The Fact of a blockade must ac made liable to the consequences of breaking the blockade, does not arise when the blockade has been notified in a public and solemn manner by a Declaration on the part of the executive Government to foreign Powers. Where, on the other hand, the blockade is established by the commander of a squadron without any public Notification on the part of his Government, the notoriety of the fact of an actual blockade will not be presumed against the master of a neutral vessel, so as to disentitle him to the benefit of an actual notice from the blockading force on his arrival in the neighbourhood of the blockaded port. Thus the instructions transmitted by the Lords of the Admiralty on 8 January 1804 to Commodore Hood in regard to the blockade of the islands of Martinique and Guadaloupe were, that he was not to consider any blockade of those islands as existing, unless in respect of particular ports, which may be actually invested, and then not to capture vessels bound to such ports, unless they shall previously have been warned not to enter them 2. It is otherwise however with vessels coming out of a blockaded port. There no notice is necessary, after the blockade has existed de facto for any length of time; the continued fact is itself a sufficient notice, as it is impossible for those within to be ignorant of the forcible suspension of their commerce. The notoriety of the thing in this case supersedes the necessity of particular notice to each ship 33. 34 § 106. M. Hautefeuille discusses the blockade by notification and the blockade by notoriety, as if they the Notifi- were varieties of paper blockades or fictitious block cord with cation. 32 Tutela, 6 Ch. Rob. p. 179. Rob. 34 Des Droits des Nations Neutres, Tit. IX. c. 5. § 1. and 2. ades; but such is not the meaning of those terms as employed in the English Courts of Admiralty. The Lords of Appeal in Prize cases have long since held that a proclamation of blockade is not in itself sufficient to constitute a legal blockade. Thus the West India islands were declared under blockade by Admiral Jarvis, but the Lords held that as the fact did not support the declaration, a blockade could not be deemed legally to exist; and on a recent occasion during the Russian War (30 Nov. 1855) the Judicial Committee of the Privy Council held that the notice of a blockade must not be more extensive than the blockade itself, otherwise the neutral will be at liberty to disregard such notice, and will not be liable to the penalties attending a breach of blockade for afterwards attempting to enter the port which is really blockaded". To the same effect Lord Stowell has observed, "There are two sorts of blockade; one by the simple fact only; the other by notification, accompanied with the fact 38. It would be an error to suppose that the British Courts of Admiralty admit that the mere Notification of a blockade is sufficient to constitute a legal blockade: there must be likewise a blockade de facto at the time of Notification, otherwise the Notification will not have any legal effect. Such was the view of the British Government, as expressed by them in a note communicated to the Government of the United States of America in 1807, by its Minister, Mr. Forster, on the subject of the blockade of 1806 and 1807. "Great Britain," they said, "has never contested, that ac 35 The Betsey, 1 Ch. Rob. Franciska), 10 Moore, P. C. ReP. 95. ports, p. 59. 38 The Neptunus, I Ch. Rob. p. 171. the French cording to the customary Law of Nations every blockade, in order that it should be justified, ought to be maintained by a sufficient force, and place in danger every vessel that shall attempt to evade it. It was in accordance with this principle that the blockade of 1806 was not notified to foreign Powers by Mr. Fox, until after he had been convinced by a Report from the Board of Admiralty, that the Admiralty had adopted and would employ every means to watch the coast from Brest to the Elbe, and to place this blockade really in execution. The blockade therefore of the month of May 1806, was full and legitimate in its origin, since it was maintained not merely in intention, but in fact by a sufficient force 39." Practice of $107. The substantial difference which the British Courts as Courts make between a blockade which has been to notice. notified to neutral Governments, and a blockade which has not been so notified, is, that vessels in the former case are not entitled to a direct warning from the blockading squadron, before they can be captured as Prize of War for violating the blockade. On the other hand, the French Courts are more lenient on the subject of direct warning; for the practice of the French Government 40 is to instruct their cruisers to give actual notice on the spot to all parties attempting for the first time to enter a port which has 39 A French version of this note, of which the above is a translation, is given by M. Hautefeuille, Tom. II. p. 257. The same doctrine was maintained in a note from Lords Holland and Auckland, the British Plenipotentiaries, addressed to Messrs. Monroe and Pinckney, the United States' Commissioners, 31 Dec. 1806. Papers presented to Parliament in 1808. 40 The ancient practice was more rigorous, if we may judge from the Règlement of 26 July 1778, (Lebeau, Tom. II. p. 58.) under which French privateers were authorised to capture all neutral vessels, "qui porteroient des secours à des places bloquées, investées, ou assiégées," no mention being made of a preliminary warning. been placed under blockade, even where the blockade itself has been a subject of diplomatic Notification to neutral States. Such was the substance of the instructions given to the French cruisers both in 1827 and in 1830, when they established a blockade of the ports of the Regency of Algiers. Such also was the purport of the instructions contained in the Letter of Count Molé of 20th October 1838, which he addressed to the French Minister of Marine for the information of the commander of the French squadron then blockading the ports of Mexico". M. Molé, in a despatch of 17th of May 1838, in reference to the blockade of the ports of the Argentine Republic, has stated very clearly the principles upon which the French Courts of Prize proceed: "Tout blocus pour être valable envers les neutres, doit leur avoir été notifié et être effectif. "Un navire, se présentant devant un port bloqué avant d'avoir eu connoissance de blocus, doit d'abord en être averti, et la notification doit en être faite par écrit, et sur son rôle d'équipage. Mais cet avis ayant été donné, et cette formalité ayant été remplié, s'il persiste à entrer dans le port, ou s'il vient à s'y présenter de nouveau, le commandant du blocus a le droit de l'arrêter 42." In accordance with the above rules, we find the French Courts of Prize deciding on 21 Dec. 1847, in the case of La Louisa, captured in the waters of the River Plata, that it was not sufficient that the blockade should have been notified to foreign Powers: it was necessary that the ship itself should have notice of the existence and extent of the blockade, 41 This letter is given in extenso by M. Ortolan, in his Diplomatie de la Mer, Tom. II. P. 304. 42 Pistoye et Duverdy, Traité des Prises Maritimes, Tom. I. p. 382. 43 Ibid. p. 382. the United Courts as to notice. and that the notice should be entered on the ship's log before she could be captured and condemned as prize of war for violation of the blockade. On the other hand, the same Courts on 4 March 1830 condemned the vessel La Carolina", as good prize, because there had been an effective blockade of the ports of the Regency of Algiers, established since the month of May 1827, in virtue of orders transmitted from the French Government; and that the master of the Carolina had been warned of the existence of the blockade some days before the capture of his vessel, and a notice to that effect had been entered in the log of the vessel; and that after this direct warning, he had attempted to break the blockade, and enter the port of Oran." Practice of § 108. The doctrine of the British Courts of Prize, States that due notice of a blockade may be received constructively, has been adopted by the jurists of the United States of America. Thus Chancellor Kent writes: “It is absolutely necessary that the neutral should have had due notice of the blockade, in order to affect him with the penal consequences of a violation of it. This information may be communicated to him in two ways; either actually by a formal notice from the blockading Power, or constructively by notice to his Government, or by the notoriety of the fact. It is immaterial in what way the neutral comes to the knowledge of the blockade. If the blockade actually exists, and he has knowledge of it, he is bound not to violate it. A notice to a foreign Government is a notice to all the individuals of that Nation, and they are not permitted to aver ignorance of it, because it is the duty of the neutral Government to communicate the Notice to 44 Pistoye et Duverdy, Prises Maritimes, Tom. I. p. 381. 45 Commentaries of American Law, Tom. I. p. 147. |