The offence incurred by a breach of blockade generally remains during the voyage; but the offence never travels on with the vessel further than to the end of the return voyage, although if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent cruisers, to vindicate the violated law. But where the blockade has been raised between the time of sailing and the capture, the penalty does not attach; because the blockade being gone, the necessity of applying the penalty to prevent future transgression no longer exists. When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto. The delictum may have been completed at one period, but it is by subsequent events done away.”7

§ 26.

Right of

visitation

The right of visitation and search of neutral vessels at sea is a belligerent right essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels and search. committing a breach of blockade. Even if the right of capturing, enemy's property be ever so strictly limited, and the rule of free ships free goods be adopted, the right of visitation and search is essential in order to determine whether the ships themselves are neutral and documented as such according to the law of nations and treaties; for, as Bynkershoek observes, "it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves on board, whether she is really neutral." Indeed it seems that the practice of maritime captures could not exist without it. Accordingly the text writers generally concur in recognising the existence of this right.78

77 Robinson's Adm. Rep. vol. ii. p. 128. The Welvaart van Pillaw. Vol. vi. p. 387. The Lisette. As to how far the act of the master binds the ship. owner in cases of breach of blockade, see the cases collected in Wheaton's Reports, vol. ii. Appendix, pp. 36-40.

78 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. ch. 7, § 114. Martens, Précis, &c. liv. viii. ch. 7, §§ 317, 321. Ga

The international law on this subject is ably summed up by Sir W. Scott 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. In delivering the judgment of the High Court of Admiralty in that memorable case, this learned civilian lays down the three following principles of law:

1. That the right of visiting and searching merchant-ships on the high seas, whatever be the ships, the cargoes, or the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. "I say, be the ships, the cargoes, and the destination what they may, because till they are visited and searched, it does not appear what the ships, or the destination are; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. This right is so clear in principle that no man can deny it who admits the right of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods, must admit the exercise of this right at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges."

2. That the authority of the neutral sovereign being forcibly interposed cannot legally vary the rights of a lawfully commissioned belligerent cruiser. "Two sovereigns may unquestionably agree, if they think fit, as in some late in

liani, dei Doveri de' Principi Neutrali, &c. p. 458. Lampredi, Del Commercio de' Popoli Neutrali, &c. p. 185. Kluber, Droit des Gens Moderne de l'Europe, § 293,

stances they have agreed, by special covenant, that the presence of one of their armed ships along with their merchantships shall be mutually understood to imply that nothing is to be found in that convoy of merchant-ships inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it."

3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. "For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law. In book iii. c. 7, sect. 114, he expresses himself thus:-On ne peut empêcher le transport des effets de contrebande, si l'on ne visite pas les vaisseaux neutres. On est donc en droit de les visiter. Quelques nations puissantes ont refusé en differents temps de se soumettre à cette visite. Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul, comme étant de bonne prise.' Vattel is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting a fact-the fact that such is the existing practice of modern Europe. Conformably to this principle we find in the celebrated French ordinance of 1681, now in force, article 12, That every vessel shall be good prize in case of resistance and combat; and Valin, in his smaller Commentary, p. 81, says expressly, that although the expression is in the conjunctive, yet that the resistance alone is sufficient. He refers to the Spanish ordinance, 1718, evidently copied from it, in which it is expressed in the disjunctive, 'in case of resistance or combat.' And recent instances are at hand and within view, in which it appears that Spain continues to act upon this principle. The first time it occurs to

my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, except what occurs in the Black Book of the Admiralty, is in the order of council, 1664, art. 12, which directs, 'That when any ship, met withal by the royal navy or other ship commissionated, shall fight or make resistance, the said ship and goods shall be adjudged lawful prize. A similar article occurs in the proclamation of 1672. I am therefore warranted in saying that it was the rule and the undisputed rule of the British Admiralty. I will not say that that rule may not have been broken in upon in some instances by conside. rations of comity or of policy, by which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a state may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so, the particular captor having in no case any other right and title than what the state itself would possess under the same facts of capture. But I stand with confidence upon all principles of reason,-upon the distinct authority of Vattel,-upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of confiscation."79

The judgment of condemnation pronounced in this case was followed by the treaty of armed neutrality entered into by the Baltic powers in 1800, which league was dissolved by the death of the emperor Paul, and the points in the controversy between those powers and Great Britain were finally adjusted by the convention of 5th June, 1801. By the 4th article of this convention, the right of search as to merchant vessels sailing under neutral convoy was modified, by limiting

79 Robinson's Adm. Rep. vol. i. p. 340. The Maria.

it to public ships of war of the belligerent party, excluding private armed vessels. Subject to this modification, the pretensions of resisting by means of convoy the exercise of the belligerent right of search, was surrendered by Russia and the other northern powers, and various regulations provided to prevent the abuse of that right to the injury of neutral commerce. As has already been observed, the object of this treaty is expressly declared by the contracting parties in its preamble to be the settlement of the differences which had grown out of the armed neutrality by "an invariable determination of their principles upon the rights of neutrality in their application to their respective monarchies." The 8th article also provides that the principles and measures adopted by the present act shall be alike applicable to all the maritime wars in which one of the two powers may be engaged whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve as a constant rule for the contracting parties in matters of commerce and navigation.'

9980

§ 27.

Forcible

In the case of the Maria, the resistance of the convoying ship was held to be a resistance of the whole fleet of mer- resistance chant vessels under convoy, and subjected the whole to con- by an enefiscation. This was a case of neutral property condemned for my master. an attempted resistance by a neutral armed vessel to the exercise of the right of visitation and search by a lawfully commissioned belligerent cruiser. But the forcible resistance by an enemy master will not, in general, affect neutral property laden on board an enemy's merchant vessel; for an

80 The question arising out of the case of the Swedish convoy gave rise to several instructive polemic essays. The judgment of Sir W. Scott was attacked by Professor J. F. W. Schlegel, of Copenhagen, in a Treatise on the Visitation of Neutral Ships under Convoy, transl. London, 1801; and vindicated by Dr. Croke in "Remarks on M. Schlegel's Work," 1801. See also "Letters of Sulpicius on the Northern Confederacy," London, 1801. "Substance of the Speech of Lord Grenville in the House of Lords, Nov. 13, 1801." London, 1802.