ARISING UNDER BLOCKADE OF BALTIC PORTS 1854. 487

the most liberal interpretation should be given to the terms used in declaring a relaxation.of the rights of war between belligerents.

Though the grant of licenses has never been held to vitiate a blockade, yet semble that such an indiscriminate grant, as might throw a trade into the hands of the power imposing the blockade, would be unjust to neutrals, and might invalidate such blockade.

Unless the blockade be so notorious, that knowledge thereof must have reached those trading to the port, individual warning off is requisite.

A blockade may become so notorious, that knowledge thereof must be presumed, or, at least, so far as to throw the onus of proving ignorance upon the neutral.

The practice of prize courts has been to always receive every species of evidence, without being restrained by the municipal law of evidence.

When complete notoriety once exists, all vessels seeking to trade with the blockaded port, must be presumed to be cognizant of the blockade, and warning off is no longer necessary.

Treaties may be merely declaratory of the law of nations, as understood by the contracting parties. A treaty, conferring on one neutral a right to trade with blockaded ports denied to other neutrals, would be inconsistent with the law of nations.

Restrictions, as to blockades, are only justified by necessity, and that necessity applies to all neutrals equally. A belligerent cannot allow to one neutral a privilege to import contraband to the enemy, while he denies it to another neutral.

A general right to go to blockaded ports would be repugnant to the rights of other neutral nations.

488

EARLIER ENGLISH BLOCKADE CASES,

It is only under special circumstances allowable to make inquiries of the blockading force. The court requires the clearest and most satisfactory proof of special ignorance of the blockade. The Union, 2 Spinks, 161; vide also The Franciska, Spinks' Prize Causes, 111.

The earlier English authorities often cited on the subject of blockade, are the Mercurius (1 Ch. Rob. 80), in which it was decided that a violation of blockade by the master affected the ship, but not the cargo, unless one person was the owner of both ship and cargo, or unless the owner of cargo were cognizant of an intended violation, in which case cargo and ship were alike affected.

Warning on the spot is a sufficient notice of a de facto blockade.

Restitution, on the same or different evidence, will not legally bar a second seizure; but a second seizor may be subjected to costs and damages.

The Frederick Molke (ibid. 86), decides that sailing with cargo from a blockaded port, primú facie subjects the vessel to seizure and condemnation; and, if the cargo were laden after the blockade commenced, then cargo, as well as vessel, is liable.

The Ringende Jacob (ibid. 89), that unwrought iron is an article promiscui usûs; but whether bar iron is unwrought is not clear. There is not an article in nature that comes more exactly under the description of an article of promiscuous use than iron; it is a commodity subservient to the most infinite variety of human uses (p. 92), but it may become a hostile article, and so contraband. If the vessel were going to a port of naval equipment, the article might be applied as a naval store, and so become prohibited as contraband. But that

DECIDED BY SIR WILLIAM SCOTT.

489

would be reaching a decision, by inference that iron was "an article absolutely hostile." This position the court declined to assume, and added: "Nor can I agree to another argument that has been advanced, that, because unwrought iron is excepted in some treaties as not contraband, therefore, where no exception is expressed, it is to be considered as contraband. Enumeration takes place in treaties to prevent misunderstanding; it distinguishes what shall be contraband from what shall not; but the exception of particular articles is not to be there understood in the strict sense in which it is sometimes said, "exceptio confirmat legem."

This ship was under Swedish colors, carrying iron claimed for Russian merchants, and hemp claimed for a Danish merchant, from Riga to Holland; and it was urged that as the cargo was of a contraband nature, and the ship was employed to carry such cargo, the ship should be condemned; and the court said: "That there are some contraband articles cannot be denied. Hemp, the produce of Russia, exported by a Danish merchant, would be confiscable even under the relaxation, which allows neutrals to export that article only where it is of the growth of their own country; but, to a Dane, hemp is expressly enumerated among the articles of contraband in the Danish treaty; and to say that a Dane might traffic in foreign hemp, whilst he is forbidden to export his own, would be to put a construction on that treaty perfectly nugatory. The hemp must certainly be condemned; but I do not know that, under the present practice of the law of nations, a contraband cargo can affect the ship.

"By the ancient law of Europe, such a consequence

would have ensued; nor can it be said that such a penalty was unjust, or not supported by the analogies of law, for the owner of the ship has engaged it in an unlawful commerce. But in the modern practice of the courts of Admiralty of this country, and, I believe, of other nations also, a milder rule has been adopted, and the carrying of contraband articles is attended only with the loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with other malignant and aggravating circumstances."

The decision was reserved, however, for further inquiry and information, from Dec. 11, 1798, to Feb. 22, 1799, when the ship was condemned, the master being presumed to have received notice of the blockade.

The Betsey (ibid. 93), determined that a commander's declaration of blockade, without actual investment, will not establish a blockade. On distant stations, however, a delegated authority may be presumed to have been conferred upon such commander by his government, and this, upon authority and principle, may be accepted, at the present day, as the better doctrine.

The Henrick and Maria (ibid. 146), that "a declaration of a blockade is a high act of sovereignty, and a commander of a king's ship is not to extend it." Aliter, if he have either express or implied delegated authority.

In the Vrouw Judith (ibid. 152), Sir W. Scott said: "A blockade is just as much violated by a vessel passing outwards as inwards. A blockade is a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the

entire commerce of that place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is, that having already taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule, which this court means to apply, that a neutral ship departing can only take a cargo, bond fide purchased and delivered before the commencement of the blockade. If she afterwards takes on board a cargo, it is a fraudulent act, and a violation of the blockade.

"It is certainly necessary that a blockade should be intimated to neutral merchants in some way or other. It may be notified in a public and solemn manner by declaration to foreign governments, and this mode would always be most desirable, although it is sometimes omitted in practice. But it may commence also de facto by a blockading force, giving notice on the spot to those who come from a distance, and who may, therefore, be ignorant of the fact. Vessels going in are, in that case, entitled to a notice before they can be justly liable to the consequences of breaking a blockade. But I take it to be quite otherwise with vessels coming out of the port, which is the object of the blockade; there no notice is necessary after the blockade has existed de facto for any length of time; the continued fact is itself sufficient notice. It is impossible for those within to be ignorant of the forcible suspension of their commerce. The notoriety of the thing supersedes the necessity of particular notice to each ship."

In the Columbia (ibid. 154), Sir Wm. Scott said: "There is no rule of the law of nations more established than this: that the breach of a blockade subjects the