Imágenes de página
PDF
ePub

and exactions of belligerents in this direction. The concessions of the Treaty were limited to ships intended for war. But there is no reason why the same system should not be extended to the whole catalogue of contraband. During the war between Germany and France very

similar demands were not very gently indicated from Prussia as to supplies of arms and coal

. If the Confederates had thriven they might have made reclamations against us for furnishing sailcloth and cordage and artillery to the Federals, and against the Germans for furnishing them with recruits. There is no limit in this way to the fetters which neutrals are to endure as a penalty for the quarrels of their neighbours.

The other view, however, of this question of national interest in these neutrality laws is no doubt very serious. We have the largest merchant navy afloat, and to a large extent monopolise the carrying trade of the world. In war, we should suffer in proportion, if Alabamas and Floridas roamed the seas, and preyed on our merchantmen; and therefore it has been considered a cardinal point in public policy to secure that whatever our enemy might be able to effect in this direction on his own account and by his own resources he should not use the building yards of a neutral for this purpose.

This is truly the hinge of the whole controversy. It is a subject of deep moment, and is the kernel of the question. We fully appreciate its importance, and are far from saying that any view we can suggest satisfactorily solves it. But we think it has been too hastily assumed that the advantage to be derived by ourselves as belligerents will balance the restrictions with which it is proposed to burden our neutrality.

We are at present confining our remarks entirely to dealings in contraband of war-to purely commercial transactions. The great law of nations, that no neutral State is entitled to permit its territory to be made the base for military or naval operations is not affected by the views of the Chief Justice, and has never been made a subject of doubt. Unquestionably were any neutral State to permit such a thing to be done to our disadvantage as belligerents, we should at once resent it, and appeal to an argument stronger than protocols. But the question is, whether, if we, when at war with Russia, should blockade the Baltic and the Black Sea, it would not be well that we had a right internationally to prevent the United States from allowing Russian vessels of war to leave American ports to prey on our commerce.

All this resolves into the right of the stronger. If America, for her own peace, chooses to forbid such traffic to her citizens,

so much the better for us; but if she does not, what the better are we of the international obligation? We should have only obtained a fertile field for cultivating altercation, and the effect of the blockade and the standard of due diligence' would be fought over again on paper, and probably with more serious weapons afterwards, at a time when we had enough on our hands otherwise. In short, if we were strong enough to enforce such an obligation, we should not require it, and if we were not strong enough, it would be useless.

If we go to war we must pay the penalties of war, nor is it amiss that our recognisances to keep at peace should be heavy. If, of all the Great Powers, we have most to lose by maritime plunder, we have also most means of protection. It is to these we must trust should such a crisis arise; but how we are to be aided by a compact among nations to refuse supplies to a belligerent exactly in proportion to his need of them, we are at a loss to see.

Further, it would seem certain that we should lose more by trying to enforce the obligation than we could ever gain by its recognition. In addition to keeping a sharp eye on our enemy, it would be necessary for us to be suspicious and watchful of all our friends. If we consent to shut our own workshops when we are neutrals, so must our friends when we are belligerents. But will they? Is there any reason to think that if we were at war, either Germany or Switzerland would prohibit the enlistment of soldiers in the ranks of our belligerent enemy? It is quite certain that they would not; and even as regards the single matter of ships, before we could enforce the principle in our own favour, we should be embroiled with half the world. We think therefore that these rules are a losing bargain for Great Britain, and that her interest lies in the opposite direction. But in this matter there is no law which binds her excepting her interest. In the view of justice and equity a belligerent has no pretence for complaint against a neutral for selling anything which he has to sell, as long as he himself may purchase in the same market. The idea that the amount of the neutral's trade is to be restricted in proportion to the necessities of the belligerent, is one utterly inconsistent with real neutrality. Equity, on the other hand, clearly demands that the neutral should not suffer in any way by quarrels in which he has no share.

We conclude then, first, that Great Britain should decide on her own rights as a neutral, and should definitively announce them, while as yet peace prevails. Her safety lies in speaking out firmly and clearly, and announcing her own intentions for

the future. And, in the second place, if the Treaty leave her free to do so, that she should once for all declare, that whatever restrictions she may choose to impose on her own subjects for her own benefit, while she is in the position of a neutral, and while ready in courtesy to receive and consider any communication from foreign belligerents, she repudiates all international responsibility for the trade of her own subjects, and will neither receive nor act on any representations made on an opposite footing.

The result of this course would be to leave the belligerents to the only remedy which the custom of nations has ever allowed them, the capture of contraband at sea. Sir Alexander Cockburn has so fully dealt with this subject that we need not enlarge on it. This, and this alone, is the belligerent privilege which the public law of Europe has sanctioned in the matter of contraband. It is a large privilege, and one barely defensible on any theory of justice; but at all events it rests on universal usage.

But whatever course this country may think fit to take on this important distinction between our international obligations and our municipal legislation in the matter of contraband, the question ought to be settled by herself, and once for all. The present is as good an opportnnity as is likely to occur when we cannot be suspected of undue favour or disfavour to any other Power. If it be thought that our true interest lies in making such obligations international, and that the principle of the Treaty admits of being brought to a distinct and precise general application, the efforts of our Government should be directed to solving the difficulties to which we have referred, and to concerting in some European Conference a clear and intelligible code-not only on the subject of ships, but in regard to all contraband of war. Any course would be preferable to allowing the position of neutral States, and the rightful claims of belligerents upon them, to remain enveloped in the mists by which they are now surrounded. If, on the other hand, the nation should come to concur with the views of Sir Alexander Cockburn, to which we ourselves strongly incline, as pointing out by far the safest path, we should then require to consider for ourselves the further question, what our municipal legislation should be.

We indicated in our former number the doubts we entertained whether even the acknowledged code of contraband is not too burdensome for a neutral State; and whether it did not bear distinct marks of having been imposed by powerful belligerents on feeble neutrals. That the code to a

La time

[ocr errors]

large extent has been our own work is quite true; but we were in the habit of carrying matters with a high hand; and some of the law, of which Lord Stowell was the profound and able expositor, bore more hardly on the neutral than we now think either just or convenient, as was clearly proved by Lord Kingsdown's memorable judgments during the Russian war.

For our own part, without going into details for which we have no space, our opinion lies entirely in the direction of greater freedom, rather than that of greater restriction. As regards those things which are purely articles of commerce, we think a neutral State ought not to interfere with the ordinary transactions of its own subjects. It can be of no moment to the neutral-he is not even bound to know—who his customer may be, provided he get his price. It was nothing to us, during the French and German war, whether the arms or the coal we furnished were an advantage to one side or to the other. We took part with neither; and being ready to sell to either, or to any one else, no one was entitled, or should have been permitted, to remonstrate.

Take the case of coal. It is a natural product. It is not even an article manufactured, like a war-vessel, or a cannon, for hostile purposes, as little so as the water it heats in the boiler. Where can the justice be of preventing the coalmasters of this country from selling their coal in the best market? It is the fruit of our own territory-one of the main staples of our commerce. The question is not whether coal may not become contraband, so as to be liable to seizure. Let the belligerent try that question in the proper jurisdiction of a prize court.

But in regard to an article of pure commerce, and one of the ordinary subjects of our merchandise, we cannot see the justice or sense of laying an embargo on it, because one nation of the world may need it more than its adversary does in its wars with another.

In 1674, a period of our history in which these questions were better understood than they are now, Sir Leoline Jenkins gave an opinion to King Charles II., in which will be found the germ of our true policy, from which we have very widely departed. The question related to a cargo of pitch and tar belonging to an English subject seized by the Spanish on board a Swedish vessel. Sir Leoline Jenkins said: It is not ' probable that Sweden hath suffered or allowed in any treaty

of theirs with Spain, that their own native commodities — • pitch and tar-should be reputed contraband.' But that which Sir Leoline Jenkins thought so improbable, because so foolish, on the part of Sweaen, we have in part done of our

VOL. CXXXVII. NO. CCLXXIX,

own accord, and were not long ago asked, and urged, and pressed to do wholly. The exception of commodities the growth or staple of a particular country, rests on a very evident principle of good sense—namely, that undue assistance to one belligerent cannot be inferred from dealing in the ordinary 'wares of the country. And so Valin tells us that in 1700 tar and pitch, although held contraband in general, were exempted when found on board Swedish vessels, because they were the produce of the country.

The case of ships of war is more difficult only in this respect, that under some circumstances they are more likely to be connected, in addition to their character as articles of ordinary commerce, with a hostile use of the territory in which they are constructed. No illustration of this can be better than the position of the Confederate States. The home of their ships and sailors was, literally, on the deep. They had no other home accessible, excepting neutral ports. If by a series of mercantile transactions in England they had organised a feet, waiting in English waters to emerge simultaneously, our ports would no doubt to some extent have performed the part which Charleston or New Orleans would have borne had they not been blockaded. In the same way, if we were to blockade the Baltic, we should regard with great jealousy Russian vessels lying outside our blockade, in Prussian or Danish harbours. In these cases, although the distinction is not on the surface, there is no doubt that the neutral port is, to a certain extent, used not merely as a place of construction, but as a place of departure also; and the benefit of the blockade is thereby lessened to the other belligerent. The same result may follow from mere territorial proximity, even although there were no blockade. During our war with France, even although the ports of France were not blockaded, it would have been a great advantage to France, and a great injury to us, if vessels built in the ports of the United States could have sailed direct to the coast of Canada on their hostile errand—so great an injury that we might have gone to war with the United States rather than submit to it.

While there is some abstract force in this view, we still incline to the broader ground: that even in the circumstances supposed there is no real breach of neutrality, but only the incidence of one of the chances of war. Our neutrality in the present instance would have been precisely the same, although the blockade of the Confederate ports had been raised. In relations of this kind between States it is a mistake to run into legal refinements, or to make the character of

« AnteriorContinuar »