DEOISIOA^ REKDEBED BV CHIEF JUDGE DUNLOP, DISTRICT OF COLUMBIA, PRIZE CASE OF THE SCHOONER "TROPIC WIND." i . DECISION BENDEBED B7 CHIEF JUDGE DUNLOP, U.S. D/'s-tr.'ct Cou^^i vnDISTRICT of COLUMBIA, PRIZE CASE OF THE SCHOONER "TROPIC WIND." WASHINGTON: GOVERNMENT FEINTING OFFICE. 1861. Eloo DECISION ON THE BLOCKADE. DISTRICT COURT OF THE UxNITED STATES FOR THE DISTRICT OF COLUMBIA. UNITED STATES ET AL. vs. SCHOONER "TROPIC WIND" AND CARGO. June Term, 1861. — In Admiralty. A libel lias been filed by the United States and the captors in this court, sitting in admiralty, to condemn as prize the Eng- lish schooner " Tropic Wind" and cargo, valued at $22,000, for violating a blockade of the ports of Virginia, proclaimed by the President of the United States on the 27th April, 1861. The capture was made in or near the mouth of James river, by the United States ship Monticello, Captain , on the 21st May, 1861. The blockade of the port of Richmond, Virginia, into which port the " Tropic Wind " had entered before the proclamation is alleged to have been made effective on the 30th April, and notice of it brought home to the captain of the "Tropic Wind" and the British Consul at Richmond at least as early as the 2d of May. Fifteen days w^ere allowed by the United States to neutral vessels to leave the blockaded port of Richmond, from the 30th April, the day of the effective blockade. It appears that the " Tropic Wind " commenced to load her cargo at Richmond, Virginia, on the 13th of May, completed her lading on the 14tli May, and sailed from Riclimond the same day, bound for Halifax, Nova Scotia. Mr. Carlisle appeared for the vessel and cargo, filed the answ^er of Captain Layton, and the case has been argued and submitted to me on the libel, answer, evidence taken in preparatoria, and official documents. The authority of the President to institute the blockade is de- nied by the respondents, who insist that this power, under the Constitution of the United States, can only be exercised by the National Legislature. And this is the first question to be con- sidered. It is true no department of the Federal Government can exer- cise any power not expressly conferred on it by the Constitution of the United States, or necessary to give effect to granted powers ; all others are reserved to the States respectively, or to the people. In the second article, second section, of the Consti- tution of the United States, is this provision : "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." In the war with Mexico, declared by Congress to exist by the act of Mexico, (see 9tli Statutes at Large, page 9,) the Supreme Court have maintained, in two cases, that the President, ivitliout any act of Congress, as commander-in-chief of the army and navy, could exert the belligerent right of levying contributions on the enemy to annoy and weaken him. In the case of Fleming et al. vs. Page, (9th Howard, 615,) the present Chief Justice says : "As commander-in-chief, he is authorized to direct the movements of the naval and military forces, placed by law at his command, and to employ them in the manner lie may deem most effectual to harass and conquer and subdue the enemy." Again, at page 616 : "The person who acted in the character of collector, in this 5 instance, acted as such under the authority of the military com- mander, and in obedience to his orders, and the duties he exacted and the regulations he adopted ?yere not tJiose prescribed hy law, but by the President in Ms character of commander -in-cliief. The custom- house was established in an enemy' s country as one of the loeapons of war. It was established not for the purpose of giving the people of Tamaulipas the benefit of commerce with the United States, or with other countries, but as a measure of hostility and as a part of the military operations in Mexico ; it was a mode of exacting contribu- tions from the enemy to support our army, and intended also to cripple the resources of Mexico and make it feel the evils and the burdens of the war. The duties required to be paid were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of w^ar justify when an army is operating in the enemy's country." The other case to v/hicli I allude is Cross et al. vs. Harrison, (16tli Howard, 189, 190.) Judge Wayne, in delivering the opinion of the Supreme Court, says : "Indeed, from the letter of the Secretary of State, and from that of the Secretary of the Treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his Cabinet. We think it was a rightful and correct recognition under all the circumstances, and when Ave say rightful we mean that it was constitutional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterwards the United States had military possession of all the Upper California. Early in 1847 the President, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army, which had the conquest in possession, &c. No one can doubt that these orders of the President, and the action of our army and navy commanders in California, in conformity 6 with them, was according to the law of arms," &c. (See also pages 191, 193, 195, 196, 201.) Blockade is a belligerent right under tlie law of nations where war exists, and is as clearly defined as the belligerent right to levy contributions in the enemy's country. As the Supreme Court holds the latter power to be constitutionally in the President, without an act of Congress, as commander-in-chief of the army and navy, it follows necessarily that the power of blockade also resides with him ; indeed, it would seem a clearer right, if 230ssible, because, as chief of the navy, nobody can doubt the right of its commander to order a fleet or a ship to capture an enemy's vessel at sea, or to bombard a fortress on shore, and it is only another mode of assault and injury to the same enemy to shut up his harbors and close his trade by the. same ship or fleet. The same weapons are used. The commander only varies the mode of attack. In the 1st article, section 8, clause 11, of the Constitution, under the legislative head, power is granted to Congress " to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." These powers are, therefore, solely confided to and within the control of the Legis- lature, and cannot be exercised by the President. The President cannot declare war, grant letters of marque, &c., though all other belligerent rights, arising out of a state of war, are vested in him as commander-in-chief of the army and navy. But wa?- declared by Congress is not the only war within the contemplation of the Constitution. In clause 15, article 1, section 8, among the legis- lative powers is this : " To provide for calling forth the militia to execute the laws of ihe Union, suppress insurrections, and repel invasions ;" and the Legislature, in execution of this power, passed the act of 1795, (1st Satutes at Large, 424,) vesting in the Presi- dent, under the terms set forth in the statute, discretionary power over the militia in the cases enumerated in this 15th clause of section 8, article 1. ^he status of foreign nations whose provinces or dependencies are in revolution, foreign invasions of our own country, and insurrection at home, are political questions, deter- minable by the executive branch of our government. I refer on this subject to the following cases in the Supreme Court of the United States. " The Santisima Trinidad," (7th Wheaton, 305 :) "This Court has repeatedly decided that it will not undertake to determine who are sovereign States, but will leave that question to be settled by the other departments who are charged with the ex- ternal affairs of the country, and the relations of peace and war. It may, however, be said that both the Judiciary and the Executive have concurred in affirming the sovereignty of the Spanish colonies now in revolt against the mother country. But the obvious answer to this objection is, that the Courts following the Executive Depart- ment, have merely declared the notorious fact that a civil war exists between Spain and her American provinces, and this, so far from affirming, is a denial of the sovereignty of the latter. It would be a public and not a civil war if they were sovereign States. The very object of the contest is to decide whether they shall be sovereign and independent or not ; all that the Court has affirmed is, that the existence of this civil tvar gave to both parties all the rights of war against each other." In cases of invasion by a foreign power or insurrection at home, in which cases, under the act of 1795, the President may call out the militia, the Supreme Court, in 12 Wheaton, (case of Martin vs. Mott,) pages 29-30, says it is exclusively with the President to decide whether the exigencies provided for have arisen. These also are political questions, determinable by the Executive alone, and the courts follow that branch of the govern- ment. In this case, at page 32, the Supreme Court say: " It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself." Whether insurrection has grown to such a head, has become so formidable in power as to have culminated in civil war, it seems to me» must also belong, as to its decision, to the same political branch of the government. The President, in his procla- mations relating to tlie blockade of the ports of the Confederate States, calling out seventy-five thousand militia to suppress in- surrection and the resistance to the Federal laws, alleges — "That nine States have so resisted," and have "threatened to issue letters of marque to authorize the bearers thereof to commit assaults against the vessels, property, and lives of citizens engaged in commerce on the high seas and in the waters of the United States; that public property of the United States has been seized, the col- lection of the revenue obstructed, and duly commissioned officers of the United States, while engaged in executing the orders of their superiors, have been arrested and held in custody, as prisoners, or have been impeded in the discharge of their official duties, without due legal process, by persons claiming to act under authorities of the States of Virginia and North Carolina, an efficient blockade of the ports of those States will also be established." These facts, so set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists. Blockade itself is a belligerent right, and can only legally have place in a state of war ; and the notorious fact that immense armies, in our immediate view, are in hostile array against each other in the Federal and Confederate States, the latter having organized a government and elected officers to administer it, attest the Executive declaration that civil war exists — a sad war, which, if it must go on, can only be governed by the laws of war, and its evils mitigated by the principles of clemency en- grafted upon the war code by the civilization of modern times. Nor does the assertion of the right in the proclamation of the 19th April, 18G1, to proceed against privateersmen, under the laws of the United States, as pirates, militate against the con- struction I have above given of the two proclamations as averring the existence of civil war. In the case of Eose vs. Himely, 4th Cranch, 272-3, Chief Justice Marshall, in delivering the opinion of the Court, says : "It is not intended [to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to pos- sess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and the proceedings under it will decide whether it is an exercise of belligerent rights, or exclusivel}^ of his sovereign power, and whether the court, in applying this law to par- ticular cases, acts as a prize court or as a court enforcing municipal regulations." In this case I am sitting in admiralty, adjudging a question of prize, under a capture, for alleged violation of blockade. I do not find, on examination of the writers on public law, any difference as to belligerent rights in civil or foreign war, and Judge Story, in 7th Wheaton, as heretofore cited by me, says they are the same. Blockade being one of the rights incident to a state of war, and the President having in substance asserted civil war to exist, I am of the opinion that the blockade was lawfully proclaimed by the Executive. The next inquiry is, when did the blockade become effective, and as such come to the knowledge of the respondents or their government 1 Notice, actual or constructive, will do. In the present case Flag Officer Pendergrast, commanding home squadron, officially announced the blockade of the ports of Virginia, whose outlet was Hampton Poads, as effective on the 30th of April, 1861, and the Secretary of the Navy, in his letter of the 9th May, 1861, states this notice was sent to the Baltimore and Norfolk papers, and by one or more of them published. In a certificate of the British consul at Pichmond, dated 14th of May, 1861, found on board the "Tropic Wind" at the time of her capture, he states he had received an authoritative communi- cation of the 11th of May, which he immediately communicated to the captains of British merchant vessels and others interested in British trade, that fifteen days would be allowed to leave port after the actual commencement of the blockade, with or without 10 cargoes, " and whether the cargoes were shipped before or after the commencement of the blockade," and that upon inquiry he found the 2d of May, 1861, to be the day when the efficient blockade began. There does not appear in the cause any evidence to show that the United States Government agreed to relax the law of blockade so as to allow British vessels to load cargoes and come out of port after knowledge of effective blockade was brought home to them. The letter of Mr. Welles to Mr. Seward of date 9th of May, 1861, in answer to inquiries of Lord Lyons relative to British vessels in Virginia ports, and the operation of the blockade upon them, &c., and which it must be presumed was sent to Lord Lyons, does not contain the relaxation of the law of blockade referred to in the British consul's certificate of the 14th of May, 1861 ; by which I mean that it contains no permission to British vessels to come out of port, within the fifteen days, with cargoes laden on hoard after notice of commencement of effective blockade. I give an extract from that letter of the 9tli of May, 1861 : "Fifteen days have been specified as a limit for neutrals to leave the ports after actual blockade has commenced, with or without cargo, and there are yet remaining five or six days for neutrals to leave ; with proper diligence on the part of persons interested, I see no reason for exemption to any.'' It also appears in the evidence of the master (Layton) that he heard in Richmond of the blockade as effective before he began to load his cargo, and was informed it commenced on the 2d of May. All the testimony concurs in showing that the cargo was laden on board the " Tropic Wind" on the 13th and 14th days of May, 1861. No principle of prize law seems better settled than that such lading violates the blockade and forfeits both vessel and cargo. In " Weldman on Search, Capture, and Prize," page 42, the act of egress is " as culpable as the act of ingress ; and a blockade is just as much violated by a ship passing outwards as inwards. A blockade is intended to suspend the entire commerce 11 of the place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed, to a neutral vessel is, that, having already taken in a cargo before the blockade begins, she may be at liberty to retire with it. If she afterwards takes on board a cargo, it is a fraudu- lent act and a violation of the blockade. It is lawful for a ship to withdraw from a blockaded port in ballast, or with a cargo shipped bona fide before notice of the blockade." (See also Vrouw Judith, Robinson, 150 ; the Juno, 2d Robinson, 119 ; the Nossa Senhora, 5th Robinson, 52.) In Weldman's International Law, vol. 2d, page 205, we find this passage : " Where the blockade is known at the port of shipment, the master becomes an agent for the cargo ; in such case, the owners must at all events answer to the country imposing the blockade for the acts of persons employed by them ; otherwise, by sacrificing the ship, there would be a ready escape for the cargo, for the benefit of which the fund was intended." (See also the James Cook, Edwards, 261 ; the Arthur, Edwards, 202 ; the Exchange, Edwards, 40, 1st Kent Commentaries, 2d edition, 144, 146 ; Olivera vs. Union Insurance Company, 3d Wheaton, Supreme Court Rep., 194. See also Wheaton's note to the same case.) It follows, upon the case as it now stands, there must be condemnation of both vessel and cargo. JAMES DUNLOP. June 13, 1861. N. B. — After I had written this opinion on the proofs and papers then before me, but before it was known or copied, I was requested by Mr. Carlisle, by note of the 14th, to ask of the State Department the whole corre8})ondence, a part of which only was in the cause ; and, on Saturday evening, the 15th of June, the document A was handed to me. I have formed no opinion of the influence this further correspondence has on the legal aspect of the case ; and as the parties concerned on both sides have had no opportunity to see or comment on it, and may wish further proof as to the relaxation by the United States of the strict law of blockade, I will allow further proof to be taken by either party on this single point, and postpone any decision till the proof is in, and the counsel on both sides heard. This course is, I l^elieve, consonant with prize practice. JAMES DUNLOP. June 17, 1861. True copy : Test, E. J. Middleton, Clerk. -4 . • _ 1 M i-