Regulated been placed under blockade by a belligerent Power. § 101. It has been observed that the practice of belligerents to forbid by Proclamation all trade with the enemy, and to confiscate the property of parties contravening their Proclamation, was successfully impugned in the seventeenth century, as an immo 9 Plutarch. in Demetrio. 10 Plutarch. in Pompeio. § 314. 12 Das Europäische Völkerrecht, § 154. derate and unreasonable exercise of belligerent Force, and may now be regarded as having no sanction from the modern law of European Nations. We may trace back to the same century the first systematic attempt to regulate the belligerent Right of Blockade, which originated with the Dutch. The States General of the United Provinces, proceeding upon the advice of their Courts of Admiralty, issued an Ordinance on 26 June 1630, the object of which was to regulate the blockade of the Ports of Flanders, then in possession of the Spanish Crown. The purport of the first article of that Ordinance was, that neutral vessels found coming out of or entering into enemies' ports in Flanders, or so near to them that their intention to enter them was beyond all doubt, should be confiscated with their cargoes by sentence of the said Courts, " inasmuch as their High Mightinesses keep the said ports continually blockaded by their vessels of war at an excessive charge to the State, in order to hinder all transport to and commerce with the enemy; and because those ports and places are reputed to be besieged, which has been from all time an ancient usage after the example of all Kings, Princes, Powers, and other Republics, which have exercised the same Right on similar occasions 13 " It will be seen that this Ordinance contemplates that three things shall be proved before the Courts of Admiralty: (1) the existence of a blockade de facto; (2) the reputation of such a blockade; and (3) an undoubted intention to violate the blockade. These three conditions are in perfect accordance with those laid down by Lord Stowell (12 Dec. 13 Robinson's Collectanea Mari- the Hurtige Hane, 3 Ch. Rob. tima, p. 158. These Ordinances P. 327. are also set forth in a note to 02 Legal requirements of a binding blockade. 1798") in the case of the Betsey, and which have been approved by the Lords of Appeal in Prize Causes. "On the question of blockade," he says, "three things must be proved: 1st, the existence of an actual blockade; 2d, the knowledge of the party; 3d, some act of violation either by going in or coming out with a cargo laden after the commencement of the blockade." $ 102. The point therefore which first requires to be considered is, what constitutes an actual blockade. It was one of the objects of the Armed Neutrality of 1780 to establish a more precise rule than had hitherto prevailed for determining that a port was actually under blockade, so as to impose upon neutral merchants an obligation to abstain from trading with that port 15. In pursuance of that object the Empress of Russia communicated to the various European Powers a Declaration of the principles of the Armed Neutrality comprised in four propositions, the fourth of which was to the effect that," in order to determine what characterises a blockaded port, that term shall only be applied to a port, where, from the arrangement made by the attacking Power with vessels stationed off the port and sufficiently near, there is evident danger in entering the port 16" Great Britain acceded to this definition of a blockaded port in her Convention with Russia on 17 Jan. 1801", and the principles generally affirmed by the European Powers during the present century may be said to be 14 The Betsey, 1 Ch. Rob. p. 93. 15 Declaration of 28 Feb. 1780. Martens, Récueil, Tom. III. p. 158. 16 Que pour déterminer ce qui caractérise un port bloqué, on n'accord cette dénomination qu'à celui, où il y a, par la disposition de la Puissance qui l'attaque avec des vaisseaux arrêtés et suffisamment proches, un danger évident d'entrer. 17 Martens, Récueil, T. VII. p. 260. in harmony with it. Thus at the outset of the war with Russia in 1854, France and England may be considered to have affirmed the same principle, which was maintained by the Armed Neutrality, when they declared their intention "to maintain the right of a belligerent to prevent neutrals from breaking any effective blockade, which may be established with an adequate force against the enemy's ports, harbours, or coasts." Upon the conclusion of peace with Russia the subject of Belligerent Blockade came under the consideration of the Powers assembled at Paris in the Congress of 1856, when it was agreed to remove Declaraall uncertainty amongst themselves by declaring their Congress view of the Law Maritime on this subject, and by inviting all other Nations to accede to a common Declaration. The proposition which was accordingly adopted by the Congress was to this effect: "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 18" § 103. If it be assumed, that there is now an established Concert amongst the European Powers with the exception of Spain 19 on the subject of a binding Blockade, and that the business of European Courts of Prize in the majority of cases will henceforth be to ascertain whether an asserted Blockade is maintained in a manner which satisfies the Declaration of the Congress of Paris, it will be of importance to consider what is the meaning to be fairly attached to the words "sufficient really to pre 18 Les blocus, pour être obligatoires, doivent être effectifs, c'est-à-dire, maintenus par une force suffisante pour interdire réellement l'accès du littoral de l'ennemi. Martens, N. R. Gen. XV. p. 792. The English text is taken from a paper presented 19 Spain has not acceded tion of the of Paris. istics of an Character vent access to the coast of the enemy," and whether effective there are any judicial decisions which will guide us blockade. in arriving at a just interpretation of those words. An analogous question came under the consideration of the High Court of Admiralty of England in the case of the Franciska 20 (25 Jan. 1855), when Dr. Lushington was called upon to determine, whether the blockade imposed upon the port of Riga was an Effective Blockade. That learned Judge, after observing that all definitions are and must be from the nature of blockades loose and uncertain, goes on to say, "The maintenance of a blockade must always be a question of degree-of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention nor indeed more opposed to my notions of the Law of Nations than any relaxation of the rule, that a blockade must be sufficiently maintained: but it is perfectly obvious,, that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone. Hence I believe that in every case the enquiry has been, whether the force was competent and present, and if so, the performance of the duty was presumed; and I think I may safely assert, that in no case was a blockade held to be void, when the blockading force was on the spot or near thereto, on the ground of vessels entering into or escaping from the port, where such ingress or egress did not take place with the consent of the blockading squadron." The circumstance of one or two vessels being successful in eluding the vigilance of a blockading 20 The Franciska. Spinks, Ecclesiastical and Admiralty Reports, II. p. 128. |