by the British Government, the attitude of that Government was in favour of the abolition, or restriction to the narrowest possible limits, of the doctrine of contraband, but of the enlargement of the doctrine of blockade by sweeping away the technicalities with which foreign jurists sought to envelop the subject under the natural wish to reduce as far as practicable the effect of a blockade.15 The rules adopted in 1909, though not binding on the British government, were accepted with certain modifications in detail by that Government on the outbreak of the war by an Order of Council of August 20th, 1914 (modified by an Order of October 29th), and were acted upon until Germany adopted the position that any foodstuffs en route for any port in the United Kingdom, though neither fortified nor a source of supply for the army, was contraband of war; commenced a system of blockade by submarine, ignoring all the principles of international law; scattered floating mines broadcast on the high seas, and, by taking possession of the control of all imported foodstuffs, rendered it impossible to contend that any foodstuffs destined for Germany were intended for the support of the civil population alone.16 The countermeasures adopted by the United Kingdom were the gradual lengthening of the list of contraband so as to cover practically all articles of importance to Germany, the abolition of the distinction between absolute contraband and conditional contraband, on the ground that distinction between the civil population of Germany and her army was practically impossible, and the proclamation in effect of a blockade, carried out at a far greater distance from the shores of Germany than earlier blockades, but of much greater efficacy than many blockades in the past save as regards transit from Germany to Sweden, and much more humane in its operation since detention has largely superseded confiscation as the penalty for efforts to evade the

15 Parliamentary Papers, Cd. 4554 and 4555. 16 Parliamentary Papers, Cd. 7816, pp. 19 sg.

blockade." In carrying out the contraband policy reliance has inevitably been placed on the doctrine of continuous voyage which owed its development 18 as a principle of international law to the efforts of the United States Courts in the war of secession to prevent the receipt by the southern states of the stores from Europe which they so urgently required to aid them in the prosecution of the war. No, new doctrine in this regard has been introduced; the only novelty of procedure is probably the rule that, in endeavouring to prove that goods found on a neutral ship were really intended for enemy use, evidence may be given to show that there have already been imported into the neutral country in question the full amounts of the goods in question which can possibly be required for neutral use. It is, however, clear that the extended system of blockade 19 is in effect all that is needed, and that the idea of contraband might well be merged in this more general conception.

The facts of the war have made it perfectly plain that, if the right to blockade in this sense is denied, the value of sea power will disappear. The use of mine fields and of submarines will enable a power which does not desire to risk an important engagement to preserve its fleet from serious attack, as the German fleet has in fact been preserved during this war. The chief advantage which will accrue to the stronger naval power will be the capacity of transporting troops against the colonial possessions of the enemy, while, with the abolition of the doctrine of contraband, these possessions will be able to secure continuous supplies

"Order-in-Council, March 11th, 1915, supplemented by The Maritime Rights Order-in-Council, 1916, which repealed the Order of August 20th, 1914, and its amending Orders.

"The Peterhoff, 5 Wall. 28 (contraband); The Springbok, 5 Wall. 1. (blockade); The Order-in-Council of 1916 expressly applies the doctrine to blockade.

1 Under the old law a blockade must not bar access to neutral ports; under the new practice goods destined for Germany by any route are stopped. But vessels carrying such goods are not confiscated, as under the rules of blockade, but merely prevented from carrying out the voyage, and goods, other than contraband, are detained, nof confiscated.

of munitions of war and every other commodity save troops both in belligerent and in neutral vessels. Plainly such a result would be fantastic, and it rests on a false view of war as a struggle between definite bodies or armed forces, while the belligerent countries develop in detachment their economic and social lives, as is the traditional practice of the Indian husbandmen. This was undoubtedly the principle which animated many members of both the Hague Conference of 1899 and that of 1907, but the experience of the war has given a rude shock to any such conception. The creation of national armies on a colossal scale involves the whole nation in any struggle, and totally forbids the idea of localizing and minimizing the effect of an outbreak of hostilities.

In view of these facts it is plain that, when the President demands freedom of navigation in war, save in so far as the seas may be closed by international action for the enforcement of international covenants, he does not really contemplate the occurrence of such a condition of affairs, in which a belligerent would respect a convention under which, while compelled itself to permit to its enemy freedom of navigation, it found itself shut off in whole or in part from maritime movement by the closing of the seas by an international authority. A power which ex hypothesi had violated an international compact would not be likely to refrain from the use of any means within its power to effect the ends for which it had thought fit to disregard its obligations. Equally certainly the power which it attacked would proceed at once to use its full strength, for it would be absurd to fetter itself in a struggle for existence, pending international intervention. The German doctrine, which places the end of war above any consideration of international law, is ultimately true, though not in the sense held by its authors. It is not the case, as Germany contends, that the violation of international law can be excused by the doctrine of self-preservation, but it is true that the effort to regulate by law a procedure which is the

negation of law is in the final issue self-contradictory and doomed to failure. Nothing is more clear than that the real aim of the President is to end war by exposing any belligerent to compulsion by the other powers, and the substantial effect of his doctrine is not to confer rights on belligerents, but to menace the power which violates international law with maritime pressure by the other powers. To the power which was prepared to abide by international law the rule would have clear advantages; in a war in which it was a neutral it would have the assurance that any interference with its ships by a belligerent was a defiance of international law; if unjustly attacked, it would expect to have the support of the other powers in closing the seas to its adversary.

From the theoretic standpoint, therefore, the acceptance by the United Kingdom of the formula proposed by the President presents no insuperable difficulties, for it accords with the desire of the United Kingdom and the Dominions, to bend all their efforts to secure peaceful development. From the practical point of view the question resolves itself, as do all the matters concerned, into the problem of the international organization, which will secure effectively that peace cannot be violated by any power without certainty of grave loss. This involves some really efficient scheme for the limitation of military and naval preparations, and for co-operation in coercive measures. If these requirements cannot be met, then it is clear that neither the United States nor the United Kingdom could consent to lay aside the power of blockade, as exercised by the United Kingdom during the present war, as being the most effective weapon. provided by sea power. Any other decision would simply be to play into the hands of Germany, whose only motive in seeking the freedom of the seas is to paralyze the efficacy of a weapon which she cannot fairly meet.

Edinburgh, Scotland.

VOL. XXXVIII. C.L.T.-16.

A. BERRIEDALE KEITH.

OPTIONS OF PURCHASE.

LONDON AND SOUTH WESTERN RAILWAY V. GOMM.

In a recent number of The Canadian Law Times (vol. 36, p. 446) there appears a very able article, in which the following questions are asked: (1) Does an option to purchase create in the option-holder an interest in the land? and (2) May it be obnoxious to the rule against perpetuities? The first question is replied to with an emphatic No. To the second question it is not easy to trace any definite reply, but a not unfair representation of the reply which would probably be made is as follows: The option contract may be void for remoteness if it offends against the rule against perpetuities, because and only because any contract which has the effect of an unreasonable restraint on alienation of land will be void.

With regard to the first proposition, viz., that "an option to purchase does not create in the option-holder an interest in land," it is rightly said that it depends almost entirely upon the judgment of the Court of Appeal in London and South Western Railway v. Gomm, but proceeds to add that "it must be admitted that the decision in the Gomm Case has been almost completely shattered by subsequent explanations and criticisms, and, indeed, in a subsequent case in the Court of Appeal, if not entirely dissented from, it is ignored." This proposition is established in the main by a clever analysis of the Gomm Case in both courts, Woodall v. Clifton, Manchester Ship Canal v. Manchester Race Course Company, South Western Railway v. Associated Portland Cement Manufacturers,* and other cases.

1 20 Ch. D. 579.

2 [1905] 2 Ch. 257.

3 [1901] 2 Ch. 37.

[1910] A. C. 12.

2

3