claimant in cases where the goods are consigned "to order or the consignee is not named, or the consignee is within enemy territory. Without admitting that the onus probandi can rightfully be made to rest upon the claimant in these cases, it is sufficient for the purpose of this note to point out that the three classes of cases indicated in the Order in Council of the 29th October apply to only a few of the many seizures or detentions which have actually been made by British authorities.

II. The British contention that in the American Civil War the captor was allowed to establish enemy destination by "all the evidence at his disposal," citing the Bermuda case (3 Wallace 515), is not borne out by the facts of that case. The case of the Bermuda was one of "further proof," a proceeding not to determine whether the vessel should be detained and placed in a Prize Court, but whether the vessel, having been placed in Prize Court, should be restored or condemned. The same ruling was made in the case of the Sir William Peel (z Wallace 517). These cases, therefore, cannot be properly cited as supporting the course of a British captor in taking a vessel into port there to obtain extrinsic evidence to justify him in detaining the vessel for prize proceedings.

12. The further contention, that the greatly increased imports of neutral countries, adjoining Great Britain's enemies raise a presumption that certain commodities, such as cotton, rubber, and others more or less useful for military purposes, though destined for those countries, are intended for re-exportation to the belligerents who cannot import them directly, and that this fact justifies the detention for the purpose of examination of all vessels bound for the ports of those neutral countries, notwithstanding the fact that most of the articles of trade have been placed on the embargo lists of those countries, cannot be accepted as laying down a just or legal rule of evidence. Such a presumption is too remote from the facts, and offers too great opportunity for abuse by the belligerent, who could, if the rule were adopted, entirely ignore neutral rights on the high seas and prey with impunity upon neutral commerce. To such a rule of legal presumption my Government cannot accede, as it is opposed to those fundamental principles of justice which are the foundation of the jurisprudence of the United States and Great Britain.

13. Before passing from the discussion of this contention. as to the presumption raised by increased importations to neutral countries, my Government desires to direct attention to the fact that His Majesty's Government admit that the British exports to those countries have also materially increased since the present war began. Thus Great Britain concededly shares in creating a condition which is relied upon as a sufficient ground to justify the interception of American goods destined to neutral European ports. If British exports to those ports should be

still further increased, it is obvious that, under the rule of evidence contended for by the British Government, the presumption of enemy destination could be applied to a greater number of American cargoes, and American trade would suffer to the extent that British trade benefited by the increase. Great Britain cannot expect the United States to submit to such manifest injustice or to permit the rights of its citizens to be so seriously impaired.

14. When goods are clearly intended to become incorporated in the mass of mechandise for sale in a neutral country it is an unwarranted and inquisitorial proceeding to detain shipments for examination as to whether those goods are ultimately destined for the enemy's country or use. Whatever may be the con. jectural conclusions to be drawn from trade statistics, which, when stated by value, are of uncertain evidence as to quantity, the United States maintains the right to sell goods into the general stock of a neutral country, and denounces as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground that it suspects that the previous supply of such goods in the neutral country, which the imports renew or replace, has been sold to an enemy. That is a matter with which the neutral vendor has no concern, and which can in no way affect his rights of trade. Moreover, even if goods listed as conditional contraband are destined to an enemy country through a neutral country, that fact is not in itself sufficient to justify their seizure.

15. In view of these considerations, the United States, reiterating its position in this matter, has no other course but to contest seizures of vessels at sea upon conjectural suspicion and the practice of bringing them into port for the purpose, by search or otherwise, of obtaining evidence, for the purpose of justifying prize proceedings, of the carriage of contraband or of breaches of the Order in Council of the 11th March. Relying upon the regard of His Majesty's Government for the principles of justice so frequently and uniformly manifested prior to the present war, the Government of the United States anticipates the British Government will instruct their officers to refrain from these vexatious and illegal practices.

16. Second: The Government of the United States further desires to direct particular attention to the so-called "blockade measures imposed by the Order in Council of the 11th March. The British note of the 23rd July, 1915, appears to confirm the intention indicated in the note of the 15th March, 1915, to establish a blockade so extensive as to prohibit trade with Germany or Austria-Hungary, even through the ports of neutral countries adjacent to them. Great Britain, however, admits that it should not, and gives assurances that it will not, interfere with trade with the countries contiguous to the territories of the enemies of Great Britain. Nevertheless, after over six months'

application of the "blockade" order, the experience of American citizens has convinced the Government of the United States that Great Britain has been unsuccessful in her efforts to distinguish between enemy and neutral trade. Arrangements have been made to create in these neutral countries special consignees or consignment corporations, with power to refuse shipments, and to determine when the state of the country's resources requires the importation of new commodities. American commercial interests are hampered by the intricacies of these arrangements, and many American citizens justly com plain that their bonâ fide trade with neutral countries is greatly reduced as a consequence, while others assert that their neutral trade, which amounted annually to a large sum, has been entirely interrupted.

17. It makes this practice even more harassing to neutral traders that the British authorities require a consignor to prove that his shipments are not bound to an enemy of Great Britain, even when the articles are on the embargo list of the neutral country to which they are destined, and that notwithstanding the assertion in the last British note that interference with such trade by a belligerent can only take place "provided of course that he (the belligerent) can establish" that the commerce is with the enemy.

18. While the United States Government was at first inclined to view with leniency the British measures which were termed in the correspondence, but not in the Order in Council of the 11th March, a "blockade," because of the assurances of the British Government that inconvenience to neutral trade would be minimised by the discretion left to the Courts in the application of the Order in Council, and by the instructions which it was said would be issued to the administrative and other authorities having to do with the execution of the so-called "blockade" measures, the Government of the United States is now forced to the realisation that its expectations, which were fully set forth in its note of the 30th March, were based on a misconception of the intentions of the British Government. Desiring to avoid controversy, and in the expectation that the administration of the Order in Council would conform to the established rules of international law, the Government of the United States has until now reserved the question of the actual validity of the Order in Council of the 11th March, in so far as it is considered by the Government of Great Britain to establish a blockade within the meaning of that term as understood in the law and the practice of nations; but in the circumstances now developed it feels that it can no longer permit the validity of the alleged blockade to remain unchallenged.

19. The Declaration of Paris in 1856, which has been universally recognised as correctly stating the rule of inter

* Vol. XLVI, page 26.

national law as to blockade, expressly declares that "blockades, in order to be binding, must be effective, that is to say, maintained by force sufficient really to prevent access to the coast of the enemy." The effectiveness of a blockade is manifestly a question of fact. It is common knowledge that the German coasts are open to trade with the Scandinavian countries and that German naval vessels cruise both in the North Sea and the Baltic and seize and bring into German ports neutral vessels bound for Scandinavian and Danish ports. Furthermore, from the recent placing of cotton on the British list of contraband of war it appears that His Majesty's Government have themselves been forced to the conclusion that the blockade is ineffective to prevent shipments of cotton from reaching their enemies, or else that they are doubtful as to the legality of the form of blockade which they have sought to maintain.

20. Moreover, it is an essential principle which has been universally accepted that a blockade must apply impartially to the ships of all nations. This was set forth in the Declaration of London,* is found in the Prize Courts of Germany, France, and Japan, and has long been admitted as a basic principle of the law of blockade. This principle, however, is not applied in the present British "blockade," for, as above indicated, German ports are notoriously open to traffic with the ports of Denmark, Norway, and Sweden. So strictly has this principle been enforced in the past that, in the Crimean War the Judicial Committee of the Privy Council on appeal laid down that, if belligerents themselves trade with blockaded ports they cannot be regarded as effectively blockaded. (The "Franciska," Moore P.C. 56.) This decision has special significance at the present time, since it is a matter of common knowledge that Great Britain exports and re-exports large quantities of merchandise to Norway, Sweden, Denmark, and Holland, whose ports, so far as American commerce is concerned, she regards as blockaded. In fact, the British note of the 13th August itself indicates that the British exports of many articles, such as cotton, lubricating oil, tobacco, cocoa, coffee, rice, wheat flour, barley, spice, tea, copra, &c., to these countries have greatly exceeded the British exports of the same articles for the corresponding period of 1914. The note also shows that there has been an important British trade with these countries in many other articles, such as machinery, beef, butter, cotton waste, &c.

21. Finally, there is no better settled principle of the law of nations than that which forbids the blockade of neutral ports in time of war. The Declaration of London, though not regarded as binding upon the signatories, because not ratified by them, has been expressly adopted by the British Government without modification as to blockade in the British Order in Council of the 29th October, 1914. Article 18 of the Declaration declares

* Vol. CIV, page 239.

specifically that: "The blockading forces must not bar access to neutral ports or coasts." This is, in the opinion of this Government, a correct statement of the universally accepted law as it exists to-day, and as it existed prior to the Declaration of London. The meaning of this statement is elucidated by M. Renault in the report of the Drafting Committee upon the convention, in which he states:

"This rule has been thought necessary the better to protect the commercial interests of neutral countries; it completes article 1, according to which a blockade must not extend beyond the ports and coasts of the enemy, which implies that, as it is an operation of war, it must not be directed against a neutral port, in spite of the importance to a belligerent of the part played by that port in supplying his adversary.

As the Conference assembled at London upon the invitation of the British Government, it is important to recall your own instruction to the British delegates, "setting out the views of His Majesy's Government founded on the decisions of the British Courts," in which you say :

"A blockade must be confined to the ports and coast of the enemy, but it may be instituted of one port or of several ports or of the whole of the sea-board of the enemy. It may be instituted to prevent the ingress only or egress only, or both." You added:

"Where the ship does not intend to proceed to the blockaded port, the fact that goods on board are to be sent on by sea or by inland transport is no ground for condemnation."

In support of this announcement you referred to several decisions of British Prize Courts, among which an early one of 1801 held that goods shipped from London to Emden, thence inland or by canal to Amsterdam, then blockaded by sea, were not subject to condemnation for breach of blockade. ("Jonge Pieter," 4 C.R. 79.) This has been the rule for a century, so that it is scarcely necessary to recall that the Matamoras cases, well known to the British Government, support the same rule, that neutral ports may not be blockaded, though “trade with unrestricted inland commerce between such a port and the enemy's territory impairs undoubtedly, and very seriously impairs, the value of a blockade of the enemy's coast."

22. Without mentioning the other customary elements of a regularly imposed blockade, such as notification of the particular coast-line invested, the imposition of the penalty of confiscation, &c., which are lacking in the present British "blockade" policy, it need only be pointed out that, measured by the three universally conceded tests above set forth, the present British measures cannot be regarded as constituting a blockade in law, in practice, or in effect.

23. It is incumbent upon the United States Government, therefore, to give his Britannic Majesty's Government notice that