Mr. Commissioner Frazer’s opinion in the “Rio
Grande” cases. (See p. 110, ante.)
- The remarks made in the general argument for the claimants urging that claims of this character were intended to be referred to this commission by Article XII of the treaty, seem unnecessary, inasmuch a& our jurisdiction of the cases is not questioned, and cannot be.
- If it is intended to infer that there must be an award of damages from the fact that there is jurisdiction, I cannot admit the inference. Jurisdiction is merely the power to hear and decide, and necessarily involves the duty of deciding favorably or adversely as the circumstances shall warrant.
- In like manner the somewhat extended remarks of the general argument to establish that bona fide trade with the Mexican port of Matamoras was not? a violation of the blockade, and could not lawfully be reached by the blockade, may be put out of the case. No such thing was ever, for a moment, pretended by the United States. If, however it is intended to suggest the inference that damages must be awarded for these captures because it was adjudged that these vessels were in fact engaged in that bona fide trade, then I deny the inference. The reason is a good one for discharging the vessel, but it has little to do with the question whether damages should be given. That depends upon the inquiry, was there good apparent cause for making the capture.
- In view of the instructions to the blockading fleets, (satisfactory to Lord Russell,) of the contemporaneous disavowals of Mr. Seward, and of the uniform decisions of the American prize courts, there is no warrant for the assumption (p. 21) that “these captures were intended to affect the trade between Great Britain and Mexico.”
- The doctrine that this commission may, by its decisions, disregard the law of nations, in deference to whatever undefined notions of “equity and justice” the several members of the commission may happen to entertain from time to time, is to me a very great surprise. It brings to mind the remark of an eminent English law judge, resisting the establishment of the jurisdiction of the courts of equity in that country, to the effect that decisions in equity depended upon the individual conscience of whosoever happened to be chancellor, and were therefore as uncertain as the length of the chancellor’s arm or foot! From such equity as that he might well have wished the deliverance of his country. The injustice of his reproach is, however, seen in the fact that “equity follows the law”—abides by it—not only obeys but maintains it, and administers justice according to a system of known and established principles sanctioned by precedent; that it does not depend upon the individual conscience of the judge.
What is the law of nations which it is insisted this commission may disregard? All definitions of it are in accord, substantially, and none of them better than Blackstone’s, “that which regulates the conduct and mutual intercourse of independent states with each other by reason and natural justice.” It is the natural law applied to nations in their relations with each other, so far as they have consented that it shall be thus applied. It is wanting in some of the essentials of strict law, however 5 it is not prescribed by a common superior, and its only sanction is the public opinion of Christendom. Nor is it a complete code having an established rule for all questions that may arise. It is [Page 247] yet in the period of its growth; but whenever it does speak it utters the rule which the wisdom of the nations has by common consent found to be most in consonance with reason and natural justice. When it gives a rule for the government of a given case, it furnishes the full measure of international obligation in that case—is the only standard by which conduct in that case can be properly tested. In other words, it ascertains what is “equity and justice” between nations.
If seeking to pay a compliment to the eminent men who negotiated the treaty, I think one would hardly choose to say, “they authorized the mixed commission at will to substitute for the rules of right which have been sanctioned by all Christian powers and the courts of both countries the individual notions of the Commissioners thereafter to be chosen.”
The application sought of the proposition alluded to is, in substance that, though the facts before the prize-court fully justified its judgments, according to the international law as even the British courts would themselves declare it to-day, yet this commission may, upon some imaginary ground of equity, be bound nevertheless to award damages!. I can only say that no such result can occur here, except over the most emphatic and decided dissent with which I can oppose it.
The Science (No. 391) was found at anchor in the roadstead outside the mouth of the Rio Grande, within less than a marine league of the Texas shore, which was blockaded. Her outward cargo, then discharged, had consisted in part of confederate grey cloth, (290 bales.) She was, in fact, consigned to Matamoras, and really had discharged her cargo there. Matamoras was forty miles up the river. The Texas shore was accessible and less than two and a half miles distant. Captured November 5, 1863; had been there since August 12.
The Dashing Wave (No. 395) was found at anchor near the Science, but further within American waters. No part of her cargo was war material. There were, however, two boxes (£12,000) of gold coin, £7,000 of which belonged to one Caldwell, whose nationality was unknown, but it is evident he was not British. It appeared from papers on board that at his request Lizardi & Co., British merchants, shipped it as theirs, the bill of lading (p. 193) containing the unusual recital that it was “all British property.” She had discharged no part of her cargo. Caldwell had requested this shipment to be made by Lizardi & Co., as their property, in their name, with £5,000 to be advanced by them to him, if their consignee at Matamoras approved of proposed investments of it. He had specially requested that it be insured,” including the war risk,” (p. 200.) She was, in fact, bound for Matamoras.
Caldwell made no claim, but a claim was made on behalf of Lizardi & Co. for the whole £12,000, averring that “no other persons are interested therein,” and sworn to by their attorney. Also, in the same behalf and to the same broad extent, by Armando Brothers, to whom the consignee had indorsed the bill of lading.
The Volant (No. 388) was captured in American waters, the same as the Science and Dashing Wave, loaded by same brokers who loaded the Science, and had confederate gray cloth, (15 bales,) being balance of invoice sent by Science. The remainder of her cargo was blankets, shoes, and woolen stockings, and brandy. She had not discharged her cargo. The invoice on board described the cloth (p. 73) as four bales blue mixed, one dark mixed, ten sky blue. It seems that the whole was mixed, no sky blue whatever. The manifest showed boots, but no shoes.
The Sir William Peel (No. 243) was captured at the mouth of the Rio Grande, in Mexican waters. She had been there about three months. [Page 248] Her cargo, as per manifest, had been mostly discharged at Matamoras, and she had taken 904 bales of cotton, part of her return cargo. She had two 25-pound guns mounted, considerable ammunition, small arms, tomahawks, cutlasses, &c., for boarding, engines six feet below water line. Burden, 1,044 tons. Signal lights were on her at night.
A confederate officer, it was sworn, claimed to have received arms from her, landed on the coast of Texas at night; and this was not contradicted, though there was opportunity. There is other strong inculpatory evidence, which is, however, contradicted; tending to show both the inward and outward cargoes to have been confederate property.
The question in all these cases Is, whether or not there was probable cause for capture. The cargo of each of them was adapted to the Texan market; and there is little doubt that it was expected ultimately to find sale there, whether first to enter into the general stock of Matamoras, or merely to observe the form of passing through that place in transit to Texas.
It seems from the evidence that merchandise unladen at the mouth of the Bio Grande for Matamoras was conveyed to the latter place either in small steamers by the river, or in wagons by land. It seems, also, that this land transportation by wagons was likewise practicable on the Texas side from the coast at the mouth of the river.
It was a matter of notoriety that enormous supplies of military as well as other goods for consumption in the confederacy had been introduced through Texas direct, until the blockade of that coast was made effective, and afterwards through Matamoras. It was equally notorious that there was in Texas a great demand for such goods when these vessels were seized; and that it was the policy of the rebel authorities to ship cotton abroad rather than sell it at home.
These considerations are mentioned to show the strong temptations which existed to introduce goods, and especially arms and ammunition, (which could not go through Matamoras,) into Texas direct. And if accomplished it would avoid Mexican custom-house scrutiny, duties, charges and detentions, and all the inconveniences which flow from circuitous and indirect methods.
Inasmuch as watchful Federal cruisers were present almost constantly any attempt by day to put goods upon the Texas shore would have been too hazardous for probable success. If done at all, it must have been under cover of darkness, and in small quantities at a time, and by the use of small boats. This would consume time, and would be greatly facilitated by nearness of the ship to the Texas shore.
“The Science.” The foregoing observations apply in all these cases. With a burden of only 300 tons, the length of her visit (nearly three months) was of itself remarkable. She had the strong temptation to violate the blockade, and she had placed herself so near the Texas shore that she had the opportunity to do it. These circumstances of suspicion she created, and did not explain. If a ship may thus put herself so near a blockaded shore for months, where, under cover of the night, she can land her cargo upon it, and this without any peril or cause of suspicion, then, indeed, the right of blockade is less valuable to a belligerent than I believe it to be.
I am thus led to the conclusion, not merely that the judgment of the Supreme Court in the case of the Science was not clearly wrong, but that that judgment was clearly right.
“The Dashing Wave.” The foregoing remarks apply with equal force to the case of the Dashing Wave, except that she had but recently arrived at the place where she was seized; and in this case there is superadded [Page 249] the facts concerning the coin of Caldwell. A Mexican would have no occasion thus to conceal his ownership. A Mexican would not have feared to make claim in the prize court. He was either Mexican or confederate, for his country had political troubles. The conclusion is difficult to avoid that he was an enemy, and his property liable to capture, contaminating all that belonged really to Lizardi & Co.
I perceive no error in the judgment of the Supreme Court in this case, except in its failure to condemn the coin as lawful prize.
“The Volant” is a case much like the Dashing Wave. There was no simulated ownership of cargo, but there was an apparent effort to mislead by the invoice, as to the cloth—to conceal the fact that it was confederate gray.
I see no sufficient reason to hold in this that the judgment of the Supreme Court was wrong.
“The Sir William Peel” differs from the other cases in the fact that she was captured in Mexican waters, where she had a right to be; though it seems from the evidence that she had previously been in Texan waters. In all other respects the case is stronger against the ship than in either of the others. It is only by giving her the benefit of doubts that I can say she should not have been condemned. I am very clearly of opinion that there was abundant reason for seizing her and sending her in for adjudication.
That she was taken in Mexican waters was a violation of the sovereignty of Mexico, but not of the rights of the ship and cargo, which could be interposed for their protection except by Mexico, was the doctrine held by the Supreme Court. I think the proposition is fully supported by reason and the principles of justice; and that it is a sound principle of international law, best in accord with the adjudged cases.
On the question of the assessment of damages in the case of the Sir William Peel, Mr. Commissioner Frazer delivered the following dissenting opinion:
Concerning the assessment of damages in the case of the Sir William Peel, (the judgment of the Supreme Court of the United States being deemed erroneous by my colleagues,) I felt constrained to dissent upon an important point.
The ship, and nearly all the cargo, having been restored, it was material to ascertain the value of the property so restored at the date of restitution. If it was then worth as much as when captured, the only legitimate damages, it seemed to me, would beits use during the period of detention, together with costs and expenses. The value, I thought, should be taken at the time and place of restitution, and not at a different time. It had been ascertained at that time by an appraisement by the prize court, one of the appraisers being an agent of the claimants. This appraisement was in round numbers, in gold, £67,500. But the claimants chose, at very great expense, to take the property to England, where they sold it, realizing only £39,600; from which has been deducted all expenses of removal to England, insurance, and other expenses of its preservation and care after restitution, (a very considerable aggregate,) and these net proceeds, deducted from the value at the time of capture, have been taken as a part of the damages awarded. I could not resist the conclusion that the claimants had, after restitution, sacrificed the property for but little more than half its value; and I could not agree that the United States should suffer that loss. It constitutes about three-fourths of the large sum awarded in the case.