532 RUSSIAN BLOCKADE CASES, 1854. tigated as may be seen by a substantial statement of them elsewhere.1 After the peace of 1815, Great Britain was not again called upon to take her accustomed part in any maritime war as a belligerent for nearly forty years; and therefore Dr. Lushington had no occasion to act judicially in prize causes, until the blockade of the Russian ports in the Baltic in 1854, when he appears to have engaged in his judicial labors with his well known aggressive integrity and conscientious vigor and alacrity as a British judge; and in the first prize case, requiring his judicial attention (the Franciska), he elaborately explored almost the entire field of the law of prize, as applicable especially to coast and gulf blockades. In 2 Spinks, there are nine or ten cases of prize, eight of which are peculiarly and almost exclusively blockade cases. The Franciska, p. 113; the Steene Bille, ibid. 159; the Union, ibid. 161; the Jeane Marie, ibid. 165; the Nornen, ibid. 169; the Ostsee, ibid. 170; the Ionian Ships, ibid. 212; and the Leucade, ibid. 228; and the points settled, or general propositions therein established or reaffirmed, have already been stated." Two exceptional subjects already alluded to were the feasibility of legally closing inland gulfs at their mouth, (as Bothnia), and the more important but novel doctrine as to costs and damages, following as of course in case of restitution, where there is a want of probable cause in cases of capture. To what extent the Black and White seas and the Baltic or Eastern Sea could be closed by legal blockade, presents a problem difficult of solution, only because neutral territory adjoins portions of the waters of those 1 Ante, pp. 466 et seq. 2 Ante, pp. 485 et seq. DIFFICULTY IN CLOSING GULFS. 533 seas. To invest the White Sea, thereby blockading the port of Archangel, is mere plain sailing, not likely to embarrass any jurist. To close the Black Sea at its mouth is objectionable, not because that sea itself is shut up, but because, by closing it extrinsically, the Danube as well as the Dnieper and other internal rivers would become effectually sealed up also, and neutrals in Central Europe might thereby be damaged in their river and inland trade and navigation, without realizing any compensation therefor, or affording aid to the belligerent, who may have resorted to the measure with neither the desire nor disposition to inflict injury, jure belli, upon neutrals. To close the Baltic at the Sound or Copenhagen (which would doubtless be the easier and more effective way of cutting off all communication and correspondence with the Russian ports), would obviously trench upon Swedish, Danish, Prussian, and German neutral rights and privileges, to an extent hardly to be tolerated. In any war with Russia, the gulfs of Finland and Riga may be closed without cavil or protest; but not so with the Gulf of Bothnia, which, when attempted, would demand the tacit or stipulated acquiescence of Sweden, as it borders on the western side of its waters. The freedom of neutral trade should be unmolested, and neutral territory remain inviolate. An analogous case may possibly be referred to in the blockade of Montevideo. The Rolla, 6 Ch. Rob. 371. Another exceptional case may be illustrated by refer ring to the equivocal decision in the Ostsee (2 Spinks, 170), where, on appeal, the Judicial Committee of the Privy Council reversed a decree of Dr. Lushington, ordering restitution on the preliminary evidence, with 534 COSTS AND DAMAGES, out further proof, and without awarding to the claimant any costs and damages. The committee reversed so much of the decree of the Admiralty as refused costs and damages. On examining the opinion of the committee, it will appear that the committee's decision may be looked upon, practically, as a slight specimen of judicial legislation, unsustained by general principle and contrary to former practice; divesting the Judge of Admiralty of all discretionary power over the matter of costs and damages upon the restoration of captured property, without further proof or hearing, and arbitrarily muleting the captors exclusively upon the claimant's proofs of log, ship's papers, and depositions. And this was a decision purporting to be stricti juris; thus introducing a novel rule of practice in prize proceedings, encouraging to claimants but discouraging to captors. If this determination of the superior and appellate court be sound, and the opinion of Sir T. Pemberton Leigh, in behalf of the Judicial Committee, be clearly and intelligibly expressed, so as not to be misconstrued or mislead, then the inferior courts can readily conform their practice to the novel rule. And, with the present sources of information now accessible to all jurists of insular and continental Europe as well as the United States, no difficulty is likely to be encountered in es timating its value and testing its soundness as law. The precise effect and character of this overruling decision of the Judicial Committee, in the Ostsee, cannot be duly or fully appreciated, without special reference to that case, and the subsequent interpretations put upon that decision in other blockade cases. The case was decided by Dr. Lushington, August 19, 1854, over CAPTOR'S LIABILITY THEREFOR. 535 Vide ruled by the Privy Council, February 23, 1855. the Ostsee, Spinks' Prize Cases, 174; the Leucade (May 21, 1855), ibid. 217; the Fortuna (December 4, 1855), ibid. 307; the Aline and Fanny (January 30, 1856), ibid. 322; and S. C. on appeal (July 10, 1856), in 10 Moore, P. C. Rep. 491; also vide the American case referring to the Ostsee, 2 Sprague, 207, the La Manche. The Ostsee was a Mecklenburg ship, which sailed from Cronstadt, with wheat, to Elsinore for orders; she was intercepted by the ship of war Dauntless and allowed to proceed May 30; she was again met June 1, by the Alban, detained as prize for breach of blockade, and sent to England for adjudication. On August 1, she was restored with captor's consent and captor's costs allowed. At the time of the seizure, there was in reality no legal blockade established at Cronstadt. The owners appealed from the allowance of captor's costs, and claimed costs and damages. Dr. Lushington said, substantially, that Lord Stowell, from 1798 to 1815, while he presided in this court and administered the law of nations, condemned captors in costs and damages in only three cases not one in one thousand -without permission to justify by stating the grounds of the capture. The appeal was heard February 23, 1855, and judgment rendered the 29th of March following, when no ground for condemnation appeared from examining the depositions and ship papers, and damages were awarded. There are several modes of making up the judgment in case of restitution. First. Simple restitution with no costs to either party: Second. Restitution with captor's costs and expenses: and Third. Restitution with claimant's costs and damages. 536 CONFLICT OF THE ADMIRALTY On appeal, the Judicial Committee awarded to the claimants costs and damages, as of course, upon restitution, without further proof. Subsequently, in the Leucade, Dr. Lushington judicially interpreted and applied the doctrine as declared by the Privy Council in the Ostsee, critically examining that judgment. And it would seem that any candid consideration of this critical review and commentary upon the overruling decision might demand some qualification, if not a reversal of that decision. If the Judicial Committee can legislate, then, in performing their judicial functions as an appellate court, they may, without obstruction, in prescribing rules of practice, supplant, if not supersede the Parliament itself; if they cannot, in their judicial capacity, legislate, then, as a superior court exercising their ordinary judicial powers and privileges as such, they should be confined within the proper sphere of such magistrates, and be content to declare the law as they find it, and settle the practice of courts according to known precedents and just rules of interpretation. Generally, judicial tribunals cannot well arrogate to themselves the prerogatives of the legislature and still continue to retain that general respect for their decisions which such tribunals ought ever to command. The Privy Council, in issuing instructions, act as a quasi legislative body, and may, by their acts, bind subordinates and subjects just as if those acts or orders were a portion of the standing and fundamental laws of the land. And this may be taken and deemed to be a type of the theory upon which that representative in'stitution, the Privy Council, is founded and organized. But the Judicial Committee, in hearing and determin |