Doc. 168.-by the Queen-a proclamation.
--London Gazette, May 14.
Discussion in the House of Lords.
In the House of Lords, on the 16th ult., the Earl of Ellenborough said he wished to put a question to his noble friend the Lord President, on the subject of Her Majesty's recent proclamation. It seemed to him to be of essential importance that the proclamation which instructed Her majesty's subjects how they were to conduct themselves with regard to the unfortunate war which now existed in America, should be so clear and unambiguous, that it should not be necessary for a man to consult his lawyer how it should be interpreted, or if he did consult his lawyer, that the lawyer should have the means of giving a clear answer, which as things now stood, he did not think he had. As to the law of England, the proclamation was clear enough, but it was different with regard to that part which treated of the law of nations. A great deal of doubt existed as to the meaning of the proclamation on that point. Her Majesty's subjects were “warned not to break or endeavor to break any blockade lawfully and actually established by either of the belligerent parties.” Now, he wanted to know in what sense they were to understand the expression, lawfully and actually established. They were at present under an obligation to adhere to the Maritime law agreed to by the Plenipotentiaries at the Congress of Paris, which declared that, “in order to be binding, a blockade must be an effectual blockade” --that was to say, that it should be maintained by a force sufficient to prevent access to the enemy's coasts. If these words were to e understood in their strict literal signification, a blockade was a thing almost physically impossible, because no nation in the world possessed a fleet large enough for this purpose. It must, therefore, be capable of receiving some explanation. Blockades were carried on by ships at sea, and by ships under [248] sail, because no ships could carry coal enough to keep up a constant blockade by steam. During the war of the Revolution, he recollected, when their ships were blockading Toulon, they were on one occasion driven by storm across the Mediterranean to the coasts of Africa. Such an event might occur again, and, according to the strict literal meaning of the words, if it did, it would not be an effective blockade. Therefore, the words must be susceptible of some explanation, and he thought they must be understood with that qualification which commanded all the operations of man at sea — namely, wind and weather. If the words were to be taken with that qualification, then he thought it was to be regretted that Her Majesty's Government, instead of adopting words totally new, had not adopted the usual form, namely, “lawfully established and effectually maintained,” because a blockade was not lawful unless it was effectual. He wished to know in what sense they were to understand the words used in the proclamation. Did they intend to convey the exact meaning of the words used in the Treaty of Paris, or, on the other hand, did they intend to qualify it? As to the second question, he could not help regretting that there was so much vagueness in the expression, “contraband of war according to the law and modern usage of nations.” How were plain men to find out what was considered contraband of war by the law and modern usage of nations? They must look to all the recent decisions of the Courts of Admiralty, not only in this, but in foreign countries, and it was probable that those decisions would be found conflicting. He wished to know what were the further articles not mentioned, to which the proclamation applied, and which Her Majesty's subjects were cautioned not to convey. He apprehended that the articles contraband of war were constantly changing, and followed all the alterations made in the mode of conducting war. The time was when the armor alone would have been considered contraband of war. But he thought he had read in books of law that all these changes were controlled by one principle, which was that contraband of war was that which, in the possession of an enemy, would enable him the better to carry on the war. That was clear, reasonable, and intelligible to every one. He regretted that Her Majesty's Government did not go back to that principle which all could understand, instead of using new words; he therefore wished to know what were the articles not mentioned to which the proclamation referred.Earl Granville said the questions put by the noble Earl were very important and very difficult to answer. At the same time it was his duty to give the noble Earl all the information in his power. If, however, he fell into any mistake on the subject, he should feel grateful to any noble and learned lord on either side of the house to correct him. With regard to the first question as to the meaning of the words “lawful and actual blockade,” he thought the noble Earl somewhat embarrassed the question by referring to the Declaration of the Congress of Paris. He apprehended that no change had been made by that Declaration as regarded those countries who were not parties to that agreement. The question of international law remained the same as previously, except with regard to paper blockades, which were formerly held to be good. There was no doubt that blockade was lawfully and actually established, if maintained in a proper form and manner, and by such a force as to make it, not impossible, but difficult, for vessels to enter or come out. It was more difficult to give an answer to the second question put by the noble Earl. But the Government pursued the same course on the present occasion as had formerly been pursued. The noble Earl had partially answered his own question, because he had admitted that the meaning of contraband of war must vary with the changes in the mode of conducting war. Certain articles were clearly contraband of war, and the character of others could only be determined by the decision of the prize courts. Her Majesty's Government, therefore, had pursued a wise course, in his opinion, in not specifying what was contraband of war. [Hear, hear.]
The Earl of Derby said the answer of the noble Earl was entirely satisfactory. He did not feel inclined to complain of the terms of the proclamation as being vague and uncertain. It was impossible to introduce such a definition of a blockade, or of contraband of war, as his noble friend seemed to wish should be laid down. Nor did he complain of the proclamation as going beyond the necessity of the case-he meant as to the warning given to all British subjects with regard to their taking part in privateering expeditions. The proclamation wisely and properly informed the subjects of Her Majesty that whatever might be the result, if they engaged in these expeditions they would have no right to claim the protection of this country in case of any penal consequences arising from their own act. He did not complain of that extensive and solemn warning being given. But there were two points upon which it was absolutely necessary that Her Majesty's Government should lose no time in coming to a thorough understanding with the Government of the United States. First, with regard to this blockade, the Northern States have given notice of their intention to blockade the whole of the Southern ports. Now they knew that even if the fleet of the United States was three times as numerous as it was, it was not in their power to effectually blockade the whole coast of the Southern States; and though, no doubt, they might effectually blockade a port here and there, it was important that Her Majesty's Government should not commit themselves to the doctrine that the United States were to lay down the principle of a universal blockade, or that that universal blockade would be recognized [249] by Her Majesty, or that all Her Majesty's subjects would be liable to penalties. Her Majesty's Government should make it clearly understood that a mere paper blockade, alleged to extend over a wide extent of coast which it was impossible to blockade, would not be recognized as valid by the British Government. But there was another more important point. Words had been used by his noble and learned friend on a previous occasion, which, coming from such high authority, might give rise to serious consequences if misconstructed. His noble and learned friend said that by the law of nations privateering was piracy, and if that were so, the Northern States would be justified in carrying out the theory and treating privateering as piracy. He apprehended that if any thing was clearer than another, it was that privateering was not piracy, and that no law could make that piracy, as regarded the subjects of one nation, which was not piracy by the law of nations. (Hear, hear.) Consequently the United States must not be allowed to entertain this doctrine, and to call upon Her Majesty's Government not to interfere. They must not strain the law so as to visit with penalty of death, as for piracy, persons entitled to Her Majesty's protection. That was a question which could not be viewed with indifference, but must be seriously considered by the Government. It is quite right that the people of this country should be warned of the peril; but, on the other hand, it was essential that the United States should not be induced to deny the general interpretation of international law, and to inflict a punishment on privateering which was never inflicted by that law. He knew it was said that the United States treated the Confederate States of the South as mere rebels, and that as rebels these expeditions were liable to all the penalties of high treason. That was not the doctrine of this country, because we have declared that they are entitled to all the rights of belligerents. The Northern States could not claim the rights of belligerents for themselves, and, on the other hand, deal with other parties not as belligerents, but as rebels. These were the two points on which it was most desirable that no misunderstanding should exist between the Government of Her Majesty and the United States--that we would not recognize any thing but a clear and effectual blockade actually enforced, and that we would not recognize the doctrine that any declaration or law of the United States against the Southern States should have the power, as regarded others, of constituting privateering piracy, and visiting it with all the penalties attached to piracy. (Hear, hear.)
Lord Brougham said it was clear that privateering was not piracy by the law of nations, however much it might be lamented that it was not so. But if any person or subject of this country entered into an expedition against another country, with which we were at peace, that was of itself a piratical act, and they had themselves to blame who, after full warning, chose to take that course, and could not expect their Government to interpose to save then from the extreme penalties attached to that course. As had been said in the previous discussion upon this subject, their blood would be upon their own heads. With regard to articles contraband of war, it would have been much better if the Government could have introduced some invariable, certain, and definite descriptions, but with the progress in naval science things become contraband of war which were not so before, and it was impossible, therefore, to lay down any fixed or invariable terms. He entirely agreed with his noble friend in holding that it was not necessary to constitute a blockade that every port of the coast should be so blockaded as to make entrance impossible, but it was enough that it should be made such as to afford a reasonable chance that no entrance could be effected.
Lord Chelmsford thought it might be as well to bring his noble and learned friend's opinion to a test. The Southern Confederation was admitted by the Government of this country to be a belligerent Power. Now, he wanted to know whether his noble and learned friend meant to say that if an Englishman was commissioned by the Southern Confederation — it being recognized as a belligerent Power--to fit out a privateer against the Federal Government, that that person, under those circumstances, would be guilty of piracy. That he ought to be, was the opinion of many judges. [The Lord Chancellor: “No, No.” ] Well, it was the opinion of many. Now, undoubtedly those persons would be answerable to their own Government for an infraction of the Foreign Enlistment Act; but it was clear, upon the question of international law, that they would not be liable to be treated as pirates. The warning given by the proclamation was very useful and most necessary; and if persons would engage in expeditions of this kind after the notice that the Government would not interfere, they must take the consequences they had drawn upon themselves. If the Southern Confederacy had not been recognized as a belligerent Power, he agreed with his noble and learned friend, that, under those circumstances, if any Englishman were to fit out a privateer for the purpose of assisting the Southern States against the Northern States, he would be guilty of piracy. (Hear, hear.) And the question arose, after the abdication of James II., when he commissioned persons to fit out enterprises against the commerce of this country. The question arose after James II. had been expelled from Ireland, and when he had not a foot of territory there, and when, therefore, he was merely claiming the right de jure. Now the question came before the Lords of the Privy Council, and they desired to have the opinions of learned civilians, and a report was given in a very grave and curious way by Dr. Tindal, who was one of the counsel. Sir [250] Thomas Pinfold had asserted that those persons were not pirates, and for a very strange reason — he said he argued against this being piracy, as it was impossible they could be pirates, for a pirate was hostis humani generis--but they were not enemies to all mankind, and therefore they were not pirates. (Laughter.) Whereupon, the report said, “all smiled.” (Renewed laughter.) And hoe was asked if there was any such thing as piracy, if to be a pirate a man must be at war with all mankind? To which, as was natural, Sir Thomas made no reply, but only repeated what he had laid down before. (Laughter) Upon which one of the Lords of the Privy Council pressed the learned civilian with another question. He said: “Supposing any of His Majesty's subjects, by virtue of a commission of the late King, should by force seize the goods of their fellow-subjects by land — whether that would excuse them from being guilty at least of robbery; and if it would not of robbery, why should it more excuse them of piracy?” To which he made no reply. Now it was perfectly clear, under these circumstances, that those parties would be guilty of piracy, but he thought it was equally clear that in the case assumed by his noble and learned friend they would not be guilty of piracy. That was a matter that ought to be clearly understood, and as his noble and learned friend had, he thought, left it in some uncertainty, he had taken the liberty of trespassing upon their lordships' attention--(hear.)
The Lord Chancellor said his noble friend, the President of the Council, had laid down the law upon this subject in a perfectly correct manner. There was no doubt that if an Englishman engaged in the service of the Southern States, he violated the laws of the country and rendered himself liable to punishment, and that he had no right to trust to the protection of his native country to shield him from the consequences of his act. But though that individual would be guilty of a breach of the law of his own country, he could not be treated as a pirate, and those who treated him as a pirate would be guilty of murder. (Hear, hear.)
Lord Kingsdown said, as to the state of the law there could be no doubt a privateer acting under a Government was not a pirate. No doubt the United States did not put the extravagant proclamation they had issued upon the ground that privateers were pirates, because they themselves insisted upon the right of privateering. But they put it upon this ground, that they were dealing with rebels, and that they would hang them not, properly speaking, as pirates, but as persons who were guilty of high treason against the State to which they were subject. (Hear, hear.) Of course it was a matter for their own consideration what was to be the operation of that proclamation. He believed that the enforcement of that doctrine would be an act of barbarity which would produce an outcry throughout the civilized world, but he hoped that it was a mere brutum fulmen, and not intended to be carried out. But that being the case with regard to their own country, the case with regard to England was quite different. We had recognized the Southern Confederacy, not as an independent State, but as a belligerent Power; and therefore, if the Federal Government should act upon the principle they had laid down as against British subjects, he apprehended that this Government might with perfect justice interfere, and under some circumstances they might, by the influence of public opinion, be compelled to interfere. (Hear, hear.). Yet, at the same time, the offender could not as a right, having acted in violation of the feeling of his own country, and therefore of his own Government, call upon his Government to interfere. That, he apprehended, was the state of the case, and he must say he thought it impossible that the Government could have framed the proclamation more prudently than they had done with respect to articles contraband of war. For instance, provisions might become contraband of war, if sent to a port where there was an army of a State at war, and that army was in great want of provisions. Again, coals sent to a country at war, if sent for manufacturing purposes, were not contraband of war; but they would become so if sent where there were war steamers, and for the purpose of supplying those war steamers. It was, therefore, quite impossible to frame a proclamation under which there would be no difficulty of definition. With respect to the matter of blockade, the practice had been very much modified and altered by the introduction of steam, as one steamship would take the ground of a number of sailing vessels; but it had been held that a blockade could not be constituted by drawing a line which would prevent vessels from going to particular ports to which they had a right to go.
Lord Brougham hoped and trusted that all persons would take notice of the warning given in the proclamation that British subjects serving in the American war must run the risk of whatever penalty they might be liable to, whether they served on the one side or the other, at sea or on land. A case had occurred about thirty years ago, where two British subjects were tried and hanged for piratical interference on land, and no step was taken to save their lives or avenge their death.
The Earl of Ellenborough said the object of the proclamation was certainly to deter Englishmen from engaging on either side in war in America, and they were told that if they acted in this respect against the law of their country and against the law of nations, they must not expect any protection from the British Government. But he very much feared that a great deal that had passed that night would tend much to diminish the effect of the proclamation. He only hoped that it would not do so, because he was quite sure that long before diplomacy could interfere in the matter, the offender would be hanged.
[251]
The press on the debate.
The answer that can be given to Lord Ellenborough is, that a blockade must be, on the one hand, a great deal more than a mere paper prohibition. A hen may be induced to believe that a broad chalk line forms a barrier which she cannot pass, but mankind have a right to require that before their natural liberty be taken from them, something more substantial shall be interposed between them and the port they desire to enter. On the other hand, it would be absurd to say that a blockade shall not be respected unless it be completely effective. Such a rule would be to invite a perpetual breaking of blockades, since the very fact of a successful evasion would prove conclusively, according to the definition, that it was no blockade at all, on the same principle that treason never prospers, because rebellion, when triumphant, ceases to be treason.Still less reasonable was the complaint of Lord Ellenborough, that the proclamation did not enable plain men to find out what articles are contraband of war. Until some means can be devised of defining, not only all that has been, but all that will be invented by the perverse ingenuity of man, acting upon a very rapidly increasing development of physical science, for the systematic destruction of his fellow-creatures, it will be utterly impossible to point out beforehand what is to be considered contraband of war. The most harmless materials, when taken alone — the ingredients of gunpowder, for instance — when associated together, may produce the most deleterious compounds; and things apparently quite unconnected with war — such as food and fuel, for instance — may, with reference to the purpose with which they were shipped, assume a highly contraband character. War is a great exploder of fiction; its conduct and its rules are based upon the very sternest of all stern and practical realities. It eludes the attempt to circumscribe it by metaphysical definitions, and bases itself instead upon the laws of nature and the possibilities open to us by the discoveries of physical science. A topic far more worthy of mature consideration than the questions proposed by Lord Ellenborough, was the doctrine with regard to “privateering” enunciated by Lord Derby. The argument of Lord Derby seems to be that the North, by declaring a blockade of the Southern ports, claims from neutral nations the respect due to its rights as a belligerent Power; and, therefore, that, whatever the North may choose to do with the citizens of the Southern States captured on board the privateers fitted out under letters of marque from Mr. Jefferson Davis, the North has no right to treat the belligerent rights of the South as a nullity with regard to the subjects of countries from whom it claims respect for its own belligerent rights. The result would be that the North, by declaring a blockade of the Southern ports, has bound itself not to execute as pirates the subjects of <*>ral States serving on board such privateers. The argument is one of great subtlety and refinement, and seemed to receive confirmation from the arguments of subsequent speakers. It is clear that English subjects serving on board an American “privateer” are not pirates, though, if they choose so to act, the English Government, by the Proclamation, seems to avow its intention of leaving them to a pirate's fate. It may possibly deserve consideration whether this decision can be strictly adhered to. At any rate, we cannot doubt that the authoritative declaration of the law by so many judges of eminent authority, will go very far to prevent the danger apprehended, and may possibly be the means of introducing into the very commencement of a dreadful civil war those principles of humanity and moderation, the operation of which might otherwise be suspended until enforced and demonstrated by the barbarous logic of reprisals.--London Times.
The uniform tenor of intelligence from the United States cannot be expected to please the secret sympathizers with the Secessionists, or the still more numerous class among us who, dwelling rather upon differences between the forms of administrative Government in England and America than upon their common possession of Anglican liberty, have disqualified themselves for fairly judging the acts of the Federal Administration. It is now seen how false and shallow were the estimates of the Washington Government, which, until lately, obtained currency here. Simply because people did not know what Mr. Lincoln was doing, they were quite sure they knew he was doing nothing. The favorite argument from ignorance has never been carried further. All who had paid any attention to American affairs knew well enough what the President must be about. The slight and flimsy work for doing which Jefferson Davis got unmeasured praise, was nothing to that which had to be done. At Montgomery they had simply to make a government. Mr. Lincoln had also to do that; but he also had to unmake one. He had to destroy the coils which Southern traitors had taken care to wind about the new President, to dispossess a whole army of disaffected officers before it was safe to venture a single step. The instant that was effected the whole scene changed. The North then displayed a military energy which has astonished the South, and which has already changed the tone of the Secessionists. Instead of the cheap boast of a march to Washington, the braggarts at Montgomery are whining about their rights, and thinking how best to defend themselves from the justice which is shortly to call them to account. The force at the disposal of the Federal Government is overwhelming. So obvious has this fact become, that a new difficulty is started, and those who were lately chiding Mr. Lincoln for not exerting himself, now insist that it is all in vain, and ask incredulously [252] what he is going to do. And here, again, as Governments do not usually publish the plans of their campaigns, the argument from ignorance appears to great advantage. For our parts, we prefer to notice from day to day the success which attends Mr. Lincoln's action. The progress of disintegration has been stopped with a strong hand, and in States which, like Maryland and Virginia, were falling under the tyranny of the lawless and violent, enlightened and peaceable citizens are recovering their due influence. From the Ohio to the Gulf of Mexico men talk more reasonably, and if the voice of patriotism gains a hearing there, it will be because Mr. Lincoln has so ordered it. If the destinies of the Union are to be submitted to the arbitrament of war, he has acted wisely. If a peaceful separation, with all the difficulties attendant upon such questions as tariffs, extradition treaties, division of territories, and the like, is to be attempted, we say again he has taken the only prudent course, for no settlement could be lasting if made under the menace of a Slave Power.
All the facts that come to hand only place in a stronger light the duty which lies upon neutral Powers, and above all upon England, of leaving the people of the United and Confederate States to settle this quarrel in their own way. The English Government has done its duty in issuing the Proclamation which lately appeared in our columns, and which was the subject of an important discussion on Thursday evening in the House of Lords. The manifold relations between this country and the American States, the probability that one of the parties now engaged in civil war will apply to British subjects for aid, and importance to the North of being able to close up the Southern ports, made it desirable that the law upon the various legal questions which may arise should be clearly defined. After perusing the speeches of the various eminent lawyers who delivered their opinions upon the points mooted by Lord Ellenborough, it must be confessed that the unanimity of opinion is not so striking as might be desired. It is necessary to bear in mind continually that ministers have determined to grant to both parties in America — the North and the South--belligerent rights. The meaning of this is, that England is prepared to treat the United States and the Confederate States as two Powers, not, indeed, independent, but at war with each other, and entitled to belligerent rights. England, therefore, occupies towards each of them the position of a neutral, and is bound to conduct herself with perfect impartiality to both parties. The fact, however, that to us these parties occupy such a position as entitles them to belligerent rights, does not alter the relations of the North and South to each other. President Lincoln may still regard himself as President of the thirty-three United States and may treat Jefferson Davis and his followers as traitors and rebels. In strict law it must be admitted that the South cannot claim to be at war with the North, for in the eyes of the Northern constitutionalists the South has no independent existence. As Lord Kingsdown said, whether President Lincoln chooses to treat the Southern seceders literally as rebels must be matter for his own consideration, but he could not help thinking that to act upon such a view would be to have recourse to a piece of barbarity which would raise an outcry throughout the whole civilized world. If, then, President Lincoln and his Cabinet adopt the opinion of Lord Kingsdown, there can be no doubt that any citizen of a Southern State--although a rebel — will be entitled, if taken by the North, to all the rights of an enemy.--London News.
