resulting therefrom, Guadaloupe and Jamaica are no more to Germany than if they were settlements in the mountains of the moon; to commercial purposes, they are not in the same planet. If they were annihilated, it would make no chasm in the commercial map of Hamburg. If Guadaloupe could be sunk in the sea, by the effect of hostility, at the beginning of a war, it would be a mighty loss to France, as Jamaica would be to England, if it could be made the subject of a similar act of violence. But such events would find their way into the chronicles of other countries as events of disinterested curiosity, and nothing more.

Upon the interruption of a war, what are the rights of belligerents and neutrals respectively regarding such places? It is an indubitable right of the belligerent to possess himself of such places, as of any other possession of his enemy. This is his common right, but he has the certain means of carrying such a right into effect, if he has a decided superiority at sea: Such colonies are dependent for their existence, as colonies, on foreign supplies; if they cannot be supplied and defended they must fall to the belligerent of courseand if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution? No existing interest of his is affected by it; he can have no right to apply to his own use the beneficial consequences of the mere act of the belligerent; and say: "True it is, you have, by force of arms forced such places out of the exclusive possession of the enemy, but I will share the benefit of the conquest, and by sharing its benefits prevent its progress. You have in effect, and by lawful means, turned the enemy out of the possession which he had exclusively maintained against the whole world, and with whom we had never presumed to interfere; but we will interpose to prevent his absolute surrender, by the means of that very opening, which the prevalence of your arms alone has affected; supplies shall be sent and their products shall be exported; you have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your blood and treasure have been expended, not for your own interest, but for the common benefit of others."

Upon these grounds, it cannot be contended to be a right of neutrals, to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies and to export their products, affects to open them to neutrals, it is not his will but his necessity that changes his system; that change is the direct and unavoidable consequence of the compulsion of war, it is a measure not of French councils, but of British force. Upon these and other grounds, which I shall not at present enumer

SCOTT INT.LAW

ate, an instruction issued at an early period for the purpose of preventing the communication of neutrals with the colonies of the enemy, intended, I presume, to be carried into effect on the same footing, on which the prohibition had been legally enforced in the war of 1756; a period when, Mr. Justice Blackstone observes, the decisions on the law of nations proceeding from the Court of Appeals, were known and revered by every state in Europe. *

Upon the whole view of the case as it concerns the goods shipped at Bordeaux, I am of opinion that they are liable to confiscation. I do not know that any decision has yet been pronounced upon this subject; but till I am better instructed by the judgment of a superior tribunal, I shall continue to hold that I am not authorized, either by general legal principles applying to this commerce, or by the letter of the king's instructions, to restore goods, although neutral property, passing in direct voyages between the mother country of the enemy and its colonies. I see no favorable distinction between an outward voyage and a return voyage. I consider the intent of the instruction to apply equally to both communications, though the return voyage is the only one specifically mentioned.

The only remaining question respects the ship; it belongs to the same proprietors, and if the goods could be considered as properly contraband, would on that account be liable to confiscation, for in the case of clear contraband this is the clear rule. I incline to apply a more favorable one in the present case. It is a case in which a neutral might more easily misapprehend the extent of his own rights; it is a case of less simplicity, and in which he acted without the notice of former decisions upon the subject. The ship came from Hamburg in the commencement of the voyage; she was not picked up for this particular occasion, but was intended to be employed in her owner's general commerce. Attending to these considerations, I shall go no further than to pronounce for a forfeiture of freight and expenses, with a restitution of the vessel.

Cargo, taken in at Bordeaux, condemned. Ship restored, without freight."

7 The Atlas, 3 C. Rob. 299 (1801), was an American ship carrying a cargo of tobacco from America to Vigo, in Spain, or a market, consigned to the master for sale; at Vigo it was sold to the administration of the revenue of tobacco, under a contract of the master to deliver it at Seville, at his own risk, and there to receive payment. The ship was taken in the voyage from Vigo to Seville.

The cargo was condemned as Spanish property. The ship was restored, but freight was refused "as on a voyage in the coasting trade of the enemy."

In The Rendsborg, 4 C. Rob. 121 (1802), Sir William Scott found that foreign ships had been permitted to import and export from Batavia during the war between Great Britain and Holland. He held contracts illegal by which the trade of the Dutch East India Company, in whole or in large part, was transferred to neutrals. In the course of his opinion he said:

"It is not the case of an individual merchant, nor of a company going to trade on the general permission, in an ordinary character, or on a common

SECTION 3.-BLOCKADE

THE BETSEY.

(High Court of Admiralty, 1798. 1 C. Rob. 93.)

This was a case of a ship and cargo, taken by the English, at the capture of Guadaloupe, April 13, 1794, and retaken, together with that island, by the French, in June following. The ship was claimed for Mr. Patterson of Baltimore, and the cargo as American property. The captors, being served with a monition to proceed to adjudication, footing. It is a trade carried on to an enormous extent, invested with particular privileges, secured by peculiar contracts, and transferred from the public company to which it exclusively belonged, to these individuals, upon an express acknowledgment understood and acted upon, on both sides, that it was so transferred, in order to relieve the goods which were confined there by the pressure of war, and could not be delivered by any other practicable mode. The question is, Whether a commerce formed with such views, and so conducted, can be entitled to a neutral character? I will take it that there is no difficulty upon the particular facts of the adventure, and that there is no objection to the sufficiency of the proofs of property. Taking the goods to be the property of De Coninck, is the commerce neutral? It is a possible thing that the commerce may not be neutral, although the property is: and if that is the case, the mere neutral ownership will not be a sufficient title to restitution." Pages 123, 124.

This is one of Sir William Scott's very elaborate and closely reasoned opinions, and although affirmed on appeal, in 1803, it has not had the good fortune of almost all of his judgments. Thus, in The Ariel, 11 Moore, P. C. 119, 139 (1857), Sir John Patteson delivering the judgment of the Privy Council, questioned and refused to be bound by that decision, saying:

"One other argument was pressed, arising from the number of vessels bought by the claimant, and the magnitude of the transaction was insisted on and the case of The Rendsborg, 4 Rob. 121 (1802), was particularly adverted to. That case was such, that Lord Stowell held it to amount to an adhering to and assisting the enemy, and it was of a very peculiar character. Their Lordships are unable to see why, if the transfer of one ship was legal, under the circumstances which have here occurred, if it had stood alone, such transfer should be rendered illegal because six other ships were purchased, under similar circumstances, at the same time; unless, indeed, as affording ground to believe that all the purchases were fraudulent and collusive."

8 Regarding intent coupled with delictum, Chief Justice Marshall, speaking for the unanimous court in the case of Fitzsimmons v. Newport Insurance Company, 4 Cranch, 185, 199 (1808), said:

"Neither the law of nations nor the treaty admits of the condemnation of the neutral vessel, for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, has been, in some English cases, construed into an attempt to enter that port, and has, therefore, been adjudged a breach of the blockade, from the departure of the vessel. Without giving any opinion on that point, it may be observed, that in such cases, the fact of sailing is coupled with the intention, and the sentence of condemnation is founded on an actual breach of blockade." In the World War, 1914-1918, the belligerents did not resort to blockade in the technical sense of the word, as in past wars. Changes in the method of warfare through mines, submarines, and air-craft made it difficult for vessels to maintain position within the blockaded areas.

By the British Order in Council of March 11, 1915, and the French Decree of March 13, 1915, all neutral vessels destined to an enemy port or neutral

appeared under protest, and the cause now came on upon the question, Whether the claimants were entitled to demand of the first British captors, restitution in value, for the property which had passed from them to the French recaptors? The first seizure was defended on a suggestion that The Betsey had broken the blockade at Guadaloupe.

Sir W. SCOTT. This is a case which it will be proper to consider under two heads. I shall first dispose of the question of blockade; and then proceed to inquire on whom the loss of the recapture by the French ought to fall, under all the circumstances of the case.

On the question of blockade three things must be proved: 1st, the existence of an actual blockade; 2dly, the knowledge of the party; and, 3dly, some act of violation, either by going in, or by coming out with a cargo laden after the commencement of blockade. The time of shipment would on this last point be very material, for although it might 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, I conceive, be allowed to interpose in any way to assist the exportation of the property of the enemy, After the commencement of the blockade, a neutral is no longer at liberty to make any purchase in that port.10

It is necessary, however, that the evidence of a blockade should be clear and decisive; but in this case there is only an affidavit of one of the captors, and the account which is there given is, "that on the arrival of the British forces in the West Indies, a proclamation issued, inviting the inhabitants of Martinique, St. Lucie, and Guadaloupe to port in Europe, and all neutral vessels sailing from such an enemy or neutral port, on or after March 1, 1915, could be stopped; conducted to an Allied port, and their cargoes sequestrated or requisitioned, unless they received a pass enabling them to proceed. Both vessels and cargoes might be confiscated for other offenses, but they were not confiscated under these orders or decrees. The vessels and cargoes, or proceeds thereof, were to be returned at the end of the war.

On the law as it stood at the time, the belligerents were not entitled thus to treat vessels or cargoes destined to neutral ports, unless they fell within the rule of continuous voyage, and they did not possess the right thus to treat property of enemy origin exported from a neutral port, except by a rule which necessity suggested, and force maintained.

For the text of the Order in Council of March 11, 1915, and of that of February 16, 1917, in pari materia, see Appendix, post, pp. 1175, 1179.

In The Pericles, the Italian Prize Commission held, in 1916, according to the headnote of the report of the case, that:

"A neutral vessel with its cargo cannot legally be seized for violation of blockade and should be released, although it has passed the line of blockade without having provided with the obligatory safe-conduct, if it is proved as a fact that the conditions of weather and sea, as well as damages suffered by the ship, that is to say cases of force majeure, have not permitted it to stop in the port where it should have called to obtain the necessary safe-conduct." Paul Fauchille, Jurisprudence italienne en matière de prises maritimes (1918) 152.

Part of the opinion is omitted.

10 See the Vrow Judith, 1 C. Rob. 152, note (1799).

put themselves under the protection of the English; that on a refusal, hostile operations were commenced against them all;" but it cannot be meant that they began immediately against all at once; for it is notorious that they were directed against them separately and in succession. It is farther stated, "that in January, 1794 (but without any more precise date), Guadaloupe was summoned, and was then put into a state of complete investment and blockade."

The word "complete" is a word of great energy; and we might expect from it to find, that a number of vessels were stationed round the entrance of the port to cut off all communication'; but, from the protest, I perceive that the captors entertained but a very loose notion of the true nature of a blockade; for it is there stated, “that on the 1st of January, after a general proclamation to the French islands, they were put into a state of complete blockade." It is a term, therefore, which was applied to all those islands at the same time, under the first proclamation.

The Lords of Appeal have determined that such a proclamation was not in itself sufficient to 'constitute a legal blockade. It is clear, indeed, that it could not in reason be sufficient to produce the effect, which the captors erroneously ascribed to it; but from the misapplication of these phrases in one instance, I learn that we must not give too much weight to the use of them on this occasion; and, from the generality of these expressions, I think, we must infer, that there was not that actual blockade which the law is now distinctly understood to require.

But it is attempted to raise other inferences on this point, from the manner in which the master speaks of the difficulty and danger of entering; and from the declaration of the municipality of Guadaloupe, which states "the island to have been in a state of siege." It is evident that the American master speaks only of the difficulty of avoiding the English cruisers generally in those seas; and as to the other phrase, it is a term of the new jargon of France, which is sometimes applied to domestic disturbances; and certainly is not so intelligible as to justify me in concluding, that the island was in that state of investment, from a foreign enemy, which we require to constitute blockade. I cannot, therefore, lay it down, that a blockade did exist, till the operations of the forces were actually directed against Guadaloupe in April.

It would be necessary for me, however, to go much farther, and to say that I am satisfied also that the parties had knowledge of it; but this is expressly denied by the master. He went in without obstruction. Mr. Incledon's statement of his belief of the notoriety of the blockade is not such evidence as will alone be sufficient to convince me of it. With respect to the shipment of the cargo, it does not appear exactly under what circumstances or what time it was taken in. I shall therefore dismiss this part of the case.