The note goes on to say:

In reply to possible objections that, notwithstanding the willingness of American industry to furnish merchandise to Austria-Hungary and Germany, it is not possible for the United States of America to trade with Austria-Hungary and Germany, it may be pointed out that the Federal Government is undoubtedly in a position to improve the situation described.

The note suggests that the situation would be improved if an embargo were placed upon the exportation of munitions. The burden of this note, when baldly stated, is that the United States should restore to the Central Powers an advantage they have undoubtedly lost as the result of war by depriving the Allied Powers of an advantage they have undoubtedly gained as the result of war. It thus seeks to "improve the present situation," only so far as the Central Powers are concerned. In short, it calls upon the United States to violate its neutrality and depart from the accepted law of nations, by conferring a special benefit upon one of the belligerents.

The reply to this note was drawn by Secretary Lansing, and dispatched to Ambassador Penfield, at Vienna, August 12, 1915.36 This reply seems to furnish a complete answer to the position taken by the AustroHungarian Government, and to maintain with renewed force the traditional doctrine of international law strictly adhered to by the United States. It is, of course impossible, in this limited space to make even a superficial summary of this able document; and two or three of its main points only can here be noticed. Attention is first directed to the claim that the United States should abandon the long-recognized rules governing neutral traffic in time of war, and adopt measures, in the words of the Austro-Hungarian note, "to maintain an attitude of strict parity with respect to both belligerent parties." Mr. Lansing says:

The recognition of an obligation of this sort would impose a duty upon every neutral nation to sit in judgment on the progress of a war, and to restrict its commercial intercourse with a belligerent whose

36 The Secretary of State to Ambassador Penfield, August 12, 1915,-instructed to inform Foreign Office of reason the U. S. cannot prohibit trade in contraband. See Ibid., pp. 166–171.

success prevented the neutral to trade with the enemy. The contention of the Imperial and Royal Government appears to be that the advantages gained to a belligerent should be equalized by the neutral Powers by the establishment of a system of non-intercourse with the victor.

The Secretary then calls attention to the attitude of the Central Powers themselves under circumstances similar to those now existing. He says:

During the Boer War between Great Britain and the South African Republics, the control of the coasts of neighboring neutral colonies by British naval vessels prevented arms and ammunition from reaching the Transvaal or the Orange Free State. The allied republics were in a situation almost identical in that respect with that in which AustriaHungary and Germany find themselves at the present time. Yet, in spite of the commercial isolation of one belligerent, Germany sold to Great Britain, the other belligerent, hundreds of thousands of kilos of explosives, gunpowder, cartridges, shot and weapons; and it is known that Austria-Hungary also sold similar munitions to the same purchaser.

Mr. Lansing thus indicates that the past practice of the Central Powers does not sustain their present contention. He also shows that

The general adoption by the nations of the world of the theory that neutral Powers ought to prohibit the sale of arms and ammunition to belligerents would compel every nation to have in readiness at all times. sufficient munitions of war to meet any emergency which might arise, and maintain establishments for the manufacture of arms and ammunition sufficient to supply the needs of its military and naval forces throughout the progress of a war.

Such a practice he says, "would inevitably give the advantage to the belligerent which had encouraged the manufacture of munitions in time of peace" and that "the adoption of this theory would force militarism on the world." He closes his argument with these words:

The principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods for the adjustment of international differences, and, finally, neutrality itself, are opposed to the prohibition by a neutral nation of the exportation of arms, ammunition, or other munitions of war.

In summing up this discussion I think it has been shown: (1) that notwithstanding the comparatively recent development of the law of

neutrality, the custom of regarding all neutral commerce as free, subject only to the belligerent right of confiscation in the case of hostile goods with a hostile destination, has existed at least from the seventeenth century.

(2) That this custom has been recognized by the Government of the United States as a rule of international law from the very beginning of its history until the present time.

(3) That this custom is a part of the general law of contraband, which is based upon the fact that the transportation of munitions of war is injurious only to one or the other of the belligerents, upon whom is conferred the legal means to prevent it; and is in no sense an injury to neutral states, which are therefore relieved from the obligation to prevent it.

(4) That the fact that one of the belligerents has, by a misfortune of war, been deprived from exercising his own belligerent right of intercepting contraband goods on their way to his enemy, does not justify the assumption of this belligerent right by a neutral Power for the sole benefit of the unfortunate belligerent.

(5) That the placing of an embargo on the sale of munitions of war under such circumstances would have the effect of assisting one belligerent at the expense of the other, and hence would be an unwarrantable interference with the progress of the war, and expose the neutral Power laying such an embargo to the charge of unneutrality; and,

(6) That the abolition of this custom would reverse the concurrent judgment of the world as expressed in the Hague Conventions, would impose new obligations and oppressive burdens upon every neutral state, would work a positive injustice to every country inadequately prepared for war and compel every nation to be sufficiently armed at all times to meet any possible attack,-a condition of things that would lead to a universal state of militancy and prove a misfortune to the world at large.

WILLIAM C. MOREY.

THE LEGALITY OF THE BLOCKADES INSTITUTED BY NAPOLEON'S DECREES, AND THE BRITISH ORDERS IN COUNCIL, 1806-1813

No exhaustive study has, as yet, been made of the Napoleonic era with a view of determining the exact legal status of the blockades established by the British orders in council and the French decrees. It is the purpose of this work to point out the more salient features embodied in the principles of blockade during this period as set forth and laid down by the statesmen of the United States, Great Britain and France, together with their relations to the principles of international law. With this end in view, the treaties, conventions and diplomatic intercourse between the United States and these two foreign countries have been carefully studied. The opinions of statesmen and official legal counsel, as well as the diplomatic correspondence and the decisions of the admiralty courts must be accepted as, in a large measure, establishing the international principles upon which the legality of the various acts may be determined. Court decisions during this period, however, are too much influenced by expediency, made necessary by the demands of the times, to be unconditionally accepted as the last word on the legality of the points in question; but they will nevertheless be freely used.

But before entering into the discussion of the blockade after 1806 it will be necessary, first, to establish the generally accepted definition of what constituted a blockade prior to that time.

I. THE CONCEPTION OF BLOCKADE PRIOR TO 1806

The Russian proclamation of 1780 laid down the definition of a blockade as follows: "That the denomination of a blockaded port is to be given only to one which has the enemy vessels stationed sufficiently near to cause an evident danger to the attempt to enter." This prin

1 Wheaton, International Law, 297–298.

ciple seems also to have been adopted quite completely by the British. In 1798, Sir William Scott, of the High Court of Admiralty, in reference to the proclamation of January 1, 1794, placing the French West Indies under blockade, said,

The Lords of Appeal have determined that such a proclamation was not itself sufficient to constitute a legal blockade: it is clear, indeed, that it could not in reason be sufficient to produce the effect, which the captors [of the Betsey] erroneously ascribed to it; but from the misapplication of these phrases in one instance, I learn, that we must not give too much weight to the use of them on this occasion; and from the generality of these expressions, I think we must not infer, that this was not that actual blockade which the law is now distinctly understood to require.2

In the same case he says,

On the question of blockade three things must be proved: 1st, the existence of an actual blockade; 2nd, the knowledge of the party; and 3rd, some act of violation, either by going in, or by coming out with a cargo laden after the commencement of the blockade.3

Again, in 1804 the prize court laid down the rule that, to constitute a blockade, notice to shut up the port should be given, and special notice of blockade must be made to vessels in the neighborhood of the port to warn them off, and that in addition, a force sufficient to enforce the blockade must be stationed near enough to keep all vessels from entering.1

These cases point to the acceptance of the principles that blockades must be generally as well as specially notified, and that paper blockades are invalid.

5

This rule seems to have substantially coincided with that of the French at this period, and, with the exception of the parts relating to notification, was the definition given in the treaty between Russia and Great Britain in 1801. Article IV of this treaty reads:

2 The Betsey, 1 C. Rob. 92a; Scott's Cases, 798.

3 Ibid.

The Nancy, 1 Acton, 57; Scott's Cases, 817. This was, however, a blockade instituted by the commander of the fleet.

'W. E. Hall, A Treatise on International Law, 719.