Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874
No. 317.
Sir Edward
Thornton to Mr. Fish.
Sir: In compliance with an instruction, which I have received from Earl Granville, I have the honor to inclose, for the information of the government of the United States, copies of two instructions which have been addressed by his lordship to Her Majesty’s minister at Madrid, on the subject of the proposed blockade, by the Spanish government, of the northern coast of Spain.
I have, &c.,
Earl Granville to Mr. Layard.
Sir: With reference to my dispatch No. 55, of the 13th instant, I have to state to you that Her Majesty’s government have now considered, in consultation with the law-officers of the Crown, your dispatches No. 106, of the 2d, and No. 125, of the 6th, instant, relative to the regulations under which the proposed blockade of the north coast of Spain is to be carried out.
[Page 551]Her Majesty’s government are advised that, if the Spanish government is prepared to accept the consequences which will follow of raising the Carlist insurgents to the status of recognized belligerents by a declaration of belligerent blockade, there is no objection to the regulations issued to the Spanish squadron in the Pacific on November 26, 1864, and adopted by the 4th article of the decree of the 2d instant, in so far as those regulations relate to the matter of blockade. Upon other points, however, Her Majesty’s government are advised that the regulations contain serious errors, against which they feel bound to protest at once, if it is proposed to put these regulations in force.
Article 12, which deals with the question of recapture from the enemy of neutral vessels, is directly at variance with the established rule of the law of nations. The Spanish regulation claims to treat neutral vessels recaptured from the enemy, after twenty-four hours’ possession by the latter, as enemy’s property.
The exact opposite of this proposition is the true rule of the law of nations. Prima facie, and before condemnation, a neutral vessel in the hands of the captors, if recaptured, is to be restored to the neutral owner without salvage. (Vide Dana’s “Wheaton,” p. 458; Valin’s “Traité de Prises,” vol. ii, tit. 7, cap. 2; Pistoye and Duverdy, and cases there cited, particularly the “Statira,” p. 122, and “l’Esther,” p. 130.)
It is unnecessary at present to enter on the exceptions to this rule. It is enough to say that the proposition laid down in the Spanish regulations, article 12, is inadmissible.
Article 14 of the regulations, which relates to contraband, is equally erroneous. That article, in the case where one-half of the cargo of a neutral vessel is contraband, claims to condemn the residue of the cargo and the ship. This is contrary to the established law of nations as practiced in modern times. The presence of one-half (or any other proportion) of contraband cargo does not justify the condemnation of the innocent residue, or of the ship. (Vide Dana’s “Wheaton,” p. 665, note, and Ortolan’s “Regles Internationales,” vol. ii, liv. 3, cap. 6.)
The claim in the same article to condemn the ship and cargo, on the ground of “carriage of official dispatches” generally, without limitation, is also confounded. It is not the fact that the carriage of all official dispatches works a condemnation. On the contrary, diplomatic dispatches are lawfully carried by a neutral vessel, (vide case of “Caroline,” 6 Robertson’s Reports, and Dana’s note to “Wheaton,” p. 643;) and the mere fact that dispatches are found on board a neutral vessel, in the absence of fraud or actual interposition in the service of the enemy, is no ground of confiscation. (“Halleck,” p. 643.)
I have, therefore, to instruct you to inform the Spanish government that Her Majesty’s government cannot admit the belligerent claims asserted in the above-mentioned articles.
It would be well that you should place this protest on record, even if the blockade should be abandoned.
I am, &c.,
Earl Granville to Mr. Layard.
Sir: By your telegrams of the 2d instant you informed me of the publication, in the Madrid Gazette, of a decree declaring a blockade of the northern coast of Spain from Cape Penas to Fuentarrabia, with the exception of the ports of Gijon, Santander, and San Sebastian, such blockade to commence on the 20th instant.
Her Majesty’s government have taken this announcement into their serious consideration, and have consulted the law-officers of the Crown thereon.
They are advised that, assuming the blockade to be effective, they must recognize the fact that it exists de facto and de jure. The result, however, will be that the Carlists henceforth become belligerents.
Her Majesty’s government presume that the parts of the coast to which the blockade is applied are in the hands of the Carlists, for the Madrid government cannot establish a municipal blockade of its own ports or coast, so as to entitle them to exercise on the high seas belligerent rights against foreign vessels.
I have, therefore, to instruct you to warn the Spanish government that the establishment of the proposed blockade must lead to the issue by Her Majesty’s government of a proclamation of neutrality.
Your dispatches, No. 106, of the 2d, and No. 125, of the 6th instant, relative to the regulations under which the blockade, if established, is to be carried out, have been received. Those regulations will be carefully considered by Her Majesty’s government, and a further instruction will be sent to you with regard to them.
The substance of this instruction has been sent to you by telegraph this day.
I am, &c.,