The Sophia Elizabeth. 1 Acton. Court of Admiralty, condemning The Sophia Elizabeth, and two other vessels similarly circumstanced, for a breach of the blockade of the rivers Elbe and Weser. In the High Court of Admiralty, a claim was made for the cargo, as the property of F. W. Schultz, and others, burghers and merchants of the imperial city of Bremen. The cause came on for hearing, and the judge directed it to stand over, in order to enable the parties to obtain information with respect to any permission, from his Majesty's government, for the transportation of goods in small vessels between Bremen and Tonningen, during the blockade of the Elbe and Weser; and finally condemned the cargo, as prize to the captors. Jenner and Stephen, for the captors- The arguments which may be made use of on this occasion, are applicable to three other cases of appeal now on your lordship's list, under similar circumstances; and the decision in this case will necessarily involve the fate of the cargoes of the other two vessels, which have also been claimed as the property of neutral merchants. The first and most material question for decision is, whether the voyage which this vessel had * undertaken, was a breach of the blockade of the river [ 47 ] Weser. By an order of council, on the 16th April, 1806, the rivers Ems, Weser, and Elbe, were declared to be blockaded, and notice generally given of this circumstance. Immediately afterwards, application was made to the British government for a relaxation of the blockade, so as to allow the inhabitants of the Hanse Towns to carry on their trade by a navigation in small vessels over the Watten or Flats, in the same manner as had been permitted in the former blockade. This permission was granted, as appears by the letter of Mr. Thornton, dated May 20th, 1806, particularizing the free passage of the Watten between the Eyder, Elbe, Weser, and Jahde, to be permitted, in the same manner as had been before granted to lighters and small vessels. The reason assigned by the petitioners for this permission, was its necessity, in order to prevent the remaining trade of the city of Bremen being transferred to Embden, and the terms on which the grant had been made in the former instance, in 1804, were, that the permission should not be abused, or any advantage taken so as to compel his Majesty to revert to all the strictness of the blockade. The same reason existed for this requisition in 1806; and if not actually expressed, it was perfectly well understood that on such terms alone, the permission would have been granted. On the 16th of May, another order of council was issued, declaring the ports from the Elbe to Brest harbor, in a state of blockade. By this order, no vessels were permitted to clear out from any of these ports, except those neutrals The Sophia Elizabeth, 1 Acton. not laden in any of the ports of the enemy, or destined thereto, and whose cargoes neither consisted of enemy's property, or con[* 48 ] traband of war. Of the nature of this order the * inhabitants of Bremen were perfectly aware, as, in the correspondence annexed, a letter from one of the parties, dated the 31st of May, proves. Notwithstanding which, the claimants, on the 5th of July, entered into a charter party to freight the vessel with goods for Algesiras, in Spain. The claimants, despairing of being able to procure a free passage for the vessel, with her cargo on board, out of the mouth of the Weser, sent her in ballast to Tonningen, and informed the master that a cargo should immediately follow her in lighters over the Watten to Tonningen, as the only probable means by which the vessel might escape the vigilance of the British cruisers. The vessel arrived at Tonningen, when she took on board the cargo thus conveyed after her, and sailed from thence on the 20th of August, for Algesiras, on the passage to which place she was captured, and carried into Plymouth. From a review of the mode adopted for procuring this ves-. sel a probability of a safe passage, it must appear, that with the most accurate knowledge of the intention of our government, and the extent of relaxation granted in favor of the inhabitants of Bremen, the claimants had deliberately planned, and so far executed a fraud, which, if now permitted to pass unpunished, would hereafter afford a precedent for practising, with success, on that lenity and forbearance which has ever characterized the execution of the offensive or defensive operations of the British government, where the interests of neutral nations has been materially concerned.. Hence, should the court be induced to confirm the sentence appealed from, the claimants cannot possibly object that they are overtaken by any unforeseen calamity or hardship. They were aware of the consequences of en[* 49 ] gaging in a trade * violating the express letter of the order announcing the blockade; and the only hope they could entertain of succeeding, was in evading a search after the vessel had, by this artifice, passed the blockading squadron, on her way from Bracke, in the Weser, to Tonningen. It is intended to justify the conduct of these persons by attempting to prove, that the relaxation granted in consequence of Mr. Fox's letter to Mr. Thornton, dated the 9th of May, was applicable to the subsequent order for the blockade of all the ports from the Elbe to Brest, inclusive. This cannot be even inferred from the terms of either Mr. Fox's or Mr. Thornton's letter, in both which particular reference is made to the navigation of the Watten, and in the last, there is contained a detailed statement of the manner in which this indulgence is to be granted, and an enumeration of those vessels actually within the limitation or scope of the The Sophia Elizabeth. 1 Acton. relaxation. Throughout, there appears to be no understanding whatever that it was intended, after the notification of the 16th May, to permit these cities the liberty of foreign commerce; and, least of all, can it be supposed that there was any intention on the part of government to permit any foreign commerce with the enemy's ports, when the order for a general blockade expressly prohibits the entrance or exit of any neutral vessels laden with the property of the enemy, or coming from or destined to the enemy's ports. The only relaxation that was ever intended, was comprised in permitting a communication between neutral ports. The sole remaining grounds of defence on which they can with any degree of confidence rely, is to prove, either that this was not a continuous voyage from Bremen by Tonningen to Algesiras, or that the vessel was not captured *until after the removal of the blockade. This vessel, it is [* 50 ] admitted, however, was captured on the 16th, whilst the blockade was raised on the 25th of September following; and the circumstance of the cargo's accompanying the vessel to Tonningen, proves that it was a continuous voyage. It is true, that in the case of The Maria Monsees,1 when a somewhat similar relaxation of the blockade of the Weser was proved to have taken place, the judge of the High Court of Admiralty extended the benefit of that order for relaxation to a foreign commerce by neutrals, though not absolutely within the letter of the admiralty order. But here there is no room for any latitude of construction; the terms specifying the relaxation, are precise and defined, and the enemy's ports absolutely interdicted by the subsequent blockade. When so considerable an indulgence. had been granted by the belligerent to neutrals, at their own urgent solicitation, the attempt to counteract the effect of a blockade, founded on the principle of political necessity, deserves exemplary punishment; and when the claimants are detected in availing themselves of this indulgence, to make a colorable voyage from Tonningen to the enemy's port, with papers calculated to support this fraudulent intention, the court will be, no doubt, induced to confirm the sentence appealed from, and condemn the appellants in the captor's expenses. Dallas and Arnold, for the appellants - In the court below, the claimants have been unable to procure that documentary evidence upon which they principally rested their hopes of establishing their claim. In searching amongst the papers of the secretary of state's office, two material documents were missing, *which [* 51 ] 1 Robinson's Reports, vol. vi. part 2. The Sophia Elizabeth. 1 Acton. there is reason to apprehend might have made a considerable alteration in the merits of the case, had they been exhibited to the judge of that court. These have, since the sentence, been obtained, and are now amongst the papers of this cause. From the whole tenor of the official letters which passed respecting the relaxation of the blockade of the Weser, it must appear, that a reference is made to an intention of government, by some specific order, to apply a remedy to the grievance of which they complained. In the letter of Mr. Fox of the 9th of May, he assures Mr. Thornton, that such is his Majesty's wish; and that as soon as possible a new order shall be made out for that purpose, permitting him in the meantime to act as if this order had really been issued. Hence, it appears plainly there is a reference made to an order which then seems only to have existed in the minds of his Majesty's ministers, the extent of whose indulgence the appellants, amongst others, were no doubt encouraged to hope, from the prompt acquiescence with which their application had been received, would have been proportioned to the pressure and inconvenience of the grievance against which they had so successfully remonstrated. Upon the receipt of Mr. Fox's letter, Mr. Thornton proceeds to notify the gracious disposition of his Majesty, and pro tempore, or while this new order was framing, issues such orders to the naval commander on the station as he presumes may remove all ground of complaint, and anticipate the intention of government. Mr. Thornton's letter absolutely embraced the Ider amongst the rivers along the Watten to which the coasting trade was intended to be per mitted, and also provides for the safe passage of all neutral [52] vessels in ballast into and out of the Weser. The cargo is carried out without being subjected to examination, under the protection of the first provision, and the vessel herself clears out for Tonningen under that of the second. The blockade of the Weser is thus strictly and literally understood, and complied with by the claimants, and so far there appears no necessity for the existence of the order, which Mr. Fox had promised, but which appears never to have been issued, for rendering these two voyages perfectly legal, even taking them as connected parts of the same transaction. The vessel and her cargo having arrived at Tonningen, there existed no prohibition to her sailing with it to any permitted port, provided the cargo itself was legal. She was, therefore, at liberty to prosecute a foreign commerce; and this, it must be admitted is the material question to which your lordships' attention should be principally directed. If there had been no relaxation, this conduct would undoubtedly amount to a breach of the blockade; but the moment the vessel was fairly out of the mouth of the Weser, she must be ad The Sophia Elizabeth. 1 Acton. mitted to be as much at liberty, as to the manner of conducting her trade, as if she were in any free port in Europe. This consequence must follow from a consideration of the terms of Mr. Thornton's letter alone, which states the relaxation to be granted in the same manner as during the late blockade; and here it is necessary to refer to the case of The Maria,1 seized in consequence of the former blockade, on a voyage from Varel, on the Jahde, to America. She had sailed in ballast from Bremen to Varel, under the relaxation of the blockade of the Weser; her cargo had been sent after in lighters, and transshipped at Varel, from which port she last cleared out. The circumstances of the voyage *were precisely similar, except [*53 ] that the present vessel took in her cargo at Tonningen, and was destined to Spain. The circumstance of her destination is, however, perfectly immaterial; for if a permission to maintain a foreign commerce be contained in the order of relaxation, the vessel is altogether at liberty to proceed on any legalized voyage. The difference of shipping ports is also unimportant, Varel and Tonningen being equally out of the limits of the existing blockades. Under these circumstances of similarity, the decision of the judge of the High Court of Admiralty in that case must be considered peculiarly applicable to the present, especially when it is considered, that the relaxation in the present case is stated in Mr. Thornton's letter to be granted precisely in the same manner as in the case of the former blockade. In giving judment, Sir W. Scott observed, that considering the nature of the communications which had passed between the accredited agent of the city of Bremen, Mr. Groning, and Lord Harrowby, then secretary of state, he was of opinion "that the passages cited to him in their natural sense applied to the external commerce of the city of Bremen. The object of the application is stated to be to prevent the remaining commerce from being transferred to the city of Embden. What commerce must we suppose to be meant? not merely the little commerce of Varel, but the remaining portion of the maritime commerce of Bremen." In commenting on those passages of Mr. Groning's letter to Lord Harrowby, complaining of the want of warehouses in Varel, the impracticability of a land passage from thence to Bremen, and the little danger there is to apprehend, that lighters passing along the Watten will resort to the territory occupied by the [ *54 ] French, the learned judge states it to be his opinion, that, in the continuation of the blockade under the relaxation then procured by Mr. Groning, it was solely the intention of the British government, 1 See page 50. 74037 |