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During the blockade of Port Royal in 1861 a Spanish steam vessel, with the permission of the commander of the blockading squadron, put into that port in distress, and was there seized as prize of war, and used by the Government till June, 1862, when she was brought to New York and condemned. In June of the following year, however, the Government in the mean time using the vessel, a decree of restitution was ordered; but the vessel never was restored. Subsequently the case was referred to a commissioner to ascertain the damages for the seizure and detention, and final judgment was rendered by the court on his award. This judgment was reversed on account of the impropriety of one of the items included in the decree of the district court. But it was held, that clearly the vessel was not lawful prize of war or subject to capture, and that her owners were entitled to fair indemnity, though it might well be doubted whether the case was not more properly a subject of diplomatic adjustment than of determination by the courts. The Nuestra Señora de Regla, 17 Wall., 29.

The capture of a vessel for violation of blockade may be lawful, if made by a national vessel, though the latter be not part of the blockading force.

The Memphis, Blatch. Prize Cases, 260.

Where an American vessel had entered and cleared from a port under blockade, and, while returning to New Orleans, was captured by a vessel belonging to the French blockading squadron, from which the captain of the former rescued her and brought her to her destination, the port of New Orleans; and demand, subsequently, being made of the Executive to deliver up the vessel and cargo, both on account of the said breach of blockade and rescue, it was advised that the captors had no right of property in said vessel and cargo, and that the liabil ity of the vessel to condemnation, if it ever existed, had ceased by the termination of her voyage at the port of her destination.

It was also advised that the case called for a judicial decision settling certain questions of fact concerning the legality of the blockade, capture, etc., before the Executive could act, and that, as independently of this, there was no constitutional right vested in the Executive to deliver up the property of an American citizen, claimed by him as his own, and in his actual possession, and not condemned, nor legally adjudged to belong to another.

3 Op., 377, Grundy, 1838.

Preparations towards entering a blockaded port, such as hovering around it, with other acts from which an intention to enter may be inferred, are grounds for seizure, unless the blockade is exclusively for ingress or egress.

The Coosa, 1 Newb. Adm., 393; The Hiawatha, Blatch. Pr. Ca., 1; 2 Blatch., 635; The Empress, Blatch. Pr. Ca., 175; Halleck's Int. Law, ch. 23, § 23.

But a mere abandoned purpose, there having been no overt act to execute it, is not ground for seizure.

1 Kent Com., 147; The John Gilpin, Blatch. Pr. Ca., 291.

The decision in the case of the Springbok (Blatch. Pr. Ca., 380, 434; 5 Wall., 1), noted in its proper place above, has been the subject of great discussion. The Springbok left London December 9, 1862, for Nassau, and when one hundred and fifty miles from the latter port was captured by the Federal cruiser Sonoma, the ground being that she intended to run the blockade. The vessel and her cargo were condemned by the district court of New York. This decree was reversed by the Supreme Court of the United States in December, 1866, so far as concerns the ship, but affirmed as to the cargo. There was nothing in the papers taken from the Springbok to show that the intention was to run the blockade. The condemnation of the cargo of the Springbok was put by the Chief Justice on the alternative of either contraband or blockade-running. "We do not now refer," he said (3 Wall., 26), "to the character of the cargo for the purpose of determining whether it was liable to condemnation as contraband, but for the purpose of ascertaining its real destination; for, we repeat, contraband or not, it could not be condemned if really destined for Nassau and not beyond; and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports were under blockade.” Upon the whole case we cannot doubt that the cargo was originally shipped with intent to violate the blockade; that the owners of the cargo intended that it should be transshipped at Nassau into some vessel more likely to succeed in running safely to a blockaded port than the Springbok; that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage; and that the liability to condemnation, if captured during any part of that voyage, attached to the cargo from the time of sailing."

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The British foreign office was advised on the 13th of March, 1863, by Sir William Atherton, Sir Roundell Palmer, and Dr. Phillimore (the then law officers of the Crown) that "there was nothing to justify the seizure of the bark Springbok and her cargo, and that Her Majesty's Government would be justified in demanding the immediate restitution of the ship and cargo, without submitting to any adjudication by an American prize court."

But while this was the law so given, the British commissioner, when the case came before the Mixed Claims Commission, under the Treaty of Washington, in May, 1877, united with the other commissioners in finding against the claimant for the cargo. The following is part of an opinion on the same case by Mr. Mellish, afterwards lord justice, and Sir W. Harcourt:

"The first observation we shall make is:

"That in a case where the ship itself is really and bona fide destined for a neutral port (and that is here admitted to be the case), the onus of the proof lies on the captors, and they ought to give clear and conclusive evidence to justify the inference that the cargo itself has a different destination.

"The Supreme Court, in their judgment, very justly state that the real question on which the condemnation must turn is the original destination of the cargo. But when we come to examine the grounds upon which the court founds a conclusion adverse to the cargo, we find that these grounds are many of them inaccurate in fact and erroneous in principle.

"The first ground taken by the court as justifying the conclusion that Nassau was not the real destination of the cargo is derived from the form of the bills of lading and the manifest. The court argue that because the bills of lading did not disclose the contents of the packages, and because no consignee was named, but the cargo was delivered to order and assigns, these circumstances showed an attempt at 'fraudulent concealment' of the destination of the cargo. We have before us a statement of some of the principal sworn brokers of London, which accords with our own experience, that the bills of lading are in the usual and regular form of consignments to an agent

for sale in such a port as Nassau. It is probable that the court may have been misled by what we believe to be the fact, viz, that in shipments to the American ports greater particularity of specification is required in order to comply with the requirements of the American custom-house. But as these documents are perfectly regular, and in the form usually adopted in the course of trade to an English port, there is nothing in them which could raise an inference of 'fraudulent concealment.'

"The next point taken by the court is, that a sale at Nassau could not have been intended, because the bills of lading made the cargo deliverable to order. It is quite true that such a form of the bills of lading was, as the court says, 'a negation that a sale had been made to any one at Nassau.' But that was not the case set up by the claimants. Their case was, that the cargo was sent to an agent at Nassau for sale there, and for such an object the form of the bills of lading was perfectly regular and appropriate.

"On these two main points, therefore, the judgment seems to us to have proceeded on a misapprehension of the facts.

"The next ground on which the court rely is the character of the cargo itself. Not, as the court justly say, that the cargo, if really destined for Nassau, could be condemned as contraband, but rather that the fact of its being contraband was a good ground of inference that it was not destined for Nassan. This point, which is much insisted on by the court, appears to us to be founded on an entire misapprehension. The fact that the goods, or some of them, were contraband, so far from furnishing an argument that they were not destined for sale at Nassau, is, on the contrary, as far as it goes, a proof the other way. Nassau was a place which had a very insignificant home trade of its own, but which had developed a very great trade as an entrepôt of contraband goods, which adventurers in blockade-running purchased there for the purposes of their business. The very things which a person sending goods for the Nassau market would be the most likely to consign there would be goods fitted for blockade-running. But such a trade on the part of the person who sent them to Nassau for sale there would be a perfectly lawful trade. If A sent a cargo of muskets to Nassau, intending to sell them there, they could not be condemned because he thought B was likely so buy them there in order to run them through the blockade. The fact, therefore, of the nature of the cargo does not seem to us to justify the material inference which the court draw from it, viz, that the cargo could not have been intended for sale at Nassau.

"The last point taken by the court in order to prove the material issue, viz, whether a bona fide sale was or was not intended at Nassau, is equally founded on a remarkable misapprehension, of fact. The court say: 'If these circumstances were insufficient grounds for a satisfactory conclusion, another might be found in the presence of the Gertrude in the harbor of Nassau, with undisguised intent to run the blockade about the time when the arrival of the Springbok was expected. It seems extremely probable that she had been sent to Nassau to await the arrival of the Springbok and to convey her cargo to a belligerent and blockaded port.' Now, it is a remarkable fact in the case that this supposed circumstance, by which the court seek to eke out what appears to have been felt a somewhat weak chain of inference, is itself a complete mistake. The Gertrude was not at Nassau awaiting the arrival of the Springbok. On the contrary, we are informed that it appears by Lloyd's List that at the time when the Springbok was captured close to Nassau the Gertrude was lying at Queenstown, in Ireland. The inference of intended transshipment drawn from the assumed presence of the Gertrude at Nassau, therefore, entirely falls to the ground.

"It seems to us that these arguments relied on by the court fail to establish the point on which alone the judgment of condemnation could be founded, and that the facts of the case are at least equally consistent with the hypothesis of an intended sale at Nassau, which, considering the undoubted neutral destination of the vessel, we think it lay with the captors to rebut.

"Looking at the whole circumstances, we have no doubt that, if the facts of the case had been clearly set forth and distinctly apprehended, as they appear upon the papers before us, the cargo ought not to have been, and would not have been, condemned, and that, consequently, there has been in this case a miscarriage of justice."

The following criticisms by European publicists may be studied in this connection: "In later times Great Britain has practically abandoned her theory of paper blockades. In an official proclamation, published at the commencement of the Crimean war (see London Gazette of the 20th March, 1854) we read,' And she (Her Majesty the Queen) must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbors, or coasts.' The declaration of the congress of Paris of 1856, confirms the principle in the following words: Les blocus pour être obligatoires doivent être effectifs, c'est-à-dire, maintenus par une force suffisante pour interdire réellement l'accès du littoral de l'ennemi.' (Blockades in order to be binding must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.)

"Accordingly Bluntschli observes, in his work on Modern International Law § 829): 'A port is understood to be actually blockaded when ingress to and egress from it are prevented by vessels-of-war stationed off it, or by the land batteries of the blockading power. No specific number of vessels is required, nor a specific number of cannon in the land batteries; but the warlike force must be sufficiently close and strong to prevent merchant vessels from entering or leaving it, not on individual occasions, nor yet necessarily on every occasion, but as a general rule.'

"In section 833, Bluntschli propounds this other axiom of international law, 'A blockade lasts only as long as it is effective.' If the blockading squadron is forced to withdraw before a superior force of the enemy, the blockade must be considered as raised. It follows, then, that a neutral vessel on the high seas, bound to a blockaded port, cannot be seized for breach of blockade, even though the master has knowledge of the blockade. To the eye of international law, a real breach of blockade is committed only when a neutral vessel attempts by force or stratagem to enter or leave the blockaded port. Bluntschli further contends (§ 835) that, in every case, the vessel can be lawfully captured only while in the act of attempting to violate the blockade.

"It must be conceded-it is, in fact, admitted-that the blockade of the ports of the rebel States during the war of secession was, on the whole, effective. The doctrine, however, upon which the Supreme Court of the United States has condemned the entire cargo of the Springbok, a neutral vessel, on her way to a neutral port, is quite monstrous, more especially as the court acquits that vessel of any intention to violate the blockade. If such a doctrine were carried to its logical conclusions, and were enforced by a belligerent great maritime power as rigorously as it has been by the United States, all neutral property on the high seas might be treated as lawful prize of war. "The official report of Mr. Robert S. Hale, the agent and counsel of the United States Government, before the Mixed Commission, contains, at page 367 of the appendix, a copy of a 'Confidential memorandum for the use of the commissioners on the part of the United States in the American-British Joint High Commission, Washington, 1871, which was inclosed in a communication addressed to each of the American commissioners by the honorable Mr. Fish, the American Secretary of State, on February 22, 1871.' In these secret instructions Mr. Fish informed the American commissioners that one hundred and sixty-seven cases have been condemned by the prize courts of the United States. With the exception of one case, that of the Springbok, the Department of State is not aware of a disposition on the part of the British Government to dissent from any final adjudication of the Supreme Court of the United States in a prize case.

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Gessner's Rev. of Springbok case. To same effect, see Gessner's Int. Law, 231.

"The Executive Government of the United States has always avowed a readiness on its part to redress any grievance resulting to neutral commerce from the decision of its prize courts, if the circumstances appear to call for it. The case of the Adela may be cited, in which the Hon. W. H. Seward, the United States Secretary of State, thus expressed himself in a note addressed to the Hon. W. Stuart, the British chargé d'affaires at Washington, on 27th September, 1863. 'If the principles of maritime law shall finally be decided against the claimants, due reparation therefor shall be made. The Government has no disposition to claim any unlawful belligerent rights, and will cheerfully grant to neutrals, who may be injured by the operations of the United States forces the same redress which it would expect if the position of the parties were reversed.' These are noble words, worthy of the representative of a great nation which can afford to be both generous and just.

"The insurrection of seven of the Southern States of the Federal Union of North American States having acquired the proportions of a civil war, the Government of the Union gave notice to the European powers that they had established a blockade of the entire Atlantic coast of the United States from the bay of Chesapeake to the mouth of the Rio Grande, an extent of about three thousand miles. From a correspondence respecting instructions given to naval officers of the United States in regard to neutral vessels and mails laid before the British Parliament (Parliamentary Papers, North America (1863), No. 5), it appears that the United States flag officer at Key West informed the British commander, Hewett, that the United States cruisers had received orders to seize any British vessels whose names were forwarded to them from the Government of Washington, and that the fact of such vessels being bound from one British port to another would not prevent the United States officers from carrying out those orders. A representation was accordingly made by Mr. Stuart, the British chargé d'affaires at Washington, to Mr. Seward, the Secretary of State, in consequence of the capture of the British steamer Adela, bound from Liverpool and Bermuda to Nassau, for which latter port she was carrying a British mail, and the Secretary of State on the following day communicated to Mr. Stuart a new set of instructions, which he was addressing in the name of the President to the Secretary of the Navy, 'laying down rules for the future guidance of United States naval officers, which essentially modified the instructions, under which they had been latterly supposed to be authorized to seize certain ships, of which a list had been furnished, when or where those ships were met with, irrespective of the observance of international law.' Mr. Seward subsequently communicated to Mr. Stuart a copy of the instructions, which the President had directed him to transmit to the Secretary of the Navy, and which copy was in fact forwarded by Mr. Stuart to Her Britannic Majesty's principal secretary of state for foreign affairs.

"Having premised that it was the duty of the naval officers to be vigilant in searching and seizing vessels of whatever nation which were carrying contraband of war to insurgents of the United States, but that it was equally important that the provisions of the maritime law in all cases be observed, the instructions proceeded to direct, in the third article, that when the visit was made the vessel was then not to be seized without a search carefully made, so far as to render it reasonable to believe that she was engaged in carrying contraband of war to the insurgents and to their ports, or otherwise violating the blockade, and that if it should appear that she was actually passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents, she could not be lawfully seized. The date of these instructions was 8th August, 1862. They were cautiously worded, and if they had been carefully observed by the cruisers of the United States, their execution of the duty confided to them could have given no cause of offense to neutral nations.

"Since I took up my pen to review the progress made during the last thirty years in rendering war less onerous to neutrals, a debate has taken place in the Upper Chambers of the States General of the Netherlands on the subject of the condemna

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