International law | The Solicitors' Journal - July 26, 1862
In 1862, against the backdrop of the American Civil War, SJ argued for a change to international law
The contest in America has brought things to such a pass in this country, and indeed throughout Europe, that a Congress to consider the present working of international law would, in our opinion, be most desirable.
Are we not entitled to ask the reason why foreign nations should permit themselves to be injured by a contest with which they have no manner of concern? When Mr. Gladstone talks of the "magnificent spectacle of a population starving in silence," he alludes to the victims of a principle which, we seriously believe, has never yet been submitted to the test of sound reason.
If a Congress were assembled to discuss the merits of that principle we entertain a pretty strong conviction that many of the opinions which are now held infallible would be shaken. No rule is more rational or better fixed in the law of nations than that neutrals are at full liberty to trade with either or both the belligerents. If so, why are we now interdicted from trading with America? The answer is, we are not interdicted from trading with America, but we must do so subject to the risk of capture and confiscation under the law of nations-in other words, we must give effect to a barbarous privilege which that law has strangely and inexplicably conceded to belligerents, under pretence of enforcing what is called the duty of neutrality.
Now, without discussing the question whether the preservation of neutrality is in all cases a duty, this is to be observed-namely, that in the present instance the nations of Europe have by their deference to the law of nations in effect seriously injured one of the contending parties, who, as being the weaker, has the better claim to our sympathy.
There is little doubt that if the Southerners had not been deprived of military and other supplies from foreign countries their resistance would have been more effective, and this war, ruinous to both, would have been the sooner brought to a close. If these considerations have any weight it would seem that the course now pursued by England and France with reference to America, though conformable to international law, is really injurious to the belligerents themselves, and is in the last degree mischievous to the world at large.
It is remarkable that the most authoritative jurist now living, M. Hautefeuille, entertains but little respect for some of the best-established maxims of international jurisprudence. The Congress of Paris has displaced not a few of them; but the most noxious still remain, and more especially that which affirms that the commercial intercourse of individuals is a breach of the neutrality of states.
The existing state of things in America makes it imperative upon jurists to re-consider some of the cardinal rules in the international code of war and neutrality. Indeed, most reflective persons have for a long time entertained grave doubts whether the whole scheme of the law of blockade is not based upon principles that are both unjust and impolitic.
Any two nations have of course a right to go to war amongst themselves if they please, but it is by no means so clear that whichever of them happens to be stronger in its naval armaments should be able to prevent the whole world from holding communication with the other.
The utility of such a proceeding-so far as all other nations are concerned-is often very questionable. Their sole interest in any such contest is that it should be brought to an end as soon as possible. But the probability is that a blockade tends not only to perpetuate but even to propagate war much more frequently than to stop or prevent it. This has certainly been the case in America.
There can now be no doubt whatever that the Confederate States would have been from the beginning more than a match for their enemies had it not been for the blockade. But even if it had been otherwise why should all other nations submit to be disbarred from trading or holding intercourse with the Southern States? And why should English merchants and shipowners be compelled to submit to the jurisdiction of American prize courts, where there is no security whatever for the fair administration of prize law, such as it is, in cases where Americans are plaintiffs and Englishmen defendants?
It appears by an official report of the United States District Attorney that "the courts of New York have given decrees of condemnation in almost all the cases brought before them." Who could expect it to be otherwise in the present state of public feeling in America, where it should be remembered that the judges owe their election to popular suffrage, and their decisions, moreover, are influenced by the consideration that one moiety of the prize property belongs to the public service.