LECTURE VII.

OF RESTRICTIONS UPON NEUTRAL TRADE.

THE principal restriction which the law of nations imposes on the trade of neutrals is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has long been a fruitful source of dispute between neutral and belligerent nations. (x)

1. Contraband of War. — In the time of Grotius, some persons contended for the rigor of war, and others for the freedom of

(x) England's position has been that all implements of war, including articles suited for naval construction, are contraband. Elsewhere it has been maintained to the extent of including coal, human beings, money, and written despatches, while France, in 1885, attempted, in coercing China, to include rice as a prime necessity of the Chinaman. The meaning of the term in the Declaration of Paris has not been as yet defined. According to Mr. Field's definition goods become contraband when "actually destined for the use of the hostile nation in war, but not otherwise." See 2 Jur. Rev. 95, 346, 351; Boyd's Wheaton's Elements of Int. Law (3d ed.), 651, 794; 3 Wharton's Digest, §§ 368, 390; 25 Revue de Droit Int. 7, 124, 239, 389; 26 id. 116, 214, 401; 27 id. 58. The British Admiralty Manual of Prize Law (1888) states that it is part of the Crown's prerogative to extend or reduce the list of contraband articles in time of war; and, subject to this

rule, enumerates contraband articles as follows: — (1) As absolutely contraband,

— Arms of all kinds and machinery for manufacturing arms; ammunition and materials for ammunition, including lead, potash, nitrate of soda, gunpowder, saltpetre, brimstone, and gun-cotton; military equipments and clothing; military stores; naval stores, including masts, spars, rudders, ship-timber, hemp, cordage, sail-cloth, pitch and tar, copper fit for sheathing, marine engines and all the component parts and materials used in the manufacture thereof; iron in any of the forms in which it is used for naval shipbuilding or repair. (2) As conditionally contraband, — Provisions and liquors fit for consumption in the army or navy; money; telegraphic materials, such as wire, porous caps, platinum, sulphuric acid and zinc; materials for railway construction; coal, hay, horses, resin, tallow, and timber.

commerce. As neutral nations are willing to seize the opportunity which war presents of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes (a) between things which are useful only in war, as arms and ammunition, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships, and naval stores, he says that they are sometimes lawful articles of neutral commerce, and sometimes not; and the question will depend upon circumstances existing {136} at the time.¹ They would be contraband if carried to a besieged town, camp, or port. In a naval war, it is admitted that ships and materials for ships become contraband, and horses and saddles may be included. (a) Vattel speaks with some want of precision,, and only says, in general terms, (b) that commodities particularly used in war are contraband, such as arms, military and naval stores, timber, horses, and even provisions, in certain junctures, when there are hopes of reducing the enemy by famine. Loccenius, (c) and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin and Pothier insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places. (d) The marine ordinance of Louis XIV. (e) included horses and their equipage, transported for military service, within the list of contraband, because they were necessary to war equipments; and that is, doubtless, the general rule. They are included in the restricted list of contraband articles mentioned in the treaty between the United States and Colombia, in 1825. Valin says that naval stores have been regarded as contraband from the beginning of the last

(a) B. 3, c. 1, sec. 5. (a) Rutherforth's Inst. b. 1, c. 9.

(b) B. 3, c. 7, sec. 112. (c) De Jure Maritimo, lib. 1, c. 4, note 9. (d) Valin, Comm. ii. 264; Pothier de Propriété, No. 104. (e) Des Prises, art. 11.

¹ The Peterhoff, 5 Wall. 28, 58; S. C. Blatchf. Pr. 463; Pistoye & Duverdy, t. i.

tit. vi. c. 2, § 3, p. 392. [See, generally, Hall, Int. Law, pt. 4, c. 5 and 6.]

century, and the English prize law is very explicit on this point. Naval stores, and materials for ship-building, and even corn, grain, and victuals of all sorts, going to the dominions of the enemy, were declared contraband by an ordinance of Charles I. in 1626. (f) Sail-cloth is now held to be universally contraband, even on a destination to ports of mere mercantile naval equipment; (g) and in the case of the Maria (h) it was held that {137} tar, pitch, and hemp, and whatever other materials went to the construction and equipment of vessels of war, were contraband by the modern law of nations; though formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. The executive government of this country has frequently conceded that the materials for the building, equipment, and armament of ships of war, as timber and naval stores, were contraband. (a) But it does not seem that ship timber is, in se, in all cases, to be considered a contraband article, though destined to an enemy's port. In the case of the Austrian vessel, Il Volante, captured by the French privateer, L'Etoile de Bonaparte, and which was carrying ship timber to Messina, an enemy's port, it was held, by the Council of Prizes at Paris, in 1807, upon the opinion of the advocate-general, M. Collet Descotils, that the ship timber in that case was not contraband of war, it being ship timber of an ordinary character, and not exclusively applicable to the building of ships of war. (b)

Questions of contraband were much discussed during the continuance of our neutral character in the furious war between England and France, commencing in 1793, and we professed to be governed by the modern usage of nations on this point. (c) The national convention of France, on the 9th of May, 1793, decreed that neutral vessels laden with provisions, destined to

(f) Robinson's Collec. Mar. 63. (g) The Neptunus, 3 C. Rob. 108. (h) 1 C. Rob. 287, Phil. ed.

(a) Mr. Randolph's Letter to M. Adet, July 6, 1795; Mr. Pickering's Letter to Mr. Pinckney, January 16, 1797; Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Minister, January 27, 1798.

(b) Répertoire universel et raisonné de Jurisprudence, par M. Merlin, ix. tit. Prise Maritime, sec. 3, art. 3. [S. C. Pistoye & Duverdy, i. 409.] [Money, bullion, &c., are contraband when destined for hostile use or to procure hostile supplies. United States v. Diekelman, 92 U. S. 520. — B.]

an enemy's port, should be arrested and carried into France; and one of the earliest acts of England, in that war, (d) was to detain all neutral {138} vessels going to France, and laden with corn, meal, or flour. It was insisted, on the part of England, (a) that, by the law of nations, all provisions were to be considered as contraband, in the case where the depriving of an enemy of those supplies was one of the means employed to reduce him to reasonable terms of peace; and that the actual situation of France was such as to lead to that mode of distressing her, inasmuch as she had armed almost the whole laboring class of her people, for the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended that corn, flour, and meal, being the produce of the soil and labor of the country, were not contraband of war, unless carried to a place actually invested. (b) The treaty of commerce with England, in 1794, in the list of contraband, stated, that whatever materials served directly to the building and equipment of vessels, with the exception of unwrought iron and fir planks, should be considered contraband, and liable to confiscation; but the treaty left the question of provisions open and unsettled, and neither power was understood to have relinquished the construction of the law of nations which it had assumed. The treaty admitted that provisions were not generally contraband, but might become so according to the existing law of nations, in certain cases, and those cases were not defined.

It was only stipulated, by way of relaxation of the penalty of the law, that whenever provisions were contraband, the captors, or their government, should pay to the owner the full value of the articles, together with the freight and a reasonable profit. Our government has repeatedly admitted that, as far as that treaty enumerated contraband articles, {139} it was declaratory of the law of nations, and that the treaty conceded nothing on the subject of contraband. (a)

(d) Instructions of 8th June, 1793.

(a) Mr. Hammond's Letter to Mr. Jefferson, September 12, 1793, and his Letter to Mr. Randolph, April 11, 1794.

(b) Mr. Jefferson's Letter to Mr. Pinckney, September 7, 1793, and Mr. Randolph's Letter to Mr. Hammond, May 1, 1794.

(a) Mr. Pickering's Letter to Mr. Monroe, September 12, 1795; his Letter to

The doctrine of the English admiralty, on the subject of provisions being considered contraband, was laid down very fully and clearly in the case of the Jonge Margaretha. (b) It was there observed, that the catalogue of contraband had varied much, and, sometimes, in such a manner as to make it difficult to assign the reasons of the variations, owing to particular circumstances, the history of which had not accompanied the history of the decisions. In 1673, certain articles of provision, as corn, wine, and oil, were deemed contraband, according to the judgment of a person of great knowledge and experience in the practice of the admiralty; and, in much later times, many other sorts of provisions have been condemned as contraband. In 1747 and 1748, butter and salted fish and rice were condemned as contraband; and those cases show that articles of human food have been considered as contraband, when it was probable they were intended for naval or military use. The modern established rule is, that provisions are not generally contraband, but may become so, under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. Among the circumstances which tend to preserve provisions from being liable to be treated as contraband, one is, that they are of the growth of the country which produces them. Another circumstance to which some indulgence is shown by the practice of nations, is when the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favorably considered than cordage; {140} and wheat is not considered as so objectionable a commodity, when going to an enemy's country, as any of the final preparations of it for human use. The most important distinction is, whether the articles were intended for the ordinary use of life, or even for mercantile ships' use, or whether they were going with a highly probable destination to military use. The nature and quality of the port to which the articles are going is not an irrational test. If the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port. But if the great predominant character of that

Mr. Pinckney, January 16, 1797; Instructions from the Secretary of State to the American Minister to France, July 15, 1797. (b) 1 C. Rob. [189], 159, ed. Phil.

port, like Brest in France, or Portsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is possible that the articles might have been applied to civil consumption. As it is impossible to ascertain positively the final use of an article ancipitis usus, it is not an injurious rule which deduces the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful. (x)

These doctrines of the English prize law were essentially the same with that adopted by the American Congress in 1775, for they declared that all vessels, to whomsoever belonging, carrying provisions or other necessaries to the British army or navy within the colonies, should be liable to seizure and confiscation. (a) They were likewise fully adopted by the Supreme Court of the United States, when we came to know and feel the value of belligerent rights, by becoming a party to a maritime war. In the case of the Commercen, (b) a neutral vessel, captured by one of our cruisers in the act of carrying provisions for the use of the British armies in Spain, the court held, that provisions, being {141} neutral property, but the growth of the enemy's country, and destined for the supply of the enemy's military or naval force, were contraband. The court observed, that, by the modern law of nations, provisions were not generally contraband, but they might become so on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country, they were not contraband; but it was otherwise if destined for the army or navy of the enemy, or for his ports of military or naval equipment. And if the provisions were the growth of the enemy's country, and destined for the enemy's use, they were to be treated as contraband, and liable to forfeiture, even though the

(a) Journals of the Confederation Congress, i. 241. (b) 1 Wheaton, 382.

(a) See 3 Phillimore's Int. Law, (4th ed.) 422, 441; 78 L. T. 403. A submarine cable, and also a ship employed in laying it by a belligerent nation, may, it seems, be of a commercial or belligerent

character according to the circumstances under which they are chiefly used. The International, L. R. 8 Adm. & Ecc. 321, 327; see The Gauntlet, id. 381; L. R. 4 P. C. 184.

army or navy were in a neutral port, for it would be a direct interposition in the war.

This case followed the decisions of Sir William Scott, and carried the doctrine of contraband, as applied to provisions, to as great an extent. It held the voyage of the Swedish neutral so illegal as to deserve the infliction of the penalty of loss of freight.

It is the usus bellici which determined an article to be contraband; and as articles come into use as implements of war which were before innocent, there is truth in the remark, that as the means of war vary and shift from time to time, the law of nations shifts with them; not, indeed, by the change of principles, but by a change in the application of them to new cases, and in order to meet the varying inventions of war. When goods are once clearly shown to be contraband, confiscation to the captor is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of pre-emption on reasonable terms. (a) But, generally, to stop contraband goods, would, {142} as Vattel observes, (a) prove an ineffectual relief, especially at sea. The penalty of confiscation is applied, in order that the fear of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, to seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. (b) It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the

(a) Case of the Haabet, 2 C. Rob. 182 (b) Vattel, b. 3, c. 7, sec. 113.

(a) B. 3, c. 7, sec. 113.

belligerent powers, contraband articles subject to the right of seizure, in transitu. (c) This right has since been explicitly declared by the judicial authorities of this country. (d) The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.¹

Contraband articles are said to be of an infectious nature, and they contaminate the whole cargo belonging to the {143} 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 by the 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 in his agent, the penalty is car-

(c) M. Adet's Letter to Mr. Pickering, March 11, 1796; Mr. Pickering's Letters to M. Adet, January 20 and May 25, 1796; Circular Letter of the Secretary of the Navy to the Collectors, August 4, 1793.

(d) Richardson v. Maine Ins. Company, 6 Mass. 113; The Santissima Trinidad, 7 Wheaton, 283.

¹ This passage is cited and approved by Lord Westbury in Ex parte Chavasse, re Grazebrook, 11 Jur. N. S. 400, 34 L. J. N. S. By. 17; Historicus, Int. Law, 119, 129 (on neutral trade in contraband of war); Hobbs v. Henning, 17 C. B. N. S. 791, 810; 11 Op. Att.-Gen. 408, 410; ib. 451; The Helen, L. R. 1 Ad. & Ec. 1. The above cases show that similar principles apply to blockade-running. See also an article in 5 Am. Law Rev. 247.

The next passage, as to the infectious nature of contraband, is sustained by

The Peterhoff, 5 Wall. 28, 59; S. C. Blatchf. Pr. 463; The Springbok, 5 Wall. 1, 26; Blatchf. Pr. 434. Vessels were condemned in the cases of The Bermuda, 3 Wall. 514, 555; Hart, ib. 559; S. C. Blatchf. Pr. 387. See also Hobbs v. Henning, 17 C. B. N. S. 791, 814.

Other treaties besides those mentioned in note (b) of the next page are to be found 11 U. S. St. at L. 642 (with King of Two Sicilies); 15 id. 473, 480, 481 (with Dominican Republic); 10 id. 880, 881; ib. 937, &c.

ried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and the innocent parts of the cargo. (a) 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. (b) ¹

2. Blockades. — A neutral may also forfeit the immunities of his national 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. Bynkershoek (c) says, {144} it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius (a) considers the carrying of supplies to a besieged town, or a blockaded port, as an offence exceedingly aggravated and injurious. They both agree that a neutral may be dealt with severely; and Vattel says he may be treated as an enemy. (b) 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 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

(a) Bynk. Q. J. Pub. b. 1, c. 12 and 14; Heinec. de Nav. ob Vect. Merc. Vetit. Com. c. 2, sec. 6; Opera, ii. 348; The Staadt Embden, 1 C. Rob. 26; The Jonge Tobias, 1 C. Rob. 329; The Franklin, 3 C. Rob. 217; The Neutralitet, 3 C. Rob. 295; The Edward, 4 C. Rob. 68; The Banger, 6 Rob. 125. ride infra, 151, note.

(b) In the treaty between the United States and the Republic of Colombia, and in that with the republics of Chili, of Venezuela, and of the Peru-Bolivian Confederation and Ecuador, 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. In these treaties, the articles of contraband are enumerated, and they consist of munitions of war, and other things made up in a military form and for a military use, and cavalry horses, with their furniture, and all materials, manufactured, prepared, and formed expressly for the purposes of war, either by sea or land. All other meehandises and things are declared to be subjects of lawful commerce. (c) Q. J. Pub. b. 1, c. 4, sec. 11. [See Hall, Int. Law, pt. 4, c. 8.] (a) B. 3, c. 1, see. 5. (b) B. 3, c. 7, sec. 117.

¹ Ante, 142, n. 1. On the next passage on the law of blockade, International in the text, compare Historicus's letters Law, 87, 97.

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. (x) All decrees and orders, declaring extensive coasts and whole countries in a state of blockade, without the presence

(c) The Betsey, 1 C. Rob. 93; 1 Chitty on Commercial Law, 450; Letter from Mr. Clay, the Secretary of State, to Mr. Tudor, dated October 23, 1827.

(x) The maritime blockage of a fort requires the actual presence of a force sufficiently strong to prevent, or render dangerous, attempts to pass it. 2 Halleck's Int. Law, c. 25, p. 186. So when a port is blockaded, it is the duty of the blockaders to maintain a force sufficient of itself to enforce the blockade, and a vessel which innocently enters and departs is not liable to seizure later in its voyage. The Nancy, 1 Acton, 57. War vessels which have been commissioned by, and thrown off their allegiance to, their country, the government of which is still in possession on the land, as happened recently in the Republic of Chili, are, it seems, simply pirates, if they have not been commissioned afresh by any State or recognized belligerent, and foreign powers cannot allow to a blockade by such vessels any validity in International Law. See 16 Law Mag. & Rev. (4th Series) 164, 174; infra, p. 184, n. Unrecognized insurgents are clearly pirates so far as they commit depredations upon the citizens or ships of neutral states. The Magellan Pirates, 1 Spinks, 81; The Huascar, 3 Wharton's Digest, 474; Snow's Int. Law, 205-208. At Rio Janeiro, in 1894, the United States, with the assent of the French and Austrian naval commanders, refused to recognize belligerent rights over neutral commerce in favor of the purely naval insurgents, and its war vessels in-

tervened, by a show of force, to prevent the insurgent ships from firing on neutral vessels seeking to enter the port. See 19 Law Mag. & Rev. (4th Series), 32; 10 Law Quarterly Rev. 256.

Forfeitures for violating the government's interdict of commercial intercourse may be enforced after hostilities have ceased. Duvall v. United States, 154 U. S. 548; see United States v. Hallock, id. 537.

Besides the right of blockade in time of war, a blockade in time of peace, known as the "pacific blockade," first used as a mode of international coercion in 1827, has been since often employed by the European powers. It is not, however, recognized as a legitimate form of constraint according to the rules of International Law. The Ambrose Light, 25 Fed. Rep. 408, 446. In every recorded case, while detrimental to neutrals, such proceedings have amounted to no more than an armed coercion of a feeble State into some course demanded by a much stronger one, and the object has been, either to obtain satisfaction by means falling short of war for some damage caused by the other State, or to influence its conduct by direct intervention in its affairs. See Mr. J. M. Graver's article in 14 Law Mag. & Rev. (4th Series), 127; 18 id. 313; Cobbett's Int. Law Cases (2d ed.), 150.

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 (d) is oppidum obsessum vel portus clausus, and the investing power must be able to apply its force to every point of the {145} 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. (a) 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 has 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)¹

(d) B. 3, c. 1, sec. 5.

(a) The Mercurius, 1 C. Rob. 80; The Betsey, 1 C. Rob. 93; The Stert, 4 C. Rob. 65; Letter of the Secretary of the Navy to Commodore Preble, February 4, 1804.

(b) Mr. King's Letter to Lord Grenville, May 23, 1799; Mr. Marshall's Letter to Mr. King, Sept. 20, 1799; Mr. Madison's Letter to Mr. Pinckney, October 25, 1801; Letter of the Secretary of the Navy to Commodore Preble, February 4, 1804; Mr. Pinckney's Letter to Lord Wellesley, January 14, 1811. In the convention between Great Britain and Russia, on the 17th of June, 1801, a blockaded port was declared to be, "that where there is, by the disposition of the power which attacks it with ships stationary, or sufficiently near, an evident danger in entering." The definition in the treaty of commerce between the United States and Chili, in May, 1832, art. 15, and the Peru-Bolivian Confederation, in May, 1838, art. 14, of a besieged or blockaded place is, "one actually attacked by a belligerent force, capable of preventing the entry of the neutral."

¹ Post, 147, n. 1; The Peterhoff, 5 Wall. 28: S. C. Blatchf. Pr. 463; The Sarah Starr, Blatchf. Pr. 69; The Douro, ib. 362; Historicus, Int. Law, 89. A public blockade once established and duly notified, must be presumed to continue until notice of discontinuance, in the absence of positive proof of discontinuance by other evidence; and it is not enough that the master and mate of the captured

vessel swear that they saw no blockading ships off the port. The Baigorry, 2 Wall. 474; The Circassian, ib. 135. The occupation of New Orleans by the Northern forces in 1862 did not immediately put an end to the blockade of the port. The Circassian, 2 Wall. 135; The Baigorry, ib. 474. See The Venice, ib. 258; The Josephine, 3 Wall. 83.

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. (c) The American government seemed disposed to admit the continuance of the blockade in such a case; (d) and the language of the judicial authorities in New York has been in favor of the solidity and justness of the English doctrine of blockade on this {146} point. (a) 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. (b)

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

(c) The Frederick Molke, 1 C. Rob. 66; The Columbia, 1 C. Rob. 154; The Juffrow Maria Schroeder, 3 C. Rob. 155; The Hoffnung, 6 C. Rob. 116, 117.

(d) Mr. Marshall's Letter to Mr. King, September 20, 1799. (a) Radcliff, J., 2 Johns. Cas. 187; Radcliff v. U. Ins. Co., 7 Johns. 38. (b) Williams v. Smith, 2 Caines, 1; Letter of the Secretary of State to Mr. King, September 20, 1799; The Hoffnung, 6 C. Rob. 112.

intention. (c) 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 {147} commencement of the blockade. (a)¹ 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. (b)

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 a duty of the neutral government to communicate the notice to their people. (c)² 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 a 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,

(c) Bynk. Q. J. Pub. b. 1, c. 4; The Frederick Molke, 1 C. Rob. 86; The Neptunus, 1 C. Rob. 170; The Vrouw Judith, 1 C. Rob. 150.

(a) The Betsey, 1 C. Rob. 93; The Vrouw Judith, 1 C. Rob. 150; The Comet, Edw. Adm. 32; Olivera v. Union Ins. Co., 3 Wheaton, 183.

(b) The Ocean, 3 C. Rob. 297; The Stert, ib. 299, note; Letter of the Secretary of State to Mr. King, September 20, 1799.

¹ The Hiawatha, Blatchf. Pr. 1; S. C. Prize Cases, 2 Black, 635; The Gerasimo, 11 Moore, P. C. 88, 116. During the late war the mouth of the Rio Grande, between Texas and the neutral territory

of Mexico, was not blockaded, and, it seems, it could not have been. The Peterhoff, 5 Wall. 28; S. C. Blatchf. Pr. 463. ² The Hiawatha, Blatchf. Pr. 1. See the treaties referred to, ante, 142, n. 1.

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 {148} blockaded place, on a doubtful and provisional destination. (a) 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.¹ In the case of the Adelaide, (b) 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 neighboring 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. (c)²

A neutral cannot be permitted to place himself in the vicinity of a blockaded port, if his situation be so near that he may, with impunity, break the blockade whenever {149} he pleases, and slip in without obstruction. If that were to

(a) The Columbia, 1 C. Rob. 154; The Neptunus, 2 C. Rob. 119.

(b) 2 C. Rob. III, in notis. (c) The Spes and Irene, 5 C. Rob. 76.

¹ Prize Cases, 2 Black, 635, 677.

Notice of a blockade must not be more extensive than the blockade itself. The Franciska, 10 Moore, P. C. 37.

² The Josephine, 3 Wall. 83; The Cheshire, ib. 231; The Admiral, ib. 603; The Empress, Blatchf. Pr. 175, 659; The Union, Spinks, Prize C. 164.

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. (a)¹

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. (b)

(a) The Neutralitet, 6 C. Rob. 30; The Charlotte Christine, 6 C. Rob. 101; The Gute Erwartung, 6 C. Rob. 182; Bynk. Q. J. Pub. b. 1, c. 11; The Arthur, Edw. Adm. 202; Radcliff v. United Ins. Co., 7 Johns. 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, 1804; Letter of the Secretary of the Navy to Commodore Preble, February 4, 1804; Treaty between the United States and the Republic of Chili, May, 1832, art. 17, and between the United States and Venezuela, May, 1836, art. 20.

¹ The Cornelius, 3 Wall. 214. See The Sea Witch, 6 Wall. 242. Nothing less than uncontrollable necessity will justify a neutral in attempting to enter a blockaded port. The Diana, 7 Wall. 354.

Questions of evidence of an intent to violate a blockade are very numerous in Blatchford's Prize Cases. See also 2 Sprague, 2, 3, and 5 Wallace.

{150} It has been a question in the courts of 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. (a). But in Yeaton v. Fry (b) 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 Cura9oa, 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, (c) the act of sailing with an intent to break a blockade is a sufficient breach to authorize confiscation.¹The 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 Bynkershoek contends for the reasonableness of the order. (d) 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 voyages, {151} 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. (a) The ordinance of Congress, of 1781, seems to have conceded this point to the

(a) Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185; Vos & Graves v. U. Ins. Co., 2 Johns. Cas. 180, 469.

(b) 5 Cranch, 335. (c) 9 Cranch, 440, 446. (d) Q. J. Pub. b. 1, c. 11; 3 C. Rob. 326, in notis.

(a) 5 C. Rob. 76; 6 Cranch, 29; Sperry v. The Delaware Ins. Co., 2 Wash. 243; Naylor v. Taylor, 9 Barn, and Cress. 718.

¹ The Circassian, 2 Wall. 135; The Admiral, 3 Wall. 603; ante, 85, n. 1.

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. (b)

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. (c)¹ The old doctrine was much more severe, and often inflicted, not merely a forfeiture of the property taken, but imprisonment, and other personal punishment; (d) 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;² 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. (e) The penalty for a {152} 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. (a)

There are other acts of illegal assistance afforded to a belliger-

(b) Journals of Congress, vii. 186. The mere act of sailing to a blockaded port is not an offence, if there was no premeditated design of breaking the blockade, though it should be found to continue when the vessel arrives off the port. See the opinion of Sir Wm. Scott, in the case of the Shepherdess, 5 C. Rob. 204; and of Lord Tenterden, in Naylor v. Taylor, 9 Barn. & Cress. 718; and of Tindal, Ch. J., in Medeiros v. Hill, 8 Bing. 231.

(c) The Mercurius, 1 C. Rob. 80; The Columbia, 1 C. Rob. 154; The Neptunus, 3 C. Rob. 173; The Alexander, 4 C. Rob. 93; The Exchange, Edw. Adm. 39.

(d) Bynk. Q. J. Pub. b. 1, c. 11.

(e) The Welvaart Van Pillaw, 2 C. Rob. 128; The Juffrow Maria Schroeder, 3 C. 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 contaminates the return cargo, and subjects it to condemnation, as being one entire transaction. The Rosalie and Betty, 2 C. Rob. 343; The Nancy, 3 C. Rob. 122; Carrington v. The Merchants' Ins. Co., 8 Peters, 495. (a) The Lisette, 6 C. Rob. 387.

¹ The Panaghia Rhomba, 12 Moore, P. C. 168; The William Bagaley, 5 Wall. 377, 411. See also The United States

v. Guillem, 11 How. 47, 62; The Sally Magee, 3 Wall. 451.

² The Wren, 6 Wall. 582.

ent 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)

A distinction has been made between carrying despatches of the enemy between different parts of his dominions and carrying despatches of an ambassador from a neutral {153} country to his own sovereign. The effect of the former despatches is presumed to be hostile; but the neutral country has a right to preserve its relations with the enemy, and it does not necessarily follow that the communications are of a hostile nature.¹ Ambas-

(b) The Atalanta, 6 C. Rob. 440.

¹ The Trent Affair. (x) — In November, 1861, Captain Wilkes, of the United States war-steamer San Jacinto, after firing a round shot and a shell, boarded the English mail-packet Trent, in Old Bahama Channel, on its passage from Havana to Southampton, and by force carried off Messrs. Mason and Slidell, two rebel ministers from the Confederate States, so

called, who had been taken on board as passengers bound for England. Mason and Slidell were conveyed to the United States, and committed to prison; but after a formal requisition by Great Britain, declaring the capture to be illegal, they were surrendered by the federal government. Mr. Seward took the ground that the Southern emissaries and their despatches

(x) See Francis Wharton's comments on this affair in 16 Cent. L. J. 384, 386. See 29 Am. L. Rev. 274.

sadors resident in a neutral country are favorite objects of the protection of the law of nations, and their object is to preserve the relations of amity between the governments; and the pre-

were contraband of war, and that the Trent might properly have been carried into port and condemned as prize. If such a condemnation had taken place, it was intimated that, as there was no direct process in prize courts against contraband persons, the adjudication against the ship would have carried the right to detain the persons for carrying whom she was condemned, as an indirect consequence. But as the ship was released by Captain Wilkes without necessity, and partly out of consideration for her innocent passengers, the capture was waived while incomplete, and the prisoners must therefore be released also. The principle was thought to be similar to the denial of the right of belligerents to search neutral vessels which the American government had always made. Mr. Seward to Lord Lyons, Dec. 26, 1861.

The British government did not acquiesce in these propositions, but denied that the conveyance of public agents of this character from Havana to St. Thomas on their way to Great Britain and France, and of their credentials or despatches (if any) on board the Trent, was or could be a violation of the duties of neutrality on the part of that vessel; and both for that reason, and also because the destination of these persons and despatches was bona fide neutral, it was thought certain that they were not contraband. The government further declared that they would not acquiesce in the capture of any British merchant ship in circumstances similar to those of the Trent, even though it was brought before a prize court. Earl Russell to Lord Lyons, Jan. 23, 1862. Mr. Lawrence thinks that the same principle of the jus belli which subjects a neutral to confiscation for carrying military officers applies to the carriage of important persons in the civil service.

The British claim to take their sailors out of American ships stood on wholly different grounds. Lawrence's Wheaton, App. 3, pp. 955, 956, and n. 72, pp. 217, 218.

Mr. Dana thinks that this case can be considered as having settled but one principle, and that one no longer disputed: that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons. Wheat. Dana's note 228.

Professor Mountague Bernard, after stating the case and giving the despatches, comes to the conclusion that a neutral ship conveying persons in the enemy's employment, whether military or civil, is not liable to condemnation unless she is serving the enemy as a transport, and so as to assist, substantially, though not perhaps directly, his military operations. If the enemy has not the actual control and disposal of the ship by any contract, he thinks that it must be proved that the service performed was in its nature such as is rendered by a transport, and that there should be evidence of intention or knowledge from which intention may be reasonably inferred, on the part of the owner or his agent, the master. He thinks the rules of contraband inapplicable, and that the fact that the voyage is to end at a neutral port, though not conclusive, is a strong argument against condemnation, especially if coupled with proof that the ship was pursuing her ordinary employment. Neutrality of Great Britain during the Am. Civil War, c. 9, pp. 224, 225.

For further discussion of the subject, see Mr. Sumner's speech in the United States Senate, Jan. 9, 1862; M. Thouvenel's despatch to M. Mercier, of Dec. 3, 1861; Ann. Reg. 1861, p. 252, and Pub. Doc. 288; pamphlets by Professor

sumption is, that the neutral state preserves its integrity, and is not concerned in any hostile design. (a)

3. Right of Search. — In order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty. (b)² (x) All writers

(a) The Caroline, 6 C. Rob. 461; Martens, Summary, b. 7, c. 13.

(b) Le Louis, 2 Dods. 248; The Antelope, 10 Wheaton, 119. Yet the British Parliament, by statute, in August, 1839, in order more effectually to suppress the slave trade, and especially as against Portugal, a power that had grossly violated her treaty with England on that subject, authorized the power of visitation and search in time of peace. The British government disclaim the right of search in time of peace, but they claim at all times the right of visit, in order to know whether a vessel, pretending, for instance, to be American, and hoisting the American flag, be really what she seems to be. Lord Aberdeen's Despatch of December, 1841, to the American Minister, Mr. Stevenson. But the government of the United States do not admit the distinction between the right of visitation and the right of search. They consider the difference to be one rather of definition than principle, and that it is not known to the law of nations. They will not admit the exercise of the claim of visit to be a right; while the British government concedes that if, in the exercise, of the right of visit to ascertain the genuineness of the flag which a suspected vessel bears, any injury ensues, prompt reparation would be made. The mutual right of visitation and search in reference to the slave trade has ever been conceded by the European governments of Austria, France, Great Britain, Prussia, and Russia, who were parties to the Quintuple Treaty at London, of December, 1841. See Mr. Webster's Despatch, as American Secretary of State, to Mr. Everett, the American Minister at London, of March 28, 1843. This treaty was subsequently ratified by all the contracting parties except France, who remained bound only to a restrictive right of search under the conventions of 1831 and 1833. The inter-visitation of ships at sea is a branch of the law of self-defence, and is, in point of fact, practised by the public vessels of all nations, including those of the United States, when the piratical character of a vessel is suspected. The right of visit is conceded for the sole purpose of ascertaining the

Parker (Cambridge, 1862), M. Haute-feuille, and Professor Mountague Bernard (Oxford, 1862); Woolsey, Int. Law, § 184; Historicus, Int. Law, 185; Lord Mackenzie, Roman Law, 60.

² The British government have abandoned the claim of a right of visitation in

(x) Visitation and search are no longer permissible in time of peace, and if vessels of the United States are in time of peace

time of peace for the purpose of verifying the flag, except so far as allowed by treaty. Historicus, Int. Law, 173, where the whole subject is discussed. Hansard, cli. 1307, 2082; Ann. Reg. 1858, p. 188. Treaty with Great Britain of May 25, 1862, 12 U. S. St. at L. 279.

searched by foreign cruisers, reparation will be required. 3 Wharton's Digest, § 327; see 16 Cent. L. J. 385.

upon the law of nations, and the highest authorities, acknowledge the right in time of war as resting on sound principles of public jurisprudence, and upon the institutes and practice of all great maritime powers. (c) And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property, or troops, or despatches, she is liable to be taken and brought in for adjudication, before a prize court.

Neutral nations have frequently been disposed to question and resist the exercise of this right. This was particularly the case with the Baltic confederacy during the American war, and with the convention of the Baltic powers, in 1801. The right of search was denied, and the flag of the state was declared to be a substitute for all documentary and other proof, and to exclude all right of search. Those powers armed for the purpose of defending their neutral {154} pretensions; and England did not hesitate to consider it as an attempt to introduce, by force, a new code of maritime law inconsistent with her belligerent rights, and hostile to her interests, and one which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the right of search has, since that time, been considered incontrovertible. (a)

The whole doctrine was ably discussed in the English High Court of Admiralty, in the case of the Maria, (b) and it was adjudged that the right was incontestable, and that a neutral sovereign could not, by the interposition of force, vary that right. Two powers may agree among themselves that the presence of one of their armed ships, along with their merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships inconsistent with amity or neu-

real national character of the vessel sailing under suspicious circumstances, and is wholly distinct from the right of search. It has been termed, by the Supreme Court of the United States, the right of approach for that purpose (The Marianna Flora, 11 Wheaton, 1, 43); and it is considered to be well warranted by the principles of public law and the usages of nations. Bynk. Q. J. Pub. lib. 1, c. 114, S. P.

(c) Vattel, b. 3, c. 7, sec. 114; Ord. de la Marine, of 1681, art. 12; Hübner, de la Saisie des Bâtimens Neutres; The Maria, 1 C. Rob. 340; Le Louis, 2 Dods. 245; The Marianna Flora, 11 Wheaton, 42.

(a) In the convention between England and Russia, on the 17th of June, 1801, Russia admitted the belligerent right of search, even of merchant vessels navigating under convoy of a ship of war, provided it was exercised by a ship of war belonging to government.

(b) 1 C. Rob. 340.

trality. (c) But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled practice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser, grossly abusing his commission; but, except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or be carried into a proximate port for judicial inquiry. Upon {155} these principles, a fleet of Swedish merchant ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation. (a)

The doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized, in its fullest extent, by the courts of justice in this country. (b) The very act of sailing under the protection of a

(c) In the treaty of commerce between the United States and the Republic of Chili, in 1832, it was agreed that the right of visitation and search should not apply to vessels sailing under convoy. So, also, in the convention between the United States and the Peru-Bolivian Confederacy, of 1838, art. 19.

(a) The Maria, 1 C. Rob. 340; The Elsabe, 4 C. Rob. 408.

(b) The Nereide, 9 Cranch, 427, 438, 443, 445, 453; The Marianna Flora, 11 Wheaton, 42. The government of the United States admits the right of visitation and search by belligerent government vessels of their private merchant vessels, for enemy's property, articles contraband of war, or men in the land or naval service of the enemy. But it does not understand the law of nations to authorize, and does not admit, the right of search for subjects or seamen. England, on the other hand, asserts the right to look for her subjects on the high seas, into whatever service they might wander, and will not renounce it. The objections to the British claim, on the ground of public

belligerent or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish government asserted the same principle in its correspondence with the government of the United States, and in the royal instructions of the 10th of March, 1810; (c) and none of the powers of Europe have called in question the justice of the doctrine. (d)¹ Confiscation is applied, by way of penalty for resistance of search, to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.

This right of search is confined to private merchant vessels, and does not apply to public ships of war. Their immunity from the exercise of any civil or criminal jurisdiction but that of the sovereign power to which they belong is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or {156} admitted in any treaty; and every act to the contrary has been promptly met and condemned. (a)

law and policy, were stated with great force and clearness, in 1818, by the American Minister in London to Lord Castlereagh. Rush's Memoranda, 181-193, 279-283. The claim of Great Britain to the right of search, on the high seas, of neutral vessels, for deserters and other persons liable to military and naval service, has been a question of animated discussion between that government and the United States. It was one principal cause of the war of 1812, and remains unsettled to this day. In the discussions in 1842, between Lord Ashburton and Mr. Webster, relative to the boundary line of the State of Maine, the American Minister incidentally discussed the subject, and intimated that the rule hereafter to be insisted on would be, that every regularly documented American merchant vessel was evidence that the seamen on board were American, and would find protection under the American flag.

(d) The Austrian ordinance of neutrality of August 7, 1803, enjoined it upon all their vessels to submit to visitation on the high seas, and not to make any difficulty as to the production of the documentary proofs of property.

(a) Thurlow's State Papers, ii. 503; Casaregis's Discourses, 136; Mr. Canning's Letter to Mr. Monroe, August 3, 1807; Edinburgh Review for October, 1807, art. 1.

¹ Historians, Int. Law, 173, 181; Wheat. Dana's note 242. The captain of a merchant steamer is not privileged from search by the fact that he has a government mail on board. The Peterhoff, 5 Wall. 28; S. C. Blatchf. Pr. 463. [As to the right to search the mail itself the law is not settled, but the right, if it exists,

is not likely to be exercised except under suspicious circumstances. Hall, Int. Law, pt. 4, c. 6, § 252. — B.]

As to public ships, see 7 Op. Att.-Gen. 122, ante, 124, n. 1.

See the treaties referred to, ante, 142, n. 1, for regulations of visitation and search.

The exercise of the right of visitation and search must be conducted with due care and regard to the rights and safety of the

In the case of Prins Frederik, 2 Dods. 451, the question was raised, and learnedly discussed, whether a public armed ship, belonging to the King of the Netherlands, was liable to civil or criminal process in a British port. She was brought in by assistance, in distress, and salvage was claimed, and the ship was arrested upon that claim, and a plea to the jurisdiction interposed. The question went off by arrangement, and was not decided, though the immunity of such vessels from all private claims was forcibly urged, on grounds of general policy and the usage of nations. And in this country, in the case of The Schooner Exchange v. M'Faddon, 7 Cranch, 116, it was decided, after great discussion, that a public vessel of war of a foreign sovereign, at peace with the United States, coming into their ports, and demeaning herself in a friendly manner, was exempt from the jurisdiction of the country. L'Invincible, 1 Wheaton, 238, 252, S. P. In that interesting case, The Schooner Exchange, it was shown that the exemption of a public ship in port from the local jurisdiction was not founded on the absolute right of another sovereign to such an exemption, but upon principles of public comity and convenience, and arose from the presumed consent of nations: that consent might be withdrawn, upon notice, without just offence; and if a foreign ship, after such notice, comes into the port, she becomes amenable to the local laws in the same manner as other vessels; and though a public ship and her armament might be excepted, the prize property which she brings into port is subject to the local jurisdiction, for the purpose of examination and inquiry, and, in a proper case, for restitution. It has been asserted, on the part of the executive authority of the United States, that a writ of habeas corpus may be lawfully awarded to bring up a subject illegally detained on board a foreign ship of war in our waters. Opinion of the Attorney-General of the United States, June 24, 1794. (Opinions of the Attorneys-General, i. 47.) So, also, it was the official opinion of the Attorney-General of the United States, in 1799, that it was lawful to serve civil or criminal process upon a person on board a foreign ship of war lying within a harbor of the United States. Ib. i. 55-57. These opinions do not apply, of course, to any process against the ship itself. Mr. Webster, the American Secretary of State, in his diplomatic letter to Lord Ashburton, the British Minister at Washington, of the date of August 1, 1842, contended, that if a vessel be driven by stress of weather or other necessity, - or carried by unlawful force into a British port, even if it be a prohibited or blockaded port, that necessity exempted the vessel from all penalty and all hazard; that a vessel on the high seas is regarded as part of the territory of the nation to which she belongs, and subject to its exclusive jurisdiction; and if it be forced by such necessity into a foreign port, her immunities continue by the comity and practice of nations; that the jurisdiction continues, though the vessel be at anchor in the foreign port; so that if a murder be committed on board a vessel in a foreign port by one of the crew, or a passenger, on another of the crew, or a passenger, the offence is cognizable by the courts of the nation to which the vessel belongs; that the vessel, while water-borne in foreign places, was, for the general purpose of governing and regulating the rights, duties, and obligations of those on board, considered as part of the territory to which she belonged, and that local laws did not affect existing relations between persons on board. He further stated that, by the comity and practice of nations, merchant vessels going voluntarily into a foreign port for trade, retain on board, for their protection and government, the jurisdiction and laws of their own country. These immunities were presumed to exist as a part of civilization, and to be allowed until expressly retracted. This presumption is deemed

vessels. (b) If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent

to be part of the voluntary and adopted law of nations. The case of a vessel forced by necessity into a foreign port, placed the claim for exemption from interference on higher principles and stronger courtesy. If the vessel has slaves on board, the foreign government has no right to enter on board and interfere with that relation. It was admitted, however, that the exemption from the local jurisdiction could not be claimed for unlawful acts done, and contracts made, on board the vessel so placed. Vide supra, 109, 124, n., and infra, 362. The act of Congress giving jurisdiction in cases of felony committed in a foreign port, as in the case stated by Mr. Webster, assumes, and impliedly admits, a concurrent jurisdiction in the courts of the territory where the vessel was at the time. Lord Ashburton, in his reply of the 6th of August, declined the discussion of the question of immunity in harbor, on general principles, and said that Mr. Webster had advanced some propositions which rather surprised and startled him, though he did not pretend to judge of them. He admitted, that in the case of American vessels, driven by necessity into a British port, there ought not to be any officious interference with them, nor any further inquisition into the state of persons or things on board than might be indispensable to enforce the observance of the municipal laws of the country, and the proper regulation of its harbors and waters. The principles of national law, stated in the diplomatic correspondence above referred to, were judicially recognized by the Supreme Court of Louisiana, in the case of McCargo v. New Orleans Ins. Co., 10 Rob. La. 202, 316. It was there declared to be a true exposition of the law of nations, that a vessel on the high seas, in time of peace, engaged in a lawful voyage, was under the exclusive jurisdiction of the state to which her flag belongs; (x) and that if forced by necessity into a port of a friendly power, she loses

(b) The Anna Maria, 2 Wheaton, 327. The right of visitation and search is sometimes laid under special restrictions, by convention between maritime states. See, for instance, art. 17 of the convention of navigation and commerce between the United States and the Peru-Bolivian Confederation, May, 1838.

(x) In The Annapolis, The Johanna Stoll, Lush. 295, 306, Dr. Lushington said: "The Parliament of Great Britain has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction, though, if Parliament thought fit so to do, this Court, in its instance jurisdiction at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of international law, and the construction accordingly." See United States v. Diekelman, 92 U. S. 520.

A packet owned by a foreign sovereign, and commanded by officers commissioned

by him, if she conveys mails and carries on commerce, is exempt from the admiralty jurisdiction in England. The Parlement Beige, 5 P. D. 197; 4 P. D. 129; see The Constitution, 4 P. D. 39. But a foreign sovereign, whose public vessels cannot be arrested, may, if he sues as plaintiff to recover damages for a collision, be required to give security for costs to a defendant who brings a counter-claim. The Newbattle, 10 P. D. 33; Mighell v. Sultan of Johore, [1894] 1 Q. B. 149.

A merchant vessel of a neutral nation, which is acting as a transport of one belligerent in carrying munitions of war and troops, is liable to condemnation as a prize, but cannot, it seems, if readily capable of capture, be properly fired upon

cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examina-

none of the rights appertaining to her on the high seas, but herself and cargo, and the persons on board, with their property, and all the rights incident to their personal relations, as established by the laws of the state to which they belong, were placed under the protection which the laws of nations extend to the unfortunate under such circumstances. Although the jurisdiction of the nation over the vessel belonging to it be not wholly exclusive, and though, for any unlawful acts committed, while in such a situation, by the master, crew, or owners, she or they may be responsible to the laws of the place, yet the local laws do not supersede the laws of the country to which the vessel belongs, so far as relates to the rights, duties, and obligations of those on board; and that whatever might be the state of the foreign law in relation to slavery, it did not operate on board the vessel so forced by necessity into the foreign port, and before a voluntary landing of the slaves on board, to dissolve the relation of master and slave. Two cases, in which this interesting subject was discussed, are cited from Ortolan, Règles Internationales de la Mer, i. in Wheaton's Elements, 3d ed. 152-154, in which it was decided by the Council of State, in 1806, in the French courts, that foreign private vessels in French ports, for the purpose of trade, were exempted from the local jurisdiction, as to acts of mere international discipline of the vessel, and even as to crimes and offences committed by a person forming a part of its officers and crew, against another person belonging to the same, when the peace of the port is not disturbed. But the local jurisdiction is properly asserted as to crimes committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other, if the peace of the port be thereby disturbed; and the jurisdiction, also, is exercised as to civil contracts made to persons not belonging to the vessel.(y) These were the cases of the Newton at Antwerp, and of the Sally, at

and sunk by a war-vessel of the other belligerent, as was recently done in the case of the British transport, Kow Shing, destroyed by the Japanese man of war Naniwa. 19 Law Mag. & Rev. (4th Series), 315.

(y) When a vessel is in a foreign port, "disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction." Waite, C. J., in Wildenhus's Case, 120 U. S. 1, 18; 28 Fed. Rep. 924; see United States v. Diekelman, 92 U. S. 520; The Newton, and The Sally, 1 Ortolan, Dip. de la Mer, 450; The Tempest, id. 455; L'Anémone,

3 Journal de Droit. Int. Privé, 413. The law of the port is binding on foreign merchant vessels in all matters concerning the peace of the port. Pelletier v. Hayti, 35 Albany L. J. 144. Mr. A. P. Morse, in an article in 42 Albany L. J. 345, 353, concludes that: — (1) By modem international law, the law of the flag in respect to merchant vessels is exclusive of the law of the port; (2) There are circumstances and conditions under which the law of the flag and the law of the port may exercise concurrent jurisdiction; (3) There are cases in which the law of the port is exclusive of the law of the flag.

The exemption of a public vessel from the local sovereignty in foreign waters is not an absolute but a qualified right which should be recognized and respected in accordance with the reciprocal rights

tion. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful; but if he proceeds to capture the vessels [vessel] as prize, and sends her in for adjudication, and there be no probable cause, he is responsible. (z) It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. (c) If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages. (d)¹

{157} A rescue effected by the crew after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation; for it is delivery by force from force. (a) And where the penalty attaches at all, it attaches as completely to

Marseilles. These cases show a liberal relaxation of the strict rights of the local jurisdiction, and so they are regarded by Mr. Wheaton. Another important principle of international jurisprudence was declared by the French Court of Cassation, in 1832, in the case of the Carlo Alberto (Sirey, Recueil Général de Jurisprudence, xxxii. 578, cited from Wheaton's Elements, 3d ed. 154), viz. that by the law of nations, a foreign vessel, allied or neutral, is considered as part of the territory of the nation to which it belongs, and entitled to the privilege of the inviolability of the territory; but that privilege ceases to protect her when having committed acts of hostility in the French territory inconsistent with its character of ally or neutral, and that even the pretext of putting into port in distress will not exclude the jurisdiction of the local tribunals of a charge of high treason against the persons found on board.

(a) The Despatch, 3 C. Rob. 278; Brown v. Union Ins. Co., 5 Day, 1.

¹ The Ostsee, 9 Moore, P. C. 150, Spinks, Pr. 174, 33 Eng. L. & Eq. 28; The Leucade, Spinks, Pr. 217; The Aline and Fanny, 10 Moore, P. C. 491, 500; The Maria, 11 Moore, P. C. 271, 287; The Thompson, 3 Wall. 155; La Manche, 2 Sprague, 207; The Jane Campbell, Blatchf. Pr. 101; The Dashing Wave, 5 Wall. 170. In the first of these cases

the Privy Council reversed Dr. Lushington's decision, and laid down more liberal principles as to allowing costs and damages to claimants of a vessel captured without probable cause, than had formerly prevailed in the English practice. See Katchenovsky's Prize Law, by Pratt, London, 157 et seq.

and duties of the sovereign of the State and the sovereign of the ship; and a distinction is to be drawn between acts which have no effect externally to the vessel and those done on her which have an external operation. See Mr. A. P. Morse's article in 50 Alb. L. J. 204.

(z) See supra, p. 153, note (x). This right, when lawful, must be exercised in a lawful manner; if resisted, the penalty is the confiscation of the property withheld from visitation and search. 2 Halleck's Int. Law (Baker's 3d ed.), 258, 259.

the cargo as to the ship; for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war. (b)

A neutral is bound not only to submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character. (c) The most material of these documents are the register, passport, or sea-letter, muster-roll, logbook, charter-party, invoice, and bill of lading. (x) The want of some of these papers is strong presumptive evidence against the ship's neutrality; yet the want of any one of them is not absolutely conclusive. (d) Si aliquid ex solemnibus deficiat, cum æquitas poscit subveniendum est. The concealment of papers material for the preservation of the neutral character justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labored under heavy doubts, and there was prima facie ground for condemnation independent of the concealment. (e) The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further {158} proof, and be sufficient to infer guilt; but it does not, in England, as it does by the maritime law of other countries, create an absolute presumption juris et de jure; and yet a case that escapes with such a brand upon it is saved so as by fire. (a) The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation of papers was not,

(b) The Catharina Elizabeth, 5 C. Rob. 232.

(d) Danish Instructions, 10th March, 1810. The register of a vessel is the only document which need be on board a vessel in time of universal peace, to prove national character. Catlett v. Pacific Ins. Co., 1 Paine, 594. By the convention of navigation and commerce between the United States and the Peru-Bolivian Confederation, May, 1838, art. 18, the vessels of each power are to be furnished in time of war with sea-letters or passports, describing the name, property, and burden of the ship, and name and residence of the commander. So they must also be provided with certificates, containing the particulars of the cargo, and the place whence the ship sailed, signed by the officers of the port.

(e) Livingston v. Maryland Ins. Co., 7 Cranch, 544. (a) The Hunter, 1 Dods. 480.

(x) Hall, Int. Law, Appen. III.

of itself, sufficient ground for condemnation, and that it was a circumstance open for explanation; for it may have arisen from accident, necessity, or superior force. (b) If the explanation be not prompt and frank, or be weak and futile; if the cause labors under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, — it is good cause for the denial of further proof; and the condemnation ensues from defects in the evidence, which the party is not permitted to supply. The observation of Lord Mansfield, in Bernardi v. Motteux, (c) was to the same effect. By the maritime law of all countries, he said, throwing papers overboard was considered as a strong presumption of enemy's property; but, in all his experience, he had never known a condemnation on that circumstance only.¹ (x)

(b) The Pizarro, 2 Wheaton, 227. (c) Doug. 581.

¹ The Johanna Emilie, Spinks, Prize C. 12; The Ella Warley, Blatchf. Pr. 288, 648; The Stephen Hart, ib. 387;

The Peterhoff, ib. 463; The Mersey, ib. 187; The Zavalla, ib. 173, and other cases in the same volume.

(x) An American vessel on the high seas, which has no passport or manifest, though thereby deprived of freedom from search under the treaty of amity and commerce of 1788 (8 U. S. Stat. at Large,

12, 26, arts. 25, 27) is still entitled to the protection of international law, and is not subject to condemnation. The Venus, 27 Ct. Cl. 116.