"95. The penalty for carrying enemy military persons is the confiscation of the vessel and of such part of the cargo as belongs to her owner. Holland's Manual of Naval Prize Law, 25-26. 66 Under paragraph 88, the learned editor cites Carolina, 4 C. Rob. 256; II. GOVERNMENTAL AND DE FACIO BLOCKADES. § 1267. III. CONDITIONS OF VALIDITY. 1. Authority to institute. 2. Effectiveness. § 1269. 3. Paper blockades. § 1270. § 1268. 1. Special concessions. § 1282. 2. Days of grace. § 1283. 3. Ships of war. § 1284. 4. Diplomatic agents. § 1285. VII. OBSTRUCTION OF NAVIGABLE CHANNELS. § 1286. I. A BELLIGERENT RIGHT. § 1266. "A siege is a military investment of a place, so as to intercept, or render dangerous, all communications between the occupants and persons outside of the besieging army; and the place is said to be blockaded, when such communication, by water, is either entirely cut off or rendered dangerous by the presence of the blockading squadron. A place may be both besieged and blockaded at the same time, or its communications by water may be intercepted, while those by land may be left open, and vice versâ.” Halleck, Int. Law (3rd ed., by Baker), II. 184, § 3. See, also, id. 193, § 15. ̈On principle, it might well be questioned whether this rule [the right to confiscate vessels bound to a blockaded port] can be applied to a place not completely invested by land as well as by sea. If we examine the reasoning on which is founded the right to intercept and confiscate supplies designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns invested by sea, only, is an unjustifiable encroachment on the rights of neutrals. But it is not of this departure from principle, a departure which has received some sanction from practice, that we mean to complain. It is, that ports not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized, and on that account confiscated." Mr. Marshall, Sec. of State, to Mr. King, min. to England, Sept. 20, 1800, 2 Am. State Papers, For. Rel. 486, 488. See 3 Wheaton, appendix, note 1, for an extract from this instruction, and also for a note of Mr. Merry, British minister, to Mr. Madison, April 12, 1804, and an instruction of Mr Smith, Sec. of Navy, to Commodore Preble, Feb. 4, 1804. The blockade of an enemy's coast in order to prevent all intercourse with neutral powers "is a claim which gains no additional strength by an investigation into the foundation on which it rests; and the evils which have accompanied its exercise call for an efficient remedy." The investment of a place by sea and land with a view to its reduction is a mode of warfare which can not reasonably be objected to, so long as war is recognized as an arbiter of national disputes. The original theory of blockades was that of reducing places by means of investment. Marshall, when Secretary of State, in an instruction of September 30, 1800, to Mr. King, American minister in London, declared that it might well be questioned whether the rule of blockade could be applied to a place "not completely invested by land as well as by sea," and that, if the foundations of the subject were examined, it would be difficult to resist the conviction that the extension of the doctrine to towns invested by sea only was "an unjustifiable encroachment on the rights of neutrals." Elementary writers abound in expressions indicating a close connection between blockades and sieges, and similar expressions had been used by Lord Stowell. 66 The blockade of a coast or of commercial positions along it, without any regard to ulterior military operations and with the real design of carrying on a war against trade, and from its very nature against the trade of peaceable and friendly powers, instead of a war against armed men, is a proceeding which it is difficult to reconcile with reason or with the opinions of modern times. Unfortunately, however, the right to do this has been long recognized by the law of nations, accompanied indeed with precautionary conditions, intended to prevent abuse, but which experience has shown to be lamentably inoperative. It is very desirable, therefore, that this constant source of irritation in time of war should be guarded against and the power to interrupt all intercourse with extensive regions be limited and precisely defined, before by a necessary reaction its exercise is met by an armed resistance." Mr. Cass, Sec. of State, to Mr. Mason, min. to France, No. 190, June 27, 1859, MS. Inst. France, XV. 426. See the note under an extract from this instruction, supra, § 1195. The right to blockade an enemy's port with a competent force is a right secured to every belligerent by the law of nations. McCall v. Marine Ins. Co., 8 Cranch, 59. Neutrals may question the existence of a blockade, and challenge the legal authority of the party which has undertaken to establish it. One belligerent, engaged in actual war, has a right to blockade the ports of the other, and neutrals are bound to respect that right. The blockade of the ports of the Confederacy under the proclamation of the President of the 19th of April, 1861, was valid. The Prize Cases, 2 Black, 635; The Circassian, 2 Wall. 135; The Admiral, 3 id. 603. "There has in all probability been an extensive importation of merchandise, especially contraband of war, into Matamoras, destined for the insurgent States, and an exportation of cotton from those States through the same channel. Our right to blockade the mouth of the Rio Grande, for the purpose of preventing this commerce, may be considered as at least questionable. A British steamer with a cargo of cotton has recently been captured near the mouth of that river and has been sent to New York for adjudication. In all probability this Government will ultimately have to pay heavy damages for this capture." Mr. Seward, Sec. of State, to Mr. Stanton, Sec. of War, March 13, 1862, Mr. Seward suggested the occupation of a part of the left bank of the (Ibid.) Mr. Seward's letter referred to the case of the British steamer Labuar. as to which see, also, Mr. Seward, Sec. of State, to Mr. Welles, Sec. of Navy, March 13, 1862, 56 MS. Dom. Let. 487. Article 7 of the treaty of 1848 between the United States and Mexico stipulated that the navigation of the river Bravo (otherwise called the Rio Grande) should be free and common to the citizens of both countries, without interruption by either without the consent of the other, even for the purpose of improving the navigation. Nothing short of an express declaration by the Executive would warrant a court in ascribing to the Government an intention to blockade such a river in time of peace between the two Republics. The Peterhoff, 5 Wall. 28, 51. II. GOVERNMENTAL AND DE FACTO BLOCKADES. § 1267. "Blockades are divided, by English and American publicists, into two kinds: (1) A simple or de facto blockade, and (2) a public or governmental blockade. This is by no means a mere nominal distinction, but one that leads to practical consequences of much importance. In cases of capture, the rules of evidence which are applicable to one kind of blockade, are entirely inapplicable to the other; and what a neutral vessel might lawfully do in case of a simple blockade, would be sufficient cause for condemnation in case of a governmental blockade. A simple or de facto blockade is constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts, it ceases when they terminate; its existence must, therefore, in all cases, be established by clear and decisive evidence. The burthen of proof is thrown upon the captors, and they are bound to show that there was an actual blockade at the time of the capture. If the blockading ships were absent from their stations at the time the alleged breach occurred, the captors must prove that it was accidental, and not such an absence as would dissolve the blockade. A public, or governmental blockade, is one where the investment is not only actually established, but where also a public notification of the fact is made to neutral powers by the government, or officers of state, declaring the blockade. Such notice to a neutral state is presumed to extend to all its subjects; and a blockade established by public edict is presumed to continue till a public notification of its expiration. Hence the burthen of proof is changed, and the captured party is now bound to repel the legal presumptions against him by unequivocal evidence. It would, probably, not be sufficient for the neutral claimant to prove that the blockading squadron was absent, and there was no actual investment at the time the alleged breach took place; he must also prove that it was not an accidental and temporary absence, occasioned by storms, but that it arose from causes which, by their necessary and legal operation, raised the blockade." Halleck, Int. Law (3d ed., by Baker), II. 189; Wheat. Elem. Int. Law, pt. iv. ch. iii. § 28; The Neptunus, 1 Rob. 170; The Betsey, 1 Rob. 332; |