No. 197.

Mr. Bayard to Mr. Becerra .

Sir: I had the honor to receive in due course your note of the 9th instant, communicating to me the purport of the two decrees recently issued by the Colombian Government, touching foreign intercourse with certain named ports on the Atlantic coast. The subject so presented has received the detailed consideration due to its importance, and I have now the pleasure to acquaint you with the views of this Government thereon.

By the first of these decrees, as you inform me, the Colombian Government, in the exercise of its authority, and expressly enforcing pertinent provisions of its commercial and revenue laws, declares the ports of Sabanilla and Santa Marta, on the Caribbean Sea, and the fluvial port of Barranquilla, closed to foreign commerce, and denounces against the goods which may be imported thither or exported thence, and against the vessels which may engage in trade with those ports, the forfeitures and penalties fixed by Colombian law for smuggling.

By the second decree it is declared that the vessels which, under the flag of Colombia, are engaged in hostile operations against Cartagena, to the interference of lawful foreign commerce with that port, do not belong to the United States of Colombia, have no right to fly the Colombian flag, and are beyond the pale of international law, and consequently [Page 255] their punishment by the armed force of any friendly power in those waters is invited.

Upon these several decrees I have the honor to make the following observations:

First. This Government, following the received tenets of international law, does not admit that a decree of a sovereign Government closing certain national ports in the possession of foreign enemies or of insurgents has any international effect unless sustained by a blockading force sufficient to practically close such ports.

Mr. Lawrence thus states the rule drawn from the positions taken by the administrations of Presidents Jefferson and Madison during the struggles with France and England, which grew out of the attempt to claim the right of closure—as equivalent to blockade—without effective action to that end:

Nor does the law of blockade differ in civil war from what it is in foreign war. Trade between foreigners and a port in possession of one of the parties to the contest cannot be prevented by a municipal interdict of the other. For this, on principle, the most obvious reason exists. The waters adjacent to the coast of a country are deemed within its jurisdictional limits only because they can be commanded from the shore. It thence follows that whenever the dominion over the land is lost, by its passing under the control of another power, whether in foreign war or civil war, the sovereignty over the waters capable of being controlled from the land likewise ceases. (Lawrence’s note on Wheat on, Part II, ch. iv, §5, 2d annotated ed., p. 846.)

The situation which the present decree assumes to create is analogous to that caused by the action of the Government of New Granada in 1861. The Granadian chargé d’affaires, Señor Rafael Pombo, on the 31st of March of that year, notified Mr. Seward that certain ports, among them Rio Hacha, Santa Marta, Cartagena, Sabanilla, and Zapote, all on the Caribbean coast, had been declared to be closed to commerce whether of export or of import. There is this difference, however, that the Granadian Government then announced that war vessels of the confederation were to cruise about the ports closed to commerce for the purpose of seizing vessels which should be found violating the closure which had been decreed. It appears from Mr. Seward’s note of acknowledgment to Señor Pombo, dated April 9, 1861, that the announcement then made was interpreted as a declaration that certain named ports were “in a state of blockade which should be rendered effective by national vessels, and of which due public notice had been given.”

While the Government of the United States, in 1861, thus confirmed the doctrine it had consistently maintained from the earliest days of the Republic, that non-possessed ports might be effectually closed by a maritime blockade, the British Government then controverted the right of New Granada to resort to such a remedy. Answering an inquiry in the House of Commons, June 27, 1861, Lord John Russell, the secretary of state for foreign affairs, said:

The Government of New Granada has announced, not a blockade, but that certain ports of New Granada are to be closed. The opinion of Her Majesty’s Government, after taking legal advice, is that it is perfectly competent to the Government of a country in a state of tranquillity to say which ports shall be open to trade and which shall be closed; but in the event of insurrection or civil war in that country, it is not competent for its Government to close the ports that are de facto in the hands of the insurgents, as that would be a violation of international law with regard to blockades.

His lordship added that orders had been given to the British naval commanders in the Caribbean Sea “not to recognize the closing of these ports.” (See Parliamentary Debates, cited in Lawrence’s Wheaton, 2d annotated ed., notes, pp. 46, 47, 48.)

[Page 256]

When in 1861 the civil war in the United States broke out, this Government maintained the position that the municipal closure of domestic ports in the hands of the Confederate forces was a legitimate incident toward the maintenance of an effective blockade by sea. This was opposed by the British Government, and in the correspondence which then took place Lord John Russell repeatedly announced to Mr. Adams the same rule as he had previously announced with regard to the Granadian decree; and he finally appealed to his answer in the New Granada case for the purpose of showing that it was intended to make the rule universal. (United States Diplomatic Correspondence, 1861, pp. 90, 95, 117, 120, 177.) The British ministry ultimately went to the extreme of declaring that they would consider such a municipal enactment (that of the closure of non-possessed ports) as null and void, and that “they would not submit to measures taken on the high seas in pursuance of such decree.” (Parliamentary Papers, 1862, North America, No. 1, p. 72; Lord Lyons to Lord J. Russell, August 12, 1861.)

In a speech of Mr. Cobden, made on October 25, 1862 (cited in Lawrence’s Wheaton, 2d annotated ed., p. 823, note), he said:

It has been distinctly intimated to America that we do not recognize their municipal right in the matter; and if they were to proclaim, for example, that Charleston was not to be traded with, and did not keep a sufficient force of ships there, we should go on trading with the town just as if nothing had occurred. It is only upon condition that the blockade shall be effectively maintained as between belligerents that the European powers recognize it at all.

A recent authority, Professor Perels, judge of the imperial admiralty court in Berlin, in a treatise on international maritime law, published in 1882, writes thus:

The embargo of domestic ports, no matter by what measures or for what purpose it takes place, as it has not the character of a real blockade, cannot have the same consequences. It can indeed without question be maintained, in case of need, by means of the employment of force against such neutral ships as do not choose to acquiesce in it; likewise a seizure of such neutral ships as do not find themselves prepared to submit to the measures of embargo must be considered as allowable, and it must be held in the case of active resistance that even the destruction of such ships is allowable in accordance with the rules of war; but it is inadmissible, because not grounded on international law, to condemn as good prizes on account of their cargoes neutral ships resisting such embargo. (Op. cit., sec. 52.)

And it is conceded by this eminent authority that there can be, without blockade, no closure of a port not in possession of the sovereign issuing the decree.

The legislation by the Congress of the United States in 1861 relative to the closing of the ports of the South held by the Confederate armies was really conditioned on a blockade. As Mr. Seward wrote to Mr. Adams, July 21, 1861—

The law only authorizes the President to close the ports in his discretion, according as he shall regard exigencies now existing or hereafter to arise. * * * The passage of the law, taken in connection with attendant circumstances, does not necessarily indicate a legislative conviction that the ports ought to be closed, but only shows the purpose of Congress that the closing of the ports, if it is now or shall become necessary, shall not fail for want of power explicitly conferred by law. (United States Diplomatic Correspondence, 1861, p. 120.)

Under the authority so conferred certain ports were closed by formal proclamation of blockade which it thereupon became incumbent upon the Government of the United States to maintain effectively according to the prescriptions of international maritime law.

After careful examination of the authorities and precedents bearing upon this important question, I am bound to conclude, as a general principle, that a decree by a sovereign power closing to neutral commerce [Page 257] ports held by its enemies, whether foreign or domestic, can have no international validity and no extraterritorial effect in the direction of imposing any obligation upon the Governments of neutral powers to recognize it or to contribute toward its enforcement by any domestics action on their part. Such a decree may indeed be necessary as a municipal enactment of the state which proclaims it, in order to clothe the executive with authority to proceed to the institution of a formal and effective blockade, but when that purpose is attained its power is exhausted. If the sovereign decreeing such closure have a naval force sufficient to maintain a blockade, and if he duly proclaim such a blockade, then he may seize, and subject to the adjudication of a prize court, vessels which may attempt to run the blockade. If he lay an embargo, then vessels attempting to evade such embargo may be forcibly repelled by him if he be in possession of the port so closed. But his decree closing ports which are held adversely to him is, by itself, entitled to no international respect. Were it otherwise the de facto and titular sovereigns of any determinate country or region might between them exclude all merchant ships whatever from their ports, and in this way not only ruin those engaged in trade with such states, but cause much discomfort to the nations of the world by the exclusion of necessary products found in no other market.

The decree of closure of certain named ports of Colombia contains no intimation of an ulterior purpose to resort to a proclaimed and effective blockade. It may, therefore, be premature to treat your announcement as importing such ulterior measures; but it gives me pleasure to declare that the Government of the United States will recognize any effective blockade instituted by the United States of Colombia with respect to its domestic ports not actually subject to its authority. This Government will also submit to the forcible repulsion of vessels of the United States by any embargo which Colombia may lay upon ports of which it has possession, when it has power to effect such repulsion. But the Government of the United States must regard as utterly nugatory proclamations closing ports, which the United States of Colombia do not possess’, under color of a naval force which is not even pretended to be competent to constitute a blockade.

Secondly. The Government of the United States cannot regard as piratical vessels manned by parties in arms against the Government of the United States of Colombia, when such vessels are passing to and from ports held by such insurgents, or even when attacking ports in the possession of the National Government. In the late civil war, the United States at an early period of the struggle surrendered the position that those manning the Confederate cruisers were pirates under international law. The United States of Colombia cannot, sooner or later, do otherwise than accept the same view. But, however this may be, no neutral power can acquiesce in the position now taken by the Colombian Government. Whatever may be the demerits of the vessels in the power of the insurgents, or whatever may be the status of those manning them under the municipal law of Colombia, if they be brought by the act of the National Government within the operation of that law, there can be no question that such vessels, when engaged as above stated, are not, by the law of nations, pirates; nor can they be regarded as pirates by the United States.

The status of purpose or of employment, which the Government of Colombia seeks to create against such vessels by decreeing them to be pirates, is, of course, wholly distinct from their inherent status as floating property. On this latter point we are not as yet adequately informed [Page 258] The commanders of the naval vessels of the United States on the Colombian coast have, however, been told that if conclusive proof be shown that any vessels belonging to citizens of the United States have been unlawfully taken from them, the recovery of such property by the owners, or by others acting in their behalf, to the end of its restoration to their legitimate control, is warrantable. Such a right is inherent, depending wholly upon the circumstances of the case, and cannot be derived from or limited by any municipal decree of the Colombian Government like that which you now bring to my notice.

Having thus replied to the two propositions contained in your note of the 9th instant, it may not be improper to recapitulate in somewhat more of detail the historical attitude of the Government of the United States in regard to the question of closing non possessed ports, in order that its consistency may be quite evident to you.

As early as April 24, 1861, when Mr. Lincoln’s administration had only been in office six weeks, but when it was already apparent that the secession movement then begun would speedily have possession of most of the ports of the Southern States, Mr. Seward addressed a circular to the ministers of the United States in Europe, in which he declared the adhesion of the United States Government to the rule that “blockades, in order to be binding, must be effective; that is to say, maintained by forces sufficient really to prevent access to the coast of the enemy.” (United States Diplomatic Correspondence, 1861, p. 34.)

When President Lincoln proclaimed, as he did on the inception of the civil war, a blockade of the Southern coast, the proclamation was followed by an announcement to France and to England that the blockade would be effective in the above sense; and it is important to observe that, enormous as were the profits to be gained by blockade running and doubtful as was at least the friendliness of certain European courts toward the United States, not one of the maritime powers of Europe complained that the blockade was not effective.

Congress, it is true, adopted a few weeks later a municipal statute, as hereinbefore stated, authorizing the President, at his discretion, to close the Southern ports; but as to this measure the following observations are to be made: (a) The closure was to be a domestic act, incidental to the blockade, the permanency of which as a general measure during the civil war the President had already announced to foreign sovereigns, (b) It was to be effected in part by land forces, (c) Its institution was conditional upon the discretion of the President, which discretion was never exercised.

It is as thus qualified and explained that Mr. Seward refers, in his correspondence with Mr. Adams and Lord Lyons, to the statutes in question, but it is impossible not to see, in Mr. Seward’s references, a latent appeal of great force against the action of those European powers which, at the beginning of this century, did not hesitate to convulse and devastate the world by decrees and orders in council closing ports they did not possess. They did this in the face of vehement and almost supplicatory remonstrances from the United States, and forced this Government, then young in the family of sovereignties, and naturally desirous of peace with all, most reluctantly and at great cost of blood and treasure to undertake, as at last the sole maritime contestant, wars against Great Britain and France to maintain the freedom of the seas and the invalidity of paper blockades.

With this unimpeachable record behind us, no tangible objection could be made to the validity of a blockade which was effective enough to [Page 259] keep off multitudes of the most skillful navigators of those countries from the Southern ports of the United States, and the appeal had its immediate and inevitable effect. Great Britain and Prance, on the one hand, ceased to contest the validity and efficiency of the blockade of the Southern ports, and united, on the other hand, in the most solemn repudiation of the position formerly taken by them, that a belligerent can, by mere decree, give binding international effect to the asserted closure of a port he does not hold. And that ports hot so possessed cannot be closed, even by their legitimate sovereign, without the concomitant of a duly announced and effective blockade, may be accepted as now an established rule of international law.

I have, in conclusion, to express the pleasure with which I receive your statements respecting the progress of pacification and of the restoration of authority in the United States of Colombia.

Accept, sir, &c.,

T. F. BAYARD.