Gambar halaman
PDF
ePub

66

He stated that previous to the war which grew out of the American Revolution, the respective rights of neutrals and belligerants had been settled and clearly defined by the Conventional law of Europe, to which all the maritime powers had given their sanction." The few practical infractions of the principles thus recognized were disavowed upon the return of peace by new stipulations which again acknowledged the existence of the rights of neutrals as set down in the maritime code. In addition to the recognition of these rights by the European powers, one of the first acts of the United States as a nation was "their unequivocal sanction of the principles upon which they are founded," as declared in the treaty of 1778 with France. These principles were that free ships gave freedom to goods, except contraband, which was clearly defined, and that neutrals might freely sail to and between enemy ports except such as were blockaded. The principles thus became established by "universal consent."

Van Buren stated that it was expected that the belligerents would be governed by them in the European war which broke out about that time. Great Britain soon betrayed a disposition to deviate from them in some of the most material points, and the neutral governments became alarmed at the danger of this threat to their maritime rights. The Russian declaration of February 28, 1780, followed. It received from France and Spain the most cordial and unequivocal approbation as being founded upon the maxims of public law which had been their rule of conduct. Great Britain did not directly approve or condemn those maxims but promised that Russian rights would be respected agreeably to existing treaties. The declaration was also communicated to the other European powers and resulted in the accession, by treaties or solemn declarations, of Denmark, Sweden, Prussia, Holland, Austria, Portugal, and the Two Sicilies to the principles asserted by Russia. The treaty of 1783 between France and Great Britain renewed the treaty of 1713 in which they had given the most solemn sanction to these principles. They were "thus again proclaimed by the most deliberate acts both of belligerants and neutrals, as forming the basis of the universal code of maritime legislation among the Naval Powers of the world.”

According to Van Buren, "such may be said to have been the established Law of Nations" at the time the independence of the United States was recognized. These principles, which had been sanctioned by the United States in the treaty of 1778 with France, were confirmed in treaties of 1783 with Sweden and 1785 with Prussia, and continued uncontroverted by other nations until 1793. The maxims then advanced by Great Britain in instructions to naval commanders and in orders in council, being in direct contravention

of the principles of the armed neutrality and her own treaty stipulations, compelled the neutral European powers to unite again for the protection of their rights. The result was a new league of armed neutrality and a reassertion of the principles of the declaration of 1780.

The United States, except in the treaty of 1794 with Great Britain by which some British pretensions were so far waived as to be reserved for future discussion, steadily supported the "common rights of nations." Whatever might have been the motives which induced the United States to agree in Jay's treaty "that some of the principles of maritime rights theretofore universally recognized, were still susceptible of further discussion, the fact of their not having been actually abandoned, but merely suspended, would be sufficient proof of their intention never to consent to an actual waiver of them, even if their subsequent treaties," and particularly the one of 1800 with France, "did not furnish conclusive evidence of their settled policy in this respect."

Van Buren stated that during the wars which broke out soon after the peace of Amiens the rights of neutrals were completely prostrated under the retaliatory and lawless decrees and orders in council of France and England. In this war the United States supported single-handed the maritime rights of neutrals and "repeated and earnest representations against the most flagrant violations of the Public Law, stand, under the eyes of all the nations of Europe, a monument of their unwavering attachment to the principles of justice upon which those rights were erected." Treaties with several of these nations concluded after the return of peace attest at once to the sincerity of the United States and its perseverance in the pursuit of that desirable object.

Secretary Van Buren mentioned that the project of a maritimerights convention sent Minister Middleton in 1823 for transmission to the Russian Government included a clause exempting private merchant vessels and their cargoes from capture in time of war. He considered this an innovation upon the maxims of maritime legislation as recognized by the conventional law of Europe prior to the war of the American Revolution, and stated that it was believed to be the first instance "of a formal proposition to admit it in the Code of Public Law." The Russian Government had received this proposition for abolishing private war upon the sea in the kindest spirit and had replied that if the other maritime powers ever manifested a disposition to adopt it, the Emperor would be ready to order the principles it involved to be made the subject of a discussion. "The novel character of this proposition; the very important bearings its adoption must have upon the interests, perhaps on the safety,

of the United States; the deep question of policy it involves, and the very doubtful expediency of restricting our means of marine warfare to our young navy alone, are considerations which would make the President pause before committing this country upon a subject of so deep importance to its security." Convinced by Russia's answer to the proposition that the time had not yet arrived when any definite result could be expected from its renewal, the President "thought it expedient to leave it out of view for the present, and to confine the negotiation within the limits traced out by the acknowledged principles of the neutral leagues of 1780, and 1800."

THE NEW TREATY PROJECT

A project embracing the above principles accompanied Van Buren's instruction of June 18, 1830. It included an unnumbered declaratory article briefly setting forth the principles defined in greater detail in the articles which followed. Article 1 stated that, the parties having mutually agreed and declared that only in cases of contraband and blockade could the rights of neutrals be affected by the acts of belligerents, free ships should give freedom to goods with the exception of contraband. It was further provided, however, that the stipulation declaring that the flag should cover the property should be understood as applying to those powers only who recognized the principle.

Article 2 provided that in case either of the powers should be engaged in war with a third power, the free commercial intercourse of the neutral party with the belligerents should in no manner whatever be interrupted except in the case of contraband goods and in the case of blockaded ports. Van Buren said that this statement was "likewise modeled upon the stipulations on the same subject in our diplomatic code," and that the principle of free trade of neutrals with all ports not blockaded, which had been "invariably recognised by all maritime powers" was by this article carried to the fullest extent.

Article 3 of the project contained a contraband list limited to arms, munitions, and horses, which was almost identical with the list in the treaty of 1824 with Colombia. This article also included a statement that under the denomination of contraband articles naval stores should not be included, nor any materials of any description used in the construction or equipment of ships and vessels, and that, generally, no goods whatever should be deemed contraband except those specifically enumerated.

Article 5 was substantially the same as article 13 of the treaty with Colombia in declaring that when free ships should make free goods it was to be understood that enemy ships should make enemy

goods, and in further declaring that if the neutral flag did not protect enemy property, neutral goods in enemy ships should be free. Article 8 stated that such places only should be considered blockaded as should be "actually surrounded or invested by naval forces capable of preventing the entry of neutrals, and so disposed or stationed as to create an evident danger, on their part, to attempt it." After this explanation of the important articles in the project concerning neutral commerce, Van Buren stated that the President's object in the contemplated negotiation was to lend his aid in extending to both countries the advantages which in public, as in constitutional and municipal legislation, resulted from fixed rules and permanent principles; that the President moreover "flatters himself that the adoption of these enlightened views by two Powers exercising, in different hemispheres the degree of influence over the Councils of their neighbors which necessarily attaches itself to their respective preponderance in the affairs of the two continents," might contribute to spread over the political world the liberal and benevolent sentiments by which they were animated. These considerations derived much weight from the attention paid by both countries to their armed marine. The steady and progressive increase of that arm of national defense, which constituted a "favorite and popular item in the policy of this country; and the new facilities afforded to the Russian Navy by the Emperor's conquests in the East, must, before long, give them a preponderance in the naval concerns of the world, capable of counterbalancing that of other Powers whose views may differ from those entertained by Russia and the United States." Finally, if future events "should require them again to arm in defence of neutral rights and the freedom of the seas, their combined fleets sweeping over the inland seas of Europe along the American Continent, and reaching across the Atlantic, will give them power and influence adequate to the maintenance of the principles they shall have asserted, and which those of the Law of Nations have given them the right to enforce."

On March 31, 1832, Secretary Livingston, in an instruction to Minister Buchanan in Russia, called attention to the earlier instructions to Randolph which were to guide him in forming a convention for regulating the maritime rights of the United States and Russia.1 Those instructions were to be slightly modified, however. First, by omitting from the project the preamble or declaration of principles. This alteration was suggested by the difficulty of agreeing on abstract principles. Furthermore, the principles contained in the preamble were developed in the subsequent clauses of the proposed treaty. Second, in the third article, in the list of contraband, the words Document 85, p. 349.

"cavalry belts, and horses with their garnitures [furniture]" were to be stricken out and the words "belts, war-saddles, and holsters" inserted. This modification was suggested "by the interpretation that might be made of the words cavalry belts, and horses, to the interruption of a trade in horses which is carried on with the West Indies."

PROPOSED CHANGE IN THE NETHERLAND TREATY

1

Secretary Livingston on May 18, 1832, gave instructions to the Chargé in the Netherlands for modifying the treaty of 1782 with that power. Two important changes relating to neutral trade were to be made. The provision in article 11 that free ships should make free goods was to be modified by the statement that it should be understood as applying to those powers who recognized the principle, but if either of the parties was at war with a third, and the other neutral, the flag of the neutral should cover the property of enemies whose governments acknowledged this principle, and no others. Article 12, which had provided that neutral goods in enemy ships were liable to confiscation, was to be replaced by the statement which had been included in article 13 of the treaty with Colombia. Accordingly, when free ships made free goods, enemy ships made enemy goods, and when free ships did not make free goods, neutral goods in enemy ships were free.

Livingston stated that the Netherlands would derive great advantage, in any wars in which they might be engaged and in which we should probably be neutral, if they would open their colonial trade to us without restriction. American ships could keep up intercourse between the mother country and its colonies. If they should answer that they could secure this advantage by temporary suspensions of their restrictive laws, the Chargé was to make this reply: The British doctrine that neutrals should not in time of war be permitted to carry on a trade to which they were not entitled in time of peace would probably in all such cases be enforced by Great Britain and other nations whose interest it might be to assert the principle. Therefore, Livingston considered it necessary that the trade should be secured by treaty.

LIVINGSTON ON "FREE SHIPS, FREE GOODS"

On November 20, 1832, Secretary Livingston wrote the President concerning a proposition from Minister Buchanan in Russia to modify article 1 of the project of June 18, 1830.2 This article provided that the principle of "free ships, free goods" should be understood as applying to those powers only who recognized the prin

1 Document 86, p. 350.

2 Document 87, p. 352.

« SebelumnyaLanjutkan »