APPENDIX TO PART I.
NOTE A.—The Law of Reprisals.[199]
Reprisals by commission, or letters of marque and reprisal, granted to one or more injured persons, in the name and authority of the Sovereign, constitutes a case of "partial, or special reprisals," and is considered to be compatible with a state of peace, and was formerly permitted by the Law of Nations; though it may be doubted if such a rule would hold good now.[200] General reprisals upon the persons and property of the subjects of another nation are equivalent to open war. It is often the first step which is taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending state.
A stoppage or seizure (in other words, an embargo), must not be confounded with complete reprisals. When ships are seized for the purpose of obtaining satisfaction for a particular injury, or security against a possible event, that seizure is only an embargo. The vessels are preserved as long as there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and the reprisals are accomplished. In fact, that which was embargo becomes reprisals by the act of confiscation.[201]
In the words of Lord Stowell:
"Upon property so detained the declaration of war is said to have a retroactive effect, and to render it liable to be considered as the property of enemies taken in time of war. The property is seized provisionally—an act hostile enough in the mere execution, but equivocal as to its effects, and liable to be varied by subsequent events, and by the conduct of the government, the property of whose subjects is so detained. Where the first seizure is equivocal, if the matter in dispute terminates in reconciliation, the seizure is converted into a mere civil embargo. This would be the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses a hostile character upon the original seizure. It is declared to be embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus by which it was done, that it was done hostili animo, and is to be considered a hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities."[202]
The modern rule seems to be, that tangible property, belonging to an enemy, ought not to be immediately confiscated. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not of itself confiscate the property of an enemy.
Chancellor Kent expressly terms this species of hostility—a reprisal.[203] And Lord Mansfield says, that though foreign ports or harbours are not the high sea any more than the shore, yet numberless captures made there have been condemned as prize,[204] i.e. can be the subject of reprisal.
NOTE B.—War Bill Act.
During the last war, the War Bill Act, 34 Geo. 3. c. 9, was passed as a measure of retaliation. It was passed in order to prevent the effect intended to be produced by an order of the French Government, compelling all merchants, bankers, and others, possessed of money, funded property, and effects, in different parts Europe, to declare all such property, that it might be taken by violence, and applied to the purposes of the war then carried on by the government of France against the greater part of Europe.
The principal sections relating to bills, prohibited any British subject, from and after March 1, 1794, from wilfully and knowingly in any manner paying or satisfying any bill of exchange, note, draught, obligation, or order for money, in part or in whole, which, since January 1, 1794, had been or at any time during the said war should be drawn, accepted, or indorsed, or in any manner sent from any part of the dominions of France, &c.; every person so offending to forfeit double the value, and the payment not to be effectual against any person who might otherwise have demanded the same; but the demands of all persons to remain, notwithstanding such payment, and notwithstanding such bills shall have been delivered up.
NOTE C.—Rule of 1756.
During the war of 1756, the French Government, finding the trade with their colonies cut off by the maritime superiority of Great Britain, relaxed the monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licences or passes, granted for this particular purpose, excluding at the same time, all other neutrals from the same trade. Many of their vessels were captured by the British cruizers.
The policy under which they were captured is called the "Rule of 1756;" and as, in the present war, its justice and propriety has already begun to be doubted, it may not be uninteresting to read the reasons upon which it was founded.
1. They were considered as part of the French navigation, having adopted this otherwise exclusive commerce, and acting in the character of French enemy in identifying themselves with that interest, in direct opposition to the belligerent interests and purposes of Great Britain.
2. Inasmuch as they were only carriers for the French, they were to be regarded as French transports, carrying national assistance to the enemy, and therefore to be condemned on the same principle as vessels carrying troops or despatches.
3. That the property they carried being from one part of the French empire to the other, was so completely identified with French interests as to take a hostile character.
4. When war comes it is necessary to shut some of the avenues of commerce, otherwise the belligerent rights could not be protected.
5. That the neutral ought not to have through and by means of the war, which is not his affair, that he has not in time of peace; and by natural justice he is only entitled to his accustomed trade. That any inconveniences he may suffer are quite balanced by the enlargement of his commerce; the trade of the belligerents is usually interrupted to a great degree, and falls into the lap of the neutral.[205]
6. That it is a direct assistance to the enemy, and an injury to the belligerent interests of the other country, to carry on for the enemy the commerce that she has lost by the pressure of the war,—rendering the efforts of the successful power nugatory.
NOTE D.—Articles that have been declared Contraband at various times.
Gunpowder, arms, military equipments, and other things peculiarly adapted to military purposes.
Sail cloths, masts, anchors, pitch, tar, and hemp, universally contraband, even when destined to ports not of military equipment.
Cheeses, fit for naval use; such as Dutch cheeses, when exclusively used in French ships of war.
Rosin, tallow, and ship biscuits, if destined to ports of military or naval equipment.
Similarly, of Wines.
And ship timber, when so destined.
Ships of war, or ships adapted for such service, going to a port of the enemy for sale.
Copper in sheets, certified by government dockyard officers as fit for the sheathing of ships.
Brimstone, destined to a port of warlike equipment.
NOTE E.—The Late Declarations.
The first manifesto or declaration of war issued by the Queen, so far follows the ancient form, that it gives a justification of the war, but differs from it in the omission of a general command to all her subjects to commit hostilities on the enemy. By this command (in the ancient form), the subjects were in general ordered, not only to break off all intercourse with the enemy, but also to attack him. Custom interpreted this general order. It authorized, and even obliged every subject, of whatever rank, to secure the person and things belonging to the enemy when they fell into his hands; but it did not invite the subjects to undertake any offensive expedition without a commission or particular order. The present manifesto simply proclaims that the Queen of England has taken up arms against Russia, that is, has declared "a state of war." The omission of an injunction to break off intercourse, and to exercise hostility, does not relieve the subject from his duty in that respect; for war may commence without any manifesto, and any official recognition of the "state of war" casts upon the subject his full duties under that condition of things. The ancient form has been judiciously allowed to drop, leading, as it might have done, to misconception on the part of her majesty's lieges.
The second manifesto has reference to regulations with respect to neutral commerce, and speaks for itself.
The third is as follows, and the references to the text will be sufficient to explain it.
DECLARATION.
Her Majesty, the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an Ally, is desirous of rendering the war as little onerous as possible to the powers with whom she remains at peace.
To preserve the commerce of neutrals from all unnecessary obstruction, Her Majesty is willing, for the present, to waive a part of the belligerent rights appertaining to Her by the Law of Nations.
It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war,[206] and of preventing neutrals from bearing the enemy's dispatches,[207] and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbours, or coasts.[208]
But Her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war.[209]
It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships,[210] and Her Majesty further declares, that being anxious to lessen as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissioning of privateers.
Westminster, March 28, 1854.
THE FOURTH DECLARATION.
At the Court at Buckingham Palace, the 29th day of March, 1854, Present, The Queen's Most Excellent Majesty in Council. Her Majesty having determined to afford active assistance to Her Ally, His Highness the Sultan of the Ottoman Empire, for the protection of his dominions against the encroachments and unprovoked aggression of His Imperial Majesty, the Emperor of all the Russias, Her Majesty, therefore, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, that general reprisals[211] be granted against the ships, vessels, and goods of the Emperor of all the Russias, and of his subjects or others inhabiting within any of his countries, territories, or dominions, so that Her Majesty's fleets and ships shall and may lawfully seize all ships, vessels, and goods, belonging to the Emperor of all the Russias, or his subjects, or others inhabiting within any of his countries, territories, or dominions, and bring the same to judgment in such Courts of Admiralty within Her Majesty's dominions, possessions, or colonies, as shall be duly commissionated to take cognizance thereof. And to that end Her Majesty's Advocate-General, with the Advocate of Her Majesty in Her Office of Admiralty, are forthwith to prepare the draft of a Commission, and present the same to Her Majesty at this Board, authorizing the Commissioners for executing the office of Lord High Admiral to will and require the High Court of Admiralty of England, and the Lieutenant and Judge of the said Court, his Surrogate or Surrogates, as also the several Courts of Admiralty within Her Majesty's dominions, which shall be duly commissionated to take cognizance of, and judicially proceed upon, all and all manner of captures, seizures, prizes, and reprisals of all ships, vessels, and goods, that are or shall be taken, and to hear and determine the same; and, according to the Courts of Admiralty and the Law of Nations, to adjudge and condemn all such ships, vessels, and goods, as shall belong to the Emperor of all the Russias or his subjects, or to any others inhabiting within any of his countries, territories, or dominions: and they are likewise to prepare and lay before Her Majesty, at this Board, a Draft of such Instructions as may be proper to be sent to the said several Courts of Admiralty in Her Majesty's dominions, possessions, and colonies, for their guidance herein.
From the Court at Buckingham Palace, this twenty-ninth day of March, one thousand eight hundred and fifty-four.