been placed under blockade, even where the blockade itself has been a subject of diplomatic Notification to neutral States. Such was the substance of the instructions given to the French cruisers both in 1827 and in 1830, when they established a blockade of the ports of the Regency of Algiers. Such also was the purport of the instructions contained in the Letter of Count Molé of 20th October 1838, which he addressed to the French Minister of Marine for the information of the commander of the French squadron then blockading the ports of Mexico". M. Molé, in a despatch of 17th of May 1838, in reference to the blockade of the ports of the Argentine Republic, has stated very clearly the principles upon which the French Courts of Prize proceed: "Tout blocus pour être valable envers les neutres, doit leur avoir été notifié et être effectif.

"Un navire, se présentant devant un port bloqué avant d'avoir eu connoissance de blocus, doit d'abord en être averti, et la notification doit en être faite par écrit, et sur son rôle d'équipage. Mais cet avis ayant été donné, et cette formalité ayant été remplié, s'il persiste à entrer dans le port, ou s'il vient à s'y présenter de nouveau, le commandant du blocus a le droit de l'arrêter 42,"

In accordance with the above rules, we find the French Courts of Prize deciding on 21 Dec. 1847, in the case of La Louisa, captured in the waters of the River Plata, that it was not sufficient that the blockade should have been notified to foreign Powers: it was necessary that the ship itself should have notice of the existence and extent of the blockade,

41 This letter is given in extenso by M. Ortolan, in his Diplomatie de la Mer, Tom. II.

P. 304.

42 Pistoye et Duverdy, Traité des Prises Maritimes, Tom. I. p. 382.

43 Ibid. p. 382.

the United

Courts as

and that the notice should be entered on the ship's log before she could be captured and condemned as prize of war for violation of the blockade. On the other hand, the same Courts on 4 March 1830 condemned the vessel La Carolina", as good prize, because there had been an effective blockade of the ports of the Regency of Algiers, established since the month of May 1827, in virtue of orders transmitted from the French Government; and that the master of the Carolina had been warned of the existence of the blockade some days before the capture of his vessel, and a notice to that effect had been entered in the log of the vessel; and that after this direct warning, he had attempted to break the blockade, and enter the port of Oran."

Practice of § 108. The doctrine of the British Courts of Prize, States that due notice of a blockade may be received constructo notice. tively, has been adopted by the jurists of the United States of America. Thus Chancellor Kent writes: "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 the duty of the neutral Government to communicate the Notice to

44 Pistoye et Duverdy, Prises Maritimes, Tom. I. p. 381.

45 Commentaries of American Law, Tom. I. p. 147.

their people. In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this difference 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, on a doubtful and provisional destination 16. 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 "."

47

of a block

§ 109. The third question to be considered is what Violation conduct renders a neutral vessel liable to capture ade. and condemnation for violating a blockade. By the second article of the Ordinance of the States General of the United Provinces, issued on 26 June 1630, already referred to, it was provided "that neutral vessels and their cargoes should be confiscated, when it shall be found from their cargo-papers or other documents that they have been laden in the blockaded ports, or are destined to go to such ports, although they should be found at such a distance from them, that they might possibly change their voyage and intention. This rule being founded on the fact that they have already embarked upon an illicit enterprise and put it in train of execution, although

46 The Columbia, 1 Ch. Rob. p. 130.

PART II.

47 The Neptunus, 2 Ch. Rob.

p. 110.

P

they have not completed it nor brought it to the last point of perfection, the only exception to it can be permitted, when the masters and owners of such vessels can duly show, that they have desisted of their own accord from their enterprise and illicit voyage, before any vessel of war came in sight of them or gave chase to them." The English and American Courts of Prize proceed in the present day upon the principles maintained by the States General in regard to vessels, which have once set sail with an intention to enter a port known to the masters of such vessels to be under blockade. "It has been said," observed Lord Stowell 19, " that the vessel had not arrived, that the offence was not actually committed, but rested in intention only. On this point I am clearly of opinion that the sailing with an intention of evading the blockade of the Texel was beginning to execute that intention; and is an overt act constituting the offence. From that moment the blockade is fraudently evaded." In commenting upon this and other judgments of the English Courts, that eminent American Judge, Chief-Justice Marshall, has observed, "Neither the Law of Nations nor the Treaty (between the United States and Great Britain) admits of the condemnation of the neutral vessel for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, has been in some English cases construed into an attempt to enter that port, and has therefore been adjudged a breach of the blockade from the departure of the vessel. Without giving any opinion on that point, it may be observed that in such cases the fact of sailing is coupled with

48 Robinson's Collectanea Maritima, p. 165. Bynkershoek, Qu. Jur. Publ. L. I. c. 1 I.

49 The Columbia, I Ch. Rob. p. 155. Cf. Madeiros v. Hill, 8 Bingham, p. 231.

the intention, and the sentence of condemnation is founded on an actual breach of the blockade 50." The same learned Judge in another case observed that sailing from Tobago to Curaçoa, knowing Curaçoa to be blockaded, would have incurred the risk of breaking the blockade; but sailing for that port without such knowledge did not incur it."

The rule of the English Courts in considering the act of sailing for a blockaded port to be in law an attempt to enter it, is a peremptory rule in the case of a blockade, which has been notified by the belligerent Government to neutral Governments, inasmuch as in the case of a blockade which has been publicly notified, the parties despatching the ship are not entitled to presume that the blockade has been raised, unless the revocation of the blockade has also been publicly notified 52.

British

§ 110. A certain equity has been administered by Equity of the English Prize Courts towards vessels which have Prize been despatched from a port very distant from the Courts. blockaded port. Thus Lord Stowell held that American vessels were entitled to the benefit of a contingent destination to be ascertained and rendered definite, by the information which they should receive in Europe. "It must be inferred," he says, "and indeed admitted, that the Notification of the blockade of Havre had been received in America. To all general rules of observance of a blockade duly imposed, the subjects of America are undoubtedly bound equally with those of other countries. At the same time, looking to the great distance at which they are placed, and being unwilling to press with 446. Kent's Commentaries, Tom. I. p. 150.

50 Fitzsimmons 2. The Newport Insurance Company, 4 Cranch, p. 185.

51 Yeaton v. Fry, 5 Cranch, p. 335. Cf. The Nereide, 9 Cranch,

p.

52 The Vrow Johanna, 4 Ch. Rob. p. 109.