Handbook of Maritime Rights/Chapter 11
Sparing all Private Property at Sea.
We have seen that the United States offered to adhere to the Declaration of Paris "en bloc" provided the immunity of all private property at sea was added as a fifth rule. This proposal has met with many advocates in England. Their argument is this: the principles of the Declaration of Paris, as it stands, are demonstrably fatal to the naval superiority, to the carrying trade, and the mercantile marine of this country; England is the great carrier of the world, and it is in her capacity as a carrying nation that she would be utterly stricken in a war. Exempt mercantile ships from capture and she will be able to carry on her vast trade, the carrying trade included, as securely in war as in peace, her commercial resources will remain intact, and she will consequently be able to bear the strain of a war uncrippled by financial distress. As matters stand at present, you have either gone too far or not far enough. Your enemy's commerce will sail under the neutral flag. His only sacrifice will be the carrying trade, and, as yours is the only large carrying trade in the world, his loss in this respect will be borne with a light heart. It will even profit him for warlike purposes, inasmuch as the sailors who manned his mercantile marine will be set "at liberty to man his military marine, so that for military purposes he will actually be in a better position than if the neutral flag did not procure immunity to his cargoes. You on the contrary have an enormous mercantile marine, 37,000 vessels representing 6,000,000 or 7,000,000 tonnage, and this will be the measure of your sacrifice during the war, not to speak of your chance of losing it altogether; for it by no means follows that once lost your carrying trade will return to you after the peace. Commerce has a tendency, once it has taken certain lines and channels, to adhere to them, as witness the permanent loss to the Americans of their carrying trade, caused by the depredations of the "Alabama," the "Florida" and the "Shenandoah." As you have taken a fatal step in signing the Declaration of Paris, take another step which will land you in comparative safety.
I think I have stated fairly the arguments of the exponents of this theory. I will begin by granting all they contend for, and I will ask, does it not amount to this: "There shall be no more war upon the sea, where we have always been strong, but only on land where we must be necessarily weak;" for the moment such a principle is granted there can be no more such a thing as naval warfare. In fact, during the last two wars naval warfare was suspended. The Russian fleets remained behind Cronstadt or were sunk in the Sevastopol roadsteads, and their crews fought on land in the entrenchments. In the Franco-German war, the marine particularly distinguished itself for its discipline and courage, not in the element which was theirs, but in the villages of Beaumont and Bazeilles, and in the armies of Chanzy and Faidherbe. Now to put an end to naval warfare is to deprive England of her appropriate arm; that arm in which she has hitherto been supreme, and by the use of which a small island in the German Ocean acquired colonies, riches and power out of all proportion to its size or the number of its population. If England yields up the instrument by which she acquired this position, is it possible that she will be able long to maintain the position? It is as if a nation were deliberately to tear up its own title-deeds. From that of a first-rate maritime, it descends at once to the position of a fourth-rate military Power, with the capacity of putting in the field an army of about the size of that of Servia, and with all the obligations of Empire still incumbent upon it. It is a fact, which the English War Office will scarcely venture to contradict, that, at the crisis of the Franco-German War, when it was a matter of importance to ascertain the exact amount of our available military force, the English Government ascertained that there were no means of putting 20,000 men into the field.
Next, let us look at the principle on which this theory rests. War, being the "ultima ratio" of nations, must be prosecuted until one or the other of the combatants gives in; this means, the principle of war on commerce being surrendered, until a sufficient number of men are killed, maimed, and wounded, so as to render resistance on one side or the other hopeless. And whilst this game of slaughter is going on, whilst thousands and thousands of our countrymen are being killed off, the merchants and shipowners of England are to be driving a roaring trade and coining money out of the blood of their countrymen. Is it very likely that the common sense and common feeling of the people of any country would submit to this? The principle that the neutral flag covers the merchandize enables the neutral to make a profit by the blood of the belligerents, and so divides the interests of the community of nations, which is not the least of the objections against it. But this proposal divides the nation itself into two sections, and enables one-half of it to fatten on the blood of the other half.
This "free-trade in war," this commercial peace and military war, has been denounced and repudiated by every statesman who has expressed an opinion upon it. "There is no such thing as war for armies and peace for commerce" said Lord Kenyon. In almost the same words, Sir Wm. Scott (afterwards Lord Stowell), said: "A military war and a commercial peace is a thing not yet seen in the world." Mr. Disraeli remarked that "he could see great calamities following the admission of such a principle. It might make rich communities but it could not fail to make weak nations; and a country that adopted it might disappear in a way that it might be difficult for some people to conceive" Lord Palmerston, who went down to Liverpool in 1856 and made a speech, in which he seemed to lend countenance to the advocates of this principle, by saying that he hoped to see the principle of the Declaration of Paris still further extended, frankly avowed, in the debate in the House of Commons, that "he had changed his mind on the subject." This was six years later, on the occasion of Mr. Horsfall's motion. "With reference to the assimilation of the principle of war at sea to the practice of war on land, I am perfectly ready to admit that I have entirely altered my mind on that point. Further reflection and deeper thinking have satisfied me, that what was at first sight plausible—and I admit that it was plausible on the surface —is a most dangerous doctrine, and I hope honourable Members will give weight to my thoughts. A maritime nation ought not to give up any means of injuring its enemy on the sea."
I may here be allowed to remark that, if Lord Palmerston (on a subject of such primary interest to his country, and one so closely akin to the subject of the Declaration of Paris, that, with it, it can only be considered as part of a great whole), changed his mind between 1856 and 1862, his authority, as the person chiefly responsible for the Declaration of Paris, is very much diminished. The change of opinion and the avowal of it were highly creditable to his candour, but the necessity for it is a reflection on his judgment in the first instance. And it is scarcely too much to argue that yet further reflection and deeper thinking might have induced him to revise his opinions on the whole subject, and retract his "hasty and improvident" assent to the Declaration of Paris.
To conclude my authorities on this question. The Solicitor-General said in the same debate (1862), "if there be any principle of the law of nations more cardinal than another it is that the people are identified with their Governments, and that you cannot have peace with the one and war with the other, that in fact the people are bound up with their Government and the public interest of the nation for better or for worse." The Lord Advocate said:—"The principle of all war was the denial of the rights of property to a belligerent enemy. That was one of its essential ingredients."
War, in fact, is a declaration of distraint and death against your adversary, and you distrain his goods before you take his life. To give up the right of distraint is to necessitate the greater use of the right of killing, and, as John Stuart Mill said: "He was at a loss to conceive how humanity was advanced by sparing people's property and shooting at their bodies." And yet this principle of the immunity of private property at sea is constantly supported on the very grounds of humanity and civilization. Other abstractions are also pressed into the service, and the interests of commerce are invoked, as if commerce could have interests apart from commercial people!
Before concluding, there are two arguments used in support of this thesis which I feel bound to consider. One is, that it is the interest of England to support the principle, because, our commerce and our carrying trade being the largest in the world, we present "the largest area of vulnerability." Now this argument is equivalent to saying that a big man ought not to fight a little man because his "area of vulnerability" is greater than that of the little man. True, his "area of vulnerability" is greater, but his striking power is proportionately greater too. So, in a commercial war, English commerce would no doubt suffer, but the enemy's commerce would be annihilated.
England is like a big company competing with and beating down a little tradesman; it can afford to lose two sovereigns to the other's one, and notwithstanding, to ruin him and force him to shut up shop; and, as the case in question supposes legitimate reasons of war between them, England would be justified as well as wise in accepting the conflict. To think that we can make war and suffer no loss is to suppose that one can make omelettes without breaking eggs.
The other argument is founded on a false analogy. It is said that private property is spared on land in war, and therefore it ought to be spared at sea. I will not stop to dispute the fact, although it would scarcely be beside the question to ask whether the villas and gardens around Paris were spared by the Prussian army, or the private property of the Southern States by Sherman's troops in his famous march, any more than in Westphalia in the time of Turenne, or in the campaigns of the great Napoleon. But, even if the fact was as the argument audaciously assumes, I answer, the reason would be that there is on land a means of legalized plunder, viz., the local government of the country, of which the invader immediately possesses himself, and thus grasps the taxes and contributions of the people in a way which is impossible at sea; and, if he abstains (which it is quite an assumption to say he does) from indiscriminate plunder, the abstention is in his own interest and for his own benefit as no consideration can be of such paramount importance to him as victualling and supplying his troops, which the wholesale destruction of private property, would render impossible. Moreover the whole argument is founded on a false analogy. War on land means the invasion of enemy's land, followed often by the permanent conquest of his provinces;—this is the essence of war on land, it can mean nothing else. But this, from the nature of the case, is impossible at sea. There is nothing there to invade and nothing to conquer. If therefore warfare at sea is to follow the exact analogy of warfare on land, there is absolutely nothing whatever for it to do. But if invasion is of the essence of military war, banishing enemies' commerce from the sea, or seizing it "in transitu," has always been of the essence of naval warfare; and if you wish for a true analogy, and are bent on abolishing naval warfare, put an end at the same time to military warfare, and make invasion and conquest illegal. Only, to do this, you will have to deal with people who are not carried away by abstractions and who do not found their State policy on plausible analogies.