this measure, the British Government continued to be animated by friendly sentiments towards the Emperor of Brazil.

Ibid.

In February, 1879, the coast of Bolivia, then in alliance with Peru, was blockaded by Chili, as a pretended pacific measure of redress, war not being declared until the succeeding April.

In 1880 something very much like a blockade was instituted by the appearance at the port of Dulcigno of a fleet of British, German, French, Austrian, Russian, and Italian men-of-war, the avowed object being to compel the Turkish Government to execute the treaty which conceded this town to Montenegro. This was declared to be nothing more than a "naval demonstration," intended to overawe the Sultan, who was asked by the six powers to join in this "demonstration" by withdrawing his forces from the town. But it was announced that if the town was not given up it would be blockaded.

Yet, notwithstanding these precedents, the weight of authority is that while as a war measure a blockade when effectual will be internationally respected, this will not be the case with a blockade instituted as part of a system of pacific pressure. As is declared by Hautefeuille (ii, 264), while treaty stipulations as to blockades are numerous, they all of them imply a war between one of the contracting parties with a third power, in which war the other contracting party is neutral. The declaration, also, of April 16, 1856, which was signed by all the powers except the United States, Spain, and Mexico, proscribes, in equally formal terms, blockades instituted in peace. This expression of opinion is all the more effective from the fact that it is not an assertion of a principle that is new, but rather a recognition of a principle that is established. The Institut de droit international, also, at its meeting at The Hague, in 1874, resolved by a large majority that pacific blockades were not legitimate methods of international pressure. (Revue de droit int., 1875, 609.) But this action was not unanimous, nor are publicists and statesmen in general accord when treating of this important question. "Nous nous sommes trouvés là dans une situation très difficile, nous faisions un blocus, ce qui n'est pas la guerre complète, la guerre déclarée." (Discours de M. Guizot, Feb. 8, 1841, cited by Fauchille, 48.) A pacific blockade is declared by Rolin-Jac quemyns, a very high authority, to be an intermediate state between peace and war. (Revue de droit int., 1876, 165.)

See Deane, Law of Blockade, 45-48. Holtz. Ency., i, 807.

Mr. Lawrence cites Hautefeuille, Droits des Nations Neutres (tom. ii, 274, 2me ed.), as stating that "the war of France with Mexico, which terminated by a treaty of peace in 1839, was preceded by two years of blockade. In the last case, a question, which it was agreed to refer to the arbitration of a third power, arose, on the conclusion of peace, whether the vessels sequestered during the blockade, and before the declaration of war by Mexico, should be restored. However the point, whether a blockade is to be deemed a pacific remedy, may be settled, as regards the parties immediately concerned, it cannot be sustained as to neutrals, otherwise than as a belligerent measure. From the right of conquest exercised over the territorial sea arises the right of blockade, which is the right of jurisdiction accorded by the primitive law to the territorial sovereign; a right by virtue of which he excludes all foreigners from passing through his dominions, and

the immediate consequence of which is to cut off the place surrounded by the conquered territory from all communication with the foreigners beyond it. The duty of these foreigners, of these neutrals, is to respect the law of the territorial sovereignty; they cannot enter his dominions without his consent, without being exposed to the application of the laws which they violate. A blockade is, then, an act of war. It is the result of a previous act, which can only take place during war, the complete conquest and continued possession of a part of the enemy's territory. (Ibid., tom. iii, 10, 182.")

Lawrence's Wheaton (ed. 18663), 845.

Fiore (Droit int., 2d ed., 1885, trans. by Antoine), § 1231, while maintaining that pacific blockades are not inconsistent with the settled principles of international law, holds that they are virtually reprisals, and are subject to the rules governing reprisals as well as those governing blockades. He insists, however, that such a pacific blockade does not affect third powers. But this distinction is properly rejected in a note by the translator. A blockade merely binding the blockading and blockaded powers would be illusory.

IV. DUTY OF NEUTRAL AS TO BLOCKADE-RUNNING.

§ 365.

During the late civil war large interests in England were concerned in movements for breaking the blockade in the Southern ports. The profits were enormous, and vast sums of money were spent, and great skill and energy employed in taking advantage of the opportunity. Nassau, a port ordinarily without business, became the center of a large and active trade, and teemed with adventurers, speculators, and sailors engaged in fitting out and manning vessels to run into the blockaded ports. Many of these vessels were built in England and Scotland for this very end; large, deep, swift, painted in such a way as not to catch the eye, capable of carrying large freight, and manned with bold and skillful navigators. The Government of the United States addressed to the British Government protests against this system, organized and carried on in and through British ports and with British capital. But Earl Russell, in a letter of May 10, 1862, declared that fitting out vessels of this class was not in contravention either of British municipal law or of the law of nations. He likened the case in this respect to that of exportations of munitions of war, the exportation of which no state is required by international law to prohibit. A blockade-runner, it is true, if proved to be such, can be seized with its cargo and confiscated, but the remedy is to be limited to this seizure. (Arch. Dipl., 1862, iv, 100) This position was elaborately sustained by Mountague Bernard in his treatise on British neutrality, ch. xii. By Rolin-Jacquemyns (Revue de droit international for 1871, 127-129), the position is accepted with some modifications, and only in subordination to the general rule that to impose on a neutral the duty of stopping the building and sailing of blockade-runners would impose a new and onerous burden on neutrals, and give an undue advantage to belligerency over neutrality. (See Fauchille, Blocus Maritime, Paris, 1882, 391. The subject is more fully examined infra, §§ 402 ff. See also Whart. on Contracts, § 479.)

"The carrying on trade with a blockaded port is not a breach of municipal law nor illegal, so as to prevent a court of the loci contractus from enforcing the contract of which the trade is the subject. A neutral state is not bound by the law of nations to impede or diminish its own trade by municipal restrictions. A neutral merchant may ship goods prohibited jure belli, and they may be rightfully seized and condemned. It is one of the cases where two conflicting rights' exist which either party may exercise without charging the other with doing wrong. As the transportation is not prohibited by the laws of the neutral sovereign, his subjects may lawfully be concerned in it, and as the right of war lawfully authorizes a belligerent power to seize and condemn the goods, he may lawfully do it. Whatever is not prohibited by the positive law of a country is lawful. Although the law of nations is part of the municipal law of England, and it may be said that by that law contraband trade is prohibited, to neutrals, and consequently unlawful, yet the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers. (The Helen, 35 Law J. (N. S.), Adm., 2; compare with it the Santissima Trinidad, 7 Wheat., 283; Richardson v. Marine Insurance Co., 6 Mass., 113; Seton and others v. Low, 1 Johns. Ex parte Chavasse, 34 Law J. (N. S.), Chanc., 17.)"

2 Halleck's Int. Law (Baker's ed.), 176. See infra, § 375.

410

CHAPTER XIX.

CONTRABAND.

I. MUNITIONS OF WAR CONTRABAND, § 368.

II. AND WHATEVER IS ESSENTIAL TO BELLIGERENT SUPPORT.

(1) As to coal, § 369.

(2) As to provisions, § 370.

(3) As to money, § 371.

(4) As to horses, § 372.

(5) As to merchandise, § 373.

(6) As to soldiers, § 373a.

III. HOW FAR DISPATCHES AND DIPLOMATIC AGENTS ARE CONTRABAND, § 374. IV. PENALTIES ON CONTRABAND.

May be seized on high seas, § 375.

I. MUNITIONS OF WAR CONTRABAND.

§ 368.

By the armed neutrality" entered into during the American Revolutionary War by Russia, Denmark, and Sweden in 1780, "being the three northern powers from whose dominions chiefly the other maritime nations of Europe received supplies of timber and other naval stores," the effort was made "to strike these from the list of contraband, or by some means to exempt them from capture." It was understood, however, at the time, that this was an exception from the law of nations. By this law "timber and other articles for the equipment of ships are contraband of war." Hence the recital of this principle in Jay's treaty ought to give no just cause of offense to France.

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. MSS. Inst., Ministers.

"If the circumstance, and the cargo and its destination, show unequivocally that its application must be to military purposes, materials fit for both peace and war may assume the character of contraband, but if those circumstances afford solid ground for the opinion that the suspected materials are designed only for the ordinary purposes of the nation then there can be no just motive for interrupting a commerce which ought to be pronounced lawful.

"This principle would seem to mark the boundaries of the conflicting rights of neutral and belligerent powers; for neutrals have a right to

carry on their usual commerce, and belligerents have a right to prevent them from supplying the enemy with instruments of war.

"In the catalogue of contraband agreed on between the United States and Great Britain there is one description which leaves to construction what specific articles it may comprehend. It is in the following words: 'and generally whatever may serve directly to the equipment of vessels.'

"In construing this question the British courts of vice-admiralty ap pear to consider it as including whatever might, by any possibility, be applied to the equipment of vessels. Although the article be in itself unfit and improper for that use, and therefore be not in commou so applied, yet if it might by possibility, from a want of other proper materials, admit of such an application, the courts adjudge, although such other materials be not wanting at the port of destination, that it is contraband of war.

"This construction we deem alike unfriendly and unjust. We conceive that the expression which has been cited comprehends only such articles as in themselves are proper for, and in their ordinary use are applied to, the equipment of vessels.

"Under the British construction all operation is referred to the word 'directly. Expunge it from the sentence and according to them the sense will remain the same. But plain reason and the soundest and most universally admitted rules of construction forbid us to interpret by garbling a compact. The word 'directly' is an important word, which forms a necessary and essential part of the description, and must have been inserted for the purpose of having its due weight in ascer taining the sense of the article. We can discover no effect which is allowed to it unless it be admitted to limit the description to materials which, in their ordinary use and common application, are in considerable quantities proper for, or serve directly to, the equipment of vessels.' To exclude it, or to construe the article as if it was excluded, is to substitute another agreement for that of the parties.

6

"We do not admit the expression we are considering to be in itself doubtful. But if it was so, rules of construction prescribed by reason and adopted by consent seem to us to reject the interpretation of the British courts.

"As this contract is formed between a belligerent and neutral nation, it must have been designed to secure the rights of each, and consequently to protect that commerce which neutrals may lawfully carry on, as well as to authorize the seizure of articles which they may not lawfully carry to the enemy. But under the interpretation complained of, not only articles of doubtful use with respect to the equipment of vessels, but such as are not proper for that purpose, or, if proper, only in very small quantities, and which, therefore, are not in common so applied, are, because they may by mere possibility admit of that application,