The "certain modifications and additions" alluded to had the result of abrogating some of the most important and fundamental articles of the Declaration. The Order in Council of August 20, 1914, relative to the Declaration of London, announced these modifications, which left the Declaration little more than its name after the British Government had worked its will upon it.

The Allied Governments hastened to accept the London Declaration as emasculated by the British Orders. The articles of the Declaration excepted or modified included some of the concessions on contraband, that had constituted the quid pro quo for other articles, which either incorporated the traditional British doctrines or made certain desired innovations, such, for example, as the articles in regard to the transfer of ships, which extended belligerent rights beyond what Great Britain's own doctrines had ever authorized.1

It soon became apparent to the American Government that its neutral interests were disastrously affected by this one-sided application of the Declaration, the very purpose of which had been the protection of neutral commerce.

October 22 the Department of State instructed Ambassador Page to inform the British Government that under the "circumstances the Government of the United States feels obliged to withdraw its suggestion, that the Declaration of London be adopted as a temporary code of naval warfare to be observed by belligerents and neutrals during the present war; that therefore this Government will insist that the rights and duties of the United States and its citizens in the present war be defined by the existing rules of international law and the treaties of the United States irrespective of the provisions of the Declaration of London."

October 29, 1914, the British Government issued another Order in Council repealing the order of August 20, but reënacting its provisions with amendments alleged to be "in order to minimize, so far as possible, the interference with innocent neutral trade occasioned by the war."

Even this second British edition of the London Declaration, for some reason not sufficiently explained, proved unsatisfactory to its publishers, and in an Order in Council of July 8, 1916, the Brit

1 See the case of the Dacia, p. 364.

ish Government enacted a new Order in Council, designated as "Maritime Rights Order-in-Council, 1916," the purpose of which is announced as follows:

"The Allied Governments, forced to recognize the situation thus created, therefore decided they must confine themselves simply to applying the historic and admitted rules of the law of nations."

As quoted in the New York World (Saturday, July 1, 1916) Lord Robert Cecil, Minister of War Trade, explained this action of the British Government:

"Two chief reasons led us to abandon the Declaration. First, there was the Zamora decision, which, while developing no [sic] application by English courts of international law, plainly showed that the Privy Council was unsatisfied with existing Orders in Council, which, based on the Declaration of London, might diminish but could not strengthen our rights. The second point was due to the fact that it was not an easily defendable position for the British Government to say it would adopt some clauses of the Declaration while ignoring or qualifying others. . . . The American critic who said the torpedoing of the Declaration of London was an effort to tighten our legal position rather than to tighten the actual blockade was quite correct in his diagnosis."

The nature of the London Declaration has been obscured because in its preliminary provision it is stated that "the Signatory Powers are agreed that the rules contained in the following chapters correspond in substance with the generally recognized principles of international law."

The affirmation is, however, true only in part. The London Declaration is in fact composed of the following distinct elements: (1) a careful codification of certain portions of the recognized law of neutrality; (2) certain innovations recognized as of general advantage to neutrals without serious inconvenience to belligerents; (3) certain rules embodying a compromise between the systems or doctrines hitherto advocated by the two groups, AngloAmerican (and Japanese) and Continental or French; (4) certain new provisions which may be considered as a quid pro quo for certain other new articles.

The compromise nature of the whole convention is shown by

the requirement of Article 65, which reads: "The provision of the present Declaration must be treated as a whole, and cannot be separated."

Lacking ratification by the powers, the London Declaration did not, at the commencement of the present war, express international law as it had previously existed, but because of the reasonableness of its various compromises and its clear enunciation of certain rules, and also because of the masterful exposition of its meaning contained in the general report of M. Louis Renault, the London Declaration has exercised a great influence, and will continue so to do, irrespective of whether or not its provisions secure recognition by the contending powers.

It is necessary, however, to bear in mind that when the London Declaration was elaborated the alliances between certain of the negotiating powers were not so closely drawn as they have since become through belligerent coöperation. If the Entente and Teutonic groups persist beyond the present period of hostilities the fundamental change in the political grouping of the world, even though it is not likely to change the appearance and formal existence of the society of independent states, as previously constituted, will nevertheless exercise a great influence upon the rules of neutrality, and consequently upon the provisions of the Declaration signed at London, February 26, 1909. .

(See American Journal of International Law, Supplement, July, 1915, pp. 1-8, 14.)

§ 41. THE BURDEN OF PROOF AND PRESUMPTIONS

THE SALLY

Before the Lords Commissioners of Appeals, 1795

[THE Lords Commissioners of Appeals present were Earl of Mansfield, Sir R. P. Arden, Sir W. Wynne.]

This was a case of a cargo of corn shipped March, 1793, by Steward and Plunket, of Baltimore, ostensibly for the account and risk of Conyngham, Nesbit and Co., of Philadelphia, and

consigned to them or their assigns:- By an endorsement on the bill of lading, it was further agreed that the ship should proceed to Havre de Grace, and there wait such time as might be necessary the orders of the consignee of the said cargo (the Mayor of Havre), either to deliver the same at the port of Havre, or proceed therewith to any one port without the Mediterranean, on freight at the rate of 5s. per barrel on delivery at Havre, and 5s. 6d. at a second port; the freight to be settled by the shippers in America according to agreement.

Amongst the papers was a concealed letter from Jean Ternant, the Minister of the French Republic to the United States, in which he informs the Minister of Foreign Affairs in France, "The house of Conyngham and Co., already known to the Ministers by their former operations for France, is charged by me to procure without delay a consignment of 22,000 bushels of wheat, 8,000 barrels of fine flour, 900 barrels of salted beef from New England. The conditions stipulated are the same as those of the contract of 2nd November, 1792, with the American citizens Swan and Co. for a like supply to be made to the Antilles, namely, that the grain, flour, and beef are to be paid at the current price of the markets at the time of their being shipped; that the freights shall be at the lowest course in the ports; that an insurance should be on the whole; and that a commission of five per cent. shall be allowed for all the merchant's expenses and fees. It has been moreover agreed, considering the actual reports of war, that the whole shall be sent as American property to Havre and to Nantes, with power to our government of sending the ships to other ports conditional on the usual freight. As you have not signified to me to whom these cargoes ought to be delivered in our ports, I shall provide each captain with a letter to the mayor of the place."

There was also a letter from J. Ternant to the mayor of the municipality of Havre: "Our government having ordered me to send supplies of provisions to your port, I inform you that the bearer of this, commanding the American ship the Sally, is laden with a cargo of wheat, of which he will deliver you the bill of lading."

To the 12th and 20th interrogatories the master deposed,

"that he believes the flour was the property of the French Government, and on being unladen, would have immediately become the property of the French Government."

In the argument it was insisted, on the part of the claimants, that the cargo was to be considered as the property of the American merchants; that it had been ordered of them, to be supplied and delivered at a certain place; and that under the general principle of law, property was not considered to be divested between the vendor and vendee till actual delivery. It was contended, that the contract remained executory till the completion by delivery in Europe; that the payment was contingent on the completion of the contract in this form, and that no money had passed, nor any compensation or agreement had intervened to produce an absolute conversion of the property; and it was prayed that the court would admit further proof to ascertain that circumstance.

On the part of the captors it was replied, that the general rule of law subsisting between vendor and vendee in a commercial transaction, referring only to the contracting parties, and not affecting the rights of third persons, could not apply to contracts made in time of war, or in contemplation of war, where the rights of a belligerent nation intervened; that the effect of such a contract as the present would be to protect the trade of the contracting belligerent from his enemy; and that if it could be allowed, it would put an end to all capture. It was said to be a known principle of the Prize Court, that neutral property must be proved to be neutral at all periods from the time of shipment, without intermission, to the arrival and subsequent sale in the port of the enemy; that the 12th and 20th interrogatories were framed with this view to inquire "whether on its arrival, etc. it shall and will belong to the same owner and no other, etc.," and a reference was made to the case of the Charles Havernerswerth in 1741, in which the form of attestation was directed to be prepared by the whole bar, and was established in the present form to ascertain the property at the several periods of shipment, and arrival in the enemy's ports, in cases where affidavits were to be received to supply the defects of the original evidence, in the place of plea and proof.