Treaty of ers which concluded the treaty of 1856, at Paris, united in a declaration, by the first article of which "privateering is, and remains abolished." (Comp. § 190.) Paris in Other states were invited to adopt the principles of this declaration, but it was agreed that they must be accepted as a whole or not at all. 1856. Attitude of The United States, among other powers, were invited to become a party to this declaration. The Secretary of State, Mr. Marcy, in a letter of July 28, 1856, the United addressed to M. de Sartiges, minister of France at States. Washington, declined the proposal, although it secured what this country had so long been wishing for, — the greater freedom of neutral vessels. The reluctance to adopt the principles of the declaration, was owing to a cause already suggested -that the relinquishment of privateering would be a gain to nations which keep on foot a large naval force, but not to the United States, where a powerful navy is not maintained, on account of its great cost, and its danger to civil liberty. On the breaking out of a war, therefore, with a nation powerful at sea, the United States must rely, to a considerable extent, on merchant vessels converted into vessels of war. The secretary, however, declares that our government will readily agree to an arrangement, by which the private property of the subjects or citizens of a belligerent power shall be exempted from seizure by public armed vessels of the enemy, except it be contraband of war, and that "with this we will consent to the placing of privateering under the ban of the law of nations." It will be the policy of our government, hereafter, it may be presumed, in all treaties, to couple the abolition of privateering with the entire immunity of merchant ships engaged in a lawful trade.1 (Comp. § 190.) 1 The annotator on De Martens, ed. of 1858, M. Vergé, in speaking of this proposition of our government, expresses himself as follows: "In the usages of war on land, the soldiers of belligerent powers have no right, and can, in the way of fact, exercise no control over the private property of the subjects of the hostile power. Why should not the same principles be applicable to maritime war? The additional proposition of the cabinet of Washington, is evidently logical. Vainly has it been contended (in the Journal des Débats of October 22, 1856), that the 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, infru. 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. 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. These 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 want- what vague, ing; 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. Notwithstanding this vagueness, the rules of war have grown in humanity and mildness in recent times. yet are imThe principal causes of this amelioration are, proving. ration. 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? 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. |