officer to establish a blockade without instructions, if he be near enough to the government to enable him to receive them; but the better opinion seems to be, that the neutral cannot impeach the officer's authority so long as the act is not disavowed by his government. Halleck, Intern. Law and Laws of War, p. 537; and see The Circassian, 2 Wallace's U. S. Supr. Ct. Rep., 135; In re Rolla, 6 Robinson's Adm. Rep., 364; Cameron v. Kyte, 3 Knapp, P. C., 332.

4. Notice. A private neutral ship destined for a blockaded port cannot be seized, unless notice of the blockade has first been given to it, and indorsed upon its papers by a ship of the blockading squadron. The indorsement must state the day and the place of giving such notice. Treaty between France and Peru, Art. XXII., March 9, 1861, 8 De Clercq, 201. The same rule was adopted by Italy in the war of 1866, with Austria. Lushington's Naval Prize Law, Introd., p. ix., note.

The mere intention to enter a blockaded port, unconnected with any other fact, is not sufficient for the condemnation of a neutral vessel.

The treaty between the United States and Great Britain provides that every vessel may be turned away from every blockaded or besieged port or place, which shall have sailed for the same without knowledge of the blockade or siege; 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. And this treaty is conceived to be a correct exposition of the present law of nations upon this point. The intention must be manifested in such manner as to be equivalent to an attempt. Fitzsimmons v. Newport Ins. Co., 4 Cranch's U. S. Supr. Ct. Rep., 185. See also treaty between the United States and

In the absence of such a treaty, the courts do not require notice; see 5 Cranch's Rep., 335; 1 Kent's Commentaries, 150; 1 Robinson's Rep., 72, 130; 2 Id., 94; The Circassian, 2 Wallace's U. S. Supr. Ct. Rep., 135; Wheaton on Capture, 193-207; The Hallie Jackson, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 2, 48; The Empress, Id., 175; except where the vessel sails without a knowledge of the blockade; The Nayade, 1 Newberry's Adm. Rep., (U. S. Dist. Ct.,) 366.

In the case of the Louisa Agnes, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 107, it was held that the departure of a ship from the blockaded port, under the compulsory direction of a blockading cruiser, does not reintegrate her to the state of an innocent trader, and she may still be arrested for the offense of attempting to violate the blockade.

A notice of a blockade to the officials of a neutral government is

deemed a sufficient notice of it to the subjects of such government. 2 Ch. Robinson's Rep., 113; 1 Kent's Commentaries, 147; Wheaton on Capture, 193-199; The Hiawatha, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 1.

5. Efficiency. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast by the enemy. Congress of Paris, 1856.

Although this rule admits occasional absence of blockading vessels, from stress of weather or other contingencies, yet the law demands the allotment and stationing of that amount of force for the service which shall render it physically hazardous for other craft to evade the blockade. 1 Kent's Commentaries, 144–161; 3 Phillimore's Intern. Law, 287; Woolsey's International Law, § 186; 1 Spink, Prize Cases, 111, 171; The Sarah Starr, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 69.

In the case of an inland port, a blockade may be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent vessels, and capture offending vessels attempting to enter. The Circassian, 2 Wallace's U. S. Supr. Ct. Rep., 135.

A blockade ceases whenever the vessels which maintain it are withdrawn, whether with or without compulsion from the enemy, so that the undertaking is for the time, at least, abandoned. Woolsey's International Law, § 187.

6. Violation. Unless the blockade be directed against ingress or egress alone, a vessel violates the law of blockade, by any positive act towards entering or quitting, or by showing a clear and speedy intention to enter or leave a blockaded port, except in distress. The Coosa, 1 Newberry's Admiralty Rep., (U. S. Dist. Ct.,) 393; 1 Ch. Robinson's Rep., 86, 151, 171; The Hiawatha, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. The Empress, Id., p. 175; Halleck's Intern. Law and Laws of War, ch. 23, § 23. A remote intention to violate a legal blockade, entertained at the outset of the voyage, is not sufficient cause to authorize the seizure of a vessel. Woolsey's Intern. Law, § 188.

1;

However earnestly the criminal intent may have been entertained and proceeded upon for a time, if it be really given up before the arrest, the property is not liable to confiscation because of the previous wrongful purpose. 1 Kent's Commentaries, 147; The John Gilpin, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 291.

Persisting in the intention to enter a blockaded port, after warning by the blockading force, is not an attempt to enter, nor a breach of the blockade, unless connected with some act on the part of the vessel.

Under the treaty between the United States and Great Britain, a second attempt to enter must be made after notification of the blockade. Lingering about the place, as if watching for an opportunity to sail into it, or the single circumstance of 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. But whether these circumstances or others may or may not amount to evidence of the offense, the offense itself is, attempting again to enter; and unless, "after notice, she shall again attempt to enter," the two nations expressly stipulated that she shall not be detained. Fitzsimmons v. Newport Ins. Co., 4 Cranch's U. S. Supr. Ct. Rep., 185.

In the absence of such a treaty, however, where a ship knew of the blockade at the time of sailing, her approaching the blockaded port for the purpose of inquiring there, is, in itself, a consummation of the offense; and amounts to an actual breach. The Cheshire, 3 Wallace's U. S. Supr. Ct. Rep., 231; The Delta, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 654. The inquiry cannot be lawfully made at the blockaded port, if it can be made elsewhere. The Empress, Id., p. 175.

A clear necessity, however,-e. g., for repairs, supplies or shelter,— will justify an entrance into a blockaded port; but such allegations are regarded with distrust, and satisfactory evidence is required of the reality and urgency of the necessity. The Major Barbour, Id., p. 167; The Sunbeam, Id., p. 316; The Diana, 7 Wallace's U. S. Supr. Ct. Rep., 354.

7. Penalty. The penalty for a violation of blockade is confiscation, and attaches to both ship and cargo: which penalty continues upon a vessel until the end of her return voyage. Woolsey's International Law, § 188; The Wren, 6 Wallace's U. S. Supr. Ct. Rep., 582.

ARTICLE 893. Prizes must be brought in for adjudication.

894. Possession necessary to jurisdiction.

895. Adjudication.

896. Title not divested until judgment.

897. Previous liens.

898. Requisites of judgment condemning prize.

899. Capture by unlawful means.

900. Jurisdiction of remedy against wrongdoer, in

case of illegal capture.

901. Trial of contraband persons.

902. Uniform procedure.

Prizes must be brought in for adjudication. 893. All property captured' by a belligerent at sea

3

or afloat on navigable waters, except public armed ships of the hostile nation, and their contents, and except in the case provided for by article 876, must be brought into a port within the territory or the lines of military occupation of the belligerent or of its ally,' and submitted with the proofs sustaining the right of capture, to a prize court of the captor."

This Article, in connection with others, will extend the requirement of a judicial determination of the lawfulness of a capture, to the case of contraband in an unarmed hostile vessel, and even to public property of the hostile nation, on such a vessel.

1 The qualification restricting the rule to captures made wholly or partly by naval forces, it is proposed to omit. The necessity for adjudication rests on the propriety of submitting the title of water-borne property to judicial inquiry. The kind of force by which the capture is made is not necessarily material.

In the case of the United States v. Bales of Cotton, (1 Woolworth's U. S. Circ. Ct. Rep., 236, 257,) it was held that vessels which are not armed, and are not commanded by government officers, but are used merely as transports for troops, are not war vessels, and do not bring within the prize jurisdiction a capture on land. Also that conjunct captures on land of enemy's property by both army and navy are brought within the prize jurisdiction only by statute.

The propriety of proceeding in a prize court, in case of a recapture was established in the case of the schooner Adeline, 9 Cranch's U. S. Supr. Ct. Rep., 244, 286; and Story, J., in delivering the opinion of the court, intimates that such proceeding is necessary, but the question of necessity was not directly before the court.

The provisions of this Book will require it where a question of salvage arises, not otherwise.

3 In Brown v. United States, 8 Cranch's Rep., 139, pine timber, part of a ship's cargo, which had been unladen and put into the water in a shallow creek, where at low tide the ends of the logs rested in the mud, was treated as property found on land.

4 Mr. Seward, in his letter in the Trent case, recognizes an exception when it is impossible to bring in the prize, from circumstances beyond the control of the captor, and without his fault.

5 Possession in a neutral port is enough, by the existing law. Hudson v. Guesteer, 4 Cranch's U. S. Supr. Ct. Rep., 293. But the provisions proposed in Division V., concerning NEUTRALS, make this change proper.

6 The courts of a neutral nation have no jurisdiction of a capture by a belligerent, except in case of a violation of its neutrality. The Divina Pastora, 4 Wheaton's U. S. Supr. Ct. Rep., 52.

Possession necessary to jurisdiction.

894. A prize court has jurisdiction only so long as the nation making the capture, or its ally, has possession of the prize, or its proceeds.

Hudson v. Guesteer, 4 Cranch's U. S. Supr. Ct. Rep., 293; The Invincible, 2 Gallison's U. S. Circ. Ct. Rep., 29. Compare Maissonaire v. Keating, 2 Id., 325; The Arabella, 2 Id., 368.

Adjudication.

895. If, upon examination, the capture is adjudged lawful, the property may be disposed of according to the law of the captor's nation. If adjudged unlawful, either in respect to the cause or the mode of capture, or the authority of the captor, the property must be restored to its owner.

Three principal questions may be expected to arise under the provisions, subjecting only those things which are contraband of war, or engaged in illegal traffic, to capture at sea, and by public vessels alone:

1. Was the subject of capture lawful prize as contraband, or as engaged in interdicted traffic?

2. Was the captor impressed with the military character of a belligerent?

3. Were the place and mode of capture and detention such as to render them legal?

All of these seem to be proper questions for adjudication, under such a rule as here proposed.

By the settled rule in England and America, the owner of captured property cannot contest the capture on the ground of a want of authority on the part of the persons who made the capture. But this rule seems to be founded on the right of government to adopt a capture by a noncommissioned vessel; and as this right may be renounced, the legality of the capture may properly be contested in this respect, as in others.

Title not divested until judgment.

896. The title to property mentioned in article 893, is not affected by capture, but only by the judgment of a court of prize having jurisdiction under the provisions of this Chapter.

In Josefa Segunda, (5 Wheaton's U. S. Supr. Ct. Rep., 338,) it was held that where the capture is made by a regularly commissioned captor, he acquires a title to the captured property, which can only be divested by recapture, or by the sentence of a competent prize court.