§ THE EARL OF DENBIGH
rose to ask whether the Declaration of 1856 had been ratified by Her Majesty in Council, and to present Petitions of Inhabitants of 198 Birmingham, Armley, South Shields, Chorley, Cononley, Bolton, and Maid-stone against the validity of the Declaration of Paris concerning the Seizure of an Enemy's goods on the High Seas. The noble Earl said, it was extraordinary how few persons were acquainted with what that Declaration really was, and he would therefore briefly give its history. When the Plenipotentiaries who had been engaged in negotiating the peace with Russia had concluded their labours, Count Walewski suddenly proposed that before separating they should sign a Declaration with respect to maritime law to the following effect:—First, that privateering should be abolished; secondly, that a neutral flag should cover an enemy's goods with the exception of contraband of war; thirdly, that neutral goods, with the exception of contraband of war, should not be liable to capture under an enemy's flag; and fourthly, that a blockade in order to be binding must be effective. Some of the Plenipotentiaries stated that they must refer the matter to their respective Governments; but eventually they all signed the Declaration, and other nations were invited to accede to it. Spain, the United States, and Mexico had, however, abstained from doing so. Now, we had behold with wonder, not unmixed with awe, the rapid growth of Prussia into a powerful and gigantic Empire, which by its energy and military talent had succeeded within five years in crushing two of the greatest military Powers of Europe and our natural allies, Austria and France, and how on both occasions she had bee nursed by Russia, which had guarded her boundaries while she was engaged in those wars. This naturally aroused the attention of England, and compelled her to examine her own forces, and she found to her alarm that she could not properly equip and place in the field more than 500,000 troops, the Regular Army not exceeding 200,000, and the Militia and Volunteers, which raised the complement to 500,000, being more or less undisciplined. We were now endeavouring to make up for this, and to match ourselves with Germany and Russia—a nation of 30,000,000 against two nations of 40,000,000 and 80,000,000—and a system of voluntary enlistment against a system of conscription. In this we seemed to have very little chance of success—it was, indeed, like the frog 199 in the fable which tried to swell itself to the size of the ox. We were trusting to the chapter of accidents and to our former good fortune; but it should be remembered that we did not possess the same power of offence and defence as formerly. We had been proceeding on the assumption that because we desired to be at peace and to make no enemies every one would be willing to let us alone. But it would be well to consider whether we had any friends, and whether any Power was likely to help us in our hour of need. He feared that our policy of neutrality on many occasions had produced great coldness; and what security had we that the unscrupulous statesmen who ruled with a rod of iron the German Empire would not, when we least expected it and were least prepared, offer studied insult to this country which would oblige us to engage in war? He could not help feeling the humiliating confession made, as he understood, by the noble Earl opposite (Earl Granville) during the recent discussion on the revision of the Treaty of 1856, for he admitted in almost so many words that we were obliged to conform to the wishes of Russia in the matter of the neutralization of the Black Sea, because we were not in a position to resist those wishes by force. There would be very little difficulty on the part of Germany in forcing us to go to war if she were so disposed, and she would not want for motives. Germany wished to become a great naval Power, and would like Holland and Belgium, the independence of which latter we had guaranteed; while Russia wished for Constantinople, the key of the East and the West, and after the defeat of Austria and France we were now the sole protectors of Turkey. Our Navy was formerly our chief means of defence; but we had now lost all power of injuring an enemy by sea, while our Army was utterly inadequate for offence or defence. As steam rendered an enemy almost ubiquitous, we should, unless prepared by fortifications round the island, well manned, be taken at a great disadvantage and though, we should send out our iron-clads and swift cruisers, the enemy's fleet would remain in port, preserved by torpedoes, while his commerce would be transferred to neutral bottoms, where, under the Treaty of Paris, they would be safe. This was the case in the Crimean War; for England and 200 France having foolishly admitted that a neutral flag should cover the enemy's goods, the commerce of Russia passed through Prussia, Russia thus receiving about £17,000,000 of our money, and being thus enabled to prolong the war. The enemy, on the other hand, would fit out cruisers to prey on our commerce, the right of insurance would rise, British merchants would prefer neutral bottoms, our merchant ships would rot in their harbours, and our sailors would be attracted by high wages and safety to neutral ships. Our Navy, too, would seek in vain for the enemy, and there being no prize-money in prospect sailors would not man our fleet. The enemy would be able, therefore, to undertake some such scheme as that described in the "Battle of Dorking." In a recent discussion in the House of Commons on the subject, the Declaration was defended on the ground that we should make the best of a bad job, and the Attorney General attempted to prove that England was previously bound by similar engagements; but this he (the Earl of Denbigh) denied. He maintained with the Petitioners that the Declaration, not being an agreement or treaty, was not binding—1. Because a treaty can be made only by authority of the Sovereign, and the British Plenipotentiaries who signed the Declaration of Paris had no authority for that purpose from the Queen of England. 2. Because no document is a treaty till it has been ratified by the Sovereign, and the Declaration of Paris has never been ratified by the Queen. 3. Because the Declaration of Paris affects to Change the law of England, and no treaty changing the laws of England is valid without the consent of Parliament, and the Declaration of Paris has never been assented to by Parliament. 4. Because the Declaration of Paris affects to change not the conventional, but the permanent and immutable law of nations, to change which is beyond the competence of Parliament or of any other human authority. 5. Because a treaty must profess itself a treaty, which the Declaration of Paris does not, but describes itself as a 'declaration adopted' in order 'to introduce into international relations fixed principles' on maritime law, and 'to establish a uniform doctrine on so important a point;' while, in fact, no uniform doctrine has been established, the United States, Mexico, and Spain not having adopted the Declaration of Paris. 6. Because a treaty must contain reciprocal and equivalent obligations—that the only equivalent, so far as Prussia and Russia are concerned, for the surrender of our power, which is purely maritime, would be a surrender of their power, which is purely military. 7. Because, though it has been alleged that the abolition of privateering was an equivalent for the surrender of our right to seize enemies' goods in neutral vessels, privateering 201 has not been abolished, being avowedly retained by Spain, Mexico, and the United States.By adhering to the Declaration we should be inflicting on ourselves a mortal injury; and it was remarked at the time by the late Lord Derby and by a noble Earl opposite that in case of necessity we should have to abandon it. This, however, it was better to do before a war broke out, as war might thereby be prevented by showing the uselessness of any Power going to war with us. In 1780 the "Armed Neutrality" was entered into on the principle that free goods made free bottoms; but, although then at war with our American colonies and with France and Spain, we refused to admit the principle, continued to seize the enemy's goods and broke up the league In 1801 the same tactics were attempted by Russia, which induced Sweden and Denmark to co-operate with her; but what course did this country take? The King, in his Speech to Parliament, said—A convention has been concluded by the Court of Russia with those of Copenhagen and Stockholm, the object of which is to renew their former engagement 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 recognized in Europe.Lord Eldon, in the debate on the Address, said—The right of searching neutral vessels originated in the rights of nature, and no convention or treaty can permanently destroy that right."—[Hansard, Parl. History, xxxv. 886.]The Convention was broken by the Battle of Copenhagen, and Lord Nelson, in a despatch dated April 4, 1801, narrated a conversation with the Crown Prince of Denmark, to whom he had said—Suppose that England were to consent, which she never will, to this freedom and nonsense of navigation, I will tell your Royal Highness what the result would be—ruination to Denmark, and the Baltic would soon change its name to the Russian Sea.Sir William Scott, moreover, declared a military war and a commercial peace to be a state of things not yet seen in the world; and Sir John Nicholls, King's Advocate, in an argument before Lord Kenyon, said—"There is no such thing as a war for arms and a peace for commerce." 202 We had more steamers than the rest of the world put together, and he recently, in an extract from the report of Mr. Joseph Nimmo, jun., chief of the division of tonnage on English commerce at Washington, met with the following remarkable words:—England now enjoys almost a monopoly of the steam Navy of the world, and her power on the ocean is as great as when she overthrew the maritime power of Holland, and made herself commercial mistress of the seas. The most striking point is that in the trade of the United States with Europe there are now 133 foreign steamers engaged, of which 101 are British, and not one wearing the American flag.These steamers it would be our interest, in case of war, to fit out as privateers, while it was, of course, the interest of the other Powers to discountenance privateering and to represent it as legalized piracy. If, however, it was right to employ francs-tireurs on land, why should not privateers be employed at sea? If we could not touch an enemy's goods on board a neutral ship, any war in which we might be involved would be much more protracted. There was a maxim "the command of the sea gives the command of the land," and we could not afford to throw away our chances, for recent events in France offered us a warning. The fratricidal conflicts which had just happened were the fruit of socialistic doctrines, and the International Society was said to have its head-quarters in this country, where, according to a statement in the leading journal, it had 95,000 adherents. Last year, moreover, the Prime Minister received a deputation from Messrs. Odger and Co., who represented the Communists; and on the Treasury bench in the House of Commons sat one who seven years ago was the intimate friend and trusted correspondent of the arch - conspirator of Europe, Joseph Mazzini. We trusted too much to our insular position; but he feared we were sowing the wind, and that unless we withheld our hand in time we should reap the whirlwind. Since England had first embarked in and sanctioned unjustifiable aggressions she had apparently lost her sense of justice and had been struck with judicial blindness. Like a Samson shorn of his strength and blinded at the hands of the Philistines, she made weak concessions, and could only utter protests, which were generally disregarded. England could rehabilitate herself, and by a stroke of 203 the pen could recover her maritime supremacy; but until by her conduct she earned the blessing of the Almighty she could not utter the Scotch motto—"Nemo me impune lacessit." The noble Earl then quoted the following passage from Vattel as to the nullity of treaties pernicious to the State:—Though a simple injury or some disadvantage in a treaty be not sufficient to invalidate it, the case is not the same with those inconveniences that would lead to the ruin of the nation. Since in the formation of every treaty the contracting parties must be vested with sufficient powers for the purpose, a treaty pernicious to the State is null and not at all obligatory, as no conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the State, for whose safety the Government is intrusted to him. The nation itself being necessarily obliged to perform everything for its preservation and safety, cannot enter into engagements contrary to its indispensable obligations.He would conclude by putting his Question, Whether the Declaration of Paris had ever been ratified by the Queen in Council?
§ EARL COWPER
replied, on behalf of the Government, that the Declaration had never been ratified by Her Majesty in Council, but that they did not on that account consider themselves at liberty to repudiate it. The question of the treatment of neutrals had often been debated in Parliament, particularly 15 years ago, when this Declaration was signed, and it had been received generally with favour by their Lordships; and therefore he conceived it was not necessary for him to argue the matter further than to express his conviction that the Declaration had a tendency to mitigate the evils necessarily arising from war. It had been shown that during the 150 years prior to the French Revolution, 34 agreements were entered into between this country and other Powers, in all but three of which it was provided that free ships should make free goods.
§ THE EARL OF MALMESBURY
said, he did not regard the Declaration as a document of as sacred a character as a ratified treaty. Sir George Lewis admitted, during the discussions of 1856, that if we were at war with any of the parties to it, it would cease to be binding as regarded that belligerent; while the late Lord Derby went so far as to declare that England had cut off her right hand, and called it the Capitulation of Paris. At 204 the same time, Lord Derby held that all the Powers which had subscribed to the Declaration, and had not since disavowed it, were morally bound by it; but that we had a right to disavow it if our Government thought fit to do so. With regard to privateering, it was impossible to believe that if we were at war with some maritime Power, and met with a disaster at sea, we should adhere to the Declaration, instead of making use of those private means which we possessed above all other countries. Queen Elizabeth repelled the Armada almost entirely by private ships, which we now called privateers; and to speak of the Declaration as irrevocable was to lock up all the weapons of self-preservation which some contingency might render necessary. He did not recommend the Government to disavow the Treaty; but he wished to repeat the opinion he expressed at the time that it would have been better had it never been made, and principally because he believed that in time of war it would be impossible to maintain it. His lamented Friend Lord Clarendon, in his able defence of the Treaty, principally relied on the contrast between what took place at sea and what actually occurred on land. Lord Clarendon said the great object of modern civilization was to mitigate the horrors of war and oxtend and define the rights of neutrals; but that this had not been with respect to war by sea as it had been with respect to war by land, where the properly of neutrals, and even of peaceful subjects of the enemy, was respected. Now, the late war had proved that his lamented Friend was too sanguine in his views as to the progress of civilization, for in the recent war—14 years after the Declaration—the Germans did not respect private property on land—they made monstrous requisitions on private property, and in many cases there were cruel instances of pillage of private property. Lord Clarendon was under the delusion that these things would not happen, and that belligerents at sea could be placed on the same civilized footing as those on land; but these were all vain dreams. War would always be war, and bring with it all its horrors. It was all very well in fine weather and in time of peace to fancy that we could carry on war, as had been said, with rose water; but depend upon it, when the terrible pressure 205 came, the sword would cut into shreds paper which had been signed during any peace. The vanity of the expectations that were entertained in 1856 was further evidenced by subsequent events—especially that admirable proposition that no war should begin without a previous attempt to mediate. This had proved an entire dead letter in the Danish War, the Italian War—when he himself pressed it on the belligerents—the Prusso-Austrian War, and the War of 1870—though in the last case the noble Earl opposite (Earl Granville) did his best to take advantage of that Protocol. Such Protocols or Declarations, in his opinion, did more harm than good, for they were only meant as lovers' promises, made to be broken. If we were at war with any great nation, the force of circumstances alone would oblige us to abandon the Declaration of Paris and resume the position we formerly hold.
§ EARL GRANVILLE
said, the noble Earl who had just sat down had referred to two considerable authorities in support of the Petitions—Sir George Lewis and the Earl of Clarendon. But he (Earl Granville) thought that Sir George Lewis's opinion—that if we were at war with one of the parties to the Declaration it would no longer be binding as between that belligerent and ourselves—confirmed rather than weakened the sanctity attributed to it by his noble Friend (Earl Cowper), for this was exactly what happened with the most formal treaties ratified in the most solemn manner. The late Lord Derby, moreover, deemed that the Powers which had signed the Declaration, and had not disavowed it—as none of them had done—were bound in honour to observe it. But then the noble Earl (the Earl of Malmesbury) proceeded to make a statement which he could not but think—considering that the noble Earl was an ox-Secretary of State—was not a very judicious one. The noble Earl commenced by saying that he discountenanced what had been suggested by the noble Earl who introduced the subject, and what had been alluded to in "another place"—namely, that the Declaration ought never to have been entered into; that it would prove impracticable to maintain it in time of war; and that those nations who had signed it ought to withdraw from it.
§ THE EARL OF MALMESBURY
said, the noble Earl had misunderstood him. He said he did not wish that this country should repudiate it now.
§ EARL GRANVILLE
But his noble Friend went on to enunciate what he considered the extraordinary doctrine that whenever we found it inconvenient to ourselves we should dispense with those honourable engagements into which we had entered. He entirely agreed that it would not be advisable, on our part, to repudiate it at the present moment; and at the Black Sea Conference he did not see what possible argument he could have brought forward for doing it. It was necessarily connected with three other propositions, and since 1856 no objection had been taken in the House of Commons to the doctrines there laid down. It might, no doubt, do harm to an enemy to seize his goods in a neutral bottom; but in the long run we did ourselves infinitely more harm and him good, by enlisting the feeling of the neutral in favour of the enemy. In the late war France made little use of her Navy—which, indeed, he believed, was not in a very efficient state—but she had the command of the sea, and but for this Declaration she would have been entitled to search our enormous Mercantile Marine in order to discover the enemy's goods. Now, he believed that would have made our neutrality perfectly impossible. It would have created an irritation in this country, and, rightly or wrongly, we should have resented it to the greatest degree. With our enormous military marine, moreover, we had the power of instituting an effective blockade, to which the right of blockade was specially confined. Without, however, arguing questions already settled, he would simply protest against the doctrine that we were at liberty, though we ourselves had been protesting against similar conduct, to say that whenever an international declaration by which we were bound in honour was inconvenient we could immediately withdraw from it.
§ LORD COLCHESTER
said, he could not but think that the noble Earl (the Earl of Denbigh) had done good service to the country in bringing this question again into notice. He was as unwilling as anyone to propose the repudiation of treaties; but we had of late years seen that the most solemn international arrangements 207 were not very long-lived, and that treaties regulating the most important concerns of Europe were in a few years sot aside and disappeared. He was somewhat surprised when the noble Earl opposite (Earl Cowper) referred to the long series of treaties by which the right under discussion had been waived in former times. In all these treaties, with scarcely an exception, if we abandoned the principle of seizing enemies' goods in neutral ships, we claimed in return that of seizing neutral goods in enemies' ships—a very different thing from the unconditional surrender of our right at the Treaty of Paris. Usually any concession to which two Powers agreed as to the limitation of their rights in time of war, put each, at least as belligerents, on the same footing as his enemy. But here our obligation was to the neutral, not the belligerent. If he rightly understood the case, under the present law, if we were at war with America, who had not been a party to the Declaration, America could seize our goods in French or Russian bottoms, while we, bound by this Treaty, could not seize American property in the vessels of any nation which was a party to the Treaty. As to the argument drawn from irritation created in the mind of neutrals, much irritation was often created by the exercise of the right of blockade; but few persons considered, though it had been put forward in theory, that the right of blockade ought to be modified or abolished. But it was not only in the interest of England that that Treaty was open to exception. Mr. John Stuart Mill—certainly not a man wedded to ancient laws or opinions—stated a few years ago his opinion that it was most objectionable in the general interest of the freedom of the world. He saw that it was a measure weakening the force of naval Powers—a force seldom formidable to national independence — and thereby strengthening military Powers, whose force was often extremely formidable to the rights of others. We resisted the power of Napoleon I., because when he was all-powerful by land we were so at sea; when he was master of Europe we drove all French commerce from the ocean. But now, in a struggle with a military despot we should, fettered by that Declaration, possess no such advantage as in former times. He feared that under present circumstances England 208 could not shake off the encumbrance of that obligation; but he trusted that if international treaties were once more to be modified—if other Powers desired to be relieved from any "of the treaty obligations binding on them," we might endeavour to obtain a modification of an agreement, injurious, he thought, to the power of England, and injurious also to the highest interests of the world.
§ Petitions read, and ordered to lie on the Table.