Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-10-09


to the Government Of Virginia" -a
Whether the learned Judge be correct in his vie "
that war became public oeT after the Declaration
OF Independence-a view be may be excused from
taking, if wrong, as his own name was appended
to that imperishable doeument-we hsve the Sane
ton of his great name TO the doctrine that to such
contest there belonged all the rights Of war.
am, therefore, clear in the opinion that a. 4
blockade is acknowledge bellgerent right under
the law Of nations where war exists, the blockade
of the Southern ports was lawfully proclaimed by
the President -.4
In the discussion Of this question have said
nothing in reference to the sovereign rights Of the
Government whether it may not at the same time
exercise both sovereign and beligerent rights. Such
! question does not arise IN the case. have con-
fined myself to the examination Of the existence
not Of beligerent rights BY the Government IN refer
ence to the present unfortunate state Of the eOun
try.
And Phillemore. in his commentaries on inter
national law, (vOl. g. p 740) gives simple rule
/ by which TO determine this question. He says !:
| ''tR che case Of civil war, the English law fur
nlshes good criterion as to whether the country
is to be considered at peace or at wGF-that when
ever the kings courts open il il time Of peace
( in judgment Of law" -
Judged by this standard, then, e. the Federal
courts are closed in the Southern States there is
state of civil war. And the Government is remit
ted to its bellgerent rights TO be exercised liz Sc
4 cordance with those maxims of humanity, modera-
/ ton and honor which the law Of nations has
prescribed to be observed by both parties in every
/ civil war.
Sitting in a court of the captorE, adjudging
question Of prize, am to decide Wheter this vessel
| and cargo can be condemned upon ether Of the
grounds alleged by the district attorney he con-
tends tiist tbs ship and cargo 20 be e01demned
as enemy property, and if not such to be es1demn-
! ed because there was committed breach of block
ade Now, ss both these grounds involve questions
of fact. well questions of law let Us what
are the the facts of the case as presented in tie
I iaafl T7nr and arfNa
The schooner Nv. johnson Is owned BY GER
tain Holder Amy resident and citizen Of the State
of Rhode Island That he has been for the last five
years largely engaged IN the business Of wreeking
alcag the Atlantic coast owning some other vessels
and was frequently called by his business to Ports
mouth aud Norfolk, in Virginia. That he married
lady in one OF those places, and ~ his business
permitted, passed much of his time there, but leff
there for his home in Rhode Island shout the time
Of the bombardment of Fort Sumter. That he pur-
chased the F. w. johnson, in Norfolk some five
years Eaee. and caused her 70 be enrolled IN Ncr-
folk on the 9TH of July 1856, and losing the eerti
cate Of that enrolment he enrolled her agsan at
the same point on the 29sh of September, 1855 IN
der which she has been sailing SINCE The last
coasting license, which recites the enrolment of
1858, was taken out at Norfolk on the I'd Of March
last.
In the enrolment Holder AlmY ia mentioned As
of the city of Norfolk, State Of Virgins but be
only sWears shat he is citizen Of the United
Ststes.' The said schooner Wss at the time of her
capture sailing under the flag Of the United States
and her captain and crew were all citizens Of Has
saehusetts or Connecticut. These are all the facts
In reference to the question Of ownership. The
District Attorney contends that inasmuch as the
enrolment recites Holder Almy of Norfolk, Vir-
gnia, he cannot contradict it, TO relieve his
vessel from condemnation as enemys property.
Now, when this enroment made, Holder Almy I
was for q temporary purpose at Norfolk, where he /
purchased the vessel, and where it was perfectly /
legal for him to enroll her, if ne not absolutely
. l..
acts. ISee act Of 3lst December, 1892 section H.
and act Of 18th February, 1913, section 2 ] Nor
folk was then part OF the United States seknOVi
edging its allegiance to the Government sDd where
the officers Of the Government granted the license
and made the enrolment which have bean given in
evidence in this case.
Now, is an enrolment any more than primo facts
evidence Of ownership Of the residence OF the 1
owner May not the true state Of facts be shown !
BY the eVidence-the question being, WIS., the aOmi-
ell Of the owner at the time of the capture IN an
enemy's country. and not what may have been his
residence st any former period. Ii is true. the
owner who makes the oath in the custom-house, to 1
enable him to obtain the enrolment. would not be /
heard in court Of justice to dispute the facts he
had sworn to, but he could show any facts not in
consistent with the oath he had taken For instance
le could show that, although be is named sole
'Tner the equitable interest in mOiety of the YES
el Is IN other parties. see Of Weston Pen
iimsn, Mason, 81 ] or that since the enrichment
he domicil has been changed In the case Of the
hip Resolution and cargo, in the Federal Court Of
Appeals In l7Sl, that Court lin Dallas, 23) says,
speaking of the ships papers that every COM
nercial country has directed by its laws that its
hips shall be furnished with set Of papers called
he ship papers. And this criterion the laws Of ma
ions adopts in time of war to distinguish the Prep
rty Of different powers when found at sea; not,
ldeed, as conclusive, but presumptiVe evidence
My.
Bills of lading letters of correspondence, and all
Their papers on board which relates to the ship or
lrgo, are also considered as primo fdcie evidence
the facts they speak. They say again, 'if the pa
ers affirm the ship and cargo TO be the property
an enemy, there must be a condemnation unless
icy who contest the capture produce clear
nd unquestonable evidence to prove the contrary"
VIII be found, on reference to the case Of THE
uperiority,' l Newberrys Rep, l76, that Judge
eVit Of the u S. District Court Of Ohio held that =
the Superior" has been enrolled st Buffalo the
lrolment was prhn1 fdcie evidence that she be- B
nged TO the port of Buffalo at the time of her reg OF
try. He says: at sSrue in controversies between q
lie owners of vessel Involving question of title A.
erely, the enrolment is not even prind fdcie evil
snce. When offered to show title in the person |
aking it, il is wholly inadmssible as evidence for
70 reason that it is proof only Of his acts and can
1t be received against other parties. But upon n
incidental question, not affecting the title of the
Irtes it is competent evidence, and unless contra
eted By clear evidence, will be held conclusive as M
the port or place 10 which the vessel belongsn- -,
the case of the United States vs. Bruno Wal an
ee jr ESQ Judge Grier decided that in a criminal IL
against one Of the crew Of an American
ssel, the registry was not even priHa fdeie evil
nee of ownership, to show the American eharac- g.
r of the vessel therefore am Of the opinion Y
at in this case the enrolment and license were
ly prinlG tacie evidence that Holden Almy the "
7ner Of the said &C. o0ner, citizen Virginia an
further authorities this question: se the foI,
wing cases: Bradbury VS.. Johnson Al Maine Rer, 10
2 {: Brooks vs.. Minturn California, 1872; Stoke vs.
rne, and others, 2 Campbell, $40. T
Now as l said before, the domici Of the owner at
time Of the capture Of the vessel determines lis
aracter as hostile or not. In the case of the N
'cean," c. Robinson, 81, Sir VIM Scott decided y
1t British merchant settled in Holland at the sge
eaug out OF hostlities but taking early measures aid
remove. entitled to restitution of his proper
seized as enemy's property. And the same doc res
ne was maintained by the Supreme Court in the | d
re Of the venus" Craneh 253. Justice Wash :
ton in delivering the opinion of the Court says b
saking Of q dOmicil acquired in foreign coun. %,
2: "But this national character which man ac-
Tres by residence may be thrown of at pleasure p
8 return to his native country, or even by his
ming his back on the country in which he has
ided, on his way to another. To use the Language
Sir Vim. Scou, it is en- adventurous character
ned by residence and which ceases by non-resi- | =
ice. 1t longer adberes to the party from the II
ment he puts him, elf in motion, bona fl to quit sG
country, sine GAirHO rsUeTtsnds. =
Vow, tasted by these decisions this vessel be- {
ged at the time Of her capture to Rhode Island
Captain Stoddard swears. in his claim and an
err that Holden Almy left Norfolk about the time 90,
the bonabsrdment Of Fort Sumter. and returned
his home in Rhode Island. And there is nothing
he to cast the slightest Suspicion this orw