$188. breach of block A vessel violates the law of blockade by some positive act of entering or quitting, or by showing a clear and 4. Penalty for speedy intention to enter a blockaded port. A ade. remote intention entertained at the outset of the voyage, for instance, might be abandoned, and the seizure of such a vessel on the high seas would be unlawful. It must be at or near the harbor, to be liable to penalty. The penalty is confiscation, and it falls first on the ship as the immediate agent in the crime. The cargo shares the guilt, unless the owners can remove it by direct evidence. The presumption is, that they knew the destination of the vessel, for the voyage was undertaken on account of the freight. If ship and cargo are owned by the same persons, the cargo is confiscated of course. The penalty for a breach of blockade is held to continue upon a vessel until the end of her return voyage, Duration of liabiland to have ceased, if she were captured after the ity to penalty. actual discontinuance of the blockade. The reasons for the former rule may be that the voyage out and back, is fairly looked on as one transaction, the return freight being the motive in part for the act, and that time ought to be allowed to the blockading vessels to pursue and capture the offender. The reason for the latter is, that the occasion for inflicting the penalty ceased with the blockade. (Note 27.) Besides this penalty on cargo and vessel, the older textwriters teach that punishment may be visited upon the direct authors of a breach of blockade.* Even de Martens (§ 320), declares that corporal pains, by the positive law of nations and by natural justice, may be meted out to those who are guilty of such breach. But the custom of nations, if it ever allowed of such severities, has long ceased to sanction them. Grotius, III. 1, § 5, 3; Bynkersh. Quæst. J. P. I. 11; Vattel, III. 7, § 117. 5. Attempts to stretch the doc irine of blockade, $ 189. The natural inclination of belligerents to stretch their rights at sea at the expense of neutrals, appears in attempts to enlarge the extent of blockades over a tract of coast without a sufficient force; and at no time so much as at the end of the eighteenth and beginning of the nineteenth century. In the war of France and Spain with Great Britain during the American revolution, those nations extended the notion of blockade unduly,* which led to the declaration of Russia in 1780,-afterwards made one of the principles of both the armed neutralities,—that the blockade of a port can exist only, "where, through the arrangements of the power which attacks a port by means of vessels stationed there and sufficiently near, there is an evident danger in entering." The far more important aggressions on neutral rights between the years 1806 and 1812, are too closely connected with the affairs of our own country to be passed over in silence. These aggressions, under the continental system, as it was called, may be traced back to measures adopted towards the close of the last century, the object of which was to cripple the commerce of England. Thus, in 1796, the ports of the ecclesiastical state and Genoa, and in 1801, those of Naples and Portugal were closed to British vessels, by special treaties with the French republic. Prussian decrees. In 1806, Prussia, then in vassalage to Napoleon, but at peace with England, and being now in temporary possession of Hanover, issued a decree announcing that the ports and rivers of the North Sea were closed to English shipping, as they had been during the French occupation of Hanover. By way of retaliation, the British government gave notice to neutral powers, that the coast from the Elbe to Brest was placed in a state of blockade, of which coast the portion from Ostend to the Seine was to be considered as under 'he most rigorous blockade, while the remainder was open to * Klüber, § 303. neutral vessels not laden with enemies' goods, nor with goods contraband of war, nor guilty of a previous violation of blockade, nor sent from the ports of enemies of the British govern ment. Berlin decree. This measure led to the Berlin decree of Bonaparte, bearing the date of November 21, 1806. In this decree, issued from the capital of subjugated Prussia, after reciting the infractions of international law with which England was chargeable, the Emperor declares the British islands to be under blockade, and all commerce with them to be forbidden, English manufactures to be lawful prize, and vessels from ports of England or her colonies to be excluded from all ports, and to be liable to confiscation, if they should contravene the edict by false papers. The Berlin decree "rendered every neutral vessel going from English ports with cargoes of English mer- First orders in chandise, or of English origin, lawfully seizable council. by French armed vessels.* The British government was not slow in its retaliation. By an order of council, dated Jan. 7, 1807, it was declared "that no vessel should be permitted to sail from one port to another, both of which ports should belong to or be in the possession of France or her allies, or should be so far under their control, that British vessels might not trade thereat." And by a second order of council, dated Nov. 11, 1807, it was declared that, as the previous Second orders in order had not induced the enemy to alter his measures, all places of France, her allies and their colonies, as also of states at peace with Great Britain and yet excluding her flag, should be under the same restrictions as to commerce, as if they were blockaded by British forces. All commerce in the productions of such states was pronounced illegal, and all vessels so engaged, with their cargoes, if taken, were to be adjudged lawful prize. But neutrals might trade with the colonies, or even with the ports of states thus under the ban, for goods to be consumed by themselves, provided they either council. * Words of M. Champagny, French minister of foreign relations, Oct. 7, 1807. started from or entered into a British port, or sailed directly from the enemies' colonies to a port of their own state. Moreover, as certain neutrals had obtained from the enemy "certi ficates of origin" so called, to the effect that the cargoes of their vessels were not of British manufacture, it was ordered that vessels, carrying such certificates, together with the part of the cargo covered by them, should be confiscated, as the prize of the captor. A supplement to this order declared that ships sold by the enemy to a neutral would be deemed illegally sold, and be considered lawful prize, while another supplement regulated the manner in which neutrals must carry on their commerce, and prescribed licenses, without which trade in certain articles would be held unlawful. Against these orders the French Emperor fulminated the Milan decree of Dec. 17, 1807, declaring that Milan decree. every vessel which submitted to be searched by an English cruiser, or to make a voyage to England, or to pay a tax to the English government, had lost the right to its own flag, and had become English property; that such vessels, falling into the hands of French cruisers, or entering French ports, would be regarded as lawful prize; and that every vessel holding communication with Great Britain or with her colonies, if taken, would be condemned. Measures of the These arbitrary extensions of the right of war, by which neutral rights were sacrificed to the retaliation of the belligerents, were calculated to grind to pieces the few remaining neutral powers. Our country, being the principal state in this condition, made strong complaints, the disregard of which led to more positive measures. In December, 1807, an embargo was laid on commercial vessels in the ports of the United States, and in March, 1809, was passed an act prohibiting intercourse with France and England, until their restrictions on neutral commerce should be removed: which act was to continue in force towards either country, until it should revoke its obnoxious decrees. This led to some relaxation on the part of Great Britain. council of April, By an order in council of April 20, 1809, the British orders in ports of Holland, France, and Northern Italy, 1809. were to be placed under blockade, while the rest of the coast embraced under previous orders, was opened to neutral commerce. Napoleon, as yet, however, relaxed his system of measures in no degree. In 1810, he ordered all British manufactures found in France to be burnt, and the same regulation extended to the states under French supremacy. This would seem to show that the prohibition of trade with England was not rigidly enforced, which was owing in part to the deficiency of the French naval force, and in part to the great demand for British manufactures and the venality of revenue officers. On the other hand, the English, being masters of the sea, were able to make their orders in council good against neutral commerce. It would seem that there was an understanding between the French governinent and our own, that the Berlin decree should not be put into force against our vessels. Such continued to be the state of things until 1812, when the French government annulled its obnoxious decrees, and the British, upon being made acquainted with the fact, rescinded their retaliatory orders, as far as concerned American goods on American vessels. This took place June the 23d,not in time to prevent the war with Great Britain, which the United States had already begun in the same month, and a principal pretext for which was these same orders in council. $190. In order to enforce the right of preventing neutrals from conveying hostile or contraband goods on their The right of ships, and from breaking blockade, it is necessary search. that the belligerents should be invested with the right of search or visit. By this is intended the right to stop a neutral vessel on the high seas, to go on board of her, to examine her papers, and, it may be, even her cargo,-in short, to ascertain by personal inspection that she is not engaged in the infraction of any of the rights above enumerated. The right of search is by its nature confined within narrow |