ed in the opinion in the Mitchell County bond having been forfeited, an execution was Case; so far as the prior cases are cited at awarded thereon by the judgment of the disall they are cited with approval, and there trict court, rendered April, 1822, which it is certainly nothing to indicate that the was asserted created a sien upon the lands, court intended to overrule them. That court and overreached certain conveyances under had not changed in its personnel since the which the defendants claimed, dated Febru. prior judgments, except the first, were pro- ary and March, 1823. The circuit court was nounced, and it is not probable that the judges of opinion that the lien did not overreach would have changed their views without these conveyances. But the court of appeals some reference to such change. Indeed, but of Virginia having subsequently decided one of the earlier cases was cited in the that the lien of a judgment continued pendMitchell County Case (Bassett v. El Paso, ing proceedings on a writ of fi. fa., this court 88 Tex. 175), and that supports rather than adopted this subsequent construction by such conflicts with the opinion. As we read them, court, and reversed the decree of the circuit they merely decided that some provision for court. payment must be made. In the Mitchell In Green v. Neal's Lessee, 6 Pet. 291 (8: County Case the question was for the first 402], a construction given by the supreme time presented whether the laws of 1881 and court of Tennessee to the statute of limita1887 were constitutional, and whether action tions of that state having been overruled, taken under these laws was an adequate this court followed *the later case, although (509) compliance with the requirement that provi- it had previously adopted the rule laid down sion should be made "at the time of creat in the overruled cases. See also Leffingwell ing" the debt for a sufficient tax to pay the v. Warren, 2 Black, 599 [17: 261); Fairfield interest and to provide a two per cent sink- v. Gallatin County, 100 U. S. 47 (25: 544]. ing fund. It was held that they were. This In Morgan v. Curtenius, 20 How. 1 [15: overruled nothing, because the question had 823), the circuit court placed a construction never before been decided, and the point was upon an act of the legislature in accordance not made in the courts below in this case. with a decision of the supreme court of IlliWe are simply called upon, then, to deter- nois with reference to the very same convey. mine what is the law of Texas upon the sub- ance, and it was held that, that being the seco ject, since, under Revised Statutes, section tled rule of property which that court was 721, the “laws of the several states

bound to follow, this court would affirm its shall be regarded as rules of decision in trials judgment, though the supreme court of the at common law in the courts of the United state had subsequently overruled its own deStates." While if this case had been brought cision, and had given the act and the same before this court before the decision in the conveyance a different construction. We do

Mitchell County Case, we might have taken not consider this case as necessarily conflict[508]the view that was taken by the courts being with those above cited.

low, treating the question as one hitherto un. an exception has been admitted to this settled in that state, we find ourselves re- rule, where, upon the faith of state decisions lieved of any embarrassment by the decision affirming the validity of contracts made or in the Mitchell County Case, which mani- | bonds issued under à certain statute, other festly applies to this case and requires a re-contracts have been made or bonds'issued versal of their judgment.

under the same statute before the prior cases But assuming that the later case was in were overruled. Such contracts and bonds tended to overrule the prior ones, and to lay have been held to be valid, upon the princi. down a different rule upon the subject, our ple that the holders upon purchasing such conclusion would not be different. In deter- bonds and the parties to such contracts were mining what the laws of the several states are, entitled to rely upon the prior decisions as which will be regarded as rules of decision, settling the law of the state. To have held we are bound to look, not only at their Con- otherwise would enable the state to set a trap stitutions and statutes, but at the decisions for its creditors by inducing them to subof their highest courts giving construction to scribe to bonds and then withdrawing their them. Polk's Lessee v. Wendal, 9 Cranch, only security. Gelpcke v. Dubuque, | Wall. 87 (3: 665); Luther v. Borden, 7 How. 1, 40 175 [17: 520]: Havemeyer v. Iowa County, [12: 581, 598]; Nesmith v. Sheldon, 7 How. 3 Wall. 294 (18:38]: Mitchell v. Burling812 [12: 925]; Jefferson Branch Bank v. ton, 4 Wall. 270 [18: 350); Riggs v. Johnson Skelly, 1 Black, 436 [17: 173]; Leffingwell County, 6 Wall. 166 [18: 768) : Lee County v. Warren, 2 Black, 599 [17: 261]; Christy Supers. v. Rogers, 7 Wall. 181 [19: 1607; v. Pridgeon, 4 Wall. 196 18: 322]; Post v. Chicago v. Sheldon, 9 Wall. 50 į19: 594]; Kendall County Supervisors, 105 U. S. 667 Olcott v. Fond du Lac County Supervisors, [26: 1204); Bucher v. Cheshire Railroad Co. 16 Wall. 678 [21:382]: Douglass v. Piké 125 U. S. 555 [31: 795].

County, 101 U. S. 677 [25: 968); Burgess y. If there be any inconsistency in the opin. Seligman, 107 U. 9. 20 [27: 359]. ions of these courts, the general rule is that Obviously this class of cases has no apwe follow the latest settled adjudications in plication here. The bonds were issued in preference to the earlier ones. The case of good faith for a valuable consideration reUnited States v. Morrison, 4 Pet. 124 [7: ceived by the county, and were purchased by 804), seems to be directly in point. The the plaintiff with no notice of infirmity at. United States recovered judgment against taching to them. If certain decisions, proMorrison, upon which a fi. fa. was issued, nounced after the bonds were issued, threw goods taken in execution and restored to the doubt upon their validity, those doubts have debtor under a forthcoming bond. This' been removed by a later decision pronouncing

Junequivocally in favor of their *validity. In the blockaded port, and was steadily pirsu. the theory of the law the construction given ing it, and when signaled persisted on her to the bonds of this description in the Mitoh

course, and did not change it until after a ell County Case is and always has been the

shot was fired, and two of her papers which

would have strongly corroborated her crim. proper one, and, as such, we have no hesita

inal intent were destroyed,—the intention to tion in following it. So far as judgments break the blockade was to be presumed. rendered in other cases which are final and 10. Restitution of the.captured vessel awarded una ppealable are concerned, a different ques- in this case without damages, and on payment tion arises.

of the costs and expenses incident to her cusThe judgments of the Court of Appeals and tody and preservation, and of all costs in the of the Circuit Court must be reversed, and cause except the fees of counsel. the case remanded to the Circuit Court for the Western District of Texas for further

(No. 704.) proceedings in conformity with this opinion. Argued April 11, 13, 1899. Decided May 15,



Court of the United States for the Dis

trict of South Carolina in a prize case in (See 8. C. Reporter's ed. 510-539.)

which a libel was filed by the United States Vessel captured in attempting to run a

against the Steamship Olinde Rodrigues and blockade- what is an effective blockade cargo, for violation of blockade, holding that single blockading cruiser-right to put in the blockade of San Juan, Porto Rico, was further proofs-evidence of evil intent- not an effective blockade and ordering the probable cause for capturing vesselde- restitution of the ship to the claimants. The struction of paperswhen restitution will steamship was owned and claimed by La

Transatlantique, a be decreed conditionally-when intention Compagnie Générale to run blockade is presumed_terms of

French corporation. Decree modified, and restitution of captured vessels.

as modified, affirmed.

See same case below, 91 Fed. Rep. 274. 1. A vessel actually captured in attempting to

enter a blockaded port, af er warning entered Statement by Mr. Chief Justice Fuller:
on her log by a cruiser off that port only a *This was a libel filed by the United[511)
few days before, cannot dispute the efficiency States against the steamship Olinde Rod-

of the force to which she was subjected. 2. An effective blockade is one that is so ef- South Carolina, in a prize cause, for vio

rigues and cargo in the district court for fective as to make it dangerous in fact for lation of the blockade of San Juan, Porto vessels to attempt to enter the blockaded Rico. The steamship was owned and claimed

port. 8. The effectiveness of a blockade is not de. by Ia Compagnie Générale Transatlantique,

termined by the number of the blockading a French corporation.
force. If a single modern cruiser blockading

The Olinde Rodrigues left Havre, June & port renders it in fact dangerous for other 16, 1898, upon a regular voyage on a West craft to enter the port, the blockade is Indian itinerary prescribed by the terms of practically effective.

her postal subvention from the French gov. Where the claimant has declined to put in ernment. Her regular course, after touchfurther proofs as to the violation of the ing at Paulliac, France, was St. Thomas, blockade under the order of the district court, San Juan, Port au Platte or Puerto Plata, he cannot, as a matter of right, demand that Cape Haytien, St. Marque, Port au Prince, the cause shall be opened again for further Gonaives, and to return by the same ports,

proof. 5. The evidence of evil intent must be clear the voyage terminating at Havre. The proc

and convincing, before a merchant ship be- lamation of the President declaring San Juan longing to citizens of a friendly nation will in a state of blockade was issued June 27, be condemned for attempting to run a block- 1898. The Olinde Rodrigues left Paulliac ade.

June 19, and arrived at St. Thomas July 3, 6. Probable cause for making the capture of 1898, and on July 4, in the morning, went

& vessel for attemnting to run a blockade ex-into San Juan, Porto Rico. She was seen
ists where there are suficient circumstances by the United States auxiliary cruiser Yo-
to warrant suspicion, though they may turn
out to be not sufficient to warrant condemna- semite, then blockading the port of San Juan.

On the fifth of July, 1898, the Olinde 7. The concealment and destruction of papers Rodrigues came out of the port of San Juan, of a captured vessel authorize the presump

was signalled by the Yosemite, and on comtion of an intention to sunnress incriminat- municating with the latter asserted that she ing evidence but such presumption is not had no knowledge of the blockade of San conclusive when the concealment was owing Juan. Thereupon a boarding officer of the to forgetfulness, and the destruction to the Yosemite entered in the log of the Olinde belief that the papers were useless.

Rodrigues an official warning of the blockade, 8. Even if the facts are not found to be suf- and she went on her way to Puerto Plata and

ficient to condemn, restitution will not neces; other ports of San Domingo and Haiti. She
sarily be made absolutely, but may be decreed left Puerto Plata on her return from these
conditionally as each case requires ; and an
order of restitution does not prove lack of ports, July 16, 1898, and on the morning of
probable cause.

July 17 was captured by the United States 9. Where the captured vessel had been warned armored cruiser New Orleans, then block

of the blockade and was on a course toward ading the port of San Juan, as attempting to


enter that port. A prize crew was put on Messrs. J. P. Kennedy Bryan, Henry [512]board and the vessel was *taken to Charles. M. Hoyt, Assistant Attorney General, and

ton, South Carolina, where she was libelled, John W. Griggs, Attorney General, for apas before stated, July 22, 1898. Deposi- pellant. tions of officers, crew, and persons on board Messrs. Edward K. Jones and Eustis, the steamship were taken by the prize com Jones, & Govin for appellee. missioners in preparatorio, in answer to cer. tain standing interrogatories, and the papers *Mr. Chief Justice Faller delivered the[513] and documents found on board were put in opinion of the court: evidence. Depositions of officers and men We are unable to concur with the learned from the cruiser New Orleans were also taken District Judge in the conclusion that the de bene esse, but were not considered on the blockade of the port of San Juan at the time preliminary hearing except on a motion by this steamship was captured was not an ef. the district attorney for leave to take further fective blockade. proofs.

To be binding, the blockade must be known, The cause having been heard on the evi- and the blockading force must be present; dence in preparatorio, the district judge but is there any rule of law determining that ruled, August 13, for reasons given, that the the presence of a particular force is essential Olinde Rodrigues could not, under the evi- in order to render a blockade effective? We dence as it stood, be condemned for her entry do not think so, but on the contrary, that the into the blockaded port of San Juan on July test is whether the blockade is practically 4, and her departure therefrom July 5, 1898; effective, and that that is a question, though nor for attempting to enter the same port on a mixed one, more of fact than of law. July 17; but that the depositions de bene The fourth maxim of the Declaration of esse justified an order allowing further proofs, Paris (April 16, 1856), was: "Blockades, and stated also that an order might be en- in order to be binding, must be effective, that tered, "discharging the vessel upon stipula. is to say, maintained by a force sufficient tion for her value, should the claimant so really to prevent access to the coast of the elect.” 89 Fed. Rep. 109. An order was enemy.” Manifestly this broad definition accordingly entered that the captors have was not intended to be literally applied. *The[514) ninety days to supply further proof “as to object was to correct the abuse, in the early the entry of the 'Olinde Rodrigues' into the part of the century, of paper blockades, where port of San Juan, Porto Rico, on July 4, extensive coasts were put under blockade by 1898, and as to the courses and movements proclamation, without the presence of any of said vessel on July 17, 1898;" and “that force, or an inadequate force; and the ques. the claimants may thereafter have such time tion of what might be sufficient force was to offer testimony in reply as may seem necessarily left to be determined according to proper to the court."

the particular circumstances. The cargo was released without bond, and This was put by Lord Russell in his note on September 16 the court entered an order to Mr. Mason of February 10, 1861, thus: releasing the vessel on "claimants' giving "The Declaration of Paris was in truth di. bond by the Compagnie Générale Transat rected against what were once termed 'paper lantique, its owners, without sureties, in the blockades ;' that is, blockades not sustained sum of $125,000 conditioned for the payment by any actual force, or sustained by a noof $125,000 upon the order of the court in toriously, inadequate naval force, such as the event that the vessel should be con- an occasional appearance of a man-of-war demned.” The bond was rot given, and the in the offing or the like.

The intervessel remained in custody.

pretation, therefore, placed by Her Majesty's Evidence was taken on behalf of the United government on the Declaration was, that a States, and the cause came on for hearing blockade, in order to be respected by neutrals, on a motion by the claimants for the dis. must be practically effective.

It is charge and restitution of the steamship on proper to add that the same view of the the grounds: (1) That the blockade of San meaning and effect of the articles of the Dee

Juan at the time of the capture of the Olinde laration of Paris, on the subject of block(613) Rodrigues was not an effective *blockade; ades, which is above explained, was taken by

(2) That the Olinde Rodrigues was not vio- the representative of the United States at the luting the blockade when seized.

Court of St. James (Mr. Dallas) during the The district court rendered an opinion De communications which passed between the cember 13, 1898, holding that the blockade ent war, with a view to the accession of the

two governments some years before the pres. of San Juan was not an effective blockade, United States to that Declaration." Hall's and entered a decree ordering the restitution Int. Law, $ 260, p. 730, note. of the ship to the claimants. 91 Fed. Rep. 274. From this decree the United States ap- bates of May, 1861, given by Mr. Dana in

The quotations from the Parliamentary depealed to this court and assigned errors to note 233 to the eigł th edition of Wheaton on the effect: (1) That the court erred in International Law, afford interesting illusholding that there was no effective blockade of trations of what was considered the measure the port of San Juan on July 17, 1898; (2) of effectiveness; and an extract is also there that the court erred in not finding that the given from a note of the Department of ForOlinde Rodrigues was captured while she was eign Affairs of France of September, 1861, in violating the blockade of San Juan, July 17, which that is defined: "Forces sufficient to 1898, and in not decreeing her condemnation prevent the ports being approached without. as lawful prize.

exposure to a certain danger.”

In The Mercurius, 1 C. Rob. 80, 84, Sir | driven off by accidents of weather, which William Scott stated: “It is said this pass. must have entered into the contemplation of age to the Zuyder Zee was not in a state of the belligerent imposing the blockade, there blockade; but the ship was seized immediate is no reason to suppose that such a circumly on entering it; and I know not what else stance would create a change of system, since is necessary to constitute blockade. The it could not be expected that any blockade powers who formed the armed neutrality in would continue many months, without being

the last war understood blockade in this liable to such temporary interruptions. But [615) sense; and Russia, who was the principal when a squadron is driven off by a superior

party in that confederacy, described a place force, a new course of events arises, which to be in a state of blockade when it is dan. may tend to a very different disposition of gerous to attempt to enter into it.

the blockading force, and which introduces, And in The Frederick Moll:c, 1 C. Rob. 86, therefore, a very different train of presumpthe same great jurist said: "For that a legal tions, in favor of the ordinary freedom of blockade did exist results necessarily from commercial speculations. In such a case the these facts, as nothing farther is necessary neutral merchant is not bound to foresee or to constitute blockade than that there to conjecture that the blockade will be reshould be a force stationed to prevent com- sumed.' And undoubtedly a blockade may munication, and a due notice, or prohibition, be so inadequate, or the negligence of the bel. given to the party.”

ligerent in maintaining it may be of such a Such is the settled doctrine of the English character, as to excuse neutral vessels from and American courts and publicists, and it is the penalties for its violation. Thus in the embodied in the second of the instructions case of an alleged breach of the blockade of issued by the Secretary of the Navy, June 20, the island of Martinique, which had been car. 1898, General Order No. 492: "A blockade to ried on by a number of vessels on the difbe effective and binding must be maintained ferent stations, so communicating with each by a force sufficient to render ingress to or other as to be able to intercept all vessels egress from the port dangerous."

attempting to enter the ports of the island, Clearly, however, it is not practicable to it was held that their withdrawal was a neg. define what degree of danger shall constitute lect which "necessarily led neutral vessels to a test of the efficiency and validity of a believe these ports might be entered without blockade. It is enough if the danger is real incurring any risk.” The Nancy, 1 Acton, and apparent.

57, 59. In The Franciska, 2 Spinks, Eccl. & Adm. But it cannot be that a vessel actually capRep. 128, Dr. Lushington, in passing on the tured in attempting to enter a blockaded question whether the blockade imposed on the port, after warning entered on her log by a port of Riga was an effective blockade, said: cruiser off that port only a few days before, "What, then, is an efficient blockade, and could dispute the efficiency of the force to how has it been defined, if, indeed, the term which she was subjected. definition can be applied to such a subject : As we hold that an effective blockade is a The one definition mentioned is, that egress blockade so effective *as to make it dangerous(517) or entrance shall be attended with evident in fact for vessels to attempt to enter the danger; another, that of Chancellor Kent (1 blockaded port, it follows that the question Kent's Com. 146), is that it shall be appar- of effectiveness is not controlled by the num. ently dangerous. All these definitions are ber of the blockading force. In other words, and must be, from the nature of blockades, the position cannot be maintained that one loose and uncertain; the maintenance of a modern cruiser though sufficient in fact is blockade must always be a question of de- not sufficient as matter of law. gree, -of the degree of danger attending ships Even as long ago as 1809, in The Nancy, 1 going into or leaving a blockaded port. Acton, 63, where the station of the vessel Nothing is further from my intention, nor, was sometimes off the port of Trinity and, at indeed, more opposed to my notions of the others, off another port more than seven Law of Nations, than any relaxation of the miles distant, it was ruled that, "under par. rule that a blockade must be efficiently main-ticular circumstances a single vessel may be tained; but it is perfectly obvious that no adequate to maintain the blockade of one force could bar the entrance to absolute cer- port and co-operate with other vessels at the tainty; that vessels may get in and get out same time in the blockade of another neighduring the night, or fogs, or violent winds, boring port;" although there Sir William or occasional absence; that it is most difficult Grant relied on the opinion of the commandto judge from numbers alone."

er on that station that the force was com(516) *"It is impossible,” says Mr. Hall (260), pletely adequate to the service required to

"to fix with any accuracy the amount of dan. be performed.
ger in entry which is necessary to preserve The ruling of Dr. Lushington in The Fran-
the validity of a blockade. It is for the prize ciska, above cited, was to that effect, and the
courts of the belligerent to decide whether in text books refer to other instances.
a given instance a vessel captured for its The learned district judge, in his opin.
breach had reason to suppose it to be non- ion, refers to the treaty between France and
existent; or for the neutral government to Denmark of 1742, which provided that the
examine, on the particular facts, whether it entrance to a blockaded port should be closed
is proper to withhold or to withdraw recogni. by at least two vessels of a battery on shore;

to the treaty of 1760 between Holland and In The Hoffnung, 6 C. Rob. 112, 117, Sir the Two Sicilies prescribing that at least six William Scott said: “When a squadron is' ships of war should be ranged at a distance

[ocr errors]

slightly greater than gunshot from the en coast of Porto Rico, but of the port *of San[519)
trance; and to the treaty between Prussia Juan, a town of less than 25,000 inhabitants,
and Denmark of 1818, which stipulated that on the northern coast of Porto Rico, with a
two vessels should be stationed before every single entrance. From June 27 to July 14,
blockaded port; but we do not think these 1898, the Yosemite, a merchant ship con-
particular agreements of special importance verted into an auxiliary cruiser, blockaded
here, and, indeed Ortolan, by whom they the port. Her maximum speed was fifteen
are cited, says that such stipulations cannot and one-half knots; and her armament ten
create a positive rule in all cases even be- 5-inch rapid firing guns, six 6-pounders, two
tween the parties, “since the number of ves. 1-pounders, with greatest range of three and
sels necessary to a complete investment de one-half miles. While the Yosemite was
pends evidently on the nature of the place blockading the port she ran the armed trans-
blockaded.” 2 Ortolan, 4th ed. 330, and note port Antonio Lopez aground six miles from

San Juan; gave a number of neutral vessels Nor do we regard Sir William Scott's official notice of the blockade; warned off judgment in The Arthur (1814) Dodson, many from the port; and on the 5th of July, 423, 425, as of weight in favor of claimants. 1898, wrote into the log of the Olinde RodIn effect the ruling sustained the validity of rigues, off San Juan, the official warning of the maintenance of blockade by a single ship, the blockade of San Juan. Ou July 14 and

and the case was thus stated : “This is a thereafter the port was blockaded by the ar[618]claim made by one of His Majesty's *ships to mored cruiser New Orleans, whose maximum

share as joint-captor in a prize taken in the speed was twenty-two knots, and her armariver Ems by another ship belonging to His ment six 6-inch breech-loading rifes, four Majesty, for a breach of the blockade im: 4.7-inch breech-loading rifles, ten 6-pounders, posed by the order in council of the 26th of four 1.5-inch guns, corresponding to 3-poundApril, 1809. This order was, among others, ers; four 3-pounders in the tops; four 37-mil:issued in the way of retaliation for the meas- imeter automatic guns, corresponding to l. ures which had been previously adopted by pounders. The range of her guns was five and the French government against the commerce one-half sea miles or six and a quarter stat. of this country. The blockade imposed by ute miles. If stationary, she could command a it is applicable to a very great extent of circle of thirteen miles in diameter; if movcoast, and was never intended to be main ing at maximum speed, she could cover in tained according to the usual and regular five minutes any point on a circle of sevenmode of enforcing blockades, by stationing a teen miles diameter; and in ten minutes any number of ships, and forming as it were an point on a circle of nineteen miles diameter; arch of circumvallation around the mouth her electric search lights could sweep the sea of the prohibited port. There, if the arch by night for ten miles distance; her motive fails in any one part, the blockade itself fails power made her independent of winds and altogether; but this species of blockade, currents; in these respects and in her armawhich has arisen out of the violent and un- ment and increased range of guns she so far just conduct of the enemy, was maintained surpassed in effectiveness the old-time war by a ship stationed anywhere in the neigh- ships that it would be inadmissible to hold borhood of the coast, or, as in this case, in that even if a century ago more than one ship the river itself, observing, and preventing was believed to be required for an effective every vessel that might endeavor to effect a blockade, therefore this cruiser was not suffipassage up or down the river."

cient to blockade this port. Blockades are maritime blockades, or Assuming that the Olinde Rodrigues atblockades by sea and land; and they may be tempted to enter San Juan July 17, there either military or commercial, or inay par. can be no question that it was dangerous for take of the nature of both. The question of her to do so, as the result itseli demoneffectiveness must necessarily depend on the strated. She had had actual warning twelve circumstances. We agree that the fact of days before; no reason existed for the supa single capture is not decisive of the effect. position that the blockade had been preteriveness of a blockade, but the case made on mitted or relaxed ; *her commander had no[520] this record does not rest on that ground. right to experiment as to the practical ef

We are of opinion that if a single modern fectiveness of the blockade, and, if he did so, cruiser blockading a port renders it in fact he took the risk; he was believed to be makdangerous for other craft to enter the port, ing the attempt, and was immediately cap; that is sufficient, since thereby the blockade tured. In these circumstances the vessel is made practically effective.

cannot be permitted to plead that the blockWhat, then, were the facts as to the ef. ade was not legally effective. fectiveness of the blockade in the case before After the argument on the motion to disus?

charge the vessel, application was made by In the proclamation of June 27, 1898, oc- counsel for the claimant to the district curs this paragraph: “The l'nited States judge, by letter, that the Navy Department of America has instituted and will inaintain be requested to furnish the court with all letan effective blockade of all the ports on the ters or despatches of the commanders of vessouth coast of Cuba, from Cape Frances to sels blockading the port of San Juan in re Cape Cruz, inclusive, and also of the port of spect to the sufficiency of the force. And a San Juan, in the island of Porto Rico." | motion was made in this court “for an order (Proclamation No. 11, 30 Stat. at L. 34.) authorizing the introduction into the record The blockade thus announced was not of the of the despatches of Captain Sigsbee_and

« ForrigeFortsett »