and judges of the Vice-Admiralty Courts, not to consider any blockade of the French West India islands as existing, unless in respect to particular ports which were actually invested.

§ 8. But in the course pursued by the belligerents in the wars of the French revolution and empire, and in the British Orders in Council, and Napoleon's retaliatory decrees, an attempt was made by England and France to annul the wellestablished rule of blockades, and to close the ports and coasts of a whole State to neutral commerce, by simple proclamations, and without the slightest pretence of an actual blockading force. The United States constantly protested against this proceeding, and contended for the rule of international law as laid down by text-writers, that no port or coast could be regarded as blockaded without the actual presence of a sufficient force to prevent, or at least to render dangerous, any attempt of the neutral to enter. It is not necessary to here repeat the various discussions which grew out of these events, as the powers which then attempted to establish this new and absurd rule of international law have now entirely abandoned such pretensions.2

'De Cussy, Droit Maritime, liv. i. ch. vii. ; Wheaton, Hist. Law of Nations, pp. 138-143; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 28; Grotius, de fur. Bel. ac Pac., lib. iii. cap. i § 5; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. xi.; Hautefeuille, Des Nations Neutres, tit. ix. ch. v. § I.

The President of the United States, in time of war, has the power, by virtue of the constitutional authority conferred upon him as commander-in-chief of the army and navy, to institute and declare a blockade. -The Tropic Wind,' 14 Law Rep. N.S., 144.

The proclamation of the President of May 12, 1862, not only relaxed the blockade so far as to let in vessels duly licensed, but entirely raised the blockade of the ports therein named, as respected neutrals. The proviso respecting the licence was construed to be a regulation of trade with places in the military possession of the Government.-The 'Alma,' 15 Law Rep. N.S., 663.

2 In 1804 Napoleon issued directions, framed by himself, for the improvement of his fleet in Brest water. He began by complaining that the enemy should be permitted, with so few ships, to blockade so large a fleet as the one in the port. He ordered the ships to get under weigh every day, as well to exercise the crews as to harass the British, and favour the passage of the flotilla coming from Audierne; that 200 soldiers should be placed on board each ship of the line, and who, besides being exercised at the guns and about the rigging and sails, were to row in the ship's launch. Premiums were to be given to those who excelled in these matters; and nothing that could excite the emulation of either soldiers or sailors appears to have been overlooked. Every ship of the line was to be provided with a quantity of 36-pound shells for her lower battery, and

§ 9. At the commencement of the war between the Allies and Russia, in 1854, France and England declared their intention to maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's ports, harbours, or coasts.' This declaration was a virtual concession on the part of these powerful maritime nations of the illegality of constructive or paper blockades, for which they had formerly contended; but it was regarded as defective, in not further defining what should constitute an effective blockade, or an adequate blockading force. Moreover, the declaration was in form a mere temporary order, and not as a recognised and subsisting law of nations. But the declaration of the plenipotentiaries of France, Great Britain, Russia, Austria, Prussia, Sardinia and Turkey, on April 16, 1856, at the Conference of Paris, removed all doubt on this point, by announcing in the fourth proposition or principle, that 'Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. This proposition was approved by the United States, and has been adopted by the other nations of Europe. There is, therefore, very little danger of its ever again being disputed as an established principle of international jurisprudence.1

§ 10. Blockades are divided, by English and American publicists, into two kinds : 1. A simple or de facto blockade, and 2. A public or governmental blockade. This is by no means a mere nominal distinction, but one that leads to practical consequences of much importance. In cases of capture, the rules of evidence which are applicable to one kind of blockade, are entirely inapplicable to the other; and what a neutral vessel might lawfully do in case of a simple blockade, would be sufficient cause for condemnation in case of a governmental blockade. A simple or de facto blockade

the men were to be taught how to fire them off with effect. The captains were ordered not to quit their vessels to go on shore, and even the commander-in-chief was not allowed to lodge elsewhere than on board his ship.-Jas. Nav. Hist. vol. iii. p. 216.

Phillimore, On Int. Law, vol. iii., appendix, pp. 850, 851; Ortolan, Diplomatie de la Mer, tome ii., appendice spécial; Pistoye et Duverdy, Traité des Prises, tit. vi. ch. v. § 2; Heffter, Droit International, § 157; De Cussy, Précis Historique, ch. xii.

is constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts, it ceases when they terminate; its existence must, therefore, in all cases, be established by clear and decisive evidence. The burthen of proof is thrown upon the captors, and they are bound to show that there was an actual blockade at the time of the capture. If the blockading ships were absent from their stations at the time the alleged breach occurred, the captors must prove that it was accidental, and not such an absence as would dissolve the blockade. A public, or governmental blockade, is one where the investment is not only actually established, but where also a public notification of the fact is made to neutral powers by the government, or officers of State, declaring the blockade. Such notice to a neutral State is presumed to extend to all its subjects; and a blockade established by public edict is presumed to continue till a public notification of its expiration. Hence the burthen of proof is changed, and the captured party is now bound to repel the legal presumptions against him by unequivocal evidence. It would, probably, not be sufficient for the neutral claimant to prove that the blockading squadron was absent, and there was no actual investment at the time the alleged breach took place; he must also prove that it was not an accidental and temporary absence, occasioned by storms, but that it arose from causes which, by their necessary and legal operation, raised the blockade.1

§ II. Where the blockading squadron is driven away from its station by a superior force of the enemy, the interruption operates as a legal discontinuance of the blockade, and on its renewal, the same measures are necessary to bring it to the knowledge of neutrals, either by public declaration or by the notoriety of the fact, as were legally requisite when it was first established. It is, in effect, a new blockade, and not the continuance of the old one. The reason of this is obvious.

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 28; the 'Neptunus,' K., 1 Rob., 170; the 'Betsey,' 1 Rob., 331; the Christina Margaretha,' 6 Rob., 62; the 'Vrow Johanna,' 2 Rob., 109; Duer, On Insurance, vol. i. pp. 649, 650; Phillimore, On Int. Law, vol. iii. § 290; the Mercurius,' i Rob., 82; the Neptunus,' H., 2 Rob., 110; the 'Welvaart van Pillaw,' 2 Rob., 130; Ortolan, Diplomatie de la Mer, tome ii. ch. ix. ; Hautefeuille, Des Nations Neutres, tit. ix. ch. v. § 2.

The raising of the blockade by a superior force of the enemy effects a material change in the relative circumstances of the war, and a new course of events arises which may lead the government to make a very different disposition of its blockading force. It, therefore, introduces a new and different train of presumptions, in favour of the ordinary freedom of commercial intercourse.1

12. A blockade is dissolved by the removal of the blockading force for a different service, although the removal should be a temporary one. Even where only a portion of the force is ordered away, the legal effect is the same, unless the force that is left is competent, by itself, to maintain and enforce the blockade, by its ability to prevent all communications. But the blockade is not considered as raised where some of the passes of communications are left unguarded and open by the temporary absence of some of the ships in chasing suspicious vessels which had approached the blockaded port; for the service in which such ships are employed is a necessary part of the duty they are appointed to perform, and their absence is justly regarded as accidental, like that produced by stress of weather; they, however, are bound to resume their station with due diligence, as otherwise their prolonged absence would lead to the inference that they had been detached as cruisers, and the blockade be considered as Suspended.2

13. A blockade is also dissolved by repeated instances of an improper relaxation of the application of the blockading force to the purposes intended. The mere presence of an adequate force is not sufficient to constitute and maintain a blockade, but its application must be constant and uniform, to prevent all communication with the port it incloses. If, through motives of civility, or other considerations, it should

Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 28; the 'Triheten,' 6 R¤,65; the 'Hoffnung,' 6 Rob., 112; Williams v. Smith, 2 N. Y. R., 21.

The 'Nancy,' 1 Act. R., 57; the Eagle,' 1 Act. R., 68; Ortolan, Inp. de la Mer, tome ii. ch. ix.; Phillimore, On Int. Law, vol. iii. § 294; the Roila, 6 Rob., 372; the 'Fox' and others, 1 Edw. R., 321.

Every vessel of a blockading squadron is bound to do all in its power the service to be performed, and the law presumes that that obligation statuled unless the contrary be proved. The rule is different with respect to joint associations, or enterprises undertaken by privateers or Cusers owned by individuals.—The Anglia,' Blatchf. Pr. Cas., 566.

allow ships, not privileged by law, to enter or depart, the irregularity may be justly held to vitiate the blockade, as it necessarily tends to deceive other parties. Where some are suffered to pass, others will have a right to infer that the blockade is raised. To justify this presumption, however, there must be repeated instances of an improper relaxation, for one or two cases would hardly be deemed sufficient to warrant the belief that the legal restraint on neutral commerce had been wholly removed.1

§ 14. A legal blockade can only exist where its actual force can be applied; hence the legal effect of a maritime blockade, not accompanied by a military investment on land, applies only to a direct communication by sea, and to vessels sailing from, or immediately destined to, the blockaded port, and cannot be construed to prohibit the conveyance of articles, not contraband of war, to or from the blockaded port, by interior communications. A blockade can never be a complete investment of a place unless its force can be applied to every point by which a communication may be carried on. It is true that, by this construction, a maritime blockade is usually imperfect, as a complete investment, but this imperfection arises from the nature of the force applied; it is now universally conceded that the extent of legal pretensions of a blockade is unavoidably limited by the physical impossibility of applying ships to obstruct communications by land. The conveyance of goods through the mouth of a river under blockade, for the purpose of being shipped for exportation, is regarded as a breach of blockade, it being perfectly insignificant whether this was effected in large or small vessels. Thus, goods shipped in a river, having been previously sent in lighters along the coast from the blockaded port, with the ship under charter-party proceeding also from the blockaded port in ballast to take them on board, were held liable to confiscation.2

§ 15. It might be inferred, by parity of reasoning, that, when a port is under a military siege, neutral commerce might still

1 Duer, On Insurance, vol. i. p. 654; Jacobsen, Seerecht, p. 683. 2 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 28; the 'Stert,' 4 Rob., 65; the Jonge Pieter,' 4 Rob., 83; the Ocean,' 3 Rob., 297; the 'Maria,' 6 Rob., 201; the Charlotte Sophia,' 6 Rob., 204, note; Heffter, Droit International, § 155.