The Cheshire.

are so direct and positive to important statements made in Stone's testimony, that the court is bound to withhold belief from the latter.

'Thornton is also corroborated, and the averments of Stone are discredited by the ship's log. Stone says that the vessel lay off the port of Savannah two days, and tried to speak three or four vessels, but could not. The log discloses the fact that vessels were present "all around," and states no attempt to speak any of them; nor does it make any allusion to the least difficulty in communicating with either or all of them, had it been desired. The log shows that the Cheshire had been tacking off and on, from early dawn of Thursday, the 5th of December, until the afternoon of Saturday, the 7th, and was actually in a position, at the time testified to by Thornton, to make the attempt to enter the port at night; which attempt Thornton swears was made, and failed for want of sufficient depth of water.

Upon the testimony, and upon all the facts in the case, the conclusion is unavoidable that the ship, with full knowledge of the establishment and efficiency of the blockade of Savannah, was despatched upon a voyage to that port, with a fixed design to violate the blockade and there deliver her cargo, if practicable; and that the alleged purpose of making previous inquiry was a mere pretence, having no real existence. This result is conclusive as to all the alleged rights of the respective claimants, and involves the necessity of condemning both vessel and cargo.

Third. With the knowledge of the blockade possessed by the master and owners of the vessel and cargo, and on the facts in proof, could the ship lawfully go to the mouth of the port of Savannah, for the purpose of inquiring there as to the continued existence of the blockade?

Although the conclusion to which the evidence has directed me upon the preceding propositions renders it unnecessary to decide this point in the case, yet it is proper to say, whenever the question arises, that it is res adjudicata in this court. In the case of the Delta, not long since argued and determined, the point arose and was decided.

The authorities are clear and conclusive that a neutral vessel, with knowledge of the existence of a blockade, has no right to proceed to the very port blockaded, with the pretended or actual purpose of inquiring there as to its continuance. It is the policy of the law to inhibit neutral vessels from assuming such positions with reference to the blockaded port, as must, of necessity, greatly increase the watchful

The Hannah M. Johnson.

ness and activity of the naval force, and at the same time afford to the neutral vessel extraordinary facilities for a fraudulent evasion of the rights of a belligerent. It is well settled, that where the destination of a neutral vessel to a blockaded port is contingent upon inquiry, that inquiry must be made elsewhere than at the mouth of the port itself. In the case which I have cited in another connexion, (The Union, 1 Spinks' Prize Cases, 164,) Dr. Lushington says, that "where an excuse is set up that the vessel approached the blockaded port to make inquiry, it must be clearly proved by evidence perfectly satisfactory to the judgment of the court that she was ignorant of the fact of the blockade." Here no pretence of ignorance is set up; and, indeed, such pretence, in view of all the facts in proof, and especially of the violation of the blockade on the previous voyage, would be quite preposterous.

In the case of the Delta I considered, at length, the reasons upon which the rule is placed which prohibits neutral vessels from approaching the blockaded port to make inquiry, and reviewed the authorities which establish the doctrine. As the conclusion in this case is not exclusively or necessarily based upon this doctrine, I need only refer to what was there said, without reiteration.

The vessel and cargo, in this case, were, for the several reasons stated, lawfully captured, and a decree of condemnation must be entered accordingly.*

THE SCHOONER HANNAH M. JOHNSON AND CARGO.

The vessel having been restored, as belonging to loyal owners, and part of her cargo having been condemned as enemy property, captured on a voyage from New Orleans to New York during the war, the master of the vessel applied to be paid, out of the proceeds of the condemned cargo, the freight upon it for the voyage: Held that the application must be denied.

(Before BETTS, J., May, 1862.)

BETTS, J.: Portions of the cargo of the above vessel were condemned as prize by the court on the capture of the vessel and cargo. The vessel was acquitted and restored to the claimants, as belonging to loyal owners, and not having been employed by them in any unlawful acts against the government in withdrawing herself from the port of New Orleans and returning to her home port after the declaration of war by the seceded States against the United States.

* This decree was affirmed by the circuit court, on appeal, July 17, 1863. From the decree of the circuit court the claimants appealed to the Supreme Court, where the decree was affirmed March 5, 1866.

The Hannah M. Johnson.

Portions of the cargo shipped on board by traders domiciled in New Orleans and transmitted to New York were condemned and forfeited as being enemy property. The proceeds of that property remain in the registry of the court undistributed; and the petitioner, the master of the vessel, applies in that capacity for payment of freight out of the fund earned on the transportation of such part of the cargo on the voyage from New Orleans to New York.

The petition rests upon the assumption that the acquittal of the vessel from condemnation as lawful prize, necessarily admits also the legality of her employment in carrying the cargo, and her title to freight therefor. This is by no means a fact or a legal conclusion. The charges upon which the vessel and her lading were seized and tried were, that they belonged to the rebels, or, if neutral, had evaded the blockade of the port of New Orleans. The judgment of the court disaffirmed these charges, except in relation to that part of the cargo which was condemued as enemy property, and which was brought into this port. The vessel, in the transaction, did not act at all in the character of a neutral. If she had been, in fact, of neutral ownership, she would not have been permitted, under the rules of the prize law, to go into an enemy port and freight herself there pendente lite with enemy property. Such property is subject to capture at sea, though found in a friendly vessel destined to another friendly port. (1 Kent's Comm., 124; Halleck's International Law, 471; Wheat. on Cap., ch. 3, art. 9, 13.) This property would not, therefore, be exempt from capture on board a neutral vessel, had it been innocently freighted by the shipper, from one neutral port to another; and only on such condition would the carrier be entitled to recover freight from the captor for the carriage performed in its transportation. The undertaking of the master to transport the property from an enemy country was not, as to him, an innocent act. It was in aid of the commerce and trade of an enemy, and the rules of public law interdict as illegal all such transactions by subjects of a belligerent nation with those of its enemy. (Wheat. on International Law, 357; The Hoop, 1 Ch. Rob., 196.)

The court restored the vessel on this capture, on the ground that taking her from the port after the commencement of the war and the imposition of the blockade was not a proceeding for the benefit of the enemy, but was a withdrawal of home property by loyal citizens, in which matter the enemy had no beneficial interest. The principle in respect to enemy property laden in the vessel, and transported for the benefit of enemy owners, is entirely different. Not only is such prop

The J. G. McNeil.

erty liable to confiscation, but the interference of the master, in aiding its conveyance from an enemy port for the benefit of its owner, is wrongful and illegal, and in violation of the rights of his government in the property, and of his own duties and obligations as a subject during war. This doctrine is declared and enforced most explicitly and inflexibly by the highest authorities in America and Europe. (1 Kent's Comm., 55, 66, 68; Wheat. on Captures, 220; 3 Phillimore's International Law, sec. 70; The Sally, 8 Cranch, 382; The Rapid, Id., 155; Wheat. Inter. Law, part 4, ch. 1, arts. 9, 13; The Hoop, 1 Ch., Rob. 196.) The petitioner is disqualified by his own act, in dereliction of his duties as an American citizen, in aiding and promoting the trade and commerce of the enemy, flagrante bello, from deriving any advantage against the government through his unlawful acts and agency. His application, therefore, to be allowed freight for the carriage of enemy property on the voyage in question, with knowledge of the character of the property and of the existence of the war, cannot be entertained.

The motion must be denied.

THE SCHOONER J. G. MCNEIL AND CARGO.

Vessel and cargo condemned as enemy property.

(Before BETTS, J., May, 1862.)

BETTS, J.: This vessel and cargo were captured off Matagorda, in the Gulf of Mexico, half a mile from the shore, January 25, 1862. Her registry and ship's papers were given to her by the government of the Confederate States at Indianola, Texas, where her owner and master reside. She sailed under the license and flag of the Confederate States, and had no other colors. She was captured by the United States man-of-war Arthur. The vessel was from Vera Cruz, destined to Indianola, with a cargo of coffee and tobacco, owned by residents of the latter place. The master knew of the proclamation of the President placing the southern ports under blockade, but had no other direct notice of the blockade. The cargo was laden on board at Vera Cruz about the Sth of January, last.

The prize was taken to Ship island, was pronounced unseaworthy for navigation north by Flag-Officer McKean, and was appropriated to the use of the United States government, her value having been appraised.

The Pioneer.

The evidence being clear and satisfactory that the vessel and cargo were the property of owners domiciled at Indianola, and the marshal having returned to the warrant of attachment due notice of the arrest of the property and of the proceedings in court against it as prize, its condemnation and forfeiture is ordered, the appraised value of the vessel to be accounted for in court to the credit of the cap

tors.

THE SLOOP PIONEER AND CARGO.

Vessel and cargo condemned as enemy property, and for an attempt to violate the blockade. (Before BETTS, J., May, 1862.)

BETTS, J.: This vessel and cargo were captured, as prize, on the 20th of February, 1862, at the mouth of the Rio Grande, Texas, by the United States ship-of-war Portsmouth. It being deemed unsafe to send the vessel into port for adjudication, she was destroyed by order of the commanding officer, and the cargo was transmitted to this port by another vessel, and was here seized and proceeded against by due process of court, regular notice having been given to all parties interested, according to law.

The master of the vessel testified that he was present at her capture; that she was sunk, after the arrest, as being unseaworthy, and that her cargo was placed on the Rhode Island and brought to New York. The prize sailed under the confederate flag, and had no other, and was cleared by the confederate custom-house at New Orleans. Her cargo was tobacco, and she was cleared with it from New Orleans, where she was owned, for Brownsville, Texas. The cargo was owned and laden on board at New Orleans, and was enemy property. The owner of the vessel was also owner of part or the whole of the cargo. All persons on board the vessel knew, when the attempt was made to enter the port of Brownsville, that it was in a state of blockade by the United States, and had been from the time the blockade was imposed. No evidence is produced that the owners of the vessel or cargo had warning or particular notice that the port was then blockaded. The vessel was arrested two or three miles from the Texas shore while attempting to enter the port of Brownsville. The purpose of the vessel to go from New Orleans to Brownsville, notwithstanding the blockade, is clearly shown to have been entertained by the owners of the cargo and vessel from the time the voyage was undertaken.