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The Legality of the Blockades Instituted by Napoleon’s Decrees, and the British Orders in Council, 1806–1813

Published online by Cambridge University Press:  04 May 2017

Archibald H. Stockder
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Extract

No exhaustive study has, as yet, been made of the Napoleonic era with a view of determining the exact legal status of the blockades established by the British orders in council and the French decrees. It is the purpose of this work to point out the more salient features embodied in the principles of blockade during this period as set forth and laid down by the statesmen of the United States, Great Britain and France, together with their relations to the principles of international law. With this end in view, the treaties, conventions and diplomatic intercourse between the United States and these two foreign countries have been carefully studied. The opinions of statesmen and official legal counsel, as well as the diplomatic correspondence and the decisions of the admiralty courts must be accepted as, in a large measure, establishing the international principles upon which the legality of the various acts may be determined. Court decisions during this period, however, are too much influenced by expediency, made necessary by the demands of the times, to be unconditionally accepted as the last word on the legality of the points in question; but they will nevertheless be freely used.

Type
Research Article
Information
American Journal of International Law , Volume 10 , Issue 3 , July 1916 , pp. 492 - 508
Copyright
Copyright © American Society of International Law 1916

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References

1 Wheaton, International Law, 297–298.

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

3 Ibid.

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

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

6 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.”

7 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 hsitate to admit its doctrine, or to observe its injunctions with other Powers.”

8 2 C. Rob. 110; Scott’s Cases, 796.

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

10 Ibid., 195.

11 6 Robinson’s Admiralty Reports, 64.

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.”

13 Am. State Papers, For. Rel. III, 325.

14 Anderson, Constitutions and Documents, France (Translated by James H. Robinson), 386–387.

15 Ibid., 3S6.

16 Am. State Papers, For. Rel. III, 5.

17 Ibid,, 269–270.

18 Am. State Papers, For Rel. III, 250.

19 Madison to Armstrong, Feb. 8, 1808.

“That the execution of local laws against foreign nations on the high seas is a violation of the rights of the former and freedom of the latter, will probably not be questioned. A contrary principle would, in fact, imply the same exclusive dominion over the entire ocean as is enjoyed within the limits of the local sovereignty, and a degradation of every other nation from its common rights and equal rank.” Am. State Papers, For. Rel. III, 249.

20 Am. State Papers, For. Rel. III, 250.

21 Anderson, , Constitutions and Documents, France, 303–304 Google Scholar.

22 The Mentor, Edwards’ Admiralty Reports, 208. See also the Arthur, Ibid., 203, and the Elizabeth, Ibid., 198, all decided in 1810.

23 The Charlotta, June 20, 1810, Edwards’ Admiralty Reports, 252.

24 The James Cook, July 3, 1810, Ibid., 264.

25 Am. State Papers, For. Rel. III, 291.

26 Anderson, , Constitutions and Documents, France, 394–6 Google Scholar.

27 Channing, E., The American Nation, Vol. 12, p. 243 Google Scholar.

28 Ibid., 245.

29 Anderson, , Constitutions and Documents, France, 396–397 Google Scholar.

30 Letter of the Due de Cadore. August 5, 1810. Edwards’ Admiralty Reports. App., Part I, xxi. “I am authorized to declare that the Berlin and Milan decrees are revoked, and will cease to have their effect from the 1st of November: It being well understood that the English shall revoke their orders in council, and renounce their new principles of blockade, or that the United States will cause their rights to be respected by the English.”

31 Channing, , The American Nation, 249 Google Scholar.

32 Ibid., 250.

33 “The declaration of the person styling himself Due de Cadore, imports no revocation; for that declaration imports only a conditional retraction, and this upon conditions known to be impossible to be complied with. It has been urged that the American Government has considered it otherwise, and has so declared it for the regulation of the conduct of the people of that country.” The Fox and Others, Edwards’ Adm. Reports, 316, decided May 11, 1811.

34 Edwards’ Adm. Reports, 383–395.

35 Am. St. Papers, For. Rel. III, 418 et seq.

36 Am. St. Papers, For Rel. III, 432.

37 Am. State Papers, For. Rel. III, 739.

38 Ex. Doc. 147, Vol. 3, p. 51. 22d Cong., 2nd sess., 1832–33.

39 Ibid., p. 20.

40 Ibid., p. 23.

41 Ibid., p. 76.

42 Ex. Doc. 147, Vol. 3, p. 51. 22d Cong., 2nd sess., 1832–33.