"A blockade must be confined to the ports and coast of the enemy, but it may be instituted of one port or of several ports or of the whole of the seaboard of the enemy. It may be instituted to prevent the ingress only, or egress only, or both."
The United States Government therefore concluded that, measured by the three universally conceded tests above set forth, the British policy could not be regarded as constituting a blockade in law, in practice, or in effect. So the British Government was notified that the American Government declined to recognize such a "blockade" as legal.
Stress had been laid by Great Britain on the ruling of the Supreme Court of the United States on the Springbok case. The ruling was that goods of contraband character, seized while going to the neutral port of Nassau, though actually bound for the blockaded ports of the South, were subject to condemnation. Secretary Lansing recalled that Sir Edward Grey, in his instruction to the British delegates to the London conference before mentioned, expressed this view of the case, as held in England prior to the present war:
"It is exceedingly doubtful whether the decision of the Supreme Court was in reality meant to cover a case of blockade running in which no question of contraband arose. Certainly if such was the intention the decision would pro tanto be in conflict with the practice of the British courts. His Majesty's Government sees no reason for departing from that practice, and you should endeavor to obtain general recognition of its correctness."
The American note also pointed out that "the circumstances surrounding the Springbok case were essentially different from those of the present day to which the rule laid down in that case is sought to be applied. When the Springbok case arose the ports of the confederate states were effectively blockaded by the naval forces of the United States, though no neutral ports were closed, and a continuous voyage through a neutral port required an all sea voyage terminating in an attempt to pass the blockading squadron."
Secretary Lansing interjected new elements into the controversy in assailing as unlawful the jurisdiction of British prize courts over neutral vessels seized or detained. Briefly, Great Britain arbitrarily extended her domestic law, through the promulgation of Orders in Council, to the high seas, which the American Government contended were subject solely to international law. So these Orders in Council, under which the British naval authorities acted in making seizures of neutral shipping, and under which the prize courts pursued their procedure, were viewed as usurping international law. The United States held that Great Britain could not extend the territorial jurisdiction of her domestic law to cover seizures on the high seas. A recourse to British prize courts by American claimants, governed as those courts were by the same Orders in Council which determined the conditions under which seizures and detentions were made, constituted in the American view, the form rather than the substance of redress:
"It is manifest, therefore, that, if prize courts are bound by the laws and regulations under which seizures and detentions are made, and which claimants allege are in contravention of the law of nations, those courts are powerless to pass upon the real ground of complaint or to give redress for wrongs of this nature. Nevertheless, it is seriously suggested that claimants are free to request the prize court to rule upon a claim of conflict between an Order in Council and a rule of international law. How can a tribunal fettered in its jurisdiction and procedure by municipal enactments declare itself emancipated from their restrictions and at liberty to apply the rules of international law with freedom? The very laws and regulations which bind the court are now matters of dispute between the Government of the United States and that of His Britannic Majesty."
The British Government, in pursuit of its favorite device of seeking in American practice parallel instances to justify her prize-court methods, had contended that the United States, in Civil War contraband cases, had also referred foreign claimants to its prize courts for redress. Great Britain at the time of the American Civil War, according to an earlier British note, "in spite of remonstrances from many quarters, placed full reliance on the American prize courts to grant redress to the parties interested in cases of alleged wrongful capture by American ships of war and put forward no claim until the opportunity for redress in those courts had been exhausted."
This did not appear to be altogether the case, Secretary Lansing pointed out that Great Britain, during the progress of the Civil War, had demanded in several instances, through diplomatic channels, while cases were pending, damages for seizures and detentions of British ships alleged to have been made without legal justification. Moreover, "it is understood also that during the Boer War, when British authorities seized the German vessels, the Herzog, the General and the Bundesrath, and released them without prize court proceedings, compensation for damages suffered was arranged through diplomatic channels."
The point made here was by way of negativing the position Great Britain now took that, pending the exhaustion of legal remedies through the prize courts with the result of a denial of justice to American claimants, "it cannot continue to deal through the diplomatic channels with the individual cases."