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July 8, 1854] THE LEADER. 627
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Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.
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Pabliament Of The Week. The Government C...
—and -which already prevailed in Dublin . He expressed a fear that these halls , in connexion with the operation of the clauses abolishing the oath on matriculation and admission to the first degree , would introduce elements of discord fatal to discipline- The noble lord concluded by shadowing forth the nature of the amendments he intended to move in committee . Lord Caktking then replied , and the bill was read the second time without further discussion .
THE BIGHTS OF JSEDTKAI . S . An abortive debate , ending in a count out , took place , on Tuesday , on the rights of neutrals . The debate is chiefly interesting from the fact that Sir William Molesworth delivered . a remarkable and exhaustive speech on the subject . Mr . Jonir Phij > mmore mcnyed the following resolution , seconded by Mr . Mix-chew .: " Tljat it is the opinion of this House , that however , from the peculiar circumstances of this war j a relaxation of the principle that the goods of an enemy in the ship of a friend are lawful prize may be justifiable , to renounce or surrender a right so clearly incorporated with the law of nations , so firmly maintained by us in times of the greatest peril and distress , and so interwoven with our maritime renown , would be inconsistent with the security imd honour of the country . "
Mr . PhiHimore supported his proposition by an elaborate reference to history and the authorities , including Vattel and the " Consolato del Mitre . " The principle for which he contended was , that every belligerent power might capture the property of its enemies wherever it was met with on the high seas , and for that purpose should detain at * a bring : Into port neutral vessels laden with such property . Por that princljylu no contended , and' though lie did not object in the present case to -what had been dotie ,: he wished that that principle should not be entirely abandoned . There were two- principles distinctly laid down on the subject , namely , that the goods of an enemy on board the ship of a friend might be taken , and that the goods of a friend on board the ship of an . enemy ought to be restored , and those principles had run through , the public law of Europe from the earliest times .
Sir W . Moleswobth replied , by going over the whole question . Two questions had been raised by Mr . Phillimore , one a theoretical question pf international lawr , the other a practical question of political expediency . The theoretical question -was whether a belligerent state should have the right of confiscating the goods of an enemy in the ship of a neutral . The practical question was , supposing the right to be admitted , ^ whether it was most politic for this country , in the present war , to insist on or to waive it . With respect to the first question , Mr . Phillimore wished the House to affirm the position , as one so clearly incorporated with the law of nations that to renounce or surrender it would be inconsistent
¦ with the honour and security of the country . With regard to the practical question , he admitted that from the special circumstances of the present war the principle might be relaxed . Clearly , however , the House could not so much as entertain the motion unless the 1 theory which it upheld were based upon truth . Was this tho case ? Mr . PhilI / Imobb had endeavoured to prove his case by quoting learned Authorities—he had traced the origin pf the rule to the ages that followed the downfall of the Roman empire—and appealed in support to the well-known Consolato del Marc , which contained the first written statement on the subject . He fortified his position—Testing so far on a document of the eleventh centnry breference
y to Grotius . But what was the authority of Grotius ? Only this , that ho has described tho rights of war as they were deduced from tho custom , the sayings , the writings of antiquity , ao that , of necessity , n great number of these rights havti bccomo obsolete , in proportion to tho advance of civili-Bation . And it does not , after all , seeto clear jn favour of which position tho authority of this writer can bo quoted . Nor could more be said for the weight of arguments resting on Vattol—who merely mentions tho rule , without defending ifc , and 19 , moreover , very deficient in philosophical precision . On the othor hand , all the modern publicists of continental Europe have condemned tho rule of tho Consolato as a rolic of barbarism .
So much for tho books . But ifc must he admitted that tho practico among European statoshas been in conformity with tho position laid down by Mr . Phftlimore . But that does not warrant tlio conclusion that it Jb in accordance with what ouyht to bo tho law of nations . Tho public low of Europe m * iy bo traced to two distinct sources , —to tho law of nationa and to custom . How 1 do we lenow that tho lnw « based only on upago and custom do not require nmondmont ? Usage and custom arc frequently at variance with what is right and just , and , in this special instance , Y'V" ' llfta tliuer ( 1 ( 1 »» tliflforcnt nations and in uitteront sects and families of nations—it hue been yawed in the eamo nation at different porioda in it « lUHtory . *
« no W ° ? mu 8 t ha '"' Sued on tho rights of the ensc . Ino udvoofttos of tho extension of noutrnl TJfe'Uts contend that the toudoncy to ictmcct Xlww
rights has grown , with the growth of civilisation , but has hitherto chiefly influenced practice in war by land . For this there can be no reason , and besides the laws of warfare—now appealed to—were established when the rights of neutrals were little eared for or understood—and it is absurd to accept as the public Jaw of Europe what is in point of fact the municipal law of Borne . It is by adopting the principles which were adopted , with full right , by the Imparators of Rome that European sovereigns have
been led into grave errors . And the friends of the extension of neutral rights contend that tbe old system , thus ill-founded and absurd , should be abolished . They contend that & neutral ship is a floating portion of the territory of a neutral sovereign , and should be treated as such—that while a belligerent power has a full right to prevent a neutral -state from succouring the enemy , it ought not to extend its interference . They affirm that the language a neutral state is entitled in reason and justice to say to a belligerent is this : —
" ' As a neutral I have nothing to do with your quarrel ; you may injure your enemy as much as you like , provided that in so doing you do not injure me ; you may nit your antagonist as hard as you can , but you must not strike me in order to hit him ; and if he hurt you , you must not retaliate upon him by hurting , . All that you , as a belligerent , are entitled to demand of me as a nentral is , that I v ? ill not take any part against you ; that I will not directly sucooar and-aid your enemy ? that when you are fighting I will not famish him with munitions of war ; that wJaen you are blockading , his . ports , or besieging , his tqwfis , I will not interfere , nor supply him with , the meanp , of pr ^ Jongcd defenie ; but , provided that I abstain from doing ihes « things as 3 neutral ^ I an » entitled to carry on with' your enemy a ¦ trade as free and ^ unrestricted as he and I may think proper
to jiermit ; far ( say the friends of the extension of neutral riglits ) the sea is free- —( Jrqtius haa proved ik ^ -and Selden was unable to refute him ; therefore no portion of ' tbe ocean is the exclusive property of any state , except that portion ' it "which is temporarily occupied by the ship of a state ; over that portion the state whose ship occupies it has for the time sole and exclusive jurisdiction . A neutral ship is a floating portion of the territory of a neutral sovereign ; its inhabitants are his subjects 4 they are bound to obey his municipal law , and no , other law , If they , commit crimes on board the ship , they are tried and punished by his penal law ; and . the ownership of every article of property on board the ship is determined by his civil law . " Therefore . ( say the "friends of the extension of nentral rights , addressing a belligerent Sovereign } vour quarrel , with which the neutral
Sovereign has nothing to do , and to which , as a neutral , he ought to be perfectly indifferent , cannot ; destroy his rights on tho free ocean , cannot entitle you as" a belligerent lo interfere with his floating territory more than with his fixed territory . But it must be admitted that the subjects . 'of a neutral Sovereign , the inhabitants both pf . his floating territory and of bis fixed territory , ought not , to directly aid and succour your enemy , for if he we ' re to sanction such conduct on the part of his subjects he would cease to be a neutral , and would become your enemy ; therefore lie ought to prohibit ' tho ' ' inhabitants both of his fixed and of his floating territory from directly aiding and succouring your antagonist ; and he ought to authorise you as a belligerent , ana you ought to l > e authorised by tlie law of nations , to enforce that prohibition by visitiug his ships and confiscating
contraband of vyar , and . by seizing Ins vessels in tlie event of th , cu- attempting jto break through your blockade ; but , though it must be admitted that the subjects of a neutral . Sovereign ought to abstain from doing these thingsj tlie evideot aim arid intention of which are to' directly succour and aii your antagonist—ought to abstain from all acts which , if done by his commands , or by his ships of war , wou 3 d justify you . in treating him as an ally of your enemy ¦ ' —yet it dock not follow that the s objects of a neutral Sovereign are bound to abstain from doing those things , which , without directly succouring and aiding your antagonist , may tend to benefit and enrich hitn , ( ind t by enriching him , may tend to strengthen , . him , and , by strengthening him , may tend to render it morq difficult to overcome your enemy . For you must adm . it that tho established and tiniversiillv rccormised laws of li . uroneaii warfare
permit tho subject of a neutral J-JovomKn to do many things of this description ; that , according to the present public law of Europe , he ia entitled to trndo with your enoniy in evory description of goods oxcopt contraband of war : lie is entitled to enter uny one of your enemy ' s ports which 13 not strictly blockaded ; ho is entitled to load his tihips with gooda aud inorohandiso of tho produce and manufacture , of your enemy ; ho is entitled , to carry off \ thcso goods and merchandise , and to soil them in other ports . You cannot deny that tlio subject of a neutral Sovereign ja enfcitleU by fuo kw of nations to do irtl these things , but you , affirm that hoi nmst ao them subject to this strange and extraordinary condition , that during the period that lie is carrying t ^ o coods in question from ono yorfc to another they should legall y ccaso to be-long to your onomy . And ( uny tho friondB of the
extension ot noutrnl rights ) in order to nscortnin whoth « r this oxtrnox-Uinai-y cpixlition is fullillod , you clnim , as n , bolligoront , tl » o right of ( stopping neutral ships on tho highway of the fioo ocean , not only for tho purpose of ascertaining tboir nationality , anil wliollior thoy aro carrying contraband of vnr-to your ouomy , but for tho purpose of Hoarolung and minutely Inquiringund examining into tho legal awhoriHup of every dingle article of proporty on hoard a noutrul tthip ; and if you find anything on board tho al » ip which you fanoy lolongs to your enemy—any property tho purohaao of which from your onomy you suspect lms not boon completed « caoruing to tho atriot and technical rnlea of your law —you claim n » n bellhjoront tho right of dot , uii ) ing tho neutral uliip , ijnd of compelling it to change- itH routo nnd ( tutor ouo of your porto , ia order that your judg < ta may in-Huiio into aud duturintno tho ownership of tho proporty In question ; 11 ml if your judges deciilo that , according to lho _ toclmii'iil ruK ' u of Unit portion of your municipal law which you cull your law of ntUionn , tho purohimo of tho
property in question has not been completed , and that its legal ownership is still vested ha your enemy , you claim the right of confiscating that property . And £ say the friends of the extensiou of neutral rights ) yon claim the right of causing these powers to be exercised , not only by the commanders of your regular ships of war , over whom you have direct control , ' and who are gentlemen , and have the honour and interest of their country at heart , but you claim the right of delegating these powers—at all times odious and vexatious , and which may be used to the great detriment and injury , arid « ven destruction of the trade and commerce of neutral States—to the freebooters , buccaniers , and foreign cut-throats who man your privateers , over whom you have little or no control , scourges of the ocean , whose object is plunder , and who can only be distinguished from , pirates by
the mark of your license to pillage . Now { say the friends of the extension of neutral rights ) your status as a belligerent gives yon no more right to enter a neutral ship to search for your enemy ' s property than to eater a neutral port to search for your enemy ' s ships . As long as you and the neutral Sovereign are at peace you have no right to meddle with any property on board his ship ; except contraband of war . For he is sole and independent Sovereign 011 board his ship , and , in virtue of tis sovereignty , all property" on hoard his shi p belongs in fact to him , for he can dispose of it , and does dispose of it , according to , his will aad pleasure , 33 declared ip the rules of bis municipal law . Therefore , as long as you and lie are at peace , you have no right to ask
any questions about any property on board his ship- —either how he became" possessed of ifc , or upon what conditions he acquired it , whether he paid for it in' hard cash , or obtained it-on credit ; whether he holds it for his ownnse or iu trust for anybody else . To iosjst up ^> n asking these < uj £ stions , to insist upon defeermiain ^ them in your-courtsoflaWj to exercise anj power over- , jv neutral ship Wliich tlie" neutral Sovereign neither ' cqn . cedes \ o j \> u nor admits tha £ you are entitled to exercise accoj . ;^ fi . Bg . to yfhat he considers ought to be the rules of international law , are acts of nolenceto which neutrals have subinitt ; eioniy when neutrals have Been weak and belligerents strong , and which neutrals have resisted , and will again resist , whenever strong enough to defend their rig hts . ^ ¦ ¦¦ . ¦ * . ¦¦ . ¦ " .
And many European states have agreed in the principle . For a century and a half before the French revolution the invariable rule between the maritime powers of Western Europe was " free ships , free goods ; " it is contained in almost every one of the treaties of peace arid commerce which England concluded -with France , Spain , the United Provinces , or Portugal during that time . Still the practice has been nt variance -with the law . In peace , men ' s minds are calm , and open to the influence of truth and justice . In war , their passions are aroused , and the best established rules are oftentimes set at defiance . Sir William Molesworth mentioned several instances in whicTi the law— 'adopted in all the treaties ^—was flagrantly violated ; and it does not seem that , in periods of -war , this country has shown
any greater respect than its" neighbours for the rights of-neutrals . Still it may be asserted with perfect truth , that though itr has been the custom and usage of nations to act upon the rule of capturing enemies ' goods on board neutral ships , yet that custom and usage have been , and still are helcl by the great majority of civilised nations to he at variance with correct , notions , of what is . ' righ . t and just . Now since the conduct of . sovereign ,. states tawgrcls each other sliould be regiitafed by opinions generally current , and not by any positive command of a superior authority , it follows that Mr . Phillimore ' s motion is at least -not . indisputably true , and , therefore , not of a kinfj vhich the House should pledge itself to uphold for ever . Ab to the practical question , it happens that the written law of France and England -varies on thia subject . The French are bound by law and treaties
to respect enemies' goods on board neutral ships , but are entitled to confiscate the goods of neutrals on board enemies' ^ hips . The English law is exactly the converse of this . And ^ slnco tlie cordial cooperatipn i ff the two countries is essential to success , it was necessary to atyain complete harmony of action , by agreeing upon a common law for both countries . The compromise ia £ hts : France waived her right of confiscating neutjral property on board Russian ships ; England waived her right of confiscating RusBiaa property . qn" board neutral ships . JOastly , even if Mr . PhilHmore ' s motion were true , the Ilouao should not agree to it unless it were shown that some great practical good would result . Whereas fco follow out the course recommended by Mr . Phillimore would ^ o to Kleclaro to otl ^< jir states that wo did what was absolutely wrong , for some special reasons , but that , in future , wo should revoke our act ,
. "In dflttling with other States wa ought to inako up our minds to what is right nndjuet to do , and do it ; but we should carofully abstain from threats and boasts of what wo will do . To do ono thing ono day , nnd to vapour and to futnc , nnd to fret , and to awonr tlmt wo will do quite another thing another day , would bo conduct ; unworthy of a rniRht ^ nation . It would beat befit ono of l < alsUira ragged row-, mont . And tho tomw of the motion irresistibly rewinds ono of tho daolnratlon of Antiont I ' wto , wliUo eating Uio leak under tho compulsion of JjIuqIIoh ' s cudgel , that he wouUl yot have his rovoutfo . Tho ruloi , ^ ' fr oo elmw . (» o « fioodo , ' ia tho look , which tlio . hon . and lojirnod gentleman , ifl oatini , ' - but lio vovth ho will lmvo lua rOYongo by futuro confiacatlon . I « n » convinced , thoroforo , thnt tlio Houao ought not to coiitfcut to tho losolution of tho learned gontloiflftn , for I linvo bhown that it contains a proposition condemned by tho majority of civilised nations— -ono of doubtful truth .
July 8, 1854] The Leader. 627
July 8 , 1854 ] THE LEADER . 627
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Citation
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Leader (1850-1860), July 8, 1854, page 3, in the Nineteenth-Century Serials Edition (2008; 2018) ncse2.kdl.kcl.ac.uk/periodicals/l/issues/cld_08071854/page/3/
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