710 



PRIZE. 



of military equipment of an enemy, are deemed 

 contraband. So provisions in general are not 

 deemed contraband (although there has been much 

 conflicting discussion on the subject), being of pro- 

 miscuous use; but provisions destined to the mili- 

 tary or naval use of the enemy, or sent to his ports 

 of naval and military equipment, are deemed con- 

 traband. In modern times, by the conventional law 

 between nations, provisions have been often ex- 

 cepted from the list of contraband, and are sub- 

 jected to the right of pre-emption. 4. Another just 

 cause of the confiscation of neutral property is the 

 breach of blockade. Every belligerent has a right 

 to invest the ports of his enemy, to cut off his sup- 

 plies, and to endeavour thus to compel him to a 

 surrender. And a neutral can have no right to 

 interpose, and relieve the besieged from the pres- 

 sure of superior force. It is therefore a general 

 rule, that a violation of a blockade, by any neutral, 

 subjects his property engaged in it to capture and 

 condemnation. But very important questions grow 

 out of this subject, which have been the occasion 

 of many heated discussions between neutral nations 

 and belligerents. What constitutes a blockade in 

 the sense of the law of nations, has been a dis- 

 puted question. The principles now established on 

 this point seem to be, that a mere paper blockade 

 (as it is sometimes called) that is, a blockade by 

 proclamation, without any investing force is not a 

 legal blockade : there must be an actual naval or 

 military force, competent for its object on the coast 

 and in the vicinity. The port must be actually, and 

 not nominally, invested. If the blockading squad- 

 ron be withdrawn, or be dispersed by a storm, or 

 voluntarily relax the siege, the blockade is, for the 

 time, intermitted ; and an entry by a neutral, at 

 such a time, ought not to involve any penalty. 

 France and England, during the late continental 

 war, attempted the former by the Berlin and Mi- 

 lan decrees, the latter by orders in council to de- 

 clare whole countries in a state of blockade, and to 

 interdict all traffic with them by neutral nations. 

 But neutral nations resisted these pretensions, with 

 a most decided expression of public opinion, as 

 gross usurpations ; and the persistence of Great 

 Britain in enforcing these orders of council, was 

 one of the main causes of the late war between her 

 and the United States of America. 



V. Another inquiry is, What constitutes a breach 

 of blockade on the part of a neutral? A blockade 

 may commence, and be made known by proclama- 

 tion or notification of the belligerent government 

 to neutral nations ; or it may commence de facto, 

 without any such formal notice. In order to affect 

 a neutral 1 with the consequences of a breach of 

 blockade, it should be duly notified to him. Where 

 a blockade is merely de facto, the neutral is not in 

 default by approaching the port, if he has no know- 

 ledge of the blockade, or if, knowing it, he comes 

 bona fide towards the port for the purpose, not of 

 entering in breach of the blockade, but merely of 

 ascertaining, in the neighbourhood, if it still exists. 

 But if he is warned off by the blockading squadron, 

 and afterwards attempts to enter the port, that is a 

 breach of blockade. But a mere persistence in this 

 intention, without any act done after such warning 

 off, is not of itself a breach of blockade. There 

 must be some overt act, such as sailing again 

 towards the port, or hovering near it, with an in- 

 tent to take advantage of some opportunity to enter, 

 to constitute the offence. But where a blockade is 

 known to the neutral, the sailing from the neutral 

 port, with an intent to break it, is of itself a breach 

 of the blockade. In such a case, nothing will save 

 the neutral from the penalty of confiscation, but the 



fact, that the blockade, though unknown to him, 

 was, at the time of his sailing, withdrawn ; for both 

 intent and breach must concur. A blockade by 

 proclamation or notification may be presumed to be 

 intended to endure ; and, therefore, notice of such 

 a proclamation is more binding upon the neutral 

 than a mere blockade de facto, whose continuance 

 may well be deemed uncertain, temporary, and liable 

 to sudden changes of intention. In respect to cases 

 of contraband and breach of blockade, in order to 

 justify the capture and condemnation of the neutral 

 vessel or cargo, or either engaged therein, it is in- 

 dispensable that they should be caught in delicto. 

 The penalty, therefore, attaches (generally speak- 

 ing), only while the vessel is engaged in the same 

 voyage. If that is terminated, the offence is depo- 

 sited with it, and ended. The rule, however, has 

 been held in a somewhat larger extent by Great 

 Britain, and probably will be adopted by other na- 

 tions. In cases of contraband, if the vessel has 

 sailed under false papers and disguises, the penalty 

 is inflicted on the return voyage. In cases of breach 

 of blockade, the penalty, if not inflicted before, is 

 applied in the next succeeding voyage, but not be- 

 yond that. There are other acts which are deemed 

 violations of the duty of neutrals, and subject their 

 property to condemnation. All these acts may be 

 resolved into one general proposition, that if the act 

 be in aid of the objects or interests of the enemy, 

 or if they amount to an actual interposition in the 

 war, they are deemed hostile. Thus, if the neutral 

 is guilty of any fraudulent conduct to defeat belli- 

 gerent rights ; or if he, directly or indirectly, as- 

 sists in carrying on the war, prejudicing the rights 

 of the other party, be is treated, so far, as a party. 

 Hence, if he is guilty of a spoliation of the ship's 

 papers, or a fraudulent suppression of enemy inter- 

 ests ; if he carries enemy goods tinder false papers; 

 if he carries despatches, or military passengers for 

 the enemy ; if he engages in the transport service 

 of the enemy ; if he sails under the special license 

 and pass of the enemy; these, and other acts of a 

 like nature, will subject his property thus employed 

 to confiscation, and he will be thus far held an 

 enemy. And if the neutral mixes up and covers 

 his own property designedly with that of the enemy, 

 the whole will be condemnable. A court of prize 

 will not assist him to unravel the transaction, but 

 will deem the whole forfeited by his own miscon- 

 duct. 



VI. The question has often been discussed by 

 publicists, how far a neutral has a right to carry 

 enemy's goods, and in such case whether the neu- 

 trality of the ship gives a neutral character to the 

 cargo ; or, in other words, whether free ships make 

 free goods, and enemy ships make enemy goods. 

 There have been many struggles, in modern times, 

 on the part of neutrals, to incorporate into the law 

 of nations the principle, that free ships shall make 

 free goods. But they have wholly failed of their 

 purpose ; and the right, whenever it exists at all, 

 is the result of treaty stipulations, and binds those 

 nations only which are parties to them. The gen- 

 eral principle now acknowledged in the practice of 

 nations is, that enemy property found on board of 

 neutral ships is liable to capture and condemnation. 

 The neutral flag does not protect it. And, on the 

 other hand, that neutral property found on board 

 of enemy ships is not liable to condemnation ; but 

 the neutral is entitled to restitution. In all these 

 cases, the belligerent is understood, upon the cap- 

 ture, to succeed to the rights of his enemy, and no 

 more, unless there has been some misconduct on the 

 part of the neutral, to make him forfeit the protec- 

 tion of the law of nations. If enemy property is 



