The Adula

after stating the case, delivered the opinion of the court.

The rectitude of the decree of the District Court condemning the Adula as prize of war depends upon the existence of a lawful and effective blockade at Guantanamo, the'knowledge of such blockade by those in charge of the vessel, and their intent in making the voyage from Kingston.

1. No blockade of Guantanamo was ever proclaimed by the President. A proclamation had been issued June 27, 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, com-, mander 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.

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 Ilalleck 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; its existence must, therefore, in all cases, be established by clear and decisive evidence.” (Ilalleck Int. L. chap. 23, sec. 10.) A defacto blockade was also recognized as legal by this court in the case of The Circassian, 2 Wall. 135 , 150, in which the question arose as to the blockade of New Orleans during the civil war. In. delivering the opinion of the court, the Chief Justice observed: “There is

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

But it is contended that at the time of the capture, the port of Guantanamo was completely in the possession and control of the United States, and therefore' that the blockade had been terminated. It appears, however, that Guantanamo is eighteen miles from the mouth of Guantanamo Bay. Access to it is obtained either by a small river emptying into the upper bay, or by rail.from Caimanera, a town on the west side of the upper bay. It- seems that the Marblehead and the Yankee were sent to Guantanamo on June 7; entered the harbor and took possession of the lower bay for the use of American vessels ; that the Panther and Yosemite were sent there on the 10th, and on the 12th the torpedo boat Porter arrived from Guantanamo with news of a land battle, and from that time the harbor was occupied by naval vessels, and by a party of marines who held the crest of a hill on the west side of the harbor near its entrance, and the side of the hill facing the harbor. But the town of Guantanamo, near the head of the bay, was still held by the Spanish forces, as were several other positions' •in the neighborhood. The campaign in the vicinity was in active progress, and encounters between the United States and Spanish troops were of frequent-occurrence.

In view of these facts we are of opinion that, as the city of Guantanamo was still held by the Spaniards, and as our troops occupied only the mouth of the bay, the blockade was still operative as against vessels bound for the city of Guantanamo. Here again the case of The Circassian, 2 Wall. 135 , is decisive. The Circassian was captured May 4, 1862, for an attempted

Granting the existence of a lawful and sufficient blockade at Guantanamo, its legal effect was a closing of the port, and an interdiction of the entrance of all vessels of whatever nationality or business. It is well described by Sir William Scott in The Vrouw Judith, 1 O. Bob. 126,12S, “ as a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is inte ided to suspend the entire commerce of that place, and a neutral is no more at liberty to

In this connection we are cited by counsel for the Adula to a change in the law said to have been effected by the adhesion of this Government, at the beginning of the war, to the

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. We cannot change bur ruling's to conform to the opinions of foreign writers as to what they suppose to be the existing law. upon the subject.

We have not overlooked in this connection the provision contained in Art. 18 of Jay’s treaty of 1794, to the effect that “ whereas, it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same • is either besieged, blockaded or invested, it is agreed, that every vessel sb circumstanced, may be turned away from such port or place, but she shall not be detained nor her cargo, if not contraband, confiscated, unless after notice she shall again attempt to enter.” Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185 . Waiving the question whether this clause of Jay’s treaty was abrogated by the war of 1812, and accepting it as a cor

2. The questions concerning the notification of, and the intent to, violate blockade depend largely upon the same testimony, and may be properly disposed of together. There is no doubt that the .Adula belonged to a British corporation, the Atlas Steamship Company; was registered in the name of the managing director of such corporation; f|ew the British flag, and prior to the Spanish-Ámerican war was engaged in general trade between Kingston and other ports on the coast of Jamaica, in connection with other steamers of the same line from New York, and from time to time had made voyages to Cuban ports. After the breaking out of the war the steamer was chartered by various persons, in the intervals of its regular work for voyages to Cuba. On May 7, in pursuance of a verbal arrangement between the agent of the steamship company and the. American consul, the Adula was sent to Cienfuegos in Cuba to bring away refugees. On arrival off Cienfuegos she was boarded by officers of the IT. S. S. Marblehead, who, upon being shown the permit and the ship’s papers, allowed her to proceed, though the officers served the master with a

On May 16, she was chartered by a Cuban refugee to proceed to Santiago; arrived there the following day, and returned with 200 passengers. No war ships were off Santiago at that time. She arrived at Kingston on the 19th, and landed her passengers.

On May 21, she was again chartered to go to Cienfuegos, Having a permit from "Washington, through the consul, to pass the blockade. She reached the blockáding fleet on the 23d, was boarded by a boat from one of the vessels, and was again given permission to proceed; was arrested upon suspicion by the Spanish authorities in the port of Cienfuegos, but after a detention of sixty hours was released. She sailed again on May 26 directly for Kingston; saw no war ships in sight, and arrived at Kingston on May 28.

After making two of her ordinary coasting voyages around Jamaica, she was offered a further .charter for Cienfuegos, but could not obtain the permission of the American consul, who told the master he had no authority to grant it. She left June 15, 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 17; landed some provisions which had been shipped for her passengers, found no war ships there, and sailed awajr 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 master showed the boarding officer his instructions and the ship’s papers, as well as the passenger list ; was informed that Cienfuegos was blockaded, and that he must not enter it again. She arrived in Kingston on June 21; proceeded around the island on her usual coasting trip, and returned to Kingston on the 27th.

She was chartered for her last voyage June 28, by one Solis,

“ I knew that there was a condition of war existing between. America and Spain on the 21st. They told me on board the Adula that the blockade of Guantanamo was published on the 27th, the day before. I had not heard it before I left Kingston. I did not know officially Guantanamo was blockaded. On board the Adula I heard that on the 27th there was issued

It.further appeared that the American consul warned Mr. Forljyood, the agent of the ship at Kingston, of the existence of the blockade in the following language, as stated by the agent himself: “ ‘ Well, Forwood, I would not advise you to let the ship go; they won’t let her into Guantanamo, and they will be watching for her.’ I said to him, ‘ Oh, Dent, let me show you the captain’s instructions. He has got orders to go to the fleet there and ask'their permission to take some refugees.’ ‘ Well,’ he said, ‘I don’t know, but they will be watching for her, and I think that Señor Solis is a Spanish agent, carrying $300,000 in gold to. buy over'the rebels in the American camp.’ I told him that I had inquired about the man, and that it was one of the usual Kingston yarns.” It also appears that Mr. Forwood knew that.Mr. Solis was a Spaniard, and had been shipping supplies to'Cuban ports. After taking on board a large supply

In his testimony before the prize commissioners, Captain Yeates, master of the Adula, stated that he was stopped by the Vixen about a half a mile from the entrancevto-the bay and permitted to proceed, and that it was not until after he had anchored that he was acquainted with the blockade of the harbor. One of the crew testified somewhat to the contrary and swore that “ about three days before I left Kingston I heard that Guantanamo was blockaded; I heard it from people around the streets; I did not see it; I heard it was in the papers; I never heard any of the officers of the Adula or people on board talking about Guantanamo being blockaded, and I don’t know exactly whether the owner or master or officers of the ship Adula knew that Guantanamo was blockaded. I knew about it, but I don’t know anything about them. I don’t know how I found it out, but I heard it on the streets of Kingston.” He also swore “ that at that time he went up to the mouth of the harbor, and at that time, when we got to Guantanamo, we found the war ships there blockading the harbor.” A small cruiser, the Vixen, “ ran up across our bow and the captain of the cruiser asked us: ‘ Didn’t you sight the war ships down at Santiago?’ and the captain said, ‘Yes.’ And .the captain stopped, and he said : ‘ Didn’t you hear- that Guantanamo was

Among these extracts from The Gleaner of July lé, 1898, is the following, apparently telegraphed from London: “ A dispatch boat off Santiago reports that the Americans now hold thirty-five miles of the coast east of Santiago, including Guantanamo harbor, and that 20,000 Spanish troops at Santiago are preparing to desperately resist the Americans, who have landed 3000 rifles, 300,000 rounds of ammunition, and large stores of provisions; ” and the following from the issue of June 25 : “ On board the Adula, which arrived from Cienfuegos this week, there was an individual officially appointed by the Captain General in Cuba to make arrangements in Jamaica for regularly supplying the Spanish troops with provisions; in fact, to make Jamaica a base for Spanish purposes.”

In this connection it would seem from the report of the Bureau of Navigation that the consul at Kingston telegraphed to,"Washington that the Under Secretary of the Captain General of Cuba and certain Spanish naval officers “ came aboard the Adulawith, it is supposed, $250,000 to purchase provisions to be taken to Manzanillo for Cervera. . . . Extensive preparations being made for shipping provisions to Cuba.”

In a letter from Captain Yeates to his parents, under date of July 13, and apparently written while the Adula was at Savannah, he says: “ And now to tell you dear ones how it is

As tending to show.the good faith of this expedition, and more particularly the owners of the Adula, much reliance is placed upon the letter of Mr. Forwood to Captain Yeates of-June 28, the day upon which the Adula left Kingston,' in which - he instructs him, in case he finds American war ships off Guantanamo, to stop immediately upon being signalled, and communicate to the commanding officer the object of the voyage, and to be careful upon his arrival “ not to interfere, or in any way make any observations or sketches of anything you may see or hear .of, but adhere strictly to the duties of your ship,” and • observe the same precautions off Santiago. In this letter he also instructs him not to allow any provisions to leave the ship, or to do anything which could be interpreted as a breach of faith in being allowed to pass the blockade and enter the ports. While this letter doubtless tends to show good' faith on the part of Mr. Forwood,' still it was written with full information from Mr. Solis that the consul had refused to give him a passport, without permission from "the American authorities in Washington. That Mr. Forwood recognized the necessity Of an authority from Washington in order to pass the blockade is shown by his letter to Captain Walker of May 21, 1898, in reference to one of the voyages to Cienfuegos, in which he says: “In giving this-letter to the blockade, be sure and ask

From all the testimony in the case it appears very clear:

That Guantanamo was 'actually and effectively blockaded by orders of Admiral Sampson from June 7 until after the capture of the Adula;

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 hao vice, a Spanish vessel, and a notice to Solis of the existence of the blockade was a notice to the vessel. The Banger, 6 C. Eob. 126; The Yonge Emilia, 3 C. Rob. 52 ; The Napoleon, Blatch. Prize Cases, 296. 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 India, 8 Cranch, 181 ; The Aurora, 8 Cranch, 203 ; The Hiram, 1 Wheat. 440 ; The Ariadne, 2 Wheat. 143 . 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. Solis acknowledged its existence, but made no effort to account for its loss-;

Both Solis himself and the Adula had been previously engaged in similar enterprises to the coast of Cuba, and were chargeable with notice, not.only of war between the United States and Spain, but with the fact of military , and naval operations upon the southern coast of Cuba;

The fact of such war, that the object of it was the expulsion of the Spanish forces from Cuba, and that military and naval operations were being carried on by us with that object in view, must have been matters of common knowledge in ■Kingston, as well as the fact that the commerce with the southern .ports of Cuba' was likely to be interrupted, and that all intercourse with such ports would become dangerous in consequence of such war;.

While the mission of the Adula was not an unfriendly one

That upon arrival off Santiago the blockading fleet was plainly visible, and we think there is a preponderance of evidence to the effect that both Solis and the master of the Adula knew of the actual blockade, that it was generally known in Kingston before she sailed, and that the Adula was chargeable with a breach of it, notwithstanding the'letter of instructions from Mr. For wood to Captain Yeates. As the blockade had been in existence since June 7, it is scarcely' possible that, in the three weeks that elapsed before the Adula sailed, it should not have been known in Kingston, which was only a day’s trip from the southern coast of Cuba, and with which it appears to have been in frequent communication. This probability is confirmed by the direct testimony of the sailor Morris, that it was matter of common talk in Kingston. The testimony of Solis, that he did not know “ officially ” that Guantanamo was blockaded, by which we are to understand that it had not been officially, proclaimed, is perfectly consistent with a personal knowledge of the actual fact. His statement seems to be lit-. tie more than a convenient evasion. Upon the principle already stated his knowledge was the knowledge of the ship.

We think the facts herein stated outweigh the general statement of the officers that they had not heard of the blockade.

3. There w.as no error in denying the motion of the claimant to take further proofs. It appears from the opinion of the court that “ the hearing upon the proceedings for condemnation was upon the evidence 'afforded by the examination of the

The motion to take further proof was made upon the affidavit of Eobert Gemmell, the New York agent of the company, the statement of W. P. Forwood, the Kingston agent, annexed thereto, as well as his own affidavit and exhibits, and upon the counter testimony of Anderson, Ellenberg and Gill taken de bene esse. Upon the hearing of this motion the court considered the allegations of Forwood, attached to Gemmell’s affidavit, as if Forwood had testified upon depositions regularly taken, giving-due weight to the same in connection with other evidence in the case,- and was of opinion that the evidence as it stood was not susceptible of any satisfactory explanation; and comparing the proof proposed to be brought forward with that already in the case. Came to the conclusion that the legal effect- of the facts before the court could not be varied by the explanation offered. The motion was denied. In considering this case we have also given effect to these affidavits, and have come to the conclusion that, if they are to be taken as true, and the further proofs, if taken, would support them, they would not change our opinion with respect to the affirmance of the decree.

If an examination of the. ship’s papers and of the crew, taken in preparatorio, upon which the cause is first heard in the District Court, make a case for condemnation, the order for further proof is, as stated in The Gray Jacket, 5 Wall. 312 , 368, always made with extreme caution, and only where the interests of justice clearly require it. If the ship’s papers and the testimony of the crew do not justify an acquittal, it is improbable that a defence would be established by further proof; and as the interest of all parties require that prize causes be quickly disposed of, it is only where the testimony in preparatorio makes a case of grave doubt, that the court orders the taking of further proofs. The Pizarro, 2 Wheat. 227 ; The Amiable Isabella, 6 Wheat. 1 , 77; Benedict’s Adm’y,.sec. 512 a; Story on Prize Courts, 17.

These remarks are specially pertinent to the offer of further proof that, while Solis owed allegiance to the Queen of Spain, .yet, that he left Cuba soon after the war broke out, took no part in the hostilities, but on the contrary had done all in his-power while he remained in Cuba to assist citizens of the United States residing there; had sided with the natives of Cuba, and was desirous that a government should be established in the island under the auspices of the United States. As '.was observed in the very satisfactory opinion of the District Judge in this case, this evidence was altogether irrelevant to the case of the Adula, and was, to a certain extent, a contradiction of his testimony before the prize commissioners that he was a loyal subject of Spain, bore a Spanish passport, and carried a bill of health viséd by the Spanish consul at Kingston. It would throw the whole practice in prize cases into confusion if the testimony, taken in preparatorio, when the facts are fresh in the minds of the witnesses, were subject to be contradicted by the same witnesses after its weak points had been developed. It was said by Mr. Justice Story in The Pizarro, 2 Wheat. 227 : “ Nor should the captured crew have been permitted to be reexamined in court. íhey are bound to declare the whole truth upon the first examination; and if they fraudulently suppress any material facets, they ought not to be indulged with an opportunity to disclose what , they please, or to give color to their former statements piter counsel has been taken, and they know the pressure of the cause. Public policy and justice

Upon the whole,-we think the decree of the District Court was correct, and it is therefore

Affirmed

Me. Justice Shiras, with whom concurred Me. Justice Gray, Mr. Justice White and Mr. Justice Peckham, dissenting.

Tcannot concur in thé judgment of the court in this case, and shall state my views briefly, without entering at length ■upon a discussion in support of them.

■ By a joint resolution of the Senate and House of Bepresentatives.of the United States, approved April'20, 1898, it was declared “ That the people of the Island of Cuba are, .and of right ought to be, free- and independent.” “ That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the Island of Cuba, and withdraw its land and naval forces from Cuba and.Cuban waters.” “That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States to such extent as may be necessary to carry these resolutions into effect.” “ That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.” 30 Stat. 738 .

By an act approved April 25,1898, Congress declared “ That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, a.d. 1898, includ-ing said day, between the United States of America and the Kingdom of Spain.” 30 Stat. 361 , c. 189.

On April 22, a blockade of the north coast of Cuba between Cardenas and Bahia Honda, and of Oienfuegos on the south'

The Adula was a British vessel, and on June 28 she left the British port of Kingston, in the Island of Jamaica, bound, according to the instructions from the agent of the Atlas Steamship Company, the owners, to Captain Yeates, the master of the vessel, directly to the port of Guantanamo. Among the instructions, found on the vessel when she was captured, were the following:

“I enclose herein a copy of the agreement under which ■your vessel is proceeding on, and on board the ship will be the charterer, to whom I now introduce you, Mr. José B. Solis, and I will ask you to showT'him every attention on the voyage.'

“ You will see by a perusal of the agreement that you are on a voyage wholly and solely for the conveyance of refugees from the ports named to Kingston.

“On your arrival at Guantanamo, to which port you will proceed direct, you will find, no doubt, American war ships off the port. You will, when signalled to, stop immediately and communicate to the commanding officer the voyage that you are on, and in fact you can show him these sailing orders, and I do not think that the commanding officer will make any trouble whatever to your continuing the voyage into the port. You must be careful on your arrival there not to-interfere or in any way make any observations or sketches of 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 comnianding 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 Yixen. It was testified by Captain Yeates before

After the vessel had entered and anchored in the bay she was seized by the Marblehead, a war ship of the United States, which was lying inside the bay, and was sent to Savannah, where, on July 28, a decree of condemnation was entered against her. No goods of a contraband character were on the vessel.

Upon these admitted facts, there was no duly constituted blockade of Guantanamo existing when the Adula sailed for and entered that port.

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. 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.

It may be well here to refer to the message of the President

“Our people have beheld a once prosperous community reduced to comparative want, its lucrative commerce virtually paralyzed, its fields laid waste, its mills in ruins, and its people-perishing by tens of -thousands from hunger and destitution. . . . The policy of devastation and concentration, inaugurated by the Captain General’s bando of October 21, 1896, in the province of Pinar del Rio, was thence extended to embrace all of the island to which the power of the Spanish arms was able to reach by occupation or by military operations. The peasantry, including all dwelling in the open agricultural interior, were driven into the garrison towns or isolated places held by the troops.”

And, after reciting the fact that he had made an appeal to the American people to furnish succor to the starving sufferers in Cuba, the President concluded:

“ In view of these facts and of these considerations I ask the Congress to authorize and empower the President to take measures to secure a full and final termination of hostilities between the Government of Spain and the people of Cuba, and to secure in the island the establishment of a stable government, capable of maintaining order and observing its international obligations, insuring peace and tranquillity and the security' of its citizens as well as of our own, and to use the • military and naval forces of the United States as may be necessary for these purposes. And in .the interest of humanity and to aid in preserving the lives of the starving people of the island, I recommend that the distribution of food and supplies be continued, and that an appropriation be made out of the public treasury to supplement the charity of our citizens.”

The policy of our Government, in respect to the rights of neutrals, was further made to appear in the President’s proclamation of April 26, 1898, declaring our adhesion to the rules of the Declaration of Paris, whereby important modifications, in- recognition of the rights of neutrals and of principles of humanity, were introduced into international law.

What was more natural, then, than-that our Government

It is, however, claimed that an actual blockade of Guantanamo had been established by Admiral Sampson early in June, which was in existence at the time the Adula entered that port, and that her mastei had knowledge of such blockade before leaving Kingston.

Ta declare a blockade effective against neutrals not carrying contraband goods is said by all the authorities to be one of the highest acts of sovereignty, not to be resorted to except for reasons based on well-known principles of modern warfare, and. to be proclaimed so as to give full notice to friendly and neutral. nations.

As was said by this court, through Mr. Justice Grier,, in Prize cases, 2 Black, 635 , 665: “Neutrals have a right to challenge the existence of a blockade de facto, and also the authority' of ■ the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent, engaged in actual war, to use this method of coercion, for the purpose of subduing the enemy. . . . That the President, as the executive .chief of the Government and commander-in-chief of the Army and Navy, was the proper person to make such notification, has not been and cannot be disputed.”

So it was held by Sir William Scott, in The Heririck and Maria, 1 Rob. 123 , 125, that “notification of a blockade is an act qf high sovereignty, and not to be extended by those employed to carry it into execution. . . . 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 discretion

“A declaration of blockade is a high act of sovereignty, and it is usually made directly by the government to which the blockading squadron belongs. A blockade is however in some cases declared by an officer of a belligerent power, and when so declared it will affect the subjects of neutral nations as far as it is authorized, or adopted and ratified, by his government. The implied authority in this respect vested in a naval commander is much greater at a distance from his government than when he is near it. To affect neutral nations, it must be laid by competent authority, and they are affected only in the extent to which it is so laid.” 1 Phillips on .Insurance, 466.-

As it does not appear that the Government delegated any authority to Admiral Sampson to declare a blockade of the port of Guantanamo, but declared a limited and specified blockade of portions of the Cuban coast by Presidential proclamation, leaving the port in question free and open to neutral commerce, in goods not contraband, it follows that for Admiral Sampson to declare a blockade of such port would have been, on his part, an effort to defeat the policy of his Government, which, as we have seen, was shown, by the proclamations and messages of the President, to have intended to leave open a large portion of the- Cuban coast, and ports included therein, to neutral and friendly commerce, designed to furnish food to our starving allies, and to enable their women and children to flee from the oppression under which they were suffering.

Moreover, it does not appear that Admiral Sampson claimed or exercised any right to declare a blockade of Guantanamo. Doubtless he occupied tha,t bay and its adjacent waters with 'his war vessels, and that gave him a right to visit and search even neutral vessels, to discover whether they carried contraband goods. But this did not warrant any vessel of hit

But, even if it were conceded that the American commander could establish, without proclamation, a valid actual blockade of the port in question, it would still be true, in my opinion, that the seizure of the Adula was contrary to well-established principles of international law.

When a blockade of a given coast or port of one belligerent has been declared by the sovereign power of another, all vessels of neutral or friendly nations are thereby supposed to be visited .with notice of such blockade, and it has been held that if they sailed for the blockaded port, with the intent to enter it, and approach it for that purpose, they are subject to seizure and condemnation, and that they cannot even approach the blockaded port for the purpose of making inquiries of the blockading vessels, since such liberty might lead to attempts to yiolate the blockade under pretext of approaching for the purpose of making such inquiries. The Cheshire, 3 Wall. 231 .

But, in the case of a blockade established by a naval officer, acting upon his own discretion, without governmental proclamation, neutrals are not visited with implied' -notice of the existence of such a blockade, and they may rightfully sail-for such a blockaded port, and if, when approaching it, armed vessels are seen to be in its immediate neighborhood, they may apply to such vessels for information and for leave to enter, without subjecting themselves to capture. The duty of the blockading squadron,'if objection exists to permitting neutral vessels to enter, is to warn them off. 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. 135 , 150, 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. ■A simple blockade may be established by a naval officer, acting upon his own discretion, or under direction of superiors, without governmental notification; while a public blockade is

In Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185 , 198, it was held that the fact of clearing out for a blockaded port is, in itself, innocent, unless accompanied by other incidents; that the offence consists in persisting in attempting to enter: the interdicted port after having been wrarned-; and it was said by Chief Justice Marshall:

“ The right to treat the vessel as an enemy is declared by Vattel to be founded on the attempt to enter, and certainly this attempt must be made by a person knowing the fact. But this subject has been precisely regulated by the treaty between the United States and Great Britain, which was in force when this condemnation took place. That treaty contains the following clause:

“ ‘ And whereas it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper.’

“ This treaty is conceived to be a correct exposition of the law of nations ; certainly it is admitted by the parties to it, as between themselves, to be a correct exposition of that law, or

to constitute a rule in the place of it. Neither the law of nations nor the treaty admits of the condemnation of the neutral vessel for the intention to enter a blockaded port, unconnected with any fact.”

The distinction between a blockade declared by a government and a blockade de facto is thus- stated by Chancellor Kent:

“A notice to a foreign government is a notice to all the individuals of that nation ; and they are not permitted to aver ignorance of it, because it is the duty of the neutral government to communicate the notice to their people.

■ “ In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this difference between a blockade, regularly notified, and one without, such notice, that, in the former case, the ’ act of sailing for the blockaded port, with the intent to evade it, or to enter it contingently, amounts, from the very commencement of the voyage, to a breach of the blockade; for the port is to be considered as closed up, until the blockade be formally revoked, or actually raised; whereas* in the latter case of a blockade de facto, the ignorance of the party as to' its continuance may be received as an excuse for sailing to the blockaded- place, on a doubtful; and provisional destination.”

It should be noted that the American cases cited, on behalf of the captors, to the effect that sailing from a neutral port to-a blockaded port is, -in itself, a violation of the blockade, were cases in which there had been a Presidential proclamation, of which neutral vessels were bound to take notice. The fíircassian, .2 Wall.135; The Admiral, 3 Wall. 603 .

It should further be considered that in the President’s proclamation of April 22, 1898, establishing the extent of the blockade, there was contained the following provision:

“Any neutral vessel approaching any of said ports, or attempting to leave the same, without notice or knowledge of the establishment of such blockade, will be duly warned by the commander of the blockading forces* who will indorse on her register the fact, and the date, of such warning where such instrument was made; and if the same vessel shall again

attempt to enter any blockaded port she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize, as may be deemed advisable.” 30 Stat. 1769 .

Of-course, if the blockade of Guantanamo was illegal, as inconsistent with the terms' and intent of the President’s proclamations, no consideration of the evidence regarding the movements of the vessel is called for, and it is a clear case for restitution. In such a case, no importance can be ascribed to any supposed notice to the owners of • the ship.' 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.

If, however, the .other view be taken, namely, that it was competent for the Admiral, of his own motion, to establish a blockade, still, as we have seen, neutral vessels were entitled, on principle and authority, to a warning by the blockading squadron, and could only become lawful prize by disregarding the warning, and renewing the attempt to enter. Mere •knowledge by the neutral vessel that vessels of war occupied the harbor and adjacent waters would not constitute notice .'or knowledge of a blockade; she would' be entitled to an actual warning. Maryland Ins. Co. v. Woods, 6 Cranch, 29 .

The Adula received no such warning. ‘ "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.

As already said, if the blockade had been regularly proclaimed by the United States government, the Adula, as a neutral vessel, if aware of the blockade, could not lawfully have sailed from Kingston and approached Guantanamo with an intention to enter it unless intercepted-. It is well settled that, in the case of a proclaimed blockade, the neutral ■ vessel may not, with a knowledge of the proclamation, approach the prohibited port, even for the purpose of inquiring from the vessels in occupation whether the blockade was still in existence. The reason given for such a decision is that it wrould seriously affect the efficiency of the blockade if ships were permitted to approach the blockaded port on pretext of inquiry, and thus be enabled to slip in if there was a momentary absence of a blockading vessel.

But different principles prevail in the case of a blockade de facto. Then, neutral vessels may, even with knowledge that such a blockade had been in existence, sail for such port with a clear right to inquire whether the blockade was still In force, and to enter the port if it is found not to be actually blockaded. The reason for the distinction, given in the authorities, is that a proclaimed blockade is-deemed to continue until the blockade is raised by a declaration of the power that established it. But a simple or defacto blockade lasts only so long as the blockading squadron chooses to maintain it by a present and actual force. The reasons for constituting such a blockade may cease at any time, and a neutral vessel, on a peaceful voyage, and not carrying a contraband cargo, may lawfully sail for such a port, and, if when she reaches it the blockade continues, is entitled to a warning.

Thus far it has been assumed that the Adula had actual knowledge of the blockade when she sailed from Kingston, and it has been shown that, in the case of a blockade of the character that this one is claimed to have been, namely, one created by and depending on the will of the commander of

But, in point of fact, as I read the evidence, the Adula had not such previous knowledge, but approached Guantanamo Bay,- within the terms of the President’s proclamation, without notice or knowledge of the establishment of a blockade, and was therefore entitled to. be “ duly warned by the commander of the blockading, forces.”

Captain Yeates, Purser Williamson and Solis testified in direct terms that they had no knowledge or information -before sailing that Guantanamo was blockaded. The only testimony to the contrary, was that of Morris, a -colored seaman, who said that about three days before he left Kingston he heard that Guantanamo was blockaded. He does.not give the. source of his information, or pretend that he made known the matter to thé owners or to the officers of the vessel. Probably all he meant was that he had heard that the United States fleet was at Guantanamo. The other facts plainly corroborate the captain’s testimony. Consider the direction contained in the instructions given the captain, and shown in the record: “ On your arrival at Guantanamo, to which port you will proceed direct, you will find, no doubt, American war ships off. the .port. You will, when signalled to, immediately stop and communicate to the commanding officer' the voyage you are on, and, in fact, you can show him these sailing orders, and I do not think that the commanding officer will make any trouble whatever to your continuing the voyage into the port. . . . 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.” Such instructions are not consistent with knowledge, on the part of the general agent who gave them, that a blockade was actually in force, nor with any intention to violate it.

So, too, the conversation that Solis, the charterer, had with the United States consul at Kingston, in which he sought to

Solis further testified that he first heard of the blockade on the Adula on June 28; that he then heard that on the 27th there was issued an order of the President of the United States declaring a blockade, etc. But as it is not pretended that the President had issued any such proclamation, it is evident that Solis was speaking of a mere rumor; and he immediately added: “ I understood Guantanamo was not declared officially blockaded, although there were some vessels there. I got that information from newspapers in Kingston and from those newspapers I got the information that marines had been landed at the entrance to the bay on the east side.”

It is stated, in the opinion of the majority, that the American consul warned Mr. Forwood,the agent of the ship at Kingston, of the existence, of the blockade. This statement is based on Forwood’s recital of what passed between the consul and himself, in the following language: “Well, For wood, I would not advise you to let the ship go. They won’t let her into Guantanamo, and they will be watching for her.” So far from this language importing a notification of an existing blockade, it rather implies the contrary — that the voyage would be fruitless because the consul believed that the ship would not be allowed to enter the destined port. It certainly cannot be regarded as an official notice of an existing blockade, as is claimed in the argument for the captors. The consul was right, in the existing circumstances, in declining to give the permit desired; but he had no. power to declare a port to be in blockade, nor did he pretend to do so.

So far, therefore, as respects the matters urged as evidencé, that the Adula, her owners, master or charterer knew, or had any good reason to believe, that, at the time she sailed, there

What this court said, through Mr. Justice Grier, in the Prize cases, 2 Black, 635 , may well be repeated here:

“All reasonable doubts shall be resolved in favor of the claimants. Any other course would be inconsistent with the high administration of the law, and the character of a just government.”

Some make-weights are attempted to be thrown into the scales by' adverting to the fact that Solis had passports from the Spanish consul, and the following cases are cited in the majority opinion: The Julia, 8 Cranch, 181 ; The Aurora, 8 Cranch, 203 ; The Hiram,, 1 Wheat. 440 , and The Ariadne, 2 Wheat. 143 .

The case of The Julia was thus stated by Mr. 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; but. in the present case there was no license or passport of protection for the voyage in furtherance of the views and interests of the enemy, but the obnoxious instrument was a personal passport to Solis, dated April 13, 1897, more than a year before the war, in the following terms;: “ Don José K. Solis Yelasquez, native of Santiago de las Yegas, province of Havana, by profession a merchant, dwells in Marina street, No. —, and resides habitually in that ward and at that number.” Were these personal passports, one given long before the war and the other a mere permission to enter cities on the island, at all similar to the case of The Julia, where, as the opinion in that case shows, “ The master was a part owner of the vessel and cargo, and the regular depository of all the papers connected with the voyage. It is utterly incredible that he should' not recollect, in his examination, the existence of these British documents. They were put on board for the special safeguard and semrity of the vessel and cargo.”

In the case of The Aurora, a formal passport or permit had

In the case of The Hiram, the vessel was sailing .under protection of an enemy’s license to the vessel, and this was held to have been in principle an offence of trading with the enemy. In the case of The Ariadne, the vessel was sailing with a license or passport of protection from the enemy’s admiral.

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 friendlj 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.

The conclusions reached may be summarized thus :

(1) The port of Guantanamo was intentionally and as matter of policy left open and free to neutral commerce, not contraband, by the President’s proclamations, and the. Adula had a clear right to sail for and enter that port, even if aware that war vessels of the United States were in occupancy of the port. Such war vessels would, of course, have a right to prevent the Adula from entering the port if such entry would interfere with any military operation in hand.

(2) It was not competent for the commander of the fleet to extend the proclaimed blockade so as to include a port exempted by the President’s proclamation, and to thus make prize

' (3) If an immediate exigency' — and none such is shown to have existed in the present case — justified the Admiral of the United States in prohibiting the entrance of neutral vessels, sound principles of international law required that such vessels should be warned on approaching the port, and they could not be seized as lawful prize, unless they disregarded the warning and attempted again to enter.

This is no time, in the history of international law, for the courts of the United States, in laying down rules to affect the rights .of neutrals engaged in lawful commerce, to extend and apply harsh decisions made a hundred years ago, in the stress of the bitter wars then prevailing; when the rights of the comparatively feeble neutral states were wholly disregarded. Still less should our courts, as it seems to me was done in this case by the District Court, adopt strained and unnatural constructions of facts and circumstances, in order to subject vessels of nations with whom we are at peace to seizure and condemnation.

I am authorized to say that Mr. Justice Gray, Mr. Justice White and Mr. Justice Peokham concur in this dissent.