Penalty for breach ade seizure and confiscation of the property was imminent and pressing.1 $35. No rule in the law of nations,' says Duer, 'is more of block certainly and absolutely established than that the breach of a blockade subjects all the property, so employed, to confiscation by the belligerent power whose rights are violated. Among all the contradictory positions that have been advanced on the law of nations, this principle has never been disputed. It is to be found in all the writings on public law; is frequently admitted, and never denied in treatics; is universally acknowledged by all governments that have any degree of civil instruction; and is known to all their subjects, who have any interest to possess the knowledge. ... The confiscation of the ship, where a violation of the blockade is justly imputed to the owners, or to the master, acting with or without the authority of the owners, is, in all cases, a necessary consequence. . . The goods that compose the cargo, so far as they are the property of the owners of the ship, upon the principle stated, necessarily share its fate; and even where they are the property of other shippers, as a general rule, they are involved in the same condemnation. It is only in a few cases, where the innocence of the owner is apparent and undeniable, that they are exempt. 1 It may be questioned how far the Declaration of Paris, 1856, that 'free ships make free goods,' can be extended to the carrying of enemy's property out of a blockaded port. A similar question collaterally arose under the Treaty of 1654 between Great Britain and Portugal, a cargo being documented as the property of Portuguese neutral merchants, though claimed generally, and not verified in the depositions. Restitution was decreed, the Court declining, under the circumstances, to order further proof of the property. (The 'Nostra Señhora da Adjuda,' 5 Rob., 52.) A neutral ship coming out of a blockaded port, laden with a cargo, in consequence of a rumour that hostilities were likely to take place between the enemy and the country to which the vessel belonged, the regulations of the enemy not permitting a departure in ballast, was held not to be liable to condemnation, and was decreed to be restored. The cargo was condemned, though put on board against the will of the master. (The 'Drie Vrienden,' 1 Dodson, 269.) A neutral is not justified in violating a blockade under an apprehension, whether well or ill founded, of seizure of his property by the enemy. He is to rely on his neutrality, and to look to his own Government for protection. (The 'Wasser-Hund,' I Dodson, 272, n.) In an English court it is no excuse for breach of blockade by egress that the cargo was intended to be brought to Great Britain. (The 'Byfield,' 1 Edwards, 189.) The cargo may be condemned for an attempt by the vessel to violate the blockade, although the vessel has not been taken on process in the suit. (The 'Joseph H. Toone,' Blatchf., Pr. Cas., The presumption of law, founded on very probable reasoning, is, that the violation of a blockade is intended for the benefit of the cargo, as well as of the ship, and consequently, that it is made with the sanction and under the instructions of its owners; and, in all cases, where the innocence of the owners is not manifested by the papers on board, this presumption prevails to exclude the proof. Thus the rule applies, even where the apparent destination of the ship, judging from her papers, was to a different port, and the attempt to enter that under blockade was a deviation from the regular course of the voyage. Where the only assignable motive for such a deviation is an intention to dispose of the cargo in the blockaded port, and, by such a disposition, to promote the interests of its owners, they are not allowed to contradict the presumption that the master, thus visibly acting for their benefit, was not also acting under their secret authority.' ' demnation § 36. But if it be clearly established, by proofs found on When board at the time of the capture, that, at the inception of the cargo is exempted voyage, the owners of the cargo stood clear, even from a pos- from consible intention of fraud, their property will be excepted from the penal consequences of the breach of the blockade. Thus, where the illegality consists in the misconduct of the master in attempting to enter a blockaded port, if it be certain that, when the voyage commenced, the existence of the blockade neither was, nor could have been, known at her port of departure, the owners of the cargo could not possibly have contemplated a breach of the blockade. In such cases, the act of the master, although it prevail to condemn the ship, will not condemn the cargo also, for there is no general or necessary relation of principal and agent between its owners and the master. So, also, in case of egress, the ship may be subject to condemnation, and yet the cargo may be restored, although laden during the blockade, if the innocence of its owners be certain and indisputable. Thus, if their orders for the shipment of the goods were given to their agents in the blockaded port before the blockade existed, or was known to exist, and they could not, by any diligence, after the blockade was known to them, countermand their orders in time to prevent their execution, the owners are deemed innocent. In such cases, the agents and owners do not stand in the same Duer, On Insurance, vol. i. pp. 683 685. VOL. II. P Duration of offence relative situation of ordinary agents and principals, for the § 37. To justify a capture for the violation of a blockade, or the attempt to violate it, the offence must continue to exist at the time of seizure. In technical language, the ship must be then in delito In cases where the ship has violated the blockade by egress, the delictum continues during her whole voyage, till she has reached her final port of destination. Until then, as the offence consists, not in the mere attempt, but in an actual breach, no change of circumstances, or subsequent repentance, can efface the guilt. It is not cancelled by a mere interruption of the voyage, such as the stopping of the ship at an intermediate port, either from necessity or design; when she resumes her voyage, she becomes again subject to the penalty of the law. But when The Exchange,' 1 Edw. R., 43; the 'Alexander,' 4 Rob., 93; the Mercurius,' 1 Rob., 80; the 'Neptunus,' 3 Rob., 173; the Adelaide,' 3 Rob., 281; the Manchester,' 2 Act. R., 687; the United States v. Guillem, 11 Howard R., 62. The acts of a master in breach of a blockade affect the cargo equally with the vessel if the cargo is laden on board after the blockade has become effective as to the vessel. (The 'Hiawatha,' Blatchf. Pr. Cas., 1; the 'Crenshaw,' ibid. 23.) Where a vessel and cargo were owned by unnaturalised foreigners, residing in the enemy's country, who came in her, out of a blockaded port of the enemy, with the sole purpose of escaping with their property from the enemy, and delivering that and themselves to the blockading squadron, and to the authority of the United States, it was held by the District Court of New York that they should be restored, but without costs, there being probable cause for the seizure. (The Evening Star,' Blatchf. Pr. Cas., 582.) a ship sails for a blockaded port, with a knowledge of the blockade, and the intention to violate it, the offence is so far complete as to justify her immediate capture; yet, as it exists only in an attempt, the delictum does not necessarily continue during the whole of her subsequent voyage. If, previous to her capture, the blockade had ceased to exist, or the master, from the information of a ship of war of the blockading State, had just grounds for believing that such was the fact, or had altered his destination, with the intention of not proceeding at all to the blockaded port, the offence no longer exists, and that which had existed is no longer punishable. To constitute the offence, three circumstances must be found to co-exist: the fact of a blockade, the party's knowledge of its existence, and his intention to violate it; and, in each of the above cases, an indispensable circumstance is wanting. The delictum, therefore, at the time of capture, had wholly ceased, and both ship and cargo will be restored. how af violation § 38. It may be stated, in general terms, that an insurance Insumade in the country of the blockading State, is necessarily rance, invalid from the time the property insured becomes liable to fected by confiscation by the violation, or attempted violation, of a of a blockade, and that the invalidity continues so long as this blockade liability exists. Where the ship is insured upon time, although the contract may not be void in its origin, it may be rendered so, by the contravention of a blockade, for the particular voyage to which the legal penalty attaches; but where the voyage has been terminated, and the liability to capture no longer exists, it seems probable that the obligation of the contract would be held to revive. The effect of a supervening war, by which the property insured is rendered that of an enemy, according to Lord Ellenborough, is to exonerate the insurers from all the risks of the policy during the continuance of the hostilities. This language plainly implies that the contract is not annulled, but merely suspended by the operation of the war, and that the return of peace, should the policy not have expired by its own terms, will restore its life and obligatory force. The doctrine seems, in itself, just and reasonable, and, in cases where the policy is not so entire as to preclude any separation of its risks, may be applied, with equal justice, to every case of supervening illegality; that is, an illegality arising after the commence Hautefeuille's blockades ment of the risks. Such seems to be the rule established by the decisions of the courts of Common Law in England, although the opposite rule has been assumed in the United States.1 § 39. Hautefeuille's theory of blockades differs from those of the generality of writers on international law, and especially theory of the law of from the decisions of English and American jurists. He considers the right of maritime blockade to result from the right of conquest, by the successful belligerent's getting military possession of an enemy's port, or of a belt of territorial sea surrounding or commanding it, precisely as he would of a belt of land around a fort in case of a siege. The conqueror, being thus in possession of a portion of an enemy's territory, may, so long as he retains that possession, extend over it his own laws and jurisdiction. He may prohibit foreigners from entering such territory, either for commerce or any other purpose, or he may permit them to enter on such terms as he may see fit to impose, precisely as he might do if it were a part of his most ancient dominion. The right of blockade, therefore, extends over only so much of the sea as is, in international law, regarded as territorial and liable to conquest, although the blockading force may be stationed outside of the territorial limit, and consequently on the high sea, which can never be subjected to local jurisdiction. In order to blockade a maritime port, or territorial sea, it is necessary that the blockading force acquire the sovereignty of it, and actually hold it in possession. This definition of a blockade gives rise to very few questions with respect to its establishment or continuance, nor can there be much dispute about what is to be regarded as a violation of it. It is a visible, material fact, and any notification of that fact would be unnecessary and superfluous, for neutrals can see the conqueror's possession, and readily ascertain from him whether or not they are permitted to enter, and if so, upon what terms. So long as they remain without the line of territorial jurisdiction they violate no rights of blockade. If they pass, or attempt to pass, against the will of the new sovereign, this magic line, they become liable to capture; but they must be 1 See Duer, On Insurance, vol. i. pp. 688, 690, and note ii. pp. 463–478; Brandon 7. Curling, 4 East., 410; Harratt v. Wise, 9 B. and C., 712; Naylor 7. Taylor, ibid. 718; Medeiras v. Hill 8 Bing. R., 231; ch. xxiii. $21, post. |