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MARITIME WARFARE.
IKY
THOMAS GIBSON gowLEs.
SEGOND EDITION.
LONDON: ‘
w. RIDGWAY, 169, PIGGADILLY, w.
1878.
LONDON:
c. NORMAN AND son, PRINTERS, 29, wanna LANE,
covm'r GARDEN-
PREFACE TO THE SECON D EDITION.

AT a time when men’s minds are agitated by
the question Whether England Will be forced to
declare War, it appears to be opportune to bring
out a second edition of this work, dealing as it
does With the question how far England can make
war, in case she should declare it, under the
enormous disadvantages inflicted upon her by
submission to the Declaration of Paris.
' That by this Declaration a serious loss of power
has been imposed upon the country has now been
admitted even by those Who approve of it on some
other grounds. To exhaust all the questions that
may be raised around this point has not been my
iv
object; but I have endeavoured to lay down the
principles of public law and to summarise the facts
afi'ecting it, as Well as to indicate all the sources
whence fuller facts and arguments may be derived
by those Who still care to inquire Whether the
power of England at sea has or has not been
diminished, and Whether it is or is not of any
importance that that power should be regained.
T. B.
CLEEVE LODGE,
HYDE PARK GATE.
27th March, 1878.
MARITIME WARFARE.

‘INT RODUCTION.
WAR consists in the lawful use of force by
one nation against another. That it should ever
be necessary to use force either between individuals
or between nations is lamentable : that it is some-
times necessary cannot be gainsaid. Every nation
as well as every individual not only possesses
the right, but is under the duty of resisting
violence by force ; otherwise violence must become
the only law of the world. And when we find
as we do, nations which do not merely practice
violence, but openly defend it and avow that
nothing short of force shall restrain them from
it, it especially behoves us to look to the means
we possess of resisting that violence, when it
is, as in the course of time it may be, directed
against ourselves. That the people, or at any
rate, that the Government of Great Britain have
shown themselves desirous to avoid war of any
kind, except it be in the shape of facile expe-
ditions against Weak and barbarous tribes, is
certain ; but what is equally certain is, that the
desire to avoid war cannot alone be sufiicient to
1
2
secure its avoidance. The honour of the Empire
may be thought an inadequate reason for putting
its interests to the hazard of an armed conflict
with any European State ; but if it once be felt
that its interests themselves are gravely concerned,
then it neither would nor could be held possible
to sacrifice them without a struggle.
It seems indeed as though no question short of
that of the absolute existence of the British Empire
would cause the British people, or induce any
British Government to embark in a European war.
And this it is which makes it a matter of such
vital necessity that nothing should be omitted to
place the country in a position, when the time
comes, to exert the whole of its strength.
For, if it be that We shall never fight again with
any Great Power unless for our very existence, we
are already foredoomed to destruction unless when
that conjuncture arises, We are found in a position
to put forth all those fighting powers which
Nature has placed within our reach.
With those who believe, or who, because they
desire it, affect to believe, that England will never
again be driven to draw sword in a great struggle,
it were needless to argue. History from the earliest
to the latest times teaches us that, among States as
among individuals, there are those which propose
to themselves the removal of their neighbour’s
landmarks and the acquisition of their neighbour’s
property by methods of fraud or of violence.‘ Such
3
are only in the last resort to be constrained and
resisted by force, and it were madness to suppose
that, now for the first time in the history of the
World, all necessity has finally and for ever dis-
appeared for so constraining and resisting them.
It is sufficient indeed to say that war has not
yet been reduced to an impossibility in order to
show that its possibility cannot be disregarded.
And if it be that Great Britain will not again go
to war unless it be for existence, then is it our
duty now more than ever to omit nothing that
can enable us to defend that existence by war,
if ever we are driven to it. The British Empire
is the most splendid prey in the world, and if
it be found without defence the most tempting ;
by so much the more therefore does it behove
us to ascertain what arms Nature has placed
in our hands for defending it, and to be sure
that we keep those arms in an effective state
against the evil day.
We who live in Islands have not to choose what
or where our defences shall be. Nature herself
which has brought to our doors the waters that
wrap the earth, has taught us plainly that by the
sea alone shall an enemy reach us or we him. She
has taught us that the sea is the gate and the
rampart of ouruhouse, and the waters our battle-
field, from which none can debar us, and which
while we hold them, as we may, are our sure bar»
rier against the world. If there be methods of
1 Q?
4
making war at sea so efiectual that they can reach
and paralyze the very heart of land-locked nations
remotely seated in continents; if there be means
of opposing sailors to soldiers and fleets to armies
so powerful that to control the seas is to coerce
the land; then indeed the British Empire may be
secured against all danger from without. If not;
if it be that, from any cause whatever, we are
found impuissant at sea, and unable by acting
there to produce any impression, then the days of
the British Empire are numbered. The invasion
of England itself is not impossible; it is not even
dificult; we have not and never can have an
army any way comparable in point of numbers to
that which any first-class Power could bring
against us. Conscription and universal military
service never should be and never can be estab-
lished in England, unless it be by an alien invader
after and as a result of the conquest and extinc-
tion of the country, as an independent state—when
indeed these islands would become as fine a
recruiting ground as Germany has found Poland
to be, and Russia the Cossack territory. But even
if it were established by ourselves for ourselves,
it would not materially mend matters. It has been
said, “ the English infantry is the best in the
world, luckily there is not much of it,’7 and it is
indeed because there is not much of it that it is
the best, because it does not forcibly enrol those
who are fitted only ‘for peaceful avocations, and
5
invites those alone who have the taste and capacity
for a soldier’s life. If we were to take the opera-
tives from every town, every tailor from his
board, every ploughman from his plough, and every
clerk from his desk, we should indeed increase the
numbers of our army, but it would be at the
expense of its fighting power. Putting aside there-
fore the probability that neither conscription nor
any system of universal military service would be
endured, we may easily conclude that what we
must be content with in land forces is a small but
efiicient army. One numerous enough to cope
with that of any of the first-class Powers we
cannot look for and should not desire ; one large
enough to act as a powerful auxiliary to our mari-
time force, and to furnish if necessary contingents
for continental service, we may have on terms which
will still make it the best in the world.
Very difi'erent are matters when we look to our
great and natural defence the sea. On this it is
as ‘easy for us to be the strongest in point both of
numbers and of quality as it is impossible on land.
The mere fact that our seafaring population is far
greater than that of any other nation is enough to
establish this; and standing beside that fact and
doubling its importance, is this other—-—that while
every landsman is not fit to fight, every seaman is
fit. Indeed, if taken all round, our land popula-
lation is probably less fitted than that of other
6
nations to undergo the fatigues and privations of
war; so that the fighting power to be got out of
it is less in proportion were it all drained into the
army, than is to be got out of nations whose
main work is on the land. And this is precisely
because in a maritime nation like ours the flower
of its manhood is always found in the seafaring
classes. The sea has no place for any but strong,
bold, and daring men, and it is of such alone that
good fighters are made. To compare our land
population with that of other nations, for numbers
only, is therefore fallacious in one way because a
large proportion of the best of ours have been
taken out of the land for the sea, while the best of
theirs remain; and to compare our seafaring
population for numbers with theirs is equally
fallacious in another way, for seafaring is our
principal business and takes our best men. It is
true that on the land we are the weakest of all
Powers; it is equally true that at sea we are the
strongest; and it follows that we must mainly if
not alone rely for our defence upon the power of
waging war effectually at sea. Equally does it
follow that we must rely upon this mainly if not
alone for our tranquillity, which is in these days
more than ever dependent upon the knowledge
that we are armed and able to keep our own.
And it follows above all, that if we content our-
selves with the power of waging this war other-
7
wise than effectually, our seeming defence is a real
snare, and we the present sport and future victims
of a fatal hallucination.
The subjects with which I propose to deal appear
naturally to range themselves under two heads——
first, there is the general question as to the true
nature and the lawful methods of Maritime War-
fare, as they are shown by Reason, by the Law of
Nations, the consent of the Publicists and the
practice of States; and secondly, the especial posi--
tion of Great Britain at this time with regard to
Maritime Warfare. I divide this book therefore
into two parts, of which the first is a chapter of
International Law and the second a chapter on
National Policy.
PART I.
I LAY down the following propositions, which I
shall proceed to consider seriatim:
I.-—That war can only be waged effectually at
sea by the capture of the enemy’s property.
II.-—That by the Law of Nations every State
when at war has the right to capture its enemy’s
property at sea, of whatever nature it be, and in
whatever vessels it is found.
III.—That every State has also a right by the
Law of Nations to arm and commission private
vessels as an auxiliary to its naval force, and to the
effectual development of the whole fighting power
of the State.
IV.—That the exercise of the right of seizure
and confiscation, whether by State vessels or com-
missioned private vessels, while it is the most
effectual, is the mildest and least cruel of all
methods of making war.
PROPOSITION I.——THAT WAR CAN ONLY BE WAGED
EFFECTUALLY AT SEA BY THE CAPTURE or THE
ENEMY’s PROPERTY.
Warfare in its practice consists in doing as much
material injury to the enemy as is necessary to
reduce him to submission. It is effectual in
9
proportion to the injury done to him. If no injury be
done by it, it is absolutely ineffectual.
On land the injury is effected by invading the
enemy’s country, by capturing towns and cities,
and occupying provinces, by seizing and destroying
property whether public or private, by cutting off
or appropriating the taxes, and by thus depriving
the Government of the enemy of the resources,
whether of men, of mate’rz'el, or of money, on which
it must rely for resistance, and bringing it to that
point of exhaustion when it will have no resource
but submission. The destruction of men in battle
is but a means to this end; for the object of war is’
not to depopulate a nation but to reduce its
Government to submission, and no victories in the
field, no feats of arms, are of any avail whatever
except in so far as they tend to bring about this
result.
On the high seas there is no enemy’s country to
invade, there are no towns to capture, no provinces
to occupy, and no possibility therefore of injuring
the enemy by any of these methods. But there is
property to capture, property of the most valuable
kind and in the most convenient form, and the
capture of which is certain therefore to inflict a
very serious material injury upon the enemy, and
thus to diminish his resources for carrying on the
war. Just as victories in the field are barren or
even injurious to the victor if they produce no
effect on the enemy’s material resources, so also
10
are naval victories barren or even injurious if they
leave these unaffected. And as the material
resources of the enemy on the high seas consist
solely in the property that is found in course of
transport thereon for his supply and succour, if
this property be left to go free no material injury
whatever can be there inflicted upon him. The
bombardment or capture of fortresses and towns,
or the disembarkation of troops, on an enemy’s
coast, is of course another matter ; but this is not
properly maritime warfare at all, but land warfare,
proceeding by the same methods and having the
same material results as the ordinary operations of
that warfare, and it is precisely because it produces
material results that it is efficacious.
A system of warfare on land, if any such could
be conceived, which should aifeet the armies alone
of the enemy, and which should at the same time
leave his territory and property unaffected, would
be absolutely ineffectual; and this is the case with
any kind of maritime warfare that does not propose
and include the capture of property at sea.
Without this, the blockade of a port amounts to
no more than the massing of troops on a frontier,
a naval victory to nothing more than a barren
boast, the supremacy of the seas to nothing more
than a phrase, a vain exhibition of force incapable
of being used to the injury of the enemy. But if
property be captured then is the enemy invaded
in reality, then the subject suffers, the taxes fail,
11
the material resources are diminished, the injury
in short is inflicted and the war is effectual.
That a nation at war has the right to seize its
enemy’s property, arising from and founded upon
the state of war, has never been questioned.
There are those indeed who would have this
right altogether abandoned at sea, who claim
that war shall exist between‘ two nations on land
but not for their merchants at sea; that requisitions
of property, nay that the capture of whole towns
and cities and the destruction of whole armies shall
be lawful on one element, and that, nevertheless,
every bale of goods shall be sacred on the other;
who hold that private property is more sacred than
private life, and that the money a subject pays in
taxation is in some sense less his private property
than the goods he sends to sea on an adventure.
Those who advocate this view argue that peace-
able traders should not be prevented from carrying
on their trade at any time; as though the trader
over seas were in some way less a native of his
own country and less bound to render it assistance
and to bear its burdens in its extremity than the
rest of his fellow-countrymen. They are not
ashamed to claim that taxes shall be levied on
the nation at large, that many thousands of its
inhabitants shall be sent forth to give their lives
in battle, and that the merchant alone shall never-
theless be neutralized and enabled to make even
larger profits than in the time of peace he does, by
12
the very event of the war. The merchant, how-
ever, is entitled to and can claim no better or
other treatment than the rest of his countrymen.
When his Government declares war he is at war
together with all his fellows of the nation; and
whatever be the individual sacrifices necessary for
the national success in the war, he is bound to
make them as much as anybody else. And
if it be true, that war can only be effectual
at sea when it is directed to the seizure and
confiscation of property, what shall we say of
those who, professing to speak for “civilization,”
claim that their country should give up the power
of capture from the enemy in order that they may
be protected from capture by the enemy?
If the merchant is to claim exemption from the
war for his goods on the seas, every taxpayer may
equally claim it for the money in his pocket; nay,
the very soldier may claim it for his life. For the
answer to each one of any such claimants is the
same--—that they belong to and owe aid to their
country; that they must in its extremity make
such sacrifices, each in his degree, as are necessary;
and that the incidence of the war must be borne,
whether it falls on the private goods of the
merchant, on the private money of the taxpayer, or
on the private life of the soldier. Each of them
belongs to and forms part of the nation, and none
of them can refuse to the nation the especial
sacrifice which the necessities of the war may call
13
for. If one must give his goods, the other his
money, and the third his life, it is but in order that
the goods, the money, and the lives of the rest of
their fellow-citizens may be secured to them.
Such sacrifices in such a cause no good citizen
can refuse without abjuring his citizenship, and
those who set up a claim to be personally at peace
while they are nationally at War, do in effect claim
to go out from their country and not to be of it.
If those who make this monstrous claim would
or could abolish war altogether, it would be
well; but until that is done, those who claim
that a special class of citizens should be speci-
ally exempted from the burdens of a war in
which their country is engaged, perhaps for its
very existence, must be held as preferring the
personal profit of individuals to the common
weal.
But the absurdity of this suggestion—for the
common sense of mankind has hitherto prevented
it from becoming anything more—that “private
property” should be “respected” at sea cannot be
more strongly shown than by the light of the
practice of warfare on land. The same principle
of treatment applies to both, for it springs from
and is built exclusively upon the existence of the
declaration of war, the effect of which is to declare
enemies the whole of the subjects of the enemy’s
nation, and all their property confiscate. It
renders lawful, strictly speaking, the killing of
14
all those subjects, and the capture of all their
property, whether on land or on sea. In practice,
indeed, there is far less hardship inflicted by
capture at sea than on land. For at sea the pro-
perty is more concentrated ; it is found in cargoes
necessarily of value; is the property of individuals
necessarily possessing capital; is in charge neces-
sarily of robust men, and is not immediately
essential to the maintenance of their existence.
On land matters are very different. Property
there consists of the poor man’s field and cattle,
of his little store and his few utensils, even
more often than of the broad lands and plentiful
store of the rich; and those found in charge are
often, if not generally, old men, women and chil-
dren. It is manifest, therefore, that in any case
it is not possible to inflict so much hardship by
seizing or capturing private property at sea as by
occupying it or capturing it on land. Nevertheless
it is claimed that it shall be respected at sea, while
it is not respected on land. On land, indeed, war
not only never has been, but never can be, made
on the principle of respecting private property.
For it is impossible to march an army without
violating private property, without traversing
private fields, forcibly occupying private houses,
and forcibly appropriating private forage and
provisions. Nay, no Government can make war
at all except by taking its own subject’s private
property in the shape of taxes. Wars are waged
15
by taking private men from their homes, and
making them fight public battles, and by taking
private earnings from those who remain in order
to support those who go forth. Battles are not
fought by ministers, or even by Governments, but
by private monies and men, diverted, without any
“respect,” from private purposes to public uses ;
and since even the life of the soldier is his private
life, it is apparent that there neither is nor can be
any method whatever of reaching public property
except through private, or of acting on Govern-
ments and Nations except through individuals.
Warfare in short can nowhere touch property
in any way without touching the private man.
And not only is it private property and private
life which feed the war while it exists; it is
also private property which pays the ransom
when it is over. When a country is conquered, its
Government is conquered, and therewith the control
over all the private property in the country ; and
thus it was that, at the end of the F ranco-German
War, the means was acquired of drawing from
France a ransom of two hundred millions, every
sou of which was private property. This being so,
it is apparent that no “private property” belonging
to individual citizens of a nation at war can claim
or receive respect from their national enemy; and
it is still more apparent that it cannot claim it at
sea where the hardship is least, since it never
obtains it on land where the hardship is greatest.
16
But even those who argue that “private property”
at sea should be specially exempted, as none other
is, from the effects of the war, do not deny that to
subject it to those effects is an effectual method of
making war. Neither has any Government ever
been found to accept, still less to act upon, the
proposition that property shall be exempt from
capture. Reason indeed shows, and experience
has proved, that unless property be made the
primary object of maritime warfare, there can be
no maritime warfare at all. The instances of the
Russian and of the Franco-Prussian War, which
were carried on upon the principle of not making
it an object, are sufficient to prove this; while
the American Civil War equally proves that seizure
and confiscation of property at sea do inevitably
draw with them also war at sea. The reason is
plain. War on land cannot be declined. It
must and can only come in the form of an armed
invasion of territory which cannot but be resisted,
for not to resist this is to accept national extinc-
tion. But if “private property” be held sacred,
and public vessels alone be regarded as proper
objects for the exercise of the rights of war, war
at sea may be declined. Any Power fighting with
another and conscious of naval inferiority may, as
Russia did in 1854 and as Prussia did in 1870,
keep its vessels safely in its ports, under the guns
of forts, behind torpedoes and out of the reach of
any but a land force. The greater the infe-
l7
riority, the greater of course is the determination
not to risk an encounter. This, it may be said,
goes to prove that all naval warfare is impossible
except between two States equal in maritime power,
and that it is especially impossible for any State
which, like Great Britain at the present time,
is superior in line-of-battle ships to any other
nation. And this indeed is true unless there exist
means of forcing the enemy to come out and fight;
this has been true in the cases quoted because
those means were not employed. For they do
exist, and they consist simply in laying hands upon
such property of the enemy as may be found afloat.
Then indeed there is a reason, and an imperative
reason, for the adventure to sea even of an inferior
naval force; for then it becomes a question of
money, a question in other words of retaining the
power to carry on war in any form. Then the
naval supremacy of a State amounts to something,
for it amounts to the power of stopping supplies to
the enemy from the whole World beyond sea,
while at the same time it provides supplies for the
state itself, under the sure protection of its
superiority at sea ; or if the supremacy be doubted
or denied, it forces the enemy to come out and
to fight in the defence of his sinews of war, and
makes maritime war a reality indeed.
But now if private property be exempted on
the seas from the incidence of the general con-
fiscation pronounced by the declaration of war
2
18
against all the property of the enemy, what remains
of maritime warfare? The object of cruising
vanishes, for there is nothing to cruise for that
can be touched when it is found. The whole
utility of the right of blockade, together with the
possibility of cruising, equally vanishes, for the whole
and sole object of blockade is to prevent the enemy
from receiving through the blockaded ports that
assistance which he derives from the introduction
into and the issue from them of “ private property ;”
the power of intercepting even contraband of war
vanishes also, for the contraband of war is private
property and cannot be touched. The power
indeed of landing expeditions on an enemy’s coast
is retained, but this is not maritime warfare, it is
merely the transport of forces for land warfare.
Of maritime warfare, properly so called, there
remains indeed nothing whatever beyond and
excepting the possibility of engagements between
fleets. But this is precisely the form of conflict
which the weaker power, as is evident, and as
Russia and Prussia have already proved in fact,
will carefully avoid. There is no commerce to
protect, no blockades to raise, “private property”
is inviolable, and the commerce, which is so valu-
able and so necessary that any effort must be
made to protect it, requires no effort at all ‘since it
protects itself. For there is nothing to fight for
except glory, and no reasonable prospect of gaining
any glory by fighting, but quite the reverse.
19
No naval commander not insane would risk a
conflict under such circumstances in so utter an
absence of any object, and he would keep fast in
port viewing with compassion rather than respect
his stronger enemy, who might scour the seas
declaring that he ruled them, but could neither do
any injury nor produce any effect whatever upon
the issue of the war. The effect of all which must
be that the stronger a nation at sea, the less oppor-
tunity would it have of putting forth its strength,
and that the larger its fleet, the more certain
would it be that that fleet would be reduced to the
most helpless and utter inaction. In short, to
affect to wage war at sea without capturing pro-
perty is to wage no war at all, and to make of the
strongest fleet the least effectual arm—for the
stronger it proved and was known to be the less
possibility would be afforded to it of using its
strength.
Of what avail can it be that the flag of any State
is found in every sea all over the world with no
other to challenge it, if from every sea all over the
world the enemy of that State is nevertheless
allowed freely to draw supplies with which to
carry on the war. Of what avail is it to possess a
navy that finds no adversaries? Of what avail
to make war at sea at all unless by it an injury
is inflicted upon the adversary?
The question is answered as soon as stated.
No publicist or statesman who has ever seriously
2 “li-
20
considered what war is, has ever been so foolish
as to propose that property either public or private
should be exempt at sea any more than on land
from the effects of the war. It always has been,
it still is universally admitted that in war the
property of a belligerent is liable to capture at sea by
the other belligerent, and those alone have
questioned it who assume to condemn war alto-
gether, and thus stand altogether outside of the
question, which is how war is to be carried on
assuming that it exists. But although the prin-
ciple is, as it must be, admitted being beyond
all dispute, a device has been contrived by which
the principle is denied in practice and made of no
effect. It is indeed this device alone which
requires any extended consideration, for While it is
abundantly clear that without the capture of pro-
perty on the seas there can be no maritime warfare
at all, it is also universally admitted that in time
of war belligerent property is liable to capture on
the seas as on the land.
PROPOSITION IL—TEAT RY THE LAW or NATIONS
EVERY STATE WHEN AT WAR HAS THE RIGHT
To CAPTURE ITS ENEMY’s PROPERTY AT SEA
0E WHATEVER NATURE IT BE, AND IN WHAT-
EVER VEssELs IT BE FOUND.
When a presumptuous Swiss banker affirmed at
the Geneva Tribunal for the settlement of the
21
Alabama claims, “that there was no such thing as
international law,” he uttered an impertinence as
great as he would be guilty of who, seeing that
many murders are committed, should say that the
law of homicide does not exist. The law of nations
does exist, it is the law of Nature, of Reason,
and of Justice applied to the dealings of nation
with nation; it is admitted to exist by the very
fact that every Government, even when in flagrant
act of aggression, claims to be acting on the dictates
of nature and of justice; and it is to be found in
the writings of the great publicists, and in the
lawful practice of nations ; precisely as the rule
of upright life is to be found in the common law
of every country, and the practice of its citizens.
Now the law of nations allows war for the
resistance of aggression and the prosecution of a
right, at sea as well as on land, and it con-
sequently must and does allow the effectual pro-
secution of that war by the infliction of injury on
the enemy through the capture of his property.
For it allows the destruction of life and cannot
therefore but allow the capture of property. If it
allows the taking of life it must allow the taking
of property. Nor has there ever been, nor is
there any dispute that it does allow this. But
the point to be observed is this-—-that unless a
belligerent may take his enemy’s property out of
neutral as well as hostile vessels he is practically
debarred from taking it at all, since his enemy can,
:22
and for the sake of avoiding risk undoubtedly will,
ship his goods under the neutral flag as long as
the war lasts. When this is remembered the
importance of the point becomes at once apparent.
Let us first examine the reason of the matter,
next consult the authorities upon it, and finally
ascertain what the practice has been with regard
to it.
The reason of the matter is thisz—A nation
when at war has the right to injure its enemy,
both in his person and in his property, wherever
it can find him, and those only can contest this
who contest the right to go to war at all. A belli-
gerent therefore has the right to inflict injury by
capturing his enemy’s property, for he has the
right to inflict it by taking his enemy’s life. But
while this is admitted, it is said that the neutral
has a conflicting right, the right, namely, to carry
on his commerce as freely as he is accustomed to
do in time of peace.
\Vith this neutral right it is said the belligerent
must not interfere any more than the neutral must
interfere with the right of the belligerent. And,
moreover, it is argued, the belligerent cannot inter-
fere with it since a neutral ship is held to be
neutral territory which cannot be violated.
N ow if it were true that there were two rights,
and if they conflicted as is said, there can be no
doubt as to which of the two should have the pre-
ponderance. The belligerent has his existence, for
'23
that is the final stake in war, to defend; upon the
exercise'of his powers of offence depends his power
to defend it, and just in proportion as he is shorn
of these so is he brought near to destruction. Not
so the neutral. He is secure since no man assails
him; if his right be touched, nay, if it be over-
thrown altogether, no harm can come to him
beyond a temporary loss - of profit ending with
the war which, if it be so, occasions it. And if it
were true that a nation defending its existence by
the exercise of a right must by exercising it cause
a temporary diminution in the profits of a nation
in no peril of its existence, the law of Reason and
of Nature must allow and sanction the injury.
But the argument does not rest upon this ground.
It rests upon the very nature of neutrality itself.
Neutrality consists in standing utterly aloof from
taking any part whatever in a struggle between
belligerents. It consists not in impartiality in the
conflict but in abstention from it; and this shows
us at once that a neutral cannot have any rights at
all as a neutral; for no rights can accrue to him
out of a conflict with which he has nothing to do.
He retains the common rights that all nations
have in time of peace; he neither does nor can
gain any new rights ; but he has also, arising out
of the war, the obligation of his neutrality which
lies in this, that he must now exercise his common
rights so as not to take any part in the war. He
has no new rights, but he has a new duty, that of
24v
complete abstention from the conflict, and unless
he fulfils that duty he ceases to be neutral.
It is undoubtedly true that the existence of war
brings with it certain grave inconveniences to the
neutral State, such as before it was not exposed to.
It is debarred from entering blockaded ports, it is
debarred from free-trade in war materials, and it is
held bound to exercise a diligent Watch over its
subjects to prevent them from taking active share
in the war. These inconveniences and this duty
are entirely new, and arise solely out of the state
of war; yet by universal consent and practice, as
Well as by reason and justice, they are sanctioned
and declared to be inevitable accompaniments of
war. The rights of a State fighting for national
existence are by them admitted and declared to be
superior to the convenience of a State trading for
individual profit, and no voice has ever yet been
raised to claim that, in the instances cited, the
convenience of the neutral should be preferred to
the rights of the belligerent. The principle is
therefore clear, that when a war arises even the
common rights of the neutral are subject to limi-
tation in their exercise so far as that limitation has
now become necessary from the new state of things,
in order to secure that the neutral shall be neutral
and shall abstain from the war. ‘
But while in the cases cited the limitations of the
neutral’s common right in ordinary times has been
admitted, accepted and established in all times, a
25
claim has nevertheless been set up that in one
respect, and that the most important, his common
right shall be, not merely exempt from limitation,
but that by the very event of war which limits all
others this shall be exaggerated and receive new
and greater proportions than ever before it had.
It is conceded that by the event of war, the neutral
is bound by new duties with regard to his own
commerce; but it is contended that he acquires
new rights with regard to the commerce of the
belligerents. It is allowed that he is bound hence—
forth to place new limitations on his own trade,
but it is alleged that he is entitled to enjoy new
privileges in the trade of the belligerents. It is
admitted that he has no right to protect his own
subjects or their property from the lawful opera-
tions of the war, but it is pretended that he has a
right to protect the property of one belligerent
against the other.
To this and to no less amounts the claim which
has been raised, that a neutral has the right to
carry belligerent property over the seas in time of
war, and to secure it from capture by the cover of
his flag. The question at once arises, whether
this is in consonance with the duties of neutrality?
A moment’s reflection will show that it is a fla--
grant violation of them. \
For it is a claim to extend to property of one or
of both belligerents a protection which the belli-
gerent cannot provide himself. It is a claim to
26
give to neutral hunting a force not found in belli-
gerent arms. It is a claim not to continue the
exercise of the general right to trade peaceably,
which existed before the war, but to protect and
to transmit property liable to the effects of the
war. It is a claim to a traffic which did not exist
before the war and which is only made possible by
it. It is a claim to withdraw belligerent property
from belligerent risks for neutral profit. It is a
claim, in short, to protect the most vulnerable part
of one or of both belligerents, and therefore to
take part in the war, which is the negation of all
neutrality.
The right of a neutral to trade with a belligerent
though it has sometimes been denied, cannot be
contested, his right to security against injury in
his own property other than contraband of war,
even when taken to or brought from a belligerent
port not blockaded, is not to be impugned. But
that is very different from the claim set up that he
shall be allowed to cover with his flag property
not his own, but that of a belligerent. In such
property he has no interest whatever beyond the
freight he earns for carrying it. It is in its nature
undoubtedly and beyond all question liable to
confiscation by the other belligerent, and the
neutral if he be honest in his neutrality, can have
no desire to relieve it from its natural liabilities.
The case of contraband of war and the unques--
tioned rules applying to that, show clearly the
27
principle applicable to this. Thus no neutral is
allowed to protect from capture by his flag arms,
ammunition, or contraband of war in general, when
destined to a belligerent, not even if at the time
of capture they be bond fide his own property.
How then is it to be supposed that he can justly
claim to be allowed to protect belligerent pro-
perty? Contraband of war destined to a belli-
gerent is no more liable in its nature to confis-
cation than property belonging to the belligerent;
so long as it is in the neutral country it is not
contraband at all, and it only becomes so on the
high seas from the fact of its being in transport to
the belligerent. It is the carrying to the bellige-
rent destination, and the carryingalone that’gives
the contraband character to what would be free and
innocent had it remained in the neutral territory.*
Yet contraband of war even when the property of
the neutral is left to confiscation without any
attempt at protection whenever it is intercepted by
the other belligerent in neutral vessels. How much
more then must belligerent property be so left-
If contraband of war, which is only confiscable by
reason of the incident of transport, be liable to
3*‘ Sur un territoire neutre il n’y a pas de marchandises de
contrebande; toutes y sont libres. Elles ne deviennent con-
trebandes qu’ou moment oil elles en sortent avec direction
pour un lieu dont leur nature les exclu .” Massé. Le D'rot't
Commercial clans ses rapports aoec Ze droit des Gens. See also
Lampredi, Wheaton, Ortolan, and Heffter, and Pratt On
Contraband.
28
capture, how much more must belligerent property
which is confiscable by its very nature be so. The
state of war gives the belligerent the right to cap-
ture contraband of war destined to his enemy; the
state of war gives him an equal right to capture
property belonging to his enemy; one right is as
undoubted as the other; it rests upon the same
principle and is justified by the same sanctions.
How can the neutral admit the exercise of the one
even when it deprives his own subjects of their
property and resist the other when it touches pro-
perty in which he has no interest? He may indeed
permit his subjects to carry on both kinds of traffie,
but if he is precluded from protecting them in the
one kind when intercepted, he is equally precluded
from protecting them in the other. He may permit
both kinds of traffic to be carried on under his
flag, but he cannot assume to protect either by his
flag from the exercise by the belligerent of his
right to confiscate whenever he can intercept. To
do this is to give aid to the belligerent, it is to
cease neutrality and begin belligerency.
It is no answer to say that the neutral is ready
to do the same by both sides; for he is bound to
do it by neither. His duty is completely to
abstain. And it has never been disputed in prin-
ciple that the belligerent has the right to claim
such complete abstention even if the claim amount
to one of interference with the usual trade of
the neutral himself.
29
But except in the case, impossible to suppose, that
both belligerents are exactly equal in maritime
strength in all waters, the neutral cannot give an
equal advantage to each by carrying and covering
the trade of both. \Vhenever and wherever the
belligerents are unequally matched on the seas, the
stronger of the two is able at once to carry his own
trade, and to prevent the other from carrying his.
Not only does reason prove that this must be, but
history shows that it is so?‘ And it follows there-
fore that so far fi'om a neutral giving equal aid to
both belligerents by carrying their property and
protecting it from capture, he gives the greatest
possible aid to the weaker, and inflicts the greatest
possible injury upon the stronger of the two. He
gives to the weaker protection to his weakness; he
debars the stronger from the exercise of his
strength. In other words he ceases to be the
neutral, and takes up“ a direct part in the war.
He steps in to prevent one of the two belligerents
from being reduced to extremity, and thus prolongs
=1‘ In January 1799, during the war between England and
France, the French Directory informed the Oonsul des Oinq
Cents :—'-“ It est malheursement trop vrai qu’il n’y a pas
us seul vaisseau marchand naviguant sons pavillon frangais—
quel autre moyen d’exportation avons nous, que l’emploi des
vaisseaux neutres.”——Oocle des Prises, Tom. II., p. 385. See
too appendix to Robinson’s Admiralty Reports, p. 378, vol. 2.
Again in 1805-“ There was not a hostile mercantile flag, a
few coasters excepted, to be found on the ocean.”——War in
Disguise, pp. 71 and 229.
30
the war, so that if this neutral claim were allowable,
war might be made interminable by the mere act
and for the mere profit of States which are bound
to take no part in it.
The fiction of a vessel being a part of the State
to which she belongs has been sometimes raised
here to bar the right of the belligerent to capture.
To this scarcely serious argument it would be
enough to reply that if a neutral ship be in
all respects a part of a neutral State, and
entitled to the same inviolability, yet at any rate it
cannot be entitled to more respect or to greater
privileges than the territory of which it is assumed
to be a continuation. Nevertheless here we have
much more claimed for it; for it actually carries the
property liable to capture from one part of the
world to another, which the State itself does not
and cannot do. Belligerent property is doubtless
safe in neutral territory, as well it may be, since it
is dormant and far from the hand of the belli—
gerent, and being in neutral territory brings no
increase of power to him. Yet it is none the loss
under the general sentence of confiscation pro-
nounced by the declaration of war, it is only that
the execution of that sentence is stayed so long as
the property is as it were asleep. But the instant
it is brought into activity by passing the neutral
frontier line, the sentence at once takes effect, and
the property becomes immediately confiscable. The
neutral State merely holds condemned property in
31
trust for the belligerent owner; but the neutral
ship carries it to that owner. As long as it is in
the neutral State it is necessarily dormant, and of
no moment; but as soon as it begins to traverse
the high seas in the neutral ship it becomes active
and of great moment. The claim of the neutral
that his territory shall protect from immediate
capture condemned property which is separated
from the belligerent is good; but it is a far
, different and greater thing to claim that the
neutral ship shall carry that property to the
belligerent, to be by him employed to recruit his
strength for the war. If, therefore, it be that
neutral ships are neutral territory, the question is
not thereby ‘concluded but still remains, for it
cannot be contended that it is more than territory
or entitled to more than territorial immunities.
But the fiction has never held so much water.
The ship is liable, which the State is not, to be
visited and searched, and to have captured in her,
which the State is not, contraband of war, even
of neutral ownership. All practice, therefore, as
well as all reason, shows that neutral vessels
sailing on the high seas are not a part of a neutral I
state standing on the firm land, in any sense which
entitles them to do that which the firm land
cannot do.
So much for the principle. Let us now see
what has been laid down as the rule of inter-
national law by the great publicists. The oldest
32
authority on the Laws of Maritime \Var is the
Consolato del Mare, a code which was of recog-
nized authority so early as the end of the eleventh
century, and which was received and adopted from
the Baltic to Constantinople. The rule there laid
down is this, “If an armed ship or cruiser meets
“with a merchant vessel belonging to an enemy
“ and carrying a cargo the property of an enemy,
“ common sense will sufficiently point out what is
“to be done, it is therefore unnecessary to lay
“ down any rules for such a case.”
“ If the captured vessel is neutral property and
“the cargo the property of enemies, the captor
“may compel the merchant vessel to carry the
“ enemy’s cargo to a place of safety, where the
“ prize may be secure from all danger of recapture;
“ paying to the vessel the whole freight which it
“ would have earned at her delivering port.”*
Grotius, that great and wise Dutchman, who has
been called the Father of International Law, and
who certainly was the first who reduced it to
the form of a Science, wrote in the beginning of
the 17th century. He adopted the Consolato del
Marc, and transcribed the passage relating to this
point ff and although he does not argue the point
out, for no pretensions contrary to the law of the
Consulate had in his times seen raised, yet there
can be no doubt how he would have decided upon
i“ Consolato del Mare, cap. 273. Robinson’s translation.
1' De Jure Belle’ ac Pacts. Book III. -1, 5, and note to § 3.
33
it, for he leaves it an open point whether a
belligerent may not prohibit a neutral from carry-.
ing his own property to the belligerent, which is
to go much further than the prohibition to carry
the property of the belligerent. Albericus Gentilis,
the Dutch Voetiusfl“ the English Zouch,1' the
Swedish Loccenius,jt all equally accept the prin-
ciple that enemy’s property is enemy’s property,
wherever found on the high seas. Puffendorff§
refers to Grotius on the question, and like him
admits“ that it may be allowable for a belligerent
to prohibit not merely neutral carrying but all
neutral trade with the other belligerents. Byn~
kershoek, a Dutch publicist who wrote at the
beginning of the 18th century, and Heineccius, a
Prussian, his contemporary, were the first who
found such a notion raised as that neutral ships
could protect enemy’s, and they both contemptu-
ously repudiate and denounce itfil “ Why do you
doubt?” asks the former of the two, and “Nobody
doubts,” replies the latter.
Thus it appears that from the eleventh to the
middle of the eighteenth century there was no
* De jure militari, cap. 5, n. 21.
1‘ De Jud. inter Geutes, p. 2, s. 8, n. 6.
1 De Jure maritimo, 2, 4!, 12.
§ Droit des Geus, L. VIII, 0. 6, and note.
|| Barbeyrac, Law of Nature and of Nations, I1. VIII, 0. 6.
1T Bynkershoek, Quest. Jur. Pub. cap. xiv. Heineocius, de
N cwibus ob vecturam 'vetilarum mercium commiss : cap. 2.
3
34
doubt or question as to this matter. Neither was
such a claim as that of neutrals to carry enemy’s
property ever raised till 1752, when it was first
advanced by the King of Prussia in a memorial to
the Duke of Newcastle, whose answer* drawn up
by four publicists, Lord Mansfield, Sir G. Lee,
Dr. Paul, and Sir Dudley Ryder, is held by
Montesquieu]L as an “unanswerable reply,” and
by Vattel to have thoroughly established the
position contended for.I The King of Prussia
accordingly at once abandoned his contention, and
did not carry out the threat which had accom-
panied it. Vattel and Montesquieu, as we have
seen, pronounced against him, and Vattel, facing
the whole question, declares that “if We find an
enemy’s effects on board a neutral ship we seize
them by the rights of war.Ӥ
Against this array of great names there are to
be set on the other side, Hiibner, a Dane, who
had been employed by his own Government to
endeavour to obtain an alteration in the law, and
who wrote for that particular purpose, as an advo-
cate would, and Schlegel his disciple, both of
whom have been utterly overthrown both as rea-
it,lThe Duke of Newcastle’s Letter to M. Michell, the King
of Prussia’s Secretary to the Embassy. London, 1753.
1- Lettre 415 at Z’Abbe' Guasco.
I Droit ales Gene, Book II, cap. VII, 84:, p. 166, in Ohitty’s
translation. ‘ _
§ Droit tles Gene, Book III, cap. vii, 115.
35
soners and as authorities by \Vard,* by Lord
Liverpoolfl‘ by Lampredi, and later by Manningj;
But from this time when the novel claim was first
raised, there begins a new set of authorities who
now the first of all publicists being challenged to
examine it, all asserted and justified the old rule.
Moser, a Dane,§ Lampredi, and Azuni,[| Italiansfll
Chancellor Kent,Ms \Vheatonn‘t Phillimoreji and
Reddie,§§ in their writings, Sir William Scott (Lord
Stowell) and the Admiralty courts by their decisions
have exhausted the question; and on the other side
we find only such men as De Martens and Kliiber,
De Rayneval and Ortolan (the last with much hesita-
tion) who neither exhaust nor argue it, but merely
lay down as an arbitrary rule one contrary to
if Treatise of the relative rights and duties of belligerents
and neutral powers.
1" Discourse on the conduct of Great Britain, 1759.
I Commentaries on the Laws of Nations, pp. 200, 233, 235.
§ Moser, Versuch B. XX, cap. ii, pp. 33, 341.
H Droit Maritime de l’E'urope, cap. iii.
1T Du commerce cles Neutres.—Lampredi’s adhesion to and
assertion of the right as in conformity with the law of nations
is the more remarkable because he avows that his great desire
is to see the principle of “ free ships free goods” established.
His treatise, is very valuable as being a collect-ion and sum-
mary of all the arguments used by preceding publicists—the
same remarks apply to Azuni.
5”‘ Kent’s Commentaries, I, 126, 131.
*1’ Elements of International Law, 162, 183.
II Commentaries on International Law, Vol. II, § 9.
§§ Researches, historical and critical, in ZVIaritime Inter-
national Law, Vol. I, p. 463.
36
all reason precedent and authority. There is indeed
one writer who in very recent times (1868) has
undertaken to argue that the “primitive law,” or
in other words the law of Nature and of Justice
Which is the law of nations, either does or should
forbid the capture of enemy’s property in neutral
vessels. This writer is M. Hautefeuille, and it
has been reserved to him to show that the prin-
ciple of "free ships make free goods” for which he
contends, is one which was both originally invented
and is now advocated with the express and only
purpose of putting an end to the maritime power of
Great Britain. His work is a series of indecent and
frenzied attacks upon that country, and its avowed
purpose is to bring about a new and permanent
armed neutrality with the object equally avowed
of diminishing her power by enforcing the principle
for which he contends?‘ There could not possibly
be a better proof that M. Hautefeuille is aware of
the vital importance to a maritime country of this
i‘ “ Ses forces memes,” he says, speaking of England,
“quelques considérables qu’elles soient, viennent si briser
contre les droits des peuples neutres si ces peuples savent se
réunir pour le salut commun.” And he admits also that the
mere retention of the right to seize enemies’ goods is sufficient
to prevent their transport. “Le commerce,” he says, “ vit
de sécurité, le commerce de transport comme tous les autres ne
peut exister sans cette garantie. Du moment ou la propriété
ennemie n’est pas en sfireté a bord des navires neutres,
navires qui ne doivent pas meme se défendre contre le belli-
gérant, le commerce de transport est frappé de mort.”——Des
droits et des deco/{rs des Nations went-res.
37
question, nor a better proof that those who advo-
cate his views do, wittinglyi or not, advocate the
extinction of maritime power. His obj ect being so
impudently avowed his arguments might be
disregarded as those of a person rendered in-
capable by passion of treating such a subject.
Nevertheless, as he is the latest exponent of the
new doctrine it is Worth while to examine his
arguments. They are as follows :-—-
I. That a neutral merchant ship on the high seas
is neutral territory, and therefore a belligerent has
no jurisdiction over it, and consequently no power
of capturing goods in it?‘ II. That the aid and
succour given by a neutral to a belligerent in
carrying his goods, is only indirect, and therefore
is entitled to immunityrf III. That the sea being
* Le navire est une parcelle du territoire de la nation dont
il porte le pavillon; il conserve cette qualité partout où il se
trouve; à la pleine mer, sur cette route commune à tous les
peuples, mais indépendante des lois de tous les peuples, non-
seulement il conserve cette qualité, mais encore il la com-
munique à la parcelle de l’Océan sur laquelle il flotte. Le
navire acquiert à son pays, par une sorte de droit d’occupation,
la souveraineté de cet étroit espace; c’est l’appropriation mo-
mentanée d’un lieu libre—Des Droits et des Devoirs, cap. ii.,
p. 291.
1" J e sais que le belligérant a le droit de nuire à son ennemi
par tous les moyens possibles, par tous les moyens directs; ce
droit, il le tient de la loi divine; mais cette même loi lui défend
l’emploi de tous moyens indirects.
Le transport des propriétés ennemies n’a et ne peut avoir
aucune influence sur le sort des expéditions militaires, car il ne
s’agit ici ni de contrebande de guerre, ni de commerce avec un
38
free to all and the right to trade being an inherent
right in every nation, the neutral retains this right
in War as in peace, and must not have it dimi-
nishedf’à“ IV. That the Conventional Law of
Nations by repeated and common consent prohibits
the capture of eneiny’s goods in neutral ships]L
lieu bloqué, mais seulement des objets déclarés innocents par
la loi internationale.
Or, de même que le neutre souffre des conséquences indirects
de la guerre, par suite des devoirs qu’elle lui impose, et qu’il ne
peut pas s’en plaindre, lui qui est étranger au conflit; de
même le belligérant doit supporter, sans se plaindre, les con-
séquences indirectes de la neutralité et de l’exécution de ses
propres devoirs—Des Droits et (les Devoirs, Vol. ii., pp. 291,
292,37l,372,373.
3'‘ Le droit du neutre, c’est l’indépendance complète, c’est de
ne devoir obéissance et soumission à nul autre peuple, c’est la
liberté de faire tout ce qu’il veut, et par conséquent de com-
mercer selon sa volonté ou son caprice, avec l'un ou l’autre des
belligérants. C’est là son droit essentiel, le droit constitutif
de sa nationalité, le droit sans lequel le neutre ne peut plus
avoir la prétention de former un peuple—Des Droits et des
Devoirs, Vol. ii., p. 370.
1" Le droit secondaire n’a pas varié sur cette grave question
depuis deux siècles et demi, c’est-à—dire depuis que l’Europe a
commencé à sortir des ténèbres de la barbarie, depuis que le
commerce et la navigation, prenant des développements im-
portants, sont devenus des éléments indispensables de grandeur
et de la prospérité des États; en un mot, depuis le moment où
les divers peuples ont eu intérêt rechercher et à soutenir les
droits que Dieu lui—même leur a donnés sur l'Océan.
A cette longue série d’actes publics et solennels dans les-
quels ont figuré successivement, pendant plus de deux siècles,
toutes les puissances maritimes, en ne peut opposer, dans le
sens contraire, qu’un petit nombre de conventions, la plupart
conclues dans des circonstances qui, les rendant inégales, les
39
There is no difficulty in destroying these pro-
positions. I. The neutral ship is not neutral
territory in the sense here claimed for it. It is no
doubt treated as such by a fiction necessary for
the purpose of carrying upon it the jurisdiction of
the municipal laws of the State to which it belongs;
but as regards the international duties of that
State, it is submitted to conditions which already
prove that it is not “ a part of its territory.” It
is prohibited, for example, from having on board
arms and ammunitions of war destined to a belli-
gerent, which is not the case with the territory;
it is prohibited from entering duly blockaded
ports; and it is liable to be visited for the verifica-
tion of its papers and nationality, and of the
innocent nature of its cargo. No such authority
as is exercised over the neutral vessel can be
exercised over neutral territory. It is clear, there-
fore, that the merchant ship on the high seas
being subjected to treatment and laid under
conditions quite inadmissible in territory ashore
cannot claim to be such. But if it be, then I turn.
M. Hautefeuille’s argument against himself.
His argument is, that the neutral territory
afloat is entitled to all the respect and all the
immunities of the neutral territory ashore. If
frappent de nullité, ou du moins leur enlevent toute espece
d’autorité, et certainement s'opposent a ce qu’elles puissent
fonder une jurisprudence internationale.—Des Droits et (les
Devoirs, Vol. ii., pp. 308 and 299.
40
this were true it would follow that nothing more
can be claimed for the shore than can be claimed
for the ship. And it would follow that since the
ship is liable to search for, and to the confiscation
of contraband of war, the shore must be equally
liable, and that the belligerent has the right to
enter a neutral State in order to seize by force of
arms if necessary all articles contraband of war
that he may there discover. Either this is true,
or it is not true that the neutral ship is neutral
territory, entitled to the same immunity as the
soil of the State to which it belongs.
As to commerce by neutral vessels in contraband
of war M. Hautefeuille declares that it is properly
prohibited not as contraband, but “because the
“ fact of selling to combatants objects immediately
“ serviceable in the conflict is taking part in the
“hostilities and is a violation of one of the duties of .
“ neutrality.” If this be true, and if it be true
that the neutral vessel is neutral territory in the
complete sense, it follows that the belligerent has a
right to prevent the taking such part in hostilities,
and such violation of neutrality as well ashore, as
if‘ Si la contrebande de guerre est un commerce prohibé, ee
n’est pas parce que c’est un commerce, mais bien parce que le
fait de vendre a des combattants les objets immédiatement
propres au combat, est une immixtion aux hostilités, une
violation de l’un des devoirs de la neutralité, qui suffirait pour
faire considérer la nation qui l’a commise comme ennemie, et _
pour la traitereomme telle.—-—Des Droz'ts et des Devoz'rs, Vol. ii.,
p. 281.
4.1
at sea, and therewith has_also the right of visiting
neutral territory ashore as well as afloat. Those
who will not stand to this must abandon the fiction,
for it is nothing else, that a merchant vessel on
the high seas is neutral territory, and with it the
argument based upon it, that as such it is entitled
to protect belligerent commerce from capture.
IL—The argument that the aid and succour
given to a belligerent by carrying his commerce is
only “indirect,” and is therefore not a violation
of neutrality, if it is good for anything is good
to show that commerce in contraband of War is
also no violation of neutrality. For that also is
but an indirect assistance. ‘ Gunpowder, shot and
shell and cannons are in themselves of no avail
until they are in the hands of those who are to
dispose and to use them, and are by them so used
as to produce their eficeot; and the selling and car-
rying of them to a belligerent does no direct but
only an indirect injury to the other belligerent.
And it is easy to conceive cases in which the
assistance afforded to a belligerent by carrying
his goods and by procuring for him supplies of
money and of merchandize in exchange may be of
more effect in enabling him to continue the war
than even a supply of arms and ammunition.
M. Hautefeuille indeed has adroitly shrunk from
the task of defining what is “direct,” and what
“indirect” assistance to a belligerent; but the
definition and the distinction are broadly laid down
42
in the Law of Nations._ For a neutral Power to
despatch or permit to be despatched from its
shores an armed expedition against one of the
belligerents is to take a direct part in the war,
and this the neutral nation is bound to prevent
of its own proper action. But to despatch supplies
of arms and ammunition not accompanied by
those who are to use them, or to run a blockade,
is to give indirect assistance to the belligerent——
and these acts the neutral Power is not bound
to prevent, but it is bound to leave those of
its subjects who engage in them to be dealt
with by the belligerent against whom they are
directed. Here we see two kinds of “assistance,”
one which the neutral Power may and the other
which it may not lawfully permit its subjects to
give. The belligerent injured cannot however be
held and never has been held bound to submit to
either kind of participation in the war. In the
case of direct participation, he calls upon the
neutral Power to do its duty of prevention; in the
case of indirect participation he exercises his own
right of prevention by capture and of punishment
by confiscation. It is clear, therefore, that the
fact of participation in a war by the neutral being
‘indirect? does not render it lawful. M. Haute-
feuille is fond of drawing his arguments from a
consideration of man in his primitive state. Let
us suppose then two men armed with bows and
arrows fighting in coracles on the sea near the
43
shore. M. Hautefeuille allows that for a third man
in a third coracle to came off with a new bow or
a single arrow is a violation of neutrality ; but he
contends that if the third man instead of bringing
a bow brings food and restoratives to the com-
batant who exhausted by the want of these, and
unable to obtain them himself, is on the point of
surrender—this he declares is no violation of
neutrality, but only legitimate trade to be held
sacred. But let us try this doctrine of the lawful-
ness of indirect assistance a little further. Gold
is in itself of no direct use in warlike operations.
To supply it does not “ bear upon the forces imme-
“ diately destined to combat and exclusively
“ proper to war." It is, so far as war is concerned,
a mere representative of other things and a means
of acquiring them. To afford assistance therefore
by a gift of gold is to afford assistance of a
thoroughly indirect kind. Yet, if M. Hautefueille’s
argument proves anything, it proves that a neutral
may subsidise a belligerent for warlike purposes
to any extent without the slightest violation of
neutrality. Which is absurd.
III.—As to the right of a neutral to trade in
time of war, it is clear that he does not and cannot
enjoy it to the same full extent as if there were
no war. As a neutral he gains no new rights by
the war, but on the contrary is burdened with
new duties. He may no longer trade with either
belligerent in contraband of war; he may no longer
44.
trade at all with blockaded ports. It is clear
therefore that he no longer has “la liberté de
“ faire tout ce qu’il veut et par consequent de com-
“ mercer selon sa volonté ou son caprice avec
“ l’un ou l’autre des belligérants.” He had it
fully and completely in time of peace ; but he has
it in time of war subject to the new duty under
which he falls of absolute abstention from the
conflict. He had the right to trade in arms across
the seas with both belligerents; he has now the
duty to abstain from thus trading with either; he
had the right to trade to all ports; he now has the
duty to abstain from those which are blockaded.
He had the right to carry the merchandize of both
belligerents; he now has the duty'to abstain from
carrying that of either. In no one of the three
cases is there any invasion of his ancient right; in
all there is the enforcement of the same duty of
abstention from all that may affect the issue of the
struggle.
IV. M. Hautefeuille seeks to prove that the
conventional law of nations prohibits the capture
of enemy’s goods in neutral vessels, by the simple
method of declaring null and void all the numerous
conventions which have ever been made of a con-
trary‘effect. Thus he declares the Convention of
1801, “ entaché d’une nullité radicale ” as regards
Sweden, Denmark and Russia; and that the treaty
of 1795 between England and America is equally
void, because “unequal.” Passionate and 'biassed
45
as he is, however, he is nevertheless forced to record
many important conventions in which the ancient
and original principle is embodied. But, in fact,
the very existence of conventions stipulating that,
as between two given nations, free ships shall
make free goods, proves that by the common law
of nations that is not the case. For a consideration,
a right may be waived for the advantage of a
particular State, but that does not affect it with
regard to other States with whom no such waiver
has been made. And whatever Conventions may
exist or may ever have existed, they can only
prove that it has been held advisable to waive this
right in particular cases ; but they can never prove
that it has ceased to exist.
On a review of the whole matter, then I submit,
it is abundantly made clear that the Law of
Nations, as declared by the unanimous voice of its
most revered expounders, denies an'd repudiates
the claim set up by neutrals to withdraw from
capture enemy’s property at sea by the mere
display of their bunting. It is true that upon
many different occasions, and between many diffe-
rent countries particular treaties have been made
which allow the claim as between the parties ; but
these treaties do not make the law; on the contrary,
they modify it for a particular reason in a particular
case ; and the very fact of their existence (for other-
wise they would not have been necessary) proves
that the unmodified ‘law is such as it has been stated
46
to be, namely that any State when at war has the
right to capture its enemy’s property at sea, of
whatever nature it be, and in whatever vessels it is
found.
The exercise of this right has always been found
to give so tremendous a power over its enemy
to any nation possessed of the naval supremacy
essential to its full exercise, that those nations
whose power is on the land alone have always had
for an object, not indeed to deny the right—for that
would have involved the denial of the right of
capture on land-but so to limit it as to render it of
no avail. In the argument they had been, as to this
day they are, completely worsted; but if Reason
Was known to be thoroughly against them an
occasion arose when, as was thought, Force was
with them, and would enable them to impose by
arms the novel doctrines which they had failed to
establish by argument. In 1780 this attempt was
first openly made, with the avowed object of acting
against England, then at war with France, Spain
and the American Colonies. The Armed Neutrality
first solemnly asserted principles having this effect.
It was declared that although enemy’s property in
an enemy’s vessel shonld be liable to capture, yet
that enemy’s property in a neutral vessel should no
longer be so liable unless it were contraband of war
———that is of such a nature as to be adapted for
direct and immediate employment in warlike
operations, such as arms or ammunition.
47
The effect of this novel principle was, that while
it conceded the right of capture, it at the same time
destroyed it. For any nation at war with another
its superior at sea had but to ship its property in
neutral vessels in order to be enabled to carry on
with impunity that trade which the right of capture
would otherwise destroy, and to retain those sources
of revenue which would otherwise be stopped. The
injury in short capable of being inflicted by capture
at sea would thus have been reduced to a point of
insignificance, and the power of making effectual
war at sea would consequently have vanished. The
intention was too manifest to escape any observer,
the invasion of right too flagrant to be met with
aught but repudiation and resistance. And re-
pudiation and resistance were made with equal
effect. Sweden, Denmark, Prussia, Germany,
Holland, France, Spain, Portugal, Naples, and
the United States all joined with Russia in an
armed support of the doctrine ; but England stood
firm against all, and on the French revolutionary
war supervening Russia herself led the way back
to the old rule in a treaty with England which
solemnly reasserted the original Law.
In 1800 a seeond armed neutrality was formed
with the same object as its predecessor, but the
next year the attempt was again abandoned, and
the original Law again subscribed to by Russia its
originator in the Treaty of June 1801.
On the pretensions put forward by the Armed
48
Neutrality no better comment can be given than
the despatch in which (in 1798) the Government of
the United States vindicated the right of England
to take French property out of American vessels,
the exercise of which right France had requested
America to disallow. “The rights of England,”
said they, “ being neither diminished nor increased
“ by compact, remained precisely in their natural
“ state, which is to seize enemy’s property wher~
“ ever found, and this is the received and allowed
“ practice of all nations where no treaty has inter-
“ vened. The desire of establishing universally
“ the principle that neutral bottoms shall make
“neutral goods is perhaps felt by no nation on
“ earth more strongly than by the United States.
“ Perhaps no nation is more deeply interested in its
“ establishment; but the wish to establish a prin-
“ ciple is essentially different from a determination
“ that it is already established. The interests of
“the United States could not fail to produce the
“ wish; their duty forbids them them to indulge it
“ when decided on as mere right.”
America has acted upon these principles ever
since. She has even refused to join in the renewed
declaration of the principles of the Armed Neutrality
proposed to her so late as 1856. And yet America
has been claimed as the Power whose resistance to
thosevery principles which she asserts necessitated
that very Declaration which she rejects.
Much has been said, though little has been proved,
49
of the abuses to which the capture of property lead s.
It is alleged that the practice of this kind of warfare
renders naval oflicers and men greedy of gain, and
that it induces them to neglect enterprises of mere
fighting in order to engage in those which promise
prize-money. If this were so it would be in every
way a gain. It would be a gain to humanity that
the operations of war should be directed from men’s
bodies to their goods; it would be a gain to the
belligerent which would at once enrich itself and
distress its enemy ; and it would be a gain to the
officers and seamen who would thus be rewarded
for their toils by the enemy himself instead of
becoming chargeable for increased pay and pension
on their own countrymen.
But it is not true that the pursuit of prize has
ever been sufficiently powerful a motive to draw
offieers and men away from duties in which hard
knocks alone were to be given and received. It is
so little true that all the great naval actions that
have been fought have been fought by sailors trained
and practised to their trade in the pursuit of prize.ale
For indeed this is the very pursuit that makes
sailors; this was the very pursuit which during the
wars of the last and the beginning of the present
*‘ Between November, 1802, and November, 1811, nine
years in all, Sir William Parker captured, as captain of the
“Amazon,” no less than sixty vessels, which produced to him
as his own personal share of prize-money the sum of £35,211.
118 3d.——L2fe of Sir W’. Parker. Appendix.
4
50
century enabled English Commanders to make
excellent seamen out of the sweepings of gaols and
the rakings of the shore brought on board by the
press-gang in a frame of mind which would rather
have induced them to fight against than for their
country. And more than this, it is the one only
inducement that will suffice to draw sailors into a
navy in time of war, that will keep them in it, or
that will make them fight with any heart or spirit.
Even ashore it is found necessary to offer to the
soldier the allurernents of booty as well as the pro-
spect of increased pay and promotion; how much
more then is it necessary to allow prize to the
sailor, whose life is always in his hand, and who
has to contend with the elements as well as to do
battle with the enemy. Yet without the capture
of property there can be no prize, and without
prize there can hardly be any sailors, and certainly
there cannot be sailors of the stamp of those who
fought under Nelson, Howe, Rodney, and Dun-
donald.*
“I have seen it openly proclaimed that seamen will fight
“ for fighting’s sake, and without expectation of reward. If
“ the propounders of such an opinion were to ask themselves the
“ question whether they engage in professional or commercial
“ pursuits from mere patriotism, and Without hope of further
“ remuneration, then their reply would show them the fallacy
c‘ of ascribing to seamen a want of those motives which impel
“ all men to adventure and exertion. The result of my now
“ experience is that seamen fight from two leading motives :-
“ 1st, Prize-money. ‘2nd, From a well-grounded belief in their
“ own disciplinary experience, which refuses to be beaten, and
PRoPosITIoN III.——THAT EVERY STATE was A
RIGHT BY THE LAw or NATIONS To ARM AND
CoMMIssIoN PRIVATE VEssELs AS AN AUXILIARY
To ITs NAVAL FoRcE, AND THAT THE UsE or
THIs AUXILIARY FoRoE Is EssENTIAL To THE
FULL DEVELOPMENT or THE WHoLE FIGHTING-
PowER on THE COUNTRY.
That every State when at war has a right to
claim the aid of all its citizens in the prosecution of
the war is a principle so clear that it has never
been contested. It has indeed been carried so far
that the nations of the Continent claim and exercise
the right, not only when actually at war but when
at peace with all mankind, since by the system of
universal military service, which is now in many
countries established, they enrol all their citizens
in peace, and during peace train and prepare them
all for war. Since then the State thus compels its
citizens to give aid in war, there can be no doubt
that it has also the right to accept their aid when
voluntarily offered. This is the case with Priva~
teers, which are vessels provided, manned, and
armed by private individuals, furnished with a
commission by the Sovereign, and sent forth to
attack the enemy in his commerce.
“ is not satisfied with less than conquest. Take away the first
“ motive and we may find difficulty on an emergency in
“ getting men to accomplish the second.”——Lorcl Dunclonalcl’s
Autobiography, vol. 1., p. 54. 4 9k
52
Though the right to send forth Privateers has
never been contested, yet the propriety of exer-
cising it has nevertheless been questioned, on
several grounds, which it is proposed here to
examine. In order to make the matter clear it will
be as well to state here more exactly what a
Privateer is, and under what conditions alone it
can act. This is the more necessary, because
either from ignorance or from insincerity, the most
erroneous and absurd notions have been promul-
gated on this point, by men whose names and
position should have been a guaranty that their
speech was honest and accurate.
A Privateer (or corsair, as it is sometimes called.)
is then, a vessel armed and equipped by a private
person or persons, to the captain of which the
Sovereign of a State at war upon application of the
owner, has issued a commission or letter of marque
and reprisals empowering him to levy war upon
the enemy by capturing his property. The essence
and sole origin of the right thus to cruise and to
seize enemy’s property lies in this commission;
without it the Privateer would be a Pirate.
'With it the Privateer becomes a vessel of the
State and a ship of warf’i for all the purposes for
which it is commissioned as long as the war lasts.
a‘ “ A ship furnished with a letter of marque is manifestly
“ a ship of war, and is not otherwise to be considered because
“ she acts also in a commercial capacity. The mercantile cha-
“ ract-er being superadded, does not predominate over or take
53
As such privateers are, equally with vessels of
the State navy, subject to all regulations which the
State may lay down for their conduct, and in order
to secure the observance of these regulations it
has always been customary to cause them to
give security by depositing a sum of money
before sailing on their cruise, that they will duly
observe them?‘
In the second place it is to be observed that the
Privateer, like the State ship, has only the right to
carry the property he captures into port for adjudi-
cation, that no Privateer can touch a rope-yarn on
board an enemy’s vessel, or appropriate an ounce
of merchandise except after final adjudication as
lawful prize in the High Court of Admiralty,1' and
that if the master or crew commit any acts of out-
rage, or in excess of their authority, even in the
performance of legitimate acts, both they and the
owners are liable to the full value of the property
injured or destroyed-i
“ away the other (Lord Stowell, in the Fanny, 1 Dodson, 448").
“ Privateers are private property in one sense, but they have at
“the same time a public character impressed on them by their
“ employment; though they are private property they are still
“ private property employed in the public service.” On which
ground it was decided by Lord Stowell that a Privateer was
liable to seizure under a capitulation which stipulated that
“ all private property should be respected.” 1 Edwards, 271,
-* Sec Act of Congress of 1812, see. 3; see also the last
Prize Act, 55 Geo. 111., cap. 160, and Appendix A and B.
1" See 55 Geo. 111. cap. 160.
I See the case of the A'miable N cmcy, 1 Paine iii.
54
That there may remain no doubt as to the cha-
racter and the obligations of the Privateer, a copy
of the form of the commission and of the regula-
tions he was bound to observe as they were last
issued in 1812 and 1815, are printed in Appendices
A, B, C, and I).
Thus it will be seen—1. That a Privateer can
only act by virtue of a commission regularly issued
by the State. 2. That in thus acting he is bound
to adhere to the regulations imposed by the State.
3. That he gives heavy security for their observance.
4. That all he can do is to bring the property he
seizes into port, there to be adjudicated upon.
5. That unless the property be declared lawful prize,
he acquires no claim to it. 6. That if he has made
seizure of property without probable cause he is
liable to pay costs and damages to the owners.
Nevertheless, in the face of all this, there have
been found men ready to assert that the Privateer,
who acts by public authority under the regulation
of law, is not to be distinguished from the Pirate
who acts without any authority, subject to no
regulation and in defiance of the law.
Thus Lord Clarendon, then Foreign Secretary,
said at the Conference of Paris,* “la course n’est
“ autre chose qu’une piraterie organisée et légale ”
——-as though piracy ever could be legal—but writing
a despatch ten years later, in the name of the British
* See 22nd Proposal of the Conferences of Paris, 1856:
State Papers, Vol. 46, p. 128.
55
Government, he was forced to retract this monstrous
proposition, and laid it down that “ the character
“ of a Privateer is determined by her commission,
“ and if that is issued by the Sovereign Power of
“the State, whose colours she bears, neither her
“ captain nor her crew can be deemed to be
“ pirates.”
Mr. John Bright, again, who,as a member of
the Privy Council and formerly a Minister of
State, should speak with some knowledge, said at
a public meeting, “ In the reign of Queen Elizabeth
“ more than half of the shipowners, and especially
“those on the southern coasts, were engaged in
“ piracy—their ships were either pirates or corsairs,
“ and I do not know the dzv'fiflerence between them.”1‘
There may perhaps one day be found a man hardy
enough to tell a meeting of sane Englishmen that
he does not know the difference between a burglar
and a sheriff ’s officer, for there is precisely the same
difference between a Pirate and a Corsair; but it
would be strange if even he were rewarded as Mr.
Bright was with applause proceeding from ignorance
as great as, though more excusable than his own.
Again, in the debate in the House of Commons on.
the 13th April, 1875, Mr. Bourke, the Under-
Secretary for Foreign Affairs, said, “ Privateers
“ can do whatever they choose, and are bound by
* Despatch to the Spanish Government, 6th January, 1866.
t See Times report of Mr. Bright’s speech, 26th June,
1875. .
56
“ no rules whatever except those which they make
“ themselves.”
When such is the notion held of Privateers and
privateering by men in authority it is the less sur-
prising that a prejudice should exist in the minds
of men at large against the practice of accepting
volunteer aid at sea. It is remarkable, indeed,
since there is no such prejudice against the accept-
ance of volunteers on land, and since there is no
kind of comparison between the increase of strength
which a maritime country must receive from volun-
teer aid on the sea where her power is, as compared
with that she would gain from volunteers on shore
where her power is not.
The objections made to privateers do not as has
already been said (for they cannot) —-touch the right
to accept their services--—they only deal with the
propriety of the policy of exercising the right. It
is said and repeated that privateering is a
“barbarous ” method of making war, that it is
a “ relic of barbarism,” that ‘l‘ the motive of
“ privateers is plunder,” that “they are one of
“ the greatest scourges of war,” that privateering
is “opposed to civilization and humanity,” and
that to abandon it tends to “mitigate the horrors
“ of war.”
Now it is simply necessary to say in reply to all
this that Privateers act against property alone, that
the one sole object with which they set out is to
take property, and that they neither propose to
57
take nor are permitted to take life, except in case
of resistance to their taking of property. Unless,
then, it is less barbarous and more civilized to take
life than it is to take property, unless it be less
humane to seize a cargo than to blow a ship’s crew
into the air; unless it be more horrible to capture
inanimate merchandise than to dismember and
destroy animate men; unless this be true, it must
follow that the Privateer is far more civilized and
humane in his method of injuring the enemy than
any can be who go out only to “sink, burn, and
“destroy.” The very fact that "‘his motive is
“plunder” (for which read “ Prize”) is his
greatest justification, and the greatest proof that
his method of warfare is the most humane; while
the fact that he is one of the “greatest scourges of
“war” is the greatest proof that nations can be
scourged by attacks on the property more heavily
than by attacks on the lives of their subjects.
The case for Privateers has indeed been ade-
quately stated by President Jefl'ersonz—“Wvhat
“ is War? It is simply a contest between nations
“ of trying which can do the other most harm.
“ Who carries on the war? Armies are formed
“ and navies are manned by individuals. How is
“ a battle gained? By the death of individuals.
“ What produces peace? The distress of in-
“ dividuals. What difference to the sufferer is
“ it that his property is taken by a national or a
“ private armed vessel? Did our merchants who
58
“ have lost 917 vessels by British capture feel any
“ gratification that most of them were taken by
“ his Maj esty’s men-of-war? Were the spoils less
“ rigidly exacted by a seventy-four gun-ship, than
“ by a privateer of four guns, and were not all
“equally condemned? War, whether on land
“ or sea, is constituted of acts of violence on
“the persons and property of individuals; and
“ excess of violence is the grand cause that brings
“ about a peace—one man fights for wages paid
“him by the Government, or a patriotic zeal
“for the defence of his country, another duly
“ authorized, giving the proper pledges for his good
“conduct, undertakes to pay himself at the ex-
“ pense of the foe, and serve his country as effectu-
“ ally as the former—and Government drawing all
“its supplies from the people, is in reality as
“ much affected by the losses of the one as the
“ other, the efficacy of its measures depending
-“ upon the energies of the whole. By licensing
“private armed vessels the whole naval force of
“ the nation is truly brought to bear on the foe,
. “ and while the contest lasts that it may have the
“speedier termination let every individual con-
“ tribute his mite in the‘ best way he can—to
“ distress and harass the enemy and compel him to
“ peace/w‘ That the use‘ of the auxiliary force
3* Article by Mr. Jefferson, 41th July, 1812. See History of
‘the American Privateers. New ‘York, and Sampson Low,
London, 18-57.
59
furnished by privateers is essential to the develop-
ment of the whole fighting force of the country
is proved as soon as it is admitted that there
is any force in privateers at all.
There neither is nor ever has been any doubt
that privateers do furnish a most efficient means of
action against commerce. It is ‘that indeed which
explains the anxiety of the non-maritime nations
to cause this terrible arm to be laid aside, and
which equally explains the determination of such
a maritime power as the United States to retain it.
PRoPosITIoN' IV.—-TIIAT THE ExERcIsE or THE
RIGHT or SEIZURE AND OoNFIscATIoN, WHETHER
BY STATE VEssELs, 0R CoMMIssIoNEn PRIVATE
VESSELS, WHILE IT IS THE MOST EFFECTUAL, IS'
THE MILDEST AND ‘LEAST own or ALL METHons
or MAKING WAR.
That to capture property is a more effectual
means of injuring the enemy than to destroy life,
has already been shown as fully as it is necessary
to show what is self-evident. It remains here to
consider whether this method of warfare is, in its
nature, worse or better, less or more humane than
any of the other methods known, practised and
admitted. There are‘ those who declare that to
capture property is more barbarous and less
honourable than to cut throats; they assert that it
is more degrading to subjects of a warring State to
I‘
60
be induced by the motives of personal profit to
capture prize, than to be induced by the motive of
personal advancement to shed blood. They do
not propose or advise that the hope of extra pay
and promotion shall be withdrawn from among the
inducements to the officers and men of the army
and navy; but they say that the inducement of
prize-money is in some way more immoral and
less honourable. And what is remarkable is that
the same persons who hold this language, entirely
change their tone, when they come to speak of the
merchant, in whose interest, short-sightedly viewed
and ill understood, they raise their contention. It
is not lawful, they assert, for any soldier or sailor
or any volunteer to be moved by the hope of gain;
even though it should be a gain in which his
country participates; but it is lawful for the
merchant to be moved by that hope, nay to be
moved by that alone, and even if its realization be
fraught with disaster to his country. The soldier,
the sailor and the volunteer must fight, they say,
without any consideration of private gain ; but the
merchant must trade upon this consideration alone,
nay more than that, he has a right to claim any
sacrifice on the part of his country which will
enable him to continue his trade at all times.
It is, nevertheless, manifest that if it is right to
reward one who fights for the State out of taxes
taken from his countrymen, it cannot be wrong
to reward another ‘out of prizes taken from his
61
countrymen’s enemies, and that it is not less
honourable to receive prize-money for destroy-
ing the enemy’s resources in goods, than it is
to receive a title or a riband for destroying his
resources in men. Nay, since the first object is to
weaken the foe, and thus to cause the war to be
brought successfully to an end, and since, there-
fore, he is best entitled to reward by his country
who most powerfully contributes to this end, the
greatest rewards and the highest honours should
be reserved, not for those who kill most men, and
thereby inflict a comparatively slight injury on the
enemy, but rather for those who capture property,
and thereby at once inflict a great injury upon
him, and also add to the resources of their own
country.
It has, however, been freely alleged that this.
method of making war is more barbarous and
brutal than all others. Those others be it remem-
bered consist in the destruction of human life,
while this is solely concerned with property ; and
this alone is a sufficient answer to such an argu-
ment. But from the declamatory denunciation of
the capture of property at sea, it is apparent that
the methods by which alone that capture can law-
fully be effected, are either unknown or are inten-
tionally concealed. For which reason it seems
expedient here to set forth what the procedure is,
whether for State vessels or Privateers. The
cruiser if he comes across a vessel he suspects to
62
have enemy’s goods on board, requests her to lay
to, and sends a boat on board with an ofiicer
whose duty it is to examine the vessel’s papers.
If it appears from these that the vessel itself is the
property of the enemy, or that there is enemy’s
property in the cargo, the captain of the cruiser on
his responsibility and at his risk, puts a prize crew
on board, and takes the vessel into port. He may
not break bulk, nor touch or embezzle an article on
board the vessel under pain of forfeiting his whole
share in the prize, together with treble the value
of the articles embezzled?“ He may not injure a
person on board, he may not even ransom the
prize and set it at liberty, but must bring it into
port for adjudication]L Once there, the vessel is
delivered over to the Admiralty Court, which pro-
ceeds to decide whether the capture is good prize
or not, and if not, the captor is liable, and is con-
demned to pay costs and adequate damages for his
interference with the vessell There is in short no
warlike act which is so fenced about with conditions
and with securities as this, none in- which the voice
* 55 Geo. 111. cap. 160, s. 56. 1' Idem, s. 12.
I See Lord Stowell’s letter of 10th Sept. 1794.‘, as to pro-
cedure, in Robinson’s Admiralty Reports, American edition.
“ Agreeing to share prize-money (in 17 99) involved sharing
“ the bad as well as the good fortune of the captors. Enemy’s
“property in neutral bottoms could not always be proved,
“ and where proof failed the captors were liable to demurrage
“ and very heavy costs.”-—-T7w Life of Sir W. Parker, Admiral
of the Fleet. London, 1876, p. 127.
63
of the dispassionate judge is heard as it is in this,
none in which injury to the innocent is ‘so guarded
against, none in which the excesses of the strong
and the violent are so precluded. In other operations
of warfare, such as battles ashore or on the seas,
the whole black array of human passions are let
loose and encouraged to do their worst; in this
they are restrained by the most rigid rules, and
forced to submit themselves to the judgment and
approval of a calm and orderly tribunal, and if any
man has wrought violence or inflicted injury he has
to answer it.
The seizure of property on land in time of war
is subject to no such rules. Any military com-
mander who chooses to declare it necessary, may
on land seize any property he may please to
designate, without any form of trial or judgment
whatever. ‘ And though it is true that he is
answerable for his acts, after they have been
done, to his military superiors, that is a very
different thing from being, as the naval captor
is, answerable before the act is done, to an inde-
pendent court. It is clear then, that this is of all
methods of warfare the least cruel and the least
liable to abuse. Moreover it is the only method
by which any action can be brought to bear at sea
upon the enemy’s resources ; on land a belligerent
may capture territory, and thereby acquiring the
absolute dominion over it, may dispose as he
pleases of the inhabitants and of their property.
64
At sea he cannot capture territory, but the right to
capture property is only therefore the more clear.
Either the state of warfare gives the right to
capture property at sea, or it gives none toicapture
both territory and property on land. From this
dilemma there is no escape, and those who main-
tain that property at sea should be exempted from
the incidents of the war, must extend the same
principle to property ashore, and must declare
not only against the requisition of food, forage,
houses, horses, and other property required by
armies, and always taken by them when required,
if found, but also against the invasion of territory,
the bombardment or siege of towns, the levying of
contributions, and generally against any interference
whatever with trade and property. In other
words, they must denounce war altogether; but at
any rate those who recognize that war, with its
incidents, is sometimes indispensable on land, must
recognize that it is sometimes necessary with its
incidents at sea.
There seems to be, however, in some minds so
great a desire to limit to the firm land all the
operations and incidents of warfare, that they do
not hesitate to declare not merely against the right
of capture of enemy’s goods, but even against the
right of search upon which alone all knowledge of
a vessel, of her nationality and character must be
based. They declare that the act of boarding a
merchant vessel, and of examining its papers, and
65
if cause appear, its crew and cargo, is an infraction
of the sovereignty, and a violation of the territory
of the nation to which the vessel belongs, and a
' writer on the laws of nations* has even been found
to lend the authority of his name to a pretension
condemned by all other publicists without except
tion. Nevertheless the right of visitation and‘
search is assuredly one of the mildest and the least
susceptible of abuse that can be exercised. Its
object is to-verify the nationality and the neutrality
of the vessel visited, and to establish the innocent
nature of its voyage. The exercise of this right is
a necessary consequence and corollary of any other
belligerent right whatever. On land the limits of
territory are known and apparent, and its character
is established by its situation ; but this is not the
case with a vessel on the high seas. She may'hoist
false colours, or she may have false papers, practices
which indeed have always been common in all
wars. The belligerent man-of-war therefore has
the right to assure himself that the vessel he meets
is truly a neutral, and that her cargo is of an
innocent nature, having an innocent destination.
The method of assurance is settled to the merest
detail by the law and the practice of nations. In
the first place the man-of-war hoists her colours
and fires the “ afirming gun,” which is equivalent
to a declaration on honour that the colours are
truly those of her sovereign. Thereupon the
* De Rayneval, De la Liberté @188 Mm, t. Licap. Xvi.
5
(36
merchant vessel in view of which the colours are
hoisted and thus afiirmed, is bound in turn to pro—
claim her nationality by displaying the flag under
which she navigates. This may be, and may be
deemed sufficient— but if not, the man-of-war
lowers a boat with an armed crew, and sends it
away under the command of an officer, who, on
boarding the meachantman may be accompanied at
most by two of his men, and who forthwith pro-
ceeds to examine the ship’s papers. If it should
clearly appear from these that the vessel and cargo
are bond fide neutral property, and that there is on
board no contraband of war destined for an enemy’s
port—or if only it should not appear that there is
any good cause to suspect the contrary—then the
merchantman is allowed to proceed. If on the
other hand it would seem that the vessel is enemy’s
property, or that, being neutral, she is engaged in
conveying contraband of war, or in traffic of an
otherwise unlawful nature, the captain of the man- of-
war may seize her—always at his own risk, and
with the certainty, if he fails to prove his case, of
having to pay costs and damages.
It would seem to require little argument to
show that the right of visitation and search is one
which can by no means be abandoned. By it
alone can the flag be verified, by it alone can the
carrying to the enemy of contraband of war be
prevented, by it alone can any safeguard be
afforded against the many frauds and deceptions
6 7
which the very situation invites. The right is un~
doubted, the exercise of it is necessarily mild and
moderate in character, and it amounts to nothing
more in the world than affording an opportunity
of proving the alleged character. It may be odious
to those who wish to evade the duties of neutrality;
but to the honest neutral it will hardly be
inconvenientff
It has also been often declared that the visit,
seizure, and despatch to port for judgment of
unarmed merchantmen by armed vessels of war
or privateers was, when it was practised, accom-
panied by many grievous abuses; that Privateers
especially were occasionally guilty of great bar-
barities and of acts of lawless violence towards the
crews captured, and that they habitually destroyed
or altered the papers, embezzled the cargo of, and
fraudently gave an inimical colour and character
to all vessels that fell into their hands.
Upon this it is to be remarked that the assertion
thus made is entirely unsupported by proof, and
that, on the contrary, the records of the Admiralty
Courts show that, as a rule, the ‘seizure and
bringing in were effected regularly and without
violence— generally, indeed, without any resist-
ance—whether by king’s ships or by privateersj‘
The same records also show that it was extremely
* See Lord Stowell’s Judgment on the llfaria (Robinson,
340).
1" See Robinson’s Admiralty Reports, possim.
\ 9
I’) =76
68
difficult to conceal any irregularity which it was
the interest of the captured to disclose, and
that wherever misconduct was shown, punishment
promptly followed. And now, even if it were
true that the capture of property were always
accompanied by abuses, that would indeed be a
good reason for devising methods to suppress those
abuses, but it neither would nor can furnish ground
for attacking the right on which those abuses have
been engrafted. And here again, that which has
already been said must be repeated—that the
capture and making prize of property at sea is
the one operation of warfare which is subject to
calm, unimpassioned judicial decision before the
act itself is completed; and that, therefore, if it be
liable to abuse, it is at any rate of all acts of war-
fare that in which the abuse is most certain to be
detected, and due reparation most certain to be
made.
69
PART II.
THE PRESENT POSITION OF GREAT BRITAIN IN
RELATION TO MARITIME WARFARE.
THE DECLARATION OF PARIS.
THUS far I have treated the questions discussed
in this work upon general principles applicable
equally to all nations having any maritime power
capable of being used in time of war against an
enemy. It is manifest that these questions are of
importance to any nation in direct proportion to
the extent of its maritime power; and equally
manifest that, to a nation like Great Britain, which
must place its main reliance upon maritime power,
they are of the very highest importance. I pro.-
pose, therefore, to give a short statement of the
history of the matter as regards this country, and
to review the successive steps that have been taken
in relation to it as well as the present position in
which it stands.
The right of a nation at war with another to
fight and kill belligerent men must seem to all
reasonable persons to imply at least an equal right
to capture and confiscate belligerent property; nor
has the exercise of either of these rights ever been
questioned on land where to the present moment
70
they are exercised within limits bounded only by
the necessities and convenience real or supposed
of the belligerent that exercises them. Indeed a
very little attention to the nature of war will show
that on land no war can be carried on without the
exercise of those rights, For on land war must
of necessity be carried on in the territory of one
or the other of the belligerents. Of two belli-
gerents one must always be the invader and the
other the invaded; and there is no single act of
warfare which the invader can perform that is not
an exercise of the right to appropriate the property
of the invaded. The moment he crosses the frontier
he seizes the roads, and in these days especially the
railroads with their rollingastock, their stations,
and their whole furniture and appliances; he
occupies all buildings that he may hold necessary
for his purposes, he razes them to the ground if
he thinks it fit; he marches over and destroys
standing crops, he fells trees, he digs trenches,
makes approaches, raises fortifications in and with
the land of the enemy; he seizes cattle which he
eats as food or employs as beasts of burden; and
having seized the material property he soon seizes
the money of the inhabitants. All these are the
admitted and approved as well as the inevitable
results of warfare, and none has ever been‘ found
to question the full exercise of the belligerent
right on which they rest. If they are exercised
with mildness and caution, as they will be by .a
71
belligerent who desires to avoid exasperating the
inhabitants whose property is subjected to them,
or who desires to leave on his advance all the
property he may want on his retreat, that does not
affect the rights themselves, nor is any belligerent
ever held bound to refrain from their exercise
except in so far as humanity and prudence may
dictate.
If it be admitted that war can be levied on the
seas, it must also be admitted that the same inci-
dental rights belong there to it; for these rights
rest on the very nature of war. Neither can it be
contended that the same right of sending forth
volunteers to take part in the war which exists
and is exercised on land, does not equally exist or
may not be exercised on the seas. Moreover the
practice of nations during the whole modern history
of Europe has been in accordance with this prin-
ciple, which, though often attacked by neutrals,
was always successfully asserted and defended by
belligerents up to the middle of the present century.
In 1854, however, on the outbreak of war with
Russia, an extraordinary transaction took place.
It was to be supposed that Great Britain would
maintain and act upon principles so indisputable,
and which had so contributed to her greatness;
and in effect on the 16th February, 1854, Lord
Clarendon, in reply to a despatch from M. Lousada,
directed him to be informed that the produce and
property of the enemy was “lawful prize of war,”
72
and that ‘‘ its being laden on board a neutral ship
“ will not protect that property; "’ it while on the
25th March, 1854, he wrote to a deputation of
merchants “if it (Russian produce) should still.
‘‘ remain enemy’s property, notwithstanding that it
“ is shipped from, a neutral port and in a neutral
"‘ ship it will be condemned/W‘ Yet the French
Government has revealed the fact that while the
Secretary of State for Foreign Affairs was thus
declaring what would be done, the English Am-
bassador in Paris was at the same time (on the
14th March) declaring that he had received instruc»
tions to communicate a declaration of his Govern-
ment that this same thing should not be done, and
that “the neutral flag should cover the enemy’s
“ merchandisel And on the 28th March, 1854,
a notification without any signature or other
marks of authority whatever was published in the
London Gazette to the effect that the Government
of Great Britain had determined to waive during
the war the right of commissioning Privateers
and of seizing enemy’s goods (except contraband
of war) in neutral vessels.§
Thus within three-days of an official declaration
‘signed by the Secretary of State, that the right of
seizing enemy’s goods in neutral vessels would
* State Papers, 1853-1854.‘, p. 106.
1' Times Newspaper, Mrrch 1854!.
1 British Neutrality Laws Comm-fission Rei'lOTt.
§ State Papers, 1855-1866, p, 36.
73
be exercised, the public were informed by a noti-
fication signed by nobody that it would not be
exercised. This is a chapter in history which
loudly calls for explanation.
But the rights which had been “waived” in
1854, at the beginning of the war, were again
brought under consideration in the Conference of
1856 at the end of it. On a proposal made by the
English and French Plenipotentiaries7 and which
the Plenipotentiaries of Austria and Russia declared
themselves to be unprovided for and without
authority or power to accept or even to consider, a
Declaration was formulated as follows 2-—
“ANNEXE au Protocole No. 23.
“ Declaration.
“ Les Plénipotentiaires qui ont signé le Traité
“ de Paris du 20 Mars, 18567 réunis en Conférence.
“ Considérant:
“ Que le droit maritime, en temps de guerre, a
été pendant longtemps l’objet de contestations
I\
b
“ regrettables;
“ Que l’incertitude du droit et des devoirs en
“ pareille matière, donne lieu, entre les neutres et
‘ les belligérants, à des divergences d’opinion qui
peuvent faire naître des diflieultés sérieuses et
“ même des conflits ;
“ Qu’il y a avantage, par conséquent, a établir
“ une doctrine uniforme sur un point aussi im-
n
U‘
I‘\
4€ . .
poi taut ,
74
“ Que les Plénipotentiaires assemblés au Congrès
“‘ (le Paris ne sauraient mi 7 " l‘ ’ ' t -
u c. eun ieponc 1e aux in en
“ tions dont leurs Gouvernements sont animés,
“ qu’en cherchant à introduire dans les rapports
C
r‘
internationaux des principes fixes à cet égard;
“ Dûment autorisés, les susdits Plénipotentiaires
sont convenus de se concerter sur les moyens
0\
'\
d’atteindre ce but; et étant tombés d’accord ont
arrêté la Déclaration solennelle ci—après :'
“ 1. La course est et demeure abolie ;
“ 2. Le pavillon neutre couvre la marchandise
4
‘\
ennemie, à l’exception de la contrebande de
a‘ ‘ I" O
gueiie,
“ 3. La marchandise neutre, à l’exception de la
n
.\
contrebande de guerre, n’est pas saisissable sous
C
‘\
pavillon ennemi ;
“ 4. Les blocus, pour être obligatoires, doivent
C
6
être effectifs, c’est-a-dire, maintenus par une force
h
1‘
suffisante pour interdire réellement l’aceès du
n
‘ littoral de l’ennemi.
“ Les Gouvernements des Plénipotentiaires sous-
C
.\
signés s’engagent à porter cette Déclaration a la
connaissance des Etats qui n’ont pas été appelés
à participer au Congrès de Paris, et a les inviter
“ a y accéder.
“ C ' l "l *' ~ l
onvamcus que es maximes qu 1 s viennent c e
“proclamer ne sauraient être accueillies qu’avec
C
(N
gratitude par le monde entier, les Plénipo-
ñ
‘ tentiaires soussignés ne doutent pas que les
t
h
efforts de leurs Gouvernements pour en générw
75
“ aliser l’adoption ne soient couronnés d’un plein
“ succes.
“ La présente Declaration n’est et ne sera obli-
“ gatoire qu’entre les Puissances qui y ont ou qui
“ y auront accédé.
“ Fait a Paris, le 16 Avril, 1856.
“ (Suivent les signatures.) ”*
At the next sitting of the Conference on the 16th
April, 1856, the Russian and Austrian Plenipoten-
tiaries announced that they had now received
instructions and authority to sign this Declaration,
and it was signed accordingly by all the members
of the Conference on that day.
It will be observed that Lords Clarendon and
Cowley by their act implied that they had already
received from their Sovereign a sufficient authority
to sign this Declaration. It is manifest that any
such authority to be good must be of a very
formal, solemn, and undoubted character, for the '
act to be done was nothing less than the abrogation
of all the principles and laws of maritime warfare
hitherto admitted universally, and the abandon—
ment of rights of the greatest possible importance
never hitherto abandoned, and which, while they
were waived, were at the same time expressly
asserted to appertain to Great Britain in the Noti-
fication of March 28th, 1854:. Yet not only no
such authority, but no authority whatever has ever
*2 State Papers, 1855-56.
76
been produced empowering Lords Clarendon and
Cowley, or either of them, to sign such a document
as this. They had indeed produced in the sitting
of 25th February, 1856, their full powers to make a
Treaty of Peace between the Allies and Russia, but
there is no reason to suppose that they were better
authorized than Count Crloff or Count Buol to
unmake the laws of warfare. And indeed Lord
Clarendon soon after admitted in the House of
Lords that he and his colleague had not “ confined
“themselves within the strict limits of their in-
“ structions.” There is therefore every reason to
conclude that Lords Clarendon and Cowley had no
authority, and consequently no power to agree on
behalf of their country to this Declaration. It
forms no part of the Treaty of Peace to which
alone their instructions and powers extended so far
as they have been disclosed, and no disclosure has
ever yet been made of any other instructions or
powers whatever duly delegated to them. And
while no such anterior authority has been produced
to justify the signature of the Declaration, no sub-
sequent sanction has ever been afforded to ratify
it. The Sovereign of Great Britain has affixed no
sign-manual to it, the Houses of Parliament, though
often challenged, have always refused to confirm it
by a vote; and to this day the Declaration remains
what it was when signed, the act of Lords Claren-
don and Cowley, done entirely without any known
authority ; and if by any authority at all, by
77
one which must be insufiicient, since neither Lord
Clarendon, Lord Cowley, nor any other person, has
ever ventured to disclose it.
But whatever may have been the authority to
sign the Declaration, the Declaration itself furnishes
the proof of its own extravagance and nullity. It
sets forth that the object is to declare a “uniform
“ doctrine,” and to lay down “fixed principles of
“ international maritime law ;” and yet the whole
Declaration affirms itself “not to be obligatory
“except between the Powers who have or shall
“have acceded to it.” The absurd impossibility
of calling by the name of uniform doctrine that
which is only to be observed by those who recipro-
cally agree to observe it, is manifest ; and no less
manifest is the impossibility of regarding that as a
fixed principle which is only fixed for those who
accept it. The very signatory Powers it will be
observed are not held bound by the doctrine or
principle in general, but only as towards the
Powers that may equally accede to it. It would
be the height of absurdity to regard such a contra-
dictory declaration as being entitled to respect;
and by the event it was seen to be and has since
remained absolutely false as a matter of fact. For
the United States and Spain having declined to
accede to it, privateering is not abolished, and the
neutral flag does not cover the enemy’s merchan-
dise, either for those two non-declaring States or
78
for any one, even of the declaring States when
at war with either one of them.
The Declaration itself then is false in fact, false
in its statement of doctrine, of principle, and of
maritime law, and, as far as Great Britain is con-
cerned, was signed without any known authority.
If war between two nations puts an end as it
does to all the treaties previously existing between
them, much more must it put an end to a Declara-
tion of this nature. Some indeed have held that
this alone deprives the Declaration of Paris of
all importance, since being made for war it ceases
to be of effect between two b‘elligerents when war
arises. But this view rests upon a misapprehen-
sion of the nature of the Declaration itself, and
is easily shown to be groundless. The fact that
it was made solely with reference to a state of
war may not prevent it from being terminated by
war as between the belligerents; but that also does
not affect it as between either of the belligerents
and all the States remaining neutral. A State at
war with another, both being signatories of the
Declaration, may not be bound by it as towards
the enemy; but it is still bound by it as towards
the neutrals. And this is the Whole question, for
the cardinal point of the Declaration is that
neutrals shall be allowed to carry on and to pro-
tect from capture enemy’s commerce. The obliga-
tion is an obligation towards the neutral to spare
79
the belligerent; the neutral claims the fulfilment
of the obligation, and the belligerent reaps the
benefit of it. The consequences of this are greater
than have been commonly suspected. Under the
terms of the Declaration, for instance, it is not
obligatory between Great Britain and the United
States in case of war between them. But in case
of such a war it would still be obligatory between
Great Britain and the other adhering States; the
result of which is that while the United States
would have, under the Declaration, full power to
capture British commerce in neutral vessels, Great
Britain would be precluded from capturing Ameri-
can commerce in neutral vessels, she being bound
to the neutrals themselves not to do so. She
could indeed, not being bound to Spain, capture
American commerce in Spanish vessels, but all
other neutral flags would protect American com-
merce from Great Britain, and at the same time
would not protect British commerce from America.
Such is the inevitable result of the rules laid
down by this Declaration, which professes to have
established a “ uniform doctrine.”
In addition to this, no security can be felt that
other nations signatory to it will faithfully observe
it if they should hold their interests to dictate the
contrary course. All experience proves that it
would be futile to rely on the observance of such
engagements, even when they have been put
in the most binding form and made in a far more
80
deliberate and solemn manner than the hasty and
unexpected Declaration of Paris. The armed
neutrality of 1780 was formed by Russia to esta-
blish the cardinal principle of the Declaration of
Paris, that the neutral flag shall protect enemy’s
property; but in 1793-only thirteen years later——
this same Russia finding herself at War, absolutely
threw over and repudiated the principle it had laid
down, and both openly propounded and by force
carried into effect the ancient and contrary prin-
ciple, that enemy’s property should be captured
wherever found.
These things being so, it might be thought that
it would suffice for Great Britain to let the Decla-
ration be where it stands on its own inherent
baselessness, and simply to disregard it whenever
war may arise. That, however, would be a course
highly immoral, highly unjust, highly dangerous,
and only worthy of a Power devoid of faith.
Instances of similar or rather of worse conduct
are indeed not wanting. “To have seen Russia.
tear up the Black Sea clause of that very Treaty of
Paris, the Conference on which led to this very
Declaration; and had the Declaration formed part
of the Treaty it must have disappeared with the
infraction of any other part of it. For assuredly
if a solemn Treaty, made with full powers and duly
ratified may be repudiated, much more may a
declaration made without powers and never
ratified.
81
But although not legally bound by this Declara
tion, Great Britain is in honour bound to it, unless
and until it is formally repudiated. Its informality,
its want of authority, its falsehood in fact and in
principle, are of the highest importance to be kept
in view, because they allow and even invite its
repudiation in time of peace;v not because they
would excuse its repudiation in or on the outbreak
of war. The Declaration can be repudiated; it
cannot be ignored. Although no authority to
sign it has ever been disclosed, although it has
never been afiirmed by the Houses of Parliament
or ratified by the Sovereign, still it was signed
with an affectation of authority by an English
Secretary of State and an English Ambassador.
By all therefore, except by those who would have
Great Britain emulate Russia in tearing up all
engagements when it suits her and circumstances
give her the power to do it in despite of all faith
and honour, this Declaration must be accepted as
being at present binding on Great Britain. But
though it is binding it is not irrevocable. The act
that was done in the dark without authority may
be undone in the day with authority. It is abso-
lutely within the competency of the Crown, either
of its own proper motion, or moved thereto by an
Address from the Houses of Parliament, to declare
that the Declaration of Paris is no longer accepted
by it as the rule of maritime warfare, and thus
to revert to the common rights of all warfare. But
6
82
until the act of the two Plcnipotentiaries who
assumed to sign on behalf of Great Britain in
a matter beyond their powers shall have been
denounced, and the Declaration itself openly
declared to be no longer binding, so long must
it and will it be binding on Great Britain.
II.—-—TI-IE EFFECT or THE DECLARATION or
PARIS on GREAT BRITAIN.
The Declaration of Paris aflirmed four rules or
laws of Maritime \Varfare, of which two are old
and true, and two new and false.
Those which are old and true are those which
declare (1) That, “neutral merchandise, with the
“ exception of contraband of war, is not liable to
“ capture under the enemy’s flag;” and (2), that
“ blockades, in order to be obligatory must be
“effective, that is to say, maintained by a suffi-
“ cient force really to prevent access to the coast
“ of the enemy.”
Those which are new and false are those which
declare (1) that “ Privateering is and remains
“ abolishec ;” (2) that “the neutral flag covers the
“ enemy’s merchandise, with the exception of con-
“ traband of war.”
The two former rules of the Declaration can not
only be admitted, but must be affirmed to be truly
consonant with the Law of Nations; the two latter
83
are as absolutely in contradiction of it and of
the facts, as has already been shown; and with these
two latter we are therefore alone concerned.
The effect of them upon Great Britain is without
doubt and beyond question greater than upon any
other Power; because Great Britain being the
principal maritime Power in the world must feel
more than any other the effects of any change in
the laws of Maritime ‘Narfare. And the fact that
Great Britain has shown herself before the change
was made able to resist the whole of Europe in
arms, and to come victorious out of the struggle
by the very aid of the very principles now declared
to be abrogated and reversed, must lead us to
conclude in limine, that the change made is one
fraught with especial disadvantage to her. Let
us however examine the changeslthemselves and
their effects.
I.--—“Privateering is and remains abolished”—~
that is to say, is abolished for Great Britain when-
ever she is at war with any other States than. the
United States or Spain ; but not when she is at
war with either of those two. The effect of this
is to deprive Great Britain of the services of volun-
teers at sea, and to preclude her from employing
in warlike operations either the vessels or the men
of her vast mercantile marine; for a Privateer is
but a private vessel commissioned by the State.
She loses thus not only an offensive but also a defen-
sive weapon; for Privateers do not only capture
6 ‘1'5
84
enemy’s vessels, but also recapture those of their
own nation; and they are to the State Navy a most
valuable auxiliary, without which an amount of
power proportioned to the size of the mercantile
marine of the State remains unemployed in time
of war. She loses the power of withdrawing a con—
siderable number of merchant-vessels from exposure
to the enemy as unarmed merchantmen by turning
them into offensive weapons armed cruisers, and
thus at once diminishing the number of vessels
liable to be captured and increasing the number of
those able to capture. She loses one of the best
schools for the formation of daring and adventurous
sailors, and with it those traditions of prize-money
won in conflict, which have always been found the
most urgent incentive to daring and adventurous
men.
It has indeed been said that the general exercise
of the right to arm and commission Privateers
would act most injuriously for Great Britain,
seeing that she of all nations in the world has the
largest amount of commerce on the seas exposed
to capture. And the abolition of privateering
which was assumed to be made by the Declaration
of Paris of 1856 has even been represented as a
gain to Great Britain sufficient to warrant her in
giving up the right to seize enemy’s goods in
neutral vessels.
This argument is a specious one, but when looked
at for a moment it entirely falls to pieces. The
85
answer to it is so apparent and so complete that
nothing but surprise can be felt that any who pro-
fess to have thought on the subject could ever have
been misled by so transparent a fallacy; and it is
only because many have been so misled that it is
worth while here to set down the answer.
In the first place it is clear that to take merchant
vessels, and to arm and commission them as priva-
teers, is at once to withdraw those vessels from the
category of undefended merchantmen liable to
capture, and to bring them into the category of
State vessels able themselves to capture. Every
privateer is at once a vulnerable point the less and
a weapon the more. Every commission issued to a
merchantman therefore diminishes the number of
defenceless vessels by one ship, and adds one ship
to the number of defending vessels. Moreover it
is to be remembered that the more commerce a
.nation has afloat the more vessels are there required
for its defence, and therefore the more reason for
accepting the services of volunteers to aid in that
defence.
It is apparent then that to reject the assistance
of the merchant navy, whether to defend itself
alone by virtue of letters of marque, or at once to
defend and to attack by virtue of letters of marque
and reprisals, such as the Privateer properly so-
called receives, is to reject a defence of higher and
greater importance to Great Britain than to any
other country. _
Moreover a very important element in the
86'
matter, and one which seems to have been totally
forgotten and overlooked, is the fact that privateers
are as valuable for defence as they are for attack.
The rule that enemy’s property in enemy’s ships is
liable to capture by State cruisers has never yet
been invalidated, and all English commerce would
therefore to this extent be liable to capture if
We were at war tonnorrow. But, now, any English
vessel thus captured must be sent into port for ad—
judication in charge of a prize crew. Under these
circumstances she becomes at once liable to re-
capture; and this in fact is the very case in which
maritime supremacy most makes itself felt. A
country that is strong on the seas must of necessity
have on the seas a large commerce, for it is thence
only that maritime strength can he derived. Of
necessity therefore it must have much property ex-
posed to capture by the enemy. But its security is
that if it has a preponderence at sea, if it has
a greater number of cruisers, and if it does increase
their number by adding to them all the privateers
that offer, it becomes all but impossible for the
enemy to reach his ports with any captures he may
make. He may seize but he can rarely enjoy, for
before the prize can reach his port it is all but
certain to be recaptured. This is no fancy picture;
itv is precisely what has occurred in all the great
maritime wars in which privateers have been
employed.if
'*‘ “No Privateers were then (i801) allowed to be fitted
"‘ out from France; consequently no recaptures which were
87
The question is not one of the liability of
English commerce to capture in case of war—for it
must always be liable to that—-but it is this—
Whether in case of war, by the employment on both
sides of Privateers Great Britain would inflict
or would suffer the most injury. The fact that
this country possesses a far larger number of
merchant vessels than any other Power is in itself
a sufficient solution of the question, since it
shows that she could send out more Privateers
than any other, or indeed than all the others put
together. She has therefore the most to gain of
any Power by using this arm, since she could use
it with the greatest effect against her enemy’s
trade. She has least‘ to lose by using it, since by
using it she could the best protect her own trade.
The first immediate object of maritime warfare is
to drive the enemy’s flag from the seas (as was
done in 1799 and in 1805)., and to cover them
with our own. The more completely this is-
effected, the less will our commerce suffer, for the
‘less chance will the enemy have of making a
capture or of getting it to port without being
recaptured; and this can only be effected with
any completeness at all by the use of Privateers,
who will range all seas in search of prize and
salvage—money.
The case of the Alabama has often been cited to
“ formerly almost a certain thing.” —Life of Sir W. Parker.
London, 1876, p. 166. '
88
show the damage a single cruiser may inflict on a
largely extended commerce, and to prove that
privateering would be as injurious to a nation with a
large trade, as was the Alabama to the United States.
But the case of the Alabama was not the case of a
privateer, and has no analogy with it. The action
of the Alabama was piratical, for her captain
destroyed property and vessels without any regular
examination and condemnation of them—without
any judgment of any Admiralty Court and upon
his own sole fiat. And the responsibility of those
acts having been brought home to Great Britain,
Great Britain was made to restore the value of
what was so destroyed. Moreover the ‘course
pursued by the captain of the Alabama which was
that, not of capturing, but of destroying property,
is a course which no Privateer would pursue.
The immediate object of the Privateer is exactly
the reverse of this—~it is not to destroy but
to preserve property, and to have it confiscated
to his profit, which he can only do by taking it
into port. A State vessel indeed may in the
interest of the Government destroy, but not the
Privateer. In the very nature of the case it
is necessary for him to carry his capture into a
safe port, a matter of ease and almost of course if
his country commands the seas, but a matter
of the greatest ditficulty and almost of impossi-
bility if the enemy commands them. The only
kind of vessel that could ever repeat operations
89
like those of the Alabama must be a State vessel,
and it is supremely ridiculous that the doings of
that vessel should be held up as showing the injuries
a Privateer would do to an extended commerce,
since that kind of injury is precisely that which no
Privateer would inflict.
There are those who affect to believe that it
would be allowable for a belligerent to fit out
Privateers in neutral ports, and imaginary pictures
have been drawn of British commerce falling a
prey to the depredations of Privateers armed in the
United States in case of a war with any European
Power? It must however be assumed by those
who use this as an argument that a neutral has
the right to allow armed expeditions to issue from
its ports against a belligerent, a notion too mon-
strous to originate in anything but complete igno-
rance of the subject, and one which Was as
solemnly denounced by every member of the
Geneva Tribunal, as it has been by every publicistj’
* “It was well known that at the commencement of the
“ Crimean war, the Russian Government was going to
“ commission privateers from the United States, and it was
“ only the Declaration (of Paris) in question which saved the
“world from a horde of pirates issuing from the United
“ States under the Russian fiag.”-—Mr. Evelyn Ashley in the
House of Commons, 13th April, 1875.
1' As the subjects are not under an obligation of scrupulously
weighing the justice of the war, which indeed they have not
always an opportunity of being thoroughly acquainted with,
and respecting which they are bound in case of doubt to rely
on the Sovereign’s judgment—they unquestionably may with
90
And it is remarkable that the United States, the
very power singled out as being ready to make
this infraction of the duties of neutrality, is the
very power which has made the latest and the
‘a safe ‘conscience serve their country by fitting out Privateers,
unless the war be evidently unjust. But on the other hand it
is an infamous proceeding on the part of foreigners to take
out commissions from a prince in order to commit piratical
depredations on a nation which is perfectly innocent with
respect to this.—Vattel (Chitty’s translation), Book iii.
cap. xv. § 229.
Les souverains neutres sont dans l’obligation non seulement
de défendre a leurs sujets d’accepter cette mission de guerre,
mais encore de prendre toutes les mesures en leur pouvoir
pour s’opposer a cette violation des devoirs de la neutralité.
C’est pour remplir cette devoir que les lois intérieures de la
plupart des Etats défendent expressément aux suj ets d’accepter
des lettres de marque etrangéres.—Hautefuille, Droz'ts ct"
Devoirs des Nations N eutres, Vol. I. p. 154:. See also
Martens, Vol. IV. p. 209.
A Power which sends assistance in troops or money to one
of the belligerent Powers, or even in strictness which permits
its subjects to take out letters of marque from the enemy in
order to fit out a Privateer, can no longer demand to be
treated as a neutral power.——-Masters, on Captures, p. 217.
A neutral Government is bound to use due diligence to
prevent the fitting out, arming, or equipping within its juris-
diction of any vessel which it has reasonable ground to believe
is intended to cruise or to carry on war against a Power with
which it is at peace; and also to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to
cruise or carry on war as above, such vessel having been
specially adopted in whole or in part, within such jurisdiction,
to warlike use—Rules for the Award of the Geneva Tribunal
on the Alabama Claims. Treaty of 8 May, 1871.
The United States by this treaty “ agrees to observe the
rules as between Great Britain and itself in future.”
91
most effectual protest against it, and has claimed
and received damages for such an infraction.
It is clear that if, as is alleged, a navy so large
and powerful as that of Great Britain would not
suffice for the adequate protection of her own
commerce, it would, a fortiori, not sufl‘ice at once for
that and for adequate attack on the enemy’s com-
merce. A great part of the latter must, therefore,
escape capture, and any war must, pro tanto, be so
much the more prolonged, unless means can be used
beyond those afforded by the State navy. These
means are at hand in Privateers. There can be no
doubt that any maritime country would be able at
once on the outbreak of war to obtain the services
in this capacity of a considerable proportion of its
merchant vessels, since by the very outbreak of
war, many of them would necessarily be thrown
out of their ordinary employment, especially those
whose trade had hitherto been with the other
belligerent; and many of the owners would gladly
avail themselves of letters of marque and reprisals,
in order to indemnify themselves by prize and
salvage-money for the trade they had now lost.
The seas would thus assuredly be covered with
cruisers sufficient to deal with the whole commerce
of the enemy; for wherever such commerce existed
there would exist a sufficient inducement for the
privateer to go forth to its capture.
But even if it were true, which it is not, that the
abolition, so called, of Privateering were an equi-
92
valent advantage to Great Britain, for the dis?
advantage in the admission of the doctrine that the
neutral flag covers enemy’s merchandise, there is
as we shall see no security in the nature of the
compact that the advantage would be reaped,
although there is every security that the disadvan—
tage would be inflicted.
Privateers, however, in any case are and must
be useless unless there be property on the seas
liable to capture. The first article therefore of the
Declaration derives all its importance from the
second, which is,
II.——-“ The neutral flag covers the enemy’s
merchandise, with the exception of contraband of
war.”
This is the kernel of the whole matter, the one
truly important point to which all the rest is
subsidiary, and to affirm which the Declaration
was made. Let us examine its effects.
a. In the first place, it absolutely withdraws all
property at sea, except contraband of war, from
all the incidents of war. By so much, therefore,
it lessens the power of a belligerent State to carry
on war at all; and for a State like Great Britain,
of which the main power is on the seas, it reduces
the power of making any war to a minimum. F or,
as a matter of course, it will be found, indeed as a
matter of fact it has been found, that any State at
war with Great Britain would at once place the
whole of its sea-going commerce under the neutral
9'3
bunting which is by this article declared to be in
itself and by itself a sufficient protection to that
commerce against capture.
6. It reduces therefore the power of Great
Britain in war by the whole amount of injury
capable of being inflicted on an enemy through
his commerce. And as the amount of injury that
could be inflicted by this means must be in pro-
portion to the maritime strength of the nation
inflicting it—ait follows that, by so much greater as
is the maritime strength of Great Britain than that
of any other nation, by so much greater is the loss
of power which ‘she sustains in comparison with
any other nation.
0. It absolutely destroys the utility of blockade.
For the utility of blockade lies in this, that it
prevents the enemy from trading to and from
receiving supplies through the blockaded ports.
But there is no loss to him in this, and therefore
no pressure exercised by it or utility in it, if at the
same time that his own ports are blockaded—even
though all of them should be—he is able to carry
on his commerce and to receive his supplies through
the most adjacent neutral ports under the protec-
tion of the neutral flag. And by so much greater
as is the blockading strength of Great Britain than
that of any other nation, by so much greater is
the loss of power which she sustains in comparison ‘
with any other nation.
cl. It relieves a belligerent from the necessity of
94
defending his commerce (since it is protected by
the neutral flag), by his fleet, and relieves him,
therefore, from the urgent necessity of sending his
fleet to sea. In a war with a State superior in
naval power it would enable him to keep his fleet
in his ports altogether, conscious as he would be
that with the neutral flag doing its chief work
there would be little but disaster to be looked for
in naval conflict. The greater the disparity of
strength, the greater would be the inducement to
the weaker to avoid conflict on the seas with the
stronger State; and by so much as is the navy of
Great Britain superior to that of any other nation,
so much the more certainly would it lack all oppor-
tunity of naval conflict.
e. It deprives the officers and men of the navy
of all chance of prize-money, and thus not only
removes a great incentive to zeal and activity
among those in the service, but also greatly
diminishes the inducements by which the manning
of the navy may be renewed.
f It exposes the carrying-trade of a belligerent
to the certainty of extinction. For through the
absolute protection afforded by the neutral flag it
must necessarily so operate as to drive all commerce
from belligerent into neutral bottoms?’ And by so
* See Report of the Select Committee on Merchant
Shipping, 1862, evidence of the shipowners, Mr. Allan
Gilmour, Mr. Beazley and Mr. Groves. “ A short time ago,
“ when it was thought England might be involved in the war
95
much. as the carrying-trade of Great‘ Britain is
greater than that of any other nation by so much
greater would be the loss inflicted on her in
war.
9. Finally, it tends to increase the duration 'of
wars by removing from their incidence the com-
merce which furnishes the sinews of war, and by
giving to the neutrals a direct interest in the pro--
longation of a conflict which very greatly increases
their own profits in the carrying-trade.
There are, indeed, those who contend that this
new principle of neutral protection to belligerent
property is not disadvantageous but, on the con-
trary, advantageous to Great Britain. They remind
us that Great Britain is dependent upon sea-borne
commerce for the supplies of a large proportion of
her food and raw produce ; and argue that, there-
fore, she is advantaged by the general prohibition
to touch any commerce under the neutral flag,
since it affords to her commerce protection in time
of war. But it must be remembered that the pro-
tection is only afforded on condition of removing
the commerce from British to foreign vessels, on
“between France and Austria in Italy, however improbable’
“ the rumour might be, yet the moment it reached distant
“ ports—such as Canton or Calcutta—a second-class American
“vessel was able to get freights at a fifty per cent. higher
“ rate than a first-class British ship could obtain.”-—Mr. Hors-
fall, in the House of Commons, 11th March, 1862. See also
Mr. Lindsay’s letter to Lord John Russell of 141 Oct. 1859.
-—Parliamentary Papers, 1859. '
96
condition, that is to say, of excluding British ships
from carrying British trade, and with the effect, as
already has been pointed out, of destroying British
shipping altogether. It offers Great Britain pro-
tection to her merchants only together with and in
exchange for destruction to her shipowners, which
is clearly not advantageous to a country in which the
shipowner with his ships and crews are the very
foundation of the national strength. Moreover,
Great Britain of all countries least needs to receive
from neutral bunting that protection to her com-
merce which in time of war she of all nations is
best able to extend to it‘ by her fleets. The
changes in ships and armaments and the intro-
duction of steam have all left her comparatively
stronger at all points than before those changes
were effected; for she is now more than ever the
leader and mistress in the arts of naval construction,
armaments and machine-engineering, so much so
that the foreign nations have not even learnt yet
to imitate her, but still come to her to purchase
the vessels, the guns and the engines which she
alone can produce. She is far better able *to
convoy her commerce than any other nation, and
far better able also to attack successfully her
enemy’s convoys. The relative disadvantage to
Great Britain, therefore, inflicted by the Declara-
tion of Paris which substituted neutral bunting
for convoying fleets, is as much greater to her than
to any other country as her power to convoy and
97
to attack convoys is greater than that of any other
country with whom she may be at war.
It is said, however, that the commerce of Great
Britain being greater than that of any other
country would be more exposed to attack. That
is no doubt true, yet it implies no relative dis-
advantage, but the contrary. For if the area of
the body exposed to attack is greater, so also is
the strength of the arm to defend it and to attack
_ in turn. If she has more seamen than other
nations it follows that she has more men to fight
as well as to trade on the seas; if more vessels,
then more power to transport those men to the
points where fighting may usefully be done. It is
that very commerce which provides her with men
to fight and supplies to furnish them ; the greater
it is the larger is the recruiting-ground whence the
force is derived to protect it, and to injure the
‘enemy. It has never been pretended that on land
a great populous nation full of able-bodied men
engaged in hardy industrial operations is weaker
than a small and sparsely peopled country, even
though there be more plunder exposed to capture
in the former than in the latter. By surprise the
smaller may snatch a richer prize than the stronger,
but the stronger will assuredly soon wrest that
away and much more with it. In war it is not
rich possessions which count as weakness but
offensive power which counts as strength. No-
body would say that two men would be at a
7
98
disadvantage in a conflict against one, because
they expose two bodies to his blows, and he only
one to theirs ; forthey have two pairs of arms, and
‘he only one. A war in which commerce should
not be protected by neutral bunting from its inci-
’ dents must involve for Great Britain not only the
necessity for defending her own commerce by
arms, but also the power of attacking by arms
her enemy’s commerce. To suppose that she
would lose more than she gains or anything like as
much under such circumstances, is to suppose that
a nation’s strength is the measure not of its power
but of its weakness. She would suffer damage
herself no doubt, but if strength be of any avail at
all she must do far more than she suffered. War
is successful in proportion to the injury inflicted on
the enemy, and we had better entirely ruin him,
even at the cost of half ruining ourselves, than
not ruin him at all. Experience has, however,‘
shown that Great Britain before she had been held
bound by the Declaration of Paris was strong
enough on the seas not only to destroy her enemy’s
commerce, but at the same time to defend and
even to increase her own.’f
‘if The merchant-ships of Great Britain (in 1810) carried
most ‘of the commerce of the world, and in spite of having to '
make head against numerous open enemies and the scarcely
veiled hostility of the Government of the United States—
whose ports remained closed to British ships of war, though
they did not declare war till 1812—England was yet able to
keep down the enemies’ vessels of war and privateers. The
99
Others there are who while they admit that
Great Britain has been placed under a grave
disadvantage by accepting the doctrine that the
neutral flag covers enemy’s goods, declare that
she at the same time gained a compensating and
equivalent advantage in the abolition, so-called,
of Privateering. The Declaration of Paris, they
say, was of the nature of a bargain in which a
valuable right was given for a valuable immu-
nity. But unfortunately for those who so argue,
the terms of the bargain are such that while
every security is afforded that the right shall
not be exercised, no security whatever is given
that the immunity shall be enjoyed. The obli-
gation to allow the neutral flag to cover enemy’s
goods, is an obligation towards all the States
which shall remain neutral during the war, they
profit by it, they have every interest in enforcing
it and every right to resist its infraction. It
is an obligation towards all the world less the
other belligerent, and one which all the world has
a clear right to enforce and a paramount interest
prosperity of the country was steadily on the increase. The
exports from Great Britain and Ireland, which were twenty-
eight millions at the commencement of the war, exceeded
forty-five millions and a half in 1809. The imports which
were twenty-five millions in 1803, were in 1809 thirty millions,
and both imports and exports increased steadily while the
.war lasted, inasmuch that in 1815 the imports had risen to
nearly thirty-two millions, the exports to fifty-seven millions
and a half, and the trade was carried on almost exclusively
in English bottoms—Life of Sir IV. Parker, p. 395.
79!?
100
in enforcing. Not so the obligation to desist from
privateering. In that the belligerent is bound
towards the other belligerent alone, and if he
chooses to break his obligation there is none to
enforce it except that other belligerent, who being
already engaged in levying war upon him is already
doing his worst, and can do no more. The result
is that while there is every security against the
infraction of the one obligation there is every
inducement to the infraction of the other, should
its infraction promise advantage; and that when-
ever Great Britain shall be at war, she will be
exposed at once to suffer all the disadvantage
inflicted by the Declaration, and to reap none of
the advantage said to be afforded by it. That this
is no idle fear is proved by the language of the
Russian press and merchants, who, recently fore-
casting the chances of a war with Great Britain,
openly advised their Government to repudiate the
first rule of the Declaration of Paris and to fit out
privateers against British commerce.
Another set of arguments, if arguments they
can be called, in favour of the Declaration of Paris
is founded upon the change in the conditions of
naval warfare resulting from the employment of
steam and armour. This change it is said places
Great Britain at a disadvantage, as compared with
other nations, in fighting out a great conflict at sea.
It is only necessary to say in answer to this that
Great Britain has profited far more than any other
101
nation by steam and armour ; that all other na-
tions are compelled to take lessons from her in
both, or even to come to her to provide them,
and that, therefore, whatever advantage she may
have had before their introduction is very greatly
increased since.
One advantage, indeed, Great Britain gains
under certain circumstances and in certain times
from the Declaration of Paris. She gains the
carrying-trade of any nations which may be
belligerent and exposed to maritime attack while
she remains neutral. But this gain is very small.
The carrying-trade is already to a large extent
carried on for other nations by British vessels, and
that which she can gain from any one other State is
but a small and comparatively insignificant addi-
tion to that which she already has. What there
is to be gained, however, she gains; but on the
other side of the account must be put that which
she must lose when she herself becomes belligerent.
That loss amounts to the whole of her own carrying-
trade, which is more than all that she could gain
from other nations during a century of wars. And
there is this further about it, that while she may
make an infinitesimally small gain as a neutral in
times of prosperity she 'must sustain an im-
measurably great loss as a belligerent in times
of extremity. There can be no advantage in
this. i
There are indeed some who have not hesitated
102
to'assert that Great Britain would gain-by carrying
still further the renunciation of belligerent mari-
time rights ; and who assert that it would be to
her advantage to accept and adopt the principle
that all “private property” whatever (including even
contraband of war) shall be exempt from capture
at‘sea; that is to say, shall be exempt from all
effects of warfare?‘ This is indeed a logical con-
clusion for those to leap to who feel that the
Declaration of Paris cannot be defended as it
stands; but it is a conclusion none the less
monstrous in itself. Those who advance it may
properly be required to consider the nature of war
and to say how or upon what possible principle
there can be at one and the same time a national
war and a commercial peace; upon what possible
ground exemptions can be claimed for private
property at sea not extended to it on land; and
upon what conceivable theory of the State it
should be required to permit even its own subjects
to supply its enemies with arms and munitions of
war to be used against it. Till these questions
are satisfactorily answered, which they never can
be, it would be idle to discuss the principle of this
proposed new and further innovation. But as
regards the effect such an innovation would have
upon Great Britain, it would be simply this,
that it would abolish maritime warfare altogether.
Even the Declaration of Paris leaves enemy’s
' * Edinburgh Review for October, 1876.
103
property in enemy’s ships liable to capture;
this would relieve it from that liability: even the
Declaration of Paris leaves contraband of war
in neutral ships liable to capture; this would
relieve it from that liability, and we should have
in all wars the monstrous spectacle of soldiers
and sailors destroying each other While their own
fellow-countrymen were furnishing to their enemies
the instruments of their destruction. A State, so
far removed and isolated from other nations, and
so unlikely ever to be at war with them, as to be
able to look for profit alone in their wars without
having to fear any, even the remotest possibility _
of becoming itself involved in war, might perhaps
hold such a condition of things to be advan-
tageous to it; or a purely military State unable
to defend or to carry on its sea-borne commerce
during war might gain by it; but for a maritime
country to agree to it would be the height of
madness. Neither has it ever been seriously pro-
posed by any person of authority in England, or
by any other person except as a desperate attempt
to escape from the consequences of the Declaration
of Paris in its admitted and inevitable effect upon
the British carrying-trade during war.
On a review of the whole matter it must be
evident that Great Britain, so long as she remains
bound by this Declaration, must in any war be
debarred from the exercise of the greater part of
her maritime strength. The knowledge that this
104
is so, materially affects her position in peace, and
deprives her of the weight and authority which
her voice always had so long as it was known
that it was capable of being supported by the
tremendous force which so pre-eminent a maritime
power could bring to bear on the resources of an
enemy.
By all that has preceded it has, I submit, been
abundantly made clear that the principles assumed
to be laid down by the Declaration of Paris in
prohibiting Privateering and the capture of enemy’s
merchandise in neutral bottoms, are novel innova-
tions in and at variance with the Law of Nations;
that the Declaration itself is false both in fact
and in principle; that it possesses no sufiicient
' authority; and that it is so highly injurious to the
interests of Great Britain as to amount to the de-
prival of the greater part of her warlike strength.
This being so it follows that the very first duty
of all British statesmen, who have at heart the
interest and the security of their country, is to
free her. from the paralyzing fetters of this
Declaration. In order to effect this it is necessary
that the Declaration should be openly denounced
and repudiated; for until it is repudiated it must
be held as binding. Its falsity and the Want of
previous authority and subsequent sanction are
not sufficient to allow it to be simply disregarded;
but they are more than suflicient to invite its de-
nunciation and repudiation. A simple announce=
105
ment by diplomatic note to the signatory Powers
would suffice for this; and from the day that Great
Britain simply announces her resumption of the
maritime rights which made her powerful and
kept her secure, from that day and not before it
will she resume her place among the nations of
the earth which are respected because it is known
that they are strong.
APPENDIX A.
HARTWELL HORNE, PAGE 3.
WITH regard to the issuing of letters of marque, the Lord
High Admiral of Great Britain, or the Commissioners
appointed for executing that office, or any three of such
Commissioners, or any persons by them empowered or ap-!
pointed, shall at the request of any duly qualified owner or
owners of any ship or vessel duly registered according to the
directions of the Act passed in the twenty-sixth and thirty-
fourth years of his present Majesty (26 Geo. III. e. 60, and
341 Geo. III. 0. 68) (provided such owner or owners give the
bail or security hereafter specified), cause to be issued in the
usual manner one or more commissions or letters of marque
and reprisal, to any person or persons nominated by such
owner to be commander, or (in case of death, successively)
commanders of such ship or vessel; for the attacking, surpris-
ing, seizing, and taking, by and with such vessel or with the
crew thereof, any place or fortress upon the land, or any ship,
vessel, arms, ammunition, stores of war, goods or merchan-
dise, belonging to or possessed by any of his Majesty’s
enemies, in any sea, creek, haven, or river (13 Geo. II. o. 4:‘,
§ 2; 33 Geo. III. e. 66, § 9 ; 43 Geo. III. e. 160, § 7).
All persons applying for such commissions or letters of
marque must make the application in writing, subscribed with
their hands, to the Lord High Admiral, or other persons thus
empowered, or to the Lieutenant or Judge of the High Court
of Admiralty, or to his surrogate, and such application must
set forth “ a particular, true and exact description of the ship
or vessel for which such commission or letter of marque and
reprisals is requested, specifying the name and burden of such
ship or vessel; what sort of build she is; and the number
and nature of the guns, and what other warlike furniture and
ammunition are on board the same; to what place the ship
107
belongs; and the name or names of the principal owner or
owners of such ship or vessel ; and the number of men in-
tended to be put on board the same (all which particulars
must be inserted in every commission or letters of marque) ;
for what time they are victualled, and also the names of the
commander and officers (33 Geo. III, 0. 66, § 15; 43 Geo.
III, e. 160, § 13. Instructions for letters of marque against the
goods of the French and Batavian Republics, Art. 6. Note——
The Instructions respecting the former were issued on the
17th May, 1803, concerning the letter on June 16th, 1803).
Further, every commander of a private ship or vessel
of war, for which such commission or letters of marque shall
be granted, must produce the same to the collector, customer,
or searcher for the time being, of his Majesty’s customs,
residing at or belonging to the port whence such ship shall
be first fitted out, or to their lawful deputies. And such
collector, customer, &c. shall without fee or reward and
as early as‘conveniently may be inspect and examine the said
vessel; in order to ascertain her build and burden, the
number of men, together- with the number and nature of the
guns on board. If after examination, such vessel appear
to be of such build and burthen, and to be manned and
armed according to the tenor of the description inserted
in the commission or letter of marque ; or if she be of greater
force and burthen than is therein specified; in such case the
collector, &c. or his or their deputies shall immediately upon
the request of the commander of such ship or vessel, give
him gratis a certificate thereof in writing under his or
their hand or hands; and such certificate shall be deemed
a necessary clearance before the vessel or letter of marque
thus commissioned, shall be permitted to sail from that port
(33 Geo. III. e. 66, § 15; 43 Geo. III. e. 160, § 13).
The same statute likewise declares that in case any com-
mander proceed out of port upon a cruize without such
certificate of clearance, or with a force inferior to that specified
in the commission or letter of marque, the latter shall
be absolutely null and void: the commander thus offending
shall be subject to the penalty of £1000, recoverable with
full costs of suit by any person, and shall also be imprisoned
108
for such space of‘ time as the Court shall direct, not exceeding
one year for any one offence (I bidem).
The collector, searcher, &c. or his or their deputies, who
shall grant false certificates, shall for such offence forfeit
their ofiice; be for ever incapacitated from holding office
under Government, and incur a penalty of £100, to be
recovered in a similar manner. One half of the said penalty
when recovered to be paid to the informer; and the other
moiety to the treasurer of the Corporation for the Relief and
Support of the Sick, Maimed, and Disabled Seamen of the
Merchant Service: and if such forfeiture be incurred in any
outport, where a Corporation already is or may hereafter
be established for those purposes, one moiety of the penalty
is to be paid to the trustees for the use of such Corporation
(33 Geo. III. 0. 66, § 16; 43 Geo. III. e. 160, § 14).
Previously however to obtaining letters of marque, bail
must be given with sureties before the lieutenant and judge
of the High Court of Admiralty or his surrogate, in the sum
of £3000 sterling if the ship carry more than 150 men, and if
she carry a less number in the sum of £1500 sterling
(Instructions for letters of marque, 4'0, Art. 15). Further,
such sureties must prior to their being bound severally make
oath before the Judge of the said Court of Admiralty of
England, or Judge of any other Court of Admiralty in any
other part of his Majesty’s dominions, or his or their surro-
gates, that they are respectively worth more than the sum
for which they are to be bound, over and above all their
just debts. And in order to prevent frauds the Marshal of
the Admiralty Court is enjoined to make diligent inquiry into
the sufficiency of such bail and security, and to ‘make report
accordingly to the Judge or his surrogate before any com-
mission or letter of marque can be granted (43 Geo. III.
e. 160, § 12).
No Judge of any Vice-Admiralty Court established in the
West Indian or American colonies can either directly or
indirectly have any share or interest whatever in any privateer
or letter of marque (41 Geo. III. e. 96, § 17). Nor can any
judge, advocate, marshal, proctor, or any other officer of any
Admiralty or Vice-Admiralty Court, either in England or
109
in the Colonies possess any such interest, on pain of forfeiting
his employment and also the sum of £500 to the use of
his Majesty. And all advocates and proctors thus offending
are for ever disqualified from practising their professions
(33 Geo. III. a. 66, § 33; 43 Geo. III. a. 160, § 32).
Letters of marque are always subject to revocation.

APPENDIX B.
LETTERS or MARQUE, on PRIvATEER’s COMMISSION, 1812.
GEORGE the Third by the Grace of God of the United
Kingdom of Great Britain and Ireland King, Defender of
the Faith, to all people to <whom these presents shall come,
greeting. Whereas in consequence of the repeated insults and
provocations which we have experienced from the Government
of France we find ourselves compelled to take such measures
as are necessary for maintaining the honour of our crown and
the just rights of our subjects, and have, therefore, by and
with the advice of our Privy Council, ordered that general
reprisals be granted against the ships, goods and subjects of
the French Republic, so that as well our fleets and ships as
also all other ships and vessels that shall be commissionated
by letters of marque and general reprisals or otherwise shall
- and may lawfully apprehend, seize and take the ships, vessels
and goods belonging to the French Republic or to any persons
being subjects of the French Republic or inhabiting within
any of the territories of the French Republic, and bring the
same to judgment in our High Court of Admiralty of England,
or in any of our Courts of Admiralty within our dominions for
proceedings and adjudication and condemnation to be there-
upon had according to the course of Admiralty and the Laws
of Nations; and whereas by our commission under our
Great Seal of Great Britain, bearing date the 16th day of
May, 1803, we have willed, required and authorized our
Commissioners for executing the office of Lord High Admiral
of our said United Kingdom, or any person or persons by them
110
empowered or appointed to issue forth and grant letters of
marque and reprisals accordingly, and with such powers and
clauses to be therein inserted, and in such manner as by our
said commission more at large appeareth. And whereas our
said Commissioners for executing the office of our High
Admiral aforesaid have thought W. B. fitly qualified who
hath equipped, furnished and victualled a ship called the
, burthen of about tons (here descriptive
particulars are added) and masts, mounted with
carriage guns, carrying shot of pounds weight, and
swivel-guns, and navigated with men, of whom
one-third are landsmen, and belonging to the port of ,
whereof the said W. B. is commander, and that N. N. are
the owners. And whereas the said W. B. hath given suffi-
cient bail and sureties to us in our said High Court of Admi-
ralty according to the effect and form set down in our instruc-
tions made the 17th day of the aforesaid month of May in
the 43rd year of our reign, a copy of which is given to the
said W. B. Know ye therefore that we do by these presents
issue forth and grant letters of marque and reprisals to, and
do license and authorize the said W. B. to set forth in a war-
like manner the said ship called the , under his own
command, and therewith by force of arms to apprehend,
seize, and take the ships, vessels, and goods belonging to the
French Republic, or to any persons being subjects of the
French Republic, or inhabiting within any of the territories
of the French Republic, excepting only within the harbours or
roads of princes and states in amity with us, and to bring the
same to such port as shall be most convenient, in order to
have them legally adjudged in our said High Court of Admi-
ralty of England, or before the Judge of such other Admiralty
Court as shall be lawfully authorized within our dominions,
which being finally condemned, it shall and may be lawful for
the said W. B. to sell and dispose of such ships, vessels, and
goods so finally adjudged and condemned in such sort and
manner as by the course of Admiralty hath been accustomed.
Provided always that the said W. B. keep an exact journal of
his proceedings, and therein particularly take notice of all
prizes which shall be taken by him, the nature of such prizes,
111
the times and places of their being taken, and the values of
them as near as he can judge, as also of the station, motion,
and strength of the French as well as he or his mariners can
discover by the best intelligence he can get, and also of what-
soever else shall occur unto him or any of his officers or
mariners or be discovered or declared unto him or them or
found out by examination or conference with any mariners or
passengers of or in any of the ships or vessels taken or by any
other person or persons or by any other ways and means
whatsoever touching or concerning the designs of the French
or any of their fleets, vessels, or parties and of their stations,
ports and places, and of their intents therein, and of what
ships or vessels of the French bound out or home, or to any
other place, as he or his officers or mariners shall hear of, and
of'what else material in those cases may arrive to his or their
knowledge, of all which he shall from time to time as he shall
or may have opportunity transmit an account to our said Com-
missioners for executing the oflice of our High Admiral afore-
said or their secretary, and keep a correspondence with them
by all opportunities that shall present. And further provided
that nothing be done by the said W. B. or any of his officers,
mariners, or company contrary to the true meaning of our
aforesaid instructions, but that the said instructions shall by
them and each and every of them as far as they or any of
them are therein concerned in all particulars be well and truly
performed and observed. And We pray and desire all kings,
princes, potentates, states, and republics being our friends
and allies and all others to whom it shall appertain to give the
said W. B. all aid, assistance, and succour in their ports with
his ship, company, and prizes without doing or suffering to be
done to him any wrong, trouble, or hindrance We offering to
do the like when we shall be thereunto desired, and We will
and require all our officers whatsoever to give him succour
and assistance as occasion shall require. In witness whereof
we have caused the Great Seal of our said Court to be here-
unto aflixed. Given at London the fifth day of September in
the year of our Lord one thousand eight hundred and twelve,
and in the fifty-second of our reign.
REGISTRAR.
112
APPENDIX C.
INSTRUCTIONS roe PRIVATEERS, 21 JUNE, 1815.
In the name and on the behalf of His Majesty,
GEORGE P. R.
INSTRUCTIONS for the commanders of such merchant ships or
vessels who shall have letters of marque and reprisals for private
men-of-war, against the ships, goods, and subjects of France
by virtue of our commission granted under our Great Seal
of our United Kingdom of Great Britain and Ireland, bearing
date the twenty-first day of June, one thousand eight hundred
and fifteen. Given at our Court at Carlton House the
twenty-first day of June, one thousand eight hundred and
fifteen, in the fifty-fifth year of our reign.
ARTICLE I.——That it shall be lawful for the commanders of
ships, authorized by letters of marque and reprisals for
men-of-war, to set upon by force of arms and subdue and
take the men-of-war, ships, and vessels, goods, wares, and
merchandises belonging to France, or to any persons being
subjects of France, or inhabiting within any of the territories
of France, saving always such exceptions as we shall at any
time or times hereafter be pleased to declare; but so as that
no hostility be committed, nor prize attacked, seized or taken
within the harbours of princes and states in amity with Us, or
in their rivers or roads, within the shot of their cannon, unless
by permission of such princes or states, or of their oom—
manders or governors-in-chief in such places.
II.——That the commanders of the ships and vessels so
authorized as aforesaid shall bring all ships, vessels, and
goods which they shall seize and take into such port of this
our realm of England, or some other port of our dominions as
shall be most convenient for them, in order to have them
legally adjudged in our High Court of Admiralty of England,
or before the Judge of any other Admiralty Court lawfully
authorized within our dominions.
113
IIL—That after such ships, vessels, and goods shall be
taken and brought into any port, the taker, or one of his
chief officers, or some other person present at the capture,
shall be obliged to bring or send as soon as possibly may be
three or four of the principal of the company (whereof the
master, supercargo, mate, or boatswain, to be always two) of
, every ship or vessel so brought into port before the Judge of
our High Court of Admiralty of England, or his surrogate,
or before the Judge of such other Admiralty Court within our
dominions lawfully authorized as aforesaid, or such person or
persons as shall be lawfully commissioned in that behalf, to be
sworn and examined upon such interrogatories as shall tend
to the discovery of the truth concerning the interest or pro-
perty of such ship or ships, vessel or vessels, and of the
goods, merchandises, and other effects found therein; and
the taker shall be further obliged at the time he produceth
the company to be examined, and before any monition shall
. be issued to bring and deliver into the hands of the Judge of
the High Court of Admiralty of England, his surrogate, or
Judge of such other Admiralty Court within our dominions
lawfully authorized, or others commissioned as aforesaid, all
such papers, passes, sea briefs, charter parties, bills of lading,
cockets, letters, and other documents and writings, as shall
be‘ delivered up or found on board any ship ; the taker or one
of his chief officers, or some other person who shall be present
at the capture, and saw the said papers and writings delivered
up, or otherwise found on board at the time of the capture,
making oath that the said papers and writings are brought
and delivered in as they were received and taken, the same
being first numbered and the number specified in the affidavit
without any fraud, addition, subduction, or embezzlement, or
otherwise accounting for the same upon oath to the satisfac-
tion of the Court.
IV.—That the ships, vessels, goods, wares, merchandises,
and effects, taken by virtue of letters of marque and reprisals
as aforesaid, shall be kept and preserved, and no part of them
shall be sold, spoiled, wasted, or diminished; and that the
bulk thereof shall not be broken, before judgment be given in
the High Court of Admiralty of England, or some other
8
114
Court of Admiralty lawfully authorized in that behalf, that
the ships, goods, and merchandises are lawful- prize.
V.—-That if any ship or vessel belonging to Us or our sub-
jects, shall be found in distress by being in fight, set upon,
or taken 7 by the enemy, or by reason of any other accident,
‘the commanders, oflicers, and company of such merchant ships
‘or vessels as shall have letters of marque and reprisals as
aforesaid, shall use their best endeavours to give aid and
‘succour to all such ship and ships ; and shall, to the utmost
of their power, labour to free the same from the enemy, or
‘any other distress.
‘ VL—That the commanders or owners of such ships and
vessels, before the taking out letters of marque and reprisals,
shall make application in writing, subscribed with their hands,
to our High Admiral of our United Kingdom of Great
Britain and Ireland, or our commissioners for executing that
oflice for the time being; or the lieutenant or judge of the
said High Court of Admiralty, or his surrogate, and shall
therein set forth a particular, true, and exact description of
the ship or vessel for which such letter of marque and reprisal
is requested, specifying the burden of such ship or vessel, and
the number and nature of the guns, and what other warlike
furniture and ammunition are on board the same; to what
place the ship belongs, and the name or names of the principal
owner or owners of such ship or vessels, and the number of
men intended to be put on board the same, and for what time
they are victualled, also the names of the commanders and
officers.
VII.-- That the commanders of ships and vessels having
letters of marque and reprisals, as aforesaid, shall hold and
keep, and are hereby enjoined to hold and keep, a corre_
spondence by all conveniences, and upon all occasions, with
our High Admiral of our United Kingdom of Great Britain
and Ireland, or our Commissioners for executing that office
for the time being, or their secretary, so as from time to time
to render and give him- or them not only an account or intelli-
gence of their captures'and proceedings by virtue of such com.
mission, but also of whatever else shall occur unto them, or
be discovered and declared unto them, or found out by them,
115
or by examination of, or conference with, any mariners or
passengers of, or in the ships or vessels taken, or by any other
ways or means whatsoever touching or concerning the designs
of the enemy, or any of their fleets, ships, vessels, or parties,
and of the stations, sea-ports, and places, and of their intents
therein; and of what ships or vessels of the enemy bound out
or home, or where cruising, as they shall hear of ; and of
what else material in these cases may arrive at their know-
ledge, to the end that such course may be thereon taken and
such orders given as may be requisite.
VIII—That no commander of any ship or vessel having a
letter of marque and reprisal as aforesaid, shall presume, as
they will answer it at their peril, to wear any jack, pennant,
or other ensign, or colours usually borne by our ships ;_ but
that, besides the colours usually borne by merchant ships,
they do wear a red jack, with the Union Jack described in
the canton at the upper corner thereof near the staffs.
lX.—That no commander of any ship or vessel, having a
letter of marque and reprisal as aforesaid, shall ransom, or
agree to ransom, or quit, or set at liberty, any ship or vessel,
or their cargoes, which shall be seized and taken.
X.—That all captains or commanders, oflicers of ships,
having letters of marque and reprisals, do send an account of,
and deliver over, what prisoners shall be taken on board any
prizes, to the commissioners appointed, or- to be appointed for
the exchange of prisoners of war, or the persons appointed in
the sea-port towns to take charge of prisoners; and that such
prisoners be subject only to the orders, regulations, and direc-
tions of the said commissioners; and that no commander or
other ofiicer of any ship having a letter of marque and reprisal
as aforesaid do presume, on any pretence whatsoever, to ran-
som any prisoner.
XI.-——That in case the commander of any ship having a
letter of marque and reprisals as aforesaid, shall act contrary
to these instructions, or any such further instructions of which
he shall have due notice, he shall forfeit his commission to all
intents and purposes, and shall, together with his bail, be pro-
ceeded against according to law, and be condemned in costs
and damages.
116
XIL—That all commanders of ships and vessels having
letters of marque and reprisals shall, by every opportunity,
send exact copies of their ournals to the Secretary of the Ad‘-
miralty, and proceed to ‘the condemnation of their prizes as
soon as may be and without delay. '
XIII.-—-That the commanders of ships and vessels having
letters of marque and reprisals shall, upon due notice being
given to them, observe all such other instructions and orders
as we shall think fit to direct from time to time for the better
carrying on this service. '
XIV.-—-That all persons who shall violate these or any other
of our instructions shall be severely punished, and also re-
quired to make full reparation to persons injured contrary to
our instructions for all damages they shall sustain by any
capture, embezzlement, demurrage, or otherwise.
XV .-—That before any letter of marque or reprisal for
the purposes aforesaid shall issue under seal, bail shall be
given with sureties before the Lieutenant and Judge of our
High Court of Admiralty of England or his surrogate, in the
sum of three thousand pounds sterling if the ship carries above
one hundred and fifty men; and if a less number, in the sum
of fifteen hundred pounds sterling; which bail shall be to the
effect and in the form following :—
Which day, time, and place personally appeared
and who submitting themselves to the jurisdiction
of the High Court of Admiralty of England, obliged them-
selves, their heirs, executors, and administrators unto our
sovereign lord the king, in the sum of pounds of
lawful money of Great Britain to this effect, that is to say,
That whereas is duly authorized
by letters of marque and reprisals, with the ship called the
of the burden of about tons,
whereof he, the said ~> goeth master, by force
of arms to attack, surprise, seize, and take all ships and
‘vessels, goods, wares, and merchandises, chattels, and effects,
belonging to France, or to any persons being’ subjects of
France, or inhabiting within any of the territories of France,
saving always such exceptions as his Majesty may at any time
or times hereafter be pleased to‘ declare, excepting only within
117
the harbours or roads within shot of the cannon of princes and
states in amity with his Majesty; and whereas he, the said
hath a copy of certain instructions, approved
of and passed by his Majesty in council, as by the tenor of the
said letters of marque and reprisals and instructions thereto,
relating more at large appeareth. If
therefore nothing be done by the said
or any of his officers, marines or com-
pany, contrary to the true meaning of the said instructions
and of all other instructions which may be issued in like
manner hereafter, and whereof due notice shall be given him ;
but that such letters of marque and reprisals aforesaid, and
the said instructions shall in all particulars be well, and duly
observed and performed, as far as they shall the said ship,
master and company, any way concern; and if they shall
give full satisfaction for any damage or injury which shall be
done by them or any of them, to any subjects of his Majesty,
or of any foreign state in amity with his Majesty; and
also shall duly and truly pay or cause to be paid to his
Majesty, or the customers or officers appointed to receive
the same for his Majesty, the usual customs due to his
Majesty of and for all ships and goods, so as aforesaid taken
and adjudged for prize—~And moreover, if the said
shall not take any ship or vesshl, or any goods or
merchandise belonging to the enemy or otherwise liable to
confiscation, through consent or clandestinely, or by collu-
sion, by virtue, colour, or pretence, of his said letters of
marque and reprisals, that then this bail shall be void and
of _none effect; and unless they shall so do, they do all
hereby severally consent that execution shall issue forth
against them, their heirs, executors, and administrators,
goods and chattels, wheresoever the same may be found, to
the value of the sum of pounds before mentioned.
And in testimony of the truth thereof, they have hereunto
subscribed their names.
By command of His Royal Highness the Prince Regent,
in the name and on the behalf of His Majesty.
(Signed). SIDMOUTH.
11's
APPENDIX D.
AMERICAN PRIVATEERS.
Notes on Henry Wheaton’s Digest of the Law of Maritime
Captains and Prizes. Original edition, New York,
1815.
Page 42. By the Act of Congress of 1812, concerning
letters of marque, prizes and prize-goods, it is provided that
before any commission of letters of marque and reprisal
shall be issued, the owner or owners of the ship or vessel for
which the same shall be requested by the commander for the
time being, shall give bond to the United States with at
least two responsible sureties, not interested in such vessel in
the penal sum of 5000 dollars ; or, if such vessel be provided
with more than 150 men, then in the penal sum of 10,000
dollars; with condition that the owners, oflicers and crew,
who shall be employed on board such commissioned vessels
shall and will observe the treaties and laws of the United
States, and the instructions which shall be given them accord-
ing to law for the regulation of their conduct ; and will satisfy
all damages and injuries which shall be done or committed
contrary to the tenor thereof by such vessel, and to deliver
up the same when revoked by the President of the United
States.
Page 415. By the law of the United States, it is enacted
that if any citizen shall, within the territory or jurisdiction
of the United States accept and exercise a commission to
serve a foreign prince or state in war, by land or sea, the
person so offending shall be guilty of a high misdemeanour,
and shall be fined not more than 2000 dollars, and shall be
imprisoned not exceeding three years. And it is likewise
provided that if any person shall within any of the ports,
harbours, bays, rivers, or other waters of the United States
fit out and arm, or attempt to fit out and arm, or procure to
be fitted out and armed, or shall knowingly be concerned in
the fitting out and arming of any ship or vessel, with intent
119
that such ship or vessel shall be employed in the service of
any foreign prince or state, to cruize or commit hostilities
upon the subjects, citizens or ‘property of another foreign
prince or state, with whom the United States are at peace, or
shall issue or deliver a commission within the territory or
jurisdiction of the United States for any ship or vessel, to the
intent that she may be employed as aforesaid, every such
person so offending shall upon conviction be adjudged guilty
of a high misdemeanour, and shall be fined and imprisoned
at the discretion of the Court in which the conviction shall
be had, so as the fine to be inflicted shall in no case be more
than 5000 dollars, and the term of imprisonment shall not
exceed three years, and every such ship or vessel with her
tackle, apparel, and furniture, together with all the materials,
arms, ammunition, and stores which may have been pro-
cured for the building and equipment thereof shall be
forfeited, one-half to the use of any person who shall give
information of the offence, and the other half to the use of the
United States. And by a subsequent Act, it is also provided
that if any citizen of the United States shall, without the limits
of the same, fit out or procure to be fitted out, or knowingly
be concerned in the fitting out of a privateer for the purpose
of cruizing against the subjects of a nation at amity with the
United States or shall take the command or serve on board
of such privateer, or purchase any interest in the same, he
shall be adjudged guilty of a high misdemeanour and be
punished by a fine not exceeding 10,000 dollars and impri-
sonment not exceeding ten years.
THE END.

1H: .. ii iii’,
ili