§ 28. For a neutral ship to enter a blockaded port, is altogether unlawful. If she entered with a cargo, the legal presumption is, that she went in with the fraudulent intention of delivering it, and if she come out again without delivering it, that fact will not remove the presumption, because some change of circumstance may have altered that intention. If she entered in ballast, it is to be presumed that she went in for the purpose of bringing away property, and, for the same reason as above, her egress, still in ballast, will not oust that presumption. On this point, we quote the remarks of Duer: "A neutral ship," he says, "is not permitted to enter a blockaded port, even in ballast, for, although an exception of this kind is allowed in the case of an egress, the reasons on which it is founded are not applicable to an inward voyage. The egress is necessary to restore the ship to the beneficial use of the owners, and can tend, in no degree, to aid the commerce that is meant to be prohibited; but there can be no necessity for sending a ship to a blockaded port, and the intention of procuring a freight is the only assignable motive of the voyage. It is a fair presumption, that it is intended. that she shall return with a cargo, purchased or prepared in the blockaded port, not that she shall return in ballast, thus rendering the entire expedition a fruitless expense; nor that she will remain useless in port during the uncertain period that the blockade may continue. Nor is it admitted, in such cases, as an adequate excuse, that the object of the voyage was to bring away property that was absolutely locked up by the blockade, and which there was no other mode of extricating. It can rarely happen that other channels of communication are not open, and, in all cases, the property may be sold, and its value remitted in money or in bills. The only adequate excuse, is that of physical necessity." (Duer, On Insurance, vol. 1, pp. 671, 672; The Comet, 1 Edw. Rep., 32; The Charlotte Christine, 6 Rob. Rep., p. 103; Phillimore, On Int. Law, vol. 3, § 302; Wildman, Int. Law, vol. 2, p. 195; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 18; Bello, Derecho Internacional, pt. 2, cap. 8, § 5; The Charlotta, 1 Edw. Rep., p. 252.)

§ 29. We have already stated that any attempt to enter a blockaded port, after due information or warning, subjects

the party to the penalty of the law; "but, whether the mere declarations of the master, when detained and warned by a ship of the blockading force, of his intention to persist in the voyage, notwithstanding the warning, is to be considered as evidence of an actual attempt, justifying an immediate capture, is exceedingly doubtful." The mere hasty expressions of the master, resulting from resentment and surprise, certainly ought not to produce the condemnation of property entrusted to his care. But where the declaration of the master is proved to be deliberate and is accompanied by such facts as induce the court to believe that he really intended to carry it into effect, Sir William Scott was of opinion that it supersedes the necessity of proving further facts, and it is of itself a sufficient ground of condemnation. Chief Justice Marshall, in enumerating several general acts that would be justly regarded as evidence of such an attempt, adds: “possibly the obstinate determined declarations of the master, of his resolution to break the blockade, might bear the same interpretation." The supreme court of Pennsylvania have clearly decided that the declarations of the master, however positive and unequivocal, are evidence merely of intention, which, unless followed by some voluntary act after his release, can never constitute the offense to which alone. the penalty attaches. (Duer, On Insurance, vol. 1, pp. 672, 673, 675; The Apollo, 5 Rob. Rep., p. 289; Fitzsimmons v. Newport Ins. Co., 4 Cranch. Rep., p. 185; Calhoun v. Ins. Co. of Penn., 1 Binny, Rep. p. 293; The Neutralitet, 6 Rob. Rep., p. 35; Bello, Derecho International, pt. 2, cap. 8, § 5.)

§ 30. Although the declarations of the master, during his detention, will not constitute in itself sufficient cause for condemnation, his subsequent conduct, either with or without such declarations, may determine the lawfulness of his capture. It is his duty, on being duly warned, to alter the course of his voyage, as soon as he is at liberty to resume it, and to depart at once from the vicinity of the blockaded port. "He has no right to linger in its neighborhood, on the pretense of a deliberation as to the course he shall pursue, thus compelling the belligerent ship, either to leave him to enter the blockaded port without obstruction, or to wait for an indefinite time to watch his motions. He is bound to

manifest, by his immediate acts, his determination to obey the warning he had received. Hence a very short delay, an interval probably of less than an hour, will enable the belligerent to determine whether the master is pursuing the course he is bound to observe, or whether the temporary detention may not lawfully be followed by a final capture. It is scarcely possible that a neutral ship, thus circumstanced, shall escape, otherwise than by an abandonment in good faith of the voyage, that the warning she had received has rendered illegal." (Duer, On Insurance, vol. 1, pp. 675, 676; The Apollo, 5 Rob. Rep., p. 289; Fitzsimmons v. Newport Ins. Co., 4 Cranch Rep., p. 185; Ortolan, Diplomatie de la Mer, tome 2, ch. 1.)

§ 31. If the master persist in his voyage to a blockaded port, in defiance of a sufficient and legal warning, no excuse is ever admitted for his conduct, and the ship and cargo are invariably condemned. "His misconduct may, in no degree be imputable to his owners, yet their innocence affords no protection to their property. His acts may be in direct violation of their express instructions, may even amount to fraud or barratry; yet his owners will continue to be bound by their legal consequences, to the same extent, as if they had been performed under their previous sanction and authority. Indeed the rule, so far as relates to the ship, and the property of its owners, is universal, that they are concluded by the acts of the master. He is their agent, and the property they have entrusted to his care is, in all cases, responsible for his just observance of the duties of neutrality." (Duer, On Insurance, vol. 1, p. 676; Wildman, Int. Law, vol. 2, p. 194; The Shepherdess, 5 Rob. Rep., p. 262; The Vrouw Judith, 1 Rob. Rep., p. 150; The Mercurius, 1 Rob. Rep., p. 80.)

§ 32. There are but few cases where the entrance of a vessel into a blockaded port, or an attempt to enter, is ever justified or excused. A license from the government of the blockading state to enter the blockaded port is always a sufficient justification, and, as will be shown hereafter, all such licenses are to be liberally construed. But a general license to enter the port before the blockade would not be available after it had commenced; to constitute a sufficient protection it must authorize the vessel to enter the port as one blockaded. Again, a physical necessity, arising from the imme

diate need of water, or provisions, or repairs, produced by stress of weather, which leave no other alternative for safety. "But as, in order to cover a real design to dispose of a cargo," says Mr. Duer, "the pretext of a necessity is easily framed, the excuse is necessarily liable to great suspicion, and, in all cases, as justly subject to a rigid scrutiny. Hence, it is established that the evidence relied on must clearly show an imperitive and overruling compulsion to enter the particular port under blockade. It is not enough that it appears that there were existing and adequate causes to justify the ship in deviating from her voyage, to an intermediate port of necessity. It must also appear that she could not have proceeded, without hazard, to any other port than that blockaded, and that in no other port to which she could have proceeded, could her necessary wants have been supplied. In short, the necessity that alone can save her, when captured, from condemnation, must be evident, immediate, pressing, and, from its nature, not capable of removal by any other means than by the course she had adopted.” (Wildman, Int. Law, vol. 2, pp. 196, 202, 203; Duer, On Insurance, vol. 1, pp. 678, 679; The Hurtige Hane, 2 Rob. Rep., p. 124; The Fortuna, 5 Rob. Rep., p. 27; The Elisabeth, 1 Edw. Ad. De, p. 198; The Arthur, 1 Edw. Ad. De, p. 202; The Charlotta, 1 Edw. Ad. De, p. 252; The Hoffnung, 2 Rob. Rep., p. 163; Bello, Derecho Internacional, pt. 2, cap. 8, § 5; The Neutralitet, 6 Rob. Rep., p. 32.)

§ 33. As a general rule the egress of a ship, during blockade, is regarded as a violation of the blockade, and renders her liable, in the first instance, to seizure, and to exempt her from condemnation the most satisfactory proof is required to be given. There are, however, many cases where the egress is innocent, although the knowledge of the blockade, by the master, is admitted or proved. But the taking on board a cargo, with a knowledge of the blockade, is considered a fraudulent act, and the sailing of the ship, with such a cargo, a violation of the blockade. "Nor is it necessary that the whole of the cargo should be thus laden; where even a portion of the goods are taken on board after the existence of the blockade is known, the act is considered as a fraud that justifies a general condemnation. The ground of these decis

sions are, that after the commencement of a blockade, the interposition of a neutral to assist in any way the exportation of the property of the enemy, tends directly to relieve him from the distress that the blockade was meant to create. It would defeat a principal object of the hostile proceeding; consequently, after the commencement of the blockade, a neutral is no longer at liberty to to make any purchase in the place, with a view to exportation." (Phillimore, On Int. Law, vol. 3, § 313; Duer, on Insurance, vol. 1, pp. 681, 682; The Vrow Judith, 1 Rob. Rep., p. 150; The Neptunus, 1 Rob. Rep., p. 170; The Byfield, 1 Edw. Ad. Rep., p, 188; The Juno, 2 Rob. Rep., p. 119; The Calypso, 2 Rob. Rep., p. 298; The Betsey, 1 Rob. Rep., p. 98; The Rolla, 6 Rob. Rep., p. 371; Ortolan, Diplomatie de la Mer, tome 2, ch. 9; Wildman, Int. Law, vol. 2, p. 202; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 18; Bello, Derecho Internacional, pt. 2, cap. 8; $5; Hautefeuille, Des Nations Neutres, tit. 9, ch. 4, sec. 2.)

§ 34. There are a number of cases in which the egress of the neutral vessel, during a blockade, is justified or excused: First, If the ship is proved to have been in the blockaded port when the blockade was laid, she may retire in ballast, for such egress affords no aid to the commerce of the enemy, and has no tendency to defeat any legitimate purpose for which the blockade was established. Second, If the ingress was from physical necessity, arising from stress of weather, and the immediate need of water, or provisions, or repairs. Third, Where the entrance with a cargo was authorized by a license, such license is construed to authorize the return of the ship with a cargo. Fourth, Where a neutral ship, arriving at the entrance of a blockaked port, in ignorance of the blockade, is suffered to pass, there is an implied permission to enter, which fully protects her egress. But this implied permission does not, of necessary consequence, protect the cargo, for its owners may be guilty of a criminal violation of the blockade even where the ship is innocent. Fifth, A neutral ship, whose entry into the blockaded port was lawful, is permitted to return with her original cargo that has been found unsaleable, and reshipped during the blockade. Sixth, "Another, and a very equitable exception," says Duer, "is allowed in favor of a neutral ship that leaves the port in