can be no plea in the court of a belligerent. In the case of a blockade de facto only, it may be otherwise; but this is a case of a blockade by notification. Another distinction between a notified blockade and a blockade existing de facto only, is, that in the former the act of sailing for a blockaded place is sufficient to constitute the offence. It is to be presumed that the notification will be formally revoked, and that due notice will be given of it; till that is done, the port is to be considered as closed up; and from the moment of quitting port to sail on such a destination, the offence of violating the blockade is complete, and the property engaged in it subject to confiscation. It may be different in a blockade existing de facto only; there no presumption arises as to the continuance, and the ignorance of the party may be admitted as an excuse for sailing on a doubtful and provisional destination. (b)

Treaty § 516. A more definite rule, as to the notification of an stipulations as to notice. existing blockade, has been frequently provided by conventional stipulations between different maritime powers. Thus, by the 18th article of the treaty of 1794, between Great Britain and the United States, it was declared: "That whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." This stipulation, which is equivalent to that contained in previous treaties between Great Britain and the Baltic powers, having been disregarded by the naval authorities and prize courts in the West Indies, the attention of the British government was called to the subject by an official communication from the American government. In consequence of this communication, instructions were sent out, in the year 1804, by the Board of Admiralty, to the naval commanders and judges of the Vice-Admiralty Courts, not to consider any blockade of the French West India Islands as existing, unless in respect to particular ports which were actually invested; and then not to capture vessels

(b) The Neptunus, Hempel, Robinson's Adm. Rep. ii. 112.

bound to such ports, unless they should previously have been warned not to enter them. The stipulation in the treaty intended to be enforced by these instructions seems to be a correct exposition of the law of nations, and is admitted by the contracting parties to be a correct exposition of that law, or to constitute a rule between themselves in place of it. Neither the law of nations nor the treaty admits of the condemnation of a neutral vessel for the mere intention to enter a blockaded port, unconnected with any fact. In the above-cited cases, the fact of sailing was coupled with the intention, and the condemnation was thus founded upon. a supposed actual breach of the blockade. Sailing for a blockaded port, knowing it to be blockaded, was there construed into an attempt to enter that port, and was, therefore, adjudged a breach of blockade from the departure of the vessel. But the fact of clearing out for a blockaded port is, in itself, innocent, unless it be accompanied with a knowledge of the blockade. The right to treat the vessel as an enemy is declared by Vattel, (liv. iii. sect. 177,) to be founded on the attempt to enter; and certainly this attempt must be made by a person knowing the fact. The import of the treaty, and of the instructions issued in pursuance of the treaty, is, that a vessel cannot be placed in the situation of one having a notice of the blockade, until she is warned off. They gave her a right to inquire of the blockading squadron, if she had not previously received this warning from one capable of giving it, and consequently dispensed with her making that inquiry elsewhere. A neutral vessel might thus lawfully sail for a blockaded port, knowing it to be blockaded; and being found sailing towards such a port would not constitute an attempt to break the blockade, unless she should be actually warned off. (a)

Blockdriven off

ading force

by hostile

§ 517. Where an enemy's port was declared in a state of blockade by notification, and at the same time when the notification was issued news arrived that the block- attack. ading squadron had been driven off by a superior force of the enemy, the blockade was held by the Prize Court to be null and defective from the beginning, in the main circumstance that is essentially necessary to give it legal operation; and that it would be unjust to hold neutral vessels to the observance of a notifica

(a) Fitzsimmons v. The Newport Insurance Company, Cranch's Rep. iv. 185. Mr. Merry's Letter to Mr. Secretary Madison, 12th April, 1804. Wheaton's Rep. iii. Appendix, 11.

New no

tice, in such

case.

tion, accompanied by a circumstance that defeated its effect. This case was, therefore, considered as independent of the presumption arising from notification in other instances; the notification being defeated, it must have been shown that the actual blockade was again resumed, and the vessel would have been entitled to a warning, if any such blockade had existed when she arrived off the port. The mere act of sailing for the port, under the dubious state of the actual blockade at the time, was deemed insufficient to fix upon the vessel the penalty for breaking the blockade. (a) § 518. In the above case, a question was raised whether the notification which had issued was not still operative; but the court was of opinion that it could not be so considered, and that a neutral power was not obliged, under such circumstances, to presume the continuance of a blockade, nor to act upon a supposition that the blockade would be resumed by any other competent force. But in a subsequent case, where it was suggested that the blockading squadron had actually returned to its former station off the port, in order to renew the blockade, a question arose whether there had been that notoriety of the fact, arising from the operation of time, or other circumstances, which must be taken to have brought the existence of the blockade to the knowledge of the parties. Among other modes of resolving this question, a prevailing consideration would have been the length of time, in proportion to the distance of the country from which the vessel sailed. But as nothing more came out in evidence than that the squadron came off the port on a certain day, it was held that this would not restore a blockade which had been thus effectually raised, but that it must be renewed again by notification, before foreign nations could be affected with an obligation to observe it. The squadron might return off the port with dif ferent intentions. It might arrive there as a fleet of observation merely, or for the purpose of only a qualified blockade. On the other hand, the commander might attempt to connect the two blockades together; but this is what could not be done; and, in order to revive the former blockade, the same form of communication must have been observed de novo that is necessary to establish an original blockade. (a) 285

(a) The Tribeten Robinson's Adm. Rep. vi. 65.

e.-The proclamation of the blockade in the American

of violation

§ 519. 3. Besides the knowledge of the party, some Some act act of violation is essential to a breach of blockade; as necessary. either going in or coming out of the port with a cargo laden after the commencement of the blockade. (a)

civil war, by the President, April 19, 1861, had a clause that gave rise to doubt and difficulty. It says, “I have deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States and the laws of nations in such cases provided. For this purpose, a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave, any of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning; and, if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured," &c. This last sentence is omitted in the proclamation of 27th April, extending the blockade to the ports of Virginia and North Carolina. In answer to inquiries by Lord Lyons, Mr. Seward said that “the proclamation is mere notice of an intention to carry it into effect, and the existence of the blockade will be made known in proper form by the blockading vessels." (Lord Lyons to Lord Russell, May 4, 1861.) In answer to a further inquiry, whether it was the intention of the government to issue notice for each port as soon as the actual blockade of it should commence, Mr. Seward said, as reported by Lord Lyons to Earl Russell, "that the practice of the United States was not to issue such notices, but to notify the „blockade individually to each vessel approaching the blockaded ports, and to inscribe a memorandum of the notice having been given, on the ship's papers. No vessel was liable to seizure which had not been individually warned. The fact of there being blockading ships present to give the warning, was the best notice and best proof that the port was actually and effectually blockaded." And, in Mr. Seward's letter to Mr. Adams of June 8, 1861, he says, "The President's proclamation was a notice of the intention to blockade; and it was provided that ample warning should be given to vessels approaching and vessels seeking to leave the blockaded ports, before capture should be allowed. The blockade, from the time it takes effect, is everywhere rendered actual and effective."

On the 30th April, Commodore Pendergrast, in command of the squadron of the coasts of Virginia and North Carolina, issued a proclamation announcing the actual commencement of the blockade, in which he limits the warning to vessels which should approach the line of blockade in ignorance of its existence. This construction of the proclamation was never disavowed by the government.

When the prize causes came up in the District Courts, it was contended for the claimants, that, under the proclamation, every vessel, whether in fact knowing of the blockade or not, was entitled to receive one notice and warning on the spot from the blockading vessels, and that none but second comers could be condemned. But the prize courts, without exception, denied this position. They held that, by the law of nations, if a vessel was captured off the blockaded port, with a destination into that port, and is shown, either by testimony or the force of settled presumptions, to have had knowledge that a blockade of that port had been instituted, she was subject to condemnation, and would not be permitted to show that her purpose was to satisfy herself on the spot that the blockade existed, or that it was effective. If the vessel honestly desires such information, she must get it elsewhere and otherwise. And they

(a) The Betsey, Robinson's Adm. Rep. i. 93.

Thus, by the edict of the States-General of Holland, of 1630, relative to the blockade of the ports of Flanders, it was ordered that the vessels and goods of neutrals which should be found going

held that the proclamation was not intended to waive the rights of belligerents in that particular. The proclamation, it is true, was only notice of an intent to blockade an entire coast; and a further knowledge of an actual blockade of the port or section in question must be brought home to the vessel captured. In the absence of special official proclamations as to each port, the knowledge could be brought home to the vessel either by proof of the previous warning named in the first proclamation, or by the direct proofs or presumptions allowed by the law of nations in such cases, as notoriety at the port of departure, and other modes, aided by the general knowledge of the intent as conveyed by the proclamation. (The Revere, Sprague's Decisions, ii. and Law Reporter, xxiv. 276. Also, in the district of New York, before Judge Betts, the cases of The Delta, Hiawatha, Crenshaw, Hallie Jackson, Edward Bernard, Louisa Agnes, Cheshire, and Empress; and, in the Pennsylvania district, before Judge Grier, The Admiral. See Upton's Prize Law, 291-5.) This interpretation of the proclamation was sustained in the Supreme Court on appeal. (The Prize Causes, Black. ii. 635.) Judge Grier, in delivering the opinion of the court, says, “If the provision referred to in the proclamation of 19th April be applicable to the ports of Virginia, it must be considered in the light of surrounding circumstances." Referring to the proclamation of Commodore Pendergrast, as not disavowed by the government, he adds that the warning provided "was intended for the benefit of the innocent, not of the guilty. It would be absurd to warn parties who had full previous knowledge, According to the construction contended for, a vessel seeking to evade the blockade might approach and retreat any number of times; and, when caught, her captors could do nothing but warn her, and indorse the warning upon her register. The same process might be repeated at every port on the blockaded coast. Indeed, according to the literal terms of the proclamation, the Alabama might approach, and, if captured, insist upon the warning and indorsement on her registry, and then demand her discharge. A construction drawing after it consequences so absurd, is a felo de se."

After these decisions, the practice became settled, and no complaint was made by neutral powers against this contruction of the proclamation: and, under it, the law respecting notice of blockades was applied as heretofore in the English and American courts. (Spes and Irene, Rob. v. 77-81. Betsey, Ib. i. 334. Arthur, Edwards, 203. Columbia, Rob. i. 154-6. Apollo, Ib. v. 286-9. Mercurius, Ib. v. 82. Rolla, Ib. vi. 364. Franciska, Moore's Privy Council Cases, x. 58. Panaghia Rhomba, Moore's Privy Council Cases, xii. 168.)

In the Franciska (Moore's Privy Council Cases, x. 59), the following points respecting notification of blockade were decided: Although the blockade be de facto only, the neutral cannot claim a right to a warning by the blockading vessels on the spot, but is affected by any kind or means of knowledge which may be proved against him, directly or by presumptions, as, for instance, the notoriety of the blockade at his last port of departure. If an official notification is relied upon, it must not be larger than the fact. A notice that several neighboring ports are under blockade, when, in fact, some of them were not, is an invalid notice. It does not give the neutral the choice of ports, which a notice according to the facts should have given him; and such notice is not good as to the ports actually blockaded, and will not affect the neutral with knowledge as to those ports. So, if a blockade de facto exists, but the government have allowed privileges, to their own or the enemy's merchant vessels, of ingress or egress, for the benefit of its own trade, then, even if such blockade be valid against