§ THE EARL OF ELLENBOROUGH
My Lords, I did wish to have given public notice of my intention to put a Question to the Lord President with respect to the interpretation to be put on some expressions in Her Majesty's Proclamation, relative to the conduct of Her Majesty's subjects in respect to the War in America. As this House did not sit yesterday, however, I had not the opportunity of doing so; but I hope the noble Earl, having had private notice, will be prepared at once to give the explanations I desire. It seems to me to be a matter of essential importance that a Proclamation instructing Her Majesty's subjects as to the conduct they should pursue in that unhappy war should be clear of all doubt, and to the last degree intelligible to every individual—that a man should not be obliged to go to his lawyer for an opinion as to the meaning of the expressions used; and, further, that if he should go to his lawyer, the lawyer should have no difficulty 2078 in assigning to the words their true interpretation. The warnings given to Her Majesty's subjects relate, first, to the law of England, and then to the law of nations. As to the law of England, it is clear enough; there is no doubt at all with respect to the duty imposed on Her Majesty's subjects. But as to the law of nations, as might naturally be expected, there is a great degree of doubt. Her Majesty's subjects are warned "not to break any blockade lawfully and effectively established by either of the belligerent Powers." Now, the first question I wish to put to the noble Earl is in what sense we are to understand these expressions. We are at present under an obligation to adhere to the declaration on the subject of maritime law agreed to by Her Majesty's Plenipotentiaries and those of other Powers at Paris. That declaration bears directly on the subject of blockades in these words—Blockades, in order to be binding, must be effective—that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.Now, if these words are to be understood in their strictly literal signification, to establish a lawful blockade would be almost physically impossible. They must receive certain qualifications and explanations. I say "impossible," because there is hardly in the whole universe any locality in which ships can remain safely with the power of absolutely preventing access to an enemy's coast. Blockades are carried on by ships at sea. They must be carried on by ships at sea, and under sail, because no ships can carry a sufficiency of coal to enable them to act constantly under steam. No doubt it would be a great facility if they could always act under steam; that would go far to enable them to make the blockade effectual. I recollect having heard that during the blockade of Toulon the ships employed in that service were on one occasion driven by a storm across the Mediterranean and, if it had continued a few hours longer, would have been lost on the Coast of Africa. Such things—such an event as the blockading ships being driven away by bad weather—will occur again; and, according to the strict and literal meaning of the Proclamation, a blockade would then cease to be valid because it had ceased to be effectual to prevent access to the enemy's coasts. But I apprehend the words must be understood with neces- 2079 sary qualifications, arising from the circumstances of wind and weather, which command all such operations; and that the real meaning is to prevent access by establishing such a case of danger to those who attempt to violate the blockade as to induce them to desist from attempting to do so. But, if that be the real meaning of Her Majesty's Proclamation, I confess I think it very much to be regretted that instead of adopting totally new words, as they have clone in this Proclamation, the Government did not warn Her Majesty's subjects against breaking, or endeavouring to break, a blockade lawfully established and effectively maintained—because it is not enough that a blockade is lawfully established, and unless it be effectively maintained it ceases to be lawful, I wish, then, first to know from the noble Earl in what sense we are to understand the words used in this Proclamation. Do they intend to convey the exact meaning, with the qualifications I have mentioned, of the declaration made by the Powers? If they do not, what further meaning do they contain? Do they go below or beyond the words of that declaration? And why should not the particular words there used be adopted on this occasion? I confess I also very much regret to see so much vagueness in the expressions used as to "contraband of war." The Proclamation speaks of "arms, military stores or materials, or any article or articles considered and deemed to be contraband of war according to the law or modern usage of nations." How are plain men to find out what articles have of late been considered contraband of war by the usage of nations? They must look through all the recent decisions of the Courts of Admiralty jurisdiction, not only in this country, hut in others; and it is highly probable that they will be found conflicting with one another, and prove no guide to the construction to be placed on the words of the Proclamation. I wish, therefore, to know what are the further articles not mentioned to which it is intended that the Proclamation should apply, and which Her Majesty's subjects are cautioned not to carry upon the sea. The law with respect to contraband of war is in a state of constant change. It must change year after year, according as the manner of conducting war is changed. The time was when bows and arrows and armour would have been considered contraband of war. When 2080 I looked into this matter six years ago I recollect to have found in the law books of best authority that all these changes were controlled by one prevailing principle—namely, that that is contraband of war which in the possession of an enemy would enable him better to carry on war. That is a clear, reasonable, and intelligible principle, and I very much regret that, instead of using the words which I find in this Proclamation, Her Majesty's Ministers did not go back to a principle which all can understand, and which is not affected by changes in the mode of carrying on war.
§ EARL GRANVILLE
The Questions put by the noble Earl are certainly very important. I feel it a some what difficult matter to speak upon questions of international law; but, at the same, it is my duty to give the noble Earl all the information I can, and if I should happen to make a mistake, I shall be grateful to learned Lords on either side to correct mo, in order that no misapprehension may go abroad on a subject of so much importance. With respect to the first question—what meaning is to be attached to the words, "a blockade lawfully and actually established"—I apprehend that, although the agreement of Paris is likely to form an epoch in the history of international law, and although it was concurred in by all the nations of Europe and by several American States, yet it does not in itself constitute a change in international law excepting as regards those Powers which signified their acceptance of it. I believe, further, even with respect to those countries which entered into that agreement with us, that what took place at Paris made no change as far as blockades, lawfully and actually established, are concerned. That question of international law remains exactly the same as before, with this difference only, that mere paper blockades will not in future be recognized. I believe that the construction of international law that has been adopted is, that before a blockade can be said to be lawfully and actually established, it must be announced in proper form and manner, and the State declaring it must have on the spot such a force as—I do not say to make it impossible, but, at any rate, to make it very difficult for vessels to obtain egress or ingress. The second question which the noble Earl has put to me is still more difficult to answer in a clear and satisfactory manner; but I can say, at 2081 all events, that the Government have followed the course usual on such occasions. To a certain extent the noble Earl answered his own question, for he stated that what is contraband of war must vary from time to time according to the character of the war which is carried on. There are certain articles which are clearly contraband of war, but there are certain other articles the character of which can be determined only by the circumstances of the case; as, for instance, the ports for which they are destined, and various other incidents which can be properly determined only when they have been submitted to the judgment of a prize court of Admiralty. The decisions of such a Court, unless there has been a flagrant violation of international law, all those who have recognized the rights of the belligerents must accept. I think, therefore, that Her Majesty's Government, in adhering strictly to precedent in this matter, took the only course which it was possible for them to pursue.
§ THE EARL OF DERBY
My Lords, the answer of the noble Earl is for the most part entirely satisfactory. I do not feel disposed to complain that the terms of the Proclamation are vague and uncertain. It is impossible to introduce into a Proclamation of this description such a definition of the character of a blockade, or of contraband of war, as would satisfy the conditions which seemed to be laid down by the noble Earl who first addressed the House. Nor do I complain of the Proclamation on the ground that the warning it gives goes beyond the necessities of the case. I refer to the warning which is given to British subjects against taking part in privateering expeditions. The Proclamation wisely and properly informs the subjects of Her Majesty that if they should engage in privateering expeditions they would have no right, whatever might be the result, to claim the protection of this country against any penal consequences to which they might render themselves liable. I do not complain of that—quite the contrary; but there are two points upon which it is absolutely necessary that Her Majesty's Government should lose no time in coming to a thorough understanding with the Government of the United States. The first is with regard to the question of blockade. It has been stated that the Northern States—I will still call them the United States—have intimated their intention of blockading the whole of the Southern ports. Now, we 2082 know perfectly well that it is not in the power of the Northern States, if their navy were three times as powerful as it is, effectually to blockade all these ports. There is no doubt they might effectually blockade this, or that, or the other port, and that would be a blockade which we should be bound to recognize, and as to which they would be entitled to all the rights of blockade; but I do think it is very important that Her Majesty's Government should not commit themselves the doctrine that the United States are to lay down the principle of a universal blockade, that that universal blockade would be recognized by Her Majesty's Government, and that all Her Majesty's subjects who might choose to disregard it would be liable to penal consequences. I apprehend that to make them so liable the blockade must be one the validity of which has been recognized by their Government. It is important, therefore, that Her Majesty's Government should come to a clear understanding with the Government of the United States that a mere paper blockade, or a blockade extending over a space to which it is physically impossible that an effectual blockade can be applied, will not be recognized as valid by the British Government. The other point is one of, perhaps, still greater importance. A noble and learned Lord (Lord Brougham) was understood to say a few days ago that by the law of nations privateering was piracy, and that, consequently, the Northern States would be perfectly justified in carrying out their threat to treat all privateering as piracy, and visiting it with capital punishment. I apprehend that if there is one thing clearer than another it is that by the law of nations privateering is not piracy—that no enactment on the part of any one nation can make that piracy as regards the subjects of another country which is not piracy by the law of nations, or by the law of that country. The Northern States, therefore, must not be allowed to entertain the opinion—although it may be right that we should warn British subjects that if they should engage in privateering expeditions they will not be entitled to claim the protection of their Government—that they are at liberty so to strain the law as to convert privateering into piracy, and visit it with death. The punishment under such circumstances of persons entitled to Her Majesty's protection would not be viewed with indifference, but would receive the most serious consideration by 2083 this country. It is right, on the one hand, that the people of this country should be warned of the peril of engaging in privateering undertakings; but it is essentially necessary, on the other, that the Northern States should not be induced to rely upon our forbearance if they choose to deny the general interpretation of international law, and attempt to visit privateering with a penalty which is not attached to it by that law. It is said that the Northern States treat the Southern Confederation, not as having the rights of belligerents, but as rebels, whose acts will be visited with all the penalties of high treason, including capital punishment. But that is not a doctrine we admit, because we have declared that the Southern States are entitled to the rights of belligerents. The Northern States, on the one hand, cannot be entitled to claim the rights of belligerents for themselves, and, on the other, to treat the Southern States, not as belligerents, but as rebels. These are the two points upon which it is most desirable that a clear understanding should be come to between Her Majesty's Ministers and the Government of the United States—first, that we cannot recognize any except a really effective blockade such as the United States may be able to enforce; and secondly, that we cannot recognize the doctrine that by any proclamation or any enactment the Northern States have power as against the Southern Confederation to treat privateering as piracy, and to visit it with all the penalties that attach to that offence.
heartily wished that all privateering were piracy by the law of nations, but, unhappily, it was not. His opinion upon this point had been misunderstood. What he said was that privateering undertaken by the subjects of one country against the trade of another country with which their own was at peace amounted to piracy. Privateering, however much it might be reprehended, was, undoubtedly, in the case of recognized belligerents, not piracy according to the law of nations, as that law was at present understood and administered; but if any persons, subjects of this country, fitted out a vessel against another country with which we were at peace, that in itself constituted a piratical act, and he was clearly of opinion that the persons so acting would have only themselves to blame if after full warning they entered upon that course. As to contraband of war, the articles coming under that category na- 2084 turally changed with the advance of military science. Taking into account the great changes and improvements in all the appliances of warfare which had of late years taken place, he should hold that coal might be looked upon as amounting to contraband of war, if furnished to one of the belligerents to be used in warfare against the other. He might add that he entirely concurred in the opinion that it was not necessary that a blockade, in order to be considered effective, should be of such a nature as to render access to any part of the coast impossible, but that it would be sufficient to constitute it a real blockade, that it precluded the existence of any reasonable chance of entrance.
§ LORD CHELMSFORD
said, he wished to bring the opinion to which his noble and learned Friend had given expression to a test. The Confederated States of America were admitted by Her Majesty's Government to be entitled to exercise the rights of a belligerent Power. That being so, he should wish to know from his noble and learned Friend whether he meant to contend that if an English ship were commissioned by those States and fitted out as a privateer against the Federal Government, her crew would under such circumstances be guilty of piracy? That was not the state of the law on the subject, although many people wished that it was. British subjects so engaged would, no doubt, be answerable to the laws of their own country, for an infraction of the Foreign Enlistment Act, but it was perfectly clear that, on principles of international law, they would not be liable to be treated as pirates. That warning should be given to English seamen by means of the Proclamation was, of course, a most useful and necessary step, and if after that warning they would engage in such expeditions as those to which he was referring, they must, of course, take the consequences of their conduct. If, he might add, the Southern Confederacy had not been recognized by us as a belligerent Power, he agreed with his noble and learned Friend that any Englishman aiding them by fitting out a privateer against the Federal Government would be guilty of piracy. The question was one which arose after the abdication of James II., when he had been expelled from Ireland, and had not a foot of territory in this country, and when, therefore, he was merely a sovereign claiming a right de jure. James II. at that time commissioned cer- 2085 tain persons to fit out privateers against the commerce of this country; and the question having come before the Lords of the Privy Council, they desired to have with respect to it the opinion of learned civilians. Several civilians had, in consequence, attended before the Council, and a report of the proceedings in the case was given in a very grave and curious way by Dr. Tindal, who was one of its members. According to that Report Sir Thomas Pinfold had asserted that the persons to whom the inquiry related were not pirates, and for the following very strange reason—that a pirate must be regarded as hostis humani generis, but that those persons were not enemies to all mankind, and were, therefore, not pirates. Whereupon, the Report said, all "smiled." One of the Lords of the Council asked whether there could ever be such a thing as a pirate if no person could come within that category who was not actually at war with all mankind? To that question it appeared Sir Thomas Pinfold did not reply, but contented himself with repeating what he had said before. One of the Lords, therefore, pressed the learned civilian with another question—he said "Suppose any of their Majesties subjects, by virtue of a Commission from the late King, should by force seize the goods of their fellow subjects by land, would they stand excused of being guilty at least of robbery, and if not, why should they stand excused of piracy?" To that question also the learned civilian made no answer, and for the very good reason, as their Lordships would at once perceive, that there was no good answer to be given; for it was perfectly clear the persons supposed would be guilty of piracy. He was, he might add, of opinion that it was manifest that in the case assumed by his noble and learned Friend, piracy could not fairly be said to exist; and, as the point was one upon which it was desirable no misapprehension should prevail, and his noble and learned Friend had, he thought, left it in some uncertainty, he had deemed it to be his duty to state the opinion which he held on the subject.
THE LORD CHANCELLOR
said, his noble Friend the President of the Council had laid down the law on the point at issue with perfect correctness. If, after the publishing of the present Proclamation, any English subject were to enter into the service of either of the belligerents on the other side of the Atlantic, 2086 there could be no doubt that the person so acting would be liable to be punished for a violation of the laws of his own country, and would have no right to claim any interference on the part of his Government to shield him from any consequences which might arise. There could, however, at the same time be no doubt that, although he would be guilty of a breach of the laws of his own country, he ought not to be regarded as a pirate for acting under a Commission from a State admitted to be entitled to the exercise of belligerent rights, and carrying on what might be called a justum bellum. Anybody dealing with a man under those circumstances as a pirate and putting him to death would, he contended, be guilty of murder.
§ LORD KINGSDOWN
said, that there could be no doubt as to the state of the law on the point—that a privateer acting under a Commission from a Government was not a pirate. No doubt the Government of the United States did not put the extravagant Proclamation they had issued on the ground that privateers were pirates, inasmuch as America had insisted upon maintaining the right of resorting to that mode of warfare when it had been abandoned by the great Powers of Europe:—He supposed the order was based on the ground that they were dealing with rebels, and privateers would be hanged not as pirates but as persons guilty of treason to the State of which they were the subjects. Of course it was a matter for their own consideration what was to be the operation of that Proclamation. He believed that the enforcement of that doctrine would be an act of barbarity which would produce an outcry throughout the civilized world; but he hoped it was a mere brutum fulmen, and not intended to be carried out. But that being the case with regard to their own country, the case with regard to England was quite different. "We had recognized the Southern Confederacy, not as an independent State, but as a belligerent Power; and, therefore, if the Federal Government should act upon the principle they had laid down as against British subjects, he apprehended that the English Government might, with perfect justice, interfere, and under some circumstances they might, by the influence of public opinion, be compelled to interfere. Yet, at the same time, the offender having acted in violation of the laws of his own country, and after notice issued by 2087 the Government that they would not extend protection to him, could not, as a matter of right, call upon his Government to interfere. That, he apprehended, was the state of the case. He must say he thought it impossible that the Government could have framed the Proclamation more prudently than they had done with respect to articles contraband of war. The determination of what was contraband must depend on the circumstances of each particular cargo. Provisions, for instance, though they might be safely sent under other circumstances, yet, if sent to a port where an army of a State at war was in want of food, might become contraband. So with regard to coals. They might be sent for the purpose of manufacture, but if sent to a port where there were war steamers with the view of supplying them coals, then, became contraband. It was, therefore, quite impossible to frame a Proclamation defining what goods were and what were not contraband. "With respect to blockade, again, though the law remained unaltered, the application of it to practice had been very much altered by the introduction of steam-power. A port must be strictly blockaded, but for the purposes of blockade two or three steam vessels might now be as effective as twenty sailing vessels had been formerly. Many questions of nicety had come before the Judicial Committee sitting as a Prize Court of Appeal during the Crimean "War; and he thought this country, now that it was in the situation of a neutral, would have no reason to insist upon any other rules than those which it had acted upon as a belligerent.
hoped and trusted that all persons would take notice of the warning given in the Proclamation, that British subjects if they interfered in the differences prevailing in America must run the risk of whatever penal measures might be adopted by the Americans on one side or the other, and at sea or on land. In the ease which occurred thirty years ago two English subjects were tried and hanged for piratical interference on the land, and not on the sea, and not one step was taken to protect or avenge them.
§ THE EARL OF ELLENBOROUGH
said, the object of the proclamation was certainly to deter Englishmen from engaging upon either side in the unhappy conflict in America, because they were told that if they violated the law of their own country and the law of nations they were 2088 not to expect any protection from their own Government. He feared, however, that the discussion in their Lordships' House that evening might tend to diminish the effect of the Proclamation. But he still hoped that Englishmen would not take any part in those hostilities, and he felt sure that if they did they would be hanged long before diplomacy could interfere on their behalf.