vessels had not been laden at a port belonging to or occupied by the enemies of Great Britain, or on the other hand were not proceeding to such port from the blockaded line, and provided those vessels had not previously violated the blockade". This order was further restricted on 15 Sept. 1806 by a Notification, that the blockade was raised on that part of the line, which extended from the Elbe to the Ems inclusively. blockade § 119. It was observed by Lord Stowell in the Effect of a Byfield that a license expressed in general terms, on licenses. which purports to authorise a vessel to carry a cargo into or out of any of the enemy's ports, will not authorise her to enter or come out of an enemy's port, which is under blockade. In order that a blockaded port should be exempted from the restrictions, which are incident to a state of blockade, it must be specially designated with such exemption in the license, otherwise a blockaded port shall be taken to be an exception to the general description in the license 92. This dictum of Lord Stowell seems rather to conflict with the view taken by him at an earlier period in the case of the Hoffnung, when he held, that when a license had been granted to certain vessels, pursuant to a Power given to his Majesty in Council under an Act of Parliament, to import Spanish wool from ports of Holland, it operated to protect the parties acting under it from the effects of a blockade, which had been notified on the same day on which the license was granted. I think," he says on this occasion, "that I am bound to presume that it was intended the parties should 91 Manning's Law of Nations, P. 332. 66 93 The Hoffnung, 2 Ch. Rob. P. 162. 20 Aug. 1799. The 92 The Byfield, Edwards, p. Juno, 2 Ch. Rob. p. 116. 188. 9 Dec. 1809. have the full benefit of importing these articles without molestation from a blockade, which could not be unknown to the great Personage, under whose authority, and in whose name this license issued. I add further, that I think this license bears very materially on some other licenses which had been previously granted; for when I see that the blockade was not considered as a ground for withholding those licenses, I am led to suppose that it was not intended to have the effect of suspending the operation of such as had been already granted." Sir Alexander Croke, the learned Judge of the Vice-Admiralty Court of Halifax, in considering the mutual bearing of these two judgments of Lord Stowell upon each other, conIcluded that the dictum of Lord Stowell in the Byfield must be construed in connection with the particulars of the case, and that all, which Lord Stowell decided in that case was, that as the Byfield was lying in an open port of the enemy at the time the license was granted to it, the subsequent transaction within a blockaded port, which it was sought to protect by the license, was not in contemplation, when the application for the license was made, and therefore the intention of the Government which issued the license, to protect the transaction could not be presumed. Sir Alexander Grant accordingly held, that the judicial opinion expressed by Lord Stowell in the Hoffnung remains untouched by his decision in the Byfield; and that notwithstanding there is no express provision in a license or a blockading order to that effect, yet whenever it appears to have been the intention of his Majesty or of those who exercise his authority, that the permission given by a license should not be suspended by an order of blockade, it is not affected by a blockade. To the same purport the Lords of Appeal in Prize Cases (the Judicial Committee of the Privy Council) decided in the case of the Franciska (30 Nov. 1855) that the Order in Council of 29 March 1854, under which "Russian merchant vessels in any ports or places of her Majesty's dominions should be allowed until the 10th day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and that such Russian merchant vessels if met at sea by any of her Majesty's ships should be permitted to continue their voyage, if on examination of their papers it should appear that their cargoes were taken on board before the expiration of the above term: Provided that nothing therein contained should extend or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government," gave to all Russian vessels which did not come within any of the specified exceptions, full liberty to sail in security to their port of destination, although such port might be in a state of blockade 95. licenses on § 120. By the Law of Nations, "a belligerent may Effect of not concede to another belligerent, or take for himself, a blockade. the right of carrying on commercial intercourse prohibited to neutral Nations; and therefore no blockade can be legitimate that admits to either belligerent a 94 The Orion, Stewart's Reports, p. 506. In this case Sir A. Croke held that a license to an enemy protected him in egress from a port subsequently blockaded, as the nature of the trade afforded a presumption of 95 The Franciska, 10 Moore, freedom of commerce denied to the subjects of States not engaged in the war. The foundation of this 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 in the nature of trade being by war itself suspended "." Such is the forcible language of Dr. Lushington in the case of the Franciska. To this principle the Lords of Appeal (the Judicial Committee) gave their full adhesion, and in applying it to the state of things arising out of the British orders in Council, issued at the commencement of the war with Russia, under which free ingress into Russian ports for a certain time was granted to Russian vessels sailing from ports in the British dominions, and free egress from Russian ports for a certain time was granted to Russian vessels bound with cargoes to British ports, they held that during such interval of time, as was covered by these Orders in Council, no valid blockade of the Russian ports in the Baltic could be established by the British fleet. It is obvious that so long as enemy-vessels are allowed by a belligerent Power freely to enter or to come out of enemy-ports, the condition of things, which alone authorises a belligerent to interfere at all with the trade of neutrals does not exist, namely, the necessity of interdicting all communication by way of trade with the ports in question, in order to compel the enemy to submission. In arriving at the conclusion, that the British Orders in Council issued on this occasion granting for six weeks to enemy vessels free access to their ports of destination forbade the establishment of any blockade of the Baltic ports during such time by British 96 The Franciska, Spinks's Eccl. and Adm. Reports, II. p. 135. vessels, to the prejudice of neutral commerce, the Lords of Appeal made a distinction which is worthy of notice: "No doubt," they said, "ships of one belligerent at the outbreak of war, found in the ports of another, into which they have entered for peaceful purposes, with the expectation of the continuance of peace, form an exceptional class which has a strong claim to an indulgent exercise of the right of capture; and an express permission to such ships to enter their port of destination, though blockaded, might perhaps not affect the validity of the blockade. It might fall within the class of cases alluded to by the learned Judge of the Court below, of license granted in particular cases upon special grounds. Such a case is very distinguishable from one where a belligerent, with a view to the interests of his own commerce, permits enemies' ships to bring him cargoes from their own ports, though he at the same time insists on a blockade of such ports against neutrals 97.” 97 10 Moore, P. C. p. 56. |