Page images


the facts concerning tbe 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 lier the benefit of doubts that I can say she should not bave been condemned. I am very clearly of opinion that there was abundant reason for seizing ber 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 Wil liam 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 abont three-fourths of the large sum awarded in the case.


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

sian, No8. 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, however 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 bad actual possession of the city of New Orleans, were not there immediately menaced by any bostile 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 bereby so extended as to embrace the whole parish of New Orleans, on both sides of the Mississippi River.” 9 Stat. at L., 468.) It was not the city merely, but the whole port which had been blockaded. And the question before the Supreme Court was not whetber 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. etive. 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 tbe 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 may be true as to that, it is very certain that Great Britain, having contributed more than any other nation to induce the United States to forbear, by denying the right, cannot now fairly claim for her subjects the benefit of a principle which, at the time, she so stoutly denied. Municipal regulations probibiting neutral import trade with any part of the port of New Orleans not in Federal possession, would have been as obnoxious to Great Britain as if a like attempt had been made at that time concerning Mobile, Charleston, or Savannah. The principle which would have justified it in the one case, would have maintained it in all.

If the consideration of the case left it doubtful whether the judgment of the Supreme Court was in accordance with public law, it would be our plain duty, according to all authority, to disallow these claims. So much deference in a case of doubt is due to a deliberate judgmeut of a court whose independence, impartiality, and learning has given it a cbaracter in Great Britain not less lofty than it possesses at home.

But I do not doubt. Comments and criticisms upon the judgment of the court bad fallen under my eye; trusting to which, I confess I had been somewhat impressed with serious doubts (to say the least) of the legality of the condemnation. But a very careful study of the case sbows that, in making such criticisms, no account has been taken of the important fact that the possession of the United States forces at New Orleans did not extend to the whole port when the ship was seized ; no such entire possession being anywhere directly asserted. Tbat the er. ror is one of inference, resulting from the fact, doubtless, that the wider area of the port, as contradistinguished from the city of the same name, has usually escaped attention. It follows, therefore, that the principle supposed to be violated by the court was really not violated at all, and that the question was not that wbich has been sometimes supposed. It is not, I may hope, improper to say that the best care and judgment which I am able to bring to the consideration of the case has resulted in a clear conviction tbat the condemnation of the Circassian was correct.

[ocr errors]

Opinion of Mr. Commissioner Frazer in the cases of the Boyne, the Mon

mouth, and the Hilja, Nos. 216, 315, and 467. (See p. 153, ante.) The allowance of prospective earnings by vessels was denied by the tribunal at Geneva unanimously. It is not, so far as I am aware, allowed by the municipal law of any civilized nation anywhere. The reason is obvious and universally recognized among jurists. It is not possible to ascertain such earnings with any approximation to certainty. There are a thousand unknown contingencies, the happening of any of which will render incorrect any estimate of them, and hence result in injustice.

Who can say that the Monmouth would have reached Savannab at all? That she could have procured a cargo of cotton at id. per pound, the lowest freight in proof? Who can say that she would have got better or as good rates as that? Why could she have done better? There is no reason. Who can say that she could have been laden and sailed before the blockade would have stopped her? The witnesses do not say so, but only if she had met no detention or accident.” Can this commission say so? It is palpable that we can only conjecture, and conjecture is no fit basis for an award of damages. We should have had evidence more satisfactory from the claimant, such as the prevailing rate of charter of such a vessel at the time and place. Under such circumstances we are left to estimate the value of the vessel for return.cargo upon very unsatisfactory evidence. I base my estimate upon cotton-freight at id. per pound, because there is, in my judgment, a greater probability, in view of all contingencies, that this is above rather than below a just estimate.

These observations apply also to the case of the Boyne, heretofore decided. I now doubt whether this is not too much. It assumes that each contingency would have been avoided, the happening of any one of which would have prevented this vessel from doing as well as some others; and this assumption in favor of the claimant is quite as much as, in my judgment, we may make, with due regard to public law, as declared at Geneva, and to the principles of justice, as recognized everywhere.

The Monmouth, (No. 315.) The President, by proclamation of April 19, 1861, gave public notice of a purpose to blockade the ports of South Carolina, Georgia, and of the States south thereof, announcing that a “competent force would be posted ” for that purpose. The proclamation

" announced further that any vessel approaching or attempting to leave “either of said ports” with a view to violate "such blockade,” woull be warned by the commander of “one of the blockading vessels,” who would indorse such warning and the date thereof on her register, and any subsequent attempt of the same vessel to enter or leave the blockaded port(certainly meaning every port covered by the warniug) would result in capture. It cannot be supposed that it was intended that this warning was to be repeated off each port blockaded.

In these cases the warning was by a vessel blockading Charleston and off that port before there was any actual blockading force off Savannah, and was indorsed thus:

Boarded, informed of the blockade, and warned off the coast of all the Southern States by the United States steamship Niagara. May 12, 1861.


Licutenant United States Nary. This warning was not, and is not, disavowed. It must, therefore, have the same effect as if the officer giving it had been expressly instructed by the highest authority to give it in that form. It must be regarded as the act of the United States, and was notice to the vessel that all the Southern ports embraced within the proclamation were then actually blockaded, and that any subsequent attempt of the vessel warned to enter any of such ports would result in capture.

A vessel bound for Savannah, thus warned, it is true, might have dis. regarded the warning, and could lawfully have proceeded to Savannah because there was not, in fact, any force blockading that port. If captured she would, unquestionably, have been discharged with damages by the prize court.

But must the neutral merchantman run the hazard of attempting to enter Savannah! Had she found there an actual blockade and been captured, her previous warning would have been good, and her condemnation as good prize would have been certain. There is in the facts every element of a strong obligation upon the United States, and in favor of a vessel which, on the faith of the warning given, fully re

« PreviousContinue »