III.

THE DECLARATION OF PARIS.

ON 30th March, 1856, on conclusion of the war with Russia, there was signed the so-called Treaty of Paris. Subsequently, viz. on 16th April, there was appended to it a Declaration on the part of the signatories that—

1. Privateering is and remains abolished.

2. The neutral flag covers enemy's goods, with the exception of contraband of war.

3. Neutral goods, except contraband of war, are not liable to capture under the enemy's flag.

4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient in reality to prevent access to the coasts of the enemy. The Declaration not to be binding except between the Powers acceding to it (e).

The important bearing of this international treaty on the interests of this country can hardly be understated. That it was distinctly to the advantage of other maritime states that such an engagement should be entered into by a country having command of the seas, must be admitted. With respect to clauses 3 and 4, they are comparatively unimportant: practically they do nothing more than codify principles of maritime warfare which were not in dispute. With respect to clause 1, it certainly tells against this country;

(e) Annual Reg. 1856, p. 322; 46 State Papers, 1855-6, pp. 8, 26.

especially since, owing to the general introduction of municipal regulations by which the chief powers prohibit the fitting out, by their subjects, of vessels to be used in the service of belligerents, this country has little to fear from privateers other than those originally belonging to an enemy state. Besides which, privateering could nowadays in no case be profitably undertaken by other than steam vessels, and it would needs be a difficult problem for such vessels, so far as the other European states are concerned, either to keep themselves adequately supplied with coal or to carry their prizes safely into the national ports. For the resources of this country are such that, even if it were found impracticable to establish an effective blockade of the enemy's chief ports, our cruisers would presumably be sufficiently numerous and alert to render it an exceedingly hazardous task for his privateers to bring in their prizes in safety.

The main object of privateering being plunder, there is little to fear from privateers if the prospects of this be reduced to a minimum: to risk life and liberty in the sole desire to destroy the enemy's commerce without hope of plunder is not the aim of privateers. The Alabama, which, in the American civil war, wrought such destruction upon the Federal commerce, was not, be it remembered, a privateer, but a Confederate warship.

That this country, in signing away its right to make use of privateers, must be considered to have lost the use of a very powerful weapon of offence, is sufficiently obvious. But, notwithstanding, the system of privateering, with the thirst for gain and the evil passions which it engenders, is so out of harmony with the principles of modern progress and civilization, that, from this view, the loss is attended by conditions which go far to mitigate it. And in abandoning the right to commission private vessels of war, this country has by no

means necessarily deprived itself of the power to throw into

the scale against the enemy such of the vessels of the national merchant marine as could with advantage be turned to this use. There is nothing to prevent the equipment and commissioning of these vessels as national cruisers. During the Franco-Prussian war, a decree was issued by Prince Bismarck authorizing the formation of such a, so-called, Volunteer Navy (f); and a similar fleet is at the present moment sailing under the Russian flag.

A mail steamer, with its high speed and great capacity for carrying coal, would, with a few long-range quick-firing guns and a torpedo launch, be readily converted into a highly effective public vessel. And the prohibition against privateering would not, it may be supposed, prevent mail or other steamers from carrying such defences under letters of marque for their own protection.

The most serious item in the treaty is clause 2, which exempts from capture enemy goods under the neutral flag. In abandoning this right, Great Britain has, it is asserted, not only given away the power to harass the enemy by cutting off his supplies, but what is far more important, has suspended over the national shipowning interest a sword which, on this country's becoming engaged in hostilities, may descend upon it with consequences the most disastrous. To the loss of the right to seize the enemy's goods is presumably to be attached but a secondary importance, for the facilities of inland carriage are in the present day such that a continental power at war with this country would have little difficulty in trading through neighbouring neutral ports, the property being so documented as to place it beyond the reach of condemnation by a Prize Court of the captors. What is to be especially feared is lest, on the outbreak of war directly involving Great Britain, shipment under the British flag should be universally

(f) Vide p. 100, infra.

avoided. British vessels being liable to capture by the enemy, it may reasonably be supposed that merchants, whether British or foreign, would not, during hostilities, ship by a British vessel so long as a neutral bottom was available; for although the neutral cargo could not be condemned, it would, under the British flag, be exposed to the risks of war; and in the event of the capture and condemnation of the vessel, it might be indefinitely detained in some foreign port. Other objections are raised to the Declaration of Paris by writers who have made it their special study, but the foregoing brief reference to the subject is considered sufficient for the purposes of this work (g). The circumstances in which the Declaration was signed by the British representatives seem to be involved in some obscurity, and certainly it might well have been expected that the signing and ratification of a treaty of such exceptional importance would have been attended with a greater degree of formality than was actually observed. The engagement itself is, moreover, of the crudest description. It establishes principles, but makes no sort of attempt to define their application to cases. Thus, for example, supposing that this country, bound by the Declaration not to seize the enemy's goods in neutral vessels, were to be engaged in war with the United States-a country not bound by the Declaration-what, as has been very pertinently enquired, would, under the Declaration, be the position? For while, according to the Treaty, we should be precluded from taking American property out of vessels owned by neutral states, signatories of the treaty, American cruisers would be under no corresponding disadvantage, but would, under the law of nations, have an undoubted right to carry into port, for examination, any neutral vessels reasonably

(g) For an exhaustive criticism of the Declaration, see copy of an Address delivered by T. G. Bowles to the London Chamber of Commerce, 17th July,

1888.

supposed to be engaged in conveying the property of British subjects.

Again, while prohibiting the capture of neutral goods on enemy vessels, the Declaration makes no provision for the case where the belligerent carrying-ship is destroyed by the enemy, and the neutral goods are thus involved in the destruction of the vessel (h). And if the Declaration is to be accepted-as, indeed, it reads-as an abstract and unqualified enunciation of the principle that neutral goods (except contraband of war and "Expressio unius est exclusio alterius ") are always to be free from capture under the enemy's flag, it follows that neutrals may henceforth with impunity ship by armed vessels of the enemy or under enemy convoy, though goods so shipped have hitherto been held by our Courts to be subject to confiscation (i).

Lord Mansfield's remark () on the subject of marine policy clauses-that it was amazing that some advice was not taken in framing them, or that more consideration was not bestowed upon them by the framers--might with advantage have been borne in mind by those concerned in framing, at any rate, clause 2 of a document of such vital importance to the national interests of this country.

If the Declaration is to be regarded as finally and irrevocably adopted by this country, it is much to be desired that its clauses should be carefully considered and so supplemented as to provide for the various important contingencies. which are likely, sooner or later, to arise in connexion with them. If, on the other hand, the Declaration as it now stands should be deemed detrimental to the national wellbeing of this country, the sooner that steps are taken to withdraw from it the better. Any parties to the treaty

(h) Vide The Ludwig and Vorwärts, pp. 333, 357, infra.

(i) Vide p. 213, infra.

(k) In Simond v. Boydell, Doug. 255.