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SCOTT AND LUSHINGTON EXPOUND PRIZE LAW.

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stances of the case, of the weight to be attributed to each species of evidence, and is not supposed to be liable to the error of giving undue importance to any evidence merely because it does not exclude it.

Lastly, though not least, because as all its judgments may be exposed to the test of an appeal, the superior court may, with greater facility, correct any error arising from too great force being attributed to any species of testimony, than it could remedy an evil arising from exclusion.

This judicial exposition of the principles and practice as applied by the English Prize Court to captures for legal or technical breach of blockade by vessels leaving or attempting to enter ports or places notoriously under blockade, declared or established, contains a summary of the most authentic English doctrine, as promulgated by the great master of Admiralty and Prize in the Franciska, Spinks' Prize Cases, p. 136,

et seq.

Other English authorities, in this connection, should be cited. The earlier and later cases are the more pregnant with the dicta and doctrines of prize law, because of the coalition and continental wars between England and her allies with France, at the close of the last and beginning of the present centuries, and the Russian Crimean War in 1854, in which England and France, as the allies of Turkey, carried on hostilities against Russia.

During the former wars and that of the United States with England in 1812, Sir William Scott presided in the British High Court of Admiralty; and during that of 1854, Sir Stephen Lushington presided. These two eminent Admiralty and Prize jurists, in deciding the

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OTHER ENGLISH AUTHORITIES.

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cases of capture brought before them, had occasion to explore the whole system and code of prize law, excepting the peculiar points which were raised and settled in the American courts, during the great Rebellion.

It will not, therefore, be inappropriate to give a full view and synopsis of all the English prize cases concerning blockade in the present treatise, in addition to those which have already been referred to. The cases upon blockade reported in the first and second volumes of Christopher Robinson, have been heretofore particularly referred to; those in the four subsequent volumes of that accomplished reporter will hereafter be noted.

The Juffrow Maria Schroeder (3 Ch. Rob. 147) was a Prussian vessel, seized for a violation of the Havre blockade in 1799, and restored by reason of a relaxation of a strict blockade, from the inattention practiced by British cruisers. Sir William Scott (ibid. pp. 157, 8) said : “ It is in vain for governments to impose blockades if those employed on that service will not enforce them. The inconvenience is very great and spreads far beyond the individual cases; reports are eagerly circulated that the blockade is raised; foreigners take advantage of the information; the property of innocent persons is ensnared, and the honor of our country is involved in the mistake."

The Neptunus (ibid. 173) raised a question as to the sufficiency of time for notice to Portugal; the Adelaide (ibid. 28), as to notice to America ; the Ocean (ibid. 297), the same point.

The legal consequences of a blockade must depend on the means of blockade, and on the actual or possible application of them by a blockading force. Neutral

WHAT FAVORS RESTITUTION.

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property shipped from a hostile port, after blockade, generally may be presumed to be impressed with the enemy shipper's character, and so confiscable. But this presumption is neither conclusive nor universal. On the contrary, to hold it so, would be applying the rule of law too strictly to innocent neutral merchants.

If orders are sent from neutral ports to blockaded ports, prior to the declaration or establishment of blockade, and those orders are answered by an enemy shipper, after the blockade, but before the neutral merchant may have had time to countermand the orders, it would be rigor and not law to hold the neutral merchant culpable and his goods confiscable. And explanation by letters, dates, papers, and statements derived from credible neutral sources, ought to avail to exonerate the neutral merchant and entitle him to restitution after capture. But (ibid. p. 298) Sir William Scott

says:
“The

representation of the enemy shipper could not have availed to exonerate the neutral merchant, if otherwise liable. Were this to be allowed, it would be in the power of the enemy to put an end to the blockade as soon as he pleased. If the general law is, that egress as well as ingress is prohibited by blockade, the neutral merchant is bound to know it, and if he entertains any doubt, he must satisfy himself by applying to the country imposing the blockade, and not to the party who has an interest in breaking it.”

Three things favor the restitution of captured property claimed by neutrals :

1st. A presumption of innocent neutral intentions as to the blockade.

2d. Proof of fair and not fraudulent conduct on the part of a neutral claimant.

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3d. A positive mercantile necessity of his escaping with the purchased merchandise from a closed to an open port, in order to realize the fair result of his traffic as a neutral, though he may excite the suspicions of a vigilant cruiser and expose himself to temporary detention by seizure.

In the Hurtige Hane (3 Ch. Rob. 324), persons residing in the kingdom of Morocco, as to blockade, were not considered to be strictly on the same footing as European merchants; but, in some respects, were entitled to a relaxed application of the law of nations.

In 4 Ch. Rob. 63, the Frau Ilsabe ; ibid. 65, the Stert; ibid. 79, the Jonge Pieter; ibid. 89, the Potsdam, and ibid. 93, the Alexander, are all cases relating to blockade, and that of the Jonge Pieter is quite suggestive.

In 5 Ch. Rob. 27, (the Fortuna), the allegation to excuse a breach of blockade by making for a blockaded port was a want of provisions and adverse winds, constituting a case of necessity or distress in the judgment of the master. A pilot had been taken to conduct into the Ems, but owing to the prevalence of strong westerly winds, he was unable to enter there, and was compelled to make for the Weser. The want of provisions is an excuse not to be received on light grounds. It máy induce a master to seek a neighboring port, but can hardly compel him to resort exclusively to the blockaded port.

To justify this, there should be a strong, invincible, paramount necessity, compelling him to enter the particular port under blockade.

But the allegation as to the westerly winds prevailing for nine consecutive days was deemed to be of a different nature; the court admitted its sufficiency, and re

; stored the ship.

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The Hurtige Hane, supra; the Christiansburg, 6 Ch. Rob. 376; the Elizabeth, 1 Edw. 198, and the Charlotta, ibid. 252, may also be referred to on the subject of distress and necessity.

In the Nossa Senhora da Adjuda (5 Ch. Rob. 52), a neutral Portuguese vessel was seized on a voyage from Rouen to Lisbon for violation of the blockade of Havre. The blockade of this port, which is at the mouth of the River Seine, is practically a closing of all the ports above the entrance to that river, Rouen being one of such ports. Therefore, condemnation would follow the seizure unless good ground for excuse should appear and be proved to the court., Blockade was declared September 6, 1803. Before its commencement, the vessel had gone to Havre, and had been engaged in loading from the 1st to the 29th of September. She sailed from Rouen to Havre October 1st, proceeded on the 19th on her voyage to Lisbon, and was captured by ships cruising off the blockaded port. The master denied that he had received information of the blockade before he left Rouen. And the claim given in was for the ship and part of the cargo by the master, and for the rest of the cargo as being on board a free ship, and therefore protected by the treaty with Portugal of 1654, in which there was a stipulation that free ships made free goods.

But Sir William Scott, perceiving that the cargo was documented in the bills of lading as the property of Portuguese merchants, restored it, and declined to order further proof in the case for the purpose of raising the question of law, as to “whether the privilege of free ships free goods (under treaty) can be construed to extend to the case of exporting enemies' goods from a

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