Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress, Part II
Mr. Tassara to Mr. Seward
The undersigned, minister plenipotentiary of her Catholic Majesty, has the honor of informing the honorable Secretary of State of the United States that he has received despatches from the commanding general of the Spanish squadron in the Pacific, General Pareja, according to which, in consequence of the declaration [Page 580] of war against Spain by the government of Chili, the said General Pareja, acting from instructions, had declared the ports of that republic blockaded from the 24th of September.
The undersigned, judging that the United States will remain neutral, hopes the honorable Secretary, on his part, will make the proper declarations, and give suitable orders to his authorities, to prevent the issue of letters of marque and reprisal, or the arming of cruisers in any port of the United States, or the embarcation of articles contraband of war, or the commission against Spain of any other act considered by the common law of nations as contrary to neutrality.
Enclosed the honorable Secretary will find a copy of the instructions given for the blockade.
The undersigned takes this new occasion of offering to the honorable Secretary of State of the United States the assurances of his distinguished consideration.
Hon. Secretary of State of the United States, &c., &c., &c.,
[Translation.]
Headquarters of the Pacific Squadron.
Instructions which the general commanding the squadron issues to be strictly observed by the commanders of the vessels which compose it.
The republic of Chili being declared in a state of war with Spain, is completely responsible for the consequences which may grow out of this state of things. For such reason, and that your action with the vessel under your command may be best adapted for hostilities against Chili, and at the same time avoiding any injury to neutral nations who carrion trade with that republic, I pass on to lay down for you the rules which must be observed, and are most adequate for attaining both objects:
1. After this date you are authorized to chase and capture any vessel of the Chilian republic, whether of war, privateer, or trade; whether at sea or in any port of said republic.
2. In the same manner you are authorized to take possession of the cargoes on board of Chilian merchant vessels whenever those cargoes do not belong to a neutral. But you may make prize of those cargoes, although they may be neutral property if composed of articles contraband of war; and of others which are not so, you will only make prize of that illegal portion of the cargo, leaving the other at liberty, although it may belong to the same owner with the illegal portion.
3. You are also authorized to detain and take any neutral vessel which may carry, intended for the enemy, or belonging to the enemy, official despatches, land or naval forces, or equipage for the vessels of such enemy.
4. You are also authorized to make prize of every cargo which may be found on board a neutral vessel, and be composed of articles contraband of war, it being understood that the vessel goes free after being lightened of the unlawful cargo. If part of the cargo should be of lawful trade that part will remain free, although it may belong to a citizen or citizens of Chili, because a free vessel also makes free the lawful merchandise.
5. You are also authorized to capture those vessels whose neutrality may not appear to be established by the proper documents.
6. You may detain every neutral vessel which, by the construction of her hull, by her distributions, or by other circumstances of special nature, leave no doubt of her having been constructed for warfare, although she may appear as a trader and her cargo be not contraband of war, because it may happen that such vessel may have been built by private enterprise for the enemy, or been despatched from a neutral port in order to be sold to the enemy, because in both cases such vessel must be classified as contraband of war, as undoubtedly an instrument therefor.
7. Those vessels are to be considered as suspicious, and will be subject to search, which carry double sets, or, apparently, false papers. Those which may be without the papers called for by the regulations of the country of their neutrality, and those which do not heave to when notified to do so by any vessel of the squadron maintaining the blockade, as also those which obstruct search of such parts of the vessel in which it is suspected there may be contraband of war, these suspected vessels shall be treated as hostile unless they in some way succeed in removing the suspicions which may fall upon them. You will take good heed that the examination of ships’ papers is of the greatest importance, because these papers must be the basis in which to establish the validity or invalidity of the capture.
8. Neutral merchant vessels sailing under convoy of a vessel or vessels of war that are neutral may not be visited, the written declaration of the commander of the convoy being sufficient to show that they do not belong to the enemy, nor carry contraband of war. If, [Page 581] notwithstanding this declaration, you should believe that the good faith of that officer may-have been deceived you will make it known to him, that he alone may examine the vessel or vessels on which suspicion falls.
9. In case of meeting any cruiser under the Chilian flag you will capture her and treat her as any other trading hostile ship, unless, on examination of the papers, it appear that she has not the requisites for acting as a cruiser, because, in that case, she must be considered a pirate. Those documents must be, first, a commission to cruise issued in her favor by the government of her country, in which are to be set forth the time and localities in which she may act hostilely to the enemy; second, all the corroborating circumstances necessary to demon strate the nationality, the vessel being, besides, manned in the greatest part by subjects of the nation to which she belongs.
10. You will not obstruct the coast fisheries of the enemy, even within the territorial waters—that is to say, to the limits of the longest reach of artillery of the squadron, discharged at low-water line from the edge of the shore. But you will take care this concession does not give origin to abuses which may prejudice the blockade or operations that may be undertaken.
11. That a blockade may be effective, and consequently be respected, it is indispensable that it be sustained by sufficient forces to make it highly dangerous to enter the port or ports where it is maintained.
The sole legitimate exception to this rule is that which admits as cause for absence, accidental and temporary, of blockading vessels, arising from severe weather; consequently any attempt to run the blockade, by availing of the accidental withdrawal of the vessel maintaining it, must be held fraudulent. Hence the absolute necessity that the vessel under your command be kept in position adequate to secure effectiveness to the blockade it maintains, always excepting real greater force which prevents, because it must be kept in mind that violations of blockade are lawful the moment its effectiveness ceases.
12. Violation of the blockade is constituted by the attempt to enter or leave a blockaded port; but the latter may be done—that is to say, the departure by any neutral vessel in ballast, or with a cargo shipped before the blockade began, or with the term established by the general of this squadron; consequently you cannot capture neutral vessels which come under these conditions.
13. The neutral vessel which makes for a blockaded port is not obliged to know that such blockade exists until after she has been notified of it, and this notification must appear indorsed on her crew list or on some other of the papers the vessel should carry. Therefore when a vessel approaches the port you are blockading without knowledge thereof, you will take care that the officer who may visit her mark the notice on her crew list, leaving the vessel to steer after that to the port that may suit her, but not to that blockaded or any other of those in Chili.
The captain of the vessel which is notified of the blockade will give a receipt of the notification, and in it must be started the day, place, and situation astronomically on which it is done.
The vessel to which the notification of blockade is given may not be searched. If, once stamped, the notified vessel should place herself or attempt to place herself within the belt of the blockade, or, placed within, should attempt to reach the blockaded port, or communicate with the hostile shore, you will make prize of her and all her cargo; from which it follows, that when once the existence of the blockade is made known to any neutral, you will capture any of them that attempts to violate it.
14. Notified, as Chili already is, of the declaration of war, you can capture all vessels of the republic either of war or trade, and all enemies’ property which may be found along shore. Although it may be found outside the line of blockade, and although they may not attempt to break that, such portion of their cargoes as may be neutral, if not composed of contraband of war, will be free.
15. If by arrival under stress, either by bad weather, lack of provisions, &c, a neutral vessel should seek to enter the blockaded ports, you will allow it, if there be previous proof of stress which compelled her to do so. But if such vessel carry contraband of war, you must cause her to deposit that in the vessel of your command and another maintaining the blockade, or if her captain prefers, by binding him in writing, to keep it on board until his departure; in such case, you will see to it that the proper document be explicit as possible.
16. As it follows from the foregoing articles that you will have to exercise right of search, I pass on to give you a perception of the manner of carrying it out, so that the difficulties of such a right may not be increased, for although the law of war admits its exercise in all places, I caution you decidedly not to exercise it unless in places and circumstances which give reason to believe that by its exercise the result will be the confiscation of the vessel searched. The manner in which you should proceed is the following:
1. As soon as you think of searching a merchant vessel, you will hoist the national flag, firing a gun, not shotted, on which signal the merchant ship should heave to and await the examination, and hoist her flag; if she does not, it is your duty to act as circumstances require until she does.
2. If the merchantman comes to at once and hoists her flag, you will keep such distance from her as you find convenient, according to the state of wind and sea, and other circumstances [Page 582] not possible to be foreseen, including always the safety of the vessel you may send to examine her. There are treatises on maritime law which say—and the instructions given by the French minister of marine in 1854 to the admirals and commanders of her ships of war notice the same—that you should keep the inquiring vessel out of cannon shot of thé vessel examined; but the treatises of the time, such as those of Ortolan and Negrin, with reason, contest this doctrine, because under such circumstances the best guide is the practical sense of the commander of the investigator; so, therefore, while recommending to you on this point the greatest prudence, so as to combine in the act in question moderation with the succor which the boat may need that goes to make the examination, you can thus manœuvre in observance of what is set out with in the beginning of this paragraph; because here is also the circumstance, that the principle established is also settled for cases like that treated of in the convention made 16th May, 1832, between the republic of the United States and that of Chili, and also as is believed in other later stipulations.
3. As soon as the merchant vessel heaves to, you will send a boat commanded by an officer. He, accompanied by two or three men, will board the vessel and proceed to verify her nationality, the description of the vessel, and her cargo, and whether or not engaged in lawful commerce—that is to say, whether she carries any contraband of war. To this end the officer will require of the captain to present the crew list, the bill of health from the port of departure, from which documents the nationality or ownership and legitimacy of her voyage may be deduced. If from the said examination it result that the vessel visited is neutral, and is going also to a neutral port, the visit is at an end, and the officer should leave the vessel at liberty without looking into the nature of her cargo, stating the fact on her papers. If the aforesaid vessel is bound fora hostile port, then the officer, besides examining said papers, must proceed to call upon the captain for those which show the nature of the cargo, and if it result from them that there is nothing contraband of war on board, the visit is at an end, the vessel at liberty, the annotation before mentioned also being made; but if from these documents it shall appear that contraband of war exists on board, you will proceed to the capture of the vessel, still bearing in mind that even in this case you cannot proceed to open the hatches, closets or chests for the purpose of seeing if there are other papers or suspicious merchandise.
4. It is well understood that what is inculcated in the paragraphs of this article in no way changes what I have pointed out to you, and what is already anticipated in respect of the blockade that may be kept up.
5. You must keep in mind that if fortuitous circumstances detach you from the blockade, and you go to the coast of a neutral country, the law of visit ceases in the territorial waters of the neutral country; and I have already warned you in article 10 that the extension of those waters is limited by the longest range of cannon shot of the vessels of this squadron— that is to say, within that range you cannot exercise the right of search.
6. I must repeat to you here what I cautioned you about in the last sentence of article 7: that it is of the greatest importance that the examination of the ship’s papers be made, because this documentation must be the basis on which must be founded the validity or invalidity of the capture.
17. If, in consequence of the visit, the vessel should be captured, the officer will retain all the papers, giving a receipt for them to the captain, and will cause him to get her under sail so as to approach the visiting vessel, which will then return to her beat. As soon as the vessel visited closes up you will put a crew on board, and notify the officer in whose charge she may be to remain, and proceed to make inventory of everything she contains, sealing up her hatches as soon as that is completed.
18. You will keep on board the captured vessel, whether merchant or corsair, the individuals of her crew, but both women and children, and generally all persons who do not belong to the Chilian army or navy, nor have any connexion with either arm, may be landed at the first port at which the vessel may touch after being taken. The prize being of war, you will observe the caution already given you, and if you think proper may transfer part of her complement of men and until taking her into the port you may deem convenient, but you must exact a promise in writing that they shall not constitute part of that of other vessels-of-war or hostile cruisers.
19. That you may have no doubt about articles considered contraband of war, besides vessels under ircumstances noted in article 6, and in continuation of articles mentioned, are cannon, mortars, fusiles, and every kind of arms, as well as all sorts of projectiles, gun-carriages, quick-matches, fulminating and fuze, caps, matches, powder, saltpetre, sulphur fittings for military clothing, saddles and bridles, and aecoutrements, campaign tents, and generally all instruments and objects manufactured for war.
20. You will not oppose the entry and departure of neutral vessels-of-war at the port you may be blockading.
Additional article: For exact understanding of article 12 of these instructions you must bear in mind that the concession made in it that neutral vessels may depart from the ports of Chili “with a cargo shipped before the blockade” is on the understanding that the departure take place within the term fixed upon by the general of this squadron, and not after the expiration of that term.