such cruisers, and that "the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search." The resistance to search in this particular case was very slight. No shot was fired and no blood was shed. But there can be no doubt of the soundness of the doctrines laid down by the great English judge, whatever may be thought of the severity with which he applied them. The Danish jurist Schlegel, who attempted to argue against them, relied upon a distinction between a Positive Law of Nations and a Natural Law of Nations. He admitted that the former allowed the search and capture of neutral vessels; but asserted that the latter knew nothing of such a right, and based upon this presumed contradiction the conclusion that belligerents cannot have a greater latitude in this respect than neutrals consent to allow. Weak as this reasoning is, it was good enough for the Armed Neutrality of 1800, which added to the four articles of its predecessor a fifth, to the effect that the declaration of an officer in command of a neutral ship of war that there was nothing contraband on board the vessels convoyed by him should suffice to prevent belligerent search.2 The second league of the Baltic powers came to an end in June, 1801, when Russia signed a treaty with Great Britain, which admitted a right to search neutral vessels under convoy, but stipulated for a special mode of procedure. The papers of the convoyed vessels were first to be examined on board the convoying vessel, and only if reasons for suspicion arose were the merchantmen themselves to be searched. The constant shifting of sides in the great continental wars soon brought this treaty to an end; and when fresh arrangements were made they were silent on the subject of convoy. The matter was not mentioned in the Declaration of Paris. Each 1 Visitation of Neutral Vessels under Convoy (English Translation published in London, 1801), pp. 67-70. 2 C. de Martens, Recueil, II., 215–219. 3 Ibid., VII., 263. state is free to follow whatever policy seems good to it; and there is grave danger of serious disagreement in the future. England still takes her stand upon the integrity of the right of search; but all the great maritime powers of the European continent have instructed their naval commanders to be satisfied with the declaration of a convoying officer. Their publicists argue that International Law obliges belligerents to accept this security, and declare that any attempt on their part to pass over it and use actual inspection to verify the character of escorted merchantmen and cargoes would be an unwarrantable outrage.1 The United States occupy an intermediate position. Their legal doctrine is English, their executive policy continental. Possibly a way out of the difficulty may be found by the general adoption of the rules contained in their Naval Regulations with the addition of a few provisions taken from the Anglo-Russian treaty of 1801. An American officer in command of a convoying vessel must be furnished with a list of the vessels under convoy, particulars of their ownership and nationality, and proof that any ship bound for a belligerent destination carries no contraband of war.2 If he were ordered in addition to permit search when circumstances of grave suspicion revealed themselves and to send an officer to accompany the searching party, the rules he followed might well become the law of the civilized world. Belligerents ought not to be content with the word of an officer who may easily be deceived, or may be acting in good faith on views of the nature of contraband very different from their own. The substitution of the responsibility of the neutral state for the responsibility of the neutral individual, which Hautefeuille claims as the great merit of the convoying system, is in reality its great defect. It adds to the existing opportunities of quarrel between belligerents and neutrals a new and exasperating 1 e.g. Ortolan, Diplomatie de la Mer, Liv. III., Ch. VII.; Hautefeuille, Droits des Nations Neutres, Tit. XII., Ch. I., Sec. II. 2 Glass, Marine International Law, p. 166. one. But if it were possible to retain the individual responsibility of the neutral merchant and ship-owner, and yet avoid, except in the last resort, the annoyance and friction of a search of each separate ship, the prospects of future peace would undergo a sensible improvement. It is generally agreed that a neutral cruiser ought on no account to offer convoy to the merchant vessels of either belligerent. Its commander may possibly be justified in taking under his escort the ships of other neutral states; but it is difficult to see on what principles he can claim for them immunity from belligerent search. Neutral merchantmen attach themselves at their peril to a fleet convoyed by belligerent cruisers. In so doing they render themselves liable to capture by the war ships of the other side. The act of sailing under belligerent convoy is in itself a violation of neutrality, and the vessel which is guilty of it may be condemned by a Prize Court, even though her voyage would have been perfectly innocent had she pursued it alone. tory of Blockade. CHAPTER V. BLOCKADE. § 269. BLOCKADE as a warlike operation governed by special rules is wholly maritime. On land it is always an offence to The nature and his attempt to pass through the lines of an army without permission; and, if they happen to surround a fortress, the operation of ordinary rules cuts off all communication between it and the outside world. At sea, however, passage is not usually interdicted; but maritime law gives to a belligerent the right to prevent access to or egress from a port of his enemy by stationing a ship or a number of ships in such a position that they can intercept vessels attempting to approach or leave the port in question. As this restriction applies to neutral vessels, the law of blockade is a very important part of the law of neutrality. It deals with a particular aspect of the conflict before remarked upon between the belligerent claim to carry on unimpeded warlike operations and the neutral claim to carry on unrestricted trade.1 Each side has endeavored to forward its interests at the expense of the other. sometimes acted as if the mere issue of a proclamation to the effect that the enemy's ports, or some of them, were under blockade gave them the right to intercept neutral trade; and sometimes they have supported such a proclamation with a notoriously insufficient force. The attempts of neu 1 See § 265. Belligerents have trals in the contrary direction are not so numerous and have not been carried so far; but instances are not wanting in which they have sought to surround the right to blockade with impossible conditions, or even to deny its existence except as an incident of the active operations of a siege. In the early days of modern International Law it was a question whether powerful nations, when at war, would allow neutrals to trade at all with their enemies; and not till the latter half of the eighteenth century were the limits of their power to cut off such trade clearly defined by Prize Courts. The matter was dealt with by the Armed Neutralities of 1780 and 1800. The first insisted very properly that no port should be considered blockaded unless there was evident danger in entering from the proximity of a belligerent squadron, but added the inadmissible proviso that the blockading vessels must be stationary. The second repeated the words of its predecessor, and placed at the end of them the further restriction that no lawful capture could be made, unless notice had been given to the peccant vessel by the commander of the blockading squadron and she had afterwards attempted to enter.2 These provisions were a mixture of good law and bad. They favored neutral interests unduly; but in the stress and turmoil of the wars with Imperial France the pendulum swung much too far towards the other side. The British Orders in Council of 1806 and 1807, and the Berlin and Milan Decrees of Napoleon, extended the severities of blockade in the most unwarrantable manner. Great Britain placed in the position of blockaded ports all places which excluded her commercial flag, and France declared the British Isles to be in a state of blockade at a time when she dared not send a single squadron out to sea for fear of capture by the victorious British navy. The United States, as the chief neutral power, suffered very severely, and made loud and 1 See § 266. 2 C. de Martens, Recueil, I., 193, 194 and II., 215–219. |