passes to and from Germany across the land frontiers of adjacent States, but this fact does not render the measures which France and Great Britain are taking against German trade the less justifiable. Even if these measures were judged with strict reference to the rules applicable to blockades, a standard by which, in their view, the measures of the Allies ought not to be judged, it must be remembered that the passage of commerce to a blockaded area across a land frontier or across an inland sea has never been held to interfere with the effectiveness of the blockade. If the right to intercept commerce on its way to or from a belligerent country, even though it may enter that country through a neutral port, be granted, it is difficult to see why the interposition of a few miles of sea as well should make any difference. If the doctrine of continuous voyage may rightly be applied to goods going to Germany through Rotterdam, on what ground can it be contended that it is not equally applicable to goods with a similar destination passing through some Swedish port and across the Baltic or even through neutral waters only? In any case, it must be remembered that the number of ships reaching a blockaded area is not the only test as to whether it is maintained effectively. The best proof of the thoroughness of a blockade is to be found in its results. This is the test which Mr. Seward in 1863, when Secretary of State, maintained should be applied to the blockade of the Confederate States. Writing to Mr. Dayton, the United States Minister in Paris, on the 8th March, he said: "But the true test of the efficiency of the blockade will be found in its results. Cotton commands a price in Manchester, and in Rouen and Lowell four times greater than in New Orleans. Judged by this test of results, I am satisfied that there never was a more effective blockade." Similar language was used in a despatch to Mr. Adams in London. The great rise in price in Germany of many articles, most necessary to the enemy in the prosecution of the present war, must be well known to the United States Government.

36. Attention is drawn in the same paragraph to the fact that cotton has since the measures announced on the 11th March been declared to be contraband, and this is quoted as an admission that the blockade is ineffective to prevent shipments of cotton from reaching the enemy countries. The reason for which cotton was declared to be contraband is quite simple. Goods with an enemy destination are not, under the Order in Council, subject to condemnation; they are restored to the owner. Evidence accumulated that it was only for military purposes that cotton was being employed in Germany. cotton was laid under embargo, and its use in the textile factories was prohibited except in very special cases or by military permission. In these circumstances it was right and proper that cotton with an enemy destination should be subjected to condemnation and not merely prevented from passing, and it [1916. cx.] 2 X

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was for this reason that it was declared to be contraband. The amount of cotton reaching the enemy country has probably not been affected in the least by its being made contraband on the 20th August, as supplies from overseas had been cut off effectually before that date. Even the "Konfektionär, German technical paper dealing with the textile industry, admitted in its issue of the 1st July that not a gramme of cotton had found its way into Germany for the preceding four weeks.

37. Before leaving the question of the validity of the measures which France and Great Britain have taken against enemy commerce, reference must be made to the statement made in the 33rd paragraph of the United States note that "the curtailment of neutral rights by these measures, which are admittedly retaliatory, and therefore illegal

cannot

be admitted." His Majesty's Government are quite unable to admit the principle that to the extent that these measures are retaliatory they are illegal. It is true that these measures were occasioned and necessitated by the illegal and unjustifiable proclamation issued by the German Government on the 4th February, 1915,* constituting the waters surrounding Great Britain, including the whole English Channel, a "war zone," into which neutral vessels would penetrate at their peril, and in which they were liable to be sunk at sight. This proclamation was accompanied by a memorandum alleging that the violation of international law by Great Britain justified the retaliatory measures of the German Government owing to the acquiescence of neutrals in the action of this country. The legitimacy of the use of retaliatory measures was thus admitted by the Germans, although His Majesty's Government and their Allies strongly deny the facts upon which their arguments were based. But although these measures may have been provoked by the illegal conduct of the enemy, they do not, in reality, conflict with any general principle of international law, of humanity, or civilisation; they are enforced with consideration against neutral countries, and are therefore juridically sound and valid.

38. The more abstract question of the legitimacy of measures of retaliation adopted by one belligerent against his opponent, but affecting neutrals also, is one of which His Majesty's Government think the discussion might well be deferred. It is a subject of considerable difficulty and complexity, but His Majesty's Government are surprised to notice that the Government of the United States seem to regard all such measures of retaliation in war as illegal if they should incidentally inflict injury upon neutrals. The advantage which any such principle would give to the determined law-breaker would be so great that His Majesty's Government cannot conceive that it would com

* See page 1031.

mend itself to the conscience of mankind. To take a simple instance, suppose that one belligerent scatters mines on the trade routes so as to impede or destroy the commerce of his enemy—an action which is illegitimate and calculated to inflict injury upon neutrals as well as upon the other belligerent-what is that belligerent to do? Is he precluded from meeting in any way this lawless attack upon him by his enemy? His Majesty's Government cannot think that he is not entitled by way of retaliation to scatter mines in his turn, even though in so doing he also interferes with neutral rights. Or take an even more extreme case, suppose that a neutral failed to prevent his territory being made use of by one of the belligerents for warlike purposes, could he object to the other belligerent acting in the same way? It would seem that the true view must be that each belligerent is entitled to insist on being allowed to meet his enemy on terms of equal liberty of action. If one of them

is allowed to make an attack upon the other regardless of neutral rights, his opponent must be allowed similar latitude in prosecuting the struggle, nor should he in that case be limited to the adoption of measures precisely identical with those of his opponent.

39. The third section of the United States note deals with the question of the means of redress which are open to United States citizens for any injury or loss which they suffer as the consequence of an unjustifiable exercise of the belligerent rights of the Allies. The contention put forward in these paragraphs appears to be that there is no obligation on neutral individuals who maintain that they have been damnified by the naval operations of the belligerents to appeal to the Prize Courts for redress, because the Prize Courts are fettered by municipal enactments which are binding upon them, whereas the very question which those individuals wish to raise is the validity of such enactments when tested by the canons of international law.

40. These arguments seem to be founded on a misunderstanding of the situation, and to overlook all that was said in Sir E. Grey's note of the 23rd July on this subject. The extract there quoted from the decisions given by Lord Stowell shows that in Great Britain the Prize Court has jurisdiction to pronounce a decision on the very point which the United States note indicates, viz., whether an order or instruction to the naval forces issued by His Majesty's Government is inconsistent with those principles of international law which the Court is bound to apply in deciding cases between captors and claimants, and is entitled, if satisfied that the order is not consistent with those principles, to decline to enforce it. The jurisdiction of the Prize Court in Great Britain therefore affords every facility to a United States citizen, whose goods are detained and dealt with under the Order in Council of the 11th March, to take hi case to the Prize Court and there claim that the Order under

which the naval authorities have acted is invalid, and that its enforcement entitles him to redress and compensation.

41. In some matters, it is true that the Prize Court is bound by the municipal enactments of its own country. It is the territorial sovereign who sets up the Court, and who therefore determines the matters which are incidental to its establishment. His Majesty's Government have already pointed out that each country determines for itself the procedure which its Prize Courts shall adopt; but certainly under the British system -and His Majesty's Government were under the impression that, in this matter, the United States had taken the same course the substantive law which the Court applies as between captor and claimant consists of the rules and principles of international law, and not the municipal legislation of the country. If reference is made to the case of the Recovery (6 C. Rob. 341), it will be seen that Lord Stowell refused to enforce in the Prize Court against a neutral the British Navigation Laws.

42. Sir E. Grey's note of the 23rd July was intended to make this point clear, and so far from having intended to "give the impression that His Majesty's Government do not rely upon its soundness or strength," His Majesty's Government wish to lay stress on the fact that the principle that no encroachment should be made upon the jurisdiction and the competence of the Prize Court is one which they regard as vital.

43. Apart from the cases where a question may arise as to the validity of orders or instructions on which naval action was based, circumstances frequently give rise to claims for compensation on behalf of individuals who consider they have suffered unjustly from the exercise of rights jure belli, as, for instance, from the delay in releasing their ships or so forth. His Majesty's Government declare therefore, to repeat what was said in Sir E. Grey's note of the 10th February, that the British Prize Court Rules give the court ample jurisdiction to deal with any claims for compensation by a neutral arising from the interference with a ship or goods by the naval forces.

44. His Majesty's Government attach the utmost importance to the maintenance of the rule that, when an effective mode of redress is open to individuals in the courts of a civilised country by which they can obtain adequate satisfaction for any invasion of their rights, recourse must be had to the mode of redress so provided before there is any scope for diplomatic action. This is the course which His Majesty's Government have always themselves endeavoured to follow in previous wars in which Great Britain has been neutral, and they have done so because it is the only principle which is correct in theory and which operates with justice and impartiality between the more powerful and the weaker nations. To that principle His Majesty's Government propose to adhere now that they are themselves the

belligerent, and that it is against them that the claims are advanced.

45. Enquiry has been made into the four cases of the Magicienne, the Don José, the Labuan, and the Saxon, mentioned in the United States note (paragraph 27) as instances during the American Civil War where His Majesty's Government put forward, through the diplomatic channel, claims for damages for seizure and detention of British ships alleged to have been made without legal justification. In two of these instances it is said that at the time the demands were made the cases were before the American Prize Courts for adjudication. The results of the enquiry are contained in an appendix to this note. The cases have there been dealt with in some detail because they are cited as indicating that it was the practice of Her Majesty's Government during the American Civil War to claim through the diplomatic channel damages for seizures of British ships alleged to have been made without legal justification. The cases do, in fact, establish the very proposition for which His Majesty's Government are now contending, viz., that in cases where the Prize Court has power to grant relief there is no ground for putting forward claims through the diplomatic channel. In two of the cases the United States Government themselves discontinued the Prize Court proceedings and admitted the right to compensation, and in the others they maintained the jurisdiction of the Prize Court, and Her Majesty's Government acquiesced.

46. The statements contained in paragraph 31 of the United States note have led to a careful review of the practice which is now followed in the British Courts with regard to vessels and cargoes which are released. It has been ascertained that in the case of vessels brought in for examination and allowed to proceed without discharging any part of their cargo no dues are charged. Where part of the cargo is discharged and passes into the jurisdiction of the Prize Court, the terms of the release are, of course, subject to the control of the Court, and His Majesty's Government are therefore hardly in a position to give any definite undertaking with regard to the incidence of the expenses and charges which may have been incurred. In general, however, they realise that, in cases where goods are released and it transpires that there were no sufficient grounds for their seizure, no dues or charges should fall upon the owner. The statement that waivers of the right to put forward claims for compensation are exacted as a condition of release is scarcely accurate, but they are prepared to concede that such waivers would be a hardship to the owners of the goods released. In these circumstances His Majesty's Government will abstain from exacting any such undertakings in future, and will not enforce those which have already been given.