any volumes have been written in regard to the rights in general and duties of neutral nations. But it is easy to see that these cannot be exactly defined; that, with the exception of a few leading principles, they are necessarily subject to much alteration; and that a line of conduct which a neutral power might very properly follow at one time and under one set of circumstances, might be very improper at another time and under a different set of circumstances. This arises from the fact, that the rights and duties of neutrals are not absolute, but relative only. They are in all cases affected by, and mixed up with, the rights of belligerents. And as the latter vary with the varying nature of different contests, so must the former, or the rights of neutrals.
In general it may be laid down that it is the duty of neutrals to conduct themselves in a spirit of perfect impartiality, and to do nothing that can be fairly considered as being peculiarly favourable or hostile to either of the parties engaged in hostilities. And this is about the only principle that can be said to be universally applicable to neutrals.
We do not mean, in the few remarks we have to offer on this subject, to enter into any inquiries with regard to the conduct of neutrals on land. The questions to which such conduct may give rise are for the most part easy of solution, and have comparatively little interest. But it is otherwise with those questions which arise out of the proceedings of neutrals at sea. These give birth to questions in regard to which there is much diversity of opinion; and which, from our being a great maritime power and their direct bearing on our interests, have always been justly looked upon in this country as of paramount importance.
I. When two nations are engaged in war, if there be any foreign article or articles necessary for the defence or subsistence of either of them, and without which it would be difficult for it to carry on the contest, the other may legitimately exert every means in its power to prevent its opponent being supplied with such article or articles. All writers of authority on international law admit this principle; and lay it down, that a nation which should furnish a belligerent with articles contraband of war—that is, with supplies of warlike stores, or of any article required for the prosecution of the war—would forfeit her neutral character, and that the other belligerent would be warranted in preventing such succours from being sent, and confiscating them as lawful prize. And besides being consistent with the most obvious principles, approved by jurists, and enforced in every contest, this doctrine has been sanctioned by repeated treaties. The only difficulty, indeed, that has ever arisen in regard to this matter has been with respect to the articles which should be reckoned contraband of war; and in the view of obviating such difficulty, these articles have sometimes been specified in treaties and conventions. (See the references in Lampredi del Commercio de' Popoli Neutrali, § 9.) But this classification has not always been respected during hostilities. And it is sufficiently evident that an article which may not be contraband at one time, or under certain circumstances, may become contraband at another time, or under different circumstances. It is admitted on all hands, even by Hubner, the great advocate for the freedom of neutral commerce,1 that everything that may be made directly available for hostile purposes is contraband, as arms, ammunition, horses, timber for ship-building, and all sorts of naval stores. The greatest difficulty has occurred in deciding as to provisions (munitions de bouche), which have sometimes been held to be contraband, and sometimes not. Lord Stowell has shown that the character of the port to which the provisions are destined, is a principal circumstance to be attended to in deciding whether they are to be looked upon as contraband. A cargo of provisions intended for an enemy's port, in which it was known that a warlike armament was in preparation, would be liable to arrest and confiscation; while, if the same cargo were intended for a port where none but merchantmen were fitted out, the most that could be done, according to his lordship, would be to detain it, paying the neutral the same price for it he would have got from the enemy.
By the ancient law of Europe, a ship conveying any contraband article was liable to confiscation as well as the article. But in the modern practice of the courts of admiralty of this and other countries, a milder rule has been adopted, and the carriage of contraband articles is attended only with the loss of freight and expenses, unless when the ship belongs to the owner of the contraband cargo, or when the simple misconduct of conveying such cargo has been connected with other malignant and aggravating circumstances. Of these, a false destination and false papers are justly held to be the worst.
It appears pretty evident that the principle on which the doctrine of goods contraband of war has been established may justify, or rather require, its extension to various important articles not hitherto or usually reckoned as contraband. The rights of belligerents to hinder neutrals from supplying their enemies with articles necessary to enable them to carry on the contest, is alike clear and undoubted. But a foreign article, indispensable or highly useful to a nation engaged in war, may not be of the class called munitions de guerre, and may not be directly available in the prosecution of hostilities. That, however, is really immaterial. It is enough to warrant the prevention of its importation, that without it the importers would be unable to continue the contest, or that the inconveniences resulting from the want of it would be so very considerable as to dispose them to sue for peace, or to accept reasonable terms if offered. The distinctive peculiarity of articles declared to be contraband of war is not that they belong to one class of products or another, but that the want of them would inflict serious injury on the party by whom they are imported.
Considered in this, its true light, the term "contraband of war" becomes of the highest importance; and there are
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1 De la Soisie des Détissens Neutres, tom. I., p. 193. Neutrality.
extrality, but few products which may not be fairly brought, at one period or another, within the list of contraband articles. Thus, supposing that we had the misfortune to be engaged in a contest either with a single power or a combination of powers which had means to intercept, cut off, or materially obstruct our supplies of corn, cotton, and tea: can any one doubt that our enemies would be justified, or that they would hesitate, in availing themselves of so powerful a means of annoyance? Neutrals might join us in protesting against such a proceeding, on the ground that the articles referred to had not hitherto been reckoned contraband of war, and they might also allege that their trade would be seriously prejudiced by so unusual and so illegal a proceeding. But these representations, supposing them to be made, would not go for much. Our enemies would say, that in defining contraband of war, everything depended on circumstances; and that as the want of the articles referred to would lay us under very considerable difficulties, they were, from that very circumstance, properly included in the prohibited list. They would no doubt express at the same time their regret that this conduct of theirs should be productive of injury or inconvenience to neutrals. That was not its purpose. They had resorted to it in the exercise of their undoubted rights as belligerents; and it was only indirectly and by accident that it affected neutrals. When great nations are at war, such contingencies can seldom be avoided; and when they occur, they should be ascribed to the necessity of the case, and afford no reasonable ground of complaint.
Nations engaged in hostilities may not always have acted on these principles; but if so, it will be found that their forbearance was not dictated by a want of right or of will, but of power. Supposing that we were unhappily again engaged in a struggle with France, we could not employ our navy in any way more likely to accelerate the return of peace than in preventing the importation of cotton, colonial produce, and naval stores, into that country; and the exportation of her silks, wines, and other products. This would be a very likely way to distress our enemy; and the more he is distressed, the sooner will the struggle terminate.
In the following Declaration in regard to maritime law, signed by the principal European powers in 1856, the disputes to which its uncertainty has led are justly deplored:
Declaration respecting Maritime Law, signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, April 16, 1856.
"The Plenipotentiaries who signed the Treaty of Paris of the 30th of March 1856, assembled in Conference,
"Considering:
"That maritime law, in time of war, has long been the subject of deplorable disputes;
"That the uncertainty of the law, and of the duties in such a matter, gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts;
"That it is consequently advantageous to establish a uniform doctrine on so important a point;
"That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their Governments are animated, than by seeking to introduce into international relations fixed principles in this re-Neutrality aspect:
"The above-mentioned Plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of attaining this object; and, having come to an agreement, have adopted the following solemn Declaration:
"1. Privateering is, and remains, abolished;
"2. The neutral flag covers enemy's goods, with the exception of contraband of war;
"3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag;
"4. 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.
"The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the States which have not taken part in the Congress of Paris, and to invite them to accede to it.
"Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their Governments to obtain the general adoption thereof will be crowned with full success.
"The present Declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it.
"Done at Paris, the 16th April, 1856.
(Signed) Buol-Schauenstein.
Walewski.
Clarendon, &c."
But the "uncertainty" complained of in the above Declaration is not of a kind that can be got rid of. It is inherent in the subject. Maritime laws of the class now under consideration do not rest on any fixed or immutable principles. They necessarily vary with the varying condition and exigencies of society. And those rules and regulations that may in the estimation of one country appear to be alike just and expedient, may in that of another be held, on quite as good grounds, to have exactly the opposite qualities. The above Declaration expressly excepts articles contraband of war from the privileges conceded to goods on board neutral ships; but it does not specify the articles which are to be considered contraband. And it was quite as well that this vexed, or rather insoluble question was left open; for it is most probable that the plenipotentiaries who subscribed the Declaration would not have agreed on any definition. And supposing they had subjoined a list of contraband articles to the Declaration, it would very speedily have ceased to be of any weight. Whether an article should or should not be deemed to be contraband depends on circumstances which it is impossible to foresee or appreciate beforehand. And such being the case, it is futile to attempt to prevent further disputes by making out lists of contraband articles. We have seen that this has been frequently attempted, and it has as frequently failed. Such lists may be respected for a while; but as soon as any contracting party or great power conceives that it would be for her interest or advantage to exclude some articles from, and to include others in, the list, there is an end of its influence and authority.
1 Une puissance belligérante ne peut voir avec indifférence que son ennemi se renforce par des marchandises qui servent directement et indubitablement à faire la guerre; et elle ne blesse pas le droit des gens si elle empêche que ses marchandises ne parviennent à l'ennemi en les détenant, soit pour en payer la valeur au propriétaire, soit pour les restituer quand le danger sera passé. On peut même imaginer que dans les circonstances extraordinaires justifieraient une telle détention à l'égard des marchandises, qui ne servent pas exclusivement à l'usure de la guerre, et sur lesquelles elle ne peut dans la règle s'arroger aucune disposition. (Martens, Preu du Droit Public, lib. viii., cap. 7, § 315.) Heineccius says, "Dans une guerre il ne s'agit pas même de demander s'il peut-être permis à quelqu'un de porter à notre ennemi ce qui peut lui être nécessaire quelque nous avons le droit de prendre les armes contre quiconque s'opposerait à notre défense ou la rendrait difficile ou incertaine." (Quoted by Lampredi, p. 47, Paris 1802; see also Vattel, book iii., cap. 7, § 113, and a host of other authorities.) Neutrality. The principle that free ships make free goods, or that the flag covers the cargo (que le pavillon couvre la marchandise), and that consequently enemies' goods, not contraband of war, may be safely conveyed in neutral bottoms, after being long resisted by this and most other maritime states, has been assented to in the Declaration referred to. In judging of the wisdom of this concession, everything depends on the interpretation of the phrase "contraband of war." If it were restricted, as has usually been the case, to warlike stores (munitions de guerre), or articles directly available for warlike purposes, it would be in many respects justly censurable. For it is plain, that under the limitation now supposed, the trade of a belligerent power, with its colonies or other countries beyond sea, might be prosecuted in neutral ships nearly to the same extent, and with as much security, during war as during peace. But it is not easy to imagine that a principle having such consequences should be acted upon by any power having a preponderating naval force, in the event of her engaging in hostilities. Such power must then do one of two things: she must either consent to relinquish some of the most important advantages to be derived from her naval ascendancy, or she must reject the principle in question. And there is little doubt that she would adopt the latter alternative; and she might do this directly, by resorting to her natural and indefeasible right, to seize enemies' goods wherever they are to be met with; or indirectly, by extending the list of contraband articles, so as to make it include all those of any importance carried by sea into or from the enemy's ports. Either way would answer the purpose; and we may be pretty well assured, that under the supposed circumstances one or other of them would be followed.
II. But it may perhaps be said, that though the right to carry enemies' goods not contraband of war be conceded to neutrals by the Declaration of Paris, that right is restricted and confined within proper limits by the maintenance of the system of blockade. But we take leave to doubt whether this restriction be good for much. It is distinctly laid down in the Declaration, that to be binding or legal, a blockade must be effective; that is, it must be "maintained by a force sufficient really to prevent access to the coast of the enemy." But though the blockade of one or of a few ports may perhaps be made effective, it is abundantly certain that no such blockade can ever be made to apply to an extensive coast. Though our navy were doubled or trebled, it would not suffice to make an effective blockade of the coasts of France, of Spain, or of the United States. And why should a country with a powerful naval force bind herself beforehand to employ it only in one way? Why not employ it in any way, whatever it may be, which happens to be at the time most conducive to the ends she has in view?
But supposing that an impossibility may be realized, or that an extensive coast may be effectually blockaded, the circumstance would be of much less consequence now than formerly, or than is generally imagined. Suppose, for example, that we are at war with France, and that we effectively blockade every portion of her coast, whether on the ocean or the Mediterranean: the result would be, that the over-sea produce suitable to her wants would be imported into the contiguous ports of Belgium, Spain, and Piedmont, and that it would be carried from them by railways and otherwise to every part of France.
It is plain, therefore, that these are not matters in which much dependence can be placed on the resource of blockades. These may be advantageously resorted to when the object is to reduce a town, to obstruct the trade of a port or a river, to prevent the sailing of a squadron, and so forth; but as measures directed against the trade of any great country, they must be nearly, if not wholly, impotent. In the case of France, it is quite clear that the strictest possible blockade could not inflict half the injury on her that its maintenance would entail upon ourselves. If the trade of neutrals in war is to be influenced by nothing but effective blockades, it may be held to be practically free from all obstruction. But it cannot be supposed that when the evil day comes it will be so dealt with. When the existence of nations are at stake, they will not be withheld by declarations like the above from availing themselves of every means by which they may hope either to promote their own security or to injure their enemies.
III. It is further obvious, were the rules laid down in the Declaration of 1856 to be carried into effect without of the new large additions being made to the list of contraband articles, that neutrals would engross almost the entire over-sea trade of countries engaged in war. Comparatively few of the articles which we export come under the description of warlike stores; and supposing we were to be engaged in hostilities, neutral ships which did not take on board contraband articles would navigate with perfect security, while our ships would be exposed to the risk of capture. The magnitude of this risk would depend on various contingencies, and would be measured by the higher premium of insurance that would have to be paid on them and on articles embarked in them. But considering the close competition to which our shipowners are already exposed, the additional premium they would have to pay, even though it were not very considerable, would most probably turn the scale in favour of the neutrals; and if they were once introduced and employed for any considerable period, it might not be an easy matter for our ship-owners to regain the ground they had lost, or to recover their former position, on hostilities being terminated. But in whatever way it may be defeated or eluded, it is not to be supposed that we should abide, in periods of war and difficulty, by a rule that would tie up our hands and consign the entire over-sea trade of the empire to foreigners. This would be a degree of liberality to which we can hardly be expected ever to arrive, and which, were it realized, would be more injurious to our best interests than the most intense selfishness.
IV. Some of the more recent opponents of the old system Project for of maritime law do not deny these statements. But they exempting allege that they are founded on false principles. Private property at property, say they, is now respected in all contests carried on by land; and it would be for the advantage of all nations, whether belligerent or neutral, were the same war, humane and generous policy extended to private property at sea. But this sort of reasoning is more specious than solid. On a little examination it will be found that the cases have no real analogy. Private property on land, and the treasures of art and learning, are respected so far, that they are sometimes unconditionally, but frequently also on the payment of a contribution or ransom, exempted from injury. This is done because experience has shown that, while the destruction of the articles referred to may be productive of much misery and loss, it has little or no influence over the decision of the contest. But we are not hence to infer that the destruction of private property at sea will be equally ineffectual. In our unfortunate contest with the United States in 1814, the destruction of the Capitol at Washington was an act disgraceful to our arms, and which had no effect except to inflame the hostile feelings of the Americans. But the severe check which the contest gave to the trade of the Union made the citizens generally averse to the war; and was, indeed, the main cause of its being so speedily terminated. No such result could, however, have happened had American merchant ships been exempted from capture or molestation.
Suppose we are at war, and that our enemy, having succeeded in landing a force in some part of the kingdom, such as Kent or Connaught, inflicts on the peasantry out- Neutrality, rages similar to those which the troops of Louis XIV. inflicted on the defenceless inhabitants of the Palatinate; such proceedings, by not sensibly affecting either our wealth or the sources of our power, would in no wise accelerate the termination of hostilities. On the contrary, they would tend to their prolongation, by inspiring us with a strong desire to avenge such wanton and unnecessary cruelty. But it would be quite another matter were our enemy able seriously to obstruct our trade, to prevent our exports, or to sink, burn and destroy the ships that were conveying to us supplies of necessary articles. Such proceedings might lay us under the greatest difficulties, and would be the most likely means to make us listen to proposals for an accommodation.
Everybody knows that the unpopularity of the French rule in Germany and other parts of the Continent, in the latter part of the war against Napoleon, was in great measure occasioned by the destruction of their trade, which, on the one hand, rendered their corn and other disposable produce a mere drug; while, on the other, it added enormously to the prices of cotton, sugar, coffee, and most foreign articles. But had the rules and regulations embodied in the Declaration of 1856 been then in force, no such result would have happened. We should have had the singular combination of maritime peace and territorial war. And the trade of Prussia, Holland, and the other countries subject to France, and, indeed, of France herself, would have been as securely and cheaply carried on in neutral bottoms as it would have been in a period of universal tranquillity. Nothing, therefore, can be more contradictory and illogical than to contend that we are bound to extend the same immunity during war to private property at sea that is extended to private property on land. The cases are in no degree parallel. In the one, private property is respected because its destruction is seldom injurious except to the individuals immediately interested, and has little or no general influence; in the other case, private property is seized or destroyed because those from whom it is taken, being the carriers or purveyors of necessary articles for the community, their loss must seriously affect the latter, and may reduce them to the greatest straits.
V. The abolition of privateering by the Declaration of Paris is of the highest importance, and should give general satisfaction. This practice appears to be a remnant of that system of private war which is universally waged by individuals in early or barbarous ages, but which gradually disappears as society advances. Privateers rarely attack ships of war. They do not act in concert, or with any object in view other than their own private gains. They are, in truth, a sort of legalized robbers; and while they occasion much individual suffering, they have little or no influence over the result of the war. But their employment is principally objectionable from its having been found that, despite every precaution, it is not possible to hinder them from committing the greatest excesses. The desire to amass plunder is the ruling passion by which they are actuated; and being so, it would be childish to suppose that they should be scrupulous in their proceedings, or that they should endeavour to keep within the pale of the law when they think that their objects will be likely to be promoted by overstepping its limits. And hence their injurious treatment of the ships of neutral and friendly powers. A system of this sort may perhaps be useful to a nation which has little trade, and may hope to acquire riches by fitting out privateers, without being exposed to the risk of retaliation. But except under very peculiar circumstances, it is difficult to suppose that it should be advantageous to a nation with an extensive over-sea trade. A notion has, indeed, been long entertained, that while the interests of humanity would be promoted, the rights of belligerents would not be injuriously affected by the abolition of privateering. It was stipulated, for instance, in the treaty between Sweden and the United Provinces in 1675, that neither party should in any future war grant letters of marque against the other; and stipulations to the like effect have since been embodied in various treaties. These, however, being only isolated efforts, were insufficient materially to abate the nuisance, which could not be put down without an agreement to that effect by the great powers, such as has been announced in the Declaration of 1856.
The United States, however, though possessed of a most extensive mercantile marine, have refused to consent to the abolition of privateering. But they have not done this capriciously; nor is it to be denied that there is a great deal of weight in the reasons given by the American government for their refusal. They grow out of circumstances peculiar to the United States,—that is, of their warlike navy bearing but a very small proportion to their mercantile navy, which is the largest in the world. And they contend, that were they to abolish privateering, their merchant ships would be captured in vast numbers by the numerous cruisers of their enemies; while the merchant ships of the latter, owing to the fearness of their own ships of war, would be comparatively little affected; and that to restore the balance, to place themselves on a level with their opponents, they have no resource but to appeal to the patriotism (selfishness) of their citizens by licensing privateers.
The Americans have, however, intimated their willingness to assent to the abolition of privateering, provided the other powers agree not to attack or molest private ships at sea during war. Such an agreement would no doubt be very much for their advantage; but we have already seen that it is not one to which we can consent without at the same time, and by the same act, consenting to forego the use of some of the most powerful of our means of defence and attack. This, however, is about the very last thing that we either should or will do. No British statesman will ever agree to an arrangement that would diminish our powers and paralyze our energies at the very moment when, perhaps, our independence and security may depend on these being exerted to the utmost.
VI. Nothing is said in the Declaration of 1856 in regard to the right of visitation and search, probably because it is obviously inherent in belligerents; for it would be absurd to allow that they had a right to prevent the conveyance of contraband goods to an enemy, and to deny them the use of the only means by which such right can be made available. The object of the search is twofold: first, to ascertain whether the ship is neutral or an enemy, for everybody knows that the circumstance of its hoisting a neutral flag affords no security that it is really such; and, secondly, to ascertain whether it has contraband articles or enemies' property on board. All neutral ships that would navigate securely during war must consequently heave-to when summoned by the cruisers of either belligerent, and be provided with passports from their government, and with all the papers or documents necessary to prove the property of the ship and cargo; and they must carefully avoid taking any contraband articles, and perhaps also belligerent property, on board. And hence it has been generally admitted that a merchant ship which seeks to avoid a search by crowding sail or by open force, may be justly captured and confiscated.
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1 L'armateur indifférent au sort de la guerre et souvant de sa patrie, n'a d'autre amorce que l'avilité du gain, d'autre récompense que ses prises et les prix attachés par l'état à ses pirateries privilégiées. (Martens, Essai sur les Armateurs, cap. I., § 8.) This essay, which was translated into English, and published in 1801, contains the fullest details in regard to privateering. Valin, who defends and even eulogizes privateering, admits that it is very apt dépanner en abus et en brigandage. (Traité des Prises, I., cap. I., § 7.)
2 See Letters of Mr Marcy to the Count de Sartiges, 23th July 1856. One of the most difficult questions in regard to the right of search has reference to merchantmen sailing under convoy. Is the allegation of the officer commanding the vessel of war conveying the merchantmen, that the latter have no contraband articles or belligerent property on board, to be held to be sufficient to nullify the right of search? or may the exercise of that right be notwithstanding insisted upon?
A case of this sort occurred in the early part of 1798, when a fleet of merchantmen belonging to Sweden, a neutral power, and sailing under convoy of a frigate, were detained by a British squadron. The Swedish captain, on the question being put to him, answered that the ships were destined for different ports of the Mediterranean, and that they were laden with hemp, iron, pitch, and tar. These articles were the produce of Sweden; but as they have most commonly been reckoned contraband of war, and as France and her allies had many ports on the Mediterranean, there can be little or no doubt that we were warranted, despite the threatened but unattempted opposition of the Swedish captain, in detaining the ships. But besides being detained, they were condemned with their cargo as lawful prize; a proceeding which gave rise to a great deal of discussion at the time, and which it is not easy to justify.
In the event of the captain of a vessel conveying neutral merchantmen distinctly declaring that they have no contraband articles or enemy's property on board, their detention or search would be a very strong measure. It would, in truth, be an insult to the flag and honour of the neutral power. And unless the presumptions that the captain had emitted a false declaration were exceedingly strong, to question his veracity would be an act contrary to the comity of nations, and one that a high-spirited people would be sure to resent. But except in the case of a limited number of vessels sailing to specified ports under convoy, and when there is a clear and explicit declaration by the officer in command that they have neither contraband articles nor belligerent property on board, the right of search, supposing it to be exercised without any unnecessary violence, is one that is essential to belligerents, and cannot be justly objected to.
(J. R. M.)