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CHAPTER I

THE WAR OF AMERICAN INDEPENDENCE

PRELIMINARY ACTS OF THE CONTINENTAL CONGRESS

The position of the American Colonies, at the beginning of the conflict with Great Britain, might be considered one of belligerency, though a war in the strict sense did not exist. Even before the Declaration of Independence, the Continental Congress adopted certain measures affecting maritime trade. On November 25, 1775, that body agreed to the report of a committee which had been considering General Washington's suggestion that courts be established for determining the legality of seizures of vessels and cargoes belonging to the enemy.1 The Committee reported that "the good people of these colonies, sensibly affected by the destruction of their property, and other unprovoked injuries ", had at last determined to procure reparation, and to prevent, as far as possible, a repetition of these acts by fitting out armed vessels. To determine the propriety of captures, the following regulations were made: (1) Ships of war and other armed vessels employed in the war against the Colonies, which should be taken by the colonists, should be forfeited. (2) Transport vessels in the same service, having on board any troops, arms, ammunition, clothing, provisions, or military or naval stores, and all vessels to whomsoever belonging, that should be employed in carrying provisions or other necessities to the British army or navy within the Colonies, should be liable to seizure. The cargoes only were liable to forfeiture and confiscation unless the vessels belonged to inhabitants of the Colonies, in which case the vessel and cargo both were liable. This second provision was changed by a resolution of December 19, 1775, which made vessel and cargo liable to confiscation regardless of ownership. (3) It was recommended that the Colonial legislatures provide courts of justice to determine the legality of captures to be made.

The Continental Congress on March 23, 1776, took further action on this subject in providing that: (1) the Colonists be permitted to fit out armed vessels "to cruize on the enemies of these United Colonies"; (2) ships and goods belonging to any inhabitant of Great Britain, taken by a private armed vessel and being libelled and

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Document 1, p. 125.

42179-34- --2

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prosecuted in court, should be adjudged lawful prize; (3) such vessels and goods taken by a ship fitted out by any of the Colonies should be deemed forfeited; (4) vessels employed in carrying supplies to the "ministerial armies " which should be taken near the shore of the Colonies should be deemed lawful prize.1

On April 3 Congress approved instructions by which the commanders of private ships or vessels of war were authorized to take ships belonging to the inhabitants of Great Britain and to "take all ships and other vessels whatsoever, carrying soldiers, arms, gunpowder, ammunition, provisions, or any other contraband goods," to any of the British armed forces employed against the Colonies.2

These measures besides affecting British property also affected property of neutrals in that neutral goods in British ships and neutral ships supplying the British armed forces might be subjected to the jurisdiction of American prize courts. They do not clearly indicate the position of the Continental Congress on controversial questions of the time relating to neutral trade, but in general they accord with concrete propositions which followed.

THE TREATY PLAN OF 1776

The first definite American statement on these questions appears in the so-called "treaty plan of 1776." On June 12 of that year the Continental Congress named a committee composed of John Dickinson, Benjamin Franklin, John Adams, Benjamin Harrison, and Robert Morris, to prepare a plan of treaties to be proposed to foreign powers. The Committee's report, drafted by John Adams, was adopted by Congress on September 17 in a form to be proposed to the King of France.3

In this treaty plan the American Congress made a definite statement on four important questions in regard to neutral commerce: (1) It was provided in article 26 that when one of the nations was at war and the other was neutral, the nationals of the neutral could trade with enemies of the belligerent, not only from enemy ports to neutral ports but also from port to port of the enemy. (2) Article 26 also provided that, in the same case, free ships should "give a Freedom to Goods " with the exception of contraband. (3) Contraband was strictly limited by article 27 to arms, munitions of war, and horses; and it was specifically stated that food and naval stores should not be classed as such. (4) Neutral goods in enemy ships were liable to confiscation, according to article 17.

This position of Congress regarding neutral trade was not unique in any essential. The provisions in the treaty plan concerning the

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1 Document 2, p. 128.

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2 Document 3, p. 130. 'Document 4, p. 132.

subject were taken almost without change from one of the treaties of Utrecht, the Treaty of Commerce and Navigation between Great Britain and France.1 A comparison of the provisions in the treaty plan with the corresponding provisions of this treaty reveals that Congress closely followed its terminology.

It should be observed, however, that the plan of 1776 did not necessarily represent what the United States considered the prevailing international law concerning neutral trade. The provisions on the subject were to apply only if a nation made a treaty with the United States embodying them and if one of the parties was at war and the other neutral. If a nation did not have such a treaty with the United States, the neutral trade of its nationals would receive treatment from the latter in accordance with the law of nations. The United States, however, desired that its position toward neutral trade, as shown in the treaty plan and subsequent treaties, should become a part of the law of nations. These points are brought out in the diplomatic correspondence of the period.

TREATY OF 1778 WITH FRANCE

The first American treaty to be signed, the Treaty of Amity and Commerce with France, of February 6, 1778, included almost without change the provisions of the treaty plan mentioned above.2 Article 25 of the treaty followed the terminology of the plan in providing for freedom of neutral trade from port to port of the belligerent powers and for freedom of enemy goods not contraband, found in neutral ships. The list of contraband in article 26 was almost identical with that contained in the treaty plan and the list of articles never to be considered contraband was the same in both instances. The statement in article 16 of the treaty providing that neutral goods in enemy ships were liable to confiscation was essentially the same as in the treaty plan.

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No other treaties on the basis of the plan of 1776 were concluded for almost five years. In the absence of any such treaties the treatment by the United States of neutral commerce was governed by the general rules of the law of nations. This state of affairs. was pointed out by Franklin in a letter to Vergennes explaining the condemnation of English goods found in a Dutch ship captured shortly before Holland's adoption of the code of the Russian declaration treated below. He gave three reasons for the condemnation: (1) that the law had been "settled" in America that enemy goods found in neutral ships might be taken out of

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them, (2) that the English had always condemned and confiscated American property found in Dutch ships, and (3) that a treaty had been offered long since on behalf of the United States to Holland, in which there was an article that free ships should make free goods, but no notice had been taken of that offer.

THE RUSSIAN DECLARATION OF 1780

Before any other American commercial treaties had been made, the Russian declaration on neutral trade was issued. This declaration of February 28, 1780, was communicated to the President of Congress by John Adams from Paris, on April 10.1 It embodied three of the principles which had been adopted in the plan of 1776 and which had been included in the treaty with France: (1) neutral ships should be free to trade from port to port of the belligerent powers; (2) enemy goods, not contraband, should be free in neutral ships; (3) contraband goods should be limited to arms and war supplies. It also included a statement that a blockaded port was one where there was evident danger to entering ships.

STATEMENTS OF ADAMS AND FRANKLIN

The declaration of the Russian Empress and the attention it received in Europe stimulated the interest of John Adams and Benjamin Franklin in the subject of commerce in war. Adams, in a letter of April 14, 1780, to the President of the Continental Congress,2 made what appears to be the first original American contribution on the subject of freedom of neutral commerce. In that letter he expressed the opinion that the "abolition of the whole doctrine of contraband would be for the peace and happiness of mankind." Furthermore, he thought that as human reason advanced all neutral nations would be allowed by universal consent to carry what goods they pleased in their own ships provided they were not bound to places actually invested by an enemy.

Franklin, on May 30, 1780, requested an agent for American cruisers to give absolute orders for the cruisers to bring in no more Dutch vessels carrying enemy goods unless the goods were contraband. He pointed out that all the neutral states of Europe seemed disposed to change the law of nations, " that an enemy's property may be taken wherever found, and to establish a rule that free ships shall make free goods." This rule he considered so reasonable and of a nature so beneficial to mankind that he hoped it might become more general; and he thought Congress would agree to it. Until he received orders from Congress on the subject, he said he intended to

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1 Document 6, p. 140.

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2 Document 7, p. 143. Document 9, p. 145.

condemn no more English goods found in Dutch vessels unless the goods were contraband. On May 31 Franklin reported this action to the President of Congress.1

In letters of June 32 and June 5,3 1780, Franklin offered suggestions for improving the law of nations. Although he approved of the principles of the confederacy of neutral powers, he wished for the sake of humanity that the law of nations might be further improved. He thought it should provide that even in time of war all those who were "employed in procuring subsistence for the species, or in exchanging the necessaries or conveniences of life which are for the common benefit of mankind-such as husbandmen on their lands, fishermen in their barks, and traders in unarmed vessels " should be permitted to continue their employment without interruption or molestation and that nothing should be taken from them even when wanted by an enemy, except when a fair price was paid for the same. The statements of Franklin in these two letters contained the idea which made the treaty of 1785 between the United States and Prussia an unusual one in regard to commerce in time of war and marked the beginning of the development of the American principle of immunity of private property at sea.

APPROVAL OF THE RUSSIAN DECLARATION

These expressions of Adams and Franklin were followed soon after by an act of the Continental Congress on October 5, 1780.5 On that date Congress requested the Board of Admiralty to prepare and report instructions for the commanders of American armed vessels, conformable to the principles contained in the declaration of the Russian Empress. These instructions to commanders of ships of war and private armed vessels, adopted by Congress on November 27, contained the following provisions: (1) Neutral vessels were permitted to navigate freely on the high seas or along the coasts of America, except those carrying contraband goods or soldiers to the enemies of the United States. (2) Enemy goods in neutral ships were free from capture, unless contraband. (3) The term "contraband" included only those articles mentioned in the treaty with France, namely, arms, war supplies, and horses. (4) All commissions, bonds, and instructions should conform to the preceding regulations. (5) These instructions, the principles on which they were grounded, and the act of Congress of October 5 were to "serve as a rule of proceedings in the United States on the legality of prizes." Although these instructions were supposed to conform

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