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hazards of war, his acts do not involve any breach of national neutrality nor of themselves implicate the Government. Thus, during the progress of the present war in Europe, our citizens have, without. national responsibility therefor, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and by France in transporting troops, provisions, and munitions of war to the principal seat of military operations and in bringing home their sick and wounded soldiers; but such use of our mercantile marine is not interdicted either by the international or by our municipal law, and therefore does not compromit our neutral relations with Russia.”
President Pierce, annual message, Dec. 3, 1854, Richardson's Messages, V.
"It is certainly a novel doctrine of international law that traffic by citizens or subjects of a neutral power with belligerents, though it should be in arms, ammunition, and warlike stores compromits the neutrality of that power. That the enterprise of individuals, citizens of the United States, may have led them in some instances, and to a limited extent, to trade with Russia in some of the specified articles is not denied, nor is it necessary that it should be, for the purpose of vindicating this Government from the charge of having disregarded the duties of neutrality in the present war. Private manufacturing establishments in the United States have been resorted to for powder, arms, and warlike stores, for the use of the allies; and immense quantities of provisions have been furnished to supply their armies in the Crimea. In the face of these facts, open and known to all the world, it certainly was not expected that the British Government would have alluded to the very limited traffic which some of our citizens may have had with Russia, as sustaining a solemn charge against this Government for violating neutral obligation towards the allies. Russia may have shared scantily, but the allies have undoubtedly partaken largely in the benefits derived from the capital, the industry, and the inventive genius of American citizens in the progress of the war; but as this Government has had no connection with
these proceedings, neither belligerent has any just ground of complaint against it.”
Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England, Oct. 13, 1855, 47 Br. & For. State Papers, 421, 424.
Late in 1862 the Mexican minister at Washington complained that the exportation of mules and wagons on French account was permitted at New York, and in this relation he adverted to the orders issued by the Government of the United States forbidding the exportation of arms and munitions of war and various other articles most embraced in contraband lists. Mr. Seward, on December 15, 1862, replied that the action of the United States in prohibiting certain exports was a municipal measure due to the exigencies of the war; that it had no reference to the war in Mexico, and gave no preference to either of the belligerents there. "If Mexico," said Mr. Seward, "shall prescribe to us what merchandise we shall not sell, to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to respect it as much as the United States. Commerce in that case, instead of being free or independent, would exist only at the caprice of war."
Mr. Seward, Sec. of State, to Mr. Romero, Mexican min., Dec. 15, 1862,
"The undersigned, after the most careful reading of Mr. Romero's note,
See, also, Mr. Seward to Mr. Romero, Aug. 7, 1865, Dip. Cor. 1865, III. 640-641. Mr. Seward, however, referring to the course of British subjects in furnishing supplies of arms and munitions of war to the Confederacy" in vessels owned or chartered by the pretended insurgent authorities or running the blockade under contract with them," declared. "British subjects who intervene in our civil war in the manner . . mentioned are by the law of nations liable to be treated by this Government as enemies of the United States, having no lawful claim to be protected by Her Majesty's Government." (Mr. Seward. Sec. of State, to Mr. Adams, min. to England, No. 1026. July 9, 1864, MS. Inst. Gr. Br. XIX. 362.)
There is no law or regulation which forbids any person, or government, whether the political designation be real or assumed, from pur
chasing arms from citizens of the United States and shipping them at the risk of the purchaser.
Speed, At. Gen., 1865, 11 Op. 408; id. 451.
As to supply of arms to South American colonies when in insurrection against Spain, see 5 J. Q. Adams's Memoirs, 46.
For a criticism of the position of the United States in reference to the rights of neutrals to furnish contraband of war to belligerents, see 3 Phill. Int. Law (3d ed.), 250, 408; and as criticising Sir R. Phillimore and pointing out his mistakes in this relation, see Historicus [Sir W. Vernon Harcourt], Letters on some Questions of Int. Law, 130.
Citizens of the United States have, by the law of nations and by treaty, the right to carry to the enemies of Spain, whether insurgents or foreign foes, all merchandise not contraband of war, subject only to the requirements of legal blockade. "Articles contraband of war, when destined for the enemies of Spain, are liable to seizure on the high, seas, but the right of seizure is limited to such articles only, and no claim for its extension to other merchandise, or to persons not in the civil, military, or naval service of the enemies of Spain, will be acquiesced in by the United States. This Government certainly can not assent to the punishment by Spanish authorities of any citizen of the United States for the exercise of a privilege to which he may be entitled under public laws and treaties.".
Mr. Fish, Sec. of State, to Mr. Lopez Roberts, Span. min., April 3, 1869,
This note is cited in Mr. Fish, Sec. of State, to Mr. Cushing, min. to
See, also, Mr. Fish. Sec. of State, to Mr. Shippen, Ecuadorean consul at
"The exportation of arms and munitions of war of their own manufacture to foreign countries, is an important part of the commerce of the United States. In time of war their Government will expect those engaged in the business to beware of all the risks legally incident to it. No such expectation, however, can be indulged in a time of profound peace; an indemnification will be asked of any nation which may unnecessarily or illegally obstruct such trade.”
Mr. Fish, Sec. of State, to Mr. Cramer, July 28, 1874, MS. Inst. Denmark, XV. 107. See, also, Mr. Fish, Sec. of State, to Mr. Russell, June 4, 1875, MS. Inst. Venezuela, II. 291.
During the war between Chile, Bolivia, and Peru the Chilean Government desired the Argentine Republic to prohibit the traffic in arms and munitions of war with the belligerents. Bolivia strongly
protested against such an inhibition, maintaining that it would in its operation be unfair to that Government. On the question at issue the Argentine minister of foreign affairs, Dr. Bernardo de Irigoyen, took substantially the following position: That while it is generally conceded that the traffic in arms and munitions of war by private persons, without intent to aid either belligerent, is admissible as a commercial transaction, subject to the risk of capture, yet that, when the shipment is made by agents of the belligerents on a scale so large as to convert them into important aids to the war, neutral governments should use due diligence to prevent such traffic with one of the belligerents, so that it may not be required to sanetion similar operations on the part of the other belligerent and thus tolerate the conversion of its territory into a center of expeditions in conflict with its neutral character. The reports of the Argentine ministry of foreign affairs show several cases during the war in which Chile protested against alleged shipments of arms from the Argentine Republic to Bolivia; but as the alleged shipments in question were unimportant, the matter does not appear to have resulted in anything more than an exchange of notes.
Mr. Buchanan, min. to the Argentine Republic, to Mr. Hay, Sec. of State, No. 584, Dec. 1, 1898, enclosing a report of Mr. François S. Jones, sec, of legation, 37 MS. Desp. from Arg. Rep.
In the summer of 1879 the captain of a steamer bound from Panama to Callao declined to take on board five large packages which were bound from New York to Callao, and which, on examination, were found to contain a torpedo launch, in five sections, ready to be set up." It was stated that other consignments of like character were to follow. At the instance of a United States customs inspector at Panama the Treasury Department solicited the views of the Department of State as to whether the transaction, assuming that the articles were to be delivered to the Government of Chile or of Peru, involved an infraction of the neutrality laws of the United States. Mr. Evarts, after conference with the Secretary of the Treasury and incidentally with the Chilean minister, and after having caused the question to be examined by the law officer of the Department of State, stated that the only legal provision, if any, applicable to the case was section 5283 of the Revised Statutes, and that he was " clearly of opinion that the simple manufacture and shipment of such materials [as those in question] as merchandise would not be in violation of the provisions of that section. Uniform and repeated rulings of the executive and judicial branches of the Government," said Mr. Evarts, in regard to the true interpretation of the neutrality laws of the United States in the case of even completed seagoing vessels, make it clear that the facts respecting this material stated by In
spector Carter, if the same was found within the jurisdiction of the United States, would not present a case of the violation of the provisions of section 5283 of the Revised Statutes. The articles in question are, as before stated, doubtless contraband of war, and are sold, shipped, and purchased at the peril and risk of capture. Subject to such risk, they continue to be a legitimate element of commerce to the citizens of the United States, a neutral power, with either of the belligerents in time of war, in the same manner and to the same extent as they would be in time of peace, and afford no ground for the interference of the executive officers of the United States, either within their own jurisdiction or elsewhere, with such a mercantile transaction."
Mr. Evarts, Sec. of State, to Mr. Sherman, Sec. of Treas., Nov. 14, 1879, 130 MS. Dom. Let. 472.
March 2, 1885, Mr. Becerra, Colombian minister at Washington, advised the Department of State that certain Colombian citizens, acting in the interest of the rebels who then controlled the Atlantic coast of that country, were about to purchase arms and munitions of war in New York, and also possibly to fit out vessels there for the purpose of carrying the war into the interior of Colombia. These allegations were brought by Mr. Bayard, who was then Secretary of State, to the attention of the proper authorities.
On March 10, 1885, Mr. Garland, Attorney-General, sent to Mr. Root, United States district attorney at New York, the following telegram: "Minister of United States of Colombia at this capital states that parties are engaged in purchase of arms to carry on war against his Government. Steamer leaves your port to-morrow or next day. You are directed to immediately adopt stringent measures to prevent any departure of warlike elements intended to assist expeditions against Colombia."
Mr. Root, on receiving this telegram, ascertained through the local Treasury officials that the steamer Albano, belonging to a regular line, had just cleared for a port in Colombia having arms on her manifest. He requested that the clearance be stopped and the vessel not allowed to leave till further examination; and at the same time he asked Mr. Garland for more particular information, saying: The mere fact that a steamer cleared for a port in the United States of Colombia having arms among her cargo is no ground for interference. It is highly improbable that the vessel in question, whether it be the Albano or any other steamer, will correspond with the description of section 5290. The Albano I understand to be a vessel of a regular line. The detention for the purpose of examination justified by section 5290 will accordingly be brief. In order to take