Изображения страниц

any further steps to prevent the arms from going forth, I must have some facts which will establish a violation of some provisions of the neutrality act. The case of the steamship Florida, decided by Judge Blatchford in the district court in this district in 1871, and reported in the 4th of Benedict District Court Reports, 452, illustrates the difficulty of establishing violations of law of this description."

This correspondence was communicated by Mr. Bayard to Mr. Becerra on March 11, 1885. Next day Mr. Becerra, undertaking to furnish the further information which Mr. Root had requested, represented that the Albano had special contracts with the Colombian Government a more than ordinary observance of neutrality in the domestic contentions of that country was required; that, in spite of this, the vessel had taken on arms for the rebels, for the purpose of delivering them at a port which the competent authorities of Colombia had by decree declared to be closed to foreign commerce; and that the United States, as the guarantor of the neutrality of the Isthmus under the treaty of 1846, was specially interested in preserving order there and in repressing the insurrection. On the 17th of March Mr. Becerra complained that the Albano, in spite of his efforts, had not been detained; and he also stated that a sailing vessel laden with arms had left New York for a port in Colombia held by the insurgents and likewise declared closed to commerce.

On March 25, 1885, Mr. Bayard, replying to Mr. Becerra's representations, said: "The existence of a rebellion in Colombia does not authorize the public officials of the United States to obstruct ordinary commerce in arms between citizens of this country and the rebellious or other parts of the territory of the Republic of Colombia. It is a well-established rule of international law that the allowance of such commerce is no breach of duty towards the friendly government whose enemies may thus be supplied with arms. As no charge is made that the vessels in question are armed vessels intended for the use of the rebels mentioned, or that military expeditions are being set on foot in this country against the Republic of Colombia, the duties of this Government are limited to the enforcement of the statutory provisions which apply to such cases."

In a subsequent note to Mr. Becerra, of March 27, 1885, Mr. Bayard, again referring to the shipment of arms by the Albano, said: “It has not as yet been possible to ascertain whether these articles are intended to be used in expeditions hostile to the Colombian Government, but even should this prove to be the case, this Government, however much it may regret the encouragement in any manner from this country of the revolt against the constitutional authorities of its sister Republic, must maintain the right of its citizens to carry on without a violation of the neutrality laws the ordinary traffic in arms

with the rebellious or other parts of that Republic, as more particularly set forth in my note to you of the 25th instant."

Mr. Becerra, Colombian min., to Mr.. Frelinghuysen, Sec. of State, March 2, 1885, For. Rel. 1885, 231; Mr. Bayard, Sec. of State, to Mr. Becerra, March 11, 1885, id. 232-234; Mr. Becerra to Mr. Bayard, March 12, 1885, id. 234–236; Mr. Bayard to Mr. Becerra, March 25, 1885, and March 27, 1885, id. 238–239.

See, also, Mr. Bayard, Sec. of State, to Mr. Garland, At. Gen., March 17, 1885, 154 MS. Dom. Let. 503; same to same, March 9, 1885, id. 415; same to same, March 12, 1885, id. 451; Mr. Bayard, Sec. of State, to Sec. of Treas., March 17, 1885, id. 509.

"It is also to be observed that the fact that certain articles of commerce are contraband does not make it a breach of neutrality to export them. There has not been, since the organization of our Government, a European war in which, in full accordance with the rules of international law, as accepted by the United States, munitions of war have not been sent by American citizens to one or both of the belligerents; yet it has never been doubted that these munitions of war, if seized by the belligerent, against whom they were to be used, could have been condemned as contraband.

"The question, then, is whether furnishing to belligerents coal and life shells is a breach of neutrality which the law of nations forbids. The question must be answered in the negative as to coal, and the same conclusion may be adopted with regard to life shells, which are said to be projectiles used in the bringing to shore or rescue of wrecks.

"Under these circumstances it is not perceived why, in the present case, the United States authorities should intervene to prevent such supply from being forwarded to the open ports of either belligerent. Even supposing such articles to be contraband of war and consequently liable to be seized and confiscated by the offended belligerent, it is no breach of neutrality for a neutral to forward them to such belligerent ports subject, of course, to such risks. When, however, such articles are forwarded directly to vessels of war in belligerent service another question arises. Provisions and munitions of war sent to belligerent cruisers are unquestionably contraband of war. Whether, however, it is a breach of neutrality, by the law of nations, to forward them directly to belligerent cruisers depends so much upon extraneous circumstances that the question can only be properly decided when these circumstances are presented in detail.”

Mr. Bayard, Sec. of State, to Mr. Smithers, chargé at Peking, June 1, 1885, For. Rel. 1885, 172.

See, also, For. Rel. 1885, 156, 168, 170. That neutrals may sell arms to belligerents, see Mr. Frelinghuysen, Sec. of State, to Mr. Dayton, Feb. 19, 1883, MS. Inst. Netherlands, XV. 418.

Art. 20 of the treaty between the United States and Hayti, of November 3, 1864, provides that "liberty of navigation and commerce shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war." The article then specifies the things which shall be comprehended under that designation. Art. 21 stipulates that "all other merchandises and things not comprehended in the list shall be considered as subjects of free and lawful commerce, which may be transported in the freest manner by the citizens of both contracting parties, even to places belonging to an enemy, excepting only such as may be besieged or blockaded. The Haytian minister at Washington asked that the United States, on the strength of these stipulations, take steps to prevent the exportation of articles contraband of war to Hayti. The United States dissented from this construction of the treaty. It was not unusual, said the Department of State, to find in the treaties of the United States specifications of what things should be regarded as contraband of war between the contracting parties. Such provisions, however, had never been held to bind either government to prevent its citizens from exporting such things to the territory of any other country under any circumstances whatever. The United States had uniformly maintained the position taken by Mr. Jefferson, as Secretary of State, that "our citizens have always been free to make, vend, and export arms."

Mr. Bayard, Sec. of State, to Mr. Preston, Haytian min., Nov. 28, 1888,
For. Rel. 1888, I. 1000. See, also, same to same, Oct. 29, 1888, id. 990.

The landing of a cargo contraband of war, on the shore of the country of one belligerent, at a point not blockaded, is not an act of hostility against the other belligerent.

The Florida, 4 Benedict, 452.

"I have the honor to acknowledge the receipt of your note of the 10th instant, in which you inform me that your Government has prohibited, until further orders, the importation into the Republic of arms and munitions of war of all kinds.

"In conveying this information you request me, if possible, to communicate this decree to the custom-houses of the United States in order that the shipment of such articles to Chile may be prevented; and in this relation you state that an agent of the insurgents in Chile has arrived in the city of New York for the purpose of purchasing arms and munitions of war.

"The laws of the United States on the subject of neutrality, which may be found under title LXVII of the Revised Statutes, while forbidding many acts to be done in this country which may affect the relations of hostile forces in foreign countries, do not forbid the man

ufacture and sale of arms or munitions of war. I am therefore at a loss to find any authority for attempting to forbid the sale and shipment of arms and munitions of war in this country, since such sale and shipment are permitted by our law. In this relation it is proper to say that our statutes on this subject are understood to be in conformity with the law of nations, by which the traffic in arms and munitions of war is permitted, subject to the belligerent right of capture and condemnation.

"Since your note has directed attention to the subject of neutrality, it should be stated that our laws on that subject are put in force upon application to the courts, which are invested with the power to enforce them and to inflict the penalties prescribed for their violation. Our statutes not only forbid the infringement in this country of the rules of neutrality, but also impose grave penalties for their infraction.

“I will inclose a copy of your note to the Secretary of the Treasury and the Attorney-General."

Mr. Blaine, Sec. of State, to Mr. Lazcano, Chilean min., March 13, 1891,
For. Rel. 1891, 314.

"The sale of arms and munitions of war, even to a recognized belligerent, during the course of active hostilities, is not in itself an unlawful act, although the seller runs the risk of capture and condemnation of his wares and contraband of war."

Mr. Foster, Sec. of State, to Mr. Bolet Peraza, Venezuelan min., Sept. 22, 1892, For. Rel. 1892, 645.

The mere sale or shipment of arms and munitions of war by persons in the United States to persons in Cuba is not a violation of international law, however strong a suspicion there may be that they are to be used in an insurrection against the Spanish Government. Nor does the sale or the shipment of such articles become a violation of international law merely because they are not destined to a port recognized by Spain as being open to commerce or because they are to be landed by stealth.

[ocr errors]

Harmon, At. Gen., Dec. 10, 1895, 21 Op. 267, 270-271, citing The Santissima Trinidad, 7 Wheat. 283, 340; The Bermuda, 3 Wall. 514; United States r. Trumbull, 48 Fed. Rep. 99; The Itata, 66 Fed. Rep. 505; Hendricks r. Gonzales, 67 Fed. Rep. 351; 2 Pradier-Fodéré, Droit Int. Pub., sec. 469; Cobbett's Leading Cases on Int. Law, 167–171; Phillimore's Int. Law, III. 274; Snow's Cases on Int. Law, 408-420; 11 Op. At. Gen. 451; The steamship Florida, 4 Ben. 452; Abdy's Kent, Int. Law, 491; Snow's Cases on Int. Law, 497.

It was added, however, that if force was intended to be employed in landing the arms, the question of a hostile expedition might be raised.

"If, in characterizing this country as a base of operations against Spain, it be meant that the Cuban insurgents procure the larger part

of their military supplies here, the fact may be so, though the means of comparing other countries, the British West Indies in particular, with the United States are not at hand. But the comparison is of no importance, and it would be of no consequence if the insurgents derived their whole stock of warlike equipment from the United States. The citizens of the United States have a right to sell arms and munitions of war to all comers-neither the sale nor the transportation of such merchandise, except in connection with and in furtherance of a military expedition prosecuted from our shores, are a breach of international duty or give Spain any ground of complaint-and the denunciation of such acts as evidencing 'criminal conspiracy,' or as showing United States territory to have become a base of operations against Spain, is greatly to be deprecated as without sufficient warrant in law or in fact, and as therefore ill calculated to promote the harmonious relations of the two countries."

Mr. Olney, Sec. of State, to Mr. Dupuy de Lome, July 15, 1896, MS. Notes to Spain, XI. 178.

The neutrality laws are not designed to interfere with commerce, even in contraband of war, but merely to prevent distinctly hostile acts, as against a friendly power, which tend to involve this country

in war.

United States v. The Laurada, 85 Fed. Rep. 760.

Three persons, one a citizen of the South African Republic, another a citizen of the State of New York, and the third the consul-general of the Orange Free State, whose citizenship was not disclosed, filed a bill in equity in the United States circuit court for the eastern district of Louisiana, April 13, 1901, in which they set forth that they were owners of property in the South African Republic and the Orange Free State; that Great Britain was by force of arms destroying their property; that a certain steamer, employed by her owners and charterers in the military service of Great Britain, was loading horses and mules which were the property of the British Government and were to be employed in its military service; that the port of New Orleans was thus being made a base of military operations in aid of Great Britain for the renewal and augmentation of her military supplies; that the aid thus furnished enabled the British army to carry on war and destroy property, thus causing the complainants irreparable injury; that one of the complainants has already suffered loss of property amounting to $90,000, and was threatened with further loss by the continuance of the war which Great Britain was enabled to carry on only by the renewal and augmentation of military supplies from ports of the United States, and especially from the port of New Orleans. It was therefore prayed that an injunction issue restrain

« ПредыдущаяПродолжить »