Whatever the colonies claimed; however their acts seemed to savor of sovereignty; we may safely say that no one of them possessed it, and repeat our original statement that the only International Law which they came in contact with was that recognized and practised by their sovereigns in Europe, for none could be originated here.

What are the characteristics of this law in Europe as it developed during the period under review?

The first half of the eighteenth century was not a time of special growth or importance in the history of International The eighteenth Law. England, having won maritime supremcentury. acy, was naturally averse to any relaxation of the rules of naval warfare as they had come down from the Consolato del Mare. Her tendency was just the opposite. Thus the addition of naval stores to the list of contraband, begun in the previous century, was retained. So, too, the "Rule of the War of 1756," for which, likewise, there was precedent, forbade the neutral merchantman to engage in a belligerent's colonial trade, under penalty of loss of the ship, on the ground that it was thus identified with the enemy's interest and stamped with his character as much as by a license to trade. This was harsher than her previous practice, which had confiscated enemy's goods in a neutral ship, but not the ship itself.

On the other hand, the attempt of Prussia to stand up for neutral privilege, excellent in itself, was vitiated by the unsound reasons offered to justify her action. Prussia asserted the "free ships make free goods " rule, basing it on the theory that a merchant-ship was territory, and interference with her on the high seas a violation of sovereignty, which in time of war was absurd. Unable to maintain this theory, Prussia's reprisal, the confiscation of so much of a government loan as was owned in England, was deplorable, the last instance of a bad practice.

War on land was somewhat milder than in the previous century, in respect both to persons and property. Quarter was usually given; non-combatants were spared; their prop

erty fared better also, for armies had their own supply trains instead of living off the country; yet ravaging was lawful.

Thus, generally speaking, this period was one of slow preparation for the progress in the law which was to come; namely, for the predominance of neutral influence and of humanitarian ideas applied to war; but these changes were yet hardly foreshadowed. It is not, therefore, probable that the American colonies between 1700 and 1775, had they been independent sovereignties, would or could have done more than to assist in planting the seed which was to germinate later.

1

Let us turn now to the new status brought about by the declaration of American independence. From this act dates the beginning of the internal sovereignty of a true American State, whose external sovereigntyi. e., its right to enter into relations with other States was recognized by France in her treaties of 1778, by Great Britain in the Treaty of Peace of 1783. From this moment appear such expression of law and policy, such assertion of rights as have had an appreciable influence upon the growth of International Law. For then, first, were there true international relations needing to be defined, and an independent State trying to perform its duties and to insist upon its rights, in accordance with the rules of International Law, upon this continent. And recognizing the binding force of these, the Constitution of 1787 gave Congress power to define and punish offences against them; 2 while the Supreme Court of the United States has declared International Law to be a part of the law of the land. This incorporation came about through the fact that the law of nations was part of the common law of England; and independent of this, through the recognition of Congress during the War of the Revolution.4

1 McIlvaine v. Coxe's Lessee, 4 Cranch's Reports, 212.

2 Constitution of the United States, Art. I. sec. 8.

8 The Nereid, 9 Cranch's Reports, 388-423; Bentzon v. Boyle, 9 Cranch's Reports, 191, 198.

4 Kent's Commentaries, I. 1.

Effect of national

But there is still one important fact to be kept in mind in discussing the growth of International Law in the United States. Unlike other kinds of law, it cannot come into being from the action of a single State. tendencies. It is the result of the consent of many States. We must not look, therefore, for anything more than influences, tendencies, policies tending to introduce or expand a certain principle, which must finally depend for its adoption upon general assent. Such influences may be individual or national; they may be scientific only, or may spring from a permanent, well-considered policy of the State. Hence we cannot measure growth in International Law as one might the stature of a youth, or the girth of a tree, by a foot-rule. We must rather deduce the fact of its growth in any country from the national tendency of that country, and from the further fact of growth in a wider political society. This will be clearer if we take an example; for instance, the Monroe Doctrine, so often alluded to as America's peculiar contribution to International Law. Strictly speaking, the Monroe Doctrine is not a rule of International Law, because it has not been accepted or reciprocally adopted by all nations. But as an illustration of the legitimate expansion of the fundamental right of self-defence, its history has been most instructive, and it has certainly influenced the growth of the law in that particular.

The first topic to engage our attention, as indicative of the growth of International Law in the United States, is connected with its earlier treaties and the diplomacy Our early treaties. of which they were the result. During the twenty-five years which succeeded the declaration of its Independence in 1776, the United States made thirteen treaties with ten different States, of which four were African. There were, besides, several minor commercial arrangements, but it is in these thirteen treaties, and particularly in the nine with Christian powers, that the early policy of the country appears. It is true that their negotiators did not in all cases realize their ideals or even fulfil their instructions.

The new State was too weak for that; what it could offer as an equivalent too insignificant. We must know the limitations of those times to appreciate their achievements. But in the correspondence leading up to these treaties we find what was desired, and in their terms what was accomplished. The true interests, and therefore the true policy of the country, were early realized. Its isolated position permitted it to hold aloof from European politics. The importance of its commerce and the carrying trade counselled every effort to safeguard and to foster them, when its friends were at war. And so we find from the outset that its interests were believed to be neutral and peaceful interests. An example of this is the offer of the United States to join in the Armed Neutrality of 1780, an offer which was rebuffed by Russia.

The terms of the treaties of 1778 with France were influenced by the necessity of getting aid in the Revolutionary War. The Treaty of Peace with Great Britain in 1783 related to limits, the fisheries, and loyalist estates and claims. In 1783 and 1785, first was there free expression of our national policy in the treaties with the Netherlands, Sweden, and Prussia.

In one of Jefferson's letters are given the instructions to the Ministers Plenipotentiary, appointed May 7, 1784, to negotiate treaties of commerce with the European powers. They were directed to stipulate for reciprocal freedom of trade; for nine months' delay for removal of property in case of war; for exemption of fishermen, cultivators of the soil, and artisans peacefully pursuing their calling, from the operations of war; for payment for property taken from such; for freedom of all innocent trade, even an enemy's, from capture; for abolition of privateering; for special favor to contraband; that free ships shall make free goods; that blockades to be valid must involve imminent danger and not exist on paper only.

This represented a settled policy. Some of these provi

1 Jefferson's Works, by H. A. Washington, IX. 226.

Free ships make free goods.

sions had been inserted in the 1778 treaty with France; many of them appear in these treaties just referred to. Jefferson in his autobiography 1 tells us that during the negotiations with Hartley "our commissioners had proposed, on the suggestion of Dr. Franklin, to insert an article exempting from capture by the public or private armed ships of either belligerent when at war, all merchant vessels and their cargoes, employed merely in carrying on the commerce between nations." "We inserted this article in our form with a provision against the molestation of fishermen, husbandmen, citizens unarmed and following their occupations in unfortified places, for the humane treatment of prisoners of war, the abolition of contraband of war which exposes merchant vessels to such vexatious, ruinous detentions and abuses, and for the principle of free bottoms, free goods."

"2

As Jefferson states, it was Dr. Franklin who was responsible for these ideas. In a letter to Vaughan, 14 March, 1785, he wrote about privateering, "it is high time for the sake of humanity that a stop were put to this enormity." And five years before, when acting as Judge of Admiralty, sitting in France, he had charged an agent for the American cruisers to order that no more English goods on Dutch vessels be seized unless contraband. "All the neutral States of Europe seem at present disposed to change what had before been deemed the law of nations; to wit, that an enemy's property can be taken wherever found, and to establish a rule that free ships shall make free goods. This rule is itself so reasonable and of a nature so beneficial to mankind, that I cannot but wish it may become general.

That the principle advocated was in violation of the prevailing law he thus admits. It had been the rule and practice of England since the earliest times, derived directly from the Consolato del Mare, that the nationality of prop

1 Jefferson's Works, by H. A. Washington, I. p. 62.

2 Franklin's Letters, IX. p. 80.

8 Franklin's Letters, VII. p. 62.