"If," said he," the ships stationed on the spot to keep up the blockade will not use their force for that purpose, it is impossible for a court of justice to say, there was a blockade actually existing at that time, so as to bind this vessel." The permissive entry by the blockaders of vessels not specially privileged by law will thus invalidate a blockade otherwise lawfully instituted. Johanna," 2 The" Nep tunus," 2 C. Rob. 114. to Lord Mr Seward Lyons, May 27, 1861. Bernard, Neutrality of Great Continuity Britain, 238 of block ade not momentary accidental or unavoid absence, Radcliff v. United Ins. Co. 7 John. 54. The "Frederick Rob. 87. lumbia," The "Co Ibid. 154. Sir W. Scott lumbia," 1 in the "Co A blockade, in fact, originally actually and effectually broken by established ceases to be binding with the cessation of its effective maintenance. Mr Seward in 1861 ventured to contend that the blockade established by the Federals able upon the port of Charleston and duly notified to neutral Powers must be held to be continually in effect until notice of its relinquishment should be given by the President of the United States, and that in spite of the temporary absence of blockading vessels. The contention was, however, rightly repelled by Earl Russell. The continuity of a valid blockade is not, indeed, legally interrupted by the momentary absence of the blockading vessels in consequence of a merely accidental or unavoidable circumstance, such, for example, as the pursuit for a reasonable distance of a blockade-runner or stress of weather. "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." But the withdrawal, even though temporary, of the blockading squadron for other employments, or in consequence of the approach of superior hostile force, operates to raise the blockade, so as to render a new notification necessary on its resumption. C. Rob. 156. but a with drawal in consequence of belligerent force raises the blockade. The Triheten, The "Hoffbid.' 112. 6 C. Rob. 65. nung, The (iii) A §79. (iii) A blockade to be binding must be authoritatively blockade instituted. The “Rolla,” an American vessel, being proceeded against for a violation of the blockade of Monte Video in November, 1806, it was urged, amongst other grounds of defence, by the claimants, that the blockade in question was imposed without competent authority, having originated in the unauthorised to be binding must be authoritastituted. tively inState authority may be indirectly or The C. Rob. 364. present. in the "Rolla." (iv) To justify condem proceedings of the British Commander, Sir Home Popham, only, and without any communication from his Government. Sir W. Scott ruled that, however irregularly Sir Home Popham might have acted towards his own Government in undertaking an unauthorised expedition, the blockade could not be impeached by other Powers on the ground of insufficient authority. On stations in Europe, where Government is almost at hand to superintend and direct Sir W. Scott the course of operations under which it may be expedient that particular hostilities should be carried on, it may be different. But in distant parts of the world it cannot be disputed, I conceive, that a commander must be held to carry with him sufficient authority to act as well against the commerce of the enemy as against the enemy himself for the more immediate purpose of reduction." nation the blockaderunner must be affected with knowledge of the existence Radcliff v. Co. 7 John. 47. How may knowledge be proved? Continental practice requires an individual warning on the Directly or indirectly, however, a blockade must to be binding be established under State authorisation. § 80. (iv) To justify belligerent confiscation the fact of the existence of the blockade must have been, prior to the act of breach, actually or potentially within the knowledge of the neutral owner. To justify the condemnation of the blockade-runner the neutral owner must, it is universally agreed, be affected with knowledge of the existence of the blockade actually infringed. Practice is not, however, uniform as to the extent of evidence which is required to establish the guilty knowledge. The approved Continental practice demands that, before seizure as a blockade-runner, a neutral vessel should in every case have been previously specially notified of the existence of the blockade and warned off by a vessel of the blockading 1878, p. 400. squadron, the fact being attested by an entry upon the papers of the neutral ship. spot. p. 179. Droit Int. The Anglo- According to the Anglo-American rule the neutral trader may be affected with knowledge of the existence of a blockade diplomatic either by reason of a public notification of its establishment notifica tion, given by the Government of the blockading squadron to neutral Governments, or by a special notice given to the "A blockade may," however, "exist without a public declaration; although a declaration unsupported by fact will not be sufficient to establish it." It 146. ciska," 10 The "Fran Moore, or (2) warning. A blockade may commence de facto diplomatic without notification, but Sir W. Scott curius," 1 C. Sir W. Scott Judith," I C. in the "Mer Rob. 82. in the Rob. 152. in that case a It is certainly necessary," said Sir W. Scott in the case of the "Vrouw Judith " in 1799, "that a blockade should be intimated to neutral merchants in some way or other. may be notified in a public and solemn manner, by declaration to foreign governments; and this mode would always be most desirable, although it is sometimes omitted in practice; but it may commence also de facto, by a blockading force giving notice on the spot to those who come from a distance and who may be ignorant of the fact." In special the case of blockades commenced by naval commanders notificawithout express authorisation any notification must necessarily be, at least in the early days of the blockade, special. But even when a blockade has been de facto established without notification, a special warning off is not judged requisite by the Anglo-American Courts, when the vessel can otherwise be affected with knowledge of the existence the blockade. And in the case of vessels sailing out of a port, when a reasonable period has elapsed after the establishment of a de facto blockade upon it, no special warning is deemed by these Courts necessary. A neutral of tion should or dinarily be given. The "CoC. Rob. 156. "Prize lumbia," I The Cases," 2 Black 635. The "Vrouw existence ledge may of know be established by (3) proof of public notoriety, The "Tutela," 6 The "Fran ciska," 10 Moore, P. C. C. 57. but such will, in fact, according to the Anglo-American practice, be deemed to be in certain cases affected with guilty knowledge by proof of the public notoriety of the existence of a blockade. "If a blockade de facto be good in law," said the Court in C. Rob. 177. the case of the " Franciska," "without notification, and a wilful violation of a known legal blockade be punishable with confiscation-propositions which are free from doubt— knowledge the mode in which the knowledge has been acquired by the offender, if it be clearly proved to exist, cannot be of authentic. importance." To induce legal responsibility, however, knowledge acquired by public notoriety must be reasonably authentic. A public notification to one neutral Government will, after the lapse of a reasonable period, affect by public notoriety subjects of Governments not in receipt of notice. must be reason ably The "Franciska," 10 Moore, The P. C. C. 58. "Adelaide," 2 C. Rob. III n. (v) To justify condemnation there must be an overt act of violation of the blockade. Instances of privileged communi. cation with areas: § 81. (v) To justify belligerent confiscation there must have been on the part of the vessel some overt act of violation of the blockade. Certain vessels are by general international practice allowed to pass the lines of a blockading squadron. Thus 1. Neutral vessels already within a port at the time of the establishment of a hostile blockade upon it are permitted to come out within a reasonable period with cargo laden before the establishment of the blockade. But the blockaded term of stay must not be excessive, and any attempt to bring out cargo laden after, though purchased before, the institution of the blockade will induce confiscation. So, when a Prussian neutral vessel, which was in the Texel when the British on June 11, 1798 notified a blockade, proceeded, instead of withdrawing, to lade a cargo consisting The "Nep. of Portuguese property purchased before the notification, 1. Neutral vessels already in port. The "Vrouw Judith," I C. Rob. 150. دو tunus, Olivera v. Co. 3 194. Limitation of the privi lege. with which cargo she was taken when quitting port on September 7, Sir W. Scott decreed condemnation. The rule of exemption extends to merchandise sent in before the blockade and withdrawn bond fide by its neutral proprietor on the institution of the blockade. neutral merchantman can set up any legal claim to enter But no The a port after the institution of a blockade upon it, even though the entry be merely for the purpose of bringing away property purchased by a neutral merchant before the Calypso," establishment of the blockade. The 2 C. Rob. 298. The "Nep1 C. Rob. 170. tunus,' The "Juffrow Maria Schroeder," 4 C. Rob. 89 n. The Comet," Edwards, 32. 2. Neutral men-of war. Dig. 375, Limits of 2. Neutral men-of-war are permitted to communicate with blockaded ports, and to maintain intercourse between their own or any other neutral Government on the one side and neutral consular or diplomatic agents in the port on the other. The limits of neutral right in this regard were, however, well pointed out in a Circular of Vice-Admiral Milne in 1863 occasioned by the action of the British Acting Consul at Mobile in sending out a large amount of Confederate 3 Wharton, specie through the Northern blockading lines on H.M.'s ship 386. "Vesuvius." "I deem it right to point out to the officers in command of ships under my orders that even communications by neutral ships-of-war with a blockaded port are permissive only, to be regarded as a relaxation of the more rigid rule of war which formerly obtained, and which would probably be again reverted to in a great maritime war; and, further, that ships of war so communicating are not invested with a shadow of right to embark any property with the object of passing the blockade." the privi lege. U. S. Dipl. Corresp. 1863, 119, 129, 446, Circular of Vice Admiral Milne, Feb. 16, 1863. Corresp. 1863, P. 474. 3. Neutral vessels en relâche The "Charlotta," Edwards, 252. Radcliff v. Co. 7 John. 3. Neutral vessels in distress are permitted to seek the forcée. shelter of a blockaded port, when recourse thither is absolutely and unavoidably necessary. The plea of distress is, however, strictly scrutinised, and "nothing less than an Unit. Ins. unavoidable necessity which admits of no compromise and 55 cannot be resisted" will be accepted as sufficient to justify wa the passing of the blockading lines. So the plea of fear of danger within a blockaded port will not be lightly received in excuse for the egress of a neutral vessel. With the exception of such specially privileged communications any attempt on the part of a neutral vessel at entrance into or egress from a blockaded port is deemed an infringement of the blockade, and as such visited with condemnation. "Diana," 7 |