of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, tc seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. (b) It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles subject to the right of seizure, in transitu. (c) This right has since been explicitly declared by the judicial authorities of this country. (d) The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.1

Contraband articles are said to be of an infectious nature,

(b) Vattel, b. 3, c. 7, sec. 113.

(c) M. Adet's Letter to Mr. Pickering, March 11th, 1796; Mr. Pickering's Letters to M. Adet, January 20th and May 25th, 1796; Circular Letter of the Secretary of the Navy to the Collectors, August 4th, 1793.

(d) Richardson v. Maine Ins. Company, 6 Mass. 113; The Santissima Trinidad, 7 Wheaton, 283.

1 This passage is cited and approved by Lord Westbury in Ex parte Chavasse, re Grazebrook, 11 Jur. N. s. 400, 34 L. J. N. s. By. 17; Historicus, Int. Law, 119, 129 (on neutral trade in contraband of war); Hobbs v. Henning, 17 C. B. N. s. 791, 810; 11 Op. Att.-Gen. 408, 410; ib. 451; The Helen, L. R. 1 Ad. & Ec. 1. The above cases show that similar principles apply to blockade-running. See, also, an article in 5 Am. Law Rev. 247.

nature of contraband, is sustained by The Peterhoff, 5 Wall. 28, 59; s. c. Blatchf. Pr. 463; Springbok, 5 Wall. 1, 26; Blatchf. Pr. 434. Vessels were condemned in the cases of the Bermuda, 3 Wall. 514, 555; Hart, ib. 559; s. c. Blatchf. Pr. 387. See, also, Hobbs v. Henning, 17 C. B. N. s. 791, 814.

Other treaties besides those mentioned in note (b) of the next page, are to be found 11 U. S. St. at L. 642 (with King of Two Sicilies); 15 id. 473, 480, 481 (with Domin

The next passage, as to the infectious ican Republic); 10 id. 880, 881; ib. 937, &c.

*

and they contaminate the whole cargo belonging to the *143 same owners. The innocence of any particular article is not usually admitted, to exempt it from the general confiscation. By the ancient law of Europe, the ship, also, was liable to condemnation; and such a penalty was deemed just, and supported by the general analogies of law, for the owner of the ship had engaged it in an unlawful commerce, and contraband goods are seized and condemned ex delicto. But the modern practice of the courts of admiralty, since the age of Grotius, is milder; and the act of carrying contraband articles is attended only with the loss of freight and expenses, unless the ship belongs to the owner of the contraband articles, or the carrying of them has been connected with malignant and aggravating circumstances; and among those circumstances, a false destination and false papers are considered as the most heinous. In those cases, and in all cases of fraud in the owner of the ship, or in his agent, the penalty is carried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and the innocent parts of the cargo. (a) This is now the established doctrine; but it is sometimes varied by treaty, in like manner as all the settled principles and usages of nations are subject to conventional modification. (b)1 - A neutral may also forfeit the immunities of his national character by violations of blockade; and among the rights of belligerents, there is none more clear and incontrovertible, or more just and necessary in the application, than that which gives rise to the law of blockade. Bynkershoek (c)

2. Blockades.

(a) Bynk. Q. J. Pub. b. 1, c. 12 and 14; Heinec. de Nav. ob Vect. Merc. Vetit. Com. c. 2, sec. 6; Opera, ii. 348; The Staadt Embden, 1 C. Rob. 26; The Jonge Tobias, 1 C. Rob. 329; The Franklin, 3 C. Rob. 217; The Neutralitet, 3 C. Rob. 295; The Edward, 4 C. Rob. 68; The Ranger, 6 C. Rob. 125. Vide infra, 151, note.

(b) In the treaty between the United States and the Republic of Colombia, and in that with the republics of Chili, of Venezuela, and of the Peru-Bolivian Confederation and Ecuador, it is provided, that contraband articles shall not affect the rest of the cargo, or the vessel, for it is declared that they shall be left free to the owner. In these treaties, the articles of contraband are enumerated, and they consist of munitions of war, and other things made up in a military form and for a military use, and cavalry horses, with their furniture, and all materials, manufactured, prepared, and formed expressly for the purposes of war, either by sea or land. All other merchandises and things are declared to be subjects of lawful commerce.

(c) Q. J. Pub. b. 1, c. 4, sec. 11.

1 Ante, 142, n. 1. On the next passage on the law of blockade, International in the text, compare Historicus's letters Law, 87, 97.

144 says, it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius (a) considers the carrying of supplies to a besieged town, or a blockaded port, as an offence exceedingly aggravated and injurious. They both agree that a neutral may be dealt with severely; and Vattel says he may be treated as an enemy. (b) The law of blockade is, however, so harsh and severe in its operation, that, in order to apply it, the fact of the actual blockade must be established by clear and unequivocal evidence; and the neutral must have had due previous notice of its existence; and the squadron allotted for the purposes of its execution must be competent to cut off all communication with the interdicted place or port; and the neutral must have been guilty of some act of violation, either by going in, or attempting to enter, or by coming out with a cargo laden after the commencement of the blockade. The failure of either of the points requisite to establish the existence of a legal blockade amounts to an entire defeasance of the measure, even though the notification of the blockade had issued from the authority of the government itself. (c)

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. All decrees and orders, declaring extensive coasts and whole countries in a state of blockade, without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law. The ancient authorities all referred to a strict and actual siege or blockade. The language of Grotius (d) is oppidum obsessum vel portus clausus, and the

investing power must be able to apply its force to every *145 point of the * blockaded place, so as to render it dangerous

to attempt to enter, and there is no blockade of that part where its power cannot be brought to bear. (a) The definition of a blockade given by the convention of the Baltic powers, in 1780, and again in 1801, and by the ordinance of Congress, in 1781, required that there should be actually a number of vessels

(a) B. 3, c. 1, sec. 5.

(b) B. 3, c. 7, sec. 117.

(c) The Betsey, 1 C. Rob. 93; 1 Chitty on Commercial Law, 450; Letter from Mr. Clay, the Secretary of State, to Mr. Tudor, dated October 23d, 1827.

(d) B. 3, c. 1, sec. 5.

(a) The Mercurius, 1 C. Rob. 80; The Betsey, 1 C. Rob. 93; The Stert, 4 C. Rob, 65; Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804.

stationed near enough to the port to make the entry apparently dangerous. The government of the United States has uniformly insisted that the blockade should be effective by the presence of a competent force, stationed and present at or near the entrance of the port; and they have protested, with great energy, against the application of the right of seizure and confiscation to ineffectual or fictitious blockades. (b)1

The occasional absence of the blockading squadron, produced by accident as in the case of a storm, and when the station is resumed with due diligence, does not suspend the blockade, provided the suspension, and the reason of it, be known; and the law considers an attempt to take advantage of such an accidental removal as an attempt to break the blockade, and as a mere fraud. (c) The American government seemed disposed to admit the continuance of the blockade in such a case; (d) and the language of the judicial authorities in New York has been in favor of the solidity and justness of the English doctrine of blockade on this point. (a) But if the blockade be *146 raised by the enemy, or by applying the naval force, or

(b) Mr. King's Letter to Lord Grenville, May 23d, 1799; Mr. Marshall's Letter to Mr. King, Sept. 20th, 1799; Mr. Madison's Letter to Mr. Pinckney, October 25th, 1801; Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804; Mr. Pinckney's Letter to Lord Wellesley, January 14th, 1811. In the convention between Great Britain and Russia, on the 17th of June, 1801, a blockaded port was declared to be, "that where there is, by the disposition of the power which attacks it with ships stationary, or sufficiently near, an evident danger in entering." The definition in the treaty of commerce between the United States and Chili, in May, 1832, art. 15, and the Peru-Bolivian Confederation, in May, 1838, art. 14, of a besieged or blockaded place is, “one actually attacked by a belligerent force, capable of preventing the entry of the neutral."

(c) The Frederick Molke, 1 C. Rob. 86; The Columbia, 1 C. Rob. 154; The Juffrow Maria Schroeder, 3 C. Rob. 155; The Hoffnung, 6 C. Rob. 116, 117.

(d) Mr. Marshall's Letter to Mr. King, September 20th, 1799.

(a) Radcliff, J., 2 Johns. Cas. 187; Radcliff v. U. Ins. Co., 7 Johns. 38.

1 Post, 147, n. 1. The Peterhoff, 5 Wall. 28; s. c. Blatchf. Pr. 463; The Sarah Starr, Blatchf. Pr. 69; The Douro, ib. 362; Historicus, Int. Law, 89. A public blockade once established and duly notified, must be presumed to continue until notice of discontinuance, in the absence of positive proof of discontinuance by other evidence; and it is not enough that the master and mate of the captured

vessel swear that they saw no blockading ships off the port. The Baigorry, 2 Wall. 474; The Circassian, ib. 134. The occupation of New Orleans by the Northern forces in 1862, did not immediately put an end to the blockade of the port. The Circassian, 2 Wall. 135; The Baigorry, ib. 474. See The Venice, ib. 258; The Josephine, 3 Wall. 83.

part of it, though only for a time, to other objects, or by the mere remissness of the cruisers, the commerce of neutrals to the place ought to be free. The presence of a sufficient force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade. He looks only to the matter of fact; and if the blockading squadron is removed when he arrives before the port, and he is ignorant of the cause of the removal, or if he be not ignorant, and the cause be not an accidental one, but voluntary, or produced by an enemy, he may enter, without being answerable for a breach of the blockade. When a blockade is raised voluntarily, or by a superior force, it puts an end to it absolutely; and if it be resumed, neutrals must be charged with notice de novo, and without reference to the former state of things, before they can be involved in the guilt of a violation of the blockade. (b)

The object of a blockade is not merely to prevent the importation of supplies, but to prevent export as well as import, and to cut off all communication of commerce with the blockaded port. The act of egress is as culpable as the act of ingress, if it be done fraudulently; and a ship coming out of a blockaded port is, in the first instance, liable to seizure, and, to obtain a release, the party must give satisfactory proof of the innocence of his intention. (c) But according to modern usage, a blockade does not rightfully extend to a neutral vessel found in port when the blockade was

instituted, nor prevent her coming out with the cargo bona *147 fide purchased, and laden on board before the * commence

ment of the blockade. (a)1 The modern practice does not require that the place should be invested by land, as well as by sea, in order to constitute a legal blockade; and if a place be blockaded by sea only, it is no violation of belligerent rights for

(b) Williams v. Smith, 2 Caines, 1; Letter of the Secretary of State to Mr. King, September 20th, 1799; The Hoffnung, 6 C. Rob. 112.

(c) Bynk. Q. J. Pub. b. 1, c. 4; The Frederick Molke, 1 C. Rob. 86; The Neptunus, 1 C. Rob. 170; The Vrouw Judith, 1 C. Rob. 150.

(c) The Betsey, 1 C. Rob. 93; The Vrouw Judith, 1 C. Rob. 150; The Comet, Edw. Adm. 32; Olivera v. Union Ins. Co., 3 Wheaton, 183.

1 The Hiawatha, Blatchf. Pr. 1; s. c. Prize Cases, 2 Black, 635; The Gerasimo, 11 Moore, P. C. 88, 116. During the late war the mouth of the Rio Grande,

between Texas and the neutral territory of Mexico, was not blockaded, and, it seems, it could not have been. The Peterhoff, 5 Wall. 28: s. c. Blatchf. Pr. 463.