of granting letters of marque against our own citizens, and that, too, without law or authority from the only constituted power that can grant it."

Mr. Welles, Sec. of the Navy, to Mr. Seward, Sec. of State, Oct. 1, 1861,
MS. Misc. Let.

"A bill to authorize the President, during the continuance of the civil war, to grant letters of marque and reprisal, was introduced at the session of 1861-62, but failed in consequence of the position taken in opposition, that letters of marque could only be granted against an independent state, and that their issue might be regarded as a recognition of the Confederate States. It was also objected that the bill if passed would be regarded as an admission of weakness on the part of the Federal Navy, and as conflicting with the position that privateering, as conducted by the Confederate States, was piracy."

Lawrences' Wheaton (1863), 643, citing Cong. Globe (1861-1862), 3325,

3335.

the

With reference to the act of Congress of March 3, 1863, entitled "An act concerning letters of marque, prizes, and prize goods," Mr. Seward wrote to Mr. Adams: "Congress has conferred upon President ample power for the execution of the latter measure [issue of letters of marque and reprisal] and the necessary arrangements for it are now engaging the attention of the proper depart

ments."

Mr. Seward, Sec. of State, to Mr. Adams, min, to England, March 9, 1863,
Dip. Cor. 1863, I. 141.

The

Under the act of March 3, 1863, the Department of State formulated and printed "Instructions for the Private Armed Vessels of the United States," and a set of "Regulations," the latter being dated "Department of State, Washington, March 20, 1863." These documents were embodied in a printed circular of seven pages. Secretary of the Navy, Mr. Welles, continued to oppose the policy, setting forth his objections in a letter to Mr. Seward of March 31, 1863. Mr. Welles says that no responsible person applied for letters of marque. It appears that in April, 1863, a citizen of New York applied for letters, and was invited by Mr. Seward to a conference, which resulted in the submission by the former of certain propositions. These were communicated by Mr. Seward to Mr. Welles, with the statement that, "in view of a slight improvement of the disposition of the British Government in regard to assisting the fitting out of piratical vessels," it seemed "inexpedient to proceed at this moment to the issue of letters of marque."

MS. Circulars, I. 218-221; Welles's Lincoln and Seward, 145-164; Mr.
Seward to Mr. Welles, April 20, 1863, 60 MS. Dom. Let. 270.

"You have rightly interpreted to Mr. Drouyn de l'Huys our views concerning the issue of letters of marque. The unrestrained issue of piratical vessels from Europe to destroy our commerce, break our blockade of insurrectionary ports, and invade our loyal coast, would practically be an European war against the United States, none the less real or dangerous for wanting the sanction of a formal declaration. Congress has committed to the President, as a weapon of national defense, the authority to issue letters of marque. We know that it is a weapon that cannot be handled without great danger of annoyance to the neutral and friendly commercial powers. But even that hazard must be incurred rather than quietly submit to the apprehended greater evil. There are now, as you must have observed, indications that that apprehended greater evil may be averted through the exercise of a restraining power over the enemies of the United States in Great Britain. Hopeful of such a result, we forbear from the issue of letters of marque, and are content to have the weapon ready for use if it shall become absolutely necessary.”

Mr. Seward, Sec. of. State, to Mr. Dayton, min. to France, April 24, 1863, Dip. Cor. 1863, I. 662.

"Thoughtful and hopeful minds generally favor the proposition to exempt private persons and property on the high seas from the inflictions of war. So far as I have learned, this opinion has, however, been by no means universally accepted. There is a large class of persons who habitually regard foreign war as always a probable contingency, besides many who are continually expecting a conflict with some particular state or states. These persons regard privateering not only as the strongest arm of naval defense, but as one which the United States could use with greater advantage than any foreign enemy. These persons are so jealous on the subject of privateering that they are always unwilling to consent to waive the right in any one treaty for fear that the treaty may become a precedent for the entire abandonment of that form of public war. Certainly this latter class very strongly prevailed throughout the entire period of our civil war. I have not recently made any careful inquiry to ascertain how far that popular sentiment has been modified by the return of peace."

Mr. Seward, Sec. of State, to Mr. Bancroft, Feb. 19, 1868, Dip. Corr. 1868, II. 46, 47.

In view of the fact that Spain had not adhered to the first article of the declaration of Paris of 1856, the United States, April 15, 1898, in view of the strained situation between the two countries instructed its diplomatic and consular officers to be on the watch to prevent tlfe possible fitting out or departure of privateers against the United States.

For. Rel. 1898, 1169.

With his despatch No. 356 of April 16, 1898, Mr. Hay, United States ambassador in London, inclosed a letter addressed to The Times by Sir George Baden-Powell, proposing that in the event of hostilities between the United States and Spain the powers should treat privateers, if any, as pirates. With his number 358 of April 18, 1898, Mr. Hay enclosed two letters from The Times of that day, one by Professor T. E. Holland and the other by Sir Sherston Baker. By the former the proposal was characterized as "an inadmissible atrocity," and by the latter as "an uncivilized act, subversive of one of the clearest and best defined rules of international law."

April 23, 1898, Mr. Sherman, Secretary of State, telegraphed to Mr. Hay: "In the event of hostilities between United States and Spain, the policy of this Government will be not to resort to privateering, but to adhere to the following recognized rules of international law: First, the neutral flag covers enemy's goods, with the exception of contraband of war; second, neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag; and, third, blockades in order to be binding must be effective."

July 6, 1898, the Department of State cabled to Mr. Hay a rumor communicated by the United States consul at Vancouver, British Columbia, that a Spanish privateer was lying in the Gulf of Georgia. The rumor was also communicated to the British ambassador at Washington. Investigation proved it to be erroneous.

For. Rei. 1898, 970, 971, 984-987.

"The Spanish Government, while maintaining their right to issue letters of marque, which they expressly reserved in their note of the 16th May, 1857, in reply to the request of France for the adhesion of Spain to the declaration of Paris relative to maritime law, will organize for the present a service of auxiliary cruisers of the navy,' composed of ships of the Spanish mercantile navy, which will cooperate with the latter for the purposes of cruising, and which will be subject to the statutes and jurisdiction of the navy."

War decree of Spain, April 23, 1898, London Gazette, May 3, 1898, For.
Rel. 1898, 774.

XIII. DECLARATIONS OF MARITIME LAW.

1. THE ARMED NEUTRALITY.

§ 1220.

See Fauchille, Le Ligue des Neutres de 1780.

"Previous to the war which grew out of the American Revolution, the respective rights of neutrals and belligerents had been settled and clearly defined by the conventional law of Europe, to which all the

maritime powers had given their sanction in the treaties concluded among themselves. The few practical infractions, in time of war, of the principles thus recognized by them, have been disavowed, upon the return of peace, by new stipulations again acknowledging the existence of the rights of neutrals as set down in the maritime code.

"In addition to the recognition of these rights by the European powers, one of the first acts of the United States, as a nation, was their unequivocal sanction of the principles upon which they are founded, as declared in their treaty of commerce of 1778 with the King of France. These principles were that free ships gave freedom to the merchandise, except contraband goods, which were clearly defined, and that neutrals might freely sail to and between enemies' ports, except such as were blockaded in the manner therein set forth. These principles having thus been established by universal consent, became the rule by which it was expected that the belligerents would be governed in the war which broke out about that time between France and Spain on the one hand, and Great Britain on the other. The latter power, however, having soon betrayed a disposition to deviate from them in some of the most material points, the governments which had preserved a neutral course in the contest became alarmed at the danger with which their maritime rights were threatened by the encroachments and naval supremacy of England, and the Empress of Russia, at their head, undertook to unite them in the defense of those rights. On the 28th February, 1780, she issued her celebrated declaration, containing the principles according to which the commanders of her naval armaments would be instructed to protect the neutral rights of her subjects. Those principles were as follows:

"1st. Neutral vessels may freely sail from port to port, and on the coasts of the nations parties to the war.

"2d. The goods belonging to the subjects of the said nations at war are, with the exception of contraband articles, free on board neutral vessels.

"3d. With respect to the definition of contraband articles, the Empress adheres to the provisions of the 10th and 11th articles of her treaty of commerce with Great Britain, and extends the obligations therein contained to all the nations at war.

"4th. To determine what constitutes a blockaded port, this denomination is confined to those the entrance into which is manifestly rendered dangerous in consequence of the dispositions made by the attacking power with ships stationed and sufficiently near.

"5th. These principles are to serve as a rule in proceedings and judgments with respect to the legality of prizes.

"This declaration was communicated to the belligerent Governments with a request that the principles it contained should be observed by

them in the prosecution of the war. From France and Spain it received the most cordial and unequivocal approbation, as being founded upon the maxims of public law which had been their rule of conduct. Great Britain, without directly approving or condemning those maxims, promised that the rights of Russia would be respected agreeably to existing treaties. The declaration was likewise communicated to the other European powers, and the accession by treaties or solemn declarations of Denmark, Sweden, Russia, Holland, Austria, Portugal, and the Two Sicilies to the principles asserted by the Empress of Russia, formed the league, which, under the name of armed neutrality,' undertook to preserve inviolate the maritime rights of neutrals.

6

"Whatever may have been the conduct of the belligerents in that war with respect to the rights of neutrals as declared by the armed neutrality, the principles asserted by the declaration of the Empress Catherine were again solemnly recognized by the treaty of peace concluded by Great Britain and France at Versailles on the 3d September, 1783. Among the several treaties thereby renewed and confirmed was that of Utrecht, in 1713, by which the same contracting parties had, nearly a century before, given the most solemn sanction to the principles of the armed neutrality, which were thus again proclaimed by the most deliberate acts both of belligerents and neutrals as forming the basis of the universal code of maritime legislation among the naval powers of the world.

"Such may be said to have been the established law of nations at the period of the peace of 1783, when the United States, recognized as independent by all the powers of the earth, took their station amongst them. These principles, to which they had given their sanction in their treaties with France of 1778, were again confirmed in those of 1873 with Sweden, and 1785 with Prussia, and continued, uncontroverted by other nations, until the wars of the French Revolution broke out and became almost general in Europe in 1793. The maxims then advanced by Great Britain in her instructions to her naval commanders and in her orders in council regulating their conduct and that of her privateers with regard to neutrals, being in direct contravention of the principles set forth in the declaration of the armed neutrality and in her own treaty stipulations, compelled the European powers which had remained neutral in the contest to unite again for the protection of their just rights. It was with this view that the Emperor Paul, of Russia, appealed to these powers, and that, at his instance, making common cause in behalf of the general interest of nations, Russia, Sweden, Denmark, and Prussia united in a new league of armed neutrality, bound themselves by new treaties, reasserted the principles laid down in the declaration of 1780, and