of the objects of the allies, and to the prejudice of the Russians. Could a Moldavian merchant imagine, if he had heard of this blockade, that he was to be liable to capture by the allies for exporting pro[*lxvii] visions, *when the whole purpose of the blockade was declared to be to prevent their import?

But, by the rules of law, a ship which has entered a blockaded port before the blockade is entitled to come out again; and if she has a cargo taken on board before notice of the blockade, she is entitled to bring it out. The blockade of a port is primâ facie notice of the existence of the blockade to all who are within it, because the inhabitants who see the blockading ships off their coast cannot be well ignorant of the blockade. But this was no blockade of the port of Galatz, but a blockade of the mouths of the Danube, Galatz lying on its banks up the river, at a distance of 150 miles from its mouth.

In this case the ship had entered the river before the blockade; the cargo was taken on board on the 30th of June; and the ship must have sailed on or before the 2nd of July; otherwise she would have been detained by the Russians. If she had no notice of the blockade, she was, on that general ground, entitled to bring out her cargo; if she had notice, she never could suppose that, according to the notification, she could be liable to capture; but if the case had been open to any suspicion, though, in fact, there is none, no weight could be given to such suspicions, when the claimant has been deprived, by the wrongful act of the captors, of the opportunity of affording the explanations which the rules of law were intended to secure to him.

Of the law applicable to the case, as it appears to their lordships, they cannot express their opinion better than in the language used by Dr. Lushington, in the beginning of his judgment on the hearing before him:

"On the part of the claimant, a very long argument was addressed to the court, impugning the conduct of the captors, and charging them with having improperly brought the vessel to Constantinople. It has been further stated that there being no means of examining witnesses at Constantinople, great unnecessary delay had occurred, and that the captors were responsible for such delay and all the consequences. The court is not disposed to deny the truth and justice of the principle contended for; on the contrary, I am clearly of opinion, that if a delay in bringing to adjudication, and the non-examination of witnesses, arose, though it may be almost impossible for the government of the belligerent nation to prevent such occurrence, still that the neutral ought to be indemnified if injustice has been done him. The captor in the first instance, though he may be perfectly blameless, is responsible to the neutral, and he must look to his own government for redress, if he has been compelled to make good any injury sustained by a neutral, in con. sequence of his fulfilling the commands which he, the captor, dares not disobey. In many cases the captains of some of Her Majesty's cruisers may have a discretion to release at once, but this may not be so in case of a blockade, when special orders may have been given to capture and detain."

In this statement of the principles of law, their lordships cordially

*concur.

[*lxviii]

What claim the captor may have upon her majesty's government, it is not their duty to judge, nor have they any means of forming an opinion. But as regards the claimant, his conduct appears to be without any excuse, and their lordships have no hesitation in advising restitution of the cargo, with costs and damages against the captor.

CARGO EX "ASPASIA."

Cremidi v. Parker and Dyke.

As regards the claimant, this case differs, in no material particular, from that which has just been decided, and the same decree must be pronounced. As between the captor and the crown there may be a very material distinction, as the death of Captain Parker, in the service of his country, within a few days after the capture, relieves him from personal blame, in respect to the gross irregularities which have since taken place.

THE SHIP ACHILLES."

Cremidi v. Parker and Dyke.

This case differs from the two which have just been disposed of, in this circumstance, that the claimant's right of property is not sufficiently established. The claim is made on behalf of Paolo Focca, as the sole owner; but the ship's papers do not establish the title, but, on the contrary, throw some doubt upon it, and the agreement made with the captain on behalf of the owners does not show who the owners are.

Considering, however, the hardships imposed on the claimants by the course pursued by the captors, their lordships will admit the claimants to further proof as to the property. The other facts are sufficiently clear, and they will not order further proof as to them.

COMMENTARIES

UPON

INTERNATIONAL LAW.

PART THE NINTH.

CHAPTER I.

INTERNATIONAL RIGHT OF ACTION. (a)

I. WE have hitherto considered States in their normal, that is, their pacific relations to each other. We have inquired into the origin and character of their reciprocal Rights and Obligations. We have now to consider the abnormal state of things which ensues upon a disturbance of these normal relations, when these Rights have been invaded and these Obligations not fulfilled.

In the case of individuals, a redress for this infringement of Right and neglect of Obligation is provided for in every system of National or Municipal Law. In these systems the individual is furnished with a Right of Action, and the regulation of this Right, in all its various shapes, forms the subject of a Code of Procedure; whether there be, as in the case of most Continental States, such a Code made by express enactment part of a general Code of Law, or whether, as in England, such a Code practically exists in *usage and judicial precedent amended and amplified by positive statute.

[*2]

In the system of International Law, this Civil Right of Action becomes of necessity an appeal to arms, (b) for war is the terrible litigation of States.

By what rules this International Right of Action(c) is governed, both

(a) Litis Contestatio. (b) Vide ante, vol. i. pp. 10-12. (c) Heffters most correctly entitles the second book of his clever work "Das Völkerrecht im Zustande des Unfriedens, oder die Actionenrechte der Staaten."

with respect to the principals in the suit and to the bystanders, we shall presently consider at length.

II. But as we approach these awful confines, we must remember that it is the bounden and most sacred duty of every State, to exhaust every legal means of redress, (d) before it has recourse to the dreadful necessity of war. These means are, as we have already seen, (e) classed under two heads, viz::

1. Measures taken viâ amicabili.

2. Measures taken viâ facta, which nevertheless fall short of war. III. Measures taken via amicabili, are, 1. Negotiation; 2. Arbitration. With respect to Negotiation-it is, of course, the principal object of Embassies,(f) the nature and privileges of which have been so fully discussed, to adjust international differences before they ripen into war.

With respect to Arbitration,(g) this mode of adjustment must be considered both with reference to the Parties and to the Arbitrator; as much with reference to the latter as to the former.

*First, as to the Parties. It cannot be laid down as a general [*3] and unqualified proposition that it is the duty of States to adopt this mode of trial. There may, under the circumstances, be no third State willing, or qualified in all respects, for so arduous and invidious a task. Moreover, a State may feel that the contested Right is one of vital importance, and one which she is not justified in submitting to the decision of any Arbiter or Arbiters.

We know from history that Congresses of crowned heads have not always proved themselves to be impartial or competent tribunals of International Law, (h) and the circumstances which justify the Intervention of Foreign States, both when invited and when uninvited by the contending parties, have been already under our consideration. (i)

Secondly, with respect to the Arbitrator. It should be observed that if any arbitrator be appointed, the terms of the appointment will of course limit his authority, and if his award exceed or be inconsistent with those limits it will be altogether null.(k)

(d) Wolff, Jus Gentium, c. v., De Modo componendi Controversias Gentium. Zouch, Pars ii. 1. s. 3, p. 54. (e) Vide ante, vol. i. p. 11.

(f) Vol. ii. pp. 124-234.

(9) See an excellent chapter upon the subject, considered as a question of general jurisprudence, in Voet, at Pandect., 1. iv. t. viii., De Receptis qui Arbitrium receperunt, ut Sententiam dicant.

(i) Vol. i. pt. iv. c. i., on Intervention.

(h) Vide ante, vol. i. pp. 456-7. (k) "Uti ex adverso cavendum quoque arbitro est, ne compromissi fines egrediatur, ac alia dirimat, quàm quæ ipsius arbitrio commissa sunt, aut alio modo quàm quo compromissum est. Generaliter enim sciendum, omnem de officio arbitri ac potestate tractatum ex ipso compromisso sumendum esse; nec aliud ei licere, quàm quod ibi, ut efficere possit, cautum est. Non ergo quodlibet statuere poterit, nec in re quâlibet, sed de quâ re compromissum, et quatenus compromissum est, et, compromisso generaliter concepto, de his solis judicare rebus et rationibus et controversiis, quæ ab initio fuerunt inter eos, qui compromiserunt, non quæ postea supervenerunt."-Voet, ib. 1. iii. t. viii.

For the powers and duties of the Recuperatores under the early Roman Law, see vol. i. Append., pp. 492-3.

For the power of the Pope as International Arbitrator, see vol. i. Preface, p. ix. p. 82; vol. ii. pp. 327-8.

As to the authority of General Councils in this matter, see vol. ii. pp. 313-18. Of Universities, iò., p. 318.