3. Of the five principles set forth, the first and fourth are relatively unexceptionable. The first confirmed the existing right of neutrals to trade with all belligerents, subject to local laws, the right of belligerents to stop and search neutral ships for contraband, and the prohibition against entering a blockaded port. The fourth was, perhaps, a more rigorous definition of a blockade than was set down by the authorities on the law of nations, but it did no more than explicitly state what was already implied (Emmerich de Vattel, The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. III, chap. 7, sects. 111–114, 117).
The same cannot be said for the second, third, and fifth articles. Their content, together with the statements in the memorial and the declaration regarding the nature of the law of nations and the means by which its provisions became established, indicated a departure from previously held theories about the law's origin. In the eighteenth century the law of nations had two distinct parts. The first, called the necessary law of nations, was founded on and indistinguishable from the law of nature; its principles were self-evident to anyone obeying the dictates of right reason. Binding on all nations, its tenets were immutable, not subject to human intervention.
The second part was the positive law of nations, which included the stipulative law or law of treaties. The stipulative law permitted modifications of the necessary law in treaties, but such alterations were binding only on the signatories. Where no treaty provision existed, interstate relations were governed wholly by the dictates of the necessary law.
The memorial and the declaration, however, implied that the Russian government expected that the adoption of the declaration's principles by the neutral powers and their observance by the belligerents would establish those principles as part of the necessary law. Such an interpretation of the two documents was furthered by the sentence immediately preceding the five articles in which note was taken of the fact that each of the belligerents had agreed, in one or more treaties, to the principles set down in the declaration and thus could not reject them “but by violating the Laws of Neutrality, and contemning the fundamental Rules, which they themselves have adopted, in divers Treaties and Alliances now existing.” This implies that a provision could become part of the necessary law, not because it was a law of nature, but rather because it was accepted by a large number of nations. No eighteenth-century authority supported such a conception of the law or envisioned any circumstance by which a treaty provision at variance with the accepted law of nature could be incorporated into the necessary law, regardless of how many nations had agreed to it in their treaties.
Art. 2 was the most controversial of the five because the doctrine that it proposed to establish—free ships make free goods—lacked any standing under the necessary law of nations and its inclusion largely determined European and American perceptions of the declaration. In the eighteenth century the established principle among writers on the law of nations was that enemy goods could be seized wherever found, while neutral property was free, even if found on an enemy ship. Indeed, when JA wrote this letter the United States observed the established rule toward neutral and enemy property, except in regard to France because of the establishment of the principle that free ships made free goods in the Franco-American Treaty of Amity and Commerce. It did not begin to apply the doctrine that free ships made free goods to neutral vessels until the adoption of new instructions to the captains of warships and privateers on 27 Nov. 1780, largely in response to the Russian declaration (
18:1097– 1098). Had the doctrine that free ships make free goods gained universal acceptance and become part of the law of nations as Catherine seemed to desire, the greatest impact would have been on Great Britain because it would have nullified the advantage enjoyed by Britain from its naval superiority. As a result, although there is no indication that this was Catherine's intention, the declaration was perceived in Europe and America as being specifically directed against Britain.
Controversy over the third article was due largely to its misinterpretation. Both the memorial and the declaration stated that the definition of contraband contained in Arts. 10 and 11 of the Anglo-Russian treaty would guide Russian actions, but that other neutrals should define contraband in accordance with their existing treaties with the belligerents. Despite this, the article was widely seen as an effort to obtain universal acceptance of the definition set down in the Anglo-Russian treaty (see, for example, JA to the president of Congress, 14 April
, No. 44, calendared, below; and JA to Edmund Jenings, 15 April
, below). Under the necessary law of nations contraband goods were defined broadly as those useful in war. Included under such a designation were arms and ammunition, naval stores and ships timbers, and even provisions in some instances. Over time, however, more limited definitions were included in various treaties, particularly in regard to naval stores, which the Anglo-Russian treaty did not list as contraband. This was significant because of the Anglo-Dutch dispute over the carrying of naval stores by Dutch ships that had reached its climax with the British interception of a Dutch convoy at the beginning of 1780 and the suspension of all provisions in Anglo-Dutch treaties relating to neutral trade in April. From Britain's perspective the universal adoption of such a list of contraband would have had much the same effect as the adoption of the doctrine that free ships make free goods, namely to reduce or eliminate the fruits of its naval superiority (De Madariaga, Armed Neutrality of 1780
, p. 172–180, 445– 446). See also Sir James Marriott's ruling in the case of La Sybellina Hillegonda
, one of the Dutch ships seized from Adm. Lodewijk van Bylandt's convoy, in JA's letter of 6 April
to the president of Congress (No. 37, calendared, above).