THE BRIG AMY WARWICK.
THE SCHOONER CRENSHAW.
THE BARQUE HIAWATHA.
THE SCHOONER BRILLIANTE.
December Term, 1862
[67 U.S. 635, 636] These were cases in which the vessels named, together with their cargoes, were severally captured and brought in as prizes by public ships of the United States. The libels were filed by [67 U.S. 635, 637] the proper District Attorneys, on behalf of the United States and on behalf of the officers and crews of the ships, by which the captures were respectively made. In each case the District Court pronounced a decree of condemnation, from which the claimants took an appeal.
The Amy Warwick was a merchant vessel, and belonged to Richmond. Her registered owners were David and William Currie, Abraham Warwick and George W. Allen, who resided at that place. Previous to her capture she had made a voyage from New York to Richmond, and thence to Rio de Janeiro, Brazil. At the last named port she shipped a cargo of coffee, 5,100 bags, to be delivered at New York, Philadelphia, Baltimore or Richmond, according to the orders which the master would receive at Hampton Roads. She was on her voyage from Rio to Hampton Roads and off Cape Henry when she was captured (July 10th, 1861) by the Quaker City. At the time of the capture the barque was sailing under American colors, and her commander was ignorant of the war. The Quaker City carried her into Boston, where she was libelled as enemy's property. The claimants of the vessel were the persons already named as owners. James Dunlap, Robert Edmonds, John L. Phipps, and Charles Brown claimed the cargo. The claimants in their several answers denied any hostility on their part to the Government or Laws of the United States, averred that the master was ignorant of any blockade, embargo or other interdiction of commerce with the ports of Virginia, and asserted generally that the capture was unlawful.
The Crenshaw was captured by the United States Steamer Star, at the mouth of James River, on the 17th of May, 1861. She was bound for Liverpool with a cargo of tobacco from Richmond, and was owned by David and William Currie, who admitted the existence of an insurrection in Virginia against the Laws and Government of the United States, but averred that they were innocent of it. The claimants of the cargo made similar answers, and all the claimants asserted that they had no such notice of the blockade as rendered the vessel or cargo liable to seizure for leaving the port of Richmond at the time [67 U.S. 635, 638] when the voyage was commenced. She was condemned as prize on the ground that she had broken, or was attempting to break, the blockade at the time of her capture.
The Hiawatha was a British barque, and was on her voyage from Richmond to Liverpool with a cargo of tobacco. She left Richmond on the 17th of May, 1861, and was captured in Hampton Roads on the 20th by the Minnesota, and taken to New York. Her owners were Miller, Massman & Co., of Liverpool, who denied her liability to capture and condemnation on the ground that no sufficient notice had been given of the blockade. The claimants of the cargo put their right to restoration upon a similar basis.
The Brilliante was a Mexican schooner, owned by Rafael Preciat and Julian Gual, residents of Campeche. She had on board a cargo of flour, part of which was owned by the owners of the vessel, and part by the Senores Ybana & Donde, who were also Mexican citizens. She had a regular clearance at Campeche for New Orleans, and had made the voyage between those ports. At New Orleans she took in her cargo of flour, part to be delivered at Sisal and part at Campeche, and took a clearance for both those places. On her homeward voyage she anchored in Biloxi Bay, intending to communicate with some vessel of the blo kading fleet and get a permit to go to sea, and while so at anchor she was taken by two boats sent off from the Massachusetts. She was carried into Key West, where the legal proceedings against her were prosecuted in the District Court of the United States for the District of Florida.
The minuter circumstances of each case, and the points of fact, as well as law, on which all the cases turned, in this Court and in the Court below, are set forth with such precision in the opinions of both Mr. Justice Grier and Mr. Justice Nelson, that more than the brief narrative above given does not seem to be necessary.
The case of the Amy Warwick was argued by Mr. Dana, of Massachusetts, for Libellants, and by Mr. Bangs, of Massachusetts, for Claimants. [67 U.S. 635, 639] The Crenshaw, by Mr. Eames, of Washington City, for Libellants, and by Messrs. Lord, Edwards, and Donohue, of New York, for Claimants.
The Hiawatha, by Mr. Evarts and Mr. Sedgwick, of New York, for Libellants, and by Mr. Edwards, of New York, for Claimants.
The Brilliante, by Mr. Eames, of Washington City, for Libellants, and by Mr. Carlisle, of Washington City, for Claimants.
One argument on each side is all that can be given. Those of Mr. Dana and Mr. Carlisle have been selected, not for any reason which implies that the Reporter has presumed to pronounce judgment upon their merits as compared with those of the other distinguished counsel, but because they came to his hands in a form which relieved him of the labor which the others would have cost to re-write and condense them.
Mr. Carlisle. The Brilliante is a regularly registered Mexican ship. Her principal owner, although a Mexican citizen by birth, had been naturalized in the United States. He was, before and at the time of the seizure, the United States Consul at the port of Campeche, a port on the coast of Mexico. The vessel was seized by the United States ship Massachusetts, in Biloxi Bay, north of Ship Island, between Pas Cr etien and Pascagoula Bay, on the 23d of June, 1861
She had sailed from New Orleans, with a cargo of six hundred barrels of flour, put on board there about the 16th of that month, four hundred barrels for the house of the claimant, (American Consul at Campeche,) and the residue for the Mexican house of Ybana & Donde, at Sisal, also a port on the coast of Mexico; to which houses it was respectively consigned, they being owners of the same, in these proportions.
I. There was no actual breach. The question is of intent.
At the time of the seizure, the Brilliante was lying at anchor in Biloxi Bay, and had so lain at anchor twenty-four hours or more. 'She came out from New Orleans and anchored in [67 U.S. 635, 640] Biloxi Bay, so as to be able to communicate with one of the blockading vessels, but did not see any vessel of war. On the next day, on which the vessel was seized, the sea was too rough to go on board the Massachusetts, which was lying in sight.'
Mr. Preciat, the claimant, 'wished to go on board one of the blockading vessels, to see if he could get a permit to go out to sea; otherwise he intended to have returned with the vessel to New Orleans.' ( Deposition of the said Preciat, taken in preparatorio, Record, p. 11.) He was returning to Campeche, 'to attend to the duties of his office (U. S. Consul,) and business generally.' On going to New Orleans, he had a letter from the Commander of the Brooklyn, one of the blockading squadron, to the Commander of the Niagara, another of them, forwarding him to Mobile, where his son was at school, and whom he desired to take home. The passengers and crew mutinied, and refused to go to Mobile. The mate, taking control, steered for New Orleans, where the vessel arrived and the crew were discharged. These facts appear from the declarations in preparatorio. The libel and decree are exclusively founded on the alleged attempt to leave New Orleans. The claimant had a right to except that his application to return, althoug sailing from New Orleans, would have been granted; or, if not granted, that he would have been allowed the option of going back to New Orleans; which he declares, on his examination, was his intention, if not permitted to return to Campeche. He swears that he had no intention to violate the blockade. There is nothing to contradict him, but everything corroborates his declaration. He was at anchor twenty-four hours, and a considerable portion of that time in sight of one of the blockading vessels, which the evidence shows he could not safely attempt to reach in consequence of the state of the weather. Before that period there is nothing to show that he might not have run the blockade safely; nor is there any reason suggested or supposable why he cast anchor, except that he had no intent to violate the blockade. His public character as United States Consul, and the facts before referred to, go in confirmation of this.
But chiefly, the terms of the President's proclamation instituting [67 U.S. 635, 641] this so-called blockade, are important to be considered upon this question of intent. The condition of things was unprecedented. From the nature and structure of our peculiar system of government, it could have had no precedent. The co-existence of Federal and State sovereignties, and the double allegiance of the people of the States, which no statesman or lawyer has doubted till now, and which this Court has repeatedly recognized as lying at the foundation of some of its most important decisions; the delegation of special and limited powers to the Federal Government, with the express reservation of all other powers 'to the States and the people thereof' who created the Union and established the Constitution; the powers proposed to be granted and which were refused, and the general course of the debates on the constitution; all concurred in presenting this to the President as a case of the first impression. Assuming the power to close the ports of the seceded States, he evidently did so with doubt and hesitation. If the power be conceded to him, it cannot be denied that he might modify the strict law of blockade, and impose a qualified interruption of commerce. He might well have doubted whether, under the Constitution which he had sworn to support, a state of war could exist between a State, or States, and the Federal Union; whether, when it ceased to be insurrection, and became the formal and deliberate act of State sovereignty, his executive powers extended to such an exigency. Certainly, the words of the Acts of Congress authorizing him to use the navy did not embrace such a case. It was not quite certain that it had assumed this imposing shape. The President, so late as his message of July, was confident that it had not. He believed that the State sovereignties had been usurped by discontented leaders and a factious and inconsiderable minority. With the information laid before him, he declared that these seceded States were full of people devoted to the Union. Well, therefore, might he hesitate to exercise, even if he supposed himself to possess, the power of declaring or 'recognizing' a state of war. His powers in cases of insurrection or invasion were clear and undoubted. He had the army, the navy, and the militia of [67 U.S. 635, 642] the States (the United States having no militia except in the federal territories) confided to his command, sub modo.
But insurrection is not war; and invasion is not war. The Constitution expressly distinguishes them, and treats them as wholly different subjects. But this belongs to a subsequent question in the argument. It is now referred to as bearing upon the construction of the proclamation, and consequently upon the question of intent to break a blockade. It is true that the proclamation calls it a blockade. But the message speaks of it as proceedings 'in the nature of a blockade.' And the proclamation itself, by its terms and provisions, substantially conforms to the latter description. It founds itself upon the existence of 'an insurrection.' It ronounces the disturbance to be by 'a combination of persons.' It proceeds upon the Acts of Congress provided for ' insurrections' by 'combinations of persons.' It declares that the executive measures are provisional and temporary only, 'until Congress shall have assembled and deliberated upon the said unlawful proceedings.' It requires the seceded States to disperse, and return peaceably 'to their respective place of abode in twenty days.'
'These 'combinations of persons,' and these 'unlawful proceedings,' are not at all recognized as presenting a case for belligerent rights and obligations. Naturally and prudently, the President did not assume to proclaim a strict blockade, with the extreme rights which obtain between belligerents, and with the corresponding rights of neutrals. He first called out the militia of the States, as such. He then used the army and the navy, under the Act of 1807. But he knew that this was not war. It was the suppression of insurrection. Consequently, in this use of the navy, he did not contemplate capture jure belli. Long after the period involved in this case, he maintained to all the civilized world, (see Mr. Seward's diplomatic correspondence, 1861,) that to attribute anything of belligerent right to these 'combinations of persons' and these 'unlawful proceedings,' was an outrage and an offence to the United States. In effect, his position was that it was purely a municipal question; and, [67 U.S. 635, 643] of course, there could be no blockade, in the international sense, and no capture jure belli.
Accordingly, the proclamation threatens not the regular proceedings of a prize Court, but 'such proceedings as may be deemed advisable.' And these proceedings are to follow upon a seizure to be made in the precise and only case where a vessel shall have attempted to enter or leave a port, and shall have been 'duly warned by the commander of one of the blockading vessels, who will endorse on her register the fact and date of such warning; and if the same vessel shall again attempt to enter or to leave,' & c., then these undescribed proceeding shall take place.
Under these circumstances, upon the question of intent, it is submitted that the case is with the claimant.
But II. The terms of the proclamation, assuming it to have intended a blockade, (jure belli,) excuse this vessel and cargo. The only authority necessary to be referred to here is the case of Md. Ins. Co. vs. Woods, (6 Cr., 49,) decided by this Court. It is to be argued from, a fortiori. The qualified blockade, by a belligerent, was recognized. Notoriety of blockade in fact, and perhaps actual knowledge, are admitted in that case. But because a special warning off was provided for in this notice of the blockade, restoration was decreed. This Court said there, that they could not perceive the reasons for this modification. Nevertheless, they held it imperative. Here, the reasons are apparent.
III. This seizure took place before Congress had convened to act in the premises. It was made during that period when the President, casting about among doubtful expedients, had used the navy, under the Acts of Congress for suppressing insurrection and repelling invasion, and had used this force 'in the nature of a blockade.' It is denied that during this period there was WAR, or that the rights and obligations of war, either under the municipal or international law, had arisen. Of consequence, blockade and the prize jurisdiction could not have existed. The question here is, how can the United States, under the Constitution, be involved in war? And, to admit for a moment a [67 U.S. 635, 644] modern question, who has the power to accept, recognize, or admit a state of war, so that such a status will affect the people of the States, and foreign nations and their subjects, with the consequences of war, municipally and internationally? How are treaties suspended or abrogated? When are citizens residing in the several States placed in the condition of alien enemies, or f persons (nolens volens) identified with the Territory of a public enemy, in a state of public war, whether foreign or civil?
And, again, if this was not war, in any legal sense, who has the power of closing a port of entry of the United States against the trade of a foreign nation, to whom all ports of entry are open by treaty? This vessel and her cargo were wholly Mexican. The Port of New Orleans was a port of entry, open to her, for ingress and egress, and for all lawful commerce. How was it closed? It is clear that it was not closed by legislation. Nor was the Treaty with Mexico, which might have been suspended or abrogated by Act of Congress, (being only the 'supreme law of the land,' in the same sense with such acts,) in any degree disturbed by the National Legislature.
Now, this decree of condemnation could only be founded upon one of two alternatives: seizure under the municipal law, or capture under the international law, for violation, or attempt at violation, of a blockade.
It is plain that there was no municipal law by which it could be justified. The President cannot make, alter, or suspend 'the supreme law of the land;' and this condemnation rests solely upon his authority.
IV. Was it capture? Blockade is a belligerent right. There must be war, before there can be blockade in the international sense, giving jurisdiction in prize. There may be an interruption of commerce, 'in the nature of a blockade.' But this is the exercise of the legislative power, and is purely municipal. The distinction is plainly shown in Rose vs. Himely, (4 Cr., 272). But this legislative power does not reside in the President. The Constitution, in its first section, lays the corner-stone of the edifice it was erecting, declaring that 'all legislative powers herein granted shall be vested in a Congress of the United States, [67 U.S. 635, 645] which shall consist,' &c. Therefore, it only remains to inquire, was there war?
But it has been objected that this question is not open here to this foreign claimant. This is a mistake. It is a principle of the law of nations that 'the sovereign power of the State has alone the authority to make war.' Wheat. on Captures, 40; Wildman, vol. 2, chap. 1. And Vattel ( Lib. III, cap. 1, sec. 4) says: 'The sovereign power has alone the authority to make war. But as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited, according to the will of the nation, we are to seek the power of making war in the particular Constitution of each State.' And Bacon (Ab. Tit. Prerogative) says: 'It is intex jura summi imperii, and in England is lodged in the King; though, as my Lord Hale says, it ever succeeds best when done by parliamentary advice.'
The counsel for the United States, speaking for the President, take very bold and very alarming positions upon this question. One of them testifies, in well-considered rhetoric, his amazement that a judicial tribunal should be called upon to determine whether the political power was authorized to do what it has done. He is astounded that he should be required to 'ask permission of your Honors for the whole political power of the Government to exercise the ordinary right of self-defence.' He pictures to himself how the world will be appalled when it finds that 'one of our Courts' has decided that 'the war is at an end.' He tells us that this is merely a Prize Court, and that the Prize Court sits 'by commission of the sovereign,' merely as 'an inquest to ascertain whether the capture has been made according to the will and intent of the sovereign.' That, all the world over, the Courts merely construe the acts of the political power. That war is only 'a state of things.' It is the conflict of opposing forces, with guns and swords and bayonets, in large numbers; and the Executive power being actually engaged in such conflict, war exists conclusively for this 'one of our Courts,' sitting by 'commission of the sovereign.'
A other of the learned counsel tells us that 'the sovereign [67 U.S. 635, 646] has assumed the responsibility. His Prize Court has no commission to thwart his purpose, or overrule his construction of the law of nations.' And he added a significant admonition-that if 'the pure and simple function of the Prize Court be transcended, then the Court is no longer a Court of the sovereign, but an ally of the enemy.'
What place is this, where such thoughts are uttered? If the question were asked literally, and the dull walls of this old Senate Hall could comprehend and answer, they would give back in echoes the voices of departed patriots and statesmen-'this place is sacred to the Constitution of the United States.'
But what tribunal is this? Is it 'one of our Courts?' Does it sit 'by commission of the sovereign?' Who is its sovereign? and what is its commission? It acknowledges the same sovereign, and none other, that is sovereign of the President and of Congress-the 'respective States,' and 'the people' thereof. It has the same commission, and none other, which gives authority to the President and to Congress-the Constitution. It arose at the creation of this Government, coeval and co-ordinate with the Executive and Legislature, independent of either or both. More, it was charged with the sublime trust and duty of sitting in judgment upon their acts, for the protection of the rights of individuals and of States, whenever 'a case' should come before it, as this has come, challenging the Constitutional authority of such acts.
This is a Government created, defined, and limited by a written Constitution, every article, clause, and expression in which was pondered and criticised, as probably no document in the affairs of men was ever before tested, refined, and ascertained. It is the office of this Court, as an organic element of the Government, to construe this Magna Charta, and to bring all cases which come before it to this test. So that, as well by the peculiar quality of this Court, as by the clear doctrine of the law of nations, the question is here to be put and answered, was there war? Not, was there 'a state of things' involving in point of fact all the deadly machinery, and all 'the pomp and circumstance' of war; but, had 'the sovereign power of the State' [67 U.S. 635, 647] declared war; declared that it should exist, or that, by the act of an enemy, it did already exist; war with its legal incidents municipal and international?
In this first great experiment of a written Constitution, of course it was explicitly and exclusively declared, in words as plain as language affords, where this tremendous power should reside. To Congress is entrusted the power 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' Art. I., sec. 8, par. 11.
It is not pretended that at the time of this so-called capture, Congress had declared that there should be war, or that war existed, or had in any manner dealt with the question of war. The 'state of things' which the counsel for the Government call 'war,' had arisen in vacation. But the Constitution had expressly provided for this case, and plainly distinguished it from 'war.' This necessity for national defence or offence, by military force, might arise by 'insurrection or invasion.' The former is domestic, the latter foreign violence. But even in this latter case, namely, an invasion by a foreign nation, in itself an act of war by that nation, the Constitution did not depart from its inexorable rule that the country could only be involved in the legal consequences of war by Act of Congress. It contemplated temporary measures by the Executive. It authorized Congress 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and REPEL INVASIONS.' Art. I., sec. 8, par. 15. So that, side by side, the two cases are distinctly provided for; the power to suppress insurrections and repel invasions, which Congress might delegate to the President by a general law (as it did ); and the power to put the country in the state of war, which was limited to Congress alone, acting upon the particular case.
But it has been maintained that the Acts of Congress passed subsequently to these seizures, have by retroaction recognized and validated a previous state of war. This is utterly inconsistent with the idea of a Government created by written Constitution. To affirm that when a careful and scrupulous distribution of powers has been made between the three great departments [67 U.S. 635, 648] of free Government, either one may exercise the powers of the other, and that a subsequent cession or approval by the competent power will validate the act, is to convert the Constitution into a mere shadow. The maxim between private principal and agent, 'omnis ratihibitio,' &c., cannot apply. The supposed 'ratihibitio' is not by the principal who speaks in the Constitution, but by another agent of the principal having no right to delegate the special power. The matter then comes back necessarily to the pure question of the power of the President under the Constitution. And this is, perhaps, the most extraordinary part of the argument for the United States. It is founded upon a figure of speech, which is repugnant to the genius of republican institutions, and, above all, to our written Constitution. It makes the President, in some sort, the impersonation of the country, and invokes for him the power and right to use all the force he can command, to 'save the life of the nation.' The principle of self- defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that 'the life of the nation' is in danger. To suppose that this Court would desire argument against such a notion, would be offensive.