Now knowledge triumphs over technicality and two holdings of British and American courts receive recognition over a contrary practice pursued by France, Italy and Sweden.

In The Franciska, which came before the Privy Council in 1855, the judge said:

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The

Notice has been imputed to the claimant in the court below from the alleged notoriety of the blockade on May 14 at Elsinore, where the ship touched, and at Copenhagen, where the owner resided. fact of knowledge is capable of much easier proof in the case of ingress than in the case of egress; but when once the fact is clearly proved, the consequences must be the same. The reasoning of the learned judge of the court below in this case and the language of Lord Stowell in The Adelaide reported in the note to The Neptunus, 2 Rob. 111, and The Hurtig Hane, 3 Rob. 324, are conclusive upon this point.

But while their lordships are quite prepared to hold that the existence and extent of a blockade may be so well and so generally known that knowledge of it in an individual may be presumed without distinct proof of personal knowledge, and that knowledge so acquired may supply the place of a direct communication from the blockading squadron, yet the fact, with notice of which the individual is to be fixed, must be one which admits of no reasonable doubt. "Any communication which brings it to the knowledge of the party," to use the language of Lord Stowell in The Rolla, 6 Rob. 367, "in a way which could leave no doubt in his mind as to the authenticity of the information."

Again, the notice to be inferred from general notoriety, must be of such a character that if conveyed by a distinct intimation from a competent authority it would have been binding. The notice can not be more effectual because its existence is presumed, than it would be if it were directly established in evidence. The notice to be inferred from the acts of a belligerent, which is to supply the place of a public notification, or of a particular warning, must be such as, if given in the form of a public notification, or of a particular warning, would have been legal and effectual.

Because the notorious knowledge as to the blockade was wrong in this instance the vessel was released. The late American case dealing with a similar situation is The Adula (176 U. S. 361, Scott's Cas. 826) and cases there cited.

Article 15. Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the notification of the blockade to the Power to which such port belongs, provided that such notification was made in sufficient time.

The presumption here is provided with an interesting sidelight from a series of treaties which the United States has negotiated with Bolivia, Brazil, Colombia, Haiti, Italy, Prussia and Sweden and Norway. Article XVI of the treaty of commerce and navigation with Greece, Dec. 22, 1837; Article XIII of the treaty of commerce and navigation with Prussia, May 1, 1828, and Article XVIII of the treaty of commerce and navigation with Sweden and Norway, July 4, 1827, are identic and read:

Considering the remoteness of the respective countries of the Two High Contracting Powers, and the uncertainty resulting therefrom with respect to the various events which may take place, it is agreed that a merchant vessel, belonging to either of them, which may be bound to a port supposed, at the time of its departure, to be blockaded, shall not, however, be captured or condemned for having attempted, a first time, to enter said port, unless it can be proved that said vessel could, and ought to, have learned, during its voyage, that the blockade of the place in question still continued. But all vessels which, after having been warned. off once, during the same voyage, attempt, a second time, to enter the same blockaded port, during the continuance of said blockade, shall then subject themselves to be detained and condemned.

Article 20 of the treaty of peace, friendship, commerce and navigation with Bolivia, May 13, 1858; Article 19 of the treaty of amity, commerce and navigation with Brazil, Dec. 12, 1828; Article 20 of the treaty of peace, amity, navigation and commerce with New Granada (Colombia), Dec. 12, 1846; Article 18 of the treaty of amity, commerce and navigation and extradition with Haiti, Nov. 1, 1864, and Article XIV of the treaty of commerce and navigation with Italy, Feb. 26, 1871, are constructed on the same basis and read as follows:

And whereas it frequently happens that vessels sail for a port or a place belonging to an enemy, without knowing that the same is besieged, blockaded or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place, but shall not be detained, nor shall any part of her cargo, if not contraband of war, be confiscated, unless after a warning of such blockade or investment 10 from an officer

See Treaties in Force, 1904, pp. 94, 111, 200, 398, 419, 453, 647, and 760. 10 The text of the article here given is that of the Italian treaty. The text is to the same intent to the "unless," from which for a few lines the following variations occur: Bolivia, "unless, after warning of such blockade or invest

commanding a vessel of the blockading forces, by an endorsement of such officer on the papers of the vessel mentioning the date, and the latitude and longitude where such endorsement was made, she shall again attempt to enter; but she shall be permitted to go to any other port or place she shall think proper." Nor shall any vessel of either that may have entered into such a port before the same was actually besieged, blockaded or invested by the other, be restrained from quitting such place with her cargo, nor, if found therein after the reduction and surrender, shall such vessel or her cargo be liable to confiscation, but they shall be restored to the owners thereof; 12 and if any vessel, having thus entered any port before the blockade took place, shall take on board a cargo after the blockade be established, she shall be subject to being warned by the blockading forces to return to the port blockaded, and discharge the said cargo, and if after receiving the said warning, the vessel shall persist in going out with the cargo, she shall be liable to the same consequences as a vessel attempting to enter a blockaded port, after being warned off by the blockading forces.

Citations elsewhere 13 indicate the correctness of the principle involved in Article 15 of the Declaration, and the ideas embodied in the treaties just quoted are an interesting exception, and may be said to prove the rule, for it required special and solemn agreements to render them effective. The statement agreed to by the United States Government with Greece, Prussia, Sweden and Norway involves a courtesy and leniency one could not expect to see incorpor ated into a multipartite agreement such as the Declaration of London. It virtually means that a vessel is entitled in certain circumstances to a second warning before being liable to capture or detention. The provision, which was negotiated with Sweden and Norway jointly, is in force in respect to each separately.14

ment, from any officer commanding a vessel of the blockading forces, they shall again," etc.; Brazil, “ unless, after warning of such blockade or investment from any officer commanding a vessel of the blockading forces, she shall again," etc.; Colombia, "unless, after warning of such blockade or investment, from the commanding officer of the blockading forces, she shall again," etc.; Haiti, "unless, after notice of such blockade or investment, she shall again," etc.

11 Added here in the treaty with Haiti is the phrase, “provided the same be not blockaded, besieged or invested."

12 The treaties with Bolivia, Colombia, and Haiti end here. The treaty with Brazil continues in the words of the treaty with Italy, which is quoted above textually, except that the phrase “the port” is employed instead of "any port," probably a change due to the translator only.

18 See ante under Article 16.

14 See U. S. Foreign Relations, 1905, 867-874. The Japanese minister in a

Article 18 says:

The blockading forces must not bar access to neutral ports or coasts.

This statement must be read as not including neutral ports or coasts occupied by the enemy, for by the doctrine of hostile occupation, in that case, they cease to be neutral. Compare United States v. Rice (4 Wheaton, 246); United States v. Hayward (2 Gall 485); American Insurance Co. v. Canter (1 Peters, 541); Cross v. Harrison (16 How. 164); Fleming v. Page (9 How. 603); Jecker v. Montgomery (13 How. 498); Villasseque's Case (Ortolan I, 324); Elector of Hesse Cassel's Case (Phillimore III, 841; Magoon, Military Occupation, 262).

Article 17. Neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the blockade effective.

Article 19. Whatever may be the ulterior destination of a vessel or of her cargo, she can not be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port.

Article 20. A vessel which has broken blockade outwards, or which has attempted to break blockade inwards, is liable to capture so long as she is pursued by a ship of the blockading force. If the pursuit is abandoned, or if the blockade is raised, her capture can no longer be effected.

It looks from these rules as to capture as if practice would have to give way. Articles 17 and 19 read together stipulate that neutral vessels may be captured only within the area of operations of the blockading squadron and that a vessel, neutral or otherwise, cannot be captured if, at the moment, she is on her way to a non-blockaded port. Strictly speaking, the provisions should put an end to the

memorandum of November 9 inquired of Secretary Root as to the validity of treaties negotiated by Sweden and Norway previous to their separation on June 7 as to other Powers and toward each severally. Secretary Root in his reply said: "This government would regard the treaty provisions in regard to Norway and Sweden as severally binding upon each country and unaffected by the dynastic change in Norway. In point of fact, the Government of Norway and the Government of Sweden have hitherto acted independently in execution of their treaty engagements, each within its sovereign jurisdiction." Declarations in notes from the Swedish minister on November 20 and from the Norwegian on December 7 confirmed this opinion.

practice defined as continuous voyage, for they bar the capture of a neutral vessel before she has touched at the intermediate port or ports. If this reasoning is correct, the American and British delegates gave way in this instance to the European theory, which is that the Anglo-Saxon view annihilates the liberty of the sea and the free commerce of neutrals, leading the blockading state to declare itself master of the ocean and to place the entire commerce of the world at the mercy of the belligerents.15

British and American contraband cases, involving blockade, are fairly numerous in which ships were taken before reaching the intermediate port. The Peterhoff (5 Wall. 28, 58) had not yet reached Matamoras on an ostensible contraband voyage when taken; The Stephen Hart (Blatch. Prize Cases, 387) was taken on a declared voyage from London to Cardenas; The Dolphin (7 Fed. Cas. 864), The Pearl (19 Fed. Cas. 54, 5 Wall. 578), The Bermuda (3 Wall. 514) and The Springbok (5 Wall. 1) were captured during the Civil War on the voyage from Liverpool to Nassau.16 In all of these the continuous voyage was held to place the vessel in delictu, and Sir William Scott's decision in The Imina (1800, 3 C. Rob. 138) is sometimes considered as being at variance with the customary Anglo-Saxon rule.16 In that case, however, he definitely states: The rule respecting contraband, as I have always understood it, is that the articles must be taken in delictu, in the actual prosecution of the voyage to an enemy's port. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavoring to enter the enemy's port; but beyond that, if the goods are not taken in delictu, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach.

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The vessel itself sailed from Dantzig for Amsterdam, but was going at the time of the capture to Embden in consequence of information of the blockade of Amsterdam. Because of that circumstance

15 Arntz, Asser, Bulmerincq, Calvo, Gessner, Hall, Vernon Harcourt (Historicus), Geffcken, Lawrence, Phillimore, Travers-Twiss, Westlake, de Boeck, and Fauchille have condemned the American practice. See Gessner, Le droit des neutres, 230; Travers-Twiss, II, 117, and La theorie de la continuite du voyage, Paris, 1877; de Boeck, De la propriete, 175; Fauchille, 133 et seq.; Geffcken's Heffter, 56, note 9, for Continental discussions of the point.