PRELIMINARY REMARKS.

The following is the preface to a pamphlet submitted by me, in March last, to Congress:

"In Mr. Fillmore's second annual message, in a passage understood to have been furnished by Mr. Webster, then Secretary of State, we are told that one of the most eminent of British statesmen said in Parliament, while a minister of the Crown, "that if he wished for a guide in a system of neutrality, he should take that laid down by America in the days of Washington and the secretaryship of Jefferson"; and we see, in fact, that the act of Congress of 1818 was followed the succeeding year by an act of the Parliament of England substantially the same in its general provisions.'

"Of the same period, Mr. Hall, in the second edition of his work on International Law (2d ed., 1884, § 213), thus speaks: The United States had the merit of fixing it (the doctrine of neutrality) permanently. On the outbreak of war in Europe in 1793 a newly-appointed French minister, Mr. Genêt, on landing at Charleston, granted commissions to American citizens who fitted out privateers, and manned them with Americaus, to cruise against English commerce. Immediate complaint was made by the English minister, who expressed his "persuasion that the Government of the United States would regard the act of fitting out those privateers in its ports as an insult offered to its sovereignty." The view taken by the American Government was in fact broader, and Mr. Jefferson expressed it clearly and tersely in writing to Mr. Genêt.

* Taking this language straightforwardly, without forcing into it all the meaning which a few phrases may bear, but keeping in mind the facts which were before the eyes of Mr. Jefferson when he penned it, there can be no doubt that the duties which it acknowledges are the natural if not inevitable deductions from the general principles stated by Bynkershoek, Vattel, and De Martens; and there can be as little doubt that they had not before been frankly fulfilled. *** The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations.'

"The United States of America,' says Sir Robert Phillimore (1 Int. Law, 3d ed., 1879, p. 555), 'began their career as an independent country under wise and great auspices, and it was the firm determination of those who guided their nascent energy to fulfill the obligations of international law as recognized and established in the Christian

Commonwealth of which they had become a member. They were sorely tried at the breaking out of the war of the first French Revolution, for they had been much indebted to France during their conflict with their mother country, and were much embarrassed by certain clauses relating to privateers in their treaty with France of 1778; but in 1793, under the Presidency of Washington, they put forth a proclamation of neutrality, and, resisting both the threats and the blandishments of their recent ally, took their stand upon sound principles of international law, and passed their first neutrality statute of 1794. The same spirit induced the Government of these States at that important crisis when the Spanish colonies in America threw off their allegiance to the mother country, to pass the amended foreign enlistment statute of 1818; in accordance with which, during the next year, the British statute, after a severe struggle, and mainly by the great powers of Mr. Canning, was car ried through Parliament'

"Sir Robert Phillimore, in the passage last quoted, assigns to the Government of the United States the credit of establishing liberal and humane principles of international law at two great epochs :-that of the first French revolutionary war during the administration of Washington and the secretaryship of Jefferson, and that of the reconstitution of the relations of the great powers of the civilized world consequent upon the overthrow of the Spanish supremacy in South America, and the triumph which was then secured to liberal principles by the joint action of England and of the United States in their resistance to the projects of the Holy Alliance. As leader in the first of these epochs of American statesmanship Mr. Jefferson is entitled to the pre-eminence, though there is no question that he was greatly aided in coming to his conclusions by the calm wisdom of Washington. Mr. Monroe was President during the second of these epochs; and the private letters to and by him deposited in the Department of State show that he was aided in reaching the positions which were announced by his administration in this relation, not merely by his cabinet, including Mr. J. Q. Adams, Mr. Calhoun, Mr. Wirt, and Mr. Crawford, but by Mr. Jefferson and Mr. Madison, whom he freely and constantly consulted as to each step in the important action which he then took in the domain of international law.

"But it is not in these two epochs alone that the statesmen of the United States showed commanding ability in this important department both of statesmanship and of jurisprudence. I do not desire to refer to Secretaries of State who are now living, or who, if recently dead, are still associated with immediate political affairs. But when among those who filled the secretaryship in prior days we look back on Madison, on Monroe, on John Quincy Adams, on Clay, on Van Buren, on Edward Livingston, on Forsyth, on Clayton, on Webster, on Calhoun, on Edward Everett, on Marcy, on Buchanan, on Cass, and on Seward, it is impossible not to see that the continuous exposition of international law, so far as concerns this country, fell into the hands of men who were among the first statesmen and jurists of their age, singularly fitted to maintain in all relations, what was maintained in the two relations just noticed, the leadership in the formation of a liberal and humane system of international jurisprudence. And they have ably done this work. I am not unfamiliar with the writings on international law of foreign statesmen and jurists; I have carefully studied not merely the messages of our Presidents, but the volumes, now nearly four hundred in number, in which are recorded (with the exceptions to be pres

ently noted) the opinions of our Secretaries of State; and after a careful comparison of those two classes of documents I have no hesitation in saying not only that the leadership ascribed to our statesmen in the two great epochs above noticed is maintained in other important relations, but that the opinions of our Secretaries of State, coupled with those of our Presidents as to which they were naturally consulted, form a body of public law which will stand at least on a footing of equality with the state papers of those of foreign statesmen and jurists with which it has been my lot to be familiar.

"But where are to be found the documents which embody these utterances of those charged with the direction of our foreign affairs? It is a fact of great moment to us at present that these documents, in the main, are inaccessible to the mass of those to whom their study is important, as well as to most of those who would desire to appeal to them as guides. I append hereto a table of the standards to which I have resorted in making up the following pages; and it will be seen that three-fourths of them are still in manuscript, accessible only by special permission of the Secretary of State. It is true that the earlier papers of the Department were published, though somewhat imperfectly, in two distinct series of what are called 'State Papers'; and it is true also, that from time to time documents from the Department were printed by order of Congress; that from 1861 to 1868, the Department issued compilations of its correspondence on foreign affairs; and that in 1870, the publication of such correspondence was finally established as a matter of course.

"But, in respect to these several sources of authority, the following remarks may be made:

"(1) In the manuscript records many important papers are omitted. A sudden call from Congress came, for instance, to which a reply was furnished by the Secretary, and this reply was forwarded, as often happened, without being entered, as it should have been, in the 'Report Book,' which is assigned for such papers. But by far the most commou cause of omission is the occasional use, by both Presidents and Secretaries, of informal letters, for the purpose of personal explanation of their action and policy. Some of these letters will be found in the published volumes of the works of Mr. Jefferson, Mr. Madison, and Mr. Webster. A far larger portion of them may be found in the unpub. lished papers of Mr. Jefferson, Mr. Madison, and Mr. Monroe, now deposited in the Department of State. I have drawn, in my present work, largely from both these sources, as well as from the manuscript records. "(2) The printed documents, whether contained in reports to Congress or in the 'State Papers,' or in the annual publications of the Department, are necessarily defective. This arises not merely because many important documents, or parts of documents, are kept back at the time, from the fact that their publication might not be consistent with public interest, but because expositions of general rules, which are of so great interest in a work such as that in which I am now engaged, are not of equal interest in publications whose object is to report the action of the Government in concrete cases.

"(3) So far as concerns the publications to which I have referred, it must be noticed that not only do they cover only limited sections of time in our political history; not only are they necessarily imperfect in their exposition of the action of the Department even in the periods they cover; not only do they suppress passages, which though of great future interest in settling principles, it may be impolitic at the time to make

public; not only from their voluminousness and lack of system is it a work of much time and skill to find in them rulings pertinent to any particular pending issue; but they are themselves in many important cases unattainable. The earlier publications are out of print. Documents printed by Congress are, from time to time, destroyed in masses by Congressional direction; and in fact, were this not done, the public offices and vaults of Washington would be gorged with documents ninetenths of which have ceased to be called for and are without interest to any but the antiquarian. But of the serious effects of this destruction, in respect to other documents of immense public interest, I beg to give the following illustrations:

"Mr. Fillmore's second annual message contains an exposition of international law, as applied to our then foreign relations, which is understood to have been furnished by Mr. Webster, and which is one of the most masterly papers which has been produced on the topic with which we are now concerned. Now, the only detached copy of this message to be found in the library of the Department of State is cut out from one of the newspapers of the day; nor is any copy now obtainable from the Congressional records, or, sr far as I can learn, from any private publishing house.

"Mr. Everett, during the short period in which he filled the secretaryship (the period intervening between the death of Mr. Webster and the accession of Mr. Marcy as Secretary in the administration of Mr. Pierce), prepared, aided by notes left by Mr. Webster, instructions on the policy to be adopted towards Cuba by the United States, as affected by the question immediately before him of a proposed joint agreement with European powers of abstention from any future annexation of Cuba. These instructions, signed and issued by Mr. Everett, were afterwards, after grave consideration, adopted by Mr. Marcy. I must here express my opinion that for wisdom and eloquence they are unexcelled by any papers that have ever issued from the State Department; and that they contain an exposition of our true policy as to territorial accretion, which, for its statesmanlike power, its non-partisan broadness of base, as well as for its attractiveness of style, peculiarly fit it to be one of the standards to which political authorities of the future should appeal. Yet of these instructions of Mr. Everett, occupying as they did, when printed, a pamphlet of sixty-four pages, I have been unable, though I have searched most diligently, to obtain a single copy. The edition published in Boston is exhausted, nor is it likely that it would be reprinted by private enterprise.

"Another illustration may be found in Mr. Marcy's various expositions of the Koszta case. One or two of these may still be obtained in antiquarian stores. But that which I regard the ablest, in which he discusses the law of domicil with almost unequaled sagacity and exactness, has never found its way into print.

"We fall back, then, upon the manuscript copies of the Department of State, and we are admonished, by the destruction of some of the earlier volumes at the burning of Washington by the British, as well as by the loss of public documents in other Departments by what are called accidental fires, that in respect to these standards we hang on a line by no means insured from perishing.

"Whether these records should be reprinted as a whole is a question of interest. If they were, they would cover four hundred volumes of the ordinary law-book size. It would be difficult for one seeking in haste to find rulings on some pending question of international law,

to come to an accurate result from the study, in the short time assigned to him, of so vast a mass of authorities.

"I have endeavored to meet this want by the present digest. In seeking for material I have turned every page of the volumes of records in the Department to which I have referred; and I have consulted in connection with them the various publications to be found in the annexed table. From these standards I have copied whatever, in the way of principle, bears on international law; and the extracts I have thus made I have arranged in the form of a digest, placing them chronologically under their respective heads. Of the materials that apply, in the way of principle, to the task before me, I believe I have omitted no passages giving the deliberate opinions of Secretaries from the begin ning of the Government to the present day. I am conscious of no party predilections in making these extracts; nor in fact is the topic one on which party predilections could operate. We have been, throughout the country, one in our principles of international law from the foundation of our Government to the present day. If there was an alleged expansion of neutral duty in the late civil war, this was only apparent; and I have to say that no more unqualified assertion of neutral rights is to be found than that contained in Mr. Seward's vindication of his action in the Trent affair. And if sometimes he threw out argumentatively positions inconsistent with those which in other administrations have been part of the settled policy of the Government, these were al ways afterwards modified by him so as to conform to such policy, and had at least the good effect of bringing to the same common ground the British Government of the day, receding in this respect from the ground taken by its predecessors. A more serious departure from this policy might be claimed to exist in the rulings of the Geneva conference; but it must be remembered that the action of this conference was not the action of the Department of State, which not long after the publication of its adjudication disclaimed, as will hereafter be seen, its binding authority. With the exception of these transient fluctuations of opinion, not worked into the Department as part of its permanent system of law, the action of the Department, no matter what may have been the party character of the administration, has been one of consist ent logical progress. There is submission to, and yet not repetition of, the old law laid down by our first administration, as a law which, while distinctively American, has established a jurisprudence for the civilized world. This law is one in its basis, yet, as is the case with all true law whose continued existence depends on its responsiveness to popular conscience and need, adapts itself, in its own instinctive evolution, to the contingencies of each social and political juncture that occurs. "For the purposes of elucidation, I have concluded, in their appropriate heads in this digest, the decisions of the courts of the United States and of the Attorneys-General on the questions involved.

"I am indebted to John B. Moore, esq., of the Department of State, to whose great aid in other respects I am glad to acknowledge my obligations, for a compilation of the rulings of commissions established by the United States, in connection with other powers, for the settlement of points in international dispute."

On July 28, 1886, the following resolution, adopted by Congress, was approved by the President:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That there be printed the usual number