Henry Billings Brown

“ What was more natural, then, than that our government would approve all efforts to furnish food to those famishing people, and to aid them in escaping from the seat of war? It appears that the Adula, after the declaration of war, had made several voyages to Cuban ports, with the express permission of the American consul at Kingston; had brought away several hundred refugees, chiefly women and children, and was engaged in a similar errand when seized. ”

“ So, too, the conversation that Solis, the charterer, had with the United States consul at Kingston, in which he sought to obtain a passport for the voyage, and in which he informed the consul of the object of the voyage, and of his intention to ask permission or the American admiral to enter the port, shows that no clandestine or improper voyage was intended. A person designing to violate a blockade assuredly would not inform the consul of the nation whose vessels were maintaining the blockade of the time and circumstances of his voyage. ”

“ On the contrary, by the successive Presidential proclamations of blockade, that port was left free and open for the entrance of neutral vessels. Indeed, it may be fairly said that, in the special circumstances of our war with Spain, those proclamations were intended to permit, if not to invite, the continuance of commerce in goods, not contraband, in all the Cuban ports not included within the limits defined. The United States were not carrying on warlike operations against the people of Cuba. ”

“ When she approached the harbor she was hailed by a war vessel, the Vixen, and was told to proceed. If, by telling the Adula to proceed, the commander of the Vixen is to be understood as taking charge of the Adula as engaged in an attempt to break the blockade, there was, of course, no warning. If, what seems the natural import of the language, the commander of the Vixen gave the neutral vessel permission to enter the harbor, not only was there no warning, but such permission protected her from the subsequent seizure after she had entered and anchored in the harbor. ”

“ They were declared, by the joint resolution of the two houses of Congress, to be free and independent, and the government of Spain was called upon to relinquish its government, and to withdraw its land and naval forces from Cuba and Cuban waters. It was notorious that great misery and destitution had been caused among the inhabitants by the military operations of the Spanish army in a long and fruitless effort to subdue the revolutionary movement. Indeed, that condition of the people of Cuba was one of the principal inducements to the United States to intervene on their behalf. ”

“ The admiral's want of power to override the policy and intentions of the government cannot be supplied by imputing to the vessel a knowledge of an actual occupation of the port by armed vessels of the United States. Such occupation would be no reason why neutral ships, not carrying contraband cargo, might not fearlessly approach and enter the harbor. ”

“ It is scarcely necessary to say that a personal passport given to Solis, a Cuban, more than a year before the war, cannot be regarded as intended as a passport or protection to a British vessel, sailing under a British flag, on an errand friendly to the United States and their allies. And as respects the permission Solis had obtained from the Spanish consul to enter the cities to which he was bound, 'and take passengers, refugees,' such permission was in furtherance of humanity, and not of any warlike object or interest. ”

“ In view of the operations then being carried on for the purpose of destroying or capturing the Spanish fleet and reducing Santiago, we think it was competent for Admiral Sampson to establish a blockade there and at Guantanamo, as an adjunct to such operations. Indeed, it would seem to have been a necessity that restrictions should be placed upon the power of neutrals to carry supplies and intelligence to the enemy, as they would be quite sure to do, if their ships were given free ingress and egress from these harbors. ”

“ Neutrals then have the right to begin a voyage to a blockaded port in order to see if the blockade still continues. They are only guilty when, while the blockade continues, they actually endeavor to break it.'
We cannot, however, accept this opinion as overruling in any particular the prior decisions of this court in the cases above cited, to the effect that a departure for a blockaded port with intent to violate the blockade renders the vessel liable to seizure. When Congress has spoken upon this subject it will be time enough for this court to act. ”

“ A declaration of blockade is a high act of sovereignty; and a commander of a King's ship is not to extend it.'
'Where a blockade has been declared by the government, the commander of the blockading squadron has no discretionary power to extend its limits. If he prohibits neutral ships from entering ports not embraced in the terms of the blockade he was appointed to enforce, the warning is illegal, and no penalty is incurred by the neutral master by whom it is disregarded.' 1 Duer, Marine Ins. ”

“ You must be careful on your arrival there not to interfere or in any way make any observations or sketches or anything you may see or hear of, but adhere strictly to the duties of your ship. At Guantanamo it is likely there may be some difficulty in obtaining a pilot, and if the commanding officer gives you permission to proceed it is just possible that he may be able to tell you where you can obtain the services of a pilot to go in.'
On the afternoon of the 29th June the Adula approached the harbor of Guantanamo, and there met the United States war vessel Vixen. ”

“ A proclaimation had been issued June 27th, establishing a blockade of all ports on the southern coast of Cuba between Cape Frances on the west and Cape Cruz on the east, but as both Santiago and Guantanamo are to the eastward of Cape Cruz, they were not included. It appears, however, that blockades of Santiago and Guantanamo were established in the early part of June by order of Admiral Sampson, commander of the naval forces then investing the ports on the southern coast of Cuba, and were maintained as actual and effective blockades until after the capture of the Adula. ”

“ Mr. Solis, who had chartered the Adula for this voyage, testified that he was told, while on board the Adula, that the blockade of Guantanamo was published on the 27th, the day before, but that he had not heard of it before he left Kingston, though he had heard, while in Kingston, that there were some war ships at Guantanamo. ”

“ It was testified by Captain Yeates before the prize commission as follows: 'We passed one vessel. I think it was the Vixen. He fired a gun. I stopped immediately, and he told me to proceed. He did not stop his engines at all; just steamed right on by. Captain Forwood told me I should see vessels of war around there. When the Vixen hailed me we were about half a mile from the entrance of the bay, and about 4 miles from where we anchored.' This evidence was not contradicted, and, in respect to the permission to proceed, was corroborated by one of the crew of the Adula. ”

“ Justice Story:
'It is sufficient to declare . . . that we hold that the sailing on a voyage, under the license and passport of protection of the enemy in furtherance of his views or interests, constitutes such an act of illegality as subjects the ship and cargo to confiscation as prize of war.'
Surely ”

“ She left June 15th, with a letter of instructions to the captain to proceed to the fleet off Cienfuegos, then under a public blockade, to ask permission from them to enter the port, and if granted, to go in, and if not granted, to return to Jamaica. She arrived at Cienfuegos June 17th; landed some provisions which had been shipped for her passengers, found no war ships there, and sailed away on the 19th with only ninety-eight passengers. Sixty miles S. S. E. from Cienfuegos she was stopped by the U.S. S. Yankee, and an officer sent on board. ”

“ The legality of a simple or actual blockade as distinguished from a public or presidential blockade is noticed by writers upon international law, and is said by Halleck to be 'constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts it ceases when they terminate ”

“ If, after such warning, the neutral vessels, disregarding it, attempt to enter, they are liable to seizure.
As was said in the case of The Circassian, 2 Wall. 150, sub nom. Hunter v. United States, 17 L. ed. 799, which was a case where the blockade had been proclaimed by the American government: 'There is a distinction between simple and public blockades which supports this conclusion. ”

“ The fact of her sailing under a Spanish passport-in fact, an enemy's license-is not devoid of significance. Indeed, we have in several cases regarded this as sufficient ground for condemnation. The Julia, 8 Cranch, 181, 3 L. ed. 528; The Aurora, 8 Cranch, 203, 3 L. ed. 536; The Hiram, 1 Wheat. 440, 4 L. ed. 131; The Ariadne, 2 Wheat. 143, 4 L. ed. 205. This passport gave the Adula authority to enter the Cuban ports and take away refugees, and it is a circumstance worthy of notice that it could not be found when the vessel was captured. ”

“ That the Adula was chartered to a Spanish subject for a voyage to Guantanamo, Santiago, or Manzanillo, for the purpose of bringing away refugees, and that such voyage was primarily, at least, a commercial one for the personal profit of the charterer. During such charter she was to a certain extent, pro hac vice, a Spanish vessel, and a notice to Solis of the existence of the blockade was a notice to the vessel. The Ranger, 6 Co. Rob. 126; The Jonge Emilia, 3 C. Rob. 52; The Napoleon Blatchf. Prize Cas. 296, Fed. Cas. No. ”

“ Fry, 5 Cranch, 335, 3 L. ed. 117; The Circassian, 2 Wall. 135, sub nom. Hunter v. United States, 17 L. ed. 796; The Frederick Molke, 1 C. Rob. 86; The Columbia, 1 C. Rob. 154; The Fortune, 2 C. Rob. 94 ”