THE BRITISH BLOCKADE AND AMERICAN PRECEDENT
By Julius W. Pratt
In one vital respect the British and Allied blockade in the World War differed from all previous blockades. Whereas other blockades had shut off commerce through the ports of the blockaded belligerent, this blockade shut off also belligerent commerce through the ports of neighboring neutral countries. Of this vital difference there is no question. The question which I wish to examine in this article is as follows: Did the new type of blockade rest upon a new principle, or was it a natural development from established precedent, the application of the principle being merely modified to conform to new conditions? I think it can be shown that the latter was the case, that the British blockade policy was an almost inevitable outgrowth of earlier practice, and that Americans above all people are not in a position to find fault with it.
It was to the United States that Great Britain looked for the precedents for much of her policy. The blockade of the Southern coasts in the Civil War represented, prior to 1914, the summit of complete and successful blockade. In it the United States Government had pushed the theory of blockade almost, though not quite, to its logical conclusion. The aim of the blockade of the Southern coast was an absolute stoppage of trade. Therein it differed from the British blockade of France in the Napoleonic wars. In the latter the blockade policy had been complicated by the need of sustaining British commerce, and the government had licensed and encouraged certain forms of trade with the blockaded continent. In the Civil War no such complicating motive entered. The policy of the United States Government, therefore, presented to Great Britain the best possible example of a blockade of the sort desired.
A consideration of certain cases arising during the Civil War will show how nearly the United States had anticipated the recent British policy. The principal difficulty in enforcing the blockade arose from the proximity to the Southern coast of certain neutral territory, notably the British port of Nassau in the Bahamas, and Mexico. The former offered excellent opportunities as a base from which blockade-runners, awaiting their chance, might slip into the Confederate ports of Savannah, Charleston, or Wilmington; while from the latter, goods landed in neutral Mexican ports might be shipped overland into the Confederate State of Texas. Nassau in particular became a thriving seat of the new industry. Here the low, swift steamers engaged in eluding the blockading fleet either stopped in their passage to coal and await the most favorable time, or else picked up cargoes deposited for them by other ships from foreign ports.
To facilitate the enforcement of the blockade the Federal Government invoked the so-called "doctrine of continuous voyage," first developed by Great Britain during the Napoleonic Wars in enforcing the Rule of 1756. Under the latter rule, trade in neutral bottoms between France and her colonies, unlawful under French law in time of peace, was held equally unlawful in time of war; and the "doctrine of continuous voyage" declared that such trade was not legalized by the circumstance of the vessel's touching or even unloading her cargo at neutral ports such as those of the United States. The voyage from a French colony to France was continuous, even though the two portions of it might be made in distinct ships. The criteria determining the lawfulness of the conveyance were the true origin and the ultimate destination of the cargo.
The principle thus set up gave the United States Government a useful weapon. Acting upon it, United States cruisers seized, and United States courts condemned, ships and cargoes of neutral ownership on their way from British ports to Nassau, provided only it could be shown that the ultimate destination of the cargo was a blockaded port. If a breach of blockade was the ultimate purpose of the voyage, then the entire voyage partook of that character, and ship and cargo were subject to seizure even though their ostensible destination was Nassau, a port in neutral territory.- The Supreme Court, it is true, in reviewing the cases, modified somewhat the rigor of the prize court decisions, holding that a ship itself, though carrying cargo of unlawful destination, was not subject to seizure for breach of blockade if the ship-owners were unaware of the unlawful destination of the cargo. Such innocence removed, however, there was no doubt of the liability of both cargo and ship.
This principle was most clearly established in the cases of the Bermuda and the Springbok. The Bermuda (3 Wall. 514ff.), a vessel ostensibly of British ownership, had sailed in 1862 from Liverpool for Bermuda, and on April 26 was captured by a Federal cruiser while proceeding from the latter port to Nassau. Vessel and cargo were condemned by the Prize Court, and in 1865 the case came to the Supreme Court by appeal. The finding of the lower court was affirmed, first on the ground of the strongest presumption of enemy ownership and obvious bad faith in the ship's papers. But these were not the only grounds for condemnation. "What has been already adduced of the evidence," said the court, "satisfies us completely that the original destination of the Bermuda was to a blockaded port; or, if otherwise, to an intermediate port, with intent to send forward the cargo by transshipment into a vessel provided for the completion of the voyage It is quite clear to us that…the voyage,
begun at Liverpool with intent to violate the blockade, delayed at St. George's for instructions from that firm [John Frazer & Co.], continued toward Nassau for the purpose of completion from that port to a rebel port, either by the Bermuda herself or by transshipment, was one voyage from Liverpool to a blockaded port, and that the liability to condemnation for attempted breach of blockade was, by sailing with such purpose, fastened on the ship as firmly as it would have been by proof of intent that the cargo should be transported by the Bermuda herself to a blockaded port, or as near as possible, without encountering the blockading squadron, and then sent in by a steamer, like the Herald, of lighter draft or greater speed." Therefore, "both vessel and cargo, even if both were neutral, were rightly condemned."
The circumstances in the case of the Springbok (5 Wall, 1ff.) were somewhat different. This vessel sailed from London in December, 1862, and, like the Bermuda, was captured on her way to Nassau by a United States cruiser. She was of bona fide British ownership; her papers were regular and genuine-and showed a neutral destination, Nassau; her owners "did not appear to have any interest in the cargo, nor was there any proof that they knew of its alleged unlawful destination." On these grounds the ship, condemned by the lower court, was ordered restored to its owners. As to the cargo, the Supreme Court held that, "contraband or not, it could not be condemned, if really destined for Nassau and not beyond, and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports were under blockade." The court then proceeded to deduce from the character of the cargo, a part of which was contraband peculiarly fitted for the use of the Confederate armies, that the destination was indubitably a blockaded port, and that the owners of the cargo purposed to transship in into some vessel better fitted than the Springbok for blockade-running.
"Upon the whole case," the opinion concluded, "we cannot doubt that the cargo was originally shipped with intent to violate the blockade; that the owners of the cargo intended that it should be transshipped at Nassau into some vessel more likely to succeed in reaching safely a blockaded port than the Springbok; that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of parties, one voyage; and that the liability to condemnation, if captured during any part of that voyage, attached to the cargo from the time of sailing."
Thus was established the principle that a belligerent might seize neutral cargoes in neutral ships sailing between neutral ports, provided it could be shown with reasonable certainty that the ultimate destination of the cargoes was in reality a blockaded port of the enemy. If the owners of the ship were privy to the purpose of the cargo, then the ship too was liable to condemnation for breach of blockade.
One further step, however, the United States declined to take. If the subsequent carriage of the goods from neutral to enemy territory was not through a blockaded port but overland, then there could be no interference with neutral ship or cargo, contraband only excepted. This position was declared in the case of the Peterhoff (5 Wall. 28ff.). The latter was a British merchant steamer, captured in 1863 en route from London to Matamoras. Mexico. The town of Matamoras lay on the southern bank of the Rio Grande, opposite Brownsville, Texas. It became, during the war, the seat of a considerable trade with Texas, receiving not only from Europe but from United States ports cargoes of whose enemy destination there could be little doubt. The holding of the court in the Peterhoff case came under two heads: (1) A small portion of the vessel's cargo was absolute contraband; this was condemned as destined unquestionably for the Confederate forces in Brownsville. (2) On the other hand, it was held "that neutral commerce with Matamoras, except in contraband, was entirely free"; that "neutral trade to or from a blockaded country by inland navigation or transportation" is lawful; and, "therefore, that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, violated no blockade, and cannot be declared unlawful." "Such trade," said the court, "with unrestricted inland commerce between such a port and the enemy's territory, impairs undoubtedly and very seriously impairs the value of a blockade of the enemy's coast. But in cases such as that now in judgment, we administer the public law of nations, and are not at liberty to enquire what is for the particular advantage or disadvantage of our own or another country."
In delivering this opinion Chief Justice Chase took high and admirable ground. The law of nations was to be administered without regard to national needs or national danger. In weighing his opinion, however, two facts should be borne in mind. First, the case did not come before the Supreme Court until 1866, when the war had been ended some twenty months. Second, the situation at Matamoras and Brownsville had never presented any serious danger to the nation. Brownsville was far removed from the actual scene of war and was not even connected by railroad with more vital parts of the Confederacy. In fact, before the date on which the Peterhoff was sent to the Prize Court, Federal control of the Mississippi had practically confined the war to the southeastern theater and made impossible any large scale transportation from west to east. It was inconceivable that the importation of supplies through Mexico and Texas could have any decisive effect on the outcome of the war. Had communications between Virginia and Texas been in any way analogous to those between Prussia and Holland or Denmark, and had the resulting danger been still in existence when the case was decided, we may well question whether national advantage would have been given so low, the law of nations so high, a place in the decision.
European opinion upon the Bermuda and Springbok cases is of much interest. Continental nations heard the decisions with the strongest disapprobation, which was frankly voiced by Dutch, German, and French writers. " It matters not," said Count van Lynden van Sandenburg, Minister of State of the Netherlands, in speaking of the Springbok case, " who the owners of the cargo may be, to what nationality they may belong, whether they are English, French, Dutch, or even American. A great principle is at stake, and the only satisfactory and conclusive proof that the United States Government can give, that it at length abandons and denounces a doctrine destructive of neutral trade, and a judgment pronounced in error, will be the awarding full compensation to the despoiled owners of the cargo, the long-suffering victims of a flagrant miscarriage of justice."
The German view was expressed by Professor Gessner, Imperial Councilor of Legation at Berlin: "The doctrine, however, upon which the Supreme Court of the United States has condemned the entire cargo of the Springbok, a neutral vessel, on her way to a neutral port, is quite monstrous, more especially as the court acquits that vessel of any intention to violate the blockade. If such a doctrine were carried to its logical conclusions, and were enforced by a belligerent great maritime power as rigorously as it has been by the United States, all neutral property on the high seas might be treated as lawful prize of war."'
"The decision," wrote M. Fauchille, "rests on the fiction that though the vessel in which the goods are to be carried is changed at the intermediate port, yet the voyage is the same; and the reason would apply no matter how many changes the goods might be subjected to, or how many successive neutral ports they might pass through. But international law repudiates such fictions, international law being eminently a law based on common sense. The fiction in the present case imposes on neutral commerce restrictions irrationally onerous…The theory of continuity of voyage destroys the freedom of the seas, and the commercial freedom of neutrals."
A more authoritative condemnation of the principle underlying the Springbok decision was the unanimous pronouncement of the Maritime Prize Commission, nominated by the Institute of International Law to frame a scheme of international maritime prize law, and embracing jurists from Belgium, Holland, Germany, England, Russia, Italy, and France. The commission declared, in part:
That the theory of continuous voyages, as we find it enunciated and applied in the judgment of the Supreme Court of the United States of America, which condemned as good prize of war the entire cargo of the British bark Springbok (1867), a neutral vessel on its way to a neutral port, is subversive of an established rule of the law of maritime warfare, according to which neutral property on board a vessel under a neutral flag, whilst on its way to another neutral port, is not liable to confiscation by a belligerent as lawful prize of war; that such trade when carried on between neutral ports has, according to the law of nations, ever been held to be absolutely free, and that the novel theory, as above propounded, whereby it is presumed that the cargo, after having been unladen in a neutral port, will have an ulterior destination to some enemy port, would aggravate the hindrances to which the trade of neutrals is already exposed, and would, to use the words of Bluntschli, "annihilate" such trade, by subjecting their property to confiscation, not upon proof of an actual voyage of the vessel and cargo to an enemy port, but upon suspicion that the cargo, after having been unladen at the neutral port to which the vessel is bound, may be transshipped into some other vessel and carried to some effectively blockaded enemy port…
That, furthermore, the result would be that, as regards blockade, every neutral port to which a neutral vessel might be carrying a neutral cargo would become constructively a blockaded port if there were the slightest ground for suspecting that the cargo, after being unladen in some neutral port was intended to be forwarded in some other vessel to some port actually blockaded.
Any one who compares the above comments with the course of events in the World War will be struck by the accuracy with which the writers foretold the misfortunes for neutral shipping lying in the germ in the American decisions. But for England's unforeseen waiving of the right of confiscation for attempted violation of blockade, the paragraphs quoted forecast the Allied policy with much precision.
But while these warnings were being voiced by Continental jurists and an English authority here and there, the British Government was quietly acquiescent. Although British merchants and ship-owners were the chief losers by the decision of the American courts, the British Government not only declined to take diplomatic action for their relief, but repeatedly declared its satisfaction with the American decisions—even with the decisions of the American lower courts in the Springbok aid Peterhoff cases, decisions later held in part unwarranted by tit Supreme Court." The explanation appears simple enough. Tit American decisions not only harmonized in their general spin with earlier British theory and practice, but were as welcome a great naval power as they were distasteful to the nations with large commerce and inferior navies. Great Britain, we may purpose, was well satisfied to see the United States establish pm. dents which she herself might one day find useful.
The question of blockade, as distinct from carriage of contraband, was not raised in the South African War, and not with the London Naval Conference in 1908-09 was an attempt made: settle with finality the rights of a blockading belligerent.
Although, as we have seen, Great Britain acquiesced in the American application of the doctrine of continuous voyage, Sir Edward Grey in his instructions to Lord Desart, British representative at the Naval Conference, took exception to that application. "For the purpose of blockade," he wrote, "…the destination justifying capture is that of the ship, and not of the cargo; and a vessel whose final destination is a neutral port cannot, unless she endeavors, before reaching that destination, enter a blockaded port, be condemned for breach of blockade, although her cargo may be earmarked to proceed in some other way to the blockaded coast. His Majesty's Government belief that all the other Powers will probably be in agreement on the point, unless the United States were to maintain that the condemnation pronounced by their Supreme Court in the well-know case of the Springbok extended the application of the doctrine of continuous voyage to breaches of blockade, and rendered the vessel carrying a cargo destined for a blockaded port liable to seizure, even though she herself was not proceeding to such ports. It is, however, exceedingly doubtful whether the decision of Supreme Court was in reality meant to cover a case of blockade-running in which no question of contraband arose. Certainly if such was the intention, the decision would pro tanto be in conflict with the practice of the British courts. His Majesty's Government see no reason for departing from that practice, and you should endeavor to obtain general recognition of its correctness."
When England was thus ready to abandon the precedents established by American courts—precedents which continental nations had always condemned—it was to be expected that the Naval Conference would discard them altogether. This the conference took pains to do. Three separate articles of the Declaration of London run counter to the doctrine of continuous voyage, or to its logical consequences, as applied to blockade. "A blockade," declared Article I, "must be limited to the ports and coasts belonging to or occupied by the enemy." "The blockading forces," said Article 18, "must not bar access to the ports or to the coasts of neutrals." And Article 19 declared further that "Whatever may be the ulterior destination of the vessel or of her cargo, the evidence of violation of blockade is not sufficiently conclusive to authorize the seizure of the vessel if she is at the time bound toward an unblockaded port."
The clauses quoted embody a distinct victory for continental nations—particularly for Germany, England's chief rival on the seas. They indicate that the Liberal government which sanctioned them was less clearly aware of true British interests than had been the government of Lord Russell's time, which, as shown above, had declined to interfere with the American practice. There was no lack of opposition to the declaration. The case against it, or against this portion of it, was succinctly stated in a resolution adopted by the Chamber of Shipping of the United Kingdom. The advantages of the declaration to neutral shipping, declared the resolution, " are far outweighed by the disadvantageous position in which it would leave this nation in regard to the vital question of the importation of food in the event of our being one of the belligerents. If we should be at war with a continental nation, foodstuffs coming to our shores in neutral vessels would be liable to interference and possible destruction, while our enemy would be at liberty to import foodstuffs even for the express purpose of supporting his army, by the simple device of having them transported in neutral ships to neutral ports and then importing them overland."'
The bill for giving effect to the Declaration of London, though sponsored by the government and passed by the House of Commons, was eventually defeated in the House of Lords. At the outbreak of the war in 1914, therefore, the British Government faced three possible courses. First, it might put into effect the provisions of the declaration, which had received its own assent five years previously. Second, it might fall back upon American precedent which had been accepted by Great Britain in the '60's but in part repudiated in recent years. Third, taking the American usage as its starting point, it might carry belligerent claims to a fullness as yet unapproached. What, as regards blockade, would be the practical working of each of these three courses?
If the first course were adopted and the Declaration of London taken as a guide, England's ability to halt German trade would be severely limited. All German ports, of course, might be blockaded, hermetically sealed if England had the power. This would inflict considerable hardship on Germany, but would leave untouched all trade (except in absolute contraband) which Germany might deflect through neutral ports and thence in neutral bottoms. Germany's position gave her excellent facilities for trade of this sort, which could be directed through Dutch or Danish ports or across the Baltic and by way of Sweden and Norway. Obviously there could be no effective stoppage of German trade by this means.
If, in the second place, England adopted American precedent as her rule, her position would be not greatly improved. The only type of case exactly covered by the American usage would be that in which a neutral vessel was found with goods for Amsterdam, let us say, which it could be shown were later to be carried by water to a blockaded German port. If the carriage were to be by land, then the principle laid down in the Peterhoff case would prevent any interference.
The only course, then, which gave promise of large results was an extension of the American policy. The decisions in the cases of the Bermuda, Springbok, and Peterhoff had established the ultimate rather than the immediate destination of a cargo as the criterion of its character, but had clung to the old conception of a blockade as applicable only to ports and seacoasts. That is, an enemy destination was legitimate for non-contraband goods provided the last leg of the journey was to be by land. The great difficulty of land transport from Mexico had made the distinction easy to observe during our Civil War. The World War afforded the first case in which the development of railway transportation threatened to nullify the effects of a seacoast blockade. In the face of this new situation, could the old distinction be maintained?
Events answered in the negative. For some months, indeed, England abstained from any kind of blockade, declaring a tentative adherence to the provisions of the Declaration of London and relying, for the stoppage of German trade, upon the shutting up of German ships and wide extension of the contraband lists. How long, barring special provocation from Germany, she might have pursued this policy it is impossible to say, but she was quick to take advantage of the initiation of the submarine blockade as a justification for drastic change in her own methods.
On March 1, 1915, a note to neutral powers declared that henceforth the British and French Governments would "hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation." "The significance of this note was further clarified by an Order in Council of March 11." "No merchant vessel which sailed from her port of departure after the 1st March, 1915, shall be allowed to proceed on her voyage to any German port No merchant vessel that sailed from any German port after the 1st March, 1915, shall be allowed to proceed with any goods on board laden at such port…Every merchant vessel which sailed from her port of departure after the 1st March, 1915, on her way to a port other than a German port, carrying goods with an enemy destination, or which are enemy property, may be required to discharge such goods in a British or allied port." Such goods, if not contraband, it is provided, may be restored at the order of the Prize Court and on the terms it indicates, to their proper owners.
The declaration of this policy brought protests from neutral governments. Replying to that of the United States. Sir Edward Grey, in a note of July 23, 1915, stated the justification of the British Policy.
His Majesty's Government are unable to admit that a belligerent violates any fundamental principle of international law by applying a blockade in such a way as to cut off the enemy's commerce with foreign countries through neutral ports if the circumstances render such an application of the principles of blockade the only means of making it effective…A blockade limited to enemy ports would leave open routes by which even kind of German commerce could pass almost as easily as through the ports of her own territory…It seems accordingly that, if it be recognized that a blockade is in certain cases the appropriate method of intercepting the trade of an enemy country, and if the blockade can only become effective by extending it to enemy commerce passing through neutral ports, such an extension is defensible and in accordance with principles which have met with general acceptance…
What is really important in the general interest is that adaptations of the old rules should not be made unless they are consistent with the general principles upon which an admitted belligerent right is based. It is also essential that all unnecessary injury to neutrals should be avoided With these conditions it may be safely affirmed that the steps we are taking to intercept commodities on their way to and from Germany fully comply We are interfering with no goods with which we should not be entitled to interfere by blockade if the geographical position and the conditions of Germany at present were such that her commerce passed through her own, ports. We are taking the utmost possible care not to interfere with commerce genuinely destined for or proceeding from neutral countries. Furthermore, we have tempered the severity with which our measures might press upon neutrals by not applying the rule which was invariable in the old form of blockade, that ships and goods on their way to and from the blockaded area are liable to condemnation."
It is instructive to compare this argument with the opinion of Chief Justice Chase in the Peterhoff case, as quoted above "Such trade," he had said, "with unrestricted inland commerce between such a port and the enemy's territory, impairs undoubtedly and very seriously impairs the value of a blockade of the enemy's coast. But in cases such as that now in judgment, we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country." The idealist, no doubt, will exclaim that Chase is right, Grey Jesuitical. Yet let remember two things. First, as has already been remarked, circumstances made it easy for Chase to be virtuous in the upholding of international law where it made against his country's interests: Grey's argument was written in a time of the gravest national peril. Second, can any one deny that international law, like municipal law, is fluid, changing with changing conditions? The importance of the changing conditions here involved had been pointed out in an earlier note of Sir Edward Grey's: "The advent of steam power has rendered it as easy for a belligerent to supply himself through the ports of a neutral contiguous country as through his own, and has therefore rendered it impossible for his opponent to refrain from interfering with commerce intended for the enemy merely because it is on its way to a neutral port." Let us suppose, first, that transportation from Matamoras to the heart of the Confederacy had been as quick and easy as from Amsterdam to the heart of Germany; second, that our government in 1862 had been, like England in 1915, in a position to back up its policy with ample force against protesting neutrals—is there any doubt that we should have carried the doctrine of continuous voyage as far as England carried it in the World War?
The policy thus announced and explained England and her allies carried out with little change to the close of the war. On July 7, 1916, the Declaration of London, which had been tentatively accepted at the beginning of the war and widely modified thereafter, was formally set aside, and it was declared to be the intention of His Majesty's Government "to exercise their belligerent rights at sea in strict accordance with the law of nations." Among the principles which England undertook to recognize as a part of the law of nations, as declared in this same Order in Council, was the following: "The principle of continuous voyage or ultimate destination shall be applicable both in cases of contraband and of blockade."
The rule thus stated might be taken as almost an epitome of American Civil War theory and practice. Its one point of advance was extremely important but entirely logical. We had declined to interfere with trade passing into the Confederacy by way of Mexico. England not only interfered with but practically destroyed trade passing into Germany by way of Holland, Denmark, Norway, and Sweden. England took the one step we had declined to take. But in taking it she based her policy upon our Civil War precedent quite as logically as the latter had been based upon British precedent in the Napoleonic Wars. Taking the British doctrine of continuous voyage, which originally had not applied to blockade at all but to prohibited trade between a belligerent nation and her colonies, we made of it a justification for seizing ships and goods bound for a, neutral port, Nassau, whence the goods were to be transported by sea to a blockaded port. At Matamoras we stumbled at the threshold of a much more drastic application of the doctrine, stumbled and then drew back. In our seizure of the Peterhoff we came strikingly near the theory that we might seize neutral ships and goods bound for a neutral port whence the goods were to be transshipped by land to a belligerent lying behind a blockaded coast. We did not declare, we ultimately repudiated, that doctrine. It remained for the British lo carry the doctrine of continuous voyage to its logical conclusion, that is, to apply it not only to goods destined to pass eventually through the blockaded ports of an enemy, but to goods destined to pass the enemy border at any point whatsoever. The stone which our builders rejected became the corner stone of the British blockade.
?
?
?
?
?