tive to methods of determining a vessel's knowledge of a blockade and the modes of informing her of an existing circumvallation; and provisions in other Articles. Article I provides that A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy. No adjudicated case hangs on the point regarding a blockade of a port or coast occupied by the enemy, probably because of the well recognized ability of a belligerent to treat such occupied territory. as enemy country. In several American cases this was not even called in question. In United States v. Rice (U. S. Sup. Ct., 1819, 4 Wheaton, 246, Scott's Cas. 655), and in United States v. Hayward (1815, 2 Gall. 485, Scott's Cas. 657), Justice Story held that Castine, Me., was British territory while occupied by military forces during the war of 1812. "By the surrender," he says, in the first case, "the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws *** as it chose to recognize and impose." In the second case it was held that Castine was to be considered a "foreign port" with reference to the nonimportation acts. A case arose as a result of the Spanish-American War in which a vessel sought to make port in Cuba. The Adula (176 U. S. 361, Scott's Cas. 826) was condemned as prize of war by the District Court after being captured in the attempt to reach Guantanamo, Cuba, and the decree of the lower judicial body was affirmed by the Supreme Court. A proclamation issued by the President June 27, 1898, established a blockade of all ports on the southern coast of Cuba between Cape Frances on the west and Cape Cruz on the east. Santiago and Guantanamo are to the eastward of Cape Cruz. Admiral Sampson, however, on June 7, as commander of the naval forces, had ordered the investment of the ports of southern Cuba, and this investment was maintained as an effective blockade. The Adula was chartered by a Spanish subject, one Solis, from the Atlas Steamship Company, a British corporation, to bring refugees from Guantanamo, Santiago or Manzanillo, the voyage being primarily Both a commercial one for personal profit. She sailed near the end of June from Kingston, Jamaica, and was overhauled by the Vixen. The American warships controlled Guantanamo Bay, from which the city is twenty-five miles distant. While it seems to have been accepted by the court that the city itself was still in the hands of the Spanish, it was contended by the defendants that the port was in the possession of the Americans. Justice Brown lays no stress on this contention in his decision, evidently being of the opinion that the blockading, or occupying, Americans which they were had in either event a perfect right to treat as hostile a vessel which was attempting to do a thing they conceived to be prejudicial to their interests. It may be added that the text writers of Europe almost unanimously accept the opinion that neutral ports occupied by the enemy are subject to blockade. The fourth dictum of the Declaration of Paris, which is reaffirmed in Article 2, is too generally accepted to require any lengthy citations to demonstrate that it is law. It may be mentioned, however, that though the United States has never adhered to the Declaration officially, the maxim was cited as authoritative by Chief Justice Fuller in his decision in the case of the Olinde Rodrigues (1898) (174 U. S. 510, Scott's Cas. 835); and that the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492, read: "A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous." The Declaration of Paris reads to prevent access to the enemy coastline." We submit that the American phrasing might have well been embodied into the Declaration of London, referring to coastline instead of to a port. 66 That the question whether a blockade is effective is a question of fact is also a legal truism. One has only to refer to the decisions of Sir William Scott in the High Court of Admiralty (1 and 2 C. Robinson) and of the Right Hon. T. Pemberton Leigh (10 and 12 Moore's Privy Council) to see that the de facto blockade is well recognized in law. In fact, the phrase has lately fallen into disuse on account of the disposition to consider the one sort only; that is, those properly maintained. American and British jurists have also recognized a blockade de facto, as one in which notification was not given. This tenet has been disputed on the Continent and Article 3 is a very satisfactory reconciliation of the two theories. The effect of bad weather on a blockading force has long been acknowledged not to terminate the circumvallation. Article 4 has the sanction of British and American jurisprudence, though European opinions will have to be modified to a small extent. Dr. Lushington in the High Court of Admiralty in 1865 (The Helen, 1 L. R. 1 Ad. and Ecc. 1, Scott's Cas. 823), says: "The blockade must and (save accidental interruption by weather) be constantly enforced." Chief Justice Fuller in the Olinde Rodrigues quotes approvingly Sir William Scott in The Hoffnung (6 C. Rob. 112, 117): When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months without being liable to such temporary interruption. The London conferees have satisfied themselves with stating simply that interruptions by stress of weather do not raise a blockade. They have by this phrasing steered clear of the extreme theory that a vessel making the closed port during this period of respite violates the blockade. This theory, according to Bonfils (§ 1645), is held by the courts of admiralty of Great Britain, Denmark and the United States. Besides the English writers Phillimore and Travers-Twiss, Bello, Brocher, Fiore and Kent subscribe to it. Ortolan, on the other hand, considers that weather exigencies suspend the blockade, while Bulmerineq and Halleck believe they operate to lengthen the duration of the investment. France's learned text-writer evidently misunderstood the attitude. of the Anglo-Saxon jurists, for Sir William Scott in the passage cited above continues (6 C. Rob. 117): But when a squadron is driven off by superior force, a new course of events arise, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed. We submit that the point here made does not argue for a continuance of the blockade during the absence of the force from stress of weather so much as it does suggest that a neutral during such time acts at his own risk. It is well to note also that the enforced raising of a blockade is not mentioned in the chapter of the Declaration under review. "A blockade must be applied impartially to the ships of all nations" reads Article 5, expressing an opinion upon which a minor point of the Franciska (1855) (10 Moore's Privy Council, 37, Scott's Cas. 804) depended. This vessel was ordered restored without costs to either party on appeal from a decree of condemnation. The circumstances were as follows: The commander of the Baltic fleet on April 5, 1854, blockaded the coast of Courland, but his notice to the British ministers conveyed the impression that all Russia's ports on the Baltic were blockaded. The British Government on that date issued an Order-in-Council giving Russian ships up to May 15 to discharge their cargoes from Russian ports in the Baltic and White Seas to their port of destination. A similar permission was granted by the French Government. The Russian authorities granted a like indulgence to British and French ships. On May 14, 1854, the Franciska, a neutral vessel, under Danish colors, sailed from Copenhagen to Riga and was captured off Riga by an English ship of war on May 23 for a breach of blockade of that port. The Right Hon. T. Pemberton Leigh in his decision, referring to relaxation of a blockade, quotes Grotius (De Jure Belli ac Pacis, lib. III, c. I, s. V.), Bynkershoek (Quae. Jur. Pub., lib. I, c. II) and Vattel, all of whom agree with the latter who says (B. III, c. VII, s. 1, 17): . Quand je tiens une place assiégée, ou seulement bloquée, je suis en droit d'empêcher que personne n'y entre, et de traiter en ennemi quiconque entrepend d'y entrer, sans ma permission, ou d'y porter quoi que ce soit: car il s'oppose à mon enterprise, il peut contribuer à la faire échouer, et par la me faire tomber dans tous les maux d'une guerre malheureuse. The prohibition is, of course, to secure absolute non-communication, which as Travers-Twise remarks (II, 120) would not be obtained if a belligerent permitted its own ships to trade with the blockaded port. Compare also the Frederick Molke (1 Rob. 87), the Betsey (1 Rob. 93), the Vrouw Judith (1 Rob. 151), the Rolla (6 Rob. 372), the Success (1 Dods. 134). It was this particular point that was contested in the War of 1812 when Great Britain proclaimed a paper blockade interdicting all neutral commerce but letting her own vessels enjoy the right of trade with the United States to the detriment of the neutrals themselves. Article 6 i stipulating that "the commander of a blockading force may give permission to a warship to enter, and subsequently to leave a blockaded port" tends to avoid misunderstanding of a character illustrated in the schooner Exchange v. McFaddon et al. (7 Cranch 116; Scott's Cas. 208). Obviously the article refers to the warships of neutral powers and a waiving of jurisdiction over public warships by a non-belligerent is a well known principle. A public armed ship, says Chief Justice Marshall in the case involving the Exchange, constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing these objects from being defeated by the interference of a foreign state Such interference can not take place without affecting his power and dignity. The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality.3 * * * At first glance the reference seems not to be applicable, but that is due only to the habitual attitude of considering, in the case of war, all states as divided simply into belligerents and neutrals. That division is perfectly proper from the point of view of those concerned in the conflict, which is the position one normally occupies when dealing with questions of war; but another division exists as clearly. Only in certain circumstances are states to be considered as neutrals and belligerents. Say, for instance, A and B are at war. Then C, D and E are neutrals in respect to the conflict, in relation to A and B together, as it might be put. But C is a friend of A and likewise at peace with B, with which A is at war. 3 See JOURNAL, 3:235. In the same |