No. 117.

Mr. Bayard to Mr. Smithers.

No. 439.]

Sir: I have to acknowledge the receipt of Mr. Young’s dispatch of March 30, 1885, No. 696. It incloses copies of the correspondence between himself and Mr. Stevens, United States consul at Ningpo, in which the former agreeing with the latter upon the subject of articles, contraband of war, states that as both China and France are at peace with the United States it would be a questionable right under the circumstances for any vessel flying the American flag to carry contraband of war for either of the belligerent powers. The consul is consequently admonished against clearing any vessel freighted with such articles, the enterprise being undertaken solely at the risk of the owner or owners.

[Page 173]

The duties of neutrality, by the law of nations, cannot be either expanded or contracted by national legislation. The United States, for instance, may, in excessive caution, require from its citizens duties more stringent than those imposed by the law of nations; but this, while it may make them penally liable in their own land, does not by itself make them or their Government extraterritorially liable for this action in disobeying such local legislation. On the other hand, a Government cannot diminish its liability for breach of neutrality by fixing a low statutory standard.

It is also to be observed that the fact that certain articles of commerce are contraband does not make it a breach of neutrality to export them. There has not been, since the organization of our Government, a European war in which, in full accord with the rules of international law, as accepted by the United States, munitions of war have not been sent by American citizens to one or both of the belligerents; yet it has never been doubted that these munitions of war, if seized by the belligerent, against whom they were to be used, could have been condemned as contraband.

The question, then, is whether furnishing to belligerents coal and life-shells is a breach of neutrality which the law of nations forbids. The question must be answered in the negative as to coal, and the same conclusion may be adopted with regard to life-shells, which are said to be projectiles used in the bringing to shore or rescue of wrecks.

Under these circumstances it is not perceived why, in the present case, the United States authorities should intervene to prevent such supply from being forwarded to the open ports of either belligerent. Even supposing such articles to be contraband of war and consequently liable to be seized and confiscated by the offended belligerent, it is no breach of neutrality for a neutral to forward them to such belligerent ports subject, of course, to such risks. When, however, such articles are forwarded directly to vessels of war in belligerent service another question arises. Provisions and munitions of war sent to belligerent cruisers are unquestionably contraband of war. Whether, however, it is a breach of neutrality, by the law of nations, to forward them directly to belligerent cruisers depends so much upon extraneous circumstances that the question can only be properly decided when these circumstances are presented in detail, and until an actual case of this character arises the Department prefers not to discuss the point.

I am, &c.,