extended, into the history of the treaties, to weigh and digest all this evidence, and to come to my conclusion, I think it would not be expected that I should be as concise or as accurate in my expressions as I otherwise might have wished to be. But I felt, from the great interest taken in these cases, and knowing what mischief must accrue from delay, that it was better to pronounce my judgment, the substance of which I believe right, than, by taking further time, to expose those interests to deterioration.

Subsequently the learned Judge condemned the Johanna Maria, see below, p. 432n; the Steen Bille, Spinks, Prize Cases, p. 161; the Union, ib. 164; the Jeanne Marie, ib. 167; the Nornen, ib. 171; the Vrow Alida, and the Annechina Jantina, ib. 171n.

BEFORE THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.(a)

July 26th-August 1st, 1855. The claimant in the case of The Franciska appealed to the Judicial Committee from the sentence of condemnation. The appeal was argued together with the appeal in the case of The Johanna Maria, which had also been condemned for breaches of the blockade of Riga, both by ingress and egress.

The arguments at the hearing of the appeal were chiefly directed to two points:

First, whether, at the hearing of the claim, further proof as to the time at which the port of Riga was put in a state of blockade ought to have been allowed to the captor. The cases cited upon this question were The Henrick and Maria (b), The Haabet (c), The Apollo (d).

Secondly, whether, upon the further proof, there was sufficient evidence that the port of Riga, if at all put in a state of blockade at the time of the capture of the Franciska, was known to be in a state of blockade by those in charge of the ship, and if the conduct imputed to them constituted such a breach of blockade as to make the ship liable to condemnation. Upon this point the evidence in the cause

(a) Present: The Right Hon. the Lord President of the Council (the Earl Granville), T. Pemberton Leigh (afterwards Lord Kingsdown), Sir Edward Ryan, Sir John Patteson, Sir John Dodson, and Sir William H. Maule. (b) 1 C. Rob. 146. (c) 6 C. Rob. 54. (d) 5 C. Rob. 286.

was referred to, and the following cases and authorities were cited :

The Courier (a), The Adriana (b), The Vrouw Judith (c), The Columbia (d), The Henrick and Maria (e), The Betsey (f) The Christina Margaretha (g), The Frederick Molke (h), The Apollo (i), The Tutela (j), The Juffrow Maria Schroeder (k), The Jonge Petronella (1), The Neptunus (m), The Rolla (n), The Charlotta (o), The Hoffnung (p), The Triheten (q), The Adelaide(r), The Flad Oyen (8), The Welvaart Van Pillaw (t), The Hurtige Hane (u), The Nancy (v), Naylor v. Taylor (w), The Fox (x), 1 Kent, Com., 147; 1 Kent, Law of Nations, p. 113; Wheaton, International Law, vol. 2, p. 238, ed. 1836; Pistoye et Duverdy, Traité des Prises Maritimes, p. 378; Ann. Reg. 1793, Chron. 174.

The case, with that of The Johanna Maria, (y) stood over for consideration.

November 30th, 1855.
JUDGMENT.

Right Hon. PEMBERTON LEIGH: In the month of March 1854 the Danish schooner Franciska, Mechelsen master, was lying in the port of Barcelona, in Spain. On the 4th of that month, a charter party was signed by the master and certain merchants at Barcelona, whereby the ship was hired for a voyage with a cargo of wine and salt

"to Elsinore for orders, and thence for Lubeck north than Stockholm or Revel." or some other safe port in the Baltic, not further

Twenty-four hours were allowed for receiving orders at Elsinore, and the

(a) Edw. 249, 251. (b) 1 C. Rob. 313. (c) 1 C. Rob. 150-4. (d) 1 C. Rob. 154-6. (e) 1 C. Rob. 146. (f) 1 C. Rob. 93. (g) 6 C. Rob. 62-4. (h) 1 C. Rob. 86-8. (i) 5 C. Rob. 286. (j) 6 C. Rob. 177. (k) 3 C. Rob. 147. (1) 2 C. Rob. 131. (m) 2 C. Rob. 110. (n) 6 C. Rob. 364. (0) Edw. 252.

(p) 6 C. Rob. 112. (q) 6 C. Rob. 65-7. (r) 3 C. Rob. 281. (s) 1 C. Rob. 135. (t) 2 C. Rob. 128.

(u) 3 C. Rob. 324-6.

(v) 1 Acton 64.

(w) Moo. & M. 207.

(x) Edw. 311.

(y) 10 Moo. P. C. 70.

captain was to consign his ship, on the passage of the Sound, to Messrs. Ahman and Lindberg, at Elsinore.

On the 14th March the master took on board a quantity of wines at Tarragona, and having completed her cargo with salt at Torreviega, on the 13th April sailed from that port for Elsinore. On the 13th May the ship passed the Sound, where she cleared for the Baltic" generally, without naming any port. On the 22nd May she was seized near the entrance to the Gulf of Riga by Her Majesty's steam frigate Cruiser, under the command of Captain Douglas, for an alleged breach of the blockade of Riga, and sent home for adjudication. On the 3rd August a claim was entered for the ship by Mr. Charles Northcote, a ship-broker in London, on behalf of Jorgen Peter Arboe, of Copenhagen, as the sole owner.

On the 6th October the case was heard on the claim; when the judge admitted the claim, but allowed the Proctors on both sides "to bring in further proofs, but only as to the blockade."

Further proofs were accordingly brought in, and on the 27th January 1855 the judge condemned the ship and freight. From this sentence of condemnation the present appeal is brought.

At the hearing of the appeal it was contended by the appellant:

1. That the ship ought to have been restored on hearing the claim, or that, at all events, further proof ought not to have been allowed to the captors.

2. That upon the further proof (if properly received) restitution ought to have been decreed with costs and damages.

As to the first point, the course of proceeding to be observed on the original hearing is very clear. In everything that regards the ship and cargo the case is to be considered, in the first instance, exclusively upon the evidence furnished by the ship itself, namely, the papers on board, and the examination on the standing interrogatories of the master and some of the crew. If the case be clear upon this evidence, restitution or condemnation is decreed at once. If upon such evidence the case be left in doubt, further proof is usually allowed to the claimant only, but it may also be allowed to the captors, if, in the opinion of the judge who hears the case, such a course appears to be required. With respect to the matters which cannot appear upon evidence furnished by the ship, as the existence or non-existence, the sufficiency or insufficiency, of a blockade, the Court must necessarily resort to other means of information. In this case the ship was labouring under the utmost suspicion. She had no Latin pass, which the Danish

Government provides for a ship of that country; she had no paper whatever on board showing the port for which she was bound; she did not appear to have had any communication with the firm of Ahman and Lindberg at Elsinore, from which, by the terms of her charter party, she was to receive orders as to her further destination. The master stated that he had received his orders from Arboe, the owner of the ship, at Copenhagen (who, as far as appeared, had no authority to give any), and that his orders were to proceed to Memel; but if there was no blockade, and if the English warships would permit him, to proceed to Riga; and that before he was captured he was sailing for Memel. Yet it clearly appeared that he had never steered for Memel at all, but had passed that port without approaching it, and had been captured at the Lyser Ort, at the mouth of the Gulf of Riga. There was every reason, therefore, to suspect, if Riga was at this time in a state of blockade, that the master had notice of it, and intended to break it; but the existence of the blockade and its legality, as well as the master's knowledge of it, were disputed by the claimant. On reference to the London Gazette, there appeared to be some confusion as to the time when the blockade had commenced, and under these circumstances the learned judge allowed

further proofs, but only with respect to the blockade, to both parties."

Their lordships are of opinion that he was perfectly right in taking this course.

The second question is, what is the effect of the whole evidence ultimately before the Court? Whatever may be the demerits of the ship, she cannot be condemned unless at the time when she committed the alleged offence the port for which she was sailing was legally in a state of blockade, and was known to be so by the master or owner.

The offence imputed to the ship in the affidavit of Captain Douglas, the captor, is that she was sailing for Riga,

the fact of the blockade of the Gulf of Riga was "and the deponent had reason to believe that known at Copenhagen on the 13th day of May, the day of her departure from that port."

The grounds of the condemnation are thus stated in the judgment :

that the blockade was notorious at Elsinore on "I condemn this ship, first, because I hold May 14th, the day this vessel sailed; secondly, because the master has deposed falsely, and was proceeding to violate the blockade with a full knowledge thereof. Under such circumstances, he can derive no benefit from the treaty with Denmark."

1. Was the port of Riga on the 14th May legally in a state of blockade?

2. If so, had the master or owner at that time such notice of the fact as to subject his ship to condemnation ?

With respect to the evidence on the first point, it is established that on the 15th or 17th of April (on which of those days it is not material to determine, and there is some discrepancy in the affidavits) the Admiral did establish, by a competent force properly stationed for the purpose, an effective blockade of the ports of Libau, Windau, and the Gulf of Riga; that with the exception of the 3rd and 4th of May, on which days all the blockading ships were absent from the stations, the blockade was maintained to a time subsequent to that at which the Franciska was seized, and their lordships agree with the learned judge in the Court below in thinking that the Admiral must be presumed to have carried with him from England authority from Her Majesty's Government to institute such blockade of the Russian ports as he might deem advisable.

But while the Admiral was taking these measures in the Baltic, the English and French Governments were taking measures at home of which he was ignorant, and which, it is contended, seriously affect the validity of the blockade in point of law. By an Order of Her Majesty in Council, issued on the breaking out of war, and dated the 29th March 1854, (a) provision had been made for the case of Russian merchant vessels which at the date of the Order should be in British ports, or which, prior to the date of the Order, should have sailed from any foreign port, bound for any port or place in Her Majesty's dominions; and by another Order, dated the 15th April, (b) after reciting the former Order as far as regards the last-mentioned class of vessels, and that Her Majesty, with the advice of her Privy Council, was now pleased to alter and extend it, it was ordered, by and with the advice as aforesaid, as follows:

"That any Russian merchant vessel which, prior to the 15th May 1854, shall have sailed from any port of Russia situated either in or upon the shore or coast of the Baltic Sea, or of the White Sea, bound for any port or place in Her Majesty's dominions, shall be permitted to enter such last-mentioned port or place, and to discharge her cargo, and afterwards forthwith

(a) See below, App. E., p. 1225. (b) See below, App. E., p. 1225.

It has been held, and in their lordships' opinion properly held, in the Court below, that the permission given by this Order to export goods from Russian ports in the Baltic and White Sea would authorise such exports from places which might at the time be in a state of blockade. Indeed, as it appears to have been the intention of the Allied Powers as soon as possible after the commencement of the war to blockade all the Russian ports in the Baltic, any other construction would make the Order almost nugatory.

The same construction must, in their lordships' opinion, be put upon the corresponding Ordonnance of the French Government issued on the same 15th of April, by which Russian vessels bound for any place in France or Algeria were to be at liberty to leave any Russian ports in the Baltic and White Sea before the 15th May, and pursue their voyage, and return to any port not blockaded.

By a Russian Ukase issued on the ground of the Orders made by the Allied Powers, six weeks from the 25th April were allowed to English-and French vessels in Russian ports in the Baltic "for taking on board their cargoes, and for an unobstructed departure for foreign ports."

The English Order in Council of the 15th April had provided only for Russian vessels bound to British ports, and the French Ordonnance of the same date for Russian vessels bound to French ports; but by a further French Ordonnance, dated the 26th April (containing instructions to French cruisers), free passage was ordered to be given to all Russian vessels loaded in Russian ports on French account for French ports, or on English account for English ports, up to the 15th of May.

As regards export, therefore, from the Baltic ports, by the effect of these several Ordinances, all restriction up to the 15th May, on the conveyance of cargoes in Russian vessels to British and French ports, was removed; and though British and French vessels would, by the general Law of Nations, be liable to confiscation for breach of blockade, by sailing from blockaded ports with cargoes taken on board after notice of the blockade, and the permission to export is, by the Orders, in terms confined to Russian vessels, it seems improbable that the Allied Powers could intend to deprive their subjects of the indulgence granted to them by the Russian Government, or to subject their property to confiscation for doing what the enemy was permitted to do with impunity.

In effect, therefore, neutrals only would be excluded from that commerce which belligerents might safely carry on; and the question is whether by the Law of Nations such exclusion be justifiable; and, if not, in what manner, and to what extent, neutral Powers are entitled to avail themselves of the objection.

That such exclusion is not justifiable is laid down in the clearest and most forcible language in the following passage of the judgment now under review (a) —

"The argument stands thus: By the Law of Nations a belligerent shall not concede to another belligerent, or take for himself, the right of carrying on commercial intercourse prohibited to neutral nations; and, therefore, no blockade can be legitimate that admits to either belligerent a freedom of commerce de nied to the subjects of States not engaged in the war. The foundation of the principle is clear, and rooted in justice; for interference with neutral commerce at all is only justified by the right which war confers of molesting the enemy, all relations of trade being by war itself suspended. To this principle I entirely accede; and I should regret to think that any authority should be cited from the decisions of any British Court administering the Law of Nations which could be with truth asserted to maintain a contrary doctrine."

The learned judge, after discussing the question how far licences to enter blockaded ports would invalidate a blockade, and pointing out the important distinctions between blockades according to the ordinary Law of Nations, and the blockades introduced during the last war by the Berlin and Milan decrees on the one hand, and the British Orders in Council on the other, and between special licences granted for a particular occasion and licences granted indiscriminately, pro

ceeds

I think that if the relaxation of a blockade be, as to belligerents, entire, the blockade cannot lawfully subsist; if it be partial, and such as to exceed special occasion, that, to the extent of such partial relaxation, neutrals are entitled to a similar benefit."

And he concludes his able discussion of this part of the case in these words

"With respect to the present question I, therefore, have come to the conclusion that as Russian vessels might have left the ports of Courland up to the 15th of May, the subjects of neutral States ought to be entitled to the same advantages, and if there be any vessel so circumstanced, I should hold her entitled to restitution. I think the remedy should be commensurate with the grievance.”

The learned judge holds that such relaxation does not affect the general validity of the blockade.

In order to judge how far this conclusion (a) See above, p. 385.

can be maintained, it is necessary to consider upon what principles the right of a belligerent to exclude neutrals from a blockaded port rests. The right is founded not on any general unlimited right to cripple the enemy's commerce with neutrals by all means effectual for that purpose, for it is admitted on all hands that a neutral has a right to carry on with each of two belligerents during war all the trade that was open to him in times of peace, subject to the exceptions of trade in contraband goods and trade with blockaded ports. Both these exceptions seem founded on the same reason, namely, that a neutral has no right to interfere with the military operations of a belligerent either by supplying his enemy with materials of war, or by holding interconrse with a place which he has besieged or blockaded.

Grotius expresses himself upon the subject in these terms

"Si juris mei executionem rerum subvectio impedierit, idque scire potuerit qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et jam deditio aut pax expectabatur tenebitur ille mihi de damno culpâ dato.”(a)

Bynkershoek's commentary on this passage is to the effect that it is unlawful to carry anything, whether contraband or not, to a place thus circumstanced, since those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries —

"Sola obsidio in causâ est, cur nihil obsessis subvehere liceat, sive contrabandum sit, sive non sit, nam obsessi non tantum vi coguntur ad deditionem, sed et fame, et alia aliarum rerum penuria."(b)

Wheaton, in his Elements of International Law, (c) justly observes that this passage in Bynkershoek goes too far, and that a blockade is not confined to the case view to the capture of a place or the exwhere there is a siege or blockade with a pectation of peace. But these passages interference with the ordinary rights of seem to point to the reason on which this neutrals was originally justified.

Vattel lays down the same doctrine (d)— “Quand je tiens une place assiégée, ou seulement bloquée, je suis en droit d'empêcher que personne n'y entre, et de traiter en ennemi quiconque entreprend d'y entrer sans ma permission, ou d'y porter quoi que ce soit: car il s'oppose à mon entreprise, il peut contribuer à la faire échouer, et par là me faire tomber dans tous les maux d'une guerre malheureuse."

(a) De Jure Belli et Pacis, Bk. 3. c. 1. § 5. (b) Quæstiones Juris Publici, Bk. 1. c. 11. (c) Vol. 2, pp. 228-230, ed. 1836; ed. Boyd, SS 509, 510.

(d) Bk. 3. c. 7. § 117.