U.S. State Dept. OF THE INTERNATIONAL LAW OF THE UNITED STATES, TAKEN FROM DOCUMENTS ISSUED BY PRESIDENTS AND FROM DECISIONS OF FEDERAL COURTS AND OPINIONS OF ATTORNEYS-GENERAL. EDITED BY FRANCIS WHARTON, LL. D., AUTHOR OF A TREATISE ON CONFLICT OF LAWS, AND OF COMMENTARIES IN THREE VOLUMES. VOLUME I. WASHINGTON. GOVERNMENT PRINTING OFFICE. 1886. PRELIMINARY REMARKS. The following is the preface to a pamphlet submitted by me, in March last, to Congress: "In Mr. Fillmore's second annual message, in a passage understood to have been furnished by Mr. Webster, then Secretary of State, we are told that one of the most eminent of British statesmen said in Parliament, while a minister of the Crown, "that if he wished for a guide in a system of neutrality, he should take that laid down by America in the days of Washington and the secretaryship of Jefferson"; and we see, in fact, that the act of Congress of 1818 was followed the succeeding year by an act of the Parliament of England substantially the same in its general provisions.' "Of the same period, Mr. Hall, in the second edition of his work on International Law (2d ed., 1884, § 213), thus speaks: The United States had the merit of fixing it (the doctrine of neutrality) permanently. On the outbreak of war in Europe in 1793 a newly-appointed French minister, Mr. Genêt, on landing at Charleston, granted commissions to American citizens who fitted out privateers, and manned them with Americans, to cruise against English commerce. Immediate complaint was made by the English minister, who expressed his "persuasion that the Government of the United States would regard the act of fitting out those privateers in its ports as an insult offered to its sovereignty." The view taken by the American Government was in fact broader, and Mr. Jefferson expressed it clearly and tersely in writing to Mr. Genêt. Taking this language straightforwardly, without forcing into it all the meaning which a few phrases may bear, but keeping in mind the facts which were before the eyes of Mr. Jefferson when he penned it, there can be no doubt that the duties which it acknowledges are the natural if not inevitable deductions from the general principles stated by Bynkershoek, Vattel, and De Martens; and there can be as little doubt that they had not before been frankly fulfilled. The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations.' "The United States of America,' says Sir Robert Phillimore (1 Int. Law, 3d ed., 1879, p. 555), 'began their career as an independent country under wise and great auspices, and it was the firm determination of those who guided their nascent energy to fulfill the obligations of international law as recognized and established in the Christian Commonwealth of which they had become a member. They were sorely tried at the breaking out of the war of the first French Revolution, for they had been much indebted to France during their conflict with their mother country, and were much embarrassed by certain clauses relating to privateers in their treaty with France of 1778; but in 1793, under the Presidency of Washington, they put forth a proclamation of neu trality, and, resisting both the threats and the blandishments of their recent ally, took their stand upon sound principles of international law, and passed their first neutrality statute of 1794. The same spirit induced the Government of these States at that important crisis when the Spanish colonies in America threw off their allegiance to the mother country, to pass the amended foreign enlistment statute of 1818; in accordance with which, during the next year, the British statute, after a severe struggle, and mainly by the great powers of Mr. Canning, was carried through Parliament.' "Sir Robert Phillimore, in the passage last quoted, assigns to the Government of the United States the credit of establishing liberal and humane principles of international law at two great epochs :-that of the first French revolutionary war during the administration of Washington and the secretaryship of Jefferson, and that of the reconstitution of the relations of the great powers of the civilized world consequent upon the overthrow of the Spanish supremacy in South America, and the triumph which was then secured to liberal principles by the joint action of England and of the United States in their resistance to the projects of the Holy Alliance. As leader in the first of these epochs of American statesmanship Mr. Jefferson is entitled to the pre-eminence, though there is no question that he was greatly aided in coming to his conclusions by the calm wisdom of Washington. Mr. Monroe was President during the second of these epochs; and the private letters to and by him deposited in the Department of State show that he was aided in reaching the positions which were announced by his administration in this relation, not merely by his cabinet, including Mr. J. Q. Adams, Mr. Calhoun, Mr. Wirt, and Mr. Crawford, but by Mr. Jefferson and Mr. Madison, whom he freely and constantly consulted as to each step in the important action which he then took in the domain of international law. "But it is not in these two epochs alone that the statesmen of the United States showed commanding ability in this important department both of statesmanship and of jurisprudence. I do not desire to refer to Secretaries of State who are now living, or who, if recently dead, are still associated with immediate political affairs. But when among those who filled the secretaryship in prior days we look back on Madison, on Monroe, on John Quincy Adams, on Clay, on Van Buren, on Edward Livingston, on Forsyth, on Clayton, on Webster, on Calhoun, on Edward Everett, on Marcy, on Buchanan, on Cass, and on Seward, it is impossible not to see that the continuous exposition of international law, so far as concerns this country, fell into the hands of men who were among the first statesmen and jurists of their age, singularly fitted to maintain in all relations, what was maintained in the two relations just noticed, the leadership in the formation of a liberal and humane system of international jurisprudence. And they have ably done this work. I am not unfamiliar with the writings on international law of foreign statesmen and jurists; I have carefully studied not merely the messages of our Presidents, but the volumes, now nearly four hundred in number, in which are recorded (with the exceptions to be pres ently noted) the opinions of our Secretaries of State; and after a careful comparison of those two classes of documents I have no hesitation in saying not only that the leadership ascribed to our statesmen in the twogreat epochs above noticed is maintained in other important relations, but that the opinions of our Secretaries of State, coupled with those of our Presidents as to which they were naturally consulted, form a body of public law which will stand at least on a footing of equality with the state papers of those of foreign statesmen and jurists with which it has been my lot to be familiar. "But where are to be found the documents which embody these utterances of those charged with the direction of our foreign affairs? It is a fact of great moment to us at present that these documents, in the main, are inaccessible to the mass of those to whom their study is important, as well as to most of those who would desire to appeal to them as guides. I append hereto a table of the standards to which I have resorted in making up the following pages; and it will be seen that three-fourths of them are still in manuscript, accessible only by special permission of the Secretary of State. It is true that the earlier papers of the Department were published, though somewhat imperfectly, in two distinct series of what are called 'State Papers'; and it is true also, that from time to time documents from the Department were printed by order of Congress; that from 1861 to 1868, the Department issued compilations of its correspondence on foreign affairs; and that in 1870, the publication of such correspondence was finally established as a matter of course. "But, in respect to these several sources of authority, the following remarks may be made: "(1) In the manuscript records many important papers are omitted. A sudden call from Congress came, for instance, to which a reply was furnished by the Secretary, and this reply was forwarded, as often happened, without being entered, as it should have been, in the 'Report Book,' which is assigned for such papers. But by far the most common cause of omission is the occasional use, by both Presidents and Secretaries, of informal letters, for the purpose of personal explanation of their action and policy. Some of these letters will be found in the published volumes of the works of Mr. Jefferson, Mr. Madison, and Mr. Webster. A far larger portion of them may be found in the unpublished papers of Mr. Jefferson, Mr. Madison, and Mr. Monroe, now deposited in the Department of State. I have drawn, in my present work, largely from both these sources, as well as from the manuscript records. "(2) The printed documents, whether contained in reports to Congress or in the State Papers,' or in the annual publications of the Department, are necessarily defective. This arises not merely because many important documents, or parts of documents, are kept back at the time, from the fact that their publication might not be consistent with public interest, but because expositions of general rules, which are of so great interest in a work such as that in which I am now engaged, are not of equal interest in publications whose object is to report the action of the Government in concrete cases. "(3) So far as concerns the publications to which I have referred, it must be noticed that not only do they cover only limited sections of time in our political history; not only are they necessarily imperfect in their exposition of the action of the Department even in the periods they cover; not only do they suppress passages, which though of great future interest in settling principles, it may be impolitic at the time to make |