Alsop & Co to To Ambrose H. Clark, February 16, 1866

[Translation.]

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.

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,