ed in the opinion in the Mitchell County | bond having been forfeited, an execution was Case; so far as the prior cases are cited at awarded thereon by the judgment of the disall they are cited with approval, and there trict court, rendered April, 1822, which it is certainly nothing to indicate that the was asserted created a lien upon the lands, court intended to overrule them. That court and overreached certain conveyances under had not changed in its personnel since the which the defendants claimed, dated Febru prior judgments, except the first, were pro-ary and March, 1823. The circuit court was nounced, and it is not probable that the judges of opinion that the lien did not overreach would have changed their views without these conveyances. But the court of appeals some reference to such change. Indeed, but of Virginia having subsequently decided one of the earlier cases was cited in the that the lien of a judgment continued pendMitchell County Case (Bassett v. El Paso, ing proceedings on a writ of fi. fa., this court 88 Tex. 175), and that supports rather than adopted this subsequent construction by such conflicts with the opinion. As we read them, court, and reversed the decree of the circuit they merely decided that some provision for court. payment must be made. In the Mitchell In Green v. Neal's Lessee, 6 Pet. 291 [8: County Case the question was for the first 402], a construction given by the supreme time presented whether the laws of 1881 and court of Tennessee to the statute of limita1887 were constitutional, and whether action tions of that state having been overruled, taken under these laws was an adequate this court followed the later case, although[509) compliance with the requirement that provi- it had previously adopted the rule laid down sion should be made "at the time of creat- in the overruled cases. See also Leffingwell ing" the debt for a sufficient tax to pay the v. Warren, 2 Black, 599 [17: 261]; Fairfield interest and to provide a two per cent sink-v. Gallatin County, 100 U. S. 47 [25: 544]. ing fund. It was held that they were. This overruled nothing, because the question had never before been decided, and the point was not made in the courts below in this case. We are simply called upon, then, to determine what is the law of Texas upon the subject, since, under Revised Statutes, section 721, the "laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States." While if this case had been brought before this court before the decision in the Mitchell County Case, we might have taken [508]the view that was taken by the courts below, treating the question as one hitherto unsettled in that state, we find ourselves relieved of any embarrassment by the decision in the Mitchell County Case, which manifestly applies to this case and requires a reversal of their judgment. But assuming that the later case was intended to overrule the prior ones, and to lay down a different rule upon the subject, our conclusion would not be different. În determining what the laws of the several states are, which will be regarded as rules of decision, we are bound to look, not only at their Constitutions and statutes, but at the decisions of their highest courts giving construction to them. Polk's Lessee v. Wendal, 9 Cranch, 87 [3: 665]: Luther v. Borden, 7 How. 1, 40 [12: 581, 598]; Nesmith v. Sheldon, 7 How. 812 [12: 9251; Jefferson Branch Bank v. Skelly, 1 Black, 436 [17: 173]: Leffingwell v. Warren, 2 Black, 599 [17: 261]; Christy v. Pridgeon, 4 Wall, 196 [18: 322]; Post v. Kendall County Supervisors, 105 U. S. 667 [26: 1204]; Bucher v. Cheshire Railroad Co. 125 U. S. 555 [31: 795]. In Morgan v. Curtenius, 20 How. 1 [15: 823], the circuit court placed a construction upon an act of the legislature in accordance with a decision of the supreme court of Illi nois with reference to the very same convey ance, and it was held that, that being the sec tled rule of property which that court was bound to follow, this court would affirm its judgment, though the supreme court of the state had subsequently overruled its own decision, and had given the act and the same conveyance a different construction. We do not consider this case as necessarily conflicting with those above cited. An exception has been admitted to this rule, where, upon the faith of state decisions affirming the validity of contracts made or bonds issued under a certain statute, other contracts have been made or bonds issued under the same statute before the prior cases were overruled. Such contracts and bonds have been held to be valid, upon the principle that the holders upon purchasing such bonds and the parties to such contracts were entitled to rely upon the prior decisions as settling the law of the state. To have held otherwise would enable the state to set a trap for its creditors by inducing them to subscribe to bonds and then withdrawing their only security. Gelpcke v. Dubuque, 1 Wall. 175 [17: 520]: Havemeyer v. Iowa County, 3 Wall. 294 [18: 38]: Mitchell v. Burling ton, 4 Wall. 270 [18: 350]; Riggs v. Johnson County, 6 Wall. 166 [18: 768]; Lee County Supers. v. Rogers, 7 Wall. 181 [19: 160]; Chicago v. Sheldon, 9 Wall. 50 [19: 594]; Olcott v. Fond du Lac County Supervisors, 16 Wall. 678 [21: 382]; Douglass v. Pike County, 101 U. S. 677 [25: 968]; Burgess v. Seligman, 107 U. S. 20 [27: 359]. If there be any inconsistency in the opinions of these courts, the general rule is that Obviously this class of cases has no apwe follow the latest settled adjudications in plication here. The bonds were issued in preference to the earlier ones. The case of good faith for a valuable consideration reUnited States v. Morrison, 4 Pet. 124 [7:ceived by the county, and were purchased by 804], seems to be directly in point. The United States recovered judgment against Morrison, upon which a fi. fa. was issued, goods taken in execution and restored to the debtor under a forthcoming bond. This the plaintiff with no notice of infirmity attaching to them. If certain decisions, pronounced after the bonds were issued, threw doubt upon their validity, those doubts have been removed by a later decision pronouncing [510]unequivocally in favor of their *validity. In the theory of the law the construction given to the bonds of this description in the Mitchell County Case is and always has been the proper one, and, as such, we have no hesitation in following it. So far as judgments rendered in other cases which are final and unappealable are concerned, a different question arises. The judgments of the Court of Appeals and of the Circuit Court must be reversed, and the case remanded to the Circuit Court for the Western District of Texas for further the blockaded port, and was steadily pursu ing it, and when signaled persisted on her course, and did not change it until after a shot was fired, and two of her papers which would have strongly corroborated her criminal intent were destroyed, the intention to break the blockade was to be presumed. 10. Restitution of the captured vessel awarded in this case without damages, and on payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel. [No. 704.] proceedings in conformity with this opinion. Argued April 11, 13, 1899. Decided May 15, THE OLINDE RODRIGUES. (See S. C. Reporter's ed. 510–539.) Vessel captured in attempting to run a blockade what is an effective blockade single blockading cruiser-right to put in further proofs-evidence of evil intentprobable cause for capturing vessel-destruction of papers-when restitution will be decreed conditionally-when intention to run blockade is presumed-terms of restitution of captured vessels. 1. 2. 8. 4. 5. 6. 7. A vessel actually captured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, cannot dispute the efficiency of the force to which she was subjected. An effective blockade is one that is so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port. The effectiveness of a blockade is not determined by the number of the blockading force. If a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the port, the blockade is practically effective. Where the claimant has declined to put in further proofs as to the violation of the blockade under the order of the district court. he cannot, as a matter of right, demand that the cause shall be opened again for further The evidence of evil intent must be clear and convincing, before a merchant ship belonging to citizens of a friendly nation will be condemned for attempting to run a blockade. proof. A 1899. PPEAL from a decree of the District See same case below, 91 Fed. Rep. 274. Statement by Mr. Chief Justice Fuller: The Olinde Rodrigues left Havre, June tion. The concealment and destruction of papers of a captured vessel authorize the presumption of an intention to suppress incriminating evidence but such presumption is not conclusive when the concealment was owing to forgetfulness, and the destruction to the belief that the papers were useless. 8. Even if the facts are not found to be sufficient to condemn, restitution will not necessarily be made absolutely, but may be decreed conditionally as each case requires; and an order of restitution does not prove lack of probable cause. 9. Where the captured vessel had been warned of the blockade and was on a course toward On the fifth of July, 1898, the Olinde Rodrigues came out of the port of San Juan, was signalled by the Yosemite, and on communicating with the latter asserted that she had no knowledge of the blockade of San Juan. Thereupon a boarding officer of the Yosemite entered in the log of the Olinde Rodrigues an official warning of the blockade, and she went on her way to Puerto Plata and other ports of San Domingo and Haiti. She left Puerto Plata on her return from these ports, July 16, 1898, and on the morning of July 17 was captured by the United States armored cruiser New Orleans, then blockading the port of San Juan, as attempting to enter that port. A prize crew was put on Messrs. J. P. Kennedy Bryan, Henry The cause having been heard on the evi- *Mr. Chief Justice Fuller delivered the[513] opinion of the court: We are unable to concur with the learned District Judge in the conclusion that the blockade of the port of San Juan at the time this steamship was captured was not an ef fective blockade. To be binding, the blockade must be known, The cargo was released without bond, and This was put by Lord Russell in his note Evidence was taken on behalf of the United States, and the cause came on for hearing on a motion by the claimants for the discharge and restitution of the steamship on the grounds: (1) That the blockade of San Juan at the time of the capture of the Olinde (513] Rodrigues was not an effective blockade; (2) That the Olinde Rodrigues was not violating the blockade when seized. The district court rendered an opinion December 13, 1898, holding that the blockade of San Juan was not an effective blockade, and entered a decree ordering the restitution of the ship to the claimants. 91 Fed. Rep. 274. From this decree the United States appealed to this court and assigned errors to the effect: (1) That the court erred in holding that there was no effective blockade of the port of San Juan on July 17, 1898; (2) that the court erred in not finding that the Olinde Rodrigues was captured while she was violating the blockade of San Juan, July 17, 1898, and in not decreeing her condemnation as lawful prize. It is blockades;' that is, blockades not sustained The quotations from the Parliamentary de- In The Mercurius, 1 C. Rob. 80, 84, Sir William Scott stated: "It is said this passage to the Zuyder Zee was not in a state of blockade but the ship was seized immediate ly on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war understood blockade in this [515]-ense; and *Russia, who was the principal party in that confederacy, described a place to be in a state of blockade when it is dangerous to attempt to enter into it." And in The Frederick Molke, 1 C. Rob. 86, the same great jurist said: "For that a legal blockade did exist results necessarily from these facts, as nothing farther is necessary to constitute blockade than that there should be a force stationed to prevent communication, and a due notice, or prohibition, given to the party." Such is the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: "A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous." Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a blockade. It is enough if the danger is real and apparent. | driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces, therefore, a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed." And undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it may be of such a character, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect, which "necessarily led neutral vessels to believe these ports might be entered without incurring any risk." The Nancy, 1 Acton, 57, 59. In The Franciska, 2 Spinks, Eccl. & Adm. Rep. 128, Dr. Lushington, in passing on the question whether the blockade imposed on the port of Riga was an effective blockade, said: "What, then, is an efficient blockade, and how has it been defined, if, indeed, the term definition can be applied to such a subject? The one definition mentioned is, that egress or entrance shall be attended with evident danger; another, that of Chancellor Kent (1 Kent's Com. 146), is that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain; the maintenance of a blockade must always be a question of degree, of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to my notions of the Law of Nations, than any relaxation of the rule that a blockade must be efficiently maintained; but it is perfectly obvious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone." [516] "It is impossible," says Mr. Hall (§ 260), "to fix with any accuracy the amount of danger in entry which is necessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its The learned district judge, in his opinbreach had reason to suppose it to be non-ion, refers to the treaty between France and existent; or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition." But it cannot be that a vessel actually captured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected. As we hold that an effective blockade is a blockade so effective *as to make it dangerous[517] in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law. In The Hoffnung, 6 C. Rob. 112, 117, Sir Even as long ago as 1809, in The Nancy, 1 Acton, 63, where the station of the vessel was sometimes off the port of Trinity and, at others, off another port more than seven miles distant, it was ruled that, "under particular circumstances a single vessel may be adequate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighboring port;" although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be performed. The ruling of Dr. Lushington in The Franciska, above cited, was to that effect, and the text books refer to other instances. Denmark of 1742, which provided that the entrance to a blockaded port should be closed by at least two vessels or a battery on shore: to the treaty of 1760 between Holland and the Two Sicilies prescribing that at least six ships of war should be ranged at a distance Juan, a town of less than 25,000 inhabitants, on the northern coast of Porto Rico, with a single entrance. From June 27 to July 14, 1898, the Yosemite, a merchant ship converted into an auxiliary cruiser, blockaded the port. Her maximum speed was fifteen and one-half knots; and her armament ten 5-inch rapid firing guns, six 6-pounders, two slightly greater than gunshot from the en- | coast of Porto Rico, but of the port of San[519] 2. one-half miles. While the Yosemite was blockading the port she ran the armed transport Antonio Lopez aground six miles from San Juan; gave a number of neutral vessels official notice of the blockade: warned off many from the port; and on the 5th of July, 1898, wrote into the log of the Olinde Rodrigues, off San Juan, the official_warning of the blockade of San Juan. On July 14 and thereafter the port was blockaded by the armored cruiser New Orleans, whose maximum speed was twenty-two knots, and her armament six 6-inch breech-loading rifles, four 4.7-inch breech-loading rifles, ten 6-pounders, four 1.5-inch guns, corresponding to 3-pounders; four 3-pounders in the tops; four 37-mil Nor do we regard Sir William Scott's judgment in The Arthur (1814) Dodson, 423, 425, as of weight in favor of claimants. In effect the ruling sustained the validity of the maintenance of blockade by a single ship, and the case was thus stated: "This is a [518]claim made by one of His Majesty's ships to share as joint-captor in a prize taken in the river Ems by another ship belonging to His Majesty, for a breach of the blockade imposed by the order in council of the 26th of April, 1809. This order was, among others, issued in the way of retaliation for the meas-imeter automatic guns, corresponding to 1ures which had been previously adopted by the French government against the commerce of this country. The blockade imposed by it is applicable to a very great extent of coast, and was never intended to be maintained according to the usual and regular mode of enforcing blockades, by stationing a number of ships, and forming as it were an arch of circumvallation around the mouth of the prohibited port. There, if the arch fails in any one part, the blockade itself fails altogether; but this species of blockade, which has arisen out of the violent and unjust conduct of the enemy, was maintained by a ship stationed anywhere in the neighborhood of the coast, or, as in this case, in the river itself, observing and preventing every vessel that might endeavor to effect a passage up or down the river." Blockades are maritime blockades, or blockades by sea and land; and they may be either military or commercial, or inay partake of the nature of both. The question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground. We are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the port, that is sufficient, since thereby the blockade is made practically effective. What, then, were the facts as to the effectiveness of the blockade in the case before us? In the proclamation of June 27, 1898, occurs this paragraph: "The United States of America has instituted and will maintain an effective blockade of all the ports on the south coast of Cuba, from Cape Frances to Cape Cruz, inclusive, and also of the port of San Juan, in the island of Porto Rico." (Proclamation No. 11, 30 Stat. at L. 34.) The blockade thus announced was not of the pounders. The range of her guns was five and one-half sea miles or six and a quarter stat ute miles. If stationary, she could command a circle of thirteen miles in diameter; if moving at maximum speed, she could cover in five minutes any point on a circle of seventeen miles diameter; and in ten minutes any point on a circle of nineteen miles diameter; her electric search lights could sweep the sea by night for ten miles distance; her motive power made her independent of winds and currents; in these respects and in her armament and increased range of guns she so far surpassed in effectiveness the old-time war ships that it would be inadmissible to hold that even if a century ago more than one ship was believed to be required for an effective blockade, therefore this cruiser was not suflicient to blockade this port. Assuming that the Olinde Rodrigues at tempted to enter San Juan July 17, there can be no question that it was dangerous for her to do so, as the result itself demonstrated. She had had actual warning twelve days before; no reason existed for the supposition that the blockade had been pretermitted or relaxed; her commander had no[520] right to experiment as to the practical effectiveness of the blockade, and, if he did so, he took the risk; he was believed to be making the attempt, and was immediately captured. In these circumstances the vessel cannot be permitted to plead that the blockade was not legally effective. After the argument on the motion to discharge the vessel, application was made by counsel for the claimant to the district judge, by letter, that the Navy Department be requested to furnish the court with all letters or despatches of the commanders of vessels blockading the port of San Juan in respect to the sufficiency of the force. And a motion was made in this court "for an order authorizing the introduction into the record of the despatches of Captain Sigsbee and |