Page images

yet in the period of its growth ; but whenever it does speak it utters the rule which the wisdom of the nations has by common consent found to be most in consonance with reason and natural justice. When it gives a rule for the government of a given case, it furnishes the full measure of international obligation in that case—is the only standard by which conduct in that case can be properly tested. In other words, it ascertains what is "equity and justice” between nations.

If seeking to pay a compliment to the eminent men who negotiated the treaty, I think one would hardly choose to say, “they authorized the mixed commission at will to substitute for the rules of right which have been sanctioned by all Christian powers and the courts of both countries the individual notions of the Commissioners thereafter to be chosen."

The application sought of the proposition alluded to is, in substance, that, though the facts before the prize-court fully justified its judgments, according to the international law as even the British courts would themselves declare it to-day, yet this commission may, upon some imaginary ground of equity, be bound nevertheless to award damages ! I can only say that no such result can occur here, except over the most emphatic and decided dissent with which I can oppose it.

The Science (No. 391) was found at anchor in the roadstead outside the mouth of the Rio Grande, within less than a marine league of the Texas shore, which was blockaded. Her outward cargo, then discharged, had consisted in part of confederate grey cloth, (290 bales.) She was, in fact, consigned to Matamoras, and really had discharged her cargo there. Matamoras was forty miles up the river. The Texas shore was accessible and less than two and a half miles distant. Captured November 5, 1863; had been there since August 12.

The Dashing Wave (No. 395) was found at anchor near the Science, but further within American waters. No part of her cargo was war material. There were, however, two boxes (£12,000) of gold coin, £7,000 of which belonged to one Caldwell, whose nationality was unknown, but it is evident he was not British. It appeared from papers on board that at his request Lizardi & Co., British merchants, shipped it as theirs, the bill of lading (p. 193) containing the unusual recital that it was “ all British property. She had discharged no part of her cargo. Caldwell had requested this shipment to be made by Lizardi & Co., as their property, in their name, with £5,000 to be advanced by them to bim, if their consignee at Matamoras approved of proposed investments of it. He had specially requested that it be insured,"including the war risk," (p. 200.) She was, in fact, bouud for Matamoras.

Caldwell made no claim, but a claim was made on behalf of Lizardi & Co. for the whole £12,000, averring that" no other persons are interested therein,” and sworn to by their attorney. Also, in the same behalf and to the same broad extent, by Armando Brothers, to whom the consignee had indorsed the bill of lading.

The Volant (No. 388) was captured in American waters, the same as the Science and Dashing Wave, loaded by same brokers who loaded the Science, and had confederate gray cloth, (15 bales,) being balance of invoice sent by Science. The remainder of her cargo was blankets, shoes, and woolen stockings, and brandy. She had not discharged her cargo. The invoice on board described the cloth (p. 73) as four bales blue mixed, one dark mixed, ten sky blue. It seems that the whole was mixed, no sky blue whatever. The manifest showed boots, but no shoes.

The Sir William Peel (No. 243) was captured at the mouth of the Rio Grande, in Mexican waters. She had been there about three months. Her cargo, as per manifest, had been mostly discharged at Matamoras, and she had taken 904 bales of cotton, part of her return cargo. She had two 25-pound guns mounted, considerable ammunition, small arms, tomahawks, cutlasses, &c., for boarding, engines six feet below water line. Burden, 1,044 tons. Signal lights were ou her at night.

A confederate officer, it was sworn, claimed to have received arms from her, landed on the coast of Texas at night; and this was not contradicted, though there was opportunity. There is other strong inculpatory evidence, which is, however, contradicted ; tending to show both the inward and outward cargoes to have been confederate property.

The question in all these cases is, whether or not there was probable canse for capture. The cargo of each of them was adapted to the Texan market; and there is little doubt that it was expected ultimately to find sale there, whether first to enter into the general stock of Matamoras, or merely to observe the form of passing through that place in transit to Texas.

It seems from the evidence that merchandise unladen at the mouth of the Rio Grande for Matamoras was conveyed to the latter place either in small steamers by the river, or in wagons by land. It seems, also, that this land transportation by wagons was likewise practicable on the Texas side from the coast at the mouth of the river.

It was a matter of notoriety that enormous supplies of military as well as other goods for consumption in the confederacy had been introduced through Texas direct, until the blockade of that coast was made effective, and afterwards through Matamoras. It was equally notorious that there was in Texas a great demand for such goods when these vessels were seized; and that it was the policy of the rebel authorities to ship cotton abroad rather than sell it at home.

These considerations are mentioned to show the strong temptations which existed to introduce goods, and especially arms and ammunition, (which could not go through Matamoras,) into Texas direct. And if accomplished it would avoid Mexican custom-house scrutiny, duties, charges and detentions, and all the inconveniences which flow from circuitous and indirect methods.

Inasmuch as watchful Federal cruisers were present almost constantly any attempt by day to put goods upon the Texas shore would have been too hazardous for probable success. If done at all, it must have been under cover of darkness, and in small quantities at a time, and by the use of small boats. This would consume time, and would be greatly facilitated by nearness of the ship to the Texas shore.

“ The Science.” The foregoing observations apply in all these cases. With a burden of only 300 tons, the length of her visit (nearly three months) was of itself remarkable. She had the strong temptation to violate the blockade, and she had placed herself so near the Texas shore that she had the opportunity to do it. These circumstances of suspicion she created, and did not explain. If a ship may thus put herself so near a blockaded shore for months, where, under cover of the night, she can land her cargo upon it, and this without any peril or cause of suspicion, then, indeed, the right of blockade is less valuable to a belligerent than I believe it to be.

I am thus led to the conclusion, pot merely that the judgment of the Supreme Court in the case of the Science was not clearly wrong, but that that judgment was clearly right.

“ The Dashing Wave.” The foregoing remarks apply with equal force to the case of the Dashing Wave, except that sbe bad but recently arrived at the place where she was seized ; and in this case there is superadded the facts concerning the coin of Caldwell. A Mexican would have no occasion thus to conceal his ownership. A Mexican would not have feared to make claim in the prize court. He was either Mexican or confederate, for his country had political troubles. The conclusion is difficult to avoid that he was an enemy, and his property liable to capture, contaminating all that belonged really to Lizardi & Co.

I perceive no error in the judgment of the Supreme Court in this case, except in its failure to condemn the coin as lawful prize.

“ The Volant” is a case much like the Dashing Wave. There was no simulated ownership of cargo, but there was an apparent effort to mislead by the invoice, as to the cloth—to conceal the fact that it was confederate gray.

I see no sufficient reason to hold in this that the judgment of the Supreme Court was wrong.

“The Sir William Peel” differs from the other cases in the fact that she was captured in Mexican waters, where she had a right to be; though it seems from the evidence that she had previously been in Texan waters. In all other respects the case is stronger against the ship than in either of the others. It is only by giving her the benefit of doubts that I can say she should not have been condemned. I am very clearly of opinion that there was abundant reason for seizing her and sending her in for adjudication.

That she was taken in Mexican waters was a violation of the sovereignty of Mexico, but not of the rights of the ship and cargo, which could be interposed for their protection except by Mexico, was the doctrine held by the Supreme Court. I think the proposition is fully supported by reason and the principles of justice; and that it is a sound principle of international law, best in accord with the adjudged cases.

On the question of the assessment of damages in the case of the Sir Williain Peel, Mr. Commissioner Frazer delivered the following dissenting opinion:

Concerning the assessment of damages in the case of the Sir William Peel, (the judgment of the Supreme Court of the United States being deemed erroneous by my colleagues,) I felt constrained to dissent upon an important point.

The ship, and nearly all the cargo, having been restored, it was material to ascertain the value of the property so restored at the date of restitution. If it was then worth as much as when captured, the only legitimate damages, it seemed to me, would be its use during the period of detention, together with costs and expeuses. The value, I thought, should be taken at the time and place of restitution, and not at a different time. It had been ascertained at that time by an appraisement by the prize court, one of the appraisers being an agent of the claimants. This appraisement was in round numbers, in gold, £67,500. But the claimants chose, at very great expense, to take the property to England, where they sold it, realizing only £39,600; from which has been deducted all expenses of removal to England, insurance, and other expenses of its preservation and care after restitution, (a very considerable aggregate,) and these net proceeds, deducted from the value at the time of capture, have been taken as a part of the damages awarded. I could not resist the conclusion that the claimants had, after restitution, sacrificed the property for but little more than half its value; and I could not agree that the United States should suffer that loss. Ít constitutes about three-fourths of the large sum awarded in the case.


Dissenting opinion of Mr. Commissioner Frazer in the case of the Circas

sian, Nos. 432, 433, and 444. (See p. 148, ante.) The only lawful object of a blockade is to injure the enemy. Hence there cannot, consistently with public law, be a blockade of a port unless it be an enemy's port.

But I am not prepared say that the mere occupancy of a port, how. ever precarious and temporary, by the belligerent maintaining the blockade thereof, is such a possession as makes the port no longer the enemy's, but that of the blockading belligerent, thereby terminating the blockade. I know of no authority which goes to that extent. In such a case I think the question must be regarded as one of first impression, open to the just influence of every consideration which should affect the decision of a new question.

But I do not think this question is necessarily involved in the decision of the cases growing out of the capture and condemnation of the Circassian, and therefore I do not discuss it.

There has been much criticism of the judgment of the Supreme Court in the case of the Circassian, (2 Wall., 135.) That judgment has been questioned in quarters entitled to great respect; and it has, on such occasions, uniformly, I believe, been assumed that at the date of the capture of the vessel, (May 4, 1862,) the port of New Orleans was in the possession of the United States, a possession which subsequent events proved to be (whatever may have been apprehended at the time) permanent and uninterrupted. And it has been assumed that the Supreme Court held that, under such circumstances, the blockade of the port was not brought to an end. This is a grave misapprehension, not only of historical facts but of the doctrine announced by the Supreme Court ; and yet so easy to fall into, that only by care can it be avoided. It is undoubtedly a fact of history that for several days prior to the capture at sea, of this ship, the military forces of the United States had actual possession of the city of New Orleans, were not there immediately men. aced by any hostile force, and ever after held it. It is so natural to confound the city with the port of New Orleans that the error is not wonderful. And yet the distinction is very wide, and practically very important.

The city of New Orleans, of which the United States held possession, was a municipal corporation, possessing geographical boundaries defined by the laws of the State of Louisiana. The boundaries included, at the utmost, only so much of that larger territory called the parish of Orleans as lies on the left bank of the Mississippi River. But the National Government, having by the Constitution the control of commerce, and consequently the power to define the geographical limits of the ports of the United States, had, by act of Congress taking effect September 16, 1850. declared that the port of New Orleans shall be and is hereby so extended as to embrace the whole parish of New Orleans, on both sides of the Mississippi River." (9 Stat. at L., 458.) It was not the city merely, bąt the whole port which had been blockaded. And the question before the Supreme Court was not whether the possession of a port by a blockading belligerent puts an end to the blockade. It is a disregard of the facts so to state it, and it is a misapprehension of the decision of the court to suppose that it was reached by determining that question in the neg. ptive. The real question was deemed by the majority of the court to be whether possession of the city by the United States terminated its block

ade of the port. It needs only a careful reading of the opinion of the Chief Justice to see that he saw clearly the difference between the city and the port of New Orleans; and an examination of the dissenting opinion of Judge Nelson will also show that he entirely confounded the city with the port.

Is it possible to misunderstand the following language found in the opinion of the Chief Justice ?

It (the blockade) applied not to the city alone, but controlled the port which includes the whole 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 was no such possession. Only the city was occupied, not the port.

Nothing can be more certain than that the Chief Justice thought there was an important and very practical distinction between the city and the port of New Orleans with reference to the question of blockade. If not, then this language, marking so clearly the difference between the two things, and dwelling upon the fact that though the city was occupied by the Federal forces, a very large part of the port was not so occupied, was idle verbiage, injected into the opinion for no purpose unless it may have been to increase its volume !

I think the Chief Justice was correct in supposing that the difference between the city and the port was of practical importance in the case. A little consideration will make this quite apparent.

No rebel military force, it is true, occupied that part of the port (the right bank of the river, many miles in length) which was not occupied by the United States on the 4th May, 1862, but it was, de facto, territory of the rebel belligerent, nevertheless. Trade there was trade with the enemy, to prevent which is the lawful purpose of blockade. It is not necessary to the lawful blockade of an enemy's port that the enemy should hold it by the presence of a military force. Suppose, then, that on the 4th May, 1862, the Circassian had steamed into the port with a view to discharge her cargo at any landing on the right bank of the river, within the port, rebel merchants, non-combatants, being ready to receive it there and transport it into the interior, no portion of the goods being contraband, by what right, save that of blockade, could the Federal fleet have interfered to prevent it? The position and strength of that fleet, it is true, enabled it to capture, without fail, every vessel which might have attemped such a thing; but this physical ability to capture did not, per se, confer the right to exercise it; nor did it, per se, end the blockade. It is said that a municipal regulation might have been enacted prohibiting such importations or controlling them; and in execution of such an enactment the force at hand could have been employed; but this is no relief from the dilemma. The right by municipal regulations to close rebel ports and render trade with them unlawful, was claimed by the United States very early in the rebellion. It was proposed, but the right to do so was denied by Great Britain and other neutral nations, and its exercise was forborne in deference to their protests. Even in the argument for the claimant in these cases, the right of the United States to exercise sovereign rights (and belligerent rights at the same time) against the rebels to the prejudice of neutrals, is earnestly combatted by a gentleman who, as a writer upon public law, stands deservedly high as an authority, and who, in his published works, had before expressed the same opinion. Whatever

« PreviousContinue »