Neutrality as influenced by the U S : Rhee, Syngman, PhD 1912 Internet Archive

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Neutrality as influenced by the United Statesby Rhee, Syngman, 1875-1965


Publication date 1912Topics NeutralityPublisher Princeton, Princeton university pressCollection americanaBook from the collections of Harvard UniversityLanguage English

Book digitized by Google from the library of Harvard University and uploaded to the Internet Archive by user tpb.

Thesis (PH. D.)--Princeton university

Reviewer: videom - - August 6, 2021
Subject: Rhee : The dictator expelled by Korean people.
You should just studied in the U.S for your lifetime.
Your greed had ruined Korea and yourself. too.

Reviewer: Giboonjota - favoritefavoritefavoritefavoritefavorite - November 20, 2018
Subject: 당신의 통찰력 딱!
치고 갑니다



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Neutrality As Influenced by the United States 

A DISSERTATION presented to the 

Faculty of Princeton University 

IN Candidacy for the Degree of Doctor of Philosophy 

BY Syngman Rhee 

PRINCETON : PRINCETON UNIVERSITY PRESS 

1912 

=====

NOTE 

The work for this thesis was undertaken at the suggestion 

of Professor Edward Elliott, Dean of the College of Prince- 

ton University, to whom I wish to express my appreciation and 

gratitude for his assistance, and helpful criticism. I am also 

indebted to Professor Robert McNutt McElroy and Professor 

Alexander Thomas Ormond for the assistance and direction 

they have given me in this undertaking. I desire also to ex- 

press my sincere thanks to Dr. Andrew F. West, Dean of the 

Graduate School of Princeton University, for the help and 

advice he has given me during the period of this investigation. 

NEUTRALITY AS INFLUENCED BY THE UNITED STATES 

----

Chapter i. History of Neutrality down to 1776 A.D. 

I. Historical Introduction. 

• Opinion of Text-writers. 

II. Freedom of Neutral Commerce. 

A. Ownership of Goods and of Vessel. 

• Holland, France, Spain, Russia, Prussia and Great Britain. 

B. Limitations of Neutral Commerce. 

• Contraband of War. 
• Blockade. 
• Right of Visit and Search. 

III. Neutral Jurisdiction. 

----

Chapter 2 History of Neutrality from 1776 to 1793. 

I. Introductory Remarks. 

II. European Practice during this Period. 

A. Unneutral conduct of European Powers during the 

• American War of Independence. 
• French service to the American Revolution and the treaty of 1778 (premature recognition of independence). Steps leading to the declaration of war against France by Great Britain, and the treaty of Amiens. 

B. Disregard of neutral commerce. 

• French attitude changed. 
• British Orders in Council and the revival of the Rule of the War of 1756. 
• The attitude of other states, leading to the First League of Armed Neutrality. 
• Laws neglected by all powers during the French Revolutionary War. 

III. American Practice of Neutrality. 

A. General History. 

• Treaties in general. 
• Stipulations embodied in the treaty of 1778, leading to international complications and to the Proclamation of Neutrality. 

B. Neutral Jurisdiction. 

Genet affair and the Proclamation. 

(i) No belligerent court in neutral territory. 

(2) Positive duty of a neutral government. 

C. Freedom of commerce. 

• Free ship, free goods, and enemy ship, enemy goods. 

D. Limitations of neutral commerce. 

Contraband of war. 

Blockade. 

Right of visit and search. 

----

Chapter 3 History of Neutrality from 1793 ^o 1818. 

I. European Practice of Neutrality. 

A. Disregard of Neutral Commerce. 

(i) French Decrees. 

(2) British Orders in Council. 

(3) Second Armed Neutrality. 

(4) British Impressment of Seamen. 

(5) The War of 1812. 

n. American Practice of Neutrality. 

A. American Practice in General, 

(i) The Jay Treaty. 

(2) Relations with the French Republic. 

(3) Spanish- American Movements. 

B. Neutrality Acts. 

(i) Legislative Enactments. 

HI. Freedom of Neutral Commerce. 

IV. Limitations of Neutral Commerce. 

A. Contraband of War. 

(i) Contraband in General. 

(2) Doctrine of Continuous Voyage. 

B. Blockade. 

VI 

(i) Visit and Search in General. 

(2) Immunity of Convoy. 

(a) Neutral Merchantmen under Belligerent 

Convoy. 

(b) Neutral Merchantmen under their own 

Convoy. 

C. Right of Visit and Search. 

----

Chapter 4 History of Neutrality from 1818 to 1861. 

I. The British Foreign Enlistment Act. 

II. Filibusterers. 

III. The Monroe Doctrine. 

IV. The Declaration of Paris. 

V. Recognition of Belligerency and Independence. 

VI. The General Exercise of Neutral Rights. 

A. Contraband of War. 

B. Blockade. 

C. The Right of Visit and Search. 

----

Chapter 5 History of Neutrality from 1861 to 1872. 

I. Recognition of Belligerency. 

Relation between Great Britain and the United States. 

The British Neutrality Proclamation based upon Lin- 

coln's Declaration of Blockade. 

II. Continuous Voyage as applied to Blockade and Contra- 

band. Cases. 

III. Analogues of Contraband and the Right of Visit and 

Search. 

The Trent Affair. 

IV. The Alabama Claims. 

The Treaty of Washington. 

The Geneva Arbitration. 

Chapter 6 Summary. 

========

NEUTRALITY AS INFLUENCED BY THE UNITED STATES 

CHAPTER I 

History of Neutrality down to 1776 A.D. 

I. Historical Introduction 

The history of the law of neutrality has no source in an- 

tiquity. The political and hierarchical theories of government 

in the ancient world left no room for the existence of anything 

similar to neutrality. 

As late as the middle of the i6th century, there was no 

word exactly corresponding in meaning to the English word 

^Neutrality'. Hugo Grotius, 'the father of International Law^ 

termed neutrals, Medii (middle men),^ and Bynkershoek con- 

tented himself with the term 'Non-hostes'.^ 

With the decline of the Holy Roman Empire and the Papacy, 

and with the rise of national states, the desire for some 

established regulations to govern their relations commenced 

to express itself in the maritime codes as early as the nth and 

1 2th centuries. The earliest of these were the Amalfitan 

Tables which appeared in the latter part of the nth century ,^ 

and the laws of Oleron in the latter part of the 12th century.^ 

The Consolato del Mare was one of the earliest and most 

famous of all the collections of maritime regulations in force 

on the Mediterranean coasts. 

The earliest impulses toward neutrality were prompted 

by the growing desire for commercial intercourse and its later 

development was also largely due to the growth of maritime 

trade. The Crusaders opened the route for new trade on a 

large scale between the West and Near East. The fascinating 

tales of the 'Golden East*, told by the Polos and other Portu- 

guese and Italian navigators aroused among Occidental ad- 

venturers a desire for the gold and silver of the land of Cathay,, 

^ De Jure Belli ac Pads, edited by Whewell, Vol. Ill, p. 288. 

* Quaestiones Juris Publici, VoL I, Pt. IX, p. 67. Bjmkershoek also, 

says of neutrals "Bello Se Non Interponant". Ibid. 

' John Godolphin's A View of the Admiral Jurisdiction, pp. 10-14. 

and the discovery of the New World across the Atlantic 

brought the maritime Powers of Europe into sharp conflict. 

While the commercial enterprises were rapidly increasing 

and the Colonial Powers were struggling for maritime suprem- 

acy, there were practically no regulations regarding neutrals. 

Whenever a war broke out between two or more hostile states, 

all the neighboring states were at perfect liberty either to take 

part in the contest or to render any kind of warlike aid to one 

or both of the belligerent powers. Generally speaking, a prince 

might allow a belligerent to levy troops within his territory, 

or supply him with ammunition, troops, or ships of war. The 

only restriction was the fear of immediate war that might 

result from such hostile conduct. 

In course of time, efforts were made in time of peace by 

different Powers to bind other states by treaty engagements, 

mutually promising not to render any assistance to the enemy 

of either contracting party in case of war. Most of the Euro- 

pean Powers made such alliances with one another, thus secur- 

ing as many friends as possible with the hope of limiting the 

relative strength of their enemies. This was indeed the only 

means by which states were restrained from certain unneutral 

conduct down to the middle of the i8th century. 

On the other hand, the exercise of the belligerent rights of 

war had always been excessive. Nearly all the European 

Powers, when at war, constantly endeavored to cut off altogether 

the commercial intercourse of their enemies with other states. 

England has always been struggling for the monopoly of sea 

trade. As early as the time of Edward I, an attempt was made 

to induce the Flemings to close their commercial dealings 

with Scotland, and again in 1295, the masters of the neutral 

vessels lying in English ports were compelled to give security 

with promises not to trade with France.* Under various 

excuses, neutral commerce was frequently treated with undue 

severity, and this consequently led to preventive measures on 

the part of neutrals. 

The principle that neutrals have the right to trade with bel- 

ligerents without interruption in time of war, as in time of 

peace, was first advanced by the King of Prussia during the 

war of 1745.' This principle was carefully developed by the 

* Thomas Rymer's Foedera, Vol. I, p. 821 ; Vol. II, p. 747. 

° Robert Ward's Treatise on Maritime Laws, pp. 74-75. 

Commissioners of Frederick the Great, and the King's Tribu- 

nal was consequently instructed to establish the rules embodied 

in them. But in the face of the British opposition, Prussia 

reluctantly abandoned them.^ 

Opinion of Text-writers 

The legal status of neutral states was scantily treated by 

the early text-writers. Grotius* celebrated work, De Jure Belli 

ac Pacis, published in 1625, said little on the subject in the 

meagre chapter, De His Qui in Bello Medii Sunt. Compared 

with the present idea of neutrality, his conception was vague 

and imperfect. " . . it is the duty of neutrals", said he, 

*'to do nothing which may strengthen the side which has the 

worse cause, or which may impede the motions of him who is 

carrying on a just war . . . and in a doubtful case to act 

alike to both sides, in permitting transit, in supplying pro- 

visions, in not helping persons beseiged".^ He held that the 

states when parties to an alliance must protect each other.^ 

The first writer of real importance on the subject of neu- 

trality was Bynkershoek, whose Quaestiones Juris Publici 

appeared in 1737. In addition to enemies and friends, or allies, 

he distinguished a third class of states, the 'Non-enemies*, from 

which class he excluded all those that are under any treaty 

obligation to assist either the one or the other of the warring 

parties. " . . If I am a neutral, I must not do anything that 

will be advantageous to one party, lest I injure the other. The 

enemies of our friends can be looked at either as our friends or 

as the enemies of our friends. If they are regarded as our 

friends, we are right in helping them and giving them our 

counsel . . . But when they are the enemies of our f riiends, 

we are barred from such conduct which is inconsistent with 

that equality in friendship. . ."® 

Wolff defined neutrals in his Jus Gentium, published in 

1749, as those "who adhere to the side of neither belligerent", 

but he asserts that "when the war is a Causa Justa, the bellig- 

• Charles De Martens* Causes Celibres de Droit des Gens, Vol. II, pp. 

97-168. 

' Grotius, De Jure Belli ac Pacis, translated by Whewell, Vol. Ill, pp. 

288-289. 

" Ibid., Vol. II, pp. 4v35-438. 

* Translation from Quaestiones Juris Publici, Vol. I, Ft. IX, p. 69. 

erents have unimpeded access to neutral territory".^® Vattel 

laid down a new theory of nonassistance in 1758. "I do not 

say", he asserted, " 'to give assistance equally', but *to give no- 

assistance' ". But he contradicted himself by admitting that 

"it is lawful and commendable to succour and assist, .... 

a nation engaged in a just war. It is even a duty incumbent 

on every nation to give such assistance when she can give it 

without injury to herself ".^^ Vattel asserted, however, a very 

important principle: namely, the necessity of a declaration of 

war in benefit of neutrals. According to his view, declarations 

were necessary not only for the sake of belligerents themselves 

but also in order, (i) to warn neutrals about the existence 

of war, and (2) to justify the cause of war in the opinion of 

neutrals. 

Nearly all the authors sanctioned as lawful some acts which 

are not compatible with the present usage of neutrality. They 

held that war-like assistance was consistent with neutrality, 

as long as it be given in accordance with treaty stipulation. 

Such being the conception of neutrality, most of the European 

nations freely gave assistance to either belligerent down to the 

latter part of the i8th century. 

II. Freedom of Neutral Commerce 

A. Ownership of Goods and of Vessel, 

From the very beginning of the rudimentary idea of neu- 

trality, an attempt was made to distinguish the character of 

goods and ships according to their ownership. The treaty of 

1 22 1 between Aries and Pisa, which is the earliest known 

treaty regarding the rights of neutrals in Mediaeval Europe, 

provided that "any goods of Genoese or other public enemies 

of Pisa should be restored to the owner when discovered in a 

ship with men of Aries: and that men of Aries when taken 

on board Genoese vessel should be treated as if Genoese, and 

their goods should be retained".^^ 

The Consolato del Mare was made at Barcelona about the 

middle of the 14th century. Its contents were based upon the 

'•Wolff, Jus Gentium, p. 672. 

" VatteVs Law of Nations, translated by Joseph Chitty, 1861, p. 332. 

**Jean Marie Pardessus' Us et Coutumes de la Mer; ou. Collection 

des usages maritimes des peuples de Vantiquite et du moyen ages. Paris, 

1847, Vol. II, p. 303. 

simple rule, which might be briefly stated as "Spare your 

friend and harm your enemy." 

1. "If an armed ship, or cruiser, meet with a merchant ves- 

sel belonging to an enemy, and carrying a cargo, the property 

of an enemy, common sense will sufficiently point out what is 

to be done; it is therefore unnecessary to lay down any rules 

for such a case. 

2. "If the captured vessel is neutral property, and the 

cargo the property of enemies, the Captor may compel the 

merchant vessel to carry the enemy's cargo to a place of safety, 

where the prize may be secure from all danger of re-capture, 

paying the vessel the whole freight which she would have 

earned at her delivering port ; and this freight shall be ascer- 

tained from the ship's papers ; . . . 

3. "If the ship should belong to the enemy, the cargo being 

either in the whole, or in part, neutral property, some reason- 

able agreement should be entered into on account of the ship, 

now become lawful prize, between the captor and the mer- 

chant."^» 

According to this rule, an enemy's goods under a 

neutral flag were subject to confiscation, while a friend's goods 

were free, even though found in an enemy's vessel. The 

main object was to seize the goods of an enemy upon the 

high seas and to respect the property of a friend, whatever the 

character of the carrier. Neutral ships and neutral goods 

were spared, while belligerent ships and belligerent goods were 

liable to capture. The acceptance of the Consolato del Mare 

by European maritime powers was far from general. The 

individual interests of each state at each period were the main 

guide in their practice. 

Holland. — To the Dutch is due the honor of being the 

earliest champions of the freedom of the neutral carrier. The 

Dutch, the chief carriers of the world during the i6th century, 

whose obvious interest was therefore in obtaining the immunity 

of the goods carried in neutral bottoms, persistently endeav- 

ored to diminish the severity of belligerent practice. In 

opposition to the Consolato, they introduced a new principle 

that "free ships make free goods"; i. e., neutral ship frees 

enemy goods. They tried to induce other states to accept this 

proposition, and their efforts were crowned with success in 

''Sir C. Robinson's translation of the Consolato del Mare. Chapter 

cclxxiii, Sec. i ff. Travers Twiss, The Black Book of the Admiralty. 

twelve treaties made to that effect with other powers during- 

the period from 1650 to 1700.^* 

But the principle of free ship, free goods, was, in some of 

these treaties, coupled with the converse maxim, enemy ship, 

enemy goods. The reason is obvious. Whenever possible, 

the Dutch stipulated the former provision alone, but in case a 

power would not, they had to grant in return the opposing ^ 

principle of enemy ship, enemy goods. This new rule became 

gradually established in treaty regulations by the latter part 

of the 17th century, and Holland stood forth as the pioneer 

of the freedom of neutral commerce in time of war. The 

Dutch themselves were, however, far from being consistent 

in their practice of the principle which they had endeavored 

to establish. 

France, — France, in the days of her maritime greatness, 

exercised her belligerent rights in a manner most severe and 

uncompromising. During the i6th century she laid down the 

principle in several ordinances, that enemy ship makes friend's 

property lawful prize. By the Ordinances of 1538,^'^ i543f^^* 

and 1584,^^ she upheld that principle. This rule, based upon 

the theory "que la robe d'enemi confisque celle d'ami", con- 

demned the goods of a friend ladened in an enemy's ship. 

But in the early part of the 17th century, a tendency was shown 

toward the relaxation of this practice. The treaty with the 

Porte was the earliest to deviate from the rule embodied in 

the ordinances. This treaty was made in 1604 *^^^ provided 

that French goods on board the ships of the enemy of the 

Porte should be restored to the owner, and the goods on 

French ships belonging to the enemy of the Porte should not 

be liable to capture.^^ After this treaty, France was inclined 

during the middle of the 17th century toward the adoption of 

"Jean Dumonit, Corps Universal Diplomatique du Droit des Gens; 

with England, 1667, Vol. XIII, p. 50; 1674, ibid., p. 253; 1674. ibid., p. 

282; with France, 1661, Vol. XII, p. 346; 1662, Vol. XII, p. 412; 1678, 

Vol. XIII, p. 350; with Portugal, 1661, Vol. XII, p. 366; with Spain, 

1675, Vol. Xiri, 285; Sweden, 1667, Vol. XIII, p. 39. 

^^ Recueil dcs Anciennes Lois Franqaises, Vol. XII, p. 552. 

^Ubid., p. 846. 

" Ibid., Vol. XIV, p. 556. 

''Jean Dumont, Corps Universal Diplomatique du Droit des Gens, 

Vol. X, p. 40. 

the Dutch principles, exempting neutral ships and neutral car- 

goes from confiscation. In 1646, she had concluded a treaty 

with the United Provinces, exempting for four years Dutch 

ships and their neutral cargoes from confiscation, and declar- 

ing that "their ships should free their cargoes, notwithstanding 

the presence in it of merchandise, and even grain . . . 

belonging to enemies, excepting always the articles of contra- 

band of war".*^ The Declaration of 1650 to the same effect 

was contrary to the Ordinances of earlier dates above quoted. 

The treaty of 1655, with the Hanse Towns, stipulated that for 

fifteen years the Hanse flag would cover the cargo and the 

goods of neutral subjects, if seized on board the ships of 

the enemies of France.^^ By the treaty of the Pyrenees in 

1659, both the rules of free ship, free goods, and of enemy 

ship, enemy goods, were adopted in her stipulations with 

Spain.^^ France, however, soon returned to the old practice 

of her former Ordinances and even increased their severity. 

In 1681, the Ordinances of Louis XIV established a new prac- 

tice, afterwards known as "the doctrine of Hostile Infection or 

Contagion", by which not only the goods of a friend under an 

enemy flag, and enemy goods on a neutral vessel, but also the 

neutral vessel that was laden with enemy goods was liable to 

capture and confiscation. After this date, France generally 

adhered to this principle in her ordinances and treaties : yet her 

practice was so irregular and variable that it is almost impos- 

sible to generalize. Sometimes she held the 'infection' rule, and 

sometimes the free ship, free goods principle; at other times 

the competing rule of enemy ship, enemy goods, and still at 

other times both rules in conjunction. After 1744, however, a 

milder usage was observed, perhaps under the influence of the 

Dutch, and the exercise of belligerent rights was much less 

severe, not condemning the neutral vessel that carries enemy 

goods. In 1778, in her treaty with the United States, France 

adopted both maxims, free ship, free goods and enemy ship, 

enemy goods. "- 

"Jean Dumont, Corps Universal Diplomatique du Droit des Gens, 

Vol. XI, p. 342. 

Ibid., Vol. XII, p. 103. 

Ihid., p. 264. 

" Treaties and Conventions between the United States and other 

Powers, 1 87 1, pp. 249, 251. 

20 

Spain, — In her early practice, Spain followed the more 

severe usage of France and condemned enemy goods in neutral 

ships as well as neutral goods in enemy ships. She practiced 

even the doctrine of hostile contagion. By hcif treaty with the 

United Provinces in 1650, she adopted the principle of free 

ship, free goods. This was confirmed by numerous treaties, 

but it was not until 1780 that her national law definitely and ul- 

timately exempted from capture enemy goods on board a neu- 

tral vessel. 

Prussia. — The free ship, free goods principle was embodied 

in the Declaration of Frederick the Great, recommended by 

his Commissioners. In that year, 1751, Frederick the Great 

appointed a Commission to consider the legitimacy of seque- 

strating the capital of the British Silesian creditors. The Com- 

missioners pushed the neutral claims far beyond the limit then 

recognized and laid down some principles that became the 

established rules of international law in later years.^* They 

claimed for neutrals the right to carry on in time of war as 

in time of peace accustomed trade with either belligerent, 

except in contraband of war. They declared for the first time 

in the history of neutrality the principle of free ship, free 

goods, to be an actual principle of international law. This 

enunciation is often referred to as the beginning of the claims 

for neutral right to be universally acknowledged. These claims 

were, however, altogether abandoned by Prussia. 

Great Britain. — Great Britain was the only great power 

in Europe that maintained the rule of the Consolato del Mare 

in principle with any degree of strictness. She always recog- 

nized the old principle as a rule of the law of nations. But in 

practice she appears not to have been always consistent. After 

the introduction, by the Dutch, of the new principle of free 

ship, free goods, she adopted it for the first time in her treaty 

of 1654 with Portugal.^* Yet this was the combination of both 

maxims, free ship, free goods, and enemy ship, enemy goods. 

This treaty remained in force until the revision of the same in 

iSio, and then it was abandoned by the treaty of Rio de 

Janeiro. But no alteration of the old rule was made in her 

treaties with the United Provinces in 166 1 and with Denmark 

in 1655. She at times made treaties of diametrically opposite 

^ T. A. Walker, The Science of International Laxv, p. 401. 

^ Diiniont, Corps Universal Diplomatique, Vol. XII, p. 82. 

character with different states. In 1662, the new rule was 

included in her treaty with Spain, and from that time on until 

1796 thirteen treaties were made with Spain in each of which, 

except that of 1670, there was an article recognizing the new 

rule. At times she went so far as to adopt the French prac- 

tice of hostile infection under one pretext or another.^*^ 

Down to the i8th century it had been the practice of all 

European states to exclude foreign ships from commercial 

intercourse with their colonies, strictly preserving the colonial 

and coasting trades for their own shipping. In the war of 

1756, France, being in a position of naval inferiority to Great 

Britain, opened her colonial trade to Dutch neutral ships for 

the carrying of merchandise by giving them special licenses, 

while shutting off all other neutrals. The British captured 

the Dutch vessels and condemned them as lawful prize, on 

the ground that no trade prohibited in time of peace could be 

allowed in time of war. This principle has been known ever 

since as the Rule of the War of 1756. The British position ap- 

peared justifiable on the ground that the Dutch vessels could 

no longer be regarded as neutral, as they were practically 

engaged in the French belligerent service. But the chief diffi- 

culty was in the old theory of commerce that the colonial trade 

must be carried on exclusively in the interest of the mother- 

country. This theory is no longer tolerated in the new world 

of free commerce. 

B. Limitations of Neutral Commerce, 

Contraband of War, — The belligerent's right of seizing con- 

traband articles is founded upon his war prerogative, and its 

justification has always been recognized as incontestable. But 

as to the question, what should constitute contraband of war, 

opinion has never been uniform. Grotius' three general classes 

of articles, especially the third class, *Usus Ancipitis', things 

that could be used either for war or for peaceful purposes, 

were not universally accepted. The three classes are: (i) 

those articles which are of use in war alone, as arms; (2) those 

articles that are useless in war, serving only for luxury; 

and (3) those articles that could be used both for war and 

peace.^^ The practice of different nations in classification of 

contraband has been more divergent than uniform. 

38 

L. A. Atherley-Jones, Commerce in Time of War, pp. 285-286. 

Grotius, translated by Whewell, Vol. Ill, pp. 6-7, 

During the 17th century, an attempt was made to establish a 

general rule of contraband by enumerating contraband articles 

in treaty stipulations. The term 'contraband' was first employed 

in the treaty of 1625 between England and the Low Countries. 

England and Sweden agreed, in 1656, upon a list of contra- 

band articles. Some treaties excluded from the list of contra- 

band, provisions that were not intended for war-like use. 

France, by the treaty of the Pyrenees in 1659 with the 

Hanse Towns, recognized the exemption from contraband 

of provisions, save those that were intended foi the places 

blockaded or invested.^^ In 1667 and 1677, Great Britain 

in her treaties with France exempted from the list of contra- 

band, money, provisions, and even naval stores, while horses, 

harness, arms and munitions were declared contraband.^® 

Blockade. — ^The object of blockade is to subdue an enemy 

by depriving the inhabitants of the blockaded territory of their 

commercial intercourse by sea with the outside world. This, 

also, being one of the belligerent rights that arises from the war 

prerogative, naturally comes into conflict with neutral interests. 

It has always been claimed that a belligerent has prima facie 

a right to regulate the methods or measures necessary to reduce 

his enemy to submission. This claim was carried to such an 

extent that neutrals were not able to carry on their innocent 

commerce. 'Paper blockades' with no real force to maintain 

the investment are examples of extreme belligerent claims 

against neutral commerce. In 1584 Holland declared the ports 

of Flanders blockaded but she had no ships of war strong 

enough to make such declaration effective. 

A number of treaties during the i8th century show a ten- 

dency in the European states to mitigate the evils of blockade. 

With the gradual development of commerce, some rules were 

laid down attempting to regulate the conduct of blockading 

powers and the treatment of blockade-runners. In 1630, the 

States-General issued an Edict, asserting that some actual act 

of violation of blockade on the part of a neutral must be 

shown, otherwise a neutral vessel could not be charged with 

blockade-running. In 1689, Great Britain provided in her 

treaty with Holland that unless a public notification of the 

"Dumont, Corps Universal Diplomatique, Vol. XII, p. 266. 

* Ibid., p. 328. 

10 

blockade should be given before the departure of neutral ships 

from their ports, the ships would not regard the blockade as 

binding. But it was not until the following period when 

the question of blockade was given a serious test that the 

modem rules of blockade were developed. 

The Right of Visit and Search^-^l the several branches of 

belligerent rights, the right of visit and search affects the free- 

dom of neutral commerce in the most direct manner. Without 

visit and search, the exercise of all other rights, such as the 

prohibition of contraband goods, the enforcement of blockade, 

and the like, would prove impossible. This right was recog- 

nized as early as 1164 by the maritime powers of Europe in 

their relations with Mohammedan states.^® 

But as to the development of this right prior to the 19th 

century, authors are found to have very little to say except 

on the question of convoy. Convoy was a new system of 

immunity from visit and search demanded for neutral mer- 

chant ships sailing under the convoy of the warships of their 

own states. This system was introduced in the middle of the 

17th century, and has been adopted by many states of conti- 

nental Europe. During the Anglo-Dutch war of 1653, Queen 

Christina of Sweden introduced this system by ordering the 

convoying ships that "in all possible ways" they should decline 

to permit their convoyed merchant vessels to be searched.^® 

Great Britain has constantly denied the validity of this rule. 

III. Neutral Jurisdiction. 

The exclusiveness of neutral jurisdiction over its territories 

and territorial waters is an essential consequence of the doc- 

trine of national sovereignty. Within the sphere of neutral 

jurisdiction, therefore, no hostile activity or unneutral service 

is permissible. In case of either or both, neutrality is not per- 

fect. None of the territories, including the three-mile limit 

of maritime jurisdiction, that belong to a neutral flag may be 

used as a basis of hostile military or naval operations. 

"Travers Twiss, The Law of Nations, The Rights and Duties of 

Nations in Time of War, p. 147. 

■•John Thurloe, A Collection of State Papers, Vol. I, p. 424. 

II 

But the violation of this rule by the acts of the early wars 

was almost the general usage rather than the exception.*^ 

Grotius, with his vague conception of neutrality, holds that in 

a war of doubtful cause, a neutral must act alike toward both 

parties in the contest "in permitting transit and supplying 

provisions to the respective parties".^^ 

During the i6th and 17th centuries, a neutral state practical- 

ly allowed either of the belligerents to levy troops, to raise 

land and sea forces, and to lade and equip warships in neutral 

jurisdiction without much dispute. Charles I of England al- 

lowed an expedition of 6,000 men of his subjects to serve 

under the banners of Gustavus. In 1667 levies were freely 

made in England both for the French and for the Dutch. 

Charles II was requested by the allies to withdraw his auxiliary 

regiments serving with the French and Charles excused him- 

self on the ground of equal assistance.^^ Numerous treaties 

were made agreeing upon mutual assistance. Sweden 

and Great Britain agreed to raise soldiers and seamen at the 

beat of drums, and also to hire warships in each other's 

jurisdiction.** Thus practically all the European powers freely 

gave assistance to belligerents while remaining in a condition 

of "strict neutraHty". 

There was, however, a noticeable change in the nature of 

treaty provisions. Those treaties were at first mostly of defen- 

sive character, but in practice they were offensive, as they 

promised mutual war-like assistance. This offensive charac- 

ter of treaties soon became transformed into a prohibition of 

such defensive alliances, each agreeing not to give the enemy 

of the other any auxiliary forces or subsidies. By the treaty 

of 1675, between Louis XIV and the Duke of Brunswick, it 

was agreed not to permit any levies in the state, not to allow 

troops to pass through it, nor to permit the formation of any 

kind of magazine.**^ All that a belligerent could ask from a 

neutral state was to refrain from rendering any actual assist- 

ance to his enemy and from allowing the neutral territory to 

*' Richard Henry Dana, Notes on Wheaton's International Law, 1866, 

8th, Ed., Sec. 526. 

" Grotius, translated by Whewell, Vol. Ill, p. 293. 

^ Sir Thomas Burnetts History of His Own Time, Vol. I, p. 406. 

" Dumont, Corps Universal Diplomatique, Vol. XII, p. 125. 

"" Ibid,, Vol. XIII, p. 314. 

12 

be used as a basis of hostile activities. The idea of neutral 

duties was so vague and imperfect that down to the end of 

the i8th century there was no question as to the duty of a 

neutral state to prevent its subjects from any kind of hostile 

action within its jurisdiction. 

13 

CHAPTER 2 

History of Neutrality from 1776 to 1793 

I. Introductory Remarks. 

The Declaration of Independence of the United States pro- 

claimed to the world the birth of a new nation which was 

destined to further the peace of nations, to promote the free- 

dom of commerce, and to advance the principles of inter- 

national law, particularly along the lines of neutral right and 

neutral duty. Under the leadership of the most able and en- 

lightened statesmen, who saw that the real and permanent 

interests of their country lay in freedom from the interference 

of European powers, the United States set forth almost at 

the banning of its national career the most advanced and 

definite principles of neutrality. During this period, 1776 to 

1793* the obligations of neutral states as well as the commer- 

cial freedom of neutral individuals, were made clearer than 

ever. "A new nation in a new world", remarks John W. 

Foster, "untrammeled by traditions and institutions of past 

ages, bom to power and greatness almost in a day — from the 

beginning of its political existence it made itself the champion 

of a freer commerce, of a sincere and genuine neutrality, of 

respect for private property in war, of the most advanced 

ideas of natural rights and justice; and in its brief existence 

of a century 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 old commercial doctrine of Europe before the days of 

Adam Smith was a matter of might and not of right. The 

European powers admitted no rights to their colonial 

trade. The United States, on the other hand, has always 

struggled for the freedom of commerce. The Revolutionary 

War itself was largely actuated by the desire for the develop- 

ment of the vast natural resources of the American continent 

without interference from the mother-country. The undue 

* John W. Foster, A Century of American Diplomacy, p. 3. 

14 

exercise of belligerent rights and the irregular observance of 

neutral responsibilities among the European powers produced 

in America a conscious desire for the establishment of better 

and more uniform rules. 

11. European Practice of Neutrality during this Period 

A. Unneutral Conduct 

In the doubtful days of the American war for independence, 

Franklin's diplomacy in Europe was remarkably successful 

and military aid was soon promised by the French Court. 

Deane wrote to Robert Morris in September, 1776, "I shall 

send you in October, clothing for twenty thousand men, thirty 

thousand fusils, one hundred tons of powder, two hundred 

brass cannon, twenty-four mortars with shells, &c., &c."^ 

France as usual did not consider the legaUty or the illegality of 

such an interference in the American War. If there was any 

hesitancy in rendering open assistance to the United States, 

it was not due to the consideration of her neutral behaviour, 

but to the obvious fear of "bringing upon themselves the 

British storm".^ In fact the French gave all kinds of warlike 

stores to the colonies as early as 1776, though not publicly at 

first.* The ficticious mercantile firm under the name of Ho- 

talez et Cie., established at Paris to 'sell' to the Americans all 

kinds of military supplies, was practically a participation in 

hostilities. This firm existed from 1776 to 1783, during which 

time the disbursement for the aid of the American Revolution 

is estimated at over 21,000,000 livres.*^ Furthermore, cruisers 

were freely fitted out by Americans in French waters and were 

manned by Frenchmen.^ 

No sooner had Burgoyne's complete surrender finally cleared 

away the French fears and doubts, than France openly recog- 

nized the independence of the American Republic by con- 

* Francis Wharton, The Revolutionary Diplomatic Correspondence of 

the United States, Vol. II, p. 148. 

' M. Vergennes' Memorial to Louis XVI assured him that "the danger 

will not be incurred", even if the assistance were given. 

* Franklin's Complete Works, edited by Sparks, Vol. VIII, pp. 190-192. 

'Foster, Cent. Am, Dip,, p. 16. 

•Henry Wheaton, History of the Law of Nations, p. 291. 

15 

eluding on February 6, 1778, two separate treaties."^ The first 

of these treaties was of amity and commerce and the second, a 

defensive alliance. The French Court tried to justify itself by 

contending that the United States was de facto in possession 

of independence. The recognition was, however, premature 

and France anticipated that Great Britain would declare war 

on her as a result of the recognition. 

In these treaties France stipulated the acknowledgement of 

the independence of the United States and combined military 

movements in the contest, a joint consultation and mutual 

agreement for the peace negotiations with Great Britain at 

the conclusion of the war, and a guarantee for the French 

possessions in America.® Article XVII of the treaty of amity 

and commerce provided that "It shall be lawful for the ships of 

war of either party, and privateers, freely to carry withersoever 

they please the ships and goods taken from their enemies. . . ." 

and on the other hand, "no shelter or refuge shall be given 

in their ports to such as shall have made prize of the subjects, 

people or property of either of the parties" except under stress 

of weather. Article XXII further provided that foreign pri- 

vateers were not to be fitted out or allowed to sell their prizes in 

the ports of either. The negotiation of these treaties was based 

upon the remarkable draft "on the common rules of inter- 

national law" drawn up by John Adams, a member of the 

committee appointed by Congress in 1776 for that purpose. 

Of these stipulations, the two privileges secured by France, 

viz., (i) Admission for her privateers with their prizes while 

her enemies were excluded,® and (2) permission for her ships 

of war to refresh, revictual and repair, &c.,^® led to a serious 

controversy afterwards. The latter concession constituted, in 

addition to the provisions of the consular treaty, the basis for 

M. Genet's claims. Though denials had been made of the 

legality of 'stipulated aid', it was not until this time that pub- 

lic opinion began to assert itself in favor of absolute non- 

assistance. This view was strongly advocated by the United 

States, and in 1785, a provision was included in its treaty with 

^ Treaties and Conventions, Senate Document, 41st Congress, 3rd Ses- 

sion, 1871, pp. 241-253. 

' Treaties and Conventions, 187 1, pp. 241 et seq. 

*Ibid,, p. 251. 

^Ibid., p. 250. 

16 

Prussia to the effect that any kind of warHke succours was 

incompatible with neutrality.^^ 

Spain, in 1779, and Holland, in 1780, were drawn into war 

with Great Britain. For religious and political reasons the 

Spanish people had very little sympathy for the American 

Revolution. But animated by the military success of the 

Americans, the Spanish government declared war against 

Great Britain in the hope of regaining possession of Gibraltar. 

Among the Dutch, the American influence was almost as 

strong as in France. Their sympathy for the Americans was, 

indeed, too strong for bona fide neutrality. The declaration 

of war by Great Britain against the United Provinces on the 

20th of December, 1780, was "grounded upon the alleged fact 

of their having concluded a secret treaty acknowledging the 

independence of the United States of America,*' and also upon 

their failure to give the succours to Great Britain, which were 

stipulated by the existing treaty of alliance.^^ Before the 

declaration of the war, the First League of Armed Neutrality 

was formed and the United Provinces were invited to join the 

league. While the States-General still remained undecided, 

France and England were engaged in a diplomatice struggle 

in that country, the former endeavoring to confirm the main- 

tainance of Dutch neutrality, while the latter was demanding 

the Dutch military succours stipulated by the previous treaties. 

The British Court finally notified the States-General to the 

effect that in case the promised succours should fail in three 

weeks' time, the Dutch flag would no longer enjoy the stipu- 

lated privileges. And soon after this the British government 

authorized the seizure of Dutch vessels running between enemy 

ports.^^ Threatened by the British menace, the Dutch joined 

the Armed Neutrality, from which they in turn demanded, 

though with no success, the succours stipulated by the con- 

vention of that League.^* 

B. Disregard of Neutral Commerce 

If the standard of neutral conduct was such that neutral 

France could furnish warlike assistance to the United States, 

" Treaties and Conventions, 1871, p. 712. 

"Wheaton, Hist. Law of Nations, p. 303. 

"^Ibid., p. 302. 

"G. F. de Martens, Recueil des Traites, Vol. Ill, p. 223. 

17 

and neutral Holland was punished with a declaration of war 

for the failure to render stipulated succours to Great Britain, 

it is not surprising that the rights of neutral commerce were 

disregarded. France, while secretly engaged in violating the 

most common principles of neutrality, retained in her legisla- 

tion the severities of her practice against neutral trade. The 

principle that goods become enemy under an enemy flag was 

asserted and re-asserted in 1704, 1744, and 1778. 

But after the conclusion of the treaty of amity and com- 

merce with the United States, by which the free ship, free 

goods maxim was stipulated, a remarkable change took place 

in her treatment of neutral commerce. On July 26th of the 

same year the French Government issued an Ordinance ex- 

tending to all neutrals the benefits granted to the Americans. 

By this ordinance the French cruisers were prohibited from 

seizing neutral vessels even if bound to or from enemy ports, 

while the Court reserved the right of revoking such immunity 

unless the enemy should adopt a reciprocal measure within 

six months.^*^ This policy was largely actuated by the desire to 

conciliate the neutral powers in the coming contest. 

In January 1779, the French Government issued another 

Ordinance^® suspending the operation of the former Ordinance 

of July 26, 1778, in respect to the navigation cf all neutral 

powers except that of Holland. Thus the immunities of neu- 

tral trade based upon the free ship, free goods clause, em- 

bodied in the treaty of amity and commerce with the United 

States, were denied to all other neutrals except the Dutch.^^ 

This policy was pursued by the French government as an in- 

ducement offered to the Dutch so that they should remain 

neutral instead of giving the aid demanded by Great Britain. 

And besides, there is still another and more justifiable reason 

for the suspension of the Ordinance, i. e., the continuation by 

England of the harsh exercise of her belligerent claims. When 

the French Government issued this Ordinance, the power to re- 

voke these privileges in case the enemy should refuse to adopt 

a similar measure was clearly reserved. Instead of adopting 

any such measure of reciprocity, England suspended in March 

1780, by an Order in Council, all the special stipulations re- 

" Recueil des Anciennes Lois Frangaises, Vol. 25, p. 366. 

.^Recueil des Anciennes Lois, Vol. 26, p. 10. 

" Wheaton, Hist. Law of Nations, pp. 294, 302. 

18 

specting neutral commerce and navigition embodied in the 

treaty of alliance of 1674 with the United Provinces, on the 

alleged ground that the States-General had refused to fulfill 

the reciprocal conditions of that treaty.^® This Order 

directly led Holland to her adhesion to the First League of 

Armed Neutrality. 

In her imminent danger of confronting single-handed 

the combined forces of France, Spain and Holland, on the 

one hand, and the United States on the other, the British 

Court approached the Russian government with a friendly dis- 

position and sent Sir James Harris to Russia to sue for her 

friendship. The Empress Catherine was much inclined to the 

British view, but Count Panin, the Chancellor of the Empire, 

who was working in the interests of France and Prussia, con- 

vinced her that Russia's interests would not be maintained by 

such an alliance.^^ While the two governments were drawing 

into a diplomatic rapprochement, and while political intrigue in 

the Court of St. Petersburg was working against it, an incident 

of the harsh exercise of belligerent rights precipitated the Coali- 

tion of the Northern Powers against Great Britain. Two 

Russian vessels laden with corn were seized by Spanish cruis- 

ers on the ground that they were destined to Gibraltar, then 

in the possession of Great Britain.^® This was, indeed, nothing 

unusual in those days but the principle of free ship, free goods, 

introduced by the French- American treaty and promulgated by 

the ensuing French Ordinance, had undoubtedly inspired the 

neutral powers of the north against the extreme exercise of 

belligerent rights. Immediately after the capture of the Rus- 

sian vessels by the Spanish cruisers, the Russian Empress, at 

the instigation of Panin, issued the famous declaration which 

became the basis of the First Armed Neutrality. This declara- 

tion was drawn up on the 26th of February, 1780. The princi- 

ples set forth in the declaration were : (i) that all neutral ves- 

sels may freely navigate from port to port and on the coasts of 

nations at war; (2) that the goods belonging to the subjects 

of the powers at war shall be free in neutral vessels, except 

contraband articles; (3) that the Empress, as to the specifi- 

"Flassan, Histoire GSnSrale Raisonnee de la Diplotnatique Frangaise, 

Vol. VII, pp. 282-2^7. 

"Flassan, Diplomatique Frangaise, Vol. VII, p. 272. 

** Wheaton, Hist. Law of Nations, p. 296. 

19 

cation of the above-mentioned goods, hold to what is men- 

tioned in the loth and nth articles of her treaty of commerce 

with Great Britain, extending these obligations to all powers 

at war ; and (4) that to determine what is meant by a block- 

aded port, this denomination is only to be given to that port 

where there is, by the arrangements of the powers which at- 

tack it, with vessels stationed sufficiently near, an evident 

danger in attempting to enter it.^^ The principles declared by 

the Russian Empress were accepted by the other northern 

powers and the celebrated League was at once organized. This 

League proclaimed its intention of protecting neutral rights by 

means of an armed force against all belligerent violations. This 

was "constantly menacing the safety of the British Empire 

until the peace of 1783."^^ As soon as the peace of Versailles 

terminated the war between England on the one side, and the 

United States, France and Spain on the other, the northern 

powers began to lose their interest in the First League of 

Armed Neutrality. 

During the war of the French Revolution, all the members 

of this Confederation practically put aside the principles they 

had so solemnly upheld. Russia herself made common cause 

with Great Britain and Prussia in their attempt to induce 

Sweden and Denmark to cease all their commercial intercourse 

with France. In 1793 Russia, Spain, Prussia, Portugal, and 

the Empire united with Great Britain in her attempt to pro- 

hibit all commerce with France.^* With the support of the 

Continental powers. Great Britain revived on May 9, 1793, the 

Rule of the War of 1756 which had been disregarded during 

the American War of Independence. By this rule, all neutral 

vessels laden with the produce of French territory or of a 

French colony, or with provisions or munitions of war either 

for French colonies or French ports, were to be unmercifully 

captured by the British cruisers. Under this sweeping condem- 

nation the American ship-owners suffered most, for they re- 

mained the only neutral carriers while all the European powers 

identified themselves as belligerents. In 1793 England applied 

the Rule of the War of 1756 to the American trade with the 

French West Indies, and its enforcement was ardently de- 

** Martens, Recueil des Traites, Vol. Ill, p. 159. 

" Wheaton, Hist Law of Nations, pp. 303-4. 

^Martens, Causes CeUbres, Vol. IV, pp. 47-49. 

20 

fended by the British jurists, especially by Sir William Scott, 

on the old principle that 'trade prohibited in time of peace 

cannot be allowed in time of war/ But in fact there is no 

analogy between the two cases of 1756 and 1793. In the 

former case the property carried by the neutral Dutch was 

with justice considered as enemy property on the plain ground 

that the Dutch identified themselves completely with the hos- 

tile character of France by arming their neutral flag with the 

special license of belligerent France. But in the latter, there 

was no special license for any particular state or states. The 

colonial trade was thrown open to all neutrals with no dis- 

tinction whatever. The application of the old principle to the 

changed condition was simply an unwarranted exercise of the 

British belligerent power. 

In addition to the practice of this rule the British Govern- 

ment issued several Orders in Council during 1793 ^^^ ^794y 

the most obnoxious of which was that of June 8, 1793. This 

was the occasion for the famous instruction of Jefferson of 

September 7, 1793. The history of the laws of neutrality dur- 

ing this and the ensuing period is, in the main, that of a series 

of struggles and controversies between Europe and America — 

the former claiming the belligerent right to regulate neutral 

commerce in war, and the latter maintaining the neutral right 

to continue their accustomed commerce in time of war as 

in time of peace. 

III. American Practice of Neutrality 

A. General History 

During the Revolutionary War the United States adopted 

the general principles of international law as they existed in 

Europe. Congress appointed a committee in 1776 to draw up 

"general principles of international law", which might be uni- 

formly followed by their diplomatic agents abroad in their 

treaty negotiations with other states. This committee, con- 

sisting of Dickinson, Franklin, John Adams, Benjamin Har- 

rison, and Robert Morris, submitted to Congress a draft which 

was largely the work of Adams. It was asserted in this draft 

that the subjects of each contracting party shall pay no other 

duties or imposts than the nationals of the other party shall 

pay, but shall enjoy, as the nationals, all the rights, liberties. 

21 

privileges, immunities and exemptions in trade, navigation 

and commerce ; that the ships of war, and convoys of each con- 

tracting party shall protect and defend all vessels and effects 

belonging to the subjects of the other; that neutral goods in 

enemy ships be confiscated, unless laden before the declaration 

of war; that each party will suffer no injury by war vessels or 

privateers on the subjects or property of the other, and all 

the subjects of each party shall be forbidden from doing any 

such damage or injury; that no subject of either party shall 

apply or take any commission or letter of marque for any ship 

or ships to act as privateers against the other; and that sub- 

jects of each party shall sail with all manner of liberty and 

security from any port to the places of those who are at 

enmity with the other party. In reference to this draft, John 

W. Foster said, "It sets forth principles which had not up to 

that time been incorporated in any treaty, but which have 

since been recognized by all nations it defined neu- 

trality more perfectly and correctly than had been done before^ 

and assigned to commerce guarantees not therefore enjoyed."^* 

The American government had observed the British usages 

of international law until 1784, when Congress issued an ordi- 

nance instructing the ministers abroad to follow the principles 

of the Armed Neutrality as a basis for treaty negotiations, if 

acknowledged reciprocally by other belligerent states.**^ The 

French treaty of 1778 was evidently based upon the principles 

embodied in the draft, mentioned above as having been 

drawn up by the committee of 1776. Another im- 

portant treaty based upon these principles is that of 1782 with 

Holland. The latter treaty provided for the free navigation of 

the merchant ships of either party between enemy ports, con- 

traband excepted; and the punishment and reparation for in- 

juries done to either party by the vessels of war or privateers 

of the other.^® In the peace negotiations with Great Britain in 

1783 Franklin advocated the abolition of privateering. "The 

practice of robbing merchants on the high seas", he said, "a 

remnant of ancient piracy, though it may be accidentally bene- 

ficial to particular persons, is far from being profitable to all en- 

** Foster, Century of American Diplomacy, p. 19. 

** Francis Wharton, Diplomatic Correspondence, Vol. VI, pp. 801 

et seq. 

** Treaties and Conventions, 1871, pp. 610-61 1. 

22 

gaged in it Even the undertakers (privateers) finally ruin 

themselves; a just punishment for their having wantonly, un- 

feelingly ruined many innocent, honest traders and families, 

whose substance was obtained in carrying the common interest 

of mankind." And again in 1785, he said in his private corres- 

pondence that "the United States, though better situated than 

any other nation to profit by privateering are endeav- 

oring to abolish the practice by offering in all their treaties 

with other powers an article engaging solemnly that 

no privateer shall be commissioned on both sides." 

The same provisions embodied in the Dutch treaty of 1782^^ 

were stipulated in that of 1783 with Sweden,^® as far as 

neutral trade was concerned, and also in the more important 

one of 1785 with Prussia.^® But no definite stipulations, equiv- 

alent to the provisions of these treaties were inserted in the 

treaty of amity, commerce, and navigation with Great Britain 

of 1794. All that was said concerning privateers was that 

"more abundant care may be taken for the security of the re- 

spective subjects and citizens of the contracting parties, and 

to prevent their suffering injuries by the men-of-war, or priva- 

teers of either party. . ."^® This shows that Great Britain still 

held to the severity of her old practice. 

The Prussian treaty of 1785 was much appreciated by the 

Americans at the time chiefly for its moral influence favorable 

to the new Republic; for Frederick the Great treated the 

American Diplomats more civilly than any other power did 

and he also advised Louis XVI to enter into treaty alliance 

with the colonies even before the treaty of 1778 was concluded. 

Legally speaking, it is far more important for its stipulations 

regarding neutrality. This treaty was largely the work of 

Franklin, one of the negotiators, who succeeded in inserting 

in it the important principles of neutrality ; namely, the regula- 

tions against privateering, and the immunity of private prop- 

erty,*^ for which he had so long contended. It was agreed 

that "all persons belonging to any vessel of war, public or 

private, who shall molest or injure . . . the people, vessels, 

" Treaties and Conventions, 1871, pp. 607-616. 

^Ibid., pp. 799-807. 

''Ibid., p. 715. 

^Ihid., p. 329. 

" Wheaton, Hist. Law of Nations, pp. 306-308. 

23 

or effects of the other party, shall be responsible . . . for 

damages . . ''^^ and that "neither of the contracting Powers 

shall grant or issue any commission to any private armed ves- 

sels, empowering them to take or destroy such trading vessels, 

or interrupt such commerce".^* It was further agreed that 

"neither one nor the other of the two states would let for hire, 

or give any part of its naval or military forces to the enemy 

of the other to help it or enable it to act offensively or defen- 

sively against the belligerent party".'* Thus the treaty set 

forth definitely the duty of a neutral state not to give succour 

under treaty obligations. In addition to this the freedom of 

neutral commerce guaranteed by this treaty was by no means 

less important than the rest. Mention should be made here 

that Franklin's advanced ideas for the exemption of private 

property and the abolition of privateering were not appreciat- 

ed by his contemporaries, who referred to them as a " 'beauti- 

ful abstraction', a dream of the philosopher who vainly sought 

to mitigate the cruelties of war".**^ Privateering was formally 

abolished in 1856 by the Declaration of Paris. The exemption 

of private property has not yet been accepted and on this ac- 

count the United States refused to adhere to the Declaration 

of Paris, 1856. 

The consular treaty of 1788 with France, ratified in 1789, 

caused much diplomatic embarrassment to the United States 

government. By this agreement it was stipulated that "the 

Consuls and Vice-Consuls shall enjt)y a full and en- 

tire immunity . . . ", that they "shall be exempt from all 

personal service . . . ",'® that they may "establish agents in 

different ports and places of their departments where necessity 

shall require . . . '\*^ that they "may establish a chancery, where 

shall be deposited the Consular determinations, acts and pro- 

ceedings . . . ", and that they shall exercise police over all the 

vessels of their respective nations . . ."'® This treaty furnished 

ground for M. Genet's exorbitant claim to the right of estab- 

'^ Treaties and Conventions, 1871, p. 711. 

"Ibid., p. 713. 

**Ibid., p. 715. 

" Foster, Century of American Diplomacy, p. 93. 

•• Treaties and Conventions, 1871, p. 261, Art. II of the treaty. 

" Ibid., p. 261, Art. III. 

""Ibid., p. 264, Art. VIII. 

24 

lishing Consular Prize G>urts in the territory of the United 

States. But there was no such concession made in it. 

Nevertheless, the privileges stipulated by this treaty were 

somewhat more extensive than usual. At any rate, this treaty, 

in addition to that of 1778 with France, led to the international 

embroglio. Out of this complication, however, the United 

States, fortunately for the history of the laws of neutrality, 

steered the right course — a course which all other nations were 

destined to follow sooner or later. The chief questions in- 

volved in this complication were the principles of free ship, 

free goods, and that of neutral sovereignty based upon its ter- 

ritorial jurisdiction. 

B. Neutral Jurisdiction 

The question of French goods taken out of American ships 

by British cruisers without resistance on the part of the United 

States was not the only thing concerning which France com- 

plained. She was not at all satisfied with the American in- 

terpretation of the treaty provision that her enemy's public 

ships could be admitted to American ports. The United 

States did not consider herself bound by that treaty to exclude 

from her ports the public ships of the enemy of France. It 

was held by the United States that the treaty did entitle 

the French ships to enter its ports, but it did not expressly 

prohibit the vessels of other powers from entering American 

ports and harbors. 

While the United States was thus embarrassed in its re- 

lations with France, Great Britain and Holland complained 

about special privileges exclusively granted the French priva- 

teers by the United States, permitting them to enter American 

ports and harbors with their prizes. Such was the diplomatic 

entanglement of the United States when the famous episode 

of M. Genet occurred. 

Edmond Charles Genet, the French minister, landed at 

Charleston and started to enlist American citizens to cruise 

against British commerce, to equip vessels, commission pri- 

vateers and set up prize courts in the French Consulate "as 

if the United States had declared war against Great Britain." 

He claimed these rights as based upon the treaty of alliance 

and the consular treaty. At that time the opinion of the 

American people was widely divided as to the reception of 

25 

Genet, and the treaty relations with the French Republic. In 

some parts of the country great enthusiasm was evinced in 

favor of the French movement. Remembering the war with 

Great Britain and grateful for the French assistance, the 

United States was naturally sympathetic toward the revolu- 

tionary sentiment, of which France was then the very hot- 

bed. Even Jefferson himself was freely accused of being inti- 

mately connected with the French party. He was indeed the 

heart and soul of the French sentiment in America. Genet 

relied too much upon the pro-French sentiment. He went so 

far as to arm himself with the public enthusiasm against the 

government to which he was accredited. But in spite of all 

this, Washington's farsighted policy of isolating the American 

Republic from the politics of monarchical Europe finally pre- 

vailed in the Cabinet, which asserted the principle of the in- 

violability of neutral jurisdiction. The most important ques- 

tions settled at this time were : ( i ) that no belligerent prize 

court should be established in neutral jurisdiction, (2) that a 

neutral government must prevent its subjects from unneutral 

services, and (3) that the bona fide trade of neutral indivi- 

duals must not be interrupted. 

(i) No Belligerent Court in Neutral Jurisdiction. — ^The 

question whether or not a belligerent might condemn its prizes 

in neutral jurisdiction had been a political and not a legal one. 

Before the end of the i8th century, the legality of a trial of 

prizes prosecuted by a competent court of the captor estab- 

lished in a neutral port was held as unquestionable. Most of 

the European nations frequently claimed such exercise of 

belligerent rights as the usual functions of their consuls in 

foreign jurisdiction. Many cases prove that France held this 

practice as her ordinary usage. M. Genet himself maintained 

that to grant commissions and letters of marque was one of 

the usual functions of French consuls in foreign ports.** As 

late as 1799, in the well-known case of the "Flad Oyen", an 

English vessel captured by a French cruiser and condemned by 

a French Consular Court within the neutral jurisdiction of 

Norway, France rejected the English demand for its restor- 

ation. 

"W. E. Hall, International Law, 5th edition, p. 591. 

26 

This practice was put an end to by the United States Gov- 

ernment in the case of Genet's prizes, particularly that of 

the "Grange".*® The "Grange" was a British ship captured 

by a French frigate in Delaware Bay and taken as a prize into 

the port of Philadelphia. A demand was made for the restor- 

ation of the vessel and the liberation of the crew on the ground 

that the capture was made in the jurisdiction of the United 

States, a neutral, and in violation of the law of nations.*^ Mr. 

Jefferson, though the leading spirit of the French movement 

in America, emphatically asserted that the establishment of the 

French Consular Courts in the jurisdiction of the United States 

was an act unwarranted either by the usage of nations or by 

the treaty stipulations between the United States and France, 

and also that such an act was one of disrespect toward the terri- 

torial sovereignty of the United States. The restoration of the 

"Grange" was promptly ordered and the decision of the Presi- 

dent on the complaint of Great Britain was communicated by 

Jefferson to Hammond, the British Minister.*^ Thus the prac- 

tice of the principle that neutral sovereignty was inviolable was 

well set on foot. Since that time opinion has gradually chang- 

ed, so that now the establishment of consular courts of a belli- 

gerent power in the territory of a neutral state is no longer 

admitted as compatible with the law of the nations. 

(2) Positive Duty of a Neutral Government. — ^The most 

important principle in connection with neutrality that was 

settled at this time was that a neutral government is bound 

not only to abstain from participating in hostile activities, but 

also to exercise care in preventing all persons, citizens or 

foreigners, within its jurisdiction, from committing acts of 

a hostile character. Neutrality consists not only in negative 

abstention from certain unneutral services and practices, but 

also in a positive observance of certain neutral obligations. 

This new attitude was formally inaugurated by Washington's 

Neutrality Proclamation of 1793. The steps that led up to 

^ American, State Papers, Vol. I, p. 144. 

** Thomas Jefferson Randolph, Memoirs, Correspondence and Mis- 

cellanies from the Papers of Thomas Jefferson, Vol. Ill, p. 227, Jeffer- 

son to M. de Ternant. 

*" Randolph, Correspondence of Thos. Jefferson, Vol. Ill, p. 230. 

27 

this most important and famous Proclamation were prompted 

by the Genet affair. 

Prior to the arrival of the French Minister at Charleston, 

news from the American ministers abroad reached Washing- 

ton informing him of the special object of Genet's mission to 

America. As early as April 12, 1793, four days before 

Genet's arrival, President Washington expressed his opinion 

in his letter to Secretary Jefferson to the effect that it be- 

hooved the government to adopt a strict neutrality and to 

prevent the citizens of the United States from involving the 

country with either belligerent. As the result of a resolution 

adopted at a Cabinet meeting, he issued a proclamation on 

April 22nd, warning the citizens of the United States to re- 

frain from any proceedings which might contravene a strict 

and severe neutrality, and at the same time withdrawing all 

protection from any subject aiding or abetting hostilities or 

carrying contraband. The main feature of this Proclamation 

lies in the warning against "all persons, who shall within the 

cognizance of the courts of the United States, violate the law 

of nations with respect to the powers at war. . . " 

In spite of this rule so definitely proclaimed by the Presi- 

dent, Genet started to offer commissions to American citizens, 

to issue letters of marque, and to fit out privateers to prey 

on British commerce. Official protests were soon made by the 

United States Government. The general disposition of the 

protests was well expressed in Jefferson's letter of June the 

fifth, the most important of all the communications concerning 

the dispute. He said in the letter that "it is the right of 

every nation to prohibit acts of sovereignity from being ex- 

ercised within its limits by any other nation, and the duty of 

a neutral nation to prohibit such as would injure one of the 

warring powers ; that the granting military commissions, with- 

in the United States, by any other authority than their own, 

is an infringement on their sovereignty, and particularly so 

when granted to their own citizens, to lead them to commit 

acts contrary to the duties they owe their own country . . ."** 

A letter of Jefferson to Mr. Morris, American Minister in 

France, especially valuable as a diplomatic document, can not 

be neglected here. In this letter, which was dated August i6th, 

he asserted that "a neutral nation must observe ... an exact 

^Am. State Papers, Vol. I, p. 150. 

28 

impartiality towards the parties .... and that no succour 

should be given to either, unless stipulated by treaty, in men, 

arms or anything else directly serving for war ; that the right 

of raising troops, being one of the rights of sovereignty, and 

consequently appertaining exclusively to the nation itself, no 

foreign Power or person can levy men, within the territory 

without its consent; that if the United States have 

a right to refuse permission to arm vessels and raise men 

within their posts and territories, they are bound by the laws 

of neutrality to exercise that right and to prohibit such arma- 

ments and enlistments".** Here Jefferson also admitted the 

legality of "stipulated succours", which is not compatible with 

the modern rules of neutrality. 

The intolerable irritation on the part of the American gov- 

ernment finally brought about the determination to demand 

the recall of Genet and to take efficacious measures against 

further violation of its neutrality. In consequence of this 

request, the French Government superseded Genet in De- 

cember by M; Fauchet as its new minister, and instructed 

him to disarm the privateers and to remove the consuls who 

violated Washington's Proclamation. But before Genet with- 

drew from the post, the famous case of Gideon Henfield was 

prosecuted, leading to the passage of the most important act 

of 1794. 

Henfield, an American citizen, desirous of going to Phila- 

delphia from Salem, Massachusetts, his native town, but un- 

able to pay full fare, asked the master of a packet for pas- 

sage. He was put on board a British ship, the "William", 

which had been captured by a French privateer, the "Citoyen", 

three days before. As prize master of the "William", Hen- 

field reached his desired destination. Upon his arrival, how- 

ever, he was indicted for serving on board the French cruiser 

in contravention of the laws of the United States.*^ The 

verdict of the jury, not guilty, was received by M. Genet 

and his sympathizers with overwhelming exultation. But 

this verdict invalidated the rules as proclaimed by the Presi- 

dent and maintained by his Cabinet.*® Thus the Henfield Case 

proved the inability of the government to enforce the rules 

*^Am, State Papers, Vol. I, p. 168. 

* Francis Wharton, State Trials of the United States, pp. 49-89. 

**John Marshall, Life of Washington, Vol. V, p. 435. 

29 

enunciated by the Proclamation. This was the direct cause of 

the passage of the First Foreign Enlistment Act of 1794.*^ 

Under these circumstances, Washington urged Congress to 

make effectual the decisions of the government on neutrality. 

In his Annual Message of December 3rd he suggested to 

Congress "measures for the fulfillment of our duties to the 

rest of the world".*® This message constitutes the basis of 

the enlistment act. Meanwhile instructions were issed to the 

collectors of customs, setting forth "the rules concerning sun- 

dry particulars as laws of neutrahty", prohibiting the 

"equipment of vessels in the ports of the United States, which 

are of a nature adapted for war", and "the enlistment of the 

inhabitants of the United States." Under these rules, asylum 

to armed vessels of a belligerent, originally fitted out in the 

United States, or to the prizes of any such vessel, was to be 

denied. This was not sufficient, however, to carry out the 

neutral obligations as defined by Washington's cabinet, and 

the steps gradually leading to the passage of the famous act 

reveal the earnest desire of American statesmen for the de- 

velopment of neutrality. 

C. Freedom of Neutral Commerce 

Not less important than the principle of neutral jurisdic- 

tion was the problem of the freedom of neutral commerce. 

Ever since the Dutch led the way, in opposition to the old 

rule of the Consolato del Mare, by introducing the new prin- 

ciple that the neutral flag covers enemy goods, many of the 

lesser European powers attempted to follow their lead. But 

the great powers, with the exception of England, adopted no 

uniform rule. The latter adhered to the old doctrine, "Spare 

your friend and harm your enemy." The Dutch themselves 

soon abandoned their new principle, perhaps because of the 

weakness of their naval forces. The French seized not only 

the enemy goods in neutral ships, but also the neutral ships 

that carried enemy goods, under their rule of 'hostile con- 

tagion', which had been in frequent operation until the middle 

of the i8th century. 

The United States, accepting the general usages of Great 

*' See next Chapter. 

**J. D. Richardson, Messages and Papers of the Presidents, Vol I, 

p. 140. 

30 

Britain, observed the rule that neutral goods in enemy ves- 

sels are free, while enemy goods in a free ship are enemy, as 

the common law of nations. All of the American jurists ac- 

cepted this view during the war for independence and even 

in later days. But the government soon realized the severity 

of the British practice and at once began to adopt milder 

rules instead. By the first three treaties that the United 

States concluded with states other than Great Britain, namely, 

that of 1778 with France, that of 1782 with the Netherlands, 

and that of 1783 with Sweden, there was stipulated the free 

ship, free goods maxim. But by these treaties the converse 

maxim, enemy ship, enemy goods was also adopted. This 

was perhaps due to the general opinion of the time, which 

still favored the old, severe usage. But the combination of 

these two rules was far from satisfactory to the liberal views 

of the American statesmen. They advanced still another step 

and insisted upon asserting that the two principles, free ship, 

free goods, and enemy ship, enemy goods, were not insepar- 

able. Persistent efforts were made to have inserted in the 

treaties made after the adherence to the Armed Neutrality, 

the principle of free ship, free goods without the opposing 

rule, enemy ship, enemy goods. This view was consistently 

confirmed by most of the treaties, including the Prussian 

treaty of 1785, in which the free ship, free goods maxim 

alone was asserted. At times not only enemy goods in a 

free ship but also free goods in an enemy ship were protected, 

and the rule of ^hostile contagion' was never practiced. 

By the treaty of 1778 with France, the United States up- 

held the principle of free ship, free goods. After the con- 

clusion of this treaty. Congress, affirming the free ship, free 

goods stipulation, issued an ordinance recommending the rec- 

ognition of this principle in their treaties with other powers 

upon the condition of reciprocity.*® The French government, 

following the American example, also issued an ordinance 

in the same year prohibiting the capture of neutral 

vessels running between enemy ports. This ordinance 

prohibited the seizure of neutral vessels bound to 

and from enemy ports, and meanwhile the French Government 

reserved the right to withdraw this immunity in six months 

if their enemies failed to adopt the same measure reciproc- 

*• Dana, JVheafon, p. 587. 

31 

ally. France continued to adopt this principle in her treaties 

down to 1793 when all the European powers abandoned their 

rules of maritime commerce.*^® The French immunity was 

also conditioned upon reciprocity. But Great Britain ob- 

stinately refused to relax her old practice and continually 

condemned the goods of her enemy, France, in American 

neutral ships, according to the practice of her old doctrine, 

while the latter insistently demanded from the United States 

Government the actual fulfillment of the treaty oblfgatiohs by 

protecting French goods in American vessels from seizure by 

her enemy, the British. The United States found itself ex- 

ceedingly embarrassed but so long as Great Britain would not 

abandon her accustomed rule in any amicable way, it was not 

expedient for the United States to take up arms against Eng- 

land in order to protect French merchandise. 

Under these circumstances the United States excused itself 

by virtue of the English usage. Mr. Jefferson said in his 

reply to the French complaints that by the general law of 

nations, the goods of a friend found in the vessel of an 

enemy are free and the goods of an enemy found in the 

vessels of a friend are lawful prize.*^^ This was simply a re- 

assertion of the rule embodied in the Consolato del Mare. 

He further declared that the treaty of 1778 was an exception 

to the general rule, because it had been concluded before the 

United States acceded to the Armed Neutrality, and that 

since the formation of that League, the stipulation of the said 

treaty was no longer binding. This statement was certainly 

inconsistent with the early American views, maintained in the 

first three treaties, and a tendency was shown in it to return to 

the British doctrine. This was evidently a diplomatic excuse 

under pressure of French demand. While France was drift- 

ing back to her old practice, and while all the great powers 

of Europe actually suspended the operation of the principles 

of the League of the Armed Neutrality, the efforts of the 

United States Government were largely successful in in- 

ducing several other states to adopt the milder measures in 

their treaties. 

The Prussian treaty of 1785 was the most important dur- 

ing this period. This was the first treaty by which the United 

■•Martens, Recueil, Vol. II, p. 632. 

'^Randolph, Corres. of Thos. Jefferson, Vol. Ill, p. 486. 

32 

States adopted the free ship, free goods maxim without the 

correlative maxim, enemy ship, enemy goods. This treaty as- 

serted only that neutral commerce with either belligerent will 

not be interrupted and that neutral vessels can go to and 

from belligerent ports with enemy goods and even with enemy 

men not active in warlike services.*^^ 

The Moroccan treaty of 1787 stipulated the new rule with- 

out the old rule of enemy ship, enemy goods.*** Judging by 

the merit of the new principle itself, it is not surprising to see 

that the weaker states, like the Netherlands, Sweden and 

Morocco, agreed with the United States. But the fact that the 

greater powers, like Prussia, France and even Spain, as well 

as Great Britain, also accepted this principle by the treaties of 

Versailles in 1783 seems rather remarkable.*^* Spain, the 

strongest advocate of the French usage, abandoned 

the old principle, enemy ship, enemy goods, as early 

as 1780 and even exempted by its municipal law all 

neutral vessels that carried enemy goods, as well as the enemy 

goods found in them.**' Practically all the European 

powers showed by adhering to the Armed Neutrality, their 

inclination toward the liberal views of the United States. 

But their adoption of the liberal principles was of short du- 

ration. As soon as the war of 1793 broke out between France 

and Great Britain, all the greater powers employed their naval 

strength in the attempt to hinder neutral commerce with bel- 

ligerents. The most obnoxious of all the harsh measures 

against neutrals during this time was the British Order in 

Council of June 8, 1793, authorizing British cruisers to de- 

tain all vessels laden with corn, flour or meal, bound to any 

port in France, and to seize all vessels with their cargoes that 

should be found attempting to enter any blockaded port.**® 

This order was most detrimental to the American carrying trade 

for the United States was then almost the only neutral. This 

was the occasion on which Secretary Jefferson's instruction of 

September 7, 1793 was issued. He said in part: "When two 

nations go to war, those who choose to live in peace retain 

"Treaties and Conventions, 1871, p. 710. 

"Ibid., p. 588. 

"* Martens, Recueil, Vol. Ill, p. 503. 

« Ibid,, p. 98. 

"Wheaton, Hist. Law of Nations, p. 373. 

33 

their natural right to pursue their agriculture, manufactures, 

and other ordinary vocations; to carry the produce of their 

industry, for exchange, to all nations, belligerent or neutral, 

as usual in short, that the war among others shall 

be, for them, as if it did not exist The state of war 

then existing furnishes no legitimate right to interrupt 

either the agriculture of the United States, or the peace- 

able exchange of its produce with all nations".*^^ 

D. Limitations of Neutral Commerce 

Contraband of War. — The continental jurists generally ad- 

vocated the limitation of the list of contraband articles to the 

narrowest possible sphere, while the British jurists on the 

other hand, always endeavored to comprise a large number of 

articles in their classification of contraband merchandise. 

The United States at first accepted the British practice, rec- 

ognizing the three general classes of contraband set down by 

Grotius. But the United States government soon began to 

depart from the British practice by diminishing the number 

of articles of contraband. As early as 1777, American naval 

officers were instructed to capture only those neutral vessels 

carrying arms and other contraband goods intended for 

British warlike use. This was a great contrast to the British 

ordinance, issued in 1776, declaring "all ships, neutral or oth- 

erwise, trading or returning from trade with any of the 

American rebellious colonies" to be lawful prize.®^ By the 

French treaty of 1778, the United States limited the denomina- 

tion of contraband to great guns, bombs, &c., &c., and all other 

warlike materials, and it was definitely mentioned that all pro- 

visions which serve for nourishment of mankind, and ships 

and all other things proper either for building or repairing 

ships should not be reckoned among contraband. 

In the negotiations of the treaty of 1785 with Prussia, 

Franklin even attempted to abolish the system of confiscating 

contraband goods. He tried to substitute detention of the 

goods for confiscation of the same as a punishment for car- 

rying it. It was agreed that "to prevent all the difficulties 

and misunderstandings that usually arise respecting the mer- 

" Am. State Papers, Vol. I, p. 239. 

°* Martens, Recueil, Vol. Ill, p. 105. 

34 

chandise heretofore called contraband, such as arms, ammu- 

nitions, and military stores of every kind, no such articles 

carried in the vessels, or by the subjects or citizens of one 

of the parties to the enemies of the other, shall be deemed 

contraband so as to induce confiscation or condemnation and 

a loss of property to individuals".*^^ 

England condemned all kinds of provisions by the Orders 

in Council and this actuated the United States to accede to the 

Armed Neutrality. Jefferson contended that provisions "had 

never been included in this enumeration, and consequently 

remain articles of free commerce".^** When M. Genet's move- 

ment was at its height, Mr. Hammond complained of the sale 

of arms and military accoutrements made by American citi- 

zens to a French agent at New York.®^ In reply to these 

complaints, Jefferson stated that such sale could not be con- 

demned as a violation of neutral duties.®^ He further asserted 

that "our citizens had been free to make, vend and export arms. 

It is the constant occupation and livelihood of some of them. To 

suppress their callings, the only means of their subsistance 

perhaps, because of a war existing in foreign and distant 

countries in which we have no concern, would scarcely be 

expected. It would be hard in principle and impossible in 

practice. The law of nations, therefore, respecting those that 

are at peace, does not require from them such an international 

derangement of their occupations".®^ This celebrated diplo- 

matic statement established a precedent in the upholding of 

the principle that it is not the duty of a neutral government 

to prevent its citizens from engaging in individual enterprise 

in contraband trade. Now this principle is accepted by all 

nations as an established rule.®^ 

Blockade, — Most of the treaty stipulations up to this time 

were surprisingly silent as to the question of blockade. The 

^ Treaties and Conventions, 1871, p. 710. 

~ Am, State Papers, Vol. I, p. 239. 

•^Randolph, Correspondence of Thos. Jefferson, Mr. Hammond to 

Jefferson, May 8, 1793. 

^ Ibid., Jefferson to M. de Ternant, May 15, 1793. 

** Randolph, Correspondence of Jefferson, Vol. Ill, p. 291, Jefferson 

to Hammond, May 15, 1793. 

" The Second Peace Conference at the Hague, Convention V, Article 

8. 

35 

earliest mention of the United States in connection with this 

subject was made when it acceded to the Armed Neutrality 

and no provision concerning blockade was made in any of 

the earliest treaties. The reason seems obvious. Blockade 

had very little chance to give rise to a serious dispute, naval 

warfare not being fully developed. The most serious test in 

the history of blockade did not come until the beginning of 

the 19th century, when the United States was the only neutral 

to suffer from it and therefore the only neutral to struggle 

against it. 

The Right of Visit and Search, — During this period Eng- 

land based her right upon her force,®'^ true to the authoritative 

assertion of Lampredi that "by the law of nature, a belligerent 

has a right to detain and a neutral has a right to refuse to be 

detained, but the neutral has no power to resist, and, therefore, 

it became a question of force".®® At one time she made a dis- 

tinction between the right of search and the right of visit. 

The former right could be applied in time of war, according 

to her claim, and the latter in time of peace. No such dis- 

tinction was admitted by the continental jurists, who held 

that the two were synonymous, and that this right could be 

exercised over private merchant vessels only. This latter 

view has always been the view of the United States. 

Much irritated by the British condemnation of almost all 

ordinary commercial merchandise, the United States made 

special efforts to stipulate in all its treaties of this period, 

except that with Great Britain, that in case a neutral vessel 

detained for search produced its proper passport, no further 

inquiry should be made. In accord with these stipulations, 

search of a neutral vessel may not be admitted unless she 

failed to produce her passport or show some reasonable cause 

of suspicion. 

In regard to the treatment of noxious persons that are at 

times found in neutral vessels, the United States adopted, in 

the treaty of 1778 with France, the clause that enemy persons 

in a neutral vessel should not be taken away unless actually 

in the service of the enemy. This provision was inserted in 

" Dana, Wheaton, p. 593. 

*• Lampredi's Del Commercio dei Popoli Neutrali in tempo di Guerra^ 

was published in 1788. 

36 

many treaties, but never in a treaty between England and the 

United States. 

The exemption from visit and search of neutral merchant- 

men under convoy was stipulated in numerous treaties during 

this period, but the practice of nations was not consistent. 

England leaned more and more toward a complete denial of 

the right. Most other nations, including the United States, 

entered into treaties providing that the word of the comman- 

der of the convoy should be deemed sufficient to protect from 

visit and search.®*^ 

"Treaties agreeing upon convoy are: — ^that of 1782 between the 

United States and the United Provinces, Martens, Recueil, Vol. Ill, 

p. 437; that of 1783 between the United States and Sw-eden, Vol. Ill, p. 

574; that of 1785 between the United States and Prussia, Vol. IV, 

p. 43; that of 1782 between Denmark and Russia, Vol. Ill, p. 475; that 

of 1787 between Denmark and France, Vol. IV, p. 212; that of 1787 

between the Two Sicilies and Russia, Vol. IV, p. 238; and that of 1787 

between Portugal and Russia, Vol. IV, p. 328. 

37 

CHAPTER 3 

History of Neutrality from 1793 to 1818 

I. European Practice of Neutrality 

This period forms the darkest chapter in the history of the 

laws of neutrality. In the desperate struggle between the two 

rival powers, France and England, each striving to cripple 

the naval strength of the other, all neutral interests were 

crushed as between two millstones. Although France had to 

acquiesce in the American interpretation of the treaty of 

alliance, she was not at all satisfied with the attitude main- 

tained by the United States Government, and the French party 

in America still vociferously claimed that the French aid 

given to Americans in time of their need must now be re- 

turned. The British, on the other hand, violated American 

neutral rights to such an extent that the war of 1812 was the 

final result. After the downfall of Napoleon, the formation 

of the Holy alliance led to a violation of the principle of 

national sovereignty, and a deliberate infringement of inter- 

national law through its assertion of the right to intervene 

and crush out revolutionary governments. 

A. Disregard of Neutral Commerce 

When revolutionary France stood against the whole of 

Europe, Great Britain, with the support of Russia and Prus- 

sia behind her, enforced increasingly severe prohibitions 

against all neutral trade with France by successive Orders in 

Council. The extention of the Rule of the War of 1756 by 

the instructions of Nov. 6, 1793, was one of the most severe 

measures. Naval officers were instructed to "stop and detain 

all ships laden with goods, the produce of any colony be- 

longing to France, or carrying provisions or other supplies 

for the use of such a colony "^ Under this rule British 

cruisers were authorized to seize all vessels of whatever de- 

* Martens, Recueil, Vol. V, p. 600. 

38 

scription, ladened with the produce of any French colony, or 

with any provisions or munitions of war designed for the use 

of the enemy or the enemy's colonies. This aroused great 

popular excitement throughout the United States. As a conse- 

quence, actual war measures were adopted by the House of 

Representatives. Washington said in his correspondence to 

Tobias Lear that "Many measures have been moved in Con- 

gress, in consequence of the aforementioned Orders of the Brit- 

ish Cabinet . . one for fortifying our principal seaports, 

which is now in vigorous execution, and for raising an addi- 

tional corps of eight hundred artillerymen "^ In view 

of the American protest, this order was somewhat 

modified on January 8, 1794. The modification was made 

with these words ; "we are pleased to revoke the said instruc- 

tion; and in lieu thereof, we have thought fit to issue these 

our instructions ", and that part of the Order of 

June 8, 1793, which condemned all vessels laden with corn, 

flour or meal, bound for any French port was also recalled on 

August 18, 1794. This Order declares that "In order that 

such com, flour or meal might be purchased the mas- 

ters of such ships should be permitted to dispose of 

their cargoes We are pleased to revoke the 

said article until our further order therein "^ 

France, on her part, started the crusade against neutral 

commerce as early as May 9, 1793, by a Decree of the 

National Convention, authorizing her ships of war and priva- 

teers to seize merchant vessels laden with provisions bound to 

an enemy port, or with merchandise belonging to an enemy, 

on the ostensible ground of the scarcity of provisions in 

France. This Decree says that "Les batiments de guerre et 

corsaires frangaise peuvent arreter et amener dans les ports 

de la Republique les navires neutres qui se trouveront charges 

en tout ou en partie, soit de comestibles appartenans a des 

neutres et destines pour des ports ennemies, soit de marchan- 

dises appartenans aux enemis "* On January 18, 1789, 

a law was passed condemning every vessel, neutral or bellige- 

rent, ladened in whole or in part with British goods. "En conse- 

' Jared Sparks, Life and Writings of George Washington, Vol. X, pp. 

409-410. 

* Martens, Recueil, Vol. V, p. 604. 

*Ibid,, p. 382. 

39 

quence tout batiment charge en tout ou en partie de marchan- 

dises anglaises, est declare de bonne prise, quelque soit le pro- 

prietaire des dites marchandises .... 'V and on the 29th 

of the following October, an Arrete of the Executive 

Directory condemned to death as a pirate any neutral 

subject who should accept a commission from, or serve on 

board the vessel of, the enemies of France.* This retaliation 

and counter-retaliation continued during the days of the Na- 

poleonic wars. Though the peace of Amiens terminated tem- 

porarily the actual hostilities between the rival powers, the 

war against each other's commerce witnessed no definite end. 

The undue claims of the belligerent British were too in- 

tolerable even for the Europe of those days to stand without 

open resistance. As the First League of Armed Neutrality 

was the result of British aggressions upon neutral commerce, 

the formation of the Second League was the result of the 

British denial of the immunity of neutral merchantmen under 

convoy. A British frigate refused to allow to a Danish ship 

of war, convoying a fleet of merchantmen near Gibraltar, the 

immunity from the exercise of the right of visit and search in 

December, 1799. In consequence a skirmish took place. Soon 

after this the "Freya", another Danish frigate, met with simi- 

lar treatment resulting in a loss of life on both sides. The 

Danish demand for satisfaction was rejected by the British 

Government. While this controversy was growing serious, the 

Emperor Paul of Russia invited Sweden, Denmark and Prus- 

sia to renew the Armed Neutrality of 1780. Irritated by the 

continual condemnation of neutral trade and especially by the 

conflict arising out of the Danish incident, the northern powers 

revived this League of Neutrality by three separate treaties. 

They declared these principles ( i ) that every vessel may navi- 

gate freely from port to port, and on the coasts of nations at 

war, (2) that the property belonging to the subjects of bel- 

ligerent powers shall be free in neutral vessels, excepting con- 

traband of war, (3) that a blockade must be instituted with 

vessels sufficiently near so that there is an evident danger in 

attempting to enter, and that if any vessel should still en- 

deavor to enter by means of force or fraud, after being noti- 

fied by the commander of the blockading force, she should be 

' Martens, Recueil, Vol. V, p. 399. 

• Ihid. 

40 

captured, (4) that neutral vessels shall be detained for just 

cause and evident fact only, and (5) that the declaration of 

a commander of a convoy shall be deemed sufficient to pre- 

vent any search on board the convoying vessels or those 

under convoy.^ In answer to this Northern Confederation, the 

British Government issued another Order in Council on Jan- 

uary 14, 1801, laying an embargo on all vessels of Russia, 

Denmark and Sweden. The Second League of Armed Neu- 

trality was also of short duration, like that of 1780. At the 

outbreak of the Napoleonic wars, the members of this League, 

in their struggle against Napoleon, laid aside all the principles 

they had so solemnly declared. 

The darkest days in the history of international law com- 

menced in 1804 when Napoleon issued an order closing the 

Neapolitan ports to English trade. In the same year the 

British, on their side, declared the French ports from Ostend 

to the Seine to be in a state of blockade. This blockade was 

extended in 1806 from the Elbe to Brest. Napoleon answered 

this by the Berlin Decree of November 21, 1806, which de- 

clared the British Isles in a state of blockade and which cut 

off all trade between Great Britain and the rest of the world.^ 

Since Napoleon wrote his famous letter to Bemadotte saying 

"je ne puis lutter.avec TAngleterre, je ne puis la forcer a paix 

qu'avec le systeme continental",® this blockade has become 

known as the "continental system". The British response 

was the Orders of January 7, and of November 11, 1897. By 

the former one it was declared that "it is hereby ordered that 

no vessel shall be permitted to trade from one port to another, 

both of which ports shall belong to, or be in the possession of, 

France or her allies, or shall be so far under their control 

as that British vessels may not freely trade thereat".^*^ By 

that of November nth, all the ports or places of 

France or her allies were declared to be in a state of 

blockade so that all trade in the produce or manufactures 

^ Treaty between Russia and Sweden, Martens, Recueil, 2nd Ed., Vol. 

VII, p. 172; that between Russia and I>enmark, Ihid., p. 181; that be- 

tween Russia and Prussia, Ihid., p. 188. 

■ Martens, Nouveau Recueil, Vol. I, p. 439. 

"Napoleon to the Prince Royal of Sweden, March 8, 181 1, Martens, 

Causes CiUbres, Vol. V, p. 145. 

** Martens, Nouveau Recueil, Vol. I, p. 445. 

41 

pf those countries or colonies, from which the British flag wasi 

excluded, was declared unlawful, and that any vessel trading 

from or to those countries or colonies should be confiscated, 

together with all goods on board, unless they should first stop 

at an English port and pay duty.^^ Napoleon replied with the 

Milan Decree of December 17, 1807, declared that all vessels 

of any nation, laden with any kind of cargo, bound to or from 

England or her colonies, and all ships that had paid any tax to 

the English government or had submitted to search by an 

English ship, should be lawful prize. This system was prop- 

erly called the "paper blockade", and could hardly be rec- 

ognized as a legal blockade. While all these decrees and 

counter-decrees were proclaimed to be of blockades, they were 

an open violation rather than a practice of the law, and there- 

fore, this brief account of the decrees is given tmder this 

topic, the 'Disregard of Neutral Commerce', instead of under 

that of 'Blockade'. 

II. American Practice of Neutrality 

A. Practice in General 

In the way of retaliation for the British enforcement of the 

Rule of the War of 1756, Congress adopted on March 20, 

1794, the first of the long series of Embargo Acts, and also 

passed on April 7th of the same year a resolution of sus- 

pension of intercourse with Great Britain. The British Gov- 

ernment modified its offensive Orders to such an extent that 

American trade in the West Indies was carefully spared, ex- 

cept in respect to French products and French property car- 

ried between French ports.^^ i. The Jay Treaty. Through the 

unceasing efforts of President Washington, an amicable set- 

tlement of the controversy was partially reached by the con- 

clusion of the Jay treaty in 1794. Though concluded on No- 

vember 19, 1794, it was not ratified until June 24th of the 

following year, on account of long and heated debate in Con- 

gress.^^ In the negotiations most of the important points were 

agreed upon, but on the questions of impressment and neutral 

trade Great Britain would not yield. No redress for the im- 

pressment of seamen, nor any promise for the abolition of the 

practice of impressment, could Jay get into the treaty. By 

" Martens, Nouveau Recueil, Vol. I, p. 446. 

" Martens, Recueil, 2nd Ed., Vol. V, p. 604. 

"Moore, Digest, Vol. V, pp. 699-704. 

42 

Article 21, American citizens receiving commissions from 

France were declared pirates, and also by Article 12 it was 

further stipulated that American vessels might freely carry 

cargoes from any British port, "Provided always that the 

said American vessels do carry and land their cargoes in the 

United States only," The payment of a compensation by 

the British Government to American citizens for the illegal 

captures made by the British was the most favorable clause in 

the treaty.^* 

In the main, the partial immunity secured by the Jay treaty 

was, however, so profitable to the Americans that they were 

enabled to carry on a most thriving commerce with the West 

Indies. From the conclusion of this treaty down to the com- 

mencement of the Napoleonic wars, American carriers con- 

tinued to prosper and this aroused the jealousy of the British 

ship-owners, vvho urged the severe enforcement of the Rule 

of the War of 1756. It was in 1805 that Great Britain may 

be said practically to have commenced hostilities against the 

United States. Before the expiration of the Jay treaty in 

1807, "^y its own limitation of twelve years, Monroe and 

Pinkney had signed a treaty with Great Britain which Presi- 

dent Jefferson refused to lay before the Senate because it 

contained a number of stipulations dishonorable to the United 

States. The most distasteful of these was the stipulation in 

regard to the Rule of the War of 1756, which Great Britain 

agreed not to enforce as to the goods upon which a two per 

cent ad valorem duty had been paid. Another thing almost 

equally undesirable to America was the right of visit and 

search which Great Britain obstinately refused to abandon.^** 

Thus ended the negotiations between the two countries, and 

the impressment of American seamen and the spoliation of 

American merchandise went on until the war of 1812. 

2. Relations with the French Republic 

The Jay treaty openly contravened the French treaty of 

1778 in regard to French goods in American vessels. While 

the former stipulated the protection of enemy goods in neu- 

tral vessels, the latter agreed by Article 17 that enemy goods 

found on neutral vessels should be made prize. French com- 

" Treaties and Conventions, 1781, pp. 318-332. 

"Carl Schurz, Life of Henry Clay, Vol. I, pp. 70-71. 

43 

plaints of this stipulation were not altogether unreasonable. 

Their resentment was later manifested by the extension of the 

Berlin Decree to American trade. ^* Washington's unceasing 

efforts to restore peaceful relations with France were not ap- 

preciated by the Directory which refused to receive Mr. Pinck- 

ney as a new American representative. After a sharp debate 

Congress approved the President's view and decided to make 

another effort. A special mission of three envoys was despatch- 

ed which arrived at Paris on October 4, 1797. A few days after 

their arrival the envoys were approached unofficially by three 

persons, known in their correspondence as X, Y and Z, who 

informed them that, among other things, some sort of bribe, 

under the term of 'douceur', should be furnished by the United 

States before its minister would be received by the French 

Directory. Once a lady diplomat approached and informed 

them that M. Talleyrand "has assured me that a loan must 

be made".^^ This statement was confirmed by a written propo- 

sition which Talleyrand showed to the American envoys in an 

interview, and which he burned, containing the words, "France 

has been serviceable to the United States and they (Ameri- 

cans) now wish to be serviceable to France".^® To these de- 

mands the American diplomats made no conciliatory reply 

and the negotiations abruptly came to an end. 

Meanwhile the high-handed aggression of British war ships 

upon the American seamen reached its climax in the famous 

incidents of the "Leopard" and the "Chesapeake" in 1807.^® In 

the autumn of the same year the Embargo bill was adopted at 

an extra session of Congress, forbidding the departure of any 

American vessel bound to any foreign country. The Com- 

mercial Non-Intercourse Act was passed by Congress in Feb- 

ruary, 1809, against France and England, looking to the with- 

drawal of the French Decrees and the British Orders. By the 

attempted negotiation of the Erskine treaty and by the passage 

of the Non-Intercourse Act on May ist, the United States 

repeatedly manifested the American desire for both belliger- 

ents to adopt some reciprocal measures, but all proved to be 

^*Am. State Papers, Vol. II, pp. 178, 189-190. 

" John Bach McMaster, A History of the People of the United States, 

Vol. II, p. 374. 

" McMaster, History, Vol. II, p. 373^ n. 

'•Richardson, Papers of the Presidents, Vol. I, p. 432. 

44 

of no avail, and on all sorts of pretexts American ships were 

mercilessly seized and condemned by the French and English 

frigates wherever they were found. During this struggle the 

number of American ships captured by the British was over 

nine hundred, and by the French more than five hundred and 

fifty, and American citizens who were impressed by the British 

were estimated to exceed six thousand.^® It was not until the 

assassination of Premier Spencer Perceval, who was a strong 

advocate of the harsh measure, that the British Orders were 

repealed on June 23rd. The news of the repeal of the British 

Orders reached America too late to prevent war, for on June 18, 

1812, President Madison signed the Declaration of War against 

Great Britain. 

Generally speaking, the English Orders were the main 

causes of the war. On the part of England, the most ob- 

noxious measures were withdrawn only five days after the 

commencement of hostilities. Yet the right of the impress- 

ment of seamen was too much for England to yield and con- 

sequently the war kept on. Meanwhile, on the side of France, 

an interesting little episode occurred. Napoleon, in his usual 

way of political play, caused a manufactured Decree to be 

shown to the American minister. This Decree was dated 

April 28, 1 810. By this scheme he pretended that he had ex- 

empted Americans from the Berlin and Milan Decrees long 

before the declaration of war in 1812. The fact is that 

Napoleon was thus attempting to win American friendship in 

his contest with England.^^ 

In the negotiations of the treaty of Ghent, in 1814, the 

American negotiators claimed the protection of neutral rights 

as a basis of the peace negotiations, but the British diplomats 

would not consider anything concerning the principle of neu- 

tral rights, the rules of blockade and the right of search and 

impressment. As a measure of compromise on both sides, 

the peace was signed December 24, 1814, leaving the principal 

questions unsettled. Nevertheless, the results of this war were 

decisive. The practice of the Rule of the War of 1756 was 

never revived by Great Britain, the enforcement of the Orders 

in Council were ended once for all, and the impressment of sea- 

men never again became a question. Lord Aberdeen said in his 

* Schurz, Clay, Vol. I, p. 76. 

" Ibid., p. 87. 

45 

correspondence with Mr. Webster on August 9, 1842, "I have 

much reason to believe that a satisfactory arrangement re- 

specting it (impressment) may be made so as to put at rest all 

apprehension and anxiety".^^ And besides, the American Re- 

public stood out in the eyes of the world as a neutral power, 

whose sympathy and friendship would have influence upon the 

international relations of Europe. 

3. Spanish-American Movements 

The question of the South American colonies soon occupied 

the attention of the younger American statesmen. From 

1808, when Napoleon set his brother on the Spanish throne, 

to 181 5, the date of the downfall of Napoleon, the Spanish 

American colonies in Central and South America and Mexico 

had enjoyed freedom of commerce with other nations. In the 

course of the struggle they rebelled against the mother country 

and proclaimed their independence. The Spanish Government 

was too weak to compel the revolted colonies to submission. 

Americans as well as Englishmen were in sympathy with the 

South American republics, and as a result the United States 

was placed in a difficult position in order to maintain its neu- 

trality. 

In 1818, Mr. Clay proposed in Congress to send a mission 

to the South American provinces to express the sympathy of 

the United States. According to his view the insurgent states 

were ipso facto independent governments and that the United 

States was bound by just neutrality to recognize formally 

their independence by an exchange of ministers. He argued 

that so long as the United States meant to be impartially neu- 

tral, "if the royal belligerent is represented and heard at our 

government, the Republican belligerent ought also to be 

heard".*' This proposition was rejected and in fear of the 

mediation of the allied powers in the affairs of South America, 

President Monroe expressed the hope in his Annual Message' 

that European powers would not intervene by force, and would 

follow the course of neutrality adopted by the United States.** 

Jackson's Seminole war is often criticised as a violation of 

"^ Wharton, Digest, Vol. Ill, p. 228. 

" Schurz, Clay, Vol. I, p. 149. 

*• Richardson, Papers of the Presidents, Vol. II, p. 44. 

46 

Spanish neutral territory. But his Florida action was justi- 

fied on the principle of self defense. It was alleged that the 

Spanish authorities in Florida were agitating war among the 

Seminoles against the Americans by furnishing munitions of 

war and other supplies to carry it on and in other acts equally 

hostile. The governor of Pensacola was called upon to sup- 

press the hostilities and punish the marauders but he refused 

to do so. Jackson was consequently authorized to enter Florida 

in pursuit of the Seminoles on the ground of necessity. Jack- 

son overstepped the authority given by the President when he 

occupied the fort at St. Mark's. Therefore an order was is- 

sued by the government to deliver the post unconditionally to 

any person duly authorized to receive it. There are evi- 

dences to prove the truth of Jackson's statement that "Our 

enemies, internal or external, will use it (the fort of St. 

Mark's) to the disadvantage of our government. If our troops 

enter the territory of Spain in pursuit of our Indian enemy, all 

opposition that they meet with must be put down or we will 

be involved in danger and disgrace".^^ Jackson further 

argued that "To prevent the recurrence of so gross 

a violation of neutrality, and to exclude our savage enemies 

from so strong a hold as Saint Mark's, I deem it expedient 

to garrison that fortress with American troops until the close 

of the present war. This measure is justifiable on the im- 

mutable principles of self-defense, and can not but be satis- 

factory, under existing circumstances, to His Catholic Majesty 

the King of Spain. Under existing treaties between the two 

governments, the King of Spain is bound to preserve in peace 

with the citizens of the United States, not only his own sub- 

jects, but all Indian tribes residing within his territory .... "^^ 

All points being considered, the Spanish colonial authorities 

were largely to blame. The Spanish Government was, how- 

ever, constantly complaining, and the United States Govern- 

ment determined to observe its neutrality in a most strict sense. 

This intensified the popular feeling against Spain in favor of 

her insurgent colonies and the government found it necessary 

to pass the Neutrality Act of March 3, 1818. 

"Wharton, Digest, Vol. I, pp. 225-226, Jackson to Monroe, January 

6, 1818. 

^Ibid., p. 226. 

47 

B. The Neutrality Acts of 1794 and 18 18. 

The most important of all the actions done for the advance- 

ment of neutrality during the foregoing period was the issuing 

of Washington's Neutrality Proclamation. This proclamation 

constitutes, as noticed above, a new epoch in the history of the 

laws of neutrality. Nevertheless this proclamation alone was 

not sufficient to enforce the rules set forth by Washington's 

Cabinet. During this period, under the stress of warlike sen- 

timent within and agitating movements without, the govern- 

ment deemed it necessary to maintain a strict neutrality. The 

proclamation was moulded into the legislative acts of Congress, 

and these acts were then strictly enforced by the decisions of 

the courts. 

President Washington, realizing the weakness of the govern- 

ment in enforcing the rules set forth in his proclamation, urged 

upon Congress at the opening of the session in December 1793, 

the adoption of some effectual measures for the better preser- 

vation of neutrality. He delivered to Congress his proclama- 

tion, dispatches and circulars, with all the facts attached to 

them. Congress, in accordance with his policy, passed on the 

5th of June, 1794, the celebrated legislation henceforth known 

as the First Foreign Enlistment Act, or as sometimes called, 

the Neutrality Act of 1794. 

The first Foreign Enlistment Act provided for the punish- 

ment of, 

(a) Any person whatever who should, within the juris- 

diction of the United States, (i) personally enlist or (2) hire 

another to enlist or to go beyond the jurisdiction of the United 

States with intent to be enlisted, in the service of any foreign 

state as a soldier, marine or seaman : 

(b) Any person whatever who should, within the juris- 

diction of the United States, fit out and arm, or attempt to fit 

out and arm, or to procure to be fitted out and armed, or should 

knowingly be concerned in the furnishing, fitting out or arm- 

ing, of any vessel with intent that such vessel should be em- 

ployed in the service of any foreign state to cruise or commit 

any hostilities against any state with which the United States 

should be at peace : 

(c) Any person whatever who should, within the jurisdic- 

48 

tion of the United States, issue a commission to any such ves- 

sel with intent that she should be so employed : 

(d) Any person whatever who should, within the juris- 

diction of the United States, increase or augment, or should 

be knowingly concerned in increasing or augmenting the force 

of any armed vessel in the service of any foreign power at 

war with another state, with which the United States is at 

peace: and, 

(e) Any person whatever who should, within the jurisdic- 

tion of the United States, set on foot or prepare the means 

for any military expedition or enterprise against the territory 

or dominion of any foreign prince or state with which the 

United States is at peace. 

It is true that the United States government undertook by 

these regulations, obligations by no means easy to fulfill. An 

enormous force of police was required to enforce the rules they 

set forth. The militia of individual states was not strong 

enough to put down the violent resistance of some of those 

who disregarded the authority of the government. Sometimes 

the militiamen had to march "between seventy and eighty miles 

to seize a vessel under preparation as a French privateer."-^ 

Under the first Foreign Enlistment Act the first prosecution 

was the case of John Etienne Guinet and John Baptiste le 

Maitre, brought before the Circuit Court at Philadelphia on 

May II, 1795, on a charge of being knowingly concerned in 

fitting out and arming the vessel, "Les Jumeaux", within the 

jurisdiction of the United States, for the service of the French 

Republic against the King of Great Britain with whom the 

United States was. at peace. "Les Jumeaux", originally a 

British cruiser, passed into French ownership. She entered 

the harbor of Philadelphia in December 1794, as a merchant 

ship with only four of her twenty port holes open, and carry- 

ing a cargo of sugar and coffee. Baptiste, its first French 

owner, soon opened all of her port holes and started in repair- 

ing. But she left Philadelphia in ballast and went to Wilming- 

ton where she received her armament and other equipment. 

The decision of the jury was a verdict of guilty on the ground 

that "the converting a slightly armed merchant vessel into a 

ship of war was as much a fitting out and arming as if the 

vessel had never been originally armed at all", and Guinet was 

''Sparks, Washington, Vol. II, p. 42. 

49 

<«entenced to one year impriscminent and a fine of $500.00. 

^'Les Jumeaux^' then proceeded from Delaware to San 

I>omingo, and was sold to the French govemment on Fd>ru- 

ary 7, 1795. Commissioned as a French ship of war under the 

name of the ''Cassius'', with an American, Samuel Davis, on 

board as its lieutenant, she soon started out cruising against 

British commerce. The British brig, "William Lindsay", was 

her victim, and was condemned as lawful prize in a French 

court in French jurisdiction. The principal question in this 

case was, though the "Cassius" was originally equipped and 

fitted out in the jurisdiction of the United States, and also 

commissi(Mied under an American citizen, whether the United 

States had or had not a right to demand a compensation 

against her, so long as the capture was made on the high seas 

and carried into a French port under the command of the 

captor. The capture, therefore, did not compromise the neu- 

trality of the United States and the govemment refused to 

interfere with the judicial proceedings in the case. 

The revolutionary uprising in South America broke out in 

1 810. More or less inspired by the political principles of the 

United States, they declared themselves Republics, indepen- 

dent of their mother countries. The fathers of the American 

Revolution naturally had a sympathetic feeling toward those 

colonists struggling for independence. Furthermore, the rela- 

tions between the two countries, Spain and the United States, 

had not been a very cordial one, either politically or religiously. 

All the efforts of the American statesmen to approach the 

government at Madrid with a friendly disposition had proved 

to be of no avail. Apart from these reasons, the American 

people as a whole desired to see their sister-continent free from 

the oppressions and despotism of the old world. 

The Portuguese minister admitted, however, in his com- 

munication to Secretary Monroe on December 20, 1816, that 

the difficulty of enforcing the rules of neutrality lay not in any 

want of disposition on the part of the govemment to punish 

the offenders, but in the lack of force behind the Act of 1794.*' 

He solicited the American government to make some "provi- 

sions that will prevent such attempts for the future", referring 

to the fitting out of privateers at Baltimore for the insurgents 

of Buenos Ayres against Portugal. President Madison sent a 

"Dana, JVheaton, p. 540, M. J. Correa de Serra to Monroe. 

50 

special message to Congress on the 26th of December 1816, 

urging an enlargement of preventive powers so that the gov- 

ernment could successfully prevent further "violations of the 

obligations of the United States as a nation at peace toward 

belligerent parties and other unlawful acts on the high seas 

by armed vessels equipped within the waters of the United 

States".2» 

In April 1817, the Spanish consul filed a libel in the District 

Court of Virginia against a certain part of the cargoes of the 

Spanish ships, the "Santissima Trinidad" and the "St. Ander." 

The said part of the cargoes was alleged to have been piratic- 

ally taken out of those vessels on the high seas by two armed 

vessels, the "Independencia del Sud" and the "Altravida". 

which were manned and commanded by citizens of the United 

Provinces of Rio de le Plata. The Spanish at Norfolk insisted 

upon the restitution of the goods in behalf of the original Span- 

ish owners. The three principal reasons presented by the 

Spanish consul were : 

(i) That the commanders of the "Independencia" and the 

"Altravida" were citizens of the United States; (2) that the 

said capturing vessels were equipped, fitted out and armed in 

the United States; and (3) that their force and armament had 

been illegally augmented within the territory of the United 

States. 

The District Court decreed restitution to the original own- 

ers. When the case was appealed to the Circuit Court, that 

judgment was affirmed, and Justice Story of the Supreme 

Court also affirmed the decision of the Circuit Court. In the 

decision of the Court, he held that (i) the "Independencia" 

originally a privateer, was sold to some men of Baltimore, 

who dispatched her on a voyage, ostensibly to the Northwest 

Coast, but in reality to Buenos Ayres, and there she was sold 

to the government of Buenos Ayres. She was commissioned 

in that port under Captain Chaytor, a Baltimorean, as a 

national public ship. Though a bill of sale of the "Indepen- 

dencia" was not produced, it was held that as long as there 

was no "doubt . . . expressed as to the genuineness of Captain 

Chaytor's commission", she must judicially be held a public 

ship of that country, and not the private property of any citi- 

* Richardson, Papers of the Presidents, Vol. I, p. 582. 

51 

zens of the United States.*® (2) As to the question of the origi- 

nal illegal armament, the Court held that "it is apparent, that 

though equipped as a vessel of war, she was sent to Buenos 

Ayres on a commercial adventure, contraband, indeed, but in 

no shape violating our laws on our national neutrality 

But there is nothing in our laws, or in the law of nations, that 

forbids our citizens from sending armed vessels, as well as 

munitions of war, to foreign ports for sale. . ."•^ (3) In re- 

gard to the third question. Justice Story said, "The Court 

is, therefore, driven to the conclusion, that there was 

an illegal augmentation of the force of the *Inde- 

pendencia' in our ports, by a substantial increase of her crew 

", and it was further held that such an illegal augmenta- 

tion was a violation of the law of nations, as well as the mu- 

nicipal law of the United States, and a violation of our neu- 

trality.»2 

On March 3, 181 7, Congress passed "An Act more effect- 

ually to preserve the neutral relations of the United States." 

By this statute, any armed vessel that went out of the jurisdic- 

tion of the United States was required to give bond with suf- 

ficient securities in double the amount of the value of the 

ship and the cargo that the vessel should not be employed in 

aiding or augmenting any warlike measure against any prince 

or state, "or of any colony, district, or people. . ." with which 

the United States was at peace.** 

The Spanish government was still complaining about the 

fitting out of privateers in American waters to cruise against 

Spanish commerce. Accompanied with the Spanish complaints 

was a list of thirty such privateers. President Madison called 

the attention of Congress to the establishment of military bases 

in the Amelia Island and at Galveston, which must be checked 

at once by the government. Consequently the statute of 1817, 

which was also temporary, for the period of two years, was 

repealed and a new act of Congress was passed on April 20, 

1818. This is the permanent legislation, now known as the 

Neutrality Act of 1818. This Act was practically the re-enact- 

** U. S. Supreme Court Reports, 7 Wheaton 283, 335. 

~ Ihid., 283, 340. 

" Ihid., 283, 344. 

*^ Statutes at Large, Vol. Ill, p. 370, the words, "of any colony, dis- 

trict, or people", were added to the act of 1794. 

52 

ment of that of 1794, with the exception of some modifications. 

The important sections constituting this act are: 

(i) Every citizen of the United States, who within the 

jurisdiction thereof, accepts or exercises a commission to serve 

a foreign prince, state, colony, district, or people shall be 

deemed guilty of high misdemeanor; 

(2) Every person who enlists or enters himself, or 

hires or obtains another person to go beyond the jurisdiction 

with intent to be enlisted shall be deemed guilty 

(3) Every person who fits out and arms, or attempts 

to fit out and arm, or shall knowingly be concerned in the f ur- 

ishing, fitting out, or arming, of any vessel shall be deecned 

guilty. . . . 

(5) Every person who increases or augments, or pro- 

cures to be increased or augmented, or shall knowingly be con- 

cerned in increasing or augmenting, the force of any ship of 

war, cruiser, or other armed vessel shall be deemed guilty. 

(6) Every person who begins or sets on foot, or pro- 

vides or prepares the means for, any military expedition or 

enterprise, to be carried on from thence against the territory 

or dominions of any foreign prince with which the United 

States are at peace, shall be deemed guilty 

(7) The district courts shall take cognizance of all com- 

plaints, by whomsoever instituted, in cases of captures made 

within the waters of the United States 

(8) The President is authorized to employ land or naval 

forces, or militia, for the purpose of carrying the provisions 

of this act into effect 

(9) The same forces are to be employed to compel the 

departure of such vessels as would contravene the law of 

nations, or the treaties of the United States with foreign pow- 

ers. 

(10) A bond, double the amount of the value of the vessel 

and cargo, is required of vessels about to depart from the ports 

of the United States, owned either wholly or partially by the 

citizens of the United States, promising that such vessels shall 

not be employed contrary to the prohibitions of this act. 

(11) The revenue officers are to detain any vessel mani- 

festly built or equipped for warlike purposes. 

This was the basis of the British Foreign Enlistment Act of 

53 

i8i9, and of similar provisions subsequently adopted in the 

penal codes of various European states. 

III. Freedom of Neutral Commerce 

During this period, the United States government endeavored 

to pursue its liberal policy in the treatment of neutral com- 

merce, and succeeded in inserting the free ship, free goods 

principle in several treaties with other powers. In the treaty 

of 1795 with Spain, it was agreed that free ship will make free 

goods, "no distinction being made who are the proprietors of 

the merchandise laden theron".^* In the treaties of 1796 with 

Tripoli,**^ of 1797 with Tunis^® and also that of 1797 with 

Morocco,*^ the United States stipulated the new rule of free 

ship, free goods, and furthermore, that free goods in enemy 

ship shall also be free. 

In the meantime the American statesmen began to realize 

the difficulty of establishing the liberal rule and at times alto- 

gether abandoned it. By the Jay treaty it was agreed that 

enemy property in a free ship should be condemned as law- 

ful prize. However, the original draft presented by the 

American diplomats in the negotiations for the Jay treaty dis- 

closes the fact that the United States government had pro- 

posed to insert in the treaty the free ship, free goods maxim.^^ 

But the English Government would not yield to them and the 

American government considered it more prudent to ratify the 

treaty without it "if the alternative was war with Great Brit- 

ain."^® In 1796, when the term of the Prussian treaty of 1785 

had expired, John Quincy Adams tried to renew it, inserting 

again the free ship, free goods clause without the opposing 

maxim, enemy ship, enemy goods. Up to this time, 1796, the 

free ship, free goods principle was adopted practically in all 

the American treaties except those with Great Britain. 

This was done either with or without the enemy ship, 

enemy goods maxim. The constant efforts made by the United 

States to establish this principle as universal usage proved 

•* Art. XV, Treaties and Conventions, 1871, p. 780. 

» Ibid., p. 837. 

""Ibid., p. 846. 

"Stat, at Large, Vol. VIII, p. loi. 

"Wharton, Digest, Vol. II, p. 162. 

** Moore, Digest, Vol. V, pp. 702-704. 

54 

unavailing. Wheaton says, "the United States were the losers 

in every direction of that principle", because other powers 

that adopted this principle in their treaties with the United 

States would insist upon its observation when injurious to the 

latter, but disregarded it when beneficial to them.*® 

Consequently in 1798, the American plenipotentiary, Adams, 

was instructed to propose to the Prussian cabinet the abandon- 

ment of the free ship, free goods article in the treaty then be- 

ing negotiated.*^ Adams at first objected to this omission, 

stating in his correspondence to the home government, that all 

maritime powers not having large navies were anxious to see 

freedom of trade established against Great Britain and resented 

any act that would support British pretentions.*^ Meanwhile 

he admitted the undesirability of entering into such treaty ob- 

ligations, because in case of war between one of the two con- 

tracting parties and a third power, these obligations would 

work only against the Americans. Under these circumstances, 

he suggested, in accordance with instructions from the home 

government, that the agreement should be conditional so that in 

such cases, the neutral bottom should cover enemy goods, 

"provided the enemy of the warring power admitted the same 

principle".** Thus he conditioned the exercise of this rule on 

the principle of reciprocity. Wheaton remarks that "this would 

at once discover the American inclination and attachment to 

the liberal rule, and yet not make them the victims of their 

adherence to it, while violated by their adversaries".** 

After a long series of communications, the treaty was final- 

ly concluded on the nth of July, 1799. It abandoned the lib- 

eral principle. The reason for its abandonment is made clear 

in the following statement taken from the twelfth Article of 

the treaty : 

Experience having proved that the principle according 

to which free ships make free goods, has not been sufficiently 

respected during the last two wars the two contracting 

parties propose, after the return of a general peace, to agree, 

either separately between themselves or jointly with other 

powers to concert with the great maritime Powers of 

Dana, Wheaton, p. 588. 

Am. State Papers, Vol. IV, pp. 38-47. 

Wharton, Digest, Vol. Ill, p. 225, letter of July 17, 1797. 

Am. State Papers, Vol. I, p. 251. 

Dana, Wheat oH, p. 593. 

55 

it 

It 

ti 

it 

if 

it 

40 

41 

''Europe such arrangements and such permanent principles as 

"may serve to consolidate the liberty and safety of neutral 

'navigation and commerce in future wars. And if either 

"of the contracting parties should be engaged in a war to which 

"the other remains neutral, the ships of war and privateers of 

"the belligerent Power shall conduct themselves towards the 

"merchant vessels of the neutral Power as favorably as the 

"course of the war then existing may permit "** 

In the treaty of 1800 with France, the United States adopted 

both the principle of free ship, free goods and that of enemy 

ship, enemy goods.*" In the negotiations for this treaty, the 

American minister stated that "sundry nations have in many 

instances introduced by their special treaties another principle 

between them, that enemy bottoms shall make enemy goods, 

and friendly bottoms, friendly goods ; but this is altogether the 

effect of particular treaties, controlling in special cases the 

general principle of the law of nations, and therefore, taking 

effect between such nations only as have so agreed to control 

it." This is a re-assertion of what Jefferson had said in his 

reply to the French complaints concerning French goods taken 

out of American ships by the British without resistance on the 

part of the United States. During the War of 1812, the Amer- 

ican prize courts uniformly enforced "the acknowledged rule of 

international law", subjecting enemy goods in free ships to 

confiscation, excepting in regard to the property belonging to 

such powers as practiced the free ship, free goods principle in 

reciprocity with the United States.*^ The same restriction 

conditioned on the principle of reciprocity was incorporated 

in treaties during the latter part of this period and even later.*® 

IV. Limitations of Neutral Commerce 

A. Contraband of War. 

(i) Contraband in General, — ^The tendency of the United 

States government has always been to restrict the list of con- 

traband, while that of Great Britain has been to expand it. 

** Treaties and Conventions, 187 1, pp. 718-719. 

**Ibid., p. 270. 

"Dana, Wheaton, p. 603. 

*" U. S. Supreme Court Reports, 2 Wheaton Appendix, Note i, pp. 

54-56. 

56 

Disputes often arose because of this divergence between the 

two powers.*® The British condemnation of provisions as 

contraband was seriously protested by the United States. The 

question was finally decided by a mixed commission, the award 

of which was a full indemnification of about $11,000,000 by 

the British government to the owners of vessels and cargoes 

seized by British cruisers under the Orders in Council.*^® 

(2) Continuous Voyage. — ^The question of continuous voy- 

age first came into prominence in connection with the Rule 

of the War of 1756. In the wars of the French Revolution, 

in which this rule was revived, American neutral carriers 

sought to avoid the application of the rule by first bringing 

the cargo to an American port and thence carrying it on to the 

home port. In order to put an end to this mode of commercial 

transaction. Sir William Scott applied what has since that 

time become known as the doctrine of continuous voyage. 

The "Mercury'' was one of the earlier cases of a ship and 

cargo actually condemned under this doctrine.*^^ In numerous 

other cases similar to this one, the British courts held that the 

cargo that touches a neutral port simply in order to make "a 

colourable importation" is condemnable.'*^ The main ground 

for this assertion was that if the ship showed any evidence 

in her papers, or any sufficient reason that she was going to 

any forbidden port, then it would be immaterial to what port 

she might immediately proceed. This principle was applied 

to the latter part of the voyage only, that is, after the vessel 

had touched at the intermediate neutral port. A vessel, whose 

ulterior destination was a hostile port, might be allowed to 

proceed on the first part of her voyage between the port of 

clearance and a neutral port, but as soon as she was found 

on the ultimate part of her voyage between the neutral port 

and her hostile destination, she was liable to capture and con- 

demnation as carrying on an illegal trade. This was the Eng- 

lish doctrine of continuous voyage. 

^Wharton, Digest, Vol. Ill, pp. 411-413. 

°* Moore, Arbitrations, Vol. I, pp. 341-344. ^ 

Admiralty Reporter, Robinson, Vol. V, p. 400. 

The "Sarah Christina", i Robinson 199; the "Carolina", 2 Robinson 

210; the "Nancy", 3 Robinson 71; the "Phoenix", 3 Robinson 154; the 

"Edward", 4 Robinson 56. American edition published in Philadelphia. 

All of these cases were decided between the years 1799 and 1802. 

57 

51 

S2 

B. Blockade, 

This period witnessed one of the two most remarkable events 

in the history of blockade. The so-called 'continental system' 

was nothing more than a paper blockade. As this system was 

partly discussed above, the further discussion here seems un- 

necessary. Though the questions of effectiveness of blockade 

and of the notification of its existence had been frequently 

debated by European jurists as well as European diplomats 

during the i8th century, the general practice had never been 

consistent. 

In regard to the question of notification, the United States 

became an advocate of the practice of special notification as 

early as 1794.'^' Perhaps due to the American influence, the 

British Admiralty Court wrote in 1804 in its instructions to 

Commodore Hood in regard to the blockade of Martinique 

and Guadeloupe, ''not to capture vessels bound to such ports 

unless they shall have been previously warned " 

The question of the effectiveness of blockade was subjected 

to a serious discussion as a result of the paper blockades of 

the Napoleonic wars. The British government appears to 

have practiced this sort of blockade as early as 1803, and con- 

tinued it to the end of the Napoleonic wars. The United 

States always protested against the abusive extension of block- 

ade.*^* In 1807, while engaged in a desperate struggle with Na- 

poleon, Great Britain yielded to the American remonstrances 

and sanctioned the principle that blockade can be regarded as 

effective only when it is sufficiently guarded to render the in- 

gress and egress of vessels a matter of imminent danger. 

By Spain the practice of paper blockade was kept up until 

1816, when Carthagena was declared to be in a state of block- 

ade. By this proclamation, the Spanish government pretended 

to blockade an area of some 3,000 square miles in extent. The 

American government at once repudiated it as "evidently 

repugnant to the law of nations." In consequence of this, the 

Spanish Vice-Royalty openly confessed that it had no know- 

*' By Art. 18 of the Jay treaty it was agreed that if "vessels sail for 

a port or place without knowing that the same is besieged, block- 

aded, or invested every vessel so circumstanced may be turned 

away from such port or place " Treaties and Conventions, 187 1, 

p. 328. 

•* Moore, Digest, Vol. VII, pp. 788-789. 

58 

ledge of the law of nations, and the blockade was raised on 

September 2, 181 7. 

C. Right of Visit and Search. 

(i). Right of Visit and Search in General. — ^The general 

tendency of the United States in regard to the right of visit 

and search has constantly been to oppose the strict and severe 

practice of Great Britain'*^ in respect to the exemption of neu- 

tral vessels under convoy. 

The exemption of convoyed vessels from the belligerent right 

of visit and search was always denied by Great Britain and 

insisted upon by the United States. Recent writers on the 

subject assert that "the decisions of the American courts and 

the opinion of American jurists support the English view."'^ 

But in fact, this is only partially true. They have failed to 

observe the difference between the case of neutral merchantmen 

under the convoy of belligerent war vessels and that of neutral 

merchantmen under the convoy of war vessels of their own 

country. In the former case, there appears some divergency 

of opinion among the American jurists, while in the latter, 

the United States is never found to have supported the British 

view. 

(a) Neutral Merchantmen under Belligerent Convoy. — The 

British courts hold that a neutral vessel under enemy convoy 

will take the belligerent character, and therefore, it must be 

treated as enemy. This view was accepted by the United States 

government and supported by Justice Story. In the case of 

the "Nereide" in 181 5, he declared that "the belligerent convoy 

is naturally bound to resist all visitations by enemy ships whe- 

ther neutral to the convoyed ships or not. The neutral that 

secures the belligerent protection also declares that he will not 

submit until the enemy convoy is conquered."®^ 

(b) Neutral Merchantmen under the Convoy of their own 

Nation. — In respect to the neutral merchantmen under the con- 

voy of ships of their own nation, there was no concurrence of 

opinion between Great Britain and the United States. Great 

Britain made no distinction between the belligerent convoy and 

the neutral's own convoy. The British courts denied the right 

•"i Robinson 287, Am. Ed. 

"Atherly- Jones, Commerce in War, pp. 322-323. 

U. S. Supreme Court Reports, 9 Cranch 388, 441. 

59 

M 

•7 

of convoy, both belligerent and neutral. The United States, 

on the other hand, always maintained that "the verbal declara- 

tion of the commander of the convoy, on his word of honor, 

that the vessels under his protection belong to the nation whose 

flag he carries, and when they are bound to an enemy's port, 

that they have no contraband goods on board shall be sufficient. 

With these conditions," continued Secretary Fors)rth, in his 

correspondence with the Mexican minister, May i8, 1837, 

"the United States have at all times been willing to comply 

"" This principle was embodied in the treaty of 1797 

with Tunis,'® and in that of 1800 with France.*® 

On June 17, 1801, Great Britain, however, recognized, by 

joining the famous Maritime Convention of St. Petersburg, the 

exemption of convoy. Although the rule of entire immunity 

of convoyed vessels was not formally accepted by Great Bri- 

tain, it was a decided compromise on her part. It was agreed 

that merchant vessels sailing under convoy should be required 

to produce to the commander of the convoy their passports and 

ship's papers so that when necessary, the commander might 

prove the verification. It was further stated that this verifi- 

cation being made, that there should be no pretense for any 

search.*^ 

"Warton, Digest, Vol. III. p. 318. 

*• Treaties and Conventions, 1871, p. 847. 

^Ibid, p. 272. 

•• Martens, Recueil, 2nd Ed., Vol. VII, p. 263. 

60 

CHAPTER 4 

History of Neutrality from i8i8 to i86i 

I. The British Foreign Enlistment Act of 1819. 

After the close of the European wars in 181 5, British sol- 

diers and sailors were freely enlisted and organized in British 

jurisdiction for the service of the South American provinces. 

Under these circumstances, the British government, following 

the example of the United States, passed in 1819 the Foreign 

Enlistment Act "to prevent the enlisting or engagement of 

His Majesty's subjects to serve in foreign service, and the 

fitting out or equipping in His Majesty's dominion vessels for 

warlike purposes, without His Majesty's license." This statute 

was based upon the American Act of 1794, and in its enact- 

ment the endeavor was made to follow as closely as possible 

the American course of legislation. Mr. Canning passed the 

highest eulogy upon the American system of neutrality. In 

1823, when a bill was introduced in Parliament to repeal 

the Act of 1819, he made a speech in which he said, "If I 

wished for a guide in a system of neutrality, I should take 

that laid down by America, in the days of the presidency of 

Washington, and the secretaryship of Jefferson." 

The American Enlistment Act required securities in double 

the amount of the value of the ship and cargo ready to depart, 

promising that the same would not be employed in any service 

contrary to the law. This part of the measure was omitted in 

the British Act of 1819. 

II. FiLIBUSTERERS. 

The American practice of neutrality during this period in- 

volved numerous cases under different circumstances. In the 

famous case of the "Bolivar", the American court decided 

that Quincy was not guilty, on the ground that the "Bolivar" 

did not form the intention before the departure from the juris- 

diction of the United States. Quincy, an American citizen, 

sailed under his command a pilot boat, the "Bolivar", from 

61 

Baltimore to St. Thonias. On the arrival at St. Thomas, Arm- 

strong, the owner of the '"Bolivar", procured funds and fitted 

her out as a privateer under the flag of Buenos Ayres. After 

<veveral captures of Spanish vessels made on the high seas, she 

returned to the United States with Quincy and Armstrong still 

on board. Quincy was indicted on the ground that he had been 

knowingly concerned in the fitting out of a vessel "with intent 

that such vessel should be employed in the service of a foreign 

prince . . ." The court held that "the oflFense consists 

principally in the intention with which the preparations to com- 

mit hostilities were made. These preparations . . . must 

be made within the limits of the United States . . . and the 

intention . . . should be formed before she leaves the 

United States."* So long as the intention was formed outside 

of the jurisdiction of the United States, Quincy could not be 

condemned. 

The facilities and countenance rendered by the American 

government to the agent sent by the German government about 

1848, at the time of the German liberal movement, to purchase 

a ship of war from an American company, were withdrawn 

when complaints were made of it. When the ship was ready 

to leave, the American government demanded bonds to the 

sum of $900,000. 

When American sympathy was thoroughly aroused toward 

the liberal movement in Hungary, and the President of the 

United States was authorized by a joint resolution of the two 

Houses of Congress, in March, 185 1, to send a ship of war to 

bring to the United States the Hungarian patriot, Kossuth, 

then a refugee with the Porte, the neutrality of the United 

States was severely tested.- On his arrival in the United 

States, Kossuth was received with overwhelming enthusiasm 

both by the government authorities and by the people.^ But 

the reason why he failed in his efforts to secure from the 

United States not only sentimental but "operative sympathy" 

in the shape of "financial, national, or political aid", was be- 

cause the American statesmen realized that the United States 

was bound under its neutral obligations not to interfere with 

* U. S. Supreme Court Reports, 6 Peters 445. 

* Statutes at Large, Vol. IX. p. 647. 

* Richardson « Messages, Vol V, p. 119, the President's Message of 

IVc. a, i85U 

62 

Hungarian affairs. Henry Clay told Kossuth, "you must 

allow me to protest against the policy you propose to her 

(The United States), and he further said that "our ancient 

policy of amity and nonintervention in the affairs of other 

nations" must not be abandoned.* 

At the time of the Cuban insurrections, in 1849 and 1851, 

the sympathy of the South with Lopez and his followers was 

so strong that it was hard to enforce the laws of neutrality. 

Hostile expeditions, organized by American citizens within the 

jurisdiction of the United States, became very threatening, and 

President Taylor issued a proclamation against them.^ But 

this proved insufficient, and President Fillmore issued another 

warning against any unlawful acts.® Lopez' first expedition 

was successfully prevented. But another expedition suc- 

ceeded in escaping, and Lopez' followers were captured as 

pirates by the Spanish. Lopez was tried by a Southern jury on 

a charge of violating the neutrality of the United States, and 

was released. He gathered his scattered forces and made a sec- 

ond descent on the Island in August, 185 1. When the news of 

his capture and garroting, and the death of his fifty followers 

reached the United States, a mob in New Orleans wrecked the 

Spanish consulate and defaced a portrait of the Spanish Queen- 

Mr. Webster offered a reparation for the insult and recom- 

meded to Congress the granting of an indemnity for the dam- 

age, thus to restore the diplomatic relations with Spain. 

The famous case of the "Caroline" brought out a very im- 

portant principle. During the progress of the Canadian re- 

bellion in 1838, a body of men fitted out in American territory 

the "Caroline" for the invasion of British territory. She was 

attacked by an English force while at anchor on the American 

side of the Niagara, and was sent adrift over the Falls. The 

American government complained of the violation of its neu- 

tral territory, and the British government answered by plead- 

ing self-defense in justification of the act. After an exchange 

of notes the government at Washington dropped the matter, 

acquiescing in the British contention of the necessity of self- 

defense, "instant, overwhelm'ing, leaving no choice of means, 

*Schurz, Clay, Vol. II, p. 394. 

'Richardson, Messages, Vol. V, p. 7. 

^Ibid, p. III. 

63 

and no moment for deliberation".'^ This case constitutes the 

precedent, upholding the principle that when a state neglects its 

obligations so as to place another in a position of extreme 

gravity, leaving no time for deliberation, the principle of in- 

violability of territory should be subordinated to the principle 

of self-preservation. 

III. The Monroe Doctrine. 

After the formation of the Holy Alliance, the allied powers 

of Europe at Congresses held at Aix-la-Chapelle, Troppau, 

Laibach and Verona, promulgated and attempted to maintain 

the doctrine of legitimacy'. When George Canning was urg- 

ing the United States government to adopt a joint action with 

Great Britain against the concert of Europe, and the gov- 

ernment at Washington was much divided in opinion as to the 

reception or rejection of the British proposal, President Mon- 

roe, through the influence of John Quincy Adams, sent to 

Congress his Message of December, 1823, which contained 

what has ever since been known as the Monroe Doctrine.* In 

that message he clearly defined the neutral position of the 

United States. He said in part, "In the wars of the European 

powers in matters relating to themselves we have never taken 

any part. ... It is only when our rights are invaded 

or seriously menaced that we resent injuries or make prepa- 

rations for our defense. ... In the war between those 

new Governments and Spain we declared our neutrality at the 

time of their recognition, and to this we have adhered, and 

shall continue to adhere, provided no change shall occur 

which . . . shall make a corresponding change on the part 

of the United States indispensible to their security."** 

IV. The Declaration of Paris. 

The Declaration of Paris, made on April 16, 1856, by Great 

Britain, Austria, France, Prussia, Sardinia and Turkey, adopt- 

ed the following principles : 

* Senate Documents, Foreign Relations, ist Session, 27th Congress, 

1841, pp. 15-20, Webster to Fox, April 24, 1841, and Parliamentary 

Papers, 1843, Vol. LXI, pp. 46-51, Lord Ashburton to Webster, July 28, 

1842. 

•Richardson, Messages, Vol. II, pp. 207-220. 

* Ihid, p. 218. 

64 

(i) Privateering is and remains abolished. 

(2) The neutral flag covers enemy goods, with the excep- 

tion of articles of contraband. 

(3) Neutral goods with the exception of contraband of 

war, are not liable to capture under enemy flag. 

(4) Blockade, in order to be binding, must be effective; i. e., 

maintained by a force sufficient actually to prevent access to 

the coast of the enemy. 

It was further declared that, "Considering that maritime 

law, in time of war, has long been the subject of deplorable 

disputes ; 

"That the uncertainty of the law and the duties in such 

a matter gives rise to differences of opinion between neutrals 

and belligerents which may occasion serious difficulties, and 

even conflicts; 

"That it is consequently advantageous to establish a uni- 

form doctrine on so important a point ; 

"The Governments of the undersigned plenipotentiaries en- 

gage to bring the present declaration to the knowledge of the 

states which have not taken part in the Congress of Paris, and 

to invite them to accede to it."^® 

Concerning the first of these principles, namely, privateer- 

ing, the United States first made an unequivocal effort to 

abolish this system by treaty stipulations,^^ and as a result 

many European powers adopted this position.^^ The second 

and third articles of the Declaration of Paris; i. e., the princi- 

ple of free ship, free goods, and that of free goods free in 

enemy ship, the United States had all this time maintained 

and had succeeded in having them stipulated in most of its 

treaties. In 181 3 the United States made a special effort to 

have these principles established. In his correspondence. Sec- 

retary Adams definitely asserted that "It is evident, however, 

that this usage (of condemning free goods in enemy ships) 

has no foundation in natural right", and is subject to special 

treaty stipulations.^^ He further said "This search for and 

seizure of the property of an enemy in the vessel of a friend 

n 

u 

Moore, Digest, Vol. VII, pp. 561-562. 

Wharton, Digest, Vol. Ill, pp. 276-302. 

T. G. Bowles, Defense of Paris, pp. 166-175. 

"Wharton, Digest, Vol. Ill, p. 259, Adams to Anderson, May 27^ 

1823. 

65 

is a relic of the barbarous warfare of barbarous ages . . . ".^* 

Again he said that the government of the United States wished 

for the universal establishment of this principle (that of 

fre6 ship, free goods) as a step towards the attainment of 

the other (the principle that neutral goods laden in an enemy 

vessel shall be free), the "total abolition of private maritime 

war*'.^*^ "The principle upon which the government of the 

United States now offers this proposal to the civilized world 

is", said he later, "that the same precepts of justice, of charity, 

and of peace, under the influence of which Christian nations 

have . . . exempted private property on shore from the 

destruction or depredation of war, require the same exemption 

in favor of private property upon the sea."^* 

At the outbreak of the Crimean War in 1854, the United 

States submitted to the several maritime powers two pro- 

positions which the President solicited them to establish as 

permanent principles of international law. The two rules pro- 

posed were : first, that free ship makes free goods, with the ex- 

ception of contraband of war ; and secondly, that the property 

of neutrals on board an enemy ship is not subject to confisca- 

tion, unless the same be contraband of war." Russia and 

several other neutral powers notified their adhesion to the 

American overtures, but Great Britain and France did not 

act upon the two propositions, though forbearing not to reject 

them.^® While the United States government was endeavoring 

to see through its ministers abroad if the European govern- 

ments could be induced to adopt these principles permanently, 

the powers then assembled at Paris "put forth a declaration 

containing the two principles which this government had sub- 

mitted nearly two years before to the consideration of mari- 

time powers, and adding thereto the following proposition: 

viz., 'Privateering is and remains abolished', and 'Blockade 

in order to be binding must be effective' ".^® The rule con- 

" Wharton, Digest, Vol. III. p. 259, Secretary Adams to Canning, 

June 24, 1823. 

''Ibid., p. 261, Secretary Adams to Rush, July 28, 1823. 

'* Ibid., p. 261, Secretary Adams to Mr. Middleton, Aug. 13, 1823. 

" Moore, Digest, Vol. VII, p. 570. 

** Richardson, Messages, Vol. V, p. 412, President Pierce's Message, 

Dec. 2, 1856. 

'Ubid, 

66 

cerning blockade declared by the powers at Paris "is merely 

the definition of blockade . . . for which this country has 

always contended".^^ The United States refused to accede to 

the Declaration of Paris because the powers did not admit 

the exemption of private property in maritime warfare. 

Most of the European powers then held and still hold that 

private enemy property in land warfare is exempt from 

belligerent appropriation, but that naval warfare has for its 

object the destruction of maritime resources. On this ground 

the property belonging to an enemy is liable to capture whether 

public or private. Against this argument the United States has 

contended that the seizure of the property of the private enemy 

individual in naval warfare is incompatible with the principle 

of the law of nations. When the United States was invited to 

adhere to the Declaration of Paris in 1856, the President 

replied that, if the first article, viz., "Privateering is and 

remains abolished", be amended so as to add to it a paragraph 

to the effect that "The private property of the subjects or citi- 

zens of a belligerent on the high seas shall be exempted from 

seizure by public armed vessels of the other belligerent unless 

it be contraband", the United States would accede to the Dec- 

laration. This principle expressed in Secretary Marcy's reply 

was known as the Marcy Amendment or the American Amend- 

ment. The Marcy amendment was well received by other pow- 

ers party to the Declaration, but Great Britain obstinately re- 

fused to admit it and consequently the United States declined 

to become party to the Declaration.^^ 

V. Recognition of Belligerency and Independence. 

Before and immediately after the American war for inde- 

pendence, the question oif the recognition of belligerency and 

independence had hardly any chance to give rise to serious dis- 

pute. After the American colonies took the lead in revolting 

against the mother country, and had successfully established an 

independent and new form of government, and after this 

national spirit mingled with revolutionary principles had been 

propagated throughout the two hemispheres, many a small 

* Richardson, Vol. V, p. 413. 

"" Moore, Digest, Vol. VII, pp. 562-572. 

67 

community followed the new example and rose up in open 

rebellion and appealed to other powers for the recognition of 

their independence. During the period of revolutionary propa- 

ganda, this question became, for the first time in the history 

of the law of nations, a subject of the most lively discussion 

and was frequently of ardent dispute. 

If a community is engaged in a struggle for liberty from the 

yoke of its mother country, a neutral state may recognize the 

belligerency of the rebelling state so soon as the commercial 

interests of the neutral are affected by the existence of hostili- 

ties, or as soon as its integrity and existence are threatened, but 

without compromising its neutrality, thus rendering the insur- 

gents the privileges and rights to which belligerents are entitled 

by the law of war. This being strictly a question of policy or 

prudence on the part of the recognizing state, neither the act 

of formal acknowledgment nor the refusal to grant such should 

afford any legal ground for complaint. 

The recognition of independence is, though somewhat similar 

to that of belligerency, much more serious. There are certain 

conditions which form the legal basis for such recognition on 

the part of the neutral. As to these conditions, opinion had 

been divided and there was no standard until the American 

war for independence. "The acknowledgment of the indepen- 

dence of the United States by France", says Wheaton, "coupled 

with assistance secretly rendered by the French Court to the 

revolted colonies, was considered by Great Britain as an unjus- 

tifiable aggression, and under the circumstances it probably 

was so".^^ On this ground the declaration of war by Great 

Britain was considered justifiable. 

On the other hand, the French argued that their recognition 

of American independence was based upon the ground that 

the United States had not only declared their independence, but 

they had the ability to maintain their de facto government. 

Here the question again arose as to who should determine such 

ability or inability. 

In 1810 insurrections broke out all over the Spanish-Ameri- 

can provinces. The insurgents in Buenos Ayres were com- 

pletely successful and formally declared themselves indepen- 

dent in 1816. Chile declared its independence in 1818 and 

maintained it unmolested. Mr. Clay proposed in Congress in 

" Wheaton, History of Law of Nations, pp. 220-294. 

68 

i8i8, to recognize the revolting provinces, which were prac- 

tically at that time free from the Spaniard.^^ The motion 

was rejected on the ground that the mother-country might yet 

have a reasonable chance of success in some places, which, if 

subdued, would serve as a basis of operations against the rest 

of the colonies. While existing order in these two provinces 

remained unaltered, Columbia expelled the Spaniards in 1822 

and the struggle soon ceased. President Monroe declared in 

his message to Congress that "The contest has now reached 

such a stage and been attended with such decisive success on 

the part of the provinces that it merits the most profound 

consideration whether their right to the rank of independent 

nations is not complete".^* The Senate Committee on Foreign 

Affairs, to whom the matter was referred, reported in favor 

of recognition, with an assertion of the principle that "the po- 

litical right of the United States to acknowledge the Indepen- 

dence of the South American Republics, without offending 

others, does not depend upon the justice but upon the actual 

establishment" of that independence. The Committee further 

asserted that the recognition of new governments "compre- 

hends, first, an acknowledgment of their ability to exist as 

independent states, and secondly, the capacity of their particu- 

lar Governments to perform the duties and fulfil the obliga- 

tions towards foreign Powers ".^^ The recognition was 

soon made by the United States and the British government 

followed the example soon afterwards. 

Although the recognition of the independence of Texas by 

the United States in 1837 was given before that of any other 

state, it was not considered premature, for all substantial strug- 

gle with Mexico was over in 1836, and Texan independence 

was fait accompli.^® When Texas declared itself independent 

of Mexico in 1836, the Texan flag was admitted into the port 

of New York as if enjoying full belligerent rights. To a 

remonstrance made by the Mexican government it was an- 

swered on the part of the United States that "it has been 

deemed sufficient that the party declared its independence, and 

2S 

24 

Wharton, Digest, Vol. I, pp. 527-529. 

Richardson, Messages, Vol. II, p. 116, Presid«ent Monroe's Message, 

Wharton, Digest, Vol. I, p. 531. 

Boyd, IVheaton, p. 42. 

69 

at the time was actually maintaining it".*^ When the Senate 

Committee on Foreign Affairs recommended to the Senate 

that the independence of Texas should be acknowledged by 

the United States, President Jackson sent a special message 

to Congress on December 21, 1836, advising delay in the 

recognition. It read in part as follows : 

"The acknowledgment of a new state as independent and 

entitled to a place in the family of nations is at all times an 

act of great delicacy and responsibility, but more especially 

so when such state has forcibly separated itself from another 

of which it had formed an integral part and which still claims 

dominion over it. A premature recognition under these cir- 

cumstances, if not looked upon as a justifible cause of war, is 

always liable to be regarded as a proof of an unfriendly spirit 

to one of the contending parties. All questions relative to the 

government of foreign nations, whether of the Old or the 

New World, have been treated by the United States as ques- 

tions of fact only, and our predecessors have cautiously ab- 

stained from deciding upon them until the clearest evidence 

was in their possession to enable them not only to decide cor- 

rectly, but to shield their decisions from every unworthy im- 

putation."^^ 

"It is true that with regard to Texas, the civil authority of 

Mexico has been expelled, its invading army defeated, the chief 

of the Republic himself captured, and all present power to con- 

trol the newly organized Government of Texas annihilated 

within its confines. But, on the other hand, there is, in appear- 

ance at least, an immense disparity of physical force on the 

side of Mexico. The Mexican Republic under another exec- 

utive is rallying its forces under a new leader and menacing a 

fresh invasion to recover its lost dominion. 

"Upon the issue of this threatened invasion the inde- 

pendence of Texas may be considered as suspended 

Prudence, therefore, seems to dictate that we should still stand 

aloof and maintain our present attitude "^® 

The fact that the United States took more than ordinary 

caution in the case of Texas is amply demonstrated in the com- 

'^ Wharton, Digest, Vol. I, p. 509, Forsyth to Gorostiza, Sept. 20, 

1836. 

"Richardson, Messages, Vol. Ill, p. 266. 

« Ibid., p. 268. 

70 

munications between Secretary Webster and the Spanish min- 

ister.®^ But the reported fresh invasion attempted by Mexico 

was finally abandoned, and the United States consequently 

acknowledged the independence of Texas in March, 1837, 

which course was followed by Great Britain and France in 

1840. In reply to the complaints of the Mexican government, 

Secretary Webster reasoned in the correspondence above re- 

ferred to, saying: 

"It is true that the independence of Texas has not been rec- 

ognized by Mexico. It is equally true that the independence 

of Mexico has only been recently recognized by Spain ; but the 

United States having acknowledged the independence of Texas 

although Mexico has not yet acknowledged it, stands in the 

same relation toward both those governments No 

effort for the subjugation of Texas has been made by Mexico, 

from the time of the battle of San Jacinto, on the 21st day of 

April, 1836, until the commencement of the present year, and 

during all this period Texas has maintained an independent 

government, carried on commerce, and made treaties with 

nations in both hemispheres, and kept aloof all attempts at 

invading her territory."®^ 

The conduct of the United States government in regard to 

the question of Hungarian independence was subject to severe 

criticism as "unjustifiable towards Austria".'^^ The important 

point that invites our attention in connection with this affair 

is the assertion of the principle that the sending of a secret 

agent by a neutral state to examine the political conditions 

of the revolted community does not constitute a premature 

recognition. 

The mission of Dr. Dudley Mann, the American agent sent 

by President Taylor in 1849 at a time of overwhelming de- 

mand for the recognition of Hungarian independence, was to 

see whether or not Hungary was in a condition politically to 

justify the recognition of its independence by the United 

States. The most assailable and disputable part of this action 

was that he was invested with the power to declare the willing- 

ness of the government to recognize the independence of Hun- 

~ Webster's Works, 5th Ed. Vol. VI, p. 434. 

" Ibid. 

Boyd, Wheat on, p. 42. 

71 

83 

gary in the event of her ability to maintain it.^^ The Austrian 

minister complained of the act as unneutral, and this com- 

plaint was ably answered by Secretary Webster in his famous 

Htilseman letters.'* The fact was that the United States did 

not recognize the independence or even the belligerency of 

Hungary, but confidentially and secretly took its own meas- 

ures to make sure of its ground before any further step should 

be taken. When the Hungarian agent to the United States 

asked for the recognition of Hungarian independence, Presi- 

dent Taylor refused to take any immediate action and sent Mr. 

Mann to Europe and not to Hungary, with secret instructions 

to obtain all the reliable information that he could in regard 

to the actual condition of the insurrection. As a matter of fact 

Mr. Mann did not go into Hungary at all but obtained all the 

information that he got while residing in other continental 

countries.*** As a result of his investigations, Mr. Mann re- 

ported that the conditions were not what he had been led 

to believe they were, and strongly advised the government not 

to recognize the independence of the Hungarians. Further- 

more, he forbore to give publicity to his mission, which was 

also in accordance with the instruction that he had received 

from Washington.*^ And besides, the Hungarian patriots 

might have succeeded in their struggle for liberty had it not 

been for the interference of Russia. However, Webster 

was cautious and diplomatic enough not to take any formal 

action, while Congress offered asylum to the Hungarian exiles 

after the crushing defeat of 1849. 

Boyd admits that the "sympathy which the American people 

undoubtedly felt for the Hungarians should not have been 

thus expressed officially, more especially as the geographical 

position of both countries prevented the United States being 

in any way concerned in the matter".*^ "The expression of 

popular sympathy'' referred to was President Taylor's An- 

nual Message of December 1849, ^^^ the publication of the 

instructions of Mr. Mann by the order of the Senate on March 

"Webster's Works, Vol. VI, p. 488, Hiilseman to Webster, Sept. 30, 

1850. 

** Ibid., p. 491 et seq. 

"Dana, JVheaton, p. 46. 

" Ibid, 

" Boyd, Wheaton, p. 42. 

72 

28th, 1850.** But as a matter of fact, these instructions wer6 

published after the Hungarian war had ceased. Webster 

ably justified the attitude taken by the President by contending 

that "governments hostile to popular institutions must ex- 

pect to see demonstrations of sympathy and feeling by the 

people of a free country, and expressions may appear in con- 

fidential domestic communications of the government itself; 

but such governments must be content, if the government, in 

its relation with them during the contest, performs faithfully 

the duties enjoined upon it by international law, gives no public 

or official moral support to the insurrection, abstains from rec- 

ognizing independence until it exists in fact, and executes faith- 

fully the duties of neutrality in the contest, as regards all mate- 

rial aids." 

VI. The General Exercise of Neutral Rights 

A. Contraband of War, 

During the Crimean War, Americans sold gunpowder, arms 

and warlike stores of all kinds to all the belligerents regardless 

of the destination of those articles. They were also employed 

by Great Britain and France in transporting troops, provisions 

and munitions of war to the seat of military operations and 

in bringing home their sick and wounded soldiers. In reply 

to the complaint of the Russian government, it was asserted 

on the part of the United States "that such use of our mer- 

cantile marine is not interdicted either by international or our 

own municipal law, and therefore does not compromise our 

neutral relations with Russia".^® President Pierce's Annual 

Message of December 3, 1854, reaffirmed the Jeffersonian 

theory of neutral commerce by declaring that "the laws of 

the United States do not forbid their citizens to sell to either 

of the belligerent powers articles contraband of war or take 

munitions of war or soldiers on board their private ships for 

transportation ; and although in so doing the individual citizen 

exposes his property or person to some of the hazards of war, 

his acts do not involve any breach of national neutrality 

".*° In the case of the "St. Harlampy" it was posi- 

" Wharton, Digest, Vol. I, pp. 189-200. 

■•Richardson, Messages, Vol. V, p. 331. 

^ Ibid. 

73 

tively re-asserted by Secretary Marcy that the neutral has a 

perfect right to purchase the merchant vessels of the belli- 

gerents.*^ 

Meanwhile the United States concluded many treaties with 

European and Central and South American states, restricting 

the list of contraband articles to the narrowest possible limits.*^ 

The treaty of 1849 with Guatemala is the common form of 

American treaties as far as contraband goods are concerned. 

To this, the treaty of 1825 with Brazil which included military 

clothes or uniforms as contraband, and several other treaties 

concluded during this period, are exceptions. During the 

Crimean war all the principal belligerent powers limited con- 

traband strictly to arms and munitions of war. 

B. Blockade. 

From the downfall of Napoleon to the Declaration of Paris, 

a number of blockades were instituted on the Baltic Coasts, in 

several of the South American ports and elsewhere, but these 

blockades followed no precise or uniform rule as to the notifi- 

cations, effectiveness or legality. Some proclamations extend- 

ed to such a large area of the coasts as to say, "we will block- 

ade all blockadeable ports." In 1849, ^^^ Danish minister 

notified a blockade of all the ports of Schleswig and Holstein, 

and some expressed the intention of a future blockade. 

In 1825 Brazil declared a blockade of Buenos Ayres and Uru- 

guay extending over twenty degrees of latitude, and main- 

tained by one frigate, one corvette, and three brigs. Calling 

this a 'blockade', the Brazilian government required all neutral 

vessels ready to depart to furnish bonds with promise not to 

violate the blockade of Buenos Ayres. The United States 

made a formal protest against the legality or the validity of 

the demand. Henry Clay, Secretary of State, wrote to the 

American representative in Brazil to the effect that "that meas- 

ure has no justification whatever in the law of nations 

" Wharton, Digest, Vol. Ill, pp. 652-653, Marcy to Mason, Feb. 19, 

1856. 

^ The treaty of 1800 with France, Treaties and Conventions, 1871, p. 

270; that of 1825 with Brazil, p. 98; that of 1831 with Mexico, p. 549; 

that of 1836 with Venezuela, p. 878 ; that of 1836 with the Peru-Bolivian 

Confederation, p. 667; that of 1839 with Ecuador, p. 232; that of 1850 

with San Salvador, p. 749; and that of 1849 with Guatemala, p. 440. 

74 

A blockade must execute itself The belligerent has no 

right to resort to any subsidiary means"." In this dispute 

the United States upheld the principle of individual or special 

notification of blockade. 

This and other similar cases illustrate the practice of papef 

blockade. There was no combined effort made by the Euro- 

pean powers for the prevention of such illegal practice until 

1856 in the Declaration of Paris. The United States had con- 

stantly been contending against the continental system and 

had made many claims for the damages sustained by the Ameri- 

can carriers at the hands of the French cruisers and privateers 

during the struggle of 1806 and 1807 between Great Britain 

and France. Satisfaction had been constantly demanded for 

the illegal captures of neutral commerce, but with no avail. 

In 1829 President Jackson asserted in his Annual Message to 

Congress "that they would continue to furnish a subject of 

unpleasant discussion and possible colHsion.'' This long dis- 

pute strained the relations between the two governments. In 

1 83 1 Louis Philippe concluded a treaty with the United States 

at Paris, promising the payment of $5,000,000 for indemnity. 

The United States promptly ratified the treaty in 1832, but the 

French Chambers refused to appropriate the money. Louis 

Philippe intimated through the American minister that an earn- 

est message from the President to Congress would serve to in^ 

duce the French Chambers to give attention to the matter. In 

consequence of this intimation. President Jackson's message of 

December i, 1834, urged the passage of a law, authorizing re- 

taliation upon French property.*^ The vigorous language used 

in the message was little short of a declaration of war, and 

France consequently withdrew her minister at Washington, but 

the appropriation was soon made and the neutral demand of 

the United States was thus satisfied at last. 

C. The Right of Visit and Search. 

Another controversy settled in this period was that of the 

question of belligerent convoy between Denmark and the 

United States. The American neutral merchantmen with 

" Atherly-Joncs, Commerce in War, pp. 133 ff. 

** Schurz, Clay, Vol. II, p. 52. 

** Richardson, Messages. Vol. Ill, p. 105 et seq. 

75 

British convoy, then enemy to Denmark, were captured by 

Danish cruisers under the order of 1810. After a long dis- 

pute between the two powers, a treaty was signed in 1830, 

stipulating an indemnity to be paid by Denmark to the Ameri- 

can claimants for the seizure of their property.** While ad- 

mitting that sailing under enemy convoy was a justifiable 

cause for condemnation, the American commissioners argued 

that the American merchant vessels had submitted themselves 

to the British convoy not in order to escape search by Danish 

crusiers but in order to escape from the Milan and Berlin 

decrees of France, then an ally of Denmark.*^ Strong argu- 

ments were presented in favor of both sides, but even some 

of the Ariierican jurists expressed doubts as to the justifica- 

tion for the position taken by the United States in this con- 

troversy. 

From 1824 to 1858 the United States made a dozen or more 

different treaties holding the principle that simple declaration 

of the commander of the convoy is deemed sufficient to prove 

the innocence of the merchantmen.*® By that of i860 with 

Venezuela it was further agreed in addition to the usual pro- 

visions, not to admit any merchant ship carrying on board con- 

traband of war, to be protected by their convoys. Germany, 

Austria, Spain, Italy and the Baltic powers all agreed with 

and accepted the American usage, and France made six treaties 

during this period with the United States and other American 

Republics, adopting the same principle. 

** Martens, Nouveau Recueil, Vol. VIII, p. 350. 

Dana, Wheaton, p. 709. 

Treaties that stipulated the exemption of convoy are : That of 1824 

with Colombia, Treaties and Conventions, 1871, p. 174; that of 1828 

with Brazil, p. loo; that of 1831 with Mexico, p. 551; that of 1832 with 

Chile, p. 124; that of 1836 with the Peru-Bolivian Confederacy, p. 669; 

that of 1836 with Venezuela, p. 879; that of 1839 with Ecuador, p. 234; 

that of 1846 with New Granada, p. 184; that of 1849 with Guatemala, 

p. 442 ; that of 1850 with San Salvador, p. 751 ; that of 1851 with Peru, 

p. 683; that of 1858 with Bolivia, p. 87; and that of i860 with Vene- 

zuela, p. 891. 

47 

48 

76 

CHAPTER 5 

History of Neutrality from i86i to 1872 

I. Recognition of Belligerency. 

When the secession movement was threatening in the South 

and all the European powers, especially Great Britain, were 

dosely watching its progress, Mr. Black, the Secretary of 

State, on February 28, 1861, strongly appealed to the European 

powers not to recognize the independence of the seceding States 

or to encourage their disunion movement. In his circular to 

the United States Ministers abroad he said, "It is the right of 

this government to ask of all foreign powers that the latter 

shall take no steps which may tend to encourage the revolu- 

tionary movement of the seceding States, or increase the dan- 

ger of disaffection in those which still remain loyal".^ To 

this warning Lord Russell replied that England would be re- 

luctant to take any step which might sanction the separation, 

but that he could not make any promise for England in an 

affair whose circumstances might vary.^ Mr. Seward, succes- 

sor to Secretary Black, instructed the American Ministers 

abroad to the effect that any Confederate agent seeking for 

foreign intervention must be prevented from going abrqad. 

Jn his circular of March 9, 1861, he said, "My predecessor 

instructed you to use all proper and necessary meas- 

ures to prevent the success of efforts which may be made 

by persons claiming to represent those States of this Union 

in whose name a provisional government has been announced to 

procure a recognition of their independence by the government 

of Spain."^ 

During the early part of the year 1861, seven States of the 

Union formed themselves into a separate Confederation with 

a constitutional government completely organized. Actual hos- 

tilities commenced on April 12, 1861, with the bombardment 

of Fort Sumter. After a two days' struggle the fort fell into 

* Diplomatic Correspondence of the United States, 1861, p. 15. 

*Lord Russell to Lord Lyons, May 6, 1861. 

*Dip. Cor., 1861, p. 16. 

77 

the hands of the Southern troops. Two hundred thousand 

men were under arms against the Federal government before 

the end of the month. President Lincoln's proclamation of 

the 15th called for 75,000 volunteers to suppress the seceding 

States, stating that they were " . . . . too powerful to be sup- 

pressed by the ordinary course of judicial proceedings or by 

the powers vested in the marshals by law."* 

After land warfare had thus begun, the President of the 

Southern Confederacy proclaimed on the 17th of April that 

letters of marque and reprisal might be issued to vessels to 

cruise against Northern commerce, and in reply to this, Presi- 

dent Lincoln issued his proclamation declaring that the entire 

coast of the Southern States was in a state of blockade. In 

this proclamation, President Lincoln said, " and 

whereas a combination of persons, engaged in such insurrec- 

tion, have (sic) threatened to grant pretended letters of marque 

to authorize the bearers thereof to commit assaults on the lives, 

property or the goods of the citizens of the country lawfully 

engaged in commerce on the high seas, and waters of the 

United States I have deemed it advisable to 

set on foot a blockade of the ports within the States afore- 

said a competent force will be posted so as to pre- 

vent entrance and exit of vessels from the ports aforesaid. If 

therefore, with a view to violate such blockade, a vessel shall 

approach, or shall attempt to leave either (sic) of the said 

ports, she will be duly warned by the commander of one of 

the blockading vessels .... and if the same vessel shall again 

attempt to enter or leave the blockaded port, she will be cap- 

tured and sent to the nearest convenient port for such proceed- 

ings against her and her cargo as prize, as may be deemed 

advisable "° 

The official copy of this proclamation reached London on the 

loth of May and the Queen issued the proclamation of neu- 

trality on the following 14th, recognizing at the same time the 

belligerency of the Confederate States. This action was con- 

sidered by the United States government as unfriendly and 

unneutral, and the question was made the subject of reiterated 

complaints. The justification of the British recognition lies 

in the fact, as the British argued, that the state of war was 

* Richardson, Messages, Vol. VI, p. 13. 

'/Wrf., pp. 14-15. 

78 

actually in existence, that the Confederate States possessed 

the de facto government required, that the offer of the letters 

of marque and the extension of warfare to maritime opera- 

tions affected neutral commerce,® and above all, that Lincoln's 

proclamation of blockade constituted the virtual admission 

by the Federal government of the belligerency of the Con- 

federate States. On the other hand, the United States claimed 

that no public war existed as long as the United States gov- 

ernment retained the legal sovereignity over the seceding 

States, and that, therefore, all the proclamations issued by the 

Federal government up to the time of the British recognition 

declared the contest to be, not a public war but a domestic 

trouble. Therefore, the recognition of the belligerency of the 

Southern States by Great Britain was not justifiable on any 

ground of either necessity or moral right. It was further con- 

tended that by the time of recognition, no neutral commerce 

had been seriously affected by the war, and that the probable 

injury feared by Great Britain in the progress of the naval 

war was not a sound basis for such action.'^ 

The contention over the British recognition of Southern bel- 

ligerency continued until 1869 when President Grant openly 

admitted in his message to Congress that "this nation is its own 

judge when to accord the rights of belligerency, either to a 

people struggling to free themselves from a government they 

believe to be oppressive or to independent nations at war with 

each other".® The Supreme Court of the United States decided 

in the case of Ford v. Surget,® that the contest between 

the United States and the Confederate States was a war from 

the beginning of hostilities, and declared " the gov- 

ernment of the Confederate States, although in no sense a 

government de jure, and never recognized by the United States 

as in all respects de facto, yet was an organized and actual 

government, maintained by military power, throughout the 

limits of the States that adhered to it, except in those portions 

of them protected from its control by the presence of an armed 

force of the United States; and the United States, from mo- 

tives of humanity and expediency, had conceded to the gov- 

*Dip. Cor., 1861, p. 26. 

^ Seward to Adams, Jan. 19, 1861, State Papers, 1862, Vol. II ; and 

also of Jan. 12, 1867, Ibid., Vol. I, 1867. 

• Richardson, Messages, Vol. VII, p. 32. 

• I Otto, 594 If. 

79 

ernment some of the rights and obligations of belligerents/' 

Most of the modem jurists hold the view that tjie recognition 

of Confederate belligerency was justifiable on accotmt of the 

existence of war, of which the blockade proclamation gave evi- 

denced^ 

The French Empire, following the example of Great Britain, 

also recognized the belligerency of the Confedejate States. 

The French recognition did not at first affect the diplomatic 

relations between that country and the United States to any 

great extent, but the attitude taken by the French government 

afterwards led to formal complaints made by the United States. 

Secretary Seward's letters to Mr. Dayton, American Minister 

at Paris, explain the situation. Secretary Seward said in his 

letter of April 24, 1863, "It gives me great pleasure to acknow- 

ledge that, beyond what we deem the original error of France 

in recognizing, unnecessarily, as we think, the insurgents as a 

belligerent, we have every reason to appreciate the just and im- 

partial observance of neutrality which has been practiced in 

the ports and harbors of France by the government of the 

Emperor."" But on the 21st of March 1864, Seward said in 

his complaint against the French government that " 

the decisions of the Emperor's government, like those of other 

maritime powers, by which the insurgents of this country, 

without a port or a court of admiralty, are recognized by 

France as a naval belligerent, are in derogation of the law 

of nations and injurious to the dignity and sovereignty of the 

United States and that they (the United States) 

regard these late proceedings in relation to the Florida and 

Georgia, like those of a similar character which have occurred 

in previous cases, as just subject of complaint 

We claim that we are entitled to have our national vessels 

received in French ports with the same courtesy that we 

ourselves extend to French ships of war, and that all real 

or pretended insurgent vessels ought to be excluded frctfn 

French ports " It is significant to notice that 

by demanding the special privileges granted to American war- 

ships in French ports, Mr. Seward demanded from France 

what France had demanded from the United States during^ 

the war of the French Revolution. 

u 

*• International Law, Hall, sth Ed., pp. 38-39. 

Dip, Cor,, 1863, p. 662. 

80 

II. Continuous Voyage as Applied to Blockade and 

Contraband. 

The English view of continuous voyage as asserted by Sir 

William Scott was applied only to the latter part of the voyage, 

that is after the ship had left the intermediate neutral port 

and was directly headed for the enemy destination. But the 

American courts extended this doctrine beyond the limits of 

the English interpretation. They freely applied the doctrine 

to the case of blockade or contraband, and vessels were cap- 

tured while on their way from neutral port to neutral port, 

and were condemned as carriers of contraband goods or for 

intent to violate the blockade of the Southern ports. "They 

were thus condemned not for an act — for the act done was 

in itself innocent, and no previous act existed with which it 

could be connected so as to form a noxious whole-^but on 

mere suspicion of intention to do an act. Between the grounds 

upon which these (American cases) and the English cases were 

decided there was of course no analogy. The American deci- 

sions have been universally reprobated outside the United 

States, and would probably now find no defenders in their own 

country".^* But it was argued on the part of American jurists 

Ihat as long as there is sufficient evidence to prove, either by 

the ship's papers, or by the admission of the ship's captain, or 

by the local situation of the course of the vessel, the intention 

of the ship, or cargo, or both, it was immaterial what was the 

character of the port from which they sailed or what kind of 

port they proceeded to, provided that their ultimate aim was 

either an enemy port or a blockaded place. 

In the case of the "Bermuda", which was captured on a voy- 

age from England to Nassau, the Supreme Court decided 

" it makes no difference whether the destination to the 

rebel port was ulterior or direct; nor could the question of 

destination be affected by transshipment at Nassau, if trans- 

shipment was intended, for that could not break the continuity 

of transportation of the cargo. The interposition of a neutral 

port between neutral departure and belligerent destinaticm has 

always been a favorite resort of contraband carriers and 

Uockade-runners ; it never avails them when the ultimate des- 

tination is ascertained."^' 

" International Law, Hall, 5th Ed., pp. 66^70. 

''S Wallace 553. 

81 

The "Peterhof " was captured off Galveston while on a voy- 

age from England to Matamoras, a Mexican neutral port. Ac- 

cording to the opinion of Mr. Chief Justice Chase, " a 

considerable portion of the cargo of the Peterhof was of the 

third class (articles used exclusively for peaceful purposes) 

A large portion, perhaps, was of the second class 

(articles that may be used in peace as well as in war), but is 

not proved, as we think, to have been actually destined for bel- 

ligerent use, and can not therefore be treated as contraband. 

Another portion was, in our judgment, of the first class (ar- 

ticles manufactured primarily and ordinarily for military pur- 

poses in time of war), or, if of the second, destined directly 

to the rebel military service".^* At the time of the capture 

of the "Peterhof', Brownsville, then in Confederate terri- 

tory, was in a state of blockade. Opposite to Brownsville, 

across the Rio Grande, was Matamoras, a neutral port. The 

peculiarity of the geographical situation of these ports made 

the English interpretation of continuous voyage utterly inap- 

plicable. As long as the blockade lasted, all neutral ships or 

goods destined ultimately to the blockaded ports, transported 

entirely by sea, were to be condemned as lawful prize, either 

under the British or American doctrine of blockade. But in 

the case of contraband goods going from any neutral port to 

Matamoras, another neutral port, thence to be transported by 

land to Confederate territory, the English doctrine could not be 

applied, because the latter part of the journey could not be 

interfered with because it was on land. Under these circum- 

stances the "Peterhof" was condemned as lawful prize by the 

District Court of New York on a charge of violation of block- 

ade, and on an appeal brought before the Supreme Court of 

the United States, the Chief Justice, in the opinion of the 

Court, held that, " while articles, not contraband, 

might be sent to Matamoras and beyond to the rebel region, 

where the communications were not interrupted by blockade, 

articles of contraband character, destined in fact to a State in 

rebellion, or for the use of the rebel military forces, were liable 

to capture though primarily destined to Matamoras."^* 

The case of the "Springbok" is a very important one and 

has been the subject of much discussion . The "Springbok" left 

"S Wallace, 59- 

Ibid., 59. 

M 

82 

JLondon on December 9, 1862, with a cargo partly of contra- 

band, on a voyage for Nassau, which " was constant- 

ly and notoriously used as a port of call and transshipment by 

persons engaged in systematic violation of blockade and in 

the conveyance of contraband of war".^® When about one 

hundred and fifty miles from Nassau, and therefore on 

the high seas, she was captured by the Federal cruiser "Son- 

oma" on the ground that she intended to run the blockade. 

Both the vessel and the cargo were condemned by the District 

Court of New York. This decree was, however, reversed by 

the Supreme Court of the United States in December 1866, 

so far as the vessel was concerned, because the master declared 

himself ignorant as to what part of his cargo was contraband. 

The Court held that there was not sufficient proof of any hos- 

tile destination of the cargo known to the owners of the vessel, 

and therefore she was released. 

The condemnation of the cargo of the "Springbok" was de- 

creed by Mr. Chief Justice Chase with the assertion that "... 

we do not now refer to the character of the cargo for the 

purposes of determining whether it was liable to condemna- 

tion as contraband, but for the purpose of ascertaining its real 

destination ; for, we repeat, contraband or not, it could not be 

condemned, if really destined for Nassau and not beyond; 

and must be condemned if destined for any rebel port, 

for all rebel ports were under blockade Upon the. 

whole case we cannot doubt that the cargo was originally 

shipped with intent to violate the blockade; that the owners 

of the cargo intended that it should be transshipped at Nassau 

into some vessel more likely to succeed in reaching safely a 

blockaded port than the Springbok; that the voyage from 

London to the blockaded port was, as to cargo, both in law 

and in the intent of the parties, one voyage ; and that the lia- 

bility to condemnation attached to the cargo from the 

time of sailing "^^ 

The British government at once made formal complaint 

which led to a serious dispute between the two powers. The 

cases were finally referred to a Mixed Commission. Mr. 

Wharton justly remarked that, "While the great body of for- 

eign jurists, British as well as continental, protested against 

"5 Wallace, i. 

""Ibid,, 26. 27-28. 

83 

the decision, it is not a little significant that at the hearing 

before the commission the British commissioner united in 

affirming the condemnation . . . "^^ It has to be admitted, how- 

ever, that the case of the ''Springbok" was the most assailable 

and disputable of all the cases that arose under the doctrine 

of continuous voyage at this time. On February 22, 1871, 

Secretary Fish said in his secret instructions to the American 

commissioners in the American-British Joint High Commission 

that " with the exception of one case, that of the 

Springbok", out of one hundred and sixty-seven cases, " . . . . 

the Department of State is not aware of a disposition on the 

part of the British government to dissent from any final ad- 

judiciation of the Supreme Court of the United States in a 

prize case." 

The most important of all these cases, which were more or 

less similar in character, was that of the "Stephen Hart." She 

was captured by the United States ship of war "Supply", off 

the southern coast of Florida, bound ostensibly from London 

to Cardenas in Cuba, with a cargo of munitions of war and 

army supplies. Both the vessel and her cargo were condemned 

as lawful prize. The decision given by the District Court of 

southern New York asserted that " if the guilty inten- 

tion, that the contraband goods should reach a port of the 

enemy existed when such goods left their English ports, that 

guilty intention cannot be obliterated by the innocent intention 

of stopping at a neutral port on the way And the sole 

purpose of stopping at a neutral port must merely be to have 

upon the papers of the vessel an ostensible neutral terminus 

for the voyage This Court holds that, in all such cases, 

the transportation or voyage of the contraband goods is to be 

considered as a unit, from the port of lading to the port of 

delivery in the enemy's country; that if any part of such 

voyage or transportation be unlawful, it is unlawful through- 

out ; and that the vessel and her cargo are subject to capture, 

as well before arriving at the first neutral port at which she 

touches after her departure from England, as on the voyage 

or transportation by sea from such neutral port to the port of 

the enemy There must, therefore, be a decree con- 

demning both vessel and cargo." 

The "Adela", a British steamer, bound from Liverpool and 

*• Wharton, Digest, Vol. Ill, pp. 404-405. 

84 

Bermuda for Nassau, for which latter port she was carrying 

British mail, was captured and condemned for intended breach 

of blockade of the southern coast. She was found near Great 

Abaco Island with no destination sufficiently proved, without 

sufficient documents, with a large portion of her cargo con- 

traband of war, and with many letters addressed to one of the 

blockaded ports, a port for which her first officer "admitted 

that she had intended to run".^® On the ground of the ad- 

mission made by the first officer, the Adela was condemned in 

spite of the denial of the master and other witnesses that 

she had intended to run the blockade. This case also led 

to a serious international dispute, and in consequence of 

this decision, the Minister of State of the Netherlands de- 

clared in his speech in the upper Chamber of the States- 

General, " now is it not the clear course, is 

it not the duty of the Netherlands government, the govern- 

ment of the country which gave birth to Hugo Grotius, to ap- 

proach the United States of North America, in conjunction 

with other maritime powers, for the purpose of prevailing on 

their government to retrace its steps ?" 

In spite of Mr. Hall's sweeping statement that these deci- 

sions " . . . . have been universally reprobated outside the 

United States, and would probably now find no defenders in 

their own country". Earl Russell himself openly admitted in 

his remarks made in the House of Lords on May i8, 1863, 

that the judgments of the United States prize courts did not 

evince any disregard of the principles of international law; 

that the law officers of the Crown after an attentive study 

and consideration of the decisions which had been laid before 

them were of the opinion that " there was no rational 

ground for complaint as to the judgments of the American 

Prize Courts; and that the law of nations in regard to the 

search and seizure of neutral vessels had been fully and com- 

pletely acknowledged by the government of the United States. 

It has been a most profitable business to send vessels 

to break or run the blockade of the southern ports, and carry 

their cargoes into those ports. ... I understand that every 

cargo that runs the blockade and enters Charleston is worth 

a million of dollars, and that the profit of this transaction is 

immense. It is well-known that the trade has attracted a great 

" 6 Wallace, 266. 

8.S 

deal of attention in this country from those who have a keen 

eye to such gains, and that vessels have been sent to Nassau in 

order to break the blockade at Charleston, Wilmington, and 

other places I certainly am not prepared to declare, nor 

is there any ground for declaring that the courts of the United 

States do not faithfully administer the law or that they 

are likely to give decisions founded, not upon the law, but 

upon their own passions and national partialities." 

At any rate it is significant to observe that in later days the 

American doctrine of continuous voyage was adopted by Great 

Britain and Italy on at least one occasion. On the ground that 

a neutral state that has a port adjacent to belligerent territory 

could easily make all the rules of blockade and contraband im- 

practicable, especially where the belligerent state itself has no 

seaport, Italy condemned the goods ostensibly bound for the 

Red Sea littoral, but really for Abyssinia, and Great Britain 

searched vessels bound for a Portugese African port with al- 

leged contraband articles on board, which were supposed to be 

destined for the Transvaal.^® 

III. Analogues of Contraband and the Right of Visit 

AND Search. 

The United States introduced an unprecedentedly liberal rule 

during the Civil War in regard to neutral mail steamers. There 

had been no definite usage established until this time as to the 

carriage of dispatches and other mail matter in neutral ships. 

As early as the time of the war with Mexico, the United States 

exempted British mail steamers going in and out of the port 

of Vera Cruz from the right of visit and search. On October 

31, 1862, Secretary Seward issued instructions to the Secre- 

tary of the Navy, which were at once communicated to the 

ministers of the various foreign states represented at Wash- 

ington, to the effect that " public mails of any f riend- 

*The cases of the "Bundesrath", 1900, and the "Doelwijk", 1896, The 

London Times, Jan. 4, 1900; and State Papers, Vol. LXXXVIII, p. 212, 

and Vol. XCIV, pp. 973 et seq. 

It was formally agreed by the Declaration of London in 1909, that 

[Articles 30-31] absolute contraband is liable to capture if it is shown to 

be destined to territory belonging to or occupied by the enemy, or to 

the armed forces of the enemy. It is immaterial whether the carriage 

of th-e goods is direct or entails either transshipment or transport over 

land. 

86 

ly or neutral power, duly certified and authenticated as such'' 

found on board captured vessels "shall not be searched or 

opened, but be put as speedily as may be convenient on the 

way to their designated destinations".^^ The naval officers 

were directed to deliver all such mail bags unopened to the 

Department of State at Washington or hand them to a naval 

or consular representative of the country to which they be- 

longed, to be opened by him on the understanding that docu- 

ments to which the belligerent government has a right should 

be delivered to it. 

In the case of the "Peterhof" the United States prize court 

at first directed that the mails found on board the ship be 

opened in the presence of the British consul. But on appeal 

from the British authorities to the Secretary of State, the 

United States Attorney at New York was instructed to for- 

ward the entire mail unopened to its destination, although 

there was reason to believe that it contained some letters that 

should have been examined. Secretary Seward stated in his 

letter of April 21, 1863, to Mr. Adams that "I shall, however, 

improve the occasion to submit some views upon the general 

question of the immunities of public mails found on board of 

vessels visited under the belligerent right of search The 

President believes it is not less desirable to Great Britain than 

it is to the United States, and other maritime powers, to arrive 

at some regulation that will at once save the mails of neutrals 

from unnecessary interruption and exposure, and at the same 

time, prevent them from being made use of as auxiliaries to 

unlawful designs of irresponsible people seeking to embroil 

friendly states in the calamities of war." 

Up to the time of the Civil War, the United States had al- 

ways been endeavoring to restrict the denomination of con- 

traband to the narrowest possible limits. But as soon as that 

war broke out, the government issued a most sweeping list 

of contraband articles, including in the list of absolute con- 

traband almost everything that "might be useful" whether es- 

pecially fit for war or not. This list contained for the first 

time, engines, boilers, machinery for boats and locomotives, and 

cars for railways. Even provisions, which the United States 

had always up to this time striven to free from the taint of 

contraband, were also included. 

'^Dip. Cor., 1863, p. 402. 

87 

A serious question arose as to whether or not belligerent 

persons were to be treated as a sort of contraband. Curiously 

enough, the United States, despite the fact that it had always 

combated the English practice of impressing British seamen 

from the vessels of neutral Americans, claimed in the famous 

case of the "Trent' the right of taking enemy persons from 

British neutral ships. The "Trent" was an English mail steam- 

er, carrying on board the Confederate commissioners. Mason 

and Slidell, on their way to London and Paris as diplomatic 

agents of the Confederacy. She sailed from Havana for St 

Thomas on November 7, 1861, under the command of an officer 

of the British navy. While passing through the Bahaitia chan- 

nel, nine miles from the coast of Cuba, and therefore on the 

high seas, the "Trent" was stopped by an American frigate, the 

"San Jacinto", and Mason and Slidell were taken from her by 

force and carried as prisoners of war to Boston, while the ship 

was allowed to continue on her voyage. The restoration of the 

Confederate commissioners was immediately demanded by the 

British government, and at the same time an apology was re- 

quested of the United States for her violation of British neu- 

tral rights. The governments of Austria, France, Italy, Rus- 

sia and Prussia instructed their respective representatives at 

Washington to sustain the British demand. Captain Wilkes, 

the commander of the "San Jacinto", contended that the com- 

missioners were embodied belligerent dispatches, and Secretary 

Seward declared that they were contraband persons. Seward's 

letter to Lord Lyons, December 26, 1861, states that "the ques- 

tion here concerns the mode of procedure in regard, not to the 

vessel that was carrying the contraband . . . but to contraband 

persons." "The belligerent captor has the right to pre- 

vent the contraband officer, soldier, sailor, minister, messen- 

ger, or courier from proceeding in his unlawful voyage, and 

reaching the destined scene of his injurious service." 

Secretary Seward asserted in this same letter that "All writ- 

ers and judges pronounce naval or military persons in the 

service of the enemy contraband. Vattel says that war allows 

us to cut off from an enemy all his resources, and to hinder him 

from sending ministers to solicit assistance. And Sir William 

Scott says that you may stop the ambassador of your enemy 

on his passage. Dispatches are not less clearly contraband, and 

the bearers or couriers who undertake to carry them fall under 

88 

the same condemnation. Sir William Scott, speaking of civil 

magistrates who are arrested and detained as contraband, says : 

'It appears to me on principle to be but reasonable that when 

it is of sufficient importance to the enemy that such persons 

shall be sent out on the public service at the public expense, 

it should afford equal ground for forfeiture against the ves- 

sel that may be let out for a purpose so intimately connected 

with the hostile operations' '' }^ 

The British government strongly protested against this posi- 

tion. Earl Russell held that the persons in question and their 

dispatches were not contraband of war and that the general 

right and duty of a neutral power to maintain its own com- 

munications and friendly relations with both belligerent pow- 

ers could not be disputed. The difference of opinion between 

the two governments furnished the basis for a great deal of 

dispute. Secretary Seward argued that the courts of admiralty 

''have formulas to try only the claims to contraband chattels, 

but none to try claims concerning contraband persons" and 

therefore, "the courts can entertain no proceedings and render 

no judgment in favor of or against the alleged contraband 

I men'V* and Dana confirms this opinion by saying that in case 

the "Trent" were brought into an American prize court. Mason 

and Slidell "could not be condemned or released by the 

court."^* Woolsey gives his opinion substantially in these 

words: (i) that there is no process known to interna- 

tional law by which a nation may extract from a neutral 

ship on the high seas, a hostile ambassador, a traitor, or any 

criminal whatsoever; (2) that if there had been hostile dis- 

patches found on board, the ship might have been captured 

and taken into port for legal adjudication; (3) that the char- 

acter of the vessel conveying mails and passengers from one 

neutral port to another neutral part precludes all possibility 

of guilt; and (4) that "it ill became the United States — a 

nation which had ever insisted strenuously upon neutral rights 

— to take a step more like the former British practice of ex- 

tracting seamen out of neutral vessels upon the high seas, 

than like any modern precedent in the conduct of civilized 

nations, and that too, when she had protested against this 

*" Senate Doc, Vol. IV, 1861-1862, Ex. Doc, No.- 8, p. 7 ff. 

^ Seward to Lord Lyons, December 26th. 

** Dana, Wheaton, p. 650. 

89 

procedure on the part of Great Britain and made it a ground 

for war. As for the rest, this affair of the Trent has been of 

use to the world, by committing Great Britain to the side 

of neutral rights upon the sea."^*^ 

Out of this dispute it was made clear that belligerent diplo- 

matic persons were not to be considered as contraband, their 

conveyance in neutral vessels en route for neutral destinations 

was not an unneutral service, and that, above all, the captor 

had no right to decide for himself whether things or persons 

in question are contraband or not. 

IV. The Alabama Cases. 

During the American Civil War the Confederacy sought to 

create a navy that would seriously harass the merchant marine 

of the United States. As there were no means in the Southern 

ports for the building of war vessels, commissions were placed 

with British ship builders, and as a result numerous war vessels 

were either wholly or partly fitted for service in the ship yards 

of Great Britain. The United States, as a belligerent, naturally 

called upon the British government to prevent its neutrality 

from being violated, by allowing Confederate agents and Brit- 

ish subjects to fit out and arm vessels for the Confederate 

navy. In reply to this demand, Great Britain maintained that 

the commercial freedom of her subjects could not be interfered 

with. As a result of this difference of opinion and of the 

depredations of Confederate vessels built in England, a dispute 

arose which was not finally settled until the Geneva Arbitra- 

tion on the so-called 'Alabama Claims' in 1872. 

In reference to Great Britain, Bernard remarks that "the 

present war had placed this country in a situation very new to 

her, and has forced upon her some sharp but wholesome les- 

sons. She has had to school herself, for the first time, in the 

practice of neutral duties and feel an interest in neutral rights. 

She has had to endure without resistance, though not without 

wincing, the exercise of those rough and galling powers with 

which international law arms" a belligerent, which she herself 

has so often wielded with a heavy hand. English ship cap- 

tains have discovered that they must submit to have their 

vessels stopped and overhauled by foreign cruisers; English 

Woolsey, International Law, 6th Ed., pp. 338-339. 

90 

2S 

merchants and ship owners have seen their property seized 

and carried into a foreign port, there to await the slow and 

questionable justice of a prize court, missing their markets 

and losing their expected profits, with little chance, even should 

the seizure prove to be unfounded, of obtaining any adequate 

compensation. Our chief industry . . . has been famished 

for two whole years by the loss of the food it subsisted on 

20 

Some authors have expressed their regret that Great Britain 

had refused to agree with the American view of exempting 

belligerent property from capture on the high seas, for this 

might have avoided all the disputes growing out of the Ala- 

bama Cases. "Had an agreement been reached," said one of 

the jurists, "as might have been in 1856, this Alabama case 

could never have existed. For had European powers accepted 

at that time the American proposition to declare the exemption 

from capture of belligerent private property on sea, the United 

States would have been severally bound by the declaration, 

and the Southern States could not have dared to ruin its young 

cause so flagrantly as the employment of the Alabama 

against merchant vessels would in that case have been." 

The British government at first attempted to observe their 

Neutrality Act of 1819 with good faith. The order of June 

I, 1861, interdicted all armed vessels and privateers of either 

of the belligerents from entering British ports with their 

prizes,^^ and the instructions of January 31, 1862, show the 

good intention of the British government.^^ 

Soon after the outbreak of the war, the American govern- 

ment proposed to England and France to adopt the arrange- 

ments concerning the privileges of the neutral flag and the 

rules of blockade agreed to by the Declaration of Paris. They 

added by way of suggestion the further proposal that private 

property should be entirely exempt from capture on the high 

seas. The proposal as to the neutral flag and blockade met 

with no opposition, but as to the exemption of private prop- 

^ Bernard, Violations of Neutrality by England, p. 3. 

^Appendix to the Case of Great Britain laid before the Tribunal of 

Arbitration at Geneva iinder the Provisions of the Treaty between 

the United States of America and Her Majesty the Queen of Great 

Britain, Vol. 3, p. 18. 

Papers Relating to the Treaty of Washington, Vol. I, pp. 226-227. 

91 

28 

erty from capture, the British Minister replied as follows: 

"The Ambassador of France came to me yesterday, and in- 

formed me that the Minister of the United States had made 

M. Thouvenel two propositions. The first was that France 

should agree to add to the Declaration of Paris the plan for 

protecting private property on sea from capture in the time 

of war. Mr. Thouvenel wishes to learn the opinion of Her 

Majesty's Government. Her Majesty's Government decidedly 

objects to the first proposition. It seems to them that it 

would reduce the power, in time of war, of all states, having 

a military as well as a commercial marine." But when forced 

to pay the indemnity awarded to the United States by the 

Geneva Arbitration Court for the depredations committed 

on American commerce during the Civil War by Confederate 

ships built and fitted in Great Britain, Great Britain came to 

realize the truth of Franklin's prophetic warning made as 

early as 1783 that "the practice of robbing merchants on the 

high seas, a remnant of ancient piracy, though it may be 

accidentally beneficial to particular persons, is far from profit- 

able to all engaged in it . . ." 

The British ship builders and individual merchants, however, 

found many occasions to avail themselves of illegal profit by 

constructing and fitting out ships of war destined for the Con- 

federate Navy and to cruise against the commerce of the 

United States. The cruisers named by the United States as 

having been constructed or fitted wholly or in part for warlike 

use in Great Britain were: the "Sumter", the "Nashville", 

the "Florida" with her tenders the "Clarence", the "Tacony" 

and the "Archer", the "Alabama" with her tenders the "Tus- 

caloosa", and the "Retribution", the "Georgia", the "Talla- 

hassee", the "Chickamauga" and the "Shenandoah".^® Of 

these the four principal ones are the "Florida", the "Georgia", 

the "Alabama" and the "Shenandoah". The cases of all of 

these ships were included under the general head of the 'Ala- 

bama Claims'. 

It was the Alabama, first known as No. '290', that of all the 

Confederate cruisers did the most damage to American ship- 

ping, and caused so many American vessels to seek the pro- 

tection of the English flag. She was built at the ship yards 

^Papers Relating to the Treaty of Washington, The Case of the 

United States, p. 320. 

92 

of Messrs. Laird at Birkenhead, near Liverpool, as a war 

vessel, and there seemed to be no desire on the part either of 

the agents or the builders to disguise that fact. She was 

launched on the isth of May, 1862, fully provisioned, but 

unarmed. While the vessel was being finally fitted out, Mr. 

Adams wrote to Earl Russell, pointing out the fact that the 

ship known as the '290' was ostensibly being fitted out as a 

vessel of war and was in charge of men who were notoriously 

Confederate agents.^® The Law Officers of the Crown were 

charged to look into the matter at the earliest possible moment. 

This they did, but reported that it did not seem to them that 

there was any cause for apprehension because the ship was 

not armed in any way. But they further added that the cus- 

toms officers at Liverpool would be instructed to keep a close 

watch on the vessel.®^ 

While the British government was discussing at London 

what should be done with the '290', that vessel quietly slipped 

out of the roadstead with a party of ladies and gentlemen on 

board and apparently bound for a trial trip, but instead the 

ship went on down the Mersey, sending the guests back on the 

tug "Hercules". She left Liverpool on the 28th of July and 

arrived at Terceira, one of the Azores on the loth of August. 

There she met the British ships, "Agrippina", and "Bahama", 

which had on board her armament, and was fitted out and com- 

pletely armed.^^ The '290', now known as the "Alabama", 

was then turned over to Captain Semmes and his crew, com- 

posed almost entirely of Englishmen. For nearly two years the 

"Alabama" cruised over the Atlantic, and even as far as the 

Indian Ocean on her destructive career. "The vessel known 

first as the gunboat *No. 290', and now as the Alabama", wrote 

Mr. Adams in a letter to Earl Russell, "is roving over the 

seas capturing, burning, sinking and destroying American ves- 

sels without being lawfully authorized from any source recog- 

nized by international law, and in open defiance of all judicial 

tribunals established by common consent of civilized nations as 

a restraint upon such a piratical mode of warfare".^^ She 

was, however, at last sunk by the United States ship of war, 

Kearsarge," off Cherbourg on June 9, 1864. 

Papers Relating to the Treaty of Washington, Vol. 3, p. 81. 

"Appendix to the British Case, Vol. I, p. 181. 

^Papers Relating to the Treaty of Washington, yo\. I, pp. 150-151. 

"Adams to Earl Russell, Oct. 23, 1863. 

93 

M 

The damage done by the "Alabama" and other Confederate 

cruisers in this category was tremendous and great popular 

excitement was aroused against Great Britain throughout the 

Union. Mr. David Ross, of the English Bar, said in Septem- 

ber, 1867, "During a somewhat prolonged visit to the United 

States in the year 1865, I talked freely and frequently with 

men of all conditions of life in the northern and western 

states, and none of them, so far as I can recollect, had the 

slightest ill-will to England on account of the Trent affair, 

because they seemed to think that England was right in the 

extreme course she adopted ; but I met comparatively few who 

could talk with common patience of the Alabama depredations, 

and I doubt if I met one who would have raised his voice for 

Ijeace if the President of the United States had decided that 

redress must be had by war." Under these circumstances, all 

the accusations charged against Great Britain of a want of 

diligence, *a war in disguise', and *a consistent course of par- 

tiality toward the insurgents', may be more or less of an exag- 

geration, but as a matter of fact, the British authorities failed 

to observe their neutral duties. In spite of the ample evidence 

furnished by Mr. Adams to Earl Russell of the ultimate des- 

tination and use of the iron-clad rams that were under con- 

struction in England for the Confederacy, Earl Russell said in 

a letter to Mr. Adams, that "Her Majesty's Government are 

advised that they can not interfere in any way with these 

vessels".** On October 26th of the same year he wrote again 

to Mr. Adams that "In the meantime I must request you to 

believe that the principle contended for by Her Majesty's 

Government is not that of commissioning, equipping, and man- 

ning vessels in our ports to cruise against either of the belli- 

gerent parties — a principle which was so justly and unequivocal- 

ly condemned by the President of the United States in 1793, as 

recorded by Mr. Jefferson in his letter to Mr. Hammond of 

the 13th of May of that year. But the British government 

must decline to be responsible for the acts of parties who fit 

out a seeming merchant ship, send her to a port or to waters 

far from the jurisdiction of British Courts, and there commis- 

sion, equip, and man her as a vessel of war." 

The United State government, nevertheless, claimed com- 

pensation for the damages done by the Confederate cruisert 

**Earl Russell to Mr. Adams, Sept. i, l%3. 

94 

built in Great Britain, on the ground that Great Britain had 

been derelict in the strict neutral attitude that she should have 

maintained. In spite of all the denials made by Earl Russell 

of England's liability for these damages, the United States per- 

sistently demanded that their claims be recognized, until at 

last they were referred to the Geneva Arbitration of 1871. 

The suggestion that the claims be arbitrated was in the 

first instance made by the United States, but was strongly op- 

posed by Earl Russell. The English government throughout 

had assumed an attitude that apparently precluded all possi- 

bility of arbitration, or of any adjustment. On August 30, 

1865, Earl Russell wrote to Mr. Adams and said: "In your 

letter of October 23, 1863, you were pleased to say that the 

Government of the United States is ready to agree to any 

form of arbitration. Her Majesty's Government have thus 

been led to consider what question could be put to any Sover- 

eign or State to whom this very great power should be assigned. 

It appears to Her Majesty's Government that there are two 

questions by which the claim of compensation could be tested. 

The one is : Have the British Government acted with due dil- 

igence, or, in other words, with good faith and honesty, iii the 

maintenance of the neutrality they proclaimed ? The other is : 

Have the Law Officers of the Crown properly understood the 

Foreign Enlistment Act when they declined in June, 1862, to 

advise the detention and the seizure of the Alabama, and on 

the other occasions when they were asked to detain other ships 

building or fitting in English ports ? It appears to Her Ma- 

jesty's Government that neither of these questions could be 

put to a foreign government with any regard to the dignity and 

character of the British Crown and the British nation. Her 

Majesty's Government are the sole guardians of their own 

honor . . . Her Majesty's Government must therefore 

decline either to make reparation or compensation for the cap- 

tures made by the Alabama, or to refer the question to any 

foreign state. Her Majesty's Government conceive that if they 

were to act otherwise, they would endanger the position of 

neutrals in all future wars . . ."^^ 

But on October 14, 1865, the Earl wrote again to Mr. Adams 

and said, "Her Majesty's Government are ready to consent to 

the appointment of a Commission to which shall be referred all 

~ Dip. Cor., 1865, Part I, p. 545- 

95 

claims arising during the late Civil War, which the two Powers 

shall agree to refer to the Commissioners".^* To this, Mr. 

Adam replied on November 21, 1865, in his correspondence 

with the Earl of Clarendon, "I am directed, therefore, to in- 

form your Lordship that the proposition of Her Majesty's 

Government for the creating of a joint Commission is re- 

spectfully declined."*^ 

The advisability of reopening the subject became, by the 

latter part of 1866, a topic of general discussion in the English 

press, and the Government — Lord Stanley had succeeded Earl 

Russell as Foreign Secretary — was understood to favor an 

amicable settlement of the dispute. The Prime Minister, Earl 

Derby, gave countenance to such a view in a speech at the 

Mansion House.^* The London Times supported the view 

that Earl Russell had rejected Mr. Adams' demands on rather 

narrow grounds, and urged that the claims were "not forgotten 

by the American people", and that they never would be for- 

gotten until they were submitted to "some impartial adjudica- 

tion".*^® On March 6, 1868, most of the members who spoke 

on the Alabama Claims in the House of Commons, including 

Lord Stanley himself, favored the adoption of a conciliatory 

attitude toward the United States.*® 

In June, 1868, President Johnson appointed Mr. Reverdy 

Johnson to succeed Mr. Adams as the United States Minister 

at London, with instructions to seek an amicable arrangement 

of several vexatious questions. Mr. Johnson arrived in Eng- 

land and negotiated for several months with Lord Stanley and 

his successor, Clarendon. At length, on January 14, 1869, the 

Johnson-Clarendon convention providing for the settlement by 

a commission of private claims was signed. A strong opposi- 

tion was raised in the United States against this arrangement 

because it left unsettled the great questions at issue. Charles 

"The Official Correspondence on the Claims of the United States in 

respect to the Alabama, Earl Russell, 1867, p. 165. 

" The Official Correspondence on the Claims of the United States in 

Respect to the Alabama, p. 223. 

"Papers Relating to Foreign Affairs, Accompanying the Annual 

Message of the President to the Second Session of the Fortieth Con- 

gress, Government Printing Office, 1868, Part I, p. 25. 

" The London Times, November 17, 1866, and January 4, 1867. 

"^Ibid., March 7, 1868. 

96 

Sumner was the most active and influential of the agitators.*^ 

The Senate refused to ratify the treaty and the strained rela- 

tions between the two powers remained unaltered. 

President Grant, in his Message to Congress on December 

5, 1870, expressed his regret at the failure of the two gov- 

ernments to come to some understanding on the subject. Early 

in January, 1871, Sir John Rose visited Washington on a con- 

fidential mission, expressing the desire of the British govern- 

ment for better relations between the two countries. On the 

3rd of February, 1871, Secretary Fish wrote to the British 

Minister that the President assented to the proposal to create 

a Joint Commission to arrange for a settlement of the various 

causes of difference between the two Powers. The Joint High 

Commission was consequently organized at Washington on 

February 7, 1871.*^ After many and long deliberations, the com- 

missioners finally agreed to and signed, on the 8th of May^ 

1871, the treaty that became known as the Treaty of Washing- 

ton. By this famous treaty, the Alabama claims were referred 

to a Tribunal of Arbitration to sit at Geneva. This Tribunal 

was to consist of five arbitrators appointed respectively by the 

President of the United States, Her Britannic Majesty, the 

King of Italy, the President of the Swiss Confederation, and 

the Emperor of Brazil. The members thus appointed con- 

stituted the celebrated Court of the Geneva Arbitration. In 

order to guide the procedure of the court, it was provided 

by Article VI of the Treaty of Washington that "in deciding 

the matter submitted to the Arbitrators, they shall be governed 

by the following three rules . . . 

"A neutral government is bound, — 

"First. — To use due diligence to prevent the fitting out, 

arming, or equipping, within its jurisdiction, of any vessel 

which it has reasonable ground to believe is intended to cruise 

or carry on war against a power with which it is at peace ; and 

also to use like diligence to prevent the departure from its 

jurisdiction of any vessel intended to cruise or carry on war 

as above, such vessel having been specially adapted, in whole 

or in part, within such jurisdiction, to warlike use. 

"Secondly. — Not to permit or suffer either belligerent to 

*^ Memoirs and Letters of Charles Sumner, Edward L. Pierce, VoL 

4, p. 312. 

** Papers Relating to the Treaty of Washington, Vol. I, p. 9. 

97 

make use of its ports or waters as the base of naval operations 

against the other, or for the purpose of the renewal or aug- 

mentation of military supplies or arms, or the recruitment of 

men. 

"Thirdly. — To exercise due diligence in its own ports and 

waters, and, as to all persons within its jurisdiction, to prevent 

any violation of the foregoing obligations and duties."** 

The claims laid by the United States before the tribunal for 

consideration were of two kinds : 

(i) Claims for the direct losses entailed by the destruction 

of vessels and their cargoes by insurgent cruisers, and the 

expenditures incurred in the pursuit of the cruisers, and 

(2) The claims for indirect losses or damages growing out 

of the interference with the American merchant marine, the 

increased rates of insurance and the prolongation of the war. 

It is not necessary here to go into detail in every argument 

used by the two countries in support of their claims, but it 

would be interesting to see where the difference of opinion lay 

on the question of what constituted 'due diligence'. The three 

rules of the Treaty of Washington charged the commission 

to determine the validity of the claims of the United States 

by applying the rule of *due diligence' to the conduct of 

Great Britain. Naturally the arguments of both sides were 

largely taken up with definitions of the term, for it was upon 

this point that the success of either side lay. 

Three views or definitions of the term, 'due diligence' may 

be found in the arguments and the decision of the Court in 

the Geneva Arbitration: the views of the United States, of 

Great Britain, and of the Court. In the case of the United 

States we find the position of that country on the question de- 

fined as follows : "The United States understand that the dili- 

gence which is called for by the Rules of the Treaty of Wash- 

ington is a due diligence; that is, a diligence proportioned to 

the magnitude of the subject and to the dignity and strength 

of the Power which is to exercise it — b, diligence which shall, 

by the use of active vigilance, and of all the other means in 

the power of the neutral, through all stages of the transaction, 

prevent its soil from being violated ; a diligence that shall in 

like manner deter designing men from committing acts of war 

upon the soil of the neutral against its will, and thus possibly 

** The Treaty of Washington, Article VI. 

98 

dragging it into a war which it would avoid ; a diligence which 

prompts the neutral to the most energetic measures to discover 

any purpose of doing the acts forbidden by its good faith as 

a neutral, and imposes upon it the obligation, when it receives 

the knowledge of an intention to commit such acts, to use all 

the means within its power to prevent it. 

"No diligence short of this would be 'due' ; that is, commen- 

surate with the emergency, or with the magnitude of the results 

of negligence".** 

Great Britain, on the other hand did not place as strict an 

interpretation on the term, 'due diligence', as did the United 

States. "Due diligence," says the British Case, "on the part 

of a sovereign government signifies that measure of care 

which the government is under an international obligation to 

use for a given purpose. This measure, where it has not 

been defined by international usage or agreement, is to be 

deduced from the nature of the obligation itself, and from 

those considerations of justice, equity, and general expediency 

on which the law of nations is founded." The definition is 

limited in more concise words a little later in the Case. "It 

would commonly, however, be unreasonable and impracticable 

to require that it should exceed that which the governments of 

civilized states are accustomed to employ in matters of their 

own security or that of their own citizens".*^ From these 

two quotations from the Case of Great Britain, it can be gath- 

ered that, according to the English view, the responsibility 

of a neutral for acts done in violation of its neutrality, and 

harmful to one of the belligerents, is limited by the require- 

ments of its municipal law. The United States did not agree 

with this interpretation of 'due diligence', and did not con- 

sider that municipal law marked the limit of a nation's respon- 

sibility. "The obligation of a neutral to prevent the viola- 

tion of the neutrality of its soil is independent of all in- 

terior or local law. The municipal law may and ought to 

recognize that obligation ; but it can neither create nor destroy 

it, for it is an obligation resulting directly from International 

Law, which forbids the use of neutral territory for hostile 

purpose. 

"The local law, indeed, may justly be regarded as evidence, 

as far as it goes, of the nation's estimate of its international 

^Papers Relating to the Treaty of Washington, Vol. I, p. 67. 

"^Ihid,, pp. 237-238. 

99 

duties; but it is not to be taken as the limit of those obliga- 

tions in the eye of the law of nations."** 

The opinion of the Court on this question was very general 

in its terms, and in no way adequately defined it. "... 

*due diligence' . . . ought to be exercised by neutral govern- 

ments in exact proportion to the risks to which either of the 

belligerents may be exposed . . . "*^ However, the Court 

supported the United States in its claim that municipal law 

should not be the measure of international obligations, in these 

words, ". . . the government of Her Britannic Majesty 

cannot justify itself for a failure in due diligence on a plea of 

insufficiency of the legal means of action which it possessed."*^ 

Article VI of the Treaty of Washington, besides giving 

the three rules of action to guide the Arbitration Court in its 

award, invited other maritime powers to accede to the prin- 

ciple of 'due diligence', but no powers availed themselves 

of the opportunity, for the simple reason that no adequate or 

strict interpretation of the term had been evolved by the Court. 

However, the discussions had their effect on international law, 

generally in the practice of nations from that time to the 

present, and in particular in the XHI Convention of the Sec- 

ond Hague Conference where it was held that "A neutral 

government is bound to employ the means at its disposal to 

prevent the fitting out or arming of any vessel within its juris- 

diction which it has reason to believe is intended to cruise, or 

engage in hostile operations, against a power with which that 

government is at peace. It is also bound to display the same vigi- 

lance to prevent the departure from its jurisdiction of any 

vessel intended to cruise, or engage in hostile operations, which 

has been adapted, in whole or in part, within the said jurisdic- 

tion to warlike use."*® 

The Court awarded the United States a lump sum of 

$i5>SOO,ooo damages for the direct losses, but the claims for 

damages due to indirect losses were thrown out on the ground 

that they were confused with the general and necessary costs 

of the war itself, irrespective of the depredations of the Con- 

federate cruisers.**® 

46 

47 

48 

Papers Relating to the Treaty of Washington, Vol. I, p. 47. 

Ibid., p. 50. 

Ibid., p. 51. 

*• Second Hague, XIII Convention, Art. 8. 

^Papers Relating to the Treaty of Washington, Vol. IV, p. 53- 

100 

As a result of the controversy leading up to the final estab- 

lishment of the Geneva Arbitration Court by the Treaty of 

Washington, the British Foreign Enlistment Act of 1819 was 

amended. A royal commission was appointed in January 

1867 to investigate the conditions of the existing laws available 

for the enforcement of British neutrality and to see if there 

was any need for a better provision than that existing. As a 

result of this action, the Commissioners drew up an act which 

was adopted as the Foreign Enlistment Act of 1870. This sta- 

tute furnished preventive measures against further violations 

of neutral duties on the part of British subjects or of any per- 

son within the jurisdiction of the laws of Great Britain, and 

laid severe restrictions upon British ship builders. In the 

main, this act followed the American Neutrality Act of 1818 

more closely than the former had done. The sense of neutral 

obligations became stricter and the freedom of neutral individ- 

uals became more restricted. The offence of illegal enlistment 

was prohibited under heavy penalty of fine and imprisonment, 

including even a master or owner of a ship, who knowingly 

ships or engages to ship an illegally enlisted person. The 

act prohibited any hostile expedition from leaving the waters 

of Great Britain, and provided for the prevention of the prepa- 

ration of such an expedition, and penalized any person who 

should prepare or fit out, or assist in preparing or fitting out, 

or who took part in any such illegal expedition. The act 

further prohibited any augmentation of warlike forces and 

provided punishment for any person who, by the addition of 

guns or of any warlike equipment, was knowingly concerned in 

such augmentation. Most significant of all was the prohibition 

of illegal ship building. The act prohibited any person, with- 

out license from Her Majesty, to build, or agree to build, to 

issue or deliver a commission to, to equip, to dispatch, or allow 

to be dispatched, any ship with the intent or knowledge of the 

fact that the same would be employed in the military or naval 

service of any foreign state with which Great Britain was at 

peace. In case a person should build or equip a vessel for a 

belligerent power in pursuance of a contract made before the 

outbreak of the war, he was required to give such security as 

was demanded by the government and to allow any measures 

for the prevention of the departure of the ship from British 

waters that the government might see fit to impose, and more- 

lOI 

over the ship could not be dispatched or sent out without 

license from Her Majesty's government, until the end of the 

war. This provision was decidedly more satisfactory than the 

precautions taken in the former act, for in place of leaving the 

question of the legality of equipping, building or sending out 

a ship to which suspicion was attached, to the ship builder, 

it was provided that the government authorities were to take 

all the responsibility of searching or detaining such a vessel. 

This act went beyond anything that was demanded by the 

United States before the Geneva Tribunal, and it was acknowl- 

edged even in countries other than England that the act was 

in advance of the requirements of international law. The 

conduct of a nation in regard to keeping its neutrality intact 

might safely be left to its municipal standard, where such an 

act as this exists, and in all probability if this had been the 

standard in England at the time of the Civil War and the 

law had been strictly enforced, there never would have been 

occasion to bring England before the bar of international jus- 

tice in the Geneva Arbitration Court. Many authors seem 

rather inclined to agree with Walker, who concluded his elab- 

orate discussion on this subject by stating that "if administered 

with resolution by British ministers, and with good faith and 

reasonable diligence by British subordinate officials, they will 

in any event preserve Great Britain from the condemnation 

of another Geneva Tribunal, and at least, they evince the real 

desire of the Island Kingdom to equip herself for the perform- 

ance of a great international duty."°* 

•^ Walker, The Science of International Law, p. 502. 

102 

=========

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- 

103 

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 

104 

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 

105 

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 

106 

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,. 

107 

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 

108 

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 

109 

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 

no 

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. 

Ill 

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