CHAPTER II THE NEUTRALITY OF THE UNITED STATES On August 4, 1914, the President by proclamation declared the United States to be neutral in the war between Austria-Hungary and Servia, Germany and Russia, Germany and France-for although Belgium had been invaded and its neutrality therefore violated by the Imperial German Government on the morning of the 4th of August, and although Great Britain had declared war against the Imperial German Government on the 4th, the first proclamations of neutrality issued by the United States in the European war were in response to formal declarations known to have been made before the 5th day of August. As all subsequent proclamations were similar if not identical, it will only be necessary to consider and to analyze the first of the series issued because of Germany's declaration of war on the first day of August, 1914, against Russia in order to appreciate and to understand the conception of neutrality obtaining in the United States. In what may be considered the preamble to this proclamation, President Wilson declares that "the laws and treaties of the United States, without interfering with the free expression of opinion and sympathy, or with the commercial manufacture or sale of arms or munitions of war, nevertheless impose upon all persons who may be within their territory and jurisdiction the duty of an impartial neutrality during the existence of the contest"; and in the passage immediately following he declares it to be the duty of a neutral government "not to permit or suffer the making of its waters subservient to the purposes of war.' After these general statements the President proceeds to state in summary form the laws and treaties and the principles of international law which all persons residing within the United States are bound to obey in order to preserve neutrality. The provisions of the Penal Code of the United States approved March 4, 1909, declaring certain acts to be unneutral and forbidding them under severe penalties, are thus stated in the proclamation: 1 See Convention V, The Hague, 1907, Art. 7; Convention XIII, The Hague, 1907, Arts. 6 and 7; The Hague Conventions and Declarations, p. 134. 1. Accepting and exercising a commission to serve either of the said belligerents by land or by sea against the other belligerent. 2. Enlisting or entering into the service of either of the said belligerents as a soldier, or as a marine, or seaman on board of any vessel of war, letter of marque, or privateer. 3. Hiring or retaining another person to enlist or enter himself in the service of either of the said belligerents as a soldier, or as a marine, or seaman on board of any vessel of war, letter of marque, or privateer. 4. Hiring another person to go beyond the limits or jurisdiction of the United States with intent to be enlisted as aforesaid. 5. Hiring another person to go beyond the limits of the United States with intent to be entered into service as aforesaid. 6. Retaining another person to go beyond the limits of the United States with intent to be enlisted as aforesaid. 7. Retaining another person to go beyond the limits of the United States with intent to be entered into service as aforesaid. 8. Fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being concerned in the furnishing, fitting out, or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of either of the said belligerents. 9. Issuing or delivering a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid. 10. Increasing or augmenting, or procuring to be increased or augmented, or knowingly being concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which at the time of her arrival within the United States was a ship of war, cruiser, or armed vessel in the service of either of the said belligerents, or belonging to the subjects of either, by adding to the number of guns of such vessels, or by changing those on board of her for guns of a larger calibre, or by the addition thereto of any equipment solely applicable to war. 11. Beginning or setting on foot or providing or preparing the means for any military expedition or enterprise to be carried on from the territory or jurisdiction of the United States against the territories or dominions of either of the said belligerents.1 These are, in concise form, the neutrality statutes of the United States, which had been found necessary in Washington's administration and in that of his immediate successor to preserve the neutral rights of the United States against violation by belligerents, and to secure the observance of the neutral duties of the United States in 1 Official text, American Journal of International Law, Special Supplement, July, 1915, p. 195; Statutes at Large, vol. 35, part 1, p. 1088. behalf of belligerents. Reissued with slight modifications in 1818 and incorporated in the Statutes at Large in 1874, they reappear as a section of the so-called Penal Code of the United States in 1909 with but trifling changes of phraseology. From these statutes and their history the reader will understand that the United States, young as it is, has had practical experience with neutrality. It was the first country to feel the need of a code of municipal law dealing with the question of neutrality, and it was the first country to draft such a code. By its conduct as a neutral in the wars of the French Revolution in Washington's administration, it laid the basis of the modern law of neutrality. The late Mr. Hall, who cannot be classed as an undiscriminating friend of the United States, as even a casual examination of his treatise on international law will show, felt justified, or rather was forced to state in the edition published a hundred years after the event that "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. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main however it is identical with the standard of conduct which is now adopted by the community of nations."1 The neutrality therefore which the United States proclaimed in 1914 was not a neutrality born of the moment. It was the neutrality given to the world by Washington and his conscientious advisers in 1793, with such additions as subsequent experience has suggested. It was the goal of neutrality in 1793, it was the standard of neutrality in 1914. It was not devised to favor one belligerent at the expense of the other, nor was it devised to benefit one neutral nation at the expense of another. It was the neutrality which recognized belligerent duties as well as neutral rights, and which, by apt laws, sought to prevent assaults upon neutral rights and to compel the performance of neutral duties. It is important to bear these things in mind in considering the relations between the Imperial German Government and the United States when Germany was a belligerent as respects Europe and the United States was a neutral as respects Germany, in order that it may appear clear and beyond the possibility of successful contradic1 Hall's International Law, 4th ed. (Oxford, 1895), sec. 213, p. 616. tion that the neutral conduct of the United States was the conduct which the United States had itself prescribed more than a century before this war, which it had followed during a century and more after its promulgation, and which had become the accepted standard of neutrality in the world at large. In the balance of the proclamation the President called attention to certain provisions of International Law sanctioned by the practice of nations in order to render neutrality effective. Thus he declared (1) the presence of armed vessels of belligerents within the territorial jurisdiction of the United States for purposes of hostile operations or as posts of observation, or to note the entry and departure of merchant vessels of a belligerent, as "unfriendly and offensive, and in violation of that neutrality which it is the determination of this government to observe." (2) He warned the belligerents that their vessels of war should not make use of any port, harbor, roadstead, or waters subject to the jurisdiction of the United States from which a vessel of its enemy had departed until twenty-four hours after the departure of such vessel beyond American jurisdiction; (3) that any belligerent warship within or entering American jurisdiction should leave within twenty-four hours after entrance, except in case of stress of weather or need of provisions, supplies, and repairs; 2 (4) that in these exceptional cases the belligerent vessel should put to sea as soon as possible after the twenty-four hours and that the vessel should not be permitted to take on supplies beyond those required for immediate use; (5) that a war vessel permitted to remain in American jurisdiction to make repairs should depart within twenty-four hours after the completion of such repairs unless vessels of an opposing belligerent had sailed from the same port within that period, in which case the war vessel would be detained in order that it might leave twentyfour hours after the departure of the other vessel; (6) that no belligerent war vessel within American jurisdiction should take on supplies other than provisions, except such as were necessary for the subsistence of the crew, and no more coal than that required to carry the vessel to the nearest port of its own country; and (7) that, without special permission, a vessel once supplied with coal should not receive a further amount within three months from the date thereof within the jurisdiction of the United States, unless the vessel had in the meantime entered a port of the home country. The Presi1 The Hague Convention of 1907 Concerning the Rights and Duties of Neutral Powers in Naval Warfare, Art. 16; The Hague Conventions and Declarations of 1899 and 1907, pp. 213-214. Ibid., Art. 14. 3 Ibid., Art. 19. dent further declared in his proclamation (8) that the statutes and treaties of the United States and the law of nations required that no persons within the jurisdiction of the United States should directly or indirectly take part in the war, but that they should remain at peace with all of the belligerents and maintain strict and impartial neutrality; (9) and he enjoined the citizens of the United States and all persons within the jurisdiction thereof to observe the laws, to commit no acts contrary to the provisions of the statutes or treaties or in violation of the law of nations. He also warned citizen and foreigner alike that (10) while a full and free expression of sympathy, in public and private, with the belligerents was not forbidden by the laws of the United States, military forces in aid of a belligerent could not lawfully be set on foot and organized within the United States; (11) that all persons residing within the United States might lawfully manufacture and sell within the United States "arms and munitions of war, and other articles ordinarily known as 'contraband of war,'" but that (12) they cannot carry such articles upon the high seas for the use or service of a belligerent; (13) that the transportation of soldiers and officers of a belligerent upon the high seas is forbidden; (14) that the attempt to break any blockade which might be lawfully established and maintained during the war was subject to the risk of capture and confiscation by the law of nations; (15) and the proclamation closed with the statement that citizens of the United States and others claiming its protection disobeyed the statutes and treaties of the United States and the law of nations at their peril, and that they could not expect the protection of the Government of the United States against the consequences of their misconduct. It should be said, however, in this connection, that President Wilson was not satisfied with this formal expression of neutrality on behalf of the United States, which would have more than complied with international law and practice, as thus stated by the Kriegsbrauch im Landkriege: It is here assumed that neutrality is not to be regarded as synonymous with indifference and impartiality with regard to the belligerent parties and the continuance of the war. As to the expression "partisanship," neutral States can only be expected to observe international courtesies; as long as these are observed, there is no reason to interfere.' President Wilson not only wished to avoid participation in the war 'Kriegsbrauch im Landkriege (Berlin, 1902), p. 69. |