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pathy and support of few men except avowed philanthropists, and those lovers of peace who, by the same analogy, are the most mischievous manufacturers of war.
The very largest rule of belligerent right limits the voluntary destruction of life and property by the necessity of the occasion and the object of the war. Bynkershoek and Wolf insist that every thing done against the enemy is lawful, and admit fraud, poison, and the murder, as we should call it, of non-combatants, as permissible expedients for attaining the object of the war. But these are the writers who lay the foundations of the law of nations in reason and custom, and ignore that perception and judgment of right and wrong which God has communicated to man. It is true that, for the most part, and practically, we know the law of nations by reason and usage; but this law is founded not on that by which we know its decisions, but on justice; and reason must admit, and usage must adopt, whatever is clearly shown to be just and right, however this may be against precedent, and what has hitherto been held to be sound reason. There is no law without justice, nor any justice without conscience, nor any conscience without God. Grotius thus admirably expresses himself: “Jus naturale est dictatum rectæ rationis, indicans actui aliqui, ex ejus convenientiâ aut disconvenientiâ cum ipsâ naturâ rationali, inesse moralem turpitudinem, aut necessitatem moralem, ac consequenter ab auctore nature, Deo, talem actum vetari aut precipi. Actus, de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo a Deo necessario præcepti aut vetiti intelliguntur.” And this principle obtains greater force from the objections which have been made to it, and the efforts to establish another foundation for the law of nations. Thus the principle of utility is only a feeble attempt to give another name to the law of justice which God has implanted in His creatures ; and to pretend to found a law on general usage and tacit consent is to mistake the evidence of justice for justice itself.
But the application of the soundest possible principles is, perhaps, a greater difficulty than the ascertainment of the principles themselves; and it is in this application that the rights called the law of nations consist.
In the case of hostile acts directed immediately and finally against the enemy, there may be a greater infraction of the natural law of justice than in acts of hostility which, though directed against the enemy, immediately involve the rights
: De Jure Belli ac Pacis, I. i. c. i. & x, nn. I et 2.
and interests of neutrals. The former are examined by surrounding nations with less jealousy, and each has less interest in vindicating the law, than where themselves or other neutrals are the immediate or very proximate sufferers. The atrocities committed by such miscreants as General M‘Neil and Colonel Turchin awaken horror, but are not made the subject of remonstrance. The confiscation of private property at New Orleans more nearly touched rights which neutrals were interested in maintaining, and was made the subject of diplomatic correspondence. The attempt to destroy the harbour of Charleston called forth an earnest remonstrance from Lord Russell, which Mr. Seward was fain to meet by traversing the fact. But the seizure of neutral ships bound to neutral ports has aroused all the activity of diplomacy; and, whilst we are writing, the public are discussing the probabilities of satisfactory explanations which may justify such seizures, of ample satisfaction if wrong has been done, or of war. Thus we see that, though on abstract principles it may be as much against the law of nations to burn an undefended town, or to murder prisoners of war, as to confiscate property in which neutrals may be interested, or to destroy a port which is useful to the commerce of neutrals (and which, though blockaded, they have a right to enter in stress of weather), or to capture a neutral ship on the high seas without sufficient grounds of suspicion, yet these several acts meet with very different degrees of examination and resistance on the part of neutrals, according as they are more or less directly interested in them. In fact, the more nearly and directly the rights of neutrals are affected by the hostile acts of belligerents, the more clearly defined become the rights of all parties by the law of nations. In the case of the capture and confiscation of neutral ships and cargoes, we enter upon that part of belligerent rights which is most clearly defined, inasmuch as the law which limits the general right of injuring an enemy by cutting off his advantageous communications with the outer world has been fixed and illustrated by the largest body of authoritative decisions, and has been discussed under all its phases by the jurists of all nations.
It is to this branch of the law of nations that we propose at present to confine ourselves; and with respect to this we propose to consider consecutively the rights of belligerents with respect to (1) blockades, (2) contraband of war, (3) enemies' property at sea, and (4) right of visitation, search, and capture.
1. Blockades.—There is no belligerent right more incontestable, or which has been less contested, than that of blockading the enemies' ports. Neither is there any difference of opinion as to what a blockade is: it is the closing of the enemies' port by a naval force sufficient to prevent the ingress and the egress of vessels.
There is much popular misconception of the doctrine which has been upheld in the English prize-courts with respect to what have been called 'paper blockades ;' and the declaration of the plenipotentiaries who negotiated the Treaty of Paris has been considered to have affirmed a doctrine not previously held by the jurists of this country, or, at least, in opposition to English practice. In fact, in becoming a party to that declaration, this country has been considered to have yielded up something it had previously contended for with reference to the validity of blockades. But a careful comparison of the declaration with English decisions will not bear out this view.
The fourth article of the maritime declaration of 1856 says that blockades to be obligatory must be effective, that is to say, maintained by a force sufficient really to prevent the access of ships to the enemy's coast.
These words, taken in their most absolute sense, might seem to import that a blockade to be valid must
uniformly successful, and even that the access, as distinguished from the successful entry, of a neutral ship to the enemy's port, would destroy the effective character, and so the validity, of the blockade. But this interpretation would be unreasonable, and beyond the pretensions of those powers who have most strongly insisted on the quality of efficiency as necessary to the validity of a blockade. Russia, who was the principal party to the confederacy called the armed neutrality, described a place to be in a state of blockade “when it is dangerous to attempt to enter it.” This doctrine is identical with that which has always been maintained in the English prize-courts. In the case of the Betsy* (December the 18th, 1798) Sir W. Scott distinctly lays down that the first thing to be proved on a question of breach of blockade is “the existence of an actual blockade;" and he pronounces against the captors of the vessel on the ground that the island of Guadaloupe was not, at the time the Betsy entered the port (in which she was subsequently captured on the taking of the island), in a state of “complete investment and blockade," as was pretended by the captors. He says: “The word complete is a word of great energy; and we might expect from it to find that a number of vessels were stationed round the entrance of the port to cut off all communication.” He observed that the captors entertained but a very loose notion of the nature of a blockade when they pretended that the islands of Martinique, Ste. Lucie, and Guadaloupe could be completely blockaded by such forces as were employed against them. And in another case, that of the Arthur (June the 21st, 1814), the same judge says, speaking of that sort of irregular blockade which has been called a paper blockade : “The blockade imposed by it (the Order in Council of 26 April 1809] is applicable to a very great extent of coast, and was never intended to be maintained according to the usual and regular mode of enforcing blockades, by stationing a number of ships, and forming as it were an arch of circumvallation, round the mouth of the prohibited port. There, if the arch fails in any one part, the blockade itself fails altogether.”
4 1 Rob. 93.
These definitions and the maritime declaration of 1856 are to be understood in the same sense, so far as the usual and ordinary blockade is concerned. They both affirm a doctrine which has always been held by English jurists—that a blockade to be valid against neutrals must be supported by a force competent to prevent the ingress and egress of vessels. They neither of them affirm that this competency must be in every case effectual and successful, nor that an accidental intermission of actual blockade, as by stress of weather, puts an end to it.
But such a declaration may plausibly, if not conclusively, be considered to mean something beyond the recognition of a universally admitted law. And if so, this could hardly have been any thing but the denial of the validity of the unusual and irregular blockade declared and enforced by this country under the Orders in Council of 1809; or, at the very least, the admission of a principle which involved the surrender of the rights—if they were rights-previously exercised by this country. That is, in effect, to say, that, in defining a valid blockade, the English Government (so far as they are bound by a declaration in which their plenipotentiaries joined, but which is no part of the Treaty of Paris, nor has ever received the ratification of the Crown) have given up the right of that unusual and irregular blockade which was never considered by our courts, nor by the Government of the time, as properly a blockade, but as a retaliatory act of hostility, which would have been against the law of nations if it had not been retaliatory. In point of fact, those acts of hostility directed by the Orders in Council were not properly a blockade, nor would ever have been called so but that there happened to be no word in usage in the belligerent vocabulary which came so near to them. This was never lost sight of by Sir W. Scott, who speaks continually of“ this species of blockade” and of “this retaliatory blockade," and defends it only on the ground that, by the hostile act of France, England had acquired a right which she would not otherwise have possessed.
5 i Dodson, 425.
This question of paper blockades being of importance, the principle involved in them of still more importance, and the use of the word 'blockade' as applicable to the description of hostilities called a paper blockade being the subject of so much misconception, it may be worth while to consider what the blockade (improperly, as we think) so called, imposed by the Orders in Council of 1809, was, and what principle of right, or of the law of nations, it was founded on.
We have already quoted Lord Stowell's dictum in the case of the Arthur, in which he contrasts the two kinds of blockade. In another case he lays down, with admirable perspicuity, the state of facts out of which this irregular blockade grew, and the grounds on which alone it could be defended. In the case of the Success6 he says: “The relative situations of British subjects to Sweden must depend upon the Order in Council, by which not only the countries with which we are actually at war, but those also from which the British flag is excluded, are placed in a state of blockade. The blockade which has thus been imposed is certainly of a new and extended kind, but has arisen necessarily out of the extraordinary decrees issued by the ruler of France against the commerce of this country, and subsists, therefore, in the apprehension of the court at least, in perfect justice.” He here pleads necessity, from which he infers the justice of the proceeding, which he acknowledges to be new, and an extension of the ordinary proceeding, just as he had before called it in effect unusual and irregular. Sir W. Scott would not have given effect, as against neutral commerce, to any Order in Council which was contrary to the law of nations, in a court in which the law of nations was the supreme law. “The seat of judicial authority is indeed locally here,” he observed on one occasion, "in the belligerent country, according to the known law and practice
6 i Dod. 133.