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THE LAW OF BLOCKADE 
 
 BY 
 
 A. MAURICE LOW, M.A. 
 
 Author o( ** The Americaa People, • Study in National Farcholotfy ; " 
 "Great Britftin and the War;" "The Freedom of the Se«»." ft«. 
 
 London : 
 SiK Joseph Causton tc Sons, Limited. 
 
 1916. 
 
THE LAW OF BLOCKADE 
 
 BY 
 
 A. MAURICE LOW, M.A. 
 
 Author of "The American People, a Study in National Pnycholoiy;" 
 "Great Britain and the War;" "The Freedom of the Seas," &a 
 
 London : 
 Sir Joseph Causton & Sons, Limited. 
 
 1916. 
 

 Reprinted from the New York Herald, March 12, 1916. The 
 whole or any part of this Essay may be reprinted, provided 
 proper credit is given. 
 
 -«.% 
 
 3 
 
THE LAW OF BLOCKADE 
 
 The right of a nation at war to close the ports of its enemy so as to 
 prevent him securing food or mihtary supplies is as old as war itself. 
 This is known as a blockade. It was practiced by the Greeks and the 
 Romans. It is the complement on sea of operations on land. Cities and 
 forts have always been blockaded by armies, the puq[X)se being to prevent 
 their inhabitants or garrisons from receiving assistance and to force their 
 surrender through exhaustion. A sea blockade aims to accomplish the same 
 purpose on a grander scale. It is directed not against a single fortress 
 or city, but a whole people. There is a difference in degree, but no differ- 
 ence in effect. In a beleaguered fortress a few thousand, sometimes 
 many thousand, persons suffer hunger, they die because they are deprived 
 of drugs and other medical necessities. When an entire coast is under 
 blockade the deaths and the misery are mvdtiplied tenfold, a hundred-fold, 
 a thousand-fold. This is one of the brutaUties of war. 
 
 The land belongs to nations, each sovereign over its own, the sea be- 
 longs to all. National jurisdiction extends to one marine league, or three 
 land miles, beyond the coast line, outside of that the heaving waters are 
 common property ; the high seas have been given over, by consent of 
 mankind, to the free use of man, subject only to such restrictions as civil- 
 ization and experience have proved to be for the general good. 
 
 In war nations close their barriers. It is a. military measure, and he 
 who ignores the warning does so at his peril. For an alien to attempt to 
 enter belligerent territory is to run grave risk ; he may suffer a long term 
 of imprisonment, very often death ; his goods can be confiscated. His in- 
 tentions may be innocent, he may simply endeavour to cross from his own 
 neutral country through that of the enemy to another neutral country, but 
 ^ his intent does not save him. Whenever he sets foot in the country at 
 00 war he hazards his property, his liberty or his life. 
 
 ^ To complete the isolation measures are taken to prevent intrusion 
 
 X from the sea. International law sancticms blockade and provides a penalty 
 
 Q^ for its violation. When a port is blockaded and a neutral vessel attempts 
 
 ^ax to enter, it may be seized and the vessel and cargo become " lawful prize," 
 
 that is the property of the captor as the spoils of war. There is, it will 
 
 be seen, no difference between the penalty on land or sea, only the law 
 
 . of the sea is more mercifuL The adventurous spirit who scents a profit 
 
 (B385> 3 
 
 ivi202130 
 
4 THE LAW OF BLOCKADE 
 
 in trying to pass through the enemy's lines to carry provisions to the be- 
 leaguered fortress puts his prospective profits against his life, the mariner 
 may risk the loss of his ship and cargo, but his life is not forfeit. If 
 a coast has not been blockaded neutrals may trade, provided their ships do 
 not carry contraband, which may be roughly defined, for the present, as 
 anjdihing that can be used to carry on war. Contraband, whether found 
 on the high seas or in enemy waters, if intended for the use of the enemy, 
 can be captured and condemned as prize, but the noncontraband part of 
 the cargo is inmiune from seizure. 
 
 To many persons this may seem unjust to the neutral, who is the 
 victim of a quarrel in which he has no part. Admittedly this is true, and 
 it is one of the misfortunes of war that, as Henry Clay wrote when he 
 was Secretary of State : " The neutral is always seriously affected in the 
 pursuit of his lawful commerce by a state of war between other powers ; " 
 yet we need not waste too much sympathy on the neutral. There has 
 probably never been a war which has not added to the gains of neutrals. 
 The Napoleonic wars enabled Americans to make great profits in the 
 same way that the present war has enormously increased the wealth of the 
 United States. Perhaps the most striking instance of war injuring a 
 neutral was the American Civil War, which prostrated the English cotton 
 industry, threw thousands of operatives out of work and forced them to 
 starvation, because the Northern blockade of the Confederacy cut off 
 suppUes of raw cotton. 
 
 International law requires that a blockade to be recognized by neu- 
 trals must be physically effective, that is, it must not be a mere declara- 
 tion of blockade, but the blockading nation must have enough ships to 
 prevent ingress or egress from the enemy's ports. This requirement 
 of an effective blockade in contradistinction from a " paper blockade " 
 was the outcome of that long conflict between England and France in 
 the early years of the last century. Napoleon did not have a navy pow- 
 erful enough to blockade England and her colonial possessions, so he 
 promulgated various decrees interdicting trade between neutrals and 
 England ; England retorted by Orders in Council, which interfered with 
 American commerce and aroused bitter resentment in this country. The 
 injustice was obvious, but it was not until 1856 that international law 
 crystaUzed this sentiment into a principle. Following the Crimean War 
 an international Congress was held in Paris, and it was there agreed that : 
 
 " Blockades, in order to be binding must be effective ; that is to say,.. 
 
THE LAW OF BLOCKADE 5 
 
 maintained by forces really sufficient to prevent access to the coast of 
 the enemy." 
 
 In the opening years of the last century. Lord Stowell, a great 
 English jurist and Judge of the Court of Admiralty, delivered a momen- 
 tous decision. Lord Stowell's legal eminence was recognized by that 
 equally eminent American juriconsult Justice Story, who said of Stow- 
 ell's judgments : " I have taken care that they shall form the basis of the 
 maritime law of the United States, and I have no hesitation in saying that 
 they ought to do so in that of every civiUzed country of the world." 
 Great Britain and France being at war, the products of French colonies 
 were loaded on American vessels which touched at American ports, thence 
 the voyage was continued to France, by a legal fiction the cargo having 
 become American property. This of course was simply an ^evasion of the 
 established public law that enemy property was lawful prize. American 
 merchants and shipowners enjoyed a tremendously profitable trade, 
 England's enemies suffered so little from the war that an English writer 
 bitterly complained " the produce of the eastern and western worlds sold 
 cheaper in the markets of France and Holland than in our own," and 
 England's naval supremacy was rendered impotent by a trick. 
 
 Lord Stowell's decision, 'which has had the most far reaching conse- 
 quences in England and America," and revolutionized the English and 
 American maritime code of war, was that when a vessel merely touched at 
 an American port it was simply an incident in the voyage, that the voyage 
 began when the cargo was originally loaded and ended only when the 
 cargo was discharged at the place of sale, and that the voyage was to be 
 held continuous from the port of departure to the port of arrival, even 
 although there had been an intermediate call. This is known to lawyers 
 as the doctrine of continuous voyage. 
 
 In 1861 the United States was at war and President Lincoln pro- 
 claimed a blockade of the Confederate ports. To circumvent the North, 
 English merchants resorted to the same device which more than half a 
 century earher made Lord Stowell promulgate his historical doctrine of 
 the continuous voyage. 
 
 Great Britain was a neutral. Under the law of nations her trade 
 could not be interfered with, but if her ships attempted to enter a block- 
 aded port they did so knowing they risked confiscation. There are in the 
 West Indies, as every schoolbo}^ knows, the British possessions of the 
 Bahamas and the Bermuda islands, their geographical position bringing 
 
6 THE LAW OF BLOCKADE 
 
 them within a short sail of Wilmington, Charleston, and Savannah, the 
 chief ports of the Confederacy. Now war or no war, contraband or no 
 contraband, there was nothing to prevent a British ship, laden with what- 
 ever cargo her owners pleased, sailing out of a British port with clear- 
 ance papers for a British port in the West Indies. They sailed, but 
 American cruisers went out into the broad Atlantic, sometimes a thousand 
 miles from the American coast, on the high seas over which the United 
 States exercised no jurisdiction and had no legal authority, on the ocean 
 that was the common pathway of man, and seized these ships and brought 
 them into Northern ports as prize of war. 
 
 In the legal proceedings that followed the Supreme Court of the 
 United States upheld the legality of the capture, basing its decision on 
 the doctrine enunciated by Lord Stowell, but broadening and strengthen- 
 ing it to meef new conditions ; and to the English doctrine of the contin- 
 uous voyage it added the American invention of " ultimate destination." 
 It was a decision in accordance with the principles of equity, good morals 
 and justice ; it was a decision the justice of which was subsequently recog- 
 nized by the British Government. 
 
 In a few words what the Supreme Court decided was this. Nomi- 
 nally the goods in question are to be discharged at a British West Indian 
 port, there to be sold as any other article of commerce may find a pur- 
 chaser. But these places have small populations, they cannot legitimately 
 absorb large quantities of goods, therefore it is evident they are not in- 
 tended for consumption at their alleged destination, and, furthermore, 
 the commodities are not such as the inhabitants need or can use. The car- 
 goes consist, among other things, of large quantities of percussion caps, 
 muskets, gunpowder, military boots, hardware, drugs and medical sup- 
 phes ; articles urgently needed by the Confederacy, but for which there 
 can be practically no demand in the West Indies. Applying the doctrine 
 of continuous voyage and looking to the ultimate destination of the 
 cargo, it becomes clear that the voyage is not from Liverpool to Nassau 
 but from Liverpool to Charleston, with Nassau as an intermediate port 
 of call ; there was no bona fide intention to sell the goods in Nassau, but 
 their ultimate destination was Charleston or some other convenient port 
 of the Confederacy. Nor was it material that the goods were dis- 
 charged in the first port and from there transhipped in another vessel, 
 or that, as it was claimed, the goods were to enter into the common stock 
 of the country. The Court, displaying sound common sense and being 
 
THE LAW OF BLOCKADE. 7 
 
 governed by precise considerations of justice, brushed aside these inge- 
 nious but dishonest legal technicalities and looked only to the ultimate 
 destination. The ports of the Confederacy were under blockade and 
 therefore any vessel tr5dng to run the blockade risked seizure and con- 
 demnation. That no one disputed, but the novel point in these captures 
 was : Could the United States send out its cruisers a thousand miles in 
 the ocean and there legally seize a vessel on suspicion — because there was 
 no actual proof, but only inference — of an attempt to enter a prohibited 
 port ? 
 
 The Supreme Court answered this question in the affirmative. There 
 are three leading cases with which every international lawyer and the 
 students of Anglo-American Civil War history are familiar. These de- 
 cisions governed all subsequent captures, and they lay down the broad 
 principle of American law that a blockade need not be " close" but can be 
 carried on at long range. In the past it was held that for a blockade to 
 be effective the blockading squadron must lie off the entrance of the 
 port, just out of range of the guns of the forts ; and it was believed to be 
 impossible for a continuous close blockade to be maintained, as stress of 
 weather and other circumstances would compel the blockaders to leave 
 their stations or risk destruction, and once the vessels withdrew the 
 blockade was raised. The Supreme Court gave much greater latitude. 
 In effect it said a blockade can be carried on at the convenience of the 
 blockader, close or far, as may best suit his purpose, the only requirement 
 being that he shall make the blockade effective and prevent ships enter- 
 ing or leaving the port. In one case it may be more convenient to block- 
 ade close in, in another the blockading vessels may go out into the ocean 
 500 or 1,000 miles, there to he in wait until neutral or belUgerent comes 
 in sight ; but so long as the passage is controlled and the way is blocked 
 it makes no difference where or how the blockading vessels are disposed. 
 
 There is no ambiguity about the language used by the supreme court. 
 The Springbok sailed from London in 1862 for Nassau, and 150 miles 
 off that port was captured by a Federal cruiser. In announcing the de- 
 cision of the Court Chief Justice Chase said : " We do not now refer to 
 the character of the cargo for the purpose of determining whether it was 
 liable to condemnation as contraband, hut for the purpose of ascertaining 
 its real destination ; for we repeat, contraband or not, it could not be con- 
 demned if really destined for Nassau and not beyond ; and, contraband or ^ 
 
8 THE LAW OF BLOCKADE. 
 
 not, it must be condemned if destined to any rebel port, for all rebel ports 
 were under blockade." 
 
 The Bermuda, ostensibly making for Bermuda, was captured near the 
 British West Indian island of Abaco. As usual with vessels in the West 
 Indian trade at that time she carried both contraband and noncontraband. 
 The vessel and the entire cargo were condemned. In the head note of 
 the decision of the Supreme Court this language is used : 
 
 " A voyage from a neutral to a belligerent port is one and the same 
 voyage, whether the destination be ulterior or direct, and whether with or 
 without the interposition of one or more intermediate ports ; and whether 
 to be performed by one vessel or several employed in the same transac- 
 tion ajid in the accompUshment of the same purpose." 
 
 " The ships," the Chief Justice said, " are planks of the same bridge, 
 all of the same kind, and necessary for the convenient passage of persons 
 and property from one end to the other." 
 
 The prize court proceedings arising out of the capture of The Peter- 
 hoff, a British vessel with a cargo of English merchandise, presented the 
 consideration of ultimate destination from another point of view, which 
 the Supreme Court also sustained. The Peterhoff was seized off St. 
 Thomas, Danish West Indies, en route to the Mexican port of Matamoras, 
 which, like the ports of the British West Indies, was a convenient entre- 
 pdt for the Confederacy. The Supreme Court held that as the Rio 
 Grande was international waters its mouth could not be blockaded and 
 neutral commerce was lawful, but again having regard to the ultimate 
 destination of the contraband cargo, knowing that it was intended not 
 for Mexican consumption but for sale to the Confederacy, it ordered 
 the contraband, consisting of horseshoes, horseshoe nails, iron, steel, 
 spades, quinine and other drugs, condemned, and freed the rest of the 
 cargo. 
 
 In the proceedings arising out of The Circassian the Supreme Court 
 ruled that " a vessel saiUng from a neutral port with intent to violate a 
 blockade is Hable to capture and condemnation as prize from the time of 
 saiUng, though she intended to call at another neutral port not reached at 
 the time of capture, before proceeding to her ulterior destination." 
 
 Before proceeding further it may be convenient briefly to summarise 
 the rights of a beUigerent as sanctioned by international law and exempli- 
 fied by the decisions of the Supreme Court of the United States. They are : 
 
 A blockade is legal, but to be respected by neutrals it must be physi- 
 cally effective. 
 
THE LAW OF BLOCKADE 9 
 
 The manner in which the blockade shall be made physically effective 
 is optional with the blockader. He may post his ships at the entrance of 
 a port or place them a thousand miles off shore. 
 
 The penalty for attempting to violate a blockade is the condemnation 
 of ship and cargo. 
 
 Absolute proof that a vessel contemplates running the blockade is not 
 necessary. Presumption may be inferred. 
 
 Neutrals may trade with a belligerent, but at their own risk. 
 
 Contraband intended for the enemy is lawful prize wherever found 
 and under any circumstances. 
 
 Noncontraband neutral goods to any enemy port not under block- 
 ade are free from seizure. 
 
 I shall now consider the course of England during the present war, 
 whether she has violated international law or has done anything that the 
 United States did not repeatedly do and its Court of last resort declare 
 to be strictly legal and not in derogation of the rights of neutrals. 
 England, I regret to say, has made two serious mistakes in the conduct 
 of her naval operations, but both were the result of her desire to make 
 the rigors of war less destructive to the trade of neutrals, and especially 
 to that of the United States. Immediately following the declaration of 
 war she ought — I insist now and have insisted from the beginning — to 
 have declared a blockade of Germany, but out of mistaken kindness she 
 refused to proclaim a blockade and accomplished the same purpose by 
 Orders in Council. This was unfortunate because of the bad repute 
 attaching to Orders in Council. To many Americans they recalled the 
 first decade of the last century when England retaliated against Napo- 
 leon's BerUn and Milan Decrees v/ith her Orders in Council, under the 
 guise of which a great many harsh and illegal things were ddne, which 
 finally led to the War of 1812. Many persons, not knowing the truth, 
 believed the present Orders in Council were simply a subterfuge, that 
 Great Britain proposed to do something that would not stand the light of 
 day, that the abominable practice of the "paper blockade" was to be re- 
 vived. Furthermore, the impression was created that England feared 
 to venture into enemy waters and dare not risk her ships, and that while 
 the commerce of neutrals would be harassed and subjected to unwarranted 
 interference, and small nations would be buUied into submission, the trade 
 of Germany would be little affected. 
 
10 THE LAW OF BLOCKADE 
 
 Why, then, did not England proclaim a blockade ? Simple because a 
 blockade would have brought incalculable injury and loss to America and 
 all other neutrals. Had a blockade been in force from the fourth of August, 
 1914, England would have been strictly within her legal rights in taking 
 into her ports every ship under any neutral flag — those of the United 
 States as well as Italy, for instance, who at that time was a neutral and 
 not a belUgerent — and if there was the smallest quantity of contraband in 
 the cargo the whole, contraband and non-contraband as well as the ship, 
 would have been lawful prize. Had Great Britain applied the same rule 
 of law that the United States did, had Great Britain held that the ultimate 
 destination of the cargo was sufficient ground for condemnation, there 
 could be no escape. The British Government had merely to follow the 
 American precedents, which are all in favor of the belligerent and against 
 the neutral ; the Supreme Court having virtually reversed the good old 
 principle of the English common law, that a defendant must be considered 
 innocent imtil his guilt has been proved, by asserting that the guilt of the 
 neutral ship may be presumed. " Presumption of an intent to run a 
 blockade by a vessel bound apparently to a lawful port may be inferred 
 from a combination of circumstances," the Supreme Court declared in 
 the case of The Cornelius. And it showed again how well disposed it was 
 to give every advantage to the belligerent and throw all risk and responsi- 
 biUty upon the neutral when it ruled in the case of The Cheshire that the 
 approach of a vessel to the mouth of a blockaded port for inquiry — the 
 blockade having been known — is itself a breach of the blockade, and sub- 
 jects both vessel and cargo to condemnation. In the same case Mr. 
 Justice Field delivered the dictum that " if approach for inquiry were 
 permissible it will be readily seen that the greatest facihties would be 
 afforded to elude the blockade." 
 
 Following this precedent the Supreme Court held in prize court pro- 
 ceedings arising out of the capture of the British steamer Adula, seized 
 during the Spanish war for attempting to break the blockade of Guanta- 
 namo, that while no blockade had been proclaimed of that place by the 
 United States, Guantanamo being east of the Une estabhshed by the 
 President's proclamation of the 27th of June, Admiral Sampson had 
 blockaded the port and those in charge of the vessel had actual knowledge 
 of the existence of the blockade, and that their sailing for the port was 
 therefore unjustifiable, and properly subjected the vessel to condemnation. 
 
THE LAW OF BLOCKADE 11 
 
 By not declaring a blockade the British Government leaned backwards 
 in its desire to be just and cause the minimum of inconvenience and loss 
 to neutrals, and practically offered an inducement to contraband traffic. 
 Blockade running like smuggling is profitable but risky business, because 
 while big prices can always be obtained if a cargo is successfully landed, 
 against the profits must be reckoned the condemnation of the vessel, 
 which represents a considerable investment of capital. The British Gov- 
 ernment quixotically eliminated the risk and left only the profits. No 
 blockade having been proclaimed neither the vessel nor the non-contra- 
 band part of the cargo could be condemned, only the contraband was 
 forfeit. The arrangement was all on the side of the neutral, to the ad- 
 vantage of the enemy, and at the expense of England. 
 
 It was necessary, however, and a legitimate exercise of belKgerent 
 rights, to cut off Germany from receiving supplies, and measures were 
 taken to prevent neutrals trading with Germany under the pretext they 
 were trading with other neutrals. In a word, the British Government 
 invoked the law of continuous voyage and ultimate destination, and it 
 believed that a law promulgated and enforced by such a distinguished 
 authority as the Supreme Court of the United States could be safely used. 
 I should regret exceedingly if Americans were to hold to the contrary, 
 nor do I believe that the great mass of the American people would want 
 to declare unmoral, improper or unjust a law created by the Supreme 
 Court and made effective when its application was for the benefit of the 
 United States, and to treat it with contempt because its impartial appli- 
 cation may cause some temporary inconvenience to American citizens. 
 
 The Orders in Council had the same effect as a blockade in closing the 
 ports of Germany. The efficiency of that blockade does not need to be 
 discussed. It has complied with the rule of international law that a 
 blockade to be recognised by neutrals must be able " to prevent access to 
 the coast of the enemy." The oversea trade of Germany has disappeared. 
 Not a vessel enters or leaves a German port. Not a German merchant 
 vessel can be found on any ocean. The German Navy is in hiding. Mr. 
 J. R^ Soley, the distinguished American historian of the naval opera- 
 tions of the Civil War, says " the absolute locking up of a well fortified 
 port, whose trade offers powerful inducements to commercial enterprise, 
 is an absolute impossibility." This was written of a time when there 
 were no submarines, no aeroplanes, no great mine fields, no long range 
 guns, no torpedoes, even although the intrepid Gushing won imperishable 
 
12 THE LAW OF BLOCKADE 
 
 renown by destroying the Albemarle with a spar torpedo. Yet the impos- 
 sible has been made possible. History records no blockade where the 
 hazards were so great, the strain so intense, the difficulties so many ; 
 never in all history has there been such perfect blockade as that which the 
 British Navy has maintained day after day for eighteen months in the 
 North Sea. Never has a great and powerful nation possessed of a formi- 
 dable fleet struggled so desperately to break the coils which enmeshed 
 her. The struggle has been vain. German ships of commerce lie rotting 
 at their piers. German ships of war, fearing the issue of battle, skulk 
 behind their defences. 
 
 To ascertain the ultimate destination of all cargoes carried in neutral 
 ships Great Britain has done no more and no less than did the United 
 States. Just as Federal cruisers were stationed from 500 to 1,000 miles at 
 sea to intercept merchantships and inquire into their destination and the 
 contents of their holds, so Great Britain has posted her cruisers at the gates 
 of the North Sea. To distinguish between goods with an enemy desti- 
 nation and those of a neutral destination has been difficult. In the past, 
 when ships were small and their cargo capacity limited, a vessel could be 
 quickly searched and a decision speedily reached whether her freight was 
 contraband or innocent, whether the goods she carried were for enemy or 
 neutral use. Today the task is much more complicated. It is physically 
 impossible for the ship to be searched at sea, she must be carried into port, 
 there to be discharged, each bale and box and package carefully examined, 
 for Germany, being in sore straits for certain commodities has attempted 
 to smuggle them in innocent goods. This examination has taken time, in 
 some instances caused loss to the shipper and the detention has been ex- 
 pensive to the shipowner, but these losses and inconveniences are ines- 
 capable in war. When contraband has been discovered it has been con- 
 demned and proceedings instituted in the prize court ; goods whose ulti- 
 mate destination is believed to be Germany and not a neutral port have 
 been held to await judicial determination. Shippers and owners natu- 
 rally object to losing prospective profits, and they complain British action 
 is without warrant in law, but they forget that they have violated th|; law 
 with full knowledge of its penalties, and that England, instead of exact- 
 ing the full measure of the law, as did the United States, has displayed 
 unparalleled leniency by yielding her rights and freeing ships that prop- 
 erly were liable to confiscation. 
 
THE LAW OF BLOCKADE 13 
 
 Great Britain has done what the United States did. She had been 
 compelled to brush aside technicalities and evasion. The United States 
 decided that when an English merchant sent percussion caps by the million 
 and muskets by the thousand to an island whose people had no use for 
 percussion caps or muskets, it was proof that ultimately they were to be 
 sent elsewhere, and judge or jury who decided otherwise would have 
 been stupid or corrupt. England has been placed in a much more difficult 
 position and the decision has been reached on more complex evidence. 
 Bermuda clearly had no need for millions of percussion caps, Denmark 
 might have use for a great deal more cotton or American wheat this year 
 than she needed last year or the year before. On the face of it this is a 
 bona fide transaction between the United States and Denmark. Certain 
 ports in countries bordering on Germany have a large trade in times of 
 peace, railways, canals and intercostal commerce enable goods landed 
 at one port to be sent quickly and cheaply to other countries. Modern 
 commerce is an extremely complicated process. In the past a shipper 
 consigned his wares to an agent, which made it easy to follow them into 
 the hands of the consumer. Today cargoes are consigned " to order," 
 that is, they are not consigned to a particular individual but can be sold 
 at destination to any person. Thus a shipload of American wheat sent 
 to Rotterdam is offered to the highest bidder, who may be a Dutch firm 
 or an agent of the German Government, and if the latter he quickly for- 
 wards it to Germany. The problem, therefore, is for the British Govern- 
 ment to determine how much wheat, cotton and other commodities are for 
 the actual use and consumption of neutrals and how much goes to those 
 neutrals simply in transit to Germany. In other words, is Germany, im- 
 potent on the sea, to nuUify the impregnable British blockade by making 
 use of a neutral as a blockade runner ? 
 
 The reader will recall the case of The Peterhoff whose contraband 
 cargo to be landed at Matamoras was condemned. Matamoras is on all 
 fours with Rotterdam. It was legitimate for English neutrals to sell 
 contraband to Mexican neutrals provided it was a transaction in good 
 faith, but it was not legitimate for an Englishman to carry contraband 
 into Mexico knowing that it would be rushed across the border into the 
 hands of the Confederate Government. Precisely the same thing holds 
 good today as between New York and Rotterdam. For an American to 
 sell cotton to Holland is a right neither England nor anyone else can 
 infringe, but when this cotton is sold nominally to HoUand and actually 
 
14 THE LAW OF BLOCKADE 
 
 filters through Holland into Germany to be turned into explosives, Eng- 
 land may, with every sanction of international law, pronounce the trans- 
 action fraudulent and prevent it. 
 
 In his report for 1863 the Secretary of the Navy said : 
 
 " A flag squadron was established in the Autumn of 1862, and placed 
 tinder the command of Acting Rear Admiral Wilkes. That officer, by 
 his energy and decision, contributed to break up one of the several lines 
 of illicit traders organized to carry supplies to the rebels ostensibly bound 
 to Matamoras, but with cargoes having a contingent destination to 
 Texas." 
 
 " A contingent destination," it is a most admirable phrase. 
 
 What the United States did in 1861 and subsequent years with the 
 approval of the American people and Great Britain is now doing, that 
 is seizing cargoes with " a contingent destination," is alleged to be a 
 gross interference with neutral commerce and a violation of international 
 law, inasmuch as it is virtually a blockade of neutral ports, and while a 
 belligerent is permitted to blockade the ports of an enemy he may not 
 blockade the ports of a neutral. But in placing in the prize court mer- 
 chandise whose ultimate destination is under suspicion, or detaining 
 articles pending proof of ownership, England is no more blockading 
 neutral ports than the United States blockaded the neutral British ports 
 of the West Indies. Bermuda was not blockaded, because that would 
 have been a challenge thrown down to England ; but the Confederacy 
 was under blockade and Federal cruisers, in the proper performance of 
 their duties, were enforcing the blockade by preventing ships, neutral or 
 Confederate, from running the blockade, and in the judgment of the 
 Admiral commanding the squadron that work could be more efficiently 
 done a thousand miles from the coast than ten. If American jurists 
 should now hold that England is blockading the neutral ports of Scandi- 
 navia and Holland, then not only does the United States reverse the 
 Supreme Court but the American Government is liable to Great Britain 
 in damages for the vessels and cargoes seized during the Civil War. 
 From this embarrassment there is no appeal. 
 
 O But what the United States did in 1861 and what England is doing 
 today is this. International law prohibits a neutral from allowing its 
 territory to be used as an enemy base. A neutral may sell to a belligerent, 
 but a neutral must not allow its domain to serve as a base from which a 
 'belligerent conducts military operations. In my examination of the de- 
 
THE LAW OF BLOCKADE. 15 
 
 cisions of the Supreme Court I have not been able to find that the term 
 " enemy base " was used, but undoubtedly that thought was in the minds 
 of the eminent jurists when they condemned The Bermuda, The Spring- 
 bok and other vessels. The Bahamas and Bermuda had become, in fact, 
 enemy bases, and their character had entirely changed. In the same way 
 today certain neutral countries adjacent to Germany have become an 
 enemy base when by official connivance or through failure to take 
 measures strictly to observe the obligations of neutrality they permit 
 contraband to pass through their ports with Germany as the ultimate 
 destination. 
 
 All other considerations apart, self interest and national safety must 
 make the United States think long and earnestly before it gives encour- 
 agement to the abandonment of the rule of international law that pro- 
 hibits a neutral from constituting its territory an enemy base. Suppose 
 the United States should be at war with Mexico, and suppose it should 
 be to the interest of one or more great powers to support Mexico. Im- 
 probable as that may appear today, it is no more improbable than two 
 years ago the average American would have declared it was impossible 
 for more than half the world to be at war and thousands of lives and 
 millions of treasure should be sacrificed every day on the field of battle. 
 The great Powers, the allies of Mexico, would have to supply her with 
 munitions and military supplies, and these would be sent in neutral bot- 
 toms not to Mexican ports, which the United States would have block- 
 aded, but to one or more of the Central American Republics. We should 
 then see millions of rounds of anmiunition, thousands of rifles and ma- 
 chine guns, vast stores of all descriptions poured into these Republics 
 nominally for their own use ; and as they were neutral and the goods 
 were the property of neutrals they would be immune from capture. Does 
 anyone believe the United States would permit the setting up of an 
 enemy base ? Does anyone question that the American doctrine of ulti- 
 mate destination and " contingent destination " would not be invoked, 
 and that American cruisers would go out into the Atlantic and the Pacific, 
 even to Europe and Asia if necessar^^ to capture these supply ships ? 
 
 A further complaint made against England is that her blockade of 
 Germany is illegal because it does not comply with the rule of interna- 
 tional law that a blockade must be impartially enforced against all 
 neutrals. This proves the truth of the old adage that a little knowledge 
 is a dangerous thing. That portion of the coast of Germany bordering on 
 
16 THE LAW OF BLOCKADE. 
 
 the North Sea is under blockade, the Baltic coast of Germany is not, 
 therefore it is possible for Scandinavia to carry on commerce with Ger- 
 many, while the commerce of America, having to pass through the North 
 Sea, runs against the blockade ; therefore, again, the essence of equaUty 
 is absent, and the blockade is really a discrimination against the United 
 States. 
 
 Persons who argue in this fashion are undoubtedly honest, but they 
 are betrayed into error by their ignorance. Blockade is a belligerent 
 right, to be exercised by the belligerent as he sees lit, with due regard 
 to the restrictions imposed by the law of nations, and no more subject 
 to the whim or convenience of a neutral than are operations on land. 
 When a blockade is instituted the blockading government is required to 
 issue a proclamation, which prevents neutral ships from pleading ignor- 
 ance and avoiding the penalty of blockade running. The proclamation 
 states the geographical limits of the blockaded area. It is optional with 
 the blockader whether he shall blockade one or more ports, whether he 
 shall blockade the whole or only a part of the coast, and he may extend 
 or contract the limit during 'the progress of the war, provided always 
 that the blockade is actual and physical and not simply a declaration. 
 Thus, when the United States declared war on Spain President Mc- 
 Kinley, by proclamation of April 22, 1898 declared a blockade of the 
 ports of the north coast of Cuba from Cardenas to Bahia Honda in- 
 clusive, and of the port of Cienfuegos on the south coast. That left' a 
 great stretch of the coast of the island open. On June 27 the blockade 
 was extended to include all the ports on the south coa^ from Cape 
 Frances to Cape Cruz, and in Porto Rico only the port of San Juan was 
 declared under blockade. There have been blockades confined to a single 
 port, there have been blockades when certain enemy ports have been spe- 
 cifically exempted from blockade and declared free to neutral commerce. 
 EquaUty, therefore, as the word is used by international jurists in this 
 connection, does not mean that the advantage conferred on one neutral 
 by geographical relation must be compensated for when another neutral, 
 owing to the accident of geography, is not placed in an equal position 
 as regards the belligerent, but simply means that the blockader may grant 
 no favors to one neutral not given to all. He may not permit the ships 
 of one neutral to enter a blockade port and deny the same privilege to 
 ships of other neutrals, he may not seize contraband under one flag and 
 give it safe conduct when it is covered by another flag. Having been 
 
THE LAW OF BLOCKADE 17 
 
 consistently impartial and regarding all neutrals as entitled to the same 
 treatment, he has done all that is required of him. Great Britain would 
 have complied with every requirement of international law had she pro- 
 claimed the North Sea Coast of Germany under blockade and made no 
 attempt to prevent communication with Germany through her Baltic 
 ports. To show that a blockade need not embrace the entire coast but 
 only certain parts I quote from the instruction of Mr. Clayton, when 
 Secretary of State, to the American Minister to Denmark, the " blockade 
 must be confined to particular and specified places." 
 
 I have already stated that two mistakes were made by England in 
 the early days of the war. One has been discussed, the other was the 
 vexed question of contraband. Out of consideration for the United States, 
 and in the hope of causing the least financial injury to American interests, 
 the British Government refused to make cotton contraband because the 
 season's crop was then beginning to come to market, and the ban of con- 
 traband would have smashed prices and caused acute financial distress. 
 Having as early as September, 1914, urged upon the British Government 
 immediately to place cotton on the contraband list because of its vital 
 importance in the manufacture of explosives, I am naturally disposed to 
 think the Government erred, but the fact that Great Britain was wilUng 
 to incur this handicap — for it must be remembered the British Govern- 
 ment was not ignorant of the benefit to be derived by Germany but made 
 the sacrifice with full knowledge of the consequences — ought once and 
 for all to silence those critics of England who persist in their untruthful 
 statements that England has purposely interfered with American trade 
 and brought great losses to Americans that might have been avoided. 
 
 What is included under the head of contraband international jurists 
 have yet to determine. "I apprehend it to be the settled rule of inter- 
 national law that the question of contraband is to be determined by the 
 special circumstances of each case," Mr. Bayard wrote when he was Sec- 
 retary of State. "Horses, for example," he continued, "would not ordi- 
 narily be spoken of as contraband, yet all authorities agree that they may 
 be so regarded when their supply is so essential to a particular bellig- 
 erent that he cannot carry on operations successfully without them." 
 Here in the last sentence we have perhaps as clear a definition as it is 
 possible to give. Contraband, in brief, is whatever a belligerent needs, 
 and although the word connotes articles of military use or necessity, the 
 classification is much wider. "Printing presses, materials and paper, and 
 
18 THE LAW OF BLOCKADE 
 
 postage stamps, belonging to the enemy, and intended for his immediate 
 use, are contraband," the Supreme Court ruled in The Bermuda. In the 
 old days, in those spacious days before steam, when men fought breast 
 to breast, and ships fired their guns through the enemy's ports and the 
 crew swarmed over the sides cutlass in hand, the list of contraband could 
 be easily determined. In a treaty concluded by the United States with 
 Italy as recently as 1871 it is curious to read among the enumerated 
 articles of contraband " swivels, blunderbusses, muskets, fusees, pikes, 
 spears, halberds, matches, balls," all of which might be interesting in a 
 museum of antiquities but would be worthless on a modern battlefield. 
 Contraband cannot be narrowly defined because war no longer being a 
 contest of force but of science, and chemists, physicists, metallagurists, 
 engineers having as much to do -with winning battles as generals, what 
 may be an innocent article in peace can be converted into a powerful 
 explosive in war. Take, for example, a thing so harmless as glycerine, 
 which is good aHke for the minor annoyance of infants and the old, and 
 is a balm to women who respect their complexions. In Germany today 
 glycerine is not being used to soothe the chafed limbs of babies or to 
 heal the faces of women chapped by the cold, but every ounce is being 
 converted into the manufacture of explosives. Mention lard and it is to 
 think of the fr3dng pan, which is well enough in peace, but today Ger- 
 man chemists are transforming lard into glycerine to keep up the supply 
 for the munition maker. Take cotton, about which we have all heard sa 
 much. Germany is not offering extravagant prices for the staple to make 
 shirts or socks or sheets, but to make explosives for her big guns, for 
 the torpedoes to be fired from submarines to sink ships. Excluding 
 articles of pure luxury that can be used only for the specific purpose 
 for which they are intended, there is practically nothing that cannot be 
 classed as contraband or turned to mihtary use, either to replace a recog- 
 nized element or as a substitute. 
 
 I have been reUably informed that a short time ago one of the neutral 
 Powers attempted to make a list of contraband and submitted the ques- 
 tion to its military experts and scientists. After devoting considerable 
 study to the subject they reported that with the exception of human hair 
 there was not a single element or substance which could not in some way 
 be made to serve a military purpose. 
 
 A great deal of honest misunderstanding exists as to the trade rights, 
 of neutrals in war, and it is well these misapprehensions should be re- 
 
THE LAW OF BLOCKADE 19 
 
 moved. War does not stop trade, but it introduces two new factors. 
 First, it makes the broad distinction between contraband and noncontra- 
 band ; second, it imposes certain risks. I shall not burden this article with 
 unnecessary citations, it is sufficient to say that Jefferson, Pickering, Clay, 
 Evarts and Frelinghuysen, when Secretaries of State ; Hamilton, when 
 Secretary of the Treasury ; President Pierce, in his second annual mes- 
 sage to Congress, various Attorney Generals and the Supreme Court 
 have repeatedly affirmed that citizens of the United States have the right 
 to sell contraband to belligerents, and this traffic is not a breach of 
 neutrality ; but the Supreme Court has also declared that contraband 
 is always subject to seizure when being conveyed to a belligerent desti- 
 nation, and that an enemy's commerce under neutral disguises has no 
 claim to neutral immunity. The question then, and the only question, is 
 to determine what is contraband, and that must vary from time to time, 
 even from day to day, and, as Secretary Bayard wrote, " be determined 
 by the special circumstances of each case." 
 
 It has been charged against England — by the Germans in Germany 
 and the German sympathizers in the United States — that she is guilty 
 of uncivilized warfare in that her blockade serves no military purpose 
 and only kills, by starvation, babies and young children. No one can 
 follow the tortuosity of the German mind. Scarcely a day passes but 
 some important official in Berlin tells the world through the medium of 
 the American press that the British blockade is a failure, that Germany 
 has all the food and everything else she needs, that she cannot be starved 
 into submission ; and scarcely a day passes but other officials equally 
 highly placed denounce Great Britain for making war on babies. Until 
 German officials can agree whether they are starving or rioting in abund- 
 ance the neutral world need not particularly concern itself about charges 
 of brutaUty ; remembering the babies Germany sent to their death beneath 
 the chill waters of the Atlantic ; the babies on whom German aeroplanes 
 dropped bombs in England ; the babies German soldiers killed in Belgium ; 
 the young girls the victims of German lust in France, in Belgium, in 
 Poland ; remembering the crimes of which Germany is guilty ; remem- 
 bering all these things, a world heartsick with horror might well say 
 to Germany that as she watches the death throes of her infants the 
 vengeance of the Lord is being exacted. But, for the honor of humanity, 
 the world is not all Prussian. The thought of Uttle children dying be- 
 cause milk is denied them is very terrible, and is still another crime for 
 
20 THE LAW OF BLOCKADE 
 
 which Germany stands indicted at the bar of civiUzation. England can 
 no more permit milk to go to Germany than she can permit foodstuffs 
 or cotton or explosives ; because, among other reasons, milk can be con- 
 verted into explosives, and the tins in which condensed milk is packed 
 make excellent trench bombs. 
 
 It is always the innocent who are the heaviest sufferers from war ; 
 it is always the very young and the very old, the sick and the infirm, 
 those who have had nothing to do with bringing on the war and who 
 can take no part in it, who are war's first victims. Germany plunged 
 the world into war, and Germany is now paying the penalty. Germany 
 showed no mercy when she besieged Paris and French babies starved 
 to death ; when the French Commander shut up in Strasburg requested 
 that milk be sent in for dying babies his petition was rejected. 
 
 Though the mills of God grind slowly, yet they grind exceeding small ; 
 Though with patience He stands waiting, with exactness grinds He all. 
 
 I trust I have made the law of blockade clear and the power under 
 which it may be exercised by the sanction of nations. I believe every 
 unprejudiced person will agree that in blockading Germany, in prevent- 
 ing neutrals from violating the law of blockade and providing Germany 
 with the food a,nd other articles she needs to carry on the war. Great 
 Britain instead of having exceeded her legal rights has surrendered many 
 of them, and that for everything she has done she is following the prece- 
 dents established by the United States during the Civil War, which the 
 Supreme Court of the United States sustained as being in strict con- 
 formity with good morals and international law. 
 
THIS BOOK IS DUE ON THE T. 
 
 STAMPED Vl"w^^ ^ATE 
 
 

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