International Law :
Lecture VI

Lecture V Contents Lecture VII


One point of considerable interest in International Law is the very different degree of durability which the various parts of the system have proved to possess. The oldest rules which belong to its structure are simply rules of religion and morality ordinarily applied between man and man, but so modified by the international writers as to be capable of application between state and state. By the side of these are borne rules which have been inherited from the oldest stratum of the Roman Law, rules of great simplicity, and distinguished at the same time by a great amount of common sense. These rules still survive and are still available for the solution of international questions. On the other hand, there are parts of International Law which are comparatively modem, which are highly complex, and which in their day were of great importance, but which have now become thoroughly obsolete through changes in the social condition of nations or international intercourse. A good example may be pointed out in what was once known as the Rule of the War of 1756. If you look into an international discussion dating from the latter part of the last century, if you look into the reports of the decisions of courts belonging to the same epoch, you will find constant allusions to this rule, which ultimately became the subject of a serious quarrel between England and the United States, a sovereign community which had not been in existence when the rule was first heard of in England, like probably all the nations of the European continent, adhered to the doctrine that trade with colonies and dependencies was the exclusive privilege of the subjects of the mother country. The question arose whether war made any difference to this monopoly. When the mother country became a belligerent, the route followed by the colonial trade was less obstructed than in ordinary times. The ships which watched the foreigner who in peace tried to intrude upon it, were perhaps driven away by the vessels of the other belligerent; and the route being more open, neutrals constantly tried to engage in trade which in time of peace would have been forbidden to them. What, then, was the consequence of neutral invasions of this privilege? It was argued on behalf of the neutral trader, that there being nobody else to undertake the transport of commodities, he was entitled to share in it. This was denied by the English courts of justice, and they decided that a neutral ship, engaged in a trade of this description, was liable to capture. This was the rule of the war of 1756, which denied to neutral shipowners participation in the trade which was a monopoly of the mother country or the country which was sovereign over the dependency. There was at that time a rule which forbade certain articles to be exported from Ireland; and of course the trade of India, which was in the hands of a company, was even less open to nonprivileged traders. But this rule, and the state of things which it implied, are now completely obsolete, and all the dissertations about them which once filled the books are obsolete. It was the United States, then new as a sovereign community, which first contested most strongly the legality of the rule. But it has been in fact destroyed by the indirect influence of the United States. The fortune of the United States showed that a great increase of national wealth followed independence, and the demonstrable profitableness of open trade sapped the old colonial theories, while, no doubt, the success of the United States in securing their independence showed the danger of attempting to control extensive and distant dependencies.

A specially interesting set of questions arises on the four articles of the Declaration of Paris, the great modern system of reformed maritime law which, but for one dissentient, would have become the law of the whole civilised world. This Declaration, as we have seen, keeps alive two sub-departments of the old law of nations in very much their original state; the law of contraband of war, and the law of blockade. Let us ask ourselves whether these branches of law are likely to be long-lived even as slightly altered by the arrangements of Paris. I have already pointed out that the list of articles of contraband of war was not yet closed. The proposal to include certain things in this class has not in some cases been conclusively rejected, while, on the other hand, as it is very generally allowed that commodities may become contraband through the circumstances of a particular war, perfectly new kinds of contraband may yet make their appearance. Perhaps the articles as to which there has been most dispute have been those which follow the first class and head the second; the first class being munitions of war, and the second class things of what, in International Law, are called 'doubtful use;' timber, sail cloth, hemp in the early stages of manufacture, cordage, pitch and tar. Lord Stowell admits this, and gives the reason, that wars have become more and more naval, so that articles of most use in regard to ships, and the propulsion of ships, gain more and more likeness to munitions of war. There were endless controversies on the subject. There were repeated differences with the Baltic Powers it whose territories the materials of these things were for the most part produced. Many treaties gave lists of articles of contraband, and to some of these England was a party. The principle which the English Government several times adopted was, that naval stores might be taken possession of, but that, unlike articles of contraband, they must be paid for by the captor. But changes in the structure and mode of propulsion of ships tend to make this kind of contraband or quasi-contraband obsolete. Steam renders sails of little utility, and diminishes their number. The hulls are now more and more made of iron, and iron wire even takes the place of cordage. It is possible that naval stores may disappear from the list of contraband, while there may be a struggle to include such innocent articles as coal and food.

The second exception to the immunity of neutral property is, property carried in a ship attempting, or reasonably suspected of attempting, to enter a blockaded port. Blockades in the last century were considered by belligerents a most elective method of distressing an enemy; and over great part of the European continent the great markets for traders and the fortified stations for ships are most exposed to blockade. To prevent neutral vessels from entering or leaving these ports, was to do severe injury to trade; and to impoverish the blockaded port was to impoverish the country round about, and, if ships of war were lying within the port, to diminish seriously the total fighting force of the enemy. Brest and Toulon were practically blockaded all through the great war at the beginning of this century and the end of the last. England was again a belligerent during the Crimean war, and there were some blockades, not perhaps very important, of ports in the Baltic and the Black Sea. But during the American war between the Northern and Southern States she became a neutral, it having been at last allowed, even by the United States, that there was a state of belligerency between the combatants. Even then it became clear that a considerable change had occurred. Steam made the limited navy of the Northern States able to maintain a fairly elective blockade of nearly the whole coast of the Southern Confederate States. Steam also greatly facilitated the operations of the neutral blockade-runners. But the land behind the ports of the Southern States was rich and fertile, and many railways had been constructed in those territories. The effect, therefore, of the blockade was very unlike the eject of the blockades in the great French war. Articles of first necessity were easily supplied to the blockaded ports from within, and the effect of the blockade was to raise the price of luxuries, which were always imported from abroad. If, however, we look on the present state of the world, we shall see that no European continental Power of any importance exists which is not connected by railways with the interior of the country to which it belongs, and also, through connecting links, with the railway system of the whole Continent. A blockade may still raise the price of necessaries and conveniences, but unless aided by a land siege it cannot prevent a sufficient and even plentiful supply of necessaries and conveniences entering a blockaded place. It cannot arrest trade; it can only divert it. A land traffic would at once take the place of a maritime traffic. Hardly any colonial produce reached the blockaded ports during the great war with France. Now it would flow in from a dozen openings in Eastern and North-eastern Europe. It is possible that no part of North America could now be blockaded so as to greatly distress the country behind. There has been an extensive construction of railways through all the states on the east side of the United States, and an immense multiplication of manufactures throughout the country. South America, rapidly growing in wealth but insufficiently supplied with railway communication, would be the only part of the world to which neutrals would resort, and at which blockades would be of any value.

The fact that in any future maritime war it will probably be found that these branches of law have changed their character, not through any alteration of opinion, but through industrial development, may suggest a suspicion that the new maritime law created by the Declaration of Paris, though now hardly more than thirty years old, may yet shortly prove obsolete. The position is this. Neutral trade is relieved from annoyance and interruption, and privateering is abolished as regards most of the world. But the United States decline the new neutral immunities because they will not surrender privateering. Now in any new war an attempt to enforce the parts of law unfavourable to neutrals, will probably turn the neutral trading community into a belligerent, and the power of employing its own and foreign ships as privateers would make the American Union a very formidable belligerent. The question is, whether it is worth while amending the Declaration of Paris, and making it of universal application by accepting the further reforms proposed by the United States; that is, by exempting all private property from capture, and by abolishing privateering.

Let us first ask ourselves: what is supposed to be the object in war of subjecting the property of an enemy to capture, either in his own ships or in neutral bottoms? It does not directly benefit the country carrying out the law, because under modern practice a vessel properly captured belongs, not to the State, but to the captors. The assumption is that it distresses the enemy, that it enfeebles his trade, and raises greatly the price of many luxuries and commodities, and, more than all, that it seriously diminishes his capital. It is here to be observed that the view of maritime law taken, even by international lawyers, does not quite answer to the truth A metaphor used in the last century was that the operations of maritime war resembled a flight of carrier pigeons pursued by a flight of hawks. But he who would repeat this figure would have to forget the enormous growth of the practice of maritime insurance. It may happen as to war risks as with insurance against perils of the sea, that a capture of as man's vessel, if prudently managed, may enrich rather than impoverish him. No doubt enhanced rates of insurance do impoverish a nation, and do diminish its capital. But the loss is widely diffused, it falls on the well-to-do class, and a war must be very protracted in which increase of marine insurance would be sensibly felt by the mass of the population.

Another general position may be noticed. In a war in which aggression is kept on the old footing by the powers of armament which privateering gives, the Power which has most property at sea is most injured. The old law took for granted the equality not only of naval strength among states, but in volume of trade and of property risked. To the amount of risk the amount of loss will always correspond. The question,therefore, arises: what interest have we, what interest has Great Britain, in refusing to grant a general immunity from capture to all private property at sea? In the first place, so far as trade is conducted by maritime conveyance, this country has incomparably the largest share in it. This is in great part a consequence of a revolution in shipbuilding. So long as ships were built of wood, the maritime Powers were those which commanded most timber. The Baltic states, Russia, and the United States seemed likely to have in turn a monopoly of transport. The Dutch swept the world for timber adapted to maritime purposes. But now that ships of all classes are made of iron, the monopoly of construction and possession has passed to Great Britain. We are both the constructors and the carriers of the world, and we suffer more than any other community from all dangers, interruptions, and annoyances which beset maritime carriage.

But far the most serious consideration affecting the matter before us -- that is, the conformity of the Declaration of Paris to our permanent interests -- is the relation of maritime law, which it sets up, to the supply of food. The statesmen of the last century, and of the first part of this, unhesitatingly assumed that it was the interest of this country to raise the largest part of the food of its population from British soil. They were used to wars, and the great French war seemed to them to establish that a country not fed by the produce of its own soil might be reduced to the greatest straits. In fact, the price of corn during the great French war, and even for some years following it, was absolutely prodigious. This is the secret of their protectionism, and not any particular economical theory. They looked on the evils of importing food from abroad as a clear deduction from experience. Since that period, the infrequency of wars has kept out of sight the unexampled nature of our position with regard to food. So far as the articles most necessary to life are concerned, we are mainly fed from other countries, removed from us by vast distances from North America and from India; that is to say, a great part of the national food before reaching us is only accessible to us through maritime carriage, very long and capable of very easy interruption. Sir James Caird, in a paper which he has recently published, says that the food imported into Great Britain during the year 1887 would probably reach one hundred and forty millions sterling. Nor can the balance between foreign commodities and home supplies be seriously altered. Sir James Caird points out in the same paper that Great Britain is steadily becoming a pastoral country instead of an agricultural country. The state of living under any circumstances is at all times very hard to alter; and population, at various degrees of pace, always multiplies up to subsistence. On the other hand, the price which we pay for our prodigious purchase of food in other countries is really paid by our manufactures, of which the ultimate sources are our coal and our iron, and the inherited skill of our operative classes. Thus the greater part of the food which we consume in any year can only reach us through a long voyage, and the price which is the means of bringing it to us must also come through a voyage of equal length. These, of course, are economical reasons, but I also look on the subject from the point of view of International Law. Unless wars must be altogether discarded as certain never again to recur, our situation is one of unexampled danger. Some part of the supplies which are matter of life and death to us may be brought to us as neutral cargo with less difficulty than before the Declaration of Paris was issued, but a nation still permitted to employ privateers can interrupt and endanger our supplies at a great number of points, and so can any nation with a maritime force of which any material portion can be detached for predatory cruising. It seems, then, that the proposal of the American Government to give up privateers on condition of exempting all private property from capture, might well be made by some very strong friend of Great Britain. If universally adopted, it would save our food, and it would save the commodities which are the price of our food, from their most formidable enemies, and would disarm the most formidable class of those enemies.

Of course I am aware of the objections which might be made. It may be asked whether it would tend to diminish wars if economical loss were reduced to the lowest point, and if hostility between nations resolved itself into a battle of armed champions, of ironclads and trained armies, if war were to be something like the contests between the Italian States in the Middle Ages, conducted by free companies in the pay of this or that community. I think that, even thus modified, war would be greatly abated. But this is a subject which ought not to be taken for granted without discussion, and I hope in some future lecture to take it up and go into it completely.

Lecture V Contents Lecture VII
Economic and Legal Treatises

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