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.