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it pleases, and change these forms at its own will; and that it may transact its business with foreign nations through whatever organ it thinks proper, whether king, convention, assembly, committee, president or anything else it may choose. The will of the nation is the only thing essential to be regarded." In a word, the United States maintained that the true test of a
government's title to recognition is not the theoretical legitimacy of its origin, but the mere fact of its existence as the apparent
exponent of the popular will. This principle, though it necessarily found little support in Europe in 1793, has proved to be of the highest practical value; for not only has it continued to guide the course of the United States, but it has also become the generally accepted rule of international conduct.
The other great question to which we have adverted was that of the course which the United States should pursue in the first general European war, growing out of the French Revolution. In an early stage of that conflict, the government, after grave deliberation, resolved to preserve a neutral position. With this decision there began the great struggle concerning neutrality, whose concluding chapter may be found only in the Treaty of Washington of 1871 and the arbitration at Geneva. The determination to be neutral involved both the maintenance of rights and the performance of duties; but neither the rights nor the duties of neutrality had ever been clearly and comprehensively defined. While publicists had laid down on the subject, with more or less doubt and hesitation, certain general principles, the practice of governments had been fitful and uncertain, and there existed no recognized standard of neutral obligations. The establishment of such a standard fell to the lot of the United States. Writing on June 5, 1793, to M. Genet, the French minister, who had, on his arrival in the United States, issued commissions to American citizens under which privateers were fitted out to prey on English commerce, Mr. Jefferson, as Secretary of State, declared that it was “the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, and the duty of a neutral nation to prohibit such as would injure one of the warring Powers;” that “the granting military commissions, within the United States, by any other authority than their own,” was “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;" and that “the departure of vessels, thus illegally equipped, from the ports of the United States,” would be but an act of respect and was required as an evidence of neutrality. Somewhat later Mr. Jefferson informed M. Genet that the President considered the United States “as bound, in conformity to the laws of neutrality, to effectuate the restoration of, or to make compensation for, prizes which shall have been made of any of the parties at war with France subsequent to the 5th day of June last by privateers fitted out of our ports;" that it was consequently expected that he would
1 Washington's neutrality proclamation of April 22, 1793, and its history may be found in Moore, International Arbitrations, IV. 3968; V. 4406 et seq. This work will hereafter be cited as “International Arbitrations."
cause restitution to be made” of all prizes so taken and brought in subsequent to that day, in defect of which the President would consider it incumbent upon the United States “to indemnify the owners of those prizes, the indemnification to be reimbursed by the French nation;" and that, “besides taking efficacious measures to prevent the future fitting out of privateers in the ports of the United States, they will not give asylum therein to any which shall have been at any time so fitted out, and will cause restitution of all such prizes as shall hereafter be brought within their ports by any of the said privateers."? These declarations were amplified in a note to the British minister ;; and still later, in an instruction to Mr. Morris, then United States minister to France, Mr. Jefferson further declared “that a neutral nation must, in all things relating to the war, observe an exact impartiality towards the parties; that favors to one to the prejudice of the other would import a fraudulent neutrality, of which no nation would be the dupe; that no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else, directly serving for war; that the raising of 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 its territory, without its consent, *** ;
1 Am. State Papers, For. Rel. I. 150; International Arbitrations, I. 312. 2 Am. State Papers, For. Rel. I. 167; International Arbitrations, I. 313.
3 Mr. Jefferson to Mr. Hammond, Sept. 7, 1793, Am. State Papers, For. Rel. I. 174; International Arbitrations, I. 314.
that if the United States have a right to refuse permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments.'
" To ensure the enforcement of these views instructions were issued by Alexander Hamilton, then Secretary of the Treasury, to the collectors of customs ;? and Congress passed the first Neutrality Act, which forbade within the United States the acceptance and exercise by a citizen thereof of a commission, the enlistment of men, the fitting out and arming of vessels, the augmenting or increasing the force of armed vessels, and the setting on foot of military expeditions, in the service of any prince or state with which the United States was at peace.3
In due season compensation was made to British subjects, in conformity with the principles previously acknowledged, for injuries inflicted by French privateers in violation of American neutrality.
“ The policy of the United States in 1793,” says one of the greatest of English writers on international law, “ constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even
1 Am. State Papers, For. Rel. I. 168. 2 International Arbitrations, IV. 3971. 3 Act of June 5, 1794. Int. Arbitrations, IV. 3978 et seq. 4 International Arbitrations, I. 343.
went further than authoritative international custom has
to the present day advanced. In the main however it is identical with the standard of conduct which is now adopted by the community of nations."'1 But, upon the foundations thus surely laid, there was yet to be reared a superstructure. The act of 1794, which was to remain in force for only a limited term, was afterwards extended,” and was then continued in force indefinitely. An additional act was passed in 1817," but this, together with all prior legislation on the subject, was repealed and superseded by the comprehensive statute of April 20, 1818,5 the provisions of which are now embodied in the Revised Statutes. An act similar in its prohibitions, though less effective in its administrative powers, was passed by the British parliament in the following year; laws and regulations were from time to time adopted by other governments; and the duties of neutrality became a fixed and determinate part of international law. The supreme test of the system, as the ultimate standard of national obligation and responsibility, was made in the case of the Alabama Claims, and was made successfully. By Article VI. of the treaty between the United States and Great Britain, concluded at Washington, May 8, 1871, for the settlement of those claims, it was agreed that“ 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 to carry on war againt a Power with which it is at peace; and also to use like diligence to prevent the departure from its
1 Hall, Int. Law, 4th ed., p. 616.
6 Revised Statutes of the United States, Title LXVII., Sections 52815291. The things forbidden by the act of 1818 are summarized in the neutrality proclamation issued by President Grant, Oct. 8, 1870, with reference to the Franco-German War. (16 Stats, at L. 1132.)
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 make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation 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 British plenipotentiaries, by command of their government, declared that they assented to these rules as a means of strengthening friendly relations and of making satisfactory provision for the future, and not as a statement of the principles of international law which were in force at the time when the claims arose. Into this question it is unnecessary now to enter. At the present day the substance of the rules is uncontested.1
The struggle of the United States for neutral rights originated in the same great European conflict as the controversy respecting neutral duties. By a decree of the National Convention of May 9, 1793, the commanders of French ships of war and privateers were authorized to seize and bring in merchant vessels which were laden, either wholly or in part, with provisions, bound to an enemy's port, or with merchandise belonging to an enemy. The merchandise of an enemy was declared to be “lawful prize," but provisions, if the property of a neutral, were to be paid for, and an allowance was to be made in either case for freight and for the vessel's detention. This decree, which was defended on the ground of a scarcity of provisions in France, ran counter to the views of the United States concerning the freedom of trade in provisions, and, so far as it affected American vessels, to the stipulation in the treaty between the two countries for the freedom of enemy goods on
Rivier, Principes du Droit des Gens, II. 408; International Arbitrations, I. 670 et seq.