cargo be enemy's property; and that mistakes may not be committed by captors in the eager pursuit of gain, by which injustice may be done to neutral subjects, and national quarrels produced with the foreign states to which they belong. If it is impossible to bring in, the next duty of a captor is to destroy enemy's property; if it be doubtful, whether it be enemy's property, and impossible to bring it in, no such obligation arises, and the safe and proper course is to dismiss. Where it is neutral, the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own state; to the neutral it can only be justified under such circumstances by a full restitution in value. These are rules so clear in principle, and so established in practice, that they require neither reasoning nor precedent to illustrate or support them. If a neutral or protected ship is destroyed by a captor, either wantonly or under an alleged necessity, in which she herself is not directly involved, the captor or his government is answerable for the spoliation. If an enemy's ship is protected by a license, and the captor knows of the license, either from its production, or from any other circumstances that ought to have satisfied him of its existence, he is liable to the whole extent of the mischief done. But if the existence of the license is not disclosed to him by those, whose duty it is to inform him, and he has no sufficient means to inform himself, he is not a wrongdoer. There is no case, in which the rule de non existentibus et non apparentibus can more justly apply, than where a man is called upon to answer for a loss occasioned by the act of concealment of the complainant himself. If a ship, armed with a protecting license, which is not produced or alleged at the time of the capture, is brought in, the Court would subsequently restore that vessel; but it would indemnify the captor to the utmost extent of all the expense he had been put to by that concealment or denial; and if a ship is justifiably destroyed under

an ignorance so produced, the Court owes the captor the same protection to the fullest extent. Hence, where a captor destroyed an enemy's vessel protected by a license, but the master had denied the possession of any license, and did not produce it till it was too late to prevent the destruction of the vessel; it was held, that the captor was not responsible (p). But where a protected vessel was unjustifiably captured, under an erroneous opinion that the license produced was invalid; and was destroyed, because the captor could not spare men to take her to a British port, nor allow her to go to her own port, because she would have furnished important information to the enemy; it was held, that these circumstances might make the destruction of the vessel a meritorious act, as far as the captor's government was concerned, but furnished no reason why the owner should be a sufferer; and restitution was decreed with costs and damages (q). Where the validity of the license was so far doubtful as to render the capture justifiable, simple restitution was decreed (r).

178

CHAPTER IV.

OF THE RIGHT OF BLOCKADE.

EVERY belligerent has a right to blockade the ports of his enemy; but in order to render neutral vessels liable to the penalty which attaches to a breach of blockade, there must be, First, An actual blockade imposed by competent authority. Secondly, Notice thereof. Thirdly, A violation of the blockade. There remains to be considered, Fourthly, The penalty which attaches to a breach of blockade.

First, A blockade is an act of sovereignty; and the commander of a king's ship cannot extend it (a). But a commander going out to a distant station is presumed to carry with him such a portion of sovereign authority delegated to him, as may be necessary to provide for the exigencies of the service on which he is employed. On stations in Europe, where government is almost at hand to superintend and direct the course of operations, under which it may be expedient that particular hostilities should be carried on, it may be different. But in distant parts of the world it cannot be disputed, that a commander must be held to carry with him sufficient authority to act as well against the commerce of the enemy, as against the enemy himself, for the more immediate purpose of reduction. The authority of a commander in an expedition will not be affected, as to any but his own government, by his having acted irregularly in entering upon it without orders.

(a) Henrick and Maria, 1 Rob. 148.

However irregularly he may have acted, the subsequent adoption of his acts by government will have the effect of legitimating them, so far as the subjects of other governments are concerned. In such a case, a blockade imposed by a commander could not be impeached on the ground of want of regular authority; and however irregularly he might be deemed to have acted towards his own government, it is that for which he is in no manner answerable to other states; and it is not open to the subjects of other states to dispute the validity of the blockade (b). A mere proclamation that a place is invested is insufficient to constitute a legal blockade (c). For that purpose, it is necessary that the place should be invested by a competent force. The parties, who formed the armed neutrality, understood blockade in this sense, and Russia, who was the principal party in that confederacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter it (d). The West India islands were declared under blockade by Admiral Jarvis, but the Lords held, that as the fact did not support the declaration, a blockade could not be deemed legally to exist (e). A blockade commences from the time a force is stationed, to prevent communication (f). Where a vessel, coming out of a blockaded port, was captured by two armed ships, about seven miles from the coast, it was argued, that there was no blockade de facto, and that this small number of vessels only was a proof that there was no actual blockade. But the Court held, that it is not necessary, that the whole blockading squadron should lie in one tier; nor is it material that a vessel has escaped the rest; that these ships appeared to have been in the

(b) The Rolla, 6 Rob. 364.

(c) The Betsey, 1 Rob. 93.

(d) Per Cur. The Mercurius, 1 Rob. 84.
(e) Ibid.

(f) The Naples, 2 Dod. 284.

exterior line; and that, if there had been only these, it would have been quite sufficient (g). So, where a single frigate was employed on a blockade, where it appeared that the admiral on the station considered that ship completely adequate to the service to be performed (h). A legal blockade cannot exist, where no actual blockade can be applied. In the very notion of a complete blockade it is included, that the blockading force can apply its power to every part of the blockaded state. If it cannot, it is no blockade in that quarter on which its force cannot be brought to bear; and where such a partial blockade is undertaken, it must be presumed that this is no more than what was foreseen by the blockading state, which, nevertheless, thought fit to impose it to the extent to which it was practicable. The commerce, though partially open, is still subject to a pressure of difficulties and inconvenience. To cut off the power of immediate export and import from the ports of a country, is, in itself, no insignificant operation, although it may not be possible to exclude the benefit of an inland communication. If the blockade be rendered imperfect by this construction, it must be ascribed to the physical impossibility of the measure, by which the extent of its legal pretensions is unavoidably limited. On this ground it was held, that a cargo sent from Amsterdam to Embden by an internal canal navigation, with an ulterior destination to London, was not liable to confiscation by reason of the blockade of Amsterdam (i). If a blockade be not regularly maintained, but some unprivileged ships are allowed to come out, and others to go in, such a relaxation destroys the legal effect of the blockade. For a blockade is an uniform universal exclusion of all vessels not privileged by law. If such ships are

(g) The Neptunus, 1 Rob. 170.

(h) The Nancy, 1 Acton, 63.

(i) The Stert, 4 Rob. 65; The Julia, 1 Dod. 169, (n); The Ocean, 3 Rob. 297.