CHAPTER III.

NAVAL WARFARE.

_Una et ea vetus causa bellandi est profunda cupido imperii et

divitiarum._--SALLUST.

Robbery the first object of maritime warfare--The piratical origin

of European navies--Merciless character of wars at sea--Fortunes

made by privateering in England--Privateers commissioned by

the State--Privateers defended by the publicists--Distinction

between privateering and piracy--Failure of the State to regulate

privateering--Privateering condemned by Lord Nelson--Privateering

abolished by the Declaration of Paris in 1856--Modern feeling

against seizure of private property at sea--Naval warfare in days

of wooden ships--Unlawful methods of maritime war--The Emperor

Leo VI.’s ‘Treatise on Tactics’--The use of fire-ships--Death

the penalty for serving in fire-ships--Torpedoes originally

regarded as ‘bad’ war--English and French doctrine of rights of

neutrals--Enemy’s property under neutral flag secured by Treaty of

Paris--Shortcomings of the Treaty of Paris with regard to:--(1)

A definition of what is contraband; (2) The right of search of

vessels under convoy; (3) The practice of embargoes; (4) The _jus

angariæ_--The International Marine Code of the future.

The first striking difference between military and naval warfare is

that, while--in theory, at least--the military forces of a country

confine their attacks to the persons and power of their enemy, the

naval forces devote themselves primarily to the plunder of his

property and commerce. If on land the theory of modern war exempts

from spoliation all of an enemy’s goods that do not contribute to his

military strength, on sea such spoliation is the professed object of

maritime warfare. And the difference, we are told, is ‘the necessary

consequence of the state of war, which places the citizens or subject

of the belligerent states in hostility to each other, and prohibits

all intercourse between them,’[64] although the very reason for the

immunity of private property on land is that war is a condition of

hostility between the military forces of two countries, and not between

their respective inhabitants.[64]

Writers on public law have invented many ingenious theories to explain

and justify, on rational grounds, so fundamental a difference between

the two kinds of warfare. ‘To make prize of a merchant ship,’ says

Dr. Whewell, ‘is an obvious way of showing (such a ship) that its own

State is unable to protect it at sea, and thus is a mode of attacking

the State;’[65] a reason that would equally justify the slaughter

of nonagenarians. According to Hautefeuille, the differences flows

naturally from the conditions of hostilities waged on different

elements, and especially from the absence at sea of any fear of a

rising _en masse_ which, as it may be the result of wholesale robbery

on land, serves to some extent as a safeguard against it.[66]

A simpler explanation may trace the difference to the maritime Piracy

which for many centuries was the normal relation between the English

and Continental coasts, and out of which the navies of Europe were

gradually evolved. Sir H. Nicolas, describing the naval state of the

thirteenth and early part of the fourteenth century, proves by abundant

facts the following picture of it: ‘During a truce or peace ships were

boarded, plundered, and captured by vessels of a friendly Power as if

there had been actual war. Even English merchant ships were attacked

and robbed as well in port as at sea by English vessels, and especially

by those of the Cinque Ports, which seem to have been nests of robbers;

and, judging from the numerous complaints, it would appear that a

general system of piracy existed which no government was strong enough

to restrain.’[67]

The governments of those days were, however, not only not strong

enough to restrain, but, as a rule, only too glad to make use of these

pirates as auxiliaries in their wars with foreign Powers. Some English

ships carrying troops to France having been dispersed by a storm, the

sailors of the Cinque Ports were ordered by Henry III., in revenge, to

commit every possible injury on the French; a commission undertaken

with such zeal on their part that they slew and plundered not only all

the foreigners they could catch, but their own countrymen returning

from their pilgrimages (1242). During the whole reign of Henry IV.

(1399-1413), though there existed a truce between France and England,

the ordinary incidents of hostilities continued at sea just as if the

countries had been at open war.[68] The object on either side was

plunder and wanton devastation; nor from their landing on each other’s

coasts, burning each other’s towns and crops, and carrying off each

other’s property, did the country of either derive the least benefit

whatever. The monk of St. Denys shows that these pirates were really

the mariners on whom the naval service of England chiefly depended in

time of war, for he says, in speaking of this period: ‘The English

pirates, discontented with the truce and unwilling to abandon their

profitable pursuits, determined to infest the sea and attack merchant

ships. Three thousand of the most skilful sailors of England and

Bayonne had confederated for that purpose, and, as was supposed, with

the approbation of their king.’ It was not till the year 1413 that

Henry V. sought to put a stop to the piratical practices of the English

marine, and he then did so without requiring a reciprocal endeavour on

the part of the other countries of Europe.[69]

Maritime warfare being thus simply an extension of maritime piracy, the

usages of the one naturally became the usages of the other; the only

difference being that in time of war it was with the licence and pay of

the State, and with the help of knights and squires, that the pirates

carried on their accustomed programme of incendiarism, massacres, and

robberies.

From this connection, therefore, a lower character of warfare prevailed

from the first on sea than on land, and the spirit of piracy breathed

over the waters. No more mercy was shown by the regular naval service

than was shown by pirates to the crew of a captured or surrendered

vessel, for wounded and unwounded alike were thrown into the sea. When

the fleet of Breton pirates defeated the English pirates in July 1403,

and took 2,000 of them prisoners, they threw overboard the greater

part of them;[70] and in the great sea-fight between the English and

Spanish fleets of 1350, the whole of the crew of a Spanish ship that

surrendered to the Earl of Lancaster were thrown overboard, ‘according

to the barbarous custom of the age.’[71]

Two other stories of that time still further display the utter want

of anything like chivalrous feeling in maritime usages. A Flemish

ship, on its way to Scotland, having been driven by a storm on the

English coast, near the Thames, and its crew having been slain by the

inhabitants, the king rewarded the assassins with the whole of the

cargo, and kept the ship and the rigging for himself (1318).[72] In

1379, when a fleet of English knights, under Sir John Arundel, on its

way to Brittany, was overtaken by a storm, and the jettison of other

things failed to relieve the vessels, sixty women, many of whom had

been forced to embark, were thrown into the sea.[73]

The piratical origin, therefore, of the navies of Europe sufficiently

explains the fact that plunder, which is less the rule than an incident

of war on land, remains its chief object and feature at sea. The fact

may further be explained by the survival of piracy long sanctioned by

the States under the guise of Privateering. If we would understand the

popularity of wars in England in the old privateering days, we must

recall the magnificent fortunes which were often won as prize-money in

the career of legalised piracy. During the war which was concluded in

1748 by the treaty of Aix-la-Chapelle, England captured of French and

Spanish ships collectively 3,434, whilst she herself lost 3,238; but,

small compensation as this balance of 196 ships in her favour may seem

after a contest of some nine years, the pecuniary balance in her favour

is said to have amounted to 2,000,000_l._[74]

We now begin to see why our forefathers rang their church bells at the

announcement of war, as they did at the declaration of this one against

Spain. War represented to large classes what the gold mines of Peru

represented to Spain--the best of all possible pecuniary speculations.

In the year 1747 alone the English ships took 644 prizes; and of what

enormous value they often were! Here is a list of the values which the

cargoes of these prizes not unfrequently reached:

That of the ‘Héron,’ a French ship, 140,000_l._

That of the ‘Conception,’ a French ship, 200,000_l._

That of ‘La Charmante,’ a French East Indiaman, 200,000_l._

That of the ‘Vestal,’ a Spanish ship, 140,000_l._

That of the ‘Hector,’ a Spanish ship, 300,000_l._

That of the ‘Concordia,’ a Spanish ship, 600,000_l._[75]

Two Spanish register ships are recorded to have brought in 350_l._

to every foremast man who took part in their capture. In 1745 three

Spanish vessels returning from Peru having been captured by three

privateersmen, the owners of the latter received to their separate

shares the sum of 700,000_l._, and every common seaman 850_l._ Another

Spanish galleon was taken by a British man-of-war with a million

sterling in bullion on board.

These facts suffice to dispel the wonder we might otherwise feel at

the love our ancestors had for mixing themselves up, for any pretext

or for none, in hostilities with Continental Powers. Our policy was

naturally spirited, when it meant chances like these for all who lacked

either the wit or the will to live honestly, and returns like these on

the capital invested in the patriotic equipment of a few privateers.

But what advantage ultimately accrued to either side, after deduction

made for all losses and expenses, or how far these national piracies

contributed to the speedier restoration of peace, were questions that

apparently did not enter within the range of military reasoning to

consider.

Everything was done to make attractive a life of piracy spent in the

service of the State. Originally every European State claimed some

interest in the prizes it commissioned its privateers to take; but the

fact that each in turn surrendered its claim proves the difficulty

there was in getting these piratical servants to submit their plunder

to the adjudication of the prize-courts. Originally all privateers

were bound to deliver captured arms and ammunition to their sovereign,

and to surrender a percentage of their gains to the State or the

admiral; but it soon came to pass that sovereigns had to pay for the

arms they might wish to keep, and that the percentage deducted was

first diminished and then abolished altogether. At first 30 per cent.

was deducted in Holland, which fell successively to 18 per cent., to

10 per cent., to nothing; and in England the 10 per cent. originally

due to the admiral was finally surrendered.[76] The crew also enjoyed

an additional prize of money for every person slain or captured on an

enemy’s man-of-war or privateer, and for every cannon in proportion to

its bore.[77]

Of all the changes of opinion that have occurred in the world’s

history, none is more instructive than that which gradually took place

concerning privateering, and which ended in its final renunciation by

most of the maritime Powers in the Declaration of Paris in 1856.

The weight of the publicists’ authority was for long in its favour.

Vattel only made the proviso of a just cause of war the condition for

reconciling privateering with the comfort of a good conscience.[78]

Valin defended it as a patriotic service, in that it relieved the State

from the expense of fitting out war-vessels. Emerigon denounced the

vocation of pirates as infamous, while commending that of privateers

as honest and even glorious. And for many generations the distinction

between the two was held to be satisfactory, that the privateer acted

under the commission of his sovereign, the pirate under no one’s but

his own.

Morally, this distinction of itself proved little. Take the story of

the French general Crillon, who, when Henri III. proposed to him to

assassinate the Duc de Guise, is said to have replied, ‘My life and my

property are yours, Sire; but I should be unworthy of the French name

were I false to the laws of honour.’ Had he accepted the commission,

would the deed have been praiseworthy or infamous? Can a commission

affect the moral quality of actions? The hangman has a commission,

but neither honour nor distinction. Why, then, should a successful

privateer have been often decorated with the title of nobility or

presented with a sword by his king?[79]

Historically, the distinction had even less foundation. In olden times

individuals carried on their own robberies or reprisals at their own

risk; but their actions did not become the least less piratical when,

about the thirteenth century, reprisals were taken under State control,

and became only lawful under letters of marque duly issued by a

sovereign or his admirals. In their acts, conduct, and whole procedure,

the commissioned privateers of later times differed in no discernible

respects from the pirates of the middle ages, save in the fact of being

utilised by the State for its supposed benefit: and this difference,

only dating as it did from the time when the prohibition to fit out

cruisers in time of war without public authority first became common,

was evidently one of date rather than of nature.

Moreover, the attempt of the State to regulate its piratical service

failed utterly. In the fourteenth century it was customary to make

the officers of a privateer swear not to plunder the subjects of the

commissioning belligerent, or of friendly Powers, or of vessels

sailing under safe-conducts; in the next century it became necessary,

in addition to this oath, to insist on heavy pecuniary sureties;[80]

and such sureties became common stipulations in treaties of peace.

Nearly every treaty between the maritime Powers after about 1600

contained stipulations in restraint of the abuses of privateering;

on the value of which, the complaints that arose in every war that

occurred of privateers exceeding their powers are a sufficient comment.

The numerous ordinances of different countries threatening to punish

as pirates all privateers who were found with commissions from _both_

belligerents, give us a still further insight into the character of

those servants of the State.

In fact, so slight was the distinction founded on the possession of

a commission, that even privateers with commissions were sometimes

treated as actual pirates and not as legitimate belligerents. In the

seventeenth century, the freebooters and buccaneers who ravaged the

West Indies, and who consisted of the outcasts of England and the

Continent, though they were duly commissioned by France to do their

utmost damage to the Spanish colonies and commerce in the West Indies,

were treated as no better than pirates if they happened to fall into

the hands of the Spaniards. And especially was this distinction

disallowed if there were any doubt concerning the legitimacy of the

letters of marque. England, for instance, refused at first to treat

as better than pirates the privateers of her revolted colonists in

America; and in the French Revolution she tried to persuade the Powers

of Europe so to deal with privateers commissioned by the republican

government. Russia having consented to this plan, its execution was

only hindered by the honourable refusal of Sweden and Denmark to accede

to so retrograde an innovation.[81]

An illusory distinction between the prize of a pirate and that of

a privateer was further sustained by the judicial apparatus of the

prize-court. The rights of a captor were not complete till a naval

tribunal of his own country had settled his claims to the ships or

cargo of an enemy or neutral. By this device confiscation was divested

of its likeness to plunder, and a thin veneer of legality was laid on

the fundamental lawlessness of the whole system. Were it left to the

wolves to decide on their rights to the captured sheep, the latter

would have much the same chance of release as vessels in a prize-court

of the captor. A prize-court has never yet been equally representative

of either belligerent, or been so constituted as to be absolutely

impartial between either.

But, even granted that a prize-court gave its verdicts with the

strictest regard to the evidence, of what nature was that evidence

likely to be when it came chiefly from the purser on board the

privateer, whose duty it was to draw up a verbal process of the

circumstances of every visit or capture, and who, as he was paid and

nominated by the captain of the privateer, was dependent for his

profits in the concern on the lawfulness of the prizes? How easy to

represent that a defenceless merchant vessel had offered resistance to

search, and that therefore by the law of nations she and her cargo

were lawful prize! How tempting to falsify every circumstance that

really attended the capture, or that legally affected the captors’

rights to their plunder!

These aspects of privateering soon led unbiassed minds to a sounder

judgment about it than was discernible in received opinion. Molloy, an

English writer, spoke of it, as long ago as 1769, as follows: ‘It were

well they (the privateers) were restrained by consent of all princes,

since all good men account them but one remove from pirates, who

without any respect to the cause, or having any injury done them, or so

much as hired for the service, spoil men and goods, making even a trade

and calling of it.’[82] Martens, the German publicist, at the end of

the same century, called privateering a privileged piracy; but Nelson’s

opinion may fairly count for more than all; and of his opinion there

remains no doubt whatever. In a letter dated August 7, 1804, he wrote:

‘If I had the least authority in controlling the privateers, whose

conduct is so disgraceful to the British nation, I would instantly take

their commissions from them.’ In the same letter he spoke of them as

a horde of sanctioned robbers;[83] and on another occasion he wrote:

‘The conduct of all privateering is, as far as I have seen, so near

piracy, that I only wonder any civilised nation can allow them. The

lawful as well as the unlawful commerce of the neutral flag is subject

to every violation and spoliation.’[84] Yet it was for the sake of

such spoliation, which England chose to regard as her maritime right

and to identify with her maritime supremacy, that, under the pretext

of solicitude for the liberties of Europe, she fought her long war

with France, and made herself the enemy in turn of nearly every other

civilised Power in the world.

The Declaration of Paris, the first article of which abolished

privateering between the signatory Powers, was signed by Lord Clarendon

on behalf of England; but on the ground that it was not formally a

treaty, never having been ratified by Parliament or the Crown, it has

actually been several times proposed in the English Parliament to

violate the honour of England by declaring that agreement null and

void.[85] Lord Derby, in reference to such proposals, said in 1867:

‘We have given a pledge, not merely to the Powers who signed with

us, but to the whole civilised world.’ This was the language of real

patriotism, which esteems a country’s honour its highest interest; the

other was the language of the plainest perfidy. In November 1876, the

Russian Government was also strongly urged, in the case of war with

England, to issue letters of marque against British commerce, in spite

of the international agreement to the contrary.[86] It is not likely

that it would have done so; but these motions in different countries

give vital interest to the history of privateering as one of the

legitimate modes of waging war.

Moreover, since neither Spain, the United States, nor Mexico signed

the Declaration of Paris, war with any of them would revive all the

atrocities and disputes that have embittered previous wars in which

England has been engaged. The precedent of former treaties, such as

that between Sweden and the United Provinces in 1675, the United States

and Prussia in 1785, and the United States and Italy in 1871, by which

either party agreed in the event of war not to employ privateers

against the other, affords an obvious sample of what diplomacy might

yet do to diminish the chances of war between the signatory and the

non-signatory Powers.

The United States would have signed the Declaration of Paris if it had

exempted the merchant vessels of belligerents as well from public armed

vessels as from privateers: and this must be looked to as the next

conquest of law over lawlessness. Russia and several other Powers were

ready to accept the American amendment, which, having at first only

fallen through owing to the opposition of England, was subsequently

withdrawn by America herself. Nevertheless, that amendment remains the

wish not only of the civilised world, but of our own merchants, whose

carrying trade, the largest in the world, is, in the event of England

becoming a belligerent, in danger of falling into the hands of neutral

countries. In 1858 the merchants of Bremen drew up a formal protest

against the right of ships of war to seize the property and ships of

merchants.[87] In the war of 1866 Prussia, Italy, and Austria agreed

to forego this time-honoured right of mutual plunder; and the Emperor

of Germany endeavoured to establish the same limitation in the war of

1870. The old maxim of war, of which the custom is a survival, has

long since been disproved by political economy--the doctrine, namely,

that a loss to one country is a gain to another, or that one country

profits by the exact extent of the injury that it effects against the

property of its adversary. Having lost its basis in reason, it only

remains to remove it from practice.

If we turn for a moment from this aspect of naval warfare to the actual

conduct of hostilities at sea, the desire to obtain forcible possession

of an enemy’s vessels must clearly have had a beneficial effect in

rendering the loss of life less extensive than it was in battles on

land. To capture a ship, it was desirable, if possible, to disable

without destroying it; so that the fire of each side was more generally

directed against the masts and rigging than against the hull or lower

parts of the vessel. In the case of the ‘Berwick,’ an English 74-gun

ship, which struck her colours to the French frigate, the ‘Alceste,’

only four sailors were wounded, and the captain, whose head was taken

off by a bar-shot, was the only person slain; and ‘so small a loss was

attributed to the high firing of the French, who, making sure of the

‘Berwick’s’ capture, and wanting such a ship entire in their fleet,

were wise enough to do as little injury as possible to her hull.’[88]

The great battle between the English and Dutch fleets off Camperdown

(1795) was exceptional both for the damage inflicted by both on the

hulls of their adversaries, and consequently for the heavy loss of

life on either side. ‘The appearance of the British ships at the close

of the action was very unlike what it generally is when the French

or Spaniards have been the opponents of the former. Not a single mast

nor even a top-mast was shot away; nor were the rigging and sails of

the ships in their usual tattered state. It was at the hulls of their

adversaries that the Dutchmen had directed their shot.’[89] As the

English naturally retaliated, though ‘as trophies the appearance of

the Dutch prizes was gratifying,’ as ships of war ‘they were not the

slightest acquisition to the navy of England.’[90]

When this happened, as it could not but often do in pitched naval

battles, the Government sometimes made good to the captors the value of

the prizes that the serious nature of the conflict had caused them to

lose. Thus in the case of the six French prizes made at the Battle of

the Nile, only three of which ever reached Plymouth, the Government,

‘in order that the captors might not suffer for the prowess they had

displayed in riddling the hulls of the captured ships, paid for each of

the destroyed 74s, the “Guerrier,” “Heureux,” and “Mercure,” the sum of

20,000_l._, which was as much as the least valuable of the remaining

74s had been valued at.’

It is curious to notice distinctions in naval warfare between lawful

and unlawful methods similar to those conspicuous on land. Such

projectiles as bits of iron ore, pointed stones, nails, or glass, are

excluded from the list of things that may be used in _good war_; and

the Declaration of St. Petersburg condemns explosive bullets as much

on one element as on the other. Unfounded charges by one belligerent

against another are, however, always liable to bring the illicit

method into actual use on both sides under the pretext of reprisals;

as we see in the following order of the day, issued at Brest by the

French Vice-Admiral Marshal Conflans (Nov. 8, 1759): ‘It is absolutely

contrary to the law of nations to make bad war, and to shoot shells at

the enemy, who must always be fought according to the rules of honour,

with the arms generally employed by polite nations. Yet some captains

have complained that the English have used such weapons against them.

It is, therefore, only on these complaints, and with an extreme

reluctance, that it has been resolved to embark hollow shells on

vessels of the line, but it is expressly forbidden to use them unless

the enemy begin.’[91]

So the English in their turn charged the French with making bad

war. The wound received by Nelson at Aboukir, on the forehead, was

attributed to a piece of iron or a langridge shot.[92] And the wounds

that the crew of the ‘Brunswick’ received from the ‘Vengeur’ in the

famous battle between the French and English fleets in June 1794, are

said to have been peculiarly distressing, owing to the French employing

langridge shot of raw ore and old nails, and to their throwing

stinkpots into the portholes, which caused most painful burnings and

scaldings.[93] It is safest to discredit such accusations altogether,

for there is no limit to the barbarities that may come into play, in

consequence of too ready a credulity.

Red-hot shot, legitimate for the defence of land forts against ships,

used not to be considered good war in the contests of ships with one

another. In the three hours’ action between the ‘Lively’ and the

‘Tourterelle,’ a French privateer, the use by the latter of hot-shot,

‘not usually deemed honourable warfare,’ was considered to be wrong,

but a wrong on the part of those who equipped her for sea more than

on the part of the captain who fired them.[94] The English assailing

batteries that fired red-hot shot against Glückstadt in 1813 are said

to have resorted to ‘a mode of warfare very unusual with us since the

siege of Gibraltar.’[95]

The ‘Treatise on Tactics,’ by the Emperor Leo VI., carries back the

record of the means employed against an enemy in naval warfare to

the ninth century. The things he recommends as most effective are:

cranes, to let fall heavy weights on the enemy’s decks; caltrops,

with iron spikes, to wound his feet;[96] jars full of quicklime,

to suffocate him; jars containing combustibles, to burn him; jars

containing poisonous reptiles, to bite him; and Greek fire with its

noise like thunder, to frighten as well as burn him.[97] Many of these

methods were of immemorial usage; for Scipio knew the merits of jars

full of pitch, and Hannibal of jars full of vipers.[98] Nothing was

too bad for use in those days; nor can it be ascertained when or why

they ceased to be used. Greek fire was used with great effect in the

sea-battles between the Saracens and Christians; and it is a fair cause

for wonder that the invention of gunpowder should have so entirely

superseded it as to cause its very manufacture to have been forgotten.

Neither does history record the date of, nor the reason for, the disuse

of quicklime, which in the famous fight off Dover in 1217 between

the French and English contributed so greatly to the victory of the

latter.[99]

It is difficult to believe that sentiments of humanity should have

caused these methods to be discarded from maritime hostilities; but

that such motives led to a certain mitigation in the use of fire-ships

appears from a passage in Captain Brenton’s ‘Naval History,’ where he

says: ‘The use of fire-ships has long been laid aside, to the honour of

the nation which first dispensed with this barbarous aggravation of the

horrors of war.’ That is to say, as he explains it, though fire-ships

continued to accompany the fleets, they were only used in an anchorage

where there was a fair chance of the escape of the crew against which

they were sent; they ceased to be used, as at one time, to burn or

blow up disabled ships, which the conqueror dared not board and carry

into port, and which were covered with the wounded and dying. The last

instance in which they were so used by the English was in the fight

off Toulon, in 1744; and their use on that occasion is said to have

received merited reproach from an historian of the day.[100]

As the service of a fire-ship was one that required the greatest

bravery and coolness--since it was, of course, attacked in every

possible way, and it was often difficult to escape by the boat chained

behind it--it displays the extraordinary inconsistency of opinion about

such matters that it should have been accounted rather a service of

infamy than of honour. Molloy, in 1769, wrote of it as the practice of

his day to put to death prisoners made from a fire-ship: ‘Generally

the persons found in them are put to death if taken.’[101] And another

writer says: ‘Whether it be from a refined idea, or from the most

determined resentment towards those who act in fire-ships, may be

difficult to judge; but there is rarely any quarter given to such as

fall into the enemy’s power.’[102]

Clock-machines, or torpedoes, were introduced into European warfare by

the English, being intended to destroy Napoleon’s ships at Boulogne in

1804. It is remarkable that the use of them was at first reprobated by

Captain Brenton, and by Lord St. Vincent, who foresaw that other Powers

would in turn adopt the innovation.[103] The French, who picked up some

of them near Boulogne, called them infernal machines. But at present

they seem fairly established as part of good warfare, in default of any

international agreement against them, such as that which exists against

explosive bullets.

The same International Act which abolished privateering between the

signatory Powers settled also between them two other disputed points

which for centuries were a frequent cause of war and jealousy--namely,

the liability of the property of neutrals to be seized when found in

the ships of an enemy, and of the property of an enemy to be seized

when found in the ships of a neutral.

Over the abstract right of belligerents so to deal with the ships

or property of neutral Powers the publicists for long fought a

battle-royal, contending either that a neutral ship should be regarded

as neutral territory, or that an enemy’s property was lawful prize

anywhere. Whilst the French or Continental theory regarded the

nationality of the vessel rather than of its cargo, so that the goods

of a neutral might be fairly seized on an enemy’s vessel, but those

of an enemy were safe even in a neutral ship; the English theory was

diametrically the opposite, for the Admiralty restored a neutral’s

property taken on an enemy’s vessel, but confiscated an enemy’s goods

if found on a neutral vessel. This difference between the English

rule and that of other countries was a source of endless contention.

Frederick II. of Prussia, in 1753, first resisted the English claim to

seize hostile property sailing under a neutral flag. Then came against

the same claim the first Armed Neutrality of 1780, headed by Russia,

and again in 1801 the second armed coalition of the Northern Powers.

The difference of rule was, therefore, as such differences always must

be, a source of real weakness to England, on account of the enemies it

raised against her all over the world. Yet the Continental theory of

free ships making free goods was considered for generations to be so

adverse to the real interests of England, that Lord Nelson, in 1801,

characterised it in the House of Lords as ‘a proposition so monstrous

in itself, so contrary to the law of nations, and so injurious to the

maritime interests of England, as to justify war with the advocates

of such a doctrine, so long as a single man, a single shilling, or a

single drop of blood remained in the country.’[104] The Treaty of Paris

has made binding the Continental rule, and in spite of Lord Nelson free

ships now make free goods.

The fact, therefore, that if England were now at war with France she

could not take French property (unless it were contraband) from a

Russian or American ship, we owe not to the publicists who were divided

about it, nor to naval opinion which was decided against it, but to the

accidental alliance between France and England in the Crimean war. In

order to co-operate together, each waived its old claim, according to

which France would have been free to seize the property of a neutral

found on Russian vessels, and England to seize Russian property on the

vessels of a neutral. As the United States and other neutral Powers

as well would probably have resisted by arms the claim of either so

to interfere with their neutrality, the mutual concession was one of

common prudence; and as the same opposition would have been perennial,

it was no great sacrifice on the part of either to perpetuate and

extend by a treaty at the close of the war the agreement that at first

was only to last for its continuance.

Much, however, as that treaty has done for the peace of the world, by

assimilating in these respects the maritime law of nations, it has left

many customs unchanged to challenge still the attention of reformers.

It is therefore of some practical interest to consider of what nature

future changes should be, inasmuch as, if we cannot agree to cease from

fighting altogether, the next best thing we can do is to reduce the

pretexts for it to as few as possible.

The reservation, then, in favour of confiscating property that is

contraband of war has left the right of visiting and searching neutral

or hostile merchantmen for contraband untouched; though nothing has

been a more fruitful source of quarrel than the want of a common

definition of what constitutes contraband. Anything which, without

further manipulation, adds directly to an enemy’s power, as weapons

of war, are contraband by universal admission; but whether corn and

provisions are, as some text-writers assert and others deny; whether

coined money, horses, or saddles are, as was decided in 1863 between

the Northern Powers of Europe; whether tar and pitch for ships are, as

was disputed between England and Sweden for 200 years; whether coal

should be, as Prince Bismarck claimed against England in 1870; or

whether rice is a war-threatening point of difference between England

and France in this very year of grace; these are questions that remain

absolutely undecided, or are left to the treaties between the several

Powers or the arbitrary caprice of belligerents.

The Declaration of Paris was equally silent as to the right (demanded

by all the Powers save England) for ships of war, which have always

been exempt from search, to exempt from search also the merchant

vessels sailing under their convoy. So fundamental a divergence between

the maritime usages of different countries can only be sustained under

the peril of incurring hostility and war, without any corresponding

advantage in compensation.

The Declaration of Paris has also left untouched the old usage of

embargoes. A nation wronged by another may still seize the vessels of

that other which may be in its ports, in order to secure attention to

its claims; restoring them in the event of a peaceable settlement,

but confiscating them if war ensues. The resemblance of this practice

of hostile embargo to robbery, ‘occurring as it does in the midst of

peace ... ought,’ says an American jurist, ‘to make it disgraceful and

drive it into disuse.’[105] It would be as reasonable to seize the

persons and property of all the merchants resident in the country, as

used to be done by France and England. In 1795, Holland, having been

conquered by France, became thereby an enemy of England. Accordingly,

‘orders were issued to seize all Dutch vessels in British ports;’ in

virtue of which, several gun-ships and between fifty and sixty merchant

vessels in Plymouth Sound were detained by the port admiral.[106] It is

difficult to conceive anything less defensible as a practice between

civilised States.

It equally descends from the barbarous origin of maritime law that all

ships of an enemy wrecked on our coast, or forced to take refuge in our

harbours by stress of weather or want of provisions, or in ignorance

of the existence of hostilities, should become ours by right of war.

There are generous instances to the contrary. The Spanish Governor of

Havana in 1746, when an English vessel was driven into that hostile

port by stress of weather, refused to seize the vessel and take the

captain prisoner; and so did another Spanish governor in the case of

an English vessel whose captain was ignorant that Honduras was hostile

territory. But these cases are the exception; the rule being, that a

hostile Power avails itself of a captain’s ignorance or distress to

make him a prisoner and his ship a prize of war; another proof, if

further needed, how very little magnanimity really enters into the

conduct of hostilities.

It is a still further abuse of the rights of war that a belligerent

State may do what it pleases, not only with all the vessels of its

own subjects, but with all those of neutrals as well which happen to

be within its jurisdiction at the beginning of a war; that it may, on

paying the owners the value of their freight beforehand, confiscate

such vessels and compel them to serve in the transport of its troops

or its munitions of war. Yet this is the so-called _jus angariæ_, to

which Prince Bismarck appealed when in the war with France the Germans

sank some British vessels at the mouth of the Seine.[107] It is true we

received liberal compensation, but the right is none the less one which

all the Powers are interested in abolishing.

If, then, from the preceding retrospect it appears that whatever

advance we have made on the maritime usages of our ancestors has been

due solely to international agreement, and to a friendly concert

between the chief Powers of the world, acting with a view to their

permanent and collective interests, the inference is evidently in

favour of any further advance being only possible in the same way. The

renunciations of each Power redound to the benefit of each and all;

nor can the gain of the world involve any real loss for the several

nations that compose it. We shall therefore, perhaps, not err far from

the truth, if we imagine the following articles, in complement of those

formulated in Paris in 1856, to constitute the International Marine

Code which will be found in the future to be most calculated to remove

sources of contention between nations, and best adapted, therefore, to

the permanent interests of the contracting parties:

1. Privateering is and remains abolished.

2. The merchant vessels and cargoes of belligerents shall be exempted

from seizure and confiscation.

3. The colonies of either belligerent shall be excluded from the field

of legitimate hostilities, and the neutrality of their territory

shall extend to their ships and commerce.

4. The right of visiting and searching neutral or hostile merchantmen

for contraband of war shall be abolished.

5. Contraband of war shall be defined by international agreement; and

to deal in such contraband shall be made a breach of the civil

law, prohibited and punished by each State as a violation of its

proclamation of neutrality.

6. Except in the case of contraband as aforesaid, all trade shall

be lawful between the subjects of either belligerent, since

individuals are no more involved in the quarrel between their

respective governments at sea than they are on land.

7. The only limitation to commerce shall be so effective a blockade of

an enemy’s ports as shall render it impossible for ships to enter

or leave them; and the mere notification that a port is blockaded

shall not justify the seizure of ships that have sailed from, or

are sailing to, them in any part of the world.

8. The right to lay hostile embargoes on the ships of a friendly

Power, by reason of a dispute arising between them, shall be

abolished.

9. The right to confiscate or destroy the ships of a friendly Power

for the service of a belligerent State, the _jus angariæ_, shall be

abolished.

What, then, would remain for the naval forces of maritime Powers to do?

Everything, it may be replied, which constitutes legitimate warfare,

and conforms to the elementary conception of a state of hostility; the

blockading of hostile ports, and all the play of attack and defence

that may be imagined between belligerent navies. Whatsoever is more

than this--the plunder of an enemy’s commerce, embargoes on his ships,

the search of neutral vessels--not only cometh of piracy, as has been

shown, but is in fact piracy itself, without any necessary connection

with the conduct of legitimate hostilities.

Military Manners and Customs · 第 3 / 9 章