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“The direct trade, however, between the mother country and her colonies, has not, I apprehend, been recognized as legal, either by his majesty's government, or by his tribunals.

“What amounts to a direct trade, and what amounts to an immediate importation into a neutral country, may sometimes be a question of some difficulty. A general definition of either, applicable to all cases, cannot well be laid down. The question must depend upon the particular circumstances of each case.

Perhaps the mere touching in the neutral country, to take fresh clearances, may properly be regarded as a fraudulent evasion; and is

, in effect, a direct trade; but the high Court of Admiralty has expressly decided (and I see no reason to expect that the Court of Appeal will vary the rules) that landing the goods, and paying the duties in the neutral country, breaks the continuity of the voyage, and is such an importation as legalizes the trade; although the goods be reshipped in the same vessel, and on account of the same neutral proprietors, and forwarded for sale to the mother country or the colony."

In cases of illegal colonial trade by neutrals, as well as in other cases of illegal commerce conducted by them, the penalty, in case of capture, is confiscation. It was formerly the rule in such cases, that the neutral ship should be restored, and the cargo only confiscated; but the strict rule of confiscation of both ship and cargo is now well established.”

91

Penalty for violation of rule.

2

i Vide Kent's Com., 92, note.

Jonge Thomas, in a note to the report of The Minerva, 2 Rob., 229; The Volant, note to the report of The Wilhelmina, 4 Rob. App. ; 1 Acton's R., 171.

There are some other commercial transactions which are frequently entered into by neutrals, of a nature so subject to abuse, that belligerents have considered themselves justified in discountenancing them.

Thus, where a neutral put in a claim upon a hostile ship which had been captured, averring that it had been purchased from him, and not paid for, and that he retained a lien on the property for the payment of the purchase-money, the court rejected the claim, saying: “Such an interest cannot be deemed sufficient to support a claim of property in a court of prize. Captors are supposed to lay their hands on the gross tangible property, on which there may be many just outstanding claims between other parties, which can have no operation as to them.”

Silver was shipped by a hostile merchant, to his agent in Hamburg, as it was asserted, for the payment of an American neutral. The claim of the neutral was disallowed against the captors.” “For," said the court, “even if the asserted intention on the enemy's part were ever so sincere, it always remained revocable. The hostile merchant retained the power of converting it to any purpose of his own, and the neutral merchant had no document whatever, giving him any control over it. Under these circumstances, the hostile merchant must be taken to be the legal proprietor, and as his property, this silver must be condemned.”

91

The right to capture enemy's property on board The question a neutral ship, has been greatly contested by na- free ships.

The Marianna, 6 Rob., 24.

The Josephine, 4 Rob., 25.

tions whose interests were opposed to the affirmance of such a right. In 1780, the emperor of Russia proclaimed the principles of what was called

“ the Baltic code of neutrality,” to be maintained The armed by force of arms. One of the articles of this code neutrality.

was, that all effects belonging to the subjects of belligerent powers should be considered free on board of neutral ships, except only such as were contraband. Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, Naples and the United States acceded to the Russian principle of neutrality; but it was persistently and successfully opposed by Great Britain, and was abandoned in 1793. In 1801 another attempt was made by the Baltic powers to procure the adoption of the doctrines of armed neutrality, as set forth in 1780; but again it was defeated by Great Britain, and in June, 1801, a treaty was concluded between Great Britain and Russia, in which it was agreed that enemy's property was not to be protected on board of neutral ships. The whole subject is discussed with much ability by Mr. Wheaton in his excellent elementary treatise.

The conventional law upon the subject has undergone continual fluctuation, according to the varying interests and policy of maritime nations. In modern times, however, the preponderance of treaty stipulations is in favor of the maxim, free ships, free goods, sometimes, but not always, connected with the converse maxim, enemy ships, enemy goods.

During the war of 1812 between the United upon the sub- States and Great Britain, the prize courts of the

Doctrine of the
United States

Wheaton's Elements of International Law, 162, 183.

former nation with great uniformity enforced the ject of free principle of international law, that enemy's goods goods. in neutral vessels are liable to capture and confiscation, except as to such powers with whom and the United States government, treaty stipulations existed agreeing to a different rule.

its definition.

While neutral powers, by the law of nations, are Blockade and allowed to trade with the belligerents, in innocent merchandise, they are nevertheless prohibited from entering or attempting to enter for that purpose ports and places that are blockaded, and with which by virtue of the blockade, all commerce is interdicted. It is therefore of the highest importance to consider what is the character and true definition of blockade as established by the law of nations.

Blockade has been defined to be, the carrying into effect by an armed force, of that rule of war which renders commercial intercourse, with the particular port or place subjected to such force, unlaw. ful on the part of neutrals.

There is no belligerent right more conclusively The belligerestablished in the law of nations, and certainly blockade. none more necessary or important in its application, than the right of blockade, as it has been defined, determined and practically executed in modern times. The right derives its origin from the highest and purest sources of maritime jurisprudence, is sanctioned by the practice of the most enlightened nations, and is justly regarded as one of the great bulwarks of a nation's security and independence.

However clear and indisputable may be the right of blockade, and however just and necessary may

ade.

be the exercise of the right, it must, nevertheless, be conceded to be one of the harshest measures in

its operation of any known in the code of internaRequisites to tional law. It is for this reason, that, by the unilidity of block- form practice of the tribunals of all nations, upon

whom the duty devolves of giving effect to its
provisions, certain requisites have been required to
be established, in order to impart to the exercise
of the right, its full force and validity. These re-
quisites are deemed so indispensable to the legal
existence of blockade, that the failure of either one
of them has been uniformly considered to operate
as an entire defeat of the measure, notwithstanding
it
may

have been ordered and proclaimed by the supreme power of a nation.

These requisites are clearly stated by Lord Stowell to be—“ First, the existence of an actual blockade; Second, the knowledge of the party against whom proceedings are taken for its violation; and, Third, some act of violation, either by going in or coming out with a cargo laden after the commence

ment of the blockade."1 Actual block- It will be convenient to consider the subject of ade requisite.

blockade with reference to these three several prerequisites to its legality.

And first, the existence of an actual blockade.

The declaration of a blockade is an act of sove. reignty which can emanate only from the supreme authority of a nation.

The commander of a national vessel or the commodore of a squadron cannot order it, unless under such circumstances as to impel the presumption

1

The Betsy, 1 Rob., 29, vide also The Nancy, 1 Acton, 59.

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