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ing to run a blockade, they were in clear violation of the express terms of the treaty, and wholly improper and inadmissible."

Mr. Bayard, Sec. of State, to Mr. Preston, Haytian min., Nov. 28, 1888,
For. Rel. 1888, I. 1001.

The Haytian Government was required to release the vessel and pay an
indemnity.

"3. Neutral vessels are entitled to notification of a blockade before they can be made prize for its attempted violation. The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation of the government maintaining the blockade, or by common notoriety. If a neutral vessel can be shown to have had notice of the blockade in any way, she is good prize and should be sent in for adjudication; but, should formal notice not have been given, the rule of constructive knowledge arising from notoriety should be construed in a manner liberal to the neutral.

"4. Vessels appearing before a blockaded port, having sailed without notification, are entitled to actual notice by a blockading vessel. They should be boarded by an officer, who should enter in the ship's log the fact of such notice, such entry to include the name of the blockading vessel giving notice, the extent of the blockade, the date and place, verified by his official signature. The vessel is then to be set free; and should she again attempt to enter the same or any other blockaded port as to which she has had notice she is good prize.

"5. Should it appear from a vessel's clearance that she sailed after notice of blockade had been communicated to the country of her port of departure, or after the fact of blockade had, by a fair assumption, become commonly known at that port, she should be sent in as a prize. There are, however, treaty exceptions to this rule, and these exceptions should be strictly observed."

Instructions to U. S. Blockading Vessels and Cruisers, General Orders,
No. 492, June 20, 1898, For. Rel. 1898, 780.

In numerous treaties negotiated by the United States it is provided that, notwithstanding a diplomatic general notice of blockade, a neutral vessel can not be condemned for blockade running unless she had notice en route that the place in question was blockaded. (Treaty with Sweden, September 4, 1816; July 14, 1827; with Prussia, May 1, 1828; with Greece, December 10, 1837; with Sardinia, November 26, 1837.) In other treaties special notification is made dependent. on the question of the knowledge or ignorance of the party seized. (Treaty of the United States with Great Britain, November 28, 1795; with France, September 30, 1800; with Hayti, November 3, 1864; with Italy, February 27, 1871.) "But notwithstanding these treaties,

the Government of the United States seems to look upon the diplo matic notice as superfluous, and to exact in all cases a special notification. The instructions of May 14, 1846, relating to the blockade of Mexican ports prescribe that no neutral vessel entering into a blockaded port can be captured or detained unless it has received from one of the blockading squadron special notice of the existence." (Martens Nouv. rec. IX. 167.) The proclamation of President Lincoln of April 19, 1861, declares that if, with the intention to violate the blockade, a ship attempts to leave or to enter one of the blockaded ports, there must be an examination by the commander of one of the blockading vessels, who shall take due note of the fact and date of the notice. Lord Lyons to Lord Russell, May 2, 1861; Mr. Seward to the minister of Spain, Archiv. Dip., 1861, ii, 265; iii, 438, 443, But the American prize courts have not accepted this opinion of the Executive, and courts have declared that a vessel could be taken prize without special notice, if the officers of the vessel had knowledge of the blockade, and were consequently chargeable with bad faith. (The Circassian, 2 Wall. 135.)

Fauchille, Blocus Maritime (Paris, 1882), 202–204.

For the notification by the United States, in 1846, of the blockade of the
Mexican ports in the Pacific, see Br. & For. State Papers (1845,
1846), 1139.
"According to the Anglo-American rule, a public notification given by the
belligerent to a neutral government is ordinarily sufficient to convict
all subjects of that government of the requisite guilty intent. pro-
vided that the statements of the notice are fully borne out by the
facts of the actual blockade.” (Walker, Science of International
Law, 520, cited by Charles Noble Gregory, in an article on the law of
blockade, 12 Yale Law Review, April, 1903, 339, 341.)

2. SAILING TOWARDS BLOCKADED PORT.

§ 1273.

"The fact of clearing out for a blockaded port, is in itself innocent, unless it be accompanied with knowledge of the blockade. The clearance, therefore, is not considered as the offence; the persisting in the intention to enter that port, after warning by the blockading force, is the ground for the sentence.

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“Vattel, b. 3, s. 177, says, 'All commerce is entirely prohibited with a besieged town. If I lay siege to a place, or only form the blockade. I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the besieged, without my leave.' The right to treat the vessel as an enemy is declared, by Vattel, to be founded on the attempt to enter, and certainly this attempt must be made by a person knowing the fact."

Marshall, Ch. J., Fitzsimmons v. Newport Ins. Co. (1808), 4 Cranch, 185, 198.

A vessel sailing from a neutral port with intent to violate a blockade is liable to capture and condemnation as prize from the time of sailing, though she intend to call at another neutral port, not reached at time of capture, before proceeding to her ulterior destination.

The Circassian, 2 Wall. 135.

That a blockade runner is in delicto from the moment she sails, see The
Galen (1901), 37 Ct. Cl. 89.

But a mere abandoned purpose, there having been no overt act to execute it, is not ground for seizure.

1 Kent Com. 147; The John Gilpin, Blatchf. Pr. Ca. 291.

The approach of a vessel to the mouth of a blockaded port for inquiry the blockade having been generally known-is itself a breach of the blockade, and subjects both vessel and cargo to condemnation. The Cheshire, 3 Wall. 231.

"If approach for inquiry were permissible it will be readily seen that the greatest facilities would be afforded to elude the blockade."

Field, J., The Cheshire, 3 Wall. 231, 235; s. P., The Spes, 5 C. Rob. 80;
The Charlotte Christine, 6 C. Rob. 101.

Mere sailing for a blockaded port is not an offense, but where the vessel has knowledge of the blockade, and sails with the intention of violating it, she is liable to capture. A vessel setting sail from England on the 9th of September, 1861, with actual knowledge of a proclamation which the President of the United States made on the 19th of the April preceding, blockading certain Southern ports, had no right, under an allegation of a purpose to see if the blockade existed, to sail to one of the ports actually blockaded.

The Admiral, 3 Wall. 603.

Where a clearance of a vessel expressed a neutral port to be her sole port of destination, but the facts showed that her primary purpose was to get cargoes into and out of a port under blockade, the outward cargo, if obtained, to go to the neutral port named as the one cleared for, the fact that the vessel's letter of instructions directed the master to call off the blockaded port and, if he should find the blockade still in force, to get the officer in command of the blockading ship to indorse on the vessel's register that she had been warned off (in accordance with what the owners of the vessel asserted to be their understanding of neutral rights under the President's proclamation of the 19th of April, 1861), and then to go to the port for which the

clearance called, will not save the vessel from condemnation as prize, she having been captured close by the blockaded port, standing in for it, and without ever having made an inquiry anywhere whether the port was blockaded or not.

The Admiral, 3 Wall. 603.

Where a neutral vessel, which had apparently set out on a lawful voyage, was captured, she was restored, the only evidence against her being that, when captured, she was out of the most direct and regular course, which was explained by the fact of there having been rough weather, which made it desirable for her to take the course she did. The Sea Witch, 6 Wall. 242.

"6. A neutral vessel may sail in good faith for a blockaded port with an alternative destination to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. But, in such case, she is not allowed to continue her voyage to the blockaded port in alleged quest of information as to the status of the blockade, but must obtain it and decide upon her course before she arrives in suspicious vicinity; and if the blockade has been formally established with due notification, any doubt as to the good faith of such a proceeding should go against the neutral and subject her to seizure."

Instructions to U. S. Blockading Vessels and Cruisers, General Orders, No. 420, June 20, 1898, For. Rel. 1898, 780.

3. ATTEMPT TO ENTER.

§ 1274.

A British prize sentence, condemning an American vessel, recited that, the vessel having been cleared for Cadiz, a port actually blockaded by the British, the master of the brig" persisted in his intention of entering that port, after warning from the blockading force not to do so." The condemnation occurred in August, 1800. By article 18 of the treaty between the United States and Great Britain of 1794 it was provided that if a vessel sailed for a blockaded port without knowledge of the blockade, she might be turned away, but should not be detained, nor the cargo, if not contraband, be confiscated. "unless after notice she shall again attempt to enter." It was held that "persisting in an intention" was not an "attempt to enter," and that the decree did not show a valid ground of condemnation. This being so, it was held that the parties might look to other evidence in the case. The facts were recited in a special verdict, by which it appeared that the vessel, instead of being first turned away, was,

though she had no previous knowledge of the blockade, simply detained, and that her master was drawn into certain conversations in which he used expressions which might be construed as evidence. of an intention to sail for Cadiz, should he be liberated. These facts were held not to amount to an attempt again to enter that port. As to what might constitute such an attempt, the court observed: Lingering about the place, as if watching for an opportunity to sail into it, or the single circumstance of not making immediately for some other port, or possibly obstinate and determined declarations of a resolution to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port."

66

Fitzsimmons v. Newport Ins. Co. (1808), 4 Cranch, 185, 200.

No neutral can, after knowledge of a blockade, lawfully enter or attempt to enter the blockaded port; and to do so would be a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation.

McCall v. Marine Ins. Co., 8 Cranch, 59.

Preparations towards entering a blockaded port, such as hovering around it, with other acts from which an intention to enter may be inferred, are grounds for seizure, unless the blockade is exclusively for ingress or egress.

The Coosa, 1 Newb. Adm. 393; The Hiawatha, Blatchf. Pr. Ca. 1; The Empress, Blathehf. Pr. Ca. 175; Halleck, Int. Law (1861), ch. 23, § 23.

If a vessel is found without a proper license near a blockading squadron, under circumstances indicating intent to run the blockade, and in such a position that if not prevented she might pass the blockading force, she cannot thus, flagrante facto, set up as an excuse that she was seeking the squadron with a view of getting an authority to proceed on her desired voyage.

The Josephine, 3 Wall. 83.

A neutral professing to be engaged in trade with a neutral port situated so near to a blockaded port as to warrant close observation by the blockading squadron must keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the blockading line as to repel, so far as position can repel, all imputation of intent. to break the blockade; and neglect of that duty may well justify capture and sending in for adjudication, though it might not justify a condemnation in the absence of evidence that the neglect was willful.

The Dashing Wave, 5 Wall. 170.

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