§ [SECOND READING.]
§ Order of the day for the Second Reading read.
§ THE FIRST COMMISSIONER OF WORKS (EARL BEAUCHAMP)
My Lords, in asking your Lordships to give a Second Reading to this Bill it will not lie necessary for me to detain you at any great length, because the subject which we shall discuss this evening has already been discussed on no fewer than three occasions in an earlier part of the session. At the same time it is right that I should point out to your Lordships that the Bill which is before you to-day deals with other subjects than those comprised in the Declaration of London. Of the seven parts of this Bill, six, I think I may fairly say, are non-controversial, and probably the debate this evening will range round Part III, the part which, as I say, your Lordships have already discussed on a previous occasion. The remaining parts of the Bill deal with the consolidation and the amendment of the Naval Prize Act, 1864. Section 4 of the Judicature Act, 1891, and the Prize Courts Act of 1894. Part III provides for an appeal to an International Prize Court at the Hague. For a long time there has been felt a need for such a consolidation and amendment of the law, and it is of itself an important matter, non-controversial though it is. The alteration with regard to the Appeal Court is comparatively simple. At the present moment the appeal is to the Judicial Committee of the Privy Council; under this Bill the Judicial Committee is in matters of prize converted into the 810 Supreme Prize Court, for an obvious reason. Technically speaking, the Judicial Committee of the Privy Council is His Majesty sitting in Council, and it is quite rightly thought very desirable that no appeal should lie from His Majesty but that the appeal should rather be made to lie from a Supreme Court, which is a matter, perhaps, of technicality, but still of some importance.
The important part round which I suppose most of the discussion will range this evening is Part III, which deals with the International Prize Court. This involves not only the Prize Court Convention but also the question of the Declaration of London. Let me briefly go over the history of the subject. During the Russo-Japanese war the Foreign Office was inundated with a number of complaints from British traders and British merchants, who complained of various acts which were done in the course of the war, but, still more, they complained of the want of certainty with regard to the state of the law. They said they wished to know what really was the law, what was contraband, what they might carry and what they might not, and as a consequence of this uncertainty I understand that the rates of insurance rose very high indeed. There was very little that the Foreign Office could do. There was no arbitration possible; and if the belligerents in that case or in any other case refuse arbitration, there is really very little that any Foreign Office can do in such circumstances. If the belligerent's Court. is the final Court and there is no possibility of appeal to arbitration or to any other Court, it is quite obvious that beyond the somewhat meagre resources of diplomacy there is very little that the Foreign Office can do. That was the position to which the present Secretary of State succeeded when he came into office, and he came to the conclusion that it was eminently desirable that, if possible, sonic means should be devised by which the decision of a belligerent's Court should be subject to an appeal in cases relating to neutrals; and when the Second Peace Conference at The Hague took place the British delegates and also the delegates from other nations went there with instructions to see if something could not be done in the matter.
It was quite obvious that there were great difficulties to be met with. It was necessary, in order that a satisfactory 811 solution should be found, that the Court should be a permanent Court, that it should be a representative Court, and also, if possible; that it should be a Court which met automatically on the outbreak of war and for which no special procedure was necessary in the way of setting it. up specially for that occasion. We think that by the suggestions made in the Bill those ends are practically attained. It is a representative Court, and Great Britain will have a representative in every case when that Court sits, and your Lordships will remember, I hope, during this discussion that it deals practically solely and only with the case of neutral ships and goods. It will not affect the operations of Great Britain as a belligerent on enemy ships but only the interests of neutral ships. Your Lordships will therefore see that our power at war remains undiminished, and I would venture to recall to your Lordships the statement made by my noble friend the Leader of the House on the occasion of the previous discussion which took place here, when he stated that in the opinion of the Board of Admiralty the results of this Convention upon us as belligerents would be practically small and negligible.
We find in the newspapers a considerable amount of opposition to the Naval Prize Bill and to the Declaration of London so far as it affects it. The noble and gallant Lord, Lord Charles Beresford, wrote a letter the other day to The Times, and I understand from the papers this morning that a remonstrance against this Bill has been sent to every member of your Lordships' House. I have, unfortunately, not seen a copy of it myself, but I believe it is very much on the same lines as the noble and gallant Lord's letter. This is what Lord Charles Beresford said in the course of his letter to The Times one day last week—It is proposed to hand over those maritime rights which we have preserved for centuries to the decision of a foreign Court.The suggestion which is made there, and the conclusion which most of us would derive from that sentence is that, under this Bill, we are transferring from British Courts to an International Court the control of the British Mercantile Marine, which is some eleven out of a total of 22 million tons throughout the whole of the world. What really and truly are the facts? When ships or rights are brought before British Courts they will in no case be British rights. They will not affect the 812 rights of any British owner. Your Lordships will see why in a moment. In a British Prize Court there will be the defendant and the claimant. The defendant, naturally, will be the British Government. Your Lordships will see in a moment that the only people who will bring cases against the British Government will be foreign owners. On the other hand, when there are cases which affect this country before an International Prize Court, it will be by way of appeal from a foreign prize court, not from a British; those interests can never be brought before a British Prize Court, and the two things are therefore mutually exclusive. British interests will be brought only before an International Prize Court, because it is impossible that they should be brought before a British Prize Court.
Now, my Lords, let me say something about the rules which, under the Convention, the International Prize Court will apply. They first of all will apply Treaties so far as they are applicable; secondly, they will apply the rules of international law; and, thirdly, they will apply the principles of justice and equity. There are no Treaties on such subjects as contraband or blockade, but on the general question of prize law the Lord Chief Justice told us on a previous occasion that British prize law was practically the prize law of the world. It is only with diffidence that one ventures to differ from the noble and learned Lord on any legal question, but it is sufficient to point out that although British prize law figures largely in the text-books and although it has a very real importance in deciding what international prize law may be, other countries do not accept the same view of British prize law as we do ourselves. It is unfortunate it should be so, but there it is; and therefore it is impossible for us to expect, without a Convention or some negotiation, that we should get our rules and principles universally accepted throughout the world. So it came about that the Naval Conference was held in the years 1908 and 1909; this matter was thoroughly investigated and studied, and the plenipotentiaries at that Conference produced and signed the Declaration of London. Before the Conference assembled the noble and learned Earl on the Cross Benches, Lord Desart, who had been connected with this matter for some time not only as King's Proctor but as Treasury Solicitor, went thoroughly into 813 the matter together with the Secretary of Naval Intelligence, the Secretary of Imperial Defence, the Assistant-Secretary to the Admiralty, and two representatives of the Foreign Office who had had experience during the Russo-Japanese war and also of the negotiations during the Hague Conference. The duty of this Committee was to study the history and the practice of British prize law and to advise His Majesty's Government as to insisting, or not insisting, upon the views previously held by this country and as to the modifications which might be introduced to meet the various recommendations made by other countries. So the Declaration of London came into being, and was discussed in the House in the course of the present year. The discussion on that occasion, I think, turned principally upon two points. The first one was the omission from the Declaration of any prohibition of the right to convert merchantmen into warships upon the high seas. Nobody contradicts the right of any Power to convert such ships into warships in its own ports; the question was that of conversion on the high seas.
§ EARL BEAUCHAMP
Yes; but the question I am upon is merely the right of conversion on the high seas and in ports.
§ EARL BEAUCHAMP
The noble and learned Earl agrees. That is the point I was trying to make. So far as conversion on the high seas is concerned, we found that foreign opinion did not agree with ours, and on that question it was impossible to come to a conclusion, and the matter, therefore, was left open for the future. In any case your Lordships would agree that if we were belligerents it would be the duty of the British Navy to hunt down those ships wherever they had been converted, whether on the high seas or in the ports of the enemy's country. As neutrals, the matter does not affect us so vitally. Foreign Powers have done it in the past and they probably will do it again. The point I wish to put is that, so far as it is done by foreign Powers, supposing we complain against the action of any such Power, we are forced to complain against them in their own Courts, and it is most unlikely that the Court of any 814 foreign Power would declare that such action was illegal. Therefore, at present, our only hope would be that such illegality would be declared by an International Prize Court, as it is very unlikely that it would be done by the Court of the country concerned.
The other point round which discussion ranged on the last occasion is the question of conditional contraband. The noble Earl opposite, who is to move the rejection of this Bill, devoted a good part of his speech on that occasion to this subject. The argument has been used by the Secretary of State that, without the Declaration of London, Great Britain runs the risk that her enemy will claim to prevent the supplies of foodstuffs reaching this country by declaring them to be absolute contraband and therefore liable to capture, starvation being, in the opinion of some foreign countries, probably the best way of reducing this country to submission. Such action was taken in the case of France in her war with China, and Prince Bismarck declared at that time that it was a legitimate act of war. The noble Earl opposite, Lord Selborne, met this argument in the debate which was held in this House, to which I have already referred, by asserting that the diplomatic pressure of the United States of America would prevent any such action by an enemy Power, because he said, and quite rightly, that the United States are very largely interested in the supply of foodstuffs to this country and that no Power which had already entered into war with Great Britain would run the risk of a further war with, or of alienating the sympathies of, the United States, and that the existence of an International Prize Court would prevent, or at any rate, would reduce, the effect of such diplomatic pressure. I hope I have put his argument as he would have put it himself.
We have an instance which will go some way to showing how far we may rely on the action of such a neutral Power. Very much the same thing happened in the course of the Russo-Japanese War when a British ship which was carrying a cargo of paraffin for lighting purposes, the oil itself belonging to a United States company, was captured by a Russian cruiser. At the outbreak of the war the Russian Government had issued a list of contraband, containing a word which covered both naphtha and crude 815 petroleum; but on inquiry the British Ambassador was officially told by the Russian Government that that did not cover paraffin to be used for lighting purposes only. Notwithstanding that, the Russian Prize Court condemned the cargo as contraband and upheld the action of the Russian cruiser. According to the argument of the noble Earl, the United States of America should leave been able to bring so much diplomatic pressure to bear on the Russian Government that they would have compensated the merchants who had lost their cargo and prevented such action in the future. As a matter of fact, the United States Government contented themselves with protesting without any result at all. Therefore, although we have in this concrete case an example of what the noble Earl depends upon for preventing such an action in the future, we find that the United States did not succeed in preventing that treatment of contraband which the Declaration of London will at any rate succeed in effecting. There is this further point, that America is more interested in the export of petroleum than in that of wheat, and before very long it is not unlikely that the supply of wheat from the United States will be much less so far as the supply they send to us is concerned, and that it will eventually disappear altogether. I think that that instance is a not unfair commentary to make on the argument of the noble Earl opposite.
The other discussion ranged round three special points—the interpretation of the words "enemy," "base," and "fortified place." With regard to the interpretation of "enemy Government." I presume that the point is so well known to your Lordships that I need not go into it in detail. I would remind noble Lords opposite of the pledge given by my right hon. friend the Secretary of State for Foreign Affairs at the Imperial Conference, that this country would not proceed to the ratification of the Treaty unless the view of his Majesty's Government was upheld by the other Powers. If the noble Earl wishes the reference it is on page 107 of the Report of the Imperial Conference. Sir Edward Grey used these words—It is one of the points which we shall make a condition of our ratification that that view should be accepted by the other Powers.
§ EARL BEAUCHAMP
I am coming to that in a moment; this is with regard to "enemy Government." I ought to say, in passing, that His Majesty's Government do not agree with the interpretations which have been put upon these three phrases by noble Lords who are opposed to the Declaration of London. We think that their interpretations are strained interpretations, but we are anxious to do what we can to meet noble Lords opposite; and I think, so far as "enemy Government" is concerned, the noble Earl will be satisfied with that explanation and guarantee of my right hon. friend.
Then we come to the point as to "base" and "fortified place." The view of His Majesty's Government of the meaning of the phrase "base of supply," as used in Article 34, is that a place serves as a base of supply for the armed forces when the business of supplying those forces with what they require is organised and located there, and the stores required are collected and supplied to the forces from that place. A place cannot be regarded as serving as a base of supply for the armed forces merely because it is connected by rail or other means of communication with those forces and constitutes a source from which supplies might be obtained in case of need. Further, the interpretation which His Majesty's Government put upon the phrase "fortified place" in the same Article, dealing as it does with the presumptions arising from the place of destination and consignment of goods, is that a "fortified place" means a place surrounded by military works capable of withstanding a siege and in which the military and civilian population are so intermingled that goods intended for one could not be distinguished from the goods intended for the other.
§ EARL BEAUCHAMP
No; I am merely trying to state what the view of the Government is on the subject; and if the noble Earl will allow me, I hope to say something which will satisfy him later on. A port cannot be regarded as a fortified place in the view of the, Government merely because it has forts to protect it on the seaward side. The view of the noble Earl opposite as to the meaning of "base of 817 supply" is not shared by General Botha, although in the course of the earlier discussion the noble Earl referred specially to South Africa as being a place which could not be reached except through some such base. I would remind your Lordships that not only did General Botha himself repudiate that interpretation, but also the Imperial Conference which met this year at the Foreign Office expressed its approval of the Declaration of London. I hope that of the various points I have mentioned the "enemy Government" point, at any rate, is met by what was said by the Secretary of State for Foreign Affairs at the Imperial Conference.
There remains, therefore, as matters of controversy and discussion the two points as to the meaning of "base" and "fortified place." in regard to that I am prepared on behalf of His Majesty's Government to give an undertaking, which I hope will be so far satisfactory to noble Lords opposite that they will be willing to give this Bill a Second Reading this evening. Part III of the Naval Prize Bill does not become operative until it is brought into force by an Order in Council. It is not the intention of His Majesty's Government to issue any such Order in Council until they are satisfied that the other Powers who have signed the Declaration attribute the same meaning to the words "base" and "fortified place" in Article 34 of the Declaration of London as His Majesty's Government. His Majesty's Government are willing to undertake that no Order in Council will be. issued under this Act until it has been shown that there is such an agreed definition between His Majesty's Government and the other Powers concerned. When this is so the definition will be laid before Parliament, and no Order in Council will be issued under this Act until Parliament has had an opportunity of discussing the definition. His Majesty's Government are already in communication with foreign Powers on this subject, and they have no reason to believe that the answer which they will receive will be anything but satisfactory to themselves and, I hope I may add, to noble Lords opposite.
This Bill, let me say in conclusion, is required even if the International Prize Court. Convention or the Declaration of London were not ratified. Part III is dependent on an Order in Council. With regard to that I have already, on behalf 818 of His Majesty's Government, given a pledge which I hope and believe will prove satisfactory to the noble Earl opposite. His Majesty's Government in this matter have acted with a full sense of their responsibility, having done their best to obtain the opinion of their expert advisers; and I venture to say if, under these circumstances, the Amendment of the noble Earl opposite is to be carried to-night, all those who are anxious that foreign affairs should be lifted out of the arena of mere Party politics and that there should be continuity in these matters would deeply regret such an action on the part of your Lordships.
§ Moved, That the Bill be now read 2a.—(Earl Beauchamp.)
§ THE EARL OF SELBORNE
, who had given notice, on the Motion for the Second. Reading, to move that the Bill be read 2a this day three months, said: My Lords, it is true, as the noble Earl stated at the commencement of his speech, that the main part of this Bill consists of the consolidation of the Prize Court law. In respect of that part of the Bill there is no controversy between the two sides of the House. It is only when we conic to the International Court of Appeal that is tacked on to this consolidating Bill that our difference with the Government commences. Speaking for myself, and, I believe, for those who act with me, I have no hostility to the establishment of an International Prize Court as such. If an International Prize Court can be formed which we think is competent to do the work entrusted to it. we should welcome its establishment, but it does not follow from that that we are prepared to accept any Court that is offered to us for this purpose.
I would ask your Lordships to observe that the noble Earl in moving the Second Reading of this Bill said nothing at all about the composition of the Prize Court which was to be formed under the Schedule. The very first point we have to consider is what is the Court to which it is proposed to entrust these great functions. The Court is to consist of no less than fifteen Judges. If we can be assured that all these fifteen Judges are competent jurists, even then I would say that they would be a bad Court, because the Court would be much too large. Who ever heard of a Court of Appeal of fifteen judges? I know of no precedent or parallel for such a 819 Court in the history of jurisprudence. Therefore I demur in liminc to this Court on account of its size. When I come to analyse the composition of this Court my demur turns to astonishment that the Government could ever have consented to such a Court. Of the fifteen Judges, eight are always to be representative of the eight Great Powers. Then there are Powers, such as Spain, Argentina, and Holland, who are not usually classed as great naval Powers but who are Powers of great importance in the world, whose co-operation in such an international task as this would always be welcome. Beyond that class of Power I will read a list of some of the Powers that are at one time or another to provide a Judge or a deputy Judge for this Court:—Colombia, Uruguay, Venezuela, San Domingo, Paraguay, Bolivia, Persia, Panama, Luxemburg, Costa Rica, Switzerland. Switzerland and Luxemburg are both inland countries. Other countries are Hayti, Servia, Siam, Honduras, Nicaragua, Montenegro, Cuba, Guatemala, Salvador, and Equador. This is to be the International Prize Court.
I will not say anything disrespectful of those Powers, but it is not inconsistent with respect to say that the Powers whose names I have read out should not necessarily have a place in a great International Prize Court. The British Empire owns half the mercantile marine of the world, and yet it will have no greater representation on this Court than any one of the Powers I have mentioned. If you do form a Court of this kind, and I demur altogether to this system of forming it, I can see no justification for only giving the British Empire equal representation with one of the small Central and South American Republics. If in any important matter the representatives of the Great Powers were divided in opinion, is it not certain that every diplomatic influence that could be turned on the smaller Powers to secure their vote would be turned on and that this Court, instead of being a Court commanding universal assent as a Court of Justice, would become a mere centre of diplomatic intrigue. This is not really a Court at all; it is a sort of hybrid between a Parliament of the world and a Court of Justice, and it fails even more signally as a Court than it fails as a Parliament. It is to such a body as this that you are asked to allow an appeal from our own Privy Council. While, therefore, there 820 is to be an appeal from the Privy Council to this extraordinary body, which is neither a Court nor a Parliament, your Lordships will notice that there can be no corresponding appeal from the Supreme Court of the United States. The representatives of the United States discovered that by their Constitution it was not possible to carry an appeal from their Supreme Court to any new international tribunal, and therefore a protocol has been signed allowing cases in which American citizens are concerned to be initiated from the commencement in the International Court. That opens the door to this possible serious inconvenience, that cases might be carried both to the Supreme Court of the United States and also to the International Court, and you might get two perfectly conflicting sets of judgments.
Now I ask your Lordships to compare this tribunal with the Hague tribunal. The Hague tribunal consists of only five Judges, and all of them have have been jurists of eminence. It is not too soon, I think, for us to admit, and admit with great satisfaction, that the Hague tribunal has been a great success. But why? Because it is a Court of Justice, because its members are limited in number, because they are all jurists of eminence, and therefore its decisions have commanded universal respect. There is no comparison between The Hague tribunal of five Judges, all of them jurists of eminence, and fifteen representatives of a collection of Powers, great, medium, and little, collected in the heterogeneous manner described and without any kind of assurance as to the qualifications of some of their members for the task entrusted to them. Sir Edward Grey in another place has not attempted to defend the composition of the Court. He said in effect:—"You will get no other Court but this." It is incredible that the Powers of the civilised world who formed the Hague tribunal should be utterly unable to form a better International Prize Court of Appeal than this. I say with a full sense of responsibility that if this is the only International Prize Court that is possible then I would rather have no International Prize Court at all, and that without any reference to the code of international law which that Court might have to administer. I object to this Court on the threshold as not a fit and proper tribunal to try in the last 821 instance cases affecting the mercantile marine of the British Empire.
The law which this Court would administer is only an additional inducement why your Lordships should hesitate to confide such great interests to so inadequate a tribunal. In the House of Commons Mr. McKinnon Wood said that in naval matters international law was in a state of complete uncertainty and chaos. I think that is an exaggeration. I do not think there is any chaos or uncertainty about naval international law as decided either by our Courts or by the American Courts. The difficulty does not arise from chaos or the absence of any argued set of judgments, but from the fact that many foreign Powers will not accept the doctrines laid down by the American or British Courts; and therefore, as this proposed Court can only administer international law, they would have, as I think one of the members of the Convention in the first place cheerily remarked, to make the law very much in the rough. But His Majesty's Government felt that that was quite impossible and therefore they asked the Powers to send representatives to London to try and make a Code to which all nations should agree, and which would obviate the necessity of this Court making laws very much in the rough. It is, accordingly, the accepted principles of international law as defined in the Declaration of London which this Court would have to administer. But in addition, where the Declaration is silent, the Court would have to act according to its own ideas of justice, equity, or good conscience. Is it quite certain in the first place what document this Court would have to administer? There are the Articles of the Declaration of London, and there is also the Report of M. Renault upon those Articles, and nobody has yet told us with authority whether the Court would only have to look to the Articles or whether it would look to the Report as well as the Articles. I express no opinion on that abstruse question; I only notice that authorities and experts differ. Some say that the Report has equal authority with the Articles, and others deny that the Court could take the Report into consideration at all. There is a substantial difference between the two. In sonic cases our position would be improved if the Report was taken into consideration as well as the Articles, but certainly in 822 one case at least the position would, I think I shall be able to show, be made worse.
And that brings me at once to the point which the noble Earl put his finger upon as one which disturbs those who take the view that I do of this matter—the question of conditional contraband. Now, my Lords, if we want to estimate the true position of this matter let us try and put ourselves into the position of a foreign Power with whom we might unfortunately find ourselves at war. Rightly or wrongly it is surely manifest that that Power would consider the question of food supply as the British heel of Achilles. It would feel that it could do more to injure us by any serious interference with our food supply, even if that interference were only temporary, than it could by any other possible means. It would know that we alone of the Great Powers cannot supply ourselves with food. It would know that the store in hand is never large, and that really any interruption even for a few days of the stream of ships bringing food to this country might be productive to us of the most serious consequences. It would mean in the first place a rise in freights and in prices, and a shortage of food which might mean panic and riot. I think foreigners are largely inclined to over estimate the effect which such a pinch would have upon our population. I believe our people, if the war was one in which their heart was engaged, would not hamper their Government by riot or panic at a time of such emergency. That, however, does not alter the fact that the pinch on our population would be terrible. Therefore it is no wonder that a foreign Power should make its plaits almost exclusively at the beginning of a naval war with a view to creating a shortage in our food supply.
At the present moment food is only contraband of war if destined for the armed forces of the enemy or for a port of naval or military equipment. Our Courts have decided what is meant by that. For instance Brest is, and Bordeaux is not, such a port, according to the decisions of our Courts; or, if you translate that into terms of English ports, I take it it would mean that Portsmouth is, and Southampton is not, such a port. By Article 34 of the Declaration of London a "fortified place belonging to the enemy or other place serving as a base for the armed forces of the 823 enemy" constitutes a destination which would make food contraband. But the Report says—It may be a place used as a base of supply for the armed forces of the enemy.Now, I am glad to see that there is no difference between the Government and the Opposition as to the interpretation which we should wish to see placed upon the words "a base of supply," but the question is what interpretation would be placed upon those words by the International Prize Court of Appeal. It is quite unnecessary after what has been said by Lord Beauchamp to repeat our arguments adduced to show how, with the instruction to do all he possibly could to interfere with the supply of food to the United Kingdom, the Admiral of an enemy's fleet would argue inevitably that every port in the United Kingdom was a base of supply. I will not develop that argument, but I will give, with the permission of your Lordships, an illustration showing that that view is not only likely to be held by the directors of naval operations in some Continental countries, but is actually expressed as their view in military textbooks at the present moment. On the question of what is a "base" now-a-days, General von Caemmerer says in his book, "The Development of Strategical Science"—Railways have above all completely changed the term 'base' … One does not base oneself any more on a distinct district which is specially prepared for that object, but upon the whole country, which, owing to the railways, has become one single magazine with separate storerooms.Then, again, General Baron von der Goltz says in his book, "The Conduct of War"—In Western Europe the dense network of railways allows of reinforcements and supplies being brought up in a few days from the most remote parts of a country. It even obviates the necessity of restricting the base to one district, the whole area of the State becoming the base.That is the view held in military text-books in Germany, and therefore I think it proves that we were justified in directing the attention of His Majesty's Government and of the country to the immense importance of the interpretation of the words "base of supply."
I was glad to hear what the noble Earl said as to the efforts of His Majesty's Government to elucidate this point, but I do not quite see how, without a fresh 824 supplementary Convention dealing with this point, any document merely expressing the view of an individual Power could bind an International Prize Court of Appeal which had to interpret the Articles of this Convention. Therefore, much as I welcome the belated step which the Secretary of State for Foreign Affairs has taken, I do not think it is an adequate substitute for the clearer and more definite provisions which ought to have found their place in the Convention. The objection of the Opposition to the Bill does not arise solely from the doubts and fears which we entertain as to the Declaration of London, but because we believe that the Court of Appeal to be set up by the Bill is not a satisfactory Court for the adjustment of international questions. It is not a tribunal to which we should entrust the final definition of such terms as "enemy Government," "a base of supply," and "a fortified place," having regard to the great importance to the mercantile marine of this country of what the interpretation of those terms might be. It is an extraordinary fact that Article 34 is textually the Article proposed by one of the great Continental Powers. That in itself is not an argument against it; but I and those whom I have consulted complain that no discussion appears to have taken place as to the interpretation of the terms mentioned, and it does not seem to have occurred to the British representatives at the Conference how important was the meaning of the term "base of supply." I may be in error; if so no doubt I shall be corrected, but we cannot find any trace of a discussion upon this all-important point.
THE EARL OF DESART
I hope the noble Earl will forgive me for interrupting him. I may say that a great deal of the important discussion at the Conference took place en commission and was not reported and did not appear in the Minutes. Therefore it would not really be accurate to say that there was no discussion with regard to this point. I cannot honestly answer at the moment from recollection what amount of discussion there was with regard to this point, but I can say that very often there were extremely important discussions that took place en commission of which no notes were taken, and therefore did not appear in the Minutes of the full Conference at which notes were taken. I will not say positively that that is what happened in this particular case, but I know that was so on many occasions.
§ THE EARL OF SELBORNE
I am much obliged to the noble Earl for what he has told us. I now pass from what the Declaration of London does say to what it does not say. Your Lordships must remember how very important is the silence of the Declaration of London, because where it is silent the International Court has to give its decisions very much in the rough according to its ideas of equity and justice. In regard to the conversion of merchant ships into cruisers on the high seas, I question whether it is true that no decision of the International Court of Appeal could affect us as belligerents. Our Navy would treat all merchantmen converted into cruisers on the high seas exactly as they would treat such vessels which had been converted in port or as the regular cruisers of the enemy; but surely if the International Prize Court gave a decision contrary to the British view, and held that conversion was legitimate, the number of merchantmen converted on the high seas into cruisers which British cruisers would have to meet would be much greater than if such a decision had never been given. As neutrals we should be directly affected by such a decision of the Court, and we might have forced upon us, by a Court whose competence I venture to question, the very doctrine to which His Majesty's Government, through their representatives at the Conference, refused to agree. Under Clause 28 British Courts throughout the Empire would be bound to enforce the decisions of the International Court in respect of a British neutral vessel captured by a merchantman converted on the high seas into a belligerent cruiser. Having enforced a decision of the International Court in such a case how could British Courts afterwards repudiate the very principles of law which we had ourselves enforced under this Bill? Sir Robert Finlay made that point in the House of Commons twice, and no answer was given to it, and I do not think I am exaggerating when I say that we run the risk of having this very doctrine which His Majesty's Government have been the first and most strenuous to repudiate forced upon us by the decisions of this International Prize Court of Appeal. The fact is that all the arguments which were so very eloquently put forward by the Secretary of State against setting up a Court at all without a Code, apply just as much now to the possibility of this Court settling the question of conversion without a code and according to its own ideas of justice and equity.
826 By Article 49 a neutral ship, taken as a prize by a belligerent, could be destroyed by the captor if its preservation might compromise the success of the operations in which the belligerent was engaged. Article 40 declares that a neutral ship can be seized if half or more than half of the cargo is contraband. In the case of ships carrying wheat the cargo is almost wholly wheat, and if wheat is contraband the ship is liable to seizure. I ask the House to consider the cumulative effect of Articles 34, 40, and 49 and of the conversion of merchantmen on the high seas. Given that the great object of the enemy is to create a panic in the United Kingdom by cutting short our food supply, it is quite certain that the orders given to their naval officers would be to sacrifice every consideration to the success of this attempt. Therefore, is it not clear they might decide to treat any port of the United Kingdom as a base of supply and to take all neutral grain ships without exception and sink them? And this might be done, not only by regular cruisers of the enemy, by merchantmen converted into cruisers in the enemy's ports, but also by as many merchantmen as they had been able previously to arrange to be converted on the high seas. It has been said that all this might happen now. I quite agree, but the point I wish to make now is that the great question involved for us in each of these hypotheses, the principle involved, might be settled contrary to what we believe to be the true interpretation of international law in this Prize Court. by the casting vote, in the first year, of Colombia or Bolivia, in the second year of Uruguay or Costa Rica, and in the third year of Venezuela or Hayti. That is not a joke, but a perfectly true statement of what is possible under the Bill.
It is true that now we run the risk of having foodstuffs declared absolute contraband of war by any nation with which we are unfortunately at war. But our position is that as belligerents we prefer that risk to the risk of the decision of such a Court as this in effect legalising the doctrine in the peculiar circumstances of our case. As neutrals we prefer to trust to diplomatic protest during the war to the decision of this Court after the war. We on this side of the House have had some experience in that matter both as belligerents and as neutrals. In the South African War, as belligerents, we had protests from neutral Powers. In the Russo-Japanese War we 827 were neutrals and we entered protests to the belligerent. Powers. We know both the weakness of protest as looked at from the point of view of the neutral, and the strength of protest as looked at from the point of view of the belligerent, and I have no hesitation in saving that the Government has underrated all through this controversy the effect of the protest by a strong neutral on a belligerent. That is borne out by the Report of a Committee on the National Guarantee of War Risks for Shipping, presented in 1908. That Report, which was signed, among others, by that distinguished naval officer, Admiral Ottley, who was also a member of the Conference from which the Declaration of London emanated, says—The danger of any material interruption to our supply of food and raw material is mitigated by the fact that such supplies would be shipped, in part at any rate, in neutral bottoms if British ships found the traffic too dangerous, end any belligerent with whom this country might be engaged in war might well hesitate to incur the hostility of a great Power, such as the United States of America, whose vessels were so engaged by treating such articles as contraband of war.The point is that if the doctrine of unconditional contraband is now pushed to excess, a neutral Power could put great pressure on a belligerent Government which took that view. If the Declaration of London is ratified and an International Court of Appeal is set up, the belligerent would no longer pay any attention to the protests of a neutral, and would say. "We refer you to the International Prize Court." So that instead of the matter being settled during the war and the belligerent having to weigh the chances of incurring the hostility of the neutral, he would know that the decision, even if given against him, would be given after the war was over and after his particular action, if it has been successful, had had the full effect which he hoped from it. It is quite true that the British neutral shipowner now has to appeal to the Court of the belligerent—I am quoting the words of Mr. McKinnon Wood—and it is because that is so that the Opposition would be glad to see an International Court of Appeal which would carry with it the same confidence as the Hague Tribunal now does. It is because we cannot recognise the Court established by this Bill as anything more than a parody of such a Court that we ask the House not to read the Bill a second time. We have to consider our interests both as neutrals and as belligerents, and the real question is, Do the 828 Declaration of London, the Prize Court Convention, and this Bill taken together constitute an improvement or not on the present position?
Sir Edward Grey said the other night that there had been a great deal of exaggeration in this matter. I quite agree, but I also maintain there has been a good deal of evasion and misplaced optimism on the part of the advocates of the Convention and the defenders of the Bill. Certain it is that public opinion of a very formidable kind exists in this country hostile to these agreements. Practically every Chamber of Commerce has pronounced against them, and practically the whole shipping world. Naval opinion, I admit, is divided. There are very strong and numerous opinions on the one side, and there are opinions on the other; but what is most significant and to me quite inexplicable is that from the beginning to the end of this lengthened controversy we have never once had an authoritative statement of the considered opinion of the Board of Admiralty.
Your Lordships have seen, no doubt, a letter in to-day's Times from Admiral Sir Reginald Custance, a distinguished naval officer, of whose opinions I speak with great respect; but I would ask your Lordships to consider two of his expressions of opinion and to note a significant. omission from his letter. He says that the absence of any provision prohibiting the conversion of merchantmen at sea into ships of war alters nothing; that is true, but surely, if the International Prize Court of Appeal gave a decision in favour of the unlimited right of conversion, it would alter a great deal. Then he says that the safety of our food supply in war would depend on the strength and the use made of the Navy rather than on the presumed immunity of neutral shipping from capture. That is true, a thousand times true; if the Navy is not strong enough to protect our commerce, it does not matter for a moment how many neutral ships endeavour to bring food to this country, but it does not follow that we ought to regard with indifference the supply of food brought in neutral bottoms or without jealousy the provisions of this Declaration, which we believe will make the contribution of food in foreign bottoms more precarious than it is now. That letter, dealing with certain aspects of the Declaration of London and leaving no doubt upon our minds that Admiral Custance is in favour of it, says, however, not a 829 single word about this Bill or the International Prize Court of Appeal. If Admiral Custance had felt on equally strong ground about this Court on whose decisions so much will depend, it is not an extravagant supposition to think that he would have made a case for it in his letter, but he says not a word about it. I am prepared to differ from Admiral Custance about the Declaration of London. I know my opinion is of no value compared to his, but I can put against his opinion the opinion of other great naval experts. In conclusion, what I do say—and in this proposition I ask your Lordships to concur—is that, whether the Declaration of London be good or bad, this particular Court of Appeal is not one to which great naval and mercantile interests of this country should be committed; and it is because that is my profound conviction that I ask your Lordships to read this Bill a second time this day three months.
To leave out ("now") and add at the end of the Motion ("this day three months").—(The Earl of Selborne.)
§ THE LORD CHANCELLOR (EARL LOREBURN)
My Lords, I did not intend to endeavour to answer the noble Earl or to take part at this stage of the debate, but I am constrained to do so because my noble friend Earl Beauchamp made a very plain and important suggestion which I should have thought that any statesman responsible not for a Department but for the Executive Government of Great Britain which has to deal with foreign nations and with diplomatic policy might have expected would have been taken some heed of. The noble Earl has apparently taken no heed of it. Let me point out what it is that we are really now doing. Here is a Bill most of which is not controversial, but which contains a third part which deals with the subject matter of an International Prize Court and incidentally with the Declaration of London. Let us see what the position is. It was the British Government, our Government—for, after all, when we are dealing with our national concerns it is our Government, although it may not be agreeable to some members of the House—who made the proposal and asked foreign nations to come and agree with us, in view of the uncertainty of naval prize law, in order to see if we could come to terms. We have come to terms, though I quite agree that what they are it is wholly for Parliament to consider. We have not 830 yet ratified them; the other nations are waiting to ratify them; and what we want here is a power to carry into effect one part of what was agreed to by means of the proposed legislation.
How shall we stand before the other nations of the world if we are denied by this House the means of giving effect to what we have agreed to, not lightly but after great pains and inquiry and with the best expert advice we could command and the best naval advice, and after having submitted it to the Imperial Conference and having obtained the approval of the Imperial Conference? I do not say that that is a conclusive consideration. I do not deny that the matter should be sifted, but it is an important consideration. There was not a trace in the speech of the noble Earl that he was speaking in regard to the action of this House towards the Executive Government of the British nation which has come to an agreement with the other nations of the world upon this matter; there was not a trace that he had in his mind anything else than to throw out the Bill. There are others sitting on that Bench who, I know, will take a very different view, though I do not say that they will not agree with the course taken by the noble Earl. No one could have done more than the noble Earl did to set forth his views and objections, but after his clear and careful statement are your Lordships quite convinced that you understand this question sufficiently to be prepared to set yourselves against the Executive Government and say that we are to go to the other nations and tell them, "It is true we proposed a Conference, and that the whole Empire and the Imperial Conference have approved the suggestion, but the House of Lords so fully and thoroughly comprehends all the points that it is prepared to throw the Bill in the face of the Government and to ask them to make the best excuses they can to the assembled Powers that they have brought together, and to explain that they can do nothing owing to the action of the House of Lords"?
I submit this to your Lordships and no more: ought you not to be certain that you thoroughly understand the precise point before you are prepared to throw out this Bill? You ought at least to wait until we get to Committee. This is only a Bill to set up a tribunal, and it is only incidentally that the Declaration of London comes in. This is not a matter 831 of legislation merely as such. Legislation is one thing affecting the interests of this country, but this is necessary as an act of executive power for the ratification of a particular course. You will find differences of opinion in naval circles and at the Admiralty. They are divided into two camps with regard to this Bill. You have also the Chambers of Commerce. I do not wish to speak of them with any disrespect, but have they really considered it? You have had a raging, tearing propaganda about it in the Daily Mail— a paper for which I have no aversion at all—and other papers. Some of the gentlemen who have been conducting the campaign against this Bill are excellent but irresponsible men. Now, your Lordships are not irresponsible, and you have to consider whether you will accept this newspaper agitation, which people are asked to regard as vox populi, and, indeed, almost vox Dei.
The noble Earl said that this controversy began with a good many objections, which I think he admitted himself to be quite unreasonable. Every appeal to spurious facts has been made, but the objections now concentrated are few in number. The noble Earl says in substance that the decisions of the British Prize Court ought not to be appealable to a Court comprising fifteen persons and representative of practically all the nations of the world. I think that he even mentioned our old friend Costa Rica. He complained of the number of these Judges, and said that it was quite unprecedented in the history of jurisprudence. I am very sorry but he must really allow me to differ from him. I have seen, I think, fifteen Judges, I am not certain it was not sixteen, hearing the celebrated "Franconia" case to decide what was the limit of extra-territorial waters and the powers within territorial waters, and Lord Halsbury took a conspicuous part in the arguments. It is not, therefore, unprecedented in the history of jurisprudence. I remember once going to Paris and being taken into a Court where there was quite a crowd of Judges—I am sure more than fifteen. That is not by any means uncommon abroad; but, though I think there may be wisdom in our prevalent habit in England, although it used not to be the case in Scotland, of having four or five Judges—some of the greatest decisions in the history of the country have been come to by quite small tribunals—that does not mean that there 832 may not be wisdom in numbers. Is that the class of objection that so grips the minds of your Lordships that you think it worth attending to in considering the course it is suggested you are to take? The noble Earl says that he does not mind going to the Hague Court because it consists of eminent jurists and experts; but he asks your Lordships to believe that this is to be composed of the riff-raff of the South American Republics possessing no knowledge or learning or anything else. Really, let us be serious. The Prize Court will always consist. of the representatives of the eight principal Powers. It is true that there is the right for the smaller Powers, including Uruguay and Paraguay, very occasionally to send a Judge or a Deputy Judge if they like. They must be of known proficiency in the matter of legal knowledge. Are we to be asked to throw all this away and to say that it means the riff-raff of South America? That is the sort of thing the noble Earl implies by his very grave proposal, and I say it is not fair to those nations who have agreed to this Convention.
§ THE LORD CHANCELLOR
I admit it, and, if necessary, I will withdraw it and apologise to the noble Earl if I have offended him. but I think it conveyed that idea, and was distinctly delineated by him, although he did not fill up the picture. That is, I think, what he wished to convey. This is a Court that all the nations have agreed to. They were serious. They felt, like most Executive Governments have felt, the grave inconvenience of uncertainty in regard to international law. These great statesmen who were consenting parties to this Convention, so derided by the noble Earl, meant business, and they did not think they were going to have a set of unpromising and uninstructed people to form this tribunal. The noble Earl said a thing which I think was perfectly true. He said he could imagine easily a better Court being formed. So could I. There are few Courts with which I have been connected which I could not, if I had the opportunity, better. But the noble Earl must remember that we did try. There was a proposal made that the Court should consist merely of representatives of the Great. Powers. Your 833 Lordships can understand the angry clamour that arose among those Powers which were not recognised as great when a proposal of that kind was made. It came to this, that there was no other Court which could be obtained except this. What you have therefore to consider is whether this Court or the existing, system is the better. That is the first point on which you have to make up your minds. It is not a case of improving as you would like.
The present system is that, whenever a nation is at war and captures enemy ships, the belligerent itself is the sole judge and the sole guide as to what is right and what is wrong. It has to decide the case itself, being an interested party. Our mercantile marine is to be brought before a belligerent Court, judging in its own case. For instance, the captures by Russia in the Russo-Japanese War gave a great deal of trouble to the Executive Government at the time. The decisions had to be taken by the Russian Courts. Were they satisfactory? Your Lordships know perfectly well that they were very unsatisfactory in some respects, and that in some cases we got no redress. That illustrates the value of the point of the noble Earl. He says, "Ah, we were not bound by the Russian Courts. We shall be bound by the new International Court." It is true. that we were not bound by the Russian Courts, technically. Were we in fact? There was the case of the "Knight Commander" and the "Oldhamia."
If the "Knight Commander" had been sunk under Article 49, and had this Declaration of London been the law at the time, I do not think the owners would have got a penny of compensation. It is a doubtful question whether the owners of the "Oldhamia" would have obtained compensation.
§ THE LORD CHANCELLOR
I am coming to that. There was the case of the "Knight Commander" and there were some other ships in which no compensation was ever paid. You got nothing for the "Oldhamia," though we tried for six years. Technically you are not bound, but what is your method of redress? As the existing law is, the only method of redress, if the Courts of a Power which has captured your ship refuse to give you redress, is the stern arbitrament of war. 834 Of course, we are not going to war on account of the "Oldhamia" or any question of the kind. The effect is that technically you are not bound by the Prize Court of a particular belligerent nation, but practically you are, and that has been the difficulty which has been better illustrated by the Russo-Japanese war than in any other case. I say it is better to have an International Prize Court than to have the tribunal of a belligerent judging in its own case. At all events you have an appeal. The "Oldhamia" ease might have been taken from the Russian Court under this Bill to the International Prize Court, whereas now there is no appeal of any sort or kind.
Supposing Great Britain is at war, the opponents of the Bill say that it deprives us of the support which we would otherwise get from a powerful neutral, such as the United States, if an unscrupulous enemy tried to treat all food stuffs as contraband and so starve us. That is the position taken up by the noble Earl, to which lie attaches great importance. Supposing, for example, we were at war with a Continental Power. The argument of the noble Earl is that as the law now is, the United States would protest if ships carrying food were stopped by the belligerent, but that, if an International Prize Court is set up, the United States would not protest because they would consider themselves bound by the decision of the Court. That argument. really is not sound, because it never is worth the while of a neutral to go to war in respect of a question of that kind. We all know perfectly well that the sinking of a ship is a very small matter to a neutral, and they are not going to engage themselves in a great war on a small point of that kind.
You may depend upon it that, in regard to the food supplies of this country—and I have never failed to be one of those who recognised it—your protection is your Navy, and you have got no other protection, and no kind of Treaty or obligation will suffice to be a substitute for the strength of the Navy. This argument of the noble Earl is one which ignores that great point, without the remembrance of which we can never fairly discuss these maritime questions. So much for the Court. On the balance of gain and loss I venture to think that your Lordships will judge that the gain is ours. At all events, I would ask you very seriously to 835 consider before you take the very strong step of throwing out this Bill and leaving us to face the nations of the world with whom we have entered into negotiations.
The next objection is that, by the Declaration of London, States are not prohibited from converting merchant ships into fighting ships on the high seas. Our position at the Convention was that you cannot under any circumstances convert on the high seas, but all the other Powers—Japan, I think, was the only Great Power that supported us—said, "We will not accept that," and they never have accepted it. Every one who is familiar with this subject knows that we are against the world alone, or practically alone, in upholding this view. The other Powers that objected to our view included France, Russia, Germany, and Austria. I cannot enter into a discussion of fact. I can only state that it is my distinct view of the subject that the other nations will not accept it, certainly those I have quoted will not, and I say that Japan was the only Great Power that distinctly supported us. The United States of America took an attitude which was neither one way nor the other. That was our view. If we had been able to prevail we should have prevailed. But we could not. and therefore a compromise was adopted. Not being able to arrive at a conclusion, the law was not altered, and each nation is entitled to apply, as it pleases, its own law.
It is surely rather difficult to complain that we have not secured consent when other nations were not willing to consent. We have not altered the law in this respect, but it is said by those who object that, before you set up an International Prize Court, you could, if you were a neutral, give notice to a belligerent that you would not allow your ships to be captured by any vessel which had been converted on the high seas. And it is said that now after this international Prize Court is set up you could not practically say that because you are bound to leave it to the Prize Court. I think that is a perfectly true observation, and I agree with the noble Earl that it would be difficult for us, when the International Prize Court had been set up, to give notice beforehand, we being neutral, that we would not allow our ships to be captured by vessels which had been converted on the high seas. It means that if your ships are captured on the charge of 836 carrying contraband or of breaking blockade by a vessel which has been converted on the high seas, you will no longer be able to make that a casus belli Is not that really what it comes to? There are very few ships that are in the least likely to be carrying contraband or breaking blockade. It is a lawful but not a very meritorious service. The difficulty cannot arise unless one of that class of ships happens to be captured by a ship of war which has been converted on the high seas. I agree that by leaving this and other questions to the International Prize Court you are precluded from making it a casus belli That is the total amount of your loss in this respect. On the other hand, if you are at war you get a great deal because the Court does not affect any belligerent, and has no authority except between neutral and belligerent.
The next complaint is this. It is complained that under this Convention a belligerent may destroy a neutral prize before condemnation by a Prize Court. Our contention before the Powers was that you could not do that under any circumstances. I think all the Powers maintained that they could destroy a prize at sea and that the Prize Court could afterwards decide whether you ought to pay compensation or not. There again our opinion was directly opposed to the opinion of nearly all the nations. The result was a compromise to this effect, that you may destroy if military necessity requires, but if military necessity does not require it, you must pay compensation, whether or not the ship destroyed was a lawful prize. We have gained by that because we have limited the powers which practically all the other nations of the world claimed to use in an unfettered sense. We have succeeded in obtaining a limitation of that, and that is good for us in every way. As belligerents we obtain a right like other nations to sink prizes if military necessity requires it, and I am told there are many sailors who think it might be necessary for us to use that power in some cases. If we could prevent other nations from sinking without condemnation by a Prize Court, it might be better, but I believe naval opinion differs on that subject also, and since we have practically the whole world against us on that, are we not right to come to a compromise such as I have indicated?
I now come to the last point which the noble Earl made a matter of complaint. 837 He said that under the language of Article 34 of the Declaration of London our enemies might seriously interfere with the food supply of this country by treating every port in the United Kingdom as a "base," and so stopping neutral ships laden with food coming to the United Kingdom. We say that the word "base" and the ancillary word "fortified place" cannot mean what the noble Earl is afraid of. We also say that 90 per cent. of our food comes in British ships, so that the danger if it be a danger only affects 10 per cent. of our food supply. At the same time we recognise that it is a thing on which the public opinion is sensitive, and it is the only thing that has any real substance. And this is the offer which was made by my noble friend Lord Beauchamp, and, I am afraid, practically ignored by the noble Earl. Let us see how far it goes. It says—Part III of the Naval Prize Bill does not become operative until brought into force by all Order in Council. It is not the intention of His Majesty's Government to issue any such Order in Council until they are satisfied that the other Powers who have signed the Declaration attribute the same meaning to the words 'base' and 'fortified place' in Article 34 of the Declaration of London as His Majesty's Government. His Majesty's Government are willing to undertake that no Order in. Council will be issued under this Act until it has been shown that there is such an agreed definition between His Majesty's Government and the other Powers concerned. When this is so, the definition \yin be laid before Parliament, and no Order Council will be issued under this Act until Parliament has had an opportunity of discussing the definition.I want respectfully to put again to your Lordships the considerations with which I commenced. This House has the power of throwing out this Bill. It has the power of placing us in a position which your Lordships can imagine with regard to foreign nations, in the face of the advice of the Executive Government, of those gentlemen who were commissioned by the Government without; ally pretence of Party preference, sent out to negotiate and discuss this subject; in the face of the other States comprising the British Empire on the Imperial Conference with the exception of Australia, which adopted a neutral attitude, and upon the ground mainly of the speech of the noble Earl, Lord Selborne, supported by a newspaper agitation and the adverse criticism of some Chambers of Commerce. That is exactly the situation, and so anxious are we, not from a Party view—and I am sure the same could be said of the other side, for there is no Party interest in this business—so 838 anxious are we that this which we believe to be a valuable and useful Bill should be promoted and passed into law, that we have made the offer which I have read out to your Lordships. I venture to think that this House, with its sense of responsibility, will think twice, will think thrice, before they will do what they are asked to do by the noble Earl.
§ THE EARL OF HALSBURY
My Lords, I quite agree that technically we are engaged simply upon a discussion of a Bill which is to set up a new tribunal, but I think it quite impossible adequately to consider its importance and relevancy without some allusion to that which I agree, in strictness, is quite beside the particular matter which your Lordships have to decide. I think the matter lies within a very small compass, and I certainly do not propose to do what I think it would be inadvisable indeed to do—namely, to go over the whole question of the Declaration of London. I think it practically comes to this, whether we are going to alter international law, and herein I must ask the noble and learned Earl a question. He adheres to the opinion which I understood he gave to me on a former occasion, that M. Renault's views are authoritative. Upon that a greal deal of this question turns. If the views of M. Renault and the Code which he makes up out of the Declaration of London are in truth authoritative and the tribunal to be erected is to be bound by them—I understood that was the noble and learned Earl's admission to me on a former occasion—if he adheres to that opinion, then I cannot. help saying that it appears to me that this Bill gives us the only opportunity which we can have of authoritatively determining whether that part of the Declaration of London is to be binding or not. The Treaty-making power is in the hands of His Majesty, of course advised by his Ministers, and in those circumstances all we can do is to prevent the making of a new law which is not within the Sovereign's prerogative, and which we have the power of dealing with. And if, in truth, what we see in this Bill is something injurious to this country, we have the right, and I venture to say the duty, to insist upon our right to prevent that injury being done—
§ THE LORD CHANCELLOR
Will the noble and learned Earl allow me to answer a question he put just now"? I ought to 839 have mentioned it before in regard to the General Report. This is what happened at the Imperial Conference [page 107]—Mr. Mallon: Sir Edward, perhaps this would be the point to put in a question: What do you regard as the exact legal force of the General Report?Sir Edward Grey: The "General Report" is the Report of the Conference, and our view is that it was accepted and became part of the Conventional arrangement, in the sense of being an authoritative interpretation of the Declaration of London; that is one of the points which we shall make a condition of our ratification, that that view should be accepted by the other Powers.That is exactly what I think I said in answer to the noble and learned Earl on the last occasion.
§ THE EARL OF HALSBURY
I rather thought that was the answer which the noble and learned Earl would give. But then we are dealing with that particular document—I hesitate to describe it by any particular name—and that document lays down as one of its provisions that the Court shall determine the law if in their view the law has not been already determined. It also provides that where they think it proper to do so they shall lay down their own law, and I must say that it is described very candidly what their view of that is. Their view of what is right, is to be their view of what is justice and equity. You are erecting a new tribunal and giving it no Code; but you give it absolute power to determine what is right. That sweeps aside 200 years of decisions and says that this new Court shall determine. I protest against any such thing being done. It was said that Gustavus Adolphus had his treaties of peace and war under his pillow; he carried them about with him. But, at all events, without going to that extreme limit, here is a Court that has given satisfaction to a great degree in an enormous amount of litigation, established among ourselves, with a reputation. I need not mention many names, but Sir William Scott, and in more modern times Dr. Lushington and Sir Robert Phillimore and a great many very learned persons, have established, gradually established, a system and a Code of international law which has commanded respect in every country in the world.
Now for the first time that I have heard of, instead of looking at what is actually agreed to in the Code, looking at the actual words and the different Articles of the Treaty itself, we are to look to this which 840 has been agreed upon by this somewhat extraordinary Convention, and your Lordships are to be guided by that in determining whether or not you will erect this new tribunal. If there is one thing which renders administration of law more difficult than it should be it is the question of there being an exact statement of what. the law is. From time to time we are constantly endeavouring to ascertain what is meant by certain words. But if, besides that, you are going by what the secretary has drawn up—I do not know what M. Renault. is by profession, but he has drawn up this Report which is to be the authoritative explanation of what the Code means—I confess it seems to me sufficient to condemn this Bill. I certainly never would agree to any such tribunal unless I had absolute and perfect confidence in it; and seine of these questions, which are, by the admission of the noble Earl himself, most important questions, have been left open questions to be determined afterwards by this new Court.
I do not wish to go through them all, but take this question of the conversion of merchantmen. I think the noble Earl has under-rated this, because what it practically means is the re-introduction of privateering. They might very readily be turned into war vessels. A good many ships of the mercantile marine in these days are built in such a form that without much difficulty they could be turned into ships of war. They might, at some time or other, when at sea, without any notice at all, be turned into war ships and then when it was convenient, revert to merchant ships. If that would not give opportunity to privateering, I do not know what would. I think the noble Earl is a little mistaken about the agreement of the different Powers in that matter. I understand that the decision was seven to three; but what objection was there to determine the matter one way or the other? I think it so important that I would rather have surrendered the Treaty than that the matter should be left where it is. Again, why was not the definition of "base" determined then? Why did not those who had the responsibility of agreeing to this Treaty say, "When you speak of a base, let us know what is meant. Let it be defined." Instead of agreeing or disagreeing at the time when there was an opportunity, we have, as my noble friend says, this offer.
§ THE LORD CHANCELLOR
We have always maintained the same thing about the word "base" I believe those who negotiated never thought this point would be raised, and I do not now think it could be raised. That is our view. We say we are perfectly prepared to give you the undertaking that we shall see it defined before the Convention is brought into effect, and surely your Lordships will be satisfied with that. That is a fair offer.
§ THE EARL OF HALSBURY
That is my case. Are you going to do it whether we agree to this Bill or not? Are you or are you not going to say that you will not accept until after an Order in Council and until after a discussion in Parliament?
§ THE LORD CHANCELLOR
We should not accept any meaning except that which we have stated in this House to-night. I cannot state it any fairer than that. That is our view, has been our view, and will be our view throughout.
§ THE EARL OF HALSBURY
Very good, then. I cannot understand the noble Earl when he uses such a phrase as "Our offer." What offer? Is it an offer to the majority of this House, or is it not? And if it is an offer may I ask, Has any precedent, for any such procedure ever happened in this House? I venture to think not. I do not desire to discuss the Declaration of London. We discussed it at some length before. But what I would like to say about it, speaking generally, is this. I agree entirely with what the noble Earl said about our being dependent upon the strength of our Navy, and every one knows that the great power of this country is in its Navy. But I cannot help saying that the Declaration of London appears to have been conceived in the spirit of increasing the powers of the nations with large Armies and decreasing the powers of those who are in a great measure dependent upon their Navy. The noble Earl threatens us, as it were, with the displeasure, of those Powers whom we invited to come to agree with us and who have agreed with us to some extent, although they have left these open questions and not agreed with us entirely. We are told that if we reject what has ultimately been done, we expose ourselves to a great responsibility. I do not want to use the language, of braggadocio, but I think we are entitled to have our own view on this subject and I hope we will 842 stick to it and not be swayed by the consideration that the other countries who do not agree with us may be displeased if we do not agree entirely with them. For one thing, as I pointed out, we have not a defined Code which this new Court is to observe. It is given absolute and unlimited powers such as I believe no Court ought to possess; and in these circumstances I regard this as one of the most | mischievous and reckless proposals I have I ever seen put before your Lordships' House.
LORD MAC DONNKLL OF SWINFORD
My Lords, I intervene in this debate with great reluctance, but as a member of your Lordships' House who has endeavoured to make himself master, so far as he could, of the intricacies of this discussion I thought that perhaps it might interest your Lordships to hear the results at which I have arrived. After reading the Papers with which we have been flooded, I came to the conclusion that the subject might be most properly considered from two points of view: the case of this country being a belligerent; and the case of this country being a neutral. In the former case, when Great Britain is a belligerent, it is admitted on all sides that the Bill has no application. It will in no degree fetter or limit the freedom of action of this country, consequently. I may put that aspect of the case out of consideration. In the case where Great Britain is a neutral and her ships suffer loss, Great Britain has at present no remedy except that which she can seek in the enemy's Prize Court. It seems to me to be obvious, therefore, that the provision of an independent. International Court of Appeal of this description must necessarily be of some use. Whatever the constitution of the Court, it gives to the applicant for redress some chance, of obtaining it. He has an appeal from the Court of the enemy's country, and I consequently he may succeed in his appeal. From that point of view it seems to me that the International Court is a clear gain to this country.
On the other hand, take the case of Great Britain being a belligerent and seizing neutral property. The neutral owner will have, in the first instance, his remedy in the Prize Courts of Great Britain, and, as the noble and learned Earl has said, these Prize Courts are so excellent and have established such a 843 reputation throughout the world for fairness and justice that it may be hoped that the applicant will go no further, and that he will obtain in those Courts all the assistance necessary. But assume that he has not the same confidence in the English Prize Courts that we have, it will surely be of great advantage to him to have an appeal to this independent tribunal. And I can see no reason why Great Britain should refuse him that appeal, unless it be the object of Great Britain to bring pressure to bear upon neutral States in order to bring about the cessation of the war. These points of view occur to me as justifying the establishment of this International Court, and I must say that from all I have heard to-night I see no reason for changing the independent conclusion to which I came.
§ LORD DESBOROUGH
My Lords, having brought forward a Motion on this subject in your Lordships' House on March 8 last, I hope I may be permitted to make one or two remarks on the subject, although it is very far from my intention to go at any length into the question of the Declaration of London, which has been fully and amply discussed. The noble Earl who moved the Second Reading of this Bill remarked that the whole of the criticism would be directed to Part III of the Bill, which sets up this International Prize Court, but there is another matter to which I would like to call the attention of the Lord Chancellor for one moment. It is on a Constitutional point. Clause 30 in Part IV of the Bill seems to me to infringe the Prerogative of the Crown. I am not a lawyer, but I believe it is absolutely admitted by all lawyers that prize inures to the Crown. Now to my mind Clause 30 does most decidedly interfere with the Prerogative of the Crown in the matter of prize, and I should like to ask the Lord Chancellor whether that is the case. It has before now only been found out at the last moment on the Third Reading of a Bill that the Prerogative of the Crown has been infringed. This has occurred several times in the House of Commons. On one occasion, in April of 1852, Mr. Speaker, on the Third Reading of a Bill, declined to put the Question, and the proceedings were declared null and void. In the year 1866 the Speaker refused to put the Question on another Bill, on the ground that the House could not interfere with the Prerogative of the Crown. A similar 844 thing has also happened in your Lordships' House. There Was a Bill connected with the diocese of St. Asaph and Bangor. The Royal Prerogative was affected by that Bill, and what happened? The Lord Chancellor at that time desired the instructions of the House, a Committee was appointed, and the Bill was withdrawn.
§ THE LORD CHANCELLOR
I certainly never heard of this point before. I am not at all sure that private property belonging to a British subject would inure to the Crown. But I will look into it. The consent of the Crown can be given at any stage.
§ LORD DESBOROUGH
The Lord Chancellor says that the consent of the Crown can be given at any stage, but I should like to point out that the Crown, in person, can only place the Prerogative of the Crown at the disposal of Parliament. The Crown, as far as we are concerned, is now in Commission.
§ LORD DESBOROUGH
Whether the Prerogative of the Crown can be placed at the disposal of Parliament by wireless telegraphy I do not know, but my point is this. Suppose, for instance the "Olympic" or the "Lusitania," has been captured by a foreign Power and recaptured by British forces. Hitherto, the Crown would dispose of the Prize money, but that power is taken away by Clause 30 of the Bill, and that is the point on which I should like the opinion of the Lord Chancellor. However this may be, what we are considering at the present time is whether the Court that is proposed to be set up is a good Court, and whether the rules, as far as they are laid down, which it is going to be governed by are good or bad rules. I have no hesitation in saying that in my judgment—which docs not go for much, but I have spent a year in considering the various points raised both by the Declaration of London and by this Bill—I believe the Court to be a thoroughly bad one, and the rules to govern this Court to be if possible, worse. The Court which is going to be raised to revise our Prize Court decisions and those of the King in Council is to be composed of a motley array of various States, forty-five in number. I believe it is absolutely 845 impossible to conceive a more unsuitable Court than that to act as a Court of Law, revising the decisions of Courts which have been given, after due consideration, in various countries. It is really a Parliament of States selected, as far as I can see, quite haphazard, and on no fixed principle of any sort or kind. As a matter of fact, the United States refused to be bound by this Court. They have absolutely declined, as far as I understand, to have the decisions of their Prize Courts and of their Prize Courts of Appeal revised by this Court. They have taken power, I admit, not to have the decisions of their Prize Courts revised by this international opera comque Court, but to find other means of enforcing their decrees.
THE EARL OF DESART
I am sure the noble Lord is the last man to desire to make a false point, and I can assure him that the difficulty was not raised by the United States representatives till the last days of the Conference. It was only disclosed just a few-days before, the conclusion of the Conference—it had not been raised before—that under the Constitution of America, which could not be altered without very great difficulties, it was not possible that there could be any appeal against a decision of a Supreme Court. There was no unwillingness to submit to the International Prize Court; they said, "We must try to devise some scheme by which we can come before the Prize Court." It was not that they objected, but it was found to be Constitutionally impossible.
§ LORD DESBOROUGH
The fact is, it is contrary to the Constitution of the United States to have their Prize Court decisions revised by this International Court, and I only wish it was the case with us at the present time. It is rather curious that the United States Prize Court decisions, which are founded upon English Common Law, should be impossible to be reversed and that they should stick to them, while we should have to submit our decisions to the consideration of this very composite body, with its very curious and very nebulous | rules. The composition of this Court has already been brought before your Lordships' House this evening. I have looked up some of the records of the States who are to revise our Prize Court decisions, which have been the admiration of the world for two hundred years. No fewer than seven of these States are at present unable to meet their creditors, and I have also looked up one other State in the "Encyclopædia 846 Britannica." I have a sneaking regard for this State. But I should like, to bring before the House some conception of this supreme Court and the jurisdiction which is going to revise the decisions of the English Prize Courts. The State to which I allude is the respectable but not very large Republic of Hayti. I find that it consists of just about twice the area which used to be in the jurisdiction of the Thames Conservancy with regard to the purification of water. It has an Array of 7,000 men and its Navy has gone to the bottom. I believe it consisted of only one gun boat, but that, unfortunately, met with a mishap two or three months ago. According to the Encyclopædia [Vol. 12, p. 825], corruption is spread through every portion and branch of the Government; Justice is venal, and the police are brutal and inefficient; the inhabitants appear to be kindly, but ignorant and lazy, and have a passion for weird African dances which they perform, to the accompaniment of a tom-tom. I have not a word to say against this State, because I believe it is a most enjoyable place to stay in, but it would have the power of appointing a Deputy Judge to this International Court, and this Deputy Judge would, in certain circumstances, have an equal voting power with us, who possess 50 per cent, of the sea traffic of the world. Hayti may under certain conditions, in the third year, replace, as far as I understand, Venezuela, and when they replace Venezuela the gentleman appointed by Hayti will have equal power with us. He will deliberate in secret; no one will know how ho votes, and he may, in some important maritime question, be able to turn the scale against this country. Though I have nothing to say against Hayti, I must say that if a Republic of this character has the, power to appoint a Judge to this Supreme Court, surely there are other States of a less corybantic nature who should have an equal power of appointing a Judge. For instance there are our Dominions, Australasia, Canada and South Africa, who have not one single member, though they have one-sixth of the sea trade of the world.
There is another rather important question with regard to the Court. The language of the Court is not yet determined. No one has the smallest conception what it will be. The Court has power to appoint its own language. The Court, as constituted, has not yet had its language defined, except that there is one provision which says that 847 the language of the Court in first instance may be used. Take a case before Japan. Supposing a case came up first of all in the Japanese Court, you would have Japanese as the allowed language before the International Prize Court, and I suppose, if you allow the other party to use his own language, you may have Turkish. Then also the Court is allowed to speak in its own language, which may be French, or Dutch, or anything. I venture to point out these questions, because they are too large to be left open. What would happen to a private litigant who went before this Court? First of all he has not the smallest conception of the language he has to plead in. This is a Court of Appeal; he may have been through two other Courts before, and he would find it very expensive. If he is in Russia he would have to go through three Courts, and then lie would come to this Court, in an unknown language, in which he has to instruct counsel, and even then the utmost he can get is the bare value of what he has lost. There will be no compensation, and a great many deductions are to be made from what he might get, including possibly the cost of a commission.
Then, the powers of the Court are also very strongly objected to. The powers of this Court are absolutely unrestricted M. Renault most carefully says that this Court is to make the law. He says so in this Report, which we now know to be absolutely equally binding with the Declaration of London itself. This, it seems to me, instead of producing order out of chaos, makes the whole, business absolutely uncertain, because no one can know what decision is likely to be arrived at. As to the effect of the Court's decision, we are bound to carry it out according to Clause 28, which says—The High Court and every Prize Court in a British possession shall enforce within its jurisdiction all orders and decrees of the International Prize Court in appeals and cases transferred to the Court under this part of this Act.Then we have also been told by the advocates of the Bill that although we may suffer on other points, at all events, on blockade, we gain on the whole, and the argument has always been that because we gain on blockade therefore we were to sacrifice the whole of our food stuffs coming to this country which may be carried here in neutral vessels.
But with regard to blockade, I must say I strongly dispute that point. Sir Edward 848 Fry, our head Commissioner there, has admitted that the rights of England as a belligerent suffer under blockade. Perhaps it is unnecessary to quote the exact passage, which I have here, but the laws of blockade seem to be the most extraordinary laws ever invented. Supposing you are blockading a port. You have a number of ships told off to blockade it, and a sort of undefined blockade area is established. In this area, you may catch, if you can, a ship that is breaking blockade. Of course, a ship that is doing that is either succouring the enemy or carrying arms and ammunition against the lives of your own people. But it is only in this area that you can catch this vessel. If she gets out of this area or zone you are not allowed to interfere with her, and the amusing thing is that only one of these ships told off for blockade duty is allowed to catch her at all. It would be useless to send a wireless message to one of your cruisers to catch this vessel, because directly she gets out of this area you are bound to let her go, and the cruiser in question not being one of the blockading force is not allowed to act. It is just as if you live in Belgrave-square, and some one commits a burglary in your house there, and you have a policeman whose sphere of operations is Belgrave-square. According to these rules it would be only the policeman in Belgrave-square who could catch the burglar, and only in Belgrave-square. If the burglar gets outside the square that policeman cannot touch him, neither would an officer on another beat be allowed to touch him. I will refer briefly to what has been said by the Lord Chancellor with regard to 31. Renault's Report and the offer which has been made by the Government—
§ LORD DESBOROUGH
My own opinion with regard to these Articles is that they certainly want retranslating. The translation is very bad, and in many cases does not convey the meaning as it is in French, and the French text is binding. Besides that they want to be altogether redrafted. If this House or the other House of Parliament agreed to an important Treaty like this with the Articles so ill-defined, it would certainly not conduce to justice in the future. Now, 31. Renault has a long report on Article 33, which has already been alluded to, with regard to 849 foodstuffs; this requires a great deal more than merely a new definition of "port of supply." M. Renault speaks of port of supply as any port which may supply food to the Army, but he goes a great deal beyond that. What he says in this Report-is that "the State is one," and therefore if you supply food to a civil department, that civil department could send it on to the army department and therefore the food would be contraband. The Lord Chancellor shakes his head, but I think I am accurate. Monsieur Renault says—The State is one although it necessarily arts through different departments. If a civil department, may freely receive foodstuffs or money "—That is not the question of a port, which the Government is going to define—that department is not the only gainer, but the entire State, including its military administration, gains also, since the general resources of the State are thereby increased. Further, the receipts of the civil department may be considered of greater use to the military administration and directly assigned to the latter. Money or foodstuffs really destined for a civil department may thus come to be used directly for the needs of the army.There is no question of a port here. This is his explanation of whether you may send food or not. You may not consign food to a civil department because, forsooth they may turn it over to the war department, and therefore, as he says, the whole State might gain. But that is the position in England at present. We have no neutral ports. Directly you come to a question of ports under the Declaration of London, why every ounce of food coming to this country in neutral ships would be absolute contraband. The definition is in Article 24—The following articles, suspectible of use in war us well as for purposes of peace, may, without notice, be treated as contraband of war, under the name of conditional contraband.And the first of these things is foodstuffs— the food of the people which we import at the appalling rate of £484 a minute, including tobacco. Here, under this precious Article, all this food may, without notice, be declared conditional contraband. Article 34 goes on to show how this conditional contraband is converted into absolute contraband, and one of the reasons is that it may be taken directly to a port which may be a port of supply for the army. Under the old law, it used to be a port of naval and military equipment—a port, as the noble Earl, Lord Selborne, said, of equipment, like Ports- 850 mouth. The States who are going to sit in judgment, on us, would be bound to construe it as it is put here, not according to what the Lord Chancellor or the Government says it means.
§ THE LORD CHANCELLOR
I am sure the noble Lord does not want to mislead the House. I would not presume to set my opinion against his as to construction, but we told you plainly by a written document that our construction is just the same as that acknowledged by the noble Earl. We have said we will not bring this into effect unless we get the consent of the other nations to the same construction.
§ LORD DESBOROUGH
When the phrase comes up it will then be time to discuss it and see if it is adequate. But my contention is that there is a great deal more that has to be altered in the Declaration and the Report to carry out the intent-ions of the Government. Whole pages will have to be redrafted. As it stands, the Report will occasion much confusion, as in several places it is impossible to reconcile it with the Declaration itself. I do not wish at this late hour to detain the House, but I should like to say that the Lord Chancellor, whom I personally very much revere, has made a most touching appeal to the House, from his point of view, not to go behind the Agreement arrived at, after due consideration I think he said, on this very important matter. I have just come back from Canada, where a similar thing has happened. What did we have there? We had a Ministry, without any mandate from the people, without even their knowledge, signing an Agreement with the United States with respect to certain reciprocity arrangements. After signing it they referred that document to the people. They were committed to it, but the people would have none of it, and I venture to say that if this Declaration of London, with its Prize Court which I have attempted to very briefly describe-though I have not done justice to the subject—if this Prize Court Convention and the Declaration of London were submitted to the people of this country they would receive a most emphatic condemnation if one can judge from the declared opinion of those representative bodies which have considered them. I am sorry that the noble Earl rather scoffed 851 at the Chambers of Commerce. I can only say that as far as I am concerned I have looked into this Declaration with an absolutely unprejudiced and unbiased mind. It was, I acknowledge, the impartiality of ignorance which was admittedly shared by a large number of people, as the country was not aware of what was being done in its name. But the. London Chamber of Commerce appointed a Committee a year ago last August. We asked others to attend, men learned in the law, especially in maritime law, representatives of the grain trade, Lloyd's, and all the various great industries of the country. We sat, I think, for a month. It was not a superficial examination but a most careful consideration of every clause of this Bill, and we drew up a reasoned commentary which we forwarded to the Government, who treated it with a very slight sort of attention. But the main thing is this that if this proposal was submitted to the country I am perfectly convinced, judging from the feelings of the representatives of the shipping trades, the Chambers of Commerce, both the Services, the corn trade and insurance societies, it would receive a most emphatic condemnation. I do implore the Government not to ratify the Convention or force a Bill on the country to which I firmly believe the whole country is most determinedly opposed.
§ EARL BRASSEY
My Lords, my observations will be brief. As President of the Association of Chambers of Commerce, I have had ample opportunity of knowing their opinions. The majority are opposed to the ratification of the Declaration. They might have taken a different view if they had been consulted at an earlier stage and Mr. McKinnon Wood's able addresses had been delivered before and not after the Conference. Chambers of Commerce are not unanimous. In the Port of Liverpool Mr. Royden, President of the Steamshipowners' Association, spoke in favour of ratification. My Lords, not without cause, the Government has been moved to take action in this matter. Our experience of the Russo-Japanese war had shown, not for the first time, that international law was in a state of chaos. A tribunal was needed more satisfactory than the Prize Courts of the enemy. The subject was brought forward at the Hague. It was there decided that an International Prize Court should be 852 established, and that representatives of the Powers should meet to draw up an Agreement as to the law which the Court should administer. We invited delegates to meet in London. It became the duty of the British Government to make choice of representatives. The noble and learned Earl who sits on the Cross-Benches (Lord Desart) was the British Plenipotentiary. He is an eminent authority on maritime law. Our naval delegates were officers exceptionally qualified. Throughout the proceedings they were in close touch with the Admiralty. The Declaration was submitted to the Colonial Conference lately held. The Premiers had expressed regret that the Dominions had not been consulted. They were in a critical mood. After deliberations extending over two days, and hearing the explanations offered by Sir Edward Grey and the Prime Minister, a resolution moved by Sir Joseph Ward, approving the ratification of the Declaration, was passed by the members of the Conference, the Government of Australia abstaining. What, it may be asked, do we gain by ratification? It is an advantage to set up an International Court. At first view it did not seem, necessary that the members of the tribunal should include representatives of the minor Powers. The Lord Chancellor has explained the difficulties and the reasons why the Court is to be constituted in the manner proposed. It is an advantage to have a code of international law covering all points on which it is possible to come to an agreement. Let us not attach undue advantage to Codes. Inter arma silent leges. As the Royal Commission on Food Supply rightly observed, in a time of stress and strain the temptation to disregard legal restriction might easily become too great to be resisted by naval officers away from the control of their Government. We are brought to the old conclusion that to keep the sea free to the British flag we depend in the last resort on the Navy, and I take on myself the responsibility of saying that at, the present moment we are not unprepared.
§ [The sitting was suspended shortly before eight o'clock and resumed at a quarter fast nine.]
My Lords, the Naval Prize Bill is a Bill to benefit foreign lawyers at the expense of British shipowners. In the Russo-Japanese war 853 a few British merchant ships were captured and condemned by the belligerents. The amount of shipping lost was but a drop, as compared with the ocean of our total commerce. During, and after, that contest some of our shipowners complained about the uncertainty of war, and wished to make quite sure as to whether their ships would be captured or not under a variety of circumstances. Had they ever read history they would have known that there is no such thing as certainty in war; that they might as well have, asked for the moon or for certainty at auction bridge. Unfortunately, Sir Edward (key's knowledge of military history was also imperfect, and instead of telling them that they wore asking for what could never be guaranteed, he called a Conference of Continental Powers with large Armies, who proceeded to outvote the Island Power that relied on the sea for its food supply. Que diable allait-il faire dans cettegaléerc. Had the Declaration of London been in force during the Russo-Japanese war the owners of the "Knight Commander" would not have been entitled to compensation. She carried contraband and would have been sunk under Article 49. The owners of the "Oldhamia" might or might not have received compensation. It is not a certainty. But as a friend of the entente with Russia I regret that that country did not allow the "Oldhamia" case to go before arbitrators. It is not too late. If she did this it would allay a feeling of irritation, and make it easier for both countries to act in alliance with one another if it became advisable for them to do so.
Some of the Conventions are worse than the Declaration. Article 1, Chapter 1, orders a belligerent to forward the captured despatches of his enemy, unopened, with the least possible delay. This is a thing that may be done in comic opera, but not in real life. Article 3, Chapter 2, practically orders our Admirals to allow the enemy's fishing boats to act as scouts and mine layers, until actually caught in the act. If in war a First Lord of the Admiralty was to insist on our naval officers doing these; things, I think that his subsequent lynching would be a matter of certainty, unless he could manage to shift the blame on to the shoulders of a naval man, as Newcastle did to Admiral Byng in the eighteenth century.
854 A large number of retired Admirals have signed a petition against this Declaration. Mr. McKenna has endeavoured to pour contempt upon them, on the ground that only eleven of them had served as Senior Flag Officers. According to his theory, their opinions alone could be allowed to count. He said that no distinguished officer whose opinion upon a technical subject is worth more than that of the man in the street is against the Declaration. He also said that naval officers vary in their views; but that upon the construction of a Treaty of this kind naval opinion is not liable to be well-informed. Now there are some stations on which it is possible to serve as Senior Officer of a Fleet without having ever to settle an international question. The senior officer present is the man who has to settle international difficulties, then and there, on the spot, whether he be a captain, commander, or lieutenant. His rank has nothing whatever to do with it, as long as he is the senior officer present. He must often act on his own responsibility when out of the reach of telegraphs. He can consult the law books supplied by the Admiralty, but he has generally taken the precaution to read them beforehand. Several of our leading Admirals have lately written their own memoirs, and those landsmen who take the trouble to read them will find that most of them had to do international work of importance, on their own responsibility, long before they reached the rank of Commander-in-Chief. On many occasions officers of the rank of captain have declared blockades and laid down the rules for them entirely on their own responsibility. On several occasions they have shown that they knew more of international law than Colonial lawyers. The retired Admirals of the present day were brought up among blockades and international questions from their boyhood. To have taken part in the blockades during the Russian War, to have watched the proceedings of both blockaders and blockade runners and of Southern cruisers while employed in protecting British interests during the Civil War from 1861 to 1865 was a far better education in practical international law than can be obtained by listening to theoretical lectures by inland lawyers.
Of these retired Admirals I was a contemporary. At the age of fourteen, an age at which the international lawyers 855 were making Latin verses with the aid of a "Gradus," or studying compulsory Greek, I was sent on board the "Duke of Wellington," the "Dreadnought" of the day, flagship in the Baltic, in obedience to signal, for the purpose of transcribing Admiral Dundas's orders for blockading part of the Baltic coasts. In 1857, at the age of sixteen, I was up the Canton River when some Law Court at Hong Kong endeavoured to interfere with the proceedings of a captain of Marines, who, while in command of Macao Fort, near Canton, had captured some junks. The Admiral, Sir Michael Seymour, soon put that Court into its proper place, and, acting on the maxim of Inter arma silent leges, promptly proclaimed a blockade of the Canton River, and allowed no person to enter it without a naval permit. It was admitted by the Foreign Office that no mistake was made by any British naval officer during the Civil War in America, though action had to be taken in some hundreds of cases. Common sense, a practical knowledge of the necessities of the sea, combined with study of the law books on board their ships, carried them safely through. All our errors of judgment in that war were made by the Government and by lawyers, who did not understand war. Of the "Alabama" claims not one sixpence was ever paid in consequence of the mistake of a naval officer. They were all due to lawyers, who meddled with war of which they knew nothing. Our greatest mistake—namely, permitting the escape of the "Alabama"—was due to the bungling of the Foreign Office and its legal advisers, neither of which departments, apparently, knew anything about the value of time in war. The ship was allowed to sail, while they wasted precious moments in consulting one another. One of the lawyers was ill and he had no understudy.
§ LORD SANDERSON
I beg the noble Lord's pardon for interrupting him, but that was not the cause of the escape of the "Alabama."
§ LORD SANDERSON
The noble Lord may have been doing so, but I was employed in the Arbitration and took part in the preparation of the case of the Government. The noble Lord may take it from me that that was not the cause of the vessel's escape.
I am relying on what I read in the Blue Books last week. Now I pass to what I was saying about the "Alabama." It was known for weeks beforehand that the "Alabama" was being built. She was launched on the 15th of May, and did not sail until the 29th of July; yet the lawyers and the Foreign Office reserved their decision, just as if they had been sitting in an ordinary peaceful Law Court, until the time for action had passed. They ought to have read up their law books while the ship was being built, instead of waiting to do so until she was ready for sea.†
Other cases occurred in which the sailors were right and the lawyers wrong. The "Alabama" commissioned a prize, the "Tuscaloosa," as a man-of-war. Admiral Sir Baldwin Walker thought that the "Alabama" had no right to do this, and that the "Tuscaloosa" ought to be seized. The Attorney-General at the Cape said, "No," and she was allowed to sail. Then the Home Government in England said that she ought to have been detained. On her return to the Cape she was arrested accordingly. Afterwards the Home Government said that as she had not been seized on the first occasion she ought to be released, which was done. After the war I met the Confederate officer (Lieut. Low) who had commanded the "Tuscaloosa." The British officer who was sent to board her was the present Admiral Sir William Kennedy, who is one of those who has signed a petition against the ratification of the Declaration. Take again the case of the "Oreto," a sister ship to the "Alabama." She arrived at Nassau flying the British flag in April, 1862. The senior naval officer present, Commander McKillop, of the "Bulldog," wished to place her where she could be under proper supervision, but the local Attorney-General objected. When the "Bulldog" had sailed, Captain Hickley, of the "Grey-†NOTE.—Lord Sanderson's contention is correct. I was misled by M. Staempfli, one of the arbitrators, who in his summing up, under the heading of "Facts of the Case," stated that on the 23rd of. June Mr. Adams made his first representation to Lord Russell, and that on the 25th June Lord Russell transmitted this remonstrance to the Law Officers of the Crown. M. Staempfli appears to have applied the term Law Officers of the Crown to a firm of Liverpool solicitors who were consulted in the matter. The Attorney-General and the Solicitor-General did not receive the papers until the 28th July.—ELLENBOROUGH.857 hound," became senior officer. He sent an officer on board the "Oreto" and proposed to send her to the Commodore or Commander-in-Chief, on his own responsibility, but the Governor of Nassau and his Colonial lawyers prevented him. We had to pay heavy damages afterwards. For on leaving Nassau she went to Mobile, where the was duly commissioned as a Confederate man-of-war under the name of the "Florida." I met her afterwards at Bermuda. I recollect supplying one of her officers with refreshment of a fluid nature in the wardroom of H.M.S. "Shannon," which may, or may not, have been a breach of neutrality on my part. The United States ship "Wachusett" also appeared at Bermuda while, I was there in chase of the "Florida."' Later on she met the "Florida" at the neutral port of Bahia. Brazil being at that time a weak Naval Power the "Wachusett" ran alongside the "Florida" in the night and captured her. To prevent further complications or remonstrances the "Florida" was accidentally sunk on her way to the United States.
Now, the captain of the "Wachusett" achieved his object, as the "Florida" did not capture, any more Northern merchant ships. I mention this case to show how utterly naval officers disregard so-called internal ional law when the interests of their country demand it, and their country is prepared to back them. We must expect similar cases to arise in future. But when in harbours belonging to powerful neutrals the captains of belligerent ships behave very differently. For instance, when the U.S. ship "Iroquois" met the "Sumter," which was a much weaker ship, at Martinique, she steamed up to within fifty yards of her, but did not dare to violate the neutrality of France. A similar case occurred in January and February, 1862, inside the Isle of Wight. When in the Solent the "Shannon" received orders to open fire on the "Tuscarora" if that vessel interfered with the Confederate cruiser "Nashville" and did not give her twenty-four hours start. I saw the "Nashville" steam, out in broad daylight, close to both ships. It was my first watch that night-8 till 12. The "Tuscarora" had a large cabin port, and with my telescope I watched the American captain writing his despatches and consulting his law books until a late hour. I may add that the "Shannon" was a much larger vessel than 858 the "Tuscarora," and the "Tuscarora" was more powerful than the "Nashville."
I mention these things to show that my contemporaries, the Admirals on the Retired List, had exceptional opportunities for learning more about international law as actually practised than the men in the street, to whom, Mr. McKenna compared them. Is not being actually engaged in carrying on a blockade as a belligerent, or watching a blockade as a neutral to see that your country's interests are not injured, a better school of international law than poring over a number of cases of ancient Prize Court law, in which no mention is made of the strategy or the real reasons which caused a belligerent to seize a neutral ship? In some cases it is most important to seize a ship; in other cases seizure can have little effect on the war. Does Mr. McKenna suppose that Admirals on being retired forget all that they have learnt, either in youth or middle age, either as neutrals or as belligerents? They do not drink the waters of Lethe and forget what they learnt in youth and middle age when they go on the Retired List.
In considering the definition of the word "base" in Article 34, it is as well to look up some of the precedents of the American Civil War. The Geneva Court held that Melbourne was "a base of operations" in the case of the "Shenandoah," because she had received coal and other supplies when at that port, and that Great Britain was therefore liable for her subsequent depredations. Sir Alexander Cockburn, the Lord Chief Justice, objected to this, and tried to get the Court to accept the following definition of a "base of operations"—In naval warfare a base of operations would mean a port or waters From which a Fleet, or a ship of war, may watch the enemy and sail forth to attack with the possibility of falling back to the fort or water in question for fresh supplies or shelter for the renewal of operations.With Sir Alexander Cockburn's clearly worded opinion and the Geneva precedent before them, I am afraid that any International Court, however constituted, would consider that every harbour in this island was a base. Sir Edward Grey, in answer to a Question in another place, has endeavoured to minimise the effect of this decision of the Geneva Court and Sir Alexander Cockburn's opinion. But I do not think that his arguments would convince any jury of moderate intelligence or 859 any man of legal training. They are scarcely likely to be accepted even by the poly-chromatic Court that it is intended to call into existence. Why not give up the point at once and admit that it was overlooked when the Treaty was drawn up?
It has been frequently asserted that the Declaration does not in any way affect the conversion of merchant ships into men-of-war on the high seas, that it leaves the position unaltered. Lord Des-borough has in the course of this debate given reasons why that is not the case, and I shall not, therefore, trouble this House by repeating them. Is it not quite clear that if the International Court decides that the capture of a neutral by one of these vessels is legal, that by so doing it will give a status to these ships which they have not had hitherto, and that the belligerent whose life is dependent on its commerce will be put in a worse position by such a decision. Mr. McKinnon Wood, Under-Secretary of State for Foreign Affairs, stated that the number of ships fast enough to pay to convert, in the mercantile marine of our opponents, can be counted on the fingers of one hand, Now with a foreign Government it is not a question of paying to convert or of making prize money. It is a question of stopping a large portion of British trade, and thereby compelling Britain to sue for peace. Recollect that during a war with us the greater number of our enemies' merchant ships would be laid up, unable to earn money by carrying cargo. They would therefore be cheap. Secondly, it is not so much a question of escaping when once sighted by one of our fast cruisers, or of getting alongside of our best mail steamers, but of catching our tramps, or rather of frightening them off the sea; therefore a ship much slower than our cruisers, and only two or three knots faster than our tramps, might succeed in destroying numbers of our cargo boats before being herself caught by a cruiser. The food supply of Great Britain is chiefly carried by slow boats.
Then I come to costs in belligerents' courts. One of the many blots in the constitution of the International Court is that it cannot give costs in the national court of the belligerent. In our war with France the expenses incurred in our own Prize Courts frequently exceeded the value of the ship and cargo, so that an injured 860 neutral might still be heavily out of pocket even if an international judgment was given in his favour, from having to pay law costs in the Court from whose decision he had appealed. With regard to prize money, Article 31 of the Prize Bill appears to me to deserve more attention than it has yet received. By it no prize money is granted for the capture of an unarmed ship. This is a bit of patchwork. I should have thought that the production of a Naval Prize Bill would have been a suitable occasion for the issue of a complete scheme of new regulations for the distribution of prize money. One of the assertions made by some of those who wish property at sea to be more sacred than human life is that naval officers are opposed to the immunity of property afloat on the ground that they may lose prize money. Some of our Admirals have served thirty years, and have not touched one penny of prize money. I myself may perhaps be considered one of the lucky ones, as I made about £12 in about nineteen years' service. At present I do not think that the chances of prize money enter into the calculations of a naval officer's pecuniary prospects, whether made by himself or by the man whom he hopes to make his father-in-law. It appears to me most unfair that the officers and ship's company of a cruiser that effects the bloodless capture of a ship like the "Lusitania," carrying one or two guns only, should make fortunes, whereas the mangled survivors of a destroyer that has sunk a "Dreadnought" should get nothing. In the olden days there were perpetual quarrels between officers and complaints among the men about prize money. It would be advisable, before a war breaks out—before any captures are made to quarrel about—to issue a well-thought-out scheme for the distribution of prize money. In former days, and even at present, a large share goes to the captains of ships. The captain of a ship was, and I believe is still, solely responsible for a seizure, and may be cast in damages that may ruin him. If he is an impecunious bachelor, he may choose to run risks that a man who has £20,000 and a family to provide for would hesitate, to undertake. For these reasons a large share of prize money was allotted to the captain as compensation for the risk that he ran. But surely some better method than this can be discovered for dealing with the responsibility of seizures.
861 I do not wish to waste the time of the House by repeating the powerful arguments that have been adduced by other noble Lords. One of the chief faults of the Declaration and some of the Conventions is that they ignore geography. I consider that in time of war we shall be more likely to succeed and retain the friendship of neutrals if we make the question of what belligerent lights we claim a matter of geography and of the higher strategy, instead of relying on the interpretation of fixed rules. Look at Italy. It is a matter of vital importance to her that no mines should be sunk on the track of her transports, and that warlike stores should not reach the Arabs. Such rights as are necessary to ensure this she sticks to, others she waives as not essential to her success. She made war suddenly, so as to be able to proclaim a blockade before aims could be imported into Tripoli. As it was, she appears to have been a little late, as the "Derna" is said to have landed 10,000 stand of arms, which were distributed to the Arabs who have given so much trouble in the Oasis. But she does not enforce all her belligerent rights either in the Adriatic or in the Ægean Out of deference to other Powers she has refrained from raising and arming the Albanians, though by so doing she would have given the Turks an infinity of trouble. If the Declaration is ratified, each Power will in war make its own reservations and interpretations, and the Declaration as a whole will receive about the same amount of attention that was vouchsafed to the Hague Conferences in the cases of Bosnia, Morocco, and Tripoli.
As I have already said, one of the chief objections to the Naval Prize Bill is that when we are fighting in real earnest, with our daily bread at stake, we shall be obliged to disregard the Declaration and some of the Conventions, and that when we do so neutral Powers will consider that we are doing them a grievous wrong, and that we shall irritate them more than if, being bound by no Treaty, we only insist on the minimum of belligerent rights, leaving others unused, just as Italy is doing now. As regards the question of the interference of this House with a Treaty already made, it should be remembered that we are a democratic country and becoming still more so. In the United States the Cabinet and President cannot ratify Treaties without the consent of the Senate. In Canada something similar occurs. The more democratic the times 862 the more necessity there may be to have some check on the Treaty-making power which is now so entirely a matter of prerogative exercised by the Prime Minister.
§ LORD REAY
My Lords, with regard to the constitution of the International Prize Court, I may, perhaps, explain the position in which the British Delegates found themselves at the Hague in the year 1907 at the second Peace Conference. At such a Conference all Powers have the same voting power. The smallest State there has the same influence as one of the great Powers. The majority, therefore, at the Peace Conference was overwhelmingly composed of the smaller Powers, and when the constitution of this International Court came to be considered it was obvious that the claims of the smaller Powers could not be overlooked. I may also point out that the smaller Powers in many instances were the supporters of proposals made by the British delegates when they were opposed by the greater Powers. It is, therefore, against our interest to exclude representatives of the smaller Powers. Many of the smaller Powers have very distinguished international jurists whose services have been in great request in arbitration proceedings. Switzerland has been mentioned. Switzerland certainly is not a maritime country, but I am quite sure that the representative whom Switzerland will send to this International Court will be a man of high distinction and perfectly impartial. The same thing applies to Belgium. Then the South American Republics have been mentioned. Some of the most distinguished members of the Hague Conference came from, the South American Republics, and a very eminent representative of one of the great Powers at the Peace Conference expressed the opinion that the part played at the Conference by the South American Republics had been to him a revelation.
I can also inform the House that a number of proposals were made with regard to the constitution of this Court, but that the proposal which was ultimately adopted was the only one which met with the approval of the, Conference. Therefore you are in this position, that either you have to accept the Court as it is here proposed or you have to abandon the idea of establishing such a Court. There can be no doubt of the great advantage to us in securing an appeal from the foreign 863 belligerent's Prize Court to a Court mainly composed of neutrals and obtaining an interpretation of international law which will be binding on all the other Powers. It certainly is an immense advantage as regards the Declaration of London that we are sure that food can never be defined otherwise than as conditional contraband; and by the abolition of the doctrine of continuous voyage you have this further advantage, that food supplies in neutral merchantmen can reach without any difficulty harbours close to our own coasts, and that therefore the duty of the Navy in connection with those ships will be limited to the area between those neighbouring neutral harbours and our own coasts.
The Declaration certainly is favourable to neutrals, and when we are neutral our great mercantile fleet will enjoy all the protection the Declaration gives. With regard to blockade, the Declaration has adopted the British view, which hitherto was not accepted. Instead of a restricted line in front of a port we shall have an area of operations, which will be greatly to the advantage of our blockading fleet. As to converted merchantmen, it should not be forgotten that under the Convention the commander and the officers of the converted merchantman must be taken from the Navy of the country to which it belongs; therefore it will not have any attribute of a privateer, but will be assimilated to a man-of-war of the Power which converts. With regard to the destruction of neutral vessels, it should not be overlooked that our Fleet will have the same right of destroying neutral vessels which according to the Declaration will be given to other Powers with limitations which have been inserted in the Declaration, and which seem to me to be of great importance.
The Declaration is the, first step in the direction of the codification of international law. No doubt we have not obtained all that we wished to obtain, and we could not expect to obtain it. Neither could we expect, when we enter into a Conference of this kind, that other Powers will accept the interpretation of international law which our Courts have laid down. But I would urge on the House the great importance of not defeating this attempt, to come to air international understanding, and I would point out the deplorable effect which it will produce abroad if we at this hour refuse 864 to ratify the Declaration which we have invited the other Power? to elaborate, and which at the Imperial Conference has been accepted by the representatives of the Dominions with the exception of Australia. If this House incurs the great responsibility of preventing ratification of this Declaration, our representatives at International Conferences will find it more difficult to obtain the assent of other Powers to proposals made by them. To establish such a precedent seems to me to weaken cur influence as a great Power.
§ LORD SANDERSON
My Lords, I have felt reluctant to address your Lordships upon a question upon which so much has been said and written, and which does not seem to me to be very well adapted for examination in Parliamentary debate, but there are one or two points upon which it may be useful that I should say a few-words from personal experience. I shall confine myself strictly to the question, and shall endeavour to be brief. In the first place, as regards the composition of I the International Prize Court, about which; the noble Lord who has just spoken and previous speakers have said a good deal, I should like to mention that in the correspondence with the German Government which was laid before Parliament as to the seizure of German mail vessels in the South African war, Lord Salisbury quoted as a I convincing argument the opinion of the eminent German jurist Professor Blüntschli. When that Despatch was drafted there was some question as to how Professor Blüntschli should be described. He was really a Swiss and had been a member of the Swiss Government in revolutionary times; after the counter-revolution he retired to Munich and passed the rest of his life as a professor there and afterwards at Heidelberg. I need scarcely remind your Lordships that neither the Grand Duchy of Baden nor Bavaria is a maritime State, yet Professor Blüntschli's views on maritime international law are everywhere received with great respect. Then there is another publicist—Monsieur Calvo— whose treatise on international law is received with respect everywhere as a great authority on modern practice. Monsieur Calvo was an Argentine diplomatist, and I venture, to assure your Lordships that if you had to carry on a controversial correspondence with any of these minor States, it will not be any deficiency of legal knowledge or ability that you will 865 have discovered in the course of the controversy.
My Lords as regards other provisions of the Convention it would be better that some one with legal knowledge should defend them. But I notice that two noble Lords who have spoken to-night, however much they may have examined it, have not yet succeeded in finding that the Convention, in Article VIII, gives to the tribunal the right of awarding damages. I will turn to another point. It has been objected that this Convention will invalidate or destroy the right of neutrals to protest against improper action on the part of a belligerent and to use diplomatic pressure for its prevention. I have been quite unable to discover the foundation for that assertion. If you look at the correspondence to which I have already alluded on the subject of the seizure of German mail steamers, you will find that we answered the German Government by stating that the seizure of the "Bundes-rath" would be dealt with by the British Prize Court. But the objection made by Germany was that it should not go before a Prize Court at all, and if at that time the Declaration of London and the International Prize Court had both been in existence that contention would not have been in the least degree altered, but, on the contrary, strengthened. The German Government would have said, "' We do not consider that the matter ought to go to a Prize Court at all. We contend that by the proper interpretation of the Declaration of London the vessel is not liable to seizure; by Article 07 of that Declaration you are bound to give proper instructions to your naval officers, and you are bound to see that the Declaration is carried out, and we insist upon it that those instructions should be given." Therefore they would have had stronger grounds for their protest than they had, for I did not think their protest was absolutely well-founded at the time.
Then it is said, "Yes, neutrals may be able to protest; but the Declaration is vaguely worded." But however vague it may be, the present state of international law on these contested points is still vaguer and more unsatisfactory. I should like to give your Lordships an example. It has been made a reproach against the Government that they have not succeeded in getting any prohibition of 866 the commissioning of merchant vessels as ships of war on the high seas. From the language employed one would suppose that the British nation had been protesting against this vigorously and consistently, I will not say from the time of Noah's Ark because I do not want to exaggerate, but at all events from the time of the maritime Declaration of Paris abolishing privateering. What are the facts? The "Alabama" escaped from England and was commissioned and received her armament and crew either on the high seas or on the extreme verge of Portuguese territorial waters near the Azores. She went out and captured a large number of prizes, all of them United States vessels and she sank them with the exception of one which she commissioned on the high seas as a tender. Did we denounce her as a pirate? Did we say it was a resort to barbarism, or did we refuse her admission to our ports? Not at all. We received her and treated her as a ship of war, and after some hesitation we decided that her prize was to be received as a ship of war also; and when I was at Geneva during the "Alabama" Arbitration we were employed, under the direction of Sir Roundell Palmer, the first Lord Selborne in arguing for all we were worth that it was the only course we could take, and that we were bound to accept her as a properly commissioned vessel of war. The tribunal thought otherwise. The British representatives alone dissented. The rest of the tribunal held that we ought not to have received her into our ports, or given her the immunities of a ship of war when she had obtained that position by the breach of our neutrality. As we paid a million and a-half for the doctrine we had acted on, we have got a perfect right to alter it now, and no one, I think, can throw it in our teeth that we thought otherwise then.
But this is what I wanted to call your Lordships' attention to. We have two principal English text books on international law. One is the work of the late Mr. Hall, and is published by the Clarendon Press at Oxford. The other is a work by Professor Westlake, which has recently been published by the University Press at Cambridge. Mr. Hall expresses his opinion that the decision of the tribunal was unfortunate and wrong, and Professor Westlake says that there can be scarcely any doubt that the tribunal were perfectly right. In those circumstances I really do not know 867 how we are going to argue that there is any clear and definite rule on this point founded on international law, nor do I think we ourselves are in the best position for obtaining a confirmation of the doctrine that the commissioning of vessels on the high seas is to be universally condemned. I think that other Powers if we appeal to them may very well say, "It really does not matter to you, you have a huge Navy and ports all over the world, and if you want to commission merchant ships you can do it with the greatest ease; why should you expect that we who have not got these advantages should all unite together for your convenience in condemning the practice." It is quite possible these other nations may in time come to the conclusion that upon the whole it would be better for them also that the practice should be condemned, but I do not think that the argument comes extremely well from us.
Then, finally, my Lords, I should like to say something about the international position in which this country would be placed if the Government is prevented by this House from being a party to this arrangement. Then; can be no doubt whatever that we took a considerable part in proposing and advocating the Convention for the International Prize Court. Subsequently we ourselves came forward and invited the Conference to meet here to draw up a Code of Law by which that tribunal should be guided. According to the usual practice the senior British Plenipotentiary presided over the Conference, and the British Plenipotentiaries had the great advantage of being in direct communication with the Cabinet and with the expert advisers of the Government. Under those circumstances this arrangement was made and signed. Since then it has been accepted, and its ratification has been approved by the Imperial Conference, and it has been equally accepted by the House of Commons. It was eon-eluded under the sanction of one Board of Admiralty, and it has since been acquiesced in, as far as I know, by two other Boards of Admiralty. Under those circumstances if this House interferes to stop any further progress we shall be placed, it appears to me, before other countries in a very damaging and disadvantageous position. The discussion of the Declaration of London has done one thing, at all events. It has awakened the 868 country to the risks of a great naval war. But there seems to be a sort of impression that if we get rid of the Declaration we should get rid of this danger also. That is a delusion. The risks are there, they are the results of our circumstances, and they will remain.
But you cannot really get rid of the Declaration of London. You can refuse to be a party to it now, but the Declaration of London will still remain on record as what is really the foundation of international law, a general consensus of the Government represented. You can put yourselves in a position in which you will get no advantage from it. But you cannot put yourselves in a position in which you will get any support when it is urged against you. You may say, "This and that practice was, no doubt, sanctioned by the Declaration of London, but we have refused to ratify the Declaration of London." But other countries will reply, "After all it represents the general opinion, and we are not going to support the reverse." I cannot help feeling, my Lords—I do not wish to use a harsh term—that the Government might have adopted an attitude a little less arrogant towards the opposition that has been aroused in the country by the Declaration. It is in my opinion ill-informed, but it is genuine and deserves consideration. If the Government had come forward and invited some kind of discussion, I believe that much of this trouble might have been avoided. But I still cannot see that we shall gain anything by tying the hands of the Government and preventing them from taking part in an arrangement which is undoubtedly in many respects a step in advance.
§ LORD ALVERSTONE
My Lords, I am sure your Lordships will have heard with the greatest interest the speech of Lord Sanderson, who speaks with so much authority from his long connection with the Foreign Office, and one is extremely glad to think that in such matters he can assist your Lordships' House. I should not have intervened in this debate at all but for the pointed allusion made to me by the noble Earl opposite (Earl Beau-champ), who said, in moving the Second Reading of this Bill that I had made a statement with regard to international law with which he did not agree. It may be that the noble Earl is only stating his 869 own opinion on the matter, and I will endeavour to answer it with all the respect I can. But I think before he says that what I have said was not agreed with I am entitled to know whether he means agreed with by lawyers or experts in the matter, or only not agreed with as a matter of opinion; because I shall "venture to repeat again what I said on the last-occasion, and I will attempt, if I can, to justify what I said as bearing upon the question now before your Lordships' House.
I say again that when we are considering whether what we get under this Bill, speaking of the tribunal and the law to be administered by the tribunal, is to this country's advantage, we ought to consider what we are losing. I will try to repeat what I said on the last occasion. I cannot quote my words, but the noble Karl has them. This is wherein he differs from me, I understand. I said that the law of England has been respected and adopted, and has formed the foundation of international law in all the civilised countries of the world. I do not, of course, pretend to say I quote the words exactly, but that is what I said, and that is what I understand the noble Earl does not agree with. As I have said, if the noble Earl says I am wrong I should have been glad to argue it. If he states that he relies on somebody else, then I venture to say with full responsibility that I was absolutely right. The prize law of the civilised world has been built up by the Courts of this country, and subsequently followed by the Courts of America, particularly the United States, and as my noble and learned friend Lord Halsbury said to-night, the judgments of Lord Stowell and Dr. Lushington, and of all the distinguished Judges of Prize Courts, have been treated as forming the foundation of the principles of international law. When the noble Earl says somebody, I do not; know who, does not agree in that, I can only say I have read and studied both the works which Lord Sanderson referred to, and many others, over and over again, and works by German lawyers and lawyers of the United States, and many of the judgments which the great Chief Justice Marshall delivered in Prize Courts, and it will be found that the decisions to which Lord Halsbury has referred and the decisions to which I have referred, and the rest of these opinions, are treated by these writers as being the foundation of legal 870 principles in prize law. I am quite sure my noble and learned friend on the Woolsack will not dispute that for a moment.
§ THE LORD CHANCELLOR
Of course, everybody knows that English maritime law is the foundation of international prize law.
§ LORD ALVERSTONE
Quite so. I am not discussing, and I do not mean to discuss, any point I referred to on the last occasion. But I say we have got a system of jurisprudence in prize cases based upon 200 years of English decisions, followed by the Prize Courts in the United States and respected by all civilised nations. Now that is what we may be giving away. I think we are giving that up, but that is a matter, again, of opinion. What are we going to get for it? Here I come to the question which my noble and learned friend on the Woolsack did not deal with so fully as I should have liked. We are going to get a Court in which the British Judge is to have one voice out of fifteen. They an; all to be equal, and I quite believe, as Lord Sanderson has stated, that some of these nations will produce a very respectable, international lawyer, though he might only be a professor or one who had only studied international law from the book point of view. But, after all said and done, we have no recognition in this so-called Code—and with all deference to Lord Reay I do not think it can be called a Code—of any of the principles of international law as applied in prize cases to which respect has been given in our Courts. On the contrary, as I understand—I am not going to enter into this at length— there is applied some sort of rule of what the tribunal think to be just and right, and we are really abandoning—it may be the price is worth it—the only rights we have of having an adjudication in our own Courts. We are abandoning there the principles on which the cases have been decided.
I entirely agree with my noble and learned friend on the Woolsack that an appeal would be a matter of very great importance and value. I said on the last occasion when I spoke that I would sooner argue a point of international law—and I do not speak without experience in the matter—on the construction of some recognised and received Code than have to cite a number of authorities in order to 871 prove a principle first. It is clear that we are going to get something, but, at any rate, we ought to sec what we are going to lose, and personally I am not satisfied with leaving it absolutely at large to such a tribunal—a tribunal upon which, as I have said, the British feeling will be only represented by one-fifteenth. I agree with my noble and learned friend on the Woolsack that the actual number may be not excessive, and I think he is quite right in what he said as to the "Franconia," but still the quality of the tribunal is better than the quantity, and I should be more satisfied if I thought this tribunal would really represent, and be representative of, the opinion of lawyers of experience in international law. I do not myself like the hazardous position of the Court, and the absolute freedom with regard to previous existing authorities.
Nobody can have failed to be struck by the words of the able and eloquent speech of the noble and learned Earl on the Woolsack. I am not going to argue with him upon all the various questions which he raised. I said what I had to say on the last occasion, and I will not repeat it. I will only say that while I certainly agree with the noble and learned Earl on certain points, there are a good many other points that he did not think it necessary to touch upon. But when he says we ought not to refuse to pass this Bill at even the greatest cost because it is exactly following out what has been developed by this conference in London, I think he rather gives the go-by to the actual position. This is the only opportunity we have had of dealing with the provisions of the Bill, and it does seem to me that if some of us feel, either strongly or weakly, as the case may be, that the Bill is not to the advantage of the country, it is our duty to state our reasons and to put forward arguments, which can be answered or not, why we think the price we are receiving for what we are giving up is inadequate.
In that connection there is one matter which seems to me not to be quite sufficiently appreciated by either my noble friend or His Majesty's Government, and I hope His Majesty's Government will think it fair to give me some little information on the subject. We have never been told how many other nations, parties to this Convention, have ratified the Convention or Agreement, and I think before Great 872 Britain is asked to ratify we ought to know whether the other nations, great or small, are prepared to ratify it. We ought to know whether it is true, as the noble and learned Earl on the Woolsack said, that if we reject this Bill we are going to throw everything into chaos. It does seem to me that if our position is that we are really being asked to pull the chestnuts out of the fire, being the first great country to give effect to this, then other considerations may arise, I do not know what the United States will do. I have no idea, but it seems to me that those considerations are of some importance.
I will not detain your Lordships except to say a word on one other point. I am bound to say that I think the offer made by His Majesty's Government, if it had been incorporated in the Bill, would require to be carefully considered. I understood the Government were ready to give an undertaking that, they would not either enter into the Declaration or make any arrangement until they were satisfied on two points—one being the point with regard to how far the Report was going to be treated as part of the Convention. I must point out again that there were two or three matters in which the Convention was inconsistent, and therefore to treat it in that way would, not solve the difficulty. Then we are entitled to know what safeguard we have for an undertaking which, of course, will be honourably performed by the present Government; but when we are dealing with an Act of Parliament its influence will extend beyond the life of that Parliament. It seems to me that if that sort of suggestion is going to be made it should be embodied in the Bill and put in a shape so that we can judge of it; otherwise we are trusting the Executive, not knowing exactly what they mean, and only having a promise that they will not ratify until there has been an arrangement made with regard to the Report and an understanding as to the meaning of the word "base."
I am not going again, as I have said, to argue what I tried to point out on the last occasion as to the dangers that arise under the base clause, as I will call it of the Declaration. But I say this House should have an opportunity of judging of whether or not what is going to be agreed to would be satisfactory. I am quite aware that the noble and learned Earl on the Woolsack said that Parliament was to be satisfied, 873 but it does seem, to me that it is not asking too much that there should be a clause put in the Bill, and not a mere understanding which may give rise to discussions hereafter. That is all I have to say with regard to this question. I am most unwilling that any difficulty should be created by the refusal of this country to ratify. I said on the last occasion, and I repeat it that I fully recognise that it is a grave responsibility to render for the time being abortive the proceedings that have taken place. But when there are paramount interests at stake, when the security of the Empire and the continuance of the food supplies of this country may be seriously impaired, we ought not to hesitate to decline to give our consent, whatever the consequences may be.
§ LORD COURTNEY OF PENWITH
My Lords. I venture to intrude on your notice for a few moments in consequence of the remarks which have been just addressed to us with so much authority by the Lord Chief Justice, My noble and learned friend is very much concerned lest the great fabric of international law which has been established mainly on the foundations of the decisions of the English Courts should be treated as of no account, and we are going to start afresh in the evolution of law, leaving it to this new tribunal to declare what they think to be, the law on all points which may arise in disputes between nations. My Lords, I have not so understood the Declaration of London, nor the Report which accompanies that Declaration. According to what I understand the Report to be, the decisions of International Prize Courts in the future are to follow the received doctrines of international law. That is to say, they are to follow on the lines which have been laid down by our own great Judges, and which, as my noble and learned friend said, have been adopted by the Courts and the Governments of other nations. They are to follow upon these lines, and it is only where the doctrine is left obscure, it is only where it wants further development, it is only where it is in dispute—it is in these cases and in these cases only that the Court of Appeal is to decide what it thinks right in pursuance of what has been hitherto adopted and is in accordance with equity and justice.
Now if I am right in that contention, the concern of my noble and learned friend is misplaced. The great body of international law which we have inherited is kept. It is 874 in its development only that we allow for the action of the new Court of Appeal, and in that they will not have a free hand, because in that development they will be bound to pay respect to what has gone before. I do not wish to prolong this debate or repeat what I said before with respect to the Declaration of London and the interpretation of the terms therein, but I want to call particular attention to the point last laid down by the Lord Chief Justice. He said that if the offer made by the noble Earl, Lord Beauchamp and repeated by my noble and learned friend on the Woolsack, had been made beforehand, if it could be made binding, we might have passed the Bill, for a great deal of consideration was due to it, and much weight would have to be attributed to it. I hope I do not misinterpret my noble and learned friend. He attributed the utmost weight to the offer made by Earl Beauchamp and repeated by the Lord Chancellor being put in a formal binding fashion. It was made firm enough, he admitted, so far as the present. Executive went, and if it could be put in a formal and binding fashion which should bind not only them but possible successors, he said he might be of a different temper. If we could secure that interpretation, or, rather, agreement in interpretation, with the other Powers for which the Government looked and upon which alone they would ratify the Declaration of London, if we could make that secure, then it was said you should hesitate to refuse to pass the Second Reading of this Bill.
My Lords, I ask you this question. Does not the position taken up by my noble and learned friend the Lord Chief Justice point to this, that you should be allowed to read the Bill a second time and consider whether it is not possible in Committee to put in a provision reserving the ratification of the Treaty, or what comes to the same thing, reserving the Order in Council which shall give effect to the part of the Bill which is in controversy, until an agreement has been arrived at, which should be laid before Parliament and be accepted by both Houses, upon the disputed point of interpretation with which alone we are concerned? That is the point. The Government say they will not ratify until they can obtain that agreement and submit it to Parliament, Parliament being open to reject it, and then the regulation will not take place. My noble and learned friend the Lord Chief Justice says that is 875 not enough; it should be put into the Bill. Why should it not be put into the Bill? It is a difficult and delicate matter of draftsmanship. But do not decide that at this moment. Do not make it impossible, by refusing to read the Bill a second time, to have other opportunities of considering this. Assent to the Second Reading of the Bill, and then in a definite form in the Act of Parliament itself reserve the Order in Council which gives effect to this disputed part of the Bill until there is an agreement arrived at and submitted to Parliament and acquiesced in as regards the three matters which are in dispute.
We are all satisfied of this. It is a very grave matter to refuse to make possible at this moment the ratification of the Declaration of London. It is an international act; it is not a thing concerning only the present position of municipal law, but a matter concerning the progress of international law and the authority of international conventions and the respect to be given to agreements with other Powers. It is important that this should not come to naught if it can be preserved. I have pointed out to your Lordships the way by which, while regarding what has been said by the Lord Chief Justice, the thing may be preserved, and how you may, when reading this Bill a second time, secure its benefit and preserve that authority over the interpretation of the Declaration of London in the Act of Parliament itself which the Lord Chief Justice desiderates. By so doing you may preserve the Declaration of London from coming to a miserable end, an end which we should all deplore.
THE EARL OF DESART
My Lords, the Declaration of London has already on one occasion been fully discussed in your Lordships' House, and the only point for consideration, and the issue on the Bill on the Second Reading to-night, is the new International Prize Court. Naturally, therefore, many of the more weighty criticisms to-night have been directed to the constitution of that Court and the functions to be performed by it and it has been assumed, and probably quite rightly assumed, that, unless the creation of that Court is carried through the Declaration of London will probably not come into force. I know nothing of the intentions of the Government on this point, but I think it is probably assumed that the two 876 are interdependent. Now, my Lords, though I had personally nothing to do with the forming of the scheme for the creation of the International Court, I have naturally, in the course of my duties in connection with the Naval Conference which led to the preparation of the document known as the Declaration of London, had to consider its provisions over and over again, and having been so closely connected with all the proceedings I thought I should not allow this debate to close without saying one or two words to indicate the line on which some questions that have been the subject of controversy in the country and in this House and in another place should in my judgment proceed. I will indicate my view of the effect they really have, and whether they injure or improve our position. I have myself a very clear opinion on the point, but I do not propose to put my opinion in the way of advocacy, because I think in my position, especially on the issue before the House to-night, I should limit myself, so far as possible, to an explanation of the manner in which these things strike me and have struck me.
Before the Hague Conference and after it, and during the Naval Conferences and during the discussion which led to the Declaration of London. I have tried to consider every point that has arisen, not as a jurist purely. I have very little claim to be a jurist, and certainly none as a sailor; though I had the assistance of the most distinguished lawyers and sailors who were in constant touch with the Admiralty. But I have tried to see practically how under existing conditions things work, and I have endeavoured to form an opinion as to how they would work if the Declaration were ratified and in force. It is only from that point of view that I wish to put before your Lordships' House some considerations of the subjects which have been mainly the subject of controversy. I do not think I need detain you long, because, after all, they have been fully discussed. One knows where the points of objection are, and they can be brought together without much difficulty.
First of all much has been said to-night, and I feel some diffidence in adding anything to it, on the constitution of the International Prize Court. Now I suppose there is no real difference of opinion that 877 it is not the ideal Court, and not the Court one would have created if one had had a free hand; but, as my noble friend Lord Reay explained, at the Hague Conference it was impossible to have a free hand. You had representatives of all the Powers assembled there in conference to take part in it, and you were endeavouring to create an International Court which should be acceptable to all and accepted by all. You could not under those circumstances altogether exclude the smaller Powers; and on this point I may say that I think they have, a good case for being included. It must be borne in mind that this Court is a Court to operate between the belligerent and the neutral and not between the belligerent and the belligerent. As to belligerents inter se it has no effect. It is a Court merely between the belligerent and the neutral, and although many of these Powers are not naval Powers and some are not maritime Powers, there is hardly, I suppose, any Power in the world, however small, that has not an interest in the neutral carriage of goods by sea. I cannot imagine that there can be any controversy on that. Therefore, though their interests may be relatively small, you could not say they had no interests at all. Having regard to these I difficulties—it is not for me to praise or blame anybody about it—I think perhaps the outcome was nearly as good as yon could expect. You have always the eight Great Powers, and even if the Court sat with its full numbers, which I suppose would not very often happen, you would always have a majority of the Great Powers, and as the Court is the Judge between belligerents and neutrals, there is the advantage, if it be an advantage, that the Court must obviously have a large majority, in any particular case that will be tried, who will be neutrals.
My noble friend Lord Selborne, I was glad to hear, said at the beginning of his remarks that he had no objection in principle to the creation of an International Court of Appeal. But I think I am right—I hope he will correct me if I am not.—that at a later stage of his speech he gave as an argument against it the possibility of our decisions which we thought right being reversed by that Court, and that we might have to execute a judgment of the International Court opposed to our own views of law and justice. You must have, if you are to have any International 878 Court of Law at all, that liability as a consequence if the International Court is to be independent at all.
§ THE EARL OF SELBORNE
I only mentioned that in connection with the conversion of merchantmen on the high seas.
THE EARL OF DESART
I beg the noble Earl's pardon if I have added anything to what he said, but that was my impression. There is no doubt it has been used as an argument a great deal; and if you press that argument, how can you possibly at any future time have any International Court at all? Any independent Court may decide against you. Therefore on the whole I think the International Court is the best we could get at the Hague. I do not wish to prophesy, but it seems to me nearly as good as any Court we are likely to get, and if on its composition it is to be rejected I think the prospect of any Internationa! Court of Appeal will fade very far away.
I have assumed that it was advantageous that there should be such a Court, because I do think this—and I have tried to compare it with the system that now prevails—what concerns us, as neutrals, are the decisions of belligerent Courts and not the decisions of our own Courts. It was clearly illustrated in the last war how very greatly we may suffer under these decisions, and how very difficult it is to get any redress unless you are prepared, which is very seldom the case, to appeal to the arbitrament of force. I remember very well the noble Earl on the last occasion when this matter was before this House saying that I had rather overlooked the pressure that might be brought by neutrals to bear on a belligerent who acted in excess of what was right or proper, and arbitrarily. But I did not forget it, though I did not mention it. I think it is not really a thing you can rely on. I quite agree that it is necessary for belligerents, especially belligerents equally matched, to have regard to neutrals. It is a matter of degree; but I think it would be utterly unsafe to rely on the intervention of neutrals. In the first place, the injury to any particular neutral or to his trade is very seldom such as to lead him to risk the awful disturbance of war. In the second place, with two exceptions I think hardly any large carriers who would 879 be likely to have ships seized are Powers with great naval force behind them. In the third place, the danger of threats of war is that you bring on the field allies, known or unknown sometimes. If you once threaten war you do not know and cannot know where it is going to end, and no prudent Government lightly embarks on that. You make your protest; sometimes you succeed, and sometimes not; but as happened in the Russian war, if you do not succeed, it is generally wiser to cut your loss.
I think the object of both the International Prize Court and the Declaration of London was to produce equality, so that we could, without sacrificing any principles which were vital or were important to us, place ourselves on equal terms, as a matter | of maritime law, with our possible adversaries; and what I think and what I contend is that in substance we have done that. At the present moment we are under considerable disadvantage in many ways. I pay all deference to anything my noble and learned friend the Lord Chief Justice says, and if I criticise him I do it with great trepidation. I agree that the prize law of England has found its way into the text: books of nearly every country. Yon would find many jurists, though not all, who would say that is so; but we have to deal with things as they are. Not only did we find in the Russo-Japanese war that our principles were not applied, but when we invited the Powers coming to the Naval Conference to send in advance; their views on the subjects under discussion we found very serious divergences. Such were the rules they intended to apply in any wars in which they were engaged. That is the actual law we had to deal with. Those were the doctrines which they considered applied at that moment. The views were very divergent, and one object was to obtain something like equality.
The points are rather difficult to deal with separately because they overlap. I take first, for convenience, the subject of the destruction of neutral ships, and I think there has been a great deal of misconception on this point. It has been stated freely, certainly in public controversy in the newspapers and I think in Parliament, that our rule and our practice is that under no circumstances must a neutral ship be destroyed, but that in all circumstances she must, if 880 she cannot be brought into the Prize Court, be allowed to go free. Now, my Lords. I do not find that anywhere as being subject to no exception. I quite agree that at the Hague our delegates were instructed to contend for that, and indeed we at the Naval Conference were instructed to contend for that; and extremely difficult we found it, because it was quite clear not only that there was nothing to support it beyond the general proposition as to neutral ships which everybody agreed on but we found we had destroyed ships, and we found that Sir W. Scott had said this, that no doubt you ought not, as a matter of law, to destroy a neutral ship, but if the service of your country or its interests demand that you should destroy it, then in that case you must compensate the neutral. I have all the cases here, though I do not quote them; but that is the substance of them.
Now that is not the principle on which many foreign countries act, and we are always in this difficulty, that our Prize Courts and those of the United States are Courts manned by Judges who act quite independently of the Executive, and their decisions have to be accepted by the Executive. That is not the case with many foreign countries. Rules are made sometimes at the beginning of each war and they are approved as prize rules for that war, and they will be so administered. Therefore while our opponents lay down for themselves the conditions under which they would deal with neutral ships, we are bound by our Courts as to the principles on which we deal with neutral ships. That is a matter on which I think it was desirable to find the remedy of equal law administered in the same way by all Prize Courts, and, failing the proper administration of that law, some tribunal more independent than a belligerent Court to which we could appeal. In that view it was felt that, however broad the terms of law and equity and justice were in the Convention of the Hague, they were not sufficiently clear, and it was for that purpose that these rules in the Declaration of London were made, and it was hoped they would meet with acceptance. It has not altogether so turned out, but I think there has been a good deal of misconception.
I would point out, on the question of destruction, that if we are to put forward 881 our full contention that we can never destroy, we have the whole world against us. It is quite true that the United States and Japan expressed the pious wish that our proposal might be adopted. By the United States War Code of 1900, and in the Japanese Prize Rules of 1904 destruction is admissible, and, as I have already pointed out, I think we have no right to say that we do not admit it under conceivable and exceptional circumstances. Now the question is what are those circumstances to be. That is an extremely difficult thing to arrive at. We have had some experience of the views of Russia on that point. They destroyed altogether in the war six ships, of which four were British one Danish, and one Gorman. We got compensation in some cases, but not on the around of destruction, that was not admitted at all. There was no compensation whatever for destruction, and it was not even a matter to be dealt with in the Prize Court. I think it is extremely instructive in that connection, and it bears on that question to read a short extract from the judgment of the Russian Prize Court in the case of the "Knight Commander." This is on the question of destroying a vessel and of what is the liability. The Court said:The question of the regularity of sinking a vessel according to the exact interpretation of Article 5S of the laws relating to prizes is not one that is subject to the consideration of Prize Courts. Whether the extraordinary circumstances observe by the naval commander in the case, and which incited him to sink the vessel, were sufficient or not is a matter only for the superior officer and not for the Prize Court. The task of Prize Courts is to recognise a prize—namely, whether the capture is legal or illegal; or, in other words, to confirm the right, of capture or to refuse such confirmation.It is quite clear that no such rule would be recognised by our Courts. The whole matter would come before the Prize Court, and if Lord Stowell is followed we should have in all cases to pay the neutral.
Now, what does the Declaration of London do? We first obtained the acceptance of the general principle and it was admitted that a neutral should not be destroyed save in exceptional circumstances as a general principle, and we endeavoured to obtain some agreement as to the circumstances under which she might be destroyed. We did not get all we wanted, and it was not likely we should, but we did obtain this. They are not quite the words which Lord Selborne read—As an exception a neutral vessel which has been captured by a belligerent warship, and which 882 would be liable to condemnation, may be destroyed if the observance of Article 48 would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time.It is quite impossible that there should not be circumstances in which a neutral ship might have to be destroyed. There might be occasions on which a naval commander by not doing so would betray his country. I will give two instances, because I think they illustrate the idea and purport of these rules. I am putting extreme cases, I quite admit, but one is entitled to do that. Suppose an enemy's fleet was near at hand and a neutral ship loaded with things they required was about to pass, and there was an action imminent and no men to spare. If that ship was allowed to go on it would give the very things they wanted to the other side; therefore it is clear that that ship, if she could not be disposed of in any other way, must be sunk. The illustration on the other point I wish to put is a plan involving a surprise or raid. When you come to a neutral ship bound either to such a port as is to be attacked or to a place in its proximity, you could not let her go on, because your whole plan would be done for. You would have to keep her and provide for her crew, and, if you could not do that, you must dispose of her as best you could under the circumstances. In that case ought that ship to be, allowed to go on? The words of the Declaration are directly applicable to such cases and the ships may be destroyed. But these words might be abused. If they are abused, what is your remedy now?—the enemy's Prize Court. Whether the International Prize Court is ideally constituted or not, for purposes of that kind it is better that it should decide on the legitimacy of the act of destruction.
Then there is the other feature which I indicated in the earlier part of my observations. At any rate we should be on even terms with our opponents if the Declaration is ratified; but now they will destroy us and we shall get no compensation, whereas if we destroy them we shall always have to pay compensation. Then I may also point out that the deterrents are very considerable as regards payment of compensation. The provision is that you compensate in all cases unless you show to the International Prize Court that the destruction was justified. You do not inquire whether there was contraband 883 or anything else. The Court inquires whether the ship was liable to destruction, and if she was not you then get compensated. I do not think I need, having regard to the proposal made by the Government, deal at any length with the question of food supply. But I should like to say that I think neither the words "base" nor "enemy" nor any words to which exception has been taken could possibly, having regard to the provision as to conditional and absolute contraband and the obvious meaning of "base," be read as those who feel grave apprehensions on the subject have read them. I hold that opinion very strongly, but it is not necessary to go into detail on that. But I do say this, that it is a valuable thing to have got the admission that food under no circumstances is to be absolute, contraband, because I do not think it really can be disputed that there is now no general rule against it. We ourselves have really no definite general rule against it. Certainly France puts it definitely that she has not, and Russia has not, and Japan in the late war condemned food which there was no evidence was going to the enemy's forces. There is really no such general rule. I do not think anybody can prophesy what differences might arise. It is a question of degree and of circumstances. I was reading a book of Mr. Arthur Cohen's lately, in which he expressed in the warmest language his gratification at our being relieved of what he described as a very great peril.
I also think the Declaration may claim something from the free list. It covers nearly all the raw material we have, and as long as it is possible that they could be treated as contraband we are not certain as to what might happen, but this provision as to the free list gives them absolute certainty. On the provision as to continuous voyage I do not think I need say very much to your Lordships. That is not really an English principle at all, though I think it would probably be adopted as such if the case arose now. It is an American principle really, and I do not think there is any case in our Prize Courts in which it has been adopted. But as regards continuous voyage for conditional contraband it really is of no service, because if goods which are not ear-marked in any way for the service of war go to a neutral consignee and there is nothing to show they are going to the enemy or that they are going to be used for war, 884 there is no conceivable case in which you could ever stop them, and I do not think it was any sacrifice at all, and that it is technically and strictly accurate to state that what we have done is a gain as regards continuous voyage for absolute contraband.
I come to the question of the conversion of merchant ships at sea. There I think, on the whole, if there is a balance of opinion—and it is a very difficult question o—we stand to gain by the International Prize Court. I am sure I am right in saying that there is absolutely no proposition, either generally accepted or otherwise, that prohibits the conversion of merchant ships at sea. Conversion of merchant ships in national ports is accepted by all. The conversion of merchant ships in foreign ports or territorial waters is I rejected by all; it is only on the point of conversion at sea that this divergence or controversy arises. There is great difference of opinion about it, and so many take our view wholly or partially that I cling to the hope that if we take a step forward by a ratification of the Declaration in due process of time some agreement on this subject may also be found. I indulge the more in the hope because, on thinking the matter over very carefully. I doubt whether the advantage of conversion of merchant ships at sea would be commensurate with the loss which the converting power would inevitably sustain in the long run. This is really a conflict of interests. It is said "You are going to convert; there is no question of policy; but you want to make a rule by which you shall be the only nation who can convert, because you have ports all over the world, and we who have no ports are precluded from converting at all." It is a conflict of interests; and when in the absence of any rule of international law you find conflict of interests it is very difficult to see how, unless some other; factor comes in, you can obtain any measure of agreement.
There are two views. One is the view that as you have complete control by municipal law over your own ships, disciplinary and criminal, therefore in consequence you have a right to convert your ships anywhere, except where your jurisdiction conflicts with that of some other Power. On the other hand, it is stated that this is importing a new danger, and importing a thing that is quite inconsistent with the ideas of modern war, and importing 885 perils that neutrals ought not to undergo. It was all fully discussed at great length at the Hague but without much result, though the division of powers on this subject is very considerable. We had on our side the United States. Spain, and Japan; Russia, Germany, and France were on the other side, while Italy and Austria were also on the other side while endeavouring to find a qualification to mitigate the danger. Thus the great naval Powers are divided in opinion, and as nearly all the smaller Powers' interests would be neutrals, the probabilities would seem to be rather in favour of a decision for than against our view. But what would be really the risk we would run? As a matter of law it is that there should be a decision of the Court condemning a neutral that was so captured. Of course we must run that risk, and you would have to run it in the case of any Court you go to. At the present moment you are quite certain that such a ship would be condemned in the Courts that she would go to in the countries I have named. That is a certainty. But in the other way you have a chance. Therefore I do think that on the whole you would gain even in that respect by the International Court.
I want your Lordships to consider this. I have considered it a great deal, and I am very anxious about it. I do not think that the belligerent peril is a very serious one. If we have not sufficient cruisers we can convert at our ease in our own ports all over the world. You can have three or four ships to any one of any other of the Powers suitable for that purpose. We ought to know, and I am told we do know, practically every ship of other countries that is capable of conversion. I think we should know where those ships were, and we ought to be able to shadow them. They would have to take their coal in at neutral ports and they must coal up full at first. They would not have their ordinary cargo or passengers, and I think if that were the case, unless we were very ill-served at the neutral port where she was, we should call attention to Convention 18 providing that a neutral Government is bound to employ the means at its disposal to prevent the fitting out of a vessel which she has reason to believe cruises or is engaged in hostile, operations against a Power with which that Government is at peace. It is also bound to 886 display the same vigilance in order to | prevent the departure from its jurisdiction of any vessel destined for use in war. | I think on that representation the neutral Power would take the safer course and say they must make inquiries, and in order that the ship should be allowed to go it would be necessary for the other belligerent to say she was not intended to be converted, as otherwise they would be justified in detaining her, and by the time these negotiations were carried through we must be very ill-served if we have not taken precautions against that ship committing depredations. But we always have the fact that we can depend on our own Fleet, and that we must have enough cruisers to protect our trade. If we protect our trade we shall get our supplies of food and raw material; if we do not do so we shall not get them. I am quite certain we cannot be sufficiently supplied in neutral bottoms. It is 10 per cent., I think, now—it is not a large proportion— which is carried in neutrals. I know it is said that more will be carried in time of war, but I doubt it very much. I am not going to argue that at length, but I believe we should in fact have to carry more and not less in time of war in our own ships. We should never be able to depend on neutral bottoms to feed our population, and if we cannot protect our trade routes we could not carry on at all.
My Lords, I have spoken, I am afraid, a good deal longer than I intended to speak, but I wanted to explain these points as they struck me, and I do think that we have in this Declaration sacrificed no belligerent right, no belligerent power, that can legitimately be used by any Power that makes war. That I look upon as the most important thing of all. I do not think we have made any sacrifice. I do not at all think we have incurred any further risks by the provisions as to the dealing with neutrals; but anyhow, even accepting that criticism—which I do not accept—you must remember that you cannot have it both ways. If you take a belligerent right you must concede a belligerent right, and if you take an exemption you must concede an exemption. I, think so long as we have the command of the sea and can protect our trade against any reasonable combination that can be brought against us, the equality which I contend is obtained by this Declaration will be of value in avoiding disputes when we are 887 neutrals and in avoiding friction when we an; belligerents. So that in the one case we shall have a better chance of obtaining protection to our traders and ships, and in the other case we can carry on our belligerent operations more free from danger of friction with neutrals, which might in some circumstances enormously hamper us in the conducting of the war to a successful conclusion.
§ THE MARQUESS OF LANSDOWNE
My Lords, in a few minutes, so far as I am concerned, we shall, I presume, proceed to a Division, and I venture to express my earnest hope that every one of your Lordships before you decide how you will vote will be careful to consider the position in which this House now stands with regard to all Bills that come up from the House of Commons. Earlier in the evening the noble and learned Earl on the Woolsack took my noble friend Lord Selborne rather severely to task for the levity with which he was advising your Lordships to destroy this Bill. Sly Lords, we are not now in the position of being able to destroy any Bill. All that we can do is to delay for a while a Bill which in our opinion has not yet been adequately considered either by the whole community or by the classes whom it most affects; and I venture to think that when in the case of any particular Bill we are satisfied that further opportunities for consideration on the part of the public are desirable, it is not only our right but our duty to defer the passage of the measure. I will quote a high authority in support of that view. A pamphlet headed "Home Rule Notes" has lately been published, accompanied by a preface or message from the Prime Minister, and I find in that preface the following passage—It is of the essence of the Parliament Bill, both in its letter and spirit, that a Bill which becomes law under its operations must have commanded during three successive sessions the unswerving support of the House of Commons, depending directly in its turn upon a stable and consistent public opinion in the constituencies.In this case what are we to say of the unswerving support of the House of Commons? The normal majority which His Majesty's Government are able to marshal is somewhere about 120. On the Second Reading of this Bill that majority, and I believe it was a strictly Party vote, fell to 70, and on the Third Reading, the other night, it fell yet again to 47. That does not look as if feeling in the House of Commons 888 was very solid or unswerving on the subject.
Then, my Lords, is it true that public opinion is stable and consistent in regard to the merits of this measure. We know that the contrary is the case. It has been pointed out during the course of this debate that the whole of the Chambers of Commerce, and, I believe, virtually the whole of the shipping community are opposed to this Bill. It has been admitted that the opinion of naval authorities is much divided upon the subject, and my noble friend behind me reminded the House that although there had indeed been more or less ambiguous obiter dicta on the part of various naval officers of distinction, yet we have never been supplied with anything in the shape of an authoritative and considered opinion of the Board of Admiralty on this Bill. When I say that I do not suggest for a moment that the people of this country are not in favour of an International Prize Court, or of a reasonably conceived and carefully drafted Code of international law for that Court to administer. On the contrary, I believe that every one is dissatisfied with the state of things which now obtains with regard to these matters. The noble and learned Earl was good enough to appeal to me, and he asked me whether in my experience the present condition of affairs was not unsatisfactory. I answer unhesitatingly that it is most unsatisfactory, and I suppose no one passed more disagreeable quarters of an hour than I did when those cases of seizure during the. Russo-Japanese War to which reference has been made took place and we found ourselves powerless to come to the assistance of British shipowners whose vessels came under the jurisdiction I of the national Prize Courts of Russia. Therefore I for one am ready to co-operate heartily in an attempt to devise a suitable International Prize Court and to equip that Court with a suitable Code.
But, my Lords, the question we have to answer to-night is whether these two instruments—this Bill and the Declaration of London, which, I take it, will stand or fall by this Bill—do furnish us with a satisfactory Court, and with a satisfactory Code. I am one of those who believe that neither of those questions can be answered in the affirmative. The Court has been so fully described that I will not repeat the descriptions which have been given of it. It is, let us remember, anything but the 889 Court that we ourselves desired to obtain. We asked for a Court consisting of three members of the Hague Tribunal, associated with two Admirals. We have obtained a Court which to many of us seems what can only be described as a fantastic Court, unduly swollen in numbers, and one upon which this country is quite inadequately represented. It is a Court constituted, as many of us think, on an altogether wrong principle—the principle of representation of Powers rather than the principle of the selection of jurists of great eminence. I may say in passing that I derive no consolation from the Article which tells us that every member of the Court is to be a jurist of known proficiency in questions of maritime law, and of the highest moral reputation. I do not know what machinery is provided for eliminating jurists whose moral reputations may have some trifling scar or blemish.
Then this Court is to decide in private. Secrecy is to be maintained as to its deliberations. I will not dwell upon the facilities that gives for the kind of lobbying and conspiracy which is only too likely to occur when important international cases are under discussion. What seems to us worse than all is that this Court is not only to interpret international law, but is to make international law as it goes along, so that particularly in regard to the question undealt with in the Convention of the conversion of merchantmen at sea into cruisers, we are absolutely in the hands of the Court. It is under this Court that we are asked to place the rights of all British subjects, it is to this Court that there is to be an appeal against our own Courts of Law and against our own Courts of Appeal. Can we be surprised that this proposal should be regarded with the gravest suspicion by a number of our fellow-countrymen After all, what you want in a ease of this kind is surely a Court which will inspire confidence in the minds of those who are to appear before it. What confidence is this Court likely to command?
Then may I pass for one moment from the Court to the Code which it is to administer. This is a vital matter to this country. I take, in the first place, the question of foodstuffs. I believe it is the case that in this country before the harvest we have available about six and a-half weeks' supply of wheat; after the harvest, it rises to something like seventeen and a-half 890 weeks' supply. The question of foodstuffs may therefore be a matter of life and death to this country. What were the Foreign Secretary's instructions to Sir Edward Fry when he was sent as our Plenipotentiary to the Hague? He was told that it was our desire to keep in the free list foodstuffs destined for places other than beleaguered fortresses, and raw materials required for peaceful industries. That was our aspiration. We failed absolutely to get what we wanted, and we find ourselves entangled in the meshes of Articles 33 and 34 of the Declaration. What, as the Foreign Secretary very rightfully announced, we most desired was certainty in these matters. I maintain that under those two Articles we not only have not got certainty but we have uncertainty of the most perilous description. There is no certainty, there can be no certainty, under these Articles either as to the person to whom, or the port to which, foodstuffs can safely be consigned in time of war. I took note, and I am sure all the House did, of the overture which was made to us by the noble Earl opposite and repeated by my noble and learned friend on the Woolsack. I understand that what was suggested was that His Majesty's Government should undertake that Part III of this Bill should not become operative without an Order in Council, and that no Order of the kind given in Council should issue until the other Powers had accepted our definition of the ambiguous words in those two Articles—the words "enemy," "fortified place" and "base." I welcome that proposal. I think as far as it goes it is a very excellent one. I welcome it also for this reason, that the fact that that proposal is made to us now at the eleventh hour shows that some of us were not altogether unreasonable when we insisted that the original proposals made to us were not quite satisfactory. And we are encouraged by this excellent concession to hope that with a little more insistence on our part other concessions of the same kind may yet be obtained. I do not know, and it would be interesting if the noble Earl would tell us, whether the other Powers have yet been sounded with regard to this particular suggestion, or whether it is merely one made on the responsibility of Ministers.
But excellent as this proposal is, may I be allowed to point out that it leaves untouched our objections on the one hand to the constitution of the new Court, and 891 on the other hand to several of those points in the Declaration of London which seem to us most open to criticism. I am not at this period of the evening going to review these points at length, but let me say a word, first as to the sinking of neutral prizes. Here again the doctrine of the British Foreign Office has been clearly laid down for us. Here is what is said on the subject in the Instructions to Sir Edward Fry—Great Britain has always maintained that the right to destroy is confined to enemy vessels only, and this view is favoured by other Powers. Concerning the right to destroy captured neutral vessels the view hitherto taken by the greater naval Powers has been that in the event of its being impossible to bring in a vessel for adjudication she must be released. You should urge the maintenance of the doctrine upon this subject which British Prize Courts have for at least 200 years held to be the law.That immemorial practice of the British Prize Courts is therefore to be thrown overboard, and apparently we are to be grateful if matters are not worse. Article 49 of the Declaration expressly abandons the old practice which we have constantly maintained. And pray, let us not forget also that it is in the first instance the officer in command of the captor vessel who determines whether the conditions of Article 49 are fulfilled or not. How is the captain of a cruiser to know whether the trader to whom the goods are consigned does business with the enemy or not? How is he to know whether the port to which the vessel is bound is a base of operations or not? If the place is one of importance it is sure to be fortified. If it is not one of importance, is there any means by which the cargo of the ship can be earmarked as destined solely for the use of the civil population? When it is left to the captain of the ship to say whether by taking his prize into port he will endanger the safety of his own vessel or interfere with the success of his own operations you may be pretty sure that if he is a spirited officer he will decide the question for himself and send the prize to the bottom. This regulation seems specially disadvantageous to us, because whereas we have ports in all parts of the world and could therefore without difficulty take our prizes to them, other countries which have not the same facilities will be able to argue, and argue with a certain amount of plausibility, that, having no port nearer than, say, 1,000 miles, they are bound to destroy their prizes.
892 I referred a moment ago to the conversion of merchant vessels. That is a matter with regard to which our great commercial interests are naturally much alarmed. There can be no doubt that one of these converted merchantmen, converted perhaps after she has been enjoying the hospitality of a British port, might paralyse our commerce over a great part of the high seas. I shall be told that upon this point success was unattainable. I dare say it was, but the point is distinctly a bad one for us, and so long as it remains in its present condition noble Lords opposite must not be surprised if many people look askance upon the regulation which deals with it.
I say, therefore, that we cannot be surprised at the amount of suspicion and mistrust with which both the Bill and the Declaration so closely connected with it are regarded by the people of this country. Even His Majesty's Government are not prepared to ratify the Declaration as it stands, and are prepared to play what I suppose may be described as a waiting game. The noble and learned Earl told us that these matters required to be sifted. That is exactly our view. Further, let me assure him that nothing is further from our thoughts than to go out of our way to inflict humiliation upon His Majesty's Government—
§ THE MARQUESS OF LANSDOWNE
And, a fortiori, upon our own country. I fail altogether to see that there is any humiliation involved in the statement of the simple fact than many of these provisions seem to those who are most concerned in them to require further consideration and discussion. The Powers are apparently, if we may infer it from what has been said by the noble Earl, ready to meet us at one point at all events. Why should it be impossible for them to meet us at other points also? We hope, on the contrary, that our action, so far from discrediting the Executive, may strengthen the hands of the Executive and enable them to renew these negotiations with a better prospect of success. And let me say again that, so far from this being, as the noble and learned Earl seemed to suppose, a mere manŒuvre instigated by certain enterprising journalists, there is really in the minds of a great many sober and thoughtful people a feeling that the change which would be brought about by the passage of this Bill and the ratification of 893 the Declaration would be a change for the worse, and that it ought certainly not to be made without that further consideration which my noble friend behind me desires to obtain" for it.
§ On Question, whether the word ("now") shall stand part of the Motion?
§ Their Lordships divided: Contents, 53; Not-contents, 145.895
|Loreburn, E. (L. Chancellor.)||Ashby St. Ledgers, L.||Loch, L.|
|Morley of Blackburn, V. (L. President.)||Ashton of Hyde, L.||Lucas, L.|
|Blyth, L.||MacDonnell, L.|
|Carrington, E. (L. Privy Seal.)||Charnwood, L.||Marchamley, L.|
|Colebrooke, L.||Mendip, L. (V. Clifden.)|
|Coleridge, L.||Pentland, L.|
|Northampton, M.||Courtney of Penwith, L.||Pirrie, L.|
|Cowdray, L.||Reay, L.|
|Chesterfield, E. (L. Steward.)||Desart, L. (E. Desart.)||Ritchie of Dundee, L.|
|Beauchamp, E.||Devonport, L.||Kotherham, L.|
|Brassey, E.||Emmott, L.||St. Davids, L.|
|Craven, E.||Eversley, L.||Sanderson, L.|
|Liverpool, E. [Teller.]||Furness, L.||Sandhurst, L.|
|Onslow, E.||Glantawe, L.||Shaw, L.|
|Glenconner, L.||Southwark, L.|
|Gorell, L.||Swaythling, L..|
|Allendale, V.||Granard, L. (E. Granard.)||Weardale, L.|
|Esher, V.||Haversbam, L.||Welby, L.|
|Haldane, V.||Hemphill, L.||Willingdon, L.|
|Selby, V.||Herschell, L. [Teller.]|
|Bedford, D.||Morton, E.||Carew, L.|
|Devonshire, D. [Teller.]||Northesk, E.||Chaworth, L. (E. Meath.)|
|Northumberland, D.||Portsmouth, E.||Cheylesmore, L.|
|Rutland, D.||Powis, E.||Churston, L.|
|Somerset, D.||Rosslyn, E.||Clanwilliam, L. (E. Clanwilliam.)|
|Wellington, D.||Rothes, E.||Clements, L. (E. Leitrim.)|
|Sandwich, E.||Clinton, L.|
|Abercorn, M. (D. Abercorn.)||Selborne, E.||Colchester, L.|
|Ailesbury, M.||Shrewsbury, E.||Crawshaw, L.|
|Ailsa, M.||Stanhope, E.||Crofton, L.|
|Bath, M.||Stradbroke, E.||Dawnay, L. (V. Downe.)|
|Bristol, M.||Verulam, E.||Desborough, L.|
|Camden, M.||Waldegrave, E. [Teller.]||Digby, L.|
|Cholmondeley, M.||Wharncliffe, E.||Dunmore, L. (E. Dunmore.)|
|Exeter, M.||Ellenborough, L.|
|Lansdowne, M.||Birdport, V.||Elphinstone, L.|
|Chilston, V.||Estcourt, L.|
|Amherst, E.||Churchill, V.||Faber, L.|
|Ancaster, E.||Colville of Culross, V.||Farnham, L.|
|Camperdown, E.||Elibank, V.||Fanquhar, L.|
|Clarendon, E.||Falkland, V.||Forester, L.|
|Cottenham, E.||Falmouth, V.||Gage, L. [V. Gage.)|
|Coventry, E.||Goschen, V.||Grenfell, L.|
|Curzon of Kedleston, E.||Hampden, V.||Greville, L.|
|Dartmouth, E.||Hood, V.||Gwydyr, L.|
|Denbigh, E.||Hatchinson, V. (E. Donoughmore.)||Hindlip, L.|
|Devon, E.||Hothfield, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Llandaff, V.||Hylton, L.|
|St. Vincent, V.||Kenyon, L.|
|Dundonald, E.||Templetown, V.||Kesteven, L.|
|Eldon, E.||Kilmarnock, L. (E. Erroll.)|
|Essex, E.||Abinger, L.||Kintore, L. (E. Kintore.)|
|Fitzwilliam, E.||Addington, L.||Knaresborough, L.|
|Haddington, E.||Aldenham, L.||Lamington, L.|
|Halsbury, E.||Alverstone, L.||Lawrence, L.|
|Hardwicke, E.||Atkinson, L.||Leith of Fyvie, L.|
|Ilchester, E.||Bagot, L.||Ludlow, L.|
|Leven and Melville, E.||Barrymore, L.||Lurgan, L.|
|Lonsdale, E.||Belhaven and Stenton, L.||Meldrum, L. (M. Huntly.)|
|Lovelace, E.||Blythswood, L.||Meredyth, L. (L. Athlumney.)|
|Malmesbnry, E.||Bolton, L.||Monckton, L. (V. Galway.)|
|Morley, E.||Brodrick, L. (V. Midleton.)||Montagu of Beaulieu, L.|
|Newton, L.||St. Audries, L.||Stewart of Garlies, L. (E. Galloway.)|
|North, L.||St. Oswald, L.|
|Northcliffe, L.||Saltoun, L.||Stuart of Castle Stuart, L. (E. Moray.)|
|O'Hagan, L.||Sandys, L.|
|Penrhyn, L.||Savile, L.||Sudeley, L.|
|Ranfurly, L. (E. Ranfurly.)||Shute, L. (V. Barrington.)||Tennyson, L.|
|Rathdonnell, L.||Silchester, L. (E. Longford.)||Teynham, L.|
|Revelstoke, L,.||Sinclair, L.||Vivian, L.|
|Rothschild, L.||Somerhill, L. (M. Clanriearde.)||Wynford, L.|
§ Resolved in the negative, and Bill to be read 2a this day three months.