2023-12-30

Neutrality as influenced by the U S : Rhee, Syngman, PhD Thesis 1912 Summary


CHAPTER 6 Summary Review 

The early history of the law of nations allowed of no such 
idea as neutrality, as we understand it now. The very ele- 
mentary ideas of neutrality began with the gradual decline of 
the Roman Church and the Roman Empire. The earlier 
writers on international law, beginning with Hugo Grotius, 
endeavored to define neutrality, and their opinions were of 
considerable value to its development. But their ideas of it 
were more or less vague and imperfect, admitting the legality 
of warlike assistance rendered by neutrals to belligerents under 
certain circumstances as consistent with neutrality. 

Having no definite rules to regulate the relations between 
neutrals and belligerents, international commerce was entirely 
at the mercy of warring states and was afforded no protection 
whatever. The principle of the inviolability of neutral terri- 
tory, important as it has now become, was practically imknown 
down to the latter part of the i8th century. Belligerents were 
left entirely free to transport their troops across neutral terri- 
tory, to raise land and naval forces in neutral states, and to 
arm and equip vessels of war in neutral jurisdiction. States 
had, on the other hand, neither the right to prevent neutral 
operations in their territory nor were they held responsible 
for the acts of their subjects in entering the service of a foreign 
state, or from engaging in any other service hostile to one of 
the belligerents. The subjects of neutral states, as well as the 
states themselves, were at perfect liberty to give all sorts of 
warlike succours to either, or both, of the belligerent parties, 
as their individual interests or sentiments should dictate. 

The rudimentary ideas of neutrality were found in some 
of the early maritime codes of European countries, the Con- 
solato del Mare being the most famous of them all. The prin- 
ciple of the Consolato, namely, 'spare your friend and harm 
your enemy', was a manifestation of the growing desire to dis- 
tinguish neutrals from belligerents and for protecting the lat- 



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ter. Great Britain, acknowledging the justice of this principle, 
always insisted upon condemning enemy's ships and enemy's 
goods, while Hberating friend's ships and friend's goods. Some 
of the other European powers practiced this rule but none 
of them to the extent that England did. 

During the i6th century the Dutch, desirous of avoiding 
belligerent search on the high seas, introduced the liberal 
principle of free ship, free goods. Most of the European 
maritime powers did not welcome the introduction of this new 
principle, and the Dutch in their efforts to insert this rule in 
their treaties with other states introduced the converse prin- 
ciple of enemy ship, enemy goods. The French exercise of 
belligerent rights, followed later by Spain, was the most ex- 
treme of all the European countries. Under the doctrine of 
hostile infection, they condemned neutral vessels for carrying 
enemy goods. It goes without saying that under such cir- 
cumstances international trade was in a most deplorable condi- 
tion down to the end of the i8th century. 

The declaration of the independence of the United States 
in 1776 marks the introduction of a new era in the history of 
the laws of neutrality. "From the beginning of its political 
existence," says John W. Foster, "it (the United States) made 
itself the champion of a free commerce, of a sincere and genuine 
neutrality, of respect of private property in war, of the most 
advanced ideas of natural rights and justice; and in its brief 
existence, by its persistent advocacy, it has exerted a greater 
influence in the recognition of these elevated principles than 
any other nation in the world." The most important ques- 
tions, the settlement of which was largely influenced by the 
United States, were (i) the recognition of independence, (2) 
the inviolability of neutral jurisdiction, and (3) the freedom 
of neutral commerce. 

During the American war for independence, neutral France 
was drawn into war with England largely by the influence of 
American diplomacy. In the accustomed way of neutrals in 
those days the French Court gave freely, though secretly at 
first, all kinds of warlike assistance to the Americans in their 
struggle for independence. The formal recognition of Amer- 
ican independence by the treaty of amity and commerce be- 
tween the United States and France was premature, and as a 
result. Great Britain declared war against France. From this 

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instance, it became universally understood that a premature 
recognition of the independence of a revolted colony by a neu- 
tral country justified the mother-country in declaring war 
against the neutral. 

Since the successful establishment of the American Republic, 
the question of the recognition of independence and of bel- 
ligerency has become the subject of the most lively discussions 
between nations. More or less inspired by the American 
Revolution, many of the European colonies in the Western 
Hemisphere, especially those of Spain and Portugal, revolted 
from the mother-country and demanded from neutral powers 
the recognition of their political existence. The general rules 
of such recognition as understood at the present time, were 
largely established through the influence of the United States 
in its relations with the European and South American revolu- 
tionary movements. The wise discretion and the judicious 
statements of the American statesmen shown in the diplomatic 
correspondence of the time set forth a correct example which 
the nations of the world follow. 

During the American Civil War, the British recognition of 
the belligerency of the Confederate States aroused tremendous 
excitement and feeling against Great Britain in the United 
States. But the American government acquiesced in the Brit- 
ish interpretation of the recognition, thus acknowledging that 
it was not premature. Out of this dispute it was made clear 
that such a recognition is justifiable on the following condi- 
tions: when neutral commerce is affected by the contest, as 
the British trade was by the Civil War ; and when war actually 
exists, as it was manifested by Lincoln's blockade procla- 
mation. 

The celebrated Genet affair settled a most important ques- 
tion in the history of neutrality. The principle of the inviola- 
bility of neutral territory was first proclaimed by President 
Washington in 1793. In order to maintain the neutrality 
of the United States during the progress of the war between 
England and France, Washington warned the citizens of the 
United States, in his famous Neutrality Proclamation, to re- 
frain from any warlike participation in the contest. This 
Proclamation marked also the inauguration of the new prin- 
ciple that a neutral state has a positive duty to prevent its citi- 
zens from any hostile action in the service of a foreign state 

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against another with which the neutral country is at peace. 

In order to fulfill the neutral duties set forth in the procla- 
mation and to meet the difficulties that stood in the way of 
the execution of the orders by the government authorities, 
Congress passed the first Foreign Enlistment Act of 1794, pro- 
hibiting any person from performing unneutral services, within 
the jurisdiction of the United States, against any state with 
which the United States was at peace. 

During the revolutionary uprisings in South America, the 
government of the United States found the first Foreign En- 
listment Act inadequate as a means of procedure against the 
expeditions that were being fitted out daily in the ports of the 
United States to help the revolting colonies in their struggles 
for independence, and as a result the second Act was passed in 
1818. By this Act, the President of the United States was 
authorized to use the land and naval forces to prevent any 
illegal expedition and the District Courts were empowered 
to detain any vessel ready to sail unless a bond of security was 
furnished with the promise that the vessel should not be em- 
ployed contrary to the terms of the law. This Act became the 
basis for the legislation of many European states in later 
years, the act of 1819 in England being the most prominent. 
Under the difficulties of maintaining its neutrality during the 
revolutionary uprisings in South America, the British govern- 
ment closely followed the American Act of 1818, excepting the 
requirement of security to be furnished by the vessel about 
to depart. This part of the act was later adopted by Great 
Britain in her Foreign Enlistment Act of 1871, after there 
had been ample opportunity furnished during the American 
Civil War to prove the necessity of the requirement. The fact 
that the British government carefully followed the American 
neutrality acts could never be better shown than by the well 
known statement of Mr. Canning : "If I wished for a guide in 
the system of neutrality, I should take that laid down by 
America in the days of the Presidency of Washington and the 
Secretaryship of Jefferson . . ." 

Had the Alabama dispute been left permanently unsettled, 
the action of England would have furnished an unfortunate 
precedent for neutral states in future wars. The British 
government represented by Earl Russell, endeavored to apply 
to the expeditions of the "Alabama" and the other Confederate 

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ships the principle of individual contraband trade, and there- 
fore had repeatedly asserted that "Her Majesty's Government 
can not in any way interfere with these vessels." Further- 
more, the Earl refused to submit these claims to a court of 
arbitration that had been proposed by the United States. Treat- 
ing them as hostile expeditions, and not as contraband trade, 
the United States insisted upon claiming that it was a neutral 
duty incumbent upon the British government to have kept the 
ships from leaving English waters, and as it failed in this duty^ 
the British government must compensate the United States 
for the damage done to American commerce. These claims 
were never given up until the British government at last con- 
sented to submit them to a court of arbitration at Geneva, the 
final award of which compelled Great Britain to pay a heavy 
indemnity for the direct damages sustained by the citizens of 
the United States. By this Arbitration it was decided that the 
British government failed to use due diligence in allowing the 
Alabama and the other vessels to depart from British jurisdic- 
tion, and also by admitting them afterwards into its various 
colonial ports as public vessels of the Confederate States. Since 
the settlement of this dispute no neutral state would make the 
mistake of treating as contraband trade hostile expeditions 
fitted out within its own jurisdiction to serve against a nation 
with which it was at peace. 

At the time of the Revolution the United States followed the 
practice of Great Britain in regard to the treatment of neutral 
commerce. Enemy ships and enemy goods were condemned, 
and free ships and free goods were allowed to go free. But 
the United States government soon gave up this practice and 
in 1778 the principle of free ship, free goods, was adopted 
in a treaty with France. The French government, following 
the provisions of the treaty with the United States, in spite of 
its former practice of hostile infection, issued an ordinance 
exempting from seizure all neutral ships bound to or from 
enemy ports. But on account of the continued severity of the 
British rule, this ordinance was soon afterward revoked by the 
F nch government. 

.ice the United States began to mitigate the severity of 
the English treatment of neutral trade, it never advocated the 
principles of the Consolato del Mare. Its chief endeavor was 
to establish permanently the principle of free ship, free goods,. 

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and it therefore repeatedly asserted that the two maxims, free 
ship, free goods and enemy ship, enemy goods, were not in- 
separable. Although these two opposite rules were both 
adopted in some of the treaties between the United States and 
other parties during this period, the United States never ac- 
cepted the principle of enemy ship, enemy goods, alone. Either 
with or without the enemy ship, enemy goods, clause, the 
United States inserted the free ship, free goods, maxim prac- 
tically in all of its treaties down to 1799, when it deliberately 
abandoned the liberal rule in its treaty with Prussia. Through 
their experiences, the American statesmen discovered the fact 
that the United States was always the loser in the practice of 
the liberal principle, so long as the other powers would not 
adopt the same principle, and consequently decided not to insist 
any longer on the establishment of the liberal rule. 

During the struggle between Napoleon and England, each 
trying to cripple the other on the sea, the United States was 
the only power that still claimed the freedom of neutral com- 
merce. As a result of this claim, the French government was 
compelled to pay an indemnity to the United States for dam- 
age done to American ships by French cruisers. The English 
government still continued in its old practice of the Rule of 
the War of 1756 and of impressing British seamen from Amer- 
ican vessels on the high seas. The United States retaliated 
against these outrages by the Non-Intercourse and the Em- 
bargo Acts. By the Jay treaty of 1794, England agreed to pay 
to the United States a sum for the illegal captures made by 
British men-of-war under the authority of the Orders in 
Council. But still the impressment of seamen and the disre- 
gard of the rights of neutral trade kept on until 1812, when 
the United States at last declared war on England. From the 
close of that war the right of impressment as it was practiced 
by Great Britain and the doctrine of the Rule of the War of 
1756 have never become questions of serious international 
dispute. 

At the outbreak of the Crimean War, the United States 
proposed to the European powers to adopt two principles, viz. : 
(i) that free ships make free goods, with the exception of 
contraband of war, and (2) that neutral goods in enemy ships 
may not be confiscated, with the exception of contraband. 
After the war the powers assembled at Paris and set forth 

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these principles in connection with two others, in the celebrated 
Declaration of Paris. The articles in addition to those pro- 
posed by the United States were : ( i ) that declaring that block- 
ade to be binding must be effective, and (2) that doing away 
with the practice of privateering. Both of these had been 
advocated by the United States for some years, especially 
that against privateering, which had formed a part of Frank- 
lin's negotiations with Great Britain in 1783. The evil of the 
paper blockade had always been condemned by the United 
States, especially during and since the stormy days of the Na- 
poleonic Wars. Although the powers at Paris refused to adopt 
the Marcy Amendment, and the United States consequently de- 
clined to become a party to the Declaration, the direct influence 
of the United States upon that Declaration was, indeed, inesti- 
mable. 

From the early days of its history the United States had 
earnestly endeavored to restrict the list of contraband articles 
to the narrowest possible limit, in opposition to the English ten- 
dency of expanding it. Franklin went as far as to contend 
that the rule of confiscating contraband goods as a jpunishment 
for carrying them was too severe, and that, therefore, the de- 
tention of such goods should be substituted for this rule. The 
famous assertion of Jefferson that "our citizens have always 
been free to make, vend, and export arms" has ever since been 
accepted as the established rule ; that is, that a neutral govern- 
ment is not required to interfere with individual trade in con- 
traband goods so long as the goods are a part of a bona fide 
commercial transaction. 

The British condemnation of provisions as contraband was 
strongly protested by the United States. The compensation 
agreed upon in the Jay treaty to be paid by the British govern- 
ment for the illegal capture of American vessels and cargoes, 
was mainly the result of the controversy concerning provisions. 

The very important principle that neutral mail steamers be 
exempt from seizure was introduced by the United States dur- 
ing the Civil War. Secretary Seward's instructions that public 
mails of any friendly or neutral power should be delivered 
unopened and unsearched to the proper neutral authorities 
were communicated to all the foreign powers and the rule 
gradually became universal. 

The liberal tendency of the United States toward contraband 

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articles was totally changed during the Civil War. The list 
of contraband articles published by the Federal government in- 
cluded almost everything that might be useful in war. Further- 
more, in the case of the Trent, the Federal government at 
first advocated Captain Wilkes' principle of treating as ana- 
logues of contraband the belligerent diplomatic persons found 
on neutral vessels bound for a neutral port. From the dis- 
cussion that arose on this incident, however, it was clearly 
established that such persons are not to be treated as con- 
traband and that a belligerent captor should not forcibly extract 
such persons from a neutral vessel. 

It has been mentioned above that the practice of paper block- 
ade was always condemned by the United States. Napoleon's 
'continental system' caused much damage to American mer- 
chants and shipping, and as a result of it the French Chambers 
appropriated $5,00Ov00O, after much delay, to the United States 
as indemnity for the damage done. The European powers 
realized the evil of such blockades and formally declared at 
Paris in 1856 that blockades in order to be binding must be 
effective. 

The British government always denied the exemption from 
search of a merchant vessel sailing under the convoy of either 
a belligerent or a neutral war ship. The United States also 
condemned merchant vessels sailing under a belligerent convoy, 
but always contended that a neutral merchant vessel under the 
convoy of a ship of war of its own state must be exempt from 
the belligerent right of visit and search. This immunity 
of ships under neutral convoy was provided for in many of the 
treaties between the United States and other powers. In 1801, 
Great Britain also admitted the American usage by joining the 
Maritime Convention of St. Petersburg, which urged this prin- 
ciple. 

According to the British doctrine of continuous voyage, 
neutral vessels bound for an enemy port from an enemy or 
enemy colonial port, but stopping and breaking the voyage at 
some intermediate neutral port for the purpose of getting a 
set of papers showing a colourable importation, were con- 
demned when captured on their way from the intermediate 
neutral port to the ultimate hostile destination. But the United 
States went so far, in the Civil War, as to condemn vessels for 
contraband trading and attempt to break blockade even on the 

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first leg of the voyage when the ships were going from neutral 
port to neutral port, when there was suspicion that the goods 
had an ultimate hostile destination. This American doctrine 
was severely criticised as being unjustifiable, but since that time 
it has gained recognition as a part of international law by 
its incorporation in the London Conference of 1908-09. But 
here it was applied to the carrying of absolute contraband only 
and not to blockade. 

In the main, the influence of the United States upon the 
laws of neutrality has been profound and far reaching. Com- 
paring the present system of neutrality as a whole to that which 
obtained in the early days down as far as the year 1776, its 
advancement has been far greater than has been that of any 
other branch of international law. That this advancement has 
been a great blessing to all mankind goes without saying. The 
sphere of hostile operations has been vastly limited, the means 
of peaceful intercourse between nations in time of war has been 
guaranteed to a great extent, and, above all, the freedom of 
neutral commerce enlarged and safeguarded. In spite of all 
the opposition raised by the great European maritime powers, 
the United States, by its persistent advocacy of liberal viiews, 
contributed a larger portion of influence toward these accom- 
plishments than any other nation in the world. 






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