The Laws Of War, Affecting Commerce And Shipping Part 10

"That a vessel hired, by the enemy, for the conveyance of military persons is to be considered _as a transport_, subject to condemnation, has been in a recent case, held by this Court, and on other occasions.[174] What is the number of military persons that shall const.i.tute such a case it may be difficult to define. In the former cases there were many, in the present they are fewer in number; number alone is an insignificant circ.u.mstance in the considerations on which the principles of law on this subject are built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To send out _one veteran general_ of France to take command of the forces at Batavia might be a much more noxious act than the conveyance of a whole regiment. The consequences of such a.s.sistance are greater, and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three,[175] and there are besides two other persons who were going to be employed in civil capacities in the Government of Batavia. *** It appears to me, _on principle_, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, and at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with hostile operations.[176] The fact of the vessel having been pressed into the enemy's service does not exempt her. The master cannot aver that he was an involuntary agent."[177]

[Sidenote: Neutral Ships Carrying Enemy's Despatches.]

Carrying the _Despatches of the Enemy_ is also a ground of condemnation.

"In the transmission of Despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent, in the world. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character--as an act of the most hostile nature. The offence of _fraudulently_ carrying despatches in the service of the enemy being greater than other contraband, some other penalty has to be affixed. The confiscation of the noxious article would be ridiculous when applied to _Despatches_. There would be _no_ freight dependent on their transportation. The _vehicle_ (_i.e._ the ship) in which they are carried must, therefore, be forfeited."[178]

[Sidenote: Amba.s.sadors excepted.]

The Despatches of an Amba.s.sador or other Public Minister of the Enemy, resident in a neutral country, are an exception to this rule, being the despatches of persons who are in a peculiar manner the favourite object of the Law of Nations, residing in the neutral country for the purpose of preserving peace and the relations of amity between that state and their own government.

The amba.s.sador of the enemy may be stopped on his pa.s.sage, but when he has arrived in the neutral country, he becomes a sort of _middleman_, and is ent.i.tled to peculiar privileges.[179]

[Sidenote: Penalty for Contraband Trade.]

Under the present Law of Nations, a Contraband Cargo cannot affect the ship; the carrying of contraband articles is attended only with 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 some malignant and aggravating circ.u.mstances.[180]

[Sidenote: Additional Penalties.]

The aggravation of fraud justifies additional Penalties; thus, the carriage of contraband with a false destination, will work a condemnation of the ship as well as the cargo; the false destination being intended to defeat the right of pre-emption.[181] Generally, _false_ papers will extend the taint of contraband to the vessel.

It is also an established rule, that the transfer of contraband by a neutral, from one port of a country to another, where it is required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself.[182]

[Sidenote: Return Voyage Free.]

Generally, the proceeds of the Return Voyage cannot be taken. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken _in delicto_, and in actual prosecution of such a voyage, the penalty is not now generally held to attach.[183]

SECTION III.

_Blockades. Right of Search. Convoys_.

[Sidenote: Blockades.]

We now pa.s.s on to the subject of Blockade, which is the next exception to the general freedom of neutral commerce in time of war.

A blockade is a high act of Sovran authority; it cannot be a.s.sumed or exercised by a commander, without special authority, provided his Government is sufficiently near at hand to superintend and direct the course of operations; but a commander on a distant station is supposed to carry with him such a portion of the Sovran authority as may enable him to act with energy against the commerce of the enemy, as against the enemy himself.[184]

Again, referring to Sir Wm. Scott's celebrated judgments, we find him saying,

"That to const.i.tute a violation of a state of blockade, three things must be proved: first, the existence of the blockade; secondly, the knowledge of it, in the party supposed to have offended; and thirdly, some act of violation, either by going in, or coming out with a cargo, laden after the commencement of the blockade."

[Sidenote: First Rule of Blockade.]

I. There is no rule of law more established than this; that the Breach of a Blockade subjects the property so employed to confiscation. Every man knows it; the subjects of all states know it.

A lawful maritime blockade requires the actual presence of a sufficient force stationed at the entrance of the port, sufficiently near to prevent communication.

The blockade is to be considered legally existing, although the winds may occasionally blow off the blockading squadron. It is an accidental change which must take place in every blockade; but the blockade is not therefore suspended.

This axiom is laid down in all books of authority; and the law considers an attempt to take advantage of such an accidental removal as an attempt to break the blockade, and a mere fraud.[185]

When a blockading squadron is driven off by a superior force, the blockade is effectually raised, and it must be renewed by fresh notification, before foreign nations can be affected by an obligation to observe it as a blockade. The mere appearance of another squadron will not renew it, but it must be restored by the measures required for the original imposition of a blockade.[186]

[Sidenote: Second Rule of Blockade.]

It is necessary that the evidence of a blockade should be clear and decisive. A blockade may exist without a public declaration; although a declaration, unsupported by fact, will not be sufficient to establish it. In the War of 1798, the West India Islands were declared under blockade by Admiral Jervis; but the Lords of the Supreme Court held, that as the fact did not support the declaration, a blockade could not be deemed legally to exist. But the fact, on the contrary, duly notified on the spot, is of itself sufficient; for public notifications between governments are meant for the information of individuals; but if the individual is _personally_ informed, that purpose is better obtained than by a public declaration.[187]

Where the vessel sails from a country lying near enough to the blockaded port to have constant information of the blockade, no notice is necessary of its continuance or relaxation; but when the country is at a distance beyond constant information, they may lawfully send their vessels on conjecture that the blockade is broken up, after it has existed a long time.[188] And this is important, as it must be remembered that even the _intention_ to evade blockade is a fraudulent breach of it, and sailing towards the port is an _overt_ act of that intent.[189]

There are two kinds of Blockade. 1. Simple Blockade, _i.e._ Blockade in Fact; and 2nd., Blockade in Fact, accompanied by a Notification.

The first expires by the breaking up _intentionally_ of the blockading squadron. The second, _prima facie_, does not expire until the repeal of the notification, but it is the duty of the belligerent country directly the blockade ceases, _de facto_, to revoke its proclamation.

And it would appear that a notified blockade would only expire, in fact, after some unnecessary and long neglect to publish this revocation; otherwise neutral nations are bound until such publication.[190]

It has from time to time been stipulated, in treaties between belligerent and neutral countries, (as in the case of the Treaty between Great Britain and the United States, of 1794,) that vessels of the neutral country should not be considered as having notice of a blockade, until they have been duly and respectfully warned off; and it would only be on a second attempt to enter port that they would be liable to be seized. Under such a treaty a neutral vessel might lawfully sail for a blockaded port, knowing it to be blockaded.[191]

[Sidenote: Third Rule of Blockade.]

An act of Violation is essential to a Breach of Blockade; such as, either going in or coming out of the port with a cargo, laden after the commencement of the blockade: or being found so near to the blockaded port as to show, beyond a doubt, that the vessel was endeavouring to run into it: or where the intention is expressly avowed by the papers found on board.[192]

The time of shipment is very material; for although it may be hard to refuse a Neutral, liberty to retire with a cargo already laden, and by that act already become neutral property,--yet, after the commencement of a blockade, a neutral cannot be allowed to interpose in any way to a.s.sist the exportation of the property of the enemy. After the commencement of a blockade, a Neutral is no longer at liberty to make any purchase in that port.[193]

A _Maritime_ Blockade is not in law violated by bringing or sending goods to the port through the internal ca.n.a.l navigation or land carriage of the country; and thus such goods are not liable to confiscation on ground of the blockade.

[Sidenote: Right of Search.]

On the great question of the Right of Search, the International Law has been summed up by Lord Stowell, in the case of the _Maria_, where the exercise of the right was attempted to be resisted, by the interposition of a convoy of Swedish ships of war.[194]

First, the right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is the incontestible right of the lawfully commissioned cruizers of a belligerent nation.

Secondly, that the authority of the Sovran of the neutral country, being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commissioned belligerent cruizer. It cannot be maintained, that if a Swedish commissioned cruizer, during the wars of his own country, has a right, by the Laws of Nations, to visit and examine neutral ships, the King of England, (being Neutral to Sweden,) is authorized by law to obstruct the exercise of that right with respect to the merchants' ships of his country.

Thirdly, that the penalty for the violent contravention of this right, is the confiscation of the property withheld from visitation and search.

The judgment of condemnation, p.r.o.nounced in this case, was followed by the Treaty of Armed Neutrality entered into by the Baltic Powers to resist the Right of Search, in 1800, which league was dissolved by the death of the Emperor Paul, and the points in controversy between those Powers and Great Britain were finally adjusted by the Convention of 5th of June, 1805.[195]

[Sidenote: Convoys.]

It now remains to say a few words on the subject of Convoy. Convoy is a ship or ships of war appointed by the Government, or by the Commander-in-Chief on a particular station, for the guard of merchant vessels bound to their destination. A warranty that the vessel shall sail with convoy, is very common in Policies of Insurance, and if not complied with, the Insurance becomes absolutely void.

This warranty to sail with convoy, does not mean that the vessel shall depart with convoy immediately from the lading port, but only from the place of rendezvous appointed for vessels bound from that port, and must be strictly and impartially maintained by force, to the uniform universal exclusion of all vessels not privileged by law.[196]

From many ports, and among others from the port of London, no convoy ever sails. It has therefore been held sufficient for a vessel bound from London to sail with convoy from the _Downs_, and even from _Spithead_, when there was no convoy appointed from the _Downs_.

Neither does it require the vessel to sail with convoy bound to the precise place of her destination; but if the vessel sail with the only convoy appointed for vessels going to her place of destination, it is sufficient. It sometimes happens that the force first appointed, is to accompany the ships only for a part of their voyage, and to be succeeded by another; at other times a small force is detached from the main body to bring up to a particular point; if a vessel sail under the protection of a vessel thus appointed or detached, the warranty is satisfied.