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I am directed to communicate the approval of the President to the second, third, and fourth propositions, independently of the first, should the amendment be unacceptable. The amendment is commended by so many powerful considerations and the principle which calls for it has so long had the emphatic sanction of all enlightened nations in military operations on land, that the President is reluctant to believe it will meet with any serious opposition. Without the proposed modification of the first principle, he cannot convince himself that it would be wise or safe to change the existing law in regard to the right of privateering.

If the amendment should not be adopted, it will be proper for the United States to have some understanding in regard to the treatment of their privateers when they shall have occasion to visit the ports of those powers which are or may become parties to the declaration of the Congress at Paris. The United States will upon the ground of right and comity, claim for them the same consideration to which they are entitled, and which was extended to them under the law of nations before the attempted modification of it by that Congress.

As connected with the subject herein discussed, it is not inappropriate to remark that a due regard to the fair claims of neutrals would seem to require some modification, if not an abandonment of the doctrine in relation to contraband trade. Nations which preserve the relations of peace, should not be injuriously affected in their commercial intercourse by those which choose to involve themselves in war, provided the citizens of such peaceful nations do not compromise their character as neutrals, by a direct interference with the military operations of the belligerents. The laws of siege and blockade, it is believed, afford all the remedies against neutrals that the parties to the war can justly claim. Those laws interdict all trade with besieged or blockaded places. A further interference with the ordinary pursuits of neutrals in no-wise to blame for an existing state of hostilities, is contrary to the obvious dictates of justice. If this view of the subject could be adopted and practically observed by all civilized nations, the right of search which has been the source of so much annoyance and of so many injuries to neutral commerce, would be restricted to such cases only as justified a suspicion of an attempt to trade with places actually in a state of siege or blockade.

Humanity and justice demand that the calamities incident to war, should be strictly limited to the belligerents themselves, and to those who voluntarily take part with them; but neutrals abstaining in good faith from such complicity ought to be left to pursue their ordinary trade with either belligerent, without restrictions in respect to the articles entering into it.

Though the United States do not propose to embarrass the other pending negotiations relative to the rights of neutrals by pressing this change in the law of contraband, they will be ready to give it their sanction, whenever there is a prospect of its favorable reception by other maritime powers.

The undersigned avails himself [etc.]

W. L. MARCY

110

The Secretary of State (Marcy) to the Minister in France (Mason)1
No. 87
WASHINGTON, July 29, 1856.

SIR: Some of the Powers which were represented in the late Congress of Plenipotentiaries at Paris have presented to this Government, for its concurrence therein, the principles and propositions respecting neutral rights, contained in Protocols 23 and 24. Pursuant to the direction of the President, I have replied to that application on the part of France, by a note addressed to the Count de Sartiges, the representative of his Imperial Majesty the Emperor of the French, to this Government. With a copy of that reply you are herewith furnished. The views of the President on the subject are presented in that note. He finds himself unable to agree to the first principle in the "Declaration" contained in Protocol N° 23 which proposes to abolish privateering, or to the propositions in the Protocol N° 24, which declares the indivisibility of the four principles of the declaration, and surrenders the liberty to negotiate in regard to neutral rights except on inadmissible conditions. It cannot have been the object of the Governments represented in the Congress at Paris to obstruct the adoption of principles which all approve and are willing to observe, unless they are encumbered by an unrelated principle to which some Governments cannot accede without a more extended application of it than that which is proposed by the Paris Congress.

You are instructed by the President to propose to the Government of His Imperial Majesty, to enter into an arrangement for the adherence of the United States to the four principles of the declaration of the Congress, provided the first of them is amended as specified in my note to the Count de Sartiges. Without such amendment, the President is constrained for many weighty reasons, some of which are stated in that note, to decline acceding to the first principle of the " declara

1

MS., Instructions, France, vol. xv, pp. 336-339.

This instruction was sent, mutatis mutandis, on this date and on Aug. 5 and 29 to diplomatic representatives in Latin American countries, and in European countries except Great Britain.

tion". The President, however, will readily give his assent to the remaining three principles. He entertains the hope that the powers represented in the Congress at Paris will take early measures to release each other from the restrictions imposed by Protocol No 24. He is much encouraged by the recollection that France as well as Russia and Prussia has heretofore favored liberal doctrines in regard to neutral rights and the freedom of the seas, in the hope that these powers will concur in the course suggested in the note addressed to Count de Sartiges.

The solicitude of the President to maintain the most friendly relations with the Government of France, makes it also important for him to know what will be the treatment of American privateers upon the high seas and in French ports, in case the United States should unhappily be at war with any other power which has acceded to the Declaration. It is not reasonable to expect that they will ever forego a resort to privateers in case they become involved in war with a commercial State. If such war should happen with a nation which has acceded to the Declaration proposed by the Congress at Paris will the neutral nations which may have also acceded to it, treat our privateers in any respect differently from the manner in which they have been heretofore treated by them? Will the privateers of the powers which do not become parties to the Declaration receive the same immunities in all neutral ports which have been heretofore accorded to such privateers? To prevent future misunderstanding, it is important that on these points this Government should be furnished with the views of the Governments which may have agreed to that "Declaration or may accede to it. You are therefore instructed by the President to make these inquiries of His Imperial Majesty's Government.

Though the President does not seriously apprehend that the rights of the United States in regard to the employment of Privateers will be affected directly or indirectly by the new state of things which may arise out of the proceedings of the Congress at Paris, yet it would be gratifying to him to be assured by the Government of France that no new complications in our relations with it are likely to spring from those proceedings. He trusts that, so long as France is, and he anxiously desires she should ever be, a friendly power, her ports will be, as they heretofore have been, a refuge from the dangers of the sea and from attack as well for our privateers as for our merchant vessels and national ships of war in the event of hostilities between any other European power and this Country.

I am [etc.]

1

W. L. MARCY

1The word European does not appear on the copy of the instruction sent to Latin American countries.

111

Message of President Pierce to Congress, December 2, 18561

[Extract]

Soon after the commencement of the late war in Europe this Government submitted to the consideration of all maritime nations two principles for the security of neutral commerce-one that the neutral flag should cover enemies' goods, except articles contraband of war, and the other that neutral property on board merchant vessels of belligerents should be exempt from condemnation, with the exception of contraband articles. These were not presented as new rules of international law, having been generally claimed by neutrals, though not always admitted by belligerents. One of the parties to the war (Russia), as well as several neutral powers, promptly acceded to these propositions, and the two other principal belligerents (Great Britain and France) having consented to observe them for the present occasion, a favorable opportunity seemed to be presented for obtaining a general recognition of them, both in Europe and America.

But Great Britain and France, in common with most of the States of Europe, while forbearing to reject, did not affirmatively act upon the overtures of the United States.

While the question was in this position the representatives of Russia, France, Great Britain, Austria, Prussia, Sardinia, and Turkey, assembled at Paris, took into consideration the subject of maritime rights, and put forth a declaration containing the two principles which this Government had submitted nearly two years before to the consideration of maritime powers, and adding thereto the following propositions: "Privateering is and remains abolished," and "Blockades in order to be binding must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy;" and to the declaration thus composed of four points, two of which had already been proposed by the United States, this Government has been invited to accede by all the powers represented at Paris except Great Britain and Turkey. To the last of the two additional propositions-that in relation to blockades— there can certainly be no objection. It is merely the definition of what shall constitute the effectual investment of a blockaded place, a definition for which this Government has always contended, claiming indemnity for losses where a practical violation of the rule thus defined has been injurious to our commerce. As to the remaining article of the declaration of the conference of Paris, that "privateer

Richardson, Messages and Papers of the Presidents, vol. v, pp. 397-417.

ing is and remains abolished," I certainly can not ascribe to the powers represented in the conference of Paris any but liberal and philanthropic views in the attempt to change the unquestionable rule of maritime law in regard to privateering. Their proposition was doubtless intended to imply approval of the principle that private property upon the ocean, although it might belong to the citizens of a belligerent state, should be exempted from capture; and had that proposition been so framed as to give full effect to the principle, it would have received my ready assent on behalf of the United States. But the measure proposed is inadequate to that purpose. It is true that if adopted private property upon the ocean would be withdrawn from one mode of plunder, but left exposed meanwhile to another mode, which could be used with increased effectiveness. The aggressive capacity of great naval powers would be thereby augmented, while the defensive ability of others would be reduced. Though the surrender of the means of prosecuting hostilities by employing privateers, as proposed by the conference of Paris, is mutual in terms, yet in practical effect it would be the relinquishment of a right of little value to one class of states, but of essential importance to another and a far larger class. It ought not to have been anticipated that a measure so inadequate to the accomplishment of the Proposed object and so unequal in its operation would receive the assent of all maritime powers. Private property would be still left to the depredations of the public armed cruisers.

I have expressed a readiness on the part of this Government to accede to all the principles contained in the declaration of the conference of Paris provided that the one relating to the abandonment of privateering can be so amended as to effect the object for which, as is presumed, it was intended—the immunity of private property on the ocean from hostile capture. To effect this object, it is proposed to add to the declaration that "privateering is and remains abolished" the following amendment:

And that the private property of subjects and citizens of a belligerent on the high seas shall be exempt from seizure by the public armed vessels of the other belligerent, except it be contraband.

This amendment has been presented not only to the powers which have asked our assent to the declaration to abolish privateering, but to all other maritime states. Thus far it has not been rejected by any, and is favorably entertained by all which have made any communication in reply.

Several of the governments regarding with favor the proposition of the United States have delayed definitive action upon it only for the purpose of consulting with others, parties to the conference of Paris. I have the satisfaction of stating, however, that the Emperor

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