« EdellinenJatka »
tions whose interests were opposed to the affirmance of such a right. In 1780, the emperor of Russia proclaimed the principles of what was called
“the Baltic code of neutrality,” to be maintained The armed by force of arms. One of the articles of this code neutrality.
was, that all effects belonging to the subjects of belligerent powers should be considered free on board of neutral ships, except only such as were contraband. Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, Naples and the United States acceded to the Russian principle of neutrality; but it was persistently and successfully opposed by Great Britain, and was abandoned in 1793, In 1801 another attempt was made by the Baltic powers to procure the adoption of the doctrines of armed neutrality, as set forth in 1780; but again it was defeated by Great Britain, and in June, 1801, a treaty was concluded between Great Britain and Russia, in which it was agreed that enemy's property was not to be protected on board of neutral ships. The whole subject is discussed with much ability by Mr. Wheaton in his excellent elementary treatise.
The conventional law upon the subject has undergone continual fluctuation, according to the varying interests and policy of maritime nations. In mod. ern times, however, the preponderance of treaty stipulations is in favor of the maxim, free ships, free goods, sometimes, but not always, connected
with the converse maxim, enemy ships, enemy goods. Doctrine of the During the war of 1812 between the United United States upon the sub- States and Great Britain, the prize courts of the
Wheaton's Elements of International Law, 162, 183.
former nation with great uniformity enforced the ject of free
1. ships free principle of international law, that enemy's goods goods. in neutral vessels are liable to capture and confiscation, except as to such powers with whom and the United States government, treaty stipulations existed agreeing to a different rule.
While neutral powers, by the law of nations, are Blockade and allowed to trade with the belligerents, in innocent merchandise, they are nevertheless prohibited from entering or attempting to enter for that purpose ports and places that are blockaded, and with which by virtue of the blockade, all commerce is interdicted. It is therefore of the highest importance to consider what is the character and true definition of blockade as established by the law of nations.
Blockade has been defined to be, the carrying into effect by an armed force, of that rule of war which renders commercial intercourse, with the particular port or place subjected to such force, unlawful on the part of neutrals. There is no belligerent right more conclusively The belliger
ent right of established in the law of nations, and certainly blockade. none more necessary or important in its application, than the right of blockade, as it has been defined, determined and practically executed in modern times. The right derives its origin from the highest and purest sources of maritimne jurisprudence, is sanctioned by the practice of the most enlightened nations, and is justly regarded as one of the great bulwarks of a nation's security and independence.
However clear and indisputable may be the right of blockade, and however just and necessary may
be the exercise of the right, it must, nevertheless, be conceded to be one of the harshest measures in
its operation of any known in the code of internaRequisites to tional law. It is for this reason, that, by the unithe lawful validity of block- form practice of the tribunals of all nations, upon
whom the duty devolves of giving effect to its provisions, certain requisites have been required to be established, in order to impart to the exercise of the right, its full force and validity. These re quisites are deemed so indispensable to the legal existence of blockade, that the failure of either one of them has been uniformly considered to operate as an entire defeat of the measure, notwithstanding it may have been ordered and proclaimed by the supreme power of a nation.
These requisites are clearly stated by Lord Stowell to be—“ First, the existence of an actual blockade; Second, the knowledge of the party against whom proceedings are taken for its violation; and, Third, some act of violation, either by going in or coming out with a cargo laden after the commence
ment of the blockade."1 Actual block. It will be convenient to consider the subject of
blockade with reference to these three several prerequisites to its legality.
And first, the existence of an actual blockade.
The declaration of a blockade is an act of sovereignty which can emanate only from the supreme authority of a nation.'
The commander of a national vessel or the commodore of a squadron cannot order it, unless under such circumstances as to impel the presumption
'The Betsy, 1 Rob., 29, vide also The Nancy, 1 Acton, 59.
that he carries with him such a portion of the sovereign authority as may be essential to provide for such an exigency. But not only can no blockade exist as a legal fact which has not been declared by competent authority, but it must also have an actual physical existence. “The very notion of a complete blockade," says Lord Stowell, “includes that the besieging force can apply its power to every point of the blockaded state. If it cannot, then there is no blockade of that part where its power cannot be brought to bear."2
By this, it is not intended that the blockading force must be at all times present, if the absence be temporary and accidental, and its cause known (as by being blown off the coast by tempestuous weather), but that the presence of the sufficient force, barring such accidents, must be continuous, and if not so, by reason of remissness on the part of the cruisers stationed, to maintain it, it is considered as having no legal existence. “It is in vain,” says Lord Stowell, “ for governments to im. pose blockades if those employed on that service will not enforce them. The inconvenience is very great, and spreads far beyond the individual case. Reports are eagerly circulated that the blockade is raised, foreigners take advantage of the information, the property of innocent persons is ensnared, and the honor of our country is involved in the mistake. "4
'The Henrick and Maria, 1 Rob., 146; The Rolla, 5 Rob., 367.
· The Mercurius, 1 Rob., 80; The Stert, 4 Rob., 66, 1 Acton, 64.
* The Frederick Molke, 1 Rob., 86-93, 94, 147, 156, and 1 Acton, 59.
* The Juffrow Maria Schroeder, 3 Rob., 156, and note.
There is no limit to the right of a belligerent to blockade the ports of the enemy, but that which results from the deficiency of naval force. If a nation possess the power and resources, and will incur the hazard and expense, it possesses the right to blockade the entire coast of the enemy, upon the same principle which confers the right to blockade a single port, and is entitled thereby to the same exemption from neutral interference. Such a blockade is undoubtedly rendered more practicable and efficacious in modern times by reason of the vast improvements in the construction, and naviga
tion by steam, of ships of war. Knowledge of Not only must the blockade be ordered by the requisite. sovereign power of the nation, and be physically
actual and complete, but to be legally valid and effectual, so as to subject a neutral to the penalty consequent upon its violation, it is necessary that he should be sufficiently informed of its existence.
There are two modes by which information may be communicated either by formal notification by · the blockading power, or by the notoriety of the fact itself.
All that is requisite to the sufficiency of a notification, is that it be communicated in a credible manner. Any such communication, whether formal or not, being such as to leave no doubt of its authenticity, is obligatory upon the neutral; but the practice of nations in modern times has been to disseminate such intelligence to the world by proclamation, so distinctly expressed, as to leave no room for the defence of want of information. The
· Marshall on Ins., B. I., c. iii., $ 3; 1 Acton, 63.
sufficiently by which