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 belligerent 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 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. [50] 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 proclamation 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. [51] 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 on 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 Befiigniss die contravention zu ahnden."-(Heffter, section 161, fifth edition.) report to the President on the 1st of July, 1861, made the following statements: Previous to the early part of last year the Government had a supply of arms and Arms and military 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 are 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 cooperation with the United States ministers to England and France, a number of improved caunon and muskets, and at your instance this Department accepted the drafts drawn to defray the outlay thus assumed. A perfect battery of Whitworth six 12pounder 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: * * 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. 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: 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. A 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 Russe'l on the 4th of May, 1861: “Mr. * * 1 Appendix to British case, vol. vi, p. 151. Seward said to me on the 1st instant that perhaps he ought to have told me before that the United States Government had sent agents to England to purchase arms. He added that the agents would go on to France for the same purpose." It will be seen that, in the report of Captain Huse, who is stated to have been the confederate agent sent to Europe for a similar purpose, be mentions the United States agents and the agents of individual Northern States as his most formidable competitors. "Their orders," he says, "appear to have been unlimited, both as regards price. [52] and quantity, and they paid cash in every instance. Further on he mentions that "the United States agent, in this case the minister, Mr. Dayton, has purchased, within a few days, 30,000 old flint-lock muskets, which are to be altered before they are sent to the United States." The purchases of small arms and other military stores in England were partly made by authorized agents acting under the direct orders of the Government of the United States, partly by agents acting under the orders of the governors of particular States, and partly by mercantile firms, acting, however, in some cases under the authority of the Federal or States Government. ་ Colonel Thomas, of the United States Army, was in England during the war, and acknowledged that he had come over to superintend the purchases of military stores. He sought and obtained much information on this subject at the Government establishment at Pimlico. It appears, however, that the agent mentioned in the report of the Secretary of War was a Colonel G. L. Schuyler. He was, in July, 1861, appointed by the President of the United States "a duly authorized agent to purchase arms in Europe for the War Department." He received his instructions from the Secretary of War, with a memorandum from General J. W. Ripley, of the Ordnance Department at Washington, specifying the arms to be purchased, viz: 100,000 riflemuskets with the bayonets, 10,000 cavalry carbines, 10,000 revolvers, and 20,000 sabres.3 The financial arrangements for these purchases were to be made by the Secretary of the Treasury with Messrs. Baring, financial agents for the United States in London, and a credit of $2,000,000 was, as has been seen, appropriated for the purpose. The money was placed at the order of Colonel Schuyler and the United States ministers in France and Belgium.' The arms were to be consigned to the care of Mr. Hiram Barney, collector of the port of New York. Colonel Schuyler proceeded to Birmingham, where, as appears from a report subsequently made by him in April, 1862, to the Secretary of War, he purchased of the Small Arms Association 13,129 long Enfield rifles, and 1,880 short Enfield rifles with sabre bayonets, in all 15,000, all of which arrived safely in the United States, consigned as directed in his instructions. He also made arrangements there with the American house of Van Wart, Son & Co., who had zealously cooperated with him to procure arms for delivery early in January, and who, between May, 1861, and February 15, 1862, ordered from the Birmingham Small Arms Company and forwarded to Messrs. Baring, and Messrs. George Wright & Co., at Liverpool, for shipment to the United States, an aggregate amount of 26,540 rifles. From England he proceeded to the Continent of Europe, where he continued his purchases; and in a letter from the War Department at Washington to General Appendix to British case, vol. vi, p. 151. 2 Appendix to case of United States, vol. vi, p. 34. Ripley, of the 18th November, 1861, information is said to have been · received from him, that the steamer City of Washington would leave Liverpool on the 6th of November, having on board 12,955 Enfield rifles from Dresden, 500 sabres, 800 revolvers, one case of bullet-molds. The steamer Saxonia, leaving Southampton on the 6th, was to bring 7,000 cavalry carbines and 500 sabres; the steamer Fulton (November 12) 20,000 percussion rifles; the steamer leaving Hamburg on the 17th of November, 30,000 more.1 * The War Department had written repeatedly and pressingly to Colonel Schuyler on the subject of his mission. On the 2d of September the Secretary wrote, "We need arms; secure them at any reasonable price and forward without delay." Again, on the 16th, "I trust that nothing will delay a prompt delivery of the arms which you have purchased. You will please express my acknowledgments to Messrs. Baring, Brothers & Co., for their prompt and patriotic action in facilitating your operations." On the 8th of October, "I notice with much regret that there are no guns sent. Prompt and early shipments of guns are desirable. We hope to hear by next steamer that you have shipped from 80,000 to 100,000." And, on the 21st of October, "the Department earnestly hopes to receive by the Arago the 12,000 Enfield rifles, and the remainder of the 27,000, which you state you have purchased, by the earliest steamer following. * * Could you appreciate the circumstances by which we are surrounded, you would readily understand the urgent necessity there is for the immediate delivery of all the arms you are authorized to purchase." In the summer or autumn of 1861, Mr. J. R. Schuyler and Mr. Tomes, of the firm of Schuyler, Hartley & Graham, of New York, visited Birmingham, and, after communicating with the principal rifle, bayonet, and sword manufacturers there, gave orders for as many of those arti cles as their respective manufactories were capable of supplying, [53] *the goods to be paid for on delivery to them at a place to be subsequently named, or on shipment. Messrs. Schuyler and Tomes made no concealment of the fact that these arms were destined for the American Government, and they intimated their intention of continuing unlimited orders for a period of two years. They took warehouses in Birmingham for the receipt of the arms when completed, and shipped them through the agency of Messrs. Baring Brothers and Messrs. Brown, Shipley & Co., of Liverpool. It appears from the returns made to Congress of arms purchased by the United States, War Department up to December, 1861, that 8,650 rifles and 232 revolvers of English manufacture had at that time been supplied by Messrs. Schuyler, Hartley & Graham; but Mr. Schuyler is also believed to have acted as agent for the purchase of arms for the State of New York. Messrs. Schuyler and Tomes were soon followed to Birmingham by a Mr. Lockwood, of New York, who had entered into a contract for the supply of rifles, bayonets, and swords to the War Department at Washington. He also gave unlimited orders for such articles, acting, however, to some extent in concert with Messrs. Schuyler and Tomes, and shipping the goods through the agency of the same houses at Liverpool. The effect of these orders was to raise the prices in the Birmingham gun-trade to the extent of 20 per cent.; indeed, the price of rifles rose from 52s. to 75s. each.1 1 Appendix to British case, vol. vi, p. 162. 2 Ibid., p. 154. 3 Ibid., p. 155. + Ibid., p. 158. |
