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to be, that a neutral vessel, visiting a blockaded port, in ignorance of the blochade, shall be entitled to be warned off, and not liable to arrest, unless she again approaches the blockaded port, with intent to enter it. The Supreme Court of the United States regards these treaty compacts as the true exposition of the law of nations in respect to blockades. (Fitzgibbons vs. Newport Ins. Co., 4 Cranch, 199.)
"This subject has been amply discussed in the jurisprudence of the United States in all its bearings, and must be regarded as familiar to the government and the publicists of the country when the proclamation of April 19th was published.
"The emphatic doctrine announced in the adjudications of the courts of this country, and set forth in the dispatches of learned jurists, is, that a neutral vessel, going voluntarily to a blockaded port, knowing of the blockade, with design to enter the port, and •with whatever pretence of inquiry or communication thereat, is guilty of a fraud upon the belligerent rights of the blockading party, and is liable to condemnation therefor. (Cases before cited, 5 Cranch, 335; 6 Cranch, 29; 1 Duer, 691, notes; note to 3 Wheat, 196.)
"In view of the state of the law and its administration, in regard to visitation of blockaded ports by neutral vessels, I think the proclamation of April 19th, 1861, must be understood to refer to, and embrace only, those vessels approaching the port in ignorance of its being under blockade. If the fact of its being blockaded is known to the vessel when the voyage is undertaken, it is unlawful for her to enter within the limits of the blockade to seek information as to its continuance; and immunity from capture for such act, cannot be predicated upon the terms of the Executive proclamation."
The case of Tlie Revere, adjudicated in the United States District Court of Massachusetts., presented the same question; and it is thus considered by the learned judge presiding in that district:
"The second ground of defence relied upon is, that this vessel had no warning indorsed upon her register, as set forth in the President's proclamation of the 19th of April."
"It is contended that, under the proclamation, The Revere, with information of the existence of the blockade, had a right to sail from Halifax direct to this port (Beaufort), knowing of the blockade, and to enter it, if not there warned off, and the warning indorsed on her register by a ship of war, in the manner set forth in the proclamation; and that, until such warning, she was not liable to capture for an attempt to enter."
"In support of this proposition, an argument of much force has been presented, from the language of the proclamation and the decision of the Supreme Court in the case of the Maryland Ins. Co. vs. Woods, 6 Cranch, 29, and other authorities, cited by the counsel for the claimants. On the other hand, it is contended, that by the true construction of the proclamation, only those who are ignorant of the blockade are entitled to a warning and indorsement; and that it is not to be presumed that a belligerent would gratuitously narrow his own rights to his own injury; that by the Law of Nations this vessel had such information and notice as to preclude her from the right to inquire at the port and attempt to enter.
"This view is strengthened by the earlier part of the proclamation, which declares that a blockade is set on foot, in pursuance of the law of nation s.
"The notice given to the world by Commodore Pendegrast, evidently gives to the proclamation, the construction contended for by the captors.
"After referring to the proclamation, and stating that he had sufficient force for carrying it into effect, he says: 'All vessels passing the capes of Virginia, coming from a distance, and ignorant of the proclamation, will be warned off.'
"The world thus had notice, that those only were to be warned who were ignorant.
"This question of a necessity of a warning and indorsement, came before the eminent admiralty judge in the southern district of New York, in the case of The Hiawatha, which had left the port of Richmond, and he held, that previous knowledge of the blockade, dispensed with the necessity of warning.
"In the case of the brig Hallie Jackson, which was attempting to enter a blockaded port, the same learned jiidge held that she was not entitled to be warned off, 'if approaching with intent to violate the blockade.'"
The learned judge, after thus clearly manifesting his'opinion as to the true construction of the Executive proclamation, proceeds to declare his views, that even though the literal construction of that instrument were required, under the rules of interpretation, the immunity claimed by such construction, could only be set up and availed of, by neutral vessels, whose acts had been characterized by fairness, good faith, and honesty.
This position, although it would substitute a conditional immunity for that absolute immunity which the words of the proclamation would seem to import, is nevertheless not without support, in view of the uniform decisions of prize courts, inflicting the penalty of confiscation upon vessels convicted of deceptive practices upon belligerent rights, by simulated papers presenting a false destination, by mutilation of documents, by clandestine approach, and by false pretences of stress of weather, want of provisions, and the like, as an excuse for the attempt to enter an interdicted port, and even declining to allow further proof of the innocence and neutral character of the shipper and owner of cargo, captured on board such vessel.
If this position be well taken, then the question of construction of the proclamation of blockade becomes of inferior interest and consequence, inasmuch as by far the greater portion, if not all the « cases of capture, under its provisions, have developed convincing proofs against the vessels, of dishonest and fraudulent practices, in some of the particulars, for which the penalty of confiscation is decreed by the authoritative decisions.
The subject of the right of a neutral vessel, in time of war, having previous knowledge of the existence of a belligerent blockade, to proceed upon a voyage direct to the port blockaded, with instructions, and the design, in fact, to inquire at the port itself, whether the blockade is still in force, was very ably discussed by the learned judge of the Circuit Court of the United States for the Third Circuit, in the case of The Admiral, on apperd before him from a final decree of condemnation rendered by the District Court of the United States for the Eastern District of Pennsylvania.
His conclusions, as will be seen, are in accordance with the well-settled doctrine of the English prize courts, and with the recent decisions of the several District Courts of the United States.
The learned judge says:
"I agree with C. J. Tindal, in Medeiroe vs. IIUL opinion of Mr.
° , , •' ... Justice Gner.
8 Bing., 231, that the mere act of sailing to a port which is blockaded at the time the voyage commenced, is not an offence against the law of nations, where there is no premeditated intention of breaking the blockade.
"Consequently, if, in the present case, The Admiral had taken out a clearance for Savannah, with the expectation that the blockade might be removed before her arrival, with instructions to make inquiry as to its continuance, at New York or Halifax, or other neutral port, and, after having made such inquiry, had made no further endeavor to approach or enter the blockaded port, her seizure and condemnation as prize could not have been justified.
"But this presents a very different case. She was off Tybee Island, sailing for the blockaded port. She had made no inquiry on the way, had no reason to believe the blockade to be raised, and when arrested on her attempt to enter, she exhibits a clearance for St. Johns, New Brunswick (a port she may be said to have passed), and a letter of instruction from her owners, 'to call off the harbor of Savannah to endeavor to meet the blockading ship, and get the officer in command to indorse the. register, &c, but to make no attempt to run the blockade.'