The Neutrality Act of 1817

The first American Neutrality Act was passed in 1794.  It made it illegal for Americans to wage war on a country at peace with the United States. The thing to consider about this act of Congress is that prior to its passage, it was perfectly legal for an American citizen to wage war on his own against a country that the United States was not at war with. The constitution provided that the Federal government under its commander-in-chief, the President, would not be allowed to wage war unless Congress issued a declaration of war. But all the rights not granted to the Federal government were reserved to the states and to the people. So while the president of the United States was bound to remain neutral in all matters, unless Congress voted otherwise, each individual American was allowed to conduct his own foreign policy.

Take a deep breath and think about what this means. American citizens prior to 1794 were considered autonomous. They could make war on other countries in order to pursue their own interests. And, indeed, many Americans were privateers with letters of marque from foreign countries, such as France, and earning a good living by helping others in their wars against the great international empires such as Britain and Spain.

What happened in 1794 to change all that? In 1794, under the administration of George Washington, the United States signed the Jay Treaty with Britain. The Jay treaty was the brainchild of Alexander Hamilton, and it was hotly contested by the Jeffersonian-led Democratic-Republicans, who feared that this was a return to old world aristocratic tendencies and the rule of tyranny.

The other thing that happened in 1794, which I might as well also mention, was the reign of terror of Maximilien de Robespierre and his Committee of Public Safety in France. After the French revolution, Jacobins had taken over France. It was off with everybody's head and a complete deterioration of all civilized things, including private property.

Britain did not want this general lawlessness to spread to England, and George Washington and Alexander Hamilton agreed. So they decided to tie the hands of American privateers who were still working for France. They also thought this would be a good time to repudiate the American war debt to France, since, after all, that promise was made to the French monarchy that helped to free American Colonies from Britain and not to those lawless  Jacobins currently in power.

The Jay Treaty cleared the way for the Quasi-War with France under John Adams, an undeclared war that served British interests and helped the United States renege on the American promise to repay its war debts to France. During the Quasi-War with France, the president of the United States ignored the constitutional provision that required him to get clearance from Congress before starting a war. Meanwhile, the Neutrality Act, far from creating neutrality was used to make sure that no individual American fought for a side in any war that the president did not want him fighting on.

Just like the Committee for Public Safety in France, that did anything but insure public safety, the Neutrality Law was named the very opposite of what it did.

But our subject here is not the Neutrality Act of 1794. Our subject was the Neutrality Act in 1817. The original Neutrality Act was superseded by this new act that also mentioned the unrecognized governments of newly liberated Latin American countries as additional powers that American citizens were not to help anymore. Henry Clay called this an "Act for the benefit of Spain against the Republics of South America." The act prescribed penalties of three years imprisonment and three thousand dollars in fines.

Far from breeding neutrality, all these laws collectively were used to tie the hands of American privateers and to help the great empires of Britain and Spain to hold on to their dominions. But much more importantly than this, the Neutrality Act was used to subdue the independent spirit of American businessmen, who henceforth would need the permission of their government to conduct business abroad and to defend their foreign holdings.

When Jean Laffite was routed out of all his holdings in both Barataria and Galveston, this disempowerment did not happen to him alone. It happened to all Americans, who became more like subjects and less like citizens under a government that took on itself more and more power. In order to pursue its own dreams of empire, the United States government under James Monroe wanted no competition from private citizens in the international arena.

What's Wrong with the Neutrality Acts of 1794, 1817 and 1976?

A neutrality act sounds on its face like a good thing -- an expedient that helps to prevent war. If a neutrality act actually prohibited the government of the United States from waging war without the consent of congress, and by extension, the American people, then it would be an innocent enough thing, and it would not add much to the requirement that the executive branch of the government should not wage war without the consent of the people through their elected representatives in Congress. But like many a mislabeled legislative package, the various neutrality laws that the United States has enacted over the years are not there to limit the government in its subrosa activities in waging clandestine or unauthorized war. Their purpose is to tie the hands of United States citizens. Instead of making the government practice a studied neutrality while Americans abroad can act as they will, the so-called neutrality laws are there to penalize ordinary Americans from acting against governments that the United States government has decided to support. That is not neutrality. That is partisanship on the part of the government! It is granting the United States government a monopoly on the right to defend American interests abroad, and it is tying the hands of citizens in their own business outside the territories of the United States.

The first neutrality act was passed by the United States Congress in 1794 under the administration of  George Washington. The continental congress had had a treaty with France, but in 1794 the Jay Treaty with Great Britain was ratified. France accused the United States of violating its treaty with them, because Great Britain and France were at war. Many Americans at the time were privateers, supporting the French Republican government. The French ambassador to the United States had been actively recruiting American privateers to fight against Spain and Great Britain, the enemies of France. All of a sudden, it was illegal for Americans to ply their trade as privateers in service of a country that had helped support their own revolution and brought about their independence!

Now one might argue that if such a policy brings about peace, the financial interests of the American privateers should be sacrificed in the name of absolute neutrality. But no such thing happened. Instead, during the administration of Washington's successor, the Federalist John Adams, the United States entered into a Quasi-War with France.

USS Constellation vs L'Insurgente -1799

from the Wikipedia

What is a Quasi-War, we may well ask? It means a war that is waged without a declaration, without ratification by Congress and by extension without the consent of the American people.

This undeclared war went on until 1800 when a peace was signed, and it was largely due to this war that Adams did not win reelection. In 1800 Thomas Jefferson and Aaron Burr won the election under the Democratic-Republican ticket. Unfortunately, their election did not lead to a repeal of the Neutrality Act of 1794, which Jefferson used against Burr in his trial of 1807. Unable to find  the civilian Burr guilty of treason because of his projected private expedition against New Spain, Jefferson did succeed in pinning him with a misdemeanor under the Neutrality Act.

And in order to keep the United States safe from the depredations of Britain, after the end of the Quasi-War with France, Jefferson resorted to the expedient of the Embargo Act. Now, not only were American citizens prohibited from waging war against other countries -- they were not even allowed to engage in international trade, because they could not defend themselves and there was no one else to defend them.

So we went from a constitution that limited the government from waging war without the consent of the people, but allowed citizens to possess any weapon for the purposes of a well-regulated militia so that the people could wage war on their own to a situation where citizens were completely disarmed in defending themselves on the open seas or even venturing forth for purposes of trade.

The constitution limited the government but left unlimited powers and rights to each citizen. But the new laws were used to do the exact opposite. This state of affairs led directly to the War of 1812. Unable to defend themselves, under the administration of James Madison, the people allowed Congress to ratify a declaration of War against Great Britain. Allowing the government to have a monopoly on waging war will always lead inevitably to war.

Who helped  the United States win that war? Privateers and smugglers acting in contravention of both the Neutrality Act and the Embargo Act. Privateers who asserted their second amendment rights to wage war, despite unconstitutional legislation. The arms they bore were not limited to muskets. They had cannons and warships, too.

If we want to understand how Neutrality Acts lead to war, and how a monopoly on waging war violates the rights of citizens under the constitution to defend themselves, then a good place to start might be with Theodosia and the Pirates.

This information is as applicable today, as it was in the 1800s. If there are interests of United States citizens that need defending abroad, hadn't we better let those citizens defend those interests with every means at their disposal, while keeping our government neutral? Let's repeal the Neutrality Act once and for all, so that we can have peace, while those who wish to wage war to defend their own interests can do so at their own expense.