first fifty years of the Republic is mainly the story of its attempt to preserve intact its rights as a neutral, at the time when Europe was aflame with war. The situation has been well summarized by Judge John Bassett Moore:

31

"For generations, Europe had been a vast battle-ground, on which had been fought out the contests not only for political but also for commercial supremacy. Of the end of these contests, there appeared to be no sign; nor, in spite of their long continuance, had the rights and duties of non-participant or neutral nations been clearly and comprehensively defined. Indeed, so intricate were the ramifications of the European system that, when discords arose, it seemed to afford little room for neutrality. The situation of the United States was essentially different. Physically remote from the Old World, its political interests were detached from those of Europe. Except as it might be drawn into disputes affecting the fate of existing colonies or the formation of new ones in America, it was not likely to become embroiled in European wars. Not only, therefore, did it enjoy the opportunity to be neutral, but its permanent interest appeared to be that of neutrality; and the importance of preserving this interest was greatly enhanced by the necessity of commercial and industrial development. The new nation, though born, was yet to demonstrate to a world somewhat sceptical and not altogether friendly its right and its power to live and to grow. It was easy to foresee that its enterprise would penetrate to the farthest corners of the globe, and that its commerce, overspreading the seas, would be exposed to hazards and vexations of which the most uncertain and potentially the most disastrous were those arising from the exorbitant pretensions of belligerents. To resist these pretensions would fall to the lot of a neutral power; and upon the results of this resistance would depend the right to be independent in reality as well as in name, and to enjoy the incidents of independence.' '32

31 See generally, Henry Adams, History of the United States During the First Administration of Thomas Jefferson (New York, 1891); Cambridge Modern History, Vol. Seven, The United States (Cambridge, 1903) cc. X-XII.

32 J. B. Moore, The Principles of American Diplomacy (New York, 1918) p. 35.

The detailed story of these years is a familiar matter. Although at first the foreign policy of the young republic was unsettled," it soon adopted the definite course of maintaining strict neutrality, and resisting, first, the agressions of the French, and later, and less successfully, those of the British, against American commerce. While the uncompromising attitude of Great Britain in her practice. of impressment and the abuses of such practice furnished the sentimental basis for the War of 1812, it was British aggressions on American neutral trade which brought the general support of the new country to hostile measures. It did not matter whether these British acts were designed to impede the growth of such commerce, or whether they were merely retaliatory acts upon France, for their effect was the same. As in the World War a century later, the United States had adopted a policy of neutrality as between the belligerent powers; and in 1812 it went to war to secure its rights against seizure, against detention, and against improper prize proceedings."

Although circumstances during the following century dictated that the insistence of the American Government should be upon the duties of neutrals," rather than upon their rights, there were many instances in which the United States, by virtue of its increasing strength, was able to insist upon the continued recognition of freedom of maritime commerce. At the time of the Crimean War, a new treaty was entered into with Russia embodying "A Convention as to Rights of Neutrals at Sea" and setting forth once again the American view

S3 For the part played by the United States in the diplomatic attempt of the Baltic countries to preserve neutrality in 1794, see Bemis, The United States and the Abortive Armed Neutrality of 1794, American Historical Review, Vol. XXIII, No. 4, July, 1918, As to the early vacillating attitude of the United States on the question of "free ships, free goods", see Bergbohm, Die Bewaffnete Neutralität, 1780-1783 (Berlin, 1884) §70.

For the early American attitude toward the interference with and detention of neutral commerce, see a contemporary pamphlet by Thomas Paine, "Compact Maritime for the Protection of Neutral Commerce and securing the Liberty of the Seas," (Washington, 1801).

34 See Updike, The Diplomacy of the War of 1812 (Baltimore, 1915) c. II. It was at this same time that commercial treaties were entered into with the Barbary States. See Elliot, American Diplomatic Code (Washington, 1827) pp. 415-459. It is interesting to note that the Treaty of September 4, 1795, with Algiers, was concluded through the voluntary aid of Pierre Erie Skjöldebrand, the brother of the Swedish consul. Skjöldebrand was later employed by the United States as its agent. Later in 1812, when Commodore Decatur appeared at Algiers, American casualties were avoided when "the messenger, accompanied by the Swedish consul as mediator, ''rowed" five miles to shore and back within three hours.'' See Schuyler, American Diplomacy (New York, 1901) pp. 212-213, 222-223. The interest of both Sweden and the United States in preventing depredations on neutral commerce was at that time identical.

35 This is most strikingly illustrated by the famous Alabama Claims which were submitted to arbitration by the Treaty of Washington, May 8, 1871. Malloy, Treaties, p. 700. Compare note 2, ante p. 9.

39

36

of the rights of neutrals to trade even in time of war. Similarly, the active participation of the United States in the First and Second Hague Peace Conferences" evidenced its attitude concerning the maintenance of neutral rights. The history of these conferences is familiar, as are the events leading up to the naval conference in December, 1908, which resulted in the signing of the Declaration of London. Thus up to the eve of the World War, the United States had not only solicited and secured commercial treaties, including that involved in the present case,-granting the widest reciprocal rights to neutral trade, with complete immunity from capture and detention,--but, in addition, its policy throughout its national history had been to insist upon the fullest recognition of such rights and privileges.

AMERICAN NEUTRALITY, 1914-1917.

The outbreak of the European war did not effect a change in the policy of the United States. Up to its entry into the war, that country took the same position with regard to its rights, as a neutral, to trade with whomever it pleased, that it had taken a century before. But the new world-wide struggle forced upon international attention the increasingly difficult position in which neutral states find

*

36 The first treaty with Russia, a "Convention As To The Pacific Ocean," concluded in 1824, had prohibited the sale of liquor or firearms, but it stipulated that this provision shall never afford a pretext, nor be advanced, in any case, to authorize either search or detention of the vessel, seizure of the merchandise, or any measures of constraint whatever." Malloy, Treaties, p. 1513. This clearly evidenced the American attitude at the time. A second Treaty of Commerce and Navigation, concluded with Russia in 1832, had provided full reciprocal liberty of commerce and navigation. The Convention of 1854, mentioned in the text, stated that "The two High Contracting parties recognise as permanent and immutable the following principles, to wit:

1st That free ships make free goods that is to say, that the effects or goods belonging to subjects or citizens of a Power or State at war are free from capture and confiscation when found on board of neutral vessels, with the exception of articles contraband of war.

2d That the property of neutrals on board an enemy's vessel is not subject to con fiscation, unless the same be contraband of war. Malloy, p. 1520.

*

*

Similar treaties were made with the Two Sicilies on January 13, 1855, and with Peru on July 26, 1856. These and later commercial treaties with Bolivia, in 1858, and with Italy in 1871, are digested in a United States Government compilation of "The Laws of Neutrality Existing on August 1, 1914." (Washington, 1918) p. 1 et seq.

37 The United States had acceded to the Geneva Convention of 1864 (Malloy, Treaties, p. 1903), and to a like Convention concluded in July, 1906. The text of the First Hague Convention is found in Malloy, Treaties, p. 2016, and that of the Second, in id., p. 2220. The United States also subscribed to the International Red Cross Convention of 1906. Malloy, p. 2183. The history of the Hague conferences is set forth in Scott, The Hague Peace Conferences (Oxford, 1917).

38 This attitude had also been evidenced in several cases involving the seizure and deten tion of American vessels. See the ease of the Virginius and the Alliance reported in Moore, American Diplomacy, pp. 119-21. See also "Agreement of February 27, 1875-the Steamer Virginius," in Malloy, Treaties, p. 1664.

39 See Scott, The Declaration of London, February 26, 1909. (New York, 1919.)

themselves between two large groups of antagonists. Economic, national, and imperial interests impelled these belligerent groups to establish coërcive systems for the prosecution of their interests,systems which, more than ever before, infringed the rights of neutral traders secured either by custom or treaty. It was only when a neutral strong enough to put power behind its demands made protest, that the respective belligerents made any concessions or suffered any of these rights to be enjoyed. The history of American neutrality from 1914 to 1917 will remain as the greatest illustration of this fact.

The details of the attempt on the part of the United States, prior to its entry into the conflict, to maintain its right to trade as a neutral free of attack or detention, is too well known to the Tribunal to warrant extensive retelling." The main tendencies were clearly expressed at the outset. On August 6, 1914, Mr. Bryan, the American Secretary of State, instructed the American diplomatic representatives at the capitals of the principal belligerents to inquire whether the governments at war were willing to accept the laws of naval warfare as laid down in the Declaration of London of 1909." It was said that the United States believed "that an acceptance of these laws by the belligerents would prevent grave misunderstandings which may arise as to the relations between neutral powers and belligerents."

This suggestion was accepted by the Austro-Hungarian and German Governments, but on the condition that the opposing belligerents would do the same. The Allies naturally followed the lead of the British Government, which on August 22 declared that it would generally adopt those rules, "subject to certain modifications and additions which they judge indispensable to the efficient conduct of their naval operations." These modifications eventually grew to such an extent that they practically vitiated the Declaration of London. Although the British and other Governments continued to state that their action was within the Declaration, the United States withdrew its suggestion. On October 22, 1914, it stated that since some of the bel

40 Diplomatic Correspondence Between the United States and Belligerent Governments Relating to Neutral Rights and Commerce (New York, 1915) printed as a supplement to Volume Nine of American Journal of International Law, p. 1, et seq. See Graham, The Controversy Between the United States and the Allied Governments Respecting Neutral Rights and Commerce During the Period of American Neutrality, 19141917 (Austin, 1923) passim. For a defense of the English position at the time and a discussion of the Anglo-American correspondence, see Sir Francis Piggott, The Neutral Merchant (London, 1915) passim.

41 Diplomatic Correspondence, supra, note 40, p. 7.

ligerents would not accept the Declaration without modification, the American Government insisted "that the rights and duties of the United States and its citizens in the present war be defined by the existing rules of international law and the treaties of the United States, irrespective of the provisions of the Declaration of London; and that this Government reserves to itself the right to enter a protest or demand in each case in which those rights and duties so defined are violated or their free exercise interfered with" by the belligerent authorities.*2

It is not necessary to review the series of incidents and resultant notes exchanged during the next three years between the United States and the belligerent powers. But two little-known incidents concerning the detention of American vessels, which indicate the policy of the United States prior to its entry into the war, in cases similar to the present, may be cited. In March, 1915, the American steamship Wico arrived in England with a cargo of oil consigned to a Swedish Company at Stockholm. This vessel was detained by the British Government on the ground that, shortly before, another American vessel laden with a similar cargo for the same consignee had been seized by a German man-of-war; and the British Government refused to permit the Wico to proceed until satisfactory assurances had been given that it would not share the same fate. The American Government immediately remonstrated and cabled its ambassador at London:

66# #

to inquire of the British Government as to whether the vessel is held for reasons stated and to state that, in that case, the Government of the United States considers that the vessel should be released at once, in view of the evident fact that the United States Government can not admit the right of the British Government to detain the vessel without any evidence showing that her cargo has an illegal destination, and before a reply has been received to demand made on a nonbelligerent country, which such country is evidently unable to comply with, viz., that it give assurances that the ship while on her way will not be held up by the forces of another belligerent Government. ""4

The British immediately permitted the vessel to proceed, but stated:

42 Diplomatic Correspondence, supra Note 40, p. 7.

48 Id., p. 343. Italics Ours.