Chap. XI. demand of England, to release the prizes which had been carried into the Texel by Paul Jones, and that the English

that the recognition of these rights does not import in favour of such States recognition of their sovereignty.

66 6

"Foreign nations,' says M. Martens (Précis du Droit des Gens, lib. viii, cap. 3, sec. 264), 'cannot refuse to consider as lawful enemies those who are empowered by their actual government, whatever that may be. This is not recognition of its legitimacy.'

"This last recognition can only spring from express and official declaration, which no one of the cabinets of Europe has thus far made. "Finally, and in the last place, I permit myself here to cite the example of the American privateer, Paul Jones (sic).

"This vessel, considered as a pirate by England, had captured two of His Britannic Majesty's ships in October 1779. She took them into the Texel, and remained there more than two months, notwithstanding the representations of Mr. Yorke, Ambassador of Great Britain at the Hague, who considered the asylum accorded to such privateer (pirate as he called it in his memoir to the States-General of 21st March, 1780) as directly contrary to Treaties, and even to the ordinances of the Government of the Republic.

"Mr. Yorke demanded that the English vessels should be released.

"The States-General refused the restitution of the prizes.

"The United States, whose belligerent rights were not recognized by England, enjoyed at that period the same treatment in the ports of the Republic of the United Provinces as the Netherlands authorities have now accorded to the Confederated States.

"If the Cabinet of the Hague cannot, therefore, by force of the preceding, class all the vessels of the Confederated States armed for war in the category of privateers, much less can it treat them as pirates (as you call them in your despatch of the 12th of this month), or consider the Sumter as engaged in a filibustering expedition—‘engaged in a piratical expedition against the commerce of the United States'—as it reads in your communication of the 2nd of September.

"Here again historic antecedents militate in favour of the opinion of the Netherlands Government.

"Is there need, in fact, to remind you that at the outset of the War of American Independence in 1778, the English refused to recognize American privateers as lawful enemies, under the pretence that the letters of marque which they bore did not emanate from the Sovereign, but from revolted subjects?

"But Great Britain soon had to desist from this pretension, and to accord international treatment to the colonists in arms against the mother-country.

"The frankness with which the King's Government has expressed

Minister then resident at the Hague had insisted that Chap. XI. Jones was a pirate for exactly the same reasons for which

its convictions in relation to the course to be taken towards the States of the South will, without doubt, be estimated at its just value by the Government of the United States.

"It will perceive therein the well-settled intention to preserve in safety the rights of neutrality; to lay down for itself and to follow a line of conduct equally distant from feebleness as from too great adventurousness, but suitable for maintaining intact the dignity of the

State.

"The Government of the Netherlands desires to observe, on the occasion of existing affairs in America, a perfect and absolute neutrality, and to abstain therefore from the slightest act of partiality.

According to Hubner (Saisie de Bâtiments Neutres), 'neutrality consists in absolute inaction relative to war, and in exact and perfect impartiality manifested by facts in regard to the belligerents, as far as this impartiality has relation to the war, and to the direct and immediate measures of its prosecution.'

"Neutrality,' says Azuni (Droits Maritimes), 'is the continuation in a state of peace of a power which, when war is kindled between two or more nations, absolutely abstains from taking any part in the contest.'

"But if the proposition be admitted that all the vessels of the Confederate States armed for war should be considered primâ facie as privateers, would there not be a flagrant inequality between the treatment and the favours accorded to vessels of war of the United States and the vessels of the Confederate States, which have not for the moment a navy properly so called?

"This evidently would be giving proof of partiality incompatible with real duties of neutrality. The only question is to determine with exactitude the distinctive characteristics between a privateer and a shipof-war, although this may be difficult of execution. Thus is ignored that which Count Reventlow, Envoy of the King of Denmark at Madrid, drew attention to in 1782, that there exists among the maritime powers regulations or conventions between sovereigns, which oblige them to equip their vessels in a certain manner, that they may be held veritably armed for war.

"You express also, in your despatch of September 2, the hope that the Netherlands Government will do justice to your reclamation, grounding yourself on the tenor of Treaties existing between the Netherlands and the United States, on the principles of the law of nations, and, finally, upon the assurances you have received from the King's Government.

"Amidst all the European powers there are few who have better defended the rights of neutrals, and have suffered more in this noble

Chap. XI. the same description was now applied to Semmes. "The United States, whose belligerent rights were not then

cause than Denmark; and one of her greatest statesmen of the close of the last century, Count Bernstorff, has been able to declare with justice, in his memoir of July 28, 1793, a document that will long continue to be celebrated, 'a neutral power fulfils all its duties by never departing from the most strict impartiality, nor from the avowed meaning of its Treaties.'

"I have endeavoured, Sir, to show, in what precedes, that the Government of the Netherlands has fulfilled conscientiously its first duty, and will adhere faithfully thereto.

"The Cabinet of the Hague does not observe, and will not observe, less religiously the tenor of Treaties.

"The Treaty of the 19th of January, 1839, and the additional Convention of the 26th of August, 1852, only relate to commerce and navigation; the only Treaties that can be invoked in the present case are those of the 8th of October, 1782.

"I do not think it my duty to enter here upon a discussion of principles on the question of deciding whether these Treaties can still be considered as actually in force, and I will not take advantage of the circumstance that the Cabinet of Washington has implicitly recognized, by the very reclamation which is the object of your despatches, that the Treaties of 1782 cannot any longer be invoked as the basis of international relations between the Netherlands and the United States.

"I will only take the liberty of observing to you, Sir, that the execution of the stipulations included in those diplomatic acts would be far, in the present circumstances, from being favourable to the Government of the Republic.

"In fact, we should, in this case, admit to our ports privateers with their prizes, which could even be sold there by virtue of Article 5 of the before-cited Convention of 1782, on rescues.

"It would, perhaps, be objected that the Treaty of 1782, having been concluded with the United States of America, could not be invoked by a part of the Union which had seceded from the central Government, and I do not dissent from the opinion that this thorny question of public law would give rise, should the case occur, to very serious difficulties.

"But we cannot lose sight of the fact that the Treaty spoken of was concluded, even before the recognition of the United States by England, in 1783, with the oldest members of the Republic, among others, to wit, with Virginia, North Carolina, South Carolina, and Georgia, and that those States actually figure among the Secessionists.

"In 1782 the Republic of North America was only a simple con

recognized by England, enjoyed at that time the same Chap. XI treatment in the ports of the Republic of the United

federation of States, remaining sovereign, united only for common defence (Staatenbund); and it is only since the establishment of the Constitution of the 17th of September, 1787, that the pact which binds together the United States received the character which is attributed to it by Mr. Wheaton also (Elements of International Law) of a perfect union between all the members as one people under one Government, federal and supreme (Bundestaat)-'a commonwealth,' according to Mr. Motley in his pamphlet Causes of the Civil War in America, p. 71.

"In view of this fundamental difference between the present character of the Government of the United States and that of the party contracting the Treaty of 1782, it would be difficult to refuse in equity the privilege of the Secessionist States to avail themselves

of it.

"It will, therefore, not escape your penetration that it is preferable, as well for the Netherlands as for the Cabinet of Washington, to leave the Treaty above mentioned at rest, and that, in excluding privateers from its ports, the Government of the Netherlands has acted only in the interests of the Government of the United States, to which it is bound by feelings of a friendship which dates even from the time of the existence of the Republic of the United Provinces, and which the King's Government will make every effort to maintain and consolidate more and more.

"According to the Law of Nations, the cases in which the neutrality of a power is more advantageous to one party than to the other do not affect or impair it; it suffices that the neutrality be perfect and strictly observed. The Government of the Netherlands has not departed from it, therefore, in denying admission to the ports of His Majesty's territories to privateers, although at first glance this determination is unfavourable to the Southern States.

"The difficulties which have actually arisen, and which may be renewed hereafter, the desire to avoid as much as possible everything that could compromise the good understanding between the Governments of the United States and the Netherlands, impose on the latter the obligation to examine with scrupulous attention if the maintenance of the general principles which I have had the honour to develope might not in some particular cases impair the attitude of neutrality which the Cabinet of the Hague desires to observe. If, for example, we had room to believe that the Sumter, or any other vessel of one of the two belligerent parties, sought to make of Curaçoa, or any other port in His Majesty's dominions, the base of operations against the commerce of the adverse party, the Government of the Netherlands would be the first to perceive that such acts would be a real infraction, not

Chap. XI. Provinces as the authorities of the Netherlands have now accorded to the Confederate States." He added that, should there be reason to believe that the Sumter, or any vessel of either belligerent, sought to make Curaçoa, or any other Dutch port, a base of operations against the commerce of the adverse party, the Government would take measures to prevent such an infringement, not only of neutrality, but of its own rights of sovereignty over the territorial waters of the State, and that instructions on this point would be sent to the Colonial authorities. A month afterwards, on the arrival of news that the Sumter had put in and coaled at Paramaribo, further orders were sent out, applicable, as the previous orders had been, to the ships of both belligerents alike. They were not to be permitted to provide themselves with more coal than would be enough for a run of twentyfour hours, and their stay in port was to be limited to twice twenty-four.1

To the despatch of the 17th September Mr. Seward rejoined by reiterating that the United States "unreservedly claimed to determine for themselves absolutely the character of the Sumter;" that they would not debate the point; and that they were determined "to make it merely of the neutrality we wish to observe, but also of the right of sovereignty over the territorial sens of the State; the duty of a neutral State being to take care that vessels of the belligerent parties commit no act of hostility within the limits of its territory, and do not keep watch in the ports of its dominion to course from them after vessels of the adverse party.

"Instructions on this point will be addressed to the Governors of the Netherlands colonial possessions.

"I flatter myself that the preceding explanations will suffice to convince the Federal Government of the unchangeable desire of that of the Netherlands to maintain a strict neutrality, and will cause the disappearance of the slightest trace of misunderstanding between the Cabinets of the Hague and of Washington.

"Accept, &c., (Signed)

"DE ZUYLEN DE NYEVELT.".

1 Baron Van Zuylen to Mr. Pike, 15th October, 1861.