HL Deb 13 March 1911 vol 7 cc432-76

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).


My Lords, I rise to address your Lordships on this subject with some diffidence, because I disagree very largely with the views which have been expressed by every other speaker on this side of the House. I am bound to confess that when I first read the criticisms that appeared in the public Press I began to fear that the British delegates must have been of an extraordinarily accommodating temperament, and that the representatives of the foreign Powers had entered into some dark conspiracy to rob this country of its most cherished rights at sea while they themselves gave away nothing which they considered of value to themselves. So, my Lords, I thought I had better study the other side of the question, and, having done so, I have arrived at the conclusion that, so far from our delegates having abandoned anything that was of supreme importance to this country, they were very fairly successful in persuading the delegates of foreign Powers to compromise on many of the questions which they had hitherto regarded as of value to their own countries.

The ignorance of the public generally on this question is astonishing, and I had an illustration of that fact only last Thursday evening when I left this House. I happened to meet a friend of mine who is at the head of a large and important mercantile house in the City of London. I told him we had been discussing the Declaration of London, and his only comment was this, "I do hope you are not going to truckle to those German fellows." I did not attempt to argue with him. I merely asked him whether he had studied the Declaration. "No, he had not had time, but he had read some of the criticisms that had appeared in the newspapers." I asked him whether he did not consider it of great value to his own firm and to firms such as his own that in future there would be a free list—a list of articles which in no circumstances could be declared contraband of war. I pointed out to him that some of the articles named in that list were articles in which he himself was interested, and that they included one or two which were not only susceptible of use in time of war but were absolutely essential to the conduct of warlike operations on any large scale. He admitted that he had never heard of the free list, and that it undoubtedly would be of very great advantage. Here, my Lords, was a man who had formed his opinion entirely from the criticisms he had seen in the public Press. Those criticisms have been to a large extent misleading, and they have also been mutually destructive.

There is one class of critics who starts by advocating the denunciation of the Declaration of Paris in order that this country may revert to the tactics which it pursued 100 years or more ago. They then proceed to assert that the Articles of the Declaration of London governing conditional contraband are of such a nature that in time of war this country must inevitably be starved into surrender. Apparently these critics would like food and the other articles in the list of conditional contraband free when they are consigned to this country and absolute contraband when consigned to any other country—a delightful arrangement for us, no doubt, but one to which I am afraid no foreign Power is likely to, agree. But I wonder whether this class of critics have considered what is likely to, be the result of our returning to the tactics of 100 years ago. I wonder whether they contemplate with anything like equanimity the prospect of this country being engaged in War with, perhaps, half the civilised world, because that might very probably be the result of our returning to the tactics we adopted 100 years ago. For my reply I go to the critics themselves, and I find that they tell me that we are not only incapable of effectually cutting off the supplies of the enemy, that we are not only incapable of waging war against half the civilised world, but that we are trot even capable of defending our own supplies.

Let me illustrate those points by one or two short quotations from the pamphlet issued by the Imperial Maritime League, which has run through eight editions and for which it is claimed that it has been distributed throughout the entirety of the constituencies of the United Kingdom. I turn to page 13 to see what they have to say about the Declaration of Paris, and I find this— But how do we expect, to enforce our national will, how do we hope to win victory in war, unless we retain the means to injure our opponents? And now that we have abandoned—it is to be hoped temporarily only—the right of capturing enemy goods in neutral ships, the power of injuring seriously any great State with which we may come into conflict is practically gone. Then, on page 17, this is what they have to say about. our food supply— By actually consenting to this inclusion of food amongst articles of contraband, our representatives at the Loudon Conference have put a weapon in the hands of our rivals which cannot fail. If this astounding provision be ratified by the Government, they will have put the coffin lid on England and nailed it down. Finally I would like to give a quotation from what they say in regard to our capacity for defending supplies— The broad fact cannot be denied that British shipping, all the world over, is at the mercy of its foes. These are the people who want to denounce the Declaration of Paris. Again— We have now seen, in all its appalling tenuity, the weakness of the force upon which, wrapped in ignorance as in a garment, the British public blindly rely for their salvation from the last sorrows of starvation in time of war. There is a pretty medley, my Lords! And that is the food with which the public mind has been fed very largely during the last few months. I think that those who so violently denounce this Declaration may be divided. roughly, into two classes. "There are the Jingoes, who apparently are prepared to challenge the rest of the world to come on, and there are the pessimists, who fear that we are no longer capable of defending our own supplies. I cannot help thinking that between these two mutually destructive attitudes the Declaration of London may very likely approach somewhere near to the happy medium.

Then we are told that by this Declaration we have abandoned the doctrine of continuous voyage so far as conditional contraband is concerned—I think the noble Earl, Lord Desart, called it the doctrine of ultimate destination. Well, I am very glad we have abandoned it—it was absolutely useless as a weapon of offence—and I think it will very likely give us facilities for obtaining supplies through neutral ports. The noble Lord, Lord Desborough, in the course of his speech the other evening, told us that we must not suppose that it would be possible to obtain supplies through a neutral port, because none of the ports of northern France, for instance, had any facilities for handling cargoes of grain. Well, who wants to handle cargoes of grain? All that it is necessary to do is to turn the ship round and send her across the Channel. Noble Lords laugh, but I do not know of any objection to that. Other objectors say that grain is very frequently shipped in part cargoes, and that therefore it would be absolutely necessary to handle the cargoes and trans-ship them on arrival at the neutral port. All I can say is that in time of war the grain must be shipped in full cargoes. It may be more expensive and more inconvenient, but then, unfortunately, war always is expensive and always is inconvenient. Then Lord Desborough went on to say that, even supposing it were possible to get supplies through a neutral port, they would be swept off the sea by the enemy before they could get across the Channel. If our Fleet is not capable of protecting those supplies when they are coming across the Channel, our plight must indeed be a desperate one.

After all is said and done, does it not come to this—that either our Fleet must be capable of guaranteeing supplies or we are lost? It is no use talking about feeding this country with supplies in neutral ships. It is a physical impossibility. Either our Fleet must be capable of protecting our own shipping or we must surrender. I do not think I can do better, in leaving this branch of the subject, than by quoting an extract from "Sea Law and Sea Power," by that protagonist in the agitation against this Declaration, Mr. Gibson Bowles— Even if Great Britain be not so predominant"—i.e., in command of the sea—"even then, so wide and so open are the avenues of access to the British Islands, such supplies cannot be intercepted to any appreciable extent were all the navies in the world to be set the task. The question of the destruction of neutral prizes before adjudication is intimately bound up with that of contraband. And we are told that this country, under the Declaration, has abandoned the attitude which it has hitherto consistently maintained—that in no circumstances should a neutral vessel be destroyed before adjudication. This country has been almost singular in its attitude, and surely rather than allow the matter to remain in its present unsettled state it was better that our delegates should endeavour to persuade the representatives of the foreign Powers to agree to some compromise which approached as nearly as possible to what I may call our ideal. That they did succeed in doing that I think is shown by the fact that the delegates of the foreign Powers protested that the restrictions under which in future the destruction of neutral prizes before adjudication is to be allowed were of such a nature that they amounted almost to a renunciation of the right. Let me remind the House of what the noble Earl, Lord Desart, says in reference to this in his Report [p. 98]— The delegates representing those Powers which have been most determined in vindicating the right to destroy neutral prizes declared that the combination of the rules now adopted respecting destruction and liability of the ship practically amounted in itself to a renunciation of the right in all but a few cases. We did not conceal the fact that this was exactly the object at which we aimed. If the Declaration is not ratified, what is the position? Presumably the other Powers will still maintain the right to destroy before adjudication. If we are belligerents we cannot protest more strongly than by prosecuting the war in which we are already engaged. We cannot hope for any support in our protests from the other neutrals, because they reserve to themselves the right of destruction before adjudication.

Well, then, what is the position if we are neutrals? I have heard it suggested in the course of this debate that in some hazy and unexplained way we could bring pressure to bear upon the belligerent. I do not quite know what particular kind of pressure it is. And here, again, it must be remembered that we cannot expect support in bringing that pressure from any other neutral, every other neutral, with possibly one or two exceptions, reserving to themselves the right to destroy before adjudication. I cannot think of any other remedy but the remedy of war, and that is the remedy which apparently some of the critics would wish us to employ. Let me put this to them. Supposing both belligerents destroyed some of our shipping, We being neutrals, are we to go to war with both of them? Supposing there are three belligerents and each one of the three destroys some of our shipping, are we to go to war with all three belligerents? I go to time critics themselves again for the reply. They tell me that, so far from our being able to carry on war against three other Powers, the strength of our Fleet falls far short of the two-Power standard. Then we are told that the restrictions under which in future the destruction of neutral prizes would be allowed are so uncertain that the commander of a belligerent warship would undoubtedly give himself the benefit of the slightest doubt, and would destroy the ship in order to strike a blow at the enemy by stopping some of his supplies. Well, if he will do that in spite of the restrictions contained in the Declaration, what would he do if he was unfettered by any restrictions whatever?

The criticism of this Declaration has been so sweeping that apparently those who condemn it cannot even see any value in the list of articles which cannot he declared contraband. They tell us that they are of minor importance, and that, with possibly one or two exceptions, the list includes articles which no Power would ever dream of declaring contraband. Apart from the fact that the goods named in that list account for an enormous proportion of the total foreign trade of this country; apart from the fact; that the list includes one or two articles which have on previous occasions been declared contraband—apart from those facts the list also contains articles which I of my own knowledge know to be not only susceptible of use by belligerents, but essential for the conduct of warlike operations. I should have thought it would have been generally acknowledged that it was of great advantage to this country, both as belligerents and as neutrals. As belligerents I should have thought it was of advantage to know that in future there is no risk of our having to close down our factories for lack of raw material; and as neutrals I should have thought it was a great advantage to this country, with our enormous interests, mercantile and shipping, to know that in future any article named in the list can be sent to any part of the world without let or hindrance, with the certain knowledge that it cannot be declared contraband. I should have thought, too, that it would have been generally acknowledged that it was an advantage to have in future one uniform law instead of the present state of uncertainty; and further, I should have thought that it would have been generally admitted, after our recent experiences at time Hague, that we are not the only country in the world that is capable of dispensing justice. But, my Lords, apparently the same fears that have allowed the critics of this Declaration to think that the delegates of the foreign Powers at the recent Conference entered into some dark conspiracy to rob this country of its most cherished rights, lead them to suppose now that the representatives of the other Powers when they come to the International Court will throw every other consideration to the winds, every consideration of honour, of justice, and fair play, in order that they may wreak their spite upon this country. I prefer to think that we are not, after all, so utterly detestable in the eyes of every other nation in the world.


My Lords, last Thursday my noble friend Lord Ellen borough made an admirable speech on this subject from the point of view of the naval officer. I wish to say a few words on behalf of the merchant service, and more especially on behalf of the Imperial Merchant Service Guild, which comprises very nearly two-thirds of the certificated captains and officers in the merchant service. International lawyers may have a most perfect knowledge of international law and of other law, but they cannot be considered as practical men in regard to seafaring matters. The men whom I represent are—no men more so—and on their behalf I protest against the ratification of the Declaration of London. They say that the Declaration of Paris was bad, but that this new Declaration will be worse as regards the interests of the merchant service.

I would remind your Lordships that this country mainly owes its prosperity to the merchant service, and we owe to that service the building up of this great Empire. Therefore anything which will tend to deteriorate or do away with our merchant service should be severely condemned. If you do away with our merchant service you may then do away with the defending Army. and Navy, for this country will have nothing left worth defending. On Thursday last the noble and learned Lord on the Woolsack maintained the carrying of food supplies in neutral ships. We do not want our food supplies carried in neutral ships as long as we can have our own ships. It is in our own ships, commanded and manned by British officers and seamen, that we should put our trust. The merchant service, if the Government do their duty and give it the support it deserves and needs, will always be amply sufficient to supply this country with food. In the old days the merchant service always did its duty, and if looked after now it will be ready to do so again in the same way.

In conclusion, I would like to draw your Lordships' attention to a reply given by Mr. Asquith in another place on February 9. The right hon. gentleman was asked by Mr. Butcher— Will any opportunity be given to Parliament to express their view—Yes or No—whether the Declaration should be ratified? The Prime Minister replied— The ratification is a matter not for Parliament but for the Crown. The Crown will not be advised to ratify if the House of Commons gives an adverse vote. It seems to me that the question is whether, if the House of Commons gives it approval and your Lordships disapprove, the Cabinet will consider that sufficient to advise the Crown to ratify the Declaration—in other words, is it the intention of the Government that in matters of this sort the House of Commons alone should constitute Parliament and that the opinion of this House should be completely ignored? I hope some noble Lord opposite who will speak for His Majesty's Government will be able to give us definite information on this rather important subject.


My Lords, this is the third day on which your Lordships have been engaged in discussing this most important subject. I do not think that the country will be surprised that so much time has been given to this Declaration. It indeed deals with matters which are of vital concern. I think that in the speech which my noble friend Lord Ritchie delivered this afternoon he did not give as much appreciation to the vital character of this Declaration as it deserves. I am not a pessimist and I am not a Jingo, but really politicians, even Unionists, in this country are not entirely confined to. those two classes. Some of us claim to be men who desire to study the vital interests of our country in moderate language and with a moderate policy.


I said that those who violently denounce this Declaration could be divided into those two classes. I am quite sure the noble Marquess does not intend to violently denounce the Declaration.


My noble friend was, of course, addressing himself to the debate which has taken place in your Lordships' House during these three days, and I have not heard a violent speech delivered on either side of the House. I desired, therefore, to call attention to the fact that the criticisms which we offer to the Declaration are not violent criticisms, but are criticisms which are important, we think, because of the vital character of the Declaration itself. A noble Lord opposite, Lord Weardale, who spoke on the last occasion, drew a very gloomy picture of the results if the Crown were advised to refuse the ratification of this Treaty. No doubt it is a strong measure to take. But when you come to consider that our country stands in a unique position in regard to this matter, and when you also add to that the great novelty of the procedure which the Declaration and Convention are about to set up, then. I think ay refusal of the ratification would be abundantly justified.

My noble friend Lord Ritchie said that unless we were able to protect our own shipping we were certainly lost. We shall protect our own shipping, no doubt, a great deal of it; but we cannot be ubiquitous. Powerful though we are at sea, we cannot cover absolutely all the avenues of trade of this country. And let him remember also that when we come to discuss with other countries what ought to be done in matters of this kind we stand to lose far more than any other country. Every other country practically has a land frontier over which all the supplies they require call be brought. We alone have to bring our supplies across the sea. To us alone it is a matter of life and death that the regulations which govern that commerce should not be unfavourable to this country either in peace or in war. If am sure the Government appreciate the importance of that consideration, but I think they have underrated the difficulty.

What are the Government trying to do? Their object is, if I may say so, admirable. They are pursuing a policy which has been adopted by both Parties in the State—that is to say, they are endeavouring to establish, as far as possible, in lieu of the arbitrament of arms in international disputes, a reign of law. Both Parties in the State have aided step by step to build up this edifice. But we have got very little way yet. And when you are establishing a Code of International Law which has to be interpreted judicially by a tribunal, is it not abundantly clear that you must be in the highest degree careful of the precise language you employ and the precise terms on which you agree? There is nothing precise at all in this Declaration. It is vague from beginning to end. The vital interests of our country are to be subject to a vague Code which may or may not be interpretated in our favour. When I read the language of this Declaration I am reminded far more of the language of diplomacy than the language of an Act of Parliament. The noble Viscount (Viscount Morley) dissents. I was going to say an impertinent thing—namely, that the noble Viscount does not know the language of diplomacy as well as some of us, but that would not be true. He knows that in the language of diplomacy the last thing people desire is to be precise.


Some people.


I do not know in what particular Treaties the noble Viscount has been engaged. All I can say is that nearly all the Treaties in which I have been engaged abound in loopholes. The language is never precise. Nor does it matter in ordinary cases because the authority which is going to decide the meaning is the Power itself. It is well known as an axiom of diplomacy that the Power itself which signs the Treaty decides its obligations under the Treaty. Therefore vagueness does not matter. But in a Code which is going to be interpreted by a. tribunal it is quite another thing, and we require the language to be precise. Let me give an example. I am sorry the Lord Chancellor is not in his place. In his speech the other night the noble and learned Lord said that one of the main objects to be obtained by this Declaration is certainty. There is no certainty, as far as I can make out, in any of the provisions of the Declaration. There is a word comer[...]ant—that is the French word used to describe the person to whom if foodstuffs are consigned in certain cases they may be destroyed. It is of vital importance, of course, who the comer[...]ant is. The Foreign Office have translated that as "contractor." Everybody knows that that is wrong. Yet this was the solemn translation which our Foreign Office put upon the word. What is the proper translation? The noble and learned Lord the Lord Chancellor, throwing over the Foreign Office, used the phrase "trader" when he described it. Why should there be such a doubt upon the matter? Of course, if it were a Bill such as your Lordships are accustomed to deal with there would be a definition clause, but the language used in this instrument is absolutely vague.

But a far worse criticism remains behind. The question is, Does or does not this Declaration contain within itself the sum total of our obligations? There is great doubt about it. There is the question whether or not the text of the Declaration is conclusive, or whether we have not got to look beyond the text of the Declaration to a certain Report which is issued in the Blue Book along with it, and which appears to have some sort of authority—it is called the Renault Report. I want your Lordships to realise that the Renault Report does not coincide with the text. I am not merely giving my own opinion, for I hold in my hand a most instructive account of a debate on this Declaration which took place at a conference of the International Law Society—apparently a very learned authority—in August last year. Several speeches were made at that conference which well deserve your Lordships' attention. Here is an extract from a speech by Sir John Macdonell, who, speaking of this Report, said— The commentary seems occasionally to extend or qualify if not to conflict with the text. Your Lordships will see that, if that is true, it is of vital importance to know what authority this commentary has. It is surprising to find that in the text itself there is no reference to the commentary. That attracted the attention of a noble Lord opposite, Lord Reay, when he spoke on Thursday night. He said that it surprised him, and he thought there ought to have been some words in the text itself embodying the Report; but there is nothing of the kind.

That being so, one must turn to other authorities, and I turn to the discussion at this conference to which I have referred. Mr. Arthur Cohen, a supporter of the Declaration, is evidently exceedingly doubtful whether the text is to prevail or the Report. The same in the case of Sir John Macdonell, and the same in the case of Dr. Baker, who is hon. secretary of the International Law Society; and Sir Thomas Barclay, who also spoke, had no doubt that it was not to be considered as having authority. Here are some very weighty opinions. I want His Majesty's Government to tell me whether they are right or whether they are wrong. What have we heard in your Lordships' House on the matter? We heard a speech the other night from what I may call the fountain head, a most learned speech—your Lordships' House is the only assembly in the world which could have produced such a speech—the speech of an expert addressing himself to a subject of which he is master. I understood from Lord Desart that, in his opinion, this Report had full authority to explain the text; and in order to reinforce his own opinion, which by itself would have weighed very greatly with your Lordships, Lord Desart cited a certain French lawyer whom he was not able to name but who he assured us was of great eminence, and in that gentleman's opinion there was no question that this Report had full authority.


What I said was that according to the practice of Continental Courts I felt sure it would be accepted as an authoritative commentary and be of Conventional force, but in English and American Courts such a document might not be accepted as authoritative.


It would he of almost Conventional force?


In Continental countries.


The noble Earl has given it as his opinion and the opinion of the eminent man he cited that M. Renault's Report was almost of Conventional force—that is to say, it has almost the same force as the Convention itself. The noble Viscount is surprised.


I shall say something by and by.


That is the opinion of Lord Desart. What is the opinion of His Majesty's Government? We had an opinion of some sort given us by the Lord Chancellor. I should have preferred to say these things in the noble and learned Lord's presence, but as he is not here I hope lie will forgive me. I think all your Lordships who were present when the noble and learned Lord spoke must have realised that, when this Report was mentioned to the noble and learned Lord in an interruption by my noble friend Lord Desborough, the Lord Chancellor showed some surprise. He was evidently taken aback for the moment, if I may say so of so excellent a controversialist. All the resources at the noble and learned Lord's command were at once put in motion, and documents of all sorts and sizes were presently produced on the Woolsack. It was a very astonishing thing that this Report which is almost of Conventional force came as a matter of some surprise to the principal legal member of His Majesty's Government. The noble and learned Lord, having refreshed his memory upon it—of course, he must have been to some extent familiar with the document—was afterwards challenged by my noble and learned friend Lord Halsbury, and then the Lord Chancellor said that it was an official commentary which would be regarded by any Court. That was very carefully chosen language. I have no doubt it would be "regarded." But in what respect would it be regarded? Would it be regarded as authoritative, as binding? Really I am not asking too much when I ask that, before this country is committed by His Majesty's Government to a Convention which touches its most vital interests, your Lordships and the country, and perhaps I may say the Government themselves, should realise exactly to what the country is being bound.

I have a further reason for thinking that there is some doubt in the minds of His Majesty's Government. Among the many ambiguities in the text of the document is the meaning of the word "enemy." In the document itself it is said that where foodstuffs are destined for the use of the enemy they may be treated as contraband. So far as the text of the document is concerned "enemy" appears to include the whole population of the country which is at war, but the Report seems to limit the meaning of the word to "the armed forces of the enemy." The question is, which of these two views is to prevail? If the Report is absolutely authentic and authoritative, it is not necessary to say any more. The expression in the Report is limited to "armed forces," and the Government might leave it there. But that is not so; for, as the noble and learned Lord reminded us, the Secretary of State for Foreign Affairs has promised in ratifying the Convention to issue a special Note stating exactly what "enemy" does mean in our opinion—namely, the armed forces of the country, and not the people as a whole. If it is necessary for the Foreign Secretary to explain in a special Note what "enemy" means, then it is clear that the authority of M. Renault's Report is not complete; otherwise it would not be necessary to make any explanation at all. Further than that, this concession by the Foreign Secretary is of the greatest importance, for if it be necessary to explain one of the words in regard to which there is a difference between the text and the Report., it obviously follows that all the ambiguities ought to be explained, and if they are not explained the Court must take notice of the fact that only one point on which there has been a difference has been dealt with by a special Note.

The inevitable conclusion I come to is that the Government have not made up their minds what is the authority of M. Renault's Report—whether it is to have Conventional force, as the noble Earl, Lord Desart, told us just now, or whether it is merely, in the Lord Chancellor's words—and I am glad the noble and learned Lord is now in his place—to be regarded by the Court, though in what respect it was to be regarded he was not good enough to tell us. This is not a mere theoretical point. I want to call your Lordships' attention in a very few words to the additions which the Report involves beyond the text of the Convention. In the first place, there is the question as to whether this International Court is to have the power of making law. That is a matter which was put to the Lord Chancellor on Thursday. The Report, so I understand—I take it from my noble friend—says that this International Court will have the power of making law. The Lord Chancellor when challenged on that point was very munch shocked, and I am not surprised, considering his great position and judicial training, that he should have been shocked, at the suggestion that this Court should absolutely have authority to make law. But, my Lords, if the Report is to be believed, if it is of Conventional force, then, although the Lord Chancellor is shocked, the fact remains.

Then we turn to Article 35. There your Lordships will see that in determining the destination of a ship the ship's papers are to be treated as conclusive, with a certain limited exception. How does the Report deal with this? These are the remarkable words of the Report— It must not be too literally interpreted, for that would make all frauds easy. How is a Court. going to interpret this very precise provision if M. Renault's authoritative Report says that this particular provision must not be taken too literally, for otherwise frauds would be easy? Is that the kind of Code of law, is that the kind of precision, the kind of certainty, of which the noble and learned Lord is so proud? When you come to look into this Convention will it not be found that these provisions are not precise, that they are not certain, and that they are not such as the noble and learned Lord himself would pass in a Bill submitted to your Lordships' House?

I next come to the word "base." The noble and learned Lord will remember that this point was raised during the discussion On Thursday. The term used in the text of the Convention is "a base for the armed forces of the enemy." The importance of the matter is this, that where foodstuffs are being taken to a base for the armed forces of the enemy they may be treated as contraband. The text says "a base for the armed forces of the enemy," but the Report goes much further than that. The Report explains this word "base" to include base for supply. It is quite specific and quite clear. The noble and learned Lord was faced with that difficulty. He was told by my noble friend Lord Desborough that there was this distinction, but he did not attempt to explain the ambiguity or the divergence, and the fact remains that with regard to this vital matter—namely, the ports which will be open for the supply of corn and foodstuffs to this country in its last extremity—the Government do not know what they are committing themselves to. I quote against the noble and learned Lord the noble Earl, Lord Desart, his Plenipotentiary. The noble Earl says the Report is almost of Conventional force. 'The noble and learned Lord referred to the Report and apparently treated it as of very little value; and the difference between the two texts in a matter of this land, which is a matter of life and death to our country, is to remain in this vague state when the ratification of His Majesty is granted to the Convention.

I turn for a moment from the uncertainty of this Report to some of the effects of its provisions. Through this fog of uncertainty we seem to discern the sinister outline of future disaster to our country. The first criticism which I venture to make of the terms of this Report is that they differ essentially from the terms which His Majesty's Government desired should be agreed to by the Powers. If your Lordships will study the Instructions which Sir Edward Grey gave to the Plenipotentiaries you will find that they differ in most vital respects from the terms which were ultimately agreed upon. Sir Edward Grey was not for conceding that there should be this vagueness as to where foodstuffs might be consigned in time of war. On the contrary he laid it down in express terms that foodstuffs should not be treated as contraband unless they were destined to a beleaguered fortress, and in other respects he was equally precise. He said that the sinking of neutral prizes could in no case be admitted as possible or allowed. In both these respects the Convention differs from the views put forward by the Secretary of State. That is my first. criticism. My second criticism is that the very nature of this Convention involves this consequence, that however harshly an enemy might interpret the terms of the Convention all redress is postponed till after the war is concluded. That was the principal argument put forward. by my noble friend Lord Selborne in his speech the other night, and the Lord Chancellor, who followed him on that occasion—it is a remarkable fact—never touched the point at all.


I did not agree with him.


The noble and learned Lord did not agree with him, I am sure, but in his speech he did not deal with the point. That was a very remarkable omission and a very remarkable circumstance, because it was much the strongest point in my noble friend's speech. Now, what is the effect of this postponement taken in connection with the ambiguities to which I have already drawn your Lordships' attention? What will inevitably be the attitude of the foreign Power, or rather of the commanding officer of the enemy's ship? He will say, if there is a shadow of doubt as to the applicability of the clauses of the Convention, "Let us treat the foodstuffs as contraband; let us sink the neutral ship. The matter, no doubt, will have to be decided hereafter, but that will be after the war is over. It is a matter of quite secondary importance how it is decided then; it may be that I shall turn out to be wrong, but if we are victorious in the war I am quite certain that will not be held to my disadvantage." It is very probable that in future wars, after this Convention becomes international law, one of the ordinary conditions of peace will be that the beaten party pays all the fines which the International Court will impose; and, therefore, this commanding officer's action, unless, of course, defeat ensued, would not matter to him or to his country. If England were defeated she would have to pay the costs of the very outrage which had so much assisted towards her defeat. The Lord Chancellor himself was quite aware of this point. He applied it, of course, to England, and he thought it was rather in favour of the Convention. He said that if, in the course of our operations as belligerents we were challenged as to the right of doing any of these things in the Convention, we should have an opportunity of saying that we preferred to go before the International Court. Exactly, but so will our enemies have the opportunity of saying that, and the result is that all redress will be postponed until afterwards.

My Lords, just think what this will mean. I am not so confident of the power of my country as is my noble friend Lord Ritchie. Powerful as we are, and magnificent as our Fleet undoubtedly is, any one who looks round on Europe to-day must; see that the contest on winch we may be engaged with Powers growing in strength every day in respect of their fleets would be of the most arduous kind, and although I do not doubt that we should fight our hardest we are not entitled to take any chances. We have to protect the whole of our immense seaboard, and unless we can protect it, according to my noble friend Lord Ritchie, the country must starve. My noble friend Lord Selborne put this point to your Lordships, but as the noble and learned Lord has not dealt with it the House will forgive me for shortly putting it again. As matters stand without the Convention, if there was an attempt on the part of an enemy to capture or destroy as contraband all ships carrying foodstuffs to our ports, there would be an uprising on the part of neutral Powers at once. It is absurd to think that the neutral Powers would allow an enemy to do what he liked with neutral shipping as matters stand at present, even if our enemy was so disposed. As a matter of fact a belligerent would be effectively controlled by the public opinion of the neutral Powers. The noble and learned Lord alluded on Thursday to a certain amount of friction between us and Germany at the time of the South African War. That is perfectly true, but the noble and learned Lord knows quite well that the protests of the German Government had immense weight with the British Government at that moment. The protest of the neutral Tower that we were interpreting international law harshly—I am not going into the merits of the case—was most effective, and had to be taken account of.

If this Convention is not passed do you mean to tell us that if a belligerent interpreted his powers harshly and treated as contraband of war the cargoes of all neutral ships carrying foodstuffs, wherever they were destined among the ports of our country, that would be submitted to by neutral Powers? I am certain it would not; and the certainty that it would not be submitted to would be an effectual check on the belligerent. But if this Convention passes the neutral Power itself would be a signatory to it and would be bound by it; and what would happen would be; this, that when an enemy began destroying or capturing ships carrying foodstuffs to our country on the ground that they were going to bases of supply, the enemy would reply to a protest by saying, "It is all right. You can go to the tribunal after the war is over and get compensation. You must not take the law into your own hands and say that you can determine what a ' base of supply ' is; that is a matter for the tribunal hereafter." And so they would merrily go on capturing ships carrying foodstuffs, not caring a jot or a tittle what happened before the tribunal afterwards, because if they were victorious they would not have to pay compensation. My Lords, that is a point which the noble and learned Lord did not touch upon in his speech, and it is a point which we would ask the noble Viscount to address himself to. We ask him to tell us how the Government defend this ambiguity in the light of the difference which it creates, and why redress should not be available; at the moment instead of being postponed until the end of the war.

I do not intend to detain your Lordships any longer this evening. I have done my best to summarise the arguments which have emerged from our side of the House during this three days' discussion, and I want to conclude, if I may, by an appeal to His Majesty's Government. I do not think it is a matter of surprise that the Convention containing as it does all these ambiguities and provisions full of menace to the future, has been received with great disfavour by some of our large Dominions over the seas. I do not know it on my own authority, but I have heard it stated in the course of the debate, and I believe it is so, that that is certainly the case with regard to one of our great Dominions, and I understand that before the ratifications are exchanged His Majesty's Government are willing that the matter should be discussed. I am glad to hear that. But it is not only our Overseas Dominions who are protesting against this Convention. The Chambers of Commerce in this country are also protesting against it. I do not think the Government will say that the opinions of the Chambers of Commerce are to be despised. Why should they be despised? They are vitally interested. These are matters to which their attention is being continually drawn and matters which would mean a great profit or a great loss to them hereafter. The Chambers of Commerce have nearly all discussed this point, and thirty of them, including the Central Chamber of Commerce, have passed a Resolution adverse to the Convention. Then take the Chambers of Shipping. I do not think that any member of the Government will say that they are to be despised. Out of ten Chambers of Shipping all except one have passed hostile Resolutions, and I believe that that single one, which was quoted the other night, is beginning to reconsider its favourable view of the Convention.

Now, my Lords, in the face of this adverse opinion, what is it we ask the Government? We do not approach them in a hostile spirit. We do not say to the Government, "Tear up your Convention," but we do say, "Before you take this perfectly irretraceable step, of committing this country without the possibility of going back for twelve years, will you have an inquiry into the precise meaning and the exact effect of the provisions to which you propose to commit us?" That is, may I say, a most reasonable request, and I earnestly hope that His Majesty's Government will either grant the request, or will, at any rate, not shut the door to the possibility. My authority is, of course, of no value; but after listening to the debate I have ventured to put before your Lordships some reasons for thinking that the Government really have riot appreciated what the effect of the Convention is, that they do not quite know its meaning, and that they have not reflected upon the dangers which it conceals. "In those circumstances I earnestly hope, if they do not consent to my noble friend's Motion to-night, that they will at any rate keep an open mind on this point, and before the ratification is finally exchanged submit this Convention to a careful inquiry by a body competent to deal with it.


My Lords, I need not say that I strongly concur with the noble Marquess in his view of the vital importance of the subject your Lordships are now discussing. I think it was my noble friend Lord Desborough who said the other night that its consequences are far-reaching—much beyond the consequences of many other topics of the day which excite much more passion and much more general and more lively interest. The House may congratulate itself, as the noble Marquess has implied, upon these three days of discussion. It has been my fortune to listen to many thousands of debates, but I have never listened to a debate in which the temper—if I may say so without presumption—was more serious, from which Party spirit was In. re excluded, and in which the gravity of the arguments and the full statements of the various views were more excellently sustained and established.

The noble Lord, Lord Ritchie, who resumed the debate to-day, said that what astonished him was the ignorance of many persons outside as to the important points which are being raised in this Declaration. I am quite aware of the prevalence of that ignorance and that laxity of language and of mind. But then I am lenient, and the case, after all, is a very complex one. I believe my noble friend Lord Desart himself will agree that you do not pick up all the threads of this enormous web without a really serious and rather troublesome exercise of mind. Why is it complex? It is complex because it concerns our rights as a belligerent, it concerns our rights as a neutral, it concerns the rights of other Powers both as belligerents and as neutrals, and you have to be constantly studying the Papers and the proposals in the Declaration now under discussion, to be constantly changing your angles of vision and putting yourself in different places and taking up new points of view. The noble Marquess said he was afraid perhaps I might bring to this discussion the spirit of the diplomatist rather than that of the lawyer, and then he said that, possibly, I was not so practised a diplomatist as some other persons.


I withdrew that. I did not mean to be in the least uncivil to my noble friend.


I am quite sure of that. We ought not to look at this Declaration merely as diplomatists; still less merely as lawyers, not even entirely from the point of view of Lord Musketry, who said this Declaration was going to do away with the merchant shipping service of this country. It filled me with horror when I heard his words. If that were so, I should not get up in this House and defend the Declaration. I think that is a delusion on Lord Muskerry's part. The Declaration, of course, is more or less in the nature of a diplomatic transaction; it is a set of international arrangements, as I shall show a little later on.

Perhaps I had better deal at once with the points which the noble Marquess has put, and first I will deal with the simplest. I am diplomatic enough for that. He quarrels with the Declaration because the word "enemy" is a too vague word. Does it mean enemy Government, or does it mean enemy population, or what does it mean? Report or no Report, it is perfectly clear that, looking at Article 34 and reading it—as it must be read—in conjunction with Article 33, the expression "enemy" can only mean enemy Government. At all events, that is the intention with which it figures in the Declaration. Then he complained that it was too vague and not precise enough. There, again, we are not construing an Act of Parliament; we are not really construing or deliberating upon a Code, properly so called. It is a Code which must be capable, from the nature of the subject-matter concerned in it, of more or less elasticity and adaptation, not in principle but in application.

Now with regard to the Report, which the noble Marquess dwelt upon at great length, as many other critics of the Declaration have done, he seemed to suppose that no language is to be found in any of the books or any of the papers bearing upon the point, concerning the relations of the Report to the Articles in the Declaration. There is a very important passage which has been brought to my notice in the Report itself. It is on page 35 of the Blue Book on the Conference in London. What does it say? It reads.— We now reach the explanation of the Declaration itself, on which we shall try, be summarising the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, may serve as a guide to the different authorities—administrative, military, and judicial—who may be called upon to apply it. It is an error to speak of this as M. Renault's Report; it is the Report of the Conference, which received the approval of all the Powers represented.


The Government are called upon to ratify the Convention. The question is whether they are going to ratify the Report as well as the Convention. If it is only the Convention, there is nothing in the Convention embodying the Report. What the noble Viscount has read out is a phrase in the Report which talks of the Convention. It would be much more to the point if he read out a phrase in the Convention which referred to the Report.


I would like to real some words quoted the other night by my noble friend Lord Desart. This is language as to the Report by a high, competent, and first-hand authority. He says— It was not made to satisfy the friendly curiosity of international lawyers, but to serve as a guide for the administrative, military, and judicial anthorities who might have to apply its provisions. It was the work of the whole Conference, and has nothing in common with the preamble going before an ordinary law to which the Courts may apply the interpretation that they think right. The intention, as we believe, of the signatories to the Convention was to adopt it as an approved commentary. I cannot carry it beyond that point. I think the Report is placed there as an approved commentary; and it is quite true, if the noble and learned Lord opposite insists on our regarding the Declaration as if it were an Act of Parliament to be applied by an International Court, that in applying the principles and details of this Declaration the International Court, if they are puzzled at anything in it, will look at this explanatory commentary.


Does the noble Viscount mean by an approved Report or an approved commentary a commentary approved by the signatories?


I understand so. Whilst the noble Marquess calls in question the authority of the Report on the Declaration, my noble friend Lord Desborough has criticised the Prize Court Convention on the strength of a passage in the Report of the second Peace Conference of 1907 on that Convention. The passage occurs in that part of the Report which commented upon Article 7. In virrue of that Article the International Court is, in the absence of Conventional stipulations binding upon the parties and of generally recognised principles of international law, to give judgment in accordance with the general principles of justice and equity. It is to such a judgment that the Report refers when it says that the Court will be called upon to "make the law." No occasion for thus "making of the law" can, therefore, arise except in cases not governed by any generally recognised rule of international law. When the Prize Court Convention was signed in 1907 and the Report on it made, there was a wide field of prize law in which the practice of nations was so divergent that no rules could be said to be generally accepted. It was for this reason that His Majesty's Government refused to accept the Prize Court Convention unless and until definite rules concerning the law of prize had been agreed upon. This has been effectively done by the Declaration, and the ratification of the Declaration will have the effect of practically eliminating, except in some few instances, all those cases in which, otherwise, the International Prize Court would have been called upon, in the words of the Report, to "make the law." I turn to another point. The noble Marquess pointed out, as many critics outside have done, the difference between the instructions given to the British delegates by Sir Edward Grey when he appointed them and what was afterwards acceded to. Let us look and see what were the instructions. The Foreign Office often gives instructions to Ambassadors and delegates; and if you are carrying on complex negotiations you do not say to your Ambassador, "What we want is so and so; unless you get that we will take nothing." Sir Edward Grey in his instructions neither said it, nor could he have intended it, and to argue, as the noble Marquess does, that because we could not get all that we sought, therefore we ought not to take what we could get is surely very defective logic. The noble Marquess, taking up a point raised the other night by the noble Earl, Lord Dun-raven, used language which, accustomed as I have been to revolutionary language in this House during the last year or two, surprised me. It is admitted that hitherto, the law and practice of the Constitution has been that the treaty-making power rests with the Crown. That is not denied by any one. The language used by Lord Dunraven was a little more definite than that of the noble Marquess, but in either case are you not committing yourselves to a somewhat dangerous doctrine? I will explain what I mean by dangerous. There is a great State in which the treaty-making power is divided between the Executive and the Legislature, but I am not sure that those who have to deal with that great and most friendly community always find that an advantage, and I think you will be introducing a very dangerous principle or maxim into our own Constitution if you impair the treaty-making right now vested in and practised by the Crown.


I said nothing to challenge that.


I only throw that out as a caveat, which you may take at its own value. I should like to deal, quite rapidly, with some of the points that have been raised in this most instructive debate before I come to what I believe is the real thing that remains and deserves serious consideration—that is, the Royal Commission. I will postpone that for the present, if I may, although I regard that which the noble Marquess wound up by pressing upon us as worthy of very serious consideration. My noble friend Lord Desborough, speaking about the free list in the Declaration, said— There is nothing particular in the free list—only cotton. My Lords, I happen to come from the cotton county of Lancashire, and if the noble Lord were to go there and say that the free list was not worth anything because only cotton was added to it, he would be enormously surprised at the outcry he created.


I did not say it was not worth anything. I said that only two new articles—cotton and hemp—had been declared non-contraband. I did not deny that they are important, but I said that all the others had been declared non-contraband before; and I would remind the noble Viscount that two of the most interested Chambers of Commerce in Lancashire have passed a Resolution against the Declaration.


If the noble Lord will go and feel the pulse of Lancashire he will learn whether the people of that county think the omission or inclusion of cotton is a thing which is of no importance. Then it is urged that the enemy may not observe these new rules. They may not, but what reason is there to suppose that they would observe the old rules? Then Lord Desborough asked whether the Declaration would be binding on Great Britain whether the Prize Court was ratified or not. It would be possible to erect and constitute that Court even though you reject the Declaration, but in the opinion of His Majesty's Government as at present advised it would be an extremely inexpedient step; it would be far more expedient to combine the Declaration with the constitution of the Court as proposed.


That was not the object of my question. What I wanted to know was, supposing the International Prize Court, which has to go through both Houses of Parliament, is not set up, will these new rules of war be binding on all our national Prize Courts


That requires very careful consideration, and before I could say that it would be absolutely binding it would be necessary to know what were the executive directions. Certainly no one will deny that if you reject the Declaration this year we shall have taken up a position with regard to some of the points concerned which would make it very difficult for our Prize Courts to go against it. That is my own opinion.


If the Act of Parliament does not pass does the Declaration fall to the ground?


I do not know. The noble Lord knows that all these strictly legal questions require a careful way of answering, which would not be satisfied in this case by my saying off-hand whether it would or not. It is a perfectly right question, but it has no bearing on the point as to whether we should or should not ratify the Convention. I am dealing now with the detailed and incidental points that struck me during the progress of the debate. They all, I think, made an impression on the House, and they deserve to be briefly dealt with.

Lord Selborne blamed Mr. McKinnon Wood, the Under-Secretary of State, because he said that the refusal of this ratification would give a new stimulus to the competition in naval armaments. Lord Selborne said that he did not believe that it would cause the Navy Estimates in any country to go up or down by a single sovereign. How would the rejection of the Declaration be regarded? Continental Powers would see the greatest naval Power in the world declining to be bound by rules of naval warfare that were not her own. That would be how they would interpret it. If that be so, I am sure that Lord Selborne will see how our action would be regarded by such bodies as Navy Leagues in the great countries of the Continent of Europe who would demand an increase in their Navies—increase upon increase. I am sure that we should, if we found any other Power taking a similar part, demand an increase of the Navy to protect our commerce against the arbitrary construction of rules of naval warfare by a Power of overweening strength and pretensions.

There is the point that has been made in the popular and Press discussions that the scheme of an International Prize Court was made in Germany. That is the allegation. What are the facts? The German plans were presented independently and simultaneously with our own. The proposals were not identical, as a matter of fact: We proposed an International Court and took an active part in preparing the Convention. Our Government, of course, closely watched the progress of the deliberations of the Conference. Germany, France, Japan, Italy, Austria, the United States, and most of the other States were all, so I am informed on the best authority, as active as we were in the discussions. Germany was not more active or more prominent than other Powers, especially such Powers as France and the United States. The same is true of the deliberations of the Naval Conference which negotiated the Declaration of London. Is it not rather ludicrous, my Lords, to talk of "attempts on the part of Germany and the weaker naval Powers to alter the laws of war to the detriment of Great Britain?" That, to the best of my knowledge and belief, is a pure fiction.

The noble Lord, Lord Weardale, mentioned the other night a certain poster a propos to the right of destruction. It is a picture, I understand, of a British vessel being sunk by an enemy's warship. I am the last person to be over-fastidious about posters. The honours with regard to posters are, I think, about equally divided between the two sides of the House. But let us look at this poster. What does it really mean? It can only mean two things—that but for the Declaration neutral ships would never be destroyed, and, secondly, that it is the Declaration that confers the unlimited right to destroy. I have seen some perverse posters in my life, but I cannot imagine a more perverse poster than that one. As if a neutral ship could not be sunk now according to any rules laid clown by the commanders of the nation that claims that right. I submit this to the most doubting critic that the Declaration has to encounter, that the checks on destruction are stronger under the Declaration than they would be without it.

The noble Marquess spoke on the subject of bases, and this requires a little more lengthened treatment. When the purpose of Article 34 is borne in mind, and when it is remembered that the object of it is only to meet cases in which it will rest on the owner of the goods to prove the innocence of the consignment, the authorities do not think it is at all likely that a Prize Court would hold a commercial port, such as abound on our coasts, like Southampton and Bristol, to be a base. It would be entirely a question of fact. The words of the Declaration are, "A port serving as a base"; that is to say, a port at the time serving as a base.


Of supply.


Quite true.


The noble Viscount accepts, then, that the terms of what we have inaccurately called M. Renault's Report apply not only to a base of armament but to a base of supply.




The distinction is a very important one.


I quite agree. What does a base of supply mean? Take a naval base—a port that contains, gathers together, and allows egress for supplies for an enemy's ships. A vessel coming out of such a port habitually, constantly, and systematically would no doubt constitute that port a base of supply. It has been argued, I observe, in some places that the possibility of a cargo coming to Southampton or to Bristol, and the provisions eventually reaching Aldershot, would constitute Southampton a base of supply, and the argument is that as that might apply to every other port in the country it would deprive us of access through these ports to foodstuffs and cargoes of that kind.

Take the case at its highest. Assume that every port in the, United Kingdom would be held to be a base, and, therefore, that every neutral ship with food supplies would be a justifiable capture, because food supplies could be presumed to be contraband until their innocence was established. Even then, as was pointed out the other night, I think by Lord Desart, the importance of that question has been exaggerated, because of the seaborne food supplies of the United Kingdom 90 per cent. are carried in British ships and only 10 per cent. in neutral ships. The 90 per cent. in British ships could only be safeguarded by the action of the Navy, that is, by harrying and hunting down the enemy cruisers, and the steps taken to protect British ships would equally keep the seas open for neutral ships bearing food supplies, and there is no reason to assume any high proportion of captures of neutral ships, or that neutral ships so captured would have a material effect on the food supplies of this country. If the Declaration were not ratified, the position of neutral ships in this respect would not be better, but worse. The noble and learned Earl opposite said something about proof the other night. In this matter the present practice is that the onus of proof is always on the owners of the goods, and the judgment of the Russian Supreme Prize Court, in the case of the ship which has been referred to in this debate, during the Russo-Japanese war, and dealing with the parcels of foodstuffs in the cargo, was that in all such cases, according to the practice of Prize Courts for many centuries— the onus of proof would undoubtedly lie with the individual seeking recognition of an irregular destination and the release of vessels and cargoes arrested on suspicion. Really, the important consideration in this matter of base of supply on our own coasts is that it must be serving at the time as a base of supply and must be connected with military or naval operations.

Now, my Lords, I go to the proposal which is really the proposal before the House—namely, a Royal Commission. As to that, I would make this general remark. The objections—the point, I think, was made by Lord Reay the other night—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. That is what I feel, and I feel it particularly when you speak in favour of this Royal Commission. There cannot be a more fascinating and attractive vision in the world than a body of impartial and competent gentlemen sitting as a Royal Commission to decide these matters, but the chiming dream is dissipated when you look at the facts under which this Declaration comes before the country and before your Lordships' House.

There was first the Conference at The Hague. Many things were left open at The Hague. We then invited a second Conference to be held in London expressly to deal with these questions. The whole set of questions was carefully considered by the body so constituted, the London Conference, which contained, I would remind your Lordships, representatives of the Admiralty, of the Foreign Office, as also the Secretary of the Committee of Imperial Defence. What does this Motion which is now on the Table of your Lordships' House mean in plain English? I will venture to tell your Lordships the interpretation which will be put upon it by the persons concerned. What does it make us say to the Powers whose representatives we invited to assemble and who did assemble here? This is what I think it makes us say:—"We invited you to come here. We asked you to thresh out in detail the matters left open at The Hague. We admire the care, the diligence, the acuteness with which you conducted your deliberations. We recognise the sincerity with which you sought to find common ground for adjusting the questions outstanding amid conflicting interests. But, gentlemen, we have so little confidence in the results of your wisdom and your toil that we propose to throw the result overboard and to set up a new body of our own to find new answers to exhausted questions." That is the view which the Powers who were parties to that Conference will take, and I would respectfully suggest to noble Lords sitting on that Bench [the front Opposition Bench] that the day may come, some time or another, when you may have to deal in somewhat difficult circumstances with foreign Powers, and I shall be very much surprised if, in the case of their protesting against any line or any action of yours, they do not show their want of confidence in your capacity for doing business. I shall be very much surprised if the Declaration of London has not by that time become rather a by-word, and if they do not remind you of that transaction. Your Lordships may think that the Declaration is in need of, and the Declaration is open to, amendment. Does anybody suppose that this amendment would be easier to attain if, after inviting all these Powers to confer and discuss, you flung away the result? Will it make it easier on future occasions? Does anybody suppose that the rejection of this Declaration now, or the postponement of it until you have overhauled the deliberations of this extremely diligent, competent, and conscientious body, will not cause discouragement, disappointment, yes, and irritation, among the nations of the world? Human nature being what it is, I ant sure it must.

I will not discuss to-night any question of increased armaments, but this I will venture to say. Is the fact that you recognise, that we recognise, the policy of the necessity of strong armaments any reason why you should not accompany this strengthening of your armaments by taking along with it a policy which seeks to settle international disputes by international Courts and international agreements? On the contrary, so far from it being a reason why you should not do that, it is another, it is the best reason for doing it, and if by rejecting this Declaration you show yourselves unwilling to accompany increased armaments with this, it will be the despair of civilisation. It is impossible to deny, even those who most of all object to this Declaration will not deny, the gain to the world of anything that draws the great. States of the world to enter upon and follow up a course leading to collective agreement and concert, where, formerly, there was disclosed nothing but disagreement and confusion. The Peace Conference of 1899 and that of 1907 laid the foundation, if they did no more, of an agreement on principles of international law, which before were vague and doubtful and left neutrals to the arbitrary decisions of Prize Courts. Those were instruments which laid the foundations for a better state of things.

Nobody believes that moral influence alone will save or enable a great and powerful State to do its work unless the rulers of that State, to use a cumbrous phrase, "keep their powder dry." Nobody has argued for this Declaration upon any other principle. On the contrary, no Englishman would argue for the Declaration, or for the ratification of the Declaration, if he did not take for granted in every page and every line of that Declaration the doctrine and the policy of the supremacy of Great Britain at sea. This is no empty sentimentalism. But, though nobody in his senses believes that moral influence alone will save a State and retain its power, I am sure that nobody in his senses, nobody who has read history, who is familiar with modern diplomacy and the currents of that diplomacy, and realises the spirit which is slowly forcing its way through democracy both in Europe and elsewhere—no one who thinks of this will deny that moral influence in itself is a valid, practical, and substantial asset which a nation ought to be proud to possess and which it would be madness to throw overboard.


My Lords, I had no intention of speaking in this debate at all, but, having listened to practically the whole of it, I wish to make one or two observations on certain points that have been raised, not of a controversial character, and to respectfully ask your Lordships' House to press for further consideration of this Declaration. I do not ask, and I do not wish to be thought to ask, for any special mode—it may be by reservation should this Declaration be ratified, or it may be by further consideration before it is ratified; but there are points which have come out in this debate which I respectfully urge do require further consideration.

The noble Viscount said a moment ago that the policy which is opposed to this Declaration was a policy which objected to entering upon negotiations for the settlement of questions of international law. I will be no party to such a policy. I welcome all attempts among civilised nations for settling questions of international law, and I can give very practical reasons for so saying. I hope I may be allowed to refer to my own experience. I have had the privilege of appearing twice for my country in great international arbitrations, and I say most emphatically that I would far sooner go before an international tribunal to argue whether a Treaty or Convention had been broken or observed than I would go to argue whether a principle of international law had been observed or broken. I can endorse what has been said in the course of this debate, that if you are dealing with a Convention or a Treaty you stand to a certain extent upon some solid foundation, whereas if you are arguing a principle of international law your foundations are very sandy, if I may use the expression, because there is always the greatest controversy as to what the principles of international law are, having regard to the different views entertained by different nations.

I am, therefore, most anxious to do everything in my power to promote the coming to agreement between civilised nations upon such questions, but there are one or two points that have been raised in this debate, not of a controversial character, which I think are so strong and so important that they do require further consideration and reservation. I will deal with one which was referred to a few moments ago by the noble Viscount, and that is what has been called the Renault Report. The noble Viscount read from the opinion of some no doubt great authority—I do not know who it was but an anonymous authority—as my noble friend, if I may so call him, Lord Desart, did, that the Report will be regarded as having Conventional weight. If that is to be so, if we are going to invite that position, let us make the Report a part of the Convention. Let it be agreed one way or the other whether it should or should not be so regarded; and above all things, let the differences between the language of the Report and the language of the Declaration be solved by one or the other being adopted. I am not speaking without my book on this matter. I have had to deal with this specific question. I have had to address international tribunals upon it. I had the assistance of my noble and learned friend in one of the longest arbitrations on the subject, and I was junior to the late Lord Chief Justice in the first great one. We had to deal with this particular question as to what weight was to be given to contemporaneous documents which passed between nations at the same time as a Treaty or Convention, and it is quite impossible, if I may say so with great respect, for any international lawyer to stand up and say that a Tribunal will regard a Report of the character of M. Renault's as having a Conventional force. I say so with great deference to the noble Earl, Lord Desart, because I know his immense learning and experience in this matter. All I say is that you must not assume, for the purpose of this discussion, that the Report is going to have Conventional force. I am sure the noble Viscount will not misunderstand me when I use that as a plea for delay and further inquiry. Either there must be in connection with ratification an express reservation as to what the position of the Report is to be, or there must be an agreement that the Report is to be treated as having Conventional force. If that is going to be adopted you must have the differences between the Report and the Declaration removed; otherwise you will have the inevitable argument that there is a contradiction between the Report and the Treaty, and that one must be adopted and not the other, and then, of course, the Declaration would be said to have the greater force. I mention this subject only because I think it quite unsafe—and I speak with a feeling of great responsibility—to advise your Lordships or the country to accept this Declaration on the plea that the Report will be regarded as binding by some tribunal that comes to consider the matter fifteen or twenty years hence.

There is another point that has not been answered. I listened to it with great interest when my noble friend Lord Halsbury spoke. It has been assumed in the course of this debate, and I do not deny that there is some ground for the assumption, that this Declaration will be favourable to Great Britain as long as Great Britain is a neutral. The Lord Chancellor assumed it in the course of his speech, and I do not differ from him in general principle. But the real test of that is the law that is going to be administered by the International Prize Court. As Lord Halsbury put it in the course of his speech, we ought to have some idea, at any rate, of the extent to which the recognised principles of international law are going to bind the International Prize Court before we accept the view that this part of the scheme, even from the point of view of neutrals, as quite satisfactory. It seems to be forgotten by those who investigate this subject for the first time that the prize law of the world is really the British prize law, and that since the time of Grotius and those great men of generations ago who founded the international law all the authorities that have been created have been, practically speaking, created on the authority of British prize law. If your Lordships read Storey's Prize Law, the standard book on the subject, the book recognised between the United States and ourselves and by the world generally, and look at the authorities cited there, you will find that nine out of ten of them are the authorities of Lord Stowell awl the authorities of the English Courts. The American decisions, which are also of very great importance, were based upon the same law. Therefore it is not a vague point which Lord Halsbury put forward when he asked that some assurance might he given as to what law would be administered in this International Court of Appeal. I mention this again for the purpose of saying that there is room, so to speak, for further consideration; there is a necessity for further reservation; and therefore, without for one moment saying that it is to be in this way or in that way, it seems to me that it is a matter proper to be brought before your Lordships' House in order that there may be some further consideration of it before this Declaration is ratified.

I pass from that in order to say a very few words upon what is, after all, the most difficult part of this case. We have been invited to deal with this Convention as a whole, and to take this and that, because as a whole it would be desirable and advantageous to us to do so. I quite agree—and I say so most unfeignedly—that with regard to blockade and some of the other minor parts of this Declaration the arrangements seem to me to be very good, and no serious objection can be taken to them. But when we come to Chapter 2 relating to contraband of war and Chapter 4 as to the destruction of neutral prizes, it seems to me that they call for further consideration. I recognise to the full that the labours of this Conference were largely undertaken on the invitation of this country. I recognise that there does rest upon us a moral responsibility to endorse as far as we can the labours of this Com mission. I am not going to say one single word against that feeling. But when all is said and done we must look, and it is not right to forbid us to look, at the provisions of the Declaration in order to see whether the vital interests of this country are or are not protected, and in my humble opinion those two most important Chapters, Chapter 2 and Chapter 4, which deal with contraband of war and the destruction of neutral prizes, will require reservation. Before the Declaration is confirmed or otherwise the interests of the country require to be protected.

I speak with very great deference, but this is no new subject to me. I had the honour and responsibility of advising Her late Majesty's Government when the South African War began. Up to that time this country had not been involved in any great war since the Crimean War, and—I am telling no secrets—all the questions with regard to contraband had to be revised at the Foreign Office. With the assistance of my distinguished friend Sir Robert Finlay I spent hours and days in considering the matter, and I hope we left it in a little better condition than we found it. I say no more than that. This subject of contraband, of conditional contraband, and of continuous voyage is not a subject that I have had to get up for the purpose of this debate. It has been burnt in upon me by hours and days of study, and therefore. I hope I shall not be considered presumptuous in venturing to say a few words to your Lordships about this. although, as I say, I had no intention of intervening in this debate at all.

It seems to me that the noble Earl, Lord Desart, and my noble and learned friend the Lord Chancellor have pitched their defence in too high a key. It may be that Lord Desart spoke with the feeling of a parent—or rather of a godfather or guardian, and it may be the feeling that this country ought to ratify this Declaration which has prevented them from adequately appreciating the fears and apprehensions that are felt by persons who have considered these Articles and whose opinion ought to be regarded. Do not let it be thought that this is a Party question. If this was a Party question I would not say one single word in reference to it. I have felt that responsibility resting on me throughout the whole of my life in your Lordships' House. But I know that fears with regard to this Convention are held as strongly by distinguished men who are supporters of His Majesty's Government as by those who oppose the Government. I do not speak without knowledge of this subject, and I have satisfied myself that these fears are entertained by people who have studied the question quite independently of politics. I will not read the Articles with regard to contraband of war and foodstuffs nor the Articles with regard to the destruction of neutral ships, because your Lordships know them by heart, but I ask whether those Articles do not require a little further consideration and may not require reservation so as to protect British interests.

One answer given by the noble Earl. Lord Desart, the other night, and it has been repeated this evening, was that the proportion of food supplies carried in foreign bottoms is only 10 per cent. as against 90 per cent. carried in home ships. That may be true. I do not think it is accurate, but I will assume it to be true for the moment; and what I have endeavoured to find out from those who have practical knowledge of this matter—and this is not a lawyers' question—is what the condition of things would be in time of war. I am informed by people whose opinion I can value that you must not -assume that that would be the percentage, or anything like the percentage, if this country were at war. Having regard to the high rate of freights that would prevail in time of war there would be strong competition for carrying our food supplies, and there would be a great inducement to carry them under another flag, and it must not be assumed by any means that the necessities of this country to have her food supplies carried in bottoms other than those flying the British flag would be limited to 10 per cent. in the event of a war. Therefore I think, with very great deference to my noble and learned friend Lord Desart, that you cannot answer the objections by simply referring to the statistics existing at the present time. Of course we all agree that if the condition of Great Britain was such that her Fleet was swept off the seas we need not trouble about anything any more at all. Therefore we need not consider that part of the case.

But that is not the answer that has been given. The answer given both by the noble and learned Lord on the Woolsack and to a certain extent by the noble Earl, Lord Desart, is that the interests of this country are protected and the position to a large extent improved by the clause which enables cargoes to go to neutral ports. That is a very dangerous thing to I trust to. Of course, if it could be said that the fact that vessels were bound for Havre, or Cherbourg, or Rotterdam, or Dunquerque their destination was conclusive, and should be held to be conclusive by the commander of the warship of the other nation, well and good; but, as has been pointed out over and over again, and as was pointed out in the passage read from this very Report, the ship's papers will not be considered by the foreign commander to be conclusive, and I do not think the foreign commander would be doing his duty if he did treat them in every case as conclusive. It is well known to be the commonest thing for neutral vessels to have their bills of lading made out to ports where it is never intended that the cargoes shall be landed, and the answer given the other night seemed to me a very dangerous one. I speak with very great deference in the presence of the Lord Chancellor. He suggested that the position of Great Britain would be improved by the ratification of the Declaration because food supplies could be conveyed via Havre, Calais, Dunquerque, Antwerp, or Rotterdam, but it seems to me that without more information it would be unwise to rely upon this as a practical answer to the objections raised.

My Lords, the real fact is, and we ought to recognise it in any consideration of this matter, that Great Britain, with the exception, perhaps, of Japan, stands in a different position from any other of the great nations. America has no fear with regard to her food supplies in time of war. Germany has no fear with regard to her food supplies in time of war, although it may be t hat they might cost her more having to come by train, say from Russia. But our insular position places us in a more dependent position with regard to our food supplies than any other nation in the world, except, possibly, Japan. Then with regard to the clause which speaks about a ship being consigned to a base, is anybody wise enough to say what view ought to he taken by a court as to what that means? Can anybody say that a Court administering justice and equity must decide that any one port in Great Britain is not a base or that any one port is a base? In these circumstances it surely is not asking too much to ask that there might be some further inquiry or some reservation before this country is bound by such a provision. Honestly I cannot see that there is any foundation for saying that things would be better under this Declaration than without it. They may not be worse, and, of course, if they will not be worse, then certainly I think the Convention ought to be ratified. I have made these observations to your Lordships because they struck me as being important points which have come out in this debate which require careful consideration and careful argument. In conclusion, I humbly submit to your Lordships' House that, although you may say we get some advantage in other parts of the Declaration, the national interests of our country ought not to be impaired under this Convention unless we are satisfied that, practically speaking, the food supplies of this country will not be in a worse position when the Convention has been ratified than at the present time.


My Lords, I rise with every feeling of apology for intruding in this debate, but I think it most desirable that the weighty speech to which we have just listened should not be allowed to pass without one or two very brief comments. I know the audacity of the step I take in speaking after the noble and learned Lord. He has had experience, to which he has referred, in international arbitrations which gives him the greatest authority in speaking on this subject. For myself I can claim nothing more than the position of a student of international law; I have been a student of it a good many years, and I can only speak as one who has followed the discussion of this Declaration in the light of previous study.

The noble and learned Lord made three points as his reasons for taking the attitude which he did. As to the first point, the difficulty of reading the Report with the. Declaration, I believe I am accurate when I say that the Report of M. Renault was read over clause by clause before the whole body who drew up the Declaration, and on being put by the Chairman was assented to by the whole of them. In those circumstances I cannot but conceive that that Report has full official authority as the exposition of the Declaration, and that it has the authority which Lord Desalt attributed to it of a conventional character. The noble and learned Lord pointed out that in cases in which he has been engaged either as arbitrator or as Judge there have often been discussions as to the authorities of Treaties and of communications made with respect to those Treaties. Might I ask him whether he has had any case which stands on all fours with a Treaty between all parties and a Declaration agreed on by all the parties simultaneously and exchanged between them, because that would be the only comparison which could be rightly applied to this case.


Not on all fours, but very like it.


All fours is the essence of it, because here you have them all assembled at the same time, coming to the same conclusion and giving their authority to it, and therefore you cannot distinguish between one act of that body and another act of that body, and I should say you must give it the fullest conventional authority. If you can get the Powers who assented to the original Declaration to assent again to a fresh one, no harm would be done; but delay is to be deprecated in this case as indicating some doubt with regard to the conclusions you have arrived at with your fellow diplomats. Also it is quite possible that the ratification might be made taking note of the Declaration as agreed to by the Convention, but I have no doubt whatever that the true interpretation which would be put upon this by any international body such as it is proposed to set up would be that the Report and the Declaration stand upon an equal footing.

The second point taken by the noble and learned Lord was as to the necessity acceding to the demand of the noble and learned Earl, Lord Halsbury, and getting some further definition of the law which is to be administered by the proposed International Court. The noble and learned Lord was of opinion that you must have a further definition. Why a further definition? In the Declaration itself the law to be set up is explained, and, so far as it has been agreed upon, it is there accepted as the law which is to be administered by the International Court. Upon any points which are not yet decided and which are open to conflict of opinion, the law is to be settled in accordance with the principles of equity and justice. The noble and learned Earl and the noble and learned Lord have a distrust of that latter addition, which is explained in the report of M. Renault as the making of law. Yes, my Lords, it is the making of law in the course of fulfilling what has been declared in the Declaration itself. I am not surprised at the two noble and learned Lords taking up the position they have done with their strong inheritance of the traditions of the Common Law. It is the case of equity informing, fulfilling, and, if need be, correcting, Common Law. Equity prevents the Common Law being made a means of fraud, and it is in that sense only that the Report of M. Renault attributes any law-making power to the International Court.

It was with some surprise that I heard the noble and learned Lord the Lord Chief Justice say that the law of Prize Courts is the law of England and the law of Lord Stowell. Lord Stowell was the founder of the law which has been adopted by Storey and Wheaton and American Jurists. I have the greatest respect for the authority of Lord Stowell, and I agree that to a very large degree he made the law of Prize Courts throughout the world. But does the noble and learned Lord mean to say that in the decisions in respect of prizes taken in the Russo-Japanese War the Russian Prize Courts followed exactly the law of Lord Stowell? In the case of the ship which has been referred to in the course of the debate, was it Lord Stowell's law that was followed? The supreme merit of the Declaration of London, to my mind, is that it brings the law of the Prize Courts of the world nearer to the law of Lord Stowell than has hitherto been attained. There is a great deal of distrust felt from the way in which this question has been approached. Distrust of an International Court is a thing of which we ought to be a little ashamed. At all events let us consider this: the International Prize Court would be an embodiment of neutral authority; it would make for neutrals against belligerents; it would reduce the power of belligerents in the interests of neutrals; and it would be to the advantage of the law as declared by ourselves in the past that the International Prize Court should be set up and developed on those lines.

There was only one other point touched on by the noble and learned Lord with which I would ask leave for one moment to deal—namely, the great danger to which we should be exposed under the Declaration of London taken in its entirety in respect to contraband and the supply of food to our country. The noble and learned Lord said with great effect, Who can say what the International Court, when it comes to interpret the law in the future, will hold to be a "base of supply" True, you cannot say in advance what will be the position of that International Court, which will be a neutral Court standing for the rights of neutrals in the matter, and what it will hold to be a "base of supply." But let us compare the situation with respect to our security for food supplies in the future as regulated by this Declaration of London with the position in which we are now. Under the present law, if we were a belligerent our enemy might declare every port in the United Kingdom to be a base of supply with just the same power and just the same effect, and the only power there would be to decide whether that was valid or not would be the Court of the enemy's Own country.


Not at all; the power of the neutrals would resist that.


No doubt there is a moral force in the power of neutrals: I admit that. But the only Court which would be able to decide whether it was right or not would be the Court of the enemy's own country. That is the only way in which the law would be administered. In future, if we were at war, it would be a question again whether Bristol, or any other port, would be held to be a "base of supply." I agree upon that with one point made by the noble and learned Lord the Lord Chief Justice—that neutrals would be much larger carriers of food supplies in the future than they have been in the past; but why should the neutrals, who would be so much interested, acquiesce in the claim that every port is a base of supply any more than they have done in the past.? And where is the appeal in the future to be? It is to be to an International Court which embodies the interests and the views of neutrality, whereas the legal appeal at the present time is to the Court of the enemy's own country.


My Lords, I can avail myself, I believe, of the right of a very brief reply, having regard to my Motion. First of all I should like to express my gratitude to the noble Viscount the present Leader of the House and to other noble Lords for the kind way in which they have expressed themselves with regard to the whole of this debate, and the manner in which it has been conducted. I regret to say, however, that I am still unconverted, although I have listened to all the arguments addressed to your Lordships' House and also carried out the remarkable advice showered lately upon us by the Government as to reading certain books. Mr. Bray's book was recommended. I have not only read his book, but I asked him to a dinner of the London Chamber of Commerce a few nights ago at which several international lawyers were present. His book before dinner did not convert me, and certainly his speech after dinner did not, and his arguments were somewhat roughly handled by the international lawyers present. If we are to be asked to read some of the books on their side why should they not read some of ours. We have nine ewe lambs to their one, and why should they not read the protests from the Shipping Associations and the thirty or so protests from Chambers of Commerce against the Declaration?

In opening the debate in this House last week I pressed the Government for information on four points—first: Is the Declaration, if ratified, binding on the' signatory Powers even if the Prize Court is not set up? Secondly, Is the commentary of M. Renault to be considered an authoritative interpretation of the Declaration? Thirdly, Will the Government name a port in this country to which conditional contraband can be taken in neutral ships in time of war? And, finally, Have any countries yet ratified the Declaration? I do not think I have received a categorical answer to those questions, except to the one with regard to a port. The noble and learned Lord on the Woolsack did give an answer with regard to that and he was good enough to name Bristol. I am glad to hear that Bristol is a port to which grain can be carried in neutral ships when we are at war, because Bristol is a most important port. I have looked up her commerce for some years past, and I find that in some respects as a grain-importing centre she holds an important position. She is the first port in barley in the United Kingdom, and a large amount of foodstuff is imported there. We heard from the Lord Chancellor that Bristol under present conditions is a free port. But I should like to ask him, and this seems to me to be more important, What would the opinion be of a hostile commander who met a neutral ship coming to Bristol? That commander would say, "Bristol is very near Salisbury Plain." I believe that my noble friend on the Woolsack could even now walk from Bristol to Salisbury Plain, where we have one of the largest military encampments in this country, and in his days of greater activity but lesser dignity, when I had the honour of playing cricket with him, he could have walked there and back in the day. It is only 25 miles front Bristol to Bulford Camp, where we have a large permanent Artillery station and a great camp of troops, certainly the biggest in this country next to Aldershot. I have been in camp there myself and I know something about it, and I am afraid that under the Declaration Bristol would be considered a port of supply for armed forces, as indeed it is. And certainly in the Report of the Drafting Committee which is signed by M. Renault it would be considered a base for the supply of armed forces. I certainly agree with the noble and learned Lord the Lord Chief Justice and the noble Lord who has just sat down that in time of war there would be a rush for a neutral flag at first until they saw who was going to be master of the seas and master of the trade routes, and no doubt the grain from North America and the United States would gravitate to United States ports and would be shipped in" neutral bottoms and sent to Plymouth, but whether it would get there under this Declaration is another thing. There is also another matter. A great deal of our Atlantic shipping is in the bands of the United States now practically, although the English flag is flown.

With regard to the Report of M. Renault, the Secretary of State for Foreign Affairs has distinctly stated that that Report is authoritative. I think Lord Desart called it an "inspired commentary," which places it rather higher. I am afraid there was some misunderstanding with regard to this. In my first statement I alluded to M. Renault's Report on Convention No. 12, which sets up the International Prize Court, as being vague. It is, indeed, extraordinarily vague. The report certainly says that the Prize Court is— to make the law, and to take into account other principles than those to which are submitted the National Prize Court Jurisdiction. It also says— How is nationality, property, or domicile to be proved? Is it only by the ship's papers or equally by other documents produced? We intend to leave the Court full power of appreciation. All these matters are most technical. Again the Report says— Every liberty is to be left to the Court as to the appreciation of the various elements furnished to it to determine the conclusion. There is not here a legal system of proof. This was all said when the international system was set up, before the Declaration. That is how the Court was set up, and none of the principles of the Declaration were then thought of. My point is that, instead of getting the unity and certainty that we were promised, we should, by adopting the Convention and setting up a Court in the manner proposed, throw the whole of the existing naval prize law of the world into absolute chaos and confusion.

My Lords, at this hour I will not go into the other points, but I should like to say this. I asked whether the Declaration would be binding without the International Prize Court being set up. The noble Viscount the Leader of the Government, in his reply, did not seem to be aware of what the Secretary of State for Foreign Affairs had said. The Foreign Secretary said— The Declaration of London will be applied by the Prize Courts in the countries which ratify it as part of the Law of Nations. We hear much of the appeal to the International Prize Court, but it does not matter two snaps of the finger w hat that Court decides. It is only a question of compensating the ships that are sunk. It is a question of sending the contraband to the bottom.

I do not intend to press the Motion to a Division. I am very glad to hear that His Majesty's Government are going, although late in the day, to take our Colonies into their confidence. I do not know whether the House is aware that we have already signed at the Hague thirteen Conventions, nine of which have been ratified, and I venture to say that the country will be rather surprised when it learns the terms of some of those which have been ratified. As I have said, I am happy to think that sufficient time for the consideration of this document of vital importance has been agreed to by His Majesty's Government, and perhaps the suggestion thrown out by the Motion and by the noble and learned Lord on my left may, after the Colonial Conference, be carried into operation. I beg to withdraw the Motion.

Motion, by leave, withdrawn.

House adjourned at a quarter before Eight o'clock, till To-morrow, half-past Ten o'clock.