« ПретходнаНастави »
continued fact,” says Lord Stowell, “is a sufficient notice. It is impossible for those within to be ig. norant of the forcible suspension of their commerce, the notoriety of the thing supersedes the necessity of particular notice to each ship.”ı
An important distinction has been recognized and acted upon in various cases, between a formal notifi- . cation, through a notice to his government, or by notice to himself, and notification presumed from notoriety. In the former case, no plea of ignorance is ever permitted. In the latter, it is allowed to prevail, if actually established by the proof-and there is also this additional distinction that, in the case of formal notification, the mere act of sailing to the blockade, with a contingent design to enter, if the blockade be raised, is, of itself, a consummation of the offence of violation of the blockade, because, in the case of such a notification, the port is considered closed, until a formal revocation of the notification; but no such presumption arises where the notification is simply of the fact, by notoriety, and therefore, in such case, it is no offence for a neutral to pursue a voyage on a doubtful or provisional des. tination.
But, in order to charge a neutral with liabilities incident to a blockade, there must be not only an actually existing legal and effectual blockade, and formally or constructively known, but there must be a violation of the blockade so existing and
"The Vrow Judith, 1 Rob., 152.
• The Columbia, 1 Rob., 146, 156; The Mercurius, 1 Rob., 83 ; The Hurtige Hane, 3 Rob., 324; The Neptunus, 2 Rob., 110.
lation of a
known; and this leads to a consideration of the What is a viothird branch of the subject, namely, what is a vio- blockade. lation of a blockade.
The breach of a blockade may be either by going into or coming out of the blockaded place with a cargo laden after the commencement of the blockade; but, in order to constitute such a going into the blockaded port as will subject a neutral to the penalties of confiscation, it is not necessary that the entrance be completed. If the vessel is placed in the vicinity, in a situation so near that it may enter with impunity when it pleases; and especially if the vessel be placed so as to be under the protection of shore batteries, it is considered a breach of the blockade. In such cases, it is regarded as a presumption de jure, that the vessel is so placed with an intention to violate the blockade; and notwithstanding that such a presumption may operate severely in individual instances of innocence, “yet," says Lord Stowell, “it is a severity necessarily con. nected with the rules of evidence, and essential to the effectual exercise of this right of war."'i The blockade may be violated as well by the coming out of the blockaded place as by going in. The cases of innocent egress are, where vessels, lying in the blockaded port at the time of the commencement of the blockade, retire upon notification, without taking a cargo on board, unless such cargo were laden before the blockade was effective; and so laden, upon purchase before made in good faith. If a cargo be subsequently laden, the act is consid
1 The Neutralitet, 6 Rob., 30; The Charlotte Christine, 6 Rob., 101; The Gute Erwart ing, 6 Rob., 182.
ered fraudulent, and the egress of the vessel a violation of the blockade.1
A vessel coming out of a blockaded port, is, in all cases, liable to seizure, and the onus of proving innocent acts and intentions lies upon the claimant seeking restitution.
A ship transferred from one neutral to another, in a blockaded port, and retiring in ballast, is not guilty of a breach of the blockade. And if a neutral have sent in goods, previous to the blockade, which have proved unsalable, he them for the owner without violating the blockade.
If a neutral purchase a ship of the enemy in a blockaded port, that alone is an illegal act; and she may be captured at any time on her voyage to the country of the purchaser, even though driven to an intermediate port by stress of weather, being considered in delicto to the termination of the voy.
What excuses a violation of blockade.
There are cases in which a violation of a block
а ade is excusable; but the burden of exoneration is always upon the party claimant setting up the excuse; and it is an invariable rule that, however innocent may have been the intentions of the party, his conduct must be explained, not only in such way as to manifest such innocence, but he must bring it within the principles which have been established for the protection of belligerent rights,
The Vrow Judith, 1 Rob., 151; The Frederick Molke, 1
? The Welvaart Von Pillau, 2 Rob., 130.
and without which, no blockade can be maintained."
The invention of neutrals has been sufficiently fertile in providing excuses for a violation of blockade; such as want of provisions, stress of weather, to ascertain the land,“ intoxication of the master, the misinformation of foreign ministers; but such excuses are rarely allowed, and are always scrutinized by courts of admiralty with the greatest suspicion.
Positive information from a ship belonging to the blockading nation, that a particular port is not blockaded, though the information were erroneous, has been received as a valid excuse, by a vessel acting upon such information.
If a place be blockaded by sea, it is not considered a violation of the rights of the belligerent, for a neutral to carry on commerce with it by inland communications, though such trade is not per: mitted by the citizens of the blockading power.'
The question of blockade in relation to rivers flowing through conterminous states, is very learn. elly and elaborately discussed by Lord Stowell in a case on the capture of vessels in the Groningen Watt
, on a suggestion that they were bound from Hamburg to Amsterdam, then under blockade; the claim being given under the authority of the Prussian minister
, averring that the place in question was within the territories of the king of Prussia.10
"The Arthur, 1 Edwards, 203 ; The Byfield, ib., 188.
5 The Shepherdess, 5 Rob., 262. The Spes and Irene, 5 Rob., 79. The Neptunus, 2 Rob., 110. The Ocean, 3 Rob., 297. ? The Jonge Pieter, 4 Rob., 89. 10 The Twce Gebroeders, 3 Rob., 336.
Inland countries are allowed to import and to export through the ports of the enemy, subject, however, to strict proof of property.
Excuses for the violation of blockade, are listened to with a disposition to relax the severity of the law in favor of less civilized nations (like the king. dom of Morocco), whom it is considered should not be held bound by all the rules of the law of nations, as practised in more enlightened governments.?
Neutral merchants are not allowed to cover ene. my's property with other goods belonging to them in the same ship. “The regular penalty of such a proceeding,” says Lord Stowell, “is confiscation; for it is a rule of this court, which I shall ever hold till I am better instructed by the superior court, that if a neutral will weave a web of fraud of this sort, this court will not take the trouble of picking out the threads for him, in order to distinguish the sound from the unsound. If he is detect. ed in fraud, he will be involved in toto. A neutral surely cannot be permitted to say: 'I have endeav. ored to protect the whole, but this part is really my property; take the rest, and let me go with my own. If he will engage in fraudulent concerns
.' with other persons, they must all stand or fall together." It is no violation of a blockade, where a neutral owner, without knowledge of the fact, sends his vessel to the blockaded port, if the master, bona
The Magnus, 1 Rob., 31; The Active (Lords, Mar. 10, 1798). ? The Hurtige Hane, 3 Rob., 324.
3 The Eenrom, 2 Rob., 9; vide also The Betsy and George, 2 Gallison, 377; The St. Nicholas, 1 Wheaton, 417; and The For. tuna, 3 Wheat., 236.