to the Russian declaration, they did not include a statement regarding an effective blockade. They supplemented the general statement in the instructions of May 2, 1780, that commanders of private armed vessels were to "pay a sacred regard to the rights of neutral powers, and the usage and customs of civilized nations." 1

The act of Congress of October 5 also provided that the ministers of the United States, if invited, were empowered to accede to such regulations, conformable to the spirit of the Russian declaration, as might be agreed upon by the conference expected to assemble in response to the invitation of the Empress. On December 19, 1780, Congress appointed Francis Dana as Minister to Russia and in instructions of that date stated that the Russian declaration should open the way for his favorable reception. He was instructed to use every means which he could devise to obtain the consent and influence of the Empress to the end that the United States should be formally invited or admitted to accede as an independent nation to a convention embodying the principles of the declaration. This attempt of Congress to link recognition with the proposed formal adherence to such a convention failed partly because it was not the intention of the Empress that there should be a formal convention to which both neutral and belligerent powers were to accede. Furthermore, as a belligerent the United States could not adhere to the conventions between Russia and other neutral powers.

DECISION OF THE FEDERAL COURT OF APPEALS

A decision in January, 1782, of the Federal Court of Appeals shows that the resolutions of Congress of October 5, 1780, and the instructions of November 27, 1780, did actually "serve as a rule of proceedings" on the legality of prizes. Furthermore, in making the point that enemy goods, not contraband, found in neutral ships, were protected under the resolutions and instructions of Congress, the Court implied that by the law of nations the neutral flag did not protect such enemy property.

No other decisions in prize cases during the Revolutionary period have been found which add to the exposition of American policy given in documents considered in this survey.

TREATIES WITH THE NETHERLANDS AND SWEDEN

The second American commercial treaty was concluded with the Netherlands. This treaty of October 8, 1782, followed the principles of the plan of 1776 and the treaty of 1778 with France regarding

1

2 1 Document 8, p. 143. Document 16, p. 150.

Document 17, p. 151.

war-time commerce.1 The same statement permitting neutral trade between enemy ports was included in article 10 of the new treaty and it was provided in article 11 that enemy goods in neutral ships should be free, unless contraband. The contraband list in article 24 was similar except that it included soldiers. Although there was no general list of articles never to be considered contraband, it was provided that items not specifically included in the contraband list, and particularly materials for the construction and equipment of vessels of war, should not be included. Article 12 provided that neutral goods in enemy vessels should be liable to confiscation.

In the commercial treaty with Sweden of April 3, 1783, these principles were again closely followed. The provisions of article 7 regarding neutral trade between enemy ports, and enemy goods in neutral ships; those in articles 9 and 10 concerning contraband; and those in article 14 concerning neutral goods in enemy ships, were all essentially the same as they had been set out in the plan of 1776. These articles relating to neutral rights were revived by the treaty with Sweden and Norway of September 4, 1816, and again by that of July 4, 1827.

PEACE NEGOTIATIONS

The first formal presentation of unique American propositions regarding maritime trade in war was made by the commissioners to negotiate peace, to be incorporated in the definitive treaty with Great Britain. Although these two propositions made on June 1, 1783,2 were not accepted by Great Britain, they are of interest because of their later history. The first was a development of Franklin's idea for improving the law of nations, expressed in his letters of June 3 and June 5, 1780. It provided that in case of war between the two countries"all merchants or traders with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of life more easy to obtain, and more general, shall be allowed to pass freely unmolested," and that neither nation should empower private armed vessels to destroy such ships or interrupt such commerce. The second proposition was a variation of the idea presented by John Adams in his letter of April 14, 1780. It provided that in case either nation was engaged in war with any other, arms, ammunition, and military stores of all kinds carried by the ships of subjects of one of the parties to enemies of the other should not be subject to confiscation,

1Document 5, footnote 2, p. 137.

2

Document 18, p. 154.

1

but that ships carrying such goods could be detained and the military stores on them could be purchased by the captors at their full value. Congress formally ordered hostilities to cease on April 11, 1783, and in view of this change from belligerency, adopted a new position toward the armed neutrality. A resolution of June 12 1 stated that since the primary object of the resolution of October 5, 1780, and of the instructions to Dana relative to the accession of the United States to the neutral confederacy could no longer operate, and since the true interest of the United States required that they should be "as little as possible entangled in the politics and controversies of European nations," it was inexpedient to renew the powers to Dana or to the other ministers. The resolution further stated that although the liberal principles on which the confederacy was established were considered in general favorable to the interests of nations, and particularly to those of the United States, the peace commissioners were instructed, in case they should include in the definitive treaty any stipulations amounting to a recognition of the rights of neutral nations, to avoid accompanying them by any engagements which should "oblige the contracting parties to support those stipulations by arms."

Further instructions on this subject to the peace commissioners were approved by Congress, October 29, 1783.2 These instructions repeated that Congress was unwilling at the time to become a party to a confederacy which might later “too far complicate the interests of the United States with the politicks of Europe." If such progress had not already been made in the matter as might render it dishonorable to recede, the ministers were to take no further measures toward the admission of the United States into the confederacy.

No provisions regarding neutral trade were included in the treaty of peace.

THE TREATY PLAN OF 1784

Shortly after this expression of a desire to keep aloof from the politics of Europe, Congress tried a method of furthering the cause of freedom of war-time commerce which would not embroil the new nation in European affairs. A new plan for treaties was adopted on May 7, 1784, which went even farther than the Russian declaration. This plan contained the following provisions: (1) In case of war between the two contracting parties, the ordinary commerce of the nationals of either country should pass free and unmolested and Document 21, p. 157.

1 Document 19, p. 155. 2 Document 20, p. 156.

neither party should commission privateers to interrupt such commerce. This proposition was the same as one of those presented by the American commissioners on June 1, 1783. (2) In case either nation was engaged in war with any other nation, contraband goods could not be confiscated but could be purchased. This was the same as the second proposition which had been presented on June 1. A further statement provided that if the other contracting party would not consent to discontinue the confiscation of contraband goods, there should be a provision that if the master of the vessel stopped would deliver the goods charged to be contraband, he should be permitted to do so and the vessel should be allowed to proceed. (3) In case one party was at war and the other neutral, enemy goods, not contraband, should be free in neutral ships. (4) A blockaded port should be defined as one where there was "imminent danger" to ships attempting to enter or leave the port. This was the first American. statement on the subject of effective blockade.

In this resolution of May 7 Congress stated that it would be advantageous to conclude treaties with European states embodying the above principles and that it would be agreeable to have supplementary treaties with France, the Netherlands, and Sweden to bring those treaties as nearly as possible to the principles of the new plan.

TREATY OF 1785 WITH PRUSSIA

The first American treaty made after the adoption of this plan was the treaty with Prussia, signed September 10, 1785, by Franklin, Jefferson, and Adams.1 Article 12 provided that in case of a war in which one of the parties was a belligerent and the other a neutral, the vessels of the neutral party were to be permitted to "navigate freely to & from the ports and on the coasts of the belligerent parties, free vessels making free goods." Article 13 provided that "the merchandize heretofore called contraband, such as arms ammunition & military stores of every Kind," could not be confiscated but that the captor could purchase such merchandize by paying the owner its full value. Article 23 included a statement 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. Although there was included no statement as to what constituted a blockaded port, this treaty provided for greater freedom of maritime commerce in war than any other the United States has made.

1Document 22, p. 160.

THE BARBARY TREATIES

The last commercial treaty in the period of the Confederation was with Morocco.1 This treaty of 1786 provided in article 3 that free ships should make free goods, with no expressed exception of contraband, and that neutral goods in enemy ships should be free even though contraband. Similar provisions occur in the following treaties with Barbary Powers: Algiers, 1795, 1815, and 1816; Morocco, 1836; Tripoli, 1796 and 1805; and Tunis, 1797. In the treaty of 1795 with Algiers the provisions on the subject were not clearly phrased, but presumably the statements in articles 3 and 19 were intended to have the same effect as those in the other treaties.

Because of the peculiar character of these states and the rudimentary nature of their international relations, the treaties with them have very little significance in connection with the policy of the United States toward neutral commerce.