Page:Harvard Law Review Volume 12.djvu/363

NOTES. 343 matter, however, the holding that the deprivation of this liberty is with- out due process of law, is more objectionable. For due process of law two elements are necessary : a legal mode of procedure, and a legal purpose. A law which, as in this case, is to be enforced by the courts, and which is passed in due form by the legislature is undoubtedly one mode by which a citizen may be legally deprived of his liberty. Pro- viding a law is passed to promote the health, comfort, safety, or welfare of society, and violates no other provision of the constitution, its purpose is one which will justify such a deprivation. Of course the act must in a fair and reasonable sense advance some of these objects. A causeless arbitrary deprivation will be declared unconstitutional, for it was to prevent exactly this kind of deprivation that the clause was inserted in the amendment. The court in the principal case admit the law to be as has been stated, and rest their decision on the ground that there is no connection between the act in question and the public welfare. Yet in the dissenting opinions it appears that the act was designed to check certain real evils, — the sale of stolen tickets, counterfeit tickets, or tickets altered in date, destination, or apparent transferability. To this end the act limited the right to sell to persons for whose actions the transportation companies would be responsible. Can it be said the remedy had no connection with the evil? It was also intended to prevent the violation of pooling contracts by the underhand sale of cut rate tickets. Accom- plishment of these objects would certainly conduce to the general wel- fare, and it is hard to agree with the court that the act in no way tends to accomplish them. The Breach of Blockade. — What acts constitute a breach of a blockade is always a perplexing question. During the late blockade of the Cuban ports the steamship " Newfoundland " was brought to by one of the blockading fleet ten miles to the northeast of Havana, and was formally warned away. Four hours afterward she was captured seventeen miles to the northwest of Havana. She could give no satisfactory account of her presence in the first instance, or of her subsequent delay before the port. Accordingly she was condemned by the district court upon the ground that she was loitering upon the high seas near a blockaded port with intent to enter if opportunity offered, and that this action was a breach of the blockade. The Newfoundland^ 89 Fed. Rep. 99, 510 (Dist. Ct., S. C). The decision of the prize court upon the preliminary question that the locus of the breach need not be within the territorial waters of the enemy, though contrary to the opinion of certain continental publicists, is incon- trovertible. To render blockade effective the belligerent must be conceded a certain dominium over the waters about the place beset. Upon the main question the decision that this loitering constituted a breach of blockade also seems sound. Actual entrance into the port blockaded is indeed not requisite : an overt attempt to pass the cordon is clearly a breach. The Neptumis, 2 C Rob. Adm. no But other ac's less unequivocal are held breaches of blockade, and within this category falls the principal case. Of these as a class Lord Stowell tentatively advanced the principle that a neutral ship cannot innocently be found in a situation where it may be possible to elude the blockading fleet with impunity ; a presumption arises that she is there with intent to break the blockade. The Neutralitet, 6 C. Rob. Adm. 30. So, if a ship's course be laid so close to a blockaded