Casto Mendez Nunez to the protest of the consular corps of Valparaiso, February 8, 1866

Reply of Don Casto Mendez Nunez to the protest of the consular corps of Valparaiso.

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.

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,