King of the Netherlands, claiming, through the intervention of the allied powers, the restoration of the statues, pictures, and other works of art, of which their respective States had been successively stripped by the late revolutionary government of France, contrary to every principle of justice, and to the usages of modern warfare; — and the same having been referred for the consideration of his court, he had received the Prince Regent's commands to submit, for the consideration of his allies, the following remarks upon that interesting subject.

It was now the second time that the powers of Europe had been compelled, in vindication of their own liberties and for the settlement of the world, to invade France, and twice their armies had possessed themselves of the capital of the State, in which these, the spoils of the greater part of Europe were accumulated. The legitimate sovereign of France had as often, under the protection of those armies, been enabled to resume his throne, and to mediate for his people a peace with the allies, to the marked indulgence of which neither their conduct to their own monarch, nor towards other States, had given them just pretensions to aspire. That the purest sentiments of regard for Louis XVIII., deference for his ancient and illustrious house, and respect for his misfortunes, had invariably guided the allied councils, had been proved beyond a question, by their having, in 1814, framed the treaty of Paris on the basis of preserving to France its complete integrity; and still more, after their late disappointment, by the endeavors they were again making, ultimately to combine the substantial interests of France with such an adequate system of temporary precaution, as might satisfy what they owed to the security of their own subjects. But it would be the height of weakness, as well as of injustice, and, in its effects, much more likely to mislead than to bring back the people of France to moral and peaceful habits, if the allied sovereigns, to whom the world was anxiously looking up for protection and repose, were to deny that principle of integrity in its just and liberal application to other nations, their allies, (more especially to the feeble and the helpless,) which they were about, for a second time, to concede to a nation against which they had had occasion so long to contend in war. Upon what principle could France, at the close of such a war, expect to sit down with the same extent of possessions which she held before the revolution, and desire, at the same

Was

time, to retain the ornamental spoils of all other countries? there any possible doubt of the issue of the contest, or of the power of the allies to effectuate what justice and policy required? If not, upon what principle would they deprive France of her late territorial acquisitions, and preserve to her the spoliations consisting of objects of art appertaining to those territories, which all modern conquerors had invariably respected, as inseparable from the country to which they belonged?

These remarks were amplified by a variety of considerations of political expediency, not necessary to be recapitulated, and the note concluded by declaring, that in applying a remedy to this offensive evil, it did not appear that any middle line could be adopted, which did not go to recognize a variety of spoliations, under the cover of treaties, if possible more flagrant in their character than the acts of undisguised rapine by which these remains were, in general, brought together. The principle of property, regulated by the claims of the territories from whence these works were taken, is the surest and only guide to justice; and perhaps there was nothing which would more tend to settle the public mind of Europe at this day, than such a homage on the part of the King of France, to a principle of virtue, conciliation, and peace.'

In the debate which took place in the House of Commons, on the 20th of February, 1816, on the peace with France, Sir Samuel Romilly, speaking incidentally of this proceeding, stated that he was by no means satisfied of its justice. It was not true that the works of art, deposited in the museum of the Louvre, had all been carried away as the spoils of war; many, and the most valuable of them, had become the property of France by express treaty stipulations; and it was no answer to say, that those treaties had been made necessary by unjust aggressions and unprincipled wars; because there would be an end of all faith between nations, if treaties were to be held not to be binding, because the wars out of which they arose were unjust, especially as there could be no competent judge to decide upon the justice of the war, but the nation itself. By whom, too, was it that this supposed act of justice and this "great

1 Martens, Nouveau Recueil, tom. ii. p. 632.

moral lesson," as it was called, had been read? By the very powers who had, at different times, abetted France in these, her unjust wars. Among other articles carried from Paris, under the pretence of restoring them to their rightful owners, were the celebrated Corinthian horses which had been brought from Venice; but how strange an act of justice was this to give them back their statues, but not to restore to them those far more valuable possessions, their territory and their republic, which were, at the same time, wrested from the Venetians? But the reason of this was obvious: the city and the territory of Venice had been transferred to Austria by the treaty of Campo Formio, but the horses had remained the trophy of France; and Austria, whilst she was thus hypocritically reading this moral lesson to nations, not only quietly retained the rich and unjust spoils she had got, but restored these splendid works of art, not to the Venice which had been despoiled of them, the ancient, independent, republican Venice; but to Austrian Venice, to that country, which, in defiance of all the principles she pretended to be acting on, she still retained as part of her own dominions.1

between

perty, taken

at sea, or on

land.

The progress of civilization has slowly, but con- § 7. Disstantly, tended to soften the extreme severity of the tinction operations of war by land; but it still remains unre- private prolaxed in respect to maritime warfare, in which the private property of the enemy taken at sea or afloat in port, is indiscriminately liable to capture and confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering private property, when captured in cities taken by storm, as booty; and the well-known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be or have been his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas, the object of maritime wars is the

I Life of Romilly, edited by his sons, vol. ii. p. 404.

destruction of the enemy's commerce and navigation, the sources and sinews of his naval power-which object can only be attained by the capture and confiscation of private property.

authorized

hostilities

The effect of a state of war, lawfully declared to exist, § 8. What persons are is to place all the subjects of each belligerent power in to engage in a state of mutual hostility. The usage of nations has against the modified this maxim, by legalizing such acts of hostility enemy. only as are committed by those who are authorized by the express or implied command of the State. Such are the regularly commisioned naval and military forces of the nation, and all others called out in its defence, or spontaneously defending themselves in case of urgent necessity, without any express authority for that purpose. Cicero tells us, in his Offices, that by the Roman fecial law, no person could lawfully engage in battle with the public enemy, without being regularly enrolled and taking the military oath. This was a regulation sanctioned both by policy and religion. The horrors of war would indeed be greatly aggravated, if every individual of the belligerent States was allowed to plunder and slay indiscriminately the enemy's subjects, without being in any manner accountable for his conduct. Hence it is that in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practised by civilized nations.'

commis

sioned cap

§ 9. Non- It must probably be considered as a remnant of the barbarous practices of those ages when maritime war tors. and piracy were synonymous, that captures made by private armed vessels, without a commission, not merely in selfdefence, but even by attacking the enemy, are considered lawful, not indeed for the purpose of vesting the enemy's property thus seized in the captors, but to prevent their conduct from being regarded as piratical, either by their own government or by the other belligerent State. Property thus seized is condemned to the government as prize of war, or, as these captures are techni

I Vattel, Droit des Gens, liv. iii. ch. 15, §§ 223-228. Klüber, Droit des Gens Moderne de l'Europe, § 267.

cally called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, when war breaks out with another; the captures made from that other are condemned, not to the captors, but to the government.1

§ 10. Pri

The practice of cruising with private armed vessels commissioned by the State, has been hitherto sanctioned vateers. by the laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. This practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlightened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin, between the United States and Prussia, in 1785, by which it was stipulated that, in case of war, neither power should commission privateers to depredate upon the commerce of the other, furnishes an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty, in 1799; and it is much to be feared that, so long as maritime captures of private property are tolerated, this particular mode of injuring the enemy's commerce will continue to be practised, especially where it affords the means of countervailing the superiority of the public marine of an enemy.2 (a)

1 Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. Robinson's Adm. Rep. vol. iv. p. 72. The Abigail. Dodson's Adm. Rep. p. 397. The Georgiana. Sparks's Diplomatic Correspondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7.

2 Vattel, liv. iii. ch. 15, § 229. burgh Review, vol. viii. pp. 13–15.

Franklin's Works, vol. ii. pp. 447, 530. EdinNorth American Review, vol. ii. (N. S.) pp. 166-196. Wheaton's Hist. Law of Nations, p. 308.

(a) [A proposition made by the Legislative Assembly, in 1792, to abolish the taking of private property and of privateering, by mutual arrangement among nations, met with no success, and at no time was privateering carried on more extensively than during the wars of the French Revolution. "Le décret proclamait l'abolition, 10. de la prise des propriétés privées; 2o. de la course maritime, et invitation au pouvoir exécutif de négocier avec les puissances étrangères des traités sur ces bases nouvelles. Le succès ne répondit pas à cette entreprise.