The Act of June 18, 1812, declaring war to exist with Great Britain, authorized the issuance of letters of marque and general reprisal against the vessels, goods and effects of that government or its subjects.* The Act of March 3, 1815, gave to the President the same authority to issue letters of marque and reprisal against the Dey of Algiers, as was conferred in the case of Tripoli.† During the Mexican War no reprisals were authorized in express terms by Congress, and no letters of marque were issued. Mexican property at sea was subject to capture by vessels-of-war, under the ordinary rules of war.‡ The Act of March 3, 1863, authorized the President to issue letters of marque and general reprisal in all domestic and foreign wars, but it was passed with reference to the War of Secession only, and was, by its own terms, limited to three years' duration.§ sion. "Retorsion, or retaliation, is to apply the lex talionis to Sec. 5. Retoranother nation-treating it or its subjects in similar circumstances according to the rule which it has set." || "Retorsion is the appropriate answer to acts which it is within the strict right of a State to do, as being general acts of State organization, but which are evidence of unfriendliness, or which place the subjects of a foreign State under special disabilities as compared with other strangers, and result in injury to them. It consists in treating the subjects of the State giving provocation in an identical or closely analogous manner with that in which the State using retorsion are treated. Thus if the productions of a particular State are discouraged or kept out of a country by differential import duties, or if its subjects are put at a disadvantage as compared with other foreigners, the State affected may retaliate upon its neighbors by like laws and tariffs." d'angarie. Of the nature of embargo is the so-called droit d'angarie, for Sec. 6. Droit which some writers have claimed the sanction of international law. This is the right, sometimes exercised by a belligerent, of detaining the vessels of a neutral and using them and their * U. S. Statutes at Large, Vol. II, p. 755. † Ibid. Vol. III, p. 230. Treaty stipulations. crews in military or naval expeditions. It is now considered justifiable only in cases of extreme necessity. "It can only be excused, and perhaps scarcely justified by that clear and overwhelming necessity which would compel an individual to seize his neighbor's horse or weapon to defend his own life." The same views of the practice are held by all modern writers of authority.† One of the earliest treaties concluded by the United States, that with Prussia of 1785, declared in Article XVI that "the subjects or citizens of each of the contracting parties, their vessels and effects, shall not be liable to any embargo or detention on the part of the other, for any military expedition, or other public or private purpose whatsoever." This was modified in the treaty of 1799, continued in force by that of 1828, and the present stipulation is that the vessels of either power shall be detained and used only in cases of urgent necessity, and that the owners of the vessels so detained shall obtain full indemnity for their freight as well as for the loss occasioned by the delay.‡ This is the language generally used in treaties of the United States where any reference is made to the subject. Under the rule which does not admit the plea of enforced service in bar of condemnation of a neutral vessel captured while employed in the military service of a belligerent, the practice of seizing neutral vessels to be employed as transports could not be defended as a right. * Phillimore, Vol. III, p. 42. † Hautefeuille, Vol. IV, p. 439, et seq. U. S. Treaties, 1873, Prussia, pp. 711, 720. See also Bolivia, Italy, &c. PART IV. BLOCKADE. THE OBJECTS, ESTABLISHMent, Manner OF CONDUCTING BLOCKADE. tion. "The word blockade properly denotes obstructing the passage Sec. 1. Definiinto or from a place on either element, but is more especially applied to naval forces preventing communication by water. With blockades by land, or ordinary sieges, neutrals have usually little to do."* "Blockade is an incident of war, whether carried on between two nations, or by a legal government to suppress rebellion."† The action of the French government in lately establishing a blockade over the Island of Formosa, and certain Chinese ports, as part of the hostile measures carried on against China, but without a formal declaration of war, may render an extension of this definition necessary. These measures have been submitted to without any protest by the other powers, and it would seem that the validity of a blockade established after open hostilities have occurred between two nations will be recognized even where war has not been declared and negotiations for a peaceful settlement are still in progress. "There is no belligerent right more conclusively established in the law of nations, and certainly none more necessary or important in its application, than the right of blockade, as it has been defined, determined and practically executed in modern times. The right derives its origin from the highest and purest sources of maritime jurisprudence, is sanctioned by the practice of the most enlightened nations, and is justly regarded as one of the great bulwarks of a nation's security and independence."‡ "Blockade is a belligerent right under the law of nations * Woolsey, Sec. 186. + Upton, p. 275. † Dahlgren, p. 26. Sec. 2. Origin of the right. Sec. 3. Notification. where war exists, and is as clearly defined as the belligerent right to levy contributions in the enemy's country. As the Supreme Court hold the latter to be constitutionally in the President, without an Act of Congress, as commander-in-chief of the army and navy, it follows necessarily that the power of blockade also resides in him; indeed, it would seem a clearer right, if possible, because as chief of the navy nobody can doubt the right of its commander to order a fleet or a ship to capture an enemy's vessel at sea, or to bombard a fortress on shore, and it is only another mode of assault and injury to the same enemy to shut up his harbors and close his trade by the same ship or fleet. The same weapons are used. The commander only varies the mode of attack.' "As a blockade is not a necessary consequence of a state of war, but has to be specially instituted, it would evidently be impossible to assume that a neutral possesses any knowledge of its existence until the fact of its establishment has been in some manner notified or brought home to him. So far not only is the general rule as a matter of fact agreed upon, but it could not stand otherwise. But opinions differ widely as to whether it is sufficient, in order to justify the belligerent in seizing the property of the neutral, that the knowledge of the latter shall be proved, or whether a formal notification must be served upon him. "According to the view which finds its expression in English and North American practice, and which is adopted also by Prussia and Denmark, the source of liability to seizure is knowledge of the fact that a blockade has been established, together with the presumption that an existing blockade will under ordinary circumstances continue. A neutral, therefore, who sails for a port with full knowledge that it is blockaded at the moment when his voyage is commenced, ought to expect that it will be in the same state when he arrives; and anything which can be proved to affect him with knowledge at the former time will render him liable to the penalties imposed for violation of blockade. "On the other hand, according to the view which is identified with French practice, and which is also followed by Italy, Spain, and Sweden, the neutral is not expected to shape his course on *Monthly Law Reporter, July, 1861, p. 151. The Tropic Wind. any presumption with respect to the continuance or cessation of a blockade; and he is not injuriously affected by knowledge acquired at any time before he can experimentally test its existence as good on the spot which is subjected to it. "Hence, although it has lately become customary for the French government at the commencement of a blockade to notify the fact of its existence to foreign governments as a matter of courtesy, their subjects are not considered to be affected by notice through them. Each neutral trader approaching the forbidden coast is individually warned by one of the blockading squadron, a vessel not engaged in the blockade being incompetent to affect the trader with notice, the fact of warning is endorsed on the ship's papers, with mention of date and place of notification, and it is only for subsequent attempts to enter that the neutral is liable to seizure. "The theory accepted in England and the United States is the natural parent of a more elastic usage. Notification is a convenient mode of fixing a neutral with knowledge of the existence of a blockade, but it is not the necessary condition of his liability to seizure. In strictness, if a neutral vessel sail with the destination of a blockaded port from a place at which the fact of the blockade is so notorious that ignorance of its existence is impossible, confiscation may take place upon seizure without previous warning. But in practice notification of some sort is always given. If the blockade is instituted under the direct authority of the government, the fact of its commencement is notified to foreign States. The information thus communicated affects their subjects, who must be supposed to be put in possession of the knowledge which is afforded with the express object of its being communicated to them."* must have notice. "It is absolutely necessary that the neutral should have had The neutral due notice of the blockade, in order to affect him with the penal consequences of a violation of it. This information may be communicated to him in two ways; either actually, by a formal notice from the blockading power; or constructively, by notice to his government, or by the notoriety of the fact. It is immaterial in what way the neutral comes to the knowledge of the blockade. If the blockade actually exists, and he has a *Hall, p. 611 et seq. |