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
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instance, it became universally understood that a premature
recognition of the independence of a revolted colony by a neu-
tral country justified the mother-country in declaring war
against the neutral.
Since the successful establishment of the American Republic,
the question of the recognition of independence and of bel-
ligerency has become the subject of the most lively discussions
between nations. More or less inspired by the American
Revolution, many of the European colonies in the Western
Hemisphere, especially those of Spain and Portugal, revolted
from the mother-country and demanded from neutral powers
the recognition of their political existence. The general rules
of such recognition as understood at the present time, were
largely established through the influence of the United States
in its relations with the European and South American revolu-
tionary movements. The wise discretion and the judicious
statements of the American statesmen shown in the diplomatic
correspondence of the time set forth a correct example which
the nations of the world follow.
During the American Civil War, the British recognition of
the belligerency of the Confederate States aroused tremendous
excitement and feeling against Great Britain in the United
States. But the American government acquiesced in the Brit-
ish interpretation of the recognition, thus acknowledging that
it was not premature. Out of this dispute it was made clear
that such a recognition is justifiable on the following condi-
tions: when neutral commerce is affected by the contest, as
the British trade was by the Civil War ; and when war actually
exists, as it was manifested by Lincoln's blockade procla-
mation.
The celebrated Genet affair settled a most important ques-
tion in the history of neutrality. The principle of the inviola-
bility of neutral territory was first proclaimed by President
Washington in 1793. In order to maintain the neutrality
of the United States during the progress of the war between
England and France, Washington warned the citizens of the
United States, in his famous Neutrality Proclamation, to re-
frain from any warlike participation in the contest. This
Proclamation marked also the inauguration of the new prin-
ciple that a neutral state has a positive duty to prevent its citi-
zens from any hostile action in the service of a foreign state
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against another with which the neutral country is at peace.
In order to fulfill the neutral duties set forth in the procla-
mation and to meet the difficulties that stood in the way of
the execution of the orders by the government authorities,
Congress passed the first Foreign Enlistment Act of 1794, pro-
hibiting any person from performing unneutral services, within
the jurisdiction of the United States, against any state with
which the United States was at peace.
During the revolutionary uprisings in South America, the
government of the United States found the first Foreign En-
listment Act inadequate as a means of procedure against the
expeditions that were being fitted out daily in the ports of the
United States to help the revolting colonies in their struggles
for independence, and as a result the second Act was passed in
1818. By this Act, the President of the United States was
authorized to use the land and naval forces to prevent any
illegal expedition and the District Courts were empowered
to detain any vessel ready to sail unless a bond of security was
furnished with the promise that the vessel should not be em-
ployed contrary to the terms of the law. This Act became the
basis for the legislation of many European states in later
years, the act of 1819 in England being the most prominent.
Under the difficulties of maintaining its neutrality during the
revolutionary uprisings in South America, the British govern-
ment closely followed the American Act of 1818, excepting the
requirement of security to be furnished by the vessel about
to depart. This part of the act was later adopted by Great
Britain in her Foreign Enlistment Act of 1871, after there
had been ample opportunity furnished during the American
Civil War to prove the necessity of the requirement. The fact
that the British government carefully followed the American
neutrality acts could never be better shown than by the well
known statement of Mr. Canning : "If I wished for a guide in
the system of neutrality, I should take that laid down by
America in the days of the Presidency of Washington and the
Secretaryship of Jefferson . . ."
Had the Alabama dispute been left permanently unsettled,
the action of England would have furnished an unfortunate
precedent for neutral states in future wars. The British
government represented by Earl Russell, endeavored to apply
to the expeditions of the "Alabama" and the other Confederate
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ships the principle of individual contraband trade, and there-
fore had repeatedly asserted that "Her Majesty's Government
can not in any way interfere with these vessels." Further-
more, the Earl refused to submit these claims to a court of
arbitration that had been proposed by the United States. Treat-
ing them as hostile expeditions, and not as contraband trade,
the United States insisted upon claiming that it was a neutral
duty incumbent upon the British government to have kept the
ships from leaving English waters, and as it failed in this duty^
the British government must compensate the United States
for the damage done to American commerce. These claims
were never given up until the British government at last con-
sented to submit them to a court of arbitration at Geneva, the
final award of which compelled Great Britain to pay a heavy
indemnity for the direct damages sustained by the citizens of
the United States. By this Arbitration it was decided that the
British government failed to use due diligence in allowing the
Alabama and the other vessels to depart from British jurisdic-
tion, and also by admitting them afterwards into its various
colonial ports as public vessels of the Confederate States. Since
the settlement of this dispute no neutral state would make the
mistake of treating as contraband trade hostile expeditions
fitted out within its own jurisdiction to serve against a nation
with which it was at peace.
At the time of the Revolution the United States followed the
practice of Great Britain in regard to the treatment of neutral
commerce. Enemy ships and enemy goods were condemned,
and free ships and free goods were allowed to go free. But
the United States government soon gave up this practice and
in 1778 the principle of free ship, free goods, was adopted
in a treaty with France. The French government, following
the provisions of the treaty with the United States, in spite of
its former practice of hostile infection, issued an ordinance
exempting from seizure all neutral ships bound to or from
enemy ports. But on account of the continued severity of the
British rule, this ordinance was soon afterward revoked by the
F nch government.
.ice the United States began to mitigate the severity of
the English treatment of neutral trade, it never advocated the
principles of the Consolato del Mare. Its chief endeavor was
to establish permanently the principle of free ship, free goods,.
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
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these principles in connection with two others, in the celebrated
Declaration of Paris. The articles in addition to those pro-
posed by the United States were : ( i ) that declaring that block-
ade to be binding must be effective, and (2) that doing away
with the practice of privateering. Both of these had been
advocated by the United States for some years, especially
that against privateering, which had formed a part of Frank-
lin's negotiations with Great Britain in 1783. The evil of the
paper blockade had always been condemned by the United
States, especially during and since the stormy days of the Na-
poleonic Wars. Although the powers at Paris refused to adopt
the Marcy Amendment, and the United States consequently de-
clined to become a party to the Declaration, the direct influence
of the United States upon that Declaration was, indeed, inesti-
mable.
From the early days of its history the United States had
earnestly endeavored to restrict the list of contraband articles
to the narrowest possible limit, in opposition to the English ten-
dency of expanding it. Franklin went as far as to contend
that the rule of confiscating contraband goods as a jpunishment
for carrying them was too severe, and that, therefore, the de-
tention of such goods should be substituted for this rule. The
famous assertion of Jefferson that "our citizens have always
been free to make, vend, and export arms" has ever since been
accepted as the established rule ; that is, that a neutral govern-
ment is not required to interfere with individual trade in con-
traband goods so long as the goods are a part of a bona fide
commercial transaction.
The British condemnation of provisions as contraband was
strongly protested by the United States. The compensation
agreed upon in the Jay treaty to be paid by the British govern-
ment for the illegal capture of American vessels and cargoes,
was mainly the result of the controversy concerning provisions.
The very important principle that neutral mail steamers be
exempt from seizure was introduced by the United States dur-
ing the Civil War. Secretary Seward's instructions that public
mails of any friendly or neutral power should be delivered
unopened and unsearched to the proper neutral authorities
were communicated to all the foreign powers and the rule
gradually became universal.
The liberal tendency of the United States toward contraband
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articles was totally changed during the Civil War. The list
of contraband articles published by the Federal government in-
cluded almost everything that might be useful in war. Further-
more, in the case of the Trent, the Federal government at
first advocated Captain Wilkes' principle of treating as ana-
logues of contraband the belligerent diplomatic persons found
on neutral vessels bound for a neutral port. From the dis-
cussion that arose on this incident, however, it was clearly
established that such persons are not to be treated as con-
traband and that a belligerent captor should not forcibly extract
such persons from a neutral vessel.
It has been mentioned above that the practice of paper block-
ade was always condemned by the United States. Napoleon's
'continental system' caused much damage to American mer-
chants and shipping, and as a result of it the French Chambers
appropriated $5,00Ov00O, after much delay, to the United States
as indemnity for the damage done. The European powers
realized the evil of such blockades and formally declared at
Paris in 1856 that blockades in order to be binding must be
effective.
The British government always denied the exemption from
search of a merchant vessel sailing under the convoy of either
a belligerent or a neutral war ship. The United States also
condemned merchant vessels sailing under a belligerent convoy,
but always contended that a neutral merchant vessel under the
convoy of a ship of war of its own state must be exempt from
the belligerent right of visit and search. This immunity
of ships under neutral convoy was provided for in many of the
treaties between the United States and other powers. In 1801,
Great Britain also admitted the American usage by joining the
Maritime Convention of St. Petersburg, which urged this prin-
ciple.
According to the British doctrine of continuous voyage,
neutral vessels bound for an enemy port from an enemy or
enemy colonial port, but stopping and breaking the voyage at
some intermediate neutral port for the purpose of getting a
set of papers showing a colourable importation, were con-
demned when captured on their way from the intermediate
neutral port to the ultimate hostile destination. But the United
States went so far, in the Civil War, as to condemn vessels for
contraband trading and attempt to break blockade even on the
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.
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