"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. Provision 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 circum. stances are presented in detail." Mr. Bayard, Sec. of State, to Mr. Smithers, June 1, 1885. MSS. Inst., China; As to exportation of coal as contraband, see Whart. Com. Am. Law, § 251; The following is taken from the proceedings of the Geneva tribunal (infra, § 402a): It was maintained in the American case that the proofs showed that the insurgent cruisers were permitted to supply themselves with coal in British ports in greater quantities and with greater freedom, and with less restrictions than were imposed upon the United States; and it was insisted that, in consequence of these facts, there was an absence of neutrality, which made those ports bases of hostile operations against the United States under the second rule of the treaty. On this point the award says that In order to impart to any supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character. It does not appear by the terms of the award that Great Britain is held responsible for the acts of any vessel solely in consequence of ille gal supplies of coal. The question is, therefore, a speculative one, so far as relates to this controversy. The opinions of the four arbitrators who signed the award furnish, however, the explanation of what they mean when they speak of "special circumstances of time, of persons, or of place." Mr. Adams says: I perceive no other way to determine the degree of responsibility of a neutral in these cases, than by an examination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons everything it touches. Even indifference may degenerate into willful negligence, and that will impose a burden of proof to relieve it before responsibility can be relieved. Count Sclopis says: I will not say that the simple fact of having allowed a greater amount of coal than was necessary to enable a vessel to reach the nearest port of its country constitutes in itself a sufficient grievance to call for an indemnity. As the lord chancellor of England said on the 12th of June, 1871, in the House of Lords, England and the United States equally hold the principle that it is no violation of the law of nations to furnish arms to a belligerent. But if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infraction of the second article of the treaty. Thus, for example, when I see the Florida and the Shenandoah choose for their fields of action, the one the stretch of sea between the Bahama Archipelago and Bermuda, to cruise there at its ease, and the other Melbourne and Hobson's Bay for the purpose, immediately carried out, of going to the Arctic Seas, there to attack the whaling vessels, I cannot but regard the supplies of coal in quantities sufficient for such services infraction of the second rule of Article VI. Mr. Stämpfli says of the Sumter: The permission given to the Sumter to remain and to take in coal at Trinidad does not of itself constitute a sufficient basis for accusing the British authorities of having failed in their duties as neutrals, because the fact cannot be considered by itself, since the Sumter both before and after that time was admitted into the ports of many other states, where it staid and took in coal, so that it cannot be held that the # * port of Trinidad served as a base of operations. * In the Franco-German war of 1870, Prince Bismarck earnestly remonstrated with Great Britain for permitting the export of coal to France. This remonstrance, however, was ineffectual. "When Prussia was in the same position as that in which Great Britain then found herself, her line of conduct was similar, and she found herself equally unable to enforce upon her subjects stringent obligations against the exportation even of unquestionable munitions of war. During the Crimean war, arms and munitions were freely exported from Prussia to Russia, and arms of Belgian manufacture found their way to the same quarter through Prussian territory, in spite of a decree issued by the Prussian Government, prohibiting the transport of arms coming from foreign states." 2 Halleck's Int. Law. (Baker's ed.), 258, note. France took the ground that coal was not contraband; ibid., 260. Neutral duties as to allowing belligerents to receive supplies of coal are discussed infra, §§ 398 ff.; Whart. Com. Am. Law, §§ 226, 241. It is certainly no breech of neutrality to sell coal for use on a belligerent steamer visiting the port of sale casually under stress of weather. But it would plainly be a breach of neutrality to establish a coaling depot to supply all steamers of any particular belligerent. Whart. Com. Am. Law, § 226. Infra, § 398. (2) AS TO PROVISIONS. "In one of your letters of March 13, you express your apprehensions that some of the belligerent powers may stop our vessels going with grain to the ports of their enemies, and ask instructions which may meet the question in various points of view, intending, however, in the mean time to contend for the amplest freedom of neutral nations. Your intention in this is perfectly proper, and coincides with the ideas of our own Government in the particular case you put, as in general cases. Such a stoppage to an unblockaded port would be so unequivocal an infringement of the neutral rights, that we cannot conceive it will be attempted. With respect to our conduct as a neutral nation, it is marked out in our treaties with France and Holland, two of the bellig. erent powers; and as the duties of neutrality require an equal conduct. to both parties, we should, on that ground, act on the same principles towards Great Britain. We presume that this would be satisfactory to her, because of its equality, and because she too has sanctioned the same principles in her treaty with France. Even our 17th article with France, which must be disagreeable, as from its nature it is unequal, is adopted, exactly, by Great Britain in her 40th article with the same power; and would have laid her, in a like case, under the same unequal obligations against us. We wish then that it could be arranged with Great Brit ain that our treaties with France and Holland, and that of France and Great Britain (which agree in what respects neutral nations) should form the line of conduct for us all, in the present war, in the cases for which they provide. Where they are silent, the general principles of the law of nations must give the rule. I mean the principles of that law as they have been liberalized in latter times by the refinement of manners and morals, and evidenced by the declarations, stipulations, and practice of every civilized nation. In our treaty with Prussia indeed we have gone ahead of other nations in doing away restraints on the commerce of peaceful nations, by declaring that nothing shall be contraband, for, in truth, in the present improved state of the arts, when every country has such ample means of procuring arms within and without itself, the regulations of contraband answer no other end than to draw other nations into the war. However, as nations have not given sanction to this im provement, we claim it, at present, with Prussia alone." Mr. Jefferson, Sec. of State, to Mr. Pinckney, May 7, 1793. MSS. Inst., Ministers. "Reason and usage have established that when two nations go to war, those who choose to live in peace retain their natural right to pursue their agriculture, manufactures, and other ordinary vocation, to carry the produce of their industry for exchange to all nations, bel ligerent or neutral, as usual, to go and come freely without inquiry or molestation, and in short, that the war among others shall be for them as if it did not exist. One restriction on their natural rights has been submitted to by nations at peace, that is to say, that of not furnishing to either party implements merely of war for the annoyance of the other, nor anything whatever to a place blockaded by its enemy. What these implements of war are, has been so often agreed and is so well understood, as to leave little question about them at this day. There does not exist perhaps a nation, in our common hemisphere, which has not made a particular enumeration of them in some or all of their treaties, under the name of contraband. It suffices for the present occasion to say that corn, flour, and meal are not of the class of contraband, and consequently remain articles of free commerce. A culture which, like that of the soil, gives employment to such a proportion of mankind, could never be suspended by the whole earth, or interrupted for them, whenever any two nations should think it proper to go to war. "The state of war, then, existing between Great Britain and France, furnishes no legitimate right to either to interrupt the agriculture of the United States or the peaceable exchange of its produce with all nations; and consequently the assumption of it will be as lawful hereaf ter as now, in peace as in war. No ground, acknowledged by the common reason of mankind, authorizes this act now, and unacknowledged ground may be taken at any time and all times. We see, then, a practice begun to which no time, no circumstances, prescribe any limits, and which strikes at the root of our agriculture, that branch of industry which gives food, clothing, and comfort to the great mass of the inhabitants of these States. If any nation whatever has a right to shut up, to our produce, all the ports of the earth except her own and those of her friends, she may shut up these also, and so confine us within our own limits. No nation can subscribe to such pretensions; no nation can agree, at the mere will or interest of another, to have its peaceable industry suspended and its citizens reduced to idleness and want. The loss of our produce, if destined for foreign markets, or that loss which would result from an arbitrary restraint of our markets, is a tax too serious for us to acquiesce in. It is not enough for a nation to say we and our friends will buy your produce. We have a right to answer that it suits us better to sell to their enemies as well as their friends. Our ships do not go to France to return empty. They go to exchange the surplus of one produce which we can spare for surpluses of other kinds which they can spare and we want; which they can furnish on better terms and more to our mind than Great Britain or her friends. We have a right to judge for ourselves what market best suits us, and they have none to forbid us the enjoyment of the necessaries and comforts which we may obtain from any other independent country." Same to same, Sept. 7, 1793; ibid. 1 Wait's St. Pap., 393. See Mr. Jefferson to "If, by a circuit of construction, food can be universally ranked among military engines, what article, to which human comfort of any kind can be traced, is not to be registered as contraband? In some peculiar circumstances it must be confessed corn, meal, and flour are so; as in a blockade, siege, or investment. There the exclusion of them directly and obviously goes to the reduction of the place; but neutral commerce is, in this instance, infringed only where the exclusion, if continued without intermission, would be decisive in its effect." Mr. Randolph, Sec. of State, to Mr. Hammond, May 1, 1794. 1 Am. St. Pap. (For. Rel.), 450. "Before the treaty with Great Britain her cruisers captured neutral vessels bound to France with provisions. She asserted that in certain cases provisions were contraband of war, consequently that she might lawfully capture and confiscate such provisions. We opposed the principle and the practice. Britain insisted on her right. In this dilemma it was agreed by the treaty that whenever provisions becoming contraband by the law of nations should be captured, they should be paid for with a reasonable mercantile profit. This stipulation, without admitting the principle, by securing the American merchants from loss in case of capture, would certainly tend to promote rather than to discour age adventures in provisions to France." Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. MSS. Inst., Ministers. "Certain provisions are not allowed, by the consent of nations, to be contraband but where everything is so, as in the case of a blockaded town, with which all intercourse is forbidden." Mr. Jefferson to Mr. Everett, Feb. 24, 1823. 7 Jeff. Works, 270. See 7 Am. Law "As a means of annoyance, this international prohibition against carrying to a country engaged in hostilities articles useful for military purposes is practically of little value to its enemy. It found its way into the code of nations when the means of supply were much more restricted than at present, and before the progress of improvement had placed it in the power of almost every nation to provide itself with whatever it may want, either for offensive or defensive operations. "There is no accepted enumeration of the articles coming within the prohibition. And to add to the dangers of collision, the principle by which they are to be tested is so loosely defined that it is practically of little use, but to furnish a pretext when one is wanting, to enable parties at war to enlarge the contraband list at their pleasure. Some of the later and approved writers upon the law of nations, as Hautefeuille and Ortolan, object to this power of extension ad libitum, and the former particularly confines the list to objects of first necessity for war, and which are exclusively useful in its prosecution, and which can be directly employed for that purpose without undergoing any change-that is to say, to arms and munitions of war." Mr. Cass, Sec. of State, to Mr. Mason, June 27, 1859. MSS. Inst., France. "I have followed with peculiar interest the European discussion relating to the French declaration making rice contraband of war. |