Mr. Coffey to Mr. Seward.
CONSTRUCTION OF THE SECOND SECTION OF THE ACT OF JULY 17, 1862, CHAP. 195, AND ITS BEARING ON AMERICAN VESSELS DESPATCHED TO A NEUTRAL PORT IN BALLAST.
Opinion of the Attorney General.
Sir: I have the honor to acknowledge the receipt of your letter of the 14th instant, enclosing certain correspondence with the Secretary of the Treasury and the United States consul at Nassau with the Department of State, and [Page 1347] submitting for my opinion the question suggested by the consul at Nassau, viz: Whether the act of despatching an American vessel to a neutral port in ballast, though its ultimate destination as a blockade runner is all but certain, is an offence against the laws of the United States, and for which arrests may be made, and parties concerned in such enterprises may be prosecuted, and, if convicted, punished.
The 2d section of the act of July 17, 1862, chapter 195, to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, enacts that if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such persons shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have, or by both of said punishments, at the discretion of the court.
The act of despatching an American vessel from any port of the United States to a neutral port in ballast, with the purpose of taking in cargo at that port, and running the blockade therefrom, would, in my opinion, bring the person or persons so despatching her within the penalties of the above cited section, if the vessel, in the execution of that purpose, actually ran the blockade. This would be an overt act of assistance, or aid and comfort to the rebellion, such as the law prohibits. To secure the conviction of the person or persons who despatched the vessel, it would, of course, be essential to prove the existence of the guilty purpose in so doing.
I am also of opinion that the act of despatching an American vessel to a neutral port in ballast, with the ascertained purpose of taking in cargo at that port, and running the blockade therefrom, would subject the person or persons so despatching her to the penalties of this law, if, in pursuance and in execution of that purpose, the vessel actually attempted to run the blockade, but in the attempt was captured, or otherwise prevented from so doing by a blockading vessel.
The question whether the mere act of despatching an American vessel to a neutral port in ballast, for the purpose of running the blockade therefrom, not followed by an actual running, or attempt to run, the blockade, would, of itself, constitute an offence within and punishable by our criminal statutes, deserves careful consideration. The 2d section of the act of July 17, 1862, provides comprehensively enough for the punishment of the offence of actually inciting, setting on foot, assisting or engaging in rebellion or insurrection, or of giving aid or comfort thereto, or of engaging in, or giving aid or comfort to, an existing rebellion or insurrection; but it fails to include the class of acts which, whilst done with the intent to do these things, do not of themselves amount to actual assistance, or aid and comfort to the rebellion or insurrection.
The question, then, is, whether the act of despatching an American vessel from a port of the United States to a neutral port in ballast, with the ascertained purpose of there taking in cargo to run the blockade, of itself amounts to actual assistance, or aid and comfort to the rebellion, within the statute. I think it does, for this reason: Such a vessel started from an American port with intent to run the blockade, would, in my opinion, be subject to lawful capture as prize of war from the moment she left that port. It is a well-settled principle in the law of blockade that the act of sailing with an intent to break a blockade is deemed a sufficient breach to authorize confiscation. From that moment the blockade is fraudulently invaded, and the vessel is liable to capture, without reference to the distance between the port of departure and the blockaded port, or to the extent of the voyage performed.—(3 Phil., 390–406, and cases cited; 5 Cranch, 343–’9; ib., 440, Story, J.) Whether a neutral vessel [Page 1348] proceeding from one neutral port to another neutral port, with the intent there to take in cargo, and from thence to run the blockade, is liable to capture and condemnation before she reaches the port at which she is to receive her cargo, it is not necessary now to decide, although, from the language of Lord Stowell, in The Jonge Pieter, (4 Rob., 89,) I infer that such was his opinion. But however this may be, he distinctly asserts, in that case, that if a subject of the blockading country ship goods to go to the enemy through a neutral country, they are liable to capture and condemnation. For, as he says, “without the license of government no communication, direct or indirect, can be carried on with the enemy. * * * * * The interposition of a prior port makes no difference; all trade with the enemy is illegal, and the circumstances that the goods are to go first to a neutral port will not make it lawful.” Of course, if the goods shipped on such a venture nay be condemned, a vessel started from a port of the blockading country with the intent to take in cargo at a neutral port, and from thence run the blockade, and thus to hold illicit intercourse with the enemy, is equally guilty and liable to capture and condemnation.
If, then, an American vessel starting from an American port in ballast, with such a purpose, be a lawful prize of war, it follows, that, from the time of her departure for the neutral port, it is as much the duty of our cruisers to capture her as if she were actually entering a blockaded port with full cargo. And the moment she is placed in this predicament the persons who despatched her on her guilty errand became liable to the penalties of the 2d section of the act of July 17, 1862. For, whenever the vessel they have started is in such a position as to impose on our cruisers the duty of arresting her voyage by her capture, then these persons have actually and materially assisted the rebellion by adding to the duties of our cruisers that of pursuing and capturing her, which involves, necessarily, their withdrawal, for the time, from other service. If necessary, it would be easy to illustrate, in a variety of ways, the effective assistance which might be rendered to the rebellion by the mere act of despatching vessels in ballast to neutral ports, with the ultimate purpose of running the blockade. The right, and consequent duty, of capturing such vessels off our coast, before they reach the intermediate neutral ports, might well give so much employment to our navy as to diminish its effectiveness elsewhere, or require a considerable addition to its force. To create this necessity would, in contemplation of law, be to assist and give aid and comfort to the rebellion in a form only less aggravated than the actual fitting out of vessels of war for rebel use. And of this offence, within the terms of the statute I have cited, are those persons guilty, in my opinion, who despatch American vessels in ballast from our own ports, with intent to stop at neutral ports, and, after there taking in cargo, from thence to run the blockade. The unlawful purpose being established, the offence is committed whenever the vessel shall have started on her voyage, whether it be consummated at the blockaded port or be arrested after she has left, or before she has reached the intermediate neutral port.
I am, sir, very respectfully, your obedient servant,
Hon. Wm. H. Seward, Secretary of State.