This single sentence states the fundamental right and the fundamental duty of every neutral state, namely, the right of every neutral state to prevent its territory from being made the scene of hostilities; and the duty of every neutral state to abstain from hostile acts. This statement expressed the policy of Washington's administration.

With reference to the historical significance of this policy, Professor Lawrence says:

These proceedings of the United States [during this period] mark an era in the development of the rights and obligations of neutral Powers. The grounds on which the action of the American Government was based are to be found in the works of the great publicists of the eighteenth century; but never before had the principles laid down by these writers been so rigorously applied and so loyally acted upon. The practical deductions drawn from them by Washington and his cabinet were seen to be just and logical, and the governments of other states followed in their turn the American example.12

In the words of another distinguished English writer, Mr. Hall:

The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. In the main it is identical with the standard of conduct which is now adopted by the community of nations.13

* * *

But it is more relevant to our present purpose to call attention to the fact that the United States, at this early date, announced the principle that should guide a neutral nation in respect to the sale of munitions of war. In his Proclamation of Neutrality, published on April 22, 1793, Washington indicated the kind of restrictions to which all trade in contraband goods by neutrals was subject by the law of nations. The words of the proclamation are

that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by cɔm

12 Lawrence, Principles, p. 483.

13 Hall, Int. Law, p. 616. It may also be noticed that Mr. Canning in 1823, in a speech before the House of Commons against the British Foreign Enlistment Act of 1819, said: “If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson."-Fenwick, Neutrality Law of the U. S., pp. 27, 28, quoted in Stockton's Outlines, p. 386.

A

mitting, aiding or abetting hostilities against any of the said [belligerent] Powers, or by carrying to any of them any of those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture. 14

Here is clearly expressed the usage of international law, as understood by Washington, that the neutral citizen who engages in the carrying of contraband goods, including munitions of war, to a belligerent, does so at his own risk, and thereby forfeits the protection of his own government. The neutral government is thus supposed to perform its whole duty by acquiescing in the punishment inflicted upon the offending citizen by the belligerent whose interest it is to prevent the carrying of such goods.

An occasion soon arose for a more definite statement of the principle involved than that contained in the President's proclamation. In this same year, 1793, Great Britain, without questioning the legal correctness of the position taken in the proclamation, ventured to suggest that it would be more expedient for the Government of the United States to prevent the exportation of arms than to expose vessels belonging to its citizens to those damages which might arise from their carrying articles of the description mentioned. To this suggestion that the United States prevent the sale of munitions, Jefferson made the following explicit reply:

Our citizens have always been free to make, vend and export arms. It is the constant occupation and livelihood of some of them. To suppress their calling, the only means perhaps of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal disarrangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent Powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned. 15

14 Text in Am. State Papers, For. Relations, I, p. 140; also in McDonald, Select Documents, p. 113.

15 Mr. Jefferson, Sec. of State, to Mr. Hammond, British Minister, May 15, 1793, Am. State Papers, For. Relations, I, pp. 69, 147; Jefferson's Works, III, pp. 558, 560; quoted in Moore's Digest, VII, p. 955.

This communication of Jefferson could hardly leave a doubt as to the policy of the United States regarding the sale of munitions of war during the great conflict then going on in Europe. But within a short time Alexander Hamilton, the Secretary of the Treasury, saw fit to issue a circular containing the following language:

The purchasing within, and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments, and military stores, is free to all the parties at war, and is not to be interfered with.16

The question may now arise whether the acceptance of the principle of international law regarding the sale of munitions approved by Washington, Hamilton and Jefferson, in the early history of our country, was not a temporary feature of the first administration; or whether, and how far, it has since been adhered to by the Government of the United States. Mr. Webster, while Secretary of State, was called upon to make a reply to the Mexican Government, which had complained of certain alleged violations of neutrality, on the part of citizens of the United States, in the supply of arms to Texas, then at war with Mexico. Said Mr. Webster:

It is not the practice of nations, to prohibit their own subjects, by previous laws, from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liability and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the Government of the United States, nevertheless, was not bound to prevent it; could not have have prevented it, without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. Such commerce is left to its ordinary fate, according to the laws of nations.I 17

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During the Crimean War, in which the allied Powers of Great Britain and France were opposed to Russia, President Pierce had occasion to

16 Hamilton's Treasury Circular, August 4, 1793, Am. State Papers, For. Relations, I, p. 140; quoted in Moore's Digest, VII, p. 955.

17 Letter of Mr. Webster to Mr. Thompson, Minister to Mexico, July 8, 1842, Lawrence's Wheaton, p. 813, note, citing Webster's Works, VI, p. 452; also quoted in Geo. B. Davis, Elements, 3d ed., p. 401.

touch upon this subject. In his annual message of December 3, 1854, he declared that

The laws of the United States do not forbid their citizens to sell to either of the belligerent Powers articles of contraband of war, or to take munitions of war on their private ships for transportation; and although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the government.

President Pierce illustrated his opinion as follows:

Thus during the progress of the present [Crimean] war in Europe, our citizens have, without national responsibility therefor, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and by France in transporting troops, provisions and munitions of war to the principal seat of military operations; but such use of our mercantile marine is not interdicted either by the international or by our municipal law, and therefore does not compromise our neutral relations with Russia.18

The Crimean War furnishes an additional instance of the persistence of the United States in holding to its previous policy in regard to the sale of munitions; and it also furnishes an example of the remarkable inconsistency of which Great Britain, one of the Allies, was guilty in this matter. Although receiving herself large supplies of military stores transported in American vessels, the British Government saw fit to charge the United States with violation of neutrality for not preventing the transportation of similar stores to Russia. In reply to this charge, Mr. Marcy, then Secretary of State, was led to administer to Great Britain a well-merited rebuke. In a communication to the British Government (October 13, 1855), Mr. Marcy said:

It is certainly a novel doctrine of international law that traffic by citizens or subjects of a neutral Power with belligerents, though it should be in arms, ammunitions and warlike stores, compromises the neutrality of that Power. That the enterprise of individuals, citizens of the United States, may have led them in some instances, and to a limited extent, to trade with Russia in some of the specified articles is not denied, nor

18 President Pierce, annual message, Dec. 3, 1854, Richardson's Messages, V, pp. 327, 331; quoted in Moore's Digest, VII, pp. 956, 957.

is it necessary that it should be, for the purpose of vindicating this government from the charge of having disregarded the duties of neutrality in the present war.

Mr. Marcy succeeds in breaking down the British contention, by showing that the Allies themselves had received from the United States supplies of contraband, including munitions of war. He says:

Private manufacturing establishments in the United States have been resorted to for powder, arms and military stores, for the use of the Allies; and immense quantities of provisions have been furnished to supply their armies in the Crimea. In the face of these facts, open and known to all the world, it certainly was not expected that the British Government would have alluded to the very limited traffic which some of our citizens may have had with Russia, as sustaining a solemn charge against this government for violating neutral obligations toward the Allies. 19

But it may still be a question whether the attitude of this government in its early history regarding the sale of munitions of war by its citizens to belligerents, has continued to be the uniform policy of the United States. That this has, as a matter of fact, been the case will be evident from a reference to the following documentary proofs:

During the French invasion of Mexico the Mexican Minister at Washington complained that the exportation, on French account, of military stores was permitted at New York. To this imputation Mr. Seward, then Secretary of State, replied (December 15, 1862):

If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to respect it as much as the United States. Commerce in that case, instead of being free or independent, would exist only as the caprice of war.20

19 Mr. Marcy, Sec. of State, to Mr. Buchanan, Minister to England, British and Foreign State Papers, XLVII, pp. 421, 424; quoted in Moore's Digest, VII, p. 957. 20 Mr. Seward, Sec. of State, to Mr. Romero, Mexican Minister, Dec. 15, 1862, Ms. Notes to Mexico, VII, p. 215; quoted in Moore's Digest, VII, p. 958.