steamers and

interrupt the communications between a neutral government and its representative in a foreign county, through a port, the trade to which would otherwise be illegal; at any rate if the despatches are carried in a public manner, in vessels commissioned by the State for that purpose, and vested with the character of packets."*

The right of exclusion has not been at any time conceded by the United States; the language of all treaties where blockade is defined being clearly applicable to merchant vessels only. Sec. 18. Mail It may be a question how far a blockade should restrict the blockades. operations of regular lines of mail steamers, and whether the service carried on by them should be permitted with blockaded ports. Much will probably be left in this respect with the officer charged with the establishment of the blockade. The opinion quoted in the preceding section will influence largely any action taken with regard to mail steamers, and the present tendency is towards giving them special immunities during

Sec. 19. Pacific blockade.

war.

During the war between the United States and Mexico, British mail steamers were allowed to enter and depart regularly from Vera Cruz, and during the Spanish blockade of Chilian ports in 1865-6, mail steamers were allowed to continue their regular service, of course, under guarantee not to engage in any contraband trade. The same course was observed during the late war between Chili and Peru.

As having a bearing on this subject, the Postal Convention of 1848, between the United States and Great Britain, may be cited. By Article XX of that Convention it is provided that, "In case of war between the two nations, the mail packets of the two offices shall continue their navigation without impediment or molestation until six weeks after a notification shall have been made, on the part of either of the two Governments, and delivered to the other, that the service is to be discontinued; in which case they shall be permitted to return freely, and under special protection, to their respective countries."

"Since the beginning of the present century what is called. pacific blockade has been used as a means of constraint, short of war, and the larger number of the few writers who mention it appear not to regard it as reprehensible. The first instance

* Lawrence's Wheaton, p. 827, n.

occurred in 1827, when the coasts of Greece were blockaded by the English, French and Russian squadrons, while the three powers still professed to be at peace with Turkey. Other like blockades followed in rapid succession during the next few years. The Tagus was blockaded by France in 1831, New Grenada by England in 1836, Mexico by France in 1838, and La Plata from 1838 to 1840 by France, and from 1845 to 1848 by France and England. Since the last-mentioned year no fresh instance has occurred. The practice is not one therefore which has any pretension to have established itself by usage; it must stand or fall by reference to general principle. From this point of view it is difficult to see how it can be defended. Blockade is not a measure which affects blockaded States alone. When access to a port is closed every one suffers, the course of whose business leads him to come in or go out of it; and third States only consent that their subjects shall be exposed to the loss and inconvenience inseparable from interruption of trade as one of the concessions which it has become habitual for neutrals to make to belligerents. Blockade is thus essentially an incident of war.

"The real question is whether a State in time of peace can endeavor to obtain redress from a second State for actual or supposed injuries by means which inflict loss and inconvenience upon other countries. Lord Palmerston at any rate thought not. In writing to Lord Normanby, the Ambassador at Paris in 1846, with reference to the blockade of La Plata, he said: 'The real truth is, though we had better keep the fact to ourselves, that the French and English blockade of the Plata has been from first to last illegal. Peel and Aberdeen have always declared that we have not been at war with Rosas; but blockade is a belligerent right, and unless you are at war with a State you have no right to prevent ships of other States from communicating with ports of that State; nay, you cannot prevent your own merchant ships from doing so.""*

"The higher French courts decided, in the case of a Brazilian vessel seized for breach of blockade, that a part of her cargo, which had been condemned by an inferior court on the ground of being contraband of war, should be restored, because there was no war and therefore no contraband of war.

*Hall, p. 312, et seq.

The

Sec. 20. Paper or cabinet blockade.

Paris, 1856.

vessel and the rest of the cargo had been exempted from the decision of the lower court on the ground of the want of special notification.

"The right of blockade is one affecting neutrals, and a new kind of exercise of this right cannot be introduced into the law of nations without their consent. The rights most analogous, civil and hostile embargo, may be said to be dying out, and neutrals have not given their consent to this new form of restriction of their rights. They would, if such a practice were continued, regard a pacific blockade as an act of war under a wrong name, or claim damages for all injury thereby inflicted on their commerce, which only war rights can interfere with."*

Neutrals would not to-day submit to the restrictions placed upon their trade by measures of blockade, unless instituted in the prosecution of open declared war.

Paper blockade, formerly used with such disastrous effect on commerce by several European nations, has long been obsolete and has been prohibited by the Declaration of Paris. This was the notification of a blockade, but without sending an adequate force to maintain it, or, as in some cases, a mere declaration that an enemy's coast was under blockade and all commerce with his ports interdicted, without the presence of any blockading force. It was, of course, useless without the right to capture vessels bound to ports thus declared under blockade, but with that right it became destructive to neutral commerce. Declaration of Mr. Marcy, in his answer to the invitation to the United States to unite in the Declaration of Paris, said: "The fourth principle contained in the 'declaration,' namely: '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'; can hardly be regarded as one falling within that class with which it was the object of the congress to interfere; for this rule has not, for a long time, been regarded as uncertain, or the cause of any 'deplorable disputes.' If there have been any disputes in regard to blockades, the uncertainty was about the facts, but not the law. Those nations which have resorted to what are appropriately denominated 'paper blockades,' have rarely, if ever, undertaken afterwards to justify their conduct

* Woolsey, p. 443, n. 8.

upon principle; have generally admitted the illegality of the practice, and indemnified the injured parties."*

ports compared

Certain sections of an Act of Congress of July 13, 1861, Sec. 21. Closing contemplated closing to commerce ports in the Southern States, with blockade. not in possession of the government, but without establishing a blockade over them. No attempt was made, however, to enforce the provisions of the act against citizens of foreign powers. France and Great Britain informed the government that they would consider such a law null and void, and that "they would not submit to measures taken on the high seas in pursuance of such decree."

The position taken by those governments was fully warranted by principles of international law, and was also in accordance with the principles previously enunciated by the United States in regard to belligerents. The blockade of the whole Southern coast had been previously established after notification to neutral powers, and its validity recognized by them.

Mr. Lawrence says, in his notes on Wheaton, " Nor does the law of blockade differ in civil war from what it is in foreign war. Trade between foreigners and a port in possession of one of the parties to the contest cannot be interdicted by a municipal edict of the other. For this, on principle, the most obvious reason exists. The waters adjacent to the coasts of a country are deemed within its jurisdictional limits only because they can be commanded from the shore. It thence follows that whenever the dominion over the land is lost, by its passing under the control of another power, whether in foreign war or civil war, the sovereignty over the waters capable of being controlled from the land likewise ceases."t

"The establishment of a blockade is of itself a recognition of a civil war, so far at least as regards neutral or foreign countries, and it was so held by our admiralty courts at the commencement of the pending hostilities."‡

closing ports.

Lord Russell, writing to the British Minister at Washington Lord Russell on in relation to this question, said: "Her Majesty's government admit that a civil war exists; they admit that whether the Confederate States of the South be sovereign or not is the very

* Mr. Marcy to Count de Sartiges, July 28, 1856. President's Mess. and Doc., 1856–7, p. 36.

† Lawrence's Wheaton, p. 846, n.

Ibid. p. 848.

point to be decided; but Her Majesty's government affirm, as the United States affirmed in the case of the South American Provinces, that the existence of this civil war gives to both parties the rights of war against each other.' Arguing from these premises, it is impossible for Her Majesty's government to admit that the President or Congress of the United States can at one and the same time exercise the belligerent right of blockade, and the municipal right of closing the ports of the South.

"In the present case, Her Majesty's government do not intend to dispute the right of blockade on the part of the United States with regard to ports in possession of the Confederate States, but an assumed right to close any ports in the hands of insurgents would imply a right to stop vessels on the high seas without instituting an effective blockade. This would be a manifest evasion of the necesssity of blockade in order to close an enemy's port. Neutral vessels would be excluded when no force exists in the neighborhood of the port sufficient to carry that exclusion into effect. Maritime nations would not submit to this excess under the pretence of the rights of sovereignty."*

The same position was assumed by Great Britain towards New Grenada in 1861, that Government announcing that certain ports in the hands of revolutionists were to be closed, but without establishing a blockade. The opinion given by legal advisers of Her Majesty's government, as expressed to Parliament by Lord Russell, was that "it is perfectly competent to the government of a country in a state of tranquillity to say which ports shall be open to trade and which shall be closed; but, in the event of insurrection or civil war in that country, it is not competent for its government to close the ports that are de facto in the hands of the insurgents, as that would be a violation of international law with regard to blockades." The English Admiral commanding on the station was instructed not tó recognize the closing of the ports in question.

"What measures can the State at war with a part of its subjects take in regard to foreign trade with revolted ports? To say that it cannot apply the rules of blockade, contraband and

* Lord Russell to Lord Lyons, July 19, 1861.

Lawrence's Wheaton, p. 848, n. See Sec. 6, Objects of blockade.