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
Page 69 U. S. 136
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 --
Page 69 U. S. 137
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."
"LAIBERT, Neveu"
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."
"P. DESBORDES"
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."
"E. BOUVET"
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,
Page 69 U. S. 138
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."
Page 69 U. S. 139
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
Page 69 U. S. 140
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."
image:a
Page 69 U. S. 141
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.
Page 69 U. S. 142
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.
Page 69 U. S. 148
THE CHIEF JUSTICE delivered the opinion of the Court.
That the rebellion against the national Government, which, in
April, 1861, took the form of assault on Fort Sumter, had, before
the end of July, assumed the character and proportions of civil
war, and that the blockade, established under the President's
proclamation, affected all neutral commerce, from that time, at
least, with its obligations and liabilities, are propositions which
in this Court are no longer open to question. They were not more
explicitly affirmed by the judges who concurred in the judgment
pronounced in the prize cases at the December Term 1862, than by
the judges who dissented from it.
The Government of the United States, involved in civil war,
claimed the right to close, against all commerce, its own ports
seized by the rebels as a just and proper exercise of power for the
suppression of attempted revolution. It insisted and yet insists
that no one could justly complain if that power should be
decisively and peremptorily exerted. In deference, however, to the
views of the principal commercial nations, this right was waived,
and a commercial blockade established. It was expected that this
blockade, effectively maintained, would be scrupulously respected
by nations and individuals who declared themselves neutral.
Page 69 U. S. 149
Of the various propositions asserted and controverted in the
discussion of the cause now under consideration, two only need be
examined in order to a correct understanding of its merits. It is
insisted for the captors,
1. That on the 4th of May, 1862, the port of New Orleans was
under blockade;
2. That the
Circassian, with a cargo destined for New
Orleans, was then sailing with intent to violate that blockade, and
therefore liable to capture as naval prize.
Both propositions are denied by the claimants. We shall consider
them in their order.
First, then, was the port of New Orleans under blockade at the
time of the capture?
The City of New Orleans, and the forts commanding its approaches
from the Gulf, were captured during the last days of April, 1862,
and military possession of the city was taken on the 1st of May.
Did this capture of the forts and military occupation of the city
terminate the blockade of the port?
The object of blockade is to destroy the commerce of the enemy
and cripple his resources by arresting the import of supplies and
the export of products. It may be made effectual by batteries
ashore as well as by ships afloat. In the case of an inland port,
the most effective blockade would 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.
The capture of the forts, then, did not terminate the blockade
of New Orleans, but, on the contrary, made it more complete and
absolute.
Was it terminated by the military occupation of the city?
The blockade of the ports of the insurgent states was declared
from the first by the American Government to be a blockade of the
whole coast, and so it has been understood by all governments. The
blockade of New Orleans was a part of this general blockade. It
applied not to the city alone, but controlled the port, which
includes the whole
Page 69 U. S. 150
Parish of Orleans and lies on both sides of the Mississippi and
all the ports on that river and on the lakes east of the city.
Now it may be well enough conceded that a continuous and
complete possession of the city and the port, and of the approaches
from the Gulf, would make a blockade unnecessary and would
supersede it. But, at the time of the capture of the
Circassian, there had been no such possession. Only the
city was occupied, not the port, much less the district of country
commercially dependent upon it and blockaded by its blockade. Even
the city had been occupied only three days. It was yet hostile; the
rebel army was in the neighborhood; the occupation, limited and
recent, was subject to all the vicissitudes of war. Such an
occupation could not at once, of itself, supersede or suspend the
blockade. It might ripen into a possession which would have that
effect, and it did, but at the time of the capture, it operated
only in aid and completion of the naval investment.
There is a distinction between simple and public blockades which
supports this conclusion. A simple blockade may be established by a
naval officer, acting upon his own discretion or under direction of
superiors, without governmental notification, while a public
blockade is not only established in fact, but is notified, by the
government directing it, to other governments. In the case of a
simple blockade, the captors are bound to prove its existence at
the time of capture, while in the case of a public blockade, the
claimants are held to proof of discontinuance in order to protect
themselves from the penalties of attempted violation. The blockade
of the rebel ports was and is of the latter sort. It was legally
established and regularly notified by the American Government to
the neutral governments. Of such a blockade it was well observed by
Sir William Scott: "It must be conceived to exist till the
revocation of it is actually notified." The blockade of the rebel
ports, therefore, must be presumed to have continued until
notification of discontinuance. [
Footnote 3]
Page 69 U. S. 151
It is indeed the duty of the belligerent government to give
prompt notice, and if it fails to do so, proof of discontinuance
may be otherwise made; but, subject to just responsibility to other
nations, it must judge for itself when it can dispense with
blockade. It must decide when the object of blockade -- namely,
prevention of commerce with enemies -- can be attained by military
force, or, when the enemies are rebels, by military force and
municipal law, without the aid of a blockading force. The
Government of the United States acted on these views. Upon advice
of the capture of New Orleans, it decided that the blockade of the
port might be safely dispensed with, except as to contraband of
war, from and after the 1st of June. The President therefore, on
the 12th of May, issued his proclamation to that effect, and its
terms were undoubtedly notified to neutral powers. This action of
the Government must, under the circumstances of this case, be held
to be conclusive evidence that the blockade of New Orleans was not
terminated by military occupation on the 4th of May. New Orleans
therefore was under blockade when the
Circassian was
captured.
It remains to be considered whether the ship and cargo were then
liable to capture as prize for attempted violation of that
blockade.
It is a well established principle of prize law, as administered
by the courts both of the United States and Great Britain, that
sailing from a neutral port with intent to enter a blockaded port
and with knowledge of the existence of the blockade subjects the
vessel and in most cases its cargo to capture and condemnation.
[
Footnote 4] We are entirely
satisfied with this rule. It was established, with some hesitation,
when sailing vessels were the only vehicles of ocean commerce, but
now, when steam and electricity have made all nations neighbors,
and blockade running from neutral ports seems to have been
organized as a business,
Page 69 U. S. 152
and almost raised to a profession, it is clearly seen to be
indispensable to the efficient exercise of belligerent rights. It
is not likely to be abandoned until the nations, by treaty, shall
consent to abolish capture of private property on the seas, and
with it the whole law and practice of commercial blockade.
Do the
Circassian and her cargo come within this
rule?
The
Circassian was chartered at Paris on the 11th of
February, 1862, by Z. C. Pearson & Co. to J. Soubry, agent, and
the charter party contained a stipulation that she should proceed
to Havre or Bordeaux, and, being loaded, proceed thence with her
cargo to Havana, Nassau, or Bermuda, and thence to a port in
America and "run the blockade, if so ordered by the freighters."
With this charter party was found on the ship at the time of
capture a memorandum of affreightment given to Bouvet, one of the
shippers, and signed "For account and with authority of J. Soubry
-- Laibert, Neveu," and containing this engagement:
"Mr. J. Soubry engages to execute the charter party of
affreightment -- that is to say that the merchandise shall not be
disembarked except at New Orleans, and to this effect he engages to
force the blockade."
With this paper was the following note, signed "P. Desbordes:"
"Sent similar memorandum to the parties concerned." This P.
Desbordes was the ship's husband or agent at Bordeaux.
It is urged on behalf of the claimants that there is no evidence
that Laibert had authority to act for Soubry; but the fact that the
paper was found on the ship raises a presumption that he had that
authority, and puts the burden of proof to the contrary on the
claimants. Besides, it appears from a letter written by Bouvet,
that he forwarded by the ship, enclosed with this letter, the bills
of lading of the goods shipped by him, and also "a copy of the
charter party and
private memorandum." It can hardly be
doubted that the copy of the charter party in the record is this
copy forwarded by Bouvet, or that the memorandum found with it is
the private memorandum of which he writes. The circumstance that a
similar memorandum was sent to the parties concerned
Page 69 U. S. 153
raises an almost irresistible presumption that the other
freighters shipped their merchandise under the same express
stipulation to force the blockade.
It is hardly necessary to go further on the question of intent,
but if doubt remained, it would be dispelled by an examination of
the other papers and facts in the case. Every bill of lading
contained a stipulation for the conveyance of goods described in it
to Havana, in order to receive orders as to their ulterior
destination, and for their delivery at that destination on payment
of freight. Such, we think, is the true import of each bill before
us. Almost every letter found on board the ship and contained in
the record affords evidence of intent to force the blockade. These
letters were written, at Bordeaux, to correspondents at Havana and
New Orleans, and speak of the steamer as "loaded entirely with our
products for New Orleans;" as "arrived hither a month since, to
convey to your place, New Orleans, by forcing the blockade, a very
fine cargo;" as "loaded in our port for New Orleans, whither she
will proceed after touching at Havana;" as "being a very fast
sailer;" as "going to attempt the entrance of your river, after
previously touching at Havana;" as "bound to your port, New
Orleans;" as "bound from Bordeaux to New Orleans;" and as "having
engaged to force the blockade." Most of these letters were written
by shippers, and relate to merchandise described in one or another
of the bills of lading. Finally, it is proved that on the eve and
almost at the moment of capture, the captain ordered the
destruction of a package of letters put on board the ship, after
she had cleared from Bordeaux, at Panillac, a town on the Gironde,
nearer the sea. These letters doubtless related to the ship, the
cargo, or the voyage, probably to all. Their destruction would be a
strong circumstance against the ship and cargo were the other facts
less convincing; taken in connection with them, it irresistibly
compels belief of guilty intent at the time of sailing and time of
capture.
It was urged in argument that the ship was bound primarily to
Havana, and might discharge her cargo there, and
Page 69 U. S. 154
should not be held liable to capture for an intent which would
have been abandoned on her arrival at that place.
We agree that if the ship had been going to Havana with an
honest intent to ascertain whether the blockade of New Orleans yet
remained in force, and with no design to proceed further if such
should prove to be the case, neither ship nor cargo would have been
subject to lawful seizure. But it is manifest that such was not the
intent. The existence of the blockade was known at the inception of
the voyage, and its discontinuance was not expected. The vessel was
chartered and her cargo shipped with the purpose of forcing the
blockade. The destination to Havana was merely colorable. It proves
nothing beyond a mere purpose to touch at that port, perhaps, and,
probably, with the expectation of getting information which would
facilitate the success of the unlawful undertaking. It is quite
possible that Havana, under the circumstances, would have turned
out to be, as was insisted in argument, a
locus
penitentiae, but a place for repentance does not prove
repentance before the place is reached. It is quite possible that
the news which would have met the vessel at Havana would have
induced the master and shippers to abandon their design to force
the blockade by ascending the Mississippi, but future possibilities
cannot change present conditions. Nor is it at all certain that the
purpose to break the blockade would have been abandoned. On the
contrary, it is quite possible that the "ulterior destination"
mentioned in the bills of lading would have been changed to some
other blockaded port. But this is not important. Neither
possibilities nor probabilities could change the actual intention
one way or another. At the time of capture, ship and cargo were on
their way to New Orleans, under contract that the cargo should be
discharged there and not elsewhere, and that the blockade should be
forced in order to the fulfillment of that contract. This condition
made ship and cargo then and there lawful prize.
There was some attempt in argument to distinguish that portion
of the cargo shipped by William Burrows from the
Page 69 U. S. 155
remainder. We do not think it can be so distinguished. The bill
of lading of the goods shipped by him is expressed in the same
terms as the bills of goods shipped by others, and Burrows himself
states that he received it from P. Desbordes & Co. -- the same
Desbordes who sent "to the other parties" memorandums similar to
that which was given to Bouvet, and which stipulated for breach of
blockade. There is no indication in the bill of lading that anyone
except Burrows had any interest in these goods, and no testimony
except his own to that effect. Against the strong circumstances
which tend to prove that they were in equal fault with all the
rest, his not very unequivocal statement that they were destined
for sale in Havana cannot prevail.
The decree of the district court, condemning the vessel and
cargo as lawful prize, must be
Affirmed.
[
Footnote 1]
These forts were situated on opposite banks of the Mississippi
River, about one-third of the way up to New Orleans from its
mouths, and commanded the river approaches to the city.
See chart
infra, page <|69 U.S.
140|>140.
[
Footnote 2]
The state of things was thus described by the commanding general
at a later date in justification of some severe measures adopted by
him:
"We were two thousand five hundred men in a city seven miles
long, by two to four wide, of a hundred and fifty thousand
inhabitants, all hostile, bitter, defiant, explosive; standing,
literally, on a magazine, a spark only needed for destruction."
(General Butler in New Orleans, by Parton, 342.)
In the record in this case, there was a copy of a proclamation
by General Butler at New Orleans,
dated May 1, 1862,
reciting that the City of New Orleans and its environs, with all
its interior and exterior defenses, had surrendered, and making
known the purposes of the United States in thus taking possession
&c., and the rules and regulations by which the laws of the
United States would, for the present, and
during the state of
war, be enforced and maintained. It appears (
see
infra, p. <|69 U.S. 258|>258,
The Venice) that,
though
dated on the 1st, this paper was not published so
early. The printing offices of the city were still under rebel
management, and would not print it. The True Delta, the chief one,
on the 2d, positively refused to do so, even as a handbill, no
request having been ventured to have it printed in the columns of
the paper. Some of General Butler's troops having been printers,
half a dozen of them were sent to the office, and while a file of
soldiers stood beside, a few copies were printed as a handbill,
"enough for the general's immediate purpose." It did not appear in
the paper till the 6th, and then with a defiant protest.
(
See Parton, 282.)
[
Footnote 3]
The Betsey, Goodhue, Master, 1 Robinson 282;
The
Neptune, 1
id. 144.
[
Footnote 4]
Yeaton v. Fry,
5 Cranch 335; 1 Kent's Commentaries 150;
The Frederick
Molke, 1 Robinson 72;
The Columbia, 1
id.
130;
The Neptune, 2
id. 94.
MR. JUSTICE NELSON, dissenting:
I am unable to concur in the judgment of the Court in this case,
and shall proceed to state briefly the grounds of my dissent
without entering upon the argument or discussion in support of
them.
I think the proof sufficient to show that the purpose of the
master was to break the blockade of the port of New Orleans and
that it existed from the inception of the voyage, but in my
judgment the defect in the case on the part of the captors is that
no blockade existed at the port of New Orleans at the time the
seizure was made. The city was reduced to possession by the naval
forces of the United States on the 25th of April preceding the
seizure, and Forts Jackson and St. Philip on the 23d of the same
month. They were situated on the opposite banks of the Mississippi
River, about one-third of the way up to the city from its mouth.
Admiral Farragut announced to the government the capture and
possession of the city on the day it took place, 25th of April, and
General Butler, of the capture of the forts on the 29th. The latter
announced, that the enemy had abandoned all their defensive works
in and around New Orleans, including Forts Pike and Wood, on Lake
Pontchartrain,
Page 69 U. S. 156
and Fort Livingston on Barataria Bay, and had abandoned
everything up the river as far as Donaldsville, some seventy miles
beyond New Orleans. The authority of the Government of the United
States had been restored over the city and its inhabitants, and
over the Mississippi River, and both of its banks and the inlets to
the same, from the ocean or gulf, including also the passage for
vessels by the way of Lakes Borgne and Pontchartrain, the usual
channel for vessels engaged in the coasting trade to and from New
Orleans. And on the 1st of May, General Butler announced by
proclamation that the City of New Orleans and its environs, with
all its interior and exterior defenses, having surrendered to the
combined land and naval forces of the United States, and being now
in the occupation of these forces, the Major General commanding
hereby proclaims the objects and purposes of the United States in
thus taking possession &c., and the rules and regulations by
which the laws of the United States would be, for the present and
during the state of war, enforced and maintained. The seizure of
the vessel and cargo was made between Matanzas and Havana on the
4th of May, several days after the city and port of New Orleans
were reduced, and full authority of the United States extended and
held over them.
A blockade under the law of nations is a belligerent right, and
its establishment an act of war upon the nation whose port is
blockaded. One of the most important of the belligerent rights is
that of blockading the enemy's ports, not merely to compel the
surrender of the place actually attacked or invested, but, as a
means, often the most effectual, of compelling the enemy, by the
pressure upon his financial and commercial resources, to listen to
terms of peace. The object of a blockade, says Chancellor Kent is
not merely to prevent the importation of supplies, but to prevent
export as well as import, and to cut off all communication of
commerce with the blockaded port.
Now the capture and possession of the port of the enemy by the
blockading force, or by the forces of the belligerent, in the
course of the prosecution of the war puts an end to
Page 69 U. S. 157
the blockade and all the penal consequences growing out of this
measure to neutral commerce. The altered condition of things and
state of the war between the two parties in respect to the besieged
port or town make the continuance of the blockade inconsistent with
the code of international law on the subject, as no right exists on
the part of the belligerent as against the neutral powers to
blockade his own ports. This principle was recognized and applied
by Sir W. Scott in the case of
The Trende Soztre, decided
in 1807. [
Footnote 2/1] She was a
Danish vessel and was on a voyage to the Cape of Good Hope, then
the port of an enemy, with contraband articles on board, and was
seized as a prize of war, but the vessel had arrived at the Cape
after that settlement had surrendered to the British forces. The
counsel for the captors insisted that though the settlement had
become British, the penalty would not be defeated, as the intention
and the act continued the same; that there was no case in which
such a distinction had been allowed on the question of contraband.
"The distinction," it was remarked,
"which had been admitted in blockade cases stood altogether on
particular grounds, as arising out of a class of cases depending on
the blockade of neutral ports, in which the court had expressed a
disposition to admit all favorable distinctions."
The court, in delivering its opinion, observes:
"If the port had continued Dutch, a person could not have been
at liberty to carry thither articles of a contraband nature, under
an intention of selling other innocent commodities only and of
proceeding with the contraband articles to a port of ulterior
destination. But before the ship arrives, a circumstance takes
place which completely discharges the whole of the guilt. Because,
from the moment when the Cape became a British possession, the
goods lost their nature of contraband. They were going into the
possession of a British settlement, and the consequence of any
preemption that could be put upon them, would be British
preemption."
The court also observed:
"It has been said that this is a
Page 69 U. S. 158
principle which the court has not applied to cases of
contraband, and that the court, in applying it to cases of
blockade, did it only in consideration of the particular hardships
consequent on that class of cases. But I am not aware of any
material distinction, because the principle on which the court
proceeded was that there must be a
delictum existing at
the moment of the seizure to sustain the penalty."
"I am of opinion, therefore," the judge says, in conclusion,
"that the same rule does apply to cases of contraband, and upon the
same principle on which it has been applied in those of blockade."
See also the case of
The Lisette, [
Footnote 2/2] and of
The Abby,
[
Footnote 2/3] in which the same
principle is declared, and one of them a case of blockade.
The cessation of the blockade necessarily resulted from the
capture and possession of the port and town of New Orleans. They no
longer belonged to the enemy, nor were under its dominion, but were
a port and town of the United States. They had become emphatically
so, for the capture was not that of the territory of a foreign
nation to which we had obtained only the right and title of a
conqueror; but the conquest was over our own territory, and over
our own people, who had by illegal combinations, and mere force and
violence, subverted the laws and usurped the authority of the
general government. The capture was but the restoration of the
ancient possession, authority, and laws of the country, the
continuance and permanency of which, so far as the right is
involved, depend not on conquest, nor on the success or
vicissitudes of armies; but upon the Constitution of the United
States, which extends over every portion of the Union, and is the
supreme law of the land. The doubt, therefore, that arose in the
case of the
Thirty Hogsheads of Sugar v. Boile, [
Footnote 2/4] and which was solved by Chief
Justice Marshall, and related to the case of a foreign conquest,
cannot arise in this case. The Chief Justice observed,
"Some doubt has been suggested whether Santa Cruz, while in
possession of Great Britain, could properly be considered a
British
Page 69 U. S. 159
island. But for this doubt there can be no foundation. Although
acquisitions made during war are not considered permanent until
confirmed by treaty; yet to every commercial and belligerent
purpose they are considered as part of the domain of the conqueror,
so long as he retains the possession and government of them. The
Island of Santa Cruz, after the capitulation, remained a British
island until it was restored to Denmark."
Now as we have seen, it is not necessary to invoke this doctrine
in a case where the capture is of territory previously belonging to
the sovereign power acquiring it, and which is retaken and held
under the organic law and authority of that power.
I have said that the cessation of the blockade in question
resulted from the capture and repossession of the port and town of
New Orleans, and that there was no longer an enemy's port or town
to be blockaded. In addition to this, the moment the capture took
place and the authority of the United States was established, the
municipal laws of that government took the place of the
international law upon which the blockade rested. The reason for
its continuance no longer existed: it had accomplished its object
as one of the coercive measures against the enemy to compel a
surrender. So far as intercourse with the town became material,
whether commercial or otherwise, after the capture and possession,
it was subject to regulation by the municipal laws, and which is
much more efficient and absolute and less expensive than the
measure of blockade. It is true these laws cannot operate
extraterritorially, but within the limit of the jurisdiction, and
which extends to a marine league from the coast, their control over
all intercourse with the port or town is complete. Seizures of
neutral vessels and cargo on the high seas are indeed not
admissible, but blockades are not established for the purpose of
these seizures; they are but incidental to the exercise of the
belligerent right against the port of the enemy.
The proclamation of the President of the 12th of May, 1862,
which announces that the blockade of the port of New Orleans shall
cease after the 1st of June following, has been
Page 69 U. S. 160
referred to as evidence of its continuance to that period. But I
think it will be difficult to maintain the position upon any
principle of international law that the belligerent may continue a
blockading force at the port after it has not only ceased to be an
enemy's, but has become a port of its own. It is not necessary that
the belligerent should give notice of the capture of the town in
order to put in operation the municipal laws of the place against
neutrals. The act is a public event of which foreign nations are
bound to take notice and conform their intercourse to the local
laws. The same principle applies to the blockade, and the effect of
the capture of the port upon it. The event is public and notorious,
and the effect and consequences of the change in the state of war
upon the blockading force well understood.
I have felt it a duty to state the grounds of my dissent in this
case not on account of the amount of property involved, though that
is considerable, or from any particular interests connected with
the case, but from a conviction that there is a tendency on the
part of the belligerent to press the right of blockade beyond its
proper limits, and thereby unwittingly aid in the establishment of
rules that are often found inconvenient, and felt as a hardship,
when, in the course of events, the belligerent has become a
neutral. I think the application of the law of blockade in the
present case is a step in that direction, and am therefore
unwilling to give it my concurrence.
[
See infra, p. <|69 U.S. 258|>258,
The
Venice, a case in some senses, supplementary or complementary
to the present one.]
[
Footnote 2/1]
6 Robinson 390, n.
[
Footnote 2/2]
6 Robinson 387.
[
Footnote 2/3]
5
id. 251.
[
Footnote 2/4]
13 U. S. 9 Cranch
191.
