their people. In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this difference between a blockade regularly notified, and one without such notice, that in the former case the act of sailing for the blockaded place with an intent to evade it, or to enter contingently, amounts, from the very commencement of the voyage, to a breach of the blockade; for the port is to be considered as closed up, until the blockade be formally revoked, or actually raised; whereas in the latter case of a blockade de facto, the ignorance of the party as to its continuance may be received as an excuse for sailing to the blockaded place, on a doubtful and provisional destination. The question of notice is a question of evidence to be determined by the facts applicable to the case. The notoriety of a blockade is of itself sufficient notice of it to vessels lying within the blockaded port "."

By

of a block

109. The third question to be considered is what Violation conduct renders a neutral vessel liable to capture ade. and condemnation for violating a blockade. the second article of the Ordinance of the States General of the United Provinces, issued on 26 June 1630, already referred to, it was provided "that neutral vessels and their cargoes should be confiscated, when it shall be found from their cargo-papers or other documents that they have been laden in the blockaded ports, or are destined to go to such ports, although they should be found at such a distance from them, that they might possibly change their voyage and intention. This rule being founded on the fact that they have already embarked upon an illicit enterprise and put it in train of execution, although

46 The Columbia, Ch. Rob. 47 The Neptunus, 2 Ch. Rob.

p. 130.

p. 110.

they have not completed it nor brought it to the last point of perfection, the only exception to it can be permitted, when the masters and owners of such vessels can duly show, that they have desisted of their own accord from their enterprise and illicit voyage, before any vessel of war came in sight of them or gave chase to them." The English and American Courts of Prize proceed in the present day upon the principles maintained by the States General in regard to vessels, which have once set sail with an intention to enter a port known to the masters of such vessels to be under blockade. "It has been said," observed Lord Stowell," that the vessel had not arrived, that the offence was not actually committed, but rested in intention only. On this point I am clearly of opinion that the sailing with an intention of evading the blockade of the Texel was beginning to execute that intention; and is an overt act constituting the offence. From that moment the blockade is fraudently evaded." In commenting upon this and other judgments of the English Courts, that eminent American Judge, Chief-Justice Marshall, has observed, Neither the Law of Nations nor the Treaty (between the United States and Great Britain) admits of the condemnation of the neutral vessel for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, has been in some English cases construed into an attempt to enter that port, and has therefore been adjudged a breach of the blockade from the departure of the vessel. Without giving any opinion on that point, it may be observed that in such cases the fact of sailing is coupled with

66

48 Robinson's Collectanea Maritima, p. 165. Bynkershoek, Qu. Jur. Publ. L. I. c. 11.

49 The Columbia, 1 Ch. Rob. p. 155. Cf. Madeiros v. Hill, 8 Bingham, p. 231.

the intention, and the sentence of condemnation is founded on an actual breach of the blockade 50." The same learned Judge in another case 51 observed that sailing from Tobago to Curaçoa, knowing Curaçoa to be blockaded, would have incurred the risk of breaking the blockade; but sailing for that port without such knowledge did not incur it."

The rule of the English Courts in considering the act of sailing for a blockaded port to be in law an attempt to enter it, is a peremptory rule in the case of a blockade, which has been notified by the belligerent Government to neutral Governments, inasmuch as in the case of a blockade which has been publicly notified, the parties despatching the ship are not entitled to presume that the blockade has been raised, unless the revocation of the blockade has also been publicly notified 52.

British

§ 110. A certain equity has been administered by Equity of the English Prize Courts towards vessels which have Prize been despatched from a port very distant from the Courts. blockaded port. Thus Lord Stowell held that American vessels were entitled to the benefit of a contingent destination to be ascertained and rendered definite, by the information which they should receive in Europe. "It must be inferred," he says, "and indeed admitted, that the Notification of the blockade of Havre had been received in America. To all general rules of observance of a blockade duly imposed, the subjects of America are undoubtedly bound equally with those of other countries. At the same time, looking to the great distance at which they are placed, and being unwilling to press with 446. Kent's Commentaries, Tom. I. p. 150.

50 Fitzsimmons v. The Newport Insurance Company, 4 Cranch, p. 185.

51 Yeaton v. Fry, 5 Cranch, p. 335. Cf. The Nereide, 9 Cranch,

p.

52 The Vrow Johanna, 4 Ch. Rob. p. 109.

any degree of hardship on the fair convenience of commerce, the Court has held, even when the blockade of a port in Europe has been notified in America, that the merchants of that country might still clear out conditionally for the blockaded port, on the supposition that before the arrival of the vessel a relaxation might have taken place. But as to the line of caution to be observed in this state of uncertainty, the Court has always expected that the enquiry should be made at some of the British ports in the Channel. It could not be, that ships should be permitted to resort to the ports of the blockaded country for the information, since every one must perceive that such a liberty would place it in the power of the enemy to determine the continuance of the blockade. The ports of the blockading country are certainly the proper ports for enquiry; and it would not be too much to expect, that this precaution should be noted in the papers, and that it should be most explicitly enjoined on the master and supercargo in their instructions to obtain the information, which might be necessary to fix the destination, at some of the British ports in the Channel 53. "

In another case 54 Lord Stowell declared it "to be a measure of necessary caution and of preventive legal policy to hold the rule general against the liberty of enquiring at the very mouth of the blockaded port, as such a liberty would amount in practice to an universal license to enter, and on being prevented to claim the liberty to go elsewhere." On the other hand, the Lords of Appeal in Prize Causes have ruled that it was not a necessary ground for condemnation, that the captain of an American vessel had instruc

53 The Shepherdess, 5 Ch. Rob. p. 265. The Betsey, I Ch. Rob. p. 335.

54 The Spes and Irene, 5 Ch. Rob. p. 81. Cf. The Posten, I Ch. Rob. note, p. 336.

tions to make enquiry of the cruising vessels off the Eyder respecting the existence of the blockade of the River Elbe 55, and that he had not, in fact, made enquiry during the prosecution of his voyage up the Channel in some British Port. They have also ruled that the captain of an American vessel might be instructed to go to Heligoland for a pilot, and there make enquiry if the blockade of the Weser was raised, without thereby exposing his vessel to condemnation for violation of the blockade. But the Lords of Appeal have held in all such cases that, in order to entitle the claimants to the favourable consideration of the Prize Tribunal, the strictest proof of bona fides is required, as the presumption of law in the absence of such proof would be adverse to the claimant of the ship and cargo 56.

able Con

§ III. After the blockade of a port has once been established, every neutral vessel, the master of which voluntarily attempts to enter the port with his vessel either in ballast, or in cargo, without a license from the Government of the blockading Power, is liable to capture and condemnation for breach of the blockade. A license, however, which is expressed in general terms, to authorise a ship to sail from any port in the FavourBaltic with a cargo, will not authorise the same vessel struction of to sail from a blockaded port with a cargo taken in Licenses. there. To exempt a blockaded port from the restrictions incident to a state of blockade it must be specially designated with such an exemption in the license; otherwise a blockaded port will be taken as an exception to the general description in the license 57. Licenses however are to be favourably regarded; and it imports the honour and good faith of a Government 57 The Byfield, Edwards, p. 188.

55 The Little William, Acton, p. 141.

56 The Dispatch, Ibid. p. 163.