Prize which is enemy's property. It is a proceeding which is more likely to be attended with inconvenience to the merchant, than if he had embarked his goods on board a neutral vessel, inasmuch as the enemy vessel is liable to be captured by the belligerent, in which case the merchandise may undergo a change of destination, and fail to reach its intended market. That circumstance however is for the consideration of the neutral merchant, who cannot be presumed to contemplate resistance. "If a neutral master," "If a neutral master," says Sir British William Scott, "attempts a rescue, he violates a courts. duty which is imposed upon him by the Law of Nations, to submit to come in for enquiry, as to the property of the ship or cargo; and if he violates that obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner 95, and it would, I think, extend also to the confiscation of the whole cargo entrusted to his care, and thus fraudulently attempted to be withdrawn from the Rights of War 96. With an enemy-master the case is very different. No duty is violated by such an act on his part,-lupum auribus teneo,-and if he can withdraw himself he has a right to do so." On the other hand, if a neutral merchant should ship his goods on board an armed ship belonging to the enemy, Lord Stowell Neutral has held that such an act betrays an intention on the dise in an part of the merchant to withdraw his goods from armed ship visitation and search, for it is a presumptio juris et enemy. de jure that an armed ship will resist visitation and search. If a merchant accordingly has placed his goods under the protection of a belligerent force, he must be taken to intend to receive the protection of 94 The Catherina Elizabeth, 5 Ch. Rob. p. 232. 95 The Despatch, 3 Ch. Rob. p. 278. 96 The Washington, 2 Acton, p. 30. n. The Franklin, 2 Acton, p. 109. The Short Staple v. the United States, 9 Cranch, p. 55. merchan of the Prize States. 188 RIGHT OF A BELLIGERENT ON THE HIGH SEAS. it in such manner and under such circumstances as the belligerent may choose to apply it "7; in other words, he abandons the protection of Neutrality, and must for the time be regarded as adhering to the Enemy. The Supreme Court of the United States has held the United that there is no valid distinction of Right between the act of a neutral merchant who loads his goods on board an enemy merchant ship, and the act of a neutral merchant who ships his goods in an armed vessel belonging to the Enemy. The opinion of ChiefJustice Marshall, who with the majority of the Court decided in the case of the Nereide 98, "that a neutral merchant had a right to charter and lade his goods on board a belligerent armed vessel without forfeiting his neutral character," is entitled to great weight, not merely from the authority which attaches to the opinions of that eminent Judge, but also from the solidity of the reasoning upon which his judgment in that case proceeded. But the opinion of Mr. Justice Story was the other way, and coincided with the view of Lord Stowell. The Supreme Court of the United States, in February Term 1818, maintained the same view in the case of the Atalanta" as it had previously maintained in the Nereide; so that the decisions of the highest tribunal in the United States is on this point in direct conflict with the judgment of the English High Court of Admiralty. 97 The Fanny, I Dodson, P. 443. 989 Cranch, p. 388. This decision took place in February Term, 1815, and was nearly con- CHAPTER VI. ON BLOCKADE. Ancient practice of prohibiting all trade with the enemy-Object of a blockade-Penalties for the violation of a blockade-Regulated exercise of the Right of blockade-Legal requirements of a binding blockade-Declaration of the Congress of Paris-Characteristics of an effective blockade-Knowledge on the part of the Master of a vessel-Constructive Warning-Public Notification-General Notoriety-Notification dispensing with actual warning must accord with the fact of a blockade-Practice of the French Prize CourtsPractice of the United States Prize Courts-Violation of a blockade -Equity of British Prize Courts-Favourable construction of Licenses-Breach of blockade by egress-Egress lawful in certain cases-Duration of delictum after egress-Effect of fraud in egress -Cargo not always condemned with the ship-Extent of coast which may be placed under blockade Limited operation of a blockade-Effect of a blockade on Licenses-Effect of Licenses on a blockade. prohibiting with the § 98. THE practice of a belligerent Power prohibit- Ancient ing all trade with an Enemy is of very ancient date. practice of We have records of such a practice as early as the all trade commencement of the thirteenth century'. It seems enemy. to have been usual in that and the next following century for belligerent Powers on the outbreak of war to issue proclamations, warning all persons not to attempt to import victuals or other merchandise 1 Proclamation of Henry III. anno 1223. Rymer's Fœdera, Tom. I. p. 440. Robinson's Col- into the Enemy's territory, and thereupon to arrest and confiscate the vessels and merchandise of any who might contravene such warning, as the property of parties adhering to the Enemy'. The States General of Holland appear to have maintained this practice without any dispute on the part of other Nations as late as the latter part of the sixteenth century; but it came to be questioned towards the end of the seventeenth century as an immoderate exercise of belligerent Right, since which time it has been generally reprobated and disclaimed, and may now be regarded as fallen into desuetude. On the other hand, the practice of intercepting all merchant vessels trading with the Enemy's ports by means of armed vessels cruising off the Enemy's coast is as ancient as war itself. Lord Stowell, who was always extremely reluctant to apply in its full rigour the European Law of Nations to subjects of the Ottoman Porte, considered the Law of Blockade to be an exception3, on the ground that a blockade was one of the most universal and simple operations of war in all ages and countries, excepting such as were nearly savage. "It must not be understood by them," he says, "that if an European army or fleet is blockading a town or port, they are at liberty to trade with that port. If that could be maintained, it would render the operation of a blockade perfectly nugatory. They in common with all other Nations must be subject to this first and elementary principle of blockade, persons are not to carry into the blockaded port supplies of any kind. It is not a new operation of war; it is almost as old and as general as war itself. that 2 Letter of Edward II of England to Philip V of France. Tanquam dictis inimicis adhærentes. Rymer's Foedera, Tom. III. p. 880. 3 The Kinders Kinder, 2 Ch. Rob. p. 89. The subjects of the Barbary States could not be ignorant of the general rules applying to a blockaded place, so far as concerns the interests and duties of neutrals." blockade. § 99. The object of a blockade is to reduce the enemy Object of a to surrender by cutting off his supplies of every kind. War being a contention by force in the prosecution of Right, the primary object of war is to constrain the wrong-doing Nation to desist from doing wrong, and to make compensation for past injury. With this object, it is lawful for a belligerent to seize the property of an enemy as a pledge of redress for the past, and of good conduct for the future; and if the Enemy resist, to use force; and if it should be necessary in self defence, even to take away an enemy's life. The intercepting all supplies going to an enemy is a milder alternative, the immediate effect of such a measure being to constrain the Enemy to submit by the inconvenience to which the failure of his supplies will expose him. Blockade is thus a more lenient proceeding in the conduct of a war than actual assault. The latter involves the necessary sacrifice of human life, and by the destruction of property which it entails, may risk to destroy the means whereby compensation may be made by the Enemy for past injury. The former gives to the Enemy the option of being spared the effusion of human blood, whilst the belligerent at the same time refrains from destroying property. As between belligerent parties the establishment of a blockade is thus obviously not an improper use of superior force, and as the introduction of supplies by neutral merchants into a blockaded port must necessarily tend to frustrate the purpose of the belligerent party, which is to reduce 4 The Hurtige Hane, 3 Ch. Rob. p. 325. |