RESOLUTION. (Hansard, 21 May 1885)

§ LORD LAMINGTON
said, he rose to call the attention of the House to the Declaration of Paris of 1856, which has never been ratified by Parliament or received the consent of the Sovereign; and to move— That it is our duty to withdraw from this Declaration, and thus maintain our ancient 1001 maritime rights so essential to the power and the prosperity of the Empire. He thought, now that there was a reasonable prospect of peace, the subject could not be objected to as inopportune. As far as he knew, it had not been discussed since 1875. As their Lorships doubtless knew, the law of nations, until the year 1854, had always recognized the right of a belligerent to seize any goods in a vessel belonging to a hostile country and to issue letters of marque. This right enabled a Maritime Power to exercise against a belligerent nation its full naval force. It was said by some now that war should be carried on at sea according to the same principles which were recognized in warfare on land, and that on land war should be carried on with as much respect as possible for personal property and for the safety of non-belligerents. These principles, however, were certainly not universally regarded in all land warfare. How, for example, had war been conducted in the Soudan? A fortnight ago, the following description appeared in The Times:— The enemy "being dispersed, 'breakfast' was the next order given. The village was looted and burnt. It was evident that the enemy had been taken by surprise, as we found many camel saddles and cloths, earthenware vessels, bags of dourra, and water skins. We also destroyed the well with gun cotton. … The Arabs fought bravely, but without that desperate courage which six: weeks ago cost us so dear. The capture of their herds must tend to exhaust their resources, and prevent future mischief. We have done the enemy all the harm we could—thus fulfilling the primary object of warfare. Now, it was undoubtedly the primary object of warfare to do the enemy all the harm one could. On sea there were no wells to be destroyed, no villages to be looted and burnt; the only thing to be done was to capture the enemy's goods. Lord Mansfield said— The goods of an enemy on board the ships of a friend might be taken, and contraband goods going to an enemy, although the property of a friend, might be taken. And these were the words of Lord Eldon— A war and a commercial peace is a state of things not yet seen in the world; there is no such thing as a war for arms and a peace for commerce; and the right of visiting and searching merchantmen on the high seas, whatever is the cargo, whatever the destination, is the incontestable right of the lawfully commissioned cruisers of a belligerent State. 1002 Lord Nelson, in 1801, said— The proposition that free ships should make free goods was one so monstrous in itself, so contrary to the law of nations, so injurious to the maritime interests of the country, that if it had been insisted on we ought not to have concluded peace with those Powers while a single man, a single shilling, or even a single drop of blood remained in the country. Napoleon said— The greatest blow that could be given to England would be to make her give up the right of search. Mr. Pitt, in 1806, said— Shall we voluntarily give up our natural rights and expose ourselves to scorn, derision, and contempt? No man can more than I deplore the calamities of war; but will you silently stand by, and, admitting these monstrous, unheard-of principles of neutrality, insure your enemy against the effects of your hostility? Lord Hawkesbury said— His Majesty has expressed his unalterable determination to maintain the established principles of maritime law. Mr. Canning said— The rule of maritime law which Great Britain holds is the ancient law and usage of nations. England has sustained wars rather than give up this principle. These were high authorities, and in the face of such authorities we should consider well before carrying out the Declaration of Paris. Her Majesty's Government should consider whether we had acted wisely in 1854. In that year one of the most extraordinary things was done, and no explanation of it had ever been given in Parliament. In 1854 we were going into the Crimean War, and Lord Clarendon, for whom he had the greatest respect as a statesman and gentleman, and against whom he would not say a word—ho was limiting himself to a statement of facts—on February 16 of that year, in reply to questions put to the Foreign Office, wrote as follows:— All neutral property of a belligerent is lawful prize of war; such property will be condemned as prize, although its owner may be a native-born subject of the captor's country, and although it may be in transitu to that country, and its being on board a neutral ship will not protect that property. But on the 24th of March, 1854, the following Order in Council was issued:— Her Majesty will waive the right of seizing the enemy's property taken on board a neutral vessel unless it is contraband of war. It is not Her Majesty's intention to claim the confiscation of neutral property not being contraband of war found upon neutral ships; and Her Majesty further declares that, being anxious as much as 1003 possible to lessen the evils of war, and to restrict its operation to the regularly organized forces, it is not Her present intention to issue letters of marque for the commissioning of privateers. How was that discrepancy between February 16, 1854, and March 24 of the same year to be explained? The fact was the abolition of our maritime rights was demanded by the Emperor of the French. The Plenipotentiaries at Paris bad no power whatever to go into the subject. Count Walewski proposed to the Congress to conclude its work by laying down the four following principles:— (1.) The abolition of privateering: (2.) the neutral flag covers enemy's goods, except contraband of war; (3.) neutral goods, except contraband of war, are not liable to capture even under enemy's flag; (4.) blockades are not binding in so far as they are effective. But so little power had the Plenipotentiaries to deal with 1be matter that Count Orloff observed that, the powers with which he was furnished having for their sole object the restoration of peace, he did not consider himself authorized to take part in a discussion which his instructions had not provided for. And Count Buol, the Plenipotentiary of Austria, declared— As regards the principles of maritime law which the first Plenipotentiary of France has proposed for adoption, that he appreciates their spirit and hearing, but that, not being authorized by his instructions to express an opinion upon a matter of such importance, he must, for the time, confine himself to announcing to the Congress that he is prepared to request the orders of his Sovereign. What was the opinion of almost all eminent statesmen on the subject? Mr. Disraeli said— By the Declaration of Paris we have given up the cardinal principle of our Maritime Code; the whole maritime strength of the country is concerned if we have acknowledged the principle that the flag of a neutral covers the cargo. This must divert the commerce of the country into neutral ships. It will he a most serious blow to our maritime strength. If the carrying trade leaves our shores the mercantile population will go with it; this will destroy our naval power. Lord Derby said— I look on this act of the Government as cutting off the right hand of the country. Lord John Russell, in 1867, on the Income Tax Bill, said— The rules that free ships make free goods, and that the goods of a belligerent are safe in neutral ships, and the goods of a neutral safe in belligerent ships, have always been regarded as injurious to the interests of maritime coun- 1004 tries, and especially to the maritime power of England. Everyone who has looked at the arguments must see the rules were laid down as a blow to the maritime supremacy of this country, and I hope that no Minister of Great Britain will set his seal to a Treaty containing stipulations of this kind without the most cautious deliberation. They had the great authority of Mr. Stuart Mill against the Declaration of Paris. Mr. Mill, in 1867, had used these words with regard to the question— I venture to call the renunciation of the right of seizing the enemy's property at sea a national blunder. Happily it is not an irretrievable one. The Declaration of 1856 is not a Treaty. It has never been ratified. It is not a permanent engagement between nations. It is but a joint declaration of present intentions; binding on us, I admit, until we formally withdraw from it. How war is to be humanized by shooting at men's bodies instead of taking their property, I confess, surprises me. It is not when the emergency has come, but before it comes, that we ought to form our resolution on this momentous subject."—(3 Mansard [189], 876.) He then came to the greatest authority of all—namely, the Select Committee on Merchant Shipping appointed in 1860. That Committee included, among others, the names of Mr. Milner Gibson, Mr. Cardwell, Mr. Thomas Baring, Mr. Crawford, Mr. Horsfall, Mr. Bentinck, Mr. Liddell, and Mr. Dalglish. In their Report on the question of belligerent rights at sea, the Committee gave the following opinion:— The question of belligerent rights at sea with reference to merchant shipping affects alike the British shipowner in the prosecution of his business and the general interests of Great Britain; and, therefore, the evidence given on this subject has received from your Committee that attention which its gravity demands. Great Britain formerly asserted principles of the law of nations with reference to the rights of belligerents and neutrals, though other nations defended maxims in some points differing from our own. But in the war with Russia in 1854, England having formed an alliance with France, both nations waived their rights to confiscate the enemy's goods on board neutral ships, as also neutral goods, in either case not contraband of war, found on board an enemy's ship. This mutual but provisional waiver of belligerent rights placed the Allies in harmonious action, and practically countenanced the principle that 'free ships make free goods.' Upon the return of peace, the Declaration of Paris of April, 1856, signed by Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, gave a formal sanction to this principle. Privateering was also abolished. America refused to be a party to a Convention whereby she would be precluded from resorting to her Merchant Marine for privateering purposes in case she became a 1005 belligerent. But this is not surprising, for the United States has obtained a recognition of the rights of neutrals for which she contended throughout a former period of hostilities; and Great Britain has surrendered her rights without any equivalent from the United States. Our shipowners will be placed at an immense disadvantage in the event of a war breaking out with any important European Power. In fact, should the Declaration of Paris remain in force during a period of hostilities, the whole of our carrying trade would be inevitably transferred to American and other neutral bottoms. From the evidence given by various witnesses, it appears that at a recent period, upon a mere rumour of war in Europe, in which it was apprehended that Great Britain might be involved, American and other neutral ships received a decided preference in being selected to carry produce from distant parts of the world to ports in Europe, whereby even in a period of peace British shipowners were seriously prejudiced. It seems, therefore, that the state of International Law with reference to belligerent rights affecting merchant shipping cannot remain in its present state; for while England may be involved in any great European war, the United States is almost certain to be neutral, and thus cur great maritime rival would supplant us in the carrying trade. Your Committee consider it their duty to call the attention of your Honourable House to the great importance of this question, which, if not solved during a period of peace, may cause incalculable embarrassment at the outbreak of a war. It is doubtless the Prerogative of the Crown to initiate proper measures to maintain the honour and guard the interests of the country in this respect. Your Committee, however, cannot but express their opinion that a compact like the Declaration of Paris, to which a great Maritime Tower has refused to be a party, may, in the event of hostilities, produce complications highly disastrous to British interests. As matters stand, England is under all the disadvantages of the want of reciprocal pledges on the part of the United States to refrain from privateering or from the attempt to break a blockade which, as heretofore, a sense of self-preservation might compel Great Britain to establish, while Powers so unpledged, urged by every motive of self-interest, would be in a position to inflict the deepest injury upon British interests, under the same unjustifiable pretences as were put forth during the war at the commencement of the present century. Your Committee have thought it their duty thus briefly to point out to your Honourable House the present unsatisfactory position of this question as it immediately affects British merchant shipping. They have done so in the confidence that the whole subject will receive due attention in that quarter where the responsibility rests of taking such measures, in concurrence with Foreign Powers, as may place the present international regulations on a better footing. Your Committee are aware that grave objections have been urged by high authorities against any further step in advance; but they cannot close this brief comment on so important a question without expressing a hope that your Honourable House will agree with them in the opinion that, in the progress of civilization and in the cause 1006 of humanity, the time has arrived when all private property not contraband of war should be exempt from capture at sea. Your Committee are of opinion that Great Britain is deeply interested in the adoption of this course. This country has at all times a much larger amount of property afloat than any other nation, and consequently requires a very large naval force to protect her merchant shipping, perhaps at a time when the whole of our ships of war may he urgently wanted to defend our shores. Considering that that had been the decision of a Liberal Committee, he thought that he was justified in taking that opportunity of bringing forward the question, when there had been a great amount of excitement felt with regard to the expectation of war. Privateers at sea were nothing more than volunteers on laud. If we did not take measures to prevent it, in case of war the whole of our carrying trade would be transferred lo neutral ships. There was one argument used in these times, and that was in reference to Free Trade—namely, that we were dependent upon, other countries for our supplies, and we could be starved by those supplies being cut off. In a really great Continental war we might possibly find provisions declared to be contraband of war. In 1793 such a thing really had happened, when the French Convention had declared provisions contraband, and in 1794 we had done the same thing ourselves. Only the other day, in the war with China, the French had declared rice to be contraband of war. By the Declaration of Paris England was giving up her most powerful weapons, and he thought that they would do well to consider whether they could not got rid of it. It had never received the sanction either of the Crown or of Parliament. It might, perhaps, be brought forward as an argument that, in the event of a war, the Treaty would of itself fall to pieces. He thought that that was not a dignified argument; but that it would be much better now in time of peace to fix upon the course we should adopt. He hoped that they would be led by the opinions of great men like Pitt and Fox, Greville and Canning, Collingwood, Howe, and Nelson, who had only one opinion upon the effect of such restrictions upon the supremacy of England. In conclusion, he begged to move the Resolution of which he had given Notice.

§ EARL GRANVILLE,
who was indistinctly heard, said: I wish to say only a? few words in reply to the Question put by the noble Lord and to his very interesting; speech. I believe that the noble Lord has laid down correctly the principles of maritime warfare as interpreted by eminent jurists in this country. I think, however, that it is a little late, 29 years after the time when the Declaration was agreed to, to criticize, even in the very courteous and effective terms used by the noble Lord, the conduct of Lord Clarendon, who enunciated the policy of the distinguished men with whom he was then associated. With regard to the proceedings in the Congress of Paris, I consider that the course which Lord Clarendon took was perfectly legitimate. The noble Lord says that the Declaration of Paris was never sanctioned by the Sovereign or by Parliament. I am not aware that the Constitution requires any international agreement of this sort, or requires an Act of Parliament for its ratification. As to the assent of the Sovereign, that was given by the complete approval which Lord Palmerston and his Colleagues gave, acting as servants of Her Majesty and on Her behalf, to the course which Lord Clarendon had taken. Lord Clarendon took exactly the same course as Lord Castlereagh did with regard to the famous Declaration as to the Slave Trade, which was acknowledged as binding by all the Powers who were parties to that Declaration. There is no doubt that we are bound by the Declaration, and there is no doubt that all the nations who acceded to the Declaration are equally bound by it. We are not bound by it with regard to those nations—and the only two principal nations are the United States and Spain—who have never acceded to it, and we are not bound by it with regard to any nation which thinks fit to infringe it. No Motion was ever carried in either House of Parliament in opposition to it. It was discussed in both Houses and criticized in very different directions; some thought that it went too far, and some men of great eminence argued that it did not go far enough. Into the merits 1008 of that controversy I am not disposed to enter; but no doubt we and the other nations who have acceded to the Declaration are bound by it up to the present moment.

§ LORD COLCHESTER
was understood to maintain that the Declaration of Paris in regard to maritime capture was not in favour of the interest of humanity, because it was the interest of humanity that when war broke out it should be brought to as speedy an end as possible. It was said that some persons proposed to carry its principles further. He was not surprised if those who found that on the outbreak of war all their trade was transferred to a neutral flag favoured the notion of exempting all property at sea from capture. But to allow an open trade with the enemy during war would be the negation of the very idea of patriotism. As to its being a humanizing of man, Mr. Mill had well remarked that he could not see how war would be humanized by destroying men's bodies instead of their property. Again, the effect of the Declaration of Paris would be to give neutral Powers an interest not in the cessation of a war, but in its prolongation, because they would get the carrying trade of belligerents, which would pass under a neutral flag. The Declaration of Paris was, moreover, in the interest of Military as against Naval Powers, and would tend to strengthen and encourage those great military establishments which were natural instruments of aggression and conquest, as against naval power, which was rather the instrument of defence and the protector of the independence of nations.