than that which gives rise to the law of blockade. * 144 Bynkershoek (a) says, it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius (b) 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.(c) 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 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. (d) 1 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 (e) is oppidum obsessum vel Portus clausus, and the investing power must be able to apply *145 its force to every point of the blockaded place, so as to render it dangerous to attempt to enter, and there is no (a) Q. J. Pub. b. 1, c. 4, sec. 11. (b) B. 3, c. 1, sec. 5. (c) B. 3, c. 7, sec. 117. (d) The Betsey, 1 Rob. Rep. 93. 1 Chitty on Commercial Law, 450. Letter from Mr. Clay, the Secretary of State, to Mr. Tudor, dated October 23d, 1827. (e) B. 3, c. 1, sec. 5. 1 The Ostsee, 33 E. L. & Eq. 28. The Coosa, 1 Newb. Adm. 393. 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) 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 an 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 * point. (e) But if the blockade be raised by the enemy, or by apply 146 (a) The Mercurius, 1 Rob. Rep. 80. The Betsey, 1 Rob. Rep. 93. The Stert, 4 Rob. Rep. 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, Sept. 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, January 14th, 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." (c) The Frederick Molke, 1 Rob. Rep. 86. The Columbia, 1 Rob. Rep. 154. The Juffrow Maria Schroeder, 3 Rob. Rep. 155. The Hoffnung, 6 Rob. Rep. 116, 117. (d) Mr. Marshall's Letter to Mr. King, September 20th, 1799. (e) Radcliff, J., 2 Johns. Cas. 187. Radcliff v. U. Ins. Co. 7 Johns. Rep. 38. ing the naval force, or a 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. (a) 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 frauduently; 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. (b) 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 *147 before the commencement of the blockade. (c) 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. (d) (a) Williams v. Smith, 2 Caines's Rep. 1. Letter of the Secretary of State to Mr. King, September 20th, 1799. The Hoffnung, 6 Rob. Rep. 112. (b) Bynk. Q. J. Pub. b. 1, c. 4. The Frederick Molke, 1 Rob. Rep. 86. The Neptunus, 1 Rob. Rep. 170. The Vrouw Judith, 1 Rob. Rep. 150. (c) The Betsey, 1 Rob. Rep. 93. The Vrouw Judith, 1 Rob. Rep. 150. The Comet, 1 Edw. Rep. 32. Olivera v. Union Ins. Co. 3 Wheaton, 183. (d) The Ocean, 3 Rob. Rep. 297. The Stert, ibid. 299, note. Letter of the Secretary of State to Mr. King, September 20th, 1799. 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. (a) In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this dif ference 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 blockaded place, 148 on a doubtful and provisional destination. (b) 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, (c) 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 in (a) The Neptunus, 2 Rob. Rep. 110. (b) The Columbia, 1 Rob. Rep. 154. (c) 2 Rob. Rep. 111, in notis. The Adelaide, 2 Rob. Rep. 111, note. quiring 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) A neutral cannot be permitted to place himself in the vicinity of a blockaded port, if his situation be so near that he * 149 may, with impunity, break the blockade whenever 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. (b) 1 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 (a) The Spes and Irene, 5 Rob. Rep. 76. (b) The Neutralitet, 6 Rob. Rep. 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. United Ins. Co. 7 Johns. Rep. 47. Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185. The property of a neutral is not liable to condemnation for a breach of blockade by a vessel in which he embarks, when entering or departing from port, unless he knew of the intention of the vessel to break it in going out. United States v. Guillem, 11 How. U. S. 47. A neutral leaving a belligerent country, in which he was domiciled at the commencement of war, is entitled to the rights of a neutral as soon as he sails from the hostile port. Ibid. see ante, pp. 32, 86, [75, 78.] |