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ciple seems also to have been adopted quite completely by the British. In 1798, Sir William Scott, of the High Court of Admiralty, in reference to the proclamation of January 1, 1794, placing the French West Indies under blockade, said,

The Lords of Appeal have determined that such a proclamation was not itself sufficient to constitute a legal blockade: it is clear, indeed, that it could not in reason be sufficient to produce the effect, which the captors [of the Betsey] erroneously ascribed to it; but from the misapplication of these phrases in one instance, I learn, that we must not give too much weight to the use of them on this occasion; and from the generality of these expressions, I think we must not infer, that this was not that actual blockade which the law is now distinctly understood to require.2

In the same case he says,

On the question of blockade three things must be proved: 1st, the existence of an actual blockade; 2nd, the knowledge of the party; and 3rd, some act of violation, either by going in, or by coming out with a cargo laden after the commencement of the blockade.3

Again, in 1804 the prize court laid down the rule that, to constitute a blockade, notice to shut up the port should be given, and special notice of blockade must be made to vessels in the neighborhood of the port to warn them off, and that in addition, a force sufficient to enforce the blockade must be stationed near enough to keep all vessels from entering.1

These cases point to the acceptance of the principles that blockades must be generally as well as specially notified, and that paper blockades are invalid.

This rule seems to have substantially coincided with that of the French at this period,5 and, with the exception of the parts relating to notification, was the definition given in the treaty between Russia and Great Britain in 1801. Article IV of this treaty reads:

2 The Betsey, 1 C. Rob. 92a; Scott's Cases, 798.

3 Ibid.

The Nancy, 1 Acton, 57; Scott's Cases, 817. This was, however, a blockade instituted by the commander of the fleet.

5 W. E. Hall, A Treatise on International Law, 719.

In order to determine what characterizes a blockaded port, that denomination is given only to a port where there is, by disposition of the Power which attacks it with ships stationary or sufficiently near, an evident danger in entering.

That this was also the view of American statesmen as to a valid blockade is shown by the diplomatic correspondence between the United States and Great Britain referring to the proposed treaty of 1806. But here the discussion centered more upon the question of notification, as this point was not completely covered by the Russian treaty.

In 1799 Sir William Scott decided the case of the Neptunus, in which he held that

The effect of a notification to any foreign government would clearly be to include all the individuals of that nation; it would be the most nugatory thing in the world, if individuals were allowed to plead their ignorance of it; it is the duty of the foreign governments to communicate the information to their subjects, whose interests they are bound to protect.8

On first thought it would seem that these decisions are contradictory; but on closer examination it is found that in the case of the Betsey the declaration of blockade was made by the commander of the fleet and was not properly notified to foreign governments; while in the latter decision, that of the Neptunus, the same justice states the rule as given above. In this case he does, however, recognize that American vessels

Am. State Papers, For. Rel. VIII, 81. Also in a letter from Mr. Monroe to Mr. Madison, Feb. 12, 1806. The former stated that Mr. Fox "intimated that he had been accused of being too friendly with Americans, and when I spoke of the treaty with Russia, he observed that he had thought the arrangement made by it was a good one."

1 Ibid., For. Rel. VIII, 214.

Mr. Monroe to Mr. Fox, Feb. 25, 1806.

"In respect to neutral rights, it is proposed to adopt between the governments, in such cases as were more liable of abuse, certain principles or rules of conduct which Great Britain had already assented to in her treaty with Russia in 1801. As those Powers had entered into the treaty for the express purpose of defining the law of nations in the cases to which it applied, and Great Britain had adopted its conditions afterwards in separate conventions with Denmark and Sweden, with the same view, it was concluded, that her government would not hesitate to admit its doctrine, or to observe its injunctions with other Powers."

82 C. Rob. 110; Scott's Cases, 796.

might have been a long time enroute, and in a position where notification by the government would be quite difficult or next to impossible, and holds that in such cases special notice is necessary. Thus the seeming contradiction of principles is in fact the application of different principles to two distinct cases.

The principle that notification to foreign governments through official channels constituted also notification to their individual merchant vessels became the stumbling block during the negotiations for the rejected treaty of 1806. American statesmen contended that notification of an existing blockade to ministers or representatives of foreign states is not sufficient, and also objected strongly that a blockade should be considered to be still in legal force until rescinded by the instituting government even though the force applied to it was neglecting to enforce it. They also insisted upon direct special notification to American vessels because of the great distance separating the United States from Europe. The treaty as signed by the American agents failed completely on these points. The British agents were also averse to incorporating the article of the Russian treaty into that with the United States, or even to give any concise definition, whatever, of what constituted a blockade. Mr. Madison, in his letter to the American ministers at London said,

The British doctrine of blockades, exemplified by practice, is so different from that of all other nations, as well as from the reason and nature of that operation of war. The mode of notifying a blockade by proclamation and diplomatic communication, of what, in fact, has been done, is more particularly the evil which is to be corrected. Against these nominal blockades the article does not sufficiently close the door."

In July, 1807, the American ministers, Monroe and Pinckney, proposed to George Canning to incorporate the article of the Russian treaty verbatim into the treaty, but this the latter refused to do.10 In all probability the trend of affairs in Europe influenced the British not to compromise themselves on this point, and caused the Americans to seek so assiduously some acceptable settlement of the difference.

One other point brought out in 1805 must, however, not be omitted. This occurred in connection with the blockade of Cadiz, notified April 25,

Am. State Papers, For. Rel. III, 170.

10 Ibid., 195.

1805, after having existed as a de facto blockade for some time previous to that date. After the declaration the Spanish vessel Christina Margaretha was seized in the British channel by a vessel not of the blockading force, although the prize had left the blockaded port before the official notification. In his opinion, Justice Scott said,

If it is pretended that the seizure was under the notification of the 25th of April, which had intervened before the capture, it would have been prudent to have applied it only to such ships as might be supposed to have received notice of it.11

Out of this seeming conflict of opinion it is very difficult to arrive at the exact status of the rule of blockade. The weight of the opinions would, however, seem to point to the following facts: (1) that a blockade in order to be legal must have sufficient force applied to it to make it dangerous to enter or leave the port; (2) that the Americans demanded direct notification to vessels, while the British held that official notification to foreign governments was sufficient, but allowed a reasonable time in case of vessels at sea which could not be notified by the government before declaring them to be lawful prize.

The French view of legal blockade will be brought out more fully later. Suffice it to say at present that it was somewhat more strict than even the American view.


In order to understand thoroughly the conditions as they existed between 1806 and 1812, it is necessary to recount briefly the principles laid down by the various British orders in council and French decrees.

On May 16, 1806, the orders in council instituting the first blockade of this interesting series were issued. They in substance declared a blockade of the European coast from Brest to the Elbe, but, through a secret understanding with Mr. Fox, it was not to be enforced agianst Americans except between the Seine and Ostend. The rest of the coast was thus left open to neutral vessels, but only in so far as they were not laden in an enemy port, carried enemy goods, or came directly from an

116 Robinson's Admiralty Reports, 64.

enemy port. The unofficial understanding was acquiesced in chiefly as a favor to Americans, whom Fox strongly favored. It was, nevertheless, a harbinger of evil for the United States, and the government made strenuous and untiring efforts to have the matter definitely adjusted by treaty, the negotiation of which, as before stated, was entrusted to J. Monroe and Wm. Pinckney. The treaty as finally signed by the two Americans, December 31, 1806, was notoriously inadequate in meeting the demands of their government and was not even considered. Further negotiations which took place over the controverted points were soon brought to a close by the decrees of Napoleon, the first of which, the Berlin decree, will now be considered.

The Berlin decree was issued November 21, 1806, as a measure of retaliation for Fox's blockade, the partial enforcement of which Napoleon preferred to overlook, disdaining to receive his supplies through the concessions of his enemies. Among the abuses of international law perpetrated by Great Britain and calling for reprisals, as set forth in this decree, those bearing on blockade play an important part. England is accused of blockading unfortified places, of declaring blockades without ships enough to enforce them and others which she would be utterly unable to enforce, and of seeking to gain commercial advantages over other states through the abuse of a war measure.12

From the above note may be derived some of the principles of blockade as understood by the French at this period. The rules there laid down were narrowed still more when France claimed to adhere to the

12 Edwards' Admiralty Reports, Appendix to Pt. I, viii. The statement of the abuses referring to blockade are:

"4. That she extends the right of blockade to commercial unfortified towns, and to ports, harbors, and mouths of rivers, which, according to the principles and practices of civilized nations [as interpreted by France], is only applicable to fortified places.

"That she declares places in a state of blockade before which she has not a ship of war, though no place can be considered in a state of blockade unless it is so invested that approach cannot be attempted without imminent danger.

"That she even declares places in a state of blockade, which, with all her forces united, she is incapable of blockading, namely, whole coasts and empires.

"5. That this monstrous abuse of the right of blockade has no other object than to obstruct the communication of nations with each other, and to raise the trade and industry of England upon the ruin of the trade and industry of the nations of the Continent."

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