I take the liberty to enclose an abridgment of the great Swedish case
(cut from the London Times) relating to “the duties of neutral nations.”
In 1825, the
[Page 352]
Swedish
government was occupied in the construction of its navy, and had sold
several vessels of war considered unfit for service. Among others in the
year 1825 three vessels, one ship-of-the-line and two frigates, were
offered for sale at. Stockholm; these vessels were purchased by a
British mercantile firm in open market. The Spanish minister, M.
Alvarado, (instructed by his government,) having cause to believe or
discovering that the vessels were intended to augment the naval forces
of the revolted Spanish American colonies, protested and remonstrated
against their being permitted to depart from Sweden, “since these ships
(no doubt without the cognizance of the Swedish government) are destined
to re-enforce the rebel armaments of Mexico.” He also writes that he is
well aware that the British purchasers are far from admitting such a
destination, but, on the contrary, have omitted no means to dissemble
it, and thereby to deceive the good faith of the cabinet of Stockholm;
also, that the sale of such public vessels not being an act of customary
trade on the part of a government of a state, Spain protests against it,
as an act inconsistent with the neutrality of the Swedish crown.
M. de Curry, in commenting on the above transaction in his treatise
entitled “Phases et Causes Célèbres du Droit Maritime des Nationes,”
observes that the sale of these ships was originally intended as a
simple operation of commerce upon the part of the Swedish government,
and as such was perfectly legitimate on its part; but as soon as it was
brought clearly to its knowledge that such of the vessels as had been
permitted to sail were destined to augment the maritime forces of the
insurgent colonists, the Swedish government felt it to be inconsistent
with the neutrality of the Swedish crown that it should lend itself to a
transaction whereby the state would be rendered subservient to the uses
of war of one of the belligerent parties, to the manifest prejudice of
the other, and as its good faith had been surprised, cancelled the sale
of such of the vessels as were still in Swedish waters.
The purchasers received $9,000 from the Swedish government for giving up
their bargain, and so the affair peaceably concluded.
The duties of neutral nations.
To the Editor of the Times:
Sir:At a moment when public attention is
much directed to the question of the sale or equipment of vessels of
war on account of belligerent states within the precincts of neutral
governments, a short account of a diplomatic correspondence, forming
an authentic precedent in some degree bearing upon this subject,
will probably be acceptable to your readers. I am not aware that the
Swedish case to which I am about to refer has been noticed in the
recent discussions of this head of international law. The documents
relating to this matter will be found in a recent volume of the Causes Célèbres du Droit des Gens, published
by Baron C. Martens, (vol. v, Cause iv, p. 229.) For the benefit of
those of your readers who may not have access to the work, I will
give a short but sufficient abstract of the facts—the
correspondence. I may mention that I have omitted a good deal of the
merely political part of the discussion, which smacks not a little
of the doctrines of the Holy Alliance. Apart from this, however, the
legal bearings of the case are well deserving of study and
consideration.
[Page 353]
For several years the Swedish government had been occupied in the
reconstruction of its navy, and had put up for sale several vessels
of war, which were considered unfit for service. This traffic had
taken place publicly, without objection in any quarter. In the year
1825 three vessels, one ship-of-the-line and two frigates, were
offered for sale to the Spanish minister at Stockholm. On his
declining to purchase them they were put up for sale in the open
market, and were purchased in due form by the firm of Michaelson
& Benedicks, who re-sold them to the house of Barclay, Haming,
& Richardson, of London. Shortly after the conclusion of this
contract, and before the delivery and departure of the vessels, it
became generally rumored that they had been, in fact, purchased on
account of the revolted states of South America, with whom Spain was
then at war. This transaction led to a correspondence of
considerable interest and importance between M. d’Alvarado, the
representative of the court of Spain at Stockholm, and Count
Wetterstedt, the Swedish minister for foreign affairs. The following
extracts will give your readers an idea of the leading features of
the discussion.
In a note dated July 1, 1825, M. Alvarado, after reciting the sale of
the vessels, remonstrates against their being permitted to depart
from Sweden, “since these ships (no doubt without the cognizance of
the Swedish government) are destined to re-enforce the rebel
armaments of Mexico. The undersigned is well aware that the
purchasers are far from admitting such a destination, but, on the
contrary, have omitted no means proper to dissemble it, and thereby
to deceive the good faith of the cabinet of Stockholm; that they
have alleged that the vessels are twenty or thirty years old: that
their second tier of guns has been withdrawn; and, lastly, they have
announced that their object is to traffic with India,”
The Spanish minister then proceeds to point out the obvious futility
of these pretences. He argues, first, “that the purchase of
ships-of-the-line by a private individual is an unheard of thing.”
Next, “that the vessels in question are wholly dissimilar to those
employed in the service of the East India Company.” Thirdly, he
points out the absurdity of the supposition that the English
merchant should have purchased the vessel on his own account. It is
a government, he argues, not an individual who is the natural
purchaser of ships of war. It is notorious that
the South American republics are greatly in want of ships. And,
further, the English firm in question is known to be largely
engaged in the rebel loan, and consequently deeply interested in
the rebel cause. “These observations,” proceeds the
note,
“Prove sufficiently that the English firm can have no other object in
acquiring these vessels than to hand them over to the Mexicans; it
has the greatest interest in so doing, and will inevitably do so.
After such decisive considerations, can it be necessary to recall
the public notoriety of the destination of these ships accredited at
Stockholm, Carlscrona, Gothenburg, and London, by public rumor, by
commercial correspondents, and even by persons on board the vessels
themselves, some of whom aver that they are bound to an unknown
destination, while others more frankly speak of their voyage to
America? To demand a greater certainty than that which is afforded
by such grave presumptions and such vehement grounds of suspicion
would be to require the public and legal confession of the
purchasers, which it is too much their interest to withhold, or at
all events that material but too tardy demonstration which will one
day be acquired when the vessels covered by a Mexican flag shall
have attacked the Spaniards in the Atlantic.”
The Spanish minister proceeds to urge upon the consideration of the
Swedish court the following consideration:
“What would the King of Sweden think, supposing Norway to be in
revolt, if friendly and allied powers were to furnish arms,
munitions, and even a fleet to the rebels through the medium of
speculators and under the pretence of ignorance of the results?
Would the cabinet of Stockholm, when it was apprised of these
preparations, wait till the iron and cannon furnished to its enemies
had mowed down its soldiers, and the vessels so made over to the
rebels had annihilated its commerce and desolated its shores, before
it reclaimed against and if possible prevented such
transactions?”
[Page 354]
The Spanish note concludes by demanding that the contract of sale to
the English firm should be rescinded, or at least that the vessels
should be detained until further instructions.
Count Wetterstedt, the Swedish minister, replied in a note of the
date of July 7. 1825. He first of all argues the good faith of his
own government— which, indeed, was not disputed—and shows the
complete bona fides of the sale. He then
proceeds to the following effect:
“A grave accusation is founded upon this sale. The vessels, it is
alleged, are destined to re-enforce the maritime armaments of the
rebels in Spanish America. Where assertions of this peremptory
character are advanced, and a demand for the rescinding of the
contract is based upon them, one has a right to expect material
proofs of a positive and indisputable character. These the
undersigned cannot discover in the reasonings of the Spanish
minister founded on the nature of the vessels and the relations of
the purchasers with the South American republics. When the public
notoriety of the destination of the vessels is relied upon, and
letters from persons on board are referred to, it would have been
highly desirable that the Spanish minister should have given the
details of the information he appears to possess and the
correspondence which is alleged to exist, in order that the matter
might be kept out of the vicious and deceitful circle of rumor and
hearsay. If the Spanish minister can, or thinks he can, demonstrate
that the purchasers of these vessels have formed the intention of
putting them to a use which may be injurious to Spain, his court
should address itself to the British government, which alone can
exercise the proper control over its own subjects. But to demand the
arrest of a sale upon simple presumption, and under the apprehension
of future dangers which might result from it, would be to annihilate
the activity and development of all commercial transactions.”
Referring to the supposition made by the Spanish minister of a
rebellion in Sweden, Count Wetterstedt adds:
“In such a case the Swedish government would not seek to render
foreign governments responsible for any succors which their
subjects, without their knowledge, and contrary to their orders,
might render to the insurgents.”
The Swedish note ends by declining to comply with the demand of the
Spanish minister.
On July 15, 1825, M. Alvarado writes a further note, in which he
calls attention to suspicious circumstances with reference to the
enlistment of crews of the Swedish navy, and then, recurring to the
former argument, protests against “the doctrine of irresponsibility
which the cabinet of Stockholm professes with regard to these
vessels.” He treats with disdain the suggestion of
a recourse to the British government, and adds that “this
will be no justification for Sweden, since
she is the only government in the world which by
selling vessels of this description without precautions to
foreign speculators is the primary cause of the mischiefs which
they may produce.” Referring to the observation of the
Swedish note on the subject of inconveniences of restricting trade
upon mere presumption of ulterior consequences, M. Alvarado
says:
“Does, then, the Swedish government place in the rank of innocent
commerce, and of transactions in which activity ought to be
encouraged, the sale of ships-of-the-line to private individuals,
who offer none of the guarantees which are given by nations and
governments? Are these terrible instruments of destruction and
conquest to be handed over to the passions or calculations of the
first comer without taking any precautions that they shall not be
made to serve the ends of piracy?”
After this some further correspondence passed not material to the
present purpose, but on September 9, 1825, M. Alvarado, having
received final instructions from his own court, and re-enforced by
the representatives of France, Russia, and Prussia, delivered his
ultimatum. Referring to the grounds of suspicion. already set forth,
and the notoriety of the destination of the vessels, he adds:
“However, although this point is unhappily but too clear, the
undersigned cannot conceal from himself that to all his
remonstrances the Swedish minister has opposed the observation that
he could only regard the matter from a commercial point of view, as
a sale which the twedish govenment was at liberty to make to the
best account that it could for the sake of Se improvement of its
navy.”
[Page 355]
Against such a line of argument the Spanish minister strongly
remonstrates and asks whether the Swedish government really
proposes—
“To furnish indiscriminately vessels-of-war to the first bidder, even
to private individuals, without any guarantee; laying down, as it
should seem, the proposition that the commercial benefits of these
sales are of a higher order of necessity to the state than the
loftiest political considerations or the most respectable moral
obligations. If so, it would be to resolve on eluding the duties of
neutrality towards belligerent powers, and those of friendship and
alliance towards a friendly power whose subjects are in revolt. If
so, then insurgents and pirates would never want maritime resources,
for the supply of these implements of war to all sorts of persons
would always offer to the Swedish government sufficient commercial
advantages to justify their destination and intermediate speculators
who would mask the wrongs—commercial advantages which would be all
the greater, and speculators who would be all the more generous,
just in proportion as the operations for which they were required
were the more illicit.”
This final note ends by a renewal of the demand for the rescission of
the contract with the English firm, and threatens to consider the
departure of the vessels as an act of hostility on the part of the
Swedish government.
On the 1st of November, 1825, the rescission of the contract was
formally announced in the Swedish Official
Gazette. The contract purported to be dissolved at the
instance of the purchasers, whose consent, however, was obtained by
the offer of liberal terms, as they received $9,000 from the Swedish
government for giving up their bargain, and so the affair peaceably
concluded.
Now, assuming this precedent to be well founded in principle, let us
see what it does and what it does not establish. I need not point
out to those of your readers who have paid any attention to this
kind of questions the capital distinction between a transaction like
that in the Swedish case, in which the government of a neutral
country is itself a party to the transaction, and a mere sale of
munitions of war by a subject of that government without its
privity. The sale of the vessels to the English firm by the Swedish
government was an act in itself clearly lawful. A sale by the
Swedish government to the South American republics would have been
equally clearly unlawful. The importance of this case is in showing
upon what sort of evidence the Swedish government was bound to take
notice that the sale, though apparently legitimate, was yet, from
the circumstances of the case, not permissible. It is only in this
way that it can be made applicable to the questions which at present
engage public attention. It does not aid us to any degree in
determining whether, under the foreign enlistment act or otherwise,
the equipment of a vessel-of-war by a subject of the neutral
government for a belligerent state is or is not an act which it is
the duty of the neutral government to prohibit and prevent, or
whether it is one which, like the sale of any other munition of war,
the neutral government may permit its subjects to engage in at their
own risk. But the question which has been recently raised divides
itself into two branches. First, are the sale and equipment of a
vessel-of-war for the account of a belligerent, acts which a
government ought to prohibit and prevent in its subjects directly?
Secondly, if this ought to be prohibited if the sale be direct to
the belligerent, can the obligation be evaded and the responsibility
declined by the colorable interposition of a third party to whom the
prohibition does not personally apply, but who there is good reason
to think is acting only as a channel for the accomplishment of the
illegal intent? It is to this second head exclusively that the
Swedish precedent applies itself. Assuming it to be established that
the equipment of a ship-of-war for a belligerent is by the municipal
law as much prohibited to the subject of a neutral state as it
unquestionably is by international law forbidden to the neutral
government itself, then the Swedish case shows that the
responsibility of seeing that this prohibition is not eluded cannot
be got rid of by the mere device of a sale to a merchant professing
to purchase on his own account, but which the circumstances make it
morally clear is really on account of the belligerent. The whole
question is one of agency. Qui facit per alium
facit
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per se. The question is whether the purchase
is bona fide what it purports to be, or is it
only a device for accomplishing indirectly what would not be
permitted directly? Whether we ought or ought not to permit our
ship-builders to construct steam rams for the confederate
authorities may be a matter of dispute on which there is a good deal
to be said on both sides. But this is quite clear, that if the thing
cannot and may not be done openly, it ought not to be allowed to be
done covertly. If the steam rams cannot be lawfully consigned to
President Davis, they cannot lawfully be sold to any person who is,
to all intent’s and purposes, Mr. Davis’s agent, whether he call
himself a French merchant or take any other shape or designation.
This is the common sense and common justice which receives an apt
illustration in the Swedish case. The principal value of the
precedent is as an example of the sort of evidence which ought to be
offered and demanded in order to establish the obligation on the
neutral government of taking notice of the existence of such an
unlawful agency at work in a contract prima
facie lawful. In this point of view it is well worthy of
attention.
HISTORICUS.
September
30.
