the laws of war 16

the laws of war 16

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

ship) in which they are carried must, therefore, be

forfeited."[178]

 

[Sidenote: Ambassadors excepted.]

 

The Despatches of an Ambassador 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 ambassador of the enemy may be stopped on his passage, but when he

has arrived in the neutral country, he becomes a sort of _middleman_,

and is entitled to peculiar privileges.[179]

 

[Sidenote: Penalty for Contraband Trade.]

 

Under the present Law of Nations, a Contraband Cargo cannot affect the

ship; the carrying of contraband articles is attended only with loss

of freight and expenses, except where the ship 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 circumstances.[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 ship 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 pass 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 assumed 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 constitute 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.

 

This axiom is laid down in all books of authority; and the law

considers an attempt to take advantage of such an accidental removal

as an attempt to break the blockade, and a mere fraud.[185]

 

When a blockading squadron is driven off by a superior force, the

blockade is effectually raised, and it must be renewed by fresh

notification, before foreign nations can be affected by an obligation

to observe it as a blockade. The mere appearance of another squadron

will not renew it, but it must be restored by the measures required

for the original imposition of a blockade.[186]

 

[Sidenote: Second Rule of Blockade.]

 

It is necessary that the evidence of a blockade should be clear and

decisive. A blockade may exist without a public declaration; although

a declaration, unsupported by fact, will not be sufficient to

establish it. In the War of 1798, the West India Islands were declared

under blockade by Admiral Jervis; but the Lords of the Supreme Court

held, that as the fact did not support the declaration, a blockade

could not be deemed legally to exist. But the fact, on the contrary,

duly notified on the spot, is of itself sufficient; for public

notifications between governments are meant for the information of

individuals; but if the individual is _personally_ informed, that

purpose is better obtained than by a public declaration.[187]

 

Where the vessel sails from a country lying near enough to the

blockaded port to have constant information of the blockade, no notice

is necessary of its continuance or relaxation; but when the country is

at a distance beyond constant information, they may lawfully send

their vessels on conjecture that the blockade is broken up, after it

has existed a long time.[188] And this is important, as it must be

remembered that even the _intention_ to evade blockade is a fraudulent

breach of it, and sailing towards the port is an _overt_ act of that

intent.[189]

 

There are two kinds of Blockade. 1. Simple Blockade, _i.e._ Blockade

in Fact; and 2nd., Blockade in Fact, accompanied by a Notification.

The first expires by the breaking up _intentionally_ of the blockading

squadron. The second, _prima facie_, does not expire until the repeal

of the notification, but it is the duty of the belligerent country

directly the blockade ceases, _de facto_, to revoke its proclamation.

And it would appear that a notified blockade would only expire, in

fact, after some unnecessary and long neglect to publish this

revocation; otherwise neutral nations are bound until such

publication.[190]

 

It has from time to time been stipulated, in treaties between

belligerent and neutral countries, (as in the case of the Treaty

between Great Britain and the United States, of 1794,) that vessels of

the neutral country should not be considered as having notice of a

blockade, until they have been duly and respectfully warned off; and

it would only be on a second attempt to enter port that they would be

liable to be seized. Under such a treaty a neutral vessel might

lawfully sail for a blockaded port, knowing it to be blockaded.[191]

 

[Sidenote: Third Rule of Blockade.]

 

An act of Violation is essential to a Breach of Blockade; such as,

either going in or coming out of the port with a cargo, laden after

the commencement of the blockade: or being found so near to the

blockaded port as to show, beyond a doubt, that the vessel was

endeavouring to run into it: or where the intention is expressly

avowed by the papers found on board.[192]

 

The time of shipment is very material; for although it may be hard to

refuse a Neutral, liberty to retire with a cargo already laden, and by

that act already become neutral property,--yet, after the commencement

of a blockade, a neutral cannot be allowed to interpose in any way to

assist the exportation of the property of the enemy. After the

commencement of a blockade, a Neutral is no longer at liberty to make

any purchase in that port.[193]

 

A _Maritime_ Blockade is not in law violated by bringing or sending

goods to the port through the internal canal navigation or land

carriage of the country; and thus such goods are not liable to

confiscation on ground of the blockade.

 

[Sidenote: Right of Search.]

 

On the great question of the Right of Search, the International Law

has been summed up by Lord Stowell, 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.[194]

 

First, the right of visiting and searching merchant ships on the high

seas, whatever be the ships, whatever be the cargoes, whatever be the

destinations, is the incontestible right of the lawfully commissioned cruizers of a belligerent nation.