482 ENGLISH MAGISTRATES AND MINISTERS NOT INFALLIBLE.

whether Englishmen have done "any acts in derogation of their duty, as subjects of a neutral sovereign, in the said contest, or in violation, or in contravention of the law of nations" in promoting or not prohibiting the “fitting out, arming, or equipping any ship or vessel, to be employed as a ship of war, privateer, or transport, by either of the said contending parties?"

And, if so, whether such acts constitute an offense under the statute, the law of nations, or the royal proclamation? and, if not, what immunity, if any, was extended to confiding neutrals by that proclamation?

Diplomatic negotiations have, as yet, resulted in nothing but the Johnson Protocol, or Convention, and, whether that be rejected or ratified, the claims growing out of the ministerial precipitation and negligence, or incuria, are still in abeyance, and likely to remain so for future settlement.

But a more pointed reference to this topic may be made under the chapter on neutrality. Should it then be resumed, it may admit of a more extended discussion.

The history of maritime warfare shows that England was seldom a neutral, but generally a belligerent, actively participating as a combatant, either principal or ally. In the wars subsequent to the Treaty of Utrecht in 1713, particularly those of 1744, 1756, 1776, 1793, 1812, and 1854, whether with French, Dutch, Dane, Russian, or American, England was a belligerent, and a declared neutral, temporarily, in 1825, as between the Turk and Greek, and not strictly in 1861, as between the United States and the insurgents in the American Rebellion. England's declared neutrality in 18252 was, indeed, 1 Since rejected with much unanimity by the United States Senate. 2 Vide Proclamation Geo. IV. 1 Hagg 400. Appendix B.

THE QUEEN'S PROCLAMATION OF NEUTRALITY 1861. 483

an unfortunate precedent. In 1827 it became converted into an armed intervention, by treaty with France and Russia. This triple alliance was not remiss in discovering its intent; and in the harbor of Navarino, while the combined Turkish and Egyptian fleets were formed in the line of a crescent, devised a mode of provoking a collision, and, in the combat which ensued, the allied naval force proximately annihilated the whole of the combined fleet. And such was the result of the proclaimed neutrality of 1825. The precedent certainly is not favorable.

It is hoped the declared neutrality of 1861 may ultimately terminate more auspiciously. To avert the illeffects and possible consequences of hasty recognition, administrative remissness, and judicial misconstruction, the manifest predilections of Lord John Russell should be disregarded; his avowed political prejudices disavowed; negotiations entered upon with the high and honorable purpose of mutual and satisfactory adjustment; and the problem, now so seemingly complicated, may be speedily solved by expert diplomats in a manner alike creditable to both parties, and conducive to prolonged peace and undisturbed amicable relations.

An approximation only to the pecuniary loss of individuals, whether rich merchants or poor mariners, is practicable; but the damage inflicted upon the State, by a needless sacrifice of precious and valuable lives, through a prolonged warfare, caused by a professed neutral, is inappreciable. Without seasonable and satisfactory reparation to the wounded honor of the nation and its sense of justice, the later precedent may become equally as unfortunate as the former.

With such a history and experience, therefore, the as.

484 NEUTRAL DUTY A NOVELTY TO BRITISH STATESMEN.

sumption of the attitude of neutrality by England is so novel and unusual, that it is not at all surprising that neither the obligations of belligerents towards neutrals, nor the strict rights of neutrals as against belligerents, were likely to be so well appreciated or definitely understood by English lawyers and statesmen, as they might otherwise have been understood and appreciated by them, had the antecedent history and maritime experience of Great Britain been different.

On the subjects of blockade, capture, contraband, the English, as well as the American authorities, are very numerous; also on licenses, the natural product of the policy of the British navigation laws, and their issue, made more necessary by the French Decrees and British Orders in Council. Although the cases on neutrality may not be so numerous, yet they are quite as precise and decisive.

In England, the late leading case on blockade is reported in the recently obtained second volume of Spinks, 113, The Franciska; and, in the United States, the leading decision is reported in 2 Black, 635, The Prize Cases.

The former exhibits the English doctrine as held by the Admiralty Court in the time of the Russian Crimean War; the latter presents the American view as taken by the U. S. Supreme Court in reference to the American Rebellion. A synopsis of the points determined by the two different tribunals will be presented for general information.

In the 2 Spinks, the points established seem to be, that blockade is a high act of sovereignty, and cannot be imposed by a commander, unless invested with authority for the purpose. On distant stations he is pre

BLOCKADE AND ENGLISH CASES.

485

sumed to be so invested; in Europe it may be different. Subsequent adoption by his own government legitimates the act of a commander.

It is necessary, to the due maintenance of a blockade, that ingress and egress cannot take place without imminent risk of capture. The testimony of a commander-in-chief is the best, and sometimes the most conclusive evidence as to the sufficiency of the blockading force. The legality of a blockade is not affected by the distance of the blockading force, which may be at any distance convenient for closing the port blockaded. A blockading squadron would invalidate a blockade by capriciously permitting ingress or egress, and by an unjustifiable absence from the locality.

A blockade having been recently established, neutrals may come out with a cargo laden before the blockade, or in ballast.

Occasional elusion of the blockading force does not invalidate the blockade; it is violation, but not invalidation.

A blockade de facto needs no justification. The subsequent publication of a gazette cannot affect the legality of a blockade de facto previously established. Early notification is desirable, but not essential to the validity of a blockade de facto.

One belligerent cannot concede to another, nor assume to himself a privilege of commerce prohibited to neutrals. A grant of license, which might have such an effect, would invalidate a blockade.

The acts of a subordinate officer cannot affect the character of a blockade, though an individual claimant might plead such acts as his own special justification. Notice to neutrals of a blockade de facto is indispen

POINTS RAISED AND SETTLED IN CASES

486 sably necessary; but whatever brings it credibly to their knowledge, is sufficient. Notoriety precludes neutrals from approaching the port on any pretense whatever. Knowledge of the blockade, and not the mode in which such knowledge was communicated, justifies cap

ture.

Neutrals are bound to make inquiry, and cannot plead ignorance which is willful. Ignorance, for which the neutral government is responsible, is no excuse to the individual.

When the blockade is notorious, and no special ignorance is proved, the ship must be condemned. In the Russian War, the blockades of Riga and the coast of Courland were sufficiently notorious to throw the onus of proving his ignorance on the neutral merchant in each case.

The treaties with Sweden of 1661, and with Denmark of 1670, confer some specific privileges upon those countries, and remain unrevoked. Revocation of one treaty by another can only be inferred when the two cannot reasonably coexist.

The interpretation of treaties belongs to the Court of Admiralty, but their variation to the government. The Franciska, 2 Spinks, 113.

When there is no conflicting testimony as to the suf ficiency of a blockading force, that of the commanderin-chief is conclusive. A blockading officer is not bound to detain every vessel approaching the blockaded port; in some cases he should only warn off.

Efficiency of a blockade must not be judged alone by the numbers which evaded the blockading force. The blockade would be invalidated, if it were proved that the force was unjustifiably absent from its locality, and