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ed from the various state courts regarding this question. Some of them we should hesitate to follow. The cases we have commented upon we think give no support for the claim that the case now before us forms any exception to the rule which, as we believe, clearly embraces it. We must take the whole agreement, and remember that the action is between the original parties to it; that there is no collateral contract, and no new consideration, and no liability of a third party. The partnership is but a portion of the whole agreement.

We must therefore come back to the proposition that to permit a recovery in this case is, in substance, to enforce an illegal contract, and one which is illegal because it is against public policy to permit it to stand. The court refuses to enforce such a contract, and it permits defendant to set up its illegality, not out of any regard for the defendant who sets it up, but only on account of the public interest. It has been often stated in similar cases that the defense is a very dishonest one, and it lies ill in the mouth of the defendant to allege it, and it is only allowed for public considerations, and in order the better to secure the public against dishonest transactions. To refuse to grant either party to an illegal*contract judicial aid for the enforcement of his alleged rights under it tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that when they enter into contracts of this nature they place themselves outside the protection of the law, so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law.

Being of the opinion that the contract proved in this case was illegal, in the sense that it was fraudulent, and entered into for improper purposes, the law will leave the parties as it finds them.

The judgment of the circuit court of appeals was right, and must be affirmed.

(174 U. S. 510)

THE OLINDE RODRIGUES. (May 15, 1899.)

No. 704.

BLOCKADE-SUFFICIENCY OF FORCE-LEGALITY OF CAPTURE-INTENT TO BREAK BLOCKADE-EVIDENCE-SPOLIATION OF PAPERSPROBABLE CAUSE-ADMIRALTY PRACTICE.

1. There is no rule of law determining that the presence of any particular force is essential to render a blockade legally effective. The test is whether it is practically effective, and this is a question, though a mixed one, more of fact than of law. It is sufficient if the force is such as to render ingress or egress in fact dangerous; and a single modern cruiser whose guns command a circle of 13 miles in diameter when stationary sufficient to maintain a legally effective blockade of a port having a single entrance, like that of San Juan, Porto Rico.

2. When naval vessels of the enemy are lying within a blockaded port, the fact that the commander of the blockading force suggests to his

government that additional vessels are needed in order to make the blockade "positively effective" is not sufficient to show that the blockade then existing is not legally effective. so far as concerns the ingress and egress of commercial vessels.

3. When, after the captors have put in their proofs, the claimant, without adducing anything further, moves for the discharge and restitution of the vessel, he cannot at the same time reserve the right to adduce further proofs in the event that his motion shall be denied.

4. The mere fact that the master of a vessel knows that there is profitable traffic awaiting him within a blockaded port lying upon the route of his vessel is not of itself sufficient ground for condemnation, though the vessel is taken while passing near to such port. Mere presence of a motive is not sufficient to supply the lack of evidence of a guilty intent.

5. Spoliation or concealment of papers, though it is theoretically a serious offense, and authorizes the presumption of an intention to suppress incriminating evidence, is not in itself ground for condemnation, but is evidence, more or less convincing, of the existence of such ground; but the presumption arising therefrom is a rebuttable one, and the transaction is open to explanation.

6. Under Rev. St. § 4639, if it appears that probable cause for capture existed, all costs and expenses may be charged against the vessel, though restitution of the vessel herself is awarded.

7. Probable cause for a capture exists when there are circumstances to warrant suspicion. though it may turn out that the facts are not sufficient to warrant condemnation.

S. A steamship belonging to citizens of a friendly power held not guilty of an attempt to break the blockade, though she was seized while passing within a few miles of a blockaded port, which was one of her ports of call on her regular voyages, and though certain bills of health were not delivered up to the captors, with her other papers, and were afterwards destroyed; there being evidence showing a reasonable explanation of these facts.

Mr. Justice McKenna dissenting.

Appeal from the District Court of the United States for the District of South Carolina.

This was a libel filed by the United States against the steamship Olinde Rodrigues and cargo in the district court for South Carolina, in a prize cause, for violation of the blockade of San Juan, Porto Rico. The steamship was owned and claimed by La Campagnie Générale Transatlantique, a French corporation.

The Olinde Rodrigues left Havre, June 16, 1898, upon a regular voyage on a West Indian itinerary prescribed by the terms of her postal subvention from the French government. Her regular course, after touching at Paulliac, France, was St. Thomas, San Juan, Port au Platte or Puerto Plata, Cape Haytien, St. Marque, Port au Prince, Gonaives, and to return by the same ports, the voyage terminating at Havre. The proclamation of the president declaring San Juan in a state of blockade was issued June 27, 1898. The Olinde Rodrigues left Paulliac June 19th, and arrived at St. Thomas July 3, 1898, and on July 4, in the morning, went into San Juan, Porto Rico. She was seen by the United States auxiliary cruiser Yosemite, then blockading the port of San Juan.

On the 5th of July, 1898, the Olinde Rodrigues came out of the port of San Juan, was

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signaled by the Yosemite, and, on communicating with the latter, asserted that she had no knowledge of the blockade of San Juan. Thereupon a boarding officer of the Yosemite entered in the log of the Olinde Rodrigues an official warning of the blockade, and she went on her way to Puerto Plata and other ports of San Domingo and Haiti. She left Puerto Plata, on her return from these ports, July 16, 1898, and on the morning of July 17th was captured by the United States armored cruiser New Orleans, then blockading the port of San Juan, as attempting to enter that port. A prize crew was put on board, and the vessel was taken to Charleston, S. C., where she was libeled, as before stated, July 22, 1898. Depositions of officers, crew, and persons on board the steamship were taken by the prize commissioners in preparatorio in answer to certain standing interrogatories, and the papers and documents found on board were put in evidence. Depositions of officers and men from the cruiser New Orleans were also taken de bene esse, but were not considered on the preliminary hearing except on a motion by the district attorney for leave to take further proofs.

The cause having been heard on the evidence in preparatorio, the district judge ruled, August 13th, for reasons given, that the Olinde Rodrigues could not, under the evidence as it stood, be condemned for her entry into the blockaded port of San Juan on July 4th and her departure therefrom July 5, 1898, nor for attempting to enter the same port on July 17th; but that the depositions de bene esse justified an order allowing further proofs, and stated also that an order might be entered "discharging the vessel upon stipulation for her value, should the claimant so elect." 89 Fed. 105. An order was accordingly entered that the captors have 90 days to supply further proof "as to the entry of the Olinde Rodrigues into the port of San Juan, Porto Rico, on July 4, 1898, and as to the courses and movements of said vessel on July 17, 1898," and "that the claimants may thereafter have such time to offer testimony in reply as may seem proper to the court."

The cargo was released without bond, and on September 16th the court entered an or der releasing the vessel on "claimants giving bond by the Compagnie Générale Transatlantique, its owners, without sureties, in the sum of $125,000, conditioned for the payment of $125,000, apon the order of the court, in the event that the vessel should be condemned." The bond was not given, and the vessel remained in custody.

Evidence was taken on behalf of the United States, and the cause came on for hear ing on a motion by the claimants for the discharge and restitution of the steamship on the grounds (1) that the blockade of San Juan at the time of the capture of the Olinde Rodrigues was not an effective blockade; (2) that the Olinde Rodrigues was not violating the blockade when seized.

The district court rendered an opinion December 13, 1898, holding that the blockade of San Juan was not an effective blockade, and entered a decree ordering the restitution of the ship to the claimants. 91 Fed. 274. From this decree the United States appealed to this court, and assigned errors to the effect (1) that the court erred in holding that there was no effective blockade of the port of San Juan on July 17, 1898; (2) that the court erred in not finding that the Olinde Rodrigues was captured while she was violating the blockade of San Juan, July 17, 1898, and in not decreeing her condemnation as lawful prize.

Atty. Gen. Griggs, Asst. Atty. Gen. Hoyt, and J. P. Kennedy Bryan, for appellant. E. K. Jones, for appellee

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

We are unable to concur with the learned district judge in the conclusion that the blockade of the port of San Juan at the time this steamship was captured was not an effective blockade.

To be binding, the blockade must be known, and the blockading force must be present; but is there any rule of law determining that the presence of a particular force is essential in order to render a blockade effective? We do not think so, but, on the contrary, that the test is whether the blockade is practically ef fective, and that that is a question, though a mixed one, more of fact than of law.

The fourth maxim of the Declaration of Paris (April 16, 1856) was: "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." Manifestly this broad definition was} not intended to be literally applied. The ob ject was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of what might be sufficient force was necessarily left to be determined according to the particular circumst nces.

This was put by Lord Russell, in his note to Mr. Mason of February 10, 1861, thus: "The Declaration of Paris was in truth directed against what were once termed 'paper blockades'; that is, blockades not sustained by any actual force, or sustained by a notoriously inadequate naval force, such as an occasional appearance of a man of war in the offing or the like. * * * The interpretation, therefore, placed by her majesty's government on the declaration was that a blockade, in order to be respected by neutrals, must be practically effective. It is proper to add that the same view of the meaning and effect of the articles of the Declaration of Paris on the subject of blockades, which is above explained, was taken by the representative of

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the United States at the court of St. James (Mr. Dallas) during the communications which passed between the two governments some years before the present war, with a view to the accession of the United States to that declaration." Hall, Int. Law, § 260, p. 730, note. The quotations from the parliamentary debates of May, 1861, given by Mr. Dana in note 233 to the eighth edition of Wheaton on International Law, afford interesting illustrations of what was considered the measure of effectiveness, and an extract is also there given from a note of the department of foreign affairs of France of September, 1861, in which that is defined: "Forces sufficient to prevent the ports being approached without exposure to a certain danger."

In The Mercurius, 1 C. Rob. Adm. 80, 84, Sir William Scott stated: "It is said this passage to the Zuyder Zee was not in a state of blockade; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war understood blockade in this sense; and Russia, who was the principal party in that confederacy, described a place to be in a state of blockade when it is dangerous to attempt to enter into it."

And in The Frederick Molke, 1 C. Rob. Adm. 86, the same great jurist said: "For that a legal blockade did exist results necessarily from these facts, as nothing further is necessary to constitute blockade than that there should be a force stationed to prevent communication, and a due notice or prohibition given to the party."

Such is the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the secretary of the navy, June 20, 1898, General Order No. 492: "A blockade, to be effective and binding, must be maintained by a force sufficient to render ingress to or egress from the port dangerous."

Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a blockade. It is enough if the danger is real and apparent.

In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing on the question whether the blockade imposed on the port of Riga was an effective blockade, said: "What, then, is an efficient blockade, and how has it been defined, if, indeed, the term 'definition' can be applied to such a subject? The one definition mentioned is that egress or entrance shall be attended with evident danger; another, that of Chancellor Kent (1 Kent, Comm. 146), is that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain. The maintenance of a blockade must always be a question of degree, of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to my

notions of the law of nations, than any relax. ation of the rule that a blockade must be efficiently maintained. But it is perfectly ob vious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone."

"It is impossible," says Mr. Hall (section 260), "to fix with any accuracy the amount of danger in entry which is necessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be nonexistent, or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition."

In The Hoffnung, 6 C. Rob. Adm. 112, 117, Sir William Scott said: "When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But, when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions in favor of the ordinary freedom of commercial speculations. In such a case, the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed." And undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it may be of such a character, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect which "necessarily led neutral vessels to believe these ports might be entered without incurring any risk." The Nancy, 1 Act. 57, 59.

But it cannot be that a vessel actually captured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected.

As we hold that an effective blockade is a blockade so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser, though sufficient in fact, is not sufficient as matter of law.

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Even as long ago as 1809, in The Nancy, 1 1 Act. 63, where the station of the vessel was sometimes off the port of Trinity, and, at others, off another port more than seven miles distant, it was ruled that, "under particular circumstances, a single vessel may be adequate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighboring port," although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be performed.

The ruling of Dr. Lushington in The Franciska, above cited, was to that effect, and the text-books refer to other instances.

The learned district judge, in his opinion, refers to the treaty between France and Denmark of 1742, which provided that the entrance to a blockaded port should be closed by at least two vessels or a battery on shore; to the treaty of 1760 between Holland and the Two Sicilies, prescribing that at least six ships of war should be ranged at a distance slightly greater than gunshot from the entrance; and to the treaty between Prussia and Denmark of 1818, which stipulated that two vessels should be stationed before every blockaded port. But we do not think these particular agreements of special importance here, and, indeed, Ortolan, by whom they are cited, says that such stipulations cannot create a positive rule in all cases even between the parties, "since the number of vessels necessary to a complete investment depends evidently on the nature of the place blockaded." 2 Ort. Rom. Law (4th Ed.) 330, note 2.

Blockades are maritime blockades, or blockades by sea and land, and they may be either military or commercial, or may partake of the nature of both. The question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is not decisive of the effectiveness of a blockade; but the case made on this record does not rest on that ground.

We are of opinion that, if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the port, that is sufficient, since thereby the blockade is made practically effective.

What, then, were the facts as to the effectiveness of the blockade in the case before

us?

In the proclamation of June 27, 1898, occurs this paragraph: "The United States of America has instituted and will maintain an effective blockade of all the ports on the south coast of Cuba, from Cape Frances to Cape Cruz, inclusive, and also of the port of San Juan, in the island of Porto Rico." Proclamation No. 11 (30 Stat. 34). The blockade, thus announced was not of the coast of Porto Rico, but of the port of San Juan, a town of• less than 25,000 inhabitants, on the northern. coast of Porto Rico, with a single entrance.. From June 27 to July 14, 1898, the Yosemite, a merchant ship converted into an auxiliary cruiser, blockaded the port. Her maximum speed was 151⁄2 knots, and her armament ten 5-inch rapid-firing guns, six 6-pounders, two 1-pounders, with greatest range of 3 miles. While the Yosemite was blockading the port she ran the armed transport Antonio Lopez aground six miles from San Juan, gave a number of neutral vessels official notice of the blockade, warned off many from the port, and on the 5th of July, 1898, wrote into the log of the Olinde Rodrigues, off San Juan, the official warning of the blockade of San Juan. On July 14th and thereafter the port was blockaded by the armored cruiser New Or leans, whose maximum speed was 22 knots, and her armament six 6-inch breech-loading rifles, four 4.7-inch breech-loading rifles, ten 6-pounders, four 1.5-inch guns (corresponding to 3-pounders), four 3-pounders in the tops, four 37-millimeter automatic guns (corresponding to 1-pounders). The range of her guns was 51⁄2 sea miles, or 64 statute miles. If stationary, she could command a circle of 13 miles in diameter, if moving at maximum speed she could cover in five minutes any point on a circle of 17 miles diameter, and in ten minutes any point on a circle of 19miles diameter. Her electric search lights could sweep the sea by night for 10 miles distance. Her motive power made her independent of winds and currents. In these respects and in her armament and increased range of guns she so far surpassed in effectiveness the old-time warships that it would be inadmissible to hold that, even if a century ago more than one ship was believed to be required for an effective blockade,

Nor do we regard Sir William Scott's judgment in The Arthur (1814) 1 Dod. 423, 425, as of weight in favor of claimants. In effect, the ruling sustained the validity of the maintenance of blockade by a single ship, and the case was thus stated: "This is a claim made by one of his majesty's ships to share as joint captor in a prize taken in the river Ems by another ship belonging to his majesty for a breach of the blockade imposed by the order in council of the 26th of April, 1809. This order was, among others, issued in the way of retaliation for the measures which had been previously adopted by the French government against the commerce of this country. The blockade imposed by it is applicable to a very great extent of coast, and was never intended to be maintained according to the usual and regular mode of enforcing blockades, by stationing a number of ships, and forming as it were an arc of circumvallation around the mouth of the prohibited port. There, if the arc fails in any one part, the blockade itself fails altogether; but this species of blockade, which has arisen out of the violent and unjust conduct of the enemy, was maintained by a ship stationed anywhere in the neighborhood of the coast, or, as in this case, in the river itself, observing and preventing every vessel that might endeavor to effect a passage up or down the river."

therefore this cruiser was not sufficient to blockade this port.

Assuming that the Olinde Rodrigues attempted to enter San Juan July 17th, there can be no question that it was dangerous for her to do so, as the result itself demonstrated. She had had actual warning 12 days before. No reason existed for the supposition that the blockade had been pretermitted or relaxed. Her commander had no right to experiment as to the practical effectiveness of the blockade, and, if he did so, he took the risk. He was believed to be making the attempt, and was immediately captured. In these circumstances the vessel cannot be permitted to plead that the blockade was not legally effective.

After the argument on the motion to discharge the vessel, application was made by counsel for the claimant to the district judge, by letter, that the navy department be requested to furnish the court with all letters or dispatches of the commanders of vessels blockading the port of San Juan in respect to the sufficiency of the force. And a motion was made in this court "for an order authorizing the introduction into the record of the dispatches of Captain Sigsbee and Commander Davis," dated June 27, 1898, and July 26, 1898, and published by the navy department in the "Appendix to the Report of the Chief of the Bureau of Navigation, 1898," pp. 224, 225, 642.

To this the United States objected, on the grounds that isolated statements transmitting official information to superior officers, and consisting largely of opinion and hearsay, were not competent evidence; that the claimants had been afforded the opportunity to offer additional proof, and had not availed themselves thereof; that, if the court desired to have these papers before it, then the government should be permitted to define their meaning by counter proofs, and certain explanatory affidavits were at the same time tendered for consideration, if the motion were granted.

We need not specifically rule on the motion, or as to the admissibility of either the dispatches or affidavits, as we are satisfied that the dispatches have no legitimate tendency to establish that the blockade was not effective so far as the exclusion of trade from this port of the belligerent, whether in neutral or enemy's trading ships, was concerned. This country has always recognized the essential difference between a military and a commercial blockade. The one deals with the exclusion of trade, and the other involves the consideration of armed conflict with the belligerent. The necessity of a greater blockading force in the latter case than in the former is obvious. The difference is in kind and in degree.

·

Our government was originally of opinion that commercial blockades in respect of neutral powers ought to be done away with; but that view was not accepted, and during the

period of the Civil War the largest commer cial blockade ever known was established. Dana's Wheat. Int. Law (8th Ed.) p. 671, note 232; 3 Whart. Int. Dig. § 361.

The letters of Capt. Sigsbee, of the St. Paul, and of Commander Davis, of the Dixie, must be read in the light of this recognized distinction; and it is to be further remarked that after the letter of Capt. Sigsbee of June 27th the New Orleans was sent by Admiral Sampson officially to blockade the port of San Juan, thereby enormously increasing its efficiency.

In his report of June 28th, Appendix, Rep. Bur. Nav. 220, 222, Capt. Sigsbee describes an attack on the St. Paul off the port of San Juan, June 22d, by the Spanish cruiser Isabella II., and by the torpedo boat destroyer Terror, in which engagement the St. Paul severely injured the Terror, and drove the attacking force back into San Juan, and in his letter of June 27th he wrote: "It is advisable to constantly keep the Terror in mind as a possible active force; but, leaving her out of consideration, the services to be performed by the Yosemite, of blockading a well-fortified port containing a force of enemy's vessels whose aggregate force is greater than her own, is an especially difficult one. If she permits herself to be driven away from the port, even temporarily, the claim may be set up that the blockade is broken."

It is true that in closing his letter of June 27th Capt. Sigsbee said: "I venture to suggest that, in order to make the blockade of San Juan positively effective, a considerable force of vessels is needed off that port, enough to detach some to occasionally cruise about the island. West of San Juan the coast,1 although bold, has outlaying dangers, making it easy at present for blockade runners having local pilots to work in close to the port under the land during the night."

But we are considering the blockade of the port of San Juan, and not of the coast, and, while additional vessels to cruise about the island might be desirable in order that the blockade should be positively effective, we think it a sufficient compliance with the obligations of international law if the blockade made egress or ingress dangerous in fact, and that the suggestions of a zealous American naval commander, in anticipation of a conflict of armed forces before San Juan, that the blockade should be brought to the highest efficiency in a military as well as a commercial aspect, cannot be allowed to have the effect of showing that the blockade which did exist was as to this vessel ineffective, in point of law.

And the letter of Commander Davis, of the

1 The coast thus referred to is described in a work entitled "Navigation of the Gulf of Mexico and the Carribean Sea." issued by the navy department, vol. 1, p. 342, thus: "The shore appears to be skirted by a reef, inclosing numerous small cays and islets, over which the sea breaks violently, and it should not be approached within a distance of four miles."

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