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N 



■^.J-. ' 't 



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Neutrality As Influenced by 
the United States 



t 



( 



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 



i 



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 inde- 
pendence). 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 Procla- 
mation 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. 



vu 



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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