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while wares which could be of service to belligerents have been allowed to pass uninvestigated.
The letter of Lord Lyons was immediately submitted to the Secretary of the Treasury for his consideration. That officer, upon examining the case, communicated a note to this department, in which he stated that the restrictions upon the exportation of coal had been enforced by the collector under instructions of the treasury, of the 18th of April, 1862, alike upon domestic and foreign shipping clearing to ports north of Cape St. Roque and west of the fifteenth degree of longitude east; and the treasury would, with pleasure, remove all restrictions upon trade when the existing imperative necessity which had induced them should cease. The Secretary of the Treasury, with his note, communicated to the undersigned a report upon the general subject from the collector of the customs at New York, in which that officer stated that, in the exercise of the discretion devolved upon him, he had prohibited the shipment of coals, dry goods, shoes, quinine and other drugs, tin ware, munitions of war, and sundry other articles, to Nassau and the West Indies, and other foreign ports, when he had reason to suspect that they were intended, by individual enterprise, or the special contracts of British subjects, directly to contribute to the welfare of the enemies of the United States; and, in regard to the statement of Mr. Edwards, that articles of ordinary export have, at times, been prohibited, while wares which could only be of service to a belligerent were allowed to pass unquestioned, the collector answered that he had no data in his possession which could be referred to for the facts thus charged.
The note of the Secretary of the Treasury and the report of the collector of customs at New York were promptly communicated by the undersigned to the honorable Mr. Stuart, who transmitted the same to his government.
The note of Mr. Stuart which is now under consideration presents, as the undersigned is informed, the views of her Majesty's government upon the subject of the correspondence which has been briefly but, as is believed, fairly recited. By that note the undersigned is informed that her Majesty's government regard the subject as one of great importance, and that, however desirous of making every allowance for the difficulties of the position of the United States that government may be, it is impossible for them to acquiesce in the system of interference with the legitimate trade of Great Britain which is now practiced by the United States authorities, such interference being not only in contravention of the treaties existing between Great Britain and the United States, but also the established principles of international law.
Mr. Stuart then, upon the documents which have been recited, states the case which is thus pronounced to be inadmissible, as follows, namely : “ It appears that British vessels lawfully trading between New York and the Bahamas are in some instances refused clearances at New York, and in others, after having been regularly cleared, with full knowledge of the United States authorities of the articles on board, are detained and searched, and are required either to reland portions of their cargoes or to give bonds that no part of the cargo shall at any intermediate time be used by the enemies of the United States. And these proceedings are not claimed to be prescribed by any general law or regulation of commerce, but are avowed to be wholly discretionary with the collector of the customs, to be enforced by him whenever he shall entertain the suspicion and belief that the real destination of the cargo is, mediately or immediately, to some port in the possession of the enemies of the United States, or if he shall be satisfied that there is imminent danger that the goods, wares, and merchandise, of whatever description, loaded on such vessels will fall into the possession or under the control of the insurgents. The collector of the customs, in his report of the 12th of June, states that, in the exercise of the discretion devolved upon him as an officer of the government of a sovereign people, he had prohibited the shipment of coals and dry goods and shoes, and quinine and other drugs, and tin-ware, and munitions of war, and sundry other articles, to Nassau and the West Indies, and other foreign ports where he had reason to suspect that they were intended, by individual enterprise, or the special contracts of British subjects, to contribute directly to the welfare of the enemies of the United States."
Upon the facts thus assumed Mr. Stuart proceeds to argue the case, saying that her Majesty's government cannot call to mind any principle of international jurisprudence, nor any precedent approved by international law, to justify such interference with the trade of neutrals. That trade between Great Britain and the United States, at least as to ports and places in the undisturbed possession of the United States, is not in any degree affected by the state of war in which the United States are engaged; and, moreover, that trade between Great Britain and an enemy of the United States (the former preserving a strict neutrality or indifference between the belligerent parties) can be affected only by the international law of blockade. Mr. Stuart proceeds to remark that the United States will admit that shipments similar to those now subjected to interference from New York to Nassau and other British ports, if made in time of peace, could not be prohibited without giving manifest cause of just complaint to Great Britain, especially when such shipments remain open to other nations not having with the United States treaties of a more favorable nature. It follows, therefore, Mr. Stuart says, that to prohibit such shipments to British subjects, while permitting them to the subjects of other nations, is to assume a state of quasi hostility to Great Britain, on account of geographical or other circumstances supposed to mix her up with the interests of the enemy of the United States. Mr. Stuart proceeds to remark that the doctrine assumed by the United States authorities would seem to be that goods which ordinarily may be lawfully shipped from the United States by British subjects to certain British ports in British bottoms may be embargoed if, in the judgment of an inferior officer, such as the collector of a port, there is imminent danger that on their passage to the British port the enemy will unlawfully seize them, or that, having safely arrived at that port, they may with greater facility be exported thence to the enemy, or that they may in any way fall into the possession of or under the control of the enemy. After declaring that he is instructed to say that her Majesty's government cannot assent to such a doctrine, Mr. Stuart observes that Great Britain has declared her neutrality in the contest now raging between the United States government and the so-called Confederate States, and that she is consequently entitled to the rights of neutrals and to insist that her commerce shall not be interrupted except upon the principles which ordinarily apply to neutrals; that these principles authorize nothing more than the maintenance of a strict and actual blockade of that enemy's ports, by such force as shall at least make it evidently dangerous to attempt to enter them. But the fact of a neutral ship having succeeded in evading a blockade affords no ground for international complaint, nor is it an offence which can be punished upon any subsequent seizure of the ship after she has successfully run the blockade. Mr. Stuart adds that her Majesty's government consider that it would be introducing a novel and dangerous principle in the law of nations if belligerents, instead of maintaining an effective blockade, were to be allowed, upon mere suspicion or belief, well or ill founded, that certain merchandise could ultimately find its way into the enemy's country, to cut off all or any commerce between their commercial allies and themselves; that this would be to substitute for the effectual blockade recognized by the law of nations a comparatively cheap and easy method of interrupting the trade of neutrals. But when this illegal substitution for such a blockade is applied to a particular nation, on account of the geographical position of its territories, or for other reasons, while the same ports of the belligerent are open for like exports to other nations, the case assumes a still graver complexion. Mr. Stuart adds that, although the question raised by the supposed interference with the trade of Great Britain is as to what are the international obligations of the United States towards Great Britain as a neutral country, and not as to what may be at any given moment the local laws of the United States, which laws cannot overreach treaty rights, it may not be amiss to point out that the system of interference complained of is apparently not in conformity even with the terms of the act of Congress under which the treasury instructions were issued ; that that act authorizes the refusal of clearances to foreign vessels only when the Secretary of the Treasury shall have satisfactory reasons to believe that the goods or some part of them are intended for ports or places in possession or under control of insurgents against the United States, and authorizes bonds to be taken only to secure the delivery of the cargo at the destination for which it is cleared, and in order that no part thereof should be used in affording aid or comfort to any person or parties in insurrection against the authority of the United States.
Mr. Stuart then argues that if this latter condition is to be understood, as in reasonable construction it must, of any use preceding delivery at the specified destination, it may not be objectionable, but if meant to make the master and owner responsible for any subsequent use of the articles constituting the cargo after they have passed beyond their power of control, it is unreasonable and perfectly inadmissible. Mr. Stuart further remarks that, with respect to the apprehension of imminent danger that goods, &c., may fall into the possession or under the control of the insurgents, it may also be observed that the act of Congress appears to contain no provisions applicable to any exports by sea from the United States, the third section which relates to that subject being strictly confined to importations into any part of the United States, and to transportation upon any railroad, turnpike, or other road or other means of transportation within the United States. Therefore (Mr. Stuart remarks) it would appear that what has been done with respect to this point is not only contrary to the obligations of treaties and of international law, but also beyond the special and extraordinary enactments prepared by Congress itself. Mr. Stuart concludes that the President cannot expect that Great Britain should allow British trade with her own colonies, by way of the United States, or the trade between her own colonies and the United States, to be fettered by restrictions and conditions inconsistent with treaties between the United States and Great Britain, and repugnant to international law, and that therefore her Majesty's government expect that the President, in the exercise of his discretion, will prohibit the imposing of all such restrictions and conditions as have thus been complained of.
The undersigned regrets that Mr. Stuart, while so steadily insisting that the proceedings of which he complains are in contravention of international law, has not thought it important to favor the undersigned with references to the particular principles or maxims of that law which are thus assumed to be infringed. This omission is the more regretted because the examination of authorities made by the undersigned has failed in bringing those principles and maxims into view. Mr. Stnart has equally omitted to indicate the particular treaty obligations of the United States which he claims have been infringed. The undersigned, however, finds in the convention to regulate the commerce between the United States and his Britannic Majesty, which was concluded on the 3d day of July, 1815, and which was renewed by the convention of the 6th August, 1817, which, in the absence of reference by Mr. Stuart, are assumed to be those to which Mr. Stuart alludes. The first of these is in the words following:
ARTICLE 1. There shall be, between the territories of the United States of America and all the territories of his Britannic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come, with their ships and cargoes, to all such places, ports, and rivers in the territories aforesaid to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any part of said territories respectively; also to hire and occupy houses and warehouses for the purposes of their commerce, and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively.
Article 2. No higher or other duty shall be imposed on the importation into the United States of any articles, the growth, produce, or manufacture of his Britannic Majesty's territories in Europe, and no higher or other duties shall be imposed on the importation into the territories of his Britannic Majesty in Europe of any articles, the growth, produce, or manufacture of the United States, than are or shall be payable on the like articles, being the growth, produce, or manufacture of any other foreign country; nor shall any higher or other duties or charges be imposed in either of the two countries on the exportation of any articles to the United States, or to his Britannic Majesty's territories in Europe, respectively, than such as are payable on the exportation of the like articles to any foreign country. Nor shall any prohibition be imposed on the exportation or importation of any articles, the growth, produce, or manufacture of the United States, or of his Britannic Majesty's territories in Europe, to or from the said territories of his Britannic Majesty in Europe, or to or from the said United States, which shall not equally extend to all other nations.
By enactments of the legislatures of the two countries, the British colonies are brought within the effect of the stipulations in these conventions.
Having thus, as far as possible, established the standard by which the proceedings complained of are to be tried, the undersigned proceeds to examine those proceedings themselves.
On the 20th of May, 1862, the Congress of the United States enacted a law the first three sections of which are as follows:
“ SECTION 1. That the Secretary of the Treasury, in addition to the powers conferred upon him by the act of the 13th of July, 1861, be, and he is hereby, authorized to refuse a clearance to any vessel or other vehicle, laden with goods, wares, or merchandise, destined for a foreign or domestic port, whenever he shall have satisfactory reasons to believe that such goods, wares, or merchandise, or any part thereof, whatever may be their ostensible destination, are intended for ports or places in possession or under control of insurgents against the United States; and if any vessel or other vehicle, for which a clearance or permit shall have been refused by the Secretary of the Treasury, or by bis order as aforesaid, shall depart or attempt to depart for a foreign or domestic port without being duly cleared or permitted, such vessel or other vehicle, with her tackle, apparel, furniture, and cargo shall be forfeited to the United States.
" Sec. 2. That whenever a permit or clearance is granted for either a foreign or domestic port it shall be lawful for the collector, if he deem it necessary under the circumstances of the case, to require a bond to be executed by the master or the owner of the vessel in a penalty equal to the value of the cargo, and with sureties to the satisfaction of said collector that the said cargo shall be delivered at the destination for which it is cleared or permitted, and that no part thereof shall be used in affording aid or comfort to any person or parties in insurrection against the authority of the United States.
“ Sec. 3. That the Secretary of the Treasury be, and he is hereby, further empowered to prohibit and prevent the transportation on any vessel, or upon any railroad, turnpike, or other road or means of transportation within the United States, of any goods, wares, or merchandise of whatever character, and whatever may be the ostensible destination of the same, in all cases where there shall be satisfactory reason to believe that such goods, wares, or merchandise are intended for any place in the possession or under the control of the insurgents against the United States, or that there is imminent danger that such goods, wares, or merchandise will fall into the possession or under the control of such insurgents; and he is further authorized, in all cases when he shall deem it expedient so to do, to require reasonable security to be given that the goods, wares, or merchandise shall not be transported to any place under the insurrectionary control, and shall not in any way be used to give aid or comfort to such insurgents; and he may establish all such general or special regulations as may be necessary or proper to carry into effect the purposes of this act; and if any goods, wares, or merchandise shall be transported in violation of this act, or of any regulation of the Secretary of the Treasury established in pursuance thereof, or if any attempt shall be made so to transport, then all goods, wares, and merchandise so transported or attempted to be transported shall be forfeited to the United States.”
After considering the arguments of Mr. Stuart in the most careful manner, it is not apparent to the undersigned that they invalidate the act of Congress, the substance of which has been recited. By the law of nations every state is sovereign over its own citizens and strangers residing within its limits, its own productions and fabrics, and its own ports and waters, and its high, ays, and, generally, within all its proper territories. It has a right to maintain that sovereignty against sedition and insurrection by civil preventives, and penalties, and armed force, and it has a right to interdict and prohibit, within its own boundaries, exportation of its productions and fabrics, and the supplying of traitors, in arms against itself, with material and munitions, and any other form of aid and comfort. It has a right, within its own territories, to employ all the means necessary to make these prohibitions effective. It does not appear to the undersigned that the United States have surrendered this right by the convention between themselves and Great Britain which has been recited. It is true that, by the first article of the convention of 1815, British merchants have liberty fully and freely to come with their ships and cargoes into the ports, rivers, and places within the territories of the United States, and to be protected in their commerce there, but this right is expressly restricted to the ports, rivers, and places only into which other foreigners are permitted to enter, and in which they are permitted to reside and trade, and they are, moreover, expressly declared, while entering, residing, and trading in such ports, rivers, and places, to be subject to the laws and statutes of the two countries. So, by the third article of the convention of 1815, it is stipulated that prohibitions shall not be imposed on the exportation or importation of any articles the growth, produce, or manufacture of either country; this stipulation, however, is not absolute, but only a stipulation that any such prohibition shall extend equally to all other nations as well as Great Britain. The law of Congress seems to be free from the special objections which are raised by Mr. Stuart. It does not confine its prohibitions or its requirements to British vessels trading between New York and the Bahamas, but applies them to all vessels of all uations, including the United States, wherever trading, whether with the Bahamas or with any other part of the world. The prohibitions and requirements are not uncertain as to the authority which prescribes them or the form of the prescription, but they are declared and promulgated in solemn enactment by the Congress of the United States. The conditions on which the prohibitions and requirements are suspended are not left to capricious suspicions or beliefs, but they are dependent on satisfactory evidence of ascertainable facts. They involve no question of neutral rights, because no neutral has or can have a right more than any citizen of the United States to do an act within their exclusive jurisdiction which is Prohibited by the statutes and laws of the country. The act has nothing to do with the blockade of the insurrectionary ports, because it confines its prohibitions and requirements to transactions occurring, and to persons residing or being