178

CHAPTER IV.

OF THE RIGHT OF BLOCKADE.

EVERY belligerent has a right to blockade the ports of his enemy; but in order to render neutral vessels liable to the penalty which attaches to a breach of blockade, there must be, First, An actual blockade imposed by competent authority. Secondly, Notice thereof. Thirdly, A violation of the blockade. There remains to be considered, Fourthly, The penalty which attaches to a breach of blockade.

First, A blockade is an act of sovereignty; and the commander of a king's ship cannot extend it (a). But a commander going out to a distant station is presumed to carry with him such a portion of sovereign authority delegated to him, as may be necessary to provide for the exigencies of the service on which he is employed. On stations in Europe, where government is almost at hand to superintend and direct the course of operations, under which it may be expedient that particular hostilities should be carried on, it may be different. But in distant parts of the world it cannot be disputed, that a commander must be held to carry with him sufficient authority to act as well against the commerce of the enemy, as against the enemy himself, for the more immediate purpose of reduction. The authority of a commander in an expedition will not be affected, as to any but his own government, by his having acted irregularly in entering upon it without orders.

(a) Henrick and Maria, 1 Rob. 148.

However irregularly he may have acted, the subsequent adoption of his acts by government will have the effect of legitimating them, so far as the subjects of other governments are concerned. In such a case, a blockade imposed by a commander could not be impeached on the ground of want of regular authority; and however irregularly he might be deemed to have acted towards his own government, it is that for which he is in no manner answerable to other states; and it is not open to the subjects of other states to dispute the validity of the blockade (b). A mere proclamation that a place is invested is insufficient to constitute a legal blockade (c). For that purpose, it is necessary that the place should be invested by a competent force. The parties, who formed the armed neutrality, understood blockade in this sense, and Russia, who was the principal party in that confederacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter it (d). The West India islands were declared under blockade by Admiral Jarvis, but the Lords held, that as the fact did not support the declaration, a blockade could not be deemed legally to exist (e). A blockade commences from the time a force is stationed, to prevent communication (f). Where a vessel, coming out of a blockaded port, was captured by two armed ships, about seven miles from the coast, it was argued, that there was no blockade de facto, and that this small number of vessels only was a proof that there was no actual blockade. But the Court held, that it is not necessary, that the whole blockading squadron should lie in one tier; nor is it material that a vessel has escaped the rest; that these ships appeared to have been in the

(b) The Rolla, 6 Rob. 364.

(c) The Betsey, 1 Rob. 93.

(d) Per Cur. The Mercurius, 1 Rob. 84.
(e) Ibid.

(f) The Naples, 2 Dod. 284.

exterior line; and that, if there had been only these, it would have been quite sufficient (g). So, where a single frigate was employed on a blockade, where it appeared that the admiral on the station considered that ship completely adequate to the service to be performed (h). A legal blockade cannot exist, where no actual blockade can be applied. In the very notion of a complete blockade it is included, that the blockading force can apply its power to every part of the blockaded state. If it cannot, it is no blockade in that quarter on which its force cannot be brought to bear; and where such a partial blockade is undertaken, it must be presumed that this is no more than what was foreseen by the blockading state, which, nevertheless, thought fit to impose it to the extent to which it was practicable. The commerce, though partially open, is still subject to a pressure of difficulties and inconvenience. To cut off the power of immediate export and import from the ports of a country, is, in itself, no insignificant operation, although it may not be possible to exclude the benefit of an inland communication. If the blockade be rendered imperfect by this construction, it must be ascribed to the physical impossibility of the measure, by which the extent of its legal pretensions is unavoidably limited. On this ground it was held, that a cargo sent from Amsterdam to Embden by an internal canal navigation, with an ulterior destination to London, was not liable to confiscation by reason of the blockade of Amsterdam (i). If a blockade be not regularly maintained, but some unprivileged ships are allowed to come out, and others to go in, such a relaxation destroys the legal effect of the blockade. For a blockade is an uniform universal exclusion of all vessels not privileged by law. If such ships are

(g) The Neptunus, 1 Rob. 170.

(h) The Nancy, 1 Acton, 63.

(i) The Stert, 4 Rob. 65; The Julia, 1 Dod. 169, (n); The Ocean, 3 Rob. 297.

allowed to pass, others will have a right to infer that the blockade is raised (k). Thus, where a master entered a port without any attempt made by the ships that were on the station to prevent him from going in, and in other cases no force had been applied for the purpose of enforcing the blockade, and permission was given to go in; it was held, that the purpose of blockade being to prevent access by force, if the ships stationed on the spot to keep up the blockade will not use their force for that purpose, it is impossible for a Court of justice to say that there was a blockade actually existing (7). So where a blockade was alleged to exist de facto, and a vessel, that had sailed out of the port in full view of the squadron, that had before been employed in the blockade, without being stopped, was seized some time afterwards by a privateer, in consequence of a subsequent notification; it was held, that there was no proof of actual blockade (m). But a temporary and forced secession of a blockading force, from the accidents of winds and storms, is not sufficient to constitute a legal relaxation of a blockade (n). A blockade is to be considered as legally existing, although the winds occasionally blow off the blockading squadron. That is an accidental change, that must take place in every blockade. But the blockade is not thereby suspended; the contrary is laid down in all books of authority, and the law considers an attempt to take advantage of such an accidental removal, as an attempt to break the blockade, and as a mere fraud (o); for it is not an accidental absence of the blockading squadron, nor the circumstance of being blown off by the wind, (if the suspension and the reasons of the suspension are known), that will

(k) Per Cur. The Rolla, 6 Rob. 373.

(1) The Juffrow Maria Schroeder, 3 Rob. 155; The Vrouw Barbara, 3 Rob. 158, (n).

(m) The Christina Margaretha, 6 Rob. 61.

(n) Per Cur. The Juffrow Maria Schroeder, 3 Rob. 155.

(2) The Columbia, 1 Rob. 154.

be sufficient in law to remove a blockade (p). When a blockading squadron is driven off by adverse winds, neutrals are bound to presume that it will return, and that there is no discontinuance of the blockade. But where a blockading squadron has been driven off by a superior force, there is no blockade actually existing; and a neutral is not bound, under such circumstances, to presume a continuance of the blockade, nor to act upon the supposition, that the blockade will be resumed by any other competent force. When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade; there is no reason to suppose, that such a circumstance would create a change of system, since it could not be expected, that any blockade could continue many months without being liable to such interruptions. But, when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force; and which introduces therefore a very different train of presumptions, in favour of the ordinary freedom of commercial speculations. In such a case, the neutral merchant is not bound to foresee, or to conjecture, that the blockade will be resumed; and therefore, if it is to be renewed, it must proceed de novo, by the usual course, and without reference to the former state of facts, that has been so effectually interrupted. In such case, the former blockade and notification are extinct. The raising of the former blockade by a superior force is a total defeasance of that blockade, and of its operations. There cannot be a more effectual raising of a blockade; and it must be renewed by notification, before foreign nations can be affected with an obligation to observe it as a blockade of that species still existing. The mere appearance of another squadron will not restore it, but the same measures are required for a recommence

(p) The Frederick Molke, 1 Rob. 86.