The ease itself is very simple and distinct. In March.1853,
the Ostsee was on her•voyage from Leith to Cronstadt ; there she took in a cargo of wheat, by the 16th of May completed the for- malities, and left the port. The English Admiral is said to have proclaimed in Kioge Bay, on the 16th of. April, the intention to blockade all the Russian ports; and he is reported. to have 'ac- tually blockaded certain ports in the Gulf of Finland on the 28th of May. But it is universally known that actual blockade on one side is necessary to constitute breach of blockade on the other ;. and it would be anew doctrine that the blockade of a port applies to vessels out at sea which have formerly been in that port. The British Admiral appears not to have been very certain how the case of blockade actually stood. Prize-money has charms; inde- pendently of prize-money, .British sailors are always eager to be doing; and Captain Otter of H.M. ship Alban, encountering the ship Ostsee under a Ifecklenburg flag, seized her as a neutral breaking blookade,.and sent her-to London for adjudication. The blockade had commenced ; the ship had left Cronstadt, a Russian port; the atmosphere of war reigned in the Bailie, or ought to have reigned; and the Biitish sailor, anxious to do work, became guilty of an excess of duty. The Admiralty Court. decided against the capture, but did not allow costs and expenses; and hence the appeal now decided by the Iudicial Committee of the Privy Gomm/ If all cases were exactly like the present; the decision' might suffice for all useful purposes. No doubt, the officers of the ospL-anng vessel must have been guilty of gross negligence, or it would have been discovered that -the- Ostsee had never bear comprised within the blockade after- its actual enforce- ment anywhere ; and the judgment that they are to pay costs and expenses would not be a very severe penalty on oath
extreme cases of carelessness. But in fact the penalties of mistaken capture fall oftener on sailors than men of their pro- fession know. In the course of argument on the present case, it came out that the instances of restitution with costs and ex- penses were much more frequent during the last war than even civil legists had previously supposed. Nor in all oases are the offi- cers who are made answerable morally culpable. In the early part of the last war, a number of French and Dutch ships were captured and sent to the Court of Admiralty of San Domingo, a properly constituted Admiralty Court; but it was afterwards dis- covered, that, through some official mistake, no warrant giving a prize jurisdiction against France or Holland had been sent out from this country ; and two years after the capture, the owners and parties interested recovered restitution upon that purely tech- nical ground, with costs and damages. " Surelyras Mr. Pember- ton Leigh observed, " if the absence of misconduct on the part of the captors, if honest error, occasioned by the blunders of the Go- vernment, or the consideration of hardship upon individual officers acting in discharge of their duties, could in any case afford a pro- tection against the claims off-a neutral, such protection would have been afforded by the circumstances of these cases." Between the case of the Ostsee and the Cape Nicola Mole cases there must be every shade of variety and degree; and captors will see the risk they run in the pursuit of prizes.
The adjudicating court can sometimes make an order against the government of the captors, giving the captors indemnification but Mr. Leigh seems to have been precluded from doing so in the present case by the idea that the decision would be equally binding in all countries. America has borrowed her law practice and authorities almost entirely from this country, and has repaid us by giving some of the best authorities that our judges study, while France and,England equally recognize the decision of each other's courts ; and to a certain extent a judge in any civilized country speaks for all on this class of eases. The scruple appears to us to Iv just so far as between captors and owners or mariners of captured ships ; but we do not equally recognize its force as between the officers and their own government. The present law, as distinctly explained by Mr. Pemberton Leigh, leaves the position of the capturing officers in the most unsatisfactory condition logically, and the practical results have often been equally unsatis- factory. In the Cape Nicola Mole cases, the captors were indem- nified by a subscription of the British public ; a fact that proves, first, the injustice which they sustained in having to confront a.loss' entailed upon them through the neglect of their Govern- ment, and secondly, the great probability that they might have re- mained without any redress, for we all knowhow precarious is the result of an appeal to the public. Independently of the injustice, there is a division of authority very inconsistent with the ideas of military or naval discipline. By the present interpretation of the ultimate responsibility, the officers of a war-ship are responsible in certain matters of war to the individual whom they may assail, and not to the government by whom they are commanded. We can see the expediency of making officers conscious that theyare under some responsibility, and of making them feel' it tangibly on proper occasions; but if they were called to account by their own govern- ment, it would be more consistent with the rationale of their position. Taking into account all such cases, it would be more in conformity with justice, convenience, and due authority, if the government paid down the restitution, thus acquitting itself of responsibility to foreigners, and then called its own officers to account, by court-martial if necessary, to ascertain the proper or improper exercise.of their power.
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