CHAPTER V SOME ILLUSTRATIVE JUDGMENTS FOR the full appreciation of Stowell's work we must examine with some particularity a few at any rate of his decisions. Reference has already been made to a notable judgment on the subject of blockade, one which in the Napoleonic Wars was of much importance alike to belligerents and to neutrals. Stowell, as has been narrated, took his seat as Judge of the Prize Court at the end of October, 1798; at this time on the law of blockade there was a complete absence of British juridical authority. This is not altogether surprising, for maritime warfare had, until the wars of the eighteenth century, consisted almost entirely in the destruction or capture at sea by one belligerent of the ships of the other. Stowell soon filled this legal gap, and within seven months of his appointment, that is by the end of May, 1799, several leading and important principles on this branch of prize law had been formulated, explained, and established. 66 The basis of the action of a belligerent in reference to a blockade, and the foundation and justification of this maritime action, was thus enunciated in January 1799: "A blockade," said the Judge, "is a sort of circumvallation round a place, by which all foreign correspondence and connection is, as far as human effort can effect it, to be entirely cut off. It is intended to suspend the entire commerce of that place, and," there follows one result, "a neutral is no more entitled to assist the traffic of exportation than of importation." Such being the elementary rights of a belligerent, it was Lord Stowell's object to uphold them without injustice to neutrals whose freedom of commerce was obviously, but necessarily, diminished by the exercise of this modern form of maritime warfare. 1 For the proper protection of the belligerent's rights it was declared that the knowledge of the master of the ship which broke a blockade affected her owners, that a blockade continued to be legally in existence although the winds did occasionally drive off the blockading squadron, and that the intention, if clearly proved, to break a blockade rendered a ship and cargo which belonged to the same owner 1 The Vrouw Judith, 1. C. Robinson, p. 150. liable to confiscation. On the other hand a notification of a blockade without a sufficient investment was declared not to found a legal blockade, and a notification of a blockade being an act of High Sovereignty, a commander of a belligerent ship could not extend it. It was also laid down that it is the duty of a belligerent country which has instituted a blockade immediately to notify the discontinuance of it. These are by no means the whole series of Stowell's rulings on this one subject, which are to be found in the volumes in which his decisions are preserved, but they clearly illustrate the rapid and remarkable change which came over English prize law almost as soon as he became the Judge of the Court. In a few months there were publicly enunciated not academic propositions but judicial sentences which were binding both upon the British as belligerents and upon neutral countries whose subjects were parties to prize proceedings, and which dispelled all doubts on the subjects which they covered. Multiply the seven decisions on blockade delivered within seven months by the succeeding and similar spaces of time, and it is possible to realize the extraordinary performance of Lord Stowell. It was which proceeded week by week, month by month, until, to a large extent from the peculiar nature of English law, namely, its judge-made character, it resulted in a firm and permanent mass of law-of international custom and practice explained by and based reason-which was destined to endure and to be the guide and light of British, and of American, judges to our own time. on One cause of Stowell's judicial influence was his intuitive capacity to state legal propositions or axioms on conduct in illuminating phrases. Much has recently been heard of the doctrine of continuous voyage, which has certainly been carried beyond the range which Stowell gave to it. But his decisions on this subject, allowing for changes in modern commerce, are sufficient to justify the modern application of the principle to contraband. Briefly stated, a voyage from A to C was illegal, but a voyage from B to C was legal. It is unnecessary to refer to the manner in which the question arose out of certain regulations in regard to trade between French and Spanish colonies; the importance of it arises in regard to the continuation of a voyagefor in order to try to evade the law a vessel sailing from A would unload the cargo at B and then reload it, a further and additional quantity perhaps being added. It was then contended by the cargo owner that the voyage was from B to C and therefore legal. The question arose in the Prize Court-Was the voyage from A to C a continuous transit? The test which Stowell applied was contained in one of his felicitous phrases: "It is an inherent principle . . . that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage which continues the same in all respects and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering the cargo at the ultimate port.' 66 66 The pregnant words, "importation into the common stock of the country," have become classical because they express so much in a single phrase. The Supreme Court of the United States incorporated them in a unanimous judgment of that Court during the Civil War. Neutrals," said Chief Justice Chase, may convey in neutral ships from one neutral port to another, any goods, whether contraband of war or not, if intended for actual delivery at the port of destination and to become part of the common stock of the country or of the port." In the case of the Kim Sir Samuel Evans observed: "As to the real destination of a cargo, one of the chief tests is whether it was consigned to the 2 1 The Maria, 5. C. Robinson, p. 364. |