after all, it is the equity of the Allies' case rather than the law which mainly interests the thinking public of America and elsewhere."
Again, this is the assumption that Britain is fighting our battle and we must therefore let her do as she pleases in destroying our commerce as a means to attain her end.
If, then, there is no blockade which we can, as neutrals, admit, and none which the first Lord of the Admiralty in the British Cabinet can defend, we turn to another distinguished British statesman to learn what our rights are. It is recalled that, at the time of the Boer War, Lord Salisbury stated that conditional contraband could not be stopped by a belligerent unless shown to be destined to the military of the enemy.
At this point the second member of the British Cabinet, Lord Lansdowne, tells us our further rights in the matter. He tells us that we must not recognize the action of a belligerent (an English) prize court which stops our foodstuffs (to Germany) in violation of the principle Lord Salisbury laid down.
It is remembered that in 1904 Russia seized food destined to the civil population of Japan. Lord Lansdowne, we recall, then Foreign Secretary, wrote a letter to Joseph Choate describing the warning issued to Russia.
"His Majesty's Government further pointed out that the decision of the prize court of the captor in such matters, in order to be binding on neutral states, must be in accordance with the recognized rules and principles of international law and procedure."
That is, Lansdowne seems to say that every one of the hundreds of British seizures of vessels with American cargoes would have been illegal even if they had been destined for Germany. In the Cabinet he must contend that the British seizures of our exports to neutral ports were doubly beyond the pale of all law.
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