Actual

§ 512. 1. The definition of a lawful maritime blockade, requiring the actual presence of a maritime force, presence of stationed at the entrance of the port, sufficiently near to ading force. prevent communication, as given by the text-writers, is confirmed

bardment: while, at the time, at some points always, and at others occasionally, the blockade will have mainly the features of a commercial blockade only. Will it be practicable to get formidable maritime nations to agree never to blockade, unless as part of an actual existing siege and investment of a port? Sebastopol, against which the energies of two great nations were directed almost solely for two years, was never in that condition. No attempt was made to invest it. Richmond was never in a condition of siege, in that sense. Indeed, with modern artillery, towns are to be defended and attacked at such distances that an investment or siege, in the old sense, is usually impossible, and, if possible, must be soon decisive. And, if the restriction is not to an actual investment or siege, is it probable that a test can be invented of such fairness and clearness of application that nations will agree to be bound by it, or will stay bound? Is it probable that nations with naval superiority will agree to leave war so much to land-forces as these propositions imply? As for the statement, that, in earlier times, purely commercial blockades are rarely found,—it is perhaps no more than saying that such blockades have grown with the growth and importance of commerce.

Those who have proposed the limitation have usually contended that blockades were originally confined, and ought again to be confined, to "fortified places." This distinction is assumed as a practicable one by Mr. Cass, and by Mr. Cobden in his speech of Oct. 24, 1862, at Manchester. But, in late times, there are no walled towns; and, with our present engines of war, the distinction between fortified and unfortified places is of little value. Cities are defended at strategic points of their dis tant neighborhoods, and by earthworks of rapid and rather easy construction; and any city may be said to be fortified, in time of war, which is in prospective peril and worth defending. So, as to naval arsenals and stations. In the United States generally, and sometimes in Europe, the largest commercial towns are naval stations: and, with the increase of the use of steam-machinery and iron, it is always open to a government to construct and arm many of its ships by contract, in commercial towns; and it is likely to be the practice, under pressure of war, and where a volunteer navy is employed.

When the parties to the Declaration of Paris proposed to abolish privateering, the United States contended that both equality and the interests of neutrals required the surrender of the right to capture enemy's property at sea; and the next step in the reasoning was, that such a surrender involved that of commercial blockades. Either from too large premises, or faulty deductions, the whole proposal seems to have fallen before its inherent difficulties and the tremendous necessities of war. As to the legality of commercial blockades, Napoleon assigned, as one of the detences of his Berlin decree, that England "extended the right of blockade to unfortified cities and ports, to harbors and the mouths of rivers; while this right, according to reason and the usage of civilized nations, is only applicable to fortified places." (Martens, tom. i. p. 489.) But, in this position, Napoleon is without support. Occasionally, in the American despatches, there have been intimations of that sort, arguendo, but no national act has been founded on that position; and the United States have recognized such blockades, and established the latest and largest. Among commentators, an Italian, Luchesi Palli, sustains Napoleon's position (Principes du Droit Pub. Mar. p. 1×0); but it is discarded by Hautefeuille, Massé, Ortolan, Manning, Heffter, Kent, Wheaton, Phillimore, and Wildman. Mr. Westlake (Commercial Blocka le, p. 6) finds

by the authority of namerons modem trades, and erection by the convention of 1941, tetween Great Britain al Budi S tended as a final adj vetment of the deputed pots of marin law, which had given rise to the armed neutrality of 175 aid 1861. (1,22 (4)

www & tomate tron of the Letrnction, and approves the Americas forpeo does M. Caðmir Périer, in the Kerse des dear Modes. De harcay, 14 p ££ Mr. Conal teeth, are referred to, shows in clear light the prime medie tvenem o curaternal box kates of the ports of a single ounty = Inge vile its communication by railroad with adjoining maritime friendly at:IO DY DÒ structed — D.

(a) The 30 art. sect. 4, of this convention, declares, “That in order to determine what characterizes a blockaded port, that denomination is given only where there is. by the diaposition of the power which attacks it with ships stationary, or sufrently near, an evident danger in entering."

120 Effective Blockade. — During the Crimean war, the English and French Decisrations of 1854 assume an "effective blockade, which may be established with an adequate force." The Declaration of Paris, of 1856, requires that a blockade, to he binding on neutrals, shall be “effective, that is to say, maintained by a force sument really to prevent access to the coast of the enemy." This definition is unscientific, and, in its literal sense, requires an impossibility. Earl Russell, in a speech of th March, 1857, defines an effective blockade as "such that no vessel could with safety attempt to pass through." Earl Granville, in the debate of May 16, 1861, says, “Such a force as, I do not say to make it impossible, but at any rate to make it very difficult, for vessels to obtain ingress or egress;" and Lord Brougham said, a blockade must be one which "precluded a reasonable chance of entrance." Earl Russell, in his instructions to Lord Lyons, of Feb. 15, 1862, respecting the American blockade, says, "Assuming... that a number of ships is stationed, and remains at, the entrance of a port, sufficient really to prevent access to it, or to create an evident danger of entering or leaving it, and that these ships do not voluntarily permit ingress or egress, the fact that various ships have successfully escaped through it, will not of itself prevent the blockade being an effective one by international law." See also Earl Russell to Mr. Mason, Feb. 17, 1863, where his lordship explains the language of the Declaration of Paris as not intended to require that ingress and egress should be made impossible, but as aimed at paper blockades, or nominal and practically insufficient blockades, and requiring only that the blockade be practically and reasonably effective. The Confederate authorities protested against this interpretation, but it was adhered to by the British Government. (Parliamentary Papers, 1863.)

M. Rouher, the French Minister of Commerce, communicated to the Chamber of Commerce in September, 1861, a note from the Department of Foreign Affairs, relating to the American blockade, in which the definition is stated, “Forces sufficient to prevent the ports being approached without exposure to a certain danger." (Moniteur Universel, September, 1861.)

Mr. Wheaton, in a note to Mr. Buchanan of July 1, 1846, during the Mexican war, uses the phrase, "Forces stationed so near the ports as to render it dangerous to approach or enter them."

During the civil war, the United States Government recognized fully the obligation to make its blockade actual and effective; and, in its diplomatic correspondence and judicial decisions, the definitions of an effective blockade "were satisfactory to

§ 513. The only exception to the general rule, which Temporequires the actual presence of an adequate force to con- ruption. stitute a lawful blockade, arises out of the circumstance of the

rary inter

neutrals, and substantially to the effect that the force must be sufficient to make ingress or egress by unarmed vessels sensibly dangerous; and the actual effectiveness of the blockade, wherever a case arose of a vessel captured or warned off, was never disputed by the neutral powers." (Lord Lyons to Lord J. Russell, May 2, 1861. Same to same, May 4, 1861. Earl Russell's speech in the House of Lords, March 10, 1862. Sir R. Palmer's speech, March 7, 1862. Earl Russell to Lord Lyons, 15th February, 1862. Earl Russell to Mr. Mason, Feb. 10, 1863.)

NEUTRAL VESSELS OF WAR. Neutral vessels of war have no privilege against blockade; and the fact that they cannot be searched gives the blockading power the more right to require them to keep clear of the lines of blockade. (Mr. Wheaton to Mr. Buchanan, July 1, 1846. Ortolan, Dipl. de la Mer, tom. ii. p. 334. Hautefeuille, Droits des Nat. Neutr. tom. ii. p. 219.) During the Mexican blockade by France, special orders were given, prohibiting the entrance of neutral ships of war; but it was allowed by special orders in the civil war in the United States. (Lord Lyons to Admiral Milne, May 11, 1861.) And the United States permitted neutral vessels of war to carry through the blockades the official despatches not only of their own governments, but of other friendly governments. (Correspondence between Lord Lyons and Mr. Seward of Oct. 12 and 14, 1861: Dipl. Corr. 168, 173.)

With reference to occasional interruptions of a blockade by stress of weather, the French authors have a formal and fanciful theory, that blockade is an act of territorial jurisdiction by the belligerent, who obtains this jurisdiction by displacing the enemy's jurisdiction to the extent of the lines of blockade. (Hautefeuille, tom. iii. p. 120. Ortolan, tom. ii. p. 811.) But it is not true that the blockade can be effectual only within the marine league or cannon-shot of the shore. Blockade is only a competition of diligence and force over waters either free to all, or within national jurisdiction, as it may be; and, if the blockade-runner gets in or escapes, he cannot be afterwards treated as having violated a jurisdietional right. Upon their theory, the French writers contend that an interruption ends a blockade, and requires a new acquisition of jurisdiction. But this is merely a change of words. The question is, as to each interruption, whether it was in fact such a break as to require new notice and new inception. The British and American writers and diplomatists take a practical view of the subject, and do not lay down an absolute rule that if, by stress of weather, there shall intervene an hour or day when the blockade was not effective, a new inception and notice is required. If the force and its disposition was adequate, and the interruption temporary by stress of weather, and with no change of intention, and restored in a reasonable time, the neutral has his chance of getting in or out; but a new inception, ab origine, is not required. Lord Russell, in his reply of Feb. 10, 1863, to Mr. Mason, the agent of the rebel States, says, "There is no doubt that a blockade would be in legal existence, although a sudden storm or change of wind blew off the squadron. Such an accident does not suspend, much less break, a blockade ; whereas, on the contrary, the driving off a blockading force by a superior force does break a blockade, which must be renewed de novo, in the usual form, to be binding upon neutrals."

It has been held, in the British courts, that an effective blockade cannot be constituted by drawing a line to prevent ships going to particular ports, if the line include other ports to which they have a right to go.

In the Franciska (Moore's Privy Council Cases, x. 37), it was held that it was not

occasional temporary absence of the blockading squadron, produced by accident, as in the case of a storm, which does not suspend the legal operation of the blockade. The law considers an attempt to take advantage of such an accidental removal a fraudulent attempt to break the blockade. (a)

Knowl

edge of the

234

§ 514. 2. As a proclamation, or general public notifiparty. cation, is not of itself sufficient to constitute a legal blockade, so neither can a knowledge of the existence of such a blockade be imputed to the party, merely in consequence of such a proclamation or notification. Not only must an actual blockade exist, but a knowledge of it must be brought home to the party, in order to show that it has been violated. (a) As, on the one hand, a declaration of blockade which is not supported by the fact cannot be deemed legally to exist, so, on the other hand, the fact, duly notified to the party on the spot, is of itself sufficient to affect him with a knowledge of it; for the public notifications between governments can be meant only for the information of individuals; but if the individual is personally informed, that purpose is still better obtained than by a public declaration. (b) Where the vessel sails from a country lying sufficiently near to the blockaded port to have constant information of the state of the blockade, whether it is continued or is relaxed, no special notice is necessary; for the public declaration in this case implies notice to the party, after sufficient time has elapsed to receive the declaration at the port whence the vessel sails. (c) But where competent for a belligerent to blockade a port as against neutrals, while he allowed his own or his enemy's merchant-vessels privileges of ingress and egress, for the purpose of trade, which were not allowed to the neutrals. The objections to such a course are not only that it is not equal, but that, if the courts should attempt to make it equal by extending the same privileges to neutrals in the same situation, there would arise a confusion and perplexity as to the nature of the blockade and the limits of the privileges, to which no neutrals ought to be subjected. The inclination of the Privy Council was to consider that no blockade was valid against neutrals, however its terms might be notified, unless it undertook to make a complete exclusion of trade and communication of all kinds, through the blockade, by ingress or egress; but it would not render a blockade invalid,' to allow fixed periods of time, according to modern usage, for vessels in port, or destined to the port before the establishment of the blockade, to enter or come out, or to allow the passage of neutral vessels of war, or despatch-vessels, under neutral sovereign responsibility.] — D.

(a) The Columbia, Robinson's Adm. Rep. i. 154.

+ See note 233, ante, on Effective Blockades.]-D.

The Betsey, Robinson's Adm. Rep. i. 93.

Mercurius, Ibid. i. 83.

Jonge Petronella, Ibid. ii. 131. The Calypso, Ibid. 298.

the country lies at such a distance that the inhabitants cannot have this constant information, they may lawfully send their vessels conjecturally, upon the expectation of finding the blockade broken up, after it has existed for a considerable time. In this case, the party has a right to make a fair inquiry whether the blockade be determined or not, and consequently cannot be involved in the penalties affixed to a violation of it, unless, upon such inquiry, he receives notice of the existence of the blockade. (d)

sumed

§ 515. "There are," says Sir W. Scott, "two sorts of Constructblockade: one by the simple fact only, the other by noti-ive or prefication accompanied with the fact. In the former case, knowledge. when the fact ceases otherwise than by accident, or the shifting of the wind, there is immediately an end of the blockade; but where the fact is accompanied by a public notification from the government of a belligerent country to neutral governments, I apprehend, primâ facie, the blockade must be supposed to exist till it has been publicly repealed. It is the duty, undoubtedly, of a belligerent country, which has made the notification of blockade, to notify in the same way, and immediately, the discontinuance of it; to suffer the fact to cease, and to apply the notification again at a distant time, would be a fraud on neutral nations, and a conduct which we are not to suppose that any country would pursue. I do not say that a blockade of this sort may not, in any case, expire de facto; but I say that such a conduct is not hastily to be presumed against any nation; and, therefore, till such a case is clearly made out, I shall hold that a blockade by notification is, prima facie, to be presumed to continue till the notification is revoked." (a) And in another case, he says:-"The effect of a notification to any foreign government would clearly be to include all the individuals of that nation; it would be nugatory, if individuals were allowed to plead their ignorance of it; it is the duty of foreign governments to communicate the information to their subjects, whose interests they are bound to protect. I shall hold, therefore, that a neutral master can never be heard to aver against a notification of blockade that he is ignorant of it. If he is really ignorant of it, it may be subject of representation to his own government, and may raise a claim of compensation from them, but it (d) The Betsey, Robinson's Adm. Rep. i. 332.

(a) The Neptunus, Ibid. i. 171.