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have a definite and precise meaning, to go
elsewhere in search of conjecture, in order to restrict or extend the meaning."
Thus it is perceived, where the words are not free from ambiguity and doubt, and do not express plainly, clearly, and distinctly, that which is known to be the sense of the framers of the instrument, there is occasion, and it is proper, to resort to other means of interpretation.
A proclamation which announces a belligerent blockade “pursuant to the law of nations,” and then proceeds to exempt from capture vessels which shall attempt to violate it-having full knowledge of its existence--can hardly be said to be free from ambi: guity. Indeed, it is not easy to perceive how an instrument could, in its terms, be more ambiguous, or more obviously require judicial interpretation, to give it any force or effect whatever.
The language required to be introduced into the proclamation, in order to free it from ambiguity and give it any salutary force, is this, “and without knowledge thereof,” so that it shall read, “if, therefore, with a view to violate such blockade, and without knowledge thereof;" and this is not an interpolation of words expressing an idea not found in the instrument--because the proclamation expressly declares that the blockade is to be “
pursu. ant to the law of nations," and without these words, the blockade would be repugnant to the law of nations, while with them it would be entirely consonant with that law, so that the words are really no interpolation whatever. They but express the manifest idea and intent of the proclamation when announcing a belligerent blockade.
But, it was further argued by the advocates of the claimant's construction of the proclamation, that the addition of the words “and without knowledge thereof,” would annul the force of the immediately previous words, “if with a view to violate such blockade," upon the idea that a vessel could not have a view to violate a blockade without knowledge of it. And why not? If a vessel approach a blockaded port with the view to enter, she approaches with a view to violate the blockade, whether she knows of the blockade or not. It is the entry which is the violation, and the approach with a view to enter is an approach with a view to violation. A criminal violation, which is a violation with knowl. edge, is one thing. An innocent violation, which is a violation without knowledge, is another and very different thing
The treaty of 1794, between the United States and Great Britain, contains the following stipulation:
" Whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is blockaded, it is agreed that every such vessel may be turned away from such port, but shall not be detained nor confiscated, unless after notice she shall again attempt to enter."
The neutral commerce of Great Britain, more than that of all other nations, was to be affected by the belligerent blockade about to be established; and it would almost seem as if the framer of the proclamation had this treaty before him, and inadvertently omitted the insertion of the italicized words.
The flag-officer of the Atlantic naval squadron of
the United States, in announcing, eleven days after the proclamation was issued, that the blockade ordered was effectively established, supplied the omitted words by declaring that “ All vessels, passing the capes of Virginia, coming from a distance, and ignorant of the proclamation, will be warned
Although immunity from capture was urged by claimants upon the literal construction of the Executive proclamation as here stated, in many adjudicated cases the question seems to have been judicially determined, upon more full discussion, in the case of The Empress, decided in the Federal court of New York, and The Revere, decided by the Federal court of Massachusetts, and in the case of The Admiral, decided in the Federal court of Pennsylvania, and afterward on appeal by the Circuit Court of the United States for the Third Circuit.
The learned judge of the District Court of New York, in deciding the former of these cases, says: “But it is contended by the claimants, that there can be no actual or intended violation of the blockade by a neutral vessel, subjecting her to capture, whatever may be her knowledge of its existence, and whatever the moral turpitude of her acts, until after she has had official notice of the fact that the port visited is under blockade indorsed on her register; that the offence to which the penalty attaches can only be committed by an effort of the vessel to enter the port after such formal warning has been received by her.
Vide the cases of The Hiawatha, The Hallie Jackson, The Lynchburg, The Crenshaw, The Hannah M. Johnson, The General Green. MS. Decisions U. S. Dist. Ct., N. Y.
“This argument is raised upon the terms used by the President, in his proclamation of April 19th, 1861, which are: “ If, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning, and if the same ves. sel shall again attempt to enter or leave the blockaded port, she will be captured, &c.”
The official announcement by the proclamation, is, that the President has deemed it advisable to set on foot a blockade of the ports of the states enumerated, “in pursuance of the laws of the United States, and of the law of nations, and Commodore Pendergrast on the 30th of the same month, gave public warning to all persons interested, that he had sufficient naval force to carry out the blockade, and that “vessels passing the capes of Virginia, coming from a distance, and ignorant of the blockade,” will be warned, &c.
“ The paramount fact announced by the procla mation, and the public warning by Commodore Pendergrast, was, that the blockade was laid in pursuance of the laws of the United States, and of the laws of nations. The law of nations is explicit and indubitable, that a neutral vessel, know ing a port to be in a state of blockade, and sailing toward it, with intent to evade such blockade, commits a fraud upon the belligerent rights of the blockading power, and is subject to forfeiture there. for ( 3 Phillimore's International Law, 397; Wheaton, Int. Law, 541, 550; 1 Kent, 148, 149; 1 Duer, on Ins., 663, § 39; Flander's Mar. Law, 168, $ 225, note 3; 2 Arnold's Mar. Ins.; 747 Perkins' ed.).” After a consideration of the question, how far, if at all, this rule of international law may have been modified, or relaxed by the latest authorities (which has been quoted from this able opinion, in another connection), the court proceeds :
“ The question then remains, whether this vessel is exempt from that consequence, by the terms of the President's proclamation of April 19th, 1861.
Previous to the capture herein, the Executive order of blockade was ratified by act of Congress (act of August 6th, 1861, § 3), and that ratification, independent of all adjudications by the courts on the subject, disposes of the objection still continued in these defences, as to the want of authority in the President to impose it, and the only question of moment resting on the case, is, as to the interpretation of its effect, under the laws of the United States, and the law of nations."
“The United States, as a neutral power, has never insisted with belligerent nations, that the public law, required, that a neutral vessel approaching a blockaded port, was, in all cases entitled to receive there notice of such blockade, and to be warned off, and be free from liability, for an approach to the port, unless attempted by the neutral after such warning."
“This matter has been made the subject of early treaty compacts with England in 1794 (8 Stat. at Large, 125, art. 18), with France in 1800 (8 Stat. at Large, 184, art. 12), and with various other commercial nations. By these treaties, the principle recognized by this country, as the accepted and governing principle of international law, is declared