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THE LAW OF BLOCKADE.
Having been under the necessity, as the commander of a blockading force during the Rebellion, to make myself acquainted with the practice of blockade, the notes collected from various authorities swelled at last to some bulk. It occurred to me that a publication of them might save some of my brother officers the trouble which it gave me to acquire this information, scattered through many volumes, and intermixed with other subjects of international law.
I have no idea of setting up as an authority on the subjects treated of, or of originating any novelties in regard to them, but merely to place at the disposal of naval officers a practical summary of the points involved in directing a blockade, which may assist them in avoiding any material departure from the leading. principles that it is requisite to pursue. These will be found in the well-known authorities of the day.
Until recently, our Navy has had nothing to guide it save the theory of well-known writers, and the practice of European nations. But during the Rebellion, it became necessary for our own Government
and our Admiralty Courts to decide on the principles which they would follow in enforcing the most extensive, longest continued and effectual blockade that is recorded in history. In the portion assigned me alone, a stretch of three hundred miles including twenty-one ports, was closely blockaded for two years, the force at my disposal varying from seventy to one hundred vessels, three fourths of which were steamers -from the heavy ironclad frigate to the fleet cruiserand by means of the Monitors the blockade was enforced to the very forts that defended the harbors.
The proclamations of the Government and decisions of our Prize Courts now define the positions held by the United States, in relation to blockades, and which they will concede to other flags. In some respects they differ from the doctrines of the text writers; but in reality, very little from the usage of other maritime powers.
What is written on the subject is incorporated as a mere incident in the great questions of International Law, and generally with less ability. Not being nautical men (except Ortolan) they slur points which in practice are important. Now I propose to separate them and to form a manual for naval officers.
I. Blockade is an incident of war, whether carried on between two nations or by a legal Government to suppress Rebellion. In our own it was resorted to when, in many cases, a closing of the ports, would have served; but, as in other cases, the British Government constrained our necessities. It was understood that it would only admit the right to close, when the Government closing held the port. In this, as in
other cases, they set up precedents which will operate against themselves, and which we will insist on.
A pacific blockade may be convenient but it involves absurdities. Such was that of the French and English against the Argentine Republic, and that of France against Mexico. The absurdity of a pacific blockade was shown in a decision of a Prize Court, refusing to condemn as prize, because war did not exist.
II. Blockade, to be acknowledged, must be effective. This is not only the avowed doctrine now of England, France, Russia, Austria and Prussia, but it has always been the United States doctrine, established by treaty with foreign nations. This has not always been the case, particularly with England, Holland, etc. Some nations assign a fixed force to make a blockade effective, as Denmark; but the general view is expressed otherwise.
III. How neutrals are informed of a blockade. Differences of opinion exist among jurists, and nations. The practice of the United States is to make Proclamation of the fact. Notification is also made by endorsement in the early stages of a blockade. But Prize Courts decide that this is not necessary, though allowed by Proclamation.
IV. Some of the incidents of blockade, droit de suite, etc., are violently opposed by Hautefeuille.
V. Exclusion of National vessels has been discussed but not established; nor claimed save by France.
VI. Great uncertainty exists in this department of International Law. It varies with different nations, and in different epochs of the same nations.
Doctrine and practice differ. Belligerent and Neutral rights are espoused as interest sways. Nations sustain the principles of their situation. The United States are a great Neutral as regards Europe, but may be a great Belligerent as regards America, and may have to change their doctrine.
In examining the leading text writers I come first to Hautefeuille. In the second volume of his "Divine Law," he gives a whimsical definition of Blockade. It is simply an act of war, a right to injure one's enemy. In a few cases the number of vessels needed to make an effective blockade is fixed by treaty. In 1742, by the treaty between France and Denmark, two ships are required. Holland and Sicily, by the treaty of 1753, require six. This is wholly impracticable It must depend on circumstances. The Armed Neutrality of 1780, defined "evident danger in entering" to be the test of an effective blockade. This was signed by Russia, Denmark, Sweden, Prussia, Austria, Holland, Portugal, Italy, and recognized by France, Spain and the United States. England alone refused to join, until 1856, when she signed the Treaty of Paris. Hautefeuille cites the treaty between the United States and Sweden, in 1816, as the first (art. 13) which signale ce progres; regrets that the Treaty of Paris is not as explicit as it should be, especially as to Paper Blockade. Neutral vessels are confiscated which are met at sea, bound to, or sailed from a port thus blockaded. Calls the former droit de prevention, and the latter droit de suite. England resorts to Paper Blockade, but suspended it in 1854, when allied with France and at war with Russia. France never used Paper Blockade save in
1806-1807 in reprisal, but ordered prevention et suite, except for the last half century. Holland and Spain have renounced Paper Blockade since the decline of their maritime power. Grotius, Vattel and other writers who sustain real blockade, admit the Paper Blockade.
A Belligerent has the right to blockade the ports, bays, rivers, and coasts of an enemy. This is seemingly denied by the Berlin decree of 1806, which is limited to ports of war and fortified places. Some affirm that a blockade must contemplate reduction. This is an error. The general purpose is to cut off foreign commerce.
Hautefeuille has peculiar views of notification. Blockade, in his view, begins with the fact, and is made known to neutrals as they offer to enter. It ends with the fact, no matter what may cause the absence of the blockading fleet. (Here he is at variance with the best authorities.) A blockading force has the right to seize, sink or burn a vessel violating the blockade. Vessels in a port before a blockade can depart at pleasure with what is on board, but cannot complete their cargo. (United States treaties permit this.) French treaties permit a vessel to leave with cargo after bockade. The law of blockade extends to vessels of war; though this is not enjoined by any treaty. The French ordered it in their blockade of Mexico and the Argentine Republic.
Diplomatic notification of a blockade is the usage of civilized nations. It is only admissible when the fact exists. Of itself it has no value, and determines neither the beginning nor the end of a blockade. Diplomatic notification then is not blockade; it is not even essential. Blockade may exist without it; but