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 2,000,000l.[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, 140,000l.
• That of the ‘Conception,’ a French ship, 200,000l.
• That of ‘La Charmante,’ a French East Indiaman, 200,000l.
• That of the ‘Vestal,’ a Spanish ship, 140,000l.
• That of the ‘Hector,’ a Spanish ship, 300,000l.
• That of the ‘Concordia,’ a Spanish ship, 600,000l.[75]

Two Spanish register ships are recorded to have brought in 350l. 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 700,000l., and every common seaman 850l. 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 20,000l., 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.