# Handbook of Maritime Rights/Chapter 9

Between 1815 and 1854 the only historical fact connected with maritime rights was Mr. Canning's refusal to ratify a treaty which Sir Charles Stuart had negotiated with Brazil, on the ground that a clause in it had stipulated that the neutral flag should cover the merchandize, which Mr. Canning, agreeing with all past English statesmen, considered prejudicial to British interests.
In 1854, when England and France declared war against Russia, it became necessary to issue instructions to the French ​and English Admirals commanding joint squadrons in the Baltic and Black Seas, and negotiations between the two governments were opened with a view, if possible, that those instructions should be identical. M. Drouhyn de Luys, who was at that time Foreign Minister of France, gave, some years afterwards, in a paper read at the French Institute, an account of these negotiations. It seems that up to the last moment the English Government held out for the adoption of the British view of maritime rights, and would not yield to the utmost pressure of the French Government; and as late as the 25th March, Lord Clarendon made a declaration to a deputation of merchants engaged in the Russian trade, to the effect that England intended to adhere to the ancient rules of maritime law. But, at the last moment, three days after this, i.e, on the 28th March, a Cabinet Council was held, and it was decided to adopt the French view of the matter, and accordingly ​an Order in Council appeared the next morning in which the following words occurred: "In order 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;" and a similar declaration was issued by the French Emperor.
Granting that it was desirable that identical instructions should be issued to the English and French Admirals, it is by no means so clear that the English Government, representing an essentially maritime Power, should have yielded in a maritime matter to its military ally; and it could have been shown that, however true it was that France had joined in the armed Neutralities, and that the first Napoleon had always considered the greatest blow that could be struck at England would be to deprive her of her maritime rights, yet that the French law on the subject, if one went ​back to any period anterior to the great revolutionary period, was by no means different from the English law in the sense M. Drouhyn de Luys supposes; and that, if it differed from it at all, it differed in the sense of being more stringent; for, up to 1744, as we have seen, the French not only confiscated the enemy's goods but the neutral ship also which carried them, and they likewise confiscated the neutral goods found on board an enemy's ship; and it was plain that no law could be gathered from the French practice during the revolutionary period, nor from the Berlin and Milan Decrees, as these ordinances were notoriously directed solely against the maritime power of England, and were the result of caprice and violence, and not deductions from any principle at all. But as the maritime traditions of modern France were chiefly if not exclusively framed in connection with ideas of wars against England, it became a tradition with them that it was ​for the interest of France to champion neutral pretensions and to deny the principle that enemies' goods were seizable in neutral bottoms. The French Government maintained therefore that the French law was that enemies' goods were safe in neutral bottoms, but that friends' goods were seizable in enemies' vessels; and they offered to give up the latter principle, if the English Government would yield the former. I must here remark that this was not a compromise at all, but a mutual surrender for the benefit of the common enemy. However, it appears that the English Government yielded to pressure, and accepted the French proposal for the duration of the war, it being well understood that they only waived their rights and did not abandon them.
The experience of the Crimean War was not favourable to the maritime policy which had thus been adopted. It was found that in spite of a pretty strict blockade of the ​Russian ports in the Baltic, the Russians found little difficulty in bringing their produce, tallow, hemp, and flax, to Memel and Königsberg, Prussian ports near the Russian frontier (by means of the rivers Vistula and Niemen), and there embarking it on board Swedish and Prussian vessels, where, under the Order in Council, it was perfectly safe from capture. In this way the Russian producer was scarcely inconvenienced at all; he sold £10,000,000 a year to England instead of £11,000,000, and he was recouped by the additional price which the English consumer paid him for his slightly enhanced cost of transport; and the Russian rouble (the index of the rate of exchange between the two countries), remained during the whole period of the war at par, 38d. On Lord Clarendon's declaration to the merchants, on March 25th, it fell to 32d., but, on the Order in Council appearing, three days later, it immediately rose again to par. ​The exports from the Prussian ports quadrupled and quintupled the amount at which they stood previously to the war, and this gainful trade to the Prussian merchants put all idea of a political and military alliance with the Western Powers out of the heads of the Prussian people. The business of neutrality was far too lucrative. These facts made a considerable impression at the time on the country, and Lord Albemarle in one house and Mr. Collier (now Sir Robert Collier) in the other moved resolutions recommending various measures for stopping this illicit neutral trade, by means of differential duties on Russian produce, certificates of origin, and retracting the policy of the Order in Council of March 28th, 1854. Nothing however in this direction was done, and the war was brought to an end, after two years' duration, not certainly by any pressure exercised on Russian commerce, but solely by the force of the allied arms at Sevastopol.
​At the Conference of Paris in March, 1856, Lord Clarendon finally, at Count Walewski's invitation, surrendered the rights which had only been waived at the commencement of the war.
I will not stop here to inquire into the authority on which Lord Clarendon acted. The mystery which surrounds this point has never yet been cleared up. Certain it is that he said himself in the House of Lords, on Lord Colchester's motion on the subject, that he and his brother plenipotentiaries "had not confined themselves to the strict limits of their attributions."
But I will say a few words on the legality of his act. True it undoubtedly is that the Crown can make treaties with Foreign Powers without the previous consent of Parliament. It is one of its undoubted prerogatives. But there is a constitutional limit to this power, and that is that it may not make a treaty in violation of a municipal law of the country. In exemplification of this I may ​cite a case which arose in connection with the treaty of commerce with Austria in 1883. An Austrian vessel from some port on the Danube arrived in the Thames with a freight sanctioned by that treaty, and it was immediately seized by the Custom House officers for violation of the Navigation Laws; and the particular clause of these laws which had been infringed had to be repealed before the treaty was allowed to operate. Now, it has been frequently decided that the law of nations is part of the common law of England, and maritime law a part of the law of nations, therefore maritime law is a part of the law of England, and therefore cannot be altered without the consent of Parliament. Treaties which involve supply or taxes, or an alteration of the municipal law of the land require the consent of Parliament. These are preliminaries which are necessary to ​make even a formal treaty binding; how much more an informal declaration!
Now if we compare all the safeguards which our Constitution provides against hasty and improvident changes in our smallest municipal law, with the hastiness and improvidence which marked this fundamental change in a vital matter governing our external relations, we shall see the more reason for a careful review of the whole subject. For this declaration affected to reverse the law and practice of the land without the consent of Parliament and to turn its back on the traditions of the country without the country ever having been consulted in the matter. Never was an act of such stupendous import committed with such secrecy and precipitancy.
The reasons given for it were as trumpery as the step itself was grave. In the protocols two reasons were assigned; I. That uncertainty on the law of nations existed; II. That it was desirable that uniformity ​should be established. As to I., it was untrue; no uncertainty at all, as I hope I have clearly shown, existed as to the law of nations on the subject, although many nations, in their practice, went beyond, and so violated—deliberately—the law of nations. And as for II., however desirable it might be to establish uniformity, uniformity has not been established, as Spain and the United States both decline to sign the declaration and give up the right of using privateers.
In the debates in Parliament, other reasons were assigned, viz., that we could not maintain these maritime rights against the "intense anxiety of the neutral nations "that we should not," and especially against the attitude of the United States in the matter. The purely military nations may, I think, be dismissed from consideration; as they are powerless on the sea, this argument, founded as it is on an implied menace of power, cannot apply to them. With ​respect to the United States, they are really out of court in imposing obligations on us which they have refused to accept themselves, and, whatever complaints we may have had to urge in our dealings with the United States Government, it has never shown a tendency to disregard well-established legal principles. On the contrary, in their conduct in 1798, in spite of their well-known sympathies with France, they declined to refuse to England rights which were secured to her by the law of nations, or to allow to France rights which she had deliberately surrendered by treaty. "The desire of establishing universally the principle that neutral bottoms make neutral goods is perhaps felt by no nation on earth more strongly than by the United States. Perhaps no nation on earth is more deeply interested in its establishment. But the wish to establish a principle is essentially different from a determination that it is already established. ​"The interests of the United States could not fail to produce the wish; their duty forbids them to indulge it when decided on mere right." Such were the memorable words of Jefferson in 1798. The war of 1812 had nothing whatever to do, as I have shown, with this matter; and it is contrary to the whole tenour of the conduct of the United States Government to suppose that they would go to war with this country for the possible establishment of a maxim contrary to the recognized law of nations.
But it is a new maxim of English policy for English statesmen to give up essential principles of British interest, founded on the recognized law of nations, in obedience to a nervous dread of offending neutral nations. The history of a people with whom such motives are allowed to operate is already ended.
I ought to state, before concluding this chapter, that the reason assigned by the ​United States for declining to adhere to the Declaration of Paris is not any objection to the 2nd, 3rd, or 4th Rules, but to the 1st Rule, viz., that which abolishes privateering; and England's adhesion to the other points was conditional on this first point being accepted; it being decided at the Conference that the rules must be accepted "en bloc" or not at all. The United States offered to agree to them all, if an addition were made to them, to the effect that all private property (ships and cargoes) at sea should enjoy the same immunity in time of war as in peace.