"The counsel on both sides at their Lordships' bar understood that the learned judge in this case intended thus to limit the rights of neutrals, and to place neutral vessels only in the same situation as Russians under the Order in Council. Their Lordships would be inclined to give a more liberal interpretation to the language of the judgment; yet, if this be done, the allowance of a general freedom of commerce, by way of export, to all vessels and to all places from a blockaded port, seems hardly consistent with the existence of any blockade at all.

"Again, it is not easy to answer the objections which a neutral might make, that the condition of things which alone authorizes any interference with his commerce does not exist, namely, the necessity of interdicting all communication by way of commerce with the place in question; that a belligerent, if he inflicts upon neutrals the inconvenience of exclusion from commerce with such place, must submit to the same inconvenience himself; and that if he is to be at liberty to select particular points in which it suits his purpose that the blockade should be violated with impunity, each neutral, in order to be placed on equal terms with the belligerent, should be at liberty to make such selection for himself."

Upon the supposition that the blockade was open to no objection in point of law, the court proceeded to discuss whether "the notice which this ship received of its existence was of such a character as to subject her to the penalty of confiscation for disregarding it."

Relative to the special warning in the case of egress from a port blockaded de facto only, their Lordships declared:

c

"If a blockade de facto be good in law without notification, and a wilful violation of a known legal blockade be punishable with confiscation propositions which are free from doubtthe mode in which the knowledge has been acquired by the offender, if it be clearly proved to exist, cannot be of importance. Nor does there seem for this purpose to be much difference between ingress, in which a warning is said to be indispensable, and egress, in which it is admitted to be unnecessary."

In regard to the notice which the claimant had received in the case under consideration, the court was of opinion that the im

pressions and rumors consequent upon the acts accomplished by the belligerent authorities would occasion a belief which "must necessarily be that whatever the blockade might be it was general, and extended to all the Russian ports in the Baltic, and was not confined to a few ports, or to a particular division of the coast," and their Lordships found evidence that this actually was the belief created.

The court made the following statement:

"If this view had been presented to the judge in the argument in the court below, it is probable that it would have commanded his assent, since he entirely approves of the principles on which it is founded. But unfortunately the argument before him took a different direction. The contention then appears rather to have been that there had been no blockade of any Russian ports which could have been known at Copenhagen on the 14th of May; and that if any knowledge, however accurate, had been acquired by the master, through the channel of notoriety, it would not have formed a legal ground of condemnation for an attempt to enter a blockaded port. At all events, their Lordships have the satisfaction of believing that the conclusion at which they have arrived upon this point is not opposed to the authority of the eminent judge whose decision they have to review.

"But, further, although the Government and commercial classes of Denmark could hardly have been ignorant on the 14th of May that the commerce of neutrals had been subject to interruption, and that captains of British ships of war had interfered with their vessels, on the allegation of a blockade of Russian ports, there were not wanting circumstances which might reasonably excite grave doubts whether any such blockade had been established with sufficient authority, or would ultimately be recognized by the British Government."

After these grounds for doubt had been given, their Lordships thought they were such that they "might with great justice affect the credit of any reports in circulation at Copenhagen, and create a not unreasonable doubt whether any blockade of Russian ports had yet been established by a competent authority."

In accordance with the views above expressed, the court decided that "they must advise a restitution of the ship (or rather of

the proceeds, for it appears to have been sold) and of the freight, but certainly without any costs or damages to the claimant. There will be simple restitution, without costs or expenses to either party."

(Abridged statement, including the most important extracts from the opinion, prepared from Roscoe: English Prize Cases [London, 1905], vol. II, pp. 346-70; reproducing the original report, Moore: Privy Council Report, vol. x, p. 37 ff.)

THE WREN

Supreme Court of the United States, December, 1867

Mr. Justice Nelson delivered the opinion of the Court: "The court below condemned the vessel on the ground that she was the property of the enemies of the United States. And this is the only question in the case. For, although it was insisted on the argument that the condemnation might have been placed on the ground that the vessel was taken in contemplation of law in delicto, for violating the blockade of the port of Galveston, Texas, the position is founded in a clear misapprehension of the law. The doctrine on this subject is accurately stated by Chancellor Kent. 'If a ship,' he observes, 'has contracted guilt by a breach of blockade, the offense is not discharged until the end of the voyage. The penalty never travels on with the vessel further than to the end of the return voyage; and, if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent force to vindicate the law.' And the modern doctrine is now well settled, that the only penalty annexed to the breach of a blockade is the forfeiture of vessel and cargo when taken in delicto. The earlier doctrine was much more severe, and inflicted imprisonment and other personal punishment on the master and crew.”

In regard to the ownership of the vessel, in spite of suspicious circumstances which made it "not unnatural or unreasonable to suspect that the so-called Confederate States, or their agents, had some connection, if not interest in her," the court concluded: 66 . . . But in the view we have taken of the case there is no foundation of legal proof of the ownership of the vessel in the

Confederate States on which these circumstances can rest, or be attached, as auxiliary considerations to influence the judgment of

a court.

"Our conclusion is, that the decree below must be reversed, and the vessel restored, but without costs."

(An extract of the principal part of the opinion. Wallace: Supreme Court Reports, vol. vi, pp. 582-88.)

THE SO-CALLED BLOCKADE OF GERMANY (1915-16)

THE Allies have not had recourse to an international law blockade of Germany, but have made use of their effective control of the sea to intercept trade to and from that country, alleging this action to be upon the ground either of seizure as contraband or justifiable retaliation against Germany for her methods adopted "against peaceful traders and noncombatant crews with the avowed object of preventing commodities of all kinds including food for the civil population from reaching or leaving the British Isles or Northern France. The British and French Governments will," so the British Ambassador notified the American Government, ". . . hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be liable to condemnation. The treatment of vessels and cargoes which have sailed before this date will not be affected."

(Extract from note of British Ambassador to the Secretary of State, March 1, 1915, relative to the German War Zone decree.) The action so taken is studied and discussed under The Doctrine of Ultimate Consumption (supra, p. 418) and the British Interdict (post, p. 596.)

§ 33. RESERVED TRADE

THE EMANUEL

High Court of Admiralty, April 9, 1799

Sir William Scott [Lord Stowell] delivered the opinion of the Court:

"This is a case of a ship sailing under Danish (neutral) colors, and taken with a cargo of salt, on a voyage from Cadiz to Castropel in Galicia. The ship has been restored, reserving the question of freight and expenses. The cargo has been condemned as the property of the King of Spain, and the question now is, under these circumstances, whether freight and expenses shall be allowed to the neutral ship."

The court first pointed out that in certain cases, such as the carriage of contraband, there would not be application of the ordinary rule according to which "where a capture is made of a cargo, the property of an enemy, carried in a neutral ship, the neutral shipowner obtains against the captor those rights which he had against the enemy."

After proceeding with the discussion it was pointed out how jealously the European countries had adhered to the policy of restricting the coasting trade to their own navigation. In consequence thereof, the court considered that, the onus probandi did at least lie upon those engaging in such a trade to show that it "was not a mere indulgence, and a temporary relaxation of the coasting system of the state in question; but that it was a common and ordinary trade, open to the ships of any country whatever." Applying this principle to the present case, Sir William Scott asked if there were "nothing like a departure from the strict duties imposed by a neutral character and situation, in stepping in to the aid of the depressed party, and taking up a commerce which so peculiarly belonged to himself, and to extinguish which was one of the principal objects and proposed fruits of victory. Is not this, by a new act, and by an interposition neither known nor permitted by that enemy in the ordinary state of his affairs, to give a