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blockaded place, on a doubtful and provisional destination. The question of notice is a question of evidence, to be determined by the facts applicable to the case. The notoriety of a blockade is of itself sufficient notice of it to vessels lying within the blockaded port. In the case of the Adelaide, it was the doctrine of the English admiralty, that a notification given to one state, must be presumed, after a reasonable time, to have reached the subjects of neighbouring states, and it affects them with the knowledge of the fact, on just grounds of evidence. And after the blockade is once established, and due notice received, either actually or constructively, the neutral is not permitted to go to the very station of the blockading force, under pretence of inquiring whether the blockade had terminated, because this would lead to fraudulent attempts to evade it, and would amount, in practice, to a universal license to attempt to enter, and, on being prevented, to claim the liberty of going elsewhere. Some relaxation was very reasonably given to this rule, in its application to distant voyages from America; and ships sailing for Europe before knowledge of the blockade reached them, were entitled to notice, even at the blockaded port. If they sailed after notice, they might sail on a contingent destination for the blockaded port, with the purpose of calling for information at some European port, and be allowed the benefit of such a contingent destination, to be rendered definite by the information. But in no case is the information, as to the existence of the blockade, to be sought at the mouth of the port.
A neutral cannot be permitted to place himself in the vicinity of the blockaded port, if his situation be so near that he may, with impunity, break the blockade whenever
a The Columbia, 1 Rob. 130. The Neptunus, 2 Rob. 110. b 2 Rob. 111. in notis.
The Spes and Irene, 5 Rob, 76.
he pleases, and slip in without obstruction. If that were to be permitted, it would be impossible that any blockade could be maintained. It is a presumption, almost de jure, that the neutral, if found on the interdicted waters, goes there with an intention to break the blockade; and it would require very clear and satisfactory evidence to repel the presumption of a criminal intent."
The judicial decisions in England, and in this country, have given great precision to the law of blockade, by the application of it to particular cases, and by the extent, and clearness, and equity of their illustrations. They are distinguished, likewise, for general coincidence and harmony in their principles. All the cases admit, that the neutral must be chargeable with knowledge, either actual or constructive, of the existence of the blockade, and with an intent, and with some attempt, to break it, before he is to suffer the penalty of a violation of it. The evidence of that intent, and of the overt act, will greatly vary, according to circumstances; and the conclusion to be drawn from those circumstances will depend, in some degree, upon the character and judgment of the prize courts; but the true principles which ought to govern, have rarely been a matter of dispute. The fact of clearing out or sailing for a blockaded port, is, in itself, innocent, unless it be accompanied with knowledge of the blockade. Such a vessel, not possessed of such previous knowledge, is to be first warned of the fact, and a subsequent attempt to enter constitutes the breach. This was the provision in the treaty with England in 1794, and it has been declared in other cases, and is considered to be a correct exposition of the law of nations."
a The Neutralitat, 6 Rob. 30. The Charlotte Christine, ibid. 101. The Gute Erwartung, ibid. 182. Bynk. Q. J. Pub. b. 1. c. 11. The Arthur, 1 Edw. Rep. 202. Radcliff v. U. Ins. Co. 7 Johnson's Rep. 47. Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185.
b Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185. British Instructions to their fleets on the West India station, 5th of January, 1801. Letter of the Secretary of the Navy to Comno lore Preble, February 4th, 1804.
It has been a question in the courts in this country, whether they ought to admit the law of the English prize courts, that sailing for a blockaded port, knowing it to be blockaded, was, in itself, an attempt, and an act sufficient to charge the party with a breach of the blockade, without reference to the distance between the port of departure and the port invested, or to the extent of the voyage performed when the vessel was arrested. But in Yeaton v. Fry, the Supreme Court of the United States coincided essentially with the doctrine of the English prize courts; for they held, that sailing from Tobago for Curraçoa, knowing the latter to be blockaded, was a breach of the blockade; and, according to the opinion of Mr. Justice Story, in the case of the Nereide, the act of sailing with an intent to break a blockade, is a sufficient breach to authorize confiscation. The offence continues, although, at the moment of capture, the vessel be, by stress of weather, driven in a direction from the port, for the hostile intention still remains unchanged. The distance, or proximity of the two ports, would certainly have an effect upon the equity of the application of the rule. A Dutch ordinance, in 1630, declared, that vessels bound to the blockaded ports of Flanders, were liable to confiscation, though found at a distance from them, unless they had voluntarily altered the voyage before coming in sight of the port; and Bynkershoeck contends for the reasonableness of the order. What that distance must be is not defined; and if the ports be not very wide apart, the act of sailing for the blockaded port may reasonably be deemed evidence of a breach of it, and an overt act of fraud upon the belligerent rights. But a relaxation of the rule. has been required and granted in the case of distant voy
a Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185. Voss & Graves v. U. Ins. Co. 2 Johnson's Cases, 180. 469.
b 5 Cranch, 335.
c 9 Cranch, 440. 446.
d Q. J. P. b. 1. c. 11. 3 Rob. 326. in notis.
ages, such as those across the Atlantic, and the vessel is allowed to sail on a contingent destination for a blockaded port, subject to the duty of subsequent inquiry at suitable places. The ordinance of Congress of 1781, seems to have conceded this point to the extent of the English rule, for it made it lawful to take and condemn all vessels, of all nations, "destined to any such port," without saying any thing of notice or proximity.
The consequence of a breach of blockade is the confiscation of the ship; and the cargo is always, prima facie, implicated in the guilt of the owner, or master of the ship; and it lays with them to remove the presumption, that the vessel was going in for the benefit of the cargo, and with the direction of the owner. The old doctrine was much more severe, and often inflicted, not merely a forfeiture of the property taken, but imprisonment, and other personal punishment; but the modern, and milder usage, has confined the penalty to the confiscation of the ship and goods. If a ship has contracted guilt by a breach of blockade, the offence is not discharged until the end of the voyage. The penalty never travels on with the vessel further than to the end of the return voyage; and if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent force to vindicate the law. The penalty for a
a 5 Rob. 76. 6 Cranch, 29. Sperry v. The Delaware Ins. Co. 2 Wash. Cir. R. 243. Naylor v. Taylor, 9 B. & Cress. 718. b Journals of Congress, vol. 7. p. 186.
c The Mercurius. 1 Rob. 67. The Columbia. Ibid. 180. The Neptunus. 3 Rob.173. The Alexander. 4 Rob. 93. The Exchange. 1 Edw. 39.
d Bynk. Q. J. P. b. 1. c. 11.
e The Welvaart Van Pillaw. 2 Rob. 128. The Juffrow Maria Schroeder. 3 Rob. 147. In cases of contraband, the return voyage has not usually been deemed connected with the outward, and the offence was deposited with the offending subject; but in distant voyages, with contraband and false papers, the rule is different; the fraud contami
breach of blockade is also held to be remitted, if the blockade has been raised before the capture. The delictum is completely done away when the blockade ceases."
There are other acts of illegal assistance afforded to a my's de belligerent, besides supplying him with contraband goods, and relieving his distress, under a blockade. Among these acts, the conveyance of hostile despatches is the most injurious, and deemed to be of the most hostile and noxious character. The carrying of two or three cargoes of stores, is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, and it may lead to a defeat of all the projects of the other belligerent in that theatre of the war. The appropriate remedy for this offence is the confiscation of the ship; and, in doing so, the courts make no innovation on the ancient law, but they only apply established principles to new combinations of circumstances. There would be no penalty in the mere confiscation of the despatches. The proper and efficient remedy is the confiscation of the vehicle employed to carry them; and if any privity subsists between the owners of the cargo and the master, they are involved by implication in his delinquency. If the cargo be the property of the proprietor of the ship, then, by the general rule, ob continentiam delicti, the cargo shares the same fate, and especially if there was an active interposition in the service of the enemy, concerted and continued in fraud. b
Adistinction has been made between carrying despatches of the enemy between different parts of his dominions, and carrying despatches of an ambassador from a neutral
nates the return cargo, and subjects it to condemnation, as being one entire transaction. The Rosalie and Betty, 2 Rob. 343. The Nancy, 3 ibid. 122.
a The Lisette. 6 Rob. 387.