DR. TRAVERS TWISS ON THE LAWS OF WARE
By the publication of this volum3 Dr. Twiss completes his task, having surveyed the rights and duties of nations in time of peace in a volume published .801n1 eighteen months back. It is no dis- paragement to the character of this very valuable work to say that many readers will probably lay it down with a certain feeling of disappointment. For the first time since our attainment of maritime supremacy, Englishmen find themselves in the position of neutrals, and we are all warmly discussing questions of international law from what is to us an entirely new point of view. The works of former writers are eagerly consulted, but they, too, were Englishmen, and discussed the subject of neutral rights from the stand-point of belligerents, w Idle the foreign jurists, like M. Hautefeuille, seem commonly to have no other object than to let the world know what rules their private notions of equity would impose on mankind. The consequence is, that we are very apt to turn to a volume, emanating from so accomplished a civilian as Dr. Twiss, and appearing just at the present moment, under the idea that we shall find all the questions of inter- national law which circumstances have raised during the last two years settled therein by an authority which we caunot suspect of hostility to our maritime power. The feeling is a very natural one, but he who buys a book without first reading the
• The Law of Sations Considered as lackpencleal Political Conuntatitiss. By Travers Twiss, D.C.L., Regius Professor of Civil Law in the University of Oxford, and one of Her Majesty's Counsel. The Clarendon Press, Oxford, and Longman and Co., Lon- don. IMO.
preface must be content to hear his complaint dismissed with the old-fashioned sentence, 'Caveat emplor." Dr. Twiss plainly warns him that the plan of this work is to avoid "all speculative dis- cussions," and that it is intended less for" the general reader" than for" those who are engaged in the practical duties of diplo- macy and in other active departments of public life." What Dr. Twigs has done is to "select the most important topics of those branches of the law of nations which have reference to the rights and duties of belligerents" inter se and towards neutrals, and to ascertain by an historical analysis of the practice which has at different times prevailed what are the principles which lie at the base of the law. For instance, the limitations to the rights of belligerents on the high seas in favour of neutrals have varied very much at different times, and are in the author's view rather matter of fact than of principle. After the breaking up of the Roman Empire the police of the seas was maintained by private associations of merchants, t' whom sovereigns were quite unable to afford protection. The latter were even obliged to invoke the assistance of the associations, and to conform to their usages, which thus became by degrees the customary law of the sea. It was natural that the customs founded by merchants should be, on the whole, favourable to trade, and accordingly neutral goods on board an enemy's ship were always restored to the owners, and enemy's goods on board a neutral ship were not considered to infect the ship itself with a hostile character. It is remarkable that the author of the severer rule was Francis I., so that the practices of which the French writerif on international law complained so bitterly during the last war were the invention of their own princes. The Reglement of 1543, which ordered the French Admiralty to condemn neutral goods found on board an enemy's ship, and neutral ships laden with enemy's goods, was maintained till 1778, and was revived for about three years by the French Republic. The much discussed principle of "free ship, free goods," seems to have been the invention of De Witt, who, however, sacrificed the Dutch merchants to the Dutch shipowners ; for while by various treaties he stipulated for that rule, he conceded that Dutch goods should be confiscated when found in a belligerent vessel. The principle of free ship free goods, was further adopted by England, France, Spain, and Holland, inter se, in the treaty of Utrecht, and has recently been adopted at the Congress of Paris by all the Powers of the civilized world except the United States, the Confederate States, Spain, and Mexico. There are, therefore, no less than four distinct systems of law with reference to the exercise of belligerent rights on the high seas which have found favour with particular nations at various times. 1. The rule of the Consolato del Mare, which may be called the common law of the seas; by this, neutral property is exempt from capture unless contraband or engaged in breaking blockade. 2. The old French rule, by which neutral pro- perty is liable to capture when found in conjunction with enemy's property. 3. The rule which attributes to all goods the same cha- racter as that of the ship in which they are ; enemy's ship, enemy's goods; neutral ship, neutral goods. 4. The rule which exempts neutral property from capture everywhere, and even enemy's goods when in a neutral vessel. But having thus established the practice at different times on this subject, and pointed out the practical consequences of the new rule adopted by the Congress of Paris, Dr. Twiss makes no attempt to determine what ought to be the rule, even though he takes the pains to show the unsoundness of the principle on which certain jurists have attempted to found the principle that the flag covers the goods, viz., that every ship is a part of the territory of the nation whose flag she bears. This lie rejects, because, if so, a neutral vessel carrying contraband of war cannot be seized, for contraband goods are not seizable in neutral territory, while all nations admit that the carrying of contraband by vessels is cause of forfeiture. But having rejected it, he is content to leave the matter there ; rules of international law are in his view mere con- ventional rules resting on the agreement of nations.
It must not, however, be supposed that Dr. Twiss is careless is to right. He himself .suggests various ameliorations of the practice of belligerents in favour of neutrals—not, however, in the body of the work, but in his preface. He contends, for instance, that neutrals for a given time after the establishment of a blockade ought to he free from capture, unless they attempt to ran it after an actual warning to desist from the blockading squadron. Again, he would compel a belligerent to notify to neutrals what articles of equivocal use it intends to treat as con- traband. Thus he seems rather to abandon speculative discus- sions as useless than to condemn them as unsound ; and certainly the ordinary practice of jurists has had something to do with the
uncertainty which is popularly attributed to international law. People turn to Grotius, and Vattel, and Bynkershoek, and complain that they all differ; and so long as the attempt is to discover what is the law of nature, or the rule of right reason, or of humanity, the jurists will continue to differ. This, however, is not an argument for abandoning such investigations, in which, probably, all the various ameliorations of the laws of war that have from time to time been introduced have their origin. But it is of the utmost importance to distinguish accurately between what is by custom the law of nations and what any given writer thinks ought to be the law. Jurists generally have not seen the import- ance of this distinction, and hence the danger of trusting to their guidance. Dr. Twiss is more modest, and has in conse- quence produced a really useful book.
It is also right to say that Dr. Twiss is a writer of extreme im- partiality. He even intimates that he considers it possible that neutral vessels may be considered to partake of a hostile character if they carry enemy's despatches to a neutral port in a public letter-bag, under the seal of a neutral post-office. And, no doubt, there is no decision distinctly in point, if by enemy's despatches are understood despatches containing the instructions of the enemy to his generals or civil governors, or their instructions to their subordinates, or vice versa. Such despatches have been held to be a cause of confiscation if they are being carried directly to a hostile port, and, arguing by analogy, it would seem that the fact that they have a prior intermediate destination to a neutral port would make no difference. The point would probably turn on whether the captain knew the character of the despatches or not, which in the case put lie could scarcely do. It must be observed, however, that if the despatches are addressei to the enemy's ambassador at a neu- tral court, the case of the Caroline, decided by Lord Stowell, is a distinct authority that the carriage of them by a neutral is not cause of confiscation, though how far other countries may choose to follow that rule it is, of course, impossible to say. We may add, that unless the case of the Trent be considered authori- tative there is, so far as we know, no decision that it is unlawful to seize an enemy's ambassador on board a neutral vessel. Of course, this would not be admitted by those who contend that a ship is a part of the territory of the nation to which she belongs. But if, as seems the better opinion, this doctrine is rejected, there is something to he said for the American seizure of Mr. Mason. No doubt it is absurd that "the flag should cover goods" but not persons ; but this is not the law as between England and America, the latter Power being no party to the rules of the Congress of Paris. Oa all such doubtful points, however, Dr. Twiss says nothing. There really is at present no law upon them, and the discussion of them belongs to speculative works and not to law books. This book is, therefore, an elementary work on the subject of which it treats. So understood, the reader will find it an excellent text-book, methodically arranged, and written in a style which is really admirable, not merely for its clearness but its elegance.
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