The diplomatic intercourse between the United States and France being at present suspended, the Government has no means of obtaining official information from that country. . . . Hitherto I have thought proper to prevent the sailing of armed vessels except on voyages to the East Indies, where general usage and the danger from pirates appeared to render the permission proper. Yet the restriction has originated solely from a wish to prevent collisions with the powers at war, contravening the act of Congress of June, 1794, and not from any doubt entertained by me of the policy and propriety of permitting our vessels to employ means of defence while engaged in a lawful foreign commerce. It remains for Congress to prescribe such regulations as will enable our seafaring citizens to defend themselves against violations of the law of nations, and at the same time restrain them from committing acts of hostility against the powers at war. In addition to this voluntary provision for defense by individual citizens, it appears to me necessary to equip the frigates, and provide other vessels of inferior force, to take under convoy such merchant vessels as shall remain unarmed. . . .

However we may consider ourselves, the maritime and commercial powers of the world will consider the United States of America as forming a weight in that balance of power in Europe which never can be forgotten or neglected. It would not only be against our interest, but it would be doing wrong to one half of Europe, at least, if we should voluntarily throw ourselves into either scale. It is a natural policy for a nation that studies to be neutral to consult with other nations engaged in the same studies and pursuits.

Attorney General Lee, in August, 1798, maintained that there was with France "not only an actual war" but "a maritime war authorized by both nations." In Congress there was not lacking at that time the opinion that there was a state of war between the United States and France. When Congress enacted various measures for defense, Edward Livingston, later to be Secretary of State and Minister to France, said: "Let no man flatter himself that the vote which has been given is not a declaration of war. Gentlemen know that this is the case."

Later, in 1830, his views had changed, and he saw in these earlier events that: "This was not a case of war, and the stipulations which reconciled the two nations was not a treaty of peace; it was a convention for the putting an end to certain differences."

The Acts passed aimed, like that of May 28, 1798 (1 Stat. L, 561), "more effectually to protect the commerce and coasts of the United States." Here the President is authorized not to declare war, but to use force because depredation had been committed upon American commerce in contravention of the law of nations. This Act authorized in accord with international law the bringing in for action of vessels which "shall have committed, or which shall be found hovering on the coasts of the United States for the purpose of committing dep

redations on the vessels belonging to citizens thereof; and also to retake any ship or vessel of any citizen or citizens of the United States which may have been captured by any such armed vessel." This was distinctly an act to protect the commerce and coasts of the United States.

The Act of June 25, 1798 (1 Stat. L. 572) provided that an American merchant vessel "may oppose and defend itself against any search, restraint, or seizure which shall be attempted upon such vessel." This Act was aimed against attempts by French vessels upon American vessels.

In the case of the Nancy (27 Ct. Cl. R. 99) it was said:

It has been urged that the Statutes of the United States authorize resistance by our merchantmen to French visitation and search, to which there is the simple answer that no single State can change the law of nations by its municipal regulations. This opinion was sustained in 1900 in the case of the Rose (36 Ct. Cl. R. 291), where it was said:

If, therefore, at the time of this seizure there was any conflict between the municipal law of the United States, as exemplified in the statute, and the well-recognized principle of international law, the latter must prevail in the determination of the rights of the parties.

The Rose, after resistance and capture, had been condemned under French law. Chancellor Kent had said:

There may be cases in which the master of a neutral ship may be authorized by the natural right of self-preservation to defend himself against extreme violence threatened by a cruiser grossly abusing his commission; but except in extreme cases a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation and search or be carried into a proximate court for inquiry.

In the case of the Rose it was argued

That the condition existing between the two governments and peoples was such that all respect of neutral right had ceased, and that force, fraud, and violence prevailed, and in that connection much is said as to the right of self-defence.

The court, however, stated

The claimants are treading on very dangerous ground when they urge the higher law of self-preservation. Self-defence is founded on the theory that it is the only remedy, and that, being the only remedy, it presupposes the absence of all law protecting the rights of him who asserts the prerogative of self-defence. If the right of self-defence prevailed to the extent of repelling force by force, and was incident

to the crew of the ship captured, then all other law was silent and war prevailed, which condition would be most disastrous to the case of the claimant.

It was decided that the Rose was not entitled to take the law into its own hands and use force and that the seizure in 1799 and condemnation by the French authorities was lawful.

The Act of July 9, 1798 (1 Stat. L. 578), authorized the President "to instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel." The same Act authorized the commissioning of private vessels for a similar purpose.

The Act of July 7, 1798, had declared treaties between the United States and France at an end because "there is yet pursued against the United States, a system of predatory violence, infracting the said treaties, and hostile to the rights of a free and independent nation."

There was no declaration of war, but there were acts which might properly be regarded as just cause for war. These acts were acts of reprisal against a specified state, sometimes called a condition of limited use of force.

The use of force has been authorized at other times by Congress, as in the Water Witch affair in 1858, and in the controversy with Venezuela in 1890.

In all cases where force is thus used by state against state it should be borne in mind that, as said by the Court of Claims in 1909, "while reprisals are acts of war in fact, it is for the state affected to determine for itself whether the relation of actual war was intended by them." (The Schooner Endeavor, 44 Ct. Cl. 242.)

GEORGE G. WILSON.

SANCTION FOR INTERNATIONAL AGREEMENTS

Whether or not justified, the lack of confidence in international agreements seems in some quarters to have become more general in recent years. Diplomatic agents, and those particularly concerned. with international relations, seem, however, to have no illusions. In ancient times, and often in modern times, Deity has been called upon to witness agreements between tribal or political unities. In early Grecian tribal agreements, a money penalty was provided if either party failed in its obligations, and the penalty was to go as a tribute to the Olympian Zeus. Hostages were early given, and many other

attempts to secure observance of agreements through extraneous pledges may be found. A mediæval treaty makes the parties swear to its observance "by the name of God Almighty, by the Invisible Trinity, by all Divine things, and by the last Day of Judgment." While hostages have not been given for more than a century and a half, the call upon Deity has remained common. Even the Treaty of Paris of 1856 contains the well-worn formula "in the name of Almighty God." The treaty of 1848 between the United States and Mexico, which in Article 21 provides for arbitration in case of disagreement with respect to interpretation of the treaty itself "or with respect to any other particular concerning the political or the commercial relations of the two nations," also opens with the formula "in the name of Almighty God."

A distinguished English publicist in 1867, on reviewing the field of treaty agreement, wrote that "these varied and redoubled promises rested on nothing at all but the good faith they were meant to fortify, and that a penalty which is nugatory, or a pledge which can be circumvented, is not only ineffective, but worse, because it lends a treacherous satisfaction to the conscience, suggests the very subtleties that elude it, and assists the easy work of self-deception." Even if this opinion is too pessimistic it certainly was not based on lack of comprehensive knowledge and wide experience. An eminent German jurist has recently said, "Good faith and mutual confidence are the highest sanction of civil law; it is not so in international law." Other students of world affairs have in recent years felt the need of effective sanctions for treaty agreements. Such sanctions are especially needed at a time when it would be more advantageous for one of the parties to disregard rather than to keep its contractual agreement.

Some recent conventions, such as the Hague Convention of 1907, relative to the Opening of Hostility, provide for penalties. The above convention provides that, as to third parties who would become neutral, the existence of a state of war "shall not take effect in regard to them until after the receipt of a notification." The penalty for failure to make the state of war properly known is to this extent automatic. The Convention of 1907 respecting the Laws and Customs of War on Land, unlike the cosresponding convention of 1899, contained a provision that "a belligerent party which violates the provisions of said regulations shall, if the case demands, be liable to pay compensation." Thus there was introduced a penal sanction for violation of the rules. Discussions such as those of the men experienced in practical poli

tics, members of the Interparliamentary Union, show a growing feeling that agreements between states, however formally made, are not in themselves sufficient sureties for state conduct. If treaties are to be made under the proviso rebus sic stantibus, there is little to assure observance unless in the treaty itself there be some assurance that the question whether conditions remain the same shall be determined equitably and not by the opinion of one party only. There is demanded some international surety that treaties shall not be disregarded at the pleasure of one of the parties without consideration of the rights or supposed rights of the other. Various organizations, such as the League to Enforce Peace, the Central Organization for a Durable Peace, certain of the proposed organizations of neutral states, and other suggested unions, have as a part of their purpose to put a physical or other effective sanction behind international agreements.

There may be just ground for difference of opinion as to the best method by which the observance of treaty agreements may be made more certain. There seems, however, to be little difference of opinion in regard to the question that they should be made more secure. Certain persons claim that many existing treaties are worse than useless and that their provisions should therefore be disregarded. Doubtless there are many such treaties, but the admission of this fact does not imply that one of the parties may legally act in disregard of its treaty obligation. Certainly some method should be found to make it at least inexpedient for a state deliberately to break a treaty contract which it has assumed and upon the fulfilment of which the other parties are relying. It does not require searching investigation of the speeches and writings of those entrusted with the direction of state affairs, to find evidence that simple treaty obligations are not always by them held as prohibiting action in opposition to the treaty if such action would be decidedly for the supposed advantage or interests of the state which they serve.

It is also true that all states do not take the same attitude toward obligations embodied in treaty stipulations. Some states regard such obligations as strictly binding until the treaty is denounced; others have regarded treaties as convenient statements of present policy while some rulers have even gone so far as to declare they were not bound by acts of their predecessors.

The foreign offices of all the leading European states have, since 1914, made clear their desire for an effective sanction for international