Opinion of Bynkershoek on blockade. Legal aspect of blockade want, the law forbids, in general terms, carrying anything to them; otherwise disputes and altercations would arise to which there would be no end" (u). Bynkershoek appears to have mistaken the true sense of the above-cited passage from Grotius, in supposing that the latter meant to require, as a necessary ingredient in a strict blockade, that there should be an expectation of peace or of a surrender, when, in fact, he merely mentions that as an example, by way of putting the strongest possible case. But that he concurred with Grotius in requiring a strict and actual siege or blockade, such as where a town is actually invested with troops, or a port closely blockaded by ships of war (oppidum obsessum,' 'portus clausos'), is evident from his subsequent remarks in the same chapter, upon the decrees of the States-General against those who should carry anything to the Spanish camp, the same not being then actually besieged. He holds the decrees to be perfectly justifiable, so far as they prohibited the carrying of contraband of war to the enemy's camp; "but, as to other things, whether they were or were not lawfully prohibited, depends entirely upon the circumstance of the place being besieged or not." So also, in commenting upon the decree of the States-General of the 26th June, 1630 (x), declaring the ports of Flanders in a state of blockade, he states that this decree was for some time not carried into execution by the actual presence of a sufficient naval force, during which period certain neutral vessels trading to those ports were captured by the Dutch cruisers; and that part of their cargoes only which consisted of contraband articles was condemned, whilst the residue was released with the vessels. "It has been asked," says he, "by what law the contraband goods were condemned under those circumstances, and there are those who deny the legality of their condemnation. It is evident, however, that whilst those coasts were guarded in a lax or remiss manner, the law of blockade, by which all neutral goods going to or coming from a blockaded port may be lawfully captured, might also have been relaxed; but not so the general law of war, by which contraband goods, when carried to an enemy's port, even though not blockaded, are liable to confiscation" (y). The law of blockade (2) like that of contraband is a compromise (u) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 11. (x) This famous Dutch decree of 1630 may be regarded as the first systematic attempt at State legislation for the purpose of regulating the sub ject of blockade. Cf. R. Kleen, Lois (2) The law of blockade was con between the conflicting rights of belligerents and neutrals, viz., running and the right of the belligerent to injure his foo so as to compel him contraband. conveying to give up the struggle, and the right of the neutral to carry on his usual trade with that foe. It is often said that the violation of a blockade and the transportation of contraband are unlawful, but this requires some explanation. If by this expression it is intended to imply that such acts are contrary to international law, in the sense of being criminal or as being acts of disobedience to a positive rule, the term unlawful is then wrongly used. Neutral subjects are under no positive duty imposed by the law of nations, to abstain from blockade running, or from carrying contraband; and with regard to the latter this has been formally recognised, as we have seen, by the conventional law drawn up at the Hague Conference (a). The acts which amount to such prohibited proceedings in time of war are perfectly lawful in time of peace, but the existence of war gives to the belligerents certain rights which they may enforce against the neutrals who engage in these two transactions. Thus the exportation of a cargo of arms to any State during peace is indisputably lawful, and it is also permissible when the State to which the arms are consigned is at war, but in this case the sender is exposed to the risk of forfeiting his goods if the other belligerent can capture them on their way. So it is with blockade. Its violation only exposes the blockade runner to the chance of losing his ship and cargo, if he is unsuccessful. It is no violation of neutrality for a State not to prevent its subjects from engaging in such traffic; its duty as a neutral consists in letting them do so at their own risk, and abandoning them to the Prize Courts of the belligerent who may capture them (b). Proclamations of neutrality usually inform subjects that if they engage in blockade running or the carriage of contraband they "will rightfully incur, and be justly liable to, hostile capture, and to the penalties denounced by the law of nations in that behalf," and that persons venturing on such proceedings will act at their peril and will in no wise obtain any protection from their sovereign (c). Thus these two transactions are only "unlawful" in the sense that the belligerent may inflict the punishment of confiscation if he can catch the perpetrators in the act. When the act sidered by the London Naval Conference, 1908-1909, which drew up the fundamental principles of the international law on the subject in a brief code of twenty-one Articles, viz., Arts. 1-21 of the Declaration of London (1909). (a) See supra, p. 664. (b) Parl. Papers, N. America, 1873 (No. 2), p. 109. (c) British Proclamation of Feb. 11th, 1904, in reference to the RussoJapanese War, Appendix A. Sec Rep. of Neutrality Laws Commission (1868). p. 74; and see there other proclamations. Sieges and blockades. Extent of blockade. is completed no penalty can be imposed; the responsibility for it ceases on completion (d). In the foregoing remarks it is assumed that the neutral States have not enacted any municipal law expressly prohibiting blockade running, &c., and that they are not bound by any treaty stipulations on the subjects. The matter is here discussed only from the point of view of international law unrestricted by any special arrangement (e). There is an important distinction between sieges and blockades. The former are as a rule undertaken with the object of capturing the place besieged, while the usual object of the latter is to cripple the resources of the enemy by intercepting his commerce with neutral States. A city may be, and often is, both besieged and blockaded at the same time (f). It is thus evident that neutral States suffer to a great extent from a blockade, and such an undertaking has been described as "la plus grave atteinte qui puisse être portée par la guerre au droit des neutres" (g). A blockade being thus an infringement of neutral rights, its operation is not to be extended further than the actual circumstances of the case render it necessary. The Declaration of London lays down specifically that a blockade must be limited to the ports and coasts belonging to or occupied by the enemy (h), and that the blockading forces must not bar access to neutral ports The Peterhoff. or coasts (i). Thus when the United States declared all the Southern ports blockaded, and a squadron cruised off the mouth of the Rio Grande to intercept the trade with Texas, the Supreme Court decided that this blockade was not to be held to apply to the western side of the Rio Grande, which was in Mexican and neutral territory (k). The enemy territory that may be blockaded includes the enemy's own country, his colonies, his colonial protectorates, his leased territory, and any territory occupied or controlled by him, whether the occupation be political or military. Thus, in the Russo-Japanese war, Japan declared a blockade of Chinese territory that had been leased (in 1898) to Russia. There is a difference of opinion as to whether the mouth of an international river may legitimately be blockaded, if the riparian States are not all belligerents. In the Crimean war, 1854, the (d) The Helen (1855), L. R. 1 A. & E. 1; Ex parte Chavasse (1865), 11 Jur. N. S. 400; Naylor v. Taylor, 9 B. & C. 718. (e) See on this subject Parl. Papers, N. America, 1873 (No. 2), p. 14. Letters of Historicus: Contraband. (f) Calvo, Droit International, vol. ii. 1139. (9) E. Cauchy, Droit Maritime In ternational (Paris, 1862), tom. ii. P. 196. See also P. Fiore, Trattato (i) Ibid. Art. 18. (k) The Peterhoff (1866), 5 Wallace, 35. Cf. The Frau Ilsabe (1801), 4 C. Rob. 63; The Luna, Edw. 190. British and French fleets blockaded the mouth of the Danube, but Bavaria and Würtemberg, which were then neutral, protested. During the Franco-German war, however, when the French blockaded the German coast of the North Sea, they exempted the mouth of the River Ems, which flows partly through Holland. With regard to the neutralized-or rather internationalizedcanals of Suez and Panama, there are special treaty stipulations which exempt them from blockade. A maritime blockade is not violated by sending goods to the Interior canal blockaded port, or by bringing them from the same, through the navigation. interior canal navigation or land carriage of the country. A blockade may be of different descriptions. A mere maritime blockade, effected by a force operating only at sea, can have no operation upon the interior communications of the port. The legal blockade can extend no further than the actual blockade can be applied. If the place be not invested on the land side, its interior communications with other ports cannot be cut off. If the blockade be rendered imperfect by this rule of construction, it must be ascribed to its physical inadequacy, by which the extent of its legal pretensions is unavoidably limited (7). But goods shipped in a river, having been previously sent in lighters along the coast from the blockaded port, with the ship under charterparty proceeding also from the blockaded port in ballast to take. them on board, were held liable to confiscation. This case is very different from the preceding, because there the communication had been by inland navigation, which was in no manner and in no part of it subject to the blockade (m). A blockade must also be absolute, that is, it must interdict all Impartiality. commerce whatever with the blockaded port. It is not legitimate if it allows to either belligerent a freedom of commerce denied to the subjects of neutral States (n). This rule is recognised by the Declaration of London, which says that a blockade must be applied impartially to the ships of all nations (o); although the commander of a blockading force may, if he sees fit, allow a neutral warship to enter a blockaded port, and afterwards to leave it (p). During the Crimean War various orders were issued by the Eng- The Franciska. lish, French, and Russian Governments, the effect of which was to permit trade to be carried on by their respective subjects in the (1) The Comet, Edw. Ad. 32; The Peterhoff (1866), 5 Wallace, 35. (m) The Neutralitet (1801), C. Rob. 297; The Stert (1801), 4 C. Rob. -65. (n) The Rolla (1807), 6 C. Rob. (0) Declar. of London, Art. 5. Baltic ports, while those ports were blockaded by the English and French fleets, but which excluded neutrals from such trade. During this blockade a Danish (and neutral) ship was captured by an English cruiser near the entrance of the Gulf of Riga. The Privy Council held that as the blockade was relaxed in favour of belligerents to the exclusion of neutrals, it was not a legal blockade, and therefore the vessel was improperly seized for attempting to enter the port of Riga, and must be restored (q). Under the British practice, the stringency of the rule prohibiting vessels from entering a blockaded port is only relaxed when the ship attempting to enter does so from reasons of necessity. She may be out of provisions or water, or she may be in a leaking condition, or otherwise in need of immediate repairs, and there is no other port easy of access. The case, however, must be one of absolute and uncontrollable necessity; and this must be established beyond reasonable doubt. "Nothing less," says Lord Stowell, "than an uncontrollable necessity, which admits of no compromise, and cannot be resisted," will be held a justification of the offence. Any rule less stringent than this would open the door to all sorts of fraud; and attempted evasions of the blockade would be sought to be excused on pretences of distress and danger not warranted by the facts, but the falsity of which it would be difficult to expose (r). The Declaration of London says on this point that in circumstances of distress, acknowledged by an officer of the blockading force, a neutral vessel may enter and leave a blockaded place, provided that she has neither discharged nor shipped any cargo there (s). This provision, then, gives the vessel a right to enter, and then to depart, if the distress be established (t). "To constitute a violation of blockade," said Sir W. Scott, "three things must be proved: firstly, the existence of an actual blockade; secondly, the knowledge of the party supposed to have offended; and thirdly, some act of violation, either by going in or coming out with a cargo laden after the commencement of blockade" (u). 1. The definition of a lawful maritime blockade, requiring the actual presence of a maritime force stationed at the entrance of the port, sufficiently near to prevent communication as given by (a) The Franciska (1854), 10 Moo. P. C. 36; Spinks, 111. (r) The Diana (1803), 7 Wallace, 369; The Major Barbour, Blatchford, Prize Cases, 167; The Forest King, Blatchford, P. C. 2; The Panaghia |