to acquiesce in it; likewise a seizure of such neutral ships as do not find themselves prepared to submit to the measures of embargo must be considered as allowable, and it must be held in the case of active resistance that even the destruction of such ships is allowable in accordance with the rules of war; but it is inadmissible, because not grounded on international law, to condemn as good prizes on account of their cargoes, neutral ships resisting such embargo.' (Op. cit., § 52.) And it is conceded by this eminent authority that there can be, without blockade, no closure of a port not in possession of the sovereign issuing the decree. "The legislation by the Congress of the United States in 1861 relative to the closing of the ports of the South held by the Confederate armies was really conditioned on a blockade. As Mr. Seward wrote to Mr. Adams, July 21, 1861, 'the law only authorizes the President to close the ports in his discretion, according as he shall regard exigencies now existing or hereafter to arise. The passage of the law, taken in connection with attendant circumstances, does not necessarily indicate a legislative conviction that the ports ought to be closed, but only shows the purpose of Congress that the closing of the ports, if it is now or shall become necessary, shall not fail for want of power explicitly conferred by law.' (U. S. Dip. Corr., 1861, 120.) Under the authority so conferred certain ports were closed by formal proclamation of blockade which it thereupon became incumbent upon the Government of the United States to maintain effectively according to the prescriptions of international maritime law. "After careful examination of the authorities and precedents bearing upon this important question, I am bound to conclude, as general principle, that a decree by a sovereign power closing to neutral commerce ports held by its enemies, whether foreign or domestic, can have no international validity and no extraterritorial effect in the direction of imposing any obligation upon the Governments of neutral powers to recognize it or to contribute toward its enforcement by any domestic action on their part. Such a degree may indeed be necessary as a municipal enactment of the state which proclaims it, in order to clothe the executive with, authority to proceed to the institution of a formal and effective blockade, but when that purpose is attained its power is exhausted. If the sovereign decreeing such closure have a naval force sufficient to maintain a blockade, and if he duly proclaim such a blockade, then he may seize, and subject to the adjudication of a prize court, vessels which may attempt to run the blockade. If he lay an embargo, then vessels attempting to evade such embargo may be forcibly repelled by him if he be in possession of the port so closed. But his decree closing ports which are held adversely to him is, by itself, entitled to no international respect. Were it otherwise, the de facto and titular sovereigns of any determinate country or region might between them exclude all merchant ships whatever from their ports, and in this way not only ruin those engaged in trade with such states, but cause much discomfort to the nations of the world by the exclusion of necessary products found in no other market. "The decree of closure of certain named ports of Colombia contains no intimation of an ulterior purpose to resort to a proclaimed and effective blockade. It may, therefore, be premature to treat your announcement as importing such ulterior measures; but it gives me pleasure to declare that the Government of the United States will recognize any effective blockade instituted by the United States of Colombia with respect to its domestic ports not actually subject to its authority. This Government will also submit to the forcible repulsion of vessels of the United States by any embargo which Colombia may lay upon ports of which it has possession, when it has power to effect such repulsion. But the Government of the United States must regard as utterly nugatory proclamations closing ports which the United States of Colombia do not possess under cover of a naval force which is not even pretended to be competent to constitute a blockade. "As early as April 24, 1861, when Mr. Lincoln's administration had only been in office six weeks, but when it was already apparent that the secession movement then begun would speedily have possession of most of the ports of the Southern States, Mr. Seward addressed a circular to the ministers of the United States in Europe, in which he declared the adhesion of the United States Government to the rule that 'blockades, in order to be binding, must be effective; that is to say, maintained by forces sufficient really to prevent access to the coast of the enemy.' (U. S. Dip. Corr., 1861, 34.) "When President Lincoln proclaimed, as he did on the inception of the civil war, a blockade of the Southern coast, the proclamation was followed by an announcement to France and to England that the blockade would be effective in the above sense; and it is important to observe that, enormous as were the profits to be gained by blockade-running, and doubtful as was at least the friendliness of certain European courts towards the United States, not one of the maritime powers of Europe complained that the blockade was not effective. "Congress, it is true, adopted a few weeks later a municipal statute, as herein before stated, authorizing the President, at his discretion, to close the Southern ports; but as to this measure the following observations are to be made: "(a) The closure was to be a domestic act, incidental to the blockade, the permanency of which as a general measure during the civil war the President had already announced to foreign sovereigns. "(b) It was to be effected in part by land forces. "(c) Its institution was conditional upon the discretion of the Presi dent, which discretion was never exercised. "It is as thus qualified and explained that Mr. Seward refers, in his correspondence with Mr. Adams and Lord Lyons, to the statutes in question, but it is impossible not to see, in Mr. Seward's references, a latent appeal of great force against the action of those European powers which, at the beginning of this century, did not hesitate to convulse and devastate the world by decrees and orders in council closing ports they did not possess. They did this in the face of vehement and almost supplicatory remonstrances from the United States, and forced this Government, then young in the family of sovereignties, and naturally desirous of peace with all, most reluctantly and at great cost of blood and treasure to undertake, as at last the sole maritime contestant, wars against Great Britain and France to maintain the freedom of the seas and the invalidity of paper blockades." Mr. Bayard, Sec. of State, to Mr. Becerra, Apr. 9, 1885. MSS. Notes, Colombia; Fauchille (Blocus Maritime, 155), while pushing in this, as in other respects, his vindication of neutral rights to their extreme limit, holds that the United States accept the position of Sir W. Scott that a blockade is not broken by an accidental dispersion of the blockading squadron through stress of weather. "In 1800, the United States held that a blockade was maintained notwithstanding a temporary dispersion of the blockaders by storm (Mr. Marshall to Mr. King, September 20, 1800), and the same view was enforced by Mr. Mason in his instructions to the naval commanders of December 24, 1846." He admits, also, that the same position is taken by Phillimore, iii, § 294; 1 Kent, 365; and other high authorities. But he proceeds to cite the opinion of Ortolan (ii, 314, and also Deane on Blockade, 54) to the effect that while a blockade is not vacated permanently by such a dispersion, it is suspended while the dispersion continues, so that vessels entering during such an interval are not liable to be seized for blockade-running. He proceeds to argue that the preponderance of reason and of authority is with the position that when a blockading force is dispersed by stress of weather or by other causes, the blockade is broken, and cannot be renewed except by notice, as if it were a new blockade. A blockade may be made effectual by batteries ashore as well as by ships afloat. In the case of an inland fort, the most effective blockade would be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels attempting to enter. The Circassian, 2 Wall., 135. The fact that the master and mate saw no blockading ships off the port where their vessel was loaded, and from which she sailed, is not enough to show that a blockade, once established and notified, had been discontinued. The Baigorry, ibid., 474. A blockade, once regularly proclaimed and established, will not be held to be ineffective by continual entries in the log-book, supported by testimony of officers of the vessel seized, that, the weather being clear, no blockading vessels were to be seen off the port from which the vessel sailed. The Andromeda, ibid., 481. Where, in time of war, a foreign vessel, availing herself of a procla mation of the President of May 12, 1862, entered the port of New Orleans, the blockade of which was not removed, but only relaxed in the interests of commerce, she thereby assented to the conditions imposed by such proclamation that she should not take out goods contraband of war, nor depart until cleared by the collector of customs according to law. U. S. v. Diekelman, 92 U. S., 520. (4) OBSTRUCTIONS MAY BE TEMPORARILY PLACED IN CHANNEL OF ACCESS. § 361a. The obstructing by a blockading squadron of the blockaded port, leaving the main channel open, is not inconsistent with international law. Mr. Seward, Sec. of State, to Mr. Dayton, Feb. 19, 1862. MSS. Inst., France. Lord Lyons's protest against the use of stone in the blockading of Charleston, is limited to the element of permanency, no objections being made by him to obstructions which could be removed after the termination of hostilities. (Archiv Dip., 1862, ii, 80.) Fauchille (Blocus Maritime, 144 ff.) dissents, not very forcibly, from this view, although it was acquiesced in at the time by the French Government. "On February 14, 1862, in the House of Lords, Lord Stanhope called the attention of Lord John Russell to the report that a second squadron of ships, laden with stone, was to be sunk by the Government of the United States in the Maffitt's Channel of Charleston Harbor. The sinking of large ships, laden with stone, on banks of mud at the entrance of a harbor, could only end in the permanent destruction of the same, and such was not justified by the laws of war. It was not an act of man against man, but against the bounty of Providence, which had vouchsafed harbors for the advantage and intercourse of one people with another. On this ground we (the British) were well entitled to protest against the act. Lord John Russell approved of the protest, and considered the destruction of commercial harbors a most barbarous act. He stated that the French Government took the same view, and were decided to remonstrate with the United States Government. "On February 28, Lord John Russell informed the House that he had received a dispatch from Lord Lyons, to the effect that Mr. Seward stated there had not been a complete filling up of Charleston Harbor, and that no more stone ships would be sunk there." 2 Halleck's Int. Law, (Baker's ed.), 23. "I regret that a report which has been communicated to the Department obliges me to request that you will make a strong representation in the premises to the Peruvian Government, should you find on inquiry that the report is well founded. This report is that the Peruvians have made use, during the present war with Chili, of boats containing explosive materials,' which have in some instances been sent adrift on the chance of their being fallen in with by some of the Chilian blockading squadrons.' How far the case of the launch to which you refer in your No. 183, which was loaded with concealed dynamite, comes within the description of cases mentioned, the Department has not the requisite data to determine. "It is sufficiently obvious that this practice must be fraught with danger to neutral vessels entitled to protection under the law of nations, and that in case American vessels are injured thereby, this Government can do no less than hold the Government of Peru responsible for any damage which may be thus occasioned. "There is no disposition on the part of this Government to act in any wise nor in any spirit which may be construed as unnecessarily critical of the methods whereby Peru seeks to protect her life or territory against any enemy whatsoever; but it will appear, I think, to the high sense of propriety which has in times past distinguished the councils of the Peruvian Government, and which without doubt still abides therein, that in case it is ascertained that means and ways so dangerous to neutrals as those adverted to have been for any reason suffered to be adopted by her forces, or any part of them, they should be at once checked, not only for the benefit of Peru, but in the interest of a wise and chivalrous warfare, which should constantly afford to neutral powers the highest possible consideration." Mr. Evarts, Sec. of State, to Mr. Christiancy, Jan. 25, 1881. MSS. Inst., Peru. "On the 10th of January 1 was informed by the British minister, Sir Harry Parkes, and the German chargé d'affaires, Count Tattenbach, that dispatches had been received from their consuls at Canton saying that the Chinese authorities were preparing to obstruct the water ap proaches to Canton, and that the effect of these obstructions would be to imperil, if not to prevent, navigation. The German consul reported that Whampoa would be totally blocked.' "I telegraphed Mr. Consul Seymour for information, and his reply I inclose. Mr. Seymour, as you will observe, said that there would be 'serious obstructions without equivalent benefits.' "Two questions arose which in the opinion of the legation required immediate attention. "The first was that by the terms of the treaty of Tien-Tsin, 1858, concluded between China and the United States, in Article XXVI, United States vessels, in the event of war between China and other powers, were to have free access and egress in the open ports. 'It is further agreed,' says the treaty, 'that in case, at any time hereafter, China shall be at war with any foreign nation whatever, and should for that cause exclude such nation from entering her ports, still the vessels of the United States shall not the less continue to pursue their commerce in freedom and security, and to transport goods to and from the ports of the belligerent powers,' etc. "The second was that the Chinese authorities, in a time of peace, were performing a belligerent act directed against the commerce of friendly powers, an act which if permitted at Canton would stand as a precedent for closing every port in China. |