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admitted, the way was clear to interrupt all traffic with the enemy, without an extended category of contraband. It was simply declared that neutrals would run the risk of being blown up if they ventured near the enemy's coast. Ten years ago it was pointed out in the Revue de Droit International that if the destruction of neutral ships, under any circumstances, was legalised, according to the desire of the Continental Powers (and, subsequently, the Declaration of London)—the way would be clear for belligerents to enforce a virtual blockade by sinking (under the excuse of necessity) whatever vessels approached the enemy's shores.
In the present war, the evil consequences of the failure to protest effectively against these novel claims is apparent. At the Conference of London they were all accorded a respectful hearing, and made the subject of compromise, instead of being called upon to justify themselves by the practice of nations. The paper safeguards with which the Declaration of that Conference surrounded them disappeared. The novel claims themselves remained and remained to prove effective. Germany opened the war by laying mines in the North Sea. Britain counter-mined--thus closing the Sea in a great area of its extent to neutrals. But her more characteristic move was the progressive declaration of more and more objects to be contraband, until at last ore, foodstuffs and “nuts,” and, in fact, everything but the illogically exempted cotton, are within the term, and Gothenburg is as suspect a port as Bremen. The German reply was the cool announcement, not of blockade of the British Islands, but of an intention to sink all ships resorting thither, without necessarily inquiring whether they might not be neutral. The British answer goes outside the lirnits of contraband and “warlike areas," and founds itself on the principle of retaliation. That was the only resource left. And it is tantamount to repudiating International law altogether. Retaliation on enemies is a thing which ought to be very narrowly limited. Retaliation on friends is indefensible. Mr. Balfour has published a laboured defence of it, contending that if an enemy breaks the rules of International law in one particular, the whole system of the Law of Nations is, so to speak, removed from the slateand neutrals and belligerents alike must proceed without reference to its dispositions. This is mere anarchy, and not even distinguished by the merit of ingenuity.
The Order in Council of 11th March, 1915.
The precise terms of the British Order in Council will scarcely repay study. The intention is, apparently, to intercept the trade of Germany: but it is the reverse of clear what is intended to be done with it. Apparently the idea is to do with it what the Prize Court thinks proper. That is neither satisfactory to neutrals nor fair to the Court.
It is not the business of the Court to say what is to be done with the innocent goods of neutrals, engaged on a lawful voyage to which we object, which we assume to interrupt. The Court is lowered by such a course, and neutrals are injured by it. Their position ought to be plain and certain. If we are determined, in view of Germany's misbehaviour, to interfere with their rights, their liabilities ought to be distinctly stated by the responsible Ministers of the Crown. In points of detail, the Order is far from being as precise as might be desired. It is not only goods coming from, or going to, Germany, that are intended to be intercepted, but also goods “the produce of” Germany. When do goods which have originally come from that country cease to be “the produce” of Germany ? Do they ever ? The directness of the voyage is not taken into account, so that neutral ships may be stopped from trading between their own ports. And, of course, the protection of the Declaration of Paris is gone, when enemy
goods on neutral ships can be intercepted and subjected to some unknown treatment in the British Court. The goods may be requisitioned-doubtless on the Admiralty's own terms--and if they are enemy goods, it will require a great stretch of the imagination to suppose they will be paid for. Payment after the war is, of course, an illusory thing; it can be thrown on the enemy by the treaty of peace. The only substantial matter is, what is to be done during the progress of hostilities. The Americans seem disposed to accept the Order as a mitigated exercise of the right of blockade. It may be true that an effective blockade may be maintained by a modern fleet at a considerable distance from the enemy's ports. But it remains true that an ineffective blockade is not a binding blockade. If modern conditions make it impossible for cruisers to approach near enough to impose an effective blockade, the right conclusion is, not that ineffective blockades are valid, but that blockades must be abandoned. The truth is, that blockading has become less safe, and requires more ships than it would have done a few years ago—and that is all. There is no call for a revolution.
The Panariellos. This curious case concerned a shipment of silver ore, made to England, under the directions of a German purchaser, by a French-registered company working in Greece. Was the ore subject to capture as on a trading with the enemy? It is well settled that an ally may be liable to have his cargo seized if he trades with the enemy;1 and the French vendors were in this case very anxious, and so far as the Criminal law goes, perfectly well entitled, to repudiate any attempt to carry on such trade, and to deny all criminal intention. But it must be obvious that the criminal penalties lately denounced against certain
1 The Neptunus (6 C. R. 403); The Nayade (4 ib., 251).
miscellaneous acts of enemy trading cannot apply to acts done by allies dehors the realm. All that persons not subject to British jurisdiction are liable to is the confiscation of their property engaged in trading with the common enemy, and in such trading, moreover, as comes within the internationally recognised prohibition. There is, or should be, no question in prize cases of what we, or any other allied State, have thought fit to prohibit under criminal penalties to our own subjects by Municipal law.
There seems considerable room to doubt whether it is "trading with the enemy,” in an international sense, to send a ship to sea laden with his goods according to his directions but not from his territory, after the outbreak of
The condemnation of this cargo of silver, destined for England, would be difficult to justify by any reference to precedent; indeed, The Samuel (4 C. R. 284) is against it. But it is further very doubtful whether the French company ought not, for the purposes of the case, to have been treated as Greek. There are numerous cases in which British subjects, established in Denmark and Portugal, have been permitted the privileges of Danes and Portuguese when this country was at war with France: The Danaous (4 C. R. 255 m); The Emanuel (1 C. R. 302); The Ann (Dods. 223) ; and The Indian Chief (3 C. R. 22).
In one American case, The San José Indiano (2 Gall. 268), an enemy carrying on business in Portugal was actually allowed the privileges of a friend. The distinction no doubt exists, that in these cases the individual was not only carrying on business, but was personally domiciled within the neutral territory; whilst in The Panariellos the company working the Greek mines may not be thought to have anything like a personal domicile there. But as a company cannot have a personal domicile at all, the mere fact that its head office may be at Paris ought perhaps not to militate against the consideration that its business is substantially Greek. It is not
necessary to argue for the extension of the rule of The Emanuel from the case of neutral domicile to the case of neutral house of trade. There are doubtless weighty arguments against such a step-it is more than doubtful how far an Englishman who remained in England, while carrying on through a manager an independent business in Portugal, would ever have been accorded the liberties of a Portuguese. But on the whole, if a company, though incorporated by French law, and possibly having an office in Paris, is substantially managed and carried on in Greece, it seems probable that the analogy of a belligerent individual domiciled and carrying on business in a neutral country would properly apply. It is possible, however, that silver ore might be regarded as contraband, and then The Neptunus (6 C. R. 403) would withdraw this protection: unless, indeed (as is submitted), the company were formed of neutral individuals and had no substantial connection with the belligerent country of its birth.
It should, however, be once more pointed out that the terms of the British Proclamation against “Trading with the Enemy” have nothing to do with the terms on which the goods, either of Allies or of British subjects, can be seized at sea. No such power of seizure is or could be conferred by the Statute and Proclamation; and although, as Lord Skerrington remarked in The Orenstein ([1915), S. C. 55), it may be very inconvenient that the two things should not coincide-penalties for trading, and capture of cargoes—it is difficult to see how, by municipal legislation, a nation can, as against its allies, confer on itself powers which by the Law of Nations it does not possess.
National Character.- The Clan Grant.