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the American amendment, which, having at first only fallen through owing to the opposition of England, was subsequently withdrawn by America herself.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.85 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.’86 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.’87 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.’88
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.’89
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.90 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.91 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.92 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.’93
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;94 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.95 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.96 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.97
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.98
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.’99 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.’100
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.101 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.’102 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.’103 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.104 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.105 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.