The reservation, then, in favour of confiscating property that is contraband of war has left the right of visiting and searching neutral or hostile merchantmen for contraband untouched; though nothing has been a more fruitful source of quarrel than the want of a common definition of what constitutes contraband. Anything which, without further manipulation, adds directly to an enemy’s power, as weapons of war, are contraband by universal admission; but whether corn and provisions are, as some text-writers assert and others deny; whether coined money, horses, or saddles are, as was decided in 1863 between the Northern Powers of Europe; whether tar and pitch for ships are, as was disputed between England and Sweden for 200 years; whether coal should be, as Prince Bismarck claimed against England in 1870; or whether rice is a war-threatening point of difference between England and France in this very year of grace; these are questions that remain absolutely undecided, or are left to the treaties between the several Powers or the arbitrary caprice of belligerents.

The Declaration of Paris was equally silent as to the right (demanded by all the Powers save England) for ships of war, which have always been exempt from search, to exempt from search also the merchant vessels sailing under their convoy. So fundamental a divergence between the maritime usages of different countries can only be sustained under the peril of incurring hostility and war, without any corresponding advantage in compensation.

The Declaration of Paris has also left untouched the old usage of embargoes. A nation wronged by another may still seize the vessels of that other which may be in its ports, in order to secure attention to its claims; restoring them in the event of a peaceable settlement, but confiscating them if war ensues. The resemblance of this practice of hostile embargo to robbery, ‘occurring as it does in the midst of peace ... ought,’ says an American jurist, ‘to make it disgraceful and drive it into disuse.’[105] It would be as reasonable to seize the persons and property of all the merchants resident in the country, as used to be done by France and England. In 1795, Holland, having been conquered by France, became thereby an enemy of England. Accordingly, ‘orders were issued to seize all Dutch vessels in British ports;’ in virtue of which, several gun-ships and between fifty and sixty merchant vessels in Plymouth Sound were detained by the port admiral.[106] It is difficult to conceive anything less defensible as a practice between civilised States.

It equally descends from the barbarous origin of maritime law that all ships of an enemy wrecked on our coast, or forced to take refuge in our harbours by stress of weather or want of provisions, or in ignorance of the existence of hostilities, should become ours by right of war. There are generous instances to the contrary. The Spanish Governor of Havana in 1746, when an English vessel was driven into that hostile port by stress of weather, refused to seize the vessel and take the captain prisoner; and so did another Spanish governor in the case of an English vessel whose captain was ignorant that Honduras was hostile territory. But these cases are the exception; the rule being, that a hostile Power avails itself of a captain’s ignorance or distress to make him a prisoner and his ship a prize of war; another proof, if further needed, how very little magnanimity really enters into the conduct of hostilities.

It is a still further abuse of the rights of war that a belligerent State may do what it pleases, not only with all the vessels of its own subjects, but with all those of neutrals as well which happen to be within its jurisdiction at the beginning of a war; that it may, on paying the owners the value of their freight beforehand, confiscate such vessels and compel them to serve in the transport of its troops or its munitions of war. Yet this is the so-called jus angariæ, to which Prince Bismarck appealed when in the war with France the Germans sank some British vessels at the mouth of the Seine.[107] It is true we received liberal compensation, but the right is none the less one which all the Powers are interested in abolishing.

If, then, from the preceding retrospect it appears that whatever advance we have made on the maritime usages of our ancestors has been due solely to international agreement, and to a friendly concert between the chief Powers of the world, acting with a view to their permanent and collective interests, the inference is evidently in favour of any further advance being only possible in the same way. The renunciations of each Power redound to the benefit of each and all; nor can the gain of the world involve any real loss for the several nations that compose it. We shall therefore, perhaps, not err far from the truth, if we imagine the following articles, in complement of those formulated in Paris in 1856, to constitute the International Marine Code which will be found in the future to be most calculated to remove sources of contention between nations, and best adapted, therefore, to the permanent interests of the contracting parties:

  1. Privateering is and remains abolished.
  2. The merchant vessels and cargoes of belligerents shall be exempted from seizure and confiscation.
  3. The colonies of either belligerent shall be excluded from the field of legitimate hostilities, and the neutrality of their territory shall extend to their ships and commerce.
  4. The right of visiting and searching neutral or hostile merchantmen for contraband of war shall be abolished.
  5. Contraband of war shall be defined by international agreement; and to deal in such contraband shall be made a breach of the civil law, prohibited and punished by each State as a violation of its proclamation of neutrality.
  6. Except in the case of contraband as aforesaid, all trade shall be lawful between the subjects of either belligerent, since individuals are no more involved in the quarrel between their respective governments at sea than they are on land.
  7. The only limitation to commerce shall be so effective a blockade of an enemy’s ports as shall render it impossible for ships to enter or leave them; and the mere notification that a port is blockaded shall not justify the seizure of ships that have sailed from, or are sailing to, them in any part of the world.
  8. The right to lay hostile embargoes on the ships of a friendly Power, by reason of a dispute arising between them, shall be abolished.
  9. The right to confiscate or destroy the ships of a friendly Power for the service of a belligerent State, the jus angariæ, shall be abolished.

What, then, would remain for the naval forces of maritime Powers to do? Everything, it may be replied, which constitutes legitimate warfare, and conforms to the elementary conception of a state of hostility; the blockading of hostile ports, and all the play of attack and defence that may be imagined between belligerent navies. Whatsoever is more than this—the plunder of an enemy’s commerce, embargoes on his ships, the search of neutral vessels—not only cometh of piracy, as has been shown, but is in fact piracy itself, without any necessary connection with the conduct of legitimate hostilities.