The Ella Warley.

to contest the cause in court, and insisted that the suit on trial was without lawful defence by any party in interest.

A provisional register of the vessel, which was built at Baltimore, was issued to Edwin Charles Adderly, at Nassau, N. P., December 18, 1861, and was found on the vessel when captured. There were also found a clearance for St. John, April 24, 1862, stating the cargo on board; bills of lading and letters of instructions to their agent, by Adderly & Co., in respect to portions of the cargo, and by other shippers in respect to other portions of it, addressed to the port of St. John; and a roll of the ship's company and shipping articles, from Charleston, S. C., to Nassau, for a voyage from the former port to the latter, apparently in the months of March and April, 1862, preceding the present voyage; and those papers were produced in proof from the prize.

Numerous leaves and pages of the log were found to have been cut or torn from the front part of the book, leaving no other entry than an obscure heading to the second remaining leaf, seeming to import "Str. Ella, from Nassau, bound to St. John." The front face or binding of the book is marked, in handwriting and print, "Nassau, N. P.-Logbook of Str. Ella Warley, Capt. Alexander Swasey." This condition of the log-book, evidently a designed mutilation, in fraud of the rights of the libellants, under the law of nations, will of itself afford adequate cause for the condemnation of the vessel and cargo, if the vessel was seized under circumstances which placed it in her power to violate a blockaded port, unless those suspicious appearances are clearly and satisfactorily explained by the proofs. (The Two Brothers, 1 Ch. Rob., 131; The Pizarro, 2 Wheat., 227.)

Swasey, the master of the vessel, was a citizen of Charleston, S. C., and resided there with his family. The vessel was captured about the 25th of April, and about in latitude 27° 40′ north, and longitude 76° 50′ west, as the master testifies, according to his recollection. He says, on his examination, that the vessel under his command sailed with a cargo of cotton, in December or January last, from Charleston to Nassau; there took in a return cargo and carried it to Charleston; discharged it there, then took in another cargo of cotton and went again to Nassau, and discharged it there; and received on board, at Havana, part of the lading, and afterwards filled up at Nassau, making cargo seized with the vessel; that this cargo was consigned to W. R. Wright, at St. John, whom he, the master, does not know; that the cargo taken by the vessel from Nassau to Charleston was also

up

the

The Ella Warley.

consigned to Wright, but was taken possession of in Charleston by Lafitte, who said that Wright was his agent; that he, the master, does not know that this cargo was to be delivered to Lafitte in the same way, and cannot swear it was not to be; and that he knew that the port of Charleston and other southern ports were blockaded, and also knew so on the former voyages he made to and from the same. The mate testifies that he heard on shore at Nassau, before commencing the voyage, that the vessel was to run the blockade of the southern ports, and he believes that the vessel would have run into a blockaded port if she could have prosecuted her voyage. The chief engineer is of the same impression. He does not know where the vessel was bound, but he understood she was cleared for St. John. The first assistant engineer testifies to the same effect. He says that the master told him the vessel was bound for St. John, but that all on board had good reason to believe they were going to Charleston. The second assistant engineer says that, on the previous voyage to Charleston from Nassau, the steamer was cleared and bound, as in this instance, for St. John, N. B. Harrison, a fireman, testifies that he was told by the master and others that the vessel was bound to St. John; that that was the only reason he had for thinking her destination was for St. John; that the vessel was laden with cargo much needed in the southern States, and the men were talking about their families in Charleston, and from that he sometimes thought she was going to a southern port.

From a review of the evidence, written and oral, I think there results a violent suspicion that the voyage in question was set on foot and prosecuted mala fide, with intent to make a return voyage directly to the port of Charleston, and that the vessel was, when captured, making the attempt to fulfil that purpose. She was running without any log, leaving the coverings of the book to show its mutilation and her destination, after the voyage had commenced. The preparatory surroundings were in exact similitude to those employed by the same owner and master on a previous voyage of this vessel to Charleston from Nassau. The evidence does not establish a bona fide purchase of the vessel by the neutral claimant. He shows no valid bill of sale given in support of the title, and he replaced the title in the hands of the vendor's agent, with power to resell, under conditions indicating that the consideration money stipulated on this purchase was not to pass from the present claimant, but was to remain substantially with the alleged purchaser, and might be reclaimed by him on returning the vessel to the assumed vendor. I think, also, that this voyage on which

The John Gilpin.

the capture was made was designed to be, and was substantially, the next voyage after the one on which the vessel escaped by violating the blockade of Charleston, as this voyage did not begin from Havana, where the vessel touched, but at Nassau. This case, therefore, is fairly within prior decisions of this court, (Upton's Prize Law, 288 to 291,) founded on doctrines sanctioned by Sir William Scott. (The Christiansberg, 6 Ch. Rob., 376; The Randers Bye, Id., 382, note.) A decree of condemnation and forfeiture of the vessel and cargo is ordered.*

THE SCHOONER JOHN GILPIN AND CARGO.

A claim and answer in a prize case should be confined to the issue of prize or no prize. The failure to bring in any one of the officers or crew of the vessel but the mate excused. The offence of attempting to violate a legal blockade is not consummated merely by the existence of a purpose to commit the act, but the vessel must be intercepted while endeavoring to carry out the guilty design.

However earnestly the criminal intent may have been entertained and proceeded upon for a time, if it be really given up before the arrest the property is not liable to confiscation because of the previous wrongful purpose.

A vessel setting out with the object of evading a legal blockade will be relieved from the penalty following her detection in seemingly adhering to that purpose in her doings, only upon clear evidence that at the time of capture the fraudulent and guilty intention had been wholly relinquished.

It is not the mere mental design which the law punishes, but the overt act in starting for or proeeeding towards the prohibited port with the knowledge that it is blockaded, and continuing on that course up to the arrest.

In this case the vessel and cargo were not in the act of attempting to violate the blockade when captured.

The cargo was the product of the enemy country, and was procured by purchase in an enemy port during the war by citizens of a loyal State.

Trade of every description with an enemy during war is, by the law of nations, inhibited to the subjects of the nation prosecuting the war.

By statute (12 U. S. Stat. at Large, 257) all commercial intercourse between citizens of the loyal States and those belonging to the insurrectionary States is unlawful, and the property acquired through such intercourse is subject to forfeiture.

Cargo condemned.

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

BETTS, J.: This vessel and cargo were captured, as prize, April 25, 1862, in the Mississippi river, opposite the city of New Orleans, by the United States gunboat Katahdin, and were brought thence to this port for adjudication. They were here libelled September 16, 1862, and the monition and attachment issued thereon were returned duly served October 7 thereafter. On the 26th of September, 1862, a claim to the cargo, consisting of 318 bales of cotton, was interposed by Nahum Stetson, treasurer of the Weymouth Iron Company, a corporation established by the laws of the State of Massachusetts, averring

* This decree was affirmed, on appeal, by the circuit court, July 17 1863,

The John Gilpin.

that the company were owners of the cotton at the time of its attachment, with which claim a deposition was offered, as a test affidavit, and filed on the return day of the monition, October 7. On the same day Nathaniel H. Babson and six other persons filed a claim and answer to the libel, alleging that they were citizens of Massachusetts and owners of the vessel.

Those claims and answers sufficiently denied the legality of the capture of the vessel and cargo as prize, and, in addition to that issue, attempted to make evidence, by allegations therein, of various matters of excuse and defence against the charges in the libel, extraneous and independent of the issue of prize or no prize. This mode of pleading is faulty, and not allowable as a primary defence in a prize suit. The point has been largely considered in this court in repeated cases recently before the court, and the decisions fix the practice which must prevail here until it is changed by a contrary determination of the appellate courts. (The Delta; The Empress.)

No papers relating to the vessel or cargo were found on board of her when she was captured, or have been brought into this port. The evidence embraces only the examination of the mate, who was on board at the capture, and was afterwards brought with the vessel to this district. The assistant district attorney, by affidavit on file, sufficiently excuses the failure to produce other members of the crew, they having been dispersed in the general disturbance attending the capture of the city of New Orleans by the United States naval forces, at the same time with the seizure of this vessel, and the apprehension and impris onment of the master of the vessel as a notorious rebel, by the military authority. This case is thus brought within the authority of the preceding case of the Elizabeth and cargo, and the usages under the continental and British practice in prize suits.

The mate testifies, on his preparatory examination, that he resides in New Orleans, and his family in the State of Louisiana; that he was present at the capture of the vessel at the wharf of Algiers, in the Mississippi, opposite New Orleans; that he heard the captain say that Dundridge, who resides in New Orleans, was owner of the vessel; that Forsyth, the master of the vessel, resides in New Orleans; that six persons were on board when the vessel was captured; that eight, including a supercargo, composed the ship's company, all of whom came on board at New Orleans; that he, the witness, was first mate when the vessel was taken; that he does not know the exact port to which she was destined when she left New Orleans; that he was told by her master it was some port of the northern States; that she was

The John Gilpin.

laden with cotton and staves; that he does not know that she cleared from New Orleans, and does not know the owner of the cargo; and that he, the witness, and the master knew that New Orleans was under. blockade before the vessel left or attempted to leave that port. The vessel left New Orleans on the 15th or 16th of February last, and went down the river several miles below Forts Jackson and St. Philip and there anchored for several days, when the commander of the forts ordered the vessel back above the forts, and the design to get out was given up. The supercargo returned to New Orleans. The crew con-, sented, at the master's request, to stay with the vessel until the blockade should be raised. No further attempt was made to get out of New Orleans.

The court has had occasion, in more than one previous instance, to advert to the rule of the prize law which subjects neutral property to capture when attempting to violate a legal blockade. The offence is not consummated merely by the existence of a purpose to commit the act, but the vessel must be intercepted while endeavoring to carry out the guilty design. However earnestly the criminal intent may have been entertained and proceeded upon for a time, if it be really given up before the arrest, the property is not liable to confiscation because of the previous wrongful purpose. This is wholly a question of evidence, and, no doubt, a vessel setting out with the object of evading a legal blockade will be relieved from the penalty following her detection in seemingly adhering to that purpose in her doings, only upon clear evidence that at the time of capture the fraudulent and guilty intention had been wholly relinquished. (1 Kent's Comm., 147.) It is not the mere mental design which the law punishes, but the overt act, in starting for or proceeding towards the prohibited port, with the knowledge that it is blockaded, and continuing on that course up to the arrest. (Halleck's International Law, ch. 23, sec. 23, and citations.) Had this capture been made whilst the vessel was proceeding down the river from New Orleans, the vessel and cargo would have been, within the meaning of the rule, guilty of an overt act. They stopped, however, before leaving the port, waiting for authority to make the contemplated voyage, and returned to the place of departure, where they remained until arrested as prize. The cause of the seizure was not that the vessel and cargo were in the act of evading the blockade, but was a cause not connected with that offence. I think, therefore, that on the facts and the law of the case that charge is not sufficiently proved to demand the condemnation of the vessel or cargo.