CHAPTER III.

LAW OF BLOCKADE AND RIGHT OF SEARCH.

&c.

blockade.

WHEN a blockade has been established, and a suffi- Law of Blockade, cient legal notice of its existence has been given to neutrals, any vessel or cargo attempting to violate Violation of such blockade, is liable to seizure and confiscation.* This rule is, according to modern usage, subject to modification, neutral vessels in blockaded ports at the commencement of the blockade being allowed to leave with cargo bona fide purchased and shipped before the blockade was instituted.†

of

breaking the

Neutral vessels sailing in close proximity to block- Intention aded ports and places for the purpose of breaking the blockade. blockade, incur the risk of search, seizure, and subsequent condemnation, and the cargo is liable to confiscation unless it be proved that its destination was not to the blockaded port, and that it was taken there without the owner's wish or directions.‡

tion and search.

The right of visitation and search exists only in time Right of visitaof war, or when conceded by treaty, and if a vessel searched by a belligerent ship of war, is found to be carrying on contraband trade, or bearing enemy's despatches, she is liable to seizure and condemnation,

* Vrow Johanna, 2 Rob. Adm. Rep., 109; the Neptunus, 2 Rob. Adm. Rep., 110; the Calypso, 2 Rob. Adm. Rep., 298; the Mercurius, 1 Rob. Adm. Rep., 83. †The Potsdam, 4 Rob. Adm. Rep., 89.

The Columbia, 1 Rob. Adm. Rep., 154; the Betsey, 1 Rob. Adm. Rep., 332; the Neutralitat, 6 Rob. Adm. Rep., 30; the Jute Erwartung, 6 Rob. Adm. Rep., 182; the Adonis, 5 Rob. Adm. Rep., 256; the Hurtige Hane. Rob. 2 Adm. Rep., 124.

dc.

Law of Blockade, as are also neutral ships resisting the legitimate exercise of the right of search, even under convoy ;* but this does not apply to public ships of war, which have universally been exempted from visitation or search.

It is essential to the protection of neutral ships and their cargo that they be supplied with the necessary papers or credentials to establish their neutral character; and the absence, concealment, or destruction of a ship's papers, or the simulation of protective documents, justify capture.†

The penalty of blockade running is only coextensive with the voyage, as a ship can only be captured in delicto. The delictum also ceases when the blockade is raised.§ According to Kent, "a blockade must be "existing in point of fact; and in order to constitute "that existence, there must be a power present to "enforce it." ||

The generally accepted doctrine heretofore insisted on with reference to the maintenance of blockade, is that it should be strict and effectual, that the investing power must possess a squadron capable of enforcing the blockade, and of so far defeating every attempt to break it as to render it dangerous to enter the blockaded port, and that no blockade of any place can lay claim to recognition in the absence of a sufficient force to repel evasion, as it must be complete. Indeed Kent admits that "the Government of the United States has uni"formly insisted that the blockade should be effective

* The Maria, 1 Rob. Adm. Rep., 340 (359 et seq.).

The Two Brothers, 1 Rob. Adm. Rep., 131; the Rising Sun, 2 Rob. Adm. Rep., 104; the Carolina, 3 Rob. Adm. Rep., 75; the Nancy, 3 Rob. Adm. Rep., 123; Johanna Pholen, 6 Rob. Adm. Rep., 78, and Ebenezer, 252.

The Welvaart Van Pellaw, 2 Rob. Rep., 128; The Christiansberg, 6 Rob. Rep., 382, and note.

2 The Lisette, 6 Rob. Rep., 387.

Kent's Com., vol. i., p. 150.

The Betsey, 1 Rob. Adm. Rep., 94.

&c.

"by the presence of a competent force stationed and Law of Blockade, present at or near the entrance of the port, and

"they have protested with great energy against the

66

application of the right of seizure and confiscation to "ineffectual or fictitious blockades."*

ade by enemy, or remissness.

When the blockade is raised by an enemy, or is Raising of blockrendered abortive by the remissness of the blockading force, the ingress and egress of neutrals becomes once more free; and should the blockade be resumed, they are entitled to a fresh notice before the ordinary consequences of the breach of the blockade attach to them.†

storm or tem

The accidental absence of the blockading squadron Suspension by from the unavoidable effects of storm or tempest, is not pest. deemed to constitute a suspension of the blockade if re-established with all possible despatch.‡

ade.

As already shown, from the admission of their own Efficacy of block great authority on international law, the American Government has most strenuously upheld the doctrine of strict blockade as essential to its validity; yet the ineffectual character of the blockade which it is at present affecting to maintain, is so notorious, that, according to their own doctrine, it is not entitled to that respect which, during the existing war with the Southern States, England and other European powers have liberally accorded to it. Acquiescence in this relaxation of the principle heretofore so strongly insisted Relaxation upon, may not only go far, in case of need, to confirm the right of other nations to insist on similar treatment, but it furnishes a practical answer to the complaints against the Western powers in which America so freely indulges. The inadequacy of their present blockade of

*Kent's Com., vol. i., p. 151.

†The Hoffnung, 6 Rob. Adm. Rep., 112.

The Juffrow Maria Schroeder, 3 Rob. Adm. Rep., 155; the Hoffnung,

6 Rob. Adm. Rep., 116, 117.

practice.

of

C

&c.

Forbearance

Western powers.

Law of Blockade, the Confederate States can scarcely be questioned whilst every week brings well authenticated tidings of its successful evasion by neutral ships, affording ample grounds, according to the generally accepted doctrine before referred to, for the repudiation of such an interference of with the commerce of the world. Stronger evidence of the forbearance of this country cannot well be afforded than its passive acquiescence in such a state of things, whilst as an inseparable consequence an important branch of our national industry has been paralyzed, thousands of our once thriving population reduced to absolute beggary, and the national benevolence taxed to an almost fabulous extent to ameliorate their sufferings. The acknowledged policy of the governments of this country and of our imperial ally being peace, so long as it is consistent with national honour and justice to the subjects of the neutral powers, the patient endurance of the manifest injury to which they have been subjected by the blockade of the Southern ports, speaks volumes for the loyalty of the people of both nations, and the confidence Energy of Bri- they repose in the executive. The wonderful energy, however, of these great commercial communities in supplementing the failure of one market, or one class of commodities, through other fields of mercantile enterprise, has no doubt done much towards repressing any importunate clamour for such interference as would again open the cotton ports of the Southern States to the labour market of the manufacturing districts of England and France; and there can be little doubt that the beneficial results of the treaty of commerce between these countries, have opportunely tended to promote the mercantile prosperity of both during this crisis.

tish & French commerce.

CHAPTER IV.

CONTRABAND OF WAR.

War.

of

Incertitude ofde

finitions of con

traband.

PERHAPS there is nothing more difficult than to lay Contraband down a settled rule to distinguish between what does and what does not constitute contraband of war, because the character of ships and merchandise in this respect changes with ever-varying circumstances, such as the object of the voyage and the destination of the ships taken in connection with the nature of the goods. Thus when guns, gunpowder, swords, and bayonets, are bona fide consigned from one neutral port to another, they are no more contraband of war than would be a cargo of guano; whilst a ship-load of wheat, or even of paving stones, bound for and seeking entry into a belligerent port might, with evidence of intention to succour the enemy, be deemed prize of war, since the one might be intended to feed the enemy, and the other to repair his fortresses.

as to contraband.

Neutrals are naturally anxious to diminish the list Opposing policy of contraband, that they may extend their commerce by conveying the goods of the hostile powers, with the less risk of confiscation. Belligerents, on the other hand, are of course interested, particularly if they possess a predominating command of the seas, in increasing the prohibitory list, to enable them the more effectually to deprive the adversary of the means of maintaining or improving his warlike position.