The Circassian - 69 U.S. 135 (1864)
U.S. Supreme Court
The Circassian, 69 U.S. 2 Wall. 135 135 (1864)
69 U.S. (2 Wall.) 135
1. A blockade may be made effectual by batteries on shore as well as by ships afloat, and, in case of an inland port, may be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels attempting to enter.
2. The occupation of a city by a blockading belligerent does not terminate a public blockade of it previously existing, the city itself being hostile, the opposing enemy in the neighborhood, and the occupation limited, recent, and subject to the vicissitudes of war. Still less does it terminate a blockade proclaimed and maintained not only against that city, but against the port and district commercially dependent upon it and blockaded by its blockade.
3. A public blockade -- that is to say a blockade regularly notified to neutral governments, and as such distinguished from a simple blockade or such as may be established by a naval officer acting on his own discretion, or under direction of his superiors -- must, in the absence of clear proof of a discontinuance of it, be presumed to continue until notification is given by the blockading government of such discontinuance.
4. A vessel sailing from a neutral port with intent to violate a blockade is liable to capture and condemnation as prize from the time of sailing, and the intent to violate the blockade is not disproved by evidence of a purpose to call at another neutral port, not reached at time of capture, with ulterior destination to the blockaded port.
5. Evidence of intent to violate blockade may be collected from bills of lading of cargo, from letters and papers found on board the captured vessel, from acts and words of the owners or hirers of the vessel and the shippers of the cargo and their agents, and from the spoliation of papers in apprehension of capture.
The steamship Circassian, a merchant steamer under British colors, was captured with a valuable cargo by the United States steamer Somerset for an attempted violation of the blockade established in pursuance of the proclamation of the President, dated 19th of April, 1861. Both vessel and cargo were condemned as lawful prize by the District Court for the Southern District of Florida, and the master, as representative of both, now brought the decree under the review of this Court by appeal.
The capture was made on the 4th of May, 1862 -- the date is important -- seven or eight miles off the northerly coast of Cuba, about half way between Matanzas and Havana, and
about thirty miles from Havana, the ship at the time ostensibly proceeding to Havana, then distant but two or three hours' sail. The main voyage was begun at Bordeaux. There she took a cargo -- no part of it contraband -- and was making her way to Havana when captured. Pearson & Co., of Hull, British subjects, were her ostensible owners. The cargo was shipped by various English and French subjects, and consigned to order. The bills of lading spoke of the ship as "loading for the port of Havana for orders," and the promise of the bills was to deliver the packages
"to the said port of Havana, there to receive orders for the final destination of my said steamer, and to deliver the same to Messrs. Brulatour & Co., or their order, he or they paying me freight in accordance with the terms of my charter party, which is to be considered the supreme law as regards the voyage of said steamer, the orders to be received for her and her final destination."
The master swore positively that he did not know of any destination after Havana, nor did the depositions directly show an intention to break the blockade.
The evidence of this intent rested chiefly on papers found on the vessel when captured and in the inference arising from the spoliation of others. Thus while on her way from Cardiffe to Bordeaux, the ship had been chartered by Pearson & Co. to one J. Soubry, of Paris, agent for merchants loading her; the charter party containing a stipulation that she should proceed to Havre or Bordeaux as ordered, and then to load from the factories of the said merchants a full cargo, and
"therewith proceed to Havana, Nassau, or Bermuda, as ordered on sailing, and thence to proceed to a port of America, and to run the blockade, IF SO ORDERED by the freighters."
With this charter party was the following:
"Memorandum of affreightment"
"Taken on freight of Mr. Bouvet, Jr., by order and for account of Mr. J. Soubry, on board of the British steamer Circassian &c., bound to Nassau, Bermuda, or Havana, the quantity &c. Mr. J. Soubry engages to execute the charter party of affreightment --
that is to say that the merchandise shall not be disembarked but at the port of New Orleans, and to this effect he engages to force the blockade, for account and with authority of J. Soubry."
And on this was endorsed, by one P. Debordes, who was the ship's husband or agent at Bordeaux, these words:
"BORDEAUX, 15 February, 1862"
"Sent similar memorandum to the parties concerned."
So, too, Bouvet wrote his correspondents in New Orleans, as follows, the letter being found on the captured vessel:
"BORDEAUX, 1 April, 1862"
"MESSRS. BRULATOUR & CO., New Orleans:"
"Confirming my letter of the 29th ult., copy of which is annexed, I enclose herewith bills lading for 659 packages merchandise, and 92 small casks U. P.; also, copy of charter party, and private memorandum, per Circassian, in order that you may have no difficulty in settling the freight by that vessel."
"The Circassian has engaged to force the blockade, but should she fail in doing so, you will act in this matter as you may deem best. I entrust this matter entirely to you."
"Accept, gentlemen, my affectionate salutations."
In addition to these papers, various private letters, mostly, of course, in French, from persons in Bordeaux to their correspondents at Havana and New Orleans, were found on the vessel. One of these spoke of the steamer as "loading entirely with our products for New Orleans, where, it is said, she has engaged to introduce them;" another describes her "as arrived at Bordeaux, a month since, to take on board a fine cargo, with which to force the blockade;" a third, as "a very fast sailer, loaded in our port for New Orleans, where she will proceed, after having touched at Havana;" a fourth,
as "about to try to enter your Mississippi, touching, previously, at Havana." So others with similar expressions. A British house of Belfast, sending a letter by her to Havana, "takes it for granted that she will proceed with her freight to New Orleans." A French one of Bordeaux had a different view as to her getting there. This one writes:
"We are going to have a British steamer here of a thousand tons cargo for your port. We shall ship nothing by her, because the affair has been badly managed. Instead of keeping it a secret, it has been announced in Paris, London, and Bordeaux. Of course, the American Government is well informed as to all its details, and if the steamer ever enters New Orleans, it will be because the commanding officer of the blockading squadron shuts his eyes. If he does not, she must be captured."
In addition to this evidence, it appeared that a package of letters, which were sent on board at Panillac, a small place at the mouth of the Gironde, after the Circassian had cleared from Bordeaux and was setting off to sea, were burned after the vessel hove to and before the officers of the Somerset came on board at the time of capture.
So far with regard to evidence of intent to break the blockade. This case, however, presented a special feature.
The capture, as already noted, took place on the 4th of May, 1862; at which date the City of New Orleans, for whose port the libellants alleged that the vessel had been really about to run, was in possession, more or less defined and firm, of the United States. The history was thus:
A fleet of the United States under Commodore Farragut having captured Forts Jackson and St. Philip on the 23d of April, [Footnote 1] reached New Orleans on the 25th. On the 26th, the commodore demanded of the mayor the surrender of the city. The reply of the mayor was "that the city was under martial law, and that he would consult General Lovell."
The rebel Lovell declared, in turn, that "he would surrender nothing," but at the same time that he would retire and leave the mayor unembarrassed. On the 26th, the flag officer sent a letter, No. 2, to the mayor, in which he says:
"I came here to reduce New Orleans to obedience to the laws, and to vindicate the offended majesty of the government. The rights of persons and property shall be secured. I therefore demand the unqualified surrender of the city, and that the emblem of sovereignty of the United States be hoisted upon the city hall, mint, and custom house by meridian of this day. And all emblems of sovereignty other than those of the United States must be removed from all public buildings from that hour."
To this the mayor transmitted on the same day an answer, which he says "is the universal sense of my constituents no less than the prompting of my own heart." After announcing that "out of regard for the lives of the women and children who crowd this metropolis," General Lovell had evacuated it with his troops, and "restored to me the custody of its power," he continues:
"The city is without the means of defense. To surrender such a place were an idle and an unmeaning ceremony. The place is yours by the power of brutal force, not by any choice or consent of its inhabitants. As to hoisting any flag other than the flag of our own adoption and allegiance, let me say to you that the man lives not in our midst whose hand and heart would not be paralyzed at the mere thought of such an act; nor can I find in my entire constituency so wretched and desperate a renegade as would dare to profane with his hand the sacred emblem of our aspirations. . . . Your occupying the city does not transfer allegiance from the government of their choice to one which they have deliberately repudiated, and they yield the obedience which the conqueror is entitled to extort from the conquered."
At 6 A.M. of the 27th, the national flag was hoisted, under directions of Flag-officer Farragut, on the mint, which building lay under the guns of the government fleet, but at 10 A.M. of the same day an attempt to hoist it on the custom house was abandoned; "the excitement of the
crowd was so great that the mayor and councilmen thought that it would produce a conflict and cause great loss of life."
On the 29th, General Butler reports that he finds the city under the dominion of the mob. "They have insulted," he says, "our flag; torn it down with indignity. . . . I send a marked copy of a New Orleans paper containing an applauding account of the outrage."
On the same day, that General reported thus:
"The rebels have abandoned all their defensive works in and around New Orleans, including Forts Pike and Wood on Lake Pontchartrain, and Fort Livingston on Barataria Bay. They have retired in the direction of Corinth, beyond Manchac Pass, and abandoned everything in the river as far as Donaldsonville, some seventy miles beyond New Orleans."
To the reader who does not recall these places in their relations to New Orleans, the diagram on the page preceding will present them.
A small body of federal troops began to occupy New Orleans on the 1st of May. On the 2d, the landing was completed. The rebel mayor and council were not deposed. There was no armed resistance, but the city was bitterly disaffected, and was kept in order only by severe military discipline, and the rebel army was still organized and in the vicinity. [Footnote 2]
The blockade in question, as already mentioned, was declared by proclamation of President Lincoln in April, 1861, and was a blockade of the whole coast of the rebel states. No action to terminate it was taken by the Executive until the 12th of May, 1862, when, after the success of Flag-officer Farragut, the President issued a proclamation that the blockade of the port of New Orleans might be dispensed with, except as to contraband of war, on and after July 1 following.
The case thus presented two principal questions:
1. Was the port of New Orleans, on the 4th of May, under blockade?
2. If it was, was the Circassian, with a cargo destined to that place, then sailing with an intent to violate it?
Supposing the cargo generally guilty, a minor question was, as to a particular part of it, asserted to have been shipped by Leech & Co., of Liverpool, British subjects, and of which a certain William Burrows was really, or in appearance, "supercargo."
Burrows himself swore -- his own testimony being the only evidence on the subject -- that he did not know of any charter party for the voyage; that he received the bills of lading (which, like all the bills, were in French) from Messrs. Desbordes & Co., the ship's agents at Bordeaux; that he knew nothing about any papers relating to other portions of the cargo; that he was going to Havana to sell this merchandise, shipped by Leech, Harrison & Co., and was to return to Liverpool, either by the way of St. Thomas or New York; that he knew of no instructions to break the blockade; had heard nothing about the vessel's entering or breaking the blockade of any port, either before sailing or on the voyage, from any person as owner or agent, or connected with the vessel or cargo. No letters or other papers were found compromising this portion of the cargo other than as above stated.
The statutory port of New Orleans, as distinguished from the City of New Orleans itself, it may here be said, includes an extended region along the Mississippi above the city, parts of which were, at this date and afterwards, in complete possession of the rebels.