Alsop & Co to Ambrose W. Clark, February 12, 1866

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.

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 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,