Page:The Green Bag (1889–1914), Volume 16.pdf/242

 Rh IN The Law Magasine and Review for Feb ruary, Charles L. Nordon has a timely article on "Blockade and Contraband: Law and Practices of Nations in Modern Times." Concerning blockades Mr. Xordon says: The conditions necessary to the due insti tution and maintenance of a blockade, and to insure the liability of any neutral for a breach, are as follows:— (1) The belligerent must intend to insti tute it as a distinct and substantive measure of war, and his intention must have been brought to the knowledge of the neutrals it affected: (2) It must have been instituted under suf ficient authority: (3) It -must be maintained by a sufficient and properly disposed force. Although k may be stated of these rules that in theory they are universal in their ac ceptation by those concerned in war, yet they vary greatly in the method of their ap plication. The first point whereon any appreciable difference of opinion and practice has existed in recent times is upon the question of the knowledge of the neutral of the existence of the state of blockade. And hereon consid erable difference has been adopted between two great schools of thought—that of Eng land and America on the one hand, and that of France, Italy, Spain and Sweden on the other. According to the English and Ameri can theory, blockades are for this purpose divided into two classes, vis.: blockades de facto, without proclamation, and notified blockades. In the former case no vessel incurs liability until she commits a breach conscious of the existence of the blockade, that is to say, the onus will be on the bellig erent to prove the knowledge of the neutral, save in the case where such dc facto blockade has existed for some considerable time, when a presumption of knowledge may be drawn from its notoriety. ... In the case of noti fied blockades, notification of the impending blockade being given to neutrals by general proclamation, and a reasonable time being allowed for such notification to take effect, all neutral vessels are deemed to be affected

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with notice, and the mere sailing with an intent to break the blockade will be sufficient to warrant condemnation, for a neutral is bound to shape his conduct upon a presump tion that a place subject to a blockade at the commencement of a proposed voyage thereto will continue to be so subject up to its termination, and thus be and remain a prohibited destination for the neutral. But according to the French and Conti nental theory, all distinction between block ades de facto and those with proclamations on this point being disregarded, the neutral is not bound by any such presumption of continuance; on the contrary, he is permitted to ignore any knowledge acquired by him at any time before he can experimentally test the existence of the blockade on the place subjected to it. The next point of difference lies in the contrary opinions held as to the continuance and maintenance of the blockade. According to the English and American practice, the blockade is not raised by a mere temporary cessation of operations, provided such cessa tion be merely the result of unfavorable weather—secus, if by reason of the ships en gaged being told off for employment. . . . The Declaration of Paris (in harmony with the English doctrine) provides that "Block ades in order to be binding must be effec tive." ... The remaining incident of blockade of any great importance wherein differences obtain both in theory and in practice is its breach. . . . Summing up the French practice here on, it may be laid down as a general rule that, as the presumption of continuance of every blockade is not admitted, the only act which will occasion forfeiture is an actual attempt on the part of the neutral to effect a breach either by force or fraud. . . . But the English and American Courts, admitting as they do the presumption of continuance, it follows as a natural and logical consequence that they hold subject to confiscation the property of a trader seized at any time dur ing the course of a voyage having clearly for its intended termination the blockaded Dort.