ancient Law of Blockade. Both Great Britain and the United States have hitherto enforced against neutrals a harsher rule as to breach of blockade, than the Continental Powers of Europe have thought it necessary to maintain. The Continental Powers have for the most part been accustomed to warn off any neutral vessel approaching the line of blockade, and only to capture such vessels, as should attempt to pass the line of blockade after such warning. Great Britain, on the other hand, and the United States of America, have hitherto enforced in all its strictness the rule laid down by the States General of the United Provinces in 1630, that a ship, actually bound for a port known to be blockaded, with the intent to run the blockade, may be rightfully captured at any point of her voyage, and the ship with her cargo confiscated as good prize.* According, however, to recent decisions of the American Prize Courts, a neutral cargo may be condemned for breach of blockade, although the ship, in which the cargo is laden, is proved to be going to a neutral port, and the master has no intention whatever to attempt to run the blockade, if there should be grounds of suspicion that the cargo, after being landed at the port of the ship's destination, will be reladen on board some other vessel, after a sale or other "In Yeaton v. Fry (5 Cranch, 335), the American Courts coincided with the doctrine of the English Prize Courts, for they held that sailing from Tobago for Curacao, knowing the latter to be blockaded, was a breach of the blockade, and, according to the opinion of Mr. Justice Story, in the case of the Nereide (9 Cranch, 446) the act of sailing with an intent to break a blockade is a sufficient breach to authorise confiscation."-Kent's Commentaries, I., p. 150. But the later practice of the United States, according to Mr. Seward, the American Secretary of State, has been to notify the blockade individually to each vessel approaching the blockaded port, and to inscribe a memorandum of the notice having been given on the ship's papers. No vessel, according to this practice, was liable to seizure, which had not been individually warned off. The fact of there being blockading ships present to give warning was the best notice and the best proof, that the port was actually and effectively blockaded. (See Lord Lyons's Dispatch to Lord Russell, dated May 2, 1861, printed in Professor Mountague Bernard's "Historical Account of the Neutrality of Great Britain during the American Civil War." London, 1870, p. 228. wise, and will be forwarded to some enemy's port, which is under blockade. The Springbok and her cargo (5 Wallace, p. 1) may be cited as containing the most explicit statement of this novel doctrine which has taken European jurists by surprise, and which has elicited from the pen of the learned Professor Dr. Bluntschli, of Heidelberg, the remark:-" Si cette manière de voir venait à l'emporter dans la pratique, le commerce neutre sera bien plus menacé que par le blocus sur papier."* The law of blockade would thus appear to have received in the Courts of the United States pari passu, I may say, with the Law of Contraband, a development, which will impose upon neutral trade restrictions of a more burdensome character than heretofore, and this at a time when the European Powers are engaged in a common concert to mitigate the pressure of the laws of maritime warfare upon neutral trade. It is also of importance in the interests of neutrals, that their attention should be drawn to a very dangerous feature in the case of the Springbok, as regards prize procedure. I have ventured to suggest that the civilisation of the present day requires, that a larger equity should be allowed to the neutral claimant in the belligerent Prize Court, than he can claim of right under the rules of the ancient prize procedure. The case of the Springbok, if it is to be received generally as an authority in Prize Courts, is, I regret to say, adverse to my suggestion; it is, in fact, altogether the other way; but I do not despair, that it may for that reason attract attention to the subject of prize procedure, and indirectly promote its reformation. "It has been hitherto of the substance of prize proceedings," to quote the language of Mr. Justice Story, already cited for another purpose, "to hear the case in the first instance upon the evidence forthcoming from the ship, and in no case to allow the captors to invoke evidence aliunde, unless further proof has been allowed to the claimants." But in the case of the Springbok, docu * Le Droit International Codifié, 2me Edition, Paris, § 835. ments were allowed to be invoked by the captors at the original hearing, notwithstanding the objection of the claimants' Counsel, and they formed part of the evidence, upon which the Court surmised against the claimants an ulterior voyage of the cargo to an enemy's port. It is to be feared, that the Supreme Court of the United States in treating this unprecedented proceeding as a mere irregularity on the part of the captors, whilst it drew from the extraneous evidence so admitted its adverse conclusions against the claimants, has countenanced a most inequitable innovation in prize proceedings. In illustration of my remark, I may quote the observations of the eminent jurist * already mentioned, who drew up the brief of the claimants' in the case of the Springbok's cargo, as submitted in 1873 to the mixed Commission on British and American Claims under the Treaty of Washington of 1871. "Now at the original hearing in prize the Advocate for the captors (not the United States Attorney representing the Government) invoked papers from the case of the Stephen Hart to form part of the primary proofs to condemn the Springbok and her cargo. Notwithstanding the strenuous objections of the claimants' Advocate this proof was received, and it entered into the sentence of condemnation, which the Court proceeded to, without giving the claimants an opportunity to give in on their part further proof." "Upon this unprecedented proceeding, which the Supreme Court condemns as irregular and not in accordance with the rules of proceeding in prize, the Court of last resort nevertheless does not hesitate to draw from this extraneous proof its suspicions and its damnatory conclusions." "In truth it must be admitted, as it seems to us, that the Supreme Court entirely missed the point of the principle of prize procedure, to which we have called attention, treated it is an irregularity in form, from which no harm had come, * Hon. William Maxwell Evarts, now Secretary of State for the United States of America. and proceeded to condemn the property without opening to the claimants an opportunity for further proofs." "This trial and condemnation then were unprecedented and subversive of the principles of prize jurisdiction, and the memorialists have been deprived of their property by a method, not known to the Law of Nations and not assented to by neutral Powers." The attention of European Jurists does not appear to have been drawn to this part of the case of the Springbok and her cargo, so much as to the ratio decidendi, namely, the doctrine of "Continuous Voyages." If however the Supreme Court of the United States may have been justified in holding, that, as a Court of Appeal, it could not refuse to look at the documents invoked in the Court below, as part of the record before it, considerations of equity towards the neutral claimants would seem to suggest, that further proof should have been allowed them at the proper time; I say, at the proper time, for it was not until the Supreme Court had disallowed the reasons of the Court below for condemning both ship and cargo, that the claimants of the cargo could have been properly allowed to bring in further proof consistently with the established rules of prize procedure. A brief statement of the facts of the case will facilitate the understanding of this part of my argument. The Springbok was a British barque, bound on a voyage from London to Nassau, in the island of New Providence, one of the Bahama group, and a British possession. She sailed on the 2nd of December, 1862, from London, with a general cargo, amongst which were a few articles in the nature of contraband of war. She was chartered for Nassau, and her charter party was amongst the papers on board. On the 3rd February, 1863, whilst she was in lat. 25° 35′ N., and long. 73° 40′ W., steering direct for Nassau, then distant about 150 miles, she was captured by the United States Ship of War, Sonoma, and sent in to New York in charge of a prize crew. She was forthwith libelled in the District Court of New York as lawful prize of war, and both the ship and her cargo were condemned as good prize. The Judge of the District Court stated the grounds of their condemnation in these words :: "That the said vessel at the time of her capture at sea, was knowingly laden in whole or in part with articles contraband of war, with intent to deliver such articles to the aid and use of the enemy; that the true destination of the said ship and cargo was not to Nassau, a neutral port, and for trade and commerce, but to some port lawfully blockaded by the forces of the United States, and with intent to violate such blockade; and further, that the papers of the said vessel were simulated and false." Mr. Justice Betts, who presided over the District Prize Court, gave no reason at the time for his decision, but he subsequently published an argument in its support, which is printed in Blatchford's District Court Reports (American), p. 434. * Upon this judgment of the District Court, it would have been idle for the claimants to ask to be allowed to produce further proof, for it is a maxim of prize procedure, that further proof is never allowed to claimants where the Court finds that fraudulent papers have been used, or that there is a false destination and false papers. † Until therefore the grounds of the judgment of the District Court had been overruled as regarded its finding that there was a false destination and false papers, there was no locus standi for the claimants of either the ship or her cargo to ask to be allowed to give in further proof, and I am not aware of any precedent, which would have warranted the claimants of the cargo in asking for a re-hearing upon further proof before the Appeal Court itself, after the technical objection to their bringing in further proof had been removed by the reversal * Mr. Justice Story cites, the Welvaart, 1 Ch. Rob. 122; the Juffrouw Elbrecht, 2 Ch. Rob. 125. + The Nancy, 3 Ch. Rob. 122; the Mars, 6 Ch. Rob. 79. |
