“It is no interference with the right of a third party to say that he shall not carry to my enemy instruments with which I am to be attacked. Such commerce is, on the other hand, a deviation from neutrality,—or rather would be so, if it were the act of a State and not of individuals.”[6]
The distinction is obvious between what can be done by the individual and what can be done by the State. The individual may play the merchant and take the risk of capture; but the State cannot play the merchant in dealing with a belligerent. Of course, if the foreign power is at peace, there is no question; but when the power has become belligerent, then it is excluded from the market. So far as that power is concerned, all sales must be suspended. The interdict is peremptory and absolute. In such a case there can be no sale knowingly without mixing in the war,—precisely as France mixed in the war of our Revolution in those muskets sent by the witty Beaumarchais, which England resented by open war.
And this undoubted principle of International Law was recognized by the Secretary of War, when he directed the Chief of Ordnance not to entertain any bids from E. Remington & Sons, who had stated that they were agents of the French Government. In giving these orders he only followed the rule of duty on which the country can stand without question or reproach; but it remains to be seen whether persons under him did not content themselves with obeying the order in letter only, breaking it in spirit. I assume that the order was given in good faith. Was it obeyed in good faith? Here we start with the admitted postulate that it was wrong to sell arms to France.
But if this cannot be done directly, it is idle to say that it can be done indirectly without a violation of good faith. If it cannot be done openly, it cannot be done privily. If it cannot be done above-board, it cannot be done clandestinely. It is idle to reject the bid of the open agent of a belligerent power and then at once accept the bid of another who may be a mere man-of-straw, unless after careful inquiry into his real character.
Nothing can be clearer than the duty of the proper officers to consider all bids in the sunlight of the conspicuous events then passing. A terrible war was convulsing the Old World. Two mighty nations were in conflict, one of which was already prostrate and disarmed. Meanwhile came bids for arms and war material on a gigantic scale, on a scale absolutely unprecedented. Plainly these powerful batteries, these muskets by the hundred thousand, and these cartridges by the million were for the disarmed belligerent and nobody else. It was impossible not to see it. It is insulting to common-sense to imagine it otherwise. Who else could need arms and war material to the amount of four million dollars at once? Now it appears by the dispatches of the French Consul-General at New York, which I find in an official document, that on the 22d October, 1870, he telegraphed to the Armament Commission at Tours:—
“The prices of adjudication have been 100,000 muskets at $9.30; 40,000 at $12.30; 100,000 at $12.25; 50,000,000 cartridges at $16.30 the thousand: altogether, with the commission to Remington and the incidental expenses, more than four million dollars.”
Such gigantic purchases, made at one time, or in the space of a few days, could have but one destination. It is weakness to imagine otherwise. Obviously, plainly, unquestionably, they were for the disarmed belligerent. The telegraph each morning proclaimed the constant fearful struggle, and we all became daily spectators. In the terrible blaze, filling the heavens with lurid flame, it was impossible not to see the exact condition of the two belligerents,—Germany always victorious, France still rallying for the desperate battle. But the officials of the Ordnance Bureau saw this as plainly as the people. Therefore were they warned, so that every applicant for arms and war material on a large scale was open to just suspicion. These officials were put on their guard as much as if a notice or caveat had been filed at the War Department. In neglecting that commanding notice, in overruling that unprecedented caveat, so far as to allow these enormous supplies to be forwarded to the disarmed belligerent, they failed in that proper care required by the occasion. If I said that they failed in good faith, I should only give the conclusion of law on unquestionable facts.
In the case of the Gran Para, Chief-Justice Marshall, after exposing an attempt to evade our neutral obligations by an ingenious cover, exclaimed, in words which he borrowed from an earlier period of our history, but which have been often quoted since: “This would, indeed, be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe.”[7] I forbear at present to apply these memorable words, which show with what indignant language our great Chief-Justice blasted an attempt to evade our neutral obligations. In calling it fraudulent he was not deterred by the petty cry of a false patriotism, that his judgment might affect the good name of our country. Full well he knew that national character could suffer only where fraud is maintained.
I doubt much if the true rule can be laid down in better words than those I quoted on a former occasion from the Spanish minister at Stockholm, denouncing the sale of Swedish frigates.[8] He protested against “arms and munitions furnished through intermediate speculators, under pretence of not knowing the result,” which he exhibited as an “act of hostility” and a “political scandal.” According to this excellent protest, the sale is not protected from condemnation merely by “intermediate speculators” and the “pretence of not knowing the result.” And this is only according to undoubted reason. It is simply a question of good faith; and if, taking into view the circumstances of the case and the condition of the times, there is reasonable ground to believe that “intermediate speculators” are purchasing for a belligerent, then the sale cannot be made, nor will any “pretence of not knowing the result” be of avail.
In harmony with this Spanish protest is the calm statement of a Joint Committee of Congress, where this question of international duty is treated wisely. I read from the report of Mr. Jenckes on the sale of certain ironclads:—