search, because the ports are its own, is mere pettifogging. But can it close these ports by an act of the government, as it once opened them? At first view it seems hard to refuse this right to a nation, but the better opinion is that foreigners, by having certain avenues of trade open to them, have thereby acquired rights. The nation at war within itself must overcome force by force, but this method of closing ports supersedes war by a stroke of the pen. It is the fact of obstruction in the ordinary channels of trade which foreign nations must respect. If the State in question cannot begin and continue this fact, it must suffer for its weakness."*

The case after all resolves itself into a de facto loss of sovereignty, as stated by Mr. Lawrence, without any question as to the rights foreigners may have acquired by a course of trade with particular ports.

Rear-Admiral Dahlgren observes that the blockade was resorted to "when, in many cases, a closing of the ports would have served; but, as in other cases, the British government constrained our necessities." This, however, is not a fair statement of the case. And, in any event, blockade is a far more effective measure and one much more extensive in. its operations than a simple municipal closing of ports.

Mr. Justin McCarthy says, in reference to the correspondence between the two governments on this point: "International law on the subject is quite clear. A State cannot blockade its own ports. It can only blockade the ports of an enemy. It can, indeed, order a closure of its own ports. But a closure of the ports would not have been so effective for the purposes of the Federal government: it would have been a matter of municipal law only. An offender against the ordinance of closure could only be dealt with in American waters; an offender against the decree of blockade could be pursued into the open sea."‡

structing

The United States Navy Department having, in 1861, tried Sec. 22. Obthe experiment of sinking hulks in the channels leading into the ports. ports of Charleston and Savannah, in order to render the blockades of those ports more efficient, the "Stone Blockade," as it was called, drew forth a remonstrance from the govern† Dahlgren, p. 26. "A History of Our Own Times," Chap. XLIII.

*Woolsey, Sec. 166 b.

Sec. 23. Modern tendency to freedom of trade.

ment of Great Britain. The British Minister at Washington was instructed, in December, 1861, to represent to the Secretary of State that "such a cruel plan would seem to imply utter despair of the restoration of the Union, the professed object of the war; for it could never be the wish of the United States to destroy cities from which their own country was to derive a portion of its riches and prosperity. Such a plan could only be adopted as a measure of revenge, and irremediable injury against an enemy. Even as a scheme of embittered and sanguinary war, such a measure was not justifiable. It would be a plot against the commerce of nations and the free intercourse of the Southern States of America with the civilized world."

To this Mr. Seward replied that "it was a mistake to suppose that the plan had been devised to injure the harbors permanently. It was a temporary military measure, adopted to aid the blockade. It had been found necessary, in consequence of the small naval force of the government, to close some of the numerous small inlets by sinking vessels in the channels. It would be the duty of the government of the United States to remove all these obstructions as soon as the Union was restored. It was well understood that this was an obligation incumbent on the Federal government. Vessels had been sunk by the rebels to prevent access to their ports by the cruisers of the United States. The same measures had been adopted by the United States to make the blockade more complete. When the war was ended, the removal of all these obstructions would be a mere matter of expense-there would be no great difficulty in removing them effectually."*

During the Franco-Prussian War, Prussia, as a purely defensive measure, blocked up, or filled with torpedoes, a number of harbors in North Germany, and without question from any source. Measures of this nature, undertaken by a State within its own territories, in the prosecution of military operations, are not subjects of complaints from foreign powers any more than are blockade or visitation and search of their vessels on suspicion of carrying contraband of war.

The tendency of the present time of intense commercial activity is to claim for neutral trade the widest possible freedom, and the acts of a belligerent affecting such trade will be closely

*Lawrence's Wheaton, p. 587, n.

scrutinized. Any restrictions will be limited as much as possible. But the belligerent imposing a blockade will naturally hold to the strict law of nations, as shown in judicial decisions, rather than follow the speculations of political economists. War between any two civilized nations necessarily involves the interests of others, but war confers upon a belligerent the right to inflict all the injury he lawfully may on his enemy to a commercial nation an absolute suspension of all trade may be the most direct means of inflicting injury, and neutrals must submit to the incidental loss to their trade.

"It may be remarked, apart from existing law, and apart from all question whether blockades ought to be permitted at every place where they are now lawful, that the experience of the civil war in America has proved the use of steam to assist so powerfully in their evasion, as to render it unwise to shackle the belligerent with too severe restrictions. If it is wished altogether to deprive blockades of efficacy, it would be franker and better to sweep them away altogether."*

*Hall, p. 621.

Sec. 1. The gen eral effects of war On commerce.

PART V.

CONTRABAND OF WAR.

The existence of a state of war confers on the parties to it the right to place certain restrictions, apart from blockade, on the trade of neutrals, it being admitted that the latter must not render any assistance to either belligerent in the conduct of military operations against the other.

It is agreed among nations recognizing the obligations of international law, that arms, ammunition, and warlike implements generally, shall not be furnished to either belligerent by neutrals, but there are other articles that may become of use in war, either directly or by conversion, and the classification of such articles as contraband of war, or as free goods, has depended largely upon the policy and needs of belligerents, where not decided by positive treaty stipulations.

The dominant maritime powers have generally endeavored to include articles of questionable use in the list of contraband, and to give to that list the widest extension, and text-writers have usually, in giving definitions of contraband, followed the policy of their respective countries as shown in the decisions of prize courts. On the other hand, nations less powerful at sea have uniformly protested against such extensions of the list, and have sought to restrict the character of contraband to articles of Varying policy primary use in war. The policy of nearly all nations has thus varied with their naval power and influence, and they have been found at times advocating the most extended definition of contraband, and at others demanding that articles of direct and immediate use in war only should be so classed.

of nations.

In fact, beyond the limited class of articles admitted by common consent to be contraband, it is impossible to lay down any positive rule except where it has been done by treaty stipulations. The nature of contraband will vary with circumstances, and articles of the utmost importance to a nation in carrying on

warlike operations at one time may be wholly unnecessary at another.

"It is the usus bellici which determines an article to be contraband; and as articles come into use as implements of war which were before innocent, there is truth in the remark, that as the means of war vary and shift from time to time, the law of nations shifts with them; not, indeed, by the change of principles, but by a change in the application of them to new cases, and in order to meet the varying inventions of war.

In this chapter it is proposed to give definitions of contraband of war by some of the leading writers on international law, and to show, from the decisions of prize courts, and treaty stipulations, what articles are held as contraband beyond any question. In the precedents furnished by decisions of the prize courts of his country, must be found, in the absence of formal definitions by treaty, the best guide for the naval officer in deciding cases of contraband.

tions. Vattel.

"That the commerce of neutral nations may subsist in as Sec. 2. Definigreat a degree of freedom as is consistent with the laws of war, there are certain rules to be observed, on which Europe seems to be generally agreed.

"The first is, carefully to distinguish ordinary goods, which have no relation to war, from those which are peculiarly subservient to it. Neutral nations should enjoy perfect liberty to trade in the former; the belligerent powers cannot with any reason refuse it; or prevent the importation of such goods into the enemy's country; the care of their own safety, the necessity of self-defence, does not authorize them to do it, since those things will not render the enemy more formidable. An attempt to interrupt or put a stop to this trade would be a violation of the rights of neutral nations, a flagrant injury to them; necessity, as we have above observed, being the only reason which can authorize any restraint on their trade and navigation to the ports of the enemy.

"Commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for ship-building, every kind of naval stores, horses-and even provisions, in certain junctures, when we have hopes of reducing the enemy by famine."† Vattel, pp. 336-37.

* Kent, Vol. I, p. 148.