Mr. Burnley to Mr. Seward
To the first clause of the proclamation there can be no great objection by foreign powers, since its operation is restricted to citizens of the United States and domiciled aliens, the latter class being substantially, in the absence of treaty stipulations distinguishing them, treated as the citizens or subjects of the country.
But the second clause seems to be of a very grave character, and wholly inadmissible as attempting a dangerous innovation upon the established principles of international law.
The Supreme Court, in all the prize cases, has founded its judgments of “lawful prize” on the recognized existence of a war of course between two belligerents. On no other base could the decision have been maintained, and it is plainly announced in the first of them.
Trade with an enemy of the United States (excluding the case of domiciled [Page 100] aliens who cannot be considered neutrals) can only be interrupted according to the laws of nations, and incurs only the penalties imposed by that law.
The mode of interruption may be by blockade actual, not merely declared or by legislation, closing certain ports if not inconsistent with treaty stipulations.
But nothing is better settled than that, as in this case, the sole penalty as to neutrals of violating the blockade is the capture and condemnation of the vessel and cargo (one or both) before the completion of the voyage.
If the blockade be successfully run, and the voyage be ended, it was never heard of that a subsequent seizure of the vessel on that account could be justified.
The capture and condemnation are not in the nature of punishment, as understood in the municipal law, but as the exercise of a purely belligerent right.
Nor in the case of lawful capture during the voyage are the persons engaged and actually found on board, liable to punishment or other molestation than detaining them reasonably as witnesses.
But the proclamation assumes to make every British owner of a blockade-runner, or of the cargo, liable to a personal punishment.
He may be ordered out of the country summarily if he was part owner of a vessel so employed three years ago, and may be imprisoned indefinitely. If he fails to go away he may be arrested, committed to a military prison, and detained indefinitely, with no right of trial, and no conceivable offence alleged against him, and no hope of release until the will of the President may direct it.
This clause of the proclamation seems wholly unwarranted by any respectable precedent, or any recognized principle of international law.