"I was not disposed to lay much stress upon the first of these propositions, or even to make it a matter of serious debate with the Government, without asking for your special instructions. To be sure, the stipulations of the treaty are plain. It was made, however, in 1858. Since then the methods of offensive and defensive warfare have been revolutionized. The United States, during the rebellion, saw fit to obstruct the channels in Charleston Harbor by sinking ships laden with stone, to secure an effective blockade. Germany, during her latest war with France, protected her Baltic ports with torpedoes. I should have felt some embarrassment in seeking to persuade the yamên that what Germany and the United States regarded as honorable warfare could not be permitted to them. "At all events, I should have deemed it wise, before making any representation to the yamên, to have asked the Department for further instructions as to how far my Government was disposed to assert our rights under the article I have quoted. "As to the second proposition, I could see no doubt as to my immediate duty. The situation was this: The viceroy of two provinces, a local official, upon his own responsibility, without asking the orders of his Government and without any communication to the foreign powers of such a contemplated act, proposed to do what could only be regarded as an extreme and supreme measure of war, namely, to close a port open to us by the treaties. This was to be done when China was at peace, and before any declaration of war, or even an intention so to declare, had been published. If the obstruction of Canton, under these circumstances, was permitted, without a prompt and decisive protest, there would be no reason why this or a subsequent Government, the Canton viceroy, or the ruler of other provinces, should not obstruct and close every port in China. And while it might be said that motives of selfinterest and the natural desire of the Chinese to profit out of foreign commerce would render such apprehensions improbable, yet one can never cease to remember that in China there is a powerful and what some observers regard a dominant anti-foreign sentiment, which would regard such a measure as excluding all foreigners from the Empire as an act of the highest patriotism. "The question was one which under ordinary circumstances I should have submitted to the diplomatic body. But on account of the relations between China and France, I believed, on reflection, that separate action, and especially in my own capacity as the American representative, would be the most effective in securing the ends of peace. With this view I requested an interview with the ministers of the yamên. The result was a long conversation, a report of which is inclosed. "It would be superfluous to repeat what is written with so much detail in this report. "Although we could not induce the yamên to give us a formal withdrawal of their policy, nor to make any promise that what had been done at Canton might not be repeated at Shanghai and Tien-Tsin, the practical effect of our joint action was to arrest the obstructions proposed in Canton, and to show the Government that we could not permit what had been attempted as a precedent. I did not feel myself at liberty to go beyond an earnest and at the same time a friendly protest. "The point at issue was so important, and the possible action of the yamên so uncertain, that I felt bound to submit it without delay to the Department. This was also done by the British legation. The dispatch of Sir Harry Parkes to Lord Granville, and his lordship's answer, will be found as inclosures. "I also requested Admiral Davis, now at Shanghai, to have some skilled officer examine the nature of the proposed obstruction. Such a report would have a technical value, as that of a professional expert, apart from the judgment of the consular gentlemen upon whose information we act. "The correspondence is herewith submitted to the Department. I am persuaded that you will agree with me that, considering, on the one hand, our rights under the treaties, and, on the other, the practical embarrassments which confronted China, wishing under no circumstances to appear harsh and stern, the position taken by the yamên made our duty clear; that this duty was to protest against a grave violation of treaties and of international law. I endeavored to do so in a way that would show the minister that no nation, under existing fomrs of civilized society, could venture upon deeds of this nature without doing herself in the end a grave injury; that treaties and international law were made for the common welfare of mankind, and that in their sanctity China had no small share. "To have overlooked the action of the Canton viceroy, to have permitted a precedent which at any time, under the reactionary influences possible in China, would have fatally wounded every foreign interest, would, in my opinion, have been a serious neglect of duty. I trust that the action of the legation will meet with your approval." Mr. Young, minister to China, to Mr. Frelinghuysen, Feb. 11, 1884. MSS. Dispatches China; For. Rel., 1884. "Your No. 350, of the 11th of February last, concerning the threatened obstruction of the Canton River by the viceroy of the province, as a defensive war measure, has been received and read with much attention. "The report of your conference with the yamên on the 14th of Jan uary presents very clearly the embarrassments which attend any attempt to make clear to the Chinese Government the relations of the treaty powers to each other in regard to this question. "In your interview with the yamên you closely anticipated the tenor of my telegraphic instruction of the 22d of January. Had that telegram been before you it might possibly have furnished you with a reply to an argument frequently put forth by the ministers of the yamên, that the neutral powers should show their friendship for China by preventing France from attacking China without proper previous notice of intention to do so. This is, as you will have seen, almost exactly the ground taken by the United States. "The real issue seems to have been very succinctly put by Chang-tajên in the interview of the following day with Sir Harry Parkes. 'If.' said he, China could be certain that France would be guided by the laws of war in her future action, and an authoritative assurance could be obtained from any quarter that France would not attack (the open ports) without due notice, Chang-ta-jên would promise, on his own responsibility, that the obstructions at Canton should be removed.' "The gravity of the question seems to have been removed in a great measure by the assurance given by the yamên that a channel of over 100 feet in width would be left in both channels for the convenience of steamers and sailing vessels, an assurance which Chang-ta-jên seems afterwards to have still further extended to 150 feet, as appears from the telegram from the British consul at Canton to Sir Harry Parkes of January 26. "Even, however, under this favorable modification, the obstruction to the channel at Canton and Whampoa can only be tolerated as a temporary measure, to be removed as soon as the special occasion therefor shall have passed, and under no circumstances to be admitted as precedent for setting obstacles to open navigation at the treaty ports in time of peace, under pretext of being intended for ultimate strategic defense in the contingency of future war." Mr. Frelinghuysen, Sec. of State, to Mr. Young, Apr. 18, 1884; ibid. "Your No. 141 is before me, and brings to the Department, with much clearness, a question of great interest. It is unquestionable that a belligerent may, during war, place obstructions in the channel of a bellig. erent port, for the purpose of excluding vessels of the other belligerent which seek the port either as hostile cruisers or as blockade-runners. This was done by the Dutch when attacked by Spain, in the time of Philip II; by England when attacked by the Dutch, in the time of Charles II; by the United States when attacked by Great Britain, in the Revolutionary War and in the war of 1812; by the United States during the late civil war; by Russia at the siege of Sebastopol; and by Gen many during the Franco-German war of 1870. But while such is the law, it is equally settled by the law of nations that when war ceases, such obstructions, when impeding navigation in channels in which great ships are accustomed to pass, must be removed by the territorial authorities. Such is the rule, apart from treaty; and it was implicitly admitted by Mr. Seward, when, in replying to the remonstrances by the British Gov. ernment on the placing by the blockading authorities of obstructions in the harbor of Charleston, he stated that these obstructions were placed there merely temporarily. Were there any doubt about this question, which I maintain there is not, it would be settled by the provisions of our treaties with China, which virtually make Canton a free port, to which our merchant ships are entitled to have free access in time of peace. You are therefore instructed to make use of the best efforts in your power to induce the Chinese Government to remove the obstruction in the Canton River, which, as you state, operate to close the port of Canton to the merchant vessels of the United States. In sending to you this instruction, I affirm the instructions of Mr. Frelinghuysen to Mr. Young, No. 267, dated April 18, 1884, printed in the Foreign Relations of that year." Mr. Bayard, Sec. of State, to Mr. Denby, July 28, 1886. MSS. Inst., China. 385 II. ENFORCEMENT OF. (1) VESSELS SEEKING EVASION OF, MAY BE SEIZED. § 362. The rule" which subjects to capture vessels arriving at a port in the interval between a removal and a return of the blockading forces," is a deviation from international law. Mr. Madison, Sec. of State, report of Jan. 25, 1806. MSS. Dept. of State. For correspondence with Brazilian Government in 1827, respecting the exclusion of neutral ships-of-war from blockaded ports, see Brit. and For. St. Pap., 1827-28, vol. 15, 1118. In Commodore Biddle's letter of November 11, 1827, to the Brazilian admiral, he states "that blockades have never been deemed to extend to public ships. Great Britain almost perpetually at war, and numerically superior at sea to any other nation, never for a moment pretended that neutral ships-ofwar could be affected by blockades. During several years of the war in Europe, the Government of the United States maintained its diplo matic intercourse with France exclusively by means of its public ships entering the blockaded ports. In 1811, in the U. S. S. Hornet, I my self went into Cherbourg, then blockaded by a British squadron; was boarded as I went in by the blockading squadron, but merely for the purpose of ascertaining our national character." The Brazilian admiral in reply stated that by a recent decision of the British Cabinet, "vessels-of-war could not enter blockaded ports, and such has continued to be the practice of the English." It is not inconsistent with the principles of international law for a neutral sovereign to send an armed cruiser to watch a blockaded coast, so as to see no injustice is done to his own merchant vessels, and that they may be prevented from any irregular proceedings. Mr. Van Buren, Sec. of State, to Mr. Azambigo, Mar. 8, 1831. MSS. Notes, "On this point the law of nations cannot admit of doubt. Its principles are announced more clearly than I could express them by Sir William Scott, in delivering the opinion of the court in the case of the Vrouw Judith (1 Robinson's Admiralty Reports, 151), that eminent publicist says: Now, with respect to the matter of blockade, I must observe that a blockade is just as much violated by a vessel passing outwards as inwards. A blockade is a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to sus pend the entire commerce of that place; and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is that, having already taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule which this court means to apply, that a neutral ship departing, can only take away a cargo bona fide purchased and delivered before the commencement of the blockade; if she afterwards takes on board a cargo, it is a frauduleut act, and a violation of the blockade.' "But the very question arising in the case of the Jeune Nelly has been judicially decided, after full argument, by the United States district court for Louisiana, a prize court of competent jurisdiction, and I now have the honor to transmit you a copy of the opinion of the learned judge, extracted from the New Orleans Picayune, of the 14th December, 1847." Mr. Buchanan, Sec. of State, to Mr. Poussin, Jan. 17, 1849. MSS. Notes, France. The carrying letters or passengers to blockaded ports by neutral war vessels, entering by courtesy therein, is an infraction of neutrality. Mr. Seward, Sec. of State, to Lord Lyons, Oct. 4, 1861. MSS. Notes, Gr. Brit. As to recapture of blockade-runner Emily St. Pierre, see Brit. and For. St. Pap., "The fact of clearing out for a blockaded port is in itself innocent, unless it be accompanied with knowledge of the blockade. The clearance, therefore, is not considered as the offence; the persisting in the intention to enter that port, after warning by the blockading, is the ground of the sentence. * "Vattel, b. 3, s. 117, says, 'All commerce with a besieged town is entirely prohibited. If I lay siege to a place, or even simply blockade it, 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.' The right to treat the vessel as an enemy is declared, by Vattel, to be founded on the attempt to enter, and certainly this attempt must be made by a person knowing the fact." Marshall. C. J.; Fitzsimmons v. Newport Ins. Co., 4 Cranch, 198. A vessel sailing ignorantly for a blockaded port is not liable to condemnation under the law of nations. Yeaton v. Fry, 5 Cranch, 335. No neutral can, after knowledge of a blockade, lawfully enter or attempt to enter the blockaded port; and to do so would be a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation. McCall v. Marine Ins. Co., 8 Cranch, 59. A vessel sailing from a neutral port with intent to violate a blockade is liable to capture and condemnation as prize from the time of sailing, though she intend to call at another neutral port, not reached at time of capture, before proceeding to her ulterior destination. The Circassian, 2 Wall., 135. |