part of the law of nations. However, in furthering the proposition that free ships should make free goods, the United States made treaties with six states including provisions to the effect that the contracting parties recognized both principles as permanent and immutable" and would apply them to commerce of states agreeing to adopt them as such.

DEFINITION OF CONTRABAND OF WAR

66

The United States has generally favored limiting contraband to arms, munitions of war, and military supplies, and on several occasions has suggested complete abolition of the doctrine. Though favoring a restricted list of contraband articles, the American Government has held that according to the law of nations naval stores were contraband and that foodstuffs might become so when destined to belligerent military forces. The law of nations has been followed in this regard unless there were treaty stipulations to the contrary.

The treaty plan of 1776 limited contraband to arms, munitions, war supplies, and horses, and the American contraband list issued shortly after the Russian declaration of February, 1780, contained a like limitation. All American treaties containing provisions on the subject followed the treaty plan, except Jay's treaty which listed naval stores as contraband and included a statement that when foodstuffs became contraband "according to the existing Laws of Nations," they should not be confiscated but could be purchased.

In 1780, John Adams suggested the abolition of the doctrine of contraband. Three years later the commissioners to negotiate peace proposed to Great Britain the inclusion of a treaty provision to the effect that contraband articles, limited to arms and war supplies, could be purchased but not confiscated. This provision was included in the treaty plan of 1784 and was adopted in the three treaties with Prussia. Although instructed to press for abolition of contraband in the treaty with Great Britain, Jay had been unable to carry out his instructions in this regard. Several times during the Napoleonic wars Secretary of State Madison advocated the abolition of contraband. Secretary Marcy in 1856 expressed himself in favor of a modification or abandonment of the doctrine of contraband, but did not urge this change for fear of embarrassing negotiations relating to the Declaration of Paris.

As no contraband list was issued during the War of 1812 or the war with Mexico, American naval officers and American courts were presumably guided by the law of nations where treaty stipulations did not apply. During the Civil War no contraband list was announced, although Treasury regulations in 1862 regarding trade with southern ports opened by proclamation contained a list of "contraband" ar

ticles limited to arms, munitions, and naval stores. This list was transmitted to American consular officers for communication to foreign shippers, and therefore had some of the aspects of a regular notification of contraband articles. A presidential proclamation of 1865 definitely restricted contraband to arms, munitions, and war supplies. At the beginning of the war with Spain, the American Government announced lists of absolute and conditional contraband, the former restricted to arms, munitions, war supplies, and horses, and the latter to coal, railway and telegraph materials, money, and provisions. These lists without substantial change were included in the Naval War Code of 1900. The American delegates to the Hague Conference of 1907, instructed to limit the contraband list as narrowly as possible, voted against the British proposal to abolish contraband completely. Later, the delegates were authorized to endorse the abolition of conditional contraband. The instructions of 1907 on the subject of contraband were also given the delegates to the London Conference. The absolute and conditional contraband articles listed in the Declaration of London, which was signed by delegates of the United States, varied from the American regulations of 1898 and 1900, particularly in the greater extent of the conditional list.

CONTINUOUS VOYAGE AND THE RULE OF THe War of 1756

The doctrine of continuous voyage arose as a result of efforts to evade the British rule of war of 1756, under which neutrals were not permitted in time of war to engage in a trade from which they were excluded in time of peace. The treaty plan of 1776 and practically all American commercial treaties included safeguards against the effects of this rule by providing that in case of a war in which one of the parties was belligerent and the other neutral, the trade of the neutral should be free between enemy ports. Jay's treaty, of course, included no such stipulation. The Russian declaration of 1780 contained a provision for freedom of neutral trade between enemy ports, and the United States embodied it in naval instructions of that year.

No definite Executive pronouncements against the rule of 1756 were made until the Napoleonic wars. Secretary of State Madison then made frequent protests against this rule, which he considered. was not part of the law of nations and which greatly interfered with the American carrying-trade between the French West Indies and France. To avoid its effects, American shippers landed cargoes from the West Indies in ports of the United States, hoping thereby to break the voyage. The British courts, however, ultimately condemned such cargoes, holding that the continuity of the voyage was not broken.

After the Napoleonic wars American Secretaries of State expressed themselves against the rule of 1756 and concluded numerous treaties with Latin American countries containing provisions for neutral trade from port to port of the enemy. In 1854, when Great Britian was contemplating rules to be applied in the pending war, Secretary Marcy stated that if the British Government attempted to apply the rule, it might disturb their friendly relations with the United States. The correspondence considered in this survey contains no further mention of the rule, but several American treaties concluded after 1854 provided for freedom of neutral trade between enemy ports.

During the Civil War, American naval officers were instructed that neutral ships carrying contraband directly or indirectly to insurgent territory or destined directly or indirectly for blockaded ports were to be seized. The United States Supreme Court in 1865 and 1866 upheld the doctrine of continuous voyage in opinions that neutral goods could be condemned under it either as contraband or for violation of the blockade.

Instructions of 1898 to American naval commanders and the Naval War Code of 1900 appeared to give authority to act under the rule of continuous voyage. The delegates to the London Naval Conference of 1908-1909 were instructed to present the code of 1900 as embodying the American position on neutral trade. They were specifically instructed to agree to the abandonment of continuous voyage for conditional contraband and for blockade but to insist upon it for absolute contraband. The resulting Declaration of London excluded application of the doctrine in relation to blockade and conditional contraband, but provided that absolute contraband goods destined directly or indirectly for belligerent territory were liable to capture.

VALIDITY OF BLOCKADE

The United States has always held that a blockade to be valid and binding should be maintained by a force sufficient to make hazardous the communication with a blockaded port. A valid blockade was not defined in the treaty plan of 1776, but a definition was included in the plan of 1784. For many years thereafter the American Government tried unsuccessfully to define a blockade in treaties which it concluded. During the Napoleonic wars the Government reiterated the statement that a blockade to be binding should be effective, and President Madison in 1812 made clear that "mock blockades" were one of the principal causes of the war between the United States and Great Britain.

The first American treaty to define a valid blockade was that of 1824 with Colombia. Thereafter a definition was included in prac

tically all treaties with Latin American states containing provisions relating to neutral trade. The only treaty with an European power which included a definition was the treaty of 1871 with Italy. When the United States was invited to adhere to the Declaration of Paris, which declared that a blockade in order to be binding should be effective, the Secretary of State explained that this provision merely reiterated an undisputed maxim of maritime law.

The State Department in 1846 informed the American representatives abroad that an effective blockade of Mexican ports would be established, and instructions of the Secretary of the Navy made clear that the blockade should be effectively maintained. Commodore Stockton, however, issued a proclamation which appeared to neutral governments to embrace ports not effectively blockaded. The Secretary of State then informed the British Minister that there had been no intention to establish a paper blockade, and further instructions to American naval officers emphasized that under Stockton's proclamation no Mexican port was considered blockaded unless a force was stationed sufficiently near to make trade with that port dangerous.

President Lincoln, on April 19, 1861, announced that an effective blockade of the southern ports would be established and that no neutral vessels would be captured without having been once warned by the blockading squadron. The procedure under this proclamation, and instructions to naval officers in accordance with it, was to have warning given by blockading vessels as the blockade was made effective. Secretary of State Seward explained that the blockade was effective as evidenced by its results in reducing the supply of imported articles in the South and of cotton in the European markets.

At the beginning of the war with Spain, President McKinley announced that the United States had instituted and would maintain an effective blockade of Cuban ports. Naval instructions stated that a blockade to be effective and binding should be maintained by a force sufficient to make dangerous the communication with a blockaded port.

The Naval War Code of 1900 contained a statement that a blockade to be binding should be effective, and a like provision was included in the Declaration of London.

IMMUNITY OF PRIVATE PROPERTY AT SEA

A proposition for immunity of private property at sea in time of war was suggested by Benjamin Franklin in 1780. In 1783 it was presented by the American commissioners to negotiate peace with Great Britain, to be included in a treaty with that power. The

Continental Congress included such a proposition in the treaty plan of 1784, and it was embodied in the first treaty with Prussia.

The proposition outlined on these three occasions was that in case of war between the two parties the ordinary commerce of their nationals should not be molested and that privateers should not be commissioned to interrupt such commerce. The extent to which immunity should prevail against public armed ships was left doubtful. It does not appear from the language of the proposition, however, that the immunity of commerce in ordinary commodities extended to the special traffic of supplying armed forces with implements of war. Nor is there any indication of the effect of the proposition on the right of blockade.

Secretary of State Pickering gave instructions that in renewing the treaty of 1785 with Prussia an alteration should be made which would leave commerce to the attack of privateers in case of a war between the two parties. He explained this instruction by stating that the abolition of privateering would be disadvantageous to the United States, which had few ships of war but which was strong in the number of seamen and in private wealth.

The immunity proposal made by the American Government in 1823 was for the "perpetual abolition of private war upon the sea.” This proposition was more definite than the earlier ones in providing that neither party to the proposed treaty should authorize public or private vessels to interrupt ordinary commerce, but was no clearer in relation to contraband and blockade. After five years of unsuccessful negotiation with Great Britain, France, and Russia, efforts to secure its adoption were temporarily abandoned. President Jackson feared a proposition which would restrict means of American warfare at sea to " our young navy alone."

President Pierce in 1854 suggested a rule of international law which would exempt private property upon the ocean from seizure by public armed ships as well as by privateers. Two years later the United States agreed to adhere to the Declaration of Paris if the powers would accept an amendment to the proposal for the abolition of privateering, which would exempt belligerent private property not contraband from seizure by public ships as well as by privateers. Although in 1861 the United States offered to adhere to the declaration without this amendment, Secretary Seward reasserted the American preference for immunity.

The American proposition for immunity was mentioned in treaties of 1858 with Bolivia and 1864 with Haiti, wherein statements were made that the parties contemplated a later agreement to relinquish the right to capture private property on the high seas. Secretary Seward in 1867 agreed to include an immunity article in a projected treaty with Italy, but was unwilling to make a general attempt to