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Happily all danger of hostile collision on this subject has been Chap. IX. avoided. It is the earnest hope of Her Majesty's Government that similar dangers, if they should arise, may be averted by peaceful negotiations conducted in the spirit which befits the organs of two great nations.
"I request you to read this despatch to Mr. Seward, and give him a copy of it.
"I am, &c.
Without entering into a discussion of this case, or criticising the arguments on either side, I shall state the questions to which it appears to have given rise, and the situation in which it left them. These questions are two-one, raised directly by the act of Captain Wilkes, which required and received a decision; the other, raised hypothetically by the American Government, which the close of the controversy left open.
1. Is it lawful for a belligerent, exercising his right of visit and search on the high seas, to take persons, not serving the enemy in a military capacity, out of a neutral ship, not judicially proved to have forfeited the character of a neutral? All opinions concur that this is not lawful.
2. Does a neutral ship forfeit that character and expose itself to condemnation by conveying, as passengers, from one neutral port to another, persons going as diplomatic agents of the enemy to a neutral country? The American Government maintains the affirmative of this question, if not in all cases, at least in a case where the agent has not yet acquired an official character, and the community he is commissioned to represent has not been recognized as independent. It insists on the affirmative even where the ship is a regular packet, carrying mails, goods, and passengers, and making her regular voyage from and to her accustomed ports, the persons themselves taking their berths as ordinary passengers, and coming on board in the usual way. The British Government maintains the negative,
Chap. IX. and other European Governments appear to be of the same opinion, which is, I think, the sounder and more reasonable.
These two questions are really part of a larger subject, the outlines of which are as yet but vaguely and imperfectly drawn. The following propositions, though condensed, will be intelligible to lawyers. I state them with diffidence; but they are, I believe, not far from the truth.
1. A neutral ship, conveying persons in the enemy's employment, whether military or civil, is not liable to condemnation as prize, unless, on a consideration of all the circumstances, the Court comes to the conclusion that she is serving the enemy as a transport, and so as to assist substantially, though not perhaps directly, his military operations.
2. If it be proved that the ship, though owned by a neutral, was actually hired for such a purpose by the enemy, it is immaterial whether the persons conveyed are many or few, important or insignificant, and whether the purpose of the hiring was or was not known by the master or owner. I understand by hiring, any contract which gives the actual control and disposal of the ship to the enemy.
3. If, on the other hand, such a hiring by the enemy be not shown, it then becomes necessary to prove that the service performed was in its nature such as is rendered by a transport. The number of the persons conveyed, the nature of their employment, their importance, their immediate or ultimate destination, may then become material elements of proof; and there should be evidence of intention, or of knowledge from which intention may be reasonably inferred, on the part of the owner, or his agent, the master.
4. It is incorrect, therefore, to speak of the conveyance of such persons as if it were the same thing as the conveyance of "contraband of war," or as if the same
rules were applicable to it. It is a different thing, and Chap. IX. the rules applicable to it are different.
5. The fact that the voyage is to end at a neutral port is not conclusive against condemnation, but is a strong argument against it, and would indeed be practically conclusive in most cases, especially if coupled with proof that the ship was pursuing her ordinary employment.
6. It is not lawful, on the high seas, to take persons, whatever their character, as prisoners out of a neutral ship which has not been judicially proved to have forfeited the benefit of her neutral character.
Commencement of the Blockade.-Peculiar Character of the Southern Coast.-Effects of this on the Blockade.-Questions which arose.— Observations.
WE have seen that a blockade of the Southern ports was the first object which engaged the attention of the Federal Government, that the most strenuous exertions were made to collect as quickly as possible a blockading force, and that the task was an arduous one, the small navy of the United States being at that time chiefly dispersed in distant seas, whilst of the few ships at home a considerable proportion were unfit for service.
The extent of coast covered by the two Proclamations of the 19th and 27th of April was immense; but its conformation and character, whilst they added at some points to the difficulty of blockading it effectually, rather diminished that difficulty on the whole. The Southern rivers, descending from the slopes of the lower Alleghany ranges, flow seawards across a level plain chiefly composed of fine sand, the breadth of which is from fifty to a hundred miles or more, sterile for the most part, but cultivable where it is mixed with mould, and containing, with large tracts of forest and swamp, patches of extremely fertile soil. The plain, as it approaches the sea, becomes intersected by smaller streams, which are fed by the inland swamps; it is indented by creeks and bays, and threaded by intricate channels opening into broad lagoons of still water.
Narrow banks of hard sand, pierced at considerable Chap. X distances by shallow inlets, skirt the shore for hundreds of miles; whilst elsewhere it is fringed by numerous islands, scarcely rising above the tide, some of which produce a long-stapled cotton, the finest and most valuable in the world. Every river has a bar at its mouth. There are many shoals; and local names, such as Cape Lookout and Cape Fear, bear witness here and there to the dangerous character of the navigation. In short, the coast is for a great part of its length practically unapproachable: it has many small harbours, but very few capable of admitting large ships, and these more or less difficult of access, especially at low tide; on the other hand, it has long reaches of inland navigation, opening at intervals into the sea, and easily traversable by vessels of light draught.
The two Proclamations, though they gave notice to all the world that a blockade was about to be instituted, did not convey, in the technical sense of the phrase, a "notification" of the existence of a blockade. At each particular port or place on the coast the blockade began at, and not before, the time when an adequate blockading force arrived on the spot; it then took effect as a blockade de facto, continued as long as an adequate force was maintained there, and ceased when it was withdrawn. It need hardly be said that any period allowed for the egress of neutral ships from a blockaded port could only be fairly counted from the time at which the existence of the blockade was, or might reasonably be deemed to be, known at the port. Where the blockading force is stationed at a considerable distance from the port itself -as may be the case when it lies off the mouth of a navigable river-this observation may become material.
The announcement of the blockade naturally created much anxiety amongst British subjects resident in America and trading from or with the Southern ports; and, on the 29th April, Lord Lyons obtained an interview