§ THE EARL OF SELBORNE
My Lords, I rise to ask the Lord President of the Council whether he will lay on the Table of the House Papers showing the view of the Board of Admiralty on the effect which the establishment of an International Prize Court of Appeal and the Declaration of London would have on the conduct of a naval war by this country.
§ THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT MORLEY OF BLACKBURN)
My Lords, in reply to the noble Earl, I have to say that the opinions expressed by the Admiralty on this subject are not in a form in which their publication would be in the public interest. It would not be desirable—I think the noble Earl will agree with me—to make public any views as to the effect of the provisions of the Declaration of London on the conduct of naval operations. To do that would be equivalent to informing a. possible enemy of the manner in which the Admiralty might intend to use the powers of blockade or other means of attacking an enemy's commerce. In general terms I play say that the opinion of the Admiralty is that, in existing circumstances, the effect of the establishment of an International Court of Appeal and of the Declaration of London on this country as a belligerent in the conduct of naval operations would be small and inconsiderable.
§ *LORD DESBOROUGH rose to call attention to the Declaration of London, and to move for Papers. The noble Lord said: My Lords, I rise to call your Lordships' attention to a matter of the most vital importance to this country—namely, the new rules of naval warfare which have been drawn up under the Declaration of London. They affect us primarily as the dwellers in these Islands in a particular manner, but they affect the whole of our Dominions beyond the seas in a manner almost as vital. The Declaration of London has been considered, and adversely reported upon, by a large number of Chambers of Commerce, approaching thirty in number, and ten Shipping Associations, including the Chamber of Shipping of the United Kingdom, which is the representative Chamber of the Kingdom, besides Shipping Assurance and other bodies. The Colonies have vehemently protested their right to be heard, and Australasia has the 326 question down to be debated at the Colonial Conference. There is a widespread feeling of alarm in business, commercial, and shipping centres; but the replies where they have been given to the representatives of these bodies by the Foreign Office have been on the whole to the effect that those who made them did not understand the present state of the Law of Nations on the subject or what alterations the Declaration made in it. Well, my Lords, this must be due to some inherent vice in Chambers of Commerce and other such bodies, because not only have they tried their best to understand them, but in many instances have called into their counsels men of acknowledged repute in matters of International Law before they made their protests. I sincerely hope that they may now be enlightened on the many points which trouble them. It is a matter which the trader, the commercial man, the shipowner, the underwriter must clearly understand as it affects him so closely.
§ The Declaration of London is the direct outcome of the second Peace Conference, which met at the Hague on June 15, 1907, when forty-five States were represented by 156 delegates. At this Conference fourteen documents were passed, of which Great Britain has signed thirteen and ratified nine. The one not signed was the Convention setting up the International Prize Court. The Resolution proposing the establishment of this International Prize Court was moved by Baron Marschall von Bieberstein on behalf of the German Government, and its object was to create an international Jurisdiction to discuss the legality of captures in maritime war. This would be a High Court of Justice sitting as a Court of Appeal, while National Tribunals would deliberate in the first instance. This new Court of Appeal would practically supersede the British Prize Courts, which have always held such a high place in the estimation of nations for their independence, integrity, and justice, as, indeed, may be said for the other great maritime nations. It is to consist of fifteen Judges, nine to form a quorum: the Judges appointed by Germany, the United States of America, Austria-Hungary, France, Great Britain, Italy, Japan and Russia are always to be summoned, and Judges and Deputy Judges are to be appointed by Argentina, Columbia, Turkey, Paraguay, Bolivia, Roumania, 327 Persia, Panama, Costa Rica, Haiti, Guatemala, Brazil, China, Bulgaria, Montenegro, Nicaragua, Cuba, Honduras, Ecuador, Switzerland, Luxembourg and other maritime countries.
Although the Convention set up the Prize Court as mentioned, the rules according to which it was to decide were left very vague. In the Report it says—
The new International Prize Court is called upon to make the law, and to take into account other principles than those to which are submitted the National Prize Court Jurisdiction, whose decision is attacked before the International Court.
The new Court was, in fact, to make the law, and the law was to be founded on some new and undefined principles. The Report also says—
How is nationality, property, or domicile to be proved? Is it only by the ships papers or equally by other document produced? We intend to leave the Court full power of appreciation.
Every liberty is to be left to the Court as to the appreciation of the various elements furnished to it to determine the conclusion. There is not here a legal system of proofs.
It was felt, however, on further consideration that a Court of this character could hardly be set up over the National Prize Courts of the various countries without some much more definite rules to guide them, and so, on February 27, 1908, a circular-letter was addressed to His Majesty's representatives at Berlin, Madrid, Paris. Rome, St. Petersburg, Tokyo, Vienna, Washington, and subsequently the Hague, proposing that a Conference should be held in London to determine what the new laws for the International Prize Court should be; and this Conference resulted in the Declaration of London which we are now considering.
§ I am far from wishing to decry or run down any attempts to settle international disputes by arbitration, or even to establish such Courts as an International Prize Court, but the Court must be competent and the rules should be fair. It must also be remembered that the International Prize Court and its rules are not in any sense designed for preventing war and all its horrors, as they only come into effect after war has unfortunately broken out, and practically form the rules and regulations under which that war is to be conducted. It is from this point of 328 view that I propose shortly to consider the provisions of the Declaration of London, and to formulate certain questions which I trust will be met in a manner calculated to remove the apprehension which undoubtedly exists. The importance of the whole subject as regards this country, dependent as it is on the sea for its food and its commerce, cannot be exaggerated. It concerns not only these islands but all our Dominions beyond the seas. The provisions of this Declaration affect our national and Imperial existence in the most vital manner. I believe it is the most important question before the country at the present time.
§ Now, my Lords, to proceed to the Declaration of London, which appears to me to be more important than the International Prize Court, important as that is. The International Prize Court does not come into operation till after the National' Prize Courts have adjudicated, and then only affects the individual who claims that his property has been wrongfully seized or destroyed. The harm to the nation will have been done; the individual owner of the ship and cargo may eventually receive compensation, but it is a question even then whether it will be worth his while to claim it. He will be appealing against the decision of a National Prize Court; at the International Prize Court he will be fighting a nation. He will have to engage counsel in a language to he determined by that International Prize Court; he will have to face a very large expenditure, perhaps even the expenses of a Commission of Inquiry; he can only, if successful, get the bare value of what he has lost, and from this various deductions are apparently to be made. It is doubtful whet her this appeal will be worth his while; it probably will not unless enormous sums are at stake.
But, as it appears to me this is not the important question. The important question is the establishment of these new rules contained in this document, the Declaration of London, which embody the new conditions of naval warfare. These do matter, and they matter most of all to us, because we depend on sea commerce for our national existence. There are certain points on which I hope we shall get definite information from His Majesty's Government—as the commercial and mercantile community is in great doubt about them, and these
doubts have not yet been removed—before we come to the Declaration itself. The first of these is whether the Declaration is considered to be binding on the signatory Powers whether the International Prize Court is set up or not. The preliminary provision of the Declaration states—
The signatory Powers are agreed that the rules contained in the following chapters correspond in substance with the generally recognised principles of International Law.
That is a very definite statement to be committed to, and it is further enforced by Article 66, which says—
The signatory Powers undertake to insure the mutual observance of the rules contained in the present Declaration in any war in which all the belligerents are parties thereto. They will, therefore, issue the necessary instructions to their authorities and to their armed forces, and will take such measures as may be required in order to insure that it will be applied by their Courts, and more particularly by their Prize Courts.
The meaning of this seems pretty plain—namely, that if this Declaration is ratified we in these Islands, and our Colonies who have not as yet been consulted, are definitely committed to all the provisions of the Declaration, which it is stated are to be taken as a whole. I know that great authorities take a different view. For instance, Mr. Gibson Bowles, one of the few people in this country who have mastered the 2,000 pages of the French Blue Book relating to this matter, takes the view that the establishment of the Prize Court is the King Pin of the situation, and that if the Prize Court is not set up the Declaration falls to the ground. I hope that His Majesty's Government will make this point quite clear.
There is another question I should like to ask before briefly discussing a few points of the Declaration, and it is one on which there has been a good deal of controversy among international lawyers in the public Press. It is this: Is the Report of Mr. Renault, which is a running commentary on each Article of the Declaration, to be taken as authoritative? From some points of view it seems to make the Declaration better; from other points of view it seems to make it worse; while yet, again, from others it seems difficult to reconcile it with the Declaration at all. The Secretary of State for Foreign Affairs has stated that—
The International Prize Court, if set up, will be bound to construe the text in conformity with the terms of the Report.
Sir Thomas Barclay, at the Summer Conference of the International Law Association, said—
I have never heard of any such suggestion being made by a practical lawyer";
and Professor Holland has stated that—
Such a Report as that which accompanies the Declaration of London has no claim to the sort of interpretative authority which has been attributed to it, nor is it desirable that the requisite steps should be taken to give it that authority. It would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a Treaty by tacking on to it an equally authoritative reasoned commentary.
And he goes on to say—
The fact is that the vitally important questions of theory and practice raised by the Convention and Declaration need calmer and better instructed discussion than they have yet received. Ought they not to be referred to a Royal Commission, on which should be placed representatives of the Navy arid merchant service, of the corn trade, and of the Colonies, together with international lawyers, in touch with the views of their Continental colleagues?
Be that as it may, it is absolutely impossible to gauge the effects of this new Declaration unless one knows whether the Report in the shape of a running commentary by M. Renault is authoritative or not; and, if it is authoritative, perhaps the suggestion of Professor Westlake, Mr. Cohen, and others, that it should be ratified by all the Powers concerned, should be carried out. A categorical answer from the Government on this point appears to be absolutely necessary.
§ As regards the Declaration itself, I propose to confine my remarks to three main points raised by the various Chambers of Commerce in their protests to the Foreign Office. These protests have been answered at some length by the Foreign Office, which has taken up the view that the Chambers did not understand international law or the Law of Nations as now very generally interpreted, and also that they had misconceived the alterations introduced into that generally accepted law by this new Code. That, of course, may be so, and I only hope that this discussion may do something to clear away these misconceptions. In these Islands we cannot afford to have misconceptions on sea, laws which affect our national existence. The merchants, traders, shipowners, corndealers, and underwriters, nay even the people at large, must understand. These matters affect the business man; 331 they are not religious mysteries, or murmured incantations of priests behind a veil. The Declaration, when ratified, is to hold good for twelve years; none of the signatory Powers can denounce it within that time. I am no enemy of International Agreements, of Arbitration Courts, or of proposals for limiting armaments, and I am as alive to the horrors of war as any member of this Chamber; but International Agreements should be fair and not one-sided, otherwise they may provoke the very war which all the friends of peace wish to avoid. This Declaration and the International Prize Court have nothing to do with peace; they only take effect when war has actually broken out.
§ My Lords, the Declaration of London is divided into nine chapters, and concludes with some final provisions; there are seventy-one Articles altogether. The chapters dealing with blockade in time of war, with unneutral service, with the transfer of the neutral flag, enemy character, convoy, resistance to search, and compensation, I propose to leave to others who are more capable of pointing out where they are injurious, if they are injurious, to the interests of this country. I shall confine my criticisms to three main points—first, the effect of the Declaration in exposing to capture or deliberate destruction of food supplies borne to this country in time of war in neutral vessels; secondly, the admission of the principle of destruction of neutral prizes; and, thirdly, the absence of any provision in the Declaration for preventing the conversion of merchant vessels into commerce destroyers on the high seas.
§ As regards the first point, the question of food supplies, it should be observed that there are three divisions of articles made by the Declaration. The first is absolute contraband, the second conditional contraband, and the third the free list. Articles exclusively used for war are absolute contraband. The free list contains articles which may not be declared contraband of war, and which, with the notable exception of cotton and hemp, never have been declared contraband of war. But what concerns us most is the list of articles susceptible of use in war as well as for purposes of peace, which may, without notice, be treated as contraband of war under the name of "conditional contra- 332 band." The list of conditional contraband is given in Article 24 of the Declaration, and is as follows—(1) foodstuffs; (2) forage and grain suitable for feeding animals; (3) clothing, fabrics for clothing, and boots and shoes suitable for use in war; (4) gold and silver in coin or bullion and paper money; (5) vehicles of all kinds available for use in war, and their component parts; (6) vessels, craft and boats of all kinds, floating docks, parts of docks and their component parts; (7) railway material both fixed and rolling stock, and material for telegraphs, wireless telegraphs, and telephones;(8) balloons and flying machines, and their distinctive component parts, together with accessories and articles recognisable as intended for use in connection with balloons and flying machines; (9) fuel, lubricants; (10) powder and explosives not specially prepared for use in war; (11) barbed wire and implements for fixing and cutting the same; (12) horseshoes and shoeing materials; (13) harness and saddlery; (14) field glasses, telescopes, chronometers, and all kinds of nautical instruments. This list can, under Article 25, be added to by a declaration.
§ My Lords, this list is a comprehensive one, but I suppose the first article—foodstuffs—is to us living in Islands which import food at the appalling rate of £484 a minute is the most important, and we must see what the Declaration has to say on the subject of the importation of conditional contraband. Under Article 34 of the Declaration neutral ships are liable to, capture, and under certain circumstances, to destruction if the goods are consigned to enemy authorities, or to a contractor established in the enemy country, who as a matter of common knowledge supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place "serving as a base for the armed forces of the enemy." This Article sets forth where neutral ships may not convey conditional contraband to. It is the most disputed Article in the Declaration as regards its precise meaning. "Enemy authorities," "contractor," "place serving as a base for the armed forces of the enemy," require the most careful definition. It has been frequently pointed out that "contractor" is a very limited translation of the authentic word, which is commercant, or trader, and I 333 suppose there are few great traders in this country who are absolutely free from the imputation of supplying the authorities with articles of conditional contraband. "Enemy" is also ambiguous in this Article. But the sentence which has caused the most, alarm is "other place serving as a base for the armed forces of the enemy." These Islands are small, and there is no port suitable for the reception of grain ships which could not serve as a base for our armed forces, or winch, as a matter of fact, does not do so. The commentary, or report, of M. Renault, whether authoritative or not, seems to make the matter worse. He says it may be a fortified place belonging to the enemy, or a place used as a base whether of operations "or of supply," for the armed forces of the enemy. This seems to adopt the German view, for Articles 34, 35, and 49 are taken almost in their entirety from the German report laid before the London Conference.
§ The Chambers of Commerce and others representing the trading and shipping interests of this country are much alarmed by these Articles. It appears to them that foodstuffs and other articles of conditional contraband would, when shipped to any port in the United Kingdom, be liable to capture, and under Article 49 the neutral vessels carrying them would be liable to be sunk. They would be grateful if the Government would name any ports in this country which they consider at the present time as above suspicion—any ports to which, if this country were at war, neutral vessels could convey foodstuffs and the other articles of conditional contraband. The Chamber of Commerce of Glasgow asked tile Foreign Office whether Glasgow would be considered a free port, but the answer, put shortly, was that the question would have to be decided by the International Prize Court sitting at the Hague probably long after the war was over. The same uncertainty would also exist when this country was a neutral. I am not sure indeed, that under Article 34 it would not be the duty of a hostile commander to capture any neutral vessels conveying conditional contraband to any port in this country. The best and safest manner to wage warfare on this country is to cut off her supplies, especially of food, and the sinking of neutral vessels carrying foodstuffs to this country would inevitably cause a serious rise in prices of food and freight and probably create a panic. And, 334 indeed, he would run no great risks in comparison with the objects to be secured. The owner of the cargo and ship would have the onus put upon him of proving before the International Prize Court that the port for which he was destined could not serve as a basis of supply for the armed forces of the enemy, and a negative is very difficult to prove.
I am well aware that the supporters of the Declaration argue, with regard to foodstuffs, that this country would be no worse off under the Declaration than it is as matters stand now. They maintain that food can be declared contraband at the present time. But that is not so. As the Right Hon. James Bryce stated in the House of Commons on August 11, 1904—
Food, by the general consent of nations, was not contraband of war, unless it is clearly proved to be intended for military or naval purposes. In 1885 a demand was made by the French Government to treat rice as contraband of war. Lord Granville protested in a most, energetic way, and stated that he would not recognise the decision of French Prize Courts which treated rice under that category, anti in point of fact rice never was treated as contraband of war.
It may also be noted that, as regards this particular instance, in the French Chamber it was stated that rice was made contraband not as the food of the people, but because it was used as tribute and as payment for the Chinese soldiers. Many more quotations could be given against the thesis that the food of the people can be declared contraband of war.
§ The worst of Article 34 is that while good excuse is given for foodstuffs coming to this country in neutral vessels in time of war being seized and even destroyed, Article 35 states that conditional contraband is not liable to capture when it is to be discharged in an intervening neutral port. That is to say, if we were to be at war with a Continental Power or Powers neutral vessels carrying conditional contraband, which includes all the articles I have already enumerated, could be, as I understand it, addressed straight to their belligerent forces, but we could not interfere with it as long as it was to be discharged at a neutral intervening port. Our cruisers might meet them, but they could only wish them godspeed. These two Articles taken together are grossly unfair to us as an Island Power. We have no neutral ports to draw these supplies from overland. All 335 our ports would be suspect. It is said, indeed, that neutral vessels could take our food supplies to France if France were a neutral, which is perhaps improbable. But grain comes over now in big ships. There are no facilities for storing and transhipping large quantities of grain in the northern French ports, and Antwerp and Rotterdam, where there are facilities, might not be geographically very safe points for this operation, which in any case must largely increase the cost of the commodity. Articles 34 and 35 imperil our food supplies and other articles of conditional contraband, while they secure them for possible Continental enemies when carried in neutral ships. It is impossible for the captain of a neutral vessel carrying foodstuffs to any port in England to satisfy the commander of a hostile cruiser as to the destination of his cargo. For one thing, he does not know. Under modern conditions cargoes of grain change hands on the high seas, and it is impossible to prove that their destination is what is termed innocent. The hostile commander will in that case either capture or perhaps sink the ship, and leave the talking to be done afterwards at the International Prize Court.
Now, my Lords, I come to the second point in my criticism, the admission of the principle of destruction of neutral prizes which is contained in Article 49. This is also one of the points submitted by the German representatives and agreed to in the Declaration. Article 48 says—
A neutral vessel which has been captured may not be destroyed by the captor; she must be taken into such a port as is proper for the determination there of all questions concerning the validity of the capture.
That is quite right and in accordance with the hitherto accepted Law of Nations, and is fully borne out by the Secretary of State for Foreign Affairs in his letter to Sir Edward Fry at the Hague Conference, in which he said—
As regards the sinking of neutral prizes, which gave rise to so much feeling in this country during the Russo-Japanese War, 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 it 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 two hundred years held to be the Law.
But all that goes by the board in the next Article, No. 49, which says—
As an exception a neutral vessel which has been captured by a belligerent warship, and which would be liable to condemnation, may be y 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.
Thus Article 48 says you may not sink neutral vessels, while Article 49 says you may if you like. The commander of the warship is the judge on the spot as to whether the neutral vessel is carrying contraband, and the operations in which he is engaged is commerce destroying, and he would not be doing his duty to his country if lie allowed anything to interfere with the success of these operations, and so he is bound to take full advantage of Article 49. The Declaration allows this innovation on the practice of 200 years; the signatory Powers cannot protest; the only appeal is to the International Prize Court which I have already alluded to. Before the Declaration the neutral Power would have protested energetically if her ships had been sunk, but now she must wait for the individuals who have suffered to prove a negative in an undetermined language in the International Prize Court. If we were at war and the United States were neutral much of our grain from North America would come here in United States ships. Under Articles 34 and 49 these ships may be sunk, and I do not see how the United States, if she ratifies this Treaty, can protest, and the same remark applies to the other signatory Powers. In this respect, instead of being better off under this Declaration as the Under-Secretary of State avers, we are a great deal worse off than we were before.
The last of the three points to which desire to call attention is the absence of any provision in the Declaration for preventing the conversion of merchant vessels into commerce destroyers on the high seas. This is a most vital consideration as regards this country, which owns fifty per cent. of the sea carrying trade of the world. The first Article of the Treaty of Paris of 1856 is: "Privateering is and remains abolished"; but attempts are being made to revive it in a worse form than has ever been experienced. The matter cannot be put plainer than it is by the Secretary of State for Foreign Affairs ill his instructions to our representative. On the eve of the Conference he wrote—
Apart from the important question of principle involved, there are two practical considerations which have chiefly weighed with His Majesty's Government in refusing to recognise the right to convert merchant vessels into ships of war on the high seas. One is the facility which such a right would give to the captain of a merchant vessel qualified to act as a war-ship, to seize enemy or neutral ships without wanting. The other is that enemy vessels under the mercantile flag, but suitable fur conversion, would be able, as merchantmen, to claim and obtain in neutral ports all the hospitality and privileges which would, under the accepted rules of naval warfare, be denied to them if they were warships. Availing herself of these advantages, such a vessel, found in distant waters after the outbreak of hostilities, would be enabled to pass from one neutral port to another until she reached the particular point in her voyage Where she might most conveniently be converted into a commerce destroyer.
Surely this is a very grave omission in the new Code of sea warfare. The matter has been left undetermined. Germany, France, and Russia were in favour of conversion on the high seas, and the United States, Great Britain, Japan, Italy, Austria, Holland, and Spain decided against it. Is the International Prize Court to decide for or against In the Russo-Japanese war this country protested against the Russian Volunteer Fleet coming as unarmed ships through the Dardanelles and acting as commerce destroyers, and Lord Lansdowne's protest was at that time upheld. Although we own, roughly speaking, one-half of the sea trade of the world our ocean highways are very inadequately policed. I believe that from Vancouver to Cape Horn we have no cruisers capable of defending it if attacked by swift converted liners. Our twenty-seven cruisers free for that purpose are quite inadequate in the other parts of the world, and we should want an enormous addition to our commerce protectors if this right of conversion on the high seas is to be permitted.
§ My Lords, I have tried, very briefly, to point out the reasons why, in the opinion as expressed by large sections of our business community, the Declaration of London should not be ratified. Although I am most strongly in favour of International Agreements which have as their end the settlement of disputes by arbitration and not by war, yet I believe that this Declaration is so grossly unfair that it will rather invite war against this country than prevent it. By the conversion at sea of peaceful vessels into commerce destroyers without notice on the high seas, by the sanction of the destruction of 338 neutral prizes, and by Articles 33 and 34 which imperil our food supplies in neutral ships, we are exposing ourselves to new and most grave dangers. The Declaration of London constitutes the greatest peril to us as an Island Power, and I trust it will never come into operation.
§ I should like to press for an answer to the three questions I have put. Is the Declaration binding, if signed, on the signatory Powers, supposing the International Prize Court is not set up? Is the commentary of M. Renault to be considered as an authoritative interpretation of the Declaration? And will the Government name the ports in this country to which neutral vessels carrying foodstuffs and other conditional contraband would have free access? In conclusion, I may say that on the whole the concluding paragraph of the Declaration is the one with which I am in most accord—namely, "Done at London," for that is where we have been done, and on February 26, 1909.
§ My noble friend Lord Lamington, who has a Motion on the Paper to refer this matter to a Royal Commission, is unfortunately prevented by indisposition from being in his place, and therefore on his behalf, if it is consonant with the rules of the House, I should like to move the Motion.
§ Moved to resolve, That, in the opinion of this House, it is desirable that a Royal Commission be appointed to report on the advisability of this country agreeing to the terms of the Declaration of London.—(Lord Desborough.)
THE EARL OF DESART
My Lords, I think I am entitled to ask this evening for a special measure of that indulgence which your Lordships always so generously and freely accord to a member of this House who addresses you for the first time, because in my first essay in political and Parliamentary speech I have to deal with a question of great complexity and difficulty, and one which has been the subject of much criticism. In putting before your Lordships my views, which I feel strongly and honestly, I wish to say that I do not speak in any sense for the Government. The noble Lord who has just sat down will, I am sure, not think me discourteous if I do not immediately touch on the particular questions he has 339 raised, though I shall have to deal with them later in a different order from that in which he has placed them before the House.
My position is not quite an ordinary one. I am interested more than most people in this Declaration, because I had the honour, under the instructions and authority of His Majesty's Government, of presiding as British Plenipotentiary at the Conference of London which drew up the Articles of the Declaration, and at the conclusion of the discussions I had the satisfaction of knowing that the result was approved by His Majesty's Government. I have been told, though I do not think it matters much, that personal attacks have been made on the actual delegates. I am quite sure the noble Lords on both Front Benches will agree that I need not concern myself with these attacks, because it is well established that when a public servant is employed to act by his political superiors blame or approval for him is to come from them and the responsibility is theirs if they adopt his conclusions and act upon them. I only say that because of my colleagues who worked loyally with me in pursuance of the instructions they received, and who, I think, ought not to be subject to comment of that character.
I myself have carefully abstained from taking any part in the discussions that have raged round this document and round the conditions under which the International Prize Court was proposed to be established. I have carefully abstained from newspaper correspondence and from attending gatherings to which I have been invited at which the subject was discussed, but I hope I am not doing anything wrong in addressing your Lordships to-night. I am no longer an official, and with the knowledge I necessarily have of how the conclusions were reached I think it is almost a duty to afford such explanations as I can make, by going through the Declaration, avoiding as far as possible a controversial tone, and merely commenting on what seems to me to be the effect of the various provisions embodied in the Declaration. The difficulty I have found in considering what I should say to-night lies in the great mass of the material, and in the consciousness that the subject cannot be familiar to more than a small number of your 340 Lordships, and, indeed, the knowledge of it is not easily to be acquired.
We who have been engaged ill this task, not merely at the time of the Declaration but long before it, have endeavoured to consider the conditions under which naval warfare would now be waged, how they would operate to the advantage or disadvantage of this country, and, lawyers though some of us were, to try and draw practical conclusions as to the results both of the existing condition of things and of the provisions that will be found in the Declaration. I had the advantage of being assisted in those labours by the then Director of Naval Intelligence, Rear-Admiral Slade, now Commander-in-Chief in the East Indies. and by the Secretary to the Imperial Council of Defence, both naval officers of large experience who had studied this subject for many years, and to whom I can never sufficiently express my indebtedness. My colleagues of the Foreign Office were also familiar with the conditions, and they afforded me equally valuable assistance. We took instructions from time to time on points that arose, and we had, I believe, in all the more difficult and crucial questions the direct authority of the representatives of the Government in the course we adopted at those moments.
The outcome was this Declaration; and I would like, before I embark upon it, to say a few words about the light in which I think it ought to be considered. You cannot, it seems to me, take the Declaration standing by itself and say, "That is good; that is bad; and as there is something bad in it we won't have it." What you have to do is to try to see how the existing conditions really work out in practice, to see what they really are, to see how far the rules—and it is not very far that rules exist at all on many points—would operate in time of war ill regard to the interests of this country, whether as belligerents or neutrals, and, finally, how the Declaration itself would work out by comparison. That is, I think, the only standpoint you can take in order to judge whether, first, the thing is in itself an advance in international law, and, most important of all, whether it does injure our country as belligerent or neutral. There can be no question that, whatever advantage it might be in some cases to us as neutrals as regards our trade, if in 341 order to gain that advantage we had to make any sacrifice of any practicable belligerent right we now possess and can exercise, the neutral interest must go. There in no doubt, I think, about that.
When I suggest that the provisions of the Declaration must he compared with the existing state of things I do not think that we can reasonably go back to the great wars of the eighteenth and nineteenth centuries, because the conditions not only of trade but in all ways are totally different owing to the Declaration of Paris. Whether that Declaration was wisely adopted by this country or not is a matter on which different people may have different opinions. Mr. Bowles, to whom the noble Lord referred, has strong views on that matter. I do not agree with him on many things, but on that point I very largely agree with him. I do not, however, see how it is possible to contemplate that we could go back upon it. Practically every nation in the world of any importance has accepted it. I know that the United States is said to be an exception; but it is not really an exception at all. The reason it was not accepted by the United States at the time was because of their objection to privateering being forbidden. They had no objection to the other rules; and since that time, being no longer dependent on their mercantile population and their mercantile ships to act for them in time of war, they have adopted it in their recent war with Spain. It is impossible to suppose that any Plenipotentiary of the United States could have signed and agreed to the document under consideration without accepting the Declaration of Paris.
This question has called forth a great deal of attention in the newspapers, and some writers seem to think that we have given up our right to capture the enemy's ships. That is not so. The right to capture the enemy's ships has not been touched by anything, and it is one of our most valuable weapons of war, because so long as we have the command of the sea we can practically after a short time exclude the enemy's merchant flag from the sea altogether. It is a weapon of great pressure on some countries, and it an important factor for us in a naval war. I am not quite sure how you could have avoided the criticisms that have b en made by the noble Lord of the constitution of the Court. It is better to 342 have an appeal from an enemy's Prize Court than to depend on diplomatic representation when you have been wronged. It must be of advantage to a neutral to go to a Court which is more impartial than the belligerents' Prize Court, the only alternative.
The noble Lord referred to the independence of Prize Courts. That is quite true about our Prize Courts and those of the United States, but it is not really true of foreign Prize Courts. A great number of them act, quite properly under their system, according to rules laid down by the Executive very often at the beginning of the war for that war. Therefore in a sense you might be at a disadvantage as a belligerent, because, supposing in many instances our rules were more lenient to a neutral than rules laid down by an enemy, we should in some cases release prizes that we had taken, whereas the enemy's Court would condemn prizes they had taken in precisely the same circumstances. Therefore this is, at any rate, a more impartial tribunal than you would get in the enemy's Prize Court. As to the constitution there is always a majority of the great Powers, and I do not accept the idea, if we do succeed in establishing rules that ought to be administered by an International Court, that those rules would, in the face of all Europe, be misapplied. It would be a great responsibility. It is, of course, a matter of opinion, but I do not think those laws would be misapplied. If they were, I think the feelings of neutrals would be very strong, and I cannot help thinking that, as the majority of the judges would be representatives of neutral nations, there really is not much peril of their going wrong in that direction. As probably those of your Lordships who have read the International Prize Court Convention are aware, the cases subject to appeal are very limited.
When the Convention was agreed to by the representatives of the Powers at The Hague and transmitted here it was felt that it was impossible that it should be ratified by this country until some rules were made which it should administer. It was left incomplete in the Convention through the absolute impossibility of going any further in the time at the disposal of the representatives. As it stood they were to apply rules of international law, and, 343 where they failed, the principles of justice and equity; but, left thus vague, it was not a tribunal we could possibly approach. The result was that Sir E. Grey invited the Great European Powers. the United States, and Japan to a Conference, taking certain specific points which they had to discuss, with a view, if possible, of framing rules for the guidance of the Court. The Conference met and formulated the Declaration of London, annexing to it an explanatory report, which has been the subject of a good deal of comment by my noble friend. I think it is important to know whether it is an authoritative document which will guide Prize Courts in their decisions. It is not altogether a question of law; to a large extent it is a question of fact; and when we stated in our report that we thought it was a document that would be so treated by the International Prize Courts on the Continent we thought that we were speaking in accordance with fact. I still think so.
Naturally I have been impressed by the correspondence I have read in the newspapers between Professor Holland and Professor Westlake, who take different views on the subject. They are men of the greatest eminence, and men to whose views I should defer if I could. But it has struck me that all the letters in the newspapers were rather based on what I would call the English reasoning, the view taken in English Courts of documents that might purport to be explanatory but were not parts of the actual documents under consideration. What is important is not what are the views our Courts would adopt of it but what view other Prize Courts would take of it, and the majority of those would be Continental Courts, and, generally speaking, would adopt the Continental system, which I think Japan also adopts. I ventured, in these circumstances, to communicate with a friend of mine—I am not, unfortunately, at liberty to mention his name, but he holds a very high position among International lawyers and is a gentleman whose name would carry weight—and I asked hint to let me know what his opinion was on the subject. I will read to your Lordships a translation—he is a French lawyer—of what he wrote to me—In my opinion there is no doubt that the Report which accompanies the Declaration of London will be considered by Continental Prize Courts as the official commentary of the Declaration 344 itself. The circumstances in which the Report was presented show that it must (ought to) be so. Not only was the Report unanimously agreed by the drafting Committee on which all the signatory Powers were represented, but it was also submitted to the Conference itself in full session and by it formally accepted. The signatories have adopted the Articles of the Declaration as interpreted by the Report and with the meaning given them thereby. It constitutes a whole, the parts of which cannot be separated without a breach of the agreement which was attached. As is expressly stated, the Report was not made to satisfy the friendly curiosity of international lawyers but to serve as a guide for the administrative, military, and judicial authorities who might have to apply its provisions. I do not see how that which was in the minds of all could have been more clearly expressed. There is nothing in common between such a Report, the work of the whole Conference, and the preliminary explanations (or preamble) which might precede an ordinary law, to which the Courts might give the force which they thought right. I do not wish to touch on delicate ground, but it seems to me that it was not a case of endeavouring to provide an interpretation in accordance with the practice of English Courts. It does not relate to an Act of Parliament, but to an International Convention which should be taken in the sense in which it was understood by the signatories; and, as I have explained above, the intention of the signatories to adopt it as an approved commentary is beyond question. It is the strict duty of all the authorities who have to apply the Convention to conform to it.That is the opinion of an eminent man, and his view I myself believe represents what would be the ordinary practice of the International Court. I think the Prize Courts on the Continent would treat it almost or quite as having Conventional force.
The Powers were, before the meeting of the Conference, invited to submit memoranda or statements of their views on the rules and the questions raised for discussion. They did so, and, while there was a certain unity of principle to be traced running through the various memoranda the divergences in regard to practice, or supposed practice, were very serious indeed. I confess that at that time I had very little hope of any issue coming from our meeting. It still seems to me very advantageous to neutrals that, if it could possibly be attained with equity and justice, they should be able to know as nearly as might be what they could do at the outbreak of war, what they could carry, and what perils they might avoid. From the belligerents' point of view I am disposed to think that rules are also, if they can be reached and if they are proper rules, a great advantage, because if a belligerent acts in accordance with such 345 rules a neutral whose interests he may affect can have no grievance or reason for threatening war or making war with the belligerent of whose conduct he complains except in extreme cases of abuse of powers. The risk of war has been sometimes incurred through the incautious act of a naval officer. If he can have any clear rules for his guidance as to dealing with neutrals it is to his advantage, because it lessens the risk of increasing the area of war. I regret very much that the noble Marquess the Leader of the Opposition is not here to-night, because lie could speak with great force and authority on this point. Our experience during the Russo-Japanese war very strongly illustrates that point. There were cases then in which we certainly thought the action taken by Russia was outside the legitimate and proper exercise of her powers. We remonstrated, in some cases successfully and in others not. But her treatment of neutral ships was extremely instructive as to the position in which we stand now in a naval war, whether as neutrals or belligerents.
There is another aspect of the matter which should not be lost sight of in considering this question as a whole, and that is whether, even if we should wish to do so, we could now, as we could at the end of the eighteenth and beginning of the nineteenth centuries, enforce any views which we held against the rest of the world. Your Lordships will remember that at that time outside the belligerents there were not any very strong naval Powers and we had hardly any powerful neutrals to consider, and there were moments during those long wars when we certainly did not consider neutrals. The danger of that was illustrated when we were asserting our belligerent; rights against neutrals to the utmost in 1812. There was one neutral—the United States of America—which was provoked into a war, one on which we at least can look back with no satisfaction, and which produced distrust which is only now dying and in many parts of the United States of America is not dead. But if there was one neutral then who was of importance to us there are many now; and I do not think, even if we desired it, which I am sure we should not, we could now play the part of Athanasius contra mundum.
I owe your Lordships an apology for speaking at such length before actually coming to the provisions of the Declaration, 346 but this is a matter which cannot be very well known to all your Lordships and therefore I thought some little preliminary history, if not very valuable, would at least to some extent illustrate what followed. I should like to say that I am in no sense a spokesman for the Government. I do not know what they are going to say. But I am conscientiously and honestly a supporter of the ratification of the Declaration. I believe we shall benefit by it largely as neutrals, and I believe we shall not sacrifice one single belligerent right. In giving my reasons for that view I will confine myself to those points which have been mainly the subject of criticism—namely, those dealing with blockade, contraband, the sinking of neutral prizes, and the absence from the Declaration of any provision as to the conversion of merchant ships at sea. At the Hague Conference Sir Edward Fry, a man who does not speak lightly, said—The International law of to-day is hardly anything but a chaos of opinions, often contradictory, and decisions of national Courts based on national laws.With regard to blockade, I read in one newspaper that we were giving everything away. I am going to suggest to your Lordships that we have given away nothing, but that we have gained something. Nearly all the rules as to blockade are really practically in accordance with our own law. Looking to history, to the limitation of our theoretical rule and its working in practice, as well as to the wide limits which may be included in the "area of operations of the war-ships detailed to render the blockade effective," the result is that Clause 17 in effect means, if not all that might be covered by the old principle, all that it was found in practice could be effectually put in force there under, and in this respect Great Britain has in no sense weakened her effective power of blockade, while she has obtained almost complete acceptance of her principles, and complete abandonment of the French rule of notification and of the Continental theory of definite lines of blockade.
It has been said that in accepting the proposal that ships should only be captured for breach of blockade inside the area of operations of the blockading squadron we have made a material and important concession. That I deny. Under our existing rules a ship would not be condemned if 347 she had an alternative destination and though she might have started for the blockaded port had abandoned the intention of going there. Under modern conditions she would get orders at the last moment by telegraph. She would never commit herself to the intention to break blockade in the earliest stage of her voyage. There are eighty-eight cases in the English books of condemnation; Of these eighty-eight cases there was not one single one in which the ship was not condemned except under conditions in which I contend she would inevitably have been condemned under the provisions of the Declaration. I should qualify that by saying there were four eases, and four only, in which the exact locality of capture was not certain. Therefore, through all these long wars we never condemned a ship for breach of blockade unless she was close to the blockaded port or coast. It seems to me that we have secured under the Declaration exactly what we want. We could not accept the mileage limitation suggested by some of the Powers because the conditions of blockade vary. The only condition of a blockade is that it must be effective, and the only test of the area is whether it makes an effective blockade. The Report is, of course, of great value as illustrating that, but personally I submit that under the Declaration—Report or no Report—it is quite clear that the area is a perfectly loose term only limited by what is necessary for the effectiveness of the blockade, and a naval officer would not make a larger area than he wanted because he would require more ships. His object would be to blockade with the least force necessary to make it efficient.
I do not say much about egress, because I do not think it is a very important point. As a matter of fact, I believe there are only one or two cases of egress in our books at all; but nobody would detach a man-of-war for the purpose of intercepting a neutral ship. if she was not doing anything to injure us. I would make one general observation about blockade which might induce your Lordships to think I need not have dwelt upon these considerations so much. The observation I desire to make is that a ship here or there is not of much importance. In a blockade now, the principal object will be to bring economic pressure to bear on your enemy and prevent ordinary trade going to his own ports, and one or two ships coming 348 in or out would make little difference. That would be an instrument of very large economic pressure indeed, because I am told that land transport is something like ten times as expensive as sea transport and that would bear very hardly on those traders who are mainly accustomed to bring goods in by sea. That view of the matter was illustrated by the Japanese War, in which the fleet captured some junks which were carrying stray cargo and despatches, but there was no importance in those captures.
Now I come to the question of Contraband. I will not say it is the most important, but it touches so many matters—such as the destruction of neutral property—that it becomes really the central feature of the Declaration. The noble Lord, Lord Desborough, quoted, quite properly, a number of commercial associations that feel very apprehensive about the adoption of the Declaration. I should like, if I may, to read a statement made by the chairman of the Liverpool Steamship Owners' Association. He states, and I think it probably would be accepted by the noble Lord himself, that—Neutral traders feel more and more the want of a definite international Code stating with exactness their rights and liabilities in the presence of naval warfare, and they have suffered more and more from the want of some tribunal more impartial than the Prize Courts of their captors to decide the questions that must arise in every naval war between the neutral traders and the belligerents.Before I proceed with contraband, I should like to make a few general observations on the question of food supply. It will be admitted that our food supply is only safe in time of war if we can protect our own ships. if we cannot do that, we shall not be sufficiently supplied by neutrals. I am quite sure it is so. I am told that the neutral ships that would be available could not carry food supplies sufficient to feed us. We must carry our own stuff in our own ships. In one sense the food carried in neutral ships is, I would not say of no importance, but of relatively small importance. What is important is that our own ships should get through. There might be moments when the import of grain or food in neutral ships might be of real importance to us for a time, but I think that the provisions as to contraband and continuous voyage do a great deal to ensure that supply and do nothing whatever to check it. With regard to the fear as to the right to make 349 additions to the lists of absolute and conditional contraband, I would point out that they are limited, first, as to things capable of use in war, and, secondly, things capable of use for purposes of war or peace. In any case, if a neutral is found with contraband on board and had not received notification, she would be compensated for any destruction of contraband. That is as regards neutrals.
With respect to the criticisms that have been made on Articles 33 and 34, I do not think they bear the interpretation that has been put upon them by the noble Lord. Article 33 reads—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a Government Department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress.I do not think that any real exception can be taken to that Article, because, for reasons that I shall give, I think this class of goods with this destination has always been held to be contraband. I find in the older books the word used is "contraband." The distinction between conditional and absolute contraband had hardly been developed as it is now adopted by our Prize Courts, but, I am afraid, not altogether by other Prize Courts. Article 34 creates certain presumptions as to destination, and sets out certain proofs which may be required. I should like to say about that, that I do not think those presumptions are as perilous as has been suggested. Clearly it cannot be an extension of the principle that the destination must be to a department of the enemy, or the enemy's forces, and, assuming I am right, contraband with that destination would be capable of condemnation. If these goods are sent to a trader—I will not use the word "contractor," because there is a doubt about the translation—who notoriously supplies the enemy's Government with these goods, that seems to me a reasonable presumption.
With regard to the word "base," I would only say that it is to some extent a word of art. We may not know exactly in the first instance, what a naval commander might consider to be a "base" in stopping a ship, or exactly what a Continental Prize Court of Appeal might hold to be a "base." But the Declaration makes no real difference in this respect. We are in exactly the same position at 350 the present time. The naval commander would act in precisely the same way; a belligerent would act in precisely the same way; and the only difference would be that there would be no International Appeal Court to go to if you were dissatisfied with the action of the naval commander. We think, therefore, that those presumptions do not justify all the observations that have been made about them from time to time, and by my noble friend to-night.
I should like to touch on what is, perhaps, in one sense the most important matter that has been raised in connection with this question of conditional contraband—namely, the application of the doctrine of continuous voyage, or, as I prefer to call it, ultimate destination. Now it has been said, and said very often, that we have obtained the doctrine of continuous voyage as to absolute contraband, but have given away the doctrine of continuous voyage as to conditional contraband. That is not really an accurate statement of our position, because the doctrine of continuous voyage in respect of contraband is really not an English doctrine at all. I do not know whether it would be adopted by our Courts now. I think it very likely would be; but our doctrine of continuous voyage was quite a different one, and it related to the close trade of an enemy during peace being carried on by a neutral during war. If we were at war we stopped such neutral ships as enemy ships and condemned them. This was endeavoured to be met by their entering, between their departure and destination ports, another port front which trade was legitimate. We said we would not recognise that, but that if it was one enterprise it should be treated as a continuous voyage. That was our doctrine of continuous voyage. The United States extended it to contraband during the Civil War, and the most that can be said about that is that we acquiesced. I do not think we protested against the condemnation of one or two of our ships. And this point, as far as we were concerned, came up for consideration in the South African War, when a question arose on a claim that was put forward by us that a voyage was a continuous voyage when the ship was only bound to the neutral port of Lorenzo Marquez. As your. Lordships know, the German Government contested that claim on our part, and for various reasons, partly because there was no contraband on 351 board, we did not press the claim and it was never brought into the Prize Court. That is how it stands. It is not our doctrine as far as any decision of a Prize Court says it is. I think it might be accepted now as part of our law by our Prize Courts, but that is speculative. I think it would be more accurate to say, if you want it to he legally accurate, that we had obtained the acceptance of continuous voyage for absolute contraband; but, however that may be, let us think what is the value of contraband in continuous voyage. I will come to the consequences afterwards. Conditional contraband is not ear-marked as for any warlike purpose. No one could tell that that was its objective. Do you suppose that if anybody was sending conditional contraband through a neutral port for a belligerent it would be addressed to the belligerent? It would go to a neutral port as ordinary goods, and there would be nothing in the world to indicate to outsiders that it was going to any enemy. It would be consigned to a neutral trader, and no commander of a man-of-war would have any grounds for stopping the ship on its way to a neutral port, because there would be nothing to indicate that there was anything contraband on board.
When the question was first under discussion, I confess that was the governing factor in my mind which led me, not to assent, exactly, but rather to advocate assent in order to obtain the acceptance of continuous voyage for absolute contraband. I thought it could not be of the smallest advantage to us. But when I considered the matter afterwards—since the Declaration was framed—I came to the conclusion that really, on the question of food supply, it is very much to our advantage. Take Germany as an example, and say they took Rotterdam as their port. These goods would be landed at Rotterdam. They would have to go into Germany at a time when. if the coast of Germany was blockaded, the whole volume of her ordinary peaceful trade would be coming by train from neutral ports. The railways would be blocked, the expense and delay would be enormous, and the whole of her trade would come in under great disadvantages. Take our situation. I do not think it is a matter of first-rate importance to us to get our food in neutral bottoms, but assume that it is if we were at war with Germany I must say I cannot imagine that we could not get 352 over the difficulties suggested by carrying the whole of the foodstuffs we wanted in neutral bottoms from French ports. If we had lost command of the Channel and there was time enough to starve us out, I do not think there is much more to be said, or that it much matters, but as long as we command the Channel we can keep going what I might call an omnibus service of ships, carrying all the food neutrals can bring.
I should like to deal now with a question that has been hotly debated—the question of the destruction of neutral ships. I think some of the letters which I have read in the newspapers and some of the very bitter observations that have been made on the subject arose from the fact that perhaps our representatives at the Hague and we in London somewhat overstated our ease. It is not correct to state that in no circumstances should a neutral ship be destroyed. Our rule is that if a neutral ship is destroyed by us in circumstances of pressure it should be the subject of compensation in all cases. It is not to be an excuse between us and a neutral that the exigencies of war compelled us to destroy the ship, whatever the cause, whatever the character, or whether or not the cargo be contra band. He is to be compensated in all cases. I think I can show you that very easily. I will read an extract from Lord Stowell's decisions. This is in the case of the "Actaeon "—Lastly, it has been said that Captain Capel could not spare men from his own ship to carry the captured vessel to a British port, and that he could not suffer her to go into Boston, where she would have furnished important information to the Americans. These are circumstances which may have afforded very good reasons for destroying the vessel and may have made it a very meritorious act in Captain Capel so far as his own Government is concerned, but they furnish no reason why the American owner should be a sufferer … I think, therefore, that he is entitled to receive the fullest compensation.Again, in another case—"Felicity," 2 Dodson, 386:When it is neutral the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the public service of the captor's own State. To the neutral it can only be justified under any such circumstances by a full restitution in value.And much later Dr. Lushington, in giving judgment in the case of the "Leucade," in 1855 (2 Spinks, 231) says:—It is the right of the neutral to be brought in to adjudication…No excuse for him (the captor) as to inconvenience or difficulty can be 353 admitted between captors and claimants … If the ship be destroyed for reasons of policy alone, as to maintain a blockade or otherwise, the claimant is entitled to costs and damages.I think it is perfectly clear, when you come to think of it, that that must be the rule.
Just imagine a case like this. Two fleets within a comparatively short distance of one another are expecting a fleet action. A neutral ship comes up, and is met by one of the belligerent cruisers. We will call it the A fleet, and the ship is on its way to the B fleet, filled, with things that. the B fleet wants for the purposes of this fleet action. Is there any naval officer in the world who would let that ship go? In such circumstances he obviously cannot detach any one to take the ship in. He wants every man and ship for fighting. All he can do is to do the best with the people on board, and if he cannot manage to hold the ship he must sink her. I believe any officer in the world would do so. That is our rule. You do it for the sake of your own side. See how that works out. Other nations have not got our rules as to compensation. The result is that if in the public service we destroy a neutral vessel, we, being the belligerents, pay full compensation for everything. But if we are neutrals and a belligerent finds it necessary to destroy our vessel in the public service, it does not follow that our owners will get any compensation at all. We really get the worst of it both ways.
On this point the Russo-Japanese war was extremely instructive. Six ships were sunk altogether, I think. In some cases compensation was paid and in others not, but where the compensation was paid it was paid, not because the ship was sunk—that was not the matter before the Prize Court—but because the cargo was not contraband and ought not to have been touched at all. I have taken an extract from the translation of the statement made by the Russian Court in the case of the "Knight Commander"—The question of the regularity of sinking a vessel according to the exact interpretation of Article 58 of the laws relating to prizes is not one that is subject to the consideration. of Prize Courts … Whether the extraordinary circumstances observed 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, i.e., whether the capture is legal or illegal, or, in other words, to confirm the right of capture or to refuse such confirmation.354 And they also say, if the State itself thinks fit, may prosecute the captain, but that is not a matter for the Prize Court.
Now, what does the arrangement in the Declaration do? It asserts, first, the impropriety of destroying a neutral ship. It then says—As an exception, a neutral vessel which has been captured by a belligerent warship and which would he 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.That involves two considerations—first, the safety of the warship, and, secondly, that the neutral vessel would be liable to condemnation. Both those provisions are necessary. It is also necessary that the parties on board should be placed in safety, and the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship. When you get to the Prize Court you have to establish both those propositions. If you do not establish them you will have to compensate anyhow. You will have to show that there was danger to the safety of the warship, and that the neutral ship was liable to condemnation, and if you establish both pm-positions you are justified. Therefore the onus is very heavy. It is said that it is not sufficient when you have lost your ship to be merely compensated. My only answer to that is that there is nothing else, and it is the same now. There is nothing but compensation when property is destroyed. Whether the complaint is to the Government or to the Prize Court the remedy is compensation, and I know of no other remedy available.
Just consider the difficulties. Even assuming, which I do not lightly assume, that any difficulty of manœuvring or something of that kind would be held, first by a belligerent Prize Court and then by the international Prize Court to fulfil the conditions required as to danger to the safety of the warship and the success of the operations, before he can free himself from the duty of paying the compensation he has to show that the vessel is liable to condemnation. I do not know how in nine out of ten cases he could possibly do that. He will always have the danger of having to pay compensation on that ground, because the circumstances under which he 355 would sink a ship would preclude any close examination of the cargo, and, according to the Declaration, there must be on board more than half the cargo contraband; and the ship being sunk, it would be very difficult to establish afterwards what they did destroy. The owners would nearly always get compensation. That is a deterrent. If I could think of a better deterrent I would, but I do not know what other deterrent could be devised. It would have been useless to contend that in no circumstances should a ship be destroyed. Under the rule we have established a ship may only be destroyed in case of necessity, the commander acting in accordance with his obvious duty to his country, and, though not perhaps quite in all cases, practically in almost all cases there would be compensation.
I must apologise to your Lordships, but I am afraid I must go back for a minute to a matter connected with food supply, because I do not think I ought to leave that out. It is of considerable importance. The noble Lord said, and it has been said in many other places, that there is no question that food cannot be treated as absolute contraband, but that there is a rule of nations that it should not be. I do not think that the proposition can be put nearly so high as that, and I think the instances that have occurred recently and in other times make it impossible to maintain that view. The French rule that was sent to us with their Memorandum as to the law which they regarded as being the true law of war on that subject was this—Food supplies and war material destined to non-combatants are not in principle considered contraband of war, but may be declared so according to the circumstances, of which the Government is judge, and by virtue of an order emanating from it.That is, no doubt, in accordance with the view which was strongly urged by France in 1885, when she declared all rice contraband, and to which my noble friend referred in his speech. What happened, according to Mr. Hall in his book on International Law, was that all the French consignments or shipments of rice ceased, and as in a very short time the war came to an end no ship was brought into Court. Mr. Hall puts it very clearly that the shipments absolutely ceased, and consequently trade was seriously interfered with. It is significant to note that the German Govern— 356 ment wholly approved of that declaration, and said it was entirely in accordance with the rules of war at that time. Since that time another great Power, Russia, has stated that, in her opinion, in principle, according to the particular war, you may declare food contraband. Russia, it is true, withdrew it from her list at our request, but she made no sacrifice of principle.
Nor are we altogether immune. In 1793 we deliberately declared all food supplies going to France contraband, because we desired to bring the pressure of starvation to bear on the French population The truth is that the whole question of contraband has never been very clearly established. I should like to read the observations of Lord Stowell in the case of the "Ranger." He said—It must always be remembered that this Government might have availed itself of the interior distress to the enemy's country as an instrument of war. It did not, however, but humanely permitted cargoes of grain to be carried without molestation for the relief of the necessities of famine under which Spain had for some time laboured.And further, in another case where there had been pre-emption, the question was the price to be paid. It has nothing to do with the decision in the particular case, but it assumes the right to stop corn that is going to a particular population. In the war between Japan and Russia this question arose, for apparently one ship was captured in July. The Russian Prize Court first condemned the cargo as consigned to a Japanese port. Cargo consigned to private Japanese firms was condemned, because near Kobe there was a military arsenal. Flour on board a ship bound for Korsakovsk, where there were no military operations. Rice and other provisions were bound for a Chinese port in the occupation of Russia, with no evidence of its destination for the forces. The Japanese condemned rice, the food of the population, going to a Chinese port in the occupation of the Russians. There were other cases, but I do not think I need dwell upon them. What it comes to is this, that there really is no generally recognised rule preventing a nation from placing food on its list of absolute contraband. We have a rule, but other nations do not generally recognise it, and we come in on unequal terms. The object which I think has been achieved by the 357 Declaration is that we should come in on equal terms and that all should be in the same position. I think that is all I need say on the subject of the condemnation of food supplies.
Now, with regard to conversion. Here we are on rather delicate ground. It is not for a moment to be supposed that anybody would read the speeches that were made at the Conference, but I do not think that any one who read the speech which I had the honour to deliver would feel that I did not realise the importance of this matter. I may perhaps, in my advocacy have put it a little too high. There is no doubt it is a serious matter, because in the first place it contains the element of surprise. A ship in virtue of her mercantile flag might go from port to port and fill up with coal until she got to some point where she hoped. to operate as a warship. The difficulty—and I am sure noble Lords will appreciate it—in dealing with the matter was that it was quite impossible to say that there was any rule of international law which forbad that. We are trying to make a new rule. I know of nothing which could prevent any nation from turning its ships into anything on the high seas when it is subject to no other jurisdiction, and that right was claimed in the clearest possible terms by the Powers. Qualification was impossible, and we had no alternative but to leave the whole thing out altogether. The only direct bearing it has now on the question is whether the omission of a provision to meet that matter is sufficient reason for us to abandon the advantage which we gain in other directions from the Declaration. My view is that it is not.
I hope time will enable us to come to some understanding on this question, but as it stands it is worth examining a little to see what it comes to. In the first place, a good deal has been said about licensing privateers. I always feel that strong language is a mistake, and I think it is really not applicable at all; but, at any rate, if it is, we are on exceedingly delicate ground in this country as signatories of the Declaration of Paris. In the case of the conversion of a merchant ship, if it operates on the high seas, there is, under the Hague Convention, this obligation on the Power that converts it, that the ship is to be commanded by a commissioned 358 officer and to fly a pendant, and is to operate as a man of war, to be under the control of the State, and be placed on the registered list of warships. So that, once converted, she is subject to the same limitations as a man-of-war, and I do not think it would be accurate to describe her as being the equivalent of a privateer. It is true that the conversion may have results from privateering, but still she is not doing it for gain. She is doing it as a warship after she is converted. When you come to the question of privateering I do not quite follow it, because this does not depend on the place where the ship is commissioned, and we have the intention in our own ports of turning merchant ships into men-of-war if necessary. At one time we were going to do it on a very large scale. So you limit the question of a ship being a privateer or not to prohibition of the place where the pendant is hoisted. It is quite true they have no precedents against us of having converted a merchant ship at sea. I do not know whether there is a case against any one, but we have so converted prizes. Altogether the ground is so uncertain that it is a matter that can only be settled by further negotiation. But whether it is sufficient reason for dispensing with the advantages which, in my humble judgement, we have gained from the rest of the Declaration I will not again say. I have stated my opinion as to this.
I think I have dealt with the subjects which have been the principal objects of criticism. As to the other matters dealt with in the Declaration, I believe the provisions are in substantial accordance with recognised principles which might very properly be accepted by us, except, of course, convoy, which we have conceded for reasons to which I really do not think anybody can object. Others who speak later may, if necessary, give explanations as to other matters, but before I sit down I should like to point out the position we are in. I am not speaking for the Government, and what I am about to say is rather a matter for the Government than for me. I only want to point out that we have clone everything we could to induce foreign Governments to believe that we wanted the International Prize Court and that we approved the Declaration. and on that basis they have 359 made concessions. They have signed and I am a little uneasy as to what they will say if we turn round and repudiate it now, and what they would say in future negotiations with this country. I think they will in future in dealing with us want some very strong security from the Government if, having gone so far with this Declaration, it is rejected now. Do not let me be misunderstood on this matter. I am most anxious not to be misunderstood. I would not for a moment suggest that, if in fact this Declaration does injure our vital interests, our material interests, that would not prevail over any consideration. I will only say that, if we reject the Declaration, the onus is on us to show that there is good and sufficient reason why we should not carry out our agreement; but beyond that I would not go for a moment. The interests of this country must always prevail. I repeat that I believe that we have made no sacrifice of any practical belligerent right whatever, and that as neutrals we gain.
Before I sit down I should like to repeat that, with or without the Declaration, there is one thing which stands out clear and pre-eminent. If, unhappily, we should hereafter he involved in war, it is on our own merchant fleet and not on that of neutral nations that we must rely for our food supplies, for the life-blood that pulses through our arteries, and on which our very existence as a nation must always depend. Our greatest peril, it seems to me, would be in the first fortnight of war, when there might be a commercial panic. Let our nation be assured that all Governments of whatever Party feel it their first duty to provide that our forces shall be sufficient to protect our own commerce in our own vessels, and that peril and fear will be averted. No rules can lessen that primary necessity. But by the Declaration we are substituting in the matters with which it deals fixed rules for what now approaches to chaos, and also diminishing the risk, by perhaps some ill-considered action on a disputed question, of increasing the area of war, and, at a moment of extreme pressure, adding to the number of our enemies.
My Lords, rightly or wrongly, I honestly believe that this will be the effect of the rules in the Declaration and of the creation of the International Court, and I therefore 360 earnestly, and from the bottom of my heart, trust that, incomplete as I admit it is in some respects, the Declaration will take its place on the Statute book of the nations, and that those questions which still remain outside its provisions may ultimately reach a conclusion acceptable to this country. I have detained your Lordships too long, and I thank you for the great indulgence with which you have heard me.
§ THE EARL OF SELBORNE
My Lords, I am sure the House is cordially to be congratulated, as also is the country, on having had the advantage of the very interesting and remarkable speech to which we have just listened from Lord Desart, and I am confident that I shall be voicing the opinion of all your Lordships when I say that we are glad that the moment has arrived when he is freed from his official position and can take part in the deliberations of this House. He is an additional ornament, from his own personal ability and his experience, and we welcome him here cordially from both sides of the House. It is not necessary in this House for Lord Desart to disclaim any motives in the fulfilment of his recent great responsibility other than those of pure patriotism, and whether we agree or disagree with his conclusions, we are quite sure of this, that not even the pride of paternity would have obscured his sense of patriotic duty.
The noble Earl laid down two rules by which, in his opinion, consideration of this question should be guided, and I accept them both. The noble Earl said first, that we must consider this Declaration as a whole. As a whole would it be to the advantage of this country to ratify it? If so, it should be ratified. If, on the other hand, the disadvantages of the Declaration are regarded as greater than the advantages, then Lord Desart admitted that those who held that view would be justified in endeavouring to prevent its ratification. The second rule Lord Desart laid down was that the question must be discussed on the true basis of what the position of other nations is, and not of what we think their position ought to be.
We cannot conceal from ourselves that this is a subject of great difficulty and complexity. No one can have such authority 361 to speak on it as Lord Desart, but many of your Lordships, according to your opportunities, will have tried to master the leading features of the question. And the matter being so complex, I must say I regret that Mr. McKinnon Wood, who has been an able spokesman of the Government in this matter, should recently in an able and interesting speech, have endeavoured to prejudice its consideration by what I must be permitted to call a wholly irrelevant observation. He said that if this Declaration were not ratified—one result would be that a new stimulus would be given to the competition in naval armament, which already was an awful burden upon the nations, and we at least would be compelled to suffer in silence for we should be responsible.That, my Lords, is a statement which really cannot be justified or defended. Whether this Declaration is ratified or not, not one penny will be added to or taken from the Navy Estimates of this or any other country.
It is quite impossible for any speaker to grapple with the whole of this vast subject—not even Lord Desart attempted that. I shall not attempt to follow even the major portion of the question which he so ably dealt with. I will take only the case as it affects us as belligerents, and only that part of the case which deals with food supplies. And here I am able to quote Mr. McKinnon Wood with cordial concurrence. I do not think the position could be more completely summed up. He said—The real question was: Would the Declaration of London make it more difficult for this country to obtain its food supply in time of war than it was before? In this respect should we be better off by accepting or declining the Declaration? The whole of the confusion of thought which had arisen upon this subject had its origin in the fact that none of us had experience of the conditions existing under a state of war with a great naval Power, and that none of the critics had stopped to inquire into, and reflect upon, the actual state of affairs now existing before the ratification of the Declaration. If they did they would see at once that this criticism of the Declaration was quite beside the mark—that the Declaration did not make us worse off in this respect, but better off. It was no argument against the Declaration to say that under certain conditions food might be seized by the enemy, when the fact was, at the present moment, food might be seized by the enemy without any conditions at all. He would try to put the central points as simply as possible. If food was being brought to Great Britain in British ships, the Declaration would not alter the present position in the least. If the food was being brought to Great Britain in neutral ships, the Declaration would make us much better off than we were before.362 That is the position of the Government and of Lord. Desalt, and, with your Lordships' permission, I will proceed to examine it.
What is the position now? Assume that we are, unhappily, at war with some great naval Power and that this Declaration has not been signed. Will the enemy take our view, or what has been stated to be our general view, that food supplies are only conditional contraband where it is presumed that the food is on its way to assist in the operations of the enemy and that its destination is for a naval or military force of the enemy, or for some place of naval or military equipment in the occupation of the enemy? That, I understand from the Blue-book—Lord Desart will correct me—is the position we took up. But let us suppose the enemy to take a more extreme view. Let us suppose that they say, as it is suggested that they might, and as I think they would say, that all foodstuffs coming to the United Kingdom were absolute contraband. In the first instance, as Lord. Desart said. we have to depend upon our own naval strength. But there is a matter which, I think, Lord Desart did not sufficiently deal with, and which, it seems to me, the Government have not laid sufficient stress on in the Foreign Office correspondence—namely, what would be the position of the great neutral Powers if the enemy did declare all foodstuffs coming to the United Kingdom to be absolute contraband My Lords, I think that a neutral Power is in a position to put very great pressure on either side, and the possibility of that pressure has been much too lightly treated by the Foreign Office in its correspondence. The position of the belligerent Power when a neutral Power begins to make representations to it in respect of its treatment of some question of international law—say on this question of absolute contraband in the case of foodstuffs—would be strictly limited by two considerations: in the first place, the reserve strength of the neutral Power to make itself unpleasant if it chose to do so, and, in the second place, the calculation of the belligerent Power on how its own position would be affected if the neutral Power became another belligerent.
We have had some experience of this matter. At the time of the South African 363 war we regarded any representation from a neutral Power as to our action as a matter of the greatest consequence. We framed our policy—I am quite sure the Party opposite would have done the same in similar circumstances—in order to avoid giving any opportunity for a neutral Power to throw its weight against us. Again, in the case that has been quoted—the case of France in 1885—nobody can read the correspondence between France and this country at the time without seeing that the representations of Lord Granville had the greatest possible weight with the French Government and profoundly affected its action. In the recent war between Russia and Japan, had Russia thought at an early stage of that war that we were likely to throw our sword into the scale against her, is it not perfectly certain that she would have treated our representations with the very greatest respect? We were very careful at that moment of peculiar delicacy, after the incident in the North Sea, not to put any pressure on Russia that could have been construed as unduly taking advantage of her then difficulties, and if Russia did not pay all respect to representations made by the Foreign Office, I believe it was because Russia did not think at that moment we were prepared to make those matters questions of hostility. As I have said, the extent to which the representations of a neutral would be respected by a belligerent will always depend on two circumstances—the power of the neutral to make itself felt, and the calculation of the belligerent as to whether the neutral is likely to turn belligerent. Now, apply those considerations to the case that I am supposing. Suppose an enemy Power endeavouring to stop all neutral ships bringing corn to the United Kingdom, no matter for what port destined, or to what merchant. Is it likely that the great neutral naval Powers of the world would consent to their ships being treated in that way? Is it not perfectly certain that they would make representations to which our enemy must undoubtedly listen; and therefore, even supposing the worst construction put on the law in this matter by our supposed enemy, I say that the influence of a neutral Power would be very great against the abuse of this doctrine. That is the position now.
But, my Lords, what will the position be if this Declaration is ratified? Take Articles 33 and 34, which have been so 364 often quoted and round which the controversy turns. Article 33 reads—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a Government Department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4).Then Article 34 runs—The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country, who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy …I want, first of all, to compare the words "or other place serving as a base for the armed forces of the enemy" with the words which they replace, "Some place of naval or military equipment in the occupation of the enemy." I have a complaint against the Foreign Office, that in their correspondence they have suggested, almost insinuated, that there is no material difference between these two forms of words. I maintain that there is very material difference indeed. Let us take a concrete case. Nobody doubts that Portsmouth is "a place of naval or military equipment," or that it is also "a place serving as a base for the armed forces of the enemy." But take Southampton. Who could possibly contend that Southampton was "a place of naval or military equipment"? But I can imagine many people contending that Southampton was "a place serving as a base for the armed forces of the enemy." Therefore I say that the Foreign Office have been somewhat misleading in the suggestions they have made that there has been no material change in the substitution of one set of words for the other.
I ask your Lordships not to look at this matter from the point of view of a Statesman in an armchair, or even from the point of view of international and Constitutional lawyers; look at it from the point of view of the enemy admiral or cruiser captain. In this connection I should like to fortify myself with another passage from Mr. McKinnon Wood. He says—What the critics seem to have overlooked entirely was that if we were at war what would concern us would be not our view, but the view of the enemy.365 With that I entirely agree. That is the whole question. What is the enemy's fleet there for? What is the main, the only, object of the admiral in charge? What are the only duties of the captains of the enemy cruisers? It is at all costs and hazards to damage this country in a maritime war. Therefore it is an essential part of his duty, so far as he possibly can, to keep supplies of foodstuffs out of this country. Therefore he will read in the largest possible sense the words—or other place serving as a base for the armed forces of the enemy.Put yourselves, my Lords, in the position of the enemy cruiser captain. Would not be contend that the whole of the Thames must be a "base serving for the armed forces of the enemy"? Would he not say the same of the Clyde? Remember that our Territorial Army would be mobilised. The cruiser captain, in these circumstances, will be absolutely bound to contend that every important port in the United Kingdom is a place serving as a base of supply for the armed forces of England at that moment. He may, perhaps, be proved to be wrong. The International Prize Court, When the case is brought to it, might give its decision against him. But how would that help us in a war? The war would be over. The Court of International Appeal will give its decision perhaps a year or two years after the war. It is not likely that the cruiser captain will be in the least influenced by what he may think will be the eventual decision of the International Court of Appeal. If his action assisted his Government in the prosecution of the war, they will indeed not visit it heavily on him if one or two years afterwards they have to pay some indemnity under the decision of the Court. of Appeal.
Now I come to the position of the neutral, and this is a point which has not received enough attention. I have endeavoured to show that as the law is at present a neutral Power can put great pressure on a belligerent Government if it abuses this doctrine of foodstuffs becoming absolute contraband. But if the neutral has signed this Declaration of London he can no longer put pressure on our supposed enemy. He may think that the enemy admirals are stretching the meaning of these Articles far beyond all reason, but he has signed the Declaration and ratified it. Diplomatic representations will be ignored by our enemy, and the 366 neutral Power will have, like ourselves, to be content with the decisions of the International Prize Court, which may be given a year or two after the termination oil the war. Therefore my answer to Lord Desart in respect to this matter is that this Declaration does put us definitely in a worse position than we are in now, even supposing the enemy were to declare all foodstuffs coming to this country to be absolute contraband. It seems to me that. it is not easy to disprove that proposition. Lord Desart has laid great stress on the fact that in such a war we have to depend on the food brought in our own ships and that unless we can protect our own sea-borne commerce by our own Navy we cannot get our salvation out of neutral bottoms. I cordially concur with the noble Earl. If we cannot protect our own ships, if we cannot hold the command of the sea, we are not going to get salvation out of neutral bottoms. There I entirely concur with the noble Earl. But surely he goes much too far when, as the corollary of that doctrine, lie says it is of no importance at all that you should get any supply from neutral bottoms.
THE EARL OF DESART
I do not think I quite went as far as that. I said it would be of relatively small importance.
§ THE EARL OF SELBORNE
I am glad the noble Earl should have modified his statement. I certainly thought his first statement a very strong one, a startling one, because although I admit the importance to be only relative, yet I do say that it is to the interests of this country in war to get all the foodstuffs we can by neutral bottoms. Supply by neutral bottoms might be of great importance, and anything we do to make that supply more precarious is unnecessarily handicapping us in the conduct of a possible war in the future. If you admit that the supply of corn by neutral bottoms, in addition to the supply coming in our own ships, if you once admit that supply to be of great importance—though relatively of small importance compared with that which is brought by our own shipping—I think your Lordships must see that this Declaration goes very far to make that source of supply precarious. Let me read Article 40—A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo.367 That is the position. Now, a cargo of wheat, for example, invariably forms more than half of the weight or the freight; it generally forms the whole freight of a cargo of one ship. The neutral ship, therefore, carrying a cargo of wheat to England in time of war will, if this Declaration is ratified, not only be liable to have the cargo seized, but the ship herself will be liable to be seized and condemned, because, in the opinion of the cruiser captain, coining to Glasgow, Bristol, Southampton, or the Thames she is necessarily coming to a place that is "a base of supply for the armed forces of the enemy." The owners of neutral ships would necessarily consider very carefully, therefore, before they ran such risks.
My Lords, I should like to say a word or two about the Miscellaneous Paper No. 2, 1911, which has just been circulated by the Foreign Office. This is a reprint of the correspondence which took place in 1885 in respect of the treatment of rice as contraband. It is correspondence between Lord Granville and the French Government, and there are some rather remarkable features in it. A good deal of the Foreign Office case is based on that correspondence, and the arguments of the French Government, quoting British authorities, is certainly rather powerful. I want to draw the attention of the noble Viscount the President of the Council particularly to this fact. M. Waddington, the French Ambassador, in his despatch of March 10, 1885, quotes as part of his authority what the Attorney-General said in the House of Commons in March, 1854, and what Mr. Gladstone said in July, 1870, quoting Lord Malmesbury in 1859. These quotations were translated into French at the French Foreign Office, and now our Foreign Office have retranslated M. Waddington's despatch into English; and it is interesting to see what correspondence there is between the original extracts from Hansard and the Foreign Office retranslation of the French translation of Hansard.
I will read first the Foreign Office re-translation of the French version of what the Attorney-General said in 1854Contraband of War may in general be classed as follows, in two categories:368 I will now quote what the Attorney-General really said—
- 1. Articles which, by their nature, are of direct use in war, such as arms and ammunition.
- 2. Articles which may be of indirect use in war, by permitting a continuation of hostilities, such as provisions."A recent most able treatise on International Law, which occupied thirty-four closely-printed pages, substantially classified contraband of war under two heads—So that "which might be intended for the furtherance of war, such as provisions," becomes now "by permitting a continuation of hostilities, such as provisions." Does not the noble Viscount think that just a little "sloppy"?
- 1. Such things as from their very nature were applicable to the purposes of war, such as arms and ammunition; and
- 2. Such things as were capable of being applied to other purposes besides those of war, but which might be intended for the furtherance of war, such as provisions."
This is the Foreign Office version of what Mr. Gladstone said in the House of Commons on July 21, 1870, when quoting an extract from an official letter of Lord Malmesbury, dated May 18, 1859—I should state that Her Majesty's Proclamation does not specify—and could not, in fact, specify—what articles are or are not contraband of war; and Oct the passages relating to contraband of war are not intended to prevent the export of coal, nor of any other article, but simply to warn Her Majesty's subjects that if they convey, for the use of either belligerent, articles which are held to be contraband of war, and if their property be seized by either belligerent, Her Majesty's Government will not take upon itself to intervene on their behalf against a seizure of this kind, or against its consequences. I should add that the Prize Court of the country which has made the seizure is competent to decide the case.The real quotation taken from Hansard is as follows—I am to state to you, in reply, that Her Majesty's Proclamation does not specify, and could not properly specify, what articles are or are not contraband of war, and that the passages therein referring to contraband are intended not to prohibit the exportation of coal or any other article, but to warn Her Majesty's subjects that if they do carry, for the use of one belligerent, articles which are contraband of war, and their property be captured by another belligerent, Her Majesty's Government will not undertake to interfere in their favour against such capture or its consequences. I am to add that the Prize Court of the captor is the competent Tribunal to decide whether coal is or is not contraband of war.''Now. I protest that there is a real difference, considering the care with which language is chosen under such circumstances and in dealing with such cases, there is a real distinction of meaning involved here; and although the noble Viscount objects to a phrase that is not his own I suggest that 369 "sloppiness" has almost become "a mess" in this case.
I have pointed out the difficulty, the danger almost, which appears to me to be involved in some of the Articles of this Declaration in respect of food supplies to the United Kingdom in time of war. But there are other parts of the Empire to be considered, and it does not seem to me that our representatives at this Conference did consider the effect of these provisions on other parts of the Empire. I will take the case of South Africa, which I know best. I draw your Lordships' attention to the phrase about foodstuffs becoming contraband if going to a place serving as a base for the armed forces of the enemy. Take the case of South Africa, which might be seriously involved in a war in which the Empire was engaged. It will certainly be argued that foodstuffs cannot go to any port in South Africa that is not "a base for the armed forces of the enemy." There are only two railway systems in British South Africa, the one that goes North by Natal from Durban and the other that goes North by Cape Colony from East London, Port Elizabeth, and Capetown. It is impossible for the armed forces of this country in any part of South Africa to be supplied from any other British ports; and it is certain—it is not a matter of hypothesis—that the cruiser admiral or captain would claim that foodstuffs going to these ports in South Africa were beyond all question going to places serving as "a base for the armed forces of the enemy."
I do not wonder that a representation has been made from Australia, where a somewhat similar case may arise. And here I should like to make a confession of faith. Sir Edward Grey, in answering a question in the House of Commons as to why lie had not consulted the Dominions upon this question, said he was going to do so, but it had not been practicable at an earlier stage. Now, that answer is one which, I admit, would have been given by any Government previous to this one. My confession of faith is this—that the time has cone by when an answer of that kind ought to be given. In a matter affecting the interests of the Empire as a whole no Government in this country ought to frame an agreement with foreign Powers and commit themselves to that agreement before taking into consultation the Dominions overseas. This Government has acted 370 otherwise. So far as I have ally influence, I will never be a party to such action by a Government of which I am a member. I know that the policy I have advocated is a breach of the traditions of the Foreign Office and that there are difficulties, but in my opinion it is perfectly impossible to carry with us the moral support and confidence of the Dominions if any longer we make these agreements or commit ourselves to them without consulting them. Therefore, while I am glad that His Majesty's Government are about to consult the Dominions at the forthcoming Imperial Conference, my contention is that it was practicable for them to have done so at an earlier stage, and that they ought to have done it at an earlier stage.
My Lords, I shall not attempt to deal with the effect of the Declaration upon the conduct of a naval war. There is only one authority, in my opinion, competent to give an opinion about that, and that is the Board of Admiralty. Lord Desart had as his colleagues at this Conference two distinguished naval officers—friends of my own whom I hold in great respect. But they are not the Board of Admiralty, and it was because they did not necessarily represent the views of the Board of Admiralty that I put the Question to-day to the Lord President of the Council. I asked him whether he could lay upon the Table the views of the Board of Admiralty. I understood from his reply three things. First, that the Government have formally consulted the Board of Admiralty; secondly, that the Government do not consider it compatible with the public interest to lay the opinion of the Board of Admiralty in extenso before Parliament; and, thirdly, that the opinion of the Board of Admiralty might be summarised thus: that in existing circumstances the effect of the Declaration of London and the establishment of an International Prize Court on the conduct of a naval war would be small and inconsiderable. I am glad the Government have consulted the Board of Admiralty, but I think they ought to have done it before.
§ THE EARL OF SELBORNE
Of course, if the noble Viscount tells me they were consulted before the Declaration was signed, that is a complete answer to my criticism.
§ VISCOUNT MORLEY OF BLACKBURN
No, I did not say that. To tell the truth, I do not know, being a new-comer. I did not say what time. My answer was not what time they were consulted, so it is immaterial.
§ THE EARL OF SELBORNE
I do not think this adhesion of the Board of Admiralty can be called very enthusiastic, but if they were consulted before the Declaration was signed, of course that particular criticism falls to the ground. If they were consulted at the right moment their opinion necessarily had great weight with the Government. But supposing they were not consulted any more than the overseas Dominions were consulted before the Declaration was signed, then I must say that the Government were not justified in signing the Declaration and that their conduct is inexplicable. It is absolutely essential that the Board of Admiralty should have been consulted, because on them and on them alone will rest the responsibility for the conduct of a naval war, if a naval war unhappily should arise.
I end, as I began, by admitting the extreme difficulty and complexity of the whole question. I have not dogmatised on the matter, but I have endeavoured to show how real and grave are the doubts which beset many of us in this House, and which doubts are reflected in public opinion in the country. It is not confined to our side, but spread over a very large section of the mercantile community. I understand what Lord Desart would have us do. He believes that the Declaration preponderates with advantage to us, and he thinks that any failure to ratify it now would be unfortunate in its consequences 372 in the estimation of other Powers. But in my opinion the Government did not realise, nor did Lord Desart, with all his skill, realise, all the questions and difficulties that lay within the compass of this most complex problem. If they had done so, they would have given a greater opportunity to the interests most affected in this country to make themselves heard, and to themselves to think out the questions in consultation with the Board of Admiralty and the Governments of the Oversea Dominions before committing this country so deeply as, apparently, they have done. They have now agreed to wait to have this matter discussed by the Imperial Conference, and surely it would not be inconsistent with the dignity of the Government, and it would be wholly consonant with the interests of this country, if the Government would utilise the time between now and the Imperial Conference by allowing the question to he freshly considered by some competent body of persons with impartial views who have not already taken part in the controversy. My noble friend behind me suggested a Royal Commission. I have not considered that proposal myself; it is new to me; but it is an admirable illustration of my contention and my plea that the Government should not put their foot down. We may be wrong, my fears may be groundless, but the step, once taken, cannot be retraced. I would plead for further consideration, and that the Government should not reject all suggestions for probing this question to the bottom.
§ On Question, further debate adjourned till To-morrow.
§ House adjourned at twenty minutes before Eight o'clock, till Tomorrow, half-past Ten o'clock.