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​BELLIGERENT RIGHT
ON THE
HIGH SEAS,
SINCE 1856.
TWISS.
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JX
5211
797
A 454784
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LIBRARY
1837
VERITAS
SCIENTIA
OF THE
UNIVERSITY OF MICHIGAN
E-PLURIBUS-UNUM
LBOR
SI-QUAERIS PENINSULAM AMOENAM
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5.1.2.1.
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5211
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1


•
BELLIGERENT RIGHT
ON
THE HIGH SEAS,
SINCE THE
DECLARATION OF PARIS (1856).
BY
SİR TRAVERS TWISS, D.C.L., F.R.S.,
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW AND
ONE OF HER MAJESTY'S COUNSEL.
LONDON:
BUTTERWORTHS, 7, FLEET STREET,
Law Publishers to the Queen's most excellent Majesty.
1884.
PRICE HALF-A-CROWN.

98
A

2 6 2 4 E
BELLIGERENT RIGHT
ON
THE HIGH SEAS,
SINCE THE
DECLARATION OF PARIS (1856).
BY
SIR TRAVERS TWISS, D.C.L., F.R.S.,
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW AND
ONE OF HER MAJESTY'S COUNSEL.
LONDON:
BUTTERWORTHS, 7, FLEET STREET,
Law Publishers to the Queen's most excellent Majesty.
1884.
PRICE HALF-A-CROWN.
1
LONDON:
PRINTED BY PEWTRESS & Co.,
Steam Printing Works,
28, LITTLE QUEEN STREET, LINCOLN'S INN FIELDS, W.C.
1
1
7-8
dair
ON BELLIGERENT RIGHT ON THE HIGH SEAS,
SINCE THE DECLARATION OF PARIS (1856).
A Generation of Statesmen has passed away since the
Plenipotentiaries of the Seven Powers, who took part in
the Congress of Paris of 1856, agreed upon a Declaration
respecting Maritime Law, the motive of which was a desire
to render war, as a state of international relations, as little
onerous as possible to neutrals. The object of the Powers,
as expressed in the preamble of the Declaration, was to
establish an uniform doctrine on certain points, on which
the uncertainty of the Law and of the duties resulting
therefrom gives rise to differences of opinion between belli-
gerents and neutrals, that may occasion serious difficulties
and even conflicts between them. Their first Resolution
accordingly was to declare Privateering (La Course) to be
abolished. Their second and third Resolutions restricted
the belligerent right of interference with neutral commerce
to cases where that commerce was materially sustaining the
enemy's defence. The fourth Resolution declared that
blockades in order to be binding must be effective. The
Signatory Powers on this occasion undertook to invite the
States, which had not taken part in the Congress, to accede
to the Declaration. Of the States so invited, two States
only of the first rank as Maritime Powers declined to
accede to the Declaration. The United States of America
were unwilling to adhere to the first Resolution unless the
Powers would go one step further and apply the principle
of inviolability to all private property on the High Seas.
Spain on the other hand objected absolutely to the abolition
of Privateering, and on the same grounds, Mexico, Vene-
zuela, New Granada, Bolivia and Uruguay have not given
4
their adhesion to the Declaration. In pursuance therefore
of the concluding paragraph of the Declaration, the Reso-
lutions of the Signatory Powers are not binding upon the
Powers above-mentioned, which have not acceded to it.
It should be observed that the Declaration of Paris has
not made the non-observance of its provisions an offence
against the Law of Nations. The Declaration is, in fact,
nothing more than a solemn pledge on the part of the
States, which have signed or adhered to it, that they will
mutually observe its provisions in their relations towards
one another. They have not undertaken to enforce its pro-
visions against the States, which may decline to adhere to
them, although they have agreed in a Protocol of their pro-
ceedings, subsequent to the signing of the Declaration, not
to enter for the future into any arrangement on the appli-
cation of the Right of Neutrals, in time of war, that does
not at the same time rest upon the four principles, which
are the object of the said Declaration. On the other hand
they remain perfectly free to extend the benefit of the
Declaration to neutrals in a war against an enemy, who
has not become a party to it. In fact, it may be a question
- as we shall presently consider more carefully, whether they
are not under an obligation in such a war to allow to such
neutrals as have acceded to it the full benefit of its provi-
sions as regards their commerce on the High Seas.
Since the Deliberations of the Congress of Paris were
brought to a close, no less than eight great wars have inter-
rupted the peaceful course of the world's history. The
majority of those wars have been confined to Europe, and
have but slightly interfered with neutral commerce on the
High Seas, having been directed mainly to the movements
of armies on land with a view to the aggrandisement or
adjustment of territory. The war, for instance, of France
and Sardinia as allies against Austria in 1859 terminated in
the cession of Lombardy on the part of Austria to France,
5
and its transfer by France to Sardinia. The Sleswig-
Holstein War of 1864 terminated in the King of Denmark
renouncing his sovereignty over the Duchies of Sleswig and
of Holstein, and likewise over the Duchy of Lauenberg, all
of which Duchies have subsequently passed under the
dominion of Prussia. The Austro-Italian war of 1866 ended
in Austria ceding her Lombardo-Venetian Provinces to the
Emperor of the French, who tranferred them to the King of
Italy. The Austro-Prussian war of the same year terminated in
the withdrawal of Austria with her German possessions from
the Germanic Confederation. The Franco-German war of
1870 ended in the renunciation on the part of France of
her sovereignty over Alsace and part of Lorraine in favour
of the German Empire. The Russo-Turkish war of 1878
terminated in the severance of the Kingdoms of the Lower
Danube from the Ottoman Empire, and in the cession by
Turkey of Batoum and other territory on the coast of the
Black Sea to Russia. There was little or no occasion to
call for any interpretation of the Resolutions of the Congress
of Paris as regards the incidents of these six wars, except
in the case of the Franco-German war. In the wars of 1866
both Prussia and Italy were of one mind with Austria in not
interfering in any way with commerce on the High Seas,
even in the case of enemy merchant vessels. On the other
hand, in the war between France and Germany in 1870, the
King of Prussia issued an Ordinance to exempt all enemy
merchant vessels from capture on the High Seas on condi-
tion of reciprocity on the part of France, but as France
thought it more for her interest to exercise the right of capture
under the General Law of Nations against enemy merchant
vessels, the King of Prussia revoked his Ordinance. Some
discussion however arose in the course of this war as to the
proper interpretation to be given to the first Resolution of
the Seven Powers, according to which Privateering (La
Course) was declared to be abolished, and likewise as to
E
6
whether "Coal" was to be accounted an article contra-
band of war within the intent of the Second and Third
Resolutions of the Powers. On the subject of an effective
blockade no occasion arose in the course of the above
six wars, as far as we are aware, to consider the novel defi-
nition of such a blockade as agreed upon by the Powers in
1856, and accordingly it may be justly said that the precise
interpretation to be given to the Fourth Resolution is
res integra as far as the six wars above mentioned are con-
cerned.
Mr. Dana in his edition of Wheaton's Elements of Inter-
national Law, p. 610, has observed in a note upon the
second Resolution of the Declaration of Paris, that "if a
nation party to the Declaration is at war with one that is
not, the former is not bound to abandon its right to take
enemy's goods from vessels of neutral nations, which are
parties to the Declaration, and as the stipulation is made
not from any doubts that as between belligerents only
such captures are the natural and proper results of war,
but for the benefit of neutrals vexed thereby, all parties to
the Declaration, when they are neutral, are in danger of
losing the benefits of it." The conclusion, at which Mr. Dana
arrives, seems to be insufficiently warranted, if the circum-
stances which led to the Declaration of Paris are taken into
account, seeing that the Declaration of the Seven Powers
assembled in Congress was simply a confirmation on their
part of a Reform in the practice of Maritime warfare, which
had been inaugurated by France and Great Britain in 1854
under a mutual agreement with respect to neutrals in a war
against an enemy who was no party to the agreement. A
memoir read by M. Drouyn de Lhuys before the French
Academy on 4th April, 1868, may be cited in illustration of
the views upon which France and Great Britain acted in
1854. His Excellency, who was Minister of Foreign Affairs
in Paris in 1854, and who in that capacity initiated the mutual
7
compromise between France and Great Britain, which was
subsequently embodied in the second and third Resolutions
of the Declaration of 1856, thus expresses himself :-" The
system inaugurated by the war of 1854 responded so well to
the common wants of all countries, that it took without
difficulty the character of a definitive Reform of Inter-
national Law. At the Congress of Peace assembled in
Paris in 1856, the Plenipotentiaries, whose mission it was
to consecrate the results of the war, found themselves
naturally led to comprise in it the confirmation of the
Rules, which had been observed by the Belligerent Powers
with regard to Neutrals. This was the object of the
Declaration of Paris of 1856.*
Mr. Dana does not appear to have been aware at the
time when he so interpreted the Declaration of Paris, that
France and Great Britain, the two Powers with whom the
Declaration originated, had in practice put an interpreta-
tion on the second and third Resolutions, which is calculated
to relieve all neutrals, who have adhered to the Declaration
of Paris, from all risk of losing the benefit of their adherence
to it under the circumstances contemplated by Mr. Dana.
For instance, in anticipation of a joint war against China,
which Power has not acceded to the Declaration of Paris,
France and Great Britain as allies in the event of war,
issued each of them an ordinance "as to the observance
of the Rules of Maritime Law under the Declaration of
the Congress of Paris of 1856 towards the vessels and
* "Le Système inauguré par la guerre de 1854 répondait si bien à des besoins
communs à tous les peuples, qu'il prit sans difficulté le caractère d'une réforme
définitive du Droit International. Au Congrès de Paix réuni à Paris en 1856,
les Plénipotentiaires, qui eurent pour mission de consacrer les résultats de la
guerre, se trouvèrent naturellement amenés à y comprendre la confirmation
des rêgles qui avaient été observées par les Puissances belligérantes à l'égard
des neutres."-Les Neutres pendant la guerre d'Orient, par son Excellence M.
Drouyn de Lhuys. Mémoîre lu à l'Académie des Sciences Morales et
Politiques, dans la Séance du 4 Avril, 1868, p. 40, Paris, 1868.
•
8
goods of the enemy and of neutral Powers." The British
Order in Council of 7th March, 1860, will be found in
Vol. XI. of Sir Edward Hertslet's Treaties, p. 110.* Under
that Order it is provided that so far as regards ships of any
neutral Power, the flag of any such Power shall cover the
enemy's goods with the exception of contraband of war, and,
further, that neutral goods with the exception of contra-
band of war shall not be liable to capture under the
enemy's flag by reason only of the said goods being under
the enemy's flag. That this in the opinion of France and
Great Britain is the due interpretation of the second and
third Resolutions of the Declaration is confirmed by the
language of the preamble of the above Order in Council,
which states that it was the desire of the two Allied
Powers to act in the event of war in strict conformity
with the Declaration of Paris. A further instance
is forthcoming to the same effect in the instructions
issued by the Republics of Chili and of Peru to their
cruizers in 1865. Both of these Republics have acceded to
the Declaration, but Spain, against which Power they were
both engaged in war in 1865, has not given her adherence to
the Declaration. Nevertheless the Governments of the
above Republics issued identical instructions to their
cruizers not to seize Spanish goods on board of neutral
vessels, nor neutral goods on board of Spanish vessels,
except in cases where such goods were contraband of war,
thereby adopting the same interpretation of the second and
third Articles of the Declaration, which Great Britain and
France had announced in contemplation of a war against
China in 1860. A still further instance is forthcoming in
the French Instructions of 25th July, 1870, during the war
with Prussia 1870-71, when the principles of the Declaration
were declared to be applicable to Spain and the United
A decision to the same effect was published by the Emperor of the French
on 28th March, 1860.
9
States, notwithstanding those Powers had not adhered to
the Declaration of Paris.
(6
The two points in the Declaration upon which, as already
remarked, considerable light has been thrown during the
Franco-German war of 1870, are the interpretation that is
to be given to the term "La Course," which occurs in the
first Resolution, and likewise the interpretation to be given
to the term Contraband of War," which occurs in the
second and third Resolutions. The phrase "La Course "
dates from a period, when it was the practice of States, when-
ever there was occasion to have recourse to an armed
expedition on the high seas against another State, to grant
Letters of Marque to the commanders of private cruisers,
authorising them to make reprisals against the vessels and
cargoes of the subjects of the other State. By-and-by Com-
missions of War come to be issued by Sovereign Princes
to private ships fitted out either by their own subjects, or by
the subjects of other Powers, so that it was competent for
a Power which had no public ships of war of its own to
harass the commerce of its enemy by issuing Letters of
Marque and Reprisals not merely to vessels of its own
subjects, but to the vessels of the subjects of other Powers,
and when Commissions of War came to be granted to both
classes of such vessels in the Sixteenth Century, they had
lawful authority to exercise belligerent rights against
neutrals as well as against the enemy. It can well be
imagined, as the crews of such ships were brought together
by the prospect of plunder, and were under no naval
discipline, that, when a single corsair or privateer hove
in sight on the high seas, it caused a greater terror to a
neutral merchant ship than a fleet of Public ships of war.
In the present century however as the practice of States in
entrusting their defence on land to regiments of foreign
origin serving them for pay has generally been discarded,
so the practice of granting commissions of war to the
Bor M
ΙΟ
subjects of foreign States, serving for plunder, has fallen
into disrepute, to say nothing of the license of maritime.
warfare so conducted being intolerable to the civilisation
of the present age. That a main object, which the two
Allied Powers in the war of 1854 against Russia had in view,
was to put an end to the practice of belligerents issuing
Letters of Marque and Reprisals to the subjects of neutral
States, is confirmed by the Memoir of M. Drouyn de Lhuys,
already mentioned.
It
What influenced especially the English Government
was the fear of America inclining against us, and
lending to our enemies the co-operation of her hardy
volunteers. The Maritime population of the United States,
their enterprising marine, might furnish to Russia the
elements of a fleet of privateers, which attached to its
service by Letters of Marque and covering the seas with
a network would harass and pursue our commerce even
in the most remote waters. To prevent such a danger
the Cabinet of London held it of importance to conciliate
the favourable disposition of the Federal Government.
had conceived the idea of proposing to it at the same time
as to the French Government and to all the Maritime States,
the conclusion of an arrangement, having for its object the
suppression of privateering, and permitting to be treated as
a Pirate every one, who in time of war should be found
furnished with Letters of Marque. This project, which was in
the end abandoned, is evidence of the disquiet felt by England.
We thought, as they did, respecting privateering, a bar-
barous practice which marked too often, under an appear-
ance of patriotic devotion, violence excited by the allure-
ment of lucre. At former epochs, justified by the fury of
war, it was able in the midst of numerous iniquities, to give
rise to some heroic action, to transmit even to history some
glorious names. But we considered it to be incompatible
henceforth with the usages of civilized nations, which
II
cannot allow private persons to be armed with the rights
of war, and which reserve their terrible application to the
public power of Established States.* "
Such was the object in view of the Allied Powers in the
war against Russia, according to the highest authority. We
find also a statement from the same authority, namely, the
French Minister for Foreign Affairs, in his Report† to the
Emperor of the French, of 29th March, 1854, that the
motive of the Allied Powers was to mitigate the disastrous
effects of war upon the commerce of neutral nations and to
relieve it from all unnecessary shackles, and accordingly
the Emperor of the French published a Declaration at the
conclusion of which he announced that he had no intention.
to deliver "Lettres de Marque pour autoriser les arme-
ments en Course." On the other hand the British Govern-
ment issued a corresponding Declaration on 28th March,
Ce qui touchait particulièrement le Gouvernement Anglais, c'était la crainte
de voir l'Amérique incliner contre nous et prêter à nos ennemis le concours
de ses hardis volontaires. La population maritime des Etats Unis, leur marine
entreprenante, pouvaient fournir à la Russïe les éléments d'une flotte de corsaires,
qui, attachés à son service par des lettres de marque, et couvrant les mers
comme d'un réseau, harceleraient et poursuivraient notre commerce jusque
dans les parages les plus reculés. Pour prévenir ce danger, le Cabinet de
Londres tenait beaucoup à se concilier les bonnes dispositions du Gouvernement
Fédéral. Il avait conçu l'idée de lui proposer, en même temps qu'au Gouverne.
ment Français et à tous les Etats Maritimes, la conclusion d'un arrangement
ayant pour but la suppression de la course et permettant de traiter comme
pirate, quiconque en temps de guerre serait trouvé muni de lettres de marque.
Ce projet, qui fut abandonné dans la suite, témoigne de l'inquiétude éprouvée
par les Anglais. Nous pensions comme eux sur la course, pratique barbare, qui
masquait trop souvent sous une apparence de dévouement patriotique la
violence excitée par l'appât du lucre. A des époques antérieures, justifiée
par l'acharnement des guerres, elle avait pu du sein des nombreuses iniquités
faire jaillir quelques actions heroïques, transmettre même à l'histoire quelques
noms glorieux. Mais nous la considérions comme incompatible désormais avec
les usages des nations civilisées, qui ne peuvent souffrir que des particuliers
soient armés des droits de la guerre, et qui en réservent les redoutables
applications aux pouvoirs publics des Etats Constitués.-P. 14.
† British and Foreign State Papers, XLVI., p. 243.
12
1854, announcing that it was not the intention of the Queen
of the United Kingdom to issue Letters of Marque for the
commissioning of privateers.
No occasion for the interpretation of the first article of
the Declaration of Paris of 1856 arose in its application to
a war, in which both the belligerent parties were signatories
of that Declaration, before the Franco-German war of 1870,
when the Prussian Government issued a Decree (24th July,
1870), relating to the Constitution of a Volunteer Naval
Force. Under that Decree the King of Prussia invited all
German Seamen and Shipowners to place themselves and
their forces and ships suitable thereto at the service of the
Fatherland. The officers and crews were to be enrolled by
the owners of the ships and were to enter into the Federal
Navy for the continuance of the war, and to wear its
uniform and badge of rank, to acknowledge its competence
and to take an oath to the Articles of War. The ships
were to sail under the Federal Flag and to be armed
and fitted out for the service allotted to them by the
Federal Royal Navy. The ships destroyed in the service of
their country were to be paid for to their owners at a price
taxed by a Naval Commission, and a sum was to be paid
by the State as a deposit, when the ships were placed at
the service of the State, which, at the end of the
war, when the ships were restored to the owners,
was to be reckoned
reckoned as hire. The French Govern-
ment, regarding the institution by Prussia of a volunteer
naval force as the revival of privateering under a disguised
form, lost no time in calling the attention of the British
Government to the Royal Prussian Decree, as instituting an
auxiliary marine contrary to Prussia's engagements under
the Declaration of 1856. Earl Granville, on behalf of the
British Government, referred the matter to the Law
Officers of the Crown, and in accordance with their
opinion returned for answer, "that there was a substantial
13.
difference between the proposed Naval Volunteer Force
sanctioned by the Prussian Government and the system of
Privateering which, under the designation of‘La Course,'
the Declaration of Paris was intended to suppress, inasmuch
as the vessels referred to in the Royal Prussian Decree
would be for all intent and purposes in the service of the
Prussian Government, and the crews would be under the
same discipline as the crews on board vessels belonging
permanently to the Federal Navy." Upon these considera-
tions the British Government could not object to the
Decree of the German Government as infringing the
Declaration of Paris.*
There is not an unanimity of opinion amongst text
writers on International Law on the subject of this Prussian
Auxiliary Marine, as to whether its institution was in con-
flict with the Declaration of Paris or not. M. Charles
Calvo, Ancien Ministre, considers that vessels equipped in
accordance with the Prussian Decree may be regarded as
privateers of an aggravated character, seeing that the
owners are not required to give security for their good
conduct; † and Mr. W. E. Hall, in his recent work on Inter-
national Law, p. 455,‡ observes that "unless a Volunteer
Navy could be brought into closer connection with the
State than seems to have been the case in the Prussian
project, it would be difficult to show that its establishment
did not constitute an evasion of the Declaration of Paris."
But neither of these eminent publicists seem to have
given sufficient weight to the provisions of the Prussian
Decree, under which the officers and crew were required to
enter into the Federal Navy for the continuance of the
* British and Foreign State Papers, LXI., p. 692. Perels. Manuel
de Droit Maritime International, p. 195. Paris, 1884.
+ Le Droit International. Troisième Edition. Tome Troisième, p. 303.
Paris, 1880.
International Law. Oxford, at the Clarendon Press. 1880.
14
war, were to wear its uniform and to take an oath to the
Articles of War. Further, the vessels were to be fitted out
by the State, and were to sail under the Public Flag of the
State.
On the other hand, Professor Geffcken, in his recent
edition of Heffter's Droit International de l'Europe
(Paris, 1883), p. 278, and Dr. Charles de Boeck in his
masterly treatise on Enemy's Property under an Enemy's
Flag, have recognised a broad distinction between such
an auxiliary force, which under the Royal Decree was
intended to be employed solely against the enemy, and
privateers, which may be of no matter what nationality,
and whose main object it has always been to prey upon
neutral commerce, keeping up the worst traditions of
private warfare under cover of Letters of Marque.
should be observed that the Prussian Government never
gave practical effect to the Royal Decree on this subject,
and that no vessel of the "Seewehr," as instituted in 1870,
ever put to sea. (Staats Archiv., 4,345, 4,346.)
It
The other point upon which some indirect light has been
thrown in the course of the Franco-German war is the
interpretation to be given to the exception in the second
and third Articles of the Declaration as regards contraband
of war. On the occasion above-mentioned of the institu-
tion of the Prussian Seewehr, the French Government
raised the question whether such an institution would not
be at variance with the first Article of the Declaration of
Paris. But the Prussian Government had previously raised
a question as to whether Great Britain was observing an
honest neutrality in allowing English vessels to be char-
tered at Newcastle to provision the French fleet in the
North Sea with coal, and further, as may be inferred from
a despatch of Earl Granville, of August 3, 1870, to Lord
* De la Propriété Privée Ennemie sous Pavillon Ennemi. Paris. 1882.
15
A. Loftus, at Berlin,* had demanded that Great Britain
should not only forbid, but absolutely prevent the exporta-
tion of articles contraband of war, and that she should
keep such a watch upon her ports as to make it impossible
for such articles to be exported from them. "It requires,"
Earl Granville writes in reply, "but little consideration to be
convinced that this is a task which a neutral nation can
hardly be called upon to perform. Different nations take
different views at different times as to what articles are to
be ranked as contraband of war, and no general decision
has been come to on the subject. Strong remonstrances,
for instance, have been made by Count Bismarck against
the export of coal to France, but it has been held by Prussian
authors of high reputation that coal is not contraband,
and that no one Power, either neutral or belligerent, can
pronounce it to be so. But even if this point were clearly
defined, it is beyond dispute that the contraband character
would depend upon the destination. The neutral Power
could hardly be called upon to prevent the exportation of
such cargoes to a neutral port, and if this be the case, how
could it be decided at the time of departure of a vessel,
whether the alleged neutral destination was real or colour-
able? The question of the destination of the cargo must
be decided in the Prize Court of a belligerent, and Prussia
could hardly seriously propose to hold the British Govern-
ment responsible, whenever a British ship carrying a con-
traband cargo should be captured, while attempting to enter
a French port."
This is probably the first occasion, on which the question,
whether "Coal" is to be considered contraband of war within
the meaning of the Declaration of Paris, has been raised.
The British Government had already admitted in a previous
communication from Lord A. Loftus to Count Bismarck
* British and Foreign State Papers, LX., p. 973.
+ Heffter Le Droit International de l'Europe, § 161.
16
that coal, on a voyage from a British port to be delivered
direct on board of a French man-of-war engaged in hostile
naval operations against Prussia, would be liable to capture
as contraband of war, and Earl Granville's despatch states
more explicitly the general principle, that the contraband
character of coal will depend upon its destination. But the
despatch also affirms another general principle of the
highest importance, that the question of the destination of
the cargo must be decided in a Prize Court of the
Belligerent.
This brings us to the consideration of a very important
feature in the history of Maritime Law, namely, the influ-
ence which particular States have been able to exercise
upon the development of that Law by the judgments of
their Prize Courts in time of war. It has been well
observed by Mr. Chancellor Kent,* in reviewing the growth
of the existing system of International Law, that "many
of the most important principles of public Law have been
brought into use and received a practical application and
been reduced to legal precision since the age of Grotius.
and Puffendorf, and we must resort to the judicial deci-
sions of the Prize Tribunals in Europe and in this country
(the United States of North America) for information and
authority in a great many points, on which all the leading
Text Books have preserved a total silence." In accordance
with Chancellor Kent's observation, jurists have been accus-
tomed to look to the Prize Tribunals of the United States for
precedents in the Administration of International Law, to
which nations may conform themselves in full confidence
that there will be no departure from the use and
practice of Nations. We have alluded to the war in
which France and Great Britain were engaged as
allies against China as one of the eight great wars,
in which one of the belligerent parties was not an adherent
* Kent's Commentaries on American Law, Part I., § 79.
17
to the Declaration of Paris. Another of those great wars,
to which we have hitherto made no special allusion, was a
war in which neither of the Belligerent parties was an
adherent to that Declaration, and which had also an excep-
tional character, being in the nature of a Civil War, and as
such liable to give rise to some confusion of ideas in rela-
tion to the mutual rights and duties of the belligerents and
the subjects of neutral Powers. We have already alluded
to the fact that the Government of the United States
declined in 1856 to accede to the Declaration of Paris,
having an objection to agree to the First Article, unless the
Signatory Powers would go a step further, and to use the
language of Mr. Buchanan in an earlier conversation with
Lord Clarendon in the month of March, 1854, "would con-
sent that war against private property should be abolished
altogether on the ocean, as it had already been upon the
land." The United States have consequently remained
outside the European Concert on the subject of the aboli-
tion of privateering, although they have passed laws to
restrain American citizens from entering into foreign priva-
teer service. With regard to the other three articles of the
Declaration, the independent practice of the United States
has been in accordance with the second and third articles,
and as regards the
the fourth and concluding article
Mr. Marcy, the United States Secretary of State in his
answer of July 28, 1856, to the invitation of the Signatory
Powers of the Declaration of Paris, admitted that the fourth
article of the Declaration merely reiterated a general undis-
puted maxim of maritime law, but he very justly observed that
it did nothing towards relieving the subject of blockade from
embarassment. "What force," he said, "is requisite to
constitute an effective blockade remains as unsettled and
as questionable as ever it was before the Congress
adopted the Declaration." It may therefore be taken for
granted that the United States of America hold the same
18
doctrine as to the conditions necessary to make a blockade
binding on neutrals, which is maintained by the Signatory
Powers of the Declaration of Paris.
The insurrection of seven of the Southern States of
the Federal Union of North American States having
acquired the proportions of a Civil War, the Government of
the Union gave notice to the European Powers that they
had established a blockade of the entire Atlantic Coast of
´the United States from the Bay of Chesapeake to the mouth
of the Rio Grande, an extent of about three thousand miles.
From a correspondence respecting Instructions given to
Naval officers of the United States in regard to Neutral
Vessels and Mails laid before the British Parliament
(Parliamentary, Papers, North America, No. 5 (1863) ),
it appears that the United States Flag-officer at Key
West informed the British Commander Hewett that the
United States cruizers had received orders to seize any
British vessels, whose names were forwarded to them
from the Government of Washington, and that the
fact of such vessels being bound from one British
port to another would not prevent the United States Officers
from carrying out those orders. A representation was
accordingly made by Mr. Stuart, the British Chargé
d'Affaires at Washington, to Mr. Seward, the Secretary of
State, in consequence of the capture of the British steamer
Adela, bound from Liverpool and Bermuda to Nassau, for
which latter port she was carrying a British mail, and the
Secretary of State on the following day communicated to Mr.
Stuart a new set of Instructions, which he was addressing
in the name of the President to the Secretary of the Navy,
"laying down rules for the future guidance of United States
Naval Officers, which essentially modified the Instruc-
tions, under which they had been latterly supposed to be
authorised to seize certain ships, of which a list had been
furnished, when or where those ships were met with,
19
irrespective of the observance of international law." Mr.
Seward subsequently communicated to Mr. Stuart a copy
of the Instructions, which the President had directed him
to trasmit to the Secretary of the Navy, and which copy
was in fact forwarded by Mr. Stuart to her Brittanic
Majesty's Principal Secretary of State for Foreign Affairs.
Having premised that it was the duty of the Naval Officers
to be vigilant in searching and seizing vessels of whatever
nation, which were carrying contraband of war to
the insurgents of the United States, but that it was equally
important that the provisions of the Maritime Law in
all cases be observed, the instructions proceeded to direct
in the third article, that when the visit was made the
vessel was then not to be seized without a search carefully
made, so far as to render it reasonable to believe that she
was engaged in carrying contraband of war to the insurgents
and to their ports, or otherwise violating the blockade, and
that if it should appear that she was actually passing from
one friendly or so-called neutral port to another, and not
bound or proceeding to or from a port in the possession
of the insurgents, she could not be lawfully seized. The
date of these Instructions was 8th August, 1862. They
were cautiously worded, and if they had been carefully
observed by the cruizers of the United States, their execu-
tion of the duty confided to them could have given no
cause of offence to neutral nations.
A question however arose in the course of the second year
of the Civil war, namely, in the month of February, 1863,
which is of wide-world interest as regards neutral com-
merce in time of war, and as a consequence of which, if the
judgment of the Supreme Court of the United States is to
be treated with the respect heretofore paid to that high
tribunal and its decree in this case is to be generally ac-
cepted as a precedent, it may be reasonably feared that the
commerce of neutrals will be subjugated for the future to
20
belligerent exigencies to an extent never before submitted to;
-an extent, to borrow the words of an eminent American
jurist, formerly United States Secretary of State,* "not
tolerable either to their interests or to their pride."
It appears that a British vessel, named the Springbok,
which had sailed from London on 8th December, 1862,
bound for Nassau, was crossing the Atlantic, and was on
3rd February, 1863, at the distance of about 150 miles to
the eastward of Nassau, the capital of New Providence,
one of the group of the Bahama Islands, when she was
seized by the United States cruizer, Sonoma, and sent in
as prize to the Port of New York. She was there libelled
in the District Court, and both vessel and cargo were
condemned by a decree of that Court as lawful prize. The
judgment of the Court was delivered by the Honorable
Samuel R. Betts, Judge of the District Court of the
Southern District of New York, and the tenor of the
Decree was as follows::
"United States District Court.
"The United States v. the Barque Springbok and Cargo.
"This suit having been heard by the Court upon the
pleadings, proofs and allegations of the parties, and evidence
legally invoked therein from other cases, and the premises
being fully considered, and it being found by the Court
therefrom that the said vessel at the time of her capture
at sea was knowingly laden in whole or in part with
articles contraband of war with intent to deliver such
articles to the aid and use of the
destination of the said ship and cargo was not to Nassau,
a neutral port, and for trade and commerce, but to some
port lawfully blockaded by the forces of the United States,
and with intent to violate such blockade; and, further, that
the papers of the said vessel were simulated and false.
enemy; that the true
* The Honorable William M. Evarts.
21
Wherefore the condemnation and forfeiture of the vessel
and cargo is declared. Ordered that a decree be entered
accordingly."
There could be no uncertainty as to the law applicable
to such a case, if it be assumed that the facts warranted
the conclusions of the learned judge, namely, that the
vessel was bound to a blockaded port, and that the ship-
papers were simulated and false. The owners, however,
of the ship and cargo appealed from the judgment of the
District Court of New York to the Supreme Court of the
United States. That High Court, consisting of nine
judges, took a totally different view of the facts of the
case, and decreed the vessel to be released, being satisfied
that the ship was bound to Nassau, where her voyage was
to end, and that her ship-papers were genuine and regular.
The language of the Supreme Court as reported in 5
Wallace's cases before the Supreme Court, p. 21, was as
follows:-
(6 Her papers were regular, and they all showed that the
voyage on which she was captured was from London to
Nassau, both neutral ports within the definitions of neutrality
furnished by international law. The papers were all
genuine, and there was no concealment of any of them and
no spoliation. Her owners were neutrals, and do not
appear to have had any interest in the cargo, and there is
no sufficient proof that they had any knowledge of its
alleged unlawful destination.”
"The preparatory examinations do not contradict, but
rather sustain the papers.'
Bearing in mind the instructions which the President
of the United States had directed to be sent to the com-
manders of the United States cruisers. that before
seizing any vessel they were to examine carefully her
papers, and if it should appear from them "that she was
actually passing from one friendly or so-called neutral port to
22
another, and not bound to or from a port in the possession
of the insurgents, the vessel could not be lawfully seized;
it would seem prima facie that the commander of the
Sonoma either failed in his duty to examine the papers of
the Springbok before he made prize of her, or that he
seized her in despite of the President's instructions.
It would have been reasonable for the owners of the
cargo to expect a reversal of the decree of the District
Prize Court in regard to the cargo, as a consequence of the
finding of the Supreme Court of the fact that the ship was
passing from one neutral port to another, where she was to
discharge her cargo, for the District Court had condemned
the cargo as in whole or in part contraband of war by
reason of the ship's destination being an enemy's port. It
has been already observed that, according to the practice
of European Prize Courts, an actual destination of the ship
and cargo to an enemy's port or to an enemy's army or
fleet, is necessary to warrant a belligerent in capturing a
neutral cargo on the high seas and confiscating it as con-
traband of war, namely, as forbidden to be carried to the
enemy. The Supreme Court passed over the question of
contraband or not contraband" as of secondary importance
in the view which the Court took of the law applicable to the
case of the cargo, and proceeded to declare it good prize
of war upon grounds, which in matter of law find no support
in any reported judgment of European or American Prize
Courts in any previous war, and which, in matter of fact,
were founded on a surmise.
66
We quote from the same volume of Wallace's Reports'
p. 27, the concluding words of the finding of the Supreme
Court in regard to the cargo of the Springbok
"Upon the whole we have no doubt that the cargo was
originally shipped with intent to violate the blockade ;
that the owner of the cargo intended that it should
be transhipped at Nassau in some vessel more likely to
23
succeed in reaching safely a blockaded port than the
Springbok; that the voyage from London to the blockaded
port was, as to the cargo, both in law and in the
intent of the parties one voyage; and that the
liability to condemnation, if captured during any part
of that voyage, attached to the cargo from the time of
sailing."
Of the four propositions above stated, the two first are
findings of fact, and the two latter are statements of law.
We pass over the former as having no general application.
It is with the statements of law that neutral Nations are
seriously concerned, for the theory of Continuous Voyages
applied to blockades, after the precedent of the Springbok,
would amply justify a powerful belligerent in sweeping the
wide ocean clear of neutral merchant ships, as soon as it
has declared an enemy's coast to be under blockade. We
have already remarked that during the late Civil War the
Government of the United States declared the whole
of its coasts, to the extent of three thousand miles,
to be under blockade, and the Supreme Court did not
consider itself bound to fix the owners of the cargo
on board the Springbok with an intention to re-ship
it for any particular blockaded port, but generally
for some port or other under blockade. Let us suppose,
what we hope may not happen, that France should become
openly at war with China, and should declare the entire
Chinese sea-coast to be under blockade. France as a
Belligerent Power might claim a right upon the precedent
of the Springbok to seize every British or Dutch merchant
ship passing along the Tunisian coast of the Mediterranean
on its way to the Suez Canal, and although a French Prize
Court might be satisfied upon an examination of the papers
on board the ship, that the ship itself was bound to the
neutral port of Singapore or of Hong Kong, it might
surmise upon extraneous information that the cargo, after it
24
had been discharged at the port of the ship's destination,
was intended to be re-shipped in some other vessel, say a
German vessel, (for German ships have at present a large
share of the carrying trade between Hong Kong and the
Chinese ports), and to be forwarded to a blockaded port.
Upon such a surmise, if the judgment of the Supreme Court
of the United States, in the case of the cargo of the Spring-
bok, is to be accepted as a precedent, a French Prize Court
would be justified in confiscating the cargoes of all such
captured vessels, although it decreed the release of the
vessels themselves.
A question naturally suggests itself on looking at the find-
ing of the Supreme Court as to the destination of the ship,
and as to her papers being all regular and genuine, how
we are to account for the seizure of the vessel in disregard
of the Instructions issued by order of the President of the
United States and communicated by the Secretary of State
to the British Chargé d'Affaires at Washington.
A document has recently been published, which throws
light on the true grounds of the seizure of the Springbok.
It seems that his Excellency Lord Lyons, the British
Minister Plenipotentiary at Washington, made a repre-
sentation to the American Government relative to the
capture of the Springbok, and that Mr. Seward, the U.S.
Secretary of State, in his reply of 25th March, 1863, stated
that, according to a brief report made to the Navy Depart-
ment of U.S., it appears that the Springbok had been seized
"because she had no proper manifest, and nothing to show
the character of her cargo, which the captain of the vessel
said he was ignorant of." A recent publication has disclosed
the fact that the U.S. Secretary of State was misinformed
on this occasion, for the official dispatch, in which the
commander of the Sonoma reported to the U.S. Secretary
of the Navy that he had captured the Springbok, gives quite
another account of the grounds of capture. We quote the
25
despatch from " Le Mémorial Diplomatique" of Saturday,
9th June, 1883:-
"U.S.S. Sonoma.
"February 3ª 1863.
"At sea, lat. 25° 35′ North, long. 73° 40′ West.
"To the Honble. Secretary of the Navy.
Sir, I have the honor to inform you, while cruising
for the Oreto, I have this day captured in lat. and long. as
above mentioned, the English barque Springbok, one of the
vessels designated as a contraband loader upon the list
furnished me by Rear-Admiral Wilkes.
"I send the Springbok to New York in charge of Acting-
Master Willis.
"Very respectfully, your obdt. servt.,
(Signed) “T. H. STEVENS, Commander U.S. Navy."
An explanation of the allusion in this letter to a list of
vessels furnished to Commander Stevens by Rear-Admiral
Wilkes is probably forthcoming in a paper communicated by
the Hon. Charles Francis Adams, the United States Minister
in London, to Earl Russell on 30th December, 1862, which
has been published as part of the correspondence respecting
the Alabama, laid before the British Parliament. (North
America, No. 3, 1883.) It appears from this paper that Mr.
Morse, the United States Consul-General in London, had
compiled a list of vessels "which he believed could be relied on
as being a part of those which had left the port of London
laden with supplies, principally contraband of war." The list
in question, known subsequently by the familiar name of
the Black List, contains the names of twenty-two vessels of
which twenty are steam-vessels and two are sailing vessels,
the last on the list being the sailing vessel Springbok, res-
pecting which no particulars beyond her name are given.
The circumstance that the name of the Springbok had been
26
inserted on this list, if it be assumed that a copy of it was
furnished to the Commander of the United States cruiser
Sonoma, might have warranted him in suspecting her papers
to be simulated and false, and in sending the vessel into
port for further enquiry; but the Supreme Court of the
United States, after having kept the question before it
during three entire years, and having had the case twice
argued before it, came to the conclusion that the Springbok's
papers were neither simulated nor false, and that the true
destination of the Springbok was Nassau a neutral port in New
Providence, and with regard to the cargo being principally
contraband of war it was found to consist almost entirely
of general merchandize not suitable for purposes of war. I
do not propose to discuss the facts proved in evidence before
the Supreme Court; it may be sufficient to say that the cargo
of the Springbok appears to have been condemned in conse-
quence of a suspicion, which had been raised in the mind of
the Court by extraneous information, that it was intended, as
matter of fact, to be transhipped at Nassau and to be
forwarded in another vessel to some blockaded port.
The Court, on this suspicion, held itself to be justified
under the circumstances under which that suspicion had
arisen, in ruling that the surmised ulterior voyage of the
cargo was both in law and in the intent of the parties one
voyage with the actual voyage in which it was captured
from London to Nassau, and that a liability to condemna-
tion, if the vessel was captured during any part of the
voyage from London to Nassau, attached to the cargo from
the time of sailing.
Such a severe exposition of the Law of Blockade is not
to be found on record in any reported Judgment of the
European Prize Courts, and it is not too much to say that
it has added a new terror to war as regards neutral commerce,
and has also introduced a new ratio decidendi into Prize
proceedings, to which other nations may with justice demur.
27
In the particular case of the Springbok, it is well known
that the Judges of the Supreme Court were not unanimous,
and that three of them at least dissented from the opinion
of the majority. Further, it has been stated, in a letter
from the late Honourable Samuel Nelson, one of the
associate Judges who heard the Appeal, addressed
to the distinguished American Jurist, Mr. W. Beach
Lawrence, the learned Editor of "Wheaton's Ele-
ments of International Law," who disapproved of the
judgment, "that the Supreme Court was not familiar with
the Law of Blockade at the time when the appeal in the
case of the Springbok came before it," and that the minds
of several of the Judges were warped by patriotic sentiments
and by resentment against England. In fact, public feeling
was at that time strongly excited in the United States by
the depredations of the Confederate privateers, and the
Judges, as individual citizens, were no exception to that
feeling. Such a confession does honour to the Asso-
ciate Judge, and relieves the Supreme Court of any
possible suspicion that might otherwise have attached
to it, that it conceived it to be its duty, as a Court of
Prize, to support the action of the Navy of the United
States, even if it should be guilty of excessive vigilance
and overzealous exercise of belligerent right in carrying
out its Instructions under the emergencies of a Civil
War. On the other hand, the Executive Government of
the United States has always avowed a readiness on its
part to redress any grievance resulting to neutral com-
merce from the decision of its Prize Courts, if the circum-
stances appear to call for it. The case of the Adela may
be cited, in which the Hon. W. Seward, the United States
Secretary of State, thus expressed himself in a note
addressed to the Hon. W. Stuart, the British Chargé
d'Affaires at Washington, on 27th September, 1863
"If the principles of Maritime Law shall finally be decided
28
against the claimants, due reparation therefor shall be
made. The Government has no disposition to claim any
unlawful belligerent rights, and will cheerfully grant to
neutrals, who may be injured by the operations of the
United States forces, the same redress which it would
expect, if the position of the parties were reversed." These
are noble words, worthy of the Representative of a Great
Nation, which can afford to be both generous and just.
It is not an unimportant fact to which the Government of
the United States may justly attach some weight, that the
members of a Commission of the Institute of International
Law, appointed to consider the subject of Maritime Prize,
have concurred in a Consultation on the subject of the condem-
nation of the cargo of the Springbok, in which, having expressed
their opinion that the application of the theory of Continuous
Voyages to the cargo of that vessel was a retrogade step
calculated to aggravate the shackles (entraves) imposed
upon neutral commerce in time of war, they observe that its
effect as regards the law of blockade will be to convert
every neutral port, to which a neutral cargo may have been
despatched, into a port blockaded by interpretation, as soon as
there may be motives to suspect that the cargo having
been discharged at that port may be reladen in another
vessel and forwarded to a port actually blockaded. It were
much to be desired, is the concluding paragraph of the Con-
sultation, that the Government of the United States
of America, which has been the zealous promoter of
several ameliorations in the rules of maritime warfare in the
interest of neutrals, should take an early opportunity, in
such form as it shall deem most suitable, to declare that it
does not intend to accept and consecrate the theory, formu-
lated as above, as an element of its maritime jurisprudence in
matters of prize, nor as a rule of international law binding
in future on its Prize Courts.*
* En conséquence, les soussignés concluent qu'il est très désirable, que le
29
Since I took up my pen to review the progress made
during the last thirty years in rendering war less onerous to
neutrals, a debate has taken place in the Upper Chambers
of the States General of the Netherlands on the subject of
the condemnation of the cargo of the Springbok with a view
to prevent the doctrine, upon which the Supreme Court of
the United States justified its decision, from being generally
accepted in European Prize Courts. Count van Lynden
van Sandenburg, Minister of State, in the Sitting of the
Upper Chamber of the States General on Friday, 25th
January, 1884, in the course of his speech, in which he set
forth the history of the capture and release of the vessel
and the condemnation of her cargo, stated that he knew
that the attention of several Powers is now directed to the
question, which has at length assumed an international
character, seeing that it vitally affects neutral rights. "It
matters not," he said, "who the owners of her cargo may
be, to what nationality they may belong, whether they are
English, French, Dutch, or even American. A great prin-
ciple is at stake, and the only satisfactory and conclusive
proof that the United States Government can give, that it
at length abandons and renounces a doctrine destructive of
neutral trade, and a judgment pronounced in error, will be
the awarding full compensation to the despoiled owners of
the cargo, the long-suffering victims of a flagrant mis-
carriage of justice. Now is it not," he continued, "the
clear course, is it not the duty of the Netherlands Govern-
ment, of the government of the country, which gave birth
gouvernement des Etats-Unis d'Amérique, le quel a été le promoteur zélé de
plusieurs améliorations apportées aux règles de la guerre maritime dans
l'interêt des neutres, saisisse la première occasion pour proclamer, dans telle
forme qu'il jugera convenable, qu'il n'a pas l'intention d'accepter et de consacrer
la théorie ci-dessus formuleé comme élément de sa doctrine juridique sur les
prises maritimes, et pour déclarer, qu'il désire que la condemnation du charge-
ment du Springbok ne soit pas adoptée par ses Tribunaux comme précédent de
jurisprudence, et comme règle de leurs decisions pour l'avenir.
30
to Hugo Grotius, to approach the United States of North
America in conjunction with other Maritime Powers, for
the purpose of prevailing on their Government to retrace
its steps. In my opinion it is clearly our duty."
Herr Van der Does de Willebois, the Netherlands
Minister of Foreign Affairs, in his reply, stated that the
Netherlands Minister at Washington had already been
instructed to take every opportunity to press earnestly the
subject on the American Government.
In conclusion, I may add that the countrymen of Benjamin
Franklin may fitly lend an ear to the countrymen of Grotius.
Europe has listened to the counsels of Benjamin Franklin,
who in his letter of 14th March, 1783, quoted in the instruc-
tions sent by Mr. Adams, Secretary of State in 1823, to
Mr. Rush, the Minister of the United States in London,
was the first to set in motion the idea "that it was high
time, for the sake of humanity, to put a stop to the enormity
of private war upon the sea." The Dutch, on the other
hand, were the first nation in Europe to regulate the
practice of blockade, and with that object in view they
issued an ordinance on 26th June, 1630,* upon the advice of
their Courts of Admiralty, requiring three things to be
proved before a neutral vessel should be confiscated with its
cargo by sentence of the said Courts-namely (1), the
existence of a blockade de facto; (2), the notoriety of
such a blockade; (3), a clear intention to violate the
blockade.
The Dutch nation has thus an hereditary title as it were
to raise its voice against the theory of Continuous
Voyages being ingrafted on the law of blockade, seeing
that it would result in a general license to Prize Courts to
hold any neutral port to be a port blockaded by interpre-
tation. It may be presumed that the Judges of the
* Robinson's "Collectanea Maritima," page 158, quoted in Twiss's "Law
of Nations in Time of War," 1875, p. 196.
31
Supreme Court of the United States did not foresee the
wide scope of interference with neutral commerce, which
the doctrine of blockade by interpretation would authorize,
and that they overlooked the fact that no evidence can
in the nature of things be forthcoming in the ship's-papers
or in the cargo-papers to refute a suggestion of a possible
reshipment of the cargo on board of another vessel
destined to a blockaded port, after it has been delivered at
the port of the ship's actual destination. Besides it is
an axiom of Maritime Prize Law, that with regard to
the cargo on board of a general ship the Manifest and the
Bills of Lading are the best evidence of both the owner-
ship and the destination of the cargo.
It has been the singular honour of the late Lord Kingsdown,
who presided over the English High Court of Appeal in Prize
Cases during the Crimean War, to have applied the Law of
Blockade to neutral vessels with an equity unknown to the
Prize Court in the days of Lord Stowell, and which a
veteran Judge of the English High Court of Admiralty,*
who had practised in Prize Cases before Lord Stowell,
considered to be too favourable to neutrals. It was also
in former days the pride of the Supreme Court of the United
States to have framed its practice in Prize Causes after
the rules of the British Courts of Prize, which, as
observed by one of the most eminent jurists of the United
States, Mr. Justice Story,† are conformable with the Prize
practice of France and other European countries. It
would be deeply to be regretted that upon the Law of
Blockade the Prize Courts of the two countries should
proceed henceforth on divergent lines, and that whilst the
British High Court of Appeal has been striving to render
the Law of Blockade less onerous to neutrals by tempering
its administration with greater equity, the Supreme Court
* The Right Hon. Dr. Lushington.
+ Wheaton's Admiralty Reports, vol. I., Appendix, p. 494-
UorM
32
of the United States of America should have risked to
make it intolerable by throwing upon the neutral owners of
cargo a burden of proof, which it is contrary to natural
equity to impose upon them, and by sanctioning the novel
principle that a cargo may be condemned for a breach of
blockade, whilst the ship itself, in which it is laden, is
acquitted of any design of proceeding to a blockaded port.

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