1599937Handbook of Maritime Rights — Chapter 12Henry Alexander Munro-Butler-Johnstone

I HAVE now gone through the principal points connected with Maritime Rights. I will conclude by enumerating some of the current fallacies that we constantly hear propounded on the subject. They may be termed eidola maritima and are divisible into:—

1. The eidolon vulnerable, viz., that "our area of vulnerability" is so great that we must necessarily suffer more than our enemy by maritime captures. I have, I think, dealt fully with this idol in the last chapter.

2. The eidolon invulnerabile, viz., that after all our maritime power is so overwhelming that we could at any rate blockade all our enemy's coasts, and seal up his ports, which would make maritime captures unnecessary. It is superfluous to remark that this idol is in flagrant contradiction with the last, and I would leave them to fight it out between them if I had not particularly examined the subject of blockade in Chapter I.

3. The eidolon timidum, or the coward's plea, viz., that, however advantageous to us maritime rights might be, neutral nations would never allow us to exercise them, and therefore it is better to give up with a good grace in peace what we should not be allowed to profit by in war.

I will answer this objection both generally and particularly. Speaking generally, it is a gross reflection on the courage and manliness of our country to insinuate that England, that knew how to vindicate triumphantly her maritime rights against coalesced Europe at epochs of extreme national difficulty and peril, has no longer the spirit to maintain them in this the heyday of her prosperity, and in the fulness of her strength. If such were the case, cadit guæstio, maritime rights are indeed gone, and with them all that is great and glorious in English story.

Examining the matter particularly, the assumption is gratuitous. The game of maritime coalition against England has been played out. Twice, nay three times, it has been tried, and once at any rate under singularly favourable auspices, and each time it came to lamentable grief. The coalesced Neutrals went to war, or threatened to go to war, to secure the carrying trade of the weaker belligerent. Instead of getting it they lost their own. European interests too have changed. Formerly it was considered that England's maritime interests were in one scale, and in the other the general interests of all Continental nations. The first Napoleon's Continental system was the outcome and the evidence of this belief. It is now seen that it is not at all a question of England's interests on the one side and those of Continental nations on the other, but of maritime power as such against all other forms, of power, and that Continental nations, in so far as and just in proportion as they are maritime powers too, have precisely similar interests to those of England in the matter. It now begins to be pretty clearly seen that France could never have been crushed in the last war by the simple dead weight of Germany's military power, if she had not, some fourteen years before, recklessly signed away her maritime power. The Zollverein has annually some £40,000,000 of produce afloat. Had France sequestrated this property on the first shot fired against her, and put a veto on German commerce on the ocean, Germany could not have supported the burden of war for six months. Nay, war would never have been declared against her, for Southern Germany, on whom the loss would principally have fallen, would not at such a price have accepted the military hegemony of Prussia. By adhering to the Declaration of Paris France fought Germany with one hand tied behind her back. Her adversary's iron hand was heavier than her remaining hand, but it would have been no match for her if she had been able to put forth her strength in both directions. Providence made her, by geographical configuration and the character of her populations, a maritime as well as a military nation, but she deliberately threw away one half of her natural advantages, and the Capitulation of Paris of 1871 was the first fruits and natural consequence of the Declaration of Paris of 1856. It is perfectly obvious that the interests of all maritime nations (England, France, Denmark, Spain, Italy, and the United States) are identical in this matter, although opposed to those of the purely military Powers, Germany, Russia, and Austria.

4. A new idol has lately sprung up of too modern date to boast of a Latin denomination. It may be called the sea-lawyers' idol. It is of the amphibious tribe: it does not belong to the sea because the sea repudiates it; it does not belong to the law because its subject-matter is purely naval. It maintains that modern changes in naval warfare, especially the invention of shells, render convoy no longer possible; that the enemy (no more able, it is true, to capture English convoys than formerly) can, in spite of convoy, sink and destroy our merchantmen on the high seas; and it challenges the opinions of naval officers on the subject.

In spite of the well-known aversion of sailors to newspaper controversies, no less than four admirals[1] (an unprecedented fact I believe in the history of journalism) respond to the challenge of the sea-lawyer, and pledge their professional reputation to the opinion that the sea-lawyer is entirely mistaken, and that convoy, although the conditions of it are altered, is as feasible now as ever in the history of naval warfare. I have heard naval officers affirm that they would rather fight a frigate than a sea-lawyer; but it must be confessed that, on this occasion at any rate, our admirals have given a very good account of the sea-lawyer in question. Requiescat in pace. Powder and shot must be cheap now-a-days!

5. Lastly, we have the eidolon fraudulosum which pretends that, however advantageous to England and maritime nations generally may be the exercise of maritime rights, the weaker belligerent, with the aid of interested neutrals, is always able, by means of "neutralizing" contrivances of various kinds, false papers, bills of sale, clearances, invoices, muster rolls, &c., to defeat the processes of prize courts and secure immunity to enemies' goods. It is useless therefore, it is said, to maintain in theory a right which in practice cannot be enforced.

This argument is pretty much the same as if one were to maintain that because pickpockets, coiners, burglars, and forgers often escape detection and punishment, therefore police courts, judges, and prisons had better be abolished and their expenses saved. Frauds on a stupendous scale, especially in the war of 1792, no doubt took place. Regular "neutralizing" establishments were founded—no less than fifty of them in the town of Emden alone—and a whole machinery of "neutralizing" contriavnces was set in action which reduced fraud to a system and rendered naught the vigilance of our cruisers. But, in the first place, these frauds were rendered possible not by what I may call the Common Law on the subject of maritime capture, but by our complicated and ill-devised Orders in Council, suspending, limiting and qualifying that Common Law, and ought to have been met by a return to the Common Law and the suspension of the Orders in Council. In the next place, they were rendered possible by the want of elasticity in the rules of evidence adopted in our prize courts, and were to be met by a change in that procedure. For instance, the question raised in our courts was not whether a ship's papers were bonâ fide but whether they were in order, and the point orally investigated was to ascertain whether the master and crew of the captured vessels swore in conformity with the ship's papers, and if that turned out to be the case the ship was released, however probable it might appear that papers, swearings, and all were false, and the neutrality of the vessel only colourable. It was not difficult to drive a three-decker through such a mode of procedure. Every kind of device was had recourse to in order to bring belligerent property to what was called a "safe-footing." The Standing Interrogatories of the English prize courts became a subject of careful study. A book called Vraagen en Antwoorden was published in Holland, suggesting the proper answers to be given to these Standing Interrogatories by masters of captured vessels so as to escape condemnation; and in the ship's papers of a prize taken into Harwich the specific answers which would suit the case of the vessel in question were found jotted down in pencil on the margin of the pages of Vraagen en Antwoorden opposite to the "Standing Interrogatories of the English Prize Courts." These frauds all flourished conspicuously during the Revolutionary War of 1792, and were, as I have said, called, in a great measure, into existence by the Orders in Council of 1793, 1794, and 1798. In the war of 1803 our prize courts began to see their way to check them, and some of the Orders in Council I have just mentioned were not renewed. Finally, there is a weapon stored in the arsenal of Maritime Rights which can checkmate these frauds, and neutralize even neutralizing ingenuity, viz., prohibiting the importation of enemies' produce, and, if necessary, sequestrating it on the high seas.

The fact is, and this the secret of the whole business, it is not an intellectual difficulty which opposes itself to the resumption of Maritime Rights. The difficulty is purely moral. The Rights were not abandoned in consequence of the force of the arguments urged for their abandonment. They were first surrendered, and then arguments were invented to justify the surrender. The fallacies which I have been examining in this chapter are the net produce of this ex post facto process. They are a sorry lot after all, and the first maritime people that has the courage to say "We will resume our maritime rights," will see these phantom idols, like "gibbering ghosts," disappear in the mists of the ocean.

  1. Rear-Admiral Sir F. Leopold McClintock, F.R.S.; Vice-Admiral Sir George Nathaniel Broke Middleton, Bart,; Vice-Admiral W. King Hall; and Admiral Sir Henry Keppel, K.C.B.—Cf. Pall Mall Gazette, August 19, 1876.