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vate persons and property, of enemies and others, at sea and on land during war. This noble principle still stands as a solemn admission on the part of France and her allies, of the soundness of our doctrine and a monument of the improvement of the age in ethical science and international law. This entire exemption of non-combatants and their property from capture at sea, is the rule of international law sanctioned by reason and humanity. This improvement of the law of nations being an advance upon the principle of the treaty of Utretcht, and coming up to that of our first treaty with Prussia, will by its establishment supercede the old rule promulgated at Utretcht and continued for a long period. The object of the United States and Prussia, in the liberal commercial provisions of the treaty of 1785, and in the exemption of private persons and property in war by sea and land from capture, by one of the articles, was noble and humane. The United States government had instructed our ministers to insert in all European treaties of commerce and navigation with our republic, provisions substantially like those in the Prussian treaty. The reasons assigned by Franklin, Adams and Jefferson in their report for the new improvements in public law in that treaty, are given by them in these words: “By the original law of nations, war and extirpation were the punishment of injury; humanizing by degrees, it admitted slavery instead of death; a farther step was, the exchange of prisoners instead of slavery ; another, to respect more the property of private persons under conquest, and be content with acquired dominion. Why should not this law of nations go on improving 7 Ages have intervened between its several steps, but as knowledge of late increases rapidly, why should not those steps be quickened ? why should it not be agreed to as the future law of nations, that in war hereafter, the following descriptions of men should be undisturbed, have the protection of both sides, and be permitted to follow their employments in security, viz: “1st. Cultivators of the earth, because they labor for the subsistence of mankind. “2d. Fishermen, for the same reason. “3d. Merchants and traders in unarmed ships, who accommodate different nations by communicating and exchanging the necessaries and conveniences of life. “4th. Artists and mechanics inhabiting and working in open towns. “It is hardly necessary to add that the hospitals of enemies should be unmolested; that they ought to be assisted.
“If rapine is abolished, one of the encouragements to 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.” They add a strong condemnation of privateering. (See Diplomatic Correspondence vol. 2d., p. 237–8.)
Baron De Thulemeier, the Prussian minister, in a letter to our negotiators of December 10th, 1784, referring to the same subject said: “The 23d Article is dictated by the purest zeal in favor of humanity. Nothing can be more just than your reflections on the noble disinterestedness of the United States of America. It is to be desired that these sublime sentiments may be adopted by all the maritime powers without any exceptions. The calamities of war will be much softened and hostilities, often provoked by cupidity and the inordinate love of gain, will be of more rare occurrence.” (Ib. vol. 2d., p. 257.)
Such were the reasons for those new and improved principles of the law of nations, which called forth the admiration of Washington and Napoleon, and in the end will secure the assent of all Christian nations.
The treaty of 1785 was truly declared by Washington in a letter to Lafayette, to form a new and happy era, marking the progress of nations towards a permanent state of peace. (See Spark's Writings of Washington, vol. 9th, p. 193—4.)
The French Republic, for a moment, became enamoured with our idea of limiting war to martial combatants, to public property and fortified places, and she urged upon England, by M. Chauvelin, the French minister, the adoption of this improvement in public law.
Our American authorities of the greatest value are to the same effect. Benjamin Franklin, one of the first philosophers, statesmen and philanthropists of which any age can boast, has, with his distinguished associates Thomas Jefferson and John Adams, both afterwards presidents of the United States, given in our treaty with Prussia a solemn sanction to this doctrine. Speaking on the subject of captures of private persons and property in war, Franklin thus expressed his opinion : “It is time, it is high time, for the sake of humanity that a stop were put to this enormity.” Again insisting on the introduction of a new rule of public law prohibiting such captures and privateering he said: “This will be a happy improvement in the law of nations.”
Hugh S. Legare, late Attorney General of the
United States, a statesman and philanthropist of distinction, as chairman of the committee of foreign affairs in the House of Representatives, in a report made on the subject of peace, and the improvement of international law said: “Had England not engrossed the empire of the seas for about a century past, it is scarcely possible to doubt but that the law of maritime captures would have been made to correspond more strictly with the analogies of war on land, and private property been held as sacred in the one case as in the other. It is worthy of notice, that at the Congress of Utretcht, before her ascendant was established, that power was the advocate of the rights of neutrals. She is now their worst enemy.” Our able civilian, Alexander H. Everett, former. minister to Spain, in his learned work on Europe, shows that there is in reason no distinction between private persons and property at sea and on land, that their capture at sea is a piratical practice of past ages, which “has been dignified with the title of a rule of law.” He fully concurs with Benjamin Franklin, Thomas Jefferson, John Adams, John Quincy Adams and Hugh S. Legare, that an improvement of public law is demanded, which shall set aside the old piratical rule and establish the freedom of non-combatants and their property at sea from capture or molestation. •