Annotate this Case
72 U.S. 28 (1866)
U.S. Supreme Court
The Peterhoff, 72 U.S. 5 Wall. 28 28 (1866)
72 U.S. (5 Wall.) 28
1. A blockade is not to be extended by construction.
2. The mouth of the Rio Grande was not included in the blockade of the ports of the rebel states, set on foot by the national government during the late rebellion, and neutral commerce with Matamoras, a neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free.
3. Semble that a belligerent cannot blockade the mouth of a river, occupied on one bank by neutrals with complete rights of navigation.
4. A vessel destined for a neutral port with no ulterior destination for the ship, or none by sea for the cargo to any blockaded place, violates no blockade.
Hence trade, during our late rebellion, between London and Matamoras, two neutral places, the last an inland one of Mexico, and close to our Mexican boundary, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States, was not unlawful on the ground of such violation.
5. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea.
6. The classification of goods as contraband or not contraband, which is best supported by American and English decisions, divides all merchandise into three classes.
i. Articles manufactured, and primarily or ordinarily used for military purposes in time of war.
ii. Articles which may be and are used for purposes of war or peace according to circumstances.
iii. Articles exclusively used for peaceful purposes.
7. Merchandise of the first class destined to a belligerent country or places occupied by the army or navy of a belligerent is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege.
8. Parts of a cargo described in a ship's invoices as cases of "artillery harness," as "men's army Bluchers," as "artillery boots," and as "government regulation gray blankets," come within the first class.
9. Contraband articles contaminate the parts not contraband of a cargo if belonging to the same owner; and the non-contraband must share the fate of the contraband.
10. In modern times, conveyance of contraband attaches in ordinary cases only to the freight of the contraband merchandise. It does not subject the vessel to forfeiture.
11. But in determining the question of costs and expenses, the fact of such conveyance may be properly taken into consideration with other circumstances, such as want of frankness in a neutral captain engaged in
a commerce open to great suspicion and his destruction of some kind of papers in the moment of capture, and this although it seemed almost certain that the ship was destined to a port really neutral, and with a cargo for the most part neutral in character and destination:
12. The captain of a merchant steamer, when brought to by a vessel of war, is not privileged by the fact that he has a government mail on board, from sending, if required, his papers on board the boarding vessel for examination; on the contrary, he is bound by that circumstance to the strictest performance of neutral duties and to special respect of belligerent rights.
13. Citizens of the United States faithful to the Union, who resided in the rebel states at any time during the civil war, but who during it escaped from those states, and have subsequently resided in the loyal states, or in neutral countries, lost no rights as citizens by reason of temporary and constrained residence in the rebellious portion of the country.
Appeal from a decree of the district court for the Southern District of New York, condemning for attempt to break blockade, a vessel ostensibly on a voyage from London to the mouth of the Rio Grande, with a cargo documented for a neutral port.
The case was thus:
The territory of the United States, as is generally known, is separated on one part of its boundary from the Republic of Mexico by the Rio Grande, a large stream, entering by a broad mouth, and by a course at that point nearly east, the Gulf of Mexico. At the mouth of the river, a bar prevents the passage of vessels drawing over seven feet of water. By treaty between the two nations, the boundary line begins in the Gulf three leagues from land opposite the mouth of the river and runs northward from the middle of it. The navigation of the stream is also made free and common to the citizens of both nations, without interruption by either without the consent of the other, even for the purpose of improving the navigation.
About forty miles up the river, on the United States bank of the stream, in the State of Texas, stands the American Town of Brownsville, and nearly opposite, on the Mexican bank, the old Spanish one of Matamoras, separated but by the river. The natural facilities of intercourse between the two places are thus extremely easy. [See sketch infra, p. <|72 U.S. 173|>173.]
Both towns are approached from the Gulf by the Rio Grande; but Brownsville may be also approached through places more on the northern coast of the Gulf, and wholly within the federal territory, to-wit, by the Brazos Santiago and the Boca Chica.
In this state of geographical position and of treaty with Mexico, the President, on the 19th April, 1862, during the late rebellion in the Southern states, and with the purpose, as declared to foreign governments, to "blockade the whole coast from the Chesapeake Bay to the Rio Grande," declared the intention of the national government to set on foot a blockade of those states "by posting a competent force so as to prevent the entrance or the exit of vessels," and a naval force was soon after stationed near the mouth of the Rio Grande. No force of any kind was placed along the Texan bank of the river, that region being then in rebel possession, as the opposite was in Mexican.
Nothing was said in these proclamations of the port of
Brownsville being blockaded, though in a subsequent proclamation (February 18, 1864), relaxing the blockade, it was recited as a matter of fact that the place had been blockaded.
With this blockade above mentioned, as made by the proclamation of 19th April, in force, the Peterhoff, a British built and registered merchant screw propeller, drawing sixteen feet of water, not a fast sailer, set sail from London upon a voyage documented by manifest, shipping list, clearance, and other papers, for the port of Matamoras.
The bills of lading, of which there were a large number, all stipulated for the delivery of the goods shipped "off the Rio Grande, Gulf of Mexico, for Matamoras," adding, that they were to be taken from alongside the ship, providing lighters can cross the bar.
With the exception of a portion consigned to the orders of the captain, which was owned by the owners of the vessel, the cargo was represented in agency or consigneeship chiefly by three different persons on board the vessel as passengers -- Redgate, Bowden, and Almond -- all natives of Great Britain. Redgate stated that a large portion was consigned to him as a "merchant residing in Matamoras," and that, "had the goods arrived there, they were to take the chances of the market." Bowden testified to the same effect, that, had they arrived, the portion represented by him would have taken the chances of sale in the market, and the proceeds been returned to the shippers. Almond, that it was his intention to settle in Matamoras, and to sell the goods represented by himself, "taking my chance in the market for the sale."
At the time of this voyage, Mexico was at war with France -- that is to say, France was endeavoring to place Prince Maximilian on the throne of Mexico, against the wishes of its people and of its legitimate President, Juarez, and was supporting its pretensions by force of arms in the Mexican territory.
The cargo of the Peterhoff, valued at $650,000, was a miscellaneous cargo, and was shipped by different shippers, all
British subjects except one, Redgate, hereafter described. A part of it was owned by the owner of the vessel.
Of its numerous packages, a certain number contained articles useful for military and naval purposes in time of war. Among them, as specially to be noted, were thirty-six cases of artillery harness in sets for four horses, with two riding saddles attached to each set. The owner of this artillery harness owned also a portion of the non-military part of the cargo. There were 14,450 pairs of "Blucher" or army boots; also "artillery boots;" 5,580 pairs of "government regulation gray blankets;" 95 casks of horseshoes of a large size, suitable for cavalry service; and 52,000 horseshoe nails.
There were also considerable amounts of iron, steel, shovels, spades, blacksmiths' bellows and anvils, nails, leather; and also an assorted lot of drugs; 1,000 pounds of calomel, large amounts of morphine, 265 pounds of chloroform, and 2,640 ounces of quinine. There were also large varieties of ordinary goods.
Owing to the blockade of the whole Southern coast, drugs, and especially quinine, were greatly needed in the Southern states.
During the rebellion, Matamoras, previously an unimportant place, became suddenly a port of immense trade; a vast portion of this new trade having been, as was matter of common assertion and belief, carried on through Brownsville, between merchants of neutral nations and the Southern states. And it was stated at the bar that the federal government had, for reasons of public policy, even granted several clearances from New York to Matamoras during the rebellion, though only on security being given that no supplies should be furnished to persons in rebellion.
The Peterhoff never reached the Rio Grande. She was captured by the United States vessel of war Vanderbilt on suspicion of intent to run the blockade and of having contraband on board. When captured she was in the Caribbean Sea south of Cuba, and in a course to the Rio Grande, through the Gulf of Mexico, having some days previously been
boarded, but not captured, by another federal cruiser, the Alabama.
She had on board when captured a British mail for Matamoras, closed under official seal. The officer of the Vanderbilt, on boarding her, asked her captain to take to that vessel his papers. This the captain of the Peterhoff refused to do, assigning as the ground of refusal that he was in charge of her Majesty's mail, and requiring that all papers should be examined on the Peterhoff itself.
In addition it appeared that papers or articles of some kind had been destroyed in view of capture. A "package" was thrown overboard. The captain of the Peterhoff, having in a general way presented a similar statement on the examination in preparatorio, gave, on a supplemental examination, this circumstantial account of the matter:
"Before leaving Falmouth, I received a telegram from the owner of the ship, instructing me to question the passengers as to whether they had any documents in their possession. I immediately called them together. They, one and all, including a passenger named Mohl, declared that they had nothing in their possession of such description. After the ship left Falmouth, Mr. Mohl came to me, and stated that he had a small packet of white powder -- 'patent white powder' he called it -- in which he and some of his friends were interested. I said, 'You had better deliver it up to me, for it is a dangerous article to have on board.' He gave it to me and I locked it up in my stateroom. I asked him why he had not mentioned this before leaving Falmouth. He replied, that as it was neither papers or writings of any kind, he did not think it requisite. When the Alabama approached, us I called Mr. Mohl and told him that I did not like having this packet of powder on board, and that if the ship was likely to be searched, it must either be opened or destroyed, and then gave it in charge of one of my officers, the second officer, with orders to throw the package overboard if I instructed him. Our vessel not being examined by the Alabama, it was not then destroyed. After we were boarded by the Vanderbilt, I called Mr. Mohl again and requested him to let me see the contents of the package. To this he objected, saying it was a patent, and could not be seen by any but himself and friends. So
I ordered it to be thrown overboard, fearing it might jeopardize the ship in some way, and it was accordingly thrown overboard. I believe it to have been white powder as stated by Mr. Mohl, and had no reason to believe otherwise, and do not think anyone knew the contents of this packet but this same Mr. Mohl."
One of the seamen, however, testified that the package thrown overboard was a box into which the captain put papers, and that giving it to the second officer he told him to put something in the box to sink it, and on raising of his finger to let it go overboard.
Another seaman, that the package was "a sealed parcel wrapped in brown paper."
A third, that it was a package sewed up in canvas weighted with lead so as to sink it, and was spoken of by the captain as "dispatches;"
"that after sending for Mr. Mohl to-witness the necessity for throwing the package overboard, he then ordered the second officer to throw it over from a part of the ship where it would not be observed by the Vanderbilt, which he did; and that Mr. Mohl appeared very much depressed at the necessity."
Mohl was permitted by the government after the capture to go at large.
The captain admitted that he had torn up some letters, which he swore were letters from his wife and father; swearing also that no other papers were destroyed.
A small portion of the cargo, about 150, was owned by, and a large part, about 20,000, was consigned to a person named Redgate, already referred to. In the part consigned he was interested by way of commission. Redgate was a native of England, but had come to Texas while it was a Mexican province, and was a resident there when it was annexed to the United States. He made this statement, not disproved, of his conduct during the rebellion.
"Since the annexation of Texas to the United States, the deponent has borne true allegiance to the United States in every matter and thing. In every way and shape possible for him to act, he opposed the secession of the State of Texas from the
Union. At the time of the passage of the so-called secession ordinance of that state, he was a member of its legislature. After the passage, he, together with fourteen members of the house of representatives, four senators, and six protesting delegates of the secession convention, signed an address to the people of Texas, urging them to resist the ordinance and to remain in the Union. That address was printed and circulated, as far as possible, throughout the state. He contributed to the circulation of the said address a very considerable amount of money. [Address produced.] Owing to the state of public feeling in Texas at the time of the publication and circulation of the address, the lives of the signers of the same were greatly periled; one of them has since been murdered, and another is now in duress, as the deponent is informed and believes; and the remainder of the said twenty-four senators, members, and protesting delegates (amongst the latter this deponent) are all, or nearly all, in exile from the State of Texas as political refugees. After the promulgation of the said address, and before leaving the State of Texas, as he has reason to believe, he narrowly escaped assassination, and he knows that his life was conspired against by the secessionists in consequence of his political opinions and of his opposition to secession."
After leaving Texas, Redgate became a resident of Matamoras, trading there and thence. He was on board the vessel when captured, superintending his interest.
The vessel having been taken into New York, was there libeled in the district court as prize of war. Claim was filed by the captain, intervening for the interest of his principals the "owners of the steamer and cargo;" also by Redgate as "owner, agent, and consignee of a large portion of the cargo," and by Almond as "owner, agent, and consignee" of another portion.
The district court condemned the vessel and cargo as lawful prize of war.
The case was now before this Court, on the appeal of Jarman, professing to represent the vessel and cargo, and on the appeals of Redgate and Almond, professing to represent their respective portions of the cargo.