66

Having for particular reasons forborne to use all the measures in our power for the restitution of the three vessels mentioned in my letter of August 7th, the President thought it incumbent on the United States to make compensation for them; and, though nothing was said in that letter of other vessels taken under like circumstances, and brought in after the date of that letter, the President determined that all the means in our power should be used for their restitution. If these fail us, as we should not be bound by our treaties to make compensation to the other powers, in the analogous case, he did not mean to give an opinion that it ought to be done to Great Britain. But still, if any cases shall arise subsequent to that date, the circumstances of which shall place them on similar grounds with those before it, the President would think compensation equally incumbent on the United States" (Jefferson's Works, vol. iii., pp. 229, 265, 285).

By Art. VII. of the treaty of 19th of November, 1794 (Jay's treaty)—

"It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793, a copy of which is annexed to this treaty, the complaints of the parties shall be, and hereby are, referred to the commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in like manner relative to these as to the other cases committed to them" (United States Statutes at Large, vol. viii., p. 121).

"While in the early part of the present century," says our most learned living jurist, "the political department of the American Government was engaged in steadily combating the overstrained constructions of the law of maritime war, set up by the courts and publicists of England, it is remarkable that not a few of the most exceptionable of those constructions were at the same time being transported, one by one, into our own jurisprudence by the judicial department of our Government, with a prevailing tendency to exaggerate the rights of prize in the interest of captors, that is, of maritime depredation."

Indeed, the Supreme Court, in a case growing out of the War of 1812, declared that, as the United States at one time formed a component part of the British Empire, their law was, as understood at the time of the separation, the prize law of the United

States, though no recent rules of the British courts were entitled to more respect than those of other countries; yet that, where there were no reasons to the contrary, they should regard the decisions of the English courts of admiralty (Cranch's Reports, vol. ix., p. 191. Thirty Hogsheads of Sugar vs. Boyle).

Recurring to the different systems as understood previously to the Crimean War, it was very evident that if two nations situated like England and France, one possessing the largest military marine in the world, and the other a navy only inferior to that of its ally, were, as co-belligerents, each to maintain its own peculiar principles of maritime law, neutral commerce must altogether cease. A compromise of principles was necessary to the coöperation of the navies of the allies.

Accordingly, on occasion of the commencement of the war against Russia, the ministers of England and France communicated to the American Secretary of State the "declaration" of March 28, 1854. By it England waived the right of seizing enemy's property on board of a neutral vessel unless it be contraband of war, and France made a similar concession with respect to neutral property laden on board of an enemy's vessel.

Russia, when her war with Turkey extended to England and France, promulgated decrees declaring that enemy's goods would be regarded as inviolable, and might be imported into Russia, and the property of neutral powers on board of enemy's ships would not be subject to confiscation except articles contraband of war, "the carrying of which," it says, "would render even a neutral vessel a good prize." So greatly were the laws of war mitigated that, with the single exception of carrying enemy's goods in enemy's vessels, the trade, such as it ordinarily exists in time of peace, could scarcely have been said to be interrupted.

The formulating, at the termination of the war, by the parties to it of the principles announced at its commencement, was anticipated by a treaty between the United States and Russia of July 22, 1854. The principles of free ships, free goods, and freedom of neutral property in an enemy's vessel from capture and confiscation, except it be contraband of war, were established, with a view to their adoption as permanent and immutable. It proposed the accession of all nations who might assent to them. That of Prussia was already given by her existing treaty.

The declaration of the Congress of Paris, besides the articles in reference to the immunity of the cargo of an enemy, when not contraband of war under a neutral flag, and neutral property under an enemy's flag, adopted the principle of blockade substantially as given in the Russian declaration of neutrality.

The first article of the declaration of 1856 proclaims that "privateering is and remains abolished.”

Adopted without being accompanied by any provision according immunity to private property at sea, it would apparently operate to the exclusive advantage of the great naval powers, particularly England, who would, in the event of a war, have at their mercy the entire merchant marine of their enemies, while their own would be unmolested.

The possibility of such a state of things was, of course, sufficient to prevent the sanction of the proposition by our sagacious Secretary of State, Mr. Marcy, unless the views which induced the provisions in the treaty with Prussia as drawn by Dr. Franklin, and the propositions subsequently made to England, France, and Russia, by Mr. J. Q. Adams when Secretary of State, were carried out to their full intent, and property at sea placed on the footing of immunity which it was assumed that it possessed on land.

The obligation of the "declaration," even on the parties to it, was always very doubtful. On this point Sir Travers Twiss cites with approval the following passage from our last edition of Wheaton :

"The declaration is only a pledge on the part of the states adhering to it not to issue commissions for that purpose, and does not of itself create any new offense against the law of nations; while the admission of the Congress, made at the suggestion of the Russian plenipotentiary, that it would not be obligatory on the signers of the declaration to maintain the principle of the abolition of privateering against those which did not accede to it, received a practical construction in the course adopted by England and France, and other countries in their declarations with respect to the pending contest in America" (Twiss, "Duties and Rights in Time of War," p. 423).

It soon appeared that all apprehensions that the abolition of privateering was to work any change in the relative power of

In former times, France

maritime nations was without reason. was in the habit of carrying on her wars with vessels furnished by the merchants, and there was nothing in the "declaration" to prevent its being done by other nations. An act of Congress in 1863 authorized letters of marque and reprisal, but no commissions were issued. The United States had, however, an opportunity of manifesting to the authors of the "declaration" how utterly inefficient it ever must be in suppressing the maritime resources of an enemy. With the regular navy, the United States would have been utterly incapable of blockading the Southern coast. It was effected by extending to operations at sea the same system of a volunteer establishment as they had on land.

At the commencement of the war privateers were fitted out by the Confederates; but experience showing the disabilities to which they were exposed in foreign ports, as compared with public ships-of-war, the system was soon discontinued, and the Alabama and the other cruisers-for whose depredations Great Britain was made answerable-claimed the rights of public shipsof-war, and were commanded by officers commissioned by the Confederate States.

The suggestion furnished by the course of the United States in supplementing her regular by a volunteer navy was followed by Prussia during the Franco-German War of 1870. She invited ship-owners to lend their ships for the war, for a remuneration. The crews were to be hired by the owners, but were "to enter the Federal navy for the continuance of the war, wear its uniform, acknowledge its competency, and take oath to the articles of war." In case these ships destroyed or captured ships of the enemy, certain premiums were to be paid to the owners for distribution among the crews. The French Government complained to Lord Granville about this decree, alleging that it was, under a disguised form, the reëstablishment of privateering; but Lord Granville, after consulting the then law officers-Sir Travers Twiss, Sir R. Collier, and Sir John Coleridge-replied:

"They advise me that there are, in their opinion, substantial differences between the proposed naval volunteer force sanctioned by the Prussian Government and the system of privateering which, under the designation of 'la course,' the Declaration of Paris was

intended to suppress, and that her Majesty's Government cannot object to the decree of the Prussian Government as infringing the Declaration of Paris" (Solicitor's Journal, vol. xxii., p. 523).

My illustrious colleague of the Institute of International Law, Bluntschli, has well shown that the suppression of privateering does not mean the renunciation of the voluntary service of the citizens of a country-or even of foreigners-in maritime war.

"Nothing," he adds, "prevents a state from forming a body of volunteers to be employed as a part of the auxiliary force of its army; so a maritime nation may, with entire propriety, reënforce its fleet by adding vessels previously employed in commerce. An appeal may even be made to all the forces of the nation-to a sort of naval Landsturm-in appealing to all the maritime resources of the nation to combat the enemy. The characteristic difference-and which is the reason for rejecting privateering-is, that it is not militarily organized, that it does not carry on a contest of power against power, but it is a contest of individual against individual" (Bluntschli, "Revue de Droit International," vol. ix., p. 552).

If it might be supposed in the War of the Crimea that the civilized nations of the world had reached that point at which wars become solely contests involving the opposing military forces of the states, leaving private individuals to conduct their own affairs unaffected by them, it was not so as to the War of Secession.

It is true that civil wars are calculated to affect the passions of men to a degree which does not exist in foreign wars. I have now before me a letter from the late Mr. Justice Nelson, dated August 4, 1873, respecting a judgment of the Supreme Court of the United States in a case which relates to breach of blockade, for which, as being rendered in violation of the law of nations, compensation was made under the late mixed British and American Commission :

"The truth is," he said, "the feeling of the country was deep and strong against England, and the judges, as individual citizens, were no exception to this feeling. As to the feeling of hostility to England at the time, Judge Black told me that, after my dissenting opinion was read, one of the most eminent members of the bar had said to him that the delivery of it was the greatest mistake of my life.' Now," added Judge Nelson, "that the passions and prejudices