understood that The Lusitania left Liverpool under the British flag.1

As to the British law on the subject, he said:

The British merchant shipping act makes it clear that the use of the British flag by foreign merchant vessels is permitted in time of war for the purpose of escaping capture. It is believed that in the case of some other nations there is a similar recognition of the same practice with regard to their flags and that none have forbidden it. It would therefore be unreasonable to expect His Majesty's Government to pass legislation forbidding the use of foreign flags by British merchant vessels to avoid capture by the enemy. Now that the German Government have announced their intention to sink merchant vessels at sight with their noncombatant crews, cargoes, and papers, a proceeding hitherto regarded by the opinion of the world not as war, but as piracy, it is felt that the United States Government could not fairly ask the British Government to order British merchant vessels to forego the means-always hitherto permitted-of escaping not only capture but the much worse fate of sinking and destruction. Great Britain has always when neutral accorded to the vessels of other States at war liberty to use the British flag as a means of protection against capture, and instances are on record when United States vessels availed themselves of this facility during the American Civil War. It would be contrary to fair expectation if now when the conditions are reversed the United States and neutral nations were to grudge to British ships liberty to take similar action. The British Government have no intention of advising their merchant shipping to use foreign flags as general practice or to resort to them otherwise than for escaping capture or destruction.2

The British legislation to which reference was made by Germany appears to be contained in Article 69 of the Merchant Shipping Act passed in 1894, which punishes the use of the British flag by a vessel not entitled to fly it "unless the assumption has been made. for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right."

The British Secretary of State maintained that no damage would accrue to neutrals and no advantage would be lost to the belligerent by the use of neutral flags if visit and search, as recognized and required by international law, were followed by its enemy. Thus:

1

Official text, American Journal of International Law, Special Supplement, July, 1915, p. 96.

2 Ibid., pp. 96-97.

If that obligation is fulfilled, hoisting a neutral flag on board a British vessel cannot possibly endanger neutral shipping and the British Government hold that if loss to neutrals is caused by disregard of this obligation it is upon the enemy vessel disregarding it and upon the Government giving orders that it should be disregarded that the sole responsibility for injury to neutrals ought to rest.'

As further indicating the desire of the United States to remove from Germany any pretext for unrestricted submarine warfare, the United States proposed in its note of February 20, 1915, that Germany and Great Britain should require "their respective merchant vessels not to use neutral flags for the purpose of disguise or ruse de guerre." This proposition was part of a general scheme to avert the horrors of submarine warfare which has already been discussed and which, it will be recalled, was unacceptable to both of these countries.

1 Official text, American Journal of International Law, Special Supplement, July, 1915, p. 97.

2 Ibid., p. 98.

CHAPTER XII

MINES, WAR ZONES, AND BLOCKADE

It is an admitted right of a belligerent, deeply imbedded in the practice of Nations, for which authority need not be quoted, to blockade the ports and the coasts of the enemy provided that a proclamation of blockade be made, that the fact of the blockade be notified to neutral Governments or that neutral Governments to be taxed with its provisions have notice of the blockade, that the blockading force be employed within the vicinity of the coast of the blockaded ports, either to prevent vessels from entering and from leaving the blockaded region or making the entry and departure of such vessels dangerous, that the blockade be applied impartially to all nations and not relaxed in the case of any one or more; and provided further and always, that neutral countries be not directly or indirectly blockaded by a belligerent. Blockade applies solely to trade entering or departing from belligerent territory. Trade seeking to enter the territory of the enemy through a neutral country is subject to confiscation if it be contraband and seized in accordance with the methods in such cases made and provided. Just as communication may be closed by investment on land, so communication may be shut off by blockade by water, and indeed a port may be at one and the same time invested by land and blockaded by sea. The purpose in each case is the same: to starve the enemy into submission. Famine is a weapon, used alike in land and naval warfare, for it is the experience of mankind, recognized by nations and therefore incorporated in the law of nations, that an army never fights upon an empty stomach. To deprive the army of sustenance is therefore legitimate; and to starve the civilian population in order that by such starvation the army shall surrender (as in the case of Lee's surrender at Appomattox) is the endeavor of every belligerent, commended by the victor and denounced by the victim.

It may be said, before taking up the matter of the war zone, that the United States labored with Great Britain to prevent the scattering of mines to which Germany had already resorted and which was the cause alleged by Great Britain for making a war zone of the

North Sea; and before further proceeding it should be mentioned that the United States, on February 19, 1917, before the outbreak of war with Germany and while it was still hoped that war might be averted, in a formal note to the British Ambassador, called attention to the Department's memorandum of August 13, 1914, and the subsequent correspondence between Great Britain and the United States, and then squarely and unequivocally protested against the action of Great Britain in the following language:

As the question of appropriating certain portions of the high seas for military operations, to the exclusion of the use of the hostile area as a common highway of commerce, has not become a settled principle of international law assented to by the family of nations, it will be recognized that the Government of the United States must, and hereby does, for the protection of American interests, reserve generally all of its rights in the premises, including the right not only to question the validity of these measures, but to present demands and claims in relation to any American interests which may be unlawfully affected, directly or indirectly, by virtue of the enforcement of these measures.1

First, as to the matter of mines. On August 7, 1914, that is to say, three days after the outbreak of war between Germany and Great Britain, the American Ambassador to Berlin reported that "he is informed by the German Foreign Office that German ports are strewn with mines," and the Foreign Office requested "that timely warning be given shippers against navigating in ports which foreign forces might use as bases. On the 11th of August the British Embassy informed the Department of State that "The Germans are scattering contact mines indiscriminately about the North Sea in the open sea without regard to the consequences to merchantmen" and that "in view of the methods adopted by Germany the British Admiralty must hold themselves fully at liberty to adopt similar measures in self-defense which must inevitably increase the dangers to navigation in the North Sea. But, before doing so, they think it right to issue this warning in order that merchant ships under neutral flags trading with North Sea ports should be turned back before entering the area of such exceptional danger."2

In reply to this memorandum the Department of State, on the

1 United States, Department of State, Papers Relating to Maritime Danger Zones, etc. (April 4, 1917), pp. 33-34.

2 Ibid., p. 6.

13th of August, used language which foreshadows the issue raised by the United States of the freedom of the seas. Thus:

The Secretary of State is loath to believe that a signatory to that Convention [Hague Convention of 1907 relative to the Laying of Automatic Submarine Contact Mines] would willfully disregard its treaty obligation, which was manifestly made in the interest of neutral shipping.

All restrictions upon the rights of neutrals upon the high seas, the common highway of nations, during the progress of a war, are permitted in the interests of the belligerents, who are bound in return to prevent their hostile operations from increasing the hazard of neutral ships in the open sea so far as the exigencies of the war permit.1

After this statement of the principle, the memorandum made a personal appeal to the British Government, which seems greatly to have impressed it. Thus, the memorandum continues and concludes:

If an enemy of His Majesty's Government has, as asserted, endangered neutral commerce by an act in violation of The Hague Convention, which cannot be justified on the ground of military necessity, the Secretary of State perceives no reason for His Majesty's Government adopting a similar course, which would add further dangers to the peaceful navigation of the high seas by vessels of neutral powers.

The Secretary of State, therefore, expresses the earnest and confident hope that His Majesty's Government may not feel compelled to resort, as a defensive measure, to a method of naval warfare which would appear to be contrary to the terms of The Hague Convention and impose upon the ships and lives of neutrals a needless menace when peaceably navigating the high seas.1

In a memorandum of August 19th, the British Embassy took notice in the following terms of the hope expressed by the United States that Great Britain would not resort to the laying of mines, saying on this point:

His Majesty's Government share the reluctance of the Secretary of State to see the practice extended and the danger to neutral shipping increased. At the same time His Majesty's Chargé d'Affaires is instructed to point out that if Great Britain refrains from adopting the methods of Germany the result is that Germany receives impunity unless the neutral Powers can

1 United States, Department of State, Papers Relating to Maritime Danger Zones, etc. (April 4, 1917), p. 7.