Vattel's list is larger, including naval stores and even provisions.23 That the draft narrowed the list of contraband may be ascribed to the desire of Adams and his colleagues to provide for a legitimate neutral trade for the United States in case France might be engaged in war on her own account.

Upon the right of visitation in order to ascertain the presence of contraband, the draft makes more liberal provision than Vattel, who held that a vessel refusing to be searched could from that proceeding alone be condemned as lawful prize. The draft permitted visitation only, with an inspection of the ship's papers. This stipulation for the giving of full credit to ship's papers had been recognized by Bynkershoek and Vattel as in harmony with the best-established usage.

As regards neutral duties and rights, we come nearer to the law of nature. It is true that Wolff held that neutrality was an abnormal condition for a state, but Wolff held more to the law as based upon practice. Vattel's development of the idea of neutrality was based upon the law of nature: that by the law of nature nations are in a state of peace and have a right to remain so. The great development to which American diplomacy gave to the doctrine of neutrality in 1793 (which Genet connected with the "aphorisms of Vattel" 24), had its origin at the very beginning of American independence. Its foundations were laid by those Continental text-writers who held that by the law of nature the natural state of nations was peace and not war; that peace was the normal and war the abnormal condition.25 Vattel in using this axiom develops the idea so far as to lay down the rule that neutrality includes not only the right to abstain from war, but the duty to observe "a strict impartiality toward the belligerent powers." With this doctrine the committee must have been familiar. Later as developed under Washington it became the basis for America's great contribution to the law of nations and indeed, for the vindication of her independence.26

23 Vattel, Book III, sec. 113.

24 Jefferson to Gouverneur Morris, Aug. 16, 1793, Am. State Papers, For. Rel. I, 168.

25 Cf. Lorimer, II, 52.

26 Hall's International Law, 4th ed., 615.

The correspondence over the treaty of peace with England yields negative results as to the law of nature. Upon two subjects of long and careful discussion, the fisheries and the navigation of the Mississippi, the American commissioners argued to some extent from the law of nature. This, however, is not so much the law of nature as found in the texts as natural law in the sense of physical configuration.27 The instructions of Congress of August 14, 1779, insisted upon the free and undisturbed exercise of the common right of Americans to fish on the Newfoundland banks. In other words, the claim was based upon long usage and not upon the law of nature. The right to navigate the Mississippi was claimed by the "law of nature," it is true, but Franklin's famous remark seems to point to physical conditions.28 While Adams mentions the law of nature as giving the right to free navigation of the Mississippi, he is careful to add that it was ours because of the charters and as a consequence of the Revolution.29 The characters and temperaments of the negotiators, British and American, were not such as to resort to many arguments beyond expediency and opportunism. Each side was after the best settlement possible and little effort was expended in what would have seemed more or less abstract and academic.

Notwithstanding the predilection of American for philosophical generalization, the confusion between the law of nature and natural rights, and the familiarity which the early American jurists had with the Continental writers, the positive impress of the law of nature upon the American ideas of the law of nations seems upon the whole not to have been great. Specific instances of the incorporation of the law of nature into the law of nations, as interpreted by Americans, are few. For this apparently negative result certain causes may be mentioned: (1) the spirit of the law of nature, the jus naturæ, was really alien to lawyers whose thought lay within the common law;

27 John Adams's Journal, November 25, 1782; Wharton's Diplomatic Correspondence of the American Revolution, VI, 72.

28" Poor as we are, yet as I know we shall be rich. I would rather agree with [Spain] to buy at a great price the whole of their right than sell a drop of its waters. A neighbor might as well ask me to sell my street door." Franklin to Jay, October 2, 1780. Ibid., IV, 75.

29 Ibid., VI, 31.

(2) the notion of sovereignty developed by the Continental writers was drawn from the Roman law, and was opposed to that of popular sovereignty; (3) the law of nations early crept into American courts in connection with questions of prize, a subject to be dealt with according to international practice; (4) Vattel was the last of the great text-writers upon the law of nations drawn from the law of nature. After Vattel Kant transformed the law of nature into a new Naturrecht. By this later influence American jurists were untouched. On the other hand, the influence of Bentham in the course of little more than a generation materially changed the theory of the law both in England and in America; (5) the adoption of the Federal constitution gave an opportunity for the uniform development of international law as applied to concrete cases. After 1789 there was a growing body of law upon which American diplomats grew more and more dependent. The spirit of the common law, which exalts the case and neglects the text-writer, has always dominated our courts. With the establishment of the Federal supreme court began, case by case, an authoritative and fairly uniform exposition of international law. The growing body of American precedent rendered references to the Continental writers less necessary.

At the outset, when Americans came for the first time into contact with international questions, when they had no precedents of their own, familiarity with Continental writers was of great importance. The principles of the law of nature provided a basis of authority for departing from the rules of British usage. The doctrine of natural rights furnished a political ideal for individuals. The principles of the iaw of nature assisted in giving to the founders of the Republic an idealistic conception of its rights as a nation and of its duties toward other states.

JESSE S. REEVES.

THE PRACTICE OF ASYLUM IN LEGATIONS AND

CONSULATES OF THE UNITED STATES1

The practice of extending protection, or "asylum," within the walls of legations and consulates to refugees and unfortunates, rests upon no very satisfactory legal basis, but rather upon considerations of humanity. Though from time to time certain recognized doctrines of international law and certain doctrines of somewhat more doubtful recognition have been asserted in justification, it will be found that the so-called "right of asylum" is no right at all, but only a privilege granted or claimed where its use seems necessary by reason of an unstable condition of society.

In those countries in which the government is stable and enduring and the local law dominant, the privilege is seldom called in question, but has fallen into " innocuous desuetude," simply because there has been no necessity for its exercise, until to-day it is doubtful if in one of the greater nations of the world its existence would be either claimed or conceded. However, in those states comprehended under the term "Spanish-American countries," the conditions favoring its use have so frequently occurred that it has continually been the subject of diplomatic correspondence. There has seemed something inherent in the Spanish character demanding the interposition of a neutral restraining hand at certain recurrent crises in the political lives of those countries. Thus it is that almost every instance of the attempted exercise of the privilege by an American minister has occurred in one of the so-called republics of Central and South America.2 Accounts of at least forty-three instances 3 upon the West

1 The writer has previously published portions of this article in the Harvard Law Review. These are reprinted by the courtesy of that publication.

2 The discussion is confined to cases arising in Central and South American countries. There are but few other instances in our diplomatic reports.

3 (1) 1851, Chili. (2) 1853, Peru. (3) 1854, Peru. (4) 1855, Nicaragua. (5) 1859, Chili. (6) 1865, Hayti. (7) 1865, Peru. (8) 1867, Peru. (9) 1868, Paraguay. (10) 1868, Hayti. (11) 1869, Hayti. (12) 1870, Guatemala. (13)

ern Hemisphere wherein the question of asylum has been opened appear in our Foreign Relations Reports: 17 in Hayti, 5 in Bolivia, 4 each in Chili and Peru, 3 in Ecuador, 2 each in Guatemala, Nicaragua, and Paraguay, and 1 each in Colombia, Mexico, Salvador, and Santo Domingo. the earliest of these cases being that in Chili in 1851, and latest in Hayti in 1905. Of all these, the more important instances have been that involving the romantic and spectacular career of General Boisrond Canal, in Hayti, in 1875, wherein the use of asylum was deprecated and disavowed as far as seemed consistent with the dignity of our flag, and that extended use to which the privilege was put by Minister Egan, in Chili, in 1891, in which, so far as may be gleaned from official correspondence, the position of our representative was supported by his government. It may be most profitable to take up these matters in chronological order, to see if our government has throughout maintained a consistent attitude, and afterwards to discuss the foundations of the various claims and the principles involved.

HISTORICAL SUMMARY

Prior to the date with which this summary begins, several detached instances of the exercise of the right of asylum in Central and South America are to be found, and, in the instructions of Mr. Livingston, Mr. Calhoun, Mr. Buchanan, and Mr. Clayton, secretaries of state, the general tenor prevails that the privileges are "more liberally construed in the Mohammedan states and in South America than in the leading European states, but they should be in all cases

1871, Salvador. (14) 1872, Hayti.

(15) 1873, Hayti. (16) 1875, Bolivia, Jan. 19. (17) 1875, Bolivia, Feb. 20. (18) 1875, Bolivia, March 20. (19) 1875, Hayti, May 1. (20) 1875, Bolivia, Oct. 5. (21) 1877, Mexico. (22) 1878, Hayti. (23) 1879, Hayti. (24) 1885, Colombia, Feb. 23. (25) 1885, Hayti, Nov. 7. (26) 1888, Hayti. (27) 1890, Hayti. (28) 1890, Guatemala. (29) 1891, Chili. (30) 1892, Hayti. (31) 1893, Nicaragua. (32) 1893, Chili, April 10. (33) 1895, Ecuador. (34) 1896, Hayti, Feb. 3. (35) 1896, Ecuador, March 12. (36) 1898, Bolivia. (37) 1899, Ecuador. (38) 1899, Hayti, Aug. 2. (39) 1899, Hayti, July 17. (40) 1899, Hayti, Aug. 14. (41) 1904, Santo Domingo, Feb. 1. (42) 1904, Paraguay, Aug. 11. (43) 1905, Hayti.

At the time of the writing of this article the last two current volumes of the Foreign Relations Reports are not yet made public.