72 U.S. 28 - The Peterhoff

APPEAL from a decree of the District Court for the Southern District of New York, condemning for attempt to break blockade, a vessel ostensibly on a voyage from London to the mouth of the Rio Grande, with a cargo documented for a neutral port.

The territory of the United States, as is generally known, is separated on one part of its boundary from the republic of Mexico by the Rio Grande, a large stream, entering by a broad mouth, and by a course at that point nearly east, the Gulf of Mexico. At the mouth of the river a bar prevents the passage of vessels drawing over seven feet of water. By treaty between the two nations the boundary line begins in the Gulf three leagues from land opposite the mouth of the river, and runs northward from the middle of it. The navigation of the stream is also made free and common to the citizens of both nations, without interruption by either without the consent of the other, even for the purpose of improving the navigation.

About forty miles up the river, on the United States bank of the stream, in the State of Texas, stands the American town of Brownsville; and nearly opposite, on the Mexican bank, the old Spanish one of Matamoras, separated but by the river. The natural facilities of intercourse between the two places are thus extremely easy. [See sketch infra, p. 173.]

Both towns are approached from the Gulf by the Rio Grande; but Brownsville may be also approached through places more on the northern coast of the Gulf, and wholly within the Federal territory, to wit, by the Brazos Santiago and the Boca Chica.

In this state of geographical position and of treaty with Mexico, the President, on the 19th April, 1862, during the late rebellion in the Southern States, and with the purpose, as declared to foreign governments, to 'blockade the whole coast from the Chesapeake Bay to the Rio Grande,' declared the intention of the National government to set on foot a blockade of those States 'by posting a competent force so as to prevent the entrance or the exit of vessels;' and a naval force was soon after stationed near the mouth of the Rio Grande. No force of any kind was placed along the Texan bank of the river, that region being then in rebel possession, as the opposite was in Mexican.

Nothing was said in these proclamations of the port of Brownsville being blockaded, though in a subsequent proclamation (February 18, 1864), relaxing the blockade, it was recited as a matter of fact that the place had been blockaded.

With this blockade above mentioned, as made by the proclamation of 19th April, in force, the Peterhoff, a British built and registered merchant screw-propeller, drawing sixteen feet of water, not a fast sailer, set sail from London upon a voyage documented by manifest, shipping list, clearance, and other papers, for the port of Matamoras.

The bills of lading, of which there were a large number, all stipulated for the delivery of the goods shipped 'off the Rio Grande, Gulf of Mexico, for Matamoras;' adding, that they were to be taken from alongside the ship, providing lighters can cross the bar.

With the exception of a portion consigned to the orders of the captain, which was owned by the owners of the vessel, the cargo was represented in agency or consigneeship chiefly by three different persons on board the vessel as passengers—Redgate, Bowden, and Almond—all natives of Great Britain. Redgate stated that a large portion was consigned to him as a 'merchant residing in Matamoras,' and that, 'had the goods arrived there, they were to take the chances of the market.' Bowden testified to the same effect, that, had they arrived, the portion represented by him would have taken the chances of sale in the market, and the proceeds been returned to the shippers. Almond, that it was his intention to settle in Matamoras, and to sell the goods represented by himself, 'taking my chance in the market for the sale.'

At the time of this voyage Mexico was at war with France; that is to say, France was endeavoring to place Prince Maximilian on the throne of Mexico, against the wishes of its people and of its legitimate President, Juarez, and was supporting its pretensions by force of arms in the Mexican territory.

The cargo of the Peterhoff, valued at $650,000, was a miscellaneous cargo, and was shipped by different shippers, all British subjects except one, Redgate, hereafter described. A part of it was owned by the owner of the vessel.

Of its numerous packages, a certain number contained articles useful for military and naval purposes in time of war. Among them, as specially to be noted, were thirty-six cases of artillery harness in sets for four horses, with two riding-saddles attached to each set. The owner of this artillery harness owned also a portion of the non-military part of the cargo. There were 14,450 pairs of 'Blucher' or army boots; also 'artillery boots;' 5580 pairs of 'government regulation gray blankets;' 95 casks of horseshoes of a large size, suitable for cavalry service; and 52,000 horseshoe nails.

There were also considerable amounts of iron, steel, shovels, spades, blacksmiths' bellows and anvils, nails, leather; and also an assorted lot of drugs; 1000 pounds of calomel, large amounts of morphine, 265 pounds of chloroform, and 2640 ounces of quinine. There were also large varieties of ordinary goods.

Owing to the blockade of the whole Southern coast, drugs, and especially quinine, were greatly needed in the Southern States.

During the rebellion, Matamoras, previously an unimportant place, became suddenly a port of immense trade; a vast portion of this new trade having been, as was matter of common assertion and belief, carried on through Brownsville, between merchants of neutral nations and the Southern States. And it was stated at the bar that the Federal government had, for reasons of public policy, even granted several clearances from New York to Matamoras during the rebellion, though only on security being given that no supplies should be furnished to persons in rebellion.

The Peterhoff never reached the Rio Grande. She was captured by the United States vessel of war Vanderbilt on suspicion of intent to run the blockade and of having contraband on board. When captured she was in the Caribbean Sea south of Cuba, and in a course to the Rio Grande, through the Gulf of Mexico; having some days previously been boarded, but not captured, by another Federal cruiser, the Alabama

She had on board when captured a British mail for Matamoras, closed under official seal. The officer of the Vanderbilt, on boarding her, asked her captain to take to that vessel his papers. This the captain of the Peterhoff refused to do, assigning as the ground of refusal that he was in charge of her Majesty's mail, and requiring that all papers should be examined on the Peterhoff itself.

In addition it appeared that papers or articles of some kind had been destroyed in view of capture. A 'package' was thrown overboard. The captain of the Peterhoff, having in a general way presented a similar statement on the examination in preparatorio, gave, on a supplemental examination, this circumstantial account of the matter:

'Before leaving Falmouth I received a telegram from the owner of the ship, instructing me to question the passengers as to whether they had any documents in their possession. I immediately called them together. They, one and all, including a passenger named Mohl, declared that they had nothing in their possession of such description. After the ship left Falmouth, Mr. Mohl came to me, and stated that he had a small packet of white powder—'patent white powder' he called it—in which he and some of his friends were interested. I said, 'You had better deliver it up to me, for it is a dangerous article to have on board.' He gave it to me and I locked it up in my state-room. I asked him why he had not mentioned this before leaving Falmouth. He replied, that as it was neither papers or writings of any kind, he did not think it requisite. When the Alabama approached us I called Mr. Mohl and told him that I did not like having this packet of powder on board, and that if the ship was likely to be searched it must either be opened or destroyed, and then gave it in charge of one of my officers, the second officer, with orders to throw the package overboard if I instructed him. Our vessel not being examined by the Alabama, it was not then destroyed. After we were boarded by the Vanderbilt I called Mr. Mohl again and requested him to let me see the contents of the package. To this he objected, saying it was a patent, and could not be seen by any but himself and friends. So I ordered it to be thrown overboard, fearing it might jeopardize the ship in some way, and it was accordingly thrown overboard. I believe it to have been white powder as stated by Mr. Mohl, and had no reason to believe otherwise, and do not think any one knew the contents of this packet but this same Mr. Mohl.'

One of the seamen, however, testified that the package thrown overboard was a box into which the captain put papers, and that giving it to the second officer he told him to put something in the box to sink it, and on raising of his finger to let it go overboard.

Another seaman, that the package was 'a sealed parcel wrapped in brown paper.'

A third, that it was a package sewed up in canvas weighted with lead so as to sink it, and was spoken of by the captain as 'despatches;' 'that after sending for Mr. Mohl to witness the necessity for throwing the package overboard, he then ordered the second officer to throw it over from a part of the ship where it would not be observed by the Vanderbilt; which he did; and that Mr. Mohl appeared very much depressed at the necessity.'

Mohl was permitted by the government after the capture to go at large.

The captain admitted that he had torn up some letters, which he swore were letters from his wife and father; swearing also that no other papers were destroyed.

A small portion of the cargo, about 150, was owned by, and a large part, about 20,000, was consigned to a person named Redgate, already referred to. In the part consigned he was interested by way of commission. Redgate was a native of England, but had come to Texas while it was a Mexican province, and was a resident there when it was annexed to the United States. He made this statement, not disproved, of his conduct during the rebellion.

'Since the annexation of Texas to the United States, the deponent has borne true allegiance to the United States in every matter and thing. In every way and shape possible for him to act, he opposed the secession of the State of Texas from the Union. At the time of the passage of the so-called secession ordinance of that State, he was a member of its legislature. After the passage, he, together with fourteen members of the house of representatives, four senators, and six protesting delegates of the secession convention, signed an address to the people of Texas, urging them to resist the ordinance and to remain in the Union. That address was printed and circulated, as far as possible, throughout the State. He contributed to the circulation of the said address a very considerable amount of money. [Address produced.] Owing to the state of public feeling in Texas at the time of the publication and circulation of the address, the lives of the signers of the same were greatly perilled; one of them has since been murdered, and another is now in duress, as the deponent is informed and believes; and the remainder of the said twenty-four senators, members, and protesting delegates (amongst the latter this deponent), are all, or nearly all, in exile from the State of Texas as political refugees. After the promulgation of the said address, and before leaving the State of Texas, as he has reason to believe, he narrowly escaped assassination, and he knows that his life was conspired against by the secessionists in consequence of his political opinions and of his opposition to secession.'

After leaving Texas, Redgate became a resident of Matamoras, trading there and thence. He was on board the vessel when captured, superintending his interest.

The vessel having been taken into New York, was there libelled in the District Court as prize of war. Claim was filed by the captain, intervening for the interest of his principals the 'owners of the steamer and cargo;' also by Redgate as 'owner, agent, and consignee of a large portion of the cargo,' and by Almond as 'owner, agent, and consignee' of another portion.

The District Court condemned the vessel and cargo as lawful prize of war.

The case was now before this court, on the appeal of Jarman, professing to represent the vessel and cargo, and on the appeals of Redgate and Almond, professing to represent their respective portions of the cargo.

Mr. Coffey, special counsel, and Mr. Ashton, Assistant A. G., for the United States, and in support of the decree:

I. The fact that if the vessel went to the Rio Grande at all, all her cargo would have to be taken off in lighters, and if taken to Matamoras, would have to be transported on these for no less a distance than forty miles, raises some presumption that the cargo was not destined to go up or even to the Rio Grande at all; but that the ostensible destination was a simulated one, and that really, the blockade was meant to be broken at any point of the Southern coast which should be found most practicable; or, at farthest, broken on the Gulf coast of Texas, which, it will be conceded, that our blockade covered.

The idea is confirmed by the various facts, as that

1. The cargo was of a character and extent, wholly unadapted to the insignificant port of Matamoras and the Mexican market which centres there, but perfectly adapted in all respects to the enemy market, everywhere, and by that market urgently demanded.

2. That the master refused to convey his papers aboard the Vanderbilt, and most of all,

3. That, under circumstances of aggravation, he destroyed papers in the moment of capture.

We advert to these last two points hereafter.

II. Admitting, however, that the cargo was destined to go up the Rio Grande and to Matamoras specifically as documented, and was meant bon a fide for its use, the destination was unlawful.

1. That a blockade of the mouth of the Rio Grande was in fact included in our blockade of the Southern coast, cannot, we think, be rightly denied. The purpose of the government, both unquestionable and clearly expressed, was to blockade the rebellious States, in a specific manner. And how? 'By posting a competent force so as to prevent the entrance or exit of vessels' into or out of those regions: 'so,' of course, as to prevent such entrance or exit in any form; including, of necessity, perhaps primarily, that form in which vessels usually, in common parlance, do, or, in strict parlance, can alone enter a country; that is to say, by sailing into it by its navigable rivers.

A blockade of the mere Gulf coast of Texas was no blockade. That coast has few or no ports. The vast stream of the Rio Grande, was the best place of entrance into Texas, and if the blockade was to be a blockade made 'so' as to prevent entrance of vessels into that State, then Matamoras, Brownsville, and the whole banks of the river, as far as navigable for vessels, was blockaded of irresistible inference. And that this was the way in which the blockade was understood by its author to have been made, is shown by the proclamation relaxing it. This recites that Brownsville had been blockaded; which implied that the whole mouth of the Rio Grande, like the whole mouth of other rivers on the rebel coast had been: a blockade of half a river being of no value to the blockading government, and not to be presumed.

We assume then that the river mouth was intended by our government to be blockaded.

Had our government a right so to blockade it?

It had.

This proposition rests on the principle that the belligerent has a right to make his blockade absolutely effective.

To allow vessels or their cargoes to cross the bar at the mouth of the Rio Grande and pass up the river under the pretext of going to Matamoras, was to render the blockade of the Texan side of the river nugatory. No watchfulness or energy in the blockading squadron outside the bar could prevent unlimited supplies from reaching Brownsville, and through it the whole confederacy, if they might with impunity be carried up to Matamoras, only a few yards distant from Brownsville, and far beyond the reach of the blockaders.

The Maria,1 decided by Sir William Scott, asserts the principle which we put forth. There the river Weser, one bank of which was held by the French (enemy), and on the other bank of which was the neutral city of Bremen, was blockaded by the British. The cargo was shipped from Bremen on the Weser to the Jahde in lighters, and there transshipped, and was on its way to America in the vessel when captured. It was contended by the captors that the exportation from Bremen was a violation of the blockade of the Weser. Sir William Scott said:

'I have had frequent occasion to observe how severely the neutral cities connected with the Weser and the Elbe are pressed upon by the blockade of those rivers. At the same time it is my duty to apply to those operations of blockade the principles that belong to that branch of the law of nations generally, and by which only such measures can be maintained. The principles themselves cannot differ; although it will undoubtedly be the disposition of the court to alleviate the situation of those towns as much as possible by attending to any distinctions that can be advanced in their favor, not inconsistent with the sound construction of the general principles of law. A blockade imposed on the Weser must in its nature be held to affect the commerce of Bremen; because if the commerce of all the towns situated on that river is allowed, it would be only to say, in more indirect language, that the blockade itself did not exist. It cannot be doubted, then, on general principles, that these goods would be subject to condemnation, as having been conveyed through the Weser; and whether that was effected in large vessels or small would be perfectly insignificant. That they were brought through the mouth of the blockaded river for the purpose of being shipped for exportation would subject them to be considered as taken on a continued voyage, and as liable to all the same principles that are applied to a direct voyage, of which the terminus a quo and the terminus ad quem are precisely the same as those of the more circuitous destination. ..... If, therefore, nothing had passed between the government of this country and the city of Bremen, it appears to me that these goods would be subject to condemnation, and that I should be unable to distinguish the port of Bremen from any other place liable to the general operations of a blockade.'

The Zelden Rust,2 by the same judge, seems to be to the like effect. There a cargo of Dutch cheese was taken on an asserted destination from Amsterdam to Corunna. The captors argued that a destination to Corunna was, in fact, a destination to Ferrol (the enemy port), since those ports were both in the same bay, and so situated as to render it impossible to prevent supplies from going immediately to Ferrol for the use of the Spanish navy if they were permitted to enter the bay unmolested on an asserted destination to Corunna. Having held that cheese, going to a place of naval equipment and fit for naval use, was contraband, Sir William Scott said:

'Corunna is, I believe, itself a place of naval equipment in some degree; and if not so exclusively, and in its prominent character, yet from its vicinity to Ferrol it is almost identified with that port. These ports are situated in the same bay, and if the supply is permitted to be imported into the bay, it would, I conceive, be impossible to prevent it from going on immediately, and in the same conveyance, to Ferrol.'

'I think myself warranted to consider this cargo, on the present destination, as contraband, and, as such, subject to condemnation.'3

His language in The Neutralitet,—not indeed that of a solemn judgment, but, as his, still much to be listened to,—is equally in support of our position:

'I am disposed to agree to a position advanced in argument, that a belligerent is not called upon to admit that neutral ships can innocently place themselves in a situation where they may with impunity break the blockade whenever they please. If the belligerent country has a right to impose a blockade, it must be justified in the necessary means of enforcing that right; and if a vessel could, under the pretence of going further, approach, cy pres, close up to the blockaded port, so as to be enabled to slip in without obstruction, it would be impossible that any blockade could be maintained. It would, I think, be no unfair rule of evidence to hold as a presumption de jure, that she goes there with an intention of breaking the blockade; and if such an inference may possibly operate with severity in particular cases, where the parties are innocent in their intentions, it is a severity necessarily connected with the rules of evidence, and essential to the effectual exercise of the right of war.'

Other cases—as The Charlotte Sophia, The Charlotte Christine, and The Gute Erwartuny,4 decided, all, by Sir William Scott, all tend to a similar conclusion.

We do not assert that all neutral commerce with Matamoras was interdicted by the blockade of the Rio Grande, but simply commerce of a contraband character. The principle declared by Lord Stowell was applied by him to all neutral trade of Bremen, and, in reason, may safely extend that far. But we have preferred to restrict its application to trade of a contraband character, because the case of the Peterhoff requires no more, and because, so stated, it seems to us to be within the authority of The Zelden Rust.

2. If our position just presented is not a true one, still as a matter of fact the ulterior destination of the cargo was Texas, and the other Southern States then in insurrection, and this ulterior destination was a breach of the blockade.

The whole case proves the destination which we allege.

We must advert here to the late familiar history of the straits to which the Southern armies and people were reduced by our stringent blockade of their whole coast. The sudden elevation of the petty port of Matamoras into a great centre of commercial activity rivalling the trade of New York or Liverpool, because its territorial neutrality, and its proximity to Texas, seemed to secure to trade with the rebels almost absolute immunity from danger, and to set at complete defiance the efforts of our blockaders; the remarkable spectacle of first-class ships, laden with cargoes of variety and value, arrested off an almost uninhabited coast by a bar which compelled them to transfer their cargoes to lighters in the open sea, many miles from their pretended port of destination, and which even prevented their approaching that port after they were unladen; the sudden accession to the population of Matamoras of large numbers of eager speculators, most of whom were, like Redgate, inhabitants of rebel States, and the establishment of numerous and extensive importing houses with branches at London, Liverpool, and Glasgow, who achieved both 'entrance' and 'exits' of vessels: all this is matter of present judicial knowledge.

Under the stimulus of fancied exemption from danger, this new rebel trade 'rose like an exhalation,' and Matamoras became the commercial outpost of the rebellion. For the new trade was not with the country in which Matamoras is situated, nor even with that town itself, but with the territory on the other side of the river, only a stone's throw across. The market, which was called Matamoras, was the whole population of our Southern States, extending to the Potomac, and the Southern armies on both sides of the Mississippi. And the supplies thus got from Matamoras were paid for in cotton.

Was this sort of commerce a breach of our blockade?

Practically, without any doubt whatever, it was.

And it was so in law. The Bermuda is in point. There the voyage, as documented, was to the neutral port, Nassau. There was no reason to suppose that the vessel itself, the Bermuda, meant to run our blockade. The cargo was, perhaps, meant to be landed at the neutral port. But it was unsuited for that port. 'The character of the cargo,' said Chase, C. J., who gave the opinion of the court, 'made its ulterior, if not direct destination, to a rebel port, quite certain.' Counsel argued much in favor of what were set up as neutral rights. But the court, defining with clearness and precision, all rights that were really neutral, said that 'if it was intended to affirm that a neutral ship may take on a contraband cargo ostensibly for a neutral port, but destined in reality for a belligerent port, either by the same ship or by another, without becoming liable, from the commencement to the end of the voyage, to seizure, in order to the confiscation of the cargo, we do not agree to it.'

And acting on this view, a decree of condemnation was affirmed.

The decree below ought, therefore, to be 'affirmed;' affirmed in toto, and in form; but if it is not so affirmed, it should be affirmed in its main parts severally: and this in the result is nearly tantamount to an affirmance simply.

(a) As to the contraband, and also as to the whole part owned by the owner of that contraband portion. Both are confiscable. A large part of the cargo was contraband of war by any definition of contraband of war ever made. It cannot be doubted that this part was meant for the Southern army. If this was so, then even if really shipped for Matamoras and meant to be landed and sold to the enemy there, it is confiscable, and it contaminates all owned by the owner of it.

(b) As to the part claimed by Redgate. This is confiscable as enemy's property. Redgate was a citizen of Texas, an enemy's country; and irrespective of any personal dispositions in law, an enemy. This is the doctrine as settled by the court, even under circumstances of the greatest hardship.5 Now restitution cannot be made to an enemy. He has no standing in court. The decree as to that part of the cargo claimed by him, must stand.6

Nor can the court go behind the claim of Redgate to seek neutral owners whom he may represent, and who are not disclosed either by him or by themselves. They have no legal existence except in him, and we may safely infer that they have no existence at all.

Besides, the legal effect of the consignment of these goods to Redgate, into whose actual possession they were delivered at the time of shipment, was to vest the title in him, and so make them lawful prize, no matter by whom they were shipped.7

(c) The vessel. This must also be condemned.

1. The refusal of the master when boarded by the Vanderbilt, to exhibit his papers on board that vessel, was a grave offence against public law. The case is like that of The Maria, condemned for refusal by Sir William Scott.8

2. But the crowning and conclusive act was the destruction of papers in the moment of capture; and the various falsehoods, afterthoughts, in a good degree,—in concealment of the fact of destruction, or of the character and importance of the papers. As evidence of intent to run the blockade, this, indeed, should condemn both vessel and cargo. But as a rule of policy it equally holds as respects a vessel, where all the cargo may not be involved. The case comes within The Pizarro,9 where it is said by this court that if the explanation be not prompt and frank, or if it be weak and futile, condemnation ensues from defects in the evidence; defects which the party is not permitted to supply. It falls still more within the case of The Two Brothers, where Sir William Scott says, that 'if neutral masters destroyed papers, they were not at liberty to explain away such suppression by saying they were only private letters; that it was always to be supposed that such letters relate to the ship or cargo, and that it was of material consequence to some interests that they should be destroyed.'10

It is a presumption of law that with such an immense body of contraband on board the destination, direct or through Matamoras, of it, was known to the owners of the vessel. This is the law to be gathered from numerous cases: as, for example, from among them, The Neutralitet,11 where the owner chartered the ship for contraband trade; The Franklin,12 where the ship was carrying contraband, with a false destination, and where Sir William Scott said that the relaxation of the ancient rule which condemned the ship with the cargo could only be claimed by fair cases; The Ranger,13 where he said, 'If the owner of the ship will place his property under the absolute management and control of persons who are capable of lending it to be made an instrument of fraud in the hands of the enemy, he must sustain the consequences of such misconduct on the part of his agent;' The Baltic,14 where the ship was condemned because 'the owner must have been aware of the fraud intended, if not a confidential party to it.'15

Messrs. Marvin, Sherwood, and A. F. Smith, contra, for the claimants:

I. There is really no ground to suppose intent to do anything but what was ostensibly presented as the purpose of the voyage. The vessel was a slow sailer, not at all suited by speed for a blockade-runner. The cargo was needed by Mexico for her war with France as much as by the rebel army for its resistance to the Federal power. The vessel, drawing as much water as she did, had necessarily to anchor off the mouth of the Rio Grande. She could not go into it. We speak of the master's disinclination to take his papers aboard the Vanderbilt and of his alleged throwing overboard of papers hereafter. The destination then was not simulated, and the cargo was destined to go up the Rio Grande.

II. This destination was lawful——

1. Because in point of fact the mouth of the Rio Grande was not meant to be blockaded. We at times had cruisers at its mouth, but they did not assert a right to blockade a river which was one-half Mexican. As hereafter stated, vessels almost daily cleared from Northern ports, with the acquiescence of the government, for the port of Matamoras.

2. Because, if it had been blockaded, the blockade would have been void; our government having had no right to prevent trade by neutrals with Mexico; not even with those ports separated from us by a boundary river. None of the cases cited are adjudications of the point. The Zelden Rust is not so, for both the ports there of Corunna and Ferrol were enemy's ports, and the question was whether the cargo was contraband.16

Upon principle, we insist that the courts of the United States will not add new restrictions to neutral trade.

It is argued that the real destination of the cargo was Texas, through Matamoras. This is not clear; the cargo having been suited for Mexico while at war with France as much as for our Southwestern States, then in insurrection against the National government. But if the destination were as alleged, it would be after a sale at Matamoras and an incorporation into the stock of commerce. The law laid down in The Bermuda would protect, not condemn, this. But the voyage of that ship was so different from that of the Peterhoff that the decision in The Bermuda does not apply.

Whatever might be the law on the case as existing elsewhere or under other circumstances, is not our government estopped from capture and condemnation here? As a matter of fact it may be stated that between the 1st November, 1862, and the date of this capture, fifty-nine vessels with cargoes have cleared from the port of New York alone to the port of Matamoras [the dates were given], under the sanction of the Treasury Department and the custom-house officers. This commerce was permitted to go on certainly from the city of New York, and we suppose from other seaports of note in the Northern States. Our own country and other countries have participated in it without hindrance alike; and having done so in a manner that gave notice to the world that this course of commerce was free, how can our government set up the right of capture? In truth the government has been placed in an awkward position by the act of the naval forces now under consideration, and its law officers will add to the awkwardness of its position by endeavoring to justify the captors; a thing impossible, we think, when the controlling circumstances of the case are considered.

The state of commercial things just alluded to was brought to the attention of the President and War Department during the war, by the Union refugees of Texas and others, and the necessity of taking military possession of the left bank of the Rio Grande, with a view of cutting off this trade, urged upon the government. But for reasons of public policy the trade was not cut off. The government desired, perhaps, to alleviate the 'cotton famine' in England and France, and so to take away from those countries one excuse for their threatened 'intervention' in behalf of our Southern States. Whatever was the reason, it was a satisfactory one to our government at the time.

Finally, giving up the correctness of a condemnation in toto, it is argued that the vessel and parts of the cargo should be condemned.

(a) An argument is made that some part of the cargo was contraband.

The mere fact that contraband of war imported into Mexico for trade there might be again sold, and so come to the use of the belligerent, would have no effect upon the question at issue. It is trade with the belligerent in contraband that subjects to capture. Trade between neutrals in contraband of war is legitimate, although they both know or believe that, eventually, the contraband may be sold to the belligerent. This was admitted even in The Bermuda.17

Of course it is not pretended that the concealment of the real destination by the interposition of a simulated one would protect the trade, where the real destination was the belligerent port or the enemy's army.

But how much contraband was there? for the contraband must be in considerable quantities to make an offence.18 The 'Blucher boots' are formidable features at first view. But every one acquainted with the habits of the people of Mexico, and especially of those much in the saddle, is aware of the extensive use of what are here thus called. In travelling over a country where there are neither ferries nor bridges, every man's horse is his means of transit, and in fording and swimming streams this sort of boots is used as a protection to the limbs and feet. So as to the supposed military blankets. In a country where nearly the whole travelling is done on horseback, a horse and saddle, a lariat at the saddle-bow, and a pair of blankets behind, are the traveller's equipment. These blankets are his shelter from the storm, and whether in the cabin or on the prairie, with his saddle for a pillow, they make his bed for the night.

But what is contraband by the law of nations as recognized and insisted by the government of the United States? This appears by reference to the various treaties and state papers.19

In view of the law of nations as settled by the authorities cited in the note, there was nothing contraband on board but the artillery harness.

If it were proved that any contraband on board was designed directly for the rebels, that would not subject to condemnation either the ship or the rest of the cargo.20

Trade in contraband, even with the enemy, is legitimate; it only subjects the contraband to condemnation and the ship to loss of freight.21

(b) Redgate's former residence in Texas. This cannot subject his portion of the cargo to condemnation even under the too hard rule set up. He no longer resided in Texas, and the case is not within the rule, nor the reason of the rule stated in the case cited.

(c) As to the vessel.

1. The refusal of Captain Jarman, if he did refuse, to go on board the Vanderbilt, giving as a reason that he was 'in charge of her Majesty's mails,' and offering also the papers and ship for search, was no resistance of the 'right of search' to subject the ship or cargo to condemnation.

The Maria, relied upon by the other side, is no authority for so tyrannical a right; that was a case of absolute resistance to search.

2. Spoliation of papers is in itself no ground for condemnation.22 It is only evidence, more or less convincing according to the circumstances of the case and the character of the papers destroyed, of the existence of some other ground for condemnation, such as a purpose to break blockade, or the carrying of contraband, to the enemy. In the present case, apparently, no papers were destroyed, nothing was thrown over but a packet believed by the master to contain powder brought on board by a passenger without the master's knowledge or consent. The passenger had no interest in the ship or cargo, and he was permitted by the captors without the consent of the claimants, to depart and go where he pleased, without being examined as a witness. Had he been examined he would in all probability have proved it to have contained white powder as he alleged it to contain. The throwing overboard of the packet was an unwise act. That is all.

And there is no evidence that the owners of the ship came within the cases cited of parties 'who lent themselves as an instrument of fraud in the hands of the enemy.'

The CHIEF JUSTICE delivered the opinion of the court.

This case is of much interest. It was very thoroughly argued, and has been attentively considered.

The Peterhoff was captured near the island of St. Thomas, in the West Indies, on the 25th of February, 1863, by the United States Steamship Vanderbilt. She was fully documented as a British merchant steamer, bound from London to Matamoras, in Mexico, but was seized, without question of her neutral nationality, upon suspicion that her real destination was to the blockaded coast of the States in rebellion, and that her cargo consisted, in part, of contraband goods.

The evidence in the record satisfies us that the voyage of the Peterhoff was not simulated. She was in the proper course of a voyage from London to Matamoras. Her manifest, shipping list, clearance, and other custom-house papers, all show an intended voyage from the one port to the other. And the preparatory testimony fully corroborates the documentary evidence.

Nor have we been able to find anything in the record which fairly warrants a belief that the cargo had any other direct destination. All the bills of lading show shipments to be delivered off the mouth of the Rio Grande, into lighters, for Matamoras. And this was in the usual course of trade. Matamoras lies on the Rio Grande forty miles above its mouth; and the Peterhoff's draught of water would not allow her to enter the river. She could complete her voyage, therefore, in no other way than by the delivery of her cargo into lighters for conveyance to the port of destination. It is true that, by these lighters, some of the cargo might be conveyed directly to the blockaded coast; but there is no evidence which warrants us in saying that such conveyance was intended by the master or the shippers.

We dismiss, therefore, from consideration, the claim, suggested rather than urged in behalf of the government, that the ship and cargo, both or either, were destined for the blockaded coast.

But it was maintained in argument (1) that trade with Matamoras, at the time of the capture, was made unlawful by the blockade of the mouth of the Rio Grande; and if not, then (2) that the ulterior destination of the cargo was Texas and the other States in rebellion, and that this ulterior destination was in breach of the blockade.

We agree that, so far as liability for infringement of blockade is concerned, ship and cargo must share the same fate. The owners of the former were owners also of part of the latter; the adventure was common; the destination of the cargo, ulterior as well as direct, was known to the owners of the ship, and the voyage was undertaken to promote the objects of the shippers. There is nothing in this case as in that of the Springbok to distinguish between the liability of the ship and that of the merchandise it conveyed.

We proceed to inquire, therefore, whether the mouth of the Rio Grande was, in fact, included in the blockade of the rebel coast?

It must be premised that no paper or constructive blockade is allowed by international law. When such blockades have been attempted by other nations, the United States have ever protested against them and denied their validity. Their illegality is now confessed on all hands. It was solemnly proclaimed in the Declaration of Paris of 1856, to which most of the civilized nations of the world have since adhered; and this principle is nowhere more fully recognized than in our own country, though not a party to that declaration.

What then was the blockade of the rebel States? The President's proclamation of the 19th April, 1862, declared the intention of the government 'to set on foot a blockade of the ports' of those States, 'by posting a competent force so as to prevent the entrance or exit of vessels.'23 And, in explanation of this proclamation, foreign governments were informed 'that it was intended to blockade the whole coast from the Chesapeake Bay to the Rio Grande.'24

In determining the question whether this blockade was intended to include the mouth of the Rio Grande, the treaty with Mexico,25 in relation to that river, must be considered. It was stipulated in the 5th article that the boundary line between the United States and Mexico should commence in the Gulf, three leagues from land opposite the mouth of the Rio Grande, and run northward with the middle of the river. And in the 7th article it was further stipulated that the navigation of the river should be free and common to the citizens of both countries without interruption by either without the consent of the other, even for the purpose of improving the navigation.

The mouth of the Rio Grande was, therefore, for half its width, within Mexican territory, and, for the purposes of navigation, was, altogether, as much Mexican as American. It is clear, therefore, that nothing short of an express declaration by the Executive would warrant us in ascribing to the government an intention to blockade such a river in time of peace between the two Republics.

It is supposed that such a declaration is contained in the President's proclamation of February 18th, 1864,26 which recites as matter of fact that the port of Brownsville had been blockaded, and declares the relaxation of the blockade. The argument is that Brownsville is situated on the Texan bank of the Rio Grande, opposite Matamoras; and that the recital in the proclamation that Brownsville had been blockaded must therefore be regarded as equivalent to an assertion that the mouth of the river was included in the blockade of the coast. It would be difficult to avoid this inference if Brownsville could only be blockaded by the blockade of the river. But that town may be blockaded also by the blockade of the harbor of Brazos Santiago and the Boca Chica, which were, without question, included in the blockade of the coast. Indeed, until within a year prior to the proclamation, the port of entry for the district was not Brownsville, but Point Isabel on that harbor; and, in the usual course, merchandise intended for Brownsville was entered at Point Isabel, and taken by a short land conveyance to its destination.

We know of no judicial precedent for extending a blockade by construction. But there are precedents of great authority the other way. We will cite one.

The Frau Ilsabe27 and her cargo were captured in 1799 for breach of the British blockade of Holland. The voyage was from Hamburg to Antwerp, and, of course, in its latter part, up the Scheldt. Condemnation of the cargo was asked on the ground that the Scheldt was blockaded by the blockade of Holland. But Sir W. Scott said, 'Antwerp is certainly no part of Holland, and, with respect to the Scheldt, it is not within the Dutch territory, but rather a coterminous river, dividing Holland from the adjacent country.' This case is the more remarkable inasmuch as Antwerp is on the right bank of the river, as is also the whole territory of Holland; and, though no part of that country was part of Flanders, then equally with Holland combined with France in a war with Great Britain. 'It was just as lawful,' as Sir W. Scott observed, 'to blockade the port of Flanders as those of Holland,' and the Scheldt might have been included in the blockade, but he would not hold it necessarily included in the absence of an express declaration.

This case seems to be in point.

It is impossible to say, therefore, in the absence of an express declaration to that effect, that it was the intention of the government to blockade the mouth of the Rio Grande. And we are the less inclined to say it, because we are not aware of any instance in which a belligerent has attempted to blockade the mouth of a river or harbor occupied on one side by neutrals, or in which such a blockade has been recognized as valid by any court administering the law of nations.

The only case which lends even apparent countenance to such a doctrine, is that of The Maria,28 adjudged by Sir W. Scott in 1805. The cargo in litigation had been conveyed from Bremen, through the Weser to Varel, near the mouth of the Jahde, and there transshipped for America. The mouth of the Weser was then blockaded, and Sir W. Scott held, that the commerce of Bremen, though neutral, could not be carried on through the Weser. This, he admitted, was a great inconvenience to the neutral city, which had no other outlet to the sea; but it was an incident of her situation and of war. It happened in that case that a relaxation of the blockade in favor of Bremen warranted restitution. Otherwise there can be no doubt that the cargo would have been reluctantly condemned.

But it is an error to suppose this case an authority for an American blockade of the Rio Grande, affecting the commerce of Matamoras. Counsel were mistaken in the supposition that only one bank of the Weser was occupied by the French, and that Bremen was on the other. Both banks were in fact so held, and the blockade was warranted by the hostile possession of both. The case would be in point had both banks of the Rio Grande been in rebel occupation.

Still less applicable to the present litigation is the case of The Zelden Rust, cited at the bar. That was not a case of violation of blockade at all. It was a question of contraband, depending on destination. The Zelden Rust, a neutral vessel, entered the Bay or River De Betancos, on one side of which was Ferrol, and on the other Corunna. Counsel argued on the supposition that Ferrol was a belligerent and Corunna a neutral port, whereas both were belligerent; and the cargo was condemned on the ground of actual or probable destination to Ferrol, which was a port of naval equipment; though nominally destined to Corunna, also a port of naval equipment, though not to the same extent as Ferrol. There was no blockade of the bay or river or of either town.

It is unnecessary to examine other cases referred to by counsel. It is sufficient to say that none of them support the doctrine that a belligerent can blockade the mouth of a river, occupied on one bank by neutrals with complete rights of navigation.

We have no hesitation, therefore, in holding that the mouth of the Rio Grande was not included in the blockade of the ports of the rebel States, and that neutral commerce with Matamoras, except in contraband, was entirely free.

If we had any doubt upon the subject, it would be removed by the fact that it was the known and constant practice of the government to grant clearances for Matamoras from New York, on condition of giving bond that no supplies should be furnished to the rebels—a condition necessarily municipal in its nature and inapplicable to any clearance for a foreign port. These clearances are incompatible with the existence of the supposed blockade.

We come next to the question whether an ulterior destination to the rebel region, which we now assume as proved, affected the cargo of the Peterhoff with liability to condemnation. We mean the neutral cargo; reserving for the present the question of contraband, and questions arising upon citizenship or nationality of shippers.

It is an undoubted general principle, recognized by this court in the case of The Bermuda, and in several other cases, that an ulterior destination to a blockaded port will infect the primary voyage to a neutral port with liability for intended violation of blockade.

The question now is whether the same consequence will attend an ulterior destination to a belligerent country by inland conveyance. And upon this question the authorities seem quite clear.

During the blockade of Holland in 1799, goods belonging to Prussian subjects were shipped from Edam, near Amsterdam, by inland navigation to Emden, in Hanover, for transshipment to London. Prussia and Hanover were neutral. The goods were captured on the voyage from Emden, and the cause29 came before the British Court of Admiralty in 1801. It was held that the blockade did not affect the trade of Holland carried on with neutrals by means of inland navigation. 'It was,' said Sir William Scott, 'a mere maritime blockade effected by force operating only at sea.' He admitted that such trade would defeat, partially at least, the object of the blockade, namely, to cripple the trade of Holland, but observed, 'If that is the consequence, all that can be said is that it is an unavoidable consequence. It must be imputed to the nature of the thing which will not admit a remedy of this species. The court cannot on that ground take upon itself to say that a legal blockade exists where no actual blockade can be applied. . . .. It must be presumed that this was foreseen by the blockading state, which, nevertheless, thought proper to impose it to the extent to which it was practicable.'

The same principle governed the decision in the case of The Ocean,30 made also in 1801. At the time of her voyage Amsterdam was blockaded, but the blockade had not been extended to the other ports of Holland. Her cargo consisted partly or wholly of goods ordered by American merchants from Amsterdam, and sent thence by inland conveyance to Rotterdam, and there shipped to America. It was held that the conveyance from Amsterdam to Rotterdam, being inland, was not affected by the blockade, and the goods, which had been captured, were restored.

These were cases of trade from a blockaded to a neutral country, by means of inland navigation, to a neutral port or a port not blockaded. The same principle was applied to trade from a neutral to a blockaded country by inland conveyance from the neutral port of primary destination to the blockaded port of ulterior destination in the case of the Jonge Pieter,31 adjudged in 1801. Goods belonging to neutrals going from London to Emden, with ulterior destination by land or an interior canal navigation to Amsterdam, were held not liable to seizure for violation of the blockade of that port. The particular goods in that instance were condemned upon evidence that they did not in fact belong to neutrals, but to British merchants, engaged in unlawful trade with the enemy; but the principle just stated was explicitly affirmed.

These cases fully recognize the lawfulness of neutral trade to or from a blockaded country by inland navigation or transportation. They assert principles without disregard of which it is impossible to hold that inland trade from Matamoras, in Mexico, to Brownsville or Galveston, in Texas, or from Brownsville or Galveston to Matamoras, was affected by the blockade of the Texan coast.

And the general doctrines of international law lead irresistibly to the same conclusion. We know of but two exceptions to the rule of free trade by neutrals with belligerents: the first is that there must be no violation of blockade or siege; and the second, that there must be no conveyance of contraband to either belligerent. And the question we are now considering is, 'Was the cargo of the Peterhoff within the first of these exceptions?' We have seen that Matamoras was not and could not be blockaded; and it is manifest that there was not and could not be any blockade of the Texan bank of the Rio Grande as against the trade of Matamoras. No blockading vessel was in the river; nor could any such vessel ascend the river, unless supported by a competent military force on land.

The doctrine of The Bermuda case, supposed by counsel to have an important application to that before us, has, in reality, no application at all. There is an obvious and broad line of distinction between the cases. The Bermuda and her cargo were condemned because engaged in a voyage ostensibly for a neutral, but in reality either directly or by substitution of another vessel, for a blockaded port. The Peterhoff was destined for a neutral port with no ulterior destination for the ship, or none by sea for the cargo to any blockaded place. In the case of the Bermuda, the cargo destined primarily for Nassau could not reach its ulterior destination without violating the blockade of the rebel ports; in the case before us the cargo, destined primarily for Matamoras, could reach an ulterior destination in Texas without violating any blockade at all.

We must say, therefore, that trade, between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, violated no blockade, and cannot be declared unlawful.

Trade with a neutral port in immediate proximity to the territory of one belligerent, is certainly very inconvenient to the other. Such trade, with unrestricted inland commerce between such a port and the enemy's territory, impairs undoubtedly and very seriously impairs the value of a blockade of the enemy's coast. But in cases such as that now in judgment, we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country. We must follow the lights of reason and the lessons of the masters of international jurisprudence.

The remedy for inconveniences of the sort just mentioned is with the political department of the government. In the particular instance before us, the Texan bank of the Rio Grande might have been occupied by the national forces; or with the consent of Mexico, military possession might have been taken of Matamoras and the Mexican bank below. In either course Texan trade might have been entirely cut off. Sufficient reasons, doubtless, prevailed against the adoption of either. The inconvenience of either, at the time, was doubtless supposed to outweigh any advantage that might be expected from the interruption of the trade.

What has been said sufficiently indicates our judgment that the ship and cargo are free from liability for violation of blockade.

We come then to other questions.

Thus far we have not thought it necessary to discuss the question of actual destination beyond Matamoras. Nor need we now say more upon that general question than that we think it a fair conclusion from the whole evidence that the cargo was to be disposed of in Mexico or Texas as might be found most convenient and profitable to the owners and consignees, who were either at Matamoras or on board the ship. Destination in this case becomes specially important only in connection with the question of contraband.

And this brings us to the question: Was any portion of the cargo of the Peterhoff contraband?

The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, or articles exclusively used for peaceful purposes.32 Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege.

A considerable portion of the cargo of the Peterhoff was of the third class, and need not be further referred to. A large portion, perhaps, was of the second class, but is not proved, as we think, to have been actually destined to belligerent use, and cannot therefore be treated as contraband. Another portion was, in our judgment, of the first class, or, if of the second, destined directly to the rebel military service. This portion of the cargo consisted of the cases of artillery harness, and of articles described in the invoices as 'men's army bluchers,' 'artillery boots,' and 'government regulation gray blankets.' These goods come fairly under the description of goods primarily and ordinarily used for military purposes in time of war. They make part of the necessary equipment of an army.

It is true that even these goods, if really intended for sale in the market of Matamoras, would be free of liability: for contraband may be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles, at least, were destined for the use of the rebel forces then occupying Brownsville, and other places in the vicinity.

And contraband merchandise is subject to a different rule in respect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character, destined in fact to a State in rebellion, or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras.

We are obliged to conclude that the portion of the cargo which we have characterized as contraband must be condemned.

And it is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chancellor Kent, thus: 'Contraband articles are infectious, as it is called, and contaminate the whole cargo belonging to the same owners, and the invoice of any particular article is not usually admitted to exempt it from general confiscation.' So much of the cargo of the Peterhoff, therefore, as actually belonged to the owner of the artillery harness, and the other contraband goods, must be also condemned.

Two other questions remain to be disposed of.

The first of these relates to the political status of Redgate, one of the owners of the cargo. It was insisted, in the argument for the government, that this person was an enemy, and that the merchandise owned by him was liable to capture and confiscation as enemy's property.

It appears that he was by birth an Englishman; that he became a citizen of the United States; that he resided in Texas as the outbreak of the rebellion; made his escape; became a resident of Matamoras; had been engaged in trade there, not wholly confined, probably, to Mexico; and was on his return from England with a large quantity of goods, only a small part of which, however, was his own property, with the intention of establishing a mercantile house in that place.

It has been held, by this court, that persons residing in the rebel States at any time during the civil war must be considered as enemies, during such residence, without regard to their personal sentiments or dispositions.33

But this has never held in respect to persons faithful to the Union, who have escaped from those States, and have subsequently resided in the loyal States, or in neutral countries. Such citizens of the United States lost no rights as citizens by reason of temporary and constrained residence in the rebellious portion of the country.

And to this class Redgate seems to have belonged. He cannot, therefore, be regarded as an enemy. If his property was liable to seizure at all on account of his political character, it was as property of a citizen of the United States, proceeding to a State in insurrection. But we see no sufficient ground for distinguishing that portion of the cargo owned by him, as to destination, from any other portion.

The other question relates to costs and expenses.

Formerly conveyance of contraband subjected the ship to forfeiture; but in more modern times, that consequence, in ordinary cases, attaches only to the freight of the contraband merchandise. That consequence only attaches in the present case.

But the fact of such conveyance may be properly taken into consideration, with other circumstances, in determining the question of costs and expenses.

It was the duty of the captain of the Peterhoff, when brought to by the Vanderbilt, to send his papers on board, if required. He refused to do so. The circumstances might well excite suspicion. The captain of a merchant steamer like the Peterhoff is not privileged from search by the fact that he has a government mail on board; on the contrary he is bound by that circumstance to strict performance of neutral duties and to special respect for belligerent rights.

The search led to the belief on the part of the officers of the Vanderbilt that there was contraband on board, destined to the enemy. This belief, it is now apparent, was warranted. It was therefore the duty of the captors to bring the Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so.

On the other hand, not only was the captain in the wrong in the refusal just mentioned, but it appears that papers were destroyed on board his ship at the time of capture. Some papers were burned by a passenger named Mohl, or by his directions. A package was also thrown overboard by direction of the captain. This package is variously described by the witnesses as a heavy sealed package wrapped in loose paper; as a box of papers; and as a packet of despatches sealed up in canvas and weighted with lead. By the captain it is represented as a package belonging to Mohl, and containing a white powder. We are unable to credit this representation. It is highly improbable that, under the circumstances described by the captain, he would have thrown any package overboard at such a time, and with the plain intent of concealing it from the captors, if it contained nothing likely, in his opinion, to prejudice the case of the ship and cargo.

We must say that his conduct was inconsistent with the frankness and good faith to which neutrals, engaged in a commerce open to great suspicion, are most strongly bound. Considering the other facts in the case, however, and the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution.

DECREE ACCORDINGLY.