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 The state of war

be, for them, as if it did not exist.

then existing. . . . furnishes no legitimate right to interrupt either the agriculture of the United States, or the peaceable exchange of its produce with all nations".57

D. Limitations of Neutral Commerce

Contraband of War.-The continental jurists generally advocated 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, recognizing 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 otherwise, trading or returning from trade with any of the American rebellious colonies" to be lawful prize. 58 By the French treaty of 1778, the United States limited the denomination of contraband to great guns, bombs, &c., &c., and all other warlike materials, and it was definitely mentioned that all provisions 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 carrying it. It was agreed that "to prevent all the difficulties and misunderstandings that usually arise respecting the mer

chandise heretofore called contraband, such as arms, ammunitions, 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". 59

61

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".60 When M. Genet's movement was at its height, Mr. Hammond complained of the sale of arms and military accoutrements made by American citizens to a French agent at New York. In reply to these complaints, Jefferson stated that such sale could not be condemned as a violation of neutral duties.62 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 diplomatic 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.64

Blockade.-Most of the treaty stipulations up to this time were surprisingly silent as to the question of blockade. The

61

Randolph, Correspondence of Thos. Jefferson, Mr. Hammond to Jefferson, May 8, 1793.

62

63

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

Randolph, Correspondence of Jefferson, Vol. III, p. 291, Jefferson to Hammond, May 15, 1793.

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

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 England based her right upon her force,65 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".66 At one time she made a distinction 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 distinction 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

66

'Lampredi's Del Commercio dei Popoli Neutrali in tempo di Guerra, was published in 1788.

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

The exemption from visit and search of neutral merchantmen 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 commander of the convoy should be deemed sufficient to protect from visit and search.67

"Treaties agreeing upon convoy are:-that of 1782 between the United States and the United Provinces, Martens, Recueil, Vol. III, p. 437; that of 1783 between the United States and Sweden, Vol. III, p. 574; that of 1785 between the United States and Prussia, Vol. IV, p. 43; that of 1782 between Denmark and Russia, Vol. III, 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.

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 maintained 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 returned. 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 international 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 Prussia 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 belonging 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

1 Martens, Recueil, Vol. V, p. 600.