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The argument of the Secretary of the Treasury, which has been already submitted to Mr. Romero, renders it unnecessary to say more to elucidate the settled and traditional policy of the country. It is not easy to see how that policy could be changed so as to conform to the views of Mr. Romero, without destroying all neutral commerce whatsoever. If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to respect it as much as the United States. Commerce, in that case, instead of being free or independent, would exist only at the caprice of war.
The undersigned, in thus expressing to Mr. Romero the views of this government upon the question which Mr. Romero has submitted, does not at all desire to conclude him from the further presentation of the subject, which he promises to make after he shall have received the instructions upon the subject from his government.
The undersigned avails himself of this occasion to offer to Mr. Romero a renewed assurance of his high consideration.
Señor Don MATIAS ROMERO, &c., &c., &c.
WILLIAM H. SEWARD.
Mr. Romero to Mr. Seward.
MEXICAN LEGATION IN THE UNITED STATES OF AMERICA,
Washington, December 20, 1862.
The undersigned, chargé d'affaires of the United Mexican States, has had the honor to receive the note which the honorable William H. Seward, Secretary of State of the United States of America, was pleased to address to him on the 15th of the present month, in reply to the communication of the undersigned of the 10th instant, in which he stated the reasons which caused him to consider as partial in favor of France the conduct followed by the government of the United States in permitting the emissaries of the French army to purchase and export from the ports of this country whatever that army requires to carry out the military operations against Mexico, in which it is engaged, while at the same time the same privilege has been denied to the Mexican republic.
In his note referred to, the honorable Secretary of State is pleased to inform the undersigned 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 exception, whether they are mutually at peace or engaged in war." The undersigned was not unaware that the United States have the obligation to regulate their trade with friendly nations, by the stipulations to which they have bound themselves in the treaties which bind them to these nations, and he precisely had these considerations present when he wrote his note of the 10th instant, and in it he only proposed to himself to exact from the government of the United States the fulfilment of a duty which the United States contracted towards Mexico, in the treaty of the 5th of April, 1831, at present in force between both powers. The obligation imposed by said treaty upon the two contracting governments appeared so clear to the undersigned that he did not deem it necessary to remind the honorable Secretary of State of the articles in which it is contained; but inasmuch as he is informed that the trade of the United States is regulated by treaties, he deems it his duty to be more precise upon asking the fulfilment of the stipulations of these treaties.
Article 16th of the treaty of the 5th of April stipulates that "it shall be lawful for the citizens of the United States of America and of the United Mexican States, respectively, to sail with their vessels with all manner of security and liberty, no distinction being made who are the owners of the merchandise laden thereon, from any port to the places of those who now are or may hereafter be at enmity with the United States of America or with the United Mexican States. It shall likewise be lawful for the aforesaid citizens, respectively, to sail with their vessels and merchandise, before mentioned, and to trade with the same liberty and security from the places, ports, and havens of those who are enemies of both or either party without any opposition or disturbance whatsoever, not only directly from the places of the enemy, before mentioned, to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same government or under several."
So ample a liberty of trading is found shortly after wisely restricted in article 18th, which says: "This liberty of commerce and navigation shall extend to all kinds of merchandise, excepting those only which are distinguished by the name of contraband of war."
If it then appears that the articles purchased in the United States by the emissaries of the French army, and carried to Vera Cruz in vessels of the United States, are of the character of those called contraband of war, it is indubitable that the commerce and navigation of such articles are unlawful, agreeably to the stipulations of the treaty which binds the United States to Mexico.
The articles referred to have consisted principally of mules and wagons, and to these the undersigned exclusively referred in his last note upon the subject. The said 18th article of the treaty of the 5th of April enumerates the articles prohibited which are comprehended under the qualification of contraband of war, and in the third section it mentions expressly horses with their furniture; and the fourth terminates by saying, "or of any other materials manufactured, prepared, and formed expressly to make war by sea or land."
The undersigned deems it altogether unnecessary to make any effort to show that the mules as well as the wagons which form the means of transportation, without which the military operations are impossible, are included among the articles which the treaty enumerates as of the character of contraband of war.
From what has been manifested, it appears that Mexico has not thought of perscribing to the United States what merchandise they may sell to French subjects, and what are those they cannot sell to them, as the honorable Secretary of States seems to have understood it.
It (Mexico) has only desired that the United States should comply with one of the obligations which the treaty which binds them to Mexico imposes upon them, and that they do not permit a trade which the treaty referred to declares to be illegal. This just claim is exactly the same which the government of the United States has been making for several months upon the British government, and the undersigned cannot have been less than greatly surprised upon seeing that what this government deems it just to exact from that of Great Britain, it should not deem it just to concede to that of Mexico. As the despatches upon which the opinion of the undersigned is founded are familiar to the honorable Secretary of State, he abstains from citing the precise text of them, which have been recently published by the Department of State with the President's message of the 1st instant. In adopting this course, the undersigned has been also governed by the desire of not extending too much the present note; but if the honorable Secretary of State should question this assertion, the undersigned will have the honor to further discuss this subject more lengthily hereafter in another communication.
The undersigned cannot consider that the general order which prohibits the exportation of arms from the United States is the cause that the clearance of those purchased by Mexico should have been denied; first, because the date of the only general order of prohibition which has come to his knowledge and to that of the merchants of New York is subsequent to that refusal; secondly, because subsequently to that refusal, arms have been cleared for other ports which are not Mexican ports; thirdly, because the honorable Secretary of the Treasury issued an order to the collector of the custom-house of New York expressly prohibiting the clearance of the arms referred to, which would have been entirely useless if there had been a general order forbidding such clearances; and fourthly, because the custom-house of New York granted the clearance of the same arms purchased by Mexico, when it was asked for Quebec; and when this government received notice that they would be shipped thence to a Mexi can port, it ordered them to be detained and returned to New York.
The honorable Secretary of State will understand that it is not the object of the undersigned to solicit that the clearance of arms to Mexico be permitted. He believed that Mexico had the right to purchase them and export them from the United States before this government should have recognized the state of war existing between Mexico and France; but from the moment when it declared itself neutral in such war, he only asks that the same principles be applied to France which with so much rigor were applied to Mexico, even before such declaration had been made; for should it not do so, the undersigned will find himself under the painful necessity of considering the conduct of the government of the United States as but little friendly towards Mexico, and as contrary to the obligations which their character of a neutral imposes upon them. The undersigned avails himself of this opportunity to renew to the honorable William H. Seward, Secretary of State of the United States, the assurances of his most distinguished consideration.
Hon. WILLIAM H. SEWARD, &c., &c., &c.
Mr. Seward to Mr. Romero.
DEPARTMENT OF STATE,
Washington, January 7, 1863.
The undersigned, Secretary of State of the United States, has the honor to acknowledge the reception of the note of his excellency, Mr. Romero, chargé d'affaires of the republic of Mexico, which bears date of December 20, and relates to the subject of the clearances of certain articles of merchandise at the city of New York, alleged by Mr. Romero to have been made on account of French subjects, for the use of the French government in its war with Mexico. In the note which the undersigned addressed to Mr. Romero on this subject on the 15th of December last, and also in an exposition of the same subject which was made by the Secretary of the Treasury, and which was submitted to Mr. Romero, it was explained that the clearances of which he complains were made in conformity with the laws of the United States, and with the practical construction of those laws which has prevailed from the foundation of this government—a period which includes wars, more or less general, throughout the world, and involving many states situated on the American and European continents.
The undersigned, after the most careful reading of Mr. Romero's note, is unable to concede that the government of the United States has obliged itself to prohibit the exportation of mules and wagons, for which it has no military need, from its ports, on French account, because, being in a state of war and
needing for the use of the government all the fire-arms made and found in the country, it has temporarily forbidden the export of such weapons to all nations. Nor is it perceived how the treaty between the United States and Mexico, to which Mr. Romero refers, bears upon the question, since the United States have not set up, or thought of setting up, any claim that Mexico shall be required to admit into her ports any articles of merchandise contraband of war which may be exported from the United States on French or any other account.
The undersigned is equally unable to perceive the bearing of Mr. Romero's allusions to the correspondence which has occurred between this government and that of Great Britain, in which complaints have been made by the United States that Great Britain wrongfully and injuriously recognized, as a public belligerent, an insurrectionary faction which has arisen in this country; has proclaimed neutrality between that faction and this government; and has suffered armed naval expeditions to be fitted out in British ports to depredate on the commerce of the United States in violation of, as was believed, the Queen's proclamation and of the municipal laws of the United Kingdom.
The undersigned avails himself of this occasion to renew to Mr. Romero the assurances of his most distinguished consideration.
Señor Don MATIAS Romero,
WILLIAM H. SEWARD.
Chargé d'Affaires of the Mexican Republic, Washington, D. C.
Mr. Romero to Mr. Seward.
MEXICAN LEGATION IN THE UNITED STATES of America,
Washington, January 14, 1863.
The undersigned, chargé d'affaires of the United Mexican States, has had the honor of receiving, to-day, the note which, under date of the 7th instant, the Hon. William H. Seward, Secretary of State of the United States of America, was pleased to address to him in regard to the clearance, from ports of the United States, of articles contraband of war, purchased by emissaries of the French army invading Mexico, for the use of that army.
Although the undersigned, in compliance with his duty, has left the determination of this delicate affair to his government, as he has informed the honorable Secretary of State, he thinks he is bound to make some observations which occur to him, in view of the argument contained in the note that he has just received from the Department of State of the United States.
The honorable Secretary of State says that he has not been able to perceive what congruency there is between the articles mentioned by the undersigned in his note of December 20, 1862, of the treaty which binds Mexico and the United States to each other, and the present question, "since the United States have not set up, or thought of setting up, any claim that Mexico shall be required to admit into her ports any articles of merchandise contraband of war which may be exported from the United States on French, or any other, account." As, in the opinion of the undersigned, there can be no doubt that the present question is regulated by the stipulations which have been mentioned, he requests the honorable Secretary of State to permit him again to refer to them.
The undersigned has maintained that the exportation from the United States of articles contraband of war, purchased by emissaries of the French army invading Mexico for the use of that army, is illegal according to the stipulations of the treaty of friendship, commerce, and navigation concluded between Mexico and the United States on the 5th of April, 1831. Article 16 declares legal the most ample liberty of commerce and navigation between the two countries, and
article 18 provides that such liberty of navigation and commerce is not extended to articles contraband of war. If, therefore, the traffic in these articles is illegal, it is the duty of the government of the United States not to authorize it; and in granting to it the same liberty and the same franchises as to the traffic in articles of lawful commerce, this government fails to comply with one of the obligations imposed on it by said treaty.
Nor has the honorable Secretary of State discovered any similarity between this case and that which appears in the recently published correspondence between this government and that of Great Britain, to which the undersigned referred in his said note of the 20th of December last, expressing his surprise that the government of the United States should deem it just to demand from the government of Great Britain what it is unwilling to concede to that of Mexico. It is true that what the United States have chiefly complained of against the British government is the fitting out at and sailing from British ports of naval expeditions organized by the insurrectionary States, with which the United States are now at war; but this government has not limited itself to asking the British government not to permit the fitting out and sailing of such expeditions; it has gone further. It has demanded that it should not permit the purchase and exportation from British ports of articles contraband of war intended for insurrectionary States, which is exactly what the undersigned has thought he had a right to demand of this government.
Lord Russell, in replying on the 10th of May, 1862, to a note which on the 8th of the same month had been addressed to him by the minister of the United States accredited near the British government, in which he had proposed that the statute of George IV, of 3d July, 1819, which prohibits the enlistment of British subjects in armies of belligerent powers, when Great Britain is neutral, might be amended, said what will be found on page 93 of the diplomatic correspondence annexed to the annual message of the President of the United States of the 1st of December, 1862, which is entirely the same position in which the government of the United States has desired to place itself with respect to Mexico, and which is as follows: "The foreign enlistment act is intended to prevent the subjects of the crown from going to war when the sovereign is not at war. * * * In these cases (enlistment in a belligerent army and the fitting out of vessels) the persons so acting would carry on war, and thus might engage the name of their sovereign and of their nation in belligerent operations. But owners and freighters of vessels carrying warlike stores do nothing of the kind. If captured for breaking a blockade or carrying contraband of war to the enemy of the captor, they submit to capture, are tried, and condemned to lose their cargo." * * *
Mr. Adams replied to Lord Russell on the 12th of the said month of May, (page 94,) as follows: "The position which I did mean to take is this: that the intent of the enlistment act, as explained by the words of its preamble, was to prevent the unauthorized action of subjects of Great Britain, disposed to embark in the contests of foreign nations, from involving the country in the risk of a war with these countries. This view of the law does not seem to be materially varied by your lordship. When speaking of the same thing you say that the law applies to cases where 'private persons so acting would carry on war, and thus might engage the name of their sovereign and of their nation in belligerent operations.' It is further shown by that preamble, that that act was an additional act of prevention, made necessary by experience of the inefficiency of former acts passed to effect the same object.
"But it is now made plain that whatever may have been the skill with which this latest act was drawn, it does not completely fulfil its intent, because it is very certain that many British subjects are now engaged in undertakings of a hostile character to a foreign state, which, though not technically within the strict letter of the enlistment act, are as much contrary to its spirit as if they