ciple, and Buchanan proposed to modify the article by striking out the qualification. That the President might better judge whether this modification, should be made, Secretary Livingston recurred to "the manner in which the principle that the neutral flag should protect hostile property, was first introduced into the policy of the United States, and when and for what reason, it seems to have been abandoned."

In the following early treaties of the United States the principle was to apply without qualification when one of the parties was at war and the other neutral: France, 1778; Netherlands, 1782; Sweden, 1783; Prussia, 1785; Morocco, 1786; Spain, 1795; Algiers, 1795; Tripoli, 1796; and Tunis, 1797. The same principle was recognized in the armed neutrality, and Congress had directed that instructions be given to their cruisers to conform. This would doubtless have continued to be the policy of the United States if it had not been. found in the first European war occurring after our independence that this stipulation afforded no protection to our carrying trade "from the depredations of France, who acknowledged the principle, as from Great Britain, who disavowed it." The American Government felt from every day's experience that though these stipulations should have operated in our favor, they were of little avail. It therefore instructed John Quincy Adams, in negotiating a renewal of the treaties with Prussia and Sweden, to omit the articles which provided for this principle, " and thus virtually declare that belligerent property should not be protected by the neutral flag." In obedience to these instructions, although he made unavailing representations against them, Adams renewed the treaty with Prussia without stipulating that free ships should make free goods, but providing that the law of nations on the subject should be followed until a more favorable period for establishing the principle. That this was not considered the permanent policy of the United States was apparent from the language of the twelfth article of the Prussian treaty and from the treaties with France, of 1800, and with Algiers, of 1815, in which the principle was reasserted without any restriction. It appeared for the first time in our treaty with Spain in 1819, but with the proviso in question, that it should extend only to such nations as acknowledged the principle. In this modified manner it appeared in the treaty of 1824 with Colombia, of 1825 with Central America, and of 1832 with Mexico.

Livingston thought these facts showed that the principle of free ships making free goods, was considered by our Government a wise and humane policy, and that we had persevered for this purpose in endeavoring to establish it until the Government found that whenever the principle operated in our favor it was disregarded by the

powers who acknowledged it and by those who disavowed it. Unwilling wholly to abandon the principle even under these circumstances, our Government preserved it in subsequent treaties with a modification designed to save us from some of the disadvantages of its breach, and to induce the powers most opposed to it to see their true interest in its adoption. Obviously the proviso would not have been introduced if there had existed a well-founded hope that the article would have received the sanction of all the maritime powers without it, or that it would have been faithfully adhered to by them if they had agreed to it. The principal reason for adopting this proviso seems to have been an expectation that all the nations with whom we made treaties would agree to the article thus modified although they might otherwise object to it. Great Britain alone might take exception but, as she had made a similar stipulation with Portugal in 1654, she also might be induced by the exclusion implied in the proviso to come into the measure.

Evidently believing that the reasons for adoption of the proviso had not been justified, Livingston advocated its abandonment and the insertion, in as many treaties as possible, of the unqualified principle that free ships should make free goods. We should then as a neutral enjoy its advantages in so far as it was respected, whereas the proviso automatically precluded the application of the principle in a war between two powers one of which had not agreed to it.

As a corollary of the proposition that the flag gave its character to the property, he stated that it had been held to follow that neutral property found in an enemy vessel was good prize. A stipulation to this effect was introduced in the following treaties: France, 1800; Netherlands, 1782; Colombia, 1824; Central America, 1825; and Mexico, 1832. This stipulation was not included in our treaties with Morocco, Algiers, Tripoli, or Tunis. In them the direct reverse was provided: that free ships should make free goods and, at the same time, that neutral property should be respected in enemy ships. Under the supposition that the policy of the United States was to engage as seldom as possible in any wars, it seemed to be to our interest to extend neutral rights as far as possible and, therefore, this last clause ought also to be omitted. Livingston concluded with the statement that by the "existing law, neutral property is protected, although found in an enemy's vessel; and I see no reason why we ought to be anxious to change it, although we contend for the principle that free ships shall make free goods."

On November 22, Secretary Livingston informed Minister Buchanan that the President, after having the opinion of the heads

of departments, had directed that the instruction be amended so as to omit the proviso in the first article and the subsequent stipulation that the neutral property of either of the parties in enemy ships should be good prize.1 The President was determined to recur to the principles which governed the first American treaties in this respect, so far as to stipulate that free ships should make free goods, as between the parties, without any condition, but not to carry the principle that the flag should give its character to the cargo so far as to make the property of either of the parties, one being neutral and the other belligerent, good prize if found in an enemy ship. "This, being decided after solemn deliberation, may now, if it receives the sanction of the Senate, be considered as the settled policy of the Government."

Livingston thought the first principle would probably not be con.tested by Russia as it was in exact accordance with that of the armed neutrality, which originated with that power, but he thought Russia might possibly insist upon the further proposition that neutral property should be good prize in an enemy vessel. This, he observed, was a decided alteration of the existing law of nations, and although, theoretically considered, it was a consequence from the principle that the flag gave its character to the cargo, yet it might be fairly argued that it was a false theory founded on a misconception of the principal rule. That the neutral flag should protect all the property on board was not established from any fanciful idea that the cargo was supposed to be neutral because it was covered by a neutral flag. That hostile property was found in neutral ships was supposed by the rule. It was protected, not because the flag was supposed to change it into neutral property, but to extend commerce and avoid some of the evils of war such as vexatious visits, seizures, and arrests. The rule would be more correctly expressed by saying the neutral flag should protect hostile property than by the figurative expression that free ships made free goods. This expression, considered literally, had given rise to this reasoning: If free ships made free goods, then the goods derived their character from the ships. If a neutral ship made the cargo neutral, though it belonged to an enemy, by the same rule a belligerent ship must make the cargo hostile property, though it belonged to a friend. Livingston thought it would rarely happen that we should find it convenient to use belligerent vessels to carry our neutral trade, but it was to our interest to give every possible freedom and extension to commerce. Therefore, although Buchanan was to endeavor to insert a provision that neutral property found in an enemy ship should be safe, yet he was not to make it a point in his negotiation 1 Document 88, p. 355.

if the principle that the neutral flag protects hostile property should be admitted in its full extent. If it was agreed that neutral property in an enemy ship was free, it would be desirable to make a positive stipulation of both parts of the rule, as was done in all the treaties with the Barbary states. This was desirable because, although neutral property in a hostile ship was protected by the acknowledged law of nations, yet, in a case arising between two powers who had acknowledged by treaty the principle that free ships made free goods, the same process of erroneous reasoning mentioned above might perhaps be employed to show that, as between them, the false consequence should follow, of making neutral property good prize in an enemy ship.

Although Buchanan was to press for the adoption of the rule of free ships making free goods, without the proviso that it should not protect the property of nations which did not acknowledge the prin、 ciple, yet, if the proviso was made a condition without which he could not conclude a treaty, he was to yield the point, "it being considered as of some advantage even in that modified form."

On June 26, 1834, Secretary McLane informed the Minister in Russia that he was to endeavor to conclude a convention with Russia regulating the conduct of the two parties in case of war.1 McLane gave no new instructions on this subject but referred to those of June 18, 1830, to Randolph and those of March 31, 1832, to Buchanan, which were to guide in all respects.

1 Document 89, p. 357.

CHAPTER VIII

THE WAR WITH MEXICO

BLOCKADE INSTRUCTIONS

On May 13, 1846, President Polk proclaimed that a state of war existed between the United States and Mexico. A confidential circular instruction sent out by the Secretary of State on May 14 announced that " a strict blockade of the ports of Mexico, both on the Atlantic and Pacific, will be immediately established." The employment of the future tense and the fact that this circular was not for communication to the authorities and citizens of neutral states deprive it of the character of a notification of blockade.

The Secretary of the Navy, on May 13, instructed Commodore Connor, who commanded the Home Squadron, that in the existing war he was to exercise all the rights that belonged to him as commander in chief of a belligerent squadron.2 Connor was to declare and enforce a blockade of as many of the ports of Mexico as his force would enable him to do effectually, and he was to notify neutrals of his declaration, giving it all the publicity in his power. He was informed that his blockade must be "strict and absolute," and only public armed vessels of neutral powers should be permitted to enter the Mexican ports which he should place in a state of blockade.

On May 13 the Secretary of the Navy also sent instructions to Commodore Sloat who commanded the Pacific Squadron.' The Secretary called the Commodore's attention to an instruction of June 24, 1845, in which this statement was made: "If you ascertain with certainty, that Mexico has declared war against the United States, you will at once possess yourself of the port of San Francisco, and blockade or occupy such other ports as your force may permit." Commodore Sloat was now to be governed by those instructions, and when he established the blockade he was to allow neutrals 20 days to leave the blockaded ports. He was to render the blockade "absolute except against armed vessels of neutral nations."

STOCKTON'S BLOCKADE PROCLAMATION

Commodore Stockton, who succeeded Sloat as Commander of American forces in the Pacific, in carrying out this instruction issued a proclamation on August 19,5 declaring "all the ports, harbors,