Dissenting opinion of Mr. Commissioner Frazer
in the case of the Circassian, Nos. 432, 433, and 444. (See p. 148, ante.)
The only lawful object of a blockade is to injure the enemy. Hence there cannot, consistently with public law, be a blockade of a port unless it be an enemy’s port.
But I am not prepared say that the mere occupancy of a port, however precarious and temporary, by the belligerent maintaining the blockade thereof, is such a possession as makes the port no longer the enemy’s, but that of the blockading belligerent, thereby terminating the blockade. I know of no authority which goes to that extent. In such a case I think the question must be regarded as one of first impression, open to the just influence of every consideration which should affect the decision of a new question.
But I do not think this question is necessarily involved in the decision of the cases growing out of the capture and condemnation of the Circassian, and therefore I do not discuss it.
There has been much criticism of the judgment of the Supreme Court in the case of the Circassian, (2 Wall., 135.) That judgment has been questioned in quarters entitled to great respect; and it has, on such occasions, uniformly, I believe, been assumed that at the date of the capture of the vessel, (May 4, 1862,) the port of New Orleans was in the possession of the United States, a possession which subsequent events-proved to be (whatever may have been apprehended at the time) permanent and uninterrupted. And it has been assumed that the Supreme Court held that, under such circumstances, the blockade of the port was not brought to an end, This is a grave misapprehension, not only of historical facts but of the doctrine announced by the Supreme Court; and yet so easy to fall into, that only by care can it be avoided. It is undoubtedly a fact of history that for several days prior to the capture at sea, of this ship, the military forces of the United States had actual possession of the city of New Orleans, were not there immediately menaced by any hostile force, and ever after held it. It is so natural to confound the city with the port of New Orleans that the error is not wonderful. And yet the distinction is very wide, and practically very important.
The city of New Orleans, of which the United States held possession, was a municipal corporation, possessing geographical boundaries defined by the laws of the State of Louisiana, The boundaries included, at the utmost, only so much of that larger territory called the parish of Orleans as lies on the left bank of the Mississippi River. But the National Government, having by the Constitution the control of commerce, and consequently the power to define the geographical limits of the ports of the United States, had, by act of Congress taking effect September 16, 1850, declared “that the port of New Orleans shall be and is hereby so extended as to embrace the whole parish of New Orleans, on both sides of the Mississippi River.” (9 Stat, at L., 458.) It was not the city merely, but the whole port which had been blockaded. And the question before the Supreme Court was not whether the possession of a port by a blockading belligerent puts an end to the blockade. It is a disregard of the facts so to state it, and it is a misapprehension of the decision of the court to suppose that it was reached by determining that question in the negative. The real question was deemed by the majority of the court to be whether possession of the city by the United States terminated its blockade [Page 251] of the port It needs only a careful reading of the opinion of the Chief Justice to see that he saw clearly the difference between the city and the port of New Orleans; and an examination of the dissenting opinion of Judge Nelson will also show that he entirely confounded the city with the port.
Is it possible to misunderstand the following language found in the opinion of the Chief Justice?
It (the blockade) applied not to the city alone, but controlled the port which includes the whole parish of Orleans and lies on both sides of the Mississippi, and all the ports on that river and on the lakes east of the city. Now, it may be well enough conceded that a continuous and complete possession of the city and the port and of the approaches from the Gulf, would make a blockade unnecessary, and would supersede it. But at the time of the capture of the Circassian there was no such possession. Only the city was occupied, not the port.
Nothing can be more certain than that the Chief Justice thought there-was an important and very practical distinction between the city and the port of New Orleans with reference to the question of blockade. If not, then this language, marking so clearly the difference between the two things, and dwelling upon the fact that though the city was occupied by the Federal forces, a very large part of the port was not so occupied, was idle verbiage, injected into the opinion for no purpose unless it may have been to increase its volume!
I think the Chief Justice was correct in supposing that the difference-between the city and the port was of practical importance in the case. A little consideration will make this quite apparent.
No rebel military force, it is true, occupied that part of the port (the right bank of the river, many miles in length) which was not occupied by the United States on the 4th May, 1862; but it was, de facto, territory of the rebel belligerent, nevertheless. Trade there was trade with the enemy, to prevent which is the lawful purpose of blockade. It is not necessary to the lawful blockade of an enemy’s port that the enemy should hold it by the presence of a military force. Suppose, then, that on the 4th May, 1862, the Circassian had steamed into the port with a view to discharge her cargo at any landing on the right bank of the river, within the port, rebel merchants, non-combatants, being ready to receive it there and transport it into the interior, no portion of the goods being contraband, by what right, save that of blockade, could the Federal fleet have interfered to prevent it? The position and strength of that fleet, it is true, enabled it to capture, without fail, every vessel which might have attemped such a thing; but this physical ability to capture did not, per se, confer the right to exercise it; nor did it, per se, end the blockade. It is said that a municipal regulation might have been enacted prohibiting such importations or controlling them; and in execution of such an enactment the force at hand could have been employed; but this is no relief from the dilemma. The right by municipal regulations to close rebel ports and render trade-with them unlawful, was claimed by the United States very early in the rebellion. It was proposed, but the right to do so was denied by Great Britain and other neutral nations, and its exercise was forborne-in deference to their protests. Even in the argument for the claimant in these cases, the right of the United States to exercise sovereign rights (and belligerent rights at the same time) against the rebels to the prejudice of neutrals, is earnestly combatted by a gentleman who, as a writer upon public law, stands deservedly high as an authority, and who, in his published works, had before expressed the same opinion. Whatever [Page 252] maybe true as to that, it is very certain that Great Britain, having contributed more than any other nation to induce the United States to forbear, by denying the right, cannot now fairly claim for her subjects the benefit of a principle which, at the time, she so stoutly denied. Municipal regulations prohibiting neutral import trade with any part of the port of New Orleans not in Federal possession, would have been as obnoxious to Great Britain as if a like attempt had been made at that time concerning Mobile, Charleston, or Savannah. The principle which would have justified it in the one case, would have maintained it in all.
If the consideration of the case left it doubtful whether the judgment of the Supreme Court was in accordance with public law, it would be our plain duty, according to all authority, to disallow these claims. So much deference in a case of doubt is due to a deliberate judgment of a court whose independence, impartiality, and learning has given it a character in Great Britain not less lofty than it possesses at home.
But I do not doubt. Comments and criticisms upon the judgment of the court had fallen under my eye; trusting to which, I confess I had been somewhat impressed with serious doubts (to say the least) of the legality of the condemnation. But a very careful study of the case shows that, in making such criticisms, no account has been taken of the important fact that the possession of the United States forces at New Orleans did not extend to the whole port when the ship was seized; no such entire possession being anywhere directly asserted. That the error is one of inference, resulting from the fact, doubtless, that the wider area of the port, as contradistinguished from the city of the same name, has usually escaped attention. It follows, therefore, that the principle supposed to be violated by the court was really not violated at all, and that the question was not that which has been sometimes supposed. It is not, I may hope, improper to say that the best care and judgment which I am able to bring to the consideration of the case has resulted in a clear conviction that the condemnation of the Circassian was correct.