of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as universal law upon the question."7

The fact was that, by the hostility of France and the subservience of the European powers, the English flag was excluded from neutral ports, and as a retaliatory measure England excluded, as far as she could, other neutral flags from those ports. Neutrals having to a certain extent joined in a hostile act to England, she to a certain extent retaliated. She said, If my flag is excluded, others shall be.

No blockade, regular or irregular, or of any kind whatever, injuriously affecting, as it does, the commerce of neutrals, is defensible on any other ground than that it is judged necessary by a belligerent; and the belligerent is the judge of the necessity to deprive the enemy of the benefit of trade and to weaken his resources, as means of procuring a just termination of the war. In the case of a regular blockade, acts such as search, seizure, and confiscation, in themselves hostile, but not directed against a neutral with a hostile animus (in which case they would constitute acts of irregular but complete hostility), are and must be submitted to by neutrals, because it is right and just, and conducive to the peace and welfare of the world, that the belligerent should carry on war. If that is denied, it is another question, which must be raised on its merits; but whilst the neutral continues a neutral,-a looker-on, and not a party to the war, he cannot plead the loss or inconvenience to himself as giving a character of hostility to the acts by which he is injured. If any thing beyond ordinary acts of hostility are committed by one belligerent, the enemy acquires the right of retaliation; and those neutrals who, without a hostile animus, suffer the exercise in their own case of the extraordinary acts of hostility which constitute what may be called the provocation, cannot justly complain if they suffer from the retaliation.

Those who will be ready to admit that Sweden, for in

7 The Maria, 1 Rob. 350.

stance, in allowing English commerce to be excluded from her ports, had laid herself fairly open to the attempt of England to exclude other commerce also, will at first sight perhaps hesitate to admit that the commerce of a neutral-the United States of America, for instance-who had not shown the same subserviency to the enemy of England, ought in justice to suffer any part of the loss or inconvenience which Sweden could not justly complain of. But if this retaliatory measure of blockade were justifiable as respects Sweden, it must be justifiable as respects the United States of America, on the same ground that unoffending neutrals must put up with the losses and inconveniences of a blockade of the usual and unexceptional kind. The damage to Sweden may be looked at as a sort of reprisal; that to the United States of America as the inevitable consequence only of a justifiable act of hostility to France, and of reprisal as against Sweden.

It is to be hoped that no meaning can be attached to the maritime declaration of 1856 subversive of the rights of belligerents to such retaliatory acts as those which have been improperly called paper blockades. If England were primá facie committed by such a declaration to any restriction of her rights under the law of nations, it would be well worth while to examine into its efficacy and validity. Without doing this, we may suggest that the declaration of plenipotentiaries, who had no powers ad hoc, cannot, without the ratification of the sovereign, be held to outweigh the great interests which are protected by the law of nations, or to deprive this country of the benefit of the application of the principles on which it is founded.

Dismissing the subject of paper blockades, and returning to the blockade proper, it is now universally admitted that to constitute the offence of the violation of a blockade, the ordinary penalty of which is confiscation, three things must be shown: 1st, that the blockade was actual and effective; 2dly, that it was known to the party charged with violating it; 3dly, that some act of violation was committed."

The knowledge of the party violating a blockade need not be absolutely proved; it is sufficient if he were in circumstances to know it: as that he came from a port at which it was well known, or that it had been notified to the sovereign whose subject he is, previous to the departure of the vessel.

An act of violation is the doing of any thing whatever to

7 The Betsy (1798), 1 Rob. 93.

wards entering the blockaded port-as sailing for it. Thus a vessel sailing for Charleston may be as justly captured outside English jurisdiction off one of our own ports as if it were found in the channel of Charleston harbour evidently intending to steal in. The intention of violation followed by some act in furtherance of the intention, and the vessel being outside the territorial jurisdiction of a neutral sovereign, subject it to capture.

The validity of the blockade itself depends, as we have seen, on its effective character. It is better and more regular that it should be notified to neutral sovereigns, but this is a convenience and a benefit, not a necessity.

The blockade may be temporarily interrupted by unavoidable accident (as the dispersion of the blockading force by storm), without losing its character of validity, provided the commander of the blockading force uses due diligence, and succeeds in restoring its effective character. That is to say, no neutral actually captured in the interval of inefficiency, or on the return of a sufficient force, can successfully plead the insufficiency of the blockade.9

But if the blockade be broken by the superior force of the enemy, its inefficiency is conclusively established, and there is an end of it. If the belligerent become strong enough afterwards to blockade the port, he must begin de novo.10

As respects the validity of a blockade, and the power thence derived of capturing and confiscating a neutral vessel which knowingly commits an act of violation, there is no

8

In the case of the Mercurius (1798), Sir W. Scott says: "It is said this passage to the Zuyder Zee was not in a state of blockade; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war 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 into it." Rob. Adm. Rep. i. 84.

9 It is not an accidental absence of the blockading force, nor the circumstance of being blown off by wind (if the suspension and the reason of the suspension are known), that will be sufficient in law to remove a blockade." The Frederick Molke, Rob. i. 87; see also the Columbia, ib. 154.

10 "When a squadron is driven off," says Sir W. Scott, "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 would continue many months without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises. . . . . . 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, which has been so effectually interrupted." The Hoffnung, 6 Rob. 117; see also the Triketen, 6 Rob. 65.

point of more importance than its universality. It is a belligerent right to cut off all neutrals from trade with the enemy's ports, if the belligerent is able to do it effectually; but there is no right to distinguish between one neutral and another. This character may be thus expressed: A blockade is a blockade, and not partly a blockade and partly not. And not only must the blockade be absolute, and undistinguishing as to vessels considered as classed under the denominations of neutral sovereignties, but it must be absolute and universal as respects the vessels of any neutral sovereign. And for the purposes of a blockade the subjects of the belligerent sovereign are classed with neutrals; or rather, perhaps, any relaxation of the blockade in their favour would, if degrees were possible in an absolute rule, be more fatal to the validity of a blockade than a relaxation in favour of other interests. A blockade must be enforced in fact, or it ceases to be one. The intention of blockading, and the presence of an adequate force, are essential, but not sufficient: the force must be used, and the intention must be carried out.

In the case of the Juffrow Maria Schroeder Sir W. Scott assumed the intention of the Government and the Admiralty, but it appeared that the blockade was not in fact enforced. Ships were stopped and examined, and suffered to go into the port pretended to be blockaded. "If," said Sir W. Scott, "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 there was a blockade actually existing at that time.' 12 In another case, that of the Rolla, he says: "For what is a blockade but a uniform universal exclusion of all vessels not privileged by law? If some are permitted to pass, others will have a right to infer that the blockade is raised. If it was shown, therefore, that ships not privileged by law have been allowed to enter or come out, from motives of civility or other considerations, I should be disposed to admit that other parties would be justified in presuming that the blockade had been taken off."13

We believe that, if this subject is looked at more broadly, it will be seen that what really lies at the bottom of the exemption of the neutral master from the penalty for violation of a blockade supported by a sufficient force, is that the action of the commander in allowing some vessels to pass proves the

13 6 Rob. 372; see also the Christina Margaretta, 6 Rob. 62, and the Vrow Barbara and the Henricus, cited in the note, Rob. 158, 159.

absence of the intention of blockading; so that, in point of fact, we may modify what has just been said, by requiring only for a valid blockade the intention of blockading and the presence of a sufficient force. If the force were not used, this is not the absence of a third necessary condition to the validity of a blockade, but conclusive evidence of the absence of intention-of one of the two essential characters of a blockade.

If a blockade is not universally enforced, the neutral master has a right, as it is generally put, to expect that he will be allowed to enter. But the reason of this seems to be that he has a right to conclude that there is really no blockade, because the intention of blockading is evidently wanting. If others go in, he is in a position not so much merely to hope that he will be allowed to enter, as to enter on the ground that there is no blockade. He might be stopped, and if informed of the existence of a blockade dating from that moment he must go elsewhere, but he has not incurred the penalty of forfeiture. If he were stopped and forbidden to enter, on the ground of the preëxistence and continuation of the pretended blockade, and were captured on persevering in his attempt to enter the port, we conceive that he would not be condemned by a prize-court, judging the case in accordance with the law of nations.

We cannot follow the right of blockade and the penalties of violation with any minuteness. It is rather our object to discuss its principles, and to consider their application to any cases of present public interest. We shall therefore say nothing on the penalties of violation or the consequences of illegitimate capture, as between captors and the neutral owners of vessels, nor about those mixed cases in which the vessel and the cargo fare differently in a prize-court.

A blockade and all its incidents, down to the confiscation of neutral property are high acts of sovereign authority, which can be tried over again by no earthly tribunal of appeal. They are finally decided by the prize-court constituted by the belligerent sovereign, and acting under his authority. Diplomacy may question the legality of the acts of a belligerent, or may argue against the findings of his prize-courts, as against the commonly received and the best-considered interpretations of the law of nations; but if diplomacy fail to induce a sovereign belligerent to revoke or modify his own judgments, it cannot cite him to any other regularly constitated tribunal. The only appeal is to the sword.

The better the law of nations is understood, and the more