Russia and that a just definition of these rights would promote their own harmony and might be useful in promoting corresponding stipulations by other parties.

During the same month Monroe sent an instruction to Minister Adams in Great Britain, in which he stated that it was then desirable to arrange every question relating to neutral rights, particularly blockade, contraband of war, the trade with enemy colonies and between them and the parent country, and the trade from one enemy port to another. For the views of the American Government respecting these rights Adams was referred particularly to the instructions of April, 1813, to the peace commissioners.

Monroe considered it equally "desirable to stipulate with the British government, that free ships shall make free goods." However, the importance of this rule to us was much diminished by our growth as a maritime power and the capacity and practice of American merchants to become owners of the merchandise carried in their ships. He said it was nevertheless still important to the United States, in common with all neutral nations, as it would prevent vexatious seizures by belligerent cruisers and unjust condemnation by their tribunals.

THE CASE OF "THE ATALANTA "

The last Court decision here considered, relating to the War of 1812, was the case of The Atalanta, decided by the Supreme Court in March, 1818.2 In this case Chief Justice Marshall delivered the opinion that it was a principle of the law of nations that the goods of a friend were safe in the bottom of an enemy, that although the law probably would be changed, "so long as the principle shall be acknowledged, this court must reject constructions which render it totally inoperative.”

In this same case Justice Johnson, elaborating on the general subject of commerce in war, expressed the opinion that naval warfare as sanctioned by the practice of the world, was "the disgrace of modern civilization." The good sense of mankind had lessened the horrors of war on land and an analogous reformation should take place on the ocean. He considered that there had never been a more favorable time for effecting this desirable change and that there was a power organized on the continent of Europe that might command the gratitude and veneration of posterity by determining on this reformation.

2

1

Document 66, p. 295.

Document 67, p. 297.

CHAPTER V

THE LATIN AMERICAN TREATY SYSTEM

TREATY OF 1819 WITH SPAIN

In treaties with Latin American states, the United States incorporated an idea on neutral commerce which first appeared in the treaty of 1819 with Spain. There was included in article 12 of that treaty a statement that the articles of the treaty of 1795 relating to neutral commerce were confirmed, with the following exception : In respect to the fifteenth article which stated that free ships should make free goods, the parties agreed that this should be so understood with respect to those powers who recognized this principle; "but if either of the two Contracting Parties shall be at War with a Third Party, and the other Neutral, the Flag of the Neutral shall cover the property of Enemies, whose Government acknowledge this principle, and not of others." 1

INSTRUCTIONS FOR THE FIRST TREATY

On May 27, 1823, Secretary of State Adams gave instructions for the treaty with Colombia, the first concluded with a Latin American state. In a letter to Minister Anderson he discussed the status of enemy goods in neutral ships and the modification of the principle of free ships, free goods, which had been made in the treaty with Spain. He stated that by the general usage of nations, independent of treaty stipulations, enemy goods in neutral ships were liable to capture. It was not possible to justify this rule upon any sound principle of the law of nature, for by that law the belligerent had no right to pursue or attack his enemy within the jurisdiction of a neutral party. War gave the belligerent the right to pursue his enemy on the high seas, but not into the special jurisdiction exercised by a neutral nation over its own ships. If the belligerent had the right to take the property of his enemy on the sea, the neutral had a right to carry and to protect the property of his friend. As the belligerent was armed and the neutral was defenseless, it had grown into usage that the belligerent should take enemy property. Adams considered it evident, however, that this usage had no foun1 Document 68, p. 298.

2 Document 69, 299.

dation in natural right but had arisen merely because of force. He thought no neutral nation was bound to submit to the usage for it had none of the properties that could give it the sanction. of obligatory law; it was not reasonable, it was not conformable to the law of nature, and it was not uninterrupted. The neutral nation, however, could yield at one time to the usage without sacrificing her right to vindicate by force the security of her flag at another time. The belligerent nation, although disposed to admit of the principle of free ships, free goods, could justly refuse the benefit of the principle unless admitted also by her enemy, for the protection of her property by the same neutral flag.

This principle, recommended by every humane and liberal consideration as a rule of universal application, could be safely recognized only to the extent recognized in the treaty with Spain, because the nation who would enjoy the benefit of it as a neutral must also accept it as a belligerent. Otherwise the "liberal principle of itself is turned to the advantage of the Belligerent which rejects it, and the mild spirit of Peace is made subservient to the unfeeling rapacities of War." In negotiating the treaty with Colombia, Anderson was therefore to press for the modification of the principle of free ships making free goods that had been included in the treaty with Spain. To that extent the United States would "willingly assent to it, with every other Nation."

TREATY OF 1824 WITH COLOMBIA

1

The treaty with Colombia was signed October 3, 1824, and contained provisions relating to neutral commerce which had been agreed to by Minister Anderson with instructions on no other point than the one above mentioned. He had worked out the other provisions on the subject by consulting earlier American treaties and Executive pronouncements. In accordance with the instruction of May 27, it was provided in article 12 that free ships should also give freedom to goods, with the exception of contraband, and the stipulation should be understood as applying to those powers only who recognized the principle. In article 13 it was agreed that in the case where the neutral flag should protect the property of the enemy of the other by virtue of the above stipulation, it should always be understood that the neutral property found on board such enemy vessels should be held and considered enemy property, and as such should be liable to detention and confiscation. This same article contained the following statement not previously inserted in an American treaty: "On the contrary, if the flag of the neutral does not protect the enemy's property, in that case the goods and mer1Document 75, p. 321.

chandizes of the neutral embarked in such enemy's ships, shall be free". Article 12 provided that when one party was a belligerent and the other a neutral the nationals of the neutral could trade with enemies of the belligerent from enemy ports to neutral ports and also from port to port of the enemy. Article 14 contained a contraband list limited to arms, munitions of war, and horses. Saltpeter and sulphur, which had been considered contraband in many American treaties, were omitted from this list. Although no list of goods never to be considered contraband was included it was expressly provided in the following article that all other merchandise and things not comprehended in the articles of contraband explicitly enumerated should be considered subjects of free and lawful commerce. Article 15 defined a besieged or blockaded port as one "actually attacked by a belligerent force capable of preventing the entry of the Neutral ”.

OTHER LATIN AMERICAN TREATIES

The principles of this treaty of 1824 relating to neutral commerce were followed in all the commercial treaties made with Latin American countries up to the year 1850. Although the provisions regarding these principles vary in order and in terminology, there is no essential difference. The countries with which the treaties were concluded and the dates of conclusion were: Central America, 1825; Brazil, 1828; Mexico, 1831; Chile, 1832; Peru-Bolivia, 1836; Venezuela, 1836; Ecuador, 1839; Colombia, 1846; Guatemala, 1849; and Salvador, 1850.

Secretary of State Clay gave some reasons for American adherence to these principles in an instruction of April 15, 1828,1 to the Chargé in Peru. He observed that, considering the present state and probable future extent of the naval power of the United States, the opinion entertained by some was not without plausibility, that our interest was adverse to those liberal maritime principles for which we had ever contended. That opinion, he thought, would be well founded if we were likely to be frequently involved in maritime wars, but our prosperity was so evidently connected with the preservation of peace that it was to be hoped we would but rarely be involved in war. Whatever might really be the pecuniary interest of belligerent maritime powers, Clay felt there could be no doubt that the general cause of humanity and civilization would be promoted by the adoption of those maritime principles which the United States had so perseveringly endeavored to establish. The Chargé was therefore to propose the articles relating to neutral rights which were included in the treaty with Central America and to press for them as long as there was any reasonable prospect of their being agreed to.

CLAY ON BLOCKADE

In an instruction of January 10, 1829,1 to the Chargé in Peru, Clay considered the subject of blockade. He stated that "All paper blockades, all blockades unattended by the presence of a force competent to maintain them, are illegal, and cannot be respected." If the blockade of the whole coast of Colombia on the Pacific, declared by the Republic of Peru, was still insisted upon, the Chargé was to remonstrate against it and inform the Government of Peru that the United States could not consent to respect any blockade where the port or harbor blockaded was not actually attacked by a belligerent force capable of preventing the entry of a neutral.

1Document 83, p. 335.