be transshipped at Nassau into some vessel more likely to succeed in reaching safely a blockaded port than the Springbok; that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage; and that the liability to condemnation, if captured during any part of that voyage, attached to the cargo from the time of sailing.' "All the above-quoted legal display rests on a judicial sophism. In respect of the cargo between the port of loading and the suspected port of delivery (a port which the prize court was unable to specify), there is, forsooth, but 'one voyage.' Now, a voyage in the widest application of the word, has never been held in maritime legal phraseology to comprise more than the space traversed by a vessel between its ports of loading and unloading. But to pretend that the 'voyage' still continues after the cargo has been discharged and the commercial operation has been completed is, indeed, the very acme of the judicial temerity. The proposition is rendered more glaringly preposterous by the court's admission that the voyage 'as to the ship' ended at Nassau. The voyage is at an end 'as to the ship,' yet it is continuous as to the cargo.' This is startling law. The proposition seems more monstrous and absurd when we bear in mind that no transshipment having taken place, it was utterly impossible to say whether or not the cargo would be sent forward, or, if so sent forward, to what port it might go. To tack such a hypothetical, indefinite, imaginary voyage without date of departure or fixed destination on to the completed voyage, and thus to convert the real port of destination (Nassau) into an intermediate port, is to misconstrue the facts of the case and to establish the right of confiscation by a wretched play upon words. 6 "To hold a vessel and cargo liable to capture simply because it is on its way to a blockaded port is, in our opinion, a departure from the true principles of international law. What, we ask, was the use of the congress of Paris in 1856 abrogating paper and other fictitious blockades, if England and the United States persist in maintaining that the bare intent constitutes a breach of blockade, and that the setting sail for a blockaded port establishes that intent. The paradox is altogether indefensible in the case of a vessel sailing from one neutral port to another neutral port. According to the English and American doctrine it would, under the circumstances, be necessary to prove that the vessel's destination was simulated; the intent would be inferred from the care taken to conceal it and to mislead the belligerent as to the real destination. But even in an English prize court the captor would be required to produce the clearest proof of the alleged concealed destination. There would be no guessing no surmising, no inferring, no jumping at illogical conclusions, as in the case of the Springbok. In the case of that vessel the Supreme Court's judgment is in the highest degree arbitrary and unjust. Firstly, the blockade is held to have been broken because there was an intention to break it; secondly, the neutral vessel is held to have had the intention to break the blockade, not because it was proceeding to a certain blockaded port, but because though bound to a neutral port it might subsequently proceed thence to 'some blockaded port,' or the cargo might be sent forward by transshipment to 'some blockaded port.' No! Such doctrines are repugnant to every principle of international justice. No more in the United States than in Europe are such subtleties compatible with the law of nations. The case of the Springbok is one of those upon which public opinion, even in the United States, has already decisively condemned the judges. "The American people are too enlightened, they possess too much practical sound sense, not to perceive that if the doctrine of their Supreme Court were generally adopted, if the Springbok precedent were followed by future belligerents, neutral commerce would be completely crippled, paralyzed, or destroyed on the advent of a maritime war. For instance, American coasting vessels carrying cotton from New Orleans to New York would be liable to capture while on that honest voyage, because the cotton might subsequently be forwarded to some blockaded port and some belligerent cruiser suspected such ulterior destination. In time of war, courage-robur et we triplex-would be necessary to risk a voyage from one neutral port to another. If the merchants in countries engaged in war were to abstain from risking their goods at sea because private enemy property does not yet enjoy immunity from capture, and if neutral vessels were laid up, and their owners renounced a lucrative neutral carrying trade out of fear of being seized, as the Springbok was, on suspicion of being engaged on a continuous voyage' to some undefined blockaded port, what would become of maritime international trade? What, we ask, will be the position of those nations which, in consequence of their need of foreign supplies, cannot possibly dispense with that trade? The subject is a very serious one. It deserves, it commands, the meditation and action of statesmen, and especially of American statesmen." The "synopsis" of the Springbok's cargo shows, that out of a cargo of £65,677, only £700 was assigned to goods which might be considered contraband. On the same topic may be consulted Mr. J. C. Bancroft Davis, "Tribunaux de prise aux etats Unis, Paris, 1878. The ruling of the Supreme Court in the Springbok case, together with the opinions on it by foreign jurists, are given above at large, in consequence not merely of the extraordinary attention the decision of the court has attracted abroad, but of the vast importance of the issue to neutral rights. The decision in this case, so it was said by Bluntschli, at once one of the most liberal and most accurate of modern publicists, has inflicted a more serious blow on neutral rights than did all the orders in council put together. As is shown by the prior note, the disapproval of this famous decision, so strongly expressed by Bluntschli, is shared with more or less intensity by all the eminent publicists of the continent of Europe whose attention has been called to it, while even in England, from whose precedents the decision was in part drawn, it is treated by high authorities as aiming an unjustifiable blow at neutral rights. As to the opinion of the court, the following remarks may be made: (1) The opinion of the court has not that logical precision which enables us to discover how far the question determined involves a question of blockade. It cannot be clearly ascertained from the opinion whether the goods confiscated were held good prize because it was intended that they should run the blockade of some particular blockaded Confederate port, or because they were contraband destined for belligerent use in the Confederacy. (2) The decision was approved by a bare majority of the court, and among the dissenting judges was Mr. Justice Nelson, whose knowledge of international law was not equaled by that of any of his associates, and Mr. Justice Clifford, distinguished as much for strong sense as for his practice in maritime cases. That the case, in any view, was not, in the hurry of business, considered with that care which its great impor tance, as it now appears to us, demanded, is evident not merely from the looseness and vagueness of its terms, but from the fact that no dissenting opinion is recorded, nor the arguments of counsel even noted. It is a matter of great regret, also, that the masterly argument of Mr. Evarts, before the Mixed Commission afterwards instructed to act on this class of claims, and printed in the proceedings of that commission (vol. xxi, Lib. Dept. of State), an argument which is one of the ablest expositions of international law in this relation which has ever appeared, and is recognized as such by the highest foreign authority, had not been delivered before the Supreme Court so as to have enabled that tribunal to become aware of the great gravity of the question involved. (3) While the great body of foreign jurists, British as well as continental, protested against the decision, it is not a little significant that at the hearing before the commission the British commissioner united in affirming the condemnation. Down to this hearing it was understood that the British Government, acting under the advice of its law officers, had disapproved of the condemnation. Mr. Evarts' argument, however, went to show that the condemnation, while perhaps sustainable under the British system as defined by Sir W. Scott, was in antagonism, not merely to the doctrines set forth in Sir W. Scott's time by the United States, but to those modern restrictions of blockade, by which alone the rights of neutral commerce can be sustained against a belligerent having the mastery of the seas. It is not strange that the British commissioner should have declined to set aside a ruling so consistent with the older British precedents and so favorable to belligerent maritime ascendancy. (4) The decision cannot be accepted without discarding those rules as to neutral rights for which the United States made war in 1812, and which, except in the Springbok and cognate cases, the executive department of the United States Government, when stating the law, has since then consistently vindicated. The first of these is that blockades must be of specific ports. The second is that there can be no confiscation of non-contraband goods owned by neutrals and in neutral ships, on the ground that it is probable that such goods may be, at one or more intermediate ports, transshipped or retransshipped, and then find their way to a port blockaded by the party seizing. See infra, § 388, where the question of "continuous voyages" is more fully discussed. (5) The ruling is in conflict with the views generally expressed by the executive department of the Government of the United States, a department which has not merely co-ordinate authority in this respect with the judiciary, but is especially charged with the determination of the law of blockade, so far as concerns our relations to foreign states. See citations in this chapter, and also supra, §§ 238, 329a. To agree to perform a duty effectively is a very different thing from agreeing to perform it absolutely; the latter engagement is a guarantee, the former is an engagement to perform the duty unless casus intervene. A carrier, for instance, does not insure against a sudden frost which a prudent person could not foresee, nor against peculiar and extraordinary storms; nor even against defective performance by employés, when this defectiveness arises from extraordinary interferences not to be prognosticated. And so it is with blockades. A blockade to be effective need not be perfect. It is not necessary that the beleaguered port should be hermetically sealed. It is not enough to make the blockade ineffective that on some particularly stormy night a blockade-runner slid through the blockading squadron. Nor is it enough that through some exceptional and rare negligence of the officers of one of the blockading vessels a blockade-runner was allowed to pass when perfect vigilance could have arrested him. But if the blockade is not in the main effective-if it can be easily eluded-if escaping its toils is due not to casus or some rare and exceptional negligence, but to a gen eral laxity or want of efficiency-then such blockade is not valid. Whart. Com. Am. Law, § 233. "In some cases where a blockading squadron, from the nature of the channels leading to a port, can be eluded with ease, a large number of successful evasions may be insufficient to destroy the legal efficiency of the blockade. Thus, during the American civil war the blockade of Charleston was usually maintained by several ships, of which one lay off the bar between the two principal channels of entrance, while two or three others cruised outside within signaling distance. This amount and disposition of force seems to have been thought by the British Government amply sufficient to create the degree of risk necessary under the English view of international law, although, from the peculiar nature of the coast, a large number of vessels succeeded in getting in and out during the whole continuance of the blockade." Hall, Int. Law, 618, citing Bernard, Neut. of Great Britain, chaps. x and xi. "If approach for inquiry were permissible, it will readily be seen that the greatest facilities would be afforded to elude the blockade." Field, J.; The Cheshire, 3 Wall., 235; S. P., The Spes, 5 C. Rob., 80; The Charlotte Christine, 6 C. Rob., 101. That the President of the United States may declare a blockade without the action of Congress, see The Sarah Starr, Blatch. Pr. Ca., 69; The Amy Warwick, 2 Sprague, 123; S. C., 2 Black., 635. (2) MUST BE brought to PRIZE COURT. § 363. The subject and necessity of prize courts in cases of belligerent seizures of neutrals is discussed supra, §§ 329 ff. The report of the British law officers on the rules of admiralty jurisdiction in time of war will be found in the Brit. and For. St. Pap. for 1832-33, vol. xx, 889. After a regular condemnation of a vessel and cargo in a prize court for breach of blockade, the President cannot remit the forfeiture and restore the property or its proceeds to the claimant. 10 Op., 452, Bates, 1863. "In the absence of rules in relation to blockades in time of peace, those applicable to blockades in time of war are the only ones according to which the case of the Lone is to be considered. Whether seized in consequence of one or the other description of blockade, the duties of the captors are the same, both with reference to the captured vessel, which they are bound so to secure as to insure their continued possession of it, and to her crew, who are to be treated with all the humanity and kindness which are consistent with the security of the prize, and which, it is gratifying to perceive from your note, have been extended to citizens of the United States detained by naval forces of France. It would be to the President a cause of sincere regret if anything connected with the case under consideration should lead to a change in the conduct of the officers commanding those forces towards American citizens falling into their hands of which the United States would have just cause to complain." Mr. Vail, Acting Sec. of State, to Mr. Pontois, Oct. 23, 1838. MSS. Notes, III. PACIFIC BLOCKADE. § 364. Whether there can be such a thing as a pacific blockade is a question which was much discussed at the beginning of the late civil war in the United States. That the institution of a blockade does not itself imply a recognition of belligerent rights in the party blockaded was maintained by Mr. Gladstone; that a "pacific blockade" could be instituted in full conformity with international law was maintained by Mr. Sumner in an elaborate speech delivered in February, 1869. The precedents in this connection are as follows: France, Great Britain, and Russia, having ineffectually attempted to mediate between Greece and Turkey, Turkey resolutely repelling their intervention, blockaded, in 1827, all the coasts of Greece where Turkish armies were encamped. This was stated by the three powers to the Sultan to be a pacific measure, but was not considered by him in that light, since it paralyzed his armies. The result was the battle of Navarino, by which the Turkish navy was destroyed. The next nominally pacific blockade, to follow the enumeration of Fauchille (Blocus Maritime, Paris, 1882), was instituted by France in 1831, for the purpose of closing the Tagus, in order to redress injuries alleged to have been committed on French subjects by Portugal. This blockade resulted in a treaty signed at Lisbon, on July 14, 1831, by which reparation was given to France for the injuries complained of, and the Portuguese vessels captured by France were restored. In 1833 France and Great Britain imposed a blockade on the ports of Holland without terminating the pacific relations between the blockading squadron and Holland. The object was to compel the assent of Holland to the recognition of Belgium. In 1838 France took the same course in blockading the ports of Mexico and isolating the fort of St. Jean d'Ulloa, protesting at the same time that pacific relations continued between the two countries. Mexico, however, not regarding the measure as pacific, declared war against France. In the same year, France and Great Britain united in blockading the ports of the Argentine Republic. The blockade lasted ten years, and during the whole of this period the blockading powers insisted that peace still continued. In 1850 Great Britain, as a punishment for certain alleged injuries inflicted two years before by Greek soldiers on the officers of the British ship Fantome, and to compel payment of certain other indemnities, blockaded the ports of Greece. The blockade was withdrawn without war. See 1 Calvo, § 676. In 1860 Victor Emmanuel, then King of Piedmont, joined the revolutionary Government of Naples in blockading ports in Sicily, then held by the King of Naples. The relations between the two courts of Turin and Naples continued to be what were called pacific. In 1862 Great Britain imposed what was called a pacific blockade on the port of Rio de Janeiro. The avowed object was redress for pillage, by the local population, of the Prince of Wales, an English vessel. Earl Russell, in imposing this blockade, declared that, while taking |