§ LORD COLCHESTER
, in rising to move the Resolutions of which he had given notice, in reference to the declaration respecting Maritime Law signed by the Plenipotentiaries recently assembled in Congress at Paris, said, he regretted that a subject the importance of which could hardly be overrated, had not fallen into abler hands, and felt that he must claim the indulgence of their Lordships while he stated the reasons which had induced him to bring it forward. In so doing, it would be his duty to impugn the decision of persons of the highest station and the greatest abilities, who had been chosen by their respective Sovereigns to negotiate a treaty of peace and deal with other important questions; but he was sure that the noble Earl opposite (the Earl of Clarendon), the principal Plenipotentiary of England in the Conferences at Paris, as well as the representatives of the other Powers, would not attribute to him any want of personal 482 courtesy in venturing to call attention to what he could not but regard as a surrender of important rights and privileges hitherto enjoyed by this country. He had been surprised to hear it stated that in bringing forward this question, he was Calling upon their Lordships to discuss again the treaty of peace. That certainly was not his intention. The treaty of peace had already been fully discussed in that House, and their Lordships had expressed a favourable opinion of it. He certainly should not attempt to renew that discussion; but those who examined the declaration respecting maritime law would observe that the subject did not come before the Plenipotentiaries until some days after the treaty of peace had been signed. The two questions were perfectly distinct; and, indeed, the introduction by Count Walewski of the subject of maritime law was so little expected by the other Plenipotentiaries, that two of them—Count Orloff and Count Buol—stated that they could not enter into the consideration of it at all until they had received fresh instructions from their respective Sovereigns. The treaty of peace was signed on the 30th of March, but the maritime law declaration was not mentioned in the Conferences till the 8th of April, when it was introduced by Count Walewski, the French Plenipotentiary, who stated to his colleagues, that having concluded a treaty which provided for the pacification of Europe, he wished them to conclude their work by a declaration which would constitute a great advance in international law, and as at the Congress of Westphalia, liberty of conscience was asserted, and at the Congress of Vienna the slave-trade was abolished, and the freedom of rivers established, so at the Congress of Paris the basis of an uniform maritime law in time of war, as regards neutrals, should be laid down. He (Lord Colchester) cordially acknowledged the excellence of the objects the French Plenipotentiary had in view; but the question he wished to submit to their Lordships was, whether the principles laid down in the declaration respecting maritime law were really such as would render war less inconvenient to neutrals, while maintaining the belligerent rights of those unhappily engaged in hostilities. The declaration contained four separate principles or maxims. It was to the second of these that he chiefly desired to call the attention of their Lordships; but, at the out jet, he 483 might make one general observation—namely, that the whole of the new maxims were expressed in language so concise, that they could hardly fail to lead to different constructions when practically applied in courts of law. The first stood thus in the English version, "Privateering is, and remains abolished." In the original French the words were, "La course est et demeure abolie." Whether the English version was a correct translation or not he would not presume to say; but in a published work on maritime law, in which the same principle was expressed in the same words, the phrase, "La course est et demeure abolie," was translated in English, "Cruising is, and remains abolished." The first point to which he would refer was privateering—the first article laid down. There could be no objection to this article; but it was important to know whether other nations would agree to it, and it might be doubted whether the words were sufficiently clear. On this point his noble Friend (the Earl of Ellenborough) appeared to have doubts, which he would, no doubt, explain to the House. With regard to the fourth Article—that relating to blockades. The principle laid down in that Article was only a confirmation of the existing law. As to the third Article—that relating to articles contraband of war, and declaring that neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag, it laid down a maxim which, taken by itself, was very proper, and was consistent with the decision of British Courts; but it must here be considered in connection with Article II., and the term "contraband" should have been defined, being now so differently held by different treaties and general maritime law. The second maxim, that "the neutral flag covers the enemy's goods," was a principle contrary to the existing law of nations as laid down by American as well as English lawyers, and never admitted by England except in treaties where the principle of seizing neutral goods in enemy's ships was also inserted. This was maintained successfully in argument against the Prussian Memorial, in 1752, and by arms against the Northern Confederacy, in 1801. Coming down to later times, and to the writers of other countries, he found, in the United States, Chancellor Kent laying it down as the law of nations, that two distinct propositions had been recognised—namely, that the enemy's goods 484 found on board neutral ships might be lawfully seized as prize of war, and that the goods of neutrals which were found on board of enemy's ships were to be restored. These principles had been incorporated into the jurisprudence of the United States, and laid down by the Supreme Court as the law of nations. The question was, in fact, first raised in 1752, on the cession of Silesia by Austria to Prussia. One of the points then raised was the payment by Prussia of a certain sum of money due by Austria to England. To this payment Prussia demurred, and put in a counter claim, on the ground that England had confiscated her Vessels contrary to the law of nations. The proposition of Prussia was, that by the law of nations the goods of an enemy could not be taken on board the ship of a friend. The answer of the English law officers was, that the contrary of this was a rule that could not be disputed, and that it could not be more strongly proved than by the fact that exceptions had been made in particular cases. This reply to the Prussian Memorial was declared by Montesquieu to be a reponse sans replique, and was practically admitted to be so by Prussia, who paid the monies which had raised the question. The next occasion on which this question had been maintained by the English Government was in 1780, during the war of American independence. At that time the Empress Catherine of Russia, along with Prussia and other Northern Powers, resisted this right on the part of England; but England exercised the right most efficiently. He found in the papers of Lord Malmesbury, afterwards published, the following statement, which would show how rigorously it had been maintained.The Empress, Catherine II. herself, in speaking to Sir James Harris, called her 'armed neutrality,' an 'armed nullity;' and Prince Potem-kin, as the friend of Harris, said to him, 'Content yourself with destroying its effects; the resolution itself is immovable. As it was conceived in mistake and perfected by vanity, so it is maintained by pride and stubbornness. You well know the hold of these passions on a female mind, and if you attempt to loosen you will only tighten the knot."—Mahon's History, vol. vii. p. 16.In 1793, the English Government continuing its old system, Russia and Prussia, and he thought Spain, all abandoned their policy of 1780, and came round to that of England. In 1800, Russia again put forward her claims of 1780, and George III., in opening the Session of the first 485 United Parliament of Great Britain and Ireland, in 1801, said:—Under these circumstances, a Convention has been concluded by that Court (Russia) with those of Copenhagen and Stockholm, the object of which, as avowed by one of the contracting parties, is to renew their former engagements for establishing by force a new code of maritime law, inconsistent with the rights and hostile to the interests of this country. In this situation, I could not hesitate as to the conduct which it became me to pursue. I have taken the earliest measures to repel the aggressions of this hostile confederacy, and to support those principles which are essential to the maintenance of our naval strength, and which are grounded on the system of public law, so long established and recognised in Europe.The events which occurred soon after that date—the victory of Copenhagen and the death of the Emperor Paul—were well known to their Lordships. Russia ultimately gave way; it was agreed that her flag should not cover enemies' goods or contraband of war; and that principle was acted upon until the end of the war in 1815. After 1815 the law was maintained down to 1854, when Her Majesty's Government thought fit by an Order in Council, to waive a portion of her belligerent rights. He thought, therefore, he had established some ground for that clause of his Resolution which declared that Great Britain, although occasionally waving the exercise of this right by special treaties, had invariably refused to recognise the abandonment of a principle which successive Governments had concurred in considering identified with her national greatness. In some cases, indeed, there had been a waiver of the right; but it had been admitted by all writers on international law that they were a departure from that law; and the statesmen of this country had avowed that the sanction of Parliament ought to be obtained before taking such a step. When in 1787 a treaty of commerce was concluded with France by Mr. Pitt, and Lord Lansdowne, who had been Prime Minister as Lord Shelbourne, in supporting the commercial articles on the part relating to the neutral code, said:—The neutral code struck at the distinguishing forte of England—that power which more particularly belonged to her. Heartily concerned, therefore, as he was, that the article appeared in the treaty, he hoped that no mention would dare to be made of it in another, without the advice and sanction of Parliament."—Hansard, Part. Hist., xxvi. 564.]In fact, the grievances complained of by neutrals, in former wars, had arisen more 486 from disregard of the established maritime law than from its proper exercise. The Berlin and Milan Decrees were issued in violation of the ordinary law of blockade; and the British Orders in Council of 1807 were only justifiable on the ground of retaliation, and were measures adopted, not in pursuance, but in disregard, of the established law of nations. The Berlin Decree, dated November, 1806, declared the British Isles to be in a state of blockade. The British Order in Council of January, 1807, prohibited the trade of neutrals between ports from which the British flag was excluded; and the Order of November, 1807, imposed a total blockade of those ports. These, orders professed to be retaliatory against France, and without reference to that character they could not be defended. The Milan Decree, dated the 26th of December, 1807, imposed still stronger pressure upon British commerce and British maritime warfare. The establishment of the British Orders in Council of 1807–9 was, doubtless, a great and signal departure from the ordinary administration of justice in the ordinary state of the exercise of public hostility; but was justified by that extraordinary deviation from the common exercise of hostility in the conduct of the enemy. But, after all, what was the great grievance of which neutrals complained? Why, that they were liable to detention and search. To that grievance they would still be subjected. Contraband of war was expressly excepted from the arrangement, and how could belligerents know whether a neutral vessel had contraband of war on board without stopping and searching her? If the Plenipotentiaries had condescended to so small a matter, and had endeavoured to regulate the mode of exercising the right of search, they might have been able to mitigate the evil; but as it was, the matter was left just where it was before. He thought the system proposed by the recent treaty was objectionable in principle, as tending to prolong wars by depriving the stronger belligerent of the power of reducing his enemy to sue for peace in consequence of exhaustion; as under that system the weaker Power might carry on his commerce, notwithstanding the destruction of his own marine, through the means of neutral vessels, and for the same reason he would also be able to employ all his seamen in ships of war without crippling his commerce. Was it likely that the stronger 487 Power would submit quietly to such interference on the part of neutrals, and might not other nations besides the original belligerents be thus involved in quarrels? Many circumstances concurred to render it a matter of extreme regret that a question of such great importance should have been decided without any previous reference to Parliament. Plenipotentiaries assembled in Paris, for totally different purposes, had undertaken the settlement of a subject which had no legitimate connexion with the duties assigned to them. This appeared a very anomalous proceeding, and what made it still more objectionable was, that there was reason to apprehend that the question had not been discussed with the deliberation due to its importance, but that, on the contrary, it had been hurried over with unbecoming expedition. The whole matter was arranged between the 8th and the 16th of April and, when allowance was made for the delay of sending home for instructions, it would be seen that the question could scarcely have occupied the attention of the Conference for more than two days. Moreover, the power of the Crown to assent to changes introduced under such circumstances might hereafter be called in question. It was not quite so clear that such a declaration as that to which the Plenipotentiaries had subscribed their signatures would be binding in a court of law. The maritime law, which was a portion of the law of nations, had frequently been asserted to be also part of the law of the land, and it remained to be seen whether British Plenipotentiaries could sign away the law of the land without the consent of Parliament. He would not take upon him to say that they had not such a power; but assuredly the question was one of great national importance, and eminently worthy of the attentive consideration of their Lordships. The noble Lord concluded by moving to resolve—That the most eminent Jurists of all Ages have accepted as a Principle of International Law, that the Right of capturing an Enemy's Goods on board of neutral Vessels is inherent in all belligerent Powers; that the Maintenance of this Right is of essential Importance, and its Abandonment of serious Injury to a Power whose main Reliance is on her Naval Superiority:That Great Britain consequently, although occasionally waiving the Exercise of the Right by specific Treaties, has invariably refused to recognise the Abandonment of a Principle which successive Governments have concurred in considering identified with her national Greatness:488That this House deeply regrets that a Principle so long and so strenuously maintained should, in the recent Conferences at Paris, have been suddenly abandoned, without the previous Sanction or Knowledge of Parliament, by Plenipotentiaries assembled for the Purpose of discussing the Terms on which Peace with Russia might be concluded, and the Affairs of the East satisfactorily adjusted.
§ THE EARL OF CLARENDON
The noble Lord (Lord Colchester) having done me the honour to make particular allusion to me in the commencement of his speech, I beg to acknowledge the tone of good temper in which he has brought this question under your Lordships' consideration. A vote of censure was never proposed with greater courtesy. I shall endeavour, on my part, to imitate the example of the noble Lord by carefully avoiding the introduction of irritating topics, which, indeed, can nowhere be more out of place than in discussing a question of great national importance. I trust, however, that I shall be able to convince your Lordships that the Resolutions of the noble Lord contain statements which are inconsistent with facts, and that you would not be consulting either the honour or the interest of this country in pledging yourselves to the principles he advocates.
The noble Lord lays it down as a principle that the right to seize enemy's goods on board of neutral vessels is so closely interwoven with the law of Europe, and so necessary for our safety as a great maritime power, that it would not conduce either to the dignity or the welfare of England to surrender it. But if you affirm this doctrine, you must do so in an absolute and unconditional sense—you must give it no limitation either as to place or time—you must accept it everywhere and for ever; and this I cannot but think would be a most unwise and injudicious proceeding where change is the visible law of society, and where everything is rapidly undergoing variation around us; more particularly would it be unwise and injudicious to take such a course with respect to a matter which the noble Lord himself admits has been repeatedly altered to meet the exigencies of the times, and against which all the great maritime powers of the world have constantly and consistently protested. It is true, as the noble Lord observes, that the principle that enemy's goods under a neutral flag are a lawful prize of war has been laid down in treatises so long ago as the 11th or 12th century, and that a declaration to that effect 489 is to be found in the Consolato del Mare, a treatise written in the Provencal tongue in the 13th century; it is quite true also that Grotius defends that principle. I think, however, that we should always bear in mind that jurists are apt to state the law as it is, without making reference to the law as it ought to be; and, consequently, we find jurists defending the right of belligerents to put women to death, to kill prisoners after surrender; and to torture captives before a besieged town in order to induce it to submit. We can, however, no more rely on jurists in their defence of such practices than on the opinions of eminent lawyers in this country who formerly supported by argument and by the weight of their authority some of the worst parts of our ancient penal code. The noble Lord has also quoted the judgments of eminent men in this country, more particularly on international law; but I think we have no more right to presume that their opinions would now be the same on international law, which is founded on reason, justice, and the common consent of civilised nations, than we have to suppose that the judges who formerly supported some of the worst parts of our penal code would now maintain such opinions. Upon this subject the eminent men of former days would probably, if they lived in the present day, take into consideration the great changes, social, political, and moral, which are constantly taking place, and would have given due weight to the natural results which flow from an increased intercourse with other civilised states. Nor can I altogether admit the proposition laid down by the noble Lord that we are justified in resorting to extreme measures in order to hasten the termination of war; for I consider all such generalities dangerous, and by a rule of that kind we might be justified in resorting to some of the most barbarous usages of uncivilised tribes. Neither can I admit that in war we are to be governed by other principles than those which regulate our conduct in the ordinary transactions of life. War may be mitigated by the duties of humanity, and a heavy responsibility weighs on those who having the power to mitigate it, yet refuse to do so. The noble Lord, in his Resolutions, says that the jurists of all ages have been favourable to the principle he lays down; but, since the Resolutions have been laid on the table, I have looked into the writings of men of eminent authority—such as Hübner, Rayneval, Martens, 490 Chitty, Pardessus, and Wheaton—and all those writers contend that the principle laid down by the noble Lord is a relic of barbarous times, that the old maritime law-should be relaxed and replaced by the principle that free ships make free goods. It has been, and still is, the great object of modern civilisation to mitigate the miseries of war, and to define and extend the rights of neutrals. This has been done with respect to war by land, but not with respect to war by sea. By land we should think it disgraceful to seize the property of neutral and peaceful persons—even subjects of the enemy;—but that is not the case by sea; and we even give licences to bucaniers to seize the property of peaceful merchants on the ocean. There is no assignable reason for this difference, except, perhaps, that the acts committed by sea are less under observation than those committed on land, and the force of opinion is, consequently, less brought to bear on the former. The present state of the maritime war shows, indeed, but little improvement upon the customs of the most barbarous ages. The earlier nations copied it from the Roman law; and the Roman law, it must be remembered, was not the law of nations, but the municipal law of Rome. The Romans might have been perfectly justified in applying it to their own people. Those jurists, however, who copied the Roman law and applied it to international rights did that which they were not justified in doing. A belligerent power has an unquestionable right to blockade the ports of an enemy, and to prevent the enemy being supplied with munitions of war; and the neutral who attempts to break that blockade, or supply the enemy with munitions of war, may lawfully be interfered with, because by so doing the neutral, in point of fact, abandons his neutrality, and departs from the impartial character the circumstances impose upon him. If, however, the neutral fulfils the obligation of neutrality we have no claim to interfere with him. Were it otherwise, in the late war we should have been justified in sending an English fleet to Memel to demand all Russian property that might happen to have been there; or the French in inarching an army into Belgium to seize all Russian property at Antwerp. By the present law of Europe, however, we cannot deny that neutrals have a right to go to the ports of the enemy which are not strictly blockaded, or of the blockade of which a public and sufficient notice has 491 not been given; and we cannot deny that they have a right to go thither to trade except with contraband of war. It is only when neutrals are conveying enemy's property from one port to another that we claim the right to interfere; and we not only do this by authorising the commanders of our ships of war, who are men of honour and are responsible, to stop neutrals, and bring them into port in order that it maybe determined whether their cargoes are enemy's property or not; but we claim the right to delegate the power to privateers whose only object is plunder, and who only differ from pirates, the common enemies of mankind, in the fact that they are protected by a Royal licence. It is against this violation of the neutral flag that neutrals have always protested, and against which they will always continue to protest, and they must ultimately succeed—for they have reason and justice on their side.
The noble Lord in his Resolutions admits that the right to seize enemy's goods in neutral vessels has been occasionally waived, but he says there are but three treaties in which the right has been waived. Now, what are the treaty engagements of this country in this respect? The first English treaty on record which contains the principle ''free ships, free goods" is that of Westminster in 1654, between John IV. of Portugal and Oliver Cromwell. In the 23rd Article of that treaty it was declared,—That all the goods and merchandise of the said republic or king found on board the ships of either or their people or subjects shall remain untouched.This treaty was confirmed by the treaty of Whitehall of 1661—it was reconfirmed in 1703, and remained in force until 1810, when it was annulled by the treaty of Rio Janeiro. For 156 years, then, the invariable rule of our intercourse with Portugal was, "free ships, free goods." With France, in the year 1677, we concluded the treaty of St. Germain-en-Laye, the eighth article of which treaty declares that—Merchandise of the enemies of the Most Christian King shall not he taken or confiscated it they are found on board the ships appertaining to, the subjects of Great Britain, though the said merchandise make up the best part or the whole lading of the said ships, but still with an exception to contraband of war.And similarly with regard to the merchandise of the enemies of Great Britain on board the ships of the Most Christian 492 King. These stipulations were the rule of our amicable relations with France, as established by treaty for the next 116 years. From 1677 to 1793 we concluded with France five treaties of peace and three treaties of commerce, and in every one of them (except that of Ryswick, which makes no mention of the matter, and only lasted five years) there is an article which either expressly contains the provision that the flags of England and France should protect the goods of their respective enemies, or which renews the Treaty of Utrecht, in 1713, which lays down that provision in the fullest manner. The Treaty of Utrecht is to this day the basis of the commercial relations between England and France. With Spain our first treaty which recognised the rule of "free ships, free goods" was in 1665. From that time to 1796 we concluded thirteen treaties with Spain, in every one of which there is an article to that effect, or one renewing a treaty which contains it; therefore, for the 131 years ending with 1796 the rule of our intercourse with Spain, as established by treaty, was "free ships, free goods." The Treaty of Madrid, in 1814, ratified and confirmed all treaties of commerce which subsisted between England and Spain in 1796 referring especially to the Treaty of Utrecht; so that if we had seized any Spanish ship during the late war, it must have been restored. It is declared by the seventeenth article of the Commercial Treaty of Utrecht between England and France, that—It shall be lawful for all the subjects of the Queen of Great Britain, and of the Most Christian King, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandise laden thereon, from the places, ports, and havens of those who are enemies of both, or of either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy; whether they be under the jurisdiction of the same prince, or under several. And it is now stipulated, concerning ships and goods, that free ships shall also give freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either of their Majesties, contraband goods being always excepted.The seventeenth article of the Treaty of Commerce of Utrecht is repeated verbatim in the twentieth article of the*** 493 Treaty of Commerce of Versailles of 1786. This treaty terminated with the war of 1793. Therefore, from 1677 to 1793, the all but invariable rule of our friendly intercourse with France—the rule for at least seventy-five years out of eighty years of peace—was that free ships should give freedom to goods. It is worthy of remark that by the Commercial Treaty of Utrecht of 1713, which continued in force, except during periods of war, for the subsequent eighty years, the subjects of one party were entitled by treaty to carry on the coasting and colonial trade of the enemies of the other party. With Holland we concluded various treaties, beginning with the Treaty of Buda in 1667, all of which contained the rule, and these were continued down to 1780. In the interval between 1654 and 1793 we were six times at war with France, seven times with Spain, and three times with the United Provinces of Holland, and we terminated those wars by six treaties with France, seven with Spain, and three with Holland, all of which recognised the rule. During the same time we concluded with those Powers and with Portugal eighteen treaties of commerce—in all thirty-four international engagements—in all of which, with the exception of the treaty with France in 1667 and the treaty with Holland in 1784, the principle was recognised that the ships of one party being neutral should make the goods carried by them neutral also. I therefore do not think that there can be anything inconsistent with the honour and interests of this country in recognising at the end of this war a rule which we have so frequently recognised during the last 125 years in conjunction with all the great maritime Powers of Europe. It is perfectly true that these engagements have been frequently violated, and by none more flagrantly than by ourselves. In 1793, in conjunction with the Dutch, we declared all the French ports blockaded, though we never sent a single ship to enforce the blockade. We declared, by our decrees, that there should be no trade between France and her colonies, and we entered into a league with Russia, Prussia, and the Emperor of Germany to prevent any such trade being carried on. The noble Lord himself said most truly that, the French and English Governments—after the French Revolution, which in reality led to all these infractions of international engagements, and without which all the treaties to which I 494 have referred would still be in force—combined together, and vied with each other, by orders in Council and by the Berlin and Milan decrees, in violating to their utmost all the rights of justice and the ties of international obligations. That was a practice which the noble Lord himself has condemned.
§ THE EARL OF CLARENDON
The different measures taken by the Northern Powers at various periods have shown their anxiety and determination to resist these violations, as they were considered, of international law. These Powers concluded between themselves forty treaties, in thirty-one of which the principle "free ships, free goods" was recognised. The United States immediately after the Declaration of Independence in 1783 concluded a treaty with Sweden which still exists, and they also concluded a treaty with France, in both of which the principle was recognised. In more recent times the United States have also concluded treaties with the different States of South America, as they severally declared their independence, in all of which the principle was recognised, with this reservation, that it should be adopted by both belligerents. In the course of the last two centuries 130 international engagements have been made between the principal Powers of the world, in all of which, with eleven exceptions, the rule "free ships, free goods," is contained. What I deduce from that is, that in time of war, and in the heat and animosity of war, men lay aside this principle and resort to extreme and violent measures; but that when at peace, and under the influence of reason and judgment, they never hesitate to declare that that should be the rule of civilised nations. And yet the first act which your Lordships are called on to do after the conclusion of this war, is to pronounce a judgment which shall condemn this universally acknowledged principle, and reverse the rule we have almost uniformly observed in concluding treaties.
What was the state of things when the war commenced in 1854? It was indispensable that our co-operation with France should be as complete by sea as by land; but the principles of the maritime law of the two countries were diametrically opposed to each other. The French respect enemy's goods on board neutral vessels, but they confiscate neutral goods on board 495 enemy's vessels; while we, on the contrary, confiscate enemy's goods on board neutral vessels, and respect neutral goods in enemy's vessels. It is needless for me to dilate on the confusion which would have existed, if each Power had continued to hold to its own principle. The difference of practice would have led to the greatest dissensions between the two fleets; all cooperation would have been impossible, and the neutrals would have had the greatest right to complain of the different treatment which they received from the French and English cruisers. The French cruisers would respect all goods on board neutrals, the English cruisers would have refused to do. Between the two, there would have been no loophole of escape for them. It is quite plain, that the only wise and rational course was, for each to abandon its own system, and each to assimilate its practice to the general maritime law of Europe. And now, my Lords, let me ask, having once waived these rights, was it possible, or was it prudent, for us to return to them? This is not a question of law, but of policy. It is not even a question of international law—it is a question only of the law of England. Every other maritime Power in the world has protested against our practice, and at the commencement of the war England was the only Power which upheld the right of seisure. If your Lordships could be aware, as I was, of the strong feeling—of the intense anxiety—of the neutral Powers at the commencement of the war, to know whether we meant to adhere to the rule which we had hitherto maintained, you would then fully comprehend the great importance of the question. Almost daily inquiries were addressed to me by the representatives of the neutral Powers, and though I certainly cannot say that the maintenance of our former rule would have led to another "Armed Neutrality," it was quite plain that we should have stood alone in the world—we should have had every other maritime Power against us, and most properly so—because we should have been maintaining a law which was contrary to the public opinion of the world, which was hostile to commerce, and as unfavourable as possible to a mitigation of the evils of war. We should not only have stood alone in the world—but it was quite clear that we should have been at war not only with Russia, but with every other maritime Power in the world; or, if not actually at war, in a position of ft most unpleasant character with other 496 nations, and especially with the United States. Whenever there has been a war between maritime Powers, England has almost invariably been a principal in it, and seldom or never in the position of a neutral. The United States, being rarely engaged in war, and therefore always in the position of a neutral, has been naturally looked up to as the protectors of neutral rights, and your Lordships will recollect the difficulties in which our maintenance of our extreme rights involved us with the United States in 1812. The tonnage of the United States was then somewhere about 1,000,000 tons, but last year it was no less than 5,300,000 tons. I will ask your Lordships, would the Americans have quietly submitted to the imposition of our law and practice? Would any other nation do so? Should we, do your Lordships think, have allowed any nation on earth to inflict serious injury upon us in carrying out a law which we do not recognise? I will read to your Lordships the note of Mr. Marcy, acknowledging the receipt of the Order in Council issued at the commencement of this war:—Department of State, Washington, April 28, 1854.The undersigned, Secretary of State of the United States, has had the honour to receive the note of Mr. Crampton, Her Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary, of the 21st instant, accompanied by the declaration of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, in regard to the rule which will for the present be observed towards those Powers with whom she is at peace in the existing war with Russia.The undersigned has submitted those communications to the President, and received his direction to express to Her Majesty's Government his satisfaction that the principle that 'free ships make free goods,' which the United States have so long and so strenuously contended for as a neutral right, and in which some of the leading Powers of Europe have concurred, is to have a qualified sanction by the practical observance of it in the present war by both Great Britain and France—two of the most powerful nations of Europe.Notwithstanding the sincere gratification which Her Majesty's declaration has given to the President, it would have been enhanced if the rule alluded to had been announced as one which would be observed not only in the present, but in every future war in which Great Britain shall be a party. The unconditional sanction of this rule by the British and French Governments, together with the practical observance of it in the present war, would cause it to be henceforth recognised throughout the civilised world as a general principle of international law. This Government, from its very commencement, has laboured for its recognition as a neutral right. It has incorporated it in many of its treaties with foreign 497 Powers. France, Russia, Prussia, and other nations have, in various ways, fully concurred with the United States in regarding it as a sound and salutary principle, in all respects proper to be incorporated into the law of nations.The same consideration which has induced Her Britannic Majesty, in concurrence with the Emperor of the French, to present it as a concession in the present War, the desire 'to preserve the commerce of neutrals from all unnecessary obstruction,' will, it is presumed, have equal weight with the belligerents in any future war and satisfy them that the claims of the principal maritime Powers, while neutral, to have it recognised as a rule of international law, are well founded, and should be no longer contested.To settle the principle that 'free ships make free goods, except articles contraband of war, and to prevent it from being called again in question from any quarter, or under any circumstances, the United States are desirous to unite with other Powers in a declaration that it shall be observed by each hereafter as a rule of international law.The exemption of the property of neutrals, not contraband, from seizure and confiscation when laden on board an enemy's vessel is a right now generally recognised by the law of nations. The President is pleased to perceive, from the declaration of Her Britannic Majesty, that the course to be pursued by her cruisers will not bring it into question in the present war.The undersigned is directed by the President to state to Her Majesty's Minister to this Government that the United States, while claiming the full enjoyment of their rights as a neutral Power, will observe the strictest neutrality towards each and all the belligerents. The laws of this country impose severe restrictions not only upon its own citizens, but upon all persons who may be resident within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking a part in any foreign war. It is not apprehended that there will be any attempt to violate the laws; but should the just expectation of the President be disappointed, he will not fail in his duty to use all the power with which he is invested to enforce obedience to them. Considerations of interest and the obligations of duty alike give assurance that the citizens of the United States will in no way compromise the neutrality of their country by participating in the contest in which the principal Powers of Europe are now unhappily engaged.—The undersigned &c. "W. L. MARCY.I must say that I think that that is a very moderate and a very dignified note.
But if that were the state of things in 1854, I would ask your Lordships whether we have any reason to suppose that there will be any change of public opinion on the subject—that civilisation will retrograde— that humanity will diminish, or that anything is likely to occur to render less stringent or less obligatory the motives which imposed upon us the necessity of passing the Order in Council of 1854? Those who know the mode in which that Order in Council was received by most of 498 the neutral Powers, and how much importance they attached to it, would at once see how dangerous it would be to do anything to check the friendly feeling which was then created by saying that we would adhere to the principle of our old rule. But, as I have stated, we have never been at war as anything but a principal, and we have never yet experienced what the application of our own doctrines to ourselves would be. Suppose that France and the United States were engaged in a war in which we took no part, and that the French cruisers claimed the right to interrupt every commercial vessel sailing between this country and New York—suppose a French cruiser stopped a Liverpool ship in the Channel with a quantity of British merchandise in her, consigned to a house in New York, and the cruiser being too small to take the merchandise on board took the vessel to Havre to unload her—what should we say to this application of our own law to ourselves? Would there not be an outcry from one end of the country to the other against the injustice and injury of such practice, It was evidently impossible that we should revert to our former policy—the great changes which had taken place in our commercial policy forbad that we should ever have recourse to that policy again. The Government therefore thought that it would be wise and politic and expedient that when we were under no compulsion and our motives could not be misunderstood, we should make the declaration we have made, that we will not recede but will abide by what we have done in the hope that we should thereby mitigate the evils of war and produce a friendly feeling among the nations of the earth. The law of nations is founded on two principles, the jus naturœe, the principle of reason and justice, and the communis gentium consensus, and I say that that law prescribes and justifies the declaration we have made.
Your Lordships are called upon by this Resolution to express your regret that the Plenipotentiaries assembled at the Congress of Paris should have announced the abandonment of this principle without the knowledge and consent of Parliament. But if there be any principle of our constitution which is more accurately defined and more universally admitted than another, it is the right of the Crown to conclude treaties with other countries without the previous knowledge or consent of Parliament; and 499 for this, among other good reasons, that if you had to secure the sanction of Parliament before you made a treaty, you never could make a treaty at all. Do you think if the articles of this treaty, or even the bases upon which it is founded, had been, submitted to Parliament, that any such treaty would ever have been signed? I can tell your Lordships that it was not a very easy matter to accomplish, even with a dozen negotiators; but if a thousand more negotiators had been called in, with the addition of the daily newspapers, it would have been quite impossible. There is no doubt about the right and prerogative of the Crown to sanction a declaration of this kind, and that it does not require the ratification of Parliament. I have read to your Lordships a list of the various treaties which have been entered into by this country, renouncing this very principle; and with regard to no one of them was the sanction of Parliament ever asked, or the prerogative of the Crown ever called in question. As to the right of the Crown to conclude such a treaty, I will read to your Lordships what I am sure you will consider a very high authority. Lord Stowell says—The Crown, which declares general hostilities, can limit their operation; and again, it is indubitable that the King may, if he pleases, give an enemy liberty to import—he may, by his prerogative of declaring peace and war, place the country of Holland in a state of amity, or, a fortiori—he may exempt any individual from a state of war."—(1 Acton's Report, 328.)Moreover, if the sanction of Parliament were required now, it would have been as much required to state the principle two years ago as it was now to renounce it. But when the Order in Council was passed, the sense of Parliament was taken by an hon. and learned Gentleman, a Member of Doctors' Commons (Mr. R. Phillimore), who asked the other House of Parliament to resolve that to surrender or renounce this right would be inconsistent with the honour and security of this country. After a short debate the House of Commons was upon that occasion counted out, which shows how little the House thought that the sanction of Parliament was required.
Your Lordships are further called upon to express your regret—That a principle so long and so strenuously maintained should, in the recent Conferences at Paris, have been suddenly abandoned, without the previous sanction or knowledge of Parliament, by Plenipotentiaries assembled for the purpose of 500 discussing the terms on which peace with Russia might be concluded, and the affairs of the East satisfactorily adjusted.Now, of course I am the last person to complain of the censure being made as general as possible, or that all the Plenipotentiaries are included in a Resolution which, I presume, was intended to impute blame to Lord Cowley and myself; but I think that your Lordships will have some difficulty in placing upon record your regret that all the Plenipotentiaries should have renounced a principle to which their Governments objected, without the sanction of the Parliament of Great Britain. In pursuing the course which we have done in Paris, we have adopted precisely the course which was taken in Vienna—to which the noble Lord referred—when all the Plenipotentiaries agreed to that memorable declaration by which they affirmed that the slave-trade scourge which had too long desolated Africa, degraded Europe, and afflicted humanity; and they agreed among themselves, with the sanction of their Governments, that the most strenuous measures should be taken for its repression, If we had confined ourselves within the strict limits of our attributions we should have lost the opportunity, when the representatives of the principal Powers of Europe were met together, of discussing many important subjects, which, although they did not relate to our quarrel with Russia, it was most desirable should be arranged. If we had acted upon that rule not a word would have been said about Italy, from the discussions on which, I believe, important results will ensue. Not a syllable would have been uttered upon the principle of mediation; and yet I believe that by the discussion of that subject we have opposed a new and not insignificant obstacle to war. But Lord Cowley and myself did not hesitate—of course with the consent of Her Majesty's Government—to affix our signatures to a declaration which changed a policy that we believed it would be impossible, as well as against the interests of England, to maintain; France renouncing at the same time a principle to which we had always objected, thus placing our maritime law exactly on the same footing, and giving an additional security for the maintenance of our alliance; coupling it, moreover, with that provision with respect to privateering which will be of the utmost benefit to a commercial nation like England:—for I beg your Lordships to bear in mind that the provi- 501 sions contained in the declaration must be taken in their entirety, both by the contracting parties and by the Powers which may be invited to accede to them; and I say that the abolition of privateering is more than an equivalent for the abandonment of a claim which I know it would be impossible to sustain. I beg you to remember that the abolition of privateering—which is little less than licensed piracy or bucaniering—the fruitful source of iniquity and misery in their worst form—is of far greater importance now than at any former period. When the merchantman and the privateer both depended upon the wind for their power of motion they were comparatively upon a footing of equality, find, if the former were the faster sailer, she could escape from her enemy. But the greater part of our commerce, being still carried on in sailing vessels, Would be absolutely at the mercy of a privateer moved by steam, however small; and I think, therefore, that the abolition of privateering will be of the utmost advantage to a commercial community like that of England. Moreover, when we have given up all our protective duties, and are rapidly increasing our foreign imports—when we have abandoned our monopoly of the colonial trade—in short, when we have renounced all those pretended rights and claims—each of which has been in turn a British palladium and bulwark—I think we may reconcile ourselves to having given up a privilege which we could not maintain, thereby doing much to mitigate the miseries of war, and bring about a cordial feeling among nations.
Without troubling your Lordships with any further observations, I can only say in conclusion that, if I have shown that the most eminent jurists have not been in favour of the principle contended for by the noble Lord opposite, that that principle may safely be renounced because it cannot be maintained without serious injury to England, whereas the attempt to uphold it can only be regarded as an act of hostility to other nations, that England has not only occasionally waived, but even formally, unequivocally, and without the sanction of Parliament, abandoned, and that there was nothing new or irregular in the proceedings of the British Plenipotentiaries at Paris; then I trust your Lordships will concur with me in negativing the Resolution of the noble Lord opposite.
THE EARL OF CARNARVON
said, he 502 trusted their Lordships would not mix up the question relative to privateering with that of the concessions to neutrals. They stood upon an entirely different footing, although it might be easy to confound them, and to represent an opposition to extravagant concessions to neutrals as a defence of privateering. The noble Earl in his speech appeared to avoid an answer to the main question brought forward by his noble Friend, who asked—what value was to be attached to the declaration respecting maritime law, and whether it was to be regarded as a permanent abandonment of the principle? It was not a treaty. Was it a convention or a mere understanding between the Governments represented at Paris? In the event of any future war, would it be necessary to incorporate it into Orders in Council, or to obtain for it the sanction of Parliament? The Plenipotentiaries declared in the preamble that the "uncertainty of the law" gave rise to differences of opinion between neutrals and belligerents. He denied that the law was uncertain, and was surprised that any English Government should have made such a confession; for if there was one fact more clear than another, it was that the whole stream of authority was in favour of the principle hitherto maintained by England. But the noble Earl asked their Lordships to believe that the abolition of privateering was a fair equivalent for our concessions to neutrals. How could that argument be persisted in when, in the very middle of the late war, the President stated in his Message that the Government of the United States would on no condition consent to relinquish its right of privateering? As for paper blockades, there had been no such things for the last 100 years, with the exception of the Berlin and Milan Decrees and our own corresponding Orders in Council; and he could not sufficiently express his sense of the impolicy of making such vast concessions to neutrals for a document which was neither a convention nor a treaty, but something exceedingly vague and shadowy; for a preamble which was; not consistent with fact; for an abolition of privateering, which in the present temper of the United States could not be realised; and for the removal of paper blockades, which, practically never existed. He could understand the doctrines of those who argued that the sea should be open to all nations, commerce untrammelled, and merchantmen entitled to the same advantages as ships of war. Such advocates of 503 perfect freedom would probably think that the concessions made at Paris did not go far enough, and would ask us to give up the right of search. Her Majesty's Government held the same principles, but had not the courage to follow thorn out to their legitimate conclusions; they knew that through these concessions it would not be possible to put any check upon contraband of war in the event of future hostilities; and that in the next war we should inevitably be involved in the greatest difficulties on the subject. The noble Earl seemed to consider the right in the light of an oppression; but the principle involved was exceedingly simple and lay in a nutshell—it was simply the principle of self-preservation and legitimate self-defence—it was that in prosecuting a war we were at liberty to seize the enemy's goods wherever we could find them. On board of an enemy's vessel no one doubted our right, and he maintained that on board of neutrals the same right existed, and so delicate had we been in the exercise of our right, that demurrage had often been paid for detention equal to the whole freight. Was there any oppressive exercise of the right in that? By exercising the right we debarred the neutral only from those advantages that would operate to our own detriment—advantages which he never could have enjoyed but for the existence of the war in which we were engaged; we prevented him only from trading for the benefit of our enemy, and making private speculations out of the quarrels of nations. So long as he dealt with bonâ fide neutral property we did not interfere, we only did so when he departed from the line of strict impartiality. The question was not one as to the rights of neutrals, but as to the protection of enemy's property; and when two rights came into contact, the lowest right should give way, instead of sweeping away the greatest right altogether. In the contest of two well-matched antagonists, when a third Power came in and served one of them with what formed the "sinews of war," and enabled him to turn his sailors to account in the contest with his opponent, just in proportion as good service was rendered to the one belligerent injury was inflicted upon the other. The noble Earl opposite had dealt rather hardly with the question of authorities, and relied mainly on those who had written within the last fifty years. He would not be inclined on such a question to defer to the dictum of any class of men; but he thought 504 that while they might fairly distrust the opinions of men who had expressed their opinions in the heat of contest, and come to conclusions uniformly favourable either to national or party interests, they must, on the other hand, regard the opinions of men who had written against their own prejudices and with unimpassioned judgment and deliberation, as entitled to the greatest weight. When a man like Grotius, so remarkable for his judgment and candour, and so Dutch in all his sympathies, was found affirming his belief of the justice of seizing the property of enemies, not only on board neutral ships, but in the ships of allies, surely such a belief must be entitled to serious consideration. They knew that Holland, under its great statesman De Witt, sanctioned the principle for which we now contended, and that it was acted on by the Genoese, whose prosperity lay so much in the carrying trade of the world; and it was a remarkable fact that within ten years of the treaty entered into by the Northern Powers in 1780 there was not one of them which had not swerved from the opposite principle they had then laid down. During the Seven Years' War this principle was maintained by Chatham; Mr. Pitt followed the same course, and even Fox gave it his support, observing that it was so important to this country that its abandonment would be the greatest sacrifice we could make. Then, the Duke of Wellington gave his approval to the same principle; and Sir Robert Peel—no narrow-minded, illiberal statesman—was found I ranged on the same side. The noble Earl urged that throughout all history there had been a constant protest in the shape of treaties against this system as iniquitous and based upon national selfishness; and he quoted a vast number of treaties to that effect. But what was the real nature of a treaty? It was a contract between two parties for special purposes, and implied in its very nature that it was to do that which the general law of nations could not effect. It was purely exceptional, and the fact of there being exceptions only enforced the rule upon which it depended. The noble Earl said that, independently of the merits of this question, it was perfectly competent for the Crown to take such a step as it had now taken. No doubt it was competent to the Crown to make a treaty. But this was not a treaty; it was no essential part of the treaty with Russia that the rights of England should be waived; and as regarded the compe- 505 tency of the Crown, their Lordships were told some time ago that it was competent to the Crown to turn a whole brigade of Guards into their Lordships' House to swamp it, and it would have been perfectly competent to the noble Lord opposite to cede Malta to Russia and Gibraltar to Spain, or to sacrifice the independence of the Belgian press. Mr. Pitt certainly made a commercial treaty with France, in which the principle that free ships made free goods was recognised; but the question had then been before the country for months, and he considered himself warranted in believing that the country had given its assent. But had there been a shadow of warning on the part of the Government to the country on this occasion? Had we heard a single word beforehand of the great change that was about to take place—a change that had never been demanded except in a spirit of the most bitter hostility to this country? The noble Earl the President of the Board of Trade stated last year that it was impossible for the British Government to insist upon all the rights to which they laid claim; that they were engaged in war with an ally by whom different views respecting maritime law and the right of search were entertained; and that the British Government, therefore, waived their rights. In August of last year a right hon. Gentleman (Mr. Milner Gibson) in another place asked whether a proposition had been made that free ships of the United States should make free goods, and that neutral property on board enemies' should not be confiscated. The right hon. Baronet at the head of the Admiralty (Sir Charles Wood) replied that he was not aware that such a proposition had been made, but that at all events it had not been brought under the general consideration of the Government. Since that time the Government had had ample opportunity afforded them for considering this question, and if they had done so he thought it would have been more consistent with candour, fairness, and straightforward dealing to give Parliament some intimation of the great revolution which they contemplated. If, on the other hand, the subject had never been considered by the Government, but their policy had first flashed upon them at the Congress of Paris, at the suggestion of Count Walewski, he thought they could not be acquitted of a rashness and precipitancy unworthy of those who were intrusted with 506 the destinies of a great country. For his own part, he sincerely regretted the change that had taken place, and the manner in which it had been effected. He believed there was not a Member of that House who would not give his most cordial assent to any practical measure which promised to alleviate the horrors of war; but so long as war was regarded as the ultima ratio of nations, it was impossible that it should be unaccompanied by sorrow and desolation. In the words of a great statesman, the co-existence of a military war and a commercial peace were self-contradictory. It had been said that, in consequence of the declaration agreed upon at Paris, this country might expect reciprocal advantages as a neutral Power, and the sympathy of other nations when it might be the object of attack. He was not very sanguine as to any reciprocal advantage which this country might obtain as a neutral Power, for since the Revolution of 1688 there had scarcely been a great war in Europe in which England had not borne a share as principal. He must also observe that the sympathy of other nations was never purchased by concessions or by signs of fear. An unbending policy, earnestness of purpose, vigour of action, and a firm and determined attitude were the best guarantees of success. This country did not desire to impose upon any nations burdens or restrictions to which it would not willingly submit; and he believed that, with two exceptions, Great Britain had never inflicted injury by restrictions upon the commerce of other nations. Lately, however, they had held by mere trifles and had sacrificed great realities, and he could not regard without concern the surrender without any equivalent of a right which had been sustained at so much cost. Many persons must look upon such a step with regret, and even with humiliation; and if these were the auspices under which the peace was to be inaugurated, if the policy of the Government at home was to correspond with their policy abroad, the future was not to be regarded without feelings of apprehension and distrust.
§ THE EARL OF HARROWBY
said, that all that had been done by the present declaration was in consistency with previous treaties and with the policy which this country had adopted; nor was it correct to say, that this was a right given up by our Government without any compensating advantage. In the first place, there was the abolition of privateering, from which in 507 former wars we had suffered even more than we had inflicted; and, although England had by this declaration waived her right of seizing enemy's goods in neutral vessels, the waiving of a right did not affect the existence of the right; and when the exercise of the right was attended with so much dissatisfaction and distress, it surely was far hotter to agree to an arrangement for terminating it, than to insist upon carrying it out. This was not so much, as had been represented, a change of policy, as it was embodying in a general document what had been the subject of several special engagements during more than a century past. As regarded the United States, it had been urged that there would be no equivalent for the relinquishment of the right, because the Americans would not agree to the treaty or give up the right of privateering. But the answer to this was clear: that if the United States did not agree to the treaty, they could derive no advantage from it—they could not claim the protection if they did not sacrifice the right. In his judgment it was prudent and wise, on the part of our Government, at a time when we were not subjected to any circumstances of pressure, with no motive but a wish to promote the harmony of nations, to make the arrangement with the world in general, which we had successively made, by separate treaties, with most of the maritime Powers; it was one of a series of those measures which would tend to mitigate the atrocities of war and promote the progressive civilisation of mankind. The noble Earl said, that Parliament ought to have been apprised of the intention of the Government; but in what manner could Parliament have been apprised? Besides, the Government had no reason to doubt that the step would have the sanction of Parliament; because, when treaties had been concluded successively with France, Spain, Holland, and Sweden, stipulating for the abandonment of this right, Parliament had uniformly assented to these treaties. There could be no doubt that abstractedly, England possessed the right of seizing as lawful prize of war the goods of an enemy under a neutral flag; but the misery, the confusion and embarrassment to the operation of commerce consequent on the exercise of that right had forced her from time to time into a succession of particular conventions which amounted to a practical abandonment of it; and could it be said that we were to maintain 508 the exercise of it in this age, when the increasing intercourse between nations had multiplied the inconvenience of it indefinitely? For England to stand alone, insensible to the general current of opinion in Europe and the civilised world would be to place her in a most dangerous position, and to cause her to be considered as a selfish asserter of extreme claims, which she was only enabled to enforce by her widely extended maritime power. The real strength of England consisted not in the exercise of her extreme rights in the face of the disapprobation of the world, but in her reputation for justice as well as for power. Considering, therefore, that the step which had been taken for the Government, was one which deserved commendation as well as censure, he trusted the House would reject the Resolutions.
§ THE EARL OF HARDWICKE
said, he would address himself to the inquiry, what would be the result in the event of any future war, of carrying out the principle which had now been solemnly enunciated by Her Majesty's Government, and made, as he understood it, a part of the public law of Europe. He should be sorry to see this country again involved in a war with France while this law was in existence, as it would necessitate a war with neutral powers in self-defence. His conviction was, that the concession of this principle by the Plenipotentiaries at Paris had struck down the maritime power of England, and had reduced any future contest to a military duel of nations in which the armies and fleets of the belligerents would meet each other and settle the quarrel, ship to ship and man to man, by a direct contest of arms. He should like to know when a war conducted on such principles would ever be terminated, for it would be a direct premium to other nations to feed and foment the quarrel by offering them a gainful carrying trade as long as the war lasted? He would ask, what had been the result of our trying this system in the late war with Russia? The effect of it had been that we had paid into Russian coffers, as nearly as he could calculate, no less than £17,000,000 sterling, during those two years of our being at war. Our merchants, at the commencement of the war, believing that the maritime rights of England would be maintained, had made arrangements for a trade in hemp and other produce from distant countries; but our right of intercepting Russian produce in neutral hands was relinquished, and 509 our merchants suffered in consequence of those arrangements; the trade with Russia flourished during the war; Russia was enabled to get rid of her raw produce to any amount, and we paid her £17,000,000 of our gold. In that instance the principle which wag now laid down had not been very successful; and, in the opinion of many persons whose judgment on such a subject was of great authority, the war would have been ended sooner than it was, if we had not thus allowed our enemy to receive supplies. What was contraband of war? Its technical meaning was well understood, but in common sense it was, to all intents and purposes, everything that nourished the strength of the enemy, and enabled him to exert his power and to protract the struggle. If the war had continued, many persons were of opinion that the blockade of the Prussian ports would have had to be declared against neutral bottoms; at all events it was a question which was deeply considered, if not by the Government, at least by the people of this country. If the possibility of a war with France was looked to, the state of that country in the recent war with Russia would have to be looked to likewise. To man her military navy, France was obliged to withdraw her sailors from the merchant navy, and to carry on her trade by means of carriers under neutral flags. Suppose a war with France—which he hoped would be long averted—should occur, the same thing would happen again; and then, what would be the position of this country under this new system? In the event of the present law being adhered to, this country in that case would in self-defence have to declare war upon the neutral nations acting as carriers, to prevent the trade of France being carried on by them, and to prevent the fleets of France from being manned by the merchant navy. So far from softening the evils of war, therefore, the relinquishment of the right in question would be an aggravation and an extension of its miseries and its horrors. Their Lordships would also have to consider what would be its effects upon the British navy. He believed that the seamen of England were not more mercenary than those of other countries; but in all previous wars in which England had been compelled to raise large bodies of men for her defence, we had not been unmindful of the necessity of inciting them to exertion by holding out those rewards to which they might be entitled by their bravery; we had not refused them the 510 attraction of prize money, but had held out to them that legal system of gain, to be procured by their own exertions; but in picturing to himself a future war with France, under the principle now laid down, where was the prospect of prize money? and where, when France herself had no commerce, and all the articles she required from abroad were carried under a neutral flag, was the inducement to our sailors so to exert themselves? Again, consider what would be our position in the event of a war with America. His noble Friend the Secretary for Foreign Affairs, and the noble Earl who last addressed the House (the Earl of Harrowby), had made two distinct statements with reference to the position in which we should be placed with America. His noble Friend said—Do you suppose that America, with 5,000,000 tons of shipping, would permit you for a single moment to maintain laws of that description, and which have a tendency to interfere so much with her rights? Do you suppose that a powerful nation like America would suffer you to interfere with her rights?But the other noble Earl (the Earl of Harrowby) said that, if America did not agree to the clause which put down privateering, she would not be allowed to participate in those new laws and regulations—she must take them altogether, or not at all. He understood, then, that in the present state of the case, America, as a carrier nation, was not to be entitled to those rights and that protection which the new laws enunciated; for he was perfectly certain she would never put down privateering—it was the chief portion of her system of defence, for she maintained no large standing navy; and so far from having made America friendly to us, the course we were now taking would give direct offence to one of the greatest commercial countries in the world. The very first step of the Government would cause America to demur in toto to their proceedings, and to say that she would resist those laws whenever she had the opportunity. There was another part of the subject of which he felt great difficulty in speaking within the degrees of Parliamentary language, Whatever might be the opinion of others—however plausible the excuses Government might bring forward—he could not help feeling himself that the step which had been taken by a Minister of the Crown, in a foreign country, whilst sitting at a Congress assembled for a special purpose, would be regarded by the people of England, if not at the 511 present moment, at some future period, as wholly unjustifiable, although it might, perhaps, be strictly legal and within the power of the Crown to sanction. He granted that the power of the Crown had not been exceeded; but the sudden subversion of a great national law, upon which the country believed its maritime strength to be founded, by the act of a Minister at a foreign Court, at the suggestion of a foreign President of a Congress, was an act of the most painful kind, and derogatory to the dignity of this country. Whatever arguments of theory or expediency might be put forward in reference to ameliorating the evils of war, and other rubbish of that sort, it was impossible that a proceeding so extraordinary could be passed over without serious comment. For a Minister to deal with this great question in the manner the noble Earl had done, without giving the slightest notice to the Parliament or the people of this country, was one of the strongest uses of the Royal prerogative of which he had any recollection as having occurred in his time. A father of a family might do something which was perfectly legal, but which might be exceedingly offensive to his children, whom he would have done better to consult. Further, he did not think the Minister had in this instance dealt fairly by the Crown. His conviction was, that if the Queen of England had perfectly understood the whole scope and bearing of this question, She was not in her nature of a temper to abandon any of the rights upon which the strength of her kingdom was based. And although the constitution enabled the Minister to act in the manner he might choose to advise, yet, in so doing, he incurred a responsibility which must rest entirely upon his own shoulders. Now, he was not quite satisfied that the First Minister was a man whom they could safely trust to advise the Crown on all occasions; or that he always consulted the Queen in reference to cases of great importance. To use language of that description would be a very serious thing if he (the Earl of Hardwicke) did not feel that he was entitled to use it. He had no confidence, for his own part, that the manner in which this great question had been dealt with was strictly according to the constitution and the laws. He was not one of those who were disposed to treat the Crown as a nullity, or to hold that the Queen and her people were both to be passed over oil these occasions; and he should like to 512 have the assurance that in this particular instance the Queen had been dealt with by the First Minister in a manner different from that in which She had been sometimes treated. He remembered the occasion when a certian letter was read in the House of Commons which ran in these terms:—The Queen requires, first, that Lord Palmerston will distinctly state what he proposes to do in a given case, in order that the Queen may know as distinctly to what She is giving her Royal assent. Secondly, that having once given her sanction to a measure it may not be arbitrarily altered or modified by the Minister. Such an act She must consider as failing in sincerity towards the Crown, and justly to be visited by the exercise of her constitutional right in the dismissal of her Minister. She expects to be kept informed as to what passes between him and her Ministers at foreign courts.He would not read more; but when a step of such vital importance as this was taken by a Congress sitting in France, at the desire of a Frenchman, however worthy, honourable, and respectable he might be, as representing that great country, our great and most honourable Ally, yet; as an Englishman, he (the Earl of Hardwicke) felt that there was something of a character so painful and derogatory to the national honour, that he could not help asking himself the question, whether, under such a Ministry as this, the constitution might not have been abused, and in some degree suspended? With regard to his noble Friend opposite (the Earl of Clarendon), he had always entertained the highest admiration for his honesty of purpose, his earnestness, and his exalted talents; hence; he had the more difficulty in reconciling himself to the course that he had taken on this occasion. He was the man of all others in the Government who, he should have thought, would have looked upon this question as one of purely English importance, and he owned he was astonished when he found that his noble Friend, the instant a measure of such extent and importance was suggested in the Congress, should have so readily concurred in abandoning a policy so calculated to maintain our maritime power. As to the noble Marquess (the Marquess of Lansdowne), his great and distinguished services, and the manner in which he had always conducted the public business in this House, forbade him (the Earl of Hardwicke) from referring more particularly to him; but of his noble Friend the President of the Council (Earl Granville) he might say that he was one 513 of those amiable, kind, and soft men, who would he induced to do anything that was kind and courteous, especially at the request of the polite nation with which he had been connected from his early youth, and which he, like himself (the Earl of Hardwicke) admired so much. Then with respect to his noble Friend who had last spoken (the Earl of Harrowby), he was sure he would forgive him when he said that he had no confidence whatever in him. The fact was his noble Friend was a man who had professed such a variety of opinions, and shown himself a cross-bencher, and so useful in nicely balancing opinions on both sides, that although he had the highest admiration of his virtues, and the qualities which belonged to him as a man of ability, he could repose no confidence in him as a statesman stern in the protection of the rights of his country. Again, there was the noble and learned Lord seated on the woolsack, one of the most important officers of the Crown; but the only observation he (the Earl of Hardwicke) would make as to him was, that although he had given a helping hand in bringing about this most objectionable measure; yet he himself, with all his power, ability, and high judicial authority, had failed to carry almost every measure he had introduced into that House. And to the other noble Lords who were members of the Government, he would take them in a heap. They were perfectly well qualified to follow their leader, and this time they had followed into an act which, if it were not felt now, would be felt severely hereafter. Should we have the misfortune to be at war with a powerful neighbour they would recall to mind the present debate, and be able to judge for themselves whether the new principle of maritime law which the Government had saddled upon the independence and strength of the country was a fit and proper one to be maintained.
§ THE EARL OF ALBEMARLE
said, he should not have addressed the House on this occasion had he not wished to correct a misrepresentation of an opinion said to have been given by him last year with regard to the rights of enemy's goods in neutral ships. He had for many years held the doctrine that neutral flags should cover neutral cargoes—indeed, he was quite unable to see any difference between enemy's goods stored in a warehouse in a neutral territory, and enemy's goods carried on board a neutral vessel. 514 To seize enemy's goods on a friendly territory was not merely an act of hostility but of robbery; and in like manner he contended it was an act of downright piracy to seize enemy's goods in a neutral vessel. There were two cases in which the right of search was exercised—the case of enemy's goods in their own ships, and in the ships of neutrals. To take from an enemy's ship neutral goods and to restore them to their right owners was a matter of course, and that was the only right of search which ought to be exercised, always excepting the search for contraband of war in case of blockades properly enforced and duly proclaimed. He entirely concurred in the doctrine of Wheaton, that this right was based on the abuse of force. He could not help thinking, that when the noble and gallant Admiral penned thesis Resolutions, there must have been running in his head the instructions given by a First Lord of the Admiralty in George the Second's time to a captain in the navy:—"Young man, do no right, and suffer no wrong." That was exactly the history of international law. His noble and gallant Friend had quoted a whole host of writers on international law, from Grotius down to Vattel. But the argument founded on these authorities, was refuted by his noble Friend the Foreign Secretary, who had put the whole question in a nutshell. It is not what the law is, but what it ought to be, that the House has to consider. To take the latest authority quoted by the noble Mover of the Resolutions, Vattel. Vattel's Law of Nations was first published in 1758—nearly a hundred years ago. But the noble Lord should remember that since Vattell wrote, there has arisen a community of Anglo Saxons on the other shore of the Atlantic, numbering almost as many millions as their elder brethren on this side of the sea, addicted like them to commerce, consequently possessing the same means of making a powerful military navy, and imparting the same morbid jealousy of interference in their affairs. The existence of this people changed the whole question. At the court-martial, held or Admiral Keppel, in 1779, the prosecutors objected to some question as contrary to law. "Sir," replied one of the Members "we do not care six-pence for the law, we are here to administer justice, and please God that shall be done." Now a law to be entitled to obedience should bestow reciprocal benefits, but this pretended law 515 of nations was a law of the strong against the weak. Hence the House ought to say with the Member who sat in judgment on his kinsman "we do not care six-pence for the law, we are here to administer justice, not merely to individuals, but to the whole civilized world." This law could only benefit the three great maritime Powers, England, France, and America. But he did not think that his noble Friend who had introduced this Motion had made out his case as to the benefit which even these nations derived from the law as it had hitherto stood. In the cases of all three the very contrary had been proved. In 1739, this country had gone to war with Spain because some Spanish guarda costas had exercised the right of search on some English merchantmen; the war was proclaimed amidst the rejoicing of the people and the ringing of bells, which caused the Prime Minister of the day, who was the only sane man upon the subject, to say—"You are ringing your bells now, but you will be wringing your hands by-and-bye," and so it turned out. The disasters of Carthagena and others followed, and our merchants suffered so much that they came to the Prime Minister for redress; when he said to them—"The war is your own; you may take it for your pains." The noble Earl the Foreign Secretary had referred to the war with the United States in 1812. That was a war to which neither the people of this country nor the Americans could look back with satisfaction, and it was a war which arose entirely out of the exercise of the right of search. France also had no reason to refer with congratulation to that system. The Berlin Decrees originated in the right of search; and the consequence was that in 1831 the French nation was compelled to bind itself by a convention to make a pecuniary indemnity of one million sterling for that exercise of the right of search. The Chamber of Deputies refused to acknowledge that indemnity, and threw out the Bill confirming it. The consequence was, that America prepared for immediate war; and there was no question in the world but that with her men-of-war and privateers she would have swept the whole commerce of France from the ocean if we had not mediated in the matter, and given to France the wholesome advice to pay the money, which she did accordingly. He thought that the part which France and England had taken in this matter reflected the greatest possible honour upon both 516 countries, and he regarded it as an important step in the progress of civilisation. Savages originally ate their victims,—torturing them before roasting—that was the lowest step in the grade; a step higher was to put them to death without torture; a higher step still was to keep them as slaves; a little further advance was to sell them for a good round sum; then came the exchange of prisoners, treating them as in the war just ended, well while in prison; and last and highest of all will be the recognition of the principle that neutral flags constitute neutral cargoes. Upon these grounds he should vote against the Resolution of his noble and gallant Friend.
THE DUKE OF ARGYLL
said, that the fact of Her Majesty's Opposition having chosen to bring forward this Motion in the House of Lords afforded a pretty fair indication of the feeling which they entertained of the opinions and wishes of the great commercial classes of the country upon this subject. The Opposition knew that a Motion censuring the Government for their conduct in this matter had no chance of success in the other House of Parliament. But the other House contained more especially the representatives of the commercial interests of the country; and were noble Lords opposite prepared to resort to the argument that the commercial classes were alive to nothing hut their own peculiar interests, and that they were dead to the national feeling of honour and to the importance of upholding our naval supremacy? Such an idea was utterly preposterous, and such an accusation against the commercial classes would be grossly unjust. The more he looked into the subject the more convinced did he become that practically we had lost nothing and had gained much by abandoning the ancient principle of maritime law which had no doubt been maintained by the most eminent jurists and statesmen for a very long period. He would look at the Resolutions proposed by the noble Lord opposite. The first paragraph in the Resolutions ran thus—That the most eminent jurists of all ages have accepted as a principle of international law that the right of capturing an enemy's goods on board of neutral vessels is inherent in all belligerent powers; that the maintenance of this right is of essential importance, and its abandonment of serious injury to a power whose main reliance is on her naval superiority.There was some ambiguity in the word "accepted." He admitted that jurists had laid down that this was the law of 517 nations; but if by that the noble Lord meant to assert that the most eminent jurists of all countries had laid down that that ought to be the law of nations, and that the practice of nations in that respect corresponded with the principles of natural law and justice, he (the Duke of Argyll) altogether denied the accuracy of that assertion. The next proposition—that the maintenance of the right was of essential importance—would seem to imply that it was the most stringent and telling form of employing naval force against an enemy. That proposition he ventured to deny. We might quarrel either with a maritime country or with a country not maritime. If we quarrelled with a country not maritime, its commerce, partaking of its geographical character, would probably not be maritime, and that portion which was maritime would be most easily stopped by means of blockade. If we quarrelled with a country which was maritime, but not so powerful at sea as ourselves, it would be most to our interest to interfere with the carrying trade in their own ships, because on that their naval power depended. It must be remembered our naval superiority could be exercised still upon that portion of the enemy's trade, which was carried on in his own ships, and in attacking that portion we should be pinching him in a manner most likely to bring about a conclusion of hostilities. But the Resolutions proceed to affirm that this right is not only very valuable, but valuable in direct proportion to naval superiority. That was another point which he totally denied. No one would contend that the power of blockade was not infinitely more effective than stopping the trade carried on by neutrals. The power of impeding commerce without blockade might be exercised by a very inferior naval Power, supposing, of course, that the mode adopted were according to the admitted law of nations; but exactly in proportion as a country possessed a predominance of naval power would recourse be had to the more effective stoppage of commerce by blockade. The proposition; therefore, of the noble Lord was not only incorrect, but the very reverse of the truth. He would take all the countries of Europe with which we could possibly come into conflict. Beginning in the north, there was that great empire with which we had just concluded peace. Was it not perfectly certain that the manner in which we could best operate against Russia was by the system of blockade to which 518 we had resorted in the late war? He was surprised to hear the observation that the war might have been more effectively waged if we had not waived the principle now in dispute, because the noble Lord must have known that, as early as was consistent with our military operations, an effective blockade of every one of the Russian ports was established, that the neutral trade with Russia, which had been so much complained of, was maintained by Prussia overland, and that in no respect even by the ancient principle of our law, should we have been able to interfere. He would take the various Scandinavian powers. He trusted the time would never arrive when we should be in conflict with them, because of all people they were the most nearly related to ourselves in origin and character; but, in the supposed case of such a war arising, and he was supposing every possible case, surely no one would deny that from their geographical position the most effective, the most natural; and the speediest method of operating against Norway, Sweden, or Denmark was by the same system of blockade, and that the portion of their trade carried on by neutrals would comparatively be of the slightest possible consequence. Coming further south, he came to the country with which we were in intimate alliance: He trusted the two countries would never again enter into contests with one another. He felt we ought to speak with the highest respect of the naval power developed by France during the late war. He believed France was a most formidable naval power, and that, should a contest arise between France and this country, it would be a contest of a most serious kind. But, assuming that this country established the naval superiority which in former times she had established, the commercial marine of France—the foundation of her naval power—would be interfered with very considerably, and if England established her naval superiority in a more triumphant manner, she would naturally further resort to a system of blockade. As to the United States becoming carriers for France, in the supposed case of a war with our great Ally, it seemed to him quite impossible such a system could prevail to any great extent. With regard to Spain and Portugal, we had treaties establishing the principle of which the noble Lord complained, and those treaties were made at a time when Spain and Portugal were more formidable naval Powers than 519 they had since become. He had endeavoured to prove that in the case of all these countries we should give up a principle of very little value, as compared with those other means of warfare to which we should naturally resort. But supposing the right of search to be of much greater value than he believed it to be, he maintained it was precisely that kind of power which was most easily evaded by the various resources of an enemy. A neutral Power was almost always interested in the freight which it carried; by transactions of a commercial kind a neutral carrying Power might very easily acquire a further interest. Then came the question, what degree of ownership in the cargo by the neutral or the belligerent respectively would justify our insisting or not insisting on confiscation? It was, therefore, evident that the doctrine would involve us in disputes most dangerous and difficult to determine. The noble Lord then said, "Great Britain consequently, although occasionally waiving the exercise of the right by specific treaties, had invariably refused to abandon the principle." In one sense that proposition was true, but in the only sense in which it was useful to the noble Lord it was not true. It was not true that only occasionally, and in isolated instances, we had consented to waive and abandon the principle; it was more nearly true to say that, up to the close of the last century, it was rather the rule than the exception that we should consent to the waiving and practical abandonment of this right, because we had abandoned it with respect to Portugal for 156 years, with respect to France for 116 years, with respect to Spain for 311 years, and with respect to the United Provinces, formerly a most important naval and carrying Power, for 113 years. Treaties to this effect had been in force during some of the most important wars in which England had been engaged, and had been concluded with some of the most powerful maritime nations which then existed in the world. He contended that in the face of those facts, the statement to which the noble Lord asked the House to pledge itself was not correct, but gave an untrue view of the case. In his last Resolution the noble Lord asserted that the principle so long and so strenuously maintained by England had been "suddenly" abandoned in the recent conferences at Paris. He did not know what the noble Lord meant by the word "suddenly." It was true 520 that the Government did not ask the previous consent of Parliament to the abandonment of the principle. That was no part of their duty. They acted upon their constitutional right when they entered into the consideration of the subject with the other Powers represented at Paris; but the whole course and tendency of public opinion had been such as to render it apparent that a change was impending, and the ablest speech made in defence of the particular measures adopted during the late war was that delivered by Sir W. Molesworth, who might be taken to represent the views of at least some of his colleagues in the Government, and whose arguments all pointed not to a temporary, but to a permanent abandonment of the principle in question. It could not, therefore, be said with truth that the proceedings of the Plenipotentiaries at Paris had taken the public by surprise; and he thought their Lordships would be of the same opinion with the mercantile classes of the country, that his noble Friend the Secretary for Foreign Affairs took a good opportunity for laying the foundation for future peace amongst the various States of Europe. The advantages would not be all against England. He could conceive cases in which it would be of the utmost importance to us that our mercantile marine should be at liberty to engage in the carrying trade between belligerents without the risk of seizure; and there could be no doubt that a commercial nation like England must derive immense advantages from the abolition of privateering. A great deal had been made of the fact that the President of America had stated that his Government was unwilling to give up the right of privateering. The reply he had to make was, that if the United States should refuse to abandon that right, the present Administration had not bound any future Government to recognise in America the same right with respect to neutrals, which the declaration signed at Paris compelled us to acknowledge in those Powers which had reciprocated the advantage by the abolition of privateering. But the promulgation of the principles adopted by the Plenipotentiaries could not fail to have a powerful effect upon public opinion all over the world, and he lived in the hope that the American Government would join in establishing a system of maritime international law which was well calculated to promote the peace, happiness, and prosperity of mankind.
§ THE EARL OF DERBY
My Lords, the noble Duke, who generally addresses the House with a considerable degree of confidence in his own opinions, has spoken to-night with more than his usual share of that great Parliamentary virtue, but I think with rather less than his usual success, in attempting to grapple with the arguments advanced by my noble Friends by whom the Motion has been supported. In one respect my task is an easy one, but in another it is difficult. It is easy, because but little ground is left for me to go over which has not been already most ably occupied by my noble Friends, and more especially, if I may venture to make a somewhat invidious reference, by the noble Earl who spoke third in the debate (the Earl of Carnarvon), with a degree of power and ability which must have gratified all your Lordships, whatever your political opinions may be, and who from this night will stand in the foremost rank of speakers in this House. But in another respect my task is not so easy; or, if I may be allowed the expression, it is difficult because it is so easy—My wound is great, because it is so small."—I have no arguments to refute; but I cannot give a vote upon one of the most important questions which has engaged our attention for a long time—a question the consequences and effects of which will be such as you little contemplate at the present moment without recording my protest against a course of proceeding, which I believe to be not only humiliating and derogatory, but absolutely dangerous to the prime interests of England. My objection to the course which the Government have been induced to pursue is twofold. I object, in the first place, to the substance of what they have done, and I object, in the next, to the mode and manner in which they have done it. I will commence with the latter, upon which the noble Duke has not expressed any opinion, but to which the noble Earl, the Secretary for Foreign Affairs, adverted at considerable length. The noble Earl took great pains to assure us that it was clearly within the prerogative of the Crown to negotiate or conclude any treaty without the previous sanction and approval of Parliament. I know not why the noble Earl took that trouble, because, as far as my knowledge extends, no one has asserted or maintained the contrary argument. We have omitted that prerogative of the Crown, and also that 522 such a degree of confidence should be reposed in the Ministers of the Crown as might enable them to negotiate a treaty without the previous sanction, control, or interference of Parliament. I think, moreover, we have given a practical proof of our sense of the value of that maxim by resisting, during the course of the present Session, all the temptations which the temper of the people threw in our way to embarrass the Government in their negotiations for peace. We have given to them the confidence due to their position; we have imposed a studious silence upon ourselves; we have not by word or action hindered their proceedings in the smallest degree. But now I want to know, in the first place, what is this instrument to which they have affixed their signatures? The noble Earl admits that it is not a treaty; it has not, he says, the same solemnity as a treaty; it does not require ratification by the Sovereigns; but it has the same effect as a treaty; nay, it has much more than the effect of a treaty, because it is not a treaty agreeing with certain Powers to act upon certain principles, the action of which is limited by the terms of the treaty, but it is, or affects to be, an authoritative exposition of that which is the law, not of that which shall be the law. Admitting, therefore, that the Government have the perfect uncontrolled right, subject to their responsibility to Parliament, of framing the terms of any treaty by which the country may subsequently be bound, I draw a distinction between a treaty settling what shall be the course of action agreed upon between two countries, and an act or declaration which places the Government in the position of judges and exponents of the international law of Europe. I speak with great hesitation upon this subject, because I am told upon high legal authority that even such an act as this is within the prerogative of the Crown. Admitting, however, that it is an act within the prerogative of the Crown—although I should myself have doubted the soundness of such a doctrine—I must say that it is a gross and flagrant abuse of the prerogative. I say that the Plenipotentiaries went to Paris for a particular purpose, and the Parliament and the country reposed in them a generous confidence, which they have grossly abused. The Plenipotentiaries went to Paris to stipulate for certain terms upon which the peace of the world might be restored, and the interests of the East placed upon a satisfactory foundation. 523 dation. They concluded a treaty on that subject, and it remained for the country, after that treaty had been ratified, to express an opinion upon its terms and conditions. There, however, the duty of the Plenipotentiaries, or, at all events, the confidence reposed in them by Parliament and the country, was at an end, and what they did beyond that was, I will not say a betrayal of the confidence reposed in them, but an underhand proceeding of which the country had no notice and no knowledge. The declaration, as it was called, had taken the country completely by surprise. The noble Duke (the Duke of Argyll) tells us that though the Government, in the course of the war, came to no very definite conclusion on this subject, we might have gained some indication of the course they were likely to pursue, inasmuch as we knew from authentic records what were the views and opinions of the late Sir William Molesworth. I wish to speak with the utmost respect of a man of very great ability, especially as he is now no more; but I confess that I heard with astonishment from the noble Duke, who at one time professed himself to be a follower of the late Sir R. Peel, or at all events a Conservative Liberal, that the acts of a Government of which he was a member—and of course a most conspicuous member—were to be inferred from the language and opinions of Sir W. Molesworth. I confess I listened with astonishment to the statement that because Sir W. Molesworth held and expressed certain opinions upon political subjects the country were to infer that he declared the principles upon which the Government would subsequently act. I thank the noble Duke for the light he has thrown upon the interior of the Cabinet, and upon the degree of union which exists among its members. The noble Duke says it is quite true that the Government made no declaration of their intention to abandon the right we are now considering. No; they made a declaration to the contrary effect; for, in the Order in Council of 1854, they spoke of that right as one which indisputably belonged to this country, but which considerations of State policy, and the peculiar circumstances of the war in which we were engaged, induced them to waive, although they denied their intention to abandon it. I admit there were grave and weighty reasons for waiving this right of war under such circumstances. We were engaged in war 524 along with an ally by whom a different interpretation was placed upon the law of nations to that which we gave it ourselves. Nothing could have been more embarrassing or unjust to neutrals than that they should be subject to the double interpretation placed upon the code of international law by this country and by France, the one declaring them good prizes in one case, and the other declaring them good prizes in opposite circumstances. This was clearly stated at the commencement of the war, and I made no objection to the course pursued by the Government, thinking that it was justified by the circumstances. The noble Earl the Secretary of State for Foreign Affairs said that, although the settlement of this question of international law was no portion of the business which the Plenipotentiaries assembled at Paris to discuss, yet great disappointment would have been felt if the Plenipotentiaries had not taken the opportunity of considering and settling many questions of importance relating to the general affairs of Europe. For aught I know the Plenipotentiaries may have discussed several questions of the utmost importance; but of this I am quite sure—that they have settled none. Of those questions which they have discussed every one is left as open at this moment as it was at the period at which they commenced their discussion—ay, even including that article to which I am astonished to find that a British Minister placed his signature, and which implies the necessity of interfering for the regulation of the press of Belgium. That question was left unsettled, and after faint and feeble remonstrances, the Plenipotentiary of England, to my great astonishment, placed his hand to a protocol which recognised the necesssity of interfering to check the licentiousness of the Belgian press.—[The Earl of CLARENDON interposed a remark.]—This is the protocol to which the noble Earl has attached his signature:—That all the Plenipotentiaries, and even those who considered themselves bound to reserve the principle of the liberty of the press, have not hesitated loudly to condemn the excesses in which the Belgian newspapers indulge with impunity, by recognising the necessity of remedying the real inconveniences which result from the uncontrolled licence which is so so greatly abused in Belgium.I had not intended to touch upon this subject, but I was astonished to find that to such an article the British Plenipotentiary has placed his name. The noble Secretary for Foreign Affairs vindicates his dealings with the question of interna- 525 tional law, inasmuch as it was one of those great questions which affected generally the nations of Europe, and he gave as his precedents for that interference the proceedings at the Congresses of Westphalia and Vienna. He said, with great truth, that at the Congress of Vienna the slave trade formed no part of the business of the Congress, but that no one blamed the Congress for the discussion which took place and the declaration which was made. That declaration repudiated the slave trade on the part of every State which was a party to it, but it left to every country the right of carrying into effect the principle of the declaration in its own manner and according to its own laws. Is that, however, a precedent for this case? The Plenipotentiaries at Vienna well knew that in putting their names to the declaration against the slave trade, they were acting in accordance with the highest and strongest feelings of their countrymen, and that no principle was more warmly cherished by the people of this country than the condemnation of the slave trade. Has the noble Earl (the Earl of Clarendon) the same confidence with regard to the protocol to which I have referred? I ask him does he think that, if his intention to assent to such a declaration had been announced beforehand to the people of England, he would have dared to refer the question to their decision. I firmly believe that the spirit and feeling of my countrymen have not so sunk, and that they have not abandoned themselves so entirely to mere considerations of gain and of pelf as to sacrifice those rights and interests of this country which they hold in as high esteem as did their ancestors. The noble Duke opposite has expressed an opinion that the commercial community of this country are so wrapt up in the idea of the acquisition of wealth that they are indifferent on the subject, and that for this reason the question has not been brought forward in the other House. I make no such charge; I hold no such opinion; I do not believe the fact; but I do believe that if, at the commencement of these negotiations, it had been announced that you were about to conclude the war on conditions, one of which was the abandonment of the naval superiority of this country, an universal feeling of indignation would have been excited. I am of opinion that the course which has been pursued amounts to an abandonment of the naval superiority of 526 this country, and before I sit down I shall endeavour to show that that opinion is well founded. I believe the country coincides in that opinion; and I believe, also, that if the country had known the terms you were about to conclude, and the declaration you were about to sign, an indignant protest would have been made against the betrayal of the national interests. I am not enough of a lawyer to take upon me to assert positively that this declaration of the Plenipotentiaries is actually illegal, but certainly it does appear to me to be anything rather than constitutional. And, indeed, I have observed, not without satisfaction that there appears to be some doubt, even among the members of Her Majesty's Government, if not of the validity at least of the perpetuity of this engagement. My noble Friend the Lord Privy Seal has told us that although by this act we have waived our right, yet that we by no means abandon the principle, that it is a portion of the law of nations that belligerents shall have the right of seizing as lawful prize of war the goods of an enemy under a neutral flag. I heard this statement with gratification because it seemed to me to afford some ground of hope that circumstances may hereafter arise under the influence of which it may be found convenient to abandon this very declaration the moment that we have experience of the stern exigencies of war. Allow me to call your attention to the terms in which this declaration is couched. If it had been nothing more than a stipulation for not carrying into effect certain articles of international law, I—though probably I might be disposed to call in question the expediency of such a proceeding—should certainly not have discussed it politically. But it is worthy of remark that this declaration is general, not particular, and that in its terms it is absolute and unconditional. It proceeds to say that privateering is and remains abolished, that the neutral flag covers enemy's goods except contraband of war, and that neutral goods, except contraband of war, are not liable to capture even under an enemy's flag. This is a declaration unqualified and unequivocal, not of what the law was, or shall be, or ought to be, under peculiar circumstance, but of what it is. "Privateering is, and remains, abolished. The neutral flag covers enemy's goods." Can anything be more dogmatic or more dictatorial? Nevertheless, there is a strange inconsistency in the manifesto, for the 527 Plenipotentiaries then go on to say that that which they have solemnly propounded to be a part of the international law shall not be so in fact and effect, except with regard to those nations which accept the whole of it. Here is a latitude and a laxity which, bearing in mind the positive and authoritative tone observable throughout the earlier portions of the document, we had little reasons to expect. The noble Earl the Secretary for Foreign Affairs talks contemptuously of the laws of "barbarous ages," and cannot suppress his scorn for usages sanctioned by the authority of such jurists as Grotius—men who, he assured us, justified the slaughter of prisoners and the killing of women and children.
§ THE EARL OF DERBY
I entreat the noble Duke to believe that I am not always talking of him. When I speak of another person, it does not follow that it is he who is present to my thoughts. I stated most distinctly that it was to the noble Earl the Foreign Secretary that I was alluding. True, the noble Duke adopted a similar line of argument, but it was to the noble Earl the Foreign Secretary that I was referring. I was observing that that noble Earl had attributed to Grotius the atrocity of vindicating the practice of slaughtering prisoners, and killing women and children in cold blood.
§ THE EARL OF CLARENDON
I beg the noble Earl's pardon. He has entirely misinterpreted me. What I said was, that many jurists who defend those early laws and usages with respect to maritime rights, have also defended the particular usages to which he has just alluded, and that, with respect to Grotius, he had recognised the right laid down in the Consolato del Mare, without assigning his reasons for doing so. That is what I said, and I know I did not say what the noble Earl attributes to me.
§ THE EARL OF DERBY
I will not dispute the point with the noble Earl, but I will take leave to assure him that, of all the learned authorities he has quoted, there is not one who does not recognise as a portion of the national law of Europe the principle we contend for, that it is a portion of the national law that enemy's goods on board of neutral ships are liable to capture, and that to capture them is an inherent right of the belligerent Powers. It is one of those maxims, the positive and 528 unquestionable nature of which is signified by the use of the words nemo dubitat—no one doubts it. An opposite doctrine was never put forward until 1753, when Prussia for the first time claimed that the neutral flag should be held to cover the goods of the enemy. The noble Earl has argued that we are not justified in adopting any measure of extreme rigour for the purpose of hastening a peace. But the question is, whether this is an extreme measure, and whether, inasmuch as it accelerated the renewal of peace, it is not really the most humane step, as it is certainly the most effectual, we can take? But, when the noble Earl put the question on the score of humanity, I am tempted to ask, whether the noble Earl is not laughing at the credulity of his hearers? Was it the regard which Catherine of Russia felt for the principle of humanity, that induced her to raise the question? Was it humanity which induced the other continental States to follow her example? If it was humanity at all, it was humanity for themselves. Let us have no more of this talk about humanity. Let us look at the question as it really is, as a question of policy—a question, of which of our undoubted rights it is for our interest to maintain, and which we may safely abandon? The point in dispute was first raised in 1753, by Prussia, and her pretensions were opposed by England with a strenuous power of argument, and with the intimation of her intention to resist it by force. Lord Mansfield denounced it with characteristic earnestness, and Vattel, who wrote a few years later—in 1758—availed himself of the occasion to lay it down as a principle, that if we find enemy's goods in the ship of a neutral we are justified in seizing them by right of war, taking care, however, to pay the master of the vessel his freight, for he is not to suffer by our seizure. The claim of immunity for the neutral flag was again put forward in 1780 and 1801, but on each occasion it was strenuously and successfully resisted by England. Her Majesty's Government, however, say that things are now changed, and that we must conform to the altered aspect of affairs. But Pitt, Lord Grenville and Mr. Canning, were not statesmen so far removed from the present day, and they all supported the principle which was now abandoned; and if we only had Ministers of their mould we should not hear of "change of circumstances." It is now said, that if we determine to support this doctrine we 529 should be alone. We have been alone, and yet maintained and upheld the doctrine against a confederacy of opponents, as the Æof our power. Yet this principle of belligerent right has been abandoned by the Government—I know not on what grounds, but this I know, that it has been abandoned without the sanction or consent of the people of this country. A noble Lord has objected to the wording of the Motion, because it would condemn the conduct of foreign Plenipotentiaries as well as that of our own. Now, we do not presume to condemn the conduct of foreign Plenipotentiaries, who may have acted wisely in their generation, and rightly for the interests of their country. But what we deal with is the conduct of the English Plenipotentiaries in respect to English interests. Let the noble Earl say what he pleases about the importance of England taking the first and primary position in this work of humanity, I beg to remind him that England did not take the first step, but followed in the wake of France. It was the proposal of the French Plenipotentiary, and I should have liked to see what arguments were used by the noble Earl, and what conditions were made for the surrender of this right. In this matter, I repeat, we followed in the wake of France, to which country the adoption of the new principle is eminently favourable. But the noble Duke said that this was not a sudden proceeding. All I know is, that it took the people of England by surprise, and the Plenipotentiaries equally so. It was not hinted at during the course of the Conferences up to the 8th of April, and then, for the first time, Count Walewski brought forward this new declaration of international law. The surprise of the Plenipotentiaries of the other Powers was no less than that of the people of England. Prussia, consistently and wisely as a carrying Power, jumped at a proposal she had been urging for the last 100 years. Russia and Austria were more cautious; their Plenipotentiaries stated that the matter was beyond their instructions, and desired time to consult their Courts. They did so by telegraph, and received for answer—"Good Heavens! is England so weak to consent to this! We have been trying for the last eighty years to find a British Minister who would surrender this point, and here we have found one at last!" I said I would tell you what former statesmen stated on this surrender of right, and perhaps your Lord- 530 ships will not be indisposed to listen to the opinions of Mr. Pitt in 1801:—Let it be granted that it was an act of sound policy to make that cession to Russia, that it was so at a time when our naval inferiority was too unfortunately conspicuous—when we were at war with France, with Spain, and with Holland, and when the addition of Russian hostility might have been a serious evil—does it follow that at the present moment, when the fleets of all the Northern Powers, combined with those of France, of Spain, and of Holland, would be unequal to a contest with the great and superior naval power of England—does it follow that we are to sacrifice the maritime greatness of Britain at the shrine of Russia? Shall we allow entire freedom to the trade of France? Shall we suffer that country to send out her £12,000,000 of exports and receive her imports in return, to enlarge private capital, and to, increase the public stock? Shall we allow her to receive naval stores undisturbed, and to rebuild and refit that navy which the valour of our seamen has destroyed? Shall we voluntarily give up our maritime consequence and expose ourselves to scorn, to derision, and to contempt? No man can deplore more than I do the loss of human blood, the calamities, and the distresses of war; but will you silently stand by and, acknowledging these monstrous and unheard-of principles of neutrality, insure your enemy against the effects of your hostility? Four nations have leagued to produce a new code of maritime laws, in defiance of the established law of nations, and in defiance of the most solemn treaties and engagements, which they endeavour arbitrarily to force upon Europe; what is this but the same Jacobin principle which proclaimed the rights of man, which produced the French Revolution, which generated the wildest anarchy, and spread horror and devastation over that unfortunate country? Whatever shape it assumes it is a violation of public faith, it is a violation of the rights of England, and imperiously calls upon Englishmen to resist it even to the last shilling and the last drop of blood, rather than, tamely submit to degrading concession, or meanly yield the rights of the country to shameful usurpation."—[Hansard, Parl. History, xxxv. 1127.]Such was the language of Mr. Pitt. My Lords, there was no man in those days to tell us that "we stand alone." In those days England was not afraid to stand alone; and let England be still England, as she would be but for England's Ministers, she would not be afraid to stand alone again. Lord Hawkesbury said—His Majesty will never submit to pretensions irreconcilable with the true principles of public law, and which strike at the foundations of the greatness and maritime power of his dominions. It is sufficiently known with what hostile intentions an attempt was made in 1780 to introduce a new code of public law against Great Britain, and to support by force a system of innovation prejudicial to the deadest rights of the British Empire. But His Majesty has hitherto had the satisfaction to see that these arbitrary and injurious measures have been completely given up. His Majesty has already repeatedly communicated his fixed unalterable determination to maintain 531 those established principles of maritime law, which have been found by the experience of all ages to afford equal security to the just rights and interests as well of neutral as of belligerent Powers.There was then no difference of opinion on the point that this was a surrender of the maritime power and greatness of this country, and, notwithstanding that all the world in arms might be leagued against them, the British Ministers of those days would not propose, and, if they had, the British people would not have consented to the surrender. Now let us come to later times. We are told that times are changed—that we are not the powerful nation we were before, that other Powers have grown up, and that we ought to beware how we provoke the hostility of other nations. But how did Mr. Canning deal with Brazil, in 1827, shortly before his death? He not only refused to surrender this principle, but absolutely refused to ratify a treaty concluded with Brazil by Sir Charles Stewart, on the ground that it contained an article which inferred the abandonment of the right in question. He said—The rule of maritime law which Great Britain has always held on this subject is the ancient law and usage of nations; but it differs from that put forth by France and the Northern Powers of Europe; and that which the United States were constantly endeavouring to establish. England had braved confederacies and sustained wars rather than give up this principle; and whenever, in despair of getting the British Government to surrender it by force, recourse had been had to proposals of amicable negotiations for the purpose of defining, limiting, or qualifying the exercise of the right of search, Great Britain had uniformly declined all such overtures, from a conviction of the impracticability of qualifying, limiting, or even defining in terms that would be acceptable to the other party the exercise of a right, without impairing, if not sacrificing, the right itself.He then goes on to say that this had been refused to all possible motives of interest or apprehension, and that, as the treaty gratuitously gave it up, it was impossible for him to ratify the treaty. Have I brought down my authorities to a late period? Are these the doctrines of barbarous ages? Are these the exploded principles of a time long gone by? Noble Lords opposite say we have given up the corn laws, we have abandoned the navigation laws; all these changes have answered so wonderfully well, let us go a step further—let us give up that which all statesmen in all ages have held to be the mainstay of our maritime superiority; and then let 532 us say what the result will be? That is the whole of their argument. If Pitt was a barbarian, if Canning was a barbarian, if neither of them knew anything about the principles of international law, or about the rights and interests of their own country; if they knew not how, or when, or where to maintain or to abandon those rights and interests, then I am content to class myself humbly in the same line of barbarians with Canning, Pitt, Lord Hawkesbury, and Lord Shelborne. I am willing to be numbered myself among these modern ancients, and to leave all civilisation and all wisdom to the noble Duke and the noble Earl opposite, and to the rest of the noble Lords who constitute Her Majesty's Government; but I must beg at the same time to enter my protest against the conclusion at which they have arrived. We have been told that we are to consider, not what the law is but what it ought to be. All the old jurists, it is said, have been content to lay down the law without attempting to defend it. That is a complete misstatement. So far from this being the case, the jurists have all dealt with the principles on which the law is founded; they have all dealt with it on its foundation, they have all shown that the legality of capturing enemy's goods in neutral vessels is based on the rights of civil society, and on the inherent privileges of belligerents. They have entered, one and all, into the rationale of the case, and they have substantiated not only that it was the law, but why it was and why it ought to continue to be the law. Among the arguments ad timorem which have been addressed to us from the other side, we have been told to remember 1812, and the circumstances of the war in which we were engaged in that year with America. But what was the point upon which you quarrelled with America in 1812? It was not because you prevented neutral vessels from conveying enemy's goods, but it was upon the question which you studiously keep alive in these protocols—the right of search. The grievance complained of by the Americans was that their vessels might be overhauled on the open sea, and especially that they were liable to have their seamen taken out of them on the ground that they were deserters from our service, and that they were liable to be sent to a neutral port; they denied altogether the right of search as applied by belligerents. You maintain, however, the right of search in these pro- 533 tocols in its full integrity, even as regards those nations which have joined in this Declaration; you maintain the principle that neutrals may be searched for contraband of war, and yon thereby admit the principle of the violation of the neutral flag, and you continue the damage and inconvenience which result to merchantmen from being overhauled on the open sea. But you point it more especially against America, because you say that the limited advantages which are given to neutrals under this new law shall only be shared by those who adhere to this Declaration—it is not to affect those who do not accept it as a whole. The noble Duke opposite expressed a hope that the Americans would adhere to this Declaration, and more particularly that they would give up the principle of privateering; but the President of the United States, who is almost as good an authority on American affairs as the noble Duke, told you only a year ago, that this was a right which the Americans would never give up, nor ever consent to discuss. Therefore by the surrender you have made you do not escape the hostility of neutral nations upon the ground of the right of search, and you make the hostility of America more pointed by maintaining against her particularly the right of search in its full integrity—while the maritime code is relaxed with respect to every other country a marked exception is made with regard to the United States. That is always the result of paltry concessions wrung from you by apprehension. You lose your self-respect and your position in the world, you weaken the influence which you have always maintained, and you do not gain the adhesion and affection of those whom you seek to conciliate. A noble Earl has contended, that there is no difference between land and sea, that what is free by land ought to be free by sea, and that there should be no violation of private property at all. But if the noble Earl's theory be admitted, it would put an end to naval warfare altogether. It was argued that because enemy's goods, even on board a neutral, are merely the property of an individual, not the property of a State, they should not be seized; but why do you not extend your principle, and say that merchant ships, being private property, unarmed and engaged merely in the prosecution of commerce, ought to be allowed to pass through the belligerent cruisers? I defy you to draw the line. If you grant one principle you must grant the other. 534 And yet, among all the treaties to which noble Lords opposite have referred, and which I entirely pass by as being beside the question—for it is one thing to waive a right and another thing to give it up altogether—there is but one—a treaty negotiated by Franklin between the United States and Prussia—which contains the principle that merchant ships should be allowed to pass through the cruisers of the belligerents. I am afraid, however, that it is and always will be one of the consequences of a state of warfare to inflict injury upon unoffending individuals; and if you limit these injuries to cases in which neutrals are virtually assisting belligerents by bringing them what is necessary for carrying on the operations of war—nay, even by increasing the wealth and commercial strength of the country—we shall be doing nothing but what is consistent with natural law, and shall be taking the best steps to put an end to war; but if the noble Earl's doctrine be received—if you permit neutrals to carry on an uninterrupted trade—you will not only enable the enemy to prolong the struggle, but you will make it the direct interest of the neutral to protract the contest. But before I leave the United States and the fear which has been expressed that, in the event of our persisting in the maintenance of our ancient claim, the United States would refuse to recognise it, let me read what Chancellor Kent and Professor Wheaton, who was lately American Minister at Berlin, say upon the subject. Let me premise it by saying, that all the Powers who entered into this solemn league of neutrality, to which they refer, very soon abandoned their principles; within eighteen years every one of them had signed treaties in which the principles of neutrality were completely given up. Chancellor Kent says:—The Baltic conventional law of neutrality was soon abandoned, as not being sanctioned by the existing law of nations, in every case in which the doctrines of that code did not rest on positive contracts. During the whole course of the wars growing out of the French Revolution the Government of the United States admitted the English rule to be valid as the true and settled doctrine of international law, and that enemy's property was liable to seizure on board neutral ships, and to be confiscated as prize of war… The two distinct propositions that enemy's goods found on board a neutral vessel may lawfully be seized as prize of war, and that the goods of a neutral found on board an enemy's vessel were to be restored, have been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court to be founded on 535 the law of nations… I should apprehend the belligerent's right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound in truth and justice to submit to its regular exercise in every case and with every belligerent Power who does not freely renounce it.That is the declaration of one of the most eminent lawyers of America as to the bounden duty of that country with regard to the international law which we have always maintained, and which he declares to be incorporated into the law of the United States. Again, what does that high authority, Wheaton, say upon the same subject? He says—Whatever may be the true original abstract principle of natural law on this subject, it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods in neutral vessels to condemnation as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations. By the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, are liable to capture and condemnation. The primitive law, independently of international compact, rests on the simple principle that war gives the right to capture the goods of an enemy, but gives no right to capture the goods of a friend. The right to capture an enemy's property has no limit but of the place whore the goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. The stipulation that neutral bottoms shall make neutral goods is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations.Now, there is the doctrine laid down in support of the opinion of every British statesman, recognising the law and the duty of neutral nations to submit to the right which we claim to exercise, I look upon this question as the most important which your Lordships can be called upon to discuss; and depend upon it that the time will come, if you do not estimate its importance now, you will deeply feel its consequences. My Lords, I look upon this act of the Government as cutting off the right arm, as it were, of the country. I look upon it as depriving her of those natural advantages which her great maritime power has given her in war, and of the exercise of that superiority and those belligerent rights without which she is nothing. If she remains not the mistress of the seas she falls immediately and 536 naturally into the position of a third-rate Power. Clearly it is the interest of France to maintain the opposite doctrine. France and England are the two greatest Powers of Europe, and God forbid that they should be separated. United, they may secure or they may imperil the peace of the world; but separated, they each have their peculiar means of offence and defence. The means of France is her army; and the main resort of England must always be to her navy, whether it be to defend her own coasts from aggression, to which, thank God, she has hitherto been a stranger, or to enforce her rights upon foreign nations. By the navy you must do it, and the more you circumscribe the power of that navy the more you weaken the strength and influence of the country. I confess that I was astonished at the argument of the noble Duke—if, indeed, I could be astonished at any argument that he employs—that the stronger a Power was at sea the less important was it for her to maintain her maritime rights. The noble Duke took the Resolutions seriatim, and commented on them with various observations, more or less important—I think most of them less. I will not follow him through his observations; but I must meet his statement that the abandonment of the right which we have hitherto possessed was not an abandonment of any right or power the loss of which would be serious to this country. In order to test the value of that opinion, let us take the recent case of the war with Russia. Now, I want to know where you would have been in the war with Russia if you had abandoned the principle of capturing enemy's goods in neutral vessels, and had been unassisted by the French military force? The only power which you could bring against Russia was a naval power; and if that had been unsupported by military assistance, what impression, I want to know, would you have made up to this moment upon Russia? You might have greatly distressed Russia by the maintenance of your maritime rights; you might, no doubt, have greatly inconvenienced and annoyed her by a blockade of her ports; but she sends her goods to Memel—you cannot blockade Memel, which is a Prussian port, and the commerce of Russia is not interrupted by any naval operations of yours. You prevailed against Russia, because, in addition to your naval power, you had the assistance of the greatest military Power on the earth. If you had not had that 537 assistance, would you have signed a peace with Russia for the next ten years, unless it involved more humiliating concessions than you have made by the abandonment of this right? Whatever losses Russia may have suffered by this war, whatever embarrassments she may have experienced, I hesitate not to say that they are more than compensated by the adoption of that one article, gratuitously inserted by the French and British Plenipotentiaries, by which, in the words of Mr. Pitt, you have sacrificed the maritime greatness of England on the shrine of Russia Suppose—which God forbid!—that a war should arise between this country and France, what means have you of opposing France, except closing her up hermetically, and stopping her commerce? Well, what are you to do? You cannot blockade the whole coast of France; but you can practically prevent her from sending out one single bale of merchandise. Your new law permitting French goods to go with impunity on board neutral vessels comes into operation; you have no blockade; France gives up her whole commercial marine; she makes her vessels into vessels of war; she has seamen to man them; and, before your very face, she carries on her whole commerce under the Prussian or American flag. You are powerless. Your power is gone. Your right arm is cut off. Your only means of defence are abandoned, and abandoned to at the suggestion of France. Was there ever a Minister so led by the nose? Was there ever a minister who so deliberately walked into the trap set before his face; and so tamely and gratuitously surrendered the foundation of England's greatness? [A laugh.] The noble Lord finds in it a subject for laughter; I hope the country will find in it a subject for laughter some ten years hence. A noble Earl has well quoted, "You ring your bells now; you will have to wring your hands hereafter." You are exulting over peace. You are ringing your bells and illuminating your town. I say the country does not see the dangers to which it is exposed; but depend upon it, when painful experience shall make the country wring her hands and not her bells, she will know on whose head to visit the consequences of the decline of her power and greatness. I go then to the United States. Do you pretend that 2,000 miles of seacoast can be uninterruptedly blockaded under whatever circumstances of wind or weather? Do you mean to say you 538 will apply that principle to a war with the United States? What will happen with regard to the commerce of the United States? The United States is not entitled, unless she enters into the convention, to carry the goods of France; but supposing you are at war with the United States, what is your position? France is a party to your convention, France has a perfect right to carry goods like other neutrals, and France offers to carry the goods of the United States, with which she is at peace, and claims to pass unquestioned unless she carries contraband of war. Do you mean to accede to that demand or to refuse it? If you accede you place yourself in this position,—the trade and commerce of the United States remain uninterrupted by the intervention of French neutrals, and by the refusal of the United States to come into the convention they maintain the belligerent right of privateering on goods in your ships. As to the principle of privateering, I can only say I should cordially rejoice to see it altogether abolished. It is to the interest of all nations that it should be abandoned. It is contrary to morality and international law, because traffic in war is carried on not in the service of a country, but for private gain; and I should desire nothing more than to see that principle abandoned altogether by the common consent of nations. I am now speaking of the three Resolutions to be moved by my noble Friend above me, but of privateering properly understood. But if you tell me that the abandonment of privateering is a concession made to England in order to get her to abandon a valuable right, I cannot and will not accept it, because, abhorrent, as the principle and practice may be, if privateering were resorted to by all nations, none would gain more or suffer less than England. You may say she has an extended commerce. I trust that commerce will be more extended. Hitherto, with her own right arm and that navy which is her mainstay, England has been able to protect and defend her commerce, without recourse to conventions, stipulations or treaties. I cannot accept the surrender of privateering as a boon to England. I accept it cordially and willingly as a concession to humanity, but not as a great and pre-eminent advantage peculiar to ourselves. Therefore, I say, according to my reading of these articles, you gratuitously and tamely, without application from any power, but upon 539 the recommendation and following in the wake of France, surrender a right which belonged to us, which was established as a right by all jurists of earlier days, which was recognised by all jurists of modern times, which has been upheld by every statesman of importance in this country down to the latest, and which it was reserved for the present Government to throw away, although Pitt and Grenville and Canning successively declared it to be the mainstay of the naval power of England. I know not what may be the judgment at which your Lordships may arrive. I shall regret if this hasty, ill-considered, dangerous act of Her Majesty's Government shall receive the high sanction of the assembly which I have the honour to address. But whether it be so decided or not, I feel that I have done and will do my duty, and if I stood alone in condemning this assumption of right, not to limit by treaty, but to recognise and establish a principle of internationl law at variance with the interests of the country and without its knowledge or sanction—I say, if I stood alone, I would support the Resolutions of my noble Friend—I would divide the House upon this question—I would give to every one of your Lordships the power of recording your opinion as to the policy, the wisdom, and the safety of these proceedings. But, for my part, I solemnly protest—as derogatory to the country, as inconsistent with its dearest interests, as fraught with danger to its future greatness and power—ay! and to its future safety—I protest against the abandonment of rights, involved in that which, with all respect for his personal qualities, I cannot but characterise as the humiliating Clarendon Capitulation of Paris.
§ THE EARL OF CLARENDON
It may be inferred from what the noble Earl has said that I took part against the independence of the Belgian press, and was prepared to join with other Governments in its repression.
§ THE EARL OF CLARENDON
The contrary is the case. I defended the liberty of the press in Belgium as I do at home, and the only newspapers condemned by Count Walewski in bringing the matter under the notice of the Congress cannot be called a portion of the Belgian press, but were those papers surreptitiously printed, without the names of the printers, on the Continent, for the purpose of being 540 smuggled into France, which preach the assassination of the Emperor and the subversion of the present state of things in France. Those are the newspapers which I condemned, and those are newspapers which I think will be condemned by every friend of the liberty of the press in England.
§ EARL GREY
said, he must confess that, after hearing the explanation of the noble Earl the Secretary for Foreign Affairs of the course taken by Her Majesty's Government, he thought, when the noble Earl (the Earl of Derby) rose for the purpose of endeavouring to satisfy their Lordships that they ought to agree in passing a Parliamentary censure upon Ministers, that he had undertaken a task which would be too great even for his distinguished abilities. And the speech which had just been delivered showed that he had been right in this anticipation, for amid all the eloquent declamation of the noble Earl and the appeals he had made to their feelings, he (Earl Grey) listened in vain for any argument sufficient to support the conclusion that the course taken by the Government was open to objection or justified the vote of censure implied in the Resolutions. The objection of the noble Earl was twofold: first, he objected to the manner in which the Government had entered into the consideration of the question; and, secondly, he objected to the substance of the engagement itself. It was satisfactory to find, with regard to the manner, that the noble Earl had seen reason to modify the opinion which he expressed in the debate on the treaty of peace. On that occasion he contended that the Declaration should not have been signed without the previous assent of Parliament. He had now abandoned that ground; he had recognised the constitutional power of the Crown to bind the country by engagements contracted with foreign Powers; and had admitted that it was not fitting that the purport of such engagements should be discussed beforehand in Parliament. The constitutional principle undoubtedly was, that the advisers of the Crown were responsible to Parliament for the measures which they recommended the Crown to take, but that it was the prerogative of the Crown to take those measures without the previous assent of Parliament. And this was a wise rule of our constitution, because, if the Ministers of the Crown were compelled in their negotiations with Foreign Powers 541 to consult Parliament at every step, and to obtain its authority for every concession they might think it right to make, it would be scarcely possible to conduct these negotiations with success. The noble Earl had further admitted, that it was within the constitutional power of the Crown to declare from time to time in what manner and to what extent it should exercise its rights under the maritime law; and that, in point of fact, from the earliest times the Crown had been in the habit of thus enforcing, sometimes more, sometimes less strictly, its maritime rights during war. Orders in Council had been repeatedly recognised by our Admiralty Courts, presided over by men of the highest eminence, as constituting the law on the subject. Hence it was clear that the Crown had the power of deciding to what extent the belligerent rights of the country should be exercised, and it was equally entitled to make engagements beforehand with other States as to the manner in which this power should be exercised. But when the noble Earl admitted both these propositions, upon what ground was he prepared to vote for a Resolution which condemned the proceeding of the Government, because it had been adopted "without the previous sanction or knowledge of Parliament?" The noble Earl said this was not a treaty or convention—not a declaration of what the law should be hereafter, but a declaration of what the law was at present. What had that to do with the "previous sanction or knowledge of Parliament?"—suppose it to be acknowledged that it would have been better to enter into so important an engagement with the other Powers of Europe in some more formal manner, as for instance, by a convention, this admission would not justify the passing of such a Resolution. The truth was, that all the objections of the noble Earl resolved themselves into mere verbal criticisms upon the manner in which the Declaration was drawn up. Were their Lordships going to adopt so solemn a proceeding as a Parliamentary censure upon the Government for entering into an engagement against which no stronger objection could be made, than that it was carelessly or improperly worded? It was evident that the words, "without the previous sanction or knowledge of Parliament," had been inserted in the Resolution, not with any serious notion that they could be pressed as a valid objection, but to create a prejudice against the mea- 542 sure in the minds of persons who would not take the trouble to inquire into the real facts of the case. Coming now to the substance of the question, he might venture to say, that of the four principles contained in the Declaration there was, substantially, only one to which the noble Earl objected; namely, that in which we agreed to waive for the future the right of seizing enemy's property in neutral ships. Now, in considering the question raised by the noble Earl and his friends, it was important to ascertain how the principle now abandoned had worked in former times, and especially during that memorable struggle with France which resulted from the French Revolution. For information upon that point he had applied to the distinguished Judge who now presided over the Court of Admiralty, who in those days had a very extensive business in the prize courts, and who was therefore well qualified by knowledge and experience to describe accurately the practical operation of this particular portion of the maritime law. Dr. Lushington, in answer to his inquiries, had informed him that during the Revolutionary War the practice was that, when a British cruiser fell in with a ship under a neutral flag, an officer was sent on board to examine the cargo, and, if he found any irregularity in the Bill of lading or any of the other documents, so as to raise a doubt whether the cargo or any portion of it was neutral property, the vessel was taken into a British port for adjudication; after a considerable delay the Court gave its decision, and the goods were eventually condemned or restored; but, in the latter case, not in one instance in 500 was any compensation made to the owner of the ship or to the owners of any portion of the cargo which might not have been disputed, for all the inconvenience and expense to which they had been subjected. It often happened, indeed, when goods were restored, that they were only restored upon payment of costs. Could their Lordships conceive anything more intolerable to neutrals than such a right so exercised? He believed, indeed, that it was the extreme irritation produced by the constant annoyance and loss to which the American shipowners were subjected by the British cruisers that mainly led to the war with America in 1812. The noble Earl had stated that that war arose entirely from our exercise of the right of search, and that as we were still to maintain the rule of preventing contraband of war from being carried by 543 neutrals, we must still exercise the right of search in order to enforce this rule, so that the new regulations would do little to obviate the risk of a quarrel with the United States in any future war. He thought that this was an error on the part of the noble Earl; he must remind him that the United States had, he believed, never objected to the exercise of the right of search in time of war for the purpose of ascertaining whether ships were conveying contraband of war; the quarrel arose from the pretensions which this country put forward to search American ships, in order to ascertain whether any of the seamen were British subjects, whom we might impress into our own navy—frequently, upon very imperfect evidence, men who might have been natives of Boston or New York, were declared to be British subjects, and were removed from American ships, and it was this system of impressment, and not the exercise of the general right of search, which led to the war with America. He was happy to think that in the late war this country had shown that it could produce a naval force far exceeding any the world had hitherto beheld, without having recourse to the odious and unjust system of impressment which he trusted this example had now put an end to for ever, and by the discontinuance of which one chance of a future quarrel with the United States was averted. But by the alteration of our maritime law, to which the noble Earl objected, another great occasion of quarrel with the United States would also be removed—the claim to search American ships for enemy's property. There could be no doubt that the vexatious manner in which this power was exercised in our contest with France contributed much to produce that irritation in the United States against this country which led to the war of 1812. There was another argument in favour of the change agreed to by Her Majesty's Government which the noble Earl had overlooked. They must not forget that, if this country claimed for itself the right which noble Lords opposite supported, it must be prepared to allow the same power to be exercised against it; and how would British shipowners submit to the exercise of such a right if this country should he placed in the position of a neutral? Suppose a quarrel took place between the United States and France, in which this country took no part, would they endure it that every English ship clearing out from 544 Bordeaux should be overhauled by an American frigate, and that, if it could not be proved that all the property on board was bonâ fide English property, the ship should be sent across the Atlantic in order that the question might be considered by an American court, while the British merchant suffered all the inconvenience, delay, and expense which would be thus occasioned? How would they endure it that English vessels from New York or New Orleans, laden with cotton which our manufacturers were anxiously expecting, should be stopped by French frigates, and conveyed to French ports, while the French courts inquired whether the cargoes were the property of Americans or Englishmen? This System was bad enough in the great Revolutionary War, but when they considered how commercial intercourse had since increased, how trading transactions had multiplied, and when they remembered that during the interval the tonnage of the United States had increased five-fold, they could not believe that such a system would be tolerated for a day. Great, however, as was the injustice of the old system, it was wholly ineffectual in accomplishing the object for which it was established. He found, from political publications which he had consulted, that the law had been virtually inoperative, and that they must go a great deal further if they wished to attain their object. Frauds on the most gigantic scale were committed, and one individual covered with his protection, as a neutral, property to the value of £1,700,000, which belonged to the Dutch East India Company. It was admitted that unless they adopted the plan of cutting off an enemy's trade altogether they could not prevent neutrals from covering the property of the enemy in one way or other. If they attempted to act upon extreme principles, irrespective of all right and justice, and endeavoured to compel neutral nations to submit to any measure they thought expedient for distressing an enemy, we should have to make war with the whole world. The noble Earl opposite had said that England would be unworthy of her high position if she was not able to stand alone. That might be an eloquent part of an eloquent speech, but it was not the language of a cool and reflecting statesman. Neither England not any other nation could stand against the world in arms, and God forbid that the contrary should be the case. He did not speak 545 simply of physical power, although there was no one nation that by mere physical power could possibly stand against a combination of all the other nations of the world; he was referring to something more to be dreaded than physical force—the existence of such a general combination would imply that the nation which had provoked it was in the wrong—that it was rebuked by the public opinion and general intelligence of the world; and he was happy to believe that against such a feeling as that neither this nor any other nation would be able to stand. Let us have done, then, with such vain declamation, and such appeals to the feeling of national pride, and let us look at these matters as sober statesmen should. With that view, he deeply regretted to hear what the noble Earl (the Earl of Derby) had said, for such feelings, expressed by persons of his station, were calculated to have an injurious influence on the character of England throughout Europe and the world. In the last war between England and France, these countries vied with each other in violence and injustice; and in their insane attempts, each to distress its rival, they outraged every right of neutral nations: They brought great distress upon themselves by that policy, and were obliged, in repeated instances, to depart from it. Napoleon, whilst he made it a capital offence in France and some other countries of the Continent to introduce the produce of the British Colonies, allowed a system of licences for that traffic, by which he himself and his Marshals made a profit; and we followed the same example; and whilst we prohibited trade by the Orders in Council, we indirectly permitted it to be carried on. There was an Act of Parliament passed to prevent the exportation of Peruvian bark, which it was thought the French army was in need of; and he was informed that, on the very day that Act was passed, a licence was given by the Government of the day to a certain house in the City of London to export a quantity of bark to a certain port of the Continent, by which transaction that house gained no less than £30,000. In the last two years of the war we actually received corn from France to the value of two millions sterling a year, which was paid for by our colonial and other produce. So infinitely stronger were the natural instincts of mankind than the laws and regulations of Governments. It was well known that 546 Napoleon's quarrel with Russia arose from his attempting to compel the Emperor of Russia to exclude British produce; and it was the intolerable oppression felt by every family in Germany, in consequence of his Berlin decrees, which created the national animosity that, on the failure of his great army in Russia, made Germany rise against him as one man, and accomplished his ruin. As for ourselves, it was the same policy which inflicted the severest distress upon us at home, and involved us in the disastrous war with America. When such were its results, would their Lordships now condemn the adoption of a more rational, and, in spite of the ridicule of the noble Earl, he would say, a more humane system of policy for the future? He should therefore oppose the Resolutions; and if an Amendment, expressing approval of the conduct of the Government, had been moved, he would have cheerfully voted for it.
§ EARL GRANVILLE
I trust your Lordships will not be alarmed at my standing up at so late an hour, for I have the satisfaction of assuring you that I have not the least intention of making a speech, nor will I trespass upon your attention for more than a single moment. Although during the whole course of the war I have felt as deep an interest in this question as any of your Lordships, and although I view, with sentiments of the most cordial approval the course taken with respect to it by Her Majesty's Government, I feel that if I were to offer any remarks of my own on the subject I should only weaken the effect of the observations that have fallen from my noble Friend (Earl Grey), who, because he has declined to declaim and has only argued, has made a speech that appears to me entirely unanswerable. I may be allowed, however, to say a word in reply to the noble Earl (the Earl of Hardwicke), who has insinuated that because I spent some of my earlier days in France, I have become incapable of feeling for English honour and English interests. The imperfect knowledge of French which by that residence abroad I obtained, enables me to correct an error into which the noble Earl has fallen, when he accused the Foreign Secretary of having surrendered the past claim as well as the future; namely, I can inform the noble Earl that it is invariably the custom, in all formal documents in French, to express in the present tense 547 that which was intended to be in the future. In conclusion, I have to invite your Lordships' attention to the following letter from Lord Campbell:—Central Criminal Court, Thursday.Dear Lord Granville.—As, from the important trial still pending here, I shall not be able to be in the House of Lords this evening, I should be glad if you could find an opportunity, in the course of the debate, to explain the cause of my absence, and to state that, upon deliberation, I fully adhere to the opinion which I have before expressed in my place, that the convention for the modification of the law of maritime warfare is beneficial to England, and was constitutionally entered into by the English Government.Yours, very truly,CAMPBELL.The Earl Granville.I have read this letter at the request of the Lord Chief Justice, at the risk of having my noble and learned Friend classed by the noble Earl opposite (the Earl of Hardwicke), who possesses such remarkable discrimination and knowledge of human character, amongst the unprincipled men, such as the Lord Privy Seal beside me (and I wish there were many more of the same sort of principle), or else amongst those amiable, polite, soft persons who, like my noble Friend (Earl Grey) who has just sat down—like Oliver Cromwell, as Lord Protector—like Mr. Pitt, not the debator, but the practical statesman, in 1786—like Her Majesty's late Government, and Her Majesty's present Government, at the time of England's greatest strength—have thought that this is a concession which could be fairly and judiciously made to neutrals, without destroying for ever the naval supremacy of England.
§ On Question, their Lordships divided:—Content, present 56; Proxies 46: 102. Not Content, present 88; Proxies 68: 156. Majority 54.
§ Resolved in the negative.
|List of the CONTENT.|
|Malmesbury||Colville of Culross|
|Combermere||Willoughby de Broke|
|Crawford and Balcarres||Castlemaine|
|Leven and Melville||Gray|
|List of the NOT CONTENT.|
|H. R. H. the Duke of Cambridge||Airlie|
|Archbishop of Canterbury||Besborough|
|The Lord Chancellor||Chichester|
|St. Germans||De Tabley|
|Bath and Wells||Panmure|
|Ripon||Saye and Sele|
|Worcester||Stanley of Alderley|
|Clare||Howard de Walden|
|Lindsay||Stuart de Decies|
§ House adjourned till To-morrow.