LECTURE V.NAVAL OR MARITIME BELLIGERENCY.To sum up what I have been saying. I have been discussing certain legal fictions which are signified through legal metaphors, and especially one of them by which places and things not actually within the territorial jurisdiction of a state are supposed to be within that state for the purpose of collecting into a group the rules of law which apply to them. This fiction of ex-territoriality, is applied by general consent to the residences and persons of ambassadors and diplomatic agents in foreign countries, and on the whole the law on these subjects is expressed with sufficient accuracy by the fiction before us. By most nations the fiction is also applied to the portions of sea adjacent to the coast and deemed to be what is called the territorial waters of a particular state; that is to say, water which, so far as water can be ">

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Henry Maine's International Law(3)
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Lecture V : Naval or Maritime Belligerency

LECTURE V.
NAVAL OR MARITIME BELLIGERENCY.
To sum up what I have been saying. I have been discussing certain legal fictions which are signified through legal metaphors, and especially one of them by which places and things not actually within the territorial jurisdiction of a state are supposed to be within that state for the purpose of collecting into a group the rules of law which apply to them. This fiction of ex-territoriality, is applied by general consent to the residences and persons of ambassadors and diplomatic agents in foreign countries, and on the whole the law on these subjects is expressed with sufficient accuracy by the fiction before us. By most nations the fiction is also applied to the portions of sea adjacent to the coast and deemed to be what is called the territorial waters of a particular state; that is to say, water which, so far as water can be assimilated to land, is regarded as part of the state's territory. Finally, by some communities a merchant ship on the high sea is alleged to be ex-territorial -- to be in the same position as the territory of the country to which she belongs. In this last way the fiction before us has become mixed with a very important branch of law, the law of Naval Belligerency, and I use it as a convenient point of transit to that subject which I might take up at several places in these lectures, but which I wish to include in this portion of them for several cogent reasons. It is a province of law which rose into extreme importance at the end of the last century and the beginning of the present; it has long been, and still is, the field of many bitter disputes; it is a part of International Law in which a great reform has recently been attempted; and though the attempt partially miscarried, the cause of failure deserves our attention on a variety of grounds; it sheds light on certain weaknesses of the international system, and raises a very serious question as to the true interests of England in a reform of that system which all but obtained the assent of the civilised world.

I proceed, therefore, to deal with naval or maritime belligerency in its effects on belligerent Powers and on neutrals. The elements of the subject are simple. When two states go to war, the ships, public and private, of one are, relatively to the other, so many articles of movable property Boating on the sea. The capture of one of them by a ship of the other belligerent is prima facie regulated by the same principle as the seizure on land of a valuable movable by a soldier or body of soldiers. The law on the subject descends to us directly from the Roman Law. The property of an enemy is one of those things which the Roman Law in one of its oldest portions considers to be res nulliusno man's property. It may be taken just as a wild bird or wild animal is taken, by seizing it with the intention to keep it; but it is expressly laid down that a wild animal if it escapes ceases to be the property of the captor; and the question is, when is the captured property so reduced to possession as to make it altogether the property of the captor?

There was much dispute on this point among the interpreters of Roman Law. Some, including Grotius, maintained that the proper test was time, and the thing had to be possessed by the captor for four-and-twenty hours. A trace of this rule may be seen in the alleged power of the maritime captor to destroy the vessel which he has taken when he has no means of bringing it into a port. There is, however, another rule of Roman origin which has gradually supplanted the first mentioned. The captor must take the captured property infra presidia, within the fortified lines of a Roman camp. This applied to maritime warfare means nowadays at sea a port of the captor's country, as distinguished from an open roadstead, or the port of an ally of the captor or the port of a neutral Power. As it is sometimes put, the ship must be taken into military possession; that is, into a possession from which it cannot be rescued otherwise than by force. But in order that the captor may have the full benefit of his capture, yet another condition must be satisfied. The captured ship and its cargo, or cargo belonging to the enemy but found in a neutral ship, must be taken before a prize court and condemned as lawful prize. Till this condemnation has taken place the purchaser of the captured property could not be sure that he had a complete title to it, and could not obtain full value for it if he sold it.

Prize courts are sometimes called international courts, and no doubt modern International Law does, to some extent, recognize them; but in principle a prize court is a court established by positive municipal law, and it is entrusted by the sovereign of the state in which it is established with the duty of deciding whether ship or cargo is prize or no prize. In the abstract its object is to satisfy the conscience of the sovereign that the captures made by his subjects are valid captures. He is always, in theory, supposed to be responsible for them. But the great practical function of a prize court is to decide between the belligerent sovereign's subjects and subjects of neutral states. Neutral goods may form part of the cargo found in the enemy's ship which has been legally captured; or, again, cargo belonging to the other belligerent may have been found on the high sea in a neutral ship; or, again, the vessel brought into port may have been unlawfully captured through having been in the territorial waters of a neutral state, or by an attack organised in such territorial waters. In both of these cases capture is forbidden. If the belligerent sovereign permitted them, he would be guilty of an injury to an unoffending neutral.

The capture of ship or cargo belonging to one belligerent by the armed ships of the other is part of the fortune of war; nor can the captor much complain of having to bring his prize into a port for condemnation. So far as the captured vessel is concerned, this hardship is somewhat mitigated by the practice of what is called 'ransoming.' The commander willing to promise a definite sum for ship or cargo prepares a document which is called a 'Ransom Bill.' It is drawn in duplicate. The capturing officer takes one copy, and the commander of the captured ship another; and this ransom bill operates as a safe-conduct to the captured vessel on her voyage to a separate port. So far as relates to cruisers of the other belligerent, she enjoys immunity from their power of capturing her unless she has varied her course so as to raise suspicion of an intention to escape.

The real hardships of capture at sea, to which a large part of the world is not, even now, reconciled, are those affecting neutrals. If an enemy's ship at sea contains neutral cargo, the neutral must submit to have his goods taken into port for adjudication, and must of course forego opportunities of obtaining a favourable market, though his goods are not liable to capture. If a neutral ship contains admittedly enemy's cargo, the captain must submit to have his goods transhipped. These rules are of much antiquity. They are found in one of those treatises which are authorities on International Law, but which are older than its recognised beginning. In the ' Consolato del Mare,' which is supposed to contain the maritime usages of the seas which formed part of the Mediterranean basin, there are various laws with reference to the capture of neutral ships and neutral cargo, and enemy's cargo in neutral bottoms. These seas were, in the days in which these usages grew up, full of small commercial ports, all manufacturing and exporting, and not situated at great distances from one another. The origin of the rule which we are discussing exactly fits in with the relations of a certain number of small sovereignties of this kind; and that this is really the origin of the rule before us is indicated by provisions relating to the interruption of voyage, as for example by rules compelling the neutral ship to change her course for the port of the captor, and providing that she shall have compensation for her loss of time. The condition of these seas which I have sketched -- a number of small towns engaged in actual commerce, but not separated from one another by any great length of sea -- goes far to explain this ancient maritime law; but as one maritime Power and another grew in strength and came to value the advantages of neutrality, the discontent with these old rules began, and a desire arose for a more general and simpler system. One, in fact, which grew up was looked upon with much favour. It is often denoted by a sort of jingle which does not convey a real antithesis: 'Enemy ships, enemy goods; free ships, free goods.' All the cargo found in a hostile vessel may be made prize; if the vessel itself belong to a neutral, all the goads shall be treated as neutral property and shall not be liable to capture. France was on one side with a severe rule confiscating the neutral ship when any hostile cargo was carried in it, while the Dutch were for a system more lenient to neutrals, and finally France herself became patroness of this rule.

Many treaties have been negotiated between civilised states which embodied either both these rules or one of them; but still the rule which enables the belligerent to capture hostile cargo wherever he finds it, was on the whole that which lay at the base of International Law. The first serious attempt to effect a general reform of this principle was undertaken at the close of the Crimean war; and in 1854 the Powers which had taken part in, or had been most directly interested in, that war, issued what was called the Declaration of Paris. After reciting that maritime law in time of war had been the subject of deplorable disputes; that the uncertainty of this law gave rise to differences of opinion which might occasion serious differences and even conflicts, the plenipotentiaries at Paris, seeking to introduce into international relations fixed principles on the subject before them, declare that they have adopted the following summary of the rules which they wish to see carried into practice: First, privateering is abolished; second, the neutral flag covers enemy's goods with the exception of contraband of war; third, neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag; fourth, blockades in order to be binding must be elective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. The net result shows that the rule, free ships make free goods, was adopted; but the other rule which has so often been coupled with it, enemy ships make enemy goods, was not adopted.

This Declaration was adhered to by all the Powers who had joined in the Crimean war, and it seemed for awhile that it would receive the assent of the whole of the civilized world, thus forming the first great example of a reform of the Law of Nations resting on the basis of expressly pledged faith instead of the older foundation of precedent and ancient rule. But on the Declaration being submitted to the United States, the Government of that country objected to the first article, 'Privateering is abolished.' A privateer is an armed private ship commissioned by belligerent sovereign to depredate on the commerce of his enemy, and rewarded by a share of the capture, which in recent times has amounted nearly to the whole of it. The reason given for the refusal of the United States by Mr. Marcy, the Secretary of State, was plausible enough.

'The United States consider powerful navies and large standing armies as permanent establishments to be detrimental to national prosperity and dangerous to civil liberty. The expense of keeping them up is burdensome to the people; they are in some degree a menace to peace among nations. A large force ever ready to be devoted to the purposes of war is a temptation to rush into it. The policy of the United States has ever been, and never more than now, adverse to such establishments, and they can never be brought to acquiesce in any change in International Law which may render it necessary for them to maintain a powerful navy or large standing army in time of peace. If forced to vindicate their rights by arms, they are content, in the present aspect of international relations, to rely in military operations on land mainly upon volunteer troops, and for the protection of their commerce in no inconsiderable degree upon their mercantile marine. If this country were deprived of these resources it would be obliged to change its policy and assume a military attitude before the world. In resisting an attempt to change the existing maritime law that may produce such a result, it looks beyond its own interest, and embraces in its view the interest of such nations as are not likely to be dominant naval Powers. Their situation in this respect is similar to that of the United States, and to them the protection of commerce and the maintenance of international relations of peace appeal as strongly as to this country to withstand the proposed change in the settled Law of Nations. To such nations the surrender of the right to resort to privateers would be attended with consequences most adverse to their commercial prosperity without any compensating advantages. . .

'It certainly ought not to excite the least surprise that strong naval Powers should be willing to forego the practice, comparatively useless to them, of employing privateers, upon condition that weaker Powers agree to part with their most effective means of defending their maritime rights. It is in the opinion of this Government to be seriously apprehended that if the use of privateers be abandoned, the dominion over the seas will be surrendered to those Powers which adopt the policy and have the means of keeping up large navies. The one which has a decided naval superiority would be potentially the mistress of the ocean, and by the abolition of privateering that domination would be more firmly secured. Such a Power engaged in a war with a nation inferior in naval strength would have nothing to do for the security and protection of its commerce but to look after the ships of the regular navy of its enemy. These might be held in check by one-half or less of its naval force, and the other might sweep the commerce of its enemy from the ocean. Nor would the injurious erect of a vast naval superiority to weaker states be much diminished if that superiority were shared canons three or four great Powers. It is unquestionably the interest of such weaker states to discountenance and resist a measure which fosters the growth of regular naval establishments.'

It is at the same time to be remarked that this opinion, though intelligible, had not always prevailed, and that early in their history the United States had negotiated, through Benjamin Franklin, a treaty with Prussia in 1785 by which it was stipulated that in the event of war neither Power should commission privateers. On the other hand, an early president of the American Union, Monroe, had laid down that it was unworthy of civilised states to prey upon private property when in transit at sea. The result of the refusal of the United States to assent to the Declaration of 1854 was that this Declaration has not become part of the general law of other civilisations, for the assent of a state which is perhaps destined to be the most powerful in the world, and certainly the most powerful neutral state in the world, has been withheld from it. But the United States Government expressed its willingness to join in a modified form of the Declaration, if all private property at sea should be exempted from capture, as President Monroe had argued that it ought to be; and there is good reason to believe that if the signatories of the Declaration would agree to this exemption of private property, the United States would withdraw their objection to the abolition of privateering.

The first article of the Declaration was invoked in a dispute which arose between the French and Prussian Governments, then at war, during the contest of 1870. The Prussian Government, soon to be merged in that of Germany, proposed to raise a volunteer navy. All German seafaring men were to over themselves for service in a Federal navy for the whole period of the then proceeding war. The French Government objected to this as a breach of the first article of the Declaration. They declared that it was a species of revival of privateering. Some writers, including Mons. Calvo, and to a certain extent Mr. Hall, have supported these views; but some conditions of the service proposed to be established, as for example the necessity for the volunteers wearing a uniform, the incorporation of the new force with the existing navy, and an oath to articles of war, seem to me to take these naval volunteers out of the class of privateers. As a matter of fact, the Decree was never practically acted upon.

It will be seen from the text of the Declaration of Paris, which is set forth above, that its rules do not apply in two cases: first, where contraband of war is carried in a ship; and next, in the case of a ship endeavouring to obtain entrance to a blockaded town. Therefore the law of contraband of war and the law of blockade are not touched by the reform under the Declaration of Paris, except so far as a principle long contended for is applied to blockades.

From the very beginning of International Law a belligerent has been allowed to prevent a neutral from supplying his enemy with things capable of being used immediately in war. Such things are called technically 'Contraband of War,' and may be condemned independently of all question as to the neutrality of the owner. The ship and cargo are taken into a port of the captor; the contraband is condemned in a prize court, but the fate of the ship itself varies. If the ship belongs to the owner of the contraband, or if the owner of the ship is privy to the carriage of the contraband, the ship is condemned; but not so if the ship belongs to a different owner, who knows nothing of the destination of the contraband commodities. This branch of International Law is complex and difficult, but it owes its intricacy and difficulty to one special question: what are the articles stigmatised as contraband? From the very first, Grotius had laid down that things directly used in war -- for example, weapons -- were contraband. He also ruled that things useless in war, articles of luxury as he described them, were not contraband. But outside these categories there were a great number of things capable of employment both in war and peace -- res ancipitis usus -- and it is in regard to these that innumerable questions have arisen. Are articles of naval construction -- for example, the raw materials of sails and cordage -- contraband? Do they become so at any particular stage of manufacture? Are iron, brass, steel, etc. contraband? Are coals and horses? Are provisions contraband? To these questions all sorts of answers have been given. In many special treaties the list of contraband and non-contraband commodities is given, and the practice of states is extremely various. On the whole the most general rule which can be laid down is that, with the exception of weapons or munitions of war, the contraband, or non-contraband, character of the cargo must depend on its destination, and on the nature of the particular war which is going on. The commodity most recently sought to be brought into the list as contraband is coal. England, the great exporter of coal, refused to admit its being necessarily contraband; but in the war of 1870 the English Government declined to allow British coal to be carried to a French fleet that was lying in the North Sea. The most vehement of the disputes has been, perhaps, that about provisions. At the end of the last century, when the great war of the Revolution had beam, English statesmen believed the French population to be on the point of starvation; and that the French were suffering great distress from scarcity of food is now most fully established. The English Government therefore seized all ships bound to a French port which were laden with provisions. As their enemy was believed by them to be on the point of abandoning the contest through want of provisions, they refused to allow the stock of provisions to be increased. Just at the same moment the United States had become the great neutral Power enjoying the advantages of the carrying trade, and the Government of the United States issued a series of vehement protests against the assumption of the contraband character of provisions in any circumstances. It is probable that in future provisions will only be contraband when destined for a port in which an enemy's fleet is lying. The point on which I desire to fix your attention is that the test of articles which are contraband of war is not yet settled.

The other portion of the older law which is not affected by the Declaration of Paris is Blockade. Blockade is defined as the interruption by a belligerent of access to a place, or to territory, which is in possession of an enemy. Blockade is probably confined to maritime hostilities; but it has considerable external resemblance to a siege by land, and the law of the one acting by land has visibly affected the law of the other acting by sea. But as a matter of fact the objects of blockade and siege are not the same. The aim of a siege is the capture of a strong place or town beset. The aim of a blockade is to put stress on the population of a port, or on the population behind it, through denying it communication, commercial or otherwise, with the rest of the world accessible to it only by sea. This it effects by the rules of International Law, which permit blockading ships to capture ships of the other belligerent which attempt to enter the blockaded port, or to come out of it, or which may reasonably be suspected of having this intention.

There are two main conditions of the capture of neutral vessels by a blockading squadron. One is that they must be warned of the existence of the blockade. The mode of giving this notice required by law varies in different countries. France and certain other countries give notice to each ship individually, their cruisers stopping it, and seeing that the stoppage is notified on the ship's papers. England and the United States make public notice in their own territory, and communicate the fact of the blockade to foreign Powers. Under modern circumstances, where information is conveyed over the civilised world by newspapers and the electric telegraph, it certainly seems that the English and American practice is sufficient. It is hardly possible that there should be ignorance nowadays of the existence of an established blockade.

The second condition is that mentioned in the Declaration of Paris: the blockade must be effective; that is, it must be maintained by a naval force strong enough to prevent access to the blockaded coast. It is the act of secretly evading a force on the whole adequate which constitutes the offense that subjects a neutral ship to capture -- what is called 'running the blockade.' The stress laid on the sufficiency of the blockade is a legacy from the last century. Hardly any country has not been at some time or other accused of establishing what is called a 'paper blockade;' that is to say, publicly announcing the blockade of a particular portion of the coast, but not supporting it by a sufficient force of ships. It is justly thought that such a blockade gives the maximum of annoyance to honest neutrals, but allows a maximum number of dishonest neutral adventurers to penetrate the line. Nothing can justify the absolute interdiction of a portion of the coast to neutral commerce except a method likely on the whole to secure that end. A blockade must as a general rule be continuously maintained, but an exception is allowed in the case of ships driven away by storm and stress of weather.

Lecture VI : The Declaration of Paris

LECTURE VI.
THE DECLARATION OF PARIS.
One point of considerable interest in International Law is the very different degree of durability which the various parts of the system have proved to possess. The oldest rules which belong to its structure are simply rules of religion and morality ordinarily applied between man and man, but so modified by the international writers as to be capable of application between state and state. By the side of these are borne rules which have been inherited from the oldest stratum of the Roman Law, rules of great simplicity, and distinguished at the same time by a great amount of common sense. These rules still survive and are still available for the solution of international questions. On the other hand, there are parts of International Law which are comparatively modem, which are highly complex, and which in their day were of great importance, but which have now become thoroughly obsolete through changes in the social condition of nations or international intercourse. A good example may be pointed out in what was once known as the Rule of the War of 1756. If you look into an international discussion dating from the latter part of the last century, if you look into the reports of the decisions of courts belonging to the same epoch, you will find constant allusions to this rule, which ultimately became the subject of a serious quarrel between England and the United States, a sovereign community which had not been in existence when the rule was first heard of in England, like probably all the nations of the European continent, adhered to the doctrine that trade with colonies and dependencies was the exclusive privilege of the subjects of the mother country. The question arose whether war made any difference to this monopoly. When the mother country became a belligerent, the route followed by the colonial trade was less obstructed than in ordinary times. The ships which watched the foreigner who in peace tried to intrude upon it, were perhaps driven away by the vessels of the other belligerent; and the route being more open, neutrals constantly tried to engage in trade which in time of peace would have been forbidden to them. What, then, was the consequence of neutral invasions of this privilege? It was argued on behalf of the neutral trader, that there being nobody else to undertake the transport of commodities, he was entitled to share in it. This was denied by the English courts of justice, and they decided that a neutral ship, engaged in a trade of this description, was liable to capture. This was the rule of the war of 1756, which denied to neutral shipowners participation in the trade which was a monopoly of the mother country or the country which was sovereign over the dependency. There was at that time a rule which forbade certain articles to be exported from Ireland; and of course the trade of India, which was in the hands of a company, was even less open to nonprivileged traders. But this rule, and the state of things which it implied, are now completely obsolete, and all the dissertations about them which once filled the books are obsolete. It was the United States, then new as a sovereign community, which first contested most strongly the legality of the rule. But it has been in fact destroyed by the indirect influence of the United States. The fortune of the United States showed that a great increase of national wealth followed independence, and the demonstrable profitableness of open trade sapped the old colonial theories, while, no doubt, the success of the United States in securing their independence showed the danger of attempting to control extensive and distant dependencies.

A specially interesting set of questions arises on the four articles of the Declaration of Paris, the great modern system of reformed maritime law which, but for one dissentient, would have become the law of the whole civilised world. This Declaration, as we have seen, keeps alive two sub-departments of the old law of nations in very much their original state; the law of contraband of war, and the law of blockade. Let us ask ourselves whether these branches of law are likely to be long-lived even as slightly altered by the arrangements of Paris. I have already pointed out that the list of articles of contraband of war was not yet closed. The proposal to include certain things in this class has not in some cases been conclusively rejected, while, on the other hand, as it is very generally allowed that commodities may become contraband through the circumstances of a particular war, perfectly new kinds of contraband may yet make their appearance. Perhaps the articles as to which there has been most dispute have been those which follow the first class and head the second; the first class being munitions of war, and the second class things of what, in International Law, are called 'doubtful use;' timber, sail cloth, hemp in the early stages of manufacture, cordage, pitch and tar. Lord Stowell admits this, and gives the reason, that wars have become more and more naval, so that articles of most use in regard to ships, and the propulsion of ships, gain more and more likeness to munitions of war. There were endless controversies on the subject. There were repeated differences with the Baltic Powers it whose territories the materials of these things were for the most part produced. Many treaties gave lists of articles of contraband, and to some of these England was a party. The principle which the English Government several times adopted was, that naval stores might be taken possession of, but that, unlike articles of contraband, they must be paid for by the captor. But changes in the structure and mode of propulsion of ships tend to make this kind of contraband or quasi-contraband obsolete. Steam renders sails of little utility, and diminishes their number. The hulls are now more and more made of iron, and iron wire even takes the place of cordage. It is possible that naval stores may disappear from the list of contraband, while there may be a struggle to include such innocent articles as coal and food.

The second exception to the immunity of neutral property is, property carried in a ship attempting, or reasonably suspected of attempting, to enter a blockaded port. Blockades in the last century were considered by belligerents a most elective method of distressing an enemy; and over great part of the European continent the great markets for traders and the fortified stations for ships are most exposed to blockade. To prevent neutral vessels from entering or leaving these ports, was to do severe injury to trade; and to impoverish the blockaded port was to impoverish the country round about, and, if ships of war were lying within the port, to diminish seriously the total fighting force of the enemy. Brest and Toulon were practically blockaded all through the great war at the beginning of this century and the end of the last. England was again a belligerent during the Crimean war, and there were some blockades, not perhaps very important, of ports in the Baltic and the Black Sea. But during the American war between the Northern and Southern States she became a neutral, it having been at last allowed, even by the United States, that there was a state of belligerency between the combatants. Even then it became clear that a considerable change had occurred. Steam made the limited navy of the Northern States able to maintain a fairly elective blockade of nearly the whole coast of the Southern Confederate States. Steam also greatly facilitated the operations of the neutral blockade-runners. But the land behind the ports of the Southern States was rich and fertile, and many railways had been constructed in those territories. The effect, therefore, of the blockade was very unlike the eject of the blockades in the great French war. Articles of first necessity were easily supplied to the blockaded ports from within, and the effect of the blockade was to raise the price of luxuries, which were always imported from abroad. If, however, we look on the present state of the world, we shall see that no European continental Power of any importance exists which is not connected by railways with the interior of the country to which it belongs, and also, through connecting links, with the railway system of the whole Continent. A blockade may still raise the price of necessaries and conveniences, but unless aided by a land siege it cannot prevent a sufficient and even plentiful supply of necessaries and conveniences entering a blockaded place. It cannot arrest trade; it can only divert it. A land traffic would at once take the place of a maritime traffic. Hardly any colonial produce reached the blockaded ports during the great war with France. Now it would flow in from a dozen openings in Eastern and North-eastern Europe. It is possible that no part of North America could now be blockaded so as to greatly distress the country behind. There has been an extensive construction of railways through all the states on the east side of the United States, and an immense multiplication of manufactures throughout the country. South America, rapidly growing in wealth but insufficiently supplied with railway communication, would be the only part of the world to which neutrals would resort, and at which blockades would be of any value.

The fact that in any future maritime war it will probably be found that these branches of law have changed their character, not through any alteration of opinion, but through industrial development, may suggest a suspicion that the new maritime law created by the Declaration of Paris, though now hardly more than thirty years old, may yet shortly prove obsolete. The position is this. Neutral trade is relieved from annoyance and interruption, and privateering is abolished as regards most of the world. But the United States decline the new neutral immunities because they will not surrender privateering. Now in any new war an attempt to enforce the parts of law unfavourable to neutrals, will probably turn the neutral trading community into a belligerent, and the power of employing its own and foreign ships as privateers would make the American Union a very formidable belligerent. The question is, whether it is worth while amending the Declaration of Paris, and making it of universal application by accepting the further reforms proposed by the United States; that is, by exempting all private property from capture, and by abolishing privateering.

Let us first ask ourselves: what is supposed to be the object in war of subjecting the property of an enemy to capture, either in his own ships or in neutral bottoms? It does not directly benefit the country carrying out the law, because under modern practice a vessel properly captured belongs, not to the State, but to the captors. The assumption is that it distresses the enemy, that it enfeebles his trade, and raises greatly the price of many luxuries and commodities, and, more than all, that it seriously diminishes his capital. It is here to be observed that the view of maritime law taken, even by international lawyers, does not quite answer to the truth A metaphor used in the last century was that the operations of maritime war resembled a flight of carrier pigeons pursued by a flight of hawks. But he who would repeat this figure would have to forget the enormous growth of the practice of maritime insurance. It may happen as to war risks as with insurance against perils of the sea, that a capture of as man's vessel, if prudently managed, may enrich rather than impoverish him. No doubt enhanced rates of insurance do impoverish a nation, and do diminish its capital. But the loss is widely diffused, it falls on the well-to-do class, and a war must be very protracted in which increase of marine insurance would be sensibly felt by the mass of the population.

Another general position may be noticed. In a war in which aggression is kept on the old footing by the powers of armament which privateering gives, the Power which has most property at sea is most injured. The old law took for granted the equality not only of naval strength among states, but in volume of trade and of property risked. To the amount of risk the amount of loss will always correspond. The question,therefore, arises: what interest have we, what interest has Great Britain, in refusing to grant a general immunity from capture to all private property at sea? In the first place, so far as trade is conducted by maritime conveyance, this country has incomparably the largest share in it. This is in great part a consequence of a revolution in shipbuilding. So long as ships were built of wood, the maritime Powers were those which commanded most timber. The Baltic states, Russia, and the United States seemed likely to have in turn a monopoly of transport. The Dutch swept the world for timber adapted to maritime purposes. But now that ships of all classes are made of iron, the monopoly of construction and possession has passed to Great Britain. We are both the constructors and the carriers of the world, and we suffer more than any other community from all dangers, interruptions, and annoyances which beset maritime carriage.

But far the most serious consideration affecting the matter before us -- that is, the conformity of the Declaration of Paris to our permanent interests -- is the relation of maritime law, which it sets up, to the supply of food. The statesmen of the last century, and of the first part of this, unhesitatingly assumed that it was the interest of this country to raise the largest part of the food of its population from British soil. They were used to wars, and the great French war seemed to them to establish that a country not fed by the produce of its own soil might be reduced to the greatest straits. In fact, the price of corn during the great French war, and even for some years following it, was absolutely prodigious. This is the secret of their protectionism, and not any particular economical theory. They looked on the evils of importing food from abroad as a clear deduction from experience. Since that period, the infrequency of wars has kept out of sight the unexampled nature of our position with regard to food. So far as the articles most necessary to life are concerned, we are mainly fed from other countries, removed from us by vast distances from North America and from India; that is to say, a great part of the national food before reaching us is only accessible to us through maritime carriage, very long and capable of very easy interruption. Sir James Caird, in a paper which he has recently published, says that the food imported into Great Britain during the year 1887 would probably reach one hundred and forty millions sterling. Nor can the balance between foreign commodities and home supplies be seriously altered. Sir James Caird points out in the same paper that Great Britain is steadily becoming a pastoral country instead of an agricultural country. The state of living under any circumstances is at all times very hard to alter; and population, at various degrees of pace, always multiplies up to subsistence. On the other hand, the price which we pay for our prodigious purchase of food in other countries is really paid by our manufactures, of which the ultimate sources are our coal and our iron, and the inherited skill of our operative classes. Thus the greater part of the food which we consume in any year can only reach us through a long voyage, and the price which is the means of bringing it to us must also come through a voyage of equal length. These, of course, are economical reasons, but I also look on the subject from the point of view of International Law. Unless wars must be altogether discarded as certain never again to recur, our situation is one of unexampled danger. Some part of the supplies which are matter of life and death to us may be brought to us as neutral cargo with less difficulty than before the Declaration of Paris was issued, but a nation still permitted to employ privateers can interrupt and endanger our supplies at a great number of points, and so can any nation with a maritime force of which any material portion can be detached for predatory cruising. It seems, then, that the proposal of the American Government to give up privateers on condition of exempting all private property from capture, might well be made by some very strong friend of Great Britain. If universally adopted, it would save our food, and it would save the commodities which are the price of our food, from their most formidable enemies, and would disarm the most formidable class of those enemies.

Of course I am aware of the objections which might be made. It may be asked whether it would tend to diminish wars if economical loss were reduced to the lowest point, and if hostility between nations resolved itself into a battle of armed champions, of ironclads and trained armies, if war were to be something like the contests between the Italian States in the Middle Ages, conducted by free companies in the pay of this or that community. I think that, even thus modified, war would be greatly abated. But this is a subject which ought not to be taken for granted without discussion, and I hope in some future lecture to take it up and go into it completely.

Lecture VII : The Mitigation of War

LECTURE VII.
THE MITIGATION OF WAR.
The age in which International Law was born was an age of land wars. The wars of succession and of feudal ascendancy had partially died out, but the Reformation brought with it a new fury of fighting, and the wars of religion were among the most ferocious that mankind had waged. Armies did not then so much consist of rival potentates, as of hosts in which each individual detested every man on the generally believed to have culminated in the siege of Magdeburg. There is a famous passage of Grotius about the licence of fighting which he saw around him; and though the dates forbid us to see here with solve writers any allusion to the siege of Magdeburg, there seems little doubt that the stories of the horrors which became current gave a new point to the speculations of Grotius and his school.

Until very recent times there is great ground for distrusting the accuracy of the figures which purport to represent the amount of slaughter at battles and sieges. It is said, however, that the population of Magdeburg, which was taken by storm, was reduced from 25,000 to 2,700. The siege is described by an English eyewitness, whose account of it, generally regarded as authentic, constitutes those 'Memoirs of a Cavalier' which are generally embodied in the works of Defoe. The writer states that out of 25,000 men, and some said 30,000, there was not after the storm a soul to be seen alive till the flames drove those that were hid in vaults and secret places to seek death in the streets rather than perish in the fire. Of these miserable creatures too some were killed by the fierce soldiers, but at last they saved the lives of such as came out of their cellars and holes, and so about 2,000 poor desperate creatures were left. There was little shooting. The execution was an cutting of throats and mere house murders. Later historical information tends on the whole to relieve the memory of Count Tilly, the commander of the besiegers, from the infamy which has hitherto attached to it; but all sieges in that day were to the last degree homicidal, and there is a general impression that the peculiar ferocity of the soldiery after the capture of a town by storm was due to the Tartars, who had twice overrun what were then the most fertile and civilised portions of the world, and who never spared the population of the town which had resisted them. They appear to have considered that every stratagem and every degree of bad faith was justifiable for the purpose of inducing the garrison to surrender, but in the long run they never spared any man. Nor have the countries in which these massacres took place ever wholly recovered from them. So far, indeed, as the centre and west of Europe are concerned, there is visible a calming down of these bitter extremities of war as soon as Grotius, with perhaps a few predecessors and a series of successors, began to write. I have already several times referred to his method. He was guided, as it seems, principally by what he supposed to be examples and precedents. He was a man of great learning according to the particular standards of learning which prevailed in that day; but the critical treatment of history had not begun, and the worst of the pile of innumerable examples which are collected in the 'De Jure Belli et Pacis' is that we cannot be sure of the authenticity of the accounts of them which are found in the books of ancient writers. Grotius digested these precedents. He separated the most humane from the most ferocious, performing the function of separation by applying to the mass of matter before him, first of all the test of religious teaching as he found it in the Scriptures, and next the principle of what the Romans called the Law of Nature. The method of his immediate successors has been substantially the same; but in our day some scepticism has arisen, not so much as to the philosophical value of the process as with regard to its practical results. In modern international writings you may sometimes find it said that the softening of the usages of war was not so much due to Grotius, or to writers who came after him, as to the growing humanity of military commanders. It is true that among the successors of Grotius there is a great variety in the degree of humanity which characterizes them. Puffendorf and Bynkershoek are inferior to Vattel in gentleness, and in the wish to prefer the more humane to the queller usage, but beyond comparison the most humane of the publicists is Vattel, a Swiss. There is, however, very good reason to suppose that it was the writings of the publicists which most encouraged the humanity of war. They all followed Grotius in professing unbounded respect for the Roman conception of the Law of Nature. Philosophically that principle is now not much cared for; but the supposed rules of the Law of Nature were applied by another set of writers to another subject matter. There was a gradual growth all over continental Europe in the eighteenth century of respect and reverence, and even enthusiasm, for humanity, and you may perceive that on the whole the persons who experienced, or pretended to experience, this feeling, were: believers in the Law of Nature. The chief of them was that famous man the whole of whose philosophy, political, social, and educational, was based on the Law of Nature, Jean Jacques Rousseau. It seems in truth, apart from what the opinion of scholars may have been, that there was always a close association between the Law of Nature and humanity, and that by their constant profession of applying that law and of easily distinguishing its dictates from one another the international writers did materially increase the gentleness of mankind even when their passions were most excited.

The wars of the last part of the seventeenth and most of the eighteenth century were naval wars. A great amount of law grew up while they were continuing. One chief reason why, on the whole, naval usages are reasonable and humane is, that the belligerents were checked by the neutrals. In land wars a neutral can only affect proceedings to which he objects by taking part in the strife; but from the very first the belligerent maritime Powers were prevented from going to the full lengths of predatory destructiveness by the authority of prize courts. It is, however, quite true that the commanders of land forces did gradually abandon the ferocity with which Tilly has been reproached. There was no more humane commander on the whole than our own Duke of Wellington. It is singular, at the same time, that he constantly falls into an error with which English lawyers are specially charged, that of confounding military law, which is regulating law, with martial law, which means the will of the officer commanding. He always spoke of the law of war as consisting in the volition of the Commander of the Forces.

The first great attempt which was made after the epoch of Grotius to give general fixity and to humanise the law of land war, was made almost in our day by an unfortunate sovereign to whom justice has never been fully done, Alexander II of Russia. He does seem to have been animated, as were both the statesmen and literary men occasionally in the eighteenth century, by an enthusiasm for humanity. You are all aware that almost immediately after his succession to the Russian throne he abolished serfdom; but his efforts to reform International Law, and specially the usages of war, are less remembered. He joined in promoting the Geneva Convention, of which I shall say much presently; he was the author of the proposal for renouncing the use of certain weapons which caused wounds of unusual painfulness; and he was the sovereign who summoned and who took an unflagging interest in the

Brussels Convention of 1874. The Brussels Convention failed, and we shall find, I think, hereafter that the reasons why it failed are remarkably instructive. I will say that one of the grounds for its not coming to maturity was, that it was commenced too soon after one of the greatest of modern wars, which probably never had a rival in the violence of the passions which it excited. England before the Convention met had stipulated for the omission of all discussion of the rules of naval war. These, I suppose, were considered to have been sufficiently settled for the day by the Declaration of Paris; and at the close of the discussions of the Conference, when even its members admitted that they had been able to agree on a very small part of the matters submitted to them, it was the English Foreign Secretary of State, Lord Derby, who finally gave the Convention its deathblow. Undoubtedly the smaller Powers of Europe, and the Powers which have not yet taken up the system of great armies raised by conscription, had very serious reasons for objecting to many of its suggestions, which had not unnaturally sprung up in the minds of military men who sympathised either with France or with Germany in the war which a few years before had been brought to a conclusion. The Brussels Conference had, however, one result which had great importance and interest. Just at the close of the American War of Secession the United States had prepared a Manual of Rule and Usage for the use of their officers in the field. This example -- the formation of a practical Manual stating for the officers of each nation what contingencies they were to be prepared for in actual contest and how they were to deal with them -- was followed by Germany, by England, and by France? and some of these Manuals have been adopted by smaller Powers. But they were all greatly affected by the recommendations of the Conference of Brussels; and in reality it may be said that wherever there was anything like an approach to unanimity in the decisions and votes of the Conference, it is adopted in this somewhat irregular form by the greater part of the nations of the world.

The Manual prepared for English officers, which was, I believe, chiefly compiled by the present Lord Thring, then the official draftsman of the British Government, is one of the best. Visibly the writer has taken all that he could take from the humaner doctrines of the publicists, more particularly from Vattel, but he never pretends to lay down authoritatively the law, which he nevertheless declares in such a form that it is now possible for a student of law to read it and to gain from it a very vivid notion of what a land war in which England was engaged would be like if unhappily it occurred. I will proceed to read to you certain passages from this Manual, taking portions at the same time from other Manuals, and making some remarks as I go on upon the older history of the customs of war of which it treats. I am sorry to say that the British Government has not thought fit to allow it to be published, and therefore I am afraid it cannot be procured. It begins with a statement of general principles.

'War, properly so called, is an armed contest between independent nations, and can only be made by the sovereign power of the State. In this country a formal announcement of war is made by a proclamation issued by her Majesty and posted in the City of London. The first consequence of this existence of a state of war between two nations is, that every subject of the one nation becomes in the eye of the law an enemy to every subject of the other nation; for as every subject is politically a party to the act of his own Government, a war between the Governments of two nations is a war between all the individuals of each nation. This principle carried to its extreme limits would authorise the detention, as prisoners of war, of subjects of one of the hostile parties travelling or resident in the country of the other at the time of the outbreak of war, and the confiscation of their goods. The exercise, however, of such a right is contrary to the practice of modern warfare, and the conduct of Napoleon cannot be justified, who on the outbreak of the war with England in 1803 seized all the English travelling in France between eighteen and sixty years of age, and detained 10,000 of them in prison, where they remained till the peace of 1814. The usage with respect to goods is to allow the owners to dispose of them, or leave them to be claimed by the owners on the restoration of peace. The expulsion of subjects of the enemy from the territory of the opposing state is justifiable, and may be exercised or not according to circumstances. During the Crimean war Russians were allowed to reside quietly both in England and France. In the Franco-German war of 1870 hostile strangers revere required to quit the soil of France within a few days after they had received notice to quit. On the other hand, war is not a relation of man to man, but of state to state, and in itself implies no private hostility between the individuals by whom it is carried on. They are enemies only in their character of soldiers, and not as men. The object of war, politically speaking, is the redress by force of a national injury. The object of war in a military point of view is to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money.' 'Wars,' says Lord Bacon, 'are no massacres and confusions, but they are the highest trial of right, when princes and states, that acknowledge no superior on earth, shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give to either side.'

Going back upon this list of general principles, I must call your attention to the contrast between the statement that the first consequence of the existence of a state of war between two nations is that every subject of the one becomes in the eye of the law an enemy to every subject of the other nation, and the proposition that war is not a relation of man to man, but of state to state, and of itself implies no private hostility between the individuals by whom it is carried on, that they are enemies only in their character of soldiers, and not as men. Several critics in European countries have remarked on this, that the two propositions do not fall in with one another; that the first of them would authorise the killing of women and children, whereas the second reduces war to a contest between professional soldiers. I think there is some justice in this criticism, that the two propositions belong to different periods of history. The first represents what might have been the theory of law if an attempt had been made to express it at the period of Greek classical antiquity, while the second proposition represents a new theory to which the world has generally advanced. Many passages which meet us in Thucydides show that in point of fact in the view of the Greeks war must have been thought (if anybody theorised about it) to be waged between the whole of the subjects of one state and the whole of the subjects of another. There is a passage that recurs frequently, that they killed the men, and the women and children they reduced to slavery. The women and children were in fact considered, as well as the men, to be in a state of enmity to the other belligerent state. I remark here, what many have remarked as well, that one consequence of the decay and abolition of slavery was an increase of bloodshed. Women and children and occasionally grown men had a value of their own which supplied a motive for keeping them alive, and at a later date bloodshed was, to a certain extent, diminished by the practice of ransoming; and there were no bloodier wars than those which occurred when the practice of ransoming had just died out.

The next portion of the Manual has for a title: 'The means by which war should be carried on' -- that is to say, the means by which war is as a fact carried on among civilised and relatively humane enemies. The writer says: 'The poisoning of water or food is a mode of warfare absolutely forbidden; but the turning off the supply by stopping convoys of food to the enemy is one of the usual methods of reducing them to submission. The use of poisoned weapons and of weapons calculated to produce unnecessary pain or misery is prohibited, on the ground that, as the object of war is confined to disabling the enemy, the infliction of any injury beyond that which is required to produce disability is needless cruelty.'

As to the poisoning of water and food, the best explanation of its prohibition is that it seems to have existed from very earliest times. It is quite certain that both Greeks and Romans thought that the poisoning of water and food was worthy only of barbarians. What was the origin of this feeling? has been asked by writers of modern days. It may have been that the poisoning of water and food was thought a peculiarly pailful mode of inflicting death. The only poison of great efficacy which seems to have been known to antiquity, and which indeed was the base of the subtle poisons employed in the Middle Ages by the Italians, was arsenic, which no doubt causes death coupled with the extremest pain. Or it may have been the idea that poison was not fair fighting -- and this shows itself as a very strong feeling in very ancient days -- that on the whole each combatant ought to have the means of employing his skill in resistance.

On the subject of the use of poisoned weapons, and weapons calculated to produce unnecessary pain or injury, one of the chief modern reforms of the law of war has been attempted, and with as much success as it was possible for it to command. By the Declaration of St. Petersburg, proposed by the Emperor Alexander II and signed in 1868 by all the civilised Powers, the contracting parties agreed to renounce the use by their forces on land or sea of an explosive projectile of a weight below 400 grammes -- a little more than fourteen ounces -- charged with fulminating or inflammable matter. I have heard that this provision in the Declaration of St. Petersburg has no longer its humane effect in consequence of the progress of science, which, I am sorry to say, has often had the effect of defeating attempts to increase the area of humanity. It is alleged that the conical bullets which are universal in modern armament do in fact cause pain as severe and wounds as incurable as ever did the explosive bullets which were just coming in about the year 1868. I am myself incompetent to meet the objection, but at all events we must mark that the Declaration of St. Petersburg, expressing the opinion of the whole civilised world, declares that the object of war is confined to disabling the enemy, and lawful usage does not warrant any state in causing injuries which give more pain than is necessary for that comparatively humane object.

A further universally accepted rule is as follows: 'Assassination is against the customs of war. Assassination is the murder by treachery of individuals of the hostile forces. The essence of the crime is treachery, as a surprise is always allowable, and a small force may penetrate into the enemy's camp, despatch the sentinels, take the general officer prisoner or kill him, without infringing any of the customs of war or subjecting themselves, if taken, to be treated otherwise than as prisoners of war. It is the duty of the enemy to be prepared against a military surprise, but not to guard himself against the treacherous attacks of individuals introduced in disguise into the camp.'

Assassination began to be regarded with peculiar horror immediately after the Reformation. No doubt it was the murder of William of Orange, more than suspected of having been prompted by the Spaniards, which brought about the fierce denunciations of which it is the subject. There will always, of course, be some danger of this crime being resorted to when a war, as is sometimes the case, appears to depend entirely on the life of one individual -- a great statesman or a great general. That was the position of William of Orange, in the opinion of all his Catholic enemies. But it has often been noted that a new feeling had arisen in the interval between the wars of the Reformation and the progress of the greatest war in which this country has ever been engaged. Many writers quote with the strongest approval the action of Mr. Fox when Foreign Secretary. A promising scheme for the murder of the great Napoleon was communicated to him, and he at once made it known in Paris and informed the Emperor of the danger which threatened him. The feeling elicited by this proceeding of the English Foreign Secretary was so strong and has so little decayed, that I think with the writer of the Manual we may safely lay down that assassination is against the customs of war.

He proceeds: 'With the exception of the means above stated to be prohibited, any instruments of destruction, whether open or concealed, partial or widespread in their effects, shells of any weight, torpedoes, mines, and the like, may legitimately be employed against any enemy; and seeing that the use is legitimate, there is no reason why the officers or soldiers employing them should be refused quarter or be treated in a worse manner than other combatants. A humane commander will, no doubt, so far as the exigencies of war admit, endeavour to provide that the effect of the explosion of a mine or torpedo should extend to combatants only, but practically no rule can be laid down on the subject. The general principle is, that in the mode of carrying on war no greater harm shall be done to the enemy than necessity requires for the purpose of bringing him to terms. This principle excludes gratuitous barbarities, and every description of cruelty and insult that serves only to exasperate the sufferings or to increase the hatred of the enemy without weakening his strength or tending to procure his submission.'

I have further to remark on these portions of the Manuals before us, that one of the most curious passages of the history of armament is the strong detestation which certain inventions of warlike implements have in all centuries provoked, and the repeated attempts to throw them out of use by denying quarter to the soldiers who use them. The most unpopular and detested of weapons was once the crossbow, which was really a very ingenious scientific invention. The crossbow had an anathema put on it, in 1139, by the Lateran Council, which anathematized artem illam mortiferam et Leo odibilem. The anathema was not without effect. Many princes ceased to give the crossbow to their soldiers, and it is said that our Richard I. revived its use with the result that his death by a crossbow bolt was regarded by a great part of Europe as a judgment. It seems quite certain that the condemnation of the weapon by the Lateran Council had much to do with the continued English employment of the older weapon, the longbow, and thus to the English successes in the wars with France. But both crossbow and longbow were before long driven out of employment by the musket, which is in reality a smaller and much improved form of the cannon that at an earlier date were used against fortified walls. During two or three centuries all musketeers were most severely, and as we should now think most unjustly, treated. The Chevalier Bayard thanked God in his last days that he had ordered all musketeers who fell into his hands to be slain without mercy. He states expressly that he held the introduction of firearms to be an unfair innovation on the rules of lawful war. Red-hot shot was also at first objected to, but it was long doubtful whether infantry soldiers carrying the musket were entitled to quarter. Marshal Mont Luc, who has left Memoirs behind him, expressly declares that it was the usage of his day that no musketeer should be spared.

The bayonet also has a curious history. No doubt it must be connected by origin in some way with the town of Bayonne, but the stories ordinarily told about its invention and early use seem to be merely fables. No invention added more to the destructiveness of war, as the bayonet turns the musket into a weapon which is at once a firearm and a lance. The remarkable thing about it is, that though known it remained for so long unused. It was Frederick the Great who is said first to have used it generally or even universally among his soldiers. The probability is that the fear of exposing infantry to deprivation of quarter if taken prisoners caused this hesitation in using it. In our own army we have an example of the feeling which the old usage of war on the subject of certain weapons created, in the green uniform of the Rifle Brigade. It seems to have been long doubted whether foot soldiers armed with the early form of rifle would have their lives granted to them if they were taken prisoners; and the green uniform, first used among the olive foliage of Spain and Portugal, was supposed, it is now said untruly, to give a greater protection than clothes of any other colour at a longer distance.

Looking back on this long-continued state of feeling on the subjects of new and destructive inventions, one may perhaps wonder that mines and torpedoes, and particularly the torpedo of our day, have not met with harsher feeling. But the reason why no such attempts as were formerly tried to drive out of use especial weapons are likely hereafter to be seen, is that, in the first place, any art, and especially an art of destruction, is in our day likely to see rapid improvements. We know of no limit to the power of destroying human life; and when the extension of the area of this power by a professional class has once set in, it is impossible for us to lay down to what lengths it may go or over what time it may extend. The invention proceeds so rapidly that a peculiarly objectionable form of it can rarely be noted and specified. On the other hand, it is a more satisfactory reflection that wars have on the whole become less frequent, and they have also become shorter. Hence the opportunities of observing the widespread and cruel destruction caused by the most formidable class of new warlike inventions are much rarer than they were.

I will proceed to say something on the history of the torpedoes which occupy so much of our attention. I may remark that when it was first invented the torpedo was received with downright execration. It first made its appearance in the war between the revolted colonies, now forming the United States, and the mother country, and it was then known as the 'American Turtle.' Many attempts to obtain an improved form of it were made during the war between England and France, when Napoleon and his armies were hanging on the coast. The principle of using clockwork had already been invented, but the peace of 1814 put an end for the time to that method of invention, and it was long before the world heard again of the catamaran, as the torpedo was next called.

The epochs in the period of humanitarian progress and voluntary codification which deserve to be identified with the name of the Emperor Alexander II of Russia are: the Convention of Geneva as to wounded, acceded to by all the European Powers in the course of the years 1864, 1865, and 1866; the Declaration of St. Petersburg in 1868; and the Conference at Brussels, which filled the greater part of the year 1874. I refer you for the results of both to Halleck's excellent book.

 
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