then generally recognized by the law of nations and the President was pleased to perceive from the British and French declaration that the course to be pursued by their cruisers would not bring it into question in the existing war.

In an instruction of May 9, 1854, to the Minister in Russia, Secretary Marcy enclosed a copy of his note of April 28 to the British Minister, stating that a similar one had been sent to the French Minister. He called attention to the suggestion he had made "for a convention among the principal maritime nations to unite in a declaration that Free ships should make free goods except articles contraband of war." He observed that this doctrine had theretofore had the sanction of Russia and that Great Britain was the only considerable power which had theretofore "made a sturdy opposition to it.” As she had yielded the principle in the existing war, she thereby recognized its justice and fairness and would hardly be consistent if she should withhold her consent to an agreement to have it thereafter regarded as a rule of international law. He had "thrown out the suggestion" to Great Britain and France to adopt this as a rule to be observed in all future wars, and the President might instruct him to make the direct proposition to those and to other powers. The Minister was to ascertain the views of the Russian Emperor on the subject, if an opportunity should occur. If Russia, Great Britain, and France should concur with the United States in declaring this to be the doctrine of the law of nations, Marcy did not doubt that the other nations of the world would at once give their consent and conform their practice to it. As the decisions of the Admiralty courts in the United States and in other countries had frequently affirmed the doctrine that a belligerent might seize and confiscate enemy property found in a neutral vessel, the general consent of nations was therefore necessary to change it, and this seemed to Marcy to be a most favorable time for such a salutary change.

CONVENTION WITH RUSSIA

Marcy's suggestion resulted in a convention with Russia regarding neutral commerce, signed at Washington July 22, 1854.2 By it the two parties recognized "as permanent and immutable" the principles that free ships should make free goods, with the exception of articles contraband of war, and that the neutral property in enemy vessels was not subject to confiscation unless contraband of war. They agreed to apply these principles to the commerce and navigation of all such powers and states as should consent to adopt them on their part as permanent and immutable.

1 Document 104, p. 374.

2 Document 105, p. 375.

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These provisions of article 1 were followed by a statement in article 2 that the two parties reserve themselves to come to an ulterior understanding as circumstances may require, with 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." It was stipulated in article 3 that all nations which should consent to accede to the rules of article 1, by a formal declaration stipulating to observe them, should enjoy the rights resulting from such accession as they should be enjoyed and observed by the signatory powers.

PROPOSALS FOR A SYSTEM OF CONVENTIONS

1

In a note of August 7, 1854, Secretary Marcy called attention of the Minister in Great Britain to the fact that the United States had "strenuously contended for the doctrine that free ships make free goods, contraband articles excepted." He did not believe there was a maritime power which had not incorporated the doctrine in some of its treaties, but Great Britain had constantly refused to regard it as a rule of international law. Her Admiralty courts had rejected it and the American courts had followed after them. When Great Britain and France agreed to act upon that principle during the existing war with Russia, the United States believed a fair occasion was presented for obtaining the general consent of commercial nations to recognize it as a principle in international law. An intimation of a wish on the part of the United States to accomplish this object was conveyed to the Russian Government, and a convention between the two parties recognizing the principle was signed July 22. Marcy enclosed a project of a similar convention to be proposed to Great Britain, mentioning that France, as well as other powers, would be invited to enter into the same arrangement. Regarding the second principle of the convention, that neutral property, not contraband, found in enemy vessels should be exempt from confiscation, Marcy said it was not contested as was the first. There was, however, an obvious propriety in embracing them both as, if the second were omitted, it might again be questioned in consequence of the establishment of the principle that the neutral flag protected the property under it. An attempt might then be made to infer from that principle that the flag determined the character of the property.

Secretary Marcy informed the Minister that he did not expect any serious opposition to the proposed convention except from Great Britain. But for British resistance to the principle that free ships should make free goods, with the exception of contraband articles, it would long have been regarded as a well established rule of inter

1 Document 106, p. 376.

national law. He stated that Great Britain had impliedly admitted the justice of the principle by adopting it as a guide for conduct in the existing war; that if it was fair toward neutrals to act upon it at the time, it would be difficult for the British Government to devise good reasons for not observing it in all future wars. Finally, the Secretary was confident that the Minister would be able to overcome any reluctance on the part of the British Government to adopt it as a rule of international law.

In an instruction of the same date to the Minister in France, Marcy enclosed a project of a convention similar to the one which had been concluded between the United States and Russia, to be proposed to the French Government.1 His observations regarding the convention were almost the same as those made to the Minister in Great Britain.

The Government of the United States proposed to the other Governments of Europe and to those in America, a convention like that entered into between the United States and Russia. As a result of these proposals, conventions were signed with the Two Sicilies on January 13, 1855, and with Peru on July 22, 1856.2 A treaty of 1858 with Bolivia, embodying the principles of the convention with Russia, as well as other principles relating to neutral commerce, is considered in the following chapter.

MESSAGE OF PRESIDENT PIERCE

In a message to Congress of December 4, 1854, President Pierce mentioned that the foreign commerce of the United States had "reached a magnitude and extent nearly equal to that of the first maritime power of the earth, and exceeding that of any other." 3 This great interest, he considered, should be properly protected. Long experience had shown that in general, when the principal European powers were at war, the rights of neutral trade were in danger. During the progress of the War of American Independence, this consideration had led to the formation of the armed neutrality, a primary object of which was to assert the doctrine that free ships made free goods except in case of articles contraband of war. From the very commencement of our national being this doctrine had been a cherished idea of American statesmen. Every maritime power had recognized the principle at some time by treaty and it might have come to be universally respected as a rule of international law but for the refusal of one power. The principle was generally admitted to be a sound and salutary one, so much so that Great

Britain and France announced their purpose to observe it during the existing European war. This appeared to afford an occasion for the United States to renew efforts to make the doctrine "a principle of international law, by means of special conventions.” Accordingly a proposition embracing this rule that free ships should make free goods except articles contraband of war, and the rule that neutral property not contraband, found in enemy ships, should be exempt from confiscation, was submitted to Governments of Europe and America. Russia had agreed to a convention on July 22, and the King of Two Sicilies had expressed his readiness to enter into a convention on the subject. The King of Prussia approved the project of a treaty to the same effect, but proposed a separate article providing for the renunciation of privateering.

President Pierce stated that such an article obviously was much desired by nations having navies large in proportion to their foreign commerce. If it were adopted as an international rule, the commerce of a nation having a comparatively small navy 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 a war with a belligerent of naval supremacy, would show that the American Government "could never listen to such a proposition." The navy of the first maritime power in Europe was at least ten times as large as the American Navy, and the foreign commerce of the two countries was nearly equal and about equally exposed to hostile depredations. In war between the two powers, without resort 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 the United States be better situated in a 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 President considered that the proposition for the renunciation of privateering in case the United States should be forced into war with a great naval power was not entitled to more favorable consideration than would be a proposition to agree not to accept the services of volunteers for operations on land. The proposal was 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 went but little way in carrying out that principle, which equally required that such private property should not be seized or molested by national ships of war. If the leading European powers should concur in proposing as a rule of international law to exempt private property upon the ocean from seizure by public armed vessels as well as by privateers, the United States would "readily meet them upon that broad ground."