HL Deb 09 March 1911 vol 7 cc376-420

Debate on the Motion of the Lord Desborough 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 resumed (according to order).


Your Lordships have heard already enough in this debate to satisfy you that the subject-matter of it is of great complication and also of great delicacy. It covers a very wide field. There is, one might say, almost a literature connected with each of the controverted topics, and there has been a great deal of discussion out of doors—a great deal of natural and reasonable discussion. I think I am not wrong in saying also that there has been some mischievous and unfair criticism of this document. I recognise the impartial spirit in which the noble Earl, Lord Selborne, on behalf of the Opposition, treated this matter. I think he must be aware as well as any of us that those responsible members of either House of Parliament who speak upon this subject are liable to have their words quoted, possibly in some future discussions between this and other countries, as admitting propositions unfavourable to the interests of our own country; and I would respectfully suggest to noble Lords who intend to speak, if they will allow me to do so with great respect, that we all of us should be very careful, however strongly we may feel in a hostile sense to any of the provisions of this Declaration, so to express ourselves as not to give a handle that may be laid hold of against our national interests.

The real question here, so far as this Declaration is concerned, is this—when nations are fighting on the great highway of the ocean, on what conditions are neutrals to be protected—what are the rights that are to be allowed to neutrals when they are in the midst of a scuffle of fighting forces on the great highway of the world? it may be asked, Why was any agreement needed at all? The answer is to be found in the history of the last 120 or 130 years, which I need not say I do not intend to inflict upon your Lordships, but to which I shall refer with the utmost brevity. In the old times the British Navy enforced belligerent rights with great strictness, and there were constant protests. Your Lordships will remember the two armed neutralities and also the war with the United. States in 1812, and, further, that this country was obliged from time to time itself to make concessions or departures from the extreme rights which it had asserted, because they were intolerable to many other nations. We were fighting at that time for our existence., and we held on to those rules so long as we could. By the end of the Napoleonic wars one thing was clear, and that was that each nation was its own judge so far as international law was concerned, and interpreted its own laws by its Prize Courts without appeal, causing an immense variety and. conflict of different opinions in different countries. Also a Code of Maritime Law had been constructed under the conditions of British naval supremacy which bore very severely upon neutrals. This was throughout dissented from by a great number of nations, and there were vehement protests from time to time.

Gradually during the nineteenth century Great Britain began to feel that she had an interest as a neutral Power as well as an interest as a belligerent, upon which we dwelt during the great stress of the Napoleonic wars. That first found expression in 1856, when the Declaration of Paris was agreed to, which gave effect to the rule of free ships and free goods and also abolished privateering. I will not enter for a moment upon the merits of that Declaration. Whether we were right or wrong to enter upon it, it was a concession—an inevitable concession—by this country to the strain and stress of foreign and neutral Powers against the code of laws which we had before established. Then came other wars—the American Civil War, the Franco-German War, the South African War, and the Russo-Japanese War, some of which were fertile in, all of which gave occasion to, disputes in regard to the problems of maritime law and neutrality. We found a great variety of opinion, each State being a law to itself, with an inevitable succession of conflicts threatening at times to involve actual collision between the belligerents and neutral Powers.

The last and most important of these wars for this purpose was the Russo-Japanese War within the last few years. We were then neutral. There was immense complaint on the part of our merchants against the conduct of Russia, one of the belligerents, because Russia asserted a law differing from that which we had explicitly recognised, and determined, as we had always done in the past, that the law of Russia should be applied in her own Courts without any appeal. Members of the late Cabinet will recollect, I have no doubt, disputes about various ships, the names of which I have forgotten, which were destroyed. Neutral ships carrying contraband were destroyed, and were not taken into port for adjudication. Our Government complained about it. The Russians stood firm. What was the alternative presented to us in the years 1904 and 1905? Either to drop our complaints without compensation to our merchants, or to have recourse to the arbitrament of war. It was in those circumstances that the commercial classes of this country began to realise more fully a sense of that which had been gradually growing, that we had interests as neutrals, by reason of our vast commerce, exceeding by far the interests of other countries—interests which could not be disregarded in considering what the law ought to be on a subject like this. The theme upon which our commercial men chiefly dwelt on that occasion was the uncertainty of the law. The men whom we wish to protect are those who have innocent commercial enterprises in hand. It is legitimate to run a blockade, it is legitimate to take the risk of carrying contraband; but you do it knowing the risk. While, of course, we ought to see that the interests of our merchants who do that are fairly treated, they are comparatively few in number, and our real and main interest is that those who wish peaceably to carry on their trade with a belligerent country should know without controversy what goods they can carry and what class of goods they should avoid.

In those circumstances there were these doubts and difficulties: in the first place, each nation was a law to itself in its own Prize Courts, and secondly. the law they applied was doubtful and uncertain, and the consequence was perplexity and embarrassment to our traders. That being so, the first thing was to secure an International Prize Court. We have done so under the twelfth Convention. At present, any nation has its own Prize Courts without appeal. We have now secured a right of appeal. It is clearly an advantage to us if we are neutral, as the illustration of Russia in the Japanese war shows. We can trust a tribunal of even comparatively disinterested nations rather than of a nation at war and perhaps fighting for its life; and if we are to get this advantage, by what right are we to refuse it to other nations? When we are at war we shall then be a nation interfering with neutrals and liable to their pressure in the midst of our own great difficulties. What should we do? We should often do what we did in the case of the Bundesrath during the South African War. We should give way, even though the seizure were justified, in our opinion, by law. We should give way in order to avoid complication and difficulty, even if we were right. Now we shall have an opportunity of saying, after the Declaration has been ratified, that we prefer to go before the International Prize Court, and then we shall get our rights. Our only disadvantage is the possibility of a perverse judgment from this new Court. I do not think we are likely to have a perverse judgment from nations which are not interested in the quarrel which is going on. I think we are more likely to have a fair judgment than from the Court of a belligerent nation. There was one observation made by my noble friend Lord Desborough which I think he could not quite intend with regard to this International Prize Court. He said that the Court would make the law. But what are the words of the Convention?


I think I said that M. Renault had appended to that Convention a very similar Report to that which he appended to the Declaration of London, and that in his Report he distinctly stated that the Court was to make the law. It is not in the Convention I know, but it is in the Report, and it was for that reason that I was anxious to know whether M. Renault's Report was to be taken authoritatively.


I am sorry I do not know the passage in the Report to which the noble Lord has referred, but I am quite sure the noble Lord's statement is made in entire good faith. But these are the words of the seventh Article— If a question of law to be decided is governed by a Treaty in force between the belligerent captor and a Power which is itself, or the subject or citizen of which is, party to the proceedings, the Court is governed by the provisions of the said Treaty. In the absence of such provisions the Court shall apply the rules of international law. If no generally recognised rule exists the Court shall give judgment in accordance with the general principles of justice and equity. I do not think anybody could ask for a fairer rule.

Having settled in the Convention that there shall be an International Prize Court, the next thing was to try and raise from chaos into something like order the rules which this Court was to apply upon disputed points, and to ascertain and amend doubtful points of international law. That is what has been done in this Declaration, so far as we could prevail upon other nations to agree. You cannot compel people to agree, but you can try, and meet, and see if you cannot come to some common principle.

I am happy to think that of all the proposals made in this Declaration—and they are numerous—there are very few that are really objected to. Let me deal with them one by one. Complaint has been made of the rules laid down to govern blockade. Let me shortly tell your Lordships what the old English rule was and how far we have given way and how far other nations have given way. The old English rule was that you could seize a neutral ship at any point on the voyage to the blockaded port, and if she was coming out of the blockaded port you could seize her at any time until she reached a neutral port. Some Powers held that you must actually inscribe the notice of blockade on the ship's papers before you capture her. In other words, that she can have what the English law gives to every dog, one worry, before she is regarded as a ship liable to capture. That is making blockade illusory. Other Powers held the rule that you must have a line laid down, and a ship could not be captured unless she was clearly about to cross that line. That also tended to make blockade illusory.

The Declaration proposes that no notice need be inscribed on the ship's papers and that knowledge of blockade alone, however acquired, is sufficient. That was our rule. But it says that the offending vessel must be captured by a ship of the blockading force which may pursue her. You may have swift ships outside the port; two or three lines of the blockading force; outlying ships notified by wireless telegraphy, which may pursue her. Under the Declaration they may pursue her as far as a neutral port to say the least of it. In substance this is the old English rule with a very slight alteration. We give up, it is true, the right of capture at any point in the voyage to the blockaded port, which is a very small matter. How small a matter it is I will give your Lordships the means of judging, because I am informed by the Foreign Office, and no doubt it is true, that out of the eighty-eight reported cases in the legal annals of this country which relate to blockade there is not one in which this point arose. How insignificant, how unimportant, this point is, and how almost completely we have got our own way on the subject of blockade I have endeavoured to show.

Let me come to the next point in the Declaration—that dealing with contraband. The differences on this subject between the different Powers are extremely serious. We have, as I have said, the experience of the: Russo-Japanese war when many British ships were captured, and there was loud complaint in England and some of the Chambers of Commerce informed the Government that it had been found in many quarters necessary to give up trading with Japan by reason of the action of the Russian Government and her cruisers. Accordingly our great point was to make it as clear as we could what was not contraband in any circumstances, what was contraband in certain special circumstances, and what might always be treated as contraband, so as to enable merchants to know what they could and could not ship safely. There is a list of free goods agreed to in the Declaration which gives absolute security so far as that list goes. There is also a list of absolute contraband. There cannot be objection made to that, because it nearly all consists of gunpowder, arms, saddlery, and things exclusively used for the purposes of war. The meaning of the rules which I summarise throughout because it would take me hours to read every word is this. The neutral ships must not carry belligerent implements or materials of war specified in the list, but, considering the advance of science and the possibility of new discoveries, belligerents may add by public declaration and notification to that list other articles, provided that they are articles exclusively used in war. Accordingly our merchants will know very well what to avoid if they are going to deliver goods in belligerent countries.

I now come to conditional contraband—that is to say, contraband only in special circumstances. Goods susceptible for use in war, as well as for the purposes of peace, will always be regarded as being possibly and sometimes treated as contraband. There is a list, also, of conditional contraband provided in the Declaration. So far as I have heard in this debate, and so far as I know, although I do not pretend to be as diligent a student of the newspaper Press as perhaps I ought to be, there is no complaint as to any article included in that list except foodstuffs—a most important article, of course, I quite agree, and one on which the whole of this controversy really turns. A great deal of complaint and clamour, and, I venture respectfully to think, not always very well-informed or well-instructed clamour, has arisen because we have agreed in this list that foodstuffs may in certain circumstances be regarded and treated as contraband of war. People speak as if it is the final abandonment by this country of all the principles that we have insisted upon. Great Britain has always treated foodstuffs as being conditional contraband—that is to say, as being matter which may or may not be contraband according to the circumstances of the case. No one who knows the subject will question that. So have all other countries. You can perfectly well imagine that in some circumstances the supply of food to an enemy may save his army from utter destruction, and may be of far more assistance to him and more prejudicial to the other belligerent than the supply of any number of pistols, rifles, and ammunition of war.

The difference between us and other countries with regard to the treatment of foodstuffs has been very wide and marked, but it has not been with regard to the right to treat foodstuffs as conditional contraband, but as to the circumstances in which foodstuffs can be so treated. There is history connected with this branch of the subject. As I understand the documents, Blue-books and historical accounts, France, Germany and Russia have at times asserted that foodstuffs were liable to be seized under all circumstances—not any special circumstances, but in all circumstances—to whatever port they were destined if they were destined to a belligerent port. That would be most dangerous indeed to the interests of this country if it were allowed, because we are dependent more than any other nation in the world upon imported food. The British rule was that foodstuffs could be captured only if their destination was in effect to help the fighting forces of the belligerent. I think myself, and I hope your Lordships who have studied the documents will consider, that the Declaration does in very little depart from the British rule adapted to modern circumstances.

Let me summarise the effect of Articles 33 and 34 to which Lord Selborne drew particular attention, and which, indeed, I admit are of great moment in connection with this subject. Henceforth foodstuffs are free unless they come within Articles 33 and 34. They are contraband if they come within 33 and 34. They are contraband if they are destined for the use of the armed forces of the enemy or of a Government Department of the enemy State. And according to the Declaration they are presumed, though the contrary may be proved, to be so destined if they are consigned to the enemy authorities or consigned to a trader established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. It has been pointed out that supplying articles of this kind to the enemy may mean to the individual enemy and not to the enemy Government. Sir Edward Grey has stated that when we ratify this Declaration we shall make it clear that all we agreed to is that it should mean "supplied to the enemy Government." Food supplies are also, under the Declaration, presumed to be contraband if they are consigned to a fortified place belonging to the enemy or to another place serving as a base for the armed forces of the enemy.

I will advert in one moment to the phrase that was commented upon, "base for the armed forces of the enemy," but is not that on the whole very near the English rule as regards foodstuffs being treated as contraband of war, subject only to the point made about the words, "a base for the armed forces of the enemy"? In my opinion that does not, and cannot, apply in the case of our being at war, to all the ports in England, as one noble Lord suggested it would. It cannot so apply, and when he asks us to give an illustration. I say for instance the port of Bristol. But may I take this attitude, which I believe your Lordships will accept and will assent to? I do not think it is possible to say, "serving as a base for the armed forces of the enemy" would enable an enemy to treat all the ports of England as a base for our armed forces, otherwise it would reduce the Articles to an absurdity. And I do hope that no one of your Lordships, or no responsible writer in this country, will give countenance to an idea of that kind in any speech he may make or any letter he may write.


The report distinctly states "base of supply." That is a very important point. The original document is enlarged into "base of supply," not merely "armed place."


I think your Lordships would not desire or think it appropriate that I should enter upon a legal argument upon that subject before your Lordships. I ask you to accept as my opinion, about which I entertain no real doubt, that you could not treat any port, except ports which are actually magazines for war or actually places of equipment for war, as being within the term "base for the armed forces of the enemy."

Let me pass on, on the subject of contraband, to the only other point that remains. Some nations, notably America, have asserted that if the ultimate destination of a cargo of food or other conditional contraband is to the enemy, you may seize it even if its primary destination is a neutral port. An illustration may be given. Supposing, for example, we were, which Heaven forbid we ever should be, engaged in a war against Germany. According to the American doctrine, which was applied in their Civil War, you might stop conditional contraband destined for Germany which was to be delivered in the first instance at Rotterdam. The British rule has never been clearly defined, although we acquiesced in practice during the American Civil War in the American doctrine. The Declaration of London abolishes this doctrine, which is known as the doctrine of continuous voyage, for conditional contraband—that is to say, for food—and establishes it for absolute contraband. Were we right in agreeing to this in the first place, it was difficult for us if we wished to oppose it, because we could not say absolutely that it was contrary to the British rule. But ought we to resist it? Is it to our disadvantage? We are more in need of foreign supplies of food than any nation in the world.

The Declaration in this particular facilitates the supply of food through a neutral port. Suppose we were at war with Germany. Food could come from America under the Declaration of Paris quite free 'and safe to a French port and be run across the Channel, even if we had lost command of the sea—or, at least, it would have a chance of running across the Channel. I admit, on the other hand, that food could be safely supplied to Germany through Rotterdam under this Declaration. Which stands to gain most by the Declaration facilitating this kind of trade? I say Great Britain stands to gain most, because we are more dependent upon foreign food, and because we cannot, and Germany can, get food supplies by land transit across her frontiers. The Declaration of Paris in this respect can be no more than convenient to Germany. It may be absolutely vital for our advantage. Let me take another illustration, because a great deal of attack has been levelled against this part of the Declaration. Let me again suppose that we are at war with Germany. A ship laden with food starts from America for one of the belligerent countries, Great Britain. Suppose her bound for Bristol. If you reject the Declaration, Germany might claim to seize her on her way. If you accept the Declaration, Germany could not seize her. But suppose she is bound for Havre, a neutral port. If you reject the Declaration, Germany might seize her under the doctrine of continuous voyage. If you accept the Declaration, Germany could not seize her, because she was destined for Havre, which is a neutral port. I think this is distinctly in our favour if we are belligerents; and it is admittedly in our favour if we are neutrals, because it enlarges our opportunity of trade and commerce.

I pass now to the destruction of neutral prizes, which has been the subject of attack by many people. All nations assert the right to destroy neutral prizes, if they find they cannot take them into a port, except Great Britain, Japan, Spain, and Holland. That is the law which they would apply in their Prize Courts if you reject this Declaration. Even the record of Great Britain is not quite clear upon this subject of the destruction of neutral ships. The Declaration allows it, but allows it subject to distinct conditions. The ship may be destroyed if the observance of Article 48—that means taking her into a port for adjudication—would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time. Supposing we reject this Declaration. Our enemy would destroy neutral prizes at discretion, without any limitation at all, acting upon her own law. But suppose that we are neutral and our merchant ships are destroyed? This actually happened, as we know, in the Russo-Japanese war. We were then put to the choice I have referred to, either of allowing the incident to pass uncompensated, or of having recourse to war with Russia. Of course, the late Government, like sensible men, never thought of making that a subject of a declaration of war. If that happened again after this Declaration has been ratified Russia would have to submit to the International Court and to pay compensation if she was found to be wrong. These are the only points in this Declaration which have been made, I think, the subject of attack in this House, and they are the chief points, almost the only material points, which are attacked in the campaign outside this House.

The noble Lord, Lord Desborough, complained that no provision appears in the Declaration to deal with the difficult point of the conversion of merchant ships into war vessels on the high seas. Nations differ upon this subject, and it was found impossible to arrive at an agreement. We should have liked to have arrived at an agreement very much, but we could not because other people would not agree to it. Is it not a strange subject of complaint that having done our best to agree with other nations, we found that other nations were not willing to agree with us? The only real point is this, whether, being unable to get agreement upon this point, and therefore being obliged to leave the point in the chaos of uncertainty and obscurity in which it now rests, we were to refuse to agree to all the other terms which the other Powers were willing to give us? That is the point.

Now what does it all come to? So far as this Declaration touches the law we gain certainty for our shipowners and our merchants by laying down rules which, if they are observed, can make their commerce safe. Then, do we pay too high a price for it? Every one will agree that certainty of that kind is a very desirable thing if we do not pay too high a price. I have endeavoured to show your Lordships. by examining point by point the different changes that have been made, that as a whole we have not lost but actually gained. It has not been for us to consider what price we would pay. There has been no price paid. It is a profit and not a payment of price. We submit decisions of our own Courts to an international tribunal. That is true. My Lords, that only affects cases in which we have captured or arrested neutral vessels. Even if the international tribunal were biassed—an assumption which, I hope. will not be made in regard to all the great nations of the world—the subjects that the International Prize Court can deal with are not of such magnitude that they can vitally affect us. My noble friend Lord Desart said, in his admirable speech, much upon that point which was well worthy of reflection. On the other hand, whenever our vessels, being neutral, are captured or arrested, we have an appeal from the belligerent Prize Court to the International Court, which we did not have before, and in either case, seeing that the great source of difficulty and embarrassment has been the friction arising between a belligerent and a neutral, it must be remembered that we have the means under this Declaration of avoiding friction with nations with which we are at peace, by referring disputes between us to this international tribunal. We also obtain by the Declaration the law which all Prize Courts are to administer. In regard to blockades we get substantially, I think, our own law. In regard to contraband we get better security for our food supplies than we might or probably should have had if foreign nations had been left to apply their own law. And in regard to the destruction of neutral ships we make a doubtful concession, having regard to our own previous practice, but we limit the rights now asserted by nearly all the Powers of the world.

I would ask your Lordships to bear in mind that we are not the only nation in the world. We are not the only maritime or commercial nation in the world. If we wish, as some writers apparently desire that we should, to stand by our own law even to the last jot and tittle, if we are to refuse such concessions in return for the advantages which I have endeavoured to place before your Lordships, if we are to do that after we have ourselves been the people to invite the consideration of other nations, it would be treated as a defiance of the opinion of the world. It means an attitude of obstinacy and hostility; and although I am, and I hope always shall be, ready to vote the necessary supplies for the defence of this country, I am not sure that everybody would be ready to vote the necessary supplies if we are to take up the attitude which in some quarters we are asked to take up, instead of an attitude of reasonable, sensible, fair adjustment of difficulties. The other course is to agree with our neighbours all over the world and to remember that the points in difference, if you examine them, do not really as practical matters come to anything very great.


My Lords, the noble and learned Lord has given a note of warning that we must not discuss the construction of the Declaration lest we should put arguments in the mouth of our antagonists. It is very difficult to discuss the propriety or impropriety of any of the Articles without knowing the construction that is to be placed upon them, and it will be difficult to show their injurious effect upon this country. The Motion, I would remind the House, is not a Motion to reject the Declaration, but seeks to establish a Royal Commission that this and other matters may be freely discussed before the very serious decision is taken of ratifying it. One of the most important parts of this question appears not to have been brought to the noble and learned Lord's attention, for lie attempted to correct Lord Desborough in his statement that this international Prize Court will make the law. What Lord Desborough said is perfectly accurate. M. Renault's Report is treated by the Secretary of State as well as in the Papers which accompany the Declaration as an authoritative document. Let me read to the noble and learned Lord what M. Renault says— This international Prize Court is called upon to make the law …


What is the page?


I have not got the original here, but only a copy. There is, however, no doubt about the fact. The Court is to have no system of proofs, but is to "appreciate," whatever that means. Of all statements the boldest I have ever heard is that by this Declaration you will gain certainty in the law. Than this Declaration, and in face of the Report of M. Renault, I cannot understand anything more unlikely to secure certainty. Are we or are we not to have a new system of international law Is it to be that the new International Prize Court is not to be bound by three centuries of legal decisions, and that there is to be administered a new system of jurisprudence of which we have never heard before? It seems to me that we are now for the first time abandoning all those principles which have hitherto guided us and are making the Declaration of London the sole authority for the International Court. We must disregard the authority of Grotius, of whom Hallam said that his work created a new epoch, of Story, of Pufendorf, of Bynkershoek, of Sir William Scott, afterwards Lord Stowell, and others. I deprecate that very much. It seems to me that we must first of all ascertain whether this accompanying document is or is not a part of the Declaration, because in the opinion of many persons it is a document which appears to modify the Declaration of London. A question to this effect has been asked, but I do not find that any answer has been given to it.


I would like to know the page reference to the document to which the noble Earl refers. I may say, however, that I agree with the answer given by Mr. McKinnon Wood in the House of Commons and by Lord Desart that it is an official commentary which would be regarded by any Court which would have the Convention before it. I think that the Convention is perfectly clear, for it says that the Court has to recognise the rules of international law.


I am glad to have that explanation, though I fear that it is not satisfactory. What I want to know is what is the nature of this document and whether it is to be accepted as being authoritative or not? The question has not been answered whether or not it is to be a part of the Declaration of London and what that Declaration is expected to include. But what seems to me to be important is to know the system of law to be administered. I gather from the noble and learned Lord that the ordinary principles of international law are to be applied; but what about the proofs? Apparently there are to be no legal proofs and the Court itself must appreciate what is put before it. But I do not know what that procedure is to be, not what the proofs are to be. Are they to be the ordinary proofs required in International Courts, and, if so, what is the meaning of the disclaimers of proofs?

In my view the whole tone of this Declaration is very hostile to whatever Power in the world happens to be the great naval Power; and at present, at all events, Great Britain is that Power. The noble and learned Lord has truly said that our peculiar position as an island makes us particularly sensitive to any abridgment of our powers of supply; and the question is whether the Declaration we are asked to sanction does or does not assist us. The case of Bristol has been quoted. The great difference between that which is laid down in the Declaration of London and that which was the law before is that by and in language reasonably clear foodstuffs could only be made contraband of war when intended to be supplied to a fort or to some place in actual military occupation and forming part, as it were, of the occupying military forces of the country. Now the Declaration of London has altered that; and any place which is a place of supply to the enemy is itself made a destination which would render foodstuffs absolute contraband of war. In the circumstances, what would Bristol be? There would hardly be a more likely place for a military force, and if there was a military force in Bristol it would be within this Declaration. Instead of being really and truly a case of preventing supplies going to a military force it would be applicable to the whole civil population, and whatever might be the exigencies of the civil population in respect of food, yet because the food was going to Bristol which might form a base for military occupation, it would be within the Declaration of London.

I think that the noble and learned Lord has overstated what the old rule was. It has never been admitted that foodstuffs were an absolute contraband of war, and Lord Granville protested against that view in the most energetic manner. If one goes through the different things that are altered by the Declaration it is impossible not to observe that the tendency throughout has been against Great Britain and not in favour of Great Britain. Having gone through with great care the book written by Mr. Bowles—to my mind an extremely accurate account, not overstated—I find that it is pointed out with great force that on every occasion what Great Britain contended for has been overthrown. Great Britain, therefore, is in a very different position from what it formerly occupied. I do not propose to discuss the Declaration of Paris. But while I deny the sacro-sanctity of the Declaration of Paris or that it is impossible to get rid of it, I would observe that it was denounced by Mr. Bright, by Mr. John Stuart Mill, and other distinguished members of the Party to which the noble Viscount belongs.


It is quite true that Mr. Mill did demur to it on the very curious ground that the more horrible you made war the less you would have of it; but he afterwards withdrew that opinion.


I read Mr. Mill's denunciation but not his withdrawal. Then there is the question of the conversion of merchantmen into warships. That can be done at sea. Under former rules the fitting out was carried out at their own ports, but now merchant vessels can become warships during their voyage. If it happens to he fitted into a vessel which may serve as a warship it may lie in wait on a trade route and capture any ship it comes across. It may be said that that is to some extent affected by the Treaty of Paris, because it is in the nature of privateering. I do not think it would, but I will not argue that point lest I should be arguing something to the disadvantage of my own country. But, again, what is the good of doing that which certainly can do us no good and which may be the subject of very serious injury to this country?

It seems to me that the whole theory has been something in the nature of a belief that if war were made very polite it could be got rid of altogether. I do not believe anything of the sort. People who believe in peace and are very fond of giving way have the oddest possible mode of trying to procure peace. I remember a very excellent clergyman who went to put a stop to a prize fight arranged by a party of colliers. He was personally popular, but many of the colliers who did not like their fight interfered with were inclined to treat him very roughly. When that was seen, his parishioners determined that he should not be ill-treated, and the result was that. instead of the prize fight there was a riot of about 500 people, and I do not know how many were injured. This illustrates the method of people who are very fond of peace and believe in the perfect goodness of a human nature which I am afraid is too strong for them. I earnestly entreat the Lord Chancellor to consider the question of what law is to be administered and to give it the importance it deserves in considering whether we are or are not to look at M. Renault's Report as authoritative. If the Court is to "appreciate," whatever that means, and to determine not according to any fixed law, but according to their own views of what is to be done, so far from the Declaration leading to peace, I believe it to be one from which Great Britain may lose a great deal, while gaining nothing.


My Lords. I take it that the object of this Declaration is an attempt to codify as far as possible certain rules of international law. In so far as there are no Treaties binding the parties and no codification, it is obvious that the International Prize Court will apply the generally recognised rules of international law, and where no such rule exists the Court shall give judgment in accordance with the general principles of justice and equity. Article 7 of the Convention relative to the establishment of an International Prize Court imposes this procedure on the Court. We cannot expect to obtain from other Powers a complete assent to our own interpretation of the rules of international law. It is quite clear that we could not insist on concessions being made by other Powers which would cripple and paralyse their means of offence and defence, and which we ourselves should not make in a similar situation. Therefore, when we enter upon international negotiations on a question of tins kind we must be prepared to give and take and to make certain concessions. We have to choose between using our influence to obtain the best terms we can in this process of codification, or remain outside and see doctrines sanctioned by international conventions to which we are no parties, and to which we are opposed.

Let us suppose that we decline to ratify the Convention with regard to the International Prize Court, and that an International Prize Court is constituted on which we are not represented. The result would be that in the event of condemnation of one of our ships by a Prize Court of a belligerent when we were neutral, there would be no appeal. In addition, we should not be represented on the International Court, whereas if we took part in its proceedings it would obviously be the duty of our representative to insist as far as possible that those principles which have been so admirably laid down by our Prize Courts should be adopted by the International Prize Court. This Court will, of course, be composed of the best men who can be appointed by the various Governments who are entrusted with the selection, and this seems to me to give us every guarantee of that impartiality which at the present moment, when we are only liable to the jurisdiction of the Prize Court of the belligerent., we have not got. What has been our experience of Arbitration Courts in regard to the Venezuelan Claims, the Japanese House Tax, the Muscat Dhows, the North Atlantic Fisheries, and quite lately the Savarkar case? In all those cases the decision has been in our favour. There is no reason why the same result should not be anticipated when this international Prize Court is constituted on the same lines as the Arbitration Courts.

With regard to contraband, I am still of opinion that our proposal at the last Peace Conference to abolish it would have been the best solution. That proposal, which I had the honour, in accordance with our instructions, to submit to the Hague Conference, there met with the support of the majority, twenty-five Powers giving their adhesion. I am quite aware that the Powers who opposed it made it impossible for our delegates at the London Conference to insist again on this abolition. But I regret that in this Declaration the power given to a belligerent to add by notification to the list of absolute and conditional contraband is not made subject, to some limitations, for instance, it might have been considered whether the lists of absolute and conditional contraband should not have been left to a Committee of the Hague Conference for periodical revision. But I submit that the absolute contraband list, which is the same as that which we settled at the Hague, and especially the free list, offer very great advantages to us. On the free list appear a great many articles in which we are very much interested.

As to the rules for conditional contraband, neutral ships with a destination to neutral harbours cannot be captured. Therefore, if we are at war neutral ships will carry our supplies to neutral harbours in the vicinity of our shores, and thence we shall be able to protect them on their way to our harbours. We cannot rely only on neutral ships. We must rely on our own ships. in any case the question of our food supplies depends, and depends almost exclusively, on our superiority at sea and on keeping our lines of communication open. At the same time we shall derive this advantage, for instance in India, that in case of war neutral ships will be able to carry their supplies to Goa, whence India could easily be supplied; and if the United States are neutral, Canada would be supplied by her great neighbour. The doctrine of continuous voyage will in future, according to this Declaration, only apply to absolute contraband. I entirely agree with the argument used by my noble friend on the Cross Benches (Lord Desart) yesterday that the application of the doctrine of continuous voyage to conditional contraband, however logical it might be, would in practice offer such difficulties that it would prove useless. Besides the friction which would result from the application of the doctrine to neutral trade would rouse the hostility of neutral Powers at. a time when, of course, our object must be as much as possible to conciliate them. With regard to the destruction of neutral prizes, after all that has been said by my noble friend on the Cross Benches I will not go into the subject; but I agree with him that the conditions imposed by the Declaration will make it in most cases almost imperative on the commanding officer of a belligerent cruiser to dismiss the ship in order to avoid the risk of having to pay heavy compensation as a result of subsequent adjudication.

Now, with regard to the conversion of merchant vessels in time of war on the high seas, that has not been prohibited. We have maintained our objection to the process, but it is quite clear that at the present moment there is no rule in international law to which we could appeal in order to get our view incorporated in the Code. I would call the attention of the House to the fact that the Convention which is known as Convention No. 7, which we negotiated at the Hague, imposes many limitations on the conversion, and in any case excludes the possibility of privateering being revived. The noble and learned Earl who has just spoken admitted that the conversion was not affected by the Declaration of Paris. There is no reason to suppose that the converted merchant ships, if the conditions defined by the Convention are carried out, will not bebona fidemen-of-war. Moreover, the Preamble of the Convention states very definitely that— the question of the place where such conversion is effected remains outside the scope of this Agreement, and is in no way affected by the following rules. As the Declaration does not allude to this subject our attitude with regard to it is absolutely unprejudiced.

It seems to me that the objections urged against the Declaration are really objections directed against the whole policy of entering upon any negotiations with other Powers for the settlement of questions relating to international law. I think that the noble Earl and his colleagues have every reason to be satisfied with the results they have obtained at the Conference, especially with regard to blockade, unneutral service, transfer to a neutral flag, and compensation. When I compare the results which he has obtained and those which we were able to obtain at the Hague, and the gaps which he has filled in which were left open at the Hague, I think the progress made after such a short interval is very encouraging for further agreement on points which have been left open at the London Conferences; and I may inform the House that it is not only my opinion, but it is the opinion of my three colleagues at the Hague Conference—Sir Edward Fry, Sir Ernest Satow, and Sir Henry Howard—who are strongly in favour of the ratification of this Declaration. As to what has been said about M. Renault's Report, I think it will be desirable, if the Government wish that Report to be authoritative for the International Court, that it should also be ratified by us and the other Powers. There is a certain risk that without such ratification the International Court will look upon that document as interpreting what the intentions were of the delegates to the London Conference, but not as a document by which they are themselves bound in interpreting the Declaration of London. I submit that for the consideration of His Majesty's Government if it is their opinion that such authority should attach to the Report.

There are at present two currents—one in the direction of settlement of international disputes by international agreement; the other in the direction of increased armaments. We cannot ignore either without detriment to our national safety. If we abstain from joining these Conferences, or make settlement or compromise difficult, we cause irritation among nations with whom we ought to be on friendly terms. To repudiate this Declaration would undoubtedly constitute a very deplorable precedent, and render it more difficult hereafter for our representatives to obtain amendments—this instrument obviously is not perfect—amendments which we might on a future occasion desire to obtain. I cannot conceive a more impolitic step than the rejection of this Declaration and of the International Prize Court, after we have proposed the Prize Court at the Hague, and after we have invited other Powers in London to consider what the rules should be which this Court should observe in dealing with appeals brought before it.

A lurid picture is occasionally drawn of a conspiracy of the Continental Powers against us, and the delegates at the Hague, and now again our representatives at the London Conference, are accused of having surrendered important rights. I am sure that was not the impression of the foreign representatives, either at the Hague or at the London Conference. They were well aware that both at the Hague and London we vigorously maintained our rights, and only accepted such proposals as did not in any way weaken our means of offence or defence either as a belligerent or as a neutral. The Conventions of the Hague Conference and the London Declaration will enable us to vindicate our rights by means which at present we do not possess owing to the existing uncertainty of the law. What is that uncertainty? What did Mr. Royden, the Chairman of the Liverpool Steamship Owners' Association say on February 6? He said— International law as it now exists is little better than a farce and in too many cases justice cannot be obtained at the hands of the Prize Courts of the captors. That was the experience of British shipowners during the last war in the Far East, and to remove that uncertainty and to turn international law from a farce into a Code which can be understood and which can be enforced, has been the object of our representatives at the Hague and at the London Conferences. I trust your Lordships will be disposed to approve of the results they have been able to obtain after very exhaustive and protracted negotiations.


My Lords, we are deeply indebted to international lawyers for the pains they have taken in establishing Arbitration Courts to settle minor disputes between nations, so as to prevent nations drifting into war when tempers have become irritated about trifles. I congratulate the noble Earl on the Cross Benches on the results of his recent visit to The Hague. It is just on such occasions as that that international lawyers are able to render valuable service to their country. I wish them every success in their endeavours to improve commercial international law, and in every effort they may make towards insuring peaceful solutions of international disputes. But they exceed the legal limit when they try to dictate the rules of war. Then they get out of their depth.

International lawyers appear to have completely forgotten two ancient Roman maxims that I first heard of when a boy at school: Inter army silent leges,andSalus populi suprema lex. These two maxims have stood the test of hundreds of wars and of two thousand years of time, and will continue to be acted upon so long as human nature remains what it is. They knock the bottom out of the whole of the Declaration, of several of the Conventions that have been recently ratified, of the theory—the cruel theory that private property at sea ought to be considered more sacred than human life, and that it can be made so by Treaties. We have had distinct warning that Germany if hard pushed will treat this Declaration of London and the Conventions as a mere collection of pious opinions. For Baron Marshall von Bieberstein at the meeting of October 9, 1907, when discussing the question of automatic mines, distinctly stated— Les actes militaires ne sont pas régis uniquement par les stipulations du droit international. This straightforward and honest statement on the part of Germany shows that she, at any rate, will act on the principles laid down by the two Roman maxims that I have quoted, regardless of so-called international law.

I gathered from the answer by the Lord President of the Council that the Board of Admiralty had given an opinion to the effect that the establishment of an International Court of Appeal and of the Declaration of London would have hut a small and inconsiderable effect in the conduct of naval operations. Well, I have found that many naval officers hold similar opinions, but the reason why they hold them is that they believe that the Declaration of London will be flung into the sea directly hostilities commence, and that it will count for nothing in a life-and-death struggle between any two first-class Powers. If we keep up a strong Navy they think that all these deliberations and discussions between men who have studied law, but have neglected the study of war, will count for little. They consider that all the tangles in the Declaration caused by dubious wording will be eventually cut by the sword. Although I share this belief, I am still of opinion that the Declaration increases our chances of getting into difficulties with neutrals, and therefore that it would be better not to ratify it.

The Declaration of London might, perhaps, be treated with respect if war broke out between two small sea Powers like Greece and Turkey, whose ships would fight under the shadow of superior fleets; but no two first-class Powers would allow this Declaration to interfere with their prospects of success in a life-and-death struggle. Even if they pretended to act in accordance with it, they would make important reservations. Should we ever sit down and starve if we could bring food to Great Britain by tearing a sheet of paper to pieces? A belligerent is sure to justify his breaches of the Treaty by accusing his enemy of some technical breakage. I should like to have an answer to this question before the Treaty is ratified: If belligerent A disregards the Declaration, and, in consequence, obtains a considerable advantage over belligerent B, is the latter justified in disregarding it also as regards C and other neutrals? I am afraid that the answer would be that it is one of the numerous uncertainties of the Treaty.

International lawyers have done a great deal of mischief by taking upon themselves to interfere with the strategy and tactics of our naval campaigns. Before they even know who our adversaries are to be, or on what seas the conflict is to be waged, they have drawn up a series of Conventions, of which there will be but little left after they have been put to the test of war. Article 3, Chapter 2, of Convention 11, says that fishing boats and small vessels engaged in local trade are to be exempt from capture. This is a matter which may be safely left to the humanity and discretion of the naval officers in command. But the Convention goes on to say that— The contracting Powers bind themselves not to take advantage of the harmless character of these vessels in order to use them for military purposes while preserving their peaceful appearance. I can only say that if any of our Admirals relies on this paragraph to protect his ships he deserves to lose both his life and his fleet. It would in many cases be his duty to warn off all such vessels from the neighbourhood of his fleet under pain of instant destruction or capture.

In the olden days, when no cutter or lugger dared to approach a brig, when no brig dared go near a frigate, when no unsupported frigate ever voluntarily came within reach of the guns of a line-of-battle ship, such a Convention might have been workable. But nowadays weapons and tactics have changed. A vessel with the appearance of a fishing smack or local trader can sink a super-Dreadnought with her crew of 800 men on board. It will be found impossible to respect this Convention. Recollect that the North Sea is very foggy. Is not the case of our own seamen more worthy of sympathy than that of the enemy's fishermen? Recollect that those same seamen will be doing their utmost to save the country from starvation, and difficulties should not be thrown in their way by people who are foolish enough to think that they possess a monopoly of humanity.

Article 23 of Convention 13 allows prizes to enter neutral ports and to remain there pending the decision of the Prize Courts, so that any captured British ships, whether we ate at war or not, may be taken, say, to a South American port, and left there until judicial proceedings are ovt:r, which may last two years or more, instead of having to run the gauntlet of our numerous cruisers on her way to one of her own ports. This destroys all our chances of recapturing our own ships. I understand that Great Britain has reserved her assent to this Article, and I hope she will never give it. It renders nugatory all the advantages that we have hitherto derived front the possession of harbours in all parts of the globe. Convention No. 11, in Article 1, declares that postal correspondence, whether belonging to an enemy or a neutral, whether found on board a neutral or enemy ship, is inviolable, and is to be forwarded by the captor with the least possible delay. Imagine Nelson capturing despatches front Napoleon to Villeneuve and sending them on to him unopened "with the least possible delay" in his fastest frigate! Had he lived now, he would have been expected to do so. But I taller that he would have made use of his blind eye on such an occasion. History is full of stories of intercepted despatches and of the use made of them. Novels and plays have been written on the subject. But the exigencies of war as regards England were not sufficiently considered in this Convention by any but Continental Powers, who, being weak at sea but powerful on land, left their power to make use of such intercepted letters unimpaired when captured on land.

International lawyers have undertaken the impossible task of laying down rigid rules for warfare on an element that is restlessness personified. But sea tactics change every day, as fast as fresh inventions are made. Naval battles have seldom occurred in mid-ocean, and their tactics have in consequence, been affected by the neighbouring coasts, whether they be hostile or friendly, tideless or not, of easy or difficult access. Yet the Declaration ignores these matters. We should not put our trust in Dreadnoughts alone. The country that has the best system of mine laying and mine sweeping may be the winners in the next war. At the Conference Great Britain endeavoured to make automatic mines illegal, but Germany refused to comply with her wishes. In the case of war the North Sea will he full of mines. Some of them will break adrift. There is a Convention that they are to become automatically harmless if they break adrift, but that does not affect them if they drag their anchors, and the mechanism for rendering them harmless may not work. No neutral will know by whose mine his ship has been sunk. The two belligerents will accuse one another of carelessness. With the North Sea full of mines prudent shipowners will make use of our Western ports, and a considerable number of our East Coast fishermen will be sweeping for mines instead of catching fish. "Night defence" is as yet an unsolved problem on which the last word has not yet been spoken. Experiments with search lights and guns are constantly being carried out by our fleets for the sake of getting more practical experience. It is common-sense that a fleet must protect itself. Generals do not allow people into I heir camps without permission. The cruising ground of a fleet is its camp and we ought not to sign away in time of peace rights that we must exercise in time of war.

In time of war we shall have to exercise territorial rights far beyond the three-mile limit. If we wish to keep our fleets afloat we must put all neutral ships near our coasts under the same regulations that we shall lay down for our own, and enforce those rules under the penalty of seizure or destruction. We can never allow mines to be laid down or torpedoes to be discharged near our fleets by vessels disguised as neutrals. I am aware that correspondence is going on with regard to the twelve-mile limit that Russia is endeavouring to make in certain places. That is a peace question and though I believe we are quite right in opposing it because it opens up such immense possibilities, we must remember that it is a mere question of protection of fisheries at present.

Many naval men appear to think that if our Navy is sufficiently strong the Declaration is of no importance as it is sure to be put into the waste-paper basket by any powerful belligerent. I hold a different opinion, for if we reassert rights that we have signed away, we are far more likely to embroil ourselves with neutrals than if we merely continue to act on rights that are in accordance with what has hitherto been the custom of the sea. In dealing with neutrals we shall have an arguable case, but if we ratify the Treaty we shall have no case at all. I agree with Lord Desart in thinking that we are not strong enough to insist on all the maritime rights that we possessed a century ago. If we have the misfortune to become belligerents, we must do all we can to avoid quarrels with neutrals; and we are more likely to succeed in doing this if, at the commencement of a war, we issue our own rules, declaring unless circumstances change, we shall not assert any maritime rights as against neutrals in certain seas, and only Such rights as are absolutely necessary to our own safety in other parts of the world, thus leaving ourselves free to reassert such rights in more distant seas if the theatre of war changed. Who would have thought that questions of neutrality would have arisen in Madagascar or Nossi Bé until the Russian Fleet reached those islands? Our seamen's hands should not be so tied as to make it impossible for them to save their country from famine.

Two naval men were appointed to assist Lord Desart and on account of that' it has been assumed that they were in support. of the Declaration. But what did the delegates say themselves in their letter to time Foreign Secretary dated March 1, 1909? They divested themselves of all responsibility. They said— To what extent the rules themselves safeguard the legitimate rights and interests of (heat Britain … are questions which we must leave to the judgment of His Majesty's Government. From the above passage I gather that they had instructions to come to an agreement somehow, and that any agreement would be considered better than no agreement. These two naval officers simply obeyed orders, as they had been accustomed to do during the whole of their lives. They were apparently not appointed to give their opinions. Article 69 declares that this Treaty is to continue in force until twelve years after ratification. By that time new inventions will have completely altered modern strategy and tactics. Out-of-date and retrograde as this Treaty is now, what will it be in twelve years? Surface men-of-war may have disappeared from the ocean and their places taken by mechanical inventions that no man can foresee. One year's denunciation ought to be sufficient. Recollect that we are playing with fire. If we fail to hold the sea our people will starve and we shall be obliged to submit to any conditions of peace. No amount of heroism can save us. Other nations would only be annoyed by a partial blockade, but we should be completely destroyed.

In the Foreign Office reply to the Edinburgh Chamber of Commerce, sent to them in November last, it is stated— Instances have occurred in recent years in which a powerful belligerent has, with the approval of the other Great Powers, declared food supplies to be absolute contraband, and such instances may, under present conditions, occur again at any moment in time of war. Now, I take it that any nation that wishes to starve us will always claim the right to do so if it can, and that it will treat the whole of Great Britain as a beleaguered fortress, and assert that under the Declaration of London all ports in our islands should be considered as bases for our armed forces. Bristol has been mentioned as being a place serving as a base for the armed forces of the enemy. I do not know much about the situation of Bristol now, because it is many years since I was there. I know there was a Naval Volunteer Corps there some years ago, and I think it may be found that there is one now. if that is the case, and people under the orders of the War Office or the Admiralty are settled or quartered there, that would make it a "base for the armed forces of the enemy." If the United States were to ratify this Treaty it would give away its right to import food into this country as a neutral, whereas at present it is in a position to assert its right to do so if it chooses.

By not mentioning the subject, this Declaration, when considered with the Preamble of Convention 7, gives tacit permission to our enemy to convert merchant ships into men-of-war when on the high seas. Its right to do so when in its own harbours is, of course, unquestioned. But, strange to say, neither document says a word about their reconversion into merchant ships. Are enemies' ships to be allowed to capture or destroy our merchant ships when three miles from a neutral coast, and then to enter that neutral's harbours as peaceful traders, fill up with coal, and to hoist a man-of-war flag an hour after leaving harbour? As they will claim that they are not war-ships they could stop in a neutral harbour for more than 24 hours and repair themselves thoroughly before sallying out again. All that such ships want is speed and an officer holding a temporary commission, who may never have served in a man-of-war and who may belong to a neutral nation, but whose name will be put on and off an enemy's Navy List as necessary. Any light, obsolete gun can stop or sink an unarmed merchant ship.

As it is claimed that, whether we agree to it or not, merchant ships will be converted into men-of-war when on the high seas, I think it worth while to point out that in a recent dispute with Russia on this matter we got our own way, and that the Russian converted cruisers went to one of their own ports in the Baltic to qualify asbona fidemen-of-war. In the American Civil War a large proportion of the blockading fleets consisted of converted merchant ships. Towards the end of the war the fast, lightly-built blockade runners, when captured, were armed with guns, turned into blockaders, and officered by men belonging to the Northern Volunteer Navy. When at war with Spain, the United States made considerable use of fast merchant steamers which were temporarily armed. Our commerce has much more to fear from armed merchant ships than from the few cruisers whose names appear in foreign Navy Lists. In addition to our fleets in the North Sea we require a sufficiency of cruisers to chase these armed merchant ships. Foxes do not stop to eat chickens when the hounds are after them. Formerly privateers had to send in their prizes for adjudication. The privateer of the future is to be his own Prize Court. Privateering is said to have been abolished, but what is a convertible volunteer fleet but a privateer fleet under another name?

I would almost as soon hear of a lost battle as of the ratification of this Treaty. It gives away the results of many campaigns, both on land and at sea, without granting us any equivalent advantages. One of the chief faults of the Treaty from a British point of view is that it appears to have been drawn up by men who, from perpetual reading of Prize Court records, had got their minds obsessed by ideas of single ship capture only, to the exclusion of stoppage of trade, which is the real object of maritime war, and which is most complete when no ships are seized at all bin; are laid up in harbour, because their capture is almost certain if they venture out to sea. The supporters of this Declaration consider that it adds an International Prize Court to the existing Prize Courts. On the contrary, the practical effect of Article 49 is to abolish Prize Courts. This piratical Article says that every officer in command of an armed ship becomes a Prize Court in himself. He is a Court of First Instance, with power to burn, sink, and destroy any neutral ship carrying food to England. Small ships cannot spare prize crews. The actual interpretation of the Declaration will rest with the naval officers of the enemy. Yet British naval officers will not have similar powers over neutral ships carrying food to an enemy Power on the Continent, because the food will be disembarked on neutral territory, within easy reach of that enemy's frontier. It is a one-sided Treaty, suited for a Continental Power with neutral harbours close to it, but unsuited for an island whose frontiers are all on the sea. The victorious belligerent, whose success limy perhaps have been due to his having disregarded the Declaration of London, might put a clause in the Treaty of Peace, making the vanquished nation liable to all the pecuniary damages that would otherwise have to be paid by the successful country, and then the possible decisions of the International Court would have no further influence.

Another point appears to have been forgotten, which is that at the conclusion of the war one of die belligerents may have become bankrupt, or refuse to pay.Ou it n'y a rien, le roi perd ses droits, or one of the belligerents may have ceased to exist, as was the case when the American Civil War came to an end. The reunited States then claimed all the property in neutral hands that had belonged to the Southern States, but declined to pay off any of their liabilities. Article 9, Section 2, says— The geographical limits of the coastline under blockade must be announced. But the distance from the coast within which blockading rights may be exercised is not mentioned. This remains unsettled and is likely to be much disputed. Article 17 says that— Neutral vessels may not be captured fur breach of blockade except within the area of the operations of the war-ships detailed to render the blockade effective. This is delightfully vague. Our blockading ships would be stationed anywhere between the Shetlands and the Scilly Islands, or even Finisterre. But would the International Prize Court admit of our declaring our own limits of blockade? Or would the distance be anywhere within the radius that a blockader could steam without replenishing fuel? Would not the blockader summon other ships to join in the chase by wireless.? According to Article 20 it appears to depend on the amount of coal a blockader may have in her bunkers. Article 18 says— The blockading forces must not bar access to neutral ports or coasts. This is entirely in favour of Continental countries, where belligerent and neutral coasts may touch. Islands do not get a chance. Article 32 says— Where a vessel is carrying absolute contraband her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers. Ships' papers in war time do not give reliable evidence. During the Revolutionary and Napoleonic wars most slips carried two sets of papers, one to show to French officials, the other to show to British cruisers. Many of the Northern ships had British as well as American papers during the Civil War. There is also such a thing as "carrying truck," which means shipping cargo without entering it on the ships' papers. It used to be done on badly-managed lines, officers or petty officers receiving tips for cheating their owners.

As the effect of Articles 33 and 34 has been thoroughly explained by Lord Desborough and the Earl of Selborne I shall not say much about them. Article 33 declares conditional contraband liable to capture if it is destined for the use of a Government Department of the enemy State. But the words in French, the only binding language of the Treaty, are, ou des Administrations de l'Etat ennemi, which would include county and parish councils, water boards, poor-law authorities, and co-operative stores, because they supply regimental canteens and officers' messes. If it had been intended to exclude these and similar bodies words to that effect ought to have been added to this clause. Article 34 also declares goods liable to capture if consigned to a trader established in the enemy's country, or une place fortifyée ennemie, ou d'une autre place servant de base aux forces armées ennemies. Why, all England is the base on which our armies and fleets depend, and our whole country becomes a beleaguered fortress, depending on her supplies of food from other countries the moment that war breaks out. Besides, most of our mercantile ports have some slight fortifications to protect their entrances. Article 46 provides that— A neutral vessel will be condemned and in a general way receive the same treatment as would be applicable to her if she were an enemy merchant vessel. if," [says section 4] "she is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy. As regards "exclusively engaged in the transport of enemy troops," how can you prove "exclusively"? It would be sufficient to have half-a-dozen passengers on board to disprove "exclusively." Then, again, "exclusively engaged in the transmission of intelligence in the interest of the enemy." How do you prove that? She has only to pretend to catch fish to make herself immune from capture. Article 48 says that a neutral prize must be taken into port to determine the validity of her capture, but Article 49 says that she may be destroyed if the observance of Article 48 would interfere with the success of a war-ship's operations. It would be very seldom that a prize could be sent in. Large crews are required nowadays—a crew for the upper deck and one for the stokehold. In the olden days they had very few men, and by never setting too much sail three or four men could manage to handle a very big sailing ship and bring her in if there was no hurry, but nowadays it is different.

The Foreign Office reply to the Edinburgh Chamber of Commerce in November last stated that— at the present moment neutral merchant ships are in practice liable to be sunk unconditionally by a belligerent man-of-war. I am aware that in the Russo-Japanese war four British vessels were destroyed by the Russians without being taken before a Prize Court, but is that a sufficient reason for altering the law? If a few burglaries had taken place without its being possible to arrest the criminals, would that be a sufficient reason for legalising burglary? By the capture and destruction of the "Knight Commander" the Russians gained their object for a while. By destroying one ship they frightened and postponed the sailing of other vessels loaded with railway iron, and, by so doing, delayed the construction of Japanese military railways in Manchuria. These matters are not merely questions of £s. d. to be settled some years later by a Court partly composed of mulatto judges, who wish to sit for ever on a salary of eight guineas a day. The effect of the capture of a ship often has an immediate result. What can the subsequent decisions of an International Prize Court matter to a people half of whom have been starved to death by such captures? It will not bring the dead back to life.

Article 55 renders invalid the transfer of an enemy ship to a neutral flag after hostilities have commenced. I may mention as a matter of history that during the American Civil War hundreds of Northern ships were transferred to the neutral flag of Great Britain, who made no profit out of the transaction. They remained under American ownership with American captains and American crews. There was nothing British about them except the flag. Articles 61 and 62 make a hard-and-fast rule that the presence of a neutral commissioned officer on board a neutral war-ship protects a whole fleet of neutral merchant ships. There are cases, perhaps, where it ought to do so, but if made into a fixed and unalterable rule I think it far more likely to drag us into a war with a neutral than to keep us out of it. The belligerent should make his own rules at the commencement of a war, and it would not be wise of him to make them too hard on a neutral, unless absolutely necessary, and then only in certain seas.

Then as to the tribunal. While guns are being fired I do not believe in its being possible to form an impartial international tribunal. You must go to some other planet if you wish to find an impartial tribunal in time of war. When a fight is on, all nations sympathise more or less with one side or the other. Could we have trusted the impartiality of the Belgian Courts that acquitted Major Lothaire and Sipido? Or German judges during the Boer War? When I first saw the list of countries that were to provide judges I thought that I had got hold of a rough draft of a comic opera, and when Lord Desborough read the list of them the House laughed. I have dealt with this question from the belligerent point of view only, because the losses that we may incur as neutrals are mere trifles compared with the risk of total destruction that might happen to us in war if our food supply is interrupted. How small were our losses in the Russo-Japanese war compared with what our losses and expenses would have amounted to had we waged war with either, even if we had been successful?

A pamphlet by Mr. Bray has been much praised by some of the supporters of the Declaration. At page 25 he says that the case of a neutral ship being inside a blockaded port and attempting to come out and succeeding in eluding the watchfulness of the blockading fleet is exceedingly remote. Had Mr. Bray visited Havana, Bermuda, or Nassau during the Civil War in America, or even if he had ever read a naval history of that war, he would never have written that paragraph. Besides, the reason why ships are more often captured when going in than when going out is that egress is a much easier operation. You wait for a rainy or a foggy night and then slip out and find yourself 120 or 150 miles off by daylight, whereas to come into a harbour you have to hit the mouth of it exactly on a dark night in thick weather. If you fail, you have to steam along the coast and then you are very likely to be caught by the blockading squadron. Many blockade-runners were wrecked on attempting to enter the Confederate harbours. It was the dangerous part of the business. At page 60, as regards Articles 49 and 50, Mr. Bray assumes that as all persons on board a neutral ship must be placed in safety before she is destroyed, the presence of another neutral ship to which they can be transferred is a practicalsine qua nonHad those who drew up the Declaration meant this they ought to have stated it clearly. Any captor would consider his own ship a place of safety for the present. Whether she would continue to be so two hours later is another matter. The Russians took some of the crew of the British vessels that they sank to Vladivostock with them. Mr. Bray may have studied a large number of Prize Court cases, but he has evidently never studied war, and therefore his opinions on the Declaration cannot be considered of much value.

The Lord Chancellor said that one of the chief reasons why this Declaration was needed was to lessen the uncertainty of shipowners in war-time. There can be no more certainty in war than there is about the winner of a horse race. Shipowners might as well ask for the moon as ask for certainty. The unexpected is bound to occur. Already the interpretation of nearly every article in the Declaration is in dispute. The important question as to whether the lengthy Report that accompanies the Declaration has any legal value or not is a matter on which two of our most distinguished international professors, Messrs. Holland and Westlake, hold contradictory opinions, arid they have both of them many supporters. The fact is that international lawyers have attempted an impossible task, and have failed. Had they studied war as much as they had studied law they would have known that they were attempting an impossibility. Their failure is not as conspicuous now in time of peace as it will be in time of war.

To conclude, while giving full weight to the objections made to the Declaration by others, my chief objection to it is that if we act in accordance with it our inability to deal with real neutrals will leave us at the mercy of sham neutrals in the North Sea, who will be able to lay mines and use torpedoes in such a manner as to destroy our best ships before they have a chance of meeting the enemy's battleships. Recollect that the Japanese lost two of their first-class battleships in one day, and that the Russian flagship was blown to pieces by a mine which exploded under her magazine. Her best Admiral, Makaroff, and the greater part of her crew perished with her. Are we to increase our chances of similar misfortunes happening to us by ratifying this Treaty? If we ratify this Treaty and then disregard it, as we positively must, we shall greatly increase our chances of quarrelling with neutrals, the one thing we must try to avoid if engaged in war. If we have the misfortune to be engaged in war we must trust to our own strength on sea and on land, and to a diplomacy based not so much on former belligerent rights as on tact and common sense, to bring us with safety through our troubles.


My Lords, I am sure the noble Lord will excuse me if I do not deal at any great length with his speech. In the early part of his oration he made the remarkable declaration that, in the event of war, the bottom would immediately be knocked out of the Declaration of London. Consequently I am bound to say I can see no useful purpose in discussing his comments upon the provisions of the Declaration, because in his view it is mere waste paper. But I am very glad that the noble Lord has spoken, for he represents a class of opinion that has not been fully represented in the course of this discussion.

This debate upon a subject of the gravest international importance has remained upon a level worthy of a great question, and I desire to bear tribute to the excellent speech of Lord Desborough, who gave expression to the views of a considerable section of the mercantile community with great moderation, prudence, and reserve. But I think it must be admitted that outside this House, and for a long period of time, there has been going on another kind of agitation. I read in theMorninyPost of December 3 that the Declaration of London was "a sword for the Unionist Party"—that is to say, it was to be used as a Party weapon in connection with matters which ought to be, and I hope will remain, above all Party considerations. That is not all. In going through the streets of London your Lordships will have seen upon the walls a most reprehensible picture which is based upon an entirely incorrect view of the Declaration, and which, I regret to say, bears upon it the authority of a Member of Parliament—Sir William Bull.

And, in addition to that, we have the very vehement protestations of the Imperial Maritime League, which has issued a very lengthy pamphlet with regard to which I should like to make one or two comments. This is what the twin founders and twin honorary secretaries of the Imperial Maritime League say in the course of a discussion— Mr. Balfour should be called upon definitely to state. on behalf of the Unionist Party, that, if they are signed by the present Government, they kill be denounced by the Unionist party the moment they return to power, and that along with that denouncement of the Declaration of London there shall be by the Unionist Party a denouncement alike of the Declaration of Paris of 1856 That is merely to adopt the attitude taken up by so capable a gentleman as Mr. Gibson Bowles. He has always been an opponent of all kinds of restrictions on naval warfare. He, as a bold buccaneer both in Parliament and on the ocean, prefers a condition of free piracy upon the high seas; and in regard to that I was rather amused to hear the noble and learned Earl the ex-Lord Chancellor go back to the days of his boisterous youth and express preference for a condition of warfare of that character, because he seemed to quite concur with the views of Mr. Gibson Bowles.

But what I would desire to point out is that this Declaration is opposed on two grounds diametrically opposed to one another. In the first place it is denounced by the noble Lord opposite and his friends from what I may call the naval standpoint, although the remarkable contributions from Sir Cyprian Bridge, an Admiral of the highest distinction, shows that it is by no means the unanimous view of the Navy. Then there is the opposite view that by this Declaration we are doing some grievous injury to the rights of neutrals. If I thought for one moment, and I am sure the feeling is shared by every one who considers this question, that we by ratifying the Declaration were doing, or likely in the smallest degree to do, any injury whatever to the great interests of this country, I would not raise my voice and I do not think a voice would be raised in favour of that ratification. It is because we conscientiously believe that, in the first place, as was shown so ably by Lord Desart last night and by the admirable contribution of the Lord Chancellor to-day, the rights of belligerents are carefully preserved, and that, in the second place, the position of neutrals is considerably improved, that we hold the view that the ratification of the Declaration will be for the general advantage of all classes of the community.

I do not intend at this late hour and after the excellent speeches we have heard to labour this point at any detail. I will merely say that it is obvious that the laws respecting blockade have now been more accurately defined than ever they were before. I do not think there is any question as to that. The law affecting contraband has also been more clearly stated, inasmuch as we have now three distinct categories approved by all the Powers who were parties to the Declaration. And, above all—and I think this is a matter of the utmost advantage—we have set up a neutral Appeal Court. There is a great deal of talk outside this House, though I admit there has not been so much inside this House, about the lamentable situation that will be created by committing the interests of our country to a foreign Court. But what happens to-day? lf our vessels when neutrals are seized in time of war by a foreign nation, is the matter adjudged by our Courts? Not at all. It is adjudged and finally decided in the Court of the captor. The setting up of a neutral Appeal Court is of immense advantage in the interests of neutrals, inasmuch as it gives them an appeal to an -authority outside the area of conflict. And when people sneer at neutral Appeal Courts I would have them remember that this country in the course of the last ten years has owed much to neutral Courts. It was in consequence of successful appeals to a neutral Court that the Dogger Bank incident was settled without a conflict, although that contingency was a very near one, between ourselves and the Russian Empire. And more recently the great controversies that surrounded the Newfoundland fisheries, which have baffled diplomatists for over seventy years, were settled by a neutral Court presided over by a very distinguished Austrian jurist. Our experience of neutral Courts ought to render us most thankful to have an International Prize Court called into existence.

I wish to say one or two words in connection with what was said by the ex-Lord Chancellor, Lord Halsbury, in answer to the noble and learned Lord on the Woolsack. He called attention to the fact. in which he corroborated what Lord Deshorough stated, that in the Report of M. Renault it is said that the Prize Court is to make the law. But surely that must be taken in connection with the general situation. Now what is the general situation set up by the Declaration? In the first place the International Prize Court is to be guided by the ordinary principles of international law, and in the second place it is to be guided, and, of course, can only be guided, by the stipulations in the Declaration itself; and on points which may give rise to doubt it is to be governed by justice and equity. In the sense that it is to be guided by justice and equity it doubtless will, in a way, make law. The International Prize Court will, in the future, although I hope that circumstances will make it increasingly unnecessary, make precedents and make law; and we can only rejoice that there will gradually be set up a recognised code of international law instead of the chaotic conditions which exist at the present moment.

It is quite unnecessary, after what has been said, that I should go into the provisions of the Declaration in any detail, but I would point out that the Declaration of London is but a sequel to the work of the Hague Conference. Since the beginning of the present century there has been set up a system—I think a very hopeful system—of international Conferences which I believe in the future is going to be of the greatest advantage to the civilised world. In consequence of the decisions of the Hague Conference we have been brought nearer to many Powers with whom we had causes of estrangement, notably with America, in which case, I am very glad to say, causes of irritation and constant difficulty have been finally removed. It will be remembered that in connection with the last Conference at the Hague, when the question of the Prize Court was examined, it was urged on behalf of Great Britain that before such a Court could be set up it was desirable to establish certain general principles upon which the Court should act. Surely that was a very wise provision to be made on the part of the Foreign Office, and it was upon that foundation that the Conference of London took place and the Declaration of London was drawn up.

Certain members of this House now call upon us to repudiate this Declaration. We are to say that practically the whole of the course taken by us in the matter has been a mistake. We are to tell the Powers whom we invited to this Conference that we refuse to agree to, and that we withdraw from, the Agreement that we proposed to them to formulate in association with ourselves. What would be our position in the eyes of civilised nations if Great Britain, having initiated this matter on grounds which I think were perfectly right and proper, were now at the eleventh hour to withdraw? If this Declaration is examined fairly and temperately, as I agree it has been examined in many quarters of this House, it will be found that the balance of advantage is enormously in favour of Great Britain both as a belligerent and also as a neutral. I am one of those who look forward to this Declaration of London and the International Prize Court as leading to something more. I look forward to the day, which, I think, will not be very far distant, when we shall be able to make some progress towards the total abolition of the right of capture and establish the immunity of private property at sea, to which this is an absolutely necessary preliminary step. It is in that direction that the trading and commercial community of this country should set their eyes; it is to that task they ought to brace their energies.


My Lords I am sure that every one of your Lordships will agree with the noble Lord opposite that not a single member of this House would support the Declaration of London for a moment if he thought that by so doing he might inflict the smallest damage or detriment to the interests of this country. And I am sure we would also agree with him as to the great advantages this country has derived from referring to arbitration matters that might have led to disputes and wars. But surely there is very little in common between referring matters in dispute and which might lead to war to arbitration and the matter which is before your Lordships to-night—the ratification of a Declaration dealing with the rights of belligerents and neutrals during a war and the setting up of an International Prize Court of Appeal. I agree with the noble Lord opposite that a good deal of intemperate language has been used and written on this subject. After all, what the Government are now asked to do is to remove this question altogether from the possibilities of heated argument by appointing a Royal Commission of Inquiry to go into the whole matter dispassionately and quietly, and report as to what, in their opinion, the effect of the Declaration upon this country would be in the unfortunate event of war, whether as a neutral or as a belligerent.

I listened, as I am sure we all did, with the greatest attention to the admirable speech of Lord Desart, and to the equally admirable speech of the noble and learned Lord on the Woolsack. The Lord Chancellor, always persuasive, almost persuaded me, but on this occasion lie did not absolutely persuade me; nor did Lord Desart, and chiefly because neither the Lord Chancellor nor Lord Desart appeared to me to attach any importance whatever to what seems to me the enormous difference between assenting and dissenting. The speech of Lord Desart was, to a large extent, apologetic. He said the Declaration of London and the institution of an International Prize Court would he of considerable advantage to us as a neutral, and he thought there would be very little detriment to us as a belligerent. He argued that in any case we could be no worse off than we are now, but he attached no importance whatever, nor did the Lord Chancellor, to the enormous influence that a strong and determined neutral can exercise. Surely there is an immense difference between the position of independence we were in before and the position we shall occupy if we assent to the various Articles, some of which have been signed and ratified in many of these Conventions, but some of which have not been signed and are not yet ratified. To a certain extent we have tied our hands, and the question is whether in doing so we gain advantage or suffer disadvantage. The Lord Chancellor is of opinion that all that a neutral can do is to diplomatically expostulate, and, if that fails, to resort to war. But surely between the two extremes of a declaration of war and a mere polite diplomatic Note there is an enormous opportunity for a strong and powerful and determined neutral to make its view heard and felt and respected.

There is only one point that I really wish to allude to for a moment, although it has been very fully discussed already, and that is the question of conditional contraband. The Lord Chancellor has told us that in his opinion food and the other articles of conditional contraband could certainly be brought into this country if we were a belligerent. He said they could be brought into many ports in the United Kingdom, and he mentioned one—Bristol. If the noble and learned Lord on the Woolsack was the Commander of a hostile fleet I would be perfectly satisfied. I do not mean that to be in any sense derogatory to his Lordship's capacity as a naval commander, but I would be perfectly satisfied that he would construe these Articles in a just manner, and that at any rate, though they might not be favourable to us, he would be just. But, of course, he would not be in that position, and it seems to be self-evident and scarcely worth arguing that the commander of a hostile ship, whether German, French, Russian, or whatever he might be, in the strain and stress of war would not only think it per- missible, but would think it his absolute duty, to say that a consignment of food to any of our ports was a consignment to a port which would be used as a base of supply for a Government department, or for the military forces, or for the revictualling of the Fleet. Infallibly he would do so, and infallibly his own Government would justify him. If the International Prize Court thought otherwise we might get a small money compensation, a few thousand pounds, four or five years after the war had been finished, and it would be finished probably owing to our own starvation for want of food.

Does it not really come to this? Food and the other articles of conditional contraband can be supplied to any Continental nation at war without any very great expense to them either by rail or water carriage through delivery at a neutral port which may be close or comparatively close to their own frontiers. But food could not be brought to any port in the United Kingdom because it would be considered by naval commanders to be contraband, and if brought into a neutral port it would have to be transmitted again by sea and run all the dangers of capture or destruction. Practically, therefore, the position established by the Declaration is this—and I do not see how it can be denied—that when we are at war food would be contraband so far as we are concerned; while food as far as any Continental nation at war with us is concerned would not be contraband of war. Surely that puts us at an enormous disadvantage. As to the other matters which have been decided in some of these Conventions—I could mention a long list of them, but I do not think it necessary to do so—I will allude to only one that has been mentioned, namely, that belligerents can take neutral ships and place them in neutral ports. That is no advantage to us. We have ports all over the world, and can take captured ships to our own ports. To be able to take captured ships to be retained in neutral ports is an enormous advantage to every other nation which is at war, for it diminishes greatly the chances of the recapture of those ships.

Take also the question of the conversion of trade's into men-of-war at sea. We objected to that. The Lord Chancellor has told us so. But, though we objected to it, we assented. When it becomes part and parcel of the Declaration of London we shall have agreed that it is a proper thing to do. We need not do it, but we shall be at a still greater disadvantage. We shall have declared that we consider it a proper thing that merchant ships, ordinary traders, should be converted on the high seas into warships. That is an enormous advantage to any nation that subsidises liners all over the world, while it is of very little advantage indeed to us.


If the noble Earl will excuse me, I must point out that we have not assented. The Declaration does not deal with it.


My point is this, and I am glad to be corrected if I am wrong. I know the Declaration has not settled anything about it. But no declaration having been made upon it, do we not commit ourselves to the idea that the thing is legitimate and can be done?


We opposed it, and therefore no declaration has been made.


But in accepting it could it not be said that we allowed it to go by default?


The Convention on the conversion of merchant ships into ships of war states distinctly that it has 'been impossible to arrive at agreement on this particular question. That sufficiently shows that we did not agree.


I do not press the point. If we accept the document with this condition we cannot in future say it is an improper thing for anybody else to do this. If we do not do it ourselves we shall be at a still greater disadvantage. This Declaration sets up an International Court. I do not propose to say anything on that. The legal aspects have been dealt with so admirably by the noble and learned Lord on the Woolsack and by Lord Halsbury that I will say nothing on that point at all. But the Declaration of London must be looked at, not only by itself, but also in connection with all the other Agreements that have been conic to, some signed and ratified, some signed and not ratified; and if that be done, I find it very difficult to understand how any reasonable man can deny that the general tendency of all the provisions is to the advantage of Powers that are weak at sea and to the disadvantage of Powers that are strong at sea, and as we are, or think we are, the most powerful nation at sea they are, taking them together, to our disadvantage.

I do not know whether His Majesty's Government are going to grant a Royal Commission to look into tins matter. I hope they are. We know very little of what expert opinion is on the subject. The noble Viscount opposite, the Leader of the House, gave us the opinion, or rather an opinion, of the Board of Admiralty on the subject. It would, of course, be very interesting to know whether that opinion was given after the fact was accomplished or whether it had been given before any of these arrangements were agreed to. It would also be interesting to know whether that opinion was given merely on the question of setting up an International Prize Court and on the Declaration of London, or whether it was given in reference to all the Conventions. The noble Viscount told us that it would not be to the public interest to go into that matter further. Of course, I say nothing further about it. But I take the opinion that the noble Viscount gave us. He said that the opinion of the Board of Admiralty was that as things are at present the effect upon us as a belligerent of the institution of the International Prize Court and the Declaration of London would be small and inconsiderable. Well, I take it at that—the effect would be small. But in the extremely precarious position that this country must be in in the event of a great war, and in view of the consequences, not only to ourselves, but to all the constituent States of the Empire, is it a wise thing to take a risk, however small it may be, or to in any way diminish the powers we now have?

We are in an extraordinary position. No other great nation is in a position to lose so much as we are. If we are unfortunately driven into a war our only means of bringing that war to a speedy and successful issue is by the use of as much economic pressure upon our enemy as will compel him to stop hostilities by harassing and destroying his commerce and trade at sea. That is our only weapon of offence, and while hostilities are going on we have to depend for our daily bread upon an enormous and almost daily supply of food. However small and inconsiderable it may be, to in any way take away from the powers we have hitherto exercised, or to diminish them, is to incur a responsibility which, I submit, ought not to have been taken by His Majesty's Government without at any rate ascertaining the views of the great Dominions upon the subject, and certainly not without acquainting Parliament, and through Parliament the country, with the details and the possibilities and the probabilities of all the arrangements that His Majesty's Government desired to enter into.

On Question, debate adjourne to Monday next, and to be taken first.

House adjourned at half-past Seven o'clock, to Monday next, a quarter before Eleven o'clock.