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VARIOUS COMPLAINTS OF THE UNITED STATES AGAINST GREAT BRITAIN; TRAFFIC IN MUNITIONS OF WAR.

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PART IV. Vari

United States

Traffic in muni

The fourth part of the Case of the United States contains a general and comprehensive statement of all the complaints which complaints of they conceive themselves to have against Great Britain. It against Great Brit will be found, on examination, that these complaints are of two classes. A small number of them have reference tions of war. to the vessels enumerated at p. 320 of the Case, or some of them, and charge or suggest against Great Britain certain failures of duty in respect of those vessels. A much larger number have no reference whatever to those vessels, and do not charge or suggest any failure of duty in respect of them or any of them. The former class are within the scope of the reference to arbitration; the latter are not within it.

In the Case of the United States, however, these various complaints have been connected together in a narrative which draws no distinction between those which are and those which are not relevant to the questions at issue.

Analyzing the narrative, we find that it is in substance as follows: The government of the Confederate States sent to England, to Nassau, to Havana, and other places, agents instructed to purchase arms and munitions of war, with other things of which the Confederate States stood in need, and to procure ships suitable for warlike use. The persons sent to England on this errand were supplied with funds by remit tances of specie and consignments of cotton, all necessary payments being made by drafts on a mercantile house in Liverpool, who were "depositories" of the funds. The whole southern coast being blockaded, it was necessary for the agents to send their purchases in such a manner as to elude the blockade. The British islands of New Providence and Bermuda offered, from their geographical position, peculiar facilities for the purpose, and advantage was taken of these facilities, large quantities of goods being sent thither from England, and forwarded thence to different confederate ports. Some of the ships employed in this traffic were the property of the confederate government; some others were chartered by its agents. The colonial authorities, it is affirmed, encouraged the trade, and placed obstacles in the way of the United States cruisers which were endeavoring to suppress it. It is added that the difficulties thus created were enhanced by an order of the British government, which directed that vessels of war should not be admitted, unless in case of distress, to the ports of the Bahama Islands. Meanwhile the confederate agents contracted with ship-builders in England and Scotland for ships suitable for war to be built to order, and purchased some others in the market. Three or four of these vessels they succeeded in sending to sea; the remainder were stopped. They also purchased guns, munitions of war, and ships' stores, and dispatched them to various places-the Azores, the Madeira Islands,

one of the Bahamas, the coast waters of France-where they were put on board of the vessels. English seamen were induced to serve in them, and were paid their wages through the instrumentality of the Liverpool house. The British government required, before it would order the seizure of a suspected vessel, evidence which could be produced in a court of justice. It declined during the war to propose to Parliament any alteration of the law applicable to such cases, stating that the law was sufficient, and that where it had failed the deficiency had been in timely proof that the acts complained of were within the law.

This is the substance of the complaints of the United States, stated in simple terms. Some of them are true, some erroneous, and the greater part irrelevant to the questions referred to the tribunal.

It is the right of Great Britain to decline absolutely any discussion on the question whether, in taking no steps to prevent the conveyance of arms and munitions of war from British or colonial ports to the Confederate States, or in any matter whatever connected with that traffic, her government failed to discharge any international duty. But that something should here be said on this subject may perhaps be convenient to the arbitrators.

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In the case presented to the tribunal on the part of Great Britain, the following propositions were laid down as agreeable to the principles of international law and the practice of nations:

A neutral government is bound to exercise due diligence, to the intent that no place within its territory be made use of by either belligerent as a base or point of departure for a military or naval expedition, or for hostilities by land or sea.

A neutral government is not, by force of the above-mentioned obligation or otherwise, bound to prevent or restrain the sale within its territory, to a belligerent, of artieles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.

Her Majesty's government has hitherto believed that, on this subject, no difference of opinion existed between Great Britain and the United States. By no power has the principle been asserted so strongly, unreservedly, and consistently as by the United States, and no nation has more freely acted upon it.'

It can hardly be necessary to cite examples. The emphatic enunciation of this doctrine in Mr. Jefferson's letter to Mr. Hammond (15th May, 1793) has been often referred to:

"The purchase of arms and military accouterments by an agent of the French government in this country, with an intent to export them to France, is the subject of another of the memorials; of this fact we are equally uninformed as of the former. Our citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned, and that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all."-(Appendix to British Case, vol. v, p. 242.)

It will be observed that this was subsequent to a proclamation issued by the President, in which conveyance of contraband to a belligerent was specified as among the acts involving a liability to "punishment or forfeiture under the law of nations," and notice was given that prosecutions would be instituted against all persons who should, within the cognizance of the courts of the United States, "violate the law of nations with respect to the powers at war or any of them." It was written in answer to a representation by the British minister to the effect that he had "received informa

These propositions are true without any qualification, and they have long been accepted and acted upon as true without qualification by the maritime powers of Europe and of the American continent. Each bellig. erent is at liberty to profit by the traffic, so far as it may be of use to him; he is free also to repress it, if he can, so far as it is of assistance

to his enemy; and for this latter purpose he is armed by the [50] custom of nations *with exceptional powers, which exist only

during the war, the power to detain, search, and capture on the high seas the vessels of nations with which he is at peace. The justification of the usage which intrusts these powers to the belligerent may be found in the fact that the repression of the trade, so far as it militates against his interests, is abandoned to him, and is not a duty of the neutral.

It is perfectly immaterial in the view of international law whether the contraband goods are purchased in the neutral market by persons who resort thither for the purpose, or are shipped to order, or consigned for sale to persons in the belligerent country. It is immaterial whether the purchases are effected by agents of the belligerent government or by private speculators. It is immaterial whether the ownership of the vessels in which the transportation is effected is belligerent or neutral; the only differences are that, in the former case, the neutral supplies the merchandise alone, while in the latter he supplies both merchandise and carriage, hazarding the chances of detention and capture; in the former the cargo is liable to condemnation as enemy's goods in an enemy's ship; in the latter as contraband goods in the ship of a neutral. It is immaterial whether the ship which conveys them is chartered or owned by private persons or by the belligerent government itself, provided she be tion from various respectable quarters, that a considerable quantity of arms and military accouterments, which an agent of the French government has collected and purchased in this country, is now preparing to be exported from New York to France." "The secrecy with which a transaction of this nature is generally conducted, has rendered it impossible for the undersigned to procure precise proof of it. Entertaining, however, no doubt of the existence of the fact, he esteems it his duty to lay it immediately before the Executive Government of the United States, which he trusts will deem it more expedient (if any measures for the purpose can be devised) to prevent the execution of this contravention of the President's proclamation than to expose vessels belonging to its citizens to those dangers and difficulties which may result from the circumstance of their carrying articles of the description above mentioned." (Mr. Hammond to Mr. Jefferson, May 8, 1793.)-Appendix to British Case, vol. v, p. 241. Mr. Hammond's cautious language shows that he understood the effect of a procla mation of neutrality as calling attention to the existing prohibitions, not as creating new ones. The Government of the United States apparently do not understand this. He appears to have accepted Mr. Jefferson's answer without demur.

The minister of the Mexican Republic, in 1862, when Mexico was invaded by a French army, urged the American Government to prohibit the export of mules and wagons which French agents were purchasing for the use of the expedition. Mr. Seward refused, citing the following authorities:

Instructions to collectors of customs, issued by Alexander Hamilton, Secretary of the Treasury, August 4, 1793.

"The purchasing and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and stores, is free to all parties at war, and is not to be interfered with. If our own citizens undertake to carry them to any of these parties they will be abandoned to the penalties which the laws of war authorize."-(American State Papers, Foreign Relations, vol. 1, p. 141.)

Mr. Webster to Mr. Thompson, July 8, 1842.

"It is not the practice of nations to undertake to prohibit their own subjects from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it under the liabilities and penalties prescribed by the law of nations or particular treaties."-(Webster's Works, vol. 6, p. 452.)

employed only for carriage and not armed for war. Nor, again, does the proximity of a neutral port, whence the trade is carried on, to either belligerent country, make any difference in the duties of the neutral government. Nor does it make a difference that the coast or harbors of either belligerent are blockaded, more or less effectively, by the other. As the neutral government is under no obligation to prevent breaches of blockade and the export of contraband when the transactions are distinct, so it is under no obligation to prevent them when the transactions are combined.

It is necessary to state this principle firmly and clearly; otherwise it would be at the mercy of every powerful belligerent. There never was a war in which some special circumstances might not be pleaded and special reasons given for setting it aside in the interest of one party or the other.

ARMS AND MILITARY SUPPLIES PURCHASED BY THE UNITED STATES.

At the commencement and during the course of the war both belligerents resorted to Great Britain for supplies of arms and military material, of which both were in need. The wants of the Government of the Union appear to have been at first even more pressing than those of its adversaries, since the Government which preceded that of Mr. Lincoln had removed, it is said, considerable quantities of arms from the northern arsenals to those in the Southern States.

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On this subject the Secretary of War at Washington, in his

Mr. Webster's Instructions of July 8, 1842, cited in Gardner's Instructions, American International Law, page 552.

"That if American merchants, in the way of commerce, had sold munitions of war to Texas, the Government of the United States, nevertheless, were not bound to prevent it. and could not have prevented it without a manifest departure from the principles of neutrality."

President's message, 1st session 34th Congress-Franklin Pierce, President; William L. Marcy, Secretary of State.

"The laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or take munitions of war or soldiers on board their private ships for transportation; and although, in so doing, the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government."-(Appendix to British Case, vol. v, p. 332.)

The passage last cited proceeds as follows:

"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 France in transporting troops, provisions, and munitions of war to the principal seat of military operations, and in bringing home the 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 compromise our neutral relations with Russia."

That the United States still adhere to this principle was abundantly proved in the course of the recent war between France and Germany.

It is in the power, of course, of a neutral government to prohibit the exportation of contraband, if it think fit, and if such a prohibition be within the limit of its constitutional authority, but even such a prohibition gives no right to either belligerent. "Der Verkauf an und für sich allein kann zwar von einem neutralen staate selbst seinen Angehörigen untersagt werden; allein durch die Ueberschreitung dieses Verbotes macht man sich nur dem eigenen staate verantwörtlich; der kriegführende selbst hat seinerseits keine Befugniss die contravention zu ahnden."—(Heffter, section 161, fifth edition.)

report to the President on the 1st of July, 1861, made the following statements:

Arms and military

Previous to the early part of last year the Government had a supply of arms and munitions of war sufficient for any emergency; but through the bad supplies purchased faith of those intrusted with their guardianship, they were taken from by the United States their proper depositories and distributed through portions of the country expected to take part in the contemplated rebellion. In consequence of the serious loss thus sustained, there was available at the commencement of the outbreak a much less supply than usual of all kinds. But through the zeal and activity of the Ordnance Bureau the embarrassment thus created has been in a great measure overcome. As the capacity of the Government armories is not equal to the supply needed, even after having doubled the force of the Springfield armory, the Department found it absolutely necessary to procure arms to some extent from private manufacturers. Some patriotic American citizens resident in Europe, fearing that the country might not have a sufficient supply, purchased, on their own responsibility, through co-operation with the United States ministers to England and France, a number of improved cannon and muskets, and at your instance this Department accepted the drafts drawn to defray the outlay thus assumed. A perfect battery of Whitworth six 12-pounder rifled cannon, with 3,000 rounds of ammunition, the munificent donation of sympathizing friends in Europe, has also been received from England.'

In his report of 1st December in the same year, the same minister said:

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As stated in my last report, at the commencement of this rebellion the Government found itself deficient in arms and munitions of war, through the bad faith of those intrusted with their control during the preceding administration. The armory at Harper's Ferry having been destroyed to prevent its possession and use by the rebels, the Government was compelled to rely upon the single armory at Springfield and upon private establishments for a supply of arms. After having made contracts for arms with the private establishments in this country, it was deemed necessary by the President, to insure a speedy and ample supply, to send a special agent to Europe with funds to the amount of $2,000,000 to purchase more. I am gratified to state that he has made arrangements for a large number of arms, part of which have already been delivered. The remainder will be shipped by successive steamers until all shall have been received.2

A commission was appointed by the Government of the United States, in March, 1862, to audit the contracts made by the War Department for ordnance, arms, and ammunition, and in their report, which was laid before Congress, the following remarks occur on the steps taken to purchase arms abroad:

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First, as to foreign arms: it was of course absolutely necessary to resort to these in equipping within a few months more than 500,000 men, and it was impossible in all the workshops of Europe to have had arms manufactured as rapidly as our public necessities required. Under such circumstances prices naturally rose, and inferior (often second-hand) arms had to some extent to be purchased. But these difficulties were greatly aggravated by the lack of system which prevailed. The States and the General Government entered the market together as rival purchasers, and thus the members of the same national family bid directly against each other. The folly of this is the more remarkable when it is remembered that these arms bought by the States were, in fact, for the use of the General Government, and will no doubt, in the end, be paid for by it. The General Government itself employed numerous agents not acting in unison, and often becoming, therefore, competitors of each other. few of these made purchases directly for the Government: the greater number sprang up in the shape of "middle men," to whom, though not dealers in arms nor skilled in their value, contracts were awarded upon their own terms, only to be sublet to the actual importers. In regard to a considerable portion of these foreign arms, Government inspection was permitted in Europe before shipment, but so utterly inadequate and so incompetent was the force assigned to this duty that it became a mere empty form devoid of all utility or protection. Of this and other negligences and imprudences, the practical result has been that a large proportion of our troops were armed with guns of a very inferior quality; that tens of thousands of the refuse arms of Europe are at this moment in our arsenals, and thousands more still to arrive. Lord Lyons wrote to Lord Russell on the 4th of May, 1861: “Mr.

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Appendix to British Case, vol. vi, p. 151. 2 Ibid., p. 164.

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