hopeful one unless this desire finds expression in a practical effort to remove causes of misunderstanding and to seek ground for agreement as to principles and their application."

In any event, it is a heartening spectacle to see a return to the old order of things; a conference of nations called in peace to consider the ways in which peace may be conserved and war averted, and meeting in peace and in an atmosphere of peace.

It is assuredly the part of wisdom to take counsel of the immediate past to apply to the problems of the present the principles which have proved efficacious in the past; to build upon the foundations of the past with a defter hand and in a more generous and chastened spirit. The temple of peace is still in the distance; and the approach to it runs through conferences like the two which have already assembled at The Hague.

THE UNITED STATES AND THE LEAGUE OF NEUTRALS

OF 1780

BY WILLIAM S. CARPENTER

Princeton University

The idea of a league of nations is one with which the United States has been familiar since the very beginning of its history. The form in which it first appeared to this country was in the Armed Neutrality of 1780. The purpose of this league, which has sometimes been called the League of Neutrals, was the protection of neutral trade. Having its origin at the court of Catherine II, Empress of Russia, the Armed Neutrality set forth a body of rules respecting the freedom of commerce in time of war which must prove highly favorable to the United States when that country, in a future conflict, should change its status from that of a belligerent to that of a neutral. It is not surprising, therefore, that the inclusion of the United States among the membership of the league which the Tsarina was forming to enforce these principles was not without its advocates.

The United States had already occupied a most advanced position with respect to the maritime rights of neutrals. To maintain free intercourse with the countries of Europe amid their inevitably recurring wars was recognized to be a primary interest on this side of the Atlantic. Clear distinctions between the maritime rights of neutrals and those of belligerents were asserted from the outset and adhered to with remarkable consistency, despite many temptations to turn aside for temporary advantage.1

At the beginning of the American Revolution the colonists appreciated that to cope successfully with the maritime power of Great Britain they must resort to reprisals on the sea. As early as November, 1775, the Continental Congress recommended to the legislatures of the colonies the establishment of courts to determine cases of capture. From the decisions of these tribunals, "appeals were to be allowed to Congress, or to such persons as they may appoint for the trial of appeals." 2

Courts were established in all of the States and, except in New York

1 For a study of the American attitude towards capture at sea, see H. S. Quigley, this JOURNAL, Vol. 11, pp. 820-837.

2 Jour. Cont. Cong., III, pp. 373-374; J. C. Bancroft Davis, Federal Courts before the Constitution, 131 U. S. Reports, Appendix, p. xxi; Jameson, Essays in the Constitutional History of the United States, p. 11.

where the maritime counties remained in the hands of the enemy, continued active throughout the war. But in many of the States the right of appeal was curtailed by statute. The legislatures of New Hampshire and Massachusetts insisted that only in cases in which the capture was made by an armed vessel fitted out at the expense of the United States should an appeal be allowed to Congress. In all other cases the right of appeal lay to the supreme court of the State. This jealousy on the part of the States would have led to unfortunate results had not the acts been annulled to permit a right of appeal to Congress in all cases of maritime capture. As a matter of fact, Congress found cause to complain that the curtailment of the right of appeal "has a very dangerous tendency to interrupt the peace, safety, and union of the United States, and is in direct violation of the resolve of Congress which grants an appeal in all cases. To quiet any possible dissatisfaction with the character of the appellate tribunal, a permanent court of appeals in cases of capture was established by Congress on January 15, 1780.7

6

Not less unsatisfactory than the limitation upon the right of appeal was the establishment of trial by jury in the prize courts. If the former militated against uniformity in the administration of the law, the latter often resulted in positive denial of justice. A superficial glance at the records of the cases decided in the Pennsylvania court in 1776 will show how willing patriotic juries were to condemn to the captors when there was the slightest evidence that the ship or cargo was hostile. But "the temper of the people was such and so greatly were they enraged at the corruption of former admiralty courts, that a court of this species without a jury would have met their universal disapprobation." 9

It was not long before the inability or the refusal of the juries to pass fairly and intelligently upon the facts in prize cases attracted the attention of Congress. In January, 1780, it was resolved "that it be recommended to the States to authorize the courts of admiralty therein. . . . to decide without a jury in all cases where the civil law, the law of nations, and

3 In 1776, when a court could not be conveniently convened in New Jersey, the legislature by statute proceeded to condemn a vessel “said to be British property," which had been captured by the militia. Laws of N. J., 1776, p. 17. The New York Provincial Congress, on June 28, 1776, appointed a committee to take charge of prizes until condemnation. Am. Archives, Ser. 4, VI, p. 1435.

4 Davis, 131 U. S. Reports, Appendix, p. xxiii; Penhallow v. Doane, 3 Dallas 54.

5 Acts and Resolves of the Province of Mass. Bay, V, p. 1077.

6 Jour. Cont. Cong., XII, p. 1023.

7 Ibid., XVI, pp. 61-64.

The

8 MSS. in the office of the Clerk of the U. S. District Court at Philadelphia. case of McAroy v. Thistle and Cargo is especially in point. The judgment of the State court was promptly reversed by Congress. The case of Griffin v. Sloop George, condemned in the New Jersey court in 1778, was of the same character. Jennings v. Carson, 4 Cranch 2.

9 Austin, Life of Elbridge Gerry, I, p. 313.

the resolutions of Congress are the rules of their proceeding and adjudication." 10 Pennsylvania led the States in the repeal of the statutes authorizing trial by jury in the prize courts, enacting on March 8, 1780, a new admiralty law which left the determination of such causes to the judge.11

Obviously the interests of neutral trade would have been best served by a strict adherence to the principle that "free ships make free goods." This rule had been growing in favor since the middle of the seventeenth century, especially among those nations having small naval forces. But in 1776 the principle was one of conventional stipulation, and not a rule of international law.12 Nevertheless, Congress in its draft of a plan for treaties to be made with neutral Powers included the principle that "free ships shall make free goods," together with the converse proposition, that "enemy's ships shall make enemy's goods." That there were limits beyond which the principle that the flag covers the cargo would not be urged is evident from the marginal note by James Wilson: "This to be obtained if possible; but not to be insisted upon so as to break off the treaty."' 13

The rule, however, suited the interest of France, with whom the United States was to frame its first treaty. The two maxims became Articles XIV and XXIII of the treaty of amity and commerce, concluded on February 6, 1778.14 They were proposed six months later to Holland, and thereafter formed a rule which the United States sought to incorporate in its conventional agreements.

The willingness of Congress to adopt rules which would relieve neutrals from many of the annoyances of visit and search could safely be carried out only through treaty stipulations. The adherence of Great Britain to the rule of the Consolato del Mare, that enemy's goods in neutral vessels might be seized while neutral goods on board vessels of the enemy should go free, was an obstacle to the adoption generally of the less rigorous principle. In the resolutions of Congress and the decisions of the prize courts of the States, neutrals continued to receive the same treatment accorded them in the admiralty courts of Great Britain.

10 Jour. Cont. Cong., XVI, p. 62.

11 Hopkinson: Miscellaneous Essays and Occasional Writings, III, p. 24.

12 Manning: Law of Nations (ed. Amos), pp. 325-337; Phillimore: Commentaries (3rd ed.), III, p. 335 ff. In 1752, Frederick II of Prussia, in the Silesian Loan Controversy, contended that the principle of "free ships, free goods," must be admitted as a rule of international law, but this was successfully controverted by the British commissioners. Martens, Causes célébres, II, pp. 1-88. The best discussion of this subject is to be found in Ward, Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs (London, 1801), pp. 1-172. Practically all the later English writers have simply restated the position occupied by Ward. For an attempt to establish the principles of the Armed Neutrality as rules of international law, see Barton, Freedom of Navigation (Philadelphia, 1802).

13 Jour. Cont. Cong., V, pp. 581, 585.

14 Martens, Recueil des Traites, II, pp. 594, 597.

Early in 1776 privateering was authorized by Congress, and on October 14, 1777, it was resolved "that any vessel or cargo, the property of any British subject, . . . brought into the harbors of the United States

be adjudged lawful prize." 15 Privateering flourished, and there were few days upon which the judges of the courts of admiralty were idle. In less than two years, Timothy Pickering in Massachusetts condemned over 150 vessels, and the convenient harbor of the Delaware saw many captured vessels drop their unwilling anchors to await the action of Judge Ross at Philadelphia.16

Although the legitimate interests of neutrals commanded the respect of Congress, the captains of privateers on occasions transgressed the law. The career of Captain Cunningham was notorious on account of his irregularities. In 1777 he seems to have contented himself with the capture of British vessels.17 But in 1778 he molested a number of Portuguese vessels, nearly embroiling the United States with the court of Lisbon.18 In November of the same year, in command of the Revenge, he captured a Swedish ship bound from London to Teneriffe with a cargo of Spanish property. This action gave great offense to Spain, and Captain Cunningham was forbidden entrance to the ports of the kingdom. Arthur Lee assured the Spanish ambassador at Paris in this instance "that, upon its being made to appear in the admiralty courts in America that the property is neutral, it will be restored, with such damages as are just.

19

These derogations from the instructions of Congress met with the immediate disapproval of the American Government. The captains of armed vessels were warned to respect the rights of neutrals, and to conform to the requirements of the laws of nations and the resolutions of Congress.20 The same warning was repeated in a proclamation of May 2, 1780, after further protests on the part of neutrals whose commerce had suffered illegal interference at the hands of privateers.21

In the State admiralty courts, the decisions reflect the earnest desire to adjudicate in accordance with the rules of international law. The rule that neutral vessels fallen into the hands of the enemy do not lose their innocent character upon recapture was upheld in the Pennsylvania court and was approved by Congress.22 In 1780, the rule that neutral goods in 15 Jour. Cont. Cong., IV, p. 253; IX, p. 802.

16 Pickering, Life of Timothy Pickering, I, p. 79; Penna. Archives, VII, p. 558. 17 Diplomatic Correspondence of the Am. Revolution (ed. Wharton), II, p. 322; Annual Register (1778), p. 37.

18 Dip. Corr. Am. Rev. (ed. Wharton), II, p. 784.

19 Ibid., II, p. 840.

20 See instructions of the American Commissioners, Nov. 21, 1777 (Dip. Corr. Am. Rev. (ed. Wharton), II, p. 425), and proclamation of Congress, May 9, 1778 (Jour. Cont. Cong., XI, p. 486).

21 Jour. Cont. Cong., XVI, pp. 406-408.

22 Geddes v. The Golden Rose, Hopkinson, III, p. 19. The decision in this case ran counter to that of the Massachusetts court in Tucker v. LeVern and Cargo, DeValnais