Mr. Fish, Sec. of State, to Mr. Kirk, June 17, 1869, MS. Inst. Arg. Rep. XV. 317.

When Mr. Nelson, American minister to Spain, arrived at Cadiz in 1823, he was unable to enter owing to the blockade of the port by a French squadron. (Moore, Int. Arbitrations, V. 4505-4506.)

VII. OBSTRUCTION OF NAVIGABLE CHANNELS.

§ 1286.

Febraury 14, 1862, Lord Stanhope, in the House of Lords, called attention to the report that a second squadron of ships laden with stone was about to be sunk by the United States in Maffitt's channel at Charleston, South Carolina. He observed that the sinking of large ships laden with stone on banks of mud at the entrance of a harbor could only end in its permanent destruction and was not justified by the laws of war, and declared that the British Government was well entitled to protest against the act. Earl Russell replied that he considered the destruction of commercial harbors a most barbarous act, that the French Government took the same view, and that they had decided to remonstrate with the Government of the United States. On February 28 Earl Russell stated that he had received a dispatch from Lord Lyons to the effect that Mr. Seward had stated that there had not been a complete filling up of Charleston Harbor and that no more stones would be sunk there.

The subject had been discussed between Mr. Seward and Lord Lyons, and Mr. Seward had made explanations to the effect that artificial obstructions in the channels of rivers leading to ports had been regarded as an ordinary military appliance of war; that it was not conceived that such obstructions could not be removed; and that, upon the termination of the war, there would be cast upon the Government the responsibility of improving the harbors of all the States. After these explanations were given, Mr. Seward ascertained and stated that between the channels at Charleston which had been obstructed there still remained two-the Swash channel and a part of Maffitt's channel-neither of which had been nor was intended to be artificially obstructed and which were to be guarded by the blockading naval forces. Mr. Seward observed that, in making these explanations he was not to be understood as conceding to foreign states a right to demand them. They were accepted by the French, as well as by the British Government.

Halleck, Int. Law (Baker's ed.), II. 23; Mr. Seward, Sec. of State, to

Mr. Adams, min. to England, No. 187, Feb. 17. 1862. Dip. Cor. 1862, 36; Mr. Seward, Sec. of State, to Mr. Dayton, min. to France, No. 114, Feb. 19, 1862, id. 315, 316.

See, also, Archiv. Dip. 1862, II. 80; Fauchille, Blocus Maritime, 144,

H. Doc. 551-vol 7-55

In a telegram to Mr. Young, minister at Peking, January 22, 1884, Mr. Frelinghuysen, referring to an interview which Mr. Lowell had had with Lord Granville, relative to the threatened obstruction by the Chinese of the Canton River, took the ground that "the treaty ports can not rightfully be closed by either France or China, except the latter should do so for necessary protection;" that, if France should agree absolutely and not conditionally to make no attack on the treaty ports, a protest against their obstruction will be made to China by this Government;" but that no protest could be made to China against "taking such steps for its defence as it may deem necessary."

Prior to the sending of these instructions by Mr. Frelinghuysen. Mr. Young had had an interview with the ministers of the Tsung-li yamên, in which he had protested against the obstruction of the navigation of the Canton River, both on the ground that Article XXVI. of the treaty of 1858 provided that in case China should be at war with a foreign power the vessels of the United States should be permitted to continue their commerce with her ports in freedom and security, and that the Chinese authorities were performing in time of peace a belligerent act which, if permitted at Canton, would stand as a precedent for closing every port in China. The Chinese ministers warmly repelled the suggestion that a state of peace existed, declaring that the whole world knew that France was at war with China and that French troops were fighting Chinese troops in Tonquin. They also maintained the right of China to make the obstructions, as an act of self-defense. In an interview with Sir Harry Parkes, British minister, the ministers of the Tsung-li yamên intimated that if China could be authoritatively assured that France would not attack the open ports without notice the obstructions at Canton might be removed.

With reference to these discussions Mr. Frelinghuysen, on April 18, 1884, observed that the gravity of the question seemed in a great measure to have been removed by an assurance given by the yamên that a passage over 100 feet wide would be left in both channels for the convenience of steamers and sailing vessels, a width which seems afterwards to have been increased to 150 feet. "Even, however, under this favorable modification," said Mr. Frelinghuysen. "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 there for shall have passed, and under no circumstances to be admitted as a 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, min. to China, tel.,
Jan. 22, 1884, For. Rel. 1884, 64; Mr. Young to Mr. Frelinghuysen,

Feb. 11, 1884, id. 66; Mr. Frelinghuysen to Mr. Young, No. 267, April 18, 1884, id. 96.

In August, 1884, the governor-general of the two Kwang provinces closed the southern channel of the Canton River by barriers and obstructions of piles, stones, and sunken junks, in order to prevent hostile ships from menacing Canton. The southern channel offered the easiest means of access for vessels to Canton; but, as reported by Mr. Denby, American minister at Peking, in May, 1886, the channel had up to that time remained closed to navigation. The yamên appeared to be opposed to the reopening of the channel, chiefly on the ground that the viceroy of Canton having memorialized the throne, requesting that it might be closed forever, the Emperor had given his approval, and thus disposed of the question.

Mr. Denby, min. to China, to Mr. Bayard, Sec. of State, No. 141, May 31, 1886, For. Rel. 1886, 90.

"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 belligerent 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 Germany 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 Government 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 obstructions 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

instruction 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, min. to China, No. 90, July 28, 1886, For. Rel. 1886, 95.

March 19, 1888, Mr. Denby reported that the Tsung-li yamên had again refused to remove the obstruction, but that the diplomatic corps did not accept the obstruction as final. (For. Rel. 1888, I. 270. Also, id. 224, 250.)

During the war with Japan in 1894, the Tsung-li yamên announced the closure of Foochow for purposes of defense. One entrance was left open, and a place was designated as an anchorage for foreign and Chinese steamers outside the mouth of the river, where they were required to discharge and load cargo, which was conveyed to and from Foochow by lighters registered at the customs. These lighters followed an indicated route and plied only in the daytime. In reporting these measures, the American chargé at Peking observed that, burdensome as they doubtless would prove to be, no objection could be made to them in view of the demoralization of the Chinese naval forces. Foochow being an important naval depot which must be guarded at all hazards. The Government of the United States reaffirmed the position taken by Mr. Frelinghuysen in his telegram to Mr. Young of January 22, 1884, and by Mr. Bayard, in his instructions to Mr. Denby of July 28, 1886.

Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé at Peking. Sept. 28, 1894, MS. Inst. China, V. 95; Mr. Denby, jr., to Mr. Gresham, No. 60, Oct. 9, 1894, For. Rel. 1894, Appendix I. 71.

66

6. Use of neutral territory as base of operations."

(1) Station for hostilities. § 1301.

(2) Sale of prizes. § 1302.

(3) Hostile passage. § 1303.

(4) Telegraphic service. § 1304.

(5) Coal supplies. § 1305.

7. Question as to rescue of seamen. § 1306.

IV. ACTS NOT PROHIBITED.

1. Sale of merchant ships. § 1307.

2. Sale of contraband.

(1) By private persons. § 1308.
(2) By governments, inadmissible.

3. Blockade running. § 1310.

4. Loans or contributions of money.
(1) By private persons. § 1311.
(2) By governments, inadmissible.

5. Expressions of opinion. § 1313.

V. ASYLUM.

§ 1309.

§ 1312.