it were fortified; but the law of nations knows no such limitation.1

Why is a breach of

blockade unlawful.

There is a general agreement that it is unlawful for a neutral vessel knowingly to attempt to break a blockade, whether by issuing from or entering the blockaded place. Such an act, especially of ingress, tends to aid one of the belligerents in the most direct manner against the designs of the other, and is therefore a great departure from the line of neutrality. And a similar act on land would involve the loss of the most innocent articles intended for a besieged town. M. Ortolan places the obligation to respect a blockade on the ground that there is an actual substitution of sovereignty, that is, that one belligerent has possession by occupancy of the waters of the other. But this is a formal way of defending the right of blockade, and may be found fault with, perhaps, for the reason that sovereignty over water along a coast is merely an incident to sovereignty on the adjoining land, which the blockader has not yet acquired. The true ground of the right is simply this, that the belligerent has a right to carry on a siege; and that his act of commencing such a siege places neutrals under an obligation not to interfere with his plans. If the sea were a common pathway to the very coast this right would still subsist.

Blockades may be considered in regard to their objective validity, to the evidence which the neutral ought to have of the fact, or their subjective validity, to the conduct which constitutes a breach of blockade and its penalties, and to the bistory of attempts to stretch the notion of blockade beyond the limits prescribed by international law.

A valid or lawful blockade requires the actual presence of a sufficient force of the enemy's vessels before a cerlid block- tain place on the coast. By presence is intended general presence, or presence so far as the elements

1. What is a

t.de?

1 By Lucchesi-Palli, p. 180 of the French translation of the Italian work, cited by Ortolan, ii., 299.

2 A neutral ship, overtaken while in port by a blockade, is generally allowed, if loaded and ready to sail, to go out with her cargo, or if not loaded, to go out in Lallast.

do not interfere, so that the dispersion for a time of the blockading squadron by a storm is not held to amount to its being broken up. For this there must be abandonment of the undertaking. What a sufficient force is, cannot be determined with logical rigor. It may be said to be such a force as will involve a vessel attempting to pass the line of blockade in considerable danger of being taken.

Treaties have sometimes determined the amount of force necessary to make a blockade valid. Thus, a treaty of 1742 between France and Denmark declares that the entry of a port to be blockaded must be closed by at least two vessels, or by a battery of cannons placed on the coast, in such sort that vessels cannot get in without manifest danger. A treaty of 1753 between Holland and the Two Sicilies requires the presence of at least six vessels of war, at the distance of a little more than cannon-shot from the place, or the existence of batteries raised on the coast, such that entrance cannot be effected without passing under the besieger's guns. A treaty of 1818 between Russia and Denmark repeats in substance the provisions of the first named treaty.

cabinet

blockades

It results from this, that all paper or cabinet blockades, whether declarations of an intention to blockade a Paper or place without sending an adequate force thither, or the mere formality of pronouncing a tract of coast unlawful under blockade, are an undue stretch of belligerent right, and of no validity whatever. Such grievous offenses against the rights of neutrals have come, it is to be hoped, to a perpetual end, since the nations which offended most signally in this respect were parties to the declaration accompanying the peace of Paris (April 16, 1856), that "blockades in order to be binding, must be effectual, that is to say, maintained by a force sufficient in reality to prevent access to the coast of the enemy." ($190.)

A question arises here in regard to the meaning of the words (in the original of the declaration) "effectifs" and "une force suffisante pour interdire réelment l'accés," etc. Dr. Lushington remarked that the maintenance of a blockade

-

must always be a question of degree, of the degree of danger of ships going into or leaving a blockaded port. No force could bar the entrance to an absolute certainty; vessels may get in or get out during the night or fogs or violent winds, or occasional absence; it is most difficult to judge from numbers alone. And he adds that in no case a blockade was held to be void when the blockading force was on or near the place of entry or exit. This opinion was given before the declaration of 1856. Should "effective" have any more stringent meaning now. Probably all would concur in the opinion that the constant presence of a squadron except when gales rendered its position dangerous, constant danger of attempts to make an unlawful entrance or exit, and such a nearness of blockading vessels to one another as would render the capture or destruction of vessels seeking to escape from a port highly probable in the judgment of the commanding officer, are some of the safest criteria. The opinion, then, as to the effectiveness of a blockade has not much changed since 1856.

2. Evidence of the existence of a blockade.

§ 203.

As a blockade arises from some positive act and not from a mere intention, as it is a temporary, and, it may be, an often-repeated measure, and as a neutral is, in general, innocent in endeavoring to enter any port in his friend's territory, it is manifest that in order to become guilty, he must have had the means of obtaining due notice of the new state of things which a blockade has occasioned. The best notice is, when a vessel, approaching a port, or What is due attempting to enter it, is warned off by a ship pertaining to the blockading squadron. In many special treaties this is required. In that of 1794, between Great Britain and the United States, it is provided, that whereas vessels frequently "sail for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place; 1 Comp. Twiss, Law of Nations in War, ed. 2., 199.

notice?

but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter." Similar stipulations exist in treaties between France and the governments of Spanish America.1

Justice to neutrals requires that their ships should not be subject to the risk and delays of a voyage to a port, where they may be debarred admission. The universal practice, is, therefore, to communicate the news of a blockade to neutral governments, upon whom lies the responsibility of making it known to those who are engaged in commerce. And if such notice be given, similar notice must be given of the discontinuance of a blockade, as far as possible. For a wrong is done to neutrals, if they are left to find out as they can that a blockade is terminated, since a long time may elapse before it will be considered safe to return to the old channel of commerce.

There is a difference of practice in regard to the amount of notification which neutrals may claim. The French hold, for the most part, that both a notice from the government of the belligerent, and notice from a blockading vessel, at or near the port, are necessary, so that a vessel will not incur guilt by coming to a port in order to ascertain whether a blockade, made known in the diplomatic way, is still kept up. The English authorities make two kinds of blockade, one a blockade de facto, which begins and ends with the fact, and which will involve no vessel attempting to enter a harbor in guilt, unless previously warned off; and the other a blockade, by notification, accompanied by the fact. In the latter case, the presumption is that the blockade continues until notice to the contrary is given by the blockading government. Hence ignorance of the existence of the blockade cannot ordinarily be plead as an excuse for visiting the blockaded port, but the voyage itself is evidence of an intention to do an unlawful act. This seems to be quite reasonable: notice to the neutral state must be regarded as notice to all shippers who are its subjects,

1 Wheaton, Elements, iv., 3, § 28, p. 544; Ortolan, ii., 305 seq. — Treaties of France with Brazil (1828), Bolivia (1834), Texas (1839), Venezuela (1843), Ecuador (1848), and others more recent, contain such provisions.

and if the rule of evidence presses hard in a few cases, the blockading government is not in fault. But the notice must be given to all neutral powers in order to reach their subjects: general notoriety, as by news travelling from one country to another, is not sufficient notice.1

Equity requires that the neutral should have had time to receive notice of a blockade. Hence, a ship from a distance, as from across the Atlantic, may attempt to enter a port actually invested, without exposing itself to penalties.

It cannot be said in justice, that a shrewd suspicion of a blockade is enough to make a vessel guilty in sailing for a certain port, for a known or a knowable fact must precede guilt. On the other hand, a fair possibility derived from the expectation of peace, or from other sources, that a blockade is raised, may justify a vessel in sailing contingently for the port in question with the intention of inquiring at the proper place into the fact.

3. When is a blockade discontinued?

A blockade ceases, whenever the vessels which constitute it are withdrawn, whether with or without compulsion from the enemy, so that the undertaking is for the time, at least, abandoned. If the vessels return after leaving their stations, the commencement of a new blockade requires the same notification as before. Common fame in regard to the breaking up of a blockade will justify a nentral in sailing for the blockaded port, although, as we have seen, it is not sufficient notice to him: he ought to have more evidence of an interference with the normal state of things than he needs to have of a return to it.

English practice as to notifica

§ 204.

All the modern French writers on the rights of neutrals French and upon the sea, except Hautefeuille, hold that the two kinds of notice, that from the government and that from the blockading squadron, are necessary. (Or tolan, ii., 305 et seq., ed. 2; Cauchy, ii., 421; Pistoye et Duverdy, i., 372.) Hautefeuille regards the special notifi1 Comp. Wheaton, iv., 3, § 28; Phillimore, iii., 385; Ortolan, ii., 301 et seq.

tion continued.