1. A blockade is not to be extended by construction.
2. The mouth of the Rio Grande was not included in the blockade
of the ports of the rebel states, set on foot by the national
government during the late rebellion, and neutral commerce with
Matamoras, a neutral town on the Mexican side of the river, except
in contraband destined to the enemy, was entirely free.
3.
Semble that a belligerent cannot blockade the mouth
of a river, occupied on one bank by neutrals with complete rights
of navigation.
4. A vessel destined for a neutral port with no ulterior
destination for the ship, or none by sea for the cargo to any
blockaded place, violates no blockade.
Hence trade, during our late rebellion, between London and
Matamoras, two neutral places, the last an inland one of Mexico,
and close to our Mexican boundary, even with intent to supply, from
Matamoras, goods to Texas, then an enemy of the United States, was
not unlawful on the ground of such violation.
5. The trade of neutrals with belligerents in articles not
contraband is absolutely free unless interrupted by blockade; the
conveyance by neutrals to belligerents of contraband articles is
always unlawful, and such articles may always be seized during
transit by sea.
6. The classification of goods as contraband or not contraband,
which is best supported by American and English decisions, divides
all merchandise into three classes.
Page 72 U. S. 29
i. Articles manufactured, and primarily or ordinarily used for
military purposes in time of war.
ii. Articles which may be and are used for purposes of war or
peace according to circumstances.
iii. Articles exclusively used for peaceful purposes.
7. Merchandise of the first class destined to a belligerent
country or places occupied by the army or navy of a belligerent is
always contraband; merchandise of the second class is contraband
only when actually destined to the military or naval use of a
belligerent; while merchandise of the third class is not contraband
at all, though liable to seizure and condemnation for violation of
blockade or siege.
8. Parts of a cargo described in a ship's invoices as cases of
"artillery harness," as "men's army Bluchers," as "artillery
boots," and as "government regulation gray blankets," come within
the first class.
9. Contraband articles contaminate the parts not contraband of a
cargo if belonging to the same owner; and the non-contraband must
share the fate of the contraband.
10. In modern times, conveyance of contraband attaches in
ordinary cases only to the freight of the contraband merchandise.
It does not subject the vessel to forfeiture.
11. But in determining the question of costs and expenses, the
fact of such conveyance may be properly taken into consideration
with other circumstances, such as want of frankness in a neutral
captain engaged in
a commerce open to great suspicion and his destruction of some
kind of papers in the moment of capture, and this although it
seemed almost certain that the ship was destined to a port really
neutral, and with a cargo for the most part neutral in character
and destination:
12. The captain of a merchant steamer, when brought to by a
vessel of war, is not privileged by the fact that he has a
government mail on board, from sending, if required, his papers on
board the boarding vessel for examination; on the contrary, he is
bound by that circumstance to the strictest performance of neutral
duties and to special respect of belligerent rights.
13. Citizens of the United States faithful to the Union, who
resided in the rebel states at any time during the civil war, but
who during it escaped from those states, and have subsequently
resided in the loyal states, or in neutral countries, lost no
rights as citizens by reason of temporary and constrained residence
in the rebellious portion of the country.
Appeal from a decree of the district court for the Southern
District of New York, condemning for attempt to break blockade, a
vessel ostensibly on a voyage from London to the mouth of the Rio
Grande, with a cargo documented for a neutral port.
Page 72 U. S. 30
The case was thus:
The territory of the United States, as is generally known, is
separated on one part of its boundary from the Republic of Mexico
by the Rio Grande, a large stream, entering by a broad mouth, and
by a course at that point nearly east, the Gulf of Mexico. At the
mouth of the river, a bar prevents the passage of vessels drawing
over seven feet of water. By treaty between the two nations, the
boundary line begins in the Gulf three leagues from land opposite
the mouth of the river and runs northward from the middle of it.
The navigation of the stream is also made free and common to the
citizens of both nations, without interruption by either without
the consent of the other, even for the purpose of improving the
navigation.
About forty miles up the river,
on the United States bank of
the stream, in the State of Texas, stands the American Town of
Brownsville, and nearly opposite, on the Mexican bank, the old
Spanish one of Matamoras, separated but by the river. The natural
facilities of intercourse between the two places are thus extremely
easy. [
See sketch
infra, p. <|72 U.S.
173|>173.]
Both towns are approached from the Gulf by the Rio Grande; but
Brownsville may be also approached through places more on the
northern coast of the Gulf, and wholly within the federal
territory, to-wit, by the
Brazos Santiago and the
Boca
Chica.
In this state of geographical position and of treaty with
Mexico, the President, on the 19th April, 1862, during the late
rebellion in the Southern states, and with the purpose, as declared
to foreign governments, to "blockade the whole coast from the
Chesapeake Bay
to the Rio Grande," declared the intention
of the national government to set on foot a blockade of those
states "by posting a competent force
so as to prevent the
entrance or the exit of vessels," and a naval force was soon
after stationed near the mouth of the Rio Grande. No force of any
kind was placed along the Texan bank of the river, that region
being then in rebel possession, as the opposite was in Mexican.
Nothing was said in these proclamations of the port of
Page 72 U. S. 31
Brownsville being blockaded, though in a subsequent proclamation
(February 18, 1864), relaxing the blockade, it was recited as a
matter of fact that the place had been blockaded.
With this blockade above mentioned, as made by the proclamation
of 19th April, in force, the
Peterhoff, a British built
and registered merchant screw propeller, drawing sixteen feet of
water, not a fast sailer, set sail from London upon a voyage
documented by manifest, shipping list, clearance, and other papers,
for the port of
Matamoras.
The bills of lading, of which there were a large number, all
stipulated for the delivery of the goods shipped "off the Rio
Grande, Gulf of Mexico,
for Matamoras," adding, that they
were to be taken from alongside the ship, providing lighters can
cross the bar.
With the exception of a portion consigned to the orders of the
captain, which was owned by the owners of the vessel, the cargo was
represented in agency or consigneeship chiefly by three different
persons on board the vessel as passengers -- Redgate, Bowden, and
Almond -- all natives of Great Britain. Redgate stated that a large
portion was consigned to him as a "merchant residing in Matamoras,"
and that, "had the goods arrived there, they were to take the
chances of the market." Bowden testified to the same effect, that,
had they arrived, the portion represented by him would have taken
the chances of sale in the market, and the proceeds been returned
to the shippers. Almond, that it was his intention to settle in
Matamoras, and to sell the goods represented by himself, "taking my
chance in the market for the sale."
At the time of this voyage, Mexico was at war with France --
that is to say, France was endeavoring to place Prince Maximilian
on the throne of Mexico, against the wishes of its people and of
its legitimate President, Juarez, and was supporting its
pretensions by force of arms in the
Mexican territory.
The cargo of the
Peterhoff, valued at $650,000, was a
miscellaneous cargo, and was shipped by different shippers, all
Page 72 U. S. 32
British subjects except one, Redgate, hereafter described.
A
part of it was owned by the owner of the vessel.
Of its numerous packages, a certain number contained articles
useful for military and naval purposes in time of war. Among them,
as specially to be noted, were thirty-six cases of artillery
harness in sets for four horses, with two riding saddles attached
to each set.
The owner of this artillery harness owned also a
portion of the non-military part of the cargo. There were
14,450 pairs of "Blucher" or army boots; also "artillery boots;"
5,580 pairs of "government regulation gray blankets;" 95 casks of
horseshoes of a large size, suitable for cavalry service; and
52,000 horseshoe nails.
There were also considerable amounts of iron, steel, shovels,
spades, blacksmiths' bellows and anvils, nails, leather; and also
an assorted lot of drugs; 1,000 pounds of calomel, large amounts of
morphine, 265 pounds of chloroform, and 2,640 ounces of quinine.
There were also large varieties of ordinary goods.
Owing to the blockade of the whole Southern coast, drugs, and
especially quinine, were greatly needed in the Southern states.
During the rebellion, Matamoras, previously an unimportant
place, became suddenly a port of immense trade; a vast portion of
this new trade having been, as was matter of common assertion and
belief, carried on through Brownsville, between merchants of
neutral nations and the Southern states. And it was stated at the
bar that the federal government had, for reasons of public policy,
even granted several clearances from New York to Matamoras during
the rebellion, though only on security being given that no supplies
should be furnished to persons in rebellion.
The Peterhoff never reached the Rio Grande. She was captured by
the United States vessel of war
Vanderbilt on suspicion of
intent to run the blockade and of having contraband on board. When
captured she was in the Caribbean Sea south of Cuba, and in a
course to the Rio Grande, through the Gulf of Mexico, having some
days previously been
Page 72 U. S. 33
boarded, but not captured, by another federal cruiser, the
Alabama.
She had on board when captured a British mail for Matamoras,
closed under official seal. The officer of the
Vanderbilt,
on boarding her, asked her captain to take to that vessel his
papers. This the captain of the
Peterhoff refused to do,
assigning as the ground of refusal that he was in charge of her
Majesty's mail, and requiring that all papers should be examined on
the
Peterhoff itself.
In addition it appeared that papers or articles of some kind had
been destroyed in view of capture. A "package" was thrown
overboard. The captain of the
Peterhoff, having in a
general way presented a similar statement on the examination
in
preparatorio, gave, on a supplemental examination, this
circumstantial account of the matter:
"Before leaving Falmouth, I received a telegram from the owner
of the ship, instructing me to question the passengers as to
whether they had any documents in their possession. I immediately
called them together. They, one and all, including a passenger
named Mohl, declared that they had nothing in their possession of
such description. After the ship left Falmouth, Mr. Mohl came to
me, and stated that he had a small packet of white powder --
'patent white powder' he called it -- in which he and some of his
friends were interested. I said, 'You had better deliver it up to
me, for it is a dangerous article to have on board.' He gave it to
me and I locked it up in my stateroom. I asked him why he had not
mentioned this before leaving Falmouth. He replied, that as it was
neither papers or writings of any kind, he did not think it
requisite. When the
Alabama approached, us I called Mr.
Mohl and told him that I did not like having this packet of powder
on board, and that if the ship was likely to be searched, it must
either be opened or destroyed, and then gave it in charge of one of
my officers, the second officer, with orders to throw the package
overboard if I instructed him. Our vessel not being examined by the
Alabama, it was not then destroyed. After we were boarded
by the
Vanderbilt, I called Mr. Mohl again and requested
him to let me see the contents of the package. To this he objected,
saying it was a patent, and could not be seen by any but himself
and friends. So
Page 72 U. S. 34
I ordered it to be thrown overboard, fearing it might jeopardize
the ship in some way, and it was accordingly thrown overboard. I
believe it to have been white powder as stated by Mr. Mohl, and had
no reason to believe otherwise, and do not think anyone knew the
contents of this packet but this same Mr. Mohl."
One of the seamen, however, testified that the package thrown
overboard was a box into which the captain put papers, and that
giving it to the second officer he told him to put something in the
box to sink it, and on raising of his finger to let it go
overboard.
Another seaman, that the package was "a sealed parcel wrapped in
brown paper."
A third, that it was a package sewed up in canvas weighted with
lead so as to sink it, and was spoken of by the captain as
"dispatches;"
"that after sending for Mr. Mohl to-witness the necessity for
throwing the package overboard, he then ordered the second officer
to throw it over from a part of the ship where it would not be
observed by the
Vanderbilt, which he did; and that Mr.
Mohl appeared very much depressed at the necessity."
Mohl was permitted by the government after the capture to go at
large.
The captain admitted that he had torn up some letters, which he
swore were letters from his wife and father; swearing also that no
other papers were destroyed.
A small portion of the cargo, about �150, was owned by,
and a large part, about �20,000, was consigned to a person
named Redgate, already referred to. In the part consigned he was
interested by way of commission. Redgate was a native of England,
but had come to Texas while it was a Mexican province, and was a
resident there when it was annexed to the United States. He made
this statement, not disproved, of his conduct during the
rebellion.
"Since the annexation of Texas to the United States, the
deponent has borne true allegiance to the United States in every
matter and thing. In every way and shape possible for him to act,
he opposed the secession of the State of Texas from the
Page 72 U. S. 35
Union. At the time of the passage of the so-called secession
ordinance of that state, he was a member of its legislature. After
the passage, he, together with fourteen members of the house of
representatives, four senators, and six protesting delegates of the
secession convention, signed an address to the people of Texas,
urging them to resist the ordinance and to remain in the Union.
That address was printed and circulated, as far as possible,
throughout the state. He contributed to the circulation of the said
address a very considerable amount of money. [Address produced.]
Owing to the state of public feeling in Texas at the time of the
publication and circulation of the address, the lives of the
signers of the same were greatly periled; one of them has since
been murdered, and another is now in duress, as the deponent is
informed and believes; and the remainder of the said twenty-four
senators, members, and protesting delegates (amongst the latter
this deponent) are all, or nearly all, in exile from the State of
Texas as political refugees. After the promulgation of the said
address, and before leaving the State of Texas, as he has reason to
believe, he narrowly escaped assassination, and he knows that his
life was conspired against by the secessionists in consequence of
his political opinions and of his opposition to secession."
After leaving Texas, Redgate became a resident of Matamoras,
trading there and thence. He was on board the vessel when captured,
superintending his interest.
The vessel having been taken into New York, was there libeled in
the district court as prize of war. Claim was filed by the captain,
intervening for the interest of his principals the "owners of the
steamer and cargo;" also by Redgate as "owner, agent, and consignee
of a large portion of the cargo," and by Almond as "owner, agent,
and consignee" of another portion.
The district court condemned the vessel and cargo as lawful
prize of war.
The case was now before this Court, on the appeal of Jarman,
professing to represent the vessel and cargo, and on the appeals of
Redgate and Almond, professing to represent their respective
portions of the cargo.
Page 72 U. S. 49
THE CHIEF JUSTICE delivered the opinion of the Court.
This case is of much interest. It was very thoroughly argued,
and has been attentively considered.
The
Peterhoff was captured near the island of St.
Thomas, in the West Indies, on the 25th of February, 1863, by the
United States Steamship
Vanderbilt. She was fully
documented as a British merchant steamer, bound from London to
Matamoras, in Mexico, but was seized, without question of her
neutral nationality, upon suspicion that her real destination was
to the blockaded coast of the states in rebellion, and that her
cargo consisted, in part, of contraband goods.
The evidence in the record satisfies us that the voyage of the
Peterhoff was not simulated. She was in the proper course
of a voyage from London to Matamoras. Her manifest, shipping list,
clearance, and other custom house papers, all show an intended
voyage from the one port to the other. And the preparatory
testimony fully corroborates the documentary evidence.
Nor have we been able to find anything in the record which
fairly warrants a belief that the cargo had any other direct
destination. All the bills of lading show shipments to be delivered
off the mouth of the Rio Grande, into lighters, for Matamoras. And
this was in the usual course of trade. Matamoras lies on the Rio
Grande forty miles above its mouth, and the
Peterhoff's
draught of water would not allow her to enter the river. She could
complete her voyage, therefore, in no other way than by the
delivery of her cargo into lighters for conveyance to the port of
destination. It is true that, by these lighters, some of the cargo
might be conveyed directly to the blockaded coast; but there is no
evidence which warrants us in saying that such conveyance was
intended by the master or the shippers.
We dismiss, therefore, from consideration the claim, suggested
rather than urged in behalf of the government, that
Page 72 U. S. 50
the ship and cargo, both or either, were destined for the
blockaded coast.
But it was maintained in argument (1) that trade with Matamoras,
at the time of the capture, was made unlawful by the blockade of
the mouth of the Rio Grande, and if not, then (2) that the ulterior
destination of the cargo was Texas and the other states in
rebellion, and that this ulterior destination was in breach of the
blockade.
We agree that so far as liability for infringement of blockade
is concerned, ship and cargo must share the same fate. The owners
of the former were owners also of part of the latter; the adventure
was common; the destination of the cargo, ulterior as well as
direct, was known to the owners of the ship, and the voyage was
undertaken to promote the objects of the shippers. There is nothing
in this case as in that of the
Springbok to distinguish
between the liability of the ship and that of the merchandise it
conveyed.
We proceed to inquire, therefore, whether the mouth of the Rio
Grande was, in fact, included in the blockade of the rebel
coast?
It must be premised that no paper or constructive blockade is
allowed by international law. When such blockades have been
attempted by other nations, the United States have ever protested
against them and denied their validity. Their illegality is now
confessed on all hands. It was solemnly proclaimed in the
Declaration of Paris of 1856, to which most of the civilized
nations of the world have since adhered, and this principle is
nowhere more fully recognized than in our own country, though not a
party to that declaration.
What then was the blockade of the rebel states? The President's
proclamation of the 19th April, 1862, declared the intention of the
government "to set on foot a blockade of the ports" of those
states, "by posting a competent force so as to prevent the entrance
or exit of vessels." [
Footnote
1] And, in explanation of this proclamation, foreign
governments were
Page 72 U. S. 51
informed "that it was intended to blockade the whole coast from
the Chesapeake Bay to the Rio Grande." [
Footnote 2]
In determining the question whether this blockade was intended
to include the mouth of the Rio Grande, the treaty with Mexico,
[
Footnote 3] in relation to
that river, must be considered. It was stipulated in the 5th
article that the boundary line between the United States and Mexico
should commence in the Gulf, three leagues from land opposite the
mouth of the Rio Grande, and run northward with the middle of the
river. And in the 7th article it was further stipulated that the
navigation of the river should be free and common to the citizens
of both countries without interruption by either without the
consent of the other, even for the purpose of improving the
navigation.
The mouth of the Rio Grande was therefore, for half its width,
within Mexican territory, and for the purposes of navigation was
altogether as much Mexican as American. It is clear, therefore,
that nothing short of an express declaration by the Executive would
warrant us in ascribing to the government an intention to blockade
such a river in time of peace between the two Republics.
It is supposed that such a declaration is contained in the
President's proclamation of February 18, 1864, [
Footnote 4] which recites as matter of fact that
the port of Brownsville had been blockaded, and declares the
relaxation of the blockade. The argument is that Brownsville is
situated on the Texan bank of the Rio Grande, opposite Matamoras,
and that the recital in the proclamation that Brownsville had been
blockaded must therefore be regarded as equivalent to an assertion
that the mouth of the river was included in the blockade of the
coast. It would be difficult to avoid this inference if Brownsville
could only be blockaded by the blockade of the river. But that town
may be blockaded also by the blockade of the harbor of Brazos
Santiago and the Boca Chica, which were, without question, included
in the blockade
Page 72 U. S. 52
of the coast. Indeed, until within a year prior to the
proclamation, the port of entry for the district was not
Brownsville, but Point Isabel on that harbor, and in the usual
course, merchandise intended for Brownsville was entered at Point
Isabel, and taken by a short land conveyance to its
destination.
We know of no judicial precedent for extending a blockade by
construction. But there are precedents of great authority the other
way. We will cite one.
The
Frau Ilsabe [
Footnote 5] and her cargo were captured in 1799 for breach
of the British blockade of Holland. The voyage was from Hamburg to
Antwerp, and, of course, in its latter part, up the Scheldt.
Condemnation of the cargo was asked on the ground that the Scheldt
was blockaded by the blockade of Holland. But Sir W. Scott
said,
"Antwerp is certainly no part of Holland, and, with respect to
the Scheldt, it is not within the Dutch territory, but rather a
coterminous river, dividing Holland from the adjacent country."
This case is the more remarkable inasmuch as Antwerp is on the
right bank of the river, as is also the whole territory of Holland,
and though no part of that country was part of Flanders, then
equally with Holland combined with France in a war with Great
Britain. "It was just as lawful," as Sir W. Scott observed, "to
blockade the port of Flanders as those of Holland," and the Scheldt
might have been included in the blockade, but he would not hold it
necessarily included in the absence of an express declaration.
This case seems to be in point.
It is impossible to say, therefore, in the absence of an express
declaration to that effect, that it was the intention of the
government to blockade the mouth of the Rio Grande. And we are the
less inclined to say it, because we are not aware of any instance
in which a belligerent has attempted to blockade the mouth of a
river or harbor occupied on one side by neutrals, or in which such
a blockade has been recognized as valid by any court administering
the law of nations.
Page 72 U. S. 53
The only case which lends even apparent countenance to such a
doctrine, is that of
The Maria, [
Footnote 6] adjudged by Sir W. Scott in 1805. The cargo
in litigation had been conveyed from Bremen, through the Weser to
Varel, near the mouth of the Jahde, and there transshipped for
America. The mouth of the Weser was then blockaded, and Sir W.
Scott held that the commerce of Bremen, though neutral, could not
be carried on through the Weser. This, he admitted, was a great
inconvenience to the neutral city which had no other outlet to the
sea, but it was an incident of her situation and of war. It
happened in that case that a relaxation of the blockade in favor of
Bremen warranted restitution. Otherwise there can be no doubt that
the cargo would have been reluctantly condemned.
But it is an error to suppose this case an authority for an
American blockade of the Rio Grande, affecting the commerce of
Matamoras. Counsel were mistaken in the supposition that only one
bank of the Weser was occupied by the French, and that Bremen was
on the other. Both banks were in fact so held, and the blockade was
warranted by the hostile possession of both. The case would be in
point had both banks of the Rio Grande been in rebel
occupation.
Still less applicable to the present litigation is the case of
the
Zelden Rust, cited at the bar. That was not a case of
violation of blockade at all. It was a question of contraband,
depending on destination. The
Zelden Rust, a neutral
vessel, entered the Bay or River De Betancos, on one side of which
was Ferrol, and on the other Corunna. Counsel argued on the
supposition that Ferrol was a belligerent and Corunna a neutral
port, whereas both were belligerent, and the cargo was condemned on
the ground of actual or probable destination to Ferrol, which was a
port of naval equipment; though nominally destined to Corunna, also
a port of naval equipment, though not to the same extent as Ferrol.
There was no blockade of the bay or river or of either town.
It is unnecessary to examine other cases referred to by
Page 72 U. S. 54
counsel. It is sufficient to say that none of them support the
doctrine that a belligerent can blockade the mouth of a river,
occupied on one bank by neutrals with complete rights of
navigation.
We have no hesitation, therefore, in holding that the mouth of
the Rio Grande was not included in the blockade of the ports of the
rebel states, and that neutral commerce with Matamoras, except in
contraband, was entirely free.
If we had any doubt upon the subject, it would be removed by the
fact that it was the known and constant practice of the government
to grant clearances for Matamoras from New York, on condition of
giving bond that no supplies should be furnished to the rebels -- a
condition necessarily municipal in its nature and inapplicable to
any clearance for a foreign port. These clearances are incompatible
with the existence of the supposed blockade.
We come next to the question whether an ulterior destination to
the rebel region, which we now assume as proved, affected the cargo
of the
Peterhoff with liability to condemnation. We mean
the neutral cargo, reserving for the present the question of
contraband, and questions arising upon citizenship or nationality
of shippers.
It is an undoubted general principle, recognized by this Court
in the case of
The Bermuda, and in several other cases,
that an ulterior destination to a blockaded port will infect the
primary voyage to a neutral port with liability for intended
violation of blockade.
The question now is whether the same consequence will attend an
ulterior destination to a belligerent country by inland conveyance.
And upon this question the authorities seem quite clear.
During the blockade of Holland in 1799, goods belonging to
Prussian subjects were shipped from Edam, near Amsterdam, by inland
navigation to Emden, in Hanover, for transshipment to London.
Prussia and Hanover were neutral. The goods were captured on the
voyage from Emden, and the cause [
Footnote 7] came before the British Court of Admiralty
in
Page 72 U. S. 55
1801. It was held that the blockade did not affect the trade of
Holland carried on with neutrals by means of inland navigation. "It
was," said Sir William Scott, "a mere maritime blockade effected by
force operating only at sea." He admitted that such trade would
defeat, partially at least, the object of the blockade -- namely to
cripple the trade of Holland, but observed,
"If that is the consequence, all that can be said is that it is
an unavoidable consequence. It must be imputed to the nature of the
thing which will not admit a remedy of this species. The court
cannot on that ground take upon itself to say that a legal blockade
exists where no actual blockade can be applied. . . . It must be
presumed that this was foreseen by the blockading state, which
nevertheless thought proper to impose it to the extent to which it
was practicable."
The same principle governed the decision in the case of
The
Ocean, [
Footnote 8] made
also in 1801. At the time of her voyage Amsterdam was blockaded,
but the blockade had not been extended to the other ports of
Holland. Her cargo consisted partly or wholly of goods ordered by
American merchants from Amsterdam, and sent thence by inland
conveyance to Rotterdam, and there shipped to America. It was held
that the conveyance from Amsterdam to Rotterdam, being inland, was
not affected by the blockade, and the goods, which had been
captured, were restored.
These were cases of trade from a blockaded to a neutral country,
by means of inland navigation, to a neutral port or a port not
blockaded. The same principle was applied to trade from a neutral
to a blockaded country by inland conveyance from the neutral port
of primary destination to the blockaded port of ulterior
destination in the case of the
Jonge Pieter, [
Footnote 9] adjudged in 1801. Goods
belonging to neutrals going from London to Emden, with ulterior
destination by land or an interior canal navigation to Amsterdam,
were held not liable to seizure for violation of the blockade of
that port. The particular goods in that instance were condemned
Page 72 U. S. 56
upon evidence that they did not in fact belong to neutrals, but
to British merchants, engaged in unlawful trade with the enemy, but
the principle just stated was explicitly affirmed.
These cases fully recognize the lawfulness of neutral trade to
or from a blockaded country by inland navigation or transportation.
They assert principles without disregard of which it is impossible
to hold that inland trade from Matamoras, in Mexico, to Brownsville
or Galveston, in Texas, or from Brownsville or Galveston to
Matamoras, was affected by the blockade of the Texan coast.
And the general doctrines of international law lead irresistibly
to the same conclusion. We know of but two exceptions to the rule
of free trade by neutrals with belligerents: the first is that
there must be no violation of blockade or siege, and the second,
that there must be no conveyance of contraband to either
belligerent. And the question we are now considering is, "Was the
cargo of the
Peterhoff within the first of these
exceptions?" We have seen that Matamoras was not and could not be
blockaded, and it is manifest that there was not and could not be
any blockade of the Texan bank of the Rio Grande as against the
trade of Matamoras. No blockading vessel was in the river; nor
could any such vessel ascend the river, unless supported by a
competent military force on land.
The doctrine of
The Bermuda case, supposed by counsel
to have an important application to that before us, has in reality
no application at all. There is an obvious and broad line of
distinction between the cases. The
Bermuda and her cargo
were condemned because engaged in a voyage ostensibly for a
neutral, but in reality either directly or by substitution of
another vessel, for a blockaded port. The
Peterhoff was
destined for a neutral port with no ulterior destination for the
ship, or none by sea for the cargo to any blockaded place. In the
case of the
Bermuda, the cargo destined primarily for
Nassau could not reach its ulterior destination without violating
the blockade of the rebel ports; in the case before us the cargo,
destined primarily for Matamoras,
Page 72 U. S. 57
could reach an ulterior destination in Texas without violating
any blockade at all.
We must say, therefore, that trade, between London and
Matamoras, even with intent to supply, from Matamoras, goods to
Texas, violated no blockade, and cannot be declared unlawful.
Trade with a neutral port in immediate proximity to the
territory of one belligerent, is certainly very inconvenient to the
other. Such trade, with unrestricted inland commerce between such a
port and the enemy's territory, impairs undoubtedly and very
seriously impairs the value of a blockade of the enemy's coast. But
in cases such as that now in judgment, we administer the public law
of nations, and are not at liberty to inquire what is for the
particular advantage or disadvantage of our own or another country.
We must follow the lights of reason and the lessons of the masters
of international jurisprudence.
The remedy for inconveniences of the sort just mentioned is with
the political department of the government. In the particular
instance before us, the Texan bank of the Rio Grande might have
been occupied by the national forces, or with the consent of
Mexico, military possession might have been taken of Matamoras and
the Mexican bank below. In either course, Texan trade might have
been entirely cut off. Sufficient reasons, doubtless, prevailed
against the adoption of either. The inconvenience of either, at the
time, was doubtless supposed to outweigh any advantage that might
be expected from the interruption of the trade.
What has been said sufficiently indicates our judgment that the
ship and cargo are free from liability for violation of
blockade.
We come then to other questions.
Thus far we have not thought it necessary to discuss the
question of actual destination beyond Matamoras. Nor need we now
say more upon that general question than that we think it a fair
conclusion from the whole evidence that the cargo was to be
disposed of in Mexico or Texas as might be found most convenient
and profitable to the owners and
Page 72 U. S. 58
consignees, who were either at Matamoras or on board the ship.
Destination in this case becomes specially important only in
connection with the question of contraband.
And this brings us to the question: was any portion of the cargo
of the
Peterhoff contraband?
The classification of goods as contraband or not contraband has
much perplexed text writers and jurists. A strictly accurate and
satisfactory classification is perhaps impracticable, but that
which is best supported by American and English decisions may be
said to divide all merchandise into three classes. Of these
classes, the first consists of articles manufactured and primarily
and ordinarily used for military purposes in time of war; the
second, of articles which may be and are used for purposes of war
or peace, according to circumstances, and the third, or articles
exclusively used for peaceful purposes. [
Footnote 10] Merchandise of the first class, destined
to a belligerent country or places occupied by the army or navy of
a belligerent, is always contraband; merchandise of the second
class is contraband only when actually destined to the military or
naval use of a belligerent, while merchandise of the third class is
not contraband at all, though liable to seizure and condemnation
for violation of blockade or siege.
A considerable portion of the cargo of the
Peterhoff
was of the third class, and need not be further referred to. A
large portion, perhaps, was of the second class, but is not proved,
as we think, to have been actually destined to belligerent use, and
cannot therefore be treated as contraband. Another portion was, in
our judgment, of the first class, or, if of the second, destined
directly to the rebel military service. This portion of the cargo
consisted of the cases of artillery harness and of articles
described in the invoices as "men's army bluchers," "artillery
boots," and "government regulation gray blankets." These goods come
fairly under the description of goods primarily and ordinarily
used
Page 72 U. S. 59
for military purposes in time of war. They make part of the
necessary equipment of an army.
It is true that even these goods, if really intended for sale in
the market of Matamoras, would be free of liability, for contraband
may be transported by neutrals to a neutral port, if intended to
make part of its general stock in trade. But there is nothing in
the case which tends to convince us that such was their real
destination, while all the circumstances indicate that these
articles, at least, were destined for the use of the rebel forces
then occupying Brownsville, and other places in the vicinity.
And contraband merchandise is subject to a different rule in
respect to ulterior destination than that which applies to
merchandise not contraband. The latter is liable to capture only
when a violation of blockade is intended; the former when destined
to the hostile country, or to the actual military or naval use of
the enemy, whether blockaded or not. The trade of neutrals with
belligerents in articles not contraband is absolutely free unless
interrupted by blockade; the conveyance by neutrals to belligerents
of contraband articles is always unlawful, and such articles may
always be seized during transit by sea. Hence, while articles, not
contraband, might be sent to Matamoras and beyond to the rebel
region, where the communications were not interrupted by blockade,
articles of a contraband character, destined in fact to a state in
rebellion, or for the use of the rebel military forces, were liable
to capture though primarily destined to Matamoras.
We are obliged to conclude that the portion of the cargo which
we have characterized as contraband must be condemned.
And it is an established rule that the part of the cargo
belonging to the same owner as the contraband portion must share
its fate. This rule is well stated by Chancellor Kent thus:
"Contraband articles are infectious, as it is called, and
contaminate the whole cargo belonging to the same owners, and the
invoice of any particular article is not usually admitted to exempt
it from general confiscation. "
Page 72 U. S. 60
So much of the cargo of the
Peterhoff, therefore, as
actually belonged to the owner of the artillery harness, and the
other contraband goods, must be also condemned.
Two other questions remain to be disposed of.
The first of these relates to the political status of Redgate,
one of the owners of the cargo. It was insisted, in the argument
for the government, that this person was an enemy, and that the
merchandise owned by him was liable to capture and confiscation as
enemy's property.
It appears that he was by birth an Englishman; that he became a
citizen of the United States; that he resided in Texas as the
outbreak of the rebellion; made his escape; became a resident of
Matamoras; had been engaged in trade there, not wholly confined,
probably, to Mexico; and was on his return from England with a
large quantity of goods, only a small part of which, however, was
his own property, with the intention of establishing a mercantile
house in that place.
It has been held, by this Court, that persons residing in the
rebel states at any time during the civil war must be considered as
enemies, during such residence, without regard to their personal
sentiments or dispositions. [
Footnote 11]
But this has never held in respect to persons faithful to the
Union, who have escaped from those states, and have subsequently
resided in the loyal states, or in neutral countries. Such citizens
of the United States lost no rights as citizens by reason of
temporary and constrained residence in the rebellious portion of
the country.
And to this class Redgate seems to have belonged. He cannot,
therefore, be regarded as an enemy. If his property was liable to
seizure at all on account of his political character, it was as
property of a citizen of the United States, proceeding to a state
in insurrection. But we see no sufficient ground for distinguishing
that portion of the cargo owned by him, as to destination, from any
other portion.
Page 72 U. S. 61
The other question relates to costs and expenses.
Formerly conveyance of contraband subjected the ship to
forfeiture; but in more modern times, that consequence, in ordinary
cases, attaches only to the freight of the contraband merchandise.
That consequence only attaches in the present case.
But the fact of such conveyance may be properly taken into
consideration, with other circumstances, in determining the
question of costs and expenses.
It was the duty of the captain of the
Peterhoff, when
brought to by the
Vanderbilt, to send his papers on board,
if required. He refused to do so. The circumstances might well
excite suspicion. The captain of a merchant steamer like the
Peterhoff is not privileged from search by the fact that
he has a government mail on board; on the contrary, he is bound by
that circumstance to strict performance of neutral duties and to
special respect for belligerent rights.
The search led to the belief on the part of the officers of the
Vanderbilt that there was contraband on board, destined to
the enemy. This belief, it is now apparent, was warranted. It was
therefore the duty of the captors to bring the
Peterhoff
in for adjudication, and clearly they are not liable for the costs
and expenses of doing so.
On the other hand, not only was the captain in the wrong in the
refusal just mentioned, but it appears that papers were destroyed
on board his ship at the time of capture. Some papers were burned
by a passenger named Mohl, or by his directions. A package was also
thrown overboard by direction of the captain. This package is
variously described by the witnesses as a heavy sealed package
wrapped in loose paper; as a box of papers; and as a packet of
dispatches sealed up in canvas and weighted with lead. By the
captain it is represented as a package belonging to Mohl, and
containing a white powder. We are unable to credit this
representation. It is highly improbable that, under the
circumstances described by the captain, he would have thrown any
package overboard at such a time, and with the plain intent of
concealing it from the captors, if it contained
Page 72 U. S. 62
nothing likely, in his opinion, to prejudice the case of the
ship and cargo.
We must say that his conduct was inconsistent with the frankness
and good faith to which neutrals, engaged in a commerce open to
great suspicion, are most strongly bound. Considering the other
facts in the case, however, and the almost certain destination of
the ship to a neutral port, with a cargo, for the most part,
neutral in character and destination, we shall not extend the
effect of this conduct of the captain to condemnation, but we shall
decree payment of costs and expenses by the ship as a condition of
restitution.
Decree accordingly.
[
Footnote 1]
12 Stat. at Large 1259.
[
Footnote 2]
Lawrence's Wheaton 829, n.
[
Footnote 3]
9 Stat. at Large 926.
[
Footnote 4]
13 Stat. at Large 740.
[
Footnote 5]
4 Robinson 63.
[
Footnote 6]
6 Robinson 201.
[
Footnote 7]
The Stert, 4 Robinson 65.
[
Footnote 8]
The Stert, 3 Robinson 297.
[
Footnote 9]
4
id. 79.
[
Footnote 10]
Lawrence's Wheaton 772-6, note;
The
Commercen, 1 Wheat. 382; Dana's Wheaton 629, note;
Parsons' Mar.Law, 93-94.
[
Footnote 11]
Prize
Cases, 2 Black 666, 687-688;
The
Venice, 2 Wall. 258;
Mrs.
Alexander's Cotton, 2 Wall. 404.
