summary form the essence of Marcy's statements on the subject in his note of July 28. He mentioned that the amendment proposed on that date had not been rejected; that several governments. had delayed definitive action upon it for the purpose of consulting with others; that the Emperor of Russia had entirely and explicitly approved that modification and would cooperate in endeavoring to obtain the assent of other powers; and that assurances of a similar nature had been received from the Emperor of the French. Finally, the President stated that the present aspect of this important subject allowed us "to cherish the hope that a principle so humane in its character, so just and equal in its operation, so essential to the prosperity of commercial nations" would command the approbation of all maritime powers, and thus be incorporated into the code of international law.

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PROJECT OF 1857

In January and February 1857, Secretary Marcy sent to the American Ministers in Great Britain, France, Prussia, Austria, and Denmark a draft of a convention to be proposed to those Governments. This draft embodied the principles of the declaration of Paris with the addition of the amendment proposed on July 28, 1856. Marcy thought the form of the draft might appear a little incongruous, but thought any considerable change of language might open a discussion which would delay the negotiation. He admitted that the amendment to the first principle of the declaration in the main accomplished the object proposed by the second and third principles. If it had been intended to reach the object contemplated by the amendment when the declaration was under consideration, the proposition contained in it would doubtless have been presented in a form varying from that in the draft. However, if these principles were acceptable there would probably be no objection to the form of the draft.

Early in April the new Secretary, Mr. Cass, informed these Ministers that they were to suspend negotiations on the subject of modifying the rules of maritime law. The President had not yet had time to examine the " questions involved" and he deemed it necessary to do so before further steps in the matter were taken.

TREATIES WITH BOLIVIA, HAITI, AND THE DOMINICAN REPUBLIC The treaty between the United States and Bolivia concluded May 13, 1858, was unique in its provisions relating to war-time commerce and showed the effect of the pending negotiations on the

1 Document 112, p. 396. 42179-34- -7

2

Document 113, p. 399.

subject.1 Article 9, which provided for asylum of ships of the parties, included a statement that the provisions of the article should apply to private vessels of war as well as public, until the parties might "relinquish the right of that mode of warfare, in consideration of the general relinquishment of the right of capture of private property upon the high seas." Article 15 contained the customary provision appearing in Latin American treaties providing for freedom of war-time commerce from port to port of the enemy. Article 16 contained the provision of the Russian treaty of 1854 by which the two parties recognized as permanent and immutable the principles that free ships made free goods and that neutral property in enemy ships was not subject to confiscation. Article 17 contained a list of contraband articles limited strictly to arms and war supplies. Article 18 defined a blockaded port as one "actually attacked by a belligerent force capable of preventing the entry of the neutral.” Treaties containing similar provisions relating to neutral commerce were concluded with Haiti in 1864 and with the Dominican Republic in 1867. The only essential variations were that they contained no definition of an effective blockade and that the latter treaty did not contain the statement of article 9 of the Bolivian treaty about a possible relinquishment of the right of capture of private property on the high seas.

VIEWS OF SECRETARY CASS

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In a long instruction of June 27, 1859, to the Minister in France, Secretary of State Cass gave the views of the American Government on questions of maritime trade which might be affected by the war which had broken out in Europe. Within the next two weeks he sent a copy of this instruction to the American representatives in Great Britain, Russia, Austria, Netherlands, Portugal, Prussia, Spain, Sweden, and Two Sicilies. He considered it important that these views should be communicated to the European powers principally interested, and that the various representatives of the United States in Europe should upon all fitting occasions explain these views to the Governments to which they were accredited and should invoke their aid toward the attainment of the objects indicated. They were to communicate, for the information of the European Governments, the views entertained by the United States on those points of international law presented in the instruction, which we considered established and entitled to the support of all powers. Minister Mason was to carry into effect these instructions in France.

The Secretary stated that there were three principal subjects connected with the rights of belligerent and neutral powers which

1

Document 114, p. 399.

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* Document 115, p. 402.

required the dispassionate consideration of all governments desirous of preventing the most serious complications. On each of these three questions he explained fully the views of the American Government.

1. The status of enemy property found in a neutral vessel. "With respect to the protection of the vessel and cargo by the flag which waves over them, the United States look upon that principle as established, and they maintain that belligerent property on board a neutral ship is not liable to capture." The doctrine permitting forcible entrance to a neutral vessel and seizure of enemy goods found there had been practically repudiated by every modern commercial nation by entering into treaty stipulations providing for its abandonment. During the Crimean War, Great Britain, France, and Russia avowed their adherence to the doctrine of immunity, the latter two without limitation of time, and Great Britain, for the time, "to preserve the commerce of neutrals from all unnecessary obstruction." No disposition had been manifested by any of the states relinquishing the pretension to resume its exercise, nor was it to be expected that if such an effort were made it would be tamely accepted. The United States felt justified in considering the freedom of neutral vessels from interruption when carrying belligerent property an "established principle of intercommunication which ought to be respected as such by all commercial nations." Furthermore, the Declaration of Paris protected the property of each of the signatory states, when engaged in hostilities, from capture on board a neutral ship by an enemy a party to the same act. It was not necessary that a neutral power should have announced its adherence to the declaration in order to entitle its vessels to the immunity promised, because the privilege of being protected was guaranteed to belligerent coparties to that act, and protected their property from capture whenever found in a ship belonging to a neutral nation. Although the United States had declined to become a party to the Paris Conference, that circumstance did not affect our position.

2. The system of blockades. The investment of a place by sea and land with a view to its reduction, preventing it from receiving supplies of men and material necessary for its defense, was a legitimate mode of prosecuting hostilities to which there could be no reasonable objection so long as war was recognized as an arbiter of national disputes. But the blockade of a coast or of commercial positions along it, without any regard to ulterior military operations, and with the real design of carrying on a war against trade, was a proceeding which it was difficult to reconcile with reason. Unfortunately, however, this right had been long recognized by the law of nations.

There could be no reasonable doubt that, by the original theory of blockades, they were considered as a military means of reducing invested places and that upon this narrow foundation the immense superstructure which overshadowed the commercial intercourse of the world had been erected by belligerent powers. In justification of the view John Marshall's statement of September 20, 1800, was quoted. Furthermore, Vattel and Lord Stowell had borne out this view.

However, the principal subject of controversy related to the extent of the force by which a blockade must be maintained in order to be lawful. The law of nations required that the force should be adequate, and the Paris Conference had incorporated this into their declaration. But experience had shown how inefficient was such an injunction to stay the aggressive spirit of belligerents, and the history of paper blockades constituted a memorable and most instructive chapter in the annals of modern warfare. Whole countries had been declared in a state of blockade "with as much apparent confidence in the justice of the measure as if their coasts could be hermetically closed by a single armed cruiser." If blockades were confined to places actually invested, this source of disputes would disappear; for it would be in the interest of the investing power to support its operations with a sufficient force in order to bring the enterprise to a speedy termination.

3. The doctrine of contraband of war. This had been another prolific subject of dispute and animosity in the progress of the hostilities which had latterly disturbed world peace. The right to intercept contraband should be permitted to do as little injury as possible to the commerce of the world, and should be rigidly confined within the narrowest limits compatible with an honest belligerent policy; and in the opinion of the American Government, those limits ought to be made to include only arms and munitions of war. As a means of annoyance, this prohibition against carrying to a belligerent country articles useful for military purposes was of little practical value to its enemy. It found its way into the code of nations when the means of supply were much more restricted and before the progress of improvement had made it possible for almost every nation to provide itself with whatever it might want for offensive or defensive operations. No state would ever be reduced because its enemy might have it in his power to seize and confiscate supplies under the name of contraband of war.

The law of contraband was lamentably vague, and it was scarcely possible that an extensive war should prevail upon the ocean without a belligerent attempt to draw articles of general consumption into the class of contraband. The day was rapidly coming, if it had not

already come, “when such encroachments will be prevented, at the expense, if necessary, of an armed opposition."

There was no accepted enumeration of the articles called contraband. In the absence of a specific list and of clear fixed principle, no method was provided by which disputes inseparable from this state of things might be amicably adjusted. The evils were therefore so obvious that able commentators had proposed special treaties among nations regulating these embarrassing questions. The United States had adopted this policy and had entered into conventional arrangements with several Latin American states and with some of the principal European commercial powers. But these partial arrangements, though useful as far as they went, were very inadequate because they established no uniform rule and because they applied only to the parties themselves, leaving their relations in this respect with other parties to be governed by the code which had proved itself so unworthy of confidence.

Cass considered the law of contraband a shifting one, embracing new articles from time to time as they became applicable to military purposes. The discussion then going on regarding the military character of coal and whether it was now excluded from general commerce as contraband, was a striking illustration of the tendency to enlarge the power of prohibition and seizure. This article, not exclusively nor even principally used in war, entered into general consumption in the arts of peace, to which it was vitally necessary. The attempt to enable belligerent nations to prevent all trade in coal had no just claim for support in the law of nations, and the United States avowed their determination to oppose it so far as their vessels were concerned.

Secretary Cass, in an instruction of December 31, 1859, to the Chargé in France, stated that the approaching assemblage of the representatives of several European powers at Paris might afford favorable opportunity for ascertaining the prevailing sentiment respecting the measures proper to be adopted for defining more accurately the rights of belligerents. The views of the United States upon this subject had been made known to the commercial states of Europe, and their cooperation had been invoked. The breaking out of the late war had furnished a proper opportunity for this procedure on our part, but the peace had unexpectedly intervened before the views of the American Government reached Europe. Though presented as soon as received by the American representatives, still the then existing state of things did not require the immediate action which a general war would have demanded. The American pro1 Document 116, p. 413.