cases, attaches only to the freight of the contraband merchandise. That consequence only attaches in the present case. But the fact of such conveyance may be properly taken into consideration, with other circumstances, in determining the question of costs and expenses. It was the duty of the captain of the Peterhoff, when brought to by the Vanderbilt, to send his papers on board, if required. He refused to do so. The circumstances might well excite suspicion. The captain of a merchant steamer like the Peterhoff is not privileged from search by the fact that he has a government mail on board; on the contrary he is bound by that circumstance to strict performance of neutral duties and to special respect for belligerent rights. The search led to the belief on the part of the officers of the Vanderbilt that there was contraband on board, destined to the enemy. This belief, it is now apparent, was warranted. It was therefore the duty of the captors to bring the Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so. On the other hand, not only was the captain in the wrong in the refusal just mentioned, but it appears that papers were destroyed on board his ship at the time of capture. Some papers were burned by a passenger named Mohl, or by his directions. A package was also thrown overboard by direction of the captain. This package is variously described by the witnesses as a heavy sealed package wrapped in loose paper; as a box of papers; and as a packet of despatches sealed up in canvas and weighted with lead. By the captain it is represented as a package belonging to Mohl, and containing a white powder. We are unable to credit this representation. It is highly improbable that, under the circumstances described by the captain, he would have thrown any package overboard at such a time, and with the plain intent of concealing it from the captors, if it contained nothing likely, in his opinion, to prejudice the case of the ship and cargo. We must say that his conduct was inconsistent with the frankness and good faith to which neutrals, engaged in a commerce open to great suspicion, are most strongly bound. Considering the other facts in the case, however, and the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution.. Decree accordingly. 139 The Secretary of State (Seward) to the Italian Minister (Cerruti)1 WASHINGTON, November 21, 1867. SIR: This Department duly received your note of the 15th of September, last, accompanied by a draft of a Treaty of Commerce, and of a Consular Convention between the United States and Italy, and by notes upon the Articles of the two drafts respectively. The draft of the Treaty of Commerce has been carefully considered, pursuant to your request, and I, herewith return a copy of it with such comments as have occurred to me. I have [etc.] [Enclosure Extract] WILLIAM H. SEWARD Draft of a Treaty of Commerce between the United States and Italy, and Comments by the Secretary of State 2 ARTICLE XII In fulfilment of the principles of maritime law established by the declaration of the Congress of Paris of April 10th 1856, which are accepted without reservation by the two Parties in their mutual relations, the two powers agree that should there arise by any fatality a war between the one and the other, the private property of whatever kind belonging to the citizens of one, shall be respected by the other, on the same footing of neutral property, both on land and sea, on the high seas, and the territorial sea, and in whatsoever other place, and whatever may be the flag under which the vessels and the merchandize are voyaging without any other limitations than the case of forced. blockade and contraband of War, which are excepted. The right is, however, maintained to prevent during the war, any trade or communication between all, or some points of the coast of the territory, and the merchant vessels travelling under the enemy's flag, as also the right of applying to the transgressors of such interdiction, confiscations, or other penalties, provided the prohibition and the penalty be determined by the proper notice, previously made public COMMENTS ARTICLE XII With respect to this Article it is preferred that there should be no reference to the Congress of Paris. Among others a sufficient reason for this preference is believed to be that several of the rules 1 MS., Notes to the Italian States Legation, vol. ví, pp. 334-338, 2 MS., Drafts of Treaties, vol. iv, pp. 17-20 of draft. adopted by that Congress had long been both adopted and acted on by this Government. Indeed as long ago as the 10th of September, 1785, the abolition of privateering and the exemption of private property from capture during war was stipulated for in the 23d Article of the Treaty of that date between the United States and Prussia. It is consequently proposed to substitute the following. ARTICLE XII The High Contracting Parties agree that, in the unfortunate event of a war between them, the private property of their respective citizens and subjects with the exception of contraband, shall be exempt from capture and seizure on the high seas or elsewhere, by the armed vessels or by the military forces of either Party; it being understood, however, that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either Party. 140 The Secretary of State (Seward) to the Italian Minister (Cerruti)1 WASHINGTON, December 11, 1867. MY DEAR ME CERRUTI: I have received the note which you addressed to me on the 10th of November last, and have considered with care the subject therein discussed, and I am now prepared to give you the conclusion of this Government thereupon. Before doing so, I must take occasion to re-affirm that the most cordial friendship is cherished by this Government for the King and the Kingdom of Italy. This friendship results from profound sympathy with the people of Italy in the restoration of their national unity and greatness, and is cemented by the pleasant memory of the kindness and good offices which the United States have constantly received from the King Victor Emanuel while as yet he was only King of Sardinia, and which have been continued in his broader and more brilliant reign as the King of re-united Italy. I must take occasion to say further that the Government desires to improve every opportunity of manifesting these feelings towards the Italian nation. I recur with pride and pleasure to the position which was assumed by my predecessor Mr Marcy in his letter of the 14th of July 1856, addressed to the powers therein named, and in his note of the 28th of July in that year, addressed to the representatives of Austria, Russia, Prussia and Sardinia, at Washington. You truly say that in these notes Mr Marcy submitted to the powers addressed an amendment to the first Article of the so-called treaty of Paris, to the effect that the property of citizens of a belligerent power on the open sea shall not be subject to seizure on 1S., Notes to the Italian States Legation, vol. VI, pp. 344-347. the part of vessels of war of the other party with the exception of contraband of war. You now invite this Government to renew Mr Marcy's proposition under a belief that the moment has come for establishing by universal law the immunity of private property on the open sea in time of war. After Mr Marcy's proposition was made and declined, it was the misfortune of the United States to experience in a very aggravated form, the evils of sedition, insurrection, and rebellion. The United States in that hour of trial looked to the maritime powers of Europe for equal justice and magnanimity, while they asked neither partiality nor friendship. Their expectations in this respect were not everywhere fully realized. Practices obtained in the ports of neutral powers, and upon the high seas under neutral flags, which brought much devastation upon American trade and commerce while they immeasurably aggravated the domestic calamities of civil war. At a critical juncture, this Government proposed to the maritime powers that the United States would waive M Marcy's proposed amendment and accede without reserve to the Treaty of Paris. Some of the stipulating parties to that contract declined to receive the accession, except upon condition that they should be at liberty to recognize the United States rebels as a maritime power equal under the Treaty of Paris to the United States themselves, although those rebels were destitute of a single ship of war and could command neither ingress nor egress from one port in our whole country. The remembrance of this great wrong still lingers in the memory of the United States, and weakens their disposition to confide in treaty stipulations as a security for their national commerce. Under these circumstances, the Italian Government will not be surprised to learn that the Government of the United States thinks that a convenient time has not yet come for reviewing the debate upon the questions which arose between the United States and the contracting powers, upon the conclusion of the Treaty of Paris. I have [etc.] WILLIAM H. SEWARD 141 The Secretary of State (Seward) to the Minister in the North German Union (Bancroft)1 No. 46 WASHINGTON, February 25, 1868. SIR: I recur on this occasion to your dispatch No. 36, and to my answer thereto, No. 45, of which latter paper this dispatch may be 1 Papers Relating to Foreign Affairs (Diplomatic Correspondence), 1868, pt. 2, p. 49. considered a supplement. Inquiry has been made and full consideration has been bestowed upon the two subjects which you have presented, and upon which the opinion of the President was reserved. I have now to say, first, that neither of those questions is in any case to be connected with the negotiation, or with such treaty as you may be able to make concerning the naturalization question. Secondly, that you are at liberty to treat with the government of North Germany upon the first of those reserved questions which concern the mutual freedom of trade upon the broad foundation which, in your No. 36, you propose to adopt. In regard to the second question which concerns the inviolability of private persons and property in war, we must still defer any proceeding to commit this government, for the reason that in the present condition of our relations with one of the European powers, any proposition to a foreign state for the inviolability of private persons and property on the high seas, could not be expected to find favor with the Senate of the United States or with the country. The principle which Franklin proposed is widely cherished, and there exists an earnest desire among us to give it vitality, thus at once vindicating Franklin's philanthropic foresight, and securing to ourselves and to our country a new distinction for humanity and benevolence. It is not to be understood that the President thinks that the time has not arrived, but only that the immediate condition is unfavorable. Your private letter of the 7th of February is received and has been submitted to the President. The cable has a statement that your treaty upon the naturalization question is complete. I hope that it may be followed by prompt action on the part of Great Britain. In that case I will again bring your proposition concerning the inviolability of private property in war to the consideration of the President and his constitutional advisers. I am [etc.] 142 WILLIAM H. SEWARD The Secretary of State (Fish) to the North German Union Minister (Gerolt)1 WASHINGTON, July 22, 1870. SIR: I have the honor to acknowledge the receipt of your letter of the 19th instant, communicating to this Government the text of a dispatch from Count Bismarck, to the effect that private property 1 Foreign Relations, 1870, pp. 217-218. |