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the same owners. The innocence of any particular article is not usually admitted, to exempt it from the general confiscation. By the ancient law of Europe, the ship, also, was liable to condemnation; and such a penalty was deemed just, and supported byt he general analogies of law, for the owner of the ship had engaged it in an unlawful commerce, and contraband goods are seized and condemned ex delicto. But the modern practice of the courts of admiralty, since the age of Grotius, is milder; and the act of carrying contraband articles is attended only with the loss of freight and expenses, unless the ship belongs to the owner of the contraband articles, or the carrying of them has been connected with malignant and aggravating circumstances; and among those circumstances, a false destination and false papers are considered as the most heinous. In those cases, and in all cases of fraud in the owner of the ship, or of his agent, the penalty is carried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and the innocent parts of the cargo. This is now the established doctrine; but it is sometimes varied by treaty, in like manner as all the settled principles and usages of nations are subject to conventional modification."
A neutral may also forfeit the immunities of his national Law of character by violations of blockade; and, among the rights of belligerents, there is none more clear and incontrovertible, or more just and necessary in the application, than that which gives rise to the law of blockade. Bynkershoecke says,
a Bynk. Q. J. Pub. b. 1. ch. 12 and 14. Heinec. de Nav. ob. Vect. Merc. vetit. Com. ch. 2. sec. 6. Opera, tom. 2. 348. The Staadt Embden, 1 Rob. 23. The Jonge Tobias, 1 Roh. 277. The Franklin, 3 Rob. 217. The Neutralitat, 3 Rob. 295. The Edward, 4 Rob. 68. The Ranger, 6 Rob. 125.
In the treaty between the United States and the Republic of Colombia, it is provided, that contraband articles shall not affect the rest of the cargo, or the vessel, for it is declared that they shall be left free to the owner.
c Q. J. P. b. 1. c. 4. sec. 11.
it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius considers the carrying of supplies to a besieged town, or a blockaded port, as an offence exceedingly aggravated and injurious. They both agree that the neutral may be dealt with severely; and Vattel says, he may be treated as an enemy. The law of blockade is, however, so harsh and severe in its operation, that, in order to apply it, the fact of the actual blockade must be established by clear and unequivocal evidence; and the neutral must have had due previous notice of its existence; and the squadron allotted for the purposes of its execution, must be fully competent to cut off all communication with the interdicted place or port; and the neutral must have been guilty of some act of violation, either by going in, or attempting to enter, or by coming out with a cargo laden after the commencement of the blockade. The failure of either of the points requisite to establish the existence of a legal blockade, amounts to an entire defeasance of the measure, even though the notification of the blockade had issued from the authority of the government itself.c
A blockade must be existing in point of fact, and, in order to constitute that existence, there must be a power present to enforce it. All decrees and orders, declaring extensive coasts, and whole countries, in a state of blockade, without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law. The ancient authorities all referred to a strict and actual siege or blockade. The language of Grotius is oppidum obsessum vel Portus clausus, and the investing power must be able to apply its force to every point of the
a B. 3. c. 1. sec. 5.
b B. 3. c. 7. sec. 117.
c The Betsey, 1 Rob. 78. 1 Chitty on Commercial Law, 450. d B. 3. c. 1. sec. 5.
blockaded place, so as to render it dangerous to attempt to enter, and there is no blockade of that part where its power cannot be brought to bear. The definition of a blockade given by the convention of the Baltic powers in 1780, and again in 1801, and by the ordinance of Congress in 1781, required that there should be actually a number of vessels stationed near enough to the port to make the entry apparently dangerous. The government of the United States have uniformly insisted, that the blockade should be effective by the presence of a competent force, stationed, and present, at or near the entrance of the port; and they have protested with great energy against the application of the right of seizure and confiscation to ineffectual or fictitious blockades.b
The occasional absence of the blockading squadron, produced by accident, as in the case of a storm, and when the station is resumed with due diligence, does not suspend the blockade, provided the suspension, and the reason of it, be known; and the law considers an attempt to take advantage of such an accidental removal, as an attempt to break the blockade, and as a mere fraud. The American government seemed disposed to admit the continuance of the blockade.in such a case; and the language of the judicial authorities in New-York, has been in favour of the solidity and justness of the English doctrine of blockade on this
a The Mercurius, 1 Rob. 67. The Betsey, 1 Rob. 78. The Stert, 4 Rob. 65. Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804.
b Mr. King's Letter to Lord Grenville, May 23d, 1799. Mr. Marshall's Letter to Mr. King, September 20th, 1799. Mr. Madison's Letter to Mr. Pinckney, October 25th, 1801. Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804. Mr. Pinckney's Letter to Lord Wellesley, Jan. 14th, 1811.
c The Frederick Molke, 1 Rob. 72. The Columbia, 1 Rob. 130. The Juffrow Maria Schroeder, S Rob. 155. The Hoffnung, 6 Røb. 116, 7.
d Mr. Marshall's Letter to Mr. King, September 20th, 1799. VOL. I.
point. But if the blockade be raised by the enemy, or by applying the naval force, or part of it, though only for a time, to other objects, or by the mere remissness of the cruisers, the commerce of neutrals to the place ought to be free. The presence of a sufficient force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade. He looks only to the matter of fact, and if the blockading squadron is removed when he arrives before the port, and he is ignorant of the cause of the removal, or if he be not ignorant, and the cause be not an accidental one, but voluntary, or produced by an enemy, he may enter, without being answerable for a breach of the blockade. When a blockade is raised voluntarily, or by a superior force, it puts an end to it absolutely; and if it be resumed, neutrals must be charged with notice de novo, and without reference to the former state of things, before they can be involved in the guilt of a violation of the blockade.
The object of a blockade is not merely to prevent the importation of supplies, but to prevent export as well as import, and to cut off all communication of commerce with the blockaded port. The act of egress is as culpable as the act of ingress, if it be done fraudulently; and a ship coming out of a blockaded port is, in the first instance, liable to seizure, and, to obtain a release, the party must give satisfactory proof of the innocence of his intention. But, according to modern usage, a blockade does not rightfully extend to a neutral vessel found in port when the blockade was instituted, nor prevent her coming out with the cargo, bona fide purchased, and laden on board before the
a Radcliff, J. 2 Johnson's Cases, 187. Johnson's Rep. 38.
b Williams v. Smith, 2 Caines, 1.
to Mr. King, September 20th, 1799.
Radcliff v. U. Ins. Co. 7
Letter of the Secretary of State The Hoffnung, 6 Rob. 112.
c Bynk. Q. J. P. b. 1. ch. 4. The Frederick Molke, 1 Rob. 72. The Neptunus, 1 Rob. 144. The Vrow Judith, 1 Rob. 126.
commencement of the blockade. The modern practice does not require that the place should be invested by land as well as by sea, in order to constitute a legal blockade; and if a place be blockaded by sea only, it is no violation of belligerent rights for the neutral to carry on commerce with it by inland communications."
It is absolutely necessary that the neutral should have had due notice of the blockade, in order to affect him with the penal consequences of a violation of it. This information may be communicated to him in two ways: either actually, by a formal notice from the blockading power; or constructively, by notice to his government, or by the notoriety of the fact. It is immaterial in what way the neutral comes to the knowledge of the blockade. If the blockade actually exists, and he has knowledge of it, he is bound not to violate it. A notice to a foreign government, is a notice to all the individuals of that nation, and they are not permitted to aver ignorance of it, because it is the duty of the neutral government to communicate the notice to their people. In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this difference between a blockade regularly notified, and one without such notice that, in the former case, the act of sailing for the blockaded place, with an intent to evade it, or to enter contingently, amounts, from the very commencement of the voyage, to a breach of the blockade, for the port is to be considered as closed up, until the blockade be formally revoked, or actually raised; whereas, in the latter case, of a blockade de facto, the ignorance of the party as to its continuance, may be received as an excuse for sailing to the
a The Betsey, 1 Rob. 78. The Vrow Judith, 1 Rob. 126. The Comet, 1 Edw. 32. Olivera v. Union Ins. Com. 3 Wheaton, 183. b The Ocean, 3 Rob. 297. The Stert, ibid. 299. note. Letter of the Secretary of State to Mr. King, Sept 20th, 1799.
c The Neptunus, 2 Rob. 110. The Adelaide, 2 Rob, 111. note.