acknowledged. The last sentence in article 23 of the treaty of 1785, which provided for the freedom of belligerent commerce and against the issuance of commissions to privateers, was omitted, although the remainder of the article became article 23 of the new treaty. Article 13 carried the provision of the same article in the treaty of 1785 that contraband articles could be purchased but not confiscated, and in addition it contained a contraband list limited to arms and munitions of war.

ABROGATION OF TREATY OF 1778 WITH FRANCE

By an act of Congress approved July 7, 1798, the treaty of 1778 with France was declared abrogated. Although the French refused to recognize the effectiveness of this unilateral action, so far as the United States was concerned it left relations with France in respect to maritime commerce governed solely by existing rules of international law. Claims of American citizens arising out of captures made by the French during this period were ultimately referred by Congress to the Court of Claims for opinions. This Court was obliged to determine what were the established rules of international law in 1799, and its opinions reflect the American understanding of the law at that time.

In this connection the Court of Claims in 1901 held that in 1799 "horses were presumptively considered contraband according to the usage of most nations." 1 The same Court in 1903 held that in 1799 naval stores, including tar, were considered contraband by the law of nations.2

TREATY OF 1800 WITH FRANCE

3

The convention of September 30, 1800, with France followed closely the plan of 1776 and the treaty of 1778. It was provided in article 14 that free ships should make free goods with the exception of contraband, and in the following article that enemy ships should make enemy goods. Article 13 contained a contraband list limited to arms and munitions, which were stated to be just objects of confiscation when destined to the port of an enemy. No list was included, as there had been in the treaty of 1778, of articles which should not be considered contraband of war. Article 12 provided for freedom of neutral commerce, not contraband, between enemy ports not actually blockaded, beseiged, or invested. Although there was included no definition of a blockaded port the use in article 12 of the term "actually blockaded " had some significance.

1Document 154, p. 498.

2

3

Document 155, p. 501. 3 Document 42, p. 231.

MARSHALL'S VIEWS ON CONTRABAND AND BLOCKADE

Secretary of State Marshall in an instruction of September 20. 1800, to the Minister in Great Britain pointed out that the British courts had greatly swelled the list of contraband by their interpretation of the phrase in article 18 of Jay's treaty, which stated that the contraband list should include "whatever may serve directly for the equipment of vessels." He said the law of nations was clearly understood to declare that articles exclusively used in war were contraband and that all articles not used in war were the objects of lawful commerce. However, articles proper either for peace or war might be, it had been contended, contraband or not, according to circumstances. Admitting this opinion to be correct, it seemed to him a reasonable construction of the law that the character of the doubtful articles should be determined by the circumstances controlling the use to which they were to be applied. If the circumstances of the cargo and its destination showed unequivocally that the application must be to military purposes, materials fit for both peace and war might assume the character of contraband; but if those circumstances afforded solid ground for the opinion that the suspected materials were designed only for the ordinary purposes of the nation, there could be no just motive for interrupting a commerce which should be pronounced lawful.

Marshall also considered the subject of blockade. He said that ports not effectually blockaded by a force capable of completely investing them had been declared in a state of blockade, and vessels attempting to enter them had been seized and on that account confiscated. Further he argued that if the effectiveness of the blockade was dispensed with, then every port of the belligerent powers might at all times be declared in that state and the commerce of neutrals would thereby be subjected to universal capture and that therefore it was of the "last" importance to neutrals that the principle of an effective blockade be maintained unimpaired.

Marshall also made the interesting statement that if the reasoning on which was founded the right to intercept and confiscate supplies designed for a blockaded town were examined, it would be difficult to resist the conviction that its extension to towns invested only by sea was an unjustifiable encroachment on the rights of neutrals; that it might well be questioned whether the rule could be applied to a place not completely invested by land as well as by sea. However he made it clear that the United States was not complaining of this "departure from principle."

1 Document 41, p. 227.

CHAPTER III

THE NAPOLEONIC WARS

JEFFERSON ON THEORY AND PRACTICE

In a letter of September 9, 1801, to Robert R. Livingston, upon his appointment as Minister to France, President Jefferson stated that it had not been thought necessary to say anything in instructions from the Secretary of State on the question then agitating Europe as to whether free ships should make free goods. The United States did "not mean to take any side in it during the war," but Jefferson thought his ideas on the subject, presented, not officially, but as his opinion, might be useful for the Minister to have in case unforeseen circumstances might oblige the latter to hazard an opinion concerning it. He said that one of the practices of European maritime nations was that of taking the goods of an enemy from the ships of a friend; and that "into this practice every maritime State went sooner or later, as it appeared on the theatre of the ocean." If therefore we were to consider the practice of nations as the sole and sufficient evidence of the law of nature among nations, we should unquestionably place this principle among those of the natural laws. But its inconveniences to neutral nations and its tendency to embroil them in wars induced nations to introduce by special compacts the more convenient rule that free ships should make free goods, which he considered "the genuine principle dictated by national morality." It had never been supposed lawful to seize enemy goods in the territory of a friend. Jefferson believed that since nature had not subjected the sea to the jurisdiction of any particular nation, the portion which happened to be occupied by the vessel of any nation in the course of a voyage was for the moment the exclusive property of that nation and, with the vessel, was exempt from intrusion by any other. Since no nation ever pretended to a right to govern by its laws the ship of another nation navigating the ocean, Jefferson wondered by what law that ship could be entered while in peaceful and orderly use of the common element. He perceived no distinction between the movable and immovable jurisdiction of a friend which would authorize the entering of one and not the other to seize the property of an enemy. 1 1 Document 43, p. 233.

23

He said it might be objected that this proved too much, as it proved that neutral ships could not be entered and searched for contraband of war. However, he thought this was not proving too much. The practice of seizing what was called contraband of war was an abusive practice not founded in natural right, and war between two nations could not diminish the rights of those remaining at peace. The doctrine that the rights of nations "remaining quietly in the exercise of moral and social duties" were to give way to the convenience of those who preferred plundering and murdering one another, he considered a monstrous doctrine which ought to yield to the more rational law that the wrong which two nations endeavor to inflict on each other must not be inflicted on the rights or conveniences of those remaining at peace. In considering what was contraband by the law of nature he was of the opinion that everything which might aid or comfort an enemy was contraband, or nothing. Either all commerce which would accommodate the enemy was unlawful or none was, and the difference between articles of one or another description was a difference in degree only, so that no line could be drawn. He thought reason and nature clearly pronounced that neutral commerce should remain free, not subject to the jurisdiction of another. Consequently neutral vessels should not be subject to search or to inquiries whether their contents were enemy property or were of the nature called contraband of war.

This doctrine, Jefferson felt, did not contravene the right of preventing vessels from entering a blockaded port, which right stood on other ground. When the fleet of any nation actually beleaguered a port, no other had any more right to enter the line of blockade. than to enter the line of battle in the open sea or of battle array on land.

Although Jefferson considered the observance of these principles of great importance to the interests of peaceable nations, among whom he hoped the United States would ever place themselves, yet in the existing state of things they were not worth a war, nor did he believe war the most certain means of enforcing them. Those peaceful coercions which were in the power of every nation, if undertaken in concert and in time of peace, he considered more likely to produce the desired effect.

Moreover, since we had no treaty with England substituting the principle of free ships, free goods, for the ordinary rule, we had neither the right nor the disposition to go to war for its establishment. Jefferson concluded his letter by stating that if it should become at any time expedient for the United States to cooperate in the establishment of this principle, the opinion of the Executive and

that of Congress would need to be expressed, but as far as he could judge, the principle of free ships, free goods, would " wishes of our nation."

carry the

MADISON ON BLOCKADE

The subject of blockade was considered by Secretary of State Madison in an instruction of October 25, 1801, to the Minister in Spain.1 He stated that a pretext for the seizure of American vessels bound to Gibraltar seemed to be that the port had been proclaimed in a state of blockade. If that proceeding was avowed by the Spanish Government, Pinckney was to reply that Gibraltar was not and could not be admitted by the United States to be really blockaded. The situation of a naval force at Algeciras, in relation to Gibraltar, had not the shadow of likeness to a blockade as truly and legally defined. This force could neither be said to invest, besiege, or blockade the garrison nor to guard the entrance into the port. On the contrary, the gunboats interrupting American commerce had their stations in another harbor and were so far from beleaguering their enemy at Gibraltar and rendering the entrance into it dangerous to others that they themselves were for the most part kept at a distance by a superior naval force. The principle on which this blockade was asserted was more inadmissable because if a neutral vessel bound to Gibraltar could be annoyed and made liable to capture by these waylaying cruisers, every Mediterranean port could with equal reason be proclaimed in a state of blockade and neutral vessels bound to them made equally liable to capture. Finally, Madison stated that among the abuses committed under pretext of war none seemed to threaten greater mischief to neutral commerce than the attempts to substitute fictitious blockades by proclamation for real blockades formed according to the law of nations. Consequently there was no abuse against which it was more necessary for neutral nations to remonstrate effectually before the innovations acquired maturity and authority from repetitions on one side and silent acquiescence on the other.

Two years later Madison again protested a so-called blockade, this time to the British Chargé regarding that of Martinique and Guadeloupe. On October 27, 1803,2 he stated that it could never be admitted that neutral trade in articles not contraband could be legally obstructed to any place not actually blockaded, or that any notification or proclamation could be of force unless accompanied by an actual blockade. The law of nations was "perhaps more clear on no other

1 Document 44, p. 237.

2 Document 45, p. 241.