SearchScriptoriumArchiv IndexSponsor

Part I

Chapter 1: Introductory

Early British maritime practice, its affiliations to the civil law, how far it was influenced by treaties. – The principal doctrines applied in British courts of admiralty. – Why British rules of maritime capture were disliked by continental powers. – What disputed points were settled by the declaration of Paris. – Why the naval operations of the American civil war influenced the existing law and practice. – What new rules of capture were elaborated in the American courts. – Why British doctrines of maritime capture became unsteady during the nineteenth century. – British policy during the fifty years preceding the second Hague conference. – What doctrines were examined and settled at the second Hague conference. – What rules of neutral conduct were examined and settled by the conference. – The recommendation that an international prize court be established; its implications. – Continental and British doctrines on the law of blockade. – The law of blockade as established by the declaration of London. – Continental and British doctrines on the law of absolute contraband. – The law about conditional contraband was vague and unsettled. – Why the treatment of conditional contraband had been an important matter in earlier wars. – The differences between British and continental practice about conditional contraband. – The compromise on conditional contraband, and the rules established about neutral prizes. – The declaration of London and the practice of interception. – The false assumptions made by those who criticised the declaration of London. – Why old continental states were little damaged by maritime attack. – That the declaration did cause reasonable misgivings. – Why the declaration was not ratified. – The Board of Admiralty and the declaration of London. – Why economic coercion was a secondary object in our naval war plans. – The Admiralty issue new war orders which contain an economic object. – Enquiries into Germany's dependence upon overseas commerce. – The Admiralty's estimate of the consequences of economic pressure on Germany. – The Consuls disagreed with the Admiralty, who adhered to their opinions. – The Admiralty prepare new war orders in which the blockade of Germany is contemplated. – The naval and military war plans of the day are found to be incompatible. – Misgivings about the latest naval war orders. – In the war orders finally issued to the fleet the blockade of Germany is abandoned. – The final preparations for economic warfare, the significance of what was done.

It is usual to introduce the history of an operation of war by an enquiry into its causes and origins; but, if a history of the economic campaign against Germany were preceded by a review of its first beginnings, then, this opening survey would be carried into the most distant epochs of our maritime history; for every war in which we have been engaged has obliged our statesmen to make adjustments between the conflicting demands of law and policy; and these manipulations, conducted during four centuries of war, by land and by sea, and recorded in the archives of our departments of state, constitute the store of knowledge that was transmitted to those who conceived and executed the blockade of Germany. The task of discovering what were the true beginnings of the operation must, therefore, be left to another historian, and it must here suffice to introduce the subject by a review of the circumstances in which British rules of maritime capture were digested into a code of law; and by a further review of the conferences and state councils in which the interception of Germany's sea-borne commerce was either contemplated or foreseen.

i) Early British maritime practice, its affiliations to the civil law, how far it was influenced by treaties

The earliest courts of admiralty appear to have been little but local commissioners for settling questions relating to salvage; for selling goods and ships captured as acts of war and reprisal, and for apportioning the proceeds between the captor, the crown and the admiral. In the first part of the sixteenth century, however, these courts were virtually superseded by a body known as the high court of admiralty, which was empowered to judge whether captures were valid, and to stop any sale of captured goods, until judgement had been given. The court thus constituted had to decide between persons of different nationalities, and so collected to itself a number [2] of practitioners who were learned in the civil and the canon law, for these were then deemed a universal code of jurisprudence. Later, these practitioners became a collegiate body, known as doctors' commons, and it was in their archives - largely dispersed at their dissolution - that a great body of precedents was collected.1

In the seventeenth and eighteenth centuries, the body of rules, which was steadily accumulating in doctors' commons, was considerably altered and expanded by the treaties of commerce that were negotiated between Great Britain and other maritime powers. It then became customary to insert contraband lists and free lists in these treaties, and to state in them how the two signatories would deal with enemy property captured at sea; that is, whether they would observe a very ancient rule that enemy's property could be captured wherever it was to be found, or whether one of the two signatories, when neutral, should have a right to convey enemy property to its own ships.2 These treaties were as much part of international maritime law as the rules and precedents collected in doctors' commons, and were binding upon the admiralty court. Nevertheless, the lawyers who decided and pleaded in prize cases held, consistently, that their own rules were the orthodox law of nations, and that these treaties - when they differed from their own precedents - were specific abrogations of universal law.

The lawyers who were thus determined to administer international law - as they understood it - endeavoured, naturally enough, to make themselves as free of the executive as possible. How far they succeeded is a matter upon which historians must decide. The position at the end of the eighteenth century was, roughly, that admiralty judges and doctors' commons had a long tradition of independence behind them, in that some of their predecessors had more than once declared acts by the executive to be illegal, and had refused to administer them. In addition, the maritime wars of the eighteenth century had very much increased the volume of prize court cases, which were decided by rules that were in no way influenced by common and statute law. On the other hand, the court's commission was from the crown, in consequence of which, all orders in council relating to captures and to maritime cases were binding. Lord Stowell, the greatest of all the admiralty judges, explained, at great length, and with a masterly display of ambiguous language, that there could be no possible conflict between the orders of the crown and the body of international law which he administered. His predecessors had not found it so easy to reconcile the two.

It was during the long war against revolutionary France and the Napoleonic empire that cases decided in the admiralty court were first properly reported, and the judgments thus recorded have ever since been the substance of British maritime law. When, in 1908, the British crown lawyers drafted their statement of the law of contraband, of blockade and of destination, they relied almost entirely upon the judgments given between 1794 and the Peace of Paris (1814). It will therefore be proper to review this law briefly, without introducing those niceties that only trained lawyers are competent to explain.

ii) The principal doctrines applied in British courts of admiralty

The bare principles of international maritime law are no more than a reasonable compromise between a belligerent's contention, that he should be permitted to stop his enemy's commerce, wherever it is to be found, and the neutral's rejoinder, that he is no one's enemy, and that he has a right to trade and traffic with any country with which he is at peace. The compromise struck by the jurists of the sixteenth and seventeenth centuries has been observed, with a few slight variations, to the [3] present day; it is, that the right to stop an enemy's communications with the outer world, and to seize all ships and cargoes entering that enemy's harbours, is granted only, if those harbours are blockaded, or watched, by an impassable cordon. If a belligerent does not establish this cordon, and contents himself with chasing and intercepting an enemy's commerce upon the open sea, his powers are more circumscribed. He is then free to stop any cargo that may assist his enemy to prosecute the war, and he is at liberty to seize any property afloat that really belongs to his enemy; all other kinds of commerce must be allowed to go free.

These principles have never been seriously disputed; the courts of the great maritime powers have, however, interpreted them differently, and naval operations have influenced particular applications of these universal principles. At the close of the Napoleonic wars, the British courts had a greater body of precedents to consult than the courts of any other power, and as our courts, though by no means independent of the executive, were far more so than the courts of France and Spain (which were mere departments of state) it was natural, that British lawyers should often claim, that British practice was a true law of nations, untainted by policy or national interests. At the beginning of the nineteenth century the British rules on the four main heads: blockade, contraband, enemy property, and the nationality of vessels were roughly these.

(a) Blockade. British jurists agreed, that no place could be called blockaded, unless it were watched by a force of warships, which cut all communication between the blockaded harbour and the outer oceans. They maintained, moreover, that the officer imposing this blockade could only exercise his right to confiscate all ships and cargoes entering or leaving the beleaguered harbour after proper notification had been given by himself or his government. This blockade was, however, recognised to be purely maritime, and if goods were taken from the blockaded town and carried by land to an adjacent harbour - which was not being blockaded - then, those goods could be passed freely into ordinary commercial circulation. In the words of Lord Stowell:

      The blockade of Amsterdam, which was imposed on the part of this country, was from the nature of our situation a mere maritime blockade effected by a force operating only at sea. As far as that force could be applied, it was indubitably a good and legal blockade, but as to interior navigation how is it a blockade at all? Where is the blockading power?...... The court cannot...... take upon itself to say that a legal blockade exists where no actual blockade can be applied. In the very notion of a complete blockade it is included, that the besieging force can apply its power to every point of the blockaded state. If it cannot it is no blockade of that quarter where its power cannot be brought to bear......3

(b) Contraband. The bare principle, that contraband goods were all materials useful to armed forces, was not disputed; but no British government had ever attempted to draw up a universal list of contraband stores. As a consequence, contraband articles in (say) an Anglo-Swedish treaty were not all included in the treaties with Denmark, Holland and Portugal. The governing principle was, that, if the country with which the treaty had been negotiated, exported some article that was particularly useful to our maritime rivals, such as pitch, tar and ship timber, then, those particular articles were declared contraband in that particular treaty. Notwithstanding these differences, however, the contraband lists of those days were tolerably uniform, and were, in fact, a quartermaster's list of army stores. The goods thus described could all be seized and confiscated by vessels which were not imposing a blockade; but only if they were being consigned to an enemy. At the end of the French wars, British courts did not admit that contraband could be seized if it were consigned to a neutral harbour which bordered on an enemy:

      Goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful...... The rule respecting contraband...... is that the articles must be taken in delicto in the actual prosecution of a voyage to an enemy's port.4

[4] (c) Enemy Property. British jurists maintained that the right to seize an enemy's goods was so to speak, the first consequence of a state of war:

      When two powers are at war, they have the right to make prizes of the ships, goods and effects of each other on the high seas. Whatever is the property of an enemy may be acquired by capture at sea, but the property of a friend cannot be taken provided he observes his neutrality. Hence the law of nations has established:
      That the goods of an enemy on board the ship of a friend may be taken;
      that the lawful goods of a friend on board the ship of an enemy ought to be restored.5

The tests of enemy property in ships or goods were these:

Enemy cargoes were judged to be so by the following rules: first, all goods that were the produce of an enemy's soil, or the output of his manufactures were deemed enemy goods for so long as they were afloat, and only became neutral goods when the neutral consignee had received, and reduced them into possession; secondly, all goods consigned to an enemy were deemed enemy goods, while they were afloat, notwithstanding that the enemy consignee had not yet received them, or reduced them into possession.6

(d) The nationality of a ship found on the high seas. Certain forms called variously sea-briefs, lettres de mer, passes, or sea passports, were inserted in the commercial treaties that were still effective, and it was from the statements recorded in these documents that a ship's nationality was determined. If these papers were defective, the residence of the ship's owner was the decisive test. In the first decade of the nineteenth century, this residence test had practically superseded the other, as all or nearly all, the old treaties had been made inoperative by the universal war.7

iii) Why British rules of maritime capture were disliked by continental powers

Although Great Britain was recognised to have protected the usages and customs of Europe by her unflinching resistance to the Napoleonic empire, British practices at sea had by no means been universally applauded during the long and bitter struggle; and when the general peace was firmly established, continental governments were anxious that the measures taken at sea, during the past twenty years, should not be regarded as precedents. In the first place, there was a general dislike of economic pressure exerted from the sea: according to expert opinion, no country could be reduced by attempting to suppress and confiscate its imports and exports, and the thing, if attempted, was unusually oppressive to neutral commerce; for it was done by disregarding the old rules about blockades and sieges, and by vesting squadrons all over the world, with the rights ordinarily exercised by ships engaged in a regular investment. There was force in this contention, and it was natural, that continental states should have regarded the maritime contest that terminated in 1814 as a progressive abrogation of rules that had protected neutral commerce for a century previously, and should have been proportionately anxious to reinvigorate the older and more temperate procedure. This, in a general way, may be said to have been the motive force of those tendencies that grew in strength as the century advanced. If described in more precise terms, the tendency may be said to have been a movement towards codifying the law of blockade, and the law with regard to enemy property; for it was on these two points that criticism of British practice was chiefly focussed.

With regard to the law of blockade, it is unquestionable that maritime powers have attempted to isolate an enemy, without blockading its ports, whenever they have considered that they were engaged in an exceptional struggle. The attempt was first made in 1689, and although it was found quite unworkable and was abandoned, [5] the excuse given established something of a precedent. The most celebrated lawyer of the day, Samuel Puffendorf, argued stoutly, that powers fighting for the religious liberty of Europe were not bound to observe the old rules of maritime capture. The same excuse was revived at an early period of the war with France, when it was maintained that extraordinary rigours were justifiable against a regicide government, who were themselves contemptuous of the law of nations. The struggle, therefore, opened with an order, that all corn and grain cargoes were to be confiscated if consigned to France. In the Mediterranean, Admiral Hood ordered that all neutral vessels bound to France were to be seized. From the outset, therefore, we did vest our naval forces with some of the powers that are ordinarily exercised only by blockading squadrons.

Also, our practice with regard to enemy property was thought by neutrals to be a policy of blockading without imposing blockades. If our practice were tested solely by logic and by precedents, the case in support of it was very strong: for, if armed forces may seize and hold an enemy's territory, in order to deprive him of the enjoyment of it, then, an enemy's commerce - that is his maritime property - may obviously be treated similarly. It was, therefore, not surprising that our rule was to be found in all the old codes of law, and in a number of maritime ordinances issued by the French and Spanish monarchies. Why then, was this doctrine, which seems to have been practised almost universally until about 1750, so fiercely criticized a generation later? In the first place, it must be remembered that the eighteenth century was a period of great improvement in naval design. At the beginning of the century, fleets manoeuvred spasmodically, at known seasons of the year, and then, like armies, retired into winter quarters, after which a small nucleus was left to patrol the more important strategic points. At the close of the century, squadrons were keeping great zones of water under continuous observation. This did not damage the logic of our doctrine about enemy property, but it can easily be seen that it made practice far more rigorous and oppressive.

It has already been explained that goods, which were the produce of an enemy's soil, or the produce of his manufactures, were judged enemy goods for so long as they were afloat; and that, conversely, neutral produce, when consigned to an enemy, was judged enemy property, even though it had not been delivered to him at the moment of capture. It will be understood, therefore, that when this rule was being acted upon by a fleet that was permanently holding the most important strategic points in the Channel, the Bay, the East and West Indies, neutral carriers regarded it less as a rule of war than as a declaration of policy, the policy being that our enemy's import and export trades were to be stopped. Neutrals could claim moreover that, even though strong precedents could be quoted in support of the rule, treaties which embodied the opposite rule: free ships, free goods, were becoming numerous enough to constitute precedents for a new and more liberal doctrine. Few controversies have excited more passion than this; for men of the greatest learning still write heatedly about it. If, however, the matter be judged dispassionately, it has to be admitted, that, as we ourselves have claimed, and still do claim, that the laws of maritime warfare are an organic growth, which must be adjusted to what is called the nature of things, so, we cannot complain if this same argument occasionally damages our own contentions. The British rule about enemy property was, in fact, the product of a bygone age; it was of Mediterranean origin, and was first practised when naval operations were conducted spasmodically by galleys, in waters where enemy property was, as often as not, the property of Turks and infidels, against whom any severity was deemed proper. The rule became intolerable, when the approaches to the great harbours of Europe were patrolled, for months on end, by three deckers and frigates, and when the overseas trade of Europe was steadily increasing.

iv) What disputed points were settled by the declaration of Paris

These differences in British and continental practice, or to speak more accurately, these sources of political friction, were obliterated by the declaration of Paris (1856); for, by that instrument, the signatories8 bound themselves to observe the following rules:

      (i) Blockades in order to be binding must be effective, that is to say maintained by a force sufficient really to prevent access to the coasts of the enemy.

This rule virtually declared that a large part of the measures taken during the Napoleonic wars should not constitute precedents. The rule was, however, as condemnatory of Napoleon's decrees, as of our own extraordinary acts of coercion.

      (ii) The neutral flag covers enemy goods with the exception of contraband of war. Neutral goods, with the exception of contraband of war are not liable to capture under the enemy's flag; and,
      (iii) Privateering is, and remains abolished.

The anger excited by this declaration is not even now extinguished. In many books quite recently compiled, it has been represented as a cowardly surrender, and in the year 1927 Lord Wester Wemyss moved in the house of lords, that Great Britain should denounce the declaration, and return to her older practices. The answer to this is, that Lord Clarendon, who signed the declaration, judged that we should have all mankind against us, unless we altered our practice; and he, being foreign secretary was the person best qualified to judge.

With these exceptions, the declaration did not alter the British rules about contraband, blockade and destination, and there were still many points of difference between our rules, and those judged good law by continental jurists. The differences still unresolved were however legal differences, which did not impinge upon the great objects of maritime policy.

v) Why the naval operations of the American civil war influenced the existing law and practice

British doctrines about maritime capture were not specifically altered or enlarged during the next sixty years. They were, nevertheless, exposed to certain influences, which affected later interpretations of doubtful points, and the source and strength of these influences must now be briefly examined.

First and most important, during the American civil war, the naval forces of the union blocked up all the coasts and harbours of the southern confederacy. Every contemporary observer was satisfied, that this stopping of the southern commerce broke the resistance of the rebel states; and that, had the blockade never been imposed, the military campaigns would, in all probability, have been indecisive.9 This was, in itself, a novelty; for, although our naval operations in the eighteenth century had given us certain strategical advantages in the colonies, which we converted into commercial profit later on, we had no knowledge or experience of a naval operation that, by itself, reduced an enemy to terms.

When judging captures made by the federal navy, the American courts had relied, in the main, upon British case law. Lord Stowell's judgments were most often quoted in support of contending arguments, and the American judges always spoke of them as authoritative. The American courts had, however, found the body of English law defective in one respect, and had been obliged to enlarge it for the following reasons.

[7] If anybody studies the cases recorded in the great British collections - Robinson, Dodson, Edwards, Acton and the rest - he can hardly fail to see, that during the Napoleonic wars, our courts were investigating particular incidents of a petty commercial traffic, with no central organisation. The names of masters and of owners - who were mostly Swedes, Danes and Hanseatic Germans - appear and disappear, but hardly ever occur twice. The court had little or no concern with their occupations and places of business, unless the case being considered turned round a fictitious sale; and Lord Stowell was rarely, or never, obliged to consider whether such persons as Hans Gorgensen of the Sarah Christina, or Jacob Kuyp of the Neptunus, habitually, and as a matter of business, broke blockades and supplied the enemy with contraband.10

The contraband traffic that was stopped by the federal navy was better organised. It was then a matter of common knowledge: that certain business houses had established themselves in London, Liverpool and the British West Indies, for the sole purpose of supplying the southern states; that masters with special knowledge of the business were in their employ; and that a fleet of ships adapted to the trade was based on Nassau and Bermuda. The importance of all this can only be fully appreciated by studying the letters that were exchanged between the federal navy department and the blockading forces. The names of the contraband companies do certainly occur in the American prize cases; and nobody can read them without becoming familiar with Frazer Trenholm's business, or the peculiar aptitudes of Captain Westendorff of the Bermuda. These references to contraband firms and blockade running captains are, however, mere extracts from a large official correspondence between American consuls, American naval officers, and the officials of the navy department, who were all striving, with the greatest energy and persistence, to keep firms, ships and captains under observation.

vi) What new rules of capture were elaborated in the American courts

The consequence of all this was, that the American courts felt obliged to enlarge an old British doctrine considerably. In British practice, the offence that justified the seizure of a neutral was not quite the same for a neutral engaged in blockade running, and a neutral engaged in contraband traffic. In the case of a blockade runner, an intention to slip past a cordon was a sufficient offence; in the case of a contraband carrier, his immediate destination was the decisive test.11

The great innovation of the American courts was, that they added new tests of what constituted an offence against the law to the tests that had previously been deemed sufficient. They disregarded the legal niceties that distinguished between the mens rea of a blockade runner, and the animus fraudandi of a contraband trader, and decided, in cases that will be examined later: first, that if contraband goods were shipped by firms notoriously engaged in the contraband traffic of the southern states, to harbours and wharves that were notoriously depots for the contraband trade, then, there was so strong a presumption that these contraband goods were intended for the enemy's forces, that their first neutral destination mattered nothing; and secondly, that ships carrying general stores that had been shipped and handled by the same firms, and consigned to one of those neutral harbours that were notoriously bases of the blockade running fleet, could be treated as blockade runners at every point of their voyage.

The British government and their legal advisers never challenged the principles of law which the American courts had thus enunciated. Nevertheless, British and foreign lawyers of great eminence and learning criticized the American judgments severely; and the protests of lawyers against what seemed to them to be a dangerous [8] encroachment upon the liberties of neutral commerce, strengthened opinions and tendencies, which were then evident in Great Britain, and which were still further strengthened as the century advanced.12

vii) Why British doctrines of maritime capture became unsteady during the nineteenth century

Thinking persons did not doubt that the American blockade and its dreadful consequences were a warning of danger. Our import and export trades were then expanding at a prodigious pace, and persons with no knowledge of economics, and who had never studied trade returns, quite well understood, that Great Britain was more sensitive to maritime attack than she had ever been before. During the eighteenth century, invasion had been the great danger against which our naval forces secured us; during the nineteenth, a new danger was added to the old one: That an enemy might infest the Atlantic trade routes, and interrupt that regular delivery of the corn, cotton and meat cargoes upon which the nation depended. It must be remembered, moreover, that, during the nineteenth century, France was the great naval rival; and nobody doubted, that the French navy, based upon strongly fortified harbours, which flanked our most important communications, could seriously interfere with our commercial traffic. These apprehensions were strong among the business men and the industrial magnates of the midlands, from whom there was a steady, insistent demand, that the immunities of neutral commerce should be carefully safeguarded. Even the hard headed members of the Horsfall commission on merchant shipping (1866) associated themselves with an agitation then in fashion, that all private property at sea should be exempt from capture. Cobden and Bright urged, that this doctrine should be pressed upon Europe by the British government. There was, indeed, a natural alliance between the magnanimous sentiments of the mid-victorian liberal, and the commercial interests of those who were the strength of the party. In the matter of foreign policy, the leaders of the group consistently maintained, that the British government should remain neutral in every European conflict; it was a mere practical application of this policy, therefore, to insist that no European belligerent should ever apply the law of contraband against the textile exports of the northern midlands.

This tendency, or movement of opinion, was, moreover, strengthened by an agitation of a wholly different kind. During the nineteenth century, the country was repeatedly shaken by controversies about the state of the navy. The period was one in which warship construction and design were extremely unstable. Each successive type of battleship or cruiser recorded an advance in mechanical engineering; but sails were a powerful auxiliary, as coaling stations were still only half established. Apart from this, the merchant traffic, which the navy had to protect, still consisted largely of sailing vessels. It was, therefore, fruitless for British governments to maintain that they adhered to a one or a two power standard of naval strength, if the proper calculation of the standard, and the types of vessels most proper for the duties in hand, were continuously in dispute. It is true, that neither the publicists, nor the commissioners who investigated these matters, ever (as far as I can discover) stated, specifically, that Great Britain might depend upon neutral carriers in time of war. It is, however, rather remarkable, that, in the naval literature of that period, it is never suggested, that the British navy might be used to exert pressure upon an adversary: the subject is always, how commerce can be protected, the conclusion, generally, that the existing system of defence is dangerously weak. In fact, it is impossible to read the best contributions to the recurrent controversy: - Captain Colomb's essays on the protection of commerce, and the Carnarvon commission's report - without realising, that the great fear and [9] apprehension of those times was a fear, that the vast and growing commerce of Great Britain never could be adequately protected. No authoritative writer ever doubted, that a large proportion of our own national shipping might be driven into harbour for long periods; it therefore required no great foresight to see, that the immunities of neutral commerce, and the national safety, might be very closely connected in times of danger. For it was obvious, that, if any considerable proportion of British shipping were forced to abandon the seas, neutral shipping would only be induced to bring in our supplies, if contraband lists were precise and rigid, and if the carrying rights of neutrals were universally acknowledged. Even at the beginning of the following century, when the naval authorities were confident that ocean traffic would not be stopped, the royal commission on food supplies were unanimous, that it was to Great Britain's interest that food and raw materials should never be treated as contraband.13

viii) British policy during the fifty years preceeding the second Hague conference

For these reasons, British governments showed a consistent dislike of any exceptional pretensions by powers at war, and were tolerably firm in their support of neutral immunities, throughout the century. They protested against the French contraband lists in the Chino-French campaign, and against the Russian contraband lists in the Russo-Japanese war,14 when the Russian government proclaimed food and propellants to be absolute contraband. Indeed, certain military authorities in Great Britain appear to have been persuaded, that the doctrines of continental lawyers might be supported by British governments in the national interests. In December, 1904, at all events, Sir George Sydenham Clarke, the Secretary to the Committee of Imperial Defence - a military officer of high professional accomplishments - drafted a paper for the committee, in which he discussed capture at sea, not as a lawyer, but as a soldier interested only in its economic consequences. After reviewing the import and export trades of the countries that were then regarded as probable enemies - Germany, France and the United States - Sir George maintained, that, in war, indirect trade with each of these countries would be so great, that it would be uncontrollable, and that attempts to suppress it would make our relations with neutrals very uneasy. Because of this, and because it was important that supplies carried by sea to Great Britain should not be interfered with, Sir George concluded, that British interests would be best protected by restricting definitions of contraband, and by freeing neutral commerce of belligerent restraints. On the whole matter Sir George concluded:

      The sea pressure that can be brought to bear upon a continental enemy appears, therefore, to be far less effective than formerly. If this be admitted the advantage a belligerent state possesses from the right to capture contraband appears illusory.

The position at the beginning of the twentieth century was, therefore, that British governments had been favourable to neutral, rather than to belligerent, pretensions, for more than a generation; but that, although consistent, British policy had only been stated intermittently, and at long intervals. The particular circumstances of each case had probably influenced British governments more than abstract doctrines, and it was only when neutral rights and duties and belligerents' practices were placed on the agenda of the second Hague conference (1907), that the British authorities were compelled to review their policy in the gross.15

ix) What doctrines were examined and settled at the second Hague conference

The conference was empowered to alter and enlarge the law of nations, and the most important of the prospective alterations in the law was a proposal, that all private property should be immune from maritime capture. If this proposition had been a practical issue twenty years previously, it is more than probable, that experts would have recommended that it should be supported. The balance of advantages and disadvantages was, however, no longer so nicely adjusted. France was not then a naval rival, and the uncertainties of a naval campaign against a power whose ports could not be blocked had disappeared. Germany was the most probable opponent, and the Admiralty felt able to give a definite assurance, that German commerce could be driven from the sea, and that the German fleet would not seriously interrupt the movement of commercial cargoes:

      In a war with Great Britain, the numerical inferiority of Germany at sea, and her disadvantageous geographical position, render it extremely improbable that she could wage effective war upon British commerce. The British Islands lie like a breakwater, 600 miles long, athwart the German trade stream, and nothing should elude our vigilance when once war on German trade is established.

This assurance determined our attitude: the British government decided not to forgo the right of capturing private property at sea; for this would, in effect, be abandoning the right of imposing a blockade. In the matter of contraband, however, our advantages were not so clear. It was obvious, even at this time, that the old uncertainties about contraband were as great as ever. Nobody questioned that arms and military equipment were contraband; but the Russian contraband publications seemed to indicate a growing tendency to declare materials that from time immemorial had been on the borderline of contraband lists, to be absolute contraband. Was it in the British interest to endorse this new fashion, or to oppose it?

Investigation proved that the most probable adversary, Germany, imported annually about £30,000,000 worth of goods that were conceivably liable to capture, and, as the Admiralty had stated the consequences of our naval superiority over Germany with such assurance, it seemed, at first sight, as though the belligerent right to capture or strangle this trade would be too valuable to abandon. This, however, was not the final recommendation of the committee of experts, who decided, that an enemy's trade in raw materials would automatically be diverted to other channels, and would evade capture.

      Articles of general use, though technically contraband, might be shipped...... to neutral ports such as Antwerp...... Such German cargoes, in neutral bottoms, would be liable to confiscation under the doctrine of continuous voyage, if it could be proved that they were directed to Germany. The onus of proof would, however, rest with the captors. In practice, it would be extremely difficult to establish belligerent ownership, and the right to seizure would be evaded by consigning cargoes to neutral agents. It is, therefore, probable that neutral ships carrying contraband to a neutral port for the ultimate use of a belligerent would be generally immune. And, apart from any question of shipments of German contraband goods, in neutral bottoms, Germany could escape a total dearth of such goods by purchasing them in the open markets of adjacent neutral countries, which would fill up automatically according to the demand.

In addition, the government had been much impressed by the irritation that successive controversies on contraband questions had excited. Russia, for instance, had only yielded, after receiving protests which had been worded in very strong language. The most rapid inspection of German trade returns showed, that, if Great Britain endorsed the latest practices in the matter of contraband, the intermittent controversies of the previous century would revive and be even more dangerous, in that the United States, which exported the greater proportion of German conditional contraband, would be the injured party. The expert committee therefore recommended - and their recommendations were repeated in the instructions to the British representatives at the conference - that existing practices in respect to contraband were dangerous, and that Great Britain would be the gainer [11] if the bare doctrine of contraband could be abrogated. Failing this, Great Britain should urge that all powers should bind themselves by convention to a rigid and very restrictive definition of contraband.

The instructions to the British delegates were thus in harmony with the intentions of the conference; a contraband list that differed little from the list of a seventeenth century treaty was prepared and approved, and the proposal that all private property should be exempt from maritime capture was not pressed. The conference also agreed to codify international practice in respect to a number of other very important matters. It will be more convenient, however, to examine the remaining provisions of the Hague convention piecemeal, and conjointly with such measures of administration and policy as were influenced by them; and at this point to consider the conference as an occasion upon which a number of vague and unsettled theories and doctrines were examined. The adjustment was a balance between our best interests as a belligerent and as a money making state, with a slight inclination towards our interests in war. The government had been assured of the consequences of our naval superiority, in language that was, perhaps, more emphatic and decisive than Boards of Admiralty had ever felt justified in employing: on the other hand, experts had been unanimous that indirect and diverted trade to a belligerent could not be stopped. The obvious inference from these two statements of naval strength and naval impotence was, that the right to impose a blockade was the only belligerent right that was of real value, and the Admiralty virtually assured the government that a blockade of the German coasts would be imposed during the first weeks of an Anglo-German war. The compromise finally adopted was to adhere tenaciously to this right, and to treat contraband lightly.

x) What rules of neutral conduct were examined and settled by the conference

There was, however, one rule of great importance which the conference formulated: the obligations of a neutral power with regard to the export of contraband. When the conference opened, the matter stood thus. A belligerent power had only once maintained16 - and then very tentatively - that neutral governments were obliged to stop the export of contraband; but neutrality was a political condition far more precisely defined in the nineteenth and twentieth, than in preceding, centuries, and an influential school of international jurists were maintaining that the general laws of neutrality needed adjustment to an obvious tendency in public affairs.17 It was then admitted, that no state could send a body of auxiliary troops to serve under the flag of a power at war, and remain neutral; and there was at least a tendency in modern legislation to forbid the citizens of one state to enrol in the forces of another. Had not the time arrived, therefore, to confirm this by a rule of law which would oblige all states, when neutral, to prohibit the export of arms and contraband to all belligerents?

The conference decided the contrary; and the fifth convention was an accurate statement of the law of neutrality (as it then stood). As the obligations of neutrals were subsequently much agitated, it will be convenient to make a brief summary of the ten articles in which the law of neutral conduct was stated.

By the first, second, and third articles, neutral territory was declared inviolable, but neutral governments were obliged to see to it, that their countries were never made theatres of military operations, or used as places for installing military wireless and signalling stations.

By the fourth article, no neutral state was to allow a power at war to raise troops, or to station recruiting offices, on its territory. The fifth article made it incumbent upon all neutral powers to enforce these rules, and article six allowed of a few exceptions.

[12] By the seventh, eight and ninth articles, which were perhaps the most important, a neutral power was not bound to prevent the export or transit of arms, munitions of war, or, in general, of anything that could be of use to an army or fleet; nor was a neutral bound to prevent the authorities of a belligerent power from using the cables and telegraphic installations of private companies. By the tenth article, a neutral power was not considered to have performed a hostile act if it resisted violations of its neutrality by force of arms.

This section of the Hague convention, therefore, gave the force of law to conceptions of neutrality that had been little but vague legal theories during the previous century. On the other hand, the conference did not make those additions to the law which would have made it a complete and logical body of rules.

xi) The recommendation that an international prize court be established; its implications

The powers represented at the conference recommended unanimously that prize cases should be carried, on appeal, before an international court. This court could not, however, assemble until a universal code of law had been established; and to do this it was necessary to convene another conference, at which the differences between the law applied in the courts of the great maritime power should be compared and resolved. It will not, perhaps, be superfluous to state how the duties of the conference that assembled to give effect to this recommendation, and differed from the duties of the preceding conference. To trained diplomats and lawyers the distinction is obvious: naval officers and publicists have not always understood it. Policy, and the general interests of the nation, had, of necessity, guided the British government during a conference that had been convened with powers sufficient to introduce sweeping changes into the law and diplomatic practice of nations. The succeeding conference was assembled only to ascertain the law of maritime capture, and to digest it into an agreed code. At such a conference as this, historical precedents and old practices determined doubtful cases; or, to express the matter in plain language, the duty of the delegates sent to the first conference was to look forward; and of those at the second to look back.

xii) Continental and British doctrines on the law of blockade

As has been said, the declaration of Paris resolved one great difference between British and continental practice: the treatment proper to be given to enemy property found at sea; and made the law of blockade more precise than it had been during the Napoleonic wars. There were still, however, a number of unsettled differences about the law of blockade and contraband, which must be briefly reviewed if the compromise upon them is to be understood.

All maritime powers were agreed that blockades, to be legal, must be effective, and that proper notification must be given; but practice differed on these two points of effectiveness and notification.

No navy in Europe had imposed so many blockades as the British. In the early part of the eighteenth century, our blockades were mainly for a strategical purpose: watching forces were placed off Brest and Toulon, or Brest, Cadiz and Toulon, to give the commanders of the main fleet timely warning, if the French Mediterranean squadron were attempting to unite with the forces in the Atlantic, or if the French and Spanish fleets intended to concentrate. Towards the end of the century, these blockades become both commercial and military, and experience taught us, that the best distribution of naval forces off a blockaded port was a matter to be decided by the strength of the forces inside, the direction of the coastal channels, the regimen of land and sea breezes, and so on; and that the measures taken to stop up all the commerce of a blockaded place could never be described beforehand. In our practice, therefore, a blockade was judged effective by its results only.

[13] In respect to notification, our courts had been guided by common reason, and had decided that, if the government or the local naval commander had taken such measures as made it practically certain, that neutral traders knew, before their vessels started, that such or such a place was blockaded, then, this was sufficient. With regard to guilt, our courts had always held, that an intention to break a blockade constituted the offence, and that a vessel sailing from a neutral port under orders to pass a blockading force was liable to capture, from the moment of sailing, to the end of her return journey from the blockaded harbour. Our practice had, however, been considerably easier than our law. Blockading cruisers rarely left their stations for long chases, so that blockade breakers were generally free from capture when they had cleared the line of watching cruisers. With this trifling exception, a long and well digested experience appears to have harmonised British law and practice.

In contrast to this, the continental law of blockade had been enunciated by lawyers of great eminence and learning; but had been less tested by seamen. First, continental lawyers maintained, that commerce going to a blockaded place could only be stopped and condemned when it was within the zone actually watched and patrolled by the blockading force. They claimed, therefore, that this zone - which they called the blockaders' rayon d'action - must be precisely stated in every notification. We were ready to admit, that, in practice, vessels were only stopped and brought in when they were within this radius or rayon; but we had a strong objection to giving precise geometric boundaries to a zone that might be enlarged, or contracted, by all the chances of the sea: gales, fogs, snowstorms and the like. In addition, continental lawyers maintained, that a general notification could never be deemed a sufficient warning to particular vessels, and that a ship could only be treated as a blockade breaker, after some officer of the blockading squadron had informed the captain that the place whither he was sailing was blockaded, and had entered the notification in the ship's log.

xiii) The law of blockade as established by the declaration of London

During the years preceding the London conference, the Admiralty had warned the British delegation, that they would never agree to any concession upon those points of blockade law that they considered essential. They had, however, consented to compromise with continental practice upon the question of rayon d'action; but the concessions made in the declaration were rather less than those originally offered. The British rule of effectiveness, that it was a question of fact, was upheld without alteration. We did, however, recede from our old rule, which put a blockade breaker in delicto during her entire voyage to and from the blockaded harbour; but no geometric definition was given to the zone of operations in which she was capturable. After long consideration, it was decided, that this concession was not serious, as it was deemed very unlikely, that a vessel would ever be brought in, and condemned, after the chase had been given up. In the matter of notification, there was no substantial concession by either the British or the continental school, as it was recognised that declarations of blockade would, in the circumstances of the times, be known in all great commercial harbours. Allowance was, however, made for a master who could prove that he knew nothing about it (article 16).18

xiv) Continental and British doctrines on the law of absolute contraband

From the earliest times, it had been admitted, that arms, munitions and military equipment were confiscable, when consigned to an enemy, and the delegates at the second Hague conference had prepared a list of contraband without much difficulty. [14] It was little but a modern edition of the lists inserted in the old treaties of the seventeenth century. This, however, by no means settled every question at issue; for, inasmuch as contraband is only confiscable if it is consigned to an enemy, the rules for determining a culpable destination are an essential part of the general doctrine, and these rules were not well settled. According to the old, and orthodox, British practice, contraband was only confiscable if consigned direct to an enemy: in American practice it was enough, that there should be a strong, unrebutted presumption, that contraband was on its way to an enemy. Our lawyers had never explicitly endorsed these American judgements about the ultimate destination of contraband: but the committee that prepared the statement of British law which was submitted to the conference made it clear, that British courts would no longer stand on the strict rule: Goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful. Our legal authorities were, however, still disinclined to admit outright that American practice was good law. The continental powers were very divided. The articles finally agreed upon (nos. 30 to 33) were substantially an endorsement of the American rule, for, by these articles, it was laid down, that cargoes of absolute contraband could be arrested even though they were on their way to a neutral port, provided always, that it could be shown that they would be sent on to an enemy.

xv) The law about conditional contraband was vague and unsettled

These rules only determined when cargoes of arms and munitions were confiscable. The proper treatment of foodstuffs and certain raw materials was more difficult to settle, because practice had, for centuries, been influenced by policy, and the beginnings or foundations of a universal rule - visible in the earlier judgments of the French wars - had been overlaid by the special measures of the later period, when foodstuffs and raw materials were involved in the economic reprisals of the two belligerents. Roughly speaking, the matter stood thus. It had always been recognised, that food and certain raw materials might, in some circumstances, be confiscated as contraband; but, as legal subtleties about goods of double headed use were more invitations to controversy than a settlement of doubtful points, statesmen attempted to make a clear rule by inserting contraband lists in commercial treaties, and, by making these articles of doubtful use contraband in the treaty with the country that exported them. Thus, timber, pitch and tar were made contraband in the old treaties with the Baltic kingdoms, Sweden and Denmark, but their inclusion in these treaties by no means made them contraband in a general way. At the close of the eighteenth century, several of these old treaties were still in force, and it was not easy to differentiate appropriately between country and country. In order, therefore, to make decisions about these articles of special contraband more uniform and regular, our courts introduced the rules of pre-emption, and of special destination. By the first, these special articles were bought up by the belligerent government, if they were being exported to an enemy from the country of manufacture; by the second, they were deemed confiscable if they were consigned to a naval or military port.19 The rule of pre-emption appears to have been abandoned, for it was not inserted in the elaborate and careful statement of British law which was prepared for the naval conference by Lord Desart and his colleagues. The rule of special destination was, however, deemed an important part of British law, so that, when the conference opened, British practice was that certain goods - which had never been specified very exactly - could be treated as contraband if they were consigned to a naval or military arsenal or depôt. It will be proper to give a brief explanation of the military importance of this doctrine.

xvi) Why the treatment of conditional contraband had been an important matter in earlier wars

This rule had been deemed good law in days when the economic systems of the great European states, and of their colonies, bore no resemblance to the economic systems of the twentieth century. The colonies were, for the most part, importers of grain and foodstuffs, and the monopolies that were then universal, made them dependent upon the mother country for supplies. In consequence of this, the supply fleets, which sailed at certain seasons of the year, were of very great importance to any fleet or expedition that was operating in the colonies during war, and their interception was of proportionate military value.20 The supplies of continental armies were mostly carried by land, or extorted locally, but if, by any chance, a detachment became dependent upon overseas supplies, a strict watch upon the port where those supplies were delivered, as often as not, reduced them to great distress. In 1744, for instance, the Spanish army in southern Italy was almost unable to operate, because the British fleet had cut its communications with Spain; in the previous year the British fleet in the Mediterranean had been very much inconvenienced by M. de Rochambeau's blockade of the Tagus, where the storeships took refuge. Thirty-five years later, M. d'Orvilliers could not remast his flagship at Brest, because the Dutch had been unable to bring in the Baltic timber ships. Examples could be multiplied.

This old doctrine about the special military destination of food and provisions - of which latter day controversialists have spoken with the greatest contempt - had, therefore, been a rule of great military significance. It had been elaborated in days when great countries could not be reduced by intercepting sea-borne supplies; but when their colonies and military bases were small models of a modern industrial state.

xvii) The differences between British and continental practice about conditional contraband

If the representatives at the London conference had been empowered to refashion the law, then it might have been incumbent upon them to inquire whether this old doctrine had as much significance as formerly. Being instructed only to ascertain the law, it was their duty to decide what goods and articles could be confiscated if they were consigned to armed forces and bases. This was certainly a question influenced by general policy; for the practice of continental powers had been irregular and their precedents were too inconsistent to be made the substance of a universal rule. The British government had not swerved from the policy determined before the Hague conference, that contraband lists should be as short and as precise as possible, and this was consistently urged by the British delegation during the long discussions about conditional contraband and the destinations that made it confiscable.

British policy was, however, in conflict with that of a large number of powers, who were not prepared to endorse our doctrine. We, being the greatest naval power in the world, desired to make the law of blockade as comprehensive as possible, and to make the law of contraband so easy, that it would not deter neutral shipping from carrying goods on our behalf during war. Continental powers, who could only anticipate securing a local and temporary command of the sea, naturally desired to settle the law of contraband, so that it might enable them to exercise some of the [16] economic pressure which we intended to impose by blockade. At the outset, therefore, the British delegation were confronted with doctrines far more sweeping than any they were prepared to admit, as for instance, the French proposition:

      That food and raw materials destined for non-combatants are not, as a matter of principle, considered to be contraband, but may be so declared, according to circumstances of which the government is to be the judge, and by virtue of an order emanating from the government.

xviii) The compromise on conditional contraband, and the rules established about neutral prizes

The second chapter of the declaration, in twenty-three articles (22-44), was admittedly a compromise between the British and continental doctrines, and it would serve no purpose whatever to examine whether the adjusted articles inclined to our rules, or to those of other powers. Roughly speaking, the matter stood thus. The list of absolute contraband was universally agreed to; and the rule about the destination of absolute contraband was of American origin. It was considerably more severe, and gave far greater powers of interception, than the old British rule, that there was no such thing as contraband consigned to neutrals; but, as has already been explained, the rule had been adopted (rather tentatively it would seem) by the common law courts during the South African war, and was thus no great innovation for us. The remaining articles in this second chapter of the declaration: conditional contraband, the destinations that made it confiscable, and the free list, were articles of a draft project presented by the British delegates at the seventh committee meeting of the conference. It will be convenient to postpone an examination of these articles, and to explain their origins, when our first order in council is described.

The declaration contained other chapters, which were heatedly discussed at the time; the fourth chapter, for instance, allowed neutral prizes to be destroyed if they would be liable to condemnation, and if the capturing vessel could not bring them in without risk to herself, or prejudice to the operations upon which she was engaged. This rule was certainly a concession to powers who had few overseas bases, and who could only hope to secure a temporary, local, command of the sea routes; but it was by no means what the party press represented it to be: a rule that endangered our sea communications. All over the country placards were posted up, in which neutral vessels laden with corn and meat for Great Britain were depicted in flames, or sinking, while crowds of famished people looked out from the cliffs of Dover upon an abandoned sea. In other placards, the London docks were depicted all deserted, and covered with grass and weeds; and this desolation was proved to be the consequence of this new rule. Actually, some German raiders availed themselves of the rule to sink a few neutral prizes: the incidents were trivial, and were soon forgotten.

The fifth chapter, about the transfer of vessels to a neutral flag, became important when the American government introduced legislation for purchasing a large number of German ships. It will, however, be more convenient to consider the provisions of this chapter, when American policy is itself considered.

It would serve no useful purpose to review the declaration with any greater particularity than this, as it has been examined in every textbook of international law; but it will not, perhaps, be superfluous to describe what powers and duties the declaration imposed upon those naval commanders who were ordered to intercept contraband, when war began.

xix) The declaration of London and the practice of interception

In the first place, it must be remembered, that, according to the declaration of London, it rested entirely upon the naval commander who inspected a neutral ship to decide whether or not she was to be arrested and sent in. For, by the thirty second [17] and thirty fifth articles the ship's papers were to supply proof of the destination of a contraband, or conditionally contraband, cargo. Facts that discredited the evidence of the papers were such facts as only a seaman could collect and swear to: the vessel's course and behaviour when summoned, the manner in which entries had been made in the log, and so on. The declaration made no allowances for evidence collected from other sources.

First of all, however, it must be understood, that the officers of the intercepting squadrons had no right to touch a large number of articles, no matter what their destination might be. Neutral vessels were all entitled to carry cotton, raw textiles, oil seeds, rubber and hides to Germany, for, by the twenty eighth article all these goods were on the free list.

If, however, the neutral ship were carrying foodstuffs, forage, clothing, railway material, fuel or lubricants to Germany, the inspecting officer had to decide whether the destination was a naval or military harbour.21 After long discussion, the Admiralty and the War Office decided, that Hamburg was the only commercial harbour upon the German coasts and that all others were naval or military bases. The officer inspecting the ship thus had right to send her in, if her destination were any German harbour but Hamburg. He also had the right to arrest her if he discovered, from the manifest and bills of lading, that the goods had been consigned to a German state contractor, or to a public authority. If the cargo were consigned to any Scandinavian harbour, Göteborg, Copenhagen, Christiania or Malmö, he had no right to stop it.

The interception of absolute contraband was an unquestioned right if it were consigned to Germany, but only exercisable, in practice, if an American firm had been simple enough to load up a neutral vessel with shells and guns, and to despatch her direct to a German port; or if they had allowed the master to carry papers that shewed an enemy destination for the contraband, or raised a presumption of it. Neither contingency was likely, so that, in all foreseeable cases, the inspecting officer would have to decide whether he could collect any evidence, that the shells and guns were to be sent across the Baltic from (say) Göteborg or Copenhagen. As it was in the last degree unlikely, that the directors and managers of an American munition works would send documentary proof of a guilty destination in the ship that carried their goods, it is difficult to understand how absolute contraband could have been stopped, if an inspecting naval officer's powers of interception and arrest had been no greater than those allowed him by the declaration. How these powers were, in fact, exercised will be described later.

xx) The false assumptions made by those who criticised the declaration of London

It would be fruitless and tedious to review the controversy provoked by this convention; but it may, possibly, be of some interest to examine briefly the proposition that was treated as axiomatic by those whose criticism was fiercest and most sustained. It was maintained by these persons, that the British navy had, in the past, exerted such pressure upon France, that the country had been brought to terms, and that the rules of capture, now digested into an international code, would debar the navy from exerting equal duress upon an enemy in the future. Here is a quotation which was, as it were, the starting point of this line of attack:

      Foremost among the causes of Napoleon's fall was the fact that to the products of France, so wealthy in her fields, vineyards and manufactures, circulation was denied by the fleets of Great Britain. The cessation of all maritime transportation deranged the entire financial system of France, largely dependent upon foreign custom.22

[18] Mr. Gibson Bowles, and his disciples in controversy relied entirely upon the authority of Captain Mahan. Now Captain Mahan was admittedly a forceful and suggestive writer upon naval strategy, but was he justified in writing so dogmatically about the economic pressure that the British navy exerted against France? His first, and apparently his only, source of information about the general history of France was the work of Monsieur Henri Martin: a scholar who lived in the early part of the nineteenth century, and who, after the fashion of his age, wrote a general history of his country in some twenty-five volumes. There is no indication whatever that Captain Mahan ever consulted the works of those Frenchmen, who repeatedly review the economic condition of their country, and whose works hold so high a position in the scientific literature of Europe: Vauban, Boisguillebert, Necker, Arnould and a score of others. Had he done so, he would have found, that these authorities hardly mention the British fleet, and explained the distresses of their country in war by a bad fiscal system, unequal taxes, reckless issues of paper money, and periodic state bankruptcies. That Mr. Gibson Bowles should have relied upon Mahan was natural; Mr. Bowles was a controversialist, and Captain Mahan was a popular writer, whose works could be quoted in support of Mr. Bowles's contentions. But it is to be regretted, that those who so skilfully argued with Mr. Bowles, should have exerted themselves only to win what may be called the minor, tactical points at the controversy, and should never have shown, that the foundations of Mr. Bowles's structure of argument were rotten and unsound. The truth is, that the British navy had never exerted decisive economic pressure against France, or against any other enemy, that our enemy's commercial systems made it impossible to do so, and that the British statesmen, who had conducted the great wars of the eighteenth century, had never hoped that a continental enemy could be brought to terms by stopping its commerce. They, after all, were more competent judges than Mr. Gibson Bowles or Captain Mahan.

A scientific review of the damage actually done to our enemies by the great naval campaigns of the eighteenth century would be the subject matter of a very lengthy book; but as the rules of maritime capture that were incorporated into the declaration of London were largely rules, which had served as a temperament to naval operations of an earlier age, it will not, perhaps, be fruitless to state, briefly, how commerce was intercepted in the days when British practice became a corpus of established usage, and what advantages were secured by what is popularly known as the command of the seas. It is only after making this review, that the weakness of the declaration can be properly appreciated. Those weaknesses were never properly exhibited by its critics, who maintained that the declaration was an unsound statement of law, and a wholesale adoption of continental doctrines. It was neither the one nor the other: it was merely a body of rules for regulating naval operations against commercial systems that had disappeared.

xxi) Why old continental states were little damaged by maritime attack

Our old maritime enemies, Holland and France, were states with very different economic structures, and it is not to be denied, that, at the close of the seventeenth century, a successful interception of the Dutch East Indies fleet might have brought the United Provinces to terms.23 Dutch naval historians have shown what importance the states general attached to the safe arrival of the great convoys; for it is by them admitted, that the bank of Amsterdam might have been forced to suspend payments, and most of the financiers to refuse bills, if the East Indies fleet had fallen into an enemy's hands. Whether these disasters would have made it impossible for the states general to equip fleets and armies has never been stated; presumably they would have thrown a great load of financial difficulties upon the executive. [19] Nor is it to be denied that the Spanish flota, or treasure fleet, was as essential to the Spanish treasury as the East Indies fleets were to the Dutch. This, however, proves only that these particular enemies were sensitive to maritime attack, and not that they were ever reduced by it. The Dutch admirals contrived that the great convoys should reach the country during war; and, when the British government deprived the Spanish treasury of a large proportion of their West Indian revenues, this was done by sending an army to Havana, and not by intercepting the flota in mid-Atlantic.

Our other great opponent, France, had none of these Achilles heels. French commerce was, certainly, a source of revenue; but one of the most diligent and scientific of the later French economists, after making an exhaustive study of his country's economic history during the eighteenth century, describes it as a state: entourée de prohibitions, reservant pour son marché interieur, ou ses colonies, la presque totalité de sa production.24 This would, in itself, very much discredit the legend about the navy and economic pressure; for how could a country thus constituted be reduced by operations at sea? But, as it is not to be denied, that we did secure very considerable advantages by our naval superiority throughout the eighteenth century, and that the damage done to our enemy's commerce was one of the advantages secured, it will be as well to examine the volume, nature and direction of the trade that was actually exposed to maritime attack.

The period during which the British navy conducted so many successful campaigns was, for France, a period of steady commercial expansion. At the beginning of the eighteenth century, French imports and exports were valued at 215 millions of livres, and at the end at 1,061 millions. But, throughout this period, the European market was by far the most important.25 The overseas commerce, moreover, enriched individuals far more than it enriched the treasury. The state revenues of France were made up of taxes imposed mainly upon agricultural property and produce; and the income taxes occasionally imposed - dixièmes, vingtièmes and so on  - were not levied from the burghers at the two great mercantile harbours of the kingdom, Bordeaux and Marseilles, for both these towns were situated in the pays des ètats, which were under separate fiscal systems. The compagnie des Indes paid no taxes on their revenues. It cannot be doubted that many individuals were impoverished by the decline in overseas commerce during the Seven Years' war; but the damage was done to capital and incomes that contributed very little to the state revenues. Nor can it be supposed that the population, as a whole, suffered severely from declines of external commerce. During the greater part of the century, France exported grain, silk, textiles and articles of luxury made in Paris and Lyons, and imported such colonial products as coffee, sugar, gum and East Indian luxuries, none of which were essential to the population from whom the armies were recruited, or to the state that equipped them. Certainly, the wars of the eighteenth century did great damage to the French economic system; but this was because the continental campaigns closed the central European markets against French exports, and so brought French commerce to a standstill. If the losses suffered had only been the losses consequent upon a partial stagnation in the country's overseas trade, the French economic system would, throughout, have been sound and healthy.

Finally, as to the Napoleonic wars. The facts are, that, between 1794 and the peace of Paris, the sea-borne commerce of France was reduced; that trade between France and continental Europe was damaged by the depreciation of the currency during the revolutionary period; that it recovered under the consulate; and that this recovery was sufficient to put the state finances in order. During the period when latter day controversialists have maintained, that the British navy was ruining our enemies, the French government spent a milliard of francs upon public works and [20] social services, without raising a loan. It is true that there was a severe economic depression during the last three years of the empire. Economists explain this by the political instability of Europe, which made continental purchasers of French goods unwilling to buy; they admit that the severe economic warfare between Great Britain and the empire aggravated the crisis, but do not suggest that it was the cause or origin.

This historical retrospect is a necessary introduction to any review, however brief, of the controversy excited by the declaration. The hypothesis of the critics that carried most weight was unsound. They maintained that the British navy had exerted decisive economic pressure upon its enemies in the past, and that the sea laws administered in our courts had been the instruments for exerting it. Neither proposition was accurate.

xxii) That the declaration did cause reasonable misgivings

It must, however, be added that the weakness of the declaration was appreciated in some quarters, and that it was a misfortune, that these better informed critics did not receive the hearing they deserved. The Committee of Imperial Defence had twice examined matters relevant to economic warfare: first, when Lord Desart's committee prepared its report upon trading with an enemy in war, and secondly, when a committee considered, whether it would be to our advantage to seize enemy ships in British ports when war began, or whether we would gain more by releasing them in return for reciprocal treatment. As a result of these investigations, certain members of the staff, Captain M. P. A. Hankey in particular,26 perceived somewhat vaguely, but in the main justly, that economic warfare would be a gigantic operation of which we had no previous knowledge or experience, and, that the body of rules in the declaration made no allowance for changes in the conduct of naval warfare, which would alter our bare conceptions of blockade and contraband. This was an accurate forecast of what actually occurred, and the paper or memorandum in which the forecast was made is a document of far more interest, and historic significance, than the noisy, clamorous papers published in the party press.

First as to blockade, Captain Hankey assumed, that the British fleet would defeat the German, and subsequently blockade the German coasts. This was too hopeful; but Captain Hankey foresaw, that the blockade imposed would not be a blockade of known pattern, but would, on the contrary, be a new operation. His words ran thus:

      The second step, therefore, to make our sea-power felt will be to establish a blockade. Although the declaration of London still permits blockade it has hedged it in with rules and restrictions which, taken in conjunction with recent developments of naval weapons, renders it an inefficient, and easily evaded instrument.
      The negotiators of the declaration of London seem to have forgotten the fact that the torpedo boat, the submarine, and the mine have made blockade, and specially close blockade a very much more difficult matter in the future than in the past. This difficulty is accentuated in the case of ports situated in narrow seas. For example, after we had established a definite and general command of the sea it would be extremely difficult to blockade ports in the Baltic or the Adriatic, for in such narrow seas the torpedo boats and above all the submarines of even a defeated enemy would inflict terrible losses on a blockading fleet. In the open ocean it is difficult for such craft to track down their prey, but in enclosed waters, especially when approached through narrow and obligatory defiles such as the Great Belt or the Sound, these craft are acting under ideal conditions. In the opinion of many naval officers, therefore, a close blockade of ports in such narrow waters is a sheer impossibility.
      Such being the case, it is necessary to consider what substitute can be found for a close blockade. Under existing conditions many means can be thought out not for entirely stopping the enemy's commerce, for that is impossible in the case of a continental power, but for so restricting it, and handicapping it, as to raise the price of every imported commodity, or raw material, and so to cause great suffering on the people. If the declaration of London is ratified, however, it is difficult to see how our sea power is to be used as an effective weapon.
[21]   Let us assume war with Germany; the German main fleet defeated; the German mercantile flag driven off the high seas; and a blockade established on the North sea coast of Germany. We have shown, however, that a blockade of the German Baltic coast is an extremely hazardous and in all probability an impossible operation of war. Under the existing (pre-declaration of London) conditions several substitutes for a close blockade of the German Baltic coast can be thought out.
      For example a blockade of the German ports might be declared, but rendered effective at the entrance to the Baltic off The Skaw. Our warships would receive instructions to detain all merchant vessels entering the Skagerrak. Those bound for or containing cargo consigned to German ports would be sent back. Those bound for neutral ports such as Copenhagen or Riga would be warned that, in the event of their proceeding to a German port they would be considered to have broken the blockade and would be liable to capture when they left the Baltic. It would be necessary, of course, to place British agents in all the principal neutral ports to give notice if such ships, ignoring the warning, sailed to German ports. Recent developments of wireless telegraphy, and the completeness of cable communications render such a course perfectly easy to carry out, though no precise precedent of a similar procedure in past wars can be quoted, as without these modern inventions it would not be practicable.

This, certainly, was not fulfilled in every respect; but Captain Hankey's principal contention was well reasoned: we were obliged to impose a blockade by squadrons stationed as no blockading forces had ever been stationed before, and we were obliged to supplement our naval control of the North sea by a vast network of watching posts in neutral harbours.

Again, Captain Hankey's abstract contention that the old operation of blockade was being merged into the greater operations of economic war, was quite sound:

      There is no instance to be found in modern history of a war in which commerce has played a vitally important part, owing to the fact that recent wars have not been fought between nations susceptible - as are Great Britain and Germany - to attack through their commerce, and there are no data on which to calculate what means it will be necessary to adopt in such a war. The difficulties of blockade, due to modern inventions, suggest that even greater latitude may be necessary in the future than in the past. The negotiators of the declaration of London have made the fatal error of basing their agreement not on the experience of past wars (for in the Napoleonic wars and all previous wars, when commerce was an important consideration, the greatest latitude was claimed and exercised) and not on a scientific appreciation of possible future wars, but have rested themselves on the experience of a few very recent wars in which the weapon of sea power, as a means of putting pressure to bear on the inferior naval power, had no scope for exertion.

This passage shows how great was the difference between this criticism and that of Mr. Gibson Bowles, who was arguing that economic pressure had been decisive in the past and had been exerted by naval means. This, as has been shown, was a false assumption. Captain Hankey, on the other hand, was arguing that economic pressure had not been decisive in the past; but that it might be made so in the future, if it were exerted by more than one engine of pressure. This proved true, and on the question of contraband, Captain Hankey also foresaw, that inasmuch as economic warfare was inevitable, so, contraband would inevitably be assimilated to all substances that are essential to modern industries:

      It will now be shown (he wrote) that the severe limitations placed by the declaration of London on the articles which can be declared contraband will have a most important effect in counteracting the results of our efforts to produce economic pressure on Germany by naval means. The articles included in the list of conditional contraband and in the free list comprise to all intents and purposes the whole of Germany's seaborne trade. That is to say that all these articles can be conveyed during war into or out of any German port in neutral bottoms unless we have declared a blockade of that port. The only remedy is to establish a blockade of the whole German coast. So far as the ports in the North sea are concerned this should present no insurmountable difficulty. In the case of the Baltic ports it is far otherwise......
      How then is economic pressure to be exerted? What becomes of the stoppage of Germany's income derived from import duties? How are the shrinkage of capital, the closing down of factories, and the simultaneous raising of prices to be effected, when the whole of Germany's trade can be carried by neutral vessels passing down the Cattegat at Skaggerrak and entering Hamburg "through the back door," viz., the Kiel canal, to say nothing of the Baltic ports?
      From the above it would seem that those critics of the declaration of London who state that the declaration ties our right arm have good grounds for their assertion.
[22]   Now let us examine what the position would be if the declaration did not exist. In that case our obvious course, to be adopted as soon as the naval situation permitted, would be to declare a blockade of the North sea ports, and simultaneously to make a sweeping declaration of what was contraband, including all the principal raw materials on which German manufactures depend as well as her main articles of export. Neutral vessels would be rigorously held up and examined outside the Cattegat; the doctrine of continuous voyage would be rigorously applied; a system of agents in Swedish, Danish and Russian ports would apprise us as to how trans-shipment was taking place and measures would be taken to deal with offenders; these steps would probably be supplemented by raids by destroyers and light craft into the vicinity of Baltic ports with which trade was known to continue. These measures would not absolutely stop trade from the outside world with German Baltic ports - even in the Napoleonic wars trade with the continent never ceased altogether - but the trade would be diminished and harassed as was the trade of France in the wars of a century ago.

Unfortunately, this paper did not influence the controversy. Captain Hankey submitted it to the Admiralty, with the full approval of his chief, Admiral Ottley, but the Admiralty never answered it; for they desired that the declaration should be ratified. It should be added, that, even if Captain Hankey's opinions upon the conduct of naval war had been widely held and appreciated in high places, no code of law prepared while these opinions were still speculative, could have made allowance for the changes that Captain Hankey foresaw. The declaration of London could not, in the circumstances that obtained, have been anything but a code of customary law, that is, a body of customs and precedents made orderly. It was a misfortune for which nobody can be blamed, nobody reproached, that the customs and precedents then reduced to order were a century old.

xxiii) Why the declaration was not ratified

Captain Hankey's memorandum, then, is proof only, that the declaration was subjected to a criticism that was better informed, and more far sighted, than the criticism of those who inflamed party rancour by maintaining that the navy would soon be the contempt, after once having been the terror, of our enemies. No echo of Captain Hankey's misgivings is to be found in the long, rambling debate in the lords, which decided the fate of the declaration. The lords were, however, influenced by the fears of the city corporations; and these fears, although they proved quite unfounded in the event, were yet reasonable enough to deserve explanation.

The commercial community did not properly understand that our sea-borne commerce had become relatively immune from attack since Germany had become the rival. It is true, that the proceedings of the royal commission on food supplies had been published, and that the report contained a fairly positive assurance from the naval authorities, that the trade stream to and from the British Islands could not be seriously interfered with in war. Old apprehensions still lingered in the city and the midlands, and a large number of commercial corporations were alarmed at the articles about conditional contraband, and the concessions made to continental practice in respect to the destruction of neutral prizes. The magnates of the corn exchange represented, that, by the customs of the trade, cargoes changed hands several times during a single voyage, and were generally consigned to the order of a banker. It seemed to them, that large banking associations, upon which the financial structure of Great Britain rested, might very easily come within the definition given to those consignees of conditional contraband, who, by their occupations, made it confiscable. In addition to this, the definition of armed bases and ports seemed to the mercantile community to be dangerously vague: was it not possible, that Southampton might be treated as a base of supplies for our military establishments at Aldershot, or indeed, that the port of London itself might be regarded as a place serving as a base for the armed forces of the enemy, seeing that the principal railways of the country radiated from London, and were, therefore, arteries of supply for the garrison towns, which were all upon the main line system. The declaration of London was thus exposed to the attacks of those who maintained, that, by its [23] provisions, the navy was debarred from interfering with an enemy's supplies, and of those who believed, that the very provisions that protected an enemy's commerce from maritime attack, exposed and endangered our own. Nevertheless, this ill-managed commotion served its purpose: domestic legislation was necessary before the international prize court convention could be ratified; and the house of lords, influenced by contentions that were inconsistent, and, indeed, contradictory, threw out the bill presented to them. This meant that the declaration of London was not ratified, and not binding upon us, or upon any of the original signatories. It was, nevertheless, a code of usage, which could fairly be called the common law of the sea.

xxiv) The Board of Admiralty and the declaration of London

Finally, as to expert naval opinion upon the declaration. As the controversialists of the day represented the declaration as damaging to our naval power, they suggested, as a corollary, that it had been forced upon the naval authorities by a junta of lawyers and politicians. There was no substance in this; and the imputation only gained credit, because admiralty procedure, and the course of admiralty business were not well understood by the public. There is no entry in the board's minute book, that the board, as a whole, approved the declaration, but this signifies nothing; for the subjects that the board considers, as a corporate body, have varied with varying circumstances, and, for a considerable time, board approval of a particular matter has meant, that those members of the board, to whose departments the point has been referred, have given their opinion, and that no other member of the board has asked that a meeting be convened to consider the matter further. The declaration of London was a business which the director of naval intelligence - who is not a member of the board - examined as an expert, and upon which the first sea lord pronounced later. Four successive directors of naval intelligence, and two successive first sea lords desired, that the declaration should be ratified, and no other member of the board asked, that the question should be reconsidered.27 In modern admiralty procedure, this constitutes endorsement by the board as a whole; indeed the notion that expert naval opinion mistrusted the declaration is another legend of the controversy; for the Admiralty reprinted it in the prize manual which was in circulation when war began, and, by so doing, bound naval officers to observe the declaration, notwithstanding that the government and all departments of state were free to disregard it.

It must now be shown what plans of economic coercion were laid in the Admiralty while these conferences were being held, and how those plans were adjusted to the prevailing rules of law and policy.

xxv) Why economic coercion was a secondary object in our naval war plans

The long naval rivalry between Great Britain and Germany has so impressed itself upon the national memory, that few persons realise, that the rivalry, and the preoccupations it excited, were almost without precedent in British history. It is true there had been a similar state of affairs in the latter part of the seventeenth century. Subsequent to that, however, our great rivals had been continental powers who could not equal us at sea, unless their fleets combined. The preoccupation of our naval commanders was, thus, usually, to prevent a union of the fleets of France and Spain, or to break up any concentration that might be dangerous. The duties assigned to the fleet commanders were, in consequence, purely military, and such economic objects as they were occasionally ordered to pursue were supplementary. It was, thus, a comparatively new thing for the Admiralty to make provision for defeating a single naval antagonist, with a concentrated fleet at his command. Old [24] anxieties, therefore, disappeared slowly, and in June, 1905 - the first date that is of any importance to this enquiry - the war orders to the British fleet did not differ in point of substance, from orders issued to commanders of the western squadron two centuries before.

In these orders, the commander-in-chief was told that he must be ready for three contingencies: a war with Germany; a war with France; and a war with both. He was, however, bound by no particular instructions. The Admiralty informed him of the forces that would be placed under his command in war, and told him that it would be his duty to watch the enemies' fleets, and to bring them to action, if they left harbour. He was free to take whatever measures he thought most proper for the purpose. There is no suggestion, in these orders, that the fleet would be used as an instrument of economic coercion, and it requires but little reflection to understand, that, for so long as the Admiralty were making provision against a naval combination that might expose the country to invasion by great continental armies, neither they, nor the commander-in-chief, were at liberty to prepare for an economic campaign.

At the same time, it is patent, that this defeating of a hostile combination cannot have been the only naval operation that the Admiralty conceived to be possible; for, a year after these instructions were issued, the Admiralty formally assured the Committee of Imperial Defence, that they intended to blockade the German coasts if they could. They added, however, that they could not undertake to do so as soon as war began. The blockade of Germany was, therefore, contemplated as a subsidiary object of naval warfare, to be pursued when the strategical chess board was clear.28 It does not appear as though the Admiralty had, at this date, estimated what the consequences of this blockade would be.

Shortly after these orders were issued, two important changes were made in the naval service, and these changes very much altered both the form and substance of all war orders issued subsequently. First, the Admiralty founded a war college for promoting the scientific study of war and strategy; secondly, a committee for war plans was assembled at Whitehall, and the president of the war college was made a member of it. These two additions to the naval administration were made in recognition of a growing conviction in the navy, that the traditional practice of giving the commander-in-chief a free hand was insufficient, and that the old-fashioned instructions, then in force, would have to be supplemented by detailed plans, prepared after all an enemy's weak points had been scientifically considered. It was during the years 1905 to 1907, at all events, that war plans on an entirely new model were prepared.

xxvi) The Admiralty issue new war orders which contain an economic object

In July, 1908, the first of these plans was completed. The great alteration was that, henceforward, the Admiralty, and not the commander-in-chief, were responsible for the strategic conduct of war, and the distribution of the fleet. Secondly, provision was made only for war against Germany, and the Admiralty stated, that the essence of their plan was to keep a preponderant force in the neighbourhood of the North sea. Very detailed provisions were, therefore, made for concentrating the squadrons allotted to the North sea and the Channel; more than this, two groups of destroyers were to be stationed permanently off the German coast, so that something resembling a blockade of the German bight would have been imposed, if the plan had ever been successfully executed. The commander-in-chief was, moreover, specifically ordered [25] to stop all enemy trade in the North sea; an economic objective was thus inserted into the war orders for the first time, and added to the old military duties. It must not, however, be thought, that the Admiralty had superseded a military by an economic plan, or that they imagined that economic pressure could reduce the enemy. Quite the contrary, such economic pressure as they thought it possible to exert was not conceived by them as an end in itself, but was a mere auxiliary to the major plan of bringing the enemy's fleet to battle, and was to be exerted not by the destroyer flotillas in the German bight (which were there stationed for a purely military purpose) but by cordons of cruisers at the entrances to the North sea. These cordons were to drive the enemy's merchant fleet from the sea; and it was hoped that the enemy would endeavour to free their commerce by offering battle.

      The first of these plans (wrote the officer who was largely responsible for compiling it) followed in its general outline, the idea which underlay our operations in certain of the Dutch wars of the seventeenth century. By intercepting the Dutch trade as it passed up Channel, we forced the Dutch fleets to come out and defend it, and so brought on fleet actions near our own coast. This strategy, if applied under modern conditions, would cripple German oversea trade at a minimum of risk and difficulty to ourselves...... Our object is to force them to proceed to a distance of more than 300 miles from their own sheltered bases, to defend their trade, and then fall upon them when outside or cut off their retreat.

xxvii) Enquiries into Germany's dependence upon overseas commerce

This new plan thus predicated a serious displacement of commercial traffic in the North sea, and this state of affairs was made the subject of detailed calculation and study during the next five years. In May, 1908, that is, just before the new orders were issued, Admiral Slade asked that a scientific enquiry be instituted. His minute ran thus:

      The vulnerability of Germany through her overseas supplies being nowadays an accepted fact, it is considered desirable to obtain answers to the enclosed questions in order to gauge her actual dependence on these overseas supplies. The answers to these questions may indicate in a useful manner how far Germany does depend on overseas supplies, and to what extent these overseas supplies can be deviated from their normal to new channels in time of war......
      Assuming Germany's import and export trade by her national ports to be at a standstill in time of war, how far could she draw supplies
            (a) of food-stuffs
            (b) of raw material
from neighbouring countries and from oversea through neutral ports by means of rail and inland water communication? Also to what extent she could export goods oversea through neutral ports?
      Assuming Germany could draw in sufficient raw material to give employment to her manufacturing centres in war time by such means as mentioned above, would the additional transport charges increase the cost of her manufactures to such an extent as to handicap her in competing in foreign markets?
      Russia at present producing sufficient surplus wheat to supply Germany with all her import need, could such be transported by inland waterways and railways into Germany? To what degree would such transport increase the cost of the wheat so carried?
      Antwerp and Rotterdam, being the two great neutral ports nearest to the manufacturing districts of Germany, how far could these two ports in war time accommodate neutral shipping carrying for Germany, i.e. how far could they accommodate the normal tonnage displaced from German national ports?
      Assuming that in war time the German North sea ports are closed to trade except Emden, are there sufficient rolling stock and lighters to serve German needs through the Ems and Rhine, supposing that the trade could be dealt with on the quays?
      Does any large amount of German foreign trade pass through neutral ports other than those of Belgium and Holland?
      Assuming the Baltic in war time to be closed to a great extent to the British trade, how far would Germany benefit by taking over the trade which Great Britain would lose?

The Foreign Office transmitted this enquiry to Sir William Ward, the consul-general at Hamburg, to Sir Cecil Hertslet, the consul-general at Antwerp, to Mr. Churchill, the consul at Amsterdam, and to Sir Francis Oppenheimer, the consul-general at Frankfort-on-Main. These gentlemen only answered after they had made [26] a most exhaustive study of German statistics, and their replies were not received until nearly a year later. While the consuls were studying the matter, the Admiralty instituted an independent enquiry of their own.

xxviii) The Admiralty's estimate of the consequences of economic pressure on Germany

This collateral enquiry was made at the instance of the Committee of Imperial Defence. In November, 1908, the Foreign Office urged that the time had come to consider, what military obligations were imposed upon the country by the treaties of guarantee to which Great Britain was a party. The most formidable and pressing of these obligations was the obligation to give armed assistance to Belgium, if she were attacked by Germany. The committee convened felt, however, that they could not confine themselves to so narrow an enquiry, and their report was mainly upon the help that could be given to France if Germany attacked her. To assist this enquiry, the Admiralty prepared a paper, in which they estimated the economic consequences of a purely naval war between Great Britain and Germany.

The starting point of the Admiralty's enquiry was, that the German North sea harbours would be blockaded in war, and the report was substantially a report on the consequences, in so far as they could be foreseen. The Admiralty were guarded; but they were confident that this blockade, however imperfect, would be much felt in Germany. First, they did not believe that the neutral ports of Holland, and the small Baltic harbours of Germany, would deal with the great volume of additional trade that would be diverted to them; secondly, they considered that the British authorities could seriously diminish the diverted, indirect, trade of Germany, by using their control of the marine insurance market as an engine of coercion. The Admiralty's principal contention was, in fact, that this partial blockade would be formidable by its indirect, secondary consequences. They nowhere suggested that these consequences would be decisive, but they were convinced that they would be serious. On this head, the committee's report ran thus:

      Financially great pressure would be brought to bear against Germany by means of blockading her ports. The trade of these ports could not entirely, or even, perhaps, largely be diverted to the neutral ports of Belgium and Holland, since the latter would not be able suddenly to increase their ability to handle a large addition to the normal traffic. The income of Germany being largely derived from import duties would be seriously diminished by the blockade of her ports. Her capital also sunk as it is, to a great extent in home industries would shrink owing to those industries being deprived of the raw materials upon which they are dependent. The closing of many of these factories would coincide with a rise in prices, and great distress would result owing to the non-fighting population being thrown out of work...... From the evidence that we have had, we are of the opinion that a serious situation would be created in Germany owing to the blockade of her ports, and that, the longer the duration of the war, the more serious the situation would become......

This report is important in that it records the Admiralty's opinion at the date of the London conference, which assembled on 4th December, 1908. In plain language the position at this date was: that the war orders to the fleet contained no explicit provision for a blockade of Germany; but that the Admiralty intended to station watching forces off the German coast; and that the naval staff, after a long and careful enquiry, had decided that a partial blockade of Germany would be worth attempting if feasible.

xxix) The consuls disagreed with the Admiralty, who adhered to their opinions

The British consuls did not complete the enquiry instituted in May, 1908, until the end of the following year. Their opinions, which they only expressed after the most exhaustive examination of the matter, differed substantially from those of the Admiralty staff. Sir William Ward certainly considered, that a blockade of the German North sea ports would cause a shortage; but he was confident that the [27] shortage would be temporary, and that the German government would arrange that foodstuffs and raw materials, entering the country by new channels, should be distributed. Sir William agreed, that Antwerp and Rotterdam would be choked with the additional traffic diverted to them, but he did not believe the congestion would be permanent. Sir Cecil Hertslet, who of all persons was best able to estimate the capacity of Antwerp, and Mr. Churchill, who was equally well informed as to the Dutch harbours, both confirmed this; for they reported that the trade diverted by a North sea blockade would be satisfactorily cleared. Sir Francis Oppenheimer thought the same: he could not conceive that a blockade would be of much consequence, unless the neutrals contiguous to Germany were included in it.

These expert investigators did not, therefore, agree with the opinions expressed in the Admiralty's recent state paper on the same subject. To the Admiralty it had seemed as though the blockade of Germany would be the initial cause of a creeping paralysis; and that the longer the blockade lasted, the more serious would its consequences be. The consuls reported, that, as far as they could foresee, this partial blockade of Germany would give the German nation a shock from which they would soon recover.

This collection of consular reports was considered by Admiral Bethell, who had been the Admiralty's representative at the committee on the military needs of the empire, and by Sir Graham Greene, the secretary. Sir Graham did not dispute the consuls' conclusion; but Admiral Bethell repeated the opinions he had recently expressed at the committee. His minute ran thus:

      This report forms a valuable contribution to the question of the economic effect on Germany, of a blockade of her coasts. The general deductions are:
      That no blockade would prove effective unless the Dutch and Belgian ports were included in it.
      That, in any case, Germany would be able to draw a sufficient supply of foodstuffs from her neighbours.
      That such a blockade would, however, seriously affect the supply of raw materials and thus produce great distress......
      While the above conclusions are generally concurred in, it is considered that, owing to certain factors having been overlooked, a somewhat too favourable case has been made out for Germany.
      The immense difficulties and dislocation, resulting from the diversion of commerce from the North sea ports to other channels of ingress, do not seem to have been quite fully realised.29 It would appear probable that with the Dutch and Belgian ports open she might be able to maintain her supplies of food and raw materials, but that with these ports closed, while her food supply might conceivably be provided for - though the vast difficulties entailed in substituting land transport for the existing sea route by which cereals from Russia and Rumania are conveyed from the Black sea ports to the North sea must not be lost sight of - the shortage of raw material would be such as to produce a condition of grave distress little short of national calamity.

These reports, with Admiral Bethell's minute, were sent to Mr. McKenna and to the first sea lord, who initialled them without comment. Three members of the board thus saw the papers, and, for reasons that will be apparent later, it would seem as though Admiral Bethell's opinion prevailed.

xxx) The Admiralty prepare new war orders in which the blockade of Germany is contemplated

At the same time, it seems hardly doubtful that the Admiralty still hesitated to include this blockade of Germany in their instructions to the fleet; for a new war plan was issued in August, 1910, and it contained no syllable about it. These new war orders are, however, important for several reasons. First, the economic objectives [28] inserted so tentatively in the earlier plan of June, 1908 were considerably enlarged. The commander-in-chief of the main fleet - in the Orkneys - and the admiral commanding the third fleet - in the Channel - were each ordered to take whatever measures they thought most proper to protect British, and destroy enemy commerce. Secondly, enemy traffic was to be watched by forces stationed in the Dover straits, between the Orkneys and the mainland and, by a cruiser squadron in the Atlantic. Thirdly, which was even more important, the reconnaissance forces off the German coast were very much strengthened. As in the previous plan, however, the duties assigned to these forces were military only. The new orders, therefore, were orders for operations which would, in effect, blockade the German coast, and the Admiralty, seeing that this would be inevitable, made complementary preparations; for, in December of the same year, they prepared a draft proclamation that the North sea coasts of Germany were blockaded. The Foreign Office prepared a list of the German authorities who would be entitled to be notified; and the post office authorities made arrangements for transmitting the notification.

This draft order raised an additional question: was the distribution of squadrons in the North sea such a distribution as would entitle the Admiralty or the commander-in-chief to declare a blockade? The war plan provided for a close watch upon the north German coast; and, although this watch was for a purely military purpose, it was not to be doubted, that, if maintained, the reconnaissance cordon in the Heligoland bight would be a blockading force in the strict sense of the word. If, however, it were temporarily withdrawn, or driven from its station, could the supporting cruiser squadrons, and the forces at the entrances to the North sea be considered blockading forces? Finally what was to be the area of operations within which blockade breakers were to be liable to capture? In other words, was the blockade contemplated a legal blockade, if tested by the declaration of London?

The Admiralty decided, that all the vessels stationed in the North sea were entitled, by law, to exercise the rights of blockading forces, and instructed the commander-in-chief accordingly. The essential parts of their letter, which was a compound of minutes written by the first sea lord, and by Admiral Bethell ran thus:

      There is very little doubt that the military blockade will be also effective as a commercial blockade.
      The area of operations will include the whole of the North sea and the straits of Dover but neutral vessels which are shown by their papers to be bound for ports other than those included in the blockade will not be liable to capture for breach of blockade inwards, so long as they keep approximately to the direct course for the port to which they are ostensibly bound.
      Vessels found at a considerable distance from their proper course and nearer the German coast, and any vessels to the south-eastward of a line drawn from Knude Deep to Borkum, will be deemed to be breaking the blockade.
      A vessel which has broken the blockade outwards can be captured by any vessel of the blockading force provided there is clear proof that she had broken the blockade and has not since passed outside the area of operations.
      The blockading force for this purpose must be held to include all the vessels acting under the orders of the Commander-in-Chief in the North sea, as well as any other vessels in home waters, which may be ordered to assist in intercepting an escaping vessel, provided the pursuit is continuous.

If this letter be read conjointly with the opinions given by the Admiralty on previous occasions it must be concluded, that, at this date, they were satisfied, that such a blockade as the navy would be able to impose would be severely felt in Germany; and also, that no rule in the declaration of London obstructed their plan of enforcing the blockade by reconnaissance forces in the German bight, and by cruiser squadrons stationed at the entrance to the North sea.

xxxi) The naval and military war plans of the day are found to be incompatible

Meanwhile, however, discussions of great consequence were held in the Committee of Imperial Defence. In June, 1911, the German government sent the gunboat Panther to Agadir, and, by so doing openly challenged French policy in northern Africa, and by implication, the British government's recent agreements with France. On 23rd August, 1911, therefore, the high naval and military authorities assembled in Whitehall Gardens to discuss and explain their plans for giving assistance to France if Great Britain became involved. The discussions proved, that, for the last three years, the Admiralty and the War Office had been elaborating two incompatible plans. The high army command had been satisfied, that, by virtue of decisions made previously, an expeditionary force of six divisions was to be transported to France, if the cabinet ruled that assistance was to be given. They had never contemplated any plan but this. Sir Arthur Wilson, on the other hand, had been elaborating plans for blockading Germany, and for making the blockade effective by seizing German islands on the Frisian coast, and by capturing Heligoland - operations which were only possible if the army assisted. In addition, the army authorities had always been confident, that the navy would protect the expeditionary force during its passage to France. Sir Arthur Wilson certainly stated, that, as far as he could tell, the expeditionary force could cross the Channel safely, but he refused to give that definite assurance which the army leaders wanted. Let his own words be quoted:

      The reply of the Admiralty was...... that the navy could spare no men, no officers, and no ships to assist the army. The whole force at the disposal of the Admiralty would be absorbed in keeping the enemy within the North sea. Ordinarily, the navy would furnish transport officers and protecting ships. These could not be furnished in the circumstances......

The Committee of Imperial Defence passed no collective judgment upon the two plans that were thus laid before them. Nevertheless, it can be concluded, from all that has been written by persons who were present, that the meeting was the end of an old era and the beginning of a new one; for the army leaders certainly left the meeting satisfied that their plan of making war on the continent had been endorsed by the government.30

On the other hand the Admiralty's plan of blockading Germany, by patrolling the German bight, and by attacking Heligoland was not immediately superseded; for, although Sir Arthur Wilson issued new war orders a few months later, these orders only adjusted his plan to existing circumstances, and in no wise cancelled it. These new orders were in preparation when Lord Desart's committee assembled at Whitehall to decide what measures should be taken for severing commercial intercourse between Great Britain and Germany in war. This was a matter so closely connected to military policy, that the committee made the Admiralty's intentions the starting point to their enquiry. Admiral Bethell informed them, that the Admiralty still intended to blockade the German coasts, and he repeated the forecast that had been made some years previously, about the probable consequence. Later, he explained that large operations would be undertaken in the German bight, and that these operations would diminish that indirect trade through neutral harbours, which had been assumed to be unimpeded when previous enquiries had been made into the matter. The operations contemplated were explained in the war orders issued by Sir Arthur Wilson a month later. They were orders for such operations as Sir Arthur Wilson still felt able to execute in the German bight: the bombardment of Heligoland and its subsequent capture by the Royal Marines; an even closer watch on the German bight; and a blockade enforced by all vessels stationed in the North sea.

xxxii) Misgivings about the latest naval war orders

It has already been said that the meeting of 23rd August was the end of an era. The era ended more abruptly for the army authorities than for the navy; for the meeting freed them, once and for all, from the burden of a strategy that they considered unsound, but which was yet not easily abandoned, in that it was traditional and suitable to the nation's temper. The navy was not released so quickly from these conservative projects: the war college had, it is true, been instituted several years before, and if the naval staff, which was to have been complementary to the college, had been instituted at the same time, then, the instructions subsequently issued to the fleet would probably have been representative of collective naval opinion. The naval staff was not, however, immediately established, and, in the meantime, the war college became a store house for the opinions of a new generation of naval officers, who disagreed with Sir Arthur Wilson's conceptions of strategy and tactics, who held them dangerous for sound professional reasons, and who were debarred from explaining their apprehensions, for so long as Sir Arthur Wilson remained at the Admiralty, and refused to admit, that war plans were anybody's concern but his own. In order to do justice to each side, and to explain why plans issued in the year 1911 were so suddenly reversed, it will be necessary to trace these divisions of professional opinion to their sources.

It will have been understood, that the great purpose evident in all war plans issued since 1905 was to strengthen our hold upon the German bight. The forces that were to maintain this close patrol were destroyers, light cruisers and flotilla leaders, and, in each successive plan, more units are allotted to the purpose. Now, the first source of the division between Sir Arthur Wilson and the younger flag officers was, that, whereas he had only commanded these types of vessel as a fleet commander, many of them had actually served in them, and had formed their own opinion of what could, and what could not, be done with such ships. Also, which was perhaps even more important, Sir Arthur Wilson had commanded the fleet in days when the old dread of a great hostile combination still pressed heavily upon the high naval command; so that the fleet exercises, in which he had shown such unrivalled skill, had generally been modelled upon the pelagic operations that were conceived to be necessary for forestalling a concentration of hostile navies. The newer school held, therefore, that although Sir Arthur Wilson had tested, and was well able to judge, what could be done with these light forces in great strategic combinations, he did not realise how difficult it would be to use these forces for the purposes he intended.

The younger flag officers were thus at issue with Sir Arthur Wilson on a purely professional question: it does not appear that they disputed the Admiralty's calculations about the economic consequences of a partial blockade. Indeed, it would seem - for reasons which will be given later - that they were inclined to attach great importance to it. Their disagreement was, however, disagreement on a point of principle. They did not believe that this close watch on the German coast could be maintained, from which it followed that a blockade of Germany could not be attempted. In a normally constituted society, the collective opinion of one section prevails over that of another or amalgamates with it by a slow and gradual process. There was, however, little of this infiltration of new opinions upon old, until Sir Arthur Wilson left the Admiralty, when a new board was appointed and a naval staff established.

xxxiii) In the war orders finally issued to the fleet the blockade of Germany is abandoned

As the new high command considered, that, if any attempt were made to execute the existing war plan, the fleet would sustain severe and even dangerous losses, during the first weeks of the war, it was natural, that they lost no time in cancelling [31] it, and superseding it by another. They did, indeed, prepare a new project very quickly; for the first draft was ready in May, 1912, and this draft, after many alterations in points of detail, but few or none in points of principle, became the orders under which the fleet took up its war stations in August, 1914.

The great novelty in these orders is, that, henceforward, there is to be no watch upon the German bight, and that no coastal operations are to be attempted, until the German fleet has been fought and defeated. The fleet and the cruiser squadrons were, therefore, all withdrawn to the outer edges of the North sea, and frequent sweeps into German waters were substituted for the permanent patrol of previous projects. In these orders, therefore, the blockade of the German coast was specifically abandoned. Admiral Troubridge, who was then chief of the staff, seems to have hoped that the watching forces now stationed at the head of the North sea could be vested with the rights of a blockading force, if the declaration of London were not ratified. This was, however, quite untenable; it was not the declaration of London, but the declaration of Paris that made this impossible.

The project of blockading the German coasts, which had been examined so frequently during the previous four years, was thus abandoned in May, 1912. From that date, the economic objects of the war plan were to stop all trade that was being carried under the German flag, and to confiscate all contraband that was on its way to the enemy. It is curious, however, and very difficult to explain, that the Admiralty staff were confident that this new and restricted plan of economic warfare would give all the consequences of the old: their words are explicit:

      The general idea upon which the initial stage of operations will be based is to utilise our geographical position to cut off all German shipping from oceanic trade. The situation will offer a parallel to that which prevailed in the Anglo-Dutch wars, and the same strategy will be applicable. Investigations have shown that such a proceeding would inflict a degree of injury upon German industrial interests likely to produce serious results upon the economic welfare of the whole State. A close commercial blockade is unnecessary for this purpose provided that the entrances to the North sea from the westward are closed.

xxxiv) The final preparations for economic warfare, the significance of what was done

At about the time that these war orders to the fleet were in preparation, the government endorsed a long report upon trading with the enemy in war. It has already been shown, that the recommendations of the committee who drafted this report were complementary to the plan of blockading the German coasts. The committee do not appear to have been informed of the Admiralty's change of plans, for their recommendations, which all started from the assumption that the North sea ports would be blockaded, were inserted in the war book without alteration. A more particular account of these recommendations will be made later, and it must here be sufficient to say, that the committee drafted a number of decrees prohibiting direct trade with the enemy. They were, however, so persuaded that indirect trade with an enemy could not be stopped by legislation or decree, that they made little or no provision for restricting it.

The naval war orders and the recommendations of this committee may be said to be the only preparation made by the government for isolating Germany's economic system from the rest of the world, and this long preamble will have been written to no useful purpose unless it proves, that such preparation as was made was, in fact, none at all. When war was declared, we had laid plans for driving German traffic from the seas, for intercepting contraband if it were consigned to Germany, for withholding a proportion of British goods from the enemy, and for debarring them from the British insurance market and from the use of British banks. The code that had been elaborated with such care, and explained with such clearness, regulated [32] maritime operations if they were modelled on those of an earlier age. It was a good guide for captains in charge of cruiser forays, or for naval officers blockading some distant tropical colony; none at all for the diplomats and civil servants who erected an immense economic barrier and made it impassable. The ends in contemplation were thus so small a part of what was finally undertaken, that the connection between the two is barely traceable.

Yet it is only right to add, that a rising confidence in economic coercion influenced each successive naval plan; for the economic operations that were ordered so tentatively in the plan of 1908 were progressively elaborated, until, in the instructions finally issued, they supersede the old, military purposes, and are expressly stated to be the operation upon which the Admiralty relied for victory. It can, therefore, be said that the object eventually pursued was selected beforehand. But, if it has to be admitted, that economic coercion was recognised to be a powerful engine of war, it must be added, by way of qualification, that the recognition was no more than the recognition of a distant object: its outlines were faintly discernible through a mist of conjecture, which made all measurement of its mass impossible.

1See Senior, Doctors' Commons and the Old Court of Admiralty. See, also, the authorities upon which Gentilis relied. Most of them mediaeval and renaissance editors and commentators of the Corpus Juris. ...back...

2See Lord Liverpool's, Discourse on the Conduct of Great Britain in respect to Neutral Nations. ...back...

34 C.R., p. 66, Stert. ...back...

4See 3 C.R. 167, Imina. ...back...

5See Report of the law officers of the crown. 1753. Collectanea Juridica. ...back...

6Atlas 3 C.R., p. 303, Sally 3 C.R., p. 300, note. ...back...

7Vigilantia, 1 C.R., p. 1. ...back...

8Great Britain, France, Austria-Hungary, Prussia, Russia, Turkey. ...back...

9Contemporary opinion may have overestimated: latter day historians, such as Professor Channing, doubt whether the blockade of the confederate states reduced the southern armies. The tradition that it did so is, however, still strong, see Senator Williams's speech in the senate Jan. 22nd, 1916. In any case, contemporary opinion, strongly held and loudly expressed, influences public affairs more than the verdict of scientific historians. ...back...

10Research undertaken after this chapter was completed modifies this statement slightly. See Mr. Llewellyn Davies's article in Year Book of International Law, 1934. ...back...

11See 2 C.R., 111, Neptunus; 6 C.R., 393, Lisette; and 5 C.R., 385, William. ...back...

12In 1882, Hall, de Maartens Arntz, Bulmerincq, Gessner, Renault, Rollin, Travers Twiss and several others signed a sort of combined protest against the most famous of these judgements. ...back...

13Professor Holland's statement of the law. Appendix XXVIII, also para. 248 of report. ...back...

14Cmd. paper Russia No. 1, 1905. ...back...

15The First Hague Congress assembled in 1899, and the delegates signed a final act containing: a convention for the pacific settlement of international disputes, a convention regarding the customs of war on land, a convention for adapting maritime warfare to the principles of the Geneva Convention (1868). The final act also contained: a declaration to prohibit the discharge of projectiles and explosives from balloons; a declaration prohibiting the use of asphyxiating and poisonous gases in projectiles; a declaration prohibiting expanding bullets. ...back...

16The Prussian government in 1870. ...back...

17Hautefeuille, Kleen. See also, Phillimore, Vol. III, pp. 237-241. ...back...

18See Declaration of London, Chapter I, articles 1 to 21 for details. ...back...

19See Haabet 2 C.R. p. 179. Sarah Christina 1 C.R. p. 237. ...back...

20See, inter alia, the difficulties of Montcalm and Vaudreuil, when British command of the seas severed regular communication between France and Canada. (Waddington, La Guerre de Sept Ans). See, also, difficulties of the British naval commander at Boston in 1776, when storms and the American privateers had dispersed the supply ships. Beatson, Naval and Military Memoirs. ...back...

21Strictly speaking, he had to decide whether she was bound to: A fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy (article 34). ...back...

22See Mr. Gibson Bowles's article in the Nineteenth Century, May, 1909. ...back...

23See Brandt: Leven van Ruyter. Campaigns of 1672-4 passim. ...back...

24Stourm: Les finances de l'ancien régime. ...back...

25Arnould: Balance du Commerce. ...back...

26Naval Assistant Secretary, Committee of Imperial Defence. ...back...

27See Hansard, 14th February, 1911, p. 870, and 28th June, 1911, pp. 547, 548. Lord Fisher and Sir Arthur Wilson were both in favour of the declaration (see Mr. McKenna's statement). ...back...

28Enclosure to Admiralty letter 12th May, 1906. Section No. 3 F.O., Volume I. 328. Second Peace Conference Inter-Departmental Committee Papers: The Admiralty opinion is, that, in the case of a war with Germany, days of grace should not be allowed as regards German merchant ships, and it will be to our interest to hasten the moment when we can establish an effective blockade of the German coast in order to reap the utmost possible advantage from our maritime supremacy. ...back...

29Difficult to understand: the consuls at Amsterdam and Antwerp devoted several pages of their reports to these difficulties, and reported that they would be overcome. ...back...

30See Winston Churchill, World Crisis, Vol. I, pp. 55-61. The Life of Field-Marshal Sir Henry Wilson, pp. 99 et seq. ...back...

A History of the Blockade of Germany
and of the countries associated with her in the Great War:
Austria-Hungary, Bulgaria and Turkey.

by A. C. Bell (Historical Section, Committee of Imperial Defence).