_Blockades. Right of Search. Convoys_.
[Sidenote: Blockades.]
We now pass 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 assumed 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 constitute 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
assist 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 canal 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, pronounced 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.
But this warranty requires not only that the vessel shall sail under
the protection of the convoy, but also that she shall continue during
its course under the same protection, unless prevented from so doing
by tempest or other unavoidable accident, in which case, the master
and owners will be excused, if the master does all that is in his
power to keep with the convoy.
The merchantman must, before sailing, obtain or endeavour to obtain,
the sailing orders issued by the convoying squadron. The value of a
convoy appointed by Government arises in a great degree from its
taking the ships under control, as well as under protection; but this
control cannot be exercised except by means of sailing orders.
Otherwise, the master could not learn the rendezvous in case of
dispersion by a storm, or obey signals in case of attack.
The obligation to sail with convoy does not depend merely on special
agreement; but, by act of parliament, a merchant cannot sail without a
convoy, on a _foreign_ voyage, unless previously licensed to do
so.[197]