One of Mr. Buchanan's earliest acts after coming into office, it is said, was to direct our ministers abroad not to press Mr. Marcy's propositions. Mr. Seward, when Secretary of State at the beginning of the late war, directed our ambassadors in Great Britain and France to negotiate conventions, with the object of acceding to the declarations of the Treaty of Paris. His plan was to include the Confederate States in the Convention, and thus to prevent their issuing letters of marque against our commerce. But the two European governments which had already recognized those states to be a belligerent power, could not make a treaty which would include them. As Mr. Dayton put it, "Such accessions by us ... would not at all enlarge our rights, as against a belligerent power not a party to the treaty; nor would it bind these European governments to enforce the laws of piracy as against such belligerent power not a party to the treaty. If they admit the Confederate States as a belligerent power, and recognize them for even commercial purposes, our accession to the Treaty of Paris will not change their action in this respect. The status of the rebellious States as it respects privateering, will remain where it was. At least that is the view which I think will be taken of this matter in England and France." He understood the views of those governments perfectly. The

claim of the United States, that land and sea warfare should be put on the same footing, is not admissible, nor just, nor good even, since the calamities of war afford this advantage, that in acting on the population of countries, they render war shorter and more unfrequent. It seems in all cases difficult to maintain the proposition that the pillage of private property by privateers is just, rational, and legitimate. One cannot admit that private property, which is free even in the enemy's land itself, on the soil invaded by an army, victorious and invested with the right of conquest, can be justly taken and plundered on the sea, on that element free by its nature, which is neither friendly nor hostile territory. Let us hope that the initiative so gloriously adopted by the Congress of Paris, will be fruitful for the future, and that diplomacy will one day reach the point of rendering commerce free for belligerents as for neutrals, that private goods and citizens, who are strangers to the profession of arms, will be freed from the disasters of war, and that private property will remain outside of contests exclusively concentrated in armies acting in the name and under the direction of the public power." II., § 289. Compare the recent resolutions of the chamber of commerce, of Hamburg and Bremen, under § 147, infra.

ministers of the two powers offered to sign a convention, with a declaration to the effect that in so doing their governments would not thereby undertake any engagement which should have any bearing, direct or indirect, on the internal differences then prevailing in the United States. This was not what our government wanted, and the matter was dropped. Nor did it prove to be of importance to pursue it, for nearly all the injuries to our commerce proceeded from public vessels of the rebellious States. (Comp. note on § 144.)

Since the proposition made by Mr. Seward, the government of the United States has shown no desire, so far as we are informed, to accede to the treaty of Paris. In regard to the other proposition that all private property in innocent trade, of whatever nationality, shall be exempt from capture on the ocean, - an important provision appears in the treaty of 1871, with the Kingdom of Italy, in which the parties contract that "in the event of a war between them, the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure, on the high seas or elsewhere, by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes, which may attempt to enter a port blockaded by the naval forces of either party."

For what seems to be the true policy as to marine warfare, compare § 190 below.

§ 129.

The restrictions on privateering are of three kinds.

Restrictions

on privateervent its

ing to pre

1. The laws of some states narrow the range of their operations, and regulate the composition of their crews. They are forbidden to cruise in the rivers or within the sea-line of a hostile state, and the majority of a crew is required to consist of natives. But these rules have not passed into international law, or general usage. 2. To give it the character of an honest and lawful pursuit, 1 Comp. Ortolan, ii., 57-59; Heffter, § 137.

evils.

commissions, as already said, are granted, and bonds are taken from those who receive the letters of marque. These regulations, which vary with the municipal law of each country, subject the owners and officers of privateers to heavy penalties in case of transgression.1

It is only the commission which gives an interest in a prize, since all captures vest originally in the state. This maxim draws its truth from the right notion of war, as we have endeavored to set it forth, that war is undertaken by the state, for the sake of the state, and against another state.

3. Many treaties provide that the subjects of either of the treaty-making powers, while in a state of peace, shall not take out letters of marque from a third power at war with the other party, and that those who violate this provision may be held by the other party to have committed the crime of piracy. Such treaties of longer or shorter duration have been made, for instance, by the United States, with France, Sweden, Prussia, Great Britain, Spain, Central America, and Colombia. In the absence of such treaties, a neutral may with impunity accept a military commission from a belligerent, for sea or land service. But municipal law often forbids the citizen or subject to take this step. (Comp. §§ 173, 176.)2

1 For the rules of responsibility of owners, commanders, and sureties, comp. Kent, i, 98, 99, Lect. v. A maritime ordinance of Pedro IV., king of Aragon, in 1356, speaks of such security. A sum of money was to be deposited in the hands of certain public officers by the owner of a vessel. Pardessus, Collection, v., 471. And another rule of 1364, passed by the German Hanse towns, to the same effect, is cited by De Martens, § 289, note c.

2 By Act of Congress, April 20, 1818, citizens are forbidden to accept commissions to cruise against powers at amity with us. T. S.

SECTION II.-Laws and Usages of War, especially on Land.

§ 130.

These

The laws

of war

are some

The subject of prize, or the rules of captured property,1 especially on the sea, we shall consider by itself in another section. At present we pass on to the im- and usages portant topic of the laws and usages of war. rules are necessarily somewhat vague and fluctuating, partly because they have less to do with justice than with humanity, where clear lines of definition are wanting; partly because much must be left to the discretion of commanders with varying dispositions and principles; partly because nations sometimes enter with excited passions, sometimes with cool calculation, into war, and their spirit will modify all its movements.

what vague,

yet are improving.

Notwithstanding this vagueness, the rules of war have grown in humanity and mildness in recent times. The principal causes of this amelioration are, — 1. The growth of a feeling of the brotherhood of mankind fostered by the spirit of Christianity. Thus, for Causes of instance, slavery having ceased in nearly all Chris- their ameliotian countries under the benign sway of the Gospel, how could the old practice of enslaving captives taken in war fail to go out of use?

ration.

2. The influence of writers such as Grotius, and the example of great captains, who under the control of humane feelings have followed a better practice.

3. The greatly increased intercourse among Christian countries the inhabitants of which are no longer strangers to one another, and beyond each other's view, but are connected by various ties, which soften the asperity of a sense of injury.

4. The marked separation of the soldiery as a distinct class

1 Compare for this section, the instructions for the government of armies of the United States in the field, prepared by Dr. Lieber, revised by a board of officers, and approved by the President in 1863.

from the citizens, and an improved feeling among soldiers themselves; which is due to the substitution of regular for irregular troops, to the spread of professional honor among officers, and to the cooler and more scientific way in which wars are carried on.

5. Add to this that an organized commissariat renders it unnecessary for the soldier to procure his daily food by plunder, while modern systems of finance and credit meet the expenses of armies abroad. "Paid soldiers only," says Colonel Napier, "can be kept under discipline; soldiers without money become robbers." 1

6. The different mode of warfare which the use of gunpowder has introduced. "There is as much difference," says the same authority, "between the modern and the ancient soldier, as between the sportsman and the butcher. The ancient warrior, fighting with the sword and reaping his harvest of death when the enemy was in flight, became habituated to the act of slaying. The modern soldier seldom uses his bayonet, sees not his peculiar victim fall, and exults not over mangled limbs as proofs of personal prowess."

§ 131.

The rules which lie at the basis of a humane system of war

Fundamen

tal rules of 1. That peace is the normal state of Christian nations, to which they are bound to seek to return from

war.

the temporary and exceptional interruptions of war.

2. That redress of injuries and not conquest or plunder is the lawful motive in war; and that no rule of morality or justice can be sacrificed in the mode of warfare.

3. That war is waged between governments by persons whom they authorize, and is not waged against the passive inhabitants of a country.

4. That the smallest amount of injury, consistent with selfdefense and the sad necessity of war, is to be inflicted. And, finally,

1 Peninsular War, iii., 377 (Amer. ed. of 1842.)