the two nrticlcs wliicli woro most objoctionaldo to Great ]?ritain, viz.
thai free .slii[)s iiiado froo goods, and tho article of search, of uotico,
and of blockaded ports — therefore, by reason of the omission on the
occasion in question, this treaty must bo considered a substitution for,
or rather a revocation of, the lOth Article of the treaty of Denmark of
1070.
On this point I would first observe that, beyond all doubt what-
ever, there are no revocatory words, and I must say that I cannot
discover any terms in this treaty which I am justified in construing to
be a revocation by implication, nor any intention to substitute this
treaty, or any part of it, for the stipulations contained in the 16th
Article ; and I must add that I do not perceive the slightest incon-
sistency in the 16th Article of tho Danish treaty and this treaty of 1801
subsisting together. I will add to this, that with regard to the Swedish
treaty in 1803, that article which contained a provision as to contra-
band was altered, and no notice was taken of tho remainder. I see
no reason for sujiijosing that it has been in any way set aside.
In the documents themselves I see no reason to pronounce a judicial
ojiiuion in favour of a revocation. There are circumstances, however,
which, if I am correctly informed, tend to show that some conception
was entertained that a revocation was intended. I advert to the fact
that the reservations as to Sweden and Denmark, inserted in the
instructions from the Admiralty in 1793, were not inserted in any
instructions issued in the war commencing in 1803 ; and also, what
appears still more extraordinary, I cannot find any trace of the
articles in question becoming the subject of discussion in these Courts.
But if all I have now stated bo correct, I do not jierceive how such
circumstances ought to influence my present judgment, for the omis-
sion to which I have alluded may possibly have been unintentional, or
even if intentional, it was the act of one of the contracting parties
only. I am at a loss, indeed, to conceive how it happened that, when
so many Danish and Swedish vessels were captured, these articles
were not brought into controversy ; but the omission to seek a remedy
cannot alter a contract.
For these reasons I feel myself bound to conie to the conclusion that
the 16th Article of the treaty with Denmark of 1670, and the 11th
Article of the treaty with Sweden of 1661, arc unrevoked and in full
vigour.
The most dilueult task I'emains, for, admitting these articles to be
in force, what is their true meaning, and how are they to be construed?
I apprehend that I must first look to the articles themselves, and if
the meaning intended to be expressed is clear, I am not at liberty to
go further.
THE FRANCISKA.
407
If there be doubt, I should in an ordinary course seek elucidation
by reference to the circumstances under which the treaties were con-
cluded. I have used ni}- best endeavours to obtain information, but I
must candidly acknowledge that I am unable to refer to any auxiliary
information of this description. I cannot find any information as to
the peculiar circumstances attending the country at the time these
treaties were made which would throw any light upon the present
question. Cotemporary exposition would be the next resource ; I
have none, and I have not heard that there was any cotemporary
exposition. In the very able argument addressed to the Court I was
not apprised, and I do not know, whether those articles were carried
into execution, and if yea, how, during any war prior to 1793, or if
so, to what extent.
Again, with regard to modern exposition, this may be of two kinds.
First, an explanation solemnly agreed between the two States
reconcileable with the terms of the articles. An interpretation of
this kind, though it might not be quite in unison with my own
opinion, I should hold myself bound to accept.
Secondly, an interpretation which the words of the article do not
admit. Such an interpretation might be more properly called a sub-
stitute for the original meaning, but a substitute agreed to by both
the contracting powers. Assuming this to happen, I must have the
authority of the Government under whicli I sit that such an agreed
interpretation has taken place. I should then receive it, not as a
construction, but as an agreed settlement of a difficulty. I must
always remember the limits within which, as a coiu-t of justice, I can
act.
It is quite right that the Court of Admiralty fchould decide whether
one treaty has been altered or revoked by another ; it is equally
within its province to construe the meaning of a treaty; but if any
change has taken place by diplomatic arrangements only as relates
either to the subsistence and continuing effect of the treaty, or as to
any alteration in its meaning, such is matter for the Governments, and
not fit for a judicial tribunal.
It has been contended that these treaties must have been intended
to confer some peculiar privileges on Denmark and Sweden, otherwise
why should such articles be framed ? or, to express the same idea in
other words, that in case of war, Denmark and Sweden should, as
neutrals, have some advantage over other neutral countries.
First, I will observe that it may bo not altogether unusual for a
treaty to be made merely declaratory of the law, not giving any
peculiar advantage to either of the contracting powers ; and such is
the opinion expressed by Mr. Wheaton. "With regard to the treaty
with America in 1794, he says : " The stipulation in the treaty intended
1855
Jaiiuary 27.
The
Fea^xiska.
Dr.
Lushington.
I OS
■| 111; i'j;an('1ska.
isori
Janitari/ 27.
The
Fbanciska.
Dr.
Luybingtou.
to Ini cnf(jrcod by tliis instruction eeonis to ho a correct exposition of
the Inw of imtionB, and is admitted by the contracting parties to bo a
correct exposition of that law, or to constitute a rule between them-
selves in place of it " {a).
NN'ithout any refcrenco to these particular treaties, I must express
my serious doubt whether the principle involved in such proposition
can be maintained, whether it was quite consistent with tlie law of
nations to confer on one neutral rights as to blockades wliich did not
belong to others similarl}' circumstanced. The true principle is that
the evils arising to neutral nations from war, and especially the
exercise of the right of blockade, are evils which ought to fall on all
according to the same rule ; that it would be wholly contrary to law
and justice to allow one neutral to trade with a blockaded port, and
exclude others. So, in a less degree, but still equally in principle,
it could not be consistent with justice to relax the precaution or
diminish the safeguards against entering a blockaded port in favour of
one or two neutral States, to the prejudice of others; because so doing
would be giving them facilities and inducements which others did not
possess, and so confer upon tliem a special commercial advantage
not warranted by other distinguishing circumstances ; and moreover,
that such a measure might justly be complained of on another ground,
viz., that all restrictions with regard to blockades are only justifiable
to the extent that they are necessary to effect their object ; and that if
a restriction is not necessary to be imposed on one neutral State, it is
equally unnecessary to be applied to another.
1 will illustrate the foregoing reasoning by reference to the subject
of contraband. Now, we all know that there is contraband by the
general law, contraband by special treaty, and articles excepted from
contraband for special reasons, particularly as being the growth and
produce of a country. Suppose Franco and Eussia to be at war, and
Belgium and Great Britain to be neutral countries ; what would be
said of a treaty whereby France agreed to allow the manufactures of
Liege, being of the nature of general contraband, to go without let or
hindrance to Eussia ? Would not Great Britain have a right to say :
" The whole law of contraband depends upon the right of self-
protection ; if necessary at all, it is eqiiaU}' necessary against aU ; and
you have no right to keep the burden upon me, and relieve another to
my disadvantage ? " For these reasons, without saying to what con-
struction I may bo compelled to come, I think strong objections in
principle lie to the proposition contended for by Dr. Twiss, that the
articles must confer some privilege beyond what is allowed to other
States.
(<0 TVTioaton's International Law, Vol. II. p. 23S.
THE FRANCLSKA. 409
To carry this matter a little further. When I am told that by 1855
these treaties extraordinary rights were conferred on Sweden and January 27.
Denmark, I should have liked to know what was the law governing ^^^
blockades such as the present in those days when the treaties were Feanciska.
framed, and in what particulars these treaties differed from that law. ~
It would, perhaps, not be easy to show what the law was. It is Lushiugtou.
within the bounds of possibility, looking at the unsettled state of the
law at that period, that the alterations supposed to have been made })y
those treaties were only an exemplification of tlio present law : a
declaration of what should be taken to be the law.
On the other hand, however, it must be admitted tliat the circum-
stances of the exception from the Admiralty Orders of 1793, and
Mr. Keene's negotiations about the same period, show that, in the
opinion of the British Government at that period, there was some
peculiar privilege reserved by these treaties to Sweden and Denmark.
That privilege was construed to be a right to warning.
These instructions are very short, and we must recollect that, upon
the occasion when they were issued. Great Britain and other European
countries conceived that such was the state of warfare with France,
that it was lawful to resort to the most extraordinary measures for the
purpose of crushing the French nation, even to the attempt of
endeavouring to starve them.
The first object of these instructions is contained in Article 1 : all
neutral vessels laden with corn, &c. bound to any French port or to
any port occupied by the French troops were to be detained, and tho
right of pre-emption exercised ; and to the best of my recollection
they received ten per cent, in excess. The second article was : —
" It shall bo lawful for tho commanders of his Majesty's shijis of
war, and privateers that have or may have letters of marque against
France, to scizo all ships, whatever ho their cargoes, that shall be found
attempting to enter any blockaded port, and to send tho same for con-
demnation, together with their cargoes, except the ships of Denmark and
Siveden, ivhich shall only be prevented from entering on the first attempt,
but on the second shall be sent in for condemnation."
Now, it is perfectly clear to my mind, and no person can denj-, that it
nmst have been intended by those instructions to have referred to
treaties which were in existence, and that in consequence of these
treaties this privilege was given to Denmark and Sweden. When we go
to the third article, I must confess, that when one comes to construe tho
treaty itself, it does leave a court of justice in a grt\at difiiculty indeed.
The third article, supposing that I understood it riglidy, and that pains
were taken in framing these articles, relates to blockade by declaration,
in which case Danish and Swedish ships are all put on the same
footing as others, and there is no exception at all. I must not call that
410 THE FRANCISKA.
l,s.j,5 H con-striKtion of llio treaty, bocauso that would bo wrong; this was tho
Jiinmrij'n. stop tf«l< oil by liis ^Fajofity's Govcrnnient at that time in coneequenco
Z~"^ of fli(> treaties between Denmark and Sweden.
ruAxrisKA. Tliero arc several reasons which render it very doubtful whether I
"i;^ — can take these instructions as my guide.
Dr.
Lusbington. First, I can hardly consider them as a construction of tho words of
the articles, for I can find no words in tlie articles to bear them out.
They can bo made to bear them out only by putting words into tlnj
articles which ajipear neither expressly nor by implication. There is
not a word as to warning oil tho first time to be found in any one of
tho articles, nor anything approaching to it.
Secondly, as an exposition of the articles, they are loose and un-
satisfactory ; for the great question of all will still remain unsolved,
viz., whether a Danish vessel would be entitled to a warning if sho
proceeded with a knowledge of the blockade ile fado, and made an
attempt to break it ; that is not solved by these instructions nor by
anything else.
Thirdly, this exposition, if such it may bo called, or agreed con-
struction, was temporary only, and, so far as I know, its duration
ended with that war.
Fourthly, Mr. Keene's despatch justifies me in saying that this was
not an exposition of tho articles, but a substitution for them ; and I
apprehend that where such a substitute for explanation is agreed
upon, I am not at liberty to engraft it into judicial proceedings,
except under the authority of the Government under which I sit, and
no such authority I have.
Let us see what Mr. Keene says. Addressing the minister of
Sweden, he says: — "The minister of Sweden will no doubt observe
that the rules prescribed in these orders are more favourable to
Sweden than those stipulated in tho treaty existing between the two
Courts, as in tho treaty all transports of provisions to an enemy are
declared contraband and subject to confiscation." This may be
peculiar to Sweden, because the two articles differ as to contraband,
but tho next passage cannot. "The excejition in favour of Sweden,
in the article of these regulations concerning blockod-up ports, is
founded upon tho same treaty, tho principles of which are perfectly
consi.steut with tho prescriptions given to the commanders of his
Majest}''8 armed vessels.'' These are the regulations which the
Government, for the time being, chose to enact, founded on the treaty.
Then he goes on, "It can certaiulj- not be imagined that the object
of this treaty has been to jjermit to the vessels belonging to neutral
powers to renew their attempts of entering into blocked-up ports as
many times till they succeed in throwing provisions into them ; they
THE FRANCISKA, 411
have only been exempted from, tlio puuislimeut of couliscation upon the 1855
first attemi^t " («). January 27.
Now, I repeat my opinion tliat these instructions are not a con- -p^g
struction or intei-pretation of the treaty. Feaxciska.
If, then, I am not authorized to take these instructions as the jy^
arrangement made between the two Governments, and as a permanent Lushiagton.
settlement, I must put upon those articles that interpretation which I
think the words in which they are expressed require, and which they
were intended to bear at the time of the contract ; that is, if we can,
with our little means of judging, say what the contracting parlies
intended in 16G1 and 1670.
First, it is, I conceive, perfectly clear that these articles do not give
any general right or liberty to go to blockaded ports.
The words of the ICth article are : they shall have freedom, of
course, to go anywhere they please without impediment, "unless in
ports and places besieged by the other." Therefore, construing, as I
believe I must, obsessum to be commensurate with the siege or
blockade, or both, it was intended that Denmark and Sweden should
not convey merchandise to blockaded places.
With regard to what follows, I must enter into some nice dis-
quisitions with respect to the two treaties, because the treaty of
Sweden, which perhaps I may call the mother treaty of the two, is
in these words, " quod si acciderlt,''^ which is construed to mean, "if
they happen to go to blockaded ports." The words are, '^ quod si
acciderit," the meaning may be, "unintentionally approaching them";
the words in the Danish treaty are, " quod si jecerint " ; these words
are equally left without auxiliary explanation. They must, I grant,
looking at the whole context, necessarily mean this : if they should in
some way or other, but how nobody can tell, approach blockaded
ports.
My opinion is, therefore, that there was no general right to go to
blockaded ports, and that such a stipulation would not only have
militated against tlie right of blockade, but would have been re-
pugnant to the just rights of other neutral nations.
In what cases, then, were these articles to apply ? There are in-
superable difTiculties to any literal interpretation of the words of the
articles, arising most probably from our ignorance of tlie circumstances
for which they were intended to provide.
It is my belief, though a belief I cannot act upon, tluit tliero was
some particular commercial intercourse, a regard to which dictated
these compacts, such as a supply of provisions or some similar com-
modity ; for it is almost an absurdity to suppose that these articles
(f/) Annual Eogistor, 1793; Stiito Papers, p. 171.
412 Tin; FKANCISKA.
1855 n])]ilit!(l to cargoes of ovory (Inscription. Observe tlie alternative — you
Januanj ll . may fiiko it, nccordiiif^ to ono coTistruction, to a Itlockadod \u>ri\ the
hlockadiiig s(|ua(ln)n must Ituy it, or you must take it to another poit.
FiiANTisKA. Now, could it bo supposed that a iJanish or iSwedisli vessel could cany
a cargo of silks and satins or pig iron to the blockading fleet, and say,
Lusliiiigton. " ^'"y "\y cargo, or send mo to an enemy's port not blockaded " ? It
must have been intended that the commodity ofTered to the squadron
must have been a commodity possible to be bought ; there can be no
other meaning to that part of the treaty.
I incline to think that the only mode of arriving at a safe conclusion
is to determinL" -what is not the meaning, or what is sometimes called
the process of exhaustion.
It is agreed, then, first, that this article does not destroy the right
of blockade generally. Does it moan that a Swedish or Danish vessel
may, with a perfect knowledge of the blockade, sail with a cargo for
that blockaded port, get in if she can without being stopped by the
cruisers, and if stopped say, " True, I was going to the blockaded
port, but 3-0U have caught me ; buy my cargo, or send me to another
port not blockaded " ?
"Would that be a rational exposition ? "What would be the conse-
quence ? All Swedish and Danish vessels might sail for any of the
blockaded ports for Eiga ; get in if they could ; if turned back, sail
along the blockaded coast, slip into "Windau or Libau ; or, if stopped
by another cruiser, say, " I have been warned ; I am in my course to
some port not blockaded."
If this be the sort of warning claimed for a ship intending to violate
the blockade, I say that such a construction is not only not to be found
within the four corners of the treaty, but is repugnant to the spirit of
it ; destructive of all just rights belonging both to belligerents and
other neutral States.
But there is another possible interpretation which I will put to the
test. A Danish vessel, cognisant of the blockade, but without any
intention to violate it, sails straight for the blockading squadron, and
says, ** Buy my cargo, or let me go to an unblockaded port." I think
this might be one of the meanings, and, if such a case should occur, I
would restore the vessel.
Take another state of things. A Danish vessel jiroceeding for a
blockaded port in ignorance of the blockade. By the ordinary law of
blockade she will not be condemned unless the blockade has been
notified to Denmark, or unless the blockade has become so notorious
that knowledge must be presumed. Does the treaty make any
difference in such a case ?
In the case first supposed, of notification to Denmark, it coidd not
be argued that ignorance could be any excuse, when that ignorance
THE FRANCISKA.
413
arose from the fault of the Danish. Government in not informing her
subjects, as Lord Stowell lield it was the duty of every Government so
receiving a notification to do.
Then consider the case of ignorance of a blockade de facto. There
might be a case of general notoriety, and yet of particular ignorance ;
a case where, unless there was some stipulation by treaty, the pre-
sumption of knowk^dge ought to prevail against the fact of ignorance.
Does this treaty provide for such a contingency ? Possibly it might
have been intended so to do. It is possible that, as this treaty is
universal in its terms and not confined to the Baltic, and as Denmark
and Sweden were in those times difficult of access, this might have
been the intention of the contracting parties.
Be it so, then, though circumstances have wholly changed ; yet if
such a case occur, Danish ships and property shall be protected.
Is there any other possible state of things in which Denmark or
Sweden (I speak of them indiscriminately) could reasonably claim a
benefit under this treaty ? I will exercise my ingenuity to find a case.
Say a case of doubt as to the continuance of a blockade ; of justifiable
doubt. What is the extent of any reasonable demand on the part of
the merchant vessels in such a case ? Liberty to approach the
blockading squadron and make inquiries. Produce the case of
reasonable doubt and of directing the course of the vessel to the
blockading squadron for such jiurpose ; I will release her.
Now, what cause of complaint has Denmark or Sweden? I have
provided for every case that I can even imagine for the j^rotection of
their merchant vessels, if their commerce be conducted with integrity
and due regard to the rights of the belligerent. If there be any other
state of things which could require a similar remedy, I would provide
for that also ; but do not tell me that I have given to Denmark and
Sweden no more than other nations could justly claim until you have
proved to me what the state of the law was prior to 1661 — until yon.
have shown me that, either this treaty was not declaratory of that law,
or, if it were not, that the law of nations, since 1661, has not grown
up to the same proportions. Show me, in short, that my construction
is not consistent with justice, or with the fair import of the words of
the treaty, and I will abandon it ; but if no complaint can fairly bo
raised, and no grievance pointed out, I will adhere to my own inter-
pretation, and not adopt that which the convenience of the moment or
the incuria of statesmen might liave induced them to resort to, for the
sake of temporary acquiescence.
Having now stated the various conclusions to which I have come
with regard to this blockade and the treaties, I proceed to adjudicate
upon this case of the Franciska, in conformity with those conclusions,
and, I hope, also with the true result of the evidence.
1855
January '21.
The
Feanciska.
Dr.
LusLiin
ton.
414 '|[JK FIUNCISKA.
1855 'rii(> ])n sont consideration is conGncd to the ship only (a). T\v
JantMnj 27. ycssol is ii Danish vf.ssol, and, in tho montli of April, left Spain witli a
ipjjg mixed cargo, destined for tho IJaltie, and hound to lOlsinoro for orders.
FuANcibKA. Mr. Arljoe, tlie owner of tho vessel, was resident at Copenhagen.
jjj. "Wliat were the precise orders tho master received I have no means of
Lu.sliiiigton. knowing witli accuracy. She loft Klsinoro on the I4th of May, and I
must seek for his destination in the evidence of the master, tho papers
in general terms describing the voyage to he to the Baltic,
The master's account on tho 18th interrogatory is, that his owner's
orders were to pi'oceed to !Memel, but, he says, "If tliere was no
blockade, and if the English ships of war would permit, I was ordered
to proceed to Riga, and I was sailing to ascertain this from the English
wlien captured. Tlie voyage was to have ended at Eiga if not
blockaded, and if permitted to go in and out."
It is of the last importance in this case to try the credit of the
master ; to examine whether his evidence be consistent and true, or
whether, having placed himself in a difficulty, he has adopted such a
statement as he belicA-ed might rescue him from the consequences
witliout regard to the real truth of the case, and it may be without
having very definitely determined upon the line he should adopt in his
evidence.
First, then, he has sworn that his orders were to go to Memel, a
neutral port, to wliicli he was entitled to go, and so far well ; he does
not say lie was to go to jNlemel to make inquiries there as to the