Military Manners and Customs

No other country, indeed, pleased these English brigand knights so well as France for the purpose of military plunder. Hence the English who returned from the expedition to Castile complained bitterly that in the large towns where they expected to find everything, there was nothing but wines, lard, and empty coffers; but that it was quite otherwise in France, where they had often found in the cities taken in war such wealth and riches as astonished them; it was in a war with France therefore that it behoved them to hazard their lives, for it was very profitable, not in a war with Castile or Portugal, where there was nothing but poverty and loss to be suffered.62

With this evidence from Froissart may be compared a passage from Philip de Commines, where he says, in speaking of Louis XI. towards the end of the following century: ‘Our master was well aware that the nobility, clergy, and commons of England are always ready to enter upon a war with France, not only on account of their old title to its crown, but by the desire of gain, for it pleased God to permit their predecessors to win several memorable battles in this kingdom, and to remain in possession of Normandy and Guienne for the space of 350 years, … during which time they carried over enormous booty into England. Not only in plunder which they had taken in the several towns, but in the richness and quality of their prisoners, who were most of them great princes and lords, and paid them vast ransoms for their liberty; so that every Englishman afterwards hoped to do the same thereby and return home laden with spoils.’63

Such, then, were the antecedents of the evil custom of war which has descended to our own time; and we shall have taken the first step to its abolition when we have thus learnt to read its real descent and place in history, and to reject as pure hallucination the idea that in the warfare of the past any more than of the present there was anything noble or great or glorious. That brave deeds were often done and noble conduct sometimes displayed in it must not blind us to its other and darker features. It was a warfare in which not even women and children were safe from the sword or lance of the knight or soldier; nor sacred buildings exempt from their rage. It was a warfare in which the occasional mercy shown had a mercenary taint; in which the defeated were only spared for their ransom; and in which prisoners were constantly liable to torture, mutilation, and fetters. Above all, it was a warfare in which men fought more from a sordid greed of gain than from any love or attachment to their king or country, so that all sense of loyalty would speedily evaporate if a king like Richard II. chanced to wish to live peaceably with his neighbours.

It is not unimportant to have thus shown the warfare of chivalry in its true light. For it is the delusion with regard to it, which more than anything else keeps alive those romantic notions about war and warriors that are the most fatal hindrance to removing both from the face of the earth. We clearly drive militarism to its last defences, if we deprive it of every period and of almost every name on which it is wont to rely as entitling it to our admiration or esteem.

CHAPTER III.

NAVAL WARFARE

Una et ea vetus causa bellandi est profunda cupido imperii et divitiarum.– Sallust.

Robbery the first object of maritime warfare – The piratical origin of European navies – Merciless character of wars at sea – Fortunes made by privateering in England – Privateers commissioned by the State – Privateers defended by the publicists – Distinction between privateering and piracy – Failure of the State to regulate privateering – Privateering condemned by Lord Nelson – Privateering abolished by the Declaration of Paris in 1856 – Modern feeling against seizure of private property at sea – Naval warfare in days of wooden ships – Unlawful methods of maritime war – The Emperor Leo VI.’s ‘Treatise on Tactics’ – The use of fire-ships – Death the penalty for serving in fire-ships – Torpedoes originally regarded as ‘bad’ war – English and French doctrine of rights of neutrals – Enemy’s property under neutral flag secured by Treaty of Paris – Shortcomings of the Treaty of Paris with regard to: – (1) A definition of what is contraband; (2) The right of search of vessels under convoy; (3) The practice of embargoes; (4) The jus angariæ– The International Marine Code of the future.

The first striking difference between military and naval warfare is that, while – in theory, at least – the military forces of a country confine their attacks to the persons and power of their enemy, the naval forces devote themselves primarily to the plunder of his property and commerce. If on land the theory of modern war exempts from spoliation all of an enemy’s goods that do not contribute to his military strength, on sea such spoliation is the professed object of maritime warfare. And the difference, we are told, is ‘the necessary consequence of the state of war, which places the citizens or subject of the belligerent states in hostility to each other, and prohibits all intercourse between them,’64 although the very reason for the immunity of private property on land is that war is a condition of hostility between the military forces of two countries, and not between their respective inhabitants.

Writers on public law have invented many ingenious theories to explain and justify, on rational grounds, so fundamental a difference between the two kinds of warfare. ‘To make prize of a merchant ship,’ says Dr. Whewell, ‘is an obvious way of showing (such a ship) that its own State is unable to protect it at sea, and thus is a mode of attacking the State;’65 a reason that would equally justify the slaughter of nonagenarians. According to Hautefeuille, the differences flows naturally from the conditions of hostilities waged on different elements, and especially from the absence at sea of any fear of a rising en masse which, as it may be the result of wholesale robbery on land, serves to some extent as a safeguard against it.66

A simpler explanation may trace the difference to the maritime Piracy which for many centuries was the normal relation between the English and Continental coasts, and out of which the navies of Europe were gradually evolved. Sir H. Nicolas, describing the naval state of the thirteenth and early part of the fourteenth century, proves by abundant facts the following picture of it: ‘During a truce or peace ships were boarded, plundered, and captured by vessels of a friendly Power as if there had been actual war. Even English merchant ships were attacked and robbed as well in port as at sea by English vessels, and especially by those of the Cinque Ports, which seem to have been nests of robbers; and, judging from the numerous complaints, it would appear that a general system of piracy existed which no government was strong enough to restrain.’67

The governments of those days were, however, not only not strong enough to restrain, but, as a rule, only too glad to make use of these pirates as auxiliaries in their wars with foreign Powers. Some English ships carrying troops to France having been dispersed by a storm, the sailors of the Cinque Ports were ordered by Henry III., in revenge, to commit every possible injury on the French; a commission undertaken with such zeal on their part that they slew and plundered not only all the foreigners they could catch, but their own countrymen returning from their pilgrimages (1242). During the whole reign of Henry IV. (1399-1413), though there existed a truce between France and England, the ordinary incidents of hostilities continued at sea just as if the countries had been at open war.68 The object on either side was plunder and wanton devastation; nor from their landing on each other’s coasts, burning each other’s towns and crops, and carrying off each other’s property, did the country of either derive the least benefit whatever. The monk of St. Denys shows that these pirates were really the mariners on whom the naval service of England chiefly depended in time of war, for he says, in speaking of this period: ‘The English pirates, discontented with the truce and unwilling to abandon their profitable pursuits, determined to infest the sea and attack merchant ships. Three thousand of the most skilful sailors of England and Bayonne had confederated for that purpose, and, as was supposed, with the approbation of their king.’ It was not till the year 1413 that Henry V. sought to put a stop to the piratical practices of the English marine, and he then did so without requiring a reciprocal endeavour on the part of the other countries of Europe.69

Maritime warfare being thus simply an extension of maritime piracy, the usages of the one naturally became the usages of the other; the only difference being that in time of war it was with the licence and pay of the State, and with the help of knights and squires, that the pirates carried on their accustomed programme of incendiarism, massacres, and robberies.

From this connection, therefore, a lower character of warfare prevailed from the first on sea than on land, and the spirit of piracy breathed over the waters. No more mercy was shown by the regular naval service than was shown by pirates to the crew of a captured or surrendered vessel, for wounded and unwounded alike were thrown into the sea. When the fleet of Breton pirates defeated the English pirates in July 1403, and took 2,000 of them prisoners, they threw overboard the greater part of them;68 and in the great sea-fight between the English and Spanish fleets of 1350, the whole of the crew of a Spanish ship that surrendered to the Earl of Lancaster were thrown overboard, ‘according to the barbarous custom of the age.’69

Two other stories of that time still further display the utter want of anything like chivalrous feeling in maritime usages. A Flemish ship, on its way to Scotland, having been driven by a storm on the English coast, near the Thames, and its crew having been slain by the inhabitants, the king rewarded the assassins with the whole of the cargo, and kept the ship and the rigging for himself (1318).70 In 1379, when a fleet of English knights, under Sir John Arundel, on its way to Brittany, was overtaken by a storm, and the jettison of other things failed to relieve the vessels, sixty women, many of whom had been forced to embark, were thrown into the sea.71

The piratical origin, therefore, of the navies of Europe sufficiently explains the fact that plunder, which is less the rule than an incident of war on land, remains its chief object and feature at sea. The fact may further be explained by the survival of piracy long sanctioned by the States under the guise of Privateering. If we would understand the popularity of wars in England in the old privateering days, we must recall the magnificent fortunes which were often won as prize-money in the career of legalised piracy. During the war which was concluded in 1748 by the treaty of Aix-la-Chapelle, England captured of French and Spanish ships collectively 3,434, whilst she herself lost 3,238; but, small compensation as this balance of 196 ships in her favour may seem after a contest of some nine years, the pecuniary balance in her favour is said to have amounted to 2,000,000l.72

We now begin to see why our forefathers rang their church bells at the announcement of war, as they did at the declaration of this one against Spain. War represented to large classes what the gold mines of Peru represented to Spain – the best of all possible pecuniary speculations. In the year 1747 alone the English ships took 644 prizes; and of what enormous value they often were! Here is a list of the values which the cargoes of these prizes not unfrequently reached:

That of the ‘Héron,’ a French ship, 140,000l.

That of the ‘Conception,’ a French ship, 200,000l.

That of ‘La Charmante,’ a French East Indiaman, 200,000l.

That of the ‘Vestal,’ a Spanish ship, 140,000l.

That of the ‘Hector,’ a Spanish ship, 300,000l.

That of the ‘Concordia,’ a Spanish ship, 600,000l.73

Two Spanish register ships are recorded to have brought in 350l. to every foremast man who took part in their capture. In 1745 three Spanish vessels returning from Peru having been captured by three privateersmen, the owners of the latter received to their separate shares the sum of 700,000l., and every common seaman 850l. Another Spanish galleon was taken by a British man-of-war with a million sterling in bullion on board.

These facts suffice to dispel the wonder we might otherwise feel at the love our ancestors had for mixing themselves up, for any pretext or for none, in hostilities with Continental Powers. Our policy was naturally spirited, when it meant chances like these for all who lacked either the wit or the will to live honestly, and returns like these on the capital invested in the patriotic equipment of a few privateers. But what advantage ultimately accrued to either side, after deduction made for all losses and expenses, or how far these national piracies contributed to the speedier restoration of peace, were questions that apparently did not enter within the range of military reasoning to consider.

Everything was done to make attractive a life of piracy spent in the service of the State. Originally every European State claimed some interest in the prizes it commissioned its privateers to take; but the fact that each in turn surrendered its claim proves the difficulty there was in getting these piratical servants to submit their plunder to the adjudication of the prize-courts. Originally all privateers were bound to deliver captured arms and ammunition to their sovereign, and to surrender a percentage of their gains to the State or the admiral; but it soon came to pass that sovereigns had to pay for the arms they might wish to keep, and that the percentage deducted was first diminished and then abolished altogether. At first 30 per cent. was deducted in Holland, which fell successively to 18 per cent., to 10 per cent., to nothing; and in England the 10 per cent. originally due to the admiral was finally surrendered.74 The crew also enjoyed an additional prize of money for every person slain or captured on an enemy’s man-of-war or privateer, and for every cannon in proportion to its bore.75

Of all the changes of opinion that have occurred in the world’s history, none is more instructive than that which gradually took place concerning privateering, and which ended in its final renunciation by most of the maritime Powers in the Declaration of Paris in 1856.

The weight of the publicists’ authority was for long in its favour. Vattel only made the proviso of a just cause of war the condition for reconciling privateering with the comfort of a good conscience.76 Valin defended it as a patriotic service, in that it relieved the State from the expense of fitting out war-vessels. Emerigon denounced the vocation of pirates as infamous, while commending that of privateers as honest and even glorious. And for many generations the distinction between the two was held to be satisfactory, that the privateer acted under the commission of his sovereign, the pirate under no one’s but his own.

Morally, this distinction of itself proved little. Take the story of the French general Crillon, who, when Henri III. proposed to him to assassinate the Duc de Guise, is said to have replied, ‘My life and my property are yours, Sire; but I should be unworthy of the French name were I false to the laws of honour.’ Had he accepted the commission, would the deed have been praiseworthy or infamous? Can a commission affect the moral quality of actions? The hangman has a commission, but neither honour nor distinction. Why, then, should a successful privateer have been often decorated with the title of nobility or presented with a sword by his king?77

Historically, the distinction had even less foundation. In olden times individuals carried on their own robberies or reprisals at their own risk; but their actions did not become the least less piratical when, about the thirteenth century, reprisals were taken under State control, and became only lawful under letters of marque duly issued by a sovereign or his admirals. In their acts, conduct, and whole procedure, the commissioned privateers of later times differed in no discernible respects from the pirates of the middle ages, save in the fact of being utilised by the State for its supposed benefit: and this difference, only dating as it did from the time when the prohibition to fit out cruisers in time of war without public authority first became common, was evidently one of date rather than of nature.

Moreover, the attempt of the State to regulate its piratical service failed utterly. In the fourteenth century it was customary to make the officers of a privateer swear not to plunder the subjects of the commissioning belligerent, or of friendly Powers, or of vessels sailing under safe-conducts; in the next century it became necessary, in addition to this oath, to insist on heavy pecuniary sureties;78 and such sureties became common stipulations in treaties of peace. Nearly every treaty between the maritime Powers after about 1600 contained stipulations in restraint of the abuses of privateering; on the value of which, the complaints that arose in every war that occurred of privateers exceeding their powers are a sufficient comment. The numerous ordinances of different countries threatening to punish as pirates all privateers who were found with commissions from both belligerents, give us a still further insight into the character of those servants of the State.

In fact, so slight was the distinction founded on the possession of a commission, that even privateers with commissions were sometimes treated as actual pirates and not as legitimate belligerents. In the seventeenth century, the freebooters and buccaneers who ravaged the West Indies, and who consisted of the outcasts of England and the Continent, though they were duly commissioned by France to do their utmost damage to the Spanish colonies and commerce in the West Indies, were treated as no better than pirates if they happened to fall into the hands of the Spaniards. And especially was this distinction disallowed if there were any doubt concerning the legitimacy of the letters of marque. England, for instance, refused at first to treat as better than pirates the privateers of her revolted colonists in America; and in the French Revolution she tried to persuade the Powers of Europe so to deal with privateers commissioned by the republican government. Russia having consented to this plan, its execution was only hindered by the honourable refusal of Sweden and Denmark to accede to so retrograde an innovation.79

An illusory distinction between the prize of a pirate and that of a privateer was further sustained by the judicial apparatus of the prize-court. The rights of a captor were not complete till a naval tribunal of his own country had settled his claims to the ships or cargo of an enemy or neutral. By this device confiscation was divested of its likeness to plunder, and a thin veneer of legality was laid on the fundamental lawlessness of the whole system. Were it left to the wolves to decide on their rights to the captured sheep, the latter would have much the same chance of release as vessels in a prize-court of the captor. A prize-court has never yet been equally representative of either belligerent, or been so constituted as to be absolutely impartial between either.

But, even granted that a prize-court gave its verdicts with the strictest regard to the evidence, of what nature was that evidence likely to be when it came chiefly from the purser on board the privateer, whose duty it was to draw up a verbal process of the circumstances of every visit or capture, and who, as he was paid and nominated by the captain of the privateer, was dependent for his profits in the concern on the lawfulness of the prizes? How easy to represent that a defenceless merchant vessel had offered resistance to search, and that therefore by the law of nations she and her cargo were lawful prize! How tempting to falsify every circumstance that really attended the capture, or that legally affected the captors’ rights to their plunder!

These aspects of privateering soon led unbiassed minds to a sounder judgment about it than was discernible in received opinion. Molloy, an English writer, spoke of it, as long ago as 1769, as follows: ‘It were well they (the privateers) were restrained by consent of all princes, since all good men account them but one remove from pirates, who without any respect to the cause, or having any injury done them, or so much as hired for the service, spoil men and goods, making even a trade and calling of it.’80 Martens, the German publicist, at the end of the same century, called privateering a privileged piracy; but Nelson’s opinion may fairly count for more than all; and of his opinion there remains no doubt whatever. In a letter dated August 7, 1804, he wrote: ‘If I had the least authority in controlling the privateers, whose conduct is so disgraceful to the British nation, I would instantly take their commissions from them.’ In the same letter he spoke of them as a horde of sanctioned robbers;81 and on another occasion he wrote: ‘The conduct of all privateering is, as far as I have seen, so near piracy, that I only wonder any civilised nation can allow them. The lawful as well as the unlawful commerce of the neutral flag is subject to every violation and spoliation.’82 Yet it was for the sake of such spoliation, which England chose to regard as her maritime right and to identify with her maritime supremacy, that, under the pretext of solicitude for the liberties of Europe, she fought her long war with France, and made herself the enemy in turn of nearly every other civilised Power in the world.

The Declaration of Paris, the first article of which abolished privateering between the signatory Powers, was signed by Lord Clarendon on behalf of England; but on the ground that it was not formally a treaty, never having been ratified by Parliament or the Crown, it has actually been several times proposed in the English Parliament to violate the honour of England by declaring that agreement null and void.83 Lord Derby, in reference to such proposals, said in 1867: ‘We have given a pledge, not merely to the Powers who signed with us, but to the whole civilised world.’ This was the language of real patriotism, which esteems a country’s honour its highest interest; the other was the language of the plainest perfidy. In November 1876, the Russian Government was also strongly urged, in the case of war with England, to issue letters of marque against British commerce, in spite of the international agreement to the contrary.84 It is not likely that it would have done so; but these motions in different countries give vital interest to the history of privateering as one of the legitimate modes of waging war.

Moreover, since neither Spain, the United States, nor Mexico signed the Declaration of Paris, war with any of them would revive all the atrocities and disputes that have embittered previous wars in which England has been engaged. The precedent of former treaties, such as that between Sweden and the United Provinces in 1675, the United States and Prussia in 1785, and the United States and Italy in 1871, by which either party agreed in the event of war not to employ privateers against the other, affords an obvious sample of what diplomacy might yet do to diminish the chances of war between the signatory and the non-signatory Powers.

The United States would have signed the Declaration of Paris if it had exempted the merchant vessels of belligerents as well from public armed vessels as from privateers: and this must be looked to as the next conquest of law over lawlessness. Russia and several other Powers were ready to accept the American amendment, which, having at first only fallen through owing to the opposition of England, was subsequently withdrawn by America herself. Nevertheless, that amendment remains the wish not only of the civilised world, but of our own merchants, whose carrying trade, the largest in the world, is, in the event of England becoming a belligerent, in danger of falling into the hands of neutral countries. In 1858 the merchants of Bremen drew up a formal protest against the right of ships of war to seize the property and ships of merchants.85 In the war of 1866 Prussia, Italy, and Austria agreed to forego this time-honoured right of mutual plunder; and the Emperor of Germany endeavoured to establish the same limitation in the war of 1870. The old maxim of war, of which the custom is a survival, has long since been disproved by political economy – the doctrine, namely, that a loss to one country is a gain to another, or that one country profits by the exact extent of the injury that it effects against the property of its adversary. Having lost its basis in reason, it only remains to remove it from practice.