authorized at the time by acts of Congress and treaties, may, by ex post
facto legislation, be changed into illicit trade and commerce with all its
penalties and forfeitures annexed and enforced. The instance of the
seizure of the Dutch ships in 1803 by Great Britain before the war, and
confiscation after the declaration of war, which is well known, is referred
to as an authority. But there the ships were seized by the war power, the
orders of the Government, the seizure being a partial exercise of that
power, and which was soon after exercised in full.

The precedent is one which has not received the approbation of
jurists, and is not to be followed. See W. B. Lawrence, 2d ed. Wheaton's
Elements of Int. Law, pt. 4, ch. I. sec. II, and note. But, admitting its
full weight, it affords no authority in the present case. Here the captures
were without any Constitutional authority, and void; and, on principle,
no subsequent ratification could make them valid.

Upon the whole, after the most careful consideration of this case which the pressure of other duties has admitted, I am compelled to the conclusion that no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861; that the President does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war ; that this power belongs exclusively to the Congress of the United States, and, consequently, that the President had no power to set on foot a p. 699 blockade under the law of nations, and | that the capture of the vessel and corgo in this case, and in all cases before us in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemies' property, are illegal and void, and that the decrees of condemnation should be reversed and the vessel and cargo restored.

Mr. Chief Justice TANEY, Mr. Justice CATRON and Mr. Justice CLIFFORD, concurred in the dissenting opinion of Mr. Justice Nelson.

United States v. Hallock.

(154 U.S. Reports, 537) 1864.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF FLORIDA.

No. 113. Submitted January 25, 1864.-Decided February 8, 1864.

A French vessel leaving France for New Orleans in May, 1861, with knowledge
of the blockade, and obtaining full knowledge of the same at the Bahamas,
continued its voyage and attempted to enter that port. Held, that it was
subject to capture, and that so much of the cargo as belonged to citizens of
New Orleans was subject to condemnation as enemy's property, and so much
as belonged to citizens of New York to condemnation for illicit trading with
the enemy.

N

THE case is stated in the opinion.

MR. JUSTICE GRIER delivered the opinion of the court.

The questions which affect the decisions of this case have all been before this court in the 'prize cases' decided at last term, and reported in 2 Black, 665.

On the 7th of July, 1861, the bark Pilgrim was attempting to enter the port of New Orleans, but ran aground in the night near Pass à l'Outre and was captured by the blockading vessels of the United States.

She had left Bordeaux, in France, about the 8th of May, after the news of the blockade of the southern ports had reached that place, and the American Consul would give no more papers to vessels bound for southern ports. In passing the Bahamas she had full information of the blockade. The master persisted, however, to continue his voyage and attempt to enter the port of New Orleans, till arrested by the blockading ships.

The cargo was consigned to owners in New Orleans. Two-thirds of the p. 538 vessel belonged to citizens of New Orleans, the other third to the master and another, citizens of New York and Connecticut. The cargo and twothirds of the vessel were liable to confiscation as enemy's property,' and the remainder for illicit trading with the enemy.

The decree of the court below is therefore reversed, and record remitted with directions to enter a decree in conformity to this opinion. Reversed.

Mr. Attorney General and Mr. Charles Eames for the appellants.

The Circassian.

(2 Wallace, 135) 1864.

1. A blockade may be made effectual by batteries on shore as well as by ships afloat; and, in case of an inland port, may be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels attempting to enter.

2. The occupation of a city by a blockading belligerent does not terminate a public blockade of it previously existing; the city itself being hostile, the opposing enemy in the neighborhood, and the occupation limited, recent, and subject to the vicissitudes of war. Still less does it terminate a blockade proclaimed and maintained not only against that city, but against the port and district commercially dependent upon it and blockaded by its blockade.

3. A public blockade, that is to say, a blockade regularly notified to neutral governments, and as such distinguished from a simple blockade or such as may be established by a naval officer acting on his own discretion, or under direction of his superiors, must, in the absence of clear proof of a discontinuance of it, E

1569-25 VOL. III

be presumed to continue until notification is given by the blockading government of such discontinuance.

4. A vessel sailing from a neutral port with intent to violate a blockade is liable to capture and condemnation as prize from the time of sailing; and the intent to violate the blockade is not disproved by evidence of a purpose to call at another neutral port, not reached at time of capture, with ulterior destination to the blockaded port.

5. Evidence of intent to violate blockade may be collected from bills of lading of cargo, from letters and papers found on board the captured vessel, from acts and words of the owners or hirers of the vessel and the shippers of the cargo and their agents, and from the spoliation of papers in apprehension of capture.

THE steamship Circassian, a merchant steamer under British colors, was captured with a valuable cargo by the United States steamer Somerset, for an attempted violation of the blockade established in pursuance of the proclamation of the President, dated 19th of April, 1861. Both vessel and cargo were condemned as lawful prize by the District Court for the Southern District of Florida; and the master, as representative of both, now brought the decree under the review of this court by appeal.

The capture was made on the 4th of May, 1862,-the date is important, -seven or eight miles off the northerly coast of Cuba, about half way p. 136 between Matanzas and Havana, and | about thirty miles from Havana ; the ship at the time ostensibly proceeding to Havana, then distant but two or three hours' sail. The main voyage was begun at Bordeaux. There she took a cargo,-no part of it contraband,-and was making her way to Havana when captured. Pearson & Co., of Hull, British subjects, were her ostensible owners. The cargo was shipped by various English and French subjects, and consigned to order. The bills of lading spoke of the ship as 'loading for the port of Havana for orders;' and the promise of the bills was to deliver the packages to the said port of Havana, there to receive orders for the final destination of my said steamer, and to deliver the same to Messrs. Brulatour & Co., or their order, he or they paying me freight in accordance with the terms of my charterparty, which is to be considered the supreme law as regards the voyage of said steamer, the orders to be received for her and her final destination.' The master swore positively that he did not know of any destination after Havana; nor did the depositions directly show an intention to break the blockade.

The evidence of this intent rested chiefly on papers found on the vessel when captured, and in the inference arising from the spoliation of others. Thus while on her way from Cardiffe to Bordeaux, the ship had been chartered by Pearson & Co. to one J. Soubry, of Paris, agent for merchants loading her; the charter-party containing a stipulation that she should proceed to Havre or Bordeaux as ordered, and then to

load from the factories of the said merchants a full cargo, and therewith proceed to Havana, Nassau, or Bermuda, as ordered on sailing, and thence to proceed to a port of America, and to run the blockade, IF SO ORDERED by the freighters.'

With this charter-party was the following:

Memorandum of affreightment.

Taken on freight of Mr. Bouvet, Jr., by order and for account of Mr. J. Soubry, on board of the British steamer Circassian, &c., bound to Nassau, Bermuda, or Havana, the quantity, &c. Mr. J. Soubry engages to execute the charter-party | of affreightment; that is to say, p. 137 that the merchandise shall not be disembarked but at the port of New Orleans, and to this effect he engages to force the blockade, for account and with authority of J. Soubry.

LAIBERT, Neveu.

And on this was indorsed, by one P. Debordes, who was the ship's husband or agent at Bordeaux, these words:

BORDEAUX, 15 February, 1862.

P. Desbordes.

Sent similar memorandum to the parties concerned.

So, too, Bouvet wrote his correspondents in New Orleans, as follows, the letter being found on the captured vessel :

MESSRS. BRULATOUR & Co., New Orleans:

BORDEAUX, 1st April, 1862.

Confirming my letter of the 29th ult., copy of which is annexed, I inclose herewith bills lading for 659 packages merchandise, and 92 small casks U. P.; also, copy of charter-party, and private memorandum, per Circassian, in order that you may have no difficulty in settling the freight by that vessel.

The Circassian has engaged to force the blockade, but should she fail in doing so, you will act in this matter as you may deem best. I intrust this matter entirely to you.

Accept, gentlemen, my affectionate salutations.

E. BOUVET.

In addition to these papers, various private letters, mostly, of course, in French, from persons in Bordeaux to their correspondents at Havana and New Orleans, were found on the vessel. One of these spoke of the steamer as 'loading entirely with our products for New Orleans, where,

it is said, she has engaged to introduce them;' another describes her as arrived at Bordeaux, a month since, to take on board a fine cargo,. with which to force the blockade;' a third, as a very fast sailer, loaded in our port for New Orleans, where she will proceed, after having touched p. 138 at Havana;' a fourth, | as 'about to try to enter your Mississippi, touching, previously, at Havana.' So others, with similar expressions. A British house of Belfast, sending a letter by her to Havana, ' takes it for granted that she will proceed with her freight to New Orleans.' A French one of Bordeaux had a different view as to her getting there. This one writes:

'We are going to have a British steamer here of a thousand tons cargo for your port. We shall ship nothing by her, because the affair has been badly managed. Instead of keeping it a secret, it has been announced in Paris, London, and Bordeaux. Of course, the American Government is well informed as to all its details; and if the steamer ever enters New Orleans, it will be because the commanding officer of the blockading squadron shuts his eyes. If he does not, she must be captured.'

In addition to this evidence, it appeared that a package of letters, which were sent on board at Panillac, a small place at the mouth of the Gironde, after the Circassian had cleared from Bordeaux, and was setting off to sea, were burned after the vessel hove to, and before the officers of the Somerset came on board, at the time of capture.

So far with regard to evidence of intent to break the blockade. This case, however, presented a special feature.

The capture, as already noted, took place on the 4th of May, 1862; at which date the city of New Orleans, for whose port the libellants alleged that the vessel had been really about to run, was in possession, more or less defined and firm, of the United States. The history was thus:

A fleet of the United States, under Commodore Farragut, having captured Forts Jackson and St. Philip on the 23d of April,1 reached New Orleans on the 25th. On the 26th, the commodore demanded of the mayor the surrender of the city. The reply of the mayor was 'that the city was under martial law, and that he would consult General Lovell.' | p. 139 The rebel Lovell declared, in turn, that 'he would surrender nothing; but, at the same time, that he would retire, and leave the mayor unembarrassed. On the 26th, the flag-officer sent a letter, No. 2, to the mayor, in which he says:

I came here to reduce New Orleans to obedience to the laws, and to vindicate the offended majesty of the Government. The rights of

These forts were situated on opposite banks of the Mississippi River, about one-third of the way up to New Orleans from its mouths, and commanded the river approaches to the city. See chart, infra.