Lords Sitting of 12 July 1875

MINUTES.
PUBLIC BILLS—Committee—Report—Royal Irish Constabulary* (182).
Report—Ecclesiastical Commissioners (Fen Chapels) * (204).
Third Reading—Pollution of Rivers* (203); Medical Acts Amendment (College of Surgeons) * (165); Local Government Board's Provisional Orders Confirmation (Abordare, &c.) * (123), and passed.

GERMANT AND BELGIUM—INTERNATIONAL LAW.

  QUESTION. OBSERVATIOHS.
  LORD PENZANCE, who had given Notice to call attention to the following passage in the despatch of the German Minister to the Minister for Foreign Affairs of the King of the Belgians, dated the 3rd of February 1875:—
  "They are incontestable principles of International Law that a State ought not to permit its subjects to disturb the internal peace of another State, and is bound to take care by its laws that it is in a position to fulfil this international obligation:"
  and to ask the Secretary of State for Foreign Affairs, Whether any application has been made to Her Majesty's Government to acquiesce in any such principle as one of International Law; and, if so, with what result? said, that the Question of which he had given Notice with reference to International Law was one which he was persuaded their Lordships would think was well worthy of consideration. As the Question arose upon a Correspondence between two foreign Governments, he wished most definitely to disclaim any desire to enter into the cause which had given rise to that Correspondence. The Correspondence had taken place between the Governments of Germany and Belgium, and it seemed that in it the Ger-

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  man Government complained that a plan or plot had been formed in Belgium for the assassination of Prince Bismarck. What he had to say would have no reference to this. But in the Correspondence other topics had been dealt with—such as that in Belgium certain opinions had been published in reference to the Roman Catholic Church which the Government of Germany thought very injurious to the interests of their country, and likely to disturb their internal peace; and in respect to these publications, Germany desired certain steps to be taken. Whether the complaint was well founded, and what notice should have been taken of it by the Belgian Government, were questions upon which he had no desire to say anything. But in the course of the Correspondence he found that the German Minister, in support of his complaint against Belgium, made a statement as to a general rule of International Law which might be applicable under the varying circumstances of different times to all civilized nations. This principle was asserted to be one that was beyond all question; and it was because he (Lord Penzance) believed the principle to be novel, erroneous, mischievous, and likely to become dangerous, that he ventured to call their Lordships' attention to it. It might be said that it hardly devolved upon their Lordships' House, and still less upon any individual in it, to raise the question; but this Correspondence had been handed by the German Government to Her Majesty's Government, and therefore it was that he founded a Question upon it. The Correspondence had been in an official way communicated to Her Majesty's Government, and Her Majesty had been most graciously pleased to order it to be laid upon the Table of the House; and therefore the attention of their Lordships had been invited in the most legitimate way to it. The German Minister in his despatch said—
  "They are incontestable principles of International Law that a State ought not to permit its subjects to disturb the internal peace of another State, and is bound to take care by its laws that it is in a position to fulfil this international obligation."
  From the generosity of this language it might be supposed that the disturbance of internal peace alluded to was a phy-
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  sical disturbance; but the Correspondence which had taken place showed that this was not so, for what was complained of was that there had been publications in Belgium which the Belgian Government did not restrain, which more or less expressed sympathy with clergymen who had been imprisoned in Germany in consequence of resistance to the law of the State. The proposition laid down, therefore, as it was explained by the other parts of the Correspondence, was shortly this, that "a State ought not to permit its subjects to disturb the internal peace of another State by publications having that tendency." This was surely a proposition of extreme importance, which required mature consideration, and which ought not to be adopted, if adopted at all, without considerable hesitation. He took leave to say that no State had the right to ask of another State that it should restrain a publication within its own territory because that publication might with respect to another Government produce a certain amount of disturbance. What was published in one country could not disturb the subjects of another unless what was so published found its way into that other country; and the remedy was in the hands of that other Government by preventing the publication from finding its way into its own territory. Each State was supposed to have the command of its own territory, and of all the approaches to its own territory; and every State was taken to have the means of keeping out of its own territory publications which it objected to. In former times there was no such public opinion in Europe as existed at present, because national intercommunication had not been established as it now existed; but the effect of adopting the proposition he was inviting the House to consider would be to destroy the public opinion which had of late years grown up in Europe and from which great advantages had arisen. But it was necessary to observe the way in which the proposition was put. It was not put as an appeal to friendly offices—it was not put even as a demand to set in motion such laws as might exist in the State when such publication was made; but the matter was elevated into an absolute duty from which there was no escape, whatever the occasion or circumstances might be, to restrain the pub-

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  lication complained of. There was much involved in that duty. The adoption of such a new rule would involve the necessity of a nation being bound not only to put in force such laws as it had, but to make new laws, if need be, adequate for the purpose. Nay, it would even involve the necessity, if verdicts could not be obtained, of abandoning trial by jury. Where, he asked—in the writings of what author—was to be found such a principle as this, as binding between civilized States? The only International Law hitherto promulgated and acted upon was sufficient for all reasonable demands, and it was this—If a foreign Power conceived that the municipal law had been broken to its detriment by a subject of any other State it would bring the circumstances before the Government under whose laws the offender lived, and demand his punishment if it could prove the offence; and in such case it was for that Government to exercise a fair discretion in becoming prosecutors under that law. This surely was sufficient to meet all ordinary cases. In times past it had happened, and it might happen again, that questions of this kind had been tried by juries, and sometimes it was not easy to get convictions; but if the proposition laid down by the German Minister were made an international obligation the whole system would have to be altered, for there were many cases that came within it for which English juries would not convict. In fact it would be necessary if the principle laid down was to be acted upon to enact a law which would be sufficiently strong for the purpose. If it was really a duty, really an international obligation, it would be no excuse for failing to fulfil it to say that your laws were not strong enough to do so. And then would be heard again a word which had been rife of late times—the word "compensation." The whole of these results, which would flow from an adoption of the principle laid down were, to say the least of them, novel, and he had been unable to find any precedent in the history of civilized nations to justify the adoption of such a proposal. It was for a nation to put in force its laws in the case of its own subjects, and what more should a foreign Power ask when it was sought to rectify a wrong? Vattel, the distinguished writer on the "Law of Nations," pointed out
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  the difference between perfect and imperfect rights:—all that foreign Governments had a right to ask was that you should put in force the existing law that prevailed in your own country. The First Napoleon addressed remonstrances to this country with reference to publications here, and Lord Hawkesbury, in a despatch of August 28, 1802, stated that—
  "His Majesty neither can nor will, in consequence of any representation or measure from a foreign Power make any concession which may, in the smallest degree, be dangerous to the liberty of the Press, as secured by the constitution of this country; but, he continued, there exist judicatures wholly independent of the Executive, capable of taking cognizance of such publications as the law deems criminal, and they may investigate and punish not only libels against the magistracy and government of this kingdom, but those reflecting on the individuals in whose hands the administration of foreign Governments is placed. The British Government is perfectly willing to afford to the French Government all the means of punishing the authors of any writings which they may deem defamatory, which they themselves possess; but they can never consent to new model their laws or to change their constitution to gratify the wishes of any foreign Power. 'If,' it added, 'the French Government were dissatisfied with our laws on the subject of libels, they may punish the vendors or distributors of such writing as they deem defamatory in their own country, or increase by additional penal regulations the risk of their circulation within their own bounds.'"
  In that Despatch the matter was placed on a true and sound footing, and he trusted that no Government in this country would be induced to depart from it. He dreaded to think of the effect of such a demand if made on this country. What prospect would there be of passing a proposed change in the law regulating the freedom of the Press made at the instance of a foreign State? It would be impossible. In this country free comment was most beneficial, and no proposition to control or restrain it would for a moment be entertained. He earnestly desired that, if the time should come when any foreign Power should ask us to make more stringent laws as to publication in this country, on the ground that it interfered with their internal peace, we should be free and unfettered to meet that demand, and that was the reason why he hoped that no sanction, either direct or indirect, and no countenance by a silence that might be adversely construed, should be given to this novel

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  and dangerous doctrine. He begged to ask the Secretary of State for Poreign Affairs, Whether any application has been made to Her Majesty's Government to acquiesce in any such principle as one of International Law; and, if so, with what result?
  THE EARL OF DERBY: I am sure your Lordships all feel the importance of the subject which the noble and learned Lord (Lord Penzance) has made the subject of discussion, and that it is well worthy of the attention of the House. The Question which the noble and learned Lord has addressed to me is one which I have no difficulty in answering. No application has been made to Her Majesty's Government to acquiesce in the particular principle of International Law contained in the passage which he has quoted. The Correspondence in which it occurs, relating mainly to the affair of Duchesne, was communicated to the British Government for information only. It was communicated in the first instance in a confidential manner, and at no stage of the discussion was any appeal addressed to us or any request made for our interference. I might say more—I believe that to the Belgian Government, at least, an offer of mediation would not have been acceptable; because that Government, taking from the first a very sensible and judicious view of the situation, desired nothing less than the raising of a small and easily-settled question into one of European importance. If we had thought that our good offices were necessary or desirable for the maintenance of our good relations, they would have been freely offered: but we did not think so; and the result has justified what we did—or rather what we did not do—for the matter, so far as the Duchesne question is concerned, is disposed of, as I believe without leaving any unfriendly feeling on either side. As to the other question, I should be reluctant to raise a general or abstract controversy upon a passage such as that which the noble and learned Lord has quoted. In practical life, we often find that people arguing a case, whether in diplomacy, or in Parliament, or in Courts of Law, lay a foundation much wider and more extensive than is necessary to support the superstructure which they intend to raise. We have most of us heard sound and defensible conclusions supported by ar-
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  guments of very questionable validity; and if I had to express an opinion on this demand I should have looked to the substantial justice or injustice of the thing demanded, to the merits of the particular case which was being discussed, rather than to the precise words or arguments which happened to be used in discussing it. And I should the more readily have taken that course because the words quoted, as I read them, are so vague and general that they do not admit of judicial interpretation. "A State ought not to permit its subjects to disturb the internal peace of another State." Very well; but what is disturbing the internal peace of another State? If the proposition is put in this way—"All Acts committed by the subjects of one State which have a tendency, however indirect and remote, to cause disturbance in another State, ought to be forbidden"—then it amounts to a claim so monstrous and unreasonable that one may safely affirm that it never has been put forward by European diplomacy, and that it probably never will be. To take an example:—The abolition of slavery in one country may have a strong tendency to disturb the internal peace of a slave-owning community in an adjoining country. A political revolution, in whatever sense it is made, tends, by the sympathy it creates, or by the alarm which it excites, to produce important changes beyond the frontier of the State in which it occurs. But no one has ever said that in altering its own institutions a State was bound to take into account the effect which such change might have on its neighbours. That interpretation of the words must therefore be put aside as extravagant. But if we put an opposite construction upon them—a construction which they will equally well bear—and read them in this way—"There are some acts, tending to disturb the internal peace of another State, which by International Law a State is bound on that ground to forbid"—if, I say, the claim is carried no further than that, it is a claim which, within certain limits, more or less defined, I conceive that every civilized Government has in practice admitted. The difficulty, as I conceive, is where to draw the line; and it is a difficulty which I am afraid we shall not easily solve. We speak of International Law, and it is a convenient

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  phrase; but in the strict sense of the word, law presupposes the existence of a Legislature to make it, a Judicial Authority to declare and to define it, and an Executive to enforce the decisions of the tribunals. Now, in the case of that assemblage of international usages which we call International Law all these three conditions are wanting; and, as a natural consequence, it follows that though certain leading principles are universally admitted, yet in matters of detail you have nothing like the precision and accuracy which distinguish—or, at least, ought to distinguish—law, as framed by a national Legislature and interpreted by a national tribunal. These are my two reasons for not undertaking to criticize the language of the German Government which has been read. In the first place, I have never been required, for any practical object, to do so; in the next place, I cannot take on myself to say exactly what they mean. I agree in much that has been said; but it is not at all clear to me that the German Government would put the construction on its words which has been put upon them. If I rightly understand the doctrine laid down by the noble and learned Lord, there is one part of it to which I should hesitate before giving an unqualified assent. The noble and learned Lord seemed to lay it down as an abstract and general proposition—and I did not understand him to admit exceptions to it—that each State is necessarily supreme in the making of its own municipal law, and that no other State has a right to call upon it to make alterations in that law. That doctrine, no doubt, represents the general rule; but, if laid down unconditionally, it seems to me open to criticism, because it shuts you up to the conclusion that every State must be the sole judge for itself what its international duties are. Now, that is equivalent to saying that there are, or soon will be, as many different systems of International Law as there are independent States; and that, again, is very much like saying that there is no such thing as International Law at all. It seems to me—speaking with great deference—that if a State lies under recognized international obligations towards another State, it is no answer to a charge of non-fulfilment of those duties that they were not fulfilled because mu-
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  nicipal law did not allow of their fulfilment. The State aggrieved might surely reply to that plea—"What is that to us? If your law is defective, you can mend it; but the badness of your municipal legislation does not lessen our rights or our claims as against you." Once admit that no nation can be called upon to amend its internal laws, however defective, by any other nation, and you put an end to all international compacts. For, on that hypothesis, a State, wishing to free itself from an inconvenient obligation to another State, has nothing to do except to alter its own laws in such a manner as to make the fulfilment of that obligation impossible; and then, according to the theory, the obligation itself ceases. Surely, that is very like saying that no State is ever to be bound to anything:—and then, what are treaties worth? As regards the practical conclusions which the noble and learned Lord draws, I do not know that there is much difference between us. That one foreign Government should call on another to silence its Press, or its public speakers, is an act which has always excited—and, I hope, always will excite—a general feeling of sympathy and of indignation in this country. But, as I conceive, that feeling arises not so much from attachment to any particular principle of International Law, as from a conviction that the act in question is arbitrary, is oppressive, and is injurious to civilization. We believe free speech, and free writing, to be essential elements of civilization, and we therefore regret and resent anything tending to their suppression. We hold, moreover, that any State can protect itself, if it pleases to do so, against foreign journalism or foreign writings—it can exclude them more or less completely from its own territory, and any interference beyond its frontier is therefore unnecessary and vexatious, as well as unjust. We believe, further, that comments by foreigners on the conduct of contemporary statesmen have great utility and value, and that a Government acts unwisely which deprives itself of that source of information. But, in saying this, I must ask your Lordships to remember that we are discussing a contingency which has not occurred, and which, very probably, may not occur. We have no reason to suppose that any attempt will be made to silence by menace the Bel-

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  gian Parliament or Press. That being so, and the question in the present state of affairs being purely speculative, I think your Lordships will excuse me if I do not say more on the present occasion.
  House adjourned at a quarter past six o'clock, till To-morrow, a quarter before Five o'clock.