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seizing enemy's property laden on board a neutral vessel, unless it be contraband of
It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships; and Her Majesty further declares that, being anxious to lessen as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissioning of privateers.
The brevity with which these striking modifications of belligerent rights are expressed offers a complete contrast to the elaborate verbosity of all former documents of this nature, framed with very different objects, and on a very opposite principle under the former system of war policy.
But the waiver of belligerent rights' was not confined merely to the powers with whom 'her Majesty remained at peace.' Russian merchant vessels in British ports, instead of being embargoed and confiscated as of old, were allowed six weeks to load and depart in peace; and similar exemptions were made in favour of those met with at sea with cargoes laden before the date of the declaration of war; whilst those sailing from foreign ports for British ports before such date were allowed to discharge, and 'depart without molestation.'*
In the same spirit, 'trade with the enemy' (formerly wholly interdicted, and punished by confiscation) was now permitted not only to neutrals but to British subjects; and in direct contravention of one of the principal maxims of all former times, a peace for commerce' was proclaimed during and notwithstanding the coincidence of a 'war for arms.'
Neutrals and even British subjects were formally permitted to trade freely with all ports and places, wheresoever situate, which should not be in a state of blockade;' and
* Order in Council (D), March 29, 1854. † Order in Council (G), April 15, 1854.
with all goods and merchandize whatsoever, to whomsoever the same might belong.'t
Under this Order a brisk trade was carried on between England and Russia through Prussian and Swedish ports, notwithstanding the blockade. The carrying of 'contraband of war' and the 'breaking blockade' thus remained the only offences of neutrals against belligerent rights which were to be visited with 'condemnation.' Blockade was (as it were) the only weapon of all the old engines of war,' the free use of which against all comers' was retained by the belligerents.
This policy was met by Russia in the liberal spirit which it deserved; British vessels were allowed to load and depart from her ports in peace, and British and Russian residents were in both countries left perfectly unmolested.
The course of events fully justified the new maritime policy thus adopted; the Black Sea fleet of Russia, after extinguishing that of Turkey at Sinope, met a fate which recalled the burning of Moscow. With a gloomy foresight of its inevitable fate if it remained afloat, the Russian officers sank it in the mouth of Sebastopol harbour, where it offered an unforeseen and insurmountable obstacle to the contemplated naval operations of the Allies, and materially assisted in the protracted defence of the place.
This event summarily disposed of all question of the validity of the blockade of Southern Russia. In the Baltic the Russian navy never ventured to sea; it remained, contrary to expectation, hermetically sealed' in port, and only escaped destruction from want of foresight on the part of the English Admiralty, which had not contemplated until too late the necessity of providing the proper means for destroying it in the harbour of Cronstadt.‡
In a naval point of view, it is remarkable that the fleets of France and England, even when united, did not venture to attack seriously either Cronstadt or Sebastopol. The armaments that thunderstrike the walls of rock-built cities' were paralyzed by the want of iron-clads' to resist the effect of shells fired horizontally from batteries.
The rigorous adherence to the old system in such matters, and the absolute indifference so long manifested by belligerents to the rights of neutrals and to the general interests of commerce had failed (as we have suggested) to produce any important effect in securing the attainment of their objects, or in either aiding or impeding the course of direct military and naval operations; the reversal of this system, and the attempt to lighten the indirect effect of war upon commerce in general, to exempt the subjects of both parties and neutrals from all useless injury, to show that 'war for arms' was not inconsistent with 'peace for commerce,' was signally successful in its practical operation. The war was short and successful on the part of the Allies; and the concessions then first made to commercial and neutral interests did not affect its course or result; notwithstanding its singularly short duration, the resources of each of the nations engaged in it were taxed to the utmost by its emergencies; it terminated as it were by common consent, with the apparent attainment of its only object; and whatever may be the conflict of opinion on the moral or political justification of the part taken by England or by France therein, or of its practical results upon either of their interests or those of Europe, it can scarcely be denied that the striking modifications then first introduced into their previous policy when belligerents inter se, were eminently successful, if only viewed as an experiment.
In contrast to all former wars, this war was conducted in the spirit of the ancient trial by battle;' and the successful precautions adopted by all the belligerents to limit its inevitable evils to the combatants, and to protect all bystanders' and all who did not interfere in the quarrel from injury, were the more creditable and effective, because they were both spontaneous and reciprocal; and they afforded a precedent which deserved and obtained the cordial and complete assent of nations.
The Congress of Paris in 1856 having settled the terms of peace,
proceeded, unlike that of Vienna in 1815, to consider several questions of international maritime law in relation to future wars. The secret history of this Congress has yet to be written. It was clear that the various specific modifications of the common law and usage of nations, first made by the belligerents in 1854, being limited and confined in terms to that particular war, would cease to operate after its termination. Even as a precedent, those powers who, as neutrals, had not been parties to them, could not have relied on their being renewed in future wars. Thus, had the Congress of Paris, like that of Vienna, separated without dealing in any manner with the subject in question, the ancient common law and usage of nations' would ipso facto have revived; the exception of 1854 would only have proved the rule; and even the existence of this exception would have opened and suggested further questions, doubts, and difficulties.
The opportunity was auspicious; calm had followed the storm; and the current was setting favourably towards the course recently shaped and followed; the high contracting parties' probably felt that they had on the whole escaped many rocks and shoals by their adoption of the modifications, and the result was the memorable 'Declaration of Paris.'
Why, instead of taking this peculiar shape, it was not incorporated into a separate, specific, and formal treaty or convention, we have yet to learn; it was final and reciprocal as between the nations represented at the Congress (the original parties); and all others were invited to adhere to its terms; an invitation which, as might have been anticipated, was almost universally accepted, with the remarkable exception of the (then) United States' of America, upon which we shall proceed to offer some remarks.
Diplomatic secrecy, so often talked of but so seldom observed, was on this occasion signally successful; the British Parliament was not consulted; no objections were audibly made; and the official publication of the document itself, without note
3rd. Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag.
4th. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.
To enter upon a full discussion of the various questions attempted to be settled in so summary a form in this remarkable document would exceed our limits; but we must point out that the 1st article, suppressing privateering, appears to us to have been an unquestionable step in advance, highly favourable to the general interests of commerce and civilization, relieving neutrals from the oppressive wrongs to which they were exposed at the hands of reckless persons whose theoretical responsibility for their acts was in effect no protection to the sufferers; and as far as the separate interests of England were concerned, calculated to insure her vast commercial marine against the recurrence of one of its most pressing dangers in time of war.
The policy of England in making the great concession expressed in the 2nd article (the neutral flag covering the enemy's cargo with the exception of contraband of war) in this final and irrevocable shape, remains to be explained, and vindicated, and above all tested in practice. To all but the maritime powers of high rank, such as France and Russia, it was in effect a gratuitous concession; and the fact of the United States of America not joining in the 'Declaration' has prevented the principle from being universal in its operation. Although in the Russian war, from very peculiar and exceptional circumstances, and particularly from the whole of the Russian ports having been effi
ciently blockaded throughout the war, the experiment (then first tried) succeeded; yet the question whether an inflexible and unqualified adherence to this principle by belligerents will be found practicable in all contingencies remains to be determined by future experience.
The operation of this article of the Declaration will, we apprehend, be (apart from all question of blockade) to confine captures at sea to cases where enemy's goods are in enemy's ships; the enemy may trade without interruption, provided only that he places his merchandize under the protection of a neutral flag; and it is easy to foresee that this precaution will offer the strongest temptation to the subjects of belligerents to freight neutral, to the exclusion of national vessels, and not to incur the somewhat perverse risk (in a commercial sense) of shipping goods under their own flag, and thereby exposing them to capture, for want of what legal tribunals would call 'ordinary caution.'
We doubt whether it can be safely assumed that belligerents will hereafter-when unable, say from geographical circumstances, to maintain an effective blockade of all hostile ports-patiently acquiesce in the continuance of the enemy's trade without any other limitation than its being conducted in neutral vessels.
A complete and uninterrupted blockade, such for instance as prevailed during the war with Russia, reduces all questions to the single issue-was the prize, whatever her nationality or cargo, attempting to break it?" and thus escapes further complications; but in the absence or imperfect action of blockade, contingencies must, we fear, be anticipated in which the duty of leaving the enemy's trade unmolested when under any neutral flag, will severely try the good faith and forbearance of powerful and high-spirited nations,
When the battle rages loud and long,
The 3rd article (viz., 'neutral goods, with the exception of con
traband of war, are not liable to capture under an enemy's flag,') has not yet received any authoritative legal definition. The law and usage of nations (irrespective of the 'Declaration') sanctioned the 'capture for adjudication' of all vessels under the enemy's flag; but if on investigation by a competent court, it was adjudged that the cargo was bonâ fide and exclusively neutral property, that was restored, whilst the enemy's ship was condemned.
If the article means no more than this, it has only formally enunciated what was previously the law; but if such was its intention, the technical word 'condemnation,' or some sufficient equivalent, should have been substituted for capture.' As it stands, the strict construction of this latter word may lead to the startling result in practice that an enemy's ship cannot be captured if she has any neutral goods on board. Nothing is said as to the whole cargo or any definite proportion of it; but it cannot have been meant to stipulate that a single bale of neutral property should exempt the enemy's ship from condemnation, more especially when in case of her having enemy's property on board, no question could arise as to the legality of her capture. If a neutral chooses to ship his property in the vessel of a belligerent, he cannot reasonably complain of the delay and expense of proving before the court of the captors, according to the common law and usage of nations, the validity of his claim before recovering such property.
utter practical impossibility of the captor's determining at sea the often intricate question of ownership,' even independently of false papers and other devices, is apparent.
The 4th article, relating to blockade, introduced no new legal principle, and was only aimed at the formal renunciation of such 'paper blockades' as those attempted by Napoleon in 1806-7, and by England in the Order in Council of Nov. II in the latter year.
The old practice of seizing by 'embargo' merchant ships, with their cargoes and crews, in port, when hostilities were imminent, but
before war was actually declared, with a view to their confiscation as enemy's property' as soon as that form had been gone through, was not (as we think it ought to have been) formally renounced and prohibited for the future in the Declaration.' It may however, we hope, be taken for granted that no such useless severity will be resorted to hereafter; more especially as in many modern treaties specific provisions have been introduced for securing to the subjects of each of the contracting parties the right of unmolested departure in the event of war.
The Declaration' was formally communicated to the government of the United States by the French minister at Washington, with an invitation to the Great Republic to join the great monarchies in adhering to it. France was selected to conduct this negotiation with a view to the friendly influence which from the associations connected with the independence of the States, she has always enjoyed at Washington. The Republic had, from her extensive commercial interests, her constant and habitual neutrality during the European maritime wars, and her repeated protests against the many wrongs to which she had been exposed by the severe applications and the abuses of belligerent rights, above all by her determined resistance in 1812 to England on the right of search, given the 'family of nations' good reason to suppose that she would cordially accept the terms thus unexpectedly and unanimously proposed to her, free as they were from all suspicious reservation, entanglement, or arrière-pensée; and it might not unreasonably have been anticipated that she would have gladly hailed the 'spontaneous conversion' of Europe to the principles which she had professed, and for which she had striven from her birth.
The event by no means answered any such expectations. Mr. Marcy, the United States' Secretary of State, answered the French minister's communication in a diplomatic note of considerable length, to the effect that his government was willing
to adopt the 2nd and 3rd articles; that the 4th only laid down doctrine which had always been recognized;' that as regarded the 1st article, the right to resort to privateers was as clear as the right to use public armed ships, and was as incontestable as any belligerent right; but he proposed to add to the 1st article the words 'that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent,' with the exception of contraband; and he stated that if thus amended, the government of the United States would in effect adhere to the Declaration.'
The practical result of this answer Iwas that the Declaration remained unaltered, and did not receive the adherence of the United States. The amendment suggested by Mr. Marcy would, in order to its due consideration, have necessitated not only mature reconsideration of the whole subject, but a reconstruction of the Declaration itself. The security of the important points already attained by its publication might obviously have been endangered by such a proceeding; great obstacles had been, however, overcome; great success had been achieved, and great practical advantages secured. Apart from all questions of form, and of international rank and dignity, (which would doubtless have interfered with the reconsideration and reconstruction of a European international contract at the suggestion of America) the proposal to this effect came too late; it remained for some time without any formal reply, and was subsequently, we believe, diplomatically withdrawn' by the United States, without, as it would seem, having ever received the serious consideration of the European powers.
Thus the great republic remained, and still remains, as it were 'isolated' from the other members of the family of nations; retaining apparently a characteristic jealousy of 'entanglement' with other powers, and cherishing a peculiar and natural sentiment for the profitable exploits of her privateers in the
only two naval wars in which she was ever engaged.
The youngest of great nations alone declined to advance in company with her elder sisters; she made indeed a great suggestion, the practical success of which she could scarcely have been justified in anticipating, as matters stood; and she seems to have preferred the retention of the right of privateering to the securing the concession of the flag covering the cargo,' a principle which she had so constantly insisted on in times past.
The suggestion thus made by the United States, viz., the exemption from capture at sea of all private property of the subjects of belligerents is, however, one well deserving of serious consideration; more especially in connexion with the stipulations of the Declaration of Paris.
The broad distinction in practice between the immunity from hostile confiscation of all private property of the enemy on shore, and the rigorous subjection of the same property to this penalty afloat, seems to be at variance with any theoretical consistency. If the question is to be viewed as one of international principle, and like other belligerent rights inter hostes, to be capable of some abstract moral justification, the distinction seems to fail. it be lawful or justifiable to inflict the utmost injury on the enemy's commerce without regard to individual interests, then all hostile and commercial property, whether on shore or afloat, should be equally confiscated; but if moral justice and common humanity demand that no injury should be inflicted on private property which is not absolutely essential to the success of military operations, how can the propriety of confiscating such property afloat be maintained consistently with that of protecting other portions of the very same property ashore?
Why, it may well be asked, should the one portion of the very same cargo (in the warehouse) be protected from all molestation, whilst the other portion (on board the vessel) is condemned as 'prize of war?'