8. DEPOSIT OF OFFENSE. § 1279. Where an American vessel had entered and cleared from a port under blockade, and, while returning to New Orleans, was captured by a vessel belonging to the French blockading squadron, from which the captain of the former rescued her and brought her to her destination, the port of New Orleans; and demand subsequently being made of the Executive to deliver up the vessel and cargo, both on account of the said breach of blockade and rescue, it was advised that the captors had no right of property in said vessel and cargo, and that the liability of the vessel to condemnation, if it ever existed, had ceased by the termination of her voyage at the port of her destination. It was also advised that the case called for a judicial decision settling certain questions of fact concerning the legality of the blockade, capture, etc., before the Executive could act, and that, as independently of this, there was no constitutional right vested in the Executive to deliver up the property of an American citizen, claimed by him as his own, and in his actual possession, and not condemned, nor legally adjudged to belong to another. Grundy, At. Gen., 1838, 3 Op. 377. The offense of breach of blockade " can not travel onwards with the vessel beyond the termination of the return voyage. If captured, or recaptured, at any stage of that voyage, she is taken in delicto and liable to be condemned; but if, as in the present case, she terminates it in safety, that liability is viewed as having ended." Mr. Vail, Act. Sec. of State, to M. Pontois, French min., Oct. 19, 1838, MS. See Mr. Vail, Act. Sec. of State, to Mr. Cass, min. to France, No. 32, Nov. A cargo taken from a port in violation of a blockade, with the intent to transship it at an intermediate port for its port of ultimate destination, remains liable to capture and condemnation after the transshipment. The Thompson, 3 Wall. 155. The liability of a vessel to capture and condemnation for breach of blockade ceases at the end of her return voyage. The Wren, 6 Wall. 582. "The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade, she is good prize H. Doc. 551-vol 7-54 from the moment she appears upon the high seas. Similarly, if she has succeeded in escaping from a blockaded port she is liable to capture at any time before she reaches her home port. But with the termination of the voyage the offense ends." Instructions to United States Blockading Vessels and Cruisers, General V. CESSATION OF BLOCKADE. 1. TERMINATION. § 1280. The blockade of the coast of Louisiana, as established on the coast of the Southern States generally, by the President's proclamation of April 19, 1861, was not terminated by the capture of the forts below New Orleans by Commodore Farragut and the occupation of the city by General Butler, and the proclamation of the President of the 12th of May, 1862, declaring that after June 1 the blockade of the port of New Orleans should cease. It therefore remained in force at Calcasieu, on the western extremity of the coast of Louisiana. The Baigorry, 2 Wall. 474; The Josephine, 3 Wall. 83. The fact that the master and mate saw no blockading ships off the port where their vessel was loaded, and from which she sailed, is not enough to show that a blockade, once established and notified, had been discontinued. The Baigorry, 2 Wall. 474. A public blockade, that is to say, a blockade regularly notified to neutral governments, and as such distinguished from a simple blockade or such as may be established by a naval officer acting on his own discretion or under direction of his superiors, must, in the absence of clear proof to the contrary, be presumed to continue until notification is given by the blockading government of its discontinuance. The Circassian, 2 Wall. 135; The Baigorry, id. 474. The occupation of a city by a blockading belligerent does not terminate a public blockade of it previously existing, the city itself being hostile, the opposing enemy in the neighborhood, and the occupation limited, recent, and subject to the vicissitudes of war. Still less does such occupation terminate such a blockade proclaimed and maintained not only against the city, but against the port and district commercially dependent upon it and blockaded by its blockade, The Circassian, 2 Wall, 135, Wharton, in his International Law Digest, III. 364, following Hall (3rd ed.), 656, says: "This ruling conflicts with Thirty Hogsheads v. Boyle, 9 Cranch, 191. Damages were afterwards given by the mixed commission to the owners of the Circassian." He also quotes Lorimer, Law of Nations, 145, who says: "A British ship, the Circassian, was actually seized and confiscated by the American prize court for attempting to run the blockade at New Orleans after New Orleans had been retaken and was in possession of the North, and she was restored only under the mixed commission appointed by the treaty of Washington at the close of the war." There is nothing in these comments to indicate that the decision had been carefully examined, and it is obvious that Lorimer, since he speaks of the ship having been "restored" by the mixed commission, was not acquainted either with the powers or the proceedings of that body. It may be accepted as self-evident, as a general proposition, that the capture of a blockaded port by the blockading belligerent terminates his blockade of such port, since he could hardly blockade himself; nor does it necessarily appear that this proposition was denied in the case of the Circassian. The facts were that the Government of the United States, by a formal proclamation, assumed to continue the blockade of the port of New Orleans till July 1, 1862, though the occupation of the city of New Orleans was effected by the United States troops on the 2d of May. The port of New Orleans and the city of New Orleans were not the same; and the court drew a sharp distinction between the two things. "It may be well enough conceded," said the court, "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 supercede it. But, at the time of the capture of the Circassian there had been no such possession. Only the city was occupied, not the port, much less the district of country commercially dependent upon it, and blockaded by its blockade." Mr. Justice Nelson, however, in his dissenting opinion, contended that at the time when the vessel was seized both the city and port of New Orleans were reduced, and full authority of the United States extended and held over them." (2 Wall. 150, 156.) 66 The same difference of opinion as to the facts apparently existed in the mixed commission, which, by a majority of votes, awarded compensation to the owners of the vessel. Although the award does not disclose the reasons on which it was founded, the dissenting opinion of Mr. Frazer, the American commissioner, indicates that they were the same as those maintained by Mr. Justice Nelson. Mr. Frazer's dissent was based solely upon the facts. At the close of an extended opinion, he said: “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, is contradistinguished from It follows, the city of the same name, has usually escaped attention. "It is advisable, where the exercise of a belligerent right is in doubt, to A vessel having been captured by a United States cruiser on June 29, 1898, for attempting to go to Guantanamo, Cuba, of which a blockade had been established by Admiral Sampson, it was contended that, at the time of the capture, the port of Guantanamo was in the possession and control of the United States and that the blockade was thereby terminated. The town of Guantanamo is eighteen miles from the mouth of Guantanamo Bay. The harbor was held by United States naval vessels and by a party of marines who occupied the crest of a hill on the west side of the harbor near its entrance, but the town at the head of the bay was still held by the Spanish forces, as were several other positions near by, and the campaign in the neighborhood was in active progress, and encounters between the American and Spanish troops were of frequent occurrence. Under these circumstances the court held that "the blockade was still operative as against vessels bound for the city of Guantanamo. The occupation of the city," continued the court," terminates a blockade because, and only because, it supersedes it, and if a vessel be bound to a port or place beyond, which is still occupied by the enemy, the occupation of the mouth of the harbor does not necessarily terminate the blockade as to such places." The Adula, 176 U. S. 361; affirming 89 Fed. Rep. 351, and citing The Circassian, 2 Wall. 135. 2. SUSPENSION. $1281. When a blockade has been abandoned and then renewed, there should be either a new proclamation by the blockading sovereign, or vessels making for the blockaded port (after notice of the withdrawal) ought to be "premonished of their danger and permitted to change their course as they might think proper." Mr. Madison, Sec. of State, to Mr. C. Pinckney, min. to Spain, Oct. 25, 1801, Am. State Papers, For, Rel. II. 476. An extract from this instruction is given in 3 Wheat., appendix, note 1. The rule" which subjects to capture vessels, arriving at a port, in the interval between a removal and return of the blockading force," is a deviation from international law. Mr. Madison, Sec. of State, report of Jan. 25, 1806, ‘Am. State Papers, For. The blockade of Charleston, South Carolina, was carried into effect on May 11, 1861, when the U. S. S. Niagara took her position there. Subsequently, the Niagara was ordered to be replaced by the steamer Harriet Lane, but, owing to some accident, the latter failed to reach the station till a day or two after the Niagara had left. Without discussing the effect that this absence of the blockading force might have on any vessel that had entered or departed during that brief time, Mr. Seward maintained that it had not so far impaired the blockade as to render necessary a new notice of its existence. Mr. Seward, Sec. of State, to Lord Lyons, British min., May 27, 1861, In a circular of Feb. 5, 1863, to the members of the diplomatic corps, Fauchille, while pushing his vindication of neutral rights to their extreme limit, holds that the United States accept the position of Sir W. Scott that a blockade is not broken by an accidental dispersion of the blockading squadron through stress of weather. "In 1800, the United States held that a blockade was maintained nothwithstanding a temporary dispersion of the blockaders by storm (Mr. Marshall to Mr. King, September 20, 1800), and the same view was enforced by Mr. Mason in his instructions to the naval commanders of December 24, 1846." He admits, also, that the same position is taken by Phillimore, iii, § 294; 1 Kent, 365; and other high authorities. But he proceeds to cite the opinion of Ortolan (II. 311, and also Deane on Blockade, 51) to the effect that while a blockade is not vacated permanently by such a dispersion, it is suspended while the dispersion continues, so that vessels entering during such an interval are not liable to be seized for blockade running. He proceeds to argue that the preponderance of reason and of authority is with the |