For this purpose the notice of the blockade must not be more
extensive than the blockade itself. A belligerent cannot be allowed
to proclaim that he has instituted a blockade of several j)orts of
the enemy, when in truth he has only blockaded one ; such a
course would introduce all the evils of what is tenned a paper
blockade, and would be attended with the grossest injustice to the
commerce of neutrals. Accordingly a neutral is at liberty to dis-
regard such a notice, and is not liable to the penalties attending a
breach of blockade for afterwards attemj)ting to enter the port
which really is blockaded.
This was distinctly laid down by Lord Stowell in the case of the
IFcnricJi and Maria (/>•), where an officer of the blockading squadron
hiul informed a neutral that all the Dutch ports were in a state of
blockade, whereas tlie blockade was confined to Amsterdam. The
ship was afterwards captui-ed for an alleged attempt to enter
Amsterdam, and Lord Stowell, in decreeing restitution, observed :
" The notice is, I think, in point of authority, illegal ; at the time
(0 Vol. I. p. 573. (A-) Vol. I. pp. 84, 339.
THE FRANCISKA. 3G3
wlien it was given there was no blockade wliieli extended to all is 3.)
Dutch ports. A declaration of blockade is a high act of sovereignty, ^o^r'and
and a commander of a King's ship is not to extend it. The notice August i.
is also, I think, as ille^'al in effect as in authority ; it cannot bo The
said that such a notice, though bad for other ports, is good for _'
Amsterdam. It takes from the neutral all power of election as to x^ pp^bcrtou
wliat other port of Holland he should go, when he found the port Leigh,
of his destination under blockade. A commander of a ship must
not reduce a neutral to this kind of distress ; and I am of opinion,
that if the neutral had contravened the notice, he would not have
been subject to condemnation."
The authority of this case is fully recognized by Dr. Lushington
in the present case, who observes tliat sucli an administration of
tlie law, in protecting the party misled, was most just.
Applying these principles to the evidence before thorn, their
Lordships can have no doubt that the master and owner in this
case are to be fixed with notice of all that was publicly known at
Copenhagen on the 14th of May, on the subject of the blockade ;
that it was known there that merchant vessels had been turned
back from ports on the coast of Courland, and that a general
impression prevailed that vessels seeking to enter Russian ports
ran great risk of seizure ; and that the owner in this case shared
that impression, and that to this cause are to bo attributed the
want of proper ships' papers, which lias been aln-ady alluded to,
and the absence, on the further proof, of any affidavit on the part
of the owner denying knowledge of the blockade.
But it is contended by the appellant that the impression whidi
thus prevailed at Copenhagen (if, in fact, there existed any general
impression) on the 14tli of May, was, and of necessity from the
at'ts of the belligerent powers must liave been, not that the ports
of Libau, Windau, and the Gulf of Riga were blockaded (which
they really were), but that all the Rus.sian ports in the I'.altic were
blockaded, which they certainly were not; and that a notice to bo
gathered from such erroneous impressions was, on the principles
ali'eady refen-ed to, of no effect.
In order to determine the question of fact ui«on tins point, it is
necessary to examine with some minuteness tiie ih'tails of tho
evidence as it applies to Copenhagen at the timo when this ship
I
364 THE FKANCl.SKA.
1855 loft that city. On the lltli of April, 18'i>4, the admiral rnado the
so'^a'i'nnd ^''^^''^ving coiiimunjcnfion to Mr. ]jiichanan, her Majesty's Envo"
^ugn>it 1. Extraordinary at the Court of Denmark: —
FkaSka ^'"^'^ "f ^^'Mingion, in Kioge Bay,
â– April 11, 1854.
Rifyht Hon. gir
Leigh. I have the honour to acquaint your Excellency, for the infor-
mation of tlie foreign ministers, consuls, vice-consuls, and consular
agents residing in the Kingdom of Denmark, that her Britannic
Majesty's fleet will sail this day for the Gulf of Finland, to place
in a state of blockade the wliole of the Russian ports in the Baltic
and in the Gulfs of Finland and Bothnia.
I have, »S:c.
(Signed) Ciias. Napier,
Yice- Admiral and Commander-in-Chief.
On the following day, the 12th of April, Mr. Buchanan pub-
li.shed the following circular at Copenhagen : —
To ministers, chargrs d'affaires, and consuls of all nations : —
The undersigned, her Britannic Majesty's Envoy Extraordinary
and Minister Pleniiwtentiary at the Court of Denmark, has the
honour to inform you that her ^Majesty's fleet, under the command
of Vice-Admiral Sir Charles Napier, sailed this morning from
Kioge Bay to take measures for placing in a state of blockade all
the Russian ports in the Baltic and in the Gidfs of Finland and
Bothnia.
(Signed) Andrew Buciiaxax.
On the 15th of April, a notification of the official communica-
tions thus received was published by the Danish Government in
the public new^spapers.
A letter in the same terms with that to Mr. Buchanan was at
the same time sent by the admiral to her Majesty's Ministers at
Berlin and Stockholm, and the Hanse towns.
The effect of this letter was communicated on the 14th of April,
by Mr. Lloyd Hodges, her Majesty's Charge d' Affaires to the
Hanse towns, to the Governments of Hamburg, Lubeck and
Bremen, and by the Minister at Stockholm to the Swedish
Government.
On the 16th of April, Lord Bloomfield, the British Minister at
TIIK FRANCISKA. 365
Berlin, made a similar communication to her Majesty's Consuls at is.>5
Dantzic, Stettin, Konigsborg, Memel, Pillau and Swinemunde. i'o'':if'ii^n
The effect of these communications was that the admiral had -I'lffi'^^ i-
sailed with the British fleet up the Baltic for the purpose of imme- the
diatelj placing in a state of blockade all the Russian ports in tluit ^"^c^^-
sea, not that he had actually blockaded any. ,,^'^^*^ ■^'■°°-
But, by a most unfortunate mistake, Mr. Hertslet, the Britisli Leigh.
Vice-Consul at Memel, announced not merely that such a blockade
had been actually instituted, but tliat he was ordered by tlie
British Minister at Berlin to make such an announcement.
On the 17tli April, ho published at Memel, in the German
language, a notice to the following effect : —
Memel, April 17ili, 1851. — I hereby most respectfully iuform
the Honourable Corporation of Merchants at this place, that I am
ordered by the Eoyal British Ambassador at Berlin, to make
known : that Admiral Sir C. Napier has placed the whole of the
Russian ports in the East Sea in a state of blockade.
W. J. Hertslet, her Britannic Majesty's Yice-Consul.
On the 18th of April this notice was posted by the authority of
the Corporation of Merchants at Memel, on the Royal Excliange
of that city, and remained there the two following days.
There is nowhere to be found any public correction or qualifica-
tion of this most important error. Indeed, it does not appear by
anybody to have been considered an error as regarded the fact of
the blockade. The admhal himself seems to have considered that
he had both established and notified a general blockade. Tiie
officers of his fleet might naturally share the impression. Captain
Foote and Lieutenant Hall, as is observed in the judgment below,
had been in communication with Mr. Hertslet, and he probably
made public the impression which he had received from tliem.
There is not the least reason for imputing to him any intentional
misrepresent ation .
But the important point for consideration is : what imprrssious
would these proceedings create on tlic public miud, and what
reports on the subject would be likely in conscrpience of them to
circulate through the ports of the Baltic? Tiie belief whieh tiicy
would occasion, as it appears to their Lordships, must necessarily be
366 'iiii: FKWfisK'A.
1855 that wliatcvor tho blockade migljt Le it was general, and extended
ao'VI^'und ^*^ ^^^ ^^^^ Kussian ports in tho Baltic and was not confined to a
August 1. fg^y ports or to a particular division of tho coast.
The There is evidence that this actually was the belief created,
Franciska. q^ ^i^^ 21st of April the Lubeck newspapers contained the
Ilif,'htnon. foUowinrr notice : — " The closing of the Russian ports, which has
1. remhiTtuii
Leigh. now taken place through the blockade of them ordered by the
English Government, cannot fail to exercise great influence on the
value of Eussian produce." On the same day the Gottenburg
newspaper contained the following notice: "Stockholm, April 21. —
It has already been made known at the different places, by the
official paper of last Tuesday's post, that the British fleet has pro-
ceeded up the Gulf of Finland, and that all Russian and Finland
ports have been declared in a state of blockade."
Nothing appears to have taken place which could have been
known at Copenhagen, on the 14th of May, calculated to correct
this impression. That ships had been warned off from Libau,
Windau, and the Gulf of Riga, would in no degree tend to raise a
belief that the blockade was confined to those ports, unless the
masters of the vessels had been informed that they might proceed
to other Russian ports, which does not appear to have been the
case. One ship, indeed, the Friihiqf, appears by Captain Key's
affidavit to have been permitted on the 1st of May " to proceed on
her voyage to the Gulf of Bothnia, because that gulf was not
then blockaded " ; but the ship could not have returned from her
voyage or have made that fact public at Copenhagen by the 14th.
That ships coming out of the blockaded ports were warned of the
existence of the blockade was quite consistent with the existence of
a blockade of other ports. The earliest document, in point of date,
which refers to the blockade of the particular ports, as distinct
from the supposed general blockade, is Captain Key's letter of
the r2tli of May, to Mr. Hertslet, at Memel ; but that letter, if its
contents had been more material than they are to the point now
under consideration, could not have been generally known at
Copenhagen on the 14tli, the communication between those places,
as appears by Mr. Hertslet's affidavit, occupying five days.
But there is conclusive evidence that, long after this period, the
individual at Copenhagen, who might be supposed to be best
1
THE FRANCISKA. 367
acquainted with, the blockade, and whos3 authority must carry 1855
the greatest weight at that place, namely, the British Minister, glf'^o","' "':
supposed the blockade to extend to all the Russian ports in the August i.
Baltic, and a letter of Sir Charles Napier of the 27th May, 1854, The
seems to show that he was under the same impression. Fb ancis sv.
On the 27th May, the Admiral addressed, from Ilango Bay, ^'f ^'^ ^^o^-
T. Pemberton
the following letter to Mr. Buchanan : — Lei^'h.
Sir, — Many Danish and Swedish vessels have been warned
off the coast of Courland, attoinptiug to enter the blockaded
ports, pretending that no blockade has been notified. My letter,
notifying the blockade, was addressed to her Majesty's ^linisters
at Copenhagen, Berlin, Hamburg, and Charge d'AlYaires at
Stockholm. [It does not appear that any such notification bad
been made by the Admiral, except by bis letter of the lltb of
April.] I have, therefore, to request that you will take steps
to make it known tliat all vessels, in future, will be seized attempt-
ing to break blockade.
On receipt of this letter, ^Mr. Buchanan, on the 3rd of June,
addressed tlie following note to the Danish Minister for Foreign
Affairs : —
Copenhagen, Juno 3, IHol.
M. le Ministre,
I have the honour to acquaint you with respect to my note to
your Excellency of the 12th April last, that Sir C. Napier, the
Commander-in-Chief of her Majesty's naval forces in the Baltic,
having established a blockade of all the ports of Eussia in that
sea and the gulfs of Finland and Bothnia, has reported to mo
that he has already had occasion to warn off Danish vessels
attempting to proceed to some of these ports, and tliat his
Excellency has notified to me, for the information of the subjects
of his Majesty the King of Denmark, that vessels attempting
in future to violate the blockade which he has established will
bo seized by her Majesty's cruisers.
Yet, from the Gazette of llie 1 1th of August, it appears that
the blockade of the coast of (Jourland commenced on the 17th uf
April, that of Helsingfors and some other ports on the 20th of
April, that of Eevel and other ports on the 20tli of May, and
that of Croustadt and others in the (hdf of Finland ou the
Tin: FRANCISKA.
1855 onili of June, al)0V(3 throe -weeks after the date of ]^[r. liuclianan's
Jul;/ 2(j, 27, ju
30, 31, uud ^'^'■'^'^•
-^u ffi'i t 1. It is clear, therefore, that the real state of the blockade could
Thk not have been known at Copenhagen on the 14 th of May, and
'KANcisKA. ^jj^^ ij^^ ^^^1^^ notice which the master could receive at that port
Eight Hon. j^|- (j^.^^ ^[â– ^^â– ^Q -would be, that he must uot sail for any of the
T. IViiibcrton , ... . .
Leigh. liussian ports ; a notice which, if ho had received it from a
British officer, he could not, on the principles already stated, be
ininishcd for disregarding.
If this view had been presented to the judge in the argument
iu 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 satisfac-
tion 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 tlieii-
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 recognised by the
British Government.
In the first place, the intention to blockade had been duly
notified to the Danish Government, and they might naturally
expect that as the British Government on the one side, and the
admiral on the other, had means of easy and rapid communication
with Copenhagen, any measure so seriously affecting their trade
as the actual blockade of any of the Russian ports would be foith-
THE FRANCISKA. 369
^vitIl intimated to them in the same authentic manner. It now 1855
appears ^\hy this was not done, namely, that the admiral con- {'^'''^J^' "I*
sidered the notification of the 11th April as equivalent to notice of Augiut i.
actual blockade ; but of this, of course, the Danish Government Tire
could not have been apprized. Franoska.
Besides this, they would see that, by the British Order in Rifrht Hon.
. . . T. Pemberton
Council, and the French Ordinances of the l-3th of April, issued Leigh.
subsequently to the notification by the admiral of the intended
blockade, a certain degree of commerce — which, if the ports were
blockaded, would expose neutrals to confiscation — was permitted
to Hussian ships up to the 15th of May ; they would observe that
no such permission was given to neutrals ; and they would not
unreasonably infer that such permission was not granted only
because it Avas not required ; that the permission was granted to
Russians because they would be liable to capture, whether the
ports were blockaded or not ; that it was not extended to neutrals,
because, there being no blockade, there would on their part be no
risk ; and this impression would be confirmed by observing that,
in the permisj>ion to Russian ships in the ports of the allies to
proceed on their voyages, no reference is made to blockaded ports
as either included in or excluded from such permission.
Again, it might be known at Copenhagen that the rumours of
blockade which prevailed were, to a certain extent at all events, so
far unfounded that many of the ports which were said to be
closed were, in truth, open ; that as to the coast of Courland itself
there had been for two days no ships of war u])on the blockading
station, and that on those days and the day following a very largo
number of ships were reported at least, whether truly or not, to
have entered Riga.
Tlieir Lordships cannot but think that these considerations
might with great justice affect the credit of any reports in circula-
tion at Copenhagen, and create a not unreasonable doubt whether
any blockade of Russian ports had yet been established by a com-
petent authority ; and they go far to explain much of the testimony
which might otherwise be fairly open to severe animadversion.
There has been much confusion and perplexity with respect to this
blockade ; there are, as usually happens in such cases, some
inaccuracies and errors in the evidence on both sides, but their
R. — VOL. II. " ^'
370 TIIK FRAXX'ISK'A.
1855 Lordships aro nut inclined to attribute to tlie statements of th''
JiiJij 26, 27, -svitncssc's, or tlio cortificato of the merchants, wliicli has been
30, 31, mill ' . 1 . .
Aiii/u>.t 1. pr(jduced on the further proof, any wilful distortion or coucoalment
Tju; of the truth.
Franciska. ipijQ y'^Q^ which their Lordships have taken of this part of the
Ilijflit llou. case makes it unnecessary for them to advert to the many other
Leiyh. " important points which were argued at their Bar. 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 (/).
[Spinks, 307 ; (/) THE JOHANNA MAEIA.
1 Mooro,
r. C. 70.] The circumstances in this case which led to the capture of the shi]),
(lifCcred from those of the Franciska, in this extent: The Joharni'i
]\[aria, a neutral ship, belonging to a subject of Sweden, under Norwegian
colours, took on board at Stavanger a cargo of herrings, and sailed there-
with on the 5th of May, 1854, bound for Eiga, where she arrived on the
20th of that month, and discharged her cargo, and then took on board a
retiun cargo of rye and hemp, and sailed from Eiga on the 24th of May,
bound for Elsinore for orders, destined for a Norwegian port, and in the
prosecution of such voyage was captured on the following day, about eight
miles off Lyser Ort, at the entrance of the Gulf of Eiga, by her Majesty's
ship Archer, the resjjondent, Edmund Heathcote, Esq., commander, and
brought to England for adjudication.
On the 19th of July, a claim was entered for the ship by the appellant,
the Swedish Consul-General, on the part of the owner, Chi-istian Lindtnor,
of Stavanger, Norway.
After the admission of further proof by the captors and claimant, the
ship and cargo were condemned by sentence of the High Coui-t of Admi-
ralty, dated the 3rd of February, 1855, for a breach of the blockade of Eiga,
with a full knowledge by the master of the blockade. From that sentence
the present appeal was brought.
Dr. Addams and Dr. Twiss, for the appellant ; and
The Queen'' s Advocate (Sir John Hardicg), and Dr. Jtnner, for the re-
spondents.
The arguments and authorities were the same as those advanced in the
case of the Franciska .
Judgment was delivered at the same time as in the case of the Franciska.
The Eight Hon. T. Pembertox Leigh : This vessel entered Eiga on the
20th of May, after all difiBculty arising from the Order in Council of the
15th of April had been removed. She came out again on the 24th of May,
THE PRANCISKA.
371
The following is the judgment of tlie Court below which was
reversed : —
Dr. Lushingtox. — In the judgment I am about to pronounce upon
tlie question relating to the blockades in the Baltic, it -will be my
earnest endeavour to found my decision uj^on the principles laid down
by Lord Stowell in the numerous cases Tvhich it fell to his lot to deter-
mine, and, in adducing reasons for the conclusions to which I may
come, I shall be anxious to resort to none which woidd not be in strict
conformity with the principles forming tlie foundation of tliose great
judgments — judgments which have been the delight and admiration
of the world — and I adopt those principles and reasons, not solel}' on
account of their authority or intrinsic merit, nor because the decisions
of the Court of Admiralty were, with scarcely an exception, uplield by
the Court of Appeal, and, more especially, were sanctioned by that
most eminent judge, Sir William Grant, but also because, so far as I
know, tliev were adopted as a part of the law of nations by tlie most
celebrated jurisprudents in the United States. Indeed, I am content
1855
Janunry 27.
The
Feaa'ciska.
iJr.
Lusliins-ton.
having taken on board a cargo, witli a full knowledgo of the existence of the
Ijlockade at the time of loading, and in the expectation, as it is said, that the
â– worst that could happen would be that she would bo sent back by the
British shijis forming the blockade, to unload her cargo.
The only groTind on which she could ask to be relieved from condemnation
would bo, that the letter of Sir Charles Napier, of the 27th of May, is.j4
{(intey p. 3G4), and the subsequent announcement by the British Government
in the London flazdie, of the 14th of August, would be sufficient to annul
all that had previously taken place, and, on the principles laid down by Lord
Stowell in the JloIIa (m), to postpone all penalties for breach of blockade
till after the 2Sth of May.
Their Lordships, however, are of opinion that such a judgment would
caiTy the doctrine referred to further than either the decision itself or sound
principle would warrant. In that case Lord Stowell observed tliat the
blockade had been very lax ; that several vessels had been permitted by the
blockading squadron to enter, and the observations relied on must bo under-
stood with regard to the circumstances out of which they arose. In this
case, from the 5th of May there had been an uninterrupted blockade; no
single instance has been produced in which any vessel had been permitted
by any of the blockading ships to enter tho port ; nor hail any been jkt-
mitted to come out after tho 15th of May with carg
Thoro is clear proof of a de fadn blockade ; full knowledge of it by tho
master, and nothing which could mislead him as to its extent or effect, llio
usual consequences must therefore follow, and the sentence below be affirm ed,
but without costs of the ajipeal.
(»)) Vol. I. p. ">7;i.
V. V, 2
372
THE FRANCISKA.
1865
January 27.
Tub
Fbanciska.
Dr.
Lusbiugtou.
to take tlio law of blockade in the words of Chancellor Kent (a).
1 do not road tlioso passages, because tliey are familiar to all, but I
ri'poat tliat they contain the doctrine by wJiich I intend to be guided.
I purpose, in the first instance, to address myself to the general
(questions, whiili may possibly affect all or most of the cases; having
disposed of tliem, I shall then, so far as jnay be nocessarj', consider
each particular case and what distinctions ought to bo made.
Assuming, for the moment only, that certain blockades were estab-
lished or attempted to be established by Sir Charles Napier in the
Baltic, the first question which lias been raised is : whether Sir Charles
Napier was invested with adequate authority to establish blockades in
those seas ?
What is the law? Lord Stowell states it in the Henrich and
Maria (b) and in the Rolla {c), where he sa^-s, "a declaration of
blockade is a high act of sovereignty." The doctrine is this: that it
appertains to the government of a belligerent country to declare a
blockade ; that no commander, of his own authority, can declare a