and slip in without obstruction. If that were to be permitted, it would be impossible that any blockade could be maintained. It is a presumption, almost de jure, that the neutral, if found on the interdicted waters, goes there with an intention to break the blockade; and it would require very clear and satisfactory evidence to repel the presumption of a criminal intent. (a) 1

1

The judicial decisions in England and in this country have given great precision to the law of blockade, by the application of it to particular cases, and by the extent, and clearness, and equity of their illustrations. They are distinguished, likewise, for general coincidence and harmony in their principles. All the cases admit, that the neutral must be chargeable with knowledge, either actual or constructive, of the existence of the blockade, and with an intent, and with some attempt, to break it, before he is to suffer the penalty of a violation of it. The evidence of that intent, and of the overt act, will greatly vary, according to circumstances; and the conclusion to be drawn from those circumstances will depend, in some degree, upon the character and judgment of the prize courts; but the true principles which ought to govern have rarely been a matter of dispute. The fact of clearing out or sailing for a blockaded port is, in itself, innocent, unless it be accompanied with knowledge of the blockade. Such a vessel not possessed of such previous knowledge is to be first warned of the fact, and a subsequent attempt to enter constitutes the breach. This was the provision in the treaty with England, in 1794, and it has been declared in other cases, and is considered to be a correct exposition of the law of nations. (b)

(a) The Neutralitet, 6 Rob. Adm. 30; The Charlotte Christine, 6 Rob. Adm. 101; The Gute Erwartung, 6 Rob. Adm. 182; Bynk. Q. J. Pub. b. 1, c. 11; The Arthur, 1 Edw. Adm. 202; Radcliff v. United Ins. Co. 7 Johns. 47; Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185.

(b) Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185; British Instructions to their fleets on the West India station, 5th of January, 1804; Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804; Treaty between the United States and the Republic of Chili, May, 1832, art. 17, and between the United States and Venezuela, May, 1836, art. 20.

1 The property of a neutral is not liable to condemnation for a breach of blockade by a vessel in which he embarks, when entering or departing from port, unless he knew of the intention of the vessel to break it in going out. United States v. Guillem, 11 How. U. S. 47.

A neutral leaving a belligerent country, in which he was domiciled at the commencement of war, is entitled to the rights of a neutral as soon as he sails from the hostile port. Ibid. see ante, pp. [75, 78.]

*It has been a question in the courts of this country, *150 whether they ought to admit the law of the English prize courts, that sailing for a blockaded port, knowing it to be blockaded, was, in itself, an attempt, and an act sufficient to charge the party with a breach of the blockade, without reference to the distance between the port of departure and the port invested, or to the extent of the voyage performed when the vessel was arrested. (a) But in Yeaton v. Fry, (b) the Supreme Court of the United States coincided essentially with the doctrine of the English prize courts; for they held, that sailing from Tobago for Curaçoa, knowing the latter to be blockaded, was a breach of the blockade; and, according to the opinion of Mr. Justice Story, in the case of The Nereide, (c) the act of sailing with an intent to break a blockade is a sufficient breach to authorize confiscation. The offence continues, although at the moment of capture the vessel be, by stress of weather, driven in a direction from the port, for the hostile intention still remains unchanged. The distance or proximity of the two ports would cer tainly have an effect upon the equity of the application of the rule. A Dutch ordinance, in 1630, declared that vessels bound to the blockaded ports of Flanders were liable to confiscation, though found at a distance from them, unless they had voluntarily altered the voyage before coming in sight of the port; and Bynkershoek contends for the reasonableness of the order. (d) What that distance must be is not defined; and if the ports be not very wide apart, the act of sailing for the blockaded port may reasonably be deemed evidence of a breach of it, and an overt act of fraud upon the belligerent rights. But a relaxation of the rule has been required and granted in the case of distant voyages, *such *151 as those across the Atlantic; and the vessel is allowed to sail on a contingent destination for a blockaded port, subject to the duty of subsequent inquiry at suitable places. (a) The ordinance of Congress, of 1781, seems to have conceded this point to the extent of the English rule, for they made it lawful to take and con

(a) Fitzsimmons v. Newport Ins. Co. 4 Cranch, 185; Vos & Graves v. U. Ins. Co.

2 Johns. Cas. 180, 469.

(b) 5 Cranch, 335.

(c) 9 Cranch, 440, 446.

(d) Q. J. Pub. b. 1, c. 11; 3 Rob. Adm. 326, in notis.

(a) 5 Rob. Adm. 76; 6 Cranch, 29; Sperry v. The Delaware Ins. Co. 2 Wash. C. C. 243; Naylor o. Taylor, 9 Barn. & Cress. 718.

demn all vessels, of all nations, "destined to any such port," without saying anything of notice or proximity. (b)1

The consequence of a breach of blockade is the confiscation of the ship; and the cargo is always, primâ facie, implicated in the guilt of the owner or master of the ship; and it lays with them to remove the presumption that the vessel was going in for the benefit of the cargo, and with the direction of the owner. (c) The old dootrine was much more severe, and often inflicted, not merely a forfeiture of the property taken, but imprisonment, and other personal punishment; (d) but the modern and milder usage has confined the penalty to the confiscation of the ship and goods. If a ship has contracted guilt by a breach of blockade, the offence is not discharged until the end of the voyage. The penalty never travels on with the vessel further than to the end of the return voyage; and if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded

to the belligerent force to vindicate the law. (e) The pen*152 alty for a *breach of blockade is also held to be remitted, if the blockade has been raised before the capture. The delictum is completely done away when the blockade ceases. (a) There are other acts of illegal assistance afforded to a rying enemy's belligerent besides supplying him with contraband goods, despatches. and relieving his distress, under a blockade. Among these

Neutral car

(b) Journals of Congress, vol. vii. p. 186. The mere act of sailing to a blockaded port is not an offence, if there was no premeditated design of breaking the blockade, though it should be found to continue when the vessel arrives off the port. See the opinion of Sir Wm. Scott, in the case of The Shepherdess, 5 Rob. Adm. 264; and of Lord Tenterden, in Naylor v. Taylor, 9 Barn. & Cress. 718; and of Tindal Ch. J., in Medeiros v. Hill, 8 Bing. 231.

(c) The Mercurius, 1 Rob. Adm. 80; The Columbia, 1 Rob. Adm. 154; The Neptunus, 3 Rob. Adm. 173; The Alexander, 4 Rob. Adm. 93; The Exchange, 1 Edw. Adm. 39; U. S. v. Guillem, 11 How. U. S. 47, 62.

(d) Bynk. Q. J. Pub. b. 1, c. 11.

(e) The Welvaart Van Pillaw, 2 Rob. Adm. 128; The Juffrow Maria Schroeder, 3 Rob. Adm. 147. In cases of contraband, the return voyage has not usually been deemed connected with the outward, and the offence was deposited with the offending subject; but in distant voyages, with contraband and false papers, the rule is different; the fraud contaminates the return cargo, and subjects it to condemnation, as being one entire transaction. The Rosalie and Betty, 2 Rob. Adm. 343; The Nancy, 3 Rob. Adm. 122; Carrington v. The Merchants' Ins. Co. 8 Peters U. S. 495.

(a) The Lisette, 6 Rob. Adm. 387.

1 Brig Nayade, 1 Newberry Adm. 366.

acts, the conveyance of hostile despatches is the most injurious, and deemed to be of the most hostile and noxious character. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, and it may lead to a defeat of all the projects of the other belligerent in that theatre of the war. The appropriate remedy for this offence is the confiscation of the ship; and in doing so, the courts make no innovation on the ancient law, but they only apply established principles to new combinations of circumstances. There would be no penalty in the mere confiscation of the despatches. The proper and efficient remedy is the confiscation of the vehicle employed to carry them; and if any privity subsists between the owners of the cargo. and the master, they are involved by implication in his delinquency. If the cargo be the property of the proprietor of the ship, then, by the general rule, ob continentiam delicti, the cargo shares the same fate, and especially if there was an active interposition in the service of the enemy, concerted and continued in fraud. (b)

*

A distinction has been made between carrying despatches of the enemy between different parts of his dominions and carrying despatches of an ambassador from a neutral country *153 to his own sovereign. The effect of the former despatches is presumed to be hostile; but the neutral country has a right to preserve its relations with the enemy, and it does not necessarily follow that the communications are of a hostile nature.1 Ambassadors resident in a neutral country are favorite objects of the

(b) The Atalanta, 6 Rob. Adm. 440.

1 The affair of the Trent, West Indian mail, gave rise to an important question of maritime law deeply affecting the rights of neutrals. In November, 1861, Captain Wilkes, of the United States war-steamer San Jacinto, after firing a round shot and a shell, boarded the English mail-packet Trent, in Old Bahama Channel, on its passage from Havana to Southampton, and by force carried off Messrs. Mason and Slidell, two rebel ministers from the Confederate States, so called, who were taken on board as passengers bound for England. Mason and Slidell were conveyed to America and committed to prison; but after a formal requisition by Britain, declaring the capture to be illegal, they were surrendered by the Federal government, there having been no proceedings in reference to the case by a prize court. See Mr. Sumner's Speech in the United States Senate, January 9, 1862; Despatch of the French government to the Cabinet at Washington by M. Thouvenel, Minister of the Emperor for Foreign Affairs; the State-paper of Mr. Seward, United States Secretary of State; Lord Mackenzie, in his Roman Law, pp. 60 to 62,- all in reference to the case of the Trent.

protection of the law of nations, and their object is to preserve the relations of amity between the governments; and the presumption is, that the neutral state preserves its integrity, and is not concerned in any hostile design. (a)

In order to enforce the rights of belligerent nations against the Right of delinquencies of neutrals, and to ascertain the real as search at sea. well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty. (b) All writers upon the law of nations, and the highest authorities, acknowledge the right in

(a) The Caroline, 6 Rob. Adm. 461; Martens's Summary, b. 7, c. 13.

(b) The Le Louis, 2 Dod. Adm. 248; The Antelope, 10 Wheaton, 119. Yet the British Parliament, by statute, in August, 1839, in order more effectually to suppress the slave-trade, and especially as against Portugal, a power that had grossly violated her treaty with England on that subject, authorized the power of visitation and search in time of peace. The British government disclaim the right of search in time of peace, but they claim at all times the right of visit, in order to know whether a vessel, pretending, for instance, to be American, and hoisting the American flag, be really what she seems to be. Lord Aberdeen's Despatch of December, 1841, to the American Minister, Mr. Stevenson. But the government of the United States do not admit the distinction between the right of visitation and the right of search. They consider the difference to be one rather of definition than principle, and that it is not known to the law of nations. They will not admit the exercise of the claim of visit to be a right; while the British government concedes that if, in the exercise of the right of visit to ascertain the genuineness of the flag which a suspected vessel bears, any injury ensues, prompt reparation would be made. The mutual right of visitation and search in reference to the slave-trade has even been conceded by the European governments of Austria, France, Great Britain, Prussia, and Russia, who were parties to the Quintuple Treaty at London, of December, 1841. See Mr. Webster's Despatch, as American Secretary of State, to Mr. Everett, the American Minister at London, of March 28, 1843. This treaty was subsequently ratified by all the contracting parties except France, who remained bound only to a restrictive right of search under the conventions of 1831 and 1833. The inter-visitation of ships at sea is a branch of the law of self-defence, and is, in point of fact, practised by the public vessels of all nations, including those of the United States, when the piratical character of a vessel is suspected. The right of visit is conceded for the sole purpose of ascertaining the real national character of the vessel sailing under suspicious circumstances, and is wholly distinct from the right of search. It has been termed, by the Supreme Court of the United States, the right of approach for that purpose; (The Marianna Flora, 11 Wheaton, 1, 43;) and it is considered to be well warranted by the principles of public law and the usages of nations. Bynk. Q. J. Pub. lib. i. c. 114, S. P. See Wheaton's "Inquiry into the validity of the British claim to a right of visitation and search of American vessels suspected to be engaged in the African slave-trade." 1842.