1 American Historical Review, IX, 460–478.

2 Leipzig, 1871.

3 Journals of the Continental Congress, Ford edition, V, 433.

4 Ibid., 576.

5 Ibid., 813.

6 Dumont, Vol. 8, Part I, p. 345.

7 Ibid., p. 377

8 Dumont, VIII, 1, 381.

9 Sparks, Dip. Corr. Rev., II, 389, quoted by Davis, Notes, 1398.

10 Sept. 28, 1782, Dip. Corr. (Confed.), I, 34.

11 Hübner, De la Saisie des Bâtimens Neutres, 1759. The edition usually cited is that of London, 1778.

12 De Martens, Recueil, III, 24-87. Tuscany, Aug. 1, 1778, followed by the Two Sicilies, Sept. 19, 1778, the Pope, March 4, 1779, and Genoa, July 1, 1779.

13 Dip. Corr. (Confed.), I, 40.

14 Ibid., 42–44.

15 Franklin, Works (Smith’s ed.), IX, 67.

16 Adams to President of Congress, March 9,1789, Dip. Corr. (Confed.), I, 435–7.

17 Thulemeier to Adams, N. D. Dip. Corr., I, 442.

18 Adams to President of Congress, June 7,1874. Dip. Corr. (Confed.), I, 458

19 Ibid., 462. No such conflict was provided for in the Swedish treaty, nor in Article 5 of the additional convention with the Netherlands.

20 Ibid., 462–3. John Adams, Works, IX, 203.

21 Dip. Corr. (Confed.), I, 503. Similar commissions were issued by the Continental Congress to Adams, Franklin, and Jefferson to negotiate commercial treaties with Russia, Germany (Austria), Prussia, Denmark, Saxony, Hamburg, England, Spain, Portugal, Naples, Sardinia, the Pope, Venice, Genoa, Tuscany, the Porte, Morocco, Algiers Tripoli, and Tunis; ibid., 80, 501. The Prussian treaty was the only one negotiated under these commissions.

22 The same principle appears in Article 2 of the commercial treaty between Great Britain and France, 1713. Cf. also Article 14 of the treaty of peace between the same Powers, 1713; Article 17, Great Britain and Portugal, 1642; Article 36, Great Britain and Spain, 1667; Article 12, Great Britain and Russia, 1766. See Camillus (Alexander Hamilton), Defense of the [Jay] Treaty, Letter 22.

23 Dip. Corr. (Confed.), I, 81–82.

24 This contraband list antedates the treaties of Utrecht and is found without material change in the treaty between England and Sweden of 1656, Article 2, and in several other treaties between that time and 1713, as well as later. See Atherley-Jones, Commerce in War, 15, seq., for comparative lists.

25 Wharton Dip. Corr. Rev., VI, 471.

26 Franklin, Works, IX, 3, 4.

27 Franklin to Vergennes, May 5, 1783; Vergennes to Franklin, May 5, 1783. Ibid., 38–39.

28 Franklin to Hartley, May 8, 1783. Ibid., 40.

29 Mr. Atherley-Jones (Commerce in War, 388) says “The first conventional application of this practree [of delivering out contraband] appeared in the treaty of commerce between Russia and Denmark of October 8/19,1782.” It had appeared, as indicated, in two treaties negotiated before that time by the United States, and was no invention by the authors of the draft treaty of 1776. The same provision will be found in the Franco-British commercial treaty of 1713, Article 26, which was renewed February 10, 1763, and again broken in 1778 by the outbreak of war. It was a popular provision in commercial treaties between 1780 and 1856.

30 Cf. Danish declaration, July 8, 1780; De Martens, Causes CéLèbres, 2d ed., III, 278. It is an interesting coincidence that this exposition of the principles of the Armed Neutrality in 1780, the denial of the right of a neutral to allow the exportation of munitions in 1870, and Germany’s contentions as to the neutral duties of the United States from 1914 to 1917 were made by three Counts von Bernstorff.

31 Kapp, op. eit., passim.

32 Instructions to Jay, Am. State Papers, P. K., I, 473.

33 Cf. Neutral Rights, by J. F. W. Schlegel, American ed., 1801, for an examination of these.

34 De Martens, Recueil, IV, 155.

35 John Quincy Adams, Memoirs, I, 195–7. Senate Executive Journal, I, 158–9. The Senate voted, eighteen to eleven, against the motion that “there is not, in the opinion of the Senate, any present occasion that a minister be sent to Prussia.” See Wheaton’s International Law, sees. 457–470, omitted in Phillipson’s recent edition.

36 Pickering to John Quincy Adams, Am. State Papers, F. R., II, 250. Writings of John Quincy Adams, II, 188–191. We have here the adoption of the American position that the rule of the Consolato was the true rule of international law; that “free ships make free goods” was valid only when stipulated in treaties. The phrase “pretended modern law of nations” refers to the continental position based on the law of nature. The English doctrine was adopted by Marshall for the reason that “the United States, having at one time formed a component part of the British Empire, their prize law was our prize law. When we separated it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it.” Bentzon v. Boyle, Scott’s Cases, 600. Though in many respects influenced by the law of nature (as in Fletcher v. Peck) Marshall did not adopt the theory that “free ships make free goods” was based on the law of nature, as held by the continental writers. It is suggested that Marshall’s doctrine was influenced by the Federalist position from 1794 to 1799. Sir William Scott, afterwards Lord Stowell, sent to Jay, Sept. 10, 1794, a memorandum on prize court procedure, in which was incorporated a portion of the famous report of the law officers of the Crown made in 1753 at the time of the Silesian loan case. This portion set forth the doctrine of the Consolato as against free ships, free goods. Am. S. Papers, F. R., I, 494; Montesquieu characterized the report as réponse sans réplique. Vattel called it un excellent morceau du droit de gens. Law and Custom of the Sea (Naval Records Society, ed. Marsden), 11, 348 n.

37 John Quinoy Adams to Pickering, Oct. 31, 1797; Writings, II, 218,

38 Pickering to John Quincy Adams, March 17, 1798, Am. State Papers, P. R., II, 251.

39 Writings of John Quincy Adams, II, 259.

40 John Quincy Adams to Pickering, March 8, 1798. Message of John Adams, March 14, 1798. John Quincy Adams, Writings, II, 267. The French had threatened to consider every armed ship as enemy and the sailors thereof as pirates.

41 Adams to Pickering, May 12, 1798; Writings, II, 287. Adams introduced this provision into the Florida treaty, Article 12.

42 Pickering to Adams, Sept. 24, 1798. Ibid., II, 287.

43 John Quincy Adams to the Ministers of State, etc., July 11, 1798. Am. State Papers, F. R., II, 252

44 Pinckenstein, Alvensleben, and Haugwitz to John Quincy Adams, Sept. 25, 1798. Am. State Papers, F. R., II, 254

45 Adams to Pickering, October, 1798, Ibid., 253

46 Adams to the Prussian Ministers, Dec. 24, 1798, Ibid., 263.

47 Prussian Ministers to Adams, Feb. 19, 1799, ibid., 265

48 John Adams, Works, VIII, 595, 599.

49 Senate Executive Journal, I, 326–7, 337–40. Voting in the negative were Baldwin, Brown, Langdon, Mason, Nicholas, and Pinckney. Cf. Secretary Lansing to Von Bernstorff, March 2, 1916, special supplement to this JOURNAL, October, 1916, 392.

50 John Quincy Adams’s Memoirs, VII, 25.

51 Phillimore, International Law, II, 58–59.

52 Wharton, International Law Digest, II, 58. Moore, Digest, V, 319.

53 Zeitschrift für Völkerrecht, IX, 19, note; Krauel in same, 18–19; Fleischmann, in same, 172–3. Cf. B. Schmidt, Über die Völkerrechtliche clausula rebus sic stantibus, in Jellinek’s Stoats- und Völkerrechtliche Abhandlungen, Vol. VI, 25, whose statement, that international treaties are to be set aside because of changed circumstances only when the highest interest and aims of the state are necessarily involved, is quite as conservative as that of Wharton, and in striking contrast with other contemporary German writers like Heilborn and Ullmann.

54 Circular of Prussian Minister of Commerce, Aug. 16, 1861, quoted by Niemeyer, Urkendenbuch zum Seekriegsrecht, I, 22

55 Moore, Digest, VII, 469. Richardson’s Messages, VII, 87.

56 Quoted by Niemeyer, 122.

57 Niemeyer cites the appearance of the treaty in these official compilations as evidence that the United States regards them as still in force. Fleischmann says that Niemeyer’s statement has no bearing upon the question of the validity of the treaty as against Germany.

58 Kohler, Das neue Völkerrecht. See English translation and foreword in Michigan Law Review, June, 1917.

59 “The right of a belligerent to bring his prize to a neutral friend’s harbour, and even to sell her there, appears to have been unquestioned before the eighteenth century, but it gave rise to difficulties…. In 1709 a claim made by a foreign power to adjudicate upon Englishman’s prizes brought to its harbours was declared (by the High Court of Admiralty) to be unfounded and contrary to the law of nations.” Law and Custom of the Sea (Naval Records Society, 1916, ed. Marsden), II, Introd. xii, xiv.

60 The Appam case was fully discussed in the October number of this JOURNAL, 1916, 809–831. Cf. pp. 816–817.