regard to the application and extension to be given, if there be any cause for it, to the principles laid down in the 1st Article. But they declare from this time that they will take the stipulations contained in said Article 1., as a rule, whenever it shall become a question, to judge of the rights of neutrality.

ARTICLE III

It is agreed by the High Contracting Parties that all Nations which shall or may consent to accede to the rules of the first Article of this convention, by a formal declaration stipulating to observe them, shall enjoy the rights resulting from such accession as they shall be enjoyed and observed by the two Powers signing this convention. They shall mutually communicate to each other the results of the steps which may be taken on the subject.

106

The Secretary of State (Marcy) to the Minister in Great Britain (Buchanan) 1

No. 52

WASHINGTON, August 7, 1854. SIR: The Government of the United States as you are aware has strenuously contended for the doctrine that free ships make free goods, contraband articles excepted There is not I believe a Maritime power which has not incorporated it in some of its Treaties but Great Britain which is the most considerable of them has constantly refused to regard it as a rule of international law. Her Admiralty courts have rejected it and ours have followed after them. When Great Britain and France at the commencement of the present war with Russia, agreed to act upon that principle for the time being, this Government believed that a fair occasion was presented for obtaining the general consent of commercial nations to recognise it as a principle of the law of nations. An intimation of a wish on the part of the United States to accomplish this object was conveyed to Mr. Seymour, our Minister in Russia and by him made known to the Government of that Country. The Emperor very promptly furnished his representative here with full powers to make a convention on the subject. One was entered into on the 22nd day of July and concurred in by the Senate on the 25th of that month.

By direction of the President I herewith send to you a projet of a similar Convention to be proposed to Her Britannic Majesty's Government.

France as well as other powers will also be invited to enter into the same arrangement. With a view to prevent delays and embarrassments the proposed agreement embraces but two rules. First 'MS., Instructions, Great Britain, vol. xvi, pp. 308-310.

that Free ships make free goods except articles contraband of war and second that the property of neutrals not being contraband found on board of enemies' vessels shall be exempted from confiscation. This latter rule is not like the first contested, yet there is an obvious propriety in embracing both in the same arrangement. Were it omitted it might be again questioned in consequence of the establishment of the principle that the neutral flag protects the property under it. An attempt might be made to infer from that principle that the flag determined the character of the property under it.

I do not apprehend any serious opposition to the proposed Convention except from Great Britain. But for her resistance to the principle that the neutral flag protects the property under it if it be not contraband, it would long ago have been regarded as a well established rule of international law. She has impliedly admitted its justice by adopting it as the guide of her conduct in the present war-If it is fair towards neutrals to act upon it now it will be difficult for her to devise good reasons for not observing it in all future

wars.

I am confident you will be able to overcome any reluctance on the part of the Government of Great Britain to adopt it as a rule of international law.

With this instruction you will receive the Presidents full power to conclude the proposed convention

I am [etc.]

W. L. MARCY

107

The Secretary of State (Marcy) to the Minister in France (Mason)1 No. 25

WASHINGTON, August 7, 1854.

SIR: You are aware that this government has strenuously contended that free ships should make free goods, articles contraband of war excepted. Great Britain is believed to be almost the only maritime power which has constantly refused to regard this as a rule of international law, and her policy in this respect, may, it is presumed, be ascribed rather to a consciousness of power than a sense of right. The admiralty Courts of the United States have followed English precedents in their decisions against this rule. It has however been expressly recognized in several treaties between the United States and France.

When Great Britain and France at the commencement of the present war with Russia, agreed to act upon that principle for the time being, this Government believed that a fair occasion was presented for obtaining the general consent of commercial nations to recognize it as a principle of the law of nations. An intimation 1MS., Instructions, France, vol. xv, pp. 206–207.

of a wish on the part of the United States to accomplish this object was conveyed to Mr. Seymour our Minister in Russia, and by him made known to the Government of that country. The Emperor very promptly furnished his representative here with full powers to make a convention on the subject. One was entered into on the 22nd day of July, and concurred in by the Senate on the 25th of that month.

By direction of the President I herewith send you a projet of a similar convention to be proposed to the Government of His Majesty the Emperor of the French. Great Britain as well as other Powers, will also be invited to enter into the same arrangement.1 With a view to prevent delays and embarrassments, the proposed agreement embraces but two rules. First that "Free ships make free goods, except articles contraband of war," and, second, that the property of neutrals not being contraband, found on board of enemies' vessels, shall be exempted from confiscation. This latter rule is not like the first contested; yet there is an obvious propriety in embracing both in the same arrangement. Were it omitted it might be again questioned in consequence of the establishment of the principle that the neutral flag protects the property under it. An attempt might be made to infer from that principle that the flag determined the character of the property under it.

I do not apprehend any serious opposition to the proposed convention except from Great Britain. But for her resistance to the principle that the neutral flag protects the property under it, if it be not contraband, it would long ago have been regarded as a well established rule of international law. She has impliedly admitted its justice by adopting it as the guide of her conduct in the present war. If it is fair towards Neutrals to act upon it now, it will be difficult for her to devise good reasons for not observing it in all future wars.

With this instruction you will receive the President's full power to conclude the proposed convention.

I am [etc.]

108

W. L. MARCY

Message of President Pierce to Congress, December 4, 1854 2

[Extract]

2

Our foreign commerce has reached a magnitude and extent nearly equal to that of the first maritime power of the earth, and exceeding that of any other. Over this great interest, in which not only our

1

This proposal was submitted by the Government of the United States to "those of Europe and America ", see p. 379.

2 Richardson, Messages and Papers of the Presidents, vol. v. pp. 273-293,

merchants, but all classes of citizens, at least indirectly, are concerned, it is the duty of the executive and legislative branches of the Government to exercise a careful supervision and adopt proper measures for its protection. The policy which I had in view in regard to this interest embraces its future as well as its present security. Long experience has shown that, in general, when the principal powers of Europe are engaged in war the rights of neutral nations are endangered. This consideration led, in the progress of the War of our Independence, to the formation of the celebrated confederacy of armed neutrality, a primary object of which was to assert the doctrine that free ships make free goods, except in the case of articles contraband of war-a doctrine which from the very commencement of our national being has been a cherished idea of the statesmen of this country. At one period or another every maritime power has by some solemn treaty stipulation recognized that principle, and it might have been hoped that it would come to be universally received and respected as a rule of international law. But the refusal of one power prevented this, and in the next great war which ensued-that of the French Revolution-it failed to be respected among the belligerent States of Europe. Notwithstanding this, the principle is generally admitted to be a sound and salutary one, so much so that at the commencement of the existing war in Europe Great Britain and France announced their purpose to observe it for the present; not, however, as a recognized international right, but as a mere concession for the time being. The cooperation, however, of thees two powerful maritime nations in the interest of neutral rights appeared to me to afford an occasion inviting and justifying on the part of the United States a renewed effort to make the doctrine in question a principle of international law, by means of special conventions between the several powers of Europe and America. Accordingly, a proposition embracing not only the rule that free ships make free goods, except contraband articles, but also the less contested one that neutral property other than contraband, though on board enemy's ships, shall be exempt from confiscation, has been submitted by this Government to those of Europe and America.

Russia acted promptly in this matter, and a convention was concluded between that country and the United States providing for the observance of the principles announced, not only as between themselves, but also as between them and all other nations which shall enter into like stipulations. None of the other powers have as yet taken final action on the subject. I am not aware, however, that any objection to the proposed stipulations has been made, but, on the contrary, they are acknowledged to be essential to the security of neutral commerce, and the only apparent obstacle to their gen

eral adoption is in the possibility that it may be encumbered by inadmissible conditions.

The King of the Two Sicilies has expressed to our minister at Naples his readiness to concur in our proposition relative to neutral rights and to enter into a convention on that subject.

The King of Prussia entirely approves of the project of a treaty to the same effect submitted to him, but proposes an additional article providing for the renunciation of privateering. Such an article, for most obvious reasons, is much desired by nations having naval establishments large in proportion to their foreign commerce. If it were adopted as an international rule, the commerce of a nation having comparatively a small naval force would be very much at the mercy of its enemy in case of war with a power of decided naval superiority. The bare statement of the condition in which the United States would be placed, after having surrendered the right to resort to privateers, in the event of war with a belligerent of naval supremacy will show that this Government could never listen to such a proposition. The navy of the first maritime power in Europe is at least ten times as large as that of the United States. The foreign commerce of the two countries is nearly equal, and about equally exposed to hostile depredations. In war between that power and the United States, without resort on our part to our mercantile marine the means of our enemy to inflict injury upon our commerce would be tenfold greater than ours to retaliate. We could not extricate our country from this unequal condition, with such an enemy, unless we at once departed from our present peaceful policy and became a great naval power. Nor would this country be better situated in war with one of the secondary naval powers. Though the naval disparity would be less, the greater extent and more exposed condition of our widespread commerce would give any of them a like advantage over us.

The proposition to enter into engagements to forego a resort to privateers in case this country should be forced into war with a great naval power is not entitled to more favorable consideration than would be a proposition to agree not to accept the services of volunteers for operations on land. When the honor or the rights of our country require it to assume a hostile attitude, it confidently relies upon the patriotism of its citizens, not ordinarily devoted to the military profession, to augment the Army and the Navy so as to make them fully adequate to the emergency which calls them into action. The proposal to surrender the right to employ privateers is professedly founded upon the principle that private property of unoffending noncombatants, though enemies, should be exempt from the ravages of war; but the proposed surrender goes but little way in carrying out that principle, which equally requires that such