§ MR. HORSFALL
said, he was not indifferent either to the difficulty or the responsibility of submitting to the House at that moment the Motion which stood in his name, and for many reasons he should have rejoiced if the duty had devolved upon the hon. Member for Rochdale (Mr. Cobden), who early in the Session had given notice of a similar Motion, but who had courteously given way upon hearing that he (Mr. Horsfall) intended to renew the Motion of which he had given notice last Session. It would be in the recollection of those hon. Members who took an interest in the subject of International Maritime Law, that last year, when he brought forward a similar Motion, the present unhappy state of affairs in America did not exist, and he could not contemplate then, any more than he contemplated now, provoking a discussion upon the relative merits of the American Union or of a Southern Independence. On the contrary he was glad of an opportunity of expressing not only his own feelings, but those of a large majority of his constituents, by saying that he cor- 1360 dially approved the strict line of neutrality that had been taken by Her Majesty's Government. His object in mooting the question was to show the very unsatisfactory condition in which International Maritime Law now was. In the early part of Last Session he had inquired of the noble Lord the Foreign Secretary what steps the Government had taken to carry out the recommendations of the Shipping Committee of the preceding year on that subject. The noble Lord frankly declared that the Government had done nothing, and left it to be inferred that they intended to do nothing. It would be readily supposed that such a reply was anything but satisfactory to those who took an interest in the subject; they felt that the recommendations—the unanimous recommendations—of a Committee of that House, which had sat during a whole Session, and had been presided over by the right hon. Gentleman the President of the Board of Trade, were deserving of greater consideration than had apparently been given to them. Without wearying the House with the past History of International Maritime Law, he would remind them that antecedently to 1854 there could be no question but that privateering was recognised as a principle of International Law; that neutral goods on board vessels belonging to subjects of a belligerent Power were liable to capture; and that goods the property of subjects of a belligerent Power on board neutral ships were also liable to capture. That state of law was felt to be a great hardship, and in that year his right hon. Friend the President of the Board of Trade, then unfettered by the restraints of office, brought forward the subject in one of those spirited speeches with which he sometimes favoured the House, and by his Motion sought to commit the House and the Government to the principle that a neutral flag should make neutral goods. His right hon. Friend did him the honour to ask him to second the Motion, which he did with pleasure, and at the same time he took the occasion to urge on Her Majesty's Government the necessity for the abolition of privateering. The noble Lord the Foreign Secretary stated that in a short time a public document would be issued declaring the views of the Government. In a fortnight from that time his right hon. Friend the President of the Board of Trade had the satisfaction of seeing an Order in 1361 Council issued, from which he would read an extract. The Order in Council of the 24th March, 1854, said—To preserve the commerce of Neutrals from all unnecessary obstruction, Her Majesty is willing, (or the present, to waive a part of the belligerent rights appertaining to Her by the law of nations. It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of War, and of preventing Neutrals from bearing the enemy's despatches, and She must maintain the right of a belligerent to prevent Neutrals from breaking any effective blockade which may be established with an adequate force against the Enemy's Forts, Harbours, or Coasts. But Her Majesty will waive the right of seizing an Enemy's property taken on board a neutral vessel, unless it be contraband of war. It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board Enemy's ships. And Her Majesty further declares, that being anxious, as much as possible, to lessen the evils of war, and to restrict its operations to the regularly-organized forces of the country, it is not Her present intention to issue letters of marque for the commissioning of privateers.That was the first step towards Liberal Legislation in regard to International Maritime law. Two years afterwards—namely, in 1856—the Conference took place at Paris. The Powers represented at that Conference were England, France, Russia, Prussia, Austria, Sardinia, and Turkey. The Conference agreed in these four Declarations—1. Privateering is and remains abolished.2. The Neutral Flag covers Enemy's goods, with the exception of Contraband of War.3. Neutral goods, with the exception of Contraband of War, are not liable to capture under an Enemy's Flag.4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the Enemy.The present Declaration is not and shall not be binding except between those Powers who have acceded or shall accede to it.It was right to say that nearly every other Power afterwards gave in its adhesion to the Declarations of Paris except the United States of America. Assuming the principles contained in those Declarations to be now acknowledged Maritime Law, the questions which naturally presented themselves were, what would be its effect in the event of War? What had been its effect in time of Peace? Shipowners and importers of produce were at least men of common sense, and they would not ship a single package of goods in a vessel liable to capture if they had the opportunity of shipment in a vessel not liable to capture. The operation of 1362 the law in the event of a war, say with France, would be that every British ship must be laid by in port. No shipper of goods would ship in vessels of belligerents when he had the power of shipping in neutral vessels. Every British ship would be laid by in dock while neutral vessels would obtain greatly enhanced freights. Worse still, British seamen would be drafted from British ships lying up, not into Her Majesty's Navy, but into neutral vessels, which could afford, and would afford, to pay a much higher rate of wages than had been, or would be, paid in the Royal Navy. Such would be the result of the present law in the event of war, and it was a most serious matter to the shipowner, the manufacturer, and the country at large. But what had been already the effect of the law in time of peace? Those who were acquainted with the shipping interest of the country knew full well what had occurred upon the mere rumour of war. A short time ago, when it was thought England might be involved in the war between France and Austria in Italy, however improbable the rumour might be, yet the moment it reached distant ports—such as Canton or Calcutta—a second-class American vessel was able to get freights at a 50 per cent higher rate than a first-class British ship could obtain. That was a very important point, and he was anxious to refer to the evidence of three witnesses examined before the Select Committee on Merchant Shipping. Mr. Allan Gilmour, one of the largest shipowners in the world, said that the stipulation of the Treaty of Paris would operate very prejudicially to British shipping if Great Britain were at war, and it was even then very prejudicial to the British shipowner. The very rumour of a war so enhanced the rate of insurance on goods by British ships that American and other foreign ships had a decided preference. Being asked to suggest a remedy, Mr. Gilmour said the only remedy was an international law which did away with. captures entirely; in other words, to place ships on the same footing with the goods they carried. The next witness was Mr. Beazley, an extensive shipowner of Liverpool, who entirely confirmed Mr. Gilmour's opinion. He was asked whether he had himself suffered by competition with a foreign flag. Mr. Beazley replied that he could give a very strong case. He had two ships in China in May, 1859. One 1363 had been built purposely to beat everything afloat. He said to the builder, "Build me a ship that will beat any mortal thing afloat, to bring home the first cargo of tea of the season." He had another ship at Foo-chow-foo. Just at that moment there was some talk about the Savoy and Italian business. There were two American ships at these ports, and the English merchants were so afraid to ship their tea in the British ships that they determined to ship in the American ships. They paid £ 2 a ton higher freight in those ships rather than take the British ships, because the Americans would not be subject to capture. In the case of England mixing herself up with any Continental law, Mr. Beazley stated that the law as laid down by the Convention of Paris threw at once all the trade into the hands of the Americans or neutral flags. He added, that the law should, in his opinion, go a step further, and let the ship be covered as well as the cargo. The last witness to whom he would refer was Mr. Graves, of Liverpool, formerly chairman of the Shipowners' Association, and Who was appointed a Royal Commissioner to inquire into lights and light dues. Mr. Graves entirely confirmed what had been stated by the previous witnesses, that in case of a European war British shipping would to a very great extent remain at home unemployed. He added, that we must either go back and reverse the policy that the flag covers the cargo, or we must go forward and place the ship under the same category as the cargo, and make both free from capture. Mr. Graves said he only regretted that the British Government had allowed one day to elapse without accepting the offer of the American Government to make all private property free from capture at sea.
It had been truly said that the question was of great national importance, not affecting merely our shipping, our commerce, or our manufactures; in that opinion he entirely agreed. It was a question of the most vital importance. What would be the case of our merchant ships in time of war if they were not laid up in dock? In case of war merchant ships required a convoy, and would not that convoy be much better employed in fighting the enemy? As a question of finance, then, the matter was of very grave importance, and one to which the Chancellor of the Exchequer, he thought, might direct his attention with advantage. He would not 1364 go into the subject as a question of humanity, though much might be said from that point of view. But it was said by many—and some of his hon. Friends near him were of that opinion—"Oh, make war as calamitous as you can, and you would then be able to bring it to a speedy conclusion." But he was happy to think that that was not the feeling of those whom he had the honour to represent, of the country, nor of Her Majesty, as appeared from the Order in Council which he had just read. Her Majesty there declared, that—Being anxious to lessen as much as possible the evils of war, and to restrict its operation to the regularly-organized forces of the country it was hot her intention to issue letters of marque.Neither was that the view taken by the Government who issued that Order, nor the view of the noble Viscount (Viscount Palmerston), whom, a few years ago, he, among others, cordially welcomed to Liverpool, and whom he, should be proud to welcome there again. Upon that occasion—it was the very year in which the Declaration of Paris had been signed—the noble Lord dilated upon that subject to the assembled merchants of Liverpool in glowing language, and made use of these words—Gentlemen, we are not inattentive to other interests besides those connected with the grand transactions of war. It has been a subject of great satisfaction to us to reflect that at the commencement of that conflict (the Russian war) the Government of England, in concert with that of France, made changes and relaxations in the doctrine of war which, without in any degree impairing the power of the belligerents against their opponents, maintained the Course of hostilities, yet tended to mitigate the pressure which hostilities inevitably produce upon the commercial transactions of countries that are at war. I cannot help hoping that these relaxations of former doctrines, which were established in the beginning of the war, practised during its continuance, and which have been since ratified by former engagements, may perhaps be still further extended; and in the course of time the principles of war which are applied to hostilities by land may be extended, without exception, to hostilities by sea, and that private property shall no longer be exposed to aggression on either side. If we look at the example of former periods, we shall not find that any powerful country was ever vanquished by losses sustained by individuals. It is the conflicts of armies by land, or fleets sea, that decide the great contests of nations, and it is perhaps to be desired that these conflicts should be confined to the bodies acting under the orders and directions of the respective States.Now he (Mr. Horsfall) desired no better testimony to the justice of his case than that Order in Council and that admirable 1365 speech. He had heard it said that naval officers would not like to be deprived of their prize money, and that there would be no encouragement to young men to enter the navy if the course which he was advocating should be adopted. But he would not insult our naval officers by supposing for one moment that they were actuated by such sordid and unworthy motives. He could speak for those whom he had the honour of knowing, and it was a libel upon them to say so. They all knew, that so far from there being a difficulty in obtaining officers for the navy, there were hundreds and thousands who could not get into it. But, even supposing that Her Majesty's naval officers were actuated by such sordid motives, was not prize money virtually given up in 1856, when the Declaration of Paris was agreed to? Well, they were told by many that there was no use in entering into treaties, because there would be an end of all treaties when war broke out. But what he would propose was not an ordinary treaty; it would be the same as the Declaration of Paris, it would not be abrogated by war; it was an agreement as to the mode in. which war should be carried on.
He would come, in the next place, to what appeared to many the most difficult part of the question—namely, the subject of blockade. He deeply regretted that be was absent, owing to indisposition, en Friday night, and that he had not had the privilege of listening to the interesting debate which then took place. Into the subject of blockade generally he would not enter, but he felt bound to say that the sentiments of those whom he had the bono into represent were in favour of respecting it. The next branch of the question was one with regard to which a great injustice had been done to America whenever it was discussed. They had been told that America would not give up the right of privateering; but what she had contended for from first to last was what he was contending for, that the ship and the cargo should be put upon the same footing. What was the statement of President Pierce when the Declaration of Paris was submitted to him? It was as follows:—The proposal to surrender the right to employ privateers is professedly founded on the principle that private property of unoffending non-combatants, though enemies, should be exempt from the ravages of war. But the proposed surrender goes little way in carrying out that prin- 1366 ciple, which equally requires that such private property should not be seized or molested by national ships of war. Should the leading Powers of Europe concur in proposing, as a rule of International Law, to exempt private property upon the ocean from seizure by public armed cruisers, as well as by privateers, the United States will readily meet them upon that broad ground.Therefore it was not fair to say that the United States would not give up the right of privateering. They would not give it up unless the great Powers of Europe were willing to take the still wider ground that all private property should be free. There was in another correspondence, which had just been published, a very appropriate letter from the noble Lord the Foreign Secretary to Lord Lyons, in which, in anticipation of the civil war which had since broken out in America, he proposed to invite both parties to act upon the principles which had been laid down in the 2nd and 3rd articles of the Declaration of Paris with respect to the rights of neutrals. It seemed that ultimately America agreed to adopt the very words of the Declaration of Paris, but subsequently a letter from Lord Lyons to Earl Russell stated—Mr. Seward called upon me the day before yesterday, and asked me to give him a list of the Powers which have acceded to the Declaration of Paris on maritime law. He said that he had observed a list of those Powers in your Lordship's despatch to me of the 18th of May, which I had left with him for a few days. I readily agreed to send him the list. He went on to tell me that he was endeavouring to disentangle a complication which had been produced by Mr. Dayton at Paris. Mr. Dayton had, he said, been instructed to state to the French Government that the Government of the United States preferred the proposal of Mr. Marcy, by which private property would be altogether exempted from capture, but that, nevertheless, they were willing, if necessary, to accede at once to the Declaration of Paris 'pure and simple,' and to postpone the discussion of Mr. Marcy's proposal to a more propitious moment.Then, on the 29th of July, 1861, Mr. Adams wrote to Earl Russell—Mr. Dayton informs me that some time since he made a proposal to the French Government to adopt the Declaration of the Congress at Paris in 1856, with an addition to the first clause, in substance the same with that heretofore proposed by his predecessor, Mr. Mason, under instruction given by Mr. Marcy, then the Secretary of State of the United States; to that proposal he received an answer from the French Minister of Foreign Affairs declining to consider the proposition, not for any objection entertained against it, but because it was a variation from the terms of the original agreement, requiring a prior reference of it to the other parties to that convention. This answer does not, in his opinion, make the ultimate acceptance of his addition impossible, 1367 and he does not feel as If he ought to abandon the support of what he considers as so beneficent an amendment to the original plan, until he has reason to despair of success. He has therefore requested to know of me whether I have reason to believe perseverance in this direction to be fruitless. For my part, I entirely concur in the view entertained by Mr. Dayton of the value of this amendment; I also know so well the interest that my Government takes in its adoption as to be sure that it would refuse to justify a further procedure on our part which was not based upon a reasonable certainty that success is not attainable, at least at the present moment. I have therefore ventured to state to Mr. Dayton my belief that I have that certainty; I have therefore mentioned to him what I have likewise communicated to the proper department of the Government of the United States—the fact that in the last conference I had the honour to hold with your Lordship, allusion having been made to the amendment of Mr. Dayton, I said that that amendment was undoubtedly the first wish of my Government, and that I had instructions to press it if there was the smallest probability of success; but that I supposed this matter to have been already definitely acted upon: to which I understood your Lordship to signify your assent, and to add that I might consider the proposition as inadmissible.He was merely showing that the Foreign Minister refused again the proposal of the American Government that all private property on the ocean should he protected. Earl Russell, in a letter to Mr. Adams, confirmed that representation, saying—As far as I am concerned, this statement is perfectly correct.It appeared, then, that the American, French, and English Governments agreed to accept the declaration of the United States in accordance with the Paris Declaration, but that Earl Russell thought it necessary to propose to add the following words in signing the agreement with the United States:—Her Majesty's Government does not intend thereby to undertake any engagement which shall have any bearing, direct or indirect, on the internal differences now prevailing in the United States.He was not saying whether the noble Earl was right or wrong in insisting on these words, as Earl Cowley had previously informed Earl Russell by letter that—Mr. Dayton hardly concealed from M. Thouvenel that the object of his Government in agreeing to sign the Convention was to force the Western Powers to treat the Southern privateers as pirates, arguing that, as the Government of Washington was the only Government recognised by the Foreign Powers, the Southern States must, as far as Foreign Powers were concerned, be subject to the consequences of the acts of that Government.Again, on the 23rd of August Mr. Adams, in writing to Earl Russell, said— 1368The Government of the United States are at last prepared to sign and seal an engagement, pure and simple, and by so doing to sacrifice the hope of attaining, at least for the present, an improvement of it, to which they have always attached great value. But, just at the moment when their concurrence with the views of the other Maritime Powers of the world would seem to be certain, they are met with a proposition from one, if not more of the parties, to accompany the act with a proceeding somewhat novel and anomalous in this case, being the presentation of a written declaration, not making a part of the convention itself, but intended to follow the signature, to the effect that, 'Her Majesty does not intend thereby to undertake any engagement which shall have any bearing, direct or indirect, on the internal differences now prevailing in the United States.' Obviously a consent to accept a particular exception susceptible of so wide a construction of a joint instrument, made by one of the parties to it in its own favour at the time of signing, would justify the idea that some advantage is, or may be suspected to be, intended to be taken by the other. The natural effect of such an accompaniment would seem to be to imply that the Government of the United States might be desirous at this time to take a part in the Declaration, not from any high purpose or durable policy, but with the view of securing some small temporary object in the unhappy struggle which is going on at home. Such an inference would spoil all the value that might be attached to the act itself. The mere toleration of it would seem to be equivalent to a confession of their own weakness. Rather than that such a record should be made, it were a thousand times better that the Declaration remain unsigned for ever. If the parties to the instrument are not to sign it upon terms of perfect reciprocity, with all their duties and obligations under it perfectly equal, and without equivocation or reservation of any kind on any side, then it is plain that the proper season for such an engagement has not yet arrived. It were much wiser to put it off until nations can understand each other better.He was prepared to say that it was better that the American Government did not sign the Declaration with the addition of the proposed words, because an opening was now left for the British Government to consider the matter in a somewhat different light from that in which they seemed to have regarded it in the course of the correspondence from which he had quoted, and in a future correspondence the question discussed might be that all private property should be respected at sea. He had addressed the House at greater length than he had intended, but he had been anxious to state as clearly as he could the view which he believed to be generally entertained by the commercial community. He was quite aware of the jealousy with which any Motion of the kind was viewed by the Executive Government, but he trusted the noble Viscount would excuse him if he ventured to 1369 refer once more to the noble Viscount's speech, the concluding observations of which constituted almost a direct invitation to bring the subject before the House. The noble Viscount, on the occasion to which he had already alluded, ended his speech in the following terms:—Gentlemen, the Government always feels deeply indebted to the great commercial communities which are kind enough to impart to us, from time to time, their suggestions for the remedy of existing evils. We know well that no Executive Government can be so perfectly informed of all the detailed operations of commerce as to be able, without such assistance, to devise those measures which may be best calculated to set free the industry of the country, and to give the greatest development to commercial enterprise.He (Mr. Horsfall) quite concurred in the views of the noble Viscount, and it was in reliance on his express declaration that he had ventured to trespass upon the attention of the House. He was quite aware that the views which he submitted for their consideration had been feebly and imperfectly expressed; but he respectfully and with confidence asked the House to affirm the Resolution which it was now his duty to move. He asked it in the name of the commerce of the country; he asked it in the name of civilization, humanity, and justice.
Motion made, and Question proposed,
That the present state of International Maritime Law, as affecting the rights of Belligerents and Neutrals, is ill-defined and unsatisfactory, and calls for the early attention of Her Majesty's Government.
THE ATTORNEY GENERAL
said, that the hon. Member had supported his Resolution in an able and temperate speech, though he had expected that he would have raised a more general discussion on the existing state of international law as affecting the rights of neutrals. The hon. Member in his Resolution had described the existing state of the law to be both ill-defined and unsatisfactory His arguments, however, had been mainly addressed to the policy of the law, and there could be no doubt that the question of policy was one of great importance; but the hon. Gentleman appeared to overlook the fact, that whatever might be the opinions of Members of that House, or even of the Government, on the policy of the law, it was impossible for any one State effectually to interpose for an alteration of the law without the concurrence of other States. It would be obviously 1370 worse than useless for Great Britain to act towards other nations upon any code, however approved of here, until that code had received the approval and assent of other nations affected by it. Again, he could not agree that the law was ill-defined, for he should be able to show that it was well understood, and, right or wrong, was well and intelligibly expressed. The observations of the hon. Member on that subject left him but little to say. He had stated correctly, with one exception, how the law stood previous to the Russian war. It was true that privateering was an admitted belligerent right, and that enemy's goods under a neutral flag were liable to capture and confiscation. But the statement was not accurate that neutral goods under an enemy's flag were also liable to capture and confiscation. Probably the hon. Gentlemen had been led into error by the terms of the order in Council issued by Her Majesty at the commencement of the war with Russia. That document set forth that Her Majesty was willing to waive the right of seizing enemy's property taken on board a neutral vessel, unless it was contraband of war; and went on to say that it was not Her Majesty's intention to claim the confiscation of neutral property not being contraband of war found on board enemy's ships. It was, no doubt, just and expedient to issue such a declaration, plainly apprising neutrals whose interests were concerned of the conditions on which this country intended to carry on the war; but the hon. Member was wrong in the inference he had drawn that previous to that date, by well-established international law, the goods of a friend on board the ship of an enemy were liable to capture and confiscation. The law on this matter was well-defined and well understood. So long ago as 1753 the law of nations as affecting the goods of neutrals had been declared in this country on the highest authority. Sir George Lee, Judge of the Prerogative Court, Dr. Paul, the Advocate General, Sir Dudley Ryder, the Attorney General, and Mr. Murray, afterwards Lord Mansfield, the Solicitor General, laid down the following propositions:—First, the goods of an enemy on board the ship of a friend may be taken. Secondly, the lawful goods of a friend on board the ship of an enemy ought to be restored. Thirdly, contraband goods going to the enemy, though the property of a friend, may be taken as prize, because the sup- 1371 plying the enemy with means which enable him better to carry on the war is a departure from neutrality.The hon. Gentleman had next alluded to the Declaration of Paris. That Declaration would he found to involve four propositions, two of which had reference to the ancient state of the law, and the other two bore upon the alterations which were then introduced. The first point of the Declaration, that "privateering is and remains abolished," was an undoubted waiver of the belligerent right to issue letters of marque. The second proposition, that, with the exception of contraband of war, the neutral flag covered enemy's goods, also introduced a new rule of maritime law. But the third and fourth propositions, that neutral goods, with the exception of contraband of war, were not liable to capture (meaning, no doubt, capture and confiscation) under an enemy's flag, and that blockades in order to be binding must be effective, were merely statements of the antecedent law. The hon. Member's speech, in fact, contradicted that portion of his Motion which alleged that the present state of international law was ill-defined, because he himself had clearly defined and expounded what the law was with the single exception referred to. Whether the law were politic or impolitic, it was not involved in any doubt or obscurity. As to the policy of the law, or of the proposed modification, he need say but little, because other Members who would follow in the debate might be better able to deal with that part of the subject. The hon. Member, however, said that in consequence of the adoption of the Declaration of Paris an advantage would be given to neutral carriers over the ships of a belligerent. No doubt, such would be the case; but he did not agree with the hon. Member that the effect must be entirely to put a stop to the trade of a belligerent, seeing that where the belligerent was a strong naval Power, and especially where she was mistress of the seas, her fleet, as in former wars, would effectually protect her mercantile marine. To a Power which was weak at sea the results pointed out by the hon. Gentleman might doubtless follow. But we were and always hoped to be the stronger Power; and he did not think the country need shrink from the task of annihilating the commerce of the enemy, and at the same time of protecting her own. The concession made by the 1372 Declaration of Paris in favour of enemy's goods being protected by the neutral flag was, as its terms denoted, a concession desired by and made to neutrals. The policy of that change he would not discuss; indeed, it would be rather late to do so; and he understood the hon. Member to contend rather that this country ought to go further and give universal protection than to find fault with its having been a party to that arrangement. But the universal exemption from capture which the hon. Member desired, would not be a concession to neutrals at all; neutrals did not desire it; they would rather continue in possession of that actual or supposed monopoly which the hon. Member had pointed out. Such a change in the law as would, enable an enemy in time of war to carry in safety between his own ports and the ports of neutrals, or the ports even of the other belligerent, his own goods in his own ships, would not only go beyond anything which had been proposed and discussed in modern times, but would very much exceed any relaxations in the rigour of the Maritime Code which, as far as he was aware, had been suggested by any of the writers of admitted authority on international law. He did not say that because a proposition was novel it was not true or not entitled to serious consideration; but the subject was certainly one calling for much deliberation, especially when it was remembered that nothing could follow from a mere expression of opinion by that House. Whatever was done must be accomplished not by a single Government or Cabinet, but by the concurrence of all those nations which were, or aspired to be, powerful at sea, and which had consequently an interest in the subject in common with ourselves. He had stated, that the doctrine advocated by the hon. Gentleman was novel, but he would so far correct himself as to say, that it appeared from a statement by Benjamin Franklin, that in a treaty entered into between the United States and Prussia, in 1785, an article was inserted in accordance with what Franklin called his "Quaker notions," it being agreed that the merchant ships of the contracting parties should not be liable to capture; but that article was not inserted in the renewed treaty in 1799 between the same Powers, and certainly from that time down to the present he was not aware of any serious proposition having been made between any two 1373 nations thus to mitigate the rigours of the maritime law. He had thought it necessary to say but little on the question of policy in the present state of the discussion, but so far as the question of law was concerned, the hon. Gentleman had relieved him from the necessity of making any lengthened remarks. He had, in point of fact, abandoned one part of his proposition; and had shown no good reason for calling upon the Government to take any action on the other.
§ MR. LIDDELL
said, that in rising to make a few observations, he hoped that he should not be accused of the presumption of attempting to follow the legal argument of the hon. and learned Member who had just sat down. Of course he could not pretend to cross swords with him upon legal subleties, or in reference to what was the law, but he might be permitted to notice that he said that he had been culled on not to defend the expression but the policy of the law. He apprehended that it would have been more to the taste of the hon. and learned Gentleman to have dealt with the letter of the law, than to find himself called upon to defend a policy which, as it bore at present upon certain national interests, was indefensible. The hon. and learned Member, however, went further, and complained that his hon. Friend (Mr. Horsfall) had limited his argument to that portion of this great question which had more immediate bearing on the shipping interest. He (Mr. Liddell) agreed with him in that regret; but when the hon. and learned Gentleman went on to state that the maritime law was not involved in any doubt or obscurity, he would ask him whether he thought that the law of contraband was settled at the present moment? Was it not rather involved in doubt and obscurity? And so of the law of blockade, was not that obscure and doubtful? He would probably be called to order if he alluded to recent debates in that House, but there were rumours out of doors that there were, at that moment, blockades with respect to the legality of which doubts existed. Was not also the question of what was and what was not a privateer a matter of discussion among the learned? Well, all these questions would most properly form topics of discussion in a congress, should one be called for the purpose. Doubtless there were conflicting feelings on the subject of international law. The 1374 remembrance of what they had done in past days in support of this naval supremacy weighed much on the mind of England; but the rights of civilization and humanity would inevitably be brought into conflict with the special interests of this country. He did not wish to deal with the subject under discussion on Utopian notions, but rather on the principles of common sense and what he believed to be the true interests of the country. By the declaration of Paris (by which for the first time England admitted that principle which had been contended for for many years by various foreign nations and especially by the Americans, that free ships should make free goods) they no doubt made a great concession. They virtually permitted the enemy to carry on his trade during war, provided he did not do it in his own ships. That concession necessarily told most against the country with the greatest mercantile marine. In the event of our going to war our commerce must be carried on, not in our own ships but in the vessels of neutrals; and our marine would be depreciated in value to an extent which could not be estimated, and it would probably be reduced during war to a state of total inactivity. At the very moment when we had with difficulty constructed a naval reserve to supply the navy, the prospect of receiving higher wages abroad held out to every man in that reserve a direct premium to leave our service and enlist under a foreign flag. Such was the necessary result of the position in which we now stood. The noble Earl the Foreign Secretary, who had of late conducted affairs with so much ability and with satisfaction to the country at large, had thus spoken of the declaration of Paris, no longer ago than July, 1857. A debate having arisen on a Motion by the hon. Member for Sunderland, the noble Earl (Earl Russell) said—I am afraid that we must be bound by the declaration. I am afraid that the consequences are so serious as to show that such a declaration was very imprudent, and I cannot but agree with the hon. Gentleman (Mr. Lindsay), that England ought to preserve her maritime superiority * * * * The whole matter is most unsatisfactory and most grave in its bearing upon our maritime supremacy The state of this question is to me very alarming; but I do not see that a breach of faith would at all mend our position. [3 Hansard 146, pp. 1490–1491.In that view he perfectly agreed with the noble Lord, but it was a position we had 1375 taken in the face of Europe, not with the consent of one, two, or three Powers, but of almost all the Powers of Europe, who, if we attempted to recede from that position, would inevitably form themselves into a combination to defend the principle, and we should see ourselves ranged single-handed against a long list of nations. We should see a new "armed neutrality" more powerful than its predecessors. If we were at war with a European Power, America would remain neutral. She always refused to mix herself up in European politics, and in the event of our being at war she would monopolize the carrying trade of this country, as she did during the last war with France. Then came the question, as we could not recede from our present position, what were we to do? He replied, that having abandoned our former position for which we had always fought so stoutly, we ought to go on and seek to derive the full benefit which might be presumed to spring from the concession we had made. It was a concession made by a stronger Power to a weaker. As a great authority on the matter had remarked, the stronger Power could always protect its own commerce; it was only the weaker that required the treaty protection. We should then proceed to the adoption of a course of amelioration, of mitigation of the asperities of war, which pressed not on the governing classes who were responsible for the war, but on their unoffending subjects, the shipowners and merchants engaged in commerce. It was for the interests of England that we should carry on our commerce during war in our own ships; and he thought we should take steps to relieve the shipowner from the ruin which overhung him at the present moment. The importance of the subject, however, was not confined to the shipping interest. England was the workshop of the world. She was dependent upon the raw produce of foreign countries, for she did not grow the staples of her manufactures herself. England had agreed to allow trade to be carried on by neutrals in time of war. He wanted to go further, and say, "We will carry it on in our own ships." Why, he would ask, should they take care solely of the interests of the neutral? Why not, on the contrary, leave the neutrals to take care of themselves? We had to maintain a most severe and sometimes unequal contest with foreign nations for our ma- 1376 nufacturing superiority, and anything which tended to their advantage might most materially turn the scale against us. Who had given the greatest impulse to the manufactures of New England? It was England, by her mistaken policy in going to war with America, and her absurd replies to the Berlin decrees of Bonaparte. It was England, by her retaliatory Orders in Council. That course deprived her of £ 11,000,000 to £ 12,000,000 of exports a year, which were conveyed by Americans not only to their own but to foreign markets. By way of retaliation to the Berlin decrees, England issued Orders in Council, not only inconsistent with the laws of nations, but which arrayed against her every friendly Power. Coming down a little later, what did they do in the Russian war? They went to war with Russia in 1854. The first thing they did was to blockade the Baltic with a gigantic and expensive fleet, under pretence of distressing the enemy by cutting off the supplies which she furnished of raw material. They took a number of her ships, belonging chiefly to the poor inhabitants of the Baltic seaboard, and laden with articles of necessity to them, burnt an immense quantity of property which belonged chiefly, he believed, to English owners, and sold the ships for a miserable sum of money. These were deeds that no English sailor was proud of. But did they stop Russian commerce? Why, the whole of the linseed and the flax, and the tallow, and the hemp, the raw materials from Russia which England most needed, were conveyed through neutral ports and arrived in this country at enhanced prices, which the consumer had to pay in consequence of the circuitous route which they had been obliged to travel. The doctrine which lay at the root of their present maritime law was, that a strong belligerent should, by means of its supremacy at sea, harass and weaken the enemy; but by admitting foreigners to the colonial and coasting trades, they had rendered it impossible for them in future to act upon that principle without, in time of war, handing over the whole of their commerce to the ships of other countries. For all these reasons they must go forward and recognise the principle for which his hon. Friend had contended—the granting of immunity to private property at sea. It was not only America that had declared in favour of 1377 that principle; Russia, France, and the Chambers of Commerce of Hamburgh and Bremen, which might be supposed to represent the feeling of Germany, had all expressed their willingness to accept it; and it must be presumed that Holland, from which State first emanated the demand that free ships should make free goods, would not refuse to accede to it. He did not wish to precipitate the House into a hasty decision on international maritime law, but he would suggest that a Congress should be called for the purpose of discussing the questions which had been adverted to, and of ascertaining the views and feelings of the various Powers. Of course, each country ought to enter such a Congress with a desire to promote, not any special interest of its own, but the general welfare of mankind and the progress of commerce. England might initiate the proposal of a Congress with an evident sincerity and good faith which no one could doubt, and with every prospect of success. By the Declaration of Paris, privateering had been condemned as piracy, paper blockades abandoned, and the sanctity of the neutral flag recognised. They had relinquished the substance; and let them therefore seek no longer to retain the shadow, and thus reject the opportunity of protecting from wrong and robbery the property of the peaceful trader.
§ MR. BAILLIE COCHRANE
said, he gathered from the discussion that there was a general opinion that the Declaration of Paris in 1856 was a great blunder. ["No," and "Hear, hear!"] That was certainly the impression conveyed by the speeches of his hon. Friend and of the hon. and learned Gentleman opposite. But it was a singular argument that because we committed a mistake in 1856 we were bound to go on in the same course of error, and to take another step towards abandoning the supremacy of England upon the seas. His principal object in rising, however, was to remove an erroneous impression from the mind of his hon. Friend who had just sat down with regard to the opinion of the noble Earl the Secretary for Foreign Affairs upon the subject. Now, he (Mr. B. Cochrane) wished to refer to a speech of the noble Earl's which bore exactly on the point under discussion. It was delivered on March 9, 1857. In that speech he said—Since that time the Secretary of State of the United States has proposed to go a step further 1378 than this treaty—that Great Britain should agree that all merchant vessels should be free from capture during time of war. It appears to me, I own, that although this proposal carries with it an air of philanthropy, it is one which would not tend to prevent war, and which, if it did not tend to prevent war would greatly cripple the energies of this country in time of war. It is obvious, in the first place, that one reason why foreign nations are unwilling to go to war with this country is, that they feel that their commerce is sure to be seized, and that all the valuable property which they may have at sea is sure to fall into the hands of our cruisers as soon as war is declared. If, on the contrary, they were sure that all their merchant vessels would be allowed to pass in safety, one great reason for remaining at peace would be taken away. … My impression is, that if we were to agree to that proposal, our being a great naval Power would be of no use to us in time of war."—[3 Hansard, 144, p. 2084]The noble Earl was followed by the late Sir Charles Napier, who expressed the hope that this country would not abandon its maritime rights by allowing other nations to carry on their commerce without restriction during a period of war. It was universally agreed that the Declaration of Paris was unfortunate; and how it could have happened that the Earl of Clarendon should have been allowed to perpetrate such a tremendous blunder, striking as it did at the naval supremacy of this country, without Parliament having the opportunity of giving an opinion, seemed to him perfectly incomprehensible. The hon. Gentleman who had made the Motion talked of war as though it was to be carried on in kid gloves. Why, all their recent inventions were opposed to such an idea. They built Warriors and Black Princes, and constructed Armstrong guns and scientific rifles, and they bad armed the whole country; and the policy of the country was opposed to the view of the hon. Gentleman. The third article of the Declaration of Paris provided that neutral goods, except contraband of war, should not be liable to capture under an enemy's flag. Now, what would be the effect of that on their naval officers? He did not mean with regard to prize money; but there was another view which had not been considered. It was not an uncommon thing during war for British officers, after capturing a vessel to burn her to avoid weakening their own crews. That was an energetic mode of carrying on war. But under the new Declaration of Paris, if the ship happened to contain £ 100,000 worth of neutral goods, the officers would not venture to destroy the 1379 ship, as they might he liable to action for the value of those goods. It was to their naval supremacy that they owed the development of their commerce, and the adoption of the Motion of the hon. Member for Liverpool would go far to deprive them of that advantage. After all, however, he believed that in the event of war they would not allow themselves to be trammelled by such declarations. What took place in the last great war? In 1804, before the Declaration of war with Spain, Lord Nelson issued the following orders to the captains of his fleet:—Whereas I judge it proper under the present uncertain state of affairs between Great Britain and the Court of Spain, that all Spanish ships and vessels of war, as well as the trade of. His Catholic Majesty shall be detained until further orders; you are hereby required and directed to detain all Spanish ships and vessels of war, or merchantmen (vessels laden with corn excepted), belonging to the subjects of His Catholic Majesty, which you may fall in with, and send them either to Gibraltar or Malta, as circumstances shall render necessary.He was pursuaded that, under like circumstances, the same course would be adopted now. The Declaration of Paris was much to be regretted, but he should regard the adoption of the Motion of the hon. Member for Liverpool as a still more unfortunate event.
§ SIR. GEORGE BOWYER
said, he thought the question lay in a very narrow compass. This country being a great naval power, it was perhaps desirable that the rights of belligerents should be as widely extended as possible; therefore it was very questionable whether it was altogether prudent for England to concur in the Declaration of Paris, but that Declaration was an accomplished fact, and it would be little better than a waste of time to discuss it further. The real question before the House might be shortly stated. When a man marched at the head of an army into a country and conquered it, he did not interfere with private property. The rule of international law put him in possession of the government of the conquered country, but it did not entitle him to interfere with the rights of private property. It was difficult to understand why the same rule should not prevail with respect to naval warfare. The Roman Emperor said in the Pandects, "Egoterræ dominus, lex maris," which meant that the sea, as the common highway of nations, was not the property of any par- 1380 ticular country. According to the analogy of terrestrial war, the conqueror of the sea, if he might be allowed the expression, could acquire only the sovereignty of the law, for the law was the lord of the sea. How could that sovereignty enable him to violate the rights of private property? It was quite clear that a belligerent had no more right to seize a merchant ship on the sea than to take away the property of the people of the country which he invaded and conquered in war. England, as a great naval Power, might have been expected to maintain the rights of belligerents to the utmost; but under the Declaration of Paris trade might be carried on by neutrals to any extent, and therefore he thought we could not do better than accept the principle that private property should be respected on sea as well as on land.
SIR GEORGE LEWIS
Sir, the question which has been raised to-night is of first-rate importance. It would be of great importance to a country which has not a powerful national navy and a vast mercantile marine, but to England, situated as she is, it is of paramount importance that this question should receive a right decision when discussed in Parliament. I trust that, whatever may be the result of this debate—whatever may be the fate of the Motion submitted by the hon. Member for Liverpool—we shall not come to any precipitate conclusion, or one of which we may hereafter have occasion to repent. The hon. Gentleman has proposed, "That the present state of International Maritime Law, as affecting the rights of belligerents and neutrals, is ill-defined and unsatisfactory, and calls for the early attention of Her Majesty's Government." The terms of his Motion are as general as it is possible to frame them. They bring under review the whole state of international maritime law, as affecting the rights of belligerents and neutrals. Hence they involve the question of privateering; they involve the question of the neutral flag covering the enemy's goods. [An hon. MEMBER: That was settled by the Declaration of Paris.] I am aware that the question was settled as far as this country is concerned, but it has been argued in the course of the debate that it ought to be unsettled. I am merely speaking of the general terms of the hon. Member's Motion. But the hon. Member, instead of making his speech co-extensive with 1381 the terms of his Motion, directed his arguments to one single point—namely, that the enemy's flag should coyer the enemy's goods. That is the whole extent of the speech which he made, and of the recommendation which he offered to the House.
SIR GEORGE LEWIS
Precisely—that the private property of the enemy should not be taken out of the enemy's ships. By the Declaration of Paris neutral goods are sacred under the enemy's flag. [Mr. BRIGHT: And the ship also.] Very good; the argument is that the ship should be sacred as well as the goods under the enemy's flag. Such is the proposition of the hon. Member for Liverpool, and, that being so, it seems to me that the more correct course, as far as this House is concerned, would have been for the hon. Gentleman to move an Address to the Crown, requesting Her Majesty to use her influence with foreign Powers for the purpose of making the principle that the enemy's flag should cover the enemy's ship and goods a maxim of international maritime law. That would have brought the question which the hon. Member has argued fairly under the consideration of the House; but at present any hon. Gentleman who thinks, for instance, that privateering ought to be continued, or that the clauses of the Declaration of Paris ought to be repealed—who, in short, entertains views entirely opposed to those which have been advanced to night—might with perfect propriety say to the hon. Member for Liverpool, "I do not agree with your speech, but I approve your Resolution, and therefore shall vote for it." It seems, therefore, to me, that if the hon. Gentleman succeeded in carrying his Resolution, he would not necessarily give effect to his opinions. The Government would say, "We are not bound by the speeches of individual Members; we must look to the general terms of a Resolution, and act accordingly." Therefore, I say, if he wished to establish this principle, that the ship and goods of an enemy are to be respected in war by the belligerent, he ought to have embodied that proposition in a distinct Resolution and submitted it to the House; he would then have raised a distinct issue on which we might have acted. But I must say that the proposition which he has submitted to us 1382 is—not unfair, but most inconvenient. I have no doubt he thought it was a convenient mode of raising the question, and perhaps, when he came to embody his principle in terms, he was afraid to look it in the face, and therefore preferred to take refuge in generalities; but I must repeat, I can hardly conceive a more inconvenient course than that which he has adopted in bringing a very important principle under the consideration of the House.
Sir, there have been many occasions on which the rights of neutrals and belligerents with regard to maritime war have been agitated, in Europe. In the first place there was the celebrated armed neutrality of 1780; but the principles laid down in that year by Russia and concurred in by other Powers were entirely confined to the neutral flag covering enemy's goods, and also mainly, I think, to the question of blockades; but I feel confident, that if any Gentleman will examine the negotiations, the conventions, and treaties of that period, he will not find a single trace of the principle that a belligerent is not to be permitted to capture the ships or goods of his enemy. Then there is the armed neutrality of 1800, when the same question was again revived, and again there is a total absence of such an assertion; and the reason is perfectly obvious—the armed neutrality of both those years was a representation of the interests of neutrals. Neutrals have no interest in the principle which the hon. Member recommends to the acceptance of the House. One hon. Gentleman, indeed, who spoke, treated this question as one involving the interests of neutrals; but it is impossible to conceive a greater mistake. Neutrals, so far as they have any interest, have an interest directly the opposite. If they wished to become the carriers of the world, they would naturally wish that the mercantile marine and goods of the belligerents should be exposed to risk. Therefore, I say, neutrals as such, have no interest in the question.
Then there is another reason why, on the occasions to which I have referred, the armed neutrality did not start this question. Those who advised that state of affairs were persons acquainted with the principles and elements of international law; but I must be permitted, with great respect to the hon. Gentleman, to say that his speech seemed to overlook the most 1383 fundamental doctrines of international law, because you may make a compact with a neutral state that in time of war you will respect the neutral flag. For instance, we have now a compact with France and other continental Powers that we will act on the principle that the neutral flag covers the enemy's goods, so that if we were to seize American goods under the French flag, we should be guilty of a violation of our engagements with France. Therefore by international law you can make a valid engagement with respect to the principle that the neutral flag covers enemy's goods; but when you go to war with a nation, war puts an end to all treaties and engagements in the nature of a treaty. Therefore if we had unfortunately, a short time ago, found ourselves involved in hostilities with the United States, and if we had previously had a treaty with the United States recognising the principle that belligerents were to spare one another's mercantile marine, the very act of war would have put an end to that treaty, and it would have been in the discretion of either Power whether or not they would act on that principle. Suppose you make such an engagement, how are you to rely on the honour of a belligerent observing it, because by uninterrupted practice or by the concert of all civilized nations you may alter all the principles of international law? It is conceivable for example, that by the general agreement of nations the principle for which the hon. Gentleman contends might be established, but it is inconceivable that a treaty between two belligerents which is in derogation of the general principles of international law should bind them during the continuance of war. An hon. Gentleman referred to the Declaration of Paris; he said it was not a treaty but a declaration, and therefore it must be binding in the event of war. Now, I entirely dispute that inference or statement. I presume he means to say that it is binding in respect of neutrals in time of war. No doubt we are bound in respect of France or Russia if we are at war with the United States; but it is an absurdity to suppose, that if we were at war with France or Russia, it would have any binding effect upon us, except in regard to our honour. All I Bay is, it is not binding by international law. We are not bound to assert extreme belligerent rights, but without any such treaty we might say we will not capture 1384 the mercantile marine of an enemy. The hon. Gentleman the Member for Honiton (Mr. B. Cochrane) spoke with great censure of the Declaration of Paris, and said we were in such a position, that we must either advance or recede—that our present position was untenable. We had made a declaration restrictive of our power of carrying on a maritime war, and we should find it necessary to violate that engagement. He forgot that before the Crimean war by proclamation we modified our belligerent rights. The hon. Member for Liverpool read from the Proclamation the passages which were equivalent to the Declaration of Paris—therefore when the war was ended and the question of neutral rights was raised in Paris, it seemed the proper and natural course for our Plenipotentiary to agree to this principle, which had been consecrated by the Executive Government at the commencement of the war, of which Parliament had full notice, and to which Parliament had at no time objected. If it had been thought that the principle that the neutral flag shall not cover the goods was essential to the effective conduct of maritime war by this country, why was it abandoned at the commencement of the Crimean War, and no voice raised against it during the continuance of that war? The hon. Gentleman overlooked that important element.
The hon. Member for Northumberland (Mr. Liddell) did not altogether seem to approve of the modus operandi of the hon. Gentleman who made this Motion; he seemed to be aware that there was some difficulty in establishing a binding engagement between two belligerents; but with respect to the case of America the hon. Member said that the Government of the United States is willing to assent to this principle combined with certain others. But if the United States of America approve so highly of the principle of not capturing enemy's ships and goods, why do not they establish that principle with respect to the Southern States? Here is a fine opportunity for the Government of Washington, to act on that principle. There is a war actually waging in which they are involved, why not act on that principle at once? No doubt it is said that the Southerners are rebels, but in the exchange of prisoners and in the matter of the blockade they have, after much unwillingness on the part of the United States Government, 1385 been treated in all respects as belligerents. If that be the case, why does not the Government of Washington show its forbearance in not capturing enemy's goods? I strongly suspect that the exasperation which exists between those two contending Powers renders any such forbearance utterly impracticable. The hon. Member for Northumberland, however, seems not altogether to trust to this plan of mutual forbearance by belligerents during war, and he proposes that England should call a Congress. [Mr. LIDDELL: Invite a Congress.] Well, that we should invite the nations of Europe to meet in Congress, and that we should submit to this Congress the question raised in to-night's debate. But, then, he annexed a condition which, I am afraid, if strictly fulfilled, would render the convening of the Congress a somewhat remote event, because he said that it was a necessary condition that the parties composing the Congress should not be actuated by any special or national interests, but have solely in view the general good of mankind. My little acquaintance with the history of Congresses does not lead me to anticipate that it is extremely easy to form a Congress upon that condition, and I am afraid if we wait until a Congress be formed in which the members are wholly regardless of the interest of their own respective nations, and are devoted to promoting the universal happiness of the world, the meeting must be postponed until the Greek Kalends. The hon. Member's proposal, no doubt, is a philanthropic and well-meant proposal, but it only shows the difficulties with which the subject is encumbered, and the necessity of further consideration before the House can, with any propriety, agree to the adoption, I will not say of the hon. Member's Resolution, but of a Resolution embodying the result of his arguments. As to the Resolution, I really do not know that I feel any difficulty in saying that any branch of international law is ill-defined, because every branch must be ill-defined, as it is not law laid down by any Legislature, and is only to be collected from the decisions of the courts of different countries, and the writings of different text writers. In a certain sense international law may always be said to be ill-defined. At the same time I really believe, that if any part of international law is better defined than another, it is the question relating to procedure in seizing different classes of goods belonging to 1386 different nations, and particularly since the Declaration of Paris.
There is another part of the question, upon which the hon. and learned Baronet the Member for Dundalk (Sir George Bowyer) much insisted, and which I know has been often brought forward in discussion. It is mentioned in an able pamphlet, which I have no doubt many hon. Members have read, and unless it receives examination, is calculated to make an impression on the mind—I allude to the statement that we ought to assimilate the laws of maritime to the laws of land warfare. If the House will permit me, I will examine for a few moments what weight is due to that argument. It is said, in the first place, that all private property is spared in land warfare. I must begin by meeting that assertion by a most formal denial. I say that by the laws of land warfare, as recognised by the most civilized nations, and according to the most recent practice, private property is not respected. It is respected only so far as it suits the present convenience of the belligerent armies. I believe there never was an army under more strict discipline, in which the commander was less disposed to permit excesses by the soldiery, or in which there was a greater disposition to spare the country which was the theatre of the war, than the Duke of Wellington's army during the Peninsular War. What was the practice of that army? When they arrived at a village at night, the proper officer told off a certain number of houses, the roofs were stripped off, and the timber was used as firewood for boiling the men's suppers. That certainly was not very remarkable respect for private property. Such are the necessities of war. The army must have food, and the food must be cooked. They cannot carry fuel with them; and if they cannot carry fuel, they must take it. With regard to the armies of the French Empire, anybody who has only a superficial acquaintance with the subject must know the extent to which the system of plundering conquered countries was carried. I do not believe that there is on record a single campaign in which private property has been respected. No doubt, it is respected to a greater extent in recent times than in the warfare of the middle ages. Since the Thirty Years' War and the wars of Louis XIV. there is no question we have advanced considerably by the forbearance of belligerent Powers, and more humane and more civilized maxims have prevailed.
1387 But it is not by treaties or compacts between belligerent Powers, or by such Resolutions as this, that this result has been produced. It has been produced by the general softening of manners and the general improvement of humanity. We may hope that similar results will be produced in maritime warfare, but they will not be produced in the manner in which the hon. Member points out. In the first place, therefore, I deny the truth of the principle, that private property is respected in land warfare.
There is another important distinction between land and maritime warfare, upon which the whole question may be considered to turn. When you conquer a country, you conquer its Government; and when you have conquered its Government, you have conquered that engine by which the country can be plundered. Perhaps the language which I have used may be somewhat plain and homely; nevertheless it does express the exact truth. And if any hon. Gentleman will inquire what happened in Berlin during the French occupation, after the battle of Jena, and the French conquest by Napoleon, he will learn that the French possessed in the Prussian Government a most efficient engine for plundering that country. I remember hearing at Berlin in 1832, from persons well informed upon the subject, that there were still provinces of the Prussian monarchy in which the breed of agricultural horses had not yet been restored, in consequence of the requisition for horses which was made for the sake of the French expedition to Russia. I use that as an illustration of the way in which the Government raise contributions in a conquered country. With regard to the sea there is no similar engine. There is no Government which exercises any power at sea. The sea is merely the highway of nations. It is not the subject of Government or of sovereignty, and the only way in which a belligerent can exercise any control over the property of enemies floating on the sea is by capture by means of armed ships. With regard to the question of assimilating land warfare and sea warfare, the real assimilation was effected by the Declaration of Paris when this country surrendered the right of private warfare—when this country abolished privateering. There is the real analogy between land and sea warfare of which the hon. Gentleman is in search. We do not permit a single private individual to 1388 go out on a plundering expedition on land. We confine the contest to the armies of the hostile State. At the same time, we do not restrain that army seizing private property whenever such seizures may be necessary. We do not allow a private person to plunder on his own account. We used to allow him to plunder on his own account at sea by granting letters of marque. That principle we have abandoned; and if, unfortunately, a war had happened with the United States, I do not think it likely we should have had recourse to the system of privateering against the United States, although they were no parties to the Declaration of Paris. I think this country has definitively renounced the principle of privateering. To that extent I am quite ready to agree to assimilate land warfare and maritime warfare; but I do not assent to the hon. Gentleman's proposition, that the armed ships of a country are not to be allowed to take merchant ships. With, our fleet at Portsmouth or Plymouth, to allow enemy's ships to go in and out free from capture seems to me to be carrying the doctrine of forbearance in time of war to an absurd point. It is almost like interdicting ourselves from the use of gunpowder or heavy ordnance in time of war. Of course, we may, if we think fit, renounce the right to capture merchantmen not by privateers, but by our armed ships, if at any time the opinion of the civilized world, condemned the practice. But I think the House would come to an unwise and premature decision if—upon a vague generality, a mere formula which really might admit of any construction, but which is to receive a peculiar interpretation from the speech of the hon. Member who moves the Resolution, while it may receive various interpretations from the different persons who support it—they are to call upon the Government to subscribe to a principle liable to such formidable and weighty objections.
§ SIR GEORGE BOWYER
said, he wished to explain, that when he said that in warfare on land private property was respected, he did not mean to say that there might not be excesses committed against private property in such warfare, or that in cases of necessity violations, more or less, of the rights of private property might not take place. What he intended to say was, that in warfare on land private property was not system- 1389 atically seized, condemned, and sold, as it was in warfare at sea.
MR. T. BARING
Sir, I have listened with some surprise to the speech of the right hon. Gentleman the Secretary for War. The right hon. Gentleman, speaking of the Convention of Paris, not only referred to the possibility of that Convention being broken through in time of war and necessity, but went further, and said that no compact and no treaty made in peace is binding in war. Now, as I understand it, the Paris Convention was made in time of peace in order to provide against some of the worst evils and horrors of war.
SIR GEORGE LEWIS
—This is so important a point that I should be sorry if any misunderstanding arose. What I meant to say, and what I believe I did Bay, was this—that I conceived the Declaration of Paris to be binding as between this country and neutrals during the existence of war, and to be equally binding with a treaty, though it was only a declaration; but that if we were at war with any of the parties to that Declaration, then, like other treaties, it would cease to have a binding effect as regards that belligerent.
MR. T. BARING
—That Convention was made between six or seven States, including the great maritime Powers of Europe. I believe the only great maritime Power of the world not included is the. United States. Therefore it would operate in time of war as binding with respect to all except the two belligerents But does the right hon. Gentleman mean to say that we are now to discuss whether that was a wise provision or not? The hon. and learned Attorney General would not enter into the discussion of the merits of the Paris Convention; he treated it as an accomplished fact, which must be adhered to. Neither do I intend to discuss its merits. For the progress of commercial prosperity, I believe some treaty was necessary at that time. Whether it ought to have been carried to the extent it was. was a matter for reflection at the time; but it being now the law as far as regards the Governments that were parties to it, the question for us is, how will it act upon our mercantile navy and our commerce? As I understand the matter, by that Convention you hold neutrals' goods harmless wherever they may be found, and you also make the neutral flag cover enemy's goods. What, then, would happen in 1390 ease of a war between this country and France? Is it not evident that the whole of your carrying trade would pass into the hands of neutrals? You repealed your Navigation Laws. I do not now blame you for that. I am always for cautious and gradual progress; but when once a step is made, I am not for going back. But in time of war the neutral flag would, I repeat, carry all your commerce, and your ships would be placed at a great disadvantage as compared with every other maritime Power in the world. I cannot, therefore, help thinking that it is a wise thing to consider this subject in time of peace. I agree with the right hon. Gentleman that there is great inconvenience in discussing a question of national policy upon a Resolution like this, and I hardly know what reasons induced my hon. Friend to couch his Motion in these terms; but I take it that his object was to elicit the opinion of the Government and this House. He seeks, I apprehend, not to bind the Government to any particular course, but that those of us who agree with him, as I do, should express to Her Majesty's Ministers what I believe to be the feelings of the commerce of this country—that we should, if necessary, strengthen the hands of the Government in negotiating with other Powers. It is a question, no doubt, for negotiation with other Powers, and must be left in the hands of the Government. Whether the Motion ought to be in the form of an address to the Crown or of a Resolution is really a matter of very minor importance, and certainly would not call for the decided opposition which has been offered to this proposition by the right hon. Gentleman. The right hon. Gentleman will not listen to it at all. He says, "You might as well agitate whether there shall be privateering or not, or whether you will upset the whole Declaration of Paris, as even entertain this question." And he quarrels with my hon. Friend the Member for Liverpool for not agitating questions which we all thought settled. Again, he says, "You make a general Motion and confine your speech to a particular point." Why, it is that particular point which we are desirous to press on the attention of the Government. I am as anxious as any one for the supremacy of the navy of this country, but I cannot understand how you can advance that supremacy by damaging your commerce and your shipping interest. Do you mean to say that your 1391 navy would be less effective if it were not bound to protect your mercantile marine, or that you would have less naval force to employ against your enemy if it were freed from the duty of convoying? Why, what country has most commerce afloat, most property to be seized? Surely England. What country would gain most by the preservation of that property? It is England. You say that your object in war is to injure your enemy. What country would be so much injured in war through her commerce as England? It might have been a question, before the Declaration of Paris was signed, what course we ought to have taken. But there is not the slightest doubt in my mind that if you wish to benefit your commerce and at the same time to increase your efficiency as a belligerent at sea, you ought gravely to consider the Motion before us. The right hon. Gentlemen says, that the Duke of Wellington burnt houses in Spain when compelled to do so by the necessities of the army. Well, but you do not want to take a merchant ship for fuel, and therefore the right hon. Gentleman's argument entirely fails. The right hon. Gentleman adverted to the suggestion of a Congress, and said, that if you are to expect a meeting of diplomatists to consider the welfare of commerce, you must wait till the Greek Kalends. For my part, I do not see why a Congress should not meet and calmly discuss this question in the interests both of commerce and of Europe. I do not know what course my hon. Friend will follow, but I have heard with regret the announcement that the Government will not entertain this question, and that one reason why they will not do it is because the United States did not adopt this principle towards the Southern States. Why, that is the case of a struggle between two great sections of one country, and not an international dispute. It therefore constitutes no ground for opposing the views of my hon. Friend. I firmly believe that, sooner or later, this principle will prevail. It may be resisted by the present Administration, and yet I had certainly thought from the speech which my hon. Friend quoted that it would not have encountered opposition from the noble Viscount's Government. I thought from that language that the noble Viscount had seen that it was necessary to moderate the horrors of war, and that the Government was disposed as much as possible to pro- 1392 tect the private property of their own countrymen as well as of others. But, whatever course the Government may take as to the Resolution of my hon. Friend, whether they object to it as too general or not put in proper form, I am confident that the time will come when the House will not turn a deaf ear to the prayer which is addressed to it by the great majority of the commercial interests of the country.
§ VISCOUNT PALMERSTON
: I have no objection to the Motion of my hon. Friend, for I think this is a question of the greatest possible importance to the interests of the country, and one, therefore, which requires to be fully discussed. My own opinion is—and I hope that it will be the opinion of the House—that the principle which the hon. Member for Liverpool recommends, if carried into practice, would level a fatal blow at the naval power of this country, and would be an act of political suicide. I therefore entirely concur in the Motion for adjournment. We shall be perfectly ready to assist the hon. Member in fixing a day for resuming the debate.
§ MR. BRIGHT
I hope the noble Lord will give us a whole night, for it is a great disadvantage to have an important question like this brought on after some other subject has been discussed. The noble Lord has expressed a very confident opinion on the question, very much at variance with that quoted by the hon. Gentleman opposite. I hope, when he rises to address the House on the main question, that he will revert to his old opinion.
§ Debate adjourned till Monday next.