The Newfoundland

• Decision Date: 12 September 1898
• Citation: 89 F. 510
• Parties: THE NEWFOUNDLAND.
• Court: U.S. Court of Appeals — Fourth Circuit

89 F. 510

THE NEWFOUNDLAND.

United States District Court, D. South Carolina.

September 12, 1898

Abial Lathrop, U.S. Atty., Edward W. Hughes, Asst. U.S. Atty., and B. A. Hagood, Asst. U.S. Atty.

Theodore G. Barker, for respondent.

BRAWLEY District Judge.

The opinion filed August 17th, on the preliminary hearing (89 F 99), based upon the testimony in preparatorio, sets forth the facts relating to the conduct of the Newfoundland up to the evening of July 19th, when she was captured off the port of Havana, and the cause is now before me upon an order for further proof. As was stated in that opinion, a mere suspicion of an intention to violate the blockade, however well founded, is not sufficient ground for condemnation. There must be some overt act denoting an attempt to do the thing forbidden, some fact in addition to the proved intention to commit the infraction, which shows that the unlawful intent is persisted in, and is being carried into execution. The precise question now to be considered is whether there is sufficient evidence of acts denoting the intention to break the blockade at Havana, for to that point the additional testimony has been directed. Upon the preliminary hearing the court was led to believe that the American consul at Halifax was in possession of information that would have an important bearing upon the issue, but no testimony from that quarter has been offered. Actual entrance into a blockaded port rarely can be and need not be proved, for, if that were so, captures would cease to be possible; and as no instrument has yet been devised by which the operations of the human mind can with certainty be disclosed, and intentions must be inferred from acts, so it must be that in all cases of this nature, proof must rest largely upon presumptions, and, accordingly as those presumptions are or are not unavoidable, acquittal or conviction follows. Condemnation cannot justly follow proof of facts from which mere mental intention can be inferred unless there is also proof of acts from which the presumption necessarily arises that there is the beginning to put into execution the unlawful intent. The sailing for a prohibited port, after knowledge of the blockade, with intent to enter is held to be such overt act. So, the appearance before a blockaded port for the alleged purpose of inquiry, when the blockade is generally known, has been held to be a breach of the blockade, on the ground that such approach would afford great facility for eluding it, and knowledge honestly sought could be obtained elsewhere.

Sir William Scott is the great luminary from which we derive most of our light on the law of prize. He regarded the breaking of a blockade as an act of deep turpitude. In that opinion I do not agree, perhaps from an early experience of, and modest participation in, some of its benefits; and I am aware that, notwithstanding his great ability, his purity of character, and charming manners, he did not escape the censure of his contemporaries, and that the severity of his judgments led to the charge of 'ministerial subserviency.' In The Neutralitet, 6 C.Rob.Adm. 35, with a vigor and beauty of diction which must charm, if it does not convince, he thus states the law:

'It will not be necessary in the present case to lay down a general principle on this point, but I am disposed to agree to a position advanced in argument that a belligerent is not called upon to admit that neutral ships can innocently place themselves in a situation where they may with impunity break the blockade, whenever they please. If the belligerent country has a right to impose a blockade, it must be justified in the necessary means of enforcing that right; and if a vessel could, under the pretense of going further, approach cy-pres, close up to the blockade port, so as to be enabled to slip in without obstruction, it would be impossible that any blockade could be maintained. It would, I think, be no unfair rule of evidence to hold as a presumption de jure that she goes there with an intention of breaking the blockade; and if such in inference may possibly operate with severity in particular cases, where the parties are innocent in their intention, it is a severity necessarily connected with the rules of evidence, and essential to the effectual exercise of this right of war.' Describing the catholic character of the prize jurisdiction, he thus expressed himself:

'I trust that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me, namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction, to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character.' 1 C.Rob.Adm. 295.

With this statement of the principles of law generally applicable in cases of this nature, the circumstances attending the capture will now be considered, as bearing upon the charge that the Newfoundland was loitering in the neighborhood of Havana with intent to enter. Lieut. Evans, in command of the U.S.S. Tecumseh, testifies that about 5 o'clock in the afternoon of July 19th, while on his station in the blockading squadron, 6 or 8 miles to the north and eastward of Havana light, and about 3 1/2 miles from the nearest shore, he sighted the Newfoundland moving towards him on a westerly course; that he immediately stood towards her at full speed,-- about 10 knots,-- and overhauled her, sending his mate aboard to examine her papers. He estimates his position at the time as being latitude 23 degrees 15' N longitude 82 degrees 13', and on a diagram prepared by the navigating officer of the Mayflower, and offered in evidence, he fixes her position as being unquestionably within a dotted circle,-- thinks that it was about the center of the circle, but, having taken no measurements at the time, would not undertake to fix it closer than within three miles. He fixes the hour of boarding at 5:35, and says that he left her 'in the vicinity of 6 o'clock,' she bearing off on a course about west by one-half north. Mate Nickerson of the Tecumseh fixes her position at the time of sighting the Newfoundland at 6 to 8 miles from Morro light, and about 3 1/2 to 4 miles from the nearest shore, the Newfoundland being at that time about 9 miles to the northward and eastward, sailing west; the Tecumseh sailing about 4 miles to overhaul her. He fixes the hour of boarding at 5:35 exactly, and says that he returned aboard his ship about 5:50. He failed to enter upon the log of the Newfoundland the hour of boarding, as is usually, and always should be, done. He locates the point of boarding upon the diagram as does Lieut. Evans; saw the Newfoundland for about 10 minutes after she stood off, one or two points to the north of west; and says, 'It began to settle down dusk then. ' Ensign Pratt, of the Mayflower, whose watch began at 8 o'clock, testifies that about 8:20 he picked up a small light bearing north by west from him, reported the same to the commanding officer, who ordered the ship headed for it north by west, and the engines rung ahead full speed. Shortly after heading for it, the light was lost, but, standing on the same course about 20 minutes, and putting on forced draft, the light was picked up again a little to the westward. Altering his course, and heading north-northwest, the light shortly disappeared again. He gradually changed his course to the westward until he headed about northwest, standing on that course about 30 minutes, still not seeing the light, when about 9:10 he sighted it again, bearing southwest on his port beam, and inshore, headed for it again, and stood on until about 9:30, when the light was seen outshore of him on his starboard beam, and headed for it again, and came up with her at 10 o'clock. From subsequent developments it is probable that the light thus described was that of a lantern hanging on the wall of the companion way in the after deck house of the Newfoundland, visible only when nearly abeam through the doors on either side. It would be open only to about three-fourths of a point of the compass, and the Mayflower, at full speed, making at times 16 miles an hour, would pass the point of visibility, until, by changing her course, it would again become visible, and be picked up first on one quarter, then on the other. When the light was first seen, the Mayflower was heading east-northeast, and the light was bearing north by west from her, a point forward of the port beam, and estimated to be from two to three miles distant. No other lights were seen on the Newfoundland until she was overhauled. At that time all of the regulation lights were found to be burning brightly. Lieut. Culver, navigating officer of the Mayflower, describes the chase substantially as above, and exhibits a tracing made on July 20th, showing the estimated positions of the respective vessels at the time when the light was first discovered and at the time of the capture, and the course sailed by each. Commander Mackenzie, of the Mayflower, was the senior officer of...