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contrary to humanity and not necessary to self-defence.
Our rule also sets aside the right of blockade, except so far as to preclude the entrance and departure of enemies ships. Neutrals having no arms, ammunition or munitions of war or enemies soldiers on board, may rightfully enter and depart, for an interference with their peaceful pursuits cannot be said to be a nec
ary act of selfdefence. Beside the United States, or any neutral nation has a right freely to trade with every other nation; and a war between any two of them does not affect the rights of the residue, except that the duty of strict neutrality arises, and that can be only violated by taking part with either belligerent. To · enter a blockaded port and sell a cargo of flour is not taking part in the war, nor is starving the people of an enemies' sea-port a necessary act of selfdefence. This doctrine is agreed to by the 12th, 13th and 23d Articles of the treaty of 1785, between the United States and Prussia. We would not confine the self-defence of a nation to its own soil or the high seas, but we camot perceive any right to shut up an enemy's ports from peaceful, lawful neutral trade on the plea of self-defence. The right of the neutral to trade, except in contra
band articles as above stated, with the belligerents is a perfect natural right, and we know of no moral right to starve to death or distress any portion of the human family. The treaty with Prussia fully sustains this view of the subject.
SECTION THIRTY-EIGHTH. SUBJECTS OF BELLIGERENT
It follows that wars of self-defence must be waged against the army and navy of the enemy, against his fortresses, his arsenals, ship-yards for marine arming and military posts, against armed men, and not against private citizens, their property on hand, or their ships and cargoes at sea. This is the doctrine of the Emperor Napoleon's celebrated Berlin decree. It is now admitted by the code of public law that this is the true rule on land. The Supreme Court of the United States, in 1833, in adjudging the effect of the Spanish treaty ceding Florida to the United States, in the case of the United States vs. Percheman, (7 Peters, 51,) decided that the property of private persons cannot be affected or disturbed rightfully by any governmental act, either by conquest or cession. Our first treaty with Prussia establishes the immunity of private property by sea and land. It is clear that in the eye of reason no distinction exists between a ware-house of an enemy on shore and his
ship and cargo at sea. Both upon the principles of the moral law of nations are exempt from seizure and capture; as such acts are not necessary to self-defence, are inhuman, and distress innocent persons. This view of the subject is sustained by the Panama instructions above referred to in spirit, if not in form. The Supreme Court of the United States, in the United States vs. Percheman, after saying that conquest in our day only reaches dominion, add : " The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world be outraged if private property should be generally confiscated and private rights annulled.” The same reason enforces the immunity of private property at sea as well as on land. President Adams, in a Message to Congress in 1826, supports this doctrine, and referring to the Congress of Panama and an improvement of public law, says: “I cannot exaggerate to myself the unfading glory with which these United States will go forth in the memory of future ages, if by their friendly counsel, by their moral influence, by the power of argument and persuasion alone they can prevail upon the American nations at Panama to stipulate by general agreement among themselves, and so far as any of them may be concerned, the abolition of private
war upon the ocean."
Dr. Franklin forty years before declared this a principle of natural law, and Prussia admitted it by treaty. The 23d Article of our Prussian treaty of 1785 establishes this doctrine. Napoleon's celebrated Berlin decree of 1806, işsued from Berlin, affirmed that the true rule of international law protects private persons and the property of enemies noncombatant on sea and land alike from capture and injury; and the decree reproached Great Britain with a violation of this humane principle, and on.this ground a cruel retaliation upon the subjects and property of Britain and upon submitting neutrals, was ordered to coerce the British nation to allow the same im. munity to private persons and property at sea as on land. The Berlin decree of the Emperor Napoleon, devised for the purpose of overthrowing the unfounded maritime pretension of Great Britain to extend her laws over the high seas and the vessels of foreign nations sailing thereon, was concurred in and enforced by France, Russia, Prussia, Denmark, Spain and other continental nations. This decree becomes important as a solemn declaration of the natural right of private persons and property to immunity in war, at sea as well as on land.' Though the means adopted by Napoleon and his allies may not be justifiable, the end aimed at, the freedom of the seas and the im
munity of private persons and property, command the assent of right reason. It was the adoption of a principle reared on American soil. This document is so celebrated, and its principles were so extensively acted upon by the great continental nations that we give the following translated copy:
Imperial Camp, Berlin, November 21, 1806, Napoleon, Emperor of the French and King of Italy, considering:
“1. That England does not admit the right of nations, as universally acknowledged by all civilized people.
662. That she declares as an enemy every dividual belonging to an enemy state, and in consequence makes prisoners of war not only of the crews of armed vessels, but those also of merchant vessels, and even the supercargoes of the same.
"3. That she extends or applies to merchant vessels, to articles of commerce, and to the property of individuals, the right of conquest, which can only be applied or extended to what belongs to an enemy state.
“4. That she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which according to reason and the usages of civilized nations, is applicable only to strong or fortified ports.
65. That she declares places blockaded, be.