Page images
PDF
EPUB

"The clearance is the proper document to exhibit and disclose the intention of the ship. The clearance, in this case, may not properly come within the category of 'simulated papers,' but it does not disclose the whole truth.

"The suppression of a most important part, makes the whole false.

"It may be true that in times of general peace, a clearance exhibiting the ultimate destination of the vessel, without disclosing an alternative one, may have sometimes been used by merchants to subserve some private purpose.

"But in times of war, when such omissions may be used to blindfold belligerents as to the true nature of the ship's intended voyage, and to elude a blockade, the concealment of the truth must be considered asprimA facie evidence of fraudulent intention.

''The Admiral, with full knowledge that her destined port is blockaded, takes a clearance for St. Johns, and is found a thousand miles from the proper course to such a port, and in the act of entering the blockaded port, and when thus arrested, for the first time, inquires if such blockade is raised.

"A vessel which has full knowledge of the existence of a blockade before she enters on her voyage, has no right to claim a warning or indorsement, when taken in the act of attempting to enter. It would be an absurd construction of the President's proclamation to require a notice to be given to those who already had knowledge. A notification is for those only who have sailed without a knowledge of the blockade, and got their first intimation of it from the blockading vessels.

"Now, the primary destination of this vessel is to a blockaded port. If the owners had reason to expect that possibly the blockade might be raised before the arrival of their vessel, and thus a profit be made by their ability to take the first advantage of it, then the clearance, in the exercise of good faith, should have made admission of the true primaiy destination of the vessel. If the truth had appeared on the face of this document, and if the master hud been instructed to inquire at some intermediate port, and to proceed no further in case he found the blockade still to exist, the owners might justly claim that their conduct showed 'no premeditated intention to violate the blockade.'

"But when arrested in the attempt to enter a port known to be blockaded, with a false clearance, it is too late to produce the bill of lading, or letter of instructions, to prove innocency of intention.

"In such cases, intentions can be judged only by acts.

"The true construction of this- proceeding, may be thus translated:

"Enter the blockaded port, if you can, without danger. If you are arrested by a blockading vessel, inform the captain that you were not instructed to run the blockade, but had merely called for information, and would be pleased to have your register indorsed, with leave, to proceed elsewhere.

"If so transparent a contrivance could be received as evidence of a want of any 'premeditated intention to violate the blockade,' the important right of blockade would be a bruturn fulmen, in the hands of a belligerent.

"' It would,' says Lord Stowell,' amount in practice to a universal license to attempt to enter, and being prevented, to claim the liberty of going elsewhere.'

"In the cases where the stringency of the general rule established by this judge (but overruled in Madieros vs. Hill) has been relaxed as to American vessels in certain circumstances, the clearances were taken contingently, but directly for the blockaded port, in the expectation of a relaxation of the blockade, with instructions to inquire as to the fact at a British or neutral port. The clearance exhibits the whole truth, and the place of inquiry, their good faith. *

"In these most material facts, this case differs from them."

With scarcely an exception, the British vessels which have been captured, for an attempted or intended violation of the belligerent rights of the United States, during the existing war, have been furnished with documents, of a similar deceptive character, to those found on board the Admiral.

The neutral traders of Great Britain have been permitted to make use of the port of Nassau, as the port of clearance and departure of their vessels innumerable, laden with arms, munitions of war, and supplies for the insurgents in the southern states.

If these vessels have been destined for a gulf port blockaded, their papers, concealing that fact, represent the port of destination to be Matamoras or Tampico. If the design has been to violate the blockade of an Atlantic port, the vessel was documented for St. John's or Halifax.

The ingenuity of these traders by no means equals their cupidity—and therefore, in every case of capture, the fraud, in some manner, has become quite transparent.

The next exception to the general right of neutral Contraband

,i • 1 i • commerce pro

nations to pursue their accustomed commerce, in hibited to neu

tinie of war, is that which prohibits their commerce bsl nations

with the enemy in such articles as are denominated

contraband.

What commerce shall be deemed contraband, between the forces of belligerent states and the merchants of neutral nations, has occasioned infinite discussion, and the rule has been subjected to frequent fluctuations, in accordance with the prevalence of the policy of the rigor of war or the freedom of commerce. The early elementary writers upon this subject distinguish between articles which are useful only as serving the purposes of war, such as arms and ammunition; such articles as serve the purposes of pleasure simply, and such as are of a mixed nature, that is to say, useful both in war and in peace. As to articles of the third description, the great, and perhaps the only difficulty arises; for whether they should be regarded as contraband or not, depends entirely upon the circumstances existing at the time.2

"The catalogue of contrabands has varied very what are conmuch, and in such a manner," says Lord Stowell, ^odSes.00TM" "as to make it very difficult to assign the causes for the variations; owing to peculiar circumstances the reason of which has not accompanied the history of the decisions."8 It is universally conceded that

1 Rose vs. Himeley, 4 Cranch, 272. 'Grotius, Book III., c. L, § 5. * TheJonge Margaretha, 1. Rob., 189.

commodities particularly useful in war, such as arms, ammunition, horses and their equipments, timber and materials for ship-building, and naval stores of all kinds, are contraband.1 Question as to The greatest difficulty seems to have arisen in the provisions. jxi'ticle of provisions. On occasions when the expectation has been to accomplish the purposes of war by reducing the enemy to famine, provisions have been held to be contraband. At other times, the criterion adopted by the courts, in determining whether the article of provisions is or is not contraband, has been, whether upon examination it is found to be in a crude condition, or whether it be in a condition of preparation for immediate consumption. On the same principle, unwrought iron has been regarded with more indulgence than iron fabricated for use, as anchors, &c.

Thus, too, hemp has been regarded as an allowable article of merchandise, while cordage is contraband; and wheat has been held to be a lawful article of trade, while biscuit, or any of the final preparations of it for human use, are held to be unlawful.2

The rigid rule of law, and its modern relaxations as to provisions, are explained by Lord Stowell in a case in which the question was directly before the court.8 "The right," he says, "of taking possession of cargoes of this description, going to an

1 Vattel, Book III., c. vii, § 112.

* The Jonge Margaretha, 1 Rob., 189. .

* The Haabet, 2 Rob., 182; vide also, The Jonge Hermanns,

4 Rob., 95; The Oute Oeselhchaft, 4 Rob., 94; The Charlotte Fox, 5 Rob., 275; The Twee Juffrowen, 4 Rob., 158; Tht Jonge Tobias, 1 Rob., 329; The Mana, '\ Rob., 340; The Zacheman,

5 Rob., 152.

« PreviousContinue »