CHAPTER VI. ON BLOCKADE. Ancient practice of prohibiting all trade with the enemy-Object of a blockade-Penalties for the violation of a blockade-Regulated exercise of the Right of blockade-Legal requirements of a binding blockade-Declaration of the Congress of Paris-Characteristics of an effective blockade Knowledge on the part of the Master of a vessel-Constructive Warning-Public Notification-General Notoriety-Notification dispensing with actual warning must accord with the fact of a blockade-Practice of the French Prize CourtsPractice of the United States Prize Courts-Violation of a blockade -Equity of British Prize Courts-Favourable construction of Licenses-Breach of blockade by egress-Egress lawful in certain cases-Duration of delictum after egress-Effect of fraud in egress -Cargo not always condemned with the ship-Extent of coast which may be placed under blockade Limited operation of a blockade-Effect of a blockade on Licenses-Effect of Licenses on a blockade. - with the § 98. THE practice of a belligerent Power prohibit- Ancient ing all trade with an Enemy is of very ancient date. practice of prohibiting We have records of such a practice as early as the all trade commencement of the thirteenth century1. It seems enemy. to have been usual in that and the next following century for belligerent Powers on the outbreak of war to issue proclamations, warning all persons not to attempt to import victuals or other merchandise 1 Proclamation of Henry III. anno 1223. Rymer's Foedera, Tom. I. p. 440. Robinson's Col- into the Enemy's territory, and thereupon to arrest and confiscate the vessels and merchandise of any who might contravene such warning, as the property of parties adhering to the Enemy?. The States General of Holland appear to have maintained this practice without any dispute on the part of other Nations as late as the latter part of the sixteenth century; but it came to be questioned towards the end of the seventeenth century as an immoderate exercise of belligerent Right, since which time it has been generally reprobated and disclaimed, and may now be regarded as fallen into desuetude. On the other hand, the practice of intercepting all merchant vessels trading with the Enemy's ports by means of armed vessels cruising off the Enemy's coast is as ancient as war itself. Lord Stowell, who was always extremely reluctant to apply in its full rigour the European Law of Nations to subjects of the Ottoman Porte, considered the Law of Blockade to be an exception3, on the ground that a blockade was one of the most universal and simple operations of war in all ages and countries, excepting such as were nearly savage. “It must not be understood by them," he says, "that if an European army or fleet is blockading a town or port, they are at liberty to trade with that port. If that could be maintained, it would render the operation of a blockade perfectly nugatory. They in common with all other Nations must be subject to this first and elementary principle of blockade, that persons are not to carry into the blockaded port supplies of any kind. It is not a new operation of war; it is almost as old and as general as war itself. 2 Letter of Edward II of England to Philip V of France. Tanquam dictis inimicis adhærentes. Rymer's Foedera, Tom. III. p. 880. 3 The Kinders Kinder, 2 Ch. Rob. p. 89. The subjects of the Barbary States could not be ignorant of the general rules applying to a blockaded place, so far as concerns the interests and duties of neutrals 4." blockade. § 99. The object of a blockade is to reduce the enemy Object of a to surrender by cutting off his supplies of every kind. War being a contention by force in the prosecution of Right, the primary object of war is to constrain the wrong-doing Nation to desist from doing wrong, and to make compensation for past injury. With this object, it is lawful for a belligerent to seize the property of an enemy as a pledge of redress for the past, and of good conduct for the future; and if the Enemy resist, to use force; and if it should be necessary in self defence, even to take away an enemy's life. The intercepting all supplies going to an enemy is a milder alternative, the immediate effect of such a measure being to constrain the Enemy to submit by the inconvenience to which the failure of his supplies will expose him. Blockade is thus a more lenient proceeding in the conduct of a war than actual assault. The latter involves the necessary sacrifice of human life, and by the destruction of property which it entails, may risk to destroy the means whereby compensation may be made by the Enemy for past injury. The former gives to the Enemy the option of being spared the effusion of human blood, whilst the belligerent at the same time refrains from destroying property. As between belligerent parties. the establishment of a blockade is thus obviously not an improper use of superior force, and as the introduction of supplies by neutral merchants into a blockaded port must necessarily tend to frustrate the purpose of the belligerent party, which is to reduce 4 The Hurtige Hane, 3 Ch. Rob. p. 325. Penalties for the vio blockade. the Enemy to terms by cutting off his supplies, it would be evidently to the prejudice of the just right of a belligerent that a merchant should attempt to introduce any supplies into a place which is blockaded. A belligerent Power will accordingly be entitled to prevent the introduction of any such supplies; and if a merchant persists after notice in attempting to introduce them, the belligerent may seize and confiscate them. "If the supplies sent," says Grotius, "hinder the execution of my design, and the sender might have known as much, as if I had besieged a town or blocked up a port, and thereupon I presently expect a surrender or a peace, that sender is obliged to make me satisfaction for the damage that I suffer on his account, as much as he that shall take a person out of custody that was committed for a just debt, or help him to make his escape, in order to cheat me; and proportionally to my loss I may seize his goods, and take them as my own, for recovering what he owes me. Two conditions, it will be observed, are implied by Grotius in the case as thus stated, namely, actual measures on the part of the belligerent to stop all supplies being furnished to his enemy, and a knowledge of that fact on the part of the neutral merchant. § 100. Blockade being thus a lawful means of conlation of a straining an enemy to submit to terms, and recourse to a blockade being sometimes necessary, when the enemy is by position inaccessible to direct assault, it follows that it is inconsistent with Neutrality for any third party to interfere with the operations of a 5 Quod si juris mei executionem rerum subvectio impedierit, idque scire potuerit qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et jam deditio, aut pax expectabatur, tenebitur ille mihi de damno culpâ dato. De Jure Belli, L. III. c. I. § v. 3. blockade, and by introducing supplies into the blockaded place to hazard the defeat of the object, which the Belligerent Power has in view in resorting to such a measure. An attempt to relieve the necessities of an enemy, who is shut up in a place invested by a belligerent, is so clear an interference with the just operations of war, that the party so acting may with reason be treated as pro hac vice adhering to the enemy. Grotius says, with special reference to the introduction of supplies into a blockaded place, that "if my enemy's injustice towards me be evident, the neutral who aids him in his unjust war will be guilty not only of a civil, but of a criminal offence, and may be punished accordingly"." Bynkershoek' says, that "to carry supplies to a besieged enemy has been always a capital offence in friends, equally as in subjects, after notice given to them, and sometimes even without notice; and further, that if the supplies be intercepted by the belligerent, he may not only confiscate them, but inflict corporal, if not capital, punishment upon those who seek to introduce them." Vattel writes, "All commerce with a besieged town is absolutely prohibited. If I lay siege to a place, or even simply blockade it, I have a right to hinder any one from entering it, and to treat as an enemy whosoever attempts to enter the place, or carry anything to the besieged parties, without my leave; for he opposes my undertaking, and may contribute to the miscarriage of it, and thus involve me in all the misfortunes of an unsuccessful war." The practice of Nations in the earliest times sanctioned the enforcement of the severest penalties against all merchants, who should attempt to enter any port, which had 6 De Jure Belli, L. III. c. r. $3. 7 Quæst. Jur. Publ. L. I. c. 11. PART II. 8 Droit des Gens. L. III. c. 7. $117. |