Africa, but that they shall be placed in some part of their dominions in Europe or America, in wholesome situations; that they shall not be confined in dungeons, prison ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs; that the officers, shall be enlarged on their paroles within convenient districts, and have comfortable quarters, and the common men be disposed in cantonments, open and extensive enough for air and exercise, and lodged in barracks, as roomy and good as are provided by the party in whose power they are, for their own troops: that the officers shall also be daily furnished by the party in whose power they are, with as many rations, and of the same articles and quality, as are allowed by them, either in kind or by commutation, to officers of equal rank in their own army; and all others shall be daily furnished by them with such rations as they allow to a common soldier in their own service; the value whereof shall be paid by the other party on a mutual adjustment of accounts for the subsistence of prisoners at the close of the war; and the said accounts shall not be mingled with, or set-off against any others, nor the balances due on them. be withheld as a satisfaction or reprisal for any other article, or for any other cause, real or pretended whatever; that each party shall be allowed to keep a commissary of prisoners, of their own appointment, within every separate cantonment of prisoners in possession of the other; which commissary shall see the prisoners as often as he pleases, shall be allowed to receive and distribute whatever comforts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment, after they shall have been designated to him, such individual officer, or other prisoner, shall forfeit so much of the benefit of this article as provides for his enlargement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other what

§ 17. Franklin

ing.

ever, shall be considered as annulling or suspending this, and the next preceding article; but on the contrary, that the state of war is precisely that for which they are provided; and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature and nations."i

These two articles were drawn up by Franklin, one of on privateer- the negotiators of the treaty, whose philosophic mind had been early drawn to the question of mitigating the practices of war. At the time when he was engaged in negotiating the treaty of peace, 1783, between his own country and Great Britain, he communicated to Mr. Oswald, the British commissioner, his views on the practice of privateering. "It is for the interest of humanity in general, that the occasions of war, and the inducements to it, should be diminished. If rapine is abolished, one of the encouragements of war is taken away, and peace therefore more likely to continue and be lasting. The practice of robbing merchants on the high seas, a remnant of the ancient piracy, though it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it, or to the nation that authorizes it. In the beginning of a war some rich ships, not upon their guard, are surprised and taken. This encourages the first adventurers to fit out more armed vessels, and many others to do the same. But the enemy, at the same time, become more careful, arm their merchant ships better, and render them not so easy be taken; they go also more under protection of convoys; thus, while the privateers to take them are multiplied, the vessels subject to be taken and the chances of profit are diminished, so that many cruises are made wherein the expenses overgo the gains; and as is the case in other lotteries, though some have good prizes, the mass of adventurers are losers, the whole expense of fitting out all

to

i Elliot's American Diplomatic Code, vol. i. pp. 348-352.

the privateers, during a war, being much greater than the whole amount of goods taken. Then there is the national loss of all the labour of so many men during the time they have been employed in robbing; who, besides spending what they get in riot, drunkenness, and debauchery, lose their habits of industry, are rarely fit for any sober business after peace, and serve only to increase the number of highwaymen and housebreakers. Even the undertakers, who have been fortunate, are by sudden wealth, led into expensive living; the habit of which continues, when the means of supporting it cease; and finally ruins them a just punishment for their having wantonly and unfeelingly ruined many honest, innocent traders and families, whose subsistence was obtained in serving the common interests of mankind."

So also in 1785, writing to a private friend, he says: "The United States, though better situated than any other nation to profit by privateering, are, so far as in them lies, endeavouring to abolish the practice by offering, in all their treaties with other powers, an article engaging solemnly, that in case of a future war, no privateer shall be commissioned on either side, and that unarmed merchant ships on both sides shall pursue their voyages unmolested."”k

§ 18. Galiani and Lampredi on the principles of the

The principles asserted by the powers confederated in the Armed Neutrality, and acknowledged by all the belligerent nations engaged in the war which was terminated by Armed Neuthe peace of Versailles, 1783, except Great Britain, became trality. soon afterwards the subject of discussion between two eminent Italian public jurists. In the act of accession to the treaties of armed neutrality, in 1783, by the King of the Two Sicilies, it is stated that the principles of that alliance were the same which he had always followed, and which had been followed by his father ever since the reëstablishment of the independent monarchy in the two kingdoms,

* Letters to B. Vaughan, Esq., Franklin's Works, vol. ii. p. 448.

310

and the same which had been recognized in the only treaties made by them since they had ceased to belong to the Spanish sovereignty. The Abbé Galiani published at Naples, in 1782, a treatise on the duties of belligerent and neutral sovereigns towards each other, which may be considered as a defence of the principles maintained by the Neapolitan government, as he says it was written "in consequence of an irresistible order :" he also adds, "in a short time, and without the help of any book." Yet he cites a profusion of authorities, and among others criticises with some severity a much abler writer than himself, Lampredi, professor of public law in the university of Pisa, who had published, during the war of the American revolution, a work on the law of nature and nations, in which he incidentally considers the questions relating to belligerent and neutral rights.m

Subsequently to the appearance of Galliani's work, Lampredi published at Florence, in 1788, a separate treatise on the same subject, under the title of Del Commercio dei Popoli Neutrali in Tempo di Guerra."

In this treatise, Lampredi lays down the fundamental principle, that the accustomed trade of nations at peace with those powers, who happen to become belligerent, is not legally affected by the war, and may be continued to be carried on, with the qualifications arising from the duty of granting and withholding impartially, the benefits of neutral commerce, in respect to all the belligerents. On the other hand, this right of the neutral to carry on his accustomed trade, is encountered by the equal right of the belligerent to subdue his enemy, and for that purpose to inter

1 Dei Doveri dei Principi neutrali verso i Principi guerreggianti e di questi verso i Principi neutrali. Napoli, 4to, 1782.

m

Lampredi, Juris publici universalis, sive Juris Naturæ et Gentium theoremata. Liburni, vol. iii. 1776-1778.

A French translation of this work was published at Paris in 1802, by M. Penchet with notes and additional documents.

cept all commercial intercourse with him, which has a direct tendency to augment his means of defence or attack, or to defeat a particular operation which might compel him to submit. Hence arises a collision between these two opposite rights of the neutral and the belligerent.

The right of the belligerent to weaken and subdue his enemy, might be pushed to the extent of interdicting all trade with the enemy, which may contribute to augment his resources, and strengthen his means of resistance. There are not wanting in history examples of such a pretension on the part of belligerent nations; but their claim has more generally been limited to the right of intercepting certain articles, directly useful in war, or without which the enemy could not continue his resistance; and of interdicting all trade with places beseiged or blockaded, by which their surrender might be indefinitely protracted. Lampredi considers the right of the belligerent to capture such articles as are deemed contraband of war, and to interdict all trade with blockaded places, and the correspondent duty of the neutral to submit to such prohibitions, as arising, not from the primitive or natural law of nations, binding on all men, at all times, and in all places; but as depending on the conventional law, as evidenced in treaties and the usage of nations, which have continually fluctuated, according to the variations in the nature of maritime commerce, and the manner of carrying on naval hostilities.

From these postulates, this public jurist deduces the corollary, that the trade in those articles, termed contraband of war, is not prohibited, by the natural law of nations, or because the duties of neutrality require that those nations which remain at peace should abstain from this traffic; but because they have either expressly promised not to protect their subjects engaged in this trade, and to abandon their property to confiscation by the enemy; or have tacitly adhered to the usage prevailing in this respect, among the greater part of nations. If the right to capture and confiscate articles contraband of war were considered as an ab