The Brilliante was a Mexican schooner, owned by Rafael Preciat and Julian Gual, residents of Campeche. She had on board a cargo of flour, part of which was owned by the owners of the vessel, and part by the Señores Ybana & Donde, who were also Mexican citizens. She had a regular clearance at Campeche for New Orleans, and had made the voyage between those ports. At New Orleans she took in her cargo of flour, part to be delivered at Sisal and part at Campeche, and took a clearance for both those places. On her homeward voyage she anchored in Biloxi Bay, intending to communicate with some vessel of the blockading fleet. and get a permit to go to sea, and while so at anchor she was taken by two boats sent off from the Massachusetts. She was carried into Key West, where the legal proceedings against her were prosecuted in the District Court of the United States for the District of Florida.

The minuter circumstances of each case, and the points of fact, as well as law, on which all the cases turned, in this Court and in the Court below, are set forth with such precision in the opinions of both Mr. Justice Grier and Mr. Justice Nelson, that more than the brief narrative above given does not seem to be necessary.

The case of the Amy Warwick was argued by Mr. Dana, of Massachusetts, for Libellants, and by Mr. Bangs, of Massachusetts, for Claimants. |

The Crenshaw, by Mr. Eames, of Washington City, for Libellants, and p. 639 by Messrs. Lord, Edwards, and Donohue, of New York, for Claimants.

The Hiawatha, by Mr. Evarts and Mr. Sedgwick, of New York, for Libellants, and by Mr. Edwards, of New York, for Claimants.

The Brilliante, by Mr. Eames, of Washington City, for Libellants, and by Mr. Carlisle, of Washington City, for Claimants.

One argument on each side is all that can be given. Those of Mr. Dana and Mr. Carlisle have been selected, not for any reason which implies that the Reporter has presumed to pronounce judgment upon their merits as compared with those of the other distinguished counsel, but because they came to his hands in a form which relieved him of the labor which the others would have cost to re-write and condense them.

Mr. Carlisle. The Brilliante is a regularly registered Mexican ship. Her principal owner, although a Mexican citizen by birth, had been naturalized in the United States. He was, before and at the time of the seizure, the United States Consul at the port of Campeche, a port on the coast of Mexico. The vessel was seized by the United States ship Massachusetts, in Biloxi Bay, north of Ship Island, between Pas Crétien and Pascagoula Bay, on the 23rd of June, 1861.

She had sailed from New Orleans, with a cargo of six hundred barrels of flour, put on board there about the 16th of that month, four hundred barrels for the house of the claimant, (American Consul at Campeche,) and the residue for the Mexican house of Ybana & Donde, at Sisal, also

a port on the coast of Mexicc; to which houses it was respectively consigned, they being owners of the same, in these proportions.

I. There was no actual breach. The question is of intent.

At the time of the seizure, the Brilliante was lying at anchor in Biloxi Bay, and had so lain at anchor twenty-four hours or more. 'She came p. 640 out from New Orleans and anchored in | Biloxi Bay, so as to be able to communicate with one of the blockading vessels, but did not see any vessel of war. On the next day, on which the vessel was seized, the sea was too rough to go on board the Massachusetts, which was lying in sight.'

p. 641

Mr. Preciat, the claimant,' wished to go on board one of the blockading vessels, to see if he could get a permit to go out to sea; otherwise he intended to have returned with the vessel to New Orleans.' (Deposition of the said Preciat, taken in preparatorio, Record, p. 11.) He was returning to Campeche,' to attend to the duties of his office (U. S. Consul,) and business generally.' On going to New Orleans, he had a letter from the Commander of the Brooklyn, one of the blockading squadron, to the Commander of the Niagara, another of them, forwarding him to Mobile, where his son was at school, and whom he desired to take home. The passengers and crew mutinied, and refused to go to Mobile. The mate, taking control, steered for New Orleans, where the vessel arrived, and the crew were discharged. These facts appear from the declarations in preparatorio. The libel and decree are exclusively founded on the alleged attempt to leave New Orleans. The claimant had a right to expect that his application to return, although sailing from New Orleans, would have been granted; or, if not granted, that he would have been allowed the option of going back to New Orleans; which he declares, on his examination, was his intention, if not permitted to return to Campeche. He swears that he had no intention to violate the blockade. There is nothing to contradict him, but everything corroborates his declaration. He was at anchor twenty-four hours, and a considerable portion of that time in sight of one of the blockading vessels, which the evidence shows he could not safely attempt to reach in consequence of the state of the weather. Before that period there is nothing to show that he might not have run the blockade safely; nor is there any reason suggested or supposable why he cast anchor, except that he had no intent to violate the blockade. His public character as United States Consul, and the facts before referred to, go in confirmation of this.

But chiefly, the terms of the President's proclamation instituting | this so-called blockade, are important to be considered upon this question of intent. The condition of things was unprecedented. From the nature and structure of our peculiar system of government, it could have had no precedent. The co-existence of Federal and State sovereignties, and the double allegiance of the people of the States, which no statesman or

lawyer has doubted till now, and which this Court has repeatedly recognized as lying at the foundation of some of its most important decisions; the delegation of special and limited powers to the Federal Government, with the express reservation of all other powers to the States and the people thereof' who created the Union and established the Constitution; the powers proposed to be granted and which were refused, and the general course of the debates on the constitution; all concurred in presenting this to the President as a case of the first impression. Assuming the power to close the ports of the seceded States, he evidently did so with doubt and hesitation. If the power be conceded to him, it cannot be denied that he might modify the strict law of blockade, and impose a qualified interruption of commerce. He might well have doubted whether, under the Constitution which he had sworn to support, a state of war could exist between a State or States, and the Federal Union; whether, when it ceased to be insurrection, and became the formal and deliberate act of State sovereignty, his executive powers extended to such an exigency. Certainly, the words of the Acts of Congress authorizing him to use the navy did not embrace such a case. It was not quite certain that it had assumed this imposing shape. The President, so late as his message of July, was confident that it had not. He believed that the State sovereignties had been usurped by discontented leaders and a factious and inconsiderable minority. With the information laid before him, he declared that these seceded States were full of people devoted to the Union. Well, therefore, might he hesitate to exercise, even if he supposed himself to possess, the power of declaring or 'recognizing ' a state of war. His powers in cases of insurrection or invasion were clear and undoubted. He had the army, the navy, and the militia of | the States p. 642 (the United States having no militia except in the federal territories) confided to his command, sub modo.

But insurrection is not war; and invasion is not war. The Constitution expressly distinguishes them, and treats them as wholly different subjects. But this belongs to a subsequent question in the argument. It is now referred to as bearing upon the construction of the proclamation, and consequently upon the question of intent to break a blockade. It is true that the proclamation calls it a blockade. But the message speaks of it as proceedings in the nature of a blockade.' And the proclamation itself, by its terms and provisions, substantially conforms to the latter description. It founds itself upon the existence of an insurrection.' It pronounces the disturbance to be by a combination of persons.' It proceeds upon the Acts of Congress provided for 'insurrections' by combinations of persons.' It declares that the executive measures are provisional and temporary only, until Congress shall have assembled and deliberated upon the said unlawful proceedings.' It requires the seceded

States to disperse, and return peaceably to their respective place of abode in twenty days.'

These combinations of persons,' and these unlawful proceedings,' are not at all recognized as presenting a case for belligerent rights and obligations. Naturally and prudently, the President did not assume to proclaim a strict blockade, with the extreme rights which obtain between belligerents, and with the corresponding rights of neutrals. He first called out the militia of the States, as such. He then used the army and the navy, under the Act of 1807. But he knew that this was not war. It was the suppression of insurrection. Consequently, in this use of the navy, he did not contemplate capture jure belli. Long after the period involved in this case, he maintained to all the civilized world, (see Mr. Seward's diplomatic correspondence, 1861,) that to attribute anything of belligerent right to these combinations of persons' and these unlawful proceedings,' was an outrage and an offence to the United States. In effect, his position was p. 643 that it was purely a municipal question; and, of course, there could be no blockade, in the international sense, and no capture jure belli.

Accordingly, the proclamation threatens not the regular proceedings of a prize Court, but such proceedings as may be deemed advisable.' And these proceedings are to follow upon a seizure to be made in the precise and only case where a vessel shall have attempted to enter or leave a port, and shall have been duly warned by the commander of one of the blockading vessels, who will endorse on her register the fact and date of such warning; and if the same vessel shall again attempt to enter or to leave,' &c., then these undescribed proceedings shall take place.

Under these circumstances, upon the question of intent, it is submitted that the case is with the claimant.

But II. The terms of the proclamation, assuming it to have intended a blockade, (jure belli,) excuse this vessel and cargo. The only authority necessary to be referred to here is the case of Md. Ins. Co. vs. Woods, (6 Cr., 49,) decided by this Court. It is to be argued from, a fortiori. The qualified blockade, by a belligerent, was recognized. Notoriety of blockade in fact, and perhaps actual knowledge, are admitted in that case. But because a special warning off was provided for in this notice of the blockade, restoration was decreed. This Court said there, that they could not perceive the reasons for this modification. Nevertheless, they held it imperative. Here, the reasons are apparent.

III. This seizure took place before Congress had convened to act in the premises. It was made during that period when the President, casting about among doubtful expedients, had used the navy, under the Acts of Congress, for suppressing insurrection and repelling invasion, and had used this force in the nature of a blockade.' It is denied that during this period there was WAR, or that the rights and obligations of war, either

under the municipal or international law, had arisen. Of consequence, blockade and the prize jurisdiction could not have existed. The question here is, how can the United States, under the Constitution, be involved in war? And, to admit for a moment a | modern question, who has the power p. 644 to accept, recognize, or admit a state of war, so that such a status will affect the people of the States, and foreign nations and their subjects, with the consequences of war, municipally and internationally? How are treaties suspended or abrogated? When are citizens residing in the several States placed in the condition of alien enemies, or of persons (nolens volens) identified with the Territory of a public enemy, in a state of public war, whether foreign or civil?

And, again, if this was not war, in any legal sense, who has the power of closing a port of entry of the United States against the trade of a foreign nation, to whom all ports of entry are open by treaty? This vessel and her cargo were wholly Mexican. The Port of New Orleans was a port of entry, open to her, for ingress and egress, and for all lawful commerce. How was it closed? It is clear that it was not closed by legislation. Nor was the Treaty with Mexico, which might have been suspended or abrogated by Act of Congress, (being only the 'supreme law of the land,' in the same sense with such acts,) in any degree disturbed by the National Legislature.

Now, this decree of condemnation could only be founded upon one of two alternatives: seizure under the municipal law, or capture under the international law, for violation, or attempt at violation, of a blockade.

It is plain that there was no municipal law by which it could be justified. The President cannot make, alter, or suspend the supreme law of the land; ' and this condemnation rests solely upon his authority.

IV. Was it capture? Blockade is a belligerent right. There must be war, before there can be blockade in the international sense, giving jurisdiction in prize. There may be an interruption of commerce, 'in the nature of a blockade.' But this is the exercise of the legislative power, and is purely municipal. The distinction is plainly shown in Rose vs. Himely, (4 Cr., 272). But this legislative power does not reside in the President. The Constitution, in its first section, lays the corner-stone of the edifice it was erecting, declaring that all legislative powers herein granted shall be vested in a Congress of the United States, | which shall p. 645 I consist,' &c. Therefore, it only remains to inquire, was there war?

But it has been objected that this question is not open here to this foreign claimant. This is a mistake. It is a principle of the law of nations that the sovereign power of the State has alone the authority to make war.' Wheat. on Captures, 40; Wildman, vol. 2, chap. 1. And Vattel (Lib. III, cap. I, sec. 4) says: 'The sovereign power has alone the authority to make war. But as the different rights which constitute this