Handbook of Maritime Rights

Front matter

HANDBOOK

OF

MARITIME RIGHTS,

Chapter 1

THE DECLARATION OF PARIS

AND

MARITIME RIGHTS.

CHAPTER I.

Blockades.

To begin with, What is "War ?

War is a sentence of death and confiscation pronounced against your enemy for refusing to do you Justice. War for any other motive, or on any other pretext, is the greatest of national crimes; and wars of ambition or aggrandisement are brigandage and rapine on a stupendous scale. War is either the greatest of crimes or the most sacred of duties; and, when it is the latter, the man who talks of peace is either a traitor or a coward. The sentence of confiscation is the lesser right included in the greater, viz. that of putting your enemy to death, and to distrain his goods is the milder and more humane compulsion applied to him prior to the exercise of the right of killing him.

War on land is more terrible than war on sea. It includes occupation and annexation of your enemy's territory, the denationalization of his provinces (the greatest calamity which an independent people can undergo), and the striking at his capital, the heart of his empire and the centre of his government, which, when successful, puts an end to the war and brings him to terms.

War at sea, in the nature of things, can lead neither to occupation nor annexation, and consists solely in naval actions and bombardment of fortresses, and in compul applied to your enemy's commerce. This compulsion consists in two descriptions of measures.

(1) Blockading enemy's coasts and harbours.

(2) Seizing his goods at sea.

The first practice (blockading) has undergone a limitation by the practice of modern times and the Declaration of Paris.

Formerly an Order in Council declared certain ports or coasts blockaded, and all vessels found on the high seas bound for those ports or coasts were held to have broken the blockade, and were seized accordingly. According to the new rule (the IVth rule of the Declaration of Paris), a blockade to be valid must now be effective; that is, it must be effected by means of a blockading squadron off the particular blockaded coast or harbour, and must be so effective as to constitute a real danger to the vessels attempting to enter the ports in question. This new rule puts an end to paper blockades, and what I should call ocean blockades, that is, blockades ordered in Council and effected by- cruisers in the open sea. It consequently considerably limits the power of blockading at all times, and puts an end to it in the winter altogether in those seas (such as the Baltic and Black Seas), where no blockading squadron could maintain itself at that season.

This conventional limitation imposed by the Declaration of Paris is further increased by the improvements in the means of internal communication between nations, especially by the great extension of railways; for even where the whole coast of a particular country is effectually blockaded, the blockaded belligerent can transport his goods by land to the nearest neutral harbour (as the Russians did to Memel and Königsburg during the Crimean war), and there ship them on board neutral vessels, where they will be perfectly safe from capture under the Declaration of Paris, at the simple inconvenience of paying the enhanced cost of transport, representing the difference of the distance of the place of produce from the neutral harbour as compared with its usual place of export. Prior to the Declaration of Paris this would have availed him nothing, because his cargoes were seizable by the hostile cruisers the moment they left the neutral harbour, in whatever vessel they might be. In Lord Stowell's words (the concisest form of the expression of maritime belligerent rights), "enemies" cargoes were seizable at sea, whatever the ships, whatever the cargoes, and whatever the destination." This ancient rule was repealed by the Declaration of Paris, which introduced instead of it the new rule that enemies goods were safe in neutral bottoms, which is the maxim which I intend to examine at length in subsequent chapters. But before taking leave of the subject of blockades I must notice some further pretensions on the subject put forward by neutral nations and by those whose manifest interest it is to cripple England's power at sea, and which, although not yet adopted, can be equally supported by exactly the same class of argument by which the Declaration of Paris is defended.

In the Berlin decrees of the First Napoleon, and in a circular of Count Beust, the pretension was raised that the right of blockading should be confined to fortified places thus putting an end to commercial blockades altogether, and involving that larger pretension which I shall examine later on, viz., the immunity of all private property at sea.

But in order to clear the ground for the examination of the chief point on which we have to fix our attention (viz., the maxim of the flag covering the cargo) it may be as well to dispose of the 1st rule of the Declaration of Paris, which abolished privateers, and to say a few words on this subject, which has really very little indeed, or rather nothing, to say to the main question, and has been, I firmly believe, purposely introduced into the discussion in order to confuse people's minds and prevent their arriving at a clear understanding and resolute determination on the main question.

Chapter 2

CHAPTER II.

Privateers.

I HAVE already said that the question of privateering has nothing to do with the real question at issue. The distinction between them is made clear by this fact. The question of privateering regards the belligerents only; if both belligerents agree to abstain from the practice, well and good; if either refuses, the other is ipso facto absolved from the obligation of abstaining. This is what happened the other day in the war between Spain and Chili. Chili had adhered to the Declaration of Paris, the first article of which abolished privateering—Spain had not. When war broke out between them, Chili re-asserted a right which her adversary had never relenquished, and this re-assertion was acquiesced in by Spain and approved of by every other Government. In fact the other Governments had nothing to say to the matter; it in no way regarded them. But very different is the case when it is a question of the neutral flag covering the cargo. Then the rights of neutrals step in, and other Governments besides those of the belligerents have a voice in the matter. They will keep, and have a right to keep, the belligerent who has signed the Declaration of Paris to his engagement, by which it is their turn to profit, and by which he himself profited all the time he was a neutral, by driving a flourishing carrying trade with one or both of the belligerents. It is this distinction which clearly detaches the question of privateering from that far more serious question of the neutral flag covering the enemies cargoes.I am not myself an enthusiast for privateering. I take no par interest in the matter. I am not in favour of binding ourselves beforehand not to use this or that mode of naval warfare. It is for the interest, I believe, of a maritime nation like ourselves to use all modes of naval warfare, to put forth its naval strength in all directions, and all juggles by which modes of warfare are limited and crippled must turn out for the exclusive benefit of the weaker maritime belligerent. Privateering was in the last great war supposed to lead to abuses, and the sense of responsibility was believed to be not so strongly felt by the commander of a privateer as by that of a regular commissioned man of war. These abuses have, I believe, been exaggerated, and precautions of a stringent nature were certainly taken to enforce and strengthen this sense of responsibility. Owners of privateers were under heavy obligations to confine themselves within the limits of their commission. This commission was not "to kill, burn, and destroy," as ran the com of the officers of the Royal Navy, but exclusively to capture and bring into port captured vessels and cargo, there to be duly adjudicated on by the properly constituted tribunals (Admiralty Courts) of the country, and under no pretext whatever were they allowed to break bulk. Any violation of these obligations was severely and summarily punished, and commanders of privateers were required to find large pecuniary security for their conduct.

That these regulations were not always sufficient to restrain lawless men and to prevent abuses may be true, but has never been very clearly established. It clearly will not do to go for examples of excesses to the days of Captain Kidd and his compeers, for those were lawless days, and the exploits of these heroes can be matched by those of regular commissioned officers in those days. Buccaneering was then in vogue, and the code of honour of buccaneers was such as might be expected.

A very prevalent confusion of ideas on the subject of privateers has considerably enhanced the prejudice against them. It is often stated that letters of marque may be issued to individuals of any nationality to prey on the commerce of the enemy, or, at any rate that an individual of the nationality of the belligerent may fit out a privateer in any neutral port, select his crew from sailors of any nationality, and set out with his letters of marque to prey on the commerce of the enemy. Nothing can be clearer than the law of nations on this subject. A vessel so fitted out is not a privateer at all, but a pirate, and its captain and crew, if captured, are clearly liable to the pains and penalties of piracy. The Alabama was a buccaneer pure and simple, and it was essentially the interest of England to recognize her, indeed to insist on her being recognized and viewed as such. Consider for a moment the consequences of the opposite doctrine. Accor to it, Switzerland, Bavaria, or any other microscopic inland state, having a quarrel with England or the United States, might declare war, and, whilst their geographical situation placed them beyond the reach of offensive operations from them, might send letters of marque to the cut-throats of every port in the four continents of the globe to prey on and destroy the commerce of their enemy. This is a conclusive reductio ad absurdum, I take it, of an assertion which is continually being made on the subject of privateering. It is highly important to prevent the slightest confusion on this matter. Privateering may be a good or a bad thing, but it is clearly quite distinct from buccaneering. Pirates, however, having been dignified with the name of privateers, it is not surprising that privateers should be stigmatized with the name of pirates, and the whole subject enveloped in a maze of prejudice and mis-conception.

If privateers were abolished, substitutes for privateering would immediately take its place. During the last war, Prussia was engaged in chartering large merchant steamers, arming them, and putting them under the command of naval officers, with a view of sending them out to prey on French commerce. The overwhelming superiority which she soon managed to establish over her enemy on land rendered any mode of naval warfare superfluous, and put an end to the device.

Prussia fought the battle of her cruisers on land, for she imposed a contribution of 1,000,000 francs per occupied department, overtly as compensation for the mischief inflicted on her commerce by French cruisers. England could very easily charter any number of merchant steamers, convert them into cruisers, put them under the command of naval officers, and so find an effective substitute for privateers.

The question of privateers is therefore quite a secondary question. It is unwise, I think, to make arrangements beforehand on this subject with foreign nations. Keep all your arms stored in your national arsenal. Don't part with any of them. If it is unnecessary or inexpedient in any particular war according to the circumstances of that war, to employ a particular weapon, let it remain stored up until the necessity or expediency for using it arises. The day might come when some disaster to our regular military marine might endanger our very existence, and then it might become expedient and highly necessary to call into activity every privateer which the wealth of our private enterprise and the daring of our seafaring population could place at the disposal of the Crown. To limit or control or trammel that reserve power by convention or treaty with foreign nations seems to me unwise and impolitic; and when I remember that the Spanish Armada was defeated and England saved by a fleet composed exclusively of privateers, I am at any rate unwilling to join in the unreasoning clamour raised against this particular mode of naval operations.

Chapter 3

CHAPTER III.

The Right of Search.

The right to seize enemies cargoes is often, though improperly, called "the right of search." This latter right is of course included in the larger right of seizure, but it is by no means co-extensive with it. Even if the right of seizure were abolished the right of search would remain, with a view to ascertain the ship's nationality, and also that she had no contraband of war on board. It has never been proposed to abolish the right of search, and as long as contraband of war is prohibited the right of search must remain.

A certain limitation of the right of search was proposed by the Powers who formed the second armed Neutrality of 1800, viz., that merchant vessels under convoy should not be searched; that the man-of-war under whose protection the convoy was sailing should be, as it were, a guarantee that no contraband was on board; and that a merchantman belonging to any one of the coalesced neutrals might put itself under the protection of a man-of-war belonging to any of the coalesced neutrals that it might chance to meet in the open sea, and that such convoy should be sufficient to protect it against search. England, however, refused to acknowledge this pretension, issued letters of marque against the coalesced neutrals, and within twelve months dissolved this armed neutrality. It is fair to state that, when peace was made, England made one concession to the armed Neutrality, viz., that merchant-men under convoy should only be searched by men-of-war and not by privateers.

It is sometimes, very incorrectly, stated that the war of 1812 with the United States was brought about by the exercise on the part of this country of the right of search. No statement can be more absurd, and it is an instance, among so many, of the extremely loose way in which technical expressions are used, and patent historical facts perverted. The overt cause of war with the United States was the right claimed by this country of impressing English sailors found on board American vessels. That English sailors often took refuge under the American Flag to avoid impressment was notorious, but that the right claimed by this country was often very injudiciously exercised, and that bona fide citizens of New York, and Boston were often impressed under the mistaken idea or pretext that they were Britishers, appears now to be acknowledged.

The American Government did not deny that the English had a grievance, and they offered to redress it by a change in their municipal law if we would abandon our high-handed proceedings; but for many years before this, between 1809 and 1812, many irritating discussions had taken place between the two Governments relative to the abuses of so-called maritime rights on our side and fraudulent evasions of neutral obligations on the part of the Americans, and in all these discussions, which are to be found at length in the official correspondence with the American Government during those years, not one word appears concerning the right of search. The real irritating topic was our paper blockades, by which we practically prohibited all neutral trade; and what greatly aggravated the feeling of irritation on the part of the Americans, as distinctly stated by the American President, was an exception to this general prohibition which we made in favour of our own trade so that whilst forbidding neutrals to trade with our enemy we actually traded with him ourselves and enriched ourselves at the neutrals' expense. The Americans retaliated on our Orders in Council by passing "Acts of non-intercourse" with us; and with France too, on account of her Berlin and Milan decrees (1806 and 1807) which forbade all trade with England and England's produce, and which were in fact the pretext and the alleged justification for our Orders in Council, which claimed rights beyond what the law of nations accorded us and were justifiable only as retaliatory acts. It is clear therefore that the right of search had absolutely nothing whatever to do with the war of 1812. It was the impressment of sailors which was the cause, working on ground already prepared by previous controversies on the subject of blockade. The right of search was a pretension and a right which the Americans acknowledged a few years before on so memorable an occasion that I cannot do better than refer to it.

On the 6th February 1778, the United States made a treaty with France, one clause of which contained the provision that, as between these two countries, the Flag (neutral) should cover the merchandise {i.e. the enemies'). In 1794 they made a treaty of commerce and navigation with Great Britain, one clause of which contained expressly the opposite provision, viz. that, as between these two nations, the flag should not cover the merchandise. When the war broke out between England and France the English proceeded (not only by virtue of their express stipulation with the United States, but in accordance with the law of nations on the subject), to seize French goods on board American vessels; the French on the other hand, in consequence of their treaty with the United States, could not seize English goods on board American ships. The French loudly complained of this inequality, and quoted the "most favoured nation" clause in their treaty with the United States as a ground for claiming reciprocity of right in this matter. The American President however, refused to recognize either the claim or the ground on which it was urged, stating distinctly that the English right was founded not on England's treaty with the United States but on the general law of nations, and was therefore prior to and independent of the provisions of the French treaty with the United States. These are the words of Jefferson—no partisan of this country "Before the treaty with Great Britain the treaty with France existed. It follows then that the rights of England being neither diminished nor increased by compact, remained precisely in their natural state, which is to seize enemies' goods whenever found. And this is the received and allowed practice of all nations where no treaty has intervened." Thus has the quarrel with the United States in 1812 (relative to a matter of municipal jurisdiction, the right of impressment, and not of international law at all), been, by an ignorant or perverse confusion of terms, called a quarrel about the right of search, and as this term is often loosely used to express the right of capturing enemies' goods under the neutral flag, the current fallacy has arisen of supposing that the war of 1812 had something to do with the exercise of this latter right.

Chapter 4

CHAPTER IV.

The Right of Capture.

The right of capturing enemies' goods on the high seas (which, as we have seen, is often improperly called the right of search) may be classed under three heads.

(1.) Where ship and cargo both belong to the enemy.

(2.) Where the ship belongs to the enemy and the cargo to a neutral.

(3.) Where the ship belongs to a neutral and the cargo to the enemy.

The first case has never yet given rise to any dispute, both ship and cargo being of course liable to confiscation although a theory, which we shall have to examine later on, has been lately started to exempt all private property at sea from capture.

The second case has never justified the seizure of the cargo as a recognized maxim of international law, although an abuse of belligerent rights has often, as we shall see, claimed this right, and in all those numerous treaties in the 17th and 18th centuries in which the principle of "free ships free goods" was stipulated, the opposite or converse principle "enemies' ships enemies' goods " was likewise agreed upon between the contracting parties, as a set-off against the concession.

The third case (where the ship belongs to a neutral and the cargo to the enemy) involves the principal matter on which we have to fix our attention. Previous to 1854 the English practice (leaving out of account for the present the modifications introduced into our practice by treaty engagements which will form the subject of a separate chapter) was founded on the simple theory that enemies' property was seizable wherever it was found: in Lord Stowell's words: "whatever the ships, whatever the cargoes, and whatever the destination," and that neutral property was under all circumstances to be restored, and the neutral subjected to as little loss and inconvenience as was consistent with the exercise of our rights over the enemy's property. For this purpose Admiralty Courts were established at our seaports, together with higher Courts of Appeal, for the decision of all cases in which neutral property was involved, and so delicate were we in dealing with neutral rights that the captain of the neutral vessel was entitled to the full amount of the freight which he would have earned by carrying the enemy's cargo to its port of destination had not the cargo been seized, and to demurrage too for illegal or unnecessary detention, amounting sometimes to the full amount of his freight.

No penalty was imposed on the neutral for carrying enemies' goods, except the discouragement inseparable from having those goods liable to confiscation, and the consequent contingent loss of future freight. This equitable rule was laid down as early as the 12th century in a remarkable compilation called the "Consolato del Mare," a code of maritime laws compiled, it is supposed, by order of St. Louis of France, from the customs of the sea actually in usage among all the maritime states of the world, including the Hanse towns, all the Mediterranean States, Genoa, Venice, Barcelona, Cyprus, Jerusalem, &c. This code therefore was not a new law dating from this period, but the mere codification of laws of immemorial antiquity in usage among the maritime states of the world. It was this, and not the authority of St. Louis, which gave it its high sanction, together with the fact that its equitable provisions met with the approval of all the great jurists who wrote on the subject of maritime law. Its provisions hence became essentially entitled to the name of laws of nations.

It seems to me a convenient place to pause here a moment to inquire what is a law of nations, especially as it is a question very germane to our inquiry, and has been surrounded with a good deal of unnecessary confusion.

Laws of nations are of two kinds, according to the source from which they are derived: (1) Jura naturæ. (2) Those founded on Universus consensus gentium.

The first we may translate the law of common sense, the natural law founded on reason.

The second, the general agreement between the nations of the world.

It is sometimes considered that the second source is sufficient to constitute a law of nations; but it is evident that such a law might conflict with a still higher law, such as that of self-preservation, the first law of nature and of nations, and then it must yield to this higher law. A law merely founded on convention, however general the agreement, is a law of nations in an inferior sense only. A fortiori when the agreement is only partial, the term "law of nations" is not applicable at all.

But when a law is both agreed upon by common consent, and is in accordance with the highest natural law, and is so regarded by the great authorities on International Law, then it becomes entitled to the full dignity of a law of nations in the largest acceptation of the term.

The maritime code of the Consolato del Mare constituted the maritime law of nations in this highest sense. Not only for centuries were the rules there laid down accepted, without dispute, by all maritime nations, large and small, but all the great international jurists, Grotius, Vattel, Bynkershöek, Zouch, Heineccius, Azuni, Lampredi, Puffendorf, and Kent, approved of these rules on the highest grounds of equity. I shall consider this point more at length hereafter.

When modifications began to be introduced into the practice consecrated by the rules of the Consolato del Mare, they were on the side of greater stringency and severity. England was the nation that departed least from the rules here laid down. Her general practice was for centuries in strict conformity with them, and, unless as exceptions introduced by Orders in Council, for a particular war, and as a particular exception, the rules of the Consolato were always recognized as the law of nations on the subject of maritime capture, and, as such, incorporated into the municipal law of England. France by means of her marine ordinances (having much the same force as our Orders in Council) overstepped, the provisions of the law of nations (and therefore the rules of the Consolato) far more systematically than we did; and, so far from its being true that the French practice was milder and more humane than our own, the exact contrary was the case, as I shall proceed to show.

By a decree of Francis I. (1563), confirmed by another in 1584, all neutral trade with the enemy was forbidden, the neutral vessel carrying enemies' cargoes was itself confiscated, and also the neutral cargo in an enemy's vessel.

The maritime ordinance of 1681 reaffirmed all these three extensions of what I may call normal belligerent rights as laid down in the Consolato del Mare.

By the marine ordinance of 1704 still further extensions were introduced in retaliation, be it said, of the Anglo-Dutch measures adopted by William of Orange against the power of Louis XIV. All articles of the produce and manufacture of the enemy's country on board a neutral were made seizable (although not entailing the confiscation of the neutral vessel itself as was the case with enemy's property).

The marine ordinance of 1744 modified the severity of these above mentioned rules, so that only enemies' property and produce were confiscated but not the neutral vessel.

And in 1773 a full return was made to the provisions of the Consolato del Mare.

Here I will close the account of the French practice, because from this date began the policy dictated by the events (1) of the American War of Independence, and (2) of the French revolution,—in which exceptional feelings of animosity and bitterness introduced exceptional regulations, and threw considerations of equity and of law into the background.

But before taking leave of the review of French practice between 1543 and 1744, there is a very interesting incident to be recorded, worthy of attention inasmuch as it exemplifies the fact that the idea of a law of nations, independent of and superior to municipal regulations in conflict with that law, had not up to that date deserted the public conscience in France. The incident is this.—

The ordinances of 1543 and 1584 enacted, as we have seen, the confiscation of the neutral vessel as well as the enemy's cargo. But the Parliament of Paris in 1592 adjudged the contrary (on the express grounds of international law) in the case of a Hamburg ship.

To sum up, we may divide the history of the law on the subject of marine captures into three epochs.

I. From the earliest times consecrated, not introduced, by the Consolato del Mare, up to the middle of the 16th century, when the equitable rules of the Consolato were never departed from.

II. From the middle of the 16th century to the American revolution, when the rules were frequently departed from for state reasons of policy, and as retaliatory measures, but with the tendency to return to the norma laid down in the Consolato del Mare.

III. From the period of the American revolution down to the Peace of Vienna, 1815, which I will consider in a future chapter.

Chapter 5

CHAPTER V.International Law and the "reason of the thing."

I HAVE claimed the rank of International law in the highest sense for the provisions of the Consolato del Mare, as being founded on all the three necessary sanctions of such law, viz., (a) the reason and common sense of the thing; (b) the approval of the most eminent jurists; (c) the general consent of nations, when they were not under the influence of motives of state policy.

I wish to examine a little closely the first of these sanctions—the reason of the thing.

Nations at war with each other have been compared to individuals carrying on war with each other in the primitive condition of society. If I am at war with a man, I have no right to insist on any one taking my side in the dispute, but I have a right to insist on no one, who claims the privileges of neutrality, taking my adversary's side, which if he does, he violates impartiality and departs from neutrality. Now, if I am able to prevent my enemy from carrying his goods by sea, what right has a third party, calling himself a neutral, to step in and do for him what he is unable to do for himself? Not only this, but by his conduct he does me a double injustice, for he not only does for my enemy what my enemy is unable to do for himself, but thereby he enables him to increase, proportionately to the aid he receives, his means of offensive operations against me; for every sailor whom he lends my enemy to carry on his trade is a man subtracted from his commercial marine and added to his military marine, which he is at liberty to use for the purpose of invading or otherwise injuring me.