In his identic notes of February 20 to the British and German Governments, Secretary Bryan, in the interests of neutral shipping commerce, made certain proposals for the conduct of belligerent operations, notably in regard to the laying of mines; it was likewise suggested that Germany and Great Britain agree that "each will require their respective merchant vessels not to use neutral flags for the purpose of disguise or ruse de guerre."

The portion of the German reply (March 1, 1915) relating to the use of neutral flags was as follows:

"As provided in the American note, this restriction of the use of the submarines is contingent on the fact that enemy mercantile abstain from the use of the neutral flag and other neutral distinctive marks. It would appear to be a matter of course that such mercantile also abstain from arming themselves and from all resistance by force, since such procedure contrary to international law would render impossible any action of the submarines in accordance with international law." Germany made no reference to her own use of the neutral flag, perhaps because there had been no complaints of her action in this respect.

After the British Government had had an opportunity to consider the German answer, they devoted their reply principally to an attack upon Germany's treatment of Belgium and her methods of warfare, which were seemingly made a justification for the irregularities of her enemies. The suggested prohibition upon the use of foreign flags was passed over in silence.

(Prepared from the American, British, and German notes. See American Journal of International Law, Supplement, July, 1915, p. 55, passim. For the sake of brevity and clearness the exact terms and language of the original notes have not been always retained.)

§ 58. INTERNATIONAL TRADE

(See also Chapter VIII)

THE CONTINENTAL SYSTEM (1806-14)

On April 8, 1806, Mr. Fox, British Secretary for Foreign Affairs, informed Mr. Monroe, American Minister at London, that "in consequence of His Majesty the King of Prussia having taken possession of various parts of the Electorate of Hanover, and other dominions belonging to His Majesty [the King of Great Britain], in a forcible and hostile manner, and having also notified that all British ships shall be excluded from the ports of the Prussian dominions, and from certain other ports in the north of Europe, and not suffered to enter or trade therewith, in violation of the just rights and interests of His Majesty and his dominions, and contrary to the established law and practice of nations in amity with each other: His Majesty has judged it expedient to establish the most rigorous blockade at the entrances of the Ems, the Weser, the Elbe, and the Trave, and to maintain and enforce the same in the strictest manner, according to the usages of war, acknowledged and allowed in similar cases." And Mr. Monroe was requested "to apprise the American consuls and merchants residing in England that . . . from this time all the measures authorized by the law of nations, and the respective treaties between His Majesty and the different neutral powers, will be adopted and executed with respect to vessels attempting to violate the said blockades after this notice." (Am. State Papers, For. Rel., vol. I, p. 267.)

This was followed, on May 16, 1806, by further notice that measures had been taken to blockade the coast, rivers and ports from the Elbe to Brest because of "the new and extraordinary means resorted to by the enemy for the purpose of distressing” British commerce. On September 25, 1806, however, so much of the blockade as extended from the Elbe to the Ems "was for the present discontinued."

Napoleon's answer to the British declaration of blockade was

the Berlin Decree, issued November 21, 1806. After a recital of alleged illegal practices on the part of Great Britain - among others, "that she declares blockaded, places before which she has not a single vessel of war, although a place ought not to be considered blockaded but when it is so invested as that no approach to it can be made without imminent hazard" it was resolved to enforce against England "the usages which she has consecrated in her maritime code." To that end it was decreed:

"1. The British islands are declared in a state of blockade. "2. All commerce and correspondence with the British islands are prohibited. In consequence, letters or packets addressed either to England, to an Englishman, or in the English language, shall not pass through the post office, and shall be seized.

"3. Every subject of England, of what rank and condition soever, who shall be found in the countries occupied by our troops, or by those of our allies, shall be made a prisoner of

war.

"4. All magazines, merchandise, or property whatsoever belonging to a subject of England, shall be declared lawful prize.

"5. The trade in English merchandise is forbidden. All merchandise belonging to England, or coming from its manufactories and colonies, is declared lawful prize.

"6. One-half of the proceeds of the confiscation of the merchandise and property declared good prize by the preceding articles, shall be applied to indemnify the merchants for the losses which they have suffered by the capture of merchant vessels by English cruisers.

"7. No vessel coming directly from England, or from the English colonies, or having been there since the publication of the present decree, shall be received in any port.

"8. Every vessel contravening the above clause, by means of a false declaration, shall be seized, and the vessel and cargo confiscated as if they were English property.

"9. Our tribunal of prizes at Paris is charged with the definitive adjudication of all controversies which may arise within our empire, or in the countries occupied by the French army, relative to the execution of the present decree. Our tribunal of prizes at Milan shall be charged with the definitive adjudication of the

said controversies, which may arise within the extent of our kingdom of Italy.

"10. The present decree shall be communicated by our Minister of Exterior Relations to the Kings of Spain, of Naples, of Holland, of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and the barbarism of the English maritime laws."

"The present decree," it was announced, "shall be considered as the fundamental law of the empire, until England has acknowledged that the rights of war are the same on land as on sea, that it cannot be extended to any private property whatever, nor to persons who are not military, and until the right of blockade be restrained to fortified places, actually invested by competent forces." (Am. State Papers, For. Rel., vol. III, pp. 289-90.)

Great Britain replied to the Berlin Decree by the Orders in Council of January 7 and November 11, 1807. That of January 7 was, in part, as follows:

. . . His Majesty is thereupon pleased, by and with the advice of his privy council, to order, and it is hereby ordered, that no vessel shall be permitted to trade from one port to another, both which ports shall belong to or be in the possession of France or her allies, or shall be so far under their control as that British vessels may not trade freely thereat; and the commanders of His Majesty's ships of war and privateers shall be, and are hereby, instructed to warn every neutral vessel coming from any such port, and destined to another such port, to discontinue her voyage, and not to proceed to any such port; and any vessel, after being so warned, or any vessel coming from any such port, after a reasonable time shall have been afforded for receiving information of this His Majesty's order, which shall be found proceeding to another such port, shall be captured and brought in, and together with her cargo shall be condemned as lawful prize. State Papers, For. Rel., vol. III, pp. 267-68.)

" (Am.

On November 11 further announcement was made that "... His Majesty is therefore pleased. . . to order that all the ports and places of France and her allies, or of any other country at war with His Majesty, and all other ports or places in Europe, from which, although not at war with His

Majesty, the British flag is excluded, and all ports or places in the colonies belonging to His Majesty's enemies, shall, from henceforth, be subject to the same restrictions in point of trade and navigation, . . . as if the same were actually blockaded by His Majesty's naval forces, in the most strict and rigorous manner: and it is hereby further ordered and declared, that all trade in articles which are of the produce or manufacture of the said countries or colonies, shall be deemed and considered to be unlawful; and that every vessel trading from or to the said countries or colonies, together with all goods and merchandise on board, and all articles of the produce or manufacture of the said countries or colonies, shall be captured and condemned as prize to the captors. . . ." Exception, however, was made in favor of ships carrying on their commerce with the enemy by way of British ports. (Am. State Papers, For. Rel., vol. ш, p. 269.)

Napoleon promptly retaliated with the Milan Decree of December 17, 1807, by which it was declared:

"1. Every ship, to whatever nation it may belong, that shall have submitted to be searched by an English ship, or to a voyage to England, or shall have paid any tax whatsoever to the English Government, is thereby and for that alone declared to be denationalized, to have forfeited the protection of its king, and to have become English property.

"2. Whether the ships thus denationalized by the arbitrary measures of the English Government enter into our ports, or those of our allies, or whether they fall into the hands of our ships of war, or of our privateers, they are declared to be good and lawful prize.

"3. The British islands are declared to be in a state of blockade, both by land and sea. Every ship, of whatever nation, or whatsoever the nature of its cargo so may be, that sails from the ports of England, or those of the English colonies, and of the countries. occupied by English troops, and proceeding to England, or to the English colonies, or to countries occupied by English troops, is good and lawful prize, as contrary to the present decree, and may be captured by our ships of war, or our privateers, and adjudged to the captor. . . ."

These measures, however, were to "cease to have any effect