notification is, primâ facie, to be presumed to continue Chap. III. till the notification is revoked" (b). And in another case he says:-"The effect of a notification to any foreign government would clearly be to include all the individuals of that nation; it would be nugatory, if individuals were allowed to plead their ignorance of it; it is the duty of foreign governments to communicate the information to their subjects, whose interests they are bound to protect. I shall hold, therefore, that a neutral master can never be heard to aver against a notification of blockade that he is ignorant of it. If he is really ignorant of it, it may be subject of representation to his own government, and may raise a claim of compensation from them, but it can be no plea in the court of a belligerent. In the case of a blockade de facto only, it may be otherwise; but this is a case of a blockade by notification. Another distinction between a notified blockade and a blockade existing de facto only, is, that in the former the act of sailing for a blockaded place is sufficient to constitute the offence. It is to be presumed that the notification will be formally revoked, and that due notice will be given of it; till that is done, the port is to be considered as closed up, and from the moment of quitting port to sail on such a destination, the offence of violating the blockade is complete, and the property engaged in it subject to confiscation. It may be different in a blockade existing de facto only; there no presumption arises as to the continuance, and the ignorance of the party may be admitted as an excuse for sailing on a doubtful and provisional destination" '(c).

§ 515a.

blockades.

In the case of a simple blockade, the captors are bound to prove its Simple and existence at the time of capture; while in the case of a public blockade, public the claimants are held liable to proof of discontinuance, in order to protect themselves from the penalties of alleged violation (d). In the case of a public blockade, a ship hovering near a blockaded port cannot say she was going to the blockading squadron to ask for authority to continue her voyage (e).

(b) The Neptunus, 1 C. Rob. 171.
(c) The Neptunus, Hempel, 2 C. Rob.

112.

(d) The Circassian, 2 Wallace, 150.

(e) The Admiral, 3 Wallace, 603; The Josephine, Ibid. 83; The Cheshire, Ibid. 231.

Part IV. § 515b.

Extent of notice.

§ 516. Treaty stipulations as to notice.

"A notice of blockade," says Prof. Bernard, "must not be more extensive than the blockade itself. A belligerent cannot be allowed to proclaim that he has instituted a blockade of all the ports of the enemy, within certain specified limits, when in truth he has only blockaded some of them. Such a course would introduce all the evils of what is termed a 'paper blockade,' and would be attended with the grossest injustice to the commerce of neutrals. Accordingly, a neutral is at liberty to disregard such a notice, and is not liable to the penalties attending a breach of blockade for afterwards attempting to enter one of the ports which really are blockaded" (f).

A more definite rule as to the notification of an existing blockade has been frequently provided by conventional stipulations between different maritime powers. Thus, by the 18th article of the treaty of 1794, between Great Britain and the United States, it was declared—" That whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." This stipulation, which is equivalent to that contained in previous treaties between Great Britain and the Baltic powers, having been disregarded by the naval authorities and prize courts in the West Indies, the attention of the British government was called to the subject by an official communication from the American government. In consequence of this communication, instructions were sent out in the year 1804, by the Board of Admiralty, to the naval commanders and judges of the vice-admiralty courts, not to consider any blockade of the French West-India islands as existing, unless in respect to particular ports which were actually invested; and then not to capture vessels bound to such ports, unless they should

(f) Mountague Bernard, Neutrality of Gt. Britain, p. 231. Northcote v. Douglas (The Franciska), 10 Moo. P. C. 37.

previously have been warned not to enter them. The Chap. III. stipulation in the treaty intended to be enforced by these instructions seems to be a correct exposition of the law of nations, and is admitted by the contracting parties to be a correct exposition of that law, or to constitute a rule between themselves in place of it. Neither the law of nations nor the treaty admits of the condemnation of a neutral vessel for the mere intention to enter a blockaded port, unconnected with any fact. In the above-cited cases, the fact of sailing was coupled with the intention, and the condemnation was thus founded upon a supposed actual breach of the blockade. Sailing for a blockaded port, knowing it to be blockaded, was there construed into an attempt to enter that port, and was, therefore, adjudged a breach of blockade from the departure of the vessel. But the fact of clearing out for a blockaded port is, in itself, innocent, unless it be accompanied with a knowledge of the blockade. The right to treat the vessel as an enemy, is declared by Vattel (liv. iii. sect. 177) to be founded on the attempt to enter; and certainly this attempt must be made by a person knowing the fact. The import of the treaty, and of the instructions issued in pursuance of the treaty, is, that a vessel cannot be placed in the situation of one having a notice of the blockade, until she is warned off. They gave her a right to inquire of the blockading squadron, if she had not previously received this warning from one capable of giving it, and consequently dispensed with her making that inquiry elsewhere. A neutral vessel might thus lawfully sail for a blockaded port, knowing it to be blockaded; and being found sailing towards such a port would not constitute an attempt to break the blockade, unless she should be actually warned off (g).

Where an enemy's port was blockade by notification, and at

(g) Fitzsimmons v. The Newport Insurance Company, 4 Cranch, 185. Mr.

§ 517. declared in a state of Blockading the same time when the off by hostile

Merry's Letter to Mr. Secretary Madi-
son, 12th April, 1804. Wheaton's Rep.
vol. iii. Appendix, p. 11.

force driven

attack.

Part IV. notification was issued, news arrived that the blockading

$518. New notice necessary in such a case.

squadron had been driven off by a superior force of the
enemy, the blockade was held by the Prize Court to be
null and defective from the beginning, in the main
circumstance that it is essentially to give it legal opera-
tion; and that it would be unjust to hold neutral vessels
to the observance of a notification, accompanied by a
circumstance that defeated its effect. This case was,
therefore, considered as independent of the presumption
arising from notification in other instances; the notifica-
tion being defeated, it must have been shown that the
actual blockade was again resumed, and the vessel would
have been entitled to a warning, if any such blockade
had existed when she arrived off the port. The mere
act of sailing for the port, under the dubious state of the
actual blockade at the time, was deemed insufficient to fix
upon the vessel the penalty for breaking the blockade (h).
In the above case, a question was raised whether the
notification which had issued was not still operative; but
the court was of opinion that it could not be so con-
sidered, and that a neutral power was not obliged, under
such circumstances, to presume the continuance of a
blockade, nor to act upon a supposition that the blockade
would be resumed by any other competent force.
in a subsequent case, where it was suggested that the
blockading squadron had actually returned to its former
station off the port, in order to renew the blockade, a
question arose whether there had been that notoriety of
the fact, arising from the operation of time, or other cir-
cumstances, which must be taken to have brought the
existence of the blockade to the knowledge of the
parties. Among other modes of resolving this question,
a prevailing consideration would have been the length of
time in proportion to the distance of the country from
which the vessel sailed. But as nothing more came out
in evidence than that the squadron came off the port on
a certain day, it was held that this would not restore a

(h) The Triheten, 6 C. Rob. 65.

But

699

blockade which had been thus effectually raised, but Chap. III. that it must be renewed again by notification, before foreign nations could be affected with an obligation to observe it. The squadron might return off the port with different intentions. It might arrive there as a fleet of observation merely, or for the purpose of only a qualified blockade. On the other hand, the commander might attempt to connect the two blockades together; but this is what could not be done; and, in order to revive the former blockade, the same form of communication must have been observed de novo that is necessary to establish an original blockade (i).

§ 519.

violation

3. Besides the knowledge of the party, some act of Some act of violation is essential to a breach of blockade; as either necessary. going in or coming out of the port with a cargo laden after the commencement of the blockade (k).

Thus, by the edict of the States-General of Holland, of 1630, relative to the blockade of the ports of Flanders, it was ordered that the vessels and goods of neutrals which should be found going in or coming out of the said ports, or so near thereto as to show beyond a doubt that they were endeavouring to run into them; or which, from the documents on board, should appear bound to the said ports, although they should be found at a distance from them, should be confiscated, unless they should, voluntarily, before coming in sight of or being chased by the Dutch ships of war, change their intention, while the thing was yet undone, and alter their course. Bynkershoek, in commenting upon this part of the decree, defends the reasonableness of the provision which affects vessels found so near to the blockaded ports as to show beyond a doubt that they were endeavouring to run into them, upon the ground of legal presumption, with the exception of extreme and well-proved necessity only. Still more reasonable is the infliction of the penalty of confiscation, where the intention is expressly avowed by the papers found on board. The third article of the same

(i) The Hoffnung, Ibid. 112.

(k) The Betsey, 1 C. Rob. 93.