mm j:i,v .5 93Q> Cornell University Library JXig06.A3no.26 Opinions of attorneys general, decisions 3 1924 016 932 968 M Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016932968 '^Xi>^''' Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 26 OPINIONS OF ATTORNEYS GENERAL, DECI- SIONS OF FEDERAL COURTS, AND DIPLO- MATIC CORRESPONDENCE RESPECTING THE TREATIES OF 1785, 1799 AND 1828 BETWEEN THE UNITED STATES AND PRUSSIA. PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 26 OPINIONS OF ATTORNEYS GENERAL, DECI- SIONS OF FEDERAL COURTS, AND DIPLO- MATIC CORRESPONDENCE RESPECTING THE TREATIES OF 1785, 1799 AND 1828 BETWEEN THE UNITED STATES AND PRUSSIA. PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 /2> 5 ; 7 2^ Prefatory Note On January 31, 1917, the German government informed the United States that "from February 1, 1917, all sea traffic will be stopped with every available weapon and without further notice in the following blockade zones [describing them in ,detail] around Great Britain France, Italy and in the Eastern Mediterranean." On the third day of February, the President of the United States addressed both Houses of Congress in joint session, and, after stating in detail the relations between Germany and the United States and the apparent intention on the part of the German government to deprive the United States of the rights which neutrals possessed upon the high seas, he informed the Congress that he had "directed the Secretary of State to announce to His Excellency the German Ambassador that all diplomatic relations between the United States and the German Empire are severed, and that the American Ambassador at Berlin will immediately be withdrawn; and, in accordance with this decision, to hand to His Excellency his passports." The passports were accordingly handed to His Excellency the Ger- man Ambassador the same day, and diplomatic relations between the two countries were thus severed. There are three treaties which in whole or in part in the opinion of the German Empire and of the United States affect their international relations. The treaties in question are : First, the treaty of amity and commerce concluded between Prussia and the United States of America on September 10, 1785 ; second, the treaty of amity and commerce concluded between Prussia' and the United States of America on July 11, 1799; and, third, the treaty of commerce and navigation concluded between Prussia and the United States of America on May 1, 1828. These treaties have been held by the governments of the contracting parties to apply not only to Prussia, but to the North German Con- federation, of which Prussia was the leading member, and also to the IV German Empire, of which the King of Prussia is the German Emperor. The opinions of the Attorneys General of the United States, the decisions of Federal Courts and the correspondence between the German Empire on the one hand and the United States on the other, relating to the nature and binding effect of the treaties are here collected from official sources and issued in the present pamphlet. Although some parts of the subject-matter in these opinions, decisions and cor- respondence may not seem to be strictly necessary to the purposes of this pamphlet, it has been deemed advisable to print them in full and not to take any liberties with the original texts. James Brown Scott, Director of the Division of International Law Washington, D. C., February 28, 1917. Contents PAGE Prefatory Note iii Text of Treaties between the United States and Prussia: Treaty of 1785 1 Treaty of 1799 12 Treaty of 1828 24 Opinions of the Attomej-s General of the United States : Opinion in the case ,oi the Deserters from the Ptussian Frigate Niobe 31 Opinion on Tonnage Duty 35 Annex — Correspondeoce of the Department of State with the Legation of Germany in Washington 36 Opinion on the Duty'on Imported Salt — Treaty with Prussia 43 Decisions of Federal Courts : The Bark Elwine Kreplin, 8 Fed. CaseS; 592 49 Ex Parte Newman, 81 U. S. 152 63 The Elwine Kreplin, 8 Fed. Cases, 588 79 United States v. Diekelman, 92 U. S. 520 87 North German Lloyd S. S. Co. v. Hedden, Collector, 43 Fed. Rep. 17 97 Disconto Gesellschaft v. Umbreit, 208 U. S. 570 109 Case of The Appam 120 Extracts from a proclamation by the President of the United States, August 22, 1870 133 Case of the William P. Frye: The Secretary of State to Ambassador Gerard, March 31, 1915 135 Ambassador Gerard to the Secretary of State, April 5, 1915. 136 The Secretary of State to Ambassador Gerard, April 28, 1915 138 Ambassador Gerard to the Secretary of State, June 7, 1915. 139 The Secretary of State to Ambassador Gerard, June 24, 1915 141 Ambassador Gerard to the Secretary of State, July 30, 1915. 145 The Secretary of State to Ambassador Gerard, August 10, 1915 148 Ambassador Gerard to the Secretary of State, September 20, 1915 150 The Secretary of State to Ambassador Gerard, October 12, 1915 152 Ambassador Gerard to the .Secretary of State, December 2, 1915 154 OPINIONS OF ATTORNEYS GENERAL, DECISIONS OF FEDERAL COURTS AND DIPLOMATIC CORRESPONDENCE RESPECTING THE TREATIES OF 1785, 1799 AND 1828 BETWEEN THE UNITED STATES AND PRUSSIA. Texts of Treaties between the United States and Prussia TREATY OF 1785^ Concluded September lo, 1785; Ratified by the Congress May 17, 17S6; Ratifications Exchanged October, 1786 His Majesty the King of Prussia and the United States of America, desiring to fix, in a permanent and equitable manner, the rules to be observed in the intercourse and commerce they desire to- establish between their respective countries. His Majesty and the United States have judged that the said end cannot be better obtained than by taking the most perfect equality and reciprocity for the basis of their agree- ment. With this view. His Majesty the King of Prussia has nominated and constituted as his Plenipotentiary, the Baron Frederick William de Thulemeier, his Privy Counsellor of Embassy, and Envoy Extra- ordinary with their High Mightinesses the States-General of the United Netherlands ; and the United States have, on their part, given full powers to John Adams, Esquire, late one of their Ministers Plenipo- tentiary for negotiating a peace, heretofore a Delegate in Congress from the State of Massachusetts, and Chief Justice of the same, and now Minister Plenipotentiary of the United States with His Britannic Majesty; Doctor Benjamin Franklin, late Minister Plenipotentiary at the Court of Versailles, and another of their Ministers Plenipotentiary for negotiating a peace ; and Thomas Jefferson, heretofore a Delegate in Congress from the State of Virginia, and Governor of the said State, and now Minister Plenipotentiary of the United States at the 18 Stat. L. 378; Malloy's Treaties, etc., Vol. 2, p. 1477. Note: This treaty expired by its own limitations October, 1796, but Article XII was revived by Article XII of the treaty of 1828. 2 THE TREATIES OF 1785, 1799 AND 1828 Court of His Most Christian Majesty; which respective Plenipotenti- aries, after having exchanged their full powers, and on mature delibera- tion, have concluded, settled, and signed the following articles : Article I There shall be a firm, inviolable, and universal peace and sincere friendship between His Majesty the King of Prussia, his heirs, suc- cessors, and subjects, on the one part, and the United States of America and their citizens on the other, without exception of persons or places. Article II The subjects of His Majesty the King of Prussia may frequent all the coasts and countries of the United States of America, and reside and trade there in all sorts of produce, manufactures, and merchandize ; and shall pay within the said United States no other or greater duties, charges, or fees whatsoever, than the most favoured nations are or shall be obliged to pay: and they shall enjoy all the rights, privileges, and exemptioxis in navigation and commerce which the most favoured nation does or shall enjoy; submitting themselves nevertheless to the laws and usages there established, and to which are submitted the citizens of the ynited States, and the citizens and subjects of the most favoured nations. Article III In like manner the citizens of the United States of America may frequent all the coasts and countries of His Majesty the King of Prus- sia, and reside and trade there in all sorts of produce, manufactures, and merchandize; and shall pay in the dominions of his said Majesty no other or greater duties, charges, or fees whatsoever than the most favoured nation is or shall be qbliged to pay: and they shall enjoy all the rights, privileges, and exemptions in navigation and commerce which the most favoured nation does or shall enjoy ; submitting them- selves nevertheless to the laws and usages there established, and to which are submitted the subjects of His Majesty the King of Prussia, and the subjects and citizens of the most favoured nations. Article IV More especially each party shall have a right to carry their own produce, manufactures, and merchandize in their own or any other vessels to any parts of the dominions of the other, where it shall be BETWEEN THE UNITED STATES AND PRUSSIA 3 lawful for all the subjects or citizens of that other freely to purchase them; and thence to take the produce, manufactures, and merchandize of the other, which all the said citizens or subjects shall in like manner be free to sell them, paying in both cases such duties, charges, and fees only as are or shall be paid by the most favoured nation. Never- theless, the King of Prussia and the United States, and each of them, reserve to themselves the right, where any nation restrains the trans- portation of merchandise to the vessels of the country of which it is the growth or manufacture, to establish against such nations retaliating regulations ; and also the right to prohibit, in their respective countries, the importation and exportation of all merchandise whatsoever, when reasons of state shall require it. In this case, the subjects or citizens of either of the contracting parties shall not import nor export the merchandise prohibited by the other ; but if one of the contracting parties permits any other nation to import or export the same merchan- dize, the citizens or subjects of the other shall immediately enjoy the same liberty. Article V The merchants, commanders of vessels, or other subjects or citizens of either party, shall not within the ports of jurisdiction of the other be forced to unload any sort of merchandize into any other vessels, nor to receive them into their own, nor to wait for their being loaded longer than they please. Article VI That the vessels of either party loading within the ports or jurisdic- tion of the other may not be uselessly harassed or detained, it is agreed that all examinations of goods required by the laws shall be made before they are laden on board the vessel, and that there shall be no examination after ; nor shall the vesssel be searched at any time, unless articles shall have been laden therein clandestinely and illegally, in which case the person by whose order they were carried on board, or who carried them without order, shall be liable to the laws of the land in which he is ; but no other person shall be molested, nor shall any other goods, nor the vessel, be seized or detained for that cause. Article VII Each party shall endeavor, by all the means of their power, to protect and desend [defend] all vessels and other effects belonging to the 4 THE TREATIES OF 1785, 1799 AND 1828 citizens or subjects of the other, which shall be within the extent of their jurisdiction, by sea or by land; and shall use all their efforts to recover, and cause to be restored to the right owners, their vessels and effects which shall be taken from them within the extent of their said jurisdiction. Article VIII The vessels of the subjects or citizens of either party, coming on any coast belonging to the other, but not willing to enter into port, or being entered into port, and not willing to unload their cargoes or break bulk, shall have liberty to depart and to pursue their voyage without molestation, and without being obliged to render account of their cargo, or to pay any duties, charges, or fees whatsoever, except those established for vessels entered into port, and appropriated to the maintenance of the port itself, or of other establishments for the safety and convenience of navigators, which duties, charges, and fees shall be the same, and shall be paid on the same footing as in the case of subjects or citizens of the country where they are established. Article IX When any vessel of either party shall be wrecked, foundered, or other- wise damaged on the coasts, or within the dominion of the other, their respective subjects or citizens shall receive, as well for themselves as for their vessels and effects, the same assistance which would be due to the inhabitants of the country where the damage happens, and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case; and if the operations of repair shall require that the whole or any part of their cargo be unladed, they shall pay no duties, charges, or fees on the part which they shall relade and carry away. The ancient and barbarous right to wrecks of the sea shall be entirely abolished, with respect to the subjects and citizens of the two contracting parties. Article X The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testa- ment, donation, or otherwise; and their representatives, being subjects or citizens of the other party, shall succeed to their said personal goods, whether by testament or ab intestato, and may take possession thereof either by themselves or by others acting for them, and dispose of the BETWEEN THE UNITED STATES AND PRUSSIA 5 same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the representative, such care shall be taken of the said goods, and for so long a time as would be taken of the goods of a native in like case, until the lawful owner may take measures for receiving them. And if question shall arise among several claimants to which of them the said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where, on the death of any person holding real estate within the territories of the one party, such real estate would by the laws of the land descend on a citizen or subject of the other, were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proce[e]ds without molestation, and exempt from all rights of detraction on the part of the Govern- ment of the respective States. But this article shall not derogate in any manner from the force of the laws already published or hereafter to be published, by His Majesty the King of Prussia, to prevent the emigration of his subjects. Article XI The most perfect freedom of conscience and of worship is granted to the citizens or subjects of either party within the jurisdiction of the other, without being liable to molestation in that respect for any cause other than an insult on the religion of others. Moreover, when the subjects or citizens of the one party shall die within the jurisdiction of the other, their bodies shall be buried in the usual burying-grounds or other decent and suitable places, and shall be protected from viola- tion or disturbance. Article XII ' If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the. subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vesssel belonging to the neutral party, although such things belong to an enemy of the other ; and the same freedom shall iRevived by treaty of 1828. 6 THE TREATIES OF 178S, 1799 AND 1828 be extended to persons who shall be on board a free vesssel, although they should be enemies to the other party, unless they be soldiers in actual service of such enemy. Article XIIJ And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and mis- understandings that usually arise respecting the merchandize heretofore called contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of one of the parties to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors : And it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed, of a vessel stopped for articles heretofore deemed contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage. Article XIV And in the same case 'where one of the parties is engaged in war with another Power, that the vessels of the neutral party may be readily and certainly known, it is agreed that they shall be provided with sea- letters or passports, which shall express the name, the property, and burthen of the vessel, as also the name and dwelling of the master; which passports shall be made out in good and due forms (to be settled by conventions between the parties whenever occasion shall require), shall be renewed as often as the vessel shall return into port, and shall be exhibited whensoever required, as well in the open sea as in port. But if the said vessel be under convoy of one or more vessels of war belonging to the neutral party, the simple declaration of the BETWEEN THE UNITED STATES AND PRUSSIA 7 officer commanding the convoy, that the said vessel belongs to the party of which he is, shall be considered as establishing the fact, and shall relieve both parties from the trouble of further examination. Article XV And to prevent entirely all disorder and violence in such cases, it is stipulated, that when the vessels of the neutral party, sailing without convoy, shall be met by any vessel of war, public or private, of the other party, such vessel of war shall not approach within cannon-shot of the said neutral vessel, nor send more than two or three men in their boat on board the same, to examine her sea-letters or passports. And all persons belonging to any vessel of war, public or private, who shall molest or injure in any manner whatever the people, vessels, or effects of the other, party, shall be responsible in their persons and property for damages and interest, sufficient security for which shall be given by all commanders of private armed vessels before they are commissioned. Article XVI' It is agreed that the subjects or citizens of each of the contracting parties, their vessels and effects, shall not be liable to any embargo or detention on the part of the other, for any military expedition, or other public or private purpose whatsoever. And in all cases of seizure, detention, or arrests for debts contracted or offences committed by any citizen or subject of the one party, within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular course of proceedings usual in such cases. Article XVII If any vessel or effects of the neutral Power be taken by an enemy of the other, or by a pirate, and retaken by that other, they shall be brought into some port of one of the parties, and delivered into the custody of the officers of that port, in order to be restored entire to the true proprietor, as soon as due proof shall be made concerning the property thereof. Article XVIII If the citizens or subjects of either party, in danger from tempests, pirates, enemies, or other accident, shall take refuge with their vessels 8 THE TREATIES OF 1785, 1799 AND 1828 or effects, within the harbours or jurisdiction of the other, they shall be received, protected, and treated with humanity and kindness, and shall be permitted to furnish themselves, at reasonable prices, with all refreshments, provisions, and other things necessary for their sus- tenance, hea[l]th, and accommodation, and for the repair of their vessels. Article XIX The vessels of war, public and private, of both parties, shall carry freely wheresoever they please the vessels and effects taken from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others; nor shall such prizes be arrested, searched, or put under legal process, when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commissions, which the commanding officer of such vessel shall be obliged to shew. But no vessel which shall have made prices on the subjects of His Most Christian Majesty the King of France shall have a right of asylum in the pdrts or havens of the said United States ; and if any such be forced therein by tempest or dangers of the sea, they shall be obliged to depart as soon as possible, according to the tenor of the treaties existing between his said Most Christian Majesty and the said United States. Article XX No citizen or subject of either of the contracting parties shall take from any Power with which the other may be at war any commission or letter of marque for arming any vessel to act as a privateer against the other, on pain of being punished as a pirate ; nor shall either party hire, lend, or give any part of their naval or military force to the enemy of the other, to aid them offensively or defensively against that other. Article XXI If the two contracting parties should be engaged in war against a common enemy, the following points shall be observed between them : 1. If a vessel of one of the parties retaken by a privateer of the other shall not have been in possession of the enemy more than twenty- four hours, she shall be restored to the first owner for one-third of BETWEEN THE UNITED STATES AND PRUSSIA 9 the value of the vessel and cargo; but if she shall have been more than twenty-four hourg^ in possession of the enemy, she shall belong wholly to the recaptor. 2. If in the same case the recapture were by a public vessel of war of the one party, restitution shall be made to the owner for one-thirtieth part of the value of the vessel and cargo, if she shall not have been in possession of the enemy more than twenty-four hours and one-tenth of the said value where she shall have been longer; which sums shall be distributed in gratuities to the recaptors. 3. The restitution in the cases aforesaid shall be after due proof of property, and surety given for the part to which the recaptors are entitled. 4. The vessels of war, public and private, of the two parties, shall be reciprocally admitted with their prizes into the respective ports of each : but the said prizes shall not be discharged nor sold there, until their legality shall have been decided, according to the laws and regu- lations of States to which the captor belongs, but by the judicatures of the place into which the prize shall have been conducted. 5. It shall be free to each party to make such regulations as they shall judge necessary for the conduct of their respective vessels of war, public and private, relative to the vessels which they shall take and carry into the ports of the two parties. Article XXII Where the parties shall have a common enemy, or shall both be neutral, the vessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels as long as they hold the same course against all force and violence, in the same manner as they ought to protect and defend vessels belonging to the party of which they are. Article XXIII If war should arise between the two contracting parties, the mer- chants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs and may depart freely, carrying off all their effects without molestation or hindrance. And all women and children, scholars of every faculty, cultivators of the earth, artizans, manufacturers, and fishermen, un- 10 THE TREATIES OF 1785, 1799 AND 1828 armed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power by the events of war they may happen to fall ; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. And all merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to be obtained, and and more general, shall be allowed to pass free and unmolested; and neither of the contracting Powers shall grant or issue any commission to any private armed vessels, em- powering them to take or destroy such trading vessels or interrupt such commerce. Article XXIV And to prevent the destruction of prisoners of war, by sending them into distant and inclement countries, or by crowding them into close and noxiows places, the two contracting parties solemnly pledge them- selves to each other and to the world that they will not adopt any such practice ; that neither will send the prisoners whom they may take from the other into the East Indies, or any other parts of Asia or Africa, but that they shall be placed in some part of their dominions in Europe or America, in wholesome situations; that they shall not be confined in dungeons, prison-ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs ; that the officers shall be enlarged on their paroles within convenient districts, and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomly and good as are provided by the party in whose power they are for their own troops ; that the officers shall also be daily furnished by the party in whose power they are with as many rations, and of the same articles and quality as are allowed by them, either in kind or by commutation, to officers of equal rank in their own army ; and all others shall be daily furnished by them with such ration as they allow to a common soldier in their own service; the value whereof shall be paid by the other party on a mutual adjustment of accounts for the sub- sistence of prisoners at the close of the war; and the said accounts BETWEEN THE UNITED STATES AND PRUSSIA U shall not be mingled with or set off against any others, nor the bal- /ances due on them be withheld as a satisfaction or reprisal for any other article or for any other cause, real or pretended, whatever; that each party shall be allowed to keep a commissary of prisoners of their own appointment, with every separate cantonment of prisoners in pos- session of the other, which commissary shall see the prisoners as often as he pleases, shall be allowed to receive and distribute whatever com- forts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him ; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment, after thej' shall have been designated to him, such individual officer or other prisoner shall forfeit so much of the benefit of this article as provides for his enlargement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article; but, on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowl- edged articles in the law of nature or nations. Article XXV The two contracting parties grant to each other the liberty of having, each in the ports of the other. Consuls, Vice-Consuls, Agents, and Commissaries of their own appointment, whose functions shall be regulated by particular agreement whenever either party shall chuse to make such appointment ; but if any such Consuls shall exercise comr^erce, they shall be submitted to the same laws and usages to which the private individuals of their nation are submitted in the same place. Article XXVI If either party shall hereafter grant to any other nation, any par- ticular favour in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yielding the compensation, where such nation does the same. Article XXVII His Majesty the King of Prussia and the United States of America agree that this treaty shall be in force during the term of ten years 12 THE TREATIES OF 1785, 1799 AND 1828 from the exchange of ratifications; and if the expiration of that term should happen during the course of a war between them, then the articles before provided for the regulation of their conduct during such a war, shall continue in force until the conclusion of the treaty which shall re-establish peace; and that this treaty shall be ratified on both sides, and the ratifications exchanged within one year from the day of its signature. In testimony whereof the Plenipotentiaries before mentioned, have hereto subscribed their names and affixed their seals, at the places of their respective residence, and at the dates expressed under their several signatures. [Seal] B. Franklin. Passy, July p, i/S^. [Seal] Th : Jefferson. Boris, July 28, 1785. [Seal] John AdAms. London, August 5, 1785. [Seal] F. G. De Thulemeier. A la Haye le 10 Septemhre, 1785. TREATY OF 1799^ Concluded July 11, 1799; Ratification Advised by the Senate, February 18, 1800; Ratified by the President, February 19, 1800; Ratifica- tions Exchanged June 22, 1800; Proclaimed November 4, 1800. His Majesty the King of Prussia and the United States of America, desiring to maintain upon a stable and permanent footing the connec- tions of good understanding which have hitherto so happily subsisted between their respective States, and for this purpose to renew the treaty of amity and commerce concluded between the two Powers at the Hague the 10th of September, 1785, for the term of ten years, His Prussian Majesty has nominated and constituted as his plenipotentiaries the Count Charles WilHam de Finkenstein, his Minister of State, of War, and of the Cabinet, Knight of the Orders of the Black Eagle and of the Red Eagle, and Commander of that of St. John of Jerusalem, the Baron Philip Charles d'Alvensleben, his Minister of State, of War, and of the Cabinet, Knight of the Orders of the Black Eagle and of the Red Eagle, and of that of St. John of Jerusalem, and the Count 18 Stat. L. 162; Malloy's Treaties, etc., Vol. 2, p. 1486. BETWEEN THE UNITED STATES AND PRUSSIA 13 Christian Henry Curt de Haugwitz, his Minister of State, of War, and of the Cabinet, Knight of the Orders of the Black Eagle and of the Red Eagle; and the President of the United States has furnished with their full powers John Quincy Adams, a citizen of the United States, and their Minister Plenipotentiary at the Court of His Prus- sian Majesty; which Plenipotentiaries, after having exchanged their full powers, found in good and due form, have concluded, settled, and signed the following articles : Article I There shall be in future, as there has been hitherto, a firm, inviolable, and universal peace and a sincere friendship between His Majesty the King of Prussia, his heirs, successors, and subjects, on the one part, and the United States of America and their citizens on the other, without exception of persons or places. Article II The subjects of His Majesty the King of Prussia may frequent all the coasts and countries of the United States of America, and reside and trade there in all sorts of produce, manufactures, and merchandize, and shall pay there no other or greater duties, charges, or fees what- soever than the most favoured nations are or shall be obliged to pay. They shall also enjoy in navigation and commerce all the rights, priv- ileges, and exemptions which the most favoured nation does or shall enjoy, submitting themselves, nevertheless, to the e[s]tablished laws and usages to which are submitted the citizens of the United States and the most favoured nations. Article III In like manner, the citizens of the United States of America may frequent all the coasts and countries of His Majesty the King of Prus- sia, and reside and trade there in all sorts of produce, manufactures, and merchandize, and shall pay, in the dominions of his said Majesty, no other or greater duties, charges, or fees whatsoever than the most favoured nation is or shall be obliged to pay; and they shall enjoy all the rights, privileges, and exemptions in navigation and commerce which the most favoured nation does or shall enjoy, submitting themselves, nevertheless, to the established laws and usages to which are submitted the subjects of His Majesty the King of Prussia and the subjects and the citizens of the most favoured nations. 14 THE TREATIES OF 1785, 1799 AND 1828 Article IV More especially, each party shall have a right to carry their own produce, manufactures, and mefchandize, in their own. or any other vessels, to any parts of the dominions of the other, where it shall be lawful for all the subjects and citizens of that other freely to purchase them, and thence to take the produce, manufactures, and merchandize of the other, which all the said citizens or subjects shall in like manner be free to sell to them, paying in both cases such duties, charges, and fees only, as are or shall be paid by the most favoured nation. Never- theless, His Majesty the King of Prussia and the United States respec- tively reserve to themselves the right, where any nation restrains the transportation of merchandize to the vessels of the country of which it is the growth or manufacture, to establish against such nation retaliat- ing regulations ; and also the right to prohibit in their respective coun- tries the importation and exportation of all merchandize whatsoever, when reasons of state shall require it. In this case the subjects or citizens of either of the contracting parties shall not import or export the merchandize prohibited by the other. But if one of the contracting parties permits any other nation to import or export the same merchan- dize, the citizens or subjects of the other shall immediately enjoy the same liberty. Article V The merchants, commanders of vessels, or other subjects or citizens of either party, shall not, within the ports or jurisdiction of the other, be forced to unload any sort of merchandize into any other vessels nor to receive them into their own, nor to wait for their being loaded longer than they please. Article VI That the vessels of either party, loading within the ports or jurisdic- tion of the other, may not be uselessly harassed, or detained, it is agreed, that all examinations of goods, required by the laws, shall be made before they are laden on board the vessel, and that there shall be no examination after; nor shall the vessel be searched at any time, unless articles shall have been laden therein clandestinely and illegally, in which case the person by whose order they were carried on board, or who carried them without order, shall be liable to the laws of the land in which he is, but no other person shall be molested, nor shall any other goods, nor the vessel, be seized or detained for that cause. BETWEEN THE UNITED STATES AND PRUSSIA 15 Article VII Each party shall endeavour by all the means in their power to protect and defend all vessels and other effects, belonging to the citizens or subjects of the other, which shall be within the extent of their jurisdic- tion by sea or by land; and shall use all their efforts to recover and cause to be restored to the right owners their vessels and effects, which shall be taken from them within the extent of their said jurisdiction. Article VIII The vessels of the subjects or citizens of either party, coming on any coast belonging to the other, but not willing to enter into port, or who entering into port are not willing to unload their cargoes or break bulk, shall have liberty to depart and to pursue their voyage without molestation, and without being obliged to render account of their cargoes, or to pay any duties, charges, or fees whatsoever, except those established for vessels entered into port, and appropriated to the main- tenance of the port itself, or of other establishments for the safety and convenience of navigators, which duties, charges, and fees shall be the same, and shall be paid on the same footing, as in the case of subjects or citizens of the country where they are established. Article IX When any vessel of either party shall be wrecked, foundered, or otherwise damaged, on the coasts or within the dominions of the other, their respective citizens or subjects shall receive, as well for themselves as for their vessels and effects the same assistance which would be due to the inhabitants of the country where the damage happens, and shall pay the same charges and dues only as the said inhabitants would be subject to pay in a like case; and if the operations of repair shall require that the whole or any part of the cargo be unladed, they shall pay no duties, charges, or fees on the part which they shall relade and carry away. The ancient and barbarous right to wrecks of the sea shall be entirely abolished with respect to the subjects or citizens of the two contracting parties. Article X The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testa- 16 THE TREATIES OF 1785, 1799 AND 1828 ment, donation, or otherwise, and their representatives, being subjects or citizens of the other party, shall succeed to their said personal goods, whether by testament or ab intestate, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native in like case, untill the lawfull owner may take measures for receiving them. And if question should arise among several claimants to which of them the said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where, on the death of any person, holding real estate, within the terri- tories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds, without molestation, and exempt from all rights of detraction on the part of the Government of the respective States. But this article shall not derogate in any manner from the force of the laws already published or hereafter to be pub- lished by His Majesty the King of Prussia, to prevent the emigration of his subjects. Article XI The most perfect freedom of conscience and of worship is granted to the citizens or subjects of either party within the jurisdiction of the other, and no person shall be molested in that respect for any cause other than an insult on the religion of others. Moreover, when the subjects or citizens of the one party shall die within the jurisdiction of the other, their bodies shall be buried in the usual burying-grounds, or other decent and suitable places, and shall be protected from viola- tion or disturbance. Article XII Experience having proved, that the principle adopted in the twelfth article of the treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the two last wars, and especially in that which still continues, the two contracting parties propose, after the return of a general peace, to agree, either separately between themselves or jointly with other Powers alike interested, to BETWEEN THE UNITED STATES AND PRUSSIA 17 concert with the great maritime Powers of Europe such arrangements and such permanent principles as may serve to consoUdate the hberty and the safety of the neutral navigation and commerce in future wars. And if in the interval either of the contracting parties should be engaged in a war to which the other should remain neutral, the ships of war and privateers of the belligerent Power shall conduct themselves to- wards the merchant vessels of the neutral Power as favourably as the course of the war then existing may permit, observing the principles and rules of the law of nations generally acknowledged. Article XIII And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and mis- understandings that usually arise respecting merchandize of contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property tO' indi- viduals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from, their proceeding, paying, however, a reasonable compensa- tion for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage. All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpeter, sulphur, cuirasses, pikes, swords, belts, cartouch boxes, saddles and bridles, beyond the quantity necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger, ought to have ; and in general whatever is comprised under the denomination of arms and 18 THE TREATIES OF 1785, 1799 AND 1828 military stores, of what description soever, shall be deemed objects of contraband. Article XIV To ensure to the vessels of the two contracting parties the advantage of being readily and certainly known in time of war, it is agreed that they shall be provided with the sea-letters and documents hereafter specified : 1. A passport, expressing the name, the property, and the burthen the vessel, as also the name and dwelling of the master, which passport shall be made out in good and due form, shall be renewed as often as the vessel shall return into port, and shall be exhibited whensoever required, as well in the open sea as in port. But if the vessel be under convoy of one or more vessels of war, belonging to the neutral party, the simple declaration of the officer commanding the convoy, that the said vessel belongs to the party of which he is, shall be considered as establishing the fact, and shall relieve both parties from the trouble of further examination. 2. A charter-party, that is to say, the contract passed for the freight of the whole vessel, or the bills of lading given for the cargo in detail. 3. The list of the ship's company, containing an indication by name and in detail of the persons composing the crew of the vessel. These documents shall always be authenticated according to the forms estab- lished at the place from which the vessel shall have sailed. As their production ought to be exacted only when one of the con- tracting parties shall be at war, and as their exhibition ought to have no other object than to prove the neutrality of the vessel, its cargo, and company, they shall not be deemed absolutely necessary on board such vessels belonging to the neutral party as shall have sailed from its ports before or within three months after the Government shall have been informed of the state of war in which the belligerent party shall be engaged. In the interval, in default of these specific documents, the neutrality of the vessel may be established by such other evidence as the tribunals authorised to judge of the case may deem sufficient. Article XV And to prevent entirely all disorder and violence in such cases, it is stipulated that, when the vessels of the neutral party, sailing without convoy, shall be met by any vessels of war, public or private, of the BETWEEN THE UNITED STATES AND PRUSSIA 19 other party, such vessel of war shall not send more than two or three men in their boat on board the said neutral vessel to examine her pass- ports and documents. And all persons belonging to any vessel of war, public or private, who shall molest or insult in any manner whatever, the people, vessels, or effects of the other party, shall be responsible in their persons and property for damages and interest, sufficient secur- ity for which shall be given by all commanders of private armed vessels before they are commissioned. Article XVI In times of war, or in cases of urgent necessity, when either of the contracting parties shall be obliged to lay a general embargo, either in all its ports, or in certain particular places, the vessels of the other party shall be subject to this measure, upon the same footing as those of the most favoured nations, but without having the right to claim the exemption in their favour stipulated in the sixteenth article of the for- mer treaty of 1785. But oh the other hand, the proprietors of the vessels which shall have been detained, whether for some military expedition, or for what other use soever, shall obtain from the Government that shall have employed them an equitable indemnity, as well for the freight as for the loss occasioned by the delay. And furthermore, in all cases of seizure, detention, or arrest, for debts contracted or offences com- mitted by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular course of proceed- ings usual in such cases. Article XVII If any vessel or eft'ects of the neutral Power be taken by an enemy of the other, or by a pirate, and retaken by the Power at war, they shall be restored to the first proprietor, upon the conditions hereafter stipulated in the twenty-first article for cases of recapture. Article XVIII If the citizens or subjects of either party, in danger from tempests, pirates, enemies, or other accidents, shall take refuge, with their ves- sels or effects, within the harbours or jurisdiction of the other, they shall be received, protected, and treated with numanity and kindness, and shall be permitted to furnish themselves, at reasonable prices, with 20 THE TREATIES OF 1785, 1799 AND 1828 all refreshments, provisions, and other things necessary for their, sustenance, health, and accom.[m]odation, and for the repair of their vessels. Article XIX The vessels of war, public and private, of both parties, shall carry freely, wheresoever they please, the vessels and effects taken from their enemies, without being obliged to pay any duties, charges, or fees to offi- cers of admiralty, of the customs, or any others ; nor shall such prizes be arrested, searched, or put under legal process, when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commis- sions, which the commanding officer of such vessel shall be obliged to shew. But, conformably to the treaties existing between the United States and Great Britain, no vessel that shall have made a prize upon British subjects shall have a right to shelter in the ports of the United States, but if forced therein by tempests, or any other danger or accident of the sea, they shall be obliged to depart as soon as possible. Article XX No citizen or subject of either of the contracting parties shall take from any Power with which the other may be at war any commission or letter of marque, for arming any vessel to act as a privateer against the other, on pain of being punished as a pirate ; nor shall either party hire, lend, or give any part of its naval or military force to the enemy of the other, to aid them offensively or defensively against the other. Article XXI If the two contracting parties should be engaged in a war against a common enemy, the following points shall be observed between them : 1. If a vessel of one of the parties, taken by the enemy, shall, before being carried into a neutral or enemy's port, be retaken by a ship of war or privateer of the other, it shall, with the cargo, be restored to the first owners, for a compensation of one-eighth part of the value of the said vessel and cargo, if the recapture be made by a public ship of war, and one-sixth part, if made by a privateer. .2. The restitution in such cases shall be after due proof of property, and surety given for the part to which the recaptors are entitled. 3. The vessels of war, public and private, of the two parties, shall BETWEEN THE UNITED STATES AND PRUSSIA 21 reciprocally be admitted with their prizes into the respective ports of each, but the said prizes shall not be discharged or sold there, until their legality shall have been decided according to the laws and regula- tions of the State to which the captor belongs, but by the judicatories of the place into which the prize shall have been conducted. 4. It shall be free to each party to make such regulations as they shall judge necessary, for the conduct of their respective vessels of war, public and private, relative to the vessels, which they shall take, and carry into the ports of the two parties. Article XXII When the contracting parties shall have a common enemy, or shall both be neutral, the vessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels as long as they hold the same course, against all force and violence, in the same manner as they ought to protect and defend vessels belonging to the party of which they are. Article XXIII If war should arise between the two contracting parties, the mer- chants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance ; and all women and children scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, un- armed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power by the events of war they may happen to fall ; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. Article XXIV And to prevent the destruction of prisoners of war, by sending them into distant and inclement countries, or by crowding them into close and noxious places, the two contracting parties solemnly pledge them- 22 THE TREATIES OF 1785, 1799 AND 1828 selves to the world and to each other that they will not adopt any such practice ; that neither will send the prisoners whom they may take from the other into the East Indies or any other parts of Asia or Africa, but that they shall be placed in some parts of their dominions in Europe or America, in wholesome situations ; that they shall not be confined in dungeons, prison-ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs ; that the officers shall be enlarged on their paroles within convenient districts, and have comfortaMe quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomly and good as are provided by the party in whose power they are for their own troops; that the officers shall also be daily furnished by the party in whose power they are with as many rations, and of the same articles and quality as are allowed by them, either in kind or by commutation, to officers of equal rank in their own army; and all 6thers shall be daily furnished by them with such ration as they shall allow to a common soldier in their own service ; the value whereof shall be paid by the other party on a mutual adjust- ment of accounts for the subsistence of prisoners at the close of the war; and the said accounts shall not be mingled with or set off against any others, nor the balances due on them be withheld as a satisfaction or reprizal for any other article or for any other cause, real or pre- tended, whatever. That each party shall be allowed to keep a commis- sary of prisoners of their own appointment, with every separate canton- ment of prisoners in possession of the other, which commissary shall see the prisoners as often as he pleases, shall be allowed to receive and distribute whatever comforts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him ; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment after they shall have been designated to him, such individual officer or other prisoner shall forfeit so much of the benefit of this article as provides for his en- largement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annuUing or suspending this and the next pre- ceding article ; but, on the contrary, that the state of war is precisely that for wJ(ich they are provided, and during which they are to he as sacredly observed as the most acknowledged articles in the law of nature and nations. BETWEEN THE UNITED STATES AND PRUSSIA 23 Article XXV The two contracting parties have granted to each other the Hberty of having each in the ports of the other Consuls, Vice-Consuls, Agents, and Commissaries of their own appointment, who shall enjoy the same privileges and powers as those of the most favoured nations ; but if any such Consuls shall exercise commerce, they shall be submitted to the same laws and usages to which the private individuals of their nation are submitted in the same place. Article XXVI If either party shall hereafter grant to any other nation any particular favour in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yielding the same compensation, when the grant is conditional. Article XXVII His Majesty the King of Prussia and the Uinited States of America agree that this treaty shall be in force during the term of ten years from the exchange of the ratifications ; and if the expiration of that term should happen during the course of a war between them, then the articles before provided for the regulation of their conduct during such a war shall continue in force until the conclusion of the treaty which shall restore peace. This treaty shall be ratified on both sides, and the ratifications ex- changed within one year from the day of its signature, or sooner if possible. In testimony whereof, the Plenipotentiaries before mentioned have hereto subscribed their names and affixed their seals. Done at Berlin, the eleventh of July, in the year one thousand seven hundred and ninety-nine. [Seal.] John Quincy Adams. [Seal.] Charles William Comte de Finkenstein. [Seal.] Philippe Charles d'Alvensleben. [Seal.] Chretien Henri Curce Comte de Haugwitz. 24 THE TREATIES OF 1785, 1799 AND 1828 TREATY OF 1828^ Concluded May i, 1828; Ratification Advised by the Senate, May 14, 1828 ; Ratification again Advised and Time for Exchange of Rati- fication Extended by the Senate, March p, i82p; Ratifications Exchanged March 14, 18 2p; Proclaimed March 14, i82p. The United States of America and His Majesty the King of Prussia, equally animated with the desire of maintaining the relations of good understanding which have hitherto so happily subsisted between their respective States, of extending, also, and consolidating the commercial intercourse between them, and convinced that this object cannot better be accomplished than by adopting the system of an entire freedom of navigation, and a perfect reciprocity, based upon principles of equity equally beneficial to both countries, and applicable in time of peace as well as in time of war, have, in consequence, agreed to enter into nego- tiations for the conclusion of a treaty of navigation and commerce ; for which purpose the President of the United States has conferred full powers on Henry Clay, their Secretary of State; and His Majesty the King of Prussia has conferred like powers on the Sieur Ludwig Niederstetter, Charge d'Aff aires of His said Majesty, near the United States; and the said Plenipotentiaries, having exchanged their said full powers, found in good and due form, have concluded and signed the following articles : Article I There shall be between the territories of the high contracting parties a reciprocal liberty of commerce and navigation. The inhabitants of their respective States shall mutually have liberty to enter the ports, places, and rivers of the territories of each party, wherever foreign commerce is permitted. They shall be at liberty, to sojourn and reside in all parts whatsoever of said territories, in order to attend to their affairs ; and they shall enjoy, to that effect, the same security and pro- tection as natives of the country wherein they reside, on condition of their submitting to the laws and ordinances there prevailing. Article H Prussian vessels arriving either laden or in ballast in the ports of the United States of America, and, reciprocally, vessels of the United States arriving either laden or in ballast in the ports of the Kingdom of Prus- 18 Stat. L. 378; Malloy's Treaties, etc., Vol. 2, p. 1496. BETWEEN THE UNITED STATES AND PRUSSIA 25 sia, shall be treated, on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, light-houses, pilotage, salvage, and port charges, as well as to the fees and perquisites of public ofificers, and all other duties and charges, of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establishment whatsoever. Article III All kinds of merchandise and articles of commerce, either the produce of the soil or the industry of the United States of America, or of any other country, which may be lawfully imported into the ports of the Kingdom of Prussia, in Prussian vessels, may also be so imported in vessels of the United States of America, without paying other or higher duties or charges, of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establishments whatsoever, than if the same merchandise or produce had been imported in Prussian vessels. And, reciprocally, all kind of merchandise and articles of commerce, either the produce of the soil or of the industry of the Kingdom of Prussia, or of any other country, which may be lawfully imported into the ports of the United States in vessels of the said States, may also be so imported in Prussian vessels, without paying other or higher duties or charges, of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establish- ments whatsoever, than if the same merchandise or produce had been imported in vessels of the United States of America. Article IV To prevent the possibility of any misunderstanding, it is hereby de- clared that the stipulations contained in the two preceding articles are to their full extent applicable to Prussian vessels and their cargoes arriving in the ports of the United States of America, and, reciprocally, to vessels of the said States and their cargoes, arriving in the ports of the kingdom of Prussia, whether the said vessels clear directly from the ports of the country to which they respectively belong, or from the ports of any other foreign country. 26 THE TREATIES OF 1785, 1799 AND 1828 Article V No higher or other duties shall be imposed on the importation into the United States of any article the produce or manufacture of Prussia, and no higher or other duties shall be imposed on the importation into the Kingdom of Prussia of any article the produce or manufacture of the United States, than are or shall be payable on the like article being the produce or manufacture of any other foreign country. Nor shall any prohibition be imposed on the importation or exportation of any article the produce or manufacture of the United States, or of Prussia, to or from the ports of the United States, or to or from the ports of Prussia, which shall not equally extend to all other nations. Article VI All kind of merchandise and articles of commerce, either the produce of the soil or of the industry of the United States of America, or of any other country, which may be lawfully exported from the ports of the said United States in national vessels, may also be exported therefrom in Prussian vessels without paying other or higher duties or charges, of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establishments whatsoever, than if the same merchandise or produce had been exported in vessels of the United States of America. An exact reciprocity shall be observed in the ports of the Kingdom of Prussia, so that all kind of merchandise and articles of commerce, either the produce of the soil or the industry of the said Kingdom, or of any other country, which may be lawfully exported from Prussian ports in national vessels, may also be exported therefrom in vessels of the United States of America, without paying other or higher duties or charges of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establishments whatsoever, than if the same merchandise or produce had been exported in Prussian vessels. Article VII The preceding articles are not applicable to the coastwise navigation of the two countries, which is respectively reserved by each of the high contracting parties exclusively to itself. BETWEEN THE UNITED STATES AND PRUSSIA 27 Article VIII No priority or preference shall be given, directly or indirectly, by either of the contracting parties, nor by any company, corporation, or agent, acting on their behalf or under their authority, in the purchase of any article of commerce, lawfully imported, on account of or in reference to the character of the vessel, whether it be of the one party or of the other, in which such article was imported; it being the true intent and meaning of the contracting parties that no distinction or difiference whatever shall be made in this respect. Article IX If either party shall hereafter grant to any other nation any par- ticular favor in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely" granted to such other nation, or on yielding the same compensation, when the grant is conditional. Article X The t^vo contracting parties have granted to each other the liberty of having, each in the ports of the other. Consuls, Vice-Consuls, Agents, and Commissaries of their own appointment, who shall enjoy the same privileges and powers as those of the ,most favored nations. But if any such Consul shall exercise commerce, they shall be submitted to the same laws and usages to which the private individuals of their nation are submitted, in the same place. The Consuls, Vice-Consuls, and Commercial Agents shall have the right, as such, to sit as judges and arbitrators in such dififerences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country, or the said Consuls, Vice-Consuls, or Commercial Agents should require their assistance to cause their decisions to be carried into efifect or supported. It is, however, understood, that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country. 28 THE TREATIES OF 1785, 1799 AND 1828 Article XI The said Consuls, Vice-Consuls, and Commercial Agents are author- ised to require the assistance of the local authorities, for the search,- arrest, and imprisonment of the deserters from the ships of war and merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges, and officers, and shall in writing demand said deserters, proving, by the exhibition of the registers of the vessels, the rolls of the crews, or by other official documents, that such individuals formed part of the crews ; and, on this reclamation being thus substantiated, the surrender shall not be refused. Such deserters, when arrested, shall be placed at the disposal of the said Consuls, Vice-Consuls, or Commercial Agents, and may be confined in the public prisons, at the request and cost of those who shall claim them, in order to be sent to the vessels to which they belonged, or to others of the same country. But if not sent back within three months from the day of their arrest, they shall be set at liberty, and shall not be again arrested for the same cause. However, if the deserter should be found to have committed any crime or offence, his surrender may be delayed until the tribunal before which his case shall be depending ••hall have pronounced its sentence, and such sentence shall have been carried into effect. Article XII The twelfth article of the treaty of amity and commerce, concluded between the parties in 178S, and the articles from the thirteenth to the twenty-fourth, inclusive, of that which was concluded at Berlin in 1799, with the exception of the last paragraph in the nineteenth article, relating to treaties with Great Britain, are hereby revived with the same force and virtue as if they made part of the context of the present treaty, it being, however, understood that the stipulations contained in the articles thus revived shall be always considered as in no manner affecting the treaties or conventions concluded by either party with other Powers, during the interval between the expiration of the said treaty of 1799, and the commencement of the operation of the present treaty. The parties being still desirous, in conformity with their intention declared in the twelfth article of the said treaty of 1799, to establish between themselves, or in concert with other maritime Powers, further provisions to ensure just protection and freedom to neutral navigation BETWEEN THE UNITED STATES AND PRUSSIA 29 and commerce, and which may, at the same time, advance the cause of civilization and humanity, engage again to treat on this subject at some future and convenient period. Article XIII Considering the remoteness of the respective countries of the two high contracting parties, and the uncertainty resulting therefrom, with respect to the various events which may take place, it is agreed that a merchant vessel belonging to either of them, which may be bound to a port supposed at the time of its departure to be blockaded, shall not, however, be, captured or condemned for having attempted a first time to enter said port, unless it can be proved that said vessel could and ought to have learnt, during its voyage, that the blockade of the place in question still continued. But all vessels which, after having been warned off once shall, during the same voyage, attempt a second time to enter the same blockaded port, during the continuance of the said blockade, shall then subject themselves to be detained and condemned. Article XIV The citizens or subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testa- ment, donation, or otherwise ; and their representatives, being citizens or subjects of the other party, shall succeed to their said personal goods, whether by testament or ab intestate, and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native, in like case, until the owner may take measures for receiving them. And if question should arise among several claimants to which of them said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where, on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation and exempt 30 THE TREATIES OF 1785, 1799 AND 1828 from all duties of detraction, on the part of the Government of the respective States. But this article shall not derogate in any manner from the force of the laws already published, or hereafter to be pub- Hshed by His Majesty the King of Prussia, to prevent the emigration of his subjects. Article XV The present treaty shall continue in force for twelve years, counting from the day of the exchange of the ratifications ; and if twelve months before the expiration of that period, neither of the high contracting parties shall have announced, by an official notification to the other, its intention to arrest the operation of said treaty, it shall remain binding for one year beyond that time, and so on until the expiration of the twelve months, which will follow a similar notification, whatever the time at which it may take place. Article XVI This treaty shall be approved and ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by His Majesty the King of Prussia, and the ratifi- cations shall be exchanged in the city of Washington, within nine months from the date of the signature hereof, or sooner if possible. In faith whereof the respective Plenipotentiaries have signed the above articles, both in the French and English languages, and they have thereto affixed their seals ; declaring, nevertheless, that the signing in both languages shall not be brought into precedent, nor in any way operate to the prejudice of either party. Done in triplicate at the city of Washington on the first day of May, in the year of our Lord one thousand eight hundred and twenty-eight, and the fifty-second of the Independence of the United , States of America. [Seal.] H. Clay. [Seal.] LuDwiG Niederstetter. Opinions of the Attorneys General of the United States. CASE OF DESERTERS FROM THE PRUSSIAN FRIGATE "NIOBE"^ The provisions of the treaty of May 1, 1828, between the United States and Prussia, for the arrest and imprisonnient of deserters from public ships and merchant vessels of the respective countries, appHes to pubhc vessels sailing under the flag of the North German Union and deserters from such vessels. Attorney General's Office, August ip, 1868. Sir : I have considered the opinion of the examiner of claims in your department, transmitted to me under cover of your letter of the 20th ultimo, upon the question, how far the treaty of 1828, between the United States and Prussia, on the subject of the arrest and imprison- ment by the local authorities of each country of deserters from the ships of war and merchant vessels of the other, is obligatory upon the United States in respect to deserters from the public and private vessels sailing under the flag of the North German Union. The result of the victory of Sadowa and the negotiations of Nichols- burg was the territorial enlargement of Prussia, by the annexation of Hesse Cassel, Nassau, Hanover, Flolstein, and Frankfort, and the foundation of a confederation or union between Prussia, thus enlarged in territory and population, and the North German States, under a constitution of government which gave the king of Prussia the presi- dency of the union, with pHDwer to declare war and conclude peace, make treaties with foreign States, accredit ministers and receive them, like- wise the command, in war and in peace, of the entire army and navy of the union, with power, whenever the public safety is threatened, to declare martial law in any part of the union. Prussia has a treaty of commerce and navigation with the United States, dated May 1, 1828, which provides, that the consuls of the respective governments "are authorized to require the assistance of the local authorities for the search, arrest, and imprisonment of the deserters from the ships of war and merchant vessels of their country." In April last application was made, under this provision of the treaty 112 Op. Atty. Gen. 32 THE TREATIES OF 1785, 1799 AND 1828 with Prussia, by the consul general of the North German Union in New York, to a United States commissioner, for a warrant for the arrest of eleven deserters from a public armed vessel, sailing under the flag of the union,*which is styled by the minister of Prussia near this Goveriunent as "His majesty's frigate Niobe." The application of the consul general was refused by the commissioner, upon the gen- eral ground that the treaty stipulation referred to did not apply to vessels belonging to the North German Union. Baron Gerolt, the diplomatic representative here of the North German Union, protests against the refusal of the commissioner to issue a warrant for the arrrest of these deserters; and hence the question is presented as to the validity of the objection urged by the commissioner to the right of the consular representative of the union to claim, on behalf of that government, in respect to deserters from one of its public armed vessels, the benefits of the treaty of 1828. The examiner of claims, in the opinion you have transmitted to me, has discussed not only this ques- tion, which is practically the only one that has been raised, so far as I am informed, by any events that have actually transpired calling for a consideration of our treaty relations with the States of the North German Union, but also the larger question as to the effect of the chang-e in the political status and relations of the States consolidated and confederated with Prussia, upon the stipulations in our treaties of commerce and navigation with Prussia and those other States, in respect to the seamen deserting from their merchant vessels now sailing under a common national flag. I fully concur in the conclusion of the law officer of your department, that the commissioner at New York erred in refusing to issue a warrant for the arrest of the deserting seamen of the frigate "Niobe," but I will forbear at this time, with your permission, from giving an official opinion on the more doubtful . and difficult questions which are discussed in the papers from your department now before me. It seems to me that a better occasion, perhaps, would be afforded for such a discussion when a case prac- tically shall arise calling for the communication of the views of the Executive in regard to our treaties with the States of the Nor;th German Union to those judicial functionaries who, under our system of govern- ment, are intrusted with the due fulfillment and execution of those treaties on the part of the United States, in respect to the subjects- matter particularly discussed by the examiner of claims. In regard to naval vessels of the North German Union, I am clearly of opinion that they are the ships of war of Prussia, within the BETWEEN THE UNITED STATES AND PRUSSIA 33 meaning of the treaty of 1828, and that deserters therefrom may be arrested by the proper local authorities of the United States, on the application of the proper consular officer of the union, pursuant to that treaty. I have referred incidentally to those provisions of the constitution of the union, which declare as follows : The presidency of the Union belongs to the crown of Prussia. The crown of Prussia is therefore entitled to represent the union as a nation, and to declare war and conclude peace in the name of the union, to form alliances and make other treaties with foreign States, accredit ministers and receive them. The aggregate land forces of the union shall form a single army, which, in war and peace, is placed under the command of his majesty the king of Prussia, as commander-in-chief of the union. The entire navy of the unipn is under the command of Prussia. Its organization belongs to the king of Prussia, who appoints its officers and officials, who take the oath of allegiance to him. The construction and effect given by the examiner of claims to these provisions of the constitution of the German Union seem to be well supported by the course of reasoning pursued in his opinion, and I content myself at present with an expression of satisfaction with his view as applied to the case to which your attention has been directed by Baron Gerolt. I would not be understood as entertaining any objection to the recom- mendation which the law officer of your department has deemed neces- sary to make looking to a review of our treaties with the States of the North German Union. The relations of the States of North Ger- many to one another and to the United States have been so considerably modified by the confederation of 1867, that many perplexing questions of reciprocal rights and obligations are likely to arise under those various treaties, and those questions it may be deemed the part of good statesmanship to avoid, by new treaties adapted to the present condi- tion of the North German States. I desire to remark, in conclusion, that under our system stipulations for the apprehension, within our jurisdiction, of deserters from foreign vessels, are executed by officers of the judicial department of the Gov- ernment, in virtue of special authority conferred by acts of Congress. The questions arising upon the interpretation and effect of such treaties must, therefore, be peculiarly and primarily questions of judicial cog- nizance and consideration. The act of March 2, 1829, authorizes any court, judge, justice, or other magistrate, having competent power, to 34 THE TREATIES OF 1785, 1799 AND 1828 issue warrants for the arrest, for examination, of seamen desertmg from the vessels of any foreign governments with whom we have treaties for the restoration of deserting seamen, upon the appHcation of the consular officers of such governments, with authority to deliver up such seamen to such consular officers. The subsequent act of Feb- ruary 24, 1855, confers upon commissioners of the circuit courts oif the United States similar authority. The officers named in these stat- utes are not subject to the control or direction of the executive depart- ment of the Government. Applications for the apprehension of deserting seamen are made to them directly by the consuls of foreign governments, and it may well occur that such applications are disposed of summarily, and before any opportunity can arise for intervention by the diplomatic represen- tative of the foreign government, or the political department of our own Government. It may be of the highest consequence, that in a case involving the construction of such a treaty, full opportunity should be afforded both this and the foreign government for the presentation of their views upon the subject to the judicial functionary the exercise of whose jurisdiction has been invoked in the particular case. I appre- hend that the learned commissioner, who refused to issue his warrant in the case of the seamen of the "Niobe," would have taken a different view of the treaty in question if his attention had been particularly called to those provisions of the constitution of the North German Union which I have referred to. It may be proper, in case you agree with the view I have taken of that treaty in respect to public armed vessels under the flag of the North German Union, to make the district attorney of the United States at New York acquainted with your opinion, and to give such instructions to that officer as will enable him to make proper repre- sentation of that opinion to the commissioner or other judicial func- tionary in any future case of like character, and to advise your depart- ment of the occurrence of other cases arising under our treaties with the States of the North German Union that may call for renewed con- sideration of the subject by your department. I am, sir, very respectfully, Your obedient servant, Wm. M. Evarts. Hon. Wm. H. Seward, Secretary of State. BETWEEN THE UNITED STATES AND PRUSSIA 35 TONNAGE DUTY^ The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned in the act of June 26, 1884, chapter 121, and enteredl in our ports, is purely geographical in character, inuring to_the advantage of any vessel of any power that may choose to transport between this country and any port embraced by the fourteenth section of that act. Department of Justice, September ig, 188^. Sir: Your communication of the 8th September, instant, with the inclosures therein referred to, has received my deliberate consideration, and I have the honor to submit, in reply, that I agree with you entirely in the interpretation you place on the fourteenth section of the act of Congress of the 26th June, 1884, entitled "An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade, and for other purposes," and in your conclusion that the claims set up by the several powers mentioned by you are not founded. The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned in the act and entered in our ports is, I think, purely geographical in character, inuring to the advantage of any vessel of cmy power that may choose to fetch and carry between this country and any port embraced by the fourteenth section of the act. I see no warrant, therefore, to claim that there is anything in "the most favored nation" clause of the treaty between this country and the powers mentioned that entitles them to have the privileges of the four- teenth section extended to their vessels sailing to this country from ports outside the limitation of the act. Your able and comprehensive discussion of the subject renders it quite unnecessary for me to treat it at Jarge. I have the honor to be, your most obedient servant, W. A. Maury, Acting Attorney-General. The Secretary of State. 118 Op. Atty. Gen. 36 THE TREATIES OF 1785, 1799 AND 1828 Annex Correspondence With the Legation of Germany in Washington^ No. 10 Mr. von Alvenslehen to Mr. Bayard [Translation] Imperial German Legation, Washington, August 3, 1885 (Received August 5). The undersigned, imperial German ambassador extraordinary and minister plenipotentiary, has, in accordance with the orders he has received, the honor to make the following very respectful communi- cation to Hon. Thomas F. Bayard, Secretary of State of the United States. By a law of June 26, 1884 (an act to remove certain burdens on the American merchant marine and encourage the American foreign carry- ing trade, and for other purposes), section 14 (tonnage tax), it has been provided that vessels which sail from a port in North or Central America, in the West Indian Islands, the Bahama, Bermuda, and Sand- wich Islands, to a port of the United States, shall pay in it, in place of the previous tonnage tax of 30 cents per ton a year, only 3 cents per ton, and not more than 15 cents a year, whilst vessels from other foreign ports have to bear a tax of 6 cents. This lowering of the tax to 3 cents has been granted to the favored countries — Canada, New- foundland, the Bahamas, Bermuda, and West Indian Islands, Mexico, and Central America, including Panama and Aspinwall — uncondition- ally and without regard to the taxes, however relatively high, these countries on their side levy on American ships. Article IX of the Prussian-American treaty of the 1st of May, 1828, which has been lately, in the correspondence between the cabinets of Berlin and Washington concerning the petroleum railroad rates as well as because of the Spanish-American treaty concerning the trade of Cuba and Puerto Rico, successively asserted by both Governments to be valid for all Germany, runs as follows: If either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yielding the same compensa- tion, when the grant is conditional. -^Foreign Relations, 1888, part 2, pp. 1872-1878. Note: The correspondence subsequent to the date of the Attorney General's opinion is also printed in order to complete the diplomatic side of the con- troversy. BETWEEN THE UNITED STATES AND PRUSSIA 37 The treaties which the United States in their time have concluded with the Hanse cities, Oldenburg and Mecklenburg, contain similar provisions. In accordance with the purport of these, Germany has an immediate claim, and without making any concession in return, to par- ticipate in the enjoyment of the tonnage tax abatement to 3 cents per ton, which has been unconditionally conceded. The undersigned is, in accordance with the view of the Imperial Government, above set forth, directed to claim from the Government of the United States for German vessels the abatement of the tonnage tax to 3 cents per ton, and to propose, at the same time, the repayment of the tonnage tax which at the rate of 6 cents per ton has been over- paid since the law of the 26th of June, 1884, went into efiEect. While the undersigned reserves for himself the right to make in due time proper proposals in reference to the abatement provided over and above this in the law of, the 26th June of last year, dependent on cer- tain conditions, and which (abatement) may in the future even exceed that of 3 cents per ton, according to the result of proper inquiries concerning the tonnage dues and other taxes, hereafter to be levied in German harbors, he has the honor to request very respectfully that the Secretary of State will kindly take the proper course, so that Ger- man shipping may as soon as possible participate in the unconditional favor, to which it is entitled, of an abatement of the tonnage tax to 3 cents. The undersigned has the honor to await, very respectfully, your kind answer in reference to this matter, and avails himself, etc. H. v- Alvensleben. No. 11 Mr. Bayard to Mr. von Alvensleben Department of State, Washington, November /, 1885. Sir: I had the honor to receive in due season your note of August 3 last, touching the application of the provisions of the fourteenth sec- tion of the shipping act, approved June 26, 1884, in respect of the collection of tonnage tax to vessels of Germany coming from ports of that country to ports of the United States, under the most favored nation clause of the existing treaty of 1828 between the United States and Germany. The importance of the questions involved in the claim of the Ger- man Government and in like claims preferred by other governments has led to the submission of the entire subject to the judgment of the Attorney-General. The conclusions of the Department of Justice, after a careful exam- ination of the premises, are that — 38 THE TREATIES OF 1785, 1799 AND 1828 The discrimination as to tonnag^e duty in favor of vessels sailing from the regions mentioned in the act, and entered into our ports is, I think, purely geograpjiical in character, inuring to the ad- vantage of any vessel of any power that may choose to fetch and carry between this country and any port embraced by the four- teenth section of the act. I see no warrant, therefore, to claim that there is anything in "the most favored nation clause" of the treaty between this country and the powers mentioned that entitles them to have the privileges of the fourteenth section extended to their vessels sailing to this country from ports outside of the limitation of the act. These conclusions are accepted by the President, and I have, accord- ingly, the honor to communicate them to you, as fully covering the points presented in your note of August 3 last. Accept, etc. T. F. Bayard. No. 12 Count Lcyden to Mr. Bayard [Translation] Imperial German Legation, Washington, November ij, i88j (Received November 19). Mr. Secretary of State : I have the honor most respectfully to acknowledge the receipt of your polite note of the 7th instant, whereby you inform me that the Department of Justice of the United States has decided in the matter of the application of the provisions of section 14 of the act relative to navigation of June 26, 1884, to German vessels, that the reduction of tonnage duties which is provided for a specified region is of a purely geographical character, and that the most favored nation clause can consequently have no application in this case. I have the honor, at the same time, to inform you that I have brought the contents of your aforesaid note to the notice of the Imperial Gov- ernment. Accept, etc., Count Leyden. No. 13 Mr. z'on Alvensleben to Mr. Bayard [Translation] Imperial German Legation, Washington, February i6, i886 (Received February 18). Mr. Secretary of State: The Imperial Government has seen by your note of November 7, BETWEEN THE UNITED STATES AND PRUSSIA 39 1885, relative to the enforcement of the provisions of section 14 of the navigation act of June 26, 1884, that the United States Govern- ment rejects the appHcation (made on the basis of the most favored- nation treaties now existing with Prussia and the German States) for equal rights with the States of North and Central America and the West Iridies. This rejection is based on the ground that that exemp- tion which is granted to all vessels of all powers sailing between the countries in question and the United States is purely geographical in its character, and can not, therefore, be claimed by other States in view of the most favored-nation clause. I am instructed, and I have the honor most respectfully to reply to this, that such a line of argument is a most unusual one, and is calcu- lated to render the most favored-nation clause wholly illusory. On the same ground, it would be quite possible to justify, for instance, a privilege granted exclusively to the South American States, then one granted also to certain of the nearer European nations, so that finally, under certain circumstances, always on the pretext that the measure was one of a purely geographical character, Germany alone, among all the nations that maintain commercial relations with America, notwith- standing the most favored-nation right granted to that country by treaty, might be excluded from the benefits of the act. It can not be doubted, it is true, that on groun4s of purely local character certain treaty stipulations between two powers, or certain advantages autonomically granted, may be claimed of third States not upon the ground of a most favored-nation clause. Among these are included facilities in reciprocal trade on the border, between States whose territories adjoin each other. It is, however, not to be doubted that the international practice is that such facilities, not coming within the scope of a most favored-nation clause, are not admissible save within very restricted zones. In several international treaties these zones are limited to a distance of ten kilometers from the frontier. From this point of view, therefore, the explanation given by the United States Government of section 14 of the shipping act can not be justified. This law grants definite advantages to entire countries, among others to those situated at a great distance from the United States ; these advantages are, beyond a doubt, equivalent to facilities granted to the trade and navigation of those countries, even if they do, under certain circumstances, inure to the benefit of individual vessels of foreign nations. It scarcely need be insisted upon that these advantages favor the entire commerce of the countries specially designated in the act, since they are now able to ship their goods to the United States on terms that have been artificially rendered more favorable than those on which other countries not thus favored are able to ship theirs. The treaty* existing between Prussia and the United States expressly stipulates that — ♦Treaty of 1828, Art. [X. 40 THE TREATIES OF 178S, 1799 AND 1828 If either party shall hereafter grant to any other nation any particular favor in navigation or commerce it shall immediately become common to the other party, freely where it is freely granted to such other nation, or on yielding the same compensation when the grant is conditional. Such a compensation, so far as the reduction of the tonnage tax to 3 cents is concerned, has not been stipulated for by the United States in the aforesaid shipping act. Germany is, therefore, ipso facto, entitled to the reduction of the tax in favor of vessels sailing from Germany to the United States, especially since, according to the constitution of the Empire, no tonnage tax is collected in Germany from foreign ves- sels; that is to say, no tonnage tax of the character of American ton- nage taxes in the sense of section 8, paragraph 1, article 1, of the American Constitution, viz, those designed to pay the debts of the Government and to pay the expenses of the common defense and the general welfare. As you remark in your esteemed note, Mr. Secretary of State, you have based your decision on an opinion of the Attorney-General. In opposition to this view, it will be seen by the printed decisions of the Secretary of Treasury, that the latter, in an opinion on this subject addressed to the. Department of State under date of May 11, 1885, expressed the opinion that vessels sailing frotn Portugal to the United States are, indeed, entitled to the privileges granted by section 14 of the shipping act, on the ground of the most favored-nation treaty ex- isting between the two nations. This opinion harmonizes in the main with the view entertained by the Imperial Government. The Imperial Government entertains the hope, in view of the fore- going considerations, that the United States Government on recon- sidering this matter will not maintain the position taken in the note of November 7, 1885, and that it will grant to German vessels sailing between the two countries the same privileges that have long been granted without compensation by the German Empire to American vessels. In having the honor, therefore, hereby to reiterate the application made in my note of August 3, 1885, for the reduction of the tonnage tax to 3 cents in favor of vessels engaged in trade between Germany and the United States, I hope that the decision of the United States Government in this matter will be kindly communicated to me. Accept, etc., H. V. Alvensleben. BETWEEN THE UNITED STATES AND PRUSSIA 41 No. 14 Mr. Bayard to Mr. von Alvensleben Department of State, Washington, March 4, 1886. Sir: With reference to previous correspondence on the subject, I have the honor to acknowledge the receipt of your note of the 15th ultimo, relative to the question as to the applicability of the most favored nation clauses of the treaties of Prussia and other German states and the United States to the provisions of section 14 of the act of Congress of June 26, 1884. In reply I beg to inform you that your note will have consideration, it being sufficient for the present to observe that Germany admits that neighborhood and propinquity justify a special treatment of inter- course which may not be extended to other countries under the favored nation clause in treaties with them, and only appears to question the distance within which the rule of neighborhood is to operate. Accept sir, etc., T. F. Bayard. No. 15 Mr. von Alvensleben to Mr. Bayard [Translation] Imperial German Legation, Washington, August i, 1886 (Received August 2). Mr. Secretary of State : I had the honor duly to receive your note of the 4th of March last, whereby you informed me that my observations concerning the applicability of the most favored nation clause to section 14 of the act of Congress of June 26, 1884, would be taken into consideration, and in which, for the time being, you confined yourself, by way of reply, to one remark. In the mean time an act of Congress entitled "An act to abolish certain fees for official services to American vessels, and to amend the laws relating to shipping commissioners, seamen, and owners of vessels, and for other purposes," has been approved by the President of the United States under date of June 19, 1886 (Public— No. 8.5), and has thereby become a law. I have brought this act to the notice of the Imperial Government and have been instructed t© state the view taken by that Government of this latest law and to ask your attention to its incompatibility with the stipulations of the treaty exising be- tween Germany and the United States. This act extends, in a measure, the power conferred upon the Presi- 42 THE TREATIES OF 178S, 1799 AND 1828 dent by section 14 of the act of June 26, 1884, to diminish tonnage dues in certain cases. According to the act of 1884 the President was authorized, only in the case of vessels coming f rorn the ports of North and Central Amer- ica, the West Indies, the Bahama, Bermuda, and Sandwich Islands, or Newfoundland, and entering ports of the United States, to reduce the duty of 3 cents per ton, which was imposed on such vessels, provided that the said duty exceeded the dues which American vessels were obliged to pay in the aforesaid ports. - A reduction of the duty of 6 cents, to which all vessels coming from other ports were subjected, was not allowable, even on the supposition in question. Vessels from the aforesaid favored ports thus enjoyed a special preference in two ways: In the first place, they paid in all cases a duty of but 3 cents per ton, while vessels from other ports were obliged to pay 6 cents per ton ; even these 3 cents could be remitted, either in whole or in part, provided that it could be shown that the duty paid by American vessels in the ports concerned amounted to less than 3 cents per ton, or that no such duty was levied in said ports. This latter privilege is, according to the new law, no longer to be exclusively enjoyed by vessels from the favored ports. Likewise, vessels from other than the most favored ports may obtain a reduction or return of the duty of 6 cents to be paid by them per ton, provided that in the ports from which they have come American vessels pay less than 6 cents or no tonnage duty at all. The amount of the duty to be remitted is computed according to the amount of the duties levied in the ports of departure. The new law is evidently based upon the idea of reciprocity. If this idea had been consisteritly carried out no objection could be made to it and the Imperial Government would have no further ground of complaint. This, however, is not the case, inasmuch as the new law grants special privileges, as did the old, to vessels from the above- mentioned ports, declaring that they, without any compensation on their part, shall pay but 3 cents per ton, even though a duty in excess of that amount is paid by American vessels in the ports concerned. The number of favored ports is even extended to those of South America bordering on the Caribbean Sea. The Imperial Government has from the outset protested against this one sided privilege, which is in violation of the treaty stipulations of Germany with the United States. Since this privilege is not only not abolished by the new law, but is confirmed and even still further ex- tended, the original attitude assumed by the Imperial Government towards the old law has been in no wise changed by the new act, and the Imperial Government must continue to protest against the viola- tions of its treaty rights while maintaining the arguments contained in my note of February 15, 1886. As long as vessels from the ports of North and Central America pay but one-half the tonnage duty that is BETWEEN THE UNITED STATES AND PRUSSIA 43 levied upon vessels from German ports, without being required to furnish proof that less than 6 cents is exacted from American vessels in their ports, the Imperial Government will be obliged to maintain its claim for similar usage, viz, the exemption from furnishing such proof. As is stated in my note of February 15, 1886, the Imperial Govern- ment is unable to regard as conclusive your principal argument, viz, that the privilege in question is of a purely geographical character, because the effect of this privilege is to benefit, in point of fact, the entire trade and navigation of those countries in which the ports in question are situated. No paramount importance can be attached (as is done by the United States Government) to the mere form in which this privilege is granted to particular countries. I am therefore instructed, on the ground of the treaty right per- taining to the Imperial Government, to reiterate its previous claim that German ports shall be placed on a footing precisely similar to that of North and Central American ports, etc., and most respectfully to request you, Mr. Secretary of State, to favor me with the further reply which, in your note of March 4, you gave me to understand that I might expect from you. Accept, etc., H. V. Alvensleben. DurrY— IMPORTED SALT— TREATY WITH PRUSSIA^ The treaty of May 1, 1828, between the United States and the Kingdom of Prussia, is to be taken as operative as respects so much of the German, Empire as constitutes the Kingdom of Prussia. Semble, that it is not effective as regards the rest of that Empire. The "most favored nation clause'' in that treaty is not violated by paragraph 608 of the tariff act of August 27, 1894, laying a discriminating duty on salt imported from a country which imposes a duty on salt exported from the United States. In case of conflict between a treaty and a subsequent statute, the latter governs. The laws of a foreign country are not known to the Attorney-General, but are facts to be proved by competent evidence. As to when the discriminating duty aforesaid applies to a country which im,- poses a duty on salt exported from the United States but lays a counter- vailing excise tax on domestic salt. Quaere. Department of Justice, November ij, 1894. Sir : I have the honor to acknowledge your communication of October 27, asking my official opinion upon the question whether salt ^21 Op. Atty. Gen. 80. 44 THE TREATIES OF 178S, 1799 AND 1828 imported from the Empire of Germany is dutiable under paragraph 608 of the tariff act of August 27, 1894. That paragraph, which puts salt in general on the free list, contains the following proviso : Provided, That if salt is imported from any country whether independent or a dependency which imposes a duty upon salt ex- ported from the United States, then there shall be levied, paid, and collected upon such salt the rate of duty existing prior to the passage of this act. As Germany imposes a duty upon salt exported from the United States, German salt is apparently subject to the proviso just quoted. The German ambassador, however, claims it is entitled to come into the United States free on two grounds. One is the "most favored nation clause," so called, which is em- bodied in the following provision^ of the treaty of May 1, 1828, be- tween the United States and Prussia : Article V No higher or other duties shall be imposed on the importation into the United States of any article the produce or manufacture of Prussia, and no higher or other duties shall be imposed on the importation into the Kingdom of Prussia of any article the pro- duce or manufacture of the United States than are or shall be payable on the like article being the produce or manufacture of any other foreign country. * * * Article IX If either party shall hereafter grant to any other nation any particular favor in navigation or commerce it shall immediately become common to the other party freely, where it is freely granted to such other nation, or on yielding the same compensa- tion, when the grant is conditional. It should be noted that while this treaty is to be taken as operative as respects so much of the German Empire as constitutes the Kingdom of Prussia no facts or considerations with which I have been made acquainted justify the assumption that it is to be taken as effective as regards other portions of the Empire. Neither am I informed whether the German salt, for which free admission into this country is demanded, is a product or manufacture of Prussia proper, or of some other part or parts of the German Empire. If it be assumed, however, for present purposes, that the treaty of 1828 binds the United States as regards all the constituent parts of BETWEEN THE UNITED STATES AND PRUSSIA 45 the German Empire, the claim of the German ambassador, founded upon the "most favored nation clause," must be pronounced untenable for at least two conclusive reasons. In the first place, the "most favored nation clauses" of our treaties with foreign powers have from the foundation of our Government been invariably construed both as not forbidding any internal regula- tions necessary for the protection of our home industries, and as per- mitting commercial concessions to a country which are not gratuitous, but are in return for equivalent concessions, and to which no other country is entitled except upon rendering the same equivalents. Thus, Mr. Jefferson, when Secretary of State in 1792, said of treaties ex- changing the rights of the most favored nation that "they leave each party free to make what internal regulations they please, and to give what preference they find expedient to native merchants, vessels, and productions." In 1817 Mr. John Quincy Adams, acting in the same official capacity, took the ground that the "most favored nation clause only covered gratuitous favors and did not touch concessions for equivalents expressed or implied." Mr. Clay, Mr. Livingston, Mr. Evarts, and Mr. Bayard, when at the head of the Department of State, have each given official expression to the same view. It has also received the sanction of the Supreme Court in more than one well- considered decision, while in Bwrtram v. Robertson (122 U. S. 116), Mr. Justice Field, speaking for the whole court, expounded the stipu- lations of the "most favored nation clause" in this language (p. 120) : They were pledges of the two contracting parties, the United States and the King of Denmark, to each other, that, in the im- position of duties on goods imported into one of the countries which were the produce or manufacture of the other, there should be no discrimination against them in favor of goods of like char- acter imported from any other country. They imposed an obli- gation upon both countries to avoid hostile legislation in that respect. This interpretation of the "most favored nation clause," so clearly established as a doctrine of American law, is believed to accord with the interpretation put upon the clause by foreign powers — certainly by Germany and Great Britain. Thus, as the clause permits any internal regulations that a country may find necessary to give a preference to "native merchants, vessels, and productions," the representatives of both Great Britain and Germany expressly declared, at the Interna- tional Sugar Conference of 1888, that the export sugar bounty of one 46 THE TREATIES OF 1785, 1799 AND 1828 country might be counteracted by the import sugar duty of another without causing any discrimination which' could be deemed a viola- tion of the "most favored nation clause." So both Germany and Great Britain acquiesced in the position of the United States, that our treaty with Hawaii did not entitle those nations to equal privileges in regard to imports with those thus obtained by the United States, the privi- leges granted to the United States being in consideration of conces- sions by the United States which Germany and Great Britain not only did not offer to make, but, in the nature of things, could not make. If these established principles be applied to the case in hand but one result seems to be possible. The form which the provisions of our recent tariff act relating to salt may have assumed is quite immaterial. It enacts, in substance and effect, that any country admitting American salt free shall have its own salt admitted free here, while any country putting a. duty upon American salt shall have its salt dutiable here under the preexisting statute. In other words, the United States con- cedes "free salt" to any nation which concedes "free salt" to the United States. Germany, of course, is entitled to that concession upon return- ing the same equivalent. But otherwise she is not so entitled, and there is nothing in the "most favored nation clause" which compels the United States to discriminate against otheV nations and in favor of Germany by granting gratuitously to the latter privileges which it grants to the former only upon the payment of a stipulated price. In the next place, even if the provisions of our recent tariif act under consideration could be deemed to contravene the "most-favored- nation clause" of the treaty with Germany— as they can not be for the reasons stated — the result will be the same. The tariff act is a statute later than the treaty and, so far as inconsistent with it, is con- trolling. The principle is too well settled to admit of discussion, and if any relief from its operations is desirable it can be obtained only through proper modifying legislation by Congress. While the first proposition of the German ambassador proceeds upon the basis that Germany does levy an import duty on American salt, his second proposition is that in reality it does not do so. The duty, it is said, should be regarded as in fact an internal excise tax, since a tax equivalent to the duty is levied upon all salt in the country when- ever and however it appears, and is the same upon salt produced in Germany as upon salt coming from the United States. It is matter of convenience merely that the tax upon American salt is collected BETWEEN THE UNITED STATES AND PRUSSIA 47 immediately upon its arrival in port. In short, the claim is that there is no discrimination against American salt, which is the evil our statute aims to prevent ; that American salt and German salt are in reality treated on a footing of entire equality. The validity of this proposition I do not think I am in a position to judge of, for want of sufiflcient data. The laws of Germany I do not and can not be expected to know, and, like other foreign laws, are facts to be proved by competent evidence. The statement respecting them made by the German ambassador in a communication to the Secretary of State (copy of which you inclose) are undoubtedly cor- rect, but they leave me in doubt upon what seems to me a vital point, viz, whether the internal excise tax on salt referred to is imperial in character — that is, is levied by and belongs to the Imperial Govern- ment — or is local, and is levied by and belongs to one or more con- stituent states of the Empire. If it is of the latter character, it prob- ably can not be considered in relation to the matter in hand any more than a like domestic tax of any one or more of the States of the United States could be considered in the same relation. If, however, it could be considered under any circumstances, then it is obviously material to know whether such tax is levied by all of the constituent states of the Empire, without exception, and actually or necessarily at the same rate. As at present advised, therefore, salt imported from the Empire of Germany is, in my judgment, legally dutiable under the statute above quoted. Respectfully, yours, Richard Olney The Secretary of the Treasury. Decisions of Federal Courts THE BARK ELWINE KREPLIN ^ Seamen's Wages. — Desertion. — Imprisonment on Shore. — Consul. — Treaty With Prussia. — Jurisdiction. — Parties. — Practice. — Minor. — E.vecutive Recognition . A Prussian bark, with a crew whose term of service had not expired, was laid up at Staten Island, on account' of the war between Prussia and France. A difficulty arose between the captain and the crew, and they demanded leave to go and see the consul. This the captain refused to allow, but agreed that one of them, named L., might go. They insisted that they would all go, and the captain went ashore to get the aid of the police. After he had, gone, the crew informed the mate that they were going to see the consul, and went ashore, without serious objection from the mate. The captain, returning, was told by the mate that the men had gone ashore, and high words passed between them, which resulted in the mate's saying that he would go too, and he went ashore, without objection from the captain. The captain, with a police officer, overtook the crew;, and all hands went before a police justice, where the captain made a complaint against the mate and the crew for mutiny and desertion. The justice informed the captain that he had no jurisdiction, but he directed a policeman to take the men into custody, and they were locked up. The captain then went before the Prussian consul, and made complaint, requesting that the crew be pun- ished, and that they be kept in custody preliminarily, and stating that he could not receive the mate on board again. The consul then issued a requisi- tion to a commissioner of the Circuit Court of the United States, stating that the men had deserted, and asking for a warrant to arrest the men, and, "if said charge be true," that they be detain,ed until there should be an opportunity to send them back. The requisition the captain took to the police justice, who thereupon, without examination, committed all the men to the county jail, where they lay for ten days. On the direction of the consul, they were then released, and came to the consul's office, where they were advised to go to the ship, and ask the captain for their wages. Some of them went, and the captain agreed to meet the crew at the consul's office next day. He came there, but the parties failed to meet each other, and thereafter the seamen executed assignments of their wages to the mate. 18 Fed. Cases, 592 (Case 4,427) ; 4 Benedict, 413. Note. — This case was reversed by the Circuit Court, on the ground that this Court was prohibited, under the treaty with Prussia, from exercising jurisdiction. An application was made to the Supreme Court for a mandamus, to compel the Circuit Court to pass upon the merits, but was denied. Fed. Cases (No. 4426), vol. 8; 588. 50 THE TREATIES OF 1785, 1799 AND 1828 but without consideration, and he filed this libel against the vessel, to recover the wages of all. The captain was part owner of the ship. He defended the suit, and claimed that the men had forfeited their wages by desertion ; that they had agreed in the articles not to bring the suit; and that the Court, under the treaty between the United States and Prussia, had no jurisdiction. Held, That, as to the mate and L., there could be no pretence of desertion, for they le"f t the vessel with the captain's consent ; That, as the other seamen only left the ship, without taking their clothes, to' go and see the consul, the charge of desertion was not made out against them; That the conduct of the captain, in imprisoning the men, was unlawful, and sufficient to dissolve the contract of the mariners ; That no law permits the imprisonment of deserters in our jails, except on proof of the facts before a competent tribunal ; That the men were not prevented from bringing this suit by the clause in the article referring to that provision of the German mercantile law, that "the seaman is not allowed to sue the master in a foreign port,'' because this is not a suit against the master, and the master having, by his unlawful conduct, absolved the men from their agreement, had absolved them from this portion of it with the rest; That the clause in the treaty between the United States and Prussia, that "the consuls, vice-consuls, and commercial agents shall have the right, as such to act as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committted to their charge, without the interference of the local authori- ties, unless, &c., &c.," was not sufficient to oust this Court of its jurisdiction over this controversy. Whether this clause has any application to suits in rem — qucsre. That the Prussian consul had not acted in this matter as judge or arbitrator, which words must be taken in their ordinary sense, implying investigation of facts upon evidence, the exercise of judgment as to their effect, and a determination thereon ; That the consul is not a Court, and neither his record nor his testimony is conclusive on this Court ; That, as the consul, though really appointed as consul of the North German Union, was recognized by the Executive Department as consul of Prussia by virtue of such appointment, the action of the Executive was binding on the Court, and he must be held to be the Prussian consul ; That the seamen might file a petition to be now made colibellants, and on such petition being filed, and the cancellation of their assignments to the mate, they would be entitled to decrees for their wages. In admiralty, minors are allowed to sue for wages in their own name. Benedict, J. This is a cause of subtraction of wages, instituted by Max Newman, who was the chief mate of the Prussian bark Elwine KrepUn, to recover the sum of $173, being the amount of his wages BETWEEN THE UNITED STATES AND PRUSSIA 51 earned in the capacity of chief mate of that vessel; and also the sum of $1,158, which is the aggregate amount oi the wages of the crew, which he claims to recover as assignee of the seamen. A statement of the facts in proof is necessary to an understanding of the many questions raised. The time of service and rates of wages are not disputed. The libel concedes the term of service for which the men were shipped to have been two years, whiclP has not yet expired. This term of service being admitted in the libel, is to be taken as proved, although it is not entirely clear from the agreement itself that such was its legal effect. In the prosecution of her voyage, the brig arrived in this port, and, war having broken out between Prussia and France, she was compelled to lay up here to wait for peace. She was accordingly laid up at Staten Island, and while there the difficulty arose which gave rise to the present litigation. It appears that on the morning of the 1st of August, 1870, before breakfast, the master undertook to chastise the cabin boy, in the cabin. The boy's cries being heard by tht crew, who were at work on deck, they went in a body into the cabin, and challenged the right of the master to chastise the boy. The master thereupon desisted, and the men returned to their work on deck. The master soon followed, and an altercation ensued between the master and crew, in which various complaints were made, and some vile epithets applied to the master by the mate, who was not in the ca'bin with the men, but in the altercation on deck took part with the crew. During the dispute, the men, in a body, demanded permission to go before the consul with their complaints. Permission was given to one named Lutte, and perhaps to Martens also. The per- mission to Lutte is conceded by the master, but permission to Martens is denied. Upon permission being given to Lutte, the crew cried out, "We will all go." When the dispute ended, the captain went to his breakfast, and after breakfast went ashore, to obtain, as he says, the aid of the police, on account of the njutinous condition of the crew. After he was gone, the crew, having finished cleansing the decks, and eaten their breakfast, dressed and informed the mate, then in com- mand, that they were going to the consul, and went ashore. No obiec- tion was made by the mate, beyond a suggestion that they had betf^r wait till the captain returned. Soon after the men had left, the capt-^i-i returned, but without any police, and was informed by the mate that the crew had gone ashore. Words thereupon passed between the 52 THE TREATIES OF 1785, 1799 AND 1828 captain and mate, which resulted in the mate's saying, "I will go, too," whereupon he also left, without any objection by the master. On leaving the ship, the mate proceeded to the ferry leading to New York city, where the office of the Prussian consul is located. The rest of the crew appear to have followed the carpenter, who went to the police station to enter a complaint against the master for beating the boy, in whom the carpenter, doubtless, took more interest than the others, as he came from the same town in Germany. The master soon appeared at the police station, and shortly after at the ferry house, with a policeman. The mate, at their request, accompanied them to Justice Garret, a police justice of the village of Edgewater. There the captain made a complaint against the whole crew, including the mate, for mutiny and desertion, but was informed by the justice that he was without jurisdiction, and that application must be made to the United States courts. The justice, however, was afterwards induced to direct a policeman to take the men into custody, if he would do so at his own risk. This the policeman did, and the mate and men were then locked up. , The master next proceeded to the consul's office, and there made complaint in writing, of which a protocol was made, describing the occurrence of the morning on board the ship, and stating thkt the men were then in custody on Staten Island, and ending as follows : "I request of the consul-general the punishment of the entire crew, especially of the mate, Newman, who has instigated the complot. Since my life is not safe, I request that the entire crew be kept in custody preliminarily; and, under existing circumstances, I can not again take the mate on board." The consul thereupon issued a requisition, the substance of which has been proved, in the absence of the original. To whom this requi- sition was addressed is not certain. Justice Garret thinks that it was addressed, "To any marshal oir magistrate of the United States;" but it was written on a blank, which was addressed in print, "To the Com- missioner of the Circuit Court of the United States for the District of New York," and it is not shown that the blank address was altered or filled up. This requisition, after referring to the treaty with Prussia stipulating for the return of deserting seamen, and authorizing the consul to require the assistance of the local authorities for the search, arrest and imprisonment of deserters, represented that these seamen, naming them, and including the mate and Lutte, had deserted from BETWEEN THE UNITED STATES AND PRUSSIA 53 this vessel on that day ; tnat the consul made apphcation for a warrant to the marshal ot said district to cause the men to be arrested, and "if said charge be true, that they be detained at the consul s expense until there should be an opportunity to send tnem back. No action was taken by the consul in regard to the master's complaint, except to deliver this requisition to the master, who, instead of presenting it to a (J. S. Commissioner, took it to Justice Garret, the next morning, and thereupon Justice Garret, without examination, committed all the men to the common jail of Richmond County, his commitment stating that it was upon the complaint of the master for desertion, and con- taining no allusion to the consul's requisition. On the 9th of August the master desired a release of some of the men, and the consul appears to have directed a release of them all, but no order for their return to the ship was made by the consul or asked for by the master, nor was the production of the men before the consul directed. On the 11th of August, two policemen took the mate and three of the men from the jail to the consul's office, and were then directed to release them, and the men were advised to go on board and persuade the master to pay them their wages. The next day the remaining four were released from jail, and during the day all the men appeared at the consiil's office. They were again advised to go to the ship and ask the master for their wages, but they had no money to pay their ferriages from New York to Staten Island. By putting all their means together, however, enough was found to pay the ferriage of three. Accordingly, the mate, the carpenter and Lutte went to the ship and saw the master. The mate testifies that. the captain promised to pay him and appointed the next day to meet him at the consul's. The master admits making the appointment, and that he gave the mate his navigation book and entered in it the credits to date, but denies the promise to pay him. As to what actually took place at this interview, the witnesses differ, but the result was an arrangement to meet at the consul's office the next day. This meeting never took place. The men and the master appear to have been at the consul's during that day, but they failed to meet, although the master says that as he came down from the consul's he saw TorriflF and Reischoff, two of the crew, whom he asked to return to the ship, and they laughed at him and said, "No ! Not a bit of it." Subsequently, this action was commenced. Upon these facts it is contended that these seamen are 54 THE TREATIES OF 1785, 1799 AND 1828 not entitled to recover their wages, admitted to have been earned in the service of this vessel, on several grounds. Upon the merits, it is said that the wages have been forfeited by desertion. The charge of desertion against the mate has no foundation. He left the ship openly without objection from the master, without taking any of his clothes, and with a remark, which, under the circumstances, was a notification that he was going to see the consul. He was shortly arrested and cast into prison and there kept during ten days of the extremely hot weather of last August, and then let out without a request or suggestion that he return to the vessel. Indeed, the master had expressly declared that he should not return. It is vain to contend that these facts present any of the features of desertion, so far as the mate is concerned. With regard to Lutte, the case is stilil stronger, for the master concedes that Lutte asked and obtained of him per- mission to go to the consul. He also was in a similar manner im- prisoned as a deserter. With regard to the other seamen the case is simply one of leaving the ship without permission. "It has been uniformly held that it is not desertion, for the seamen to leave the vessel against orders to go before the consul at a foreign port to complain of their treatment." (1 Pars.' Mar. Law, 470, note.) In this case the men did not take their clothes. When the master gave per- mission to Lutte to go to the consul, they announced their intention to go too. When they left they informed the mate, who was then in command (The Union, Bl. & H. 563), that they were going to see the consul. Upon the evidence, I find nothing to Justify the master in sup- posing that the men were not going to the consul, and would not return to the ship at nightfall, and yet they were all at once arrested and cast into prison; and, so far as appears, without- any prior request that they return to the ship. To hold such a leaving of the ship to be desertion is impossible. But it is said that when released from jail they refused to return to duty, and are therefore deserters. ' There is some evidence to this effect, but it is loose, and, upon a consideration of all the evidence, I am satisfied that the master never in fact com- municated to the men either an intention to forfeit their wages or a desire to have them again in his service. As to the mate, he had expressly refused to have him on board. As to Kruise and Reischoff, he had, before the diiificulty, given them to understand that they would lie permitted to leave. He was half owner. His vessel was laid up to BETWEEN THE UNITED STATES AND PRUSSIA 55 await the result of a great war— only the services of watchmen were required on board — and he had engaged two other men for that duty. He had, therefore, no reason to desire the return of the men, and, I am satisfied, did not desire it, although he may have been quite willing to make out a case of desertion, in the hope of saving the very con- siderable sum due the men ; but his action was such as to lead the men to suppose that their leaving the service of the ship was acquiesced in, and such, it appears, was the impression formed by the consul, for he says he told the men he was sure the captain would pay them their wages. I am, therefore, of the opinion that the connection of the men with the ship was severed by mutual consent, and consequently, they are entitled to their wages. But if this be not so, I am of the opinion that the conduct of the master, in imprisoning these men, was unlawful, and sufficient to dis- -solve the contract of the rriariners; and I apply to the case of these foreign seamen in an American port the same rule which our Courts have applied in cases of the imprisonment of American seamen in foreign ports. The rule is stated as follows : "The practice of imprisoning disobedient and refractory seamen in foreign jails is one of doubtful legality. It is certainly to be justified only by a strong case of necessity. It should be used as one of safety, rather than discipline, and never applied as punishment for past mis- conduct." (The Mary, Gilpin, 31-32.) In Jordan v. Williams (1 Curt. C. Cls. 81), it is stated as settled, that it is not one of the ordinary powers of a shipmaster to imprison his men on shore. The imprisonment inflicted on these men was without justification. The only excuse for it is the occurrence on the morning of the 1st of August, above detailed, which was not a very serious matter. The men were undoubtedh' wrong in appearing in the cabin, and calling in question the master's right to punish the boy; for which, perhaps, there is some palliation in the fact that, while the crew doubtless knew that by the Prussian laws corporal punishment of seamen is not per- mitted, they may not have known that, by the same laws, "ship boys are subject to the parental chastisement of the master." The punish- ment of the boy, in this instance, was not cruel, and the men could not complain of some punishment inflicted on them for their appear- ance in the cabin, and their disrespectful language afterwards on deck. But there was nothing alarming in the temper of the crew; there had T-ef-n no difficulty with them before this, and nothing occurred on this 56 THE TREATIES OF 1785, 1799 AND 1828 day which any master of order, judgment and firmness would not have easily dealt with. No weapons were shown, no blows struck, no threats made, except that of reporting to the consul, and, if punishment was thought necessary, it should have been inflicted on board, and not by imprisonment in a foreign jail. Neither does the master stand excused, if it be considered to have been shown that he really thought the men had left the ship, with intent to desert, for his whole conduct was unlawful. No law permits the imprisonment of deserters in our jails, except on proof of the facts before a competent tribunal. The Act of March 2d, 1829, which is the only statute enacted to render effective the provisions of Art. 11 of the treaty with Prussia, requires an application by the consul, with preliminary proofs, before a magistrate having competent juris- diction, and the warrant of such magistrate for the arrest. The seamen can not be surrendered to the authority of the consul, until an examination be had before the magistrate, and the statement that the seaman is a deserter found to be true. And the arrest and detention of the seamen, in such cases, is not for punishment, but simply for safe-keeping until he can be sent back. Here the men were imprisoned, in the first instance, for a day and a night, upon the request of the master, without any of the preliminary proofs required by the statute, and without the interposition of the consul. And when, on the next day, the consul issued the requisition for an examination before a U. S. Commissioner, the master took it to the police justice, where it was used, apparently by way of inducement, for the imprison- ment was then continued for some ten days, upon the complaint of the master, and not by virtue of the requisition. This imprisonment was, in law, the act of the master. He caused it to be done by a magistrate, known to him to be without jurisdiction. Nor can he protect himself by saying that he acted under the direction of the consul. The consul made no requisition upon the police justice, and never requested that officer to imprison the men, and his requisition is not alluded to in the commitment. He did direct somebody to release them, but it is not shown what person, other than the captain and the policeman, he so directed. It is also true that he paid the jail fees to the jailer, but there is evidence showing that his payment was for the account of the master. If it be true, that a master is not responsible for an imprisonment inflicted by competent authorities, under the order of a consul {The BETWEEN THE UNITED STATES AND PRUSSIA 57 Coriolanus, Crabbe's R. 241 ; IVilson v. The Mary, Gilpin, 31 ; Jordan V. Williams, 1 Curt. C. Cls. 82), it is also true that he is responsible for an imprisonment inflicted, at his request, by a poHce justice with- out jurisdiction in the premises {Snow v. Wope, 2 Curt. C. Cls. 304). In every aspect, then, the conduct of the master in respect to these men was unlawful, and, it appears to me, without excuse. Three of the men who have appeared before me, are men of intelligence, and of truthful appearance. The mate appears quite the equal of the mas- ter, and is, in fact, his connection by marriage. The difficulty arose in a port where there was every opportunity fo^r protection, and for lawful investigation, and there was nothing requiring ha.ste. Such an imprisonment, under such circumstances, I consider sufficient, within the principles of the adjudged cases, to dissolve the marines' contract, and sever the connection between the men and the vessel. But it is said that the men contracted not to sue in a foreign coun- try, and, therefore, this action can not be maintained. This position is based upon the words of the ship's articles or muster roll, which declare that "the seamen hire themselves on the above-mentioned vessel in accordance with the legal regulations printed in the book of Navi- gation." The book of Navigation referred to is a book which is furnished to every Prussian seaman, and which contains the name of the holder, with a description of his person, and memorandum of every shipment and every discharge of the holder, signed by the mus- tering authorities. The book contains also a printed appendix, where may be found certain extracts from the German mercantile law, among which extracts is this provision: "The seaman is not allowed to sue the master in a foreign court." Assuming that this provision of law is incorporated into the agreement, by the words used in the articles, and, therefore, to be considered as part of the contract, which is not entirely clear, the first answer is, that the provision, by its express terms, is made to relate to suits against the master, which this is not. Another answer is, that the master having, by his unlawful conduct in violation of his contract, absolved the men from their agreement, has absolved them from the whole of it, and this portion with the rest {Schulenhurg V. Wessels, 2 E. D. Smith, R. 71). In the English courts, a foreign statutory prohibition of this descrip- tion had been considered not enforceable, unless incorporated as part of the contract TMacLachlan on Shipping, 226). In the American courts, it has been held that such a provision in the contract will not 58 THE TREATIES OF 1785, 1799 AND 1828 be enforced, "where the voyage, as respects the seamen, is put an end to" {The St. Oloff, 2 Pet. Ad. 415) ; "where the interests of jus- tice demand it" {Barker v. Kloskyster, Abb. Ad. 408) ; and "where the seamen are left destitute by an improper discharge." {Id. p. 408.) Again, it is said that this is a Prussian vessel, and therefore the court is without jurisdiction in the premises by reason of the treaty between the United States and Prussia, ratified in 1828 (8 Stat, at Large, 382). This position, which has been urged upon my con- sideration with earnestness and ability, has received my careful con- sideration. The provision of the treaty is as follows : "The consuls, vice-consuls and commercial agents shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country, or the said consuls, vice-consuls or commercial agents should require their assist- ance to cause their decisions to be carried into effect or supported. It is, however, understood that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort,, on their return, to the judicial authority of their country." In considering the effect of this treaty in the present case, I remark first, that its language does not precisely cover an action in rem like the present. Such an action is more than a mere difference between the master and the crew. It involves the question of lien upon the ship and her condemnation and sale to pay the same. In the absence of any ex- press words, it is hard to infer that it was intended to confer upon consuls and vice-consuls, the power to direct a condemnation and sale of a ship — a proceeding which brings up, for determination, many questions besides those relating to seamen. Moreover, the statute of August 8, 1846, which was passed to render effective this provision of this treaty, confers upon the Commissioners of the Circuit Court full power, authority and jurisdiction to carry into effect the award,, arbitration or decree of the consul, and for that purpose to issue remedial process, mesne and final, and to enforce obedience thereto by imprisonment. It certainly can not be supposed that it was the inten- tion to give to the Commissioners of the Circuit Court power to make a decree in rem, and direct the sale of a ship. This position, tliat the BETWEEN THE UNITED STATES AND PRUSSIA 59 treaty is not applicable to the present case because it is a proceeding in rem, which did not strike me with much force upon the argument, has gained strengtli in my mind by reflection, and I confess that I am now inclined to the opinion that it is well taken; but I do not intend to rest my determination upon it. Nor do I discuss the position that the treaty was not intended to apply to any difference, except personal differences, between the master and the seamen alone, such as assaults and the like, and does not cover differences as to wages, to which the owners as well as the ship are always real parties. But I pass on to consider whether the effect of this treaty is to prevent the Courts of Admiralty of the United States from taking cognizance of any action brought by seamen to recover wages earned by them on board of a Prussian vessel. At the outset, it appears strange to hear it contended that the jurisdiction of the District Courts of the United States is thus to be .limited, because of an agreement arrived at between Prussia and our Government, as to the jurisdiction of our own courts. Courts are created and their jurisdiction fixed by the law-making power; and the extent of their jurisdiction does not appear to be a fit subject of an agreement with a foreign power. If, in any case, the powers exercised by the courts become a subject of discussion between our Government and a foreign nation, and any limitation of the jurisdiction, already conferred by law, be found to be desirable, the natural, if not the only way of accomplishing such a result would be by the action of the law-making power, instead of the treaty-making power. It appears reasonable, therefore, at least to require that an intention to accomplish such a result by a treaty, should be manifested by express words. The treaty under consideration con- tains no such definite provision. It simply declares that the consuls shall have the right to sit as judges and arbitrators in certain cases, without the interference of the local authorities, which is a very dif- ferent thing from saying that the courts of the United States shall not have jurisdiction in such cases. Fur|:hermore, the law-making power estabHshed the District Courts of the United States and the jurisdiction thereof, and gave to them, in civil cases of admiralty and maritime jurisdiction, all the judicial power vested in the national Gov- ernment by the Constitution ; and it is not to be lightly supposed that the President, acting with the advice of the Senate as the treaty- making power, has undertaken to repeal, pro tanf'o, an existing law relating to the jurisdiction of the courts, and to remove from the juris- 60 THE TREATIES OF 178S, 1799 AND 1828 diction of the District Courts certain classes of actions, and that by reason of their subject-matter, for the provision in this treaty is not confined by its language to Prussian subjects, but applies to all seamen on Prussian vessels without regard to their nationality. It seems to me that no such intention should be imputed to the treaty, if any other can be discerned — and another, and a reasonable intention can he dis- cerned when we consider, in connection with the treaty, the well- known practice of maritime courts in respect to actions brought by seamen to recover wages earned on foreign vessels. Such actions, Courts of Admiralty have long been accustomed to entertain, or to decline, in their discretion. Ordinarily, in the exercise of a sound discretion, they have refused to entertain such actions, when the consul of the foreign power shows reasonable grounds for such declination, and his willingness to determine the matter in controversy. (The Nina, W. & B. Ad. 180, n.) Having this practice in view it may be well inferred, from the lan- guage used in this treaty, that the object of the provision in question was to insure, so far as possible, without a repeal of the existing law, a declination of such actions by the courts in all cases where the consul has acted, and perhaps also where he expresses a willingness to act, as judge or arbitrator between the parties — thus giving to the foreign nation the guarantee of this nation for the continued exercise, by the courts, of that sound discretion which has ordinarily been exer- cised, and committing the nation to answer any demand which might arise from any omission by its courts to exercise such a discretion in this class of cases. Such an effect given to the treaty appears to my mind to be reasonable and suiBcient to accomplish all that was intended. To hold that the treaty repeals pro tanto the act establishing the District Courts, and ousts them of all jurisdiction in this class of cases, would permit cotisuls to refuse to act,> and at the same time withhold from seamen — and American citizens, it may be — all right of resort to the courts of the land. It would give opportunity for great frauds, and open a wide door for the oppression of a class of men entitled by the maritime law, above all others, to the protection of maritime courts. Of the use which would be made of such a construction of the treaty, the present attempt, in violation of all law, to appropriate some $1,100 of the earnings of these men, is not a bad illustration. Under the view of the treaty above indicated, I am thus brought to BETWEEN THE UNITED STATES AND PRUSSIA 61 consider whether the evidence sustains the averment, that the consul- general of Prussia, has already cognizance as a judge or arbitrator of the demand of these seamen, and makes out a case where, for that reason, this court should decline to entertain the action. The words "judge and arbitrator," used in the treaty, must be taken in their ordinary significance. They imply investigation of the facts upon evidence, the exercise of judgment as to the effect to be given thereto and a determination therefrom. And the use of these words indicate an intention not to deprive the seamen of a full and fair hearing of their cause and a decision thereof. If such a hearing had been given these men by the consul, the case would have been different. But here nothing has been done which can in any fair stense be called a hearing of the cause. The consul has not even gone through the form of sitting as judge or arbitrator in respect to the demands of these men. He e^tamined no witnesses, he did not bring the parties before him, and he made no definite determination what- ever. The men say that he refused to hear their story at all. The mate swears that he demanded to see the captain's charge against him, and he was refused. The vice-consul denies this, and says that he did listen to the men, and because they admitted themselves deserters, there was nothing to do but to tell them that they had forfeited their wages, which he did. But he can not say what persons admitted hav- ing deserted, and on cross-examination he shows that the admission was simply an admission by some, he does not know whom, of having left the vessel without leave. He admits having urged the men to go and see the captain, and expressed confidence that if they spoke civil the master would pay them their wages, which appears to be incon- sistent with the idea that he had passed on the demand and adjudged the men not entitled to any wages whatever. The consul is not a court, and neither his record nor his testimony is conclusive on this court. He can not shut his door in the face of parties and then, by declaring that he has adjudicated upon the demand, cut them ofif from a resort to the courts. Before he can call upon the courts to decline to entertain the action, he must show that he has given or is willing to give, to the seamen that hearing which the treaty intends they should have. Here the vice-consul himself testifies, "No adjudication was made in writing — a memorandum only was made. It was noted on the protocol as follows: 'A requisition has been made and given to the captain to be given to the court.' " The making such an entry is not sitting as judge oV arbitrator on the present demand. 62 THE TREATIES OF 1785, 1799 AND 1828 To hold, on such proof, that the vice-consul has acted as judge or as arbitrator in respect to this demand, would countenance a mode of procedure which I should be sorry to see obtain. My conclusion, there- fore, is that there has been no such examination and adjudication of the matter in hand by the consul as the courts require and the treaty intends to secure. In the absence then of any legal limitation of the jurisdiction of the court by the treaty, and in the absence of any proof of such action on the part of the consul as should call upon the court to decline to entertain the action, I deem it my duty to proceed to render a decree — and I do this the more willingly because the master of this vessel is half owner of her, and is here present, where also the seamen are — and because the ship is laid up here by reason of war, nor can it be told when, if ever, she will return to her home. It is a vain thing, there- fore, to say to these sailors, who, although having some $1,100 of wages due, and unpaid, are left paupers, that they must go to Prussia, and there await the return of the ship in order to enforce their demand. If they can not now maintain this action, they are practically deprived of all remedy, and thrown upon this community penniless. Against such a result my sense of justice revolts, and I am unwilling to believe that it is compelled by the law. I, therefore, without hesitation, pro- nounce in this case the decree which the maritime law, applied to the facts, requires, and condemn the vessel to pay the wages of the men. In considering this case thus far, I have treated the action of the vice-consul as equivalent to that of the consul, and have so spoken of it. In point of fact. Dr. Roesing, the consul-general who signed the requisition, which is the only official act proved, aside from the memo- randum on the protocol, never saw either the master or the men, the vice-consul acting for him in everything, except signing the requisition. I have also spoken of the consul as the consul of Prussia, and have considered him to be the official referred to in the treaty with Prussia. The point has been taken that the pro6fs show Dr. Roesing to be consul-general of the North German Union; that there are now no consuls of Prussia, nor any similar treaty with the North German Ujiion. But it appears from the law, proved, that the consul of the North German Union is the consul of each power comprehended in the Union, which is a confederation rather than a Union. Besides, the executive department recognizes Dr. Roesing as the consul of Prussia, by virtue of his appointment as consul-general of the North BETWEEN THE UNITED STATES AND PRUSSIA 63 German Union, and the courts are bound by the action of the executive in such a matter, the question being poHtical, and not judicial. There remains to allude to the phase of the case which is presented by the fact that the libel is filed by Newman, the mate, to recover his own wages, and also the wages of the other men, as the assignee of their demands. So far I have treated the case as if all the men were parties libellant. The evidence shows the execution of a formal assignment to the mate of the claims of the other men, but it also appears that the assign- ment was without consideration, and that the men all expect to receive whatever may be recovered as their wages. This mode of procedure to save multiplicity of suits seems to have been adopted in ignorance of the rule of the admiralty,_ which enables several seamen to join in one action ; and the mate, upon the trial, filed a consent that the other men be now joined as colibellants, and receive in their own persons whatever might be awarded for their claims. Upon such a consent and such facts, I deem it competent to permit all the seamen to join in the action, upon petition to be made colibellants, and, on show- ing the cancellation of their assignments to the mate, to take a decree in their own names for the wages found due them. Two of them are minors, it is true, but, in the admiralty, minors who are mariners are permitted to sue for their wages in their own names. All seamen are in a certain sense treated as minors in maritime courts. In accordance with these views, let a decree be entered in favor of the mate, for his wages earned in the services of this vessel, and still unpaid, with a reference to ascertain the amount, and let similar decrees be made in favor of the seamen, upon the filing of their petition, and showing the cancellation of their assignments to the mate. For Libellants, D. McMahon. For Claimant, E. Salomon. EX PARTE NEWMAN 1 Certain Prussian sailors libelled a Prussian vessel in New York in admiralty for wages, less in amount than $2,000. The master set up a provision in a treaty of the United States with Prussia, by which it was stipulated that the consuls of the respective countries should sit as judges in "differences between the crews and captains of vessels" belonging to their respective countries; and the consul of Prussia, coming into the District Court pro- 181 U. S. 152. (Dec. 1871.) 64 THE TREATIES OF 1785, 1799 AND 1828 tested against the District Court's taking jurisdiction. The District Court, however, did take jurisdiction, and decreed $712 to the sailors. On appeal the Circuit Court reversed the decree, and dismissed the libel because of the consul's exclusive jurisdiction. Held, that mandamus would not lie to the Circuit judge to compel him to entertain jurisdiction of the cause on appeal, and to hear and decide the same on the merits thereof ; and that this conclusion of this court was not to be altered by the fact that owing to the sum in controversy being less than $2,000, no appeal or writ of error from the Circuit Court to this court existed. Petttion for writ of mandamus to the United States Circuit judge for the Ea.stern District of New York; the case. being thus: The Constitution ordains^ that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdic- tion." The 10th article of the treaty of the United States with the King of Prussia, made May 1st, 1828,' contains this provision: The consuls, vice-consuls, and commercial agents shall have the right as such to sit as judges, and arbitrators in such differ- ences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice-con- suls, or commercial agents, should require their assistance to cause their decisions to be carried into efifect or supported. It is, how- ever, understood that this species of judgment or arbitration shall not deprive the contending parties of the rights th^y have to re- sort on their return to the judicial authority of their country. "All treaties made, or which shall be made, under the authority of the United States," it is ordained by the Constitution of the United States,^ "shall be the supreme law of the land." With this treaty thus in force, the mate and several of the crew, all Prussians — who had shipped in Prussia on the Prussian bark Elwine Kreplin, under and with express reference, made in the shipping arti- cles, to the laws of Prussia — got into a difficulty at New York with the master of the bark, who caused several of them tO' be arrested on charges of mutiny and desertion. They, on the other hand, took lArticle 3, Sec 2. 28 Stat, at Large, p. 378. ^Article 6. BETWEEN THE UNITED STATES AND PRUSSIA 65 the case before the Prussian consul; denying all fault on their part, and claiming wages. I'he vice-consul heard the case, and decided that on their own showing they had forfeited their wages by the Prussian law applied to their contract of shipment. In addition to this he issued a requisition addressed to any marshal or magistrate of the United States, reciting that the master and crew had been guilty of deser- tion, and requiring such marshal or magistrate to take notice of their offence. The mate and men now filed a libel in the District Court at New York against the bark for the recovery of wages (less than $2,000), which they alleged were due tO' them ; and the bark was attached to answer. The master of the bark intervening for the interest of the owners answered, and set up various grounds of defence to the claim, some of which arose under the laws of Prussia, and especially he in- voked the protection of the clause in the above quoted treaty between his country and this, and denied the jurisdiction of the District Court, alleging, moreover, that the matter in^ difference, the claim of the libellants for wages, had already in fact been adjudicated by the Pnissian consul at the port of New York. Before the cause was tried in the District Court, the consul-general of the North German Union presented to that court his formal pro- test against the exercise of jurisdiction by that court in the matter in difference.* He invoked therein- the same clause in the treaty, and claimed exclusive jurisdiction of such matters in difference; and de- clared also that, before the filing of the libel the matter had been adjudi- cated by him, and insisted that his adjudication was binding between the parties, and could only be reviewed by the judicial tribunals of Prussia. The District Court proceeded notwithstanding to hear and adjudge the case; placing its right to do this, on the ground that the suit be- fore it was a proceeding in rem to enforce a maritime lien upon the vessel itself, and not a "difference between the captain and crew;" and, also, because the Prussian consul had no power to conduct and *The consul-general of the North German Union was commissioned by the King of Prussia, Prussia being one of the States composing the North German Union ; and by certificate of the Secretary of State of the United States, under the seal of that department, it appeared that the Executive Department of the United States recognizes the consuls of the North German Union as consuls of each one of the sovereign States composing that Union, "the same as if they had been commissioned by each one of such States." 66 THE TREATIES OF 1785, 1799 AND 1828 carry into effect a proceeding in rem for the enforcement of such a lien, and had not in fact passed at all and could not pass upon any such case. Accordingly after a careful examination of the facts, that court decreed in favor of the libellants $712. The case then came by appeal to the Circuit Court. This latter court considered that the District Court had given to the treaty too narrow and technical a con- struction. The Circuit Court said: The master is the representative in this port of the vessel and of all the interests concerned therein. He is plainly so regarded in the treaty. The matter in difference in this cause is the claim for wages. That arises between the crew and the master, either as master or as the representative here of vessel and owners. The lien and the proceeding in rem against the vessel appertain only to the remedy. The very first step in this cause is to settle the matter in dispute. If the claim be established, then, as in- cident to the right to the wages, the lien and its enforcements against the vessel follow. The District Court can have no juris- diction of the lien, nor jurisdiction to enforce it if it has nO' juris- diction of the difference or dispute touching the claim for wages. To hold that the jurisdiction of the consul is confined to cases in which there is no maritime lien, and in which no libel of the vessel could, apart from the treaty, be maintained, is to take from the treaty much of its substance. The Circuit Court adverted to and relied on the fact, that the Prus- sian consul had moreover actually heard the mate and sailors, and pronounced against them. The Circuit Court accordingly, while it expressed on a general view of the merits its sympathy with the sailors, and a strong inclination to condemn the conduct of the master in the matter, yet was "con- strained to the conclusion that the treaty required that the matter in difference should have been left where the treaty with Prussia leaves it, viz., in the hands and subject to the determination of their own public officer." The result was the dismissal of the libels by the Circuit Court for want of jurisdiction. Thereupon Newman and the others, by their counsel, Mes^s. P. Phillips and D. McMahon, filed a petition in this court for a writ of mandamus to the Circuit judge, commanding him. "to entertain juris- diction of the said cause on appeal, and to hear and decide the same on the merits thereof."' The judge returned that the Circuit Court had entertained the appeal, and had heard counsel on all the ques- BETWEEN THE UNITED STATES AND PRUSSIA 67 tions raised in the case, and had decided it; and that the said court had decided that the matter in controversy was within the jurisdiction of the consul under the treaty, and that in the exercise of the jurisdic- tion so given him, he had decided the matter, and that therefore the court had dismissed the libel. The question now was whether the mandamus should issue. The reader will of course remember the provision in the 13th sec- tion of the Judiciary Act, by which it is enacted : That the Supreme Court shall have power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States. And also the provision of the 226. section, extended by an act of 1803 to appeals in admiralty, by which it is enacted: That final judgments and decrees in civil actions ... in a Circuit Court . . . removed there by appeal from a District Court, where the matter in dispute exceeds the sum or value of $2,000, exclusive of costs, may be reexamined and reversed or affirmed in the Supreme Court. Messrs. D. McMahon and P Phillips, in support of the motion: The mandamus should issue: 1st. Because the treaty stipulation is unconstitutional. It strips the courts of the United States of the admiralty jurisdiction conferred on them by the Constitution of the United States. It Is well settled that admiralty courts have jurisdiction, at their discretion, over foreign vessels within their jurisdiction, and actions in rem against them brought by foreign seamen. If then the treaties attempt to confer on a foreign officer exclusive jurisdiction of cases already within the con- trol of admiralty, they violate the Constitution, and are so far null. 2d. The treat}' with Prussia has no reference to suits or proceed- ings in rem., and in that respect differs from the case mentioned in the treaty, of a difference between the master and seamen. The proceed- ing is against the vessel to foreclose a lien, and the owners are brought in incidentally. The master, as such, has no interest, nominal or other- wise, in the suit in question, and it is a misnomer to call the present rase a controversy between a master and his crew; 68 THE TREATIES OF 1785, 1799 AND 1828 3d. The Prussian consul made no adjudication in the matter now in difference, between the libellants and the master. 4th. The treaty is with the kingdom of Prussia, and the tribunals referred to in it are the consuls, vice-consuls, and commercial agents of that government. Now, at the time of the occurrence of the facts here in controversy, tliere were no consuls, or vice-consuls, or com- mercial agents of the kingdom of Prussia in the city of New York, or in the United State?, though there are such oftkers of the North German Union. A treaty stipulation to maintain tribunals indepen- dent of our own, in this countn', is contrary to the spirit of our in- stitutions, as its effect may be to create in our midst many tribunals independent of our national courts. It should, therefore, be construed strictly. 5th. The consul is estopped from, asserting bis exclusive jurisdic- tion, because that he appealed in his "requisition" to our marshals and other magistrates, and prayed them tO' take cognizance of the case. He can not be permitted after doing so, to avail himself of the benefit of the treaty stipulations. Messrs. Salomon and Burke, contra: This is an attempt to cause this court to review the decision already rendered in the Circuit Court and to direct the Circuit judge tO' change his decision, and to render a different judgment in a case which can not be brought before this court by appeal, because the amount in con- troversy is less than $2,000. This can not be done. Mandamus can not perform the functions of a writ of error or of an appeal. This court will never direct in what manner the discretion of an inferior tribunal shall be exercised; but will only, in a proper case, require the inferior court to decide. If the Circuit judge had refused to decide the case, or to enter a decree therein, this court might compel him by mandamus tO' decide or to enter a decree; but even then it could not by such process have commanded him how to decide it, or what decree to enter. A revision of his judicial decision can only take place by appeal. But here the applicants do not com- plain that the judge has refused to decide the case, or that he has re- fused to enter judgment, but they complain that his decision upon some of the questions involved therein, and which were fully argued before, and have been carefully considered and adjudged by him, is BETWEEN THE UNITED STATES AND PRUSSIA, 69 erroneous, and that consequently this court should overrule his judg- ment in this case. Now, strictly speaking, this court can not look into the opinion of the Circuit judge for the purpose of ascertaining om what ground his decision is based with a view of revising it. It can look only to the record, which shows only that the Circuit Court has entertained the appeal, heard and tried it, and upon such hearing and trial, after due consideration, has ordered that the decree of the District Court be reversed and the libel dismissed. How can this court, then upon an application for a mandamus, compel him to decide differently? But, waiving this, no doubt the question arising tmder the treaty with Prussia has from the beginning been the material question in the controversy. That under the treaty the Prussian consul had exclusive jurisdiction, and had exercised that jurisdiction and decided between the parties, was set up by the claimant in his answer; it was brought before the District Court by the consul's protest ; upon that, mainly, the appeal was taken to the Circuit Court. The question involved not only the proper construction of the treaty, but also the examination and adjudication of important facts and circumstances /elating tOi the consul's action in the case. All the points were argued before the Circuit Court, and that court, after consideration, has decided upon the facts and the law. This is in no proper sense a case in which the Circuit Court has refused to entertain or to exercise jurisdiction. It has, in fact, entertained the appeal from the decree of the District Court, and upon consideration has decided that the decree appealed from sho'Uld be reversed, on three grounds: First. That under the treaty with Prussia, the Prussian consul had jurisdiction of the matter in difference involved in the litigation. Second. That that jurisdiction of the Prussian consul was ex- clusive. Third. Upon the proofs the court found and decided, that the Prus- sian consul had adjudicated the matter in difference involved in the litigation, and that the libellants were bound by that adjudication. If this court can by mandamus review this decision of the Circuit Court, then it can in this manner review every case in which a suit is dismissed on the ground of a former adjudication of the subject- matter between the same parties. 70 , . THE TREATIES OF 178S, 1799 AND 1828 Admiralty courts generally decline to interfere between foreigners concerning seamen's wages, except where it is manifestly necessary to do so to prevent a failure of justice, and then only where the voyage has been broken up, or the seamen have been discharged.* Now, if for this reason, in the proper exercise of his judicial discretion, the Circuit judge, on appeal, had ordered a dismissal of the libel, can it be maintained that by mandamus this court could compel him to reverse his own decisiom? Non constat that, if the Circuit judge had not ordered the dismissal of the libel on account of the treaty and the exer- cise of the consular jurisdiction, he would not have so ordered on this ground of comity between nations. The application is for a mandamus directing the Circuit judge to hear the appeal and to decide the same on the merits thereof. What are the merits of the controversy? Is not this question of the jurisdic- tion of the Prussian consul and his decision a part of them? Will this court, by mandamus, determine what is and what is not of "the merits of a controversy? Reply: The law will leave no one remediless, and the amount in controversy not being $2,000, and no appeal existing, and there being no other rempdy, the remedy in the premises must be by mandamus. The writ is issued to inferior courts to enforce the due exercise of these judicial powers ; "and this not only by restraining their ex- cesses, but also by quickening their negligence and obviating their de- nial of justice."^ While this court will not restrain nor direct by mandamus in what manner the discretion of the inferior tribunal should be exercised, it will, in proper cases, require the court to hear and decide. The "principles and usages of law," give the right to a mandamus where a party has a legal right, and no other remedy to enforce it.^ In the case at bar the propo.«ed mandamus does not usurp the func- tions of a writ of error or appeal, for no appeal lies, the amount being; less than $2,000. The case is this. The Circuit jtidge refuses to consider and deter- mine, on the merits, a cause over which he has ample jurisdiction, he entertaining the opinion that he has no jurisdiction, because of the *Gonsales v. Minor. 2 Wallace, Tr., 348. ^Ex parte Bradley, 7 Wallace, 375. ^Phillips's Practice, 230. BETWEEN THE UNITED STATES AND PRUSSIA 71 terms of treat}' with Prussia, In this court it is submitted that his conclusion is erroneous. No appeal, however, lies. A Circuit judge entertaining ver\' strict notions of the extent of admiralty jurisdiction, might, in a contest between State and National courts, paralyze the commerce of a great commercial port like New York. Can there be no correction for this? Is a party to be dismissed in a case like this, with the allegation that the writ of mandamus can not usurp the function of a v/rit of error, therefore there is no correction? While it is conceded that the writ of mandamus can not be used to correct -an erroneous judgment of a court of acknowledged jurisdic- tion, yet it can be invoked to compel a court to exercise its jurisdiction, even though such court be of the opinion it had not jurisdiction. The distinction between the two classes of cases is obvious. The distinc-, tion lies between a direction to an inferior tribunal to act, and direc- tion to it how to act. We do not seek to control the Circuit Court's judgment by the mandamus, but only to compe:l it to entertain juris- diction of the cause, and then to hear and decide according to the law and the allegations and proofs. Authorities are clear on the right of a superior tribunal to compel an inferior tribunal to hear a cause and decide it even after the latter has declined to entertain the cause because of an alleged want of jurisdiction.* Mr. Justice Clifford delivered the opinion oi the court. Attempt was made in the first place to prosecute the suit in the name of the mate for himself and as assignee of the crew, but the court before entering the decree suggested an amen^dment, and the crew were admitted as colibellants, which will render it unnecessary to make any further reference to that feature of the pleadings. Proceedings in rem were instituted in the District Court against the bark Elwine Kreplin, by the mate, for himself and in behalf of the crew of the bark, on the twenty-fourth of August, 1870, in a case of subtraction of wages civil and maritime, and they allege in the libel, as amended, that the bark is a Prussian vessel, and that they are Prussian subjects, and that they were hired by the master and legally shipped on board the bark for a specified term of service, and that they con- *Rex V. Justices of Kent, 14 East, 395; Hull v. Supervisors of Oneida 19 • Johnson, 260 ; Judges of Oneida Countv v. The People. 18 Wendell. 92 and 95. 72 THE TREATIES OF 1785, 1799 AND 1828 linued well and truly to perform the duties they were shipped to ful- fil, and that they were obedient to the lawful commands of the mas- ter, until they were discharged. They also set forth the date when they were shipped, the length of time they had served, the wages they were to receive,' and the amount due and unpaid toi them respectively for their services, and aver that the owners of the bark refuse to pay the amount. Process was issued and served by the seizure of the bark, and the master appeared, as claimant, and filed an answer. He admits that the appellants shipped on board the bark at the place and in the- capaci- ties and for the wages alleged in the libel, but he avers that they signed the shipping articles and bound themselves by the rules, regulations, and directions of the shipping law and rules of navigation of the country to which the bark belonged, and he denies that they well and truly performed their duties, or that they were obedient tO' his lawful commands. On the contrary, he alleges that they, on the day they were discharged, were guilty of gross insubordination and mutinous conduct, that they resisted the lawful commands of the master, and refused to obey the same, and interfered with him in the performance of his duty, and with force and threats prevented him from perform- ing the same, and thereafter, on the same day, deserted from the vessel. Apart from the merits he also set up the following defences: 1. That the court had no jurisdiction of the matter contained in the libel, because the bark was a Prussian vessel, owned by Prussian citi- zens, and because the libellants were Prussian subjects belonging to the crew of the vessel, and were also citizens of that kingdom. Support to that defence is derived from the tenth article of our treaty with that government, which provides that consuls, vice-con- suls, and commercial agents of the respective countries, in the ports of the other, shall have the right, as such, to sit as judges and arbitra- tors in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, un- less the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country, or the consuls, vice-consuls, or commercial agents should require their assistance to cause their de- cisions to be carried into effect.* *8 Stat, at Large, 382. BETWEEN THE UNITED STATES AND PRUSSIA 73 He set up that provision of the treaty, and prayed that he might have the same advantage of it as if the same was separately and for- mally pleaded to the libd. 2. That the libellants in signing the shipping articles bound them- selves, under the penalty of a forfeiture of wages, mot to sue or bring any action for any cause, against the vessel, or the master, or owners thereof, in any court or tribunal except in those of Prussia. 3. That the consul-general of the North German Union, resident in the city of New York, which Government included Prussia and other sovereignties, heard and examined the questions of difference between the libellants and the claimant and adjudicated the same; that the libel- lants appeared before the court on the occasion and presented their claim to be discharged and their claim for wages, and that the consul, in his character as such, heard and examined their said claims and ad- judged that the libellants should return to the vessel, and that no wages were due them or would be due them until they complied with the contract of shipment. Testimony was taken in the District Court, and the District Court entered a decree in favor of the libellants for the amount due them for their wages, and referred the cause to a commissioner to ascertain and report the amount. Subsequently he reported that the amount due to the libellants was seven hundred and forty-three dollars and forty- one cents. Exceptions were filed by the claimant, and the District Court upon further hearing reduced the amount to seven hundred and twelve dollars and thirty-two cents, and entered a final decree for that amount, with costs of suit. Thereupon the claimant appealed to the Circuit Court, and the record shows that the appeal was perfected, and that the cause was duly entered in that court. On the fifth of the last month the petition under consideration was filed in this court in behalf of the appellees in that suit, in which they represented that the cause appealed was fully argued before the Cir- cuit Court on the same pleadings and proofs as those exhibited in the District Court, and that the Circuit judge reversed the decree of the District Court and dismissed the libel for want of jurisdiction in the District Court to hear and determine the controversy ; that the Circuit judge declined to entertain the cause or to consider the same on the merits, and that no final decree on the appeal has been entered in the Circuit Court or signed by the Circuit judge. His refusal to entertain jurisdiction and to hear and decide the 74 THE TREATIES OF 1785, 1799 AND 1828 merits of the case was placed, as they allege, upon the ground that the matter in difference, under the tenth article of the treaty, was within the exclusive cognizance of the consul, vice-consul, or commercial agent therein described, and in consequence thereof that the District Court was without any jurisdiction, which they contend is an error for the following reasons : (1.) Because the treaty stipulation, if so construed, is unconstitu- tional and void. (2.) Because that article of the treaty applies only to disputes be- tween the masters and crews of vessels, and has no reference to suits in rem against the vessel. (3.) Because the record in this case shows that the Prussian au- thorities refused to entertain jurisdiction of the controversy. (4.) Because the treaty is with Prussia, and it appears that her government has no consul, vice-consul, or commercial agent at that port. (5.)- Because that the consul who acted in the case requested the l^strict Court to take jurisdiction of the matter in difference. Hearing was had on the day the petition was presented, and this court granted a rule requiring the Circuit judge tO' show cause on the day therein named why a peremptory writ of mandamus should not issue to hun directing him to hear the appeal of the petitioners and decide the same on the merits. Due service of that rule was made, and the case now comes before the court upon the return of the judge to that rule. He returns, among other things not necessary to be repro- duced, as follows : That the cause of the libellants proceeded to a de- cree in their favor in the District Court ; that an appeal from that de- cree was taken in due form to the Circuit Court for that district; that the Circuit Court did not refuse to entertain the appeal nor did the Circuit Court refuse to decide the case on the appeal nor hold or de- cide that the Circuit Court had no jurisdiction to hear or decide the same, as required by the proofs or by the law. On the contrary, the Circuit Court did entertain the appeal, did hear the coun.sel of the parties fully on all the questions raised in the case, and did decide the same. But in making such decision the said court did hold and decide that the matter in controversy was within the jurisdiction of the consul, under the treaty, and that the consul, in the exercise of that jurisdiction, after hearing the parties, had decided the matter. Pur- BETWEEN THE' UNITED STATES AND PRUSSIA 75 suant to those views the Circuit Court, as the return shows, did there- upon direct that the decree of the District Court be reversed, and that the hbel of the petitioners be dismissed. Power to issue writs of mandamus to any courts appointed under ihe authority of the United States was given to this court by the thir- teenth section of the Judiciary Act, in case^ warranted by the princi- ples and usages of law.* When passed, the section also empowered the court to issue such writs, subject to the same conditions, to per- sons holding ofifiice under the United States, but this court, very early, decided that the latter provision was unconstitutional and void, as it assumed to enlarge the original jurisdiction of the court, which is defined by the Constitution.^ Applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court, having jurisdiction of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in the case, but the principles and usages oi law do not warrant the use of the writ to reexamine a judg- ment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court is to direct the performance of a ministerial act or to command the court to act in a case where the court has jurisdiction and refuses to act, but the super- visory court will never prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in dis- posing of the controversy.^ Where a rule is laid, as in this case, on the judge of a subordinate court, he is ordered to show cause why the peremptory writ of mandamus shall not issue to him, commanding him to do some act which it is alleged he has power to do, and which it is his duty to do, and which he has improperly neglected and refused *1 Stat, at Large, 81. ^Marhury v. Madison, 1 Cranch, 175 ; Ex parte Hoyt, 18 Peters, 290. ^Insurance Co. v. Wilson, 8 Peters, 302; United States v. Peters, 5 Church, 135; Ex parte Bradstreet, 7 Peters, 648; Ex parte Many, 14 Howard, 24; United States v. Lavurence, 3 Dallas, 42; Commissioner v. Whitely, 4 Wallace, 522; Insurance Co. v. Adams, 9 Peters, 602. 76 THE TREATIES OF 1785, 1799 AND 1828 to do, as required by law. Due service of the rule being made the judge is required to make return to the charge contained ih the rule, which he may do by denying the matters charged or by setting up new matter as an answer to the accusations of the relator, or he may elect to submit a motion to quash the rule or to demur to the accusative al- legations. Matters charged in the rule and denied by the respondent must be proved by the relator, and matters alleged in avoidance of the charge made, if denied by the relator, must be proved by the respondent.^ Motions to quash in such cases are addressed to the dis- cretion of the court, but if the respondent demurs to the rule, or if the relator demurs to the return the party demurring admits everything in the rule or the return, as the case may be, which is v/ell pleaded, and if the relator elects to proceed to hearing on the return, without plead- ing to the same in any way, the matters alleged in the return must be taken to be true to the same extent as if the relator had demurred to the return." Subordinate judicial tribunals, when the writ is addressed to them, are usually required to exercise some judicial function which it is alleged they have improperly neglected or refused to exercise, or to render judgnent in some case when otherwise there would be a failure of justice from a delay or refusal tO' act, and the return must either deny the facts stated in the rule or alternative writ on which the claim of the relator is founded, or must state other facts sufficient in law to defeat the claim of the relator, and no doubt is entertained that both of those defences may be set up in the same return, as in the case before the court.^ Several defences may be set up in the same return, and if any one of them be sufficient the return will be upheM.* Evidently the District judge was inclined to adopt the proposition, advanced by the libellants. that the suit for wages, as it was prosecuted hy a libel in rem, was not within the treaty stipulation, nor a contro- lAng-ell & Ames on Corporations, 9th ed. Sec. 727; Cogger v. Supervisors 2 Abbott's Practice, N. S. 78. ^Tapping on Mandamus, 347; Moses on Mandamus, 210; Com. Bank v. Com- missioners. 10 Wendell, 25; Rvan v. Russel. 1 Abbott's Practice, N. S. 230; Hanahan v. Board of Police, 26 New York, 316; Middleton v. Commissioners, 37 Pennsylvania State, 245; 3 Stephens's Nisi Prius, 2326; 6 Bacon's Abridg- ment, ed. 1856, 447. ^Springfield v. Harnden, 10 Pickering, 59; People v. Commissioners, 11 How- ard's Practice, 89; People v. Champion, 16 Johnson, 61. *Wright v. Fawcett, 4 Burrow, 2041; Moses on Mandamus, 214. BETWEEN THE UNITED STATES AND PRUSSIA 77 versy within the jurisdiction of the consul, but he did not place his decision upon that ground. He did, however, rule that the treaty did not have the effect to change the jurisdiction of the courts, except to require them to decline to hear matters in difference between the masters and crews of vessels in all cases where the consul had acted or perhaps was ready to act as judge or arbitrator in respect to such differences. Beyond doubt he assumed that to be the true construction of the treaty,_and having settled that matter he proceeded to inquire whether the consul had adjudicated the pending controversy, or whether the evidence showed th.at he was ready to do so, and having answered those inquiries in the negative he then proceeded to examine the pleadings and proofs, and came to the conclusion in the case which is expressed in the decree from which the appeal was taken to the Circuit Court. All of those matters were again fully argued in the Circuit Court, and the Circuit judge decided to reverse the decree of the District Court upon the following grounds: (1.) That the Prussian consul, under the treaty, had jurisdiction of the subject-matter involved in the suit in the District Court. (2.) That the jurisdiction of the consul under the treaty was exclusive. (3.) That the proofs showed that, the consul heard and adjudicated the matter involved in the suit appealed to the Circuit Court, and that the libellants were bound by that adjudication. Such questions were undoubtedly raised in the pleadings, and it is equally certain that they were decided by the District Court in favor of the libellants. Raised as they were by the pleadings, it can not be successfully denied that the same questions were also presented in the Circuit Court, and in view of the return it must be conceded that they were decided in the latter court in favor of the respondent. Support to that proposition is also found in the opinion of the Circuit judge, and in the order which he made in the case. Suffice it, however, to say, it so appears in the return before the court, and this court is of the opinion that the return, in the existing state of the proceedings, is conclusive. Confessedly the petitioners are without remedy by appeal or writ of error, as the sum or value in controversy is less than the amount required to give that right, and it is insisted that they ought on that account to have the remedy sought by their petition. Mandamus will not lie, it is true, where the party may have an appeal or writ of error, 78 THE TREATIES OF 1785, 1799 AND 1828 but it is equally true that it will not lie in many other cases where the party is without remedy by appeal or writ of error. Such remedies are not given save in patent and revenue cases, except when the sum or value exceeds two thousand dollars, but the writ of mandamus will not lie in any case to a subordinate court unless it appears that the court of which complaint is made refused to act in respect to a matter within the jurisdiction of the court and where it is the duty of the court to act in the premises. Admiralty courts, it is said, will not take jurisdiction in such a case , except where it is manifestly necessary to do so to prevent a failure of justice, but the better opinion is that, independent of treaty stipula- tion, there is no constitutional or legal impediment to the exercise of jurisdiction in such a case. Such courts may, if they see fit, take jurisdiction in such a case, but they will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determining the question of discretion, whether jurisdiction in the case ought or ought not to be exercised.* Superior tribunals may by mandamus command an inferior court to perform a legal duty where there is no other remedy, and the rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed and it be judicial in its character the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done, or if it be ministerial, the mandamus will direct the specific act to be performed.^ Power is given to this court by the Judiciary Act, under a writ of error, or appeal, to affirm or reverse the judgment or decree of the Circuit Court, and in certain cases to render such judgment or decree as the Circuit Court should have rendered or passed, but no such power is given under a writ of mandamus, nor is it competent for the superior tribunal, under such a writ, to reexamine the judgment or decree *2 Persons on Shipping, 224; Lynch v. Crowder, 2 Law Reporter, N. S. 355; Thompson v. Nanny, Bee, 217; The Bee, Ware, 332; The Infanta, Abbott's Ad- miralty, 263. '-Carpenter v. Bristol, 21 Pickering, 258; Angell & Ames on Corporations, 9th ed.. Sec. 720. BETWEEN THE UNITED STATES AND PRUSSIA 79 of the subordinate court. Such a writ can not perform the functions of an appeal or writ of error, as the superior court will not, in any case, direct the judge of the subordinate court what judgment or decree to enter in the case, as the writ does not vest in the superior court any power to give any such direction or to interfere in any manner with the judicial discretion and judgment of the subordinate court/ Viewed in the light of the return, the court is of the opinion that the rule must be discharged and the Petition denied. Case No. 4,426 THE EL WINE KREPLIN^ [9 Blatchf. 438] 3 Circuit Court, E. D. New York. Feb. 23, 1872.* Constitutional Law — Effect of Express Provisions of Foreign Treaty upon Jurisdiction of Local Courts Article 10 of the treaty between the United States and the king of Prussia, of May 1, 1828 (8 Stat. 378, 382), provides, that the consuls, vice-consuls and commercial agents of each party "shall have the right, as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belong to the nation whose interests are committed to their charge, without the interference of the local authorities," subject to the right of the contending parties "to resort, on their return, to the judicial authority of their country," and to the right of the consuls, vice-consuls or commercial agents to require the assistance of the local authorities, "to cause their de- cisions to be carried into effect or supported." The crew of a Prussian vessel sued her in rem. in admiralty, in the district court, to recover wages alleged to be due to them. The master of the vessel answered, denying the debt, in- voking the protection of said treaty, denying the jurisdiction of the court, and averring that the claim for wages had already been adjudicated by the Prussian consul at New York. The consul also protested formally to the ^Ex parte Crane, 5 Peters, 194; Ex parte Bradstreet, 7 Id. 634; Insurance Co. V. Wilson, 8 Id. 304; Ex parte Many, 14 Howard, 25. 28 Federal Cases, 588. 3 [Reported by Hon. Samuel Blachford, District Judge, and here reprinted by permission.] * [Reversing The Elwine Kreplin, Case No. 4,427.] 80 THE TREATIES OF 1785, 1799 AND 1828 court against the exercise of its jurisdiction. The case was tried in the district court, and it appeared that the consul had adjudicated on the claim for wages. The district court decreed in favor of the libellants : Held, that the district court had no jurisdiction of the case. [Cited in The Belqeiiland v. Jensen. 114 U. S. 364, S Sup. Ct. 864; Re Aubrey, 26 Fed. 8S1; Davis v. The Burchard. 42 Fed. 608: The Welhaven, 55 Fed. 81.] [Appeal from the district court of the United States for the eastern district of New York.] [This was a case of subtraction of wages, instituted by Max New- man, the chief mate of the Prussian bark Elwine Kreplm, to recover the sum of $173, amount of wages due; also $1,158, the aggregate amount of the wages of the crew, which he claimed to recover as assignee. In the district court a decree was given in favor of the mate (Case No. 4,427), whereupon this appeal is prosecuted.] Dennis McMahon, for libellants. Edzc'ard SalomoUj for claimants. Woodruff, Circuit Judge. By the tenth article, of the treaty made by the United States with the king of Prussia, on the 1st of May, 1828 (8 Stat. 378, 382), it is provided, that "the consuls, vice-consuls, and commercial agents," — which each of the parties to the treaty is declared entitled to have in the ports of the other — "shall have the right, as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities. * * * It is, however, understood, that this species of judgment or arbitration shall not deprive the con- tending parties of the right they have to resort, on their return, to the judicial authority of their country." To this general rule there is a qualification : "Unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country, or the said con- suls, vice-consuls, or commercial agents should require their assistance" (the assistance of the local authorities), "to cause their decisions to be carried into effect or supported." This treaty is, by the constitution of the United States, the law of the land, and the courts of justice are bound to observe it. When a case arises which is within this provision of the treaty, jurisdiction thereof belongs to the consul, vice-consul or commercial agent of the nation whose interests are committed to his charge, and with the exercise of that jurisdiction the local tribunals BETWEEN THE UNITED STATES AND PRUSSIA 81 are not at liberty to interfere, unless such consul, vice-consul, or com- mercial agent requires their assistance, to cause their decision to be carried into effect or supported. In the present case, the mate and several of the crew of the barque Elwine Kreplin prosecuted their libels against the vessel, in the district court, for the recovery of wages alleged to be due to them, which the master of the vessel denied to be due, upon various grounds ; and the vessel was attached to answer. The master of the barque, intervening for the interest of the owner, sets up, in his answer, various grounds of defence to the claim, some of which arise under the laws of Prussia ; and, especially, he invokes the pro- tection of the treaty above-mentioned, and denies the jurisdiction of the district court, alleging, moreover, that the matter in difference — the claim of the libellants for wages — has already, in fact, been ad- judicated by the Prussian consul at the port of New York. Before the cause was tried in the district court, the consul-general of the North German Union presented to the district court his formal protest against the exercise of jurisdiction by that court in the matter in difference. He invoked therein the treaty above referred to, and claimed exclusive jurisdiction of such matter in difference; and he also declared, that, before the filing of the libel, the said matter had been adjudicated "by him, and insisted that his adjudication was binding between the parties, and could only be reviewed by the judicial tribunals of Prussia. The barque is a Prussian vessel, the mate and crew are Prussian seamen, who shipped in Prussia, under and with express reference to the laws of Prussia, referred to in the shipping articles, and it should be assumed, that the treaty which binds this nation and its citizens and seamen, binds also Prussia and her subjects and seamen. The consul-general of the North German Union is commissioned by the king of Prussia, and, by certificate of the secretary of state of the United States, under the seal of that department, it appears, that the executive department of the United States recognizes the consuls of the North German Union as consuls of each one of the sovereign states composing that Union, "the same as if they had been commis- sioned by each one of such states." The kingdom of Prussia is one of the states composing the North German Union. The treaty does not require that the consuls, vice-consuls, &c., should bear any specific name. It is sufficient, that the "interests" of Prussia "are committed 82 THE TREATIES OF 1785, 1799 AND 1828 to their charge," and quite sufficient, that the government of the United States, by its executive, recognizes the consul as consul of the kingdom of Prussia. The discussion of the case at the hearing on the appeal, was, on the part of the libellants, very largely devoted to the merits of the claim for wages, upon principles applicable, it may be, to the subject, if no such treaty was in force, and under decisions of our courts in reference to the rights and duties of seaman and master, the effect of the mis- conduct of either upon the obligation of the other, for the purpose of showing that the treatment of the libellants by the master exonerated them from their duty to serve according to the terms of the shipping articles, and also from all others of its stipulations, even from such as arise from the laws of Prussia forming a part of the terms, stipula- tions, and conditions which enter into the relation of the crew to the master and owners, and to the vessel. That discussion was very full, and was presented, in argument, with great ability, by the counsel for the libellants. With most of the rules of the law invoked by the counsel, when considered apart from and independent of any treaty stipulation, the claimants have no contest; and they are, no doubt, settled, by the cases cited. But the prior question of jurisdiction must be determined, before it is competent even to enquire into the merits of the libellants' claim to recover their wages. In the first instance, it would seem clear, that a claim of the crew of a Prussian vessel to recover wages which the master of the vessel either denied to be due, or refused to pay, was, par eminence, a matter in difference between the captain and crew, which, by the very terms of the treaty, the Prussian consul or vice-consul had jurisdiction, as judge or arbitrator, to determine, "without the interference" of the courts of this country; and such jurisdiction, when it exists, is, by such terms as these, exclusive. It is, however, claimed, that the present cause is not at all embraced within the treaty, for the reason, that it is a proceeding in rem, to enforce a maritime Hen upon the vessel itself, and not a difference between the captain and crew ; and, also, because the Prussian consul has no power to conduct and carry into effect a proceeding in rem for the enforcement of such a lien. The treaty can receive no such narrow and technical construction. The master is the representative, in this port, of the vessel, and of all the interests concerned therein. He is plainly so regarded in the treaty. The matter in difference in this cause is the claim for wages. BETWEEN THE UNITED STATES AND PRUSSIA 83 That arises between the crew and the master, either as master, or as the representative here of vessel and owners. It is precisely that which is in litigation in this case. The lien, and the proceeding in rem against the vessel, appertain to the remedy, and only to the remedy. The very first step in this cause is to settle the matter in dispute. If the claim be established, then, as incident to the right to the wages, the lien and its enforcement against the vessel follow. The district court can have no jurisdiction of the lien, nor jurisdiction to enforce it, if it has no jurisdiction of the difference or dispute touching the claim for wages. To hold that the jurisdiction of the consul is con- fined to cases in which there is no maritime lien, and in which no libel of the vessel could, apart from the treaty, be maintained, is to take from the treaty very much of its substance. The existence of any lieii, and of any right to charge the vessel, is in difference here. To say, that the treaty gives the consul jurisdiction of claims against the master in personam, and does not include a claim to remove the vessel itself from his custody, as the owner pro hac vice, or as the representa- tive of all the interests therein, that the voyage may be broken up, and the vessel sold for the wages of the crew, and that an effort, by judicial proceeding, to do this, is not included in the terms, a difference arising between captain and crew, seems to me to destroy the very substance of the stipulation, and defeat its obvious purpose, to confine both masters and crews of Prussia to the rights and obliga- tions of the Prussian laws, and compel obedience to its mandates. And, be it observed, the treaty gives the same protection to, and requires the like obedience by, the masters and crews of vessels of the United States. It does not add to the legal reasons for this view, but, if a vessel of the United States were sold in a port in Prussia, to pay the wages of its crew, alleged by the master not to be payable, and in repudiation of any right of the United States consul at that port to act as judge or arbitrator upon that claim, it would, at least, stimulate our quickness of apprehension to discover, and would incline us to insist, that the treaty intended to protect our shipowners against the application of foreign laws, and the decisions of foreign courts, to our vessels and the relations of the master and crews thereof. To the suggestion, that the consul has no power to enforce the maritime lien, and cause the vessel to be sold, to satisfy the wages, if he should find that wages are due and payable, it is sufficient to say, that the treaty has been deliberately entered into, and has become the law for both nations. Each preferred to employ its own officers. The 84 THE TREATIES OF 1785, 1799 AND 1828 power given to consuls to act as judge or arbitrator is not made final. The parties have the right of resort to the tribunals of their own coun- try-, without being concluded by the decisions of the consul. This was deemed a sufficient protection, and to afford, for the time being, a sufficient remedy to both master and ci'ew ; and it is not for this court to say, that the remedy here, by attachment of the. vessel, will be more efficient and useful, and, on that ground, to apply it. Besides, this court can not know that the remedy by resort to the vessel is not, if it exists, so regulated in Prussia, that it was intended that her sea- men should not invoke against the vessel the remedies permitted by our laws, under the mode of administration and rules of decision by which our courts are governed. And, further, under the expressed exception, which peiTnits resort to local tribunals by consuls, &c., who may re- quire their assistance to cause their decisions to be carried into effect or supported, it is plausible, at least, to say, that, if the consul decide, on a difference between captain and crew, that wages are payable, the power of the court to attach and condemn the vessel for their pay- ment may be invoked to support and give effect to such decision. Again, it is said, that, in this case, the captain and crew were not confronted before the counsel, witnesses were not examined, no ad- judication in writing was made, but the consul only orally declared his judgment of the matter in difference, after hearing the statement of the master and the statement of the libellants, and then declared that he had nothing further to do therein. The proceeding does not, it is true, conform to our ideas of the requisites of a judicial pro- ceeding; but, are the courts of this country to prescribe to the Prus- sian consul the forms and modes of proceeding which he must adopt when he acts as a judge or arbitrator between master and crew under this treaty? Must he follow the practice, and be governed by the rules, governing trials and arbitrations under our laws? Must our consuls in Prussia follow the rules and practice of the courts of that kingdom ? If so, then the district court here was sitting as a court of error, to review the judgment or award of the Prussian consul. What can this court say are the formal requisites of a Prussian arbitration? It is manifest, by the reservation of the right to resort to the judicial tribu- nals of the home country, without being concluded by the decision of the consul, that the proceeding before him as an arbitrator or judge was intended to be summary, and its conduct left very much in his discre- tion ; and, especially, it is manifest, that the nations respectively in- BETWEEN THE UNITED STATES AND PRUSSIA 85 tended to confide in their consul, and temporarily entrust to him the adjustment of differences between officer and crew of their vessel in the port of the other, and it was not intended that the courts of such other nation should sit in judgment upon the form or regularity, or the justice, of the acts of the consul, or interfere therewith in any manner. It was deemed safe and proper to leave to such consuls this temporary administration of the interests of their seamen abroad, assured that they would act with fairness and integrity therein, but yet giving the right of full and final investigation and adjudication at home, where home laws, home remedies, and home modes of in- vestigation could be resorted to. The district court here not only passed upon the requisites of the proceeding as judicial, or as an arbitrament, but assumed to inquire into the details of the evidence, and the truth of the declared grounds upon which the vice-consul testified that he acted, and which he says were before him in the admissions of the crew — thus, in effect, reviewing the law and the facts which the consul made the basis of his decision. It is claimed, that the consul did not act as judge or arbitrator to determine this case, and that, he not having taken jurisdiction, a pro- ceeding in our courts is no interference in disregard of the treaty. It is by no means clear, that the attachment of the vessel, on the libel of the crew, is not, in itself, such an interference as precludes the action of the consul. But in this case, the argument disregards the clearly established fact, that the consul or his vice-consul (who is, in terms, included in the treaty, and whose acts in the matter the consul recog- nizes), did hear the parties respectively. On the statement of the case by the crew (who, whichsoever of them was the first speaker, had the opportunity to tell their story), he pronounced against them. On their own story, he decided that they had forfeited their wages, by the Prussian law, applied to their contract of shipment ; and, after- wards, when this suit was commenced, he formally represents to the court, that he had already adjudicated the matter in difference, and claimed that his jurisdiction for that purpose is exclusive of the courts of this country. It was after such declaration of his decision to the crew, that he, knowing that the vessel was laid up, advised them to see the captain, and, by civil and conciliatory deportment, induce him to waive the forfeiture and pay the wages which had accrued. In the situation in which the vessel and her master then were, it is obvious, that, if the men had forfeited their wages (of which I here express 86 THE TREATIES OF 1785, 1799 AND 1828 no opinion), their acts had wrought no great harm, the captain had no present need of the services of so many, and many considerations might properly have moved him to pay their wages and let them go. The advice of the consul indicated that he thought the loss of their service was no inconvenience to the captain and, even if wrong there- tofore, they had claims to his consideration, while destitute and in a foreign country, which might and, perhaps, ought to induce him to pay their wages. This is all there is of the argument, that the consul himself regarded the crew as practically discharged. 1 do not propose to examine the merits of the libellants' claim for wages. That they were, on the requisition of the consul, and without sufficient grounds therefor, held in prison as deserters, is most prob- able. That their departure from the vessel, and going ashore without leave, and against the will of the master (save as to one, who had his consent), is not desertion by our law, unless it was done without the intention to return, is, no doubt, true. That the master did not, in fact, consent to the discharge of any of them, is, I think, clear, while I think it in the highest degree probable, that, if this difficulty had not arisen, he would, in view of the laying up of the vessel, have consented to part with most of them. I do not think it certain, that an imprisonment, on the requisition of the consul, though induced by a statement of the facts by the captain, operated to discharge the seamen from their articles, even though the imprisonment was not warranted by the facts. Jordan v. Williams [Case No. 7,528]. Nor is it certain that, under this treaty, and the act of March 2, 1829 (4 Stat. 359), a state magistrate can have no jurisdiction to arrest and detain a seaman charged as a de- serter. True, the laws of the United States may not make it the duty of a state judge to act; but it does not follow, that, if he is included in the law, his acts will be without authority. There are many powers conferred upon state magistrates by the laws of the United States, which, if executed, are valid. Whether such magistrate is bound to accept the authority and act upon it, is another question. The act of 1829, in determining the duty, confers the power on "any court, judge, justice, or other magistrate having competent power, to issue war- rants" to arrest, &c. See Pars. Shipp. & Adm. 102; Kentucky v. Dennison, 24 How. [65 U. S.] 66, 107, 108. It is apparent, that the requisition was given to the master to be delivered to the justice at Staten Island, who, as the captain informed the consul, then detained BETWEEN THE UNITED STATES AND PRUSSIA 87 the seamen; and if, as stated by counsel (though it does not appear as printed in the copy proofs handed to me), it was addressed to "any magistrate," &c., the power of the magistrate is not clearly wanting. But all these and other questions go to the merits. They bear on the broad question, whether, under the terms of the shipping articles, and the Prussian rules contained in the navigation book, &c., the seamen had a right to their wages. The effect of the stipulation not to sue in a foreign country, which appears to be one of those rules, also, and what amounts to a discharge from the contract, actual or constructive, are questions on the merits ; and the sympathy, which the condition of these men, penniless in a foreign land, whether with or without fault on their part, must awaken in every mind susceptible of human emotion, strongly inclines to a condemnation of the conduct of the master in this matter. But I am constrained to the conclusion, that the treaty required that this matter in difference should have been left where, I think, the treaty with Prussia leaves it — in the hands, and subject to the determination, of their own public officer. The necessary result is the dismissal of the libels. [Note. An application was afterwards made to the supreme court for a mandamus to compel the circuit court to pass upon the merits, but it was denied.] UNITED STATES v. DIEKELMAN ^ 1. Unless treaty stipulations provide otherwise, a merchant vessel of one country- visiting the ports of another for the purpose of trade, is, so long as she remains, subject to the laws which govern thern. 2. Where, in time of war, a foreign vessel, availing herself of a proclamation of the President of May 12, 1862, entered the port of New Orleans, the blockade of which was not removed, but only relaxed in the interests of commerce, she thereby assented to the conditions imposed by such procla- mation that she should not take out goods contraband of war, nor depart until cleared by the collector of customs according to law. 3. As New Orleans was then governed by martial law, a subject of a foreign power entering that port with his vessel under the special license of the proclamation became entitled to the same rights and privileges accorded under the same circumstances to loyal citizens of the United States. Restrictions placed upon them operated equally upon him. 192 U. S. Reports, 520. 88 THE TREATIES OF 1785, 1799 AND 1828 4. Money, silver-plate, and bullion, when destined for hostile use or for the- purchase of hostile supplies, are contraband of war. In this case, the determination of the question whether such articles, part of the outward- bound cargo of the vessel, were contraband, devolved upon the command- ing general at New Orleans. BeHeving them to be so, he, in discharge of his duty, ordered them to be removed from her, and her clearance to be* withheld until his order should be complied with. 5. Where the detention of the vessel in port was caused by her resistance t&- the orders of the properly constituted authorities whom she was bound to obey, she preferring such detention to a clearance upon the conditions imposed, — Held, that her owner, a subject of Prussia, is not "entitled to any damages" against the United States, under the law of nations or the treaty with that power. 8 Stat. 384. Appeal from the Court of Claims. Mr. Assistant Attorney-General Edwin B. Smith for the appellant.. Mr. J. D. McPherson, contra. Mr. Chief Justice Waite delivered the opinion of the court. This suit was brought in the Court of Claims under the authority of a joint resolution of both Houses of Congress, passed May 4, 1870,. as follows: That the claim of E. Diekelman, a subject of the King of Prus- sia, for damages for an alleged detention of the ship "Essex" by the military authorities of the United States at New Orleans, in the month of September, 1862, be and is hereby referred tO' the Court of Claims for its decision in accordance with law, and to award such damages as maj^ be just in the premises, if he may be found to be entitled to any damages. Before this resolution was passed, the matter of the claim had been the subject of diplomatic correspondence between the governments of the United States and Prussia. The following article, originally adopted in the treaty of peace be- tween the United States and Prussia, concluded July 11, 1799 (8 Stat. 168), and revived by the treaty concluded May 1, 1828 (8 Stat, 384), was in force when the acts complained of occurred, to wit : Art. XIIL And in the same case, if one of the contracting parties, being engaged in war with any other power, to prevent all the difficulties and misunderstandings that usually arise re- specting merchandise of contraband, such as arms, ammunition and military stores of every kind, no such articles carried in the. BETWEEN THE UNITED STATES AND PRUSSIA 89 -vessels, or by the subjects or citizens of either party, to the en- emies of the other, shall be deemed contraband so as to induce •confiscation or condemnation, and a loss of property to individ- uals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the cap- tors may think necessary to prevent the inconvenience or damage "that 'might ensue from their proceeding ; paying, however, a rea- sonable compensation for the loss such arrest shall occasion to "the proprietors ; and it shall_ further be allowed to use in the ser- vice of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be .ascertained by the current price at the place of its destination. But in the case supposed of a vessel stopped for articles of con- traband, if the master of the vessel stopped will deliver out the ■goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port, nor further detained, but shall be allowed to proceed on her voyage. When the Essex visited New Orleans, the United States were ■engaged in the war of the rebellion. The port of that city was, at the very commencement of the war, placed under blockade, and closed against trade and commercial intercourse; but, on the 12th of May, 1862, the President, having become satisfied that the blockade .might "be safely relaxed with advantage to the interests of com- merce," issued his proclamation, to the efl"ect that from and after June 1 "commercial intercourse, * * * except as to persons, things, and information contraband of war," might "be carried on subject to the laws of the United States, and to the limitations, and in pursuance of the regulations * * * prescribed by the Secretary of the Treasury," and appended to the proclamation. These regula- tions, so far as they are applicable to the present case, are as follows : 1. To vessels clearing from foreign ports and destined to * * * New Orleans, * * + licenses will be granted by consuls of the United States upon satisfactory evidence that the vessels so licensed will convey no persons, property, or information contra- "band of war either to or from the said ports ; which licenses shall be exhibited to the collector of the port to which said vessels may be respectively bound, immediately on arrival, and, if re- quired, to any officer in charge of the blockade: and on leaving either of said' ports every vessel will be required to have a clear- ance from the collector of the customs according to law, show- ing no violation of the conditions of the license. 12 Stat. 1264. 90 THE TREATIES OF 1785, 1799 AND 1828 The Essex sailed from Liverpool for New Orleans June 19, 1862, and arrived August 24. New Orleans was then in possession of the military forces of the United States, with General Butler in command. The city was practically in a state of siege by land, but open by sea, and was under martial law. The commanding general was expressly enjoined by the Govern- ment of the United States to take measures that no supplies went out of the port which could afford aid to the rebellion; and, pursuant to this injunction, he issued orders in respect to the exportation of money, goods, or property, on account of any person known to be friendly to the Confederacy, and directed the custom-house officers to inform him whenever an attanpt was made tO' send any thing out which might be the subject of investigation in that behalf. In the early part of September, 1862, General Butler, being still in command, was informed that a large quantity of clothing had been bought in Belgium on account of the C^onfederate government, and was lying at Matanoras awaiting delivery, because that government had failed to get the means they expected from New Orleans to pay for it ; and that another shipment, amovmting to a half million more, was delayed in Belgium from coming forward, because of the non- payment of the first shipment. He was also informed that it, was ex- pected the first payment would go forward through the agency of some foreign consuls; and this information afterwards proved to be correct. He was also informed early in September by the custom-house offi- cers, that large quantities of silver-plate and bullion were being shipped on the Essex, then loading for a foreign port, by persons, one of whom had declared himself an enemy of the United States, and none of whom would enroll themselves as friends; and he thereupon gave directions that the specified articles should be detained, and their exportation not allowed until fui'ther orders. On the 15th September, the loading of the vessel having been completed, the master applied to the collector of the port for his clearance, which was refused in consequence of the orders of General Butler, but without any reasons being assigned by the collector. The next day, he was informed, however, that his ship would not be cleared unless certain specified articles which she had on board were taken out and landed. Much correspondence ensued between Gen- eral Butler and the Prussian consul at New Orleans in reference to BETWEEN THE UNITED STATES AND PRUSSIA 91 the clearance, in which it was distinctly stated by General Butler that the clearance would not be granted until the specified goods were landed, and that it would be granted as soon as this should be done. Almost daily interviews took place between the master of the vessel and the collector, in which the same statements were made by the collector. The master refused to land the cargo, except upon the return of his bills of lading. Some of these bills were returned, and the property surrendered to the shipper. In another case, the shipper gave an order upon the master for his goods, and they were taken away by force. At a very early stage in the proceeding, the master and the Prussian consul were informed that the objection to the ship- ment of the articles coinplained of was that they were contraband. A part only of the goods having been taken out of the vessel, a clearance was- granted her on the 6th of October, and she was per- mitted to leave the port and commence her voyage. Upon this state of facts, the Court of Claims gave judgment for Diekelman, from which the United States took an appeal. One nation treats with the citizens of another only through their government. A sovereign cannot be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his ob- ligations, by treaty or otherwise, voluntarily assumed. Hence, a citi- zen of one nation wfonged by the conduct of another nation, must seek redress through his own Government. His sovereign must assume the responsibility of presenting his claim, or it need not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the demand is made to determine for himself what he will do in respect to it. He may pay or reject it; he may submit to arbitration, open his own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself. In this case, Diekelman, claiming to have been injured by the alleged wrongful conduct of the military forces of the United States, made his claim known to his Government. It was taken into consid- eration, and became the subject of diplomatic correspondence be- tween the two nations. Subsequently. Congress, by joint resolution. 92 THE TREATIES OF 1785, 1799 AND 1828 referred the matter to the Court of Claims "for its decision according to law." The courts of the United States were thus opened to Die- kelman for this proceeding. In this way the United States have submitted to the Court of Claims, and through that court upon appeal to us, the determination of the question o^f their legal liability under all the circumstances of this case for the payment of damages to a citizen of Prussia upon a claim originally presented by his sovereign in his behalf. This requires us, as we think, to consider the rights of the claimant under the treaty between the two Governments, as well as under the general law of nations. For all the purposes of its de- cision, the case is to be treated as one in which the Government of Prussia is seeking to enforce the rights of one of its citizens against the United States in a suit at law, which the two Governments have agreed might be instituted for that purpose. We shall' proceed upon that hypothesis. 1. As to the general law of nations. The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they remain ; and this as well in war as in peace, unless it is otherwise provided by treaty. The Exchange v. McF addon, 7 Cranch, 116. When the Essex sailed from Liverpool, the United States were engaged in war. The proclamation under which she was permitted to visit New Orleans made it a condition of her entry that she should not take out goods contraband of war, and that she should not leave until cleared by the collector of customs according to law. Previous to June 1, she was excluded altogether from the port by the blockade. At that date the blockade was not removed, but relaxed only in the interests of commerce. The war still remained paramount, and commercial intercourse subordinate only. When the Essex availed herself of the proclamation and entered the port, she assented to the conditions imposed, and can not complain if she wa^. detained on account of the necessity of enforcing her obligations thus assimied. The law b)' which the city and port were governed was martial law. This ought to have been expected by Diekelman when he despatched his vessel from Liverpool. The place had been wrested from the possession of the enemy oniv a few days before the issue of the proclamation, after a long and desperate struggle. It was, in fact, a BETWEEN THE UNITED STATES AND PRUSSIA 93 garrisoned city, lield as an outpost of the Union anny, and closely besieged by land. So long as it remained in the possession of the insurgents, it was to them an important blockade-running point, and after its capture the inhabitants -were largely in sympathy with the rebellion. The situation was, therefore, one requiring the most active vigilance on the part of the general in command. He was especially required to see that the relaxation of the blockade was not taken ad- vantage of by the hostile inhabitants to promote the interests of the enemy. All this was matter of public notoriety; and Diekehnan ought to have known, if he did not in fact know, that although the United States had to some extent. opened the port in the interests of commerce, they kept it closed to the extent that was necessary for the vigorous prosecution of the war. When he entered the port, therefore, with his vessel, under the special license of the proclama- tion, he became entitled to all the rights and privileges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. Such restrictions as were placed upon citizens, operated equally upon him. Citizens were governed by martial law. It was his dut)' to submit to the same authority. Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed. New Orleans was at this time the theatre of the most active and important military operations. The civil authority was overthrown. General Butler, in command, was the military ruler. His will was law, and necessarily so. His first great duty was to maintain on land the blockade which had theretofore been kept up by sea. The partial opening of the port toward the sea, made it all the more important that he should bind close the military lines on the shore which he held. To this law and this Government the Essex subjected herself when she came into port. She went there for gain, and voluntarily assumed all the chances of the war into whose presence she came. By availing herself of the privileges granted by the proclamation, she, in effect, covenanted not to take out of the port "persons, things, or information contraband of war." What is contraband depends upon circumstances. INIoney and bullion do not necessarily partake of that character; but, when destined for hostile use or to procure hostile supplies, they do. Whether they are so or not, under the circum- 94 THE TREATIES OF 1785, 1799 AND 1828 stances of a particular case, must be determined by some one when a necessity for action occurs. At New Orleans, when this transactiom took place, this duty fell upon the general in command. Military cojnmanders must act to a great extent upon appearances. As a rule, they have but little time to take and consider testimony before decid- ing. Vigilance is the law of their duty. The success of their oper- ations depends to a great extent upon their watchfulness. General Butler found on board this vessel articles which he had reasonable cause to believe, and did believe, were contraband, because intended for use to promote the rebellion. It was his dvtty, there- fore, under his express instructions, to see that the vessel was not cleared with these articles on board ; and he gave orders accordingly. It matters not now whether the property suspected was in fact con- traband or not. It is sufficient for us that he had reason to believe, and in fact did believe, it to be contraband. No attempt has been made to show that he was not acting in good faith. On the contrary, it is apparent, from the finding of the court below, that the existing facts brought to his knowledge were such as to require his prompt and vigorous action in the presence of the imminent danger with whicii he was surrounded. Certainly, enough is shown to make it necessary for this plaintiff to prove the innocent character of the property before he can call upon the United States to respond to him in damages for the conduct of their military commander, upon whose vigilance they relied for safety. Believing, then, as General Butler did, that the property was con- traband, it was his duty to order it out of the ship, and to withhold her clearance until his order was complied with. He was under no obligation to return the bills of lading. The vessel was bound not to take out any contraband cargo. She took all the risks of this obliga- tion when she assumed it, and should have protected herself in her contracts with shippers against the contingency of being required to unload after the goods were on board. If she failed in this, the con- sequences are upon her, and not the United States. She was oper- ating in the face of war, the chances of which might involve her and her cargo in new complications. She voluntarily assumed the risks of her hazardous enterprise, and must sustain the losses that follow. Neither does it affect the case adversely to the United States that the property had gone on board without objection from the custom- house officers or the military authorities. It is not shown that its BETWEEN THE UNITED STATES AND PRUSSIA 95 character was known to General Butler or the officers of the custom- house before it was loaded. The engagement of the vessel was not to leave until she had been cleared according to law, and that her clearance might be withheld until with reasonable diligence it could be ascertained that she had no contraband property on board. This is the legitimate effect of the provisions of the treasury regulations, entitling her to a license "upon satisfactory evidence" that she would "convey no persons, property, or information contraband of war, either to or from'' the port ; and requiring her not to leave until she had "a clearance from the collector of customs, according to law, showing no violation of 'the license.'' Her entry into the port was granted as a favor, not as a right, except upon the condition of assent to the temis imposed. If the collector of customs was to certify that the license she held had not been violated, it was his duty to inquire a? to the facts before he made the certificate. Every opportunity for the prosecution of this inquiry must be given. Under the circum- stances, the closest scrutiny was necessary. If, upon the examina- tion preliminary to the clearance, prohibited articles were found on board, there could be no certificate such as was required, until their removal. It would then be for the vessel to determine whether she would remove. the goods and take the clearance, or hold the goods and wait for some relaxation of the rules which detained her in port as long as she had them on board. General Butler only insisted upon her remaining until she removed the property. She elected to re- main. There was no time when her clearance would not have been granted if the suspected articles were unloaded. We are clearly of the opinion that there is no liability to this plain- tiff resting upon the United States under the general law of nations. 2. As to the treaty. The vessel was in port when the detention occurred. She had not broken ground, and had not commenced lier voyage. She came into the waters of the United States while an impending war was flagrant, under an agreement not to depart with contraband goods on board. The question is not whether she could have been stopped and detained after her voyage had been actually commenced, without compensation for the loss, but whether she could be kept from entering upon the voyage and detained by the United States within their own waters, held by force against a powerful rebellion, until she had complied 96 THE TREATIES OF 1785, 1799 AND 1828 with regulations adopted as a means of safety, and to. the enforce- ment of which she had assented, in order to get there. In our opin- ion, no provision of the treaties in force between the two Govern- ments interferes with the right of the United States, under tlie general law of nations, to withhold a custom-house clearance as a means of enforcing port regulations. Art. Xiri of the treat)' oi 1828 contemplates the establishment of blockades, and makes special provision for the government O'f the respective parties in case they exist. The vessels O'f one nation are bound to respect the blockades of the other. Clearly the United States had the right to exclude Prussian ^ vessels in cornmon with ihose of all other nations, from their ports altogether, by establish- ing and maintaining a blockade while subduing a domestic insurrec- tion. The right to exclude altogether necessarily carries with it the right of admitting through an existing blockade upon conditions, and of enforcing in an appropriate manner the performance of the con- ditions after admission has been obtained. It will not be contended that a condition which prohibits the taking out of contraband goods is unreasonable, or that its performance may not be enforced by re- fusing a clearance until it has been complied with. Neither, in the absence of treaty stipulations to the contrary, can it be considered unreasonable to require goods to be unloaded, if their contraband •character is discovered after they have gone on board. In the exist- ing treaties between the two Governments there is no such stipula- tions to the contrary. In the treaty of 1799, Art. VI is as follows : ■'That the vessels of either party, loading within the ports or jurisdic- tion of the other, may not be uselessly harassed or detained, it is agreed that all examinations of goods required by the laws shall be made before they are laden on board the vessel, and that there shall be no examination after." While other articles in the treaty of 1799 were revived and kept in force by that of 1828, this was not. The conclusion is irresistible, that the high contracting parties were un- willing to continue bound by such a stipulation, and, therefore, omit- ted it from their new arrangement. It would seem to follow, that, under the existing treaty, the power of search and detention for im- proper practices continued, in time of peace even, until the clearance had been actually perfected and the vessel had entered on her voyage. If this be the rule in peace, how much more important is it in war for the prevention of the use of friendly vessels to aid the enemy. BETWEEN THE UNITED STATES AND PRUSSIA 97 Art. XIII of the treaty of 1799, revived by that of 1828, evidently has reference to captures and detentions after a voyage has com- menced, and not to detentions in port, to enforce port regulations. The vessel must be "stopped'' in her voyage, not detained in port alone. There must be "captors;" and the vessel must be in a condi- tion to be "carried into port"' or detained from "proceeding" after she has been "stopped," before this article can become operative. Under its provisions the vessel "stopped" might "deliver out the goods supposed to be contraband of war," and avoid further "deten- tion." In this case there was no detention upon a voyage, but a re- fusal to grant a clearance from the port that the voyage might be commenced. The vessel was required to "deliver out the goods sup- posed to be contraband" before she could move out of the port. Her detention was not under the authority of the treaty, but in conse- quence of her resistance of the orders of the properly constituted port authorities, whom she was bound to obey. She preferred detention in port to a clearance on the conditions imposed. Clearly her case is not within the treaty. The United States, in detaining, used the right they had under the law of nations and their contract with the vessel, not one which, to use the language of the majority of the Court of Claims, they held under tlie treaty "by purchase" at a stipulated price. As we view the case, the claimant is not "entitled to any damages" as against the United States, either under the treaty with Prussia or by the general law of nations. The judgment of the Court of Claims is, therefore, reversed, and the cause remanded zinth directions to dismiss the petition. NORTP-I GERMAN LLOYD S. S. CO. v. HEDDEN, COLLECTORS [Same v. Magone, Collector] {Circuit Court, D. New Jersey. May 21, 1890) 1. Customs Duties— Construction of Laws — Tonnage Tax. Act Cong. June 26, 1884, sec. 14, which levies a duty of 3 cents per ton on all vessels "from any foreign port or place in North America, Central 143 Fed. Rep. 17. 98 THE TREATIES OF 1785, 1799 AND 1828 America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the Sandwich Islands, or Newfoundland," and a duty of 6 cents per ton on vessels from other foreign ports, does not entitle German vessels sailing from European ports to enter our ports on payment of a diity of 3 cents per ton, under the treaties of December 20, 1827, and May 1, 1828, which stipulate that the United States shall not grant any particular favor regarding com- merce or navigation to any other foreign nation which shall not immediately become common to Germany, since the discrimination contained in said act is merely geographical, and the 3-cent rate applies to vessels of all nations coming from the privileged ports. 2. Treaties — Effect of 'Inconsistent Act of Congress. Where an Act of Congress is in conflict with a prior treaty the Act must control, since it is of equal force with the treaty and of later date. 3. Constitutional Law — Commissioner of Navigation. Act Cong. July 5, 1884, sec. 3, which makes final the decision of the com- misioner of navigation on all questions "relating to the collection of tonnage tax, and to the refunding of such tax, when collected erroneously or il- legally," is constitutional. At Law. Samuel F. Bigelow and Henry C. Nevitt, for plaintiff. Howard W. Hayes, Asst. U. S. Dist. Att)'., for defendants. Wales, J. The plaintiff, a duly organized corporation under the laws of the Hanseatic Republic of Bremen, which is a part of the German empire, is the owner of a line of ocean steamships, plying regularly between the ports of Bremen and New York, and brings these actions, under section 2931, Rev. Stats. U. S., to recover the amount of certain tonnage dues, alleged to have been unlawfully col- lected from said ships during the period extending from June 26, 1884, to July 28, 1888, and while the defendants were successively collectors of customs at the last named port. The vessels cleared from Bremen for New York via Southampton, England, stopping at or near the latter place ternporarily, to discharge cargo and passengers, and to take on board additional cargo, passengers, and mails. The consignees of the vessels paid the dues, in every instance, under pro- test, and the plaintiff appealed to the Secretary of the Treasury, and finally, at the suggestion of the latter officer and with the concurrence of the department of justice, brought these actions toi determine the authority of the defendants. The right of the plaintiff to recover depends upon the following statement of the law and facts : Prior to BETWEEN THE UNITED STATES AND PRUSSIA 99 the Act of Congress of June 26, 1884, entitled "An Act to remove cer- tain burdens on the American merchant marine and encourage the American foreign carrying trade," tonnage tax was imposed upon German and all other vessels arriving in the United States from for- eign ports, at the rate of 30 cents per ton per annum, and up to July 1st, of that year, it had been collected in a lump sum for a year at a time. But section 14 of the Act of 1884 changed the rate and mode of collection as follows : That in lieu of the tax on tonnage of thirty cents per ton per annum heretofore imposed by law, a duty of three cents per ton, not to exceed in the aggregate fifteen cents per ton in any one year, is hereby imposed at each entry on all vessels which shall be entered in any port of the United States ffom any foreign port or place in North America, Central America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the Sand- wich Islands, or Newfoundland; and a duty of six cents per ton, not to exceed thirty cents per ton annum, is hereby imposed at each entry upon all vessels which shall be entered in the United States from any other foreign ports. 23 U. S. Stats. 57. This section was amended by section 11 of the Act of Congress of June 19, 1886, entitled "An Act to abolish certain fees," etc. 24 U. S. Stats. 81. The amendment consisted in adding the following words to those just quoted: Not, however, to include vessels in distress or not engaged in trade; provided, that the President of the United States shall suspend the collection of so much of the duty herein imposed on vessels entered from any foreign port as may be in excess of the tonnage and lighthouse dues, or other equivalent tax or taxes, imposed in said port on American vessels, by the Government of the foreign country in which such port is situated, and shall, upon the passage of this Act, and from time to time thereafter as often as it may become necessary, by reason of changes in the laws of the foreign countries above mentioned, indicate by procla- mation the ports to which such suspension shall apply, and the rate or rates of tonnage duty, if any, to be collected under such suspen- sion ; provided further, that such proclamation shall exclude from the benefits of the suspension herein authorized, the vessels of any foreign country in whose ports the fees or dues of any kind or nature imposed on vessels of the United States, or the import or export duties on their cargoes, are in excess of the fees, dues, or duties imposed on the vessels of the country in which such port is situated, or on the cargoes of such vessels ; and sections 4223 100 THE TREATIES OF 1785, 1799 AND 1828 and 4224 and so much of section 4219 of the Revised Statutes as conflict with this section are hereby repealed. Section 4219, title 48, chap. 3, Rev. Stats., referred to in the fore- going sub-proviso, provides that "nothing in this section shall be deemed * * * to impair any rights * * * under the law and treaties of the United States relative to the duty of tonnage vessels." Section 4227 of the same title and chapter is in these words : Nothing contained in this title shall be deemed in any wise to impair any rights and privileges which have been or may be ac- quired by any foreign nation under the laws and treaties of the United States, relative to the duty on tonnage of vessels, or any other duty on vessels. By article 9 of the treaty of December 20, 1827, between the United States and the Hanseatic Republics, "the contracting parties * * * engage mutually not to grant any particular favor to other nations, in respect of commerce and navigation, which shall not immediately become common to the other party." Public Treaties, 400. Article 9 of the Prussian-American treaty of May 1, 1828, (Public Treaties, 656,) contains a like stipulation. These treaties have been held by both the American and German Governments to be valid for all Ger- many. On the 26th of January, 1888, the President, in virtiie of the authority vested in him by section 11 of the Act of June 19, 1886, issued his proclamation, wherein, after reciting that he had received satisfactory proof that no tonnage or lighthouse dues, or any equi- valent tax or taxes whatever, are imposed upon American vessels entering the ports of the German Empire, either by the imperial Gov- ernment or by the Government of the German maritime states, and that vessels belonging to the United States are not required, in German ports, to pay any fee or due of any kind or nature, or any import duty higher or other than is payable by German vessels or their car- goes, did "declare and proclaim that from and after the date of this my proclamation shall be .suspended the collection of the whole of the duty of six cents per ton * * * upon vessels entered in the ports of the United States from any of the ports of the empire of Germany. n= * * and the suspension hereby declared and proclaimed shall icontinue so long as the reciprocal exemption of vessels belonging to citizens of the United States and their cargoes shall be continued in the said ports of the empire of Gemnany, and no longer." The com- BETWEEN THE UNITED STATES AND PRUSSIA 101 missioner of navigation, in his circular letter No. 19, dated February 1, 1888, and approved by the Secretary of the Treasury, addressed to the collectors of customs and others, decided that the President's proclamation does not apply to vessels v^^hich entered before the date cf the proclamation, and that only those German vessels "arriving directly from the port? of the German empire may be admitted imder the proclamation v/ithout the payment of the dues therein men- tioned." The commissioner of navigation claims authority to make this decision by virtue of section 3 of the Act of Congress of July 5, 1884, entitled "An Act to constitute a bureau of navigation in the Treasury Department," which reads as follows : That the commissioner of navigation shall be charged with the supervision of the laws relating to the admeasurement of vessels, and the assigning of signal letters thereto, and of designating their official number ; and on all questions oi ' interpretation, growing out of the execution of the laws relating to these sub- jects, and relating to the collection of tonnage tax, and to the refunding of such tax when collected erroneously or illegally, his decision shall be final. The plaintiff's vessels were German vessels, and on the 19th day of June, 1886, and thereafter until now, the Government of Germany exacted no tonnage tax or taxes whatever on vessels of the United States arriving in German ports. Upon this statement of the law and the facts, the plaintiff's coun- sel contend (1) that as to the dues collected between June 26, 1884, and June 19, 1886, the plaintifiE's vessels should not have been charged more than the lower rate of tonnage tax fixed by the Act of 1884, under the favored nation clause of the treaties, whereas the defend- ants charged six cents per ton ; (2) that the dues collected after the passage of the Act of June 19, 1886, and prior to the President's proc- lamation, were excessive, for the same reason; (3) that no tonnage tax whatever could be lawfully collected of the vessels of the plain- tiff, after the passage of the Act of June 19, 1886, because that Act went into effect immediately, and without waiting for the President's proclamation ; (4) that the act of July 5, 1884, in so far as it confers on the commissioner of navigation the power of deciding finally on all questions of. interpretation, growing out of the execution of the laws relating to the collection of tonnage tax, and the refund of the 102 THE TREATIES OF 1785, 1799 AND 1828 same when illegally or erroneously collected, is unconstitutional and void. As introductory to their argument, plaintiff's counsel referred to the policy of our Government in relation to the subject of navigation, which it is claimed has been from the beginning to establish entire reciprocity with other nations. The practice has been to ask for no exclusive privileges and to sfrant none, "but to offer to all nations and to ask from them entire reciprocity in navigation." 1 Kent, Comm. 34, note. This policy has been judicially recognized by the Supreme Court in OldMd v. Marriott, 10 How. 146; and it is asserted that Congress had it in view in enacting the Acts of 1884 and 1886, impos- ing the tonnage taxes. The review presented by counsel of the legis- lative and diplomatic correspondence touching this subject is histor- ically interesting and instmctive, and would be persuasive in the case of a doubtful meaning of an Act of Congress, but it cannot be held to affect the interpretation of laws which are plain and unambiguous in their terms. The questions before the court must be determined by the ordinary and well-settled rules applicable to the construction of and validity of statutes. Soon after the passage of the Act of June 26, 1884, claims were presented by the Government of Germany, and of other foreign powers, having similar treaty stipulations with the United States, in relation to navigation for the benefit of the three-cent rate of tax, under the favored nation clause. The claims having been referred to the Department of Justice, the attorney general, on the 19th of Sep- tember, 1886, gave the following opinion: The discrimination as to tonnage duty in favor of vessels -saiU ing from the regions mentioned in the act, and entered in our ports, is, I think," purely geographical in character, inuring to the advantage of any vessel of any power that may choose to fetch and carry between this country and any port embraced by the fourteenth section of the Act. I see no warrant, therefore, to claim that there is anything in the most "favored nation clause" of the treaty between this country and the powers mentioned that en- titles them to have the privileges of the fourteenth section ex- tended to their vessels sailing to this country from ports outside of the limitations of the act. The construction thus given to the statute is clearly consistent with its terms, which grant the privilege of the minimum tax to all vessels entered in United States from certain specified foreign ports, and not BETWEEN THE UNITED STATES AND PRUSSIA 103 exclusively to the vessels of nations to whom those ports belong, or in whose territories the ports are situate, ' excepting the vessels of those governments only which, in the imposition of tonnage taxes, discriminate against American vessels. In accordance with this con- struction, it follows that no particular favor is conferred on any nation, and that, with the exception noted, the vessels of all nations coming from the privileged ports are entered in the United States on an equal footing. Further discussion on this point would seem, therefore, to be fruitless; but it may be proper to observe that the construction of both the act of June 26, 1884, and that of June 19, 1886, and the complicated questions growing out O'f the claims of foreign governments, for the lower rate of tonnage tax by virtue of their treaty rights, were -brought to the attention of congress by the President's message of January 14, 1889, transmitting a report of the Secretary of State in reference to the international questions arising from the imposition of differential tonnage dues upon vessels enter- ing the United States from foreign coimtries. Ex. Doc-House Rep., .50th Cong., 3d Sess. The report, after mentioning the claims of the German minister for -a reduction of the tax under the Act of 1884, and for a proper refund of the dues charged on German ships enter- ir.g the United States from German ports since the date of the act of 1886, stated : "To this suggestion the undersigned was unable to respond, the matter being one for the consideration of Congress. But the request assuredly deserves equitable consideration." In respect to the claim now made bv the plaintiff, that the course of its ships com.ing from Bremen to New York by the way of Southampton is not such as to deprive the run of its character of a voyage from a Ger- man port to a port in the United States, within the meaning of the Act of 1886, the report says : But it has been held by the commissioner of navigation that the voyage can not be so regarded, and that the vessels must pay dues as coming from Southampton, a British port. Similar rul- ings have been made in respect to other vessels of dififerent na- tionality. And the report further adds : Another instance of complication is that of a vessel starting from, we will say, a 6-30 cent port, and calling on her way to 104 THE TREATIES OF 1785, 1799 AND 1828 the United States at a 3-15 cent port, and a free port. Other combinations will readily suggest themselves, and the need not be stated. But in each case the vessel is required to pa}' the highest rate, without reference to the amount of cargo obtained at the various ports from which she comes. Thus a penalty may practically be imposed in many cases on indirect voyages. It is conceived that in many instances the main purpose of the Act may be defeated by these rulings, but it must be admitted that the law contains no provision to meet such cases. * * * This appears to be a proper subject for the consideration of Congress. From an examination of the above extracts from his report, it will be seen that the Secretary of State was of the opinion that the ques- tions referred to were to be addressed to the political, and not to the judicial, branch of the government, and that Congress alone could be looked to for the redress of the class of .wrongs complained of by the plaintiff, and to prevent their repetition. The plaintiff's counsel deny the correctness of the construction given to the act of 1884 by Ihe attorney general, and insist that the difference in tonnage rates, by which certain ports specially named in the act are favored, is a particular favor to the countries to which those ports belong, "in respect to their commerce and navigation" which ipso facto accrues, in pursuance of treaty right, to German vessels coming from German ports. It is also asserted that the treaty stipulations with Germany are paramount to the later Acts of Congress, and that the former can not be annihilated by the latter. Admitting for the moment that the attorney general may have misconstrued the Act, still it cannot be questioned that, excepting where rights have become vested tinder a treaty, to use the expression of Judge Swayne, in the Cherokee To- bacco Case, 11 Wall. 616, "a treaty may supersede a prior Act of Con- gress and an Act of Congress may supersede a prior treaty." The commissioner of navigation held that the Acts of 1884 and 1886 were inconsistent with the treaties, and being of a later date must prevail, and in so ruling he is' not without authority of adjudged cases. In Foster v. Neilson, 2 Pet. 314, Chief Justice Marshall, in delivering the opinion of the court, said: Our constitution declares a treaty to be a law of the land. It is consequently to be regarded in the courts of justice as equiva- lent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the BETWEEN THE UNITED STATES AND PRUSSIA 105 terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial, department and the legis- lature must execute the contract before it can become a rule for the court. The same doctrine is held in Taylor v. Morton, 2 Curt. 454; Ropes V. Clinch, 8 Blatchf. 304. In the Cherokee Tobacco Case, supra, there was an open conflict between a treaty contract and a subsequent law, and the question was as to which should prevail. The 107th section of the Internal Revenue Act of July 20, 1868, provided "that the internal revenue laws imposing taxes on distilled spirits, fer- mented liquors, tobacco, snuff, and cigars shall be construed to ex- tend to such articles produced anywhere within the exterior boun- daries of the United States, whether the same be within a collection district or not." The tenth article of the treaty of 1866 between the United States and the Cherokee Nation of Indians stipulated as fol- lows : Every CherO'kee Indian and freed person residing in the Cherokee Nation shall have the right to sell any products of his farm, including his or her livestock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying the tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian Territorj'. The collection officers had seized a quantity of tobacco belonging to the claimants which was found in the Cherokee Nation, outside of any collection District of the United States, and exemption from duty was claimed by virtue of the treaty. It was admitted that the reptignancy between the treaty and the statute was clear, and that they could not stand together ; that one or the other must yield. The court decided that the language of the section was as clear and explicit as could be employed. It embraced indisputably the Indian Territory, and congress not having thought proper to exclude them, it was not for the court to make the exception; and that the conse- quences arising from the repeal of. the treaty were matters for legis- lative and not judicial action, and if a wrong had been done, the power of redress was with congress and not with the judieiai-y. In Taylor v. Morton, the facts were these: Article 6 of the treaty of 106 THE TREATIES OF 1785, 1799 AND 1828 1832, with Russia, stipulated that "no higher or other duties shall be imposed upon the importations into the United States of any article the produce or manufacture of Russia, than are or shall be payable on the like article being the produce or manufacture of any other for- eign country." This was held by the court to be merely an agree- ment, to be carried into effect by Congress, and not to be enforced by the court, and that an Act of Congress laying a duty of $25 a ton, on hemp from India, and $40 a ton, on hemp from other countries, did not authorize the courts to decide that Russian hemp should be ad- mitted at the lower rate. Such a promise, it was said, addresses it- self to the political and not to the judicial department of the Govern- ment, and the courts can not try the question whether it has Ibeen observed or not. The court expressly declined to give any opinion on the merits of the case, holding that the questions, whether treaty obligations have been kept or not, and whether treaty promises shall be withdrawn or performed, are matters that belong to diplomacy and legislation, and not to the administration of the laws. If Congress has departed from the treaty, it is immaterial to inquire whether the departure was accidental or designed, and if the latter whether the reasons therefor were good or bad. If, by the act in question, they have not departed from the treat)^, the plaintiff has nO' case. .If they have, their act is the munici]Dal law of the country, and any complaint, either by the citizen or the foreigner, must be made to those who alone are empowered by the constitution to judge of its groxuids and act as may be suitable and just. As to the time when the Act of June 19, 1886, went into operation, whether immediately from and after the date of its approval, or not until the date of the President's proclamation, and also whether the voyages of the plaintiff's Vessels from Bremen to New York must be made "directly," and without stoppage at an intermediate port, in order to be exempted from the imposition and payment of tonnage dues, the decision of these questions by the commissioner of naviga- tion must be held to be conclusive, unless so much of section 3 of the act of July 5, 1884, which makes his decision final in such matters, is unconstitutional. Much learning and ability have been employed by plaintiff's counsel to establish the invalidity of this portion of the act, which invests a department officer with such unlimited judicial power, and by which he is enabled to decide all contests in relation to alleged illegal dues, ex parte, and absolutely. On the other hand, the BETWEEN THE UNITED STATES AND PRUSSIA 107 labor and responsibility of the court have been increased by the omis- sion of the defendant's counsel to furnish any assistance towards the solution of the questions, and permitting them to pass sub silentio. The subject, however, is not res Integra. In Cary v. Curtis, 3 How. 236, the supreme court had under consideration the constitutionality of the third section of the act of congress of March 3, 1839, entitled ."An Act making appropriations for the civil and diplomatic expenses of the Government for the year 1839," by which the Secretary of the Treasury was authorized to finally decide when more duties had been paid to any collector of customs, or to any person acting as such, than the law required, and to draw his warrant in favor of the per- son or persons entitled for a refund of the amounts so overpaid. The opinion of the court discusses very ably and at much length the ques- tions involved in that case. A few sentences taken from the opinion will indicate the grounds upon which the validity of the Act of 1839 was sustained: We have no^ doubt [say the court] of the objects or the import of that act. We can not doubt that it constitutes the Secretary of the Treasury the source whence instructions are to flow ; tha't it controls both the position and the conduct of the collectors of the revenue; that it has denied to them any right or authority to retain any portion of the revenue for purposes of contestation or indemnity ; has ordered and declared those collectors to be the mere organs of receipt and transfer, and has made the head of the treasury department the tribunal for the examination of claims for duties said to have been improperly paid. * * * It is contended, however, that the language and the purpoises of Congress, if really what we hold them to be declared in the statute of 1839, can not be sustained, because they would be re- pugnant to the constitution, inasmuch as they would debar the citizen of his right to resort to the courts oi justice. * * * The objection above referred to admits of the most satisfactory refutation. This may be found in the following positions, familiar in this and in most other governments, viz., that the Govern- ment, as a general rule, claims an exemption from being sued in its own courts. That, although, as being charged with the ad- ministration of the laws, it will resort to those courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and express excep- tions. Secondly, in the doctrine, so often ruled in this court, that the judicial power of the United States, although it has its origin in the constitution, is (except in enumerated instances, ap- 108 THE TREATIES OF 1785, 1799 AND 1828 plicable exclusively to this court ) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the former powei-s limited by its own discretion merely. It follows, then, that the courts created by statute must look to the statute as the warrant for their author- ity. * * * The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law. * * * The courts of the United States can take cognizance only of sub- jects assigned to them expressly or by necessary implication; a fortiori, they can take nO' cognizance of matters that by^ law are either denied to them, or expressly referred qd aliud examen. This exposition of the origin and extent of the jurisdiction of the courts of the United States was reaffirmed in Sheldon v. Sill, S How. 449, where it was held that courts created by statute can have no jurisdiction but such as the statute confers. The right given by section 2931, Rev. Stat., to sue for overpaid dues is taken away by the Act of July 5, 1884, and the power to determine controversies arising from alleged exactions by collectors is deposited with the commissioner of navigation. Such is the effect of the decisions just cited, and which, as long as they are not overruled by the tribunal which made them, must be obeyed as the law of the land. The au- thorities referred to by plaintiff's counsel are cases where department officers, in making regulations toi be observed by their subordinates, exceeded their statutory power, but in no one instance was it pre- tended that the officer was clothed with the power to make a final decision in contested matters. It was perhaps unnecessary, in view of Cary v. Cii/rtis, and Sheldon v. Sill, that I should have done more than acquiesce in the doctrines there announced, and support the val- idity of the act of July 5, 1884, without further discussion, but the large amount of money involved in the present actions, and the earn- estness and force with which the plaintiff's claims have been pressed, have induced me to make a more extended presentation of them than was at first designed. It must be borne in mind that this court is BETWEEN THE UNITED STATES AND PRUSSIA 109 not called on to express any opinion on the justice or expediency of placing such unlimited power in the hands of the commissioner of navigation as is conferred by the act of July 5, 1884. The duty of the court is to discover whether the act is in conflict with the consti- tution, and, on being satisfied that it is not, to judge accordingly. To pursue any other course would be not only extrajudicial, but also im- proper, in assuming to criticise the wisdom of Congress in making the law. Neither is the court required to say whether the commissioner of navigation is or is not correct in his interpretation of the law. Congress has seen fit to constitute him the final arbiter in certain dis- putes, and congress alone can supply a remedy for any wrong which may have arisen from his construction of the law relating to the col- lection of tonnage due. T.et judgment be entered in each case for the defendant. DISCONTO GESELLSCHAFT v. UMBREIT ^ Error to the Circuit Court of Milwaukee County (Branch No. 1) State of Wisconsin No. 63. Argued December 10, 11, 1907. Decided February 24, 1908. It is too late to raise the Federal question on motion for rehearing in the state court, unless that court entertains the motion and expressly passes on the Federal question. While aliens are ordinarily permitted to resort to our courts for redress of wrongs and protection of rights, the removal of property to another juris- diction for adjustment of claims against it is a matter of comity and not of absolute right, and, in the absence of treaty stipulations, it is within the power of a State to determine its policy in regard thereto. The refusal by a State to exercise comity in such manner as would impair the rights of local creditors by removing a fund to a foreign jurisdiction for administration does not deprive a foreign creditor of his property without due process of law or deny to him the equal protection of the law ; and so held as to a judgment of the highest court of Wisconsin holding the attach- ment of a citizen of that State superior to an earlier attachment of a for- eign creditor. 1208 U. S. 570. no THE TREATIES OF 178S, 1799 AND 1828 While the treaty of 1828 with Prussia has been recognized as being still in force by both the United States and the German Empire, there is nothing therein undertaking to change the rule of national comity that permits a country to first protect the rights of its own citizens in local property before permitting it to be taken out of its jurisdiction for administration in favor of creditors beyond its borders. 127 Wisconsin, 676, affirmed. The facts are stated in the opinion. Mr. F. C. JVinkler for plaintiff in error: The Federal questions on both points were brought before the Supreme Court of the State and claim made under them in the argu- ment for rehearing. The motion was denied and opinion rendered expressly overruling the claim based on the treaties and by necessary implication, also the claim based on the Constitution of the United States. The rulings upon them are therefore subject to review. McKay v. Kalyton, 204 U. S. 458; Leigh v. Green, 193 U. S. 79; Columbia Water Power Co. v. Columbia Street Railway Co., 172 U. S. 465. The plaintiff's suit was brought under the statutes of Wisconsin. The defendant was in Wisconsin. The property attached had been brought by him and placed on deposit in the State of Wisconsin. No court in the world could exercise jurisdiction either over his person or over his property except the courts of Wisconsin. No statute debars an alien from seeking justice in Wisconsin courts where the protection of his rights requires it. The plaintiff is denied the benefit of the proceedings and of its judgment because being a foreigner it has no rights in the State of Wisconsin except such as "comity," which is "good nature," will ac- cord it. Even under the ruling of the state court that the right of the plaintiff to pursue its absconding debtor into this country and to invoke the latter's remedial processes against him rests upon the comity, it is, however, the comity of the sovereignty, not of the court. Wharton, Conflict of Laws, Sec. la. Comity can not be given or withheld at will. Civilization demands its exercise where justice requires it. It can not be denied, in whole or in part, except on clear, clean principles of justice. Under the treaty between the United States and the Kingdom of Prussia, made in 182S, if a proper and liberal interpretation be given thereto, the plaintiff in error is entitled tO' the same standing' in court BETWEEN THE UNITED STATES AND PRUSSIA HI as a citizen of the United States would be in a like case. Public Treaties (Govt. Printing Office, 1875), p. 656; Tucker v. Alexandroff, 183 U. S. 424, 437. I'he cases cited by the Supreme Court of Wis- consin, viz.: Eingartner v. Illinois Steel Co., 94 Wisconsin, 70; Gardner v. Thomas, 14 Johnson, 134; Johnson v. Dalton, 1 Cowen, 543 ; DelVitt v. Buchanan, 54 Barb. 31 ; Olsen v. Schierenberg, 3 Daly, 100; Burdick v. Freeman, 120 N. Y. 421, can easily be distinguished from the case at bar. The state court erred in stating that plaintiff sues as the agait of a foreign trustee in bankruptcy. That trustee has and claims no rights to the bankrupt's property in Wisconsin. Foreign law does not oper- ate on property beyond, its jurisdiction. Segnitz v. G. C. Banking & Trust Co., 117 Wisconsin, 171, 176. The property in question was not transferred toi the trustee and that left its legal title in the debtor. The plaintiff being a creditor brought suit on his own claim in his own right. The circumstance that the creditor after suit commenced promised to turn over the proceeds he should recover to the trustee for distribu- tion does not impair his rights as a creditor. The course of the plaintiff in no way "sets at naught" the rule of our law that the trustee in bankruptcy does not obtain title to property in Wisconsin by reason of the proceedings in Germany. No claim is made on this score in the intervenor's answer. The decision of the Supreme Court of Wisconsin deprives the plain- tiff of its property rights without due process of law, in violation of the Constitution of the United States. The judgment which the intervenor obtained, although in the form of the statute, is in point of fact no better than an e^ parte affidavit. The defendant was to the intervenor's knowledge a prisoner in Ger- many. The only notice given was by publication of the summons in a Milwaukee paper. No copy of the summons and complaint was ever mailed to the defendant as required by Sec. 2640, Statutes of Wisconsin. The defendant Terlinden, when the intervenor's suit was com- menced against him, had not the slightest interest in the property sought to be reached. All his interest had passed to the plaintiff. The plaintiff was the only party adversely interested to the intervenor. It had an adjudicated lien good against all the world (except the claim of the intervenor). 112 THE TREATIES OF 1785, 1799 AND 1828 An alien, too, is entitled to due process of law under the Constitu- tion of the United States. In re Ah Fung, 3 Sawyer, 144; Ah Kow V. Nunan, 5 Sawyer, 562 ; In re Ah Chung, 2 Fed. Rep. 7ii. The judgment against Terlinden was, as against this plaintiff, ab- solutely without process of law. It adjudicated nothing. The plain- tiff was not a party therein, nor was it notified, and it had no oppor- tunity to defend against it. Mr. Joseph B. Doe for defendant in error: Domestic creditors will be protected to the extent of not allowing the property or funds of a non-resident debtor to be withdrawn from the State before domestic creditors have been paid. Every country will first protect its own citizens. Catlin v. Silver Plate Co., 123 In- diana, 477; Chafey v. Fourth Nat. Bank, 71 Main, 414, 524; Bagby V. Railway Co., 86 Pa. St. 291 ; Lycoming Fire Ins. Co. v. Wright, 55 Vermont, 526; Thruston v. Rosenfelt, 42 Missouri, 474; Willitts V. Waite, 25 1>t. y. 577. Citizens and residents of the country where insolvency proceedings have been instituted are bound by such proceeding's and can not pur- sue the property of the insolvent debtor in another country. Cole v. Cunningham, 133 U. S. 107; Linville v. Hodden, 88 Maryland, 594; Chafey v. Fourth Nat. Bank, supra; Finer v. Beste, 32 Missouri, 240; Long V. Girdwood, ISO Pa. St. 413 ; Bacon v. Home, 123 Pa. St. 452. A creditor, by proving his claim in bankruptcy or any insolvency proceedings, submits to the jurisdiction of the court in which the pro- ceeding is pending and can not pursue his remedy elsewhere. Clay v. Smith, 3 Peters, 411 ; Cooke v. Coyle, 113 Massachusetts, 252; Ormsby V. Dearborn, 116 Massachusetts, 386; Batchelder v. Batchelder, 77 N. H. 31; Wilson v. Capuro, 41 California, 545; Wood v. Hazen, 10 Hun. 362. Where both parties, plaintiff and defendant, are residents of a for- eign State, the plaintiff can not come into our country and obtain an advantage by our law which he could not obtain by his own. If he seeks to nullify the law of his own State and asks our courts to aid him in so doing, he can not have such assistance, if for no other reason than that it is forbidden by public policy and the comity which exists between states and nations, which comity will always be enforced when it does not conflict with the rights of domestic citizens. Bacon v. Home, supra; In re Waite, 99 N. Y. 433 ; Bagby v. Railway Co., supra. BETWEEN THE UNITED STATES AND PRUSSIA 113 Citizens of a foreign State or country will not be aided by the cburts of this country to obtain, by garnishment, a preference of their claims against a foreign debtor, in disregard of proceedings in their own country for the sequestration of the debtor's estate and the ap- pointment of a trustee thereof in bankruptcy.- Long v. Girdwood, supra. It is the uniform rule and doctrine of all courts that the principles of comity do not require that courts confer powers upon a foreign receiver or trustee in bankruptcy or permit him to bring and main- tain actions in this State that interfere with and innpair the rights of domestic creditors. Humphreys v. Hopkins, 81 California, 551 ; Ward V. Pac. Mutual Life Ins. Co., 135 California, 235 ; Hunt v. Columbian Ins. Co., 55 Maine, 290; Pierce v. O'Brien, 129 Massachusetts, 314; Rogers v. Riley, 80 Fed. Rep. 759 ; Catlin v. Wilcox Silver Plate Co., 123 Indiana, 477. Mr. Justice Day delivered the opinion of the court. The Disconto Gesellschaft, a banking corporation of Berlin, Ger- many, began an action in the Circuit Court of Milwaukee County, Wisconsin, on August 17, 1901, against Gerhard Terlinden and at the same time garnisheed the First National Bank of Milwaukee. The bank appeared and admitted an indebtedness to Terlinden of $6,420. The defendant in error Umbreit intervened and filed an answer, and later an amended answer. A reply was filed, taking issue upon certain allegations of the answer, and a trial was had in the Circuit Court of Milwaukee Count}', in which the court found the following facts : That on the 17th day of August, 1901, the above-named plain- tiff,' the Disconto Gesellschaft, commenced an action in this court against the above-named defendant, Gerhard Terlinden, for the recovery of damages sustained by the tort of the said defen- dant, committed in the month of May, 1901 ; that said defendant appeared in said action by A. C. Umbreit, his attorney, on August 19, 1901, and answered the plaintiff's complaint; that there- after such proceedings were had in said action that judgment was duly given on February 19, 1904, in favor of said plaintiff, Dis- conto Gesellschaft, and against said defendant, Terlinden, for $94,145.11 damages and costs; that $85,371.49, with interest from March 26, 1904, is now due and unpaid thereon ; that at the time of the commencement of said action, to wit, on August 17, 1901, process in garnishment was served on the above-named garnishee, 114 THE TREATIES OF 178S, 1799 AND 1828 First National Banis of Milwaukee, as garnishee of the defendant Terlinden. That on August 9, 1901, and on August 14, 1901, a person giv- ing his name as Theodore Grafe deposited in said First National Bank of Milwaukee the equivalent of German money aggregating $6,420.00 to his credit upon account; that said sum has remained in said bank ever since, and at the date hereof with interest ac- crued thereon amounted to $6,969.47. That the defendant Gerhard Terlinden and said Theodore Grafe, mentioned in the finding, are identical and the same person. That the interpleaded defendant, Augustus C. Umbreit, on March 21, 1904, commenced an action in this court against the defendant Terlinden for recovery for services rendered between August 16, 1901, and February 1, 1903; that no personal service of the' summons therein was had on the said summons therein was served by publication only and without the mailing of a copy O'f the summons and of compjaint to said defendant ; that said de- fendant did not appear therein; that on June 11, 1904, judgment was given in said action by default in favor of said Augustus C. Umbreit and against said defendant Terlinden for $7,500 dam- ages, no part whereof has been paid; that at the time of the commencement of said action process of garnishment was served, to wit, on March 22, 1904, on the garnishee, First National Bank O'f Milwaukee, as garnishee of said defendant Terlinden. That the defendant Terlinden at all the times set forth in finding number one was and still is a resident of Germany; that about July 11, 1901, he absconded from Germany and came to the State oi Wisconsin and assumed the name of Theodore Grafe; that on August 16, 1901, he was apprehended as a fugi- tive from justice upon extradition proceedings duly instituted against him, and was thereupon extradited to Germany. That the above-named plaintiflf, the Disconto Gesellschaft, at all the times set forth in the findings was, ever since , has been and Still is a foreign corporation, to wit, of Germany, and during all said time had its principal place of business in Berlin, Ger- many; that the above-named defendant, Augustus C. Umbreit, during all said times was and still is a resident of the State of Wisconsin. That on or about the 27th day of July, 1901, proceedings in bankruptcy were instituted in Germany against said defendant Terlinden, and Paul Hecking appointed trustee of his estate in such proceedings on said date; that thereafter, and on or after August 21, 1901, the above-named plaintiff, the Disconto Gesell- schaft, was appointed a member of the committee of creditors of the defendant Terlinden's personal estate, and accepted such ap- BETWEEN THE UNITED STATES AND PRUSSIA 115 pointment; and that the above-named plaintiff, the Disconto Gesellschaft, presented its claim to said trustee in said bank- ruptcy proceedings ; that said claim had not been allowed by said trustee in January, 1902, and there is no evidence that it has since been allowed ; that nothing has been paid upon said claim ; that said claim so presented and submitted is the same claim upon which action was brought by the plaintiff in this court and judgment given, as set forth in finding No. 1 ; that said action was instituted by said plaintiff, the Disconto Gesellschaft, through the German consul in Chicago ; and that the steps so taken by the plaintiff, the Disconto Gesellschaft, had the con- sent and approval of Dr. Paul Heckirug as trustee in Bankruptcy, so appointed in the bankruptcy proceedings in Germany, and that after the commencement of the same the plaintiff, the Disconto Gesellschaft, agreed with said trustee that the moneys it should recover in said action should form part of the said estate in bankruptcy and be handed over to said trustee; that, among other provisions, the German bankrupt act contained the following: "Sec. 14, Pending the bankruptcy proceedings, neither the assets nor any other property of the bankrupt are subject to attachment or execution in favor of individual creditors." Upon the facts thus found the Circuit Court rendered a judgment giving priority to the levy of the Disconto^ Gesellschaft for the satis- faction oi its judgment out of the fund attached in the hands of the bank. Umbreit then appealed to the Supreme Court of Wisconsin. That court reversed the judgment of the Circuit Court, and directed judgment in favor of Umbreit, that he recover the sum garnisheed in the bank. 127 V^''isco■^sin, 651. Thereafter a remittitur was filed in the Circuit Court of Milwaukee County and a final judgment rendered in pursuance of the direction of the Supreme Court of Wisconsin. This writ of error is prosecuted to reverse that judgment. At the same time a decree in an equity suit, involving a fund in another bank, ■was reversed and remanded to the Circuit Court. This case had been heard, by consent, with the attachment suit. With it we are not con- cerned in this proceeding. No allegation of Federal rights appeared in the case until the ap- plication for rehearing. In, this application it was alleged that the effect of the proceedings in the state court was to deprive the plain- tiff in error of its property without due process of law, contrary to the Fourteenth Amendment, and to deprive it of certain rights and privi- leges guaranteed to it by treaty between the Kingdom of Prussia and 116 THE TREATIES OF 1785, 1799 AND 1828 the United States. The Supreme Court of Wisconsin, in passing upon the petition for rehearing and denying the same, dealt only with the alleged invasion of treaty rights, overruling the contention of the plaintiff in error. 127 Wisconsin, 676. It is well settled in this court that it is too late to raise Federal questions reviewable here by mo- tions for rehearing in the state court. Pirn v. St. Louis, 165 U. S. 273 ; Fidlerton v, Texas, 196 U. S. 192 ; McMillen v. Ferrum Mining Com- pany, 197 U. S. 343, 347; French v. Taylor, 199 U, S. 274, 278. An exception to this rule is found in cases where the Supreme Court of the State entertains the motion and expressly passes upon the Federal question. Mallett v. North Carolina, 181 U. S. 589; Leigh v. Green, 193 U. S. 79. Conceding that this record sufficiently shows that the Suprem.e Court heard and passed upon the Federal questions made upon the motion for rehearing, we will proceed briefly to consider them. The suit brought by the Disconto Gesellschaft in attachment had for its object to subject the fund in the bank in Milwaukee to the payment of its claim against Terlinden. The plaintifif was a German corporation and Terlinden was a German subject. Umbreit, the in- tervenor, was a citizen and resident of Wisconsin. The Supreme Court of Wisconsin adjudged that the fund attached could not be sub- jected to the payment of the indebtedness due the foreign corporation as against the claim asserted to the fund by one of its own citizens, although that claim arose after the attachment by the foreign creditor ; and, further, that the fact that the effect of judgment in favor of the foreign corporation would be, imder the facts found, to remove the fimd to a foreign country, there to be administered in favor of foreign creditors, was against the public policy of Wisconsin, which forbade such discrimination as against a citizen of that State. Alien citizens, by the policy and practice of the courts of this coun- try, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights. 4 Moore, International Law Digest, § 536, p. 7; Wharton on Conflict of Laws, § 17. But what property may be removed from a State and subjected to the claims of creditors of other States, is a matter of comity between nations and states and not a matter of absolute right in favor of creditors of another sovereignty, when citizens of the local state or country are asserting rights against property within the local juris^ diction. BETWEEN THE UNITED STATES AND PRUSSIA 117 " 'Comity,' in the legal sense," says Mr. Justice Gray, speaking for this court in Hilton v. Guyat, 159 U. S. 113, 163, "is neither a matter of absolute obligation on the one hand nor of mere courtesy and good-will upon the other. But it is the recognition which one nation allows in its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and con- venience, and to the rights of its own citizens or of other persons who are under the protection of its laws." In the elaborate examination of the subject in that case many cases are cited and the writings of leading authors on the subject exten- sively quoted as to the nature, obligation and extent of comity be- tween nations and states. The result of the discussion shows that how far foreign creditors will be protected and their rights enforced depends upon the circumstances of each case, and that all civilized nations have recognized and enforced the doctrine that international comity does not require the enforcement oi judgment in such wise as to prejudice the rights of local creditors and the superior claims of such creditors to assert and enforce demands against property within the local jurisdiction. Such recognition is not inconsistent with .that moral duty to respect the rights of foreign citizens which inheres in the law of nations. Speaking of the doctrine of comity, Mr. Justice Story says: "Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasion on which its exercises may be justly demanded." Story on Conflict of Laws, § 33. The doctrine of comity has been the subject of frequent discussion in the courts of this country when it has been sought tO' assert rights accruing under assignments for the benefit of creditors in other States as against the demands of local creditors, by attachment or otherwise in the State where the property is situated. The cases were reviewed by Mr. Justice Brown, delivering the opinion of the court in Security Trust Company v. Dodd, Mead & Co., 173 U. S. 624, and the conclu- sion reached that voluntary assignments for the benefit of creditors should be given force in other States as to property therein situate, except so far as they come in conflict with the rights of local creditors, or with the public policy of the State in which it is sought to be en- forced ; and, as was said by Mr. Justice McLean in Oakey v. Bennett, 11 How. 33, 44, "national comity does not require any government to give effect to such assignment [for the benefit of creditors] when it shall impair the remedies or lesson the securities of its own citizens." 118 THE TREATIES OF 1785, 1799 AND 1828 There being, then, no provision of positive law requiring the recog- nition of the right of the plaintiff in error toi appropriate property in the State of Wisconsin and subject it to distribution for the benefit of foreign creditors as against the demands of local creditors, how far the public pohcy of the State permitted such recognition was a matter for the State to determine for itself. In determining that the policy of Wisconsin would not permit the property to be thus appro- priated to the benefit of alien creditors as against the demands of the citizens of the State, the Supreme Court of Wisconsin has done no more than has been frequently done by nations and states in refusing to exercise the doctrine of comity in such wise as to impair the right of local creditors to subject local property to their just claims. We fail to perceive how this application of a well known rule can be said to deprive the plaintiff in error of its property without due process of law. Upon the motion for rehearing the plaintiff in error called attention to two alleged treaty provisions between the United States and the kingdom of Prussia, the first from the treaty of 1828, and the second from the treaty of 1799. As to the last mentioned treaty the follow- ing provision was referred to: Each party shall endeavor by all the means in their power to protect and defend all vessels and other effects belonging to the citizens or subjects of the other, which shall be within the extent of their jurisdiction by sea or by land. The treaty of 1799 expired by its own terms on June 2, 1810, and the provision relied upon is not set forth in so much of the treaty as was revived by article 12 of the treaty of May 1, 1828. See Com- pilation of Treaties in Force, 1904, prepared under resolution of the Senate, pp. 638 et seq. If this provision of the treaty of 1799 were in force we are unable to se^ that it has any bearing upon the present case. Article one of the treaty of 1828 between the kingdom, of Prussia and the United States is as follows : There shall be between the territories of the high contracting parties a reciprocal liberty of commerce and navigation. The in- habitants of their respective states shall mutually have liberty to enter the ports, places and rivers of the territories of each party BETWEEN THE UNITED STATES AND PRUSSIA 119 wherever foreign commerce is permitted. They shall be at Hb- erty to sojourn and reside in all parts whatsoever of said terri- tories, in order to attend to their affairs; and they shall enjoy, to that effect, the same security and protection as natives of the country wherein they reside, on condition of their submitting to the laws and ordinances there prevailing. This treaty is printed as one of the treaties in force in the compila- tion of 1904, 'p. 64.3, and has undoubtedly been recognized by the two governments as still in force since the formation of the German Empire. See Terlinden v. Ames, 184 U. S. 270; Foreign Relations of 1883, p. 369; Foreign Relations of 1885, pp. 404, 443, 444; Foreign Relations of 1887, p. 370; B'oreign Relations of 1895, part one, 539. Assuming, then, that this treaty is still in force between the United States and the German Empire, and conceding the rule that treaties should be liberally interpreted with a view to protecting the citizens of the respective countries in rights thereby secured, is there any- thing in this article which required any different decision in the Su- preme Court of Wisconsin than that given? The inhabitants of the respective countries are to be at liberty to sojourn and reside in all parts whatsoever of said territories in order to attend to their affairs, and they shall enjoy, to that effect, the same security and protection as the natives of the country wherein they reside, upon submission to the laws and ordinances there prevailing. It requires very great in- genuity to perceive anything in this treaty provisioir applicable to the present case. It is said to be found in the right of citizens of Prussia to attend to their affairs in this country. The treaty provides that for that purpose they are to have the same security and protection as natives in the country wherein they reside. Even between States of the American Union, as shown in the opinion of Air. Justice Brown in Security Trust Co. v. Dodd, Mead & Co., 173 U. S. supra, it has been the constant practice not to recognize assignments fo>r the benefit of creditors outside the State, where the same came in conflict with the rights of domestic creditors- seeking to recover their debts against local property. This is the doctrine in force as against natives of the country residing in other states, aijd it is this doctrine which has been applied by the Supreme Court of Wisconsin to foreign creditors re- siding in Germany. In short, there is nothing in this treaty under- taking to change the well-recognized rule between states and nations 120 THE TREATIES OF 1785, 1799 AND 1828 which permits a country to first protect the rights of its own citizens in local property before permitting it to be taken out of the jurisdic- tion for administration in favor of those residing beyond their borders. The judgment of the Circuit Court of Milwaukee County entered upon the remittitur from the Supreme Court of Wisconsin is Affirmed. CASE OF THE APPAM^ Supreme Court of the United States Nos. 650 and 722.— October Term^ 1916 Hans Berg, Prize Master in Charge of the\ Prize Ship Appam, and L. M. von Schilling, Vice-Consul of the German i . , j. ^, tn- "' ,, / Appeals from the Dis ^_£mpn-e, Appellants^ trict Court of the T^ ■ • , D A r • o.' AT • .L- r- ) United States for the British & African Steam Navigation Co./ „ ^ t->- ^ • ^ r Eastern Distnct of bame, \ -,-,... .,^„ I Virginia. 722 vs. ' * Henry G. Harrison, Master of the Steam- ship Appam. [March 6, 1917.] Mr. Justice Day delivered the opinion of the Court. These are appeals from the District Court of the United States for the Eastern District of Virginia, in two admiralty cases. No. 650 was brought by the British & African Steam Navigation Company, Limited, owner of the British steamship, Appam, to recover posses- sion of that vessel. No. 722 was a suit by the master of the Appam to recover possession of the cargo. In each of the cases the decree was in favor of the libellant. The facts are not in dispute and, from them it appears: That during the existence of the present war between Great Britain and Germany, on the ISth day of January, 1916, the steamship Appam was captured 1 Print of the Reporter of the Supreme Court of the United States. BETWEEN THE UNITED STATES AND PRUSSIA 121 on the high seas by the German cruiser Moewe. The Appam was a ship under the British flag, registered as an EngHsh vessel, and is a modem cargo and passenger steamship of 7,800 tons burden. At the time of her capture she was returning from the West Coast of Africa to Liverpool, carrying a general cargo of cocoa beans, palm oil, ker- nels, tin, maize, sixteen boxes of specie, and some other articles. At the West African port she took on 170 passengers, eight of whom mere military prisoners of the English Government. She had a crew of 160 or thereabouts, and carried a three-pound gun at the stem. The Appam was brought to by a shot across her bows from the Moewe,' when about a hundred yards away, and was boarded without resistance by an armed crew from the Moewe. This crew brought with them two bombs, one of which was slung over the bow and the other over the stem of the Appam,. An officer from the Moewe said to the captain of the Appam that he was sorry he had to- take his ship, asked him how many passengers he had, what cargo, whether he had any specie, and how much coal. \\''hen the shot was fired across the bows of the Appam, the captain instructed the wireless operator not to touch the wireless instrument, and his officers not tO' let any one touch the gun on board. The officers and crew of the Appam, with the exception of the engine-room force, thirty-five in number, and the second officer, were ordered on board the Moewe. The captain, offi- cers and crew of the Appam were sent below, where they were held until the evening of the 17th of January, when they and about 150 others, officers and crews of certain vessels previously sunk by the Moewe, were ordered back to the Appam and kept there as prisoners. At the time of the capture, the senior officer of the boarding party told the chief engineer of the Appam he was now a member of the German navy; if he did not obey orders his brains would be blown out, but if he obeyed, not a hair of his head should be touched. The Appam's officer was instructed to tell his staff the same thing, and if they did not obey orders they would be brought to the German officer and shot. Inquiries were made by the German officer in command of the Appam as to revolutions of the engines, the quantity of coal on hand and the coal consumption for different speeds, and instractions were given that steam be kept up handy, and afterwards the engi- neer was directed to set the engines at the revolutions required, and the ship g'ot under way. 122 THE TREATIES OF 1785, 1799 AND 1828 Lieutenant Berg, who was the German officer in commiand of the Appam after its capture, told the engineer on the second moirning that he was then in charge of the ship, asked of him information as to fuel consumption, and said that he expected the engineer to help him all he could, and the more he did for him the better it would be for every- body on the ship. The engineer said he would, and did so. The en- gines were operated with a bomb secured to the port main injector valve, and a German sailor stationed alongside the bomb with a re- volver. There was a guard below of four or five armed Germans, who were relieved from time to time, but did not interfere with the working of the ship. The German officer. Lieutenant Berg, gave di- rections as to working the engines, and was the only officer on board who wore a uniformi. On the night of the capture, the specie in the specie-room was taken on board the Moewe. After Lieutenant Berg took charge oif the Appam, bombs were slung over her bow and stem, one large bomb, said to contain about two hundred pounds of explosive, was placed on the bridge, and several smaller ones in the chart room. Lieutenant Berg informed the 'Captain of the Appam, pointing to one of the bombs. "That is a bomb; if there is any trouble, mutiny, or attempt to take the ship, I have orders to blow up the ship instantly." He also said, "There are other bombs about the ship; I do not want to use them, but I shall be compelled to if there is any trouble." The bombs were kept in the positions stated until the ship arrived at the Virginia Capes, when they were removed. Lieutenant Berg, on reaching Hampton Roads, asked the crew of the Appam to drop the anchor, as he had not men to do' it. During the trip to the westward, the officers and crew of the Ap- pam were not allowed to see the ship's compass to ascertain her course, and all lights were obscured during the voyage. The German pris- oners, with the exception of two who went on board the Moewe, were armed and placed over the passengers and crew of the Appam as a guard all the way across. For two days after the capture, the Appam remained in the vicinity of the Moewe, and then was started west- ward. Her course foT the first two or three days was southwesterly, and afterwards westerly, and was continued until her arrival at the Virginia Capes on the 31st of January. The engine-room staff of the Appam was on duty operating the vessel across to the United States ; BETWEEN THE UNITED STATES AND PRUSSIA 123 the deck crew of the Appam kept the ship clean, and the navigation was conducted entirely by the Germans, the lookouts being mostly German prisoners. At the time of the capture, the Appam was approximately distant 1,590 miles from Emden, the nearest German port; from the nearest available port, namely, Punchello, in the Madeiras, 130 miles; from Liverpool, 1,450 miles ; and from Hampton Roads, 3,051 miles. The Appam was found to be in* first class order, seaworthy, with plenty of provisions, both when captured and at the time of her arrival in Hampton Roads. The order or commission delivered to Lieutenant Berg by the com- mander of the Moewe is as follows : Information for the American Authorities. The bearer of this, Lieutenant of the Naval Reserve, Berg, is appointed by me to the command of the captured English steamer Appam and has orders to bring the ship into the nearest American harbor and there to lay up. Kommando S. M. H. Moewe. Count Zu Dohna, Cruiser Captain and Commander. (Imperial Navy Stamp.) Kommando S. M. S. Moeivc. Upon arrival in Hampton Roads, Lieutenant Berg reported his ar- rival to the Collector, and fikd a copy of his instructions to bring the Appam into the nearest American port and there to lay up. On February 2nd, His Excellency, The German Ambassador, in- formed the State Department of the intention, under alleged treaty rights, to stay in an American port until further notice, and requested that the crew of the Appam be detained in the United States for the remainder of the war. The prisoners brought in by the Appam were released by order of the American Government. On February 16th, and sixteen days after the arrival of the Appam in Hampton Roads, the owner of the Appam filed the libel in case No. 650, to which answer was filed on March 3rd. On March 7th, by leave of court, an amended libel was filed, by -which the libellant sought to recover the Appam upon the claim that holding and detain- ing the vessel in American waters was in violation of the law of nations and the laws, of the United States and of the neutrality of the United States. The answer of the respondents to the amended libel alleged that the Appam was brought in as a prize by a prize master, 124 THE TREATIES OF 1785, 1799 AND 1828 in reliance upon the Treaty of 1799 between the United States and Prussia; that by the general principles of international law the prize master was entitled to bring his ship into the neutral port under these circumstances, and that the length of stay was not a matter for judicial determination; and that proceedings had been instituted in a proper prize court of competent jurisdiction in Germany for the condemna- tion of the Appani as a prize of war; and averred that the American court had no jurisdiction. The libel against the Appam's cargo was filed on March 13th, 1916. and answer filed on March 31st. During the progress of the case, libdlant moved the court to sell a part of the cargo as perishable; on motion the court appointed surveyors, who examined the cargo and reported that the parts so designated as perishable should be sold ; upon their report orders of sale were entered, under which such per- ishable parts were sold, and the proceeds of that sale, amounting to over $600,000, are now in the registry of the court, and the unsold portions of the cargo are now in the custody of the marshal oi the Eastern District of Virginia. The argument in this case has taken wide range, and orally and in printed briefs counsel have discussed many questions which we do not consider necessary to^ decide in determining the rights involved in these appeals. From the facts which we have stated, we think the decisive ques- tions resolve themselves into three : First, was the use of an American port, under the circumstances shown, a breach of this Nation's neu- trality under the principles of international law. Second, was such use of an American port justified by the existing treaties between the German Government and our own. Third, was there jurisdiction and right to condemn the Appam- and her cargo in a court of admiralty of the United States. It is familiar international law that the usual course after the cap- ture of the Appa/m would have been to take her into a German port, where a prize court of that Nation might have adjudicated her status. and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel was neither taken to a German port, nor to the nearest port accessible of a neutral power, but was ordered to, and did, proceed over a distance of more than three thousand miles, with a view to laying up the captured ship in an American port. BETWEEN THE UNITED STATES AND PRUSSIA 125 It was not the purpose to bring the vessel here within the privileges universally recognized in international law, i. e., for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as the cause of such entry was satisfied or re- moved. The purpose for which the Appam was brought to Hampton Roads, and the character of the ship, are emphasized in the order which we have quoted to take her to an American port and there lay her up and in a note from His Excellency, The German Amibassador, to the Secretary of State, in which the right was claimed to keep the vessel in an American port until further notice. (Diplomatic Cor- respondence with Belligerent Governments Relating to Neutral Rights and Duties, Department of State, European War No. 3, page 331,) and a further communication from the German Ambassador forward- ing a memorandum oif a telegram from the German Government con- cerning the Appam {Id. page 333), in which it was stated: Appam is not an auxiliary cruiser but a prize. Therefore she must be dealt with according to Article 19 of the Prusso^Ameri- can treaty of 1799. Article 21 of Hague Convention concerning neutrality at sea is not applicable, as this convention was not rati- fied by England and is therefore not binding in present war according to Article 28, The above-mentioned Article 19 author- izes a prize ship to remain in American ports as- long as she pleases. Neither the ship nor the prize crew can therefore be interned nor can there be question of turning the prize over to English. In view of these facts, and this attitude of the Imperial Government of Germany, it is manifest that the Appam was not brought here in any other character than as a prize, captured at sea by a cruiser of the German navy, and that the right to keep her here, as shown in the attitude of the German Government and in the answer to the libel, was rested principally upon the Prussian-American Treaty of 1799. The principles of international law recognized by this Government, leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by one of the belligerents, might be safely brought and indefinitely kept. From the beginning of its history this country has been careful to 126 THE>TREATIES OF 1785, 1799 AND 1828 maintain a neutral position between warring governments, and not to allow the use of its ports in violation of the obligations of neutral- ity; nor to permit such use beyond the necessities arising from the perils of the seas or the necessities of such vessels as to seaworthi- ness, provisions and supphes. Such usage has the sanction of inter- national law, Dana's Note to Wheaton on International Law, 1866, 8th American Edition, Section 391, and accords with our own prac- tice. Moore's Digest of International Law, Vol. 7, 936, 937, 938. A policy of neutrality between warring nations has been maintained from 1793 to this time. In that year President Washington firmly denied the use of our ports to the French Minister for the fitting out of privateers to destroy English commerce. This attitude led to the enactment of the Neutrality Act of 1794, afterwards embodied in the Act of 1818, enacting a code of neutrality, which among other things inhibited the fitting out and arming of vessels; the augmenting or increasing of the force of armed vessels ; or the setting on foot in our territory of military expeditions; and empowering the President to- order foreign vessels of war to depart from our ports and compelling them so to do when required by the law of nations. Moore on Inter- national Arbitrations, v. 4, 3967 et seq. This policy of the American Government was emphasized in its attitude at the Hague Conference of 1907. Article 21 of the Hague Treaty provides : A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or pro- visions. It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral Power must order it to leave at once; should it fail to obey, the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew. Article 22 provides: A neutral Power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article 21. To these articles, adherence was given by Belgium, France, Austria- Hungary, Germany, the United States, and a number of other nations. BETWEEN THE UNITED STATES AND PRUSSIA 127 They were not ratified by the British Government. This Government refused to adhere to Article 23, which provides : A neutral Power may allow prizes to enter its ports and road- steads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize court. It may have the prize taken to another of its ports. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left a' liberty. And in the proclamation of the convention the President recited the resolution of the Senate adhering to it, "subject to the reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 thereof implies the duty of a neutral Power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction." 36 Stat., Pt. II, p. 2438. While this treaty may not be of binding obligation, owing to lack of ratification, it is very persuasive as showing the attitude of the American Government when the question is one of international law ; from which it appears clearly that prizes could only be brought into our ports upon general principles recognized in international law, on account of unseaworthiness, stress of weather, or want of fuel or pro- visions, and we refused to recognize the principle that prizes might enter our ports and roadsteads, whether under convoy or not, to be sequestrated pending the decision of a prize court. From the history of the conference it appears that the reason for the attitude of the American delegates in refusing to accept Article 23 was that thereby a neutral might be involved in participation in the war to the extent of giving asylum to a prize which the belligerent might not be able to conduct to a home port. See Scott on Peace Conferences, 1899- 1907, Vol. 11, p. 237 et seq. Much stress is laid upon the failure of this Government to proclaim that its ports were not open to the reception of captured prizes, and it is argued that having failed to interdict the entrance of prizes into 128 THE TREATIES OF 1785, 1799 AND 1828 our ports permission to thus enter must be assumed. But whatever privilege might arise from this circumstance it would not warrant the attempted use of one of our ports as a place in which to store prizes indefinitely, and certainly not where no means of taking them out are shown except by the augmentation of her crew, which would be a clear violation of established rules of neutrality. As to the contention on behalf of the appellants that Article XIX of the Treaty of 1799 justifies bringing in and keeping the Appant in an American port, in the situation which we have outlined, it ap- pears that in response to a note from His Excellency, The German Ambassador, maldng that contention, the American Secretary of State, considering the treaty, announced a different conclusion (Diplomatic Correspondence with Belligerent Governments, supra, page 335 et seq.) ; and we think this view is justified by a consideration of the terms of the treaty. Article XIX of the Treaty of 1799, using the translation adopted by the American State Department, reads as follows : The vessels of war, public and private, of both parties, shall carry (condmre) freely, wheresoever they please, the vessels and effects taken (pris) from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others; nor shall such prizes (prises) be ar- rested, searched or put under legal process, when they come to and enter the ports of the other party, but may freely be car- ried {condwites) out again at any time by their captors (/<' vaisseau preneur') to the places expressed in their commissions, which the commanding officer of such vessel {le dit vaisseau) shall be obliged to show. [But conformably to the treaties ex- isting between the United States and Great Britain, no vessel {vaisseau) that shall have made a prize {prise) upon British subjects shall have a right to shelter in the ports of the United States, but if (il est) forced therein by tempests, or any other danger or accident of the sea, they {il sera) shall be obliged to depart as soon as possible.] (The provision concerning the treaties between the United States and Great Britain is no longer in force, having been omitted by the Treaty of 1828. See Com- pilation of Treaties in Force, 1904, pages 641 and 646.) We think an analysis of this article makes manifest that the per- mission granted is to vessels of war and their prizes, which are not to be arrested, searched, or put under legal process, when they come into the ports of the high contracting parties, to the end that they may BETWEEN THE UNITED STATES AND PRUSSIA 129 be freely carried out by their captors to the places expressed in their commissions, which the commanding officer is obliged to show. When the Appcmt came into the American harbor she was not in charge of a vessel of war of the German Empire. She was a merchant vessel, captured on the high seas and sent into the American port with the intention of being kept there indefinitely, and without any means of leaving that port for another as contemplated in the treaty, and re- quired to be shown in the commission of the vessel bringing in the prize. Certainly such use of a neutral port is very far from that con- templated by a treaty which made provision only for temporary asy- lum for certain purposes, and can not be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government. We can not avoid the conclusion that in thus making use of an American port there was a clear breach of the neutral rights of this Government, as recognized under principles of international law governing the obligations of neutrals, and that such use of one of our ports was in no wise sanctioned by the Treaty of 1799. It remains to inquire whether there was jurisdiction and authority in an admiralty court of the United States, under these circumstances, to order restoration to an individual owner of the vessel arid cargo. The earliest authority upon this subject in the decisions of this court is found in the case of Glass v. The Sloop Betsy, 3 Dallas, 6, decided in 1794, wherein it appeared that the commander of the French privateer. The Citizen Genet, captured as a prize on the high seas the sloop Betsy and sent the vessel into Baltimore, where the owners of the sloop and cargo filed a libel in the District Court of Maryland, claiming restitution because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The District Court denied jurisdiction, the Circuit Court affirmed the decree, and an appeal was prosecuted to this court. The unanimous opinion was announced by Mr. Chief Justice Jay, holding that the District Courts of the United States pos- sessed the powers of couits of admiralty, whether sitting as an in- stance or as a prize court, and sustained the jurisdiction of the Dis- trict Court of Maryland, and held that that court was competent to inquire into and decide whether restitution should be rtrade to the complainants conformably to the laws of nations and the treaties and laws of the United States. 130 THE TREATIES OF 1785, 1799 AND 1828 The question came again before this court in the case of The Santis- sima Trinidad, decided in 1822, reported in 7 Wheaton, 283. In that case it was held that an illegal capture would be invested with the character of a tort, and that the original owners were entitled to restitution when the property was brought within our jurisdiction. The opinion was delivered by Mr. Justice Story, and, after a full discus- sion of the matter, the court held that such an illegal capture, if brought into the jurisdiction of the courts of the United States, was subject to condemnation and restitution to the owners, and the learned justice said: If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the govern- ment itself. In the case of a capture made within a neutral ter- ritorial jurisdiction, it is well settled, that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own Courts or the Courts of the power having cognizance ol the capture itself for the purposes of prize. And by analogy to this counse of proceeding, the interposition of our own government might seem fit to have been required before cognizance of the wrong could be taken by our Courts. But the practice from the beginning in this class of causes, a period of nearly 30 years, has been unif ormJy the other way ; and it is now toO' late tO' disturb it. If an)' inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent for Congress to apply at its pleasure the proper remedy. (Page 349.) . . . Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into onr ports is liable to the jurisdic- tion of our Courts, for the purpose of examination and inquiry, and if a proper case be made out, for restitution to. those whose possession has been devested by a violation of our neutrality; and if the goods are landed from the public ship in our ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that if illegally captured they shall be exempted from the ordinary operation of our laws. (Page 354.) In the subsequent cases in this court this doctrine has not been de- parted from. Ulmn-'icihle, 1 Wheaton, 238, 258; The Estrella, 4 BETWEEN THE UNITED STATES AND PRUSSIA 131 Wheaton, 298, 308, 9, 10, 11 ; La Amistad de Rues, 5 Wheaton, 385, 390. It is insisted that these cases involve illegal captures at sea, or viola- tions of neutral obligation, not arising because of the use of a port by sending in a captured vessel and keeping her there in violation oi our rights as a neutral. But we are at a loss to see any difference in principle between such cases and breaches of neutrality of the char- acter here involved in undertaking tO' make of an American port a depository of captured vessels with a view to keeping them there in- definitely. Nor can we consent to the insistence of counsel for appel- lant that the Prize Court of the German Empire has exclusive juris- diction to determine the fate of the Appain as lawful prize. The ves- sel was in an American port and under our practice within the juris- diction and possession of the District Court which had assumed to determine the alleged violation of neutral rights, with power to dis- pose of the vessel accordingly. The foreign tribunal under such cir- cumstances could not oust the jurisdiction of the local court and thereby defeat its judgment. The Santissima Trinidad, supra, p. 355. Were the rule otherwise than this court has frequently declared it to be, our ports might be filled in case of a general war such as is now in progress between the European countries, with captured prizes of one or the other of the belligerents, in utter violation of the prin- cipes of neutral obligation which have controlled this country from the beginning. The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neu- trality. In each case the jurisdiction and order rests upon the au- thority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neu- tral people. It foillows that the decree in each case must be Affirmed. A true copy. Test : Clerk Supreme Court, U. S. Extracts from a Proclamation by the President of the United States, August 22, 1870^ Whereas a state of war unhappily exists between France on the one side and the North German Confederation and its allies on the other side ; and Whereas the United States are on terms of friendship and amipy with all the contending powers and with the persons inhabiting their several dominions ; and Whereas great numbers of the citizens of the United States reside within the territories or dominions of each of the said belligerents and carrj' on commerce, trade, or other business or pursuits therein, pro- tected by the faith of treaties ; and Whereas great numbers of the subjects or citizens of each of the said belligerents reside within the territory or jurisdiction of the United States and carry on commerce, trade, or other business or pur- suits therein ; and Whereas the laws of the United States, without interfering with the free expression of opinion and sympathy, or with the open manufac- ture or sale of arms or munitions of war, nevertheless impose upon all persons who may be within their territory and jurisdiction the duty of an impartial neutrality during the existence of the contest: Now, therefore, I, Ulysses S. Grant, President of the United States, in order to preserve the neutrality of the United States and of their citizens and of persons within their territory and jurisdiction, and to enforce their laws, and in order that all persons, being warned of the general tenor of the laws and treaties of the United States in this behalf and of the law of nations, may thus be prevented from an unintentional violation of the same, do hereby declare and proclaim that by the act passed on the 20l;h day of April, A. D. 1818, commonly known as the "neutrality law," the following Acts are forbidden to be done, under severe penalties, within the territory and jurisdiction of the United States, to wit : And I do further declare and proclaim that by the nineteenth article of the treaty of amity and commerce which was concluded between iVII Richardson : Messages and Papers of the Presidents, 86. 134 THE TREATIES OF 178S, 1799 AND 1828 His Majesty the King of Prussia and the United States of America on the 11th day of July, A. D. 1799, which article was revived by the treaty of May 1, A. D. 1828, between the same parties, and is still in force, it was agreed that "the vessels of war, public and private, of both parties shall carry freely, wheresoever they please, the vessels and effects taken from their enemies, without being obliged to pay any duties, charges, or fees to officers of admiralty, of the customs, or any others ; nor shall such prizes be arrested, searched, or put under legal process when they come to and enter the ports of the other party, but may freely be carried out again at any time by their captors to the places expressed in their commissions, which the commanding officer of such vessel shall be obliged to show." And I do further declare and proclaim that it has been officially communicated to the Government of the United States by the envoy extraordinary and minister plenipotentiary of the North German Con- federation at Washington that private property on the high seas will be exempted from seizure by the ships of His Majesty the King of Prussia, without regard to reciprocity. In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this 22d day of August, A. D. 1870, and of the Independence of the United States of America the ninety- fifth. [Seal] U. S. Grant. By the President : Hamilton Fish. Secretary of State. Case of the William P. Frye^ The Secretary of State to Ambassador Gerard [Telegram] No 1446.] Department of State, Washington, March ji, 1915. You are instructed to present the following note to the German Foreign Office: Under instructions from my Government I have the honor to present a claim for $228,059.54, with interest from January 28, 1915, against the German Government on behalf of the owners and captain Oif the American sailing vessel William. P Frye for damages suffered by them on account of the destruction of that vessel on the high seas by the German armed cruiser Prinz Eitcl Friedrich, on January 28, 1915. The facts upon which this claim arises and by reason of which the German Government is held responsible by the Government of the United States for the attendant loss and damages are briefly as follows : The William P- Frye, a steel sailing vessel of 3,374 tons gross ton- nage, owned by American citizens and sailing under the United States flag and register, cleared from Seattle, Wash., November 4, 1914, under charter to M. H. Houser, of Portland, Oreg., bound for Queens- town, Falmouth, or Plymouth for orders, with a cargo consisting solely of 186,950 bushels of wheat owned by the aforesaid Houser and con- signed "unto order or to its assigns," all of which appears from the ship's papers which were taken from the vessel at the time of her destruction by the commander of the German cruiser. On January 27, 1915, the P'-jnz Eitel Friedrich encountered the Frye on the high seas, compelled her to stop, and sent on board an armed boarding party, who took possession. After an examination of the ship's papers the commander of the cruiser directed that the cargo be thrown overboard, but subsequently decided to destroy the vessel, and on the following morning, by his order, the Frye was sunk. The claim of the owners and captain consists of the following items : lOfficial Print of the Department of .State. 136 THE TREATIES OF 1785, 1799 AND 1828 Value of ship, equipment, and outfit $150,000.00 Actual freight as per freight list, 5034 1000/2240 tons at 32-6— £8180-19-6 at $4.86 39,759.54 Traveling and other expenses of Capt. Kiehne and Arthur Sewall & Co., agents of ship, in connection with mak- ' ing affidavits, preparing and filing claim 500.00 Personal effects of Capt. H. H. Kiehne 300.00 Damages covering loss due to deprivation of use of ship. . 37,500.00 Total $228,059.54 By direction of my Government, I have the honor to request that full reparation be made by the German Government for the destruction of the William P. Frye by the German cruiser Prinz Eitel Friedrich. Bryan. Ambassador Gerard to the Secretary of State No. 1984.] American Embassy,, Berlin, April 5, 1915. The foUowfing is translation of the reply of the Foreign Office to my note of April 3 : German Foreign Office, Berlin, April 5, 1915. The undersigned has the honor to make reply to the note of His Excellency, Mr. James W. Gerard, Ambassador, the United States of America, dated the 3d instant, foreign office No. 2892, relative to claims for damages for the sinking of the American merchant vessel William P Frye by the German auxiliary cruiser Prins Eitel Friedrich. According to the reports which have reached the German Govern- ment the commander of the Prinz Eitel Friedrich stopped the William P. Frye on the high seas January 27, 1915, and searched her. He found on board a cargo of wheat consigned to Queenstown, Falmouth, or Plymouth to order. After he had first tried to remove the cargo from the William P Frye he took the ship's papers and her crew on board and sank ship. It results from these facts that the German commander acted quite in accordance with the principles of international law as laid down in the Declaration of London and the German prize ordinance. The ports of Queenstown, Falmouth, and Plymouth, whither the ship vis- ited was bound, are strongly fortified English coast places, which, more- over, serve as bases for the British naval forces. The cargo of wheat being food or foodstuffs, was conditional contraband within the BETWEEN THE UNITED STATES AND PRUSSIA 137 meaning of article 24, No. 1, of the Declaration of London, and article 23, No. 1, of the German prize ordinance, and was therefore to be considered as destined for the armed forces of the enemy, pursuant to articles 33 and 34 of the Declaration of London and articles 32 and 33 of the German prize ordinance, and to be treated as contraband pending proof of the contrary. This proof was certainly not capable of being adduced at the time of the visiting of the vessel, since the cargo papers read to order. This, however, furnished the conditions under which, pursuant to article 49 of the Declaration of London and article 113 of the German prize ordinance the sinking of the ship was permissible, since it was not possible for the auxiliary cruiser to take the prize into a German port without involving danger to its own security or the success of its operations. The duties devolving ufion the cruiser before destruction of the ship, pursuant to article SO of the Declaration of London and article 116 of the German prize ordi- nance, were fulfilled by the cruiser in that it took on board all the persons found on the sailing vessel, as well as the ship's papers. The legality of the measures taken by the German commander is furthermore subject to examination by the German prize court pursuant to article 51 of the Declaration of London and section 1, No. 2, of the German Code of Prize Procedure. These prize proceedings will be instituted before the prize court at Hamburg as soon as the ship's papers are received and will comprise the settlement of questions whether the destruction of the cargo and the ship was necessary within the meaning of article 49 of the Declaration of London; whether the property sunk was liable »to capture; and whether, or to what extent, indemnity is to be awarded the owners. In the trial the owners of ship and cargo would be at liberty, pursuant to article 34, paragraph 3, of the Declaration of London, to adduce proof that the cargo of wheat had an innocent destination and did not, therefore, have the character of contraband. If such proof is not adduced, the German Government would not be liable for any compensation whatever, according to the general principles of intemationa/1 law. However, the legal situation is somewhat different in the light of the special stipulations applicable to the relations between Germany and the United States since article 13 of the Prussian-American treaty of friendship and commerce of July 11, 1799, taken in connection with article 12 of Prussian- American treaty of commerce and navi- gation of May 1, 1828, provides that contraband belonging to the sub- jects or citizens of either party can not be confiscated by the other in any case but onlj^ detained or used in consideration of payment of the full value of the same. On the ground of this treaty stipulation which is as a matter of course binding on the German prize court the American owners of ship and cargo would receive compensation even if the court should declare the cargo of wheat to be contraband. Never- theless the approaching prize proceedings are not rendered superfluous since the competent prize court must examine into the legality of the 138 THE TREATIES OF 1785, 1799 AND 1828 capture and destruction and also pronounce upon the standing of the claimants and the amount of indemnity. The undersigned begs to suggest that the ambassador bring the above to the knowledge of his Government and avails himself, etc. (Signed) Jagow. April 4, 1915. Gerard. The Secretary of State to Ambassador Gerard No. 1583.] Department of State, Washington, April 28, 1915. You are instructed to present the following note to the German Foreign Office: In reply to Your Excellency's note of the 5th instant, which the Government of the United States understands admits the liability of the Imperial German Government for the damages resulting from the sinking of the American sailing vessel William P. Frye by the German auxiliary cruiser Prins Eitel Friedrich on January 28 last, I have the honor to say, by direction of my Government, that while the prompt- ness with which the Imperial German Government has admitted its liability is highly appreciated, my Government feels that it jvould be inappropriate in the circumstances O'f this case, and would involve unnecessary delay to adopt the suggestion in your note that the legality of the capture and destruction, the standing of the claimants, and the amount of indemnity should be submitted to a prize court. Unquestionably the destruction of this vessel was a violation of the obligations imposed upon the Imperial German Government under existing treaty stipulations between the United States and Prussia, and the United States Government, by virtue of its treaty rights, has presented to the Imperial German Government a claim for indemnity on account of the resulting damages suffered by American citizens. The liability of the Imperial German Government and the standing of the claimants as American citizens and the amount of indemnity are all questions which lend themselves to diplpmatic negotiation between the two Governments, and happily the question of liability has already been settled in that way. The status of the claimants and the amount of the indemnity are the only questions remaining to be settled, and it is appropriate that they should be dealt with in the same way. The Government of the United States fully understands that, as stated in your excellency's note, the German Government is liable under the treaty provisions above mentioned for the damages arising from the destruction of the cargo as well as from the destruction of the vessel. But it will be observed that the claim under discussion BETWEEN THE UNITED STATES AND PRUSSIA 139 does not include damages for the destruction of the cargo, and the question of the value of the cargo therefore is not involved in the present discussion. The Government of the United States recognizes that the German Government will wish to be satisfied as to the American ownership of the vessel, and the amount of the damages sustained in consequence of her destruction. These matters are readily ascertainable and if the German Govern- ment desires any further evidence in substantiation of the claim on these points in addition to that furnished by the ship's papers, which are already in the possession of the German Government, any additional evidence found necessary will be produced. In that case, however, inasmuch as any evidence which the German Government may wish to have produced is more accessible and can more conveniently be ex- amined in the United States than elsewhere, on account of the presence there of the owners and captain of the William P. Frye and their documentary records, and other possible witnesses, the Government of the United States ventures to suggest the advisability of transferring the negotiations for the settlement of these points to the Imperial German embassy at Washington. In view of the admission of liability by reason of specific treaty stipulations, it has become unnecessary to enter into a discussion of the meaning and effect of the Declaration of London, which is given some prominence in Your Excellency's note of April 5, further than to say that, as the German Government has already been advised, the Government of the United States does not regard the Declaration of London as in force. Bryan. Ambassador Gerard to the Secretary of State [Telegram] No. 239 L] American Embassy, Berlin, June J, 1915. The following is the text of the reply of the German Government in the Frye case: The undersigned has the honor to make the following reply to the note of His Excellency Mr. James W. Gerard, Ambassador of the United States of America, dated April 30, 1915 (F. O. No. 3291), on the subject of the sinking of the American sailing vessel William P Frye by the German auxiliary cruiser Primz Bit el Friedrich: The German Government can not admit that, as the American Government assumes, the destruction of the sailing vessel mentioned 140 THE TREATIES OF 1785, 1799 AND 1828 constitutes a violation of the treaties concluded between Prussia and the United States at an earlier date and now applicable to the relations between the German Empire and the United States or of the American rights derived therefrom. For these treaties did not have the intention of depriving one of the contracting parties engaged in war of the right of stopping the supply of contraband to his enemy when he recognizes the supply of such articles as detrimental to his military interests. On the contrary, Article 13 of the Prussian-American Treaty of July 11, 1799, expressly reserves to the party at war the right to stop the carrying of contraband and to detain the contraband ; it follows then that if it can not be accomplished in any other way, the stopping of the supply may in the extreme case be effected by the destruction of the contraband and of the ship carrying it. As a matter of course, the obligation of the party at war to pay compensation to the interested persons of the neutral contracting party remains in force whatever be the manner of stopping the supply. j-^\According to general principles of international law, any exercise of the right of control over the trade in contraband is subject to the decision of the Prize Courts, even though such right may be restricted by special treaties. At the beginning of the present war Germany, pursuant to these principles, established by law prize jurisdiction for cases of the kind under consideration. The case of the William P. Frye is likewise subject to the German prize jurisdiction, for the Prussian-American Treaties mentioned contain no stipulation as to how the amount of the compensation provided by Article 13 of the treaty cited is to be fixed. The German Government, therefore, com- plies with its treaty obligations to a full extent when the Prize Courts mstituted by it in accordance with international law proceed in pur- suance of the treaty stipulations and thus award the American inter- ested persons equitable indemnity. There would, therefore, be no foundation for a claim of the American Government, unless the Prize Courts should not grant indemnity in accordance with the treaty; in such an event, however, the German Government would not hesitate to arrange for equitable indemnity notwithstanding. For the rest, prize proceedings in the case of the Frye are indispensable, apart from the American claims, for the reason that other claims of neutral and enemy interested parties are to be considered in the matter. As was stated in the note of April 4 last, the Prize Court will have to decide the questions whether the destruction of the ship and cargo was legal; whether and under what conditions the. property sunk was liable to confiscation, and to whom and in what amount indemnity is ■ to be paid provided application therefor is received. Since the decision of the Prize Court must first be awaited before any further position is taken by the German Government, the simplest way for the American interested parties to settle their claims would be to enter them in the competent quarter in accordance with the provisions of the German Code of Prize Procedure. BETWEEN THE UNITED STATES AND PRUSSIA 141 The undersigned begs to suggest that the ambassador bring the above to the knowledge of his Government, and avails himself at the same time of the opportunity to renew the assurances of his most dis- tinguished consideration. (Signed.) v. Jagow. Gerard. The Secretary of State to Ambassador Gerard [Telegram] No. 1868.] Department of State, Washington, June 24, 1915. You are instructed to present the following note to the German Minister of Foreign Affairs : 1 have the honor to inform Your Excellency that I duly communi- cated to my Government your note of the 7th instant on the subject of the claim presented in my 'note of April 3d last, on behalf of the owners and captain of the American sailing vessel William P. Frye in consequence of her destruction by the German auxiliary cruiser Prinz Eitel Friedrich. In reply I am instructed by my Government to say that it has care- fully considered the reasons given by the Imperial German Govern- ment for urging that this claim should be passed upon by the German Prize Court instead of being settled by direct diplomatic discussion between the two Governments, as proposed by the Government of the United States, and that it regrets to find that it can not concur in the conclusions reached by the Imperial German Government. As pointed out in my last note to you on this subject, dated April 30, the Government of the United States has considered that the only question under discussion was the method which should be adopted for ascertaining the amount Oif the indemnity to be paid under an admitted liability, and it notes with surprise that in addition to this question the Imperial German Government now desires to raise some questions as to the meaning and effect of the treaty stipulations under which it has admitted its liability. If the Government of the United States correctly understands the position of the Imperial German Government as now presented, it is that the provisions of Article 13 of the Treaty of 1799 between the United States and Prussia, which is continued in force by the Treaty of 1828, justified the commander of the Prim Eitel Friedrich in sink- ing the William, P. Frye, although making the Imperial German Gov- ernment liable for the "damages suffered in consequence, and that inas- much as the treaty provides no specific method for ascertaining the 142 THE TREATIES OF 1785, 1799 AND 1828 amount of indemnity to be paid, that question must be submitted to the German Prize Court for determination. The Government of the United States, on the other hand, does not find in the treaty stipulations meaitioned any justification for the sinking of the Frye, and does not consider that the German Prize Court has any jurisdiction over the question of the amount of in- demnity to be paid by the Imperial German Government on account of its admitted liability for the destruction of an American vessel on the high seas. You state in your note of the 7th instant that Article 13 of the above-mentioned treaty of 1799 "expressly reserves to the party at war the right to stop the carrying of contraband and to detain the contra- band ; it follows then that if it can not be accomplished in any other way, the stopping of the supply may in the extreme case be effected by the destruction of the contraband and of the ship carrying it." The Government of the United States can not concur in this conclu- sion. On the contrary, it holds fhat these treaty provisions do not authorize the destruction of a neutral vessel in any circumstances. By its express terms the treaty prohibits even the detention of a neutral vessel carrying contraband if the master of the vessel is willing to surrender the contraband. Article 13 provides "in the case supposed of a vessel stopped for articles of contrabands if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage." In this case the admitted facts show that pursuant to orders from the commander of the German cruiser, the master of the Frye under- took to throw overboard the cargo of that vessel, but that before the work of delivering out the cargo was finished the vessel with the cargo was sunk by order of the German commander. For these reasons, even if it be assumed as Your Excellency has done, that the cargo was contraband, your contention that the destruc- tion of the vessel was justified by the provisions of Article 13 does not seem to be well founded. The Government of the United States has not thought it necessary in the discussion of this case to go into the question of the contraband or non-contraband character of the cargo. The Imperial German Government has admitted that this ques- tion makes no difference so far as its liability for damages is concerned, and the result is the same so far as the justification for the sinking of the vessel is concerned. As shown above, if we assume that the cargo was contraband, the master of the Frye should have been allowed to deliver it out, and the vessel should have been allowed to proceed on her voyage. On the other hand, if we assume that the cargo was noncontraband, the destruction either of the cargo or the vessel could not be justified in the circumstances of this case under any accepted rule of interna- BETWEEN THE UNITED STATES AND PRUSSIA 143 tional law. Attention is also called to the provisions of Article 12 of the Treaty of 1785 between the United States and Prussia, which, like Article 13 of the Treaty of 1799, was continued in force by Article 12 of the Treaty of 1828. So far as the provisions of Article 12 of the Treaty of 1785 apply to the question under consideration, they are as follows : "If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." It seems clear to the Government of the United States, therefore, that whether the cargo of the Frye is regarded as contraband or as non- contraband, the destruction of the vessel was, as stated in my previous communication on this subject, "a violation of the obligations imposed upon the Imperial German Government under existing treaty stipula- tions between the United States and Prussia." For these reasons the Government of the United States must dis- agree with the contention which it understands is now made by the Imperial German Government that an American vessel carrying con- traband may be destroyed without liability or accountability beyond the payment of such compensation for damages as may be fixed by a German Prize Court. The issue thus presented arises on a disputed interpretation of treaty provisions, the settlement of which requires direct diplomatic discussion between the two Governments, and can not properly be based upon the decision of the German Prize Court, which is in no way conclusive or binding upon the Government of the United States. / Moreover, even if no disputed question of treaty interpretation was involved, the admission by the Imperial German Government of its liability for damages for sinking the vessel would seem to make it unnecessary, so far as this claim is concerned, to ask the Prize Court to decide "whether the destruction of the ship and cargo was legal, and whether and under what conditions the property sunk was liable to confiscation," which, you state in your note dated June 7, are ques- tions which should be decided by the Prize Court. In so far as these questions relate to the cargo, they are outside of the present discussion, because, as pointed out in mv previous note to you on the subject dated April 30, "the claim under discussion does not include damages for the destruction of the cargo." The real question between the two Governments is what reparation must be made for a breach of treaty obligations, and that is not a question which falls within the jurisdiction oif a Prize Court. 144 THE TREATIES OF 178S, 1799 AND 1828 In my first note on the subject the Government of the United States requested that "full reparation be made by the Imperial Ger- man Government for the destruction of the William P. Frye." Repa- ration necessarily includes an indemnity for the actual pecuniary loss sustained, and the Government of the United States takes this oppor- tunity to assure the Imperial German Government that such an in- demnity, if promptly paid, will be accepted as satisfactory reparation, but it does not rest with a Prize Court to determine what reparation should be made or what reparation would be satisfactory to the Gov- ernment of the United States. Your Excellency states in your note of June 7 that in the event the Prize Court should not grant indemnity in accordance with the treaty requirements, the German Government would not hesitate to arrange for equitable indemnity, but it is also necessary that the Government of the United States should be satisfied with the amount of the in- demnity, and it would seem to be more appropriate and convenient that an arrangement for equitable indemnity should be agreed upon now rather than later. The decision of the Prize Court, even on the question of the amount of indemnity to be paid, would not be binding or conclusive on the Government of the United States. The Government of the United States also dissents from the view expressed in your note that "there would be no foundation for a claim of the American Government unless the Prize Courts should not grant indemnity in accordance with the treaty." The claim presented by the American Government is for an indemnity for a violation of a treaty, in distinction from an indemnity in accordance with the treaty, and therefore is a matter for adjustment by direct diplomatic discussion between the two Governments and is. in nO' way dependent upon the action of a German Prize Court. For the reasons above stated the Government of the United States can not recognize the propriety of submitting the claim presented by it on behalf of the owners and captain of the Frye to the German Prize Court for settlement. The Government of the United States is not concerned with any proceedings which the Imperial German Government may wish tO' take on "other claims of neutral and enemy interested parties" which have not been presented by the Government of the United States, but which you state in your note of June 7 make Prize Court proceedings in this case indispensable, and it does not perceive the necessity for post- poning the settlement of the present claim pending the consideration of those other claims by the Prize Court. The Government of the United States, therefore, suggests that the Imperial German Government reconsider the subject in the light of these considerations, and because of the objections against resorting to the Prize Court the Government of the United States renews its BETWEEN THE UNITED STATES AND PRUSSIA 145 former suggestion that an effort be made to settle this claim by direct diplomatic negotiations. Lansing. Ambassador Gerard to the Secretary of State [Telegram] No. 2656.] American Embassy, Berlin, July jo, 1915. Following note received : FoKEiGN Office, Berlin, July jo, 1915. The undersigned has the honor to inform His Excellency, Mr. James W. Gerard, Aniibassador of the United States of America, ia reply to the note of the 26th ultimo. Foreign Office No. 3990, on the subject of the sinking of the American merchant vessel William P Frye by the German auxiliary cruiser Prins Eitel Friedrich, that the points of view brought out in the note have been carefully examined by the Imperial German Government. This examination has led to the following conclusions : The Government of the United States believes that it is incumbent upon it to take the position that the treaty rights to which America is entitled, as contained in Article 12 of the Prussian-American treaty of amity and commerce of September 10, 1785, in Article 13 of the Prussian-American treaty of amity and commerce of July 11, 1799, were violated by the sinking of the William P. Frye. It interpreti these articles as meaning- that a merchantman of the neutral contract- ing party carrying contraband can not in any circumstances be de- stroyed by a war-ship of the belligerent contracting party, and that the sinking of the William P. Frye was, therefore, in violation of the treaty, even if her cargo should have consisted of contraband, whicli it leaves outside of the discussion. The German Government can not accept this view. It insists as heretofore that the commander of the German auxiliary cruiser acted in the legal exercise of the right of control of trade in contraband enjoyed by war-ships of belligerent nations, and that the treaty stipu- lations mentioned merely oblige the German Government to make com- pensation for the damage sustained by the American citizens con- cerned. It is not disputed by the American Government that, according to general principles of international law, a belligerent is authorized in sinking neutral vessels under almost any conditions for carrying con- traband. As is well known, these principles were laid down in Articles 49 and 50 of the Declaration of London, and- were recognized at that time by the duly empowered delegates of all the nations which par- 146 THE TREATIES OF 178S, 1799 AND 1828 ticipated in the conference, including the American delegates, to be declarative of existifig international law (see preliminary clause of the Declaration of London) ; moreover, at the beginning of the preseiu war, the American Government proposed to the belligerent nations to ratify the Declaration of London and give its provisions fo^rmal validity also. The German Government has already explained in its note of April 4 last for what reasons it considers that the conditions justifying the sinking under international law were present in the case of the William P. Frye. The cargo consisted of conditional contraband, the destination of which for the hostile armed forces was to be presumed under the circumstances ; no proof to overcome this presumption has been furnished. More than half the cargo of the vessel was contra- band, so that the vessel was liable to confiscation. The attempt to bring the American vessel into a German port would have greatly imperiled the German vessel in the given situation of the war, and at any rate practically defeated the success of her further operations. Thus the authority for sinking the vessel was given according to gen- eral principles of international law. There only remains then to be examined the question how far the Prussian-American treaty stipulations modify these principles of in- ternational law. In this connection Article 12 of the treaty of 1785 provides that in the event of a war between one of the contracting parties with an- other power the free commerce and intercourse of the nationals of the party remaining neutral with the belligerent powers shall not be inter- rupted, but that on the contrary the vessel of the neutral party may navigate freely to and from the ports of the belligerent powers, even neutralizing enemy goods on board thereof. However, this article merely foirmulates general rules for the freedom of maritime inter- course and leaves the question of contraband untouched ; the specific stipulations on this point are contained in the following article, which is materially identical with Article 13 of the treaty of 1799 now in force. The plain intention of Article 13 is to establish a reasonable com- promise between the military interests of the belligerent contracting party and the commercial interests of the neutral party. On the one hand the belligerent party is to have the right to prevent the trans- portation of war supplies to his adversaries even when carried on ves- sels of the neutral party : on the other hand the commerce and navi- gation of the neutral party is to be interfered with as little as possible by the measures necessary for such prevention, and reasonable com- pensation is to be paid for any inconvenience or damage which may nevertheless ensue from the proceeding of the belligerent party. Article 13 recites the following means whereby the belligerent party can prevent the vessels of the neutral party from carrying war sup- BETWEEN THE UNITED STATES AND PRUSSIA 147 plies to his adversary. The detention of the ship and cargo for such length O'f time as the belligerent may think necessary ; furthermore the taking over of the war stores for his own use, paying the full value of the same as ascertained at the place of destination. The right of sinking is not mentioned in the treaty and is therefore neither ex- pressly permitted, nor expressly prohibited, so that on this point the party stipulations must be supplemented by the general rules of inter- national law. F'rom the meaning and spirit of the treaty it really ap- pears out of the question that it was intended to expect of the bel- ligerent that he should permiit a vessel loaded with contraband, for example a shipment of arms and ammunition of decisive importance for the outcome of the war, to proceed unhindered to his enemy when circumstances forbid the carrying of the vessel into port, if the gen- eral rules O'f international law allow sinking oi the vessel. The remaining stipulations of Article 13 must likewise be con- sidered in this light ; they provide that the captain of a vessel stopped shall be allowed to proceed on his voyage if he delivers out the con- traband to the war-ship which stopped his vessel. For such deliver- ing ovit can not of course be considered when the ensuing loss of time imperils either the war-ship herself or the success of her other opera- tions. In the case of the JVilliam F- Frye the German commander at first tried to have matters settled by the delivery of contraband, but convinced himself of the impracticability of this attempt in that it would expose his ship to attack by whatever superior force of enemy war vessels pursuing him and was accordingly obliged tO' determine upon the sinking of the Frye. Thus he did not exceed on this point the limits to which he was bound by Article 13. However, Article 13 asserts itself here to the extent that it founds the obligation to compensate the American citizens affected, whereas according to the general rules of international law the belligerent party does not need to grant compensation for a vessel lawfully sunk. For if, by Article 13, the mere exercise of right of highways makes the belligerent liable for compensation, this must apply a fortiori to the exercise of the right of sinking. The question whether the German commander acted legally was primarily a subject for the consideration of the German prize courts according to general principles of international law as laid down ; also in Article 1 of The Hague Convention for the establishment of an international prize court and in Article 51 of the Declaration of London. The German Government consequently laid the case of William P. Frye before the competent prize court at Hamburg, as was stated in its note of the 7th ultimo. This court found by its judg- ment of the 10th instant that the cargo of the American vessel JVilliam P. Frye was contraband, that the vessel could not be carried into port, and that the sinking was therefore justified; at the same time the court expressly recognized the validity of the Prussian-American 148 THE TREATIES OF 1785, 1799 AND 1828 treaty stipulations severally mentioned for the relations between the German Empire and America, so that the sinking of the ship and cargo, so far as American property, makes the German Empire liable for indemnity. The prize court was unable to fix the indemnity itself, since it had no data before it, failing the receipt of the necessary detail from the parties interested. It will now be necessary to settle these points in a different way. The German Government suggests as the simplest way that each of the two Governments designate an expert, and that the two experts jointly fix the amount of indemnity for the vessel and any American property which may have been sunk with her. The German Govern- ment will promptly pay the amount of indemnity thus ascertained; it expressly declares, however, reverting to what has been stated above, that this payment does not constitute satisfaction for the violation of American treaty rights, but a duty or policy of this Government founded on the existing treaty stipulations. Should the American Goverrutnent not agree to this manner of set- tling the matter, the German Government is prepared to submit the difference of opinion as being a question of the interpretation of the existing treaties between Germany and the United States to the tri- bunal at The Hague, pursuant to Article 38 of The Hague Convention for the pacific settlement of international disputes. The undersigned begs to suggest that tlie Ambassador bring the above to the attention of his Government and avails himself, etc., VON Jagow. Gerard. The Secretary of State to Ambassador Gerard ' [Telegram] No. 2057.] Department of State, Washington, August lo, 1915. You are instructed to present the following note tO' the German Minister for Foreign Affairs: Under instructions from my Government, I have the honor to in- form Your Excellency in reply to your note of July 30 in regard to the claim for reparation for the sinking of the William P. Frye, that the Government of the United States learns with regret that the objec- tions urged by it against the submission of this case to the prize court for decision have not commended themselves to the Imperial German Government, and it equally regrets that the reasons presented by the Imperial German Government for submitting this case to the prize court have failed to remove the objections of the Government of the BETWEEN THE UNITED STATES AND PRUSSIA 149 t United States to the adoption of that course. As this disagreement has been reached after the fuJl presentation of the views of both Gov- ernments in our previous correspondence, a further exchange of views on the questions in dispute would doubtless be unprofitable, and the Government of the United States therefore welcomes Your Excel- lency's suggestion that some other way should be found for settling this case. The two methods of settlement proposed as alternative suggestions in Your Excellency's note have been given careful consideration, and it is believed that if they can be combined so that they may both be adopted, they will furnish a satisfactory basis for the solution of the questions at issue. The Government of the United States has already expressed its de- sire that the question of the amount of indemnity to be paid by the Imperial German Government under its admitted liability for the losses of the owners and captain on account of the destruction of the Frye should be settled by diplomatic negotiation, and it entirely concurs with the suggestion of the Imperial German Government that the simplest way would be to agree, as proposed in your note, "that each of the two Governments designate an expert and that the two experts jointly fix the amount of indemnity for the vessel and any American property which may have been sunk with her," to be paid by the Imperial Ger- man Government when ascertained as stated in your note. It is as- sumed that the arrangement will include some provision for calling in an umpire in case the experts fail to agree. The Government of the United States notes that your suggestion is made with the express reservation that a payment under this arrange ment would not constitute an admission that American treaty rights had been violated, but would be regarded by the Imperial Germa.i Government merely as fulfilling a duty or policy founded on existing treaty stipulations. A payment made on this understanding would be entirely acceptable to tne Government of the United States, provided that the acceptance of such payment should likewise be understood to be without prejudice to the contention of the Government of the United States that the sinking of the Frye was without legal justifica- tion, and provided also that an arrangement can be agreed upon for the immediate submission to arbitration of the question of legal justi- fication, in so far as it involves the interpretation of existing treaty stipulations. There can be no difference of opinion between the two Governments as to the desirability of having this question of the true intent and meaning of their treaty stipulations determined without delay, and to that end the Government of the United States proposes that the altern- ative suggestion of the Imperial German Government also be adopted, so that this question of treaty interpretation can be submitted forth- 150 THE TREATIES OF. 1785, 1799 AND 1828 with to arbitration pursuant to Article 38 of The Hague Convention, for the pacific settlement of international disputes. In this way both the question of indemnity and the question of treatv interpretation can promptly be settled, and it will be observed that the. only change made in the plan proposed by the Imperial German Gov- ernment is that instead of eliminating either one oi its alternative sug- gestions, they are both given effect in order that both of the questions- under discussion may be dealt with at the same time. If this proposal proves acceptable to the Imperial German Govern- ment,, it win be necessary also to determine whether, pending the ar- bitral award, the Imperial German Government shall govern its naval operations in accordance with its own interpretation, or in accordance with the interpretation maintained by the United States, as tO' the obligations imposed by their treaty stipulations, and the Government of the United States Avould be glad to have 'an expression of the views- of the Imperial German Government on this point. Lansing. Ambassador Gerard to the Secretary of State [Telegram] American Embassy, Berlin, September so, ipi5- Following note received from the Foreign Office to-day : Foreign Office, Berlin, September ip, ipij. The undersigned has the honor to make the following reply to the note of His Excellency, Mr. James_W. Gerard, Ambassador of the United States of America, dated 13th ultimo, 'on the subject of the claim for reparation for the sinking of the American merchantman William P. Frye. With regard first to the ascertainment of the damages by experts the German Government believes that it should dispense with the nom- ination of an umpire. In the cases of the ascertainment of damages hitherto arranged between the German Government and a neutral Gov- ernment from similar causes the experts named by the two parties have always reached an agreement as to the amount of the damage without difficulty; should it not be possible, however, to reach an agreement on some point, it could probably be settled by diplomatic- negotiation. Assuming that the American Government agrees to this, the German Government names as its expert Dr. Kepny, of Bremen, director of the North German Lloyds ; it begs to await the designation of the American expert. BETWEEN THE UNITED STATES AND PRUSSIA 151 The German Government declares that it agrees to the proposal of the American Government to separate the question of indemnity from the question of the interpretation of the Prussian-American treaties of 1785, 1799, and 1828. It therefore again expressly states that in mak- iiig payment it does not acknowledge the violation of the treaty as contended by the American side, but it will admit that the settlement of the question of indemnity does not prejudice the arrangement of the difference of opinion concerning the interpretation of the treaty rights, and that this dispute is left to be decided by The Hague tribunal of arbitration. The negotiations relative to the signing of the compromis provided by Article 52 of The Hague Arbitration Convention would best be conducted between the Foreign Office and the American Embassy in Berlin in view of the difficulties in the way of instructing the Imperial Ambassador at Washington. In case the American Government agrees, the Foreign Office is prepared to submit to the Embassy a draft of such a compromis. The American Government's inquiry whether the German Goyern- ment will govern its naval operations in accordance with the German or American interpretation of the treaty stipulations in question pend- ing the arbitral proceedings has been carefully considered by German Government. From the standpoint of law and equity it is not pre- vented in its opinion from proceeding against American ships carrying contraband according to its interpretation until the question is settled by arbitration. For the German Government does not need to depart from the application of generally recognized rules of the law of maritime war, as the Declaration of London, unless and in so far as an exception based on a treaty, is established beyond all doubt ; in the case of the present difference of opinion between the German and the Amer- ican Governments such an exception could not be taken to be estab- lished except on the ground of the arbitral award. Moreover, the •disadvantages to Germany which would ensue from the American inter- pretation of the treatv stipulations would be so much greater as to be out of proportion to those which the German interpretation would entail for the United States. For whereas the American interpretation would materially impede Germany in her conduct of warfare, hardly any particular disadvantage to American citizens would result from the German interpretation, since they receive full reparation for any propertv damage sustained. Nevertheless the German Government, in order to furnish to the American Government evidence of its conciliatory attitude, has issued orders to the German naval forces not to destroy American merchant- men which have loaded conditional contraband, even when the condi- tions of international law are present, but to permit them to continue their voyage unhindered if it is not possible to take them into port. On the other hand, it must reserve to itself the right to destroy vessels 152 THE TREATIES OF 1785, 1799 AND 1828 carrying absolute contraband wherever such destruction is permissible according to the provisions of the Declaration of London. The undersigned begs to suggest that, the Ambassador bring the above to the knowledge of his Government, and avails himself of the opportunity to renew, etc. VON Jagow. Gerard. The Secretary of State to Ambassador Gerard [Telegram] Department of State, Washington, October 12, IQ15. You are instructed to present the following note to the German Minister of Foreign Affairs : In reply to Your Excellency's note of September 19, on the subject of the claim for damages for the sinking of the American merchant- man William P. Frye, I am instructed by the Government of the United States to say that it notes with satisfaction the willingness of the Imperial German Government to settle the questions at issue in this case by referring to a joint commission of experts the amount of the indemnity to be paid by the Imperial German Government under its admitted liability for the losses of the owners and captain on account of the destruction of the vessel, and by referring to arbitration the question of the interpretation of treaty rights. The Government of the United States further notes that in agreeing to this arrangement the Imperial German Government expressly states that in making pay- ment it does not acknowledge the violation of the treaty as contended by the Government of the United States, and that the settlement of the question of indemnity does not prejudice the arrangement of the differences of opinion between the two governments concerning the interpretation of the treaty rights. The Government of the United States understands that this arrangement will also be without prejudice to its own contention in accordance with the statement of its position in its note of August 10 last to Your Excellency on this subject, and the Government of the United States agrees to this arrangement on that understanding. Your Excellency states that the Imperial German Government believes that the nomination of an umpire should ;be dis- pensed with, because it has been the experience of the Imperial German Government that the experts named in such cases have always reached an agreement without difficulty, and that should they disagree on some point, it could probably be settled by diplomatic negotiation. The BETWEEN THE UNITED STATES AND PRUSSIA 153 Government of the United States entirely concurs in the view that it is not necessary to nominate an umpire in advance. It is not to be assumed that the experts will be unable to agree, or that if they are, the point in dispute can not be settled by diplomatic negotiation, but the Government of the United States believes that in agreeing to this arrangement it should be understood in advance that in case the amount of indemnity is not settled by the joint commission of experts or by diplomatic negotiation, the question will then be referred to an umpire if that is desired by the Government of the United States. Assuming that this understanding is acceptable to the German Gov- ernment, it will only remain for the Government of the United States to nominate its expert to act with the expert already nominated bv the German Government on the joint commission. It seems desirable to the Government of the United States that this joint commission of experts should meet without delay as soon as the American member is named and that its meetings should be held in the United States, because, as pointed out in m}- note to you of April 30 last, any evidence which the German Government may wish to have produced is more acceptable and can more conveniently be examined there than else- where. With reference to the agreement to submit to arbitration the question of treaty interpretation, the Government of the United States notes that in answer to its inquiry whether, pending the arbitral proceedings, the German Government will govern its naval operations in accordance with the German or American interpretation of the treaty stipulations in question, the reply of the German Government is that it "has issued orders to the German naval forces not to destroy American merchant- men which have loaded ' conditional contraband even when the condi- tions of international law are present, but to permit them to continue their voyage unhindered if it is not possible to take them into port," and. that "on the other hand it must reserve to itself the right to destroy vessels carrying absolute contraband whenever such destruction is per- missible according to the provisions of the Declaration of London." Without admitting that the Declaration of London is in force, and on the understanding that the requirement in Article SO of the Declara- tion that "before the vessel is destroyed all persons on board must be placed in safety" is not satisfied by merely giving them an opportunity to escape in lifeboats, the Government of the United States is willing, pending the arbitral award in this case, to accept the Declaration of London as the rule governing the conduct of the German Government in relation to the treatment of American vessels carrying cargoes of absolute contraband. On this understanding the Government of the United States agrees to refer to arbitration this question of treaty interpretation. The Government of the United States concurs in the desire of the Imperial German Government that the negotiations relative to the signing of the compromise referring this question of treaty interpreta- 154 THE TREATIES OF 178S, 1799 AND 1828 tion to arbitration under the provisions of Article 52 of The Hague Arbitration Convention, should be conducted between the German Foreign Office and tlie American Embassy in Berlin, and the Govern- ment of the United States will be glad to receive the draft compro-- mise, which you inform me the Foreign Office is prepared to submit to the American Ambassador in Berlin. Anticipating that it may be con- venient for the Imperial German Government to know in advance of these negotiations the preference of the Government of the United States as to the form of arbitration to be arranged for in the com- promise, my Government desires me to say that it would prefer, if agreeable to the Imperial Government, that the arbitration should be by summary procedure, based upon the provisions of Articles 86 to 90, inclusive, of The Hague Arbitration Convention, rather than the- longer form of arbitration before the Permanent Court at The Hague. Arrange for simultaneous publication of this note at earliest date which will give you time to notify .the Department. Lansing. Ambassador Gerard to the Secretary of State No. 1964.] American Embassy, Berlin, December 2, 1915. Sir: With reference to my telegram of even date^ and to previous correspondence on the subject of the claim for damages for the sinking' of the American merchantman William P\ Frye, I have the honor to transmit to you herewith a copy and translation of a note received from the Imperial Foreign Office, dated November 29, 1915, which replies to a note which I addressed to the Imperial Foreign Office on October 14, 1915, pursuant to the instructions contained in your tele- gram No. 2291, of October 12, 1915. A copy and translation of the draft of a compromis submitted by the Imperial German Government is likewise transmitted herewith. I have, etc., Gerard. [ In closu re — Translation ] The German Minister for Foreign Affairs to Am-bassador Gerard Berlin, November 2g, 1915. The undersigned has the honor to inform His Excellency, Mr. James- W. Gerard, Ambassador of the United States of America, in reply to- ^Not printed. BETWEEN THE UNITED STATES AND PRUSSIA 155 the note of -October 14, F. C). No. 5671, relative to indemnity for the sinking of the American merchant vessel William P. Frye, as well as to the settlement by arbitration of the difference of opinion which has arisen on this occasion, as follows: With regard first to the ascertainment of indemnity for the vessel sunk, the German Government is in agreement with the American Government in principle that the amount of damages be fixed by two experts, one each to be nominated by the German and the American Governments. The German Government regrets that it can not comply with the wish of the American Government to have the experts meet in Washington, since the expert nominated by it. Dr. Greve, of Bremen, director of the North German Lloyd, is unable to get away from here, and furthermore would be exposed to the danger of capture during a voyage to America in consequence of the conduct of maritime war by England contrary to international law. Should the American expert likewise be unable to get away, the two experts might perhaps get in touch with each other by correspondence. The German Government likewise regrets that it can not assent at this time to the nomination of an umpire as desired by the American Government, for apart from the fact that in all probability the experts will reach an agreement in the case of the William P. Frye with the same facility as was the case with similar negotiations with other neutral Governments, the assent of the German Government to the consultation of an umpire would depend materially upon whether the differences of opinion between the two experts pertained to questions of principle or merely to the appraisement of certain articles. The consultation of an umpire could only be considered at all in the case of appraisements of this nature. Should the American Government insist on its demands for the meet- ing of the experts at Washington or the early choice of an umpire, the ■only alternative would be to arrange the fixing of damages by diplo- matic negotiation. In such an event the German Government begs to await the transmission of a statement of particulars of the various •claims for damages accompanied by the necessary proofs. With regard to the arbitral treatment of the difiference of opinion relative to the interpretation of certain stipulations of the Prussian- American commercial treaties, the German Government has drawn up the inclosed draft of a compromis, which would have to be worded in the German and English languages and drawn up with due considera- tion of the two alternating texts. It is true that the draft does not accommodate the suggestions of the American Government so far as it is not in accordance with the rules of summary procedure pro- vided by chapter 4 of The Hague Arbitration Convention, but with the rules of regular procedure. The summary procedure is naturally intended only for diflferences of opinion of inferior importance, whereas the German Government attaches very particular importance to the interpretation of the Prussian-American treaties which have existed 156 THE TREATIES OF 1785, 1799 AND 1828 for over 100 years. Pursuant to the agreement made, any proposed amendments would have to be discussed between the Foreign Office and the American Embassy, and oral discussions would appear to be advisable. Until the decision of the permanent court of arbitration, the German naval forces will sink only such American vessels as are loaded with absolute contraband, when the preconditions provided by the Declara- tion of London are present. In this the German Government quite shares the view of the American Government that all possible care must be taken far the security of the crew and passengers of a vessel to be sunk. Consequently, the persons found on board of a vessel may not be ordered into her lifeboats except when the general conditions, that is to say, the weather, the condition of the sea, and the neighbor- hood of the coasts afford absolute certainty that the boats will reach the nearest port. For the rest the German Government begs to point out that in cases where German naval forces have sunk neutral vessels for carrying contraband, no loss of life has yet occurred. The undersigned begs to give expression to the hope that it will be possible for the two Governments to reach a complete understanding regarding the case of the William P. Frye on the above .basis, and avails himself of this opportunity to renew to His Excellency, the Ambassador, the assurance of his highest consideration. VON Jagow. [Translation] ARBITRATION COMPROMIS The Imperial German Government and the Government of the United States of America having reached an agreement to submit to a court of arbitration the difference of opinion which has arisen, occasioned by the sinking of the American merchant vessel William P. Frye by a German war-ship, in respect of the interpretation of certain stipulations of the Prussian-American treaties of amity and commerce, the under- signed, duly authorized for this purpose, have agreed to the following compromis: Article I A court of arbitration composed in accordance with the following stipulations is charged with the decision of the legal question: Whether according to the treaties existing between the parties, in particular Article XIII of the Prussian-American treaty of amity and commerce of July 11, 1799, the belligerent contracting party is pre- vented from sinking merchant vessels of the neutral contracting party for carrying contraband when such sinking is permissible according to general principles of international law. BETWEEN THE UNITED STATES AND PRUSSIA 157 Article II The court of arbitration shall be composed of five arbitrators to be ■ chosen among the members of the permanent tribunal of arjjitration at The Hague. Each government will choose two arbitrators, of whom only one may be a national of such country, as soon as possible, at the latest within two weeks from the day this compromis is signed. The four arbi- trators thus nominated shall choose an umpire within four weeks after they have been notified of their nomination; in case of an equal vote the president of the Swiss federal council shall be requested to select the umpire. Article III On March 1, 1916, each party shall transmit to the bureau of the permanent tribunal of arbitration 18 copies of its argument with authenticated copies of all documents and correspondence on which it intends to rely in the case. The bureau will arrange without delay for the transmission to the arbitrators and to the parties, each arbitrator to receive two copies, each party three copies. Two copies shall remain in the archives of the bureau. On May 1, 1916, the parties shall deposit their countercases with the supporting evidence and their statements in conclusion. Article IV Each party shall deposit with the international bureau at the latest on March 1, 1916, the sum of 3,000 gulden of The Netherlands toward the costs of the arbitral procedure. Article V The court of arbitration shall meet at The Hague on June 15, 1916, and proceed immediately to examine the dispute. Article VI The parties may make use of the German or the English language. The members of the court may use the German or the EngHsh language as they may choose. The decisions of the court shall be written in both languages. Article VII Each party shall be represented by a special agent whose duty shall be to act as an intermediary between the party and the court. These agents shall furnish the court any explanations which the court may 158 THE TREATIES OF 178S, 1799 AND 1828 demand of them ; they may submit any legal arguments which they may consider advisable for the defense of their case. Article VIII The stipulations of the convention of October 18, 1907, for the pacific settlement of international disputes, shall be applied to thi<; arbitral procedure, in so far as nothing to the contrary is provided bv the. above compromis. Done in duplicate at Berlin on the dav of PUBLICATIONS OF THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE Secretary's Office tYear Book for 1911; Year Book for 1912; Year Book for lJl.i-1914; Year Book for 191S ; fYear Book for 1916. Division of Intercourse and Education No. 1 Some Roads Towards Peace: A report on observations made IN China and Japan in 1912. By Dr. Charles W. Eliot. vi— 88 p. tNo. 2 German International Progress in 1913. By Professor Dr. WiLHELM PaSZKOWSKI. ill — 11 p. 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Price to be announced. Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 27 OFFICIAL DOCUMENTS BEARING ON THE ARMED NEUTRALITY OF 1780 AND 1800 PUBLISHED BY THE ENDOWMENT WASHINGTON. D. C. 1917 Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 27 OFFICIAL DOCUMENTS BEARING ON THE ARMED NEUTRALITY OF 1780 AND 1800 PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 ^^773 "^ IJt. . Prefatory Note In President Wilson's address before Congress on February 26, 1917, after recounting the relations between Germany and the United States and the failure of diplomatic means to protect neutral rights, he stated that "there may be no recourse but to armed neutrality, which we shall know how to maintain and for which there is abundant American precedent." In addition to Ainerican precedent, which has already been instanced in pamphlets No. 24, Documents relating to the Controversy over Neutral Rights betxveen the United States and France, i'j<)j-i8oo, and No. 25, Opinions of the Jittorneys General and Judgments of the Supreme Court and of the Court of Claims of the United States re- lating to the Controversy over Neutral Rights between the United States and France, ijQy-iSoo, there is European precedent for armed neutrality; for in 1780 and in 1800 the leading neutral Powers of Europe entered into an agreement to protect their rights against bel- ligerent invasion, by force of arms if necessary. The texts of the agreements constituting the armed neutrality of 1780 and of 1800, to- gether with the orders putting them into effect and diplomatic corre- spondence bearing thereon, are reproduced in the present pamphlet. The originals of most of these documents are in foreign languages. English translations, wherever available, have been used, and in other cases English translations have been made especially for the present occasion. As in the previous pamphlets, there is no expression, of per- sonal, opinion, and the matter contained in the present pamphlet is issued in the interest and for the con^'enience of the public without seeking to influence the judgment which it may reach. An extract from Henry Wheaton's History of the Law of Nations, dealing with subject of the armed neutrality, has been prefixed for the benefit of the reader as an introduction to the official document. James Brown Scott, Director of the Division of International La/w. Washington, D. C, February ?8, igif. Contents PAGE Prefatory Note iii Introduction — Extract from Wheaton's History of the Law of Nations, giving a brief history of the armed neutrality 1 1780, February 28. Declaration of the Empress of Russia regarding the prin- ciples of armed neutrality, addressed to the Courts of London, Ver- sailles and Madrid 23 April 3. Russian memorandum presented to the States-General of the Netherlands 25 April 5. Explanations demanded by the Court of Sweden reUtive to the Russian project for an armed neutrality 26 April 13. Extract from the register of the resolutions of the States- General of Holland and West Friesland 27 April 17. Declaration of the Court of England to the States-General of the Netherlands 29 April 18. Reply of the King of Spain to the declaration of the Em- press of Russia 31 April 23. Reply to the Court of Great Britain to the declaration of the Empress of Russia 32 April 24. Extract from the register of resolutions of the States- General of the Netherlands replying to the Russian memorandum . . 33 April 25. Reply of the King of France to the declaration of the Em- pres of Russia 35 April 29. Reply of the Court of Russia to the explanations demanded by Sweden relative to the project for an armed neutrality 37 May 8. Declaration of His Danish Majesty regarding the neutrality of the Baltic Sea, communicated to the Court of the belligerent Powers 39 Mav 19. Russian ordinance concerning navigation under the merchant flag of . Russia 39 May 25. Reply of the Court of France to the Danish declaration re- garding the neutrality of the Baltic Sea 43 July 8. Declaration of His Danish Majesty to the Courts of London, Versailles and Madrid 44 July 9. Convention for an armed 'neutrality between Russia and Den- mark and Norway 46 VI CONTENTS PAGE 1780, July 9. Additional separate articles to the convention for an armed neutrality between Russia and Denmark 54 July 21. Treaty between Great Britain and Denmark 57 July 21. Declaration of the King of Sweden to the Courts of London, Versailles and Madrid 58 July 25. Reply of the Court of London to the Danish declaration ... 59 July 27. Reply of France to the Danish declaration 60 August 1. Convention for an armed neutrality between Russia and Sweden 61 August 1. Additional separate articles to the convention for an armed neutrality between Russia and Sweden 66 August 3. Reply of the Court of London to the Swedish declai ation . . 66 August 4. Reply of the Court of France to the Swedish declaration . . dl August 7. Reply of the Court of Spain to the Danish declaration on armed neutrality 68 September 7. Declaration by which His Danish Majesty accedes to the convention of August 1, 1780, between Russia and Sweden.... 70 September 9. Declaration by which His Majesty the King of Sweden accedes to the convention concluded July 9, 1780, betwen Russia and Denmark 71 October 5. Resolution of the United States Congress regarding ac- cession to the principles contained in the declaration of the Empress of Russia 72 November 7. Memorandum of the Court of Russia presented to the Courts of the belligerent Powers to notify them of the accession of Denmark and Sweden to the system of armed neutrality 73 November 20. Resolution of the States-General of the Netherlands regarding their accession to the system of armed neutrality 74 December 12. Reply of France to the notification from Her Majesty the Empress of Russia of the accession of Denmark and Sweden to the system of armed neutrality Id 1781, January 4. Act by which the States-General of the Netherlands ac- cede to the conventions for an armed neutrality concluded July 9 and August 1, 1780, between Russia and Dehmark,' and Russia and Sweden "^7 January 4. Separate act of accession of the Netherlands to the con- ventions for an armed neutrality concluded July 9 and August 1, 1780, between Russia and Denmark, and Russia and Sweden 81 January. Declaration of the States-General of the Netherlands relative to their accession to the conventions for an armed neu- trality between Russia and Denmark and Russia and Sweden 82 CONTENTS vii PAGE 1781, January. Declaration of the States-General of the Netherlands to the Courts of the belligerent Powers, to notify them of their accession to the conventions for an armed neutrality between Russia and Denmark, and Russia and Sweden 83 January 12. ' Extract from the register of resolutions of the States- General of the Netherlands regarding the system of armed neu- trality 84 January 26. Netherland ordinance concerning commerce and navi- gation 89 February 28. Memorandum of the Court of Sweden for the Court of Russia concerning the effect of the accession of the Netherlands to the system of armed neutrality 96 February 28. Memorial of the States-General of the Metherlands to the Court of Sweden 99 Rescript of Her Majesty the Empress of Russia to Count de Moussin Pouschkin, her Minister to Sweden 104 April 30. Prussian declaration and ordinance concerning navigation and maritime commerce 108 May 19. Convention between Russia and Prussia for the maintenance of the freedom of commerce and navigation of neutral nations, and separate articles 113 July 10. Treaty between His Majesty the Emperor of the Romans and Her Majesty the Empress of Russia relative to an armed neu- trality 119 October 9. Act of accession of His Majesty the Emperor of the Ro- mans to the maritime association 124 October 19. Act of Her Imperial Majesty of Russia accepting the accession of the Emperor of the Romans 126 November 3. Prussian declaration and ordinance concerning naviga- tion 128 December 8. Detailed elucidation of the Prussian ordinances of April 30 and November 3, 1781, concerning commerce and navigation . . 130 1782, July 13. Convention between Russia and Portugal for the maintenance of the freedom of neutral navigation and commerce 133 December 12. Austrian Netherlands ordinance concerning maritime regulations 136 1783, February 21. Act by which His Majesty the King of the Two Sicilies accedes to the system of armed neutrality 139 1800, April 10. Letter from Mr. Merry, British Charge -d' Affaires at Den- mark, to Count Bernstorff, Danish Secretary of State for Foreign Affairs, regarding the right of visitation at sea 142 viii CONTENTS PAGE 180O, April 19. Reply of Count Bernstorff to letter of Mr. Merry regard- ing the right of visitation at sea 145 July 29. Note from Count Wedel-Jarlsberg to Lord Grenville rela- tive to the capture of the frigate Freya 14/ July 30. Reply of Lord Grenville to Count Wedel-Jarlsberg rela- tive to the capture of the frigate Freya 149 August 2. Reply of Count Wedel-Jarlsberg to Lord Grenville ISI August 16. Reply of Count Bernstorff to Lord Whitworth 152 August 21. Extract from the reply of Lord Whitworth to Count Bernstorff 154 August 26. Reply of Count Bernstorff to Lord Whitworth 155 August 27. Reply of Lord Whitworth to Count Bernstorff 157 August 27. Declaration by which His Majesty the Emperor of Russia invited Sweden, Prussia and Denmark to conclude conventions for the reestablishment of the rights of neutrality 157 August 29. Preliminary convention between Denmark and England regarding the Freya dispute 160 August 29. Decree of the Emperor of Russia regarding sequestration of the property of Englishmen 161 September. On the subject of the capture of neutral ships and of the project of confederacy supposed to exist in the north against Great Britain 162 September 17. Letter of the Spanish Secretary of State to the Swedish Minister regarding British violations of the Swedish flag. . 175 September 17. Circular letter of the Spanish Minister to the Foreign Ambassadors and Ministers at the Court of Madrid 177 October IS. Refusal of the Emperor of Russia to receive an Am- bassador from the Emperor of Germany 178 October 22. Reply of the Swedish Minister to the Spanish Secretary of State 178 November. Letter of the Chancellor of Sweden to the Minister of Prussia concerning the British violations of the Swedish flag. . . . 180 November 7. Extract from the Gazette of the Court of St. Peters- burg regarding an embargo on British vessels in ports of the Island of Malta 182 November 16. First note of Lord Carysfort to Count Haugwitz re- garding the occupation of Cuxhaven by Prussian troops 182 November 18. Second note of Lord Carysfort to Count Haugwitz regarding the occupation of Cuxhaven by Prussian troops 184 CONTENTS IX PAGE 1800, November 18. Order of His Majesty the Emperor of Russia relative to the embargo on English vessels 185 November 20. Reply of Count Haugwitz to Lord Carysfort 18S November 23. Proclamation of the King of Prussia announcing the occupation of Ritzebiittel and Cuxhaven 187 December 16. Explanatory answer to the observations on the subject of the capture of neutral ships 188 December 16. Convention between Russia and Sweden for the re- establishment of an armed neutrality 199 December 16. Convention between Russia and Denmark for the re- establishment of an armed neutrality 205 December 18. Convention between Russia and Prussia for the re- establishment of an armed neutrality and supplementary article 211 December 23. Swedish maritime regulations 217 December 27. Note of Mr. Drummond to the Danish Minister for Foreign Affairs regarding the armed neutrality league 220 December 29. Reply of the Spanish Ambassador at the Court of Stockholm to the Swedish High Chancellor respecting the British violation of the Swedish flag 221 December 31. Reply of the Danish Minister for Foreign Affairs to Mr. Drummond 222 1801, January 10. Reply of Count Wedel-Jarlsberg to Lord Granville. ... 224 January 14. British instructions to Lieutenant General Trigge re- garding His Majesty's forces in the Leev/ard Islands 226 January 14. Additional instructions to Lieutenant General Trigge. . 227 January 14. British Order of Council laying an embargo on Russian, Danish and Swedish ships 228 January IS. Notification of Lord Grenville to the Danish and Swedish Ambassadors regarding an embargo on Danish and Swedish ships 228 January 17. Reply of Baron Ehrensward to British notification re- garding an embargo on Danish and Swedish ships 230 January 27. Note of Lord Carysfort to Count Haugwitz regarding the armed neutrality league 232 January 28. British Orders of Council respecting the embargo on Russian, Danish and Swedish vessels 236 January 28. British Orders of Council respecting payments to sub- jects of Russia, .Sweden and Denmark 238 X CONTENTS .PACE 1801, February 1. Note of Lord Carysfort to Count Haug\»itz regarding relations between Great Britain and Russia 238 February 7. Swedish protest on the subject of the alleged proceeding in the harbor of Barcelona 240 February 12. Reply of Count Haugwitz to Lord Carysfort 245 February 12. Russian proclamation interdicting the transportation of merchandise through Prussia 249 February 23. Note of Count Wedel-Jarlsberg to the British Minister regarding the embargo on Danish vessels 249 March 4. Note of Count Wedel-Jarlsberg to the British Minister regarding the embargo on Danish vessels. . '. 251 March 4. Note of Baron Ehrensward to Lord Hawkesbury regard- ing the embargo on Swedish vessels 252 March 7. Reply of Lord Hawkesbury to Baron Ehrensward 255 March 28. Manifesto of Prince Charles regarding the Danish oc- cupation of the city of Hamburg 256 March 29. Proclamation of the Senate of Hamburg regarding the Danish occupation of the city 257 March 29. Danish Ordinance laying an embargo on English ships and goods 257 March 30. Declaration of the King of Prussia to the Royal and Elec- toral College at Hanover and to the commanders of the Hanoverian troops 258 April 3. Instructions from the British Admiralty to Admiral Dickson 260 June 17. Convention between Great Britain and Russia relative to neutral trade, and additional articles of October 20, 1801 261 October 23. Act of accession of His Majesty the King of Denmark and Norway to the convention of June 17, 1801, between Great Britain and Russia 270 1803, May 4. Ordinance of the King of Denmark regulating the conduct and defining the obligations of the merchants and mariners of his States in time of war between other maritime Powers 273 June. Declaration of neutrality of the Republic of the Seven Islands 280 June 3. Decree of the Prince Regent of Portugal concerning the observance of neutrality in his States 280 July 9. Proclamation of the Prince and President of the Senate of the Republic of Seven Islands containing regulations governing the conduct of his subjects with regard to the maintenance of neutrality 281 August 7. Ordinance of Austria on the observance of neutrality 283 1804, January 21. New regulations of Sweden regarding the conunerce and navigation with foreign maritime Powers in time of war 290 OFFICIAL DOCUMENTS BEARING ON THE ARMED NEUTRALITY OF 1780 AND 1800 Introduction^ In the meantime Spain had been drawn into the war as an ally of France under the family compact of 1761, and Great Britain had demanded in vain from Holland that assistance which the republic was bound to render by the subsisting treaties of alliance and guar- antee between the two countries. Indeed appearances indicated that Great Britain was soon -to encounter an enemy in her ancient ally. Her naval, commercial, and colonial superiority were thus threatened by a formidable confederacy of the maritime Powers of Europe com- bined with the youthful energies of her own revolted colonies. In this extremity, the British Cabinet turned its attention to Russia, as a Power whose friendship and aid might be secured by the applica- tion of suitable means. Sir James Harris (afterwards Lord Malms- bury) was instructed to sound the disposition of the Empress Cath- arine, and for this purpose addressed himself to Panin, Chancellor of the Empire, and Potemkin, the reigning favorite of that princess. The former was unfavorable to the views of the British Cabinet; but the latter opened to their Ambassador the means of secret con- ference with the Empress, who consented to offer her armed media- tion in the war between Great Britain on the one side, and France, Spain, and the United States on the other, as an equivalent for Rus- sia's being allowed to prosecute her designs on the Turkish Empire. But the inclinations of the Empress were still resisted by Panin, who endeavored to convince her that the true ititerests of the Russian State would not be promoted by such an alliance ; and an official answer was accordingly returned declining the British overtures. Harris was dis- concerted by this unexpected result, but received assurances from Potemkin, in the name of the Empress, of unchanged good-will, and an expression of the hope that circumstances would soon enable her to conform her conduct to her wishes. An incident now occurred which seemed to favor the designs of the British negotiator. Two Russian vessels laden with corn, and iprom Henry Wheaton's History of the Law of Nations in Europe and America from the Earliest Times to the Treaty of Washington, 1842, (New York, 1845), pp. 295-304 and 397-421. 2 THE ARMED NEUTRALITY OF 1780 AND 1800 bound to the Mediterranean, were seized by Spanish cruisers upon the ground that they were intended to supply the fortress of Gibraltar. The Empress instantly demandied satisfaction from the Spanish Court, and was persuaded by Potemkin to order, without consulting Panin, the equipment of a fleet at Kronstadt, which was destined to cooperate wiith Great Britain against Spain and her allies, in case redress should be refused. The fitting out of the fleet could not long be concealed from Panin, nor did he doubt its destination. But he determined to carry into effect his own views by appearing to forward those of his rival. Far from appearing to oppose the designs of the Empress, he declared that he himself participated in her indignation at the conduct of Spain, and entirely approved of her determination to require satis- faction for the injury done to the neutral navigation of her subjects engaged in a lawful commerce. He would even go further ; he would exhort his sovereign to seize this opportunity of solemnly announcing to Europe that she would not sulifer the wars waged by other Powers to affect injuriously the accustomed trade of Russia. He represented that such a course would secure the friendship and cooperation of all the neutral Powers, and would compel Spain to grant complete satis- faction for the injury she had committed. The true principles of neutrality, sanctioned by the natural law of nations, had been hitherto too little respected in practice. They had hitherto wanted the support of a sovereign uniting sufficient power, wisdom, and benevolence to cause them to be respected. These requisites were now united in Catharine, and she had an opportunity of acquiring new titles to glory, of becoming a lawgiver to the high seas, of restraining the excesses of maritime warfare, and affording to the peaceful commerce of neutrals such a security as it never had possessed. The Empress was completely carried away by these representations so flattering to her pride and ambition. She ordered Panin to prepare a statement of the principles he had developed, to be communicated to the belligerent Powers, as the rules to be observed for the security of Russian navigation and commerce, and to neutral States, as the basis of a league to be formed between them for the protection of neutral rights.^ ^Von Dohm, DenkwUrdigkeiten meiner Zeit, vol. ii, pp. 100-150 ; Memoire sur la Neutraiite armee par M. le Comte de Goertz, p. 104. This account given by the Count de Goertz of the history of the armed neutrality is confirmed by what the Empress Maria Theresa said to Baron de Breteuil, Minister of France. "11 n'y a pas," lui-dit elle a I'occasion de la OFFICIAL DOCUMENTS 3 In the declaration of the Empress of Russia, which was accordingly drawn up, under date of the 26th February, 1780, and communicated to the Courts of London, Versailles, and Madrid, these rules are laid down as follows: 1. That all neutral vessels may freely navigate from port to port and on the coasts of nations at war. 2. That the goods belonging to the subjects of the Powers at war shall be free in neutral vessels, except contraband articles. 3. That the Empress, as to the specification of the above-mentioned goods, holds to what is mentioned in the 10th and Uth articles of her treaty of commerce with Great Britain, extending these obliga- tions to all the Powers at war.^ 4. That to determine what is meant by a blockaded port, this denom- ination is only to be given to that where there is, by the arrangements of the Power which attacks it with vessels; stationed sufficiently near, an evident danger in attempting to enter it. Such was the origin of the first armed neutrality of 1780. It sprung from no enlarged and beneficent views of improvement in the mari- time law of nations hitherto sanctioned by general practice. It was the accidental result of a mere court intrigue, and of the rivalry, between two candidates for the favor of a dissolute, ambitious, and vain-glorious woman. Catharine herself had a very imperfect idea oT the immense importance' of the measure she had adopted and of the efifects it might produce. So ignorant was she of commerce, that she flattered herself with having at once vindicated her own honor and shown her strong regard for Great Britain. Panin took care not to neutralite armee; "il n'y a pas jusqu'a ses vues les plus mal combinees, qui ne toument a son profit et a sa gloire; car vous savez sans doute que la declaration, qu'elle vient de faire pour sa neutralite maritime, avail d'abord ete arretee dans des termes et daris des vues absolument favorables a I'An- gleterre. Cet ouvrage avait ete fait par la seiile influence de M. le Prince Potemkin, et a I'insu de M. le Comte de Panin ; et cette declaration, inspiree par I'Angeleterre, etait au moment de paraitre, lorsque M. de Panin, qui en a ete instruit, a trouve moyen de la faire entierement changer et de la tourner absolument en votre faveur." Flassan, Histoire de la ' Diplomatie Prangaise, vol. vii, p. 272w. iThe treaty of amity and commerce of 1766 between Great Britain and Russia, Article 10, restricts contraband to "munitions of war"; and the 11th article defines these to consist of "canons, mortiers, armes a feu, pistolets, grenades, boulets, balles, fusils, pierres-a-feu, meches, poudre, salpetre, souffre, cuirasses, piques, epees, ceinturons, poches a cartouche, selles et brides, au dela de la quantite qui pent etre necessaire pour I'usage du vaisseau," etc. Martens, Recueil de Traites, vol. 1, p. 395. 4 THE ARMED NEUTRALITY OF 1780 AND 1800 undeceive her and, fearing that his intrigue might fail, begged she would not communicate with any one until the couriers were sent off with the declaration. But she could not refrain from saying confi- dentially to the British Ambassador that there would soon be deliv- ered in her name to all the belligerent, Powers a manifesto which would be completely satisfactory to the British Government; and conde- scended even to give him leave to communicate thus much to his Court. The communication which he accordingly made raised its expectations to the highest pitch, and the disappointment was pro- portionably greater when it learnt the true nature of the measures adopted by the Russian Cabinet. The British Government dissembled its resentment, and replied to the Russian declaration with cold dignit}'-, that His Majesty had hith- erto acted towards neutral Powers "conformably to the clearest prin- ciples generally acknowledged as the law of nations, being the only law between Powers where no treaties subsist, and agreeably to the tenor of his different engagerhents with other Powers, where those engagements have altered this primitive law by mutual stipulations proportioned to the will and convenience of the contracting Parties," and that ''strongly attached to Her Majesty the Empress of all the Russias by the ties of reciprocal friendship and common interest, the King, from the commencement of those troubles, gave the most pre- cise orders respecting the flag of Her Imperial Majesty and the com-, merce of her subjects, agreeably to the law of nations, and the tenor of the engagements stipulated by his treaty of commerce with her, and to which he shall adhere with the most scrupulous exactness. The Court of Spain answered the Russian declaration by professing its determination to respect the neutral flag of all the Powers that had consented, or should consent to defend it, until His Catholic Majesty ascertained what part Great Britain should take, and whether its navy and privateers would keep within due bounds. And to show to all the neutral Powers how much Spain was desirous of observ- ing, in time of war, the same rules of which she had claimed the observance whilst neutral. His Majesty conformed to those laid down by Russia, "with the understanding however that with regard to the blockade of Gibraltar, the danger of entering subsists as determined by the 4th article of the said declaration." The Court of France answered, that the principles laid down by Russia were no other than the rules already prescribed to the French OFFICIAL DOCUMENTS 5 navy, the execution of which was maintained with an exactness known and applauded by all Europe. "The freedom of neutral vessels, re- strained in a few cases only, is a direct consequence of natural law, the security of nations, and the consolation even of those who are afflicted by the scourge of war. The King has therefore been desirous to procure, not only to the subjects of Her Majesty the Empress of Russia, but to all other States which continue neutral, the freedom of navigation on the same conditions with those announced in the declar- ation, to which His Majesty this day replies. The King believed that he had already advanced the general good, and prepared a glorious epoch of his reign, in establishing by his example those rights which every belligerent ought and must recognize as belonging to neutral vessels. This hope has not been vain, since the Empress, whilst en- gaging to observe the most exact neutrality, has declared in favor of that system which the King sustains at the price of the blood of his people, whilst she claims the same laws which His Majesty would make the basis of the universal maritime code." Denmark and Sweden concurred, in approvmg the principles of the Russian declaration, and notified their concurrence to the belligerent P'owers. Great Britain answered to the Danish notification, that during the whole course of the present war with France and Spain, she had con- stantly respected the rights of all friendly and neutral Powers, ac- cording to subsisting treaties, and according to the clearest and most generally recognized principles of the law of nations common to all nations who are bound by no special conventions. Such conventions existed between Great Britain and Denmark, and the Danish flag and commerce would continue to be respected according to their stipu- lations, which defined the mutual rights and duties of the two nations and which could not be changed without their mutual consent. Until thus changed, they constituted an inviolable law for both parties, which had been observed and would continue to be observed by the British Government with that spirit of. equity which regulated all its conduct, and in the just expectation of reciprocal fidelity on the part of Denmark to its engagements. To the notification of Sweden the British Cabinet answered in a similar manner, with a special reference to the stipulations of the exist- ing treaties between the two countries, which were clear and formal, and could not be changed without the mutual consent of the contract- 6 THE ARMED NEUTRALITY OF 1780 AND 1800 ing Parties. As such, they would be observed by Great Britain, as a sacred and inviolable law.^ Denmark and Russia concluded at Copenhagen on the 9th July, 1780, the convention of armed neutrality for the maintenance of those principles by the equipment of a joint fleet, and for their mutual defense against any Power who should attack either of the contract- ing Parties on account of their reciprocal engagements. By this con- vention, to which Sweden acceded on the 9th September, 1780, the Baltic sea was declared to be mare cloMsum against the ships of war of the belligerent Powers; and the contracting Parties referred to their respective treaties with the belligerent Powers for the definition of contraband. In the meantime a diplomatic struggle was going on in the United Provinces between the agents of France and Great Britain, the former seeking to confirm the republic in her resolution of remaining neutral, and the latter insisting on her furnishing the succors stipulated by the existing treaties of alliance and guarantee. In order to determine the conduct of the Dutch, the French Government issued, on the 14th of January, 1779, an ordinance suspending the operation of the first article, that of the 26th July, 1778, in respect to their navigation, ex- cepting that of Amsterdam. The operation of this ordinance was again suspended as respected the entire province of Holland on the 2d of July, 1779, which still continued to be privileged under the for- mer ordinance of 1778. France thus sought to divide the councils of the republic, whilst the British Court notified the States-General that, if they did not, within the term of three weeks, furjiish the stipulated succors. Great Britain would no longer consider their flag as privileged by treaty, but would conduct [itself], in respect to it, according to the strict principles of the preexisting law of nations. This menace was executed by the proclamation of the 17th April, 1780, which author- i"Le 12 article du traite de 1661 reglant la forme du certificat dont les vaisseaux doivent etre munis, en donne cette raison : Ne vero libera ejusmodi navigatio aut transitus foederati unius ej usque subditorum ac incolarum, durante bello alterius foederati, terra marive cum aliis gentibus fraudi sit alteri confoederato, mercesque et bona hostilia oc- cultari possint. "Le meme article contient une stipulation precise et formelle. La voici : Si hostis bona in confoederati navigio reperiantur, quod ad hostem per- tinet, praedae solum modo cedat, quod vero ad confoederatum illico resti- tuatur. "Le traite de 1666 prescrit le meme certificat, et en donne les memes raisons." Martens, Recueil de Traites, vol. 3, p. 188. OFFICIAL DOCUMENTS 7 ized the seizure of Dutch vessels, bound from one enemy's port to another, or laden with enemies' property. Whilst thus agitated by alternate hopes and fears, the States-General were invited by Russia to accede to the convention of armed neutrality which had been formed by the Baltic Powers. After long delays and hesitation, the resolution for this purpose was, at length, passed on the 20th Novem- ber, 1780; but it was even then not unanimous, the three provinces of Zealand, Guelders, and Utrecht, having refused their assent. This was followed on the 20th December. 1780, by a declaration of war agaiinst the United Provinces on the part of Great Britain, grounded upon the alleged fact of their having concluded a secret treaty ac- knowledging the independence of the United States of America. The United Provinces demanded from the northern Powers the succors stipulated by the convention of armed neutrality ; but this demand was rejected, upon the ground that the rupture between Great Britain and Holland, had actually taken place before the accession of the latter to the armed neutrality, and that the causes of war, stated in the British declaration, were entirely foreign to the objects of the neutral alliance; The United States of America acceded to the principles of the armed neutrality by the ordinance of Congress of the 7th April, 1781. Prussia acceded to the armed neutrality on the 8thi May, 1781. Austria acceded to the principles of the armed neutrality, but not to the conventions by which it was formed, on the 9th October, 1781. Portugal acceded to the conventions on the 13th July, 1782. The King of the Two Sicilies acceded to the conventions on the 10th February, 1783. The armed neutrality of the northern Powers continued to hang as a dark cloud constantly menacing the safety of the British Empire until the peace of 1783. Being engaged in war with France, Spain, Holland, and the United States of America, the addition of the hos- tility of those Powers might have turned the already doubtful balance against her naval superiority. It was with this view, and also to detach Holland from the confederacy, that Great Britain offered, in 1782, to make a separate peace with the republic, under the mediation of Russia, on the basis of the treaty of 1674, by which, as Mr. Fox, then Secretary of State for Foreign Affairs, stated in his communica- tion to the Russian Minister in London, "the principles of the armed neutrality are established in their widest extent to all the contracting 8 THE ARMED NEUTRALITY OF 1780 AND 1800 Parties. His Majesty, therefore, does not make any difficulty to say, that he will accept, as the basis of a separate peace between him and the States-General, a free navigation, according to the principles de- manded by Her Imperial Majesty in her declaration of the 26th Febru- ary, 1780." This negotiation proved abortive, and Great Britain continued to act towards the Powers which remained neutral during the American war, according to the preexisting law of nations, as understood and prac- ticed by her. She, however, asserted her maritime pretensions with much forbearance and caution, and suffered the rule she had estab- lished in the war of 1.756, relating to the enemy's coloinial trade, to slumber m oblivion.'- Whilst this negotiation- was going on, the Emperor of Russia, who had separated himself, first from the alliance of Austria, and subse- quently from that of Great Britain, proposed to the Courts of Den- mark, Prussia, and Sweden, to conclude a convention for the revival of the principles of the armed neutrality of 1780. This proposition was grounded principally upon the necessity of concerting on the part of the northern Powers measures of defense against aggressions similar to that which it was alleged had been committed on the Danish frigate Freya; and the Emperor Paul no sooner heard of the arrival of a British fleet in the Sound, than he ordered a sequestration to be placed upon all British property in the Russian ports. The signature of the convention of the 29th August, between Denmark and Great Britain, induced him to retract this measure. But the refusal of the British Government to deliver to him the possession of the island of Malta, which he claimed under an alleged agreement with that Gov- ernment, induced him to lay an embargo on all British vessels. Three treaties were signed at St. Petersburg on the 16th December, between Eussia and Sweden and between Russia and Prussia, and on the 18th between Russia and Prussia: and as each of these Powers acceded tO' the treaties of the others with Russi-a, they formed together a sort of quadruple alliance. iHere follows a history of the period extending to the year 1800. 2i. e., the negotiation between Great Britain and Denmark terminated by the convention of Copenhagen of August 29, 1800, by which it was agreed that the Danish Government should suspend the granting of convoy until the ques- tion of right should be settled by a definitive convention. OFFICIAL DOCUMENTS 9 By the first article of these treaties, the contracting Parties agreed to prohibit to their subjects all trade in contraband of war with any of the belligerent Powers. The second article confined the list of contraband to military stores, as stipulated in the armed neutrality of 1780 by reference to the treaty of 1766 between Great Britain and Russia. But it was provided that this stipulation should be without prejudice to the particular stipulations in anterior treaties with the belligerent Parties, by which objects of a similar kind are reserved, prohibited, or permitted. The third article provided, that the list of contraband articles, being thus determined and excluded from neutral commerce, the contracting Parties had resolved that all other trade should remain perfectly free. It was further declared, by the same article, that in order to provide a sufficient security for the general principles of natural law, of which the freedom of commerce and navigation and the rights of neutral nations are a direct consequence, they had determined no longer to suffer them to depend upon arbitrary interpretation suggested by isolated and temporary interests. With thig view they had agreed : 1. That every vessel may navigate freely, from port to port, and on the coasts of nations at war. 2. That the goods belonging to the subjects of the Powers at war shall be free in neutral vessels, except contraband articles. 3. That to determine what is meant by a blockaded port, this denom- ination is only to be given to that where there .is, by the arrangement of the Power which attacks it with vessels, stationed sufficiently near so that there is an evident danger in attempting to enter it; and that any vessel, sailing towards a blockaded port, should not be considered as contravening the convention, unless, after having been notified by the commander of the blockading force of the existence of the block- ade, she should still endeavor to enter the blockaded port by means of force or fraud. 4. That neutral vessels shall only be detained for just cause and evident facts, that they shall be adjudged without delay, that the pro- cedure shall be always uniform, prompt, and legal; and that in every case, besides the damages awarded to the injured parties, complete satisfaction shall be given for the insult to the national flag. 5. That the declaration of the officers, commanding the public ships which shall accompany the convoy of one or more merchant vessels, that the ships of his convoy have no contraband articles on board.. 10 THE ARMED NEUTRALITY OF 1780 AND 1800 shaill be deemed sufficient to prevent any search on board the convoy- ing vessels or those under convoy. The remaining articles provided for a joint armament to protect the neutral commerce of the subjects of the contracting Parties, and for an eventual alliance, in case either of them should be attacked on account of these engagements. The Danish Government, at first, hesitated to ratify the treaty, which had been signed by their Ministers at St. Petersburg. It was already bound by the convention of Copenhagen to Great Britain not to grant convoys to its merchant vessels until the question should be finally determined between the two Powers. An unconditional accession to the treaties of armed neutrality would seem to be a violation of its previous engagements with Great Britain. In the meantime, the British Minister at Copenhagen, by his note dated the 27th December, had demanded a clear, frank, and satisfactory answer upon the nature, objects, and extent of the obligations Denmark might have contracted, or the negotiations she was still pursuing with the other northern Powers. Count Bernstorff, in his reply to this note, of the 31st De- cember, denied that the engagements his Government was upon the point of contracting were hostile to Great Britain, or inconsistent with the previous convention of the 29th August. He asserted, that a conditional and temporary suspension of the exercise of a right could not be considered as an abandonment of the right which was incon- testable, and for the maintenance of which the northern Powers were about to provide by a mutual concert, which far from compromising their neutrality, was intended to confirm it. The British Government replied to this note by an order in council, dated the 14th of January, 1801, laying an embargo on all Russian, Swedish, and Danish vessels. Lord Grenville notified this order to the Ministers of Denmark and Sweden, declaring that the new maritime code of 1780, now sought to be revived, was an innovation highly, injurious to the dearest interests of Great Britain, and which Russia herself had renounced by the engagements contracted between her and Great Britain at the commencement of the then present war. These measures decided Denmark to adhere unconditionally to the armed neutrality by a declaration published on the 27th February, 1801. Great Britain continued to temporize, from motives of policy, with Prussia, the .remaining party to the northern alliance. This did not OFFICIAL DOCUMENTS 11 however prevent the Prussian Cabinet from cooperating with Den- mark in shutting the mouths of the Elbe and the Weser, against British commerce. The Danish troops occupied Hamburg and Lubeck, whilst Hanover and Bremen were seized by Prussia. In the meantime, the war commenced between the Baltic Powers and Great Britain by the battle of Copenhagen, April 2, 1801, the result of which pro- duced an armistice with Denmark. The death of the Emperor Paul dissolved the confederacy which had been formed under his auspices. The armistice with Denmark was extended to Russia and Sweden and the Hanseatic towns were evacuated by the Danish and Prussian troops. The embargoes were raised on both sides, and a negotiation opened at St. Petersburg for regulating the points in controversy. This negotiation resulted in the signature of a convention between Great Britain and Russia on the 5th/17th of June, 1801, the preamble of which stated that: [Here follows the text of the treaty.] The Court of Copenhagen acceded to this convention, on the 23d October, 1801, and that of Sweden, on the 18/30th March, 1802. The list of contraband inserted in the convention differed from that contained in the 11th article of the treaty of 1661 between Great Britain and Sweden, whilst the convention reserved the special stipu- lations of the contracting Parties with other Powers relating to con- traband. In order to prevent a recurrence of the differences which had arisen relative to the 11th article of the treaty of 1661, a conven- tion was signed at London on the 25th July, 1803, between Great Britain and Sweden, by which the list of contraband contained in the convention of 1801 was augmented with the addition of the articles of coined money, horses, and the necessary equipments of cavalry, ships of war, and all manufactured articles serving immediately for their equipment, all which articles were subjected to confiscation. It was further stipulated, that all naval stores, the produce of either country, should be subject to the right of preemption by the belligerent, upon condition of paying an indemnity of ten per centum upon the invoice price, or current value, with demurrage and expenses. If bound to a neutral port, and detained upon suspicion of being bound to an enemy's port, the vessels were to receive an indemnity, unless the belligerent Government chose to exercise the right of preemption ; in which case, the owners were to' be entitled to receive the price 12 THE ARMED NEUTRALITY OF 1780 AND 1800 which the goods would have sold for at their destined port, with demurrage and expenses.^ We have thought it necessary to dwell thus minutely upon the cir- cumstances which attended the formation of the convention of 1801, because it may justly be considered, not merely as forming a new conventional law between the contracting Parties, but as containing a recognition of universal preexisting rights, which could not justly be withheld by them from other States. The avowed object of the treaty was to fix and declare the law of nations upon the several points which had been so much contested ; the three northern Powers yielding the point of free ships, free goods, and that of search subject to a modification, by which the exercise of the right was confined to public ships of war ; and Great Britain yielding to all of them those relating to the colonial and coasting trade, to blockades, and to the mode of search ; and yielding to Russia, moreover, the limitation of contra- band to military stores. With respect to the question of convoys, a question not comprehended in the armed neutrality of 1780, a modifi- cation, satisfactory to the northern Powers, was yielded by Great Britain. That this is the true interpretation of the convention of 1801, was made evident in the course of the debate, which took place in the British House of Lords on the 12th of November, 1801, on the pro- duction of the papers relating to that convention. On this occasion Lord Grenville, who, together with his friend Mr. Pitt, had retired from the Ministry, leaving their successors to make peace with France and the northern Powers, declared his full con- viction that the convention essentially impaired the system of maritime law which had been upheld by the British Government. He stated that the inadmissible pretensions of the Baltic Powers had been coun- tenanced by the weak and temporizing policy, which Great Britain had pursued towards them, in the last years of the war of the Amer- ican revolution. At the commencement of the war of the French rev- olution, she had indeed obtained, by. negotiation with all the principal Governments of Europe, a raiunciation of claims, which had never been advanced but with purposes hostile to her. The principles in question were, indeed, within a few years after the armed neutrality of 1780, renounced by almost every State which had been a party iSchoell, Histoire dcs Traites de Paix, vol. vi, pp. 60-105 : Martens, Recueil de Traites, vol. 7, pp. 150-281, vol. 8, p. 91. OFFICIAL DOCUMENTS 13 to that league;^ and in some of the official communications with the Baltic Powers, during the war with France, pretensions were ad- vanced, both by the Empress Catharine and her successor, which went to the full extent of the ancient maritime law of Europe.^ The effects of this change of sentiment ensured to Great Britain, for several years, the undisturbed exercise of her maritime rights in those quarters where' they were the most important, both to her own inter- ests, and to those of the common cause in which she was engaged. But when caprice and groundless disgust were suffered to interrupt this well-considered system of policy at Petersburg, the former preten- sions of the neutral Powers were soon renewed with increased hos- tility; and it last became manifest, upon the signature of the con- vention of armed neutrality of 1800, that unless Great Britain could then resolve to meet the necessity of the case, by bringing these ques- tions to a distinct and final settlement, they would always be found to impede her operations, and embarrass her exertions in every future period of difficulty or danger. The principal objection stated by Lord Grenville to the convention of 1801 was, that in the form and wording of its different articles, the two hostile conventions of armed neutrality had been followed, with a scrupulous and servile exactness, wherever they could be made to apply. Great Britain had, therefore, negotiated and concluded that treaty on the basis of the very same inadmissible conventions, which she actually went to war for the purpose of annulling. And she then stood in the face of Europe, no longer as resisting, but as acceding to the treaties of armed neutrality, with modifications indeed, and changes in some important points, but sanctioning, by that concession, the general weight and authority of transactions which she had before considered as gross violations of public law, as manifest indications of hostile pui-pose, and as sufficient grounds to justify, on her part, the extremities of war itself. Whatever principles of maritime law might thereafter be contested, they must be discussed with some regard iBy Russia, in her war with Turkey in 1787; by Sweden, in her war with Russia in 1789; by Russia, Prussia, Austria. Spain, Portugal and America, in their treaties with Great Britain during the first war of the French revolu- tion; by Denmark and Sweden, in their instructions issued in 1793, when neu- tral; and- in their treaty with each other in 1794; and by Prussia again in her treaty with America of 1799. (Note by Lord Grenville.) 2See Russian declaration to Sweden, July 30, 1793. Instructions to Admiral Tchatchagoff, July 24, 1793. See also Russian treaty of commerce 1797 with Great Britain, Article 10. 14 THE ARMED NEUTRALITY OF 1780 AND 1800 to the treaties of armed neutrality. Whatever words of doubtful inter- pretation were transferred from those treaties into the convention (and many such were transferred) must, according to one of the best rules of legitimate construction, be explained by a reference to the original instrument, where they were first introduced into the code of public law. It was, therefore, under this impression that they rriust proceed to examine the convention of 1801, and to compare it with those claims, for which Great Britain determined, at the commencement of the year, that it was necessary, even under all the difficulties of that moment, to incur the additional dangers of a northern war. Those claims were included in five separate propositions or principles of maritime law, every one of which the neutral league of 1800, had bound the contracting parties in that engagement to resist by force : and every one of which their Lordships had agreed with the Ministry of that day, in considering as essentially necessary to be maintained for the preservation of the maritime strength of Great Britain, and, consequently for the means even of her domestic security. The propositions were as follows: 1. That it is not lawful to neutral nations to carry on, in time of war, for the advantage, or on the behalf of one of the belligerent Powers, those branches of its commerce, from which they are excluded in time of peace. 2. That every belligerent Power may capture the property of its enemies, wherever it shall be met with on the high seas, and may, for that purpose, detain and bring into port neutral vessels laden wholly or in part with any such property. 3. That under the description of contraband of war, which neutrals are prohibited from carrying to the belligerent Powers, the law of nations (if not restrained by special treaty), includes all naval as well as all military stores; and generally all articles serving principally, according to the circumstances of the war, to afiford to one belligerent Power the instruments and means of annoyance to be used against the other. 4. That it is lawful to naval Powers, when engaged in war, to block- ade the ports of their enemies by cruising squadrons, bona Me allotted to that service, and fairly competent to its execution. That such block- ade is valid and legitimate, although there be no design to attack or to reduce by force the port, fort, or arsenal to which it is applied. OFFICIAL DOCUMENTS 15 And that the f-act of the blockade, coupled with due notice thereof to the neutral Powers, shall afifect, not only vessels actually intercepted in the attempt to enter the blockaded port, but those ships also, which shall elsewhere be met with, and shall be found to have been destined to such port, under the circumstances of the fact and notice of its blockade. 5. That the right of visiting and examining neutral vessels is a necessary consequence of these principles ; and that by the law of nations (when unrestrained by treaty) this right is not in any manner affected by the presence of a neutral ship of war, having under its convoy merchant ship's, either of its own nation or of any other country. • The first of these principles established the rule under which the belligerent refuses to neutrals the liberty of carrying on, during war, those parts of his enemy's trade from which they are usually excluded in time of peace. This rule had, in the British practice, been prin- cipally applied to the coasting and colonial trade of France. From both these branches of her trade, France had, in every period of peace, excluded all vessels but her own, with occasional exceptions only, such as more strongly proved her general principle of exclusion. But in war she had always found it impossible to maintain these monopolies. Pressed, on the one hand, by the naval superiority of Great Britain, which had rendered the navigation of French ships unsafe, and unable, on the other hand, to forego the resources which depend en- tirely on these important branches of her commerce, France had fre- quently endeavored, under these special circumstances, to open both her colonial and her coasting trade to neutral vessels. The right to carry on unmolested both these branches of commerce was claimed by the northern Powers in the league of armed neutrality of 1780 and of 1800. The claim, which the confederates thus asserted, was, so far as related directly to the coasting trade, expressed in the 3d article of the convention of 1800 as follows: "That neutral ships may navi- gate freely from port to port, and on the coasts of the belligerent Powers." The convention of 1801 had adopted very nearly the same ejcpiressions. By the first section, of what there, also, stood as the third article, neutral ships are permitted "to navigate freely to the ports and upon the coasts erf the belligerent Powers." And in the next section of the same article, corresponding also (though with a variation respecting enemy's property) with a clause in the treaty of 16 THE ARMED NEUTRALITY OF 1780 AND 1800 armed neutrality of 1800, it was expressly declared, 'that "the effects embarked on board neutral ships shall be free, with the exception of contraband of war, and of enemy's property." A free navigation to the ports, and upon the coasts, of any country, must imply the liberty of navigating freely, both to and from all those ports, and upon every part of those coasts. If any limitation of this liberty had been in- tended, it would have been stated in the exceptions, specified in the convention, to the otherwise unrestrained freedom of navigation to the enemy's ports, which neutrals were thenceforward tO' enjoy. Among the exceptions thus specified, not even the most distant refer- ence is to be found to that principle respecting the coasting trade which Great Britain had asserted. The liberty of sailing freely tO' any hostile port was plainly conceded ; but it was not even intimated, much less declared, that this permissioin was not tO' extend to ships laden with commodities purchased at any other port of the same couotr}'. Nor would it be easy to explain in any other sense than that' of a deliberate and intentional concession of the coasting trade, the admis- sion of those words which guarantee to nieutrals the free navigation, not only to the ports, hut "upon the coasts of the Powers at war." It a direct trade only from the neutral country to the belligerent ports had been intended, the first words of the section had amply secured it. If it was meant to permit a partial and suiccesisive discharge of the different articles of the cargo, at different ports, this also was secured by the gaieral and unqualified permission to sail freely to those ports. The words "upon the coasts" were first introduced into the treaty of armed neutrality in 1780. They were there employed for the express purpose of asserting the right of neutrals to carry on the coasting trade of the belligerents. From that treaty they had since been care- fully transcribed, first into the hostile convention of 1800, and now again into the conciliatory arrangement of 1801, to which they were thenceforth to look for the rule of maritime law. But even supposing the sense of the convention of 1801 was am- biguous, as to the coasting trade, there could be no doubt that it had surrendered to neutrals the right to carry on the enemy's colonial trade. The only relaxation which had been allowed by Great Britain, during the war with France, of the principle asserted by her, was that contained in the order in council of January 8, 1794 the eft'ect of which was to permit neutral vessels to carry to the ports of the United States the produce of the French colonies. In other respects, the pre- OFFICIAL DOCUMENTS 17 vious order of the 6th November, 1793 still remained in full force, unless it were annulled by the convention of 1801. The second section of the third article of this treaty distinctly provided, that all "the effects embarked on board neutral ships shall be free, with the exception of contraband of war and enemy's property ; and it is agreed not to com- prise in the number of the latter, the merchandise of the produce, growth, or manufacture of countries at war, which should have been acquired by the subjects of the neutral Power, and should be trans- ported for their account; which merchandise can not be excepted, in any case, from the freedom granted to the flag of the said Power." It was impossible to apply these words to any other case than that of the trade in the produce of the French colonies, become the prop- erty of neutrals, which was declared to be free in neutral vessels, what- ever might be the destination, whether to a neutral country or even to France itself.^ As to the British claim, in respect to the liability to capture and confiscation of enemy's property, found on board of neutral vessels. Lord Grenville admitted that it was fully recognized by the second section of the third article of the convention, which implied a relin- quishment of the opposite principle of free ships, free goods on the part of the northern Powers. The stipulation in the third section of the same article, relating to contraband of war, must be considered in connection with the second separate article of the convention, by which the treaty of commerce of the 10/21 February, 1797, was "confirmed anew, and all its stipulations repeated to be maintained in their whole extent." The effect of this article was to reestablish the treaty of 1797, which had, by a temporary stipulation, admitted the subjects of the Russian Empire to carry, in their own ships, naval stores to the enemy's ports. The treaty itself would soon expire, but the privilege it granted to lit should be observed that the right to carry on the colonial trade granted by this article was subsequently limited by the explanatory declaration, which had already been signed at Moscow at the time when Lord Grenville was speaking, though unknown to him, by which it was agreed that "the freedom of cotnmerce and navigation, granted by the said article to the subjects of a neutral Power, does not authorize them to carry, in time of war, the produce or merchandise of the colonies of the belligerent Power, direct to the con- tinental possessions, nor vice versa, from the mother country to the enemy's colonies; but that the said subjects are, however, to enjoy the same advan- tages and facilities in this commerce as are enjoyed by the most favored nation, and especially by the United States of America." Martens, Recueil de Traites, vol. 7, p. 271. 18 THE ARMED NEUTRALITY OF 1780 AND 1800 Russia of carrying naval stores would not expire with it. The article which contained that stipulation had been separated from all commer- cial stipulations, and transferred from the temporary treaty of 1797 into the convention of 1801, which was expressly declared to be per- petual.^ The third and fourth sections of this article, which treat of contraband and of blockaded ports, did each of them expressly contain, not the concession of any special privilege to be thenceforth enjoyed by the contracting Parties only, but the recognition of an universal and preexisting right, which, as such, could not justly be refused to any other independent State. The third section, relating to contra- band of war, was, in all its parts strictly declaratory. It was intro- duced by a separate preamble, announcing that its object was to prevent "all ambiguity or misunderstanding as to what ought to be considered as contraband of war." Conformably with this intention, the con- tracting Parties declared, in the body of the clause, what were the only commodities which they acknowledge as such. And this declar- ation was followed by a special reserve, that "it shall not prejudice their particular treaties with other Powers." If the parties had intended to treat of this question only as it related to their own conduct towards each other, and to leave it, in that respect, on the same footing on which it stood before the formation of the hostile league of 1800, all mention of contraband in that part of the convention would evidently have been superfluous. Nothing more could, in that case, be necessary than to renew the former treaties which had specified the lists of contraband ; and as that renewal was expressly stipulated in another article of the convention, the third section must be considered as introduced for some distinct purpose. It must therefore unquestionably be understood in that larger sense announced in its preamble, and expressed in the words of the declara- tion which it contained. It must be taken as laying down 'a general rule for all future discussions with any Power whatever, on the subject of military or naval stores, and as establishing a principle of law which was to decide universally on a just interpretation of the technical term of contraband of war. The reservation, made in the conclusion of the section, of special treaties with other Powers, was manifestly in- 1" Article 8._ The principles and measures adopted by the present act shall be alike applicable to all the maritime wars in which one of the two Powers may be engaged whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve for a constant rule to the contracting Powers in matters of commerce and navigation." OFFICIAL DOCUMENTS 19 consistent with any more limited, construction. It was unnecessary to declare that a stipulation, extending only to the Baltic Powers, should not prejudice the subsisting treaties of Great Britain with other na- tions. But the reserve was not only prudent, but necessary, when she undertook to lay down a universal principle, applicable to all her transactions with every independent State. In recognizing a claim of preexisting right, and in establishing a new interpretation of the law of nations, it was unquestionably of extreme importance expressly to reserve the more favorable practice which her subsisting treaties had established with some other Powers. The interpretation given to the term contraband of war in the convention was drawn exclusively from the treaties of armed neu- trality. In the league of 1780, the Empress of Russia had thought proper to declare that her engagements with Great Britain on the subject of contraband should thenceforth be considered as the invari- able rule of natural and universal right. The convention of 1801 adopted the same rule, and adopted it on the same ground ; enumerat- ing all the commodities mentioned in the treaty of 1797 between Great Britain and Russia ; declaring, that conformably to that treaty, the two sovereigns acknowledge those commodities alone as contraband of war. Great Britain must, in all future discussions with other neutral Powers, abide the consequences of that new rule of public law which she had herself thought proper to proclaim. She had pub- licly deserted her former claim, had confessed that naval stores ought not to be considered as contraband of war, and that she herself no longer aclcnowledged them as such. She had expressed this avowal in the very words originally intended for the purpose of making it universal; and had inserted it in her treaties with those very Powers who had confederated for no other object than to enforce her obser- vance of it. The stipulation on the subject of blockaded ports was also tran- scribed, with the variation of a single word, from the corresponding articles of the two conventions of armed neutrality. Those articles had declared, in substance, that no port should be considered as block- aded unless where the Power attacking it should maintain a squadron constantly stationed before it, and sufficiently near to create an evident danger of entering. In the convention of 1801, instead of the words, "and sufficiently near," the contracting parties had substituted, "or suffi- ciently near." And he had not the smallest doubt that by this minute 20 THE ARMED NEUTRALITY OF 1780 AND 1800 change, trifling and unimportant as it was, they intended to establish, in their full extent, the principles which Great Britain had main- tained on this great question of maritime blockade, and which the article, in its original state, as it stood in the two neutral conventions was intended completely ,to subvert. But what he complained of, was the glaring impolicy of resting so important a principle on the minute and sicarcely perceptible variation of a single article. He stated, how- ever, two other objections to the article: 1. That when it spoke of the Power which attacks the port, it seems, in some degree, to countenance the unfounded assertion that a blockade by sea, like that by land, required an actual design of re- ducing or conquering the particular place to which it was applied. Whereas Great Britain maintained, in her naval wars with France, as Holland formerly maintained in her contest with Spain, that the blockade of one or more of the enemy's ports, or even of a consid- erable extent of his coasts, may lawfully be adopted for the special purpose of intercepting his supplies, in order, by this pressure, to reduce him to just and reasonable conditions of peace. 2. The second objection arose from the very nature of all naval operations, depending so much on the variations of weather, by which a squadron blockading a hostile port, and fully equal to the execution of that service, might, nevertheless, occasionally be unable to remain either stationary before the port, or even sufficiently near it to create at all times an evident danger of entering. And if, as the words of the article imported, the blockade was understood to continue so long only as that danger actually existed, and was on the other hand to be considered as being raised as often as the danger ceased, even if for the shortest interval, the utmost confusion must inevitably arise in all cases, but particularly in those of neutral ships met with at a dis- tance from the blockaded port, but destined to it. It might indeed be asserted, without the least exaggeration, that even giving the fullest weight to that minute verbal change, on which so much was made to depend, a strict adherence to the letter of that stipulation must utterly destroy the whole British system of blockade by cruising squadrons. Lord Grenville then proceeded to consider the stipulations of the convention as it respects the visiting and examining neutral vessels under convoy. The claim of the neutral league of 1800 confined this examination to a bare perusal of the papers of the neutral ships, which papers were, for that purpose, to be communicated to the belligerent OFFICIAL DOCUMENTS 21 by the neutral officer on board his own vessel. Exactly the same pro- ceeding had been stipulated in the convention of 1801, and it was added, in both treaties, that if the papers so communicated should be found to be regular, no further search should take place. An excep- tion, however, was subjoined in that of 1801, which constituted the only practical difference on the subject between the two conventions. It was not, as before, laid down absolutely, that no further search should, in any case, take place, but that none should take place "unless some valid motive of suspicion shall exist." Good faith forbade its being contended that the right, from which the belligerent had agreed to abstain, except when some valid ground of suspicion should exist, might still be indiscriminately exercised at his discretion. As the practice had before stood, the inquiry into the facts of the case pre- ceded all conclusions to be drawn from them. The suspicion arose from the search, and the detention of the ship was its just and natural effect. As the law would stand under the convention, suspicion, must precede inquiry, and very few cases were likely to occur, where any valid ground of suspicion respecting a neutral ship could bona fide exist before the search. It wfls then but tco manifest that, while they had, in words, established the right of visiting ships under neutral con- voy, thev had, in fact, so limited and circumscribed the practice, as utterly to renounce every beneficial purpose to which it could, by any possibility, be applied.^ In order to complete our view of the controversy growing out of the armed' neutrality, it is only necessary to add that both in the pre- liminary treafy of peace between France and Great Britain signed in 1801, and in the deiinitive treaty concluded at Amiens in the follow- ing year, a total silence was observed respecting the disputed points of maritime law. On the rupture which took place between Great Britain and Russia in consequence of the attack upon Copenhagen and capture of the Danish fleet, the Russian Government published on the 26th October, 1807, a declaration forever annulling the maritime con- vention of 1801, and proclaiming "anew the principles of the armed neutrality, that monument of the wisdo'm of the Empress Catharine and engaging never to derogate from this system. The British Government published, on the 18th December, an answer ^Speech delivered by Lord Grenville in the House of Lords, Nov. 13, 1801, Parliamentary History of England, vol. xxxvi, pp. 200-255. For the very lame and inconclusive replies made by other speakers, see ibid., pp. 256-263. 22 THE ARMED NEUTRALITY OF 1780 AND 1800 to this declaration proclaiming "anew the principles of maritime law, against which was directed the armed neutrality under the auspices of the Empress Catharine." It was stated that these principles had been recognized by all the ^ Powers of Europe who framed that league, and no one more strictly conformed to them than Russia herself under the reign of the Em- press Catharine. It was the right, as well as the duty of His Majesty to maintain these principles, which he was determined to do against every confederacy with the assistance of divine Providence. The subsequent treaties of peace and of commerce between the two Pow- ers are totally silent upon the disputed points.^ The treaties of peace signed at Paris in 1814-15, between France and the allied Powers, are equally silent upon the contested questions of maritime law. '^Martens, Manuel diplomatique sur les Droits des Neutres sur Mer, p. 69. The questions involved in the controversy, respecting the armed neutrality, became the subject of polemic discussion by various public jurists, both in belligerent and neutral countries. Among these works one of the most re- markable was the examination of the judgment of Sir W. Scott in the case of the Swedish convoy by Professor J. F. W. Schlegel published at Copen- hagen in 1800. It was replied to by Dr. Croke in his remarks upon Mr. Schlegel's work upon the visitation of rentral vessels under convoy, London, 1801. OFFICIAL DOCUMENTS 23 Declarjation of the Empress of Russia regarding the Principles of ' Armed Neutrality, addressed to the Courts of London, Ver- sailles and Madrid, February 28, 1780^ The Empress of all the Russias has so fully manifested her senti- ments of equity and moderation, and has given such evident proofs, during the course of the war that she supported against the Ottoman Porte, of the regard she has for the rights of neutrality and the lib- erty of universal commerce, as all Europe can witness. This conduct, as well as the principles of impartiality that she has displayed during the present war, justly inspires her with the fullest confidence, that her subjects would peaceably enjoy the fruits of their industry and the advantages belonging to a neutral nation. Experience has never- theless proved the contrary. Neither the above-mentioned considera- tions, nor the regard to the rights of nations, have prevented the sub- jects of Her Imperial Majest_v from being often molested in their navigation, and stopped in their operations, by those of the belligerent Powers. These hindrances to the liberty of trade in general, and to that of Russia in particular, are of a nature to excite the attention of all neutral nations. The Empress finds herself obliged therefore to free it by all the means compatible with her dignity and the well-being of her subjects; but, before she puts this into execution, and with a sincere intention to prevent any future infringements, she thought it but just to publish to all Europe the principles she means to follow, which are the most proper to prevent any misunderstanding, or any occurrences that may occasion it. Her Imperial Majesty does it with the more confidence, as she finds these principles coincident with the primitive right of nations which every people may reclaim, and which the belligerent Powers can not invalidate without violating the laws ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 158. 24 THE ARMED NEUTRALITY OF 1780 AND 1800 of neutrality, and without disavowing the maxims they have adopted in the dififerent treaties and pubHc engagements. ' They are reducible to the following points : (1) That all neutral ships may freely navigate from port to port, and on the coasts of nations at war. (2) That the effects belonging to the subjects of the said warring Powers shall be free in all neutral vessels, Except contraband mer- chandise, (3) That the Empress, as to the specification of the above-mentioned merchandise, holds to what is mentioned in the 10th and Hth articles of her treaty of commerce with Great Britain, extending her obliga- tions to all the Powers at war. (4) That, to determine what is meant by a blockaded port, this is only to be understood of one which is so well kept in by the ships of the Power that attacks it, and which keep their places, that it is dan- gerous to enter into it. (5) That these principles serve as a rule for proceedings and judg- ments upon the legality of prizes. Her Imperial Majesty, in making these points public, does not hesi- tate to declare, that to maintain them, and to protect the honor of her flag, the security of the trade and navigation of her subjects, she has prepared the greatest part of her maritime forces. This measure will not, however, influence the strict neutrality she does observe, and will observe so long as she i? not provoked and forced to break the bounds of moderation and perfect impartiality. It will be only in this extremity that her fleet have orders to go wherever honor, interest, and need may require. In giving this solemn assurance with the usual openness of her character, the Empress can not do other than promise herself that the belligerent Powers, convinced of the sentiments of justice and equity which animate her, will contribute towards the accomplishment of these salutary purposes, which manifestly tend to the good of all nations, and to the advantage even of those at war. In consequence of which. Her Imperial Majesty will furnish her commanding officers with instructions conformable to the above-mentioned principles, founded upon the primitive laws of people, and so often adopted in their conventions. OFFICIAL DOCUMENTS 25 RjUssian Memoradum presented to the States-General of the, Netherlands, April 3, 1780^ High and Mighty Lords : The underwritten Envoy Extraordinary from the Empress of all the Russias has the honor to communicate to you a copy of the declar- ation which the Empress his sovereign has made to the belligerent Powers. Your High Mightinesses may look upon this communication as a particular mark of the attention of the Empress for the republic, which is equally interested in the reasons which occasioned the declar- ation. He has further orders to declare to Your High Mightinesses, in the name of Her Imperial Majesty, that how desirous soever she may be on the one hand to maintain the strictest neutrality during the present war, yet Her Majesty is as determined to take the most effica- cious means to support the honor of the Russian flag, the security of the trade, and the navigation of her subjects, and not suffer either to be hurt by any of the belligerent Powers ; that, in order to prevent on this occasion any misunderstanding or false interpretation, she thought it necessary to specify in the declaration the limits of a free trade, and what is called contraband. That, if the definition of the former is founded upon the clearest notions of natural right, the latter is literally taken from the treaty of commerce between Russia and Great Britain, by which Her Imperial Majesty means incontestably to prove her good faith and impartiality towards each party ;• that she consequently apprehends that the other trading Powers will immediately come into her way of thinking relative to neutrality. From these considerations. Her Imperial Majesty has ordered the underwritten to invite Your High Mightinesses to make a common cause with her, as sucli an union may serve to protect the trade and navigation, and at the same time observe a strict neutrality, and to communicate to Your High Mightinesses the regulation she has in consequence taken. The same invitation has been made to the Courts of Copenhagen, Stockholm and Lisbon, in order that by the united endeavors of all the neutral maritime Powers, a natural system, founded on justice, might be established and legalized in favor of the trade of neutral nations, which by its real advantages might serve for a rule for future ages. The underwritten does not doubt but your High Mightinesses will, ^Annual Register, 1780, p. M6. 26 THE ARMED NEUTRALITY OF 1780 AND 1800 without delay, take the invitation of Her Imperial Majesty into con- sideration, and concur in immediately making a declaration to the •belligerent Powers, founded on the same principles as that of the Empress, explaining at the same time the nature of a free and con- traband trade, conformable to their respective treaties with the other nations. For the rest, the underwritten has the honor to assure your High Mightinesses, that if, to establish such a glorious and advantageous system upon the most solid basis, they wished to open a negotiation with the above-mentioned neutral Powers on this subject, the Empress, his sovereign, is ready to join you. Your Mightinesses will easily see the necessity of accelerating your resolutions upon objects of such importance and advantage for human- ity in general. The underwritten begs of you to give him a speedy answer. Demetri Prince Gallitzin Hague, Jpril ^, lySo. , Explanations demanded by the Court of Sweden relative to the Russian Project for an Armed Neutrality, April 5, 1780^ Article 1 How and in what manner a reciprocal protection and mutual assist- ance shall be given. Article 2 Whether each particular Power shall be obliged to protect the gen- eral commerce of the whole, or if in the meantime it may employ a part of its armament in the protection of its own particular com- merce. Article 3 If several of these combined squadrons should meet, or, for exam- ple, one or more of their vessels, what shall be the rule of their con- iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 170. See also Annual Register, 1780, p> 354. OFFICIAL DOCUMENTS 27 duct towards each other, and how far shall the neutral protection extend. Article 4 It seems essential to agree upon the manner in which representations shall be made to the Powers at war, if, notwithstanding our measures, their ships of war, or armed vessels, should continue to interrupt our commerce in any manner. Must these remonstrances be made in the general name of the united Powers, or shall each particular Power plead its own cause only? Article 5 Lastly, it appears essentially necessary to provide against this pos- sible event, where one of the united Powers, seeing itself driven to extremities against any of the Powers' actually at war, should claim the assistance of the allies m this convention to do her justice ; in what manner can this be best concerted? A circumstance which equally requires a stipulation, that the reprisals in that case shall not be at the will of such party injured, but that the common voice shall decide : otherwise an individual Power might at its pleasure draw the rest against their inclinations and interests into disagreeable extremi- ties, or break the whole league, and reduce matters into their original state, which would render the whole fruitless and of no effect. Extract from the Register of the Resolutions of the States-General of Holland and West Friesland, April 13, 1780=^ It has seemed fit and it 'la.^ been resolved that the affairs of the States-Genera! be so conducted that it shall be stated to the Prince de Gallizin, Envoy Extraordinary of Her Imperial Majesty of all the Russias, in r^ly to his memorial of the .3rd of this month, that Their High Mightinesses have received with great satisfaction the communi- cation which it has pleased Her Imperial Majesty to send them con- iTransIation. French text at Martens, Recueil de Traites, vol. 3, p. 166. 28 THE ARMED NEUTRALITY OF 1780 AND 1800 cerning her views and the declaration presented to the Courtis of Ver- sailles, of Madrid, and of London. That Their High Mightinesses regard this communication as a striking mark of Her Imperial Majesty's affection for the Republic, and that they consider it an honor and a duty to make a frank and cordial reply. That Their High Mightinesses can not help perceiving and admir- ing, as a fresh proof of the well-known high-mindedness and justice of Her Imperial Majesty, and the object she is endeavoring tO' accom- plish and the means she has adopted to preserve during the present war the strictest neutrality toward the belligerent Powers, not only to ensure the honor of the Russian flag and to maintain the commerce and navigation of her subjects by not permitting any of the Powers at war to do it harm, but also' in the interest of the peace and liberty of Europe, and to establish on the solid foundtaions of justice and the law of nations an equitable system of ijavigation and commerce for neutral Powers. That Their High Mightinesses desire, no less than Her Imperial Majesty, to observe the strictest neutrality during the present war, but that they have themselves especially experienced the prejudice which the commerce and navigation of neutral Powers have suffered as the result of the vague and uncertain principles which the belligerent Powers have adopted concerning the rights of neutrals, according to the dictates of their individual interests or the necessities of the war operations; that they, therefore, like Her Imperial Majesty, regard it as absolutely necessary for the neutral Powers to cooperate in deter- mining theiir aforesaid rights and in establishing them on a firm basis. That, with respect to the determination of these rights. Their High Mightinesses, by conforming to the five points set forth in Her Impe- lial Majesty's declaration to the Courts of Versailles, Madrid and London, which was communicated to them, in her behalf, on the 3rd of this month, by Prince de Gallizin, stand ready to follow the exam- ple of Her Imperial Majesty, and to declare to the belligerent Powers, as she has done, that Their High Mightinesses are entirely disposed to enter into negotiations with Her Imperial Majesty and with the other neutral Powers to consider what m.easures should be taken in order that freedom of commerce and navigation may be most effectually maintained, with strict observance of neutrality toward the belligerent Powers. OFFICIAL DOCUMENTS 29 That an extract from the resolution which shall be adopted on this subject shall be handed by their agent, van der Burch de Spiering- shoek, to Prince de Gallizin, Envoy Extraordinan,' of Her Majesty the Empress of all the Russias, with the request that it be brought to the knowledge of his sovereign, and that he support it in the most favorable manner with his good offices. That an extract shall also be sent to Mr. de Swaert, resident of Their High Mightinesses at the Court of Russia, for his infomiation and instruction, with orders to cooperate, so far as it lies in his power, toward the success of the good intentions of Their High Mightinesses. That the said extract shall also be addressed to the Ministers of the Republic at the Courts of Copenhagen, Stockholm, and Lisbon, for their guidance, with orders to join with the Minister of Russia at the Courts where they reside and to support their efforts to the best of their abilitv. Declaration of the Court of England to the States-General of the Netherlands, April 17, 1780^ Since Great Britain was drawn into an involuntary war with France and Spain, the King's Ambassador to the States-General of the United Provinces has presented a number of memoranda demanding the assist- ance stipulated by treaties. Although these representations were reiter- ated in the most urgent manner in the memorandum of March 21, they have met with no response, and their High Mightinesses have displayed no intention to subscribe to them. By thus deferring the fulfilment of their most positive engagements, they are deserting the alliance which has existed so long between the Crown of Great Britain and the Republic, and are placing themselves on the level of neutral Powers that are not bound to this country by any treaty. The principles of wisdom and equity, consequently, re- quire the King to consider the States no longer in any other relation than the distant one in which they have placed themselves, and His Majesty, having taken this subject under consideration, has, with the ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 173. 30. THE ARMED NEUTRALITY OF 1780 AND 1800 advice of his Council, deemed it proper to order the immediate carry- ing out of the measures which were formally set forth in the memo- randum oif March 21, last, and which had previously been hinted to Count de Welderen, Envoy Extraordinary and Plenipotentiary of the Republic, in a verbal declaration by Lord Stormont, one of the Secre- taries of State, nearly two months before the delivery of the afore- said memorandum. For these reasons, the King, with the advice of his Council, declares that the subjects of the United Provinces shall henceforth be consid- ered on the footing of those of neutral Powers, which have no treaty privileges. By these presents. His Majesty suspends provisionally and until further orders all stipulations specifically intended to favor in time of war the freedom of navigation and commerce of the subjects of the States-General, as set forth in the various treaties in force between His Majesty and the Republic, and particularly in the marine treaties concluded between Great Britain and the United Provinces at London on December 1, 1674. His Majesty, animated by a feeling of humanity, desiring neverthe- less to spare the interests of individuals, and not seeking to cause them loss by an act taking them unawares, declares, moreover, with the advice of his Council, that the present ordinance shall not go into effect until the following dates, to wit : In the north seas and chaftnel twelve days from this date. . From the channel, the British seas and the north seas to the Canary Islands inclusive, both in the ocean and • in the Mediterranean, the time will be six weeks from the date of these presents. The period will be three months from the Canary Islands to the equinoctial line or equator. Finally, it will be six months, for the waters situated beyond the equator, and in general in all other quarters of the world without exception, or without a more specific determination of time or place. Rescript added to the Foregoing Order Inasmuch as, in accordance with our order in Council, dated April 17, 1780, the various treaties granting special privileges to subjects of the States-General of the United Provinces in the matter of their commerce and navigation in time of war, are suspended, and as the subjects of the States-General are to be considered on the same footing as those of other neutral States having no treaty privileges, until it OFFICIAL DOCUMENTS , 31 shall please us formally to signify the contrary, the commanders of our war-ships and those of all ships and vessels which have letters of marque and of reprisal are authorized by these presents to seize and detain all ships and vessels belonging to subjects of the States- General whenever they are found to have on board any effects belong- ing to the enemies of His Majesty or effects that are considered by the general law of nations as contraband of war. Reply of the King of Spain to the Declaration of the Empress of Russia, April 18, 1780^ The King, being informed of the Empress's sentiments with respect to the belligerent and neutral Powers, by a memorial remitted to the Compte de Florida Blanca, on the 15th instant by Mr. Etienne de Zinowief , Minister to Her Imperial Majestv : the King considers this as the effect of a just confidence which His Majesty has on his part merited; and it is yet more agreeable that the principles adopted by this sovereign should be the same as have always gUided the King, and which His Majesty has for a long time, but without success, en- deavored to cause England to observe, while Spain remained neuter. These principles are founded in justice, equity, and moderation; and these same principles Russia and all the other Powers have experi- enced in the resolutions formed by His Majesty; and it has been en- tirely owing to the conduct of the English navy, both in the last and the present war (a conduct wholly subversive of the received rules among neutral Powers) that His Majesty has been obliged to follow their example; since the English paying no respect to a neutral flag, if the same be laden with effects belonging to the enemy, even if the articles should not be contraband, and that flag not using any means of de- fending itself, there could not be any just cause why Spain should not make reprisals, to indemnify herself for the great disadvantages she must otherwise labor under. The neutral Powers have also laid themselves open to the inconveniences they have suffered, by fur- ^ Annual Register, 1780, p. 350. French text at Martens, Recueil de Traites, vol. 3, p. 164. 32 THE ARMED NEUTRALITY OF 1780 AND 1800 * nishing themselves with double papers, and other artifices, to prevent the capture of their vessels; from which have followed captures and detentions innumerable, and other disagreeable consequences, though in reality not so prejudicial as pretended; on the contrary, some of these detentions have turned to the advantage of the proprietors, as the goods, being sold in the port where they were condemned, have frequently gone off at a higher price than they would have done at the place of their destination. The King, nevertheless, not contented with these proofs of his justi- fication, which have been manifest to all Europe, will this day have the glory of being the first to give the example of respecting the neu- tral flag of all the Courts, that have consented, or shall consent, to defend it, till Ilis Majesty finds what part the English navy takes, and whether they will, together with their privateers, keep within proper bounds. And to show to all the neutral Powers how much Spain is desirous of observing the same rules in time of war as she was di- rected by whilst neuter. His Majesty conforms to the other points contained in the declaration of Russia. Xo be understood, neverthe- less, that, with regard to the blockade of Gibraltar, the danger of en- tering subsists, as determined by the fourth article of the said declara- tion. These dangers may, however, be avoided by the neutral Powers, if they conform to those rules of precaution established by Hif Majesty's declaration of the 13th of last March, which has been com- 'municated to the Court of Petersburg by his Minister. Florida Blanca At Aranjuez, iS April, 1780. Reply of the Court of Great Britain to the Declaration of the Em- press of Russia, April 23, 1780^^ During tlie course of the war, wherein Plis Britannic Majesty finds himself engaged through the unprovoked aggression of France and Spain, he hath constantly manifested his sentiments of justice, equity. '^Annual Register, 1780, p. 349. French text at Martens, Recueil de Traites, vol. 3, p. 160. OFFICIAL DOCUMENTS 33 and moderation, in every part of his conduct. His Majesty hath acted, towards friendly and neutral Powers according to their own procedure respecting Great Britain, and conformable to the clearest principles, generally acknowledged as the law of nations, being the only law be- tween Powers where no treaties subsist, and agreeable to the tenor of his different engagements with other Powers; those engagements have altered this primitive law, by mutual stipulations, proportioned to the will and convenience of the contracting Parties. Strongly attached to Her Majesty of all the Russias, by the ties of reciprocal friendship, and common interest, the king, from the com- mencement of those troubles, gave the most precise orders respecting the flag of Her Imperial Majesty, and the commerce of her subjects, agreeable to the law of nations, and the tenor of the engagements stipulated by his treaty of commerce with her, and to which he shall adhere with the most scrupulous exactness. The orders to this intent have been renewed, and the utmost care will be taken for their strictest execution. It may be presumed, not the least irregularity will happen; but in case any infringements, contrary to these repeated orders, take place, the courts of admiralty, which in this, like all other countries, are es- tablished to take cognizance of such matters, and in all cases do judge solely by the law of nations, and by the specific stipulations of diflfer- ent treaties, will redress every hardship in so equitable a manner, that Her Imperial Majesty shall be perfectly 'satisfied, and acknowledge a like spirit of justice which she herself possesses. Extract from the Register of Resolutions of the States-General of the Netherlands, April 24, 1780, replying to the Russian Memorandum^ Having deliberated by supposition on the memorandum which the Prince Gajllitzin, Envoy Extraordinary of Her Majesty the Em- press of all the Russias, presented to the Assembly on the 3d instant, accompanied by a declaration made by Her said Imperial Majesty ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 168. 34 THE ARMED NEUTRALITY OF 1780 AND 1800 to the Courts of England, France, and Spain, with regard to the freedom of commerce and navigation of her subjects, in which memo- randum this JMinister makes known to Their High Mightinesses the disposition of his sovereign to protect, in concert with neutral Powers, the commerce and navigation of their respective subjects, as more fully set forth in the above-mentioned documents of the 3d; it has been deemed well and it has been decided to reply to the Prince Gallitzin with regard to his said memorandum that Their High Mightinesses have received with great satisfaction the communication respecting her views which Her Imperial Majesty has been pleased tO' have presented to them, and the declaration that she has had submitted to the Courts of London, Versailles, and Madrid; that Their High Mightinesses look upon iJfiis communication as a striking proof of the fact that Her Imperial Majesty is well disposed toward the Republic and that they feel it to be an honor and a duty to reply cordially and sincerely ; that Their High Mightinesses commend and consider as a further effect of the recognized magnanimity and justice of Her Imperial Majesty, as well as the goal which she has set before herself, that the means which she has conceived to maintain during the present war the most scrupu- lous neutrality with the belligerent Powers, and to assure not only the honor of the flag of Russia and the freedom of commerce and of navigation of her subjects, and not to j>ermit any of the Powers that are now, at war to inflict the slightest injury upon them, but also to protect the liberties and tranquillity of Europe, and to fix and establish upon the most solid foundations of equity and the law of nations, and of treaties still in force, an equitable system for the navigation and commerce of neutra,l Powers. That Their High Mightinesses, like Her Imperial Majesty, desiring to observe a strict neutrality during the present war, have experienced only too well the injuries suffered by the navigation and commerce of neutral Powers through the vague and arbitrary conceptions held by the belligerent Powers on the right of neutrals, which are influenced by their individual interests and their war operations, and it is for this reason that Their High Mightinesses, like Her Imperial Majesty, deem it absolutely necessary that this right be established upon solid foundations and maintained in concert by the maritime neutral Powers; that with respect to the determination of this right Their High Mightinesses, conforming entirely to the five points contained in the declaration made by Her Imperial Majesty to the Courts of OFFICIAL DOCUMENTS 35 Versailles, Madrid, and London, and communicated in her name to Their High Mightinesses on April 3 by the Prince Gallitzin, are, following the example of Her Imperial Majesty, ready to make a similar declaration to the belligerent Powers. Their High Mighti- nesses being thus disposed to enter into a conference with this Princess and the other neutral maritime Powers respecting the measures by means of which, by the observance of strict neutrality between the Powers at war, freedom of navigation and, commerce may be main- tained with their united forces in the most effectual manner, both now and hereafter. An extract of the present resolution of Their High Mightinesses shall be transmitted by their agent van der Eurch de Spieringshoeck to the Prince Gallitzin, Envoy Extraordinary of Her Majesty the Empress of all the Russias, who shall be requested to communicate it to Her Imperial Majesty and to present to her this reply under the most favorable aspect, accompanying it with his good offices. Reply of the King of France to the Declaration of the Empress of Russia, April 25, 1780^ The war in which the King is engaged having no other object than the attachment of His Majesty to the freedom of the seas, he could not but with the truest satisfaction see tihe Empress of Russia adopt the same principle and resolve to maintain it. That which Her Im- perial Majesty claims fro^m the belligerent Powers is no other than the rules already prescribed to the French marine, the execution of which is maintained with an exactitude known and applauded by all Europe. The liberty of neutral vessels, restrained only in a few cases, is the direct consequence of neutral right, the safeguard of all nations, and the relief even of those 'at war. The King has been desirous, not only to procure a freedom of navigation to the subjects of the Empress of Russia, but to those of all the States who hold their neu- trality, and that upon the same conditions as are announced in the treaty to which His Majesty this day answers. ^Annual Register, 1780, p. .349 ; Martens, Recueil 'de Traites, vol. 3, p. 162. 36 THE ARMED NEUTRA,LITY OF 1780 AND 1800 His Majesty thought he had taken a great step for the general good, and prepared a glorious epocha for his reign, by fixing by his exam- ple, the rights which every belligerent Power may, and ought to ac- knowledge to be due to neutral vessels. His hopes have not been deceived, as the Empress, in avowing the strictest neutrality, has de- clared in favor of a system which the King is supporting at the price of his people's blood, and that Her Majesty adopts the same rights as he would wish to make the basis of the maritime code. If fresh. orders were necessary to prevent the vessels of Her Im- perial Majesty from being disturbed in their navigation by the sub- jects of the King, His Majesty would immediately give them; but the Empress will no doubt be satisfied with the dispositions made by His Alajesty in the regulations he has published. They do not hold by circumstances only, but they are founded on the right of nations, and quite suitable to a prince who finds the happiness of his own kingdom in that of the general prosperity. The King wishes Her Imperial Majesty would add to the means she has fixed to determine what merchandises are reckoned contraband in time of war, precise rules in the form of the sea papers with which the Russian ships will be furnished. With this precaution, His Majesty is assured nothing will happen to make him regret the having put the Russian navigators on as ad- vantageous a footing as can be in time of war. Happy circumstances have more than once occurred to prove to the Courts how important it is for them to explain themselves freely relative to their respective interests. His Majesty is very happy to have explained his way of thinking to Her Imperial Majesty upon so interesting a point for Russia, and the trading Powers of Europe. He the more sincerely applauds the principles and views of the Empress, as His Majesty partakes of the same sentiments which have brought Her Majesty to adopt those measures, wihich must be to the advantage of her own subjects, and all other nations. Versailles, April p;j, 1780. OFFICIAL DOCUMENTS 37 Reply of the Court of Russia to the Explanations demanded by Sweden relative to the Project for an Armed Neutrality, April 29, 1780^ Article 1 As to the manner in which protection and mutual assistance shall be granted, it must be settled by a formal convention, to which all the neutral Powers will be invited, the principal end of which is, to ensure a free navigation to the merchant ships of all nations. Whenever such vessel shall have proved from its papers, that it carries no contraband goods, tl^e protection of a squadron, or vessels of war, shall be granted her, under whose care she shall put herself, and which shall prevent her being interrupted. From hence it follows : Article 2 That each Power must concur in the general security of commerce. In the meantime, the better to accomplish this object, it will be neces- sary to settle, by means of a separate article, the places and distances which may be judged proper for the station of each Power. From, that method will arise this advantage, that all the squadrons of the allies will form a kind of chain, and be able to assist each other; the particular arrangement to be confined only to the knowledge of the allies, though the convention in all other points, will be communicated to the Powers at war, accompanied with all the protestations of a strict neutrality. Article 3 It is undoubtedly the principle of a perfect equality, which must regulate this point. We shall follow the common mode with regard to safety. In case the squadrons should meet and engage, the com- manders will conform to the usages of the sea service, because, as is observed above, the reciprocal protection, under these conditions, should be unlimited. Article 4 It seems expedient that the representations mentioned in this article be made by the party aggrieved ; and that the Ministers of the other iTranslation. French text at Martens, Recucil de Traites, vol. 3, p. 171. See ilso Annual Register, 1780, p. 355. 38 THE ARMED NEUTRALITY OF 1780 AND 1800 confederate Powers support those remonstrances in the most forcible and efficacious manner. Article 5 We feel all the importance of this consideration; and, to render it clear, it is necessary to distinguish the case. If any one of the alHed Powers should sufifer itself to be drawn in by motives contrary to the established principles of a neutrality and perfect impartiality, should injure its laws, or extend their bounds, it can not certainly be expected that the others should espouse the quarrel; on the contrary, such a conduct would be deemed an aban- doning the ties which unite them. But if the insult offered to one of the allies should be hostile to the principles adopted and announced in the face of all Europe, or should be marked with the character of hatred and animosity, inspired by resentment, these common measures of the confederacy, which have no other tendency than to make, in a precise and irrevocable manner, laws for the liberty of commerce, and the rights of every neutral nation, then it shall be held indispen- sable for the united Powers to make a common cause of it (at sea only) without its being a ground-work for other operations, as these connections are purely maritime, having no other object than naval commerce and navigation. From all that is said above, it evidently results, that the common will of" all, founded upon the principles admitted and adopted by the contracting parties, must alone decide, and that it will always be the fixed basis of the conduct and operations of this union. Finally, we shall observe, that these conventions suppose no other naval arma- ment than what shall be conformable to circumstances, according as those shall render them necessary, or as may be agreed. It is prob- able that this agreement, once ratified and established, will be of the greatest consequence; and that the belligerent Powers will find in it sufficient motives to persuade them to respect the neutral flag, and pre- vent their provoking the resenttiient of a respectable communion, founded under the auspices of the most evident justice, and the sole idea of which is received with the universal applause of all impartial Europe. OFFICIAL DOCUMENTS 39 Declaration of His Danish Majesty regarding the Neutrality of the Baltic Sea, communicated to the Courts of the Belligerent Powers, May 8, 1780^ The States of the King of Denmark and Norway are situated in such a way that the commerce of his subjects with the Provinces be- longing to his Crown would be disturbed, unless His Majesty took all measures capable of guaranteeing the Baltic and its coasts from hos- tilities and acts of violence of all kinds, and of protecting it from raids by privateers and armed vessels. In order, therefore, to keep open, free and tranquil communication between his Provinces, the King has resolved that the Baltic Sea being a closed sea, incontestably so by reason of its geographical situation, where all nations should and may navigate in peace and enjoy all the advantages of perfect tranquillity. His Majesty could not admit thereto armed vessels of the Powers at war for the purpose of committing acts of hostility against any one whatsoever. The other two Courts of the north adopt and announce the same system, which is the more just and natural because all the Powers whose States surround the Baltic enjoy the most profound peace and regard it as one of the greatest blessings that sovereigns can secure to their subjects. Russian Ordinance concerning Navigation under the Merchant Flag of Russia, May 19, 1780= Article 1 Merchant ships may not take part in the war, either directly or indirectly, or under any pretext whatsoever ; neither may they give aid 10 any of the belligerent Powers by supplying it with contraband goods under the flag of Russia. Contraband goods comprise spe- cifically cannons, mortars, muskets, pistols, bombs, grenades, bullets ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 175. ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 271. 40 THE ARMED NEUTRALITY OF 1780 AND 1800 of balls suitable for shooting, guns, gun-flints, fuses, powder, salt- • peter, sulphur, breastplates, pikes, swords, scabbards, cartridge-boxes, saddles, and bridles. Merchant ships must also take great care not to have on board a greater quantity of such munitions of war than it needs for its own use, that is to say, a quantity sufficient to supply each sailor or passenger. Article 2 All other goods, to whomsoever they may belong, and even if they belong to subjects of one of the belligerent Powers, may be freely trarisported on Russian vessels, and shall enjoy, together with the goods of our subjects, the protection of the Russian flag, except the goods mentioned in Article 1 under the head of contraband, which are declared to be such in Article 11 of our treaty of commerce with England. In consideration of this security of goods permitted on board neutral vessels, our subjects must take care not to ship effects belonging to them on vessels of the nations at war, in order to avoid any un- pleasantness or untoward incident. Article 3 Every vessel sailing from the port of this city or from any other port of our Empire must be supplied with sufficient proofs that it be- longs to Russian subjects; that is to say, the customary ship's register and a customs certificate setting forth : (1) The kind and quantity of the goods on board. (2) For whose account they have been purchased and to whom they are shipped. (3) To what port and to whom the vessel and its cargo are con- signed. For greater security the certificates issued by the custom house shall be vised by the admiralty, or in its absence by the magistrate of the place. Article 4 These prerogatives shall be enjoyed not only by our born subjects but also by foreigners, who are domiciled under our rule and pay public taxes like our own subjects; that is to say, as long as they dwell in our country, since in any other case they would not be per- mitted to use the merchant flag of Russia. OFFICIAL DOCUMENTS 41 Article 5 Each individual Russian vessel, even though a single owner sends two or three vessels at the same time to the same place, must be pro- vided with the documents mentioned in Article 3, which may prove their ownership in case the vessels should become separated during the voyage or in case they should be forced to follow different courses. Article 6 It is forbidden for any Russian vessel to have false or equivocal bills of lading, charter parties, or other ship's papers, still more false declarations, inasmuch as these last always expose them to inevitable danger. Therefore special attention should be given to see that the documents are in good order and state clearly, as specified above, the true destination of the vessel and the character of its cargo. It is also necessary that the contract between the owner of the goods and the master of the vessel or the agreement known as the charter party be always on board. But, as it quite often happens that the owner of the goods, in shipping them, either on his own vessel or on some other neutral vessel chartered by him, decides in advance, solely on speculation, to sell them in a certain port, and, in case the price in that port is too low, in some more distant port, he must not, in such a case, fail to specify and determine the two ports in the order of the course and of their situation, in one and the same bill of lading, and not in two. This same precaution must be observed with regard to charter parties, in arder that there may be no differences between them and the bills of lading. And, in case any of our subjects, in contempt of these provisions, should stoop to artifice and duplicity, they may be assured that they shall never enjoy our protection, which shall be given only to lawful and innocent commerce, and under no circumstances to illicit and fraudulent trade. Article 7 Every Russian vessel which, after having unloaded its cargo in some foreign port, purposes to return to its country or to proceed further to some other foreign point, must provide itself in this port, and in any other where it may stop to trade, with the documents required by the practice of the country, in order that it may be ascertained at any time to what nation the vessel belongs, from what port it comes, for what port it is bound, and with what new goods it has been loaded. 42 ■ THE ARMED NEUTRALITY OF 1780 AND 1800 Article 8 Inasmuch as the aforesaid documents are absolutely necessary to prove neutral ownership of goods on board the ship, particular care must be exercised not to throw them overboard, or any other writings or papers without exception, or on any occasion whatever, particularly on encountering another vessel, since by such a proceeding the vessel may lay itself open to well founded suspicion and to disagreeable consequences. Article 9 Care should be taken that there be not on board a Russian vessel a merchant, a commercial employee, or other officer, or more than one third of the sailors, who are subjects of one of the belligerent Powers, since otherwise such a vessel might meet with many unpleasant inci- dents. Vessels purchased in time of war from subjects of belligerent Powers would be exposed to similar complications. Therefore, now and as long as the present war lasts, they may not be purchased for any other purpose than for navigation in the Baltic or in the Black Sea. Article 10 It is forbidden, in general, to carry any goods from any point what- ever to places that are now under blockade or siege, by land or by sea ; and if any of our merchants should risk such unlawful commerce, they shall not, in spite of their loss, have the slightest right to seek our protection. Article 11 All our subjects, who happen to be in foreign lands for commercial purposes, must conform strictly to the local mercantile laws in force, as well as to the ordinances of the place where they reside or to which they send their vessels. And in order that these laws and ordi- nances may be known to them so far as possible, the Department of Foreign Affairs shall communicate to our Chamber of Commerce all papers relating thereto, so that all merchants may be informed thereof by means of the gazettes. Article 12 • Our purpose to protect and to defend in the most effectual manner the commerce and navigation of our faithful subjects in nowise con- templates that our course shall result in injury to any of the belligerent OFFICIAL DOCUMENTS 43 Powers, or that individual merchants take advantage of it for the purpose of making unlawful gains. Therefore we expressly forbid the merchants of our empire to permit foreigners to sail ships or to carry on commerce under their name. In case of contravention of our will in this respect, the guilty party shall forfeit his right to engage in mari- time commerce and to enjoy our iniperial protection therein. If our subjects, who are engaged in maritime commerce, strictly comply with the terms of this ordinance, they can count, in return, on our full and unlimited protection in their business in a foreign country, as Avell as on the attentive and zealous intercession of the Minister, agents, or consuls, who reside there in our behalf. To this end our Department of Foreign Affairs will provide them in due time with proper instructions. On the other hand, those of our subjects who shall not observe these rules can not have the slightest claim on our protection in the misfortunes and losses which may result from wilfully neglecting to use the necessary circumspection enjoined upon them. The Chamber of Commerce, in notifying our present ordinance to Russian merchants engaged in commerce in the ports, shall not fail at the same time to supply the custom houses with the necessary instruc- tions relating thereto, nor to inform the heads of the governments where there are ports of our will, in order that it may be uniformly observed in all the tribunals, in so far as they are concerned therewith. Given at Czarsko-Zelo, May 8/19, 1780. (Signed) Catherine Reply of the Court of France to the Danish Declaration regarding the Neutrality of the Baltic Sea, May 25, 1780^ Far ^rom wishing to extend the theater of the wai", the King has constantly manifested his desire to restrict it. The solicitude of His Majesty to fix precisely the portions of neutral coasts where his sub- jects may not attack the enemy has already proved how greatly he re- spected the sovereignty of all the Powers that border on the Baltic Sea; since they have declared themselves neutral. His Majesty has ^Translation. French text at Martens, vol. 3, 176. 44 THE ARMED NEUTRALITY OF 1780 AND 1800 regarded that sea as closed by order of its sovereigns. He shall con- tinue to follow the same course, and since it is apparently the wish of His Danish Majesty that orders be given that no French vessel shall commit acts of hostility beyond the sound, the Envoy of Denmark can assure His Majesty that the King will gladly comply with his desire. His Majesty has nothing more at heart than to do what is advan- tageous and agreeable to neutral Powers, those Powers especially that show themselves to be the protectors of the freedom of the seas, and in particular His Danish Majesty, whose confidence and friendship he earnestly desires to keep. (Signed) Vergennes Declaration of His Danish Majesty to the Courts of London, Ver- sailles and Madrid, July 8, 1780^ n the most exact and perfect neutrality, with the most regular navigation, and the most inviolable respect to treaties, could have kept free the commerce of the subjects of the King of Denmark and Nor- way from the inroads of the Powers with whom he is at peace, free and independent, it would not be necessary to take measures to en- sure to his subjects that liberty to which they have the most incon- trovertible right. The King of Denmark has always founded his glory and his grandeur upon the esteem and confidence of other people. It has been his rule, from the beginning of his reign, to testify to all the Powers, his friends, a conduct the most capable of corivincing them of his pacific intentions, and of his desire tO' contribute to the general happiness of Europe. His proceedings have always been con- formable to these principles, against which nothing can be alleged; he has not, till now, addressed himself, but to the Powers at war, to obtain a redress of his griefs ; and he has' never wanted moderation in his demands, nor acknowledgments when they have received the success they desen^ed: but the neutral navigation has been too often ^Translation. For the French text, see Martens, Recueil de Traites, vol. 3, p. 178. See also, Annual Register, 1780, p. 352. OFFICIAL DOCUMENTS 45 molested, and the most innocent commerce of his subjects too fre- quently troubled; so that the King finds himself obliged to take proper measures to assure to himself and his allies the safety of com- merce and navigation, and the maintenance of the inseparable rights of liberty and independence. If the duties of neutrality are sacred, the law of nations has also its rights avowed by all impartial Powers, established by custom, and founded upon equity and reason. A nation independent and neuter, does not lose by the war of others the rights which she had befqre the war, because peace exists between her and all the belligerent Powers. Without receiving or being obhged to follow the laws of either of them, she is allowed to follow, in all places (contraband excepted), the traffic which she would have a right to do, if peace existed with all Europe, as it exists with her. The King- pretends to nothing beyond what the neutrality allows him. This is his rule, and that of his people; and the King can not accord to the principle, that a Power at war has a right to interrupt the commerce of his subjects. He thinks it due to himself and his subjects, faithful observers of these rules, and to the Powers at war themselves, to declare to them the following principles, which he has always held, and which he will always avow and maintain, in concert with the Empress of all the Russias, whose sentiments he finds entirely con- formable with his own. » (1) That neutral vessels have a right to navigate freely from port to port, even on the coasts of the Powers at war. (2) That the effects of the subjects of the Powers at war shall be free in neutral vessels, except such as are deemed contraband. (3) That nothing is to be understood under the denominations of contraband, that is not expressly mentioned as such in the third article of his treaty of commerce with Great Britain, in the year 1670, and the 26th and 27th articles of his treaty of commerce with France, in the year 1742 ; and the King will equally maintain these rules with, those Powers with whom he has no treaty. (4) That he will look upon a blockaded port as one into which no vessel can enter without evident danger, on account of vessels of war stationed there, which form an effectual blockade. (5) That these principles serve for rules in procedure, and that Justice shall be expeditiously rendered, after the rules of the sea, con- formablv to treaty and usage received. (6) His majesty does not hesitate to declare, that he will maintain 46 THE ARMED NEUTRALITY OF 1780 AND 1800 these principles with the honor of his flag, and the liberty and inde- pendence of the commerce jind navigation of his subjects; and that it is for this purpose he has armed a part of his navy, although he is desirous to preserve, with all the Powers at war, not only a good un- derstanding, but all the friendship which the neutrality can admit of. The King will never recede from these principles, unless he is forced to it : he knows the duties and the obligations ; he respects them as he does his treaties and desires no other than to maintain them. His Majesty is persuaded, that the belligerent Powers will acknowledge the justice of his motives; that they will be as averse as himself to doing any thing that may oppress the liberties of mankind, and that they will give their orders to their admiralty and to their officers, con- formably to the principles above recited, which tend to the general happiness and interest of all Europe. Copenhagen^ July S, ijSo. Bernstorff Convention for an Armed Neutrality between Russia and Denmark and Norway, July 9, 1780^ Whereas the coninlerce and navigation of neuter P'owers is greatly injured by the present war at sea which has broken out between Great Britain, on the one part, and France and Spain, on the other part. Her Majesty the Empress of Russia, and His Majesty the King of Den- mark and Norway, in consequence of their assiduous attention to sup- port their own dignity, and to unite their constant care for the safety and welfare of their respective subjects; as well as from the respect which they have at all times manifested for the rights of nations in general, have found it necessary, in the present circumstances, to de- termine their conduct according tO' these sentiments. Her Majesty the Empress of Russia, in her declaration to^ the bel- ligerent Powers, dated February 28, 1780, has plainly stated, in the face of all Europe, the fundamental principles which derive from JJenkinson's Treaties, vol. iii, -p. 259. Sweden and the United Provinces ac- ceded to this treaty on July 21, 1780, and January S, 1781, respectively OFFICIAL DOCUMENTS 47 the primitive rights of mankind, and which Her said Majesty claims and adopts as a rule of her conduct in the present war. As this at- tention of Her Imperial Majesty, in watching over the reciprocal rights of nations, has been honored with the approbation of all neu- tral Powers, Her said Majesty has engaged in this affair, which mate- rially concerns her most essential interests, and has proceeded therein so far that it may be seriously considered as a subject worthy of the attention of both the present and future time, as it tends to the estab- lishment of a permanent and invariable system of the rights, preroga- tives, and engagements of neutrality. His Majesty the King of Denmark and Norway, convinced of the justice of these principles, has likewise established and claimed them in his declaration of the 8th of July, 1780, which declaration (as well as that of the Empress of Russia) His said Majesty has caused to be communicated to the belligerent Powers ; and in order toi support these principles efficaciously. His Majesty has ordered part of his fleet to be fitted out. From these proceedings have arisen that harmony and unarjimity with which Her Majesty the Empress of Russia, and His Majesty the King of Denmark and Norway, have thought neces- sary in mutual friendship and reciprocal confidence; and in conform- ity to the interest of their respective subjects, to confirm their com- m,on engagements by the conclusion of a formal convention. To this end Their Imperial and Royal Majesties have chosen and appointed the following plenipotentiaries, viz. : Her Majesty the Em- press of Russia has appointed Charles van Osten, commonly called Baron Saken, Privy Counselor of State, Knight of the Order of St. Ann, Minister Plenipotentiary from Her said Majesty to the Court of Denmark, etc., and His Majesty the King of Denmark and Norway has appointed Otton Count of Thott, Privy Counsellor of State, Knight of the Order of the Elephant, etc., Joachim Otton Baron de Schack-Rathlau, Privy Counselor of State, Knight of the Order of the Elephant, etc., John Henry Baron Eichstedt, Privy Counselor of State, Governor of His Royal Highness the Hereditary Prince of Denmark, Knight of the Order of the Elephant, etc., and Andrew Peter Count Bernstorfif, Privy Counselor and Minister and Secretary of State for the foreign department. President of the Royal Ger- man Chancery, Knight of the Order of the Elephant, etc., which said Ministers, after having exchanged their full powers, which were found to be in due form, have concluded and agreed to the following articles : 48 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 1 That Their aforesaid Majesties are sincerely determined to main- tain, constantly, the most perfect friendship and harmony 'with the different Powers at present engaged in war, and to observe the most scrupulous neutrality; and in consequence thereof they declare, that adhering to this determination, the prohibition of all contraband trade with the Powers at present at war, or with those who may hereafter be engaged therein, shall be strictly observed by their respective subjects. Article 2 To avoid all errors and misunderstandings with regard to commodi- ties which shall be deemed contraband, Her Majesty the Empress of Russia, and His Majesty the King of Denmark and Norway, do hereby declare, that they shall only acknowledge such articles to be contraband commodities as are included and mentioned in the treaties now subsisting between their respective Courts and the one or the other of the belligerent Powers. Her Majesty the Empress of Russia conforms herself entirely In this respect to the Articles 10 and 12 of her treaty of commerce with the Court of Great Britain, and extends likewise the engagements of this treaty, which are founded upon the natural rights of nations, to the Courts of France and Spain; which said Courts, until the date of this present convention, have no treaty of commerce with her empire. His Majesty the King of Denmark and Norway, on his part, con- forms himself chiefly to the 2d article of .this treaty of commerce with the Court of Great Britain, and to the Articles 26 and 27 of his treaty of commerce with France, and extends also the engagements of this last-mentioned treaty to the Court of Spain, as His said Majesty has no treaty with the last-mentioned Power, which determines any conditions relative to this subject. Article 3 As by these means all contraband goods and commodities are deter- mined and ascertained conformable to the treaties and special con- vention subsisting between the high contracting Parties and the bel- OFFICIAL DOCUMENTS 49 ligerent Powers, and chiefly in the treaty between Russia and Great Britain of the 20th of June, 1766, as well as in that between Denmark and Great Britain, dated July 11, 1670, and by that concluded between Denmark and France, on the 23d of August, 1742; the will and in- tention of Her Majesty the Empress of Russia, and of His Majesty the King of Denmark and Norway are, that all other commerce shall be and remain free. Their said Majesties having already set forth in their declaration to the belligerent Powers, that they have laid down, as the basis of their conduct, the general principles of the natural rights of mankind, from whence the liberty of commerce and navigation, and the rights of neuter nations derive, are resolved not to depend any longer upon the arbitrary explication of these rights, which is generally dictated by partial advantages and momentary interests ; with this view. Their said Majesties have agreed upon the following articles : (1) That all neutral vessels shall be permitted tO' navigate from port to port, and on the coasts of the belligerent Powers. (2) That the effects belonging to subjects of the belligerent Powers shall be free on board neuter ships and vessels, excepting only such articles as are stipulated to be deemed contraband. (3) In order to determine what is to be considered as a port blocked up, it is hereby declared, that that port shall only be deemed as such into which no ships can enter without being exposed to an evi- dent peril from the forces that attack the said port, and the ships that shall have taken a station near enough for that purpose. (4) That neuter vessels shall only be liable to be stopped and seized for just and cogent reasons, and upon the most convincing proofs, that justice shall be done unto them without loss of time, and that the proceedings shall always be uniform, speedy, and according to the laws; and that whenever any shall be found to have been stopped, or sufifered any damage without any sufficient cause, they shall not only be entitled to a sufficient compensation, but also to a complete satis- faction for the insult offered to the flag of Their Majesties. Article 4 In order to obtain this end, and to protect the general commerce of their subjects, founded upon these invariable principles, Her Majesty, the Empress of Russia, and His Majesty, the King of Denmark and 50 THE ARMED NEUTRALITY OF 1780 AND 180D Norway, have resolved to fit out, separately, a proportionate number of ships of the line and frigates ; and the squadrons of these respective Powers shall repair to such latitudes, and shall serve as convoys to the trading ships of their respective subjects, wherever the commerce and navigation of each nation shall require it. Article 5 In case that any merchant ships belonging to subjects of one of the high contracting Parties should happen to be in a sea or latitude where no ships of war of their sovereign are stationed, and that they conse- quently could not obtain any protection from the forces of their own nation, the commander of the ships of war of the other Power, upon being duly requested, shall immediately afford them all necessary as- sistance ; and in this case, it is hereby stipulated, that the ships and frigates of the one Power shall always grant the necessary protec- tion and assistance to the trading ships of the other Power ; provided always, that those who shall claim such assistance or protection, shall not carry on any illicit trade which may be contrary -to the laws of neutrality, as received and mentioned here above. Articlf: 6 The present convention shall not be retroactive, and consequently neither of the high contracting Parties can take recognizance of any differences that may have arisen between them and other Powers be- ' fore its conclusion, imless the matter in litigation shall be relative to violences which are still existing, and which may tend to oppress all neuter nations in Europe. Article 7 If, notwithstanding the vigilant and amicable care of the two high contracting Parties, and the most exact observations of neutrality on their part', any Russian or Danish merchant ships should happen to be insulted or taken by the ships of war or privateers of one or the other of the belligerent Powers, the Minister of the offended party shall make proper representations to that Court whose ships of war or privateers have been guilty of the said act ; he shall insist upon a rea- sonable compensation for the damages or loss of time, as well as upon OFFICIAL DOCUMENTS 51 a complete satisfaction for the insult offered to the flag of his sov- ereign. The Minister of the other high contracting Party shall second and support these representations in the most serious and efficacious manner, and thus they shall continue jointly and unanimously until their request is granted. But in case of a refusal, or any unreasonable delay from time to time to redress these grievances, their aforesaid Majesties do hereby declare, that they will make use of reprisals towards that Power that refuses to do them justice, and will im- mediately unite, in the most efficacious means, to execute these just reprisals. Article 8 In case that one of the high contracting Parties, or both together, .should be disturbed, molested, or attacked, in consequence of this convention, or any subject whatever relative thereto, it is hereby stipu- lated and agreed, that the two Powers shall immediately act in con- cert for their mutual and reciprocal defense, and shall employ and unite all their forces to obtain a proper satisfaction, as well for the insult offered to their flag, as for the losses sustained by their re- spective subjects. Article 9 This convention shall be in full force as long as this present war shall last; and the engagements contained therein shall serve as the basis for all future engagements and treaties that may be concluded hereafter, according to circumstances, and in case any other maritime war should hereafter unfortunately disturb the tranquillity of Europe. As to the rest, all that has been stipulated and agreed upon, shall be considered as permanent and invariable, as well with regard to mer- cantile affairs as for what concerns the navy, and shall have force of law in all decisions upon the rights of neuter nations. Article 10 As the end and chief object of this convention is to secure the gen- eral liberty of the commerce and navigation. Their Majesties, the Empress of Russia, and the King of Denmark and Norway, do hereby consent, and engage themselves reciprocally, to permit that other neuter Powers may accede thereto ; and that these Powers so acceding, 52 THE ARMED NEUTRALITY OF 1780 AND 1800 being fully acquainted with the fundamental principles and engage- ments concerned shall share in the obligations and advantages of the said convention. Article 11 And in order that the belligerent Powers may have no pretext for their proceedings, or pretend to be unacquainted with these engage- ments between Their aforesaid Majesties, the high contracting Powers do hereby promise, that they will separately acquaint the belligerent Powers with the measures they have taken, and the motives which have engaged them to unite in this affair ; which measures are the less hostile as they are no ways detrimental to any other Power, but have only for object the security O'f the commerce and navigation of their respective subjects. Article 12 The present convention shall be ratified by the two high contracting Parties, and the ratifications shall be exchanged, in due form, within the term of six weeks from the date hereof, or sooner if possible. In virtue whereof we, whose names are hereunto written, being properly invested with full powers to that eflfect, have signed and sealed this present convention. Done at Copenhagen, the 9th of July, 1780. (L. S.) Charles van Ostensaken (L. S.) J. ScHACK Rathlau (L. S.) A. P. Count of Bernstorff (L. S.) O. Thott (L. S.) H. Eichstedt The ratifications of this convention have been exchanged at Copen- hagen, on the 16th of September, 1780, by the same Ministers Pleni- potentiaries who have signed the same. And as a like convention has been concluded at Petersburg, be- tween the Ministers chosen and appointed to that effect, namely, on ■the part of Her Majesty the Empress of Russia, Count Nikita Panin, Privy Counselor, Minister and Secretary of State, Knight of the Order^ of St. Andrew, St. Alexander-Newsky, and St. Ann; and Count J Osterman, Vice Chancellor of Russia, Privy Counselor of State and Knight of the Orders of St. Alexander-Newsky, and St. Ann; and on the part of His Majesty the King of Sweden, Baron Frederick OFFICIAL DOCUMENTS S3 Van. Nolken, Envoy Extraordinary from His Swedish Majesty to the Court of Petersburg, Chamberlain, Commander of the Order of the Polar Star, and Knight of the Orders of the Sword, and St. John, etc., which said convention has been signed at Petersburg by the above- named plenipotentiaries, after the customary exchange of their full powers in due form, on the 2Jst of July, 1780; and the said convention being word for word of the same tenor and form as that concluded and signed at Copenhagen, excepting only the second article, in which the stipulations concerning the articles that are to be deemed contra- band, are determined and ascertained according to the treaties sub- sisting between the Court of Sweden and other Powers, it has been thought proper to avoid a repetition of what has already been men- tioned, to insert here the second article only, word for word the same as it stands in the treaty concluded and signed at Petersburg, July 21, 1780, between Their Majesties the Empress of Russia and the King of Sweden. Article 2 To avoid all errors and misunderstandings with regard to commodi- ties which shall be deemed contraband, Her Majesty the Empress of Russia, and His Majesty the King of Sweden, do hereby declare, that they shall only acknowledge such articles to be contraband com- modities as are included and mentioned in the treaties now subsistinu; between their respective Courts, and the one or the other of the bel- ligerent Powers. Her Majesty the Empress of Russia conforms herself entirely in this respect to the Articles 10 and 11 of her ti^eaty of commerce with the Court of Great Britain, and extends likewise the engagements of this treaty, which are founded upon the natural rights of nations, to the Courts of France and Spain ; which said Courts, until the date of the present convention, have no treaty of commerce with her empire. His Majesty the King of Sweden, for his part, refers chiefly to the 11th article of this treaty of commerce with the Court of Great Britain, and to the tenor of the preliminary treaty of commerce con- cluded between Sweden and France in the year 1741 ; and although the articles that are to be deemed contraband are not expressly ascer- tained and determined in the last-mentioned treaty, the two Powers having understood to consider each other as Gens amicissima, the Court of Sweden has, however, reserved to itself the same advan- 54 THE ARMED NEUTRALITY OF 1780 AND 1800 tages which the Hanse Towns enjoy in France since times immemorial until the present period. The advantages which are included in the treaty of Utrecht being fully confirmed, the King has nothing to add thereto. With regard to the Court of Spain, His Swedish Majesty finds himself in the same situation as the Empress of Russia, and fol- lowing Her Majesty's example, the King likewise extends to the Court of Spain all the engagements of the above-mentioned treaties, as being founded upon the natural rights of nations. In consequence of this difference in the above article, the two Kings who have joined Her Majesty the Empress of Russia, in this affair, have acceded, as principal contracting Parties, to the treaties and conventions, concluded ^between tliem and Her said Imperial Maj- esty, and to this effect they have signed with their own hand a sepa- rate act, which said acts have been exchanged in due form at Peters- burg by the Ministers of Her Imperial Majesty. Their High Mightinesses the States-General of the United Prov- inces, also acceded to the said contention on the 20th of November, 1780, and under the same conditions, for what concerns the articles of contraband, according to the treaties subsisting between their High Mightinesses and other Powers, which said convention has been signed at Petersburg by their plenipotentiaries on the 5th of January, 1781, with the addition of the following: Article 13 For what concerns the command in chief of the naval forces, in case the squadrons or ships of war of the two higih contracting Parties should happen to meet, or find it expedient to form a junction, it is hereby stipulated and agreed, that the same shall be obeyed as is customary between crowned sovereigns and the Republic of Holland. Additional Separate Articles to the Convention for an Armed Neu- trality between Russia and Denmark of July 8, 1780^ Article 1 As Her Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway have always been equally interested 'Translation. French text at itartens, Recueil de Traites, vol. 3, p. 195. OFFICIAL DOCUMENTS 55 in protecting the security and tranquillity of the Baltic Sea, and in keeping it free from the disturbances of the war and privateering — a system the more just and nattiral since all the Powers whose States border thereon enjoy the most profound peace, — they have mutually agreed to continue to maintain that it i? a closed sea, incontestably such by its situation, on which all nations should and may navigate in peace and enjoy all the advantages of perfect tranquillity, and to adopt to -this end among themselves measures capable of guaranteeing this sea and its coasts from all hostilities, piracy, and acts of violence. They will also maintain the tranquillity of the North Sea off their coasts, in so far as the circumstances and the interests of their States may render it necessary. Article 2 Their said Majesties, desiring nothing more ardently than the res- toration of peace based upon equitable principles, sentiments with which the love of humanity and the desire to prevent the further shedding of blood has inspired them- since the beginning of the dis- sensions which now divide Europe, mutually promise to devote them- selves to this same object, to consider the means which may accomplish this purpose, and when the opportunity presents' itself, to seize it and to cooperate with sentiments of friendship and of confidence in so salutary an' endeavor. Article 3 Since the situation of the places makes very short the period during which the fleets of Her Imperial Majesty can operate outside of the Baltic for the protection of neutral commerce on the other seas. His Majesty the King of Denmark and Norway 'engages to receive in his ports and to treat on absolutely the same footing as his own, all Rus- sian ships or vessels that may enter therein to pass the winter, to furnish them from her warehou.-fes with equipment and provisions oi all kinds of which the crew may have need at the same prices at which such equipment and provisions are furnished to the vessels of Her Majesty; in a word, to make all necessary arrangements for the proper care of these vessels and their crews. Article 4 If it should be found necessary to join the two squadrons, this will be done in accordance with the principles of perfect equality, and 56 THE ARMED NEUTRALITY OF 1780 AND 1800 when one or more vessels happen to be together, that one of the com- manding oflicers who has the higher rank, or in case they are both of the same rank, the one who is senior in that rank, shall take com- mand of the war-ships and frigates of both nations. In general, an effort will be made to arrange the cruising, so far as possible without a formal junction, in such a way as to form a kind of chain and to give each other aid in case of need. As to salutes, they shall always be in conformity with the stipulations of the conventions between the two nations. Article 5 At the more or less distant time when peace shall have been restored among the belligerent Powers, Her Imperial Majesty of all the Rus- sias and His Majesty the King of Denmark and Norway shall use their best efforts with the maritime Powers in general to bring about the universal acceptance and recognition in all naval wars which may arise hereafter of the system of neutrality and the principles estab- lished in the present convention, forming the basis of a universal maritime code. Article 6 As soon as this convention shall be ratified and the exchange of ratifications shall have been made, the high contracting Parties shall take care to communicate it, with the exception of the separate arti- cles, in good faith and conjointly and with one accord, through their Ministers accredited to foreign Courts, and specifically to those which are at present at war. In order that they may proceed uniformly to this end, there is attached hereto the form of the instrument which the respective Ministers shall transmit on this occasion. These separate articles shall be considered and regarded as form- ing a part of the convention itself and shall have the same force and effect as though' they were inserted word for word in the said con- vention concluded on the same day between the high contracting Par- ties. They shall be ratified in the same manner and ratifications shall be exchanged at the same time. In faith whereof we, the undersigned, by virtue of our full powers, have signed them and affixed thereto the seals of our arms. OFFICIAL DOCUMENTS 57 Done at Copenhagen, the 9th day of the month of July, in the year of grace one thousand seven hundred and eighty. [L. S.] P. C. Bernstoeff [L. S.] Charles d'Osten called Sacken [L. S.] O. Thott [L. S.] O. ScHACK Rathlow [L. S.] J. H. Eickstedt In fidem Concordantia Pierre de Bacunin Treaty between Great Britain and Denmark, July 21, 1780^ The two contracting Powers do reciprocally engage, for themselves and their successors, not to assist the enemies of the one or of the other, in time of war, with soldiers, vessels or any kind of goods and merchandise, accounted contraband, as also to prohibit their subjects to do the same, and to punish severely, as infractors of the peace, those, who shall act contrary to prohibitions given to this effect, but that no doubt may be left concerning what is to be understood by the term contraband, it is agreed upon, that by this denomination are only to be understood: fire-arms as well as other kind of weapons and things thereto belonging, as : canons, muskets, morters, petards, bombs, gren- adoes, light-balls, saucisses, carriages, rests, bandoliers, powder, match, saltpetre, bullets, pikes, swords, head-pieces, cuirasses, halberts, lances, javdins, horses, saddles, holsters, belts, and generally all other imple- ments of war, as well as ship-timber, tar, pitch or rosin, copper in sheets, sails, hemp and cordage, and generally every thing which properly serves for the equipment of ships, excepting however un- wrought iron, and fir-planks; but it is expressly stipulated, that fish, and flesh, fresh or salted, wheat, flour, corn or other grain, pulse, oil, wine, and generally all that serves for the nourishment and sustenance of life, are not accounted contraband; so that all these articles may always be sold and transported, like other merchandise, even to places, possessed by an enemy to either of the two Crowns, provided, they are not besieged or blocked up. iHennings : Sammlung von Staatsschrifften, vol. 2, p. 102.. 58 THE ARMED NEUTRALITY OF 1780 AND 1800 Declaration of the King of Sweden to the Courts of London, Ver- sailles and Madrid, July 21, 1780^ Ever since the beginning of the present war, the King has taken particular care to manifest his intentions to all Europe. He imposed unto himself the law of a perfect neutrality ; he fulfilled all the duties thereof, with the most scrupulous exactitude; and in consequence thereof, he thought himself entitled to all the prerogatives naturally appertaining to the qualification of a sovereign perfectly neuter. But notwithstanding this, his commercial subjects have been obliged to claim his protection, and His Majesty has found himself under the necessity to grant it to them. To effect this, the King ordered last year a certain number of men of war to be fitted out. He employed a part thereof on the coasts of his kingdom, and the rest served as convoys for the Swedish mer- chant ships in the different seas which the commerce of his subjects required them to navigate. He acquainted the several belligerent Powers with these measures and was preparing to continue the same during the course of this year, when other Courts, who had likewise adopted a perfect neutrality, communicated their sentiments untO' him, which the King found entirely conformable to his own, and tending to the same object. The Empress of Russia caused a declaration toi be delivered tO' the Courts of London, Versailles, and Madrid, in which she acquainted them of her resolution to protect the commerce of her subjects, and to defend the universal rights and prerogatives of neutral nations. This declaration was founded upon such just principles of the law of nations and the subsisting treaties that it was impossible to call them into question. The King found them entirely concordant with his own cause, and with the treaty concluded in the year 1666, between Sweden and France; and His Majesty could not forbear to acknowl- edge and to adopt the same principles, not only with regard tO' those Powers, with whom the said treaties are in force, but also with regard to such others as are already engaged in the present war, or may be involved therein hereafter, and with whom the king has no treaties to reclaim. It is the universal law, and when there are nO' particular engagements existing, it becomes obligatory upon all nations. In consequence thereof, the King declares hereby again, "That he ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 185. See also, Annual Register, 1780, p. .353. OFF'ICIAL DOCUMENTS 59 will observe the same neutrality, and wit^i the same exactitude, as he has hitherto done. He will enjoin all his subjects, under rigorous pains, not to act in any manner whatever contrary to the duties which a strict neutrality imposes unto them; but he will effectually protect their lawful commerce, by all possible means, whenever they carry on the same, conformably to the principles here above mentioned. Reply of the Court of London to the Danish Declaration, July 25, 1780^ During the whole course of the defensive war which the King has been waging against France and Spain, His Majesty has constantly respected the rights of all friendly and neutral Powers, in accordance with the terms of his different treaties with them and with the clearest and most generally recognized principles of the law of nations, the common law of those nations which have no special conventions. Such conventions have long existed between Great Britain and Denmark. The flag of His Danish Majesty and the commerce of his subjects have been respected and shall continue so to< be, in con- formity with the treaties existing between the two nations, which are the foundation and the support of that friendship which has united them for more than a century. Their mutual rights and duties are clearly set forth in these solemn engagements, which would become worthless if they could be changed otherwise than by mutual agree- ment. They remain in full force at the present time and are equally binding upon both contracting Parties ; they constitute an inviolable law for both. The King has followed and will contimte to follow it as such with that spirit of equity which has guided all his acts, and with a sincere friendship for the King of Denmark, in the expecta- tion of finding and in the conviction that he will always find in His Danish Majesty similar sentiments and a like conduct. Stormont London, July 25,- 1/80. iTranslation. French text at Martens, Re-cueil de Traites, vol. 3, p. 182. Presented by Mr. Eden on August 7 of the same year. 60 TTIE ARMED NEUTRALITY OF 1780 AND 1800 Reply of France to the Danish Declaration, July 27, 1780^ The King's reply tO' the last declaration of the Empress of Russia made known how well calculated are the principles of His Majesty with regard to the freedom of the seas to bring about security and tranquillity for neutral vessels. By his sincere commendation of the views and measures of the Empress of Russia, His Majesty an- nounced in advance to the Powers which this Princess invited to make common cause with her what they might expect from his justice and his love for the general good. Since the King of Denmark has now made known his determina- tion to uphold a system, the establishment of which is regarded by His Majesty as the greatest benefit that the present war has been able to bring about for Europe, the King hastens to inform His Danish Majesty of his entire approval of the content of the declaration which this Prince has had transmitted to him. The wise and clear laws, whose execution are demianded by the King of Denmark, are in full accord with the provisions and orders of His Majesty at the very beginning of this war, looking to the safeguarding of neutral vessels from all the injuries, to which, according to the law of nations, they should not be exposed. His Majesty recently issued additional orders to the officers of his navy and to privateers carrying his flag not to disturb in any manner neutral navigation ; he did not need any instigation to order that Danish vessels in particular should be treated as belonging to a friendly Power which respected the laws of the sea and should enjoy all the advantages of neutrality. His Majesty hopes that the King of Denmark, pursuant to the principles contained in his declaration, will likewise be good enough to reiterate the order to his subjects to conduct themselves in every respect in conformity with the usages which a wise foresight has established to prevent abuse of freedom of navigation. The more favorable a belligerent Power shows itself to be toward a neutral nation, the more scrupulously should the latter keep within the limits prescribed by the law of nations. His Danish Majesty, by joining with the Empress of Russia and the other Powers that shall embrace the same cause, will aid in estab- lishing for the future the status of neutral vessels, in order that the calamities that follow in the wake of war may be diminished and that ^Translation. French te.xt at Martens, Recueil de Traites, vol. 3, p. 180. OFFICIAL DOCUMENTS 61 the whole of Europe may no longer be made a victim in quarrels which may arise between one or more of the nations of that continent. The King desires that His Danish Majesty shall reap the full ben- efit that he expects from his prudence and requests him tO' rest assured that no wrong will be perpetrated by his subjects on Danish naviga- tors, or, if such a thing should happen, that reparation shall be made with all possible celerity. His Majesty expresses his most sincere hope that the cooperation of the Powers, which are equally interested in the freedom of the seas, may render immutable laws whose equity he recognizes authori- tatively. He is especially pleased to assure the King of Denmark on this occasion of his never-ending desire that the Danish nation shall enjoy the benefit of the sentiments of friendship and confidence which unite the two Courts. Versailles, July 27, 1780. Convention for an Armed Neutrality between Russia and Sweden, August 1, 1780^ Article 1 Their respective Majesties are fully and sincerely determined to keep upon the most friendly terms with the present belligerent Powers and preserve the most exact neutrality; they solemnly declare their firm intention to be, that their respective subjects shall strictly observe the laws forbidding all contraband trade with the Powers now being, or that may hereafter be, concerned in the present disputes. Article 2 To prevent all equivocation or misunderstanding of the word con- traband. Their Imperial and Royal Majesties declare that the mean- ing of the said word is solely restrained to such goods and commodi- ties as are mentioned under that denomination in the treaties subsist- iTranslation. French text at Martens, Recueil de TraitSs, vol. 3, p: 189. See also, Annual Register, 1781, p. 300. 62 THE ARMED NEUTRALITY OF 1780 AND 1800 ing between their said majesties and either of the belligerent Powers. Her Imperial Majesty abiding principally by the 10th and 11th arti- cles of the treaty of commerce with Great Britain; the conditions therein mentioned, which are founded on the right of nations, being understood to extend to the Kings of France and Spain; as there is at present no specific treaty of commerce between the two latter and the former. His Danish Majesty, on his part, regulates his conduct in this particular by the first article of his treaty with England, and the 26th and 27th of that subsisting between His said Majesty and the King of France, extending the provisions made in the latter to the Catholic King; there being no treaty ad hoc, between Denmark and Spain. Article 3 And whereas by this means the word contraband, conformable to the treaties now extant and the stipulations made between the con- tracting Powers and those that are now at war, is fully explained; especially by the treaty between Russia and England of the 20th of June, 1766; between the latter and Denmark, of the 11th of July, 1670; and between Their Danish and most Christian Majesties, of August 23, 1742; the will and opinion of the high contracting Powers, are, that all other trade whatsoever shall be deemed and remain free and unrestrained. By the declaration delivered to the belligerent Powers, Their con- tracting Majesties have already challenged the privileges founded on natural right, whence spring the freedom of trade and navigation; as well as the right of neutral Powers; and being fully determined not to depend in future merely on an arbitrary interpretation, devised to answer some private advantages or concerns, they mutually cove- nanted as f olloweth : ( 1 ) That it will be lawful for any ship whatever to sail freely from one port to another, or along the coast of the Powers now at war. (2) That all -merchandise and effects belonging to the subjects of the said belligerent Powers, and shipped on neutral bottoms, shall be entirely free; except contraband goods. (3) In order to ascertain what constitutes the blockade of any place or port, it is to be understood to be in such predicament, when the assailing Power has taken such a station, as to expose to imminent danger, any ship or ships that would attempt to sail in or out of the said ports. OFFICIAL DOCUMENTS 63 (4) No neutral ships shall be stopped without a material and well- grounded cause; and in such cases justice shall be done to them without loss of time; and besides indemnifying, each and every time, the party aggrieved, and thus stopped without sufficient cause, full satisfaction shall be given to the high contracting Powers, for the in- sult offered to their flag. Article 4 In order to protect officially the general trade of their respective subjects on the fundamental principles aforesaid. Her Imperial, and His Royal Majesty have thought proper, for effecting such purpose, each respectively to fit out a proportionate rate of ships of war and frigates. The squadron of each of the contracting Powers shall be stationed in a proper latitude, and shall be employed in escorting con- voys according to the particular circumstances of the navigators and traders of each nation. Article 5 Should any of the merchantmen belonging to the subjects of the contracting Powers, sail in a latitude where shall be no ships of war of their own nation, and thus be deprived of the protection; in such case, the commander of the squadron belonging to the other friendly Power shall, at the request of said merchantmen, grant them sincerely, and bona fide, all necessary assistance. The ships of war and frigates, of either of the contracting Powers, shall thus protect and assist the merchantmen of the other: provided nevertheless, th(at under the sanction of such required assistance and protection, no con- traband be carried on, nor any prohibited trade, contrary to the laws of the netitrality. Article 6 The present convention can not be supposed to have any relative effect; that is to extend to the differences that may have arisen since its being concluded : unless the controversy should spring from con- tinual vexations which might tend to aggrieve and oppress all the Europman nations. Article 7 If, notwithstanding the cautious and friendly care of the contract- ing Powers, and their steady adherence to an exact neutrality, the 64 THE ARMED NEUTRALITY OF 1780 AND 1800 Russian and Danish merchantmen should happen to be insulted, plun- dered, or captured by any of the armed ships or privateers belonging to any of the belligerent Powers : in such case the ambassador or envoy of the aggrieved party, to the offending Court, shall claim such ship or ships, insisting on a proper satisfaction, and never neglect to obtain a reparation for the insult offered to the flag of his Court. The minister of the other contracting Power shall at the same time, in the most efficacious and vigorous manner, defend such requisition, which shall be supported by both parties with unanimity. But in case of any refusal, or even delay in redressing the grievances complained of; then Their Majesties will retaliate against the Power that shall thus refuse to do them justice, and immediately agree together on the most proper means of making well-founded reprisals. Article 8 In case either of the contracting Powers, or both at the same time, should be in any manner aggrieved or attacked, in consequence of the present convention, or for any reason relating thereto; it is agreed, that both Powers will join, act in concert for their mutual defense, and unite their forces in order to procure to themselves an adequate and perfect satisfaction, both in regard to the insult put upon their respective flags, and the losses suffered by their subjects. Article 9 This convention shall remain in force for and during the continu- ance of the present war; and the obligation enforced thereby, will serve as the ground-work of all treaties that may be set on foot here- after; according to future occurrences, and on the breaking out of any fresh maritime wars which might unluckily disturb the tranquil- lity of Europe. Meanwhile all that is hereby agreed upon shall be deemed as binding and permanent, in regard both to mercantile and naval affairs, and shall have the force of law in determining the rights of neutral nations. Article 10 The chief aim and principal object of the present convention being to secure the freedom of trade and navigation, the high contracting Powers have antecedently agreed, and do engage to give to all other OFFICIAL DOCUMENTS 65 neutral Powers free leave to accede to the present treaty, and, after a thorough knowledge of the principles on which it rests, share equally in the obligations and advantages thereof. Article 11 In order that the Powers now at war may not be ignorant of the strength and nature of the engagements entered intO' by the two Courts aforesaid ; the high contracting Parties shall give notice, in the most friendly manner, to the belligerent Powers, of the measures by them taken; by which, far from meaning any manner of hostility, or causing any loss or injury to other Powers, their only intention is to protect the trade and navigation of their respective subjects. Article 12 This convention shall be ratified by the contracting Powers, and the ratifications interchanged between the Parties in due form, within the space of six weeks, from the day of its being signed, or even sooner, if possible. In witness whereof, and by virtue of the full powers granted us for the purpose, we have put our hands and seals to the present treaty. Done at Copenhagen, July 21, 1780. (Signed) Charles D'Osten (Called Sacken) O. Thott J. SCHACK RaTHLOW H. Eickstedt A. P. Bernstoeff Acceded to, and signed by the plenipotentiaries of the Court of Sweden, at Petersburg, July 21, 1780, and by the States-General accepted November 20, 1780, and signed at Petersburg, January 5, 1781, with the addition only of Article 13 If the respective squadrons, or ships of war, should meet or unite, to act in conjunction, the command in chief will be regulated accord- ing to what is commonly practised between the crowned heads and the Republic. 66 THE ARMED NEUTRALITY OF 1780 AND 1800 Additional Separate Articles to the Convention for an Armed Neu- trality between Russia and Sweden of August 1, 1780^ [These six articles are word for word oi the same tenor as those between Russia and Denmark, except that to Article 3 between Rus- sia and Sweden there is added:] Her Imperial Majesty undertakes the same obligations with respect to His Majesty the King of Sweden, and her commanding officers in the ports of the Baltic Sea shall con- sequently have orders to follow the same procedure in the case of Swedish war-ships and all Swedish vessels, when they are so re- quested. Reply of the Court of London to the Swedish Declaration, August 3, 1780^ Throughout the entire course of the war in which Great Britain finds herself engaged as a result of the aggression of France and Spain, the King has invariably followed those principles of justice and equity which guide all his actions. He has faithfully fulfilled all his engagements with respect to friendly and neutral Powers. The flags of these Powers and the commerce of their subjects have been respected in conformity with the terms of these engagements. Those existing between Great Britain and Sweden are clear and formal and furnish a direct reply to the declaration which Baron de Nolken has transmitted by the express orders of the Court. The 12th article of the treaty of 1661 fixing the form of certificate with which vessels must be provided gives the following reason there- for: Ne vero libera ejusmodi navigatio, aut transitus foederati unius, ejusque subditorum ac incolarum,, durante bello alterius foederati. terra marive cum aliis gentibus, fraudi sit alteri con- foederato, mercesque et bona hostilia occultari possint. The same article contains a precise and formal stipulation, namely: ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 205. ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 188. OFFICIAL DOCUMENTS 67 Si hostis bona in confoederati navigio reperiantur, quod ad hostem pertinet, praedae solummodo cedat, quod vero ad con- foederatum illico restituatur. The treaty of 1666 prescribes the same certificate and gives the same reasons therefor. Such are the engagements binding the two nations, which can not be violated without impairing the friendship which has so long existed between them and of which these engagements are the foundation and support. Treaties can be changed only by mutual agreeihent of the contract- ing Parties, and as long as they are in force, they are equally binding upon both. The King shall, therefore, follow his engagements with Sweden as a sacred and inviolable law, and he shall maintain it as such. Reply of the Court of France to the Swedish Declaration, August 4, 1780^ The King has constantly desired that neutral Powers should re- ceive no injury in the war in which His Majesty is engaged. His orders have ensured to the vessels belonging to these Powers enjoy- ment of all the freedom, alio wed them by the laws of the sea, and if some individual navigators have had cause for complaint in that they have suffered by act of subjects of His Majesty, they have received prompt and equitable justice. His Majesty has seen with satisfaction in the declaration trans- mitted to him in the name of the King of Sweden that the intention of this Prince was to continue to protect the navigation of his sub- jects against all violence, that His Swedish Majesty had even resolved to take measures in concert with other Courts, and particularly with the Empress of Russia, for the more effectual attainment of this end. The King can only express the hope that the cooperation of His Swedish Majesty with these Powers may bring about the good re- iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 186. 68 THE ARMED NEUTRALITY OF 1780 AND 1800 suits which they intend, that the sea may be free, in conformity with the law of nations and with treaties, which are recognized as being merely an explanation of that law: that, finally, all nations which are not taking part in the war may not suffer from its evils. His Majesty has repeated to the officers of his navy and to the privateers that carry his flag, orders in accord with the principles upon which the security and tranquillity of all neutral vessels must rest. With still more reason the subjects of the King of Sweden must be assured that they will sufl^er no mishap at the hands of the subjects of His Most Christian Majesty, since no Frenchman is igno- rant of the alliance and friendship which have long existed between the two Crowns. Inasmuch as the precautions taken by His Swedish Majesty will keep Swedish navigators within the bounds of the strictest neutrality, this will be a further reason for them to insist upon the execution of the laws of which their Master shows himself to be the zealous pro- tector, laws which the King ardently hopes to see adopted by the unanimous cooperation of all the Powers, so that none may have to suffer from the war if the sovereign takes no part therein, when he shall have conformed to the rules prescribed for the prevention of the abuse of the neutral flag. Versailles, August 4, 1780. Reply of the Court of Spain to the Danish Declaration, August 7, 1780^ His Catholic Majesty, in the reply which he had made to the dec- laration that the Express of Russia presented to him through her Minister residing at his Court, in all respects similar to that which by order of the said sovereign was presented to the other belligerent Courts, declared in the most positive terms that his views with regard to the rights of neutral nations in their navigation and commerce were entirely in accord with those of Her Imperial Majesty, and the or- iTranslation. French text at Martens, Rccueil de Traites, vol. 3, p. 183. OFFICIAL DOCUMENTS 69 ders immediately given to observe with respect to vessels under the Russian flag a course of conduct and a manner of treatment in con- formity with the principles which the said Princess declared it tO' be her desire to follow and uphold, are a proof of the sincerity and the good faith with which the King is acting; and so is the promptness Avith which he ordered the same provisions in favor of Dutch vessels, ai; soon as the States-General declared their adhesion to the system of the Court of Russia. Now that the King of Denmark (by a dec- laration signed by his Minister of State on July 8 last) has formally announced that his principles with respect to the rights and freedom which neutral nations should enjqy in their lawful commerce in time of war are those which the Court of St. Petersburg has adopted and which His Majesty is likewise determined to uphold in favor of the Danish flag and the free navigation of his subjects, His Catholic Majesty does not for a moment hesitate to accept this explanation oi His Danish Majesty and to declare that at the very outset he gave orders that the same rules be observed with regard to Danish vessels as with Russian and Dutch ships. Consequently the said vessels shall not be arrested by the commanders of his royal fleets, nor by the cap- tains of privateers that may encounter them at sea, although they may have on board effects belonging to the enemies of Spain, pro- vided they be not such effects as have been declared by general trea- ties contraband in time of war, and these vessels shall be shown every possible consideration in the matter of the notification and observance of the declaration of March 13 of the present year, pertaining to the blockade of Gibraltar, of which Denmark was notified, it being under- stood that those attempting to sail to that port shall be exposed to the peril set forth in Article 4 of the said declaration. But the Catholic King, in following this line of action, can not doubt that Denmark and the other Powers that have determined or shall determine to up- hold their rights and to defend the freedom of their flags shall be likewise impartial in appraising and in responding in kind to the con- duct adopted toward them by the Powers at war, as they are obliged to do by their own system and the just maxims which have been so openly adopted. St. Ildephonso, August y, ijSo. (Signed) Coxtnt de Florida-Blanca 70 THE ARMED NEUTRALITY OF 1780 AND 1800 Declaration of September 7, 1780, by which His Danish Majesty accedes to the Convention of August 1, 1780, between Russia and Sweden^ Christian VII, by the grace of God, King of Denmark, Norway, the Vandals and the Goths, Duke of Schleswig-Holstein, Stomarn, Dit- marsen and Oldenburg, etc., etc., make known that, having been in- vited to accede as a principal contracting party to- the convention con- cluded and ratified on July 21/August 1, 1780, at St. Petersburg, between Her Majesty the Empress of all the Russias and His Majesty the King of Sweden, similar in all respects to the convention con- cluded between us and Her said Imperial Majesty, and signed at Copenhagen on July 9, 1780. We formally certify by this declaration thatj having equally at heart the maintenance of the general freedom of neutral commerce and navigation, and being animated in this re- spect by the same sentiments as Their said Majesties, we accede in all due form as a contracting party to the aforesaid convention, and we bind ourself and our successors by all the stipulations contained in its clauses and articles, as well as in the six separate articles thereto annexed, and we likewise accede entirely to the form and tenor thereof. We understand that Her Majesty the Empress of all the Russias and His Majesty the King of Sweden will likewise declare by a formal instrument the receipt and acceptance of this our declaration and will recognize us as a principal contracting party with respect to the said convention; and as His Majesty the King of Sweden, having been invited likewise, has also acceded in the same manner and in the same sense to the exactly similar convention concluded between us and Her Majesty the Empress of all the Russias, and signed at Copenhagen on July 9, 1780. We solemnly declare that we accept his accession and that we recognize His Swedish Majesty as a prin- cipal contracting party of that convention and of the six separate articles thereto annexed. In faith of which we have signed the present act of accession and of acceptance with our own hand and have thereto affixed the great seal of our Crown. Done and given at our Castle of Fredensburg, this 7th day of the month of July [September?], in the year of grace one thousand seven hundred and eighty, and of our reign the fifteenth. CHRISTIAN R. A. V. Bernstorff ^Translation. French text at Martens, RecueJl de Traites, vol. 3, p. 207. OFFICIAL DOCUMENTS 71 Declaration of September 9, 1780, by which His Majesty the King of Sweden accedes to the Convention of July 9, 1780, between Russia and Denmark^ Gustavus, by the grace of God, King of Sweden, oi the Goths and the Vandals, etc., etc., etc., heir to Norway, Duke of Schleswig- Ilolstein, of Stormaria and of Ditmarsen, Count of Oldenburg and of Delmenhorst, etc., etc., make known that, having been invited to accede, as a principal contracting party, to the convention concluded and ratified on July 9 of the present year at Copenhagen, between Her Imperial Majesty of all the Russias and His Majesty the King of Denmark, in all respects similar to the convention concluded be- tween Her said Imperial Majesty, signed at Petersburg on July 21/ August 1 of the present year and ratified by us on the 9th of Sep- tember following, we formally certify by this present declaration that, having equally at heart the maintenance of the general freedom of neutral commerce and navigation, and being animated in this respect by the same sentiments as Their said Majesties, we accede in all due form, as a principal contracting party, to the said convention; and we bind ourself and our successors by all the stipulations contained in the clauses and separate articles thereto annexed, and we likewise accede entirely to the form and tenor thereof. We understand that Her Imperial Majesty of all the Russias and His Majesty the King of Denmark will likewise declare, by a formal instrument, that they have received and accepted this our declaration and will recognize us as a principal contracting party with regard to the said convention ; and as His Majesty the King of Denmark, having been invited likewise, has also acceded in the same manner and in the same sense to the exactly similar convention concluded between us and Her Majesty the Empress of all the Russias, and signed at St. Petersburg on July 21/ August 1 of the present year, we solemnly declare that we accept his accession and that we recognize His Danish Majesty as a prin- cipal contracting party of that convention and of six .separate articles thereto annexed. In faith whereof we have signed this present act of accession with our own hand and have affixed thereto our Royal seal. Done and given at Spa, September 9, 1780. GUSTAVUS U. G. Franc ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 205. 72 THE ARMED NEUTRALITY OF 1780 AND 1800 Resolution of the Continental Congress of the United States re-, garding Accession to the Principles contained in the Declaration of the Empress of Russia, October 5, 1780^ Congress took into consideration the report of the committee on the motion relating to the propositions of the Empress of Russia; and thereupon came to the following resolutions: Her Imperial Majesty of all the Russias, attentive tO' the freedom of commerce, and the rights of nations, in her declaration to the bel- ligerent and neutral Powers, having proposed regulations, founded upon principles of justice, equity, and moderation, of which Their Most Christian and Catholic Majesties and most of the neutral mari- time Powers of Europe, have declared their approbation; Congress, willing to testify their regard to the rights oi commerce, and their respect for the sovereign, who hath proposed and the Powers that have approved the said regulations: Resolved, That the Board of Admiralty prepare and report instruc- tions for the commanders of armed vessels commissioned by the United States, conformable to the principles contained in the declara- tion of the Empress of all the Russias, on the rights of neutral vessels : That the Ministers Plenipotentiary from the United States, if in- vited thereto, be and hereby are respectively empowered to accede to such regulations, conformable to the spirit of the said declaration, as may be agreed upon by the Congress expected to assemble in pursu- ance of the invitation of Her Imperial Majesty. Ordered, That copies of the above resolutions be transmitted to the respective Ministers of the United States, at foreign Courts, and to the honourable the Minister Plenipotentiary of France. '^Journals of the Continental Congress (Washington, 1910) , vol. 18, p. 90S ; Wharton, Diplomatic Correspondence of the American Revolution, vol. 4, p. 80. OFFICIAL DOCUMENTS 73 Memorandum of the Court of Russia presented to the Courts of the Belligerent Powers to notify them of the Acicession of Den- mark and Sweden to the System of Armed Neutrality, Novem- ber 7, 1780^ The undersigned, Envoy, etc., has received instructions from his Court to communicate to the Court of a convention drawn up and signed at St. Petersburg on June 28/July 9 between Her Im- perial Majesty of all the Russias, his sovereign, and His Majesty the King of Denmark and Norway, July 21 /August 1 between Her Im- perial Majesty and His Majesty the King of Sweden, which has for its sole and only object the maintenance of the rights and liberties belonging to every neutral nation. Anxious to perform his duty, he requests the Minister of His Majesty kindly to bring it to the knowledge of the King. His Majesty will find in all the clauses and articles of this treaty an expression of the principles of perfect impartiality and neutrality, as well as of the sentiments of justice and equity which constantly guide the Empress, his sovereign, and which have decided her to adopt measures calculated to protect her subjects from the losses, vexations, and dangers, to which they, their com- merce and their navigation might be exposed as the unfortunate result of the naval war which is disturbing the tranquillity of Europe. The Empress is pleased to believe from the friendship and the spirit of justice with which His Majesty is animated that he will recognize the equity and peaceful intent of this convention, and that he will ensure the execution of the orders which he has had sent to all his officers and commanders of his war-ships, as well as to his ship-owners, to respect the rights and liberties of neutral nations, just as Her Imperial Majesty has provided measures to prevent her sub- jects from engaging in illicit commerce to the detriment of either oi the Powers at war. iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 208. 74 THE ARMED NEUTRALITY OF 1780 AND 1800 Resolution of the States-General of the Netherlands regarding Their Accession to the System of Armed Neutrality, November 20, 1780"^ Consideration having been given to a communication from Messrs. van Wafifenaar and van Heeckeren, Ministers Plenipotentiary of the States-General of the Netherlands to the Court of Russia, written at St. Petersburg on September 15, last, and received here on October 2, following, giving an account of their conference with Count Panin and Vice Chancellor Count van Osterman upon the subject of their commission, and accompanied by a copy of a convention and some separate articles, together with, a draft of the accession in the form in which the States-General shall sign it, all of which is referred to at length in the above-mentioned communication and in the report of October 2 last: It stands approved and agreed that the States-General's Ministers Plenipotentiary at the Court of St. Petersburg shall be directed and authorized, and by this resolution they are authorized, in the name of the States-General of the Netherlands to accede to the twofold con- vention of that Court with their Majesties the Kings of Sweden and of Denmark, concluded on July 9 and July 21 at ■ Copenhagen and St. Petersburg respectively, and to accept, on the part of the States- General of the Netherlands, the separate articles thereof and the obligations therein stated, for the enjoyment of the advantage thereby contracted, as if the conventions had been entered into and concluded, word for word, between the States-General of the Netherlands and each of the contracting Powers as principal contracting Parties, with reasons established this day in the declarations of the States-General addressed to the belligerent Powers ; and within six weeks of the date of this resolution of the State.s-General, to conform fully to and solemnly to accept that which Her Imperial Russian Majesty and the Kings of Sweden and Denmark have stipulated in their declara- tions to the belligerent Powers, and with regard to contraband mer- chandise, to conform to that which has been stipulated in the treaties concluded between the States-General and the belligerent Powers, and more especially in Article 6 of their maritime treaty with Spain of December 17, 1650, in Article 3 of their maritime treaty with Great Britain of December 1, 1674, and Article 16 of the commercial. ^Translation. Dutch text at Martens, Rccueil de Traites, vol. 3, p. 211. OFFICIAL DOCUMENTS 75 naval and maritime treaty with France, of December 21, 1739, con- cluded for the period of twenty-five years. The States-General con- sider the disposition and the determination of contraband merchan- dise given thereby as perfectly founded upon the law of nations and accept them unreservedly; and they confer the further authorization uix)n the above-mentioned Ministers Plenipotentiary tO' draft for Her Imperial Russian Majesty and Their Royal Majesties, acts regarding the above-mentioned accession and acceptation, embodying in the most friendly tone the fullest obligations, and to transmit the said acts to the above-mentioned Courts, with the request that the necessary acts of acceptation of the above-mentioned accession on the part of the States-General be delivered to them in turn. In consequence of the above-mentioned resolution regarding acces- sion to the above-mentioned convention it is further resolved that within the above-mentioned period of six weeks from the date of this resolution of the States-General, declarations as adopted by the above-mentioned Courts, conformable to the style of those of Her Imperial Russian Majesty and of Their Royal Majesties of Sweden and of Denmark regarding the protection which the States-General intend to extend to the commerce and navigation of their citizens, shall be sent to the Courts of Great Britain, France and Spain. These declarations shall define the character of contraband merchandise and repeat the principles construed in the declaration of Her Imperial Russian Majes'ty and accepted by the States-General. The necessary orders shall be sent to Mr. Lestevenon van Eerkenrode, the States- General's Ambassador at the Court of France, and to Counts van Welderen and van Rechteren, Envoys Extraordinary and Plenipoten- tiary at the Courts of Great Britain and of Spain respectively, in- forming them at once of the time when the above-mentioned declara- tion shall be communicated to each of the belligerent Powers. A copy of the declaration itself shall be sent to the above-mentioned Ministers Plenipotentiary, to acquaint Her Imperial Russian Maj- esty's Ministry thereof; a copy of the declaration shall be left with the said Ministry, and other copies sent to Messrs. van Lynden and Bosc de la Calmette, the States-General's Envoys Extraordinary at the Courts of Sweden and Denmark; other copies still shall be sent to Mr. Smissart, the States-General's Minister at the Court of Por- tugal, and to Mr. van Heiden, the States-General's Envoy Extraordi- nary and Plenipotentiary at the Court of Prussia, the former being 76 THE ARMED NEUTRALITY OF 1780 AND 1800 rendered necessary to perfect accession to the above-mentioned con- vention, and the latter having informed the Ministry of Russia of acceding to the convention in that manner, so that both may make communication to that effect to the Courts whereto they are accred- ited ; and, lastly, copies of the treaty of commerce with Spain in 1650 and with France in 1739 shall, as expressly requested by them, be sent to the Ministers Plenipotentiary at Petersburg. The honorable deputies of the Provinces of Gelderland, Utrecht, VrieS'land, Overyssel, of the town of Groningen and rural Oimme- landen have accepted the resolutions of the States-General, their su- periors, introduced from time to time upon this subject, and those of Holland and West Vriesland, that of the States-General, their su- periors, with regard to the time of notifying the declaration tO' the belhgerent Powers. The honorable deputy of the province of Zealand who was present declared that as the members had knowledge of the fact that the resolution of the States-General, his superior, of the third of this month, here introduced, was against the sentiment of the majority of the other provinces, he had hoped that the said members would be willing to postpone adopting a conclusion, believing that, according to the union, no conclusion could be reached by a majority for the mak- ing of conventions, alliances or treaties. But the other provinces having proceeded to a conclusion, he had accepted, under protest, the consequences which might result, leaving them to the responsibility of the other provinces. Reply of France, December 12, 1780, to the Notification from Her Majesty the Empress of Russia of the Accession of Denmark and Sweden to the System of Armed Neutrality^ The King feels highly flattered by the confidence with which the Empress of all the Russias communicates to him the convention signed at Copenhagen on July 9 last between Her Imperial Majesty and ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 209. OFFICIAL DOCUMENTS 77 the. King of Denmark, and at St. Petersburg on July 21 /August 1 last between Her said Imperial Majesty and the King of Sweden. His Majesty has recognized with pleasure that this convention con- tains the most appropriate measure to ensure the freedom of the seas and the immunity of the flag of neutral Powers. The declarations of His Majesty in this respect, both to Her Majesty the Empress of all the Russias and to Their Danish and Swedish Majesties; the order that he has given to the officers of his fleet and tO' all his privateers ; and the care that he is taking to ensure their execution must con- vince Her Imperial Majesty that the object of the said conventioii will be entirely fulfilled by all captains flying the French flag. His Majesty has had many opportunities during the past three years to make known to his subjects and to Europe that the happiness and prosperity of neutral nations, and of the Russian nation in particular, have entered in no small measure in the calculations of his policy and in his military projects. He hopes that his efforts and his example will help to strengthen the S3'stem which has brought into being and is extending from day to day the association of neutral Powers. His hopes will be fulfilled if there results from this system a diminution of the evils of war and the assurance that princes and peoples who observe a strict neutrality shall never suffer injury from war. Versailles, December 12, 1780. De Vergennes Act of January 4, 1781, by which the States-General of the Nether- lands Accede to the Conventions for an Armed Neutrality con- cluded July 9 and August 1, 1780, between Russia and Den- mark, and Russia and Sweden^ The solicitude of Her Imperial Majesty of all the Russias for the maintenance of the interests and the rights of her subjects having led her to give solid and permanent stability to a just and reasonable system of neutrality at sea, and to contract to this end a formal agreement v/ith His Majesty the King of Denmark and of Norway, which was ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 215. 78 THE ARMED NEUTRALITY OF 1780 AND 1800 followed immediately by a similar one with His Majesty the King of Sweden, has animated Their High Mightinesses the Lords States- General of the United Provinces to accept the invitation of Her Im- perial Majesty and to adopt principles in conformity with those set forth in her declaration and in those of the aforesaid Powers. To this end they have determined, not only to manifest in a formal dec- laration, which was recently transmitted to the Powers now at war, their point of view, similar to that of the Empress and the twO' Kings, her Allies, but also to take part directly and effectively, as principal contracting Parties, in the stipulations contracted among them for the protection of the innocent navigation of their respective subjects. As a result of this determination of Their High Mightinesses, and by virtue of Article 10 of the double maritime convention of Copen- hagen and of St. Petersburg, in which it is stated : The chief, aim and principal object of the present convention being to secure the freedom of trade and navigation, the high contracting Powers have antecedently agreed, and do engage to give to all other neutral Powers free leave to accede to the pres- ent treaty, and, after a thorough knowledge of the principles on which it rests, share equally in the obligations and adyantages thereof. Her Imperial Majesty of all the Russias, in concert with Their Majesties the Kings, her Allies, had even less hesitation in entering into negotiations with Their High Mightinesses, both in her own be- lialf and in behalf of her two Allies, whose desires and views had been entrusted to her, since Their High Mightinesses saw fit to send to her, for this purpose, an embassy extraordinary, instructed to make known in their name how agreeable to them was the invitation of the Empress, and to form the proposed union between the Crowns of the North and the United Provinces. To accomplish this desired and salutary object. Her Imperial Maj- esty has appointed as her plenipotentiaries, Nikita Count Panin, her Privy Councilor, Senator, Chamberlain, and Chevalier of the Orders of St. Andrew, St. Alexander Newsky, and St. Anne, John Count d'Ostermann, her Vice Chancellor, Privy Councilor, and Chevalier of the Orders of St. Alexander Newsky and St. Anne, John Count d'Ostermann, her Vice Chancellor, Privy Councilor, and Chevalier of the Orders of St. Alexander Newsky and St. Anne, Alexander de Bezborodko, Major General of her Armies, and Colonel commanding OFFICIAL DOCUMENTS 79 the Kiovia Regiment of Militia of little Russia, and Pierre de Ba- co'unin, her Councilor of State, member of the Department of Foreign Affairs, and Chevalier of the Order of St. Anne; Their High Mighti- nesses having charged with their full powers William Louis Baron de Wessenaer, Lord of Starrenburg, of the Body of Nobles of the Province of Holland and of Westfriese, Steward of Rhynland, ordi- nary Deputy of the said Province in the Assembly of the States-Gen- eral, and Ambassador Extraordinary and Plenipotentiary of Their High Mightinesses to the Imperial Court of Russia ; Theodore John Baron de Heeckeren, Lord of Brantzenburg, ordinary Deputy in the Assembly of the States-General, representing the First Order of the Province of Utrecht, and their Ambassador Extraordinary and Pleni- potentiary at the Imperial Court of Russia; and John Isaac de Swaart, Resident of Their High Mightinesses at the same Court; who, after having exchanged their full powers, found to be in good and due form, have decided and concluded that the entire twelve articles of the tvvfo conventions of the same content concluded at Copenhagen on June 28/July 9, 1780, between Her Imperial Majesty of all the Rus- sias and His Majesty the King of Denmark and Norway, and at St. Petersburg on July 21 /August 1, 1780, between Her Imperial Majesty >j-. * * 1 (-jieij- clauses and obligations, with the exception of the changes therein, resulting from the nature of the different treaties and engagements existing between the high contracting Parties and either of the Powers now at war, as set forth in Articles 2 and 3 of the double maritim.e convention of Copenhagen and of St. Petersburg, above in- dicated, must be regarded as if they had been made, concluded and established, word for word between Her Imperial Majesty of all the Russias and Their High Mightinesses, as principal contracting Par- ties, with the express reservations that the said Articles 2 and 3 of the aforesaid conventions be particularly adapted to the former en- gagements of Their High Mightinesses with regard to merchandise and contraband. With respect to such merchandise they declare it to be their desire to hold strictly to the stipulations of the treaties concluded between themselves and the belligerent Powers, and specifi- cally in the sixth article of the marine treaty with the Crown of Spain, of December 17, 1650, the third article of their Treaty with the Crown of Great Britain, of December 1, 1674, and the sixteenth ^Apparent omission. so THE ARMED NEUTRALITY OF 1780 AND 1800 article of their Treaty of commerce, navigation and marine with the Crown of France, concluded on December 21, 1739, for the period of twenty-five years, whose provisions and specifications on the sub- ject of contraband Their High Mightinesses extend indefinitely, as being founded on the law of nature and of nations. In order to prevent any inaccuracy, the plenipotentiaries of Her Imperial Majesty shall hand to those of Their High Mightinesses certified copies of the twO' conventions of Copenhagen and of St. Petersburg, which shall be regarded as having been inserted word for word in the present act. Ratifications of this act of accession, concluded between Her Im- perial Majesty of all the Russias, and Their High Mightinesses of the States-General, shall be furnished and exchanged here in St. Petersburg within the period of two months, or sooner if possible.^ It has like^vise been agreed that on the occasion of this exchange of ratifications. Their High Mightinesses shall have transmitted two uni- form declarations, for Their Majesties the two Kings allied with the Empress, in the form hereto annexed,^ which, through the interme- diary of the Minister of Russia are to be exchanged for those of Their aforesaid Majesties, in virtue of which these two Sovereigns and the Lords States-General accept forthwith among themselves the mutual stipulations hereinbefore set forth. In faith whereof we the undersigned, by virtue of our full powers, have signed and affixed hereto the seals of our arms. Done at St. Petersburg, December 24, 1780.^ [L. S.] Count de Panin [L. S.] Count J. d'Ostermann [L. S.] Alexander de Bezborodko [L. S.] Pierre de Bacounin [L. S.] B. DE Wassenaer [L. S.] B. de Heekeren [L. S.] J. J. DE Swaart ^Ratifications of this act were exchanged at St. Petersburg on February 12, 1781, by the same plenipotentiaries who signed it. ^Not printed. ^January 4. 1781, new style. OFFICIAL DOCUMENTS SI Separate Act of January 4, 1781, of Accession of the Netherlands to the Conventions for an Armed Neutrality concluded July 9 and August 1, 1780, between Russia and Denmark, and Russia and Sweden^ The six separate articles forming a part of the double convention of Copenhagen and of St. Petersburg, with the exception of the first article, which contains a special arrangement between the Empire of Russia and the two Crowns of Denmark and of Sweden with regard to the tranquillity of the Baltic Sea, must be considered and regarded as though they had been inserted word for word in the act of ac- cession of Their High Mightinesses to the double convention of Copenhagen and of St. Petersburg, signed here in St. Petersburg this same day. To elucidate and to explain the fourth of these sepa- rate articles relating to a provisional arrangement between the two high contracting Powers in the event of the joining of their squad- rons, it has been agreed with regard tO' the authority of the com- manding officer, to follow the etiquette generally accepted between Crowned Heads and the Republic. In faith whereof, we the undersigned, by virtue of our full powers, have signed and affixed hereto the seal of our arms. Done at St. Petersburg, December 24, 1780.^ [L. S.j Count Panin [L. S.] Count John d'Osteemann [L. S.] Alexander de Besborodko [L. S.] Pierre de Bacounin [L. S.] B. Wassenaer [I... S.] B. van Heeckeren [L. S.] J. J. Swaart ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 219. ^January 4, 1781, new style. 82 THE ARMED NEUTRALITY OF 1780 AND 1800 Dfeclaration of the States-General of the Netherlands relative toi Their Accession to the Conventions for an Armed Neutrality between Russia and Denmark, and Russia and Sweden, Janu- ary, 178P We make known that, having been invited to accede, as principal contracting Parties, to the double convention concluded at Copen- hagen on Jvine 28/July 9 between Her Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway, and at St. Petersburg on July 21 /August 1, 1780, between Her Imperial Majesty of all the Russias and His Majest)' the King of Sweden, we formally certify by this present declaration that, having equally at heart the maintenance of the general freedom of neutral commerce and navigation, and being animated in this respect by the same senti- ments as Their said Majesties, we accede in all due form, as a prin- cipal contracting Party, to the aforesaid double convention, and we bind ourselves in conformity with what has been more fully stated in the act of accession and the separate act signed on December 24, 1780, at St. Petersburg by the plenipotentiaries of Her Imperial Majesty and by those who have been authorized by us, by all the stipulations, clauses, and articles, to which we accede entirely in their form and tenor. We understand that Her' Imperial Majesty of all the Russias and Their Majesties the Kings of Denmark and of Sweden will declare likewise by a formal act that they have received and accepted this our declaration, and that Their Imperial and Royal Majesties will recog- nize us as a principal contracting Party to the double convention of Copenhagen and of St. Petersburg. In faith whereof this present declaration, which sha:ll be exchanged at St. Petersburg for a similar acceptance on the part of His Majesty the King of Denmark and Norway [Sweden] through the interme- diary of Russia, has been given at The Hague, under the Great Seal of our States and initialed by the President of the Assembly and signed by our Clerk. iTranslation. French text at Martens, Rccueil de Traites, vol. 3, p. 220. OFFICIAL DOCUMENTS S3 Declaration of the States-General of the Netherlands to the Courts of the Belligerent Powers, to notify Them of Their Accession to the Conventions for an Armed Neutrality between Russia, and Denmark, and Russia and Sweden, January, 1781^ Article 10 of the double Convention of Copenhagen and of St. Petersburg having been communicated to the Court of London (Versailles, Madrid), announcing the consent of the high contracting Parties to the accession of other neutral Powers; Their High Mighti- nesses the Lords States-General of the United Provinces have deter- mined to form, in concert with Her Imperial Majesty of ail the Rus- sias and Their Majesties the two Kings, her allies, a union founded on a just and reasonable system of neutrality on the sea, having for its object the maintenance of the interests and the rights of their sub- jects. To this end they have acceded as principal contracting Parties, by a formal act signed at St. Petersburg on December 24, 1780, to the conventions of Copenhagen and of St. Petersburg, concluded on June 28/July 9 and July 21/August 1, 1780, between Her Imperial Majesty of all the Russias and Their Majesties the Kings of Denmark and of Sweden. The undersigned Ambassador (Envoy) having the honor tO' com- municate this act to the Minister of His Britannic (Most Christian, Catholic) Majesty requests him to be good enough to bring it to the knowledge of the King his master. His Majesty will find therein a renewed expression of the principles of impartiality, which Their High Mightinesses have constantly professed and which are so in accord with the sentiments of justice and equity which have decided them to adopt the only means calculated to protect their subjects f I'om the losses, vexations and dangers, to which they, their commerce, and their navigation might be exposed as an unhappy consequence of the naval war which is disturbing the tranquillity of Europe. Their High Mightinesses are pleased to believe, because of the friendship and spirit of justice with which His Britannic (Most Chris- tian, Catholic) Majesty is animated, that he will recognize the equity and peaceful intention of such a measure and that he will see to the execution of the orders which he has had issued to all the o>fficers and commanders of his war-ships, as well as to his private ship-owners, to respect the rights and liberties of neutral nations, just as Their High ^Translation. French te.Kt at Martens, Recueil de Traites, vol. 3, p. 221. 84 THE ARMED NEUTRALITY OF 1780 AND 1800 Mightinesses have provided that the subjects of the Republic shail not engage in ilHcit commerce to the detriment of any of the Powers at war. Extract from the Register of Resolutions of the States-General of the Netherlands, regarding the System of Armed Neutrality, January 12, 178 P Veneris, January 12, ijSi. Upon the proposition of the honorable deputies of the Provinces of Holland and of West Vriesland, and upon the special order of the States-General of the said Provinces in their Assembly, after due deliberation it has been determined and agreed upon, that to the ]\Iinisters Plenipotentiary of the States-General at Petersburg, as well as to the Envoys and Ministers von Lynden, Bosc de la Calmette, at the Courts of Stockholm and Copenhagen, instructions shall be sent, there and as they may deem most convenient, to make substantial notification to the efi'ect that the States-General by resolution of November 20, last, whereof they were notified in due time, joined the alliance for the maintenance of the rights of neutrality so worthily established by Her Imperial Russian Majesty, and trust that the alli- ance is thereby perfected, and that therefore, the convention between the Ministers of the Imperial Russian Majesty, and Their Majesties the Kings, to whose Courts each of them is accredited, and the Min- isters of the States-General sent in special mission to Petersburg for that purpose, is concluded and signed, and that the ratifications of the conventional Powers will not fail, but be speedily executed; that at least there will be no difficulty encountered to fulfil the engagements made with the Ministers Plenipotentiary of the States-General; that from the moment when the State should have delivered its declaration to the belligerent Powers, the State should be regarded as having joined the convention, and therefore, from that moment share its ad- vantages, if any untoward event should arise between the time of the declaration and the conclusion of the convention. ^■Translation. Dutch text at Martens, Rectieil de Traites, vol. 3, p. 223. OFFICIAL DOCUMENTS S5 That their States-General depend upon, and have perfect faith in the power, generosity, and loyalty of Her Imperial Russian Majesty and of Their Royal Majesties and other high allies, for the fulfil- ment O'f their engagements and vindication of their own honor, for the execution of the enterprise so worthily undertaken by them to strengthen and safeguard the neutral nations of Europe against the attacks of the belligerent Powers, and persevering in that trust have not hesitated in overcoming their scniples as to the possible results consequent upon the accession to the alliance concluded between the high Powers; and aware of the results which the forwarding of the declaration to the belligerent Powers demanded in the premises might have for the Republic, the States-General have not hesitated to re- solve in effect to join the alliance and to forward the declaration, the sending of the copies of the declarations of the States-General to the belligerent Powers having been notified by their Ministers to Her Imperial Russian Majesty and to Their Royal Majesties. The results have fully justified the exact expectations of the States- General, for His Majesty of Great Britain was greatly displeased with the act of the States-General, and from the moment that His Majesty of Great Britain was informed that the resolution to join the armed neutrality M'as on the point of being adopted by the States-General, His Majesty of Great Britain did not hesitate to address the Republic in a most unusual way, and, without giving it the necessary time for deliberation required by the form of government and constitu- tion of our provinces — of which fact His Majesty of Great Britain must have had knowledge, — Plis Majesty demanded immediate satis- faction and punishment for a pretended offense anent a certain dis- closed act with North America, and without in any way asking for a provisional answer and expression of disavowal, without criticism of the act, and without asking for an opinion from the Department of Justice of the Provinces of Holland and of West Friesland which were concerned in the matter regarding the law of the country and the reasons which might or might not be adduced, so that in the case, the accused persons could be lawfully prosecuted, without which, neither in the realm of Great Britain, nor in the Republic, nor in any well regulated government, any one can be prosecuted. His Majesty, who could thus have received satisfaction or could at least have stayed the threatened measures, decided to obtain independent satisfaction, attacked the RepubHc unawares, and hastened the offensive measures S6 THE ARMED NEUTRALITY OF 1780 AND 1800 which it pleased His Majesty tO' take against the Republic. And when Count von Welderen on the part of the States-General came to hand Lord Starmont the said declaration respecting the right of neutrality the latter almost refused to accept it, saying that he could no- longer receive him as the Envoy of the Republic because the manifesto which he had sent him, now that the Republic was being regarded as. an enemy, had meanwhile been sent to Count von Welderen one hour earlier than the hour appointed the day before by Lord Starmont upon the repeated request for an interview made by Count von Welderen on the same day. The States-General trust that, although the manifesto' of His Ma- jesty of Great Britain, by which His Majesty makes known his in- tention of regarding the Republic as an enemy, does not refer to the alliance for an armed neutrality, yet the entire action of the Ministry of His Great Britamiic Majesty, and the time when and the manner in which the said manifesto was issued, show sufficiently that the hatred toward or for the alliance to- which the States-General recently acceded is the prime reason for the explosion of the displeasure of His Great Britannic Majesty toward the Republic, and the consequences thereof are the capture of a very large number of ships belonging to its citizens and of national war-ships, even as in a publicly declared war. When carefully examined, the manifesto, of which Her Imperial Russian Majesty and Their Royal Majesties have been informed by His Great Britannic Majesty and oi which copies will be sent to the Ministers Plenipotentiary and Envoys for their information, bears evidence of hatred on account of the alliance of the Republic with Her Imperial Russian Majesty and Their Royal Majesties, though an effort has been made to conceal the fact with diplomatic rhetoric, and shows in so far as the Republic is impugned for offenses which shall justify the State in resorting tO' hostile attack, that the same has accepted the neutrality without considering that Her Imperial Russian Majesty and Their Royal Majesties are thereby assailed at the same time, that is, the Powers mediating between Great Britain and the Republic, to whom the treaties have been communicated and are known by them, can not be judged for having contracted a neutrality alliance with a Power which they judge not to be lawfully neutral ; furthermore, it was known before that the Court of Great Britain means to derive its pretended right to renounce its treaty oi 1674 with OFFICIAL DOCUMENTS S7 the Republic, and thus to seize its ships destined for one of the bellige- rent Powers, together with their belongings, from the pretended con- tradiction of the neutrality of the Republic with its engagements. The same reason for His Great Britannic Majesty's action toward the Republic: hatred for its accession to the above-mentioned alliance, can also be seen clearly in the manifesto itself, in so' far as the latter impugns the Republic for facilitating the departure of ammunition ships to France through the revocation of domestic laws. While there is no need to demonstrate the self-evident truth that up' to the present no, laws have been thus revoked by the Republic to facilitate such transportation, the accusation again shows that the stumbling block is found in the right of neutrality which permits the transportation by ship of ammunition to the belligerent Powers ; and upon this right rests the alliance between her Imperial Russian Majesty, Their Royal Majesties and the States-General of the Netherlands, the which has been evidenced and affirmed as lawful and notified by declarations to the belligerent Powers, and from which arose the hatred toward the alliance. At present the States-General has no intention further to discuss, the said manifesto or to make answer to the same, confident that Her Imperial Russian Majesty and Their Royal Majesties are well able to appreciate it, and that their Ministers and Envoys are sufficiently familiar with both the treaties and the acts of the States-General so as to enable them to disprove by strong verbal argumentation the rea- sons specified in the manifesto and to establish convincingly that from the outset of the difficulties — even by restricting the commerce of its inhabitants in its own colony, and by holding one of its governors in the West Indies responsible because of complaint lodged against him, — the States-General has shown its unwillingness to do anything to the advantage of the colonies in America and that it has constantly upheld that principle ; it is therefore evident and clear that His Great Britan- nic Majesty's displeasure toward the Republic and the consequences thereof are to be found in the effects of the hatred for the above- mentioned alliance, and on that account finds justification for insist- ing upon the true meaning of Articles 7, 8 and 9 of the alliance with Her Imperial Russian Majesty and Their Royal Majesties ; that the States-General — though it had reason to feel aggrieved because of a single act which upon the intervention of the allies was repaired, — before resorting to armed force had asked the allies to afford it help 88 THE ARMED NEUTRALITY OF 1780 AND 1800 for reparation thereof, but that the States-General having been at- tacked in hostile manner by His Great Britannic Majesty, because of and out of hatred for the convention with Her Imperial Russian Ma- jesty and Their Royal Majesties, and not being in direct relations with His Majesty, has been compelled to defend itself and to resist the attack in the same' manner as it had been attacked and to meet hostilities with hostilities,— believes, if ever it had reason so tO' be- lieve, that it may expect that the allied Powers will be pleased to make an actual and common cause with it and to secure for it full satis- faction, and that the allied Powers will be pleased to assume such further obligations as may be required by the circumstances; the States-General requests this most earnestly and expects this help with all the more confidence, because it feels quite certain that Her Im- perial Russian Majesty and Their Royal Majesties will not permit that the States-General and the Republic shall become the unfortunate vic- tims of their trust in the generosity and the zeal of Her Imperial Rus- sian Majesty and Their Royal Majesties for the maintenance of the right of neutrality, against the power of Great Britain, especially in the present circumstances when that realm is everywhere in arms, and the States-General with the ample navigation of private individuals, and the employment of a large number of sailors is not equal tO' the task of operating the sea power of the Republic, small or large as it may be. The Ministers Plenipotentiary and Envoys at the Courts to which they are accredited shall insistently and urgently request a prompt and sufficient assistance from the allies, so that the States-General ma}'' not, without their help, before and at the time of the first onslaught, have to bear the weight and force of the attack of His Great Britannic Majesty, and that in consequence it m.ay not be exposed to the dan- ger of becoming useless to the alliance. They shall hold themselves ready to enter into such further en- gagements as the high allies might deem necessary for the further- ance of the common cause and mutual defense. They shall endeavor to find out if there is a disposition on the part of some of the allies to place at the service, for the account of the States-General, but for the common defense, some of their armed ships, or if there is willingness to transfer such ships, on the basis of a suitable subsidy, to the States-General which will ever be found pre- pared to perfect such an arrangement, and, finding that there is such OFFICIAL DOCUMENTS 89 ■disposition, they shall do their utmost to strengthen it, and, the sooner the better, to report to the States-General anything definite and agree- able to the great need of the Republic. Netherland Ordinance concerning Commerce and Navigation, January 26, 1781^ The States-General of the United Provinces of the Netherlands to all those who shall see these presents or hear them read, greeting : We announce that, the King of Great Britain having seen fit to make a hostile attack on this State without any valid reason, we find ourselves compelled to do all that can help our defense and to exercise the right which the conduct of the said King gives us to act against him in the same way as he is acting against us. And to prevent any injury from that direction, we are obliged and constrained, in so far as it lies in our power, and in so far as it can be done in conformity with the law of nations and without injury to our allies, friends, and neutrals, to •deprive the said King of the opportunity and the necessary means which he might use to injure, more and more, this State and the good -people of these Provinces. That is why we have found it advisable and deemed it necessary to issue orders, as well as very severe prohibitions, to all those under our authority, and to inform and advise in a friendly manner all other nations which are in alliance with or neutral with respect to this State, and by these presents we order, prohibit, and advise respectively. Article 1 That henceforth no one shall attempt to export from these Provinces on any vessels other than their own (or those that they may hire from the East or West Indian Companies, or other vessels that are permitted belonging to individuals in the service of the colonies of this State, after having obtained permission from the Admiralty, under bond of three times the value, to be verified to the satisfaction of the Admiralty Board within a certain period, proportional to the distances ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 276. 90 THE ARMED NEUTRALITY OF 1780 AND 1800 of the places, and to be declared on arrival at the place of destination) any arms, munitions or any other war material, fireworks, saltpeter,, sulphur, refined or unrefined cannon powder, fuses, cannons, stone mortars, gun carriages, naval carriages, balls, bombs, frames, grenades, muskets, musketoons, gTins, pistols, petards, powder bags, helmets,, breastplates, shoulder-belts, pouches, pikes, halberds, swords, bayonets, and all other fire-arms or steel arms, among which are included gun barrels, locks, and everything that is used in assembling them, horses, saddles, pistol holsters, and everything that is used in harness for horses ; masts, rods, and other turned wood, oak beams and other timber for the construction of ships, sawed or unsawed, the kinds of which are specified and declared to be construction timber by our proclamation of August 1, 1747, as well as canvas, hemp, cordage, string, cables, and furthermore anchors, iron, steel, small iron and steel, all kinds of copper, metal, pitch, and tar, and also flour, wheat,, oats, horse beans and pigeon beans, under penalty of confiscation, if an attempt is made to export any of the above-mentioned articles, and in addition a fine of double their value, one-third of which to go to the informer, one-third to the officer making the accusation, and the remaining third to the State. Article 2 That, moreover, no inhabitant of these Provinces shall attempt to export any of the above-mentioned articles, or to send any ships from these Provinces, or from other countries, kingdoms, places or cities, directly or indirectly, to any ports, islands, cities, or places of Great Britain, or that are under the rule of the said King of Great Britain, whether in Europe or outside of Europe. That no one also, even though a foreigner and not an inhabitant of these Provinces shall undertake- to export any of the aforesaid articles from these Provinces to any of those places; all under penalty of confiscation of the said articles, and, in addition, punishment without mitigation as an enemy of the State. Article 3 And considering that because of the duty that requires every legitimate sovereign to defend and preserve his good subjects and inhabitants by all possible means against all acts of violence and molestation, we can not, and, according to the common law and the OFFICIAL DOCUMENTS 91 practices of all peoples, are not obliged to allow any articles of contra- band to be fujrnished to the said King or to his subjects by any one whatsoever; we desire by these presents to notify and seriously to request and exhort all our allies and friends, neutrals, and, in general, all peoples and nations, not to attempt until further notice to transport from any countries, kingdoms, ports, place or cities of Great Britain or under the rule of the said King, either in Europe or outside of Europe, any articles of contraband, recognized as such in treaties, or, where there are no such treaties between them and us, any munitions of war or arms, artillery and its fireworks, or anything thereto appertain- ing, pistols, bombs, grenades, cannon powder, fuses, balls, pikes, swords, lances, halberds, helmets, breastplates, or other similar arms, as well as soldiers, horses, equipment for horses, or any other war material ; since it is our intention to consider as a legitimate prize and to con- fiscate the aforesaid contraband goods found on board vessels in contravention of our present notice and ordinance, for transportation to the places mentioned. Article 4 We order, furthermore, all our inhabitants and subjects, notifying and exhorting all our allies and friends, neutrals, and, in general, all peoples and nations that desire to navigate toward any kingdoms, countries, cities, or places of this State, situated in the Orient, in the Occident, or toward the north, or that wish to sail from those regions in this direction, to choose and keep to the open sea, since it is our intention, and we so declare by these presents, that every vessel saiHng along the coasts of England, or other countries, islands, or places that are under the rule of the King of England, and all vessels that happen to be in shoals or shallows, thereby not being beyond suspicion of meditating some act in violation of our ordinance and notice, when loaded wholly or partially with any of the above-mentioned articles of contraband, shall be seized and brought in by captains or other naval officers, as well as by the privateers of these Provinces, to be adjudicated by the counselors of the Admiralty, as set forth in Articles 2 and 3 hereof, unless the said vessels should be driven into port by stormy weather or some other great necessity and from the circum- stances it should be thus interpreted and decided in this way by the aforesaid Admiralty Board. 92 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 5 That in order to forestall and prevent any fraud that might be attempted against the present ordinance' and notice, we order and command all owners or vessels and merchants who are inhabitants of these Provinces, or those who send their vessels and goods out of this country; we notify and exhort, moreover, all other persons, of whatever nation they may be or whencesoever they may come, not to load or cause to be loaded in their vessels goods, wares, or merchan- dise, nor to transport them or cause them to be transported in any other way than under regular ship's papers, proper passports, letters of destination, bills of lading, of advice, and of shipment, or other similar documents, as is required for loading and transportation by virtue of the laws and proclamations of the places where the goods, wares, and merchandise are loaded, for we shall consider as subject to confiscation, and now declare to be legitimate prize, all vessels that shall sail with ship's registers of more than one sovereign or regent; as well as the goods, wares, and merchandise with which they are loaded, for which there is found to be more than one letter of destina- tion, two sets of freight invoices, bills of lading, or other documents, as well as vessels and goods which are not properly supplied with the aforesaid requisite documents. Article 6 And in order that every officer and commander of a war-ship, be- longing either to the State or to private owners, who have commissions from His Highness the Prince of Orange and of Nassau, in his capacity as Admiral General of these Provinces, may be assured that the vessels which he may encounter at sea, laden with any of the aforesaid contraband goods, are not bound for the aforesaid ports, cities, and places of Great Britain or other countries under the rule of the aforesaid King, the aforesaid captains shall be permitted to accost at sea all vessels against which there may be any suspicion, and require them to show their ship's registers, passports, letters of destina- tion, and bills of lading, to prove to whom the vessels belong, where and in what place they were loaded, of, what their cargoes consist, and at what point they are to be unloaded. When all these have been shown to them and when they have ascertained that the aforesaid vessels are not bound, with any of the said contraband goods, to anv ports or places under the rule of the King of Great Britain, they shaK OFFICIAL DOCUMENTS 93 permit them to pass freely; but if the contrary should, from the documents or otherwise, appear to be the case, they shall safely bring in such vessels with the goods on board, and shall take possession of all the documents that are found on board of such vessels and that have been shown to them ; as well as to draw up in writing, in all due form, the declarations which the masters and members of the crew shall make with regard to the purpose of their voyage; likewise as to the character of the vessel and of its cargo, and they shall have the master sign these declarations, to be forwarded and delivered together with the documents found, the vessel itself, and its cargo to the member of the Admiralty Board, under whose authority the capturing vessel is. As to vessels under convoy, the declarations of the officers of the convoy that the vessels under their convoy are not loaded with .con- traband goods, according to their full knowledge thereof, must h° accepted, -and no further visit shall be required. Article 7 It is also our intention that all the penalties herein provided shall apply to and shall be enforced against any of our inhabitants, who violate our ordinance, whether merchants, masters, or any one else, together with confiscation of the vessels and of the goods thereon belonging to the owner, as provided hereinbefore; or if they are not within reach, they shall be condemned to pay a fine equivalent to the amount, each one in his individual capacity, upon their arrival in these Provinces. Or if it should be learned and if it should be proved that they had contravened in any way our present ordinance and proclama- tion, they shall be considered as having been caught in the act and brought into port by our war-ships, or else seized and brought to justice in this country by other officers of the State. Article 8 And in order that the execution of our present ordinance and notice may give no legitimate cause of complaint to any king, republic, prince, power, or city, who are in alliance and union with this State, we order and expressly charge by these presents all our nautical commanders and other officers, who are commissioned, whether of the war-ships of the State or of vessels armed by private individuals on comrhissions of His Royal Highness, to be guided strictly by the alliances and 94 THE ARMED NEUTRALITY OF 1780 AND 1800 treaties which we have made or may hereafter make with other kings, repubhcs, princes, powers, and cities, concemirrg the transf>ortation of contraband goods. To the same end, we order our Admiralty Board to notify in particular all nautical commanders, both those of the State and those of privateers armed under commissions of His Highness, to interpret properly the aforesaid Article 3, and to furnish them with extracts from the said treaties, with orders to govern them- selves strictly thereby. Article 9 Jurisdiction of offenses against this ordinance shall belong to the Board of Admiralty in the districts in which the violations shall be discovered, or from which the commanders who shall make the seizures sailed. Article 10 In cases where the offenders are not caught in the act, but are accused thereafter, jurisdiction shall belong to the Board of Admiralty, or to the regular judges before whom they are brought in first instance. And in order that all officers and all persons in general who have at heart the welfare of the State, and who are opposed to such contra- ventions, may be the more attentive to the scrupulous observance of this ordinance by each and every one, and to the punishment of offenders, as an example, in accordance with the terms of these presents, the money realized through confiscation and otherwise shall be applied as it ordinarily is by the proclamations of the respective Provinces of' the United Provinces, to wit: one-third to the informer, whether he is a sworn employee of the State or not, one-third to the officer making the accusation, and the remaining third to the State. Article 11 As to vessels and goods that shall be seized and brought in by any war-ships of this State or by vessels sailing under commissions, because of violation of the present ordinance, and which shall be declared subject to confiscation and lawful prize, the division shall be made according to instructions, proclamation, and ordinance which have heretofore been published or which may hereafter be published. OFFICIAL DOCUMENTS 95 Article 12 And in order that all vessels and goods, which shall be seized and brought to these Provinces because of violations, may be delivered into the hands of the said Board, we order expressly those who shall seize them strictly to observe, and to see to it that all those whose duty it is shall strictly observe, the terms of our proclamation of December 1, 1640, against general pillaging and forcible capture, with the warning that the penalties provided by the said proclamation shall be severely enforced against those who may have attempted any act contrary to the aforesaid prohibition. Article 13 To prevent the losses resulting from the confiscation of the afore- said vessels and goods from falling on any one other than the offend- ers, and from afiEecting through insurance any other inhabitants of these Provinces, as well as to restrict as much as possible English navigation and commerce, we expressly order, not only that none of our inhabitants shall attempt to insure or to have insured directly or indirectly, in this country or elsewhere, any contraband goods, in any way whatsoever ; nor to give or to receive any refunds for the purpose of circumventing our proclamation, either directly or indirectly, on any pretext whatever, under penalty of confiscation of the sums insured by the insurers. That the said prohibition shall apply both to insur- ance and to refunds, and officers who shall be convicted of having neglected this part of their duty shall be severely punished by being deprived of their positions or such other penalty as the case may require. And in order that no one may allege ignorance hereof, these presents shall be proclaimed, posted, and published in the usual way. Done and adopted in our Assembly at The Hague, on January 26, 1781. (Signed) W. v. Lynden By order of Their High Mightinesses, (Signed) Flagel 96 THE ARMED NEUTRALITY OF 1780 AND 1800 Memorandum of the Court of Sweden for the Court of Russia con- cerning the Effect of the Accession of the Netherlands to the System of Armed Nutrality, February 28, 178P When the Republic of the United Provinces of the Netherlands re- solved to take part in the armed neutrality by its accession to the maritime conventions of the northern Powers, it was enjoying com- plete neutrality, and there was no obstacle to the accomplishment of an undertaking which was carried to its perfection by an act of acces- sion and acceptance, signed at St. Petersburg on December 24, last, old style. By this act the Republic bound itself to the common cause of neu- tral Powers, and acquired as such rights to the assistance of the other Powers, with which it was to share the obligations and advantages, in conformity with the terms of the conventions concluded during the past year between Sweden, Russia, and Denmark. But the Republic was unable to maintain very long the status in which it had contracted its engagements.' England declared war on it and forced the Republic to leave the class of neutral Powers and to take its place among the belligerent Powers. All this took place with such marvellous rapidity that the Ambassadors of both nations were recalled, letters of marque despatched, and several Dutch vessels taken before the news of the accession concluded at St. Petersburg reached The Hague. In such extraordinary state of affairs, it is essential that the, three Crowns of the north carefully consider the nature of their engage- ments with respect to the Republic, and decide the question in close union and concert. The system adopted by these Powers is a system of perfect neu- trality. It is only by following this system that they have the right to carry on their commerce freely, that they have bound themselves to protect it and mutually to uphold it. From this point of view they have fixed the obligations and the assistance which they mutually owe each other; their naval armaments are fitted out accordingly and are not intended to take the offensive against any one. The war- ships of a neutral nation, the obligations and advantages are the same on all sides; but it is not the same with regard to a nation at war. Measures can not be concerted, nor can they act in common with such a nation without overstepping the bounds prescribed by a strict neu- iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 235. OFFICIAL DOCUMENTS 97 trality, without upsetting , the system upon which their union and their engagements are founded. In spite of so marked a difference between the position of the three Crowns of the north and that of the Republic of Holland, the latter has addressed the former by memoranda transmitted to the Courts of Stockholm, St. Petersburg, and Copenhagen, in which memoranda the States-General of the United Provinces demand prompt and effective assistance from the three Courts by virtue of the accession of the Re- public to the conventions of St. Petersburg and of Copenhagen, and by virtue of the engagements therein contained. The principal ground on which the Republic bases its demand con- sists in a combination of the steps marking the conduct of the Court of London. It believes that these steps clearly show a determination not to allow the Republic to accede to the conventions of the north- ern Powers. It is out of hatred for this accession that the Republic has been dragged into the war, and therefore, in accordance with Articles 7, 8, and 9 of the said conventions, the Powers which accepted this accession must come to the aid of the Republic. In view of the extraordinary and violent action of Great Britain toward the Republic, in view of the extreme care with which Lord Stormont prevented the declaration of the States-Generalvfrom reach- ing him before the rupture was announced to Count de Welderen, in view of all that preceded and followed this event, it is impossible to deny the motive which actuated the Court of London. But that reason was not given in that Court's manifesto ; it mentions only acts previous to the resolution itself of the States-General with regard to its acces- sion; and Article 6 of the conventions of Petersburg and of Copen- hagen provides that the obligations of the contracting parties do not include matters which arose before the signing of the said conven- tions ; that is to say, that they can have no retroactive effect. The three Crowns of the north are therefore free to choose between adopting the reasoning and the consequences set forth by the States- General, or to accept the reasons announced in the declaration of war, which the Court of London has had published. In the first case, it will be necessary to take part in the war in favor of the Republic ; in the second, they can, if it is deemed advisable, that the demand has been made, considering the Republic's quarrel as foreign to the cause of neutrals and as having arisen before the former's accession ; but both of these lines of action appear to have great drawbacks. In the first case, it would be necessary to renounce the advantages of neutrality. 98 THE ARMED NEUTRALITY OF 1780 AND 1800 the glorious aims they had in mind when they formed the maritime association ; it would be necessary to fling themselves into all the hor- hors and to suffer all the losses which are the natural consequences of war. In the second case, they would be exhibiting to the whole world a spectacle of utter weakness, and their absolute desertion of a State with which they fear to bind themselves by formal engage- ments. There remains between these two extreme courses a middle course, or to speak more accurately, there is an expedient, and it seems advis- able to begin with this. It remains further to see just where this expedient may lead and what its effect will be. This expedient would seem to consist in a declaration which the three Crowns of the north would consider themselves as authorized to have delivered to the Court of London, the terms of which should be decided upon among them- selves, and by which His Britannic Majesty would be informed that the Republic has just acceded to their maritime conventions ; that they regard the Republic, by reason of its accession, as an ally, having the same cause to uphold and the same rights to defend; that the three Crowns of the north have no desire to sit in judgment on the reasons which induced His Britannic Majesty to declare war on the Republic, but that they acknowledge themselves to be sincerely interested in the happiness and welfare of that State ; that because of these sentiments the allied Courts hope that His Britannic Majesty will see fit to open a way for reconciliation and settlement between himself and the Re- public; that the three Crowns would be glad to use their good offices to terminate the differences amicably ; that they would consider them- selves as performing a service essential to humanity, if they could make this reconciliation general, and that in the meantime they hope that both England and the Republic may see fit to make a beginning by ceasing hostilities and by restoring matters to the status that existed before the rupture. According to the agreement reached, this step can be taken either verbally or in writing, but separately, by the Ministers of the three Crowns residing in London. They should also decide among themselves as to the time when these common representations should be made, in order to give their efforts more weight and greater force ; and if their language is supported by the naval armaments, which the Crowns of the north are now making ready, it is believed that England will reflect somewhat seriously thereon. At any rate, the dignity of our Courts would seem to require that they do something in favor of the Republic which is considered as their ally, and it is no OFFICIAL DOCUMENTS 99 less necessary that our action should show to Europe the reasons, the moderation, as well as the firmness which have characterized the con- duct of our Courts up to the present time. It can not be foreseen whether the English Ministry will be willing to enter into negotiations, or whether it will merely pretend to be will- ing ; but in any event, the respective Ministers should at the same time be instructed not to depart from the armistice proposal, nor from the proposal that the Republic shall in the meantime enjoy freedom of commerce ; in default of which they can reply that they are not author- ized to listen to proposals by England; but they will receive the pro- posals of that Court ad referendum, if such a condition is granted them. The three Crowns of the north will consult with the Republic concerning the matters to be submitted, or they will reduce the whole to what they consider just and reasonable; and they shall strive by common action to persuade both of the interested Powers to accept these conditions. If in the course of such a negotiation there should be an opportunity to bring together the other belligerent Powers, this opportunity shall be eagerly seized and an effort shall be made to bring about a general pacification, establishing on the conclusion of peace the general mari- time code for neutrals, adopted by our Courts, the general establish- ment of which will meet the wishes of the whole world and will elevate the Crowns cooperating therein to the highest point of glory. Stockholm, February I'j, f/Si. Memorial of the States-General of the Netherlands to the Court of Sweden, February 28, 1781^ The underwritten Envoy Extraordinary from their High Mighti- nesses the States-General of the United Provinces, to His Majesty the King of Sweden, in pursuance of an express order from his masters, has the honor to propose to his Swedish Majesty. That their High Mightinesses have acceded, by their resolution of the 20th of November, 1780, to the treaty of armed neutrality, in con- ^Annual Register, 1781, p. 311. 100 THE ARMED NEUTRALITY OF 1780 AND 1800 f ormity to the invitation of the northern Powers ; and placing the most perfect confidence in the power, magnanimity, and fidelity of Their Imperial and Royal Majesties, for the fulfilling of their engagements, and the maintaining of their dignity, by accomplishing a work so glori- ously undertaken, namely, the Hberty of the seas, and freedom of navi- gation for all neutral nations, were not deterred by the consideration of the consequences, which that accession and declaration might be productive of to the Republic, from the part of the belligerent Powers. But their High Mightinesses have declared in favor of this accession and declaration, in replying implicitly on the sentiments of Their Imperial and Royal Majesties, whom they also acquainted in due time, of the measures taken in consequence thereof. That the event has also justified their requisition, in regard to the British Court: since the minister of the latter, after his fruitless en- deavors to thwart the accession to the alliance, took the resolution, on the first notice he had of it, to speak in a strain truly unprecedented, and ill suited to the mutual regard which the respective sovereigns owe to each other : -without so much as granting to the Republic a sufficient time to consider on the matter, according to the political system of the Republic, which His Britannic Majesty is fully acquainted with: the English Minister insisted, nevertheless, upon an immediate and speedy satisfaction, and the punishment of a pretended offense, occasioned by the discovery of a negotiation with North America, without receiv- ing as an ample satisfaction, the provisional answer, nor the formal disavowal of their High Mightinesses of a negotiation, of which (as acknowledged even by His Britannic Majesty) they had not the least share, or knowledge : of a negotiation relating to a pretended treaty, which, in itself, sufficiently denotes, from its terms, only the sketch of an eventual treaty entered into by private persons, without being formally authorized thereto by the body of the magistrates of Amster- dam, or by the states of the province of Holland, and much less by the States-General, whose members are alone authorized to enter into engagements in the name of the Republic. The British Minister went even so far as to refuse noticing the resolution, by which the province of Holland (the only one concerned) was required to deliberate, how far the laws of the country might give authority to prosecute the persons accused, and punish them; a formality, ■ without which no punishment can be inflicted, neither in England nor in this Republic, or any other country. Nay, the said OFFICIAL DOCUMENTS - <^V ' 101 Minister went so far as to threaten, that in case of~a"1refusal, his sovereign would adopt such means, as to procure himself that satisfac- tion. It was at the same time resolved to attack the Republic by sur- prise, and so far hasten the measures taken to begin hostilities, that Lord Stormont, making use of vain pretenses, would not so much as accept from Count Welderen the aforesaid declaration; and answered, under his hand, "That he (Slormont) could no longer look upon him as the Minister of a friendly Power, after having officially acquainted him of his King's manifesto:" whilst this very manifesto (and this should be noted) was delivered into the hands of Count Welderen, only an hour before the time appointed by Lord Stormont, the pre- ceding day, for giving him audience. That, moreover, although no mention is made in the manifesto alluded to, of the Republic acceding to the treaty of the armed neutrality (which it was of the utmost im- portance to pass over in silence), it nevertheless appears clearly, to the penetrating eye of Your Majesty, as well as to all Europe, if the whole proceedings are attended to, and the time and manner in which the manifesto was published, that the hatred, occasioned by the Republic acceding to the confederation of armed neutrality, is the true motive of his British Majesty's resentment, and the only one that could excite him to an open attack against the Republic, by seizing, at once, upon a great number of Dutch merchantmen, and some ships of war. Be- sides that the aforesaid manifesto, known to your majesty, sufficiently displays the cause of England's displeasure: the more so as amongst the pretenses made use of to varnish over the hostilities against the Republic, it is said, that it had taken a neutral part : without the cabinet of St James's deigning to observe, that such answer was insulting to the neutral Powers who are perfectly acquainted with the treaties now in force between England and the Republic ; and that the latter could not be charged with an intention of entering into an alliance with a Power not lawfully neuter in the present contest, and without observing that this liberty of negotiating had been put beyond all doubt, by England itself ; since, by suspending, in April, 1780, the effects of the treaty passed in 1674, the English having manifested their intent of looking henceforth upon the Republic as a neutral Power, no ways privileged by any treaty. That for the reasons here above mentioned, the animosity of Great Britain appears still more conspicuous, from the ill-grounded reproach contained in the said manifesto against this Republic, that their High 102 THE ARiMED NEUTRALITY OF 1780 AND 1800 Mightinesses had encouraged the exportation of naval stores for France, by suspending the usual duties on those commodities, whilst it is known to all the world, that such a suspension has never taken place, and that the Republic had a right to export those commodities, not only agreeably to the treaty in 1674, but also in conformity to the principles laid down by the neutral Powers in the convention of armed neutrality. That consequently it would be needless to enter any farther into the merits of the said manifesto; as His Swedish Majesty has it in his power to appreciate himself its value, and must, moreover, be fully persuaded that the line of conduct pursued by their High Mighti- nesses since the beginning of the troubles with America, is an evident proof, that they have never favored or countenanced the revolted colonies ; witness the many partial condescensions in favor of England, which were merely gratuitous on the part of their High Mightinesses, by circumscribing the trade within their own colonies ; by refusing to grant the protection of their convoys to vessels laden with ship timber ; and by recalling the Governor of St. Eustatia on some ill-grounded complaints of the British ministry: condescensions which have been rewarded by the attack and seizure of the convoy of Count Byland ; by a violation of the territories of this Republic, and by the taking by force some American vessels from under the very batteries of the island of St. Martin. That Their High Mightinesses having thus faithfully adhered to the system of moderation, it is evident that the resentment of His Britan- nic Majesty arises merely from their accession to the treaty of armed neutrality ; and that, consequently. Their High Mightinesses are fully authorized to claim the performance of the conditions stipulated in the Articles 7, 8, and 9 of the treaty of armed neutrality, which form the basis of that union and alliance contracted between Their Imperial and Royal Majesties and the Republic. That therefore no obstacles can hinder or delay the fulfilling of the engagements contracted by virtue of the said confederation, of which the Republic ought to be considered as a member from the very moment in which their High Mightinesses acceded to the same resolution at The Hague; and dispatched their declaration, in conformity to the said accession and convention, to the belligerent Powers. That if Their High Mightinesses had to complain only of a single act of offense, or an attack committed against them, which was likely to be redressed by the friendly interposition of their allies, they would OFFICIAL DOCUMENTS 103 have claimed their intervention rather than have recourse to arms ; but as their High Mightinesses find themselves actually and suddenly at- tacked in an hostile manner by His Britannic Majesty, in consequence of, and from mere resentment of the above mentioned alliance, they find themselves under the necessity of repelling force by force, and to return hostilities for hostilities; being fully persuaded that the allied Powers will not hesitate to make this their common cause, and to procure to their Republic due satisfaction and, indemnity for the losses occasioned by an attack equally unjust and violent; and that the said Powers will moreover, in conjunction with the States-General, take such farther measures, as the exigences of the present circumstances may require. This Their High Mightinesses solicit with great earnest- ness, and rely upon it with so much more confidence, as they are firmly persuaded, that the generous and equitable sentiments, which actuate Their Imperial and Royal Majesties, will not suffer them to let the Republic fall a victim to a system of politics, not less glorious than founded in equity, and established for the security of the rights of neutral nations; and especially as the Republic, if left singly exposed to the iniquitous and violent attacks of England, would hardly be able to cope with that overbearing Power, and thus run the hazard of becoming totally useless to the said confederation. For these reasons, the underwritten envoy extraordinary, insisting on the motives urged here above, and fully persuaded that the ratifi- cations of the treaty signed at Petersburg will take place as soon as possible, has the honor, in the name and by express order of his masters, to claim the performance of the engagements stipulated in the Articles 7, 8, and 9 of the said treaty, and to require, in virtue thereof, a speedy and adequate assistance from His Swedish Majesty, whose noble and equitable sentiments, acknowledged by all Europe, will not permit him to abandon the complete establishment of a system worthy the highest praise. The friendship and affection of Your Majesty towards their High Mightinesses, leave them no doubt of Your Majesty's willingly grant- ing the assistance which they now claim, and also promise to the under- written envoy a speedy and satisfactory answer, which he solicits the more anxiously, as every moment's delay may be attended with heavy and irreparable losses to the Republic. (Signed) D. W. van Lynden Stockholm, February 28, 1781. 104 THE ARMED NEUTRALITY OF 1780 AND 1800 Rescript of Her Majesty the Empress of Russia fo Count de Moussin Pouschkin, Her Minister to Sweden, 178P Your reports and the communications of Baron Nolken, the Swed- ish Minister, informed us at approximately the same time both oi the disposition of the Court of Sweden with regard to the war which has broken out between the two maritime Powers and of the desire of His Swedish Majesty to learn our own sentiments on this sub- ject. Accustomed as we are to reply in kind to the confidence of our allies, we are still less inclined to deviate from this rule in the present circumstances, in which consideration for our respective engagements with regard to armed neutrality must elicit in the saine degree our attention and our interest. Therefore, you are authorized to speak confidentially with Count Scheffer, so that he may inform his mas- ter, telling him that as ^oon as we learned of the sudden departure of the Duke of York from The Hague, we hastened to make the strongest kind of representations to the Court of London, to prevent it from entering upon active hostilities. We were then ignorant of the fact that hostilities were to follow immediately upon the departure of its Ambassador. Being convinced of this fact a few days later and realizing the futility of any step to prevent hostilities, we turned our attention to new measures better adapted to the times and cir- cumstances, which would be capable of extinguishing the sparks of war at the outset. We were led to this course by a twofold reason: the thought of humanity suffering from the shedding of innocent blood, and the interests of neutral nations with regard to their com- merce with belligerents. Although, after the formal request of the King of England for our mediation, conjointly with the Emperor of the Romans, to bring about peace between him and the Courts of France and Spain, there seemed to be some hope for opening peace negotiations, nevertheless, as time was required to discuss the matter with the two Crowns and to receive their mutual consent, we have deemed it advisable to find a shorter way to reconcile England and Holland and have ofifered our separate mediation for that purpose. It was our intention by this action to prevent in this reconciliation the discussion of any subject that is foreign to them, especially the ques- tion of the independence of the Americans, which would have caused the chief difficulty. The States-General received our offer with iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 240 OFFICIAL DOCUMENTS 105 gratitude, and were eager to take advantage of it, as you will see from the enclosure herewith. England, on the contrary, declined, postponing its reconciliation with the Republic until the general peace negotiation, under the joint mediation of the two Imperial Courts. When that takes place, we shall not fail to exert our own efforts in favor of the Republic of Holland as well as to interest His Majesty the Emperor in its behalf, in order that it may be included in the general pacification. After having given assurances to the States- General, we promised them at the same time to confer amicably with our allies with a view to a further common and unanimous effort with the Court of London, to bring it to a moderate course and to the love of peace. We hesitated the less to give these assurances tO' their High Mightinesses, because we noted in the memorandum of February 17, communicated by Baron Nolken, a copy of which is enclosed here- with for your information, a decided determination on the part of His Swedish Majesty to follow a similar course. The entire con- tents of this memorandum show, on the one hand, the profoimd pene- tration of that Prince, and, on the other hand, a point of view in per- fect accord with ours. In truth, the time and the circumstances in which Great Britain has attacked her old ally, the Republic of Hol- land, indicate sufficiently that the real cause of her aggression lies in the accession of the States-General to our maritime conventions, the more so because Holland thereby protected the navigation and com- mercial industries of her subjects, the greater part of which was carried on with the enemies of England. But, on the other hand, it is no less true that the actual rupture preceded the formal accession of their High Mightinesses to the con- ventions of Copenhagen and Petersburg, and that the reasons set forth antedate and are foreign to the cause of the allies of the armed neutrality. In the first part of this argument. Articles 7, 8, and 9 are entirely favorable to the Dutch; but Article 6 frees us, in terms no less clear, from the duty of participating in their war with England. So essential a difference in the stipulations of these conventions leaves the three allied Courts free to follow the course that is most advan- tageous and the most in harmony with their interests."" There could be no more judicious or wiser appraisement of the delicacy of the decision to be made than that adopted in the Swedish memorandum. The drawbacks on each side were discussed and 106 THE ARMED NEUTRALITY OF 1780 AND 1800 shovN^n in their true light, with an indication of the best way to avoid them. In admitting this method — that is to say, the observance of neutrahty as the rule of conduct for the three allied Crowns in the new war between maritime Powers, — we did not fail to inform at once the Courts of Stockholm and Copenhagen of the orders which we had transmitted to our commanding officers at sea to regard the Republic of the United Provinces as a neutral Power with respect to the two branches of the House of Bourbon, and belligerent with re- spect to England. In calculating the time, we shall expect to hear soon from you and from the Councilor of State, Mr. Sacken, that the Kings our allies have likewise given similar orders in their States, so that all our actions and all the steps that we take shall be every- where entirely uniform in all respects, and bear witness tO' the close - union among us, which in the centuries to come must justify this beneficent system of neutral merchant navigation. After having taken the measures that we owe to the welfare of our own States before all foreign interests, we shall not fail, as we have said heretofore, to employ in favor of the Republic of Holland all means compatible with this paramount duty. Consequently we willingly give our support to the idea of His Swedish Majesty that suitable representations be made at the Court of London in the name of the three allied Courts. In the Swedish memorandixm there is question of a declaration, but a declaration might by its very nature carry us beyond our intentions, while a mere verbal hint, expressing the same views with the same force, can bind us in no way against our will and desire. This observation, as simple as it is essential, will not escape Count Scheffer's sagacity, with whom you are to confer as to the wording of these representations, as to the time when they shall be made at London, and as to the manner in which our respec- tive Ministers at that. Court shall make them. We should not have placed any obstacle in the way of the- adoption of the very wording proposed in the above-mentioned memorandum, since we found it as moderate as it was in keeping with the purpose in view, if circumstances, which have now become well known to the Court of Stockholm, did not seem to require certain changes. To this end, you will find hereto annexed a new draft of the representa- tions, which you will bring to the knowledge of Count de Cheffer, idling him that in our opinion, in order that they may be more readily understood by the English Ministry, they might be delivered in writ- OFFICIAL DOCUMENTS 107 ing, on condition, however, that they be regarded as merely a verbal hint. We shall not object if the Court of Sweden or the Court of Denmark, for reasons of their own, should make use of a different wording or of a different style. It is sufficient if the substance is the same, and if on that account the English Ministers pay greater atten- tion to this salutary action on the part of the three sovereigns in concert. The speeches and the conduct of these Ministers indicate plainly enough that nothing short of the fear of involving their country in a war with all Europe and of being taxed with personal responsibility therefor will induce them to listen to reasonable terms of peace. To make them more tractable, it would doubtless be well to keep this fear alive, in them. There is a means of accomplishing this which is as efficacious as it is inexpensive in the fact that the sovereigns hold a considerable portion of their naval forces armed and ready for action. Let the Swedish and Danish squadrons cruise for a time beyond the Sound, and we for our part shall keep a squadron in the Mediter- ranean and another in the Arctic Ocean, as a defensive measure, fol- lowing the example of the preceding year against foreign privateers. And as, to assist this twofold action, our squadrons which passed the winter of last A^^ar at Leghorn and at Lisbon, are to return imme- iiately or have already returned to the Baltic, we shall thus present at the same time very respectable armaments in these different seas. The possibility of the Russian, Swedish, and Danish squadrons meeting at the same point immediately on the orders of their sovereigns will doubtless have its effect on all the belligerent Powers and will at the same time ensure the safety of the merchant navigation of our respec- tive subjects. Therefore such a joining of forces, even before it is effected, will secure to the three Courts a very great and a very real advantage. In communicating a summary of this rescript to Mr. Sacken, we enjoined him to discuss its contents with the Danish Min- ister and to inform us without delay of the result of their conference. He has orders to inform you directly, so that as much time as possi- ble may be gained in putting into execution concerted and unanimous measures, to be decided upon among us, and so that we may be in a position to give our Minister at London necessary instructions, which shall be sufficient together with those that our allies will give to their Ministers at the same Court. We enclose herewith a copy of the rescript sent to the said Mr. Sacken. You will bring it to the knowl- 108 THE ARMED NEUTRALITY OF 1780 AND 1800 edge of the Swedish Minister, and you will insist in your conversa- tion with him upon the necessity of his Court's entering, on its part, into direct communication with the Court of Copenhagen, also for the purpose of saving time. As it is far from our intention to embarrass, in a common cause, the will and intentions of the Kings, our allies, you will not fail in your conversation with the Swedish Minister to discuss with him the sentiments of his own Court, and to receive ad referendum all proposals that he may submit, assuring him in ad- vance that we shall consider them with all due respect and deference. Prussian Declaration and Ordinance concerning Navigation and Maritime Commerce, April 30, 1781^ His Majesty the King of Prussia, etc., in vicAV of the almost general maritime war now taking place in the southern parts of Europe, has taken especial care and measures to procure to his subjects engaged in navigation and maritime commerce all possible security, and to that end has not only had all the belligerent Powers requested to impart to the commanders of their war-ships and ship-owners strict orders to have the Prussian flag adequately respected, and that Prussian ships bearing merchandise which, according to usages and international law, is free and not to be regarded as contraband, shall everywhere be allowed to pass unmolested and unhindered ; that they shall be neither damaged nor stopped, and even less be taken to foreign ports without necessity and authority, concerning which matters they receive friendly and encouraging assurances from the respective Courts ; the said Courts, in order better to observe that object, have instructed their Ambassadors residing at the Courts of the belligerent Powers, opportunely and energetically, by intercession and representation, to receive their sea- faring subjects whose ships might possibly be captured and confiscated, and, as frequently happens, be robbed at sea, so that such ships may soon be released and compensated, and that legal action arising there- from may be decided and settled as soon as possible, and with due im- ]jartiality. Now, in order that the Royal Ambassadors may properly ^Translation. German text at Martens, Recueil de Traites, vol. 3, p. 284. OFFICIAL DOCUMENTS 109 attend to these matters, the Royal Prussian subjects who find themselves in such situations as described, must therefore address themselves in person, or by duly authorized agent, to the Royal Ambassador accred- ited to the Court where the claim is to be presented, and acquaint him with the difficulty and with all the facts concerning it, that in the proper place and by his intercession he may assist them. They must not, however, rely solely upon such ministerial intervention, but must present their complaints to the admiralty and maritime courts of the country to which their ship is ta]<:en, or where they sustained injur}', and with the required proofs, legally prosecute their complaints through the various courts established in the country, through authorized agents' or advocates, in which case, it is to be hoped, they shall receive good legal assistance, and in the want of such assistance they can address themselves to the royal Ambassadors, in order, if necessary, to present proper complaint at every Court, according to the circum- stances, and to bring about their redress. However, in order still further to secure the navigation of the Prussian subjects, His Majesty the King of Prussia has had the request presented through his Ambassadors, to Her Majesty the Em- press of all the Russias and both the other two northern maritime Powers, which three Courts, as is well known, have allied themselves in defense of maritime neutrality: that they, as Powers with which His Majesty is living in truest friendship, instruct the commanders of their war-ships, to take under their protection and convoy, such Prus- sian merchant ships which they may meet on the sea, as long as they remain within their sight and cannon range, in case such ships should be captured or molested by the war-ships and ship-owners of the belligerent Powers. Through a written declaration for Her Minis- try, Her Imperial Majesty of all the Russias, has given assurances to His Majesty, as her confederate ally; that the commanders of her war-ships had not only been ordered to protect against molestation and attack the ships of Prussian merchants and sea-farers as belonging to a Power allied with her, and to observe most strictly the rules of neutrality as established in international law, in case they should encounter such ships, but that her Ambassadors accredited to the Courts of the belligerent Powers would be instructed that, as often as the Royal Prussian Ambassadors had cause to present claims and com- plaints to these Courts because of obstructions to commercial naviga- tion of Prussian subjects, the Ambassadors should support them 110 THE ARMED NEUTRALITY OF 1780 AND 1800 through their intervention, in the name of Her Russian Imperial Majesty; that in return, Her Majesty expected His Majesty the King of Prussia to impart similar instructions to his Ambassadors at the Courts of the belligerent Powers, conformably to the maritime con- vention of the northern maritime Powers, and to support in all cases by emphatic intervention the representations of the Ambassadors of the northern Powers allied in behalf of maritime neutrality, in case they had cause to demand satisfaction for the subjects of their sovereigns. His Majesty the King of Prussia has received with obliging grati- tude this friendly declaration of Her Imperial Majesty and made a corresponding declaration, instructing his Ambassadors at foreign Courts accordingly. On the occasion of other maritime negotiations, His Majesty had already requested the Royal Court of Denmark to extend to Prussian merchant ships the protection of the Danish maritime Power, and in answer thereto, had received the friendly assurance that the Royal Danish war-ships would take all Prussian merchant ships under their protection, provided that these ships would conform to maritime treaties entered into between the Danish Crown and other Powers. His Majesty the King of Prussia has made a similar request of the Royal Swedish Court, and from the friendship of His Majesty the King of Sweden, expects to receive such assurances as have been received from the Empress of Russia and from the King of Denmark. Therefore, all these circumstances are herewith announced to all royal subjects who engage in sea-faring and in maritime commerce, so that they and the ship captains may act conformably thereto; and in cases of liecessity, should they be attacked, molested or captured on the sea by the war-ships and ship-owners of the belligerent nations, they may address themselves to such Russian Imperial, Royal Danish or Royal Swedish war-ships, as may be cruising near-by, ask for their protection and assistance, and as far as possible keep in touch with the fleets and convoys of these three northern maritime Powers. In view of the fact, however, that it is merely the intention of His Majesty the King, by the above-mentioned measures to safeguard the lawful and innocent maritime commerce of his subjects, and in no way to injure the high Powers which are waging war among them- selves and with which His Majesty is living in friendship, nor to favor any trade which might be injurious to them or unlawful, there- OFFICIAL DOCUMENTS HI fore, all royal subjects engaging in maritime commerce and naviga- tion, shall so organize their commerce and navigation that they will obsei-ve a strict neutrality, in accordance with natural law or the generally accepted rights of nations. But, as there is a difference between the different treaties which one and other Courts have entered into, therefore the royal Prussian subjects shall preferably conform themselves to the well-known declaration made by Her Imperial Maj- esty of all the Russias during the preceding year to the belligerent Powers, and to the ordinance issued by Her Majesty, May 8, 1760, to her Board of Trade, which His Majesty regards as njost conform- able to the law of nations and to their own rights, and carry on their maritime trade in accordance therewith. In consequence. His Majesty the King of Prussia hereby commands all his subjects who engage in navigation and maritime trade : Article 1 That they shall not take part in the present war under any pretext nor, under the Prussian flag, supply the belligerent Powers with any merchandise which is generally regarded as contrabarid and forbidden, or with real war necessities such as cannon, mortars, bombs, grenades, guns, pistols, bullets, flint-stones, fuses, powder, saltpeter, sulphur, pikes, swords and saddles., Of such they shall not carry more on their merchant ships than required for their own use. Article 2 Prussian navigators may, in Prussian ships carry to the beUigerent and neutral nations all other goods which, apart from those indicated in the preceding article, are not forbidden nor real war necessities, especially the products of any royal province; and His Majesty ex- pects from the sense of justice and of friendship of the belligerent Piowers that they will not permit their armed ships to molest and to seize Prussian ships carrying masts, timber, hemp, tar, corn and other like articles, not real war necessities, but which may subsequently be used to such ends, and which constitute the foremost and almost the only articles of Prussian trade ; otherwise, Prussian maritime com- merce would be destroyed; and His Majesty can not be expected to consent that the said commerce be stopped or allowed to stagnate because of the war between the belligerents. On the ground of these 112 THE ARMED NEUTRALITY OF 1780 AND 1800 same principles it is hoped that the belligerent Powers will let pass free and unhindered, that they will not appropriate and seize, nor con- fiscate the unprohibited merchandise and cargoes of P'russian subjects which might be found aboard the ships of the belligerent nations, nor the unprohibited merchandise of the belligerent nations which is on board Prussian ships, and in all such cases His Majesty will as far as possible protect his subjects, will personally see to it and cautiously act to the end that their merchandise and cargoes be shipped on Prussian ships under the Prussian flag, and not to engage to a large extent in the transportation of merchandise and goods belonging to the bellig- erent nations, and to guard against all possible misunderstandings and mishaps, especially to carry on a purely legitimate Prussian maritime trade. Article 3 All Prussian ships sailing on the sea must provide themselves with regular passes and attestations from the boards of the admiralty, of the war and of the authorities of each province, or from the magis- trates of each locality, in the customary way, as well as with the usual charter document, bill of lading and other certificates which must state the quality and quantity of the cargo, the name of the owner and consignee together with that of its destination. These maritime docu- ments must be clear and unequivocal, must 'be at all times on board of each ship, and under no circumstances ever be thrown overboard ; and especially, every skipper must guard against false maritime papers. Article 4 If loaded in a foreign port, every Prussian ship must there provide itself with the required and customary local maritime papers, in order to prove its identity everywhere, to what nation it belongs, the cargo it carries, whence it comes and whither it is bound. Article 5 There shall be no maritime officers and employees on board Prussian ships, nor shall more than one-third of the sailors belong to the bellig- erent nations. Article 6 All Prussian navigators are hereby forbidden to carry cargoes and merchandise of whatever nature, to such localities and parts as are OFFICIAL DOCUMENTS 113 really besieged, or closely blockaded and closed by one of the bellig- erent Powers. Article 13 Prussian subjects, sea-farers and merchants shall not lend their names to foreign nations, but shall carry on their commerce as is permissible in accordance with the rights and customs of the peoples, in such manner as not to cause injury to any one of the belligerent nations, nor to gfive cause to any one of the belligerent nations to enter a rightful complaint. Those royal subjects who conform themselves strictly to this ordi- nance may expect all possible protection and assistance from His Royal Majesty; those, however, who act against this ordinance may not expect such protection and assistance, but must remain personally responsible for all danger and loss they might incur in so acting. Given at Berlin, April 30, 1781. By special command of His Majesty the King. E. F. V. Herzberg FiNKENSTEIN Convention between Russia and Prussia for the Maintenance of the Freedom of Commerce and Navigation of Neutral Nations, and Separate Articles, May 19, 178P The justice and equity of principles which Her Majesty the Empress of all the Russias adopted and acknowledged before Europe by her declaration of February 28, 1780, transmitted to all the belligerent Powers, have determined His Majesty the King of Prussia to take part as directly as possible in the glorious system of neutrality which has resulted therefrom, with the universal commendation of all the nations, not only by acknowledging these principles which are founded on justice and the law of nations, but also by acceding thereto and by guaranteeing them by a formal act. This determination of His Prus- sian Majesty meeting entirely with the desire of Her Imperial Majesty ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 245. Ratifications exchanged at St. Petersburg, June IS, 1781. 114 THE ARMED NEUTRALITY OF 1780 AND 1800 of all the Russias to give them a stable and solid basis by having them solemnly recognized by all the Powers as the only principles capable of establishing security of commerce and of navigation for neutral nations in general, Their Majesties have seen fit with one accord to enter into negotiations regarding a subject in which they are both equally interested, in so far as it can work to the welfare and advantage of their respective subjects, and to this end they have chosen, appointed, and authorized, to wit: His Majesty the King of Prussia, the Count von .Goertz, his Minister of State, and his Minister Extraordinary at the Imperial Court of Russia; and Her Imperial Majesty of all the Russias, Nikita Count Panin, her Privy Councilor, Senator, Chamber- lain, and Chevalier of the Orders of St. Andrew, of St. Alexander Newsky, and of St. Anne ; John Count d'Ostermann, her Vice Chancel- lor, Privy Councilor, and Chevalier of tHe Orders of St. Alexander Newsky and of St. Anne; Alexander de Besborodka, Major General of her Armies and Colonel commanding the Kiovia Regiment of Militia of Little Russia; and Pierre de Bacounin, her Councilor of State, Member of the Department of Foreign Afifairs, and Chevalier of the Order of St. Anne; who having exchanged their full powers, found to be in good and due form, have- agreed upon the following articles : Article 1 Their Majesties being sincerely resolved to maintain relations of friendship and of the most perfect harmony with the Powers now at war, and to continue to observe the strictest and the most scrupulous neutrality, declare their desire to see to the most rigorous execution of the prohibition of commerce in contraband by their subjects, with any of the Powers now at war or which may hereafter enter into the war. Article 2 To avoid any ambiguity and any misunderstanding regarding what is to be considered contraband, Her Majesty the Empress oi all the Russias has declared that she recognizes as such only the goods in- cluded under this head in Articles 10 and 11 of her treaty of commerce with Great Britain, whose obligations, which are founded entirely on the natural law, she has extended to the Crowns of France and Spain, which countries have not heretofore bound themselves with her Empire by any engagement relating purely to commerce. Since there likewise OFFICIAL DOCUMENTS 115 exists no engagements of this nature between His Prussian Majesty and the Powers now at war, he declares for his part, that, in this respect, he also desires to bind himself with them by the obligations of the aforesaid treaty of commerce between Russia and Great Britain, with specific reference to Articles 10 and 11 of that treaty. Article 3 Contraband determined and excluded from commerce, in conform- ity with Articles 10 and 11 of the aforesaid treaty concluded between Russia and' Great Britain on June 20, 1766, His Majesty the King of Prussia and Her Imperial Majesty of all the Russias understand and desire that all other trade be and remain absolutely free on the basis of the general principles of the natural law, which Her Majesty the Empress has solemnly demanded, and of which freedom of commerce and of navigation, as well as the rights of neutral peoples, is a direct consequence ; and in order that they may not depend upon an arbitrary interpretation, suggested by isolated and temporary interests. Her Imperial Majesty of all the Russias has adopted and established as a basis the four following points : (1) That every vessel may navigate freely from port to port and along the coasts of the nations at war. (2) That effects belonging to the subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contraband. (3) That to determine what constitutes a blockaded port, such desig- nation shall apply only to a port where the attacking Power has dis- posed its vessels sufKciently near in such a way as to render access thereto dangerous. (4) That neutral vessels may be stopped only for just cause and for acts that are perfectly evident; that their cases shall be decided without delay; that the procedure shall always be uniform, prompt. and legal, and that in every instance, besides the indemnities allowed to those which have suffered loss without having been at fault, com- plete satisfaction shall be given for the insult to the flag. His Majesty the King of Prussia accedes to these principles, adopts them also, and guarantees them in the most positive manner, binding himself to uphold them and demand their observance whenever the interests of the commerce and navigation of the subjects of the two high contracting Parties may so require. 116 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 4 In return for this accession Her Majesty the Empress of all the Russias will continue to protect the commerce and navigation of the Prussians with her fleets, as she has already agreed to do at the request of His Majesty the King of Prussia, having had orders sent to all the commanding officers of her squadrons to protect and defend against all insults and molestation the merchant ships of Russia, which happen to be in their course, as being the vessels of a friendly and allied Power that strictly observes neutrality, it being understood, however, that the aforesaid vessels shall not be used for any illicit commerce, or for any purpose that is contrary to the rules of the strictest and most scrupulous neutrality. Article 5 If it should happen, in spite of the greatest care on the part of the two contracting Powers for the observance by them of the most complete neutrality, that the merchant vessels of His Majesty the King of Prussia and of Her Imperial Majesty of all the Russias should be insulted, pillaged, or taken by the war-ships or private ship-owners of any of the Powers at war, then the Minister of the injured party at the Court, whose war-ships or private ship-owners shall have com- mitted such acts, shall make representations, shall make claim for the captured merchant vessel, and shall insist upon suitable indemnities, never losing sight of reparation for the insult to the flag. The Minister of the other contracting Party shall join with him and support his complaint in the most energetic and efficacious manner, and they will thus act with one accord. If justice should be refused", or if it should be postponed from time to time, then Their Majesties shall employ reprisals the Power so refusing and they shall continually consult with each other as to the most appropriate method for carrying out such reprisals. ■ -, - Article 6 If it should happen that either of the two contracting Powers or both of them, because of or in contempt of the present act, or for any other cause relating thereto, should be disturbed, molested, or attacked, it has been likewise agreed that the two Powers shall make common cause for their mutual defense, and shall work and act in OFFICIAL DOCUMENTS 117 concert in order to secure entire and full satisfaction, both for the insult to their flag and for the losses caused to their subjects. Article 7 The present act shall have no retroactive effect, and therefore no action shall be taken with respect to differences that ha^e arisen before its conclusion, unless it is a question of continuous acts of violence, tending to establish an oppressive system for all the neutral countries of Europe in general. Article 8 All the stipulations set forth in the present act must be regarded as permanent and as constituting the law in the matter of commerce and of navigation, and whenever there is occasion to determine the rights of neutral nations. Article 9 The principle aim and object of this act being to ensure general freedom of commerce and of navigation. His Prussian Majesty and Her Imperial Majesty of all the Russias agree and engage in advance to allow other neutral Powers to accede hereto, which by adopting the principles herein contained shall share its obligations as well as its advantages. Article 10 In order that the Powers at war may not allege their ignorance of the engagements undertaken by Their said Majesties, they shall com- municate in a friendly way to the said Powers these engagements, which are in nowise hostile to them nor to the detriment of any one of them, but aim solely to ensure security of commerce and of naviga- tion to their respective subjects. Article 11 The present act shall be ratified by the two contracting Parties, and the ratifications thereof shall be exchanged within six weeks from the day of the signing thereof, or sooner if possible. lis THE ARMED NEUTRALITY OF 1780 AND 1800 In faith whereof we, the plenipotentiaries, by virtue of our full powers have signed and have hereto affixed the seals of our arms. Done at St. Petersburg, May 8, 1781.^ [L.S.] E. Count von Goertz [L.S.] C. N. Panin [L.S.] C. John d'Ostermann [L.S.] Alexander de Besborodka [L.S.] Pierre Bacounin Sei'arate Articles Article 1 As His Majesty the King of Prussia and Her Majesty the Empress of all the Russias are equally interested in preserving the security and tranquillity of the Baltic Sea, and in protecting it from the dis- turbances of war and privateering, a system the more just and natural because the Powers whose States border thereon enjoy the most pro- found peace. They have mutually agreed to maintain that it is a closed sea, incontestably such by its geographical situation, in which all nations must and may navigate in peace and enjoy all the advan- tages of perfect tranquillity, and to this end to adopt among themselves measures capable of guaranteeing this sea and its coasts against all hostilities, piracies, and acts of violence. Article 2 •Since stress of weather or some other circumstance may force Rus- sian vessels to take refuge in a Prussian port, either to pass the winter, to make repairs, or to escape the storm. His Majesty the King of Prussia engages to see to it that they are received and treated as ves- sels, of a friendly and closely allied Power, and that are furnished, at a just and reasonable price, with the necessary materials for repairs, with the provisions needed by the crew for its sustenance ; in a word, to see that all necessary arrangements are made in order that these vessels and their crews may be treated and cared for in the most friendly manner. Article 3 At the more or less remote time when peace shall be restored between the belligerent Powers, His Majesty the King of Prussia and Her iMay 19, 1781, new style. OFFICIAL DOCUMENTS 119 Majesty the Empress of all the Russias shall use their best efforts with the maritime powers in general to bring about the universal acceptance and recognition in all naval wars, which may arise hereafter, of the system of neutrality and the principles established in the present act, forming the basis of a universal maritime code. Article 4 As soon as this act shall have been ratified and the exchange of ratifications shall have taken place, the high contracting Powers shall take care to comrriunicate it, with the exception of the separate articles, in good faith, conjointly and with one accord, through their Ministers accredited to foreig-n Courts, and specifically those Courts which are now at war. These separate articles shall be considered and regarded as forming a part of the act itself and shall have the same force and effect as though they had been inserted word for word in the said act, concluded the same day between the two high contracting Parties. They shall be ratified in the same way and ratifications thereof shall be exchanged at the same time. In faith whereof we, the plenipotentiaries, by virtue of our full powers, have signed them and have affixed thereto the seals of our arms. Done at St. Petersburg, May 8, 1781. [L.S.] Count von Goertz [L.S.] C. N. Panin [L.S.] C. Jean d'Osteemann [L.S.] Alexandre de Besborodka [L.S.] Pierre Bacounin Treaty between His Majesty the Emperor of the Romans and Her Majesty the Empress of Russia relative to Armed Neutrality, July 10, 178P As the result of the war which has just broken out between Great Britain on the one hand, and France and Spain on the other hand, the iTranslation. Italian text at Martens, Recueil de Traites, vol. 3, p. 252. 120 THE ARMED NEUTRALITY OF 1780 AND 1800 commerce and navigation of neutral Powers have suffered and are suffering considerable injury; in consequence, His Majesty the Em- peror of the Romans and Her Majesty the Empress of Russia, by reason of their assiduous efforts to procure with dignity and diligence the security and prosperity of their subjects and with due regard for the rights of nations in general, have deemed it necessary in the present condition of affairs to regulate their conduct in accordance with the said principles, the Empress of Russia by means of her declaration of February 28, 1780, addressed to all the belligerent Powers, exhibited to the eyes of all Europe the fundamental rules inferred from the primitive right of all the peoples which Her Majesty claims and adopts as bases of her conduct during the present war. This effort of Her Majesty directed to watch over the upholding of rights common to all nations having obtained the approval of all the neutral Powers, because it deals with the defense of their most essential interests, the point has been reached to define and establish for all present and future time a permanent and invariable system, in harmony with the preroga- tives, conditions and obligations of a strict neutrality; and His Majesty the King of Denmark and Norway, His Majesty the King of Sweden, the Republic of Holland and other most respectable Powers having approved this system, there has come into being the accord and unani- mity by which the above-mentioned Emperor of the Romans and the Empress of Russia have resolved further to strengthen and secure their firm and constant friendship and their mutual confidence, in con- formity with the interests of their realms and States, by means of a formal convention. To that end. Their Imperial Majesties have stipu- lated and concluded the following articles : Article 1 The above-mentioned Imperial Majesties are sincerely determined for ever to maintain the most steadfast and sincere friendship as most useful to the House of Austria nor less so to the Empire of Russia; to maintain reciprocal concord and union ; to maintain friendly relations with the Powers actually at war and to observe the strictest neu- trality, declaring at this time their readiness firmly to bring it about that the prohibition of the trade in articles of contraband with the States now engaged in hostilities and with those which may subse- quently be involved therein, shall be strictly observed by their respective subjects. OFFICIAL DOCUMENTS 121 Article 2 In order to remove any misunderstanding or equivocation with regard to the term contrabarKi, His Majesty the Emperor and Her Majesty the Empress of Russia declare that they will only recognize as articles of contraband those which are included as such in treaties existing between the above-mentioned Courts. Her Majesty the Em- press of Russia as a maritime Power conforms entirely in this to its treaty of commerce with Great Britain, and furthermore, extends the obligations of the same which are wholly based upon the natural law, to the Crowns of France and Spain which at the date of the present coilvention have no treaty of commerce with her empire. His Majesty the Emperor will act in like manner toward France and England by reason of the absence of any agreement determining any conditions upon this matter. Article 3 Having in this manner determined and defined what is to be under- stood as contraband in conformity to the treaties and convention.^, between the high contracting Parties and the belligerent Powers, and especially in the treaty stipulated between Russia and Great Britain of June 20, 1766,^ it is the intention of His Majesty the Emperor and of the Empress of Russia that all other articles of commerce be and remain free to their respective subjects. In their declarations addressed to the belligerent Powers, Their Majesties have already based them- selves upon the general principles of the natural law from which derive the freedom of commerce and of navigation as legitimate rights of neutral nations, and they have likewise resolved that all the other Courts which have approved the proposed armed neutrality, shall no more depend on arbitrary interpretation, prompted by partial and momentary interests. To that end, they have agreed upon the follow- ing: (1) That any vessel flying the Russian flag, or the Imperial and Tuscan flag, be permitted to navigate from one port to another, and along the coasts of the belligerent Powers. (2) That the goods belonging to the subjects of the above-mentioned belligerent Powers shall be free upon neutral vessels, that they may not be confiscated, nor be seized by force, excepting articles of contraband. iNot printed. 122 THE ARMED NEUTRALITY OF 1780 AND 1800 (3) That in order to determine what rule shall be observed relative to a blockaded port, a port shall only be regarded as such where enemy vessels have taken a permanent station. (4) Neutral vessels may not be stopped, except for just reasons and with evident proof, and adjudged without loss of time; legal actions shall be expedited and in uniform manner according to maritime law, and for any injury sustained without good cause, a claim shall be presented by concerted agreement on the part of Their Majesties, and besides demanding reparation for the injury done, full satisfaction shall be exacted for the insult done their flag. Article 4 In order to protect the general commerce of their subjects founded upon just and certain principles. Her Majesty the Empress of Russia has resolved to equip a proportionate number of vessels and frigates to act as escort to merchant vessels as may be required by the urgencies of commerce, and they may come to shore and remain at their pleasure in all the ports subject to the House of Austria, and especially in the ports of the Flanders. Article 5 In case the merchant ships of the contracting Parties should be on the sea without being escorted by an armed vessel, and hence, in need, could not obtain protection, the commander of war vessels of Her Majesty the Empress of the Russias, whenever the request is made, shall without distinction grant all necessary assistance, provided the vessel have not engaged in an illicit commerce, contrary to the laws of neutrality. Article 6 The present convention shall not be retroactive, and in consequence, it shall not apply to disputes which may have arisen before the con- clusion of the same, because the questions might not concern the hostilities still in course and which tend to oppress all the neutral nations. Article 7 If, notwithstanding the diligent and friendly solicitude of the two contracting Parties and the strictest observance of neutrality, Russian or Austrian merchant ships should suffer insults, pillaging or seizure OFFICIAL DOCUMENTS 123 by war vessels, or ship-owners of one of the belHgerent Powers, then the Minister of the offended party, together with the Minister of the confederated party shall address vigorous representations to the Court whose war vessels may have committed the attack, demand the release of the seized vessels, insist upon a proper satisfaction and attend to the dignity of the respective flag. The above-mentioned Minister of the other party shall support this recourse in the most efficacious and vigor- ous manner and if, from time to time, remedy to the inconvenience is refused or deferred. Their Majesties will in such case exercise the right of reprisal against the Power denying them execution of justice, and will immediately devise the most appropriate means to execute such reprisals. Article 8 If the one or the other of the two contracting Parties, or both at the same time, should be attacked as a result of this convention which is not intended to give offense to any one, or for any other reason whatever relating thereto should be troubled, molested or attacked, they have resolved to unite their efforts to defend themselves, namely. Her Majesty the Empress of all the Russias will put in operation her maritime forces in concert with the other Courts which have concurred in the treaty of armed neutrality, His Majesty the Emperor furnishing troops and money according to the urgency of the case, for the sole end of procuring a satisfactory reparation both for the insult shown their flag and for the losses occasioned to their subjects. Article 9 This convention is concluded and shall remain in force for the duration of the present war, and the obligations contracted by reason of the same shall serve as bases for all posterior treaties that may be entered into in the future, according to the events and on the occasion of new wars that might arise and upset the tranquillity of Europe. All else agreed upon herein shall be considered as permanent and invari- able both as to matters pertaining to merchantmen and to maritime questions and shall have force of law for the determination of the rights of neutral nations. Article 10 As it is the aim and object of the above-mentioned convention to safeguard the freedom of commerce and navigation. Their Majesties 124 THE ARMED NEUTRALITY OF 1780 AND 1800 the Emperor of the Romans and the Empress of all Russias have agreed to request all the Powers which until now have not done so to accede to the convention in whose advantages they may share, always and only on the ground of defense, and never of offense. Article 11 In Qfder that the Powers engaged in the war may not be ignorant of the force of the obligations contracted by the two Imperial Courts of Petersburg and Vienna, the high contracting Parties shall notify to them, in the most friendly manner, the measures adopted, measures which are the less hostile because their object is far from occasioning injury to anyone, tending solely to protect the commerce of the respec- tive realms and peoples. The present convention shall be ratified by the two contracting Parties, and the ratifications thereof exchanged in good and due form within a period of ten weeks, in faith of which, etc. Vienna, July lo, rySi. Act of Accession of His Majesty the Emperor of the Romans to the Maritime Association, October 9, 178P Joseph II, by the grace of God Emperor of the Romans, ever August, King of Germany and of Jerusalem, of Hungary and Bohemia, of Dalmatia, Croatia, Slavonia and Galicia, and of Lodomoria, Archduke of Austria, Duke of Burgundy and of Lorraine, Grand Duke of Tus- cany, Grand Prince of Transylvania, Duke of Milan, of Mantua, of Parma, and Count of Hapsburg, of Flanders, of Tyrol, etc., etc., etc. Having been amicably invited by Her Majesty the Empress of all the Russias to join with her in the consolidation of the principles of neutrality on the sea, looking to the maintenance of the freedom of maritime commerce and of the navigation of neutral Powers, which she has set forth in her declaration of February 28, 1780, transmitted in her name to the belligerent Powers, which principles are in substance : ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 257. OFFICIAL DOCUMENTS 125 That neutral vessels may navigate freely from port to . port and along the coasts of the nations at war. That efifects belonging to the subjects of the Powers at war shall be free on board neutral vessels, with the exception of contraband goods. That nothing shall be considered contraband except the goods enumerated in Articles 10 and 11 of the treaty of commerce concluded between Russia and Great Britain on June 20, 1766. That to determine what constitutes a blockaded port, none shall be deemed such except a port where the attacking Power shall dispose his vessels sufficiently near and in such a way as to render access thereto clearly dangerous. Finally, that these principles shall serve as the rule in proceedings and judgments as to the legality of prizes. And Her said Imperial Majesty of all the Russias having proposed to us to this end that we manifest by a formal act of accession, not only our complete adhesion to these same principles, but also our immediate cooperation in measures to ensure their execution, which we, on our part, shall adopt by contracting mutually wTth Her said Majesty the following engagements and stipulations, to wit: (1) That the strictest neutrality shall be observed by both, that the prohibitions against commerce in contraband on the part of their respective subjects v^^ith any one of the Powers now at war, or who may hereafter enter the war, shall be most rigorously enforced. (2) That if, in spite of all the care exercised to this end, the merchant ships of either of the two Powers should be taken or insulted by any of the vessels of the belligerent Powers, the complaints of the injured Power shall be supported in the most effectual manner by the other, and if justice should be refused upon these complaints, they shall continue to take counsel with each other as to the method most likely to secure it through just reprisals. (3) That if it should happen that, either of the two Powers or both of them, as a result of or in contempt of the present agreement, should be disturbed, molested, or attacked, they would then make common cause for their mutual defense and would work in concert to secure full and complete satisfaction, both for the insult to their flag and for the losses caused tp their subjects. (4) That these stipulations shall be considered by both as permanent and as being the rule whenever there may be occasion to pass upon the rights of neutrality. 126 THE ARMED NEUTRALITY OF 1780 AND 1800 (5) That the two Powers shall communicate in a friendly way their present mutual agreement to all the Powers that are now at war. -Since it is our wish, because of the sincere friendship which happily unites us with Her Majesty the Empress of all the Russias, as well as for the welfare of Europe in general and of our countries and subjects in particular, to contribute our share to the execution of views, principles, and measures, which are as salutary as they are m accord with the clearest conceptions of the law of nations, have resolved to accede thereto, and we accede formally by virtue of the present act, promising and binding ourselves, just as Her Majesty the Empress of all the Russias binds herself with respect to us, to observe, to execute and to guarantee all the points and stipulations aforesaid. In faith whereof we have signed the present act with our own hand and have affixed thereto our seal. Given at Vienna, October 9, 1781. [L.S.] JOSEPH Kaunitz Rietberg Ant. Spielmann Act of Her Imperial Majesty of Russia accepting the Accession of the Emperor of the Romans, October 19, 178P We, Catherine II, by the grace of God Empress and Autocrat of all the Russias, of Moscovy, Kiovia, Wladimiria, Novgorod, Czarina ol Casan, Czarina of Astrakhan, Czarina of Siberia, Lady of Plescau, and Grand Duchess of Smolensk, Duchess of Estonia, of Livonia, Carelia, Twer, Ingoria, Parmia, Wiatka, Bolgaria, and others. Lady and Grand Duchess of Lower Novgorod, of Czernigovia, Kasan, Rostor, laroslaw, Belo, Oseria, Udoria, Obdoria, Condenia, Ruler of all the region of the North, Lady of Iveria, and Hereditary Princess and Sovereign of the Czars of Cartalinia and Georgia, as well as of Cabardinia, of the Princes of Czircassia, of Gorsky, and others : Having amicably invited His Majesty the Emperor of the Romans, King of Hungary and of Bohemia, to cooperate with us in consolidating the principles of neutral- iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 260. The act of accession was exchanged for the act of acceptance on October 19th by the respective plenipotentiaries. OFFICIAL DOCUMENTS 127 ity on the seas, tending to the mamtenance of freedom of the maritime commerce and the navigation of neutral Powers, as set forth by us in our declaration of February 28, 1780, delivered in our behalf to the belHgerent Powers, which principles state in substance : That neutral vessels may navigate freely from port to port and along the coasts* of the nations at war. That effects belonging to subjects of the Powers at war shall be free on board neutral vessels, with the exception of contraband goods. That ■ nothing shall be considered as contraband except the goods specified in Articles 10 and 11 of the treaty of commerce concluded between Russia and Great Britain on June 20, 1766. That to determine what constitutes a blockaded port, none shall be considered such except a port where the attacking Power shall have disposed its vessels sufficiently near as to render access thereto dangerous. Finally, that these principles shall be regarded as the rule in pro- ceedings and judgments as to the legality of prizes. And His said Imperial and Royal Apostolic Majesty having con- sented, for this purpose, to manifest by a formal act of accession, not only his complete adhesion to the said principles, but also his immediate cooperation in the measures to ensure their execution, which we shall adopt on our part, mutually contracting with His said Imperial and_ Royal Apostolic Majesty the following engagements and stipulations, to wit: (1) That both parties shall continue to observe the strictest neutral- ity and shall see to the rigorous execution of the prohibitions against commerce in contraband on the part of their respective subjects witli any of the Powers already at war and that may hereafter enter therein. (2) That if in spite of the care exercised to this end merchant ships of either of the two Powers should be taken or insulted by any vessels of the belligerent Powers, the complaints of the injured Power shall be supported in the most effectual manner by the other, and if justice is refused on these complaints, they shall consult with each other immediately as to the best method of securing justice through just reprisals. (3) That if either or both of the two Powers, as the result of or in contempt of the present agreement, should be disturbed, molested, or attacked, they shall then make common cause for their mutual defense, and shall work in concert to secure full and complete satis- 128 THE ARMED NEUTRALITY OF 1780 AND 1800 faction, both for the insult to their flag and for the losses suffered by their subjects. (4) That these stipulations shall be considered by both sides as permanent and as constituting the rule whenever there is occasion to pass upon the rights of neutrality. (5) That the two Powers shall communicate in a friendly way their present mutual agreement to all the Powers now at war. As a result of the sincere friendship that happily unites us with His Majesty the Emperor, as well as for the welfare of Europe in general, and of our countries and subjects in particular, we formally accept by virtue of the present act the accession of His Majesty the Emperor of the Romans, King of Hungary and of Bohemia, to the views, principles and measures, as salutary as they are in accord with the most self-evident conceptions of the law of nations, promising and solemnly binding ourself, just as His Majesty the Emperor binds himself with us, to observe, to execute, and to guarantee all the points and stipulations aforesaid. In faith whereof we have signed the present act and have hereto affixed our seal. Given at St. Petersburg, October 19, 1781, and the twentieth year of our reign. [L.S.] CATHERINE Count John d'Ostermann Prussian Declaration and Ordinance concerning Navigation, No-' vember 3, 1781^ His Royal Majesty the King of Prussia has indeed, by his first thorough-going declaration of April 30 of the present year already sufficiently acquainted every one with the fact that during the present war His Majesty intends to have a strict neutrality observed and navi- gation of his subjects so conducted that in availing themselves of their natural freedom, navigation may not be misused to such injury of the belligerent Powers as would warrant the latter, for good reasons, to ^Translation. German text at Martens, Recueil de Traites, vol. 3, p. 290. OFFICIAL DOCUMENTS 129 complain. As it is, however, being said publicly and in some localities complaint is being made, that foreign ships, even ships belonging to the belligerent nations make use of the royal flag, and under its protection carry on an illicit trade,, His Royal Majesty declares solemnly, in con- sequence, that the use of his flag has been granted to no one and that no passes will be issued to any one, except to his veritable and true subjects who as such are really residing in his lands and are owners of houses, property and possessions, and that accordingly, if other and foreign shippers, such as are not provided with Prussian passes, make use of the Prussian flag which His Majesty can not prevent on the open sea, His Majesty will not afford them either protection or assist- ance, but leave them to their own fate. His Royal Majesty can there- fore not be held responsible for such use of the Prussian flag, which His Majesty has not authorized and can not readily prevent; and His Majesty expects therefore from the sense of justice of the belligerent Powers that they will not hold the veritable Prussian sea-farers ac- countable for such use of his flag, nor make them suffer therefor. In view of the fact that safe navigation and observance of strict neutrality do not depend so much upon the flag as upon the genuine passes which sea-farers, to establish their identity, must secure from their national authorities, therefore, to obviate any and every possible misuse. His Royal Majesty directs and commands herewith, earnestly and strictly, all his subjects who carry on navigation and maritime trade, that, if they intend to send forth ships and ship cargoes to distant seas, lakes, coasts and regions of the earth, they no longer shall, as customarj^ hitherto, apply for passes, to magistrates or sub^ ordinate boards, but at Berlin, to the royal Department for Foreign Affairs where they shall be supplied with passes under the royal seal, provided that they have in advance secured the customary bills of lading and statements regarding the ship's cargo, together with de- pendable proof showing that the ship out-fitters and owners all of whose names must be stated specifically, are veritable and real royal Prussian subjects, authenticated by attestations from the magistrates and war and domain boards of each province, and thus have qualified themselves to receive a royal passport. From this ordinance remain excluded those Prussian shippers navigating in the Baltic Sea and not outside the Oere-sound and the Great and Lesser Belt; to save time, these navigators may secure passes from the hitherto customary places, and those who engage in short trips in the North Sea from the 130 THE ARMED NEUTRALITY OF 1780 AND 1800 ports of East Friesland, to the ports of Great Britain and the United Netherlands, and for want of time and because of the great distance and inconsiderable cargoes can not conveniently secure passes from Berlin, may as hitherto apply for and receive passes from the magis- trate of the city of Emden and from the royal war and domain boards of the principahty of East Friesland under the proper supervision of the latter. As this ordinance is made known for the information and observ- ance of all royal Prussian subjects, in all other respects, the first royal declaration of April 30 is to be observed and is hereby renewed and confirmed, so that both royal ordinances shall serve as prescrip- tion and line of conduct to the royal subjects who engage in naviga- tion and maritime commerce. Given at Berhn, November 3, 1781. By special order of His Royal Majesty. FiNKENSTEIN ' E. F. V. HteRZBERG Detailed Elucidation of the Prussian Ordinances of April 30 and Novernber 3, 1781, concerning Commerce and Navigation, De- cember 8, 1781^ Through His Royal Majesty's ordinances of April 30 and Novem- ber 3 of this year, the royal subjects have already been advised in what manner, for their greater security, they should organize their navigation and maritime commerce ; in view of the fact, however, that certain doubts still exist and certain questions have arisen in regard thereto, therefore, in order to remove these doubts and dispose of these questions, in the name and on the part of His Royal Majesty, the following is additionally established, ordered and published for the guidance of royal Prussian subjects, engaging in navigation and maritime commerce : Article 1 It is self-evident that, since Prussian ships which put to sea before the issuance of the ordinance of November 3, could not have pro- iTrinslation. German text at Martens, Recueil de Traites, vol. 3, p. 293. OFFICIAL DOCUMENTS 131 vided themselves with the court passes prescribed therein by the royal Ministry for Foreign Affairs, the lack of such passes can not accrue to their disadvantage in any courts of justice nor in any other places, and that the hitherto customary passes with which they put to sea must retain their force and validity and ensure those ships up to the time of their return to Prussian ports. In order, however, still further to obviate all difficulties, it is hereby established, that the necessity of securing court passes from Berlin direct, shall go in force, beginning only with January 1, 1782, so that every one may have sufficient time to procure such passes. Article 2 It remains established that small ships not carrying more than 100 tons burthen, as well as such as navigate only in the Baltic and North Sea, and not outside of the channel separating France and England, need not secure their passes from Berlin if they do not find it con- venient to do so, but at their pleasure as hitherto, in order to save time, from the admiralties and war and domain boards of each prov- ince, as well as from the magistrates of the cities ; and to that end. the said boards are hereby strictly exhorted, to exercise the greatest care, to prevent all misuse, and in strict compliance with the royal ordinances, that passes shall, in consequence, be issued to none but veritable and real royal subjects. By the declaration of November 3, it is solely his Royal Majesty's fatherly intention to procure the greater security through the maritime passes to be issued through His Ministry of Foreign Affairs which is best acquainted with the general state of affairs, to those Prussian ships which sail beyond the channel into the great ocean and engage in navigation and maritime commerce in those distant seas, countries and coasts, and to prevent, as far as possible, prejudicial incidents. Article 3 As the skippers, before their ships have taken their full cargo on board, can not properly send to Berlin complete bills of lading of their cargoes, therefore, those requiring direct royal court passes, shall not be required to procure more than general certificates and vouchers from the admiralties, boards and magistrates regarding the ownership of the vessel, and in case the pass is also to indicate the cargo of the ship, then the quality of the cargo of which it consists, all of which will suffice to form judgment whether the cargo is free 132 THE ARMED NEUTRALITY OF 1780 AND 1800 and unprohibited, and whether thereupon the court may issue passes ; on the other hand, the exact, specific and complete bills of lading and attestations regarding ship cargoes and , the quantity . of each article may be procured and solemnized in the manner hitherto customary, only in the place where the freight is taken on board, or in the same province, from the admiralties, boards and magistrates. Article 4 To stimulate national commerce, the royal Prussian subjects have been advised by the ordinance of April 30, as far as possible, to carry on their navigation and maritime commerce for their own account and with their own merchandise, and in the ordinance of November 3 it is stated that to obtain the court passes, the required attestations should be provided, and that the ship out-fitters and the ov/ners of the ships and cargoes should be royal Prussian subjects. Since, how- ever, the former was mere advice, and the latter was required for the purpose of greater caution, royal Prussian subjects, who are provided with other proper maritime passes, are always free and unhindered, in virtue of the declaration referred to as of April 30, to carry mer- chandise and goods of foreign and even of the belligerent nations which according to the rights and usages of the peoples and of the second article of the declaration of April 30, are permitted and un- prohibited, to regions and places not besieged or closely blockaded, and in consequence, according to the principles accepted and published by His Royal Majesty and his high authorities, royal Prussian sub- jects will not in such cases fail of His Majesty's protection and assist- ance, all of which, in order to remove all misinterpretation of the ordinance of November 3, is hereby declared. Article 5 The commanders and officials of Prussian ships when landing in ports and places where royal consuls reside, shall submit their mari- time passes to the latter and have it certified by them that the ships are still possessed of such passes as were issued to them. Article 6 The said commanders will do well to have with them on board ship the royal declarations and ordinances of April 30 and November 3 OFFICIAL DOCUMENTS 133 together with the present explanatory ordinance and their passes, on the one hand, to be guided thereby, and on the other, if necessary and serviceable, to present their orders and thus be able to prove their identity. This ordinance and declaration, as well as the declarations of April 30 and November 3 which are renewed and at the same time interpreted by this present one serves especially as guidance for the royal Prussian subjects who engage in navigation and maritime com- merce. If under this declaration and ordinance they should neverthe- less commit some error and not be provided with the required passes, the commanders of the armed ships of the belligerent nations shall not be entitled either to stop or capture them on that account, provided they have not acted contrary to the laws of neutrality and of nations accepted by His Majesy, but shall be answerable for such conduct to His Royal Majesty alone. Given at Berlin, December 8, 1781. By special command of His Royal Majesty. E. F. V. Herzberg FiNKENSTEIN Convention between Russia and Portugal for the Maintenance of the Freedom of Neutral Navigation and Commerce, July 13, 1782^ Her Imperial Majesty of all the Russias having invited Her Majesty the Queen of Portugal to cooperate with her in the consolidation of the principles of neutrality on the sea and in the maintenance of freedom of the maritime commerce and the navigation of neutral Powers, in conformity with her declaration of February 28, 1780, transmitted in her name to the belligerent Powers ; the Queen, because of the sincere friendship uniting Her Imperial Majesty to Her Most Faithful Majesty, as well as for the interest of Europe in general and of her countries and subjects in particular, wishes to contribute her share to the execution of the principles and measures, which are as salutary as they are in accord with the clearest conceptions of the law of nations. And therefore she has determined to appoint, in concert with Her Majesty the Queen of Portugal, plenipotentiaries, and to iTranslation. French text at Martens, Recueil de Traites, vol. 3, p. 263. 134 THE ARMED NEUTRALITY OF 1780 AND 1800 instruct them to conclude a convention, the spirit and content of which shall, in all respects, be in accord with these same intentions. To this end Their said Majesties have chosen, appointed, and author- ized. Her Imperial Majesty of all the Russias, John Count d'Oster- mann, her Vice Chancellor, Privy Councilor, Senator, and Chevalier of the Orders of St. Alexander Nevsky and of St. Anne; Alexander Bezborodko, Major General of her Armies, Member of the Department of Foreign AflFairs, and Colonel Commanding the Kiovia Regiment of Militia of Little Russia; and Pierre de Bacounin, her Councilor of State, Member of the Department of Foreign Affairs, and Chevalier of the Order of St. Anne: and Her Majesty the Queen of Portugal, Francis Joseph d'Horta-Machado of her Council, and her Minister Plenipotentiary at the Imperial Court of Russia; who after having exchanged their full powers, found to be in good and due form, have agreed on the following articles : Article 1 Her Majesty the Empress of all the Russias and Her Most Faithful Majesty, convinced of the solidity and the indisputable self-evidence of the principles set forth in the aforesaid declaration of February 28, 1780, which may be reduced in substance to the five following points: (1) That neutral vessels may navigate freely from port to port and along the coasts of the nations at war. (2) That effects and merchandise belonging to the subjects of the Powers at war shall be free on board neutral vessels, with the exception of contraband merchandise. (3) That nothing shall be considered as such except the goods enumerated in Articles 10 and 11 of the treaty of commerce concluded between Russia and Great Britain on June 20, 1776. (4) That to determine what constitutes a blockaded port, none shall be considered as such except a port where the attacking Power shall have disposed a proportionate number of vessels near enough to make access thereto dangerous. (5) Finally, that these principles may serve as the rule in proceed- ings and judgments as to the legality of prizes. Their Majesties declare that, not only do they fully adhere to the same principles, but that on all occasions they will cooperate effectually to maintain them in all their force and effect, and that they will see to their strict enforcement. OFFICIAL DOCUMENTS 135 Article 2 The present convention shall not, in any respect, impair the force of treaties now existing between the Court of Russia or of Portugal and any other Court of Europe whatsoever. But those treaties and the stipulations therein contained shall continue to have the same bind- ing force on both parties as in the past, and this convention can never invalidate them, still less infringe upon them. Article 3 The high contracting Powers shall continue to observe the strictest neutrality and shall see to the most scrupulous enforcement of the prohibitions against commerce in contraband on the part of *heir respective subjects with any one of the Powers now at war or which may hereafter enter into the war, including specifically under the head of contraband those goods which in the aforesaid Articles 10 and 11 of the treaty of commerce, concluded between Russia and Great Britain on June 20, 1766, are considered as such. ♦Article 4 If, in spite of the care exercised to this end, Russian or Portuguese merchant ships should be taken or insulted by any vessels of the bel- ligerent Powers, the complaints and representations of the injured Power shall be supported in the most effectual manner by the other. And if, contrary to all expectation, justice should be refused on these complaints, they shall continue to take counsel with each other as to the method that is best calculated to secure indemnification through just reprisals. Article 5 If either of the two Powers or both of them should, as a result of or in contempt of the present convention, be disturbed or molested, then they shall make common cause for their mutual defense, and shall work in concert in order to secure full and complete satisfaction, both for the insult to their flag and for the losses caused to their subjects. 136 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 6 The present stipulations shall be considered by both Parties as permanent and as constituting the rule whenever there is occasion to pass upon the rights of neutrality. Article 7 The Powers shall communicate in a friendly way their present mutual agreement to all the Powers that are now at war. Article 8 The present convention shall be ratified by the two contracting parties, and ratifications thereof shall be exchanged within four months from the day on which it is signed, or sooner if possible. , In faith whei'eof we, the plenipotentiaries, by virtue of our full powers, have signed and have hereto affixed the seals of our arms. Done at St. Petersburg, July 13, 1782. Count John d'Ostermann [L.S.] Alexander de Bezborodko [L.S.] Pierre de Bacounin [L.S.] Franc. Joseph d'Horta Machado [S.L.] Austrian Netherlands Ordinance concerning Maritime Regulations, December 12, 1782^ Joseph, etc., etc. The protection that we have constantly given to the commerce and navigation of our subjects in the Netherlands re- quiring that we have accurate knowledge of all the vessels that belong to our said subjects and that sail under the flag of this country, and that no abuse of this flag be tolerated nor of ship's registers pertaining thereto, we have, at the instance of our very dear and well-beloved sister, Maria Christina, Princess Royal of Hungary and Bohemia, Archduchess of Austria, etc., etc., and of our very dear and well- ^Translation. French text at Martens, Recueil de Traites, vol. 3, p. 297. OFFICIAL DOCUMENTS 137 beloved brother-in-law and cousin, Albert Casimir, Prince Royal of Poland and Lithuania, Duke of Saxe Teschen, etc., etc., our Lieutenant Governors and Captains Genaral of the Netherlands, etc., ordered and decreed, and hereby order and decree thje following articles : Article 1 j\ll of our subjects in the Netherlands who own sea-going vessels are required to furnish a declaration, signed by them, within six weeks after publication of the present ordinance, free of carrier's charge, to the Admiralty office at Ostend, Bruges, or Nieuport, respectively, ac- cording to the city where the vessels in question procured their ship's registers, and in the case of vessels whose registers were obtained in other cities of this country, the declaration shall be made to the office at Ostend. These declarations must contain (1) the name of the vessel, (2) its character and capacity in nautical tons, (3) whether it was built in this country or in a foreign country, and in the latter case indicate, so far as possible, in what country it was built, where it was purchased, and furnish evidence of the purchase and present ownership of the vessel, (4) the name of the captain commanding it, (5) in what port or waters its owners know or presume it to be now, (6) the date and place where the ship's register was procured with which the vessel is furnished ; all this under penalty of a fine of 200 florins for every vessel whose declaration shall not have been made within the prescribed time. Article 2 With regard to vessels which our subjects shall acquire after the publication of the present ordinance, they shall be required, before these vessels may put to sea, to procure registers in the usual form, which must be certified at one of the Admiralty offices, at Ostend, Bruges, or Nieuport, respectively, under penalty of invalidity. The owners shall at the same time deliver a separate declaration, containing (1) the name of the vessel, (2) its character and tonnage, (3) whether it was built in this country or in a foreign country, indicating, in the latter case, in what country it was built, where it was purchased, pro- ducing evidence of the purchase, (4) the name of the captain who is to command the vessel, (5) in what port it is at present; and the certificate shall state that the present article has been complied with-, all under the same penalty decreed in the preceding article. 138 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 3 The owners of vessels who shall sell or transfer, or have other persons sell or transfer, vessels belonging to them, must, within fifteen days at the outside, give a declaration thereof to one of the offices of the Admiralty, at Ostend, Bruges, or Nieuport, respectively, according to the city where the ship's registers may have been delivered, and to the Admiralty office at Ostend, if the registers were furnished in any other city of this country. They must return to the Admiralty office the registers and other papers that they shall receive from the magis- trates for the vessels sold or transferred ; which return must be made at the same time as the declaration, if the sale or transfer is made in the ports or places of this country, and within one month, or other period to be determined by the Admiralty officials, if the sale is made in foreign ports, under penalty of confiscation of 'the value of the vessels and 4,000 florins fine, one-third of the amount confiscated and of the fine to go to the informer. Article 4 Those who shall be convicted of having lent their name to conceal or disguise foreign ownership of a vessel, in whole or in part, by obtaining registry in this country, or those who shall have yielded, lent, or allowed the use of their registers for other vessels than that for which the register was originally furnished, those who shall have altered or changed in any manner whatsoever their registers, those who, navigating under the flag of this country, shall at the same time be supplied with and make use of a foreign register, or who shal,l make use of foreign passes, passports, or other papers for their vessel, shall for each offense be liable to a fine of 6,000 florins, as well as every one of our subjects who shall have cooperated or participated therein ; and one-third of this fine shall be paid to the informer. Cases of this character previous to the publication of this ordinance shall remain subject to the usual penalties. We decree, etc. Given in our city of Brussels the 12th day of the month of December in the year of Grace 1782, the 12th of our reign in the Roman Empire, and the 3rd of our reign in Hungary and Bohemia. By the Emperor and King in Council. OFFICIAL DOCUMENTS 139 Act of February 21, 1783, by which His Majesty the King of the Two Sicilies accedes to the System of Armed Neutrality^ Her Imperial Majesty of all the Russias, inspired by a generous desire to consolidate the true principles of the right of neutrals on the sea, calculated to maintain the freedom of their navigation and mari- time commerce, as set forth in her declaration of February 28, 1780, transmitted to the Powers then at war, has observed with the greatest satisfaction how widely the successive adhesion of different Powers to the same principles has extended their effect. For this reason and because of her just confidence in the friendship of His Sicilian Majesty, she has determined to invite him likewise to strengthen by his co- operation in a work oT so great importance; and His said Majesty, recognizing this action to be a mark of friendship as well as a feeling of just confidence in him, in the belief that the said principles are entirely in accord with those which he, like his August Father, has constantly followed, ever since the restoration by him of the indepen- dent existence of the Monarchy of his Kingdoms, and such as they are clearly recognized in his treaties with Sweden in the year 1742, with Denmark in 1748, with the States-General of the United Provinces in 1753, the only treaties concluded since the period when the said Kingdoms ceased to belong to other sovereignties, has not hesitated to reply with eagerness. To this end Their Majesties have deemed it wise to conclude a formal act, in which the said principles shall be set forth, and have appointed as their plenipotentiaries, to wit: Her Imperial Majesty of all the Russias, John Count d'Ostermann, her Vice Chancellor, Privy Councilor, Senator and Chevalier of the Orders of St. Alexander Nevsky, of St. Wladimir of the First Class, and of St. Anne ; Alexander de Bezborodko, Major General of her Armies, Member of the College of Foreign Affairs, Colonel Commanding the Kiovia Regiment of Militia of Little Russia, Chevalier of the Order of St. Wladimir of the First Class; Pierre de Bacounin, her Councilor of State, Member of the College of Foreign Affairs, Chevalier of the Order of St. Wladimir of the Second Class and of the Order of St. Anne; and His Majesty the King of the Two Sicilies, Don Muzio Gaeta, Duke of St. Nicholas,, his Gentleman of the Chamber and his Minister Plenipotentiary at the Imperial Court of Russia; who, having exchanged their full powers, ^Translation. French text at Mjartens, Recueil de Traites, vol. 3, p. 267. . Ratifications exchanged at St. Petersburg, July 1, 1783. 140 THE ARMED NEUTRALITY OF 1780 AND 1800 found to be in good and due form, have agreed to the following articles : Article 1 Her Majesty the Empress of all the Russias and His Majesty the King of the Two Sicilies, convinced of the solidity and of the incon- testable self-evidence of the principles set forth in the aforesaid declara- tion of February 28, 1780, which may be reduced in substance to the five following points : (1) That neutral vessels may navigate freely from port to port and along the coasts of the nations at war. (2) That effects and merchandise belonging to the subjects of the Powers at war shall be free on board neutral vessels, with the exception of contraband of war. (3) That nothing shall be considered as such except the merchandise enumerated in Articles 10 and 11 of 'the treaty of commerce and navigation concluded between Russia and Great Britain on June 20, 1766. (4) That to determine what constitutes a blockaded port, none shall be considered such except a port where the attacking Power shall have disposed a proportionate number of vessels sufficiently near to make access thereto clearly dangerous. (5) Finally, that these principles, which shall serve as the rule in proceedings and judgments as to the legality of prizes, shall not impair the force of treaties now existing between Their Majesties and other Powers, but they shall give them additional force. Their said Majesties declare that, not only do they fully adhere to the same principles, but that on all occasions they will cooperate effectually to maintain them in their full force and effect, and will see to their most scrupulous execution. Article 2 In any war in which the high contracting Parties, observing absolute neutrality, shall not take part, they shall see to the strictest enforce- ment of the prohibition of commerce in contraband on the part oi their respective subjects with any one whatsoever of the Powers now at war, or which may hereafter enter into the war. OFFICIAL DOCUMENTS 141 Article 3 Contraband of war, in which commerce neutrals are forbidden to engage, shall be understood in accordance with the terms of the treaties existing between Russia and Great Britain concluded in 1766, as well as in accordance with the terms of the treaties in force between the Two Sicilies and Denmark, Sweden, and Holland. Article 4 If, in spite of all their care to this end, merchant vessels of either of the two Powers, should be taken or insulted by any vessels of the belligerent Powers, the complaints of the injured Power shall be sup- ported in the most effectual manner by the other ; and if justice should be refused on these complaints, they shall continue to take counsel with each other as to the method best calculated to secure for their subjects full indemnification. Article 5 If either of the two Powers or both of them, because of or in con- tempt of the present agreement, should be disturbed, molested, or attacked, they shall then make common cause for their mutual defense, and shall work in concert so as to secure full and complete satisfaction, both for the insult to their flag and for the losses caused to their subjects. Article 6 These stipulations shall be considered by both Parties as permanent and as constituting the rule whenever there is occasion to pass upon the rights of neutrals. Article 7 The two Powers shall communicate in a friendly ,way their present mutual agreement to all the European Powers in general. Article 8 The present act shall be ratified by the two contracting Parties, and ratifications thereof shall be exchanged within four months from the date of the signing thereof, or sooner if possible. 142 THE ARMED NEUTRALITY OF 1780 AND 1800 In faith whereof, we, the plenipotentiaries, by virtue of our full powers, have signed and affixed hereto the seals of our arms. Done at St. Petersburg, February 10, 1783.^ [L.S.] Count John d'Ostermann [L.S.] Alexander de Bezborodko [L.S.] Pierre DE Bacounin [L.S.] Muzio Gaeta Duke of St. Nicholas Letter from Mr. Merry, British Charge d' Affaires at the Court of Denmark to Count Bemstorff, Danish Secretary of State for Foreign Affairs, regarding the Right of Visitation at Sea^ Copenhagen, April lo, i8oo'. The importance which the British Government must necessarily attach to the event which took place in the month of December last in the vicinity of Gibralitair, between some frigates of the King and the frigate of His Danish Majesty named the Haufeneu, commanded by Captain Van Dockuni, and the orders which have been in conse- quence sent me by my Court relative to this affair, impose on me the painful duty of repeating to you in writing the complaint on this sub- ject, which I had the honor of representing to you by word of mouth, in the audience which you were so^ kind as to grant me for that pur- pose about three days ago. The facts upon which the question turns in this business are in themselves very simple, and I believe such as we are already agreed upon; that is to say, the English frigates met the Danish frigate upon the high sea escorting a convoy. The English commander, judging it proper to avail himself of the right of visiting this convoy, sent on board the Danish frigate to demand from the captain his destination. The latter having answered that he was then ^February 21, 1783, new style. ^Collection of State Papers, vol. 10, p. 22. In the differences which have arisen between Denmark and England on the subject of the right of visitation by sea, the details of the affair of the first Danish frigate taken by the English in the neighborhood of Gibraltar have never been officially published by the English Government. The above letter, in which these details are contained, is extracted from a French paper. OFFICIAL DOCUMENTS 143 going to Gibraltar ; the other replied, that if he was going tO' stop at Gibraltar he would not visit his convoy ; but in case he should not cast anchor in that port, that the visit would certainly take place. Captain Van Dockum then informed the officer who had come on board, that he would in such case make resistance. Upon this the Eng'lish cap- • tain made the signal to examine the convoy. The boat of the frigate, the Emerald, prepared to execute this order ; some musketry was fired down from the Danish frigate; and one of the English sailors was thereby severely wounded. This frigate also took possession of a boat of the English frigate, the Flora, and did not release it until after the English captain had made Captain Van Dockum understand, that, if he did not surrender it immediately, he should commence hostilities. The Danish frigate then repaired with its convoy to the Bay of Gibral- tar. There some discussions took place upon this subject between Lord Keith, admiral and commander of the naval forces of His Britan- nic Majesty in the Mediterranean, and Captain Van Dockum, whom Ix>rd Keith thought proper to consider as personally responsible, and guilty of the injury done to a subject of his King, thinking it impos- sible that this captain could be authorized to act in such a manner by the instructions of his Court. To clear up the business, the English adlniral sent an officer tO' (^aptain Van Dockum, praying that he would show him these instructions, and explain their nature. The latter re- fused to let the admiral see the instructions, alleging that he was for- bid to do so ; but he told the officer that they imported that he should not permit visitation of his convoy, and that in firing upon the King's boats he only fulfilled his orders. The captain himself afterwards made a like answer, and upon his word of honor, in conversation with Lord Keith, in presence of the Governor of Gibraltar; but he prom.ised at the same time to surrender himself before a judge, and to give notice of his appearance; and upon this promise he was told he might return on board. Upon his having entered his boat, he sent a letter to the admiral, in which he refused to give the notice required. These dis- cussions were terminated by a declaration which Jjyrd Keith made to Captain Van Dockum., that, "if he neglected to submit, and should thereby attempt to withdraw himself from justice, the affair should be represented to his Court." This, Count, is the statement of the facts which have occasioned the complaint which I am charged to lay before the Danish Govern- ment. I flatter myself that you will find it accurate, and conformable 144 THE ARMED NEUTRALITY OF 1780 AND 1800 to the correspondence between Lord Keith and Captain Van Dockum, in your possession, as you have done me the honor to infonn me. The right of visiting and examining merchant vessels on the high sea, of whatever nation they may be and whatever their cargoes or destinations, the British Government regards as the incontestable right of every belligerent nation; a right founded upon the law of nations, and which has been generally admitted and acknowledged. It follows of consequence, that the resistance made to this visitation by the com- mander of a ship of war belonging to a friendly Power, must neces- ^-a.rily be considered an act of hostility, such as he is persuaded could mot be enjoined by the commanders of ships of war of His D'anish Majesty by their instmctions. His Britannic Majesty has therefore no doubt of tlie displeasure which His Danish Majesty will feel on learning this violent and indefensible procedure of an officer in his service ; and the King is persuaded of the promptitude with which His Danish Majesty will make to His Majesty the formal disavowal and apology which he has so just a right to expect from him in the present case, with a reparation proportioned to the nature of the ofifense committed. I am specially charged. Count, to make of you a demand of this disavowal, apology, and reparation. , The confidence which I have in the acknowledged justice of His Danish Majesty, induces me to hope that this simple and friendly representation will suffice to obtain it with the promptiituide which so important a case requires ; but I ought not at the same time to con- ceal from you, that however great and sincere may be the desire of the King my master to maintain and cultivate the closest harmony and friendship with the Court of Denmark, nothing will induce His Majesty to depart from this ju.st demand. I have the honor to be, etc., (Signed) Ant. Merry OFFICIAL DOCUMENTS 145 Reply of Count BemstorfF to Letter of Mr. Merry, regarding the Right of Visitation at Sea, April 19, 1800^ The undersigned, Secretary of. State for Foreign Affairs, having laid before the King, his master, the representations which Mr. Merry did him the honor to address to him under date of the 10th instant, with regard to an encounter which took place in the month of Decem- ber last between a Danish frigate and certain English frigates, has just been authorized to make the following reply therto. In the first place, it should be observed that the version of the affair as set forth in Mr. Merry's note is not absolutely in accord with the account given by the commander of the King's frigate; and, although the difference between the reports of this affair bears upon minor points, we cari not refrain from calling attention tO' it, inasmuch as the account on which the British complaints are founded seem to rcompromise the honor and the good faith of Captain Van Dockum. According to this account, that officer is alleged to have given his promise to Lord Keith to appear personally before an English court, and to have broken his word from the moment he returned to his vessel, while it is stated in the report of the said Captain that he con- stantly and positively declared, as' became him, "that, being vested with the command of one of the King's war-ships, he could be responsible for his conduct to his sovereign alone," The reports on both sides agree for the rest on the principal fact. The question involved is "whether the English frigates were in the right in attempting, or the commander of the Danish frigate in pre- venting visitation oi the convoy under the escort of the latter." Custom and treaties, it is true, have conferred upon the belligerent Powers the right to have their war-ships or privateers visit uncoai- ■\oyed neutral vessels. But since this right is not a natural but a purely conventional one, its effect can not, without injustice or law- lessness, be arbitrarily extended beyond what has been agreed upon or granted. But none of the independent maritime Powers of Europe has ever, so far as the undersigned is aware, recognized the right to visit neutral vessels under escort of one or more war-ships, and it is evident that they could not do so without degrading their flags and renouncing an essential part of their own rights. Far from acquiescing in this hitherto unknown pretension, the ma- ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 130. 146 THE ARMED NEUTRALITY OF 1780 AND 1800 jority of these Powers have, since there has been question of this al- leged right, deemed it their duty to set forth the opposite principle in their conventions relating to matters of this nature, as is evidenced by a great number of treaties concluded between the most important Courts of Europe. This dictinction made between convoyed [and unconvoyed] vessels i? as just as it is natural, for the former should not be placed in the same category as the latter. The visiting by privateers* or war-ships of belligerent Powers of un- convoyed neutral vessels is founded on the right to ascertain the flag to which they belong and to examine their papers. It is merely a ques- tion of determining whether they are neutral and whether their papers are in conformity with requirements. The papers of these vessels having been foimd to lie according to rule, no further search may legally be undertaken. Hence it is the authority of the Government in whose name these documents have been drawn up and issued that gives the belligerent Power the necessary assurance. But the neutral Government, by convoying with its war-ships the commercial vessels of its subjects, gives belligerent Powers a guaran- tee that is more authoritative and still more positive than is that fur- nished by the documents with which these vessels are furnished : and it 'Could not, without dishonor to itself, admit any doubts Oir suspicions on this point, for they would be as injurious to it as they would be unjust on the part of those who should entertain or manifest them. If the principle should be admitted that the convoy given by a sovereign did not guarantee the vessels of his subjects from search by foreign war-ships or privateers, it would follow that the most formidable squadron would not have the right to save the vessels en- trusted to its protection from search by the weakest privateer. But it can not be reasonably presumed that the linglish Government, which has always, and for the best of reasons, shown itself to be jealous of the honor O'f its flag, and which in the naval wars in which it has not taken part has vigorously maintained the rights oi neutrality, would, if the case arose, consider Itself bound to suffer such an affront; and the King has too great confidence in His Britannic Majesty's equity and integrity to harbor the suspicion that it can be his desire to arrogate to himself a right which, under similar circumstances, he would not recognize as belonging to any other independent Power. It would seem to be sufficient to apply to the act in question the OFFICIAL DOCUMENTS 147 necessary deduction from these considerations in order to demonstrate that the commander of the King's frigate, in resisting an act of vio- lence, which he had no reason to expect, onl)' did his duty, and' that it was the English frigates which committed an act in violation of the rights of a neutral soverign friendly to His Britannic Majesty. The King hesitated to make formal complaint, so long as he looked upon the affair as merely a miisnnderstanding that could be cleared up by friendly explanations on the part of the commanders of the re- spective naval forces kept by the two Governments in the Mediter- ranean; but finding himself, with great regret, disappointed in this liope, he must needs insist upon the reparation which is due him and which the justice and friendship of His Britannic Majesty would seem to assure to him. (Signed) C. Bernstorff Note from Count Wedel-Jarlsberg, Envoy Extraordinary of His Danish Majesty, to Lord Grenville, British Secretary of State for Foreign Affairs, relative to the Capture of the Frigate "Freya," London, July 29, 1800^ The undersigned, Envoy Extraordinary of His Danish Majesty, has the honor to bring to the attention of His Royal Majesty the follow- ing facts: On the 25th instant His Danish Majesty's frigate Freya, commanded by Captain Krabbe, which was convoying six vessels, was encountered at the entrance tO' the Channel by six English war-ships under the command of Captain Baker. An officer from one of these ships was sent on board the Freya, informed himself of its destination, etc., and returned with the customary information. But shortly after he came back with orders to visit the convoy. Permission to do so was refused him. In the meantime the other frigates approached, and one of them fired a shot at one of the vessels of the convoy, which was answered by a shot from the Danish frigate across the bows of the vessel that iTranslation. French text at Martens, Recueil de Traites, vol. 7, p. 133. 148 THE ARMED NEUTRALITY OF 1780 AND 1800 began the attack. The English commander's frigate came nearer and repeated his demand, which was refused by the Danish commander, who protested "that the convoy had not on board any article of con- traband," and declared "that, in conformity with his instructions, he would not allow any boat to approach the convoy." A boat was sent notwithstanding, and the Freya fired a shot to turn it back, but did not hit it. The English commander immediately fired a broadside; but it was not until the sight of two wounded men convinced him that ef- fective hostilities had been begun that he returned the broadside, re- pelled force with force, and continued the combat with the said flag-ship and three others, until he found himself obliged to yield to the superior strength of his assailants and to lower his flag after having lionorably defended and uii^held it to the bitter end. The English thereupon took possession of the Danish frigate, held Captain Krabbe prisoner aboard the flag-shipi, and brought him with the prize and convoy to the Dunes. ^ Thus in tlie midst of constant and secure peace between two friendly and allied nations there has occurred an unheard-of provocation, the enormity of which is sealed with the innocent blood of the subjects of both. The affair that has just taken place is a direct attack on the inde- pendence of Denmark, a violation of the most sacred rights O'f the sovereign, and an act of aggression so violent that it would give rise to the most serious consequences, if it could be presumed that the in- structions of the British Cjoivernment had authorized suich extreme action of a character so incompatible with the friendship existing be- tween the two Courts. But, in spite of the unfortunate impression created by the facts men- tioned, it is a great consolation to the undersigned to feel that the English officers merely overstepped their in.structions through over- eager and ill-advised zeal, and that therefore His Britannic Majesty will not hesitate, in accordance with his well-known sentiments, to show his great indignation over the act and to give His Damish Majesty the most complete satisfaction. It is under that resen^ation and while waiting for orders, from his Court on this subject that the undersigned confines himself now to a ministerial demand for the prompt restitution of the frigate Freya and its convoy, and reparation at the expense of the British Govern- ment for all damage resulting from the hostilities mentioned. ' OFFICIAL DOCUMENTS 149 His Excellency Lord Greiivillc, to whom the undersigned has the lienor to address this note, will certainly share his just resentment of the aforesaid unfortunate incident and his hopes that satisfacto;ry repa- ration for the offense may be made at once. The undersigned there- fore hastens to request most urgently that his Excellency use his good offices to this end, and with the utmost confidence in his Excellency's just and equitable point of view, he has the honor to reiterate the as- surance of his consideration and respect. f Signed) Wedel-Jarlsberg Reply of Lord Granville to Count Wedel-Jarlsberg, July 30, 1800, respecting the Capture of the Frigate "Freya"^ The . undersigned. His Majesty's principal Secretary of State for Foreign Affairs, has had the honor to lay before the King the note which he received yesterday from Count Wedel-Jarlsberg, Envoy Extraordinary and Minister Plenipotentiary from the King of Den- mark. It was with the greatest surprise and concern that His Majesty received the first accounts of the transaction to which that note re- lates. Studiously desiring to maintain alvrays with the Court of Copen- hagen those relations of friendship and alliance which had sO' long subsisted between Great Britain and Denmark, His Majesty has, dur- ing the whole course of his reign, given repeated proofs of these dis- positions, which he had flattered himself were reciprocally entertained by the Government of His Danish Majesty. ^\nd notwithstanding the expressions made use of in Count Wedel's note, His Majesty can not even yet persuade himself that it is really by the orders of the King of Denmark, that this state of harmony and peace lias been thus sud- denly disturbed, or that a Danish officer can have acted conformably to his instructions, in actually commencing hostilities against this coun- try by a wanton and miprovoted attack upon a British ship of war, bearing His Majesty's flag, and navigating the British seas. ^Collection of State Papers, vol. 10, p. 70. 150 THE ARMED NEUTRALITY OF 1780 AND 1800 The impressions which such an event has naturally excited in His Majesty's breast have received additional force from the perusal of a note, in which satisfaction and reparation are claimed as due to the aggressors from those who have sustained this insult and injury. His Majesty, allowing for the difficulty in which all neutral nations were placed by the unprecedented conduct and peculiar character of his enemy, has on many occasions, during the present war, forborne to assert his rights, and to claim from the Danish Government the impartial discharge of the duties of that neutrality which it professed a disposition to maintain. But the deliberate and open aggression which he has now sustained can not be passed over in a similar man- ner. The lives of his brave seamen have been sacrificed, the honor of his flag has been insulted, almost in sight of his own coasts; and these proceedings are supported by calling in question those indis- putable rights founded on the clearest principles oi the law of nations, from which His Majesty never can depart, and the temperate exercise of which is indispensably necessary to the maintenance of the dearest interests of his empire. The undersigned has, in all his reports to His Majesty, rendered full justice to the personal dispositions which he has uniformly fO'Und on the part of Count Wedel, to remove all grounds of misunderstanding between the two countries. He can not, therefore, now forbear to urge him to represent this matter tO' his Court in its true light, to do away with those false impressions, under which ( if at all) a conduct so in- jurious to His Majesty can have been authorized; and to- consult the interests of both countries, but especially those of Denmark, by bearing his testimony to tb.e dispositions with which His Majesty's Govern- ment is animated; and by recommending to his Court, with all that earnestness which the importance O'f the occasion both justifies and re- quires, that these dispositions may, in so critical a conjuncture, find an adequate return ; and that a speedy and satisfactory answer may be given to the demand which His Majesty has directed to be made in his name at Copenhagen, both of reparation for what is past, and of se- curity against the repetition of these outrages. In order to give the greater weight to His Majesty's representations on this subject, and to afford at the same time the means of such ex- planations respecting it, as may avert the necessity of those extremi- ties to which His Majesty looks with the greatest reluctance. His Majesty has charged Lord Whitworth with a special mission to the OFFICIAL DOCUMENTS 151 Court of Denmark^ and that minister will immediately sail for his destination. That Court can not but see in this determination a new proof of the King's desire to conciliate the preservation of peace with the main- tenance of the fundamental rights and interests of his empire. (Signed) Grenville July so. 1800. Reply of Count Wedel-Jarlsberg to Lord Grenville, London, August 2, 1800^ The undersigned, Envoy Extraordinary of His Danish Majesty, confines himself to acknowledging the ministerial note of Lord Gren- ville, dated the 30th ultimo, in reply to his of the 29th. He immediately informed his Court thereof, as well as of the mission with which Lord Whitworth is charged to Denmark. But pending the transfer to Copenhagen of the discussion of the hostilities connmitted, the undersigned hastens to repeat his urgent de- mand with regard to the restitution of the frigate Freya, in such con- dition that it can continue its voyage, and with regard tO' its convoy. Since the British Government, by means oi superior forces, succeeded in making it impossible for His Danish Majesty's frigate to protect its convoy from the canying out of an act that is contested and in dis- pute, and since both the frigate and its convoy were brought intO' an English port, where the searching of the vessels was effected without revealing any contraband article in their innocent cargoes, the under- signed is pleased to believe that the British Government will, by its acts, give the Government of Denmark conciliatory assurance that it is far from desiring to aggravate the difference by a continuation of hostile action, and, by restoring the vessels mentioned, show that it treats them differently from those captured from the enemy. The undersigned begs Lord Grenville to be good enough to support his just demand with his good offices and to consider compliance ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 137. 152 THE ARMED NEUTRALITY OF 1780 AND 1800 therewith as paving the way for an explanation tl^t will wipe out the bad impression of the past and ensure the continuance O'f the har- mony which has been a source of such satisfaction and happiness to the sovereigns of the two nations.' (Signed) Wedel-Jarlsberg Reply of Count Bemstorff to Lord Whitworth, Copenhagen, August 16, 1800^ The King learned with as much regret as surprise of the incident which has caused the detention of his frigate, the Freya., and of the convoy that was under its protection. His Majesty, however, far from presuming that the attack on the security of a convoy sailing under the protection and safeguard of his flag could have been premeditated, or that so unequal and so unexpected a fight could have been the result of an order emanating from the British Government. He saw in this unfortunate encounter nothing more than the act of an over-zealous commander of an English squadron, who made unwarranted use of his superiority in strength over a foreign vessel which was sailing in waters along the coast of a country between which and Denmark there exists bonds of friendship and alliance and was therefore unprepared for a hostile surprise. But nothing can equal the astonishment of His Majesty in learning from the note which the undersigned had the honor of receiving from Lord Whitworth that the British Government, in refusing the satis- faction which is manifestly due, retorts with a demand against Den- mark, imputing to it without scruple an act of aggression, which is ■ disproved by a simple examination of the facts. It is indeed a confusion of the clearest conceptions and an inver- sion of the most natural and least equivocal sense of things and words to hold that lawful resistance, provoked by a gratuitous attack upon the rights and honor of an independent flag, should be considered an act of aggression, and of premeditated aggression. ^Translation. French text at Martens, Recueil dc Traites, vol. 7, p. 141. OFFICIAL DOCUMENTS 153 Demonstration is superfluous when facts speak for themselves ; and Denmaric does not fear to appeal in this matter to the judgment of all the impartial Powers of Europe. If it were possible to suppose that the King had any idea of attack- ing Great Britain or any, hostile intentions against that country, His Majesty would not hesitate openly to disavow it; but no such possi- bility exists, and the English Government itself, if it weighs the cir- cumstances calmly and without prejudice, could have no suspicion in this regard. But even supposing that the commander of the Danish frigate had overstepped the limits of his duty and that the English Government was thereby warranted in demanding satisfaction, it still clearly fol- lows from the nature of the case that this demand could not be made until after the frigate and its convoy had been released, Denmark clearly being, until that is done, the injured party, and consequently the only one who has grounds for complaint. It is this preliminary demand to release without delay the King's frigate and the convoy under its protection, which Lord Whitworth is requested to transmit to his Court and to support with his good ofifices. He will be good enough to add the assurance that the King will eagerly accept any proposition compatible with the honor of his flag and the dignity of his crown, which tends to maintain harmony between the two Courts, as this always has been and always will be one of the principal objects desired and sought by Denmark. The King does not deem it necessary to reiterate to His Britannic Majesty protestations of friendship on an occasion which has neither belied it nor placed it in doubt. Nor does His Majesty permit him- self to ask for evidence of the friendship of his august ally. He merely appeals to the equity of a virtuous and uptight sovereign, who surely does not believe that he will add to the glory of his reign or to the splendor of his power by an act of injustice toward him. The undersigned, who has long been prepossessed in favor of Lord Whitworth, is pleased to have confidence in his personal sentiments and trusts that he may succeed in winning the confidence of Lord Whitworth. ''Signed) C. Bernstoeff 154 THE ARMED NEUTRALITY OF 1780 AND 1800 Extract from the Reply of Lord Whitworth to Count Bernstorff^ August 21, i8oo. The English Minister supports the principles which he had estab- lished in his first note, and says, that if the principle be once ad- mitted, that a Danish frigate may legally guarantee from all search six merchant ships, it follows naturally that that same Poiwer, or any other Power whatever, may, by means of the smallest ship of war, extend the same protection to all the commerce of the enemy in all parts of the world ; it will only be necessary to find in the whole circle of the universe a single neutral State, however inconsiderable it may be, well disposed enough towards our enemies to lend them its flag, and to cover all their commerce without running the least risk; for when examination can ho longer take place, fraud fears no discovery. In the note which the Count de Bernstorff has just transmitted, the undersigned perceives with pain, that, far from wishing tO' satisfy the just demand of the King his master, the Danish Government still persists in supporting, not only the principle upon which it founds its aggression, but also the right of defending it by means of arms. In this state of things, the undersigned has no other alternative than to perform strictly his duty, by insisting anew on the satisfaction which the King his master requires, and by declaring to M. de Bernstorff, that, in spite of his sincere desire to Be the instrument of the recon- ciliation of the two Courts, he shall be obliged to leave Copenhagen with all the English mission in the space of a week, reckoning from the day of the signing of this note, unless, in the interval, the Danish Government shall adopt counsels more conformable to the interests of the two countries, and, above all, to those of Denmark, with whom His Majesty has constantly desired, and still desires, to live in terms of friendship and alliance. The undersigned, therefore, has the honor to repeat to the Count de Bernstorff, that he is enjoined to quit Copen- hagen with the King's mission in a week, unless a satisfactory reply be given before the expiration of that term. He requests the Count de Bernstorff to accept the assurances of his most distinguished consideration. ^Collection of State Papers, vol. 10, p. 95. OFFICIAL DOCUMENTS 155 Reply of Count Bemstorff to Lord Whitworth, Copenhagen, August 26, 1800' The undersigned, having laid before the King his master the note which Lord 'Whitworth did him the honor to hand him on the 21st instant, has just been authorized to make the following reply. His Majesty is extremely surprised to learn that Lord Whitworth attempts to base the continued detention of the frigate Freya and of its convoy on the principle that a neutral vessel which resists visita- tion by one or more armed vessels belonging to a belligerent Power renders itself, merely by this resistance, liable to confiscation. This principle, such as it is, quite generally though not universally recog- nized, applies only to unconvoyed merchant ships, which, not being considered as armed, can only expect security from the innocence of their voyage, the respect due their flag, and the genuineness of the documents with which they have been furnished by their Govern- ments. The extension of the application of this principle to resistance by a warship on behalf of vessels under its convoy, would be as arbitrary as it is novel, and absolutely contrary to the very nature of the prin- ciple mentioned. If the British Government considers that it has authorities or proofs in support of its contention, Denmark must ask that it state them more specifically, in order to meet them with the authorities and proofs that have always appeared to the Danish Government to be so decisively in favor of its stand, as to determine its opinion in this regard, without its ever having had to sacrifice its conviction to its individual interests. As to the general question, concerning the alleged right to visit neutral vessels under convoy, the undersigned must call attention to the contents of the note which he handed to Mr. Merry under date of April 19. If Lord Whitworth believes that he has destroyed the force of the arguments set forth in that note by his observation that by means of the right guaranteeing from visit merchant ships which are under the escort of a warship, the least powerful neutral State would be able with impunity to cover with its flag illicit commerce, the undersigned begs to remark that a Government which would degrade itself to the point of lending its flag to such an act of fraud would thereby place itself beyond the pale of neutrality and consequently justify the bellig- iTransIation. French text at Martens, Recueil de Traites, vol. 7. p. 145. 156 THE ARMED NEUTRALITY OF 1780 AND 1800 erent Power, to whose prejudice the said fraud had been committed, to take measures which, under ordinary circumstances, would not be permitted. The State that neglects its duties undoubtedly exposes itself to the risk of losing its rights ; but suspicion of base conduct would be as injurious to the Government which did not deserve it as it would be dishonoring to the Government which should advance such suspicion without grounds. Such a situation, however, could not exist between Denmark and Great Britain. The English Government are surely not ignorant of the fact that Danish officers in command of convoys are held personally responsible to see that the cargoes of the vessels belonging to these convoys do not contain articles prohibited by the rules of the law of nations or by treaties existing between Denmark and belligerent Powers ; and it is easy to see that it would be incom- parably more difficult to elude the vigilance of these officers than the search of those who should attempt to exercise on these vessels a right, which is as odious in principle as it is futile in its effect. This essential difference between the principles of the two Courts bringing into this discussion special difficulties, there would appear to- be a no more fitting way to remove them than to have recourse to the mediation of a third Power ; and the King hesitates the less to propose to Plis Britannic Majesty the mediation of the Emperor of Russia, since that monarch, the friend and ally of both sovereigns, will cer- tainly have nothing more at heart than to bring about their reconcilia- tion and to prevent an unfortunate misunderstanding. The King will entrust his interest with the utmost confidence to this mediation ; and His Majesty will eagerly adopt any proposals of His Majesty the Emperor of Russia tending to effect a settlement compatible with the- honor of the two Courts. The undersigned does not doubt that Lord Whitworth will see in this proposal fresh proof of the sincere moderation of the King and of his unalterable desire to keep the friendship of His Britannic Maj- esty. He begs him to be good enough to transmit it in this sense to his Court. The King would regret the more to see him depart, since His Majesty had regarded his mission as a pledge of the conciliatory in- tentions of the London Court and was pleased to believe that his per- sonal sentiments would help to expedite a settlement, for which His- Majesty has offered and still offers him the greatest facilities. The undersigned has the honor to beg Lord Whitworth to accept renewed assurances of his most distinguished consideration. (Signed) C. Bernstorff OFFICIAL DOCUMENTS I57 Reply of Lord Whitworth to Count Bemstorff^ August 2"/, 1800. Lord Whitworth requests the Count de Bernstorff to observe, that if he does not animadvert upon the arguments he has made use of upon this occasion, it is because he thinks he shall render a much more essential service to his Court, as well as to that of Copenhagen, by abstaining from all that might remove them from the object which both ought to have equally at heart. With respect to the mediation which the Count de Bernstorff proposes as the most proper means of doing away the difficulties of this discussion, the undersigned thinks he can reply with certainty, that, in spite of the apparent misunder- standing which may have existed between the two Courts, there is no sovereign in Europe to whom the King would refer himself, with respect to his dearest interests, with more confidence, than the Emperor of Russia; no one is more ready than the undersigned to do justice to the loyalty and zeal of that sovereign for the good cause. But he believes that, in a similar case, it would be useless to recur even to that intervention, however respectable it may be ; and that the Court of Denmark, introducing into the discussion the same frankness as the Court of l.^ndon, and the same desire of preventing speedily all objects of fatal misunderstanding, will find out the means of effecting this object without difficulty. Whitworth Declaration by which His Majesty the Emperor of Russia invited Sweden, Prussia and Denmark to conclude a Convention for the Reestablishment of the Rights of Neutrality, August 27, 1800^ Europe gave its approval to the measures that were taken by the majority of maritime Powers for the establishment, as a sacred pact, of the principles of a wise and impartial neutrality, when a naval war. ^Collection of State Papers, vol. 10, p. 97. ^Translation. French text at British and Foreign State Papers, vol. 1, pt. 1, p. 334. 158 THE ARMED NEUTRALITY OF 1780 AND 1800 which had broken out in 1780 between two great Powers, laid upon the other nations the obligation of providing for the security of their subjects' commerce and navigation. Every act that is founded on justice should obtain general assent ; and in this case all that was done was to put again into effect the principles of the law of nations. Russia had at that time the inestimable advantage of carrying the reestablish- ment of these principles to their ultimate goal, and she was, so to speak, the regulator of the different measures which should cause these principles to be respected. Each of the Powers acceded thereto, enjoyed innumerable advantages therefrom, and this arrangement served as a basis for all the treaties of commerce that Russia con- cluded thereafter. General approval had made of the principles on which it rested a kind of code of the nations ; it was at the same time the code of humanity. The common interest of mankind guaranteed its maintenance and execution. But perhaps there was too little effort to give these principles a new sanction at the time when, a great Power having reached the point of dissolution, nearly all the other nations felt the fatal influ- ence thereof ; when the majority of political bonds were broken or took another direction as a result of the war which was not long in breaking out — a war so different from those that had preceded it, and whose events, which were so multifarious and extraordinary, de- stroyed all former combinations. Attention being absorbed by events of such vital interest, it was impossible to give the necessary care to the maintenance of these salutary stipulations. On the one hand, jus- tice should have led the belligerent Powers to present a method of guarantee;, and the neutral Powers, which were confident that this would be done, believed that they had sufficiently ensured freedom of navigation and commerce to cause it to be respected at least by legiti- mate Governments, when a new incident proved to what extent inde- pendence oi Crowns can be exposed to danger, unless the principles and maxims were reestablished, which alone can serve, during this war, as the basis for tranquillity and security of neutral Powers. On July 13/25 last, an English frigate met at the entrance to the Channel a Danish frigate which was convoying to different ports sev- eral vessels of its nation. The Danish captain, after his declaration that lie had no article of contraband on board, having resisted the visi- tation of his vessel, was attacked and forced to yield to superior strength. It, as well as its convoy, was taken to English ports. OFFICIAL DOCUMENTS 159 The first care of His Danish Majesty, the friend and ally of His Majesty the Emperor of all the Russias, was to inform this latter sovereign of this event and to consult him as to how they should re- gard this self-evident violation of the law of nations and the prin- ciples of neutrality which formed the basis of the treaty of com- merce between Denmark and Russia. Although His Imperial Majesty up to the present moment can not but believe that such a violation will be highly disapproved of by His Britannic Majesty, and although His Majesty is pleased to believe' that the equity of His Britannic Majesty will induce him not only to refuse to approve this act, but also to give the Court of Denmark satisfaction proportional to the insult, -nevertheless His Imperial Maj- esty, in order to prevent the recurrence of such acts of dolence in future, recognizes the necessity of reestablishing the bases of neu- trality, under whose protection his subjects, as well as those of neu- tral Powers, may enjoy the fruits of their industry and all the advan- tages of neutral nations, without being exposed hereafter to arbi- trary measures which none of the belligerent Powers can permit with impunity against them. As it is clearly to the interest of His Imperial Majesty, both with respect to the navigation of his own subjects and that of the nations nearest to his ports, to protect from such acts of aggression or vio- lence the seas which bathe the shores of Russia, he invites the Powers that have ports in these regions, and particularly Their Majesties the Kings of Prussia, Deninark, and Sweden, to accede, together with His Imperial Majesty, to the measures that he shall propose to them successively to reestabHsh in all their force the principles of armed neutrality, and thus to ensure the freedom of the seas. His Majesty announces at the same time to these sovereigns, by the present declara- tion, that he will use all the force that his dignity requires to uphold the honor of his flag and the flags of his allies, to guarantee their sub- jects from any violation of the rights sanctioned by all peoples, and to secure for them, under the protection of their respective Governments, all the advantages that result from freedom of commerce and naviga- tion. His Imperial Majesty, likewise animated by sentiments of justice and impartiality, declares that, while he shall establish a rule for the strict observance of the rights of neutrality, he will not impair the force of any one of them, and that the measures which he shall in his 160 ' THE ARMED NEUTRALITY OF 1780 AND 1800 wisdom adopt shall guide the conduct of his commanding officers and subjects, in accordance with the principles of the most rigorous equity, and in such a way that the belligerent Powers themselves will be constrained to recognize the necessity for his provisions and the beneficent purity of his views. The Minister of His Imperial Majesty addresses, by order of his sovereign, the present declaration to his Excellency Baron de Stedingk, Ambassador Extraordinary of His Majesty the King of Sweden, re- questing him to communicate it immediately to his Court. Count de Rostopsin COUNT DE PaNIKT His Excellency Baron de Stebingk. Preliminary Convention between Denmark and Great Britain re- garding the "Freya" Dispute, August 29, 1800^ Their Danish and Britannic Majesties, equally animated by a desire to prevent by means of a preliminary friendly agreement the conse- quences that might result from the difference which has arisen between them as a result of the encounter which took place between the Dan- ish frigate Freya and certain English warships, and to restore in full measure the relations of friendship and confidence which have so long united them, have to this end appointed and constituted as their plenipotentiaries : His Danish Majesty, Count Bernstorff, his Cham- berlain and Secretary of State for Foreign Affairs ; and His Britannic Majesty, Lord Whitworth, Knight of 'the Bath, who having com- municated to each other their respective full powers have agreed upon ■ the following articles : Article 1 The question of right, with relation to the visiting of neutral vessels under convoy, shall be deferred to a subsequent discussion. Article 2 The Danish frigate Freya and the vessels under its convoy shall be immediately released and the said frigate shall receive in the ports of ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 149. OFFICIAL DOCUMENTS 161 His Britannic Majesty all that it may require for repairs, according to the practice in vogue between friendly and allied Powers. Article 3 To prevent the renewal of disputes of the same nature as the result of similar encounters, His Danish Majesty shall suspend the. sending of convoys until subsequent explanations on this same subject shall have resulted in a definitive convention. Article 4 If, however, encounters of this sort should occur before the instruc- tions intended to prevent them can be put into operation, they shall have no serious consequences, and the settlement thereof shall be considered as being ' included in the matters covered by the present convention. Article 5 This convention shall be ratified within three weeks from the date on which it is signed, or sooner if possible. In faith whereof, we the undersigned plenipotentiaries of Their Danish and Britannic Majesties, have signed in their names, and by virtue of our full powers, the present convention, and have hereto affixed the seal of our arms. Done at Copenhagen, August 29, 1800. [L. S.] (Signed) C. Bernstorff [L. S.] (Signed) Whitworth Decree of Itie Emperor of Russia regarding Sequestration of the Property of Englishmen, August 29, 1800^ Pursuant to the orders of his Excellency Chevalier Pepow, Major General commanding at Riga, under date of August 28, the magis- trates of this city announce that His Imperial Majesty, having been ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 153. 162 THE ARMED NEUTRALITY OF 1780 AND 1800 informed of the acts of violence which the English have committed against Denmark, and having learned that an English squadron has passed the Sound, an event which, by causing this passage to be closed, has seriously affected the entire commerce of the Baltic, has ordered that, as security against the damage that may result therefrom to Rus- sian commerce, the real designs of the English being as yet unknown, all property belonging to Englishmen be sequestered; that the most rigorous measures be taken to prevent this property from being restored to them under any pretext and without the permission of His Imperial Majesty, without, however, confiscating it or 'molesting the English in their domestic commerce. Published at the city hall of Riga, August 29, 1800. Ad mcmdatum. (Signed) Schwaz Secretary in Chief On the Subject of the Capture of Neutral Ships and of the Project of Confederacy supposed to exist in the North against Great Britain, September, 1800^ It must have occurred to the observation of every man, and not without pain to every well-thinking person, that several of our daily papers, namely, mostly those in the interests of opposition, have ex- erted themselves, with more than ordinary malignity, to represent the subject before us in the worst colors; and that they have in this in- stance, as in every other in which they could flatter the enemies of their country, and misrepresent the acts of government, been faithful to that systematic rule of conduct, which their repeated defeats, and ^Collection of State Papers, vol. 11, p. 169. This article was published in the London papers so early as the 12th of September, 1800. It is attributed to the pen of a noble Lord, who has been for many years honored with the rep- resentation of His Majesty at the Court of one of the northern Powers engaged in the confederacy. It must be a matter of interest and curiosity to know what were the sentiments at that time of such an able statesman, possessing such an opportunity of information upon the subject; and therefore the editor has not hesitated to give the article, though not avowedly official, a place in this collection. OFFICIAL DOCUMENTS 163 the disappointment of their sinister hopes, by the vigor of adminis- tration, have suggested to their malevolence. But it shall be the object of these lines to undeceive the honest and sober portion of the people, who, unaware of the falsehoods daily propogated in those papers, have suffered themselves to be misled by the contemptible comments which have lately swelled their columns, in relation to the present subject, while I endeavor to show that it is to the rancor and jealousy entertained by some of the northern Courts, that of Denmark in particular, of the commercial prosperity of Great Britain, and not, as the hirelings of opposition would fain have us believe, to the arro- gant, unjustifiable pretensions, or haughty deportment, of our own people towards the rest of the world, that we are to look for the source of the prevailing misunderstandings. The system now apparently manifesting itself in the north is not new : one similar in its tendency disclosed itself towards the latter end of last war; and our differences with Holland, which country ad- vanced the same unjustifiable pretensions, to a free and uninterrupted intercourse with the enemies of Great Britain, which it would appear Denmark now conceives the design of establishing, were brought to a crisis by the discovery of proceedings decidedly hostile on the part of that republic, as may eventually prove to be the case with regard to Denmark, if the Government of that country avows or justifies the late hostile aggression, of which we have so much reason to complain. Indeed, during the whole of the present war, the conduct pursued by the subjects of that nation has been more than equivocal ; the most marked partiality for our enemies has distinguished them in multi- tudes of instances ; and it will not be improper for every Englishman to attend to the consequences which he may expect hereafter, if this semi-warfare, under the cloak of neutrality, is to be tolerated, in com- pliance with the murmurings of disaffection at home, the mailicious insinuations of our external enemy, or the thirst of pelf of pretended friends. It may first be asked, what is the nature of the present war? Each nation engaged in it will inform you, that it is a contest undertaken in defense of its just rights, dearest interests, and independence; and individuals must form their own judgment of its expediency and jus- tice, from such facts and documents as have come to their knowledge respecting its origin and causes. An inquiry into the merits of a ques- tion so often and so ably discussed in Parliament, and latterly so 164 THE ARMED NEUTRALITY OF 1780 AND 1800 judiciously treated in the incomparable work of Mr. Herbert Marsh, who has immortalized his name, among fair and candid men, by this production, would be foreign to the present purpose : it is sufficient for us to know that war actually exists, that that war is waged, on our part singly, against the united maritime strength of the first naval Powers of Europe, and one of those Powers, in particular, the relent- less rival of this country, and the most desperate and inveterate foe which, perhaps, a nation had ever to contend with ; one which no sac- rifice, short of the most abject concession, will satisfy, if she proves successful in the present conflict. Does it not follow then of course, does not self-preservation inform us, that our whole object, all our most strenuous endeavors, should be to weaken and deprive that cruel enemy of the power of molesting us, and to employ with elJfect the means of defense which it has pleased God, in the largeness of his bounty to this nation, to place in our hands? The ultimate object of a just and necessary war, such as ours is, is security at home, respect abroad; in a word, a safe and honorable peace : to attain it, we must exert our valor, skill, and vigilance, in that line of warfare where they are most conspicuous, and to which it seems nature has peculiarly adapted us, in conformity to the happy allotment made to us by Providence of an insular situation. To our exertions by sea, to our naval strength alone, therefore, are we to look for protection, and the preservation of our liberties and political exist- ence as an independent nation. To our fleets, under the blessing of Providence, are we indebted for the advantages we enjoy; and it surely is no less a duty carefully to watch that our enemies receive no undue aid and assistance from nations denominating themselves friendly, than it is to defend ourselves from those enemies ; or otherwise, while with our right arm we are repelling the open united assaults of France, Spain, and Holland, and spending blood and treasure in our cause, we shall have to protect ourselves with our left from the stiletto attacks and secret blows from beneath the neutral cloak of Denmark and Sweden. Indeed there would be a glaring absurdity, and an unpar- donable supineness on the part of those who are intrusted with the management of our dearest concerns, if they were tamely to suffer such proceedings ; and if the illicit practices of neutrals have been sometimes connived at, as being the isolated acts of certain individuals, unauthorized and unsupported by their superiors, it does not follow OFFICIAL DOCUMENTS 165 that those practices are uniformly to be tolerated, or to pass unnoticed, especially when they assume the aspect of a hostile disregard of com- mon usage and the law of nations, and appear to be countenanced by those very authorities whose duty it is to check and suppress them. It may be necessary, for the information of some readers, to state what the practices alluded to may be, and I am happy to be able to do so, not only from personal observation, but upon high and respectable judicial authority. I shall take Denmark as the standard of the most unwarrantable proceedings ever ascribed to a nation in amity with His Majesty, and endeavor to show that the subjects of that crown have, more than any other people known, indulged in unlawful specu- lation and the eager thirst of gold, at the expense of other States, to the great annoyance especially of Great Britain, and the unspeakable advantages of her numerous enemies. It may be necessary here to show in what manner the Danes have succeeded in covering the property of the enemy to the extent they have done, as assertions, unsubstantiated by facts, may be met by asser- tions equally plausible, or equally unsatisfactory to the reader. It will not be denied that the enemies of England in general, and especially the Dutch, whose ships and property have been blocked up in the harbors of Surinam, and elsewhere in the West Indies and America, by the British cruisers, have called out to other maritime nations to come and assist them to carry home their colonial produce; nor will it be denied, that, as almost all the inland trade of Holland is carried on by commission, so their external navigation is carried on by seamen- who are the natives of the northern parts of Europe, whilst their own people are employed in the canals and trackschuyts. The masters of most Dutch ships are Danes, and nothing certainly could be more obvious than the policy of covering Dutch property by frau- dulent intervention and false transfers to Danish subjects; and, from the extent and continuance of these practices, it would indeed almost appear, that the payment of duties into the Danish treasury was as irresistible for the Danish Government, as it was found impossible for the Danish merchant to withstand the monopolizing of the trade and navigation of Holland. Thus things have gone to great length; pre- tended sales, pro fmma, have been made by Dutch proprietors to Danes, and other neutral subjects, in the ports of Surinam and the Dutch colonies abroad, and at Amsterdam and other ports of Europe. At these sales the proper parties were not always present themselves, 166 THE ARMED NEUTRALITY OF 1780 AND 1800 the equivalent consideration was not paid down, and the transaction was neither before proper magistrates on oath, nor had the true forms of notarial jurisdiction. Crews were actually sent from Copenhagen, Altona, and elsewhere, to Surinam, etc. The Dutch governor himself is absolutely said to have hoisted the Danish flag; and entremetteurs, or middlemen, agents, and brokers, charged, in their correspondence and papers, so much for commission for what they called neutralisa- tion. Royal sea passes were obtained at Copenhagen as for ships belonging to Denmark, and for persons as Danish inhabitants, which ships had never been in the ports of Denmark, and which persons had passed the greatest part of their lives in foreign countries, under for- eign protection. The very bills of admeasurement were made only with the curious clause of ad interim, viz., to be valid only until such time as they should come to Denmark. It must be further observed, that the purchases made in the colonies of the enemy, particularly by the Danes, were attended by a mode of proceeding as equivocal, as it tended strongly to conceal his property. Persons, in the character of Danes, were sent from Europe to buy up West India produce: for these cargoes bills were drawn for the payment, upon condition of the ship and cargo's safe arrival, and that the person on whom the bills were drawn should have the commission : thus, in case the ship was captured, and never arrived, there was no actual payment fairly out and out, and no loss to the Dane. There was another practice, that of drawing and redrawing; as when the Dane has been drawn upon, and paid the pretended price for the goods, he draws again upon the Dutch merchant, in whom all property begins and ends. How then were such difficulties to be got over in our courts? How was it pos- sible to discover the ultimate ? For if the parties had no conscience in falsifying oaths, proofs, and papers, little could be done towards dis- covering the truth, and checking an intercourse so opposite to every thing that is to be hoped for by this country in a naval war. Besides, even on the supposition of neutrals having a right to buy and sell in the enemies colonies, and of its being only required of them to prove that there was a bona Me purchase in open market, out and out, for a fair equivalent actually paid, still so much fraud, of the kind above related, appeared openly in the Court of Admiralty, that the decisions could not be different from what they were ; for, notwithstanding the •clamors raised by the Danes, every neutral subject must be conscious that, as such a trade must be attended with peculiar suspicions, it was OFFICIAL DOCUMENTS 167 incumbent on each of them to produce more exact documents ; and as their profits were immense on the general scale, so individuals ought the more patiently to have abided the consequences of seizure and investigation. It is scarcely necessary to add, that these doubts and suspicions were increased, in proportion to the facility with which it was known that briefs of burghership, constituting the holder a Danish citizen, and giving him all the privileges and advantages of a Danish subject in matters of trade, were sold in every town in Denmark to the first comer, whether a Cherokee or a Mandingo Negro; and that En- glishmen as well as Dutchmen were frequently, under a similar meta- morphose, enabled to hold a direct intercourse with all the enemies ports abroad, to display the Danish flag, and exhibit Danish papers ; though, in the case of the former, this intercourse was not only unlawful, but even criminal, upon the ground of express law to that effect, in time of war, and upon the principle of no Englishman, or other British sub- ject, having a right, at any time, to claim the protection of a foreign Power in any transaction, whether commercial or other, that is injuri- ous to the interests of his lawful sovereign. Consular certificates, declarations, and interventions, by which the neutral subject sought to protect his vessel from the search of such consular agent's own coun- trymen at sea, and to legalize his cargo by the seeming acknowledg- ment of its lawful character by the enemies of Great Britain, was another instrument of deception in the hands of the neutralist, and a new system introduced by the politics of France, contrary to the ancient established laws of nations, which no judge in admiralty causes could ever submit to. But in adducing the multiplied instances of the prac- tices pursued in regard to the West India settlements of our enemies, it is not to be understood that the speculations of the Danes were con- fined to that quarter of the world only; the east as well as the west, the Mediterranean as well as the ocean, all equally afforded the fairest opportunities for similar abuses ; and the great settlement of Batavia, in particular, has been preserved to Holland by the fraudulent inter- vention of Danish subjects alone, while the whole trade of the Mauri- tius passed through their hands, under the same fictitious form with that of the Dutch and French West India islands, although the whole capital of Denmark would scarcely have sufficed to bring one of those branches of commerce fairly, out and out, into their own hands. In Europe, the ports of Carthagena, Cadiz, Ferrol, the. ports of Toulon, L'Orient, Brest, and Rochefort, received their naval stores from the 168 THE ARMED NEUTRALITY OF 1780 AND 1800 hands of neutrals, and the Danish flag is everywhere conspicuous, where the enemies of England stand in need of supplies of this or any other description, whether lawful or unlawful. But it will happen with this flag, at the close of the present war, in increased proportion as it did with the same flag at the end of the last, when, to quote a single example only, out of eighty vessels which sailed the seas in the name of one great mercantile house of Copenhagen, under Danish colors, there was not one but what assumed its native Dutch character at the pacification, and acknowledged its real proprietor by returning to tlie ports of Holland. The metamorphose of the French, Dutch, and Spaniards, into Danes, will be still more striking at the close of the present war: at the signing of a peace, the scanty flag of Denmark will resume its proper place, and convey a juster idea of its original insignificance than may be now entertained of it by such as are ignor- ant of these things. But enough has been said to prove the necessity of the strictest watchfulness on our part; and where is the man who conscientiously can justify such proceedings? Where is the English- man, who has the interest of his country at heart, that would submit his fair and impartial judgment of these matters, and his right of self-preservation, to false notions of justice, to those who would so cruelly impose on his good faith, and who have so bare-facedly tres- passed on his borders, and trampled his best fences under foot, while they professed their friendship for him, and declared themselves neuter in the quarrel between him and his enemies? But, above all, where is the Englishman who, though with native humanity and characteristic benevolence he might be disposed to spare the individual who injured him, would tamely submit to the same encroachments, if he discovered a really hostile design in a nation at large, and the intention, openly manifested, of opposing, by acts of violence and force, the lawful exercise of his just prerogative? The late circumstance of a Danish ship of war resisting by arms the usual visit to which neutral mer- chantmen are liable on the part of every belligerent Power, is one which no existing treaty, no law of nations, no usage ancient or modern, can justify or countenance ; it was a direct infraction of the neutrality of Denrtiark, by one of her own commanders; a most un- warrantable opposition to the lawful exercise of the duty imposed on the British officers, and a wanton violation of a right inherent in every belligerent Power, and naturally arising from a state of war; a right which our great active rival even did not dispute, in a case which OFFICIAL DOCUMENTS 169 occurred in the East Indies in the course of Lord Cornwallis's mem- orable war with the late Tippoo Sultaun; a right, in short, in many- instances sanctioned and acknowledged by treaty, with provision only against arbitrary and vexatious detention, where papers and other documents appeared unobjectionable. But in regard to warlike stores, more specific arrangements still have been reciprocally agreed on between the States ; and, in many cases, which a reference to our public treaties would discover to the reader's satisfaction, each indi- vidual article constituting such stores is named and declared contra- band by mutual consent, and proper forms of sea passes for their respective subjects formally stipulated. With what conscience, then, can it be pretended, that the escort of a ship of war, of a nation not a party in the contest, should screen the neutral merchantman from the inspection of his papers, or the stricter search of a belligerent Power, whose only hope of a successful issue is on the assurance of the enemy's receiving no undue succor or advantage from nations pro- fessing neutrality and friendship? If protection of this kind is lawful in one instance, it must be equally so in a thousand, and the right of visiting must cease. The admission of so preposterous a pretension would shortly put an end to everything; and we had much better accede at once to the principle which French policy would fain pre- scribe, but which British sagacity contemptuously rejects, of suffering neutral bottoms to constitute neutral property, and thus deliver up com- merce and navy, at a stroke, to the mercy of our foes. There are men, who, unacquainted with Denmark's means of attack and defense, may form such erroneous conjectures on that subject, as the malice of the disafifected would suggest to them; and there are others, who, better acquainted with the relative powers of that country, may stand appalled at the bugbear of the northern confederacy, and their frightened fancy exhibit to their view the fleets of Denmark, Sweden, and Russia, combining their operations at sea with those of a Prussian army by land, and changing the face of the globe. But let us take a more impartial view of things, and we shall soon perceive that such fears are imaginary only, and that people shrink more from the sound, than they would do from the reality of this war, if, indeed, such a w^r should be in contemplation with those States, which is extremely problematical. It must, in truth, be acknowledged, that there is something very extraordinary in the conduct of the Court more immediately in question ; and the circumstance of two ships, belonging 170 THE ARMED NEUTRALITY OF 1780 AND 1800 to that State, acting in a manner so exactly corresponding, though in different seas, would seem to corroborate the idea of the existence of a secret understanding between her and other maritime Powers of the north, as it is hardly to be supposed, that, without some such concert, she would have adopted so desperate a measure as to hazard singly a contest with this country ; but still this is doubtful, and it may be only an experiment made on the temper of the British Cabinet, which the resolute firmness of this Cabinet will induce that Court to abandon with as much haste, perhaps, as it undertook it. But in order to be prepared for every contingency, let us suppose the existence of this confederacy, and let us review the forces of our new antagonists in hostile array, while we examine the consequences to them and to our- selves, of so unjust a league, so incoherent, so preposterous, so un- natural a state of things. We see Denmark with thirty-three sail of the line in the harbor of Copenhagen, her only naval arsenal, with two or three others on the stocks, and from twelve to fifteen frigates and other smaller vessels ; two, at most, of these ships, carrying upwards of seventy-four guns — some that number, but the greater part only sixty-four. Of the num- ber of ships of the line, eight at least are wholly unfit for service, and if five-and-twenty could be equipped, it is the utmost; but it could never happen that they could all be properly manned at the same time ; and if it were possible, it is extremely improbable that the whole fleet would be risked, at once, to the hazard of an action, even with an enemy of inferior force. Ten or twelve ships, therefore, is the utmost number that would ever quit the Baltic ; the rest would be reserved to replace, occasionally, such of them as wanted refitting, after service or accidents at sea, and as guard-ships for the protection of their coasts, and the harbors of Norway in particular, where there exists a spirit not altogether friendly to the Government of Denmark, and a brave people, the enthusiastic admirers of the naval valor and prowess of Britain, as well as of her invaluable constitution. The Danish squadron, once at sea, would naturally seek the ports of Holland; it might also hope to evade the vigilance of our fleet, and escape into those ports; but another Duncan would soon appear to paralyze its future operations. The manning of this squadron, however, must first be effected, before it undertakes any sort of operations ; and unless the Danish Government has been silently pursuing measures, in order to secure so requisite a preliminary to war, this object would extremely OFFICIAL DOCUMENTS 171 perplex that Governm^ent in the outset. The Danish, as well as Norwegian sailors, fishermen, and other seafaring people, along the coasts of those kingdoms, are all enrolled, and obliged, by law, to serve on board His Danish Majesty's fleet, whenever a proper notice is delivered to them to repair to their allotted stations; and, indeed, by this mode, a respectable squadron, fifteen sail of the line perhaps, might be soon manned, provided the event had been foreseen, and those men could be found unemployed at their respective homes; but this can hardly be supposed to be the case at present: — ^those men's livelihoods being procured by their industry and various maritime vocations, it rarely happens that a third of their number is to be met with on the spur of the occasion ; besides, it is well known, that, as in that country, of late years, every wise and prudent consideration has yielded to the desire of accumulating wealth — the boon held out to the Danish mariners of becoming the carriers of the world, afforded too' promising a prospect of general profit, to admit of those permits being withheld from them by the Government, which, by law, it is authorized to grant to such as are desirous of serving abroad, or of absenting themselves on distant voyages. Thus, on an emergency, at this season of the year, it would prove extremely diificult to man five ships of the line, and an equal number of frigates ; and if the summer months are lost, the campaign becomes hopeless for a nation, with which the elements, and the ice in particular, are at variance for the remaining portion of the year. From this view of the naval power of Denmark, it will not be con- tended, that much is to be apprehended by this country from that quarter; nor will it be thought, upo'n an inquiry into that of Sweden, that the accession of that country should much alarm us. The dimin- ished fleet of Sweden, reduced, since the last war with Russia, to twenty sail of the line, would unwillingly risk its reputation beyond the Sound; and though a division of four or five ships might join the Danes in the North Sea, the remainder would be satisfied with a summer cruise in the Baltic or Cattegate, and be wanted to protect Gottenburgh, as well as Copenhagen, and the, other trading towns. The manning of the Swedish fleet would be attended with still greater difficulties than even that of Denmark; and the expenses of a war, and the present shattered state of the finances of that country, would be more severely felt, and more reluctantly submitted to, than in the former, where public credit is on a better footing, and the trtasury 172 THE ARMED NEUTRALITY OF 1780 AND 1800 more judiciously administered; yet even there the most serious conse- quences might be apprehended from any great additional taxes or burdens on a people naturally selfish, and not enjoying the inestimable privilege of assessing themselves. With respect to Russia, her navy is more respectable than the two former put together; sixty sail of the line, with a proportionable number of smaller ships, are said to compose her marine: but in the present state of uncertainty, which prevails in regard to the real de- signs of that Court, it would be misplaced to name His Imperial Maj- esty, the Emperor Paul, otherwise than with profound deference, and just admiration of the noble deeds achieved by his arms, during the time he favored the common cause; and little more shall, accordingly, be said here, on the part that monarch may be supposed to take, in the so much rumored concert of the north, than merely, that a naval war might possibly not be attended with the same brilliant successes which signalized His Imperial JNIajesty's arms by land, as his ships are neither calculated for very severe service in distant seas, nor his mariners very numerous, or likely to be much disposed to enter with ardor into a war with that ally, of whose irresistible valor and dex- terity on his native element, they have had so many opportunities of receiving the most evincing proofs ; such proofs, as might make even the brave and hardy Russian pause, ere he entered the lists of his opponents. Of Prussia, as merely a military Power, little need be said, although that country, notwithstanding, possesses the means of materially injur- ing our trade, by the power and influence she enjoys over Haimiburgh, and other ports in Germany, from which she might entirely exclude us, if she could find any compensation in that measure, for the more essen- tial injury the commerce of Germany in general, and of her own fine province in Silesia, so noted for its linen maniifactories, in particular, would experience from being cut off from all exportation by sea. This hasty sketch of the power and maritime strength of the pro- jected alliance against this country (if, indeed, it be true that the dictates of malevolence, and the basest passions, should have overcome the suggestions of sound policy, which must ever militate against the formation of such an alliance), will suffice to convince us, that the whole northern marine, united with that of the rest of Europe, is insufficient to cope, successfully, with the triumphant fleets of Great Britain ; and it may now be well to state what the consequences of such combination might be, as well to our new enemies as ourselves. OFFICIAL DOCUMENTS 173 The trade of the Baltic, and even to Germany, would be, at once, cut off from this country, and the momentary inconvenience would be severely felt, though it could not be productive of any very serious mischiefs, as such a state of things could not be durable. We should receive no naval supplies from the Baltic; and all stores of that kind would rise to an enormous price in every part of His Majesty's domin- ions. Government having a title to preemption, would of course pro- vide against the wants of the navy; but commercial navigation would experience considerable distress. On the other hand, the enormous sums of money which are annually remitted to the States of the Baltic, for those articles, would remain at home, or be fully employed in setting hands to work in every other corner of the globe, from whence the same commodities could possibly be procured. We should, indeed, have to send further for them, but we should in the end obtain them ; and the Baltic States, perceiving the fatal consequences to them- selves of such a diversion of their branches of trade, would not be tempted to pursue the same blind and rugged path of policy to its conclusion — their own eventual ruin. If those supplies were cut off from us, we should take care that they were equally so from the rest of Europe ; and the general stagnation which would follow, would become insupportable to the northern Powers, as the article of naval stores is the only valuable return they have to make for their own supply of many of the necessaries and all the luxuries of life from other countries. It is, besides, particularly with this country, that theirs is a gaining trade ; with most other nations it is a losing one. They take little from us, in comparison with what we receive from them ; and the large returns we are obliged to make them in specie are the life and soul of all their other com- merce. Besides, what is it that British industry might not accomplish ? Should we tamely sit down under our privations, and thus acknowl- edge our dependence on those nations for the essential requisites towards maintaining that marine which is the pride and glory, as well as the support of Great Britain ; the envy and admiration, as well as the dread of every hostile Power? Certainly not. Why should not the noble fir-woods of Scotland, though inland and of difficult access, be rendered serviceable by British perseverance, and yield masts to ships of English oak, as well as turpentine ? And how would Norway brook the loss of those chief sources of her commerce ? What would be said in Sweden, if British iron was found suiifacient, and if, with 174 THE ARMED NEUTRALITY OF 1780 AND 1800 patriotic spirit, all ornamental work in this article was to cease in England, in order to supply our dock-yards and naval arsenals with the requisite quantity? What would be said there, if tar, pitch, etc., were to be imported in greater quantities from America? And would not the dealers in hemp, flax, and coarse linens, in the Prussian and Russian provinces, look confounded, on perceiving that the exigency of the case had driven the bold and enterprising genius of British traders to the search of the same commodities, not only from the well- known sources of industry, in this species of merchandise, in Scot- land and Ireland, but from Barbary, America, and Levant, and else- where? Can the occasional supplies of wheat, and other grain, we receive from Denmark, tempt us to forego the precious right she has rashly ventured to dispute with us ; and would not legislative provi- sion for the extension and improvement of agriculture at home soon render us independent of her for this necessary of life? As for the trifling articles, which her jealousy of our superior workmanship and excellent materials in manufacture allows her to take of us, and of which more is smuggled than lawfully imported by her own people, they are too trifling to deserve mentioning among our losses in trade by war. With regard to Hamburg, indeed, and the use of the rivers Elbe and Weser, the kings of Prussia and Denmark might, as was before hinted, materially injure us, by depriving us of these only remaining channels of commercial intercourse with Germany and the northern continent of Europe : but all communication with the ocean would like- wise be shut to them; and it is not to be believed that the Elector of Saxony, or other pacific States, would silently acquiesce in so violent a measure, and the consequent suspension of all exportation of their superfluities by sea. The first immediate consequence of our naval operations would be, the total suspension of the Sound duties, into the Danish treasury; and it need only be said that £160,000 sterling are annually received under that head, to show that it is a most important item of revenue to the State, and one which Denmark would as reluctantly part with, as it could little spare, from the civil list, or immediate expenditure of the royal household, to which it is principally appropriated. Scarcely a ship would venture through those straits ; and the British cruisers may, in case of war with Denmark, more effectually deprive the Dutch and French of their supplies from the Baltic than they do even at this OFFICIAL DOCUMENTS 175 moment. We should deprive the Dutch of the inestimable advantage they derive from, the use of the canal of Kiel, in Holstein, through which their small craft and coasting vessels, passing from the Baltic into the river Eyder, and so on into the German Ocean, now supply their wants, as well as those of France, without danger of interruption from our ships of war, which, drawing more water, are unable to pur- sue them through the shoals and narrows to which those people imme- diately betake themselves ; but once at liberty to act hostilely against Denmark, nothing could hinder Great Britain from possessing herself of the island of Heligoland at the entrance of the Elbe, and from thence annoying with light vessels the Dutch coasting trade, as it issued from the Eyder, at the same time that they blocked up the narrow passes at the mouths of the Elbe and Weser, leading to North Holland. Copenhagen and Altona, from their position and military strength ; the seaports of Holstein and of Norway, from their little importance to us, might remain unmolested; but Tranquebar, Freder- icksnagore, in the East, Saint Croix a^id Saint Thomas, in the West Indies, would fall an easy prey, and with them all the hopes of Den- mark of commercial grandeur and prosperity, to the utter confusion and trepidation of the whole nation, which attaches the utmost conse- quence to the possession of those settlements. Letter of the Spanish Secretary of State to the Swedish Minister regarding Br'itish Violations of the Swedish Flag, September 17, 1800^ Sir : The King my master has learned with the greatest indignation, from a report which the Consul of His Swedish Majesty at Barcelona has sent to the Captain General of Catalonia, containing the declara- tion of Captain Rudhardt, of the Swedish galiot Hoifnung, that on the afternoon of September 4, last, two English vessels and a frigate forced the said captain, after having examined his papers and found them to be all right, to take on board English officers and a consider- able number of sailors and to permit his vessel at nightfall to be towed iTranslation. French text at Martens, Recueil de Traites, vol. 7, p. 157. 176 THE ARMED NEUTRALITY OF 1780 AND 1800 by several P^nglish boats to the roadstead of Barcelona and under the guns of its batteries. That the English, having reduced the said captain and his cr6w to silence, by pointing a pistol at his breast, took possession of the helm, and at nine o'clock that night, by means of the said vessel and the boats surrounding it, made an attack on two frigates under the Span- ish flag, which were at anchor. The latter, having no reason to sus- pect that this friendly and neutral vessel concealed enemies on board and thus served for an attack of the most treacherous nature, were in a manner surprised and forced to surrender. For further details and the acts of violence committed by the Eng- lish on the Swedish vessel, we would refer you to the captain's declara- tion, which is transmitted herewith. The King my master can not but consider this incident as affecting' the rights and injuring the interests of all the Powers of Europe, including those of England, and above all as a very serious insult to the flag of His Swedish Majesty. Indeed, it is evident that, in admitting neutral vessels to their road- steads and ports, the belligerent Powers desire to mitigate the scourge of war and to facilitate the commercial • relations between peoples, which their mutual needs demand. Therefore, whatever tends to render such navigation suspect and dangerous prejudices the rights and interests of all nations alike. In the present case, the rights and honor of the Swedish flag have been violated in so outrageous a manner that few such examples can be found in the maritime history of Europe. If the attack were left unpunished, it would tend to embroil two friendly nations, to paralyze their commercial relations, and to cause the nation that tolerated the insult to be considered as a secret auxiliary of the enemy Power, thus forcing Spain to adopt such measures as the interest of its vessels and the safety of its ports might require. However, the King my master can not but feel that the Swedish captain was not guilty of the slightest connivance with the English, and that all that he did was to yield to their acts of violence and over- powering numbers. LTnder this supposition, the King has commanded me to bring to the knowledge of His Swedish Majesty this grave insult to his flag; and having no doubt as to the latter's resentment at so base and lawless a proceeding on the part of certain officers of the British navy, he ex- OFFICIAL DOCUMENTS 177 pects the Court of Stockholm to request the English Ministry most urgently to see to it that the officers guilty of the act in questions are punished with the utmost severity, and that the two Spanish frigates which were surprised and removed from the roadstead of Barcelona by a ruse contrary to the law of nations and to the rules of war, are immediately restored, together with their cargoes, as having been illegally taken by means of a neutral vessel, which served as an instru- ment for the assailants. His Catholic Majesty is the more confident in his belief that the success of this demand is assured, since the English Government itself can not be blind to the fact that its enemies, by following such an example, might likewise make use of neutral ships to infest its road- steads and to perpetrate in its ports all the damage possible. But if, contrary to his expectation, the steps taken by His Swedish Majesty at the Court of London to obtain reparation for the insult to its flag, as well as the restitution of the two Spanish frigates, should not meet with the success desired before the end of the year. His Maj- esty would consider himself obliged, although with the greatest regret, to adopt measures with respect to the Swedish flag which would pro- tect its roadsteads and ports from so dangerous and revolting an out- rage as that just committed by the English. I have the honor to be, etc. (Signed) Chevalier d'Urquijo St. Ildephonso, September i/, 1800. Circular Letter of the Spanish Minister to the Foreign Ambassadors and Ministers at the Court of Madrid, September 17, 1800^ Sir : I have the honor to hand you a copy of the memorandum which the King my master has ordered me to send to his Minister at Stockholm, to be delivered to His Swedish Majesty's Minister. The principles therein laid down and the event that has given rise to them are of such a nature as must interest all the commercial nations of Europe, particularly neutral Powers. ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 156. 178 THE ARMED NEUTRALITY OF 1780 AND 1800 His Majesty is convinced in advance that your Government will regard the matter in the same light and is pleased to believe that it will cooperate in endeavoring to erase, so. far as possible, from the annals of this war an act so destructive of the confidence and hospi- tality enjoyed by neutral and friendly flags. I take ad\antage of this occasion to renew the assurances of my consideration and esteem, and am, sir, yours, etc. (Signed) Chevalier d'Urquijo St. Ildephonso, September ij, i8oo. Refusal of the Emperor of Russia to receive an Ambassador from the Emperor of Germany, October 15, 1800^ According to advices received from the Privy Counselor, M. de Kalistchew, it has been made known that the Emperor of Germany intended to send an Extraordinary Embassy to the Court of His Im- perial Majesty, to offer excuses for what happened at Ancona; and for this purpose he had named the Prince of Auersperg, a Lieutenant General of the Armies, and Knight of the Golden Fleece, as his Am- bassador. It has not, however, pleased His Imperial Majesty either to accept the Embassy or the Ambassador, particularly in the person of the Prince of Auersperg, who during the journey of Her Imperial Highness the Grand Duchess Alexandra Pavlovna, allowed himself to offer her several indignities (grossieretes). His Majesty orders that no answer shall be returned to this notification. Reply of the Sw^edish Minister to the Spanish Secretary of State, October 22, 1800^ His Swedish Majesty has learned with the greatest displeasure of the act of violence which certain officers of the English navy com- ^Annual Register, 1800, p. 258. Extract from the Petersburg Gazette of Octo- ber 15, 1800. ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 159. OFFICIAL DOCUMENTS 179 mitted on a merchant ship of Swedish Pomerania, for the purpose of using it in a hostile undertaking against two frigates in tlie roadstead of Barcelona. Being in complete acc»rd with His Cathohc Majesty in his viewis upon this new abuse of force and the common danger which such examples may lead to, Avith respect not only to neutrals but to the belligerents- themselves, flis Majesty, both because of his friendly relations with the Court of Spain and the neutrality of his flag, will see that the grievance is brought before the Court of London. In these demands, which involve principally the rights of the flag and subjects of Sweden, His Catholic Majesty will no doubt consider it just for the King to regard himiself as the principal party. In pur- suing his own interests, as His Majesty understands them, he will certainly not overlook the interests of Spain. Justice requires the res- titution of what has been wrongfully taken : His Majesty shall insist upon that, though he can not guarantee the success of his efforts. He will, in due time, communicate confidentially to the Court of Spain the stand that the English Government may take in the matter; but a just confidence on the part of His Catholic Majesty will undoubtedly leave to the judgment of His Swedish Majesty the form and method to be followed in this business, without requiring that it be accom- plished at any fixed time or that a report thereof be rendered. Spain, whiich, like the rest of Europe, is aware of the lengthy negotiations which Sweden has been carrying on at London with regard to the restitution of its vessels, can have no reason to- expect speedier justice in a cause where the restitution is to be made to an enemy. In general His Swedish Majesty does not admit any responsibility on his part for an act, the cause of which does not concern him. After the reports on the affair which the Court of Spain has had made ana in view of the circumstances which that Court itself admits as having been determined, that it should attempt to implicate the Government of Sweden and this entire nation was certainly not to be expected. It would be unfortunate if the wrongdoing of a third party should cause a rupture of the good relations which a number of direct dis- cussions during the present war have been unable to alter. There have been frequent unfortunate, occurrences, especially, it would appear, in Spanish ports : a Swedish ship taken in the very port itself — an in- tervening one — by the English ; another vessel pillaged and completely destroyed by the French at Alicante; several others seized by French privateers stationed at the entrance to the port of Malaga, have given 180 THE ARMED NEUTRALITY OF 1780 AND 1800 His Swedish Majesty many occasions to suggest and demand in a frien'dly way, with a view to the security of his commerce, that the Court of Spain see that its territorjr is respected. His Majesty would have congratulated himself on the outcome of his representations, if he had observed in his favor any indication of the energy which the Gov- ernment of Spain has recently displayed against him in a matter, in which he himself has nothing but grievances. Nevertheless the ap- parent uselessness of his demands has not caused His Majesty to de- part from the tone of moderation and equity, which becomes the inter- course of two friendly Courts and to which His Majesty still hopes to see the Court of Spain return, after the various unfortunate occur- rences in its ports. The undersigned. Chancellor of the Court, who has the honor to transmit these views to Chevalier Huerta, Envoy Extraordinary of His Catholic Majesty, in reply to his communication of September 17, takes advantage of this occasion, etc. (Signed) F. von Ehrenheim DsoTTNiNGHOLM, October 22, 1800. Letter of the Chancellor of Sweden to the Minister of Prussia con- cerning the British Violations of the Swedish Flag, November, 1800^ Having informed the King of the interest taken by His Prussian Majesty in the demand of the Court of Spain concerning the abuse of the Swedish flag by the English, the undersigned. Chancellor oif the Court, has been charged to express to Mr. de Tarrach the gratitude of His Majesty for the constant solicitude of the Court of Berlin with respect to the interests of neutral flags and His Majesty's entire con- fidence in that Court's point of view. The King was very much sur- prised at the way in which the Court of Spain publicly called Sweden to account on this occasion and at the threats which accompanied its communication. After all the vexations to which neutral flags have been exposed during the present war, this is the most oppressive ^■Translation. French text at Martens, Recueil de Traites, vol. 7, p. 162. OFFICIAL DOCUMENTS Igl measture which they have had to endure. In this way, placed con- stantly between offense and reparation, they must soon allow them- selves to be drawn into the war or disappear from all the seas where war is being waged. These truths being of suck moment both for Sweden and for the other neutral Powers, His Swedish Majesty could not assume, in general, any responsibility for the abusive use by belligerent Powers of the Swedish of which they may take possession. This principle seems to His Majest}' to be so well foiuided that he flatters himself with the belief that the Court of Berlin will give him all the support which justice and common interests would seem to require. It has t)een generally recognized up to the present time, amidst the many acts of violence which have been committed on both sides ; otherwise the war would have been general. If the Ottoman Porte, Russia, and England had placed such responsibility upon all the flags that they found at Alexandria; if thej' had demanded Egypt back again from the respective Governments, because merchant ships had been com- pelled to transport French troops to take it by surprise; if they had put forward demands and conditions in this peremptory form, all commerce and all neutrality would have been destroyed. Therefore His Majesty considered that the act of violence against the Swedish flag at Barcelona could not be treated otherwise than the acts of which he has had occasion to complain previously; and he has reserved the right to take up the wrongs done his subjects or his flag at such time and in such a way as his special situation may permit. His Majesty must not, however, conceal the fact that in the present case the injury that has been done to a friendly Power causes him the more regret because he considers the English capture as absolutely illegal and greatly desires to succeed, through his representations, in obtaining restitution. His Majesty will certainly leave no stone un- turned in his endeavor to bring about an arrangement, on which rests. quite imexpectedly, the continuance of friendly relations between Sweden and Spain; but he can not do at present for the two frigates what he has not hitherto done for his own convoys, nor hold up brighter hopes to Spain than to himself. The undersigned takes advantage of this opportmiity to, etc. (Signed) Von Ehrenheim 182 THE ARMED NEUTRALITY OF 1780 AND 1800 Extract from the Gazette of the Court of St. Petersburg regarding an Embargo on British Vessels in Ports of the Island of Malta, November 7, 1800^ We have been informed that the Island of Malta, which up to the present time has been in the hands of the French, has surrendered to English troops. It is not yet known, however, whether the regulation on this subject, dated December 30, 1798, has been complied with; namely, that upon the capture of this island it should be restored to the Order of St. John of Jerusalem, of which the Emperor of all the Russias is Grand Master. Consequently, it has pleased His Imperial Majesty, for the purpoise of maintaining his rights, to order that in all the ports of his empire an embargo shall be placed on the English vessels therein, until this convention shall have been fulfilled. First Note of Lord Carysfort to Count Haugwitz regarding the Occupation of Cuxhaven by Prussian Troops^ Berlin, November i6, i8oo. The instant Lord Carysfort, Envoy Extraordinary and Minister Plenipotentiary of His Britannic Majesty, learned that His Prussian Majesty was preparing to order a detachment of his troops to enter Cuxhaven, and that the reason which the public thought proper to as- sign for that measure, was the refusal given by the Government of Hamburg, to cause a vessel to be released, which, taken by one of the ships of war of His Britannic Majesty, had been compelled, in order to avoid the dangers of the sea, to enter that port, he thought it his duty to demand an audience of his Excellency Count Haugwitz, Min- ister of State and of the Cabinet, for the purpose of obtaining in- formation with respect to that affair. He received from his Excellency the assurance that the intentions of His Prussian Majesty were in no view hostile or contrary to the interests of Great Britain; but that the occupation of Cuxhaven had for its principal object the maintenance of the authority of His Prus- sian Majesty, in his character of chief and protector of the neutrality ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 155. ^Collection of State Papers, vol. 10, p. 198. OFFICIAL DOCUMENTS 183 of the north of Germany, and that it was conducted with the consent of the city of Hamburg itself. Lord Carysfort not being exactly acquainted with the circumstances under which the vessel in question found itself, deferred to another occasion, the observations which he might have wished to submit tO' his Excellency. He has novv grounds to believe, that, laden with contra- band goods, it was captured by one of His Britannic Majesty's ships as it was entering into the Texel ; that is to say, into a port belonging to the enemies of His jMajcsty; and that it was restored as soon as the officer who had the charge of it could be informed of the orders of his superiors. With respect to the occupation of the town of Cuxhaven by the Prussian troops, which must have been founded on particular con- ventions between His Prussian Majesty and the Senate of Hamburg, he does not think himself called upon to take part in that discussion ; but he feels himself authorized to claim, in favor of tlie subjects and vessels of the King his master, all the rights to which they have a just pretension in a neutral port belonging to a republic, whose connections with the States of His Majesty are vety ancient, and generally known; no convention made between the city of Hamburg and His Prussian Majesty being capable of invalidating or altering his rights. In consequence of these considerations he dares hope that His Prus- sian Majesty may still suspend the occupation of Cuxhaven, until the two Courts shall have the means of entering into- mutual explanations, more particularly since such occupation, in the actual circumstances, might give room to ill-disposed minds to attribute to His Prussian Majesty views not less opposite to the sentiments of justice and mod- eration which govern all his measures, than to the friendship and the good harmony which subsist between him' and His Britannic Majesty. At all events, it will not escape the wisdom and humanity of His Majesty, that the entrance of a numerous corps of troops into a vil- lage both poor and with a small extent of territory, would probably augment the miser)' of the inhabitants ; and that the oity o-f Hamburg having always possessed that place, so indispensably necessary to the preservation of the navigation of the Elbe, all which may trouble that l>ossession, derange ancient customs, and influence the pilots there at present to seek a refuge elsewhere, would strike a sensible blow at the commerce of all the countries of the north of Germany, and even at that of the States of flis Prussian Majesty. (Signed) Carysfort Ig4 THE ARMED NEUTRALITY OF 1780 AND 1800 Second Note of Lord Carysfort to Count Haugwitz regarding the Occupation of Cuxhaven by Prussian Troops^ BeeliNj November i8, iSoo. The undersigned, Extraordinary Envoy and Minister Plenipoten- tiary oi His Britannic Majesty, thinks himself obliged again toi address himself to his Excellency Count Haugwitz, relative to the intention of His Prussian Majesty, in taking military possession of Cuxhaven. When the undersigned had the honor of transmitting to his Excellency the verbal note of the 16th, it was not exactly known "that the Prus- sian vessel brought into that port had been restored." The fact being now certain, as well as the zeal manifested by the Senate of Hamburg to fulfil the wishes of the King, the surpirise and consternation excited from the moment when the orders for marching a detachment of troops were known, would be raised to their utmost height, if it were ascertained, that, notAvithstanding the complete satisfaction given to His Prussian Majesty on all the points respecting which he thought proper to complain, he should not appear less attached to his deter- mination of causing Cuxliaven to be occupied by his troops. In fact, it appears at first sight that this occupation would be so calculated to give the most serious alarms to all commercial nations, that, without alluding to the interpretations which calumny might be desirous of giving to the measure, strong hopes are entertained from the justice and moderation of His Prussian Majesty, for that reason only, that he will not come to the resolution of carrying it into effect. The undersigned would not, however, think he had executed his duty, should he neglect to represent to his Excellency the lively alarms which necessarily result from the uncertainty in which the affair re- mains. The reiterated assurances which the undersigned has received from his Excellency of the friendship and good wishes of His Prus- sian Majesty towards the King of Great Britain, do not allow him' to believe that any misunderstanding can arise between the two Courts; but he can not avoid thinking that the enemies of humanity and public tranquillity will endeavor to turn to their purposes the alarm which is generally difi'used, in order to scatter discord among the Powers, which will all unite and maintain the safety and independence of Europe at large. (Signed) Carysfort ^Collection of State Papers, vol. 11, p. 199. OFFICIAL DOCUMENTS 185 Order of His Majesty the Emperor of Russia relative to the Em- bargo on English Vessels, November 18, 1800^ The crews of two English vessels in the port of Narva having, at the approach of the military force instructed to arrest tiiem, in conformity v.'ith the decreed embargo, resisted, tired their pistols, and sunk a Rus- sian vessel, and thereupon having weighed anchor and taken flight, His Imperial Majesty has seen fit to order the burning of a vessel which had remained in that port. St. Petersburg, November 21. As a result of information received from Palermo, with regard to the part played in the taking of Malta by Italinskoi the present Cham- berlain, it has pleased the Emperor to have delivered tO' the members of the diplomatic corps residing at his Coort a note, signed by the Presiding Minister of the Department of Foreign Affairs, Count Ros- topsin and by the A'^ice Chancellor, Count Panin, of the following tenor : > His Majesty the Emperor of all the Russias has received de- tailed inf,ormation concerning the surrender of Malta, confirming the report that, in spite of repeated representations, both on the part of his Minister at Palermo and of the Ministry of His Sicilian Majesty, the English commanders have taken possession of Valetta and the Island of Malta in the. name of His Majesty the King of Great Britain, and that they have raised their flag there to the exclusion of all others. His Majesty, justly irritated by such a violation of good faith, has therefore resolved not to raise the em- bargo placed upon Engli.sh vessels in the ports of Russia until the stipulations of the convention concluded in 1798 have been fully complied with. Reply of Count Haugwitz to Lord Carysfort, November 20. 1800^ The undersigned. Minister of State and of the Cabinet, is author- ized by the orders of the King to completely tranquillize the anxieties iFrom the Court Gazette. Translation, r ranch text at Martens, Recueil de Traites, vol. 7, p. ISS. ^Collection of State Papers, vol. 11, p. 200. 186 THE ARMED NEUTRALITY OF 1780 AND 1800 and apprehensioiiis which my Lord Carysfort, Envoy Extraordinary and Minister Plenipotentiary of His Britannic Majesty, expressed to him in his two notes of the 16th and 18th of November. The Prussian vessel, the Triton, has, it is true, been restored to its owner; but the mode of release was in every respect as irregular as the proceedings which had previously talcen place with respect to it ; and after an ex- amination of all the circumstances relative to the incident which foimis the subject of complaint, there appears throughout the whole a mani- fest infraction of the principles of the neutrality of the north of Ger- many. It is this superior consideration, added to the unjust refusal of the magistracy of Hamburg, wliich dictated to the King the resolu- tion of causiing a body of his troops to occupy the- port of Cuxhaven, and the bailiwick of Ritzebiittel. This measure was executed the moment it was determined upon, and it is no longer capable of being revoked, the example of what has taken place, imposing on His Majesty the necessity of effectually watching over the maintenance of that neutrality which he has guaranteed to' his coestates. The King can not imagine that His Britannic Majesty, after participating, in his character oif Elector of Hanover, in the advantages and benefits of this happy neutrality, can conceive the smallest alarm at seeing a Prus- sian garrison enter into the port which England has fixed on as her point of communication with the north of Germany. Being thus placed under the immediate guarantee oi the King, it will be the more efifectually put out of the reach of all violation, and the troops of His Majesty will have no other duty to perform than that of causing the laws O'f good order and equity to be respected. The utmost confi- dence may be placed in the prudent dispositions of the reigning Duke of Brunswick, who is invested with the command of the line of de- marcation. But, if more particular assurances be requisite upon this subject, the King feels a pleasure in giving them by the present 'communication to His Britannic Majesty, and in declaring to him, in express and positive terms, that the present order of things will in no respect interrupt the freedom of commerce and navigation in the port of Cuxhaven ; nor, above all, the continuation of the correspondence with England. On the contrary, the officer commanding the troops of the King garrisoned in the bailiwick of Ritzebiittel, will make it his duty to give it every possible facility. On the whole,- the proceeding which the King has, from necessity. OFFICIAL DOCUMENTS 187 been obliged to follow, does not admit of any equivocal interpretation. It has no other object than the maintenance of the system of which he is the author and defender; and this object shall not be exceeded. His views and conduct have procured him the confidence of all Europe, and they never will be found inconsistent ; and thoug-h it is not to be anticipated that the other Powers will be disposed to misconceive the purity of bis views in the present case, yet His Majesty reserves to himself the privilege of explaining himself further and in a suitable manner to those who may be entitled to such explanation. (Signed) Haugwitz Proclamation of the King of Prussia, November 23, 1800, announc- ing the Occupation of Ritzebiittel and Cuxhaven^ By express order of His Prussian Majesty, Frederick William IH, my most gracious sovereign, announcement is made that the temporary occupation of the District of Ritzebiittel and Cuxhaven by the troops which I command and which are a detachment of the army of ob- servation under orders to protect the armed neutrality of the north and of Germany, has been caused by the capture oif a Prussian ship. The difference arising from this capture has at length been arranged after certain customary explanations and protestations of friendship. But as the march of the troops, which became necessary as a result of the lack of success O'f the first explanations, had been ordered and was already partially executed. His Prussian Majesty deemed it ad- visable to proceed with the execution of the orders and to take posses- sion of Ritzebiittel and Cuxhaven, in order to prevent similar disputes in future, and to make sure, for the greater security and observance of neutrality, of a place so important and so necessary to the States below the line of demarcation. Such is the only object of the troops under my orders. As their head, my first desire is to preserve public security and tranquillity, particularly with regard to the system of neutrality ; and not only will ^Translation. French text at Martens, Recueil de Trait es, vol. 7, p. 165. 188 THE ARMED NEUTRALITY OF 1780 AND 1800 I uphold with all my forces the authority of the magistrates appointed by the city of Hamburg, but I shall also protect the rights of all in- habitants or foireigners v/ho come here in the course of their business, and especially in their commerce and navigation, which sihall not be in- terrupted in the slightest degree, but, on the contrary, better protected and encouraged, without the least alteration in the constitution and practices of the district which I am occupying. All persons, therefore, who inhabit or happen to be in this district, are enjoined to show toward the troops that I command the saine friendly regard and bearing as these troops have toward them, and thereby avert the inevitable fatal Consequences, which would result from the opposite attitude. Explanatory Answer to the Observations on the subject of the Capture of Neutral Ships, December 16, 1800^ The late misunderstanding between the Danish and British Govern- ments is now happily removed by a convention alike satisfactory tc both nations, and that harmony again restored between the two Courts, which for a moment had been interrupted. The scandalous reports that this interruption gave birth to, are now refuted by evident facets; the fantastical notion of great and extaisive pilans, formed by the northern Powers for diminishing the trade and naviigation oif Great Britain, has vanished ; and we see, in the clearest manner, the fair and honorable conduct of a State, which certain persons have not been ashamed rashly to accuse of assisting a commerce carried on contrary to treaties, by affording the protection of its ships of war tO' vessels laden with contral)and. Of the six ships which were captured under convoy of the Freya frigate, the cargoes were most minutely examined ; the result, however, was, that not only the smallest particle of contra- band commodities could be discovered, but not even the least proba- ^Collection of State Papers, vol. 11, p. 180. This paper was written in an- swer to the preceding publication issued by a noble Lord. It is of high im- portance, as it discusses the great question which now interests the public. It has only been circulated in private, but it is supposed to carry with it an authority almost official. OFFICIAL DOCUMENTS 189 bility of any hostile or illicit interest being mingled in the property; bvtch an event was, doubtless, but little expected by those persons who have been already alluded to; it disappointed their wishes, it baffled their endeavors to disseminate the seed of national hatred and rancor amongst their countrymen, and, if possible, tO' extend the first dissatis- faction to an irremediable breach of amity, when perhaps the public disasters might afford them tlie opportunity of gratifying their private animosities or ambition ; the reconciliation, on the comtrary, which has taken place, will unite still closer two nations, between whom an old and unren^itting friendship has subsisted ; more especially, if to tliis public union be superadded a mutual confidence between the subjects of the respective countries ; and if those impressions be reiraoved, whicii such violent accusations frequently repeated, and even under the sanc- tion of important names, must necessarily have left behind. Amongst the various publicatioins which have appeared lin England u]X)n this subject, some observations inserted in the London Chronicle, and other papers, and universally understood to have been written by a nobleman, who not only since resided at Copenhagen in a diplomatic character, are remarkable, as well from the implacable tone in which they are delivered, as on account of the magnitude of the charges con- tained in them. The reasons which might induce that noble Lord to so violent a display of hatred against Denmark, are pretty generally known, or it could not but create surprise in his readers, that such a stream of invectives should flow from the pen of a gentleman who had been lately invested with the high and respectable office of representing his sovereign at the Court of that very nation against which, though still in alliance, his invectives were directed ; of a gentleman, whose situation at that Court must niecessarily have made him acquainted with the many violations of neutral commerce, of which, either as the natural consequence of the principles adopted by the British Govern- ment, or as transgressions of their orders, such frequent and well- founded complaints had been made; lastly, oi a gentleman w^ho could not be ignorant of the many regulations which the Danish Government had made to prevent abuses, and which, had they been suffered to pass unnoticed, might indeed have rendered it questionable, how far the neutrality and intentions of Denmiark were sincere. It would have been more honorable for his Lordship, more consistent with the public character which he had sustained, to have explained any misunder- standings that had arisen, to have soothed the irritation of men'? 190 THE ARMED NEUTRALITY OF 1780 AND 1800 minds, and to have spoken the language of peace, at the time when a dangerous spark, fallen amongst the nations of the north, threatened to extend still further that general conflagration in which Europe was involved; his Lordship, however, has thought proper to display a very different way of thinking. We will now examine accurately the charges contained in the above- mentioned publication. It is not of the actions of individuals of which he is complaining; it is oif the general sentiments of a nation, of the intentions of its governiment: these are the objects of his attack. He accuses the northern Courts, and particularly that of Denmark, of looking with an eye of jealousy and envy at the commercial prosperity of Great Britain ; he represents the Danes as a nation at semi-warfare with England, under the mask O'f neutrality ; he warns his countrymen to be on their guard against "stiletto attacks and secret blows from beneath the neutral cloak of Denmark and .Sweden" ; he then goes on to assert, that "the illicit practices of neutrals assume the aspect of an hostile disregard to common usage and the law of nations, and appear to be coiuntenanced by those very authorities, whose duty it is tO' check and suppress them" ; in fine, he holds out Denmark in particular, "as the standard of the most unwarrantable proceedings ever ascribed to a nation in amity with His Majesty." It is hard in-nocently to suffer under the pressure of circumstances, buit one may sustain mere losses and be silent ; it is afflicting to see one's property suddenly exposed to accidents, which threaten tO' anni- hilate at a blow those fruits of our labor which have been slowly and gradually acquired; an open attack rouses one's powers tO' resistance, and constancy will always find, in struggling for a good cause, means and resources which the assailant never thought of ; but the most pain- ful of all trials is to find one's self, when suffering, misrepresented and abused ; nor can it be denied that his malice is the most effective, who, working upon the irritated passions, excites suspicion and hatred in the minds of nations which were, till then, united in mutual bonds of friendshiip and alliance. It is not the intention of these sheets to ren^eiw the memory of an affair which should have rendered the author of the observations more cautious in what he published ; much less do we propose tO' defend the actions of individuals, whose punishment fif they have really given cause for complaint) belongs solely to courts of justice; on the con- trary, we shall confine ourselves to what the noble Lord has been OFFICIAL DOCUMENTS 191 pleased to assert respecting the sentiments and general conduct of the Danish Government, taking, at the same time, the opportunity thor- oughly to examine these pretended plans of commercial aggrandize- ment, which he so roundly accuses our nation of endeavoring to carry into effect. With respect to the supposed jealousy of Denmark and her govern- ment, at the commercial. prosperity of Great Britain, it is so totally forgotteni, that, even in the course of the present war, by a new regu- lation of the customs, a variety oi foreign articles, the impo'ritation of which was till then prohibited, are now permitted to be brougiht in, and of consequence a new channel of trade opened tO' other nations. Can it have escaped the reflection of any impartial observer, that such a change of comimercial regulations is the very reverse of any plan on the part of Denmark to injure or diminish the trade of her neighbors ; or "that the English, whose ships are admitted to equal privileges with those of D'anish subjects themselves, and whose industry and enter- prise are so much greater, must be the principal gainers by this altera- tion ? Upon the question, therefore, of the principles and spirit of the Danish Governiment, it is but reasonable if we insist upon boing tried and adjudged by such measures. With respect to those abuses of neutrality, which the noble Lord does not hesitate to represent as countenanced and supported by the Danish Government, it can not be denied, that some particular persons have, by their conduct, given cause for a reasonable suspicion of en- deavoring, in their connections with foreigners, improperly tO' convert the laiws and treaties of their country to their private advantage. The question however is, whether the Danish Government (whose dutj it never can be pretended to be, to put arbitrary bounds to the lawful commercial profits of its subjects) has ever taken any steps towards preventing such abuses as anight justly supply occasion for complaint; whether, both before and after the commencement of the present war, laws have not been published, and other measures taken, the grand object of which was to preserve the trade of Denmark within the limits prescribed by treaty, by checking the fraudulent designs of certain un- principled individuals; and, finally, whether those offenders, whose transgressions have com^e to the knowledge of the magistrates, have been brought to public justice, and punished as they deserved? Immediately upon the commencement of maritime operations in the present war, the necessary qualities and duties of those persons who 192 THE ARMED NEUTRALITY OF 1780 AND 1800 were desirous, either as ship-owners or masters, tO' enjoy the advan- tages which the happy neutrahty of Denmark seemed to offer, were , most minutely and accurately defined by two royal ordonnances, dated 22d and 23d of February, 1793. According to the rule laid down in these ordonnances, every person who solicited a royal piassport must be a Danish citizen, settled within the King's dominions, that is to say, having a fixed abode, the domicile and residence, if married, of his family, and if not, of himself, when not occasiooally absent upon business ; be must ateo', if thus qualified as a citizen, be provided with a certificate from the proper magistrates, stating his declaration upon oath before them, either tliat the ship is solely his property, or, if there be ooowners, that every one of them without exception' is a Danish subject; together with a clause also upon oath, that the ship is not laden with any articles declared to be contraband by any treaty, nor with goods belonging to any of the belligerent Powers or their sub^ jects. It is not till after the fulfilment of all these conditions, that a passport can be issued, which even then, in order to prevent all possible abuses by a second expedition, is valid only for a single voyage, that is, till the return of the ship to some port in Denmark. It must be fur- ther observed, that all those vessels which are intended to sail beyond Cape Finisterre, must be provided with other passports, grantable to none but such as have already been Danish citizens for the space at least of three years. I shall pass over the further obligations binding on ship-owners, as to other needful documents for their vessels ; such are the builder's brief, bill of sale, measuring-bill, muster-roll, etc., etc., and proceed to a few necessary explanations on the two subjects of contraband and admission to the rights of burgher or citizen. Upon the breaking out oi the present hostilities, a very considerable number of persons delivered in petitions, praying to be admitted to the privileges of the burghership, some with intent to settle in a country exempted from the horrors O'f war; others, that, in their re- spective characters of mariners, or ship-masters, they might again ob- tain employment in that way of life in which they had been educated, and which could now no longer be had in .their native countries : this was more especially the 'case in His Maje.sty's German dominions, which being situated nearer to the scene of war, seemed, upon that account, to require more particular attention. Tlie precaution, there- fore, which had been taken by the ordonnances of the 22d and 24th of December, 1796, by which it was decreed, that, besides the condi- OFFICIAL DOCUMENTS 193 tions already detailed, no married man should be admitted to the rights of a burgher, whose family resided in any other place than that in which he was a candidate for the burghership; and that every captain or master of a vessel should find undeniable security tO' the amount of 200 rix-dollars, which seairity was not to be released till the ex- piration of five years ; a space of time considered as sufficient to de- termine whether he entertained a real intention oif settling forever within the territories of His Danish Majesty. It was further directed, in order to prevent foreigners from settling in the villages- or in the country, where they might easily withdraw themselves from the eyes of the police, that no stranger should be permitted tO' exercise the pro- fession of a mariner, unless he becajme a burgher of some commercial town or other place entitled to the same privileges. When these facts and ordonnances are compared with what the noble Lord has been pleased to advance as to the facility of Danish burgihership, asserting, "that the privileges of being admitted to the rights of a burgher in each Danish oity, is sold to the first comer, without any attention being paid whether the person is a Cherokee Indian, Mandingo negro, En- glish or Dutchman," one can not but be led to^ suspect that the accusa- tion is founded on something else than mere ignorance of the real situation of aflfairs. Nor less extraordinary is the charge which the noble Lord has ven- tured to make mth respect to contraband. ''The harbors," says he, "of Carthagena, Cadiz, Ferrol, Toulon, L'Orient, Brest, and Rochefort, have received all their naval stores from the hands of neutrals" : and then he goes on to impeach the Danish flag, as taking the principal share in this illicit commerce. It is only the consummate assurance with which this accusation is made by the pen of a man oif his rank and office, that can, perhaps, for a moment procure it credit with a few of his countrymen. If, indeed, the Government of Denmark has, upon any point, made use O'f peculiar precautions to secure itself from blame or suspicion, it has been upon this. Exclusive of the rules laid down in the afore-mentioned royal ordonnances, another decree was promulgated on the 28th of March, 1794, under a supposition that some abuses had taken place; in this the exportation of every species of contraband to a belligerent State is severely prohibited: and in case of the shipment of such articles for neutral ports, the ship-owners are bound to deliver to the proper magistrates certificates of the arrival and unloading of these articles at the respective neutral ports to which 194 THE ARMED NEUTRALITY OF 1780 AND 1800 they had been avowedly destined. We will venture to assert, that no commercial nation ever before adopted such strong and effectual means to avoid and secure itself from any reproach of this sort ; and we defy, in the face of all Europe, the noble Lord, and all our other open and secret enemies, to produce a single fact to prove, that from this period there has been exported from any Danish port any contraband of war destined to any port of a belligerent. Had his Lordship been ac- quainted with such an instance, he had the means of preferring his ' complaints in the name of his nation, with the most positive certainty of obtaining all possible satisfaction. Such an odious insinuation, therefore, whether originating from the noble Lord himself, or from some other person, of whose secret malice he may not have been aware, thrown out too in general expressions, without proof, without in- stancing a single fact, and at a time when fears and anxieties pervaded every bosom;, can not but render the motive tOi it extremely suspicious. The ordonnance of July 25, 1798, concerning the merchantmen from 'Fleckeroe, contained also the strictest regulations that can well be de- vised for preventing the secret conveyance of military contraband by the Danish merchant ships sailing under convoy : the result has fully demonstrated the efficacy of these measures; and the severity which has been displayed in punishing every offense against these regula- tions, when piublicly denounced and legally proved, must convince every impartial observer, that the Danish Government was seriously resolved not to siiifer the violation of its laws. The partners in a mer- cantile house in Copenhagen, against whom an information was laid at the suit oi the King's attorney, for an abuse with respect to royal sea passes, have long since been exiled : another person, a ship-owner, ■x^'ho had sold his name as a cover for vessels belonging to belligerents, was pvmished with banishment, his naane rendered infamous, and his property confiscated ; and even at this moment several prosecutions of the same nature are pending before the tribunals. So much by way of reply to the naked assertion of the noble Lord, that any illicit and fraudulent practices of neutralization are favored and supported by those very authorities upon whom it is incumbent to prevent the flag from being abused, and to watch over the lawful course O'f commerce. But our author, who is, it seems, fully instructed in the secret springs which actuate the northern Powers, and Denmark in particular, sup- plies us with some perfectly new, and indeed unexpected illustrations. Great plans, says he, were formed for monopolizing the trade and navi- OFFICIAL DOCUMENTS 195 gation of the Dutch into Danish hands ; for covering the trade to the French and Dutch W^est India settlements, and converting it to their own profit: the whole traffic of the Mauritius was carried on through Danish hands; the settlement at Batavia was alone, hy their means, preserved to the mother country; the hostile design of interrupting the commerce of Britain became prevalent throughout the nation ; and the Government found itself as unable to resist the temptation of levy- ing taxes and imposing duties upon this commerce, as the merchants were of monopolizing it. The strong and obvious reply which everybody acquainted with the subject m,ust make to the accusation, is this, that the Danish Govern- ment never has interfered, nor does it now in the smallest degree, with the comanerce of its subjects; it acknowiledges it to be its duty to pro- mote the prosperity of the country by every proper support on its part ; to protect every fair branch of industry ; and, as far as may be in its power, to promote every natural and accustomed trade, and secure it from molestation ; but as toi speculations, it leaves these entirely to tl:ie individuals who make it their business to avail themselves of times and circumstances, accoTding to their skill : in such cases it only inter- feres when compelled tO' act either as a judge of the actions of its sub- jects, or as their protector against unjust attacks. With respect to the revenues which the Danish Government derives from the trade car- ried on by its subjects, it is indeed extraordinary how these can be an object of reproach in the mouth of the subject of a country, which from her own commerce, extended over every ocean, collects the most considerable part of her revenue, and the most efficacious means of greatness. In Denmark these duties are so moderate, that they may be considered as barely furnishing the supply necessary for those various charges of the State, which the conduct of the belligerents, and the precautions requisite for securing trade from absolute destruc- tion, have occasioned; and the Government has always been willing to forego a part the moment it appeared likely to produce misunder- standing or inconvenience; such, for instance, was the revoking the liberty granted of carrying freights from the East Indies to ports in Europe (a privilege then used by only four vessels), as soon as it was apprehended that its further 'use might give rise to abuses, and cause complaints on the part of the belligerent Powers : such, also, was its putting a stop to the distribution of those passports, which, in a few instances, had been granted to Danish ship-owners in Europe for such 196 THE ARMED NEUTRALITY OF 1780 AND 1800 vessels as they had given instructions to purchase in the East Indies. But to return to the commercial projects pretended by our author to have been formed by Denmark, and to the question of whether there really does exist a plan for monopolizing the French and Dutch East and West India trade: I can not but think such an accusation rather singular from an EngHsh statesman, who certainly ouglit not to have been ignorant that his countrymen, even before his publication came out, had rendered the very idea of such a design impossible, by seizing on the greatest part of the French and Dutch settlements both in the East and West Indies: such a plan too must have been discovered by efforts in some degree at least corresponding with the greatness of the undertaking. If, therefore, the case be otherwise, the noble Lord must forgive us for treating the suggestion as altogether a chimera of his own brain, and the facts which follow wiH throw some light upon the subject. According to the best statistical accounts, the French trade in the West Indies before the revolution, employed every year 600 vessels, each, upon an average, of 250 tons : the Dutch trade to Surinam, and the other West India settlements, required every year about l07 ves- sels. The Dutch East India Company sent every year to Batavia be- tween 20 and 30 large vessels ; and the French trade to the Mauritius, Bourbon, and the coast of Guinea, employed about 180 vessels. It might be foreseen that a part of this trade, during a war between the great maritime Powers, would fall into neutral hands ; and a nation, which owes its flourishing condition to the extent of its trade, can not take it amiss that the merchants of other countries also know how to make use of conjunctures: but what proportion do our commercial undertakings bear with respect to the plans supposed to be formed by us? For the Danish trade to the West Indies, only the following pass- ports have been distributed throughout all the Danish dominions : In the year 1797, to vessels bound for St. Croix, 23 ; for St. Thomas, 21 ; for St. Croix and St. Thomas together, 25 ; for the West Indies, without mentioning any place in particular, 5 ; for foreign settlements in the West Indies, 12. In the year 1798, for St. Croix, 26; for St. Thomas, 22; for St. Croix and St. Thomas together, 18 ; for the West Indies in general, 1 ; for foreign settlements in the West Indies, 9. In the year 1799, for St. Croix, 28; for St. Thomas, 18; for St. OFFICIAL DOCUMENTS 197 Croix and St. Thomas together, 19; for the West indies in general, none; for foreign settlements in the West Indies, 10. Returned froim the East Indies, besides those ships that belong to the East India Company, and which only carry on a direct trade to the settlements belonging to Denmark: In the year 1797, eleven vessels for private account, five of which were from the Danisih settlements at Tranquebar, and in Bengal: the other six from the different European settlements at the Cape of Good Hope, and east of it ; In the year 1798, thirteen ships for private account, four of which were sent from the Danish, the rest from other European settlements. In the year 1799, likewise thirteen ships for private account, four of which also were from the Danish settlements. If to these be added one single vessel which has unloaded a cargo, chartered in the East Indies upon freight to a port without the Danish dominions, this is a complete list O'f all the vessels returned from the East Indies for the account of private owners during the above-men- tioned years. ^ The comparison of tihis list, with the many hundred vessels which were occupied in the French and Dutch East and West India trade, will fully enable the reader to judge of the reality of the plans and operations of commerce, said, by the noble Lord, to be adopted by us, as well as of the amount of our profit, greatly lessened by the fre- quent captures of many valuable cargoes. If, at the same time, it is considered that a trade to^ all the different 'corners of the world occu- pies the speculations of Danish merchants even in the most profound peace, and has occasioned a proportionable number of regular ex- peditions, the increase of our commerce in these branches, the direct trade to our own settlements being deducted, will hardly justify any jealous apprehension, or be looked upon as an encroachment Upon the commerce of Great Britain. That the charge of hostile endeavors to diminish the trade of Great Britain is not fotmded upon real fact, or upon any injuries done to that country, is fully demonstrated by taking a general view of its traffic. The mercantile fleet of Great Britain covers every sea; and in every session of Parliament, the Minister himself congratulates his nation on account of the flourishing state of its commerce, which, during the course of the present war, has arrived to a height beyond any example of preceding times. The value of the import trade of 198 THE ARMED NEUTRALITY OF 1780 AND 1800 Great Britain has arisen from 17,804,024£ to which it amounted in the year 1787, to above 24 milHons, which was the amount in the year 1798. The export, which in the year 1787 amounted to 16,870,114£ was in the year 1798 announced to- be 33,655, 396i. In the year 1792, 284 vessels arrived in the river Thames from the British settlements in the West Indies. In the year 1798, their number -was increased to 347. The maritime trade of London has, since the year 1792, accord- ing to accounts laid before Parliament, been augmented by 1,000 ves- sels from foreign ports, and the trade of the whole coiuntry in propor- tion. After such proofs, it must be plain in what light complaints of encroachments upon British commerce are to be considered. Denmaii-k has not been so fortunate in the increase of her commerce, and in the undisturbed enjoyment of those advantages, to which her neutraility (a neutrality not maintained without many sacrifices) ought justly to have entitled her. If, indeed, her trade, during the first years of the war, was considerably augmented, those advantages have, how- ever, of late remarkably decreased, and some sources have been en- tirely lost, partly by occurring circumstances, and partly by the sys- tem adopted by Great Britain. The shipping of Denmark has O'f late evidently diminished. The rigorous measures of the British Govern- ment ; the extended instructions given to their ships of war and priva- teers, joined to the frequent and vexatious conduct of the latter in even going beyond these instructions; the assumed, authority of the tribunals, and, in particular, the unwarrantable proceedings of the inferior courts of admiralty out of Europe, together with the slow progress of suits in the superior courts of justice : these, and. other circumstances, the recital of which would exceed the limits of this answer, have not failed, by their influence, to destroy our trade in the first moments of its prosperity. By declaring even principal ports to be in a state of blockade, during the last two years. Great Britain has stopped the most considerable channels of Danish commerce, which is not so much founded on mere speculation, as on the export and import of miutual necessaries. In cases of blockade, the rights of the blockading- Power have received an extension, which is neither founded on common usage, nor on the law of nations. Is it reasonable that a mere declaration should be suffi- cient to repel all neutral ships from the entire coasts of a countrv. even when there is not an armed vessel to be seai for the purpose of effecting' the blockade? Nay, for a neutral to have left a port blocked OFFICIAL DOCUMENTS 199 up in this manner, and at which she had arrived before that declara- tion, has been esteemed a crime to be punished with condemnation. Between the declarations of all the Dutch harbors being in a state of blockade, and the end of August in the present year, 120 Danish ves- sels have been captured by the Rnglish : some of which are condemned, others restored, and several still waiting judgment in the first instance. Besides these, not less than 60 undecided cases are pending in the court of appeals : the dates of some of these are very old, and they are all of importance. It is, moreover, almost grown into a rule, that when the neutral owner, after such a long delay, which is quite con- trary to treaty, has at length obtained judgment in his favor, neither the expenses nor interest are to be paid to him. I shall remain silent as to the many injustices committed, as well by privateers as by the tribunals in the West Indies, where cargoes, consisting of Danish produce, in vessels, of which there was not the smallest doubt of their being Danish, and bound for Danish settlements, have been confiscated without the least compunction, and that on the most unreasonable grounds. This may be sufficient to prove, that Denmark, muoh rather than Great Britain, is entitled to complain of encroachments on hei trade, and of commercial jealousy. What the noble Lord finally has been pleased to say O'f the political strength of Denmark, lies not within the bounds of this essay. He xnay, however, rest assured, that Denmark, in the wisdom of her Gov- ernmenit and in the patriotism of her subjects, will always find effec- tual means to defend herself and maintain her rights ; and that this brave nation, on whom he endeavors to throw an odium, does not yield in patriotism and fidelity to the Government of any other nation upon earth. December i6, i8oo. Convention between Russia and Sweden for the Reestablishment of an Armed Neutrality, December 16, 1800^ In the Name of the Most Holy and Indivisible Trinity : The freedom of navigation and security of commerce of neutral ^Translation. French text at Martens, Recueil de Traites, vol. 7, p. 173. Ac- cepted and ratified by His Swedish Majesty on December 20, and by His Im- perial Majesty of all the Russias on December 8/20 of the same year. 200 THE ARMED NEUTRALITY OF 1780 AND 1800 Powers having been compromised, and the principles of the law of nations having been disregarded in the present naval war, His Majesty the King of Sweden and His Majesty the Emperor of all the Rus- sias, led by their love of justice and by an equal solicitude for all that may contribute to public prosperity in their States, have deemed it advisable to give a new sanction to the principles of neutrality, which, indestructible in their essence, require only the cooperation of the governments interested in their maintenance to make them respected. With this view His Imperial Majesty has manifested, by the declara- tion of August 15 to the Courts of the North, to whose interest like- wise it is to adopt uniform measures under similar circumstances, how greatly he has at heart the reestablishment, in all its inviolability, the right common to all peoples to navigate and to carry on commerce freely and independently of the temporary interests of belligerent par- ties. His Swedish Majesty shares the desires and sentiments of his august ally, and a happy likeness of interests, strengthening their mutual confidence, has determined them to reestablish the system of armed neutrality, which was followed with such success during the last American war, by renewing its beneficent maxims in a new con- vention adapted to present circumstances. To this end, His Majesty the King of Sweden and His Imperial Majesty of all the Russias have appointed as their plenipotentiaries, to wit : His Swedish Majesty, Baron Court of Stedingk, one of the Lords of the Kingdom of Sweden, his Ambassador Extraordinary to His Impefial Majesty of all the Russias, Lieutenant General in his Armies, Chamberlain of the Queen Dowager, Colonel of a Regiment of Infantry, Chevalier Commander of his Orders, Grand Cross Chev- alier of his Order of the Sword, and C'hevalier of the French Order for Military Merit: and His Imperial Majesty of all the Russias, Count Theodor de Rostopsin, his Privy Councilor, Member of his Council, Principal Minister of the College of Foreign Affairs, Post- master General of the Empire, Grand Chancellor and Grand Cross of the Sovereign Order of St. John of Jerusalem, Chevalier of the Or- ders of St. Andrew, of St. Alexander Newsky, and of St. Anne of the First Class, of the Orders of St. Lazare, of the Annunciation, of St. Ferdinand, of St. Maurice and of St. Lazare, of St. Ferdinand and of St. Hubert: who having exchanged their respective full powers have agreed upon the following articles : OFFICIAL DOCUMENTS 201 Article 1 His Majesty the King of Sweden and His Majesty the Emperor of all the Russias declare their desire to see to the strictest enforce- ment of the prohibition of commerce in contraband on the part of their subjects with any of the Powers whatsoever now at war or that may hereafter enter into the war. Article 2 To avoid any ambiguity and any misunderstanding regarding what should be considered contraband, His Majesty the King of Sweden and His Imperial Majesty of all the Russias declare that they recognize as such only the following articles, to wit : cannon, mortars, firearms, pistols, bombs, grenades, bullets, balls, guns, gun flints, fuses, powder, saltpeter, sulphur, breastplates, pikes, swords, swordbelts, cartridge- boxes, saddles and bridles, except such quantities thereof as may be necessary for the defense of the vessel and of those composing its crew ; and all other articles whatsoever not here enumerated shall not be considered war or naval munitions, nor shall they be subject to confiscation, and consequently they shall pass freely and shall not be subjected to the slightest difficulties. It is also agreed that the present article shall in no way impair the special provisions of previous treaties with the belligerent Parties, by which articles of a similar nature may have been reserved, prohibited, or permitted. Article 3 All that is to be considered contraband having thus been determined and excluded from the commerce of neutral nations, in accordance with the terms of the preceding article. His Majesty the King of Sweden and His Imperial Majesty of all the Russias intend and desire that all other trade shall be and remain absolutely free. In order to safeguard adequately the general principles of the natural law, of which freedom of commerce and navigation, as well as the rights of neutral peoples, is a direct consequence. Their Majesties have resolved to leave them no longer at the mercy of an arbitrary interpretation that may be influenced by isolated and temporary interests. To this end they have agreed: (1) That all vessels may navigate freely from port to poi-t and along the coasts of the nations at war. 202 THE ARMED NEUTRALITY OF 1780 AND 1800 (2) That effects belonging to subjects- of the said Powers at war shall be free on board neutral vessels, with the exception of contra- band goods. (3) That to determine what constitutes a blockaded port, none shall be considered such except a port where the attacking Power shall have disposed and stationed its vessels sufficiently near to render access thereto clearly dangerous, and that no vessel sailing toward a blockaded port shall be considered as having contravened the present convention, unless, after having been notified by the commanding ofHcer of the blockading fleet of the condition of the port, it shall attempt, either by force or by ruse, to enter therein. (4) That neutral vessels may not be arrested except for just cause and for self-evident acts ; that their cases shall be tried without delay ; that the procedure shall always be uniform, prompt, and legal; and that in every instance, in addition to the indemnities granted to those who have suffered loss, without having been at fault, complete satis- faction shall be rendered to the flag of Their Majesties. (5) That the declaration of the commanding officer of the vessel or vessels of the Royal or Imperial Navy, which accompanies the convoy of one or more merchant ships, that his convoy carries no contraband goods, must be considered sufficient, and that thereupon there shall be no occasion to visit either his vessel or those of his convoy. The better to ensure to these principles the respect due to stipula- tions dictated by a disinterested desire to maintain the inalienable rights of neutral nations, and to give further proof of their devotion to and love of justice, the high contracting Powers, hereby bind them- selves most solemnly to issue new and strict orders forbidding their captains, whether of ships of the line or of merchant ships, to load, hold, or conceal on board any articles which, by the terms of the pres- ent convention, might be considered contraband, and to see, respect- ively, to the execution of the orders that they shall have published in their admiralties and wherever else it may be necessary, with a view to which the ordinance, which shall renew this prohibition under the severest penalties, shall be printed at the end of the present act, in order that there may be no allegation of ignorance thereof. z\rticle 4 To protect the commerce of their subjects in common on the basis of the principles hereinbefore laid down, His Majesty the King of OFFICIAL DOCUMENTS 203 Sweden and His Imperial Majesty of all the Russias, have seen fit to equip separately a number of war-ships and frigates proportional to this object, as the squadrons of each Power will have to take their station and to be used for such convoying as its commerce and its navigation may require, in conformity with the nature and the quality of the trade of each nation. Article 5 To prevent the annoyances that may arise as the result of the bad faith of those who make use of the flag of a nation to which they do not belong, it is agreed to lay down as an inviolable rule that, for a vessel to be considered as the property of the country whose flag it flies, its captain and half of its crew must belong to that country, and it must have on board papers and passports in good and due form ; but any vessel that shall not observe this rule and that shall con- travene the published ordinances to this effect, printed at the end of the present convention, shall lose all right to the protection of the contracting Powers, and the government to which it belongs shall bear alone the losses, damages, and annoyances that may result therefrom. Article 6 If it should happen, however, that the merchant ships of either of the Powers should be in waters where the war-ships of the same na- tion are not stationed and where they could not have recourse to their own convoys, then the commanding officer of the war-ships of the other Power must, if requested, give them, sincerely and in good faith, the assistance that they may need, and in such case, the war- ships and frigates of either of the Powers shall act as a support and protection to the merchant ships of the other; it being understood, however, that those asking such aid shall not have engaged in any commerce that is illicit or contrary to the principles of neutrality. Article 7 This convention shall have no retroactive effect, and consequently no action shall be taken with respect to differences which may have arisen before its conclusion, unless it is a question of continuous acts of violence, tending to establish an oppressive system for all the neutral nations of Europe in general. 204 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 8 If, in spite of the most scrupulous care on the part of the two Powers and in spite of the observance of the most complete neutrality by them, merchant ships of His Majesty the King of Sweden or of His Imperial Majesty of all the Russias should be insulted, pillaged, or taken by the war-ships or privateers of either of the Powers at war, then the Minister of the injured party to the government whose war-ships or privateers shall have committed such acts shall make representations, demand the seized merchant ship, and insist upon suitable indemnification, never losing sight of the reparation due for the insult to the flag. The Minister of the other contracting Party shall join with him and support his complaints in the most energetic and effectual manner, and they shall thus act in concert and in per- fect accord. If justice should be refused on these complaints, or if the rendering of justice should be postponed from time to time, then Their Majesties shall employ reprisals against the Power so refus- ing, and they shall take counsel with each other as to the most ef- fectual method of carrying out such reprisals. Article 9 If either of the two Powers or both of them, because of or in con- tempt of the present convention, should be disturbed, molested, or at- tacked, it is likewise agreed that they shall make common cause for their mutual defense and shall work and act in concert to secure full and complete satisfaction both for the insult to their flag and for the losses caused to their subjects. Article 10 The principles and the measures adopted by the present act shall be applicable also to all naval wars, which may unfortunately arise to disturb Europe. These stipulations shall therefore be regarded as permanent and shall constitute the rule for the contracting Powers in the matter of commerce and navigation, whenever there shall be occasion to pass upon the rights of neutral nations. Article 11 The principal aim and object of this convention being to ensure general freedom of commerce and navigation. His Majesty the King OFFICIAL DOCUMENTS 205 of Sweden and His Imperial Majesty of all the Russias agree and bind themselves in advance to permit other neutral Powers to accede hereto, and that by adopting the principles they shall share the obliga- tions as well as the advantages. Article 12 In order that the Powers at war may not allege ignorance of the arrangements concluded between their said Majesties, they agree to bring to the knowledge of the belligerent parties the measures which they have together adopted, which are all the less hostile because they are not detrimental to any other country, for they tend solely to protect the commerce and navigation of their respective subjects. Article 13 The present convention shall be ratified by the two contracting par- ties, and ratifications thereof shall be exchanged in good and due form within six weeks, or sooner if possible, from the day on which it is signed. In faith whereof, we, the undersigned, by virtue of our full powers, have signed and hereto affixed the seal of our arms. Done at St. Petersburg, December 4/16, 1800. [L. S.] Court Stedingk [L. S.] Count de Rostoi'sin Convention between Russia and Denmark for the Reestablishment of an Armed Neutrality, December 16, 1800^ In the Name of the Mo'St PJoly and Indivisible Trinity: The freedom of navigation and security of commerce of neutral Powers having been compromised, and the principles of the law of nations having been disregarded in the present naval war. His Majesty the Emperor of all the Russias and His Majesty the King of Den- mark and Norway, led by their love of justice and by an equal solici- iTranslation. French text at Martens, Recueil de Traites, vol. 7, p. 182. Ac- cepted and ratified by His Russian Majesty on February 20, 1801. 206 THE ARMED NEUTRALITY OF 1780 AND 1800 tude for all that may contribute to public prosperity in their States, have deemed it advisable to give a new sanction to the principles of neutrality, which, indestructible in their essence, require only the co- operation of the governments interested in their maintenance to make them respected. With this view flis Imperial Majesty has manifested, by the declaration of August 15 to the Courts of the north, to whose interests likewise it is to adopt uniform measures under similar cir- cumstances, how greatly he has at heart the reestablishment, in all its inviolability, of the right common to all peoples to navigate and to carry on commerce freely and independently of the temporary inter- ests of belligerent parties. His Danish Majesty shares the desires and sentiments of his august ally, and a happy likeness of interests, strengthening their mutual confidence, has determined them to reestab- lish the system of armed neutrality, which was followed with such success during the last American war, by renewing its beneficent max- ims in a new convention adapted to present circumstances. To this end. His Majesty the Emperor of all the Russias and His Majesty the King of Denmark and Norway have appointed as their plenipotentiaries, to wit : His Imperial Majesty, Count Theodore de Rostopsin, His Privy Councilor, Member of His Council, Principal Minister in the College of Foreign Affairs, Postmaster General of the Empire, Grand Chancellor and Grand Cross of the Sovereign Or- der of St. John of Jerusalem, Chevalier of the Orders of St. Andrew, of St. Alexander Nevsky, and of St. Anne of the First Class, of the Orders of St. Lazare, of the Annunciation, of SS. Maurice and Lazare, of St. Ferdinand and St. Hubert; and His Danish Majesty, Niels de Rosenkrantz, His Envoy Extraordinary and Minister Plenipotentiary to His Majesty the Emperor of all the Russias, his Chamberlain and General Aide-de-Camp ; who, after having exchanged their respective full powers, have agreed upon the following articles: Article 1 His Majesty the Emperor of all the Russias and His Majesty the King of Denmark and Norway declare their desire to see to the strict- est enforcement of the prohibition of commerce in contraband on the part of their subjects with any of the Powers whatsoever now at war or that may hereafter enter into the war. OFFICIAL DOCUMENTS 207 Article 2 To avoid any ambiguity and any misunderstanding regarding what should be considered contraband, His Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway declare that they recognize as such only the following articles, to wit: can- non, mortars, firearms, pistols, bombs, grenades, bullets, balls, guns, gun flints, fuses, powder, saltpeter, sulphur, breastplates, pikes, swords, swordbelts, cartridge-boxes, saddles and bridles, except such quanti- ties thereof as may be necessary for the defense of the vessel and of those composing its crew ; and all other articles whatsoever not here enumerated shall not be considered war or naval munitions, nor shall they be subject to confiscation, and consequently they shall pass freely and shall not be subjected to the slightest difficulties. It is also agreed that the present article shall in no way impair the special provisions of previous treaties with the belligerent parties, by which articles of a similar nature may have been reserved, prohibited, or permitted. Article 3 All that is to be considered contraband having thus been determined and excluded from the commerce of neutral nations, in accordance with the terms of the preceding article. His Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway in- tend and desire that all other trade shall be and remain absolutely free. In order to safeguard adequately the general principles of the natural law, of which freedom of commeroe and navigation, as well as the rights of neutral peoples, is a direct consequence. Their Majesties have resolved to leave them no longer at the mercy of an arbitrary interpretation that may be influenced by isolated and temporary in- terests. To this end they have agreed: ( 1 ) That all vessels may navigate freely from port to port and along the coasts of the nations at war. (2) That eflfects belonging to subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contra- band goods. (3) That to determine what constitutes a blockaded port, none shall be considered such except a port where the attacking Power shall have disposed and stationed its vessels sufficiently near to render access thereto clearly dangerous, and that no vessel sailing toward a 208 THE ARMED NEUTRALITY OF 1780 AND 1800 blockaded port shall be considered as having contravened the present convention, unless, after having been notified by the commanding officer of the blockading fleet of the condition of the port, it shall at- tempt, either by force or by ruse, to enter therein. (4) That neutral vessels may not be arrested except for just cause and for self-evident acts ; that their cases shall be tried without delay ; that the procedure shall always be uniform, prompt, and legal; and that in every instance, in addition to the indemnities graiited to those who have sufifered loss, without having been at fault, complete satis- faction shall be given for the insult to the flag of Their Majesties. (5) That the declaration of the commanding officer of the vessel or vessels of the Imperial or Royal Navy, which accompanies the convoy of one or more merchant ships, that his convoy carries no con- traband goods, must be considered sufficient, and that thereupon there shall be no occasion to visit either his vessel or those of his convoy. The better to ensure to these principles the respect due to stipula- tions dictated by a disinterested desire to maintain the inalienable rights of neutral nations, and to give further proof of their devotion to and love of justice, the high contracting Powers hereby bind them- selves most solemnly to issue new and strict orders forbidding their captains, whether of ships of the line or of merchant ships, to load, hold, or conceal on board any articles which, by the terms of the pre; ent convention, might be considered contraband, and to see, respect- ively, to the execution of the orders that they shall have published in their admiralties and wherever else it may be necessary, with a view to which the ordinance, which shall renew this prohibition under the severest penalties, shall be printed at the end of the present act, in order that there may be no allegation of ignorance thereof. Article 4 To protect in common the commerce of their subjects on the basis of the principles hereinbefore laid down. His Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway have seen fit to equip separately a number of war-ships and frigates propor- tional to this object, as the squadrons of each Power will have to take their station and be used for such convoying as its commerce and its navigation may require, in conformity with the nature and the quality of the trade of each nation. OFFICIAL DOCUMENTS 209 Article 5 To prevent the annoyances that may arise as the result of the bad faith of those who make use of the flag of a nation to which they do not belong, it is agreed to lay down as an inviolable rule that, for ? vessel to be considered as the property of the country whose flag it flies, its captain and half of its crew must belong to that country, and it must have on board papers and passports in good and due form; but any vessel that shall not observe this rule and that shall contravene the published ordinances to this efl^ect, printed at the end of the present convention, shall lose all right to the protection of the contracting Powers, and the government to which it belongs shall bear alone the losses, damages, and annoyances that may result there- from. Article 6 If it should happen, however, that the merchant ships of either of the Powers should be in waters where the war-ships of the same nation are not stationed and where they could not have recourse to their own convoys, then the commanding officer of the war-ships of the other Power must, if requested, give them sincerely and in good faith, the assistance that they may need, and in such case, the war- ships and frigates of either of the Powers shall act as a support and protection to the merchant ships of the other ; it being understood, however, that those asking such aid shall not have engaged in any commerce that is illicit or contrary to the principles of neutrality. Article 7 This convention shall have no retroactive effect, and consequently no action shall be taken with respect to differences which may have arisen before its conclusion, unless it is a question of continuous acts of vio- lence, tending to establish an oppressive system for all the neutral nations of Europe in general. Article 8 If, in spite of the most scrupulous care on the part of the two Powers and in spite of the observance of the most complete neutrality by them, merchant ships of His Imperial Majesty of all the Russias or of His 210 THE ARMED NEUTRALITY OF 1780 AND 1800 Majesty the King of Denmark and Norway should be insulted, pillaged, or taken by the war-ships or privateers of any of the Powers at war, then the Minister of the injured party to the government whose war-ships or privateers shall have committed such acts shall make rep- resentations, demand the seized ship, and insist upon suitable indem- nification, never losing sight of the reparation due for the insult to the flag. The Minister of the other contracting Party shall join with him and support his complaints in the most energetic and efifectual manner, and they shall thus act in concert and in perfect accord. If justice should be refused on these complaints, or if the rendering of justice should be postponed from time to time, then Their Majesties shall employ reprisals against the Power so refusing, and they shall take counsel with each other as to the most effectual method of carry- ing out such reprisals. Article 9 If either of the two Powers or both of them, because of or in con- tempt of the present convention, should be disturbed, molested, or at- tacked, it is likewise agreed that they shall make common cause for their mutual defense and shall work and act in concert to secure full and complete satisfaction for the insult to their flag and for the losses caused to their subjects. Article 10 The principles and the measures adopted by the present act shall be applicable also to all naval wars, which may unfortunately arise to disturb Europe. These stipulations shall, therefore be regarded as per- manent and shall constitute the rule for the contracting Powers in the matter of commerce and navigation, whenever there shall be occasion to pass upon the rights of neutral nations. Article 11 The principal aim and object of this convention being to ensure general freedom of commerce and navigation, His Imperial Majesty of all the Russias and His Majesty the King of Denmark and Norway agree and bind themselves in advance to permit other neutral Powers to accede hereto, and that by adopting the principles they shall share the obligations as well as the advantages hereof. OFFICIAL DOCUMENTS 211 Article 12 In order that the Powers at war may not allege ignorance of the arrangements concluded between Their said Majesties, they agree to bring to the knowledge of the belligerent parties the measures which they have together adopted, which are all the less hostile because they are not detrimental to any other country, for they tend solely to pro- tect the commerce and navigation of their respective subjects. Article 13 The present convention shall be ratified by the two contracting Par- ties, and ratifications thereof shall be exchanged in good and due form within six weeks, or sooner if possible, from the day on which it is signed. In faith whereof, we, the undersigned, by virtue of our full powers, have signed and hereto affixed the seal of our arms. Done at St. Petersburg, December 4/16, 1800. ■ [L. S.] Niels de Rosenkrantz [L. S.] Count de Rostopsin Convention between Russian and Prussia for the Reestablishment of an Armed Neutrality, December 18, 1800, and Supplementary Article^ In the Name of the Most Holy and Indivisible Trinity: The freedom of navigation and security of commerce of neutral Powers having been compromised, and the principles of the law of nations having been disregarded in the present naval war. His Majesty the Emperor of all the Russias and His Majesty the King of Prussia, led by their love of justice and by an equal solicitude for all that may contribute to public prosperity in their States, have deemed it advisable to give a new sanction to the principles of neutrality, which, indestruc- tible in their essence, require only the cooperation of the governments ^Translation. French text at Martens, Recueil de Traites, vol. 7,: p. 189. Ac- cepted and ratified by the Russian Emperor, February 6, 1801. 212 THE ARMED NEUTRALITY OF 1780 AND 1800 interested in their maintenance to make them respected. With this view, His Imperial Majesty has manifested, by the declaration of August 15 to the Courts of the north, to whose interests likewise it is tO' adopt uniform measures under similar circumstances, how greatly he has at heart the reestablishment, in all its inviolability, of the right common to all peoples to navigate and to carry on commerce freely and inde- pendently of the temporary interests of belligerent parties. His Prus- sian Majesty shared the desires and sentiments of his august ally, and a happy likeness of interests, strengthening their mutual confidence, has determined them to reestablish the system of armed neutrality, which was followed with such great success during the last American war, by renewing its beneficent maxims in a new convention adapted to present circumstances. To this end. His Majesty the Emperor of all the Russias and His Majesty the King of Prussia, have appointed as their plenipotentiaries, to wit: His Imperial Majesty, Count Theodor de Rostopsin, his Privy Councilor, Member of his Council, Principal Minister of the College of Foreign Affairs, Postmaster General of the Empire, Grand Chancellor and Grand Cross of the Sovereign Order of St. John of Jerusalem. Chevalier of the Orders of St. Andrew, of St. Alexander Nevsky, and of St. Anne of the First Class, of the Orders of St. Lazare, of the Annunciation, of SS. Maurice and Lazare, of St. Ferdinand and St. Hubert; and His Prussian Majesty, Count Spiridon de Lusi, Lieutenant General of Infantry of his Armies, his Envoy Extraordinary and Min- ister Plenipotentiary to His Majesty the Emperor of all the Russia ?= Chevalier of the Order of the Red Eagle and of the Order of Merit • who, having exchanged their full powers, have agreed upon the fol- lowing articles: Article 1 His Majesty the Emperor ' of all the Russias and His Majesty the King of Prussia declare their desire to see to the strictest en- forcement of the prohibition of commerce in contraband 'on the part of their subjects with any of the Powers whatsoever now at war or that may hereafter enter into the war. Article 2 To avoid any ambiguity and any misunderstanding regarding what should be considered contraband. His Imperial Majesty of all the- OFFICIAL DOCUMENTS 213 Russias and His Majesty the King of Prussia declare that they recog- nize as such only the fpllowing articles, to wit: cannons, mortars, fire arms, pistols, bombs, grenades, bullets, balls, guns, gun flints, fuses, powder, saltpeter, sulphur, breastplates, pikes, swords, swordbelts, cartridge-boxes, saddles and bridles, except such quantities thereof as may be necessary for the defense of the vessel and of those composing its crew; and all other articles whatsoever not here enumerated shall not be considered war or naval munitions, nor shall they be subject to confiscation, and consequently they shall pass freely and shall not be subjected to the slightest difficulties. It is also agreed that the present article shall in no way impair the special provisions of previous treaties with the belligerent parties, by which articles of a similar nature may have been reserved, prohibited, or permitted. Article 3 All that is to be considered contraband having thus been determined and excluded from the commerce of neutral nations, in accordance with the terms of the preceding article, His Imperial Majesty of all the Russias and His Majesty the King of Prussia intend and desire that all other trade shall be and remain absolutely free. In order to safeguard adequately the general principles of the natural law, of which freedom of commerce and navigation, as well as the rights of neutral peoples, is a direct consequence. Their Majesties have resolved to leave them no longer at the mercy of an arbitrary interpretation ihat may be influenced by isolated and temporary interests. To this end they have agreed: (1) That all vessels may navigate freely from port to port and along the coasts of the nations at war. (2) That effects belonging to subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contra- band goods. (3) That to determine what constitutes a blockaded port, none shall be considered such except a pK>rt where the attacking Power shall have disposed and stationed its vessels sufficiently near to render ac- cess thereto clearly dangerous, and that no vessel sailing toward a blockaded port shall be considered as having contravened the present convention, unless, after having been notified by the commanding officer of the blockading fleet of the condition of the port, it shall attempt, either by force or by ruse, to enter therein. 214 THE ARMED NEUTRALITY QF 1780 AND 1800 (4) That neutral vessels may not be arrested except for just cause and for self-evident acts; that their cases shall be tried without delay; that the procedure shall always be uniform, prompt, and legal; and that in every instance, in addition to the indemnities granted to those who have suffered loss, without having been at fault, complete satis- faction shall be given for the insult to the flag of Their Majesties. (5) That the declaration of the commanding officer of the vessel or vessels of the Imperial or Royal Navy, which accompanies the convoy of one or more merchant ships, that his convoy carries nO' con- traband goods, must be considered sufficient, and that thereupon there shall be no occasion to visit either his vessel or those of his convoy. The better to ensure to these principles the respect due to stipu- lations dictated by a disinterested desire to maintain the inalienable rights of neutral nations, and to give further proof of their devotion to and love of justice, the high contracting Powers hereby bind them- selves most solemnly to issue new and strict orders forbidding their captains, whether of ships of the line or of merchant ships, to load, hold, or conceal on board any articles which, by the terms oi the pres- ent convention, might be considered contraband, and to see, respec- tively, to the execution of the orders that they shall have published in their admiralties and wherever else it may be necessary, with a view to which the ordinance, which shall renew this prohibition under the severest penalties, shall be printed at the end of the present act, in order that there may be no allegation of ignorance thereof. Article 4 In return for this accession His Majesty the Emperor of all the Russias shall see to it that the commerce and navigation of Prussian subjects enjoys the protection of his fleets, by ordering all the com- manding officers of his squadrons to protect and to defend from insult and molestation such Prussian merchant ships as happen to be along their course, as those of a Power that is friendly, allied and strictly observant of neutrality; it being understood, however, that the aforesaid ships shall not be employed in any commerce that is illicit or contrary to the rules of the strictest neutrality. The same protection and the same assistance -shall be given to the Prussian flag by Danish and Swedish war-ships, and His Majesty the Emperor of all the Russias binds himself to cooperate, if neces- OFFICIAL DOCUMENTS 215 sary, in the arrangements to be stipulated to this effect in separated conventions, to be concluded as a consequence of the present act be- tween the Courts of Berlin, of Copenhagen, and of Stockholm. Article 5 This convention shall have no retroactive effect, and consequentl)- no action shall be taken with respect to differences which may have arisen before its conclusion, unless it is a question of continuous acts of violence, tending to establish an oppressive system for all the neutral nations of Europe in general. Article 6 If, in spite of the most scrupulous care on the part of the two Powers and in spite of the observance of the most complete neutrality by them, merchant ships of His Imperial Majesty of all the Russias or of His Prussian Majesty should be insulted, pillaged, or taken by the war-ships or privateers of any of the Powers at war, then the Minister of the injured party shall make representations to the gov- ernment whose war-ships or privateers shall have committed such acts, demand the seized ship, and insist upon suitable indemnification, never losing sight of the reparation due for the insult to the flag. The Minister of the other contracting party shall join with him and support his complaints in the most energetic and effectual manner, and they shall thus act in concert and in perfect accord. If justice should be refused on these complaints, or if the rendering of justice should be postponed from time to time, then Their Majesties shall employ re- prisals against the Powers so refusing, and they shall take counsel with each other as to the most effectual method of carrying out such reprisals. Article 7 If either of the two Powers or both of them, because of or in con- tempt of the present convention, should be disturbed, molested, or attacked, it is likewise agreed that they shall make common cause for their mutual defense and shall work and act in concert to secure full and complete satisfaction for the insult to their flag and for the losses caused to their subjects. 216 THE ARMED NEUTRALITY OF 1780 AND 1800 Article 8 The principles and the measures adopted by the present act shall be applicable also to all naval wars, which may unfortunately arise to disturb Europe. These stipulations shall therefore be regarded as per- manent and shall constitute the rule for the contracting Powers in the matter of commerce and navigation, whenever there shall be occa- sion to pass upon the rights of neutral nations. Article 9 The principal aim and object of this convention being to ensure general freedom of commerce and navigation, His Imperial Majesty of all the Russias and His Prussian Majesty agree and bind themselves in advance to permit other neutral Powers to accede hereto, and that by adopting the principles they shall share the obligations as well as *the advantages hereof. Article 10 In order that the Powers at war may not allege ignorance of the arrangements concluded between Their said Majesties, they agree to bring to the knowledge of the belligerent parties the measures which they have together adopted, which are all the less hostile because they are not detrimental to any other country, for they tend solely to pro- tect the commerce and navigation of their respective subjects. Article 11 The present convention shall be ratified by the two contracting Parties, and ratifications thereof shall be exchanged in good and due form within six weeks, or sooner if possible, from the day on which it is signed. In faith whereof, we, the undersigned, by virtue of our full powers, liave signed and hereto affixed the seal of our arms. Done at St. Petersburg, December 6/18, 1800. IL. S.l Count de Rostopsin \l.. S.] Spiridon Count de Lusi Supplementary Article To prevent the annoyances that may arise as the result of the bad faith of those who make use of the flag of a nation to which they do OFFICIAL DOCUMENTS 217 not belong; it is agreed to lay down as an inviolable rule that, for a vessel to be considered as the property of the country whose flag it flies, its captains and half of its crew must belong to that country, and it must have on board papers and passports in good and due form ; but any vessel that shall not observe this rule and that shall contravene the published ordinances to this effect, printed at the end of the present convention, shall lose all right to the protection of the contracting Powers, and the government to which it belongs shall bear alone the losses, damages, and annoyances that mav result therefrom. Swedish Maritime Regulations, December 23, 1800^ The preamble states the necessity of rendering the rights of com- merce clear and explicit. For this effect, in order to secure the pro- tection of the Government, the commerce of Sweden must observe the following requisites: " 1. In order that a ship be entitled to be considered as a Swede, she must be built in Sweden, or the provinces under her dominion; or shipwrecked on the Swedish coast, and there sold ; or bought in a for- eign country by a legal and authentic contract. If such purchase is made in a country threatened with war, it shall be considered as law- ful as soon as three months have elapsed before its actually breaking out. Every ship puarchased must be naturalized. As however the naturalization of ships bought in a foreign country, and afterwards taken by a cruiser belonging toi any of the belligerent Powers, may frequently produce disagreeable explanations in the sequel, it is hereby declared, that in tinie of war ships shall not be allowed to be natural- ized which have fo'rmerly been the property of the belligerents or their subjects ; nevertheless, with the exception of all ships that were natu- ralized before the present regulation was adopted, which shall enjoy all the rights which are connected with the charactejr of neutrals and Swedes. 2. The captain of the ship must be provided with all papers requi- site and proper for the security of his voyage. Of this kind are (in ^Collection of State Papers, vol. 11, p. 206. 218 THE ARMED NEUTRALITY OF 1780 AND 1800 case the ship goes through tine Sound), a certificate of the place where the vessel was built, an invoice, letters showing the cargo not contra- band, Turkish and T^tin passports, a certificate by the magistrate of the place, a pass for the crew, a copy of the oath of the owner ; a char- ter-party with the subscription of the freighter, the captain, and the person freighting the vessel; a manifest with the like subscriptions, containing a hst of the different articles of the lading, and the condi- tions of the intended voyage; and a bill of health -\^hen the same is necessary. If the voyage is merely to the ports of the Baltic or the Sound, the Turkish and Latin passes are not necessary: but the cap- tains must have all the other papers enumerated, without exception. 3. All these documents must be made out and delivered in a Swed- ish port, unless when a ship has lost her papers by accident, or where they have been forcibly taken away, in which case these documents may be renewed in a foreign port, if the captain, immediately on his arrival, takes the precaution to exhibit an authentic and properly cer- tified declaration, by which the accident is proved, or the ground stated on Avhich he desires the renewal. 4. The captain is prohibited to have false acts or certificates, or duplicates thereof. He is likewise prohibited -to maJce use of a for- eign flag. 5. It is required that the captain and half of the crew shall be Swedish subjects. 6. Captains going to the main ocean shall be bound to fallow the course pointed out in their instructions, and agreeable to the contents of their certification. 7. Ships destined for the ports oif a belligerent Power must, with the utmost care, and under the severest penalties, avoid carrying any contraband commodities. To prevent all doubt or misimderstanding lespecting what is contraband, it is agreed that the following goods .>hall be considered contraband. 8. All Swedish subjects are prohibited to fit out privateers against the belligerents, their subjects and property. 9. A Swedish ship can not be eanployed by a belligerent Power to transport troops, arms, or any warlike implements. Should any captain be compelled to do so by superior force, he is bound at least to exhibit a formal protest against such violence. 10. When a merchant ship is not under convoy, and happens to be brought to by a ship of war or privateer belonging to any of the bel- OFFICIAL DOCUMENTS 219 ligerents, the captain shall not, in that case, oppose the searching of his vessel, but be bound faithfully to show all acts and documents which relate to her cargo. The captain and his people are strictly prohibited to keep back or destroy any of their papers. 11. If, however, such ship makes part of a convoy, the foregoing article shall not serve as the rule; but the captain's duty consists in punctually obeying the signals of the commodore of the convoy, for which purpose therefore he shall separate as little as possible from, the convoy. 12. All captains artr expressly forbidden to attempt going into a blockaded port, as soon as they are formally apprized by the officer co'mmanding the blockade. In order to ascertain what a blockaded harbor is, this appellation is confined to those to which, by the exer- tions of the blockading Power with ships destined and adequate to the object, it is evidently dangerous to attempt running in. 13. In case a Swedish merchant ship is captured by a ship of war or privateer of any of the belligerents, the captain shall immediately transmit a circumstantial account, and duly explained, to the Swedish consul or vice consul of the place to which the ship is taken; and should there be no consul or vice consul there, he shall transmit a memorial to the Swedish consul of the district to which the place into which his ship is taken belongs. 14. Every captain of a Swedish merchantman, who strictly observes the above regulations and orders, shall enjoy a free voyage, protected by the laws of nations and the provision of treaties; and to this end all public agents and Swedish consuls are required, in case of attack or insult, to give their support to the just and well-founded com- plaints on the subject. But those who, in any point whatever, neglect or violate their orders, must answer for the consequences of their conduct, without relying upon the protection of His Alajesty. 15. By the contents of a recent order. His Majesty has prohibited the privateers of a foreign nation to enter or bring their prizes into the ports of his kingdom, except in case of their being driven in by stress of weather. In this case it is expressly prohibited to all what- soever to buy the prizes, or any o.f the effects which the privateers have taken. To which end publication, etc. Given at St. Petersburg, 23d December, 1800. (Signed) Gustavus Adolphus 220 THE ARMED NEUTRALITY OF 1780 AND 1800 Note of Mr Drummond to the Danish Minister for Foreign Affairs regarding the Armed Neutrality League, December 27, 1800^ The Court of London, informed that Denmark is carrying on with activity negotiations very hostile to the interests of the British Empire, thinks that it can not better fulfil the duties which such a circum- stance prescribes, than by addressing itself directly to the Minister of His Danish Majesty, to demand from him a frank and satisfactory explanaticjn. In all the Courts of Europe they speak openly of a confederacy be- tween Denmark and some other Powers, to oppose by force the exer- cise of those principles of maritime law on which the naval power of the Britsh Empire in a great measure rests, and which in all wars have been followed by the maritime States, and acknowledged by their tri- bunals. His Britannic Majesty, relying with confidence upon the loyailty of His Danish Majesty, and upon the faith of the engagements recently contracted between the two Courts, has not demanded from him any explanation on this head. It was his wish to wait for the moment when the Court of Denmark should think it its duty to contradict those reports, so injurious to its good faith, and so little compatible with the maintenance of the good understanding which had been re- established between the two countries. At present the conduct and the public declaration oi one of the Powers, which it is pretended have entered into this confederacy, do not permit His Majesty to preserve any longer towards the rest the same silence which he has hitherto observed. The undersigned therefore finds himself bound to demand from his Excellency Count de Bernstorff, a plain, open, and satisfactory an- swer on the nature, object, and extent of the obligations which His Danish Majesty may have contracted, or the negotiations which he is carrying on with respect to a matter w"hich so nearly concerns the dignity of His Britannic Majesty, and the interests of his people. His Britannic Majesty, always ready to return all the marks of friendship which he may receive on the part of His Danish Majesty, hopes to find, in the answer of the Court of Copenhagen to this re- quest, only a new occasion of manifesting these dispositions. ^Collection of State Papers, vol. 11, p. 210. OFFICIAL DOCUMENTS 221 In transmitting this note to M. tlie Secretary of State, the under- signed avails himiself, with pleasvire, of this opportunity to assure him of the high consideration with which he has the honor to be, His very humble and obedient servant, W. Drummond To his Excellency the Count de Bek?n'storff, Secretary of State of His Danish Majesty, etc., etc. Reply of the Spanish Ambassador at the Court of Stockholm to the Swedish High Chancellor respecting the British Violation of the Swedish Flag.^ Stockholm, December 2p, 1800. Sir: I this moment received from my Court an answer to the dis- patches, in which I communicated the first steps which I had taken with His Swedish Majesty, when I had the honor to present my first note on the subject of the outrage of which the English were guilty in the road of Barcelona. The King, my master, has observed with regret the coldness with which the Swedish Court has received the complaint, while it has confined itself to feeble and indecisive measures, from which it does not even indvilge the hope of any ad^'antage. This view of the mat- ter shows the small interest with which Sweden is prepared to act in the business. I can not conceal from you, sir, that this inactivity, which is observed in the applications of the Court of Sweden to that of London, might afford room to believe that this negotiation will be (connected with other objects of private interest which demand tem- porizing measures, incompatible with that energy and zeal which His Catholic Majesty expected to see displayed by His Swedish Majesty, in regard to an affair which, as it involves the honor of his flag, would have afforded him an oocasiouj to prove to Europe the warm part he takes in the interest of the maritime PoM'ers, as well as to testify the value he puts upon the good understanding which hithereto has pre- ■^Collection of State Papers, vol. 11, p. 209. 222 THE ARMED NEUTRALITY OF 1780 AND 1800 vailed between the two Courts. In pursuance of a new order from my Court, I repeat, and foTnialJy insist upon what I demanded in my last note of the 17th October. I fondly flatter myself that His Swed- ish Majesty will adopt far more active measures than the contents of your note allowed me to hope. It is not probable that you will expose Swedish ships to all the severity of the measures which circumstances require to be exercised agaiiist suspected vessels, and who'se conduct might be considered as connived at, unless the Swedish Court receives from England the most ample reparation respecting the affair of liarcelona. I have the honor to be, etc. (Signed) The Chevalier de Huerta Reply of the Danish Minister for Foreign Affairs to Mr. Drum- mond, December 31, 1800^ The undersigned Secretary of Stale for Foreign Affairs, having given an account to the King his master O'f the contents of the note which Mr Drummond has done him the honor to transmit to him on the 27th instant, is authorized to return the answ.er which follows : The Court of London must have received very incorrect informa- tion, to have been able for a moinent to presume that Denmark had conceived projects hostile against it, or incompatible with the mainte- nance of the good understanding which subsists between the two Crowns; and the King is very much obliged to His Britannic Majesty, for having furnished him with the opportunity of contradicting, in the most positive manner, reports as ill founded, as contrary to his most decided sentiments. The negotiation which is carrying on at St. Petersburg, between Russia, Prussia, Sweden, and Denmar!-:, has no other object than the renewal of the engagements which, in the years 1780 and 1781, were contracted by the same Powers for the safety of their navigation, and of which a communication was at that time made to all the Courts of Europe. ''■Collection of State Papers, vol. 11, p. 211. OFFICIAL DOCUMENTS 223 His Majesty the Emperor of Russia, having proposed to the Powers of the north to reestabHsh these engagements in their original form, Denmark has so much the less hesitated to consent to it, as, far from having ever abandoned the principles professed in 1780, she has thought it her duty to maintain them, and claim them upon all occa- sions, and not allow herself to admit in respect of them any other modifications than those vv'hich result from her treaties with the bel- ligerent Pov/ers. Very far from wishing to inteiTupt those Powers in the exercise of rights which the war gives them, Denmark introduces into the negotia- tion with her allies none but views absolutely defensive, pacific, and incapable of giving oftense or provocation to any one. The engage- ments she will make will be founded upon the strictest fulfilment of the duties of neutrality, and of the obligations which her treaties im- pose upon her; and if she wishes to shelter her innocent navigation from the manifest abuses and violence which the maritime war pro- duces but too easily, she thinks she pays respect to the belligerent Powers by supposing, that, far from wishing to authorize or tolerate those abuses, they would, on their side, adopt measures best calculated to prevent or repress them. Denmark has not made a mysterv to any one of the object of her negotiation, upon the nature of which some suspicion has been infused into the Court of London ; but she has not thought that she departed from the usual forms, in wishing to wait the definitive result of it, in order to communicate an official account of it to the Powers at war. The undersigned, not knowing that any of the Powers engaged in this negotiation has made a declaration, or adopted measures relative to its object, at which Great Britain might take ofifense or umbrage, ran not without ulterior explanation reply to this point of Mr. Drum- inond's note. Mucli less does he conceive in what respect the engagement taken by the previous convention of the 29th of A.ugust last ca.n be consid- ered as contrary to those which Denmark is about to enter into with the neutral and united Powers of the north ; and in all cases in which he shall find himself called upon to combat or remove the doubts that shall have been conceived with respect to the good faith of the King, he shall consider his talk to be very easy, as long as this good faith shall be introduced into the reproaches or suspicions advanced against His Majesty. He flatters himself that the English Government, after 224 THE ARMED NEUTRALITY OF 1780 AND 1800 having received the required explanations, will have the frankness to allow that the provisional and momentary abandonment, not of a prin- ciple, the question with respect to which remained undecided, but of a measure, whose right has never been, nor ever can be, contested, can not be found at all in opposition to the general and permanent principles, relative to which the Powers of the north are upon the point of establishing a cooperation, which, so far from being calcu- lated to compromise their neutrality, is destined only tO' strengthen it. The undersigned would fain believe that these explanations will ap- pear satisfactory to the Court of London ; and that the latter will do justice to the intentions and sentiments of the King, and particularly to His Majesty's invariable desire to maintain and cement, by all means in his power, the friendship and good understanding which subsists between Denmark and Great Britain. He has the honor to o.flfer to Mr. Dnimmond the assurance of his most distinguished consideration. Copenhagen, December ji, rSon. (Signed) Bernstorff Reply of Count Wedel-Jarlsberg to Lord Grenville, January 10, 1800^ The undersigned. Envoy Extraordinary from His Danish Majesty, will transmit this day with regret to his Court the ofificial communica- tion he had the honor to receive yesterday from Lord Grenville, upon the subject of the etabargo laid upon the Danish vessels in the British ports. While he waits until the orders of the King his master, relative to this offensive measure, arrive, we can not avoid protesting against the validity of the motives alleged in the said note, and against the justice of the consequences, \yhich the British Government has conceived it could accredit against the Court of Copenhagen. A difference which arose between the Courts of Petersburg and London during the negotiation, destined solely to the protection of a ^Collection of State Papers, vol. 11, p. 220. OFFICIAL DOCUMENTS 225 • perfect neutrality in the north, lias no relation whatever with that; and as His Imperial Majesty of all the Russias has caused tO' be pub- lished a formal declaration on the subject of the motives of the meas- ures adopted on his part, Denmark finds in it a complete refutation of the argument advanced by the British Minister. With respect to the principles of the northern Powers respecting the saored rights of neutrality, they hav.e not been abandoned. Russia, in her belligerent quality, has only suspended the application, and Den- mark and Sweden have, by their convention of the 27th March 1794 1^ officially communicated to alll the belligerent Powers), declared, in the face oi all Europe, that their system of protection in favor of inno- cent commerce was invariable. Hence it follows that his Danish Majesty only now renews ties which have not ceased to exist. The undersigned thinks himself, in consequence, authorized to protest, formally, against proceedings of so hostile a nature, which the King his master could not but have con- sidered as an open and premeditated provocation, had not the communi- cation been accompanied with the assurance that' His Britannic Maj- esty still desires to maintain good harmony with Denmark; a desire which His Danish Majesty has constantly professed, and of which he has given the most unequivocal proofs. The imdersigned, who for a number of years has felicitated him- self upon being the interpreter of the unalterable sentiments of the King his master, is deeply hurt that false impressions have just men- aced the good understanding between the two Crowns. He wishes that he coaild still be the instrument of an explanation calculated to' do away injurious doubts, and to prevent incalculable consequences to the interests of the reciprocal powers. It is with these sentiments, and with those of perfect consideration, that he has the honor to renew to his Excellency Lord Grenville the homage of his respect. (Signed) Wedei.-Jarlsberg January lo, iSoi. 226 THE ARMED NEUTRALITY OF 1780 AND 1800 « British Instructions to Lieutenant General Trigge regarding His Majesty's Forces in the Leeward Islands, January 14, 180P Sir: Information having reached this country which leaves no doubt, that the Courts of Copenhagen, Stockholm and Petersburg have agreed to revive the principles of the armed neutrality of the year 1780 and that extensive armaments are now preparing in the ports of the above-mentioned Powers, with. the intention of supporting these principles and consequently of resisting by open violence the maritime rights of this country, as established by the law of nations, by the positive stipulations of treaties and by the usage of former wars, His Majesty has resolved to adopt such measures as a conduct so hostile to the -just and ancient privileges of the British flag, calls for on his part, for the maintenance and preservation of the best interests of hh people; and to em_ploy every possible means, as well to obtain in- demnity and reparation for the injury done to the property of His Majesty's subjects, in violation of the most solemn treaties, by the Power which has taken the lead in this confederacy, as to deprive the Courts of Denmark and Sweden (whose conduct has obliged him reluctantly to the resources they may expect to derive from their col- onies and trade for entering upon, or carrying on a contest, which as soon as the season will admit of naval operations in the Baltic, it will not be in His Majesty's power to avoid, unless they shall in the in- terval be induced by this timely act of vigor and justifiable precaution to relinquish the system, to which they are actually engaged, and to give His Majesty such security as the case may appear to require, against the renewal of similar pretensions on their part. In pursuance of this principle I am commanded to signify to you His Majesty's pleasure that immediately on the receipt of these in- structions you are, in concert with the officer commanding Plis Maj- esty's naval iforces on the Leeward Island station to make every necessary preparation for proceeding in His Majesty's name to seize upon and take possession of the Islands of St. Thomas, St. Croix and St. John and the Swedish island of St. Bartholomeus, together with all ships, stores, or public property of any description, belonging to Russia, Denmark or Sweden, which may be found in the said Islands. ^Thorvald Boye, op. cit., p. 357. OFFICIAL DOCUMENTS 227 Additional Instructions to Lieutenant General Trigge, January 14, 1801^^ Sir: In addition to the instructions contained in my letter of this day's date I have to inform you that His Majesty from his anxiety to avoid coming to open war with Denmarlc and Sweden is still willing to entertain a hope, that the display of the vigorous and de- cided measures he is compelled to adopt against their trade and col- onies may still induce them to relinquish their present engagements with Russia and to give such security as His Majesty may deem necessary for their observance of a system of neutrality consistent with the maritime rights of this country. Under these circumstances and until the effect upon the Courts of. Copenhagen and Stockliolm of the measures His Majesty has ordered to be taken, can be ascertained, whatever appearance of existing hostility these measures may assume, His Majesty is disposed to consider them rather as steps of just and necessary precaution, and with a view to indemnify his own subjects for the injury they have sustained by the confederacy tO' which these powers are a party, than as arising out of an actual state of war. This being the case you are not to consider any property or other articles liable to seizure, and which in such cases have usually fallen to the share of the captors as required to them for their advantage His Majesty reser\'ing to himself tO' determine hereafter respecting the disposal of such property and to what amount an appropriation may be proper for the reward of the captors, and with this view you will cause all articles and effects coming under this description to be deposited in proper places of safety rmtil His Majesty's pleasure shall be known or to be sent to this country on board the ships in which they may be seized as the nature of the cargo or stores may appear to require. (P. R. O.) iThorvald Boye, op. cit., p. 358. 228 THE ARMED NEUTRALITY OF 1780 AND 1800 British Order of Council laying an Embargo on Russian, Danish, and Swedish Ships, January 14, 180P At the Court of St. James's, the 14th January rSoi; present, the King's Most Excellent Majesty in Council. Whereas, His- Majesty has received advice, that a large number of vessels belonging to His Majesty's subjects have been and are detained in the ports of Russia, and that the British sailors navigating the same, have been and now are detained, as prisoners, in different parts of Russia; and also, that, during the continuance of these proceedings, a confederacy of a hostile na.ture, against the just rights and interest of His Majesty, and his dominions, has been entered into with the Court of St Petersburg by tlje Courts of Denmark and Sweden, re- spectively; His Majesty, with the advice of his P'rivy Council, is thereupon pleased to order, as it is hereby ordered, that no ships or vessels belonging to any of His Majesty's subjects be permitted to enter and clear out for any of the ports of Russia, Denmark, or Swe- den, until further order; and His Majesty is further plleased to order, that a general embargo or stop be made for 'all Russian, Danish, and Swedish ships and vessels whatsoever now Avithin, or which hereafter shall come into any of the ports, harbors, or roads within the United Kingdom of Great Britain and Ireland, together with all persons and effects on board the said ships and vessels ; but that the utmost care be taken for the preservation of all and every part of the cargoes on board any of the said ships or vessels, so that no damage or embezzle- ment whatever be sustained. And the Right Hon. the Lords Commissioners of His Majesty's 'T'rea.sury, and the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports, are to give the necessary directions herein as to them may respectively appertain. W. Fawkener Notification of Lord Grenville to the Danish and Swedish Ambassa- dors regarding an Embargo on Danish and Swedish Ships, Jan- uary 15, 1801^ The undersigned, principal Secretary of State for Foreign Affairs, has been commanded by His Majesty to make the following communi- ^Collection of State Papers, vol. 11, p. 217. ^Collection of State Papers, vol. 11, p. 218. OFFICIAL DOCUMENTS 229 cation to Count von Wedel-Jarlsberg, and Baron von Ehrensward, Danish and Swedish Envoys at this Court. His Majesty has heard with the sincerest concern, that at the mo- ment when the Court of Petersburg had adopted the most hostile measures against the persons and property of His Majesty's suibjects, the two Courts of Copenhagen and Stockholm had concluded a con- vention with that Power for the maintenance of a naval armed con- federacy in the north of Europe. If the circumstances under which the convention alluded to was negotiated and concluded, could have left any doubt in His Majesty's mind respecting the objects to which it is directed, that doubt would, by the declarations of the Court of Petersburg, and still farther by the recent and official declarations of the Court of Copenhagen, have been completely removed. It is suffi- ciently known with what hostile intentions an attempt was made, in the year 1780, to introduce a new code of public law against Great liritain, and to support by force a sj'Stem of innovation prejudicial to the dearest rights of the British Empire. But His Majesty has hith- erto had the satisfaction to see that those arbitrary and injurious measures have been completely given up. At the beginning of the present war, the Court of Petersburg, which had taken a most active part in the establishment oi the former alliance, entered intO' articles with His Majesty, which are not merely incompatible with the con- vention of 1780, but which are directly in the face of it ; engagements which are still in force, and the reciprocal execution of which His Majesty is entitled to demand upon every principle of good faith, dur- ing the continuance of the war. The conduct of His Majesty towards the other Poiwers of the Baltic, and all the decisions of his courts of justice in regard to prizes, have been uniformly, and notoriously, founded upon those principles which previously to the year 1780 had guided all other European courts oi admiralty. Nor had the intention to renew the former confederacy 'been communicated to His Majesty on the part of any of the contracting Powers, till he received informa- tion of the actual signing of the convention, and had been apprized by the declaration of one of the parties, that the object of it was to confirm the stipulations entered into in the year 1780 and 1781, in their original shape. No further doubts therefore can remain, that the object of their confederacy, and the naval preparations, which the contracting parties pursue with vigor, is nothing less than to place themselves in a situation to maintain by foTce, pretensions which are 230 THE ARMED NEUTRALITY OF 1780 AND 1800 so obviously inconsistent with the principles of justice, that those Powers, which, when neutral, brought them forward, were the first to oppose them when they became belligerent, and the establishment of which, if it should be effected, would be one of the principal means of overthrowing the strength and seciirity of the British Empire. On the knowledge of these circumstances, His Majesty the King would act contrary to the interest of his people, the dignity of his crown, and the honoT of his flag (which by the discipline, courage^ and skill of his navy, has risen to so extraordinary a pitch of greatness), were he to delay the adoption of the most effectual measures to repel the at- tack he has already experienced, and to oppose the hostile effects of the confederacy armed against him. His Majesty has therefore au- thorized the undersigned officially to communicate to Count Wedel- Jarlsberg and Baron von Ehrensward, that an embargo has been laid upon aiU the Danish and Swedish ships in the ports belonging to His Majesty. But in the execution of this measure His Majesty will take care that no violent or severe proceedings shall be exercised on the part of His Majesty towards innocent individuals. His Majesty is still animated by the most anxious desire that the circumstances which have rendered these steps necessary may cease, and that he may be enabled to return to those relations with the Courts of Stockholm and Copenhagen, which existed between them, till that mutual good- understanding was interrupted bv the present attempts to renew for- m.er pretensions. (Signed) Grenville Reply of Baron Ehrensward, January 17, 1801, to the Notification of Lord Grenville regarding an Embargo on Danish and Swedish Ships.' The undersigned. Minister Plenipotentiary of His Imperial Swedish Majesty, received the official notification, by which his Excellency Lord. Grenville, first Minister of State, signified to the undersigned, that His ^Collection of State Papers, vol. 11, p. 221. OFFICIAL DOCUMENTS 231 Britannic Majesty had ordered an embargo to be laid on all the Swedish ships that should be found in the harbors within his domin- ions. So unexpected an event between Powers who were in relations of friendship towards each other, was received with astonishment by His Imperial Majesty, who was not only unconscious of having given His Britannic Majesty the least cause of complaint, but on the contrary was entitled to have demanded indemnification for repeated aggres- sions. Actuated by this reflection, he rather expected that the notifica- tion was transmitted with the view to bury his grievances in oblivion, than to give occasion for fresh ones, which should renew the remem- brance of the past. As the English Court has stated, as the ground of this notification, that a maritime convention was in contemplation, it would doubtless have acted with more justice, had it waited for an official communica- tion from the Swedish Court, which it most assuredly would in proper time have received, of a convention, which is considered in so odious a point of view, as to urge it to an act of violence against a Court, whose connection with England nothing else could have disturbed. As the dispute between the Russian and English Courts related to the island of Malta, and the declaration of the Danish Court referred to the convention of 1780, the undersigned can see no just reason why the Swedish Court, which had given no cause of complaint to the English, and from which no other declaration was required than what related to the note of the 31st of December, which has just been received, should be attacked in so hostile a manner before any answer had been given to the insinuations contained in that note. The undersigned, who imparted the contents of the note of his Excellency Lord Grenvillc to' his Court, is obliged, in conformity to the orders of his master, to protest, as far as by the present act he can formally protest, against the embargo laid on the Swedish ships, and all loss or damage' that may be thereby occasioned. He demands, in the most forcible and expressive terms, that, in pursuance of the stipu- lations of the treaty of 1661, the embargo may be taken off, the con- tinuance of which can no otherwise be considered than as a designed and premeditated declaration of war on the part of England, as well by the detention of the convoy, as in respect to the affair at Barcelona. The undersigned, whom the expression of the desire of the British Court could not escape, observes, in the hostile determination by which it is accompanied, only to give His Imperial Swedish Majesty cause 232 THE ARMED NEUTRALITY OF 1780 AND 1800 of complaint, as well by the detention of the convoy, as in respect to the affair at, Barcelona. He wishes the British Court had conformed to the truth of its assurances by its actions, in which case this Court would have been actuated by corresponding sentiments.^ The undersigned has the honor, etc. (Signed) Baron von Ehrenswaud London, January i/, i8oi. Note of Lord Carysfort to Count Haugwitz regarding the Armed Neutrality League, January 27, 180P As the undersigned Ambassador Extraordinary and Minister Pleni- potentiary has been directed by his Court to communicate to the Prussian Ministry His Majesty's note, which, by command of His Majesty the King of Great Britain and Ireland, was presented to the Ministers of Denmark and Sweden, he can not discharge this commis- sion without likewise expressing his sincere satisfaction in being au- thorized to declare how thoroughly His Majesty is convinced that Prussia can never have sanctioned the measures which have given rise to the above-cited note. Those measures openly disclose an intention to prescribe rules to the British Empire, on a subject of the greatest importance; to force those rules upon Great Britain, and for that end, before any of the Powers who have concurred in it have given the smallest intimation to His Majesty, to enter into a league, the object of which is to renew pretensions which Great Britain at every time has considered hostile to its rights and interests, and so declared when- ever an opportunity presented — pretensions which the Russian Court has abandoned, not only in fact, but which, by a treaty actually in force, Russia is bound to oppose, and the execution of which treaty His Majesty is entitled to insist upon. When a ship of war belonging to His Danish Majesty resisted by force the execution of a right, which the King of Great Britain and Ireland, by virtue of the clearest and ilh consequence of the above official intelligence being received at Stockholm, all Swedish ships were immediately stopped from going to England, and an embargo was laid upon all English ships in the Swedisli harbors. ^Collection of State Papers, vol. 11, p. 213. OFFICIAL DOCUMENTS 233 most express stipulations of his treaties which the Court of Denmark had demanded, His Majesty, on that occasion, confined himself to the adoption of such measures as the protection of the trade of his sub- jects required to be given against t,hat measure of hostility, which this conduct on the part of an officer bearing His Danish Majesty's com- mission, seemed to show. An amicable arrangement put an end to this dispute, and the King flattered himself, not only that all misunder- standing on that subject was removed, but amity between the two Courts was strengthened anew and confirmed.' In this situation of affairs His Majesty must have learned with no less astonishment than concern, that the Court of Copenhagen was employed in negotiations to renew the hostile confederacy against Great Britain which took place in 1780, and that also great preparations were going on in the ports of Denmark. Under these circumstances the King must have been compelled to call for explanations from the Court of Denmark. At this moment he received information that a confederacy was signed at Petersburg, and the answer of the Danish Minister left no doubt respecting the nature and object of this convention, as he declared in the most express manner, "That these negotiations had in view the renewal of those relations which had been entered into between the same Powers in the years 1780 and 1781," adding, "that His Majesty the Emperor of Russia had proposed to the northern Powers the re- newal of their connection in its original form." The engagements, alluded to had for their object principles of maritime law which never had been recognized by the tribunals of Europe, and the contracting parties mutually engaged to maintain them by force, and to compel by force other nations to adopt them. They are still more repugnant to the express stipulations of the treaties which subsist between the Courts of Stockholm and Denmark, and the British Empire. The convention which these engagements' were to renew was negotiated at a time when the Court of Petersburg had adopted hostile measures against the persons and property of His Majesty's subjects, and when nothing but the extraordinary moderation of the King could have authorized other Powers not to consider him as at open war' with that Court. In such a state of things, nothing certainly could be more inconsistent with the ideas of neutrality, and nothing more distinctly indicate a hostile disposition, than that those engagements were not postponed till it was ascertained whether Russia was not to be con- sidered as a belligerent Power. Such forbearance was the more to be 234 THE ARMED NEUTRALITY OF 1780 AND 1800 expected, and particularly from the Court of Copenhagen, as, by an express article of the league of 1780, the Danish ports and havens in Norway were placed at the disposal of Russia for the purpose of facilitating the prosecution of hostilities out of the Baltic. When, therefore, the King was informed by one of the contracting parties that the object of the negotiations which had been begun at Peters- burg, without giving the least intimation, and which at last, according to the information received by the King, had terminated in the con- clusion of a convention, was no other than to renew the former confederacy to press upon His Majesty a new code of law to which he had already refused his assent; and when moreover he had the most certain intelligence, and could no longer doubt, that the Powers of the Baltic, engaged in this transaction, were pursuing warlike prep- arations with the utmost activity ; when one of those Powers had placed itself in a state of actual hostilities with His Majesty; no other alter- native remained, but either to submit, or to adopt measures which were calculated to put an effectual stop to the hostile operation of a league, which, by the declaration of the Danish Court itself, was openly directed against His Majesty. Meanwhile His Majesty has not omitted on this occasion to display his wonted justice and good-will. Although lie felt it necessary, for the maintenance of his rights, to secure some pledge against the hostile attacks which were meditated against his rights, yet he has taken the utmost care to guard against loss and injury to individuals. Firmly convinced that his conduct towards neutral States has been confoi-mable to the recognized principles of laws, -whose basis and sanction is to be found not in passing interests and momentary convenience, but in the general principle of justice; of laws which have been received and observed by the admiralty courts of all the maritime Powers of Europe ; His Majesty does not yet forego the hope that the Courts of Stockholm and Copenhagen will not take upon them the responsibility that will fall upon the authors of the war ; that particularly they will not expose themselves to that responsibility for the introduction of innovations, the notorious in- justice of which has induced those Powers by which they were first broached, to oppose, when they found themselves at war; innovations besides, which are expressly repugnant to those treaties which have been concluded with His Majesty. The step on which His Majesty has resolved must have long been foreseen. The British Government has never concealed that it considered the league of 1780 as hostile. OFFICIAL DOCUMENTS 235 and had never ceased that attention with which it watches over the rights of the nation. It immediately resisted the attempt to renew the principles which at the above-mentioned period had been agitated, and the undersigned declared to Count Haugwitz at the first conference he had with him on his arrival at Berlin, "That his Majesty would never submit to pretensions which were irreconcilable to the true principles of public law, and which strike at the foundations of the greatness and maritime power of his kingdoms." Still later, in the beginning of November, the undersigned had the honor to represent to his Excel- lency, as the Minister of a Power connected with His Majesty by the most intimate friendship, what disagreeable consequences must fol- low from the attempt of the northern Powers to press forward those pretensions. He has never ceased to renew this declaration, when, by the command of His Majesty, he has been the interpreter of that satis- faction given to the King by the repeated assurances of the friendship of His Majesty the King of Prussia, and of those constant sentiments of perfect justice of which His Majesty has never for a moment enter- tained a doubt. His Excellency Count Haugwitz will likewise easily recollect the time when the undersigned, ultimately convinced of the friendly intentions of the Prussian Government, communicated to him, by the command of His Britannic Majesty, the King's resolution to allow of no measures which had for their object to introduce innova- tions in the maritime law now in force, but, on the contrary, to defend that system in every event, and to maintain its entire execution as it had subsisted in all the Courts of Europe prior to the year 1780. If the Court of Denmark had announced in the most unequivocal manner, the real objects and contents of the engagements into which it had entered, the declaration of the Court, that Prussia was one of the Powers concerned in the negotiation, would have been sufficient to satisfy the King, and to prove to him that it could have no hostile views against his Government ; and even still His Majesty is convinced that he may implicitly rely on the friendship of His Prussian Majesty. It is true, that, in relation to Great Britain and Ireland, there can be no similarity between the northern Powers and Prussia. Those Powers are connected with His Majesty by the stipulations of mutual treaties, which are less favorable to their interests, and which more or less modify and soften the rigor of the general law ; whereas between His Majesty the King of Great Britain and Prussia no treaty of com- merce exists, and all intercourse between them is regulated by the 236 THE ARMED NEUTRALITY OF 1780 AND 1800 general principles of the law of nations, and established usages. If, however, His Majesty were to consider his own sentiments, and the incessant wish he has shown to preserve the friendship of a monarch with whom he is connected by so many ties, he could not at all antici- pate the possibility of a difference which might not easily and speedily be terminated by an amicable discussion. The repeated assurances of such sentiments on the part of His Prussian Majesty, which the undersigned has been empowered to transmit to his court, confirm this agreeable anticipation ; and the known principles which have constantly directed His Majesty the King of Prussia, do not tend to countenance the supposition that the latter has entered into the confederacy, or can enter into the confederacy, to support by force principles in common with other Powers, whose hostile views against His Britannic Majesty have been Qpenly proved. Whatever sentiments the Prussian Govern- ment may entertain in regard to the new principles themselves, yet it is too just, and knows too well what sovereigns owe to their people, and to one another, to favor for a moment the design to employ force in order to induce His Britannic Majesty to acknowledge a code which the latter deems inconsistent with the honor and security of his Crown. (Signed) Carysfort Berlin, January 2/, i8oi. British Orders of Council respecting the Embargo on Russian, Danish, and Svvedish Vessels^ At the Court of St. James's, the 28th of January, 1801; present, the icing's Most Excellent Majesty in Council. Whereas, His Majesty, by and with the advice of his Privy Council, has been pleased to cause an embargo to be laid upon vessels belonging to the subjects of Russia, Denmark, and Sweden, now within, or which hereafter should come into any of the ports of the United Kingdom of Great Britain and Ireland, together with all persons and effects on board the said vessels : and whereas it has been represented to His ^Collection of State Papers, vol. 11, p. 222. OFFICIAL DOCUMENTS 237 Majesty, that the goods on board several of the vessels so detained by the embargo are the property of His Majesty's subjects, or the property of persons not being subjects of Russia, Denmark, or Sweden, His Majesty is thereupon pleased, by and with the advice of his Privy Council, to order, as it is hereby ordered, that all goods laden on board Russian, Danish, or Swedish vessels, now detained under the said embargo, and intended to be exported, shall be delivered to the disposal of the owners or their agents, upon affidavit made and produced to the oflicer in whose custody the said vessels may be, that the said goods were not at the time of shipment, nor are now, the property of the subjects of Russia, Denmark, or Sweden; and also, that all goods which, by virtue of licenses under His Majesty's sign manual, have been imported in vessels belonging to the subjects of Russia, Denmark, or Sweden, shall in like manner be forthwith delivered to the disposal of the owners or their agents, on their making and producing a like affidavit, and on sufficient proof that His Majesty's license to import the said goods had been obtained. And His Majesty is hereby further pleased to order, that all goods which have been imported into this country, in Russian, Danish, or Swedish vessels, without license under His Majesty's sign manual, and which are now detained by the embargo, shall likewise be delivered to the owners or their agents, on affidavit being made, that such goods were not at the time of shipment, nor are now, the property of sub- jects of Russia, Denmark, or Sweden; and on their giving sufficient bail to abide adjudication, if any proceedings should be commenced against the said goods within two months from the date of such de- livery; but in case no such proceedings should be commenced within two months from the date of such delivery, then the bond so given to be void : and the Right Honorable the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, are to give the necessary directions herein as to them may respectively appertain. W. Fawkener 238 THE ARMED NEUTRALITY OF 1780 AND 1800 British Orders of Council respecting Payments to Subjects of Rus- sia, Sweden and Denmark^ At the Court of St. James's, the 28th of January 1801; present, the King's- Most Excellent Majesty in Council. Whereas His Majesty, by and with the advice of his Privy Council, has been pleased to cause an embargo to be laid upon vessels belonging to the subjects of Russia, Denmark, and Sweden, now within, or which hereafter should come into any of the ports of the United Kingdom of Great Britain and Ireland, together with all persons and eiTects on board the said vessels; His Majesty, by and with the advice of 4iis Privy Council, is pleased to order, and it is hereby ordered, that no person residing within His Majesty's dominions do presume to pay any money or bills due or payable to, or on behalf of, any person or persons being subjects, or residing within the dominions of the Emperor of Russia, or of the Kings of Denmark or Sweden, or any of them, for the freight of merchandise imported in anv Rnc;sian. Swedish, or Danish ship, which is detained under the said embargo, or which shall hereafter be brought into any of the ports of His Majesty's dominions, until His Majesty's pleasure shall be further known, or until other provision shall be made by law: — whereof all persons whrm •': may concern are to take notice, and govern themselves accordingly. W. Fawkener Note of Lord Carysfort to Count Haugwitz, regarding Relations between Great Britain and Russia, February 1, 180P The undersigned. Ambassador Extraordinary and Minister Pleni- potentiary of His Britannic Majesty, has the honor to address himself to Count Haugwitz, by command of his Court, in order to communi- cate to him the following particulars : The spirit of patience and of moderation which prevails in the note of Lord Grenville to Count Kostopshin,.will not escape the notice of his Excellency. '^Collection of State Papers, vol. 11, p. 223. ^Collection of State Papers, vol. 11, p. 224. OFFICIAL DOCUMENTS 239 A solemn treaty between the two Powers had given the respective subjects of each a complete security for the prosecution of their trade; and even, in case of a rupture, it had been agreed, that not only. no embargo should be laid, but that the subjects on both sides should have a whole year to carry away their effects, and to arrange their affairs in the country. Notwithstanding these sacred stipulations, the ships of British sub- jects in the Russian ports are detained, and their property in an extra- ordinary manner, upon various pretexts, sequestrated or sold. Their persons are likewise put under arrest, and a number of British sailors have been forcibly taken out of their ships, and been sent under guard and in the midst of winter into the interior of the country. In consequence of these new acts of violence. Lord Grenville, Secre- tary of State for Foreign Affairs, received His Majesty's order to address a second note to Count Kostopshin, in which His Majesty stated his having appointed a commissary to superintend the safety and the wants of his unfortunate subjects; a circumstance which is usual even among the Powers that are actually at war. Lord Grenville in that paper likewise formally insisted on the execution of the treaty of 1793. But, though he made the strong and just remonstrances which such circumstances demanded, yet His Majesty's constant disposition again to restore the former connection and good understanding be- tween the two Crowns has been in vain. His Britannic Majesty anticipates the sentiments which the King of Prussia will entertain when he is informed of the unheard-of and unjustifiable manner in which His Britannic Majesty's remonstrances were heard by the Court of St Petersburg. The note of Count Kostop- shin to Lord Grenville, of the 20th of December, O. S. a copy of which the undersigned is ordered to communicate to Count Haugwitz, will enable His Prussian Majesty to judge whether the undersigned is called upon to make any observations upon it. The undersigned has received orders to make known to the Court of Berlin, that this conduct, on the part of the Emperor of Russia, has put an end to all correspondence between the Courts of London and St. Petersburg; and the connection between the extraordinary violence committed upon the persons and property of His Majesty's subjects, and with the conclusion of a hostile confederacy, which the Emperor of Russia has formed for the express and avowed purpose of introducing those innovations into the maritime code, which His 240 THE ARMED NEUTRALITY OF 1780 AND 1800 Britannic Majesty has ever opposed, has at length produced a state of open war between Great Britain and Ireland and Russia. It will not be useless to remark, that the Emperor of Russia, at the present crisis, can not be considered as a neutral Power, because he was at war with Great Britain before he himself was at peace with France. The undersigned shall have done justice to the charge with which he is intrusted, when he declares, in the name of the King his master, that His Majesty, on weighing the present circumstances oi Europe, is willing to forbear demanding from the Court of Prussia that succor which was stipulated by treaty, though he considers the ca^sus foederis as completely coming within those circumstances in which they stand ; and that His Britannic Majesty can not doubt that he will receive from his ally all the proofs of friendship which the events of this new war would have required. The undersigned has the honor to be, etc. (Signed) Caeysfort Berlin. February i, iSoi. Swedish Protest of February 7, 1801, on the subject of the alleged Proceeding in the Harbor of Barcelona^ By this public instrument of protest, be it known and made manifest to all people whom it may concern, that on the seventh day of February one thousand eight hundred and one, before me Thomas Pain, notary public, residing in the town and port of Dover, in the county of Kent, by lawful authority admitted and sworn, personally appeared Martin Rubarth, master of the ketch or vessel called Hoffnwng, belonging to Earth, in Swedish Pomerania, of the burden of thirty-eight heavy Swedish lasts, or thereabouts, now lying in Dover harbor, and Jacob Christopher Glasen, and Johan Hendrick Heuer, mariners, also belong- ing to the said vessel, and upon their faith and honesty solemnly de- ''■Collection of State Papers, vol. 11, p. 225. This protest relates to the Swedish ship which was alleged, in the correspondence between Spain and Sweden, to have been made use of by the English for the purpose of capturing the two frigates at Barcelona. The master and people made this protest respecting that transaction. OFFICIAL DOCUMENTS 241 clared, and for truth affirmed and witnessed by the interpretation of Roelof Symons, of Dover aforesaid, gentleman; that the said vessel took in ballast at Oporto, and set sail and departed from thence in good order and condition, staunch and tight, on the 19th day of July last past, with the wind favorable, bound to the Mediterranean in search of freight, and proceeded, with easterly winds and variable weather, without any thing particular occurring, until the 23d day of August following, when they arrived and brought up in the road of Alicant, and were there put under quarantine, and on the 25th in the afternoon released from such restraint, when the said master made inquiries for freight, but none could be obtained, and the wind was at north-east and east-south-east, and they replenished their stock of water and got in readiness to proceed ; and on the 28th weighed with a light breeze northerly, and steered for Barcelona; and on the 29th being under Cape Saint Martius, they were boarded by a Spanish privateer, and her crew took from the said vessel some stock fish and vegetables, and then quitted her, and they proceeded, with variable winds and weather, without any thing particular occurring, until the 3d day of September following, when, being between Sitger and the Castle de Fel, two other Spanish privateers rowed from the land to- wards the said vessel and hailed her, when the said master informed them they came from Alicant, and were destined to Barcelona ; and the people on board the said privateer then inquired whether the said ap- pearers had seen any English frigates or- other vessels, which being answered in the negative, the said privateers quitted the said vessel, and steered south-west, and it fell calm; and on the 4th, at hailf past one o'clock in the afternoon, a breeze sprung up at west-south-west by west, the point of Cape de Fel bearing north-west by west, distant about one and a half German miles, and they steered along the land for Barcelona aforesaid, and about five o'clock in the afternoon saw, under the land of Lobregat, a line of battle ship and a frigate with Spanish colors flying, and a boat and crew came from the shore, which the said appearers afterwards found belonging to the said line of battle ship ; and the crew speaking the English language, the said appearers found that the colors they had seen flying were false, and that the said ships of war were English; and the crew of the said boat then asked from whence the said vessel came, where bound, and what she was laden with? to which the said master replied, he came from Alicant with ballast, and intended going to Barcelona to procure a freight, and had 242 THE ARMED NEUTRALITY OF 1780 AND 1800 brought a cargo of staves from Pillau to Oporto ; whereupon the said boat's crew examined the said vessel's papers, and asked the said master if he had letters to any person in Spain, as, if he had, his said vessel would be a good prize; who replied, no such letters were on board; when the said boat and crew quitted the said vessel, and com- manded the said master to lay his top-sail back, and keep after the said line of battle ship, and that when they got on board, if a flag of any nation was hoisted, he might proceed on his voyage ; but no such flag was hoisted, and the said two ships of war kept in for the land, and fired a shot at the said appearers' vessel, which obliged them to follow ; and a boat with two ofticers and a great number of men came on board, and took the command and possession of the said vessel ; when the said master asked what was their intention for so doing? and the said officers replied, that they did not know, but were obliged to follow their commander's orders; and toward evening, when it came on to be dark, they kept out to sea with the top-sail constantly laid back, and then many boats (to the best of the said appearers' recollection eight in number) came alongside, filled with armed officers and men, and they got on board the said vessel, at which the said appearers were greatly alarmed ; and the said master asked the officer who commanded the man at the helm, what was intended to be done with the said vessel and her crew? who informed him, that the captain was on board, and that the said master might go forward and inquire of him, which he accordingly did ; and he commanded him to be silent, and spoke to another officer, who put a pistol to the said master's breast, and in- formed him, if he uttered a word to any man, a shot should end his existence; and they steering the said vessel for Barcelona Road, the said master begged he might be allowed to get her anchors ready, which was permitted; and while the same was doing, one of the crew spoke a few words, when an officer immediately jumped up, and would have killed him, had he not fortunately been prevented by another officer, and between eight and nine o'clock in the evening they arrived in Barcelona Road, and were hailed by a Spanish frigate riding at anchor, when the said master not being permitted to reply, one of the said English officers called out, "Sueco, Sueco," and a firing began from the said Spanish frigate at the said vessel, when the said English officers and people took to their boats and proceeded towards her, and the firing continuing, the said appearers put their helm a-lee, and ran into the cabin to prevent being shot, and soon afterwards the said firing OFFICIAL DOCUMENTS 243 ceased, when the said master and his crew got on the deck to- save the sails, and bring the said vessel up; and as soon as they had let'the anchor go, and hauled the foresails down, another firing commenced, by which Hans Peter Rubarth (the then mate of the said vessel, and brother to the said master) was shot through his left shoulder and arm, and fell to all appearance dead ; at which the said appearers were much alarmed, and let the said vessel drive with the little cable she had out, and hastened to assist him into the cabin ; and the said appearers discovered, that the said English officers and men captured in their said boats two Spanish frigates, in which they passed the said vessel, and the wind got more off the shore, and the firing continued, and the shots went over her abaft, and she drove into deep water; and, to prevent drifting out to sea, they let go both anchors, and made the sails fast, and, when the said two Spanish frigates had got out a considerable distance to sea, some Spanish gun-boats came near, where- upon the said appearers were much alarmed, apprehending they would still consider the said vessel an enemy, and sink her, and therefore hoisted a light as a signal that they were friends ; and the people on board the said gun-boats inquired if they had any Englishmen left, when the said master informed them there were not, but that his mate was severely wounded; when one of thesaid gun-boats came along- side, and her crew inquired if any other person was sick; and being answered that all the others were in perfect health, an officer came on board, who seeing the said master weeping over his wounded brother, promised to acquaint Mr. Almgren, the Swedish consul at Barcelona aforesaid, of his distress, and to send people on board, to assist in weighing the. anchors, and conduct the said vessel into the harbor of Barcelona aforesaid to obtain a surgeon ; that on the 5th one came on board with four men, and she was towed into the said harbor, and moored in a proper place to perform quarantine, and continued under such restraint ten days, and was then released, and during the same the said master was obliged to keep the said four men, and also the surgeon and two other men, to watch the said mate; and the rigging, sails, and yawl, which were shot and much damaged, 'they repaired and stoppered as well as they could, and as soon as prattle was obtained, the said mate was taken on shore to the hospital at Barcelona afore- said ; an(l the said master having obtained freight on the 9th day of October last, sailed from Barcelona aforesaid, but the said mate con- tinued so ill, he was obliged to be left in the said hospital. That in the 244 THE ARMED NEUTRALITY OF 1780 AND 1800 latter part of the month of December following, the said master re- ceivrti a letter, dated the 14th day of the said month, from Daniel Christopher Hingst, of Barth aforesaid, the owner of the said vessel stating that the said mate died of his wounds in the hospital of Barce- lona aforesaid, on the 29th day of the said month of October, leaving a widow and three infant children. And also' the said appearers declared, that they have been informed, and verily beHeve, that the said line of battle-ship is called the Minotaur, Capt. T. Lewis, but they have not been enabled to learn the name of the said English frigate, or of her commander, and that they used their utmost endeavors for the preservation of the said vessel ; that whatever damage or loss the same sustained was not occasioned by or through any neglect or default of them, or any of the then crew, or by reason of any defect or fault in the said vessel or her tackling, but merely by means of the said capture. Therefore the said master has desired a protest ; wherefore I, the said notary, at his request, have solemnly protested, and by these presents do protest, against the said Captain T. Lewis, and the other officers and crew of the said ship Minotaur, and also the officers and crew of the said English frigate, and every other person and cause occasioning the said capture and detention, of and for all losses, costs, charges, damages, demurrages, suits, and expenses already and hereafter to be suffered and sustained thereby, to be allowed and recovered in time and place convenient. Thus done and protested in Dover aforesaid, in the presence oi James Moo>n and John Finnings, witnesses thereto, called and requested. In testimony of the truth thereof, the said appearers, interpreter, and witnesses, subscribed their names in the registry of me the said notary; and I the said notary have hereunto set my hand, and affixed my notarial seal. Dated the day and year first above written. (Signed) Tho. Pain The said Martin Rubarth, Jacob Christopher Glasen, and Johan Henderick Heuer, were sworn on the Holy Evangelists to the truth of the aforegoing protest ; the said Roelof Symons being first sworn faith- fully to interpret to them, at Dover aforesaid, the said 7th day of February 1801, before me, (Signed) Tho. Pain A Master Extraordinary in Chancery Hoffnung, Martin Rubarth Master. Protest dated February 7th, 1801. OFFICIAL DOCUMENTS 245 Rqjly of Count Haugwitz to Lord Carysfort, February 12, 1801^ The undersigned, State and Cabinet Minister, has laid before His Prussian Majesty the two notes which Lord Carysfort, Envoy Extra- ordinary and Minister Plenipotentiary from His Majesty the King of Great Britain and Ireland, has done him the honor to- transmit to him on the 27th of January, and 1st of February last. The undersigned having it in commission to return an explicit and circumstantial answer, is under the necessity of informing Lord Carys- fort, that His Majesty can not see without the utmost grief and concern, the violent and hasty measures to which the Court of London has proceeded against the northern naval Powers. Error alone can have given occasion to these measures, as the assertions in the note of the 27th sufficiently show. In that it is said, that the maritime alliance "has for its object, to annul the treaties formerly concluded with England, and to prescribe laws to her, with respect to the principles of them; that the neutrality is only a pretext to impose these laws on her by force, and to establish a hostile alliance against her." Nothing, however, is farther from the above-mentioned negotiation, than the principles here supposed. It is founded in justice and modera- tion, and the communication of a copy of the convention to such of the belligerent Powers as had the justice and patience to wait for the same, will prove this beyond the possibility of a denial. When in the beginning of January the Minister of His Britannic Majesty officially proposed to the undersigned, the question, "whether the northern Courts had actually concluded the confederation which had been reported; and whether Prussia had acceded to it?" — the King conceived that the respect which sovereigns owe to each other, and the liberty possessed by every independent State to consult its own interests, without rendering an account to any other Power, authorized him to withhold any communications relative to himself and his allies ; and contented himself with answering, that as he had seen, without interfering, the connections which England had entered into without consulting him, he considered himself entitled to the same, confidence ; and that if the King of Great Britain thought it his duty to support the rights and interests of his kingdom. His Prussian Majesty con- sidered it as not less his duty to employ every means in the defense of the rights and interests of his subjects. ^Collection of State Papers, vol. 11, p. 229. 246 THE ARMED NEUTRALITY OF 1780 AND 1800 This answer might have sufficed a few weeks since ; but in the situa- tion in which affairs now are, the King thinks himself called upon to make an explicit declaration to the Court of London, relative to the spirit of the treaty, which has probably been attacked because it was not known, and which is far from having the offensive views of which the contracting Powers have been arbitrarily accused. They have expressly agreed, that their measures shall be neither hostile nor tend to the detriment of any country, but only have for their object the security of the trade and navigation of their subjects. They have been attentive to adapt their new connections to present circumstances. The strict justice of His Majesty the Emperor of Russia has, even in the detail, proposed modifications, which alone might be sufficient to indi- cate the spirit of the whole. It has since been determined, that the treaty shall not be prejudicial to those which had before been concluded with any of the belligerent Powers. It was also resolved, that this determination should be candidly communicated to those Powers, to prove the purity of the motives and views of the contracting parties. But England would not allow time for this ; had she waited this con- fidential communication, she might have avoided those intemperate measures which threaten to spread the flames of war still wider. Besides, it only depended on England, previously to draw satisfac- tory information from the correspondence with Denmark, if, instead of taking hold of two isolated passages, which Lord Carysfort, in his first note, extracted from Count Bernstorff's note of the 31st of De- cember, the Court of London had listened to the solemn declaration which it contained: "That it could never have been supposed for a moment that Denmark had formed hostile projects against England, or plans that could not subsist together with the maintenance of harmony between the two Crowns, and that the Court of Copenhagen congratulated itself on finding an opportunity for contradicting, in the most positive manner, such unfounded reports." This plain and precise declaration agrees with the language which the undersigned had used more than once to Lord Carysfort, when speaking on that subject; and it can scarcely be conceived how the English Court, after that declaration had been received, could conclude from the note of the Minister of Denmark, "That the engagements of the contracting Powers had for their object the introduction of principles of naval rights, which had never been acknowledged by the tribunals of Europe, and which were of a noptile te;idency against England." The conclu- OFFICIAL DOCUMENTS 247 sion is totally false, and, is not authorized even more by the contents of the answer of the Danish Court, than the other unmerited reproach made to it, "of having renewed an alliance of a hostile tendency against England, and of being actively employed in armaments with that view." Never were measures more evidently defensive, than the measures of the Court of Copenhagen, and their spirit will be misconceived still less, when it is considered what menacing demonstration that Court had experienced from the British Government, on occasion of the affair with the Freya frigate, before the above measures were resorted to. England's arbitrary conduct on this occasion is naturally explained byi the pretensions which it had made for some time past, and which it has repeatedly renewed in the notes of Lord Carysfort, at the expense of every commercial and naval Power. The British Government has, in the present more than in any former war, usurped the sovereignty of the seas; and by arbitrarily 'framing a naval code, which it would be difficult to unite with the true principles of the law of nations, it exercises, over the other friendly and neutral Powers, an usurped jurisdiction, the legality of which it maintains, and which it considers as an imprescriptible right, sanctioned by all the tribunals of Europe. The sovereigns have never conceded to England the privilege of calling their subjects before its tribunals, and of subjecting them to its laws, in cases where the abuse of power has got the better of equity, and which, alas ! are but too frequent. The neutral Powers have always had the precaution of addressing to it the most energetic reclamations and protests, but experience has ever proved their remonstrances fruit- less ; and it is not surprising, that, after so many repeated acts of op- pression, they have resolved to find a remedy against it, and for that purpose to establish a well-arranged convention, which fixes their rights, and which places them on a proper level even with the powers at war. The naval alliance, in the manner as' it has just been consolidated, was intended to lead to this salutary end, and the King hesitates not to declare to His Britannic Majesty, that he has again found in it his own principles, that he is fully convinced of its necessity and utility, and that he has formally acceded to the convention, which has been concluded on the 16th of December, last year, between the Courts of Russia, Denmark, and Sweden. His Majesty is, therefore, among the number of the contracting parties, and has bound himself, in that quality, not only to take a direct share in all the events which interest 248 THE ARMED NEUTRALITY OF 1780 AND 1800 the cause of the neutral Powers, but also, in virtue of his engagements, to maintain that connection by such powerful measures as the impulse of circumstances may require. The note of Lord Carysfort mentions a subject, to which His Majesty believes himself neither obliged to answer, nor even to have a right of entertaining an opinion with respect- to it. There exist discussions between the Courts of Petersburg and Lxindon, which have by no means anything to do with the business, which the latter has interwoven with it. But in the same measure in which the conduct of Prussia has hitherto been directed by the most blameless impartiality,, the King's conduct will henceforth be directed by his regard for engagements, which in themselves are a proof of it. To stipulations which contain nothing hostile, and which the safety of his subjects required, he owes all the means which Providence has laid in his power. Unpleasant as the extremes may be to which England has proceeded, yet His Majesty doubts not the possibility of a speedy return to conciliating and peaceable dispositions, and he relies on the sentiments of equity which, on former occasions, he has had the ad- vantage of meeting with in His Britannic Majesty. It is only by revoking, and by entirely taking off the embargo, that affairs can be brought to their former situation ; and it is for England to judge whether it ought to come to that resolution, in order to offer means to the neutral Powers for proceeding to those communications which they intended to make. But while those measures exist, which have been resorted to from hatred against a common principle, and against an alliance which can no longer be shaken, the hostile resolution, which must be the conse- quence, will be the necessary result of the treaty ; and the undersigned is ordered to declare to the Minister of His Britannic Majesty, that the King, while he expresses his concern at events of which he has not been the cause, will secretly fulfil the engagements prescribed to him by treaties. The undersigned' thus executing his orders, has the honor of assuring Lord Carysfort of his high esteem. (Signed) H'augwitz i2th February, i8oi. OFFICIAL DOCUMENTS 249 IRussian Proclamation interdicting the Transportation of Merchan- dise through Prussia, February 12, 180P His Excellency the Civil Governor and Counselor of State, Chevalier von Richter, has received the following communication from the Com- mercial College of the empire: "That His .Imperial Majesty, being convinced by experience, that the productions and merchandise of his empire were exported by Prussia into England, His said Majesty has thought proper to order, that the transportation of these productions and merchandises through Prussia, whether by land or sea, shall be severely prohibited ; and that, in order to accomplish this sovereign order, the most severe inspection shall take place, in conformity with the ukase of the 15th of December, 1800. The Commercial College ha-^, in consequence, required all civil governors, first, to communicate through the medium of the magistrates, this, order to the body of the merchants; secondly, to order the magistrates to instruct their brokers to insert, as a stipulation in their contract, whether made with foreign or Russian merchants, that the articles bought or sold shall not, under any preten,ce, be sent into Prussia by any channel. The two parties shall bind themselves to this. The magistrates are also bound to suffer none of the merchandises to pass thither on any pretence; and if any one shall refuse to obey this order, they are to seize the articles, and to send advice thereof forthwith." In consequence, this order, after being transmitted by his Excellency the Civil Governor in Council, in order to its being correctly executed, is, by these presents, communicated to the knowledge of all the mer- chants in this city. Dated Riga, February 12, 1801. Note of Count Wedel-Jarlsberg to the British Minister regarding the Embargo on Danish Vessels^ London, February 23, 1801. The undersigned, having informed the King his master of the official communication of Lord Grenville, dated the 15th January, last, has ^Collection of State Papers, vol. 11, p. 238. ^Collection of State Papers, vol. 11, p. 233. 250 THE ARMED NEUTRALITY OF 1780 AND 1800 received orders to declare, that His Majesty is deeply affected at seeing: the good understanding which has hitherto subsisted between Denmark and Britain, suddenly interrupted by the adoption of a measure as arbitrary as injui-ious on the part of Great Britain; and that he is not less afflicted and alarmed at seeing that measure justified by assertions and suppositions as unjust as ill founded. He remarks, with surprise, that, by confounding the cause of the measures taken in Russia against the interests of Great Britain, with the object of the convention rela- tive to neutral navigation, the British Government evidently mixes two affairs which have not the least connection with each other. It is a subject of perfect notoriety, that the incident of the occupation of Malta by the troops of His Britannic Majesty, has alone been the occasion of the embargo on the British ships in the ports of Russia, and that the Ministers of the neutral Courts at Petersburg acted according to their full powers and instructions anterior to that event. The dispute relat- ing to it is absolutely foreign to the Court of Copenhagen. It knows neither its origin nor foundation, or at least but very imperfectly, and its engagements with Petersburg have no relation whatever to it. The nature of these engagements has been solemnly declared to be only defensive ; and it is inconceivable how general principles, conformable to every positive obligation, and modified according to the stipulations oi treaties, could be justly considered as attacks on the rights or dignity of any State whatever. While the Powers who profess them require only their acknowledgment, the conflict of principles reciprocally main- tained, can not be provoked but by those means which, operating as a denial of facts, place them in direct and inevitable opposition. The undersigned, by order of the King his master, calls the serious attention of the British Government to these reflections, and to these just and incontrovertible truths ; they are analogous to the loyal sentiments of a sovereign, the ancient and faithful ally of Great Britain, who is not only incapable of offering, on his part, any injuries real or voluntary, but who has well-founded titles to a return of forbearance and justice. The prompt cessation of proceedings hostile to the interests of Den- mark, is a circumstance to which His Majesty still looks forward with the confidence he has ever wished to entertain with regard to His Britannic Majesty ; and it is in his name, and conformably to the instructions expressed on his part, that the undersigned insists on the embargo placed on the Danish vessels in the ports of Great Britain, being immediately taken off. By a constant series of moderation on; OFFICIAL DOCUMENTS 251 the part of the King, the measures to which the outrageous proceed- ings of the British Government authorized him to have had recourse, have been suspended, His Majesty deeming it an act of glory to give, ty this means, a decisive proof of the falsehood of the suspicions advanced against him, and of the doubts thrown on his intentions. But if, contrary to all expectation, the British Government persists in its violent resolution, he will see himself, with regret, reduced to the urgent necessity of exerting those means which his dignity and the interests of his subjects will imperiously prescribe. (Signed) Wedel-Jarlsberg Note of Count Wedel-Jarlsberg to the British Minister regarding the Embargo on Danish Vessels^^ London, March 4, 180 1. The undersigned has constantly reposed an unlimited confidence in the sentiments and moderation of His Britannic Majesty. He has con- sequently only endeavored, in the preliminary note of Lord Hawkes- bury, dated the 25th of last month, in answer to his official note of the 23d, to discover the expression of an assurance of these sentiments which should be transmitted to Copenhagen ; and he is persuaded that the effect of them on the part of His Britannic Majesty will be mani- fested, by calling, in the most efifacious and satisfactory manner, the attention of the Government to the representations of His Danish Majesty, transmitted through the organs and offices of the undersigned. But as- the adoption of conciliatory measures is constanly found sus- pended, and as, on the contrary, those of violence and injustice are daily accumulating, the undersigned can not acquiesce, in silence, in the continuation of this state of things, which only tends to bar the way to amicable explanations, and to compromise the dearest interests of each nation. He hastens, in consequence, to renew with earnestness, the demand made in the name of his Court, that the embargo placed on the Danish vessels should be immediately taken ofif. And, in ex- ^Collection of State -Papers, vol. 11, p. 234. 252 THE ARMED NEUTRALITY OF 1780 AND 1800 pectation of a satisfactory answer, he has the honor to assure his Excellency Lord Hawkesbury of his respectful consideration. (Signed) Wedel-Jarlsberg Note of Baron Ehrensward to Lord Hawkesbury regarding the Em- bargo on Swiedish Vessels, March 4, 180P The undersigned, Minister Plenipotentiary of His Swedish Majesty, has the honor to transmit to his Excellency Lord Hawkesbury, first Secretary of State of His Britannic Majesty, a printed copy of the naval convention concluded on the 16th Dec. 1800, between His Swedish Majesty and His Majesty the Emperor of all the Russias, as well as a printed copy of the naval regulations which the King has recently ordered to be drawn up. The undersigned, who, at the command of his Court, has the honor to make this communication to the Minister of His Britannic Majesty,, has it likewise in commission expressly to declare, that Their Majesties, by the said naval convention, have reciprocally determined and settled those rights which, as neutral Powers, they believe themselves entitled to, and by the naval regulations have ascertained those duties, for the performance and observance of which, on the part of their subjects, they, as neutral Powers, make themselves answerable. The object'of Their Majesties is to confirm and strengthen their rights of neutrality, and to promote the repose of their respective States, by the naval convention they have entered into;, and nothing is farther from their intention than by such a step to provoke hostilities. The respect which is due to the rights of nations and to treaties, the consciousness that their own interests are inseparably united with the interests and the love of justice and peace, are the only motives by which Their Majes- ties have been actuated: they have, therefore, learnt, with the greatest astonishment, that the first news of the conclusion of this convention in England, has been the occasion of so violent a measure as that of laying an embargo on the Swedish ships. So far from desiring to introduce any innovations with respect to ''■Collection of State Papers, vol. 11, p. 235. OFFICIAL DOCUMENTS 253 the maritime State of Europe, by the assertion of their rights of neu- trahty, Their Majesties are sensible that it gives no power whatever where those rights were not acknowledged by former treaties. England has seen those treaties ; England has seen those treaties executed ; they were officially communicated to her, and she did not protest against them. In like manner it was, with regard to the convention of 1780 and 1781 ; and the Ministry, who now proceed with so much violence, know that the partial renewal of that convention between Sweden and Denmark in 1794, and the armament that followed, operated, during a period of three years, without ever being considered as grounds for hostilities ; yet a similar convention is now deemed an hostile confed- eracy against England. A line of conduct so contradictory, proceeds not from the circumstance of the principles and claims of neutral rights having been now enforced ; but it seems to have its foundation in that maritime system which England has established in the course of the present war. It appears also, that that Government, which Europe, from its pacific sentiments, has so often endeavored to con- vince of the injustice of its pretensions, has now determined to com- mence a war for the subjection of the sea, after it has rendered itself so renowned in the war undertaken for the freedom of Europe. If the British Minister will refer to the conduct of England against Sweden, and the neutral Powers in general, during this war, he will find the real cause why His Swedish Majesty has been induced to believe that the formal alliance of several Powers, acting upon the same principles, would more effectually tend to convince the Court of London of the validity of those principles, than by any one Power renewing those reclamations which have hitherto been made in vain ; at the same time His Majesty never supposed that such an alliance would be considered as an act of hostility. The British Minister complains that the Court of London was not before instructed of the intention of the respective Courts to renew the convention of 1780; but in the same note he states, that England had entered into engagements this war with its allies respecting neutrals ; thus the avowal pf the British Minister is an answer to his own charge. If His Majesty was not fully convinced of the innocence of his intentions, and if he was desirous of deviating from that line of moderation he has ever observed, he might make an invidious and censurable enumeration of the conduct of England ; of the unpunished offenses of the commanders of English ships of war, even in Swedish 254 THE ARMED NEUTRALITY OF 1780 AND 1800 harboTs ; of the inquisitorial examinations which the captains and crews of the ships detained, as well in the West Indies as in England, have been subject; of the detention of the convoy in 1798; of the deceitful chicanery with which the proceedings of the courts of admiralty were accompanied; of the absolute denial of justice in many instances; and lastly, by the insult offered to the Swedish flag at Barcelona. His Swedish Majesty must, doubtless, state among the offenses of which he has cause to complain, that after one of his Ministers had been ' sent to the British Court, its aggressions, instead of being admitted and remedied, were justified. But he has sought no revenge; His Majesty wishes only to procure that security to his flag to which it is entitled. In consequence of this sentiment, the undersigned is em- powered to declare, that the British Court shall acknowledge the rights of Sweden; that it shall do justice with regard to the convoys detained in 1798, as well as respecting the violence offered to the Swedish flag at Barcelona ; and above all, that it shall take off the embargo which has been so unjustly laid on the Swedish ships. His Majesty will, with the greatest pleasure, see his ports again opened to the trade of England, and the ancient good understanding between the two Courts renewed. His Majesty, impressed with the dignity due to his empire, has, in consequence of the embargo laid upon the Swedish ships, placed a similar -embargo on all English vessels in the harbors of Sweden. As the pacific tendency of the present convention has been proved to a demonstration. His Majesty therefore hopes that no consideration, respecting any accidental occurrence which may have taken place be- tween the ally of His Majesty the Emperor of Russia and the Court of London, will be introduced. The act of the convention itself proves, that its bases are the rights of neutrality, and that it is in its nature tmconnected with every other subject of dispute. While the undersigned Minister Plenipotentiary of His Swedish Majesty recommends the contents of this present note to the earnest consideration of the Minister of His Britannic Majesty, he has the honor to entreat that his Excellency Lord Hawkesbury will transmit him an answer, which he hopes will speak the sentiments of the King his master. His Majesty has commanded the undersigned to present this to his Excellency. Should the conciliatory views with which it was dictated prove fruitless, it is His Majesty's opinion, that the presence of the undersigned at the Court of London will no longer be of any advantage. OFFICIAL DOCUMENTS 255 The undersigned has the honor to assure his Excellency Lord Hawkesbury of his highest esteem. (Signed) The Baron von Ehrensward London, March 4, 1801. Reply of Lord Hawkesbury to Baron Ehrensward, March 7, 1801^ The undersigned, His Majesty's principal Secretary of State for Foreign Affairs, has the honor to acknowledge the receipt of the note of Baron Ehrensward, His Swedish Majesty's Minister Plenipotentiary, of the date of the 4th instant; His Majesty has already repeatedly communicated his fixed unalterable determination to maintain those established principles of maritime law which have been found, by the experience of ages, best calculated to afford equal security to the just rights and interests, as well of neutral as of belligerent powers. The explanations attempted to be given to the present convention, have in no degree weakened the impression which the first perusal of it produced, that the views and motives of the contracting Powers were hostile to His Majesty's dominions; and this impression is most fully confirmed by the consideration, that the northern Courts have recurred to the principles of the convention of 1780 at a moment when the circumstances of the war and the relative state of the navies of the belligerent Powers, convert that which was pretended to be a measure of common equity to all countries, into an instrument of exclusive injury to Great Britain. Under these circumstances, the embargo on Swedish vessels can be considered in no other view than as an act of just and necessary precaution, which will not be revoked so long as the Court of Stock- holm contmues to form a part of a confederacy which has for its object to impose by force on His Majesty a new system of maritime law, inconsistent with the dignity and independence of his Crown, and the rights and interests of his people. The undersigned requests Baron Ehrensward will accept the assur- ance of his high consideration. (Signed) Hawkesbury Downing Street, March 7, 1801. ^Collection of State Papers, vol. 11, p. 238 256 THE ARMED NEUTRALITY QF 1780 AND 1800 Manifesto of His Highness Prince Charles, March 28, 1801, regard- ing the Danish Occupation of the City of Hamburgh By the express command of His Majesty the King of Denmarlc and Norway, it is hereby declared : The attacks made by the EngHsh Government, in opposition to all the principles of the laws of nations, against the navigation and trade of those Powers that have confederated together for the purpose of securing and maintaining the rights of neutral flags ; and the arbitrary and powerful measures adopted by that Government, notwithstanding the most pressing and continued remonstrances ; have imposed on these Powers the disagreeable necessity of taking every previous step that may serve to bring the said Government to a fnore just way of thinking. As the exclusion of the English navigation and trade from the Elbe, must be an effectual means of promoting this object; and as the pos- session, for a time, of the Imperial city of Hamburg has been con- sidered as unavoidably necessary for that purpose ; His Danish Majesty, unwilling as he is to adopt a measure of this kind, has been obliged to give way to a crowd of imperious circumstances ; and conse- quently has charged me to carry the measure into execution with the troops under my command. Conformably to the positive orders enjoined me, I will most vigilantly take care, that the strictest discipline shall be observed by the troops that enter the city, while they remain there; and that the tranquillity, the property, and municipal rights of the inhabitants shall not only be undisturbed and unmolested, but that the same shall be most carefully preserved and guarded for them. I expect, therefore, that all persons shall conduct themselves peaceably and friendly towards the royal troops commanded by me; and that nobody shall find fault with that necessary severity which must be put in force in case of a contrary behavior. Charles, Prince of Hesse PiNNEBERG, March 28, 1801. '^Collection of State Papers, vol, 11. p. 242. OFFICIAL DOCUMENTS 257 Proclamation of the Senate of Hamburg regarding the Danish Oc- cupation of the City, March 29, 1801^ As circumstances of a political nature have created the necessity for the Imperial Danish troops to remain in the neighborhood of this city, and as nothing is to be apprehended on that account, either with respect to the freedom and independence of the State, or the property and safety of the inhabitants ; therefore the most illustrious Senate exhort all citizens and inhabitants to confide in their pressing intercessions upon the occasion ; and that, with the assistance of the College of Citi- zens, they will do their utmost for the advantage and safety of the State. And the most illustrious Senate trust that every one will demean himself peaceably and obediently, and especially with decency and propriety towards the foreign military; by which alone the general safety can be ensured, and those inconveniences avoided, to which any inconsiderate and opposite conduct would inevitably subject the city. Given at our Senate-house, the 29th March 1801. Danish Ordinance of March 29, 1801, laying an Embargo on English Ships and Goods^ We Christian VII, etc., declare as follows: Whereas all amicable means for taking off the embargo laid on the ships and property of our subjects in English ports, have proved fruitless; we have been obliged to give directions that all ships and goods belonging to the subjects of the British Government, and which are now in our ports, shall be detained and laid under an embargo. All magistrates of towns, and officers of our customs, are directed to assist in carrying this measure into effect. The same persons are to prepare every thing that is necessary for the preservation of the goods and ships so detained ; and every care must be taken of the crews of the ships. Given under our hand and seal at Copenhagen, on the 29th of March 1801. CHRISTIAN R. ^Collection of State Pajjers, vol. 11, p. 242. ^Collection of State Papers, vol. 11, p. 243. 258 THE ARMED NEUTRALITY OF 1780 AND 1800 Declaration of the King of Prussia, March 30, 1801, to the Royal and Electoral College at Hanover and to the Commanders of theii Hanoverian Troops '■ In consequence of the oppressions which neutral navigation and com- merce have sustained on the part of the English navy, since the com- mencement of this war, the different Powers therein interested could no longer abstain, after so many ineffectual complaints, from protecting their violated rights with a greater degree of energy. The result was the convention fonned on the 16th of December, 1800, at St. Petersburg, between Russia, Denmark and Sweden, the just and moderate principles of which had formerly been adopted and followed by the Court of London itself; and His Majesty the King of Prussia, who had likewise felt this violence injurious to his States and his flag, did not hesitate to accede to that treaty. The contracting Courts were on the point of communicating to the belligerent Powers the convention they had agreed to, and of forming arrangements with them, when England, by an unexpected proceeding, disconcerted this amicable design, by laying an embargo on all the vessels of the naval Powers of the north in her ports, and thus declaring herself their enemy. It might have been expected that His Majesty the King of Prussia would not regard this conduct with satisfaction or indifference. Ac- cordingly he soon after transmitted to the Court of London the declara- tion already known, of the 12th of February, formally and publicly avowing his accession to the convention of St. Petersburg, and indicat- ing, at the same time, the means by which the differences that had taken place might be accommodated, and a total rupture avoided. But, instead of adopting the proposed expedient, England passed over in silence the answer transmitted to Lord Carysfort, at Berlin. She continued to treat the flags of the north in a hostile manner ; and in a note transmitted by the Secretary of State, Lord Hawkesbury, to the Swedish Envoy, Baron Ehrensward, dated the 7th of March, at London, she has once more manifested those false principles which have been so often refuted : Under these circumstances, the embargo on Swedish vessels can be considered in no other view than as an act of just and necessary precaution, which will not be revoked, so long as the Court of ''■Collection of State Papers, vol. 11, p. 243. OFFICIAL DOCUMENTS 259 Stockholm continues to form a part of a confederacy, which has for its object, to impose by force on His Majesty a new system of maritime law, inconsistent with the dignity and independence of his Crown, and the rights and interests of his people. A similar, declaration was soon after sent to the Court of Denmark, adding, that she .must abandon the coalition of the north, and enter into a separate negotiation with England. After receiving a negative answer, the English Charge d'Affaires, Drummond, and the Pleni- potentiary Extraordinary, Vansittart, left Copenhagen on the same day ; and in the mean time the English fleet, under the orders of Admiral Sir Hyde Parker, destined for the Baltic Sea, had actuaUy arrived on the coasts of Zealand. It appears from all these events, that the Court of London has no inclination to desist from her inadmissible demands, and accept the proposed means of amicable conciliation. His Majesty the King of Prussia therefore feels himself compelled, in conformity to the obliga- tions he has contracted, to take the most efficacious measures in support of the convention attacked, and to retaliate for the hostile proceedings against it: for this purpose, he will not only shut the mouths of the Elbe, and Weser, and the Ems, but likewise take possession of the States belonging to His Majesty the King of England, as Elector of Brunswick Lunenberg, situate in Germany. His Majesty the King of Prussia accordingly demands and expects from the Electoral College of Privy Councilors at Hanover, and from the Board of Generals, that they will submit to this disposition without delay or reply; and that they will voluntarily obey the orders which shall be given relative to the occupation of the electorate by the Prus- sian troops, and likewise with respect to the electoral countries. His Majesty principally demands that the Hanoverian corps which has hitherto occupied part of the northern line of demarcation, shall be disarmed and be disbanded, with a proportional part of the other troops. His Majesty requires that the generals and other officers shall engage in writing, not to serve against His Majesty the King of Prussia; but, on the contrary, to follow strictly his orders until the present affair be brought to a conclusion. The troops which shall continue embodied, shall be cantoned, part on the right bank of the Leine, and part on the left bank of the Aller, and behind the Luhe as far as the Elbe, where they shall remain distributed among the towns of Hanover, Gifhorn, Belgen, Lunenberg, and the other smaller towns and villages of that 260 THE ARMED NEUTRALITY OF 1780 AND 1800 district. All the other places, including the fortress of Hamein, shall be delivered up to the Prussian troops, under the orders of Lieutenant General Klein. His Majesty declares, at the same time, that the Prussian troops shall be subsisted at the expense of the electoral territory, commencing from the end of the month of April. His Majesty has sent his Cabinet Minister, Count Schullenburg to notify the present declaration to the Electoral College of Privy Councilors and commanders of troops. In these circumstances, all connection between the Electoral College and His Majesty the King of England will cease; and the authorities are, in consequence, responsible to His Majesty the King of Prussia for their administration and the revenues. In case, as it is to be hoped, of a voluntary submission. His Majesty is disposed, and ready to prom- ise solemnly, as well to the nobility as to the burgesses and to all the inhabitants of the electorate, the complete enjoyment of tranquility, and the security of their property. But, on the contrary, should the Government and the general officers attempt to impede the execution of the measures taken, and oppose the entrance of the Prussian troops, His Majesty would be obliged, though against his inclination, to revoke his promises, and to treat the electoral States in a hostile manner. The civil and military officers are there- fore responsible for the fatal consequences which may in this case result from their conduct. For this reason His Majesty advises them to submit to this summons, and to prevent the rigorous measures which will inevitably be adopted in case of a refusal. By order of His Majesty, (Signed) Haugwitz Berlin, March jo, i8oi. Instructions from the British Admiralty to Admiral Dickson, April 3, 180P Whereas we transmitted to Lord Grenville late one of His Majesty's principal secretaries of state your letter to our secretary dated the iThorvald Boye, op. cit., p. 359. OFFICIAL DOCUMENTS 261 16 of last month with letter which accompanied it from Captain John Hampstead commander of His Majesty's ship Squirrel repre- senting that in pursuance of the orders he had received from you to proceed to the coast of Norway and knowing there were several ves- sels in the harbor of Oster Risoer he had entered the said harbor and on the next morning had brought away the Swedish vessels named in the margin; and whereas Lord Hawkesbury (who hath succeeded his Lordship) hath by his letter of the 27 instant signified to us His Majesty's pleasure that the four ships and vessels above men- tioned belonging to the subjects of His Swedish Majesty should be immediately released and be allowed to return with their masters and crews to the ports from whence they were brought away and to fur- nish them with the necessarj^ passports for that purpose and also to signify to Captain Hampstead His Majesty's disapprobation' of his proceedings on that occasion in the strongest terms. Given the 3 April, 1801. W. Eliot • I. Ironbridge J. Markham To Archibald Dickson, Esq., Admiral of the Blue No. Yarmouth. Convention of June 17, 1801, between Great Britain and Russia' relative to Neutral Trade and Additional Articles of October 20, 1801 ^ In the Name of the Most Holy and Undivided Trinity: The mutual desire of His Majesty the King of the United King- dom of Great Britain and Ireland, and of His Majesty the Emperor of all the Russias, being not only to come to an understanding between themselves with respect to the differences which have lately inter- rupted the good understanding and friendly relations which subsisted ^Translation. British and Foreign State Papers, vol. 1, pt. 1, p. _40S. 262 THE ARMED NEUTRALITY OF 1780 AND 1800 between the two States ; but also to pre\ent, by frank ancf precise ex- planations upon the navigation of their respective subjects, the re- newal of similar altercations and troubles which might be the. conse- quence of them; and the common object of the solicitude of Their said Majesties being to settle, as soon as can be done, an equitable ar- rangement of those differences, and an invariable determination of their principles upon the rights of neutrality, in their application to their respective monarchies, in order to unite more closely the ties of friendship and good intercourse, of which they acknowledge the utility and the benefits, have named and chosen for their plenipotentiaries, viz.: His Majesty the King of the United Kingdom of Great Britain and Ireland, Alleyne Lord Baron St. Helens, His said Majesty's Privy Counsellor and his Ambassador Extraordinary and Plenipoten- tiary to His Majesty the Emperor of all the Russias; and His Maj- esty the Emperor of all the Russias, Sieur Nikita Count de Panin, his P»ivy Counsellor, Minister of State for the Department of For- eign Affairs, present Chamberlain, Knight Grand Cross of the Order of St. Alexander Newsky, and of St. Anne of the First Class, of that of St. Ferdinand, and of Merit, of the Red Eagle, and of St. Lazarus ; who, after having communicated their respective full powers, and found them in good and due form, have agreed upon the following points and articles : Article 1 There shall be hereafter between His Britannic Majesty and His Imperial Majesty of all the Russias, their subjects, the states and countries under their dominion, good and unalterable friendship and understanding, and all the political, commercial, and other relations of common utility between the respective subjects, shall subsist as formerly, without their being disturbed or troubled in any manner whatever. Article 2 His Britannic Majesty and the Emperor of all the Russias declare, that they will watch over the most rigorous execution of the prohibi- tions against the trade of contraband of their subjects with the ene- mies of either of the two high contracting Parties. OFFICIAL DOCUMENTS 263 Article 3 His Britannic Majesty and His Imperial Majesty of all the Russias, having resolved to place under a sufficient safeguard the freedom of commerce and navigation of their subjects, in case one of them shall be at war, whilst the other shall be neuter, have agreed: 1. That the ships of the neutral Power may navigate freely to the ports, and upon the coasts of the nations at war. 2. That the effects embarked on board neutral ships shall be free, with the exception of contraband of war, and of enemy's property; and it is agreed not tO' comprise under the deno^mination of the latter, the merchandise of the produce, growth, or manufacture of the coun- tries at war, which should have been acquired by the subjects of the neutral Power, and should be transported for their account, which merchandise can not be excepted in any case from the freedom granted to the flag of the said Power. 3. That in order to avoid all equivocation and misunderstanding of what ought to be considered as contraband of war. His Britannic Majesty and His Imperial .Majesty of all the Russias declare, con- formably to Article 11 of the treaty of commerce concluded between the two Crowns, on the 10th (21st) February, 1797, that they ac- knowledge as such the following articles only, viz. : cannons, mortars, fire-arms, pistols, bombs, grenades, balls, bullets, firelocks, flints, matches, gunpowder, saltpetre, sulphur, cuirasses, pikes, swords, ,^v/ord-belts, knapsacks, saddles and bridles, excepting, however, the quantity of the said articles which may be necessary for the defense of the ship, and those who compose the crew ; and all other articles \vhatever not enumerated here shall not be reputed warlike and naval stores, nor be subject to confiscation, and of course shall pass freely, without being subjected to the smallest difficulty, unless they be con- sidered enemy's property in the sense above specified. It is also agreed, that that which is stipulated in the present article shall not be prejudi- cial to the particular stipulations of one of the other Crown with other Powers, by which articles of a similar kind should be reserved, prohibited, or permitted. 4. That in order to determine what characterizes a blockaded port, that denomination is given only to a port where there is, by the dis- positions of the Power which attacks it with ships, stationary or suffi- ciently near, an evident danger in entering. 264 THE ARMED NEUTRALITY OF 1780 AND 1800 5. That the ships of the neutral power shall not -be stopped but upon just causes and evident facts : that they be tried without delay, and that the proceeding be always unform, prompt, and legal. Tn order the better to ensure the respect due to these stipulations, dictated by the sincere desire of conciliating every interest, and t' give a new proof of their uprightness and love of justice, the high contracting Parties enter here into the most formal engagement to re- new the severest prohibitions tO' their captains, whether of ships of war or merchantmen, to take, keep or conceal, on board their ships, any of the articles which, in the terms of the present convention, may be reputed contraband, and respectively to take care of the execution of the orders which they shall have published in their admiralties, and wherever it shall be necessary. Article 4 The two high contracting Parties, wishing also to prevent all sub- ject of dissension in future, by limiting the right of search of mer- chant ships going under convoy, to those cases only, in which the bel- ligerent Power might experience a real prejudice by the abuse of the neutral flag, have agreed: 1. That the right of searching merchant ships belonging to the sub- jects of one of the contracting Powers, and navigating under convoy of a ship of war of the said Power, shall only be exercised by ships of war of the belligerent Party, and shall never extend to letters-of- marque, privateers, or other vessels, which do not belong to the royal or imperial fleet of Their Majesties, but which their subjects shall have fitted out for war. 2. That the proprietors of all merchant ships belonging to the sub- jects of one of the contracting Sovereigns, which shall be destined to sail under convoy of a ship of war, shall be required, before they re- ceive their sailing orders, to produce to the commander of the convoy, their passports and certificates, or sea letters, in the form annexed to the present treaty. 3. That when such ship of war, having under convoy merchant ships, shall be met with by a ship or ships of war of the other con- tracting Party, who shall then be in a state of war, in order to avoid all disorder, they shall keep out of cannon shot, unless the state of the sea, or the place of meeting, render a nearer approach necessary ; and OFFICIAL DOCUMENTS 265 the coni'mander of the ship of the belligerent Power shall send a boat on board the convoy, where they shall proceed reciprocally to the verification of the papers and certificates that are to prove on one part, that the ship of war is authorized to take under its escort such or such merchant ships of its nation, laden with such a cargo, and for such a port ; on the other part, that the ship of war of the bellige- rent Party belongs to the royal or imperial fleet of Their Majesties. 4. This verification made, no search shall take place, if the papers are found in form, and if there exists no good motive for suspicion. In the contrary case, the commander of the neutral ship of war (being duly required thereto by the commander of the ship or ships of war of the belligerent Power) is to bring to and detain his convoy during the time necessary for the search of the ships which compose it, and he shall have the faculty of naming and delegating one or more offi- cers to assist at the search of the said ships, which shall be done in his presence, on board each merchant ship, conjointly with one or more officers appointed by the commander of the ship of the bellige- rent Party. 5. If it happen that the commander of the ship or ships of the Power at war, having examined th? papers found on board, and having interrogated the master and crew of the ship, shall see just and suffi- cient reason to detain the merchant ship in order to proceed to an ulterior search, he shall notify such intention to the commander of the convoy, who shall have the power to order an officer to remain on board the ship thus detained, and to assist at the examination of the cause of her detention. The merchant ship shall be carried immedi- ately to the nearest and most convenient port belonging to the bellige- rent Power, and the ulterior search shall be carried on with all possible diligence. Article 5 It is in like manner agreed, that if any merchant ship thus convoyed should be detained without just and sufficient cause, the commander of the ship or ships of war of the belligerent Power shall not only be bound to make to the owners of the ship and of the cargo, a full and perfect compensation for all the losses, expenses, damages, and costs, occasioned by such a detention, but shall moreover undergo an ulterior punishment for every act of violence, or other fault which he may have committed, according as the nature of the case may require. On 266 THE ARMED NEUTRALITY OF 1780 AND 1800 the other hand the convoying ship shall not be permitted, under any pretext whatsoever, to resist by force the detention of the merchant ship or ships by the ship or ships of war of the belligerent Power; an obligation to which the commander of a ship of war with convoy IS not bound to observe towards letters of marque and privateers. Article 6 The high contracting Parties shall give precise and efficacious or- ders, that the judgments upon prizes made at sea shall be conformable with the rules of the most exact justice and equity; that they shall be given by judges above suspicion, and who shall not be interested in the affair in question. The government of the respective States shall teke care that the said decisions shall be speedily and duly executed, according to the forms prescribed. And in case of an unfounded de- tention, or other contravention to the regulations stipulated by the present article, the owners of such ship and cargo shall be allowed damages proportioned to the loss occasioned thereby. The rules to observe for these damages, and for the case of unfounded detention, as also the principles to follow for the purpose of accelerating the process, shall be the matter of additional articles, which the contract- ing Parties agree to settle between them, and which shall have the same force and validity as if they were inserted in the present act. For this effect, Their Britannic and Imperial Majesties mutually en- gage to put their hand to the salutary work, which may serve for the completion of these stipulations, and tO' communicate to each other, without delay, the views which may be suggested to them by their equal solicitude to prevent the least grounds for dispute in future. Article 7 To obviate all the inconveniences which may arise from the bad faith of those who avail themselves of the flag of a nation without belonging to it, it is agreed to establish for an inviolable rule, that any vessel whatever, in order to be considered as the property of the country, the flag of which it carries, must have on board the captain of the ship, and one-half of the crew of the people of that country, and the papers and passports in due and perfect form; but every vessel which shall not observe this rule, and which shall infringe the ordinances published on that head, shall lose all rights to the protec- tion of the contracting Powers. OFFICIAL DOCUMENTS 267 Article 8 The principles and measures adopted by the present act shall be alike applicable to all the maritime wars in which one of the two Powers may be engaged, whilst the other remains neutral. These stipulations shall in consequence be regarded as permanent, and shall serve for a constant rule to the contracting Powers in matters of commerce and navigation. Article 9 His Majesty the King of Denmark, and His Majesty the King oi Sweden, shall be immediately invited by His Imperial Majesty, in the name of the two contracting Parties, to accede to the present conven- tion, and at the same time to renew and confirm their respective treaties of commerce with His Britannic Majesty; and His said Ma- jesty engages, by acts which shall have established that agreement, to render and restore to each of these Powers, all the Prizes that have been taken from them, as well as the territories and countries under their Dominion, which have been conquered by the arms of His Britannic Majesty since the rupture, in the state in which those possessions were found at the period at which the troops of His Britannic Majesty entered them. The orders of His said Majesty for the restitution of those prizes and conquests shall be immediately expedited after the exchange of the ratifications oi the acts by which Sweden and Denmark, shall accede to the present treaty. i Article 10 The present convention shall be ratified by the two contracting Parties, and the ratifications exchanged at St. Petersburg in the space of two months at furthest from the day of the signature. In faith of which, the respective plenipotentiaries have caused to be made two copies thereof, perfectly similar, signed with their hands, and have caused the seal of their arms to be affixed thereto. Done at St. Petersburg, the 5/17 June, 1801. (L. S.) St. Helens (L. S.) N. Cte. de Panin 268 THE ARMED NEUTRALITY OF 1780 AND 1800 ' Formula of the passsports and sea letters which are to be delvt'cred, in the respective admiralties of the States of the two high con- ■ tracting Parties, to the ships and vessels which shall sail from them conformable to Article 4 of the present treaty Be it known that we have given leave and permission to N , of the city or place of N , master and conductor of the ship N , belonging to N , of the port of N , of tons or thereabouts, now lying in the port or harbor of N- , to sail from thence to N , laden with N , on account of N , after the said ship shall have been visited before its departure in the usual man- ner by the officers appointed for that purpose; and the said N- , or such other as shall be vested with Powers to replace him, shall be obliged to produce in every port or harbor which he shall enter with the said vessel to the officers of the place, the present licence, and to carry the flag of N , during his voyage. In faith of which, etc. ' Additional Articles, signed at Moscow, the 20th October, 1801 Whereas by the 7th article of the convention concluded the 5/17tli June, 1801, between His Britannic Majesty and His Imperial Majesty of all the Russias, it was stipulated that the two high contracting Parties should mutually agree on some additional articles, which should fix the regulations and principles to be observed, as well for accelerating the judicial proceedings upon captures made at sea, as for the damages which should be allowed to the owners of neutral ships and cargoes, in cases of unfounded detention. Their said Majes- ties have named and authorized for this purpose, namely : His Majesty the King of the United Kingdom of Great Britain and Ireland, Alleyne Lord Baron St. Helens, a Peer of the said United Kingdom, one of His said Majesty's Most Honorable Privy Council, and his Ambassador Extraordinary and Plenipotentiary to His Ma- jesty the Emperor of all the Russias; and His Majesty the Emperor of all the Russias, the Sieur Alexander, Prince de Kourakin, his Vice Chancellor, Actual Privy Counselor, Minister of the Council of State, Actual Chamberlain, Grand Chancellor of the Sovereign Order of St. John of Jerusalem, and Knight of the Russian Orders of St. Andrew, of St. Alexander Newslcy, and of St. Anne of the First Class ; of those of Prussia, of the Black and Red Eagles ; of those of Denmark, of the Dannebrog, and of the Perfect Union; and Grand OFFICIAL DOCUMENTS 269 Cross of the Sovereign Order of St. John of Jerusalem ; and the Sieur Victor Count de Kotschoubey, his Actual Privy .Counselor Minister for the Department for Foreign Affairs, Senator, Actual Chamberlain, and Knight of the Orders of St. Alexander Newsky, of St. Vladimir of the Second Class ; and Commander of the Sov- ereign Order of St. John of Jerusalem : who, in virtue of their re- spective full powers, have agreed upon the following articles : Article 1 In case of unfounded detention or other contravention of the estab- lished regulations, the owners of the vessel and cargo so detained shall be allowed compensation for each day's demurrage, proportion- ate to the loss they shall have suiJtained, according to the freight of the said ship, and the nature of its cargo. Article 2 If the Ministers of one of the high contracting Parties, or any other persons accredited by the same to the belligerent Power, should re- monstrate against the sentence which shall have been passed by the respective courts of admiralty upon the said captures, appeal shall be made in Russia, to the directing Senate, and in Great Britain, to His Majesty's Privy Council. Article 3 Care shall be taken, on both sides, scrupulously to examine whether the regulations and precautions agreed upon in the present convention have been observed, which shall be done with all possible dispatch 1'he two high contracting Parties moreo\'er mutually engage to adopt the most efi&cacious measures, in order to prevent the sentences of their several tribunals, respecting captures made at sea, being subject to any unnecessary delay. Article 4 The goods in litigation can not be sold or unloaded before final judgment without an urgent and real necessity, which shall have been proved before the court of admiralty, and by virtue of a commission to this effect; and the captors shall by no means be permitted to re- move or take away, on their own authority, either openly or clandes- tinely, any thing from a vessel so detained. 270 THE ARMED NEUTRALITY OF 1780 AND 1800 These additional articles, making part of the convention signed the 5/17 June, 1801, in the names of Their Britannic and Imperial Majesties, shall have the same force and validity as if they were inserted word for word in the said convention. In witness whereof, we the undersigned, furnished with the full powers of Their said Majesties, have signed in their names the present additional articles, and have affixed the seal of our arms thereto. Done at Moscow the 8/20 October, 1801. (L. S.) St. Helens (L. S.) Le Prince de Kourakin (L. S.) Le Comte de Kotschoubey Act of Accession of His Majesty the King of Denmark and Norway to the Convention between Great Britain and Russia, October 23, ISOP In the Name of the Most Holy and Undivided Trinity : His Majesty the King of the United Kingdom of Great Britain and Ireland, and His Majesty the Emperor of all the Russias, having, in pursuance of their mutual desire to terminate, in the most equitable manner, the differences which had arisen between them, as well as between Great Britain and the other maritime Powers of the north, respecting the navigation of their respective subjects, concluded a con- vention, signed by their plenipotentiaries at St. Petersburg, the 5/17 June, of the present year; and their common solicitude extending it- self not only to prevent similar altercations in future, and the troubles which might result therefrom, by establishing and applying the prin- ciples and rights of neutrality in their respective monarchies, but alsc to render this system common and equally advantageous to the mari- time Powers of the north; it was stipulated by Article 9 of the said convention, that His Danish Majesty should be invited by His Maj- esty the Emperor of all the Russias, in the name of the high* con- tracting Parties, to accede to the said convention ; and His Majesty the King of Denmark and Norway, animated with the same senti- ^Translation. British and Foreign State Papers, vol. 1, pt. 1, p. 402. OFFICIAL DOCUMENTS 271 ments of conciliation and peace, and desirous of removing everytliing which has interrupted, or might hereafter interrupt, the good under- standing between Their Britannic and Danish Majesties, and to rees- tablish fully, on its former footing, the ancient harmony and state of things, such as they existed by His Danish Majesty's treaties and con- ventions with Great Britain, His said Majesty has not hesitated to listen to the invitation made to him to accede tO' the said convention signed at St. Petersburg, the 5/17 June last. To effect this salutary purpose, and to give to this act of accession, and to the acceptance of His Britannic Majesty, every possible authen- ticity, and every accustomed solemnity, Their said Majesties have named for their plenipotentiaries, viz. : His Majesty the King of the United Kingdom of Great Britain and Ireland, Alleyne Lord Baron '^t. Helens, a Peer of the said United Kingdom, one of His said Majesty's Most Honorable Privy Council, and his Ambassador Ex- traordinary and Plenipotentiary to His Majesty the Emperor of all the Russias; and His Majesty the King of Denmark and Norway, the Sieur Francis Xavier Joseph Count de Danneskiold Lowendal, Count of the Holy Roman Empire, Knight of the Order of St. John of Jerusalem, Major General in the service of His Danish Majesty, Commander of his Marine Forces, and his Envoy Extraordinary and Minister Plenipotentiary to His Majesty the Emperor of all the Russias ; Who, after having reciprocally exchanged their full powers, found to be in good and due form, have concluded and agreed, that all the Articles of the Convention concluded between His Majesty the King of the United Kingdom of Great Britain and Ireland, and His Maj- esty the Emperor of all the Russias, the 5/17th June of the present year, as well as the separate articles annexed thereto,^ and the ad- ditional ones concluded the 8/20th October, 1801, by the plenipoten- tiaries of Their said Majesties, in all the clauses, conditions, and ob- ligations, are to be considered as having been agreed upon, done and concluded, word for word, by Their Britannic and Danish Majesties themselves, in quality of principal contracting Parties, save and ex- cept the differences which result from the nature of the treaties and engagements antecedently subsisting between England and Denmark, of which the continuance and renewal are secured by the aforesaid ^Relating to sequestrations, armistice, etc. 272 THE ARMED NEUTRALITY OF 1780 AND 1800 convention; and with the express stipulation on the part of the high contracting and acceding Parties, that the stipulation of the 2d arti- cle of the additional articles, signed at Moscow, the 8/20th October, 1801, by the plenipotentiaries of Their Britannic and Imperial Majes- ties, which fixes that the adjudication of causes in litigation shall, in the last resort, be carried by appeal, in Russia, before the Directing Senate, and in Great Britain before His Majesty's Privy Council, is to be understood, as, with regard to Denmark, that the said adjudica- tions shall be there carried by appeal before the supreme tribunal of ' that kingdom. In order to prevent any inaccuracy, it has been agreed that the said convention, signed the 5/17th June, the separate article annexed thereto, and the additional ones concluded the 8/20th, October, 1801, should be inserted here, word for word, as follows : [Here follow the convention and additional articles.] In consequence of all which His Majesty the King of Denmark accedes, by virtue of the present act, to the said convention, and to the said, separate and additional articles, such as they are hereinbefore transcribed, without any exception or reserve, declaring and promis- ing to fulfil all the clauses, conditions, and obligations thereof, as far as regards himself; and His Majesty the King of the United King- dom of Great Britain and Ireland accepts the present accession of His Danish Majesty, and in like manner promises, on his part, to fulfil all the articles, clauses, and conditions, contained in the said convention, and the separate and additional articles hereinbefore inserted, with- out any exception or reserve. The ratifications of the present act of accession and acceptance shall be exchanged in the space of two months, or sooner if possible ; and the stipulations of the said convention shall, at the same time, be car- ried into execution as speedily as possible, regard being had to the full and entire reestablishment of the state of things, such as it was before the period of the misunderstandings, which are now so hap- pily terminated. In witness whereof, we the undersigned, by virtue of our full powers, have signed the present act, and have hereunto affixed the seal of our arms. Done at Moscow, the 11/23 October, 1801. (L. S.) St. Helens (L. S.) F. X. J. COMTE DE D\NNESKIOLD LoWENDAL OFFICIAL DOCUMENTS 273 Ordinance of the King of Denmark regulating the Conduct and de- fining the Obligations of the Merchants and Mariners of His States in Time of War between Other Maritime Powers, May 4, 1803^ We, Christian VII, by the grace of God King of Denmark and Norway, etc., to all whom it may concern. Although the rules, by which merchants and seamen who are our subjects must be governed in time of war between other maritime Powers, have been laid down in a number of our previous ordinances, we nevertheless deem it necessary, in present circumstances, to set forth in a single ordinance the contents of these regulations, modified in several respects and in the form in which they must henceforth serve a? the rule, in order that the greatest possible publicity may be given by these presents to the invariable principles, according to which we intend to maintain at all times the rights of the merchants and sea- men of our States, and that no one may allege ignorance of the duties which he must fulfil, as a Danish subject, in a similar case. There- fore, it is our royal will that the following regulations be scrupulously observed, as the only rule of conduct, by all those who may wish to . participate in the advantages which the neutrality of our flag in time of war assures to the legitimate commerce and navigation of our sub- jects. For these reasons, revoking by these presents our former ordi- nances with regard to the conduct of our subjects during a foreign naval war, we order and publish the following: Article 1 Any merchant or navigator of our States who may wish to send a vessel belonging to him to any foreign port or place, to which the efifects of a war that has broken out between other maritime Powers mav extend, shall be required to secure a royal passport in Latin and such other papers and documents as are necessary for the legitimate saiUng of a ship. To this end, our subjects are notified at the begin- ning of such a war, for what foreign ports or places it has been deemed necessary that they be provided with our royal passport in Latin. iTranslation. French text at Martens, Recueil de Traitis, vol. 8, p. 93. 274 THE ARMED NEUTRALITY OF 1780 AND 1800 AETia.E 2 Such passport may not be delivered to the owner of the vessel until he shall have obtained a certificate vouching for his ownership. Article 3 To obtain the certificate required by the foregoing article, he must be our subject, born in our States, or he must have acquired, before the outbreak of hostilities between any maritime Powers of Europe, complete enjoyment of all the rights of a domiciled subject, either of our countries or of some other neutral State. The owner of the vessel, for which the certificate is requested, must, in any event, reside in some part of our kingdoms or of the countries belonging to us. Article 4 To procure the above-mentioned certificate, it is necessary to ap- pear before the magistrate of the city or maritime locality from which the ship sails, or else the place of residence of the majority of the owners : all of the latter shall be required personally tO' certify, either by oral oath, or by formal oath in writing signed by their own hands, or else the principal o^wner, in the name of all, that the vessel really belongs to them, all being our subjects, and that it has not on board any contraband of war for the account of the belligerent Powers or any of their subjects. A.P.TICLE 5 During the course O'f a foreign naval war, no one, who was bom a subject O'f any of the Powers engaged therein, may be the captain of a merchant ship sailing under our royal passport, unless he proves that he acquired citizenship in our kingdoms or countries before the out- break of hostilities. Article 6 Every merchant captain, who wishes to be admitted to the com- mand of a vessel provided with our royal passport, must have ac- quired citizenship in some part of our States. His citizenship papers must always be on board his vessel before its departure from the port where the passport is issued ; he shall be required to make oath, in the OFFICIAL DOCUMENTS 275 prescribed form, that no act shall, with his knowledge or consent, be committed or attempted, with regard to the said vessel, which might involve abuse of the passports and certificates issued to him. The oath shall be sent to the competent department with the application for the passport. But in case this can not be done because of the absence of the captain, the owner of the vessel shall be required to give notice thereof to the said department, and our consul or commercial agent in the district where the captain happens to be shall see to it, on his responsibility, that he makes the prescribed oath. Article 7 There must not be on board vessels provided with the above-pre- scribed passport any supercargo, clerk, or other ship's officer who is the subject O'f a Power at war. Article 8 Half of the crews of the vessels above specified, including the boat- swains and boatswains' mates, shall consist of natives of this country. If the crew of a vessel should become depleted in a foreign country through desertion, death, or sickness, and if the 'captain should find it impvossible to comply with the aforesaid rule, he shall be allowed to * engage as many foreign subjects, preferably subjects of neutral coun- tries, as he may need to continue his voyage; provided, nevertheless, that the subjects of a Power at war, on board his ship, shall in no case constitute more than one third of the entire crew. Whenever a change is made in his crew, the captain must make entry thereof, with a statement of the causes which rendered it necessary, in the vessel's muster roll, which muster roll shall be duly attested, by the consul or commercial agent, or his deputy, in the fi.rst port touched by the ves- sel, in order that this attestation may serve as the captain's authority wherever there may be need. Article 9 The papers and documents specified below must always be on board vessels provided with our royal passport, to wit : the certificafe pre- scribed by Article 2. Its construction papers, and if the vessel was not built for the pres- ent proprietor, the contract of sale or the purchase documents shall 276 THE ARMED NEUTRALITY OF 1780 AND 1800 be attached ther^^to. The former of these two instruments and the latter, if there be occasion, shall accompany the application of the owner for a passport. The royal passport in Latin, with the translations thereto apper- taining. Its measurement certificate. The muster roll of the crew, duly verified by the competent officers. The charter-parties and bills of lading covering the cargo, and finally, the attestation of the custom house of the locality where the cargo has been loaded. Article 10 The measurement certificate shall be issued by the officers appointed for this purpose in the maritime localities of our kingdoms and coun- tries. In case one of our subjects shall have bought a vessel in some foreign port, our consul or commercial agent on the spot, shall be authorized to attend to the measurement and to issue to the captain a provisional measurement certificate, which shall be considered valid until the vessel reaches some port of our States, where it shall be measured and marked in due form, whereupon a measurement certifi- cate in the regular form shall be issued, which thereafter shall form a part of the sailing papers of the vessel. Article U A ship-owner is forbidden to secure and a captain to have on board false sailing papers ; the ship shall not fly a foreign flag while on a voyage under papers and instruments issued by us. Article 12 Our royal passport is valid for only one voyage ; that is to say, from the time that the vessel, after having secured it, sails from the port where it was issued until its return to the same port, it being under- stood that in the meantime it shall not have changed hands, in which case the new owner shall be required to procure, in his own name, the necessary papers and documents. ' Article 13 Since according to the generally established principles the subjects of a neutral Power can not be permitted to transport in their vessels OFFICIAL DOCUMENTS 277 goods that would be considered contraband of war, if they were des- tined for the ports of a belHgerent Power or if they belonged to its subjects, we have deemed it advisable to define expressly what shall be included under the head of contraband of war, in order to prevent the abuse of our flag in covering the transportation of prohibited articles and so that no one may allege ignorance on this score. Therefore, we declare that the articles and merchandise hereinafter specified shall be considered contraband of war: cannons, mortars, arms of all kinds, pistols, bombs, grenades, bullets, balls, guns, gun-flints, fuses, powder, saltpeter, sulphur, breastplates, pikes, swords, sword-belts, cartridge- boxes, saddles and bridles, with the exception, however, of such quan- tity as may be necessary for the defense of the vessel and of those composing its crew. Moreover, the positive agreements contracted with foreign Powers respecting merchandise and property, the transportation of which in time of war is prohibited by the said agreements, shall remain in force, and to this end special regulations shall be drawn up, to be delivered to every ship owner when he receives our royal passport. Article 14 In case a vessel bound for a neutral port should ship as cargo goods that would be contraband of war, if they were destined for a port belonging to some belligerent Power, it shall not be sufflcient for the owner and the captain to make oath as prescribed above, but the owner and the captain shall be further required to make conjointly a declara- tion different from the general customs declaration, in which shall be specified the kind, the quantity, and the price of these goods. This declaration shall be verified by the customs officers at the place from which the vessel sails; after which the customs officer having jurisdic- tion shall forward it immediately to the general custom house, to be used in checking and verifying the arrival of the goods therein speci- fied at their place of destination therein set forth, unless their arrival should be prevented by capture or forcible detention, whereof satisfac- tory proof must be furnished. This checking up shall be effected in the following manner: The shipper of such goods must furnish a certificate in writing from our consul or commercial agent, or of their deputy, at the place for which the vessel is bound, or in their default, from the competent 278 THE ARMED NEUTRALITY OF 1780 AND 1800 magistrate or some other person publicly authorized and qualified .for' this purpose ; which certificate shall state the arrival of the vessel and the discharge of its cargo in conformity with the aforesaid declaration, and shall be the legal evidence thereof. This certificate shall be sent to our General Bureau of Fxonomics and Commerce as soon as the vessel shall have reached the port for which it was bound, or else after its return to one of the ports of our kingdoms. In case this certifi- cate is not transm.itted within a period proportionate to the length of the voyage, our General Bureau of Economics and Commerce shall require the owner of the vessel to make a declaration, such as he shall be willing to swear to, to the effect that he has received no news of the vessel or of the goods. If the arrival oi the vessel and the discharge of the goods above specified in a neutral port can not be proved, and if a capture at sea or some other unfortunate event is not the cause thereof, the owner shall pay into the treasury of our General Bureau of Economics and Commerce a fine of twenty rigsdalers for every last of goods carried by the vessel ; and both the owner and the captain shall, in addition, be liable to prosecution under the fiscal laws. Article 15 All captains of vessels are forbidden to sail for a port blockaded by sea by one of the Powers at war; they must conform strictly to the instructions given them by the competent magistrates with regard to the blockade of such a port. In case a captain, desiring tO' enter a port of the blockade of which he is unaware, encounters a ship of the line flying the flag of one of the Powers at war, whose commander notifies him that this port is actually blockaded, he shall be required to withdraw forthwith and shall not attempt in any way to- enter it as long as the blockade is not raised. Article 16 None of our subjects shall be permitted to enter the service of any corsair or privateer of a country at war, nor himself to- arm vessels for such a purpose, nor to have a share or interest in such vessels. No ship-owner or captain shall permit the use of his ship for the transportation of troops of munitions of war of any kind whatsoever. In case a captain is unable to prevent, because O'f the superiority of the force used against him, the use of his vessel for such a purpose, he OFFICIAL DOCUMENTS 279 shall be required to make formal protest in a properly attested instru- ment against the act of violence which it was not in his power to ■escape. Article 17 When a vessel that is not under military convoy shall be hailed at ■sea by an armed ship belonging to one of the belligerent Powers, which is authorized to inspect the sailing papers on board merchant ships, the captain shall offer no resistance to such examination, if the captain of the armed ship states it to be his intention to make it; but he shall be required to show in good faith and without concealment all the papers and documents pertaining to his vessel and to its cargo. The captain of the vessel, as well as its officers and crew, is like- wise forbidden, under severe penalties, to throw overboard, to- destroy, or to hold back any of the docviments forming part of the papers re- lating to the vessel and its cargo, either before the visit or while it is in progress. In case we shall have granted anned protection to the commerce under our flag, then merchant captains, who may desire to be received under convoy, shall be required first to show their sailing papers to the commander of the convoj' and to be governed by his orders in every particular. Article 18 Any owner or captain who shall contravene, wholly or partially, the articles and rules of this ordinance, shall forfeit his citizenship and his right to engage in maritime commerce, and shall, furthermore, be liable to prosecution under the fiscal laws, and shall be punished, ac- cording to the seriousness of the offense, either as a perjurer or as a violator of royal ordinances. On the other hand, it is our intention to protect and to maintain the .rights of all our dear and faithful sub- jects who shall strictly conform to the above-mentioned rules in their legitimate com.merce and navigation. Therefore, we have ordered all our Ministers, consuls, and other agents in foreign countries, to be most active in their eflforts to prevent our said subjects from being vexed or molested, and, if they should be, to help them to obtain jus- tice and redress of their grievances. We promise, furthermore, to support all well-founded claims which they may have occasion humbly to lay before us. Given at Copenhagen, May 4, 180^. Under our hand and seal. Christian R. 280 THE ARMED NEUTRALITY OF 1780 AND 1800 Declaration of Neutrality of the Republic of the Seven Islands, June, 1803^ The Republic of the Seven Islands, having no concern whatever in the matters in dispute between the two Powers, whose good-will and friendship it appreciates, is pleased to see in its midst the public agents of both and shall not cease to show them proper deference and re- gard. It deems it to be its duty to declare hereby to all Europe, to all the Powers its friends, and particularly to France and England, that it will observe the strictest neutrality, in conformity with the principles of the law of nations, convinced, as it is, that the last two States will observe the same impartiality with respect to it and will not permit the slightest violation of its neutrality, either in the matter of its political and territorial rights, or in the mater of its commercial relations and .the property of its subjects. The Government of these Islands therefore orders its inhabitants to have every regard and sen- timents of affection and mutual consideration for all the war and mer- chant ships and all individuals of the two belligerent nations. It en- joins especially, holding them to the strictest accountabliity, all the civil and military employees of this Republic not to permit in any way that any injury, on any pretext whatever, be done to any individual who is a subject of either of the two belligerent Powers ; for the Government of the Seven Islands desires to remain constantly on the best of terms with them, and to maintain with them relations of friend- ship and commerce. Decree of the Prince Regent of Portugal concerning the Observance of Neutrality in His States, June 3, 1803^ As it is always the object of my paternal wishes and of my royal sentiments to maintain intact the peaceful relations which happily exist between me and the Powers, my aUies and friends; as to this end, in the present circumstances of Europe, it is advisable to define the principles which must serve as the basis of a system of absolute ^Translation. French text at Martens, Recueil de Traites, vol. 8, p. 102. ^Translation. French text at Martens, Recueil de Traites, vol. 8, p. 101. OFFICIAL DOCUMENTS 2S1. neutrality, which it is my intention shall be religiously oibserved, if war should break out — which Heaven f orfend ! — among the Powers, my allies and friends ; and considering how greatly it is to the in- terest of the welfare of mankind and to the tranquillity of my States and vassals to prevent the most trivial differences, which might result from ignorance of the ordinances issued to carry out the purpose which I have in mind: I therefore declare ''that the privateers of the belligerent Powers shall not be admitted to the ports of my States and dominions nor shall the prizes which may be taken, either by them or by vessels of the line, frigates or other war-ships, except only in cases where the law of nations declares hospitality' to be absokitely necessary, and then only on condition that it be not permitted to sell the said prizes or their cargoes discharged in these ports, when there are prizes in such cases ; nor may the vessels remain longer than is necessary to avoid danger or to receive the innocent assistance of which they may have need." Likewise the decree of August 30, 1780, in which the same thing is ordered, is renewed and is to be in full force. The war council shall see to the execution of all these ordinances and shall issue the necessary orders to the governors and commanders of provinces, of fortresses, and of maritime localities. QuELus Palace, June ?, iSo'j. Proclamation of the Prince and President of the Senate of the Re- public of the Seven Islands, containing Regulations governing the Conduct of His Subjects with regard to the Maintenance of Neutrality, July 9, 1803^ On the first news of the renewal of the war between the two high Powers, England and France, the Government of the Seven United Islands hastened to manifest its sentiments of loyal friendship, devo- tion, and impartiality toward these Powers, by proclaiming to all Europe its absolute neutrality in the differences between the said bel- ligerent Powers. ^Translations. French text at Martens, Recueil de Traites, vol. 8, p. 103. 282 THE ARMED NEUTRALITY OF 1780 AND 1800 The Senate, now wishing to confirm still further the sincerity of the intentions of the Republic and the care it has taken to see that its subjects religiously observe this neutrality, has adopted the follow- ing provisions and orders the most exact and absolute execution thereof : Article 1 It is expressly forbidden all subjects of the Republic to take the slightest part, direct or indirect, in the present war, either as sailors or soldiers, or in any other capacity, on the war-ships or privateers of either of the belligerent Powers, which may touch at the ports of the State or at any other place or foreign port. Article 2 It is likewise forbidden captains and officers of our vessels to enter,, on any pretext whatever, the service of either of the belligerent Powers, whether for transportation or for any other purpose; as well as to load their vessels with munitions of war or other contraband goods, to transport them to other vessels or to places or localities be- longing to the said Powers, or to cities or ports which are under siege. Article 3 Any person who shall act contrary to the provisions of the two fore- going articles shall incur capital punishment, and his property, both real and personal, present and future, shall be confiscated, and the proceeds thereof shall be turned intO' the public treasury. Article 4 The present proclamation shall be printed in the two languages and published, with all due formalities, in all the cities, burghs, and vil- lages of our Islands. Moreover, a printed copy shall be delivered by the respective governments to all the parish churches, with formal orders that they be read on the most solemn feast davs, after divine service, and that they be public posted in the parish. Article 5 In order that the present provisions may be absolutely carried out .several printed copies shall be transmitted to all the Ministers and OFFICIAL DOCUMENTS 283 consuls of the Republic, with orders, under penalty of dismissal, to read them to the captains and crews of our national vessels, which may touch at the ports under their jurisdiction, and to prevent by their vigilance and authority any contravention of the rules laid down in A.rticle 2. Article 6 In case of any contravention, the said Ministers and consuls shall be required to arrest immediately the culprits and their vessels, and to send them under strong gttard that they may be placed at the disposi- tion of the Senate. Given at the Senate House of CorfUj July g, tRo^. f Signed) Spirtdion George Tetochi, Prince and President. Ordinance of Austria on the Observance of Neutrality, August 7, 1803^ We, Francis II, etc., etc. Whereas we are determined to observe the strictest neutrality in the war which has broken out between France and England, and threfore that the relations of peace and friendship hitherto existing between us and each of the belligerent Powers may continue- without interruption, it is necessary, in order to avoid any cause for complaint, that on the one hand this neutrality be observed by all our subjects, in particular by those engaged in navigation and maritime commerce, so far as it depends upon them, and that, on the other hand, the rights of our neutral coasts and localities be main- tained, and also that commerce with each of the belligerent Powers, provided that it be carried on in accordance with the rules of neutral- ity, be duly ensured. For these reasons and to this end, as well as to prevent any misunderstanding or difficulty, which might result from ignorance or neglect of the said duties and rights, we publish by these presents the following provisions, which are founded in part on the rules laid down in existing treaties between the European Powers, iTranslation. French text at Martens, Recueil de Traites, vol. 8, p. lOS. 284 THE ARMED NEUTRALITY OF 1780 AND 1800 and in part are in conformity with the practices followed among them b)' virtue of the law of nations, by which provisicns our civil and military officers and all our subjects shall be guided during the present naval war. Article 1 By these presents we forbid all our subjects and all the inhabitants of our country to enlist for duty on land or sea in the service of either of the belligerent Powers, in any rank whatever, or voluntarily to enter the military service of these Powers, under the penalties pro- vided by the laws of our hereditary countries against illegal emigration. Akticle 2 Our subjects shall also abstain, in all other respects, from taking part personally in the war or in the military armaments. In particular, they shall refrain from the arming of privateers for the belligerent Powers, and shall have no interest of any kind in such enterprises, when they are carried on outside of our territory. Article 3 V\^e likewise forbid all our subjects and all the inhabitants of our countries to construct, equip, or sell, in the ports, roadsteads, or on the coasts subject to our dominion, any war-ships or merchant ships, for use by the belligerent Powers, under penalty of a fine of 3,000 ducats for every violation of this prohibition. Half of this fine shall be paid to the informer and half to the treasury, and, in case the culprit is insolvent, shall be replaced by proportionate corporal punishment or imprisonment. Article 4 Furthermore, Austrian navigators, because of the neutrality adopted, are forbidden to transport either marines or sailors, under the guise of passengers or otherwise, for service under any of the belligerent Powers, in particular also to lend their names to vessels or property of the nations at war, or, finally, to convey any cargoes or merchan- dise to localities or ports besieged or blockaded by either of the bel- ligerent Powers, in which case they could not enjoy the freedom of neutral flags according to the established practice of nations, nor could they expect from us any protection or intercession. OFFICIAL DOCUMENTS 2S5 Article 5 Austrian ships may not have on board naval officers of the belHger- ent Powers, or sailors belonging to those Powers, exceeding a third of the crew, since the vessel would otherwise not be considered neutral. Article 6 In the just expectation that neutral Austrian commerce shall be duly respected by the belligerent Powers and that the rights which custom confers upon them shall be exercised by them with the ordinary modifications, required by the law of nations or by treaties, we order that Austrian navigators shall not resist visit on the high seas on the part of foreign war-ships, but that they shall show without throwing any difficulties in the way the papers and documents proving the neutrality of the vessel and its cargo, and shall not throw any of these instruments overboard or destroy them in any way ; still less shall they be permitted to have false, misleading, or secret papers on board. Article 7 With regard to neutral commerce and articles which are to be con- sidered contraband during war, we, for our part, assume the same obligations as those contracted by the other neutral Powers, to wit, ■ Russia, Sweden, and Denmark, in their last convention with England, of June 17, 1801. In return, we shall expect the belligerent Powers to observe toward us and the commerce of our subjects the same consideration and to respect the same rights, which these Powers and the other neutral States must enjoy for the same reason. Consequently, we forbid all our subjects, who are navigators and merchants, to transport, for the Powers now at war, any of the goods or munitions of war hereinafter designated, to wit: cannons, mortars, arquebuses, pistols, bombs, grenades, bullets, guns, gun-flints, fuses, powder, salt- peter, sulphur, pikes^ swords, sword-belts, cartridge-boxes, saddles and bridles. All these articles being generally regarded as contraband, only such quantities of them may be carried on neutral vessels as are neces- sary for their use and defense. Any of our subjects who, in spite^ of our prohibition, shall engage in this forbidden commerce, shall incur the penalty of their disobedience, and shall, moreover, be exposed to all the injuries that they may sufifer through the capture and confisca- tion of their vessels by the belligerent Powers. 286 'THE ARMED NEUTRALITY OF 1780 AND 1800 Article 8 With the exception of the articles designated in the preceding article, trade in merchandise, products, and wares shall be carried on without restriction with the belligerent Powers, provided the exportation of such goods from the hereditary countries is not prohibited, in general, by existing laws and regulations, or by laws or regulations that may hereafter be published. Nevertheless, all purchasing, storing, and transporting of articles of equipment and provisions for the fleets and armies at war, is forbidden. The vessels which shall enter the ports may only load such quantity as is necessary for their own use. For the rest, our subjects engaged in sea-going trade shall act with pru- dence, paying attention to everything that may be published oh this subject by the belligerent Powers, and considering the unpleasant consequences that might result with regard to their commerce. Article 9 As it is self-evident that, in order to avoid all difficulties on the high seas, neutral navigators must prove the neutrality of their vessel and its cargo, any of our subjects who may wish to put to sea from one of our ports and transport his cargo to distant ports, coasts, or countries, whether neutral or at war, must obtain from the nearest authority, or from the magistrate of the place, the necessary maritime passports, as well as customs certificates, charts, bills of lading, and the other customary documents, on which shall appear the name of the owner, the character and quantity of the cargo, the place of destina- tion, and the consignee. We shall immediately publish special regula- tions on the form, the manner in which these passports shall be drawn np, and the precautionary measures necessary to prevent abuse thereof. Article 10 Since Austrian vessels may, in spite of the present war, continue unrestrained their commerce and their business in the ports of the belligerent Powers, the war and merchant ships of these Powers may likewise freely enter, as before, all Austrian ports, remain there as long as they see fit, make repairs, etc., if they conform strictly to the rules and principles of neutrality. However, in order to observe on this point perfect equality with regard to war-ships and, so far as possible, to avoid all difficulties, we decree that, so long as the present OFFICIAL DOCUMENTS 2g7 war lasts, no more than six war-ships of each of the belligerent Powers may enter our ports at one time. Article 11 Since all vessels without exception must enjoy the protection which neutrality ensures, and absolute security in all the ports, roadsteads, and coasts subject to our dominion, it shall not be permissible for one or more vessels of the Powers at war to engage in hostilities in the said ports, nor within cannon-shot of the coasts, and consequently there shall be no fighting, pursuit, attack, visit, or seizure of ships in the said waters. Our authorities and particularly the military com- manders in our seaports shall especially watch over these matters. Article 12 By virtue of the rights proceeding from the said neutrality, it shall not be permissible for the vessels of the belligerent Powers to cruise oft" our ports within the distance mentioned in the foregoing article, lying in wait for ships entering or leaving; still less may they remain in the said ports for the purpose of sailing out to meet incoming vessels or of pursuing those that wish to put to sea. Article 13 When privateers or armed merchant ships of the two belligerent Powers chance to be at the same time in one of our ports and one of them wishes to put to sea, the other may not leave within twenty-four hours, it being understood that the vessel which anchored in the port first has the right to put to sea before or after the other. War-ships or entire squadrons shall not, however, be subject to this twenty-four hour rule, provided their commanders give their word of honor to the governor or chief officer of the port that they will not pursue or molest during this period of time any vessel of the enemy. The word of honor shall be given once for all by commanders of fleets and squad- rons; the captains of single vessels must renew their promise every time they wish to put to sea. As for captains of armed merchant ships or privateers, they may not leave the port within twenty-four hours, unless they give sufficient security for the fulfilment of their promise. 28S THE ARMJiD NEUTRALITY OF 1780 AND 1800 Article 14 Vessels of the belligerent Powers shall not be permitted to leave the port, when the arrival of a foreign vessel has been reported, unless, as provided in the preceding article, the commander of war-ships has given his word, or the merchants or privateers have furnished sufficient security, to abstain from any act of hostility against the said vessels. Article 15 Small vessels, like tartans, trabacolos, feluccas, rowboats, etc., are excepted from this provision. Their crews and armaments being too insignificant to be able to commit any act of hostility, they may conse- quently leave the port whenever they see fit. Article 16 The enlistment of sailors for service under the belligerent Powers is forbidden in our ports ; and in case vessels belonging to these Powers shall have need of men to complete their crews, they shall be permitted to procure them, on condition, however, that they shall not engage any of our subjects or inhabitants of the country and that they shall not take by force the crew of any other vessel of the same belligerent Power, but that their crew shall be completed with individuals who shall enlist voluntarily. Article 17 Prizes which the vessels of one of the belligerent Powers shall have taken from the other may be brought into all our ports, where there is a commander or governor, and specifically into the ports of Venice, Trieste, Fiume, Zeng, and Zara. Effects may be unloaded, stored, and guarded, provided they are not articles the importation of which into our countries is prohibited. They may be bought, sold, and again exported for sale elsewhere, on condition nevertheless that the compe- tent courts of the Power making the prize shall have passed upon its legality. If, during this interval, certain effects might run the risk of being spoilt, they may be sold, on condition nevertheless that suffi- cient security be given to cover their value, in case the courts decide that the prize must be released. OFFICIAL DOCUMENTS 289 Article 18 In case claims are made, which give grounds for the presumption that the prize was taken illegally and in contravention of the provisions of Articles 10, 11, 12, and 13 of this ordinance, our governors and presidents of regency, after having faken the necessary testimony, shall pass upon the case summarily and without appeal; and if it should actually happen that a vessel brought into one of our ports had been taken in violation of the laws of neutrality, such a prize shall be declared illegal by our officers and shall be restored to its owner. Article 19 The belligerent Powers shall not be permitted to put ashore in our ports, roadsteads, or on our coasts any individual as a prisoner of war, for immediately on setting foot on the territory of a neutral sovereign, or one that is friendly to their Government, such prisoners must be regarded as free, and all the military and civil authorities must give them, as such, protection and assistance. Article 20 In consequence of all these obligations which we have contracted and the measures taken for the protection of the vessels of belligerent Powers in our ports, we do not doubt that these Powers will respect with regard to us the rights that belong to a neutral State and which all the other nations enjoy. We expect them above all to give to the commanders of their fleets and to the captains of armed vessels and privateers orders not to molest on the high seas Austrian ships laden with non-prohibited goods, but to allow them to continue their course freely, if their papers and passports are in order, even though they may be bound for an enemy port. And, finally, that they shall render prompt and impartial justice to our navigators, who may have griev- ances against the commanders of their war-ships or privateers. Article 21 The present regulations shall be published in the German and Italian languages in all our hereditary countries, and particularly in all pur ports and countries near the coast, so that all our subjects who are navigators and merchants may conform hereto. Our civil and military 290 THE ARMED NEUTRALITY OF 1780 AND 1800 authorities must also be guided by the provisions hereof in cases which may arise, and must see that they are scrupulously executed. Given August /, 1803. New Regulations of Sweden regarding the Commerce and Naviga- tion with Foreign Maritime Powers in Time of War, January 21, 1804^ We Gustavus Adolphus, by the grace of God King of Sweden, of the Goths and of the Vandals, etc., heir to Denmark and Norway, Duke of Schleswig-Holstein, etc., proclaim that, desiring to ensure to Swedish navigation, during the disturbances of the present war, all the Security which the maintenance of the commercial relations of Sweden with other nations demands, and having recognized the neces- sity of the strictest observance, on the part of our faithful subjects who are merchants, of the obligations and precautions, which, by virtue of the formal treaties and conventions existing between us and other Powers, are required to ensure to the Swedish flag all the rights and prerogatives which it should enjoy as a neutral; and to avoid, on the other hand, everything that may in any way render it suspect to the Powers at war, and therefore expose it to insults, we have seen fit to have our regulations of December 23, 1800, revised, and to determine and prescribe with greater precision what rules must, in time of war between maritime Powers, necessarily be observed by Swedish navi- gators, if they desire to be respected in their voyages and to be con- sidered, together with their ships and effects, as belonging to a neutra' Power. With this view, we desire, by the present new ordinance on the same subject, to lay down and prescribe the following general rules : Section 1 No vessel shall be recognized as Swedish, unless it has been built in Sweden or in some country under its rule, except in the case of a foreign vessel which, having been wrecked on the coast of Sweden, ^Translation. French text at Martens, Recueil de Traites, vol. 8, p. 112. OFFICIAL DOCUMENTS 291 has been bought, repaired, and equipped by Swedish subjects, or unless it shall have been formally naturalized, as purchased by a Swede in a foreign country. However, as to vessels which our subjects may have bought in the countries of the belligerent Powers and from their subjects, such vessels shall not be granted naturalization while the war lasts ; but all such vessels as shall have obtained naturalization before the rupture shall be considered Swedish and neutral, from whatever place they may have come or to whomsoever they may have previously belonged. Section 2 The documents which a merchant captain must have on board during a voyage, in order to prove that his vessel is Swedish, are, when he is to sail beyond the Baltic Sea and pass through the Sound, a con- struction certificate, a measurement certificate, a so-called Tiirkisli passport issued by the Board of Commerce and a Latin translation thereof ; an exemption certificate ; a cargo certificate issued by the magistrate of the place; a passport for the crew; a copy of the oath of the owners ; the charter party signed by the owner, the captain, and the shipper ; a declaration of the cargo and of the freight likewise signed by the aforesaid persons ; and, finally, a health certificate, when circumstances require it. When the vessel is not to sail beyond the Baltic, it shall not require this so-called Turkish passport with its Latin translation ; but all the documents above specified must necessarily be carried on board when the vessel sails for a foreign land. Section 3 The captain shall procure all the said documents in a Swedish port or a port belonging to Sweden ; and they may not be issued to a vessel which is not in such a port, unless the vessel has, by chance or through an act of violence, lost its papers, in which case duplicates may be issued, provided the captain immediately on his arrival in port make a formal statement of such mishap, to which he shall make oath, if required. Sfxtion 4 Captains are strictly forbidden to have misleading or false papers and bills of lading, or to fly a foreign flag on any occasion and on any pretext whatever. 292 THE ARMED NEUTRALITY OF 1780 AND 1800 Section 5 The captain and half the crew must be Swedish subjects, in order that the vessel and goods may be regarded as Swedish or neutral. But if it should happen during the stay of the vessel in a foreign country that the crew, through desertion, death, or sickness, should become so diminished that those left, that is to say, those remaining in good health, were not sufficient to man the ship, the captain shall be allowed to engage, with the knowledge of the Swedish commercial agent, as many foreign sailors, preferably subjects of neutral States, in excess of the prescribed number as he may need to continue his voyage. However, the number of subjects of the belligerent Powers on board the vessel shall never exceed one-third of the crew, the captain being required to enter every change of this kind and the causes thereof, on the muster-roll of the crew, and the genuineness of this entry must be attested by the Swedish commercial agent, or in case there is no such agent, by the magistrate, the notary public, or other person of like authority according to the practice of the country. Section 6 Swedish vessels, as neutrals, may freely sail to the ports and along the coasts of the nations at war; and all goods on board neutral vessels shall be free, with the exception of contraband of war and enemy property. Therefore, all our subjects in general are forbidden, under the strictest accountability and inevitable penalties for violators, to engage in contraband trade with the subjects of any of the belligerent Powers ; and it is likewise forbidden, under similar accountability and penalties, the commanders of our warships and the captains of Swedish merchant ships bound for a port belonging to or subject to either of the nations at war, to load, to have, or to conceal on board any contraband of war ; and in order to avoid any ambiguity or misunderstanding as to what is properly to be considered contraband of this nature, we declare that nothing but the following goods shall be included under this head : cannons, mortars, firearms, pistols, bombs, grenades, bullets of all kmds, guns, gun-flints, fuses, powder, saltpeter, sulphur, breastplates, pikes, swords, sword-belts, cartridge-boxes, saddles and bridles, except such quantities of all these articles as may be necessary for the defense of the vessel and of its crew. All other articles whatsoever, not here specified, shall not be considered munitions of war or naval munitions, OFFICIAL DOCUMENTS 293 nor shall they be subject to confiscation; and consequently, in so far as they can not be considered enemy property, they shall pass freely, and the vessel shall not be exposed to the slightest annoyance. Further- more, articles of commerce, whether finished products or not, emanat- ing from countries belonging to the belligerent Powers shall not be considered enemy property when they have been purchased by Swedish subjects and are carried for their account, which good's are not to be excepted from the exemption recognized to the Swedish flag as a neutral ; but in the particular case of England in this war, our sub- jects who are engaged in navigation are required to conform to the provisions of the convention which was drawn up between us and the King of Great Britain and Ireland, under date of July 25, 1803, and ratified on August 25 and September 23 of the ,same year, for the purpose of elucidating Article 11 of the treaty of commerce concluded in 1661 between Sweden and England. Section 7 It is forbidden any Swedish subject to arm vessels to be used for privateering against either of the belligerent Powers, their subjects, or their property. It is likewise forbidden any Swedish subject to enter the service of foreign privateers. Section 8 It is furthermore forbidden any Swedish captain to allow himself, or the vessel he commands, to be employed to transport, for either of the belligerent Parties, troops or munitions of war as above specified, unless he is constrained to do so by force and formally protests against it. Section 9 When a captain, who sails unescorted, is encountered on the high seas by any war-ship or privateer of either of the nations at war who may wish to visit his vessel, he must not refuse, nor must he attempt to escape such visit; but he is required to produce his papers frankly and without dissimilation, it being in such a case strictly forbidden the captain and the crew to abstract any documents relating to the vessel and its cargo, still more to throw any of their papers overboard when the vessel is being hailed or visited. 294 THE ARMED NEUTRALITY OF 1780 AND 1800 Section 10 The right to visit Swedish merchant ships under convoy may be exercised only by the war-ships of the belHgerent Powers, and does not extend to privateers, which do not belong to the fleets of the said Powers but have, been armed by their subjects ; merchant captains being required above all to be very careful to follow the orders and signals of the commander of the convoy, and to deviate therefrom as little as possible. It is, moreover, necessary that the owners of merchant ships intending to sail under convoy show their passports, certificates or sailing papers to the commander of the escorting ship, in order to receive the instructions that are to be given them as to their course. • Section 11 No merchant ship shall attempt to enter a blockaded port, after it has been formally notified of the state of such port by the officer commanding the blockading fleet; and to determine what constitutes a blockaded port, none shall be considered such except a port which has been so closed by a certain number of enemy war-ships stationed sufficiently near to render access thereto clearly dangerous. Section 12 A captain who scrupulously observes all the rules above prescribed, shall, according to treaties and the law of nations, enjoy free and unrestricted navigation ; and if, notwithstanding, he is molested or suffers injury, he has a right to expect the most energetic support on the part of our Ministers and commercial agents residing in foreign countries in all just claims which he shall make to secure reparation and indemnification. On the other hand, a captain who neglects and fails to observe the orders given him as to his course has only himself to blame for the mishaps which may result from such neglect, and must not look for our high support and gracious protection. Section 13 In case a Swedish vessel should be seized, its captain must deliver to the commercial agent or vice-agent of Sweden, if there is one in the port where the vessel is brought, but in case there is not, to the nearest Swedish agent or vice-agent, a faithful report, duly certified, of the circumstances of' the seizure in full detail. OFFICIAL DOCUMENTS 295 Section 14 In conformity with our previous orders, no foreign privateer shall be permitted to enter a Swedish port, or to send its prizes thereto, except in case of evident distress. Our subjects are likewise forbidden to purchase foreign privateers, which may have been admitted to a Swedish port for the above mentioned reason, prizes or captured goods of any kind whatever. The present regulations shall be published wherever it is deemed necessary, in order that no one may allege ignorance thereof. We command and order all those whom it ipay concern to conform strictly hereto. In faith whereof we have signed these presents with our own hand and have hereto affixed our royal seal. (liven at Munich, January 21, 1804. [L. S.] GUSTAVUS ADOLPHUS Gust. Lagerbtelke PUBLICATIONS OF THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE Secretary's Office tYear Book for 1911; Year Book for 1912; Year Book for 1913-1914; Year Book for 1915 ; tYear Book for 1916. Division of Intercourse and Education No. 1 Some Roads Towards Peace: A report on observations made IN China and Japan in 1912. By Dr. Charles W. Euot. vi— 88 p. fNo. 2 German International Progress in 1913. By Professor Dr. WiLHELM Paszkowski. iii — 11 p, No. 3 Educational Exchange with Japan. By Dr. Hamilton W. Mabie. 8 p. tNo. 4 Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, ix — 418 p., . illus., maps. tNo. 5 Intellectual and Cultural Relations Between the United States and the Other Republics of America. By Dr. Harry Erwin Bard, iv — 35 p. 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Reprinted from the original edition of 1840, with an introduction by James Brown Scott. 1 — 162 p. Price, $2.00. *The Hague Court Reports, comprising the awards, accompanied by syllabi, the agreements for arbitration, and other documents in each case submitted to the Permanent Court of Arbitra- tion and to commissions of inquiry under the provisions of the Conventions of 1899 and 1907 for the pacific settlement of international disputes. Edited by James Brown Scott, Di- rector. 800 p. Price, $3.50. ♦Resolutions of the Institute of International Law Dealing with the Law of Nations, with an historical introduction and ex- planatory notes. Collected and translated under the super- vision of and edited by James Brown Scott, Director, xli — 261 p. Price, $2.00. ♦Diplomatic Documents Relating to the European War. Edited by James Brown Scott. 2 vols. Price, $7.50. Classics of International Law This series will include the leading works on International Law, the republica- tion of which has been undertaken principally on account of the difficulty of pro- curing the texts in convenient form for scientific study. The text of each author will be reproduced photographically, so as to lay the source before the reader without the mistakes which creep into a newly printed text. An Introduction will be prefixed to each work, giving the necessary biographical details concerning its author and stating the importance of the text and its place in International Law ; tables of errata in the original will be added when necessary, and notes to clear up doubts and ambiguities or to correct mistakes in the text will be supplied. Each work will be accompanied by an English version made expressly for the series by a competent translator. James Brown Scott, Director of the Division of International Law, will supervise these publications as General Editor. ZoucHE, Richard : Juris et Judicii Fecialis, sive, Juris inter Gentes et Quaes- tionum de Eodem Explicatio. 2 vols $4.00 Vol. I. A Reproduction of the First Edition (1650), with portrait of Zouche. Introduction by Thomas E. Holland, List of Errata, and Table of Authors. Pages xvi-1-204. Vol. II. Translation of the Text, by J. L. Brierly. Pages xvii-|-186. Ayala, Balthazar: De Jure et Officiis Bellicis et Disciplina Militari. 2 vols $7.00 Vol. I. A Reproduction of the Edition of 1582, with portrait of Ayala. Introduction by John Westlake, etc. Pages xxvn-|-226. Vol. II. Translation of the Text, by John Pawley Bate. Pages xvi-l-24S. Vattel, E. de: Le Droit des Gens. 3 vols $8.00 Vol. I. A Photographic Reproduction of Books I and II of the First Edition (1758), with an Introduction by Albert de Lapradelle. Lix-|-541 pages, and portrait of Vattel. Vol. II. A Photographic Reproduction of Books III and IV of the First Edition (1758). xxiv-|-376 pages. Vol. III. Translation of the Edition of 1758 (by Charles G. Fenwick), with translation (by G. D. Gregory) of Introduction by Albert de Lapradelle. Lxxxyiii-|-398 pages. Rachel, Samuel: De Jure Natures et Gentium Dissertationes. Edited by Ludwig von Bar. 2 vols. , $4.00 Vol. I. A Reproduction of the Edition of 1676, with portrait of Rachel, Introduction by Ludwig von Bar, and List of Errata. Pages 16a4-xH-335. Vol. II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited. Pages 16a-1-iv-|-233. Textor, Johann Wolfgang: Synopsis Juris Gentium. Edited by Ludwig von Bar. 2 vols. Price to be announced. Vol. I. A Reproduction of the First Edition (1680), with portrait of Textor, Introduction by Ludwig von Bar, and List of Errata Pages 28A-|-vi-fl48-|-168. Vol. 11. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited. Pages 26A-|-v-t-349. Victoria, Franciscus A : Relectiones : De Indis and De Jure Belli. Intro- duction by Ernest Nys. Translated by John Pawley Bate. Price to be announced. Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 28 EXTRACTS FROM AMERICAN AND FOREIGN WORKS ON INTERNATIONAL LAW CON- CERNING THE ARMED NEUTRALITY OF / 1780 AND 1800. PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 28 EXTRACTS FROM AMERICAN AND FOREIGN WORKS ON INTERNATIONAL LAW CON- CERNING THE ARMED NEUTRALITY OF 1780 AND 1800. PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 /^ %vz^. Prefatory Note A previous pamphlet of the present series contains the texts of the agreements constituting the first and second armed neutrahty of 1780 and of 1800, and in the prefatory note a statement was made that an expression of personal opinion was avoided. It is, however, very im- portant that the origin, nature, and effect of the armed neutrality should be understood, and for this purpose the views of accredited American and foreign publicists dealing with this matter have been collected and issued in the present pamphlet. In addition to the extracts contained herein, the reader will find in the Introduction to Pamphlet No. 27 entitled Official Documents^ bear- ing on the Armed Neutrality of lySo and i8oo an extended account of the subject by the distinguished American publicist Doctor Henry Wheaton taken from his work on the history of the law of nations. It should be said, in conclusion, that the authors have been chosen, not merely for the value of their contributions, but because they are of different nationalities and can be considered as fairly representative of the views of their respective countries, as publicists are wont to expound and to defend the policies of their countries. James Brown Scott, Director of the Division of International Law. Washington, D. C. February 28, 1917. Contents PAGE Calvo: Le Droit International Theorique et Pratique 1 I Jail : The Rights and Duties of Neutrals 10 Heffter: Le Droit International de I'Europe 11 Katchenovsky : Prize Law : particularly with reference to the duties and obligations of belligerents and neutrals. 14 Kleen : Lois et Usages de la Neutralite 31 Manning: Commentaries on the Law of Nations 42 Nj'^s : Le Droit International 56 Phillimore : Commentaries upon International Law 67 Pradier-Fodere : Traite de Droit International Public Europeen et Americain 81 Trescot: The Diplomacy of the Revolution 84 Twiss : The Law of Nations considered as Independent Political Communities. On the Rights and Duties of Nations in Time of War -. . . 89 Walker: The Science of International Law 90 Westlake: International Law, Part II, War 100 Wharton : A Digest of the International Law of the United States 102 Woolsey : Introduction to the Study of International Law, de- signed as an aid in teaching and in historical studies 105 EXTRACTS FROM AMERICAN AND FOREIGN WORKS ON INTER- NATIONAL LAW CONCERNING THE ARMED NEUTRALITY OF 1780 AND 1800. CALVO': Le Droit International Theorique et Pratique. Fifth edition, Paris, 1896. Carlos Calvo. Argentinian publicist and diplomat; born in 1824; died in 1906; member of the Institute of International Law. M. Calvo entered, at an early date, the consular service of his country and later was Argentinian minister at Berlin and Paris. He therefore wEls familiar with the theory and practice of international law. J'wo of his most important works are : 1. International Law of Europe and America, Theoretical and Practical, 1868, 2 volumes. This work appeared in Spanish, was translated and expanded by the learned author into a comprehensive treatise on international law, the fifth edi- tion of which appeared in 1896 in six volumes. 2. Dictionnaire de Droit International, 1885, 2 volumes. This work covers the field of international law, public and private, in the form of brief articles, ar- ranged alphabetically under appropriate headings, and is especially valuable for the biographical notices of the various publicists who have treated international law. M. Calvo is regarded as the leading Spanish writer on international law, and as a Latin-American by origin his various treatises have a peculiar value as a statement of the Latin-American theory and practice as well as the system of International law as understood and applied in Europe. Volume IV, page 414, § 24^8. — The rule established by the Con- solato del Mare was not merely shaken at this time by the criticisms of publicists and by the contrary doctrine of the courts; it was also censured by most of the conventional engagements concluded between France and various nations, to such an extent that during the period between 1654 and 1780 it is found in only fifteen treaties, while thirty- six sanctioned the new principle : free ship, free merchandise, and enemy ship, enemy merchandise} iSee especially the treaties concluded by France with Spain, November 7, 1659 [Dumont, vol. vi, part 2, p. 264 ; Savoie, vol. ii, p. 1 ; Leonard, vol. iv] , with Denmark, February 14, 1663 I Dumont, vol. vi, part 2, p. 436 ; Leonard, vol. v], with Portugal, March 31, 1667 [Dumont, vol. vii, part 1, p. 17; Castro, vol. i, p. 338; Leonard, vol iv], with Sweden, April 14, 1672 [Dumont, vol. vii, part 1, p. 166; Leonard, vol. v], with Great Britain and Holland, April 11, 17i3 [Dumont, vol. viii, part 1, pp. 345, 377]. 2 THE ARMED NEUTRALITY OF 1780 AND 1800 § 2499. — The unshakable constancy of the English policy during this period deserves attention from more than one point of view. On the basis of the maxims proclaimed by Consolato del Mare, England permitted the perpetration of the most odious attacks against the property of the neutrals, including among the articles of war contraband almost all articles of licit commerce and went as far as to confiscate articles of food and of clothing. She pretended in 1756 that by adoption, the Dutch vessels had been converted into French vessels, that is to say, into enemy vessels, and she condemned them to confiscation in order to prevent the French colonies to continue their traffic with neutrals and thus hope to mobilize the commerce of colonial produce. We know that the excesses of this engaging and covetous policy brought about in 1780 the belated, yet generous attempt known under the name of first armed neutrality.^ § 2^00. — The most characteristic trait of the historic period which ends with the last half of the Eighteenth Century is the incertitude as to the real limitations to the rights of the neutrals, the logical and necessary consequence of the lack of uniformity in jurisprudence, of the absence of understanding between the secondary maritime Powers of the European Continent in order to protect themselves against the Prussians weighing on them, and of the persistency of England to cause her maritime supremacy to dominate. § 2^01. — The secret tendencies and the righteous resentment of the principal courts of Europe were at last brought to the bursting point when England seized in the Mediterranean two Russian vessels loaded with wheat which were supposed to be intended for Gibraltar. Panin, the Chancellor of the Russian Empire, made himself the mouthpiece of the general indignation and persuaded Empress Cath- erine II to' make it publicly and solemnly known that she would not longer put up with the obstacles placed in the way of free neutral commerce. As a result, the Russian Government published on Feb- ruary 28, 1780,^ the famous declaration containing the following five bases : iGessner, pp. 30, et seq.; Flassan, Hist., vol. i, chapter iii, p. 194; Valin, Com., book iii, title 9; Wheaton, Hist., vol. i, p. 62; Wheaton, Elem., part 4, chapter iii, § 23 ; Life nf Sir L. Jenkinson. vol._ ii, p. 720 ; Heffter, § 1S2 ; Marshall, on Insurance, vol. i, p. 425 ; Ortolan, vol. ii, p. 100 ; Verge, Precis de Martens, vol. ii, p. 348; Gessner, pp 36, et seq.; Wheaton, Elem., vol. ii, pp. 149, et seq.; Heffter, § 158; Madison Examination, pp. 51, et seq.; Ortolan, vol. ii, pp. 109, et seq.; Reddie, Researches, vol. i, pp. 92, et seq.; Bergbohm, Die beivaffncte Neutralitdt, 1880-1883. ^Martens, first edit., vol. ii, p. 74; second edit, vol. iii, p. 158. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 3 1. Neutral vessels are permitted to sail from port to port and along the coasts belonging to the belligerent States, without being detained. 2. Enemy merchandise is free under neutral flag, excepting war contraband. 3. To determine that which is to be regarded as war contraband, Russia holds to Articles 10 and 11 of her treaty with England, dated June 20, 1766,^ to which it grants obligatory force with regard to all belligerents. 4. No port shall be regarded as blockaded unless there be real and effective danger to entering it, that is to say, it must be surrounded by the enemy. 5. These principles shall serve as a rule in the procedures and deci- sions of maritime prize courts. The same Government furthermore forbids the commission of hos- tile acts in the Baltic Sea, to which Sea it attributed the character of a closed or internal sea, mare clausum. This declaration had hardly been formulated when Denmark, July 9. 1780,=' Sweden, August 1, 1780,^ Holland, January 3, 1781,* Prus- sia, May 8, 1781,^ Austria, October 9, 1781,^ Portugal, July 13, 1782,^ the two Sicilies, February 10, 1783,'' France and Spain, as well as the United States which was at this time at war with Great Britain, gave their adhesion to it ; all of these Powers obligated themselves to main- tain and to respect the new principles though, to uphold them, they should be forced to the recourse of arms. One understands that principles such as Europe, stipulated by the initiative of Russia sought to cause to prevail in practice and which in evident fashion mark a new era in modern maritime law, could not re- ceive the approval of England. The St. James' ministry refused there- fore to join the league of the neutrals declaring that it would continue to hold to the stipulations, following therein a precise and reasonable ^Martens, first edit., vol. i, p. 141 ; second edit., vol. i, p. 390 ; Wenck, vol. iii, p. 572. ^Martens, first edit., vol. ii, p. 103 ; vol. iv, p. 357 ; second edit., vol. iv, p. 189. 'Martens, first edit, vol. ii, p. 110; second edit., vol. iii, p. 198. ^Martens, first edit, vol. ii, p. 117; vol. iv, p. 375; second edit., vol. iii, p. 215. ^Martens, first edit, vol. ii, p. 130; second edit, vol. iii, p. 245. ^Martens, first edit. vol. ii, p. 171 : second edit, vol. iii, p. 257. ^Martens, first edit, vol. ii, p. 208; second edit, vol. iii, p. 263; Castro, vol. iii, p. 310. ^Martens, first edit., vol. iii, p. 274; second edit., vol. iii, p. 267. 4 THE ARMED NEUTRALITY OF 1780 AND 1800 course, contained in England's treaties of commerce and of navigation. But once started, the movement was not to stop in the face of this selfish resistance, and England was soon compelled to abandon the violent road within which it pretended to persist in disregard of the sacred rights of neutrality; she permitted the importation under any flag of merchandise coming from the East and from the Antilles, and directed her privateers to be more moderate in their conduct/ § ^502. — After the conclusion of the Versailles peace of 1783,^ which closed the War of Independence of the United States, England, France and Spain again put into force the stipulations of the Utrecht Treaties' with regard to commerce and navigation of the neutrals. Three years later, the treaty signed on September 26, 1786,* between France and the United States sanctioned the general principles of armed neutrality in such a formal manner that the English Government became the object in Parliament of vehement attacks for having accepted and recognized them.^ § 2^0^. — The abnormal conditions of the war in the train of the French Revolution unhappily brought about a return to all the violence and abuse which universal reprobation seemed to have forever put an end to. Thus, the allied governments, in disregard of the imprescrip- tible rights of the neutrals, arbitrarily extending the list of so-called articles of war contraband, opposed importation into France of food and merchandise of foreign origin. On the other hand, the National Convention,' in a sense of legitimate defense, promulgated May 9, 1793, a decree inhibiting neutral vessels, under the penalty of confisca- tion, from furnishing grains and food to the enemy, and edicted the abrogation of the principle that the flag protects merchandise. The Britannic Government, secretly availing itself of this pretext to return 'Gessner, pp. 39, el seq." Wheaton, Hist., vol. i, p. 221; Goertz, memoirs; Galiana, Dei doveri; Lampredi, Commercio; Wheaton, Elem., part 4, chapter iii, § 23; Kliiber, Droit, §§ .303-305; Ortolan, vol. ii, pp. 137, et scq.; Martens, Precis, § 325 ; Verge, Precis de Martens, vol. ii, p. 351 ; Bergbohm, Die bewaffnete Neutralit'dt, pp. 210, et seq. 2De Clercq, vol. i, p. 142 ; Calvo, vol. iv, p. 296 ; Cantillo, p. 586 ; Martens, first edit, vol. ii, pp. 462, 484; second edit., vol. iii, pp. 519, 541; State papers, vol. i, p. 424. ^De Clercq, vol. i, p. 10 ; Dumont. vol. viii, part 1, pp. 345, 351. •^De Clercq, vol. i, p. 146; Martens, first edit., vol, ii, p. 680; second edit, vol. iv, p. 155 ; State papers, vol. iii, p. 342. •"^Gessner, pp. 43, 44; Wheaton, Elem., part 4, chapter iii, § 23; Wheaton, Hist., vol. i, p. 230; Ortolan, vol. ii, pp. 142, 143; Verge, Precis de Martens, vol. ii, p. 354; Parliamentary History of England, vol. xxxvi, p. 563. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 5 to its traditional doctrines of 1756 published on June 8, 1793,^ an ordinance directing its privateers and warships to capture any vessel attempting to force the blockade of the French coasts, excepting there- from Swedish and Danish vessels, which were only to be seized in case they failed to observe the notification of the blockade stated in their ships' papers.^ § 2504. — England's allies endeavored in vain to justify these meas- ures as being of. only an exceptional and transitory nature; Russia refused to abide by them, separated herself from England, from Austria, and resolutely laid down the bases of maritime neutrality v/hich the' States bathed by the Baltic Sea proclaimed in 1800,^ These bases may be summarized as follows : 1. A neutral vessel shall not be considered as violating the blockade and shall not be subject to capture unless, after having been warned by the war-ship or the privateer of the State which enforces the block- ade, it attempts to run the blockade by force or by ruse. Merchant vessels sailing in convoy under the escort of a war-ship are exempt from search, and the statement of the convoying officer suffices to prove that they are not carrying war contraband. Even before this new coalition had had time to gain strength and come to an understanding, England declared war against Denmark for having joined the alliance and proceeded to bombard Copenhagen; the subsequent tragic death of Emperor Paul I of Russia on March 23, 1801, finished the dissolution of an alliance from which the sec- ondary states had had right to expect great advantages for the security of their commerce. § 2505. — Profiting by the successes of her marine against Denmark, England resumed the negotiations which she had conducted with Russia for some years, thus expecting the St. Petersburg ministry not only to dissolve the armed neutrality, but also of adhering to the doctrines proposed by the Britannic Admiralty. In these hopes she was particularly disappointed: as the price for some commerce ad- iMartens, first edit, vol. v, p. 264 ; second edit, vol. v, p. 596. ^Ortolan, vol. ii, pp. 144, et seq.; Gessner, pp. 44, 45; Wheaton, Elem., pt 4, chapter iii, § 23. ^See the conventions of Russia with Denmark of December 16, 1800 [Martens, first edit. Supplement, vol. ii, p. 399 ; second edit, vol. vii, p. 181 ; State papers, vol. i, p. 327], with Sweden of the same date [Martens, first edit., vol. vii, p. 516; first edit, Supplement, vol. ii, p. 389; second edit, vol. vii, p. 172] with Prussia of December 18. 1800 [Martens, first edit, Supplement, vol. ii, p. 406; second edit, vol. vii, p. 188]. 6 THE ARMED NEUTRALITY OF 1780 AND 1800 vantages, she was forced into consenting that the Maritime Convention oi June 17, 1801,^ should by its Article 3 sanction the following prin- ciples : 1. Neutral vessels may freely sail to the ports and along the coasts of the belligerent nations. 2. Merchandise on board shall be free, excepting the so-called war contraband and etiemy property, merchandise of enemy origirl, but pur- chased and carried by the neutral preserving at all events the advan- tages accrued to the flag of the latter. 3. In order to remove all doubt as to the nature of the objects which constitute war contraband, the contracting parties refer to Article XI of the Treaty of Commerce concluded between themselves on Febru- aiy 21, 1797.^ 4. A port shall be regarded as blockaded only in case entrance thereto ofl'ers a real danger by reason of the number of war-ships charged with inhibiting access thereto. 5. Judicial action against neutral vessels captured because of estab- lished suspicions or of evidently culpable facts shall be had without delay, and the mode of procedure shall be uniform and strictly legal. The dispositions which follow shall be rigorously imposed upon all the States wishing to adhere to the treaty. The so delicate question of the visit of convoyed ships was resolved in these terms by Article 4: 1. The right of searching merchant vessels owned by the subjects of one of the two Powers and sailing under the escort of a war-ship of their nation belongs exclusively to vessels of like rank of the bellig- erent State, and may not be exercised by private ship owners nor by corsairs. 2. The owners of vessels destined to sail in or convoy under the escort of a war-ship shall, before receiving their nautical instructions, present to the chief of the convoy their passports and their sea cer- tificates, in the form established by the treaty. 3. When a convoy is made by a war-ship of the belligerent parties, the latter, unless the weather conditions upon the sea or the vicinity in which the encounter takes place prevent it from doing so, shall hold itself beyond cannon range and send a longboat to the convoying ves- sel in order to proceed in common accord to the examination of the iHertslet, vol. i, p. 208; Martens, first edit., Supplement, vol. ii, p. 476; second edit, vol. vii, p. 260. ^Martens, first edit., vol. vi, p. 722 ; second edit., vol. vi, p. 358. EXTRACTS FROM WORKS ON INTERNATIONAL LAV^ 7 papers and certificates declaring that the one is authorized to escort such or such ships with such or such cargo from port A to port B, and that the other really belongs to the royal or imperial marine of the nation whose flag she flies. 4. After the regularity of the papers has been recognized, any legiti- mate suspicion shall be regarded as having been removed, in the con- trary case, the chief of the convoy, after having been invited thereto in due form by the belligerent shall stop long enough in order to per- mit the belligerent war-ship to proceed with the search of the vessels composing the convoy. 5. If after the examination of the papers, the captain of the war- ship believes that he has good reason to detain one or several of the convoyed vessels, he shall be free to do so by preliminarily placing the captain of the crew at the disposal of the chief of the escort, who in turn shall be entitled to place on board the sequestered vessels any one of his officers to follow the procedure of the investigation which it will be necessary to perform. The captured vessel shall then be conducted forthwith to the nearest and most convenient port of the belligerent nation in order to subject it to a regular examination. A last article, the fifth, forbids the chief of the convoy to resist by force the execution of the acts prescribed by the commander of the belligerent vessel. Various accessory stipulations of this treaty sanctioned under the guaranties in the interests of the neutrals ; one of these in particular states that in case of an ill-founded detention or of the violation of the established laws, a proper indemnity shall be due the owners of the vessel and of the cargo in proportion to the losses they shall have sustained. In order to forestall the abusive use of third flags, Article 7 estab- lishes that, in order that a vessel may be regarded as legitimately belonging to the nation whose colors she flies, the captain and half of the crew must be subjects of the same nation. Finally, Article 8 declares applicable to all maritime rules under- taken by the contracting parties, the principles of this treaty adhered to by Denmark on October 23, 1801,^ and by Sweden on March 30, 1802.2 iHertslet, vol. i, p. 204: Martens, first edit., Supplement, vol. Hi, p. 193; second edit., vol. vii, p. 273. ^Martens, first edit. Supplement, vol. iii, p. 196 ; second edit., vol. vii, p. 276. 8 THE ARMED NEUTRALITY OF 1780 AND 1800 § 2^o6. — As also seen from this analysis, it was the purpose of the Anglo-Russian Treaty to consolidate through general formulas, the rules established by the two armed neutralities of 1780 and of 1800 with the traditional principles of the maritime law of Great Britain. Looked at from this point of view, it must be acknowledged that this arrangement was only a compromise between two opposite elements; it had, however, for its final result the partial abandonment of the violent policy of the London ministry. The nations of the North did indeed consent to weaken in fact the rigor of the doctrine that the free vessel protects the cargo it bears, and to submit to the right of search which they had hitherto opposed; but they obtained at the same time recognition for the principles of armed neutrality with regard to effective blockades and to the commerce with the colonies and along the coasts of the enemy. To feel convinced that this was the real meaning of the St. Peters- burg Treaty, it will suffice to refer to the discussions which took place in the House of Lords, at the sitting of November 12, 1801. Lord Gren- ville spoke first and declared that what had been stipulated was in manifest contradiction with the previous attitude of the ministers of his Britannic Majesty, and that the exaggerated pretensions of the Baltic Powers had been singularly favored by the weak and vacillating policy of England during the last years of the war waged against the United States. According to the same orator, the Government had assumed a yielding attitude whose tendency could not be controlled, and gradually it had followed a course it had not dared acknowledge one year before, while on their part the other Powers had little by little yielded of their pretensions which they had maintained relative to this question and exposed themselves, by following- in the footsteps of the Russian Government, to yield by making first one and then another concession, to the reestablishment of the ancient maritime law and to the notification of conquests so laboriously realized by the neutrals during the previous twenty-five years. § 2§o/. — The final result was that the treaty of June 17, 1801,^ proved unsatisfactory to all of the contracting parties: to England because it interfered with her policy ; to the neutrals because it re- stricted their rights ; and for this reason also Russia denounced the treaty in the course of the year 1807 by proclaiming again the prin- iHertslet, vol. i, p. 208 ; ' Martens, first edit, Supplement, vol. ii, p. 476 ; second edit., vol. vii, p. 260. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 9 ciples which formed the basis of the armed neutrahty of 1801 and by pledging herself to abide by it faithfully in the future. Thus freed from its conventional engagements, the English Government reestab- lished its ancient doctrines not only against Russia, but even against all the other neutral Powers. One fact worthy of our notice is that not a peace treaty or a com- mercial treaty concluded since by England, either with Sweden, or with Denmark, contains the slightest stipulation concerning the prin- ciples of maritime law in the interest of the neutrals who had for such a long time roused the attention of Europe.^ Volume IV, page §18, § 2638. — The neutral State shall not merely observe neutrality, but even have its situation respected by third par- ties and to that effect take all necessary measures. If need there be, it may equip land and sea forces in order to safeguard its rights against any attack and to prevent the belligerents from entering its territory: This is what is termed armed neutrality. Neutrality, when the State which proclaims it is not in position to make it respected by an even- tual recourse to armed force, is doubtless a rather precarious guar- anty. It is therefore admitted that the neutral who does not feel him- self strong enough to defend himself aloiie is entitled to ally himself with others to perfect an action and help against attacks which the belligerents might direct against their common neutrality, thus, at the end of the last century and at the beginning of the present one, we have seen the maritime Powers of the North of Europe unite collec- tively and mutually to protect their rights against the pretensions of England which violated the independence and the immunities of mari- time neutrality.^ ^Ortolan, Regies, vol. ii, pp. 1S3-1!)6; Caucliy, vol. ii, pp. 339, et seq.; Gessner, pp. 44-46; Wheaton, Elem., pt. 4, chapter iii, §23; Kliiber, Droit, §§307, et seq.; Martens, Precis, §.326='; Cussy, Phases, vol. ii, pp. 203, et seq.; Verge, Precis de Martens, vol. ii, p. 3SS; Manning, pp. 274, et. seq. apiore vol ii, p. 369; Bluntschli, §§748, 778; Kliiber, Droit, §282; Heffter, §§ 145, 149. 10 THE ARMED NEUTRALITY OF 1780 AND 1800 HALL: The Rights and Duties of Neutrals. London, 1874. William Edward Hall. British publicist and member of the Institute of Inter- national Law, born in 1835, died in 1894. Mr. Hall is known in international law for his Rights and Duties of Neutrals, 1874, and especially for his masterly Treatise on International Law, first published in 1880. The latter work has run through six editions, and has been regarded as an authority — indeed, a classic — from the date of its appearance, in 1880. The writer's national bias crops out at times, and has subjected the work to no little criticism. Page io6. — It was natural, however, that the secondary maritime powers should in time accommodate their theories to tiheir interests. They were not sure of being able as belligerents to enforce a stringent rule; they were certain as neutrals to gain by its relaxation. Accord- ingly, in 1780 Russia issued a declaration of neutral rights, among the provisions of which was one limiting articles of contraband to- muni- tions of war and sulphur. Sweden and Denmark immediately adhered to the declaration of Russia, and with the latter power formed the leagtie known as the First Armed Neutrality. Spain, France, Holland, the United States, Prussia, and Austria, acceded to the alliance in the course of the following year. Finally it was joined in 1782 by Pbr- tugal, and in 1783 by the Two Sicilies. It is usual for foreign publicists tO' treat the formation of the Armed Neutrality as a generous effort to bridle the aggressions of England, and as investing the principles expressed in the Russian declaration with the authority of such doctrines as are accepted by the body of civilized nations. It is unnecessary to enter intO' the motives which actuated the Russian Government;* but it is impossible" to admit that the doctrines which it put forward received any higher sanction ,at the time than such as could be imparted by an agreement between the Baltic powers. The accession of France, Spain, Holland, and the United States was an act of hostility directed against England, with which they were then at war, and was valueless as indicating their settled policy, and still more valueless as manifesting their views of existing international right. It was the seizure by Spain of two Rus- sian vessels laden with wheat which was the accidental cause of the iThe intrigues which led to the issue of the Russian declaration are sketched by Sir R. Phillimore, iii, Sec. 186 ; see also Lord Stanhope, History of England, chap. Ixii EXTRACTS FROM WORKS ON INTERNATIONAL LAW 11 original declaration, and within a few months of adhering- to the league France had imposed a treaty upon Mecklenburg, and Spain had issued an Ordinance, both of which were in direct contradiction to parts of the Declaration.^ The value of Russian and Austrian opinion in the then position of those countries as maritime powers is absolutely trivial. Whatever authority the principles of the Armed Neutrality possess, they have since acquired by inspiring to a certain but varying extent the policy of France, the United States, Russia, and the minor powers. Page 141. — The Second Armed Neutrality reasserted for a moment the principles of 1780, but one of the 'articles of the treaty concluded between England and Russia in 1801, to which Denmark and Sweden afterwards acceded, provided that the property of enemies on board neutral vessels should be confiscable. In 1807 Russia annulled the convention of 1801, and proclaiming afresh the principles of the Armed Neutrality, declared that she would never depart from them ;^ but in 1809 an ukase was issued under which "ships laden in part with the goods of the manufacture or produce of hostile countries were to be stopped, and the merchandise confiscated and sold by auction for the profit of the crown. But if the merchandise aforesaid compose more than half the cargo, not only the cargo, but the ship also shall be confiscated." ' HEFFTER : Le Droit International de I' Europe. Translated by Jules Bergson. Fourth French edition, enlarged and annotated by F Heinrich Geffcken. Berlin, Paris, 1883. August Wilhelm Heffter. German publicist; born 1796; died 1880; Professor in the University of Berlin ; Alember of the Institute of International Law. His well-known treatise, entitled "Das Europdischc Volkerrcchi dcr Gegenwart auf lAll the signataries to the Declaration of the Armed Neutrality violated one or other of its provisions when they were themselves next at war. ^Ortolan, ii. 156. 3De Martens, Recueil, Supp. v. 485. 12 THE ARMED NEUTRALITY OF 1780 AND 1800 den bisherigen Grundlagen," appeared in 1844, and was regarded immediately upon its publication as a leading, if not the most scientific and accurate volume devoted to international law. The author had large experience at the bar and on the bench and was for many years an ornament of the University of Berlin. The work has been translated into various languages. Page jdi"^ note 4. — The principles contained in the first declaration of the Court of Russia, dated February 28, 1780, may be summed up as follows: (1) Neutral vessels may sail freely from port to port along the coasts of the nations at war. (2) Effects belonging to subjects of the said Powers at war are free on board neutral vessels, with the exception of contraband goods. (3) As to the determination of what is contraband, the Empress abides by the provisions of Articles 10 and 11 of her treaty of com- merce with Great Britain, extending the application of these obliga- tions to all the Powers at war (these articles lirfiited the prohibition to arms and munitions of war). (4) To determine what constitutes a blockaded port, none shall be considered such except a port where the attacking Power shall have stationed its war-ships sufficiently near to render access thereto dan- gerous. (5) These principles shall constitute the rule in proceedings and ' judgments involving the legality of prizes. See de Martens, Recueil, vol. 3, p. 158. Several other provisions contained in subsequent treaties were added to those mentioned above. The history of the armed neutrality and its numerous vicissitudes has been very well told by Kliiber, Droit des gens, §§ 303-309; Wheaton, History, p. 223, 311 et seq. (I, 358; II, 83 ed. 2). See also the writers quoted by Kamptz, § 258. On the stand taken by the Congress of the United States of America with regard to the question, see Trescot, The Diplomacy of the Revolution, New York, 1852, p. 75. [Geffcken's Note: The war waged by England from 1775-1783 with its insurgent American Colonies had, by the participation of France and Spain, assumed a general aspect. France and Holland maintained the prin- ciple that the flag covers the goods ; but Spain and England refused to recognize this principle. The latter especially employed its prepon- derant naval strength in a way that worked great hardship to neutrals. At the same time England eagerly sought an alliance with Russia. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 13 According to the memorials of Goertz and of Sir James Harris (Lord Malmesbury), the English envoy had won Potemkin over to his side, and their scheme was only frustrated by a clever stroke on the part of the Minister of Foreign Affairs, Count Panin, a partisan of Frederick II, who had been hostile to England ever since that country had deserted Prussia during the Seven Years' War. Panin had dazzled the eyes of the Empress with the armed neutrality league of 1780 as a movement in the interest of civilization, and Catherine did not- have a very clear notion of the scope of this measure, which was really directed against England. This version is no longer tenable,- in view of the recent publications of Katchenowsky (Prize Law), of Mr. de Martens in his commentary contained in the collection of treaties con- cluded by Russia, volumes 2 and 3, and of Eichelmann, Der Bewaffnete Neutrcditatsbund Russlands vom Jahre i/8o. These works show that the league was a plan carefully thought out by Catherine and followed from 1778 by negotiations with Denmark for the purpose of safe- guarding the rights of neutrals. It was Count Bernstorff, the eminent Danish Minister, who gave practical form to the ideas of the Empress, and the seizure of a Russian vessel by the Spanish Government was the final blow which removed the difference of opinion between Russia and Denmark with regard to the measures to be taken. The declara- tion adopted by the two Powers was submitted to Sweden, the Nether- lands, France, the United States, Prussia, and Austria, with a view to their accession. It was the first great collective measure of maritime law, for the States which acceded to the Russian declaration adopted also its system in their intercourse with each other, and in spite of its imperfections, it was a progressive measure uniting neutrals for the defense of their rights against the arbitrary action of England. This explains the cordial welcome that greeted the Russian proposal and assures it an important place in the history of international law. There- fore if Catherine subsequently asked Sir James Harris, as he relates, "But in what way does this neutrality, or rather armed nullity, hurt you ?" it was merely a part of her tactics. Harris's answer is no less interesting. "In every way that it possibly can," said he. "It lays down new laws which protect the commerce of our enemies while ex- posing ours; it leaves them their merchant ships for the transporta- tion of their troops ; it tends to confuse our friends with our enemies. We shall do everything we can for your ships, but Your Imperial Majesty surely does not intend by this armed neutrality that every nation shall enjoy the same right." On Catherine's refusal to aban- 14 THE ARMED NEli'TRALITY OF 1780 AND 1800 don her declaration, England, in order to win over Russia and other neutral Powers, consented to make special concessions by treaty, but refused to adhere to the declaration, although Fox, who had entered the Ministry in 1782, looked upon it with favor. On making peace with France in 1783, England simply renewed the aforesaid stipulations of the treaty of Utrecht. It refused a similar concession to Holland, which had enjoyed these rights since 1634, as well as to the United States, and thus succeeded in destroying the coalition of the signatories of the declaration, which was gradually abandoned by all the Powers which had adhered to it. On March 25, 1793, Russia even signed a treaty with England, prohibiting neutrals to give even indirect protec- tion to the commerce or property of the French, with whose country they were at war (Article 4) Martens, Recueil, vol. 5, p. 115; Fox, Memorials, I, III). The Wars of the French Revolution in general revived these abuses. The Allied Governments forbade neutrals to carry into France provisions and goods from foreign sources. The Convention followed suit in its own defense, and on March 9, 1793, abrogated the principle that the flag covers the goods. In 1794 England proclaimed the rule that neutral nations had the right to carry merely their own products, but not those of other countries ( Katchenovsky, p. 77, note i). France replied to these measures by declaring every vessel to be lawful prize that was laden even partially with goods emanating from England, no matter who was their owner, and drew up a list of articles reputed to be the products of English factories, no matter where they actually were made. The Baltic States, on their part, proclaimed anew in 1800 the principles of armed neutrality, with certain additions.] KATCHENOVSKY : Prize Laiv: particularly with reference to the Duties and Obligations of Belligerents and Neutrals. London, 1867. Dmitrii Ivanovich Katchenovsky. Russian publicist; born in 1827; died in 1872 ; professor of international law at the University of Kharkov. Professor Katchenovsky is well known in the literary circles of the Continent for the ex- tent and accuracy of his attainments and is the author of several learned and interesting works. EXTRACTS FROM WORKS ON INTERNATIONAL LAW IS Page 6i. — In the year 1776 commenced the memorable struggle between England and the United States of America. Experience proves that civil wars are particularly cruel, and are seldom conducted on any principle of justice or international law. Consequently, in order to remove all pretexts on the part of the belligerents for the oppression of commerce, the neutral Powers hastened to publish decrees in the same spirit, enjoining their subjects under fear of pun- ishment to observe strict impartiality in that war. But these measures were to no purpose, as, amongst the belligerents, France alone made any perceptible modification in her former practice about neutral trade, whilst Spain openly avowed her intention of acting towards the neu- trals in the same way as they allowed the English to treat them. Great Britain returned to her former system, and, taking advantage of the internecine character of the war, endeavored wholly to suppress neutral commerce. Regarding her enemies as rebels, and their allies as abet- tors of civil war, she forbade all nations to have any connection with her former colonies. The English privateers, taking advantage of this feeling on the part of their government, and in the hope of all their captures being condemned as prizes, attacked every suspicious looking vessel they encountered. It must be added that the list of contraband goods was considerably enlarged, and the definition of blockade ren- dered still more vague at that time. Marriott, then judge of the Admiralty Court, laid down the following principles of maritime war as immutable: 1. The belligerent has a right to seize on board neutral ships everything which might be made use of by the enemy for his defense. 2. Great Britain, lying between the German Sea and the Atlantic Ocean, forms, by its very position, a natural blockade to all the ports of France and Spain. 3. The rights of neutral nations de- pend on the customs or practice of the belligerents ; treaties are but temporary privileges, valid only as long as the Admiralty Court finds it convenient to make use of them. The effect of this prize practice threatened ruin to neutral commerce, since it was evident that England would allow no maritime law but her own to be enforced. Happily, however, international justice at that time found powerful supporters in other parts of Europe; for, from the year 1780, Russia formed with seven other Powers a strong coalition, which checked the violence of privateers, and secured the .rights of neutrality.^ iMartens, Recueil, vol. iii, p. 1S8. See Additional Note at end of this Period, p. 70. 16 THE ARMED NEUTRALITY OF 1780 AND 1800 There was no difficulty in the allies agreeing upon fundamental principles : they resolved — 1. Only to permit the seizure of neutral vessels where the duties of neutrality had been unquestionably violated. 2. To require from the belligerents that judicial proceedings against neutrals should be commenced without delay, and in accordance with an uniform, clear, and legal system. 3. In case of neutrals having unjustly suffered, to compel the bellig- erents not only to pay damages, but also to make compensation for the insult offered to the neutral flag, otherwise to have recourse to reprisals. 4. To adopt these rules as the principle of a future maritime code (Code Maritime Universel). The armed neutrality soon succeeded in its object, and put an end to the irregularities of the Admiralty Courts. France, Spain, Hol- land and the United States revoked their former decrees, and pub- lished new ones in conformity with the declaration of the Empress Catharine.^ Great Britain herself was at last obliged to yield to the influence of this powerful coalition, and mitigated, though not avowedly, the severity of her prize laws.^ One of the best results of the coalition was the diminution of privateers, according to the testi- mony of a contemporary, who says, "At the end of the war privateer- ing had almost disappeared, and neutral commerce flourished almost as much as in a time of profound peace." ' At the conference of Versailles, the commercial treaty of Utrecht was again renewed by England, France, and Spain ; but knowing by '^The French Government had already in the year 1780 directed their admiral and privateers not to molest neutrals, even though apparently destined to enemy's ports, and in no case to capture them, unless they had a cargo of war contraband, or were engaged in the transport of English troops, or harbored Englishmen under a neutral flag. Code des Prises, ii, 866-868, 875, 886. Martens, Recueil, vol. iii, p. 163. The Dutch decree of 1781 also adopts the principles of the armed neutrality. (Martens, Merkwurdige Fdlle, vol. ii, p. 313, Article 42.) The same may be said of Spain and of the United States of America, whose decrees are to be found in Martens, Recueil, vol. iii, p. 161 ; Wheaton, Histoire, vol. i, p. 367. 2In the years 1781-2, secret instructions were given to the English privateers, to the effect that they should carefully abstain from collision with neutrals. With respect to Russian ships, England showed no intention to enforce visitation, as we may conclude from the letter of Lord Malmesbury to Count Panin. See Lord Malmesbury's Diary and Correspondence, London, 1845, vol. i, pp. 232, 319, 410. The cabinet of St. James, however, never formally recognized the armed neutrality, but made every effort in its power to dissolve the coalition. Of the English statesmen Fox alone did not agree with his fellow-countrymen, and even intended afterwards to conclude with Holland, through the mediation of Russia, a treaty of peace on the principles of 1780. Lord Malmesbury, vol. iv, pp. 25, 26, 42, 53 ; Wheaton, Histoire, vol. i, pp. 367, 368. 'See Dohm, DenkwUrdigkeiten meiner Zeit, Lemgo, 1815, S. 153. See also Btisch, 284. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 17 experience that such renewals were of Httle practical utility, and fear- ing that the belligerents would return to their former malpractices, the members of the "armed neutrality" resolved to proceed with the work which had been so successfully commenced. Accordingly the prin- ciples of 1780 were more fully developed, and having been introduced nearly by all the nations of Europe into their commercial treaties and alliances, found support even in America. In the course of the next ten years, namely, from the peace of Versailles to the year 1793, meas- ures were taken and rules laid down in order to reform the prize law of the belligerents, and to secure the independence of neutrals at sea. Reviewing the treaties of that time^ we find in them some important clauses concerning the right of visitation {visite), evidence in prize courts, and the legal forms of proceeding. 1. Visitation. The declaration of 1780 made no mention of the right of search, and as long as the "armed neutrality" remained a powerful coalition, privateers did not venture upon a search or any other irreg- ular proceedings. In order to prevent at a future time a repetition of such abuses, the treaties (1783-1793) generally assume that visitation ought to be confined to the verification of the papers; while search, breaking open coffers, interrogating the crew, etc., are all strictly for- bidden to privateers. However, if on board the ship there are not found any papers, the privateer may, with the concurrence or at least in the presence of the owner or master, put a seal upon the cargo, make an inventory of it, and bring the ship into a port of his own country. Search then can only be made in the presence of an officer of the Admiralty Court, and immediately before the commencement of the suit. A neutral subject, on board of whose ship are found con- traband goods, may deliver them up to the privateer, and is entitled to, continue his voyage with the rest of the cargo without molestation.^ The declaration of 1780 is also silent on the question, whether a ship sailing under neutral convoy is free from visitation, but shortly after the establishment of the "armed neutrality," England and Sweden entered into an angry discussion on that subject, whereupon the Swed- ish Government addressed a note to that of Russia, to ask its opinion upon the point, and received for answer, that the subjecting of ships iThe Treaties of 1783-1793, in which are developed and explained the principles of the "armed neutrality," are to be found in the 3rd and 4th volumes of the collection of Martens. 2With respect to the treaties of the United States with Holland (1782), and of Russia with Denmark (1782) and Austria (1785), see Martens, Vol. iii, pp. 427, 468 ; iv, p. 72, etc. The same principles are adopted in a treaty between France and' England (1786). Martens, vol. iv, p. ISS. 18 THE ARMED NEUTRALITY OF 1780 AND 1800 under convoiy to visitation would be insulting to tlie national flag ; and that cruisers or privateers of the belligerents ought to be satisfied con- cerning the neutral character of the ship and cargo, with the verbal inforrhation oi the officer in command. This opinion of the Russian court met with general approbation,- and being considered as one of the principles of the "armed neutrality" was inserted in almost all the treaties of that time from the year 1782.^ 2. The evidence in prize cases is, according to treaties, the ship's papers,^ namely, passport, and documents about the nature and destina- tion of the cargo. As to the ownership of the cargo the neutral is not bound to have documents relating to that, because the property, even of an enemy, is considered free under a neutral flag (frei Schiif, frei Gut). The passport, which is not usually given for more than two years, and should be renewed on the return of the ship to its own country, ought to contain the name of the ship and of its owner, as well as the domicile of the master, which is to be duly particularized. Prize courts formerly condemned all ships built in the country of the enemy, and ^purchased by neutrals in the time of war, without admitting any excuse in justification. The "armed neutrality" endeavored to put an end to this practice, though the different governments did not come to an agreement, without a long discussion as to the alterations which should be introduced into the maritime law on this subject. The points in dispute, however, were at last settled, by empowering the neutral to order ships to be built in the country of an enemy on his own account, or to purchase those already built, and the belligerent was bound to admit, as conclusive proof, the bill of sale. To this was added that the subject of an enemy who had been naturalized, or who was employed in the service of a neutral Power, should enjoy the rights of a neutral.-'' 3. With respect to the manner of conducting legal proceedings in ^Martens, Merkw. Falle, vol. ii, pp. 35-8. Here also we may refer to the treaties of Russia with Denmark, and of the United States with Holland (1782), of Russia with Austria (1785), also with France, the kingdom of both the Sicilies and Portugal (1787), and of Prussia with the United States of America. Martens, Recueil, vol. iv, pp. 72, 196, 229, 315. ^See particularly treaties of United States with Holland* (1782), with Prussia (1785), and of England with France (1786). ^See treaties mentioned in notes, pp. 64, 65. Tn the treaty between England and France (1786) we find the following rules relating to Prize Courts. "Si quelque navire niarchand se trouvait depourvu de ses lettres de mer ou de certifi- cat, il pourra etre examine par le juge competent, de fagon cependant que par d'autres indices et documents il se tronve qu'il appartienne veritablement aux sujets de I'un des dits souverains, et qu'il ne contienne aucune marchandise destinee pour I'ennemi, il ne devra point etre confisque mais sera relache avec sa charge." EXTRACTS FROM WORKS ON INTERNATIONAL LAW 19 prize cases, the treaties of 1783-93 contained but few rules; they only require that cases between privateers and neutrals should be settled impartially, without delay, and in conformity with international justice. Shouldithe judgment be considered unjust or oppressive, diplomatic agents are entitled to intervene in behalf of their fellow-countrymen, and to bring the case before the Court of Appeal.' A privateer, having captured a neutral ship without sufficient grounds, is held liable to damages to the injured party; but unfortunately the amount of com- pensation is nowhere determined in treaties ; Holland and the United States alone have laid down carefully defined rules on the subject, namely, that the privateers shall repay all the legal expenses, and a percentage for lucrum cessans to the owner, and all persons who may suffer from the illegal capture.^ All the above-mentioned treaties are imbued, so to say, with one and the' same spirit, having a tendency to lessen the cruelties of maritime war, to put an end to the illegal plun- der of neutrals by privateers, and to mitigate the harsh decrees of prize courts. It is remarkable that the authors of the "armed neu- trality," even when belligerents, adhered to their principles. As an instance we may cite the ordonnance of the Empress Catharine on privateers (1787), issued on the occasion of the war with Turkey, which, being in perfect conformity with the declaration of the Empress in 1780, is, according to the opinion of Hautefeuille, one of the most liberal decrees ever published by a belligerent. The Empress pre- scribed to privateers the courtesy due to neutrals, and greatly restricted the right of visitation, confining it to particular seas.** Sweden in the iln addition to the treaties already cited, reference may be made to that between Denmark and Genoa (1789), in which the influence of the "armed neutrality" is apparent. Martens, Recueil, vol. iv, p. 438. Denmark and Genoa imposed upon their consuls the duty of defending neutrals in the prize court, and appointed advocates for the same purpose ; it was also agreed, when the evidence of neutrals and captors was conflicting, to give the preference to the former, "parceque I'interet du capteur doit toujours rendre ses accusations suspectes." This remarkable rule, however, does not occur in other treaties. 2By the clauses of this treaty the rights of neutral merchants in the prize courts are fully secured. Martens is perfectly right in . observing, that neutral merchants can not be considered as compensated by the mere payment for the cargo plundered and injured, but are also fully entitled to an indemnity for what might have been gained, if the vessel had in due course reached its place of destination" (tecrMW cessans). Essai, s. 30, p. 95. Other treaties abrogate some unreasonable contributions imposed on neutrals, as, for example, fees or other duties. Martens also gives a full account of the conventions relating to prize jurisdiction of that time, and of the decrees on that subject. ^Martens, Recueil, 336. However it is to be observed that in that war the Greeks, and not native subjects of Russia, received letters of marque from the Empress. In the first war with Turkey (1767-74) Russia had not recourse to privateering. Martens, Recueil, vol. ii, pp. 32, 33 ; Essai_ p. 46, s. 9. 20 THE ARMED NEUTRALITY OF 1780 AND 1800 decree of 1788 also sanctioned the principles of the "armed neutrality," and conformed her prize jurisprudence thereto.^ The declaration, how- ever, of the court of St. Petersburgh, published at the end of the war with Sweden (May 6, 1789), was much more extraordinary, for therein the Elmpress promised the protection and the assistance of the Russian fleet to the merchants of all neutral nations." Thus the free- dom of neutral commerce became every year more prevalent in Europe, and naval wars were greatly mitigated. Some States found it even advantageous to put an end to privateering. The first attempt to that eilfect was made by the United States of America in a treaty with Prussia, in which also the right of seizure of war contraband was modified into that of preemption (droit dc preemption).^ The question of the abolition of privateering was subsequently taken up by France.* Unfortunately these humane projects were not destined to be carried into effect, for in 1793 there commenced in Europe a long revolu- tionary war, which threw all international relatibns into confusion, almost annihilated the political institutions of Europe, and shook to its foundation the very idea of neutrality. ^Martens, Recuell. vol. iv, pp. 394-410. In this decree Sweden admitted the immunity of the neutral flag, a,nd exempted from visitation ships proceeding under neutral convoy. Only in the definition of war contraband does the decree not altogether correspond with the declaration of 1780; for instance, it includes in the list of prohibited goods, besides arms and ammunition, money, but the Swedish king, in consequence of a protest from several powers, subsequently revoked this decree, and returned to the principles of the "armed neutrality." ^Martens, Recueil, vol. iv, p. 428. ^The treaty of 1785 was concluded by Franklin, the well-known opponent of privateering. In his opinion, this institution ought to be put an end to for the good of mankind and the maintenance of peace. The custom of plundering merchant ships is a remnant of piracy, it produces no benefit at all. At the commencement of a war, indeed, some rich ships may fall into the hands of the captors and be taken by surprise, but the enemy soon becomes more careful and protects the commerce of his subjects by strong convOys. Consequently in the course of war. as the number of privateers increases so does the value of the captures diminish. ♦In 1792, the French diplomatic agents were instructed to ascertain how far foreign nations were inclined to abolish privateering. Unfortunately the political circumstances of that time prevented any sympathy or cotjfidence being placed in the intentions of France. With the exception of the Hanseatic Towns (which made no use of privateers) not a single state of Europe responded to the question proposed. See Busch, 290, 3 ; Ortolan, Diplomatie de la Mer, vol. ii, p. 56 ; Cauchy, Du respect de la propriete prlvee sur Mt:r, annexes, N. 1-4. As to the United States, they answered the French communication favorably, though rather in a vague manner. ■EXTRACTS FROM WORKS ON INTERNATIONAL LAW 21 Additional Note by the Author Page 63 In a juridical work like the present, the "armed neutrality" is chiefly considered in its effects upon treaties and international customs ; as to the political events which led to its foundation they are recorded by some contemporaries of Catharine II. It would be long, and even use- less, to enumerate , here all the books and pamphlets which give or pretend to give information on the origin of this celebrated league. As the chief authorities upon the subject may be cited the memoirs of M.. Dohm {Denkwilrdigkeiten meiner Zeit, Hannover, 1814^15-18) ; Count de Goertz (Memoires sur la Neutralite armee, Basle, 1801, Paris, 1804), and Sir James Harris' (Lord Malmesbury) Diary, London, 1845. These diplomatists, though differing from each other in some details, look upon the whole affair nearly in the same light. According to their opinion, the declaration of 1780 arose out of a court intrigue, aimed at the influence of Prince Potemkin, the great favorite of the Empress, and had no other object than to ruin his political power. Catharine herself seemed to have been almost an involuntary agent in the hands of Count Panin, the minister of foreign affairs, with whom the scheme originated. The defense of neutral rights furnished this statesman with a good pretext for overthrowing his rival. By giving full credit to this testimony, and deriving all our information from the same source, it might be supposed that the authors of the "armed neutrality" hardly knew what they were about, and that they only became fully aware of the importance of their acts from subsequent events, and when almost the whole of Europe had acceded to the principles of 1780. Now all this story seems to us, if not a pure invention, at least a great misrepresentation of the facts. The truth is that the success of the Russian policy having excited great envy, the open and secret enemies of the "armed neutrality" had recourse to every kind of obloquy and literary abuse, in order to discredit it in the eyes of the world. Conse- quently the most absurd rumoi's, about the authors of the coalition as well as their motives, were circulated abroad, and have been repeated up to the present time. Plowever difficult it would be to refute these calumnies without access to the state archives, where the whole cor- respondence relating to the subject is deposited, we humbly submit to our readers the following considerations, which are founded upon docu- mentary evidence, or derived from Russian historians. The first circumstance to be noticed is, that the contention between Prince Potemkin and Count Panin had no such signification, with refer- ence to the "armed neutrality," as foreign diplomatists seemed to imagine. The principal question in dispute was the English alliance ; in fact, the first of these statesmen strongly recommended his sovereign to take part in the American war; the second, on the other hand, advised her to stand aloof from the great conflict, wherein she would 22 THE ARMED NEUTRALITY OF 1780 AND 1800 be no gainer, and might lose the advantage of being appealed to as an impartial mediator. As long as the Empress hesitated to avow her decision on the best course to be pursued, the opportunity for a neutral league was necessarily delayed. It may be also easily understood why the cabinet of St. Petersburgh kept all these proceedings a secret from the English minister, whose connections with Potemkin were probably as well known to Catharine as to the minister for foreign affairs. It must not be supposed, however, that the declaration of 1780 burst forth as the feat of a skilful courtier, devised to injure a rival. We have every reason to beheve that this act had been long in preparation, before the Empress found a favorable opportunity for offering it to Europe, as the most efficient measure against the violence of belligerents. Some diplomatic papers of that time, published from the state archives of St. Petersburgh a few years ago (see the Maritime Magazine, or the Morskoi Sbornik for 1859, Nos. 9-12), prove that the seizure of Rus- sian merchandise near Cadiz by Spanish cruisers was only the last of many grievances reported to Catharine by her ministry. From the very beginning of the war the atrocities of privateers induced the Russian Government to take serious measures for the protection of commerce. Thus in 1778, when American cruisers made their first appearance in the northern seas, the Empress gave orders that a squadron should be stationed near Archangel to convoy English traders. Soon afterwards Catharine represented to Denmark and Sweden the urgent necessity of common action against cruisers in the Baltic (Lettres du Comte Panin a M. Sacken, Charge d'Affaires a Copenhague, 16 Aoiit, 1778, et note du Comte Bernstorff, 28th Sept., 1778). It is remarkable, how- ever, that Count Panin, by recommending the Empress to declare in London and Paris her firm intention to close the entrance of the north- ern sea to all cruisers, prevented at that time all further proceedings against belligerents, and this declaration appeared to him quite suffi- cient for the purpose. In the confidential report addressed by the Count to Catharine, and approved by her on the 22d Dec, 1778, we observe that his intentions were then not so hostile to England as Sir James Harris expected. The dangers of a breach with Great Britain are therein set forth without reserve. The Russian minister submits to bis sovereign the future line of conduct to be adopted towards bellig- erents. In his opinion the question of neutral rights, being very intri- cate, great moderation and circumspection were requisite to be used in dealing with it. He strongly recommends that Russia should attend to her own interests, and avoid a close alliance with her Baltic neighbors upon that question. Thus a cooperation with Sweden appears to Count Panin not desirable for many reasons. "The Swedish policy of defend- ing neutral rights," says he, "may cause us great difficulties, and involve our government in a disastrous war with the greatest maritime Power of Europe.'' Accordingly, when the cabinet of Stockholm in 1779 made the first proposals for a treaty to that effect, they were declined by Catharine. In short, the documents we have cited here give us no indication whatever that Count Panin was the real author, of the EXTRACTS FROM WORKS ON INTERNATIONAL LAW 23 "anned neutrality." On the contrary, the spirit of the declaration of 1780 seems not to be in accordance with his former views as well as with his general conduct as minister for foreign affairs. We are more inclined to think that the new scheme of neutral policy was originally devised by the Empress herself. The first precedent for it she might have found in the convention of 1759 mentioned before. It must be added that her various reading and intercourse with foreign diplo- matists made her better prepared to conduct the foreign affairs of Rus- sia, according to her own enlightened views, than, like some other sov- ereigns, to follow the advice of her council. In fact, the political talents and literary accomphshments of Catharine are so well known, that they afford sufficient grounds for our adhering to that opinion. Many important state papers were the production of her mind and pen. The authenticity of her correspondence with Voltaire is undoubted, and was never disputed. The same may be said of the "General Instruction for the Government of the Empire." This monument of the legisla- tive wisdom of the Empress, having been translated into foreign lan- guages, is as well known in Western Europe as in Russia. But the most improbable part of the story about the origin of the "armed neutrahty" is that Catharine when signing the declaration did not un- derstand its meaning. Whatever her faults might have been, she was perfectly able to appreciate the consequences of her political acts. It must not be forgotten that Sir James Harris puts into the mouth of one of his confidants the following remarks upon this new plan for the defense of neutral rights : "the declaration is the child of the Empress' own brain." The five articles were sent in the rough draft to Count Panin, who made no addition to the original ; see Lord Maimesbury's Diary, vol. i, p. 266. The Count himself, who very soon fell into dis- grace, is reported to have abjured all participation in devising the prin- ciples of 1780. When questioned upon this point he once said, "they who think that anybody suggested to the Empress the idea of a neu- tral league, or has now power enough to put it out of her head, are greatly mistaken." La Cour de Russie, il y a cent ans, Berlin, 1858, p. 253. All these facts seem rather to corroborate our views than other- wise. However it may be, we sincerely hope that the absurd fables about a court intrigue will fall to the ground, as soon as the historical truth, contained in the diplomatic documents, shall be fully brought to Hght. May this be done by future inquiries. Nothing but a careful study of the whole reign of Catharine can lead impartial men to safe conclusions upon the "armed neutrality." It will then be easily admitted that its origin is due as much to the natural course of events as to the liberal tendencies of the Russian Empress, and the philosophical spirit of her time. Period IV From 1793 to 1815 The continental governments having, as we have seen, agreed on the fundamental principles of prize jurisprudence, had entertained the idea 24 THE ARMED NEUTRALITY OF 1780 AND 1800 of drawing up a code of neutrality ; but these intentions, originating in- the declaration of 1780, were frustrated by the breaking out of the French Revolution. The political events which occurred in France, and afterwards in other countries, not only prevented the further ex- tension of the "armed neutrality," but afforded a pretext to the bellig- erents for resuming their former harsh proceedings. Consequently international treaties having been rescinded in the midst of the general commotion of Western Europe, Admiralty Courts began to oppress neutral merchants under the authority of the severe instructions of the belligerents, and privateers not only refused to acknowledge the immunity of the flag, but even disavowed the doctrine of the Consolato del Mare. In vain the northern Powers endeavored to form a perma- nent coalition for the protection of their commerce. The league they entered into (1800) only continued a few months, and failed of attain- ing the success which attended the first armed neutrality at the time of the American war. By the treaty of St. Petersburgh (1801) the allies even, made some concession to England, and considerably modified the principles of Catharine II. In general, during the French revolutionary wars, the power of the neutral governments diminished, and England returned to the system of the Middle Ages without opposition. At the end of the 18th century the decisions of Sir Wm. Scott (afterwards LordStowell), supported by the British navy, were enforced on neu- trals. The English Government, however, failed in attaining an absolute supremacy at sea. When Napoleon established the continental system (1806) Sir Wm. Scott was obliged to give up the rules of English practice, which he had invariably followed before. In the course of time the belligerents, attacking one another with retaliatory measures, proceeded to the last extremities, and declared neutral commerce unlaw- ful, and even criminal in their eyes. In this manner, the very idea of neutrality was, so to say, repudiated, and privateers as well as prize courts were converted into instruments of commercial inquisition. Such are the final results of this destructive period. In order to define them more accurately, we propose to direct our attention to facts^ and to lay before the reader: 1. The successive modifications of the principles of 1780. 2. The prize law of England and France under Sir Wm. Scott and Portalis. 3. The irregular character of privateering and prize proceedings at the period of the continental system. ^Compare generally Comte de Garden, Histoire de Traites, vol. vi, pp. 301-381 ; Wheaton, Histoire du Droit des Gens, vol. ii, pp. 13-106. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 25 The decree of the year 1792, according to which France renounced privateering, was not carried out. Having declared war against Great Britain the National Convention issued letters of marque, and accord- ingly many small vessels were dispatched for the purpose of plundering ships engaged in commerce. The former laws, however, respecting maritime prizes, and consequently the ordonnances of the year 1778, were confirmed, and privateers received instructions to respect the immunity of the flag.^ In the meantime, England not only refused to adopt the principles of the "armed neutrality," but skilfully took advantage of circumstances, in order to add to the severity of maritime warfare. Observing that the enemy suffered for want of provisions, she adopted what might be called a system of famine {systeme de famine), namely, entered into conventions- with the principal Powers of Europe in order to forbid the importation of corn and food into the French ports, and the carrying on of any intercourse with France. To counteract these measures the National Convention had recourse to retaliation, and by the decree of May 9th, 1793, enjoined cruisers and privateers to seize neutral vessels destined for England, laden with corn or provisions, or freighted with English merchandise. By this' decree English property was declared lawful prize, and even neutral cargo, subject to the right of preemption {droit de preemption) on the part of the French Govern- ment. These arbitrary rules were to remain in force until the interested Powers obtained from England a strict observance of the rights of neutrality. A few exceptions were made in favor of Denmark, Sweden, the United States O'f America, and other governments with which France had treaties" of commerce.^ For the purpose of meeting this ordonnance of the Convention, Eng- land extended still further the right of preemption, had recourse to a stricter system of blockade, and gave to privateers such instructions against neutrals as authorized them to stop with impunity all merchant vessels.* ^See the French ordonnances respecting privateers and prizes which were pub- lished at this time. Martens, Recueil, vol. v, pp. 376-400; vi, pp. 752-776; Lebeau, Nouveau Cnde des Prises, iv. (Paris, an IX.) ^Martens, Recueil, vol. v, pp. 4.39, 473, 483, 487. ^See Hautefeuille, vol. iii, pp. 276 et seq. ^Martens, Recueil, vol. v, pp. 596-605. Besides the Orders in CounciJ of the Stli June and 6th Nov. 1793, according to which England extended the right of pre- emption to all neutrals, and made lawful prize the produce of French colonies, privateers received also secret instructions very oppressive to general commerce. See Comte de Garden, vol. vi, pp. 324, 330. 26 THE ARMED NEUTRALITY OF 1780 AND 1800 The Danish commerce suffered particularly at this time. Up to the 19th August, 1793, 189 Danish vessels had been seized, and the com- pensation promised them for provisions was only very reluctantly paid, and after much delay. In vain Count Bernstorff attempted, in his celebrated memorial, to show to the cabinet of St. James, that the neutral Powers had nothing to do with the peculiar character of the war, and that, according to the principles of independence, they ought to enjoy undisturbed the advantages of commerce, in the midst of the conflict. To this the English Government replied that France had placed herself out of the pale of civilization; that no Power could be considered neutral with reference to her; and that all nations were bound to take part against her.^ Having exhausted in conference all power of persuasion, Denmark proceeded to arm her fleet, and concluded with Sweden an alliance for the protection of commerce (1794).^ About the same time the conduct of England provoked the resentment of the United States of America. Jefferson, the then secretary for foreign affairs, resisted energetically the violence of the privateers, and protested that the sale of agricultural produce was always considered free; that the belligerents were not entitled to extend the catalogue of contraband on their own authority, and added that the submission to that authority would amount to the surrendering into the hands of one nation the commerce of the world. Yielding to these remonstrances England consented to the appointment of a mixed commission, to examine the claims of American subjects to compensation ; as to the exertions of the United States in favor of the immunity of the neutral flag, they remained unsuccessful. By the treaty of 1794 both Powers reverted to the principles of the Consolato del Mare, and extended the catalogue of contraband to some articles ambigui usus} Having made such concessions to the cabinet of St. James, the United States had no right to expect that any greater regard should be shown to their flag by the other belligerents ; in fact, even before the conclusion of the treaty to which we have alluded, France had complained that the Americans permitted the English to seize and condemn as lawful prize the merchandise of their own subjects ; but when the news that the treaty of 1794 was signed reached Paris, the French Government im- ^See the Hiplomatic papers on this subject in Martens' Causes CeUhres, vol. ii, pp. 333-63 : Recueil, vol. v, pp. 569, 593. ^Martens, Recueil, vol. v, p. 606. ^Ibid. 640; Wheaton, Historic, vol. ii, pp. 39-47. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 27 mediately had recourse to reprisals, and adopted on their side towards the Americans the principles of the Consolato del Mare (Decree, March 2, 1796). In justification of which measures the Directory alleged the following reasons 1. According to the treaty of 1778, between France and the United States, it was laid down that all privileges granted by one of the contracting parties in favor of a third Power should belong to the other party. 2. That it would be unreasonable to expect them to observe the immunity of the flag with respect to those nations who renounce it of their own accord. After this decree the cabinet of Washington lost no time in breaking off commercial relations with France.^ Thus the example of one belligerent acted upon the other, and the old system of the Consolato del Mare took the place of more liberal princi- ples of neutral commerce. The obstinacy of the belligerents increased every year, and to all the terrors of unbridled privateering was added oppressive procedure in the prize courts. While Marriott, in England, was inclined to support all the abuses of belligerents,^ the French Government referred cases, relating to maritime prizes, to the ordinary courts of law ; and even conferred a prize jurisdiction on their consuls in neutral ports. The partiality of these new judges reached its greatest height at the end of the 18th century; they called upon neutral ships to produce all papers required by the French regulations, without paying any attention to the difference of European laws in that respect, and considered every ship, which had once belonged to the enemy, lawful prize, though she had afterwards been transferred to a neutral by a regular bill of sale.^ ^Wheaton, Histoire, vol. ii, pp. SO, 51 ; Martens, Recueil, vol. vii, p. 376. Friendly intercourse between France and the United States was reestablished by the Morfontaine Treaty in the year 1800. Martens, Recueil, vol. vii, p. 484. By this convention both parties reverted to the former liberal principles of neutrality, and the immunity of the neutral flag was again acknowledged. ^This judge was the great opponent of neutral commerce ; he did not consider the English customs sufficiently severe in checking it, and laid down in the year 1794 an extraordinary rule, according to which neutral nations were only permitted to carry their own produce, and not that of other countries. Jacobsen, Seerecht, i, preface. Marriott defended this arbitrary limitation of trade with the enemy, on the principles of the Navigation Act, which was then adopted by many states in imitation of England. ^Several French jiu-ists then, and afterwards some members of the Directory itself, protested against this unusual change introduced into prize practice (Lebeau, vol. iv, pp. 345, 403-415.) Portalis justly says, "Cetaitune grande erreur d'avoir attribue la connaissance des prises aux tribunaux ordinaires. Quand il s'agit de la justice des nations entre elles ; quand il s'agit des droits de la guerre et de leur execution ; quand il faut peser les traites, decider si une nation est amie ou neutre, on est etonne sans doute de voir intervenir une autre autorite 28 THE ARMED NEUTRALITY OF 1780 AND 1800 In the year 1798 the Directory published two new decrees, un- precedented in history ; one of them shortened prize proceedings to such a degree that there was not time enough for neutrals to bring forward their evidence; the other introduced a rule, whereby the character of the ship was to be determined by the cargo, that is, it declared lawful prize all neutral ships in which were found any article of English manufac- ture.^ By the introduction of these decrees, international trade ceased to have free course ; visitation degenerated into abusive search, and privateers became pirates. In answer to the question of neutral mer- chants, what was to be considered war contraband? the French pri- vateers replied, "all that is worth seizing" (tout ce qui vaut la peine d'etre pris). It appears, then, that the principles of the "armed neutrality'' were abandoned during these revolutionary wars. In fact, the United States of America, on the conclusion of a new treaty with Prussia in the year 1799, even proposed to abolish the immunity of the flag; or, at least, to postpone its acknowledgment to a more favorable time.^ Only Den- mark and Sweden adhered to the traditions of their policy, and, in order to protect their commerce, resumed the practice of making use of convoy. This proceeding was resisted on the part of Great Britain, and, in a short- time, produced a violent collision.^ Both the neutral powers were already on the point of yielding to the English Govern- ment, when they found an energetic supporter in the Emperor Paul I. Having been disgusted with the violent conduct of the belligerents, he published, August 16, 1800, a declaration for the purpose of re- que celle du gouvernement." According to the custom of all governments prize jurisdiction belongs to special courts, established for the purpose. Pritchard, Digest, vol. iii, pp. 163, 412 ; Wildman, Inistitutes, vol. ii, pp. 163, 361. The appointment of prize judges in neutral ports was also an anomaly contrary to international law; besides, the consuls, to whom the Directory gave jurisdiction in these cases, were, according to Busch, often part owners of the privateering vessels, and were consequently interested in the condemnation of the neutral merchant. Biisch, Das^Bestreben der Volker, S. 393. ^See Comte de Garden, vol. vi, pp. 335-337 ; Robinson, vi. Coll. 33, not. ,- Biisch, 332-336, 394-411; Jacobsen, Seerecht, 69; Martens, Recueil, vol. vi, p. 398. In a very short time after the publication of these decrees there were confiscated more than 300 neutral vessels, so that merchants did not dare to undertake a voyage, excepting under the protection of convoy. ^Wheaton, Histoire, vol. ii, pp. 55-76 ; Martens, Supplement, vol. ii, pp. 227. However the right of preemption of war contraband was confirmed in the new treaty. It includfes, also some liberal interpretations of prize law. See articles 14, 16, 21, 23. ^Martens, Erzdhl, vol. i, pp. 299, 302; ii, pp. 39-58; Wheaton, Histoire, vol. ii, pp. 76-83. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 29 establishing an armed' neutrality ; and, finding Denmark, Sweden and Prussia favorable to his views, signed, in conjunction with them, on the 4/16 December, 1800, the memorable convention, in which, in addi- tion to the principles of the Empress Catharine II, there were laid down the following rules, as being in conformity with international law. 1 . Blockade is only reputed to be broken by neutrals when, disregard- ing the warning of the belligerent, they enter the blockaded port by force or fraud. 2. Neutrals under convoy are free from visitation ; the declaration of the officer in command of the convoy to be considered sufficient.^ Unfortunately the second aiined neutrality was not so successful as might have been expected. The northern coalition did not last long, and was put an end to by the bombardment of Copenhagen and the death of the Emperor Paul.^ On the succession of Alexander I to the throne of Russia new pros- pects of peace opened to the world. He proposed to the cabinet of St. James to hold a conference, which should lay down the fundamental principles of neutral commerce ; he also promised to invite the Danish and Swedish Governments to accede to them, and, in fact, on the 5/17 June, 1801, there was signed between Russia and England anew conven- tion, in which both parties made some important mutual concessions ; the greater part however of the regulations of the armed neutrality, such as the definition of war contraband and the free access of neutral merchants tO' the ports of the belligerent, remained unaltered. With respect to colonial trade, European merchants were placed on an equal footing with the subjects of the United States of America, that is, obtained the right to import from the enemy's colonies goods for their own use. But the change in the definition of blockade, though de- pendent on one word (or instead of and), seemed to be more important.* ipor the acts relating to the second armed neutralit}', see Martens, Supplement, vol. ii, pp. 344-486 ; and Baron Carl Martens, Nouvelles Causes celebres, Leipzig- 1843, vol. ii, pp. 176-272; see also Miloutine, Hist, of War of 1799, a work of the present Russian secretary of war at St. Petersburgh, published in the Russian language. He also enters into the history of the second armed neutrality. 20f treaties concluded under the second armed neutrality we can only refer to that between Russia and Sweden, 1st March, 1801. Martens, Supplement, vol. ii, p. 307. 3Lord Grenville himself says in his speech that in the armed neutrality it was required that blockading ships should be in sufficient number, "and stand near the port;" on the contrary, in the convention of 1801 this and was changed into or. Lord Grenville seems to attach much importance to this alteration, and to the manner in which the treaty was drawn up. V. Subst. of Speech, -Nov. 12, 1801, p. 82-3, Lond. 1802. 30 THE ARMED NEUTRALITY OF 1780 AND 1800 Ships under convoy were only exempted from the visitation of priva- teers. The principle that the flag covers the cargo (le pavilion couvre la cargaison) was also rescinded on the condition that enemy produce and manufactures {marchandises du cru ou de fabrique de I'ennewii), purchased by neutral subjects and laden as their own property, should be free. As additional articles to the convention some clauses relating to irregularities and defects in prize practice were introduced. 1. The contracting parties gave diplomatic agents the right of protesting against unjust decisions, and of bringing the case before the highest Court of Appeal. 2. Without the consent of the Admiralty judge it was forbidden to unlade and sell the property in dispute prior to its being adjudged lawful prize. 3. If a ship were arrested without suffi- cient cause it was stipulated that for every day's delay compensation should be paid by the privateer.^ In the following year the St. Petersburg convention was after some- hesitation accepted by Sweden and Denmark, but they gained little advantage by this vacillating policy, as Great Britain paid no attention to the observance of the provisos she had entered into, and finding the convention too unfavorable to her interests used every effort to interpret it according to her own views. ^ Sweden soon afterwards, yielding to the demands of the cabinet of St. James, signed a new convention with England in 1803, wherein the catalogue of war contraband was con- siderably enlarged.^ ^The convention of 1801 is inserted in Martens. ^See a curious pamphlet by Jacobsen, "Versuch eines Commentars su den Russischen Beschwerden iiber die Beeintrachtigung des Russischen Handels durch England." Altoona, 1808. In illustration of the manner in which England interpreted the convention of 1801, we quote from this work the following facts. When the members of the opposition, Lords Grenville and Howick, observed in parliament that the convention abandoned the colonial and coasting trade to neutrals, the minister, Lord Sidraouth, answered, that this was not evident from the words of the treaty, and that the contracting parties might enter into a new arrangement about it. As little foundation was there for the statement of the English ministry, that the neutral powers had shown their confidence in the impartiality of the British Admiralty Court, by declining to insist upon any conditions in favor of their own subjects; this is indeed refuted by the supple- mentary articles of the treaty. Sir William Scott also asserted that the conven- tion was only applicable to Russian ships, and not to Russian produce found on board neutral ships. In that case he followed the precedents of English practice ; according to this interpretation, hemp, masts and some other articles, which according to the treaty were not reputed to be contraband, were pronounced by the English judge to be lawful prize, and that even in those cases in which the legality of the neutral commerce did not admit of doubt. Complaints were also made of delay in the proceedings, and that cases which might have been disposed of in six months were protracted by the court for two or three years. ^Martens, Supplement, vol. iii, p. S23. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 31 KLEEN: Lois et Usages de la Neutralite. Paris, 1898. I Rikard Kleen. Scandinavian publicist ; born in 1841 ; studied at the University of Upsala; attache of the ininistrj' of justice in 1863; attache of the legation of Sweden and Norway at Turin, and later at Florence ; chief of division of min- istry of foreign affairs at Stockholm ; secretary of legation at Vienna ; member of the Institute of International Law; member of the International Sanitary Conference at Vienna. His publications include Droit naturel (Naturrdtt), 5 volumes, 1883-?, Sur la corJrebande de guerre {Om Krigskontraband), 1 volume, 1888, and Lois sur la neutralite (Neittralitetens Lagar), 2 volumes, 1889-91. Volume I, page 20. — In reference to the question of neutrality the year 1780 ushered in a new era which may be regarded as the close of the reign of the Consolato del Mare. It was a period of transition to the new maritime law introduced by the Paris Congress of 1856. This period is characterized by the endeavors of the States at peace to put an end to the uncertainty regarding the rights and the duties of neutrals, to fill in the gaps of the regulation of these rights and duties and to form a union for the purpose of opposing the arbitrary way in which the greatest maritime Power was treating the neutral nations. It was at this time that there manifested itself that remark- able movanent against the oppression of a despotic marine, a move- ment whose initiative was due to the alliance of the Northern Powers, but which was also strongly supported by the insurrection of the great transatlantic colonies against British domination. The American war of independence was a struggle like unto that of the Baltic countries against their common oppressor. The colonies were forced, by reason of the identity of interest and feelings, to take sides with the neutrals against England. During the North American war of independence, discontent awak- ened by the exacting pretensions of the great maritime Powers, burst out at last, and the general sentiments of insecurity produced a violent reaction. The less powerful States realized that they had to form a union, and to be the better able to oppose abuses, the first condition was to reach an understanding with regard to the essential points As a result there was formed in 1780 the famous so-called "Armed Neutrality" between Russia, Sweden and Denmark, whose object it 32 THE ARMED NEUTRALITY OF 1780 AND 1800 was not merely to determine the just and reasonable principles of neutrality and to rally round them all other governments, but to defend also by armed force any attack upon their rights. The Russian Government which was joined in this force by the Scandinavian States, formulated the new rules. These rules were part of a declaration which on February 28, 1780, was transmitted by the St. Petersburg ministry, in the first place to the great western mari- time Powers, England, France and Spain, and later to the rest. The following five points appeared therein as the future principles of neutrality : 1. Neutral vessels may freely navigate from port to port and along the coasts belonging to the belligerent States without being detained on their course ; 2. Enemy merchandise is free under the neutral flag, excepting war contraband : 3. To determine what shall be regarded as war contraband, refer- ence is made to articles 10 and 11 of the treaty concluded on June 20, 1766, between Russia and England, which treaty shall have obligatory force with regard to all the belligerents.^ 4. No port shall be regarded as blockaded so long as there is no real and effective danger in entering the same, that is to say, so long as it is not surrounded, by the Power which pretends to forbid entrance to it, by means of stationary and sufficiently nearby vessels.^ 5. These principles are to serve as rules in the procedures and deci- sions of the Prize Tribunals.^ As may be judged from this, the declaration does not in its inte- grality and in clear terms establish the principles set down in the Utrecht treaty that the quality of the vessel determines the quality of the cargo. To the second proposition that "enemy merchandise is free under neutral flag" there is not joined the correlative disposition that "neutral merchandise is seizable under enemy flag." This was ^The contraband articles specified in this treaty are almost all (excepting saltpeter, sulphur, saddles and bridles) of such a nature as fits them specially to war use. The list marks therefore a step in advance. It was furthermore agreed that when a neutral vessel was transporting such articles, such quantity of war ammunition as was deemed necessary for the needs of the vessel itself should be regarded a.s free and exempt from confiscation. ^This rule was a protest against fictitious blockades. 8An additional article declares that the Baltic Sea was to be regarded as closed waters v.'ithin which acts of ho.stility were forbidden. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 33 also the first time when the said two propositions which had hitherto been usually joined, were no longer found side by side. On the other hand, as nothing expresses the intention of separating them, it was concluded that the armed neutrality probably meant purely and simply to renew the Utrecht principle in this regard. There is no lack of good reasons in support of this interpretation. It is a fact that in the time when the armed neutrality was established, the general practice on the seas was to leave property free when under the neutral flag, with the reservation of the right to seize in the contrary case neutral prop- erty under enemy flag. But, if it had been the intention of doing away with this last mentioned right, though its presumed condition was given form of law, mere reflection would have required an explicit stipulation upon this point. Moreover, peace treaties and other re- markable conventions that have been concluded since 1780 contain anew the two propositions side by side, in exact conformity with the Utrecht rule. The declaration was transmitted to the neutral governments with the invitation that they adhere thereto. This was done successively apart from Sweden and Denmark which belonged to the original alliance — by Holland, Prussia, Austria, Portugal, the Two Sicilies, and lastly by France, Spain and the United States of America. The contracting powers have all accepted the principles of armed neutrality with the obligation not merely to observe and respect these principles, but also to equip and maintain a fleet to uphold and defend them by acting in concert and in common. Furthermore, within this more enlarged league, Russia and Den- mark form together a more intimate union under the name of "Allies of the armed neutrality." These three Powers agreed to defend their cause in common and jointly, so that an attack directed against any one of them through some violation of the right of neutrals would bring simultaneously the other two to its defense. As could be foreseen, England alone refused her adhesion to this act which was intended to open up a new phase in the regulation of neutrality by establishing principles that should gradually decrease the exclusive domination of the greatest maritime power. The British ministry explained its refusal on the ground of political maxims which it had hitherto constantly followed, and upon its conventions which, as regards treatment on the seas on the part of the British marine, granted to certain privileged States immunities which the other States did not 34 THE ARMED NEUTRALITY OF 1780 AND 1800 enjoy. And to these latter England would for nothing in the world concede the advantage that the neutral flag should protect enemy property. England alone was however not capable of halting the current of ideas of a neutrality more in conformity with right, ideas upheld by many other nations and even by the new opinion which already began to appear everywhere on the horizon. The modern spirit demanded an international, a distributive and equal justice for all the States, and simplicity, frankness, and clarity in the laws. The principles proposed by the armed neutrality had no other object in view than that of sub- stituting fixed rules in the place of the monetary arbitrariness, an objective justice in the place of the whim of the stronger, the precepts of natural law in the place of the shrewdness of an ambitious policy, and at least a relative security for peaceful navigation in the place of maritime brigandage. In the presence of these irrefutable facts, and in the face of the unity and harmony between the States favorable to this reform, the British Government, while avoiding a real adhesion thereto, was nevertheless compelled to practise a little more moderation in the application of its former rigorous usages. It protested in vague terms, especially against the maxim "the flag protects the merchan- dise." But it made more than one exception in its favor; it issued instructions to its cruisers enjoining them to proceed with greater prudence toward the neutrals, and to the latter it opened the commerce with the Mediterranean. The principles of the "armed neutrality" acquired in this manner, if not an exclusive and absolute, at least a decisive, influence over the interpretation of the rights and duties of neutrals during the following period which extended up to the time of the Crimean war. Not all, of course, had been gained by the Declaration of 1780. It provided no protection for neutral property under the enemy flag and did not restrict the right of search. But it put an end to a state of incertitude, of insecurity, and of confusion ivhich, for lack of precise laws accepted by the majority of the States, had controlled ever since the time of the Consolato del Mare. Every nation had followed its own special rule, according to the intention of the moment : not a,ny rule had been estab- lished on juridical bases as a result of serious negotiations between a considerable number of governments. Though incomplete and defec- tive, the principles of the "armed neutrality" were at least formulated in an exact manner and had been recognized and adopted by almost all the powers of Europe and of America. Faithfully they expressed EXTRACTS FROM WORKS ON INTERNATIONAL LAW 35 the reasons of an international conscience; the motive forces back of them were peace and justice. And lastly, they restricted the preten- sions of a single. Power of exercising a universal dictatorship unaccom- panied by legal sanction and exclusively based upon might. The accord and harmony between the other States, their understanding officially declared and clearly expressed, their demands based upon equity and humanity presented a reassuring guarantee theretofore unknown. It is true that its application could only be of a restricted kind in view of the fact that no serious Conflict arising from the divergence of views between England and the States of the League gave to the latter, during the period in question, the opportunity of setting forth the practical consequences of the Declaration. The great significance of the diplomatic act of the year 1780 is rather to be found in the fact that it constitutes a principle and sets forth the expression of a new and more enlightened spirit. Attention had been attracted to the need of a more effective general protection of the right of neutrality, and also to the powerful aid which the reformation of this right could find in the public opinion of the civilized world, because almost all the nations had shown themselves ready to defend more energetically than ever before the interests of the neutrals. After this solemn and collect- ive declaration it was felt everywhere that soon there would rule a better legislation over the conditions in the countries not engaged in war while war was being waged elsewhere, and that the world was on the eve of a new and more liberal solution of the so important questions of the protection of the neutrals against the encroachments of the belligerents. The time of the great reformation in the matter of neu- trality may therefore be regarded as having begun with the declaration of 1780, even though the reform itself was to await for some time its subsequent development, and though it had to suffer from the interrur- tions brought about as the result of abnormal circumstances. One of these interruptions, the most deplorable and the most violent which threw Europe once more into a state of anarchy which one had been entitled to believe had long since disappeared, was the result of the wars of the great revolution which broke out soon afterward. The violations of the law of neutrality and the abuses of the laws of war reached then such a stage that it would hardly have been possible to maintain the modest reform which had been introduced, and even less to continue to develop the same, France and England surpassed one another in reactionary manifestoes addressed to the rest of Europe 36 THE ARMED NEUTRALITY OF 178'0 AND 1800 concerning the situation of the neutrals, and the arbitrary decrees of the belhgerents reduced these to a state of almost illimited dependency. Each of the two western rivals claimed the right to close the entire continent to its adversary. The principles not only of armed neutrality, but of almost the entire law of neutrality hitherto known and accepted, were disregarded and trampled underfoot. One of the first conse- quences of this violent reaction was the fact that England could again apply her antiquated principles and compel the weaker States to tolerate ■ them, as long as they were not prevented in this by the terrorism from the opposite side. The rule that the flag protects the merchandise was in fact abolished and as the neutrals could no longer act in common accord, — some being dominated by the conqueror, and others hesitating as to the decision they should take in the face of such overwhelming evidence, while still others were compelled to conclude treaties with England in order to be able to resist the threats of France, — the bond which had held together the members of the league of 1780 was broken, and the union which had made for the unity and the success of other reformatory labors was sundered. They deserted, one after the other, or they avoided coming to a decision, at all events, they did not endeavor to realize their promise to "defend the right of the neu- trals by armed force." Even at the last moment, when war broke out between revolutionary France and the Allied Powers, the Scandinavian States tried to strengtherl the bonds by uniting on the basis of the compact of 1780. But Russia failed in this instance for she felt compelled to accede to the coalition of which England was the soul. And in fear of divid- ing the forces that were to be opposed to France, the other members of the league of 1780 dared not stand apart from England. Every legal scruple was put aside in the presence of the pretended political necessity of crushing, or at least of throwing back Republican France, which was regarded as dangerous for the peace of Europe. It soon became a fashionable tactic in the policy of sea dictatorship to excuse every violation of the right of neutrals with the pretext that at any price, even at the price of justice and of equity in international rela- tions, it was necessary to prevent the domination of the French Re- public. On the other hand, the French Republic put forth analogous pretexts to checkmate Britannic preponderance through violations of the law of neutrality. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 37 Even at the time of the national Convention, the leading powers of the coalition, especially England, had tried to force the Scandinavian States to adopt with regard to France a procedure similar to others, and to prevent their commerce with French ports. They forbade the neutrals to" transport thither, not only articles of war contraband, but even articles of prime necessity, such as wheat, food and other like prodiice. English privateers seized the vessels which carried on the transportation of such articles to France. Fictitious blockades were declared, and vessels which did not observe them were captured. Those vessels bringing produce from the French colonies were likewise de- clared legitimate prize. Further than that, and independently of its nationality and cargo, England declared legitimate prize any vessel sailing lo or from a French port. France, on the other hand, threatened by famine, resorted to violent reprisals. In 1793 she repudiated the principles of 1780 by reestablishing the ancient prize rules which had pievailed before the reign of Louis XV. In virtue of the decrees of the national Convention French privateers captured not only enemy prop- erty under the neutral flag, but even any vessel transporting merchan- dise to England manufactured by or belonging to the enemy, or neces- saries of life belonging to neutrals but destined for the enemy. Accord- ing to a law of 1798, the neutral vessel was not to be treated according to the flag she flew but according to her cargo, and in consequence was to be captured if she transported enemy property, and thus especially any object coming from England or from the English colonies was to be regarded as enemy property. Fortunately, these reciprocal violations of the law of neutrality lasted not longer than the burst of passions loosened by the wars of the Revolution, a proof, moreover, that the oppressed law had never ceased to enjoy a certain degree of respect within the innermost of the consciences and that these continued to uphold the fundamental princi- ples, in spite of the abuses and of the accidental transgressions of this time in almost the whole of Europe is found in the fact that since the encroachments upon the rights of the neutrals began under the national Convention, the Allied Powers deemed it necessary to lay before the neutral states which still insisted upon their rights, such as the United States of America, and the Scandinavian States in Europe, excuses with regard to the irregularities that had been commended, by alleging "the exceptional situation" created by the events which took place in 38 THE ARMED NEUTRALITY OF 1780 AND 1800 France and which were of an essential transitory nature. England went so far as to mitigate some of her measures of violence, by incur- ring exceptional immunities to certain neutral states which desired to remain at peace. ^ The compact of 1780 was broken and its principles no' longer ob- served, since Russia had become the ally of England and in consequence had been compelled to abandon the new laws, so embarrassing to a maritime supremacy. Hence, when a few years later, the Russian Government again separated from England and her allies, and recov- ered its freedom of action, its first thought was to reconstruct the armed neutrality. The alliance between Russia, Sweden and Denmark was therefore renewed in December 16, 1800, in the name of "second armed neutrality" ; and Prussia adhered to it. They returned to the prmciples of 1780. These principles were not merely reestablished but considerably extended and increased in a liberal and equitable sense. To the five points of the first armed neutrality, the following two were added : 1. A neutral vessel is not guilty of violating the blockade until it has been warned by a war-ship or by a corsair of the blockading Power and it attempts nevertheless to run the blockade either by ruse or by force. 2. When neutral merchant ships are escorted by a neutral warship, they may not be searched, and the declaration of the officer in command of the convoy that there is no war contraband on board shall be deemed sufficient. The British ministry neglected no effort to break this new bond of neutrality, or at least to annul its consequences, and it was successful. After long negotiations, it again brought about the separation of Russia from her allies; and on June 17, 1801, it concluded with the St. Petersburg ministry a convention by which the Russian Govern- ment again abandoned the essential and most important principles of the compacts of 1780 and 1800, especially the one in virtue of which the neutral flag was to protect the enemy merchandise, but England was also forced to make some concessions ; so that the armed neutral- ity, without which these concessions could not have been obtained, has not been wholly unfruitful. Forsaken by Russia the Scandinavian States remained isolated and no longer able to maintain their resistance. ilnstructions issued in 1793 to English cruisers forbid the latter to seize Scandinavian vessels for violations of the blockade, unless in spite of the warning given them, they had again tried to enter the blockaded region. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 39 they felt compelled to accede to the Anglo-Russian Convention ( 1801- 1802). Prussia alone absolutely refused her aid to these recantation principles solemnly published. But England made wide use of her triumph to induce several other States, one after another, to conclude with her special conventions on the basis of the principles of 1801, which principles, in coftsequence, became soon afterwards predominant. It may be said that they have been the law of a large part of Europe during the first half of our century, that is to say^ in a general way for England and for those which had contracted with her, but also for other states during a certain period and as long as they did not depart therefrom, until at the time of the Crimean war, the le_gislation upon this matter was again enlarged. The rules of 1801 deserve there- fore a mention, although secondary in importance beside those of 1780. They may be summarized in the following articles : 1. Neutral vessels may freely sail to the ports and along the coasts of the belligerent nations. 2. Merchandise on board these vessels is free excepting the so-called war contraband, and merchandise belonging to the enemy; merchan- dise of enemy origin but purchased and transported by a neutral must in all cases enjoy the benefits acquired by the neutral flag. 3. To remove all doubt as to the nature of articles which constitute war contraband, the contracting parties refer to the treaty of commerce concluded between them on February 21, 1797.^ 4. A port is regarded as blockaded only in case its entrance ofifers real danger by reason of the number of warships directed to inhibit access to it. 5. Legal action against neutral vessels seized because of founded suspicions or of evidently guilty acts must be taken without delay, and the mode of procedure of this action shall be uniform and strictly legal. Regarding the search of convoyed vessels, the stipulations of the convention may be summed up as follows : 1. The right of searching merchant ships, owned by subjects of one of the contracting powers and sailing under the escort of a war vessel of their nation, belongs exclusively to the vessels of like rank of the belligerent State and may not be exercised by corsairs. lAccording to this treaty- articles of contraband were approximately limited to those which had been specified in the previous treaty between the same parties of June 20 1766— see above, page 21—, that is to say, few exceptions to those articles especially adapted to war uses. This point constitutes therefore a concession of the neutrals. 40 THE ARMED NEUTRALITY OF 1780 AND 1800 2. Owners of vessels intending to sail in convoy under the escort of a war vessel must, before being given their ship's papers, present their passports and their sea certificates in the form determined by the treaty to the chief of the convoy. 3. When a convoy is met by a war vessel of the belligerent parties, the latter, unless weather conditions or circumstances prevent, must hold herself beyond cannon range and send a longboat to the convoying vessel to proceed in common to the examination of the papers and certificates showing that the one is authorized to escort such or such other vessels with this or that cargo from port A to port B, and that the other really belongs to the royal (imperial) marine of the nation whose flag she flies. 4. Once the regularity of the papers is established, any legitimate suspicion must be regarded as removed. In the contrary case, and after having been properly and duly requested thereto by the belliger- ent, the chief of the convoy must stop long enough to permit searching the convoyed vessels. If after examination of the documents the searcher believes that he has good reasons to detain one or several convoyed vessels, article 5 authorizes him to hand the captain and crew to the chief of the escort who, on- his part, may put on board the detained vessels an officer to assist in the investigation, which must take place, without delay, in the nearest port of the belligerent, in the presence of the seized vessel. Article 6 forbids the chief of the convoy to oppose by force of arms any acts ordered by the belligerent commander. If, on the other hand, the latter abuses the power thus conferred upon him, or detains a vessel without sufficient reason, the offended owners of the vessel or cargo must be indemnified. As appears from this summary, the 1801 Convention, which evidently sought to conciliate England's pretensions and the needs of the union of the North, deviated widely from the principles of the second armed neutrality; and England's pretensions won the day on all principal matters. According to the convention enemy property under neutral flag could again be captured. A violation of the blockade made it no longer a condition that the line he passed through ruse or through force after previous warning had been given by a vessel of the blockading Power of the state of blockade in the very place of the operation — a condition which would have guaranteed an effective blockade ; nor was the fixed stationing of the blockading vessels prescribed. Finally, the search of convoyed merchant ships was permitted. Now, these three EXTRACTS FROM WORKS ON INTERNATIONAL LAW 41 points which had been the main matter of England's pretensions and because of which England had protested against the treaty of the armed neutrality, constitute so many retrograde steps in the regulation of the rights of neutrals ; and they carried with them the abrogation of the essentials of the liberal principles proclaimed by the league of 1780-1800, to wit : The inviolability of the neutral flag, the effective quality of blockades, and the abolition of the search of convoys. On the other hand, the convention of 1801 contained, no doubt, besides these restrictions, various other provisions favorable to neutral- ity. It stipulated explicitly the freedom of traffic between the open parts of a belligerent and a neutral, and removed the unjust prohibitions to any commerce with the enemy which were so frequently decreed during the wars of the Revolution. It also limited in a reasonable way the idea of war contraband. And finally, to make the blockade legal, it required a certain number of war vessels which, though the number thereof was left to the subjective appreciation of the beUigerents, was nevertheless calculated to exclude purely fictitious blockades. In princi- ple the latter were at least disapproved of. Thanks to these rather liberal provisions, the convention might have been regarded as a slight step in advance toward the development of neutrality, if it had been loyally executed and scrupulously applied. It was certainly the first international act of general interest through which England modified somewhat her ancient pretentions of dictator- ship without any regard whatever for the opinions of the other nations. For the first time, the British Government made important concessions to the neutrals ; she bound herself by explicitly clear conventional dis- positions and to a certain degree broke with her traditional system, followed by all her ministries, in avoiding precise stipulations in order to avail herself of the obscurity and ambiguity of expressions according to her purposes which varied with circumstances, and in order to be able to apply the rules in partial manner toward such or such another people^ and in more considerate manner toward this or that nation. It is true that the convention was far behind the armed neutrality with regard to the protection of the right of the neutrals. Nevertheless, it offered at least the advantage, not only of constituting a compact between two adverse parties which theretofore had not been able to reach an understanding, but even of binding by definite laws the great- est maritime power which theretofore had not allowed herself to be bound by anything. 42 THE ARMED NEUTRALITY OE 1780 AND 1800 Unfortunately, this advantage of the convention was considerably reduced by the fact that, in large part, it remained a dead letter. England realized ere long that she had granted too much, while the neutrals thought that she had granted too little. Their right had indeed been sacrificed, to her. Both parties were dissatisfied with the new order of things, and by all means available they sought to liberate themselves. Ere long, the opportunity to do so presented itself. MANNING: Commentaries on the Law of Nations. London, 1839. William Oke Manning. English publicist ; born in 1809 ; died in 1878. In 1839 he published Commentaries on the Law of Nations. There was then no English treatise on the subject (though there were two by Americans), and Manning's book was noticeable for its historical method, its appreciation of the combination of the ethical and customary elenients in international law, as well as for the exactness of its reasoning and its artistic completeness. The book at first attracted little attention, but was gradually found useful by teachers, and was cited as an authority in the courts. The new edition, issued in 1875, was revised and enlarged by Professor Sheldon Amos, with a preface by Manning. Page 257. — The commencement of the Armed Neutrality of 1780, may be traced to a circular issued by the Russian court to different European powers, dated 28th February, 1780. This document, after setting forth the great tenderness which the Empress had herself evinced in regard to neutral commerce, and the vexations, on the other hand, which neutral commerce, especially Russian, had been subjected to during the existing war, went on to state that her Imperial IVfajesty felt called upon to take measures to maintain her own dignity and the welfare of her subjects; and that, to prevent future misunderstanding, she had determined to communicate the principles on which she pro- posed to act, which she did with the greater confidence, as these princi- ples were based on the primitive rights of nations, were such as every nation had a right to insist on, and were such as the belligerent states EXTRACTS FROM WORKS ON INTERNATIONAL LAW 43 could not invalidate without violating the laws of neutrality, and with- out disavowing the maxims which they themselves had adopted, espe- cially in dififerent treaties and public engagements. The principles referred to consisted of the following provisions : I. That neutral ships might freely trade from port to port, and upon the coasts of nalions at war. II. That the property of the subjects of belligerent powers should be free on board neutral ships, excepting goods that were contraband. III. That with regard to contraband goods, the Empress bound her- self by what was contained in the arts. X and XI of her treaty with Great Britain, extending these obligations to all belligerent powers. IV. That to determine what characterises a blockaded port, this term shall be confined to places where there is an evident danger in entering, from the arrangements of the power which is attacking, with vessels stationary and sufficiently close. V. That these principles shall serve for a rule in the proceedings and judgments on the legality of prizes. To support these principles, the Empress added that she had fitted out a considerable portion of her fleet, which she, nevertheless, trusted that the interests of her subjects, or the honour of her flag, would not render it necessary to employ.^ This Manifesto, with the second article of which we are at present alone concerned, was forwarded to different belligerent and neutral powers. In reply to this communication, France,^ Spain,^ and the United Provinces,* immediately expressed their concurrence in its provisions. But Great Britain never acquiesced in the pretensions of the Russian Memorial, and the reply of our court to the Russian communication stated, that "his Majesty hath acted towards friendly and neutral powers according to their own procedure respecting Great Britain, and conformably to the clearest principles generally acknowledged as the Laws of Nations, being the only law betiveen powers where no treaties subsist, and agreeably to the tenor of his different engagements with other powers, whose engagements have altered this primitive law, by mutual stipulations proportioned to the will and convenience of the iDe Martens, Recueil, vol. iii, pp. 158-160. ^Ibid. 162. ^Ibid. 164. *Ibid. 168. 44 THE ARMED NEUTRALITY OF 1780 AND 1800 contracting parties :" that precise orders had been given respecting the tlag and commerce of Russia, according to the Law of Nations and the tenor of our ti'eaty of commerce; that it was to be presumed that no irregularity would happen, but that otherwise redress would be afforded by our courts of Admiralty, judging according to the Law of Nations, "in so equitable a manner, that her Imperial Majesty shall be perfectly satisfied, and acknowledge a like spirit of justice which she herself possesses." ^ Negotiations subsequently took place between some of the Northern Powers, explanatory of the assistance that was to be aflforded in case the concurrence in an association should draw down an attack upon one of the confederates.'^ In July, 1780, Denmark, and afterwards Sweden, forwarded circulars to the courts of London, Paris, and Madrid, stating their intention to abide by the five articles of the Russian Manifesto, which were copied verbatim, with the exception of the alteration of the date of the respective treaties defining contra- band. In reply to these circulars France and Spain returned answers highly applauding the proceedings of the Northern courts, and stating their acquiescence in the provisions of the new arrangements.^ But Great Britain appealed to the faith' of treaties, of which the conduct of Denmark and Sweden was in direct violation. In the British Note to Denmark, dated 25th July, 1780, it was stated that the Danish commerce had always been treated by us in conformity with the treaties which had subsisted between the two nations for upwards of a century (the treaty of 1670 being still in full force), that "their reciprocal rights and duties were evidently traced by these solemn engagements, which would become illusory could they be changed otherwise than by mutual consent. They subsisted at the present moment in their full force, and, equally obligatory on each of the contracting powers, they formed an inviolable law for both." Our government had always followed their stipulations, and expected the same conduct from the court of Denmark.* In the same manner, in the British reply to the Note of Sweden, it was stated that the articles of our treaties with Sweden offered a direct answer to her novel pretentions. The twelfth art. of our treaty of iDe Martens, Rrcuril, vol. iii, 160, and Annual Recrister' for 1780, p. 115. 2For the notes between Rv.ssia and Sweden see De Martens, Rccueil, vol. iii, pp. 170-173, and Annual Register, pp. 1,18-120. ^De Martens, vol. iii, pp. 17^. 187. *md. 182. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 45 1661 was cited, wherein it is expressly stated that the goods of enemies shall not be concealed on board the ships of the other confederate; and that the goods of enemies found on board the ships of either confederate shall be made prize. But the goods of the subjects of the confederate shall be restored. Treaties, it was added, can not be altered, unless by the mutual consent of the contracting parties; they are equally obligatory on both, and the King would observe and main- tain them as a sacred and inviolable law.^ Appeal to the faith of treaties had, however, no effect on the conduct of these courts. Not that the obligation of these treaties was, or could be, denied. So far from it, these treaties were expressly cited by these courts themselves ; and, with what would be called impudence in private transactions, some of the articles of these treaties were ap- pealed to as still existing, by both Sweden and Denmark, while other articles of the same treaties were flagrantly violated at the same moment. Thus Denmark, in her treaty with Russia, stated in art. Ill, that she would abide by her treaty with Great Britain of 1670, for her definition of contraband between herself and England ;- yet, by this same treaty, provision was made to prevent the goods of enemies from being concealed on board the ^hips of friends. And in art. II of the treaty between Sweden and Russia, Sweden refers expressly to art. XI of her treaty of 1661, for her definition of contraband between herself and England :^ yet, by the very next article, the twelfth, it was engaged that the goods of enemies should be taken from the ships of friends. Yet it was with such a flagrant violation of right, for the sake of a transient interest, that these powers entered upon treaties, based, according to their highsounding preamble, on the dignity of the con- tracting sovereigns, their care for the happiness of their people, and their solicitude for the rights of mankind in general. On the 28 June/9 July, 1780, was made the treaty between Russia and Denmark, which was the first of the series establishing the con- federacy of the Armed Neutrality. By article III of this treaty, it was stated, that "their Majesties after having already insisted, in their declarations to the belligerent powers, on the general principles of natural right, of which the freedom of commerce and navigation as iDe Martens, vol. iii, p. 188. ^Ibid. 191. Hbid. 200. 46 THE ARMED NEUTRALITY OF 1780 AND 1800 well as the rights of neutral nations are a direct .consequence, have resolved no longer to allow them to be dependent on an arbitrary inter- pretation, suggested by isolated and momentary interests. With this view, they have agreed, I. That all vessels may freely navigate from port to. port, and upon the coasts of nations at war. II. That property belonging to the subjects of states at war, shall be free on board neutral vessels, excepting merchandise of contraband. in. That to determine what characterises a blockaded port, this term shall only be allowed to those where, from the arrangements of the power which is blockading, with vessels stationary and sufficiently near, there is an evident danger in entering. IV. That neutral vessels can not be stopped, without just cause and evident reasons; that they shall be adjudged without delay; that the proceedings shall be always uniform, prompt, and legal ; and that, in every instance, besides the reparation afforded in cases in which there has been loss, but not offence, complete satisfaction shall be given for the insult offered to the flag of their Majesties. The treaty then went on to engage that each party should equip a fleet to support these principles, that mutual succour should be afforded, and that both parties should act in concert; that these stipula- tions should be regarded as permanent, and that other powers should be invited to accede to similar conventions.^ A treaty precisely similar, and copying the above four stipulations, and the ensuing articles, verbatim, was made between Russia and Sweden, on the 21 July/1 August, 1780, and Sweden and Denmark exchanged declarations, each binding themselves to the Russian treaty with the other, and making the confederacy for mutual defence com- plete between these three Powers.^ On the 24th December, 1780, the United Provinces made, at St. Petersburgh, a treaty with Russia, in which they acceded to the above treaties with the Northern courts, and issued declarations of their joining in the full extent of the new confederacy.^ Before the conclusion of this treaty, however. Great Britain had declared war, on the 20th December, against the United Provinces. By treaties existing between this country and the United Provinces, it ^De Martens, Kecueil, vol. iii, pp. 18y-19.S. ^Ihid. 198-208. ^Ibid. 215-222. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 47 had been agreed that the principle that "free ships make free goods" should exist between the two countries ; and also an alliance for mutual defence existed engaging that if either party were attacked, the other party should break with the aggressor in two months from the time of requisition to do so. On France and Spain joining in the American war, such requisition was made by our ambassador, but was evaded by the United Provinces. A hostile feeling was produced by this conduct, and also by the evident favouring of the American cause by the United Provinces; and, on the 17th April, 1780 a declaration was published by our government, announcing that the succours stipulated by the treaty of 1678 never having been afforded by the States General, the provisions of the treaty of commerce of 1674 should be suspended, and the United Provinces treated, no longer in accordance with the privileges there granted, but only on the footing of other neutral nations.^ Disputes had already taken place between the two countries regarding a squadron commanded by Paul Jones, which had been re- fitted in the Texel, and also respecting a fleet of merchantmen convoyed by Count Byland, who had been fired at, upon his refusing to submit to search, and the naval materials on board his merchantmen confis- cated as contraband, contrary to the provisions of the treaty of 1674. The angry feeling between the two countries was aggravated by the accession of the United Provinces to the Russian Memorial ; and a crisis arose upon the capture of Mr. Laurens, formerly president of the American Congress, who was taken by a British ship, and among whose papers were found documents shewing that the United Prov- inces had been in friendly correspondence with the United States ever since 1778, and who had with him a sketch of a treaty of amity and commerce between the United States and the States General, which appeared to be in a train of negotiation, and which was approved by the Pensionary of Amsterdam.^ Soon after the British declaration of war, the States General made application for the assistance stipulated in the new confederacy, in case any member of the alliance should be attacked in consequence of the principles there promulgated. But Sweden, to whom the application was made, replied that the British declaration could hardly be regarded as a consequence of the States General joining the new confederacy, inasmuch as that junction was made after the British declaration of lAnnual Register, 1780, p. 61. 2See the British Manifesto, ibid. p. 142. 48 THE ARMED NEUTRALITY OF 1780 AND 1800 war, the latter being dated London, the 20th December, while the Dutch treaty was dated St. Petersburgh, the 24th December. But although not coming within the terms of the treaty for mutucd defence, it was possible that the British declaration had been hastened in order to anticipate that contingency, although the conduct of the United Provinces in regard to the Russian Memorial was not, noticed in the British Manifesto. Still, if the Northern courts declared war in conse- quence of our breaking with Holland, they removed all the advantages of neutrality which the confederacy was especially established to pro- mote ; while, on the other hand, if the United Provinces were left to their fate, it would seem as if the confederacy had agreed to a conven- tion which they were afraid to carry into execution. Therefore, con- cluded the Swedish Note, it would be best for the Northern courts to adopt a middle course, and present in their joint names a Memorial to the British court, offering their mediation between Great Britain and the United Provinces. In this proposition Russia acquiesced.^ But the position of the Northern powers with regard to this country, was not, at that period, the most likely to make an offer of mediation accept- able ; and the Dutch, having deserted our alliance for the prospect of a more gainful union, found themselves unsupported by their new confederates, and had to buffet for themselves till the end of the war, and to see their commerce cut up, and some of their colonies taken from them, till they were included in the general peace, in 1783, with the loss of Negapatam. To return to the acts of accession to the Armed Neutrality. On the 8th May, 1781, a treaty was made between Prussia and Russia, em- bodying the four articles of the new alliance, and establishing Prussia as a member of the confederacy.^ On the 10th July, 1781, a similar treaty was made between Russia and the Emperor of Germany.^ A similar treaty was made between Russia and Portugal, dated the 13th July, 1782.* And on the 10th February, 1783, the King of the Two Sicilies acceded to the northern confederacy." Thus had all the principal continental powers acceded to the princi- ^See the correspondence in De Martens, Recueil, vol. iii, pp. 230-244. ^De Martens, Recueil, vol. iii, p. 245. ^Ibid. 252. *Ibid. 263. ^Ibid. 267. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 49 pies of the Armed Neutrality, when its operations were suspended by the general peace of 1783. In whatever point of view we regard this celebrated confederacy, it is difficult to find anything respectable con- nected with it. Among others, the following observations suggest themselves. I. The abandonment of principle for interest marks the commencement of the Armed Neutrality; an open breach of faith being made by the two powers that first joined Russia in the associa- tion. II. The ready manner in which one party of the belligerent states acceded to the novel principles, was itself a proof that these principles were inconsistent with the duties of neutrality, as they evidently assisted one side in the contest, and injured the opposed state, which refused to acquiesce in these pretentions. The declaration of France and Spain therefore, that they approved of the northern alliance, was a disproof, not a sanction, of the justice of the con- federacy ; and states, with the title of an Armed N eutrality , undertook to interfere in the issue of a war, by measures which directly assisted one, and directlv injured the other, belligerent. III. A principle which the northern confederacy undertook to establish as a fundamental right of Neutrality, was then for the first time heard of in Europe; for the second article of the statement of principles declares that "free ships shall make free goods," but does not convey the corresponding stipula- tion that "enemy's ships shall make enemy's goods." The latter en- gagement is never once referred to in any of the documents creating the Anned Neutrality. But never had there been, among Christian powers, a treaty which conveyed the former immunity without also engaging the latter privilege. One principle had invariably been con- veyed in exchange for the other. But the framers of the Armed Neutrality, relying upon the imposing aspect of their union, and upon Great Britain having already to cope with several enemies, defied, at once precedent and principle, and attempted to establish by force what their own subsequent conduct proved them not to have regarded as a right, and what never had been claimed as such by any government whatever. IV. The number of the states that joined in the confederacy does not in the least aflfect the question of the right of the principle which they sought to establish. An universal, or even general, con- tinued acquiescence in any given state-principle, may make it probable that such a principle is based on universal law. But no combination of states can establish that as a part of the Law of Nations, which is not dependent upon natural equity, nor can they, rightfully, make the observance of any stipulation incumbent upon any but the contracting 50 THE ARMED NEUTRALITY OF 1780 AND 1800 parties. A glance at the position of the European powers, at the time of the Armed Neutrality, will destroy any belief that the principles of the confederacy must have been just because they were so generally recognized. Russia, Sweden, Denmark, and the United Provinces, had the most direct and immediate interest in the pretensions which they engaged to defend. Remaining neutral at a time when some of the greatest commercial states were at war, their shipping interest would be incalculably benefited if they could carry on trade, "not with, but for," the belligerent countries, and transport the property of the sub- jects of the latter exempt from the capture of the adverse party. On the other hand, France and Spain had equally a direct interest in the principles of the Armed Neutrality, because, from their naval inferior- ity, they were unable to carry on their commerce themselves, and were glad to commit their property to the safe custody of neutral bottoms if these secured their cargoes from capture. Thus all the principal parties to this alliance were directly interested in the claims thereby advanced. But, as a test of the sincerity of their professions, it will be as well to consider whether these same parties had adhered to these principles before this particular contingency arose, or whether they maintained them after this transient advantage had passed away? With regard to the former, it is notorious that the maritime codes of France and Spain had been of unusual severity, and that so far from soaring enemies' goods on board a neutral ship, they confiscated such neutral ship into the bargain, unless where special treaty came to the rescue of the neutral : and, again, Sweden and Denmark had treaties, which had been in constant force for more than a century, engaging the reverse of the principle of the Armed Neutrality. Thus the con- duct of these powers had been in direct contradiction to the novel pretension, before the occurrence of this particular opportunity. And with respect to their conduct after it, it must be remarked' — V, that some of the leading parties to the Armed Neutrality violated its provi- sions on the very first occasion in which they happened to be belliger- ents. In the war between Sweden and Russia, in 1788, Gustavus III renounced the principles of the Armed Neutrality, and Russia followed the example, although not with the same open profession.^ And this was done only five years after one of the treaties of the Anned Neu- trality, notwithstanding the permanency which was declared to be guar- anteed to the new stipulations by art. IX of the treaty of 1780, affording ^See Biisch Volkerseerecht, pp. 34, 36. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 51 an obvious satire on the motives that led to the confederacy, and to the great scandal of those writers who have advocated the maxims thus attempted to be established. VI. Finally, it must be remarked, that the Armed Neutrality of 1780 was attended by no consequence to Great Britain. Our government never once acceded to the principles therein put forward, but made emphatic remonstrance against admit- ting such claims. No decisive issue took place between the two parties, the northern confederates having no case for their joint action against our government, and Great Britain, having already France, Spain, the United States, and the United Provinces to oppose single-handed, was not in a position to take such measures for the vindication of her maritime rights as we shall see she had recourse to on a subsequent occasion. In most of the treaties following the restoration of peace, the princi- ple that "free ships make free goods," and the converse, was stipulated. Before that period, however, was made the treaty between the United States and the United Provinces, in 1782, where these two stipulations are found in articles XI and XII. ^ And in the same year, 1782, was made a treaty of commerce between Denmark and Russia, where t'T^ four articles of the Armed Neutrality are embodied in article XVII. ^ The treaty of Versailles, between France and Great Britain, in 1783. renews the treaty of commerce of 1713, in which the two clauses are inserted,^ which is also done in article II of the treaty of the same date between Great Britain and Spain.* But no such renewal of former treaties was made in our treaty with the United Provinces, in 1784.^ The two clauses are found in articles VII and XIV of the treaty be- tween Sweden and the United States, in 1783.^ On the contrary, the treaty of the same year between Russia and the Porte, engages, article XLIII, that Russian goods on board the ship of an enemy of the Porte shall not be confiscated, nor the merchants made slaves, if they be there for peaceful purposes, — being in accordance with the old rule. This treaty was renewed by the treaty of Jassy in 1792.'' In the treaty between Prussia and the United States, in 1785, the iDe Martens, Recueil. vol. iii, pp. 43po- sition, and the second expresses a fact. It must be recognized that this inexact designation is merely another manifestation of the ten- dency of writers to indulge in subtle and clever language. The term armed neutrality has also been given to certain alliances which, be- cause of the inefticiency of their isolated forces, various neutral States have contracted in view of a common defense, when their interests were identic, in order to compel belligerents to recognize their rights and, betimes, their pretensions. The armed neutralities of 1780 and of 1800 between the Powers of the North, are a very memorable example of such alliances, although, according to the observation of Kleen, they were not confined to the defense of rights or recognized ; they did not institute n&w legislation; and the>f have been nothing more than an armed neutrality in the ordinary sense of the word.^ ^Evidently it is not necessary that the neutrals be challenged, in order to justify their military measures calculated to defend their neutrality againstthe enterprises of the belligerents; imminence of such a danger sufficiently justifies them to resort to these measures. 2Kleen, Lois et usages de la neutralite, 1898, book I, chap. 2, sec. 22, vol. i, p. 119, note 1. 84 THE ARMED NEUTRALITY OF 1780 AND 1800 TRESCOT : The Diplomacy of the Revolution. New York, 1852. William Henry Trescot. American publicist and diplomat ; born in 1822 ; died in 1898; studied law at Harvard and was admitted to the bar in 1843; assistant secretary of state in 1860; member of State Legislature of South Caro- lina; counsel for United States before Halifax Fishery Commission in 1877; minister to Chile and delegate to Pan American Congress in Washington. His writings include The Diplomacy of the Revolution, 1852, An American View of the Eastern Question, 18S4 and The Diplomatic History of the Administrations of Washington and Adams, 1857. Page 22. — The second event to which reference has been made as exciting the hopes of American statesmen, and exercising a large though indirect influence upon the relative position of the belligerents, was the formation of the Armed Neutrality of 1780.^ Its history is important under two aspects — first, as affecting the practical combina- tion of European nations, and second, as declaring a new system of maritime law. The treaty of 1763 had, to a great extent, separated England from a continental connexion, and in the war with her colonies she was absolutely without an ally. The treaty between France and the United States, the declaration of war by Spain, the very uncertain temper of Holland, compelled England to renew, if possible, an alliance with some of the European Powers. Sir James Harris, afterwards better known as Lord Malmesbury, was despatched to St. Petersburgh to effect, if possible, a political combination. San- guine, adroit, and bold, he hoped too soon, moved too fast, and ven- tured too much ; and without paradox it may be said that his very ability disabled him. He found the power of the court divided be- tween Potemkin, a rising, and Panin, a setting favorite. He secured the one, but provoked the other ; and although he estimated their posi- tions rightly, he found, to use the apt comparison of Goertz, that if Count Panin was "a star that hastened visibly to its decline, it was iPlassans, Diplonuiiie Frangaise, vol. vii. Garden's Traites de Paix, tomie cinquieme, chap. xxi. Diaries and Correspondence of the Earl of Malmesbury. Notices Historiques sur le Systcmc de la Neutralite Armee, ct son Origine, par M. le Comte de Goertz. Diplom. Corresp. of the Revolution. Hautefeuille, Droits et Devoirs des Nations Neutres; Discours Preliminaire. Wheaton's History of International Law. EXTRACTS FROM WORKS ON INTERNATIONAL LAW SS still above the horizon, and those even who most desired to see it dis- appear, still believed that they stood in need of its light." Having obtained, through the influence of Potemkin, two private interviews with the Empress Catliarine, he succeeded, after some important con- cessions, in persuading her to consent to an English alliance. But when he received, in reply to his home-communications, full powers to negotiate such a treaty, he discovered to his mortification that Panin, to whom the English alliance was both politically and personally dis- tasteful, and from whom the preliminary interviews with Catharine had been carefully concealed, had succeeded in undoing his work, and as Foreign Minister was prepared with a formal refusal to negotiate. As if to remedy his disappointment, however, news soon arrived at St. Petersburgh of the seizure of two Russian vessels laden with corn and taken by the Spaniards in the Mediterranean. The indignation of Catharine, peculiarly sensitive as to her commerce, blazed out ; and, supported by Potemkin, Lord Malmesbury, with great ability, used the fortunate accident to persuade her to demand from Spain peremptory satisfaction, and at the same time to fit out a fleet at Cronstadt to be sent to sea at the first opportunity. These preparations were again carefully concealed from Count Panin, and Lord Malmesbury naturally and joyfully anticipated their inevitable result — an embroilment with Spain and her belligerent allies. Panin soon discovered the extent and direction of this well-contrived manoeuvre, and defeated it by a policy at once bold and subtle. He expressed deep sympathy with the natural indignation of the Empress at this violation of her neutral rights, but suggested that instead of being an exceptional case needing correc- tion, it proceeded from a false system of public law, against which now was the time to protest. If England agreed with Russia in condemn- ing the seizure, the condemnation by Russia of the principle would be equally acceptable. He therefore persuaded the Empress to publish a declaration to all the belligerents that such a violation of neutral rights would not be tolerated, and to call upon all the northern and neutral Powers to make common cause in defense of the just principles of maritime law. He satisfied her that this was not only conformable to the desire of the English Ambassador, but placed her at the head of a great league for a high and worthy purpose. He further induced her to keep her communications to the foreign courts secret until they should have reached their destination. The despatches were written S6 THE ARMED NEUTRALITY OF 1780 AND 1800 and the couriers started, without any discovery by Lord Malmesbury of the nature of their missives. The Empress indeed informed him that in a day or two such communications would be made to his court as would amply satisfy their desires, and this gracious news he him- self hastened to communicate. Great then was the surprise and indig- nation of the English -Cabinet when they received from Russia a for- mal declaration of maritime law contradicting the whole practice of the English Government, and striking at the foundation of the system which England had always haughtily maintained, and could at this very juncture least of all afford to dispense with. Russia demanded that free ships should make free goods — that even the coasting trade of belligerents should be opened to neutrals — that contraband should be limited and blockades stringent. England received the declaration coldly. The northern Powers eagerly combined with Russia to form a league in the defense of this system, and the belligerents whom Lord Malmesbury hoped to discomfort seized their advantage: Spain made restitution, and in recognizing the justice of the new code pleaded the arbitrary violence of England as her excuse for having violated it ; while France approved the magnanimous wisdom of the Empress, and readily consented to what, by the ordinances of 1778, she had already enacted in principle as the law of her own marine. Unwilling to aban- don principles which she had openly avowed and always acted upon, England saw her last hope of a continental alliance destroyed by this European league. Irritated by Holland's evasion as to her treaty obli- gations, and the adhesion of that republic to the armed neutrality soon after, England declared war against the Dutch. The practical result of the Armed Neutrality therefore was to add one more to the open enemies of England, and to render still more impracticable any com- pensating alliance. In this view it was certainly to the United States an event of great importance. Considered as a declaration of a new system of maritime law, in- tended to guard neutral rights and check the supreme dominion of the English navy, it is far from deserving the importance attached to it at the time. In the first place it took its rise in an accidental intrigue, and was never at any time more than a diplomatic by-play of tem- porary interest. It passed its short life without activity, and died of natural exhaustion: and the Empress herself judged it rightly when she told Lord Malmesbury that it should be called rather nullitS armee than neutralite armee. The great maritime belligerent Powers who EXTRACTS FROM WORKS ON INTERNATIONAL LAW S7 acceded to it, never recognized its principles except when convenient, and it did not even reflect the practice of Russia itself. For in a des- patch dated 26th May, 1780, Lord Malmesbury says of Admiral Greig, an eminent officer in the Russian service, "As soon as he read the declar- ation and saw the grounds on which the instructions were to be made, he collected the various sentences which had been pronounced last war in the Archipelago by the Russian tribunal instituted for that purpose, and at which he frequently presided, on neutral ships. After proving in the clearest manner that they confiscated and condemned Turkish property wherever they found it, and the only prizes they made were such property on board neutral ships, he gave in the whole to Count Czernicheff, signifying that as a faithful and affectionate servant of the Empress he thought himself obliged to set before her eyes, that if she carried her present measures into execution she would act in direct contradiction to herself." ^ In the next place the declaration, "free ships, free goods,'' was not the statement of a principle, but the expression of an interest — an interest as shifting as any of those movable necessities which have ahvays regulated political combinations, never recognized in war by those very belligerents who have declaimed about it in peace. The effort to elevate it into an international law has been only a struggle to legalize one sort of selfishness at the expense of another ; and such a rule can take its place only in a system which, in the emphatic lan- guage of Sir Wm. Scott, ''if it is consistent, has for its real purpose an entire abolition of capture in war — that is, in other words, to change the nature of hostility as it has ever existed among mankind, and to introduce a state of things not yet seen in the world — that of a military war and a commercial peace." ^ The Congress of the United States, however, fancied that they saw in the sentiment of this purely selfish coalition, indication of such a general liberality of political judgment as would respond to the spirit of their resistance. Although discouraged by the more sober wisdom and better information of the French court, they expressed in strong resolutions their approbation of the code of the neutrality, forwarded these resolutions through Mr. Adams to the various courts who had entered into the league, and finally, on December 19, 1780, despatched Mr. Francis Dana as minister to St. Petersburgh. In their instruc- ^Malmesbury's Diaries, etc., vol. i, p. 264. ^Judgment of the High Court of Admiralty upon the Swedish convoy, in the case of the ship Maria, Paulsen, master. S8 THE ARMED NEUTRALITY OF 1780 AND 1800 tions they say to him, "You will readily perceive that it must be a leading and capital point if these United States shall be formally ad- mitted as a party to the convention of the neutral maritime Powers for maintaining the freedom of commerce. This regulation, in which the Empress is deeply interested, and from which she has derived so much glory, will open the way for your favorable reception, which we have greater reason to expect, as she has publicly invited the belliger- ent Powers to accede thereto." ^ One would have supposed that the maintenance of their own free- dom was quite enough for the attention of Congress; and it was, to say the least, a broad interpretation of Catharine's invitation to sup- pose themselves included under the term belligerents. But it must be said for the statesmen of that day, that they never forgot what they intended to be ; and the uniform language of their diplomacy was bold even to what their circumstances might have stigmatized as presumption. But the anxiety with which they sought to introduce themselves into the affairs of Europe was ample evidence that they did not intend their independence to be isolation. They had resolved to be one of the nations of the earth — one to whom the politics of the world were to be matter of practical interest, and they considered their commerce as the means of direct connexion. It will be now generally admitted that any participation by the United States in this coalition would have been a useless complication of their affairs, serv- ing no national purpose and contributing to no general good. The opportunity, however, was never offered ; for Mr. Dana's efforts, how- ever able, were very useless. His presence in St. Petersburgh resulted only in affording Lord Malmesbury the small triumph of preventing his public reception by Russia, even after the acknowledged indepen- dence of the United States, and enabling him to close his career of disappointment at that court by trusting that he had "suspended the appearance of the American agent here in public, till such time as it may take place without having any disagreeable or extraordinary effect." 2 ''-Secret Journal of Congress, vol. ii, p. 358. -Malmesbury's Diaries, etc., vol. i, p. 506. Despatch to Lord Grantham. March 11, 1783. EXTRACTS FROM WORKS ON INTERNATIONAL LAW ' 89 TWISS: The Law of Nations considered as Independent Political Communities. On the Rights and Duties of Nations in Time of War. Oxford, 1863. Sir Travers Twiss, British publicist; born in 1809; died in 1897. As professor at the University of Oxford, as a practicing international lawyer, the authority of Sir Travers Twiss is justly great. Among his chief works a.T&:—The Rights and Duties of Nations in Time of Peace, 1861, second edition 1884, and The Rights and Duties of Nations in Time of War, 1863. The two works appeared in a French edition in 1887. Volume II, page 26 j. — One result of the armed neutrality of 1780 was to lay the foundation of a common concert amongst the conti- nental Powers on the subject of contraband of war, although such concert could only take effect amongst the Powers which were parties to the treaties and declarations ;^ for it was not attempted on occa- sion of either of the armed neutralities of 1780 or 1800 to set aside the treaty-engagements as to contraband of war, which existed be- t-vyeen the Powers, which were parties to either Armed Neutrality, respectively and Great Britain ; on the contrary, there were express stipulations that in the matter of contraband, each State should adhere to its existing engagements with other States. It is consistent there- fore with the custom' of contracting which prevails amongst the European Powers, that the same nation should have different conven- tions on the subject of contraband of war with different nations. "Hence it arises, that the catalogue of contraband has varied very much," as observed by Lord Stowell, "and sometimes in such a manner as to make it very difficult to assign the reason of the variations, owing to particular circumstances, the history of which has not accompanied the history of the decisions." - iThe Declarations of Prussia on the subject of contraband of war will be found in Martens, vol. iii, p. 247 ; and that of Austria in Martens, vol. iii, p. 258. 2The Jonge Maryaretha, 1 Ch. Robinson, p. 192. 90 THE ARMED NEUTRALITY OF 1780 AND 1800 WALKER: The Science of International Lazv. London, 1893. Thomas Alfred Walker. English publicist and clergyman; born in 1862; fellow and lecturer of Peterhouse College, Cambridge; senior WHewell scholar in international law, 1884; examiner in constitutional history, roman law and jurisprudence in University of London; member of the International Law Asso- ciation and of several other societies interested in international and social problems. Among his publications are: The Science of International Law, 1893 ; A Manual of Public International Law, 1895 ; A History of the Law of Nations, volume 1, 1899. Page jo?. — The armed neutralitj' of 1780 was an outcome of the intrigues of Count Panin working in the interests of France and Prussia upon the vanity of the Empress Catharine, whoi was herself well-inclined to British views.'- Already in 1778 Sweden and Den- mark had approached the Empress with formal proposals for the for- mation of a combined fleet for the protection of the neutral trade of the north against all attack.^ It was not until early in 1780 that, chaf- ing under the indignities to which she deemed herself to have been subjected by the submission of her neutral commerce to the belligerent right of search; she caused to be presented to the three belligerent Courts of London, Versailles and Madrid a Declaration, wherein she set out certain principles which, without departing from the strict and rigorous neutrality which she had hithereto inviolably observed, she expressed herself determined alike to adopt and effectively defend.^ .She took this step. ,che said, with the more confidence "qu'Elle trouve consignes ces principes dans le droit primitif des peuples, que toute nation est fondee a reclamer, et que les Puissances belligerantes ne .=auroient les invalider sans violer les loix de la neutralite, et sans desavouer les maximes qu'elles ont adoptees, nommement dkns dif- ferens traites et enpfagemens publics." ''■Diaries and Correspondence of the Earl of Malmesbury, vol. i, pp. 219 et seq. Sir J. Harris to Viscount Stormont, April 24/May 5, 1780 ; Ibid. i. 299. Same to Same, 15/26 May, 1780, Ibid, i, 307. Sir Tames Harris to Hugh Elliott, 7/18 Feb., 1782, Ibid, i, pp. 485 et seq. 2Mr. Harris to the Earl of Suffolk, 11/22 Dec, 1778, Ibid, i, pp. 219-220. Lord Hillsborough was unfortunate enough to excite the wrath of Catharine by a jesting remark that "Her Imperial Majesty's commercial navy was already the best guarded in Europe, as she had a man-of-war to each merchantman." Diaries and Correspondence of the Earl of Malmesbury, vol. i, p. 219. ^Declaration of Her Majesty the Empress of all the Russias to the Courts of London, Versailles and Madrid, Martens, Recueil, vol. ii, p. 74. EXTRACTS FROM WORKS ON INTERNATIONAL LAW yi The principles proclaimed in this imposing fashion in the name of neutrality and universal justice are set forth in five articles. 1. Que les vaisseaux neutres puissent naviguer librement de port en port et sur les cotes des nations en guerre. 2,. Que les effets appartenans aux sujets des dites Puissances en guerre, soyent libres sur les vaisseaux neutres a I'exception des mar- chandises de contrebande. 3. Que I'Imperatrice se tient quant a la fixation de celles-ci a ce qui est enonce dans I'Art. X et XI de son traite de commerce avec la Grande-Bretagne, en etendant ces obligations a toutes les Puissances en guerre. 4. Que pour determiner ce qui caracterise un port bloque, on n'ac- cord cette denomination qu'a celui, ou il y a par la disposition de la Puissance, qui I'attaque avec des \aisseaux arretes et suffisamment proches, un danger evident d'entrer. 5. Que ces principes servent de regie dans les procedures et les jugemens sur la legalite des prises.^ These articles became the basis of the First Armed Neutrahty.- The reception accorded to the Imperial Declaration by the various Powers of Eu.rope, and its ultimate fate forms a sufficient comment upon its character. Great Britain, struggling desperately with a host of foes, with the combined force of her revolted Colonies and of her ancient enemies France and Spain, could little atTord to forfeit the goodwill of "the ^Martens, Recueil, vol. ii, p. 75. Diaries and Correspondence of the Earl of Malmeshury, vol. i, p. 291. _ =^The precise extent of the term contraband being in the various acts of acces- sion set out in detail, and the fifth article of the Imperial program being fur- ther explained, the principles of the first armed neutrality were four; viz. (1) "Que_ les vaisseaux neutres puissent naviguer librement de port en port et sur les cotes des nations en guerre." (2) "Que les efifets appartenans aux sujets des dites Puissances en guerre, soient libres sur les vaisseaux neutres a I'exception des marchandises de contre- bande." (3) "Que pour determiner ce qui caracterise un port bloque, on n'accorde cette denomination qu'a celui, ou il y a par la disposition de la Puissance, qui I'attaque avec des vaisseaux arretes et suffisamment proches, un danger evident d'entrer." (4) "Que les vaisseaux neutres ne peuvent etre arretes que sur justes causes et faits evidens ; qu'ils soient juges sans retard; que la procedure soit toujours uniforme, prompte et legale, et que chaque fois, outr.e les dedommagemens, qu'on accorde a ceux qui ont fait des pertes sans avoir ete en faute, il soit rendu une satisfaction complette pour I'insulte fait au pavilion." See the Convention between Russia and Denmark, July 9, 1780 ; Martens. Recueil, vol. ii, pp. 103-107. 92 THE ARMED NEUTRALITY OF 1780 AND 1800 first Power of the North. Yet the British Goverruiient, preferririig to risk the lo^ss o^f an all-powerful ally rather than adopt that attitude of politic complaisance which their ambassador at St. Petersburg— the astute and able Harris' — urgently advised,^ returned a reply of simple and unyielding dignity. During the whole course oi the war, said the ministers of George III, in which His Majesty was then engaged in consequence of the aggression of France and Spain, he had mani- fested those sentiments of justice, equity and moderation which were v.'ont to govern all his dealings. He had regulated bis conduct to- wards friendly and neutral Powers in accordance with theirs in his regard, confo'rming it to the clearest and most generally recognized principles of the law of nations — the sole standard for nations who were bound by no particular treaty — and to the tenor of his different engagements with other Powers, engagements which had varied the normal law by mutual stipulations, and that in many various ways, according to the will and convenience of the contracting parties. Firmly bound to Her Imperial Majesty by the ties oif mutual amity and of comimon interest, he had from the very beginning of the war given strict orders for the display of respect to her flag and to the commerce of her subjects, in accordance with the law Oif nations, and the tenor of his engagements with her, engagements which he would fulfil with the most scrupulous precision. These orders had been re- newed, and, should the least violation occur, his admiralty tribunals, guided in their decisions solely and entirely by the general law of nations and the stipulations of particular treaties, would redress the wrong in such fashion, that Her Majesty would recognize in their judgments that spirit of justice by which she was herself animated.^ A singular contrast to this calm and self-respecting language was afforded by the enthusiastic acclamations of France and Spain. Louis X\''I, moved by no other inducement in the war in which he found himself engaged than by the attachment which he felt for the ijames Harris, afterwards first Earl of Malmesbury, a diplomatist whose eminent abilities displayed in a peculiarly successful career amply justified Mirabeau's fear of "cet audacieux et ruse Harris" and Talleyrand's opinion, of him as the most able English minister of his day. Diaries and Correspondence of James Harris, First Earl of Malmesbury, edited by his grandson, the third Earl. Introductory Memoir, xvii. ^Harris to Viscount Stormont, 13/24 Dec, 1780; Diaries and Correspondence of the Earl of Malmesbury, vol. i, pp. 368-9. 3Reply of the Court of London to the Declaration of the Empress of Russia concerning neutral commerce, dated Feb. 28, 1780, and presented at the Court of London, April 1, 1780. Martens, Recneil, vol. iv, pp. 345-346. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 93 Drinciple of the liberty of the seas, could only experience a lively satis- faction in seeing the adoption of that same principle by Imperial Russia. "Ce que Sa Majeste Imperiale reclame de la part des^ Puis- sances belligerantes, n'est autre chose, que les regies prescrites a la marine Franqoise, et dont I'execution est maintenue avec une exacti- tude connue et applaudie de toute I'Europe." It would be unneces- sary for His Majesty to give new orders for the care of neutral navi- gation over and above the ordinary regulations in force, since the Empress had declared for a system ^vhich His Majesty maintained at the price of his people's blood, and had demanded those very laws which he would desire to make the basis of the maritime code of all nations.^ The rules proposed by the Empress of Russia, declared His Catholic Alajesty, then engaged in the blockade of Gibraltar, were those which had always guided his conduct, and which he as a neutral had tried by all means possible, but without effect, to imduce England to adopt, and which only the conduct of that Power had compelled him as a bel- ligerent to depart from in self-defense.^ Nor were other Powers wanting to swell the chorus of applause. Denmark^ and Sweden,* who had been the first to agitaite for the for- mation of an armed neutral league. Fru,ssia,^ — whose rulie'r was now animated by the most inveterate hostility towards England, — A.uistria'' and the Empire,^ the Two Sicilies-^ and Portugal" acceded to the armed neutrality. It was in vain that Great Britain appealed to the faith of treaties and to the history of the past.^" Her utmost efforts hardly iReply of the Court of France to the Declaration of the Empress of Russia, April 25, 1780. Martens, Recueil, vol. iv, pp. 346-348. 2Reply of the Court of Spain to the Declaration of the Empress of Russia, April 18, 1780. Ibid. pp. 348-350. 3July 9, 1780; Ibid, ii, p. 103; iv, p. 361. *Sept. 9, 1780; Ibid, ii, p. 110; iv, pp. 369, 370. 5May 8, 1781 ; Ibid, ii, p. 130. Sir James Harris to Viscount Stormont, 30 April/11 May, 1781; Diaries and Correspondence of the Earl of Malmesbury, vol. i, p. 420. '■■1784-5; Martens, Recueil, vol. ii, p. 620. ■Oct. 9, 1781; Ibid, ii, p. 171. sFeb. 10, 1783 ; Ibid, ii, p. 274. ojuly 13, 1782; Ibid, ii, p. 208. i»"Treatie= can be changed only by the mutual accord of the contracting parties, and, so long as they subsist, they are equally obligatory in all cases alike on the one and the other." Reply of the Court of London to the Declara- tion of the King of Sweden. Martens, Recueil, vol. iv, p. 369. 94 THE ARMED NEUTRALITY OF 1780 AND 1800 sufficed to restrain the Empress from ac±ive furtherance of her prin- iciples. The Dutch, too, between whofti and the English a rupture had been swiftly preparing in consequence of the refusal by Holland of the assistance to which she was bound by treaty with England, and oi the intimate relations of amity and commerce entered into- between the United Provinces and the revolted American colonies,^ hastened to secure admittance into the Neutral I.eague.- It seemed as though the whole civilized world were rising against the maritime supremacy O'f England. But E-ngland was not slow to- accept the challenge. Four days before^ the acceptance of the accession of HoUand to the armed neutrality the British had, to the astonishment of Russia and the no ■small rage of Frederick,* declared war against the United Provinces, and the Dutch, struggling in vain to enlist the active assistance of the Neutral Powers, secured but a bare offer of mediation, anid were obliged to bear the full brunt of an unsuccessful war.^ The principles of the armed neutrality had not been sanctified by the practice of the parties to it in days before their trading profits were bound up with the interests of the neutral flag, and were violated by those same parties when first they exchanged their neutral charac- ter for that of belligerents. So far were France and Spain from adopting before 1780 the principle "free ships, free goods" that they regularly asserted the principles of "enemy ships, enemy goods," and "enemy goods, enemy ships," principles now kept carefully in the background. Up to the very moment oif the presentation of the Im- perial Declaration Spain followed the stricter practice with such sever- ity as well-nigh drove Russia in self-defence into the arms of Eng- land." Russia herself had during her recent Turkish war confi.sicated Turkish property wherever found, and the only prize she made 'was, as her Admiral honestly confessed, of such property captured under the neutral flag.' And in their war of 1788 Russia and Sweden alike ^Diaries and Correspondence of tht; Earl of Malmesbury, vol. i, pp. 341, 380. Martens, Recueil, vol. ii, p. 76. 2Dec. 24 1780; Martens, Recueil, vol. ii, p. 117; iv, p. 379. 3Dec. 20, 1780. * "Puisque les Anglais veulent la guerre avec tout le monde, ils I'auront," cried Frederick when he heard of the English declaration. Mr. Elliott to Viscount Stormont, Diaries and Correspondence of the Earl of Malmesbury, vol. i, p. 383. "^Ihid. i, p. 385. Martens, Recueil, vol. iv, pp. 389 et seq. "Diaries and Correspondence of the Earl of Malmesbury, vol. i, pp. 278-279. ^Sir James Harris to Viscount Stormont, 15/26 May, 1780, Diaries and Cor- respondence of the Earl of Malmesbury, vol. i, p. 306. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 95 renoiunced the principles which they had pubhcly declared for but eight short years before.^ After the movement of 1778-80, indeed, the combined rules "free ships, free goods ; enemy ships, enemy goods"' advanced in favor, and were embodied in numerous treaties, France now taking the lead in iheir support.^ But there was still no perfect consistency in the en- gagements of the several Powers ; sometimes the principle "free ships, free goods" was adopted without the companion jingle;^ sometimes a different rule was follo'wed by the same Power at the same perioid with different states, or even with the same state at different periods.* In the main, however, the principle of the freedom of the neutral flag seemed well on the way to general acceptance, when a new phase was entered upon in the outbreak of the wars of the Frenah Revolution. The passions of the combatants in that great struggle were aroused too fiercely for any improved regard of neutral rights. France in declar- ing good prize the goods of an enemy found under the neutral flag^ was the first to repudiate her recently formed engagements, and Rus- sia herself abandoned the high moral notions of which she had been the fervent preacher, to adopt with England "the principle generally recognized and the precepts of the law of nations," " to wit, that old rule of the Conso'.ato del Mare which her ally had so long and sO' con- sistently maintained. Nor were the rest of the parties to the armed neutrality slow to follow this suggestive example.' The United States iCf. Martens, Recueil, vol. vi, p. 210. ^Treaties of France and U. S. 1778. France and Mecklenburg 1779, Holland and U S. 1782, Sweden and U. S. 1783, France and Great Britain 1786, France and U. S. 1800: Martens, Recueil, vol. i, p. 69S ; ii, pp. 41, 2SS, 332, 693; vii, pp. 56 and 490; Chalmers, Treaties, vol. i, p. S30. ^Treaties of France and Holland 1785, Prussia and U. S. 178S, France and Hamburg 1789, U. S. and Spain 1795, U. S. and Tripoli 1796, Russia and Por- tugal 1798; Martens, Recueil, vol. ii, pp. 571, 616; iii, p. 159; vi, p. 574; vu, pp. 147 and 267. ^Treaty of U. S. and Great Britain, 1795 ; Martens, Recueil, vol. vi, p. 3o8. 5See the Decrees of the National Convention of May 9 and July 17, 1793, and the Arrete of the Executive Directory of March 2, 1797: Martens, Recuetl, vol. vi, pp. 757-9 and 769. . . , , ,„>-.. j. The Law of Jan. 18, 1798, laid down the prmciple that "L etat dun navire, en ce qui concerne la qualite de neutre ou d'ennemi, est determine par sa cargaison." All vessels carrying English goods were accordingly declared good prize. Martens, Recueil, vol. vi, pp. 774-5. ^Treaty of Great Britain and Russia 1797, Art. 10, Martens, Recueil, vol. vi, ^■^TreatTes of &earBritain and Spain, Great Britain and Prussia, Great Britain and the Empire 1793 ; ibid, v, pp. 150, 168, 170. 96 THE ARMED NEUTRALITY OF 1780 AND 1800 remained, and for obvious reasons, the only consistent supporter of the privilege of the neutral carrier/ But the day of "free ships, free goods" was not yet over. In the first few months of the year 1800 A. D. the NoTthem Powers again drew together in the second armed neutrality.^ Arising immediately in the resentment of the mad Emperor Paul at the conduct of Great Britain in retaining the island of Malta in contravention of what he conceived to be his rights as Grand Master of the Knights of St. John,^ its more public occasion was the recent irritation caused in the North by the attitude of England on the subject of the protection afforded by neutral convoy.* Early in the second half of the eighteenth centun,' Sweden and Den- mark had attempted to set up as a neutral right the immunity from belligerent search of merchantmen sailing under the convoy of a neu- tral man-of-war.'^ The question, however, became of more pressing importance in the last decade of the century, when the number of such convoys was largely increased in consequence of the action of the combatants in the French revolutionary struggle^ and more especially after the issue of the French decrees denouncing the penalty of con- fiscation againrt the neutral' ship-owner who should engage in carrying English goods, and the pirate's death to the neutral seamian who should venture to sign articles in the English service." Then the irritation of the disputants rose to fever heat in consequence of a succession of exciting incidents. In 1798 a Swedish convoy was after some slight display of force in the British Channel brought in for adju-dication in the British Prize Court, and condemned by Sir William Scott on the ground of resist- ance.' In December, 1 799, occurred a more spirited affair in the straits ol Gibraltar between the English squadron of observation and a Danish iTreaties of U. S. atid Spain 17QS, U. .S. and Prussia 1789, U. S. and France 1800; ibid, vi, pp. 1.S4 and 676; vi, p. 103. '^Traites et autres actes rchtifs a la nou7jclle association maritime; Martens, Supplement, vol. ii, pp. 344—475. ^Cf. Martens, Recueil, vol. vii, p. 156. ^Manning, Law of Natirns, Book V, chap. XL i^The principle was adopted in the follovying treaties : United States and Prussia, 1785, France and Russia, 1786-7, Two Sicilies and Russia, 1787, Por- tugal and Russia, 1787 and 1798, United States and France, 1800. Martens, Recueil, vol. ii, p. 572; iii, pp. 17, 45, 119; vii, pp. 266, 493. "Arrete of the Executive Directory of Oct. 29, 1798. 'The Maria, 1 C. Rob. 340. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 97 convoy, the Danish commander, in pursuance of his instructions, firing on the boats of the English search party. Mr. Merry, the charge d'affaires at Copenhagen, immediately demanded an explanation and disavowal of the action of the Danish captain.^ Count Bernstorff, however, far from complying with the demand, sought to justify the conduct of the officer, coupling with a denial oi the right of belliger- ents to search merchantmen under convoy an answering demand for reparation.''' The dispute was still unsettled when on July 2.S, 1800, the Danish and British navies again came into hostile collision, and Captain Krabbe of the Freya, a Danish frigate convoying six merchantmen, haviiig refused to permit the search of his charge in the British Chan- nel, was, after a smart action with a British squadron, brought in with the convoy to the Downs. ^ The Danish Government in their turn de- manded prompt satisfaction for this most public insult to their neutral national flag, and an immediate restitution of the captured vessels. But Great Britain showed no sign of a wilhngness to yield. Lord Whitworth was instantly despatched on a special mission to (Copen- hagen, but a British fleet entered the Sound to lend weight to his rep- resentations. A lively passage at arms ensued,* Great Britain defend- ing the action of her officers as groundetl in the plainest principles of the law of nations, whilst Count Bernstorflf treated the capture of the ,'convoy as an altogether unwarranted invasion of neutral rights. Finally, however, the negotiators agreed on August 29, 1800, upon a convention for the temporary settlement of the contested question.' But a new and more formidable disputant was already in the field. On August 16, 1800, the Em.peror Paul, to whom the Danish Government had made early approaches, issued a declaration wherein, reciting the history of the recent action of the English with regard to neutral con- voys, he invited Sweden, Denmark, and Prussia to concur wiith him in measures for the establishment in full force of the principles of the Armed NeutraKty." Nor did Paul content himself with empty iMr. Merry to Count Bernstorff, .April 10, 1800; Martens, Supplement, vol. ii, p. 347. 2Count Bernstorff to Mr. Merrv, April 19, 1800; Martens, Supplement, vol. ii, p. 350. 3Count de Wedel-Jarlsberg to Lord GrenviUe, July 29, 1800; ibid, ii, p. 353. Memoirs and Correspondence of t!t£ Marques Wellesley, vol. ii, p. 116. *Martens, Supplement, vol. ii, pp. 359 et seq. 'Martens, Recueil, vol. vii, p. 426. ^Martens, Supplement, vol. ii, p. 368. 98 THE ARMED NEUTRALITY OF 1780 AND 1800 words. Apprised of the appearance of the English squadron in the Sound, he ordered the sequestration of all English property within his dominions. The arrival of the news of the signature, on the very day (Aug. 29) of the issue of his edict, of the Anglo-Danish conven- tion momentarily disconcerted his plans, but, a new source of irrita- tion against England being inopportunely supplied by the non-fulfil- ment of his singular Maltese dreams, he started afresh on his career of violence. An embargo v/as laid on British shipping in Russian ports, and, when two British vessels made their escape by force from their anchorage in the port of Narva, a third which remained was dommitted to the flames. Noir were other Powers wanting to excite to frenzy a brain but too palpably disordered. Spain lent fuel to the conflagration by complaining of the irregular impressment by an Eng- lish squadron of a Swedish galliot for the purpose of cutting out a couple of Spanish frigates in the harbour of Barcelona,^ and Prussia supported her in an extraordinary and altO'gether unjustifiable demand upon Sweden for the release of the captured vessels. It was a singu- lar view of neutral rights which was expounded by these strange allies : Spain excluded all Swedish vessels from her ports by way of reprisal for the refusal of Sweden to be hurried into forcible measures against England,^ and Prussian troops entered the ports of the neutral city of Hamburg because an Embden ccmtraband trader captured by the English had been driven by stress of weather into the sheltering harbour of Cuxhaven.'' But of little avail with the Powers of the North were arguments merely verbal. In December, 1800, Denmark, Sweden and Prussia united with Rus- sia in the second armed neutrality. The guiding principles of the new league were set out in the main in five articles, which added to the four rules of 1780 a fifth dealing with the subject of convoy.* ^Ortolan, Dipl. de la Mer, torn, ii, liv. 3, ch. i, pp. 30-31, and Pieces Justifica- tives B. 2Sec the correspondence between the Spanish and Swedish Governments, Martens, Supplement, vol. ii, pp. 374-381. -Ibid. ii,*pp. 381-387. ■^The four Powers agreed upon measures to enforce the rules.: — (1) "Que tout vaisseau peut naviguer librement de port en port, et sur les cotes des nations en guerre. (2) "Que les effets appartenans aux sujets des dites puissances en guerre soient libres sur les vaisseaux neutres, a I'exception des marchandises de oon- trebande. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 99 Denmark, taken to taslc by Great Britain in respect of her accession to a combination for the support of principles diametrically opposed to the spirit of the convention but just concluded, unhesitatingly avowed her adhesion to the Northern Alliance, and called upon her questioner to admit "Que I'abandon provisoire et momentane, non d'un principe dont la question est restee indecise, niais d'une mesure dont le droit n'a jamais ete, ni ne scauroit jamais etre conteste, ne se trouve nuUement en opposition avec les principes, generaux et per- manens, relativement auxquels les puissances du Nord sont sur le point de retablir un concert, qui loin de pouvoir compromettre leur neutralite, n'est destine qu'a la raffermir."^ But Great Britain, now more free than in 1780 to deal with the self- constituted prophets oif neutral right, was in no humor to stomach either the veiled hostility of Bernstorff or the overweening insolence^ of Haugwitz. A war of eanbargoes speedily led on to. open rupture. Parker and Nelson forced the passage of the Sound, and crushed the Danish naval power in the bloody battle of Copenhagen;^ the Danish and Swedish possessions in the West Indies surrendered in quick suc- cession to Duckworth and Trigge ;* and British troops occupied with- (3) "Que pour determiner ce qui caracterise un port bloque, on n'accorde cette denomination qu'a cehii, ou il y a, par la disposition de la puissance qui I'attaque avec des vaisseaux arretes et suiifisamment proches, un danger evident d'entrer et que tout batimens naviguant vers un port bloque ne pourra etre regarde d'avoir contrevenu a la presente Convention, que lorsqu'apres avoir ete averti par le Commandant du blocus de I'etat du port, il tachera d'y penetrer en employant la force ou la ruse. (4) "Que les vaisseaux neutres ne peuvent etre arretes que sur de justes causes et faits evidents, qu'ils soient juges sans retard, que la procedure soit toujours uniforme, prompte et legale, et que chaque fois, outre les dedomma- gemens qu'on accorde a ceux qui ont fait des pertes, sans avoir ete en contre- vention, il soit rendu une satisfaction complette pour I'jnsulte faite au pavilion de leurs Majestes. (5) "Que la declaration de I'Officier, commandant le vaisseau ou les vais- seaux de la Marine Royale ou Imperiale, qui ac-compagneront le convoi d'un ou de plusieurs batimens marchands, que son convoi n'a a bord aucune marchandise de contrebande, doit suffire pour qu'il n'y ait lieu a aucune visite sur son bord ni a celui des batimens de son convoi." Conventions between Russia and Sweden, Russia and Denmark and Russia and Prussia (Dec, 1800), Martens, Supplement, vol. ii, pp. 393, 402, 409. iCount Bernstorff to Mr. Drummond, Dec. 31, 1800. Martens, Supplement, vol. ii, p. 417. ^Count Haugwitz to Lord Carysfort, Feb. 12, 1801. Martens, Supplement, vol. ii, pp. 431 et seq. sApril 2, 1801. ^Martens, Supplement, vol. ii, p. 466. 100 THE ARMED NEUTRALITY OF 1780 AND 1800 out a show of resistance Serampore and Tranquebar/ Humbled at home and stripped of all their foreign dominions, the Danes were in no condition to prolong an unequal struggle, and the cruel murder of I'auP opened a speedy way to the accommodation of differences. Early in June, 1801, a maritime convention^ was signed at St. Peters- burg between the ministers of George III and the neav Emperor Alexander. The treaty may be regarded as a compromise. Great Britain, confirming the definition of contrabarid set out in her last treaty of commerce with Russia, agreed expressly to adopt three prin- ciples O'f the armed neutrality which she had not hitherto contested. She admitted the right of neutrals to navigate freely between the ports and on the coasts of nations at war, she acknowledged that blockade to be binding must be effective, and she assented to the neces- sity for the administration by belligerents in their dealings with neu- trals of speedy and uniform justice. But she vindicated against the neutral Powers the; right of search of merchantmen under convoy as exercised by men-of-war, and established the liability to seizure by a hostile captor of goods being actually the property of the subject of a belligerent laden under the neutral flag.* WESTLAKE: International Law, Part II, War. Second edition, Cambridge, 1913. John Westlake. Contemporary British publicist; born 1828; Whewell professor of international law at the University of Cambridge, 1888-1908. Page 26^. — The compromise between belligerents and neutrals is, however, subject to the question whether there is anything peculiar in ^Memoirs and Correspondence of the Marques Wellesley, vol. ii, chap. v. ^Diaries and Correspondence of the Earl of Malmesbury, vol. 'iv, pp. 54-56. ^Martens, Supplement, vol. ii, p. 476. *It is agreed by Article III : — "Que les effets embarques sur les vaisseaux neutres seront libres, a I'exception de la contrebande de guerre et des proprietes ennemies ; et il est convenu de ne pas comprendre au nombre des dernieres les marchandises du produit, du cru ou de la manufacture des pays en guerre, qui auroient ete acquises par des sujets de la puissance neutre, et seroient transportees pour leur compte; lesquelles marchandises ne peuvent etre exceptees en aucun cas de la franchise accordee au pavilion de la dite puissance." Rule 2. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 101 the character of the investmeiiit which neutrals have accepted as equiv- alent to siege, and on this we meet with a long and great controversy which still exists if the Declaration of London shall not be found to have settled it. One point has alwa3'S been certain, namely, that, whether the blockade be a commercial or a m^ilitary one, there must be a real danger to the blockade-runner in crossing the line of the in- vestment, independent of any danger which he may run of being caught earlier with the intention of crossing it, or later after having crossed it. A line which it is not in itself highly dangerous tO' try to pass can not be that of an investment, nor can it afifect with technical guilt either the intention to pass it formed at a distance, or the fact of its having been passed. This is expressed as follows by the Decla- ration O'f Paris: 4. Blockades, in order to be binding, roust be real,^ that is to say, maintained by a force sufficient really to prevent access tO' the coast of the enemy. If "really to prevent access" were taken literally, the successful crossing the line by one blockade-runner would prove the blockade to be void, which has never been contended. The meaning therefore muist be, "to make the attempt at access highly dangerous." But, this being so, a question remains as to the method by which the danger may be created. The continental Powers, including Holland herself aftar her relative decline in naval power, have usually maintained that a blockade is only valid in law if the danger of ingress or egress arises from the cannon either of ships, stationary or sufficiently near one another, or oif works on land. This is laid down, with more or less variety of expression, in the treaty of 1742 between France and Den- mark, in that of 17S3 between Holland and the Two Sicilies, in the declarations and treaties of armed neutrality in 1780, in the various adhesions of other continental States to that armed neutrality or its. i-ules, and in the declarations and treaties of armed neutrality in 1800.^ ^Effectifs in the original, which means "real," not "producing an effect, as effective, which is the official translation, usually means m English. So also whenever an English writer mentions an effective blockade, he must be under- stood to mean a real one, that is a real investment, and not to be adding any further condition to its reality. 2Jn several of these pieces the place to be blockaded is described as attacked, but considering the practice of the eighteenth century, it must be admitted that this arose only from habit, or at least was done without an intention to require a real attack An exception to that interpretation is, however, furnished by the treaty of 1787 between France and Russia, in which the rule of the armed 102 THE ARMED NEUTRALITY OF 1780 AND 1800 \A^hen Russia, by a change cf policy consequent on the battle of Copen- hagen and the death of the Emperor Paul, abandoned the armed neu- trality of 1800, her treaty of 1801 with England required for a block- ade the presence only of ships stationary or, instead of and, sufficiently near to create an evident danger of entering. Yet in 1823 she assured the United States that she no longer held herself bound by that en- gagement.^ WHARTON: A Digest of the International Law of the United States. Second edition. Washington, 1887. Francis Wharton, American publicist ; born 1820 ; died 1891 ; solicitor for the Department of State of the United States. Volume III, page 262. — Previous to the war which grew out of the American Revolution, the respective rights oi neutrals and belligerents had been settled and clearly defined by the conventional law of Europe, to which all the maritime P'owers 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 ac- knowledging the existence oi the rights of neutrals as set down in the maritime code. In addition to the recognition of these rights by the Europeai: Powers, one of the first acts oi 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 de- neutrality of 1780 is reproduced with a variation requiring an attack by a num- ber of ships proportioned to the strength of the place, and Napoleon or his advisers, may have had that treaty in their mind when drafting the Berlin decree. But that will not excuse the transparently false assertion about "the usage of all civilized nations." See above, p. 262. Again, many of the treaties, ending with that between Russia and Denmark in 1818, require the line of investment to be formed by a certain number of ships, usually two. That of 1753, mentioned in the text, requires six ships, which may lie a Httle outside the range of the shore batteries, but which must expose blockade-runners to danger from their cannon. ^Lawrence's Wheaton. edition of 1863, editor's note 235. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 103 fined, and that neutrals might freely sail to and between enemies' ports, except such as were blockaded in the manner therein set foTth. These principles having thus been established by universal consent, be- came 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 lat- ter Power, however, having soon betrayed a disposition to deviate from them in some of the most material points, the Governments which hau ]>reserved a neutral course in the contest became alarmed at the dan- ger with which their maritime rights were threatened by the encroach- ments 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 Februai-y, 1780, she issued her celebrated declaration, con- taining 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, mav 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 are, with the exception of contraband articles, free on board neutral vessels. 3d. With respect to the definition of contraband articles, the Em- press 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 determiine what constitutes a blockaded port, this denomina- tion 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 judgn:ents Avith 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 re- ceived 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 ex- isting treaties. The declaration was likewise communicated to the ather European Powers, and the accession by treaties or solemn dec- 104 THE ARMED NEUTRALITY OF 1780 AND 1800 larations of Denmark, Sweden, Russia, Holland, Austria, Portugal, and the two Sicilies to the principles asserted by the Eimpress of Rus- sia, formed the league, which, under the name of "arrned neutrality," undertook to preserve inviolate the maritime rights of neutrals. Whatever may have been the conduct of the belligerents in that war with respect to the rights of neutrals as declared by the armed neu- trahty, the principles asserted by the declaration of the Empress Catharine were again solemnly recognized by the treaty of peace con- cluded hy Great Britain and France at Versailles on the 3d Septem- ber, 1783. Among the several treaties thereby renewed and con- firmed was that of Utrecht, in 1713, by which the same contracting parties had, nearly a century before, given the mO'St solemn sanction to the principles of the aiimed neutrality, which were thus again pro- claim'ed 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 th,e Powers of the earth, took their station amongst them. These principles, to which they had given their sanction in their treaties with France in 1778, were again confijmed in those of 1782 with Sweden, and 1785 with Prussia, and continued, uncontr overfed by other nations, until the wars of the French Revolution broke out and became almost general in Europe in 1793. The maxims then ad- vanced 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 rights. It Vi^as with this view that the Emperor Paul, of Russia, apealed to these Powers, and that, at his instance, making common cause in behalf of the general imterests of nations, Russia, Sweden, Denmark, and Prussia united in a new league of armed neutrality, bound themiselves by new treaties, reasserted the principles laid down in the declaration of 1780, and added thereto some new clauses extend- ing sitill further the privileges of neutral commerce. Mr. Van Buren, Sec. of State, to Mr. Randolph, June 18, 1830. Mss. Inst., Ministers. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 105 Page 411. — By the "armed neutralit}^" entered into during the Ameri- can Revolutionary' War by Russia, Denmark, and Sweden in 1780, "being the three northern Powers from whose dominions chiefly the other maritime nations of Europe received supplies of timber and other naval stores," the effort was made "to strike these from the list of contraband, or by some means to exempt them from capture." It was understood, however, at the time, that this was an exception from the law of nations. By this law "timber and other articles for the equipment of ships are contraband of war." Hence the recital of this principle in Jay's treaty ought to give no just cause of offense to France. Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. Mss. Inst., Ministers. WOOLSEY: Introduction to the Study of Internationcd Law, de- signed as an aid in teaching and in historical studies by Theodore Dwight Wooilsey. Sixth edition revised and enlarged by Theodore Salisbury Woolsey. New York, 1897. Theodore Dwight Woolsey. American publicist and educationalist; born in 1801 ; died in 1889 ; president of Yale College from 1846 to 1871 ; member of the Institute of International Law; author of works on Greek literature, law, re- ligion, and social economy. He contributed largely to periodicals and wrote numerous articles on subjects bearing on international law, among others, Recent Aspects of International \Law, 18S6, and Right of Search, 1858, both of which appeared in the New Englander, a review founded by him. His most important contribution to the science of international law is his Introduction to the study of international law, designed as an aid in teaching and in historical studies, 1860, which has run through many editions. Page 2'/o. — The position of the neutral gives rise to rights, which may be defended against attempted aggressions of a belligerent by armed foirces, and several neutrals may unite for this purpose. This is called an armed neutrality, of which the two leagues of the Baltic 106 THE ARMED NEUTRALITY OF 1780 AND 1800 Powers in 1780 and 1800 furnish the most noted instances. But it may be doubted whether the term neutrahty can be applied to these leagues, which not only armed themselves for self-defense, but laid down principles of public law against the known maxims oi one of the belligerents, which they \A'ere read}' to make good by force. (Sees. 189, 209.) Page ^lo. — The armed neutrality set on foot in 1780 was a plan to escape from the severe but ancient way of dealing with neutrals which Great Britain enforced, by advancing certain milder principles of international law. These were that neutral vessels had a right to sail in freedom from harbor to harbor and along the coasts of bellig- erents ; that the property of enemies not contraband of war on neu- tral ships should be free; that a port is blockaded only when evident danger attends on the attempt to run into it; that by these principles the detention and condemnation of neutral ships should be determined ; and that, when- such ^'essels had been unjustly used, besides repara- tion for loss, satisfaction, should be made to the neutral sovereign. ITie parties to this league engaged to equip a fleet tO' maintain their principle, and were to act in concert. These parties were, besides Russia, which announced the system to the Powers at war, and in- vited other neutrals tO' cooperation, Denmark, .Sweden, the Dutch provinces, Prussia, Austria, Portugal, and Naples. TwO' of the bellig- erents, France and Spain, concurred, but the other, England, replied that she stood by the law of nations and her treaties. England had reason to complain of this league, because some of the parties, then at peace with her, — Sweden and Denmark, — were at the time held by treaty with her to just the contrary principle; while othens had even punished neutral ships for what they now claimed to be a neutral right. The first armed neutrality did little more than announce a principle, for no collision took place between them and Great Britain; but it formed an epoch, because in no previous arrangement between Christian states had the rule, "free ships, free goods," been separated from the opposite, "unfree or hostile ships, hostile goods." In the peace of Versailles, which in 1783 terminated the war between Eng- land and France growing out of our revolution, the two Powers re- turned to the stipulations of the peace of Utrecht which have been mentioned above. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 107 Page 312. — Twenty years after the first armed neutrality a second was farmed, to which Russia, the Scandinavian Powers, and Prussia were parties; and which derived the pretext for its formation from differences of opinion concerning convoy (Sec. 209), as well as from alleged violations of neutral rights by English cruisers in the case of a Swedish vessel. The platform of this alliance embraced much the same principles as that of 1780, together wath new claims concerning convoy. But nothing was gained by it saving some trifling conces- sions from Great Britain, while Russia, Denmark and Sweden ere long gave in their adherence to the English views of neutral liabilities. (Sec. 209 knd Append, ii., under 1800.) Page j6i. — A search at sea is exiceedingly annoying, not only be- cause it may affect an innocent party, and may cause expensive de- lays, but also because those who are_concemed in it are often insoJent and violent What can be expected of a master of a privateer, or of an inferior ofucer in the navy, urged perhaps by strong suspicion of the neutral's guilt, but that he will do his office in the mo-st offensive and irritating manner? To prevent these annoyances, governments have sometimes arranged with one aii'Other, that the presence of a public vessel, or convoy, among a fleet of merchantmen, shall be evi- dence that the latter are engaged in a lawful trade. But neutrals have gone farther than this, they have claimed, without previous treaty, that a national ship convoying their trading vessels shall be a sufficient guaranty that no unlawful traflic is on foot. The beginnings of such a claim proceeded from the Dutch in the middle of the seven- teenth century, but the first earnest and concerted movement on the part of neutrals for this end, was made near the end of the last cen- tury, at which time, also, the principal maritime powers, excepting Great Britain, made treaties establishing the right of convoy between themselves. From this starting point, neutrals went on to claim that this ought to be regarded as a right forming a part of the law of nations, and to employ force, when Great Britain exercised, without respect to the convoy, the right of search on the old plan. In 1798, the convoy of a fleet of Swedish merchantmen, having, in confoTmity with instructions, taken a British officer out of one of the vessels of commerce, the whole fleet was captured, and Sir William Scott, in the British admiralty court, decided that the act of violence subjected all 108 .THE ARMED NEUTRALITY OF 1780 AND 1800 the vessels to conderanation.^ Not long after this, in 1800, a Danish frigate in the Mediterranean, acting as a convoy, fired on the boats sent from British frigates to examine the merchant vessels under its protection. The act was repeated in July oif the same year by another frigate of the same nation, then neutral but ill-affected towards Eng- land. The frigate, named the Freya, with six trading vessels under its care, met s.ix British ships of war, when the refusal of a demanc. to search tlie merchantmen led to acts of hostility, which resulted in the' surrender of, the Danish national vessel. In consequence, how- ever, of negotiations between the two governments, the ship was re- leased, and it was agreed, on the part of the Danes, that the right of convoy should not be exercised, imtil some arrangement should be made touching this point. Thete collisions were one of the reasons for the formation of the second armed neutrality of 1800. In that league the contracting Powers (Russia, Sweden, Denmark, and Prussia), among other stipulations, agreed that search should be prevented by a declaration of officers in charge of a convoy to the effect that the ships under his charge had no contraband goods on board. The armed neutrality was succeeded by retaliatory embargoes, and on the 2d of April, 1801, the battle of Copenhagen prostrated the power of Denmark. Conventions were soon afterwards effected be- tween Great Britain and the northern powers — i. e., Russia, Sweden, and Denmiark, without Prussia — -by which it was agreed that goods on neutral vessels, except contraband of war and enemy's property, should be free, and in which the following arrangements regarding convoy received the assent of the parties: (1) That the right of visit, exercised by belligerents on vessels of the parties to the armed neu- trality, s'ball be confined to public vessels of war, and never committed to privateers. (2) That trading vessels of any of the contractants, under convoy, shall lodge with the commander of the convoying vessel their passports and certificates or sea-letters, drawn up according to a ^certain form. (3) That when such vessel of convoy and a belligerent vessel meet, tliey shall ordinarily be beyond the distance of cannon- shot from one another, and that the belligerent commander shall send a boat to the neutral vessel, whereupon proofs shall be exhibited both that the vessel of convoy has a right to act in that capacity, and that ^Case of the Maria, 1 Robinson's Rep. 340-379. EXTRACTS FROM WORKS ON INTERNATIONAL LAW 109 the visiting vessel in truth belongs to the public navy. (4) This done, there shall be no visit, if the papers are according to rule. Otherwise, the neutral commander, on request of the other, shall detain the mer- chantmen for visits, which shall be made in the presence oi officers selected from the two ships of war. 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Price, $7.50. Classics of International Law This series will include the leading works on International Law, the republica- tion of which has been undertaken principally on account of the difficulty of pro- curing the texts in convenient form for scientific study. The text of each author will be reproduced photographically, so as to lay the source before the reader without the mistakes which creep into a newly printed text. An Introduction will be prefixed to each work, giving the necessary biographical details concerning its author and stating the importance of the text and its place in International Law ; tables of errata in the original will be added when necessary, and notes to clear up doubts and ambiguities or to correct mistakes in the text will be supplied. Each work will be accompanied by an English version made expressly for the series by a competent translator. James Brown Scott, Director of the Division of International Law, will supervise these publications as General Editor. ZoucHE, Richard : Juris et Judicii Fecialis, sive. Juris inter Gentes et Quaes- tionum de Eodem Explicatio. 2 vols $4.00 Vol. I. A Reproduction of the First Edition (1650), with portrait of Zouche. Introduction by Thomas E. Holland, List of Errata, and Table of Authors. Pages xvi-|-204. Vol. II. Translation of the Text, by J. L. Brierly. Pages xvii-t-186. Ay ALA, Balthazar: De Jure et Officiis Bellicis et Disciplina Militari. 2 vols $7.00 Vol. I. A Reproduction of the Edition of 1582, with portrait of Ayala. Introduction by John Westlake, etc. Pages xxvii-)-226. Vol. II. Translation of the Text, by John Pawley Bate. Pages xvi-|-245. Vattel, E. de : Le Droit des Gens. 3 vols. ... . . . $8.00 Vol. I. A Photographic Reproduction of Books I and II of the First Edition (1758), with an Introduction by Albfert de Lapradelle. Lix-|-S41 pages, and portrait 'of Vattel. Vol. II. 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Victoria, Franciscus A : Relectiones : De Indis and De Jure Belli. Intro- duction by Ernest Nys. Translated by John Pawley Bate. Price to be announced. Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 29 i I '^J~b \^\ TWO IDEALS OF GOVERNMENT PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 29 TWO IDEALS OF GOVERNMENT PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 ^iin(s>. Prefatory Note Two ideals of government face one another to-day in mortal combat : the one the ideal of the past, the other the ideal of the future. The old is strongly entrenched in Europe, the new is strongly entrenched in America. The triumph must be of one or of the other ; both can no longer exist together. The new ideal is not merely a hope and an aspiration ; it is already a fact and a practice. It has been expressed on two occasions by Abraham Lincoln, on the battlefield of Gettysburg and on assuming the presidency of the United States for the second time. It has again found a full and a noble application in the address of President Wilson to the Congress, pledging anew the American people to the American ideal, "that government of the people, by the people, and for the people, shall not perish from the earth." James Brown Scott, Director of the Division of International Law. Washington, D. C, April 6, 191 7. Contents PAGE The Declaration of Independence, 1776 1 President Lincoln's Gettysburg Address, 1863 6 President Lincoln's Second Inaugural Address, 1865 7 President Wilson's Address to Congress, April 2, 1917 9 TWO IDEALS OF GOVERNMENT. The Declaration of Independence — 1776 In Congress, July 4, iyj6. The unanimous Declaration of the thirteen united States of America. When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with' another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happi- ness. That to secure these rights. Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to in- stitute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to efifect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes ; and accordingly all experience hath shown, that man- kind are more disposed to suffer, while evils are sufiferable, than to right themselves by abolishing the forms to which they are accus- tomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under abso- lute Depotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct ob- ject' the establishment of an absolute Tyranny over these States. To prove this, let facts be submitted to a candid world. 2 TWO IDEALS OF GOVERNMENT He has refused his Assent to Laws, the most wholesome and neces- sary for the pubHc good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws f9r the accomodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. ' He has called together legislative bodies at places unusual, uncom- fortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected ; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States ; for chat purpose obstructing the Laws for Naturalization of Foreigners ; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone, for the tenure of their offices, artd the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out their substance. He has kept among us, in times of peace. Standing Armies, without the Consent of our legislature. He has affected to render the military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws ; giving his Assent to their acts of pretended Legislation : For quartering large bodies of armed troops among us : For protecting them, by a mock Trial, from Punishment for any TWO IDEALS OF GOVERNMENT 3 Murders which they should commit on the Inhabitants of these States : For cutting off our Trade with all parts of the world : For imposing taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury : For transporting us beyond Seas to be tried for pretended offences : For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instru- ment for introducing the same absolute rule into these Colonies : For taking away our Charters, abolishing our most valuable Laws, and altering f undam.entally the Forms of our Governments : For suspending our own Legislatures, and declaring themselves in- vested with Power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Pro- tection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners, of their friends and Brethren, or to fall themselves by their Hands.. He has excited domestic insurrections amongst us, and has endeav- oured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruc- tion of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Re- dress in the most humble terms : Our repeated Petitions have been answered only by repeated iiljury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People. Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdition over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these 4 TWO IDEALS OF GOVERNMENT usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States ; that they are Absolved from all Alle- giance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dis- solved ; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm re- liance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. JOHN HANCOCK. New Hampshire JosiAH Bartlett Matthew Thornton Wm. Whipple Massachusetts Bay Saml. Adams Robt. Treat Paine John Adams Eldridge Gerry Rhode Island Step. Hopkins .William Ellery Connecticut Roger Sherman Wm. Williams Sam'el Huntington Oliver Wolcott New York Wm. Floyd Frans. Lewis Phil. Livingston ^ewis Morris New Jersey Richd. Stockton John Hart Jno. Witherspoon Abra. Clark Fras. Hopkinson TWO IDEALS OF GOVERNMENT RoRT. Morris Benjamin Rush Benja. Franklin John Morton Geo. Clymer C^SAR Rodney Geo. Read Samuel Chase Wm. Paca George Wythe Richard Henry Lee Th. Jefferson Benja. Harrison Wm. Hooper Joseph Hewes Edward Rutledge Thos. Heyward^ Junr. Button Gwinnett Lyman Hall Pennsylvania Jas. Smith Geo. Taylor James Wilson Geo. Ross Delaware Tho. M'Kean Maryland Thos. Stone Charles Carroll of Carrolltont Virginia Thos. Nelson^ Jr. Francis Lightfoot Lee Carter Braxton North Carolina John Penn South Carolina Thomas Lynch, Junr. Arthur Middleton Georgia , Geo. Walton President Lincoln's Gettysburg Address, November 19, 1863 Fourscore and seven years ago our fathers brought forth upon this continent a new nation, conceived in Hberty, and dedicated to the propo- sition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who strug- gled here, have consecrated it far above our power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us, the living, rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the . last full measure of devotion; that we here highly resolve that these dead shall not have died in vain ; that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, and for the people, shall not perish from the earth. President Lincoln's Second Inaugural Address, March 4, 1865 Fellow Countrymen : At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expira- tion of four years, during which public declarations have been con- stantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured. On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war — seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came. One-eighth of the whole population were colored slaves, not dis- tributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in 8 . TWO IDEALS OF GOVERNMENT wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offenses ; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time. He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bonds- man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous alto- gether." With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations. Address of President Wilson to the Joint Session of Congress, April 2, 1917; respecting the Relations of the United States with Germany Gentlemen of the Congress : I have called the Congress into extraordinary session because there are serious, very serious, choices of policy to be made, and made im- mediately, which it was neither right nor constitutionally permissible that I should, assume the responsibility of making. On the third of February last I officially laid before you the extra- ordinary announcement of the Imperial German Government that on and after the first day of February it was its purpose to put aside all restraints of law or of humanity and use its submarines to sink every vessel that sought to approach either the ports of Great Britain and Ireland or the western coasts of Europe or any of the ports controlled by the enemies of Germany within the Mediterranean. That had seemed to be the object of the German submarine warfare earlier in the war, but since April of last year the Imperial Government had somewhat restrained the commanders of its undersea craft in con- formity with its promise then given to us that passenger boats should not be sunk and that due warning would be given to all other vessels which its submarines might seek to destroy, when no resistance was offered or escape attempted, and care taken that their crews were given at least a fair chance to save their lives in their open boats. The pre- cautions taken were meagre and haphazard enough, as was proved in distressing instance after instance in the progress of the cruel and un- manly business, but a certain degree of restraint was observed. The new policy has swept every restriction aside. Vessels of every kind, whatever their flag, their character, their cargo, their destination, their errand, have been ruthlessly sent to the bottom without warning and without thought of help or mercy for those on board, the vessels of friendly neutrals along with those of belligerents. Even hospital ships and ships carrying relief to the sorely bereaved and stricken people of Belgium, though the latter were provided with safe conduct through the proscribed areas by the German Government itself and were dis- tinguished by unmistakable marks of identity, have been sunk with the same reckless lack of compassion or of principle. 10 TWO IDEALS OF GOVERNMENT I was for a little while unable to believe that such things would in fact be done by any government that had hitherto subscribed to the humane practices of civilized nations. International law had its origin in the attempt to set up some law which would be respected and ob- served upon the seas, where no nation had right of dominion and where lay the free highways of the world. By painful stage after stage has that law been built up, with meagre enough results, indeed, after all was accomplished that could be accomplished, but always with a clear view, at least, of what the heart and conscience of mankind demanded. This minimum of right the German Government has swept aside under the plea of retaliation and necessity and because it had no weapons which it could use at sea except these which it is impossible to employ as it is employing them without throwing to the winds all scruples of humanity or of respect for the understandings that were supposed to underlie the intercourse of the world. I am not now thinking of the loss of property involved, immense and serious as that is, but only of the wanton and wholesale destruction of the lives of non-combatants, men, women, and children, engaged in pursuits which have always, even in the darkest periods of modern history, been deemed innocent and legitimate. Property can be paid for ; the lives of peaceful and innocent people can not be. The present German submarine warfare against commerce is a warfare against mankind. It is a war against all nations. American ships have been sunk, American lives taken, in ways which it has stirred us very deeply to learn of, but the ships and people of other neutral and friendly nations have been sunk and overwhelmed in the waters in the same way. There has been no discrimination. The challenge is to all mankind. Each nation must decide for itself how it will meet it. The choice we make for ourselves must be made with a moderation of counsel and a tem- perateness of judgment befitting our character and our motives as a nation. We must put excited feeling away. Our motive will not be revenge or the victorious assertion of the physical might of the nation, but only the vindication of right, of human right, of which we are only a single champion. Wlaen I addressed the Congress on the twenty-sixth of February last I thought that it would suffice to assert our neutral rights with arms, our right to use the seas against unlawful interference, our right to keep our people safe against unlawful violence. But armed neutrality, it now appears, is impracticable. Because submarines are in effect out- TWO IDEALS OF GOVERNMENT 11 laws when used as the German submarines have been used against merchant shipping, it is impossible to defend ships against their attacks as the law of nations has assumed that merchantmen would defend themselves against privateers or cruisers, visible craft giving chase upon the open sea. It is common prudence in such circumstances, grim neces- sity indeed, to endeavor to destroy them before they have shown their own intention. They must be dealt with upon sight, if dealt with at all. The German Government denies the right of neutrals to use arms at all within the areas of the sea which it has proscribed, even in the defense of rights which no modern publicist has ever before questioned their right to defend. The intimation is conveyed that the armed guards which we have placed on our merchant ships will be- treated as beyond the pale of law and subject to be dealt with as pirates would be. Armed neutrality is ineffectual enough at best; in such circumstances and in the face of such pretensions it is worse than ineffectual: it is likely only to produce what it was meant to prevent ; it is practically certain to draw us into the war without either the rights or the effectiveness of belligerents. There is one choice we can not make, we are incapable of making : we will not choose the path of submission and suffer the most sacred rights of our nation and our people to be ignored or vio- lated. The wrongs against which we now array ourselves are no common wrongs ; they cut to the very roots of human life. With a profound sense of the solemn and even tragical character of the step I am taking and of the grave responsibilities whiph it in- volves, but in unhesitating obedience to what I deem my constitutional duty, I advise that the Congress declare the recent course of the Im- perial German Government to be in fact nothing less than war against the government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it; and that it take immediate steps not only to put the country in a more thor- ough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war. What this will involve is clear. It will involve the utmost practicable cooperation in counsel and action with the governments now at war with Germany, and, as incident to that, the extension to those govern- ments of the most liberal financial credits, in order that our resources may so far as possible be added to theirs. It will involve the organi- zation and mobilization of all the material resources of the country to 12 TWO IDEALS OF GOVERNMENT supply the materials of war and sefve the incidental needs of the nation in the most abundant and yet the most economical and efficient way possible. It will involve the immediate full equipment of the navy in all respects but particularly in supplying it with the be^t means of deal- ing with the enemy's submarines. It will involve the immediate addi- tion to the armed forces of the United States already provided for by law in case of war at least five hundred thousand men, who should, in my opinion, be chosen upon the principle of univers^al liability to service, and also the authorization of subsequent additional increments of equal force so soon as they may be needed and can be handled in training. It will involve also, of course, the granting of adequate credits to the Government, sustained, I hope, so far as they can equitably be sustained by the present generation, by well conceived taxation. I say sustained so far as may be equitable by taxation because it seems to me that it would be most unwise to base the credits which will now be necessary entirely on money borrowed. It is our duty, I most respectfully urge, to protect our people so far as we may against the very serious hardships and evils which would be likely to arise out of the inflation which would be produced by vast loans. In carrying out the measures by which these things are to be accom- plished we should keep constantly in mind the wisdom of interfering as little as possible in our own preparation and in the equipment of our own military forces with the duty, — for it will be a very practical duty, — of supplying the nations already at war with Germany with the ma- terials which they can obtain only from us or by our assistance. They are in the field and we should help them in every way to be effective there. I shall take the liberty of suggesting, through the several executive departments of the Government, for the consideration of your com- mittees, measures for the accomplishment of the several objects I have mentioned. I hope that it will be your pleasure to deal with them as having been framed after very careful thought by the branch of the Government upon which the responsibility of conducting the war and safeguarding the nation will most directly fall. While we do these things, these deeply momentous things, let us be very clear, and make very clear to all the world what our motives and our objects are. My own thought has not been driven from its habitual and normal course by the unhappy events of the last two months, and TWO IDEALS OF GOVERNMENT 13 I do not believe that the thought of the nation has been altered or clouded by them. I have exactly the same things in mind now that I had in mind when I addressed the Senate on the twenty-second of Jan- uary last ; the same that I had in mind when I addressed the Congress on the third of February and on the twenty-sixth of February. Our object now, as then, is to vindicate the principles of peace and justice in the life of the world as against selfish and autocratic power and to set up amongst the really free and self-governed peoples of the world such a concert of purpose and of action as will henceforth ensure the ob- servance of those principles. Neutrality is no longer feasible or desir- able where the peace of the world is involved and the freedom of its peoples, and the menace to that peace and freedom lies in the existence of autocratic governments backed by organized force which is controlled wholly by their will, not by the will of their people. We have seen the last of neutrality in such circumstances. We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong done shall be observed among nations and their governments that are observed among the individual citizens of civilized states. W^e have no quarrel with the German people. We have no feeling towards them but one of sympathy and friendship. It was not upon their impulse that their government acted in entering this war. It was not with their previous knowledge or approval. It was a war deter- mined upon as wars used to be determined upon in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns and tools. Self-governed nations do not fill their neighbor states with spies or set the course of intrigue to bring about some critical posture of affairs which will give them an opportunity to strike and make conquest. Such designs can be successfully worked out only under cover and where no one has the right to ask questions. Cun- ningly contrived plans of deception or aggression, carried, it may be, from generation to generation, can be worked out and kept from the light only within the privacy of courts or behind the carefully guarded confidences of a narrow and privileged class. They are happily impos- sible where public opinion commands and insists upon full information concerning all the nation's aflfairs. 14 TWO IDEALS OF GOVERNMENT A steadfast concert for peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its convenants. It must be a league of honor, a partnership of opinion. Intrigue would eat its vitals away; the plottings of inner circles who could plan what they would and render account to no one would be a corruption seated at its very heart. Only free peoples can hold their purpose and their honor steady to a common end and prefer the interests of mankind to any narrow interest of their own. Does not every American feel that assurance has been added to our hope for the future peace of the world by the wonderful and hearten- ing things that have been happening within the last few weeks in Russia? Russia was known by those who knew it best to have been always in fact democratic at heart, in all the vital habits of her thought, in all the intimate relationships of her people that spoke their natural instinct, their habitual attitude towards life. The autocracy that crowned the summit of her political structure, long as it had stood and terrible as was the reality of its power, was not in fact Russian in origin, character, or purpose; and now it has been shaken off and the great, generous Russian people have been added in all their naive maj- esty and might to the forces that are fighting for freedom in the world, for justice, and for peace. Here is a fit partner for a League of Honor. One of the things that has served to convince us that the Prussian autocracy was not and could never be our friend is that from the very outset of the present war it has filled our unsuspecting communities and even our offices of government with spies and set criminal intrigues everywhere afoot against our national unity of counsel, our peace within and without, our industries and our commerce. Indeed it is now evident that its spies were here even before the war began ; and it is unhappily not a matter of conjecture but a fact proved in our courts of justice that the intrigues which have more than once come perilously near to disturbing the peace and dislocating the industries of the country have been carried on at the instigation, with the support, and even under the personal direction of official agents of the Imperial Govern- ment accredited to the Government of the United States. Even in checking these things and trying to extirpate them we have sought to put the most generous interpretation possible upon them because we knew that their source lay, not in any hostile feeling or purpose of the German people towards us (who were, no doubt as ignorant of them TWO IDEALS OF GOVERNMENT 15 as we ourselves were), but only in the selfish designs of a Government that did what it pleased and told its people nothing. But they have played their part in serving to convince us at last that that Government entertains no real friendship for us and means to act against our peace and security at its convenience. That it means to stir up enemies against us at our very doors the intercepted note to the German Minis- ter at Mexico City is eloquent evidence. We are accepting this challenge of hostile purpose because we know that in such a government, following such methods, we can never have a friend ; and that in the presence of its organized power, always lying in wait to accomplish we know not what purpose, there can be no assured security for the democratic governments of the world. We are now about to accept gauge of battle with this natural foe to liberty and shall, if necessary, spend the whole force of the nation to check and nullify its pretensions and its power. We are glad, now that we see the facts with no veil of false pretence about them, to fight thus for the ulti- mate peace of the world and for the liberation of its peoples, the Ger- man peoples included : for the rights of nations great and small and the privilege of men everywhere to choose their way of life and of obedi- ence. The world must be made safe for democracy. Its peace must be planted upon the tested foundations of political liberty. We have no selfish ends to serve. We desire no conquest, no dominion. We seek no indemnities for ourselves, no material compensation for the sacrifices we shall freely make. We are but one of the champions of the rights of mankind. We shall be satisfied when those rights have been made as secure as the faith and the freedom of nations can make them. Just because we fight without rancor and without selfish object, seek- ing nothing for ourselves but what we shall wish to share with all free peoples, we shall, I feel confident, conduct our operations as beUiger- ents without passion and ourselves observe with proud punctilio the principles of right and of fair play we profess to be fighting for. 1 have said nothing of the governments alhed with the Imperial Gov- ernment of Germany because they have not made war upon us or chal- lenged us to defend our right and our honor. The Austro-Hungarian Government has, indeed, avowed its unqualified endorsement and ac- ceptance of the reckless and lawless submarine warfare adopted now without disguise by the Imperial German Government, and it has there- fore not been possible for this Government to receive Count Tarnowski, the Ambassador recently accredited to this Government by the Im- 16 TWO IDEALS OF GOVERNMENT perial and Royal Government of Austria-Hungary; but that Govern- ment has not actually engaged in warfare against citizens of the United States on the seas, and I take the liberty, for the present at least, of postponing a discussion of our relations with the authorities at Vienna. We enter this war only where we are clearly forced into it because there are no other means of defending our rights. It will be all the easier for us to conduct ourselves as belligerents in a high spirit of right and fairness because we act without animus, not in enmity towards a people or with the desire to bring any injury or disadvantage upon them, but only in armed opposition to an irrespon- sible government which has thrown aside all considerations of humanity and of right and is running amuck. We are, let me say again, the sin- cere friends of the German people, and shall desire nothing so much as the early reestablishment of intimate relations of mutual advantage between us, — however hard it may be for them, for the time being, to believe that this is spoken from our hearts. We have borne with their present government through all these bitter months because of that friendship, — exercising a patience and forbearance which would other- wise have been impossible. W^e shall, happily, still have an opportunity to prove that friendship in our daily attitude and actions towards the millions of men and women of German birth and native sympathy who live amongst us and share our life, and we shall be proud to prove it towards all who are in fact loyal to their neighbors and to the Govern- ment in the hour of test. They are, most of them, as tiue and loyal Americans as if they had never known any other fealty or allegiance. They will be prompt to stand with us in rebuking and restraining the few who may be of a different mind and purpose. If there should be disloyalty, it will be dealt with with a firm hand of stern repression; but, if it lifts its head at. all, it will lift it only here and there and with- out countenance except from a lawless and malignant few. It is a distressing and oppressive duty, Gentlemen of the Congress, which I have performed in thus addressing you. There are, it may be, many months of fiery trial and sacrifice ahead of us. It is a fearful thing to lead this great peaceful people into war, into the most terrible and disastrous of all wars, civilization itself seeming to be in the bal- ance. But the right is more precious than peace, and we shall fight for the things which we have always carried nearest our hearts, — for democracy, for the right of those who submit to authority to have a TWO IDEALS OF GOVERNMENT 17 voice in their own governments, for the rights and Uberties of small nations, for a universal dominion of right by such a concert of free peoples as shall bring peace and safety to all nations and make the world itself at last free. To such a task we can dedicate our lives and our fortunes, everything that we are and everything that we have, with the pride of those who know that the day has come when America is priv- ileged to spend her blood and her might for the principles that gave her birth and happiness and the peace which she has treasured. God help- ing her, she can do no other. r'^vuvE/f^^ PUBLICATIONS OF THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE Publications marked (f) are out of print. Publications marked (*) are sold by the Clarendon Press, Oxford, England, and the American Branch of the Oxford University Press, 35 West 32nd Street, New York, N. Y. , Secretary's Office tYear Book for 1911; Year Book for 1912; Year Book for 1913-1914; Year Book for 1915 ; fYear Book for 1916. Division of Intercourse and Education No. 1 Some Roads Towards Peace : A report on observations made IN China and Japan in 1912. By Dr. Charles W. Eliot. vi— 88 p. tNo. 2 German 'International Progress in 1913. By Professor Dr. WiLHELM Paszkowski. iii — 11 p. No. 3 Educational Exchange with Japan. By Dr. Hamilton W. Mabie. 8 p. tNo. 4 Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, ix — 418 p., illus., maps. tNo. 5 Intellectual and Cultural Relations Between the United States and the Other Republics of America. By Dr. Harry Erwin Bard, iv — 35 p. No. 6 Growth of Internationalism in Japan. By T. Miyaoka. iii — 15 p. tNo. 7 For Better Relations with our Latin American Neighbors : A Journey to South America. [English Edition.] By Robert Bacon, viii — 168 p. No. 8 The Same, in the Original Spanish, Portuguese and French. viii — 221 p. A second edition of Mr. Bacon's Report, containing Nos. 7 and 8 in one volume, has also been published. No. 9 Former Senator Burton's Trip to South America. By Otto Schoenrich. iii — 40 p. No. 10 Problems About War for Classes in Arithmetic. By David Eugene Smith, Ph.D., LL.D. 23 p. No. 11 Hygiene and War; Suggestions for Makers of Textbooks AND for Use in Schools. 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Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 30 , THE EFFECT OF DEMOCRACY ON INTERNATIONAL LAW OPENING ADDRESS BY ELIHU ROOT AS PRESIDENT OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT THE ELEVENTH ANNUAL MEETING OF THE SOCIETY IN WASHINGTON, APRIL 26, 1917 PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 Cornell University Law Library. THE GIFT OF .4^<3L,,g^<,d«^r<^ " Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW Pamphlet No. 30 THE EFFECT OF DEMOCRACY ON INTERNATIONAL LAW OPENING ADDRESS BY ELIHU ROOT AS PRESIDENT OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT THE ELEVENTH ANNUAL MEETING OF THE SOCIETY IN WASHINGTON, APRIL 26, 1917 PUBLISHED BY THE ENDOWMENT WASHINGTON, D. C. 1917 ^ Z^n )S "^V.M/_^/?^/N, THE EFFECT OF DEMOCRACY ON INTERNATIONAL LAW In trying to estimate the future possibilities of International Law, and to form any useful opinion as to the methods by which the law can be made more binding upon international conduct, serious diffi- culties are presented in the unknown quantities introduced by the great War, which is steadily drawing into its circle the entire civilized world. Hitherto, we have been unable to form any real judgment as to which of the two warring groups of nations will succeed in the end. Our expectations and beliefs upon that question have been the products of our sympathies and our hopes and of an optimism for which it is now happily more easy to find just grounds than ever before. Nor have we been able to measure the effects of the War upon national character, and the probable results in national modes of thought and conduct. A just estimate of such forces is not easy. The modem era of nationalities has been marked by three great convulsions which turned the minds of all civilized men towards peace, and led them to seek means to make peace secure. The Thirty Years' War produced the Peace of Westphalia and the system of independent nationalities in Europe, and it produced Grotius and the science of International Law ; and practically every power in Europe except the Ottoman was a party to the agreement to maintain the system thus established. Yet, the century which followed ex- hibited the most cynical and universal disregard for the law, and for the Treaty, and for all treaties. The Napoleonic wars produced the Treaty of Vienna and the Holy Alliance. That sincere but misguided effort sought to fix the limits and regulate the conduct of the nations of Europe in accordance with the principles which the treaty-making powers then believed to be in keeping with right and justice, and to be effective for the permanent peaceful organization of the community of nations, and it sought to maintain the status quo by the establishment of a League to Enforce Peace in accordance with their conception. Yet, the arrangements were conceived by minds imbued with the spirit of the past and became of no effect when tested by the changes wrought by the spirit of the future. The old bottles were filled with new wine and could not contain it ; so, the scheme came to naught. Both of these efforts to secure permanent peace under the rule of law failed because the unappreciated forces working for change and growth became stronger than the gradually decreasing restraint of agreements to maintain a fixed and immutable relation of territory and opportunities among the nations. It is reasonable to infer that a similar result must follow any attempt to base a system of interna- tional law upon definite, and rigid limitations devised to meet the ex- pediency of the moment. The law of life is growth, and no generation can prevent the growth of future generations by fixing in accordance with its ideas the specific conditions under which they are to live. As we look back, we see a multitude of ancient wrongs protected by the law of nations, naturally enough, because the law has been made by powers in possession. We have a vague impression that international wrongs are cured by time. That is not always so. There is no inter- national statute of limitations. Time alone cures no wrong. The people to whom wrong is done may be destroyed, as the Turks are destroying the Armenians ; or the wronged people may be reconciled to the nev/ conditions like the Saxons in England; but, for example, the unf orgiven wrong of the Turk in Europe, and the unf orgiven wrong of the partition of Poland, are always forces working against the law that protects therii. The maintenance or the redress of such wrongs is merely a question of relative power. The rise in power of iQiristian Europe, and the decadence of the Ottoman Empire, make inevitable the complete refluence of the tide which once reached the walls of Vienna, and even to the valley of the Loire. No human laws or con- ventions could bind the forces which work through centuries to achieve such results. The futility of efforts to control such movements of mankind by the short-sighted policies of the passing day can not be better illustrated than by the misplaced energy and sacrifice of the Crimean War and the fatuous ingenuity of the Congress of Berlin which sought to bolster up and preserve the sovereignty of the Turk. As we consider how it may be possible to reestablish the law of nations upon a durable basis, we must realize that past experience indicates that no system of law which depends upon the physical par- tition of the earth dictated by the expediency of the time, no law which must be broken in order that hving wrongs shall be redressed, or in order that the new ideas of the future may find room for growth,' can be permanent. We should therefore inquire whether the political and social condi- tions to which we may reasonably look forward after the war, the forces that are to move mankind, the trend of development, will be such as to enable us in our day to escape the errors of our predecessors, and to establish upon some basis of principle a system of international law which can be maintained and enforced. The greatest change in the conditions of national life during the past century has been in the advance and spread of democratic government, and the correlative decrease in the extent and power of autocratic and dynastic governments. It is impossible to regard the advance of democrac}' as being merely local or temporary. It has been the result of long-continued and persistent progress varying in different countries according to the character of the people, and the nature of the ob- stacles to be overcome, but, in its nature, essentially the same in all countries. England in her steady-going undemonstrative way has moved alopg from government by a king claiming divine right to a Commons repre- senting popular right through the revolution of 1688, which established the nation's right to choose its king, through that civil war over the rights of British subjects known as the American Revolution, through chartism and Catholic emancipation, the R,eform Bill of 1832, the franchise extension of 1867, the abandonment of the king's veto power, and the establishment of the Commons' right to pass bills over the rejection of the House of Lords. France in her own different way with much action and reaction traveled towards the same goal through the States General and the Constituent Assembly, through the Reign of Terror, and her amazing defense of the first Republic against all Europe, through the heroic surgery of Napoleon's career, the Bourbon restoration, the assertion of her right to choose her own king in 1830, and the assertion of her right to dispense with a king in 1848, the plebiscite and the second Empire, the Commune and the third Republic, which has grown in stability and capacity for popular government until the steadiness and self-control and noble devotion of the French people under suffering and sacrifice have come to be one of the amazing revelations of these terrible vears. Italy struggling out of the control of a multitude of petty tyrants sustained by foreign influence established her newly-won unity and independence upon the basis of representative parliamentary govern- ment. Spain has regained and strengthened the constitution of which Ferdinand VII and the Holy Alliance deprived her. Throughout the greater part of the world constitutions have become the order of the day. Switzerland, Belgium, Holland, Portugal, all Scandinavia, all Latin-America, have established their governments upon constitutional bases. Japan, emerging from her military feudal- ism, makes her entry into the community of civilized nations under a constitutional government. China, throwing off the domination of the Manchu, is striving to accustom her long-suffering and submissive millions to the idea of constitutional right. The great self-governing British Dominions bound to the Mother Coimtry only by ties of tradi- tion and sentiment have shown that free Democracies can respond to moral forces with a splendid power of loyalty that no coercion could inspire. And, now, Russia, extirpating the government which has been for modern times the typical illustration of autocracy, is engaged in establishing the new self-control of that vast Empire upon the basis of universal suffrage and republican institutions. The political conception of control from above by monarchs exer- cising divine right is not merely disputed by philosophers and reform- ers ; it has faded and grown dim in the minds of the millions of men in the civilized nations, and in its place has spread throughout the world the political conception of constitutional government exercising control by authority of the peoples who are governed. The persistence and extent of this change in the political and social conditions of national life forbid the idea that it is the child of indi- vidual minds or local provocations or temporary causes, and distinguish it as one of those great and fundamental movements of the human mind which no power can control, and which run their course inevitably to the end in an unknown future. The existence and assured continu- ance of this process of development of democracy is the great fact forecasting the future conditions under which the effort to reinstate the law of nations is to be made. What is to be the effect of this change in conditions upon the pos- sibility of making international law relatively permanent? In consid- ering this question, some facts can be clearly perceived. The substitution of a democratic for an autocratic regime removes the chief force which in the past has led nations to break over and destroy the limitations of law; that is, the prosecution of dynastic policies.^ Such policies in general have in view the increase of terri- tory, of dominion, of power, for the ruler and the military class or aristocracy which surrounds the ruler and supports his throne. The benefit of the people who are ruled is only incidentally — if at all — involved. If we turn back to the causes which destroyed the peace of the world under the dispositions made by the Treaty of Westphalia, the mind naturally rests on the War of the Spanish Succession which drenched Europe in blood through the first decade of the eighteenth century, and ended in the Treaty of Utrecht only when Louis XIV was reduced to exhaustion. What was that about ? Nothing more or less than the question what royal house should have its power increased by a marriage that would ultimately enable it to control the territory and wield the power of Spain for its own aggrandizement. The interests of the people of Spain or the people of France or of any other country furnished no part of the motive power. What caused the War of the Austrian Succession a generation later, when Frederick (called "The Great") marched his army into Silesia to wrest that province from the feeble hands of young Maria Theresa in flagrant violation of his solemn promise to protect her title under the covenants of the pragmatic sanction, and when the nations of Europe gathered like buzzards about one dying, eager to share in the dismemberment of the possessions of the House of Austria? It was the desire of royal princes to increase their power and glory regardless of law and justice, and the welfare of peoples, and, incidentally, a desire by some states to prevent that increase, lest the same rule of spoliation might more readily be applied to them. Underlying the whole age-long struggle to maintain the balance of power in Europe has been the assumption that increased power would be used for aggression and to secure further increase of power by the conquest of territory and the subjection of its inhabitants; and the common experience of mankind under the autocratic system of govern- ment by divine right has justified the assumption. It was a perfect understanding of this characteristic of autocratic government that inspired the words of President Monroe's famous declaration: "We should consider any attempt on their part (the European powers) to extend their system to any portion of this hemisphere as dangerous to our peace and safety." 5 Against the deep and settled purpose of a ruling family or a ruling aristocratic class to enlarge its power, continuing from generation to generation, usually concealed until the favorable moment for action comes, always justified or excused by specious pretexts, the advocates of peace, or justice, or humanity, or law, are helpless. All other causes of war can be reached. International misunderstandings can be ex- plained away. Dislikes and suspicions can be dissipated by intercourse, and better knowledge, and courtesy, and kindness. Considerate justice can prevent real causes of war. Rules of action to prevent controversy maiy be agreed upon by diplomacy and conferences and congresses. Honest differences as to national rights and duties may be settled by arbitration, or judicial decision; but, against a deep and persistent purpose by the rulers of a great nation to take away the territory of others, or to reduce others to subjection for their own aggrandizement, all these expedients are of no avail. The Congresses of Westphalia, of Vienna, of Berlin, and a multitude of others less conspicuous, have sought to curb the evil through setting limits upon power by treaty. They have all failed. The Peace Conferences at The Hague have sought to diminish the evil by universal agreement upon rules of action. The rules and the treaties have become "scraps of paper." The progress of democracy, however, is dealing with the problem by destroying the type of government which has shown itself incapable of maintaining respect for law and justice and resisting the tempta- tions of ambition, and by substituting a new form of government, which in its nature is incapable of proceeding by the same methods, and necessarily responds to different motives and pursues different objects from the old autocratic offenders. Only when that task has been substantially accomplished will the advocates of law among nations be free from the inheritance of former failure. There will then be a new field open for a new trial, doubtless full of difficulties of its own, but of fair hope and possibilities of success. Self-governing democracies are indeed liable to commit great wrongs. The peoples who govern themselves frequently misunder- stand their international rights, and ignore their international duties. They are often swayed by prejudice, and blinded by passion. They are swift to decide in their own favor the most difficult questions upon which they are totally ignorant. They are apt to applaud the jingo politician who courts popularity by public insult to a friendly people, and to condemn the statesman who modifies extreme demands through the concessions required by just consideration for the rights of others. All these faults, however, are open and known to the whole world. The opinions and motives from which they proceed, the real causes of error, can be reached by reason, by appeal to better instincts, by public discussion, by the ascertainment and dissemination of the true facts. There are some necessary features of democratic self-government which tend towards the progressive reduction of tendencies to inter- national wrong-doing. One is that democracies are absolutely depen- dent for their existence upon the preservation of law. Autocracies can give commands and enforce them. Rules of action are a con- venience, not a necessity for them. On the other hand, the only atmos- phere in which a democracy can live between the danger of autocracy on one side and the danger of anarchy on the other is the atmosphere of law. Respect for law is the essential condition of its existence ; and, as in a democracy the law is an expression of the people's own will, self-respect, and personal pride, and patriotism demand its observance. An essential distinction between democracy and autocracy is that while the government of an autocracy is superior to the law, the govern- ment of a democracy is subject to the law. The conception of an international law binding upon the governments of the world is there- fore natural to the people of a democracy, and, any violation of that law which they themselves have joined in prescribing is received with disapproval, if not with resentment. This is well illustrated by the attitude of the people of the separate States of the American Union towards the decisions of the Supreme Court of the United States passing upon the exercise of power by State Governments. Physical force has never been used to compel conformity to those decisions. Yet, the democratic people of the United States have answered Jack- son's contemptuous remark, "John Marshall has made his decision; now let him enforce it." The answer is that it is the will of self- governed democracy to obey the law, which it has itself established, and the decisions of the Great Tribunal which declares the law con- trolling State action will be accepted and observed by common consent and enforced by the power of public opinion. Another necessary feature of democratic government is that the exercise of the power of popular self-government is a continual train- ing of all citizens in the very qualities which are necessary for the maintenance of law between nations. Democratic government can not be carried on except by a people who acquire the habit of seeking true information about facts, of discussing questions of right and wrong, of interest, and of possible consequences, who have kindly con- sideration for opposing opinions, and a tolerant attitude towards those who differ. The longer a democracy preserves itself through the exercise of these qualities, the better adapted it is to apply the same methods in the conduct of its international business, and the result is a continually increasing certainty that international law will be observed in a community of democratic nations. The most important difference, however, between the two forms of government is that democracies are incapable of holding or executing those sinister policies of ambition which are beyond the reach of argu- ment and the control of law. A democracy can not hold such policies, because the open and public avowal and discussion which must precede their adoption by a democracy is destructive of them; and it can not execute such policies because it uniformly lacks the kind of disciplined efficiency necessary to diplomatic and military affirmatives. The set- tled and continuous policies of a democracy are defensive. Nearly ninety years ago De Tocqueville in his survey of "Democracy in Amer- ica" recorded what he deemed to be a weakness of our system of government in foreign affairs. He said: Foreign politics demand scarcely any of those qualities which a democracy possesses, and they require on the contrary the per- fect use of almost all those faculties in which it is deficient. Democracy is favorable to the increase of the internal resources of the State ; it tends to diffuse a moderate independence ; it pro- motes the growth of public spirit, and fortifies the respect which is entertained for law in all classes of society; and these are advantages which only exercise an indirect influence over the relations which one people bears to another. But a democracy is unable to regulate the details of an important undertaking, to persevere in a design, and to work out its execution in the presence of serious obstacles. It can not combine its measures with secrecy, and it will not await their consequences with patience. These are qualities which more especially belong to an individual or to an aristocracy, and they are precisely the means by which an individual people attains to a predominant position. So long as foreign affairs were to continue as they were carried on in his day, De Tocqueville was doubtless right. It is because democ- racies are not fitted to conduct foreign affairs as they were conducted in De Tocqueville's day that the prevalence of democracy throughout the world makes inevitable a change in the conduct of foreign affairs. Such affairs when conducted by democratic governments must neces- sarily be marked by the absence of those undertakings and designs, and those measures combined with secrecy, prosecuted with persever- ance for which he declares democracies to be unfit. This characteristic of popular governments is well illustrated by the hundred years of peace which we are all rather proud of preserving throughout the 3,000 miles of boundary between Canada and the United States without fortifications or ships of war or armies. There have been many occasions when the tempers of the men on either side of the line were sorely tired. The disputes regarding the Northeastern Boundary, the Oregon Boundary, the Alaska Boundary, were acute; the affair of the Caroline on the Niagara River, the Fenian Raid upon Lake Champlain, the enforcement of the Fisheries regulations, were exasperating and serious, but upon neither side of the boundary did democracy harbor those sinister designs of aggrandizement and ambi- tion which have characterized the autocratic governments of the world. C^n neither side was there suspicion of any such designs in the democ- racy across the border. The purpose of each nation was merely to stand up for its own rights, and so reason has always controlled, and every question has been settled by fair agreement, or by arbitral deci- sion; and, finally, for the past eight years a permanent International Commission with judicial powers has disposed of the controversies arising between the citizens of the two countries along the border as unobtrusively and naturally as if the questions arose between citizens of Maryland and Virginia. Such has been the course of events, not because of any great design or far-seeing plan, but because it is the natural working of democratic government. The incapacity of democracies to maintain policies of aggression may be fairly inferred from the extreme reluctance with which they incur the expense and make the sacrifices necessary for defense. Cher- ishing no secret designs of aggression themselves, they find it difficult to believe in the existence of such designs on the part of other nations. Only imminent and deadly peril awakens them to activity. It was this obstinate confidence in the peaceable intentions of all mankind which met Lord Roberts (honored, trusted and beloved as he was) when long before the present war he vainly sought to awaken the people of England to the danger that he saw so plainly in Germany's stupendous preparation for conquest. It is well known that when the war came France was almost upon the verge of diminishing her army by a reduction in the years of service. In our own country a great people, virile, fearless, and loyal, have remained indifferent to all the voices crying in the wilderness for preparation, because the American people could not be made to believe that anything was going to happen inconsistent witlj the existence everywhere of those peaceful purposes of which they themselves were conscious. There is a radical incompatibility between popular self-government and continuous military discipline, for military control is in itself despotic. As compared with military autocracies, the normal condition of democracies is a condition of inferior military efficiency. This invariable characteristic of democracy leaves it no option in its treat- ment of autocracy. The two kinds of government can not live perma- nently side by side. So long as military autocracy continues, democ- racy is not safe from attacks, which are certain to come some time, and certain to find it unprepared. The conflict is inevitable and uni- versal; and it is a I'outrance. To be safe democracy must kill its enemy when it can and where it can. The world can not be half democratic and half autocratic. It must be all democratic or all Prussian. There can be no compromise. If it is all Prussian, there can be no real international law. If it is all democratic, international law honored and observed may well be expected as a natural develop- ment of the principles which make democratic self-government possible. The democracies of the world are gathered about the last strong- hold of autocracy, and engaged in the conflict thrust upon them by dynastic policy .pursuing the ambition of rulers under claim of divine right for their own aggrandizement, their own glory, without regard to law or justice, or faith. The issue to-day and to-morrow may seem uncertain, but the end is not uncertain. No one knows how soon the end will come, or what dreadful suffering and sacrifice may stand between; but the progress of the great world movement that has doomed autocracy can not be turned back, or defeated. That is the great peace movement. There the millions who have learned under freedom to hope and aspire for better things are paying the price that the peaceful peoples of the earth may live in security under the protection of law based upon all embracing justice and supreme in the community of nations. 10 PUBLICATIONS OF THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE Publications marked (f) are out of print. Publications marked (*) are. sold by the Clarendon Press, Oxford, England, and the American Branch of the Oxford University Press, 35 West 32nd Street, New York, N. Y. Secretary's Office tYear Book for 1911; Year Book for 1912; Year Book for 1913-1914; Year Book for 1915 ; fYear Book for 1916. Division of Intercourse and Education No. 1 Some Roads Towards Peace: A report on observations made IN China and Japan in 1912. By Dr. Charles W. Eliot. vi— 88 p. tNo. 2 German International Progress in 1913. By Professor Dr. Wilhelm Paszkowski. iii — 11 p. No. 3 Educational Exchange with Japan. By Dr. Hamilton W. Mabie. 8 p. tNo. 4 Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, ix — 418 p., illus., maps. tNo. 5 Intellectual and Cultural Relations Between the United States and the Other Republics of America. By Dr. Harry Erwin Bard, iv — 35 p. No. 6 Growth of Internationalism in Japan. By T. Miyaoka. iii — 15 p. tNo. 7 For Better Relations with our Latin American Neighbors: A Journey to South America. [English Edition.] By Robert Bacon, viii — 168 p. No. 8 The Same, in the Original Spanish, Portuguese and French. viii— 221 p. A second edition of Mr. Bacon's Report; containing Nos. 7 and 8 in one volume, has also been published. No. 9 Former Senator Burton's Trip to South America. By Otto SCHOENRICH. iii — 40 p. No. 10 Problems About War for Classes in Arithmetic. By David Eugene Smith, Ph.D., LL.D. 23 p. No. 11 Hygiene and War; Suggestions for Makers of Textbooks AND FOR Use in Schools. By George Ellis Jones, Ph.D. Division of Economics and History ♦Nationalism and War in the Near East. By a Diplomatist. Edited by Lord Courtney of Penwith. Published by the Qarendon Press, Oxford, England, xxvi — 434 p. Price, $4.15. ♦The Industrial Development and Commercial Policies of the Three Scandinavian Countries. By Povl Drachmann. Edited by Harald Westergaard, LL.D. Published by the Clarendon Press, Oxford, England. 130 p. Price, $1.50. ♦Losses of Life in Modern Wars. Austria-Hungary; France. By Gaston Bodart, LL.D. — Military Selection and Race De- terioration. By Vernon Lyman Kellogg. Edited by Harald Westergaard, LL.D. Published by the Clarendon Press, Ox- ford, England, x— 207— 6 p. . Price, $2.00. ♦Economic Protectionism. By Josef Grunzel. Edited by Eugen von Philippovich. Published by the Clarendon Press, Oxford, England, xiii— 357— 6 p. Price, $2.90. ♦Epidemics Resulting from Wars. By Dr. Friedrich Prinzing. Edited by Harald Westergaard, LL.D. Published by the Clarendon Press, Oxford, England, xii— 340— 6 p. Price, $2.50. ♦The Colonial Tariff Policy of France. By Dr. Arthur Girault. Edited by Charles Gide. Published by the Clarendon Press, Oxford, England, viii— 305— 6 p. Price, $2.50. Division of International Law Pamphlet Series No. 1 Arbitrations and Diplomatic Settlements of the United States, vii — ^21 p. No. 2 Limitation of Armament on the Great Lakes. The report of John W. Foster, Secretary of State, December 7, 1892. vii— 57 p. No. 3 Signatures, Ratifications, Adhesions and Reservations to the Conventions and Declarations of the First and Sec- ond Hague Peace Conferences, vii — 32 p. No. 4 The Hague Conventions of 1899 (I) and 1907 (I) for the Pacific Settlement of International Disputes, iv — 48 p. No. 5 The Hague Conventions of 1899 (II) and 1907 (IV) respect- ing THE Lav/s and Customs of War on Land, iv — 33 p. No. 6 The Hague Conventions of 1899 (III) and 1907 (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, iv — 19 p. No. 7 The Hague Declarations of 1899 (IV, 1) and 1907 (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons. iv^5 p. No. 8 The Hague Declaration (IV, 2) of 1899 concerning As- phyxiating Gases, iv — 2 p. No. 9 The Hague Declaration (IV, 3) of 1899 concerning Expand- ing Bullets, iv — 2 p. No. 10 The Final Acts of the First and Second Hague Peace Con- ferences, together with the Draft Convention on a Ju- dicial Arbitration Court, iv — 40 p. No. 11 The Hague Convention (II) of 1907 ■ respecting the Limita- tion of the (Employment of Force for the Recovery of Contract Debts, iv — 7 p. No. 12 The Hague Convention (III) of 1907 relative to the Opening OF Hostilities, iv — 4 p. No. 13 The Hague Convention (V) or 1907 respecting the Rights AND Duties of Neutral Powers and Persons in Case of War on Land, iv — 8 p. No. 14 The Hague Convention (VI) of 1907 relating to the Status of Enemy Merchant Ships at the Outbreak of Hostili- ties, iv — 5 p. No. 15 The Hague Convention (VH) of 1907 relating to the Con- version of Merchant Ships into War-ships. iv^S p. No. 16 The Hague Convention (VIII) of 1907 relative to the Lay- ing of Automatic Submarine Contact Mines, iv — 6 p. No. 17 The Hague Convention (IX) of 1907 concerning Bombard- ment BY Naval Forces in Time of War. iv — 6 p. No. 18 The Hague Convention (XI) of 1907 relative to Certain Restrictions with regard to the Exercise of the Right OF Capture in Naval War. iv — 6 p. No. 19 The Hague Convention (XII) of 1907 relative to the Crea- tion OF AN International Prize Court, iv — 21 p. No. 20 The Hague Convention (XIII) of 1907 concerning the Rights and Duties of Neutral Powers in Naval War. iv — 11 p. No. 21 The Geneva Convention of 1906 for the Amelioration of the Condition of the Wounded in Armies in the Field, iv — 17 p. No. 22 Documents Respecting the Limitation of Armaments, v — 32 p. No. 23 Official Communications and Speeches Relating to Peace Proposals, vi — 100 p. No. 24 Documents Relating to the Controversy over Neutral Rights BETWEEN the United States AND France, 1797-1800. vii — 91 p. No. 25 Opinions of the Attorneys General and Judgments of the Supreme Court and Court of Claims of the United States Relating to the Controversy Over Neutral Rights Be- tween THE United States and France, 1797-1800. v — 340 p. (4) No. 26 Opinions of Attorneys General, Decisions of Federal Courts, and Diplomatic Correspondence Respecting the Treaties OF 1785, 1799 AND 1828, Between the United States and Prussia, vi— 158 p. (4) No. 261 Supplement to Pamphlet No. 26. No. 27 Official Documents Bearing on the Armed Neutrality of 1780 AND 1800. X— 295 p. (4) No. 28 Extracts from American and Foreign Works on Interna- tional Law Concerning the Armed Neutrality of 1780 and 1800. vi— 109. (4) Books ♦The Hague Conventions and Declarations of 1899 and 1907, 2d. ed. Edited by James Brown Scott, Director, xxxiii— 303 p. Price, $2.00. *Las Convenciones y Declaraciones de la Haya de 1899 y 1907. Edited by James Brown Scott, Director, xxxv— 301 p. Price, $2.00. *The Freedom of the Seas. A dissertation by Hugo Grotius. Trans- lated with a revision of the Latin text of 1633, by Ralph van DSraan Magoffin, Ph.D. Edited by James Brown Scott, Di- rector. XV— 83 p. (Parallel pp.) Price, $2.00. ♦Instructions to the American Delegates to the Hague Peace Con- ferences AND Their Official Reports. Edited by James Brown Scott, Director, v— 138 p. Price, $1.50. ♦The Status of the International Court of Justice, with an appendix of addresses and official documents, by James Brown Scott. V— 93 p. Price, $1.50. *An International Court of Justice, by James Brown Scott, ix — 108 p. Price, $1.50. ♦Recommendations on International Law and Official Commentary Thereon of the Second Pan American Scientific Congress HELD IN Washington, December 27, 1915-January 8, 1916. Edited by James Brown Scott, Director. vii— S3 p. Price, $1.00. ♦An Essay on a Congress of Nations for the Adjustment of Inter- national Disputes without Resort to Arms, by William Ladd. Reprinted from the original edition of 1840, with an introduction by James Brown Scott. 1 — 162 p. Price, $2.00. ♦The Hague Court Reports, comprising the awards, accompanied by syllabi, the agreements for arbitration, and other documents in each case submitted to the Permanent Court of Arbitra- tion and to commissions of inquiry under the provisions of the Conventions of 1899 and 1907 for the pacific settlement of international disputes. Edited by James Brown Scott, Di- rector, cxi — 664 p. Price, $3.50. ♦Resolutions of the Institute of International Law Dealing with THE Law of Nations, with an historical introduction and ex- planatory notes. Collected and translated under the super- vision of and edited by James Brown Scott, Director, xli — 261 p. Price, $2.00. ♦Diplomatic Documents Relating to the European War. Edited by James Brown Scott. 2 vols. Price, $7.50. Classics of International Law This series will include the leading works on International Law, the republica- tion of which has been undertaken principally on account of the difficulty of pro- curing the texts in convenient form for scientific study. The text of each author will be reproduced photographically, so as to lay the source before the reader without the mistakes which creep into a newly printed text. An Introduction will be prefixed to each work, giving the necessary biographical details concerning its author and stating the importance of the text and its place in International Law ; tables of errata in the original will be added when necessary, and notes to clear up doubts and ambiguities or to correct mistakes in the text will be supplied. Each work will be accompanied by an English version made expressly for the series by a competent translator. James Brown Scott, Director of the Division of International Law, will supervise these publications as General Editor. ZoucHE, Richard : Juris et Judicii Fecialis, sive. Juris inter Gentes et Quaes- tionum de Eodem Explicatio. 2 vols. Price, $4.00. Vol. I. A Reproduction of the First Edition (1650), with portrait of Zouche. Introduction by Thomas E. Holland, List of Errata, and Table of Authors, xvi — 204 p. Vol. II. Translation of the Text, by J. L. Brierly. xvii — 186 p. , Ayala, Balthazar : De Jure et Officiis Bellicis et Disciplina Militari. 2 vols. Price, $7.00. Vol. I. A Reproduction of the Edition of 1582, with portrait of Ayala. Introduction by John Westlake, etc. xxvii — 226 p. ' Vol. II. Translation of the Text, by John Pawley Bate, xvi— -245 p. Vattel, E. de: Le Droit des Gens. 3 vols. Price, $8.00. Vol. I. A Photographic Reproduction of Books I and II of the First Edition (1758), with an Introduction by Albert de Lapradelle. lix — 541 p. and portrait of Vattel. Vol. II. A Photographic Reproduction of Books III and IV <^ the First Edition (17S8). xxiv— 376 p. Vol. III. Translation of the Edition of 1758 (by Charles G. Fenwick), with translation (by G. D. Gregory) of Introduction by Albert de Lapradelle. Ixxxviii — 398 p. Rachel, Samuel: De Jure Naturae et Gentium Dissertationes. Edited by Ludwig von Bar. 2 vols. Price, $4.00. Vol. I. A Reproduction of the Edition of 1676, with portrait of Rachel, Introduction by Ludwig von Bar, and List of Errata. 16a — x — 335 p. Vol. II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited. 16a— iv— 233 p. Textor, Johann Wolfgang: Synopsis Juris Gentium. Edited by Ludwig von Bar. 2 vols. Price to be announced. Vol. I. A Reproduction of the First Edition (1680), with portrait of Textor, Introduction by Ludwig von Bar, and List of Errata. 28a— vi— 148— 168 p. Vol. II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited. 26a— v— 349 p. Victoria, Franciscus A: Relectiones : De Indis and De Jure Belli. Intro- duction by Ernest Nys. Translated by John Pawley Bate. Price to be announced.