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more in what the impartiality consists which a neutral power is obliged to observe, he says that “it solely relates to war, and includes two articles : 1. To give no assistance when there is no obligation to give it; nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war. I do not say 'to give assistance equally,' but to give no assistance;' for it would be absurd that a state should at one and the same time assist two nations at war with each other; and besides, it would be impossible to do it with equality. The same things, the like number of troops, the like quantity of arms, of stores, &c., furnished in different circumstances, are no longer equivalent succors."

It is therefore evident that, according to these principles, if the government of the United States permits the French army to take from this country whatever it may require to carry on hostilities against Mexico, it does not act with the impartiality which its character of neutral imposes upon it, even though it should concede to Mexico the same privilege. Among the authorities which served as a foundation for the honorable Secretary of the Treasury for adopting the decision referred to are found, in the first place, and which I consider as the principal one, the instructions which Mr. Alexander Hamilton communicated on ihe 4th of August, 1793, to the collectors of customs of the United States, in consequence of the proclamation which President George Washington had issued on the 22d day of April preceding, recognizing the state of war then existing between Austria, Prussia, Sardinia, Great Britain, and the Netherlands on the one part, and France upon the other, and declaring the neutrality of the United States in the same.

In these instructions Mr. Hamilton said (American State Papers, series of Foreign Affairs, vol. 1, page 141) that “the purchasing within and exporting

, from the United States, by way of merchandise, articles commonly called contraband, should not be interfered with ;" and, according to this principle, the purchase and exportation of the effects purchased by the French officers should not be permitted, inasmuch as they have not been made by way of merchandise, but, on the contrary, for the immediate and direct use of a belligerent army. It is well understood that the government of the United States would not be willing to prevent the sale of such articles to French merchants who would purchase them to speculate upon them by selling them to a third power, or, perhaps, to their own government, for the fear that the latter should occur, ought not to authorize a general prohibition, but that it should extend these principles to the purchase of the articles referred to by officers of the French army, and for the immediate use of the same army, is a matter which cannot be conceived of, because it is equivalent to laying aside neutrality, and to open the door to all nations that be at war, in which the United States are not a party, in order that, in exchange for a small profit, they may come to provide themselves here with whatever they may require to carry on hostilities.

The authorities of Mr. Webster, which are cited in the document annexed to the conmunication of the honorable the Secretary of the Treasury of the 20th of November last past, of which you are pleased to transmit me a copy, are in contrariety with the instructions of Mr. Hamilton, and there cannot be given to them, in my opinion, the same weight as to the latter, for the first are fragments of communications addressed by Mr. Webster, as Secretary of State of the United States, to Mr. Thompson, minister of the United States in Mexico, to justify the government of the United States from the complaints which that of Mexico made to it for the moral and material support which the first gave, at that time, to the insurgents of Texas. It is known that all the sympathies of the administration then existing were on the side of the insurgents, which caused it to encourage them in every way, in order to accomplish the enterprise in which they were engaged, while, at the same time, the United States called themselves neutrals in the contest. The principles laid down then by Mr. Webster had for their object to reconcile that neutrality with the aid given to

the insurgents; and assuredly, if the government of the United States should examine them now, when the circumstances are different, and when the administration is animated with a spirit of greater justice, it would not sustain them, nor would it be willing that foreign nations should adopt them as a basis in their relations with the United States, as it does not appear disposed to sustain, in this emergency, the principles which governed it then to recognize the independence of Texas much earlier than Mexico was disposed to make such a recog. nition.

There is an instance of a similar case in which the United States proceeded in accordance with the principles of Vattel, and the reasou which they had for it holds good with the same force in the present case Mr. Henry Wheaton, in the 16th

paragraph of chapter III, of part IV of his “ Elements of International Law,” referring to the principles of Vattel, which I have already cited, says: “ These principles were appealed to by the American government when its neutrality was attempted to be violated on the commencement of the European war of 1793, by arming and equipping vessels and enlisting men within the ports of the United States by the respective belligerent powers to cruise against each other. It was stated that if the neutral power might not, consistently with its neutrality, furnish men to either party for their aid in war, as little could either enrol them in the neutral territory.”

Applying this reasoning to the present case, it follows that the United States cannot, because of its neutrality, give to France arms, munitions of war, and other articles contraband of war, neither can it permit that the French army shall come to take them from the neutral territory.

Great Britain, which adopted the American doctrine in that which relates to the enlistment of troops in its territory by a belligerent power, has been more consistent, for it also adopted the consequences which are inferred from this principle; and when it declares itself neutral in the wars between other powers, it accompanies this declaration with the prohibition that the belligerents shall not supply themselves in their ports with articles contraband of war, unless that, by special treaties, she is under the obligation of extending them to both or either of the belligerents.

President Franklin Pierce, in his message to the thirty-fourth Congress of the United States, of the 1st of September, 1855, which is another of the authorities cited by the honorable the Secretary of the Treasury, whilst he considers as a violation of the neutrality of the United States the pretensions of any of the European powers then allied against Russia to enrol troops in the territories of these same States, follows the doctrine of Mr. Webster respecting the sale of articles contraband of war made by its citizens to any one of the belligerent powers. President Pierce forgot the condition that the sale be made by way of merchandise, considered as indispensable by Mr. Hamilton to make it lawful. He also says that there is no law prohibiting to the citizens of the United States the sale of articles contraband of war to either of the belligerent parties ; but if there be no such secondary law, there exists the natural tendency of the law of nations, which imposes such a prohibition upon the neutral powers as one of the circumstances inherent to neutrality. If the government should extend to Mexico the same principles which govern it in its relations with France, as little satisfactory as such conduct would be, because it would thus be to abandon neutrality and to furnish to the French army the means of transportation, without which it would have been obliged to remain inactive until these could arrive from Europe, giving time to the Mexican government to organize a more vigorous resistance, yet it would not have been to so great an extent as it was on refusing to Mexico the same facilities which are conceded to France.

At the commencement of February of the present year the Mexican consul at New York informed me that several merchants of that port were sending to Vera


Cruz vessels laden with provisions and other articles for the consumption of the allied army, which was then in that city. At a conference with which you favored me on the 13th of the said month of February I had the honor to inform you of these facts, and I took the liberty to suggest to you that, if the United States held the character of a neutral in the differences between Mexico and the allies, the federal government should forbid the exportation of articles contraband of war intended to give aid directly to one of the belligerents. You were pleased to reply to me that the United States did not recognize a state of war existing between Mexico and the allies. As there had been, you said, no declaration of war, they could not, for the same reason, be governed in their conduct by the rules of neutrals, for up to that time this government considered Mexico and the allies as friends, and not as belligerents. In view of such reasonable explanations, I desisted from my first suggestion, and, as was natural, I understood that the government of the United States would not object that Mexico should take from this country what she might need whilst the state of things then existing should continue; and provided that Mexico should be permitted to make use of this right, I would make no opposition to the exercise of the same being granted to the allies.

Shortly afterwards the circumstance arose that Mexico purchased some arms in New York, which the agent commissioned to make this purchase desired to ship to a Mexican port which the honorable the Secretary of the Treasury had closed to the commerce of the United States, in violation of the rights of Mexico and in contravention of the stipulations of the treaty of friendship, navigation, and commerce, which binds the United States to Mexico, as I had the honor to make known to you in the notes which I addressed you on the 23d of July and the 10th of September, 1861. The circumstance that, in accordance with the instructions of the honorable the Secretary of the Treasury, his permit was necessary, in order that the custom-house of New York might clear vessels to the said port, was the only cause of my application to the Treasury Department, soliciting extra officially this permit. Upon doing so I determined simply to make known that these arms were for Mexico and not for the insurgents of the United States, believing that this would be sufficient for the honorable the Secretary of the Treasury to grant the proper clearance. The aspect of the affairs of Mexico had then changed with respect to that in which it was in February last. The difficulties existing were then no longer between Mexico and the European allies, but between Mexico and France; and although the war existed in fact, it had not been declared, neither did I know that such a declaration, which had not been made, had been communicated to the government of the United States, nor that this government had taken official notice of such a war, which had begun like a filibustering enterprise, in contravention of the most trivial principles of the law of nations, and least of all did I know that this government intended to remain neutral in this war. Had I known this I should not have dared to inform it of a transaction which had been entered into to the loss of its rights as a neutral, nor much less to ask it to authorize it in violation of the duties which its neutrality imposed upon it. My duty would have been to advise the agent who came to purchase the arms to go and seek them elsewhere, for here they could not be obtained without loss to the rights of the United States, which I have ever been disposed to respect in the most scrupulous manner. The honorable the Secretary of the T'reasury at first showed himself willing to concede the permit asked for; he asked me for the list of the effects which were to be sent to Mexico, and, upon showing it to him, it appeared to him that the number, 36,000 muskets, was too great a one, and he said to me that he would only give the permit for exporting them in case that the honorable the Secretaries of the Navy and War should make no objection to the exportation of the arms. The honorable the Secretary of the Navy



made none, and the Secretary of War said that “he refused to relax the order previously issued forbidding the exportation of arms."

Neither the collector of the customs of New York, nor the honorable the Secretary of the Treasury, seemed to be aware of the order to which the honorable the Secretary of War referred; but his decision in the present case was sufficient for them to refuse in the most positive and absolute manner the clearance of the muskets purchased by Mexico. In vain did I endeavor to show to both the honorable Secretaries that these arms were Prussian muskets, flint-locks, subsequently altered to percussion locks, and of such a quality that the army of the United States would never use them. All my efforts were in vain ; and the impression which was left to me, as the result of my exertions, was that the government of the United States had opposed the departure of the arms, not because it believed that the occasion might arise when it would need them for its army, inasmuch as there was in the stores of New York a larger number and of a very superior quality-but to avoid complications with France, which, it was feared, would be consequent upon the clearance of the arms to a Mexican port. I was finally confirmed in this opinion upon learning that subsequently to my said exertions the honorable Secretary of the Treasury expressly notified the collector of the custom-house of New York on no account to clear the arms aforesaid, and that the same custom-house has cleared, subsequently to these exertions, arms to ports which are not Mexican ports. I felt, therefore, that there had not been towards me the sufficient frankness to tell me the true cause why the clearance of the arms purchased by Mexico was denied, which would have saved me many steps ; for, from the moment it should have been communicated to me that the United States were neutrals in the war between France and Mexico, and that the clearance of these arms was not compatible with the duties which their neutrality imposed upon them, I should have considered the affair as concluded, conceding all the reason to this government. It is, therefore, easy to understand how great was my surprise upon learning that when France came to purchase articles contraband of war in this country, when it has made of it the base whence it supplies its invading army, in a war in which I had been made to understand that the United States were neutrals, the honorable Secretary of the Treasury, relying upon authorities in my opinion totally insufficient, should have conceded to France the same thing which he so peremptorily refused to Mexico. For Mexico it is the same thing that to it should be denied what is permitted to France, by order of the honorable Secretary of War, or by the decision of any other honorable Secretary; she cannot enter into the examination of the reasons which may have caused such an order, and she can only see the palpable and incontrovertible fact that, whilst to France it is permitted to supply herself in the market of the United States with whatever she requires to carry ou her war against Mexico, without excepting the articles contraband of war, to Mexico is prohibited the exportation of the only article which she needed, and the only one she had purchased in this country. As I am considering the question under the point of view of the right only, and as I understand that the United States are neutrals in the war between Mexico and France, I refrain from entering into other considerations which would present the conduct of the United States in a light still more unfavorable. The gravity of the present case, which affects so directly the rights and interests of Mexico, causes me to believe that so soon as my government shall be informed of what has occurred in this respect, it will send me precise instructions by which to abide.

Then I shall again have the honor to communicate with you upon this same affair. For the present. I have only taken the liberty to lay before you the considerations which precede, because I do not desire that my silence be taken as an indication of acquiescence in the determination contained in your note, to which I reply.

I avail myself of this opportunity to renew to you, sir, the assurances of my very distinguished consideration.


Mr. Seward to Mr. Romero.

Department of State,

Washington, December 15, 1862. The undersigned, Secretary of State of the United States, has the honor to acknowledge the reception of the note which was addressed to him by his excellency Mr. M. Romero, chargé d'affaires of the republic of Mexico, on the 10th of December instant, in which Mr. Romero states his objections to the decision of this government which permits the clearance of vessels from New York, carrying cargoes of certain wagons and other merchandise purchased and designed, as Mr. Romero says, for the use of the French forces in Mexico. Mr. Romero assumes that this decision manifests partiality on the part of this government towards France.

The undersigned has the honor to inform Mr. Romero that the trade of the United States is regulated by treaties and laws which are equal in regard to France and to Mexico, and to all other nations, without any exceptions, whether they are mutually at peace or engaged in war; that whatever merchandise is allowed to be cleared for or on account of French subjects or of the French government, is equally allowed to be cleared for the citizens or for the government of Mexico, and for all other nations.

Mr. Romero builds his argument upon the fact that clearances of arms said to be designed for the use of the Mexican government were denied in its war with France, while clearances of wagons designed for the use of the French government in the same war are allowed.

Mr. Romero is respectfully informed that prohibition of the shipment of arms, in the case referred to, was a general prohibition, including all other nations as well as Mexico, on the ground of the military necessities of the United States, which, while engaged in suppressing a formidable insurrection, cannot consent that fire-arms of any kind shall be sent out of the country as merchandise.

For these reasons—first, because the government may need all such arms; and, secondly, that they might fall into the hands of the insurgents-neither the French, who are at war with Mexico, nor any other nation which is at peace with the United States, no matter what its condition or its situation, could now be allowed to export arms of any sort from this country. Mr. Romero implies, probably with truth, that wagons are as necessary and will be as useful to the French as fire-arms would be to the Mexicans. But the pertinency of the argument is not apparent, insomuch as the shipment of arms is denied to Mexico on the ground, not of want of them on her part as a belligerent, but on the ground of the military situation of the United States; and, on the other hand, the wagons are allowed to be shipped, not on the ground that France wants them as a belligerent, but on the ground that the military situation of the United States does not demand an inhibition.

The republic of Mexico enjoys the sincere friendship and good will of the United States, and they lament the war which has arisen between that republic and France. They are not, however, a party to the war, and since it has unhappily occurred, they can act in regard to it only on the principles which have always governed their conduct in similar cases. The trade of the United States, according to these principles, is left free to both nations, just as if they were at peace with each other, and no restrictions are imposed upon it to the favor or prejudice of either nation.

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