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MEMORANDUM BY THE FOREIGN OFFICE.

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Article 2.

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"The existence of a state of war must be notified to the neutral Powers without delay, and shall not be held to affect them until after the receipt of a notification, which may, however, be given by telegraph. Nevertheless, neutral Powers may not rely on the absence of notification if it be established beyond doubt that they were in fact aware of the existence of a state of war.

•

" Article 3.

Article I of the present Couvention shall take effect in case of war between

two or more of the Contracting Powers.

"Article 2 applies as between a belligerent Power which is a party to the

Convention and neutral Powers which are also parties to the Convention."

47. In former times, the times of our great national wars with Spain, Holland, and France, declarations of war, if made at all, were usually made subsequently to such acts of violence as a general embargo on so much of the adversary's shipping as was within reach, whether in national ports and within territorial waters, or even on the high seas. The conventional prohibition of any kind of warlike act prior to a declaration of war has altered the situation.

The

48. The essential principle of an embargo was that it was a measure taken in anticipation of an imminent war, but yet actually in time of peace. It was of the nature of an order, warning, or prohibition against certain ships leaving the ports at which they happened to be at the time. The ships were in fact temporarily sequestrated by the exercise of a sovereign right which might or might not, according to circumstances, be held thereafter to have constituted an act of war. sequestration lasted until it was seen whether war actually broke out or not. If it did, the state of war would be considered retrospectively to have existed at the time the embargo was laid, and the ships duly condemned as good prize. If war did not result, the ships were set free and allowed to depart, claims for compensation being in certain circumstances allowed.

49. It would be impossible at the present day to contend that the laying of an einbargo was not a hostile act, and it must be taken as settled that an embargo, prior to a declaration of war or the expiry of an ultimatum, cannot be ordered without violating the terms of the Hague convention above quoted. From the moment a state of war exists, however, there is no further occasion for an embargo in the true sense. Action now proceeds from a belligerent, who, as such, applies to enemy ships the ordinary rules of naval warfare. The technical character of the measures taken is accordingly changed. In order to prevent the departure of vessels which it would formerly have been necessary to embargo, they must now be definitely captured and brought before the prize courts for condemnation as enemy prizes; and the only ground on which the treatment of such vessels may be differentiated from that accorded to enemy ships generally during a war is the fact that they entered territorial waters in necessary ignorance of the impending outbreak of war.

50. How far on the one hand this fact may, even in the absence of conventional stipulations binding upon the parties, be held to justify a claim to special indulgence, and how far, on the other hand, the supreme interests of the State may render it inexpedient to relax in any way the rigour of the law,—these are questions which have already been seen to influence the grant or refusal of days of grace.

In the present connection they call for special cousideration from the point of view of the import- ance of not relinquishing in certain circumstances such of the advantages formerly secured by the practice of embargoes as may still be legitimately open to a belligerent under the changed conditions of international law.

51. Those advantages were derived from the element of surprise, which allowed of delivering an unexpected and for that reason the more telling blow against a very vulnerable point in the adversary's vital system; and it is only in so far as this element of surprise may, under the new and in this respect less favourable conditions continue to play an important part in the first stage of a campaign, that the seizure of enemy merchant-ships in port or within territorial waters at the opening of the war can be considered to retain any value.

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