International Law

by

Henry Maine

LECTURE V.
NAVAL OR MARITIME BELLIGERENCY.

To sum up what I have been saying. I have been discussing certain legal fictions which are signified through legal metaphors, and especially one of them by which places and things not actually within the territorial jurisdiction of a state are supposed to be within that state for the purpose of collecting into a group the rules of law which apply to them. This fiction of ex-territoriality is applied by general consent to the residences and persons of ambassadors and diplomatic agents in foreign countries, and on the whole the law on these subjects is expressed with sufficient accuracy by the fiction before us. By most nations the fiction is also applied to the portions of sea adjacent to the coast and deemed to be what is called the territorial waters of a particular state; that is to say, water which, so far as water can be assimilated to land, is regarded as part of the state's territory. Finally, by some communities a merchant ship on the high sea is alleged to be ex-territorial -- to be in the same position as the territory of the country to which she belongs. In this last way the fiction before us has become mixed with a very important branch of law, the law of Naval Belligerency, and I use it as a convenient point of transit to that subject which I might take up at several places in these lectures, but which I wish to include in this portion of them for several cogent reasons. It is a province of law which rose into extreme importance at the end of the last century and the beginning of the present; it has long been, and still is, the field of many bitter disputes; it is a part of International Law in which a great reform has recently been attempted; and though the attempt partially miscarried, the cause of failure deserves our attention on a variety of grounds; it sheds light on certain weaknesses of the international system, and raises a very serious question as to the true interests of England in a reform of that system which all but obtained the assent of the civilized world.

I proceed, therefore, to deal with naval or maritime belligerency in its effects on belligerent Powers and on neutrals. The elements of the subject are simple. When two states go to war, the ships, public and private, of one are, relatively to the other, so many articles of movable property boating on the sea. The capture of one of them by a ship of the other belligerent is prima facie regulated by the same principle as the seizure on land of a valuable movable by a soldier or body of soldiers. The law on the subject descends to us directly from the Roman Law. The property of an enemy is one of those things which the Roman Law in one of its oldest portions considers to be res nulliusno man's property. It may be taken just as a wild bird or wild animal is taken, by seizing it with the intention to keep it; but it is expressly laid down that a wild animal if it escapes ceases to be the property of the captor; and the question is, when is the captured property so reduced to possession as to make it altogether the property of the captor?

There was much dispute on this point among the interpreters of Roman Law. Some, including Grotius, maintained that the proper test was time, and the thing had to be possessed by the captor for four-and-twenty hours. A trace of this rule may be seen in the alleged power of the maritime captor to destroy the vessel which he has taken when he has no means of bringing it into a port. There is, however, another rule of Roman origin which has gradually supplanted the first mentioned. The captor must take the captured property infra presidia, within the fortified lines of a Roman camp. This applied to maritime warfare means nowadays at sea a port of the captor's country, as distinguished from an open roadstead, or the port of an ally of the captor or the port of a neutral Power. As it is sometimes put, the ship must be taken into military possession; that is, into a possession from which it cannot be rescued otherwise than by force. But in order that the captor may have the full benefit of his capture, yet another condition must be satisfied. The captured ship and its cargo, or cargo belonging to the enemy but found in a neutral ship, must be taken before a prize court and condemned as lawful prize. Till this condemnation has taken place the purchaser of the captured property could not be sure that he had a complete title to it, and could not obtain full value for it if he sold it.

Prize courts are sometimes called international courts, and no doubt modern International Law does, to some extent, recognize them; but in principle a prize court is a court established by positive municipal law, and it is entrusted by the sovereign of the state in which it is established with the duty of deciding whether ship or cargo is prize or no prize. In the abstract its object is to satisfy the conscience of the sovereign that the captures made by his subjects are valid captures. He is always, in theory, supposed to be responsible for them. But the great practical function of a prize court is to decide between the belligerent sovereign's subjects and subjects of neutral states. Neutral goods may form part of the cargo found in the enemy's ship which has been legally captured; or, again, cargo belonging to the other belligerent may have been found on the high sea in a neutral ship; or, again, the vessel brought into port may have been unlawfully captured through having been in the territorial waters of a neutral state, or by an attack organized in such territorial waters. In both of these cases capture is forbidden. If the belligerent sovereign permitted them, he would be guilty of an injury to an unoffending neutral.

The capture of ship or cargo belonging to one belligerent by the armed ships of the other is part of the fortune of war; nor can the captor much complain of having to bring his prize into a port for condemnation. So far as the captured vessel is concerned, this hardship is somewhat mitigated by the practice of what is called 'ransoming.' The commander willing to promise a definite sum for ship or cargo prepares a document which is called a 'Ransom Bill.' It is drawn in duplicate. The capturing officer takes one copy, and the commander of the captured ship another; and this ransom bill operates as a safe-conduct to the captured vessel on her voyage to a separate port. So far as relates to cruisers of the other belligerent, she enjoys immunity from their power of capturing her unless she has varied her course so as to raise suspicion of an intention to escape.

The real hardships of capture at sea, to which a large part of the world is not, even now, reconciled, are those affecting neutrals. If an enemy's ship at sea contains neutral cargo, the neutral must submit to have his goods taken into port for adjudication, and must of course forego opportunities of obtaining a favorable market, though his goods are not liable to capture. If a neutral ship contains admittedly enemy's cargo, the captain must submit to have his goods transshipped. These rules are of much antiquity. They are found in one of those treatises which are authorities on International Law, but which are older than its recognized beginning. In the ' Consolato del Mare,' which is supposed to contain the maritime usages of the seas which formed part of the Mediterranean basin, there are various laws with reference to the capture of neutral ships and neutral cargo, and enemy's cargo in neutral bottoms. These seas were, in the days in which these usages grew up, full of small commercial ports, all manufacturing and exporting, and not situated at great distances from one another. The origin of the rule which we are discussing exactly fits in with the relations of a certain number of small sovereignties of this kind; and that this is really the origin of the rule before us is indicated by provisions relating to the interruption of voyage, as for example by rules compelling the neutral ship to change her course for the port of the captor, and providing that she shall have compensation for her loss of time. The condition of these seas which I have sketched -- a number of small towns engaged in actual commerce, but not separated from one another by any great length of sea -- goes far to explain this ancient maritime law; but as one maritime Power and another grew in strength and came to value the advantages of neutrality, the discontent with these old rules began, and a desire arose for a more general and simpler system. One, in fact, which grew up was looked upon with much favor. It is often denoted by a sort of jingle which does not convey a real antithesis: 'Enemy ships, enemy goods; free ships, free goods.' All the cargo found in a hostile vessel may be made prize; if the vessel itself belong to a neutral, all the goads shall be treated as neutral property and shall not be liable to capture. France was on one side with a severe rule confiscating the neutral ship when any hostile cargo was carried in it, while the Dutch were for a system more lenient to neutrals, and finally France herself became patroness of this rule.

Many treaties have been negotiated between civilized states which embodied either both these rules or one of them; but still the rule which enables the belligerent to capture hostile cargo wherever he finds it, was on the whole that which lay at the base of International Law. The first serious attempt to effect a general reform of this principle was undertaken at the close of the Crimean war; and in 1854 the Powers which had taken part in, or had been most directly interested in, that war, issued what was called the Declaration of Paris. After reciting that maritime law in time of war had been the subject of deplorable disputes; that the uncertainty of this law gave rise to differences of opinion which might occasion serious differences and even conflicts, the plenipotentiaries at Paris, seeking to introduce into international relations fixed principles on the subject before them, declare that they have adopted the following summary of the rules which they wish to see carried into practice: First, privateering is abolished; second, the neutral flag covers enemy's goods with the exception of contraband of war; third, neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag; fourth, blockades in order to be binding must be elective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. The net result shows that the rule, free ships make free goods, was adopted; but the other rule which has so often been coupled with it, enemy ships make enemy goods, was not adopted.

This Declaration was adhered to by all the Powers who had joined in the Crimean war, and it seemed for awhile that it would receive the assent of the whole of the civilized world, thus forming the first great example of a reform of the Law of Nations resting on the basis of expressly pledged faith instead of the older foundation of precedent and ancient rule. But on the Declaration being submitted to the United States, the Government of that country objected to the first article, 'Privateering is abolished.' A privateer is an armed private ship commissioned by belligerent sovereign to depredate on the commerce of his enemy, and rewarded by a share of the capture, which in recent times has amounted nearly to the whole of it. The reason given for the refusal of the United States by Mr. Marcy, the Secretary of State, was plausible enough.

'The United States considers powerful navies and large standing armies as permanent establishments to be detrimental to national prosperity and dangerous to civil liberty. The expense of keeping them up is burdensome to the people; they are in some degree a menace to peace among nations. A large force ever ready to be devoted to the purposes of war is a temptation to rush into it. The policy of the United States has ever been, and never more than now, adverse to such establishments, and they can never be brought to acquiesce in any change in International Law which may render it necessary for them to maintain a powerful navy or large standing army in time of peace. If forced to vindicate their rights by arms, they are content, in the present aspect of international relations, to rely in military operations on land mainly upon volunteer troops, and for the protection of their commerce in no inconsiderable degree upon their mercantile marine. If this country were deprived of these resources it would be obliged to change its policy and assume a military attitude before the world. In resisting an attempt to change the existing maritime law that may produce such a result, it looks beyond its own interest, and embraces in its view the interest of such nations as are not likely to be dominant naval Powers. Their situation in this respect is similar to that of the United States, and to them the protection of commerce and the maintenance of international relations of peace appeal as strongly as to this country to withstand the proposed change in the settled Law of Nations. To such nations the surrender of the right to resort to privateers would be attended with consequences most adverse to their commercial prosperity without any compensating advantages. . .

'It certainly ought not to excite the least surprise that strong naval Powers should be willing to forego the practice, comparatively useless to them, of employing privateers, upon condition that weaker Powers agree to part with their most effective means of defending their maritime rights. It is in the opinion of this Government to be seriously apprehended that if the use of privateers be abandoned, the dominion over the seas will be surrendered to those Powers which adopt the policy and have the means of keeping up large navies. The one which has a decided naval superiority would be potentially the mistress of the ocean, and by the abolition of privateering that domination would be more firmly secured. Such a Power engaged in a war with a nation inferior in naval strength would have nothing to do for the security and protection of its commerce but to look after the ships of the regular navy of its enemy. These might be held in check by one-half or less of its naval force, and the other might sweep the commerce of its enemy from the ocean. Nor would the injurious erect of a vast naval superiority to weaker states be much diminished if that superiority were shared canons three or four great Powers. It is unquestionably the interest of such weaker states to discountenance and resist a measure which fosters the growth of regular naval establishments.'

It is at the same time to be remarked that this opinion, though intelligible, had not always prevailed, and that early in their history the United States had negotiated, through Benjamin Franklin, a treaty with Prussia in 1785 by which it was stipulated that in the event of war neither Power should commission privateers. On the other hand, an early president of the American Union, Monroe, had laid down that it was unworthy of civilized states to prey upon private property when in transit at sea. The result of the refusal of the United States to assent to the Declaration of 1854 was that this Declaration has not become part of the general law of other civilizations, for the assent of a state which is perhaps destined to be the most powerful in the world, and certainly the most powerful neutral state in the world, has been withheld from it. But the United States Government expressed its willingness to join in a modified form of the Declaration, if all private property at sea should be exempted from capture, as President Monroe had argued that it ought to be; and there is good reason to believe that if the signatories of the Declaration would agree to this exemption of private property, the United States would withdraw their objection to the abolition of privateering.

The first article of the Declaration was invoked in a dispute which arose between the French and Prussian Governments, then at war, during the contest of 1870. The Prussian Government, soon to be merged in that of Germany, proposed to raise a volunteer navy. All German seafaring men were to over themselves for service in a Federal navy for the whole period of the then proceeding war. The French Government objected to this as a breach of the first article of the Declaration. They declared that it was a species of revival of privateering. Some writers, including Mons. Calvo, and to a certain extent Mr. Hall, have supported these views; but some conditions of the service proposed to be established, as for example the necessity for the volunteers wearing a uniform, the incorporation of the new force with the existing navy, and an oath to articles of war, seem to me to take these naval volunteers out of the class of privateers. As a matter of fact, the Decree was never practically acted upon.

It will be seen from the text of the Declaration of Paris, which is set forth above, that its rules do not apply in two cases: first, where contraband of war is carried in a ship; and next, in the case of a ship endeavouring to obtain entrance to a blockaded town. Therefore the law of contraband of war and the law of blockade are not touched by the reform under the Declaration of Paris, except so far as a principle long contended for is applied to blockades.

From the very beginning of International Law a belligerent has been allowed to prevent a neutral from supplying his enemy with things capable of being used immediately in war. Such things are called technically 'Contraband of War,' and may be condemned independently of all question as to the neutrality of the owner. The ship and cargo are taken into a port of the captor; the contraband is condemned in a prize court, but the fate of the ship itself varies. If the ship belongs to the owner of the contraband, or if the owner of the ship is privy to the carriage of the contraband, the ship is condemned; but not so if the ship belongs to a different owner, who knows nothing of the destination of the contraband commodities. This branch of International Law is complex and difficult, but it owes its intricacy and difficulty to one special question: what are the articles stigmatized as contraband? From the very first, Grotius had laid down that things directly used in war -- for example, weapons -- were contraband. He also ruled that things useless in war, articles of luxury as he described them, were not contraband. But outside these categories there were a great number of things capable of employment both in war and peace -- res ancipitis usus -- and it is in regard to these that innumerable questions have arisen. Are articles of naval construction -- for example, the raw materials of sails and cordage -- contraband? Do they become so at any particular stage of manufacture? Are iron, brass, steel, etc. contraband? Are coals and horses? Are provisions contraband? To these questions all sorts of answers have been given. In many special treaties the list of contraband and non-contraband commodities is given, and the practice of states is extremely various. On the whole the most general rule which can be laid down is that, with the exception of weapons or munitions of war, the contraband, or non-contraband, character of the cargo must depend on its destination, and on the nature of the particular war which is going on. The commodity most recently sought to be brought into the list as contraband is coal. England, the great exporter of coal, refused to admit its being necessarily contraband; but in the war of 1870 the English Government declined to allow British coal to be carried to a French fleet that was lying in the North Sea. The most vehement of the disputes has been, perhaps, that about provisions. At the end of the last century, when the great war of the Revolution had beam, English statesmen believed the French population to be on the point of starvation; and that the French were suffering great distress from scarcity of food is now most fully established. The English Government therefore seized all ships bound to a French port which were laden with provisions. As their enemy was believed by them to be on the point of abandoning the contest through want of provisions, they refused to allow the stock of provisions to be increased. Just at the same moment the United States had become the great neutral Power enjoying the advantages of the carrying trade, and the Government of the United States issued a series of vehement protests against the assumption of the contraband character of provisions in any circumstances. It is probable that in future provisions will only be contraband when destined for a port in which an enemy's fleet is lying. The point on which I desire to fix your attention is that the test of articles which are contraband of war is not yet settled.

The other portion of the older law which is not affected by the Declaration of Paris is Blockade. Blockade is defined as the interruption by a belligerent of access to a place, or to territory, which is in possession of an enemy. Blockade is probably confined to maritime hostilities; but it has considerable external resemblance to a siege by land, and the law of the one acting by land has visibly affected the law of the other acting by sea. But as a matter of fact the objects of blockade and siege are not the same. The aim of a siege is the capture of a strong place or town beset. The aim of a blockade is to put stress on the population of a port, or on the population behind it, through denying it communication, commercial or otherwise, with the rest of the world accessible to it only by sea. This it effects by the rules of International Law, which permit blockading ships to capture ships of the other belligerent which attempt to enter the blockaded port, or to come out of it, or which may reasonably be suspected of having this intention.

There are two main conditions of the capture of neutral vessels by a blockading squadron. One is that they must be warned of the existence of the blockade. The mode of giving this notice required by law varies in different countries. France and certain other countries give notice to each ship individually, their cruisers stopping it, and seeing that the stoppage is notified on the ship's papers. England and the United States make public notice in their own territory, and communicate the fact of the blockade to foreign Powers. Under modern circumstances, where information is conveyed over the civilized world by newspapers and the electric telegraph, it certainly seems that the English and American practice is sufficient. It is hardly possible that there should be ignorance nowadays of the existence of an established blockade.

The second condition is that mentioned in the Declaration of Paris: the blockade must be effective; that is, it must be maintained by a naval force strong enough to prevent access to the blockaded coast. It is the act of secretly evading a force on the whole adequate which constitutes the offense that subjects a neutral ship to capture -- what is called 'running the blockade.' The stress laid on the sufficiency of the blockade is a legacy from the last century. Hardly any country has not been at some time or other accused of establishing what is called a 'paper blockade;' that is to say, publicly announcing the blockade of a particular portion of the coast, but not supporting it by a sufficient force of ships. It is justly thought that such a blockade gives the maximum of annoyance to honest neutrals, but allows a maximum number of dishonest neutral adventurers to penetrate the line. Nothing can justify the absolute interdiction of a portion of the coast to neutral commerce except a method likely on the whole to secure that end. A blockade must as a general rule be continuously maintained, but an exception is allowed in the case of ships driven away by storm and stress of weather.