"protected in breaking actual blockade;" that instructions in this sense would be sent to the United States naval forces, and that the steamers should be advised "that they should not attempt to break the blockade when it is visible." The aspects of the situation were, however, essentially changed by an investigation of the complaint made by the minister of foreign affairs. at Caracas, of the action of the U. S. S. Kearsarge, Sept. 30, 1892, in convoying the steamer Philadelphia into Puerto Cabello. Although the blockade of the port was proclaimed August 26, to take effect on Sept. 10 for vessels from the Antilles, and on Sept. 25 for vessels from the United States, it was positively ascertained that no blockading force was visible on Sept. 16, 21, 23, 25, 26, or 27, while no information was obtained of the presence of any Venezuelan Government vessel either before or after Sept. 30, when a force was sent there perhaps for the purpose of intercepting the Philadelphia, but more probably for that of intercepting another vessel, which was supposed to be laden with arms and munitions of war. (For. Rel. 1892, 624.) Under thecircumstances, and in view of the fact that not long previously, six passengers with permits to leave the country were forcibly taken from the American steamer Caracas by de facto authorities at Puerto Cabello, Admiral Walker ordered the Kearsarge to convoy the Philadelphia into port, in order, as he said, " to protect the American mail steamer from unlawful and irregular interference from either faction." It seems that one of the Venezuelan gunboats steamed toward the Philadelphia, but did not speak her, or make any recognized signal to attract her attention. With reference to this situation the Department of State, on Oct. 18, 1892, said: "If, as appears from the facts stated, no serious and continuous visible blockade of that port [Puerto Cabello] was maintained and a mere pretense of blockade kept up by sending a vessel there only on the periodical occasions when the steamers were scheduled to touch at that port, it could not be respected as effective under international law. Blockade to be effective must be maintained against all commerce, and aim to visibly close the port [and] not be directed to interference with particular ships at intervals." Mr. Scruggs, min. to Venezuela, to Mr. Foster, Sec. of State, tel., Oct. 4. 1892, For. Rel. 1892, 628; Mr. Foster to Mr. Scruggs, tel., Oct. 5, 1892, id. 629, MS. Inst. Venezuela, IV. 190; Mr. Scruggs to Mr. Foster, Oct. 7, 1892, For. Rel. 1892, 629-634; Mr. Wharton, Act. Sec. of State, to Mr. Scruggs, Oct. 18, 1892, id. 635. For a Venezuelan decree of blockade of the mouth of the Orinoco, Oct. 2, 1871, and a decree of May 4, 1872, abrogating the previous decree, see S. Mis. Doc. 168, 50 Cong. 1 sess. 71, 81. “A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous." Instructions to Blockading Vessels and Cruisers, General Orders, No. 492, The French steamer Olinde Rodriguez, belonging to the Compagnie Générale Transatlantique, sailed from Havre June 16, 1898, on her regular voyage, under her mail contract with the French Government, for the West Indian ports of St. Thomas, San Juan (Porto Rico), Puerto Plata, Cape Haytian, St. Marc, Port au Prince, Gonaives, and return, calling at the same ports. A proclamation declaring San Juan to be blockaded was issued by the Government of the United States on June 27, 1898. The Olinde Rodriguez arrived at St. Thomas on July 3, and on July 4 entered the port of San Juan. The U. S. S. Yosemite, which was lying three miles southwestward of the port, on blockade duty, gave chase, but was unable to reach the steamer before she had turned in and come under the protection of the shore batteries. When on the following morning she came out, the commander of the Yosemite, accepting the master's statement that he did not know that the port was blockaded, endorsed on her log an official warning and permitted her to proceed. She duly completed her outward itinerary and had left Puerto Plata on her return voyage when, on July 17, she was captured by the United States steamship New Orleans off San Juan, on the charge of attempting to enter that port. Questions were raised (1) as to the existence of the intent to enter, and (2) as to the existence of a lawful blockade. The court below doubted the validity of the blockade, because it was maintained by only one cruiser. The Supreme Court observed that the test was whether the blockade was "practically effective; " that this, though a mixed question, was one "more of fact than of law;" that, by General Orders, No. 492," a blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous;" that, while it was not practicable to define the degree of danger that should constitute a test, it was enough that the danger was "real and apparent; " and that the question of effectiveness was not controlled by the number of the blockading force. The position could not, said the court, be maintained, that one modern cruiser, though sufficient in fact, was not sufficient in law; nor could a vessel, actually captured in attempting to enter a blockaded port, after a warning entered on her log by a cruiser off that port only a few days before, dispute the efficiency of the force to which she was subjected. The blockade was therefore held to be effective and binding. On the other hand, the court decided that the intent to break the blockade was not sufficiently established; but, in view of circumstances of suspicion, ordered that restitution should be awarded without damages, and that the costs and expenses of her custody and preservation, and all costs in the cause except the fees of counsel, should be imposed on the ship. The Olinde Rodriguez, 174 U. S. 510; cited in The Newfoundland, 176 For the case of the Olinde Rodriguez in the court below, see 89 Fed. The President, in his proclamation of April 26, 1898, in relation to the "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 seem to have been thought by the British Government amply sufficient to create the degree of risk neces sary under the English view of international law, although from the peculiar nature of the coast a large number of vessels succeeded in getting out and in during the whole continuance of the blockade.” Hall, Int. Law (5th ed.), 701, citing Bernard, Neut. of Great Britain, chaps. x. and xi. "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 neg ligence, but to a general laxity or want of efficiency-then such blockade is not valid." Wharton, Com. Am. Law, § 233, p. 332. Baker, referring to the fourth clause of the Declaration of Paris of 1856, which declares that "blockades, in order to be binding, must be effective," makes the singular statement: "This proposition has been adopted by most civilized nations with the exception of the United States, Spain, Mexico, and Venezuela." No other principle was ever maintained by the United States, and it was chiefly against its violation that the United States went to war in 1812. See First Steps in Int. Law, by Sir Sherston Baker, Bart. (London 1899) 271. A blockade may be made effectual by batteries ashore as well as by ships afloat. In the case of an inland fort, the most effective blockade would be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels attempting to enter. The Circassian, 2 Wall. 135. 3. PAPER BLOCKADES. § 1270. "The fictitious blockades proclaimed by Great Britain and made the pretext for violating the commerce of neutral nations have been one of the greatest abuses ever committed on the high seas. During the late war they were carried to an extravagance which would have been ridiculous, if in their effects they had not inflicted such serious and extensive injuries on neutral nations. Ports were proclaimed in a state of blockade previous to the arrival of any force at them, were considered in that state without regard to intermissions in the presence of the blockading force, and the proclamations left in operation after its final departure; the British cruisers during the whole time seizing every vessel bound to such ports, at whatever distance from them, and the British prize courts pronouncing condemnations wherever a knowledge of the proclamation at the time of sailing could be presumed, although it might afterwards be known that no real blockade existed. The whole scene was a perfect mockery in which fact was sacrificed to form and right to power and plunder. The United States were among the greatest sufferers; and would have been still more so, if redress for some of the spoliations proceeding from this source had not fallen within the provisions of an article in the treaty of 1794." Mr. Madison, Sec. of State, to Mr. Monroe, min. to England, Jan. 5, 1804, See, as to the conditions existing prior to the peace of Amiens, Moore, For documents relating to paper blockades, see app. to United States v. October 26, 1803, the commander of the British ship of war Bellerophon, off Cape François, announced that "every port in the island of St. Domingo" was in a state of blockade and warned vessels that if they were seen or found within three leagues of the land, after that date, they would be seized as prize. The only intimation which the United States appears to have received concerning this blockade was by the endorsement made on the register of an American ship which was afterwards communicated to the Department of State by a collector of customs in the United States, late in December, 1803. Mr. Adams, Sec. of State, to Mr. Cowper, March 17, 1821, 18 MS. Dom. Let. 282. On April 8, 1806, the British Government, in retaliation for a decree of Prussia, issued on the occupation of Hanover, excluding British trade, declared the mouths of the Ems, Weser, Elbe, and Trave to be in a state of blockade. On May 16, a similar declaration was made in respect of the whole coast of the continent from the river Elbe to the port of Brest, inclusive. In the following September, this blockade was declared to be discontinued as to the coast from the Elbe to the Ems. On November 21, 1806, Napoleon issued from the imperial camp at Berlin a decree which declared the British Islands to be in a state of blockade and all commerce and correspondence with them to be prohibited. Referring to this decree, Lord Howick, on January 7, 1807, issued an order in council by which neutral vessels were forbidden to trade from one port to another, both of which were in the possession or control of France or her allies. On the 11th of November, further orders in council were issued, which prohibited neutral vessels from trading with the ports of France and her allies and with all ports in Europe from which, though they were not at war with Great Britain, the British flag was excluded, unless such vessels should clear from a British port under regulations to be prescribed in the future. On December 17, 1807, Napoleon, in retaliation for these orders, issued his Milan decree which, besides declaring every ship that had submitted to search by the English to be good prize, repeated the declaration that the British Islands were in a state of blockade, and declared that every ship that should sail from or be destined to a port in Great Britain or the British possessions, or in any country occupied by the British troops, should be good prize. Against these various orders |