Part 10 (1/2)

”That a vessel hired, by the enemy, for the conveyance of military persons is to be considered _as a transport_, subject to condemnation, has been in a recent case, held by this Court, and on other occasions.[174] What is the number of military persons that shall const.i.tute such a case it may be difficult to define. In the former cases there were many, in the present they are fewer in number; number alone is an insignificant circ.u.mstance in the considerations on which the principles of law on this subject are built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To send out _one veteran general_ of France to take command of the forces at Batavia might be a much more noxious act than the conveyance of a whole regiment. The consequences of such a.s.sistance are greater, and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three,[175] and there are besides two other persons who were going to be employed in civil capacities in the Government of Batavia. *** It appears to me, _on principle_, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, and at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with hostile operations.[176] The fact of the vessel having been pressed into the enemy's service does not exempt her. The master cannot aver that he was an involuntary agent.”[177]

[Sidenote: Neutral s.h.i.+ps Carrying Enemy's Despatches.]

Carrying the _Despatches of the Enemy_ is also a ground of condemnation.

”In the transmission of Despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent, in the world. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character--as an act of the most hostile nature. The offence of _fraudulently_ carrying despatches in the service of the enemy being greater than other contraband, some other penalty has to be affixed. The confiscation of the noxious article would be ridiculous when applied to _Despatches_. There would be _no_ freight dependent on their transportation. The _vehicle_ (_i.e._ the s.h.i.+p) in which they are carried must, therefore, be forfeited.”[178]

[Sidenote: Amba.s.sadors excepted.]

The Despatches of an Amba.s.sador or other Public Minister of the Enemy, resident in a neutral country, are an exception to this rule, being the despatches of persons who are in a peculiar manner the favourite object of the Law of Nations, residing in the neutral country for the purpose of preserving peace and the relations of amity between that state and their own government.

The amba.s.sador of the enemy may be stopped on his pa.s.sage, but when he has arrived in the neutral country, he becomes a sort of _middleman_, and is ent.i.tled to peculiar privileges.[179]

[Sidenote: Penalty for Contraband Trade.]

Under the present Law of Nations, a Contraband Cargo cannot affect the s.h.i.+p; the carrying of contraband articles is attended only with loss of freight and expenses, except where the s.h.i.+p belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with some malignant and aggravating circ.u.mstances.[180]

[Sidenote: Additional Penalties.]

The aggravation of fraud justifies additional Penalties; thus, the carriage of contraband with a false destination, will work a condemnation of the s.h.i.+p as well as the cargo; the false destination being intended to defeat the right of pre-emption.[181] Generally, _false_ papers will extend the taint of contraband to the vessel.

It is also an established rule, that the transfer of contraband by a neutral, from one port of a country to another, where it is required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself.[182]

[Sidenote: Return Voyage Free.]

Generally, the proceeds of the Return Voyage cannot be taken. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken _in delicto_, and in actual prosecution of such a voyage, the penalty is not now generally held to attach.[183]

SECTION III.

_Blockades. Right of Search. Convoys_.

[Sidenote: Blockades.]

We now pa.s.s 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 a.s.sumed 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 const.i.tute 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.