be injured by articles of contraband which the enemy actually receives from ships having an ostensibly neutral destination; nor, on the other hand, will a powerful neutral allow the property of his subjects to be seized on the high seas when those goods, although partaking of the character of contraband, have a bona fide neutral destination. In the cases above cited the ultimate destination of the goods was so clearly hostile as to make it difficult, if not impossible, for the British Government to maintain the position that the goods of its subjects had been seized in the prosecution of an entirely innocent voyage, and were so entitled to the protection which that government invariably accords to its subjects when their rights have been wrongfully invaded by a foreign state.

Occasional Contraband. During the disturbed period intervening between the outbreak of the French Revolution in 1789 and the Treaty of Vienna in 1815, the old usages of international law were subjected to a severe and constant strain. This was due, in part, to the frequency and magnitude of the wars that were carried on, in which, at times, nearly all of the European states were participants; and, in part, to the great disparity that existed in the relative naval and military power of the principal belligerents. During the greater part of this period the military supremacy of France was successfully maintained against every effort to overthrow it by operations on land; on the other hand, the supremacy of England at sea was so firmly established as to secure even more general recognition. As these powers were generally opposed to each other, it is not remarkable that they should have attempted to interpret the rules of war, each in a sense favorable to its own interests; and as the one was strong where the other was weak, neither was able to interpose an effectual check upon the pretensions of the other. The result was that the rules of capture, on land and sea, underwent a considerable modification in the interest of belligerents, and to the prejudice of the rights of neutrals, as those rights were then understood. This influence upon the law of maritime capture was the more powerful from the fact that the northern states of Europe,

and, to a certain extent, the United States as well, entered into general commerce largely as producers of raw materials, which were consumed by the principal belligerents, and so were obliged to find a market in belligerent territory. Thus, while these states were generally neutral, they were not strong enough at sea, even when acting in concert, to assert effectively their views of neutrality, or even to successfully maintain their neutral rights.

Under these circumstances, not only was neutral commerce likely to suffer from any extension of the definition of contraband, but the commercial prosperity of neutral states was made to depend, in no small degree, upon that definition being closely restricted in its application to neutral property. Such an extension was effected by the application of the doctrine of occasional contraband, by the English prize-courts, to cargoes of neutral merchandise. According to this rule articles were condemned which had previously either been exempt from seizure, or, if regarded as contraband, had acquired that character only in exceptional cases, where the circumstances pointed clearly to an undoubtedly hostile destination. The articles so condemned were those usually classified as naval stores and provisions; and neutral states resisted the application of the new rule, partly because of the extreme hardship of the case, and partly because it was not, and had never been, generally recognized as a rule of international law.'

1 "By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country, they are not, in general, contraband; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed con

traband. Another exception from being treated as contraband is where the provisions are the growth of the neutral exporting country. But if they be the growth of the enemy's country, and more especially if the property of his subjects, and destined for enemy's use, there does not seem any good reason for the exemption; for, as Sir William Scott has observed, in such a case the party has not only gone out of his way for the supply of the enemy, but he has assisted him by taking off his surplus

The English prize-courts admitted the force of the objection and the irregularity of the practice by a somewhat less rigorous application of the new rule, and certain mitigating circumstances were recognized as creating presumptions in favor of innocence. In their application of the modified rule it was held that if the goods were produce of a neutral state, and were shipped, as raw materials, to strictly commercial ports, these facts were allowed to weigh against condemnation and in favor of restoration.'

The Rule of Pre-emption. At a later period the original doctrine was still further modified by the adoption of the rule of pre-emption, by which the prize-courts, in some cases, decreed the purchase of the cargo at its value at the port of origin, together with freight and demurrage, with a fair mercantile profit, usually ten per cent., instead of condemning it as contraband of war.' The rule, as modified, continued to be enforced until the close of the period of the Napoleonic wars. Their justice was not discussed at the Congress of Vienna, and the Treaty of Vienna contained no provisions upon the subject of maritime capture or contraband of war. They never received such general sanction as to entitle them to be accepted as rules of international law. On the other hand, they were objected to from the first, and so seriously as to lead to the formation of alliances to resist their application. They are no longer seriously maintained as rules of international obligation; and it may safely be said that no modern state would permit the property of its subjects to be confiscated by the operation of rules the justice of which it did

commodities."-The Commercen, 1 Wheaton, 382 [388]. "Admitting that provisions are not, in general, contraband of war, it is clear that they become so when destined to a port of naval equipment of an enemy, and, a fortiori, when destined for the supply of his army." -Maisonnaire vs. Keating, 2 Gal

lison, 335; III Dig. Int. Law, § 370.

The Jonge Margaretha, Robinson, Adm. Rep. p. 189; III Phillimore, §§ 249-259.

See Admiralty Instructions of June 8, 1793, and the British Orders in Council of April, 1795; Dana's Wheaton, §§ 485-501, note 226; II Halleck, pp. 261-266.

not recognize, or by the exercise of rights which were not sanctioned by international law.1

References. For further information upon this subject the student is referred to Vattel, liv. iii. chap. vii. §§ 112, 113; II Azuni, chap. ii. pp. 144-157; Hall, part iv. chaps, v. vi.; Boyd's Wheaton, §§ 476-508; V Calvo, §§ 2708-2826; Halleck, chap. xxvi.; Manning, book v. chaps. vii. viii.; III Phillimore, pp. 387-472; II Wildman, pp. 210-245; Dahlgren, pp. 65-100; Woolsey, §§ 193-199; Nys, "La Guerre Maritime," chap. iii.; Glass, Marine International Law," pp. 464-508; II G. F. De Martens, §§ 314-319; II Ortolan, chap. vi.; II Twiss, chap. vii.; Lawrence, "International Law." chap. vi.; Dana's Wheaton, §§ 476508; Lawrence's Wheaton, §§ 476-508; III Digest of International Law, 88 368-391; Wheaton, "History of the Law of Nations," pp. 115, 134, 313-401; Klüber, §§ 288-292; Heffter, pp. 296, 304; and II Hautefeuille, pp. 69-189. See also the article entitled "Les Droits de la Contrebande de Guerre," by M. R. Kleen, vol. xxv. “Revue de Droit International," PP. 7-34, 132-161, 239-286, 389-409; vol. xxvi. Ibid. pp. 214-218; vol. xxvii. Ibid. pp. 58-75; R. Westlake, vol. ii. Ibid. p. 614; Taylor, International Law, and Oppenheim, title “Contraband.”

1 III Phillimore, §§ 267-270; Manning, pp. 359, 393; V Calvo, 88 2790-2795; the Sarah Christina,

1 Robinson, Adm. Rep. p. 238; the Haabet, a Ibid. p. 174.

CHAPTER XIV

BLOCKADE: BREACH OF BLOCKADE

Nature of the Restriction. The most extensive, and in some respects the most effective, restraint which the law of nations permits a belligerent to impose upon neutral commerce is that involved in the exercise of the right of blockade. The rules of maritime capture permit him to seize upon the high seas certain contraband articles, which are destined to the enemy's use, or are calculated to aid that enemy in his military operations. But non-contraband articles are exempt from seizure, even though they have a belligerent destination, and the ship incurs no liability whatever. By the establishment of a blockade, however, he may not only prevent the introduction of contraband articles, but may absolutely prohibit access to his enemy's coast, and so, for the time, interrupt all commercial intercourse with the outside world.'

Definition. The interruption or suspension of neutral commerce which results from the forcible closing of a belligerent's ports or harbors is called a blockade. A belligerent, in the exercise of this right, may choose any port or harbor of his enemy, any portion of his coast line, or any entrance to a river, gulf, or bay, situated entirely within the territorial limits of a hostile state. He may not, however, by the establishment of

1 II Ortolan, liv. iii. chap. ix. pp. 326, 327; Upton, pp. 275, 276; V Calvo. §§ 2827-2829; Snow, p. 148.

"One belligerent engaged in actual war has a right to blockade the ports of the other, and neutrals are bound to respect that right. "The Prize Cases, 2 Black, 35. "To justify the exercise of this right.

and legalize the capture of a neutral vessel for violating it, a state of actual war must exist, and the neutral must have knowledge or notice that it is the intention of one belligerent to blockade the ports of the other."- Ibid. To create this and other belligerent rights, as against neutrals, it is not