to exempt a party from all penalties, there would be no end to such excuses (i). Want of provisions is an excuse, which will not on light grounds be received; because an excuse to be admissible must shew an imperative and overruling compulsion to enter the port under blockade, which can scarcely be said in any instance of mere want of provisions. It may induce a master to seek a neighbouring port, but it can hardly ever force a person to resort exclusively to the blockaded port (k). Where a master, after having been warned off a blockaded port, declared his intention of going to it, and was found near the same place with his ship's head towards the blockaded port, he was held guilty of a breach of blockade. A master is bound, on the first notice, to take himself out of an equivocal situation; and if he obstinately refuses or neglects to do so, such conduct will amount to a breach of blockade (1). So it is no excuse that a ship went into a blockaded port to get a pilot to carry her into a lawful port (m). It has been repeatedly determined, that a ship is not at liberty to go up to the mouth of the blockaded port even to make inquiry. That in itself is a consummation of the offence, and amounts to an actual breach of blockade (n). If a ship comes into roads, which are so connected with a particular port as almost to form part of it, there is reason to conclude that she comes there with a view to some communication with that particular port. And where a ship was lying within a sand, and within the protection of the batteries in a place where ships of large burden are usually unlivered by lighters, as the more commodious mode of delivering their cargoes, it was held that she must be considered to be within the port; since, for the purpose (i) The Spes and Irene, 5 Rob. 79. (k) The Fortuna, 5 Rob. 27; Hartige Hane, 2 Rob. 124; The Neutralitet, 6 Rob. 32. (1) The Apollo, 5 Rob. 287. (m) The Elizabeth, Edw. 198. (n) Per Cur. The James Cook, Edw. 263; The Posten, 1 Rob. 335, (n); The Arthur, Edw. 202. of enforcing a blockade, it is not necessary to restrict the meaning of the word port to the limits of the particular port regulations, which may not extend beyond the pier head. A belligerent is not bound to that restricted sense of the word. If the situation of the vessels is within the protection of the batteries, and in a place which vessels usually frequent for the purpose of unlivery, and from which importation may be safely, and is not unusually, effected, it would not unreasonably be held to be part of the port (o). Where a ship was not in the port, but near it, the Court strongly inclined to hold, that a neutral ship has no right to anchor in such a spot, where she may have the opportunity of slipping into the blockaded port without molestation; that a belligerent is not called upon to admit that neutral ships may innocently place themselves in a situation, where they may with impunity break the blockade when they please; and that it would be no unfair rule of evidence to hold, as a presumption de jure, that she goes there with an intention of breaking the blockade. If such an inference may possibly operate with severity in particular cases, where the parties are innocent in their intentions, it is a severity necessarily connected with the rules of evidence, and essential to the effectual exercise of this right of war. If the belligerent country has a right to impose a blockade, it must be justified in the necessary means of enforcing that right; and if a vessel, under pretence of going further, may approach close up to a blockaded port, so as to be enabled to slip in without obstruction, it would be impossible that any blockade could be maintained. In this case, however, it was unnecessary to lay down the rule, because the Trinity Masters found, that it was not a prudent or natural course for the master to have resorted to such a port as Ostend for the mere purpose of obtaining a pilot to Flushing; and the Court therefore inferred, that the ship had been brought into that (9) The Neutralitet, 6 Rob. 34. situation with a fraudulent purpose (p). So when the master for the professed purpose of taking a pilot on board stood in within a mile of the shore, after he had seen the pilot-boat coming out to him, the Court held, that whatever the equivocal cause of such a situation may be, a person cannot be allowed to approach so near to a blockaded port as to place himself almost within the protection of the shore, and, with no necessity existing, to allow such an approach would render the whole purpose of the blockade perfectly nugatory (q). So when the master was steering a course, which would have carried him directly to the blockaded port, with the professed intention of running close under the land to obtain a pilot to take him to a lawful port, that was held to be a fraudulent violation of the blockade. It is impossible that any blockade can be maintained, if the practice is allowed, that a vessel with a destination to a port not interdicted shall be at liberty to pursue her course in such a manner as must draw the cruisers employed on that service under the range of the enemy's batteries (r). So, where a master after having spoken an English frigate, from which he might have made inquiry, was found steering directly into the bay of the blockaded port, with the professed purpose of ascertaining the land (s). So vessels are not allowed to call for orders at blockaded ports. For, if that were permitted, it would enervate the whole effect of the blockade, because it would be impossible to devise any means by which they could be prevented from delivering their cargoes there (t). So where the owners informed the master that the blockade would probably be at an end before he arrived, and directed him to proceed to the mouth of the port; it was held, that the neutral merchant is not to speculate (p) The Neutralitet, 6 Rob. 34. (9) The Charlotte Christina, 6 Rob. 101. (s) The Adonis, 5 Rob. 256. (t) The Courier, Edw. 249. upon the probability of the termination of the blockade; to send his ships to the very mouth of the port and say, if you do not meet with the blockading force, enter; if you do, ask a warning and proceed elsewhere. The rule is, that after knowledge of an existing blockade, you are not to go to the very station of the blockade under pretence of inquiry. If particular parties are innocent in their intention, it is still a measure of necessary caution and preventive legal policy to hold the rule general against the liberty of inquiring at the very mouth of the blockaded port, which would amount in practice to an universal license to attempt to enter, and on being prevented to claim the liberty of going elsewhere (u). A ship must not go up to the blockading squadron to obtain information of the blockade (v). Nor is it more permissible to go up to a blockading squadron to inquire for a pilot, than to procure information relative to the blockade itself. Of the two it seems less venial, because in that case the fact of an actual knowledge of the blockade is admitted; in the latter, there is at least the possibility of ignorance. Such an excuse could not be admitted without a total abandonment of belligerent rights (w). The subjects of America are bound equally with those of other countries to all the general rules of observance of a blockade duly imposed. At the same time looking to the great distance at which they are placed, the Court has held, even where 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. It was held, that ships sailing from America, before the knowledge of blockade had reached America, should be entitled to a notice even at the blockaded port; and that ships sailing afterwards, might sail (u) The Spes and Irene, 5 Rob. 76. (r) The Posten, 1 Rob. 335, (n), compared with the Betsey, ibid. (w) The Arthur, Edw. 206. on a contingent destination even to that port, with the purpose of calling at some British port for information, and that they should be allowed the benefit of such contingent destination, to be ascertained and rendered definite by the information which they should receive in Europe. But as to the line of caution to be observed in this state of uncertainty, the Court has always expected, that the inquiry should be made at some British ports in the Channel. It could not be, that ships should be permitted to resort to the ports of the blockaded country for this 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. In no case has it been held, that they might sail to the mouth of the blockaded ports to inquire, whether a blockade, of which they had received previous formal notice, was still in existence or not. The ports of the blockading country are certainly the proper ports for inquiry; 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, that may be necessary to fix the destination, at some of the British ports in the Channel (a). When a ship's papers hold out a destination, which is inconsistent with her course, the legal conclusion is, that the port of her destination is dissembled, because it is one that could not safely be disclosed (y). The act of egress is as culpable as the act of ingress, and a blockade is just as much violated by a ship passing outwards as inwards. A blockade is a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of the place, and a neutral is no more at liberty to assist the traffic of exportation (x) The Shepherdess, 5 Rob. 152; The Spes and Irene, 5 Rob. 76. (y) The Mentor, Edw. 207. |