CHIEF POINTS IN THE LAWS WAR AND NEUTRALITY, SEARCH AND BLOCKADE ; WITH THE CHANGES OF 1856, AND THOSE NOW PROPOSED. DT JOHN FEASEE MACQUEEN, Esq., ONE OF HER MAJESTY'S COUNSEL. Author of "A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council," "The Rights and Liabilities of Husband and \rifc," and "A Practical Treatise on the Law of Marriage, Divorce, and Legitimacy, as admin- istered in the Divorce Cdurt and in the House of Lords." KICHMOND: W EST AND JOHNSTON. 1863. "Maritime Law iu time of war has long been the subject of dcjilora- V>lc (Ii.«putes." — Declaration <>/ the Great Pvicern at Paris, April\&, 1850. " Her Majesty's Government wi.-. Temptation to random captures 43 11. Correction of Lord Stowell's law 43 Sectiox VIII. Late Changes in (he Maritime Law of Nations. 1. The Paris Solemn Declarations 44 5. How far they bind 45 3. Privateering abolished 46 4. Effect on America. 46 5. Enemy's goods safe under neutral flag , 47 6. Lord Derby's apprehensions 49 7. Lord Palmerston's ijood auguries 49 8. Case put by Lord Derby 50 9. Answer by Lord Granville 50 10. Neutral goods safe under enemy's flag 51 11. What blockades bind by the Paris declaration 51 1 2. Variance by the Queen's proclamation 51 Section IX. Proposed Changes in the Maritime Law of Nations. 1. Ought private property to be respected at sea ?* 52 2. America always for immunity 54 3. Opinion of Napoleon 1 55 4. Lord Palmerston 56 5. What the policy of Great Britain 57 6. Opinion of the mercantile body 58 7. Report of Commons' Committee 58 8. Opinion of Earl Russell 59 9. Conclusion 60 * Protocol as to mediation to prevent war 53 CONTENTS. IX Section X. POSTSCEIPT. Showing the present state of sentiment in the House of Com- mons, as to securing an immunity for all private property at sea, during hostilities. PAOE 1. Opinion of Mr. Horsfall 61 2. the Attorney-General G2 3. Mr. Liddell G3 4. Mr. B. Cochrane 63 5. Sir G. Bowyer ; . 63 G. G. C. Lewis 64 7. Mr. Baring 65 8. Mr. Lindsay G6 9. the Lord Advocate 67 1 0. Sir S. Northcote 6 7 1 1 . Mr. Gower 69 1 2. Mr. Cave 69 1 3. Sir F. Goldsmidt 69 1 4. Lord IL Vane 70 15. INlr. Buxton 70 1 6. Mr. Newdegatc 70 , 1 7. Mr. Massey 71 1 8. Mr. Bentinck 72 1 9. Mr. Bright 72 20. the Solicitor-General 74 21. Mr. Walpole 79 22. Lord Palmerston 80 23. Mr. Disraeli 81 CONTENTS. APPENDIX PAGE The Paris Solemn Declaration of April, 16, 1856 82 The Queen's Proclamation, 13th May, 1861 8-1 Sir Roundel! Palmer's Speech on the Effect of the Queen's Proclamation 87 The Queen's Waiver of Right on the Eve of the Russian "War, 28th March, 1854 92 Sir William Molesworth's Speech on the Neutral Flag 93 Index 97 CHIEF POINTS IN THE LAWS OK" WAR AND NEUTRALITY ETC. The Law of I^Tations during wai' has many ad- mirable propositions, which we trust will never be disturbed. It has also some questionable max- ims. These last must be examined with rever- ence, but with freedom. My purpose is to state shortly the chief points, to put forward here and there a suggestion, and to leave to the reader's judgment the decision. I begin w^ith the rules which ought to govern belligerents in their enem3^'s country. The other divisions will be taken in the order of the preced- ing table. S E C T I N L Belligerents in the Enemu's (huntnj. 1. In ancient times an invading army, to in spire terror, souglit the earliest oppor- tunity of displaying its severity. The J'nor'inaJ slaughter of those who held out was vin- ^'^"'^^""• roved innocent in pro]>ortion to its crnelty.* 2. Vattel. tlie great authority of the last cen- tury, enjoins leniency and forbearance. f.XTranro" ilc dcnounccs tlic laying waste of the no« enjomt . j ).^|.^^| j^j^^^ \^y Turcnnc. And the truth is that cruelty, pillage, and marauding, though practised largely in the iirst Napoleon's wars, have no sanction from any modern jurist. 3. Our illustrious Duke of Wellington pun^ ished all predatory aggressions commit- Tu^iiinSon-s ted by bis troops. f He made them pay xMso piai ICO. ^1^^^-^. ^y.^y^ Tlic protcctiou of thc inhab- itants from wanton injury he considered a high duty, and, for evident reasons, the best policy. The French more than once. felt, to their cost, the effects of an opposite line of conduct. 4. When Count Diebitsch with his Russian army entered Roumelia, in 1829, he gave iTchLcu-H a shining example of military clemency. rxump .-. j^^ assured the Mussulmans that they should be safe in their persons and property ; and that he would not disturb either the exercise of their religion, or the course of their civil admin- * England and Franco under House of Lancaster, p. 206. -t The proof of this is everywhere; but chiefly in his advances into France, in spring }><\4. and to Paris, in July, 1815. Sec Sir Archibald Alison '? groat work. BELLIGERENTS IN THE ENEMY'S COUNTRY. 3 istratioii ; but lie required them to deliver up their arms, as a deposit, to be restored on the return of peace. 5. The conduct of this humane Russian com- mander harmonizes witli a benignant doctrine stated by an illustrious writer: UnisSant^ "Upon the taking of a town, or the sub- jection of a province, it is usual among civilized nations to afford protection and full security to the inhabitants ; and such of them as do not choose to live under the new government are allowed a reasonable time to dispose of their lands and effects, and to depart in all safety."* 6. In the Italian war of 1859, remarkable for the enormous bodies of troops assembled, ^ Italian war "we are told that the two hostile armies of isoo, passed over the richest plains in Europe, leaving behind them little trace of their presence, except on the actual battle-fields. "f 7. Marshal Brune, a jurist, and a man of litera- ture before he became a soldier, stated to ,, . , the Duke of York, in 1799, during an ,^;:;"'^;',.^,;/; armistice in Holland, "that if the duke '^Sllv^^^^^^ should cause the dikes to be destroyed, »"^'^»'"i'»^«8- and the country to be inundated, when not use- ful to his own army or detrimental to the enemy's, it would be contrary to the laws of war, and must draw upon Kim the reprobation of all Europe. "{ * Dodsley's Annual Register, 1772, p. 37, drawn up by Mr. Burke. t See an able pamphlet on '* Maritime Capture, by a Lawyer," Ridgway, 1862. X 1 Kent's C'uium. 92. 4 BELLIGERENTS IX THE ENEMY S COUNTRY. Tlie proposed exploit, if the story be true, was in imitation of Louis XIV's accom]>lis]ie(l one, which procured for that king, as Voltaire says, the "de- plorable glory of having destroyed one of the master-pieces of human industry." 8. The destruction of the vines and fruit-trees in Afghanistan, a serious injury to that ofTiiVosan" country without any corresponding ben- in"Afiiian- ofit to thc iuvadcrs, was undoubtedly a l)reac]i of the laws of war. 9. In bombarding Odessa, the English and French powers did their best to save .^fTranaVil" tlic grauaHCs, uot mcrcly from consid- erations of humanity, but also from a regard to the law of nations: every country in Europe deriving benefit from those stores. This ground was expressly taken by the Emperor Nicholas, when he complained tliat factories, wareliouses, and shops had ])een destroyed. 10. We can understand why private property, instruments of husbandry, and every ar- of fortBa'nd ticle of a pcaccful character, and more especially, why churches, temples, libra- ries, pictures, statues, and public monuments are invariably spared in war. But liow as to fortified places and military stores? The case of Almeida raises tliis question. There General Brienne, liav- ing determined to cut his way through the British besieging forces, determined also, as a prelimi- nary, to destroy tlie fortress, witli all its military stores. This double operation he executed with an ability and success commetided by Colonel BELLIGERENTS IN THE ENEMY S COUNTRY. O ISTapier.* But General Sarrazin, in his history of the Spanish campaign, expresses an opinion that the destruction of the fort and stores of Ahneida was a viohxtion of the laws of war. We should have thought that it was a laudable achievement, otherwise it would seem that the common practice of spiking artillery is inde- fensible. 11. But what shall we say as to the late opera- tion at Charleston? The Stone Fleet, if chariosh.n intended to be a permanent impediment «to"«fl'^et. to commerce, may justly be regarded as a world- wide injury, and consequently a breach of the law of nations. 12. During Queen Anne's wars a French priva- teer seized the workmen employed in lq^j^xiv erecting Rudyerd's Lighthouse on the ^ddystone Eddystone Rock, and carried them oif as Lighthouse. prisoners; but Louis XIV immediately ordered their release, bestowed on them presents, and sent them back to their duty, declaring that "although he was at war with En Hand he ..was not at war with mankind." 13. Dr. Phillimoret tells us that at Sebastopol "the Enirlish jj^eneral refused to abstain „ ., from firing upon a particular quarter said IvomoiTand to be inliabitcd by women and children, •^'^''•''«"- but he offered them a free passage beyond tlic lines of the army." * See Napier's Peninsular War. f Int. Law, vol. iii, p. 1 12. 6 BELLIGERENT? IN THE ENEMYV COINTRY. 14. Tlio old rule was that prisonerR of war be- Pruoners caniG tlic slavGS ot' tliG victoi% who liad of war. ^ii^ power of life and death. At Rome the more distiiiiruished were reserved for the triumph, and l)utc'hered afterward. Contrary cases are mentioned as wonders. In tlie days of cliivah'y the hope of ransom ah)ne caused quarter to be given.* Tlie vanquished Sultan Bajazet was carried about in a cage.f Bynkerslioek, the great jurist, writing not far I'rom our own time, defends the lianging of prisoners. But in mod- ern warfare between Christian nations mercy is sliown, and everything done to soften the mishap of a brave enemy. Tins ap})ears on both sides in the Crimean contest. At the battle of 8ol- ferino, the Emperor of the French gave orders that the wounded Austrians should be treated precisely as if they were his own soldiers. ♦See Henri/ V, Act. iv, scene 4, where Pistol exacts "egregious ransom," under the last penalty. f The disputed cruelty of Timour — a savage and an infidel — was surpassed by the authentic and more recent cruelty of a renowned Christiiin prince, Bedford, the brother of Henry V, under whoso aus- pices Joan of Arc — a prisoner of war in the truest sense of the phrase — was exhibited to the populace in an iron cage on her way to Rouen, where she was burnt alive. The story is too shocking to read. The excuse is that Joan was considered a sorceress. Lord Brougham, in the excellent l)ook already cited, shows that the French were more to blame in this allair tliaii the English; pp. 221 to 2U7. BELLIGERENTS IN THEIR OWN COUNTRY. 7 Section II. Belligerents in their own Country. 1. Let us next inquire, how far during war is a government entitled to destroy, or niuti- late its own terntory, and the property of destruction of uronprtv individuals thereon? Yattel thinks that by i*»'ter - . the Great. even here there is a limit.* He is of opinion that the policy of Peter the Great, who laid waste eighty leagues of his empire in order to arrest the progress of Charles XII, could he justi- fied hy nothing short of an imperious necessity. 2. So, on the French jurist's authority, we may lay it down that the course taken by Al- exander required the like excuse, when i)erorAk"x- he made a desert, and fired Moscow for the reception of Kapoleon. Such violent reme- dies, even though defensive, are not often to be resorted to. Vattel holds that a prince who with- out the strongest grounds should imitate the ex- ami)le of Peter the Great, would be justly culpa- ble in the eyes of his own countrymen. Whether other nations might complain he docs not say. 3. In 1573 William the Silent cut the dikes round Lcyden, then besieged by the By wiiuam Spaniards. The land was laid under *''*' '^"'■"^• water, and the crops were swallowed up. It was an extreme step, but justified by necessity and by success. The tide destroyed the besieging army, and brought up tlie Zealand fieet laden with pro- *Lib. 3, c. 9, g 167. 8 BELLIGERENTS IN THEIR OWN COUNTRY. visions for t]ie limnshinu; inluibitants. Thus Lev- den was saved. 4. [N^early two centuries before, when tlie du- Ry .Tac.po ties of bellitj^eren ts in their own country di-iAornu-. yyQY^^ \q^q uudcrstood, or less attended to tlian in the days of William the Silent, Jacopo del Verme, ai)parently w^ithout necessity, and certainly without success, cut the dikes of the Adige, in the hope of destroying tlie Florentine arni}', commanded by Sir John llawkwood ; but that skilful leader eltected a retreat, without ma- terial loss, leaving the Milanese to deplore their useless sacrifice of territory.* 5. An injury to ourselves may be an injury to others. If, when the Ensilish and Vindictive ' ° , (K'stiiiction J rench bombarded Odessa, the Russians of propeity. had vindictively destroyed its corn-mag- azines, a question might have arisen whether such an act was not contrary to the laws of war. 6. Suppose a dangerous sea-coast, extended ,,. ,. . hundreds of miles, with only one har- Vindictive "^ closing of |)or. Are we to entertain a doubt that harbors. the world at large has a right to exact the benefit of that harbor? The owners of the soil have but a qualified property in it. This ex- treme case tries the principle, and shows its irre- sistible authority. We cannot always do what we will with our own. 7. To defend an unfortified mercantile town, * Poggio Bracciolini, Ilist. Florent. ; Sismondi, Hist, Rep. Ital. BELLIGERENTS AT SEA. 9 completely invested by the enemy, has ^ "^ 111 V Defence of been held a breach ot the laws or war, me.eautiio towns. because such a case is one for honorable surrender — to prevent useless carnage and the un- availing destruction of property. 8. On the 30th August, 1759, the Austrian forces, havins: finally established their . 1 -T^ 1 Defonce of batteries around I3reshiu, sent a mes- fortified . towns. sage to Count Tavenzien, who com- manded the town, reminding him that as it was a mercantile place, not a fortress, he could not defend it without contravening the laws of war. The count, in the character of a military juris- consult, admitted the law, but denied the fact; affirming that "Breslau, being surrounded by military w^orks and wet ditches, was a place of strength, and not merely a mercantile town.* lie therefore called upon the Austrians to do their worst. Section III. Belligerents at Sea. 1. We should liave expected that the liumane and just principles applied to property c^^,^^,^ ^{ on land would also be applied to prop- l'Z\ll\'^\ erty at sea. But this is not so. On ''* ''"'^'• the contrar}^ all property, public or private, be- longing to the enemy, if found in an enemy's * Dodsloy's Anuual Register, 17G0, p. IS, drawn up l»y Mr. Rurkc. 10 BELLIGERENTS AT SEA. sliip at sea, or in port atloat, is liablo to capture. In otiier words, wliat is proliiltitod on lar.d is per- fectlv all()\val)le, and is in hict prescribed as a du- ty, at sea.* li. Rnt even at sea we are not to appropriate or to destroy the enemy's i)ro]torty, hrcri ture ini- mdnu : there must be an ad udication. prHcticuMe. _ _ ^ ^ ii.stiuctiuii Hence, it is a viohition of tlie maritime code to burn merchant sliips instead of taking them to a prize court. At the same time it is to be remembered tliat the captors may not always be aide to take the ship into port. In such a case, Lord Stowell said that the "captors could not, consistently with their general duty to their own country, or indeed its exjjress injunc- tions, permit enem^-'s property to sail away un- molested — if impossible to bring in, their next duty is to destroy it."t There are other authorities to the same effect. Indeed, Dr. Lushington, in "The Leucade,"J lays it down that "the destruc- tion of a vessel under hostile coloi's is a matter of duty;" and that "the bringing of an enemy's ves- sel to adjudication is not called for by any respect to the right of the enemy proprietor." 3. Still, the question remain* — on what princi- *" The iiH)ffi'n.sivc incrcanfilc mariners navigating the vessel, and all others on board (being of the hostile nation), are on capture of the ship made prisoners of war, and, if necessary, put under hatches. Soniitiines they are haiidcuficd ; but it is not usual (according to the mildness of modern practice) to put tliem in irons, though on a late occasion this was done. t2 Dodson, 381. X 2 Spinks Ecc. & Adm. 2;il. BELLIGERENTS AT SEA. 11 pie of justice is tlie property of peaceful ^i,„.i„e merchants liable to capture at sea, while S'icaTed the very same property, beloniriiig to the ^•vj""^^*'- very same individuals, if found on land, would be treated with forbearance? The jurists do not ex- plain why this sliould be. Chancellor Kent* tells us "that there is a marked difference in the rights of war carried on by land and by sea;" adding that "the object of a maritime war is the destruc- tion of the enemy's commerce and ruivigation, in order to weaken and destroy the foundation of his naval power;" but that "the nsage is not to touch property on land without making compensation." lie assigns no reason for the distinction. It is scarcely a satisfactory solution to say that the general use of maritime insurance casts losses at sea on those who by contract are bound to sustain them. 4. An eminent statesman, f after observing that "by land we should think it disgraceful i« 1 ^ Ojiiiiion of to seize the property ot peacetul persons, loki ciar- even subjects ot the enemy, adverts to the difference of the rule at sea, and declares that there is no assignable reason for tlie distinction, "except, perhaps, that acts committed at sea are less under observation than those committed on land ; and the force of opinion is, consequently, less brought to bear on the former." * Vol. i. p. 107. See also "Whoaton's EUnuiit.^^, p. 420, and Ifannard, 14 July, 1S57. where Lord John Rnssell 8n.v.«, "the comparison be- tween private property in ships and jirivate property on land is not tenable." fLord Clarendon.— //<»/)«: Lord Cornwallis' severities in South Carolina, Mr. Massey savsij " Cs Droits et den Deroirs des Nations Ncutrcs, lit. 3, chap. 1. 8. 2, vol. 1, l.'iS, 2do edit. Vattel says, "La guerre en forme, quant a ses f^ffets, doit etre regnrdee coriime juste de part et d'autre." — B. 3, c. 12, ^ 190. Vattel says "this is absolutely neces- sary." But it would rather appear to be a superfluous refinement. In another place Vattel aflirms with great truth that " a war cannot be just on both sides." — B. 3, c. 3, jJ 39. BELLIGEllENTS AND NEUTRALS. 17 They are not satisfied with saying that neufrals have nothins: to do with the merits of the bellio^- erents' qnarrel. The jurists insist that neutrals shall blindly "accept the facts without discussing them." We know, however, from recent obser- vation, that neutrals disregard this injunction. They never do accept the facts without discussing them. On the contrar^^ they examine the facts critically, discuss them copiously, and form their opinions upon them freely. But it does not fol- low that because they may deem the war unjust, or absurd, they are on that account to interfere and put an end to it. They have no high duty to perform. They may look on with composure. It is enough that they submit patiently to the humiliations and disadvantages which, as will appear by and by, are abundantly cast upon them by the maritime law of nations. 5. Neutral nations usually give an asylum in their ports to the ships of both belliger- ents ; and we have seen this done re- boiiigeient cently under circumstances which might, perhaps, have justified a refusal of the favor. To grant such an asylum to one belligerent, and refuse it to another, would be, to use the language of the jurists, unneutral. The belligerents have no right to ask the benefit of neutral ports, or roadsteads ; but in the case of storms, or pressure of any kind, to deny refuge would be unchar- itable and unchristian ; and there is authority for holding that it would be contrary to the law of nations. 18 BELLIGERENTS AND NEUTRALS. 6". When two vessels, hostile to each other, meet in a neutral port, or when one pur- t()"ufeT? sues the other into a neutral port, they epar me. ^^^^^^^ heliave themselves peaceably while there. Should one of them sail awa}^, the other must not follow until after twenty-tour hours have elapsed. One object of this re2:ulation is to pre- vent au}^ reasonable chance of collision upon the coast. 7. In time of Avar, the great study of surround- n ,. , f„ iuGT nations is to abstain dilio^ently from Great duty >^ o ./ of neutrals. f|()j,jg anything that may interrupt the proceeding of the combatants. However great the inconvenience, the rule is that states not en- gaged in the conflict shall permit it to proceed without impediment, without remonstrance, and without complaint. Courtesy so elevated and so reflned does not exist in private life; for, when we see two men lighting in the street, our flrst im- pulse is to separate them, especially if the match be unequal. Should they resist our importunities, and by persevering stop the thoroughfare, we call in the police, who at once take charge of the ofllenders. 8. To these simple dictates of reason and jus- tice the law of nations, as now cstab- ty the Stnudard of 4th February, 1S02, in the following pointed scntonecs: "Napoleon over- ran Italy in a month, and conquered Prussia in a week. The Duke of Wellington marched out of Portugal on May 22, 1S13; fought the bat- tle of Vittoria on June 21; and before the end of the month there was not a Frenchman left in Spain. So there were but three months from Elba to Waterloo. Napoleon III met the Austrians first at Magenta, on June 'i, 1850, and finished the campjiign at Solferino in less than a month." What, then, becomes of the jurists' assertion that " arms anil ammunition prolong the war?"' t Hist. vol. ii, 4G6. 22 SEARCH FOR CONTRABAND OF WAR, ETC. agents in hastening its termination.* The rea- soning of the jii lists, therefore, on this funda- mental point, proceeds on a dehatahle basis, and calls for further examination. That reasoning, whether right or wrong (I otter no opinion either way), is unquestionably the parent of the cele- brated doctrine called "contraband of war;" a doctrine which will be considered in the next section, and to which, by recent and coming events, great interest has been imparted. * Section Y. Search for Contraband of War^ etc. 1. The Queen's proclamationf as to contraband Tiie Queen's ^^ ^^'^*' ^^'^^ ^'^'' ^^^ objcct, uot to guarautcc Kl'"ontm" evenhandedness to the belligerents, but band. ^^ keep out of trouble her own people. It warns her majesty's loving subjects that they abstain from " Carrying oflicers, soldiers, dispatches, arms, military stores, * The efficacy of gunpowder, as a pacificator, is more powerfully described by Captain Gulliver than by any other writer. Opinion of j^ i,,, advice to the King of Brobdignag, he says: "I Gulliver. told his niiijesty that I knew the ingredients very well, and the manner of compounding them; and that I could direct Uis workmen how to make hollow tubes of brass or iron, of a size proportionable to all other things in his majesty's kingdom, and the largest need not be above a hundred feet long ; twenty or thirty of which tubes, charged with the proper quantity of powder and balls, would batter down the walls of the strongest town in a few hourx." The king, whom the captain describes as narrow-minded, rejected this proposal. t Infra, 91. SEARCH FOR CONTRABAND OF WAR, ETC. 23 or materials, or any article or articles considered and deemed to be contraband of war according to the law or modern usage of nations, for the use or service of either of the said contending parties." 2. On the 16th of May, 1861, the following re- marks fell from the peers in Parliament — Opinions Lord Ellenborough : "I regret to sec so much Li^iT'Ei^ien- vaofueness in the expressions used as to contraband t*"'""??'!- •- *^ Grniiville, of war. How are plain men to find out what articles ati.i Kings- hare of late been so considered by the usage of nations? Wliat are the further articles not mentioned? The law with respect to contraband of war is in a state of constant change. I recollect to have found in the law-books of best au- thority, that all these changes were controlled by one prevailing principle, namely, that that is contraband which, in the .posses- sion of an enemy, would enable him better to carry on the war." Earl Granville : " The government has followed the usual course. Contraband of war must vary according to the char- acter of the war. The decisions of a prize court, unless there has been a flagrant violation of international law, all those who have recognized the rights of the belligerents must accept." Lord Kingsdown : " The determination of what is contraband must depend on the circumstances of each particular case. Pro- visions, if sent to a port where an army is in want of food, mi ' 111 , . ^ 111 1 1 • coiitiabaiHl. tliese rights, or humble every neutral snip by their exercise; for without stoppage, and with- out search, he cannot ascertain wliether the neu- tral has, or has not contraband on board. 8. When the bellio;erent finds contraband on board, he will of course take the ship , - - . . , Consequences into port; but he must bear in mind of soaicii for -rio( luT •• • liL contraband. Lord btowell s humane injunction, "not to handcuff the crew, or put them in irons, except in extreme cases."J If he find no contraband, he permits the ship to proceed on her voyage. 9. Suppose the result of the search to inspire a doubt: in that case the belligerent com- ^ , . , ., .,, When thero mander, havine^ a duty to pertorm, will iedoubtasto ^ . . , , contraband. reserve the doubt lor the judge, and take the neutral vessel into port. 10. In every belligerent state the conveyance to the enemy of contraband articles is treat- 5;,,ie and con- ed as a delinquincy. But it is not so ecTt'Sind regarded in the neutral state. Thus, not- hl'lhrneut'lal state. withstanding the Queen's proclamation, a British merchant may now lawfully sell contra- band articles to an American purchaser; nay, he * Tufra, 45, 89. t The approved mode of stoppage is by cannon phot — le coup dc can- non de semonce. + The San Juan Bjiptista. 5 Rob. 33: The Die Five Darner, ib. .367. 26 SEARCH FOR COXTRABAND OF WAR, ETC. may even cany tliem to Xew York or to Charles- ton, if lie cliooses to run the risk of seizure in iransiiu,* 11. In the hist number of the "Edinburgh Re- view,"t there is an able and candid arti- tainua'trjnai- cle ou " belliii^erents 'aiul neutrals." It advises the retention of the ''right of visitation on the high seas to ascertain the true national character of mercantile ships." This is quite distinct from the right of search for contra- band ; although the mode of proceeding is the same. The reviewer thus describes it — "The. visit is made by an officer in uniform, who proceeds peaceably to the merchant vessel in a boat manned by two or three men besides the rowers, and retires when his lawful in- (juiries are satisfied." The writer next observes that what is done is "analogous to the production of a passport by travellers on the Continent;" but — to omit the considerations which have brouglit passports some- what into disfavor lately — it must be remembered that the exaction of them assumes sovereignty. There is no sovereign on the high seas. * See all this admirably explained in Sir Roundell Palmer's speech, of the 20th of February, 1862, hifrii, p. 94. "{" January, J 862. BLOCKADES. ' 27 Section VI. Blockades. 1. Superior in rank to the right of stoppage on tlie higli seas is the riglit of blockading an enemy s port — the most singular or the bellii^rerents' many startlino: preroo-atives. This operation is performed and maintained without the slightest regard to the injury which may thereby be occasioned to neutrals, the great object being to cut otf all communication between those who are within and those who are without the place beset. Access and egress are equally deemed of- fences: not wrongs, but crimes. A blockade is said to be "an act of sovereignty," though why it shouhl be so specially is not explained. It is also called "a conquest." But it may be asked whether it is not rather an act of forcible occupa- tion — a trespass, precarious in tenure, and tran- sient in duration ; in truth, without anything to justify it but power. Be this, however, as it may, the Queen's proclamation* charges and commands her loving subjects that they abstain from "Breaking or endeavoring to break any block- ade lawfully and actually established by or on behalf of either of the said contending parties." 2. The doctrines of blockade, even with the restrictions which have been put upon them, illustrate remarkably the indul- cipl^ex""' gence and partiality exhibited by inter * In/ra, p. 84. 3 exam- ined 28 ^ BLOCKADES. national maritime law in favor of bellii^erents at the expense of neutrals. Two states have a per- fect ri, * • i *• i t ^ ii j Lj^^ jus gentium was not international. Jjet any one find a word about belligerent as contradistinguisljed from neutral rights in the civil Liw; or anything about searches for contraband, or breaches of blockade. The Romans, indeed, had a fecial college as old as Numa Pompilius. It ruled forms and ceremonies, but had little to do with justice or humanity. Julius Csosar, famed for clemency, murdered his prisoners of war. The Iro(iuois Indians ate theirs ; though, as Montesquieu says, they sent and received ambassadors. It was the dismemberment of the Roman empire and the establishment of Christianity, fully developed, that gave birth tardily to the law of nations. It is the opinion of M. llautofouillo that injudicious attempts to import Roman law into the international, have done harm, the principles of the two systems being essentially different. What is good BLOCKADES. 29 starvation on millions of industrious individuals who have nothing to do with the contest but to deplore it, and pray for its cessation. May it not be doubted whether a system which produces the consequences now felt in England and France is not wrong at the foundation? And may it not also be a question whether there is not a time when submission ceases to be a duty, and resist- ance becomes a virtue ? That time, however, we are authorized by high opinions to state, has not yet arrived.* 3. But to resume our exposition. The block- ade, to be binding, must be real, and rp,,yy g,^^,,^ there must be notice of it, so that all to ^^'"^'^^ be affected may be upon their guard. The im- pediment, too, must be b}^ ships of w^ar, placed in such juxtaposition as to enable them to constitute an insuperable barrier. It is said that privateers cannot perform or assist in this work ; though iu the Romau law is inapplicable; what is bad has done mischief. If Lord Stowcll, who made so many prize rulings, once cites a text from the corpus jririn civilis, on a point of international law, our memory fails. The Rhodians were the true parents of miiritime law. Their rules, however, were not international, but municipal, and as such were adopted by Augustus and Antoninus. The truth is that the idea of a code of nations was suggested by the remarkable confederation of the Gcrmjin principalities and the league of free towns, formerly estab- lished in ditfercnt parts of Europe for purposes of mutual protection. See Lord Brougham's Pol. Phil., vol. ii, p. 491 ; llallam's Middle Ages, vol. ii, p. 140. Vattel, in his preface, avers that Hdbbes was " the first who gave a distinct, but yet imperfect idea of the law of nations;" and this is perhaps the reason why the descendant and editor of that philosopher made the very able speech which will be found rn/rn, p. 93. * Debate in the House of Commons, March 7, 1862; and sec, espe- cially, Sir Roundcll Palmer's speech, published \\y Ridgway. 30 BLOCKADES. wliy does not appear, or at all events does not appear ration all}'. From these premises it follows that what is called a paper blockade — that is to say, a block- ade bj mere proclamation, without ships, or with but an inadequate force of ships — is entitled to no deference from neutrals. This doctrine received the sanction of the Paris Congress in 1856,* 4. Then does it follow that a real blockade is harmless? On the contrary, the more bilK-k-iTe impassable the barrier the greater the hardsliip on innocent sufferers. But a real blockade has limits, which a paper one has not. The real blockade cannot range over three thousand miles of coast. It injures neutrals in- deed ; but it does not insult their understanding. 5. It may be said that to abolish blockades would be a hardship upon belligerents, acyji'to'br But may it not be answered that to continue blockades would be a greater hardship upon neutrals? Who are the most en- titled to favor — the bulk of mankind, who are at peace, or the small, ill-conditioned portion who fight for an idea? Even supposing war to be a necessary evil, the struggle should be to make its mischiefs as small as possible to those not engaged in it. 6. Breaches of blockade are in the prize court Severe pen- tTcatcd as deliuquencics, which bring in- uie'breach ^o rcquisitiou tlic Criminal vocabulary, of them. Formerly imprisonment or other corpo- ••■ See ill fro, pp. 6] iind 8;5. BLOCKADES. 31 ral correction, sometimey even death itself,* was inflicted upon offenders. The modern usage has confined the penalty to confiscation of ship and goods. If a vessel lias contracted gnilt h}^ a breach of blockade, the offence is not discharged till the end of her vovaa-e. But when the block- ade itself ceases, the delictum ceases. Such is the law as administered in Eno-land; and Mr. Justice Story lays down the same doctrine for America.f The decisions for breaches of block- ade, though falling short of ancient severity, are still well fitted to secure obedience. Thus, for example, it is held that the mere sailing^for a blockaded port, knowing it to be blockaded, is a breach of the blockade, b}^ reason of the crim- inal intent, which, though unexecuted, involves condemnation. J Lord Stowell appears to have considered the breach of a blockade an act of deep turpitude. But it may be doubted whether it would be uni- versally so regarded in the present day. Some might now think it a meritorious achievement, legitimate in object, and not the less entitled to commendation because daring in execution. For, although a breach of blockade is dealt with as a delinquency in the blockading state, it is not so regarded in the neutral state. The Queen's proc- lamation seems to be but little more than an ad- monition to her loving subjects, and all who look up to her for protection. § ♦Manning, 319. f Crant-h, p. 440. % 1 Robinson, 154. g See Sir RoundcU Palmer's speech of Uie 2(Uli of Fehriiary, 1862, iiifiit, p. 87. 32 BLOCKADES. 7. In tlie late dicussioii* the solicitor-general V fnia made the followino: remarks as to the Essentials o f.^»i!™.'!" essentials of a blockade, havini): rci^jard 111 III" JiiL O" ' d? d' eut day. ^^ luodem cliangcs arising from the use of steam, and other causes. The blockade, says Sir Ronndcll * ralmer,t must be " A bona fide blockade, by a force sufficient to maintain it on the spot; and there must also be a sulhc-ient notification of some kind or other of that blockade. These are the two principles. AVhatever may be found in some writers, not now of recent date, it is perfectly clear that we have no exact technical defi- nition of what constitutes such a sufficient force. You cannot a priori lay down what particular number of frigates or other ships-of-war shall be an adequate force in any hypothetical case. The improvements in modern warfare, the introduction of steam, or any other similar change, may have made suffi- cient or insufficient now means of blockade which were not so before." 8. The solicitor-general, on the same occasion, Testofsuffl- furnished the following test, whereby to ciency. ^^ ^j^^ sufficieiicy of a blockade.! He said — " What, from the beginning of this century, has been laid down as the test in this matter ? Why, in the first place, that of ' evident danger;' and then, that due credit must be given to the judgment of the naval officers intrusted with the execution of the service." 9. So, again, as to the intermissions of block- ■* In the House of Commons, on the 7th of March, 1862. f Speech of 7th of March, 18')2, published by Ridgway. t Ibid. BLOCKADES. 33 ade, some inconvenieut doctrines are cor- rected by the solicitor-general in the fol- and livivais' - . of blockade. lowing passage* — " After a blockade has been intermitted, it may be resumed ; and when it is resumed, as soon as persons have knowledge of the fact, whether by format notification o^ the renewal or other- wise, it becomes as binding again, so far as those persons are concerned, as if it had not been intermitted. It is only during the period of intermission, or as to ships which come in, or intended to come in, daring the period of intermission, or which may be affected with notice of the original blockade only, and not of the renewal, that the fact of intermission has any effect." ' 10. Blockades, like war itself, seem to be a necessity. For this reason it would be desirable, if it were practicable, to render without them less noxious to neutrals. What is blockade ? Let us look at the plain import of the word. Lord Chancellor Westbury encourages us. lie lately resolved, with the concurrence of the other law peers, a most difficult point in the House of Lords, very much bj^ the aid of ety- mology ; which, learnedly and wisely applied, will often clear obscurities, and bring us back to the good sense of a perverted institution. Lord Campbell, on the bench, made many appeals to Dr. Johnson. Xow, that great authority tells us that the blockade is simply "to shut up by ob- struction." The lexicographer says nothing of seizures or confiscations ; because these and the many harsh maxims which attend them have nothing to do with blockade in its primitive and true acceptation. » Speech of 7th March, 1802, published by Ridgway. 34 BLOCKADES. When the first blockader invested a phice, he warned off all neutral merchantmen. lie "shut them out I)}' obstruction." But it is not clear that he made prizes. 11. We conceive (speaking without experience, MCi.M block- I'^ving never seen'a blockade,) that seiz- captiires'be"^ urcs aud coufiscatlous are scarcely worth ftiective? ^i^g trouble, the ex[)ense, and the odium they occasion. W^hether blockades without cap- tures would prove eliective may be a question. But this is to be remembered — the taking of cap- tured ships into port for adjudication is often a tedious and difficult, and sometimes a perilous operation, which must always more or less occa- sion a diminution of the blockading power, scarcely compensated by the spoil of neutral property, which rewards the men employed.* How far this mode of remunerating her maj- esty's navy is suited to the dignity of a great nation, and how far it comes up to the require- ments of an enlightened age, and an advanced civilization, seem to be topics not unfit for the consideration of the legislature. ^ See infra, 42. THE PRIZE JURISDICTION. 35 Section VII. The Prize Jurisdiction. 1. Describing tlie catholic character of the prize jurisdiction, Lord Stowell, at the close of ^^^.^^.^^^^ ,^f the last century, thus expressed himself — JhTtJcJ;'*'''*'" " It is the duty of the judge to administer that justice which the law of nations holds out without distinction to independent states, some happening to be neutral, and some to be belligerent. The seat of judicial authority is indeed locally here, in the bel- ligerent country; but the law itself has no locality. The person who sits here is to determine this question exactly as he would determine the same question if sitting at Stockholm : asserting no pretensions on the part of Great Britain that he would not allow to Sweden."* 2. So said Lord Stowell in 1799. Seven years afterward, France, with hardly a man-of- „. . . ' ' »/ His opinion war at sea, declared England and her col- i"^^i-^- onies in a state of blockade; and Eni2:land retorted by her orders in council, whereby she declared that France and her allies, as well as her colonies, were in the same predicament. Of course all neutral nations suffered incalculably. They com- plained that they were made the victims of a double blockade unexampled in its range, yet composed almost entirely of paper, and having not a leg to stand upon in the shape of precedent or authority in the law of nations. They pro- tested without effect. England o!i the one hand. * 1 Rob. 350. 36 THE PRIZE JURISDICTION. and the "French Ruler," as he was called, on the other, were too much for the rest of Europe. Still, the neutral traders had one consolation. They called to mind the court which "had its seat locally here, hut which was hound to administer a law which had no locality." In answer to their appeal, Lord Stowell "delivered himself with a power of language which never forsook him, and which might have convinced any person except the suffering parties to whom it was addressed." Said this great magistrate, of whom the courts of Doctors' Commons may well be proud — " It is strictly true that the king in council possesses legisla- tive powers over this court, and may issue orders and instruc- tions which it is bound to obey and enforce : and these constitute the written law of this court. These two propositions, that the court is bound to administer the law of nations, and that it is bound to enforce the king's orders in council, are not at all in- consistent with each other. The constitution of this court rela- tively to the legislative power of the king in council, is analogous to that of the courts of common law relatively to that of the par- liament of this kingdom. Those courts have their unwritten law, the approved principles of natural reason and justice; they have likewise the written or statute law in acts of parliament, which are directory applications of the same princijiles to par- ticular subjects. What would be the duty of the individuals who preside in those courts, if reqxiired to enforce an act of parliament which contradicted those principles, is a question which I presume they would not entertain a priori. In like manner, this court will not let itself loose into speculations as to what would be its duty under such an emergency, because it cannot, without extreme indecency, presume that any such emergency will happen." 3. The discerning reader will perhaps recognize THE PRIZE**JURTSDICTION. 37 tlie liaud that penned the following para- 1 J. These oin'n- graph* ions con- trasteii. " If we venture to dispute the law recently laid down by the learned judge (Lord Stowell), it is upon his own authority. By what streti'h of ingenuity can we reconcile the position that the court treats tlie English government and for- eign governments alike, determining the cause exactly as it would if sitting in the claimant's country, with the new posi- tion that the English government possesses legislative powers over the court, and that its orders are, in the law of nations, what statutes are in the municipal law ?" 4. The result is that our prize court, while af- fecting* to administer the maritime law n ,• • • X* i. 1 1 J. 1 The court oi nations, is in tact bound to obey or- has two ders in council, and proclamations issued hy one of the very parties who are litigating be- fore it. 5. On this point we consider it a positive duty to quote the follow! no; admirable sen- « . 1 o Sei'ions con- tences from the skilful pen aforesaidf — sequence. " What analogy is there between the proclamations of one belligerent as relating to points in the law of nations, and the enactments of statute as regarding the common law of the land? Were there indeed any general council of civilized states — any congress such as that fancied in Henry IV's famous project for a perpetual peace — any Amphyctyonic council for modern Eu- rope, its decisions and edicts might bear to the established })ub- lic law the same relation that statutes have to the municipal code ; because they would be the enactments of a common head, binding on and acknowledged by the whole body. But the edi(;ts of one state, in questions between that state and for- eign powers — or between that state and the subjects of foreign powers — or between those who stand in the place of that state * Ediiib. Her., Feb., 1812. f Ibid. 38 THE PIIIZE JURISDICTION. and foreijrn covernmonts or individuals — much more nearly re- semble the acts of a party to the cause than the enactments of the law by wlilch both parties are bound to abide. Mark the consequences of such loose doctrines, such feeble analogies. They resolve tiiemselves into an immediate denial that any such thing as the law of nations exists, or that contending par- ties have any common court to whicli all may resort lor justice. There may be a court for French captors in France, and for English captors in England. To these tribunals such parties may respectively appeal in safety: for they derive their rights from edicts issued by the governments of the two countries sev- erally ; and those edicts are good law in the prize courts of each. But for the American neutral claimant there is no law by which he may be redressed; no court to which he may resort. He is a prey to the orders of each belligerent in succession. Even under the old and pure system of 1798 and 1799, the neutral was forced to receive his sentence in a foreign court, always the court of the captor's country. But how is it now, when the court, sitting as before, has made so large a stride in allegiance as to profess an implicit obedience to the orders of the belliirerent ijovernment witliin whose dominions it acts ?" 6. Dr. Phillimore is clear tliat the "orders in , ,^,, council of 1807 contravened the inter- Lord Stow- tion diffi- national law ;" but be admits tbat Lord """'*• Stowell "carried tbeni into execution."* Tbe position of tbis judge was one of difficulty. He acted under two authorities, lie tried to obey botb, even wben tbey disagreed. AYe can now do justice to bis motives; but bis line diction, bis delightful manners,t and bis real purity all failed to save him from the censure of his contempo- raries. Thus, in addition to tbe strictures we have quoted, we lind that Mr. Horner, who was in constant communication with some of the l)est * 3 Phill. Int. Law, p. 5.'^9. f See Townsend's Memoir. THE PRIZE JURISDICTION. 39 men of his time (among others, Sir Samuel Romill}^ Sir James Macintosh, and Lord Henry Petty), wrote to John Allen:* "Sir William Scott (Lord Stowell) is said to have furnished ministers with his opinion in favor of our right to search ships-of-war for deserters." The British govern- ment had the very month before conveyed to the American minister a disavowal of any such rightf About the same period, J Mr. Horner, writing to Mr. Murray (afterward the eminent Scotch judge), says: "Sir William Scott told Sydney Smith that no iJrinciple is more plainb/ laid down than our right to take the navy of the Danes ; and so he has been ready to say, and would be still ready, for any outrage or breach of the law of nations that the government of this countrj^ has dared or is meditating to commit." The remarks of Mr. Horner are too severe ; but they show the impression entertained respecting Lord Stowell by men of the first eminence in this country. But if we tur!i to foreign witers of neutral nations we shall find not only strong reprehension, but even imputations of corruption. The American jurist, Mr. Wheaton, who had served diplomat- ically in sundry parts of Europe, sets out in his "Elements" the grievances of the Baltic powers, which they referred to the supposed "tyranny" of England, as exercised in her prize jurisdiction. He goes i)articularly into the complaints of Den- mark, when Lord Stowell decided that ships * August 31, 1807. Horner's Memoirs, t See 4 James' Nav. Hist., 333. t September 29, 1807. 40 THE PRIZE JURISDICTION. under convoy were liable to visit and search, and subject to confiscation for refusing to submit to either.* Mr. VVheaton was himself deeply im- bued wnth the feelings described by him. Speak- ing of Lord Stowell, he says, "that highly gifted and accomplished man has been compelled to avow that he was bound by the king's instruc- tions; and we know that his decrees are liable to be reversed by the privy council, from which those instructions emanate. The rapacity and in- justice of the British courts of vice-admiralty in the colonies are notorious. "f Mr. Wheaton even talks of "the pure hands" of the American judges,! apparently by way of contrast to the hands of Lord Stowell, and the hands of the colonial vice-admiralty judges. The editor of the "Elements," Mr. Lawrence, charges Lord Stowell with " ministerial subserviency. "§ He remarks that Lord Stowell "at one time appeared to regard the text of the king's instructions as binding on his conscience ; at another, he held it indecorous to anticipate the possibility of their conflicting with the law of nations. "|| It is very * 3Iari((, 1 Robinson, 340. Lord Stowell's judgment in this case is admirable in composition, argument, and diction ; but the decision is in tbe last degree questionable. Mr. Massey, in bis instructive history, says, "a rigbt of search can never be made to extend to ships under the immediate protection of a man-of-war. An attempt to enforce it under such circumstances is an insult to the flag so challenged." It is curi- ous that Lord Stowell, in this case, speaks about the Roman civil law ; but he cites no text, and we believe it would be difficult to find one, on the privileges of maritime convoy. flntrod. Rem., 37. ^ Introd. Rem., 79. i Ibid. It Ibid. THE PRIZE JURISDICTION. 41 true the same writers are equally liberal of their conderrniation when speaking of French prize ju- risdictions. But this only raises these questions : first, whether neutrals are likely ever to be sat- isfied with adjudications coming from a belliger- ent state, their opponent in the prize litigation; and secondly, whether it would not be better to place this invidious jurisdiction in some separate, independent, and disinterested territory. This suggestion, however, is not free from difiiculties; nor are we at all clear tliat any good would come of it. It is the law itself — so hard on neutrals — that causes the evil, and not the instrument of its administration. 7. It is not wonderful that Lord Stowell should have been considered a harsh judge to- d, , p T , . , Lord Stowell neutrals; tor unless where there was severe on gross culpability on the part of the cap- tors, although restitution might be ultimately or- dered, neither damages nor costs were awarded against them. 8. We are told by that eminent judge, Dr. Lushiui^^ton, that, " durine: the seventeen , t5 ' ' o Indulj^ent to years Lord Stowell presided in the prize f'^ptors. court he had condemned captors in costs and damages in only about ten or a dozen cases; not one in a thousand."* On another occasion Dr. Lushington said "he believed that not one case would be found where Lord Stowell condemned the captors in costs and damages upon the ground * The Ofit>ice, Dr. Spinks' Prize Cases, 174. 42 THE PRIZE JURISDICTION. that tlie papers and depositions did not disclose a probable cause of capture."* Accordingl}^, the marginal note or summary of a most important case decided by Dr. Lushington daring the hate Russian war is in these words : " If captors seize a vessel without any ostensible cause, the\' are liable to costs and damages; but this is the ex- tremity of the law of nations, and should only be adopted in cases of imperative necessity. "f Such cases were evidently rare in Lord Stowell's time; though not quite so rare as Dr. Lushington im- agined; for on an {ippeal from his decision in '' The Ostsee,'' coming before the Judicial Com- mittee, in 1856, Lord Kingsdown, in giving judg- ment, observed "that the cases in which during the late war restitution was attended with costs and damages turn out upon inquiry to be more numerous than was supposed. "J 9. In those cases, undoubtedly few and fiir be- tween, where damages and costs were awardTtlT'^ awardcd against the captors, the amount cap ors. ^^^^ generally, if not invariably, made good by the government. And this was not un- reasonable. It was the polic}^ of the government to stimulate the energy of its officers; and if they acted in obedience to orders, the state must in- demnify them. It appears, accordingly, that the occupation of captors was not without other ad- vantages besides the satisfaction which arises from * The Leiicade, Si)inks' Prize Cases, 224. t The 0>t'»tion. effective — that is to sag, maintained by a force sufficient really to prevent access to the coast of the enemy. On the subject of blockades we have already said enough.* The " solemn declaration " does alter the law as laid down by approved authorities. 12. The Queen's proclamationf charges her sub- jects to abstain from " breaking, or en- deavoring to break, any blockade, law- iuel''n"«p?o^- fully and actually established by, or on ^'""''^'^•"• * See «»7./vf^). 27. | Infra, p. 84. 5 52 PROPOSED CHANGES IN behalf of the contending parties; l)ut it does not say that such blockade ''must be effective — that is to say, maintained by a force sutHcient really to prevent access to the coasts of the enemy." This variance is not likely to have been acci- dental. Those who drew np the Queen's procla- mation must have had before them at the time the Paris declaration. The deviation, therefore, was by design and for a purpose — possibly the laudable one of adhering to precedents: seeing that Amer- ica was no party to the Paris declarations. For- eign critics, however, resort to a less charitable construction ; for they more than insinuate that the effective blockades described by the plenipo- tentiaries are viewed with disfavor by the British o-overnment. Section IX. Proposed Changes in the Maritime Law of Nations. 1. After the great step taken by the Paris pleni- potentiaries, in 1856, the question re- Oughtprivate ^ . / ^ ^ i ^'r^l ^^ piopcrtytobe rnaiiis — an important and a ditncult one — 1 ispected at ^ . ^ . , soa? whether a further stride in the same direction has not become expedient; in other words, whether it is not lit to put an end at once to the practice which, as has been shown, prevails during war, of attacking and plunder- ing the property of private individuals at sea. Some think a change in this respect imperative ; others hold it would be dangenDUs. On what THE MARITIME LAW. 53 principle are we to proceed — the good of Enc^land, or of the world at lart^e? Is it clear that they dif- fer? The eye of the publicist looks to the great family of nations, having regard to what is best for maidvind. The niunicii»al hiwyer thiidvs of nothing but the interests of his own country. The statesman must decide. If wars could be prevented or arranged by arbi- tration,* the gain would be immeasurable; but before aii}^ hope of such happy results can be relied upon, human nature, we fear, must undergo a change, of Avhich the indications as 3'et are only partial and feeble, if not hollow and deceitful. Therefore it is, that a strong etibrt should be made * The Paris plenipotentiaries received with great f'avur a suggestion much urged by Lord Clarendon, that friendly mediation ought in all cases to be resorted to before comnieneing Protocol as to hostilities. This appears by the protocol of the 14th prevent 'war April, 1856. from which wc extract the following passages: "The Earl of Clarendon having demanded permission to lay before the congress a proposition which it appeared to him ougbt to be favor- ably received, stated that the calamities of war were still too present to every mind not to make it desirable to seek out ever\' expedient calcu- lated to prevent their return ; that a stipulation had been inserted in article vii, of the treaty of peace (of 1856), recommending that in case of diflference between the Porte and one or more of the other signing powers, recourse should be had to the mediation of a friendh-^ state be- fore resorting to force. The first plenipotentiary of (Ireat Britain con- ceived that this happy innovation might receive a more general appli- cation, and thus become a barrier against conflicts which frequently only break forth because it is not always pos¥iI)le to enter into expla- nation, and to come to an understanding, lie proposed, therefore, to agree upon a resolution calculated to afford to the maintenance of peace that chance of duration hereafter, without prejudice, however, to the independence of governments. Count Walewski declared himself au- thorized to support the idea expressed by the first plenipotentiary of Great Britain ; he gave the assurance that the plenipotentiaries of 54 PROPOSED CHANGES IN to render an evil so diffieult to iivert as contracted in the range of its niischiets as possible. 2. Now it has been said, and said with plausi- bility, tliat war ouii'lit to be the affair of America , j. i' • t • i i aswa.vs for governments, not oi individuals, nor even ot nations. We presume that tins was Lord Palmerston's meaning when he said at Liv- erpool that '' it was, perhaps, to be desired that conflicts should be confined to the bodies acting under the orders and directions of the respective states."* On one occasion the distinction be- tween an armed enemy and a pacific trader was mutually guaranteed b}^ treaty; a treaty which on this account deserves honorable mention — France were wholly dis>pose:l to concur in the insertion in the protocol of a wish which, being fully in accordance with the tendencies of our epoch, would not in any way fetter the free action of governments. The Earl of Clarendon replied that each power is, and will be the sole judge of the reiiuirements of its honor and its interests; that it was by no means his intention to restrict the authority of the governments, but only to afiford them the opportunitj' of not having recourse to arms whenever differences might be adjusted by other means. The wish of the congress should allow of the most general application; he observed that if the good offices of another power had induced the government of Greece to respect the laws of neutrality, France and England would very probably have abstained from occupying the Pirajus with their troops. He referred to the cflforts made by the Cabinet of Great Britain in 1823, in order to prevent the armed intervention which took place at that time in Spain. Whereupon the plenipotentiaries did not hesitate to express, in the name of their governments, the wish that states be- tween which any serious misunderstanding may arise should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly power. "The plenipotentiaries lioped tiiat the govornnicnts not represented at the congress would unite in the sentiment which had inspired the wish recorded in the present protocol." * Times, 8lh November, 1850. THE MARITIME LAW. 55 that between America and Prussia in 1785.* And here we must remember that the Ameri- cans, ever since the declaration of their inde- pendence, and more especially since the com- mencement of the war of 1793, have uniformly insisted ''that public ships should not capture any merchant vessels, or otherwise plunder private property upon the ocean ; but confine their bel- ligerent operations exclusively to the ships of war of each nation. "f It appears, indeed, that so re- cently as June, 18G1, the minister of the United States at Paris proposed to the French govern- ment "to add to the first article of the declaration of 1856 the plan of protecting private property on the sea from capture in time of war. "J How far this is practicable, how far it is wnse, must soon be decided. It is, at all events, opposed by the jurists, who hold that the veiy notion of war necessarily implies a cessation of all commercial intercourse between the belligerents. 3. The first I^apoleon, a man of speculation as well as of practice, dissented from the ^ . . ■I- ' 0]»iiii'iii of jurists. He held that "belligerents ought ^Napoieuni. to wage war without giving rise to the confiscation of their mercantile marine. Commerce should be * During war certain favored persons are authorized to trade with the enemy. Others do so without license — hy connivance. This shows that convenience is felt from the practice on both sides; and it would rather appear tliat there is but little wisdom in restrict inj:: it. f Rush's Residence at the Court of London. Sec. Ser.. vrd. ii, p. 12L J Correspondence respecting International Maritime Law. North America, No. ?>. Presented to Parliament, 1S62, p. 7. Dti PUOPO.SKD CHANGES IX carried on ]>y sea hctweiMi tlio l\V(^ bolligeroiits uj* it is carried on l>y land in the midst of the battles of tlie contending parties."* 4. So, Lord Pahuerston, no enthusiastic innova- tor, addressing: the Liveriiool clianiber of Of Lor said: "It lias been a sul)ject of great satisfaction to ust to reflect that at the commencement of the liussian conflict the {government of Enii^land, in concert with tliat of France, made changes and relaxations in the doctrines of war which, without in any degree impairing the power of the bellig- erents against their opponents, maintained the course of hostilities, yet tended to mitigate the l)ressure which hostilities inevitably pi'oduce npon the commercial transactions of countries that are at w^ar. I cannot hel[) h(>[>ing that those relaxa- tions of former doctrines which were established in the beginning of the war, practised during its continuance, and which have been since ratified by formal engagements, iiKu/ in'rhapf^ be still farther extended; and in the course of time those principles of war which are applied to hostilities by land may be extended, without exception, to hostilities by sea; so that }>i'ivate }»ro})erty shall no longer be the object of aggression on either side. If we look at the exami»le of former periods we shall not find that any poweri'ul country was ever van- quished through the losses of in(livii i^"«''^"- taken by the government to carry out the recom- menchitions of the shipping committee, gave an answer wdiich shows that Earl Kussell, though a reformer, pauses a little before adopting a prin- ciple which may be found in practice less bene- iicial to this country than acceptable to others. His lordship treats the committee's proposition as somewhat Utopian. lie says — " The proposition itself seems to me to be one of the upmost magnitude. It is, in fact, a proposal, that, there being two pow- ers, one of which has a very strong army and a weak navy — the other having an army inferior in numbers, but a superior na- vy — the power which has the superior navy should forego all the advantage to be derived from that source, and allow the contest to be decided by military force alone. Its adoption would in the next place tend rather to prolong than to shorten wars; because one way in Avhich a great maritime j)ower can act as a belligerent, is to crlj)j)le the trade of its op])oncnt. The greater itfs strength as a maritime jjower, the greater is its power to do this, and the better its chance of bringing the war to a favorable termination. If this ])roposition were accepted, the whole of the })0wer would be gone which has hitherto rendered Great Britain so fonnidable at sea. In the next place, I per- ceive difJiculties in detail which would be insurmountable. The mercantile navy of a belligerent would \)v free from capture ; but no one could say, when a number of vessels, apparently merchant ships, appeared off the coast, that they might not be used lor j)urposes of war. and that they did not contain 60 PROPOSED CHANGES IN MARITIME LAW. [Here h'is lordship was interrupted by Mr. Bright, but on re- suming, said — ] I regard the question as one affecting the •\vhok' maritiuu; power of this country. And I think that any minister of the crown ought to be most cautious in taking any final step in respect of it." These considerations are truly serious. The subject calls for greatly more discussion than it lias hitherto received. The leo^islature has not examined it; and tlie press has not yet suffi- ciently aroused to it the attention of the country. 9. I believe I have now done fairly what I pro- posed at the outset, which was, to state shortly tlie chief points — to offer here and there a suggestion — and to leave to the reader's judgment the decision. Section X. POSTSCRIPT. Showing the Present State of Sentiment in THE House of Commons as to Securing an Immunity for all Private Property at Sea during IIoS'riLITIES.* On the lltli of March, 1862, Mr. Ilorsfall f called the attention of the House of Commons to the subject ot interna- moticu to tional maritime hiw, and moved a res- cantiie cap- olution that the existmij; state ot that law as "afiectiiiii: hellio-erents and neutrals was unsatisfactory, and called for the early attention of the government." The real ohject of the mo- tion was to obtain a discussion of the subject. After describing the old law, and the changes made at Paris in 1856, the honorable mend)er stated his own view to be that all private proj*- erty during war should be inviolable at sea — " The question was, first, what would be the effect of the law in the event of war ; and, secondly, what had been rr - • /• -HI- *i 11 IJ'" Opinion. Its eilect in tune ot peace. Merchants would not *The speeches wliich follow arc abrul;;e«l froiu the Timra of 12th and 17tli of March, 1862. f Mendier for Liverpool. 62 PR IV ATE PROPERTY ship a sinfrlo pac kajrt^' of j^oods in a vi'ssol liable to seizure if they had the opportunity of shipment in a vessel not so liable. The operation of the law in tlie event of a war, say Evil of the -vvith Franre, would be that everv British ship would law in war. ^ • ' be laid by. Neutral vessels would obtain jxreatly enhaneed freitrhts; and British seamen would be drafted from British ships not into her majesty's navy, but into neutral ves- sels that eould alford to pay much hipoi t im- munity to private proj^erty at sea. We should '"""'^.v- invite a congress to promote the gtmeral progress of commerce, and to consider how best to protect the property of unoffending ship-owners from rapine and destruction." Mr. Baillie Cochranef censured the declara- tion of l^aris as a great blunder. But Mr. cmiiie he should regard, tho adoption of the opinion. motion before the House as a still more Paris decla- ration a unfortunate event. blunder. Sir George BowycrJ said it was difficult to un- derstand why the analog}' of terrestrial sirc.eorKo war should not prevail with respect to opinion.^ war at sea. A belligerent had no more right to seize a merchant's ship on the sea than AnHiogy be- 111 • 1 n 1 1 tween sea lie had to seize the property ot the people an.iiand whom he invaded by land. o — * Member for S. Xorthiimlicrland. f Member for Iloniton. X Member for Dundalk. 64 PRIVATE PROPERTY Sir George C. Lewis* said tlie question was of iirst-rate importance; anil it was of ])ara- 8ir Georpc . i • i i i c. L."wis' mount importance that it sliould receive opiniun. . , , . . . , , a riglit decision in that liouse — "Neutrals have no intorost in tlio j)ri!uipU' wliicli the hon- orable mover recommends to the house. Neutrals, Neutrals oppoKed to so far as they had any interest, had an interest di- tbe motion. , .' , w ^\ • i i * i rectly opposite, because it they wished to become the carriers of the world they would naturally wish that the ships and goods of the belligerents should be exposed to risk. You may make a compact that in time of war you will respect the neutral flag. For instance, we have now a compact with France and other Continental powers that we will act on the principle that the neutral flag covers the enemy's goods, so that if we were to seize American goods under the French flag we should be guilty of a violation of engagement witli France. But war puts an end to all treaties and engagements an en ' opinion. followino; observations — " The attorney-general had treated the Paris declaration as an accomplished fact, which mu^st be adhered to. In Paris decla- ' , , • , -n. ratit.il binii- the case or a war between this country and r ranee, "'^'' is it not evident that the Avhole of your carrying- trade would pass into tiie hands of neutrals ? What country has most commerce afloat ? most property to be seized ? Surely, England. What country would gain most by the pres- ervation of that property? England. What country would be so much injured in war, through her commerce, as England? There is not the slightest doubt that you ought gravely to con- sider the motion before us. He did not see Avhy a congress should not meet and discuss tiiis question, in the interest both of commerce and of Europe. He firnilv believed Principle of ... ... • -i i i freed<»ni must the principle ot this motion would prevail, although ^'''^''' it might be resisted by the present administration; for he felt confident that the time would come when the House would not turn a deaf ear to the prayer addressed to it by the great majority of the commercial interests of the country." Adjourned Debate, March 17. Mr. Lindsay,* in consequence of the indisposi- Mr. Lindsay's ^lou of Mr. Cobdeu, resumed the ad- opiniou. journed debate — " In the event of a war, it being clear that all our merchan- dise would be sent from our shores in the ships of other nations, * Member for Sunderland. TO BE SAFE AT SEA. 67 it was equally clear that our shipping would be obliged to lie in our harbors completely unemployed ; so that the argument that we required our fleet to protect our commerce and shipping fell to the ground. In the event of a war with France, the mer- chandise of that country would be conveyed in neutral bottoms, so that our fleet would be of no value in the way suppose^. Vast changes had taken place since the last great war. In 1814 the total amount in value of our imports and exports was. about 60,000,000/. The value in 18G0-61 was close upon 300,- 000,000/. Our shipping in 1814 was about 1,000,000 tons; it was now near 5,000,000, of which 500,000 consisted of steamships. Did anybody really suppose that we J?oJ|',,,^not could have a fleet sufiiciently numerous and power- pi- tcct our r \ 4. iiii. , ^-,^. commerce. lul to protect tiiat vast commerce ? If the cry in war was to be 'burn, plunder, and destroy,' we had more to lose than any other nation ; and in the event of war, would be by far the largest sufferers." The lord advocate of Scotland* delivered a clear legal speech, in course of which he asked a question not yet clearly an- ThUues swered, namely: What was to become "''""""" of blockades, supposing the views of the honor- able mover carried — " The principles advanced by the supporters of the resolution would necessarily lead to the abolition of blockades. The rules of war entitled us to destroy our enemy's commerce. If we gave up that right, could we then maintain the right of blockade, which was an infinitelv strono-er inter- Y'^^'^^ ''" f. ... • >■? blockade. terence with private property than the right of cap- ture at sea ?" Sir Stafford ^N'orthcotef doubted whether the amount of our warehousiuii^-trade and «. « .. .. O bir f*. >nrtri- the extent to which our carrying- trade c^'^'-^p""""- *Mr. Monerieff, member for Leith. f Member for Stamford 6 68 PRIVATE PROPERTY would be eiulanorered, in the event of war, liad been sufficiently considered — " The phenomena of the last war had been spoken of. But (ireat Britain would not be able to put down neu- ^aillniot ^^^^^ "ow. Many close trades which then existed now i.e put -were now thrown open — our colonial trade for ex- down. ^ ^ 1 • ample. Commerce always sought the safest ships, and English vessels were then the safest. But the neutral, and not English vessels, would now be the safest. A war with France would threaten our very existence. Both sides would have recourse to neutral vessels. This would cause little injury to France, but the effect on England would be ruin- Could mat- -,,T 1 . , r • • ters rest as ous. Were her majesty s government ot opinion lej Mere. ^^^^ ^^j^ matter could safely rest where it was? They had rashly concluded certain arrangements with certain powers; while the most important power stood aloof. France would be perfectly safe. All that would be stopped would be British shipping. The government would surely The Paris 1 1 o e J deciiinition not contend that this treatv might be set aside, im iiig. p.j ^j^^ noble lord at the head of the government adopt the doctrine that this treaty might be broken as between the nations who might go to war ? He apprehended great in- conveniences and dangers from the treaty of Paris. In addition to a war with France, that treaty would probably bring us into difficulties with the United States. He thought it impossible to accept the principles laid down by the noble lord at Liver[)ool, without considering a great many other questions. Tlu'v all knew that there were stipulations and treaties which war im- mediately put an end to ; but were all treaties made even in contemplation of war to be set aside ?• If so, they were going back to a state of barbarism. Chancellor Kent said that if a treaty conteinj)lated a state of future war, it preserved its force when the rupture took place; and the obligation of keeping faith, so far from being extinguished, became increased, from the increasing necessity for it. That was a matter which ought to be cleared up ; whereas it was now left in studied vagueness. TO BE SAFE AT SEA. QQ They had been told that there was no protection for private property on land. The advocates of the Z'fZli-'^^ Danish claims would be rather startled at such a 'Jp'»i"'n of change of opinion on the part of the government. ^'''' '""'^'"''' The opinion of her majesty's attorney-general and of the chan- cellor of the exchequer, last year, was that the claimants who had lost property on land were entitled to have their losses made good ; but that there was a bi-oad distinction between property taken on land, and propei-ty taken on sea ; and that compensation for the latter was not to be given. But what did the Secretary for War* tell them? Why, that this distinction couhl not for a moment hold water. He had seen it stated that there was a better reason assigned for maritime plunder — that it was more out of sight, and caused less indignation than plun- der by land.f There was some truth in that. He did not ig- nore the humanitarian argument ; but, speaking as an Englishman, he thought that the interests of his Ar an Eng- own country were of all things to be considered. wuui.Tsup! He was not prepared to endorse the views pro- motion.^ pounded by his honorable friend the mover until he saw more distinctly how they could be accommodated to the other questions in connection with the subject which they had raised. The advice which was given by Bail lie Nicol Jar- vie, or rather by his father, to the effect that one should never put his arm out so far that he could not draw it back again, was, he thought, quite applicable under the present circumstances." Mr. Gowert dissented from the motion. >!>-.«ower-8 diMsent. Mr. Cave§ expressed his general con- . -, ^ ^^r. Cave'8 enrrcnce with the views of the mover. "''^"^• Sir F. Goldsmidtll observed that the resolutions of the honorable member for Livei-pool would not mitigate the real horrors of s^nidrsop.'n': war— *""• * Sir George Lewis. g Member for Shoreham. fSee siijiva, p. 11. || Member for Reading. J Member for Bodmin. TO TKIVATE PROPERTY " Their only effect would be to relieve our merchants from a somewhat hi^ihcr rate of marine insurance in time of war. AVars would be best prevented by a firm and temperate policy. Their hardships were unavoidable. But those hard- Captures not . ' to lie leliii- ships would be aggravated by our surrender of the nuished. • i . ,• •,- ,. right of maritmie capture. Lord IlariT Vaue* hoped that ' the motion , , „ would not be pressed to a division, thous^h Lont Ilarrv *^ ' o Vane's opin- ]^q admitted that the present state of ion. 1 maritime international law was extremely Law now un- »' Hutisfactory. ^ n Satisfactory. Mr. Buxton's -^^''- Biixtonf supported the motion. opinion. JJq g.^J^;! ^|-,^|. " If the proposition now made were agreed to, we should be able to blockade an enemy's ports with far greater wouhiTim-" efficiency than at present.^ We should be able to prove block- concentrate our fleets upon the enemy's coasts. At the same time, our enemy, not being equal to us in naval force, could not blockade our ports. His navy Avould be practically useless to him." Mr. Newdegate§ said that when the Paris de- claration came to be tested b}^ war, he gate's opin- was afraid that this countr\^ would be ion. . *^ sorely tempted to set it aside. lie trusted that the practical character of the English people would guard them from the de- Paris dechi- i • ,. ,1 1 • ration not lusiou ot pcrpctual pcacc : remembering how many prophecies on this subject had been falsitied in the last twelve years. * Member for Hastings. f Member for Maidstone. J What greater iiiterru])tion to coaunerce ean be imagined than blockades ? See the lord advocate's speech, Hupru, p. 67. ^Member for N. Warwickshire. TO BK SAFE AT SKA. 71 Mr. Massev* as^reed that the state of „ „ ^ ~ Mr. Massev s international law was unsatisfactory — «pi''ion. " Formerly, belligerents carried on war in a form so harsh and oppressive that neutrals suffered almost as much as the enemy, and protested asraiust the tyranny ^^^^' ""^^ """ ' , "^ ^ " •' satisfactory. to which they Avcre subjected. This country had sometimes pressed too heayily on neutrals. But it had now gone to the other extreme ; and by a sort of self- denying ordinance, had transferred to the neutral n.ving ordi- the whole advantage. The old system of convoys for merchant ships was exploded. No war hereafter could be greatly protracted. Our ship-owners were treated with derision, as though they were unduly obtruding themselves and their in- terests. The answer they received was, ' You must submit to the exigencies of war. It is selfish of you to interpose when "■reat interests are at stake.' That was stranjje lanjjuaffe. When we spoke of war, we always had in mind the possibility of a war with France, in which event we should immediately blockade the French ports, and her merchant shipping would immediately disappear from the seas. But then the large war navy of France would prey upon the residue of our commerce not absorbed by neutrals. He could conceive noth- ing more to the interest of this country than to go Tlie motion ® ... ^ o would com- to the length which this motion recommended, and piete tiie • l*iir i s (J Gclfv* thus render the treaty of Paris complete and consist- ration. ent. It had been denied with great emphasis that in time of war there was any respect for private property on land. That was a new doctrine to him. There was ,.. ^ , , AN ar by land nothing better established than the striking differ- and by sea ence between the mode of carrying on war by land and by sea. No country was ever brought to terms of peace by the destruction of its commerce. The military glory of France culminated to its highest point after her Hag had disappeared entirely from the seas. It had been said that a treaty might be abrogated by war. But to say that tirnpiating a treaty, specially providing for the exigencies of [^"^..^'r"'^^ war, should be annulled in war, would be to repre- « Member for Salfurd. 72 PRIVATE PROPERTY sent the powers who were parties to it as acting like children. If one of these powers should attempt to break it, a power so faithless would be visited by the condemnation of Europe ; and no advantage would be gained by infraction of the treaty." Mr. Beiitinck* desired to know whether the Mr. Bon- house or the government- meant to say i<.n. that this country would be bound by the Were we declaration of Paris in the event of w^ar. bound by the Paris Jje would ask his honorable friend not to declara- tiuu? press his resolution. Mr. Bright t remarked, that wlien the Russian Mr. Bright's ^'^^^^ bcgau, thc govemmeut advised the opinion. Queen to issue the proclamation J to which reference had been made more than once — " That proclamation did precisely what the declaration of Paris two years afterward did for all future wars, should such arise. It was found that the old policy was impossi- poiicy nn- blc. Uulcss you could blockadc every port of Rus- sia, American mercantile ships would carry on trade with that country as before the war ; and if they had Russian cargoes in those ships, the Americans would not have permit- ted — he spoke advisedly — without remonstrance, The Ameri- and probably without resistance, the exercise of a have resist- right of Search, and the taking from them the prop- ed searcii. gj-ty of Russia, then the enemy of England. If the government had not taken the course which they did by the Queen's proclamation of 1854, in six months, or less, we should have been involved in a serious discussion with the United States, which might have ended in adding to the calam- ity of the then existing war with Russia the calamity of a war with the United States. He held this, after considering the matter, that the course taken by the noble lord§ — for he was * Member from West Norfolk. J See infra, p. 84. ■j- Member for Birmingham. ^ Lord Palmerston. TO BE SAFE AT SEA. 73 prime minister in 1856 when the congress met at Paris — was one which he could not have avoided; ['io'„'^f,^av'!)'ilu and as it had become inevitable, it was irrevocable *^^'^^ ^^'\ '•'■ _ _ ^ revocable. now. The Liverj)ool chamber of commerce, in a petition which they presented to this house, said that such a proposal as that of the honorable member for Liverpool would shield the shipping interests of this country from greater injury than the fleet of any maritime power could inflict on them in time of war. He agreed that it was wrong to use such lauKuajje as had been used with respect to the shipping interest, he did not say within the walls of that house, but out of doors. Surely the shipping interest had as great a right to be considered as the great cotton-spinners or the land-owners, or any other great class in the country. The proposal therefore, of the honorable member for Liverpool was one which could not be got rid of by the off-hand declaration of a minister, however influential. The proposal was a very sim])le one. It merely said, you have freed the cargo, why not include the ships? He anticipated that, instead of provoking Avar, this proposal would render its occurrence less probable ; while if unhappily it did arise, it would be likely to be brought to an earlier termination. At all events, it must be admitted, the proposal nvas hu- mane and beneficial; and one which followed as a asoquence'to necessary consefiuence of the Paris declaration. V'^ ^''l'*' •' 1 ^ declaiatum. The Secretary for AVar * had made a speech which he had heard with great surprise and regret. What was it that the jurist Wheaton said on the question as to the fate of treat- ies in time of war ? He said that when treaties were meant to provide for war, it would be against every principle of just in- terpretation to hold them extinguished by war. So, Dr. Phil- limore said that the general maxim that war abrogates treaties must be subject to limitation in one case, namely, the case of treaties which provide for the breaking out of war between the contracting parties. But what was done at Paris in 1856 was not an ordinary treaty, but the general concurrence of the civil- ized nations of Europe, enacting a new law which siiould be * Sir George Lewis. 74 PRIVATE PROPERTY admitted and accepted in all future time — an agreement which he undertook to say, if the government ever attempted to break, they would call down upon themselves the condemna- tion of every intelligent man in every intelligent country of the globe." The solicitor-genei'al* jiddref^sed hinisclf, not only to the coniniercial interests likely to geiK-nUs "' be afiected ])v tlie pi'oposed change, but opinion. , , ' , . . . . also to those moral and patriotic consid- erations which, though less evident, are dee[)ly involved in the discussion. lie said — " Two arguments were drawn from the declaration of Paris. In the first place, it was said that there were no rea- Tsvo argu- j-^jj^g j,^ favor of the propositions there laid down which did not equally apply in favor of the proposi- tion of the honorable member for Liverpool. The second argu- ment was, that the effect of the declaration of Paris would be to transfer a large portion of the carrying-trade to neutrals, and to inflict serious injury on our shipping-trade, and on our mercan- tile interests jreneraliv. Those two points embodied the sum and substance of almost all that had been said. The first of those arguments it was not difficult to dispose of. It Tlie Paris =• * dccianitioii was casy to show that there were reasons, clear and portTiiis"'' solid, for that portion of the declaration of Paris as motion. ^Q giving up the right to take enemy's goods out of neutral ships, Avhich would not in any degree whatever apply in favor of the proposition to allow enemy's goods on board enemy's ships or enemy's ships themselves to go free. Neutrals were in a position which, on grounds not only of common justice, but of the mutual interest of belligerents, entitled them to great consideration. The annoyance and disturbance of neutrals by visiting and searching their ships, by interference with their trade, by taking violently away from their ships goods which they had legally and justifiably admitted on board — all these * Sir RjundoU Palmer, who has revised this speech. TO BE SAFE AT SEA. 75 were acts in a high degree injurious to persons who had the strongest claim on the consideration of na- ^eutrais bad ^ . tlie strongest tions in amity with them, though at enmity with claim to con- each other : and at the same time tended in a h\t ' '/ I t round our we entered into the contest, with the declaration of necks we- fc'l t Sd'CllG Paris round our necks, our power would be gone, or our mercantile marine destroyed. He therefore insisted that we were not wrong in placing faith now as much as heretofore in the patriotism, the resources, and the elasticity of the country." Mr. Walpole* concurred generally with the views of Sir Ronndell Palmer ; but ex- „ ,^ , , , ' Mr. Walpole s pressed strong dissatisfaction with the "P'nJoQ- declaration of Paris. He said — " We have abundant evidence to show that when we entered into the declaration of Paris without the concurrence ... 1 • i •■• Declaration 01 America we put our merchants into a position ofparismis- which they ought not to have been compelled to oc- <^'i'«^'^"s- cupy. Although we had the finest ships in the Chinese seas, the mere apprehension of a war deprived them of the trade to which they were entitled, and transferred it to the United States be- cause they were not likely to be engaged in hostilities. Could such a state of things be endured without attempting to put the subject on a more satisfactory footing ? continue? The honorable member for Birmingham told us that the legitimate consequence of the declaration of Paris is that pri- vate property shall be pronounced free, even in belligerent ships. His honored and learned friend the solicitor-general had very justly remarked that if we carried the principle so far the same logic will lead to the abolition of commercial blockades. His *The Right Hon. Sponcer Horatio Walpole, member for Cambridge University. 80 PRTVATE PROPERTY object in rising was to elicit from the government He (lePiied whether this one-sided declaration was to be amend- an answer. ed and placed on a better footing." Lord Palnierstou had no hesitation in saying tliat to 2:0 back to tlie parties who assem- Lord Palmer- ~ *• eton'8 opinion, bled at Paris, and to ask them to rescind those resolutions would be a course which no gentleman could seriously think the ffov- Paris .lecia- emmcnt was likely to adopt, or that, if ration inipos- ^ *• _ "'^i*^- adopted, the government was likely to get the other parties to agree to it — " The proposition made by the honorable member for Liver- pool, that we should agree that private property by The motion. ^^.^ sliould be exempt from capture, was said to be a no logical de- ^ . duction from loaimpVon southern ports of America. He com- piociHma" plained that the British garvernment had not taken steps to prevent breaches of that block- ade, which was not in his opinion, to be held inef- fective merely because the Americans "had not been able to accomplish an impossibility, viz : the hermeticall}^ sealing of 3,000 miles of coast." The honorable mover further insisted that the govern- ment ought to enforce the Queen's proclamation against furnishing the belligerents with articles contraband of war. Sir Roundell Palmer (solicitor-general): I think it desirable that a few words should be said to cor- rect a total misapprehension of a matter of law, into which the honorable gentleman opposite has fixllen. He implies, by the terms of his notice of motion, and more distinctly stated in his speech, that all masters of British merchant vessels who may have run the blockade with articles contra- band of war on board have been guilty of illegal acts, in violation of her majesty's proclamation, which the government of this country, having their attention called to them, ought to have in- * Revised. Times, 2lst February, 1862. 88 SIR ROUNDELL PALxMER terfered to prevent, but bad not done so. He bas also suggested tbat tbe autborities of tbe port of Nassau must be subject to serious blame for liav- ing permitted sbips under similar circumstances to call at tbat port and to take in supplies, and to bave tbe benefit of calling and remaining tbere wben tbey bad on board articles contraband of war, wbicb tbe bonorable gentlemen seemed to supposeatbat ber majesty's proclamation bad made it illegal for tbem to bave on board, and wbicb tberefore tbey could not be permitted to carry witbout a violation of neutralit}'. In all tbese respects tbe bonorable gentleman bas totally mis- understood tbe law. Tbis country is governed by law, and except as far as ber majesty's govern- ment bave powers by law to control tbe action of private Britisb subjects, wbetber masters of sbips or otbers, of course tbey are perfectly powerless in tbe matter. Tbe only law wbicb enables ber majesty's government to interfere in sucb cases is tbat commonly called tbe foreign enlistment act, and tbe wbole nature and scope of tbat act is suf- ficiently and sbortly set out in tbe title. It is "an act to prevent tbe enlistment and engagement of ber majesty's subjects to serve in foreign service, and tbe fitting out or equipping in ber majesty's dominions vessels for warlike purposes witbout ber majesty's license." Tbat act does not toucb in any way wbatever private mercbant vessels, wbicb may carry cargoes, contraband or not con- traband, between tbis country or any of tbe do- minions of ber majest}^ and an}- port in a bel- ON THE queen's PROCLAMATION. 89 lio^ereiit country, whether under hlockade or not; and the government of this country, and the governments of our colonial possessions, have no power whatever to interfere with private vessels under such circumstances. It is perfectly true that in the Queen's proclamation there is a gen- eral warning, addressed to all the Queen's suh- jects, that they are not, either in violation of their duty to the Queen as suhjects of a neutral sover- eign, or in violation and contravention of the law of nations, to do various things, one of which is carrying articles considered and deemed to he contraband of war accordinsc to law or the mod- ern ' usages of nations, for the use or service of either of the contending parties. That warning is addressed to them to apprise them that if they do these things they will have to undergo the penal consequences hy the statute or by the law" of nations in that behalf imposed or denounced. In those cases in which the statute is silent,* the government are powerless, and the law of nations comes in. The law of nations exposes such per- sons to have their sliips seized and their goods taken and subjected to confiscation, and it further deprives them of the right to look to the govern- ment of their own country for any protection. And this principle of non-interference in things which the law does not enable the government to deal witli, so far from being a violation of the duty of neutrality — which the government are * The statute is ,«ilent as to contniliand ari'l Itlookadc. 90 SIR ROUNDELL PALMER sincerely anxious to comply with — is in accord- ance with all the principles which have been laid down by jurists, and more especially by the great jurists of the United States of America. In order that the honorable gentleman may understand exactly how the case stands, I may be permitted to read a short passage from one of the works of these writers. Wheaton, who, as everybody knows, has written one of the most valuable treatises on the subject that ever was composed says — *' It is not the practice of nations to undertake to prohibit their own subjects, by previous laws, from traftickino: in articles contraband of war. Such trade is carried on at the risk of those en- gaged in it, under the liabilities and penalties prescribed by the law of nations, or particular treaties." Wheaton then goes on to justify the conduct of the United States in not interfering to prevent the supply of arms to Texas, then at war witlt Mexico, and says — "The government is not bound to prevent it, and could not have prevented it without a mani- fest departure from the principle of neutrality, and is in no way answerable for the consequences." Chancellor Kent, in his scarcely less admirable work, says — ."It is a general understanding that the powers at war may seize and contiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of ON THE queen's proclamation. 91 a breach of neuti-ality in the neutral sovereign himself. It was contended, on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the bel- ligerent powers. Bat it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent pur- chaser, or carry themselves to the belligerent powers contraband articles, subject to the right of seizure m transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to trans- port, and of the hostile power to seize, are con- flicting rights, and neither party can charge the other with a criminal act." I think, therefore, it is very clear that the gov- ernment at home, and the colonial authorities at I^assau, have taken the only course which it was possible to take consistently with the law of the land, which they were bound in any case to fol- low, or with the recognized principles and cus- toms of international law, and more especially with those principles and customs as recognized and acted upon by the United States themselves. 8 92 THE queen's waiver. THE QUEEN'S WAIVER OF RIGHT ON THE EYE .OF THE RUSSIAN WAR, 28th MARCH, 1854. Her majesty, the Queen of the united kingdom of Great Britain and Ireland, having The Queen's i n t i j i waiver as to been Compelled to take up arms in sup- neutral flag. , /? n • j • v i • port 01 an ally, is desirous or rendering the war as little onerous as possible to the powers with whom she remains at peace. To preserve the commerce of neutrals from all unneccessary obstruction, her majesty is willing, for the present, to. waive a part of the belligerent rights appertaining to her by the law of nations. It is impossible for her majesty to forego her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's dis- patches ; and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, har- bors, or coasts. , But her majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war. It is not her majesty's intention to claim the confiscation of neutral property, not being con- traband of war, found on board enemy's ships ; and her majesty further declares, that being anx- ious to lessen as much as possible the evils of war and to restrict its operations to the regularly or- ganized forces of the country, it is not her pres- ent intention to issue letters of marque for the commissioning of privateers. ON THE NEUTRAL FLAG. 93 SIR WILLIAM MOLESWORTH'S SPEECH ON THE NEUTRAL FLAG.* On the 4tli July, 1854, Sir William Molesworth delivered, in the House of Commons, a , , 'Sir William most learned and powerful sDeech in ^i^'iesworth ^ ^ on neutral support of the maxim, "free ships make "''^• free goods." He sho^ved that the opposite rule of the Consolato del Mare was early and largely dis- sented from. '^At various times," said Sir Wil- liam, f ''the great majority of European states have been induced to condemn the rule of cap- turing enemy's goods on board neutral ships, and to expunge that rule from the public law of Eu- rope. The first English treaty which contains the principle 'free ships, free goods' was that of West- minster, in 1654, between the King of Portugal and Oliver Cromwell. It continued in force till 1810, that is for 156 years. In 1655, the lord protector concluded a similar treaty with Louis XIY. How long it continued in force I am unable to say, but in 1677 the rule 'free ships, free goods' was in- serted in the treaty of St. Germain en Laye, and was the rule of our amicable relations with France for the next 116 years. From 1677 till 1793 the all but invariable rule of our friendly intercourse with France was that free ships should give free- dom to goods. The first of our treaties with * Abridged from Hansard. t Replying to Mr. John George Phillimore. 94 SIR WILLIAM MOLESWORTH Spain which contained this principle was that of 1665. From that period till 1796, thirteen treat- ies were concluded with Spain, in every one of which there is an article which either expressly declares that free ships shall give freedom to goods, or renews a treaty which contains that posi- tion. In our treaties with the IFnited Provinces the invariable rule of our intercourse from 1667 to 1780 was, that the ships of the United Provin- ces should make free the goods of the enemies of England. The treaties between England and the great maritime powers of Western Europe show that between 1654 and 1793 the all but invariable rule was 'free ships, free goods.' I must, how- ever, admit that the theory of the great maritime powers as expressed in treaties was at variance with their practice during war. The reason is obvious. During peace men's minds have a ten- dency to conform to what ought to be the rule of international law. But in war passion, hatred, and seeming necessity and the fancied interest of the moment are apt to determine the actions of powerful belligerents who, often relying on their might, set at defiance the best established rules of war. Every one of the great maritime powers has repeatedly treated neutrals as subjects ; and has confiscated not only enemy's goods on board neu- tral ships, but neutral ships for containing ene- my's goods, and has even prohibited all neutral commerce with enemies. I^or has this country shown greater respect than our neighbors for the rights of neutrals. Bj^ means of fictitious block- ON THE NEUTRAL FLAG. 95 ades we have repeatedly claimed the right of stopping the trade of neutrals with our enemies. I must acknowledge the rule free ships, free goods, is not contained in some of the treaties between the northern and western powers. But I have shown that the general rule of amicable intercourse, as established by treaty between the northern and western powers, with the exception of England — between the United States and the old and the new world, and between the Ottoman Porte and the great powers of Europe was free ships, free goods. I am, therefore, entitled to as- sert that though it has been the usage to act upon the rule of capturing enemy's goods on board neu- tral ships, yet that usage has been, and still is held by the great majority of civilized nations to be at variance with correct notions of what is right and just. It is said that the fact that so many treaties contain the rule free ships, free goods, and , so few the rule of confiscating enemy's goods on board neutral ships proves that the lat- ter rule was the general rule of public law. The friends of the extension of neutral rights do not deny that this was the general rule of the public law of England, and of many other nations. They merely assert that it ought not to be the rule of international law, and that it is contrary to the opinions of the majoritj^ of civilized na- tions." IINTDEX. PAOB A d libitum doctrine of contraband 25 Afghanistan, destruction of fruit trees in 4 Alexander, the Czar, defensive destruction of property by 7 American Colonies, rebellion of 15 American war, regularity of 15 Arbitration — See Mediation. Arms, etc., whether war is prolonged by 20 Asylum given by neutrals to belligerents 17 Atherton, Sir W., as to immunity to private property 62 Attorney-General — see Atherton, Sir W. Bajazet, a prisoner of war 6 Baring, Mr. T., M. P., immunity to private property at sea 66 Belligerents in their enemy's country — (see Table of Contents, sec. i) 1 in their own country — (see Table of Contents, sec. ii). 7 at sea — (see Table of Contents, sec. iii) 9 Belligerents and Neutrals — (see Table of Contents, sec. iv) 14 Bentinck, Mr., M. P., as to immunity to private property 72 Blockades — (see Table of Contents, sec. vi) 27 Paris declarations as to 51 Queen's proclamation as to 51 Bowyer, Sir G., M. P., as to immunity to private property 63 Brienne, General, at the siege of Almeida 4 Bright, Mr., M. P., as to immunity to private property 72 Brougham, Lord, as to shortening wars by early severities 2 the burning of Joan of Arc (note) 6 the origin of law of nations (nole) 29 Brune, Marshal, as to destruction of the Dutch dikes 3 Burke, Mr., as to the treatment of a conquered province, etc 3 as to defence of towns 9 Buxton, Mr., M. P., immunity to private property 70 Byukershoek, as to the treatment of prisoners 6 98 INDEX. PAOB Captors, encouragement to 41-43 Cave, Mr., as to immunity to private property 69 Changes in the mariti le law of nations — (see Table of Contents, sec. viii and ix) 44 Charleston stone fleet 5 Children, consideration for, during war 5 Civil law not the foundation of the law of nations 28 Cochrane, Mr. B., as to immunity to private property 63 Cnmmittee of Commons as to immunity of private property 58 Commons, House of, present state of sentiment in, as to immunity to private property at sea during war— (see Table of Con- tents, sec. x) 61 Opinion of Committee of 58 Contraband of war — See Table of Contents, sec. v. Its principle examined 19-22 Costs and damages when given to neutrals 41 when awarded against captors, u>!ually paid by government 42 Crimea, the war in 4-5 Danger, the test of efficiency of blockade 32 Declaration of Paris, 1856, does not define contraband 25 silent as to stoppage and seamh 25 See Table of Contents, sec. viii. Defence of towns 8 Derby, Lord, as to binding force of the Declaration of Paris 45 Diebitsch, Count, his conduct in Roumelia in 1829 2 Disraeli, Mr., a:« to immunity to private property 81 Ediiibaryh Review quoted, as to Lord Stowell 37, 38 Ellenborougb, Lord, as to contraband 23 Fire-arms, etc., do they prolong war ? 20 Fishing-boats of enemy 12 Fortified town, defence of 8 Forts, etc., whether they may be destroyed during war 4 ** Free ships, free goods," established by the Declaration of Paris.. 47 Sir W. Moleswortb's speech as to 93 Goldsmidt, Sir F., as to immunity to private property 69 Gower, Mr., as to immunity to private property 69 Granville, Earl, as to contraband 23 Declaration of Paris 46 the adoption of the maxim "Free ships, free goods " 51 Gulliver, advice of, to the King of Brobdignag (note) 22 INDEX. 99 PAGE Harbors may not always be closed by owners 8 Hautefeuille, M., as to deeming wars just (note) 16 the freedom of enemy's goods under neutral flag 48 JIawkwood, Sir John 8 Hobbes (note) 39 Horner, Mr., his opinion of Lord Stowell 39 Horsfall, Mr., M. P., his motion as to private property at sea 61 Hume, David, as to gunpowder 21 Italian war of 1859, respect to private property 3 Intermission of blockade 33 Jacopo del Verme, destruction of the dikes of the Adige by 8 Joan of Arc (note) 6 Just war, what must be so deemed 16 Kent, Chancellor, as to difference between land and sea warfare. . . 11 Kingsdown, Lord, as to contraband 23 encouragement to captors 43 costs and damages to neutrals 44 Law of nations characterized 1 Lawi'ence, Mr., as to Lord Stowell 40 Leniency and forbearance on land now enjoined on belligerents — not so at sea 2 Lewis, Sir (x. C, as to immunity to private property 65 Licenses to trade with enemy (note) 55 Liddell, Mr., as to immunity to private property 63 Lindsey, Mr., as to do. 66 Lord Advocate — (see Moncrieff, Mr.) Louis XIV, his destruction of the Dutch dikes 4 his treatment of prisoners 5 Low Countries, revolt of, against Spain 4 Lushington, Dr., as to costs and damages to neutrals 42 as to destruction of enemy's merchant vessels.... 10 Maritime law of nations, license given by it for plunder (see the Table of Contents, sec. iii) 9 Maritime law of nations, its partiality to belligerents 19 late changes in — (see Table of Contents, sec. viii) 'I'i proposed changes in — (see Table of Con- tents, sec. ix) 61 Massey, Mr., a passage in his history considered 15 as to right of searching ships under convoy (note). . 40 as to immunity to private property during war 71 y 100 CONTENTS. PAOK Mediatiou, protocol as to (note) 58 Medicinal plants deemed contraband ► 24 Merchants' opinions as to immunity to private property 58 Molesworth, Sir W., speech on the neutral flag 98 Moncrieff', Mr., as to immunity to private property 67 Napoleon I, as to immunity to private property 55 Napoleon III '6 Nations, law of. See Law of Nations, Maritime Law of Na- tions, etc. Neutrals, position of, during war — (see Table of Contents, sec. iv). 16 must hold regular war just .16 asylum granted by, to belligerent vessels 17 must not assist belligerents 19 may trade with them 19 restriction 20 ships of, liable to stoppage and search — (see Table of Contents, sec. v) 22 costs and damage to 41 Neutrals and belligerents — (see Table of Contents, sec. iv) 14 Neutral goods under enemy's flag exempted from capture by the Paris declaration 51 Newdegate, Mr., as to immunity to private property 70 Northcote, Sir S., as to immunity to private property 67 Odessa, bombardment of 4 supposed case as to 8 Orders in Council bind the Prize Court .37-40 of 1807 38 Palmer, Sir Eoundell, as to blockades 32 speech as to immunity to private property at sea 74 speech as to the Queen's proclamation 87 Palmerston, Lord, as to the maxim " Free ships, free goods " 49 Palmerston, Lord, as to proposed immunity to enemy's merchant ships 54, 56, SO Paper Blockades 30 Paris Declarations. See Declaration of Paris and Table of Con- tents, sec. viii. Peter the Great, defensive destruction of property by 7 Phillimore, Dr., as to the Orders in Council of 1807 38 Prisoners of war 6 Privateering abolished by the Paris declaration 46 not by the United States 46 CONTENTS. 101 PAGE Prize, becomes the captors' 43 as a mode of remuneration 34 Prize court bound to obey one of the litigants before it 37, 40 Prize jurisdiction — (see Table of Contents, sec. vii) 35 Proclamation of the Queen as to contraband 22 as to blockades 27, 31 set out 87 Property of enemy on land how treated 2 at sea, low treated — (see Table of Contents, sec. iii) 10 Proposal that it should not be liable to cap- ture — (see Table of Contents, sec. ix) 52 Protocol as to Mediation (note) 53 Provisions, when contraband 22, 23 Quasi-contraband 24 Regular war must be deemed just ; qrnvre 16 Revival of blockade 33 Roman law not the foundation of the law of nations (note) 28 Russell, Earl, as to Paris declaration 45 as to immunity to enemy's private property 59 Sarrazin, General, as to destruction of Fort of Almeida . 5 Scott, Sir William. See Stowell, Lord. Search 25 Solferino, the battle of 6 Solicitor-General. See Palmer, Sir Roundell. Spain, revolt of Low Countries against 14 Stoppage to search for contraband 25 to ascertain national character 26 Stowell, Lord, his position and conduct characterized 38 his judgments as to prize jurisdiction contrasted. .35-38 revision of judgments by (note) 24 his rules as to costs and damages to neutrals 41 corrected by Privy Council 43 as to when enemy's property may be destroyed 10 as to enemy's fishing-boats 12 as to contraband 24 as to blockade 30 Story, Mr. Justice, as to blockade 31 Timour 6 Towns, mercantile, defence of 9 fortified, defence of 9 Trade between neutrals and belligerents 19 102 CONTENTS. PAGE Vane, Lord H., as to immunity to private property 70 Vattel, as to leniency in war 2 as to conduct of belligerents in their own country 7 as to deeming wars just (note) 16 Visitation. See S oppage. Voltaire, as to destruction of the Dutch dikes by Louis XIV 4 Waiver, by the Queen, of right, on eve of the Russian war, set out.. ^2 Walpole, Mr., as to immunity to private property 79 War,- modern practice of, diffei-ent from ancient 1 what property respected during 4 must be regular to give belligerent rights 14 if regular, whether to be deemed just 16 Wellington, Duke of, his respect for private property in war 2 Wheaton, Mr., his remarks as to Lord Stowell 40 William the Silent, defensive destruction of property by 7 Women, consideration for, during war 5 York, Duke of, proposed destruction of the Dutch dikes by 3 ^P^'