Evening star. [volume] (Washington, D.C.) 1854-1972, 1861-06-11


Judge Case fthe British schooner Tropic Wind +,
lib-lled prize TO the United Statea and the
officers and crew Of the u 8. steamer Monticello.
Darlington, District Attorney, and Proctor for the
captors Carlisle for the vessel and cargo.
The libel states that "a certain English schooner,
loaded with tobacco, by name Tropic Wind, was
captured at Hampton Roads, on the 2lst MAY
1861, for violating the blockade at the port Of
Hampton Roads, State Of Virginia; that Ia to saw
the blockade instituted at the said port under and
by virtue Of the proclamation Of the President OF
the United States, bearing date the 27th OF April
1851 " IL prays that the vessel and cargo may be
condemned as prize.
The case came on to be heard upon the exam
nations preparatorio, and the ships papers, &c
Upon these proofs it appeared that she was
duly registered British vessel, belonging to For
tune Island, one of the Bahamas, and 10 owned by
Messrs Harrington, British subjects res ding there
That she arrived ut Richmond from the Bahamas,
with a cargo Of salt, early in April; and while
lying at that port the Presidents proclamation
was published. On the 18th or 18th Of May she
took In a cargo Of tobacco them and for a consld-
cradle time before, the property Of British mer
chants at Liverpool, by whose orders, antecedently
given to the shipping house at Richmond, 1t was
consigned to another British house at Halifax,
Nova Scotia.
She cleared out on the 14th May, having on
board only the master and one man; and by order
Of the British consul was lowed towards Norfolk,
TO take on board fer her crew, certain
British marines, who were at that place. Arrived
In Elizabeth river, she anchored about eight or
ten miles from Norfolk to which place the master
u0.d
crew on board, returned with them to the SC boomer
She then proceeded into the James river, and
while lying at anchor within its mouth, on the
morning Of the 2lst, she was captured BY the Mon
ticellO.
There was no distinct proof Of the day when the
blockade became ehectual at Hampton Roads.
fhe earliest day which there was any evidence to
establish was the I'd of May. Ii appeared, and
was conceded, that fifteen days from and after the
actual blockade were allowed for vessels to leave
the blcckaded port with without cargoes
tihcate Of the CoBsul at Norfolk, that the U. s.
custom house there had been closed; that he had
been officially notified on the 18th Nav, that If
teen days were allowed; and that vessels might,
within that time, leave the port with cargOss,
whether loaded before after the actual block
ade; and that his best information was that there
was no actual blockade before the ID May-the
schooner clearing on the 18th.
The District Attorney produced. and read with
out objection, letter from the Secretary Of the
Navy TO the Secretary of State dated 9th May, In
reply to one from the latter dated the Sth, inquir
ing FOR the explanation Of Lord Lyons what day
the blockade actually commenced, and what priv
iieges were to he allowed to British vessels pre-
vieusly in port. The Secretary of the Navy an
swers thst fifteen days Were allowed, and encloses
a copy of Commodore Pendergrast's notice, dated
the 3Oth A pril, that he had a sufficient force to
carry out the proclamation Of the President, and
meant to blockade all tine ports of Virginia and
North Carolina The letter Of Mr. Seward to Lord
Lyons was not produced; but 1t was inferred by
the advocate for the schooner, that. between the
fcate showed that he had been officially instruct
ed Mr.. Seward replied to Lord LYONS, and the
latter instructed the Consul to the effect stated in
the certificate.
The District Attorney, In bis opening, briefly
maintained that the schooner had violated the
bloc ade by taking her crew from Norfolk and
that she had also subjected herself and cargo to
condemnation by being found at the mouth of the
James River with an evidentintent Of proceeding
into the Roads, and out to on her voyage to
Halifax reservng himself for a reply when the
-
Mr.. Carlisle, advocate for the ship and cargo,
maintained:
l. That a blockade, under the law Of nations
must be the act Of 6eHIgsrsHt. There must be a
TEbEte trdT- III a sovereign close certain of his
own ports on account Of domestic disturbances,
and iEterdict all commerce with them, upon GER
tain penalties and forfetures, this is not blockade
under the law Of nations, but municipal kgiSiG-
tICn, or decree Of The sovereign. This distinction
10 taken by the Supreme Court In the case of Rose
and himely, Cranch, where, the Island Of st
Domingo being in a state of revolt, decyee sim
liar 10 that Of the Presidents proclamation was
made, by the authority of the French Republic.
The Court held that the capture In that case was
not JETe ts!Ii, but was JKre eIrIIi. He admitted
that there was no Tepugnacy between the two
rights belllSerent and of sovereignty. One mi ht
be sUperadded to the other But, by the authority
Of the same case and others it is to be determined
by the acts and declarations of the sovereign him
self, in which character he il acting-whether
simply enforcing his own authority upon his own
subjects and within his own jurisdiction, or car
independent nations, or civil war, which 10 still
war, recognized by the JUS geHtiEm as entitlin ~
both parties 10 all the riguts Of beliigerents to
other nations
2 IL the s5rsrsign porcer had proclaimed and
Instituted this blockade, the case would then be
parallel with that cited from Cranch. But in
this case the sovereign has not acted, unless the
President be an absolute monarch. This case
arises In a court Of justice, by the libel Of the
Government end the captors, who ask decree of
condemnation. The court is held under the Con-
nd Of fod
necessity, or the temporary will Of the people TO
suspend the constitutional government and in its
Place to erect a dictatorship for the preservation
o! tbs Union, however justihabIe elsewhere, can
have no standing in this court. This IL the act
Of the President Is 1t an act of war? The an
swer Is that by the Constitution Congress alone
decree, The answer is eq ually clear,-the Presi-
deut has no Legislative or sovereign powers or at
tributes.
g. taking the case either way, and admitting
the power, the terms Of the proclamations of the
I7th and 27th April clearly snow mat the act i.
one which studiUusly disclaims and denies any
actual war, any beligerent rights In the states
b!ockaded. 1t ID therefore no case Of capture
jKys bsHi.
L. neither war exists not IL political ques.
ton which 10 to be answered exclusively and con-
clusively to the courts Of the United states by
the Executive Government OF the United States,
and not by the opinion Of court or bar, that OF
ali the foreign nations. This il firmly settled by
the Supreme Court Of the United states. (U. \.
vs. Palmer, w heat, 1853; Foster W Nelson,
Pet 253, Williams vs.. suffolk Insurance Com
pany, 10 Pet, AIS; and Luther vs.. Borden, How.
1.-The case of Doris rebellion ] All the public
acts Of the Executive pronounce this to be no case
Of war. The Southern Confederacy is not recog-
nized a. q government de Jacto. Those in arms
under that supposed authority are merely rebels
and traitors land and pirates on the seas IL Ia
true that Great Britain, to whom this ship belongs,
appears TO think differently. But this court takes
the political status in question absolutely and
solely from the Executive Government OF the
United States The other nations j1dge for them
selves and their courts follow them.
s. This proclamation assumes to anEul the ex-
listing treaties with Great Britain by closing large
portion Of the ports Of tie Union There Is at all
events no war with Great Britain, regular or IT,
regular. The President can neither make mol
unmake treaty. Ports Of entry created by act al
Congress only cease TO be such by the exercise
Of the same power. These ports being, by the
theory Of the Government, an III: Union, by what