might be easily accumulated *upon this point; but it is sufficient [*393] to say, that the decisions of the tribunals in the matters of Blockade have never been denied to be in accordance with reason, practice, and the judgments of the best writers. To these decisions, [*394] *therefore, reference will be almost exclusively made in the following pages. It will be seen that there is no act by which a Neutral more clearly and deservedly forfeits the immunities of his national character than by the violation of the Belligerent's Blockade.

CCC. 2. We have now to consider breaches of Blockade owing to alleged ignorance.

And first it must be observed, that ignorance of the law(n) is an inadmissible plea in the instance of Blockade, as in other cases, and may not be pleaded by any civilized State, Christian (o) or Infidel. Ignorance of the fact, however, may be, and often has been, successfully pleaded as a defence against the penalties incident to the breach of a Blockade.

This question as to ignorance of the fact is bound up with the question

dominium earum debiti consequendi causâ quæri poterit. Si damnum nondum dederit sed dare voluerit, ejus erit rerum retentione eum cogere ut de futuro caveat obsidibus pignoribus, aut alio modo. Quod si præterea evidentissima sit hostis mei in me injustitia, et ille eum in bello iniquissimo confirmet, jam non tantum civiliter tenebitur de damno, sed et criminaliter, ut is qui judici imminenti reum manifestum eximit: atque eo nomine licebit in eum statuere quod delicto convenit, secundum ea quæ de pœnis diximus; quare intra eum modum etiam spoliari poterit."-Grotius, 1. iii. c. 1, s. v. 2 3.

"Scilicet commercii intercludendi ergo Ordines Generales portus Flandriæ navibus bellicis obsederant, adeoque omnes quorumcunque naves, eo destinatas, indeque exeuentes, publicabant, quemadmodum ex ratione et gentium usu Urbibus obsessis nihil quicquam licet advehere, vel ex his evehere. Atque inde dicebat Admiralitas, ut et Ordines decreverunt, idem quoque juris esse in navibus, quæ antea nobis ereptæ et deinde venditæ erant, cum, obsessis portubus, etiam amicorum naves liceat intercipere. Quod ita verum est, si capiantur itinere nondum absoluto, dum navarchæ versantur in re illicita, absolutum autem iter non intelligi, nisi hæ naves proprium emptoris vel amicum portum subierint. Id vero, neque aliud Ordines Generales complexi sunt illo Decreto 26 Jun. 1630, ex quo ad eam, de qua nunc disputo, quæstionem recte argumentaberis, si et anno 1666, Angliam, Scotiam, Hiberniam, et omnia illa, quæ in Asia, Africa et America habebant Angli, classibus suis obsessa habuerint Ordines Generales. Relatum quidem est, eosdem Ordines anno 1652, quod ad Anglos, tale quid jactitasse, omnibus sic interdicto cum Anglis commercio, (Aitzema, 1. xxxii. pp. 774, 777,) sed quo jure jactitarint, nunc non quæro, contentus monere, eosdem Ordines anno 1663, Hispanis, cum hi Lysitaniam obsessam habere videri vellent, id ipsum negasse, quod contra Anglos antea sibi arrogaverant, sic enim proditum est in Annalibus."-(Apud eundem, 1. xliii. p. 858.) Bynkershoek, Q. J. P., l. i. c. iv.

"Jusqu'ici nous avons parlé du commerce des peuples neutres avec les états de l'ennemi en général. Il est un cas particulier où les droits de la guerre s'étendent plus loin. Tout commerce est absolument défendu avec une ville assiégée. Quand je tiens une place assiégée, ou seulement bloquée, je suis en droit d'empêcher que personne n'y entre, et de traiter en ennemi quiconque entreprend d'y entrer sans ma permission, ou d'y porter, quoi que ce soit: car il s'oppose à mon entreprise, il peut contribuer à la faire échouer, et par là me faire tomber dans tous les maux d'une guerre malheureuse. Le roi Démétrius fit pendre le maître et le pilote d'un vaisseau qui portait des vivres à Athènes, lorsqu'il était sur le point de prendre cette ville par famine. (Plutarchus in Demetrius.) Dans la longue et sanglante guerre que les Provinces-Unies ont soutenue contre l'Espagne pour recouvrer leur liberté, elles ne voulurent point souffrir que les Anglais portassent des marchandises à Dunkerque, devant laquelle elles avient une flotte."-Vattel, 1. iii. c. vii. 8. 117.

(n) Vide antè, p. 394.

(0) The Hurtige Hane, 3 Rob., p. 326.

of notice. It has been holden, that where vessels sail without a knowledge of the Blockade, a notice is necessary, but if they can be affected with the knowledge of the fact, a warning is not required. (p)

A Blockade may commence de facto, by a blockading force giving notice on the spot to those who come from a distance, and who may therefore be ignorant of the fact. Vessels going in are in that case entitled to a notice before they can be justly liable to the consequences of breaking a Blockade, but it is quite otherwise with vessels coming out of the port, which is the object of the Blockade; there no notice is necessary. After the Blockade has existed de facto for any length of time, it is impossible for those within to be ignorant of the forcible suspension of their commerce; the notoriety of the *thing supersedes the necessity of particular notice to each ship.(q)

[*395]

Ignorance may perhaps be successfully urged when knowledge of the Blockade is to be inferred from general notoriety alone, but such an argument will not avail when it is proved that the master of the ship was personally aware of the fact.(r)

The plea of ignorance is however not taken away by partial and imperfect information or notice, and, therefore, in a case where notice had been given to a merchant that there was a general Blockade of the coast of Holland-which was untrue in fact-that notice was holden not to be available, by limitation, to a Blockade of Amsterdam only, though such Blockade did actually exist. Such a notice took from the Neutral all power of election as to what other port of Holland he should go, when he found the port of his destination under blockade. A commander of a ship has no right to reduce a Neutral to this kind of distress, and for contravening such a notice he is not subject to condemnation.

CCCI. With respect to this plea of ignorance of the facts, it must be remembered that the breach of Blockade is one of the simplest and most universal operations of war.(t) The leading principles applicable to the infinite variety of circumstances which may occur, are these:

a. That where there has been a formal notification of the Blockade, a reasonable time must be allowed for it to take effect. (u)

B. That where there has been no formal notification, the knowledge of the party must be proved.

*That after a certain time, it lies prima facie upon the party to show that he was not apprised of the fact of the Blockade.(x)

[*396]

What that period of time should be, must always chiefly depend upon the circumstances of each case; but in cases relating to the agency of persons in an enemy's country during a Blockade, it has been judicially holden that something more than the mere strict principle of law is necessary in order to bind employers by their acts.(y) There must

(p) The Columbia, 1 Rob., p. 156. (9) The Vrow Judith, 1 Rob. p. 152. (r) The Tutela, 6 Rob., p. 181. (s) The Henrick and Maria, 1 Rob., p. 149. (t) The Hurtige Hane, 3 Rob., p. 326

(u) The Ringende Jacob, 1 Rob., p. 91. The Adelaide, 3 Rob., p. 284. The Jonge Petronella, 2 Rob., p. 131. The Betsey, 1, Rob., p. 334.

(x) The Betsey, 1 Rob., p. 332. The Adelaide Rose, note to the Neptunus, 2 Rob., p. 111. The Calypso, 2 Rob., p. 298.

(y) The Neptunus, 3 Rob., p. 173.

be time allowed to give the principal an opportunity of countermanding.(z)

CCCII. 3. Breaches of Blockade by the ingress or by the intended ingress of ships, is the next division of the subject.

It is altogether unlawful for a neutral ship to enter a blockaded port at all, even in ballast, (a) and for the purpose of bringing away the property of neutral merchants deposited there before the Blockade.

The legal presumption arising from entering a blockaded port will be, that the ship went in for the fraudulent purpose of delivering her cargo. And her coming out again without having delivered her cargo, will not of itself oust that presumption and remove the illegality as some unexpected change of circumstances may have altered her intention.(b) Such being the clear law with respect to entering a blockaded port, we have next to consider the penalty of approaching to such a port. And upon this (as upon other points connected with this [*397] *subject,) it is necessary to bear in mind the distinction between a blockade de facto and a Blockade by notification.(c)

An approach for the purpose of inquiry in the former case may be justifiable, and quite unjustifiable in the latter. But in either case a neutral ship may not innocently drop anchor, or continue in a situation in which it will be in her power to break the Blockade with impunity whenever she pleases. She may not approach close up to the Blockaded port, so as to be enabled to slip in without obstruction, when an opportunity presents itself. It has been deemed no unfair rule of evidence to hold, as a presumption de jure, that she goes there with an intention of breaking the Blockade; and if such inference should 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 the rules of war. (d)

Upon the same principle, a vessel is not permitted, under the plea of obtaining a pilot, or any similar pretext, to approach so near to a blockaded port as to place itself within the effectual protection of the shore.(e)

CCCIII. It may be that the distance of the country of the Neutral from the locality of the Blockade, or of the country of the blockading Power, justifies inquiry near the situation of the Blockade. Such an equitable and temperate rule was applied by Lord Stowell, during the last war, to ships coming from the American Continent. (f) It must be remembered,

(2) The Adelaide, ib., p. 285. Mr. Pritchard's Analytical Digest of Cases decided in the High Court of Admiralty, (London, 1847,) has greatly facilitated the labours of all subsequent compilers of Maritime and International Law. I am anxious to take this opportunity of acknowledging the advantage which I have derived from it.

(a) The Comet, 1 Edwards, p. 32. (c) The Neptunus, 2 Rob., p. 110.

(b) The Charlotta, ib., p. 252.

The Neutralität, 6 Rob., p. 35. The Gute Erwartung, ib., p. 182. The Arthur, 1 Edwards, p. 202. Radcliff v. Union Insurance Company, 7 Johnson's (Amer.) Rep., p. 47. Fitzsimmons v. Newport Insurance Company, 4 Cranch's (Amer.) Rep., p. 185.

(e) The Charlotte Christina, 6 Rob., p. 103. The Neutralität, ib., p. 35. (ƒ) The Betsey, 1 Rob., p. 334.

[*398]

however, that the Atlantic was not then, as now, *traversed in twelve or fourteen days from the European shores, or India made acquainted with intelligence of European affairs in less than six weeks. The principle, indeed, remains the same, but the application of it during the present war will of course be materially affected by the marvellous agencies of steam and electricity,(g) unknown to our forefathers.

CCCIV. But it has never been held legal, under any circumstances, that the inquiry should be made at the very mouth of the river or estuary blockaded, from the blockading vessels themselves. Nor is the ship to be released from condemnation because the master was ordered by his owners to make his inquiries at such places.(h)

Such inquiries should be made in the ports that lie in the way, and which furnish opportunities for inquiry without furnishing opportunities for fraud.(i)

The inquiry is to be made in a safe and permitted place, and in a safe and permitted manner.

It is possible, indeed, that innocency of intention may be established, even when directions have been given to the master to inquire at the mouth of the blockaded port. But the circumstances must be very peculiar.(k)

CCCV. We have been considering blockaded ports, but *the [*399] adjacent waters may be so connected with the ports as to render the approach to, and navigation in them by Neutrals, an act of equal guilt with the approach to the ports. And therefore approximation to the blockaded port, so as to expose the blockader's forces to the batteries on the coast, cannot be permitted under the pretext of taking a pilot for a neighbouring port.()

CCCVI. Nor will this approach be successfully veiled by a general allegation that the approaching ship was only in the roads adjacent to the port. The law upon this point is thus stated by Lord Stowell: "This is the case of a ship taken on a professed destination to Embden; but the fact is, she was seized in Ostend Roads. Every witness uses the same expression, 'Ostend Roads;' and I understand the situation of the vessel to have been at no great distance from that port. The term roads,' undoubtedly, is not a word of very definite meaning; there may be roads

(9) The analogy of the following case is applicable to this subject:-"A bottomry bond was granted in New York by the master of a ship, to obtain money for necessary repairs, the owner whereof was residing at St. John's, New Brunswick. A communication by electric telegraph existed between the two cities. The bondholder had previously acted as the general agent of the owner, and no intimation of the transaction was made by the master to the owner until after the execution of the bond. Held, upon appeal (reversing the sentence of the Admiralty Court,) that the master having the means of communication with the owner, no such absolute necessity existed as to authorise him to pledge the ship without communication with the owner, and the bond declared void."-The Oriental, 7 Moore's Privy Council Reports, p. 398.

(h) The Spes, 5 Rob., p. 76.

(i) The Betsey, 1 Rob., p, 334. The Posten, note to the Betsey, ib., p. 335. The Little William, 1 Acton's Rep., p. 151. Dr. Arnold, arguendo.

(k) The Little William, 1 Acton's Rep., p. 161, was such a case.

(7) The Charlotte Christine, 6 Rob., p. 101. The Gute Erwartung, ib., p. 182. The Neutralität, ib., p. 30. The Arthur, Edwards, p. 202.

which have no immediate connection with any particular port, as the Downs; other roads are so connected with particular ports as almost to form part of them; and these two descriptions of roads may be subject to very different considerations. If a ship comes into the Downs, which is the common passage and highway to the German Ocean, and to different parts of Europe, it would not be at all just to infer from the mere coming there that she is necessarily coming to a British port. But if the roads are of the other species, there is then reason to conclude that a ship comes there with a view to some communication with that particular port.

"From the description given of the roads of Ostend, they are, I think, to be taken as being of the latter species. The ship was lying within a sand, and within the protection of *the batteries, and in a place, [*400] as I conceive, where ships of large burden are usually unlivered by lighters, as the most commodious method of delivering their cargoes at Ostend. If I am correct in that view, a ship going there must be considered as in the port of Ostend; since, for the purpose of enforcing a Blockade, it is not necessary to restrict the meaning of the word port to the limits of the particular local 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 vessel is within the protection of the batteries, and in a place which vessels usually frequent for the purpose of unlivery, and from which importation into Ostend can safely be effected, and is not unusually effected, it would not unreasonably be held to be a part of that port."(m)

CCCVII. The ordinances of the American Congress of 1781, seem to have conceded this point to the extent of the English rule, for they made it lawful to take and condemn all vessels, of all nations, "destined to any such port," without saying anything of notice or proximity.(n)

CCCVIII. We have now to consider the legal effect of the intention of the master, or the destination of his ship.

A Dutch ordinance, of which Bynkershoek (o) approves, declared, in 1630, that vessels bound to the blockaded ports of Flanders were liable to confiscation, though found at a distance from these ports, unless they had voluntarily altered the voyage before coming in sight of the port.

It has been said (p) that the English Prize Courts have holden, that to sail for a blockaded port, knowing it to be such, is in itself an attempt, and an act sufficient to charge the party making it with a breach of the Blockade, without reference to the distance between the port of departure and the *blockaded port, or to the extent of the voyage performed [*401] when the vessel was arrested.(9)

The Courts of the North American United States, doubted at one time(r) whether they should recognize the legality of this doctrine to

(m) The Neutralität, 6 Rob., p. 34.

(n) Journals of Congress, vol. vii. p. 186. Kent's Comm., p. 153.

(0) Q. J. P., 1. i. c. xi.

(p) Vide ante, p. 390.

9) The Columbia, 1 Rob., p. 156. The Vrow Johanna, 2 Rob., p. 109. The Abby, 5 Rob., p. 256.

(r) Fitzsimmons v. Newport Insurance Company, 4 Cranch (Amer.) Rep., p. 199.