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on that principle would not deserve to have battles fought
for it.
An exchange of prisoners, while it is thus far a recognition,
by implication, of a political status of the insurgents as an
organized force, implies nothing respecting the legal char-
acter of that force. An exchange of prisoners may be made
with an independent belligerent nation long established; it
may be made with a belligerent barbarian ; and so it may
be made with insurgents, or even with those who are strictly
It seems clear that, while, on the one hand, the insurgents,
by any amount of force which they can muster in the field, in
giving to the contest the character of a war, cannot deprive
the government assailed of the right to treat them as traitors;
so, on the other hand, government may voluntarily recognize
the force arrayed against it as that of a belligerent party,
against which it may adopt the modes of warfare usual among
nations, as, for instance, a blockade, – or with which it may
negotiate for the mitigation of the horrors and sufferings of
the warfare, as by an exchange of prisoners, – without there-
by depriving itself of the right still to hold the persons en-
gaged in the insurrection as traitors or pirates, according to
the nature and character of their hostile acts.
Regarding the Secessionists as mere insurgents and traitors,
who by means of the insurrection have for the time subverted
the legitimate authority of the United States, and deprived
that government of the revenue from customs within the lim-
its of the insurrection, — attempting at the same time to ap-
propriate such revenue to their own use, – the government
might, by a mere act or order, have closed the ports, as one of
the means of suppressing the insurrection, instead of battering
down the towns, which would, perhaps, be somewhat more
effectual. There seems to be no reasonable doubt that the
President—who, under his power and duty to suppress the
insurrection, might order the latter to be done, if in his judg-


ment the exigency required it — might resort to the milder measure of interdicting all commerce there, when it became apparent that such commerce was not, and could not be, carried on with the United States, and, instead of being beneficial, was hostile to them. No blockading force is necessary to the validity of such an act or order. Each nation has a right, for its own reasons, to constitute and to abolish ports of entry; and one of the reasons for abolishing a port might be the existence of an insurrection there. And so long as other nations recognize the jurisdiction and authority of the government which abolishes, over the locus in quo, they must respect the act or order which denies entrance there, although it may be a mere paper regulation, without any military or naval force to support it. If, however, the abolishment of the port was in fact an act of hostility for the purpose of inflicting an injury upon another nation, instead of being designed as a municipal or domestic regulation, it might give just cause of offence. But an act discontinuing a port of entry, or an order closing

such a port and interdicting commerce there, is a very different matter from a blockade of the port. The term “blockade ’’ has its appropriate signification. It means to block up, or shut up, — not to subvert or abolish ; nor does it signify the closing of the port, except by the presence of a force for that purpose. A blockade, properly so called, while it may be used to suppress an insurrection, is not a mere measure for that purpose, without other incidents or consequences attached to it. A blockade proper imports the closing of the port of an enemy by a hostile power, thereby forbidding entrance and exit, under certain rules and limitations, and with certain exceptions; and it implies at the same time a right in other nations to enter and clear from the port, under the party in actual possession of it, if the blockade is not made effectual by a competent force. It is not the exercise of a mere municipal or domestic right, like that of closing a port by a repealing act, or an affirmative order for the purpose; but it is a

right of war, acknowledged by the law of nations as existing in favor of one belligerent against the other, and regulated by the rules of international law. A few extracts from an approved elementary work will be sufficient to show the nature of a blockade.

“Among the rights of belligerents, there is none more clear and incontrovertible, or more just and necessary in the application, than that which gives rise to the law of blockade. Bynkershoek says, it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius considers the carrying of supplies to a besieged town, or a blockaded port, as an offence exceedingly aggravated and injurious. They both agree that a neutral may be dealt with severely; and Wattel says, he may be treated as an enemy. The law of blockade is, however, so harsh and severe in its operation, that, in order to apply it, the fact of the actual blockade must be established by clear and unequivocal evidence; and the neutral must have had due previous notice of its existence; and the squadron allotted for the purposes of its execution must be competent to cut off all communication with the interdicted place or port; and the neutral must have been guilty of some act of violation, either by going in, or attempting to enter, or by coming out with a cargo laden after the commencement of the blockade. The failure of either of the points requisite to establish the existence of a legal blockade, amounts to an entire defeasance of the measure, even though the notification of the blockade had issued from the authority of the government itself.

“A blockade must be existing in point of fact; and in order to constitute that existence, there must be a power present to enforce it.”

“The definition of a blockade given by the convention of the Baltic powers, in 1780, and again in 1801, and by the ordinance of Congress, in 1781, required that there should be actually a number of vessels stationed near enough to the port to make the entry apparently dangerous.”

“The occasional absence of the blockading squadron, produced by accident, as in the case of a storm, and when the station is resumed with due diligence, does not suspend the blockade, provided the suspension, and the reason of it, be known; and the law considers an attempt to take an advantage of such an accidental removal as an attempt to break the blockade, and as a mere fraud. . . . . . But if the blockade be raised by the enemy, or by applying the naval force, or a part of it, though only for a time, to other objects, or by the mere remissness of the cruisers, the commerce of neutrals to the place ought to be free. The presence of a sufficient force is the natural criterion by which the


neutral is enabled to ascertain the existence of the blockade.”

“The object of a blockade is not merely to prevent the importation of supplies, but to prevent export as well as import, and to cut off all communication of commerce with the blockaded port. The act of egress is as culpable as the act of ingress, if it be done fraudulently. - - - - - The modern practice does not require that the place should be invested by land as well as by sea, in order to constitute a legal blockade; and if a place be blockaded by sea only, it is no violation of belligerent rights for the neutral to carry on commerce with it by inland communications.

“It is absolutely necessary that the neutral should have had due notice of the blockade, in order to affect him with the penal consequences of a violation of it. . . . . . After the blockade is once established, and due notice received, either actually or constructively, the neutral is not permitted to go to the very station of the blockading force, under pretence of inquiring whether the blockade had terminated, because this would lead to fraudulent attempts to evade it, and would amount in practice to a universal license to attempt to enter, and, on being prevented, to claim the liberty of going elsewhere.”

“A neutral cannot be permitted to place himself in the vicinity of a blockaded port, if his situation be so near that he may, with impunity, break the blockade whenever he pleases, and slip in without obstruc. tion. If that were to be permitted, it would be impossible that any blockade could be maintained.”

“The fact of clearing out or sailing for a blockaded port is, in itself, innocent, unless it be accompanied with knowledge of the blockade.”

“In Yeaton vs. Fry, the Supreme Court of the United States coincided essentially with the doctrine of the English prize courts; for they held that sailing from Tobago for Curaçoa, knowing the latter to be blockaded, was a breach of the blockade, and, according to the opinion

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of Mr. Justice Story, in the case of the Nereide, ‘the act of sailing with intent to break a blockade is a sufficient breach to authorize confiscation.' . . . . . If the ports be not very wide apart, the 'act of sailing for the blockaded port may reasonably be deemed evidence of a breach of it, and an overt act of fraud upon the belligerent rights.”

“The consequence of a breach of blockade is the confiscation of the ship; and the cargo is always, prima facie, implicated in the guilt of the owner or master of the ship. . . . . . If a ship has contracted guilt by a breach of blockade, the offence is not discharged until the end of the voyage. The penalty never travels on with the vessel farther than to the end of the return voyage; and if she is taken in any part of that voyage, she is taken in delicto.”—l Kent's Com., 143–151.

It appears from all this, that a blockade admits, by implication, that the port is in the possession of a party or power with which the blockading party is at war, and with which neutral nations, if they please, may hold commercial intercourse, subject to the laws of war, without payment of duties to the party instituting the blockade, or interruption by that party except by the blockade, or other warlike operations. In other words, the port is governed for the time being, as between the blockading party and neutral nations, by the law of nations applicable to war between two powers, – instead of being governed, as to them as well as its possessors, by the domestic law applicable to the insurrectionary resistance to the established government. That government cannot say to neutrals, “We debar you from entering this port because it is blockaded, and if you violate the blockade, you will be liable to capture and condemnation,” — leaving them to inquire whether the blockade is maintained, and to govern themselves by the law applicable to it, — and at the same time say, “All intercourse with the place is forbidden, because it is our port, but, by reason of insurrectionary force, commerce there cannot be carried on with the United States, and the place, therefore, is no longer to be treated as a port during the continuance of the insurrection.”

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