Part 10

Too much have I spoken for your patience, if not enough for the cause. But there is yet another topic, which I have reserved to the last, because logically it belongs there, or at least can be best considered in the gathered light of the previous discussion. Its immediate practical interest is great. I refer to the _Concession of Belligerent Rights_, being the first stage to independence. Great Britain led the way in acknowledging the embryo government as belligerent on sea as well as land, and by proclamation of the Queen declared neutrality between the two parties,--thus lifting an embryo, which was nothing else than animate Slavery, to equality _on sea_ as well as land with its ancient ally, the National Government. Here was a blunder, if not a crime, not merely in the alacrity with which it was done, but in doing it at all. It was followed immediately by France, and then by Spain, Holland, and Brazil. The concession of belligerent rights on land was a name and nothing more, therefore I say nothing about it. But the concession of _belligerent rights on the ocean_ is of widely different character, and the two reasons against the recognition of independence are equally applicable to this concession: _first_, the embryo government has no _maritime_ or _naval_ belligerent rights _de facto_, and, _secondly_, an embryo of Rebel Slavery cannot have the character _de facto_ which would justify the concession of _maritime_ or _naval_ belligerence; so that, were the concession vindicated on the first ground, it must fail on the second.

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The concession of _ocean_ belligerence is a letter of license from consenting powers to every Slavemonger cruiser, or rather it is the countersign of these powers to the commission of every such cruiser. Without such countersign the cruiser would be an outlaw, with no right to enter a foreign port. The declaration of belligerence imparts legal competence, and the right to testify by flag and arms. Without such competence there would be no flag and no right to bear arms on the ocean. Burke sententiously describes it as an “intermediate treaty _which puts rebels in possession of the Law of Nations with regard to war_.”[142] And this is plainly true.

The magnitude of this concession may be seen in three aspects: _first_, in the immunities it confers, putting an embryo of Rebel Slavery on _equality_ with established governments, making its cruisers lawful instead of piratical, and opening to them boundless facilities at sea and in port, so that they may obtain supplies and hospitality; _secondly_, in the degradation it fastens upon the National Government, which is condemned to see its ships treated on _equality_ with the ships of Rebel Slavery, and also the just rule of “neutrality” between belligerent powers invoked to fetter its activity against a giant felony; and, _thirdly_, in the disturbance to commerce it sanctions, by letting loose lawless sea-rovers armed with belligerent rights, including the right of search, whose natural recklessness is left unbridled and without remedy even from diplomatic intercourse. The ocean is a common highway; but it is for the interest of all who traverse it that the highway should not be disturbed by predatory hostilities. Such a concession should be made with the greatest caution, and then only under the necessity of the case, on the overwhelming authority of _the fact_: for, from beginning to end, it is simply a question of fact, absolutely dependent on those conditions and prerequisites without which ocean belligerence cannot exist.

As a general rule, belligerent rights are conceded only where a rebel government or contending party in a civil war has acquired such form and body, that, for the time being, within certain limits, it is sovereign _de facto_, so far at least as to command troops and _to administer justice_. On this last point I dwell especially. It is the capacity to administer justice which is the criterion, whether on land or ocean. The concession of belligerence is the recognition of such limited sovereignty, which bears the same relation to acknowledged independence as gristle bears to bone. It is obvious that such sovereignty may exist _de facto_ on land without existing _de facto_ on ocean. It may prevail in armies, and yet fail in navies. In short, _the fact_ may be one way on land and the other way _on ocean_. Nor can it be inferred on ocean simply from existence on land. Our Supreme Court has declared that there may be “a limited, partial war,” “a restrained or limited hostility,” “an imperfect war, or a war as to certain objects and to a certain extent.” Thus, on one occasion, hostilities were authorized “on the high seas by certain persons in certain cases,” but without authority “to commit hostilities on land.”[143] But by the same rule there may be war on land and not on sea, and this may follow from the necessity of the case. If Rebel Slavery does not come within the conditions of ocean war, then, whatever its belligerence on land, it cannot expect it on the ocean. Since every such concession is adverse to the original government, and is made only under the necessity of the case, it must be limited carefully to _the actual fact_. Indeed, Mr. Canning, who has shed so much light on these topics, openly took the ground that “belligerency is not so much a principle as _a fact_.”[144] And the question then arises, whether Rebel Slavery has acquired such _de facto_ sovereignty on the ocean as entitles it to _ocean_ belligerent rights.

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 _in_justice and _in_humanity. 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.

Without considering more critically what should be the fate of these ocean incendiaries, or what the responsibilities of England, out of whom they came, I content myself with the conclusion that they are not entitled to _ocean_ belligerence. And here let it be understood that no question is possible with regard to an established power with access to the ocean; for belligerent rights are fixed by International Law, without foreign recognition; nor can the rights of such a power be a precedent for any concession to a rebel community without ports and Prize Courts.

_Pirate_ is a hard word; but Jefferson did not shrink from applying it to “private armed vessels,” infesting our coasts, preying upon our commerce, and making captures at the very entrance of our harbors, as well as on the high seas. “They have carried them off,” he says, “under pretence of legal adjudication; but, not daring to approach a court of justice, they have plundered and sunk them by the way, or in obscure places, where no evidence could arise against them, maltreated the crews, and abandoned them in boats in the open sea or on desert shores without food or covering.” These things, kindred to what is done by our Rebel cruisers, he calls “enormities,” and he announces that he has equipped a force “to bring the offenders in for trial as _pirates_.”[155]

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Even if Rebel Slavery, coagulated in embryo government, has arrived at that _semi_-sovereignty _de facto_ on the ocean which justifies belligerent rights, yet the Christian powers should indignantly decline to make the concession, because by doing so they make themselves accomplices in shameful crime. Here I avoid details. It is sufficient to say that every argument of fact and reason, every whisper of conscience and humanity, every indignant outburst of an honest man against recognition of Slavery as an independent power, is equally strong against any concession of ocean belligerence. Such concession is half-way house to recognition, and can be made only where a nation is ready, if the fact of independence be sufficiently established, to acknowledge it, on the principle of Vattel, that “whosoever has a right to the end has a right to the means.”[156] It is equally clear, that, where a nation, on grounds of conscience, must refuse recognition of independence, it cannot concede belligerence; for, _where the end is forbidden, the means must be forbidden also_. The illogical absurdity of such concession by Great Britain, so persistent always against Slavery, and now for more than a generation the declared protectress of the African race, becomes doubly apparent, when it is considered that every Rebel ship built in England and invested with ocean belligerence carries with it the Law of Slavery, so that, by British concession, the ship becomes an _extension_ of _Slave_ territory and a floating _Slave_ castle.

And yet it is said that this impostor is entitled to ocean rights, and the British Queen is made to proclaim them. Sad day for England, when another wicked compromise was struck with Slavery, kindred to that old treaty which mantles the cheeks of honest Englishmen, when the slave-trade was protected and its profits secured to British subjects! I know not the profits secured by the destruction of American commerce, but I do know that the Treaty of Utrecht, crimson with the blood of slaves, is not so crimson as that reckless proclamation which gave to Slavery a frantic life, and helped for a time, nay, still helps, this demon in the rage with which it battles against Human Rights. Such a ship, with the law of Slavery on its deck and the flag of Slavery at its mast-head, sailing for Slavery, fighting for Slavery, burning for Slavery, and knowing no other sovereignty than the pretended government of Rebel Slavery, can be nothing less in spirit and character than a slave pirate and the enemy of the human race. Like produces like, and the parent power, which is Slavery, must stamp itself upon the ship, making it a floating offence to Heaven, with no limit to its audacity,--wild, outrageous, impious, a monster of the deep, to be hunted down by all who have not forgotten their duty alike to God and man.

Meanwhile there is one simple act which the justice of England cannot continue to refuse. That fatal concession, made in a moment of eclipse, when reason and humanity were obscured, must be annulled. The _blunder-crime_ must be renounced, so that Slave pirates may no longer sail the sea, robbing, destroying, burning, with British license. Then will they promptly disappear forever, and with them the occasion of strife between two great powers, who ought to be, if not as mother and child, at least as brothers among the nations. And may God in His mercy help this consummation!

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Here I leave this part of the subject, founding my objections on two grounds.

(1.) The embryo of Rebel Slavery has not that degree of sovereignty _on the ocean_ which is essential to belligerence there.

(2.) Even if it possessed the requisite sovereignty, no Christian power can make such concession to it without shameful complicity with Slavery.