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 8 Droit des Gens. L. III. c. 7. $117. 6 De Jure Belli, L. III. c. 1. § 3. 7 Quæst. Jur. Publ. L. I. c. 11. PART II. Regulated Right of been placed under blockade by a belligerent Power. King Demetrius hanged up the master and pilot of a vessel carrying provisions to Athens at a time when he was on the point of reducing that city by famine". So Pompey the Great, during the war against Mithridates, set guards at the mouth of the Bosphorus, to observe if any sailed into the Bosphorus; and whosoever were captured, were put to death10. Such extreme penalties, however, may be regarded as having long since fallen into desuetude, although there are modern publicists who maintain the absolute Right of a belligerent to have recourse to them. Thus Martens" says, that "a belligerent may forbid all commerce with a place which he is besieging or blockading, and the approaches to which he can occupy; and in every case he may confiscate the goods and ships of those, who attempt to trade with the enemy in spite of notice to abstain from so doing, and even inflict personal penalties and death upon them." So Heffter 12 says, "The seizure of the ship and cargo and their confiscation, whatever be the nature of the cargo or the character of its owners, constitute the penal sanction of the prohibition issued by the belligerent. The captain and his accomplices may also be subjected to severe penalties. The actual usage of Nations is in general accordance as to this principle; but the application of it has given rise to numerous complications and ardent disputes." the 101. It has been observed that the practice of belligerents to forbid by Proclamation all trade with enemy, and to confiscate the property of parties contravening their Proclamation, was successfully impugned in the seventeenth century, as an immo 9 Plutarch. in Demetrio. § 314. 12 Das Europäische Völkerrecht, § 154 derate and unreasonable exercise of belligerent Force, and may now be regarded as having no sanction from the modern law of European Nations. We may trace back to the same century the first systematic attempt to regulate the belligerent Right of Blockade, which originated with the Dutch. >The States General of the United Provinces, proceeding upon the advice of their Courts of Admiralty, issued an Ordinance on 26 June 1630, the object of which was to regulate the blockade of the Ports of Flanders, then in possession of the Spanish Crown. The purport of the first article of that Ordinance was, that neutral vessels found coming out of or entering into enemies' ports in Flanders, or so near to them that their intention to enter them was beyond all doubt, should be confiscated with their cargoes by sentence of the said Courts," inasmuch as their High Mightinesses keep the said ports continually blockaded by their vessels of war at an excessive charge to the State, in order to hinder all transport to and commerce with the enemy; and because those ports and places are reputed to be besieged, which has been from all time an ancient usage after the example of all Kings, Princes, Powers, and other Republics, which have exercised the same Right on similar occasions 13" It will be seen that this Ordinance contemplates that three things shall be proved before the Courts of Admiralty: (1) the existence of a blockade de facto; (2) the reputation of such a blockade; and (3) an undoubted intention to violate the blockade These three conditions are in perfect accordance with those laid down by Lord Stowell (12 Dec. 13 Robinson's Collectanea Maritima, p. 158. These Ordinances are also set forth in a note to the Hurtige Hane, 3 Ch. Rob. P. 327. Legal re quirements ade. 1798) in the case of the Betsey, and which have been approved by the Lords of Appeal in Prize Causes. "On the question of blockade," he says, "three things must be proved: 1st, the existence of an actual blockade; 2d, the knowledge of the party; 3d, some act of violation either by going in or coming out with a cargo laden after the commencement of the blockade." 15 102. The point therefore which first requires to of a bind- be considered is, what constitutes an actual blockade. ing blockIt was one of the objects of the Armed Neutrality of 1780 to establish a more precise rule than had hitherto prevailed for determining that a port was actually under blockade, so as to impose upon neutral merchants an obligation to abstain from trading with that port15. In pursuance of that object the Empress of Russia communicated to the various European Powers a Declaration of the principles of the Armed Neutrality comprised in four propositions, the fourth of which was to the effect that, "in order to determine what characterises a blockaded port, that term shall only be applied to a port, where, from the arrangement made by the attacking Power with vessels stationed off the port and sufficiently near, there is evident danger in entering the port 16." Great Britain acceded to this definition of a blockaded port in her Convention with Russia on 17 Jan. 1801", and the principles generally affirmed by the European Powers during the present century may be said to be |