Mr. Speed to Mr. Seward
Sir: I must ask pardon for my delay, occasioned by pressing engagements in court, in making reply to your letter of the 21st ultimo, enclosing for my consideration two notes received by your department from the minister of the Mexican republic, with their accompaniments, relative to an order, of date October [Page 714] 11, 1865, issued by General McDowell, commanding the military department of California, prohibiting the exportation of arms or munitions of war by the frontier into Mexico. The question asked by you is, whether, in my opinion, this order is in conformity with any laws, regulations, or orders in force, bearing on the subject.
No military officer has the right, in this country, to issue any order to which he cannot lawfully compel obedience by the forces under his command. The test, therefore, of the validity, in point of law, of this order of General McDowell, is, whether he could lawfully employ the military forces subject to his control to prevent American citizens, and other persons within our jurisdiction, from transporting arms and munitions of war, as merchandise, across the frontier into Mexico, in the present state of the affairs of that country.
The answer to be given to this question depends upon the character of the acts against which the order is directed—whether they are lawful or unlawful; and, if unlawful, whether the military authority can take cognizance of them and prevent or restrain their commission.
Some offences are cognizable exclusively by civil authority; others may lawfully be restrained or prevented by military power.
Counterfeiting the current coin of the United States is made criminal by statute, but the law leaves the offence to be dealt with by the civil authority of the United States. By the statute of 1818, the setting on foot any military expedition within the jurisdiction of the United States against the territory of a foreign state with whom the United States are at peace, is a high misdemeanor, but the statute expressly authorizes the President to employ the army and navy to prevent the carrying on of any such expedition from our territory.
It is plain that if it should be determined that it is not unlawful for American citizens, neutral people in the war now being waged on Mexican territory, to export articles contraband of war, by way of merchandise, to either of the belligerents, the inquiry as to the jurisdiction of the military authorities over the subject need not be pursued.
In that event any attempt on the part of those authorities to enforce obedience to rules or regulations of their own in regard to that subject would be clearly a usurpation of power.
Now, I apprehend it to be well settled that “neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with criminal act.” (Kent’s Com., p. 142.) I state the doctrine in the words of Chancellor Kent, “of whose writings it may be safely said,” a late English author has remarked, “that they are never wrong.”
In the case of the Santissima Trinidad, Mr. Justice Story, in delivering the opinion of the court, said, “There is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.” (7 Wheaton, 340.)
Without entering into an extended exposition of the law on this subject, I am of opinion that if the order of General McDowell was intended to interfere with such trade, conducted by our people, as the authorities to which I have referred have declared to be lawful, the order is not “in conformity with any laws bearing upon the subject.”
I observe that a portion of the order to which my attention has been called was probably intended to be directed against military expeditions or armed enterprises carried on from this country against the belligerents contending in Mexico. Such expeditions and enterprises are, of course, violations of our [Page 715] statutes; and nothing in this opinion is intended to impugn the validity of the order in respect to them.
I have the honor to be, with the greatest respect,
Hon. William H. Seward, Secretary of State.