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Part I

Chapter 2: The First Orders in Council

How naval control of the traffic routes was established and exercised. – How naval control was supplemented by scrutiny exercised from Whitehall. – The German naval war plan. – The instructions to the intercepting squadrons and the declaration of London. – The United States government and the declaration of London. – What was known about neutral and enemy trade when the ratifying of the declaration was considered. – The first order in council. – The legal doctrines of the first order in council considered. – The interception by the fleet and the growth of the administrative organisation. – Neutral suspicions are excited by a second proclamation about commercial traffic in the North sea. – The pressure of public opinion and the contraband proclamation of 21st September, 1914. – The first political controversy with the American government. – That the president had already decided to mediate between the powers at war. – Why the conciliation treaty could not be invoked usefully. – American legislation in the matter of shipping. – The American policy about the export of arms was still uncertain. – That the economic war plan was still unaltered, and what was then known about enemy trade. – That the indirect trade of Germany had not been checked by the powers conferred in the last order in council. – The negotiations with the American government. – The order in council of 29th October, 1914.

As soon as war was declared, the government issued all the proclamations and orders in council, that had been prepared by Lord Desart's committee, and incorporated in the war book.1 Indeed, it can be said, that almost before the fleet had reached its station, measures had been taken for withholding the resources of the British empire from the enemy. But these measures, although taken concurrently with the measures taken at sea, were executed independently. A special committee, presided over by Sir John Simon, was formed to examine all applications from exporters, and to grant licenses; and this committee was only loosely connected to the offices that were supervising the interceptions of the fleet and the stoppage of contraband. Indeed, several months went by before the Foreign Office, or the Admiralty, were able to estimate what wants or economic difficulties were being inflicted upon the central empires by the withdrawal of British supplies. The measures taken at sea, on the other hand, were immediately productive of political and economic consequences; and for this reason, it will be as well to postpone an examination of the legislation prohibiting trade with the enemy until later, when its effects were visible.

i) How naval control of the traffic routes was established and exercised

The arrangements for intercepting German commerce on the high seas worked smoothly. The duty of destroying and capturing German shipping was imposed upon all naval forces at sea; but more particularly upon the cruiser squadrons in the Atlantic. The interception of contraband was a duty entrusted to two squadrons: cruiser force B, known later as the tenth cruiser squadron, had instructions to watch between the Shetlands and Norway, and cruiser force G to spread on a line between Ushant and the Lizard. This watch on the western end of the Channel was supplemented by the Downs boarding flotilla.

These arrangements were executed without a hitch. On 5th August, Admiral Wemyss took his squadron to the mouth of the Channel, and set up a patrol between the Eddystone and Triagoz lighthouse.2 He found, when he reached his station, that the French admiralty had ordered a squadron to patrol in the same waters, under the command of Admiral Le Cannellier; Admiral Wemyss, therefore, at [34] once made arrangements for dividing the work with his colleague. The Downs flotilla was at its war station on the same day; and on 9th August, Admiral de Chair's squadron was on its patrol line between the Shetlands and Norway.3 Five days after war was declared, therefore, all shipping routes to Germany and northern Europe were under observation.

By virtue of a convention signed on 6th August, 1914, the British forces in the Mediterranean were placed under the orders of Admiral Boué de Lapeyrère, the French commander-in-chief, and Malta and Gibraltar were made bases for the French fleet. It does not appear, that the French admiral ever thought it necessary to assemble special cruiser squadrons, for watching and intercepting Austro-Hungarian trade; but he stationed considerable forces at the entrance to the Adriatic, and kept it under continuous observation. These dispositions were altered, later, but the sea-borne trade of Austria-Hungary ceased to flow a few days after war began, and neutral shipowners did not attempt to revive it for many months. It will now be proper to describe how the rights of intercepting commerce and inspecting cargoes were exercised by the officers of these squadrons.

When a vessel had brought to, in answer to a summons, or to a shot fired across her bows, the commanding officer of the summoning cruiser at once ordered a boat to be lowered, and two officers went away in it to the merchantman. When the visiting officer came on board, his first duty was to identify the ship, and to discover whether she was what her captain declared her to be. This was ascertained by consulting the certificate of registry, a document which gives a large number of particulars, and by comparing it with Lloyd's register. Although it might be just possible to forge a certificate of registry, and to disguise an enemy merchantman as a neutral, it is doubtful whether the disguise could ever be made perfect, as an experienced seaman would discover too many inconsistencies during his inspection. It is true, that Captain Count von Luckner disguised a raider as a Norwegian timber ship, and that his vessel was inspected by our patrols, and allowed to pass; but Count von Luckner was assisted by the state dockyards, and the entire German consular service: a commercial company would find it practically impossible to imitate Luckner's performance.

A ship's identity, then, was easily verified; but it was not so easy for naval officers, knowing no language but their own, to ascertain whether individual passengers and members of the crew, calling themselves Norwegian, Swedes, Finns or Greeks, were not really disguised enemies. First, the lists of the passengers and crew had to be inspected, and roughly tested; as a rule the entries on these lists gave no indication of any irregularity; there might, however, be slight inconsistencies, which indicated to the visiting officer what persons should be closely examined later. This subsequent examination was conducted with the assistance of printed lists of unusual words, in every European language, and with the aid of drawings of familiar objects. Even though an enemy subject had an exceptional knowledge of the language he professed to talk as a native, it was not likely that he would, in rapid succession, give the right word for such objects as a bicycle pedal, a bicycle chain, an instep, a cheek bone, a nasturtium or a frying pan. If the answer of a member of the crew, or a passenger, were unsatisfactory, during this test, his effects were rigorously examined. On the whole, it can be said, that this examination did invariably establish the facts relevant to the vessel's nationality and to that of the persons in it. The inspection, moreover, became increasingly easy. Our cruisers patrolled across regular traffic routes; so that, in course of time the officers became familiar with the ships that had to be examined, and with their officers and crew, in consequence of which anything unusual was at once noticed.

[35] Our officers had also to decide whether the ship inspected was actually prosecuting the voyage declared in the papers. If neutral masters had ever intended to alter their pretended destination, after they had been inspected at the entrance to the North sea, or in the straits of Dover, it might have been a matter of some difficulty to penetrate their intentions; for the ship's track across the Atlantic, which was always ascertainable from the noon positions recorded in the log, would have given no indication of the ship's subsequent course across the North sea towards Germany. Probably, however, an experienced seaman would have discovered something suspicious, by subjecting the officers and the crew to a severe cross examination. In point of fact, these disguised voyages were never attempted. Most of the ships inspected belonged to well-known Scandinavian and Dutch shipping companies, whose directors and managers would never have allowed their masters and agents to break American law by obtaining false clearance papers. Apart from this, American shippers of contraband had always intended that the cargoes should be sent to neutral consignees, and by them forwarded to the enemy; and that the papers, that came under the inspection of our boarding officers, should be in perfect order.

It was this circumstance that made a naval inspection of the cargo papers almost useless. The nature of the cargo and the names of all the consignees could certainly be ascertained from the digested statement called the manifest; and the manifest could be checked by the mates cargo book, and the bills of lading. But a boarding officer had no means of discovering anything at all about the consignees, or the nature of their business, or whether the articles of cargo being carried to them were of a kind that suited with their business; and, as it was just these facts which had to be ascertained accurately before anything could be decided about the cargo, it is not too much to say, that, when war began, naval officers in the intercepting squadrons had no means of discovering whether there was anything suspicious in a cargo or its destination. It was with these circumscribed powers of inspecting neutral cargoes that the squadrons went to their war stations.

ii) How naval control was supplemented by scrutiny exercised from Whitehall

From the outset, therefore, it was evident to everybody concerned, that our rights of interception would be more exercised from Whitehall than at sea; that the fleet would be little but constables and controllers of neutral traffic, and that it would rest with the central authorities to ascertain those facts about cargoes and their consignees, which would determine what rights of detention we could legally exercise.

Very little provision had been made for this. In August, 1914, and indeed, subsequently, the reports from the intercepting squadrons were sent to the trade division of the naval staff, which had been formed to watch the movements of British trade, and to recommend measures for its protection and security. The officers of this division were never ordered, specifically, to deal with contraband questions, but appear to have assumed that they were included in their general schedule of duties; for all orders to the boarding flotillas were sent by the trade division throughout the war; and it was in this division that the nucleus of the contraband committee was formed. The first members were: Mr. Leverton Harris, who had entered the Admiralty's service as a volunteer; Captain Longden - of the trade division - and Mr. Flint, an Admiralty civil servant. These gentlemen met, as occasion required, in a room in the old part of the Admiralty, and scrutinised such reports of detentions as had been transmitted to the Admiralty by the boarding officers at Kirkwall and the Downs. Realising, from an early date, that the collaboration of the Foreign Office would be necessary, the Admiralty asked that a member of that office should attend the meetings.

[36] These Admiralty officials, working in collaboration with the Foreign Office, were the first contraband committee, or to speak more accurately, the body that became later the contraband committee.4 During the first months of the war, however, they had no corporate existence, for they did not begin to keep a minute book until November. The reports from the boarding flotillas and the intercepting squadrons were absorbed into the records of the trade division; and the reports that were sent to the Foreign Office, or prepared by the legal advisers of the Foreign Office, after consultation with the officers of the trade division, were, for the most part, recorded in the register of the treaty department. From the beginning, however, the duty of ascertaining whether a ship should be detained or released was performed mainly by the Foreign Office. As soon as it was evident that inspections at sea would never collect the necessary evidence, the Foreign Office devised a rough system of special enquiries, which will be described later.

During the first weeks of August, the intercepting squadrons were mainly employed in diverting British vessels into port, if they were carrying cargoes to northern Europe, and they hardly interfered at all with neutral trade. Such reports of trade and traffic as had come into our hands showed that an immense convulsion was shaking the industrial structure of America and Europe, and that the German people were feeling the convulsion severely. A large number of metal industries in the Rhineland had closed down, and the German newspapers did not disguise, that there was a universal shortage of raw materials, and that a considerable number of industries would, sooner or later, be affected. On the other hand, our authorities were satisfied, that the industrial upheaval in Germany was due, largely, to the sudden mobilisation of the German armies, whereby between thirty and forty per cent. of the skilled hands in every large concern had been called to the colours. It was realized, therefore, that, until the German industries had been adjusted to this new state of affairs, it would be impossible to estimate how much economic damage would be inflicted by the withdrawal of the German merchant fleet, and by the loss of the supplies that were ordinarily obtained from the British empire, France and Russia. Neutral countries were also very much affected by the diversion and stoppage of ocean traffic, and seemed, for the time being, to be threatened with a shortage of foodstuffs: the Dutch and Scandinavian governments were strictly prohibiting their export, and were endeavouring, with the greatest energy, to secure the necessary supplies.

iii) The German naval war plan

It was during these opening days of the war, that the enemy embarked upon a minelaying campaign, which was a sort of starting point to another campaign, more embracing and terrible, yet waged with the same intention of interrupting our essential supplies. And although this first mining campaign was not productive of the consequences of the campaign into which it developed, it did, nevertheless, at once influence both the measures that we took at sea, and our political relations with neutrals, for which reason it will be necessary to give an account of it.

[37] After long discussions between the emperor and his naval advisers, of which a more exact account will be given later, the German authorities decided to avoid a fleet action in the North sea, to weaken the British fleet by intensive mining, and to prepare for a major action in the Heligoland bight by appropriate tactical exercises. It is true there is no instruction to obstruct commercial traffic by minelaying in the orders finally issued to the German fleet; but it is evident, from the positions of the minefields laid in execution of these orders, that this was also the enemy's intention. On the night of 4th August, therefore, the commander of the minelayer Königin Luise put to sea under orders to lay mines as near as possible to the English coast, off the mouth of the Thames. Captain Biermann attempted to reach the King's channel, but, finding that British forces were barring his way, he turned, and laid a long line of mines twenty to thirty miles east-north-eastwards of the Aldeburgh Napes. He had hardly completed his work, before the British cruiser Amphion, with a flotilla in company, fell in with him and sank him. The position of the minefield was, however, not accurately determined for some time, and ships were at once lost upon it. On 6th August, the Amphion herself struck one of the mines and sank, and losses continued for several weeks.

In all this the enemy were strictly within their rights, and the Admiralty would have been well advised to accuse the enemy only of disregarding a custom of war, which every other nation would have considered binding.5 In the excitement of the moment, they committed the government to charges, which, though honestly believed, were actually untrue, and to threats, which had an ill-effect upon the temper of neutrals. On 10th August, the Foreign Office sent out a circular telegram, which had been prepared by the Admiralty. In it, the enemy were accused of scattering contact mines indiscriminately about the North sea, whereas they had, in fact, only laid one single minefield, which ought by then to have been accurately located. Secondly, the North sea was stated to be perilous, in the last degree, to merchant shipping of all nations. This was an exaggeration, made in good faith it is true, but an exaggeration nevertheless; for the German minefield only endangered ships engaged on the Anglo-Dutch trade. Finally, the Admiralty declared themselves free to take similar measures in self defence; but, before doing so, they thought it right to issue this warning, in order that merchant ships under neutral flags trading with North sea ports should be turned back before entering an area of such exceptional danger.

This warning was issued to neutral governments, who presumably invited the German diplomatic representatives to give an explanation. As it is never difficult to ascertain that an exaggerated statement contains exaggerations, it is not surprising that this proclamation made neutral statesmen extremely suspicious. The Netherlands minister for foreign affairs, at all events, informed our minister, that he did not believe the charges we had levelled against the German government, and considered the entire proclamation to be a device for diverting the Rotterdam trade.

iv) The instructions to the intercepting squadrons and the declaration of London

For the moment, however, neutral shipping was not turned back, and the business of examining ships was conducted regularly. But notwithstanding the smoothness and regularity with which the naval war plan had been put into operation, a pressing question had to be settled before our plans for intercepting contraband could be executed. The government had now to decide whether they should, or should not, circumscribe stoppages of contraband by the rules of the unratified declaration of London. Until this had been decided, there could be no uniformity in the conduct of the allied fleets, apart from which political issues of some importance were involved.

First and most important, the mere fact that the declaration of London had not been ratified did not, in itself, leave the British government free to disregard it altogether. British representatives had contributed to the document, and had endorsed its provisions, with the support of the government which had appointed them. The British government were, therefore, committed to the proposition, that the rules contained in the following chapters correspond, in substance, with the generally recognised principals of international law; for this was the preliminary provision to the declaration, and was an integral part of it. The declaration was therefore, not merely a codification of law; it was also a declaration of British maritime policy. Nor had one section of the British administration pressed the declaration on another, and overcome its opposition. The naval and political members of the British delegation had disagreed, at times upon questions of technical detail, but they had agreed upon the instrument as a whole. Indeed the Admiralty had endorsed it more decidedly and emphatically than the Foreign Office, for they had incorporated the declaration into the naval prize manual practically without alteration. Finally, it was notorious that when war broke out, the government intended to reintroduce the naval prize bill, with some slight alterations, and to endeavour to secure ratification. In view of all this, no British government could consider that they were free of all obligation to observe the declaration of London; for if the British government had proclaimed that they intended to ignore the declaration, they would thereby have proclaimed to the whole world that they had suddenly, and without warning, reversed a policy which they had consistently followed during the previous decade; and this would have been a line of conduct which no experienced statesman would willingly adopt.

The question of expediency was equally pressing. The declaration of London was a code which reconciled British, American and continental practice. The French fleet was now co-operating actively with our own at the mouth of the Channel and in the West Indies; if neutral merchantmen and contraband cargoes were to be examined, released and condemned upon a uniform system, the declaration of London would obviously have to be observed in large measure.

v) The United States government and the declaration of London

It was, in any case, impossible for the British government to withhold a decision and to wait upon events, for the pressure of allied and neutral governments was strong and insistent. On 7th August, before the fleet had even reached its war stations, the American ambassador called upon Sir Edward Grey and asked him whether the British government intended to ratify the declaration.6 Sir Edward, who had just received news of the Aldeburgh minefield and the loss of the Amphion, replied that the enemy evidently considered themselves at liberty to endanger sea traffic by every means in their power, and that he doubted whether the British government could undertake to observe every rule in the declaration. The American [39] ambassador was, however, under instructions to press for a definite reply, for, on the following day, he presented a note, in which he urged Sir Edward Grey to accept and observe the declaration as it stood. By so doing, the British government would probably avoid grave misunderstandings between belligerents and neutrals. This was followed by a note informing us, that the enemy governments were prepared to observe the declaration, if the entente powers did so. It seemed, moreover, that our allies were as anxious as the American government, that the declaration should be observed, for the French government sent us a draft decree, in which they declared themselves ready to respect the declaration, and, a few days later, the American ambassador told us, that the Russian government were prepared to accept the declaration. It is true, that it was not Mr. Page's business to inform us of this, but it was obvious, that the American government were canvassing all Europe on behalf of the declaration, and were persuading influential voters.

Sir Edward Grey stood firm. He was much influenced by the news of the German minelaying campaign, and considered, that the Admiralty must decide whether the position at sea justified us in taking exceptional measures. He, therefore, referred the whole correspondence to the Admiralty, who replied, That Their Lordships did not propose that steps should be taken to ratify the declaration of London at the present time. This, however, was insufficient: in a long and closely reasoned memorandum Mr. Hurst showed, that the government must decide what parts of the declaration were to be observed, and what parts were to be neglected.7 The fleet had already begun to intercept and examine neutral traffic, and were, presumably, observing the declaration, which had been incorporated into the naval prize manual. The prize courts, who would adjudicate on these captures, were bound only by the course of admiralty and the law of nations. There were numerous differences between the body of case law, which constituted the course of admiralty, and the rules of the declaration upon which the fleet was acting; and it was a matter of pressing importance to resolve them. A general conference was, therefore, assembled at the Foreign Office to consider the matter.8

vi) What was known about neutral and enemy trade when the ratifying of the declaration was considered

When this conference assembled, it was still impossible to observe the enemy's trade, or to discover in what directions it was moving. It was, however, well ascertained, that the enemy's merchant fleet had withdrawn from the open sea, and did not intend to move. More than this, it was evident the flow of British supplies was not likely to be seriously interrupted. Enemy's raiders were abroad, unlocated, and there had been temporary dislocations, due to nervousness and uncertainty at some of the great ports of shipment; but, in every ocean, British merchant captains were putting to sea, and proceeding about their business, with a sturdiness of purpose, which excited the admiration of the whole world. At the outbreak of war, well informed persons would have been justified in fearing serious interruptions in the flow of British trade, but their fears were now laid for ever: the danger had been tested, and had proved to be no danger at all. It was, therefore, highly improbable that British freighters would be supplanted by neutrals, and there was, in consequence, no need for the conference to consider, whether it would be politic to uphold any special immunities for neutral trade.

But although no statistics were yet available, it required but little prescience to realise that Germany's indirect trade through Holland would sooner or later be [40] important, and that we ought most carefully to review our powers of intercepting it. When they answered the French government's proposal, that the declaration of London should be observed ad literam, the Foreign Office had drawn attention to:

the peculiar conditions of the present war, due to the fact that neutral ports such as Rotterdam are the chief means of access to a large part of Germany; and had added, that, exceptional measures have been taken in the enemy county for the control by the government of the entire supply of foodstuffs and have convinced H.M. government that modifications are required in the application of articles 34 and 35 of the declaration.

Since then, all the information we had been able to collect showed, that the German authorities were confident the economic difficulties, that temporarily beset the country, could be overcome by expanding and organising German trade with neutral states. This endeavour to build up an indirect trade was powerfully supported in the press; and articles for the guidance of the smaller trader were being published daily. Some leading articles were indeed little but practical handbooks.

      In many circles, wrote the editor of the North German Gazette, there seems a good deal of bewilderment at the alterations in overseas trade, as the ordinary means of transportation through German ports in German vessels are no longer available. This solicitude is not justifiable. All that has to be done is to find new transport routes by neutral countries...... Thus, from now onwards, a boat is to leave Rotterdam every Saturday for New York........ The first steamer bound for Brazil is leaving Göteborg on August 24th and touches at Christiania on the 27th. In like manner the route via Genoa is open. Another route is via Copenhagen to which we particularly draw the attention of exporters.

What measures we should take against this indirect trade was, indeed, the question uppermost in everybody's mind. The news from Holland showed, moreover, that the Dutch regarded this trade as specially protected by the Rhine convention. As they interpreted that instrument, a consignee or an exporter might declare, that a cargo was in transit to Germany, after its arrival in Rotterdam; and, if the declaration were made, the Dutch considered they would have no right whatever to detain the goods. The declaration of London further protected this flow of goods; for, if that instrument were rigidly observed, all foodstuffs, and all those articles of general trade that were upon the conditional contraband list were exempt from capture, if they were consigned to neutrals. To observe the declaration on this point, would have been equivalent to resigning our rights of interfering with this trade for ever.

This, in brief, was what was known about the course of the enemy's trade, when the conference assembled; but it so happened, that it was not the known facts, but a vague and unconfirmed rumour that influenced the conference decisively. The Admiralty believed that the German government were then controlling the supply of all foodstuffs in the country, and the home secretary pointed out, that this virtually turned every German dealer in foodstuffs into a state contractor. If this were so, all food consigned to Germany could be treated as absolute contraband under the provisions of the declaration. The rumour was shortly afterwards proved to be untrue, but it was believed at the time, and it swept away any doubts that the conference may still have entertained, by focussing attention upon the importance of firmly upholding our right to intercept the indirect trade of Germany. It was, therefore, decided unanimously, that the doctrine of continuous voyage must be applied against cargoes of conditional contraband, and that an order in council must proclaim our independence of the artificial rules of the declaration.

vii) The first order in council9

This order was issued on 20th August; the French issued a similar decree a few days later. The two governments undertook, that the declaration of London should be observed with certain modifications. The most important of these referred to the ultimate destination of conditional contraband: First the government proclaimed [41] that any sufficient evidence would be accepted, if it raised a presumption that conditional contraband was being carried to the enemy's armed forces or to an enemy department of state. This exception was extremely important, for, according to the declaration, a ship's papers were to be regarded as conclusive evidence of the destination of a ship and its cargo. Henceforward, therefore, the British government were free to ask, that a cargo of conditional cargo [Scriptorium: sic; but should read contraband] should be condemned, if their agents abroad could collect such evidence as would satisfy an impartial tribunal, that the cargo had an ulterior enemy destination. A further clause was inserted to meet the situation that was supposed to have been created by the German government's control of foodstuffs. Most important of all, however, was clause number five, which declared that conditional contraband, intended for the use of the enemy state or the enemy's armed forces would be liable to capture, to whatever port the vessel was bound, and at whatever port the cargo was to be discharged.

viii) The legal doctrines of the first order in council considered

As German statesmen have not only declared this order to be a flagrant violation of the law of nations, but, as far as can be judged, have honestly believed it to be so, it will now be proper to examine the doctrine of interception that was announced in it. This examination will be clearer, if the distinctions between conditional and absolute contraband are, for the moment, laid aside, and the bare doctrine of contraband destination is alone considered.

There had never been any question that contraband was confiscable when consigned to an enemy; but, as British case law had been built up in days when consignments of contraband were made direct to an enemy, or not at all, no decision had ever been given in our prize courts, about a cargo of contraband consigned to a neutral for subsequent transhipment to an enemy. The American courts certainly held, that, although the British doctrine of continuous voyage had been enunciated only in cases arising out of the colonial trade, and the trading with the enemy proclamations, the doctrine was, nevertheless, a general principle of law, and that it was no distortion of the principle to rule, that it forbad any colourable interposition of a neutral harbour. If the decisions made in the American courts had been endorsed by European legal opinion, they would have settled a point left doubtful in the older body of the law. Those decisions were, however, very much criticised by European lawyers, and there was a general disinclination to admit that they could be treated as precedents.

Nevertheless, many European lawyers of eminence agreed that the old law needed some elaboration, and they seem, also, to have agreed, though only in a general way, that a contraband cargo did not cease to be confiscable merely because its immediate destination was a neutral port. In 1896, so impartial and learned a body as the institut de droit international agreed that la destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports, ou bien à un port neutre, qui d'après des preuves evidentes, et de fait incontestable, n'est qu'une étape pour l'ennemi comme but final de la même operation commerciale. This had been the American doctrine for half a century, and the few prize cases decided by continental courts seemed to confirm it.

As to conditional contraband, it can only be said that it was certainly confiscable if it was being sent to a special, military destination; the case of conditional contraband that was being sent to this special destination through a neutral harbour seems never to have been examined. On the other hand, there is no indication, that expert lawyers ever considered, that this rule of special destination excepted conditional contraband from the more general rule (if they were prepared to admit it), that contraband of all kinds was confiscable, if found at any point of a devious journey to the enemy. It was regarded as an additional, but not an exclusive, test.

[42] The powers present at the London conference expressed the following opinions:

The United States repeated the general rule, that a special military destination must be proved; but gave no opinion about transportation from a neutral harbour to that special destination.

France maintained, merely, that the final destination of all cargoes decided whether they were, or were not, contraband.

Italy upheld the same doctrine.

Japan was more explicit. Their representatives agreed, that a special military destination must be proved against conditional contraband, but applied the rule of continuous voyage to both classes of contraband:

      Goods aboard a ship are presumed to have a hostile destination, if the destination of the vessel is a place which, for geographic or other reasons, may be regarded as the last stage in the transport of goods, to a hostile destination, whether by transhipment or carriage by land.

Russia maintained, that contraband was confiscable, if it was to be transported from a neutral harbour to an enemy, or to the special military destination required in the case of conditional contraband.

Great Britain also upheld the doctrine.

On the opposite side were: Spain, the Netherlands, Germany and Austria-Hungary, which all upheld the old rule, that the immediate destination of a ship decided whether a cargo were contraband or not. The position was, therefore, that the majority of the governments represented were agreed that contraband, of every kind, was confiscable at every point of its voyage to an enemy. The opinion of a majority on such a question can hardly be said to constitute a rule of law, but, at least, it was a nearer approximation to it than the dissentient opinion of the minority.

In spite of German opposition this general rule was agreed to, and if the conference had been free to act upon the logical inferences of the rule, then, the treatment proper to be given to conditional contraband would have been easily established. The rule for this class of contraband would have been, that it was to be subjected to two tests; first whether its destination were hostile territory, and, secondly, whether its last recipient were armed forces, or state contractors for armed forces. Neither of these tests would, however, have been in the least affected, if the first destination of a cargo of conditional contraband were a neutral harbour; for if the rule were good, that foodstuffs were contraband if they were to be consumed by armed forces, then, it mattered nothing, whether those were sent direct to the armed forces, or transmitted to them by neutrals, as the condition that made them contraband was fulfilled in both cases.

The conference was not, however, free to decide as logic and reason dictated; for the German delegates, having assented, very reluctantly, to the general doctrine of contraband insisted, that if conditional contraband were consigned to a neutral port, no presumption of its ultimate military destination could be raised. Unless this had been acceded, it is probable that the conference would have failed.

This was embodied in the thirty fifth article, but the origins of that article - here briefly examined - must surely discredit the contention that the article was a recognised rule of law. Quite the contrary; it was an illogical exception, supported by no precedents, and was admittedly a compromise agreed to for political convenience. This becomes even more obvious, if the indirect origins of the article, that is, the reasons for the German insistence, are enquired into.

When the German authorities refused to admit, that contraband could be stopped during a devious voyage, they must surely have been thinking of the arrangements that they were making for supplying the country in war. At the date of the conference (December, 1908), the German naval and military authorities were already anxious [43] about German supplies of imported foodstuffs, and although the question was, at the time, more a subject of enquiry, than a matter upon which regulations had been issued, certain precautions had then been taken.

      It was known in the year 1888, writes their official historian, that France had bound Belgian agents, to hold a certain supply of meal at the disposal of the French authorities...... Warned by this example, the Prussian war ministry got into touch with the German consuls-general in Holland and Belgium, in order that they should organise German supplies, with the aid of trustworthy agents, if there were danger of war.

These trustworthy agents were, presumably, persons on the Dutch or Belgian corn exchanges, and, if the bare principles of the law of conditional contraband had been left unaltered, these persons would certainly have been classed among those consignees who made conditional contraband confiscable; for they would have been agents to the German consuls-general, and contractors to the Prussian war ministry. This alone gave the Germans a very good reason for forcing their exceptions upon the conference, and it would seem as though they had a stronger reason even than this.

The exact date at which the German naval staff completed their preparations for waging war upon the outer oceans cannot be fixed with certainty. It was, presumably, a rather later date than that of the conference, but the arrangements, when completed, were so elaborate, that they must surely have been in preparation for many years. The arrangement was, that German naval officers should be sent to neutral harbours in the Pacific and Atlantic, and should there charter supply steamers for the German squadrons. It was, of course, always recognised, that the cargoes of these supply ships, and indeed the ships themselves, would be confiscable after they had been despatched to their secret meeting places with the German war ships;10 but the German government had an obvious interest in insisting upon a rule of law, which would protect them during the first part of their journey, from some neutral port of supply, to the port where the German naval staff had established a distributing agency. On the whole matter, therefore, it can be said, that this first British order in council must have given the German authorities great anxiety, for it menaced their arrangements for securing supplies; but it cannot be said that it violated any recognised law. It abrogated an unratified compromise, which the German authorities had a special interest in upholding.

ix) The interception by the fleet and the growth of the administrative organisation

The fleet was now free to intercept all cargoes of foodstuffs consigned to Germany through neutral territory, and the necessary orders were issued. On the other hand, the order in council only asserted a legal right, and did not, in itself, give us the means of exercising it. With regard to this, all depended upon the collection of proof that cargoes were consigned to Germany, and, at the moment our organisation for collecting proof was hardly laid. The following steps, however, had been taken.

At the order of the Admiralty, a special committee, called the restriction of enemy supplies committee, had been formed, and had been given offices and a permanent secretary.11 This committee was an important addition to the administrative machinery, and, in order to ensure that it should be supplied with any information that could be of use, the Foreign Office had ordered every British consul abroad to report, daily, on such movements of trade and shipping as came under his observation. [44] When the order was issued, however, Sir Francis Hopwood and his colleagues had only held one meeting and had, indeed, only made a few preliminary recommendations.

It is, therefore, hardly surprising, that the fleet and the intercepting squadrons were, at this date, interfering but little with neutral commerce. Between August and October, Admirals Wemyss and de Chair only arrested three neutral vessels. The boarding statistics of the Downs flotilla have been lost; but there are no grounds for supposing, that the officers at Ramsgate interfered with neutral commerce more severely than the captains of the intercepting squadrons. On the other hand, the number of ships stopped and examined was considerable; and the system under which neutral ships were being inspected and released was causing a certain amount of delay. When the officers in the intercepting squadrons discovered, that a ship was carrying conditional, or unconditional, contraband to a neutral country, they at once sent her to the nearest port, for a thorough examination. This was undertaken by the local customs authorities, who reported the cargo by telegram to the Foreign Office: the minister of the neutral government concerned was then invited to give a guarantee that the cargo would not be re-exported. As the minister could not do this without communicating with his authorities, who, in their turn, had to investigate the matter, it can easily be understood, that several weeks might go by before the guarantee could be given, and the vessel released. These delays, moreover, caused misunderstandings; neutral merchants often declared, that their property had been seized, when, in point of fact, it had only been detained; and neutral ministers were, upon occasion, not very critical or judicious, when their countrymen urged them to lodge a protest. But the system, though irritating, had now been operated for long enough to be comprehensible, and neutral governments must have been conscious, that the British fleet had not obstructed their endeavour to obtain the supplies of food and raw materials, which were necessary to their countries' existence. These circumstances should be remembered by anybody who desires to understand the nature of the controversy in which the British government was about to be engaged. The controversy is not to be explained by any harsh or arbitrary action by the fleet or the administration; for the records show, conclusively, that the British fleet was, at this date, imposing practically no restraints upon neutrals. It was British intentions, not British belligerent practices, which were exciting suspicion. The order in council, the contraband lists, and the menacing circular about the enemy's minelaying, were provoking a general apprehension, and neutral statesmen in America and Europe were preparing their resistance.

x) Neutral suspicions are excited by a second proclamation about commercial traffic in the North sea

Neutral opposition was not, however, immediately manifest, and for the moment, the news from the continent made every other issue seem unimportant. When the order in council was published, the battle on the frontiers of France was just beginning: four days later it was lost, and the allied armies were in full retreat across northern France. At sea, the enemy pressed on with their mining campaign, and their second expedition provoked another threatening protest from the Admiralty. The actual facts were these. On the night of 25th August, two minelayers left the Jade. The Albatross, supported by the cruiser Stuttgart, and the 11th half-flotilla, laid a large minefield off the Tyne; the Nautilus, escorted by the Mainz and the 3rd half-flotilla, mined the approaches to the Humber. The Tyne minefield was about thirty, and the Humber minefield about twenty, miles from the coast. Notwithstanding that the expeditions had been sighted during their passage across the North sea, and that Captain Bonham, the inspecting captain of minesweepers, was convinced that the minefields had been laid by fully equipped minelayers, the Admiralty concluded, that the work had been done by fishing trawlers, disguised [45] as neutrals. All the east coast ports were, therefore, declared closed to neutral fishing craft, and neutral governments were again warned, that the Germans had scattered mines indiscriminately upon the high seas. It is true that neutral statesmen made no comment upon this second circular; but it is no very extravagant assumption to believe, that they were as sceptical about it as they had been about the first, and that it made them suspicious about our intentions.

xi) The pressure of public opinion and the contraband proclamation of 21st September, 1914

It was, moreover, something of a misfortune that the British government was exposed to a blast of popular fury at a moment when their policy was being so closely and critically watched by neutral governments; and that the press, which was then thoroughly terrified at the bad or doubtful news from the continent, should have been inflaming the nation, by urging that the enemy were at our gates, and that we were still deliberating; that necessity knows no law; and that the most delicate questions of policy must henceforward be subordinated to the rules of military expediency. This, however, was the position in autumn of 1914, when at least five newspapers were criticising the measures taken for stopping the enemy's supplies, and were showing, that cotton had not been declared contraband, notwithstanding that it was used in the manufacture of munitions. Of all questions then being agitated, this was, perhaps, the least suitable for discussion in a riotous assembly. The French authorities, moreover, were endorsing the doctrine of military expediency as heartily as the populace, and were urging Sir Edward Grey to declare that all articles that could possibly be used for munitions - cotton included - would be treated as contraband. As a concession, they were willing to agree, that cotton should not be mentioned eo nomine. An appeal from such a quarter could not be disregarded. The French government had recently left Paris, and were then in Bordeaux; the battle of the Marne had, it is true, been fought, and the victory of the allied armies had relieved the French of a load of anxiety. Nevertheless, the French contention about cotton and contraband was, in effect, an appeal that the British fleet should assist them energetically in their hour of trial, and was extremely hard to refuse. A conference of Admiralty, War Office and Foreign Office representatives was, therefore, convened to examine the contraband list then in force, and to report upon any additions that might be desirable.

It is impossible to say what the consequences would have been, if the British government had declared cotton to be contraband during these first months of the war. Cotton was on the free list of the declaration of London, and had been placed there as a concession to the United States. It would, therefore, have been transferred to the contraband list without any of those graduated preliminaries which made an unpalatable announcement just barely tolerable. We should, in fact, have declared, abruptly, to the United States, that an export trade valued at hundreds of millions of pounds, was liable to detention and confiscation. These facts speak for themselves and comment upon them is superfluous.

It was fortunate, therefore, that the technical experts at the inter-departmental conference were, for the moment, persuaded that cotton ought not to be declared contraband. They estimated that the enemy required only 7,500 tons of cotton waste, and about 1,000 tons of raw cotton, for the explosives then being manufactured. They would certainly secure these small quantities from some quarter or another, so that, by declaring cotton to be contraband, the British government would precipitate a violent conflict with the United States, without securing any advantage to the armed forces. The decision that cotton should remain on the free list was not, therefore, influenced by high policy: it was a recommendation of experts, based solely upon technical facts. The experts gave the same advice [46] with regard to nickel, which was, admittedly, a very important metal to the armament industries; on the other hand, the quantities used were not great, and Krupps were believed to have large stocks. Even though the British government stopped the American supplies, the German munition makers would not feel the loss.12 The experts reported, also, that antimony, bismuth, German silver, leather and zinc were, in their opinion, not worth stopping.

But the experts were convinced, that German supplies of those ores which are used in the manufacture of high grade steels, were of such importance to the arms factories, that they ought to be stopped, for which reason they recommended that haematite, which is raised in the Spanish mines, and magnetic iron ore, which is raised in Sweden, should be declared conditional contraband. As metallic ores of all kinds were on the free list of the declaration of London, it was only to be expected that the Swedish, and possibly the Spanish, government would protest vigorously.

The transfer of these ores from the free to the contraband list was, however, a small matter when compared with the recommendation that copper should be declared contraband. If contraband lists were judged legitimate or improper by the strict law of nations, then, the case for declaring copper to be contraband would be unanswerable; for it is used in every electrical installation and is, therefore, essential to wireless telegraphy, telephony, internal combustion engines and electric gun circuits. The production of copper is, however, controlled by a compact group of American magnates of princely wealth and influence, and the recital of a few facts will show that, if the British government gave effect to the recommendation, then serious political consequences were certain.

In the year 1914, about sixty per cent. of the world's supplies were raised in the American mines; in addition to which the American financiers controlled so many South American copper concerns, that about seventy per cent. of the world's copper was under American administration.13 The copper mines of America are, moreover, spread over five western states: Arizona, Utah, Nevada, Montana and New Mexico, so that the Americans most affected by a stoppage, would be Americans who had but little comprehension of the European war, and who, of all sections of society, would be the most inclined to be stubborn and defiant about American commercial interests. The great magnates, the staffs of the papers they controlled, and the popular representatives who were under their influence, could, therefore, raise a violent agitation against British contraband lists, and be confident tha[t] they would be supported by the populace in five great states. Capital and labour in the copper industry would be allies in a policy of resistance to the British government. Moreover, statistics showed, that, if the British fleet should succeed in stopping Germany's supplies of copper, the populations of the western states would feel the stoppage acutely, for Germany's total yearly imports of raw copper amounted to well over 225 thousand tons, of which 197,000 came from the United States. Notwithstanding the risks, the cabinet approved the contraband list that was recommended by the conference, and it was issued by proclamation on 21st September.14

xii) The first political controversy with the American government

The Swedish and Spanish governments at once protested, that magnetic iron ore and haematite should not be declared contraband. Their protests were, however, of far less moment than the news that came in from Washington a week after the proclamation had been published. On 28th September, Sir Cecil Spring-Rice sent two telegrams, warning Sir Edward Grey, that the American administration were preparing a stern protest, not merely against the contraband proclamation, but [47] against the intention to subject cargoes of conditional contraband to the rule of continuous voyage. The state department had, indeed, prepared a note so harsh and provocative, that the president had refused to countersign it. But even though the president was inclined to moderation, Sir Cecil Spring-Rice was satisfied, that American opposition to our policy was likely to be stiff and uncompromising. I fear, he wrote, that the question may prove very serious and gravely affect the relations between the United States and Great Britain. He added, that if the American government openly acquiesced in the last order in council, there would be a violent agitation. This was no exaggeration; and anybody who considers that Sir Edward Grey and Sir Cecil Spring-Rice were needlessly alarmed, should glance through the more important American journals of this date. He will find, that the British order in council, and British intentions with regard to contraband, then engaged the American public's attention at least as much as the military news. Editorial comment upon British policy was, of course, predetermined by the politics of each particular paper and is of no significance. But, inasmuch as newspaper managers only publish what will interest their readers, it is highly significant that, at this date, American newspaper editors gave the same importance and prominence to reports about British maritime policy, as they did to reports about the battle of the Aisne, which had just ended, and to the second German wave of invasion, which was just beginning to move westwards into northern France. Facts like these are illustrative of the nation's temper, and of the forces that might, at any moment, have given an ugly momentum to the controversy.

Sir Cecil Spring-Rice had an interview with Colonel House on 28th September, and, by his representations, secured a concession from the president: That negotiations should not be conducted in Washington, and that the American ambassador in London should be instructed to discuss all questions at issue with Sir Edward Grey. This concession was of very great advantage to us. If the negotiations had been carried on in Washington, Sir Cecil Spring-Rice would have conducted them, not with the president, or the secretary of state, but with Mr. Lansing, the counsellor to the state department; and Sir Cecil had found, that, whenever Mr. Lansing had referred to these questions, his language and manner had been more that of an attorney arguing on behalf of a client, than of a man of affairs who is reviewing the politics of two great nations. It would, moreover, have been impossible to keep the discussions secret. Appreciations that are made at moments of grave anxiety are generally tainted by injustice, and we now know, that Sir Cecil did not judge Mr. Lansing quite fairly. Our authorities were, however, distrustful of him, at the time, and fearful, that in all negotiations entrusted to him, he intended to press legal arguments about the rights of neutrals with the greatest energy and enthusiasm, and with little or no regard to the political consequences. It was, therefore, a relief to us that the matter was entrusted to the American ambassador; for he, though willing to carry out his instructions faithfully, was determined that his government should not damage the cordial relations which then existed between the two nations without warning from him.15

Sir Cecil Spring-Rice's warning telegrams were received five weeks after our order in council had been issued, and, during that five weeks, the American authorities had not suggested that they intended to resist its execution. Sir Edward Grey was, therefore, painfully surprised that the American government should have notified him of their dissatisfaction so suddenly and abruptly. He was, however, convinced, from the outset, that he would have to make considerable concessions, and at once obtained the authority to do so from the cabinet. As the negotiations that followed were undertaken to keep British and American relations easy and friendly (and not merely to adjust a few disputes) it will be proper to introduce them by a preliminary review of the circumstances that were then considered of most moment.

xiii) That the president had already decided to mediate between the powers at war

Although, in his official capacity, the president had issued a proclamation of neutrality in which he urged his fellow countrymen to entertain no partiality for either set of belligerents, Mr. Woodrow Wilson had, nevertheless, allowed Sir Cecil Spring-Rice to know, that his own private sympathies were on the side of the allies; for as soon as Sir Cecil Spring-Rice returned to Washington, the president asked him to send his warmest greetings to Sir Edward Grey and added:16

      Everything that I love most in the world is at stake.... If they succeed we shall be forced to take such measures of defence here as will be fatal to our form of government and to American ideals.17

In view of the immense powers vested in the president by the constitution, it was a matter of the highest importance to us, that his friendship should never be alienated; and it so happened that an issue of great moment was connected with this retention of the president's sympathy. During the first weeks of the war Sir Cecil Spring-Rice had reported that some German agents in Washington had started a manoeuvre for involving the United States government in some kind of mediation between the belligerents. The manoeuvre was supported by the German ambassador, and Mr. Bryan and Colonel House both countenanced it. In the beginning of September, therefore, Sir Edward Grey sent a telegram to Sir Cecil Spring-Rice for communication to the president, in which he warned the American government against the dangers of premature mediation. When the substance of the despatch was communicated to the president, he acknowledged it in friendly, but very guarded, language. This incident seems to have made an impression upon Sir Edward Grey, for, shortly afterwards, he informed Sir F. Bertie that, henceforward, the allies must be prepared for American mediation.18

This is far more important and significant than the facts to which attention is ordinarily drawn, when our relations with America are reviewed. Great Britain's economic dependence upon America was admittedly a circumstance which would influence any British statesman in war. But America's importance as a mediator was greater than her importance as a granary, an oil well, a copper mine, or a munition factory; for it is a commonplace of political history, that a mediating power is drawn into belligerency, if its mediation is unsuccessful. President Wilson was himself well aware of this, and when, later, he prepared what he considered to be a practical plan of mediation, he admitted to his intimate councillors that he must [49] be prepared to support it by arms.19 In these early months of the war, the president's policy was not so definite, but inasmuch as the possibility of his mediation had been realised, the importance of avoiding friction with his government followed naturally.

xiv) Why the conciliation treaty could not be invoked usefully

It may seem strange, that so warm a sympathy as the president had expressed, might have been endangered by an exchange of legal arguments about the continuous transportation of contraband; and, indeed, it is not unnatural to ask why the British government did not decide to stand firmly to its declared policy, and use the Anglo-American conciliation treaty for settling any disputes that might subsequently have arisen. Mr. Bryan had, indeed, suggested that the treaty might be usefully appealed to for this very purpose.20 If the British foreign secretary had been concerned only with the settlement of disputes on contraband, this course might, conceivably, have been followed with advantage. The foreign secretary's task was, however, much more comprehensive and difficult; for it was that of keeping the sympathy and support of the president, and of those sections of American society which shared his views about the justice of the allied cause. A diplomatic machinery for settling disputes does not, in itself, alleviate the frictional effect of controversy; and even though the treaty were appealed to, all disputed questions about the exercise of belligerent rights at sea would necessarily await settlement for a considerable period. Meanwhile, a succession of controversial claims and counter-claims, all raised upon disputed legal doctrines, would inflame American public opinion against us; and it was precisely this which Sir Edward Grey was determined to avoid. Moreover, although our representatives in America were satisfied that American sentiment was on the whole favourable to us, they were also aware that the sentiment was not very stable; Colonel House himself had intimated that a misunderstanding might turn it sharply into another direction.

xv) American legislation in the matter of shipping

It was, moreover, a matter of some concern to our authorities, that, when the American government thus suddenly challenged the legal principles embodied in the last order in council, they were anticipating controversy upon a far more serious question; an issue, indeed, upon which no British government could be anything but firm and unyielding. American legislation with regard to shipping was causing our authorities grave anxiety, as it was evident that the Americans were determined to purchase a large number of the German ships then sheltering in American harbours. One project had already been endorsed and approved by the president; and the manner in which it had been debated and passed showed, that large groups of influential Americans were determined to brook no opposition.21 By the existing American law, no foreign-built ship could be placed on the American registry if she were more than five years old; the law further provided, that ships under the American flag must be officered by American citizens. The bill introduced by Mr. Alexander on 3rd August abolished these restrictions; its purpose was to give American citizens the right to buy any foreign ship, and to send it to sea with foreign officers. The bill was passed very rapidly by the house of representatives, but was more carefully examined in the senate, on 5th and 6th August. Here, Mr. Cummins, Mr. Hitchcock and several others urged, that the law with regard to the purchase of ships from belligerents was doubtful, and that the bill as a whole was laden with political consequences. The opposing view, very strongly expressed by Mr. Shiveley, was, that unless the American merchant service [50] were very rapidly expanded, it was most doubtful whether the produce of the American harvests would be carried to Europe; and that no interference from a foreign power ought to be tolerated. His view prevailed, and a bill substantially the same as that introduced in the lower house on 3rd August was endorsed by the president, five days later. This, however, was only a piece of provisional legislation. The government had themselves introduced a far more comprehensive act: To authorise the President of the United States to acquire, own, operate and maintain an American mercantile marine. This bill had been presented to the lower house on 11th August by Mr. Bryan, but had not been proceeded with for the time being. The intention was, however, to create the nucleus of a state-owned merchant service from purchased German ships.22

The British government could certainly have lodged a strong protest against this purchase of German ships; for, although the law in the declaration of London differed from the law embodied in British prize decisions, neither body of law permitted the shipowners of a power at war to escape the consequences of belligerency by selling their ships to a neutral. The British authorities had, however, lodged no protest, for the time being, largely because Sir Cecil Spring-Rice had warned us, that a formal protest would excite great irritation. But, as it was an essential part of our war plan, that German merchant shipping should be driven from the seas, the British government could not possibly remain indifferent to American legislation, which would virtually reconstitute the enemy's merchant fleet, and restore it to the general traffic between America and Europe. Sir Edward Grey had, therefore, instructed our ambassador to warn the American authorities, that we should never allow these purchased vessels to engage in trade with neutrals adjacent to Germany. As the British authorities were thus anticipating a controversy upon which they could not yield, it was important that they should be as conciliatory as possible on disputes of less importance.

xvi) That American policy about the export of arms was still uncertain

Though less important, the question of munition supply was serious. The position was this. The Bethlehem steel factory had given Lord Kitchener an undertaking that they would sell all the arms and munitions they could manufacture to the British government.23 This general agreement had still to be elaborated by special contracts, but the military authorities were depending upon it for arming a considerable number of the divisions that were to be put into the field in the spring. This [51] agreement was, however, already involved in American politics, for the parts of the American nation that were unfriendly to the allies were showing an unexpected coherence and singleness of purpose, and had succeeded in provoking a general discussion upon the supply of munitions by neutrals to belligerents. A group of senators, of whom the most eminent was Mr. Stone, was known to favour a policy of munition embargo. Pressed by these critics the state department circulated an official paper, which was entirely favourable to the allies.24 In it, the United States government stated that any private citizen had the right to sell contraband to a belligerent. He must, however, recognise that a belligerent on the opposite side had a right to capture it.

      If the enemy of the purchasing nation happens for the time being, to be unable to do this, that is for him one of the misfortunes of war.

Although the state department stated that this paper was declaratory of the law of nations, it was patent that it was as much a declaration of policy as of law. The policy could, moreover, be modified or reversed for reasons of state; and it was a matter of great moment to us that this should not be done. The first German invasion had been checked, but the hopes excited by the battle of the Marne were no longer tenable; and it was then clear that the German armies would not be dislodged from northern France for a considerable time. The British war minister had, indeed, stated publicly that he anticipated a three years' war, possibly an even longer one.

A general survey of Anglo-American relations was, therefore, more a survey of fluctuating, unsteady, influences than of certain fact; but whatever was uncertain, two conclusions were inevitable: The first was, that such American sympathy as we could count upon could, at any moment, be deflected by political forces that had just gathered enough strength to drive the president into a controversy that he disliked. The second was, that if the British government strengthened these adverse influences, by defying or ignoring criticism, and by exasperating the American government with insistent argument in support of a bare legal right, they would be engaging upon a reckless political adventure.

xvii) That the economic war plan was still unaltered, and what was then known about enemy trade

Seeing, therefore, that some concession was necessary, Sir Edward Grey and his advisers had to decide what rights of intercepting trade could be abandoned without damaging British interests. This could only be decided by reviewing the results of the campaign at sea, and what was known of the enemy's trade and supplies. It is not, however, sufficient, at this distance of time, merely to examine the facts as they were then known; for no review of enemy and neutral trade, in the autumn of 1914 can be satisfactory, unless the objects and purposes of British maritime policy are clearly apprehended.

First, and most important, it must be remembered that the British government were not, at this date, committed to what may be called unlimited economic warfare; for, in the autumn of 1914, the economic campaign against the central empires was being waged for the limited purpose described in the war orders to the fleet. The government had not enlarged or augmented these objects since the war began, nor had military or naval advisers urged them to do so. The authorities did not, therefore, contemplate measures for controlling and stopping all the enemy's supplies; indeed, at this time, they did not even contemplate stopping foodstuffs, if they were to be consumed by the civil population of the central empires. The [52] limited objects that the government were then pursuing are enumerated in a telegram which Sir Edward Grey sent to Sir Cecil Spring-Rice, when he opened negotiations with the American ambassador:

      We have only two objects in our proclamations: to restrict supplies for the German army and to restrict the supply to Germany of materials essential for the making of munitions of war. We intend to attain these objects with the minimum of interference with the United States and other neutral countries.

In seeking for a compromise, it was, therefore, necessary for Sir Edward Grey and his advisers to examine how far these objects were being pursued successfully, and to decide whether the enemy were supplying themselves from new sources. What, then, was known for certain about this?

By the middle of October, the committee for restricting the enemies' supplies had presented twenty reports on the shipping movements and flow of supplies into northern Europe. These reports were more descriptive of an immense upheaval than of regular movements of ocean traffic; it was clear, that the outbreak of war, and the withdrawal of the German merchant fleet, had seriously jeopardised the supplies of northern neutrals, who were only just beginning to enjoy a regular delivery of essential cargoes. Each neutral government had, in turn, imposed severe prohibitions against the export of food and fuel; and for some weeks, the Netherlands government had been so alarmed, that they had stopped vessels bound for Germany, notwithstanding that the Rhine convention forbad it. The prohibitions had, however, been varied from day to day, and from week to week, and nothing certain could be concluded about their operation.

The reports presented daily to the committee were, therefore, confusing; nevertheless they already contained indications of two unusual movements of trade. The enemy seemed to be endeavouring to obtain supplies of petroleum through Denmark and of copper through Holland. On 1st October, the committee reported that 48,500 barrels of oil were being carried from New York to Copenhagen. A week later they reported, that during the previous month, seventeen Scandinavian steamers had sailed from America, with 200,000 barrels of gasolene. As the average monthly imports of the three Scandinavian countries were only 40,000 barrels, the committee were convinced that the bulk of these shipments would be re-exported. The petroleum was, moreover, being carried exclusively in barrels, instead of in bulk, which made the presumption of re-export particularly strong. If these facts had stood alone, there would have been a strong case for at once taking drastic measures; but the reports received immediately afterwards showed how difficult it was to form any hard and fast conclusion upon the available data. The committee's agent in Copenhagen at once discussed these import figures with the Danish authorities, who assured him, that all the petroleum cargoes had been consigned to the Danish petroleum company; the Danes proved, moreover, that, at the outbreak of war, there had been a shortage of petroleum in Denmark, which the confusion of the following weeks had accentuated. These explanations, combined with the export prohibition proclaimed by the Danish government, rather modified the opinion previously given by the committee; yet the stark fact remained, that the imports were abnormal, and that further shipments of petroleum were being reported.

An abnormal movement of copper into Holland was equally discernible. At the end of September, the committee reported that 4,170 tons had recently been received in the country; they believed that its average annual importation was about 1,000 tons. Later reports showed that heavy shipments of oil and copper were on their way to Genoa.

As it was still exceedingly difficult to be positive about the final destination of these contraband cargoes, it was more difficult still to decide, whether the Admiralty's plan of exerting economic pressure upon Germany was succeeding or failing. The real test of this was whether Germany was compensating herself for the loss of her merchant [53] service, by establishing a general trade through neutral countries; and statistics with regard to particular commodities like oil and copper gave little or no guidance. It was, however, a question which the committee were striving to determine, and their conclusion, formed upon the mass of reports that they had scrutinised between August and October, was that the volume of supplies that reached the enemy through neutrals was steadily increasing. But whereas it had always been anticipated, that Holland would be the great exchange house of Germany's indirect trade, the committee now thought, that Scandinavian countries, Sweden in particular, would prove to be the principal centres of re-export. Finally, it seemed, for the time being, as though the bulk of this indirect trade would be in foodstuffs.

In addition to the reports of the committee, the Foreign Office had before them a complementary source of information, in the reports of Sir Valentine Chirol. Since the war began, this gentleman had scrutinised the principal German papers, and the technical journals of the great trading and manufacturing associations in Germany, and was preparing monthly reviews of the economic conditions in Germany. Sir Valentine Chirol confirmed what the committee had reported about petroleum, and showed that the authorities were issuing strict regulations about the distribution of supplies. He also showed, that, although the German industries had partially recovered from the shock suffered when war began, the recovery was partial only, in that the loss of the export markets had thrown a large section of the population out of work, and that the magnates of the metal, jute and textile industries were openly anticipating the paralysis of their concerns, when stocks of raw material were exhausted. Finally, Sir Valentine Chirol's observations proved that German supplies of grain were short; for the prices of wheat, barley, rye, malt and flour had all risen, and the federal council were issuing regulations about prices and milling. Sir Valentine Chirol's reports, therefore, showed that the Admiralty's economic war plan had done the enemy considerable damage, and that if it were adhered to without relaxation, it was likely to do more.

xviii) That the indirect trade of Germany had not been checked by the powers conferred in the last order in council

These reports and recommendations were the material upon which the government had to decide what could be conceded to the American government, and upon what points it was necessary that the British authorities should stand firm. As all the available material did not amount to much more than reasonable and well-informed conjecture, it was a matter of some difficulty to decide. If, however, the conjectures of the committee were accepted, the problem stood roughly thus. Germany's indirect trade was increasing, notwithstanding that, by our order in council, we claimed a right to intercept a considerable proportion of it. The rights that we claimed under the doctrine of continuous voyage were questioned by the American government; could we, therefore, waive them, and at the same time, assert and maintain a general right to intercept this indirect traffic by other means? This could only be determined by carefully reviewing the advantages that we had secured by upholding the doctrine of continuous voyage in our proclamation; and although it may be surprising to the large number of persons, who consider that this doctrine was the directing principle of the entire blockade of Germany, it is none the less true, that, in October, 1914, the mere assertion of the principle had been of no advantage to us. On this point the records are conclusive. In the early part of November the cargoes of only three Norwegian and one Dutch vessel had been arrested. These figures represent the total interference with neutral trade; and they show, quite conclusively, that the order in council of 20th August was still no more than the assertion of a legal principle. The authorities were still unable to give effect to the principle, because our agents abroad had not yet collected any of that sufficient evidence upon which particular cargoes could be condemned. Moreover, the report that the German [54] government were controlling foodstuffs - a report which had very much influenced the conference which approved the order in council - was, soon afterwards, proved to be untrue. In view of all this, it is not surprising that the British authorities decided, that our right to apply the doctrine of continuous voyage against cargoes of conditional contraband need not be insisted upon in our negotiations with the American government.

xix) The negotiations with the American government

On 29th September, Sir Edward Grey opened discussions with the American ambassador; and the negotiations that followed are confusing, because the state department did not strictly adhere to the procedure that had been agreed to. As has been explained, it was agreed, that the American ambassador in London should negotiate in chief with the British secretary of state, which meant, that their proposals, and all discussions upon them, should be communicated to Washington, and that the officials of the state department should there examine them, and should then instruct the American ambassador what parts could be agreed to, and what parts ought to be altered. As soon as the negotiations in London were begun, however, the counsellor of the state department presented his own proposals to the British ambassador, with the result that two radically different projects were being examined simultaneously. It will be best to deal with the London negotiations first.

When the new contraband proclamation (in which copper, magnetic iron ore, rubber, and various other metallic substances were declared contraband) was communicated to the American ambassador, Sir Edward Grey explained the ends that the British government were then pursuing. They could not, he said, give any undertaking to observe the declaration of London: when the country was at peace, parliament had refused to ratify it, because they thought it compromised the nation's safety; how, then, could any British government promise to observe it, with a war raging, because a foreign power pressed them to do so? As for the doctrine of continuous voyage, it had been recognised as sound law before the declaration was negotiated, and the British government could not withdraw their recent proclamations upon it. Nevertheless, Sir Edward Grey thought that the British government could come to a settlement with America, by enlarging the lists of absolute contraband, and by applying the doctrine of continuous voyage against absolute contraband only, always provided that everything useful to the enemy's armies was recognized to be so. The discussions between Sir Edward Grey and the American ambassador were continued on 2nd, 3rd and 4th October; and on the last day, a draft order in council was communicated. In it, motor oils, nickel, haematite, ferro chrome, and various other metals, were made absolute, but food, forage, textiles and fuels remained conditional contraband. With regard to this latter, the British government undertook, that the doctrine of continuous voyage should not be applied against it; but that, if we had evidence that a neutral country was becoming a base of enemy supplies, then, we should reserve our rights over the entire trade. Mr. Page kept this project for some days, and after examining it thoroughly, recommended that it should be accepted. He urged this for reasons purely political, in the following language:

      I cannot help fearing we are getting into deep water needlessly. The British government has yielded without question to all our requests and has shown a sincere desire to meet all our wishes short of admitting war material into Germany. That it will not yield. We should not yield it if we were in their place. Neither would the Germans. The English will risk a serious quarrel, or even war with us, rather than yield. This you may regard as final.
      Since the last lists of contraband and conditional contraband were made, such articles as rubber and copper and petroleum have come to play an entirely new part in war. They simply will not admit them. Nothing that can be used for war purposes in Germany now will be used for anything else. Representatives of Spain, Holland, and all the Scandinavian states have conferred with me. They agree they can do nothing but acquiesce and file protests and claims. [55] They admit that England has the right to revise the list. This is not a war in the sense we have hitherto used the word. It is a world-clash of systems of government, a struggle to the extermination of English civilization or of Prussian military autocracy. Precedents have gone to the scrap heap. There is a new measure for military and diplomatic action. Suppose we press for a few shippers' theoretical rights. The American people as a whole gain nothing and the result is friction with Great Britain which is precisely what a very small minority of agitators would like. Great Britain can any day close the Channel to all shipping or can drive Holland to the enemy and blockade her ports.
      Look a little further ahead. If Germany wins, it will make no matter what position Great Britain took on the declaration of London. We shall see the Monroe Doctrine shot through. We shall have to have a great army and a great navy. If England wins, and we have an ugly academic dispute with her because of this controversy, we shall be in a bad position for helping to compose the quarrel or for any other service.
      The present controversy seems here, close to the struggle, academic and of the smallest practical consequence compared with the grave danger we incur of shutting ourselves off from a position to be of some service to civilization and to the peace of the world.
      There is no practical need to consult other neutral governments. If we accept the proposed new order in council all the others will accept it and thank us after the event. Their representatives all come to me for advice and leadership here.
      The question seems wholly different here from what it probably seems in Washington. There it is a more or less academic discussion. Here it is a matter of life and death for English-speaking civilization. It is not a happy time to raise controversies that can be avoided or postponed. Nothing can be gained and every chance for useful co-operation for peace can easily be thrown away and is now in jeopardy. In jeopardy also are our friendly relations with Great Britain in the sorest time of need in her history. I know that this is the correct, larger view. I recommend most earnestly the substantial acceptance of the new order in council or our acquiescence with a reservation of whatever rights we may have: and I recommend prompt information to the British government of such action. I should like so to inform Grey.
      So far as our neutrality obligations are concerned, I do not believe that they require us to demand that Great Britain should adopt for our benefit the declaration of London which has never been ratified by Great Britain or any other nation except the United States and the effect of which in its application to the situation presented by this war is altogether to the advantage of Germany.
      I have delayed to send this perhaps too long for fear I might possibly seem influenced by sympathy with England and by the atmosphere here. But I write of course solely with reference to our own country's interest and its position after the reorganization of Europe. Anderson and Laughlin agree with me emphatically.

While the British order in council was being explained to Mr. Page, and was by him being examined, other projects were presented to the British ambassador in Washington by Mr. Lansing, the counsellor to the state department. The projects examined in London and Washington were different, because the preoccupations of the American ambassador, and of Mr. Lansing, were not the same. To Mr. Page it seemed important, that the British government should not be pressed to do what they could never agree to, that is, promise to observe the declaration of London. Mr. Page knew, without explanation, that insistence on this matter could only provoke an outburst of indignation in England, and it was this that he wished to avoid. For the rest, Mr. Page was convinced, that American trade with northern Europe must be subject to a certain amount of control, and, as the new order in council reduced that control considerably, so, he thought it ought to be accepted. The counsellor of the state department, on the other hand, was exposed to influences from which Mr. Page was free: congress was about to assemble, and, as far as the state department could judge, the political managers in both houses were preparing to raise a great clamour on behalf of the declaration of London, by representing it as a charter of American rights, which no American government ought abandon. It was, therefore, of the last importance to the American ministers, that they should anticipate this attack, by shewing themselves as zealous on behalf of the declaration of London as the senators and congressmen who were seeking to discredit them. It was with these preoccupations in his mind, that Mr. Lansing pressed his proposals upon the British ambassador.

[56] Mr. Lansing's first suggestion was that the British government should adhere to the declaration, and should then gain the freedom they required, by interpreting certain articles in it in the following manner. By the twenty-third and twenty-fifth articles, states adhering to the declaration were empowered to add to the contraband lists, with the limiting condition, that only articles that are exclusively used in war should be declared absolute contraband. Mr. Lansing thought that this awkward condition could be evaded:

      This latter phrase may be open to more than one interpretation, but it is manifest that exclusively cannot be literally interpreted; for example, a literal interpretation would exclude dynamite sticks used in mining from being declared absolute contraband, as they do not seem to fall under the term, explosives specially prepared for use in war. Manifestly, such an exclusion was not intended. My personal view is that in interpreting, exclusively used in war, there must be taken into consideration the methods of warfare, the locality to which the articles are presumably destined, and the situation which exists at the time of the declaration, and notification of the articles added to the absolute contraband list. This seems to me the commonsense view of article 23.

Mr. Lansing therefore suggested, that the British government should undertake to observe the declaration, and should then increase the list of absolute contraband, until it included every article of commerce that they wished to stop; the doctrine of continuous voyage could then be applied against all cargoes on the list; and all this could be called, acts performed under the provisions of the declaration itself.

While Mr. Lansing was explaining his project, the draft of the new order in council was presented to him, and he must have realized, at once, that it would be fruitless to press his suggestion further. Our objections to it were, that in our first order in council, we had interpreted the declaration in a manner entirely different from Mr. Lansing; for, if the declaration gave us the freedom that he imagined, we should not have found it necessary to deal with cargoes of conditional contraband under the older, consuetudinary law. Furthermore, Mr. Lansing evaded what was uppermost in the minds of all British officials: If we did as he suggested, would he subsequently agree, that his own arguments should be used to support a declaration that foodstuffs, forage, textiles and fuel were absolute contraband?

Nevertheless, Mr. Lansing still thought that he could cajole the British authorities into giving the declaration of London a formal recognition; and in order to gain time, either he, or one of his subordinates, raised objections to practically every clause in the new order in council, and instructed Mr. Page to communicate the criticism. The new order did not sufficiently repeal the previous one; and it was probable that cargoes of conditional contraband could be as severely treated under its provisions, as under the order to which objection had been raised.25 In addition, Mr. Lansing professed to be greatly concerned at the clause in which the British government asserted, that if neutral countries became bases of supply for the enemy's forces in the field they should not be protected by the thirty-fifth article. On this point, Mr. Lansing expressed himself with some energy.

      Section 4 of the proposed order introduces a new doctrine into naval warfare, and imposes upon neutral commerce, a restriction which appears without precedent. An analysis of the provisions of this section shews, that, in the discretion of one of his majesty's principal secretaries of state, a neutral country may be clothed with enemy character, and that the legitimate trade of another neutral with such country may be subjected to the rules which are applied to contraband trade with enemy territory...... The effect of this provision would seem to be that a belligerent would gain all the rights over neutral commerce with enemy territory, without declaring war against the neutral country which is claimed to be a base of supply for the military forces of the enemy. It seems inconsistent to declare a nation to be neutral; and, if it does so, other neutral nations can hardly be expected to permit their commerce to be subject to rules which only apply to commerce with a belligerent.

[57] As this criticism was so strongly worded, it is more than strange that, on the very afternoon when it was despatched, and within two hours of it, Mr. Lansing sent away his last appeal on behalf of the declaration of London, and added to it a recommendation that we should do the very thing against which he was protesting so vigorously. This, however, is the case, for at one o'clock in the afternoon of 16th October, Mr. Lansing sent an instruction to Mr. Page, of which the essential part ran thus:26

      Let the British government issue an order in council accepting the declaration of London without change or addition, and repealing all previous orders in council.
      Let this order in council be followed by a proclamation adding articles to the lists of absolute and conditional contraband by virtue of the authority conferred by articles 23 and 25 of the declaration. Let the proclamation be followed by another, of which the United States need not be previously advised, declaring that, when one of his majesty's principal secretaries of state is convinced that a port, or a territory, is being used as a base for the transit of supplies for an enemy government, a proclamation shall issue [sic] declaring that such port or territory has acquired enemy character in so far as trade in contraband is concerned and that vessels trading therewith shall be, thereafter, subject to the rules of the declaration governing trade to the enemy's territory.

As can be imagined, this confused and inconsistent criticism made an ill impression upon the officials of the Foreign Office, to whom it seemed as though the concessions that we were making were not being received as concessions at all, but were merely provoking an exercise in chicanery. The blame for it was laid upon Mr. Lansing; but in this our officials were unjust. It now seems probable that the critical telegram was drafted by an official subordinate to Mr. Lansing, who did not understand what his chief was striving for, and who thought that it would be helpful to attack every line and clause in the British order in council, if it did not specifically recognize the declaration of London. Mr. Lansing, who was very overworked at the time, probably countersigned the telegram without studying it. The second telegram, which contained a constructive proposal, though a very impracticable one, was certainly drafted by Mr. Lansing, for he explained his suggestion to Sir Cecil Spring-Rice on the previous day. From this it can be concluded, that Mr. Lansing did recognise that the British government had a right to control the indirect trade of Germany, and that he was willing to excuse a harsh and arbitrary exercise of belligerent rights, provided always that the British government would recognize the declaration. The worst that can be charged against Mr. Lansing is, therefore, that he adhered rather obstinately to his instructions, and by doing so, aggrieved us needlessly; certain it is that among his faults, cheating and trickery were none.

Although Mr. Lansing advanced some very plausible arguments on behalf of his last recommendation, and even professed himself convinced, that the American government would give liberal consideration to a proclamation that neutral ports might be treated as enemy territory, no responsible official could countenance his proposals; for they would have roused all neutrals against us. It had been decided, that, when the new order was issued, we should at once negotiate with neutral governments for an assurance that they would prohibit the export of imported foodstuffs, textiles and metals. Securing these assurances was, indeed, deemed complementary to the order; and unless our authorities had deemed it probable that the assurances would be given, the order would have contained different provisions. If acted upon, Mr. Lansing's suggestion would have made these negotiations impossible; for it is difficult to believe, that any Dutch or Scandinavian minister would have discussed how imports and exports should be regulated if, at any moment, a British representative might have announced, on the strength of such evidence as was to be found in a few sheets of statistics, that Rotterdam, Copenhagen or Göteborg would, thenceforward, be treated as an enemy harbour.

[58] It was, however, thought best not to state our objections to this last proposal, as it was feared, that, by discussing it at all, we should provoke an even worse one. The outcome was, therefore, that Sir Edward Grey brushed all details and counterproposals aside, and informed Mr. Page and Mr. Chandler Anderson, that the British government could not concede more than was yielded in the new order, and that they would publish it. Sir Edward repeated what he had previously said about the declaration of London, and suggested that the American government should neither acquiesce in the new order nor protest against it, and should merely wait to see whether it injured American rights. If it were found to do so, the American government would be free to act as circumstances required. Mr. Page and Mr. Chandler Anderson urged that this should be agreed to as an emergency arrangement, and, on receiving their reports upon the matter, Mr. Lansing at last abandoned the position that he had so faithfully defended, our ambassador was informed: That the United States government could not formally endorse a British order in council; but that the American administration would thenceforward regard the declaration of London as:

of no effect, and would treat each question, as it arose, on the principles of international law as maintained in the United States, especially in their relations with Great Britain.27

xx) The order in council of 29th October, 1914

The order in council was published on 29th October. It was declared to be abrogatory of the previous order, and Sir Edward Grey's decision, that the doctrine of continuous voyage should no longer be applied against cargoes of conditional contraband, was embodied in a clause which ran:

      Notwithstanding the provisions of article 35 of the said declaration, conditional contraband shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned to order, or if the ships papers do not show who is the consignee of the goods, or if they show a consignee of the goods in territory belonging to or occupied by the enemy.28
      The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.

The safeguard against allowing contraband to pour into Germany through neutral territory was incorporated in the second clause of the order:

      Where it is shown to the satisfaction of one of His Majesty's principal secretaries of state that the enemy government is drawing supplies for its armed forces from or through a neutral country, he may direct that, in respect of ships bound for a port in that country article 35 of the said declaration shall not apply. Such direction shall be notified in the London Gazette and shall operate until the same is withdrawn. So long as such direction is in force, a vessel which is carrying conditional contraband to a port in that country shall not be immune from capture.

The contraband lists recommended by the interdepartmental conference were published without alteration in a separate proclamation.29

By many persons this order in council was considered to be an abrogation of our legal rights, made without consultation with the naval authorities, and for no sufficient reason. Mr. Arnold Forster was probably expressing a view widely held, when he stated that the order:

      Had an injurious effect upon the exercise of our sea power...... thousands of tons of food, which were believed to be destined for the enemy authorities had to be allowed to pass through the blockade unmolested.

This criticism deserves to be examined.

[59] If, by the autumn of 1914, the British government had enlarged the plan of economic warfare that was embodied in the war orders to the fleet, and had determined to stop food and articles of general trade consigned to Germany, then, it might be said that the October order restricted and curtailed our plans of economic warfare. But it has been shown that, in the autumn of 1914, the Admiralty's plan was unaltered; and that it consisted solely in the interception of contraband. The October order can, therefore, only be regarded as a retrograde movement, if it made the interception of contraband more difficult. Can it be said to have done so? Hardly, for several reasons. First, cargoes of conditional contraband had not been condemned by the law of continuous voyage, because we still lacked the evidence necessary for making the law effective; nor did such information as we possessed about the neutral consignees of foodstuffs suggest, that we should ever be able to penetrate the thick curtain of disguise, which still sheltered the transactions of Germany's transit trade. Secondly, Sir Edward Grey's telegrams to Sir Cecil Spring-Rice show, that in the autumn of 1914, the British government still intended to distinguish between foodstuffs supplied to the armed forces of Germany, and foodstuffs for the civil population. We were still without any means of making the distinction; and it would have been quite impracticable to attempt to stop all foodstuffs, merely because we could not distinguish between military and civil recipients. Indeed, American apprehensions about our treatment of food cargoes had given as much force to their protests as their apprehensions about copper and cotton; for, at the outset of the controversy, Sir Cecil Spring-Rice had advised the Foreign Office, that unless foodstuffs were liberally treated, there would be little chance of agreement. Such concessions as we made were, therefore, concessions on a rule of war, from which we had then extracted no advantage. If the critics of the order can show that enormous quantities of foodstuffs passed through the blockade, after the order in council was issued, they ought, in justice, to add that those foodstuffs would in all probability have gone free, if the old order had remained in force. And, as a set off or counterpoise, to the concessions, the British authorities were thenceforward free to apply the doctrine of continuous voyage against cargoes of the enlarged list of absolute contraband, a list which now included copper, special ores, motor spirit and rubber.

It is never fair to attribute views to persons, if they have not explicitly expressed them, but it is possibly not disregarding the restraints that must be imposed upon legitimate argument to say, that there has been a great deal of misapprehension about the blockade of Germany, because its tentative beginnings are forgotten. The operation became so embracing, and was so successfully executed, that any cautious step during the preliminary manoeuvres is remembered as a setback, or an obstacle, to the final plan. If it had been possible to wage unlimited economic warfare against Germany in the autumn of 1914, then, certainly, the order in council of 29th October would have been a calamity. As, however, it was then impossible to enlarge our plan of economic warfare, and as no extension of it was seriously suggested from any quarter, the order in council must be examined in the light of the circumstances which then obtained. Nor must it be forgotten that it secured to us two advantages. First, it gave us great additional freedom, for the Americans agreed that they would, thenceforward, consider that the declaration of London was of no effect. Secondly, which is more important, the order established the principle of relying upon political negotiations with neutrals, rather than upon legal doctrines, for stopping contraband cargoes destined for the enemy.

1For the recommendations of Lord Desart's committee, see Chapter VI. ...back...

2Cruiser force G. ...back...

3Cruiser force B. ...back...

4This powerful committee - the great executive organ of the blockade - was constituted by a cabinet order issued in November. It then sat continuously at the Foreign Office and kept a daily printed record of decisions and orders. Its constitution was: a representative from the Foreign Office, the Board of Trade and the Admiralty; and a representative from the procurator general's department who attended as a consultant only. Additional members from the restriction of enemy supplies committee or the war trade advisory committee were appointed later. The chairmen were always lawyers of high position in the courts of common law; no international lawyer was ever appointed to the committee as a permanent member. The reason for this arrangement was that the committee was regarded as an executive organ - not as a tribunal - and that a chairman with an ordinary legal training was thought to be the most proper person for summing up and deciding when the members of the committee were not unanimously agreed. ...back...

5The legal position was that Germany signed convention no. 8 of the second Hague conference; but reserved article 2 of the convention, which ran: It is forbidden to lay automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation. The German delegate's remarks, when this article was discussed, left most naval officers convinced that mining commercial harbours was part of the German war plan, and that the German naval staff intended to adhere to it. Some lawyers appreciated the German delegate's reservations in the same way; for Professor Westlake (Int. Law, Part II, p. 316), after quoting baron Marshal von Bieberstein's speech at length added, Thus Germany claims the right to destroy neutral shipping and fishermen if absolutely necessary, in order that she may win in a war. This was certainly the opinion held at the naval staff college during the years before the war. ...back...

6The reasons why the United States government decided to manoeuvre on behalf of the declaration of London are explained in Ray Stannard Baker's Woodrow Wilson, life and letters, Vol. 5, pp. 194 et seq. See, also: Foreign Relations of the United States, 1914 Supplement, pp. 225 et seq. ...back...

7Mr. Hurst was legal adviser to the Foreign Office. ...back...

8Sir E. Grey (Chairman); Lord Haldane, Mr. McKenna, Mr. Churchill, Mr. Runciman, Sir J. Simon; Admiral Prince Louis of Battenberg; Admiral Sir F. C. D. Sturdee; Admiral Sir Edmond Slade; Sir Graham Greene, Mr. Hurst. ...back...

9See Appendix I. ...back...

10For British law see: Rebeccah 2, Acton, p. 119. For the law of the declaration, see Chapter III, Unneutral Service. For Judgements on supply ships, see Thor and Lorenzo. I B & C.P.C., p. 226, et seq. ...back...

11Sir Francis Hopwood was the chairman. The constitution of the committee varied; but Admiral Slade, Mr. Hurst, Mr. Chiozza Money, Captain Longden and Mr. Longhurst (Committee of Imperial Defence) attended all meetings; and representatives from the Board of Trade and the Foreign Office were always present. ...back...

12The total imported supply was 3,315 tons. From America 2,157 tons; Belgium 529 tons; Great Britain 414 tons. (Statistisches Jahrbuch für das Deutsche Reich.) ...back...

13See Wild. Copper Mines of the World. ...back...

14See Appendix II. ...back...

15See his letter to Colonel House. Life and Letters, Vol. I, chapter XII, pp. 380, 381. ...back...

16Sir Cecil Spring-Rice was on leave in England when war began. ...back...

17This is a hazardous statement because it differs from the appreciations of Mr. Ray Stannard Baker, President Wilson's biographer and the most laborious of men. (See Life of President Wilson, Vol. V, chapters III and IV passim.) Mr. Baker maintains, and produces documents to prove it, that President Wilson's heart and mind were as neutral as his neutrality proclamations. I leave my own statement unaltered, however, because Mr. Baker did not see the document that justifies it; and also because Mr. Baker is a hero worshipper (the best quality in a biographer), who is anxious to prove that President Wilson was endowed with the qualities that Mr. Baker regards as most praiseworthy in an American statesman. ...back...

18The American side of this attempt to mediate is set out fairly well in Foreign Relations of the United States, 1914 Supplement, pp. 91 et seq. and in Baker, op. cit., Vol. 5, chapter VI passim. The manoeuvre was conceived by Mr. Bryan, who gave it such impetus as is to be derived from public prayer meetings for peace, etc. The United States government had no intention, at this date, of declaring against the side that refused mediation; but Sir Edward Grey was right in anticipating danger. When Mr. Bryan's move came to nothing, he at once used the setback as a stimulus to the agitation then beginning, That the export of arms and munitions be prohibited. Mr. Bryan was one of the greatest masters of political manoeuvre who has ever lived, and everything that originated from him contained elements of danger as he considered it to be to his electoral interest to promote the "six of one and half a dozen of the other" theory, by every artifice that he could operate. See Sir Cecil Spring-Rice's letters of the pre-war period for instances of Mr. Bryan's ingenuity. (Letters and friendships of Sir C. Spring-Rice.) ...back...

19See: Intimate Papers of Colonel House, Vol. II, chapters IV, V and VII. ...back...

20Signed by Sir Cecil Spring-Rice on 18th September, 1914. ...back...

21Approved and signed 20th August. See Congressional Record, 22nd August, 1914. ...back...

22The law of the course of admiralty is embodied in the decisions on: the Sechs Geschwestern, Christopher Robinson, IV, p. 100: the Jemmy, ibid., IV, 31; the Minerva, ibid., VI, p. 396, and the Odin, ibid., I, p. 248. The British courts maintained that property transferred by a belligerent to a neutral must be bona fide and absolutely transferred, and that there must be a sale divesting the enemy of all further interest in it. This "further interest" to which Lord Stowell referred was apparently a subsidiary secret agreement between the neutral purchaser and the belligerent seller, that the original owner should continue to administer the vessel. Americans purchasing German ships were not likely to make any agreement limiting their ownership of the vessels; but the established principle of law that the enemy should be divested of all interest in the vessels would certainly have been violated if those vessels had been used to carry supplies to Germany through neutral countries.
      The law of the declaration of London ran thus:
      The transfer of an enemy vessel to a neutral flag, effected after the outbreak of hostilities is void unless it is proved that such transfer was not made in order to evade the consequences to which an enemy, as such, is exposed. There is, however, an absolute presumption that a transfer is void:
      (i) if the transfer has been made during a voyage or in a blockaded port,
     (ii) if a right to repurchase or recover the vessel is reserved to the vendor,
    (iii) if the requirements of the municipal law, governing the right to fly the flag under which the vessel is sailing have not been fulfilled. ...back...

23General Edmonds: Official History of Military Operations. Vol. II, pp. 11-17; 25. ...back...

24See Senate Record of 14th October. ...back...

25In this, the lawyers of the state department shewed sound knowledge; for the judicial committee of the privy council held the same thing later. See Hull's Digest of cases decided in the British Prize Courts. Section VI, 3. ...back...

26The telegram criticising the order in council, and protesting against the last clause in it was despatched at 3.0 p.m. ...back...

27For the American state papers upon the negotiations, see: Policy of the United States towards maritime commerce in war. Vol. II, pp. 4 et seq. Carleton Savage. (State Department publication.) ...back...

28Article 35. Conditional contraband is not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy, and when it is not to be discharged at an intervening neutral port. ...back...

29See Appendix I. ...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).