542 SUBSTANTIAL RETRACTION OF JUDICIAL COMMITTEE,

in costs and damages, will any man rationally expect a blockade would be adequately enforced?"

Again in the Fortuna (ibid. 312), Dr. Lushington said: "The whole question of costs and damages was then (in the time of Lord Stowell) in practice differently treated; but this circumstance will not justify me in altering the practice of excluding captor's evidence," according to the rule prescribed in the Ostsee; and (ibid. 313), adding: "I may indeed, on this question, have much to learn, and perhaps more to unlearn."

Again, in the Aline and Fanny (ibid. 328), he said: "These questions were at all times replete with difficulty, and that difficulty is now greatly augmented when the consequences may be, not simple restitution to the claimant, but condemnation of the captors in costs and damages, a consequence which formerly would not have followed."

Now the Judicial Committee on February 23, 1855 (the Ostsee, Spinks' Prize Cases, 191), had said: "When once in the opinions of the judge with whom the decision rests, a particular case is brought clearly within a particular rule, it should seem that his discretion is at an end."

But in July, 1856, in the Aline and Fanny, alias The Queen v. Hildebrant (10 Moore's Pr. C., 501), the same committee said: "With reference to an observation which we find in the judgment, it may be proper to remark that there does not appear to us to be anything in the decision of the Ostsee which ought at all to affect the exercise of the discretion of the court, in directing, or refusing to direct further proof.

"Whatever the law upon that subject was before that decision was pronounced, such, in our opinion, it still remains."

CAUSED BY DR. LUSHINGTON'S DISSENT AND PROTEST. 543

The merciless criticism and comment upon this novel point of practice prescribed in the Ostsee by the Judicial Committee, their subsequent explanation and qualification, and ultimate substantial reconsideration or retraction of it, are not precisely suited to enhance the respect which ought ever to be accorded to an overruling decision of the superior court; and, therefore, it cannot be deemed presuming to have affirmed that the rule of practice as prescribed in the judgment of the Committee of the Privy Council, was at least equivocal, if not historically and technically unsound.

The comment of Dr. Lushington in Spinks' Prize Cases, 335 (the Aline and Fanny), was to this effect. "It is true, however, as has been forcibly argued by Her Majesty's advocate, that circumstances have been somewhat changed, and that captors run greater danger of being condemned in costs and damages than they did formerly. But however this may be, and, for aught I say to the contrary, it may be a reason for the Judicial Committee to depart from the authority of the Haabat, yet I do not think it is competent for me to adopt such Were the admission of captor's evidence an indisputable corollary to the case of the Ostsee, it would be both my duty and inclination to acknowledge it; but I do not think that such a consequence can be fairly predicted to follow from that judgment itself, and from the fearful consequences which, in the opinion of Lord Stowell and myself, would necessarily follow from the alteration of the practice.

a course.

"If, therefore, the practice is to be altered in this particular, and if the captor's evidence is to be received, it must be the act of a higher authority than mine, it must emanate from the Judicial Committee."

544

OTHER CASES OF PRIZE, GROWING

In this singular collision between the Committee of the Privy Council and the High Court of Admiralty, the latter prevailed, and the former yielded; and the only regret now felt is, that the concession had not been proffered frankly and with unreluctant grace, by an explicit recognition, on the part of the Judicial Committee, of the precise rule of practice claimed to be correct, which was that the reception or rejection of captor's proofs, as to claimant's costs and damages, is now and ever has been a matter of judicial discretion for the judge of the Admiralty Court.

To complete the references to the English blockade cases, notice must be taken of two other cases, the Franciska and Johanna Maria (Spinks' Prize Cases, 287), also same cases in 10 Moore, 37 and 70, cited as Northcote v. Douglas, and Tottie v. Heathcote. These were cases of alleged breach of the Baltic blockade in 1854, in which condemnation was decreed in the inferior court, but which decree was not affirmed by the superior court; it being considered that there was not, at the time of the capture, any legal blockade, as Admiral Sir Charles Napier's notice. did not conform to the facts proved. The one was a case of ingress, the other a case of egress. And the following points seem to have been then decided substantially: If doubt exists as to the time when a blockade commenced, further proof should be allowed to both parties; a ship cannot be condemned for breach of blockade, unless, at the time of the alleged offense, 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; that the admiral must be presumed to have carried with him sufficient authority to establish blockades of the Russian ports; that neutrals cannot be

OUT OF THE BALTIC BLOCKADE.

545

legally excluded from a commerce which is open to belligerents; and if a modified blockade is to be enforced, neutrals have a right to be fully apprised of the nature of such modification; a neutral cannot be obliged to speculate on the probability of the establishment of a legal blockade de facto, when he is not permitted to speculate on the chance of its discontinuance; that knowledge of a blockade, being the essence of the offense of breach of blockade, the source of such knowledge is immaterial; and though personal knowledge may be presumed from general notoriety, yet the fact alleged to be known must be one which admits of no reasonable doubt; that inferential notice must be such as would have been legal if given as a particular warning to an individual; wherefore, the notice of a blockade must not be more extensive than the blockade itself; that notoriety, as far as it existed, was to the effect that all the Russian ports in the Baltic were blockaded, which was not the fact; and as the master could have received no other inferential notice, he was legally entitled to disregard that. Accordingly, restitution was ordered in both cases.

The non-publication of the English Prize Reports as to the Baltic blockade, or their non-importation into this country, may possibly be explained by the unfortunate difference of the admiralty and appellate courts as to the rule of practice attempted to be engrafted upon the subsisting prize code and practice. At all events, such reports were not procurable, either in England or her American colonial possessions, during the continuance of the Rebellion, which raged till 1865 in the United States.

The authorities as to costs and damages of claimants,

546

AUTHORITIES AS TO COSTS AND DAMAGES.

American and English, are The La Manche, supra; The Charming Betsey, 2 Cr. 64; Malay v. Shattuck, 3 ibid. 489; United States v. Riddle, 5 ibid. 489; United States v. Locke, 7 ibid. 339; The Mary, 9 ibid. 126; The George, 1 Mason, 24; The Bothnia, ibid. 78; The Apollon, 9 Wheat. 372; The Marianna, 11 ibid. 1; The Nicola Mole cases; The Huldah, 3 Ch. Rob. 235; The Driver, 5 ibid. 145; The Apollo, 4 ibid. 160; The Actæon, 2 Dods. 48; Le Louis, ibid. 210; The John, ibid. 336; The Maria, 11 Moore, P. C. 287; and The Betsey, and The Neptune, supra, 2 Pet. Adm.

The former decisions by Mr. Justice Story and the United States Supreme Court upon questions of blockade, are not unfamiliar to the profession, as they have long been accessible through Gallison's, Mason's, and Wheaton's Reports. The general doctrines there found are not unlike those of Sir William Scott in England as to closing ports; interdicting commerce of neutrals, citizens, or allies by blockade or embargo; instituting, notifying, and maintaining blockade; capturing of property as prize, sending it in for condemnation or restitution by proper prize tribunals; waiving of belligerent rights in favor of neutrals, but parting with, extending, or suspending none of the law of nations to the injury of neutrals; subjecting claimants to costs and expenses, and captors to costs and damages upon restitution.

BLOCKADE CASES DURING THE AMERICAN REBELLION.

BUT the American Rebellion presented novel questions touching blockade, of a political, legal, and partially diplomatic character. All discussion of questions