Mr. Nelson to Mr.
Seward.
No. 250.]
Legation of the United States,
Santiago de Chili, February 26, 1866.
Sir: In my despatch No. 248, of the 15th
instant, I had the honor to inform you of my endeavor to induce the
government of Chili to terminate the present conflict with Spain and
accept the arbitral decision of the United States in all questions
between them. I likewise informed you of the verbal reply of Mr.
Covarrubias, and that I should by the present mail transmit the official
note containing the same.
[Page 376]
On the 19th instant I received a note from the secretary of foreign
relations, dated February 17th, repeating the expressions used by him in
that interview, and stating that should the obstacles therein alluded to
be overcome, the government of Chili would be most happy to find itself
so placed as to be able to co-operate in the success of the pacific
desires of our government and my own. (A.)
I replied under date of the 23d instant, acknowledging the receipt of
this note, and informing his excellency that so earnest was my desire
for the cessation of the present conflict, that I should deem his
declination of my proposal as merely conditional and temporary in its
character, and requested him to consider that proposal as still
existing, and clothed with a quasi permanent
character that would enable his government to renew its consideration,
should a favorable opportunity for its acceptance occur. (B.)
In alluding to the reply of Admiral Mendez to the United States consul,
dated February 8th, 1866, (which should have formed enclosure C in the
despach of the 15th instant, but was omitted for want of time to copy
and translate it, and is now forwarded, marked C,) I stated that he
characterized the consular protest as hostile, and its signers liable to
be considered by the admiral as enemies of Spain. The document so
characterized appears to have been the protest of the American merchants
at Valparaiso interested in the Chilian coal mines, made before the
United States consul on the 31st January—not that of the consular
corps.
Upon presenting this protest to the consul of the United States, the
gentlemen signing it addressed him a letter bearing the same date, (see
enclosure D,) giving their reasons for protesting, and requesting him to
take measures for the protection of their interests.
On being informed by the consul of the reply of the admiral, the
merchants alluded to addressed the former a further note, taking
exception to the views of the commander-in-chief, and renewing their
protest, (E.)
On the 14th instant the Spanish frigates Villa de Madrid and Blanca
returned to Valparaiso, after an absence of twenty-four days, and a
rumor shortly after circulated to the effect that they had been engaged
in combat, and were both seriously injured. On the 17th the Blanca and
Numancia left in the night, destination unknown.
On the 20th, official information reached the government of a severe
engagement, on the 7th instant, between the Spaniards and the allies, at
the island of Abtao, near Chiloe, and the rendezvous of the allied
squadron.
The Spaniards had two heavy frigates, the Villa de Madrid and the Blanca;
the Chili-Peruvian fleet consisted of the Amazon, (frigate,) America and
Union, (corvettes,) and Covadonga, (gunboat,) (captured from the Spanish
on the 26th November.) The engagement lasted two hours, when the Spanish
forces retired, having received severe injuries. The number of
casualties on board the latter vessel is unknown, but it-is supposed to
be great, as many shell exploded on board, carrying away the wheel and
almost destroying the cabin of the Villa de Madrid. Fragments of the
cabin, clothing, bodies of the slain, and other evidences of the
disastrous effects of the allied fire, floated ashore after the fight.
The only loss on the side of the allies was two men killed on the
corvette Union. Each of their vessels was struck three or four times,
but the damage was trifling. The machinery of the frigate Amazon being
under repair, she was compelled to fight at anchor.
A mutiny is supposed to have broken out on the Villa de Madrid during the
fight, as great confusion was observed on board, followed by a volley of
musketry.
About 1,500 shot and shell were fired during the engagement. These data
are from the official reports.
A few days since Admiral Mendez notified the British naval authorities
that in the event of a single torpedo-boat being launched, or any
attempt made to
[Page 377]
destroy his
vessels by means of torpedoes, he would instantly open fire upon the
town. This threat was communicated through the British legation to the
government of Chili, which replied that, if it found it expedient to
make use of torpedoes it would do so, and warned Admiral Mendez that any
act of barbarity on his part against non-combatants would be severely
visited upon the Spanish prisoners in his hands.
This fact I have learned extra-officially, but have reason to believe it
reliable.
I have the honor to remain your obedient servant,
Hon. William H. Seward,
Secretary of State,
Washington, D. C.
A.
[Translation.]
Mr. Covarrubias to Mr. Nelson.
Department of Foreign Affairs,
Republic of Chili,
Santiago,
February 17, 1866.
Sir: I have the honor to reply to the note
of the 12th instant, whereby your excellency was pleased to offer to
my government, in compliance with the instructions of your own, the
arbitration of the United States, in order to arrive at a pacific
solution in the war at present waged by Chili against Spain. The
assurances in this respect which your excellency is pleased to give
me of the friendly solicitude with which the government of the
United States has followed the vicissitudes of the present conflict,
augment the high value of an offer which my government cordially
esteems.
Nevertheless, you yourself have already perceived one of the
obstacles which would prevent the immediate acceptance of a mode of
solution which, however has always been considered by my government
as most in conformity with civilization and humanity, and which has
never ceased to obtain its sympathies. As your excellency very well
observes, the treaty of alliance, offensive and defensive, between
Chili and Peru would not permit my government to decide in regard to
your excellency’s proposition without previously consulting the
government of that sister republic. However, since your excellency
is pleased to comprehend Peru in the offer of arbitration, this
obstacle may be very transitory. This is not the case in regard to
the obstacle presented by the good offices which have been tendered
to the republic by the cabinets of London and Paris, by means of
their diplomatic agents resident in Santiago, with a view of
arriving at a solution analogous to that sought by your excellency.
The conferences to which this effort for a settlement have given
rise are yet pending, and until some result is reached therefrom no
proposition could be taken into consideration the acceptance of
which would be incompatible with the prosecution of the efforts of
those cabinets.
Should the obstacles to which I allude disappear, the government of
the republic would be much pleased to find itself then in a position
which would leave it free to co-operate for a successful result to
the pacific views of the United States, seconded by your excellency
with a zeal and interest as generous as they are flattering to
Chili.
In recognizing this, and in thanking your excellency therefor, I
hasten to reiterate to you the expression of my sentiments of high
consideration and particular esteem with which I am your
excellency’s most obedient servant,
The Envoy Extraordinary, &c.,
&c.,
of the United States of North
America.
B.
Mr. Nelson to Mr. Covarrubias.
Legation of the United
States,
Santiago de Chili, February 23, 1866.
Sir: I have received your excellency’s
note, dated the 17th instant, in reply to my own of the 12th,
wherein I had the honor to propose to your excellency’s government
the arbitration of the United States, with a view of bringing to a
peaceful and honorable termination the present contest between Chili
and Spain.
[Page 378]
Your excellency is pleased to observe that while the obstacle
presented to such arbitration by the existence of a treaty of
alliance, offensive and defensive, between the republic and Peru is
not insurmountable, such is not the case with regard to the
difficulties presented by the action of the cabinets of London and
Paris, which have tendered their good offices with similar views,
through their representatives in Santiago; that the conferences for
this purpose being yet pending, a proposition, the acceptance of
which would be incompatible with the prosecution of such
negotiations, could not be entertained.
Your excellency further states that should the obstacles alluded to
disappear, the government of the republic would rejoice to find
itself in a position to co-operate in carrying out the pacific views
of the United States.
As it is the earnest desire of my government, and my own, to attain
the object proposed, namely, a peaceful and honorable termination to
the existing hostilities, I beg to say that your excellency may
consider the offer made by me, in the name of my government, to that
end as a permanent one, open to the acceptance of that of your
excellency whenever the time for that acceptance shall, in its
opinion, have arrived.
It only remains for me to reiterate to your excellency my earnest
desire that soon such may be the case, and the republic of Chili
exchange the evils of war for the blessings of peace and renewed
prosperity.
Availing myself of this occasion, I have the honor to renew to your
excellency the assurances of my most distinguished consideration and
respect.
His Excellency the Secretary of Foreign
Relations
of the Republic of Chili.
C.
[Translation.]
Reply of Don Casto Mendez Nunez
to the protest of the consular corps of
Valparaiso.
Headquarters of the Squadron of
H. C. M. in the Pacific, Frigate Numancia,
Valparaiso,
September [evidently an error—should be February]
8, 1866.
My Dear Sir: Together with the official
letter, without date, which you have been pleased to address me, I
have to-day received a protest, dated the 31st ultimo, presented in
the consulate under your worthy charge by some citizens of the
republic of the United States, referring to the determination taken
by me respecting the coal from Chilian mines.
Before occupying myself with the protest, out of respect and
attention to you, it is my duty to quote here that which Mr.
Wheaton, the illustrious North American writer, says in his treatise
upon the international law in regard to foreigners resident in one
of the belligerent countries: “In general the national character of
a person, as neutral or enemy, is determined by that of his
domicile; but the property of a person may acquire a hostile
character derived from personal residence. Thus,
the property of a house of trade established in the enemy’s
country is considered liable to capture and condemnation as a
prize.” And further on he adds: “The
production of an enemy’s colony, or other territory, is to be
considered as hostile property so long as it belongs to the
owner of the soil, whatever may be his national
character in other respects, or wherever may be his place of
residence.” In a word, that the hostile or neutral, in
respect to foreigners resident in a country, is impressed by the
national character of that country, and that the possession of the
soil impresses likewise upon the proprietor the character of that
very country, in so far as concerns the productions of that soil.
Hence, that the commercial domicile, or the sustaining of any
mercantile establishment in the enemy’s territory, and the personal
domicile, carry with them a hostile character; and hence, also,
nothing has this character more definitely than the trafficking with
the territorial productions of the enemy, since they constitute the
great wealth of the nation; from which is clearly and distinctly
deduced, that in accordance with the principles of international
law, universally recognized, the signers not only of the protest
which you have been pleased to address me, but also of that which
you delivered me the last time you came to this vessel, bear a
hostile character, since the former are domiciliated and sustain
commercial establishments in Chili, and the others are proprietors
and trade with territorial fruits of the same Chili.
All this demonstrates that those who sign both protests have a
character as hostile as though Chilian citizens were under
consideration, and consequently they are wanting in the right, or
rather that the law of nations deprives them of the right, of
considering themselves as neutrals, in the case under consideration.
The toleration of the government of Spain, and of its agents in
these waters, has been such that they have not wished to put in
practice, nor will they do so, that principle, save when there is a
question, as now, of contraband of war, since, however respectable
those interests may be in the opinion of the belligerent, the latter
cannot render the measures conducing to the success of his
operations subordinate thereto.
[Page 379]
Now, in regard to the right which I have to declare new articles
contraband of war: Articles which, by the very circumstances of the
war, might be employed in hostilities against the forces under my
command, even when they may have been considered heretofore
innocent, (as is the case with the coal of the Chilian mines,) it is
so clearly set forth in international jurisprudence that it is
unnecessary for me to enter into arguments to prove it; and the use
of that right is even much more legitimate in the present instance,
since the Chilian as well as the Peruvian vessels supply themselves
with that coal in all the ports of the Pacific coast; and there is
consequently every reason to suspect that they make use of the very
coal sent to those ports under pretext of being used for industrial
purposes; this grade of presumption being sufficient to render
legitimate the measure protested against, even did other reasons
therefor not exist. If these ports were only visited by merchant
vessels, and if the Chilian coal carried there were only employed
for pacific purposes, the quotation from Wheaton made use of by
those who have protested might have some value; but I repeat that
those very ports are visited by vessels hostile to Spain, and that
they there provide themselves with that coal.
There is no similarity whatever, as pretended by the signers of the
protests, between the declaration of a new article of contraband of
war and a blockade, since the moment that declaration is made by one
belligerent, in view of the rights conferred upon him by the laws of
war, neutrals have no right to trade between the various ports of
the other belligerent, nor between these and neutral ports, having
on board any article or articles declared as such contraband of
war.
As far as regards the very well-known maxim, that “a free ship makes
free goods,” proclaimed in the existing blockade instructions, and
which were published by the late general, his excellency Don José
Manuel Pareja, its action does not extend to articles contraband of
war, since if such were the case their declaration as such would be
null and void, for it would be only necessary to carry them beneath
a neutral flag to cause them to. cease to be so.
Finally, it is my duty to manifest to you the expressions contained
in the last article of the instrument declaring Chilian coal to be
contraband of war, and that is that I will continue to keep that
declaration in force until my government shall otherwise order. I
greatly regret, Mr. Consul, that the reasons set forth do not permit
me to alter the said determination, since nothing gives me greater
pleasure than to be able to please the representatives of nations
friendly to Spain; above all when, as in the present instance, these
representatives merit my highest respect and consideration.
I am, Mr. Consul, your most obedient servant,
D.
[Translation.]
Valparaiso,
February 16, 1866.
The following note was sent, on the 30th of January, to the consul of
the United States, Mr. Clark, by the firms of Alsop & Co.,
Loring & Co., and Don Pablio H. Delano, in the name of the
Puchoco Coal Company, in union with the protest which said houses
made against the determination of the Spanish chief declaring
Chilian coal to be contraband of war:
Valparaiso,
January 31, 1866.
Sir: We the undersigned, citizens of the
United States, heavily engaged in the working of some of the
principal coal mines of the country, have learned with surprise that
the chief of the forces of her Catholic Majesty in the Pacific has
notified the consuls of neutral nations here residing his
determination to consider coal of the country as an article
contraband of war, and, as such, he will seize it wherever he may
find it and whatever be its destination.
The determination of the chief of the Spanish forces cannot be
considered in any other light than as a desire to do by means of a
simple decree that which (even supposing him to have the right to do
so) he could only do by means of the forces under his command, and
consequently ought not to be permitted by neutral nations: and it is
to be hoped that the representatives of those nations will interpose
prompt and efficient measures to prevent the citizens of the country
they represent from suffering the damages which they inevitably
would suffer were it permitted to take effect without
opposition.
The proceedings of the Spanish chief in this affair are in fact
nothing less than the establishment of a paper blockade of the
coal-producing ports of this country, which is contrary to the
principles of international law, since the free commerce of neutrals
between neutral countries and the ports of one of the belligerents,
or between two or more of such ports, cannot be impeded otherwise
than by an effective blockade of those which it is desired to. keep
closed.
[Page 380]
The right of free trade between neutral countries and non-blockaded
ports of the belligerents, and between two or more of these latter,
is not only a principle of international law, but in the war
existing between Chili and Spain is a right insured to the citizens
of the United States by the treaty in force between those States and
Spain. Consequently the measure of which we complain is not only
contrary to international law, but it is a positive infraction of
that treaty.
Articles of common use can only be considered as contraband of war
when they are intended for the aid of the military or naval forces
of the enemy. Hence, according to Wheaton, the most important
distinction is whether the articles are intended for the common uses
of life, or for military purposes. The nature and quality of the
port of their destination is the test to which the fact as to which
they belong should be subjected. If the port be a commercial one, it
is generally understood that the articles are intended for peaceful
purposes, even though a vessel of war be occasionally constructed
therein.
Now it is perfectly well known to all that there is no military or
naval establishment in any of the non-blockaded ports of the
republic to the north of those producing coal, and consequently that
none of the articles introduced in those ports will be able to be
applied to benefit the warlike operations of the Chilian forces,
which are effected in another direction.
Up to the present time it has been always understood that articles
contraband of war only become liable to the penalties incurred by
them as such when they proceed from a neutral country to that
portion of a belligerent one where a military or naval force is to
be found, or to a blockaded port, or from the non-blockaded ports of
a country to the blockaded ports thereof;
consequently, the decree of the Spanish chief declaring that such
articles may be captured when they proceed from non-blockaded ports
to a neutral country, or to another non-blockaded port of the
country itself, is an attempt to introduce an innovation into the
practice of international law which it does not belong to him to
make, since it is the right of his sovereign alone, and in making it
he ignores the established principle that “free ships make free
goods” of those on board of them.
If the pretensions of the chief of the forces of her Catholic Majesty
are admitted unresistingly, they will cause inevitable ruin of all
those who are engaged in the working of the coal mines, as well as
of all those who have other branches of industry depending thereon,
since the ruinous effects of the measure fall almost exclusively
upon them, against equity, and in contradistinction to the express
instructions of his government, by which he was Chargéd to avoid, as
far as possible, injury to neutrals
Finding ourselves among the number of those upon whom the pernicious
effects of the said measure fall most heavily, we have to-day
protested before you against the government of Spain, against the
chief of the Spanish squadron, and against all whom it may concern,
for the damages which it may cause to us; and we now beg that you
adopt such measures as you may deem opportune for the protection of
our interest, and we feel confident that if they be taken promptly
and efficaciously they will result in obtaining a revocation of the
offensive measure of which we complain.
We subscribe ourselves, very respectfully, your obedient
servants,
ALSOP & CO.
LORING & CO.
PAUL H. DELANO, Agent of the Puchoco Coal
Company.
To Ambrose H. Clark, Esq., Consul of the United States.
E.
[Translation.]
The North American citizens, authors of the
protest in regard to coal, have replied as follows to the note
addressed to them by the Spanish commander.
Valparaiso,
February 12, 1866.
Sir: You having informed us of the reply
given by the chief of the forces of her Catholic Majesty in the
Pacific to the letter which you addressed him, accompanied by a copy
of the protest which we extended before you on the 31st ultimo, and
of our letter of complaint addressed to you under the same date, we
beg you to permit us to make some observations in reference to that
reply, in the hope that if you be pleased to present them to that
chief he may be even yet induced to withdraw, or at least modify,
the terms of his declaration relative to Chilian coal,
notwithstanding he has said at the close of his letter that he is
resolved to sustain that declaration until his government shall
otherwise order.
To uphold his right to declare Chilian coal contraband of war, and as
such to seize, it wheresoever he may find it, even though it be the
property of neutrals, he cites the work of Wheaton on International
Law, but while respecting duly the opinion of the said chief, we
[Page 381]
may be allowed to say that
that portion of the work of Wheaton whence he has taken his
quotation is only applicable to the property of neutrals
domiciliated in an enemy’s country which may be found on board in a
situation which would permit its seizure; that is to say, when found
on board of vessels of the enemy; but although it is in such cases
liable to capture, it is not when it is found beneath a neutral
flag. In such cases the maxim so well known that
free ships make free goods, which he recognizes, will serve
for their protection. The only exception to this is when the article
is of the class called contraband of war, which coal is not. This
brings us again to the question whether the chief of the Spanish
forces in the Pacific has the right to declare articles of common
use contraband of war. According to all writers upon international
law this right belongs alone to the supreme executive power of a
nation, and consequently it is without the sphere of his authority
to declare coal so to be, unless when it is destined to some
besieged or blockaded port. That his government ahs not so
considered it is evident from the fact that his predecessor in the
command omitted it from the list of articles to be so
considered.
The omission to which we have referred authorized us to believe that
we possess a perfect right to trade in articles of lawful commerce
between this country and the ports of neutral nations, or between
the non-blockaded ports of the former, and that this right would be
respected by the forces of her Catholic Majesty which operate on
this coast; and in this confidence we have entered into engagements
for the delivery of coal at the different ports where there are
smelting works and other industrial establishments, and have
chartered numerous neutral vessels to carry the said coal, with none
of which engagements will it be possible to comply, if the
declaration of the Spanish chief relative to Chilian coal be
sustained. This failure in compliance exposes us to claims for the
damages resulting therefrom, and later will originate claims for
indemnity against the Spanish government.
The chief of the Spanish squadron alleges, in support of his
authority to declare Chilian coal contraband of war, that
international law is so explicit in the premises as to render it
unnecessary for him to enter into explanations to demonstate it, and
that it is sufficient for him to have the presumption that the
enemy’s vessels may supply themselves with that coal in the ports of
the coast, in order to legitimatize the measure of declaring it
contraband of war.
Now to us the legitimacy of the declaration by the mere presumption
of possible eventualities does not appear so clear, and we are
sustained in our mode of thinking by the same respectable authority
in international law to which he appeals, since, in speaking of
provisions as contraband of war, that author says: “If the mere
hope, however apparently well founded, of annoying or reducing an
enemy, by intercepting the commerce of neutrals in articles of
provision (which in themselves are no more contraband than ordinary
merchandise) to ports not beseiged or blockaded, would authorize
that interruption, it would follow that a belligerent might at any
time prevent, without a seige or blockade, all trade whatsoever with
its enemy, since there is at all times reason to believe that a
nation having little or no shipping of its own might be so
materially distressed by preventing all other nations from trading
with it, that such prevention might be a powerful instrument in
bringing it to terms. The principle is so wide in its nature that it
is in this respect incapable of any boundary. There is no solid
distinction, in this view of the principle, between provisions and a
thousand other articles. Men must be clothed as well as fed, and
even the privation of the conveniences of life is severely felt by
those to whom habit has rendered them necessary. A nation, in
proportion as it can be debarred its accustoned commercial
intercourse with other states, must be enfeebled and impoverished;
and if it is allowable to a belligerent to violate the freedom of
neutral commerce in respect to any one article not contraband in se, upon the expectation of annoying the
enemy or bringing him to terms by a seizure of that article and
preventing it reaching his ports, why not upon the same expectation
of annoyance cut off as far as possible by captures all
communication with the enemy, and thus strike at once effectually at
his power and resources?” These observations are as applicable to
coal as to provisions or to any other of the thousand articles of
common use.
We entertain the hope that a reconsideration of the matter and a
reference to the existing treaty between the United States and
Spain, will induce his excellency to modify, if not entirely revoke,
the recent declaration in reference to Chilian coal, and for this
purpose we reiterate the request expressed at the beginning of this
communication, that you be pleased to place it before him, endorsing
it with such observations as you may deem proper.
We are, sir, very respectfully, your obedient servants,
ALSOP & CO.
LORING & CO.
PAUL H. DELANO, Agent of Puchoco Coal
Company.
Ambrose W. Clark, Esq., Consul of the United States.
