MR. GATHORNE HARDY,
in rising to move an Address to Her Majesty, humbly praying Her Majesty that, having regard to the oppressive and impracticable character of the obligations, hitherto unknown to International Law, which would be imposed on neutral nations through the interpretation placed by the Tribunal of Geneva upon the three Rules in the 6th Article of the 1964 Treaty of Washington, and upon the principles of International Law with respect to the duties of neutrals in connection with the subject-matter of the said Rules, Her Majesty will be graciously pleased, in bringing these Rules to the knowledge of other maritime Powers and inviting them to accede to the same, to declare to them, and also to the Government of the United States, Her Majesty's dissent from the principles set forth by the Tribunal as the basis of their award, principles which, by unduly enlarging the rights of belligerent Powers against neutrals, would discourage in the future the observance of neutrality by States desirous of peace—said, he trusted that in bringing on the Motion it would not be supposed that he was doing so in any party interest or with any other object than the interest of the nation at large. It seemed to him that this was a question on which every one might meet on common ground; and, looking at the terms of the Motion, he thought it could not be charged with doing more than setting fairly before the country what in his opinion ought to be done on a subject eminently deserving the attention of Parliament. Every one knew how difficult and complicated the relations of belligerents and neutrals were; the belligerent generally considering himself ill-treated by the neutral, while the neutral thought he was ill-treated by the belligerent. In the case of the civil war in America, there were so many peculiar circumstances connected with that great struggle, and the position occupied by this country with regard to the United States was so peculiar, that both North and South desired to obtain from us what was called a "benevolent neutrality" in place of the impartial neutrality which Great Britain attempted to uphold. It was not part of his duty to defend Lord Russell, but he thought that so far as impartiality was concerned, no one could impute to Lord Russell any other desire than to act fairly between the two combatants. The Northern States were of opinion that they were subjected to an unlawful rebellion, but Lord Russell felt from the time of the blockade of the Southern ports that he had to deal with two belligerent Powers, that it was impossible to treat one differently from the other, and thenceforth the sole object his Lordship had in view, pending the negotiations was to 1965 act with impartiality, so that neither of them should have reason to complain of any breach of neutrality on our part. Nor, if our municipal law had remained as it was at the time of the rebellion, could any breach of international law have been justly maintained against us by America. The object of the Treaty was to secure "an amicable settlement of all causes of difference" between the two countries, audit was most unsatisfactory to find that all the questions in dispute had not been referred to the Arbitrators who had charge of them. How, for instance, could a final settlement be expected when the Fenian raid in Canada was excepted? In the remarks that he was about to make on the Award of the Arbitrators at Geneva, he made no more imputation on their fairness or their judicial qualities than one does in appealing from the decision of a Judge to a higher tribunal, in order to have an important point finally settled and placed beyond dispute. He never understood that a Judge thought it a hardship to have an appeal from his decision; and when gentlemen undertake to decide, not only questions of fact, but attempt to lay down general principles for the guidance of the nation in future, it was only reasonable that Parliament—the great Tribunal of this country—should have an opportunity of investigating those principles, and come to a conclusion whether they were satisfied to be bound in future by the doctrines laid down by their Award. He would say nothing about the reasons they had given elsewhere, but he should confine himself to the document itself—although it would be necessary on one or two points to refer to certain Dicta of one of the Arbitrators to serve as an illustration of their meaning. He had no need to go into the main point they had in view in the course of the negotiations, and which appeared at a very early period in Earl Granville's instructions—namely, that there should be laid down for the future such a code of international law with regard to the duties of neutrals that should not only be appealed to by the two countries parties to the Treaty. but one that should be recommended to the acceptance of every maritime State of the world for its future guidance, and which should be so specific that there should be no misunderstanding the obligations imposed by it on belligerents 1966 and neutrals. Sir Roundell Palmer in 1871, adopting the language used by Lord Palmerston, dwelt much on the point—as did also his right hon. Friend Sir Stafford Northcote, who took part in the negotiations at Washington—that we should have certain definitions to guide us in future. The Three Rules had always been regarded on the part of Great Britain simply as an agreement between the two countries, and not as international law, although they might become international law if, on being accepted by the two States, they were afterwards endorsed by all the maritime nations of the world. It was most important no doubt that the belligerents should be allowed, by any code which might be agreed on, to conduct their warfare without being unjustly injured by the conduct of neutrals; but if he had to choose between those who disturbed the peace of the world and those who were solicitous for peace—those who by commerce hoped to bring about the union of the whole world—he would prefer to secure the neutral from oppression by laying down such Rules as would do perfect justice between all nations, whether they were powerful or weak. If the Rules were in future to be interpreted in the sense which the British Government by the arguments of counsel, and by the Dicta of Members of the Government in this House had defined, he would not have thought it necessary to make them the subject of a Motion, but the Rules had been otherwise interpreted. Earl Granville had stated that, if they were not entirely covered by the old Foreign Enlistment Act of 1819, they were more than covered by the new Act of 1870. Of course, if the Rules went no further than an Act of Parliament agreed on by both Houses, Parliament would have nothing to say in contravention of them. But had that interpretation been put upon them? It was, perhaps, necessary to remind the House of the distinction between municipal and international law. Our Foreign Enlistment Act was simply municipal law enacted for the benefit of this country in order that the State might control individuals within its own jurisdiction, and keep them from committing certain acts which were considered as detrimental to the interests of this nation. As it was not international law, no foreign State, no 1967 Prince or potentate, however great, had any right to call upon us to enforce that law. A foreign State might request us to do so, and we might comply with the request or not, as we thought just; but whatever was done, it was incumbent upon us to act with strict neutrality; we were bound to be careful not to put our municipal law in force in favour of one State as against another, or refrain from putting it in force in the interest of one State as against another. Nothing more was required of us by international law. International law might be called an unwritten law acknowledged by all the States of the world. It had been incorporated into the common law of this country, and for the sake of greater clearness and precision in reference to certain executive duties imposed upon us, we had passed enactments in relation to it, which were therefore part of our municipal law. The breach of one in such instances, was the breach of the other. In case of breach the country aggrieved had a right to demand reparation, or that the law should be put in force against those who have been guilty of its infraction; and when a State had been guilty of its wilful infraction, then a casus belli would arise between that State and the one injuriously affected. We are told that it was not meant by the Rules to give authority to foreign States to call upon us to enforce our municipal law, but only to ask us to exercise "due diligence" in enforcing it. But if that were so he should not be now addressing the House upon the subject; but an interpretation of so extraordinary a character had been put upon them that it was necessary that the House should come to some clear conclusion upon the subject, and that the meaning of these Rules should not be left in uncertainty so that future Arbitrators should have nothing to guide them. Anyone who read the Award would see that it was not the intention of the Arbitrators to confine themselves to applying the Three Rules to the special facts before them, but further to lay down general principles by which in future the Rules should be interpreted. It might be true, as the Chancellor of the Exchequer had said, that we were not to be bound by the reasons given by the Arbitrators nor by the principles they had laid down; but we had allowed ourselves to be tried on the basis of the Rules, had been 1968 judged in accordance with them, and were about to pay £3,200,000 in consequence. It was impossible, therefore, to go to foreign countries on the subject of international obligations without being confronted by the question whether we wished these Rules to bear the interpretation put upon them by the Arbitrators, or whether we wished them to be limited in accordance with the argument addressed to the Arbitrators in our behalf. The Award seemed to be accepted as far as regards our relations with the United States in the past. Was it to be accepted as a guide for the future? If it remained without protest on our part who were the sufferers, there would be no protest by the gainers; and if any controversy arose in the future of a similar kind, we should suffer again, because it was absolutely impossible to fulfil the obligations imposed upon us by the interpretation put upon the Rules by the Award. We had taken great pains to put ourselves in a position to fulfil, far beyond the requirements of international law, our duties as neutrals. We had passed an Act of the most extraordinary stringency—the Foreign Enlistment Act of 1870—which, in one instance at least, reversed all the forms of proof. That Act threw on a man charged with building and equipping a ship for a belligerent the onus of proving that he was not guilty. That was a very long step to take, and it showed how determined this country was fully and fairly to discharge the duties of neutrality. But the United States bad no such Act. The Act they had, had been described as much weaker than our former Act of 1819. He would not say it was much weaker, but at least it was no stronger, and it would be simply impossible to carry out these Rules under its provisions. Since we passed our Act of 1870, now some three years ago, America had taken no step in that direction. If, therefore, we were to come into collision with the United States on this point, the Government of that country was not in such a position that it could possibly carry out the Rules, because their municipal law would not enable them to do so. The broad inference from the Award was that the Arbitrators had laid down a principle which in itself seemed absolutely wrong. They said that the moment there was a reasonable ground for sus- 1969 pecting the building and equipping of a vessel for belligerent purposes, from that moment, whether the suspicion was founded on legal evidence or not, the sum of our obligations began to accumulate, and unless we succeeded in preventing the vessel from fulfilling the intent for which she was prepared we were guilty. There was no escape from that conclusion. That principle laid it down that we were to be insurers—that we were to insure a belligerent that no subject of this country, no matter in what portion of this great Empire he dwelt, whether here at home, or at the extreme distance of our remote Colonies, should do this thing. Now, he would ask the House whether that was not an intolerable burden—a burden which no country could bear? He was not exaggerating, he felt that he was only describing the true state of the case, because it was on the interpretation of the question of "due diligence" that all this Award seemed to turn. He came now to the Rules of the Award, and it might be convenient to take them in the order which the Arbitrators themselves had adopted. First of all the Arbitrators laid down this principle that "due diligence" ought to be exercised by neutral Governments, not to the best of their ability, but in exact proportion to the risks to which either of the belligerents might be exposed from a failure to fulfil their neutral obligations. What was meant by that? As far as he could understand, it was that you were not to measure the fidelity with which you carried out your obligations as neutrals by your duty, but by what might be the effect upon either of the belligerents. Now, that seemed to him to reverse all the rules of justice. We had a duty to perform, but the very principle of duty was that you Were not to look to the results — the results which might be brought about by the performance of your duty—but to do what was right, fairly, freely, openly, and candidly before the world, let the consequences be what they might. That appeared to him to be the first principle of duty; for after all, what was "due diligence," but due diligence in carrying out the municipal law fairly and faithfully, and as far as possible with justice to both parties? Now, it made no difference whatever that there was in the case this peculiar circumstance that the entire 1970 Confederate coast was blockaded, though that fact had from the beginning very much complicated matters in the eyes of the United States. But what was the next thing the Arbitrators said? That the facts out of which the controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government, of all possible solicitude for the observance of neutrality. We were called upon to exercise "all possible" solicitude—that is, to do everything not impossible. But there were a great many things no State could do. No State could possibly control the acts of every inferior servant. It could only do its best. The State could not prevent all offences against itself, as everybody knew. All it could do was to make certain acts criminal, but the criminals might possibly escape, and it would be rather hard to say that this country should be held responsible because it failed to detect persons in the offences which they committed. He came now to one of the most important points in the whole of this case, and that was the new doctrine with respect to commissioned ships. He had here a speech made in the House by Sir Roundell Palmer in 1871 upon a discussion raised by his right hon. Friend the Member for North Staffordshire (Sir Charles Adderley). That speech had been listened to by the whole House with the greatest possible attention, and in quoting from it a passage as to the bearing of international law on commissioned ships no one would question its propriety. Sir Roundell Palmer said—When any ship had once been commissioned as a public ship of war by a belligerent Power over whom we had no jurisdiction, no proceedings or inquiry having previously been held within our jurisdiction as to that ship, we did not consider ourselves bound or entitled to refuse to allow her, like other ships bearing a similar commission, and under the same restrictions, to enter any of our ports."—[3 Hansard, ccviii. 881.]Now, it is quite clear that the United States had always acted on that principle. In fact, the broad question was once raised there, and the United States, through their Attorney General, refused to interfere, on the ground that they would not have it said that they would do so discourteous an act to any Power as to seize on its commissioned ship as if they had jurisdiction over it. A com- 1971 missioned ship was always considered ex-territorial as regarded the country into which it had entered, and as part of the territory of the country to which it belonged. and although the ship might have been equipped in our yards, and deceitfully and clandestinely escaped from them, yet when it arrived at one of our ports with a commission it must be treated as belonging to one of the belligerent Powers, and if we seized upon such a commissioned ship we should do what no nation had ever done, and we should violate the first principles of neutrality as well as international law. No doubt it was said that the privilege of ex-territoriality was not admitted into the law of nations as an absolute right. That was true. He believed it would be in the power of any State to exclude a commissioned ship. If a commissioned ship came into its waters without permission, no doubt the State would take care to protect itself against such intrusion for the future. But we could not act upon the principle of exclusion without giving notice to the belligerents, and if a vessel commissioned by the Confederates, for instance, which, though suspected by this country, had never been legally condemned, were to be seized without notice, it would practically be an act of piracy. That was a proposition which it was impossible to maintain, and yet it was one laid down in this Award with the same authority as other dicta which preceded it. Now, it was necessary that he should carry this argument a little further. Already we were told that a commissioned ship had no exemption, and the other principle laid down was that you were bound to take proceedings against a commissioned ship, even in the absence of previous notice. They would find also the same rule laid down in the case even of the Florida which entered a Confederate port, remained for some time, and then issued from port again. But because she departed from our shores and came back to our shores again, was that a reasonable excuse for seizing her? Was the House prepared to say that we should take the position of neutrals with a great State on such a footing as that? Were they prepared to be bound in future to such action as that? The unfortunate Confederates were no more — they could make no reclamations as to what had been done; but we must look upon this as a ques- 1972 tion which might arise between this country and some of the great Powers of the world; and because a breach of municipal law had been committed on the part of a ship afterwards commissioned, were we to seize her when she came into one of our ports? Did they suppose if such a proceeding took place in the case of France or Russia or the United States it would not at once lead to reprisals? It must, therefore, produce a most formidable effect on the peace and prosperity of neutrals, and, so far from enabling them to perform their duty, would involve them in endless difficulty and danger. Could this country take such a step as to seize a commissioned ship in these circumstances? How was it to be done? This country was a constitutional, not a despotic country; and not only was there no provision of law to justify such an act as the seizure of a commissioned ship, but they would find in that very municipal law recently made so strict —the 32nd section of the 33 & 34 Vict. c. 91—an exemption of commissioned ships from such procedure. The Executive had, therefore, no means of guarding against that which was deemed most culpable in their conduct by the Award under which we were suffering. He was very reluctant to quote more than was necessary; but this point had been urged with great force by Sir Roundell Palmer before the Arbitrators. [Mr. GLADSTONE: Hear, hear!] The right hon. Gentleman cheered, and he should be delighted to hear that the right hon. Gentleman approved the reasoning. What did Sir Roundell Palmer say? He asks, with reference to Rule 1:—Does this Rule authorise the Arbitrators to treat it as a duty undertaken by Great Britain to seize Confederate cruisers commissioned as public ships of war, and entering British ports in that character, without notice that they would not be received on the same terms as other ships of war of a belligerent State, if they were believed to have been specially adapted, in whole or in part, within British jurisdiction to warlike use?' The negative answer to this inquiry results immediately from the natural meaning of the words of the Rule itself; which plainly refer to a departure from the neutral territory of a vessel which has not at the time of such departure ceased to be subject according to the law of nations to the neutral jurisdiction; and the cruising and carrying on war by which still rests in intention and purpose only, and has not become an accomplished fact, under the public authority of any belligerent Power.—[p. 94.]… The Rule says nothing of an 1973 obligation to exclude. If not excluded it would be a flagrant act of treachery and wrong to take advantage of their entrance to effect detention or capture. Their retrospective application cannot make an act ex post facto 'due' upon the footing of diligence to the one party in the war, which, if it had been actually clone, would have been a wholly unjustifiable outrage on the other. —[p. 96.]… It would be impossible that an act which would be a breach of faith and of international law to one belligerent should be held to constitute any part of the 'diligence due' by a neutral to the other belligerent.—[p. 96.]—North America, No. 1 (1873).The next dogma laid down was couched in somewhat milder terms, but it had exercised a most material effect on the Award. It had reference to the "coaling" of vessels. He thought the House, on carefully considering the precise terms of the second Rule, would be at a loss to imagine how it was possible that the question of supplying vessels with coal should be brought into that Rule, when at all times you might supply them with provisions and means of necessary repair. The second Rule said that the neutral—Shall not permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of renewal or augmentation of military supplies or arms, or for the recruiting of men.That was the Rule. It was clear that the coaling of vessels could not come, at the latter part of the Rule, under the heads of "renewal or augmentation of military supplies, or arms, or for the recruiting of men." So it must come within the former part, "making use of ports and waters of the neutral as the base of naval operations against one of the belligerents." Of course, if a vessel were allowed to come into one of our ports, and there wait until it could go out to take one of the enemy's ships, and then, if need be, return to port to save itself, to get fresh coal and go to sea again, that, no doubt, would be making your port the base of operations. But what should the base of operations mean in the understood international sense? The Lord Chief Justice said—A base of operations signifies a local position which serves as a point of departure and return in military operations, and with which a constant connection and communication can be kept up, and which may be fallen back upon whenever necessary. In naval warfare it would mean something analogous—a port or water from which a fleet or ship of war might watch an enemy and sally forth to attack him, with the possibility of falling back upon the port or water in question for fresh supplies or shelter, or a renewal of operations.1974 It was remarkable that up to the time of the consideration of the Treaty the United States had never complained of coaling as regarded the Confederates, and the two Powers coaled their vessels on precisely the same footing, only the United States got double as much coal as the Confederates. Whenever they required coal they went and got it. Sir Roundell Palmer said—It is no snore intended by the second Rule lo take away or limit the right of a neutral State to puma the coaling of steamers belonging to the war service of a belligerent within neutral waters, than to take away the right to permit them to receive provisions or any other ordinary supplies previously allowable under the known Rules of international law.No change was, therefore, made by the second Rule of international law as to coaling. Yet Count Sclopis held that the Florida and the Shenandoah both improperly coaled on account of the scene of their operations. The point put by the Arbitrators was this. They said that the Shenandoah took in coal at Melbourne; she then went away, and captured a number of whalers in some distant sea, the coals she took in at Melbourne having afforded the means of that capture; but they were not captured in the Melbourne waters; nor did she return to those waters, and there were no means of knowing beforehand what she was going to do. The Shenandoah in like manner got the allowance of coals, and returned no more. The Governor of Melbourne simply took care that she did not receive more than the Queen's Proclamation sanctioned, and he did not know whether she went to her nearest port or not. Afterwards she made this capture of the whalers; and that was now called making our ports the base of naval operations. To use the language of the Lord Chief Justice—We have here another instance of an attempt to force the words of the Treaty to a meaning which they were never—at least, as far as one of the contracting parties is concerned—intended to bear. It would be absurd to suppose that the British Government, in assenting to the Rule as laid down, intended to admit that whenever a ship of war had taken in coal at a British port and then gone to sea again as a war vessel a liability for all the mischief done by her should ensue. Nor can I believe that the United States had any such arrière pensée in framing the Rule, as, if such had been the case, it is impossible to suppose that they would not have distinctly informed the British Government of the extended application they proposed to give to the Rule.1975 He wished to know how the Foreign Enlistment Act, as it stood, would enable the Government to enforce as municipal law what was to be made international law by these Rules, because there was no provision in that Act under which we could prevent a lighter within our waters, going out to coal a war vessel; there was no provision in our municipal law which would enable us to interfere; and therefore the impracticability of the Rules was manifest, if we admitted the interpretation under which we were made to pay so severe a penalty. Having dealt with the first part of the case—namely, that which related to the commissioning and coaling of vessels, he would now come to the question of "due diligence," which he would endeavour to treat as untechnically as he could with the view of explaining what "due diligence" had always meant, and what was the only fair meaning that could be put upon it. By the Award, under all circumstances it was made to depend, as he had said before, not upon the duty, but upon the result. It was said that due diligence was in exact proportion to our obligations, and then it was said that we did not take "effective" measures of prevention, that our measures led to "no result;" therefore they could not be sufficient, and that the plea of insufficiency of legal means was of no avail. A nation had a right to expect from another, in the fulfilment of international obligations, an amount of diligence which might reasonably be expected from a well-organized, wise, and conscientious Government, acting according to its institutions and its ordinary mode of conducting its affairs; and it had no right to expect more. This was the ruling of the Lord Chief Justice. We had legal means at least as strong as those of the United States, and for a question to be decided ex post facto, upon the Rules, we had a stronger law than ever we had before and much stronger than that of the United States; but should we tolerate its being laid down that though we had gone as far in legal means as we thought it consistent with our dignity and our duty to the country, and though we thought our legal means sufficient, if they were insufficient to carry out this impracticable purpose, we were to be liable to compensate any belligerent whom we did not gratify by carrying out the im- 1976 possible? With respect to due diligence, it had been laid down that Foreign States have no right to require that where laws, fair and adequate, exist for the repression of offences, the Executive should overstep them. In fact, the Executive Government could not overstep them, because if they did there would be an immediate appeal to the Law Courts, and he was thankful that in this country law was still supreme. The only way in which the Government could overrule the law would be by coming immediately to Parliament and applying for an indemnity for an action which it had taken—they could not take it upon themselves to act in contravention of the law—and if that law did not assist them it relieved us, for all that a foreign country could ask us to do was to fulfil our municipal law. It was not for the honour of the country that it should submit to have its municipal law dictated to it by any belligerent whatever. It was for the country to decide itself how far it would control its citizens in the free exercise of their trade, and how far it would limit the power of its citizens and officers. It was not for any foreign country to complain that we had not made such a law as a belligerent might think necessary for its protection. The Arbitrators said practically that legal evidence was not required, and that all that was necessary to justify action was reasonable ground of suspicion. We replied that it had never been our custom to act upon suspicion without legal evidence. If we acted without it, what was the result? If we prosecuted and failed, we did more mischief than we should if we did not prosecute at all. The failure of such proceedings did infinite harm, because they exposed the weakness of the law and assisted those who wished to evade it. It was said by Sir Roundell Palmer—It would be unreasonable and impracticable to require that it—due diligence—should exceed that which the Governments of civilized States are accustomed to employ in matters concerning their own security or that of their citizens.Was that a fair test? It was a true one. We should use such diligence with regard to belligerents as was demanded by our own Imperial interests, and if that was done, that was all that could be fairly required. The Award adopted a totally opposite principle — that the failure to prevent was equivalent to the 1977 want of due diligence. He wished to call the attention of the House to another important point. It had been laid down by Sir Roundell Palmer that if the Government of a civilized nation had made reasonable provision for the prevention of illegal acts, and it proceeded to deal with all cases according to its accustomed methods of civil administration, it could not, for accidents and errors which no human foresight could foresee, be regarded as wanting in due diligence. On this point he would refer hon. Members to the argument of Sir Roundell Palmer as contained in the Gazette, pages 4,623 and 4,637, in the course of which he said—Without timely information and evidence of a legal kind sufficient and proper to constitute a reasonable ground of belief,' no obligation to use any such diligence arises, and the Government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course according to its accustomed methods of civil administration. This is, in fact, the 'diligence,' and the only diligence which is, in such cases, generally 'due' from an independent State to a foreign Government; and from this it follows that accidental and unintentional difficulties or delays, or even slips and errors, such as are liable to result in the conduct of public affairs, and from the nature of the subordinate instruments by which, and the circumstances under which, civil government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as evidence or proofs of a want of 'due diligence,' where good faith and reasonable activity on the part of the Government itself have not been wanting.But what said the Award? It said that the judicial acquittal of the Florida at Nassau could not relieve Great Britain of responsibility for what had actually taken place. Now in that case we had actually brought that vessel before one of our law courts, and she was acquitted; yet that decision was disregarded by the Tribunal. It was impossible that any Government could interfere with its judicial authorities. Even the United States, in their argument admit that, and no Judge would submit to be so instructed, and no Minister, however powerful, would ever think of attempting it. That being so, how was it that the Award laid down that the judicial acquittal was not sufficient to set this country free from its obligations? The Arbitrators had made the results alone, and not the intermediate acts connected with it, the test 1978 of due diligence. They would not allow the steps that were taken to weigh in the balance at all. The Florida was acquitted on the trial at Nassau for the want of sufficient evidence, but the Arbitrators said that they could not enter into the efforts made to prevent her escape from Nassau. They said, in fact, that she was once there—that she was suspected—that she escaped—that she became a Confederate cruiser—that she did a great deal of mischief which we took no adequate means to prevent—and that we must be responsible for all the injury which she did. He was not going to enter into the past. Those who desired to do so would have an opportunity when they came to pay the bill and hear how the Chancellor of the Exchequer proposed to raise the money. He spoke solely for the future, and with the view that this insufferable burden should not be placed on neutrals with a weight which rendered it impossible for them to discharge their duties to belligerents, and which would inevitably drag them into war as the lesser of two evils. The Shenandoah coaled at Melbourne, and people got on board of her clandestinely at night. In spite of all the precautions of Sir Charles Darling and all the orders of the Government, through the negligence of a policeman, and on a dark night, men got secretly on board her; and because she coaled there we were made responsible from that moment for all the mischief she did to the commerce of the United States. These were things over which no Government could have effective control. It was impossible to prevent a subordinate being negligent, or a policeman from going to sleep, or to hinder the occurrence of a dark night. The Lord Chief Justice well said—To hold under such circumstances that because the local police were not as vigilant as they might have been, or because under cover of the darkness men may have contrived to elude their vigilance, a nation is to be held liable for damage done by a vessel to the extent of a claim of many millions of dollars would be to carry the notion of 'due diligence' to an unheard of and unwarranted length, and would be calculated to deprive the decisions of the Tribunal of respect in the eyes of the world.Well, were we to go on with Rules capable of such interpretation by future Arbitrators? Was there anything unreasonable in asking the Government to take steps to prevent our being made liable for any such result? It was quite 1979 clear the Rules were not self-interpreting; and any one who read them for himself would put upon them an interpretation much more moderate than that of the Award. No doubt, when the hon. and learned Gentleman the Attorney General came to speak he would differ from the interpretation of the Arbitrators, Why should we fall blindfold into difficulties such as those we had just emerged from at great expense? It might be that we had cheaply purchased friendly relations with the United States; but if the Rules were fatal to our neutrality hereafter, the result might be deplorable. Was it reasonable to ask for these explanations? Was it a breach of the Treaty or would it interfere in any way with a due regard to our Treaty obligations? Perhaps he might be permitted to refer to what occurred a couple of hundred years ago. In 1674 we entered into a remarkable Treaty with the United Provinces, enabling them to carry all kinds of things which were not contraband. It proceeded to enumerate in minute detail everything that was contraband, and things which were not. In spite, however, of the legal accuracy and careful manner in whicht he Treaty was drawn up, difficulties arose as to its construction, and in 1675 the parties to it issued an explanatory declaration as to its "true sense and intention." Thus, instead of waiting until a dispute arose, they, in the following year, clearly and specifically declared what was the intent and meaning of the Articles. He hoped that in 1873 we should adopt a similar course with reference to what was done in 1872. To show that he was not asking for anything which was in the least unnecessary, he would call the attention of the House to what passed in the debate in 1871. First, however, he would remark that if the Government were to state to the House that they thought the Rules so unsatisfactory that they would not recommend them to other nations, and that they would not attempt to make them the law of maritime States, his task was completed, and he should have nothing more to say; but if on the other hand they were going to recommend them, it was necessary, as he contended, to recommend them with sufficient and accurate limitations. In the course of the debate in 1871, Sir Roundell Palmer spoke in that House with great authority 1980 on the subject of these Rules, for which, not being in office at the time, he was in no way responsible. The right hon. Gentleman said—With regard to the second Rule I confess when I read it first I was somewhat alarmed." Then on an assurance which does not cover coaling, he adds—"It would be unbecoming in me to criticize any longer the vagueness of the language in which this Rule is couched; and, without doubt, this construction of it will be clearly laid before those other foreign Powers who are to be asked to accede to it."—[3 Hansard, ccviii., 893.]In the same debate my right hon. Friend the Member for Devonshire (Sir Stafford Northcote) said he considered the second Rule needed explanation. Consequently, it was clear that whenever it was submitted to other countries for acceptance by them, it must be accompanied by an explanation limiting it in the manner indicated by Sir Roundell Palmer. The right hon. Gentleman at the head of the Government himself stated that that Rule, as understood by Her Majesty's Government and by the British and American Commissioners, was intended to apply to vessels cruising or carrying on war, and not to the case of military supplies and arms exported for the use of a belligerent from a neutral port in the ordinary course of trade; that questions as to the meaning of the second Rule had already arisen; and that both this Government and the Government of the United States accepted it on the understanding that it would be accompanied by a declaration limiting and defining its application. He would go still further. When the Indirect Claims were raised by the United States it was proposed that by a Supplemental Article they should be excluded from the Treaty. What was that but an explanation? With these precedents it was surely not unreasonable to ask that there might be such an explanation of these Rules that there might be no mistake hereafter. We never entered into the Treaty which the Award supposes we did—Non hæc in fœdera veni.and we must take steps for the future that we fall into no such difficulty as we have done in the past. In all the arguments adduced in favour of the Treaty by the right hon. Gentleman opposite (Mr. Gladstone), his right hon. Friend near him (Sir Stafford Northcote), by Count Sclopis, and other speakers, it was said that the Treaty was worth nothing 1981 unless its Rules were consecrated and confirmed by being made international law. The right hon. Gentleman at the head of the Government remarked—A great concession has been made to America, but that great concession lies in this—that we have consented to go to arbitration as to whether there was any defect in the administration of our municipal law.…. We have had nothing to add to claims which America was already able to establish against us out of our own mouths, while we have obtained the basis of that understanding which, I hope, will harden and widen into an international law for the benefit of the world.…. That Treaty has laid the foundation of future advantage in the administration and action of international law."—[3 Hansard, ccviii. 915.]Could it lead to such a result unless it were made clear, distinct, and definite? England reaching far over the world with Colonial Dependencies in every sea, it was impossible that she could be far reaching enough to effect the objects which were laid down as absolutely imposed upon her in that Award. It was impossible to prevent belligerent ships coaling in her waters. What England wanted was a law definite and intelligible to which she could really appeal, by which she could know, as a belligerent, how to deal with neutrals, and by which neutrals would know how to deal with her—a law by which she could carry on her own affairs as a neutral without laying herself open to those indefinite, those enormous, and those preposterous—as the Lord Chief Justice called them—Claims, of the extent of which we know something in the past, but of which we know nothing in the future. Let hon. Members bear in and that ours was a Constitutional Government, and that nothing could be done against property or liberty without the assent of that House and of Parliament. Having passed laws sufficient for the protection of our own subjects, were we willing to place ourselves at the beck and bidding of any foreign State, and to enact laws which were wrong in themselves, which were contrary to international law, and which would bring about the very evils they were designed to avoid. Of course, we must now bow without complaint to the decision of the Arbitrators, but we ought, at the same time, to provide for contingencies which might arise in the future. He could not conclude his remarks without calling attention to what Sir Roundell Palmer said in the admirable argument which he 1982 finally addressed to the Tribunal of Geneva. The right hon. Gentleman said—Rules of this nature, which could rationally be supposed proper to be proposed for general acceptance to all the maritime Powers of the civilized world, must evidently have been meant to be interpreted in a simple and reasonable sense, conformable to, and not largely transcending, the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind. They must have been meant to be definitely, candidly, and fairly interpreted; not to be strained to every unforeseen and novel consequence which perverse latitude of construction might be capable of deducing from the generality of their expressions. They must have been understood by their framers, and intended to be understood by other States, as assuring the continuance and involving in their true interpretation the recognition of all those principles, rules, and practical distinctions, established by international law and usage, a departure from which was not required by the natural and necessary meaning of the words in which they were expressed; they cannot have been meant to involve large and important changes, upon subjects not expressly mentioned or adverted to by mere implication nor to lay a series of traps and pitfalls, in future contingencies and cases, for all nations which might accede to them. Great Britain certainly, for her own part, agreed to them in the full belief that the Tribunal of Arbitration, before which these claims would come, might be relied upon to reject every strained application of their phraseology which would wrest them to purposes not clearly within the contemplation of both the Contracting Parties, and calculated to make them rather a danger to be avoided than a light to be followed by other nations.He should not have quoted the arguments of Sir Roundell Palmer as an advocate, but that he had made those arguments judicial by what he had said within the last few days. Lord Selborne said—I did not offer to the Tribunal at Geneva any arguments on subjects of International Law other than those which I honestly believed to be sound and correct. Nor do I suppose that the Government have changed their views on account of any opinion which on the face of the Award, or off the Award, may have been expressed by any of the Arbitrators.…. I do not hold that we are bound by any propositions which do not commend themselves to our reason and judgment with regard to the grounds of their opinion., … If we continue to interpret the Rules (as I think we shall) as we did from the beginning, then we shall expect from the United States a faithful and punctual observance of them according to that interpretation. Under that we have sufficient powers conferred upon ourselves, and I do not think we shall be under the necessity of asking Parliament to arm us with any fresh powers."—[3 Hansard, ccxiv. 44–47.]It appeared that the noble Chancellor was of opinion that by such an interpret- 1983 tation we might secure ourselves, that we should not have to alter our municipal law, and that we should be able to act under it without coming to Parliament for new powers. If the interpretation of the Award by the Arbitrators were accepted, it was easy to gather from the argument that it must be necessary to come to Parliament for powers, and yet the United States, which was equally bound with ourselves by these Rules, remained under the old law of 1819, under which she could not carry out one-tenth of the propositions laid down. The last extract with which he would trouble the House was a statement on the part of the President of the Tribunal at Geneva, little thinking how inconsistently he had acted in regard to the principles affirmed by him in this statement. He said—We must beware of rendering the condition of neutrals too difficult and almost impossible to be maintained. The importance of circumscribing war is a matter of continual remark, and if neutrals are to be overwhelmed with a burden of precautions and the weight of responsibility which is in excess of the interest they have to remain neutral, they will be forced to take an active part in the war, and, instead of a proper inaction, we should have an increase of hostilities.In conformity with that view, he had couched the Motion which he had submitted to the House. He had endeavoured to prove, and to his own feeling he had succeeded in proving, that there were principles laid down in the Award which were fatal to the interests of a neutral. If they were to submit these Rules to maritime States, it was most important that they should give an interpretation of them and negative that which had been given, so that they might go to a future arbitration upon plain and intelligible grounds. Let them look forward to a future, not like the past, of indefinite anxieties and prolonged troubles, such as they had gone through in connection with the American War, but to certain, precise, and definite rules by which they were ready to abide, to the honour and dignity of this country, and to the advantage of every nation, whether neutral or belligerent.
To leave out from the word "That" to the end of the Question, in order to add the words "an humble Address be presented to Her Majesty, praying Her Majesty that, having regard to the oppressive and impracticable character of the obligations, hitherto unknown to International Law, which would be imposed upon neu-
tral nations through the interpretation placed by the Tribunal of Geneva upon the three Rules in the 6th Article of the Treaty of Washington, and upon the principles of International Law with respect to the duties of neutrals in connection with the subject-matter of the said Rules, Her Majesty will be graciously pleased, in bringing these Rules to the knowledge of other maritime powers and inviting them to accede to the same, to declare to them, and also to the Government of the United States, Her Majesty's dissent from the principles set forth by the Tribunal as the basis of their award, principles which, by unduly enlarging the rights of belligerent powers against neutrals, would discourage in the future the observance of neutrality by States desirous of peace,"—(Mr. Gathorne Hardy,)
§ —instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. W. E. FORSTER
said, there was much in the moderate and, he need not add, the able and eloquent speech of the right hon. Gentleman (Mr. G. Hardy) in which he entirely concurred, although he feared he must ask the House to listen to a few arguments to show why the Government could not accept the Motion, and why, indeed, the right hon. Gentleman, after some explanations, would not, he trusted, wish to press it. He would, in the first place, touch cursorily upon one or two arguments which perhaps did not affect the main line of the argument. He understood the right hon. Gentleman to say that if our municipal law had remained as it was, no charge of a breach of international law would have been made against us.
MR. GATHORNE HARDY
What I said was "could be justly maintained against us." I said my belief was that we had not been guilty of an infraction of our municipal law.
§ MR. W. E. FORSTER
was glad of this explanation, because his Colleagues and himself had understood the words in another sense. He himself believed that if our law had been at the time of the American War just as it was at present, the House would not have had any occasion for this discussion. He strongly felt that it was very much owing to the ambiguity of our municipal law that any Alabama escaped, or that any of these facts occurred which induced the Americans to make these claims upon us. He must really demur to the statement of the right hon. Gentleman that no charge could have been maintained against us if our law had remained as it was. The 1985 House must remember that the alteration made in the law in 1870 only made clear the Act of 1819, and did not go much beyond the acknowledgment of international obligations which had been made by both nations, and, indeed, generally by the civilised world. The right hon. Gentleman spoke of the Act of 1870 as a very stringent one; but it was the result of an investigation into all the circumstances that had occurred. It was in accordance with the Report of a Commission of which he happened himself to be a member, but which included the Lord Chancellor, the hon. and learned Member for Oxford (Mr. Harcourt), and several other high legal authorities, and the Act was the result of the unanimous Report of that Commission. The right hon. Gentleman (Mr. G. Hardy) said that no belligerent had the right to call upon a neutral to carry out its own municipal law. But what, after all, was the object of municipal law? It was to take care that the Sovereign of the country should secure that none of her subjects should wage private war with any country with which that Sovereign was at peace, and to oblige her subjects to observe the duties of neutrals. It was to a certain extent the acknowledgment of what was the duty of a neutral, and it could hardly be expected that a belligerent would not remind the neutral of its own municipal law, and ask for its enforcement. However, he very much agreed with the right hon. Gentleman as to the true meaning of the Rules in question; and as to what the Government—and he did not doubt the English nation—considered to be their true interpretation. But then came the question, were the Government and the House to accept the Motion as the right hon. Gentleman made it? It was impossible to deny that the Motion was a Vote of Censure upon the Arbitrators. [Mr. GATHORNE HARDY dissented.] The right hon. Gentleman shook his head; but if the House recorded the Resolution proposed by the right hon. Gentleman, he thought it would be impossible to deny that it would be regarded as a solemn condemnation of the Arbitrators and the decision at which they arrived. The Resolution did not accuse them of any corrupt motive, but it was difficult to find stronger words than those which it contained. He did not doubt the power of the House to pass a Vote of 1986 Censure upon the Arbitrators; but was that course incumbent upon them, or was it a dignified course to adopt? The Treaty set forth that the Contracting Parties agreed to observe these Rules as between themselves in future, to bring them to the knowledge of other maritime Powers, and induce them to accede to them. The right hon. Gentleman said that we ought to accompany these Rules with the statement of our opinion on the question of their interpretation. But our present position was that, after the signature of the Treaty, there was a correspondence between the two Governments as to the best mode of making a joint communication of the Rules to other Powers. It was clear that the Treaty, following the example of the Declaration of the Congress of Paris, looked forward to such joint communication, and the House would agree that it would be much better that there should be a joint communication than that each Contracting Party should send with the Rules its own separate interpretation. That correspondence was interrupted by the discussion relative to the Indirect Claims. The last letter in that correspondence was written on our side, and it remained with the United States Government to re-open that correspondence whenever they felt disposed to do so, when Her Majesty's Government would be fully prepared to continue it. It would appear from the speech, although not from the terms of the Motion of the right hon. Gentleman (Mr. G. Hardy), that he was of opinion that no time should be lost in bringing these Rules before the foreign Powers, coupled with a declaration that we disagreed altogether from the principles upon which the Award had been made. But on that point he (Mr. W. E. Forster) thought the House would support Her Majesty's Government in claiming a right to use their discretion as to the best time both for communicating these Rules to foreign Powers, and for asking the United States to join with us in making that communication. He thought he could claim that forbearance with an almost certainty of success, especially after the remarks which had fallen last night from the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli.) He had understood the right hon. Gentleman to say that this matter of the communication of the Rules to 1987 foreign Powers was of such immense importance and of such great difficulty, that even if he had at once taken the reins of office it might be weeks or months before he should feel himself able to state to the country what ought to be done with regard to it. The right hon. Gentleman had certainly added that when he did take any steps in the matter he should act with energy and decision. He did not doubt that the right hon. Gentleman would act with energy and decision on this or on any other question with which he had to deal. He trusted, however, that his noble Friend, the Foreign Secretary (Earl Granville) would adopt a similar course. He trusted, however, that if the right hon. Gentleman had had to conduct this matter he would have also acted with prudence and not with undue haste, and would have shown that he was not to be carried away upon the mere impulse of the moment. There were two or three reasons why Her Majesty's Government did not think there was any immediate ground for pressing the United States to join us at the present moment in making this communication to Foreign Powers. In the first place, all the engagements of the Treaty had not yet been carried out, and it would be desirable to wait until those engagements were fulfilled before we proposed to take any steps in this matter. In the next place, it certainly would be advisable to let any heat that might have arisen in either country in consequence of the Indirect Claims cool before we pressed the United States to come to this joint understanding with us on the subject of these Rules. In the third place, the House must remember that the United States and England occupied at the present moment a very remarkable position with regard to the rights of belligerents and neutrals. Until the late American War the United States had always been the champion of neutrals, while this country had always been the champion of belligerents. For some time international law had been constantly varying, and had been greatly influenced by the development and more complete recognition of two principles apparently somewhat conflicting—firstly, that it was the duty of every Sovereign authority to prevent its subjects from waging private war on nations with whom it was at peace; and, secondly, that the commercial rights of neutral nations should be 1988 interfered with as little as possible by belligerents. But when the American nation found itself engaged in a war for its very existence, it found that its interests almost of necessity required that it should strengthen as much as possible the rights of belligerents. It was impossible not to expect that in the course of time America would in some degree revert to her former position and support the rights of neutrals as against those of belligerents. Under these circumstances it was undesirable that we should press the American Government to arrive at an immediate decision with respect to these Rules, and that we should give that country time to recall to its recollection the course it had always pursued during its past history. It was not improbable however, that the right hon. Gentleman would say that the Award, and the principles on which it was arrived at, as well as the interpretation which had been put upon the Rules by the Arbitrators were so fatal to the rights of neutrals and were so dangerous to the peace of the world that we ought at once to enter our protest against them. But what was our present position in relation to this subject. As regarded Governments other than the United States, we were not bound by the interpretation which had been put upon the Rules in the Arbitration, by the principles which had been enunciated by the Arbitrators, nor even by the Rules themselves; neither should we be bound by them until we had asked some foreign nation to accede to those Rules, and until such nation had accepted them. As regarded the United States Government we were bound by the Rules. They were contained in a solemn Treaty, and we were therefore fully bound by them as construed according to the ordinary construction of the English language. But we were not bound by any opinions which had been expressed with regard to those Rules by any of the Arbitrators. We were not bound by any statements by any of the Arbitrators in the Conference that had been held previous to the Award being arrived at. Neither this country nor America was bound by any statements which had been made by Mr. Adams, whose name he could not mention without expressing his belief that he had fulfilled his duty as the representative of the American nation in this country in such a way as to make him believe that 1989 if all matters of difference had been left in his hands there would have been no occasion for Arbitration. We were not bound by the most eloquent and able statement of our own Arbitrator, the Lord Chief Justice of England, who had vindicated the principles of British Law and the rights of this country with all the more power because he never forgot his position as an impartial Arbitrator. We were not bound by the arguments of our learned Counsel (Sir Roundell Palmer), although he need not say that we were grateful for those arguments. But we were bound in honour by our own declarations and our own statements which were contained in our Case, our Counter-case, and our Summary furnished to the Arbitrators. Was it not better, under these circumstances, to leave the matter where it stood for the present? We had agreed with America to abide by certain Rules; we were prepared to abide by those Rules according to any fair and reasonable construction which the English language would permit to be put upon them, and we had set forth in our Case, our Counter-Case, and our Summary the interpretation we put upon those Rules as applied to particular facts. What more was it desirable that we should do? Surely the right hon. Gentleman did not desire that the Government should enter into a controversy with the four Gentlemen who had signed the Award?—a course which he conceived would not be advisable, and would not conduce to the dignity of this country. He could hardly believe that the right hon. Gentleman intended to press this Motion, which, if carried, would mean that that House thought it necessary to declare that the Arbitrators had decided the question between ourselves and the United States in a perverse manner, and upon impracticable principles. Such a declaration on our part would make it appear to the whole world that we were rather smarting on account of having to pay a certain sum of money, and that we desired to censure those who had decided against us. But if a Vote of Censure of this kind were to be passed at all, its terms should be precise, while those contained in the right hon. Gentleman's Motion were not precise. He could imagine many reasons why the right hon. Gentleman should confine his Motion to the interpretation of the Rules, 1990 but he must demur to the Award being spoken of as in any sense an "interpretation." It was simply a statement of the opinions of the Arbitrators as to what they conceived to be the principles of international law. As to the construction put on the words "due diligence," he quite concurred with the right hon. Gentleman in regarding it as extraordinary; but it was not, he thought, to be looked upon as an interpretation of those words, but as, in reality, the opinion which the Arbitrators thought fit to recommend, as what they conceived to be the principles of international law. He could understand that the right hon. Gentleman might think it incumbent on the Government to protest against a positive interpretation of the Rules because they did not admit that they bore the interpretation which was placed upon them. He could not, however, imagine the House entering into a dispute or controversy with the Arbitrators as to what were the principles of international law. If the Arbitrators put upon those principles a certain interpretation, the Government did not consider that they had any right to bind us to that interpretation. Indeed, they certainly believed that such a doctrine as that laid down with regard to "due diligence" would not be looked upon as an interpretation of the first and third Rules. They were also of opinion that there was in the second Rule nothing to prevent the ships of belligerents being in some cases coaled in our ports. But they went further, and maintained that it was not the business of the Arbitrators to make any interpretation whatever of the Rules. The position in which they stood with respect to the Arbitrators was simply that they obeyed their Award, that they acknowledged the power which had been conferred on them to adjudicate on the disputes between England and the United States; and that they thanked them for their patient investigation of the circumstances. After all it must be remembered that, in the course of the Award, we occupied much the same position as the parties to a law suit, who, if they were defeated, ought not to complain of the decision of the Judge unless they believed him to have been actuated by corrupt motives. But, although we might obey the decision of the Arbitrators and thank them for the manner in which they had conducted their investigation, it was 1991 not necessary to protest against any of the opinions which they might have thought fit to give, either on the principles of international law or the Rules themselves, because it was not admitted that it was their duty to express any such opinions. He contended that the Arbitrators had no power to decide on the principles of international law for the future, and he refused to acknowledge their authority as legislators. There was another reason why he hoped the Motion would not be pressed to a division. It was no doubt desirable that this country and the United States should agree on a joint communication—that was contemplated by the Treaty; but the passing of the present Resolution would make such a joint agreement impossible. The result of its passing would be the commencement of long and fruitless discussions between us and the United States, the object of which he could not conceive. He was ready to admit that it would be advisable to incur the inconvenience of such discussions and controversies if it could only be shown that it was the best way, or indeed any way at all, of avoiding being bound by the principles contained in the Award: He, however, maintained that this country was in no way bound by the opinions of the Arbitrators, but by the Rules and the ordinary construction of those Rules. He would merely add that it rested with the United States to re-open the correspondence in the matter, and that the Government would be prepared, when they thought fit to do so, to endeavour to agree with the United States in so presenting the Rules to foreign nations as to prevent any misconception of their true meaning, and in such a manner as to insure their being accepted by other countries in the sense in which they had been assented to by our own Government and that of America. Of course, if there should be a difficulty in arriving at that joint understanding, the joint promulgation of the Rules must be postponed until that difficulty had been surmounted. He must, however, express it to be his opinion that the difficulty would not be found to be insurmountable, unless the negotiations on the subject were hampered and rendered almost impossible by such a Resolution as that now under the consideration of the House.
§ MR. VERNON HARCOURT
had hoped that the right hon. Gentleman (Mr. W. E. Forster) would have been able to make on the part of the Government a statement more satisfactory to those who sat on the same side of the House as himself. The House of Commons stood in a somewhat peculiar position with respect to the subject under discussion. On the first night of the Session the right hon. Gentleman at the head of the Government informed the House that the Rules had been communicated to foreign nations—a statement which, however, had afterwards been set right. The Chancellor of the Exchequer also stated that we were under Treaty obligations at once to communicate those Rules without note or comment—to use the phrase employed by a public journal in commenting on the language of the right hon. Gentleman the next day. Now, the right hon. Gentleman who had just spoken, had told the House that they ought not to pass the Resolution before them, because it would amount to a censure on the Arbitrators. He must, however, protest against the House of Commons being treated in that way. They had heard a little too much lately about Votes of Censure. The Arbitrators might not, perhaps, be able to resign—he did not see how they could—but if they could they might not find themselves in a very much worse position soon after. But, be that as it might, Votes of Censure were not, it was quite clear, such formidable things after all; and if the House of Commons was not to pronounce an opinion on our foreign relations because, in doing so, it might be considered as a Vote of Censure, or because it might displease some parties abroad, what, he should like to know, was to be thought of the position of the House as managing the affairs of this great nation? He was one of those who held the opinion—and he was ready to take on himself a portion of the blame—that the House of Commons too much abdicated its functions, and that if it had evinced more courage at an earlier stage of those discussions the country would not be placed in the difficult position in which she now found herself. His right hon. Friend the Vice President of the Council said it was not desirable to enter into a controversy with the Arbitrators; but such language showed 1993 a most extraordinary misapprehension of the Resolution. The Resolution did not propose any such controversy. We were, of course, much obliged to the Arbitators for the pains they had taken, but we had nothing more to do with those gentlemen. The Resolution did not ask the Government to address the Arbitrators, but when it communicated the Rules to other nations to express their opinion as to the operation of those Rules. Controversy with the Arbitrators was entirely beside the question. He would also remind his right hon. Friend that it was an entire misapprehension of the whole character of international law to say that we had nothing to do with the opinions which the Arbitrators had pronounced. He could see no distinction between the miscarriage of these Rules and miscarriage upon international law generally; and if there had been a miscarriage in respect of these Rules, it was the duty of the House to protest against that miscarriage of international law. What was international law? It was constructed out of the precedents furnished by great transactions. That with which the House was now dealing was a great transaction, and the opinions of the Arbitrators upon it constituted part of that great mass of precedents by which international law itself was constituted. It was a question, therefore, upon which it became necessary that the opinion of the House of Commons should be pronounced, and it had, he believed, been brought forward by the right hon. Gentleman opposite in no party spirit. That was no question for party. It was a question in which all parties alike were interested; and not only the future destinies of this country, but the peace of the world was involved in this issue. The right hon. Gentleman opposite (Mr. Disraeli) the other night said that was a much larger question than that of Irish University education; and it was a larger question exactly in proportion as nations were greater than Colleges, and as mankind was greater than the class of undergraduates. Now, he did not object to that transaction because he objected to the principle of Arbitration. That was a principle which he always had and always would, to the extent of his humble ability, advocate and promote, believing that it was for the highest interests of civilization that the rule of reason and of justice should be substi- 1994 tuted for the barbarism of war. Arbitration, he thought, never could supersede diplomacy; he hoped it would be in the future to a greater extent than it had been in the past the handmaid of diplomacy. It might, and he hoped it would, be made the great peace-maker of nations. But it was necessary, in the interest of the great principle of arbitration, that they should in some form or other express their dissent from the doctrines of that Award. That Award, which assumed to settle existing quarrels, in fact sowed the seeds of further quarrels; it bred more dangers in the future than it could have averted in the past; and, in his opinion, it would be a fruitful source of universal dispute. Instead of circumscribing, as it ought to have done, the area of war, the doctrines which it laid down were such as must extend the area of war by discouraging, as the present Motion said, the practice of neutrality. Therefore he could not but regard the doctrines of that Award as resembling the Anarch spoken of by Milton, who, "by decision more embroiled the fray." Let them disengage if they could the cause of arbitration from those doctrines, and endeavour, for the sake of the principle of arbitration, to defend its character against that most unfortunate miscarriage. Let them endeavour to satisfy themselves and the world that arbitration did not necessarily involve in its consequences the promulgation of unsound principles and the establishment of dangerous precedents. He had the honour to receive that week two communications from abroad on this subject; the one from a gentleman coming from the United States, bearing letters from one of the most distinguished American jurists; the other a long paper from a very eminent Belgian jurist; and both communications invited the co-operation of students of international law in the cause of arbitration. The only answer he could give to them was, that there never was a time less encouraging for such a project than the present in consequence of recent events. There was some reason to believe that the opinion of American jurists on the doctrines laid down in that Award were hot very different from those entertained in this country. It was not because the sentence had been given against us that he made these objections; for, as the Motion pointed out, what they protested 1995 against was not the decision itself, but the doctrines which were to bind them in future, as they would be bound, unless they protested against them, as connected with those Rules. He had always thought that upon the old Rules of international law in the case of the Alabama, this country might have set up and established a justification; but he had never wished that we had succeeded in establishing such a justification. He had believed that precedent was injurious to England, and thought the case itself was of evil example to mankind. Therefore he had never been desirous that there should not be new Rules laid down in that matter. There could be no doubt that the state of international law on the subject was most unsatisfactory. International law, as he had ventured to say, was a law of public opinion of States. It was very much like our constitutional law, where the limits of powers, theoretically independent, were practically settled by precedent and opinion. and although, on the ground of its very nature, it could never be made the subject of rigorous codification, at the same time where they had disputed points which had frequently led to difficulty they might—as they did in the Declaration of Paris, and as they attempted to do under these new Rules—endeavour to settle difficult points, and bring them to some clearer and more definite understanding. Therefore, he had not objected to the principle of laying down some new Rules in such a case. Neither had he objected—on the contrary, he had sought to defend—the giving to those Rules even a retrospective effect. and for this reason, that although there was a popular and, perhaps, not unnatural prejudice against the retroactive operation of laws of any description, if they desired to modify the law of nations—and it was impossible to say that those Rules were not intended to modify the law of nations; in fact, there was a specific article in the Treaty which declared that they had modified it—if they desired to modify the law of nations they could not expect the United States to join them in that modification unless they gave that country the compensation of the retrospective action of the Rules. The indemnity we paid in respect to the retrospective action of the Rules was, in fact, the consideration we gave to obtain in a matter of 1996 great consequence to ourselves a clearer and more decided law in future. And this he had always thought justified the Government in the course they took on that point. Therefore he had regarded it as a statesmanlike arrangement, and one deserving the support of Parliament. He did not complain, then, of the Rules because they were new, nor because they were retrospective in operation; but then it was essential that they should give precision to the law; and, unfortunately, that was exactly what they had not done. They failed in fulfilling the condition for which alone it was justifiable to have new Rules at all. So far from making the law of nations clearer and more definite, they would deeply compromise the future interests of peace; and, therefore, we had lost the very consideration which alone made it worth while for us to give to America the indemnity to which he had referred. He did not want to be too severe in his criticism of those Rules, and, therefore, would only say they appeared to have been drawn about as accurately as an average modern Government Bill. They had evidently puzzled the Judges abroad, quite as much as some Acts of our Parliament of late years had puzzled the Judges of Westminster Hall; and if the Judges abroad had come to a conclusion exactly opposite to that which was intended, why that was only what was occurring every day in our own domestic legislation. How had that arisen? They had been told—and it was a very singular fact—that the Government never had, in this country at least, a professional opinion on those Rules. The Attorney General had told them that he had never seen the Washington Treaty, and that the opinion of the Law Officers of the Crown had not been taken on that Treaty or on the Rules. This was a very different course, he believed, from that adopted by former Governments; for in the great difficulty in which England was placed by the Trent affair, not merely was the opinion of the Law Officers taken, but certain persons—at least one person—eminent for a knowledge of international law—was sent for by the Cabinet and consulted by them. Therefore, as regarded the Washington Treaty and the Rules, the Government was inops consilii as far as the law of the case was concerned. He would say nothing against the Commissioners at Washington, who, 1997 in his opinion, were not responsible for what had been done; and nothing could be more unfair than to lay the blame on the wrong shoulders. He had heard the most undeserved censure passed upon them. He had the honour of the acquaintance, and he hoped of the friendship, of Mr. Mountague Bernard, and he ventured to say that there was no jurist in or out of England who was more competent than that Gentleman to deal with such a matter. But what the experience of that case had shown was the great imprudence of attempting to settle the law of nations by the electric telegraph. It might be desirable in many cases to settle matters on the spot, but in a case like that now under discussion much more consideration ought to have been given. It had been said of the celebrated Queen of Bohemia that misfortune came upon her because she "would be a Queen." He thought that misfortune had come upon our Government through their saying that they "would have a Treaty." It might be asked, why did he say these things now, and why had he not said them before? Well, he had felt an almost invincible repugnance to the idea of interfering with a Treaty in its progress. He felt the responsibility of interposing any obstacle to a settlement with America, but he felt that we had committed a mistake, and that had the matter been more fully discussed in the House our position would have been better. He entertained at the time, however, so much doubt with reference to the second Rule of the Treaty, and the danger which might arise from its ambiguity, that he was on the point of bringing it under the consideration of the House when he found that Sir Roundell Palmer was equally impressed with the danger, and had given notice of a Question on the subject. We were then engaged in a controversy of the utmost seriousness with Germany in reference to our dealings with France in munitions of war, and if the Rules of the Washington Treaty were to be accepted as interpreted by the Arbitrators the whole case for which Prince Bismarck contended was established, and we were quite in the wrong. The right hon. Gentleman opposite (Mr. G. Hardy) had quoted Lord Selborne's subsequent reference to it, but he would cite Sir Roundell Palmer's question and the Prime Minister's reply, for they formed 1998 an irrefragable justification for this Motion. The question was one of the class well described as "arranged" questions, and was in these terms—Sir Roundell Palmer asked the First Lord of the Treasury whether the Second Rule in Article VI. of the Treaty of Washington is understood by Her Majesty's Government as prohibiting the use of neutral ports or waters for the renewal or augmentation of military supplies or arms to a belligerent, only when those acts are done for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against another belligerent; and not when military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce; whether any steps have been taken by Her Majesty's Government to ascertain that the Rule in question is understood by the Government of the United States in the same limited sense; and if so, with what result; and, whether it is intended, in any communications which may be addressed to Foreign Governments with a view to the general adoption of this Rule, to guard against its being accepted or understood in any larger sense."—[3 Hansard, ccvi. 1903.]Thus a new Rule intended to make everything precise was so ambiguous as to lead one of the greatest living jurists to put this series of questions, and what was the Prime Minister's reply?—With reference, Sir, to the first part of the hon. and learned Gentleman's Question, I perceive that it has been framed with great care, and having considered our reply with equal care, while avoiding entering into any of the details of the Question, I am in a position to answer this part of the hon. and learned Member's Question in the affirmative. In answer to the second part of the hon. and learned Gentleman's Question, I may state that we have had an opportunity of communicating with Lord De Grey, with the right hon. Gentleman opposite (Sir Stafford Northcote), and with Mr. Bernard on the subject, who have all of them given us the fullest assurance that the understanding referred to in the first part of the hon. and learned Gentleman's. Question is that of the United States in reference to this matter, and further, that it has been in our power to communicate with the distinguished Gentleman who has arrived in this country as the representative of the United States, who was a member of the Joint High Commission—General Schenck—who has informed Her Majesty's Government that such was his understanding also of the meaning of the Rule in question; and, indeed, we have been told by that Gentleman that the President of the United States himself understands the Rule in that sense, and that the latter would himself be the first, not only to admit and allow, but to contend for that construction of the Rule in question. With regard to the third part of the hon. and learned Gentleman's Question, I am able to state that Mr. Fish, the United States' Secretary of State for Foreign Affairs, who was also one of the Commissioners, has expressed an opinion that it would be advantageous if the two Go- 1999 vernments were to make a joint declaration which should place the meaning of this Rule beyond all chance of misconstruction."—[3 Hansard, ccvi. 1904.]This Rule, therefore, had not been made a week before it became necessary, in the opinion of both Governments, to have an explanatory document, and he supposed, if the intention expressed by Mr. Fish was carried out, that such a document existed, for these words were uttered on the 12th of June, 1871, more than a year before the Arbitration commenced. The Prime Minister went on to say—I believe that communications have been entered into between some of the British Commissioners and some of the United States' Commissioners and other distinguished authorities in America on the subject, and that they have also come to the conclusion that it is impossible to entertain the slightest doubt but that the meaning to be attached to the terms of the Treaty is that which the contracting parties themselves attach to them."—[Ibid.]A more unsatisfactory condition than that revealed by this Question and answer could not be conceived, for it was evident —if he might be allowed to use so homely an image—that the kettle leaked before it was put on the fire at all; the ship was not seaworthy at the time it was launched, and the moment she came to be tried all her seams opened and the water flowed in at every point. Sir Roundell Palmer had not, however, anticipated the full effect of this position till he got to Geneva, when he made the striking and eloquent protest quoted by the right hon. Gentleman opposite (Mr. G. Hardy) urging that the Rules were intended to be interpreted with reference to the principles of international law. What was Mr. Caleb Cushing's reply? The right hon. Gentleman had spoken of England as having an admittedly constitutional Government; but according to Mr. Cushing, the counsel for the United States, this was a mistake, for Mr. Cushing regarded Italy, Brazil, Switzerland, and the United States as constitutional countries, but held that England could not come within that category, Parliament having an arbitrary power of banishing and trying a King, introducing a new dynasty, changing the State religion, and confiscating the goods of the Church. Such a reign as that Mr. Cushing considered a régime of despotism. Mr. Cushing went on to argue, with reference to the Rule, that 2000 he could recognise no diligence but the diligence prescribed by the Treaty, and that Sir Roundell Palmer was endeavouring to establish Rules of "due diligence" which were outside of the Treaty—a path on which it was then too late to enter—and the American counsel took his stand on the explicit words of the Treaty, which subordinated general international law to the compact of the three Rules—which was retrospective—and which expressly applied due "diligence" to the special cases contemplated by these Rules. The Arbitrators seemed to have held the view of Mr. Cushing, and not that which was put forward by Sir Roundell Palmer. and what was the result? Why, in the Award of the Arbitrators there were laid down three of the most dangerous principles which it was ever endeavoured to incorporate into the law of nations. Indeed, as regarded the Motion, this was an undefended case, for his right hon. Friend (Mr. W. E. Forster) had not said a word in defence of any of the doctrines of the Award. What, for instance, did the Award say about coal? Under the second Rule it was held that the supplying of coal in limited quantities converted a neutral country into a "base of operations," because such supplies would assist a vessel to sail. But if coal was contraband for that reason, sails must be contraband also, and masts, and even water; and how, then, was such a Rule to be carried out? It could only be carried out by turning the whole country into a belligerent Excise, and having an exciseman stationed in every ship to see that no article was supplied to a belligerent vessel, or even exported in order to be put on board such a vessel. It was idle to say that this was not the consequence of the second Rule. The casting vote of Count Sclopis in the case of the Shenandoah was expressly given under that Rule, and, in his judgment, in the case of the Florida he also dwelt on the question of coal. Mr. Adams was extremely cautious not to commit himself on the subject of coal, as would be seen by reference to the Blue Book, and the infinite danger we incurred under the Award was shown by the fact that on the very last day the Arbitrators sat, Viscount Itajuba, who had signed the Award, entered a protest against the doctrine of coal, because he wished it to be understood that it was safe to supply 2001 coal in some quantities, showing that under the Award it could not be supplied at all. But the Article went further; it went to the whole doctrine of what constituted a base of operations, and extended that doctrine to every transaction whatsoever that could be entered into with respect to a belligerent vessel. Therein lay the infinite danger of the doctrine; and it extended not only to vessels like the Alabama, but to the commissioned ships of the oldest established nations in the world. It applied to the French fleet and to the British fleet. Suppose there was war between France and Germany, and that the French fleet coaled or watered at Heligoland, the German Government would have a right under the Award to make us responsible for everything that occurred in consequence. We could not be safe under these circumstances unless we forbade the exportation—he might almost say, the trade in coal altogether—not only in England, but in every part of the Queen's dominions. Why, they were about to pay in the case of the Shenandoah a million of money for the acts of officials in Australia over whom the Government of England had no control whatever. Could anything be conceived more monstrous or fraught with greater danger to us than such a doctrine was? He passed to the second point—the doctrine as to commissioned vessels. That doctrine it was impossible for a civilized nation to receive. If the Arbitrators had taken the wise and prudent course of laying down the principle that a vessel illegally armed originally ought to have been excluded from the ports of that country from which she had obtained her armaments, they would have enunciated a principle which though not established in international law, was wise in itself, and might be received by civilized nations. But what they said was that under the first Rule commissioned vessels of war were to be seized and their departure prevented. It was true that Sir Roundell Palmer and Sir Alexander Cockburn said that was not what the Rule meant. But the Rule was so ambiguous that it did not exclude such a construction, and the Arbitrators placed that construction upon it. His right hon. Friend the Vice President of the Council (Mr. W. E. Forster) had asked why in the world they should be in such a hurry to do 2002 anything in this matter? Why, a war might break out in Europe to-morrow, and commissioned vessels of one or other of the belligerents might obtain coal or water in one of our ports. Under the Rule they were bound to seize such vessels, but under the Foreign Enlistment Act of 1870 they were bound not to seize them. What would be the position of England if one belligerent demanded that under the Rule the vessels should be seized, while the other, to whom the ships belonged, demanded that under the Foreign Enlistment Act they should be let go free? How could they escape a quarrel with one or the other under such circumstances? If they were not going to condemn the Rule, then they ought at once to suspend the Standing Orders of the House and repeal the 32nd section of the Foreign Enlistment Act. But the adoption of the doctrine of the Award was a thing which no nation would stand. Suppose the British fleet in time of war took in some coal or water at a neutral port, and our adversary should call upon the neutral Government to seize it. Was it to be supposed that the British fleet would allow itself to be seized? Or suppose the French fleet, in a war with Germany, should take in coals at Heligoland, and afterwards anchor in the Downs. Ought the German Government, under the Award, to have power to insist on our seizing that fleet, or, in other words, to insist on our instantly declaring war against France? And this was the doctrine that was to contribute to the peace of nations! He now passed to the question of "due diligence." He admitted that the phrase was an ambiguous one, and one difficult to define; but what he complained of was that the Arbitrators had attempted to define it, and had given it a wrong definition. They said that the diligence was to be proportionate to the risk of the belligerent. [Mr. W. E. FORSTER: In exact proportion.] His right hon. Friend reminded him of a word he had omitted. It was to be "exactly proportionate" to the risk of the belligerent. What did Mr. Adams say upon that point? Speaking of duo diligence, he said—This may naturally grow out of the great difference in the relative positions of the two belligerents, which ought properly to be taken into consideration. In the struggle which took place in America 'due diligence' in regard to the commercial interests of one of the bellige- 2003 rents meant a very different thing from the same words applied to the other.That was a true commentary upon the doctrine of the Award, and that was what each belligerent would say if this doctrine were allowed. "My commercial interests," they would each say, "are very different from those of my adversary. You must, therefore, carry out the law on a totally different principle with respect to him and to me." The true rule was impartiality of action. They could not attempt to reach equality of result. That had always been the principle of international law. They could not enter into the constantly varying circumstances of the belligerents, but they could be perfectly impartial in their action to both, and leave the result to be what it might. Each and every one of those doctrines violated some cardinal principle of the law of nations, and by each the position of neutrality was made absolutely intolerable. But his right hon. Friend (Mr. W. E. Forster) said they were not bound by the doctrines of the Award. He replied that if they did not protest against them, they were necessarily bound by them. The Chancellor of the Exchequer said the other night that the position of the Arbitrators was not judicial. He thought the right hon. Gentleman was wrong in that opinion. The Treaty declared that they were to find, with reference to each ship, according to the law of nations, and according to the Rule agreed upon. Anything more judicial than the position in which the Arbitrators were placed it was not easy to conceive. But then it was said that one case did not bind another, and that was true in reference to municipal law. When, however, they came to deal with international law, how did they argue? Why, they referred to the decisions of Lord Stowell, Chief Justice Marshall, or Chancellor Kent, as hereafter—if they were not now repudiated—nations would refer to the principles laid down at Geneva, and rely upon them in support of their claims and arguments. They could not separate the Award from the Rules. They were like Coke upon Littleton, you could not separate the commentary from the text. Or they might be likened to the Siamese twins—if you endeavoured to disjoin them you must kill one, and probably would kill both. In one form or another it behoved the House of Commons to repudiate the 2004 doctrine of the Award. If they did not, the condition of neutrals would be intolerable and the area of war would be extended. They should do it now in time of peace, for in time of war it would be too late. If, however, they took that step now, and a war arose in Europe six months hence, should a claim be made against them they could point to the fact that they had not accepted, but on the contrary had protested against, the principle of the Award. When he heard the right hon. Gentleman speaking on the question of conciliation there came into his recollection a great speech—one of the greatest on international law which the records of Parliament possessed—he alluded to a speech by Lord Grenville upon the great Maritime Treaty of 1801. The right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) the other night made a claim which, speaking from the Liberal side of the House, he could not altogether yield. The right hon. Gentleman claimed a monopoly of Lord Grenville for the Conservative party, but he could not help thinking that the right hon. Gentleman might have remembered the fact that Lord Grenville declined to join Mr. Pitt in his last Administration because Mr. Pitt was not in a position to take Mr. Fox into the Government. He therefore thought it would be a fair compromise if the right hon. Gentleman would permit the reputation of Lord Grenville to be equally divided between the two sides of the House. Lord Grenville, then, commenting in 1801, at the time of the Peace of Amiens, upon the Treaty with Russia, said—Conciliation is indeed desirable; it is so always, and it is now indispensably necessary as our last resource against certain and imminent danger. But to conciliate, by the surrender of just rights and of essential interests, to purchase present ease by the sacrifice of future strength, is a system which all experience, and all history have condemned, a system not less impolitic and ruinous in its effects than it is weak and disgraceful in its principle. But in the present case, one sentiment alone can prevail both in Great Britain and in Russia. The desire of every friend of peace, and every lover of justice, throughout the world, must be the same. All must concur in wishing that a precise and unequivocal arrangement on all the matters to which this treaty has relation, may confirm and strengthen the dispositions of friendship, between those to whom Europe still looks for its preservation, and may stifle the seeds of every possible difference which could either interrupt their present harmony, or embarrass their future exertions. 2005 By loose and uncertain stipulations on these important concerns no interest is promoted, no right is asserted, no principle is finally established. From ambiguity and doubt confusion and discord only can arise."—[Hansard—Parl. History, xxxvi. 255.]This was language worthy the greatest Foreign Minister whom, he believed, England ever possessed, and if they were to repudiate these uncertain and ambiguous principles in what way was it to be done on the present occasion? They could, but would they protest against the Rules? The Lord Chief Justice of England had already done this in the masterly document he had drawn up. The right hon. Gentleman the Chancellor of the Exchequer the other day took him (Mr. Harcourt) to task for saying that the Lord Chief Justice was upon the Geneva Arbitration the representative and the vindicator of the honour and the conduct of England, and it was further alleged against him (Mr. Harcourt) by the right hon. Gentleman, that he had imputed to the Lord Chief Justice conduct inconsistent with his position. It was, however, a singular fact that the Lord Chief Justice had since received the thanks of the Queen, which were directed to be presented to him by the Foreign Minister on the express ground that he had seen to the interests of England upon the Arbitration. Further, the Lord Chief Justice was directed in another part of his instructions to defend the character of Lord Russell, which he also did in the document to which he had just referred, What he would suggest that Her Majesty's Government might do would be to send the Rules to foreign countries accompanied by the judgment of the Lord Chief Justice, and say that the judgment expresed the views of the Government on the matter. The only difficulty about such a course was that the judgment of the Lord Chief Justice commenced, with something like a condemnation of the Rules themselves, and that might introduce difficulty and confusion. What, then, were they to do with the Rules? They had never held water from the first. The question addressed by the Prime Minister to Sir Roundell Palmer, and to which he had already referred, showed that the Rules were considered unsafe and required to be explained in order to be understood, and carefully guarded in order that they might not be 2006 dangerous. The experience of the Arbitration had shown that they had grown more leaky than ever. The Rules could not be patched, and were not worth mending, but were, as a matter of fact, a piece of careless juridical slip-slop. The best thing Her Majesty's Government could do would be to withdraw them and ask the concurrence of the United States Government in such a course. And he thought there would be no difficulty in obtaining this concurrence. They might depend upon it that the United States was no more fond of the doctrines laid down in the Award than, the Government of Great Britain could be. Let them apply diplomatically to the United States Government, after due consideration, to draw up Rules which should be worthy the occasion and worthy the object for which the Rules were originally drawn. There were great jurists in this country in the persons of the Lord Chief Justice and the Lord Chancellor, and he ventured to say that the opinions of Sir Roundell Palmer were the opinions of the Lord Chancellor. In America there were jurists worthy the school of Marshall, of Story, of Kent, and of Wheaton, and he had no doubt that if America were properly applied to her Government would assist in the drawing of rules which could be offered without explanation or protest to the acceptance of the world. The policy of the United States had always been a policy of neutrality from the time of Washington downwards, and they had never been driven out of it except by the exigencies of civil discord. In fact, he thought they had gone a little too far in this direction. We had never been desirous to cut down extremely the belligerent rights of so great a naval power as England; and proposals to abolish the law of blockade, and the right to capture private property at sea, were demands to which England ought never to yield. In the Declaration of Paris we made great concessions to neutrals —these concessions were reasonable, and had worked satisfactorily; but, unfortunately, the tendency of these Rules of the Treaty of Washington was to reverse the whole stream of civilization. Every step before had been in favour of enlarging the rights of neutrals and securing their position; but the Treaty of Washington made the conditions of neutrality so intolerable that he was 2007 firmly convinced that if the Rules were passed into the law of nations there would be no condition endurable for any State except the condition of an ally, and when a war broke out there would be no condition for any Government to consider except which should be the side it was to take in the coming war. This legislation seemed to be a legislation against the principles of neutrality and dangerous to the future prospects of peace to mankind. With that conviction, totally irrespective of any consideration of parties, he felt bound to vote for the Motion of the right hon. Gentleman the Member for the University of Oxford.
§ MR. RATHBONE
said, the House and the Government ought to pause before accepting the dangerous advice which had been given by the last speaker (Mr. Harcourt). He could not but think that the Motion before the House entirely ignored, as our statesmen had been too much in the habit of ignoring, the greatest danger which threatened the maritime greatness of England, as well as the direction which the efforts to avert that danger should take. During the last American War a few Alabamas practically drove the flag of the second maritime Power in the world from the seas. It was not so much the 70 ships which the Alabama sank or burnt at sea that did this. It was the fact that by so doing she deterred shippers from shipping in American bottoms, and thus compelled the American shipowners either to lay up their valuable ships or to make a forced sale of them to foreigners. The danger which the Motion was framed to guard against, appeared to him to be unreal. There was very little danger that other nations, and least of all America, until recently the advocate of the extreme licence of offensive neutrality, would insist upon maintaining rules or interpretations of international law enforcing too strict an observance of the duties of neutrality. There was, on the other hand, the very greatest danger—nay, the certainty—that the naval greatness of England, as far as it was dependent on her Mercantile Marine, would receive a fatal blow in the first war in which she was engaged, unless she availed herself of the peculiarly favourable position in which the Treaty of Washington and the Arbitration of Geneva had placed this country for supplying precautions 2008 which were neglected in the Declaration of Paris. He urged on the House and the Government that it would be fatal not to guard against the dangers to which the precedents of the late American War, coming after the Treaty of Paris, had exposed the maritime greatness of England. By the opening of the Suez Canal, England had lost in the trade with the East what was previously the advantage of her geographical position. Now the commerce of the East to Europe would naturally stop at Odessa, Trieste, and Marseilles, instead of coming on to England to go back to Europe. Everybody prophesied that this would be the case; and it was only the energy and enterprise of our ship and steamboat owners, backed by the great capital of England, which had enabled this country to maintain, as it had so far done, its mercantile and maritime position in those waters; but if we permitted, as we were in danger of permitting, a large portion of the Mercantile Marine of England to be transferred to other countries, would it be possible to recover such loss of our position against the additional geographical difficulties with which we should have to contend? Liverpool, London, Hull, and Newcastle were now the head-quarters of the great maritime companies into whose hands so much of the carrying trade of the world was passing. But when, under the influence of numerous Alabamas, we had changed the points of departure for Eastern fleets, and Marseilles had taken the place of Southampton, and so on, would it be possible to recover this? Would it be possible to dispossess foreign maritime nations when they had once got hold of a trade so naturally their own? The Motion regarded only the effect of the Washington Rules upon us when we were neutrals. But they must also be considered in respect to cases in which we might be belligerents. It appeared to him that to us as neutrals they were no intolerable burden, and that to us as belligerents they were exceptionally favourable, and even vital to the interests of our marine and commerce in the event of war. These Rules only threw upon us the duty of enforcing our own laws as they now stood with the same business-like diligence which we should certainly use if our own interests were directly at stake by the fitting out of a ship in our own ports for the 2009 purpose of attacking our own commerce; and unless we could obtain this justice from other nations our carrying trade must pass, and to a very considerable extent, irrevocably pass, into the hands of other nations on the first war. So long as neutrality was imperfect, its violations were always likely to irritate a belligerent to declare war against a neutral. In the late American Civil War we were very near—few who were unconnected with America knew how near—affording a most fatal proof of this. Did the remonstrances and threats of the Northern States incline us to declare war against them? But he would point out the danger of war which we ran, after the Treaty of Paris, and after the escape of the Alabama, but before the Award of the Geneva Arbitrators. Was it not evident that not only Russia, but even the minor Powers thought they might hold an offensive tone towards England, because they believed, most erroneously, that she would not go to war while America was watching to avenge the escape of the Alabama? Would Russia have abrogated the Black Sea Convention in the abrupt way she did had she not entertained this idea? Was not, then, that erroneous idea just the very thing to lead to war? Before the Declaration of Paris in 1856, England in her twofold capacity of possessing the greatest Naval Power in the world, and of possessing the largest Mercantile Marine in the world, claimed and exercised not only enormous power of crippling the commerce of any nation which might be at war with her, but also of protecting and carrying on her own commerce. The Declaration of Paris deprived her of most of the power of crippling the commerce of another country, and of most of the power of protecting her own Mercantile Marine in the enjoyment of their commerce. Now the rights claimed by England frequently brought her into collision with neutrals, and occasionally into war with them, and therefore it was wise to abandon them. But just compare for a moment the position which other countries, and the position which this country occupied before the Declaration of Paris, with the position which they now respectively occupy. Before the Declaration of Paris we claimed and exercised the right of capturing ships and cargoes belonging to any enemy under any flag; 2010 and practically our great Naval Force gave us the power of almost annihilating the commerce of our enemy. By the Declaration of Paris we surrendered the right to interfere with the commerce of our enemy, except by an effectual blockade, or when carried on under its own flag. What, then, would now happen to our enemy in case of war? Simply, it would carry on its commerce under neutral flags, and sell its own ships to neutrals, which most nations would be enabled to do without too great a sacrifice; because the number of ships owned by any nation, except England, were not of greater value than capital available for ship-owning could be found to purchase. The House would see at once, therefore, that our power of injuring an enemy was enormously reduced; and, indeed, except as regarded blockade, was perfectly insignificant as to any possible effect upon the resources of an enemy, and, consequently, upon its power or willingness to go on with the war. Now, what was formerly the position of England in a war, and what would its position be now? Formerly cargoes were liable to seizure wherever found, and under whatever flag they were shipped. It therefore was the custom to ship in British bottoms, and to wait for a British convoy, which our great naval power enabled us to give. Now, if shipped under a neutral flag, our commerce would be free from capture, and, as long as any neutral ships were available, no one would wait for a convoy in order to ship in a British ship any valuable cargo; for, in addition to waiting, he would have to pay a higher premium for insurance than he would pay in a neutral bottom. Therefore, as every shipowner knew, the days of convoy were absolutely at an end. and if the precedents of the Alabama and the Florida could not be guarded against; if ships of war could be fitted out and allowed to sail from neutral ports to prey upon the commerce of England, every practical shipowner knew that the Mercantile Marine of England would be driven from the seas. A certain small portion of her ships might find employment by carrying cargoes of small value on which the rate of freight was of more importance than the rate of premium of insurance. For a time a certain portion of her ships would be necessarily employed, because there would not be neutral vessels to do the work. But the 2011 greater part of them would have to be laid up or sold at a ruinous loss to foreigners, for we could not continue to carry on a trade in which our shipowners would be at a disadvantage of more than 30 or 40 per cent as to net results as compared with foreign shipowners. When America was at war the quantity of ships which she had to sell found a fair market without any ruinous reduction of price, because the number was not excessive, and the shipowning power and capital of England were there to buy the ships. But who is to buy the enormous mercantile marine of England? You would have to offer ruinous concessions to induce people to do so. So that the loss of England would not only be on a much larger amount of property than the loss inflicted by such a process upon any other country, but the proportionate loss on every pound would be greater. Perhaps he should be told that the American Navy was entirely engaged in blockading, and, therefore, did not care to catch the Alabama, and that our immense naval power would be able to give a good account of any such attempts in future. Now, he quite admitted that our Navy would be able to give a good account of the Navies of any other nation; but if Alabamas were to be allowed to be fitted out in neutral ports, he believed that the protection of our commerce would be beyond its power. We should have to deal not with one, two, or three of such vessels; and the style of vessels which we were now building for the defence of our shores and for naval warfare were entirely unsuited to perform the minor duties of the police of the sea. Captains and Warriors were too expensive and cumbrous to do the work of catching Alabamas. It would require an immense number of light ships of war, especially built for the purpose, to perform this duty. Steamers could now be built with such small consumption of fuel that they could keep the seas without coming into port for months and months; and unless such a steamer comes into port how were you to find her? She would appear, say, first in the track of the Atlantic trade, burning or sinking half-a-dozen ships, and putting their crews in the last vessel captured; and then, before that vessel could reach a port and give the alarm, she would be half-way to the Pacific Ocean, capturing on her way some of our Eastern mer- 2012 cantile fleet; and before betraying her position there be in the Pacific. It was not the number of vessels destroyed; commerce was very sensitive; the margin for profit in shipowning was not large, and by enhancing rates of insurance it would compel the laying up or the sale of the ships. He need not attempt to show that the maintenance of our Mercantile Marine was essential to the maintenance of our national greatness as a maritime nation; but he thought he had shown the immense loss which would be inflicted upon England by the precedents of the late American war, unless they were cancelled by the new Rules of maritime international law which had been laid down, and which he hoped would be adhered to. The Washington Rules simply adopted the principles which we adopted in the Foreign Enlistment Act of 1870, and made them internationally binding. They were wholly in our favour as compared with any other country, in proportion as our marine and commerce were the greatest. No country had so much to gain by their enforcement; none had anything comparable to lose by their neglect. The real question was whether we were to sacrifice this safety, which we had obtained after such tedious negotiations and at so heavy a cost, and which only the exceptional circumstances of America had given us the chance of obtaining, in order that exceptional profits might be made in a few shipbuilding yards, in violation of the intention of our own laws. As a practical man of business, he would say a word upon the well-meaning but fallacious arguments which have been used by great statesmen and lawyers about protecting our manufactures. Nobody built a ship of war on speculation. There were too few customers for such an article, and it was perfectly easy for any man who was, building a ship of war for a nation with which we were at peace to give indubitable evidence that he was so doing. In following the shibboleth of non-interference with trade and manufactures we were in danger of licensing the building of pirates. It would have been better, in the interests of peace and of all great maritime countries, especially Great Britain, to extend the Declaration of Paris so as to protect from capture all private ships and goods, except in the case of an attempt to force a blockade or 2013 in the case of actual military necessity. But it would be madness to throw away an interpretation of international law which, though for the moment against us, seemed contrived for our special benefit in the long run. Having felt the inconvenience of an abuse of neutrality, the Americans had contended for the strictest precautions against such abuse in the future. We, on the other hand, had found ourselves in the unusual position of wishing to limit belligerent rights and of feeling the difficulties of neutrality. Next time our positions might be reversed. He thought he detected in the cautious manner in which the Leader of the Opposition alluded to this subject last night a warning to those who might not see as far as he did during the late American War. He trusted the Opposition would imitate that patriotic and statesmanlike forethought which he so conspicuously displayed throughout the whole period of the American War, and for which this country ought for ever to be grateful to him. In conclusion, he entreated the Government, in the interests of peace, not to lose the present favourable opportunity of inducing other nations to concur in the adoption of Rules that would prevent practices which had never abridged war a single day, but which, on the contrary, tended to increase its evils and to extend its area. Such a course would be not only just and humane, but in the end would prove to have been such a course as experience and sound statesmanship alike dictated. He therefore entreated the Government not to listen to the advice of the hon. and learned Member for Oxford (Mr. Harcourt).
§ MR. GREGORY
said, that the hon. Member for Liverpool (Mr. Rathbone), who had just sat down had treated the question purely from a commercial point of view, but it was one of much wider scope and much greater importance. It was a question which involved principles of right and wrong, of peace and war. He ventured to say that there was no such mutuality of advantage to be derived from the Award as was maintained by the hon. Gentleman. This country possessed ports and estuaries not only at home, but in every portion of the globe. In these ports and estuaries vessels might be equipped, and from them expeditions might sail which might bring us, in spite of all we could do to maintain our neu- 2014 trality, within the terms of the Award, and expose us to the claims of belligerents. And here he could not help expressing his surprise at the way in which Her Majesty's Government proposed to meet, or rather to avoid, the issue raised by the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy). He should have thought that Her Majesty's Government would have been glad to take on this subject the opinion of the country as manifested by the House of Commons, and he could not but believe that if they had done so at an earlier period of the negotiations which had led to this Treaty we should have heard but little of the disputes in which we were now involved, and which had occupied our thoughts during the last Session of Parliament. What he understood the right hon. Gentleman (Mr. W. E. Forster) to say was, that Her Majesty's Government had entered into a Correspondence with the Government of the United States with a view to some joint agreement as to the Rules, and that this correspondence had now ceased, and was in abeyance. But that seemed to be very much the position in which this country was placed at the time the negotiations failed between Lord Derby and Mr. Reverdy Johnson, and he could not help thinking that if at that period this House had been taken into the confidence of Her Majesty's Government, a Treaty would have resulted very different in its terms from that which had been imposed on us. He had been still more astonished by the statement of the right hon. Gentleman that the Arbitrators in their Award had not interpreted the Rules laid down in the Treaty. It appeared to him that they had not only interpreted the Rules in terms, but had gone still further by applying those Rules to their Award, and condemning us in three instances to heavy damages. He could not conceive any stronger interpretation of a principle than its application to individual circumstances, and any one in future seeking to enforce that principle would naturally cite the manner in which it had been applied. The case of the Shenandoah was a strong illustration of the extent to which the interpretation had been carried. It had been already referred to in the course of the debate, but he thought it deserving of consideration in detail. That vessel origin- 2015 ally known as the Sea King, was a screw steamer, built for the purpose of being employed in the China trade. She sailed from London apparently as a trading vessel, on the 9th of October. She arrived at Madeira on the 18th, and then took in an armament at some neighbouring island; a transfer of property, real or apparent, took place—a Captain Waddell took the command of her, under a Commission from the Confederate Government, and thereafter she passed as the "Confederate States steamer-of-war Shenandoah." She arrived at Melbourne on the 25th January, 1865, and immediately her Commander applied to the Governor for permission to make necessary repairs, and to take in a supply of coals. The Governor took the opinion of his proper Law Officers, who were of opinion that the Governor was bound to treat her as a ship-of-war belonging to a belligerent Power. Great precautions were taken in dealing with her; but information having been received that a number of seamen had clandestinely got on board and were concealed, a police officer was sent on board with a warrant. Captain Waddell, however, pledged his word of honour that there were no such men on board, and refused to allow the ship to be inspected, and declared he would fight his ship rather than allow it. The colonial authorities, however, did all that they could under the circumstances by denying to the ship the hospitalities of the port until they received the solemn assurance of Captain Waddell as a commissioned officer that there had been no violation of its neutrality. The repairs were then allowed to proceed, but they were carried on on a private slip, and the authorities required that there should be no unnecessary delay in completing them. On the 17th or 18th of February the American Consul received information that men were being shipped, and he put himself into communication with the Attorney General, who advised that he should make a declaration of the circumstances on which the authorities could act. The Consul however did not follow this advice, but applied to several other subordinate authorities who were unable to do anything without the evidence in question. This circumstance, however, was in fact immaterial, as the information given to the Consul was that the men would be shipped from one part of the 2016 shore, whereas they, in fact, got off from another, having concealed themselves for the purpose, and having been taken off in small boats to the vessel. The repairs were effected on a private slip, and a supply of 250 tons of coal was put on board, and the vessel left on the 18th February. So that, for the circumstances of a dark night, which enabled a party of seamen to steal on board unobserved, the negligence of a police officer—supposing he had the right and the power—to search the vessel, and the purchase of a few tons of coal, the British nation was made responsible for all the injury she had inflicted on the commerce of the United States, after leaving a defenceless port of a British colony on the other side of the globe. In addition to this, the Government of Melbourne was a distinct and independent Government, and yet the people of this country were held liable for its omissions, if omissions they could be called. The right hon. Gentleman to whom the case for the Government had been entrusted had gone so far as to say that the Act of 1870 imposed no new liabilities, and that it was only an extension and complement of the Act of 1819. Any one who read the former Act could not fail to see that our obligations had been materially extended, and were of a most onerous character. The building and equipping of a ship had now been put into two distinct categories, and both were made liable to penalties, even to the forfeiture of the ship. Under the 13th section of the Act the supplying to any belligerent ship in our ports of a mast, a sail, an oar, spar, or tiller would be "equipping" her, and for any one of these she was liable to forfeiture. It was a principle of international law that a belligerent observing the municipal law of the country had a right to call that municipal law into force against the other belligerent; so that we might be required on to confiscate any vessel which had been supplied in our ports with any of the articles described. He ventured to think such a condition of things would not be tolerated by any belligerent without involving us in war. There was another liability which flowed from the principles laid down by the Tribunal of Geneva. The rule formerly was that a country or Government could not be called upon to act except on evidence 2017 which rendered it reasonably certain that they would obtain a conviction in their own Courts. But according to the judgment and reasoning of the Arbitrators it appeared that a neutral was bound to take the initiative at the instance of a belligerent on any information, whether it were such as would justify them in instituting proceedings before their own Tribunals or not. Upon any hearsay report, rumour, or unauthorized information the Government might be called on to interfere. These were great and heavy liabilities under which no Government was safe. They could not ask any Government to accept them, and if they did he believed every country would repudiate them. They were unworthy of the English Government to recommend to any other country, and he hoped they would be rejected by the House of Commons.
§ MR. LAING
said, he thought the observation of the right hon. Gentleman (Mr. W. E. Forster) who addressed the House early in the debate from the Treasury Bench was absolutely conclusive as to the decision which should be come to by the House, that in order to approach the other neutral nations with advantage on the question of these Rules, it was necessary to come first to an amicable understanding with the Government of the United States, and he appealed to the House not to precipitate matters while the heats which had been engendered were still in force. He (Mr. Laing) himself had too much experience of the moderation and wisdom of the House to doubt that that appeal would be successful. Questions of vital national importance had been raised in the course of this discussion, and it was fitting that the opinions not only of lawyers, but of men engaged in commerce should be heard. The epithets "intolerable," "dangerous," "mischievous," had been applied to principles put forward in the Geneva Award, which he ventured to say men of common sense engaged in business would regard as of the utmost value to the permanent interests of the country. The hon. and learned Member for Oxford (Mr. Harcourt), who laid down the law to the House with so much authority, ought to have taken the trouble to be a little more accurate in getting up the facts and the law which he had presented to the House, for he had made some astonishing mistakes as to the state 2018 of the law on this subject. There was no principle more clear than that a neutral State could not allow any of its ports or dependencies to be made a basis for helping one belligerent to the disadvantage of the other; and the Chief Justice of England had declared it to be the law that coal would come under the category of contraband, if it was to be used as the motive power of a vessel intended for war. How did the facts really stand? What was objected to was the interpretation put upon the Three Rules of the Sixth Article of the Treaty of Washington by the Award of the Geneva Tribunal. It appeared to him that to the words "due diligence" a sharper definition had been given than was really meant by their authors. The Judgment of the Geneva Tribunal was not a decision of the international law upon the subject. Indeed, part of the language used might in one sense be considered as obiter dicta, although, no doubt, the whole carried with it a considerable moral effect to the world generally—an effect corresponding with what might be called an increasing public opinion against a resort to war, and in favour of the principles of humanity. The Judgment raised questions of great importance which it did not profess conclusively to solve. He agreed with the right hon. Gentleman opposite (Mr. G. Hardy) that it would be wise to endeavour at an early date—though not at present, for the conclusive reasons urged by the right hon. Gentleman on that side (Mr. W. E. Forster)—to come to a mutual understanding with the maritime Powers as to the precise definition of the Rules, so that we might not expose ourselves to be overtaken by another war while such important questions still remained in a state of doubt and uncertainty. But, after all, the general effect of the Rules was to render the equipment of vessels like the Alabama more difficult, and to make it almost impossible for them, even if they succeeded in escaping with full equipment from a neutral port, to cruise and prey upon the commerce of one of the belligerents. He maintained that nine out of ten persons would say that the effect of this Judgment, so far from being bad, was, on the contrary, conducive to the best interests of peace; and any Government consenting to be bound by it would be guilty of the gravest dereliction of duty if they let slip any opportunity of 2019 establishing principles of such vital importance to the welfare of nations generally. It appeared to him that those who regarded the decisions of the Tribunal of Geneva as limiting the rights of neutrals took a very narrow view of the important questions involved. He believed that their tendency was in the direction of peace and to induce all Governments to look upon war as a dreadful necessity, and only to be resorted to in the last extremity. It followed, then, that the duty of neutrals as well as of belligerents should undergo a complete revision. A similar spirit influenced the principle laid down in the Treaty of Paris, when it was agreed upon that a neutral flag should cover a neutral cargo. All those recent Treaties had sprung out of the feeling of horror of war, which was increasing in every civilized nation. The Lord Chief Justice of England, in his admirable and exhaustive statement in respect to the Geneva Award, referred to the growth of the new school of writers and jurists upon this subject. Amongst many other eminent writers on the subject of international law, M. de Tocqueville laid down the rights and obligations of neutrals with great strictness. They might be summed up in two conditions—the one was scrupulous impartiality; the other a complete abstention from all acts of war, of aiding or abetting either belligerent, or affording them an opportunity of obtaining arms or munitions of war. In fact, all the changes made of late years in international law, sprang out of the formation of what might be termed an international conscience and an extreme aversion to war. Whilst sympathizing most heartily with the general principle of humanity manifested in the recent Treaties and decisions, he certainly should not wish to see it pushed to an extent adverse to the interests of his own country; but he thought it was difficult to imagine a case now where such a contingency could arise. It was, in his mind, very bad policy to commit ourselves to a hard-and-fast line when endeavouring to effect a settlement of an international dispute by means of arbitration. The danger of following such a course became apparent in two recent instances—namely, of the United States of America and of Germany, two Powers with whom it was of the greatest interest to us to cultivate amicable relations. Our alliance with the great Em- 2020 pire of Germany being cemented by a community of interests and of feeling was the great safeguard for the preservation of the peace of Europe. Those relations were, however, to a serious extent impaired by what took place during the late war. The mischief done simply measured by pounds, shillings, and pence, far outweighed the inconvenience that would result from adoption of an opposite principle. It was for the advantage of England that greater stringency should be enforced that would prevent the recurrence of cases like that of the Alabama. By the adoption of these Rules, when a vessel slipped through their fingers as this ship did, all they had to do was to give notice to the belligerent Powers, and the vessel tainted with the original violation of the municipal laws would, on her being found in our ports, be detained. Under the adoption of such a Rule a vessel could not be covered with her commission, and thereby be enabled again to commence a mischievous career. This country had a number of fortified stations all over the world for the protection of our commerce. They were maintained at a great expense for the express purpose of giving us an advantage in case of war, and to act as a basis for coaling stations, and it would not be a matter of indifference to us if, in time of war with Russia, a vessel escaping from the United States and receiving a Russian commission could coal at San Francisco or any Pacific port. It was obvious that the establishment of the principle laid down in the Award would be enormously in favour of this country. If that were the case, and if we were to consider the disadvantages and grievance we might suffer as neutrals, he thought they would not be found so serious as to outweigh the advantages we should receive from the application of the Rules when we should chance to be belligerents. In the first case they had been mainly obviated by the passing of the Foreign Enlistment Act of 1870. It had been admitted that by that Act we were in a position very effectually to prevent the recurrence of what occurred during the American War. The law of England in that respect was considered far more stringent than that of almost any other Power; there was no chance of our altering it; and it was therefore our policy to induce other Powers to accept the same 2021 engagement. With regard to "due diligence" every case, the Arbitrators stated, must be judged upon its own merits, and the interpretation intended to be placed by the Geneva Tribunal on the construction of that Rule was not an arbitrary or impracticable interpretation, but such a common-sense interpretation as we should wish to see assigned to it. The inconvenience that might accrue to us as a neutral Power would not only be greatly obviated by the Act of 1870, but to a great extent also by the growth of public opinion, and its co-operation with the Government in preventing Alabamas from being built and fitted out in our ports. Whatever inconvenience might be thought to result from the interpretation put upon the Rules by the Commissioners, the House could not get rid of the Three Rules in the Treaty. When these collateral considerations were got rid of, the result was the loss of a little profit to shipbuilders and gunmakers in the emergency of a war arising; but there would be no practical difficulty in making regulations for the public interest — for the arrest of suspicious articles, subject to compensation if taken wrongfully. Against these slight losses and inconveniences that might possibly be experienced in case of being a neutral and other Powers being belligerents, there must be set off the enormous advantage that would accrue in the reverse case of our becoming belligerents, and having to deal with neutral Powers. The United States, no doubt, was the country from which we had most to fear in the equipment of vessels of the Alabama class in case of our being engaged in war. He felt much more highly the indirect advantages that would result from the adoption of these Rules than the direct advantages. A great deal had been said of the honour of the country being involved, and it had been asked whether we were to alter our municipal law at the dictation of foreign Powers. We had not done this, nor was it in the interest of any belligerent that we should do so. If we altered our municipal law, it was because we thought the change right and just, and not because dictation was employed by foreign Powers. There had been two instances in modern history when this country had incurred some considerable humiliation—that of Denmark and the United States. In the first in- 2022 stance it was the fault of the line of policy adopted at the first in taking our stand on a point that was afterwards proved to be untenable. With regard to the United States, when the complaint was first made and Arbitration suggested, England mounted the high horse and would not admit that any blame rested with her. This country also took in that ease its stand on a position that afterwards proved to be untenable; but in the most wise and patriotic manner, Her Majesty's Government and the Commissioners at Washington effected the best retreat in their power from that position, and they closed the question with great benefit to this country and the removal of the unhappy causes of difference that ought not to have existed between the two countries. In the case of Central Asia, by our frank acknowledgments towards Russia we were spared great humiliation, and we were treated with due consideration. It was said that England had been disgraced for ever, and all because some stipulation that was in its nature temporary, had been adopted. He warned the House that if they passed the Resolution of the right hon. Gentleman (Mr. G. Hardy) they would be preparing for themselves a bitter crop of humiliations similar to those which this country had before experienced.
§ SIR STAFFORD NORTHCOTE
said that when he listened to the speech of his right hon. Friend (Mr. G. Hardy), and observed how carefully he avoided anything that could be construed as a reflection upon the conduct of the Government in regard to the negotiations at Washington, or in the course subsequently taken, and also observed how very cautiously and respectfully he spoke of those distinguished persons who acted as Arbitrators at Geneva, although he disputed their conclusions, he felt that the question, which was undoubtedly of the highest national importance, had been placed before the House in a way that could give no offence, and which might challenge a reasonable and fair attention; and when his right hon. Friend sat down he hoped that some Member of the Government would rise, and although he might not accept the precise terms of the Motion, and might even, under the circumstances, deprecate a division, and although he might further take exception to certain parts of the Resolution with which he might be unwilling to agree, 2023 yet he did hope that whoever might rise on the part of the Government would place the matter in such a position before the House and the country that all might feel that the national interests would be safe in the hands of the Government, and that a course would be followed which would prevent the evils his right hon. Friend naturally, but perhaps wrongly, had anticipated might possibly result from the Award given at Geneva. He was, however, greatly disappointed when he listened to the very remarkable speech of the right hon. Gentleman the Vice President of the Council. Grave as undoubtedly the situation was before that speech was delivered, it left the House in a position infinitely more unsatisfactory than that in which he had conceived they could possibly stand. He had always thought that, somewhat checkered though the fortunes of England throughout the negotiations and the Arbitration might have been, we should have derived at least the one advantage that the question of the Rights and Duties of neutrals in time of war would have been settled and placed upon a basis which, whether we were or were not satisfied with the arrangement, would be one about which there could be no misunderstanding. He had always understood that it was one of the main inducements to us to enter into the Washington negotiations, that we should put an end to the uncertainty as to the rights and duties of neutrals which had led to the differences between ourselves and the United States, and that the advantage thus gained would be a compensation in regard to the Award that might be given against us. But what had the right hon. Gentleman opposite told them? He had told them that things were to be left in the same position of uncertainty as before; or rather, as he had understood the right hon. Gentleman's speech, they were to be left in a state of greater uncertainty than before. The right hon. Gentleman had told them, what they knew well enough before, that we were bound to accept the Award of the Arbitrators. Nobody had the least inclination, neither would it be consistent with the dignity of this country were we for a moment to question the Award as it affected ourselves in the particular cases under consideration. We might think that the Judgment had gone against us unexpectedly, 2024 and we might have had our own views on the subject; but we had accepted the Award frankly and without reserve. But when the House proceeded to consider that which was really the important question now under consideration, and upon which the right hon. Gentleman had dwelt so much—what was to be the rule of the future, what had the right hon. Gentleman told them? Had he said that we must accept the Dicta of the Arbitrators? Not at all. The right hon. Gentleman had said that he joined the right hon. Member for the University of Oxford (Mr. G. Hardy) in objecting to, and protesting against, many of the doctrines which the Arbitrators had laid down. But did the right hon. Gentleman altogether reject the Dicta of the Arbitrators; and was he prepared in any form to adopt the counsel of the right hon. Member for Oxford University, that in proposing these Rules to the other nations of the world for their acceptance we should qualify them by placing our own interpretation upon them? Not at all. The right hon. Gentleman said "Oh, dear no; as at present advised, we intend to do nothing at all until we hear from the United States what they are going to do." The right hon. Gentleman said that we must wait for the answer to our last communication with America; he had not given the date of the last communication, but it must be at least 12 months old. The matter, however, did not even rest there. The right hon. Gentleman had told the House further with regard to the Dicta about which so much had been said that, although we were bound by the Award, we were not bound by anything outside of it that had fallen from the Arbitrators. He also said that we were not bound by what might have fallen from our own Arbitrator, distinguished as he was, nor even by the arguments of our own Counsel. He said, however, that we were bound in honour by what we had laid before the Tribunal in our own Case, Counter Case, and Summary. Without doubt that was so; but what was to be inferred from that statement? If we were to be bound by our Case and Counter Case, by what were the United States to be bound? He supposed that, equally with ourselves, the United States would set aside the obiter dicta of the Arbitrators; but surely they would also believe themselves to be 2025 bound by what appeared in the Case, Counter Case, and Summary which they had laid before the Arbitrators. And here, of course, we should come to a dead-lock. We should have two opposing views of international law set forth in the respective Cases, each party bound by its own exposition of that law, and all that had taken place would go for nothing. Apparently we were left at as great a disadvantage as before. If that were the real position in which we were placed, it would be a most unsatisfactory and disappointing one. He had understood that when these negotiations were proceeding at Washington the object which the Government had in view was two-fold—that they had in view, in the first place, the special and temporary object of bringing to a settlement the differences which had arisen between this country and the United States; and that over and above that they had another more important and permanent object in view, that of settling the vexed question of international law which had given rise to those differences. The form of the proceedings which had been adopted at Washington was undoubtedly one which had occasioned some considerable embarrassment, because of the attempt which the Government were making to carry out both of these objects at once. The consequence was that in drawing up the Rules, which were to be at once the Rules for permanently settling the international law and the Rules to settle our temporary difference with the United States, both sets of Commissioners were placed in a very difficult position, because they had in a manner to look both forwards and backwards at the same time. They had to consider not only how the Rules would carry out the more important and permanent object, but how this or that set of words would affect the Case which was to be laid before the Arbitrators. Consequently, the operation of framing these Rules was very difficult, and he might say without offence that it was not performed in a thoroughly satisfactory manner. He felt very strongly at the time—and he had no doubt that everybody connected with the proceeding also felt—that that operation was being conducted under great disadvantages. He did not know what mode of proceeding would have been better, and undoubtedly any other mode would have been open 2026 to objections which it was unnecessary for him at that moment to go into. Had the course been, adopted of endeavouring to settle the differences with America before entering upon the consideration of the question of what the future international law was to be, great difficulty would have been found in separating the two operations, and objections might have arisen which would have overweighed the advantages which such a course of proceeding might have appeared to offer. But, on the other hand, in attempting to do the two things at once, we found ourselves in this difficulty—our Commissioners were obliged to be excessively cautious not to allow anything to be inserted into the Rules that would admit our liability when we went before the Arbitrators; and, on the other hand, the United States Commissioners were obliged to be equally careful not to admit anything in the Rules that would prejudice their claims against us. The consequence was, that these Rules were framed in a manner which rendered them open to observation in respect of their not being either so full or so clear as they should have been with reference to the future. A great deal had been heard as to how far a Commission should exempt a vessel that had escaped from neutral territory from the consequences of her having committed a breach of neutrality, and also as to how she would be affected in the event of her having reached a port in her own country after having effected such an escape. These matters had been fully and fairly discussed by the Commissioners at Washington; but it was found impossible, in consequence of the number of questions which arose, to arrive at a satisfactory conclusion with regard to them, and consequently these matters were not mentioned in the Rules as clearly as was desirable. The position we now found ourselves in was this—The Arbitrators, in deciding upon the various cases brought before them, had uttered expressions and had embodied in their judgments principles which were extremely embarrassing with regard to the consequences of vessels commissioned or which had reached their own ports after fraudulently escaping from neutral territory. What he would bring under the consideration of the Government was, that it was desirable that we should now do that which we could not do at Wash- 2027 ington, and take the opportunity of endeavouring to settle these matters. It was obvious from the confession of the right hon. Gentleman opposite, and from the general sense of the House, that it was impossible that we could rest satisfied with the Dicta—which were, in fact, something more than mere Dicta—which were embodied in the Award of the Arbitrators at Geneva with regard to commissioned ships and ships which, after violating neutral territory, had reached the belligerent port. Under these circumstances, it was necessary that we should come to some arrangement on the subject. These matters could not be allowed to remain as they were, resting upon what were conceived to be the principles of international law, because the principles of international law were very vague, and difficult to determine, and could only be said to be determined when you got hold of a principle upon which all nations had practically signified that they agreed. If you found a general principle upon which nations had agreed, you might assume that principle to be a part of international law. But a principle which one nation maintained to be correct and another incorrect, could not be so accepted; nor could the question be settled by writers, however eminent. This was the view so ably put forward by the Lord Chief Justice. The question was one which could only be settled by agreement among nations; and this was the reason why certain views here were embodied in a Treaty, and why it was resolved to submit them to other nations in order that they might be incorporated into international law. The reasons which made it important that these views should be settled were as strong now as they ever were; but it was equally clear that if they were to be incorporated into international law they should be made plain and intelligible and such as all nations could accept. A good deal had been said as to whether such and such a Rule would be for the interests of England, or for the interests of belligerents or neutrals. We must view this question, however, not from the national but from the international point of view; we must not consider the Rules which were desirable in the interests of our own country, but those which all countries would be ready to adopt. He thought that the House might reasonably conclude that it would 2028 be impossible to expect the nations of the world to accept these Rules as they now stood with this Arbitration on record as an authoritative interpretation of them, unless there was some clear explanation, and probably some modification of them. It was very well to talk of the sayings of the Arbitrators as obiter dicta. He did not know precisely the definition of an obiter dictum; but principles inserted in the body of an Award as the principles upon which the Award was founded, were surely something more than obiter dicta. He should have thought also that when the Arbitrators explained the meaning of their decisions, these explanations were something more than obiter dicta. and when obiter dicta led to so very a substantial a conclusion as the payment of upwards of £3,000,000 by one nation to another, common sense suggested that, whatever name you gave to them, they must exercise as precedents an important influence upon the law of nations. We could not, then, as the Vice President of the Council calmly suggested, afford to leave the matter as it stood until the United States chose to take it up, meanwhile considering each nation bound by its own opposite view of international law; nor could we allow Great Britain by tacit assent to give colour to such principles as were laid down by the Arbitrators. He did not wish to exaggerate the importance of those principles. There had been a tendency in some quarters to do so, and to give a general application to principles which were only meant to apply to the particular case. But still there were one or two points upon which it was quite clear that very strong doctrine had been laid down. He would not, however, refer much to the doctrine of duo diligence. No doubt the standard set up for due diligence, taking the words literally, was one that it was almost impossible for any nation to act up to; and we might expect in any future arbitration that the standard would be somewhat lowered. But with regard to the position that the fact of a judicial decision having been obtained by the authorities of a neutral nation, in the case of a vessel, was to be held in no way to save the Government from responsibility, it was clearly such an extraordinary position that unless it was explained or qualified in some way he thought that it would be utterly impos- 2029 sible to get other nations to adopt it, and it would be an insult to ask them to do so. He paused on this particular question, because he wished to ask the House to allow him to call attention to the way in which the matter stood. He would quote the expressions of two of the Arbitrators with regard to this. Count Sclopis, as to the decision in the case of the Florida, said—The decision of the Admiralty Court might he considered as conclusive, even if not perfectly correct, as between those who claimed the vessel and the British Government, which claimed its confiscation under the clauses of the Foreign Enlistment Act; but I do not think it is sufficient to bar the claim of the United States against Great Britain. The United States were not parties to the suit; everything relating to it was, therefore, to them res inter alios acta.But the whole scope of the decision of the Arbitrators was, that neutral Governments, where there was reason to believe that a vessel was in fault, ought to proceed against it without notice, and without any action on the part of the aggrieved belligerents. That was the reading that he (Sir Stafford Northcote) put upon the clause with regard to notice. Well, the neutral Government took proceedings, went before the judicial tribunal, and failed in the suit. But, then, according to Count Sclopis, it was res inter alios acta because the aggrieved belligerent was no party to the suit. This view obviously placed the neutral Government in a difficulty. The aggrieved belligerent would have a double chance. If the suit went in his favour, of course all was well. If, on the contrary, it went against him, he would say—"I am not bound by the decision, because it is res inter alios acta." Then another of the Arbitrators, M. Stæmpfli, expressed his opinion that "as regards municipal law the judgment is valid; but as regards international law it does not alter the position of Great Britain." What an extraordinary doctrine! The question was, whether Great Britain exercised due diligence or not. It was admitted that the British Government proceeded against a vessel which there was ground for suspecting, and brought the case to trial in the only way open to them according to British law. It was further admitted that a decision was arrived at in a regular and formal manner; no allegation was made of corruption or fraud; yet we were told that having done all this, and the judgment 2030 being valid as regards municipal law, the position of Great Britain was not altered, and that those proceedings had no effect whatever. But he asked whether it was reasonable or possible that this could remain without challenge and without further inquiry? And was it not reasonable that those who were trying to introduce such Rules into international law should be prepared either to justify, or propose an alteration in, the decision of the Arbitrators? He did not wish to go into further discussion of the matter, as it had been ably discussed before; and his object in rising was principally this. He did wish to urge upon the Government that they should not resist and treat the Motion of his right hon. Friend in the spirit which it had been treated by the Vice President of the Council. He should be the last person to wish to throw a slur upon the Treaty, or upon the Rules included in the Treaty, and he should be the first to regret anything which might lead to the failure of an attempt which he believed was wisely conceived and courageously carried through. The objects which the Government had in view—especially the great object of endeavouring to settle the principles of international law—were worthy objects; and the Government undertook those negotiations with an earnest and firm determination, if possible, to bring them to a settlement conducing to the honour and interests of the country. With this view they spared no labour; they were prepared courageously and patriotically to face the sneers and the cavils to which some portions of the arrangement were sure to expose them; and he knew that they acted throughout with a sincere belief that what they were doing would be of advantage to their own country and to the civilized world. He thought he might venture to say for those who sat on his side of the House that at no period of these transactions had they shown any desire to impede or hamper the proceedings of the Government in this matter; that, on the contrary, they had endeavoured, as far as possible, to assist and forward the object of the Government so far as they could do so consistently with their own view of the public interests of this country. They had now arrived at a period when further action on the part of the Government appeared to be imperatively called for. It appeared to him — and if he 2031 gathered correctly the sense of a large portion of the House it appeared to them —that if they stopped where they were —he would not say with reference particularly to a quarrel with America, but in all other respects—they would leave themselves worse off than they were before the Treaty of Washington was negotiated. He would, therefore, urge the Government not to neglect the opportunity now offered to them, not to neglect an expression of opinion that was, he thought, almost unanimous, with regard at least to the spirit in which the Motion was conceived and the way in which it had been brought forward. He would ask the Government not to allow them, by ill-timed negligence, or by an unwillingness to move, to drift into what he believed would be a serious national and international embarrassment.
THE ATTORNEY GENERAL
rejoiced that it was his fortune to follow his right hon. Friend opposite (Sir Stafford Northcote), to the tone and temper of whose speech it was impossible to take the slightest exception. Yet in that speech—as in almost every other made in that debate—two somewhat inconsistent lines of observation had been followed. There was the discussion of the particular Motion before the House, which was one thing, and there was also the larger—and perhaps in one sense the more important discussion of the Treaty of Washington with the Three Rules embodied in it, and the interpretation put upon them by the Tribunal at Geneva. Now, the House of Commons ought to look carefully to the phraseology of the Resolution which it was now invited to pass. He did not impute to the right hon. Gentleman who had moved it the least intention even to embarrass the Government, still less to place the country in any false or embarrassing position. Still if the right hon. Gentleman (Mr. G. Hardy) would bring a fair and candid mind to the consideration of that question, he was sure that if he were in the position of one of the Arbitrators against whom his Resolution was directed, he would feel, in spite of what the hon. and learned Member (Mr. Harcourt) had said, that the Motion was a direct Vote of Censure upon him. He was sure the right hon. Gentleman, after such a vote, would feel that his position was intolerable, and that he had been treated contumeliously. It was to the 2032 Motion of the right hon. Gentleman that the House was asked to assent, not to what the Mover intended. He (the Attorney General) would appeal to the candour of hon. Gentlemen opposite to examine the terms of the right hon. Gentleman's Resolution. Let him suppose that the right hon. Gentleman, or any other person equally entitled with him to respect and reverence, were placed in the position of Arbitrator, and had delivered judgment in a suit between party and party. Suppose that he were selected, as those persons were selected, not merely for a competent but for an unusual acquaintance with the principles of international law, and that he had decided the case between party and party. Suppose that a body like the House of Commons were asked to declare—That, having regard to the oppressive and impracticable character of the obligations, hitherto unknown to international law, which would be imposed upon neutral nations,would it not imply that the person who interpreted those Rules either knew nothing of international law, or wilfully misapplied that knowledge? That was really what the House of Commons was asked to do in regard to the Arbitrators who had been selected by two great and independent nations to decide upon those questions. The question was not whether they agreed with the Arbitrators, nor whether, if they had been placed in their position, they would have come to the same conclusion as the Arbitrators had done; it was not even whether they might not think that in many of those matters the Arbitrators had, in fact, displayed what the right hon. Gentleman characterized by the terms of his Motion; but the question was whether it was wise, whether it was dignified, whether it could lead to any good result for the British House of Commons to pass with regard to an Arbitration by which they were bound, which they had thanked the Arbitrators for undertaking, and which they were to pay them for having undertaken, a Resolution which no man in his senses, and who was not arguing to defend a thesis, would deny to be a direct and very heavy Vote of Censure upon those who were the objects of it. Did the House seriously wish to put an end to all the good which had been or might be done by that Arbitration? ["Oh!"] He was surprised that any- 2033 one should deny that immense good had been done by it, although in this world there might be no good that was wholly unmixed. The question was whether Parliament was not, on the whole, satisfied with the Arbitration having been undertaken, and with the grave disputes between this country and America having been pacifically and satisfactorily settled by it. If they were satisfied on the whole, was it becoming a great representative Assembly like this to pass a Resolution in those terms when they must submit to and obey the decision of the Arbitrators? With a great deal of what had been said he did not intend to differ. He quite agreed that after the events that had happened the House was entitled to an avowal from the Government of what they held to, and to what they did not hold. [Mr. HORSMAN: And what they will do.] If his right hon. Friend would have some patience—and they had great patience with lam the other night—he would endeavour to satisfy him. The terms of the Motion and the course of the debate had been altogether beyond what the occasion warranted, and such as nothing in the Arbitration, or even in the language of the Arbitrators, justified. It was idle to talk of England altering her laws at the dictation of foreign Powers. England would remain true to herself, they might depend upon it. The honour and glory of England were as dear to others as they were to the hon. and learned Member (Mr. Harcourt), and he might rest satisfied that they would do nothing in this or any other matter at the dictation of foreign Powers. But let them use common sense. England was a member of the family of nations, and must be bound by those principles of conduct which civilized States had agreed among each other to adopt. Though it was true that as between Sovereign State and Sovereign State there was no power to impose a duty or enforce a law—and therefore when they spoke of international duties and international law they spoke in incorrect language and used words that were only imperfectly applicable to the subject-matter—still, if the municipal law of any particular nation was such as to render it inadequate to the performance of the duties of a neutral when war broke out, belligerent Powers, he did not say had the right to, but, as a matter of fact, would 2034 complain, and call upon it to make its municipal law adequate for that purpose. The Lord Chief Justice, in whose hands no one denied that the honour of this country was perfectly safe, laid it down distinctly that the duties of a neutral Government involved three things—first, that the law of the neutral should be sufficient to enable the Executive to prevent breaches of its duties as a neutral; secondly, that where the application of its law was called for, it should be put in force honestly; and, thirdly, that all proper and legitimate means should be used to detect any intended violation of that law. The rule so properly laid down by the Lord Chief Justice was that where the municipal law of a neutral was insufficient for the discharge of its duties, the neutral might fairly be called upon to alter it. It must either comply with this reasonable, and he might almost say Christian duty, or run the risk of war. Thus much for his hon. and learned Friend's heated appeal to the privileges of the House of Commons—privileges which nobody respected more than himself when appealed to in the proper way. He ventured to say that their best course, as far as the mere Arbitration was concerned, was to hold their tongue—["No, no!"]— to pay the money, and submit. A Gentleman who had been Chancellor of the Exchequer shook his head. [Mr. HUNT: I shook my head when you said we should hold our tongue.] They were obliged to pay, and they had better pay without words. But he admitted that that was not the whole question. Let them see by what principles they were bound. He apprehended that there could be no question that upon prinnciples of law—which were principles of common sense—in a mat of arbitration, they were bound simply by the decision, and bound by nothing else. The Arbitrators were not Judges, and they were not Legislators. If they were Legislators, and if they had laid down principles of international law, we should be bound by them; and if they were Judges we should be bound by their rationes decidendi. But they had no authority beyond that given them by the Treaty of deciding this particular point, according to the Rules and to international law; and as far as they had gone beyond this we were not bound by their decision. Nevertheless, although we were not bound by the strict letter of 2035 the law, still, in matters between nation and nation and on questions so important as this, what had been brought forward as the ratio decidendi, and still more what had been embodied in the Award by way of Recital, however little binding force it might have, might raise a state of things which might require, on the part of the Government of the United States, or of this Government, some distinct and definite declaration of opinion, how far they considered themselves bound and how far not. [Opposition cheers.] He was not conscious that in saying this he had gone an inch beyond his right hon. Friend—[Mr. W. E. FORSTER: Hear, hear!]—who intended to say as much, and if he had not done so had been misunderstood. Many of the speeches to which they had listened that night had conveyed two assumptions. The first was that they would have been better without those Rules at all; and the next, that those Rules introduced some new, unheard-of, and possibly even dangerous obligations upon the position of neutrals. A very little consideration would show that except upon one point, and that a rather doubtful one, those Rules were not new in any other sense than that, as the character of war had altered, and the whole character of the relations of neutral States had changed since the last great war, a number of circumstances had to be provided for and dealt with, which perhaps made it necessary to have a new statement of principles which were as old as the relations of civilized nations. The American Commissioners were anxious for the laying down of some new Rules of international law, and after much discussion the British Commissioners were empowered to agree to those Rules, on the footing that they should be binding for the future, and that as between the United States and ourselves our conduct should be judged as if they had been binding at the time of the depredations of these vessels. They were plain Rules of common sense, intelligible to ordinary understandings. The first Rule required a neutral to exercise "due diligence" in preventing the fitting out, arming, or equipping within its jurisdiction of any vessel which there was reasonable ground for believing was intended to cruise or carry on war against a Power with which it was at peace; as also in preventing the departure of such vessel, adapted wholly 2036 or partly within its jurisdiction for warlike purposes. Now this, excepting the last portion of it, was as old as international law itself. From the earliest times the sending forth of an armed ship had been held to be the sending forth of an expedition, and this being an obvious breach of neutrality, "due diligence" was required to prevent it. Objection had been taken to that phrase; but in these matters such general expressions as, "reasonable notice," "proper care," and "due diligence," were customary and necessary terms which could not be further defined, but which no fair-minded man would have any difficulty in understanding. In the administration of the law the construction of them was always left to a jury of twelve persons, and it might fairly be left to five distinguished men like the Geneva Arbitrators. He denied that the doctrine as to "due diligence" was new or oppressive in the slightest degree. The second part of the first Rule had occasioned some dispute. It was to the effect that the neutral was to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against a belligerent, such vessel having been adapted, in whole or in part, for warlike purposes. What had given rise to that provision? The Foreign Enlistment Act of 1819 was found not to meet such a case. The Court of Exchequer held that under the Act a fully armed vessel might be seized; but they were divided in opinion as to whether the Act applied to the case of a partially armed ship. The Rule was meant to meet that case, and was not a new principle of international law. And how was it oppressive? Why, in 1870 a further Foreign Enlistment Act was passed unanimously, and yet that Act was far stronger as a matter of municipal arrangement than this portion of the first Rule that was now said to be new and oppressive. Certainly it was not new, for the Treaty was entered into in 1871, and the Act to which he referred was passed in the previous year. But it might be said that its provisions need not be enforced. He could not concur in that view, for he held that, a law existing empowering a Government to prevent breaches of neutrality, a foreign Government would have just cause of complaint if that law were not enforced. So much for the first Rule. 2037 The second said that a neutral should not permit either belligerent to make use of its ports as a base of operations. Was that a new Rule? It was as old as the oldest international writer with whom he was acquainted. Was it consistent with amity that a neutral Power should allow itself to be made a base of operations against one or other of two belligerents? Surely not. And then came Rule three. which simply amounted to this—that having o agreed to two very excellent Rules, "due diligence" should be observed to carry them into full effect. Was that an oppressive Rule, as it had been called by his hon. and learned Friend the Member for Oxford? [Mr. VERNON HARCOURT dissented.] Well, if his hon. and learned Friend did not call the Rule oppressive, it certainly did not receive at his hands any great garlands of praise. He certainly said that the sooner the Rules were got rid of the better, and he added that in a great European war the Rules would be turned against ourselves.
§ MR. VERNON HARCOURT
My hon. and learned Friend is mistaken. He applies to the Rules the observations I made in reference to the doctrines of the Award.
THE ATTORNEY GENERAL
If his hon. and learned Friend denied that he said we should be bound by the Rules in case of war, his (the Attorney General's) recollection was at fault. Those who understood his hon. and learned Friend as he did should read the next sentence of the Treaty, which expressly provided that the Rules should be binding only as between the United States and Great Britain. In his humble judgment they existed long ago, and had been perfectly well settled and acted upon; but if they were new they bound nobody until they were brought to the notice of other nations, and they had agreed to them. He could not help thinking that they were exceedingly plain Rules, of which, in time to come, they were much more likely to have the benefit than any other nation. It seemed to have been forgotten that, on this occasion, the parts in the drama between ourselves and the United States were changed. Formerly the United States was the great neutral. England was the great belligerent. That was not so now, and. if the Rules were oppressive they would be more oppressive to the United States in time to come 2038 than to us. He gave the United States credit for an honourable observance and discharge of their international obligations, and he believed that, were we belligerents, there would be no disinclination on the part of the United States, being neutral, to be bound by the Rules which they had imposed upon themselves. He now came to the interpretation of the Rules—and he had no doubt that the Arbitrators, in the discharge of their functions, took a somewhat erroneous view of the duties imposed upon them. He could not help thinking that all they had to decide was a very definite question — namely, whether there was liability with respect to six or seven definite eases placed before them, and if so, to what extent. Having done that, their duty was discharged. But that was not the view which they took. and here, he must say, he differed very respectfully from the opinion said—he did not know whether correctly — to have been expressed by his right hon. Friend the Chancellor of the Exchequer, to the effect that it would have been better if the Lord Chief Justice had not delivered any Judgment at all. If the other Arbitrators had not delivered Judgments he should have been of that opinion. But they not only did so, but seine of the Judgments were delivered before argument; and at all events the Judgment of the Lord Chief Justice had the advantage of being delivered after argument and full consideration of the facts of the case. He could not help rejoicing that that Judgment was delivered. It would have been a source of regret had the other Judgments remained unanswered, and he could not help saying that the Judgment of the Lord Chief Justice was worthy of the occasion and —he could use no higher language—worthy also of himself. It was very desirable that our Case and our view should be stated, not by our Counsel, not by the person to whom our Case was committed, but by an Arbitrator in the discharge of an important and impartial duty. There was a good deal in the Judgments which he agreed in thinking might be discarded, and as far as the Recitals were concerned, there were seine which he thought untenable, though he could not admit they had all been dealt with in perfect fairness. With regard to the question of "due diligence," the mere expression of opinion on the part 2039 of the Arbitrators as to the mode in which the damages were to be assessed, in default of "due diligence" being exercised, was erroneously taken to be the Arbitrators' interpretation of the Recital. The expression of opinion assumed "due diligence," and did not in any way attempt to interpret it. They then expressed their opinions in reference to the mode in which damages were to be assessed. He confessed himself unable to understand the meaning of the word "exact" as applied to the proportion of injury likely to be sustained. A man was more to blame if by leaving open a door he knew he would be causing another man's death than he would be if his neglect was not likely to result in more than the causing a man to sneeze. The determination of the exact amount of culpability was, however a matter of considerable difficulty and delicacy. It would be unfair altogether to measure the blameworthiness in proportion to the consequences of events which could not be foreseen, and if that was the interpretation to be put upon the Recital he could only characterize it as untenable. A ship built bonâ fide in a neutral country might afterwards be commissioned by a belligerent Power, but the neutral could not therefore be held responsible for the damage done; the responsibility would be in proportion to the negligence by which a neutral Power permitted a ship so built within its borders to escape for the service of a belligerent Power. Mr. Adams, the United States Arbitrator, signed the Recitals and the Award; but they had the advantage of the separate opinion of the several Arbitrators, and it was very legitimate to look at the opinions to see what a particular person meant by a doubtful act. Mr. Adams expressly denied that he would allow the principle which the right hon. Gentleman (Mr. G. Hardy) supposed him to be contending for when he signed the Recitals to apply to the United States. He said the right to decide such a point rested exclusively with every Sovereign Power. If a vessel arrived at an English port furnished with a commission as a belligerent, and Her Majesty's Government recognised it in that character, however much he might regret it, he could not dispute the right of the Government to do so. He laid down as his opinion that which was directly contrary to the 2040 opinion which the right hon. Gentleman had placed on those Recitals. He (the Attorney General) now came to the last, which was a very important one. It had been assumed that this Recital was intended to cover the case of the Shenandoah, and to justify her condemnation on the ground of her increased quantity of coal. Those Recitals were placed before the Award, and contained the grounds on which the Arbitrators acquitted us as well as the grounds on which they condemned; and when they came to deal with this particular ease they stated their reasons for the way in which they had acted. They dealt with the case of the Shenandoah, but they put their condemnation of that vessel upon the augmentation, clandestinely effected, of her force. He quite admitted that if the Recital meant to say that a few coals put on board for the purpose of continuing the voyage would be an act which would make the port where the coals were obtained a base of operations, that that would be perfectly indefensible and inconsistent with international law. The Foreign Enlistment Act expressly condemned any ship dispatched to take part in a naval operation, and it had been held under that clause that a steam tug which towed a prize from Dover to Dunkirk was engaged in a naval operation; and perhaps there was not much difference between that case and the case of a lighter going out for the purpose of coaling a war steamer to enable her to go after the enemy. In 1862 we issued orders to our naval commanders, providing that no ship of war or privateer of either belligerent should thereafter be permitted, while in British waters, to take any supplies, except provisions or so much coal as might be sufficient to carry such vessel to the nearest port of her own country, and that no coal should be supplied again to any such vessel till after the expiration of three months from the time when she was last supplied in British waters. He would not, therefore, contend that the negligent or improper supply of coal to the vessel of a belligerent would not be a breach of neutrality fairly chargeable against us; but the matter was not quite so clear as it had been assumed to be by hon. Gentlemen. He quite admitted that although the Recitals were not binding, and although in his judgment there were many of them which were 2041 perfectly indefensible, yet they were so mingled with the findings of the Arbitrators themselves that any plain man might say— "You must take the Award with all that is in it." But if he (the Attorney General) were Her Majesty's Government he would do no such thing. He would not press upon foreign nations those Recitals in their present shape, and he thought it would not be advisable to put them before foreign nations without some distinct statement at the same time that we did not and would not agree to them, and that while we agreed to the Rules themselves in the sense in which plain men understood them, and the sense in which they were intended, we entirely dissented from the glosses, rather than interpretations, which had been put upon them by the Arbitrators. Now, if the question were asked, "What shall we do?" his answer would be, "Nothing." He did not think this was a favourable time to open negotiations with the United States for the purpose of arriving at an understanding as to how much or how little of these glosses, interpretations, or comments they agreed with us in accepting or refusing. That nothing could be done with the foreign Powers until the United States joined with us in urging them to accept these Rules he was perfectly satisfied. It was our bounden duty, not of ourselves, to bring these Rules under the notice of foreign Powers, but to do so in conjunction with the United States. This was not a party question. It ought not to be a party question. Every Member of the House, on whichever side he sat, ought to be as jealous with regard to the honour and character of this country as he was with regard to his own. He was quite certain that in what his right hon. Friend had said he did not intend even to do so slight a thing as to embarrass the Government. He was quite sure his right hon. Friend did not intend to do a far more serious thing—namely, to commit the country to an unworthy course, exhibiting herself to the civilized world as a country that barked and did not bite; that grumbled, but paid; that murmured, but submitted. If all that his right hon. Friend desired was to extract from the Government a distinct explanation of what they agreed to, and of what they dissented from, with reference to these Rules, he had abundantly obtained his object. If his right hon. 2042 Friend desired more, he (the Attorney General) thought he was not entitled to success; and if he should persevere, he was sure he would excuse him for saying that he hoped he would be defeated.
§ MR. DISRAELI
I have heard with much satisfaction from the Attorney General that Her Majesty's Government are prepared to disavow the interpretation which has been put on the Three New Rules by the Tribunal at Geneva, and that they undertake to make no representation to foreign Powers without at the same time communicating to them the interpretation which they place upon those Rules—being one contrary in every sense to the interpretation put on them by the Tribunal at Geneva—in accordance, it must be admitted, with the description given of them by Her Majesty's Government themselves, and especially by the Lord High Chancellor of England, who took so conspicuous a part in these affairs. The House will under these circumstances, I think, agree with me that the discussion in which we have been engaged this evening has proved of some advantage. The question is now placed in a much more satisfactory manner before the country, and many minds will in consequence be relieved from anxiety by the declarations which have been made on the part of the Government, and which I trust the Prime Minister himself will confirm. If he does so those declarations will, I hope, prevent any unnecessary division in this House upon a subject which, though of transcendent interest, is one on which we ought to cooperate as much as possible with the Government of the day, so that we may show a determination not to sanction interpretations of the new Rules which might imperil the future fortunes of this country in a manner which by some persons has not, perhaps, been sufficiently considered. I may remind the House that one of the great recommendations of these Rules made to us by Sir Roundell Palmer was that they were very precise in their character. Although he had doubts himself with regard to some portions of them, as to their expediency, in the first instance, he recommended them to the adoption of the House in consequence of their precise character; and I remember that he said—" I prefer them to the arrangements made by Lord Stanley with Mr. Reverdy Johnson, because they 2043 are precise; we know what our engagements are, and therefore we may be easy as to the future." But, unless the House of Commons had interfered, as it has done to-night, and unless we had received a declaration such as we have received from some Members of the Government, and which I have every hope will be sanctioned by the Prime Minister, it is quite clear we could not feel that easiness with regard to the future, which the Lord Chancellor of England seemed to contemplate. Sir, I look upon this question entirely with regard to the future, and I take the expressions of the Lord Chancellor to guide me. I heard with great regret that part of the speech of the Attorney General where he appeared to argue as if there was a proposal emanating from this side of the House to break away from the engagements of the Treaty of Washington and to reject the verdict of the Arbitrators, and as if there was some feeling of discontent and disappointment in consequence of the decision at Geneva which led us to appeal to the House of Commons to pronounce an opinion as to the interpretation which ought to be put on the new Rules.
THE ATTORNEY GENERAL
I did not allude to the right hon. Gentleman the Member for the University of Oxford.
§ MR. DISRAELI
I am very glad that you did not; for if such a charge had been made against any hon. Gentlemen on this, or even upon the other side of the House, I should have felt it my duty to vindicate them against any such imputations. But I do not want to remember what has passed on this subject. I regret much what has passed, but I am willing to believe that, upon the whole, the result has been for the public advantage, if we now act with decision and at the same time with prudence. The exercise of these qualities is absolutely necessary in our present situation. I do not grudge the verdict which has been given against us. I am willing to believe that the general course of this transaction, if it tends to maintain a thorough friendship between the two countries, is not to be deprecated. But I am convinced that, unless we arrive at some precise meaning as to the engagements into which we have entered by the intended introduction of the Three New Rules into the international law of Europe, 2044 we shall find ourselves involved in great difficulties, and that those who come after us will repent the course which we have taken and sanctioned. But it is only the future that I now wish to consider. I cannot help feeling that Her Majesty's Government have not given to this matter the consideration and attention which its importance and instant character appear to me to demand. Why, at the commencement of the Session the Prime Minister was under the impression that the Government had already communicated the new Rules to the Powers of Europe; but he afterwards learnt [Mr. GLADSTONE: The same night.] that that statement was made inadvertently. The same night—but what does it matter whether the correction was made the same night or a month after? The fact remains, that we had not communicated with the States of Europe; and that the matter was not considered to be of gravity and importance is evident from the circumstance that even the Prime Minister—the person most responsible for the communication—was really in absolute ignorance whether a communication had been made or not. Then, again, another Member of the Administration informed us that if the communication of the New Rules was made to foreign Powers, it would be made without note or comment. Why, that is the whole question before us. We are of opinion —and I think the House of Commons generally concurs in that opinion —that the communication should not be made without note or comment; and, if I understand the Attorney General aright, that is now also the opinion of the Government. If that be so—if the Government are convinced that in fulfilling the duty which they have engaged to perform under the Treaty, of communicating those Rules to Foreign Powers, they must accompany the communication with the precise interpretation which they put upon them—if, at the same time, they take steps to arrive at an understanding with the United States with respect to them, then this debate will, I think, not have been in vain, and the House will feel that it has done its duty in seriously calling the attention of the Government to the subject. There is one point, I should add, which was mentioned by the right hon. Gentleman the Vice President of the Council, 2045 The right hon. Gentleman on more than one occasion informed us that the last letter—I suppose he meant despatch—which was sent to the United States had not been answered, and from some expressions which he used I would infer that until that answer arrives no further steps will be taken by the Government to bring this anxious matter to a conclusion. Now, that is a course which I should say would be most unsatisfactory to the House. It is, I think, the desire of the House that whether an answer has or has not been sent by the United States to the last despatch of the Government, means should be taken—and there are usual and obvious means when despatches are not answered—to revive the memory of the United States on the subject. Nor can I suppose, under all the circumstances of the ease, the verdict of the Arbitrators having been of a character which has not a mortifying complexion for the Government of the United States, but that there would be every inclination on their part to meet us in a friendly and hearty spirit as to the interpretation to be placed upon the Three New Rules. I trust, therefore, that but a very little time will have elapsed before we shall have it communicated to the House that an understanding between the two countries has been arrived at in the matter. I am not quite clear that a joint communication is necessary under the provisions of the Treaty of Washington, but I doubt it. [Mr. GATHORNE HARDY: It is not necessary.] I think it is not necessary, and therefore question whether the Attorney General was warranted in his assertion on that point, unless he has the Treaty in his hand. It states that—The High Contracting parties agree to observe those Rules as between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them."—[Article vi.]There is nothing like joint action. ["Oh, oh!"] I say that without the slightest fear of its being disputed. I do not mean to say that it is not desirable that there should be joint communications. I merely wish to point out what are our engagements under the Treaty in the event of there being delay on the part of the United States, and what is the freedom of action of which we may avail ourselves, If the United 2046 States should not act with us with that unanimity which I think we are entitled to expect, it seems to me that it is in the power of the Government of the United Kingdom to determine what is the interpretation which they place on the three New Rules, on their own responsibility and by their sole communication to make that interpretation known to foreign Powers. I trust it may not be necessary to have recourse to such a step, and that there may be a joint communication; but there can be no joint communication unless the Government give more earnest attention to a matter of great public interest than it seems to me they have done hitherto. At all events, the sooner the Government can arrive at an interpretation of the Rules they have introduced, and the sooner they can prevail upon the Government of the United States to state what are their intentions upon this matter, the better it will be for the general interests of Europe and for the maintenance of the general peace. I cannot agree with one hon. Gentleman who has addressed the House that this verdict of the Geneva Tribunal is a matter of indifference. On the contrary, it is a verdict which will be appealed to in the future as an authority on the law of nations. On what does the law of nations rest if not upon authorities of this kind? I admit with the Attorney General that the law of nations depends upon Treaties; but the Attorney General will agree with me that the greater portion of the law of nations does not depend upon Treaties. It would be well if it did; but it would not be difficult to prove that much the larger portion of the law of nations depends on the authority of individuals—writers who have studied the subject, and who have become recognized in the countries in which they have flourished as high authorities on jurisprudence. But the high authority even of distinguished Judges and renowned philosophers writing on these matters will, after all, not be regarded with the same veneration and as having the same corporate authority as the decision of a Tribunal which had been appointed by by the greatest Powers in Europe to decide this question. We are now familiar with the proceedings of the Tribunal at Geneva; but 10 or 20 years hence this country, when questions similar to this 2047 may arise, and when they are being debated in this House and in other Assemblies, depend upon it the authority of the Tribunal at Geneva will be appealed to, and its decisions will be looked upon as forming part of the law of nations. Therefore, it is of the utmost importance that time should not be lost. This is not only a great but a pressing subject. If war were unhappily to arise in Europe, and if we fail to come to some understanding with the United States as to the general interpretation to be put upon these new Rules, and if we fail to take the precaution of communicating them, as we are bound by the Treaty of Washington to do, to the Powers of Europe, accompanied by the precise interpretation of the British Government upon them, we may find ourselves involved in disaster. I am not displeased at the prospect that the discussion of this evening should end without a division; and I hope there is a general concurrence of opinion that this matter can be no longer delayed, and I trust we shall hear from the highest authority that the best exertions of the Government will be given to bring it to a happy conclusion.
The first thing the right hon. Gentleman will hear from what he is pleased to term the highest authority is, that there is no change of view on the part of the Government with respect to the question connected with these Rules, and that it is a matter which has never been neglected. The right hon. Gentleman and the hon. and learned Member for Oxford (Mr. Harcourt) have obligingly reminded me of a lapse of memory on my part on the first night of the Session, on account of which I have already apologized to the House. I am, however, not indisposed to apologize to the House again, or any number of times the House may please. Perhaps the right hon. Gentleman is not conscious of what a lapse of memory can be; but I know of a case of a Gentleman who, having been Chancellor of the Exchequer, has charged as a high crime and misdemeanour the conclusion of a pecuniary arrangement which he himself had initiated. It would be invidious to enter into particulars; but there are Members of the House old enough to remember the circumstances, which attracted some attention at the time, and which I presume the right hon. Gentle- 2048 man has not forgotten. I deeply regret the lapse of which I was guilty; but it happened that I at the time confounded what I had read in despatches with regard to informal communications with actual statements upon the Rules, and I explained the same evening the error into which I had fallen. The right hon. Gentleman has found fault with a remark of my right hon. Friend the Vice President, who has stated that the last communication upon this subject had been made by Great Britain, and that therefore it rested with the United States to take the next step. The right hon. Gentleman thinks it most important that the subject should be resumed at once, lest by the outbreak of war we should become involved in difficulty. If, unhappily, a war should arise in Europe, and we, unhappily, should he involved in it, it would have nothing to do with this question. The question relates to an engagement between this country and the United States, and the nations of Europe have no concern whatever in it, nor does it enter into our relations with them. We are very far from thinking this is a subject in which there ought to be indefinite delay; but what is our position? Here is a complicated instrument, the Treaty of Washington, embracing the settlement of a large number of international questions. We began to deal with the subject now under consideration almost immediately after the conclusion of the Treaty; but we were interrupted in that correspondence by the occurence of a controversy on the subject of the Indirect Claims. That reminded us that, although there are great difficulties between the two Powers still remaining unexecuted, it may be wiser to look first to the execution of those conditions, and postpone until after they have been completed a proceeding such as that connected with the Three Rules, which concern the joint action of the two Powers towards the rest of the maritime Powers of the world. I wish to state this plainly, because I should deceive you if I gave reason to believe that we contemplated immediately pressing the United States to resume the correspondence. We think it better—especially now that we are approaching, as I hope, the satisfactory interpretation of the whole of those great transactions under the direct clauses of the Treaty—to wait until those 2049 matters are concluded before we resume the subject of the Three Rules. The right hon. Gentleman has also stated that he does not think we are in any way bound by the language of the Treaty to make a joint communication of these Rules. Whether we are bound or not, I should anticipate very little advantage from a separate communication. And I think a moment's reflection will show the right hon. Gentleman how little chance there could by any possibility be of procuring acceptance of these Rules in case the two Powers originally accepting them were unable to agree in submitting them. A joint communication was evidently contemplated by the Treaty, and a joint communication would alone afford reasonable promise of that attainment of the objects of the Treaty. Now, with reference to the debate, I may be allowed to commence my remarks by thanking the right hon. Gentleman (Mr. Hardy) for the spirit in which he introduced this question to the notice of the House. I must say it entirely fulfilled the purpose which the right hon. Gentleman had in view. I am also glad that the right hon. Gentleman found time in the midst of his closely-argued statement to do justice to the action of Lord Russell in regard to the difficult transactions which were under his management at the time when he was Foreign Minister. There is no man who has a keener sense of the national honour than Lord Russell, and no one who, with that keen sense of the national honour, knows better how to fulfil all the international obligations of this country, I am also obliged to the right hon. Gentleman for this—that, in the first place, he most usefully limited this discussion, and kept it within its proper bounds by entirely passing by the individual opinions and statements of the Arbitrators. If we were to enter into those statements, there would be no possibility of setting limits to this debate. The right hon. Gentleman recognized as the proper subject of his Motion the joint statements of the Arbitrators. I must also refer with satisfaction to the view taken by the right hon. Gentleman of the Three Rules themselves, because he said, had it not been for the joint statements of the Arbitrators and the colour they gave to the Rules, he would not have made the Motion and invited the attention of the House to the sub- 2050 ject. With that statement I am quite content. There are, however, one or two other statements of the right hon. Gentleman which appear to me to be hardly consistent. I greatly doubt whether he was perfectly correct in saying that the obligation to enforce international law could be limited according to the institutions of each country. And I here would venture to question whether it can be laid down as a universal proposition that the belligerent is bound to be content with the judgment of the neutral Court.
MR. GATHORNE HARDY
With respect to the first, that is not my statement. I said there was an absolute right to enforce international law, but no right to enforce municipal law.
I am very glad to hear that, and I am glad to observe that others should have laboured under the same misapprehension. Now, while there are conclusive reasons which must lead the Government to object to the adoption of this Address, there is no substantial difference between the right hon. Gentleman and ourselves as regards the practical object. From one point of view I am very sorry that this discussion has been raised; because, if I could, I would wish that the Members of the Government should keep a silence which is not binding on others, with respect to the declarations of the Arbitrators. But, while I regret that we have been obliged to open our mouths, I am as far as possible from complaining that a subject so legitimate and proper for discussion should have been raised by the right hon. Gentleman. I concur with what fell from my right hon. Friend near me (Mr. W. E. Forster), and with the Attorney General in his more detailed statement with regard to some of the propositions of the Arbitrators. They pass entirely beyond the limits and bounds of my understanding; they belong to a higher region of law, into which I am not able to follow; but after the full discussion which my hon. and learned Friend has entered into with regard to those propositions, I do not think it necessary for me to dwell upon them in detail, or even to refer to them particularly. But I would wish to point out where it is that I would begin to part company with the right hon. Gentleman (Mr. Hardy), treating this subject, I hope, in the same spirit in which 2051 he has treated it. After the very fair account that he has given of the Three Rules, I think he has done some injustice to his own admission by speaking of the Recitals of the Arbitrators as their interpretation of these Three Rules. I contend they are not an interpretation, speaking generally, of the Three Rules. I do not think it possible, for instance, to say with reference to a portion of the Recitals in the Alabama case, that because the measures taken were unsuccessful they did not satisfy the conditions of "due diligence." It surely is is not possible to contend that this is an interpretation of the term "due diligence." To hold and apply as a principle, that in the workings and administration of any Government upon earth you can never allow "due diligence" to have been used except where the means have been completely successful, may be a corollary or deduction, but, call it what you like, it is no interpretation of the Rule, because it has no just or fair reference to the meaning of the words contained in the Rule. When in construing the words a perfectly arbitrary consequence is sought to be drawn, and an enlargement made which can in no way be brought within the meaning of the words, we do injustice to the document in treating the Recitals as an interpretation. But an admission has been made by my right hon. Friend (Mr. W. E. Forster), and more fully by the Attorney General, that although the Recitals of the Arbitrators are in our view no interpretation of the Three Rules, and do not in the slightest degree, rightly considered, prejudice the Three Rules, yet we admit that they are important facts for the legitimate consideration of the House. It is impossible to deny that a certain relation is established between them and the Three Rules, unless something can be said to the contrary. Now, I think that is really the gist of the Motion of the right hon. Gentleman. I will now state very briefly why we cannot adopt the Motion. In the first place, I think that the effect of the Motion treating the comments of the Arbitrators as an interpretation of the Rules, is not perfectly just to the Rules themselves. My hon. and learned Friend the Member for Oxford (Mr. Harcourt) is perfectly ready to meet me upon that ground, because, differing entirely from the right hon. Gentleman opposite, and 2052 differing entirely from the terms of the Motion which he supports, for the Motion asks that the Rules may be disconnected from the instructions attached to them, he demands that the Rules may be cancelled altogether. The hon. and learned Gentleman, of course, would say—"If the Motion tends to disparage the Rules, so much the better." I am sure the right hon. Gentleman opposite, who sees the position in which we stand under the stipulations of the Treaty, has no such object. I must also say that I greatly doubt unless there were an imperative necessity—and I grant a necessity would arise if there-were a difference of opinion in the House as to the course taken by the Government — I say, I doubt whether, when the world might say that we were smarting under the decision which has been given, it would be a nodus vindice dignus if the House were to descend into the arena, and on the part of the people, in its representative character, should make complaints of this kind. The state of opinion abroad with respect to this question between America and ourselves has been by no means unequivocally in our favour, and I do think it is of great importance that we should take in uncomplaining silence the Arbitration itself, and not have it said that we gave signs of mortification while we were performing the process of disbursement. I am not going to make a verbal criticism on the Motion of the right hon. Gentleman. It is somewhat complex in the mode of drawing. The right hon. Gentleman invites us to make a representation not only with respect to the interpretation of the Three Rules, but with regard to the other principles of international law adopted by the Arbitrators. Now, I am sure he will see that the question whether the other principles of international law adopted by the Arbitrators, outside the Three Rules, are sound or are not sound, is a matter having no connection whatever with the interpretation of the Three Rules. All of us desire that the two subjects should not be mixed up together. There is another objection, which is solid and of considerable weight. The words of the right hon. Gentleman as they stand would call upon us to register a dissent from the whole of the principles recited by the Arbitrators. It is not to be a dissent from certain principles of the Arbitrators, but it is to be 2053 a dissent from the principles recited by the Arbitrators. Now, if the House could adopt a Motion of this kind, which I hope they will not, it would be a direction to the Government, and for the fulfilment of that direction they would still have to depend on the Government of the day. I take it for granted the right hon. Gentleman would not desire to give that direction unless he saw something in the views and explanations of the Government which was not satisfactory. There appears to have been some misunderstanding as to the terms used by my right hon. Friend the Vice President of the Council, which were afterwards more fully and satisfactorily developed by my hon. and learned Friend the Attorney General, and although I am going to point out an important distinction, I do not really think it can possibly be made the subject deliberately of any difference of opinion between the two sides of the House. What was said by the Attorney General was this. He has admitted that the gloss, as be called it, on the Rules will, though illegitimately and improperly, be held to stand in some relation to the Rules, and to be of more or less authority, perhaps, in the determination of similar cases if they arise; and that, in consequence, although we hold these Recitals of no authority, it is our duty to ascertain that when we proceed, as we trust we shall proceed, in conjunction with the United States, to recommend the Three Rules to the acceptance of the other Powers, we shall recommend them totally disencumbered of these Recitals—that it is our duty to place them outside of the Rules, to destroy all connection between them, and to take care that there is no mistake or ambiguity whatever in that respect. That, I think, is in substance what he said. The criticism of the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) took a somewhat wider sweep than the speech of the right hon. Gentleman the Member for the University of Oxford, for he says he understands the Government to be engaged in recommending the Rules to the maritime Powers to put on them the most decided and precise interpretation. Negatively, I agree with the right hon. Gentleman—we recognise it as our duty to take care that, as far as we are concerned, these Dicta of the Arbitrators—these Recitals, the rationes 2054 decidendi, are not allowed to enter into the question; but if he means that we are to place a substantive interpretation on the Three Rules—a comment to be framed on the text—then I say, first, that it is by no means implied in the Motion; and, secondly, I think such a course would be open to considerable objection. How are you to offer along with Rules which are to form part of international law a comment as to the light in which they are to be regarded? That comment must be of equal authority with the Rules themselves if it is to be of any value at all; and if it is to be of equal value with the Rules themselves, it ought to constitute a portion of the Rules. That would be travelling back to where we set out from, and we should have at last to aim at an entire re-construction of the Rules. With regard to the Three Rules I refer for their exposition to the argument of my hon. and learned Friend the Attorney General. With one single exception, I am aware of no ambiguity attaching to the Rules. The Rules passed through the ordeal of the Geneva trial, and stand well. As truly stated by the hon. and learned Member for the City of Oxford (Mr. Harcourt) there was a point which rose immediately after the conclusion of the Treaty, with regard to the application of the second Rule. It appears that Mr. Fish was of opinion that some supplemental explanation between the two Governments would be requisite, and as far as that goes I admit it will be necessary that some substantive step should be taken. That has reference merely to an isolated point, and in no way enters into what has been in dispute to-night. As to the dispute to-night I do not understand that the right hon. Gentleman the Member for Oxford University asks us to lay down a number of substantive doctrines of international law over and above what are involved in the Three Rules. To such an engagement, as I understand it, this Motion certainly does not bind us. It would be totally impossible to determine these matters by abstract general Rules. If that be so, I trust I am correct in my statement that, so far as I am aware, there is not any substantive difference of opinion between us. I hope I have clearly, if imperfectly, re-stated what the Attorney General gave as his own opinion—namely, that you have a right to expect that we should take care that our 2055 recommendation of the three Rules does not carry with it, in whole or in part, in substance or even in shadow, so far as we are concerned, the Recitals of the Arbitrators as being of any authority in this matter; and I hope the right hon. Gentleman the Member for Buckinghamshire will see that I wish to give the proper interpretation to the words he used as to precision of language. I may state that I heard the speech of the hon. and learned Member for the City of Oxford with very different sentiments from those with which I listened to the speeches of the right hon. Gentleman the Member for the University of Oxford (Mr. G. Hardy), my right hon. Friend the Member for North Devon (Sir Stafford Northcote), and my hon. Friend the Member for Orkney (Mr. Laing). I feel that the concordant expression of opinion generally manifested in the House will tend to strengthen the hands of the Government. The object sought will thus be better attained than by the adoption of a Motion which would rather have a contrary effect, and appears to me open to grave objection.
MR. GATHORNE HARDY
said, that after the statement of the right hon. Gentleman, and the distinct disavowal by the right hon. Gentleman and the Attorney General of the Recitals of the Arbitrators, he would, with the permission of the House, withdraw his Motion.
§ Amendment, by leave, withdrawn.
§ Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.