private property should not be seized or molested by national ships of war. Should the leading powers of Europe concur in proposing as a rule of international law to exempt private property upon the ocean from seizure by public armed cruisers as well as by privateers, the United States will readily meet them upon that broad ground.

109

The Secretary of State (Marcy) to the French Minister (Sartiges)1

WASHINGTON, July 28, 1856.

The Undersigned, Secretary of State of the United States, has laid before the President "The declaration concerning maritime law "2 adopted by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia and Turkey, at Paris, on the 16th of April 1856, which the Count de Sartiges, Envoy Extraordinary and Minister Plenipotentiary of France, has presented in behalf of the Emperor of the French to the Government of the United States,

1MS., Notes to France, vol. vi, pp. 274–294.

The same, on the same date, to the Austrian, Prussian, Russian, and Sardinian diplomatic representatives.

2 The following extracts appear as a footnote to a printed text (Circulars, vol. I, p. 141), but they are not included in the manuscript copy of the despatch :

"[Translation.]

ANNEX TO PROTOCOL NO. 23.-DECLARATION.

(Extract.)

That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their governments are animated, than by seeking to introduce into international relations fixed principles in this respect. The above-mentioned Plenipotentiaries being duly authorized, resolved to concert among themselves as to the means of attaining this object; and having come to an agreement, have adopted the following solemn Declaration: 1. Privateering is, and remains, abolished;

2. The neutral flag covers enemy's goods, with the exception of contraband of war;

3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag;

4. Blockades, in order to be binding, must be effective; that is to say, maintained by force sufficient really to prevent access to the coast of the enemy.

[Translation.]

PROTOCOL No. 24.-SITTING OF APRIL 16, 1856.
(Extract.)

On the proposition of Count Walewski, and recognising that it is for the general interest to maintain the indivisibility of the four principles mentioned in the Declaration signed this day, the Plenipotentiaries agree that the Powers which shall have required it or which shall have acceded to it, cannot hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not at the same time rest on the four principles which are the object of the said Declaration.

Upon an observation made by the Plenipotentiaries of Russia, the Congress admits that as the present resolution cannot have any retroactive effect, it cannot invalidate antecedent Conventions."

for the purpose of obtaining its adhesion to the principles therein contained.

Nearly two years since the President submitted, not only to the powers represented in the late Congress at Paris, but to all other maritime nations, the second and third propositions contained in that declaration, and asked their assent to them as permanent principles of international law. The propositions thus submitted by the President were:

"1. That free ships make free goods-that is to say, that the "effects or goods belonging to subjects or citizens of a power or State "at war, are free from capture and confiscation when found on board "of neutral vessels, with the exception of articles contraband of war;"

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2nd That the property of neutrals on board an enemy's vessel, "is not subject to confiscation, unless the same be contraband of "war."

It will be perceived that these propositions are substantially the same as the second and third in the "Declaration" of the Congress at Paris.

Four of the Governments with which negotiations were opened on the subject by the United States have signified their acceptance of the foregoing propositions. Others are inclined to defer acting on them until the return of peace should furnish a more auspicious time for considering such international questions. The proceeding of the Congress of the Plenipotentiaries at Paris, will as a necessary consequence, defeat the pending negotiations with the United States, if the two following propositions contained in Protocol N° 24; are acceded to:-first that the four principles shall be indivisible; and second, that the powers which have signed or may accede to the "Declaration" shall not enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not, at the same time, rest on the four principles which are the object of said "Declaration", As the indivisibility of the four principles and the limitation upon the sovereign attribute of negotiating with other powers are not a part of the "Declaration," any nation is at liberty to reject either or both, and to act upon the "Declaration " without restriction acceding to it in whole or in part. In deliberating on this important subject it behooves all powers to consider, and, if they think proper, to act upon this distinction. All the powers which may accede to that "Declaration " and the subsequent restrictions contained in the 24th Protocol, will assume an obligation which takes from them the liberty of assenting to the propositions submitted to them by the United States, unless they at the same time surrender a principle of maritime law which has never been contested the right to employ privateers in time of war.

The second and third principles set forth in the "Declaration," being those submitted to other maritime powers for adoption by this Government, it is most anxious to see incorporated by General consent into the Code of maritime law, and thus placed beyond future controversy or question. Such a result securing so many advantages to the commerce of neutral nations, might have been reasonably expected but for the proceedings of the Congress at Paris, which require them to be purchased by a too costly sacrifice—the surrender of a right which may well be considered as essential to the freedom of the seas.

The fourth principle contained in the "Declaration," namely:"Blockades in order to be binding must be effective; that is to say, "maintained by a force sufficient really to prevent access to the coast "of the enemy;"-can hardly be regarded as one falling within that class with which it was the object of the Congress to interfere; for this rule has not for a long time been regarded as uncertain, or the cause of any " deplorable disputes." If there have been any disputes, in regard to Blockades, the uncertainty was about the facts, but not the law. Those nations which have resorted to what are appropriately denominated "paper blockades," have rarely, if ever, undertaken afterwards to justify their conduct upon principle; but have generally admitted the illegality of the practice, and indemnified the injured parties. What is to be adjudged "a force sufficient really to prevent access to the coast of the enemy" has often been a severely contested question; and certainly the declaration which merely reiterates a general undisputed maxim of maritime law does nothing towards relieving the subject of blockade from that embarrassment. What force is requisite to constitute an effective blockade remains as unsettled and as questionable as it was before the Congress at Paris adopted the "Declaration."

In regard to the right to employ privateers which is declared to be abolished by the first principle put forth in the "Declaration ❞— there was, if possible, less uncertainty. The right to resort to privateers, is as clear as the right to use public armed ships, and as incontestable as any other right appertaining to belligerents. The policy of that law has been occasionally questioned, not however by the best authorities but the law itself has been universally admitted, and most nations have not hesitated to avail themselves of it, It is as well sustained by practice and public opinion, as any other to be found in the maritime Code.

There is scarcely any rule of international law which particular nations in their treaties have not occasionally suspended or modified in regard to its application to themselves. Two treaties only can be found, in which the contracting parties have agreed to abstain from the employment of Privateers in case of war between them. The

first was a treaty between the King of Sweden and the States General of the United Provinces in 1675. Shortly after it was concluded the parties were involved in war, and the stipulation concerning privateers was entirely disregarded by both: The Second was the Treaty of 1785 between the United States and the King of Prussia. When this treaty was renewed in 1789 [1799], the clause stipulating not to resort to privateering was omitted. For the last half century, there has been no arrangement by treaty or otherwise, to abolish the right, until the recent proceedings of the plenipotentiaries at Paris.

By taking the subject of privateering into consideration, that Congress has gone beyond its professed object, which was, as it declared, to remove the uncertainty on points of maritime law, and thereby prevent "differences of opinion between neutrals and belligerents, and consequently serious difficulties and even conflicts." So far as the principle in regard to privateering is concerned the proceedings of the Congress are in the nature of an act of legislation, and seek to change a well settled principle of international law.

The interest of Commerce is deeply concerned in the establishment of the two principles which the United States had submitted to all maritime powers, and it is much to be regretted that the Powers represented in the Congress at Paris, fully approving them should have endangered their adoption by uniting them to another inadmissible principle, and making the failure of all, the necessary consequence of the rejection of any one. To three of the four principles contained in the "Declaration there would not probably be a serious objection from any quarter, but to the other, a vigorous resistance must have been anticipated.

The policy of the law which allows a resort to privateers has been questioned for reasons which do not command the assent of this Government. Without entering into a full discussion on this point, the Undersigned will confront the ordinary and chief objection to that policy, by an authority which will be regarded with profound respect, particularly in France. In a commentary on the French Ordonnance of 1668, Valin says:

"However lawful and time-honored this mode of warfare may be, "it is nevertheless disapproved of by some pretended philosophers. "According to their notions, such is not the way, in which the State " and the Sovereign are to be served; whilst the profits which indi"viduals may derive from the pursuit are illicit, or at least disgrace"ful. But this is the language of bad citizens, who under the stately mask of a spurious wisdom and of a craftily sensitive conscience, "seek to mislead the judgment by a concealment of the secret motive, "which gives birth to their indifference for the welfare and advan

"tage of the State. Such are as worthy of blame, as are those "entitled to praise, who generously expose their property and their "lives to the dangers of privateering."

In a work of much repute, published in France, almost simultaneously with the proceedings of the Congress at Paris, it is declared that "The issuing of letters of marque, therefore, is a constantly "customary belligerent act. Privateers are bona fide war vessels, "manned by volunteers, to whom by way of reward, the Sovereign resigns such prizes as they make; in the same manner as he some"times assigns to the land forces a portion of the war contributions levied on the conquered enemy" [Pistoye et Duverdy, des Prises Maritimes.]

It is not denied, that annoyances to neutral commerce, and even abuses, have occasionally resulted from the practice of privateering; such was the case formerly, more than in recent times; but when it is a question of changing a law the incidental evils are to be considered in connection with its benefits and advantages. If these benefits and advantages can be obtained in any other way without injury to other rights, these occasional abuses may then justify the change however ancient or firmly established may be the law.

The reasons which induced the Congress at Paris to declare privateering abolished, are not stated, but they are presumed to be only such as are usually urged against the exercise of that belligerent right.

The prevalence of Christianity and the progress of civilization, have greatly mitigated the severity of the ancient mode of prosecuting hostilities. War is now made an affair of Governments. It is the public authority which makes and carries on war; individuals are not permitted to take part in it, unless authorized to do so by their Government.

It is a generally received rule of modern warfare, so far at least as operations upon land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual property by an army, even, in possession of an enemy's country, is against the usage of modern times. Such a mode of proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by special circumstances. Every consideration which upholds this sentiment in regard to the conduct of a war on land, favors the application of the same rule to the persons and property of citizens of the belligerents found upon the ocean.

It is fair to presume that the strong desire to ameliorate the severe usages of war by exempting private property upon the ocean from hostile seizure, to the extent it is usually exempted on land, was the