Page images

The greatest man the world has yet produced, and whose fame, from its peculiar combination of the highest talent for war and civil administration with the most perfect moral purity, has placed him alone on the pinnacle of glory, has given his authority to our doctrines. In a letter of Washington to Count de Rochambeau of July 31st, 1786, speaking of our first treaty with Prussia said: “The treaty of amity, which has lately taken place between the King of Prussia and the United States, marks a new era in negotiation. It is the most liberal treaty, which has ever been entered into between independent powers. It is perfectly original in many of its articles, and should its principles be considered hereafter as the basis of connection between nations, it will operate more fully to produce a general pacification than any measure heretofore attempted amongst mankind.” (See Spark's Writings of Washington, vol. 9th, p. 182.) Such was the solemn sanction of this great and good man of our proposed improvement of international law.

Private property by sea and on land is, by the moral law of nations, entitled to complete protection from the armies and navies of belligerents. Upon this principle all public edifices of the state, except arsenals, navy yards, and buildings for the army or navy, are protected from injury, and cities cannot justly be charged with contributions levied by an invading army, and the Vandal warrior who violates this immunity should be deemed a barbarian. For the same reason, poison, bribery and cruelty are disallowed. No such wanton acts of atrocity, any more than the seizure or detention of private property, can be justified on the ground of self-defence. For the like reason in assaulting a fortified town or citadel humanity and morality alike forbid sacking, rape and slaughter after capture, as well as undue severity to prisoners or demanding a ransom for their liberty. Belligerents may of right, and they ought to forbid commerce between the hostile people during the war, but this prohibition cannot rightfully extend to neutrals taking no part in the war. The 12th Article of our treaty with Prussia of 1785, says: “If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens of the party remaining neutral with the belligerent powers, shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports, and on the coasts of the belligerent parties, free vessels making free goods, in-so-much that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party,

although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party unless they be soldiers in actual service of such enemy.” The treaty of Utretcht of 1713, between Great Britain and France, is to the same effect. It fully asserts the right of neutrals to free trade. By that treaty free ships make free goods. The rights of neutrals honestly observing neutrality remain unaffected by belligerent rights, as they have been miscalled, and neutrals may of right trade freely with both belligerents, except in arms, ammunition and munitions of war, the only true contraband. John Quincy Adams, Secretary of State of the United States, in giving President Monroe's instructions to Mr. Anderson, our minister to Colombia, under date of May 27th, 1823, gives the views of our republic upon the usage of seizing the goods of an enemy in the ships of a neutral, and which Great Britain then claimed as a settled rule of the law of nations. This eminent civilian and diplomatist, says: “By the usage of nations, independent of treaty stipulations, the property of an enemy is liable to capture in the vessel of a friend. It is not possible to justify this rule upon any sound principle of the law of nature; for, by that law, the belligerent party has no right to pursue or attack his enemy without the jurisdiction of either of them. The high seas are a general jurisdiction common to all, qualified by a special jurisdiction of each nation over its own vessels. As the theatre of general and common jurisdiction, the vessels of one nation, and their commanders, have no right to exercise over those of another any act of authority whatsoever. This is universally admitted in time of peace. War gives the belligerent a right to pursue his enemy within the jurisdiction common to both, but not into the special jurisdiction of the neutral party. If the belligerent has a right to take the property of his enemy on the seas, the neutral has a right to carry and protect the property of his friend on the same element. War gives the belligerent no natural right to take the property of his enemy from the vessel of his friend. But as the belligerent is armed, and the neutral as such, is defenceless, it has grown into a usage that the belligerent should take the property of his enemy, paying the neutral his freight and submitting the question of facts to the tribunals of the belligerent party. It is evident, however, that this usage has no foundation in natural right, but has arisen merely from force, used by the belligerent, and which the neutral in the origin did not resist because he had not the power. But it is a usage harsh and cruel in its operation, and unjust in its nature; and it never fails in time of maritime war to produce irritation and animosity between the belligerent and the neutral. So universally has this been found to be its consequences, that all the maritime nations of modern Europe have shown their sense of it by stipulating the contrary principle, namely, that the property of an enemy shall be protected in the vessel of a friend.” 2. Again Mr. Adams, as President, caused ministers to be sent to the American Diplomatic Congress of Panama to sanction, among other improvements, as a principle of the code of public law, the rule that free ships make free goods. (See his Message to the Senate of December 26th, 1825.)


The right of neutrals to free trade with belligerents, and the principle of international law that free ships make free goods, except contraband, consisting of arms, ammunition and munitions of war, are clear, explicit doctrines of the treaty of navigation and commerce of Utretcht, of 1713, between France and Great Britain. The 17th, 18th, 19th and 20th Articles of this treaty declared not only that the vessels of either party might freely trade in all

« PreviousContinue »