The general charge as to the arrest of American-born citizens on board neutral vessels and in British ports, the ignoring of their passports, and their confinement in jails requires evidence to support it. That there have been cases of injustice of this sort is unquestionably true, but Americans in Germany have suffered in this way as Americans have in Great Britain. This Government has considered that the majority of these cases resulted from overzealousness on the part of subordinate officials in both countries. Every case which has been brought to the attention of the Department of State has been promptly investigated and, if the facts warranted, a demand for release has been made.1

1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 263-264.

CHAPTER VI

RESTRAINTS ON COMMERCE

SECTION 1. CONTRABAND

Five headings of Senator Stone's letter and of Secretary Bryan's reply are so interrelated that they can be treated as phases of a single question, namely, American acquiescence in British interference with American trade. The headings, however, are interesting in themselves, and as they state the nature and limit the scope of the discussion they are quoted in their original order:

4. Submission without protest to British violations of the rules regarding absolute and conditional contraband as laid down in The Hague Conventions, the Declaration of London, and international law.

5. Acquiescence without protest to the inclusion of copper and other articles in the British lists of absolute contraband. 6. Submission without protest to interference with American trade to neutral countries in conditional and absolute contraband.

7. Submission without protest to interruption of trade in conditional contraband consigned to private persons in Germany and Austria, thereby supporting the policy of Great Britain to cut off all supplies from Germany and Austria.

8. Submission to British interference with trade in petroleum, rubber, leather, wool, etc.1

In regard to the charge contained in this group of headings, it should be said at once and without reservation that, although The Hague Conventions have been repeatedly invoked in the matter of contraband, they do not directly or indirectly regulate, touch, or concern this subject. And yet it should be mentioned in this connection that the delegates to the Second Hague Peace Conference attempted to do so and that a committee of the Conference considered contraband and agreed upon lists of absolute contraband which, although not adopted, nevertheless were submitted to the London

1 Official text, American Journal of International Law, Special Supplement, July, 1915, pp. 257-258.

Naval Conference, adopted by that body of experts and included in Articles 21 and 22 of its Declaration; and that the London Conference also agreed upon a list of conditional contraband and a free list, that is to say, a list of articles which should not be considered either as absolute or as conditional contraband. But the Declaration of London was not ratified, and, in the absence of an international agreement negotiated at The Hague, at London, or elsewhere, we are thrown back upon the general principles of international law as evidenced by the practice of Nations.

In considering the subject of contraband we are met on the very threshold with a great difficulty which inheres in the thing itself, because, it cannot be too often pointed out, there is, in the absence of a general agreement upon the subject, no standard other than that of the individual interests of the belligerents by which to test the propriety of their actions. The belligerents have interests of their own which they look after with tender care and anxious solicitude. The neutrals also have interests of their own which determine their policy and which point their protests. The result, if result be reached, is a compromise based upon the balance of convenience or inconvenience, in reaching which the belligerents are ordinarily unmindful of their contentions when neutral, and the neutrals apparently are unmindful of their claims when belligerent and apparently blind to the fact that they may again be belligerents.

There is a general feeling that belligerents may properly prevent neutral supplies from reaching the enemy, but when we go beyond this we enter the realm of confusion and contradiction. Delivery to the enemy may mean delivery to the actual military forces or to the Government to which they belong, and there is a general agreement that belligerents may prevent this by intercepting the articles on the way. But if we probe beneath the surface we find that if the articles of commerce can only be used by military and naval forces it may be presumed that destination to the enemy country is tantamount to destination to the army or to the governmental authorities. There is a vast multitude of objects which may be used by the army and navy if they come into their possession and which might be used by the people generally if they did not fall into the hands of the armed forces. A belligerent possessing sea power will naturally seek to enlarge this list of commodities of doubtful use by insisting that, in fact if not in theory, they will find their way to the armed forces of the enemy, and will therefore use its maritime supremacy to seize them before they reach their point of

destination. An enemy which imports its foodstuffs, or a large portion of its foodstuffs, in times of peace, and which necessarily relies upon the outer world for the enlarged supplies required by war, will find the markets of the world open in theory but closed in fact by its enemy if it possesses mastery of the seas. Such a belligerent is likely to use its naval forces to blockade the enemy country so that goods may neither go in nor come out, and, regarding a voyage to the enemy as continuous although through neutral territory, prevent articles of contraband from reaching the enemy country through neutral channels.

There is a general agreement that, in the absence of blockade, neutrals may trade with the enemy in articles which are meant for peaceable use in the sense that they cannot be used for war. But there is a great divergence of opinion as to these articles, for although, as raw material, they may be innocent, nevertheless they may be objects from which the means and instrumentalities of war are manufactured.

It is therefore fair to take it as admitted that the belligerent has the right to capture certain articles destined to his enemy. The method of exercising the right and the articles which may properly be seized are the subject of controversy. The United States conceded during the present war that when belligerent it had determined for itself the lists of contraband, that such lists were inconsistent with its views and policy when neutral, and that the right which it then claimed and exercised could not properly be denied to others now.

It was largely because of this divergence of view and diversity of practice that the United States proposed to the belligerents that they accept during the war the Declaration of London. If they had been willing to do so there would then have been a list of absolute contraband, which each belligerent might have enlarged according to a prescribed method; a list of conditional contraband, which might in the same way have been increased by a specified method; and a list of free goods, which could not be varied by any of the belligerents during the war. In this way the lists would have been known in advance; the belligerents, while able to vary the lists of the first two categories, would nevertheless have been required to make their arrangements in accordance with the lists and the method prescribed; and neutrals could have made their plans for the future with at least some assurance of certainty.

Germany and its Allies were willing to accept the Declaration

of London in its entirety; Great Britain and its Allies were unwilling to do so; and as the Declaration required to be accepted as a whole, if accepted at all, the proposal of the United States was therefore rejected and withdrawn. It is fair to state in this connection that, while Germany and its Allies may be applauded for their willingness to accept the Declaration, Great Britain and its Allies are not subject to criticism because they were unwilling to do so. In the absence of an engagement each was a free agent, and until ratified the Declaration of London was not a binding agreement.

It has been thought advisable to make these observations before taking up the subject of contraband, as without understanding the exact nature of the situation the reader is likely to be confused by the divergent attitude of the belligerent claiming that the enemy is wrong and the attitude of the United States admitting, and quite properly, that neither was right.

SECTION 2. COPPER

On May 23, 1862, there was issued by the Secretary of the Treasury of the United States a circular containing a very large and imposing list of contraband, and collectors of customs were directed before giving clearances to require bonds with sufficient sureties against the reshipment of the prohibited articles from their port of destination to the Southern armies. This paragraph, in which copper figures, is so important that it is quoted in full:

You will be especially careful upon application for clearances to require bonds, with sufficient sureties, conditioned for fulfilling faithfully all the conditions imposed by law or departmental regulations, from shippers of the following articles to the ports opened, or to any other ports from which they may easily be, and are probably intended to be, reshipped in aid of the existing insurrection, namely: liquors of all kinds other than ardent spirits, coals, iron, lead, copper, tin, brass, telegraphic instruments, wire, porous cups, platina, sulphuric acid, zinc, and all other telegraphic materials, marine engines, screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, fire-bars, and every article or other component part of an engine or boiler, or any article whatever which is, can or may become applicable for the manufacture of marine machinery, or for the armor of vessels.1

By the President's Proclamation of April 29, 1865, issued when the Civil War had practically ended, the list of contraband was 1 Foreign Relations of the United States, 1862, p. 425.