leave port.

outward voyage until the 16th of May, if unloosing her fasts in port be deemed the commencement of the voyage, and she is, accordingly, outside of the fifteen days' term of indulgence. When captured she had left the port of Richmond and violated the blockade there existing.

"I accordingly pronounce for the condemnation of the vessel and cargo, because of a violation of the blockade in question."* This judgment was affirmed, on appeal, by the Supreme Court of the United States.

Time allowed to It is customary to allow a reasonable time from the actual commencement of a blockade, during which neutral vessels in the blockaded ports may sail without any liability. This is only just, as the condition of a vessel may, and often will, prevent departure immediately on receiving notice of the establishment of a blockade. In the case of a vessel under repairs, the time would probably always be extended, as might be necessary, if it were shown that due diligence was displayed in preparing the vessel for sea.

During the Mexican War, by direction of the Secretary of the Navy, twenty days were allowed neutral vessels to clear from ports under blockade; and Mr. Seward, in May, 1861, informed Lord Lyons that "Neutral vessels will be allowed fifteen days to leave port after the actual commencement of the blockade, whether such vessels are with or without cargoes, and whether such cargoes were shipped before or after the commencement of the blockade."t

In view of the decision in the case of the Hiawatha, however, Mr. Seward found it necessary to write to the British Minister on the 16th of October, 1861, that "the Judge of the Court of the United States for the Southern District of New York having recently decided, after elaborate argument of counsel, that the law of blockade does not permit a vessel, in a blockaded port, to take on board cargo after the commencement of the blockade, with a view to avoid any future misunderstanding upon this subject, you are informed that the law, as thus interpreted by the judge, will be expected to be strictly

*Blatchford Prize Cases. The Hiawatha, p. 19, et seq.

† Owing to the low stage of water at the mouth of the Mississippi river when the blockade was established, the time for leaving port was extended somewhat in favor of heavy vessels then at New Orleans.

observed by all vessels in ports of the insurgent States during their blockade by the naval forces of the United States."*

Neutral vessels found in an enemy's port on its reduction, and which entered previously to the commencement of the investment or blockade, are not liable to confiscation.

of blockade.

Mr. Wheaton says of the objects for which a blockade is Sec. 6. Objects established: "One of the most important of the belligerent rights is that of blockading the enemy's ports, not merely to compel the surrender of the place actually attacked or besieged, but as a means, often the most effectual, of compelling the enemy, by the pressure upon his financial resources, to listen to reasonable propositions of peace. At the same time it cannot be fairly denied that the exercise of this incontestable right, where it is applied to all the ports of an enemy's country, so as entirely to cut off his commercial intercourse by sea with other countries, if the measure be continued for an indefinite length of time, must give rise to considerable uneasiness on the part of those powers whose accustomed trade will be thus seriously affected by it."+

"Commercial ports may, in time of war, through neutral trade, become efficacious allies to a belligerent power having the control or use of them. So far as that aid avails the enemy, it is warlike in its nature, and may be repelled by war means. Blockade is the measure recognized by the law of nations as the appropriate remedy, and that is, in character and operation, peaceful as to neutrals, and only warlike in respect to the enemy against whom it is imposed. The President, as Commanderin-Chief of the army and navy, is the functionary under our government who has, as incident to his office, the power and right to exercise the resisting and repelling means of legitimate warfare whenever the exigencies of the case require them. And it is not to be overlooked, that in selecting the method of restraining the commerce of neutrals with a besieged or beleaguered port, the milder means of blockade is more favorable to them than a peremptory exclusion of their trade by closing the port absolutely.

"It certainly can be of no consequence whether the ports blockaded belonged technically or in reality to the United

* President's Mess. and Docs., 1861-2, p. 173.

Lawrence's Wheaton, p. 821, n.

Sec. 7. Extent of blockade.

States, or were the property of individuals innocent of any warlike purposes against the United States, or of aiding its enemies. It is sufficient if the evidence shows the ports to be under the power and use of the enemies of the United States. This use may be an usurped one, and in wrong of the actual proprietary authority of the places. The right of the United States to prevent such use being turned to their prejudice, rests not at all upon the character of the true ownership and rightful authority over the places, but on that of their employment by the occupants. Whilst so held by an enemy, they become foreign territory."

By a treaty concluded between Sweden and the United Provinces in 1667, lawful blockade was defined to be, "of fortresses, towns, or places having military garrisons, only while they are besieged or attacked by an armed force with the intention of reducing them, and in regard to places on the coast, the investment must be both by land and sea."

One of the causes alleged by Napoleon I. for his Berlin Decree of November 21, 1806, was that England had "extended the right of blockade to unfortified cities and ports, to harbors and the mouths of rivers, while this right, according to reason and the usage of civilized nations, is only applicable to fortified places."

Mr. Cass, in certain instructions to United States Ministers abroad in 1859, intimated that the United States would be inclined to regard lawful blockade as confined simply to places against which military operations were directed; but although nearly all commercial treaties concluded by the United States define effective blockade, they contain no recognition of such a limit to its operations.

In reference to the operations of a blockade, Mr. Cass said: "The blockade of a coast or of commercial positions along it, without any regard to ulterior military operations, and with the real design of carrying on a war against trade, and from its very nature against the trade of peaceful and friendly powers, instead of a war against armed men, is a proceeding which it is difficult to reconcile with reason or with the opinions of modern times. To watch every creek and river and harbor upon an ocean

*Blatchford, Prize Cases, p. 10. The Hiawatha.

frontier in order to seize and confiscate every vessel, with its cargo, attempting to enter or go out, without any direct effect upon the true objects of war, is a mode of conducting hostilities which would find few advocates if now first presented for consideration."*

ion not acted upon, in war of secession.

Whatever opinion may have been held on this point by our Mr. Cass's opinState Department in discussions of neutral rights, it is certain that no such limitation of the right of blockade was for a moment entertained when the United States assumed the position of belligerents in 1861. Mr. Seward in April, 1861, referring to the proclamation of the blockade of the Southern ports, stated that it was the intention of the government to blockade the entire coast from Chesapeake Bay to the mouth of the Rio Grande. This intention was rigorously carried into effect, and every harbor, inlet and river was placed under close blockade, as were also many portions of the open coast where a landing would have been practicable.

"By the law of nations, as now recognized, a belligerent has a right to invest the ports of his enemy by sea as well as he has to lay siege to his towns by land; and not only in the case of naval stations or military ports, but also in the case of purely commercial ports, instituted for the purpose of merely closing them against trade, and not with any hope or intention of actually reducing or capturing them."+

"A blockade is not confined to a seaport, but may have effect on a roadstead, or a portion of a coast, or the mouth of a river. But if the river is a pathway to interior neutral territories, the passage on the stream of vessels destined for neutral soil cannot be impeded."‡

ade.

"A blockade cannot extend to the mouth of a river flowing Limit of blockthrough several neutral States, nor to a strait whose shores belong to different nations."§

"Where an extensive line of coast is to be blockaded, the force employed must be sufficiently large to operate on the whole line at the same time. A belligerent cannot be allowed to proclaim that he has instituted a blockade of several ports of the enemy when in truth he has only blockaded one. Accord

* President's Mess., 1859-60, p. 31, Mr. Cass to Mr. Mason. † Castle, p. 95.

§ Hautefeuille, Vol. II, p. 208.

Woolsey, Sec. 186.

Sec. 8. Effective blockade.

U. S. Navy

ingly, a neutral is at liberty to disregard such notice, and is not liable for a breach of blockade for afterwards attempting to enter the port which is really blockaded."

The declaration of the Paris Conference of 1856, that "blockades to be obligatory are to be effective, that is to say, maintained by a sufficient force to shut out the access of the enemy's ships and other vessels in reality," is now a recognized principle of international law. The United States, although declining, for reasons that will be stated hereafter, to accept that declaration in its entirety, had previously adopted in effect its definition of effective blockade in several treaties of commerce and navigation. As early as 1828 a treaty concluded between the United States and Brazil declares that "only those places are besieged or blockaded which are actually attacked by a force capable of preventing the entry of the neutral."‡

By Article XIII of the treaty with Italy of 1871 it is expressly declared that such places only shall be considered blockaded as shall be actually invested by naval forces capable of preventing the entry of neutrals, and so stationed as to create an evident danger on their part to attempt it."§ This definition is more in accordance with prevailing opinion than the declaration of Paris.

Instructions of The following instructions were given by the Navy DepartDepartment. ment to the flag-officer commanding the United States naval forces in the Pacific in 1846: "A lawful maritime blockade requires the actual presence of a sufficient force situated at the entrance of the ports, sufficiently near to prevent communication. The United States have at all times maintained these principles on the subject of blockade, and you will take care not to attempt the application of penalties for a breach of blockade except in cases where your right is justified by these rules. You should give public notice that, under Commodore Stockton's general notification, no port on the west coast of Mexico is regarded as blockaded unless there is a sufficient American force to maintain it actually present, or temporarily driven from such actual presence by stress of weather, intending to return."||

Lawrence's Wheaton, p. 835, n.

† See "Privateering."

U. S. Treaties, 1873. Brazil, p. 99; also Ecuador, Mexico, New Granada, etc.

§ Ibid. Italy, p. 507.

|| Mr. Mason, Dec. 24, 1846.