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The cruising ship has a right to send on board the merchant ship for her papers; and if she be found to carry contraband goods, or military officers to any port of the enemy, the cruiser must bring the same before the Court of Prizes for a more deliberate enquiry than could be conducted at sea. The right of search is regulated by treaties, and by regulations issued by the belligerent powers.'
The right to search private vessels belonging to the subjects of a foreign nation on the high seas, for deserters and other persons liable to military and naval service, has been uniformly asserted by Great Britain, and equally denied by the United States.?
Sir W. Scott, in the case of the Maria, lays down and argues the three following propositions—First, That the right of visiting and searching merchant ships on the high seas, whatever be the ships, the cargoes, the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. Second, That the authority of the neutral Sovereign being interposed in any manner of mere force cannot legally vary the rights of a lawfully commissioned belligerent cruiser ; and third, That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. In the case of the Catherina Elizabeth, he says,—' If a neutral master attempts a rescue, he violates a duty which is imposed upon him by the law of nations, to submit to come in for enquiry as to the property of the ship or cargo; and if he violates that obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner; and it would, I think, extend also to the confiscation of the whole cargo entrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the rights of war.
1 International Commercial Law, Introduction, p. 48. 2 Wheaton, p. 210. 3 1 Robinson's A. R., p. 359 et seq. 4 5 Rob. A. R., p. 232.
With an enemy master, the case is very different; no duty is violated by such an act on his part—lupum auribus teneo, and if he can withdraw himself, he has a right so to do.'
In general, no salvage is due for the recapture of neutral vessels and goods, upon the principle that the liberation of a bonæ fidei neutral from the hands of the enemy of the captor, is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized. To this general rule, however, an important exception has been made, in the case where the vessel or cargo recaptured was practically liable to be confiscated by the enemy.?
Blockade.--A blockade is the disposition of troops or armed vessels, so as to cut off all external communication with an enemy's ports, fortress, city, &c. The term is now generally applied to the blockade of a port by armed vessels. By the Declaration of Paris (already cited, p. 320) the blockade, to be binding, must be effective ; that is to say, must be maintained by a force sufficient really to prevent access to the coast of the enemy. Any attempt to convey persons or goods to or from the place blockaded is termed a breach of blockade, and subjects the offender to the confiscation of the
1 Wheaton, p. 650. . See, for examples, Wheaton, p. 651.
offending ship and property if seized by the blockading power.
Neutral vessels lying at the place when the blockade commences are at liberty to retire, taking with them the cargoes with which they may be already laden; but they must not take in any new cargo after the notification of the blockade. Wheaton says,— A neutral ship departing can take away a cargo bonâ fide purchased and delivered before the commencement of the blockade; if she afterwards take on board a cargo, it is a violation of the blockade." A maritime blockade is not violated by sending goods to the blockaded port, or by bringing them from the same through the interior canal navigation or land carriage of the country, for the legal blockade can extend no further than the actual blockade can be applied. Sir W. Scott says, "There are two sorts of blockade : one by the simple fact only, the other by a notification accompanied with the fact. In the former case, when the fact ceases otherwise than by accident, or the shifting of the wind, there is immediately an end of the blockade. But where the fact is accompanied by a public notification from the government of a belligerent country, I apprehend, prima facie, the blockade must be supposed to exist till it has been publicly repealed.”
A breach of blockade subjects, as we have said, the vessel, and all the property on board it, to confiscation; but as the master is only the agent of the owners of the ship, the cargo is restored, if it can be proved that the owners were not parties to the breach, and that, when the cargo was shipped, they were ignorant of the blockade. The ship which violates a blockade may be p.
2 The Neptunus, 1 Rob. A. R., p. 171.
confiscated on her return; and if she be taken in any part of the voyage, she is taken in delicto, and is subject to confiscation.
In all cases, however, of breach of blockade, as of contraband of war, it is the duty of the cruiser to take the ship to a Court of Prizes for adjudication. Captors have the right to seize, but subject to the duty of bringing the vessel to adjudication.
To constitute a violation of blockade three things must be proved:-1, the existence of an actual blockade; 2, the knowledge of the party supposed to have offended; and 3, some act of violation, either by going in or coming out with a cargo laden after the commencement of the blockade. The existence of an actual blockade must be evidenced by the actual presence of a maritime force, stationed at the entrance of the port, sufficiently near to prevent communication. The only exception to the general rule, which requires the actual presence of an adequate force to constitute a lawful blockade, arises out of the circumstance of the occasional temporary
absence of the blockading squadron produced by accident, as in the case of a storm, which does not suspend the legal operation of the blockade. The law considers an attempt to take advantage of such an accidental removal a fraudulent attempt to break the blockade.3
As a proclamation or general public notification is not of itself sufficient to constitute a legal blockade, so neither can a knowledge of the existence of such a blockade be imputed to the party merely in consequence of such a proclamation or notification. Not only
Levi, International Commercial Law, Introduction, p. 51, which see for cases in support of these propositions. 2 Wheaton, p. 827.
3 Ib., p. 828.
must an actual blockade exist, but a knowledge of it must be brought home to the party, in order to show that it has been violated. In the case of a blockade de facto only, a neutral master may plead ignorance in fact; but in the case of a blockade by notification, he may not, for he is held to know what has been communicated to his Government.
The offence incurred by a breach of blockade generally remains during the voyage ; but the offence never travels on with the vessel further than the end of the return voyage; although, if she is taken in any part of that voyage, she is taken in delicto. But when the blockade is raised, a veil is thrown over everything that has been done, and the vessel is no longer taken in delicto.
Safe-conduct.-Safe-conducts, passports, and licenses are documents granted in war to protect persons and property from the general operation of hostilities. The competency of the authority to issue them depends on general principles. Grotius lays down the general rule, that safe-conducts, of which passports and licenses are species, are to be liberally construed,—laxa quam stricta interpretatio admittenda est. Of late, licenses have been interpreted with great liberality in the British Courts of Prize.?
Truce, Armistice.-A truce or armistice is a suspension of hostilities. It may be either general or special. It may amount, in effect, to a temporary peace, except that it leaves undecided the controversy in which the war originated. The conclusion of such a general truce requires either the previous special authority of the Supreme Power of the State, or a subsequent ratification of such power. A suspension of hostilities 1 Wheaton, p. 832.
Ib., p. 691.