American diplomacy, its spirit and achievements

Prefatory Note

In the present volume there is reproduced, with some revision and amplification, a series of articles that appeared in Harper's Magazine ; and one chapter — the fourth — has been added. The primary object of the work is to give, not a chronological narrative of international transactions, but rather an exposition of the principles by which they were guided, in order that the distinctive purposes of American diplomacy may be understood and its meaning and influence appreciated. Nothing could be more erroneous than the supposition that the United States has, as the result of certain changes in its habits, suddenly become, within the past few years, a *' world-power." The United States has in reality always been, in the fullest and highest sense, a world-power; and the record of its achievements in the promulgation and spread of liberal and humane doctrines is one in which no American need hesitate to own a patriotic pride.

J. B. M.

Contents

I

CHAPTER PAGE

Prefatory Note iii

II

Between 1776, when independence was proclaimed, and 1789, when the government under the Constitution was inaugurated, the United States entered into fourteen treaties — six with France, three with Great Britain, two with the Netherlands, and one each with Sweden, Prussia, and Morocco; but a majority of all were negotiated and signed in France, at Paris or at Versailles. Eight were subscribed, on the part of the United States, by two or more plenipotentiaries; and among their names we find, either alone or in association, that of Franklin, ten times ; the name of Adams, seven times ; that of Jefferson, three times; and that of Jay, twice. These early treaties covered a wide range of subjects, embracing not only war and peace, and, as did those with France, political alliance, but also commercial intercourse and the rights of consuls. Among their various stipulations, we find provisions for liberty of conscience, and for the removal of the disability of aliens in respect of their property and their business. Stipulations for the mitigation of the evils of war are 3 33 numerous. A fixed time is allowed, in the unfortunate event of hostilities, for the sale or withdrawal of goods; provision is made for the humane treatment of prisoners of war; the exercise of visit and search at sea is regulated and restrained ; the acceptance by a citizen of the one country of a privateering commission from the enemy of the other is assimilated to piracy; and an effort is made to limit the scope of belligerent captures at sea. But, prior to the establishment of the Constitution, it was easier for the United States to make treaties than to enforce ^lem. In spite of the engagement of the treaty of peace, that his Britannic Majesty should with "all convenient speed" withdraw his ''armies, garrisons and fleets" from the United States, important posts within the northern frontier continued to be occupied by the British forces; and when the government of the United States protested, the British government pointed to the refusal of the State courts to respect the treaty pledge that British creditors should meet with no lawful impediment to the recovery of their confiscated debts. For similar reasons, the act of the United States in sending John Adams, soon after the peace, as minister to the court' of St. James, remained unreciprocated.

The termination of the period of divergence and of incapacity for uniform action among the several States came none too soon. Perils were close at hand, the disruptive impulses of which the old confederation could not have withstood. They were even to test the efficacy of the new Constitution. In 1789, when that instrument was put into operation, France was in the first throes of the great revolution which was eventually to involve all Europe in a struggle of unprecedented magnitude and severity. What attitude was the United States to hold towards this impending conflict? Even apart from the treaties with France of 1778, the question was fraught with grave possibilities. For generations, Europe had been a vast battle-ground, on which had been fought out the contests not only for political but also for commercial supremacy. Of the end of these contests, there appeared to be no sign ; nor, in spite of their long continuance, had the rights and duties of non-participant or neutral nations been clearly and comprehensively defined. Indeed, so intricate were the ramifications of the European system that, when discords arose, it seemed to afford little room for neutrality. The situation of the United States was essentially different. Physically remote from the Old World, its political interests also were detached from those of Europe. Except as it might be drawn into disputes affecting the fate of existing colonies or the formation of new ones in America, it was not likely to become embroiled in European wars.

Not only, therefore, did it enjoy the opportunity to be neutral, but its permanent interest appeared to be that of neutrality; and the importance of preserving this interest was greatly enhanced by the necessity of commercial and industrial development. The new nation, though born, was yet to demonstrate to a world somewhat sceptical and not altogether friendly its right and its power to live and to grow. It was easy to foresee that its enterprise would penetrate to the farthest corners of the globe, and that its commerce, overspreading the seas, would be exposed to hazards and vexations of which the most uncertain and potentially the most disastrous were those arising from the exorbitant pretensions of belligerents. To resist these pretensions would fall to the lot of a neutral power; and upon the results of this resistance would depend the right to be independent in reality as well as in name, and to enjoy the incidents of independence. In circumstances such as these it is not strange that Washington and his advisers watched with anxiety the progress of the French Revolution, as, growing in intensity and in violence, it encountered, first, the agitated disapprobation, and then the frantic opposition of other powers. It was not till 1793, when England entered into the conflict, that the war, by assuming a distinctively maritime form, raised a question as to the obligations of the United States under the treaties with France; but, long prior to that event, popular feeling in America was deeply stirred.

Although the treaties of 1778 were made with Louis XVL, yet in the sounds of the French Revolution the American people discerned a reverberation of their own immortal declaration. From Boston to Savannah, there were manifestations of the liveliest sympathy and enthusiasm. To set bounds to this tendency, obviously would require the exercise of unusual prudence and firmness on the part of those intrusted with the affairs of government. America had fought for freedom, but her statesmen were not mere doctrinaires. Their aims were practical. They understood that the peaceful demonstration of the beneficence of their principles, in producing order, prosperity, and contentment at home, was likely to accomplish far more for the cause of liberty than an armed propagandism, which perchance might ultimately degenerate into military despotism. It was therefore important to avoid premature commitments. To a perception of this fact is no doubt to be ascribed the appointment by Washington, on January 12, 1792, of Gouvemeur Morris as minister to France. In his own country Morris had been a supporter of the Revolution, a member of the Continental Congress, assistant to Robert Morris in the management of the public finances, and a member of the Constitutional Convention of 1787. From the beginning, however, he had exhibited a distrust of the revolution in France. He instinctively recoiled from the excesses that were committed when his forebodings came to be fulfilled. Before he became minister of the United States, he offered his counsel to Louis XVL, in a sense directly antagonistic to the Revolution; and he afterwards sought to effect that monarch's escape.

Such a man could not be acceptable to the revolutionary leaders ; but he at any rate possessed an intimate knowledge of the conditions and tendencies of the time, and was not likely to commit his government to extravagant policies. Early in 1793 a new minister was appointed by France to the United States. His name was Edmond C. Genet. Of Morris he was in many respects the precise antithesis ; for, while by no means destitute of experience, he was a turbulent champion of the new order of things. According to his own account, he was placed at the age of twelve years in the French Foreign Office, where, under the direction of his father, he translated into French a number of American political writings. After spending seven years at the head of a bureau at Versailles, under the direction of Vergennes, he passed one year at London, two years at Vienna, one at Berlin, and five in Russia. At St. Petersburg, however, he fell into difficulties. Because of some of his representations, which were pitched too high in the revolutionary scale, the Empress Catherine requested his recall, and, when it was refused, dismissed him. In reporting his departure for the United States, Morris observed that "the pompousness of this embassy could not but excite the attention of England.*' What it was that called forth this remark does not appear ; but, whatever it may have been, there can be no doubt that Genet set out on his mission gurgling with the fermentation of the new wine of the Revolution; and he had scarcely left France when Morris reported that the Executive Council had sent out by him three hundred blank commissions for privateers, to be distributed among such persons as might be willing to fit out vessels in the United States to prey on British commerce.

On April i8, 1793, before this report was received, Washington submitted to the various members of his cabinet a series of questions touching the relations between the United States and France. These questions were, first, whether a proclamation of neutrality should issue; second, whether a minister from the republic of France should be received; third, whether, if received, he should be received unconditionally or with qualifications ; fourth, whether the treaties previously made with France were to be considered as still in force. At a meeting of the cabinet, on April 19th, it was determined, with the concurrence of all the members, that a proclamation of neutrality should issue, and that the minister from the French Republic should be received. On the third question, Hamilton, who was Secretary of the Treasury, was supported by Knox, the Secretary of War, in the opinion that the reception should be qualified, while Washington, Jefferson, his Secretary of State, and Randolph, the Attorney-General, inclined to the opposite view; but the third and fourth questions were postponed for further consideration. In a subsequent written opinion Hamilton argued that the reception of Genet should be qualified by an express reservation of the question whether the treaties were not to be deemed temporarily and provisionally suspended by reason of the radical change in conditions since they were formed. He also thought the war plainly offensive on the part of France, while the alliance was defensive. On the other hand, Jefferson maintained that the treaties were not "between the United States and Louis Capet, but between the two nations of America and France,** and that " the nations remaining in existence, though both of them have since changed their forms of government, the treaties are not annulled by these changes.'* He also contended that the reception of a minister had nothing to do with this question.

On April 22, 1793, Washington issued his famous proclamation of neutrality. On April 8th, just two weeks before, Genet had arrived at Charleston, South Carolina; but the news of his presence there reached Philadelphia through the public press only on the day on which the proclamation was published. At Charleston he lost no time in fitting-out and commissioning privateers ; and, after having got

THE SYSTJi:M OF NEUTRALITY

By the President of the United States of America. A PROCLAMATION.

WHEREAS it appears that a ftate ot" war exifts between Auftria, PrufTia, Sardinia, Great-Britain, and the United Netherlands, of the one part, and France on the other, and the duty and interelt of the United States require, that they fhould with fincerity and good faith adopt and purfue a conduft friendly and impartial toward the belligerent powers :

I have therefore thought fit by thefe prefents to declare the difpofition of the United States to obferve the conduft aforefaid towards thole powers refpeitivelyj and to exhort and </varn the citizens of the United States carefully to avoid all a6ls and proceedings whatfoever, which may in any manner tend to contravene fuch difpofition.

And I do hereby alfo make known that whofoever of the citizens of the ^United States (hall render himfelt liable to punilhment or forfeiture under the law of nations, by committing, aiding or abetting hoftilities againft any of the faid powers, or by carrying to any of them thofe articles, which are deemed contraband by the modern ufage of nations, will not receive the protection of the United States, againft fuch punifhment or forfeiture: and further, that I have given initruCHons to thofe officers, to whom it belongs, to caufe profecutions to be inftituted againft all perfons, who fliall, within the cognizance of the courts of the United States, violate the Law of Nations, with refpe6t to the powers at war, or any of them.

In testimony whereof 7 hwve caufed the Seal of the United States of

America to he affixed to thefe prefents^ andfigned the fame -ivith my hand.

Done at the city of Philadelphia, the t-iventy-fecond day of April ^ one thou-

fandfe'ven hundred and ninety-three, and of the Independence of the United

States of America the feuenteenth.

G°. WASHINGTON.

Th: Jefferson.

a number ready for sea, he proceeded to the seat of the national government by land. On the way he incited the people to hostility against Great Britain, and received such demonstrations of sympathy as to strengthen his confidence in the success of the course on which he had entered.

The posture of affairs between the United States and France was complicated and difficult. By the treaty of commerce of 1778, the ships of war and privateers of the one country were entitled to enter the ports of the other with their prizes, without being subjected to any examination as to their lawfulness, while cruisers of the enemy were in like circumstances to be excluded, unless in case of stress of weather. By the treaty of alliance, the United States, as has been seen, had guaranteed to France her possessions in America. For the moment, however, the situation was much simplified by reason of the fact that the French Republic did not ask of the United States the execution of the territorial guarantee. This may be accounted for by either of two reasons. The general arming of the whole population and the exhaustive devotion of the resources of the country to military purposes had caused a scarcity in France both of money and of provisions. The United States, as a neutral, formed a source of supply of both. An intimation to this effect was made by the French government to Morris not long before the issuance of Washington's proclamation of neutrality; and the same idea was strongly expressed in a report of the French Minister of Foreign Affairs, in June, 1793, in which it was said that the United States became ''more and more the granary of France and her colonies." But there may have been yet another reason. It is not improbable that the National Assembly, while balancing the advantages of American neutrality against those of the treaty of alliance, doubted whether the guarantee was precisely applicable to the conditions then existing. This doubt is suggested by the original instructions to Genet, which, although they were given before the conflict with England began, were written in contemplation of hostilities with that country as well as with Spain ; and in these instructions, which looked to the formation of a new commercial and political connection with the United States, adapted to the conditions which the French Revolution had produced. Genet was directed to bring about "a national agreement, in which two great peoples shall suspend their commercial and political interests, and establish a mutual understanding to defend the empire of liberty, wherever it can be embraced."

When Genet arrived in Philadelphia, an unqualified reception was promptly accorded him. In presenting his letters of credence, he stated that his government knew that "under present circumstances" they had a right to call upon the United

States for the guarantee of their islands, but declared that they did not desire it; in a subsequent communication, he proposed that the two peoples should, "by a true family compact, establish a commercial and political system" on a "liberal and fraternal basis." The administration, however, was indisposed to quixotic enterprises. On the contrary, it was soon fully occupied with its efforts to vindicate its proclamation of neutrality, which was constantly violated by the fitting-out of privateers, the condemnation of prizes by French consuls sitting as courts of admiralty, and even by the capture of vessels within the jurisdiction of the United States. These proceedings, in which he was himself directly implicated, Genet defended as being in conformity not only with the treaties between the two countries, but also with the principles of neutrality. When Jefferson cited the utterances of writers on the law of nations, Genet repelled them as "diplomatic subtleties" and as " aphorisms of Vattel and others." He especially insisted that, by the treaty of commerce of 1778, the authorities of the United States were precluded from interfering in any manner with the prizes brought into their ports by the French privateers. The United States, on the other hand, denied that the contracting parties, in agreeing that prizes should not be subject to examination as to their lawfulness, deprived themselves of the right to prevent the capture and condemnation of vessels in violation of their own neutrality and sovereignty.

In the correspondence to which these diiTerences gave rise, Jefferson, always perspicacious in his deductions from fundamental principles, expounded with remarkable clearness and power the nature and scope of neutral duty. Its foundations he discovered in two simple conceptions — the exclusive sovereignty of the nation within its own territory and the obligation of impartiality towards belligerents. As it was "the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits," so it was, he declared, "the duty of a neutral nation to prohibit such as would injure one of the warring powers." Hence, "no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else, directly serving for war." The raising of troops and the granting of military commissions were, besides, sovereign rights, which, as they pertained exclusively to the nation itself, could not be exercised within its territory by a foreign power, without its consent; and if the United States had "a right to refuse permission to arm vessels and raise men" within its ports and territories, it was "bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments."

Such, briefly summarized, was the theory of neutral duty formulated by Jefferson. But the administration did not stop with the enunciation of doctrines. It endowed them with vitality. Acknowledging the obligation of the government to make indemnity for any losses resulting from its previous failure to cause its neutrality to be respected, it adopted efficacious measures to prevent the future fitting-out of privateers in the ports of the United States, to exclude from asylum therein any that had been so equipped, and to cause the restitution of any prizes brought by them within the national jurisdiction. To insure the enforcement of these rules, instructions were issued by Hamilton to the collectors of customs; and on June 5, 1794, there was passed the first Neutrality Act, which forbade within the United States the acceptance and exercise of commissions, the enlistment of men, the fitting-out and arming of vessels, and the setting on foot of military expeditions, in the service of any prince or state with which the government was at peace. In due season compensation was made to British subjects for the injuries inflicted by French privateers in violation of American neutrality. "The policy of the United States in 1793," says the late W. E. Hall, one of the most eminent of English publicists, "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 on neutrals. But it represented by far the most advanced existing opin-

THOMAS JEFFERSON

I ions as to what those obligations were ; and in some points it even went further than authoritative custom has up to the present day advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations."

Against the course of the administration Genet did not cease to protest; and, while he was himself its first victim, his misfortunes may serve as a warning to foreign ministers who may be disposed to reckon upon popular support in opposing the government to which they are accredited. There was indeed in ,his case much to mislead a judgment which, no matter how honest it may have been, was not well balanced. To the superficial observer it might have seemed that there were in the United States few Americans; that the population was almost wholly composed of partisans of France and partisans of Great Britain, the former constituting a vast majority ; and that the administration, which was daily assailed with a virulence that knew neither restraint nor decency, might safely be flouted and defied. But when, convinced that the proclamation of neutrality would be faithfully enforced, Genet denounced the government for the "cowardly abandonment" of its friends, and, besides expressing contempt for the opinions of the President, persisted in questioning his authority, Morris was instructed to ask for his recall. The

French government not only granted the request, but expressed disapprobation of Genet's "criminal proceedings"; and his successor, M. Fauchet, demanded his delivery-up for punishment. This the United States refused "upon reasons of law and magnanimity." Genet maintained, and with much reason, that he had acted in conformity with his instructions, which in reality contemplated the organization of hostile enterprises in the United States against Spain as well as Great Britain. Nevertheless, he did not return to France, but settled in the United States, where he married the daughter of an eminent American statesman and spent the remainder of his days. It is only just to say that he has been the subject of much unmerited obloquy. In circumstances exceptionally trying, his conduct was ill-advised, but not malevolent. William Cullen Bryant, speaking in 1870, said that he remembered Genet very vividly, as he appeared forty-five years before, when he came occasionally to the city of New York. " He was," said Bryant, " a tall man, with a reddish wig and a full, round voice, speaking English in a sort of oratorical manner, like a man making a speech, but very well for a Frenchman. He was a dreamer in some respects, and, I remember, had a plan for navigating the air in balloons. A pamphlet of his was published a little before the time I knew him, entitled 'Aerial Navigation,' illustrated by an engraving of a balloon shaped like a fish, propelled by sails and guided by a rudder, in whieh he maintained that man could navigate the air as well as he could navigate the ocean in a ship."

The authorities of the French Republic took advantage of the request for Genet's recall to ask for Morris's withdrawal. Under the circumstances, this act of reciprocity was ungrudgingly conceded. Morris was succeeded in France by James Monroe.

The Neutrality Act of 1794, though originally limited in duration, was afterwards extended, and was then continued in force indefinitely. In order to meet conditions arising out of the war of the Spanish c9lonies in America for independence, an additional act was passed in 1817 ; but this, together with all prior legislation on the subject, was superseded by the comprehensive statute of April 20, 1818, the provisions of which are now embodied in the Revised Statutes of the United States^ A similar act was passed by the British Parliament in the following year ; laws and regulations were from time to time adopted by other governments; and the duties of neutrality became a fixed and determinate part of international law. The severest test of the system, as the ultimate standard of national obligation and responsibility, was made in the case of the claims of the United States against Great Britain generically known as the ''Alabama Claims," growing out of the depredations of the Alabama and other Confederate cruisers fitted out in British ports 4 49 during the American civil war. The government of the United States, in demanding indemnities for these depredations, could point to the precedent of 1793; but in the case of the Alabama claims the amounts involved were enormous, and the British government besides denied that it had been guilty of any neglect. By the treaty of Washington, of May 8, 1871, the question was submitted to arbitration at Geneva. The treaty declared that a neutral government was bound to use "due diligence" in the performance of its duties. The tribunal found that there had been negligence on the part of the British authorities in respect of three of the cruisers — the Alabama, the Florida, and the Shenandoah after she left Melbourne — and awarded the United States $15,500,000. For the depredations of the French privateers in 1793 the United States paid to the subjects of Great Britain $143,428.11. The amount was relatively small, but its payment, on considerations of international obligation and good faith, established a principle incalculably important, and, like the seed received into good ground, brought forth a hundredfold, and even more.

It is perhaps not generally known that the Alabama, in spite of the omission of the English customs authorities to seize her, might in the end have been detained but for an act of wifely devotion. On the 2 2d and 24th of July, 1862, evidence directly inculpating the vessel was communicated by the American legation in London to the British Foreign Office. On the 23d and 26th of July the papers were referred to the law officers of the crown, and, as the law officers had no permanent office, were sent as usual to the senior officer, who was then Sir John Domey Harding, Queen's Advocate, his associates being Sir William Atherton, Attorney-General, and Sir Roundell Palmer, afterwards Lord Selborne, Solicitor-General. Unfortunately, Sir John Harding had just then fallen a victim to an acute mental disorder, which proved to be fatal, but which his wife, in the hope that it would soon pass away, had kept a secret. Upon the decision to be rendered by the law officers there hung, perchance, the issues of peace and war and the fate of nations; but the papers lay unexamined at Sir John's residence apparently till the 28th of July, when the Foreign Office, growing anxious at the delay, but ignorant of its cause, took steps to recover them and placed them in the hands of Sir William Atherton. On the evening of the same day, Sir William, perceiving the gravity of the situation, which the papers disclosed, called Sir Roundell Palmer into consultation upon them in the Earl Marshal's room in the House of Lords. They at once agreed that the vessel must be seized. An opinion to that effect was delivered to Earl Russell on the morning of the 29th of July; but during the night of the 28th, the Alabama, as if conscious of what was impending, left the docks in which she had been lying. At ten

THE SYvSTEM OF NEUTRALITY

o'clock on the morning of the 29th she put to sea. The order of the Foreign Office to detain her reached Liverpool in the afternoon.

The government of the United States, in 1793, had barely entered upon the performance of the duties of neutrality when it was swept into the vortex of the great struggle, which was to last almost unbroken for more than twenty years, for the maintenance of neutral rights. In this momentous contest there was involved the ever-recurrent question, which will continue in some form to arise as long as wars are waged, as to how far neutral powers are required to subordinate the interests of their commerce to the hostile interests of belligerents. That powers at peace were entitled to trade with powers at war was not denied, but the rule was subject to exceptions. It was admitted that a belligerent might cut off all trade with the enemy's ports by blockading them, and might also prohibit the carriage of contraband to the enemy. For entering or attempting to enter a blockaded port, the penalty was confiscation of vessel and cargo, while the carriage of contraband entailed the loss of the prohibited articles and the freight, if nothing more. There was, however, no precise and general agreement either as to what constituted a blockade, or as to what articles were to be considered as contraband. If blockades could be legally established merely by decrees on paper, without the application of force, or if the list of contraband could be sufficiently extended, it is obvious that the right of neutrals to trade with belligerents could be reduced to the shadow of a tantalizing supposition. Grotius, often called the father of international law, had divided articles, with reference to the question of contraband, into three classes: First, articles that were directly useful in war, as arms; second, those that were useless in war ; and third, those that could be "used both in war and in peace, as money, provisions, ships, and' articles of naval equipment." Concerning the first and second classes there was no dispute, except as to the possible inclusion or exclusion of some particular article; but as to the third class there had been a long and heated controversy, especially respecting provisions.