ON the 19th April, 1861-seven days after Fort Sumter was fired on, and near the beginning, therefore, of our late civil war the President of the United States issued a proclamation, by which he declared that an insurrection existed in certain of the Southern States, and that he deemed it advisable 'to set on foot a blockade of the ports within the said States.' 'For this purpose,' the proclamation proceeded, 'a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid.' 'If, therefore,' the document continued, 'with a view to violate such blockade, a vessel shall approach, or shall attempt to leave either of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her registry the fact and date of such warning; and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo as may be deemed advisable.'
Among the ports included with the proclamation was the port of Savannah, Georgia.
On the 9th September, 1861-that is to say, five months after the proclamation was published, and the English having knowledge of it-the British ship Admiral was chartered at Liverpool by the firm of W. & R. Wright, of the British province of New Brunswick, to proceed with a cargo of salt 'off the port of Savannah, and, if the blockade is raised, then to proceed into port, and deliver the salt according to her bill of lading; and if the blockade be not raised, then the ship to proceed to St. Johns, New Brunswick, and there deliver the same, with the usual despatch of the port.' The stipulated freight was thirty shillings per ton, if the cargo should be landed at Savannah, and fifteen shillings per ton, if landed at St. John's.
The owners' letter of instructions to the master, inclosing the charter-party, and referring to our civil war, ran thus:
'The inclosed charter with the Messrs. Wright will show you nature of the voyage. These gentlemen, like many others, hold the opinion that this unfortunate contest cannot last long, it being so obviously the interest of both parties to bring it to a close. This being so, and their being very wishful to have a cargo of pitch-pine from Savannah to St. John, so soon as the port is again opened, is our great reason for their making it a condition in taking the ship, that she should go off Savannah, so that, if possible, they might have the very first shipment of timber. Of course, in calling off, you will endeavor to meet the blockading ship (if the blockade is found to exist still), and then get the officer in command to indorse on your register that the ship has been warned off. This will be all that is necessary for us, as owners of the ship, to justify your departure for St John's, and there consigning the ship to the Messrs. Wright, to whom, in the meantime, we will write respecting you.
'You will distinctly understand, therefore, that you run no risk whatever with the ship, but rather endeavor to satisfy yourself as to the blockade, and then find out the man-of-war, report yourself, and get the register indorsed. You will, no doubt, speak some vessels when approaching the American coast, so as to ascertain exactly the state of matters, and be guided thereby in such way as not to infringe the blockade regulation.'
Under this charter-party and this letter of instructions, the Admiral sailed from Liverpool, upon a direct course for Savannah, on the 12th of September, 1861. Her certificate of clearance on board expressed St. John's, New Brunswick, as the sole port of her destination.
On the 11th December, 1861, when about thirty miles off Tybee Island-an island that lies near the entrance to Savannah-the vessel was boarded by a ship of the blockading squadron. At this time she was standing directly for the port of Savannah, the same being then under efficient blockade, and the boarded vessel having made no inquiry anywhere, after leaving Liverpool, as to whether the blockade existed. At this time Port Royal, one of the ports of the Southern coast, and some distance above Savannah, was in our possession, having been taken by our squadron on the 7th of November preceding. This fact, however, was not known to those aboard the Admiral. When hailed, she made no resistance. On being boarded she produced her clearance for St. John's (which was more than a thousand miles from the place she then was), along with her letter of instructions; and professed that, in coming to the region in which she was, her purpose was to ascertain whether the blockade was raised, as she supposed when leaving England that it would be; numerous predictions to that effect having been made before she left England, as also confident assertions that the Federal Government would find it impossible to blockade effectively the Southern coast, three thousand miles in length. She declared her readiness, on having a notice and warning indorsed on her registry-as the proclamation of the President contemplated that, in such a case as hers, notice and warning should be indorsed-to proceed to St. John's, in accordance with what her letter of instructions contemplated she should do, if she found the blockade existing, and had 'notice' and 'warning' indorsed accordingly.
This was not satisfactory to the blockading officers, and the vessel was brought in to Philadelphia, and proceeded on, with her cargo, in the District Court there, for prize. The vessel was claimed by a certain Fernie & Co., of Liverpool, England, and the cargo by W. & R. Wright, already mentioned as of St. John's, all the claimants being British subjects.
The District Court restored the cargo but condemned the vessel. From this condemnation Fernie & Co., her claimants, appealed to the Circuit Court;-Congress not having as yet required, as it did by the statute of 3d March, 1863, afterwards passed, that appeals in prize causes to this court should be made directly from the District Court.
In the court below it was argued in behalf of the claimants of the cargo, that the papers fully set out the voyage and intent of the parties; that the captain's conduct, when captured, was frank; no resistance, no attempt to falsify, and no suppression. That to ascertain what the intent was the case was to be tried and the conduct of the parties judged by the state of things in September, 1861; that the proclamation of the President did not say that the ports were blockaded, but that they would be; that this was all in the beginning of the rebellion; that it was then again and again declared that, within a short time, at farthest, the blockade would cease. Port Royal, as the event proved, had come to be in our possession at the time. It might as well, nearly, have been Savannah; but, as it was, events showed that giving 'days of grace' proportioned to the matter-allowing the margin proper-not holding parties too much ad pied de la lettre there was perhaps no such misconception, after all, by those who predicted, as eminent persons in our country notoriously did, that the rebellion would be an affair of sixty days, and that the Southern ports would soon be open. Neither was the English idea that the blockade would be ended, wrong as to result-though it was greatly so as to the cause by which the end would come. However, that was unimportant; the question being only as to the purity of intent, and the matter resting, therefore, on the fact of actual belief; a belief which certainly existed in England when the Admiral sailed; and at New Brunswick. Undoubtedly-it was said-in these questions intent is the matter to be inquired of. In Medeiros v. Hill, in the English Common Bench,  and where Sir Nicholas Tindal gave the judgment, the whole reasoning goes on the idea that where no actual entry or exit is shown, the intent is the matter to be inquired into; and, that while in the absence of express proof, any bad intent may be presumed, yet that where the true intent is shown none other than it can be inferred. And the stringency of a contrary rule was relaxed by Lord Stowell himself in some cases; as The Betsey.  Speaking of Americans during a blockade of European ports, he there said: 'I cannot think it unfair to say, that lying at such a distance, where they cannot have constant information of the state of the blockade, whether it continues or is relaxed, it is not unnatural that they should send their ships conjecturally.' He expressed like views in The Adelaide.  It was said finally that here the enterprise, whatever it was, was for the benefit of the cargo; that, in fact, the whole undertaking was a charter of the ship to dispose of this cargo and get another for the same owner, and that no case could be cited in which where the cargo-the whole object and intent of the voyage-was found to be honest, the ship (the mere carrier) was held. In this case both ship and crew were but the merest servants of the cargo; all of it belonging to one adventure and having but only one ultimate object.
The Circuit Court affirmed the decree of the district judge; the following being the opinion given by the presiding justice on the former bench:
Grier, J.: I agree with Chief Justice Tindal, in Medeiros v. Hill, 'that the mere act of sailing to a port which is blockadec at the time the voyage is 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 she 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 in her attempt to enter, she exhibits a clearance for St. John's, New Brunswick, a port she may be said to have passed, and a letter of instructions from the 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.
The clearance is the proper document to exhibit and disclose the intention of a 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 a 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 a ship's intended voyage, and to elude a blockade, the concealment of the truth must be considered as prima facie evidence of a fraudulent intention. The Admiral, with a full knowledge that her destined port is blockaded, takes a clearance for St. John's, and is found a thousand miles from the proper course to such port, in the act of entering a blockaded port; and when thus arrested, for the first time inquires whether the blockade has been 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 get their first information of it from the blockading vessels. Now, the primary destination of this vessel was 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, their clearance, in the exercise of good faith, should have made admission of the true primary destination of the vessel. If the truth had appeared on the face of this document, and if the master had 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 of breaking 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 intention 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 captor 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 a premeditated intention to break the blockade, the important right of blockade would be but a brutum fulmen in the hands of a belligerent. 'It would,' says Lord Stowell, in some case, '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 Medeiros v. Hill) had been by him 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.
I concur in the decree of the District Court.
On appeal from this decree of the Circuit Court the matter including apparently some query as to the right of appeal from the Circuit Court under the act of March 3, 1863,-came for review here. It was argued fully by Mr. Donahue for the appellants, and by Mr. Assistant Attorney-General Ashton (who had argued it also in the courts below), for the United States.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 8 Bingham, 231.
^2 1 Robinson, 334.
^3 3 Id. 283; see also The Little William. 1 Acton, 141, per Sir W. Grant
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