There are at least two “facts” patent to all: first, that Rebel Slavery is without a single port into which even legal cruisers can take prizes for adjudication; and, secondly, that the ships which now presume to exercise ocean belligerent rights in its name—constituting that navy which a member of the British Cabinet announced as “to be created”—were all “created” in England, which is the naval base from which they sally forth on predatory cruise, without once entering a port of their own pretended government.
These two “facts” are different in nature. The first attaches absolutely to the pretended power, rendering it incompetent to exercise belligerent jurisdiction on the ocean. The second attaches to the individual ships, rendering them piratical. These simple and unquestionable “facts” are the key to unlock the present question.
From the reason of the case, there can be no ocean belligerent without a port into which it can take prizes. Any other rule is absurd. It is not enough to sail the sea, like the Flying Dutchman; the ocean belligerent must be able to touch the land, and that land its own. This proceeds on the idea of civilized warfare, that something more than naked force is essential to the completeness of capture. According to the earlier rule, transmutation of property was accomplished by the “pernoctation” of the captured ship within the port of the belligerent,—or, as it was called, deductio infra præsidia. As early as 1414, under Henry the Fifth of England, there was an Act of Parliament requiring privateers to bring their prizes into a port of the kingdom, and to make a declaration thereof to a proper officer, before undertaking to dispose of them.[145] The modern rule interposes an additional check upon lawless violence, by requiring the condemnation of a competent court. This rule, which is among the most authoritative of the British Admiralty, is found in the famous letter of Sir William Scott and Sir John Nicholl, addressed to John Jay, as follows: “Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a Court of Admiralty, judging by the Law of Nations and treaties.”[146] This is explicit, and is plainly necessary for the protection of neutral commerce. But this rule is French as well as English. It is part of International Law. A seizure is regarded merely as a preliminary act, which does not divest the property, though it paralyzes the right of the proprietor. A subsequent act of condemnation by a competent tribunal is necessary to determine if the seizure is valid. The question is compendiously called Prize or No Prize. Where the property of neutrals is involved, this requirement becomes of absolute necessity. In conceding belligerence, all customary belligerent rights with regard to neutrals are conceded also, so that neutral rights and interests are put in jeopardy. Here we see at once the wrong done. If nothing is due to Civilization, something is due to neutrals. Without dwelling on this point, I content myself with the authority of two recent French writers. M. Hautefeuille, in his elaborate work, says: “The cruiser is not recognized as the proprietor of the objects seized, he cannot dispose of them, but it is his duty to present himself before the tribunal and obtain a sentence declaring them to be prize.”[147] A later writer, M. Eugène Cauchy, whose work has appeared since our war began, says: “A usage which evidently has its source in natural equity requires, that, before proceeding to divide the booty, there should be an inquiry as to the regularity of the prize. Every prize taken from an enemy should be carried before the judge established by the sovereign of the captor.”[148] But if the power calling itself belligerent cannot comply with this condition,—if it has no port into which it can bring the captured ship, and no court, according to the requirement of the British Admiralty, with “a regular judicial proceeding wherein both parties may be heard,”—it is clearly not in a situation to dispose of a ship or goods as prize. Whatever its force in other respects, it lacks a vital element of ocean belligerence. In that semi-sovereignty which constitutes belligerence on land there must be provision for the administration of justice, without which there is nothing but a mob. In that same semi-sovereignty on the ocean there must be similar provision. It is not enough that there are ships duly commissioned to take prizes, there must also be courts to try them; and the latter are not less important than the former. Such is the conclusion of reason, in harmony with acknowledged principles. How, then, acknowledge belligerent rights where this condition is wanting?
Earl Russell himself, so swift to make this concession, is led to confess the necessity of Prize Courts on the part of ocean belligerents, and thus exposes the irrational character of his own work. In a letter to the Liverpool Chamber of Commerce, occasioned by the destruction of British cargoes, the Minister says: “The owners of any British property, not being contraband of war, on board a Federal vessel captured and destroyed by a Confederate vessel of war, may claim in a Confederate Prize Court compensation for destruction of such property.”[149] Even in the very speech announcing the belligerent rights of our Rebels, including the right to visit and detain British merchant vessels having enemy’s property on board and to confiscate such property, Earl Russell was compelled to declare, that “it was necessarily implied, as a condition of such acknowledgment, that the detention was for the purpose of bringing the vessels detained before an established Court of Prize, and that confiscation did not take place until after condemnation by such competent tribunal.”[150] Such was the express condition, obviously to secure justice. If there be no Prize Court, then justice must fail; and with this failure tumbles in fact the whole wretched pretension of ocean belligerence, except in the galvanism of a Queen’s proclamation or a Cabinet concession.
If a cruiser may at any time burn prizes, it is because of some exceptional exigency in a particular case, and not according to general rule, which practically declares that there can be no right to take a prize, if there be no port into which it may be carried. The right of capture and the right of trial are the complements of each other, through which a harsh prerogative is supposed to be rounded into the proper form of civilized warfare. Therefore every ship and cargo burned by the captors for the reason that they had no port testifies that they are without that vital sovereignty on the ocean which is needed in the exercise of belligerent jurisdiction, and that they are not ocean belligerents in fact. Nay, more, all these bonfires of the sea cry out against the power which by precipitate concession furnished the torch. As well invest the rebel rajahs of India, who never tasted salt water, with this ocean prerogative, so that they too may rob and burn; as well constitute land-locked Poland, now in arms for independence, an ocean belligerent,—or enroll mountain Switzerland in the same class,—or join with Shakespeare in giving to inland Bohemia an outlook upon the ocean.[151]
To aggravate this concession, the ships are all built, rigged, armed, and manned in Great Britain. It is out of British oak and British iron that they are constructed, rigged with British ropes, made formidable with British arms, provided with British gunners, and navigated by British crews, so as to constitute in all respects a British naval expedition. British ports supply the place of Rebel Slavemonger ports. British ports are open to them, when their own are closed. British ports constitute their naval base of operations and supplies, furnishing everything needful, except an officer, the ship’s papers, and a court for the trial of the prizes, each of which is essential to the legality of the expedition. And yet these same ships, thus equipped in British ports, and never touching a port of the pretended government in whose name they rob and burn,—being simply a rib taken out of the side of England and prostituted to Rebel Slavery,—receive the further passport of belligerence from the British Government, when in fact the belligerence does not exist. The whole proceeding, from the laying of the keel in a British dockyard to the bursting flames on the ocean, is a mockery of International Law and an insult to a friendly power.
The case is sometimes said to be new; but it is new only as no such “parricide” is provided against in express terms. It was not anticipated. But the principles which govern it are as old as justice and humanity, in the interests of which belligerent rights are said to be conceded. Here it is all reversed, and it is now apparent, that, whatever the motives of the British Government, the concession was in behalf of injustice and inhumanity. Burning ships and scattered wrecks are the witnesses. If such a case is not condemned by International Law, then has this law lost its virtue. Call such cruisers by whatever polite term most pleases the ear, and you do not change their character with their name. Without a home and without a legal character, they are mere gypsies of the sea, disturbers of the common highway, outlaws, and enemies of the human race.
There is a precedent which shows how impossible it is for a pretended power, without a single port, to possess belligerent rights on the ocean, and how impossible it is for the ship of such pretended power to be anything but a felon ship. James the Second of England, after he had ceased to be de facto king, and while an exile without a single port, undertook to issue letters of marque. It was argued unanswerably before the Privy Council of William the Third, that a deposed prince could not receive from any other sovereign “international privileges”; “that, if he could grant a commission to take the ships of a single nation, it would in effect be a general license to plunder, because those who were so commissioned would be their own judges of whatever they took”; and “that the reason of the thing, which pronounced that robbers and pirates, when they formed themselves into a civil society, became just enemies, pronounced also that a king without territory, without power of protecting the innocent or punishing the guilty, or in any way of administering justice, dwindled into a pirate, if he issued commissions to seize the goods and ships of nations, and that they who took commissions from him must be held by legal inference to have associated ‘sceleris causâ’ and could not be considered as members of a civil society.”[152] These weighty words are strictly applicable to the present case. Whatever the force of Rebel Slavery on land, it is no more on the ocean than the “deposed prince,” “without power of protecting the innocent or punishing the guilty, or in any way of administering justice”; and, like the prince, it has “dwindled into a pirate,” except so far as sustained by British concession. In adducing this precedent, I follow the learned ex-Chancellor, Lord Chelmsford, who used it to show, that, without the concession of belligerent rights to our Rebels, “any Englishman aiding them by fitting out a privateer against the Federal Government would be guilty of piracy.”[153] But the reasoning at the Privy Council shows, also, that the concession ought not to have been made.
There is yet another British precedent, which shows how essential are judicial proceedings before appropriation of a captured ship or cargo. The case is memorable. It is none other than that of the famous Captain Kidd, who, on indictment for piracy, as long ago as 1701, produced a commission in justification. But it was at once declared not enough to show a commission; he must also show condemnation of the captured ship. The Lord Chief Baron of that day said, that, “if he had acted pursuant to his commission, he ought to have condemned the ship and goods”; that “by his not condemning them he seems to show his aim, mind, and intention; that he did not act in that case by virtue of his commission, but quite contrary to it, for he takes the ship and shares the money and goods, and is taken in that very ship, … so that there is no color or pretence appears that he intended to bring this ship to England to be condemned or to have condemned it in any of the English plantations”; and that, “whilst men pursue their commissions, they must be justified, but when they do things not authorized, or never acted by them, it is as if there had been no commission at all.”[154] Captain Kidd was condemned to death and executed as a pirate. If he was a pirate, worthy of death, then, by the same rule, those rovers who rob cargoes, burn ships, and adorn their cabins with rows of stolen chronometers, careless of a Prize Court, are entitled to small favor from a civilized power.