fifty packages of boots and shoes, which were captured and condemned, and which were the subject of the claim in No. 393. This claim for the cargo, in No. 393, was withdrawn by the claimants by leave of the commission after the completion of the claimants' proofs. In No. 392 proofs were taken before the commission in addition to those taken in the prize court, which were also put before the commission. The position of the Adela, when first summoned by the capturing ressel, as well as when actually captured, was a matter of dispute upon the facts of the case, the witnesses on the part of the claimant giving evidence tending to show that when first summoned, as well as when actually captured, she was within a marine league of the shores of the island of Abaco, while the evidence on the part of the defence tended to show that at both times she was more than that distance from the shore and upon the high seas. On the part of the claimant it was contended that there was no sufficient proof of the Adela being engaged in an unlawful voyage; and also that the capture, being made within British and neutral waters, was unlawful and void, and the owners entitled to make reclamation. On the part of the United States it was maintained that the preponderance of the evidence was in favor of the lawfulness of the capture as made upon the high seas, and not in the neutral waters of Great Britain. The counsel for the United States urged that the doctrine of the sovereignty of the proprietary nation over the sea for a marine league from the shore is founded in the idea of a proper and necessary pro tection to the adjacent coasts, and to the vessels resorting to them for legitimate trade. That in its original inception this doctrine never included the idea that a vessel engaged in an unlawful voyage might protect herself from capture, to which she would be subject on the high seas, by merely skirting the coast of a harborless and substantially uuinhabited island, such as the island of Abaco. That although strictly and technically the coast of such an island might be within the protection of the rule, it was only technically so; and that where a claim is set up for the protection of a vessel actually engaged in an unlawful voyage, and claiming a capture otherwise lawful to be made unlawful by reason of being within a marine league of the shore of such an island, a judicial tribunal should require strict and conclusive proof to bring the vessel within the technical rule, and to satisfy them that the neutrality of the proprietary nation had been in fact violated.. That the burden of proof, therefore, devolved strictly and onerously upon the claimants; and that on the evidence appearing in this case it would be unjust to resolve any doubts which the commission might have in this regard in favor of the claimants. The claim was unanimously disallowed. The bark Hiawatha; Miller & Mosman, No. 398, and Ezekiel McLeod, assignee, No. 399, claimants for the vessel; Watkins & Leigh, No. 400; Dalgetty, DuCroz & Co., No. 401; William T. Marshall, No. 402, and the executors of Charles McEwen, No. 452, claimants for cargo. The Hiawatha was captured by the United States blockading fleet, in Hampton Roads, at the mouth of the James River, on the 20th May, 1861, in attempting to pass through the blockading fleet on an outward voyage from Richmond, Va., for Liverpool. She was taken into the port of New York, and vessel and cargo there libelled in the United States district court, and condemned. (See report of the case in that court, Blatchford's Prize Cases, p. 1.) On appeal, first to the circuit court and thence to the Supreme Court, the decree of the district court was affirmed, the opinion of the Supreme Court being delivered by Mr. Justice Grier, and a dissenting opinion being read by Mr. Justice Nelson, in which Chief Justice Taney and Justices Catron and Clifford concurred. (See report in the Supreme Court under title of "The Prize Cases," 2 Black, 635 to 699.) This was one of the first vessels captured during the war, and one of the first upon the validity of whose capture adjudications were had in the prize courts of both original and appellate jurisdiction. In the Supreme Court, where the case was argued in connection with those of several other vessels captured about the same time, and involving to some extent the same general principles, the question of the validity of the blockade established under the President's proclamations of 19th and 27th April, 1861, (12 Stat. at L., 1258, 1259,) and that of the lia bility of the property of persons domiciled within the insurrectionary States to capture on the high seas as enemy's property, were elaborately argued. The majority of the court sustained the validity of the blockade and the right of capture of property of citizens of the insurrectionary States upon the high seas as enemy's property. The minority of the court held "that no civil war existed between the United States and the States in insurrection till recognized by the act of Congress of 13th July, 1861, (12 Stat. at L., 255;) that the President of the United States does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war; that this power belongs exclusively to the Congress of the United States, and, consequently, that the President had no power to set on foot a blockade under the law of nations; and that the capture of the vessel and cargo in this case and in all cases before us in which the capture occurred before the 13th July, 1861, for breach of blockade or as enemy's prop. erty, are illegal and void, and that the decrees of condemnation should be reversed, and the vessel and cargo restored." (2 Black, 698, 699.) The case of the Hiawatha was this: She sailed from Liverpool on the 11th February, 1861, with a cargo of salt for Richmond, Va., thence to take cargo back to Liverpool. She passed Hampton Roads, at the mouth of the James River, on the 23d April, and arrived at City Point, the port of Richmond, a few miles below that city on the James River, on the 29th April. She completed the discharge of her outward cargo on the 10th May; immediately commenced lading with her return cargo, (consisting principally of tobacco,) and completed this lading on the 14th or 15th May. On the 16th she weighed anchor and attempted to go to sea without pilot or steam-tug, but was prevented by headwinds. On the 17th a tug attempted to take her out of harbor, but was prevented by the breaking of the tow-line. On the 18th she was taken in tow by another steamer and towed down the river to within about twenty miles of Hampton Roads. From this point she floated down with the tide toward the Roads, and on the 20th was boarded by an officer from a United States blockading vessel, who endorsed upon her register this notice: This vessel (the Hiawatha) has been boarded by the United States blockading squadron, and warned not to enter any port in Virginia or south of it. MAY 20, 1861. S. H. BROWN, Blockading Officer, United States Steamer Star. On the same day, and while still floating with the tide in Hampton Roads, she was seized by the United States war-steamer Minnesota, and thereafter taken into port and libelled, as above recited. President Lincoln's proclamation establishing blockade of the ports of Virginia was issued 27th April, 1861, (12 Stat. at L., 1259.) Under that proclamation the blockade of the ports of Virginia upon the Chesapeake Bay and the James River was actually established by Commodore Pendergrast, and a proclamation made of same on the 30th April. On the 8th May, Lord Lyons communicated to Mr. Seward a letter from the British consul at Richmond, dated 5th May, in which the consul had said to Lord Lyons: There are parties here about to load the British ship Hiawatha at City Point for Liverpool, under the impression that she will be allowed free egress by the blockading squadron. I have told persons who are here representing the owners of the ship that I see no difficulty to the ship leaving in ballast; but to this they will not consent, as the ship came here expressly from Liverpool at a nominal freight to load a remunerative cargo back. Lord Lyons stated to Mr. Seward the hardship of the case of the Hiawatha, in case she should be compelled to return home in ballast in consequence of the blockade, of which, of course, her owners could have had no knowledge when they sent her out, and submitted the case for the consideration of the Government of the United States, requesting an early answer. Mr. Seward answered on the 9th May, enclosing a letter from the Sec. retary of the Navy, in which he said: Fifteen days have been specified as a limit for neutrals to leave the ports, after actual blockade has commenced, with or without cargo, and there are yet remaining five or six days for neutrals to leave. With proper diligence on the part of persons inter ested, I see no reason for exemption to any. Lord Lyons again wrote Mr. Seward on the 9th May, acknowledging the receipt of Mr. Seward's letter, and saying: In order to avoid all possible mistake with regard to the Hiawatha, as well as to future cases of the same kind, I venture to request you to inform me whether I am right in concluding, from the statement just quoted, that the date of the shipment of the cargo is immaterial, and that vessels leaving the ports before the expiration of the fifteen days will be allowed to proceed with their cargoes, whether such cargoes were shipped before or after the actual beginning of the effective blockade. This letter was answered by Mr. Seward on May 11, enclosing another letter from the Secretary of the Navy, as follows: In answer to Lord Lyons's letter of the 9th instant, I have the honor to inform you that neutral vessels will be allowed fifteen days to leave port after the actual establishment of the blockade, whether such vessels are with or without cargoes. Lord Lyons responded to Mr. Seward on May 11, thanking him for his prompt information, reciting the correspondence, and saying: I have, consequently, instructed Her Majesty's consuls to advise masters of British vessels that they are at liberty to take cargo on board as well after as before the commencement of the blockade, and that they will be allowed fifteen days to go to sea, whether with or without cargoes, and whether their cargoes be shipped before or after the actual commencement of the effective blockade. On the same day Lord Lyons sent to the British consuls at Richmond and other ports a circular, as follows: Neutral vessels will be allowed fifteen days to leave port after the actual commencement of the blockade, whether such vessels are with or without cargoes, and whether the cargoes were shipped before or after the commencement of the blockade. He also sent, ou the same day, a dispatch to Rear-Admiral Sir A. Milne, of Her Majesty's navy, enclosing, with other documents, copies of the proclamation of the President of April 27, of the notice of blockade by Commodore Pendergrast of April 30, and saying: The general result of inquiries made by me or other foreign ministers here, as to the manner in which the blockade will be conducted, appears to be 1. That the date of the commencement of the blockade in each locality will be fixed by the issue of a notice by the commanding officer of the squadron appointed to blockade it. It does not, however, appear to be intended that such notice shall be officially communicated to the governments of neutral nations, or to their representatives in this country. 2. That fifteen days from the beginning of the effective blockade will be allowed, in every case, for neutral vessels already in port to put to sea. 3. That, until the fifteen days have expired, neutral vessels will be allowed to come out with or without cargoes, and whether their cargoes were shipped before or after the actual commencement of the blockade. 4. That, except in the last-mentioned particular, the ordinary rules of blockade will be strictly enforced. 5. The armed vessels of the neutral states will have the right to enter and depart from the blockaded ports. I continue to be of opinion that, provided the blockade be effective and be carried on in conformity with the law of nations, we have no other course, in the absence of positive instructions from Her Majesty's government, than to recognize it. In the decision of the cause in the district court, Judge Betts expressed the opinion that the correspondence between Mr. Seward and Lord Lyons did not constitute any relaxation of the general rule limiting the right of departure of neutral vessels from a blockaded port to such cargo as had been laden before receiving notice of the blockade; so that, if the Hiawatha had departed within the fifteen days allowed for departure after the establishment of the blockade, she would not have been entitled to take out the cargo laden after knowledge of the blockade, (Blatchford's Prize Cases, p. 20.) The Supreme Court, however, distinctly overruled Judge Betts upon this point, saying: After a careful examination of the correspondence of the State and Navy Departments, found in the record, we are not satisfied that the British minister erred in the construction he put upon it, which was that a license was given to all vessels in the blockaded ports to depart with their cargoes within fifteen days after the blockade was established, whether the cargoes were taken on board before or after the notice of the blockade. All reasonable doubts should be resolved in favor of the claimants. Any other course would be inconsistent with the right administration of the law and the character of a just government. The British consul at Richmond gave to the master of the Hiawatha, on the 15th May, a certificate stating that, according to the best information attainable by him, the effective blockade at the mouth of the James River began on the 2d May. After the capture of the vessel, correspondence ensued between Lord Lyons and Mr. Seward, in which Lord Lyons earnestly recommended the case of the Hiawatha to the favorable consideration of the United States Government, saying that it appeared "that the master of this vessel was innocent of any intention to break the blockade, and that his not having passed the blockading squadron earlier was due to erroneous information or unavoidable detentions." He also called attention to the cases of the Haxall and the Octavia, and expressed the hope that the Government of the United States would be disposed to extend to the Hiawatha the same favor which had been shown to those vessels. In another letter to Mr. Seward, Lord Lyons said: I do not, of course, consider myself competent to make any comments upon the decision of Judge Betts on questions of law; nor do I ground my present application upon legal considerations at all. My desire is, in conformity with the learned judge's own suggestion, to obtain relief for the owners of the Hiawatha by an appeal to the equity and indulgence of the Government of the United States. And again : That, by giving relief to the memorialists, the United States Government would evince a spirit of comity and generosity which would be highly appreciated by the government of Her Majesty. In the cases of the Tropic Wind, the Haxall and the Octavia, those were vessels captured about the same time with the Hiawatha, and under similar circumstances had been released by order of the Government, on the application of parties interested or their respective governments, the Tropic Wind after judgment of condemnation, and the Haxall and Octavia before judgment. |