MEMORANDA
or
FOUR CLAIMS AGAINST MEXICO 
WHICH ~WERE
SUBMITTED TO THE LATE BOARD,
AND
REJECTED,
Page.
BRIG REBECCA-Statement of the case   - - a -    O  3
Decision of the Board.....                     7
Argument on rehearing  - -. -  - - - - -  9
Final decision.  o -          -   $ 85
SCHOONER SCOTT — Statement of the case.        13
Decision of the Board  -  -.-                   21
Argument on rehearing   - - - - - - - -            7, 58
Final decision -  - - - - - -              86
SCHOONER SUSAN-Statement of the case               -    - 29
Decision of the Board        -          -      - - - - 36
Argument on rehearing.- -     - -           - - 40, 58
Final decision -.     - - -       86
SCHOONER CONSTITUITION-Statement of the case                68
Decision of the Board  - - - - - - -     -           83
Argument for rehearing  - - - - - -   -              79
Final decision. - -. -.....     -... 86
As certified by the Department of State  - - - - - - - 87
WASHINGTON, D. C.
BUELL & BLANCHIARD, PRINTER$,
1853.








CLAIMS AGAINST MEXICO.
COMPLAINT having been made to Congress, by nearly all persons
whose claims were either awarded or rejected by the late BOARD OF
COMMISSIONERS ON CLAIMS AGAINST MEXICO, of injustice done them
by said Board, it has been deemed advisable to exhibit, from the official records of the Board, the grounds of rejection adopted in a few
cases, in which a rehearing was had on argument calculated to correct
errors of fact, errors of principles, and errors of law, set forth in their
decisions; which, nevertheless, the Board refused to correct, and made
absolute, as the annexed official documents will establish. They are
printed for convenient reading by the Members of Congress, and more
particularly by the SELECT COMMITTEE OF THE SENATE charged with
inquiry into the proceedings of said Board; and given in this naked
form without comment, that the reader may from them alone make his
own unbiassed conclusion on their merits.
The persons interested in these CLAIMS have petitioned Congress
that a new Board be authorized to review and reaudit the cases herein
mentioned, and so, also, all other cases acted on by the Board, in order
that the injustice done them by said Board may be corrected.








SCHOONER REBECCA:
NATHAN EELLS, MASTER; JAMES W. ZACHARIE, CLAIMANT.
STATEMENT OF THE CASE.
The schooner Rebecca, with a lawful cargo of goods, sailed on the
4th of April, 1822, from New Orleans, on a trading voyage to Mexico.
The property was owned by the claimant, James W. Zacharie; though
at the time he had a partner in business with him, named Samuel H.
Turner.  The concern became embarrassed in consequence of this and
other heavy losses, and thereupon closed up the concern, Mr. Zacharie
agreeing to pay all the debts from private means; and in consideration
thereof; all the assets and claims were assigned to him; and, having
paid the debts, became the sole owner of all the effects, and he is the
only person who now has, or since the time of said agreement has had,
any interest in this claim.
The schooner touched, by permission of the authorities there, at
old Tampico, then called Pueblo Viejo, and landed a part or all of the
cargo. Some articles to a small amount were sold; the articles not
sold were reshipped, and the vessel regularly cleared for a further voyage. All the necessary papers for the purpose were obtained from the
Mexican custom-house for that purpose, and she left the port, but was
detained at the bar. While there, the judge, military commander, and
collector, conceived the plan of appropriating the property to themselves; and, under the pretence that they had information which excited a suspicion that it was intended to smuggle the cargo into M/Iexico, they seized her and her cargo, and by an armed force took them
back to Tampico.
In consequence of this illegal and outrageous proceeding, the claimant lost not only the cargo, but the vessel, and now presents his claim
for compensation.
The facts in this case are not numerous or complicated; and it is not
apprehended that the Board will hesitate in coming to the conclusion
that the claim is just and well sustained by the evidence.
The vessel and cargo, for which compensation is now sought, were
owned by Messrs. Zacharie & Turner, merchants of New Orleans, and
were sent out to M/Iexico in 1822, and seized by the Mexican authorities
at or near Tampico,
Vigorous efforts were made at the time to get possession of the property, and, after its sale, of the avails, but they were unsuccessful.
An agent was sent to the city of Mexico, at considerable expense, to
prevail on the central Government to interpose, as it was supposed they
would in a case of such manifest wrong; but when he arrived there he
was advised that the necessities of the Government were so great and
pressing, that it would direct the money to be paid into the treasury of




4
the General Government-and if once there, all attempts to recover it
would be unavailing; and that it would be better to seek redress of the
local authorities at Tampico, though they had committed the wrong.
This advice resulted no doubt from the fact, which the history of that
date has recorded, that a civil war then raged in Mexico, in which the
Emperor Iturbide was opposed by several leading Generals with large
bodies of troops; that battles had been fought; and, in the end, the
Emperor was overthrown and exiled, and a total change of government,
both in form and in functionaries, resulted.
It appears by the deposition of Jose Perez, a witness of wellsustained character for veracity, that the collector and judge offered,
through him, to decree an acquittal of both vessel and cargo for onehalf the avails of the sale; but, conscious that there was no pretence
for the seizure, and that, without outraging all law and justice, there
could be no sentence of condemnation, this offer was rejected, and judicial proceedings in the case urged forward.
The vessel and cargo were sold; not, however, in pursuance of any
sentence or decree of condemnation, but by consent of the parties, to
save the schooner from destruction by the worms, and the cargo from
pillage while in the custody of the Mexican officials; and the avails
went into the hands of the judge. He, however, delayed proceedings
until he became involved in a charge of high treason, was arrested,
made his escape, and ran away; taking not only the money avails of the
sale with him, but, as is supposed, all the official documents relating to
the case. This event, and the revolutionary condition of the country,
discouraged the claimant. After spending a considerable sum of money,
and seeing no prospect of recovering the property, the claimant appears
to have intermitted his efforts for some time to procure the redress of
his wrongs.
The principle is too well established to render it necessary to refer
to authorities, that the owner of property seized as prize in war, or for
violating revenue laws, is not divested of his right to it by the capture
or seizure, nor until there has been a decree of condemnation. Even in
case where there was just cause, the seizors cannot escape from liability to him for the property, without showing a regular decree of condemnation.  It is not sufficient for them to show that there is cause for
confiscation; they must show a decree of a court of competent jurisdiction, declaring its forfeiture.
This position-that capture or seizure does not divest the owner of
his right to the property-has been established, and the authorities in
support of it referred to in another case now pending before the Board,
(the case of the Escambia.) It is not deemed necessary here to repeat
the argument, or to refer again to the cases which support it; they will
be found in the printed case, (the Escambia,) at pages 25 and 26. The
undersigned will repeat the reference to only two or three cases:
"The property of a neutral is not divested by capture and sale by; a belligerent, unless condemned as prize ]Jy a competent court." —1
Johnson, JV. Y. Reports, 471, Wheelwright vs. Depeyster; same
point decided in 2 Peters./d. Decisions, 345.




"The property of the original owner is not changed by capture,
without condemnation." — Cranch, 32.
The case under consideration is as strong as any that can be conceived for the owner of the property. Though there was a seizure, no
cause for it is shown) and no decree of condemnation ever pronounced.
It is true that there was a pretext set up for the seizure, and its
character is well worthy of the particular attention of the Board.
In the protest made by the captain, mate, and sailors, at the time of
the transaction, it appears that the pretence alleged for preventing
them from sailing, after permission and the necessary papers were
granted, was, that information had been received " that his [the captain's] object in going to sea was to smuggle." There was no allegation that any law had been violated, any offence committed, but
merely that a violation of law was intended. Under this pretence, the
collector and military commander took forcible possession of the vessel
*and its valuable cargo, with all the papers on board. Though assured
by the consignee, (D'Arbel,) a highly respectable merchant, and by the
supercargo and the captain, that the accusation was entirely false, they
persisted in holding on to the property, and rejected D'Arbel's offer to
bond for the vessel and cargo. The names of the accusers were demanded, but these officers refused to give any information to justify
their conduct.
The property was sold in presence of the judge (Ortiz) on the 14th
of May, 1822, and by his order; (see Doc. No. 8.) The cause of seizure is stated in the heading of that paper. It was sold, not because
it had been condemned, but " for account of those to whom it might
belong, the cargo of the schooner Rebecca, Captain Eells, which was' seized on suspicion of an intention of smuggling."
It was not, then, pretended that there was any proof of an intention
of smuggling; but there was only a suspicion of an intention to commit an offence against the revenue laws of Mexico-not a suspicion, (it
-will be observed,) that an offence had been committed, but a suspicion
of an intention to commit such offence.
Jose Perez, a witness who is presented under circumstances which
entitle him to the utmost credibility, knew the grounds of the seizure.
He says in his deposition (Doc. No. 17) that "she was seized by the
- captain of the port, on the alleged [vague and unfounded] suspicion
of intention to fraudulently land the cargo, and sent back to port in
< charge of an armed force; that said D'Arbel remonstrated against' said violent proceedings, and gave the most positive assurance of the
innocence of intention of the officers and all persons, including himself, who were in any manner connected with the vessel and cargo,
<but without effect.")
D'Arbel, it will be recollected, was the consignee and commercial
correspondent of the owner of the vessel and cargo, and a respectable
merchant. To quiet their pretended apprehensions, he offered to give
bonds that the apprehended offence of smuggling should not be committed. But all this effected nothing towards releasing the property.
6" It was then manifest," (as Perez states,) " from the beginning, that
" the whole suspicion of fraudulent intention before mentioned was but




6
a pretext for the plunder then resolved on and afterwards consummated."
Considering the grounds on which the seizure was placed, it cannot
be a matter of surprise that the collector and judge should offer to
compromise by taking one-half the sum for which the property had
been sold, or that the supercargo should decline to accept it. Nor is
it less surprising that no trace of any judicial proceedings in the case
can be found.  The documents which are presented to the Board show
that great diligence has been made by the claimant, and considerable
expense incurred, to find any trace of judicial proceedings in the case,
but all in vain. If any such proceedings were instituted, the judge,
when he absconded, did not see fit to leave them behind him.
There is nothing in the case, as the undersigned conceives, to justify
the assumption that the seizors ever dared to go on to judgment. No
record can be found of any such judgment, or of any initiatory proceedings in any court, not even before the absconding judge. That
there was no judicial sentence in the case is not only proved by no
record being found where it would be if one existed, but by the testimony of Jose Perez, now a respectable citizen of New Orleans3 and
certified " to be worthy of full belief." He was, at the time of the
seizure of the Rebecca and her cargo, the clerk of Don Domingo D'Arbel, the commercial correspondent of the owner. He states that, after
the supercargo, acting under the advice of D'Arbel, refused to buy an
acquittal by giving up one-half of the cargo, and urged on the trial, in
full confidence of success in the result, the judge procrastinated the
proceedings, but at length fixed on a day of trial in December. but
before that day arrived he was arrested on a charge of treason  and,
while on his way to the city of Mexico, escaped from custody, fled to
the shores of the Pacific, and there died.
The undersigned has not been able to conceive any substantial ground
of opposition to this claim,
That the vessel and cargo were not confiscated most conclusively appears; and it is equally clear that no law subjecting them to confiscation was violated.
That the forcible seizure of the Mexican authorities at Tampico
was done in bad faith, and without any fair pretextj is placed beyond a
reasonable doubt,
There was nothing in the voyage itself, or the conduct of itj to excite
the suspicion which the Mexican officers affected to entertain. At the
time it was undertaken, our trade with Mexico was considerable, but it
afterwards declined in consequence of the plunder to which it was subjected. It was the usual course for vessels with large cargoes to visit
the several ports in the Gulf of Mexico.  It appears, by a certificate
from the custom-house at New Orleans, that the clearance of the
Rebecca was for Vera Cruz, but the original bill of lading, which is
annexed to the deposition of James W. Zacharie, the claimant in this
ease, (see document No. 5 B,) that her destination was Tampico and
Vera Cruz. Her visit to Tampico affords no ground whatever for
suspicion.  The bill of lading shows that she intended to do so, for the
purpose of trying that market, It also appears that she had permis



7
sion to land and sell a part of the cargo at that place. Her proposed
departure from that place afforded no cause for suspicion. She had
received from the custom-house the usual and regular papers for that
purpose. The supercargo had a clear right to seek a better market if
he thought he could find one; and no objection to his course was made
or intimated until he had left the port of Tampico. Being delayed at
the bar in getting to sea, the idea of plundering the property seems
first to have sprung up in the minds of the judge and military commandant of that place. The groundlessness of their pretence has been
commented on and exposed; and nothing now remains to be considered
but the amount of damages which resulted from the lawless and outrageous conduct of the Mexican officials.
All which is respectfully submitted.
JAMES H. CAtJSTEN.
Endorsed "Statement of the Case Schooner Rebecca, filed January
20, 1851. James H. Causten*"
BOARD OF COMMISSIONERS ON CLAIMS AGAINST MEXICO,
JMarch 21, 1851.
THE CLAIM OF JAMES W. ZACHARIE.
This claim is for the value of the schooner Rebecca and cargo, alleged to have been lost at Puebla Viejo by the illegal proceedings of
the judge of that place.
The statement of the case as set forth in the memorial is not established by the papers and evidence introduced to sustain it. From these
latter it appears that said schooner, with a cargo valued at New Orleans
at $7,676, being the joint property of Zacharie & Turner, set sail
about the 4th April, 1822, bound for Tampico and Vera Cruz. That
in due time she arrived at Puebla Viejo, and entered her cargo.  Selling, by permission, a small portion to defray expenses, she cleared with
the residue to return to New Orleans. Before the vessel crossed the
bar of Tampico, she was seized by the custom-house officers of that
port, charged with fraud, and proceedings were commenced against vessel and cargo before the judge at Puebla Viejo.
The supercargo, consignee, and captain, thinking it would be best
for the interest of the owners, agreed that the vessel and cargo should
be sold, and the proceeds deposited in court, subject to a final sentence
or decree. The decision of the case for some reason or other was put
off and protracted until, in the end, the judge having been accused of
treason, made his escape, taking with him, as is alleged, all the money
deposited and all the records of the case,
Can the party claim against the Government of Mexico under these
circumstances?
Without going fully into the question how far by the public law (by
which this case must be governed) a nation is liable for the misconduct
of its judicial officers, the Board proceeds to consider this claim as presented by the testimony and papers offered as testimony.




It not only does not appear that'the Mexican Governmeht had the
slightest agency in causing or suffering the wrong complained of to be
done to' the claimant, but, on the contrary, it appears that all knowledge
of the wrong was sedulously kept by the agents of the parties interested
from the knowledge of'that Government.
By the letter of one H._- Didier, written'in December, 1822, it is
shown that he was some short time previous at the city of Mexicog
and presented the case to Mr. Wilcox, the United States consul residing there; and the latter had a private conversation about the matter
with one of the Secretaries. The result of this was, that it would be
better not to bring the matter to the notice of the Mexican'Government, or the proceeds of the sale of the vessel and cargo would be
ordered to be paid into the national treasury. On'the contraryv the
parties were advised to make the best arrangement they could with the
judge before whom the case was brought.
The end of this conference with the consul was communicated to the
consignee and supercargo by Mr. Didier, and the former proceeded to
act under the advice given; and Messrs. Zacharie & Turner, the writer
says, would be informed by the consignee of the result of the intended
arrangement with the judge. The same letter also shows that an account of the transaction was given to the owners by the supercargo;
and this account was forwarded to them with the letter of Didier,
None of this correspondence of the supercargo or of the consignee has
been furnished to the Board.
The next step taken by the claimant in this matter appears to have
been a search for the record of the trial at Puebla Viejo, about the
commencement of the year 1844. This search seems to have resulted
in nothing save the finding an entry on the custom-house register at
that place, showing the arrival of the vessel, the entry of her cargo,
and a sale of part by permission, and her exportation of the remainder,
said to be intended for New Orleans. This record states that, after
the vessel had thus cleared, "subsequently fraud was discovered, and
the vessel and cargo were confiscated.   This effort to find the record
was followed in 1845 by a representation of the case to the United
States State Department. Thus it appears that a claim arising upon
an alleged gross and illegal act was kept entirely out of the view of the
Mexican Government by the claimant, and no notice of it brought to
the knowledge of his own Government for upwards of twenty-two years,
Upon what grounds can Mexico be held responsible for this fraud or
misconduct on the part of one of her judges?  It seems to us that if
liability for all acts of its judicial officers should attach to the nation,
it can only be on the ground that the Government receives the benefit
of or sanctions such acts. In the case before us, neither of these
probabilities arise. Before judgment, no part of the money accruing
from the sale of claimant's property can be presumed to have gone into
the national treasury; and since, by consent of the claimant, the Government of Mexico remained unadvised of the act of the judge, no
presumption can properly arise that the Government sanctioned his act.
The charge of fraud against the vessel, judging from the statements
of the agents of the claimant, was not wholly without foundation. The
vessel is said to have cleared at New Orleans for Vera Cruz. We find




9
her entering at Puebla Viejo, through the harbor of Tampico. [*] Upon
the ground (as is alleged) that the cargo would not sell at a profit
there, the cargo is reshipped, and the vessel cleared for New Orleans.
That the reason given for the reshipment of the cargo and the clearance
of the vessel for New Orleans was a mere pretence, to cover some other
design, is very apparent from the statement of the account of sales of
vessel and cargo at Puebla Viejo. The latter cost in New Orleans
$7,676, and sold at Puebla Viejo, as stated, for $23,883.20 —more
than three times the original cost.
Upon a full consideration of the whole case, the Board is of opinion
and decides that the claim is not valid against Mexico, and the same is
accordingly not allowed.
GEORGE EVANS,
CALEB  B. SMITH,    Commissioners.
ROBERT T. PAINE,
REMARKS ON THE OPINION OF THE BOARD IN THE
CASE OF THE SCHOONER REBECCA.
This vessel, having entered a Mexican port and sold a part of her
cargo, then cleared at the custom-house at Tampico for New Orleans;
but before she crossed the bar was seized by the custom-house officers,
charged with fraud, and proceedings were commenced against both the
vessel and cargo before the judge at Pueblo Viejo.
While under seizure) and proceedings for condemnation going on, the
supercargo, consignee, and captain, agreed to the sale of the vessel and
cargo, and the proceeds were deposited in court. The sale was made
by the Mexican authorities; and it distinctly appears that the motive
of the claimant's agents for consenting to the sale was to prevent the
destruction of the vessel and deterioration of the property. If the
vessel had remained only for a short time in the waters where she then
Was, she would have been destroyed by the worms, and, if ultimately released from the seizure, would have been worthless.
The avails of the sale were deposited in the court, and the judge,
having the money in possession, protracted the proceedings, but did not
decide the case, and was afterwards accused of treason) and ran away
with it.
The Board ask the question, " Can the party claim against the Gov[* NOTE.-There appears an obscurity in this sentence, which, as it charges the
vessel with fraud, is too essential to be overlooked. It may be elucidated by adding
after the word "Tampico" the following words: where she had no right togoj
because she had not cleared out at New Orleans for that port. The decision in this
case was drawn up by Colonel Paine, who pertinaciously insisted, (and the other
members of the Board concurred,) in all cases, that our vessel had no right to
enter any foreign port for which she had not cleared out on departing from the
United States. Doubtless such was the idea intended to be conveyed in this obscure passage; and it is manifest from the context that the Board charged the
vessel with fraud on that absurd ground, and based their adverse decision in part
or the whole thereon. By referring to the Board's decision in the case of the
schooner Susan, it will be seen that this point is fully set out, and, by the argument
thereon, fully answered. See pages - and -.]




10
ernment under these circumstances?"  Though the question is not
followed by a direct answer, the counsel understand the Board do answer that he cannot; the result shows that they do answer in the negative *
It is important to the claimant that there should be no doubt hereafter as to the Board's answer to this question; and as a favor the
counsel ask that this may be made more explicit than it appears to be
in their written decision; though the inference is clears that they answer
the question in the negative, yet a more direct and explicit answer is
very much desired.
There is not, nor can there be) any other question in the case, inasmuch as the Board do not pretend that there ever was any decree of
condemnation.
There must be such a decree to divest the owners of the right of
property, and to transfer it to the seizors:
" The property of a neutral is not divested by capture and sale by
a belligerent, unless condemned as prize by a competent court."1 Johnson, 471, Wheelwright vs. Depeyster, Supreme Court JVew
York, S. P. 1806; Peters' 1dm. Decisions 2d) 345, District Court
Pennsylvania, 1804.
" The property of the original owner is not changed by capture with-'out condemnation." — 1 Cranch, 32, Talmon vs. Seaman.
" Whoever sets up a title to property under a decree of condemnation, is bound to show that the court has jurisdiction of the cause, and
that the decree of the court has been rightfully pronounced upon the
application of parties competent to ask it."-La JVereyda, 8 Wheaton, 108.
The fact that they did not follow up their seizure by a decree of condemnation sustains a legal inference that there was no sufficient cause
for the seizure; and the inquiry whether there was or was not sufficient
cause for the confiscation of the property is superseded by the fact that
there was no sentence of condemnation.
If it was not a matter aside from the case, it would certainly be easy
to show that the facts sustain the legal inference of no good cause for
condemnation. As it was a work of supererogation it was not much
pressed in the former argument, and is only alluded to here.
In another respect, it is presumed, the Board will desire to alter the
language of their decision.  The Board say: " It does not appear'that the Mexican Government had the slightest agency in causing or' suffering the wrong complained of to be done to the claimant; but, on'the contrary, it appears that all knowledge of the wrong was sedu-' lously kept by the agents of the parties from the knowledge of that
Government."
This assertion has excited considerable surprise. It must have originated from some very strange and inaccurate notion of what the Government is. It is not a pure abstraction; but, so far as it acts or is
acted on, it is) and can be nothing else than, its official men. Their
acts are the acts of the Government, their knowledge is the knowledge
* Col. Paine has suggested that this paragraph seems to be disrespectful to the
board; I most explicitly disavow any such intention.




11
of the Government. It cat act in no other way nor have any other
knowledge. In this view of its functionaries, (and there can be no
other,) how can the above-quoted assertion of the Board be correct?
The custom-house officers and the judges of courts are as much a part
of the Government as the Secretary of Foreign Relations, or of the
Tre'asury, or any other officer of the Government; their acts, in their
appropriate sphere, and their knowledge of official transactions, are the
acts and the knowledge of the Government, and involve the Government in responsibilities.
How, then, can it be said that an act done by the Government is not
known to the Government? The custom-house officers and the judge,
being in fact a constituent part of the Government, inflicted the injury;
and though other public functionaries might not have been immediately
cognizant of the wrong, it cannot in correctness be said that the Government had no agency in, or knowledge of, the'wrong.
If there was nothing but the bare acts of the functionaries at Tampico, the attempt to set aside the claim in this case, upon the alleged
ground of no agehcy or knowledge of the Government, would be sustaining a defence —not a good one —by a fallacious mode of argument.
The above assertion is in still stronger conflict with the facts of the
case, for it clearly appears, in the very decision from which that assertion is extracted, that H. Didier, the agent of the owners, immediately
after the transaction went to the city of Mexico and presented the case
to Mr. Wilcox, the consul general of the United States, who laid the
case before one of the Secretaries, took his advice, and it was followed.
With this fact not only proved, but distinctly incorporated in the decision of the Board, it is said, in that very decision, that the Government "'had not the slightest agency in causing or suffering the wrong,'
and (' that all knowledge of the wrong was sedulously kept, by the
agents of the parties interested, from the knowledge of that Government."
The Government was one of the parties in interest, and by her officials (and it could act in no other way) did the wrong; and yet it is
said the Government had not the slightest agency in it. It could have
no knowledge but the knowledge of her officials, and they knew all about
the transaction, for they were the actors.
The complaint was carried by the injured party to the city of Mexico,
and laid before one of the principal Secretaries of the Executive department of the Government; and yet it is said, strange as it may appear,
that all knowledge of it was sedulously kept from the Government.
And on this ground of no agency of the Government in acts done by its
officers in their official character, and of no knowledge of a transaction
which was at great pains and expense actually and promptly laid before
one of the Secretaries of the Executive branch of the Government,
through the agency of the United States consul general, the claim to
indemnity for the loss of a valuable vessel and cargo is rejected.
The counsel will submit, if he must, to such a decision; but he cannot bring his mind to acquiesce in its justice.
All which is respectfully submitted to the honorable Board on
claims against Mexico.
JAMES H. CAUSTEN.
WASHINGTON  M]arch 28, 1851)




12
BOARD OF COMMISSIONERS ON CLAIMS AGAINST MEXICO,
April 15, 1851.
ON REVIEW OF THE CLAIM OF JAMES W. ZACHARIE
FOR LOSS OF THE SCHR. REBECCA AND CARGO.
From the argument of counsel, in support of the motion to review, it
appears that the meaning of the Board, in the former decision, was not
understood.  Technical objections are taken to several expressions
used in the first opinion. We are asked to define what we mean by
the term Government; and, in referring to a " queryl put in the
opinion, the Board is gravely required to answer it unequivocally.
The tone of argument would not be considered altogether respectful,
were it not that the counsel has denied in the margin all intention of a
want of courtesy. The Board, in its former opinion, stated that the
memorial was not sustained by the proofs, and that opinion is here reiterated. The case as made out by the testimony, if it proves anything, shows that the judge before whom proceedings were probably instituted against the vessel and cargo, committed a fraud, not only
against the claimant, but also against the laws of his country; and that
the agents of the claimant not only did not make known this fraud to
the chief political authorities of Mexico, but consented to withhold the
knowledge of it from such authorities, and proceeded to make the best
arrangement they could about the matter with the judge. The claimant was advised in 1822 of all these proceedings, and was also advised
that he would, in a very short time, be informed of the result of such
arrangement. After the lapse of twenty-two years, during which period the matter appears to have been suffered to slumber, the claimant
writes to his former consignee and agent, to know if he can find any
record of the proceedings against the vessel. None could be found,
and he then proceeds, in 1845, to obtain testimony to make up a case.
It is not a little strange, if the claim possessed any merit, that the
deposition of the consignee, to whom the arrangement with the judge had
been confided, was not taken; and it is equally strange that none of the
correspondence with the supercargo, who, it appears, wrote in 1822, or
with the captain or consignee, at the date of the event, is produced.
These persons are now dead, and it is alleged their testimony cannot
be had; but this does not remove the necessity of producing something
explanatory of the arrangement which was had with the judge. It is
not necessary that the Board should express any other opinion of these
omissions than to say that it is shown to its satisfaction that the claimant ought not to recover, and they therefore adhere to their former
opinion disallowing the claim.
GEO. EVANS,,
CALEB B. SMITH,   Commtsswners6
ROBERT T. PAINE, 




13
SCHOONER SCOTT:
CASIMER PRIETO, MASTER; JAS. W. ZACHARIE, CLAIMANT.
STATEMENT OF THE CASE.
The schooner Scott cleared at New Orleans on the 20th day of December 1824, with a valuable cargo of lawful goods, bound for Vera
Cruz; and while upon the voyage, and when near that port, to wit, on
the 4th of January, 1825, was forced near the Castle of San Juan
d'Ulloa, and compelled, from the state of the wind and sea and the contiguity of the land, to come to anchor between the City of Vera
Cruz and said Castle, within short range of the batteries of the city;
that immediately thereafter, without being boarded, warned, questioned, hailed, or notified in any manner of any interruption in the trade
to said port, the said city batteries opened their rapid and heavy fire
upon the vessel, which soon stripped her of her masts and rigging, and
so many of the gun shots struck in her hull as to cause her to fill
rapidly with water; whereupon, to save the lives of the offic srs and crew,
it became indispensably necessary, and in the midst of the firing, to run
the vessel on shore; and in the attempt to do so, the vessel sunk, but
the firing continued long thereafter. During its continuance, the officers
and crew of the vessel, aided by some soldiers and laborers from the
Castle who came to their relief, after great labor and exposure to the
firing, from which some of the people were seriously injured, succeeded in saving from the wreck a small part of the cargo, chiefly much
damaged, the residue being destroyed by the gun shots passing through
the body of the vessel from side to side, and also by the salt water in
which it was immersed and had to remain for some days, by which most
of it was entirely destroyed. After the firing had ceased, which had
extended to more than twenty-four hours, the vessel was raised by the
master, crew, and laborers, at great expense, and repaired sufficiently to
reach New Orleans, where she was still further repaired. The saved
and damaged portion of the cargo was sold at the Castle.
This case is marked with wanton barbarity, and resulted no doubt
from an idle suspicion that the intention was to trade with the Castlea suspicion that could have been easily determined by the slightest inquiry, which the authorities of the city had the convenient means to
make effectual at the first moment, viz: by hailing the vessel; and as
she was completely under the range of their guns, as the destructive
use of them fully proves, so no possible act done or contemplated by the
vessel would in any degree justify the violent outrage practiced on her.
It was a naked, unprovoked, and violent wrong of the most aggravated
character, and so gross and palpable as to render its turpitude selfevident.




14
There are two circumstances in this case, which, when brought to
view, will require but little further:
1st. The vessel's clearance, manifest, invoice, bills of lading, and all
the other papers, clearly show the voyage was intended for Vera Cruz;
and the character of the cargo is a full confirmation of that fact-the
principal part of the cargo was made up of " Platillas," being fine
white costly German linens, particularly suited for the trade and use of
the people of the city of Vera Cruz, but wholly unsuited to the use of
soldiers and others at the Castle. The residue of the cargo was comparatively trifling in amount, and probably equally well suited to either
place.
2d. The supplementary decree of blockade, of Dec. 20, 1824, was
enacted only on the very day on which this vessel cleared and sailed from
New Orleans, and the proof shows that she was not warned off; hence,
she could not by possibility have had knowledge of its existence. But
the mere necessity of enacting this supplementary decree clearly shows
that the prior paper blockade decree of October 8, 1823, had ceased to
operate; it had been either tacitly withdrawn, or gone into disuse, or so
relaxed in practice as to require a new enactment to give it vitality,
And in setting out this reviving or supplementary decree, the cause
that produced it is disclosed on its face, to wit: that a great change
had taken place, by which Mexico was encouraged to look with confidence for success in her war with Spain. It runs thus:
" Inasmuch as the nation finds itself happily in a state to sustain the'independence which the glory of its arms obtained over those of the' Spanish Government, making war until its formal acknowledgment, as' is authorized by the common right and customs received by all the; civilized countries of the globe-I command that, promoting and' protecting the means of prosecuting it, the strict blockade of the
Castle of San Juan d'Ulloa is continued, as already declared on the
8th of October of the last year, [1823,] having effect from beginning to; end, upon the terms made known in that declaration,"
It thus appears that the decree of October 8, 1823, was inoperative
when the vessel sailed on her voyage from New Orleans; and that the
ex post facto supplementary decree of December 20, 1824, could not,
and did not, revive it as against this vessel, since she had not even
knowledge of its existence; and it conclusively follows, that there was
no prohibitory law of Mexico against our trade to the Castle, if, contrary to the fact, this vessel did intend to trade there. She was forcibly prevented from entering Vera Cruz, and compelled to sell the saved
fragments of her cargo at the Castle for a trifle.
Having violated no law whatever, the naked wrong stands out in
glowing turpitude, and gives the sufferer a clear right to the indemnity
he seeks.
The case of this vessel presents for the consideration of the Board
the same questions in relation to the doctrine of blockade, that were
raised and considered on the argument in the case of the Susan. The
undersigned flatters himself that it was shown in that argument, that
the Castle never was in fact blockaded by an investing maritime force,
and that it was therefore as open at all times, while held by the Spaniards, to neutral commerce, as any port in Mexico. No principle of the




15
law of nations is better established than that which allows neutral nations to trade freely with either belligerent, unless it be in articles contraband of war, or to a port or place in the state of actual blockade.
The proclamation of a blockade, unless there be in fact an actual sufficient blockading force stationed in the vicinity, is a mere nullity; neutral nations are not required to regard it, and are not injured in their
right by it.
It is not deemed necessary in this case to reconsider the positions laid
down in the case of the Susan, but merely invite the attention of the
Board to the positions taken, principles invoked, and facts established,
in that case, because they fully apply to this also.
It will be assumed as well established, that the decree of the Supreme
Government of Mexico of the 8th of October, 1823, was a mere paper
blockade, and never had any validity in regard to neutral commerce with
the Castle of San Juan d'Ulloa-a Spanish possession-because there
was no investment of the place by an actual force. If in point of fact
it could be shown that there was, at the time of the emanation of the
decree, an investing force, it had been subsequently withdrawn, or relaxed; and that fact alone would open the place to neutral commerce.
The issuing of the supplemental decree of December 20, 1824,
(document No. 15,) which was itself no less a paper blockade, proves
that the previous decree had not been enforced, and the latter decree
was intended to revive the former one which had become extinct.
The deposition of Juan J. Presas proves that the former decree had
not been enforced; but that after it was promulgated, intercourse between the Castle and the city of Vera Cruz had been again established.
The same fact is also proved by the letter from the American Consul,
(commercial agent,) of the 5th of January, 1825, [No. 17 B,] to the
Secretary of State, in which he states:
" Hostilities have again commenced, between San Juan d'Ulloa and
Vera Cruz, and originated as follows," &c.; and he adds: " The
firing continued about twenty-four hours."
The firing alluded to by him is believed to be that which was opened upon the schooner Scott, which he says both commenced and terminated with that occasion, although it is certain that each party was
within the range of the guns of the other.
As the Castle drew its supplies from Vera Cruz, the commander
would of course abstain from provoking its inhabitants to active hostilities as far as practicable, and thus produce a relaxation of blockade;
since, on the other hand, the Castle could effectually blockade and cut
off all commerce most completely with Vera Cruz; and this mutuality
of accommodation was in fact a relaxation of the blockade. On no
other reasonable ground can the cessation of hostilities between the
Castle and City be accounted for. It is seen, by No. 17 A, that shortly
before the Scott arrived off Vera Cruz, another vessel, the brig James
and Mary, of Philadelphia, from Gibraltar, also bound to Vera Cruz,
put into Alvarado for advice, being under the apprehension that Vera
Cruz was blockaded by the Spaniards, but had no supposition so unreasonable as that the reverse was the case, viz: that the Castle was
blockaded by the city of Vera Cruz. No one could pretend, however,
that the James and Mary had not a right to go to Vera Cruz; but, in




16
a spirit of cupidity, they decoyed her by delay and treachery, until
they fitted out a vessel of war, expressly to capture her, which they
accomplished, and brought her in " as a prize, on suspicion of having
Spanish property on board," which was not true; so that, blockade or
no blockade, an American vessel could not escape from the cupidity of
the merciless Mexican authorities.
The supplemental decree of blockade, though dated the 14th of
December, at the city of Mexico, was not known at Vera Cruz until
the 20th of that month, which was the very day the Scott sailed from
New Orleans.
As a decree it was a nullity, so far as it was designed to affect neutral commerce with the Castle, because there was no investment of the
Castle by an actual force. It could not affect the claim in this case,
even if there had been an actual blockade; because the Scott sailed on
her voyage before she had, or could have had, any knowledge of it.
Whether, therefore, her destination w:as to the Castle or the city of
Vera Cruz, her voyage was a legal voyage; whether she went to the
Castle or to Vera Cruz, she went to a place where she had a perfect
right to go, and neither belligerent had, in the condition of things that
then existed, a right to interfere with her for trading with the other;
nor could she be rightfully injured for doing so.
War had, in fact, though not by definitive articles of peace, ceased
between Mexico and Spain; but if it had been in a state of rigorous
prosecution, any neutral nation had a clear right to trade with the
other under the limitations before mentioned.
As the Scott had not articles contraband of war on board, and was
not bound to a port or place in a state of actual blockade, she had a
right to trade with either belligerent, without incurring any penalty, or
exposing herself to any injury from either.
She had unquestionable right to trade with the Castle, a Spanish possession, as with Vera Cruz, a Mexican possession, so long as neither of
them were in a state of actual blockade. The Castle, as has been
satisfactorily shown, was no more blockaded than Vera Cruz. There
was, in truth, no blockading force stationed about either. Under these
circumstances, suppose the Castle had opened its guns on a neutral ship
in the harbor of Vera Cruz, and destroyed her, would not such an act
have furnished just grounds for reclamation? By what right or under
what law could Spain have resisted such a claim.?  There could be no
other ground for resisting it, but the broad. one that neutral nations
have no right to trade with belligerents, Such: a position no one will
attempt to maintain.  She could not: justify the outrage upon the
ground that the neutral ship was in delicto by trading at a blockaded
port, for Vera Cruz was not blockaded.
The case under consideration differs no way from the case supposed,
except the parties are reversed. By not putting the Castle in a state
of actual blockade, Mexico left it open to neutral trade; she had no
right to injure a neutral carrying on that trade, because it was clearly
legal by the law of nations.
It is the duty of a neutral power to protect in its harbor the public
armed vessels of one belligerent against the attacks of the other. In
the well-known case of the British squadron's attack upon the American




17
privateer General Armstrong in the harbor of Fayal, the Portuguese
Government have ever been held liable for the loss of that privateer.
Our Government has always considered this a well-founded claim
against that of Portugal, (see Senate document, 1st session 29th Congress, No. 349,) and the latter Government has only resisted it on the
ground of inability to prevent the injury.  Is not this case stronger,
twhere a neutral vessel, pursuing a permitted and legal trade, enters
the harbor of one belligerent, and is destroyed by the other belligerent?
That trade could only be interrupted by a blockade, unless it was a
trade in articles contraband of war. The manifest of the cargo shows
that there was not on board the Scott a single article of that description.
The view taken of the claim in this case renders it quite immaterial
to inquire into the intention of the claimant as to the place of trading.
Considering the nature of the cargo and the proofs in the case, the
inference is strong that the Scott was fitted out for Vera Cruz; and
her going into the vicinity of the Castle, and afterwards trading with it,
was accidental in the first instance, and then forced to it by the violent
acts of Mexico herself. Shall she now be permitted to plead her own
wrong to justify the consequences flowing from it?  The vessel had an
equal right to traffic with either of them; there was no blockade, and
no articles contraband of war were found on board.
The situation of the castle made the harbor of Vera Cruz to some
extent common to both powers. If the schooner is to be regarded in
that part of the harbor exclusively belonging to Mexico, (as was clearly
the; case, since she was under the range of her guns,) then Mexico was
bound to protect her, and had adequate means at hand to do so. To
that end it was not necessary to fire a single gun; and the outrage is
the more flagrant by not only withholding due protection, but inflicting
the wrong. But considering the vessel in that part of the harbor over
which the Castle could properly claim sole or concurrent control, which
is the view most favorable to Mexico, she ought to have been safe
against the attack from the Mexican batteries, for she was where by
the law of nations she had a right to be; she was in a trade which that
law permits to neutral vessels,
Could it be supposed that the Board would give any effect to a paper
blockade, still the claim would stand on substantial grounds.
The decree of October 8, 1823, if it had ever any force, (and it has
been shown that it could not,) had ceased. This the Mexican Government admits by the promulgation of that of the 14th December, 1824,
which was confessedly designed to revive the former one. This latter
decree was not known in Vera Cruz until the 20th of December,
and that was the very day on which the Scott left the port of New
Orleans. She not only did not, but could not, have had any knowledge
of this paper blockade.
Among the documents in this case (No. 12) is the original letter
from Captain Prieto to the United States Consul at Alvarado, written
on the 6th of January, 1825, only two days after the attack on the
schooner. In that letter the Captain states, (the letter was written at
the Castle:)
" When I sailed from New Orleans I knew not that this C(astle was
2




18
in a state of blockade, and I was not boarded during the passage by
any Mexican cruiser to advise me of the existence thereof, if any such'does exist. It is, besides, a notorious fact, that until the present
period American vessels have had free communication with this Castle,'-and the trade has always been considered legal; consequently I cannot conceive why my vessel has been treated by the Government of
Vera Cruz worse than an enemy, for the forts of that town did not
fire upon the Castle, a declared foe, but wreaked their whole vengeance' upon a defenceless pilot boat, bearing the flag of a friendly nation."
It cannot be drawn in question that the vessel sailed without any
knowledge of even the paper blockade of the Castle. It is proved
beyond all controversy.
The voyage was lawful in its inception. No notice on the voyage
was given of the pretended blockade; it was, therefore, lawfully pursued; and the vessel came to anchor near the Castle without being
warned off, or receiving the slightest notice even of the decree of the
14th December; it was, therefore, lawfully ended. From beginning
to end, all was fair and innocent on the part of the vessel. She had
run no blockade, because, in fact, there was none to run. She had
visited the Castle without any knowledge of even an intention on the
part of Mexico to interrupt neutral trade. She had done no illegal act,
She had respected all belligerent rights.  Her object was legal, and all
her conduct in prosecuting it was innocent. On no conceivable ground
could Mexico object to her course.  The attack upon her by the Mexican batteries was in every conceivable view unjustifiable, unless the
vessel was in delicto, by having on board articles contraband of war, or
violating an actual blockade; and on neither of these grounds could she
be inculpated.
The policy of Spain, in excluding her southern possessions from the
world of commerce, found them, at the date of their independence, in
a state of comparative inexperience with respect to the operation and
effect of international laws and usages, such as govern and bind nations,
That inexperience led Mexico into the error, (which, indeed, is not confined to her,) that a declaration of war carries with it authority to seize,
capture, and condemn, indiscriminately; and she has acted under that
untenable assumption' On this point the following corrective seems to
be proper:
" It may be considered as the opinion of all who have written on the' jura belli, that war gives the right to confiscate, but does not itself
confiscate the property of the enemy.  *  *  *  That the declaration of war has only the effect of placing the two nations in a state of' hostility, of producing a state of war, of giving those rights which war
confers; but not of operating by its own force any of those results'(such as a transfer of property) which are usually produced by ulterior
measures of Government.  *  *  *  If, therefore, enemy's property' had come into the ports of the United States after the war [had com-' menced,] and the President had declined to issue letters of marque' and reprisal, there was no act of Congress which, in terms, declared'it confiscated, and subjected it to condemnation.  If, nevertheless, it'was confiscable, the right of confiscation resulted not from the ex-' press provisions of any statute, but from the very state of war, which




19
subjects the hostile property to the disposal of the Government. But'until the title should have been divested by some overt act of the
Government and some judicial sentence, the property would unquestionably remain in the enemy owner; and if a peace had intervened,'it would have been completely beyond the reach of subsequent condemnation.  There was, then, no distinction recognised by any act of'Congress between enemy's property which was within the ports of the
United States at the commencement of the war [with Great Britain,' of 1812,] and enemy's property found elsewhere. Neither were declared ipso facto confiscated, and both were merely confiscable.'Wheaton on Captures, ed. of 1815, pp. 20-24; 8th Cranch, 60.
If enemies' property is thus entitled to protection and security, even
by a belligerent, in a state of actual war, with how much more reason
is the property of an innocent neutral entitled to at least an equal protection?
The fact of an existing war between Mexico and Spain did not therefore confer on Mexico any right to assail the vessel in question.
Another supposed error into which Mexico appears to have fallen is,
that a neutral vessel, having cleared out for one port with intention to
trade at a different port, thereby subjects herself not only to suspicion,
(which appears to be all-sufficient for her purpose of capture and confiscation in many cases,) but to conviction of intended wrong. On that
point a single authority need be cited:
" It is well known that, although it is the ordinary form of clearing;out from a belligerent country to bear an ostensible destination to a
neutral port, yet no one imputes that as a fraud; nor is it considered
as such an act as would justly subject neutral property on board neutral ships to be molested on that account," &c.-Rob..d, Rep., vol.
2, p. 88.
The undersigned considers an apology due to the Board for offering
either argument or authority to show the innocence of our vessels clearing out for one port and going to another port, since it has been almost
the daily practice, from all our principal seaports, from the origin of our
Government.
Another evident error into which Mexico appears to have fallen is
with regard to the principles of blockade-even five years after the
passage of the decree of October, 1823. In 1828 Mr. Poinsett negotiated a treaty with Mexico. In the discussions leading thereto, the
following protocol took place and was recorded. (See Senate Doc. 2,
25th Cong., No. 351, p. 195.)
"Protocol of a conference held between J. R. Poinsett, Esq., and his
Excellency Don Sebastian Camacho, on the 1st of JMarch, 1828.
[Extract.]
"His Excellency Don Sebastian Camacho observed, that as doubts'had occurred to his Government on the interpretation of some of the
articles of the treaty of amity, navigation, and commerce, between the'United States of America and the United Mexican States, signed on' the 12th day of February, [1828,] he had sought this conference in'order to their being explained and elucidated.




20
" The first was, the meaning attached to the concluding paragraph' of the 19th article, in which it is declared'that such places only are
blockaded which are actually blockaded by a belligerent force capable
of preventing the entry of the neutral;' because, in the relative
maritime strength of the two contracting parties, Mexico might blockade a Spanish port with two or three frigates, and the Government of'the United States of America might break through that blockade by a
superior force.
" Mr. Poinsett replied, that such an act would be considered hostile,
and clearly was not meant by the spirit or the words of the 19th
article.  The principal object of inserting that article was to prevent
a practice which had prevailed in Europe, of declaring a port, or even
a long line of coast, in a state of blockade, and of capturing vessels'bound thither, although the belligerent should not have an adequate'force before such port, or along such line of coast, to maintain a
blockade. It was then agreed by both parties, that the meaning of
the article should be understood to require a sufficient force to keep
off neutral merchant vessels, and by no means to authorize the forcing' of the blockade by vessels of war.
" His Excellency Don Sebastian Camacho said that this article
offered another difficulty.  A blockading squadron might be driven off
by stress of weather; and it would be unjust in such a case that a
neutral should be allowed to avail itself of such temporary discontinuance of the blockade.
" Mr. Poinsett replied, that where the blockade was by notification,
and the neutral vessel had sailed from the port knowing of the existence of such blockade, the temporary discontinuance of the blockade
from  accidental causes, if it did not amount to an interruption or
breaking up of the blockade, would not protect the neutral from cap-'ture and condemnation on leaving the port, or on the place falling'into the hands of the belligerent; and that the cases wherein such' protection should be extended to a neutral are recited in the 21st
article, viz:
C"ART. 21. And whereas it frequently happens that vessels sail for a'port or place belonging to an enemy, without knowing that the same
is besieged, blockaded, or invested, it is agreed that every vessel so'situated may be turned away from such port or place, but shall not'be detained; nor shall any part of her cargo, if not contraband, be' confiscated, unless, after warning of such blockade or investment from' the commanding officer of the blockading force, she should again attempt'to enter the aforesaid port; but she shall be permitted to go to any
other port or place she may think proper. Nor shall any vessel of' either of the contracting parties, that may have entered into such port' before the same was actually besieged, blockaded, or invested, by the
other, be restrained from quitting such place with her cargo; nor, if'found therein after the surrender, shall such vessel or her cargo be'liable to confiscation, but she shall be restored to the owner thereof.
"It was agreed that this explanation should be considered as the' correct meaning of the ends of the article."
It thus appears that Mexico herself agreed to and confirmed the pre



21
eise doctrine contended for in this case; and she could not complain if
there be exacted from hbr the measure of her own principles.
This appears to have been a flagrant case of outrage, which entitled
the claimant to a full indemnity for all actual and consequential loss he
may have sustained.
The statement of loss will be found on the next following page, being
the same that was filed in the Department of State on the 21st March,
1845, per original No. 10, deeming it most proper that the claim heretofore presented to the Government should now be submitted to the
Board.
All which is respectfully submitted to the honorable Board.
JAMES H. CAUSTEN.
WASHINGTON, February 3, 1851.
BOARD OF COMMISSIONERS CLAIMS AGAINST MEXICO,
February 14, 1851.
SCHOONER SCOTT-JAMES W. ZACHARIE, CLAIMANT.
This claim is similar, in its essential features, to that growing out
of the capture of the schooner Susan, which has already been decided
by this Board not to be valid, and must be disposed of upon the principles which governed the decision of that case.
Upon the application of the counsel for the claimant, the Board has
Very carefully re-examined the grounds upon which that decision took
place, and finds no occasion to reverse the judgment to which it was then
conducted.
The injury for which indemnity is sought in the present case was
occasioned by the firing of the Mexican batteries, in the harbor of
Vera Cruz, upon the schooner, then lying at anchor near the Castle of
San Juan de Ulloa.
This occurrence took place in January, 1825, when the Castle was
in the possession of some of the military forces of Spain, with which
nation Mexico was then waging her war of independence.
Spain had been, before that time, driven from all her possessions in
Mexico, except this strong fortress, of which a small body of her troops
had retained possession for a period of more than three years, against
the most strenuous efforts of Mexico to expel them.
During a portion of that time, very active hostilities were kept up
between the Castle and the Mexican batteries and forces on shore, and
during other portions there was, to a considerable extent, a cessation
of active operations, and some degree of intercourse appears to have
been carried on between the Castle and the city.
Peace, however, was by no means concluded between the two countries, and Spain had not relinquished her purpose of attempting the
reconquest of Mexico.
During the same year, she made an unsuccessful effort to relieve
the Castle, and to invade the Mexican territory. It was not until late
in the autumn of that year that the Spanish troops in the fortress,




22
having been reduced to the last extremity, were compelled to surrenderd
Niles' Register of December 315 1825, says:
" Gen. Coppinger, late of Florida, commanded at San Juan de Ulloa
at the time of its surrender, and certainly held out as long as he could,
Cats and rats had been eaten, to prevent starvation; and so reduced
was the means of subsistence, that sentinels died' at their posts while
under arms.  More than four-fifths of the garrison perished by the
scurvy,'
This extract shows with what degree of vigilance and ability Mexico
had carried on hostilities against the Castle. Of the means which she
employed to effect its reduction, some account is given by Mr. Ward, in
his book on Mexico, vol. 2, page 69. On the 11th March, 1825, after
an absence of about one year, Mr. Ward returned to Mexico, and says:
"' From the moment that we approached the shores of Vera Cruz, an
- astonishing difference became visible in the state and appearance of' everything around us. The Castle was indeed still held by a Spanish'garrison, and the harbor closed in consequence to foreign vessels, but' the firing had long ceased; the siege being converted into a blockade,'in which a number of JMexican schooners and gun-boats were em-' ployed, while the Castle was occasionally supplied with fresh provisions' by the Spanish flotilla from Havana, The island of Sacrificios, where'we again anchored, and which I had left a year before a barren and' desolate spot, had been converted into a regular fortifcation, under' which the Mexican gun-boats sought protection on the approach of' the Spanish fleet. Mocambo, too, had assumed a formidable appearance," &c.
These were the means which Mexico was then employing, and had
been employing, to compel the surrender of the garrison.
Of her purposes she had, as well by these means as by her public
declarations, given notice to the world.
A decree was issued on the 8th October, 1823, declaring the Castle
of San Juan de Ulloa to be in a state of blockade; and by another decree of 20th December, 1824, it was announced that the strict blockade
of the Castle was continued, and all the provisions of the previous decree were declared to be in full force. The works upon Sacrificios and
Mocambo, both in the immediate vicinity of the Castle, and designed to
aid in its reduction, were erected in 1824; and every indication of a
more active effort on the part of Mexico to compel the garrison to surrender appears to have been given.
In such a state of things, the schooner Scott was cleared from New
Orleans for Vera Cruz, and sailed on the 20th day of December, 1824.
The claimant insists that she undertook a lawful voyage, and was
honestly bound for the Mexican port of Vera Cruz, and not to the Castle of San Juan de Ulloa; and he avers that she was fired upon and
sunk by the Mexican batteries, from an " idle suspicion'" that she intended to trade with the Castle.
This is a question of fact necessary to be, in the first place, clearly
settled.
The. Castle of San Juan, it is understood, entirely commands the
harbor of Vera Cruz; and foreign vessels could not therefore with safety
enter that port.  Indeed, it is well known that, owing to the possession




23
of the fortress by the Spaniards, and the hostilities between it and the
eity, Vera Cruz became, in a great degree, deserted, and all the commnercial business was transferred to Alvarado.  Ward's JIexicoj )2d
vol., pp. 6 and 7.
But in the opinion of the Board there is very decided proof, not only
that it was the intention of the schooner to trade with the Castle, but
that the fact of trading had actually commenced, at the time the firing
was opened upon her by the Mexican batteries.
The captain of the vessel, upon his return to New Orleans on the
3d day of March, 1825, noted a protest, in which he stated that "he'had experienced loss and damage on his outward passage by an attack'on said vessel from the forts of Vera Cruz, soon after she anchored'near the Castle, the particulars of which he would make known at'more leisure." And on the 8th of the same month he appeared with
his mate and two of his crew, and extended the protest, of which the
following is an extract:
" Nothing material occurred on the outward passage aforesaid, until' the 4th of January last, when the weather being cloudy, &c., at 3.30' P. M. saw the Castle of San Juan de Ulloa; at 4.30 P; M., got a'pilot from that fortress; at 5.20 P. M., came to anchor, &c. Got' the boat out, and the captain went on shore. At 6.40 the boat re-'turned, and brought off two launches from the Castle for cargo. La-' dened these launches, and sent them ashore, when the fort at Vera
Cruz fired one shot at the said schooner, which passed without doing
much damage."
It is thus established beyond all controversy that the vessel was
actually engaged in trade with the Castle at the time she was fired
upon by the Mexican batteries. Two launches had been loaded from
her, and sent to it, before the firing commenced. Nor is there any
reason to doubt that the attack, resulting in great injury to vessel and
cargo, was induced by this act of trading.
It is urged that the cargo, as exhibited by the manifest, was not
suited to the wants of the garrison; and it is hence inferred that the
voyage was not in fact undertaken to that fortress.
The proof is too clear to admit of any doubt upon the subject, even
if the manifests were entitled to the most implicit confidence.
Besides, it is well known that many cargoes were landed at the
Castle, intended to be smuggled into the city in violation of the revenue
laws of Mexico. This was especially the case prior to the decree of
8th October before referred to.
Mr. Taylor, the Consul of the United States at Vera Cruz, in a letter to the Department of State under date of. April 6, 1823, says:
"The fort, too, is turned into a place of deposite or trading house,' where cargoes are landed, deposited, or sold, and from thence smug-' gled into Vera Cruz."
It being established to the entire satisfaction of the Board that the
vessel and cargo, at the time of the injuries complained of, were actually engaged in carrying on trade with the Castle of San Juan de Ulloa,
then held by the Spanish arms, the question next to be considered is,
whether this was a violation of the belligerent rights of Mexico.
It has been urged very strenuously, on behalf of the claimant, that it
was not such violation; that the blockade of the Castle was a mere




24
paper blockade, not binding upon neutrals; that Mexico, had not sufficient power to enforce it, or to cause it to be respected; that the
schooner had never been warned off, without which, it is contended, she
was not liable to interruption.
A blockade is understood to be, in strictness of language, applicable
only to ports, harbors, or coasts, accessible by sea for commercial purposes. Its object is, to harass the enemy by obstructing or annihilating
his commerce, and thus to induce him to conclude a treaty of peace,
It does not contemplate a surrender of the port or place blockaded, and
is not to be regarded as a mere military operation.
6 There is an important distinction," says Duer on Insurance, vol. 1,
p. 657, " between a maritime blockade and a military siege. The sole'object of the blockade is, to distress the enemy by the suspension of' his commerce. It does not generally look to the surrender or reduction of the blockaded port, nor does it imply the commission of any' hostilities which the inhabitants are necessarily required to repel,
On the other hand, the object of the military siege is to reduce the' place, whether by capitulation or otherwise, into the possession of the
besieging power."
There can be little doubt that the purpose of Mexico, in its operations against the Castle, whether by sea or land, was to effect its reduction. It was a military fortress, and not a commercial port. The
suspension of its commerce or trade, if it had any, was in no way calculated to injure Spain, or to induce her to enter into a treaty of peace,
The object of Mexico was to wrest from her enemy a strong and commanding military post, the possession of which enabled her to prolong
the contest, and afforded facilities for renewed attempts at invasion and
subjugation.
Mexico had the unquestionable right to effect this important object
in any mode she deemed suitable, conforming only to the law of nations
and the usages of modern warfare.
She had the right to exclude all intercourse or, communication whatever with the Castle.
The mode adopted appears to have been taken upon deliberation;
and that it was entirely successful, has been already shown by the extracts from Niles' Register before given,
The following extract from "Poinsett's Notes on Mexico," p. 23,
shows the purpose and the mode of accomplishing it which Mexico had
in view, if further proof upon that subject be necessary.
Mr. Poinsett, on his way to the city of Mexico,;was in Vera Cruz in
October, 1822; and giving an account of an interview he had with
General Santa Anna, then Governor of the city, says:
"The Governor took me aside to talk of his plans for taking the
Castle. He proposes to blockade it by water, to construct a battery
c on each extremity of the harbor to prevent the entrance of shipping,
and to have-I don't know how many-mortars arranged behind the' ci,!to shower shells into the Castle."
Tles, plans appear to have been carried into execution. The decree
of 8th October, 1828, was promulgated, and the Castle was eventually
compelled to surrender.




25
In the opinion of the Board, the principles of law applicable to merely
commercial blockades do not apply to a state of things like this.
The entire operation against the fortress must be regarded as a military one, having in view and adapted to effect the reduction of a strong
military post.
It is said that there is no proof in the case showing that Mexico had
the power to enforce the blockade, It might be sufficient to say that
there is no proof to the contrary, But the argument seems to assume
that the Board are confined to the proofs which are presented by the
claimant himself.
It must be recollected that the proceedings before the Commission
are altogether ex parte, No adversary party is present, or has opportunity to be heard.
If the Board were to be confined to the claimant's own proof, it would
be quite easy to sustain any claim whatever.
Indeed, it is urged in the case of the Susan, that when a capture is
proved, a sufficient claim is made out, unless it be shown by Mexico
that there is justifiable ground for it; and not only so, but that Mexico must go still further, and show a regular condemnation by a court
of competent jurisdiction; and the rules of evidence applicable to trials
at common law between individuals are cited to establish these positions.
The Board does not yield to this argument. Each claimant must
establish every fact essential to the support of his claim. If the ground
of reclamation be that a capture or a condemnation was unwarrantable,
that must be established.
There can be no such distinction here as exists in trials between individuals of a prima facie case) sufficient to put the adversary on his
defence, for the reason that there is no adversary. Neither Mexicoi
nor the United States, who has assumed the obligations of Mexico, has
the opportunity of repelling the proofs submitted by claimants, except
so far as public documents furnished from the archives of the Government may be regarded as affording such testimony.
The Board does not, therefore, consider itself as limited to the papers
which the claimants deem it for their interest to present to its consideration.
Public events, facts or occurrences of general notoriety, published
accounts, and documentary records, are all suitable and proper to be
weighed as evidence in their bearing upon particular cases.
Judging from the evidence furnished by these and similar sources,
the Board is far from coming to the conclusion that Mexico was so deficient of means to enforce her decree of blockade, that it was not obligatory upon neutrals.
The harbor and the access to the Castle was entirely commanded by
the land batteries, while the gun-boats and schooners-of-war before
spoken of were sufficient to capture all commercial vessels hovering in
the vicinity.
These efforts and preparations on the part of Mexico must have been
notorious to all persons trading in that quarter; and whoever undertookf
a voyage to the Castle, must be held to have entered upon it with fall
knowledge of all the hazards to which it was extposed.




26
Indeed, there is evidence before the Board, filed in another case by
the present claimant, tending to show that the existence of the blocked
ade was so well known in New Orleans, as to be guarded against by
insurers in policies upon vessels bound to Vera Cruz.
An opinion given by the Supreme Court of Louisiana, in May, 1837T
in a suit upon a policy of insurance on the schooner Constitution and
her cargo) is among the papers filed by the present claimant in that
case. The court say' "This action is brought on two policies of insur-'ance, one on the schooner Constitution, and the other on her cargo,' from the port of New Orleans to Vera Cruz. Both vessel and goods
are warranted to be American, and that the former shall not force
the blockade." 
The Constitution sailed upon the voyage in June, 1824, and was soon
after captured, upon the allegation that she was bound for the Castle.
This capture, and the grounds upon which it was madej must have
been known at New Orleans.
The blockade spoken of in the policy could be no other than the
blockade, so called, of the Castle; and when it was known that vessels
were actually seized and captured on pretence that they were bound for
the Castle, there is little ground for the argument that it was incumbent on Mexico to warn off vessels thus actually employed, before she
could lawfully interrupt them.
In the argument addressed to the Board for a re-examination of the
case of the Susan, it is said that the Board had fallen into error in supposing that it had been admitted that the vessel had ever been condemned; and if so, that it was by a prize court of competent jurisdiction.
The memorial by itself does not, it is true, make that distinct admission; but the letter of Messrs. Taylor, Sicard, & Co., of 9th January, 1825, to the claimant, says, speaking of the Susan: "Vessel and
cargo condemned and sold-a very summary process. We are igno-' rant of all other facts, save that of her capture and condemnation."
When, therefore, the memorialist asserts that "it is understood"
vessel and cargo were condemned, and files a letter from his correspondents containing the statement above quoted, the Board did not suppose
it would be going too far to consider that fact as admitted.
But it is further urged, that if condemned, it was not done by a court
of competent jurisdiction, and that the proceedings were not regular.
And it is urged that Mexico, at that time, had no established courts
competent to adjudge upon questions of prize.
The Board does not find any sufficient proof of these allegations.
The letter of Messrs. Taylor & Co., before referred to, says  " Our' W. T. has just been notified of the condemnation of the McDonough's' cargo, by the marine tribunal of the place, from which decision he
appeals to the Supreme Court at Mexico."
There is no intimation that this was not a regular proceeding, and a
court of competent jurisdiction.
It appears also, in the case of the Constitution, that proceedings were
commenced and prosecuted before the same or a similar tribunal, from
whose.decision an appeal was also taken; and that these defences were
set up and conducted by Mr. Taylor, the Consul of the United States
at Alvarado.




27
The hotlse with which Mr. Taylor was connected were the corresn.
pondents of the claimant, and communicated to him intelligence of the
capture of the Susan.
Is it reasonable to suppose that Mr. Zacharie did not reply to that
letter? That he did not apply for and obtain information of all the circumstances connected with the occurrences? That if there had been no
regular proceedings, no condemnation, no proper court, he would not
have been fully informed of it?
Did all correspondence between the claimant and his commercial
friends, in reference to this matter, cease with that first communication?
It is wholly impossible to admit any such inference,
Since the organization of this Board, it is true, the claimant has endeavored to obtain from Mexico the records of the proceedings in the
case% and they have not been furnished.
But is the Board thence to infer that there was no Court and no proceedings?  These occurrences took place twenty-six years ago; and
since that time, Mexico has undergone many revolutions, and suffered
much civil commotion. Is it unreasonable to suppose that her omission
to furnish documents called for may be owing to a much more excusable cause than has been attributed to her?  That her archives and
records may have been rifled and destroyed, in some of the many scenes
of violence and anarchy through which she has passed?
If the injuries now complained of had in fact been sustained in the
manner now stated, and without any justifiable cause on the part of
Mexicoj it is impossible to account for the long neglect of the claimant
to seek the interposition of his own Government, or to take any steps
for obtaining redress.
These claims were not presented to the Joint Commission under the
Convention of 1839, not does it appear that they were ever in any
way brought to the notice of the Government of Mexico, Mekico,
therefore, has never had the opportunity of answering the allegations, or
repelling the proofs upon which they rest; nor were they brought to the
notice of the Government of the United States until 1845.
The motive for- presenting them at that time was probably that they
might be in a condition to be presented to a new Commission, if one
should be provided for, with similar provisions to that of 1839.
The claimant, it is true, addressed a letter to Mr. Livingston, then
a member of Congress, in January, 1825, upon the subject, but it does
not appear that it was ever communicated to the Government, or made
the ground of reclamation against Mexico.
The Consul of the United States, Mr. Taylor, also wrote the letter
before referred to, stating the fact that the Scott had been fired upon
by the Mexican batteries; but he only alludes to it as being the occasion of the renewal of hostilities between the city and the Castle, and
not as an aggression upon the right of neutrals, or an act unwarranted by the circumstances of the case.
Is it reasonable to suppose that, if the wrongs complained of had
been inflicted in the wanton manner stated, the claimant would have
been so long silent?  That the Consul, of whose zeal in behalf of
American interests there the Board has many proofs, would not have
exerted himself with his usual energy?




Is it not rather more reasonable to conclude that, through his correspondents there, who had every motive to defend his rights, he was fully
informed of all that had taken place, and was assured that there was
no ground upon which a reclamation through his own Government could
be sustained?
The claimant assigns reasons why these claims were not presented to
the Joint Commision; but, in the opinion of the Board, they are quite
insufficient to impair the very strong presumptions growing out of his
total omission to take any measures for obtaining redress, at the time
-of the occurrences complained of4 and for so long a period afterwards.
Exception is also taken, in the case of the Susan, to the conclusion
which the Board came to, that she was taken " near the Castle," and
the assertion is reiterated, that she was captured at sea.
It appears by the protest of the master, that the vessel was first sent
into the "port of Sacrificios," which was nothing more than a place of
shelter for the Mexican gun-boats, under the batteries there erected,
If taken at sea) it is by no means probable she would have been
sent there, but directly to Alvarado, where she was finally taken,
The Consul, Mr. Taylor, states, in the letter referred to in the former opinion of the Board, that she was taken " off the Castle,)" a phrase
which implies that she was in its immediate vicinity&
Without further extending this opinion, or enlarging upon other topics
presented in the arguments of counsel, the Board is constrained to adhere to the decision already made in the case of the Susan, and to decide, that the claim set forth in the memorial of J. W. Zacharie, for
injuries to the schooner Scott and cargo, is not valid, and the same accordingly is not allowed.
GEO. EVANS,
CALEB B. SMITH,   Commissioners.
ROBERT T. PAINE,
WASHINGTON, January 28, 1851.
GENTLEMEN: I have filed for trial, claims for the schooner Rebecca and cargo; the schooner Constitution and cargo; and now file herewith the claim for the schooner Susan and cargo-in all of which the
question of blockade is in some degree involved; and other cases of like
character will also be submitted for your decision.
But as only one of them, the Susan, sailed directly for the blockaded
place, and the argument on the subject of blockade is in that case directly and elaborately set forth, therefore I respectfully suggest that
the convenience of the Board would be greatly facilitated by making
that one (the Susan) a pioneer case to the others5 in their examinations.
I am, with great respect, your obedient servant,
JAMES H. CAUSTEN.
To the Hon. the BOARD ON CLAIMS AGAINST MEXICO.




SCHOONER SUSAN:
JAS. NEWMAN, MASTER; JAS. W. ZACHARIE, CLAIMANT.
STATEMENT OF THE CASE.
The schooner Susan sailed from Baltimore on the 10th of November,
1824, cleared for the Gulf of Mexico, having on board a lawful cargo
of wines and provisions.
While on the voyage out, she encountered severe weather, which
forced her to put into the port of Havana for shelter and repair; and
after a short delay there, without reducing or augmenting her cargo,
she resumed the voyage; and in the prosecution thereof-to wit, on the
20th of December, 1824 —she was captured at sea (without any warning or notice of any blockade) by the Mexican national schooner of war
" Anahuac," and sent by the captors as prize into Sacrificios; and, on
reaching that port, the captain, supercargo, and crew, (with the exception of one seaman,) were removed from the Susan, and confined on
board a Mexican gun-boat.
On the 3d of January, 1825, the captors carried the Susan to Alvarado, where she was forthwith, on the same day, condemned, (pro forma, as supposed,) and sold by " a very summary process," founded on
and " charged with the intention of being bound to the Castle;" as is
fully set out in an original letter from Taylor, Sicard, & Co., of January
9, 1825, now filed with the proof in the case, as No. 10. After this
condemnation and sale, the captain, supercargo, and crew, having extricated themselves from the gun-boat where they had been confined,
sailed thence in a boat in pursuit of the Susan to Alvarado, where they
arrived on the 8th of January, and found their just expectations of
having the vessel and cargo restored to them wholly frustrated by said
summary condemnation and sale, and that no effort they could make
would avail them towards obtaining possession of the property; and
it was then and therefbre abandoned under protest.
Long continued, very extraordinary and unwearied efforts have been
made, not only since the organization of the present honorable Board,
but- for several years prior thereto, to obtain from the Mexican Government and from the United States consul in Mexican ports evidence of
whatever proceedings were had in the case, if indeed any record thereof
was ever made, or the papers preserved that were found on board the
vessel; but without the least effect. And such failure was anticipated
from the beginning, inasmuch as it is seen that, by document No. 16,
filed among the proof, Mexico had not at that time created any tribunal competent to decide in a prize cause, nor any depositary for the
safe-keeping of papers found on board captured vessels, or proceedings
relating to them; nor even enacted any law authorizing such capture.




30
Under these circumstances, neither capture, condemnation, or sale,
could be legally made. And without a condemnation made by a competent court, there can be no change of proprietary interest in the property of either vessel or cargo.  [See cases referred to in the claim for
schooner Constitution.]
This vessel cleared at Baltimore for the Gulf of Mexico, and, it is
not denied, with the intention of trading with the Castle of San Juan
de Ulloa, if, when arriving in the Gulf, it was ascertained that it could
be legally done, and that a better market could be there found than in
any of the Mexican ports.
By injury and stress of weather she was obliged to touch at the Havana; but while she remained there, which was but a few days, she
neither discharged any part of her cargo, or received other articles on
board. The good faith of her visit to the Havana was not questioned,
nor made the ground of any charge or proceedings against her.
While afterwards pursuing her voyage, she was captured in the Gulf
and at sea by the sloop of war " Anahuac," a public armed Mexican
vessel; taken first to the island of Sacrificios, and then to Alvarado,
and there, as is supposed, condemned for violating the decree of the
Supreme Government of the 8th October, 1823, which had been held
as interdicting all trade with the Castle of Ulloa.
Every effbrt has been made to get the proceedings of those who condemned or sold the property, but nothing of the kind can be found. It
is highly probable that no record exists, and that there was no organized court of competent jurisdiction to pronounce sentence of any kind
in such} a case. And even if there had been a competent court there,
it would have been wholly useless to the claimant; since without notice
to defend himself, or any opportunity so to do, and his property already
sold and beyond recovery, it would have been no court to him, and a
sentence by it, under such circumstances, would have no title to respect.
The documents show that the proceedings against the Susan and cargo
(of whatever character they may have been, or by whomsoever conducted) took place in January, 1825. General Victoria, who was installed as President on the first of that month, declares that there was
not then, and probably there had not been for- some time previously,
any judicial authority in the Government.  He says:
" The federal judiciary not existing, and the Government being prec eluded from the intervention which it formerly had in that of the an-' cient provinces, its action, in this respect, has been almost null, and'will be so until the Supreme Court be instituted by a law designating'the number and local relations of the district and circuit judges, and' prescribing rules for territorial tribunals and the federal district."
It is believed that the claim for the schooner Susan and her cargo is
sustained upon this ground: that they were not regularly condemned
by a court of competent jurisdiction.
The unsuccessful efforts to find any record of condemnation warrants
the assumption of the fact that there is not, and never was, any legal
decree against the property. Had, however, a decree in due form of
law by a competent tribunal been produced, there are other sufficient
grounds for reclamation in this case, and the undersigned will proceed
to state them to the Board.




31
The condemnation (assuming, as it will be assumed, for the sake of
the argument on other points, that there was one) must have been made
under or in pursuance of the decree of the 8th October, 1823, (document No. 11.) That decree will therefore be brought under particular
consideration.
As a law of Mexico, it must be regarded only as a municipal law,
and can only operate within its jurisdiction.  Mexico cannot make laws
to abridge the rights of neutral commerce. This is so obvious a principle, that the undersigned will perhaps need an apology for referring to
a single authority to sustain it, In the case of " the Appollon," (9
Wheaton, 370) it is decided —
" That the municipal laws of a nation do not extend their operation' beyond its own territory, except as regards its own citizens."
This decree of Mexico could not be used in any way to the detriment
of the owner of the Susan and cargo, who is an American citizen, unless they were at the time of seizure by the Mexican sloop of war within
the territorial jurisdiction of the Republic of Mexico. It is very certain, from the whole tenor of the proofs in this ease, that the vessel was
not in any of the ports or waters of that Republic. She was out at sea,
The captain, mate, and supercargo, depose, in their protest, that they
were on their voyage.
Undoubtedly the captors and the Mexican tribunal (if there was one)
condemned her upon the same ground that they condemned the schooner
Constitution and her cargo, (which is also before the Board,) and held
the Susan and her cargo liable to condemnation for the suspected intention of trading with the Castle, which was prohibited by the decree of
October 8, 1823.
It appears in several cases that, in the opinion of the Mexican na.val
officers and tribunals, the effect of that decree was, to render liable to
condemnation a vessel intending to trade with the Castle; that if there
was such an intention after the adoption of that decree to carry on such
trade, all property destined to that place, wherever found, was, in their
opinion, liable to condemnation. This was giving not only an extraterritorial operation to the decree, but it was setting up a principle
utterly destructive to neutral rights as recognised by the law of nations-a principle everywhere repudiated and condemned. If the sentence against the Susan was upon this principle, it cannot be sustained
for a moment; and it must have been on this principle, for no other was
assigned for the capture.
Another ground, however, for the condemnation may be conjectured,
and it will therefore be considered, though there is no proof to show
that there actually was any such ground.
If the fortress of San Juan de Ulloa was in a state of actual blockade, and an attempt was made by the Susan after due notice to run or
violate the blockade, the vessel and cargo might have thereby incurred
the penalty of forfeiture; but the intention to trade with blockaded
places can work no such result.
It is true the Castle, by the terms of the decree of the Supreme Government, was declared to be in a state of blockade; but it is well known
that a bare decree, or ten thousand decrees, can make no blockade.
Nothing but an actual competent investing force can make a blockade
which neutrals are required to respect.




' By the law of nations, the denomination of a blockaded port is given'only to that where there is, by the disposition of the power which at-'tacks, or invests it, with ships stationary or sufficiently near to occa-'sion an evident danger in entering.  And even where there is such an
6 actual investment of the port, if any of the blockading ships should
cnot have enforced it, the blockade is so far relaxed. If the blockade' has not been duly carried into effect by the ships stationed on the spot' for the purpose, it is impossible for a court of prize to enforce it." —
Wheaton on Captures, 193 —.ppendix, 3; 3 Rob. Rep., 147.
By this definition, founded on the best authority, it is established
that a stationary maritime force-ships stationed sufficiently near to
make access to the port or place dangerous-is indispensably necessary
to constitute a blockade. In relation to the Castle, it is not pretended
that any ship or maritime force was ever stationed near it, or that it
ever was in a legal sense invested. In some of the cases it is said that
the land batteries bore upon the Castle; and one vessel is said to have
been injured or sunk at or near the Castle, by the guns on shore. It
would be overruling all judicial authority, and doing violence to the wellestablished doctrines on the subject, to consider a land battery an actual
investing force in any case.
In the case of " The Betsy, Murphy, master," (1 Rob., 78, Phila.
edition,) Sir William Scott says:
" On a question of blockade, three things must be proved: 1st. The
existence of an actual blockade. 2d. The knowledge of the party.'3d. Some act of violation, either by going in or coming out with a
cargo laden after the commencement of the blockade."
What was proved, or attempted to be proved, in the case of the Susan; by the captors, is not positively known, because the proceedings
(assuming there were proceedings) have not been found. It is quite
certain, how/ever, that two of the three requisite and indispensable facts
could not have been proved, because it is affirmatively established that
they did not exist, viz:
It is very clear, as has been before remarked, that there was no actual investment of the Castle by a maritime force; and it is, if possible, still more clear that there was no violation, either by the going to
the castle or coming from it, by the Susan. She was not in the vicinity
of the place which was pretended to be under blockade-she was out at
sea. The establishment of either of these points shows that the Susan
and her cargo could not have incurred the liability to condemnation;
and whatever may have been the proceedings against her, the claim in
this case is well made out; for the condemnation must have been in
utter violation of the law of nations.
But as the case of the schooner Constitution, and some others, depend upon the pretended blockade of the Castle of Ulloa, and the condemnations for intending —not actually attempting-to trade with it,
some further consideration of the facts and the law may be properly
submitted to the Board.
It appears from the historical account of the condition of things at
Vera Cruz and in that vicinity, and by the deposition of Juan J. Presas,
(No. 14,) that from 1821 to 1825, Spain held the Castle of Ulloa; that
for most of this period active hostilities between Mexico and Spain had




83
ceased, and a free intercourse between the Castle and the city of Vera
Cruz was kept up, with only an occasional interruption; and both the
history and testimony referred to concur in the important fact, that
the Castle obtained its necessary supplies from the city of Vera Cruz,
from time to time, but a short time prior to the period at which this
claim arose.
The introduction to the articles of the decree of October 8, 1823,
under which the condemnation of the Susan, Constitution, and other
American vessels, was pronounced, shows, that there was a quasi peace
during most of this period. The following is an extract from that introduction: (Document, No. 11.)
"' That so far, therefore, the Mexican nation and its Government,'putting into practice the principles of lenity and prudence which
characterize Americans, has permitted the existence of friendly rela-'tions with the subjects of Spain, the free trade of her goods and man-'ufactures, the exportation of national goods and money, and the free
entry of her merchant vessels into our ports. That notwithstanding: this generous conduct, and forgetting her true interests, the same Span-'ish nation has not taken one step to unfold the sincerity of her in-' tentions as to peace, but on the contrary, without losing sight of her
ancient ideas of dominion, retains her forces in a small point of the' continent of Mexico, where she boldly attempts to fasten upon the sons: of this soil the ignominious yoke of servitude which so gloriously they' have thrown off," &c. It then goes on to charge the Governor of the
Castle with having broken his word, " passed to the authorities of Vera
Cruz," not to fire upon the town without previous notice, and of having
opened a fire on it, which was returned from the batteries on land.
Upon this provocation, the decree of October 8,- 1823, was issued;
but the proofs show that this state of active hostilities did not last long,
and was again succeeded by a state of quasi peace. It had been so far
disregarded, that it became necessary in December, 1824, only five days
before the Susan was captured, to issue another decree at Mexico, to
revive and continue in force the decree of the preceding October. (See
document No. 12.) This supplemental decree reached Vera Cruz on
the very day on which the Susan was captured at sea. This fact proves
that, when the Susan left the United States, the blockade, if it had in
fact existed in any other shape than a paper blockade, had been relaxed.
And if relaxed, or not carried into effect by vessels stationed on the
spot for the purpose, "it is impossible for a court of prize to enforce
it." —Wheaton on Captures, 193.
If the second decree revived the blockade, then the question of notice
arises. If not properly notified, a vessel attempting to trade with an
actually blockaded port is not implicated in any penalties. If the rules
of law in regard to notice are considered, it will be found that a proper
notification was not given of either decree. And were it therefore possible to adopt the monstrous doctrine that a paper blockade may be enforced against neutrals-a doctrine which certainly can never have any
countenance from the Board —yet effect was not given to the Mexican
decree by a due notification.  The law on this point is thus stated, by
Wheaton and by Lord Stowell:
" As a proclamation or a general public notification is not of itself
3




34'sufficient to constitute a legal blockade, so neither can the existence' of such a blockade be imputed to the party, merely in consequence of
such a proclamation or notification.  Not only must an actual blockade exist, but a knowledge of it must be brought home to the party,'in order to show that it has been violated." —Wheaton on Captures,
193; 3 Rob. Rep., 147; 1 Rob., Rep.,- 93.
No proclamation, no public notification, is shown.  One of the witnesses who was at Vera Cruz at the time says, all the notice that he
ever knew of the decree of the 8th of October, 1823, was the placarding of it in that city. No due notification was shown —no turning off
neutral vessels which had no notice-no other use seems to have been
made of the decree, but that of attempting to justify plunder upon neutral commerce.
But even where there has been actual notice, but the party has
grounds to conjecture that the blockade has ceased, the vessel is not in
delicto for attempting to trade with the blockadedport. ~ (See the case
of the' " Juffrow Maria, Shroeder," 3 Robinson, 122.)
Neither one, therefore, of the three things indispensable to a legal condemnation, is shown in this case; and the capture and condemnation of
the Susan and her cargo was a manifest wrong.
In the first place, there was no actual blockade. Even if there had
been one, the facts show it must have been relaxed at the time the Susan
was on her voyage and captured.
In the second place, no knowledge of a blockade was brought home to
the party.
And in the third place, no act was done by the Susan to run or yiolate the blockade, even if it could be assumed that one in fact existed.
The general doctrine is, that a party ignorant of a blockade does not
violate it and incur any penalty by entering, or attempting to enter, a
blockaded port, unless first warned off.
" A vessel sailing ignorantly for a blockaded port is not liable to' condemnation under the law of nations." —5 Cranch, 335.
The current recent intelligence from Mexico, at the time the Susan
sailed from New Orleans, [Baltimore,] of the tranquil state of the country, Spanish Commissioners to treat of peace and commerce having
been shortly before announced as having arrived at Mexico, might well
justify our merchants in assuming their shipments to Mexican ports,
and even to the Castle, as perfectly safe; or that, if among the very
frequent changes and revolutions that theretofore occurred, such should
again and suddenly break out, some notice or warning off should necessarily be given to our vessels. At all events, they sent their shipments
there in ignorance of the existing state of things; and that ignorance it
is seen is sufficient to save their property from condemnation under the
law of nations, which is the only law that reaches this case, being a
capture at sea; and it will not be overlooked that the decree in question
did not, nor did any other decree or law of Mexico, authorize the capture of an American vessel at sea.
There are cases to be found, where vessels have been condemned for
sailing to a blockaded port, before they reached it and attempted to
enter; but such cases are dissimilar in all their circumstances to this.
There is, as Sir William  Scott says, in the case of the " Neptunus,"




35
(1 Robinson, 144,) two sorts of blockade. One by the simple fact only;
the other by a notification accompanied by the fact.
In this case, it appears very clearly, there was no actual blockade,
because there was no investment of the Castle by a stationary maritime
force. If, however, there had been such an investment, then it would
have been a simple blockade, and not a notification with the fact of
actual blockade. It is important to observe this distinction with reference
to the question of knowledge.
In the case of a simple blockade, there must be positive knowledge
of the fact of the actual investment, and an attempt to enter the blockaded port after that knowledge, in order to bring a neutral vessel and
cargo under the penalty of condemnation.
The other sort of blockade, mentioned by Sir William Scott, is the
actual investment of the port, or place, with notification of the fact.
What is meant by a notification, is not the mere promulgation of the
actually existing blockade. Such is not the notification which the law
requires, in order to attach penalties.
If Mexico had stationed ships about the Castle of Ulloa, and had
given formal notice to the Government of the United States that the
Castle was in a state of effective blockade, and that neutral commerce
with it was not permitted, the law could presume, after sufficient time
had elapsed, that our merchants had received information of the existence of the blockade from their Government; and in such a case, the
plea of ignorance would be unavailing.
Should they afterwards fit out vessels to trade with the Castle, (the
blockade being all the while rigorously continued,) these vessels, with their
cargoes, would in that case be in delicto while on the voyage, without an
actual attempt to enter the blockaded place; and, although taken at sea,
might be condemned for violating the blockade. This is properly called
a " hard doctrine."  So indeed it is; and the courts are always ready
to relax it on slight occasions.
If the blockading force is temporarily withdrawn, not from necessity by the violence of storms-if a part of it is withdrawn, leaving an
inadequate one to enforce the blockade-if any neutral vessel enters by
permission, or there is want of vigilance in enforcing the blockade-it
is, from either of these causes, held to be relaxed; and prize courts refuse to enforce it by sentence of condemnation.
Hence it is seen that many vessels captured on voyages to blockaded
ports have been released, and their voyage declared lawful, because
they had reason to conjecture that the blockade had ceased, or would be
at an end, before they could arrive at the destined place.
The blockade of the Castle, paper blockade as it was, was not with
notification; no notice of it was given by the Government of Mexico
to the Governments of neutral nations.
It was not even a simple blockade; because there was no investing
force, an indispensable requisite to a blockade.  If there had been a
blockading force, it would have been only a simple blockade. It was
not a blockade with notification, for no notice was given to the United
States, that the Castle was in a state of actual blockade.
It is proper to remark here, thatnotification to the Government of one
neutral nation does not affect or implicate other neutral nations; each
neutral must have notification,




36
Taxing the imagination to the utmost, no sufficient ground for a condemnation of the Susan and her cargo can be found. The decrees of
Mexico viewed as municipal laws could have no effect upon this vessel,
because she was not when captured within the jurisdiction of that country. Furthermore, as municipal laws they were merely prohibitory,
without any penalty, and evidently aimed against Spanish property,
productions, manufactures, and trade.
In any and every point of view in which they can be regarded, they
were ineffective as establishing a blockade of the Castle of Ulloa. The
decree of October 8, 1823, in express terms, placed the Castle solely
under the inadmissible and impracticable investment of the batteries of
Vera Cruz; and it need hardly be said, that these batteries were not
authorized to make captures at sea-nor did any Mexican law or decree
authorize such captures.
The claim of damages for the Susan and cargo, to the full amount of
the loss, is considered as fully established-a statement whereof is set
forth on the next following page.
All which is respectfully submitted.
JAMES H. CAUSTEN.
BOARD OF COMMISSIONERS CLAIMS AGAINST MEXICO,
February 3, 1851.
SCHOONER SUSAN-JAMES W. ZACHARIE, CLAIMANT.
The schooner Susan, an American registered vessel, owned by the
claimant, sailed from Baltimore for the Gulf of Mexico on the 10th of
November, 1824. On the 20th of December following she was captured off the Mexican coast, and near the Castle of San Juan de Ulloa,
by the Mexican national schooner Anahuac. The claimant alleges in
his memorial that the -schooner " was carried into Sacrificios, and thence'to Alvarado, where, as is understood, both the vessel and cargo were
condemned."
He avers a total loss of both vessel and cargo, and claims indemnity
from the Government of Mexico.
In order to determine whether the claim preferred is valid, it becomes
necessary to examine the cause of the capture and subsequent condemnation.
The claimant alleges that the schooner was captured " on the allegation of intention to trade with the Castle of San Juan de Ulloa, then'in possession of the Spaniards."
An original letter from Taylor, Sicard, & Co., dated Vera Cruz, 9th
January, 1825, addressed to the claimant, and filed by him as a part
of his evidence in this case, stated:
"'On the 3d instant the schooner Susan, Captain Newman, was'brought in here as a prize, charged with the intention of being bound
to the Castle."
The United States Consul at Vera Cruz, in a letter to the State Department dated January 5, 1825, said:' The day before yesterday an American schooner, the Susan, Cap



'tain Newman, was sent in here as a prize, having been captured off
the Castle, with provisions, by one of the Mexican vessels of war."
These statements constitute all the evidence before the Board which
explain the cause of the capture.  The subsequent condemnation and
sale of the vessel and cargo by the Mexican authorities is admitted by
the claimant, and is also stated in letters which he has filed as a portion
of his evidence.
No record of the proceedings and judgment of the prize court in Mexico has been presented to the Board; we are, therefore, left to infer the
grounds of condemnation from the general statements of the cause of
the capture above referred to.
The claimant's counsel urges, that " the claim for the schooner Susan' and her cargo is sustained upon the ground that they were not regu-' larly condemned by a court of competent jurisdiction."
The Board cannot presume this, in the absence of testimony to prove
it. It is a material fact, the burden of proving which lies upon the
claimant. It being admitted that the vessel and cargo were condemned
by a prize court in Mexico, the Board must presume that it was a court
of competent jurisdiction, and that its proceedings were regular. If
the record of the court was before us, it might disprove both of these
presumptions, and sustain the ground assumed by the claimant.
The fact alleged by the claimant, that he has been unable to procure
a copy of the record, does not change the presumption.  Whether the
absence of the testimony is caused by the unwillingness of the Mexican
authorities to furnish it, or by the laches of the claimant, the duty of
the Board to regard the jurisdiction of the court as sufficient, and its
proceedings regular, until the contrary is shown, remains unchanged.
It remains, then, to inquire whether the cause of the capture, and the
circumstances under which it was made, as they are to be deduced from
all the evidence in the case) would, under the law of nations, have justified a condemnation before a court of competent jurisdiction, and whose
proceedings were regular.
At the time the capture was made, Mexico and Spain were at war.
The Spanish forces, after having been expelled from every other portion
of the Mexican territory, at that time held possession of the Castle of
San Juan de Ulloa. The United States) as a neutral nation, could
claim for its citizens only the rights which, by the laws of nations, neutrals hold in relation to belligerents.  The Spanish forces in the Castle
could only obtain their supplies from the land by the permission of the
Mexicans, who had possession of the city of Vera Cruz, and of all the
country around.
It was an important object to Mexico to cut off the supplies of her
enemies in the Castle, and thus compel them to surrender. She had an
undoubted right, by the law of nations, to besiege the Castle as well by
sea as by land, and to treat as an enemy whoever might attempt to enter it, or carry anything to the besieged. This doctrine is laid down
by Vattel, B. 3, ~ 117, as follows:
"All commerce is entirely prohibited with a besieged town. If I
lay siege to a town, or only form the blockade, I have a right to hinder' any one from entering, and to treat as an enemy whoever attempts to' enter the place or carry anything to the besieged, without my leave.s




88
Mexico asserted this right, and by a decree of 8th October, 1823,
"the fortress of San Juan de Ulloa is (was) declared to be in a state of
blockade," and all communication with the garrison and vicinity was
declared to be absolutely cut off.
On the 20th of December, 1824, another decree was published, by
which the strict blockade of the Castle was continued, and the provisions of the previous decree were declared to be in full force,
More than a year had elapsed from the publication of the first decree?
when the Susan was captured " off the Castle."  The evidence filed by
the claimant proves, beyond doubt, that she sailed from the United
States for the purpose of disposing of her cargo at the Castle. Her
manifest specified her destination to be the "c Gulf of Mexico," and not
any particular port. The protest of the master, made before the United
States Consul immediately after the capture, states that the vessel was
" bound on a voyage from Baltimore to the Castle of San Juan de Ulloa." The same fact was again asserted by the master, in an affidavit
which he made at New Orleans in March, 1825.
The claimant's counsel insists that the capture of the Susan was illegal, because, as he alleges, she was captured " out at sea," and not
in the vicinity of the Castle.  This assumption is not sustained by the
testimony. Not one of the papers filed in the case contains such an
allegation. The protest of the master does not specify the distance of
the vessel from the Castle when she was captured.  If the vessel had
been captured " out at sea," it is hardly to be presumed that the statement of so important a fact would have been omitted in the master's
protest. But besides this strong negative testimony, the assumption is
disproved by the letter of the Consul above referred to, in which he
says the Susan was " captured of the Castle, with provisions."
There can, then, be no reasonable doubt that the Susan sailed from
Baltimore with a cargo of provisions for the Castle of San Juan de Ulloa,
which was then in a state of blockade, and that she was captured by a
Mexican vessel of war while off the Castle, and attempting to violate
the! blockade.
It is urged that, notwithstanding the decrees of blockade before referred to, there was no actual blockade of the Castle, because there
was not kept in the vicinity a sufficient maritime force to enforce it.
It is true the law of nations requires a blockading power to keep a
force sufficiently near the blockaded port, "to occasion an evident danger in entering."  The evidence in this case does not disclose the extent of the maritime force which Mexico kept in the vicinity of the
Castle.  The Board has no right to presume, in the absence of testimony, that a sufficient force to sustain the blockade was not kept there.
The claimant, who seeks to invalidate the decision of the prize court in
Mexico upon this ground, should prove it. This he has wholly failed
to do.
That the force which Mexico kept there was sufficient' to occasion
an evident danger" to the Susan in entering, is sufficiently proved by
the fact of her capture. It is also in evidence before the Board, that
about that time several captures of neutral vessels were made, on the
allegation that they were attempting to violate the blockade. So far as
the evidence upon this point goes, there is a decided preponderance in




favor of the position that Mexico kept as large a maritime force in the
vicinity of the Castle as was necessary, under the law of nations, to give
effect to the blockade.
Besides, it is in evidence before the Board, that the Mexican land batteries at Vera Cruz commanded the approach to the Castle, and that
one vessel was sunk by them while discharging her cargo at the Castle.
Although the investment of a besieged post or fortress by a land force
may not be technically a blockade, there can be no doubt of the principle that the besieging force has the same right, under the law of nations, to cut off supplies and to prohibit a trade with neutrals, which is
possessed by a blockading squadron. The object in both cases is the
same-to force a surrender of the enemy by depriving him of the facilities to prolong the contest which a trade with neutrals might afford him;
and the right to capture the property of neutrals trading with the enemy,
under such circumstances, is undoubted in either case.
It is also insisted that the capture of the Susan was illegal, because
she was not warned off.
The claimant has filed among his papers an affidavit made in New
Orleans, in March, 1825, by the master and supercargo of the Susan,
in which they state, " that on their passage from Baltimore to the
Y Castle of San Juan de Ulloa, said vessel was not boarded or ordered' off by any Mexican cruiser, previous to being captured by the Anab huac. I
It is not essential, to give validity to the capture of a neutral vessel
entering a blockaded port, that she should be warned off.  The fact of
her being warned off is but an evidence of notice of the blockade, and
the notice being proved alundi is equally effective. The facts developed by the evidence in this case are sufficient to justify the presumption that the fact of the blockade was well known both to the owner andl
the master. The blockade had then been proclaimed more than a year.
The proximity of New Orleans (where the owner resided) to Vera Cruz,
the frequent communication between the two places, and the fact that
the owner was extensively engaged in trade with that port, forbid the
conclusion that he was ignorant of the blockade. He does not aver a
want of notice in his memorial, nor is it shown by any of the testimony.
The affidavit of the master and supercargo, before referred to, does not
allege that they were ignorant of the blockade.
The English courts of admiralty have decided that sailing for a
blockaded port, knowing it to be blockaded, is a breach of the blockade
from the departure of the vessel, and that she may be legally captured
wherever found.
From a careful examination of all the evidence adduced by the claimant, the Board is satisfied that nothing is proved which would justify a
decision that the judgment of the prize court of Mexico was in violation
of the law of nations.
It is therefore decided that the claim preferred on account of the
capture and condemnation of the schooner Susan and cargo, is not a
valid claimn against the Republic of Mexico, and it is therefore not
allowed.
GEORGE EVANS,
CALEB B. SMITH,    Commissioners.
ROBERT T. PAINE,)




40
iEMARKS UPON THE COMMISSIONtRS' OPINION IN
THE CASE OF THE SCHOONER SUSAN.
HIaving been favored by the Board with an opportunity to examine
their opinion in the case of the Susan, I beg leave, in the most respectful manner, to suggest some points in regard to which I hope to satisfy
the Board there is some misapprehension on their part as to facts, and
the application of the law to them. I think the Board have gone too
far in assuming, as they do, that the claimant admits the Susan " was
condemned by a prize court in J/lexico."  The words, " by a prize
court in Ajfexico," are not in the memorial, or any of the papers in the
case, except the opinion of the Board,  They have regarded the statement of a rumor in the memorial as the averment of a fact; and have,
by mistake, added a clause to it, which alone renders the significance
they have given to it plausible.
There is certainly no such admission in the papers before the Boardi
The claimant states, frankly and truly, that the vessel and cargo were
first taken to Sacrificios, and thence to Alvarado, "' where," as is understood, " both the vessel and cargo were condemned."  He evidently
is not averring a fact within his own knowledge, but only speaking of
a rumor, a report, which came probably from the Mexicansj and was
put forth as a pretext for their wrong.
Subsequently to the presentation of the memorial on which the abovequoted expression is used, the claimant, as is well known to the Board,
has diligently sought for a copy of the proceedings in the proper place
for them, and no trace whatever of any proceedings has been found.*
In the argument filed by the undersigned in this case, he therefore
denies —as under the circumstances he has a right to deny-that there
was any such court. So far as he could establish a negative, which
cannot be legally required of him, he has done so.
On the most thorough search, no record of the proceedings can be
found.  And he moreover strengthens the inference that there was no
condemnation by a court, by the declaration of President Victoria, in
his inaugural address to the first Constitutional Congress of Mexico, on
the first of January., 1825, (only ten days after the vessel was captured,
and eight days before the vessel and cargo were sold), that there were
nofederal courts in Alexico, viz:
* The Board will well recollect that the trial of this case, and several others of
like character, have been deferred since May of last year, for want of the proceedings only, which were formally required from the Mexican Government by my requisition, which was presented to the Board, received its official sanction, sent by
it to the Department of State officially, and in due form urged upon the Mexican
Government by said Department and our Minister at Mexico. That requisition
has been again and again pressed upon the Department, and I have obtained further: and more pointed instructions to make it effectual; and I have also pressed
our Minister in Mexico, directly and most earnestly; but all these efforts have
been unavailing. And the case is now submitted to the Board after said fruitless
search, which, under the extraordinary circumstances of the case, entitle it to a
liberal construction. What has been done in the manner indicated is tantamount
to a thorough search; but this was not much relied on; the State Department was
farther invoked to instruct the Consuls to add their efforts also; and the claimant
also solicited the aid of the Consuls, and his corespondents on the spot, to-pursue
the search; but nothing ha yet been found.




41
" The federal judiciary not existing, and the Government being pre.' eluded from the intervention which it formerly had in that of the an-' cient provinces, its action in this respect has been almost null, and' will be so until the supreme court be instituted, by a law designating
6 the number and local relations of the district and circuit judges, and' prescribing rules for territorial tribunals and the federal district."
Before the proofs were collected, or rather that part of the proofs
which it was not his duty in the regular course of proceedings to present, the claimant states, in his memorial, not what the Board has mistakingly imputed to him, but only that it was understood the vessel and
cargo were both condemned; He is speaking of the account given of
the disposition they had made of his property) by his commercial agents,
and he uses their languages
After the strong negative proof to the contrary, such an expression
as he made in his memorial, or such a one as the Board impute to him,
ought not to be set up against him, as an admission that there was in
fact an actual condemnation, and then construct upon that the presumption that it was a court with competent jurisdiction, and its proceedings were regular. If the memorial had contained what the Board5
under a mistake, say it did contain, it would not, in my opinion, justify
the inference or presumption that the court had competent jurisdiction
and the proceedings were regular. But the great error of the Board,
on this point under consideration, is an error of fact. They say, " It'being admitted that the vessel and cargo were condemned by a prize
court in JMexico, the Board must presume that it was a court of competent jurisdiction," &c, If they look at the memorial which is said
to contain " this admission,"  they will not find one word in relation to
"a prize court "j in it.
Had the admission been what the Board understood it to be-if the
claimant, as a matter of fact, and not merely as a thing understood,
had stated that his vessel and cargo were condemned " by a prize court
in JlAexico A"-there would be less ground of objection to the inference
which they drew3 of a court of competent jurisdiction, and regularity
in the proceedings; but it is due to the Board to presume that they
Will not, from the mere statement of the claimant that the vessel and
eargoj as is understood, were both condemned, without saying one word
as to the mode of condemnation, where3 or by whom it was done —
repeat, that they will not presume from such a loose expression, evidently referring to hearsay1st. That there was a court;
2d. That it had competent jurisdiction; and
3d. That the proceedings were regular.
By inadvertence, undoubtedly, the Board have imputed to the claimant an admission he never made; and, by the inference drawn from it,
an important admission, destructive of his claim.
The correction of this error in fact must, as I conceive3 change the
result of the Board's decision; it must take away the whole ground of
defence to the claim, viz: that there was a regular condemnation of the
property by a court of competent jurisdiction, conducting its proceedings in a regular manner; for, without a condemnation by a competent
court in a regular way, Mexico could get no title to the property she
took from the claimant.




42
-The Board are respectfully requested to recollect that it was no part
of the claimant's duty to negative the fact that there was such a court,
and that it proceeded to a sentence of condemnation.  This is matter
to be shown affirmatively against the claimant, and cannot be required
from the party asserting the claim.
" Whoever sets up a title to property, under a decree of condemna-' tion, is bound to show that the court had jurisdiction of the cause,
and that the decree of the court has been rightly pronounced, upon
the application of parties competent to ask it."-La JXereyda, 8
Wheaton, 108.
The Board has laid down an exactly reversed position in relation to
the jurisdiction of the court; for they say the burden of proving the
court had not jurisdiction lies on the claimant in this case.
Mexico could only resist the claim in this case by showing a title to
the Susan and cargo, under a decree of condemnation by a, court of competent jurisdiction.  Had she been in fact a party before the Boards
she would have been obliged to show such a decree by such a court, in
order to resist the claim. The United States occupy her position, and
to a considerable extent are charged with her duties.
To require the claimant not only to prove his claim, but also to repel
bare presumptions, by proving negatives, is exacting of him impossibilities. If the Board, under the peculiar [circumstances] of the cases,
require the claimants to disprove negatively, in support of their claims,
what ought to be proved affirmatively in resistance to themn, they may
do great injustice-to fair claims by going too far in this direction; as
it is believed they have in this case.
Let it be supposed that this claim had been laid before the mixed
Board, under the convention of 1839: could the Mexican members of
it have been sustained in the position which this Board has taken'?  If
it had appeared there, as it does here, that the claimant had stated that
he had heard, or it was understood, the vessel and cargo were both condemned, would it not have been strange, indeed, for them to urge, and
still more strange in the Board to acquiesce in the position, that the
claimant had admitted a condemnation, and consequently the Board
must presume that it was pronounced by a court, and that the court
had competent jurisdiction; that from the bare fact that the claimant
had said that he had heard, or understood —not pretending the fact was
in his own knowledge-that the property was condemned, the actual
condemnation by a duly authorized court should be inferred from these
facts, were sufficiently established, and no decree, no record, no proceedings need be produced.  On the contrary, would not Mexico or her
commissioners have been required to show, ought they not to have
shown, in order to defeat the claim1st. That there was a decree of condemnation;
2d. That it was pronounced by a court of competent jurisdiction;
and
3d. That the proceedings were in due form of law?
They could not have been allowed the extravagant presumption that,
because the claimant had stated a rumored condemnation, there was a
court which condemned; that it had a competent jurisdiction, and had
conducted its proceedings in a regular manner.




43
And, according to the decision of the Supreme Court, in the case of
C La lJereyda," 8 Wheaton, 108, before cited, she must show a title
under a decree of a court of competent jurisdiction; and even more- it
requires that it should appear that the court acted in the matter on the
application of a proper party. So, it is conceived, the case would have
stood before the mixed Board. Mexico must have allowed the claim,
or shown a decree of condemnation for good cause by a court of competent jurisdiction.
Is the case altered in its principles? Are the rules of law there
applicable to it not only modified, but reversed, by a change in the mode
of constituting or composing the tribunal? Such cannot be the case.
If the claimant shows the fact that his property has been taken from
him, he has established a right to indemnity, unless it is shown on the
part of the captors that they had a right to take it; and that right
can no otherwise be shown than by a decree of condemnation, such as
has been described.
The claimant thinks, from the pains taken to find a record, after presenting the memorial, that he is warranted in saying that what he then
understood to be true was not true; that, in fact, the vessel and cargo
were never condemned; and that the hearsay report which he inentioned in his memorial should not be taken by the Board as an admission of the fact of a condemnation by any court, regular or irregular,
or by an association of depredators, inasmuch as no proof, after diligent
inquiry, can be found to establish it, and enough appears to make it
very questionable.
The letters referred to, in which a condemnation is spoken of, do not
weaken the position here mentioned. None of the writers pretend to
have any knowledge of any judicial proceedings, or to speak of anythings but vague reports, or the pretence set up by the Mexicans for
taking the claimant's property. All inferences fairly derivable from
them are rebutted by the fact that no proceedings in the case can be
found.
The Commissioners seem to impute the non-production of the record
to one of two causes: " the unwillingness of the Mexican authorities to
produce it," or " the laches of the claimant."  But are there facts or
circumstances to warrant the assumption of either?  The first is a
presumption unsupported by the proofs; for there is nothing to show
that Mexico would not willingly have produced the record, if one could
have been found. A regard to her own character would incline her to
do so. The second is rather in opposition to the facts; if the record
had been evidence in support of the claim, the claimant could not have
done more than he has done to procure it.
The Board, it is respectfully urged, has erred, not only in holding
what was said in the memorial to be admission that there was a condemnation by a court of competent authority, but they also err in reversing the rule of law, by holding that the burden of proving the court
had not competent jurisdiction is thrown upon the claimant.
The doctrine on this subject, as is clearly shown by the case referred
to in Wheaton's Reports, vol. 8, 108, is directly opposite to that laid
down by the Board.
In strict law, it ought- to be shown against the claimant that his




44
property was taken from him, not only by a decree of a court, but a
court of competent jurisdiction.
In making the efforts the claimant has to find and get the proceedings, (which he was not bound to do,) he has done enough to destroy
the presumption that there was either a court or a condemnation. This
has been done, not as a duty, but a work of supererogation.
The presumption of condemnation by a competent court, or by any
court, is strenuously resisted; but it is proposed to go a step further —
perhaps an unnecessary step —and examine the grounds of the supposed
decree in this case.
It is believed that the Board have been misled by a misapprehension
of the relations which existed between Mexico and Spain. In the case
of the schooner Scott, which has not yet probably received the particular attention of the Board, the actual condition of things between the
two countries at the time that vessel and the Susan were seized has
been touched on) but not sufficiently presented. There was not a state
of war, but of quasi peace, between the two countries) during nearly the
whole four years the Spanish forces held the Castle, after having been
expelled from the rest of Mexico. This expulsion was in 1821, During
that year, and up to the 8th of October) 1823, a state of actual peace
existed, though there was no treaty of amity.  The preface to the
decree of that date (October 8, 1823) shows conclusively a state of
peaces It expressly admits that Spanish vessels had free entrance into
Mexican ports, (and that many of them were then there,) particularly
into the principal port of Vera Cruz; they brought in Spanish products,
and took away Spanish and Mexican property, specie, &c. This was
not a state of war.
If they did not act towards each other as belligerents, they could
not require neutrals to regard them as belligerents, and concede to them
belligerent rights.
It is true the decree of October 8, 1823, was a warlike measure. It
temporarily interrupted the previously existing relations of peace-the
free intercourse and trade between them; but the interruption was of
short continuance, There is abundant testimony, in the cases touching
upon the pretended blockade of the Castle, to show that soon after the
issuing of that decree a peaceful and free intercourse was again established-the garrison was supplied from the shore, and intercourse by
neutrals was permitted. This was the state of things as generally
known, and of course known at Baltimore, when the Susan sailed from
that port. While she was on her voyage, some circumstances of irritation caused a revival of the order of October 8, 1823.  The extract
from the American Consul's letter to our Secretary of State, of the 5th
of January, 1825, (No. 13,) declares as follows: " Hostilities have
again commenced between San Juan de Ulloa and Vera Cruz," frc.,
This authorizes the inference that previous to that time, which was a
month after the Susan sailed from Baltimore, and fourteen days after
she was captured, there was not a state of hostilities. Under the appearance of peaceful relations, at most under the state of intermitted
hostilities, American merchants, being neutrals, fitted out their vessels
to trade with the Castle as well as with Vera Cruz; they had an unques-,ionable right to do so, and it was a gross fraud upon them-a violation




45
of their neutral rights-to set up the pretence that they intended to
pursue an illicit trade —a trade in contravention of belligerent rights;
and upon that pretext to involve their property in the penalties of condemnation.
The following extract from a deposition of Juan J. Presas, then a
highly respectable merchant of Vera Cruz, and afterwards a naturalized
citizen of the United States, shows that the relations between the Castle, while held by the Spaniards, and Vera Cruz, were not belligerent,
but peaceful:
" During the years 1821, 1822, 1823, 1824, and 1825, he was re-' siding on the coast of Mexico, near Vera Cruz, and was well acquaint-'ed with the commerce of that port; and that during the first four' years the city of Vera Cruz was occupied by the Mexican troops, while
the Castle of San Juan de Ulloa was held by the troops of the King' of Spain-that, notwithstanding that all Spaniards had been expelled'from the interior of Mexico, many were permitted to remain on the'coast, and the Castle of San Juan de Ulloa was permitted to draw'her regular supplies of provisions from the city of Vera Cruz during'the years 1821, 1822, 1823, and 1824; but some time in the year' 1824 a change of commanders in the city of Vera Cruz took place, and
the Castle was prevented from drawing her usual supplies, and declared in a state of siege and blockade, under a decree which had issued' by the Supreme Government in the year 1822, which had not previ-'ously been enforced; and a new decree was published, directing that'foreign nations should be notified-never heard of any notice having'been given to foreigners, other than a placard posted up at the corner'of the streets of Vera Cruz, and a notification given to the commander'of the Castle by the commander of the city-heard of several captures'having been made by a small armed schooner under the Mexican
flag."-See Doc. JNo. 14.
This testimony proves that the decree of October 8, 1823, was not
enforced, but remained a dead letter; that, until the issuing of the
second decree, all about Vera Cruz bore the relations of peace.
The Board have fallen into a great error of fact by assuming that,
after the first decree, there was in fact a continuous state of active
hostilities, and that the Castle after that date was at all times a blockaded and besieged place-that this fact was notorious to all the worldand that the Susan was in delicto, even for fitting out at Baltimore,
and entering on her voyage to the Castle. I think I am not mistaken
that this is their position, for, without it can be sustained, their decision is unsustainable.
The Board say that " the facts developed by the evidence in this case'are sufficient to justify the presumption that the fact of the blockade
was well known to the owner and the master."
A very different view of the facts is taken by the counsel; the careful examination of them convinces him that they repel such a presumption. They show there was no actual blockade, no serious interruption to commerce for most of the time, nor an exterior of a hostile state
between Spain and Mexico. He thinks it is made quite manifest by
the proofs that there was not a blockade at the time the Susan sailed;
in fact, no hostilities, but that a quasi peace existed.




46
To rebut the presumption of the Commissioners above stated, I ask
their attention to the aforegoing quotation from Presas's deposition, and
also to the following extract from the original letter of the captain of
the Scott, filed in the case of that schooner, as document No, 12. The
Scott, it will be recollected, arrived at the Castle on the 4th of January,
1825. She sailed from the United States after the Susan. Public
opinion at Baltimore was undoubtedly the same when the Susan sailed
as it was at New Orleans when the Scott left that place.  The captain
of the Scott says:
" When I sailed from New Orleans, I knew not that the Castle was' in a state of blockade. I was not boarded during the passage by any' Mexican cruiser to advise me of the existence thereof, if any such does'exist; it is, besides, a notorious fact, that until the present period'American vessels have had free communication with the Castlo,. and
the trade has been always considered legal; consequently, I cannot
conceive why my vessel has been treated by the Government of Vera
Cruz worse than an enemy, for the forts of that town did not fire upon
the Castle, a declared foe," &c.
This is a cotemporary document, written on January 6, 1825. This
letter reflects the public opinion of the state of things between the Castle and Vera Cruz, as they were believed at New Orleans when the
Scott sailed, and undoubtedly as they were understood at Baltimore
when the Susan left that port.
I am fully convinced that, if the Commissioners will take the trouble
to look at the proofs in the cases of the Susan and the Scott, they will
be satisfied that hostilities were intermitted, if they before existed, until
the issuing of the second decree; and even shortly after that was issued
they were again intermitted, and that neutral merchants did believeand the deportment of the belligerents authorized them to believe-that
commerce with both Vera Cruz and the Castle was thrown open to
them; and that, in fitting out their vessels to either of those places,
they were pursuing a permitted commerce and respecting belligerent
rights.
It is very clear that no nation can have the rights of a belligerent,
unless it pursues the conduct and maintains the attitude of a belligerent. If it claims to be in a state of war with another country, it must
prosecute the. war with the means it can command. If it ceases to carry
on hostilities, it cannot say to neutrals that they shall regard its rights
as a belligerent. In this case, hostilities were not only intermitted, but
a free commercial intercourse was established at the very time the Board
assume the parties were Jagrante bello.  They give this unfair advantage to Mexico: they propose to allow her the benefits of depredating
upon our commerce, considering it illicit by reason of a state of war,
while she is released from the burden of carrying on a war or presenting to the world a belligerent attitude; they regard the Castle as a besieged or blockaded place during the whole time it was in possession of
the Spaniards, after they were driven from the interior of Mexico; yet
the Mexican decree of October 8, 1823, shows that until that date they
had as open and unrestricted trade with Spain as they could have had
in the midst of the profoundest peace. The deposition of Presas, before referred to, shows that the same free intercourse was continued




47
after the decree of the 8th of October, 1823. The other proofs show
that our merchants did believe, and had reason to believe, that there
was no such hostilities between Mexico and Spain, or between the Castle and Vera Cruz, as would implicate their commerce with either.
While I would avoid indulging in uncharitable imputations, I feel
authorized to say that it appears to me that the singular conduct of
Mexico-in establishing at one time a free commercial intercourse between herself and Spain, and asserting no belligerent right-then issuing a decree of blockade without enforcing it-then again falling back
into a quasi peace —afterwards renewing the decree of blockade, and
siezing upon our vessels and cargoes, under circumstances which show
the owners did not, and could not, know of the renewal of the decree,
or the enforcement of it, and confiscating their property-looks to me
like a design to entice our merchants to put their property within the
grasp of their fangs. If in this I am wrong, I am not more so than the
Board are in holding that she maintained in good faith a state of war
with Spain, while the Castle was in possession of Spanish troops; and
that hostilities were so prosecuted against Spain as to be notice to all
the world, that neutral commerce with the Castle was rightfully interdicted by her besieging or blockading force.
The Board assume there was in fact an effective blockade of the
Castle, from the promulgation of the first decree. It was attempted
to be shown in the former argument-and I then was and still am confident that it was shown-that in fact there never was aniu actual blockade of the Castle by Mexico. I have added the foregoing remarks as
a reinforcement of that argument; and I do not allow myself to doubt
but that the Board, on again looking at the proofs in this case, and the
additional facts contained in the case of the Scott, (not yet considered
by the Board,) and applying to them the legal rule of construction to
which their attention will be invited, will be convinced that the blockade, if it ever existed under the first decree of October 8, 1823, had
been relaxed, and ceased some time before the issuing of the second
decree.  Without extending that argument, I will only bring to the
notice of the Board some further authorities:
Chancellor Kent, in his Commentaries, volume 1, p. 145, says:
" The Government of the United States have uniformly insisted that
the blockade should be effective by the presence of a competent force,'stationed and present at or near the entrance of the port; and they' have protested with great energy against the application of the right
of seizure and confiscation to ineffectual or fictitious blockades."
Again he says, at page 146 of the same volume:
" But if the blockade be raised by the enemy, or by applying the' naval force, or any part of it, though only for a time, to other objects,
or by mere remissness of the cruisers, the commerce of neutrals to'the place ought to be free. The presence of a sufficient force is the'natural criterion by which the neutral is enabled to ascertain the ex-'istence of the blockade. He looks only to the matter of fact; and if' the blockading squadron is removed when he arrives before the port,' and he is ignorant of the cause of the removal, or if he be not igno-'rant, and the cause be not an accidental one, but voluntary, or pro-'duced by an enemy, he may enter, without being answerable for a




48'breach of the blockade. When a blockade is raised voluntarily or'by a superior force, it puts an end to it absolutely; and if it be'resumed, neutrals must be charged with notice de novo, and without' reference to the former state of things, before they can be involved in
the guilt of a violation of the blockade."
The assumption of the Board that there was a continuous blockadea fact not to be assumed, but to be established by clear proof-cannot
be sustained against the foregoing authority. In none of the cases,
none that have been examined by the undersigned, is there any proof
whatever that there was even a single armed vessel, not even a gun-boat,
stationed about the Castle at the time of issuing the first decree, or at
any subsequent period. The Board has assumed that Mexico had a
considerable naval force; but that fact does not appear in the cases.
Indeed, there is reason to believe that she had but a small naval force
at that time. Only two public armed vessels are mentioned in the
proofs, the schooner of war Iquala and the Anahuac; and it is not
shown that either of them was stationed about the Castle; they were
both cruising at large in the Gulf. Neither of them is shown to have
belonged to a blockading squadron; and there is no proof there ever
was a blockading squadron, or " competent force [or any force] stationed
and present at or near the entrance of the port" —the Castle. And
according to the law as laid down by Chancellor Kent, in which all sound
authorities agree, there was no blockade. All pretence for presuming
an existing blockade when the Susan and the Scott sailed is believed to
be unfounded; indeed, the proofs show it to be unfounded.
Besides giving, as I think the Board has done, more effect to the
facts, or rather circumstances, favoring the notion of an actual blockade than they are rightfully entitled to, I respectfully suggest, and feel
confident it can be shown to the satisfaction of the Board, that they
have mistaken and misapplied the rule of evidence in relation to blockade. They do not disguise the fact that they have been liberal in presumptions in favor of the blockade; but the rule of law requires strict
proof, and discountenances all latitude of presumption.
At the same place in Kent's Commentaries (volume 1, p. 143) to
which I have referred, is found the rule of law for which I contend, and
claim the benefit of in the present case. I think the Board will be
satisfied that they have overlooked the true rule in regard to the evidence, and have been guided to their conclusions in regard to the blockade by a rule of a quite opposite character. I must invite their especial attention to the following extract from page 144.  Chancellor
Kent says:'i The law of blockade is, however, so harsh and severe in its oper-' ation, that, in order to apply it, the fact of the actual blockade must'be established by clear and unequivocal evidence; and the neutral' must have had due previous notice of its existence; and the squadron'allotted for the purposes of its execution must be fully competent to' cut off all communication with the interdicted place or port; and the' neutral must have been guilty of some act of violation, either by going' in, or attempting to enter, or by coming out with a cargo laden after'the commencement of the blockade.  The failure of either of the
points requisite to establish the existence of a legal blockade amounts




49
to an entire defea'sanee of the measure, even though the notification
of the blockade had issued from the authority of the Government' itself.,"
I venture to assert that not one of these requisite points is made out,
as the law requires they should be, by clear and unequivocal evidence,
in the case of the Susan or the Scott.  The evidence, so far from being
clear and unequlvocal, it is not to be found; there is not enough of it
to support a plausible presumption. There is no proof that there was
ever a blockading squadron, or even a single ship of war, stationed about
the Castle; no proof of previous notice; no attempt to enter after
notice-; indeed, nothing is proved to implicate either vessel.
The claimant and his counsel differ essentially with the Board as to
the condition of Mexico at the time of the captures under consideration, in regard to the naval force of Mexico, and the employment of
it. The Board say:
" So far as the evidence upon this point goes, there is a decided pre-'ponderance in favor of the position that Mexico kept as large a maritime force in the vicinity of the Castle as was necessary, under the'law of nations, to: give effect to the blockade.'
If there be any proof in any of the cases which have come under
the view of the counsel, (particularly including the Susan and Scott,)
to show that any maritime force was stationed in the vicinity of the
Castle-that a single vessel or a gun-boat was stationed there, or was
about it, (only occasionally, as they were wandering about the Gulf)such testimony has escaped his notice.  At the time alluded to, the
Government of Mexico was almost in a derelict state; she had, as
President Victoria stated on tile first of January, 1825, no federal
courts; the ties which bound the Departments or Provinces to the
central Government were broken; and he urges the re-establishment
of them.
It is therefore difficult to see how Mexico could-there is no proof
that she did-keep up a respectable naval force.  No maritime force
except two schooners of war, the Iquala and the Anahuac, are mentioned, and these were cruising about the Gulf.  The assertion is therefore repeated, with confidence in its entire accuracy, that there is no
proof that any naval force, not so much as a single vessel of war, was
ever stationed about the Castle, to maintain the proclaimed blockade,
down to the time of the attacks committed on the Susan and Scott.
The authority cited from Chancellor Kent shows what a belligerent
must do to sustain his blockade, and with what clearness of testimony
he must establish it.  If presumptions are to be allowed, the most
probable one is, that Mexico failed in every one of the indispensable
requirements of a legal blockade.
Though it is denied, and the evidence warrants the denial, that she
ever had a blockading force stationed in the vicinity of the Castle, it is
admitted that she had in the Gulf sufficient force to capture an unarmed
neutral vessel while: engaged in lawful trade; but it was not expected
that the claim for the Susan would be met and resisted by the argument that she must have had a sufficient blockading force in the vicinity, because she had there (a doubtful fact) sufficient force to capture
that vessel:; that is, if there is force sufficieint to capture a single neu4




50
tral vessel in the vicinity of a place declared to be in a state of blockade, that is evidence not only of an actual blockade, but the further
evidence that the blockade has been kept up constantly and properly,
from the day it was proclaimed. It seems to amount to this proposition: that, after proclaiming a blockade, without showing in point of
fact an actual blockade, the party has a right to capture any vessel, in
the vicinity of the port, that it has the ability to capture.
Rather than give validity to such doctrine, it would be better for
neutral commerce to give full effect to a paper blockade.
As both the Susan and the Scott sailed from the United States before the decree of the 14th of December, 1824, was pronmulgated, they
cannot be implicated for sailing to a blockaded port —if there never
was, or ceased to be, a blockade under the first decree.
They must have been warned off, or charged, with direct proof, with
actual notice, before they could be liable to confiscation.
Sailing before the establishment of a blockade, they would not be in
delicto if they had attempted to enter the port, had there been a blockading fleet before it as large as the whole British navy.
In the argument in the case of the Scott, the two kinds of blockade
are pointed out, and the legal doctrine applicable to each. In the second kind of blockade a blockade with notification —actual notice of it,need not be brought home to the master or owner of the neutral vessel. Of such a.blockade there may be an implied or constructive
notice; but that is not the case in regard to a simple blockade.
The Mexican blockade (admitting argitendo there was one) was a
simple blockade.
The undersigned is convinced that the Board, by not discriminating
between the two kinds, and the doctrine in regard to notice peculiarly
applicable to each, have been led to an erroneous conclusion in this
case; and have applied the doctrine of implied notice to a simple
blockade, whereas it is peculiarly applicable to a blockade with notification.
A blockade with notification is where the Government of the blockading belligerent gives notice to the Government of a neutral nation
of the actual blockade, and enjoins upon the Government of the neutral nation to make the fact known to her merchants.
After a proper length of time, it may be presumed that such merchants have, through their Government, received notibe of the blockade. To such a case the doctrine of construction or implied notice is
applicable. The form of proceeding in such a case will be seen by the
paper hereto [annexed,] marked A.
The doctrine of constructive notice, or knowledge aliende, referred to
by the Board in support of their vieNws in the case -of the Susan, applies
to cases arising under a blockade with notification.
But there was no notification of the pretended blockade of the Castle
of San Juan de Ulloa. Sir William Scott states, in onre of the cases
referred to, that a notification to one neutral nation is not a notification to another neutral natiohn.
In the case of simple blockades-and such was the Mexican blockade, if it was anything but a mere fiction-the law is laid down with
great precision in the case of the " Betsy " —1 Rob. Rep., 93-referred to in the filed argument,




51
Actual knowledge must be brought home to the neutral, before he
can be implicated in a violation of the blockade. A proclamation or
general notification is not a sufficient notice.  "A knowledge of the ex-'istence of such a blockade cannot be imputed to the party, merely in' consequence of such a proclamation or notification." —Wheaton on
Captures, p. 193.
The doctrine of all the cases is, that there must be actual knowledge
of the blockade brought home to the neutral. This is distinctly stated
by Wheaton and Sir William Scott, in the case of the " Betsy;" and
by none anywhere controverted. The captors must show actual knowledge brought home to the captured-so the authorities say; but the
Board seems disposed to be satisfied with less, much less, than I suppose the law requires.
The counsel for the claimant differs widely from the Board as to the
facts of the case.
If it has been shown, as I think it has, that there was no actual
blockade at the time the Susan and Scott sailed, then the ground of the
presumption of the Board on the point of notice is swept awvay, having
not a single fact on which to base the slightest presumption of notice.
Assuming more than is proved, that there was a blockade when the
first decree was issued, it is most evident that there was no blockade
for some time before the second decree.  The commerce to the Castle
was an open, free commerce to neutrals when these vessels sailed; and
if there was, in fact, an investing force when they arrived, they could
not be implicated until they were warned off.
A neutral vessel sailing from a port before the knowledge of the
blockade had reached it, is " entitled to a notice, even at the blockaded
port."-The Spes and Irene, 5 Rob. Rep., 76.
If the counsel, in the argument submitted, went beyond what was
warranted by the testimony in saying that the Susan was captured
" out at sea," the Board are equally without support from the proof,
in holding that she was captured off the coast of Mexico, near the
" Castle of San Juan d' Ulloa." Of the two inferences, it is believed
the former is, by the evidence, rendered the more probable. The proof
does not show precisely where she was. The captain, with Lincoln
and Manter, who authenticated the protest under oath, are the only
witnesses giving testimony on the subject, who could know where the
capture took place. The captain, in the protest, states:
" Departed [from Havana, where he had been driven by stress of' weather] December 15, and, in prosecution of the legal voyage afore-' said, were fallen in with and captured by the national schooner the'Anahuac, Lieut. Comn. William Cochrain, on the 20th of December,' and sent into the port of Sacrificios," &c.
This language strongly conveys the impression, though it does not
directly aver the fact, that the capture was made " out at sea." If
she was not out at sea, and was in the vicinity of the Castle, she could
hardly have been sent into the port of Sacrificios; for that is in, or a
part of, the harbor of Vera Cruz.  But the American Consul, in his
letter to the Secretary of State of his Government, says that she was
"captured off the Castle, with provisions-." This testimony by no
means fixes the place of capture. The Consul must have spoken from




52
information derived from others, not from the captured certainly, but
probably from the captors. This is not an inference, but a fact; it is
shown in the very letter from the Consul in which the expression " off
the Castle " is found, for in it he says:'" The captain and supercargo' were taken out, and detained on board the vessel of war, so that I'have yet to learn all the facts connected with the capture."  The
captors were at Alvarado when this letter was written, and the information must have come from them, and not from the captain and supercargo, who were then confined in a gun-boat at Sacrificios.
The expression off the Castle, is not equivalent to near the Castle.
A vessel is often said to be off a port when she is out at sea, many
leagues distant from it. By the proofs, it appears that the first information we get that the Susan was captured off the Castle-which the
Board construe to mean " near the Castle'-is from the American
Consul, in his letter of the 5th of January, 1825; but the Consul states
in that very letter that he has not learned the facts of the case, because; the captain and supercargo were taken out, and detained on board the
vessel of war."  He must be understood as sending to our Government
the Mexican account of the affair. The next thing we hear on the subject is the letter of Taylor, Sicard, & Co., dat-d Alvarado, 9th January, 1825-Taylor, of this firm, was the American Consul who wrote
the former letter of January 5. It is very clear that this second letter
also was written before any communication with the captain and supercargo, and only stated what the captors or the Mexicans said in relation
to the capture. It is very natural, as the Mexicans had already (within
six days, and in the absence of the supercargo, captain, and crew of the
Susan) sold the vessel and cargo, that they should assign a plausible
cause, and select a proper place for the capture, in order to make sure of
the booty. To show that the fact stated in this letter was also of Mexican origin, and ought not to be used against the claimant without proof
of its truth, I extract a sentence from it. After alluding to the pretended condemnation, and the sale of the vessel and cargo, the writers
say: " We are ignorant of all other facts, save that of her capture and
condemnation." This shows that they did not know the place of the
capture, though they gave the Mexican statement that it was off the
Castle. It is hard, indeed, that this Mexican story, got up to cover
the wrong, should be used, without being substantiated by proof, to defeat a just claim.
There is another fact in this case which;, when brought to the particular attention of the Board, must convince them that the Susan was not
calptured " near the Castle."
The American Consul at Alvarado hastens to give early information
to our Government of the capture,  He writes to the Secretary of State
here before he had seen the captain and supercargo, they being yet confined on board the Anahuac, or a gun-boat at Sacrificios. His letter
is dated the 5th of January; in it he says: "The day before yesterd day, an American schooner, the Susan, of -, Captain Newman,
was brought in here (Alvarado) as a prize," &c. It is obvious that
he means to speak of the event as just having come to his knowledge;
and on the 9th January, his house (Taylor, Sicard, & Co.) wrote to the
owner of the Susan, informing him of her arrival as a prize at Alvara~do




53
on the 3d day of that month. It is a clear inference from these letters
that the arrival of the prize, as the Susan is called, afforded the first
information of her capture, and that arrival was on the 3d of January.
Alvarado is but a few miles distance from Vera Cruz, and between
them there is a daily, I may say, an hourly intercourse.  Merchandise
for the latter place is often discharged at the former. I take it as a
fact established by the proof, not as a presumption) that the knowledge
of the capture was not known at Alvarado until the -3d of January, and
from the proximity and intercourse between that place and Vera Cruz,
could not have been known many hours before at Vera Cruz. It is
clearly proved, and the Bdard so state it, that the Susan was captured
on the 20th of December. If in truth she was captured "near the
Castle," she must have been captured in sight of Vera Cruz, and the
fact of her capture must have been known that very day at Vera Cruz,
and within a few hours thereafter at Alvarado. If taken immediately
after capture to Sacrificios, which is within three or four miles of Vera
Cruz, her capture must have been known at Vera Cruz and Alvarado
certainly within twenty-four hours, yet it appears not to have been
known until the 3d of January. Where was the Susan during the thirteen days from the 20th of December to the 3d of January, on which
day she arrived at Alvarado, and when the fact of her capture was first
made known at that place?
If it is answered, she was at Sacrificios, the replyis, if at Sacrificios)
the knowledge of her capture must have been known as soon as the 21st
of December to the American Consul at Vera Cruz, and to Taylor)
Sicard, & Co.; and they would have sooner written, and written in a
different manner, if they were speaking of a bygone event. Why should
she have laid thirteen days, or even one day, at Sacrificios, when Alvarado, near by, was the place where prizes were sent, as appears it was
in this and other cases?:There is no other way of accounting for the
non-arrival of the Susan at Alvarado until the 3d of January) and that
the capture was not known there until that day, but the fact that she
was captured "out at sea."
It seems to me that the two circumstances to which I allude support
the position that she was out at sea when captured; and are utterly at
war with the Board's position, that she was captured "near the Castle."
In their account of the affair, the captors meant to state a case that
would give plausibility to the condemnation, (if there was one;) they
therefore use the vague terms, " off the Castle."  If they had stated the
true place or time, they would have defeated their own object. I cannot resist the conviction that there was an artful misrepresentation of
the transaction by the captors, which deceived our Consul, (by whom
the claimant was misled,) for the purposes of securing to themselves the
fruits of a wrongful capture; and they will not have failed in their object, if the Board should hold on to their construction of the terms " off
the Castle," means near the Castle. It is impossible to account for
the lapse of thirteen days between the capture and the arrival of the
Susan at Alvarado, if she was seized near the Castle; but if she was
on her voyage, as, the,captain and supercargo  state, and out at sa,
there'is no difficulty in the case. I still think, ail thigs considered,




54
that the testimony warrants the position in the former argument~ that
the capture was made out at sea.
The Board regard their position, that the capture Was near the Castle, as strongly fortified by the consideration that it is an important
fact for the claimant to show, that the Susan was captured out at sea,
and therefore it was a fact he would have proved if it had been true,
This is certainly unconclusive reasoning; the premises for the conclusion are wanting. In the view taken by the claimant and his counsel,
nothing could be more immaterial than the place of capture. If there
was not, and they solemnly believe there was not, an actual blockadeif it was understood (as it is proved) at New Orleans, that free trade
was carried on with the Castle, (see the letter of the captain of' the
Scott) —how was the place of capture important?
It was as much the violation of neutral rights to capture her in the
vicinity of the Castle, or under its guns, as it would have been to capture her in the middle of the Gulf, or at the mouth of the harbor from
which she sailed. If there was no effective blockade, as the claimant
certainly believed and still believes there was not, or if there had in reality been an effective blockade, and knowledge of it was not brought
home to the owner or master, he was, by the law of nations, safe from
legal capture anywhere and everywhere. It is the peculiar views of the
Board in relation to the blockade, views never entertained by the claimant or his counsel, which make the place of capture at all material6
The argument, therefore, that he did not render certain what was uncertain, but the certainty of which he thought immaterial, though in
this respect the Board differ from him, is not entitled to the consideration given to it.
Having, as it is hoped, shown to the satisfaction of the Board that
there was no blockade which the Susan or the Scott did or could violate, there remains another objection to the claim, which calls for a; few
remarks.
It is urged that the two schooners are implicated for violating a
siege; the Board seem disposed to regard the Castle as a place in an
actual state of siege, when the Susan was captured and the Scott
fired on.
If the Susan was not near the Castle —a fact which I regard as well
established-then it is very clear she cannot be implicated in the offence
of attempting to violate a siege. The law referred to by the Board
will not be questioned; but, as in the case of a blockade, there must be
clear and certain proof of an actual siege, notice or knowledge of it
brought home to the offending party, and also a well-authenticated act
of assistance or attempted assistance to the besieged, should be proved
upon the neutral.
The great,and important fact of an actual siege of the Castle is denied. If Mexico did not see fit, or was not in a condition, to station a
naval force about the Castle, which is entirely surrounded by water,
and at too great distance from land to be much annoyed by batteries
thereon, it is extremely improbable that it was besieged by a land force;
and:-a siege of such a place, without a blockading force aiding in it,
would have been ineffective and idle.
While the rights of Mexico as a besieging power are admitted, the
fact of a siege is pbsitively denied.




This's too important a point to rest on mere presumption, for:Mexico has not set up such pretension, and it should not be set up for her.
The importance to Mexico of cutting off supplies from the Castle,
and this compelling its surrender, is not any proof that she did this
thing, or attempted to do it. For a long time after.the Castle was held
adversely to. Mexico, there were no hostilities prosecuted against it.
The decree of the 8th October, 1823, shows that, anterior to that time,
a free and friendly intercourse was carried on between the Castle and
Vera Cruz, Presas's deposition shows that, after that time, the same
free and friendly intercourse existed between the two places; and the
letter of the captain of the Scott says that trade was free to neutrals
with the Castle, and that that fact was notorious at New Orleans,
But what is decisive as to this question of siege is, the letter of our
Consul at Alvarado, written on the 5th January, 1825; the opening
sentence of the extract furnished in this case is as follows:
"' Hostilities have again commenced between San Juan d'Ulloa and
Vera Cruz.3' If they then commenced, they did not exist before. The
Susan was captured fourteen days before that on which these hostilities
commenced, and the Scott was then at the Castle.
It may well be asked, when did the siege commence? What amount
of force was employed in carrying it on? What one operation did the
besieging force conduct against the place? To show that there was an
actual siege, there should be clear proof on all these points; but there
is none on either of them. The importance of a vigorous siege to Mexico, and the proof of one, are very different things,
No cruising force is shown or pretended at any time; Is there the
slightest proof of any attempt to reduce the place by siege? The land
batteries, it is true, fired at the schooner Scott, after she had been permitted freely to enter the waters of the Castle; but this will not, I
trust, be construed into a besieging operation.
~To constitute a siege, there must be a besieging force investing the
place; there was none in this cased-none pretended. There were probably a few troops in the forts, but that fact is not proved; but they had
at no time operated against the Castle.
To use the language of Chancellor Kent as applied to blockade,
which is not less applicable to a siege) " The presence of a sufficient'force is the natural criterion by which the neutral is enabled to ascertain the existence of the siege.  The neutral looks only to the matter
of fact."
There is no proof that any besieging force ever invested the Castle;
that any annoyance was ever attempted, nor a battery raised against it;
the land batteries were constructed undoubtedly for the defence and
protection of the city of Vera Cruz.
Unless there can be an effective siege (which neutrals are bound to
respect) without a besieging force, without manifestation of investment,
the Castle cannot be regarded as in a state of siege. The presence of
power in the besiegers is the only notice which neutrals are bound to
respect.  This is the true and only safe doctrine on the subject.
The undersigned cannot believe that the Board will feel authorized
to sustain Mexico in:seizing and converting to her use the Susan and
Scott, and their trgoes,:on the ground of an invisible and unproclaimed




siege never existing.  It really appears to me that this ground of defence is, if possible, more untenable than that which is based on the
blockade, weak and worthless as I regard that to be,
I will close these remarks by apologizing for their great length, My
confidence il the justice of this claim has strengthened by the additional
consideration I have gven to it.  Though this confidence in itself should
have no influence with the Board, it will, I trust, be received as an excuse for any expression which may have inadvertently escaped me,
which may not be-as I intended they should be-perfectly respectful
to the.Commissioners, and for any additional trouble I may give them.
I hope it may induce them to revise the proofs, and reconsider their
own views and argument.
All which is respectfully submitted,
JAMES H. CAUSTENd
WASHINGTON, February  10, 1851,.[A]
From American State Papers,.Gales and Seaton's reprint,    paol., 3, p:ge-,5.
NOTICES OF BLOCKADE,
Lord Grenvile. to Mr. King.
MARCH 22, 1799.
" The undersigned, Secretary of State of His Britanic Majes~ty,
has received His Majesty's commands to acquaint Mr, King, Minister
Plenipotentiary of -the United-States of America1 that the King, judging
it expedient to avail himself of the superiority of his naval forces fot"
the defence of -"his dominions, has signified his commands to the Lords
Commissioners of the Admiralty to cause the most rigorous blockade to
be established:at the entrance of all the ports of Holland, -which will
be -maintained and enforced in the strictest inanner, according;to'the
usages.of:war, acknowledged and. obser-ved,in similar cases,
Mr. King is therefore requested:to;apprizethe American Consuls and
merchants residing in England, that the above-meationed ports of the
United:Provinces are and must be:considered as being in a state -of
blockade, and.that from this time no,neutral vessels;can be suffered to
enter them, upon any consideration, or under any pretence whatever 
and that all the measures authorized by the law of nations, and the respective treaties:between His Majesty and the, different:neutral Powersg
will:henceforth be adopted and executed with,respect,to vesselsdestined
for the said ports,,or,such as shall attempt to enter:them after this
notice.                                       GRENN;VIILLE."
Lord Grenville to -Mr. King.
"The undersigned, Secretary of State h:s:received His Majesty's:ommand to inform Mr. JKing. that His:M jesty has judged it expedient to,uspead for the preent the bilpok~4a of ~ll the ports in the United; Pro nees, which  wa;vs'es~i s4hd by iHls M g.sty's orders,and which
w-:s.:Qunced to Mr. Kirg;by:the. desiged, in jisjote  dat, March
2ild at. -                ": _NVL E.                         "




Mr. Merry to Mr. Madisonll
APRIL 12, 1804,
" Mr. T'hornton not having failed to transmit to His Majesty's Govw
ernment an account of the representation which you were pleased to ads
dress to him under date of the 27th of October3 last year, respecting the
blockade of the islands of Martinique and Guadaloupe, it is with great
satisfaction) sir, that I have just received His Majesty's commands,
signified to me by his principal SeCretary of State for Foreign Affairs3
utnder date of the 6th of January last, to communicate to you the instructions that have in consequence of your representation been sent to
Commodore Hood and the Judges of the Vice Admiralty courts in the
West Indies.
I have accordingly the honor to transmit to you, sir) enclosed, the
copy of a letter from Sir Evans Nepeau, Secretary to the Board of Admiralty, to Mr. Hammond, specifying the nature of the instructions which
have been given. His Majesty's Government doubt not that the promptitude which has been manifested in redressing the grievance complained
of by the Government of the United:States, will be considered by the
latter as an additional evidence of His Majesty's constant and sincere
desire to remove any ground of misunderstanding that could have a
tendency to interrupt the harmony which so happily subsists between
this Government and that of the United States.
ANTHONY MERRY."
[Extract from the enclosure.]
" Thereupon I have their Lordships' commands to acquaint you, for':his Lordship'.s information, that they have sent orders to Commodore
IHood not to consider any blockade of those islands as existing, unless' in respect of particular ports which may be actually invested, and'.tn not to oapture vessels bound to;such port, unless they -shall have' previously been warned not to enter them."
MR. CAUSTE1N'S ADDITIONAL  ARGUMENT-,:SUSAN
SCOTT, &c.
[Filed March 12, 1851.]
The importance which the Board seem to attach to the facts, that the
Susan wasj as set forth by the captain's protest, bound for. the Castle
of San Juan d'Ulloa-that she anchored near to it-that she obtained
a pilot from it-;-that the captain landed there and took off two launches,
which were loaded from the schooner and taken to the Castle, all before
the firing from the.city batteries. opened on her3 go, as the remarks made
by the Board seem to hold, to prove an illicit trade, induces me to submit to the Board the following brief remarkks: 
The-facts above stated are all freely admitted; but that they go to
prove illicit trade, a violation of blockadej or smuggling, is no" less'freely resisted.
The vesse! had c!er ared ont at Baltimore for the QGulf of Mexico,
hki  of' i~tlf i:'ndit'ei J  int:etin togo g*. anyptt she might desre




Within the Gulf, or even elsewhere, including the Castle of San Juai
d'Ulloa; which, according to the proof before the Board, was regarded
at New Orleans (and doubtless also at Baltimore) as open to our comr
merce; and the probability is that she intended to trade at both places
stopping first at the Castle to sell her proVisions, and then proceed to
Vera Cruz to sell her fine dry goods. If the master, to whose discretion
the selection of a port or ports seem to have been confided, supposed
he had a right to trade at the Castle, or in fact had such legal right, (as
the argument filed on yesterday, in the judgment of the undersigned,
fully established,) thenhis going there was clearly no intention to do
wrong; nor can it be regarded as wrong in fact or in law, until this
honorable Board shall have so decided, after full consideration of the
proofs, the argument, and the laws, in connection with the existing circumstances of the case.
The mere fact of clearing for one port and sailing to another port,
which is practiced every day, is fully sanctioned both by common usage
and by law. No vessel is bound to go at all to the particular port for
which she clears out; merchants resort to such disguised or masked
voyages for the purpose of preventing a competition injurious to the adventure they aim to make profitable by secrecy; and no one dreams of
imputing to them, nor does the laiw, any intention to do wrong; there
was therefore no moral wrong in trading with the Castle. And the
question, whether it was wrong in the view of any existing law, has
been raised and answered heretofore, and now awaits the decision of the
Board; and it is not my purpose to disturb that question and answer
at this time.
That the Susan raif boldly into the harbor, and anchored under the
guns of both the city and the Castle, is manifest proof that she did not intend to do wrong to either, and therefore entertained no fear of injury
from either; her innocence was relied on, but it was wantonly abused,
The idea that first met my ear on yesterday, that goods were often
landed at the Castle for the purpose of being smuggled into Vera Cruz,
may be true; and if true, it shows that supplies for the Castle from
Vera Cruz would necessarily follow, (even if not obtained from thence
openly, as has been provedj) and the result would be a quasi peace and
no blockade.
To the honorable the Board of Commissioners on Claims against
JMexico.
IN THE MATTEtI OF THE CLAIMS FOR THE SCHOONERS SUSAN AND
SCOTT) AND THEIR CARGOES.
I fear I should go beyond alloWable limits, if I should presume to en.
ter into a further discussion of the general merits of these claims,
though I am  constrained to say there are many positions laid down by
the Board, in regard to the law of blockade, and its application to the
facts in the two cases, in which I am unable to concur; but in regard
to the facts introduced ky the Board, upon which they place some of
their strongest objectionMo these claims-being first brought to notice




in their written opinion-I trust I may be allowed to make a brief coiment:
" The law of blockade," as Chancellor Kent observes, is' a harsh
and severe lau in its operation  towards neutirals; they ought not
therefore to be involved in its penalties by a latitude of construction
and forced inferences from the facts; its application is not to be favored in that way. This is the established doctrine in relation to penal
laws; and that of blockade is highly so. The fact of an actual blockade, as well as that of notice to the patty charged with violating it, must
be established5 as the same writer says, " by clear and unequivocal
evidence."
it appears to me, and I say it with sincere respect, that the Boafd
have not, in the view they have taken of these eases, given the claimant
the benefit of these rules of law.
These new facts take away the grounds of some of the inferences
drawn by the Board. By the fair use of them, and with the benefit
of the well-established principles of the law of blockade applied to them1
the claim in both cases is, in my opinion, well made out.
The consideration of the cases which I now ask is confined to that
part of it only Which is affected by these new facts.
I perceive nothing in the decision of the Board to counteract these
two positions:
1st. That if there was not an actual subsisting blockade of the Castle at the time of the captures of these vessels, then the claims for them
are well established; and
2d. That if, in truth, there was an actual blockade at that time, but
these vessels were not notified of it in the way required by the law of
nations, they did not incur the penalty of confiscation.
I understand the Commissioners to admit, though not in explicit
terms, that on the proof submitted by the claimant that thecases were
made out, or rather would be made out, if it had been a trial between
individuals; but they require more than a prima facie case.
If the argument of the counsel assumes what the Board says it seems
to assume," that the Board are confined to the proofs which are presented by the claimant himself," it certainly assumes what was not
intended; and it is not doing justice to the capacity of the counseli
humble as it may be, to suppose he would present such a proposition to
a Board so intelligent and so capable of detecting its unsoundness, uniless his language has that unequivocal import. The proposition in the
argument, which may have been mistaken for that above stated, is,
that the claim ought to rest on the proofs, not on those presented by
the claimant only-on all the proofs; and that these proofs ought not
to be counteracted or overborne by presumptions, or the assumption of
facts not proved. The argument contends that where there is no proof
of a court with or without jurisdiction-of a condemnation with or without cause —the Board ought not to assume there was a court, that it
had jurisdiction, that it did pronounce a decree of condemnation in the
regular course of proceedings, and that it had a just cause for that decree.
But this argument is not, it seems, regarded by the Board as sound.
Another position contendedfor in the argument was, that the proof of




60
a proclamation of a blockade was not proof of an actual blockade, nor
Was it a legal ground of the inference of an actual blockade,
The first opinion given against the claim for the Susan rested, as it
Was conceived, upon this assumption, and others that appeared even
less plausible, as there was no direct, nor indeed indirect, proof of any
actual investment of the Castle.
By a subsequent decision in the Scott's case, the latitude of presumption seems to be a little circumscribed; and the Board have produced,
What it was certainly proper they should do, proof which has satisfied
them there wag an actual investment of the Castle of San Juan de Ulloa.  Upon this proof, as it is new, and now first brought to notice in
this decision, the counsel.for the claimant thinks he has a right to comment, and he does not doubt the Board will give him a favorable hearing.
The first part of the new evidence which I shall comment on is Santa
Anna's plans for reducing the Castle, as disclosed by Mr. Poinsett6
These plans were-lst. To blockade the Castle by water. 2d. To
construct a battery on each extremity of the harbor, to prevent the entrance of shipping. And 3d. To place batteries behind the city, to throw
shells into it. "' These plans (say the Board) seem to have been carried into execution."
I must say that I can find evidence to establish the assertion to a
limited extent only.  As to one of them-a range of mortar batteries
behind the city of Vera Cruz-I have not been able to find anywhere a
particle of evidence that it was ever attempted  to be executed.  If they
had batteries at the extremities of the harbor of Vera Cruz, they did
not use them for the purpose indicated by Santa Anna.
If the batteries projected by Saanta Anna to prevent the entrance of
shipping into the harbor were actually constructed, manned, and ready
to execute the designed purpose, how did it happen that the Scott sailed
into the harbor in-open broad day, immediately under their guns, without
drawing a fire from one of them'?  If the Castle was blockaded by a
competent force, or any force, how did it happen that she slowly and
deliberately proceeded to the vicinity of the Caistle, without the slightest
interference from that force?  Her entrance was' not stealthy, or made
under circumstances calculated to elude the vigilanceof the blockaders.
The time,and circumstances are stated with great particularity, and,
for aught that appears, with perfect accuracy, in the protest.  The
following is the detail of them.
At half-past three o'clock, she came in sight of the Castle; at halfpiast four, got a pilot from the' Castle; and twenty minutes after five,
came to anchor. After.that, she got out her boat, and the captain
went on shore in it, at forty minutes past six, the boat returned: with
two launches from the Castle for the cargo; these launches were loaded,
and sent on shore.
Not until all this was done was there a gun fired from the battery:-on shore.: 
This conduct on the part of the Mexicans is utterly inconsistent with
the assumption of the Board, that the Castle was at this time actually
blockaded and besieged..'in'.:fa"c't~h.i..w's..:. t w bbloekaing l'foro.ee by w,.at6r,.if the




61
batteries on land were devoted to the seige, why was the Scott pernitted to approach the Castle leisurely in the early part of the afternoon,
to get a pilot from it, to pass the batteries which commanded the har,
bor, to anchor in the vicinity of that fortress, lade from her cargo two
launches, and send them on shore, without interruption, and before the
smallest intimation from the Mexican authorities that her conduct was
illegal and improper?
Another fact which appears in the proofs, (see the Protest, Doc. No,
6,) but which must have escaped the Board's notice, is also utterly inconsistent with the assumption of an actual blockade when the Scott
entered the harbor.  After discharging her cargo-after being raised
(for she was sunk by the Mexicans) by assistance of the garrison-her
damages repaired, and she fitted for sea-all done under the eyes
of the Mexicans-she sailed from the Castle on the 19th of February,
on her voyage to New Orleans, without the slightest molestation from
the imagined besieging or blockading force. The leaving of a blockaded port is as much a violation of the blockade as the entering into it.
(1st Kent's Corn., 146.)
These facts are more than sufficient to destroy the presumption so
slightly countenanced by the other proofs, but entertained by the Board,
that the Castle was blockaded when the Scott visited it and the Susan
was captured.
But as this presumption of an actual blockade, which, in my view of
it, is no better than an uncertain conjecture, is to be set up against the
claims for the Susan and the Scott, I shall proceed to show that even
then they were not condemnable, as the proof now stands, under the
law of nations.
One of the inferences which sustained the views taken at first by the
Board against these claims, and without which their conclusion could not
have been arrived at, is completely destroyed by the new proof they
have introduced. That assumption is, that there had been an actual
blockade of the Castle continuously kept up since the proclamation of
the 8th of October, 1823. In the former argument for the claimant,
this was denied, because it was not proved; but the Board clung to it,
becailse it was not disproved.
It is now, however, disproved by the authority introduced by the
Board itself.  Speaking of the state of things as they existed on the
11th of March, 1825, Mr. Ward says, in the extract introduced into
the decision of the Boardcl:
" The Castle was occasionally supplied with fresh provisions by the
Spanish flotilla from  the Havana.")  (Vol. 2, page 69.)  And on the
same page it is stated that "the island of Sacrificios  "had been con-' verted into a regular fortification, under which the.Mexican gunboats sought protection on the approach of the Spanish fleet."
I feel warranted in asserting, and I am sustained in the assertion by
the authority of judicial decisions which will not be controverted, that
the proof shows that the blockade (supposing it ever existed as a legal
blockade) was raised, and, in consequence thereof, neutral vessels had
a perfect right to trade with the Castle.
I perceive, and much regret it is so, that the Board take a different
vieTw of the law of blockade, and particularly of the d9ctrine of no.




62
tice to neutrals, from that which I have gathered from the books and
decisions on the subject; and I therefore feel it to be my duty to refer
to some authorities that will, I think, correct the error, on whichever
side it may be.
The Board have presumed an actual blockade simultaneously with
the decree of the 8th of October, 1823. In this, I think they have
erred; but, for the argument, assume it to be correct. As soon as a
Spanish force competent to drive away the Mexican blockading force
appeared, and did drive it away, the blockade was terminated, and
neutral vessels might thereafter with impunity directly trade with the
Castle. This position is supported by the very best authorities; they
are carefully analyzed, and the doctrine thus stated by Chancellor Kent.
(1 Corn., 146.)
"But if the blockade be raised by the enemy, or by applying the' naval force, or part of it, though only for a short time, to other objects,'or by the mere remissness of the cruisers, the commerce of neutrals'to the place ought to be free."  (Authorities: 2d Caines, 1; Letter
of the Secretary of State to M3r. King, Sept. 20, 1799; 6 Rob., 112.)
Again he says, oh the same page:
" When a blockade is raised voluntarily or by a superior force, it
c puts an end to it absolutely; and if it be resumed, neutrals must be
c' harged with notice de novo, and without reference to the former state
of things, before they can be involved in the guilt of a violation of
the blockade."
The blockade proclaimed in the decree of the 8th of October, 1823,
was raised by the Spanish fleet from the Havana; the gun-boats, the
only maritime force that is proved ever to have been stationed and
present about the Castle, (all the authorities say there must be ships,)
fled for protection behind the fortified island of Sacrificios; and the
garrison in the fortress was relieved by that fleet, which was, of course,
superior to the blockading force-so states Mr. Ward.  This was a
superior force, whose visits to the Castle evidently were often repeated,
to supply the garrison with provisions, which the Mexican force, whatever it was, could not prevent; nor does it appear it ever attempted to
prevent. On the approach of the Spanish flotilla, it did not offer resistance, but fled to its fortified protection behind Sacrificios.
This, to use the language of Chancellor Kent, " put an end to the
blockade absolutely."'What was the right of neutrals thereafter? It
was unrestricted liberty to trade freely with the Castle until the blockade was resumed; and what was equally necessary and important,
until the neutrals were " charged with notice de novo, without reference to the former state of things." This is the unquestionable law
on the subject.
When was the blockade of the Castle, which is proved to have been
raised, resumed, and such notice given to neutrals? This is left altogether to conjecture; but the fact of resumption and notice, neither of
them proved, must be assumed, to make out the show of a defence to
the claim under consideration.
It is not unreasonable to surmise that, on the retirement of the Spanish fleet, the gun-boats may have come out from their hiding-place, and




63
taken a station about the Castle; but this per se is not a blockade
which affects neutral rights. There must be, besides the resumption
of the blockade by a force " fully competent to cut off all communication " with it, as Chancellor Kent says, " a notice de novo, and Without reference to the former state of things, before they [neutrals] can,
be involved in the guilt of a violation of it."
Public transactions are regarded as proofs in such a case, and may
be resorted to as evidence for the claims as well as against them. It
is well known that after the proclamation of the decree of the 8th of
October, 1823, down to December, 1825, when the Castle was surrendered to the Mexicans, a space of more than two years, it was supplied
with provisions and munitions of war by the Spanish fleet, or from on
shore at Vera Cruz. If supplied from on shore by the permission or
connivance of Mexico, or in her inability to prevent it, that in itself
was a renunciation of the blockade; and it could not be resumed so as
to affect the rights of neutrals without a new notice to them; if supplied from the Spanish fleet, that also put an end " absolulely " to the
blockade.
The visits of the fleet to the Castle were, as Mr. Ward says, occasional, that is, repeated; and whenever they happened, all pretence of
a blockade was at once ended. Until another was instituted by an investing force, and a new notice given, neutrals could rightfully trade
with the Castle as freely as if it had never been in a state of blockade.
The doctrine in regard to notice is thus laid down by Chancellor
Kent, (1 Com., 147):
" It is absolutely necessary that the neutral should have had due' notice of the blockade, in order to affect him with the penal conse-' quences of a violation of it. This information may be communicated
to him in two ways: either actually or by a formal notice from the
blockading power," (there is no pretence that such a notice was given
to the Susan or the Scott;) " or constructively, by notice to his Government, or by the notoriety of the fact."
There is no proof or pretence that any notice of a blockade-of the
original blockade or any of the resumed ones-(if they ever existed,)
was given to our Government, to act constructively upon our merchants.
But the position of the Board is, that the notoriety of the blockade
of the Castle was such as to be constructive or implied notice to all
neutral merchants, and of course to the owners of the vessels in question. I beg that this proposition may be critically considered, for it is
one of the main points of divergence in the arguments for and against
the claims herein discussed. Evidently, the notoriety which, in the
view of the Board, should have arrested the intention of our merchants,
had relation exclusively to the blockade proclaimed in the decree of the
8th of October, 1823; but that blockade ceased, and, to reiterate the
language of Chancellor Kent, an " an end was put to it absolutely 
by the first visit of the Spanish fleet to the Castle.
By that event the neutral merchants were remitted to the same state
in regard to trade with the Castle in which they would have been if
there had been no previous blockade, no proclamation, no notice of it
whatever. Everything was to be begun de novo.
But it may be said the blockade was afterwards resumed. For the




64
sake of argument, let that be granted.  The resumption was a new
blockade; and what notice or notoriety was given to it?'The law requires a notice to be given " de novo," and without reference to the
fornmer state of things."'
If the blockade was in fact resumed, that was also raised on the
return of the Spanish fleet; and if resumed again, that was the third
blockade, and neutrals were entitled to another " notice de novo, without reference to the former state of things, before they can be involved
in the guilt of violating it."
It is certain that the first blockade was raised by the Spanish fleet.
Mr. Ward's book places that fact beyond controversy. And if it was
resumedagain, the evidence shows that it was raised again by that
fleet.
If it is assumed that there was an actual blockade when the Susan
was captured and the Scott damaged, no one can tell when it commenced; but it must have been subsequent to the last visit of the
Spanish fleet to the Castle; and it would be carrying presumption beyond all allowable limits to suppose that there was any notice of it or
notoriety, which on legal principles could implicate either the Susan or
the Scott in the guilt of violating it.
The rule of law which I ask may be applied to this case is essential
to the protection of neutral commerce, but at the same time it respects
and upholds belligerent rights to the full extent conceded by the law of
nations. Neither sound policy or justice will tolerate the extension of
these rights beyond the limits clearly marked by admiralty decisions
and jurists of the most approved authority.
"' The law of blockade," as Chancellor Kent observes, (1 Com.,' 144,) " is, however, so harsh and severe in its operation, that in order
c to apply it, the fact of the actual blockade must be established by
clear and unequivocal evidence; and the neutral must have had due'previous notice of its existence; and the squadron allotted for the' purposes of its execution must be fully competent to cut off all com-' munication with the interdicted place or port; and the neutral must
have been guilty of some act of violation, either by going in, or attempting to enter, or by coming out with a cargo laden after the com-'mencement of the blockade. The failures of either of the points
c requisite to establish the existence of a legal blockade amounts to
an entire defeasance of the measure, even though the notification of
the blockade had issued from the authority of the Government itself."
Claimants have a right to resist presumptions pushed beyond what
the evidence clearly and unequivocally warrants, in order to give effect
to this harsh and severe law.
The first proclaimed blockade having ceased, and the notice and notoriety of it become ineffective, it will be impossible, as I think, to find
any proof in this case, or in the character of public events, to sustain
a presumption of due notice or notoriety of any succeeding actual
blockade, and particularly that which is presumed to have existed when
the Susan and the Scott left their respective ports in the United States.
Even the Mexican Government itself was conscious that there was
nothing in the state of things in regard to the blockade of the Castle
whihe uld fairly invjoie n-eutrals in penalties for trading with it at




65
that time; for, on the 14th of December, 1824, it declared at Mexico
the continuance of the blockade established by the decree of October
8, 1823. Why did Mexico issue the latter decree, if she believed that
there was then an effective blockade under the first decree, which would
involve neutral commerce with the Castle in the penalties of confiscation?  If the first had not been raised or relaxed, it was a nugaatory
act. But she must have known-and the second decree is a distint acknowledgment of the fact-that without such new notice, neutral commerce with the Castle could be carried on with impunity.  She was
undoubtedly well aware that the old blockade had been raised, and that
neutrals were not obliged to respect it.  Hence the cause and the necessity of that second decree. It was a notice of a new blockade.
Of that new notice, neither the Susan or the Scott can by any stretch
of presumption be charged with knowledge; and it is only by such notice brought home to them, that either could be involved in the penalty
of confiscation. They both sailed before this decree was issued; and
the Susan was captured the same day it was promulgated at Vera
Cruz.
Assuming there was at that time an actual and effective blockade,
neither of these vessels had actual or constructive notice of it, and could
not be in delicto until they had such notice, and by some unequivocal
act had shown an intention to disregard the warning given to them.
The law, as correctly stated by this Board in the case of the Julius
Cesar and Louisiana, sustains this position.
There is a remark in the opinion of the Board which imports that
they regard the notoriety of " the efforts and preparations on the part
of Mexico " to reduce the Castle, as tantamount to an actual blockade,
and due notice of it; and, consequently, that the property of whoever
undertook thereafter to trade with it was involved in the hazard of loss,
In regard to this position, I shall only say it is to me a novel principle, and, to my mind, as unsound as it is novel. I have never found
any trace of it in any report, or any treatise on the subject; it subverts
the doctrine of Chancellor Kent, and the cases he refers to; and goes
far to make a state of war a prohibition of neutral commerce with either
belligerent.
A brief notice of the inference of the Board, drawn from an expression in the policy of insurance on the Constitution and her cargo, in
support of the ground assumed, that there was an actual blockade of
the Castle, and that it was notorious in New Orleans when that vessel
sailed, will close my remarks.  The expression is not taken from the
policies, but from the report of the remarks of the court in the suit
upon them. Assuming its accuracy, it does not, in my opinion, uphold
the inference drawn from. it. The sentence quoted is as follows:
" Both vessel and goods are warranted American, and that the former
shall not force the blockade."
I should understand it to mean the blockade of any place, and it is
probable it was so expressed in the policies.
The introduction of the expression into the policies can be accounted
for in a more reasonable way than that assigned by the Commissioners,
Why is it construed to have reference to the blockade of the Castle?
The voyage insured is to Vera Cruz, and no mention of or allusion to
5




66
the Castle is found, and ought not to be presumed. It was known at
New Orleans, at the date of the policies, that Spain had a fleet at the
Havana which often visited the Castle; and when it did so, the Mexican
maritime force fled from it, and sought protection under the batteries
on Sacrificios. The insurers undoubtedly thought, that when the Constitution arrived, it might be found that the Spanish fleet-as it was
competent to do so —was blockading the port of Vera Cruz, for which
port the schooner was cleared, and therefore required a warranty against
forcing the blockade. This is certainly the more probable conjecture;
and to show that this is not a mere conjecture now resorted to in order
to escape from the inference of the Board, but was a widespread apprehension at that time, I refer to the case of the brig James & Mary,
Morgan master. (See the United States Consul's letter of July 10,
1824, to the Secretary of State, on the consular files of the Board for
Alvarado and Vera Cruz, No. 127.) That vessel sailed from Gibraltar
for Vera Cruz; but apprehending that the port of Vera Cruz might be
blockaded by the Spanish fleet, she went first to Alvarado to inquire
into that fact.
But I am not only willing but desirous that the Board should take
the opinion of the insurance companies in New Orleans; and the very
one they have referred to, the Louisiana State Insurance Company, on
the very point to which they refer, viz: the notoriety of the blockade of
the Castle at New Orleans.
The departure of a neutral vessel from a blockaded port, (unless the
vessel was in it, and laden at the time the blockade was instituted,) is
as clearly a violation of that blockade as the entrance into the port.
" The object of a blockade (says Chancellor Kent, 1 Com., 146) is' not merely to prevent the importation of supplies, but to prevent ex-' port as well as import, and to cut off all communication of commerce
with the blockaded port."
If the Castle was known at New Orleans to be in a state of blockade,
it is a fair inference that an insurance company there would not insure
at all-certainly not at the ordinary rate-a vessel and cargo from the
Castle; for the risk of insuring a vessel from a blockaded port is as
great as insuring one to a blockaded port.
Anticipating the safe arrival of the Susan at the Castle, and fearing
no obstruction to the landing of her cargo and taking in a return cargo
there, the claimant in these cases, on the 6th of December, 1824, effected insurance on her anticipated return cargo, by the Louisiana State
Insurance Company, " at and from the Castle of San Juan d'Ulloa to
New Orleans, with liberty to touch at Laguna." And on the 17th of
August, 1824, the Louisiana Insurance Company insured the claimant
on the cargo of the schooner " Sterling," " at and from the Castle of
San Juan d'Ulloa to New Orleans." (See the accompanying policies,
numbered 10.) These two policies are found among the papers of the
claimant in the two cases under consideration; and it is fair to presume
that many similar ones were issued by these and other companies to
other merchants.
Lest it should be presumed that these were extraordinary risks on
account of the supposed blockade, I will repel that inference.
Document No. 7, among the proofs in the case of the Scott, shows




67
that the ordinary rates of insurance at New Orleans, on vessels and cargoes to Mexican ports, in the years 1822, 1823, 1824, and 1825, were
from two to five per cent. It appears by the policy on the Susan's anticipated return cargo from the Castle, that the charged rate of insurance was two per cent., or one and a half per cent only, if Laguna be
not used; and that on the Sterling's cargo, one and a half.  Thus it
is proved that these insurances were not for extraordinary risks, but the
very lowest rate charged on a voyage to or from any Mexican port. If
it was notorious at New Orleans, as the Board assume, that the Castle
was in a state of blockade, would these companies have ventured upon
these risks? Would they, as one of them did, insure at the lowest ordinary rate, and the other below the lowest ordinary rate, on a voyage
which could not have been made without forcing a blockade? Such
folly cannot be reasonably imputed to them; and is only imputable to
them upon the unwarranted assumption that they knew the Castle was
in a state of blockade. Their acts in the two cases referred to- and
doubtless there are many similar ones-prove, as I think, conclusively,
that neither company knew or even suspected that the Castle was blockaded. Upon this proof, I am quite confident the Board will at once
abandon the presumption so prominently put forth in their opinion, that
it was notorious at New Orleans, and other places in the United States,
that the Castle of San Juan d'Ulloa was blockaded when the Susan and
the Scott sailed for Mexico.
If the Castle was blockaded about that time-a fact assumed, but not
proved, and indeed improbable by the unobstructed entrance of the
Scott, and still more so by these acts of the insurance companies-the
blockade must have had its beginning after the last visit of the Spanish
fleet; of that blockade no notice was given to the Susan and the Scott,
and there was no notoriety of it, on which a presumption of notice could
be fairly founded. There is therefore no ground for charging them with
the offence of violating a blockade.
The new testimony has confirmed my original views of the merits of
these claims; and as it removes the foundation on which some of the
main positions of the Board rested, I entertain the hope that it will
conduct them to a different conclusion from that to which they have
arrived.
My entire confidence in the fairness and justness of these claims,
after a full and respectful consideration of all which has been urged
against them, is my only apology for this long communication.
All which is respectfully submitted.
JAMES H. CAUSTEN.
WMASHINGTON,.March 27, 1851.
[Submitted with the above to the Board, five original policies of insurance, and sundry consular letters, —J. H. C.]




68
SCHOONER CONSTITUTION:
CASSAIGNEAU, MASTER; JAMES W. ZACHARIE, ASSIGNEE
OF FRANCOIS CHETI, AND RE-AFFIRMED BY DOMINIQUE
PESTALOZZA, ADM. OF FRANCOIS CHETI, CLAIMANT.
STATEMENT OF THE CASE.
This vessel, with a lawful cargo of provisions, sailed from New Orleans for Vera Cruz, on the 25th of June, 1824, and while on the voyage, to wit: on the 7th day of July following, was captured at sea by
the Mexican national schooner of war " Iquala," and sent as a prize
into the port of Alvarado, on the alleged ground of " a suspicious appearance " —the officers and crew being removed to the captor.
She arrived at Alvarado on the 10th of July, 1824, and on the same
day a military court, without a monition or notice of any kind, and in
the absence of the captain or any one to defend him, ex parte and in
conclave, proceeded to a mock trial, and forthwith decided the vessel
and cargo to be " good prize."
This drum-head court martial, assembled at the dwellinghouse of the
Commandant of the D)epartment, who presided, viz:
The Captain de Fragata, Don Jose Maria Fosta.
The First Lieutenant, Don Roque Martinez.
The First Lieutenant, Don Francisco de Paula Lopez.
The principal western Accountant, Don Manuel Fernandez de Castro.
The Second Lieutenant, Don Juan Nunez.
The Orderly Officer and Secretary, Don Francisco Garcia.
It is noted in the Expediente (see page 15 of the translation,) " The
Auditor not concurring therein, there being none in the Department,
nor any lawyer in the vicinity of this town." It is further noted in the
Expediente, (page 17 of the translation,) that Don Francisco Garcia,
the orderly officer and seceretary as aboved named and described, was
the gunner of the capturing vessel, and that he was very sick on the
9th of July, (the day preceding said assemblage,) and it is presumed
did not attend that meeting, though he is named as one of the members
present. Be that as it may, however, this military court decided the
case forthwith, and in the following manner. Their decision runs thus:
" There having been examined by the members of the Junta, the
proceedings and accompanying documents, [which are not described,]
upon the detention of the N. American schooner named the Constitution, by the sloop of war Iquala, in the waters of Vera Cruz; after deliberate examination, they inferred that by the direction of the vessel,' and her cargo of provisions, she could not be coming to any of our
ports, since the hogs, chickens, charcoal, and onions, are articles absolutely unsaleable therein, as they are abundant, and only so in the
fortress of Ulloa, which is in a state of effective and rigorous blockade,




69
declared by the Supreme Government in the first article of its decree
of the 8th of October of last year, [1823;] in view of which they unanimously agree to the following articles:
" 1st. That all the cargo of the said schooner Constitution is declared
good prize, since these provisions were intended for the Castle of Ulloa.
" 2d. The said schooner Constitution is also declared good prize, for
sailing without a license, [register,] in conformity with the prescript of
the 27th article of the cruising ordinance.
" 3d. That this Expediente be sent to the Auditor, that he may be
pleased to give his opinion. "
On the 9th of August, 1824, the owner, Francois Cheti, abandoned
the vessel and cargo to the Mexican Government, under protest.
On the 11th, 12th, and 13th of August, the cargo was sold by order
of the principal Commandant; and on the 30th of September, 1824,
the vessel was sold by consent of parties, and at the instance of the
owner, to prevent her destruction by the worms.
The sale of the vessel and cargo being completed, the " Junta" or
military court again assembled on the 23d of December, 1824, at the
dwelling of the Commandant-in-Chief of the Department-the meeting being held at night, viz:
The Captain of the Navy, Don Jose Maria Fosta.
The Captain of the Navy, Don Pedro Baranda.
First Lieutenant, Don Roque Martinez.
The principal Contada, Don Rafael Gomez.
The ordinary Engineer of the Department, Don Jose Amorga.
The Orderly Officer and First Lieutenant, Don Francisco Garcia.
Doctor, Don Carlos Hernandez Barratia.
The Secretary ad interim, Don Jose Cayetano Allegre.
And decided as follows, forthwith-ex parte and in conclave:
The Junta unanimously by vote sentenced the schooner Constitution and all her cargo to be good prize, for the same reasons brought' forward in the declaration of the said Junta of the 10th of July last,
which is confirmed in all its parts; and in consequence let notice
thereof be given to the parties, and let the distribution be made according to the ordinance, first deducting the duties of the public Treas-'ury and the costs of the suit,"
The Cousul of the United States, acting in his official capacity, on
the 3d of January, 1825, took an appeal* from said decision, to the
Supreme Tribunal of War and Marine in the city of Mexico; before
which tribunal our Consul complained of the irregular and unlawful
proceedidgs of the Junta, or military court, at Alvarado, and maintained that, by the articles 12 to 17 of the cruising ordinance of June,  i,
* So called, but manifestly a mere protest; since, by the laws of Mexico, an appeal could not be taken up from that " Junta." An appeal could no otherwise be
taken up than from an intervening tribunal and on a contradictory suit-which'
the Mexican officials, for their own purpose, (evidently, to prevent an examination
of the merits of the claim and of their own conduct,) chose wholly to omit. And
as the time had long elapsed within which such contradictory suit could be instituted, so it was utterly impossible for an appeal thereafter to be taken or prosecuted,
or any further proceedings had. An abandonment and protest alone remained to
tie claimant and his Government.




70
20, 1801, prizes shall be determined by summary, sentence pronounced
within twenty-four hours —that a contradictory suit shall be determined within fifteen days —and that from this second suit only an appeal
may be taken to the Supreme Tribunal of War-that these two propositions are indispensable-and that the assistance of an Auditor (who is
rigorously a counsellor,) is indispensable in both of them; and he therefore prayed that the case may be sent back, in order that the irregular
proceedings may be so far corrected by a contradictory suit or otherwise.
And the Consul refused to plead to the merits of the appeal until the
proceedings below were corrected; the court sustained this position of
the Consul, and thereupon sent the case back for correction; all the
proceedings being declared irregular.
But the law having prescribed that a contradictory suit shall be determined within fifteen days after the arrival of the prize in port, and
more than eighteen months had already elapsed, so that it was utterly
impossible that a contradictory suit could be instituted; and, besides,
the vessel and cargo had been sold, and the money ordered to be distributed, and was then in the hands of the Mexican officials, from whose
grasp no human effort could extricate it; while to pursue it further,
would only involve the owner in increased expenditure, and he was already exhausted. For these reasons, no further proceedings were had
by him; he had already abandoned the property under protest, and could
do nothing more.
This was a capture at sea; and before the vessel had come within the
jurisdiction of Mexico, civil or maritime, she was captured by a national armed vessel belonging to Mexico, called the " Iquala," sent as a
prize to Alvarado, and there immediately condemned as a good prize by
an assemblage of persons assuming to be a " Junta," the vessel and
cargo sold, and the proceeds distributed. The facts in the case show
that the whole proceedings, and the assigned causes for the condemnation, were a flagrant violation and outrage upon neutral rights.
The first ground taken in support of the claim is, that the condemnation was not pronounced by a court of competent jurisdiction, nor indeed by any court. Those who assumed to act as a court were an assemblage of officials, mostly military officers, some of whom were of
inferior grade. They were attended by no Assessor, who is always regarded as a necessary officer of a court according to the laws of Mexico,
and whose proper function is to direct the court in regard to the law.
There was not such an officer nor a lawyer in the Department.
-This proceeding took place in that stage of the revolution in Mexico
when all order was subverted, and the utmost confusion prevailed. The
Spanish authority had been swept away, but that of the revolutionists
had not been established.  Something like a regular organization of a
civil government was instituted shortly thereafter. Within six months
after this extraordinary proceeding, efforts were made to organize a regular Government.
The first Congress met on the 1st of Jannary, 1825. In the preceding December, General Victoria was elected President. In his inaugural, he states:
" The federal judiciary not existing, and the Government being pre-' eluded from  the intervention which it formerly had in that of the




ianicient Provinces, its actions in this respect, has been almost null,'and will be so until the Supreme Court be instituted by a law designating the number and local relations of the district and circuit judges,
and prescribing rules for territorial tribunals and the federal district."
(See Niles' Register, vol. 28, p. 126.)
This undoubtedly has reference to the state of things as they existed
a few months previous, when the proceedings were had against the
schooner Constitution and her cargo. It cannot be that persons holding the official positions represented as appertaining to those who acted
in the condemnation of that vessel could have been a regularly constituted court.  They were unquestionably a voluntary association-a
self-constituted tribunal-which banded together for the purpose of
plunder; and the forms of judicial proceedings were only resorted to in
order to disguise the outrage. Without laboring this point, the undersigned thinks he has just grounds for urging that the Constitution and
her cargo were not condemned by a court of competent jurisdiction.
However valid may be the cause for condemnation, unless it be pronounced by such a court, it cannot be interposed in resistance to the
claim of the original owner of the property. This doctrine is so well
known and recognised, that it is not deemed necessary to tefer to decisions of courts to sustain it.
But if the persons who pronounced this condemnation had been the
most regularly-constituted tribunal that ever existed, and if their proceedings had been conducted in due form of law, the reclamation in this
case would not be thereby impaired.  Most of the claims which the
citizens of this country have had against other nations were for the
decisions of regularly-constituted tribunals in derogation of neutral
right, but authorized by municipal laws. The courts of France acted upon the Imperial decrees; their authority as courts were derived
from those decrees, and the regularity of their proceedings could not
be impeached; but their decisions were in derogation of neutral rights,
and therefore indemnity for the wrongs resulting from these proceedings
was rightfully demanded and justly allowed. So also in regard to the
British Orders in Council of an earlier date: they authorized the admiralty courts of England to pronounce sentence of condemnation
against the rights of neutrals. Many of the claims for which indemnity
has been allowed against Mexico were asserted and sustained in opposition to the decisions of her tribunals.
The claimant is not answered by saying that a Mexican court has
pronounced that his property was rightfully seized. It must further
appear that there was just, legal cause for the seizure of the propertylegal not according to Mexican law, but legal in respect to neutral or
belligerent rights-legal in respect to international law.
A nation, through her tribunals, as well as by any other of her officials, nhay do injustice to the citizens of other countries; and if so, she
must answer to the injured party. It is not believed that these positions will be questioned; and if the undersigned shall show to the
Board, as he does not doubt he can, that in this case there was no just
or legal cause, no respectable pretext for condemning the schooner Constitution and her cargo, the claimant will undoubtedly have a favorable
award, whatever may betheir opinion of the competence of the; Alvarado court to act in the matter.




72
The confiscation of the vessel and the cargo was put on different
grounds, and it will therefore be necessary to consider them separately,
First, as to the cargo. Its principal article in value was wine. In
the captain's deposition it is (probably by mistake) called Spanish wine 3
but by the Mexican officials, and in the records of the proceedings throughout, it is called, what it truly was, French wined  No pretence was
set up by the captors or the court, that this part of the cargo, or any
other, were prohibited articles. It was not questioned, nor could it be,
that every parcel of the cargo was such as the then existing laws of
Mexico permitted a neutral trader to introduce into any of her ports.
The sole grounds of condemnation, as stated in the expediente, are 
" After deliberate examination, they [the court, if it is entitled to that
designation] inferred that, by the direction of the vessel and her cargo'of provisions, she could not be coming to any of our ports, since the'hogs, chickens, charcoal, and onions, are articles absolutely unsale-' able therein, as they are abundant, and- only so in the fortress of U1-' 1oa, which is in a state of effective and rigorous blockade, declared by
the Supreme Government in the 1st article of its decree of the 8th' October, of last year; in view of which, they unanimously agree to the'following articles:
" 1st. That all the cargo of the said schooner Constitution is de-'clared good prize, since these provisions are intended for the Castle of
Ulloa.
" 2d. That said schooner Constitution is also declared good prize for'sailing without a license, in conformity with the prescript of the 27th'article of the cruising ordinance."
A slight examination of this irregular sentence of condemnation will
show its true character.  The interference of these condemners, (whom
the undersigned will, for the sake of brevity, call a court, though he
does not believe they are entitled to so honorable an appellation,) that
the cargo was designed for the fortress of Ulloa, is deduced from two
assumptions or facts.  The first is, the direction of the vessel and cargo.  The vessel was out at sea.  This fact is proved by the captors,
for they do not pretend she was near shore; they give the latitude and
longitude of the place of capture, viz: " latitude 19~ 19', and longitude
89~ 34'; meridian west of Cadiz." All the testimony shows the vessel was out at sea when captured.  The American Consul, William
Taylor, (Document 9,) states she was ten to fifteen leagues from shored
Her port of destination was Vera Cruz, for that port she had cleared
at New Orleans, and directly to that port she was steering. She was
pursuing her true destined direction, and surely from that fact could
no inference be properly drawn that she designed an illicit trade with
the Castle of Ulloa.  Her conduct was perfectly consistent with her
destined intention on leaving the port of New Orleans.
The officers and crew were all examined without any opportunity of'
conference or concert; and, from their concurring testimony, it will be
perceived that not the slightest occasion is furnished for an inference
that her destination was different from that declared in her clearance.
They all say she was bound to Vera Cruz, and nothing appears to contradict or conflict with what they verify under oath.  No comment can
aA- to the force of the testi'ony on this point.  This: attempt to im,




73
plicate the vessel by her destination is the merest pretext that pttunderers ever resorted to.
Is the other ground of inference, that the object of the voyage was
to trade with the Castle, more plausible?  A small part of the cargoin regard to the value, a very inconsiderable part —consisted of hogs,
chickens, charcoal, and onions; and it is averred by the court that such
articles were abundant in Mexican ports, and absolutely unsaleable
therein. This is said, or rather assumed, by the court; but there is
not a particle of proof to establish the fact. The very proof introduced
in behalf of the captors, or the peculators, contradicts it.
They lay before the court the depositions of the supercargo, captain,
and crew; on that testimony alone the decree was pronounced. According to the laws of Mexico, the decree should have been pronounced
under advice of an auditor, (or lawyer;) but as none could be found at
Alvarado, or in the Department, they acted without the presence or
advice of such an indispensable official, and sought to cure the defect
by submitting their proceedings, several weeks after they were concluded, to one whom they afterwards found. - He, perceiving, as he well
might, that the coidemlnation was not justified by the proof, instructs
the court that it is proper to take the " confession-" of Cheti, the supercargo, or, in other words, to subject him to a further examination and
scrutiny; in the hope (it is presumed) that they might be able to extract
from him something more plausible for sustaining their decree.  With
this direction they complied.  They critically examined him, not only
as to all the circumstances of this voyage, but in regard to his previous
tradings. Cheti's " confession," as it is called, is found on the 20th, 21st,
and 22d pages of the record. He confirms all he had said in his deposition, in which he had deposed that he had no Spanish property on
board, and that he was in good faith pursuing his voyaged to Vera Cruz,
and had no intention of trading with the Castle.  The questions put to
him, when examined before the court, were very searching. One of them,
and his answer) are as follows:
" It being asked of him how, under the supposition of being igtiorant'of the continuance of the non-communication of the Castle with the' town, he ventured to bring a cargo to sell at Vera Cruz, when the'greater part of the articles of which it is composed were most abun-'dant in the city, and had been shipped from thence to different ports;' and how, without being sure of the state of it, he did not go to a port like' this to ascertain the truth, and take information of prices and circum-' stances, which proves that his voyage was not directed to the place' which he has indicated, but to the Castle, where he might with great' profit have sold the chickens, hogs, charcoal, and other necessary articles in that fortress, which are plenty in the city; in consequence, he'was enjoined to tell the truth.  He said that his voyage was decidedly' for Vera Cruz, in consequence of the news which he has already stated,'and that the articles mentioned he, being in Campeachy, has seen' shipped for the aid of Vera Cruz, which was short of provisions, and'on account of their low price in New Orleans, and he answers. Other'questions, charges, and recriminations, were made him, in order to dis-'cover the facts which were sought for. He answered to all, that he
does. not know anything more; than what. he has set. forth,: which he:




74
affirmed and ratified; andy it being read to him, he signed it, with the'commisioner, and me the notary ad interim of the tribunal, which I' certify."
Every part of this confession, and of the depositions of the captain
and crew, goes in a direct manner to destroy all grounds of inference or
even suspicion that the voyage of the schooner Constitution had in
view an illicit or any trade with the Castle.  It goes further-it
shows that the main pretext on which the court place their inference
that there was an intention to trade with the Castle-the unsaleableness of the provisions of the cargo in Vera Cruz-was unfounded.  He
declares that, when in Campeachy, he saw there shipped for Vera Cruz,
as being scarce and commanding a high price at the latter place, the
very articles-hogs, chickens, charcoal, and onions; which the court
say, but do not attempt to prove, were there absolutely unsaleable.
Who ever heard or imagined that it was allowable ground to condemn the cargo of a neutral vessel, trading with one of the belligerents, that the owner was ignorant of or misjudged the state of the
market to which he had sent his property; and that the belligerent to
which the property was sent had a right to confiscate it upon the sole
ground that the other belligerent wanted such articles more than the
one to which they were sent? Such a ground of condemnation, if submitted to by neutrals, would destroy all their commerce with countries
in a state of war.
The Castle of San Juan de Ulloa was held some three or four years by
the Spanish forces, after they were driven out of the other parts of Mexico; and during most of that period there was open and permitted intercourse between it and the city of Vera Cruz. It drew its supplies from
the city. Vessels trading with Vera Cruz first went to the Castle and
paid duties —eight per cent on the value of their cargoes-and afterwards were received and unladed in the city of Vera Cruz.
If this intercourse was temporarily interrupted, as it appears to have
been about the time the Constitution made her voyage, foreign merchants might reasonably expect it would soon be re-established; and
regulating their trade upon this expectation, they are not to lose their
~property if they happen to have miscalculated.
Whether the market at Vera Cruz was good or bad for the articles
which composed the cargo of the Constitution, it is enough to say, that
by the law of nations in relation to neutral commerce, the trade was
fairly open to the citizens of the United States; and the good faith of
the voyage cannot be impeached on the ground assumed by the Alvarado court.
Having shown that the pretences on which the court proceeded to
condemn the cargo were groundless, enough has been done to establish
a claim of indemnity for the loss; yet the undersigned deems it to be
his duty to present, in a brief manner, other grounds of objection to
the sentence of condemnation in this case.
The vessel was out at sea, and not within the maritime or civil jurisdiction of Mexico. This fact is clearly established. The captors do
not pretend that she was near the shore. The American Consul, who
interposed his official aid in that character, on seeing the shameful outrage and fraud committed on this property of one of our citizens, felt




75
himself constrained, as a matter of official duty, to interfere for its
protection. He appears to have thoroughly examined this case, and
says, she was " ten to fifteen leagues from land," " out of sight " of
land, when captured,
No Mexican municipal laws could affect the case; they could not
operate upon the vessel and cargo until she should arrive within the
maritime jurisdiction of the Republic, which extends to only one league
from shore. It is deemed sufficient to barely suggest this point, were
there no other ground of objection in the case; this alone would be confidently relied on to sustain the claim.
The Castle was a possession of Spain. On what ground was a direct
trade with it denied to the schooner Constitution) or any other neutral
vessel, assuming what is alleged by the court, but contrary to what is
proved, that the object of the voyage of that vessel was to trade with
the Castle? As a neutral nation, our citizens had as good a right to
trade with the Spanish possessions as with those of Mexico. The only
ground on which the trade of our citizens with the Castle could be interfered with, would be that the Castle was actually invested by a Mexican force —a maritime force. It is true the court say the Castle " was' in a state of effective and rigorous blockade, declared by the Supreme
Government in the first article of its decree of the 8th of October, of' the last year" 1823.
Thus it appears that the blockade resulted from the decree of the
Supreme Government; the Castle was blockaded because the Government declared it blockaded. This was nothing more nor less than " a
paper blockade;" and the doctrine upon that subject is well settled,
Neutrals have a perfect right to disregard such constructive blockade,
It is not shown or pretended that there was an actual investment of the
Castle by force. In one place it is said it was under the guns of the
forts on land, but that is not such an actual investment as neutrals are
obliged to respect; they do not incur the penalty of running a blockade,
when there is not an actual investing force before it.
Thete is not the slightest evidence or intimation that the Constitution
attempted to violate an actual blockades or that there was in fact any
blockading force about or in the vicinity of the Castle. The blockading force was only the decree of the Supreme Government. If, therefore, the Constitution had actually cleared for the Castle, and avowed
her intention to trade with it, she would not have been liable to condemnation, because the Castle was not invested by a blockading force.
The captors cannot sustain their assumed right to seize neutral property
on the way to a belligerent port, without they show an actual and effect-.
ive blockade, and that the neutral had knowledge thereof; and there
is no proof of either. In this case there is a most signal failure to lay
any foundation for condemning the Constitution and her cargo. The
captors prove no trading or an attempt or a design to trade with an enemy's port; and they prove no actual blockade.
There is still further objection. No notice of a blockade had been
promulgated. It will be observed that neither the captain nor the supercargo were asked if they had any knowledge of the blockade of the
Castle, but only if they knew whether war existed or hostilities had
ceased between Spain and Mexico. Their reply shows that they knew




76
of the existence of hostilities, but not of the blockade.  The supeticargo is asked if he knew that there had been firing upon each other' by
the city and Castle. His answer is, that he had heard of it, but that
just before he sailed he had learned) by a vessel from Tabasco) that
there had been an arrangement made between the city and the Castle.
The captors carefully avoid asking them about their knowledge of an
actual blockade..:... it appears, by the deposition of Juan J. Presas, not only that there was
actual intercourse between the Castle and the town during most of the
time the former was held by the Spaniards, but that the decree of the
Supreme Government, declaring the Castle in a state of blockade, was
not promulgated any other way than by placards put up in the city of
Vera Cruz. This was not a sufficient notice to neutrals; and if there
had been an actual blockade, and they had attempted to trade with the
Castle, they would not thereby have exposed their property to condemnation.  The most that could have been done) without proof of actual
notice of the blockade) would be to turn the neutral vessels away from
the blockaded place. After notice, or being turned away, if a neutral
vessel should attempt to run or violate the blockade, she and her cargo
might incur the penalty of condemnation. A knowledge of existing
hostilities is not either actual or constructive knowledge of a blockade.
On this ground, therefore, if everything that was pretended against the
schooner Constitution had been made out, there could have been no
rightful condemnation. She could have been interrupted in a trade
with the Castle, and warned off, but was not liable to be confiscated.
The law upon this subject is very clear, and need not be referred to,,
as it is held to be well known.  A brief examination of the decree of
blockade, of October 8, 1823, will of itself, it is believed, fully dispose
of this branch of the case:
The first article of the decree merely states, 6" The fortress of San
Juan de Ulloa is declared to be in a state of blockade;" but it prescribes no penalty on neutrals for trading with it, The decree further
states, the only force deputed to make the blockade effective is the batteries and artillery at the city of Mexico; but neither these batteries,
nor any other force, naval or military, is authorized to make captures
at sea.
And the only article in the whole decree, which makes prize of anything, is the third, which is wholly confined to vessels of all nations
coming into Mexican ports with cargoes of " the products and manufactures of Spain."  " They shall be considered good prize."  And
there is no other part of the decree that in the most remote manner
refers to American vessels or their cargoes.
It is very certain, therefore, that this decree does not reach this case;
and hence, the capture, and condemnation under it, is a gross and palpable robbery.
The pretext for condemning the vessel is equally untenable as that
set up for condemning the cargo.. She had not, as the captors truly alleged, a certain paper called " a
license," required by the twenty-seventh article of the cruising ordinance.
The first position taken in. opposition to this ground of condemnation
is, that a belligerent has no right to prescribe what.papers a neutral yes



77
sel shall be furnished with. If such a right on the part of a belligerent was once conceded, it would lead to the total annihilation of neutral
commerce.  For a belligerent might in that case require what could not
be obtained. There are, however, certain papers that a vessel engaged
in a fair trade is presumed always to have, and if found without them,
that circumstance is a ground of suspicion, and may have some weight
in establishing the charge of being engaged in an illicit trade. The
schooner Constitution was not an Amnerican-built vessel, and she had
not, nor could she have, a register certifying that she was an Americanbuilt vessel. She was the property of an American citizen-property
which he had a perfect right to hold and use in his foreign commerce.
He loses nothing by trading with such a vessel, except the advantages
given by our navigation laws to American-built vessels. The Constitution had, been for some time engaged in trade with Mexico; she hqd
then recently performed two voyages to Tampico without such register,
and no exception had been taken to the sufficiency of her papers. The
United States Consul, who is the proper depositary of the papers of our
vessels while they remain in a foreign port, is the proper judge of their
validity; it is one of the principal duties of his office; and in this case
he not only confirmed the sufficiency of her papers to entitle her to the
protection of his Government, but he stepped forward voluntarily, as
a matter of official duty, in her defence, and in the name of the United
States asserted her American character, and then protested against the
abuse of it by the captor, and by the tribunal that joined in the depredation upon it.
She had (what was tantamount to a register) a bill of sale or certificate of ownership, which showed she was a foreign bottom, which served
to protect her as American property on the ocean and in foreign countries, and entitled her to entry and clearance in all the ports of the
United States.
This document sufficiently and satisfactorily accounted for the absence
of a register.
Is it to be tolerated, that a foreign nation shall prescribe what kind
of papers a vessel owned by an American citizen shall have, and for
the want of which shall assume the right to condemn it "as good
prize? "
What shows conclusively bad faith in the court is, that it suppressed
this certificate of ownership, and did not put it in the expediente. But
the American Consul, who interfered after the owner had abandoned
both the vessel and cargo, and given notice to the Mexican authorities'that he would hold their Government responsible for his losses, discovered the fraudulent suppression of the certificate of ownership, and demanded that it should be added to the record. (See the Consul's petition, on page 27 of the Record.)
The Consul's petition, which will be found on pages 23 to 29, is a
very able document; it enters fully into the merits of the case, exposes
and sweeps away all the unfounded'and ridiculous pretences and assumptions on which the decree of condemnation is founded, and shows
the rank injustice of the whole transaction. The impurity of the court,
which he had witnessed and exposed, might well justify the abandonmenrit of all:hope of recoverimfig the property, since it had been already
sold, and the distribution ordered among the Mexioan officials, in which




78
this impure judge was also to participate. Under such circumstances,
the whole was very properly abandoned, under protest. The undersigned
respectfully asks the particular attention of the Board to this able document. The Consul was on the spot; knew and saw the actual state
of things there; and directly contradicts the assumptions of the court,
by reference to known and notorious facts.
The certificate of ownership having been drawn reluctantly from the
Commandant, who kept it back obviously to give color to the pretext
for condemning the vessel, all the essential and requisite papers were
furnished, and nothing was left to excuse the iniquitous character of the
whole proceedings.
Francois Cheti, an American citizen resident at New Orleans, was
the unquestionable owner of the Constitution and her cargo at the time
of her capture. His right to indemnity is clearly established. He
made a regular transfer of the claim to James W. Zacharie, in his lifetime, who now presents it for allowance by the Board. The document
of transfer was mislaid, but the actual transfer is well authenticated;
and Cheti's administrator, who was cognizant of the fact at the time,
now proves its validity and fairness.
The damages claimed are as follows-being the same as originally
filed in the Department of State, which original is filed in the proofs
in this case, No. 20, and endorsed, " filed in the Department of State,
April 9, 1845," deeming it most proper to now present the claim to the
Board as it was then presented to the Government-viz:
[Copy of the claim as originally filed in the Department of State, on the 9th April,
1845.]
Schooner Constitution, formerly " Prince Oscar,"./Imbrose Cassaigneau, master; James W. Zacharie, assignee of Francois Cheti,
claimant.
STATEMENT OF LOSS.
VesselFor the value of the vessel (p. No. 6)  -    -    -    - $6,000.00
For insurance on outward voyage, to cover premium at four
per cent., and two and a half per cent. commission    -    256.25
6,256.25
CargoFor the invoice at prime cost (No. 6 A)    -  $4,879.82
For advance thereon, one hundred and fifty per
cent. (No. 6)    -     -       -      -   7,319.73
For breaking up the voyage and loss of profit
on return cargo (No. 6)  -     -      -   5,000.00
17p199.55
FreightFor return freight and primage (No. 6)  - $1,575.00
For insurance on outward freight on $1,575,
to cover premium at four per cent., and two
and a half per gent. commission  -    -      77.93
1,652.93




79
ChargesFor expenses in defending the property (No. 6)  $1,500.00
For cost of proof and translations   -    -     350.00
-   - -   1,850.00
InterestOn loss on vessel         -  -           -  $6,256.25
cargo    -      -       -      -  17,199.55
cc   freight  -       -      -       -   1,652.93
expenses-       -       -      -   150000
From July 7, 1824, to April 7, 1845, at six
per cent. on     -      -       -         26,608.73-33,127.79
Total  -                                 $60,086.52
All which is respectfully submitted to the Board.
JAMES H. CAUSTEN.
WASHINGTON, January 27, 1851.
[NOTE. The Board submitted to the counsel a paper, setting forth certain points
of law and matters of fact in this case, as to which they wvere in doubt. This
paper is not found on the files of the Board; but an argument on said points (accompanied by additional proof) was thereupon filed, and is now on the files of the
Board, whereof the following is a copy.]
THE SCHOONER CONSTITUTION AND CARGO.
The Board having favored the undersigned with a statement of the
difficulties which have arisen in their minds in regard to this claim, he
is enabled, as he flatters himself, to remove them, principally by additional evidence herewith submitted.
Some distrust is indicated by the Board as to the validity of the
claim, from the fact " that it was not brought to the notice of the Government until April, 1845."
That the claimant felt aggrieved by the proceedings of Mexico in
this case, and procured the interference of his Government long before
the period above mentioned, appears by the following copy of a letter
from our Minister in Mexico, Mr. Poinsett, to the Mexican Minister
of Foreign Relations:
Mr. Poinsett to Mr. Viesca.
MEXIco, JVovember 12, 1829.
The undersigned, Envoy Extraordinary and Minister Plenipotentiary
of the United States of America, requests that the most excellent Secretary of State and Relations will cause him to be furnished with a
copy of the legal proceedings held at Pueblo, for the trial and condemnation of the American schooner Constitution, as well as those of the
first court, from the decision of which the appeal was made to the tribunal at Pueblo.-Ex. Docs., 2d Sess. 25th Cong., vol. 12, p. 304-5.
This single fact is sufficient to remove the slightest distrust as to the




80
fairness of this claim, on the assumed ground of long acquiescence in
the alleged wrong. When it appeared that no redress could be obtained
from Mexico, and that the policies of insurance did not cover the loss,
an appeal was made to our Government.  This appeal was made more
than twenty-one years ago, and urged through our Minister, whose demandl was disregarded, and no answer given to it. The neglect of the
claimant to present this case to the mixed Board under the Convention
of 1839 seems also to have made an unfavorable impression upon the
Board. ~ It appears by the memorials of the claimant in several other
cases, (the Rebecca, Scott, Susan, &c.,) that he did not regard the
Conventiln of 1S39, or the decisions of the mixed Commission under it,
as promising any available relief; and for that reason did not submit
either of his several claims to that Board.  Additional evidence is now
offered, to show that that opinion was freely expressed to other persons
at New Orleans at that time, and most probably to the assignor in this
case, with whom the claimant was intimately acquainted; he did then
believe, and noL without plausible reasons, that such awards would not
be worth the trouble and expense of getting them.
If in this respect he was in error, it would be hard indeed to allow
such a misapprehension to affect injuriously his claim before the Board.
Had nothing been done by our Government after the conclusion of the
proceedings of the Board under the Convention of 1839, the views taken
by Mr. Zacharie as to the value of the awards would have been entirely
correct; his main error was, in not anticipating subsequent events.  He
was wise and sagacious in regard to what would be the state of things,
if left where it was reasonable to expect they would be left.
It cannot be that he will be prejudiced in his claim in this case, because he did not fbresee an extraordinary course of future comity, not
only unprovided for and unexpected, but resulting altogether from a
subsequent and unanticipated negotiation, solicited by the Government
of Mexico, and for her own convenience and benefit.
The undersigned believes the documents now produced will relieve
this case from all embarrassment on this point.
The Board seem to entertain some doubts as to the person who owned
the vessel at the time of capture. If they will look at the proofs,
these doubts will be entirely removed. Francis Cheti, who is clearly
proved to have been at that time an American citizen, was unquestionably the owner of the vessel and cargo, though the latter was shipped
and invoiced in the name of his agent, Jacques Zino, (who was also a
citizen of the United States,) but " for the account of the said Francois
Cheti." (See invoice, and deposition No. 2.)
Among the additional documents herewith filed is the deposition of
Henry R. Denis, (No. 1,) who, it will be observed, is an aged and respectable lawyer, having been in practice of the law for forty-five years
at New Orleans, and was engaged in the suits upon the policies in this
case. This testimony will, it is believed, effectually remove all difficulties that may exist in the mind of the Board in regard to the ownership
of the vessel and cargo at the time of the capture. And the deposition
of Gallien Preval (No. 4, also herewith filed) establishes the citizenship of said Jacques Zino. And it is not understood that any doubt
is raised as to the fact that the present claimant, James W. Zacharie,




81
has fairly succeeded to the rights of said Francois Cheti, and is a citizen
of the United States.
The foregoing remarks, it is confidently believed, will dispose in a
satisfactory manner of all objections to the claim for the Constitution
and her cargo, except such as relate to the policies of insurance and the
judicial proceedings thereon.
It is now shown by the reports of the case upon the policies, (No. 7,
herewith filed,) that nothing was recovered thereon. The record of the
prize court in Mexico was produced in the suit on the policies in the
Louisiana court, and it appearing by that record that the court decided
that the vessel committed an act which was an infringement of the warranty, the insured failed, on the ground that the question of a breach
of the warranty was res judicata. It could not go beyond the sentence
of the Mexican tribunal.
Upon a principle of law which will not be here controverted, the
court in Louisiana was required to regard the sentence of the Mexican
court as conclusive, and not examinable by it, however unjust and iniquitous that sentence might have been. That the Mexican tribunal
had pronounced a definitive decree was the only matter the court in
Louisiana could investigate; and it was not within its competence to
review the decision. The copy of the case from the Louisiana Reports
(2 vol., 533) is herewith filed as No. 7, and it shows that the court
considered itself thus restricted. The principle on which the decision
was thus made is stated in the marginal note: " The decree of a foreign
court of admiralty is res judicata, in regard to the matters decided
therein."
But the Board are aware that they are not embarrassed by any such
restriction. Theirs is a larger jurisdiction, and the res judicata does
not circumscribe it. It is their province and their duty to go beyond
and behind the decisions of foreign tribunals, to review their proceedings, to rejudge their judgments, and set them at nought if they find
these tribunals have not respected neutral rights. Were not this so,
neutrals could never have any redress for their wrongs; for the courts
of the offending party would furnish a shield of protection. It is not
necessary to enforce or enlarge on this point; for the authority of the
Board to examine into the proceedings of a foreign tribunal, and disregard its decisions if they find cause for doing so, is clearly and accurately stated by them in the sketch of their opinion prepared in this
very case; and no doubt is entertained that they will exercise that
authority in regard to the Alvarado court, without being in the least
embarrassed by the result of the suits in the Louisiana court on the
policies.
Nothing will be here added in regard to the constitution of the Mexican tribunal, or the irregularity of its proceedings, to what was submitted in the former argument; and not much in regard to the iniquitous judgment it pronounced. The records of judicial proceedings do
not furnish a decree so entirely unsustainable, in regard to proof or
pretext, as that condemning the Constitution and her cargo. The
schooner cleared from New Orleans with a legitimate cargo for Vera
Cruz, a voyage in all respects free and legal. She was captured by
the Mexican armed sloop of war Iquala, while at sea, out of sight of
6




82
land, twelve or fifteen leagues from Vera Cruz, on the ground of suspicion of an intention to trade with the Castle of San Juan de Ulloa.
And what, it may be asked, was the ground of that suspicion?  Did
she clear out for the Castle? No. She cleared for the port of Vera
Cruz. Were there any papers found on board, indicating an intention to
trade with the Castle? No; none at all. The captain, supercargo, and
all the crew, were at once separated, critically and captiously examined, and some of them re-examined; each and all declared that the
voyage was to Vera Cruz in good faith, and positively denied all intention to trade with the Castle. All proof failing to make out the slightest
ground for the charge of an intended illicit trade, the captors resorted
to pretexts of a most flimsy character. They pretended to suspect that
she intended to trade with the Castle, from the course she was pursuing on the high sea. Was she deviating from her course to Vera
Cruz, the place to which she was cleared? Not at all. No such deviation was pretended or proved; for the course to Vera Cruz and the
Castle is the same, and it was absurd to set up such a pretence. If
this pretence could prevail, every vessel bound to Vera Cruz, and seized
on the high sea, might have been confiscated with impunity by the Mexican authorities. The only other pretext was, that the nature of her
cargo indicated an intention to trade with the Castle. By far the largest part of her cargo was unfitted for any market the Castle could afford; but she had some chickens, hogs, and onions, which they alleged
the Castle wanted, but with which the city of Vera Cruz was most
abundantly supplied. The allegations, both as to the wants of the
Castle and the abundant supply in the city, are not proved even by the
testimony of the captors. They draw out from the supercargo, in what
they call " his confessions," the express proof that he had heard, while
at Tabasco, that there was a great scarcity in Vera Cruz of chickens,
hogs, and onions, and in consequence of this information he had taken
them on board as a part of his cargo of the Constitution. As this point
was fully discussed in the former argument, the undersigned would respectfully request the Board to look again at pages 8, 9, 10, and 11, of
that document.
In regard to this point, which is in fact the main one in the case, the
undersigned boldly ventures the assertion that there was not elicited
one single fact that justified the slightest suspicion as to the fairness
of the voyage of the Constitution; that there is not a particle of proof
to uphold the sentence of the court; but on the contrary, in searching
to find something to justify the condemnation, the captors effectually
disprove all their pretences, which they had set up for implicating. the
vessel and her cargo.
If a reasonable suspicion in such a case would justify condemnation,
the sentence in this case could not be sustained. But the rule of evidence applicable to the case gives a better security to neutral commerce
than the suspicions which rapacity and cupidity can conjure up. The
proof required to involve a vessel and cargo in the penalty of confiscation for violating or attempting to violate a blockade must be clear and
unequivocal. Not only the actual blockade, (which, as Chancellor Kent
says, in his Commentaries, page 144, is a law harsh and severe in its
operation against neiutratls,) muist be establisied by clear n ad. unequivo



83
cal testimony, but the other acts, implicating neutral vessels, should be
proved with like certainty.
Guided, as the undersigned does not doubt the Board will be, by this
rule of evidence, he confidently anticipates a result in this case favorable to the rights of the claimants.
The expediente before the Board contains all the proofs which were
before the Mexican tribunal, and recorded by it, and its examination
will show that the decree (which the Louisiana court was by a rule of
law required to regard as conclusive, but the Board is not) was made
not only without evidence, but in fact against evidence, and in flagrant
violation of neutral rights.
[JAMES H. CAUSTEN.]
[DECISION OF THE BOARD.] —ZACHARIE, ASSIGNEE OF
CHETI. 737.
This claim is for the value of a vessel called the Constitution, and
her cargo, taken near the Castle of San Juan de Ulloa, in 1824, by the
Mexican vessel of war Iquala, and sent into Alvarado. ~ She was condemned, with her cargo, by a prize court, and on appeal the sentence
was affirmed. Cheti was supercargo on the voyage; and in his examination and subsequent confession on oath touching the question before
the court, he made oath that he owned the vessel) but the cargo belonged to another. Policies of insurance had been taken out at New
Orleans upon the vessel and cargo; and in a suit against the underwriters, the question of interest in the plaintiff, one Jacques Zino, was
directly raised. The court decided that there was evidence of interest
in Zino in the cargo, but not in the vessel. (See Zino vs. Louisiana
Insurance Company, 2d Lou. Rep.)
Francois Cheti afterwards, to wit) on the 6th of March, 1845, made
affidavit before the associate judge of the city of New Orleans, that he
was sole owner of both vessel and cargo, and that he had assigned his
interest in the same to James W. Zacharie, the present claimant. The
latter makes oath that he lost the assignment, and he brings forward
the acknowledgment of the executor of Cheti) assenting to the assignment.
The Board are not disposed to permit a party to be injured by contradictory statements, of a witness made at different times, if such party
had an interest that did not depend mainly for its proof upon the oath
of such witness. In this case, however, the proof of interest not only
depends on the testimony of a witness forsworn, but such interest is
derived directly from the witness by assignment. No one could have
known so well as Cheti who was the owner of the cargo; and at a time
most material, pending a question of interest by a judicial investigation,
he swears that another is owner of the cargo. It does not appear that
he found out his error until after the lapse of twenty years.
The Board decides, from the evidence in the case) that the claim for
the value of the cargo is not valid.
The prize court condemned the vessel because she was sailing without
a paper showing her character, and thus, they say, she wiS violating




84
the cruising ordinance of Mexico. How far a State may regulate cormmerce within her own waters, it is unnecessary to inquire in this case,
since the vessel was captured on the high seas; and the right of capture
in such cases is, in the absence of treaty stipulations, dependent on
the law of nations.
It is not directly settled by the public law what shall be the form of
certificate to protect the vessels of neutral nations sailing on the high
seas in time of war. A bill of sale, containing a description of the vessel, with proof of citizenship in the owner, may be sufficient; yet most,
if not all the nations of Europe, require that vessels shall be provided
with registers, passports, sea letters, or some certificate emanating from
the State, or by its authority, proving the character of the vessel. The
Constitution, a foreign-built vessel, (her former name being changed by
the purchaser,) was purchased by Cheti, a citizen of the United States,
and by the laws of the United States was not entitled to any certificate
from the public, establishing her ownership or character. The bill of
sale under which the owner claimed to navigate his vessel did not contain a description of the vessel, except in the name; and though attested,
as was also the citizenship of the owner, by a notary public, would seem
to justify the detention of the vessel by the captors. We think the case
before the prize court admitted further proof for the claimant. In
cases analagous, where the question of prize, if determined on the vessel's papers, would have justified her condemnation, the courts have
permitted the claimants to make further proofs-as in the case of a
vessel sailing from necessity without a register, or its accidental loss;
and also where the vessel was visited, and some of her papers necessary
for her defence were taken away. But in such cases, the courts have
ordered the vessels to be restored, on payment of the captors' expenses.
We think, under the circumstances, that the vessel should not have
been condemned upon the ground set forth in the judgment of the prize
court at Alvarado, and the claimant was therefore entitled to restitution
of the property.
The Board decides that the claim for the value of the vessel at Alvarado is a valid claim against Mexico, and the same is accordingly
allowed; the amount to be awarded subject to the further order of the
Board.
GEORGE EVANS,
CALEB B. SMITH,   Commissioners.
ROBERT T. PAINE,)
MARCH 26, 1851.




85
NOTE.
In order to a proper understanding of the final decision of the Board
(as stated at foot) on the four several cases hereinbefore set forth, it
is proper to remark, that some time before the close of the Commission,
which would be the 16th of April, 1851, the Board announced that the
numerous, cases for rehearing (solicited by motion, and granted) would
be taken up for decision on the 1st of April, and thence to the close, on
the 16th of April, be appropriated expressly to them. By their journal,
however, it appears that on the 15th of April, their last day of action,
they disposed of the mass of business stated at foot hereof; and, although their record states that they " then proceeded to consider " each
of the cases separately set down for rehearing, and " after mature consideration ordered that the said motion be denied," yet it is manifest
that the examination and decision of such a mass of business was utterly impracticable within the single day given to it; and it is no less manifest, therefore, that even the reading of such arguments and additional
proof was wholly dispensed with and disregarded.
Extracts from the Journal of the Board.
"TUESDAY,.April 15, 1851.
The Board met pursuant to adjournment; all the members present.
The Board then proceeded to ascertain and determine the amounts
to be awarded to the several claimants respectively, whose claims have
been heretofore allowedOrdered, That interest at the rate of five per cent. per annum be
computed on all claims which have been allowed, for the property lost,
or contracts unfulfilled, unless a different rate of interest was stipulated
in such contracts, from the origin of the claim to the. 16th of April,
1851, when the Commission will expire; and thereupon the Board
awarded to John Wilkins, &c." —and so also in 196 cases particularly designated therein.
" The Board then proceeded to the consideration of the motion filed
on the 14th instant, for a re-examination of the claim of E. H. Saulnier,
heretofore rejected; and thereupon came to an opinionOrdered, That the said motion be denied,
The Board then proceeded to consider the motion submitted on the
4th of March last, for a re-examination of the claim of Edmund J. Forestal and Cucullu's, administrators, for the seizure of the schooner Felix; and, after mature consideration of the same,
Ordered, That the said motion be denied."
Then follows ten like decisions. And then follows:
"The Board then proceeded to consider the motion heretofore filed
for a re-examination of the claim of James W. Zacharie, for the loss of
the schooner Rebecca and cargo; and, after mature consideration of
the Same,




86
Ordered, That the said motion be denied.
The Board then proceeded to consider the motion filed on the 19th
of March last, for a re-examination of the claim of James W. Zacharie,
for the seizure of the schooner Constitution; and, after mature deliberation of the same,
Ordered, That the said motion be denied.
The Board then proceeded to consider the motion filed on the 27th
day of March last, for a re-examination of the claims of James W.
Zacharie, for the seizure of the schooner Scott and the schooner Susan,
heretofore rejected by the Board; and, after mature consideration of
the same,
Ordered, That the said motion be denied.
The Board then proceeded "-on a new claim, viz: the memorial and
proofs of Elisha H. Saulnier, "filed this day." The memorial was "received, evidence examined, and claim for $14,950 allowed."
Then follows three additional cases in which the motion for reconsideration " is denied;" and it is remarkable that each and every case
of this description shared the same fate-all were summarily " denied."
Then follows the decisions of the Board on " colonization contracts,' 
whereof seven were rejected.
Then follows the decisions of the Board on three " land company'
claims, which were allowed.
The Board then proceeded to record a resolution in favor of their
messenger, Wm. Ryan.
The Board then proceeded to consider two additional claims for reexamination) which resulted as the former ones"Ordered, That the said motion be denied."
"The Board having finished all the business before it, then adjourned without day.
CHARLES W. DAVIS, Secretary."
I  And immediately thereafter the Commissioners and their clerk
left the city of Washington.
After the appointment of the Select Committee of the Senate to examine the proceedings of said Board, one of the members of the Board,
Mr. Smith, sent two several messages, by a mutual friend, to the
counsel of Mr. Zacharie, and afterwards repeated to the counsel in
person, "that he was always of opinion that Mr. Zacharie's four cases
[those hereinbefore described] ought to have been allowed by the
Board." He had, nevertheless, signed the adverse decisions of the
Board in each and all of the said four cases, as will be seen on pages
9) 28, 39, and 84.




87
UNITED STATES- OF AMERICA.
DEPARTMENT OF STATE.
To all to whom these presents shall come, greeting:
I CERTIFY, That with the exception of the Introduction, the Notes5
and the closing remarks after the adjournment of the Board, the papers
hereunto annexed are a true copy, transcribed from and carefully col.
lated with the original papers on file in this Department.
IN TESTIMONY WHEREOF, I, Secretary of State of the
SEAL.   United States, have hereunto subscribed my name, and caused
the seal of the Department of State to be affixed.
Done at the City of Washington, this twenty-fifth day of
January, A. D. 1853, and of the Independence of the United
States of America the seventy-seventh.
EDWARD EVERETT.