CHAPTER X

THE DECLARATION OF PARIS

AMERICAN ADHERENCE INVITED

The representatives of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, on April 16, 1856, adopted at Paris a declaration concerning maritime law. This declaration was communicated to the Government of the United States by all of these states except Great Britain and Turkey, for the purpose of obtaining American adhesion to its principles. These principles were:

"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 a force sufficient really to prevent access to the coast of the enemy." 1

Accompanying the declaration was a protocol, No. 24, containing two propositions: first, that the four above principles should be indivisible and, second, that the powers which had signed or might accede to the declaration should not enter into any arrangement regarding the application of the right of neutrals which did not at the same time rest on the four principles which were the object of the declaration.1

REPLY OF THE UNITED STATES

2

Secretary of State Marcy on July 28, 1856, reported to the diplomatic representatives at Washington of Austria, France, Prussia, Russia, and Sardinia, the stand of the American Government on the principles of the declaration. He mentioned that two years earlier the President had submitted to maritime nations propositions substantially the same as the second and third principles and had asked their assent to them as permanent principles of international law. Some governments with which negotiations were opened had signified their acceptance of those propositions, while

1

Document 109, footnote 2, p. 381.

2

Document 109, p. 381.

others were inclined to defer action until the return of peace. The proceedings of the Paris Congress would defeat the pending negotiations of the United States if the two propositions of protocol No. 24 were acceded to. The Secretary thought that, as these two propositions were not a part of the declaration, any nation was at liberty to reject either or both and to act upon the declaration without restriction, acceding to it in whole or in part. All powers ought to act upon this distinction if they thought proper. Those acceding to the declaration and the subsequent restrictions would assume an obligation which took from them the liberty of assenting to the propositions submitted by the United States, unless they at the same time surrendered "a principle of maritime law which has never been contested the right to employ privateers in time of war."

Marcy said the United States was most anxious to see the second and third principles of the declaration incorporated into the code of maritime law and thus placed beyond future controversy or question. He thought such a result which would secure so many advantages to neutral commerce might have been reasonably expected but for the proceedings of the Paris Congress which required them to be purchased by too costly a sacrifice-the surrender of a right which might well be considered "essential to the freedom of the seas." It was much regretted that the powers represented at Paris, fully approving the two principles, 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."

Marcy considered that the fourth principle regarding blockades could hardly be regarded as one falling within that class with which it was the object of the Congress to interfere, for the rule concerning binding blockades had not for a long time been regarded as uncertain or the cause of any deplorable disputes. If there had been any disputes regarding blockades the uncertainty was about the facts but not the law. Those nations which had resorted to what were appròpriately regarded as "paper blockades " had rarely, if ever, undertaken afterwards to justify their conduct on principle, but had generally admitted the illegality of the practice and indemnified the injured parties. What was to be adjudged a force sufficient really to prevent access to the coast of the enemy had often been a severely contested question, and certainly the declaration, which merely reiterated a generally undisputed maxim of maritime law, did nothing toward relieving the subject of blockade from that embarrassment. Regarding the right to employ privateers, which was declared abolished by the first principle, Marcy stated it was as clear as the right to use public armed ships and as incontestable as any other

belligerent right. By taking this subject into consideration Marcy considered the Congress had gone beyond its professed object, which was to remove the uncertainty on points of maritime law, and had sought to change a well-settled principle of international law.

Marcy thought it was 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 was usually exempted on land, was the chief inducement which led the Congress to declare privateering abolished. If this was the object of the declaration adopted at Paris, the Congress had fallen short of the proposed result by not placing individual effects of belligerents beyond the reach of public armed ships as well as privateers. If such property was to remain exposed to seizure by naval ships of the adverse party, it was difficult to perceive why it should not in like manner be exposed to seizure by privateers which were in fact but another branch of the public force of the nation commissioning them.

If the principle of capturing private property upon the ocean were given up, that property should be as secure from molestation by public armed vessels as by privateers; but if that principle were adhered to, it would be worse than useless to attempt to confine the exercise of the right of capture to any particular description of the public force of the belligerents. Every nation which authorized privateers was as responsible for their conduct as it was for that of its navy and would as a matter of prudence take proper precaution against abuses. If a distinction were attempted, it would be very difficult to define the particular class of the public maritime force which should be regarded as privateers.

The United States considered that powerful navies and large standing armies, as permanent establishments, were "detrimental to national prosperity and dangerous to civil liberty "; that expense in keeping them up was burdensome to the people; that they were in some degree a menace to peace among nations; that a large force ever ready to be devoted to the purposes of war was a temptation to rush into it. The United States had ever been adverse to such an establishment and could never acquiesce in any change of international law which might render it necessary to maintain a powerful navy or large standing army in time of peace.

Marcy felt that "It certainly ought not to excite the least surprise that strong naval powers should be willing to forego the practice, comparatively useless to them, of employing privateers upon condition that weaker powers agree to part with their most effective means of defending their maritime rights." If the use of privateers were abandoned, the American Government "seriously appre

hended" that the dominion over the seas would be surrendered to powers with large navies.

Those nations which had at any time the control on the ocean would be strongly tempted to regulate its use in a manner to promote their own interests. The ocean was the common property of all nations and each should retain all the means it possessed to defend the common heritage. The injuries likely to result from surrendering the dominion of the seas to one or a few nations with powerful navies arose mainly from the practice of subjecting private property on the ocean to seizure by belligerents. Justice and humanity demanded that this practice should be abandoned and that the rule in relation to such property on land should be extended to it when found upon the high seas.

The President therefore proposed to add to the first proposition in the declaration of the Congress at Paris, the following words: "and that the private property of the subjects or citizens of a belligerent on the high seas, shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband." Thus amended, the Government of the United States would adopt it, together with the other three principles of the declaration. Should the amendment be unacceptable, the President would approve the second, third, and fourth propositions, independently of the first. Without the proposed modification of the first principle, he could not convince himself that it would be wise or safe to change the existing law in regard to the right of privateering.

In connection with this subject, Marcy considered that a due regard for neutrals seemed to require "some modification, if not an abandonment of the doctrine in relation to contraband trade." Neutral nations should not be injuriously affected in their commercial intercourse by those choosing to involve themselves in war, provided the citizens of such neutral nations did not directly interfere with belligerent military operations. The laws which interdicted all trade with besieged or blockaded places afforded all the remedies against neutrals that the belligerent parties could justly claim. A further interference with the ordinary pursuits of neutrals in no way to blame for the state of hostilities was contrary to the obvious dictates of justice. If this view of the subject could be adopted, the right of search, which had been the source of so much annoyance and so many injuries to neutral commerce, would be restricted to such cases only as justified the suspicion of an attempt to trade with places actually in a state of siege or blockade. Though the United States did not propose to embarrass the other pending negotiations regarding the rights of neutrals by pressing for this change in the law of contraband, she would be ready to give it her sanction

"whenever there is a prospect of its favorable reception by other maritime powers."

A copy of this long note of July 28 was sent to diplomatic representatives of the United States in American and European countries with the exception of Great Britain.1 With it Secretary of State Marcy sent an instruction directing each representative to propose that the Government to which he was accredited should "enter into an arrangement for the adherence of the United States to the four principles of the declaration," provided the first of them was amended as specified in the note of July 28.

In the same instruction Secretary Marcy stated that it was important for the President to know how these Governments would treat American privateers in case the United States should be at war with any other power which had acceded to the declaration. Though the President did not seriously apprehend that American rights in regard to the employment of privateers would be directly or indirectly affected by the new state of things which might arise out of the proceedings of the Paris Congress, yet it would be gratifying to him to be assured by each of these Governments "that no new complications in our relations with it are likely to spring from those proceedings."

Message of President PIERCE

President Pierce informed Congress on December 2, 1856, that the two principles for the security of maritime commerce submitted by the United States in 1854 to the consideration of maritime nations "were not presented as new rules of international law, having been generally claimed by neutrals, though not always admitted by belligerents." Russia and several neutral powers had promptly acceded to these propositions, and France and Great Britain, in common with most European states, while forbearing to reject, did not affirmatively act upon the overtures of the United States. While the question was in this position the declaration of Paris was issued, containing the two principles which the American Government had submitted nearly two years before, and added to them the propositions that "Privateering is and remains abolished" and that " Blockades in order to be binding must be effective." The United States was invited to accede to this declaration by all the powers represented at Paris except Great Britain and Turkey.

To the last of these two additional propositions-that in relation to blockades—the President thought there could certainly be no objection. As to the article regarding privateering, he repeated in

'Document 110, p. 392.

2 Document 111, p. 394.