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This position, although it would substitute a conditional immunity for that absolute immunity which the words of the proclamation would seem to import, is nevertheless not without support, in view of the uniform decisions of prize courts, in. flicting the penalty of confiscation upon vessels convicted of deceptive practices upon belligerent rights, by simulated papers presenting a false destination, by mutilation of documents, by clandestine approach, and by false pretences of stress of weather, want of provisions, and the like, as an excuse for the attempt to enter an interdicted port, and even declining to allow further proof of the innocence and neutral character of the shipper and owner of cargo, captured on board such vessel.
If this position be well taken, then the question of construction of the proclamation of blockade becomes of inferior interest and consequence, inasmuch as by far the greater portion, if not all the cases of capture, under its provisions, have devel. oped convincing proofs against the vessels, of dishonest and fraudulent practices, in some of the particulars, for which the penalty of confiscation is decreed by the authoritative decisions.
The subject of the right of a neutral vessel, in time of war, having previous knowledge of the existence of a belligerent blockade, to proceed upon a voyage direct to the port blockaded, with instructions, and the design, in fact, to inquire at the port itself, whether the blockade is still in force, was very ably discussed by the learned judge of the Circuit Court of the United States for the Third Circuit, in the case of The Admiral, on appeal be
fore him from a final decree of condemnation rendered by the District Court of the United States for the Eastern District of Pennsylvania.
His conclusions, as will be seen, are in accordance with the well-settled doctrine of the English prize courts, and with the recent decisions of the several District Courts of the United States.
The learned judge says:
“I agree with C. J. Tindal, in Medeiros vs. Ilin, opinion of Mr. 8 Bing., 231, that the mere act of sailing to a port which is blockaded at the time the voyage 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 Ilalifar, 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 this 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 on her attempt to enter, she exhibits a clearance for St. Johns, New Brunswick (a port she may be said to have passed), and a letter of instruction from her 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 the ship. The clear- : ance, 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 the 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 the ship's intended voyage, and to elude a blockade, the concealment of the truth must be considered as primâ facie evidence of fraudulent intention.
“The Admiral, with full knowledge that her destined port is blockaded, takes a clearance for St. Johns, and is found a thousand miles from the proper course to such a port, and in the act of entering the blockaded port, and when thus arrested, for the first time, inquires if such blockade is 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 knowl. edge of the blockade, and got their first intimation of it from the blockading vessels.
“Now, the primary destination of this vessel is 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, then the 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 to violate 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, intentions 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 captain 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 any 'premeditated intention to violate the blockade,' the important right of blockade would be a brutum fulmen, in the hands of a belligerent.
a “. It would,' says Lord Stowell,' 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 gen. eral rule established by this judge (but overruled in Madieros vs. Hill) has been relaxed as to Amer. ican 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.”
With scarcely an exception, the British vessels which have been captured, for an attempted or intended violation of the belligerent rights of the United States, during the existing war, have been furnished with documents, of a similar deceptive character, to those found on board the Admiral.
The neutral traders of Great Britain have been permitted to make use of the port of Nassau, as the port of clearance and departure of their vessels in. numerable, laden with arms, munitions of war, and supplies for the insurgents in the southern states.
If these vessels have been destined for a gulf port blockaded, their papers, concealing that fact, represent the port of destination to be Matamoras or Tampico. If the design has been to violate the blockade of an Atlantic port, the vessel was documented for St. John's or Halifax.
The ingenuity of these traders by no means equals their cupidity—and therefore, in every case of cap