HL Deb 01 December 1915 vol 20 cc488-516

THE EARL OF PORTSMOUTH rose to ask His Majesty's Government—

  1. 1. Whether the adoption of the Declaration of London by Order in Council involves the creation of an International Tribunal.
  2. 2. Whether His Majesty's Government have given any pledge, undertaking, or reason to hope to any neutral that there will be a reference of questions or claims connected with our exercise of sea power to an International Tribunal after the war.
  3. 3. Whether Lord Reading, formally or informally, held out any such hope to the Government of a neutral Power.
  4. 4. Whether His Majesty's Government intend to take any action to reverse the judgment in the Court of Appeal by which companies substantially of enemy character are by mere registration given the status and rights of British companies.
    5. 489
  5. 5. Whether His Majesty's Government have by the Order in Council of 11th March or by any other Ordinance deprived this country of its ancient right to confiscate enemy goods wherever found and of whatever character.

The noble Earl said: My Lords, in putting to the Government this series of Questions I shall attempt to deal with each succinctly and shortly. I see present many legal members of your Lordships' House, and as these points touch very largely upon legal questions I hope that in the course of the discussion this evening we shall obtain some advice and information from noble and learned Lords who are able to speak with authority upon these matters. In the course of my remarks I shall speak from the point of view of a layman, and shall confine my points to those which are outside the strict domain of law and belong to the general policy upon which we ought to conduct the war.

The Declaration of London, which is touched upon in my first Question, has had a somewhat stormy career, and at the present moment it is impossible for any layman to understand exactly how the position stands. Is the Declaration of London now to be enforced, or are parts to be enforced and parts not to be enforced? It is extremely important in the interests of the country and especially in the interests of the Navy that precise and definite information should be given upon this point. The Declaration of London in its early inception was designed to form a code of rules for an International Prize Court, to consist of a panel of judges who were to be drawn, not all from first-class Powers, not from Powers like ourselves possessing great sea force, but from countries of all kinds, including Bolivia, Peru, and Bulgaria. It was an extremely clever device engineered by a very able German whom I had the pleasure of meeting during the short time he was in this country — Baron Marschal von Bieberstein, one of the ablest men in the German diplomatic service; and by Dr. Dumba, Who has also come prominently before the public and has just been recalled from the United States. To put it shortly, it was a conspiracy of land power to destroy sea power; a conspiracy entered upon by Germany to destroy the free exercise of our naval supremacy.

In December, 1911, the Naval Prize Court Bill came for discussion before your Lordships' House. It was a Bill which had received the benevolent support and sanction of the professional lawyers and politicians in another place, and which would have set up the Declaration of London. Your Lordships' House, displaying, I think, much prevision and acting in a purely independent and patriotic spirit, declined to pass that Bill. Under constitutional practice that ought to have killed the Declaration of London. But a great many people were surprised and extremely angry when they found that the Declaration of London, which was the code of rules to be administered by the proposed Court to be set up under the Naval Prize Court Bill which your Lordships had thrown out, was enforced by Proclamation on August 20, 1914, after the war with Germany had begun. That seemed to be not only an extremely unconstitutional act on the part of the Foreign Office, but it was an act for which no apology or explanation has yet been given to this House or to the country. How the Declaration of London now stands, as I have said, is a matter of doubt. Sir John Simon, when Attorney-General, speaking on behalf of the Government in the Admiralty Prize Court in May of this year said that the Declaration of London "is not a binding document on any of the nations of the world." I want that statement confirmed in this House. I want to know definitely whether by Order in Council the Declaration of London is in Force in whole or in any particular, because, if it is, it must involve the creation of an International Tribunal.

I now come to Questions Nos. 2 and 3. Those are specific Questions, and I hope that I shall, in reply to them, receive specific and satisfactory answers. The mission of the Lord Chief justice to the United States has been shrouded in a great deal of mystery. It is not for me now to dilate upon that particular point except to say, and I do so with all respect, that I think it is very undesirable for financial and executive and judicial functions in this country to be carried out by the same person.

Question No. 4 raises a matter which has excited an enormous amount of feeling in the country. I believe that my noble and learned friend below me, Lord Halsbury, has introduced into this House to-day a Bill to amend the law upon this subject; and that my noble and learned friend feels this to be a matter of great urgency is, I think, self-evident from this fact, that he would not himself be anxious except for paramount reasons to introduce a Bill to upset a decision of the High Court. Now, what are the facts in this matter? The ease in question is that of the Continental Tyre and Rubber Company, and I will state briefly to your Lordships the points. The case was raised by an action brought by Messrs. Daimler and T. Tilling, Limited, and was decided by the Court of Appeal in January of this year. I cannot understand why the Government have allowed the decision in this case, which was given nearly a year ago, to remain unaltered and undealt with, with all, as I shall show, its obvious unfairness and complete contradiction to common sense. In January of this year by a majority of the Court of Appeal it was decided that a company was independent of its shareholders, that by incorporation under the Companies Acts a sort of artificial legal entity was created which became a legal person, and that this legal person existed quite apart from the corporation itself. Whether that was good or bad law it is not for me to say, but it was distinctly opposed to common sense. If ever, to use a colloquialism of Charles Dickens, the law was "a ass," it was here, because how can any corporation exist without corporators?

This company, which by the decision to which I have referred was confirmed in its trading in this country, was a subsidiary company of a company which was formed in 1905 to trade in motor-car tyres made in Germany by a company incorporated under German law. This German company—and this is the instructive part—formed a number of subsidiary companies throughout the world for the sale of these tyres. Here you have evidence of the widespread purpose and penetration of German finance and German commerce. This was one of these subsidiary companies, and was formed to sell these tyres in the United Kingdom. When the case came before the Courts the capital of this company was £25,000 in shares of £1 each. Of this capital, £24,998 was held by Germans and a German company in Hanover; the remaining two shares, representing two sovereigns, were held by the managing director, Paul Brodtman, and the secretary, Frederick Wolter, both of whom have disappeared from this country since the outbreak of the war. This Frederick Wolter filed an affidavit to the effect that the company was registered at Somerset House in 1908 as an English company, and that he had taken out naturalisation papers as a British subject in 1910. Could you have a clearer proof than this that the whole of our naturalisation laws require to be strengthened and stiffened? The directors of this company are subjects of the German Empire, and all of them are resident in Germany. It is preposterous that such a company, because two of its shareholders representing a total amount of £2 can get naturalised over here and have the company incorporated under the Companies Acts, should be treated as a British company and be allowed to carry on trade in this country. I should like to say, in passing, that the effect of this decision is a very important one, because under Section 1 of the Merchant Shipping Act, 1894, ships owned by a shipping company incorporated in this country are declared to be British ships; so that you can have alien enemies owning and sailing British ships under the British flag.

May I be allowed to refer to another case, that of Henry Merton and Company? Sir Samuel Evans made from the Bench a most serious charge against this company, but since then we have been told by the Solicitor-General, then Sir Frederick Smith, that there is no intention to prosecute. Why not? Why should a firm substantially German escape prosecution when it is proved, as this firm was, to be working for the enemy in so important a commodity as spelter? The fact is that under the procedure allowed by the Commercial Department of the Foreign Office German merchants are counting upon the prospective profits of their sales after the war, and, if I may say so, this dealing in "futures"—for I cannot describe it in any other way—makes for them the security upon which they can finance their own Government, which is now fighting this country.

I come now to my final Question, No. 5. I ask it because I confess that, reading the Government replies in another place in regard to this matter, I am completely at a loss to understand what the powers of the Navy are. Lord Robert Cecil, speaking on behalf of the Foreign Office, is quite unable to tell us that the Government have power to confiscate German goods taken from neutral ships on the high seas; and unless they have this power and it is enforced the Navy clearly is not allowed to do all in its power to stop German trade. I heard in this House a statement—I think it was made by my noble friend Lord Islington—to the effect that eighty-three German vessels are detained in this country; but Lord Robert Cecil informed the House of Commons that, by Article II of The Hague Convention No. 6, "claims by the owners of these ships have been noted for consideration after the war." Again I ask, Why? I have looked at this Article of the Hague Convention, and I find that its provisions apply "only if all the belligerents are parties to the Convention." Germany and Russia are parties only to portions of it; Montenegro, Serbia, and Turkey are not parties to it at all; and to quote the words of the President of the Admiralty Prize Court on November 9, 1914, there has been no accession on the part of any of them.

What I want to know is, Why this inexplicable tenderness to Germany? It is quite incomprehensible. It produces the most extraordinary confusion, distrust, and suspicion in the public mind. I have been trying to turn over in my mind what the sort of arguments are which may be used by some of the pundits in the Commercial Department of the Foreign Office. Whether it is true or not I do not know, but it is rumoured that there are influences there who hold the view that we must look to the future when we might be neutrals. That argument, that reasoning, seems to me to be preposterous. Our Navy and not our precedents will protect our interests now and in the future. If the Declaration of London is not in force, why in Heaven's name cannot we be content with the sea law of our ancestors which gave us victory? But if any part of the Declaration of London is in force, how can we possibly expect any International Prize Court which is set up after the war and which is to be composed of neutrals, all of whom; mind you, will be plaintiffs in the suit—how can we expect to receive from such an International Prize Court any equity, justice, or satisfaction? I confess I am appalled at the liability which will be hanging over the finances of this country if we enter upon, or give ground for thinking that we have entered upon, any arrangement of that kind.

I have seen in the newspapers—it may be only an idle ramour, and I have not given notice to the Government of my intention to raise this point because earnestly trust that the assertion is so egregious and extraordinary that they will be able to answer it at once categorically—I have seen a statement to the effect that some Danes had been in England and had negotiated a treaty of commerce with the Foreign Office by which commodities might be re-exported from Denmark to neutral or belligerent countries. That statement has appeared in print, and is believed by a large number of persons. If it is true I can only say that it is a monstrous piece of treachery on the part of the Foreign Office, and an absolute contravention of the pledge which the Prime Minister made to the country in March, when he promised that we would try and prevent any commodities of any kind from reaching or leaving Germany.

These Questions of mine, it may be said, imply a want of confidence in the Foreign Office. Well, my Lords, I confess—and I do not think that my feeling is a very special or peculiar one, for it must be shared by a large number of persons in this country—that the Foreign Office by events, which are the most searching method of all criticism, has placed itself in a position which has caused its warmest defenders to become its apologists ad misericordiam. The Foreign Office never prevented war, it never prepared the nation for war, and, after the war broke out, it used every means to harass the Fleet to the benefit of our enemies. What justification can any noble Lord stand up in this House and make for a Department which, after war had been declared, forbade the Fleet to stop German reservists returning to the colours and only revoked that order after the storm of indignation which it aroused? To these Questions I hope we may have replies couched in language that breathes a little more the spirit of England of the past, which made our Fleet the greatest force and the greatest power in the world. Our soldiers are brave; but, after all, the greatest achievement of this country, the greatest contribution that she has made to her Allies and to the Allied cause, has been the action of our Fleet. We have not only to fight the Germans by land, but we have to fight them by sea; and we want—quoting the language of a great statesman although he was a German, Prince Bismarck—we want to get rid of all this rubbish of Declarations of London and Hague Conventions, to sweep away judicial niceties, and win the war by placing British interests and the interests of our Allies as first and supreme.

THE MARQUESS OF LANSDOWNE

My Lords, I will endeavour to answer the series of Questions which the noble Earl has put upon the Paper, and, like him, I shall address your Lordships as a layman, with a feeling of confidence that any omissions which I may make with regard to the more technical parts of the case may be made good by some of the noble and learned Lords whom I see sitting on the Benches around me. In his first Question the noble Earl asks whether the adoption of the Declaration of London by Order in Council involves the creation of an International Tribunal. The adoption of the Declaration of London by Order in Council has no such effect. The Declaration of London was, it is quite true, intended to provide a code for the guidance of an International Prize Court, and, indeed, the preamble of the Declaration contains a statement to that effect. But the adoption of the Declaration of London by no means involves the creation of an International Tribunal, nor does it bring us any nearer to the creation of such a Tribunal. I think the train of thought which ran through the noble Earl's observations was something of this kind. He says, "The Declaration of London was, ex concessis, intended to be a guide to an International Tribunal, an International Prize Court; you have adopted the Declaration of Londor under your Order in Council; therefore you have committed yourselves to an International Prize Court." Nothing, I think, could be further from the truth. But I am bound to say that I can understand that there should be some confusion of thought in regard to this matter, because no doubt in the minds of most there is a very close association between the idea of an international code of law and an International Court to administer that code. But let me remind the noble Earl that the Declaration of London is not an international code of law of any kind; it has no international validity; and I have no hesitation in saying that I believe that when the present Home Secretary, then Attorney-General, made the announcement quoted by the noble Earl to the effect that the Declaration of London was not binding on any nation, he said what was strictly and accurately the fact.

May I for a moment remind your Lordships of the sequence of events in which the Declaration of London originated? The noble Earl will remember that in 1907 this country took part in the second Peace Conference at The Hague. One of the questions then discussed was that of creating an International Prize Court. There was a considerable body of opinion in favour of the creation of such a Court. A good deal of dissatisfaction had been caused by the manner in which certain cases in which this country was interested had been handled by the Prize Courts of other countries, notably during the Russo-Japanese War. Therefore I believe opinion was upon the whole favourable to the idea. Accordingly we became parties to the Convention for creating an International Tribunal, which it was explained was to be guided by the principles of international law. Having got so far, it occurred to people that nobody was exactly in agreement as to what the principles of international law really were; and accordingly a Conference was convened and sat here in London in the year 1908–9 for the purpose of endeavouring to arrive at an agreement as to acceptable principles of international law. The Declaration of London was the outcome of that Conference. Its proceedings were no doubt a good deal criticised at the time and afterwards by, for example, some of our Chambers of Commerce and Chambers of Shipping, and I think I am right in saving by some of our Dominions overseas. But, at any rate, having provided what appeared to be the materials for an international code, it seemed to the then Government that the next step to take was to bring into existence a Court to administer that code, and it was thus that the Naval Prize Bill of 1911, to which the noble Earl referred, came into existence. I need hardly remind your Lordships of the fate of that Bill. It was discussed at considerable length in this House and eventually rejected by a large majority. But I feel bound to say that in my belief the Bill was rejected, not because a majority of this House was opposed either to the idea of an International Prize Court or to the idea of an international code of law for the guidance of that Prize Court, but because, in our opinion, as in the opinion of a great many people outside this House, exception might be taken both to the composition of the Court which it was sought to set up under the Bill and to the code which that Court was to be invited to administer. At any rate, the Naval Prize Bill was rejected, and with it, of course, fell the Declaration of London. The Declaration of London was not ratified, and, as I said a moment ago, it has no validity of any kind.

Then we come to what I suppose I may call the revival of the Declaration of London at the beginning of this war. At the outset of the war it became quite evident that something would have to be done in regard to the administration of our Prize Courts. We were fighting in co-operation with Allies, and it was eminently desirable that there should be some uniformity in our practice in the conduct of our naval operations, and it was also not less desirable that the Prize Courts of the Allies should have some principles laid down for their guidance. The Declaration of London was ready to hand. It was, as far as I am aware, the only available summary of views held by a great number of people in regard to these questions, and it was accordingly decided to adopt it. But we did not adopt it completely. We adopted it with some considerable and very important modifications. The noble Earl took the point that the Declaration of London was technically dead, and that there was something irregular in attempting to resuscitate it in this manner. I fail to see the point of the argument. The Declaration of London was dead as an instrument of international obligation, but it was there, and it was available for the use which we made of it.

THE EARL OF PORTSMOUTH

I am sorry to interrupt the noble Marquess, for, if my memory serves me right, he was one of the principal executioners of the Naval Prize Court Bill. But surely, when the House of Lords had thrown out that Bill, it was a strong order for the Foreign Office to go out of its way and revive by Royal Proclamation part of it which was considered objectionable.

THE MARQUESS OF LANSDOWNE

I fail to see that it was a strong order. The document was there, and available for such use as we thought proper to make of it. I am sure the noble Earl carries in his mind some of the points to which the opponents of the Naval Prize Bill in this House most strongly objected. He will find, in the Declaration as adopted, that there is an entirely new list of contraband; there is a change of the utmost importance in the 33rd Article dealing with the question of enemy destination; there is an important alteration in the 35th Article, which deals with conditional contraband of war; and at a later date it was arranged that Article 57 of the Declaration of London, under which it was ruled that the flag decided the nationality of the vessel, should be struck out. So that the Declaration of London which we adopted for our own convenience at the beginning of the war was a very different Declaration of London from the one with which we had to deal in 1911. But although it is true that with these modifications the Declaration of London was adopted, it cannot be too clearly understood that we adopted it only partially and only for the guidance of our own Courts.

I pass to the noble Earl's second Question. He asks whether His Majesty's Government have given any pledge, undertaking, or reason to hope to any neutral that there will be a reference of questions or claims connected with our exercise of sea power to an International Tribunal after the war. I think it is clear that what the noble Earl has in mind is the Foreign Office Note which was addressed to the American Government on July 31 last.

THE EARL OF PORTSMOUTH

And also the statement by Sir Edward Grey about the freedom of the seas.

THE MARQUESS OF LANSDOWNE

I do not carry in my mind that statement.

THE EARL OF PORTSMOUTH

Sir Edward Grey stated that there would be a question possibly of this matter of the freedom of the seas to be considered after the war.

THE MARQUESS OF LANSDOWNE

I imagine that after the war a great many questions will have to be discussed; and possibly that question may have to be considered like others. But I do not call to mind any statement on the part of the Foreign Secretary to the effect that he was prepared to commit His Majesty's Government with regard to the question of the freedom of the seas or any kindred question. What is much more to the point, if I may say so, is the statement made in the Foreign Office letter of July 31. I would like to recall to the attention of the House what was then stated, and stated officially, on behalf of His Majesty's Government. There were at that moment several cases in controversy between ourselves and the Government of the United States, cases in which our interpretation of international law was challenged by that Government. Sir Edward Grey expressed the hope that the measures which we had found ourselves compelled to adopt would be found consistent with the principles of international law; but he pointed out that at that time the legality of those measures had not yet been decided by the Prize Courts, and he took the opportunity of reminding the United States Government that— it is open to any United States citizen whose claim is before the Prize Court to contend that any Order in Council which may affect his claim is inconsistent with the principles of international law, and is, therefore, not binding upon the Court. Sir Edward Grey proceeded— If the Prize Court declines to accept his contentions, and if, after such a decision has been upheld on appeal by the Judicial Committee of His Majesty's Privy Council, the Government of the United States of America consider that there is serious ground for holding that the decision is incorrect and infringes the rights of their citizens, it is open to them to claim that it should be subjected to review by an International Tribunal. And in the following paragraph Sir Edward Grey pointed out that this principle of the settlement of such disputes by arbitration had on more than one occasion been conceded both by ourselves and by the Government of the United States, so that both Governments were in effect committed to it. Then towards the end of the despatch Sir Edward Grey used these words— If it is held in the Prize Court and in the Judicial Committee of the Privy Council, on appeal, that the orders and instructions issued by His Majesty's Government in matters relating to Prize are in harmony with the principles of international law, and should the Government of the United States unfortunately feel compelled to maintain a contrary view, His Majesty's Government will be prepared to concert with the United States Government in order to decide upon the best way of applying the above principle to the situation which will then have arisen. I ask the noble Earl and the House to note that in those words Sir Edward Grey does not commit this Government to any particular form of procedure for dealing with such disputes and still less does he commit himself to the establishment of an International Prize Court upon the lines of the Court contemplated by the Naval Prize Bill of 1911. What we are committed to by that statement is really no more than this, that in cases of obstinate difference between the two countries we shall be prepared to resort to arbitration as a proper way of liquidating the dispute, and I venture to say that this is a doctrine which, I was going to say, no sane citizen in this country would care to repudiate. It is a principle which you can defend, first, upon the ground that it is a strong order to ask any neutral to accept the principle that the last word is to be said by the Prize Court of a belligerent Power in a matter, remember, which may have arisen outside the jurisdiction and sovereignty of the belligerent Power. I go further than that. I say that in all such cases where there has been a failure to obtain a satisfactory solution through the law Courts, and where diplomacy has been unable to arrive at an adjustment, it is right and reasonable that the principle of arbitration should be contemplated. And if that view requires any confirmation, I should like to remind the House that only last year we signed a Treaty with the United States Government under which the high contracting parties agreed that all disputes between them of every nature whatsoever, other than disputes the settlement of which is provided for and achieved under existing agreements, shall, whee diplomatic methods of adjustment havn failed, be referred for investigation and report to a permanent International Commission. Having agreed to that very unreserved submission of disputes of all kinds to examination by a Commission, it does seem to me that it would be illogical, to say the least of it, to decline to look to arbitration if there is a failure to arrive at an adjustment in regard to disputes arising out of the jurisdiction of our Prize Courts.

The third Question is one which I can answer in very few words. I am asked whether Lord Reading formally or informally held out any hope of the kind indicated in the previous Question, to the Government of a neutral Power. The noble and learned Lord—I speak in his presence—visited the United States in connection with financial matters of the highest national importance, and his instructions and authority were limited to the matter of which he was specially charged. If I am asked by the noble Earl whether the noble and learned Lord in private conversation discussed these questions with the people that he met, I am unable to say, and if I did know I should not think it my duty to inform the House.

In Question No. 4 the noble Earl asks whether His Majesty's Government intend to take any action to reverse the judgment in the Court of Appeal by which companies substantially of enemy character are by mere registration given the status and rights of British companies. This Question, as the noble Earl made clear to the House, has special reference to the recent judgment of the Court of Appeal in the case of the Continental Tyre and Rubber Company (of Great Britain), Limited, versus the Daimler Company, Limited, to the effect that a company incorporated here of which all the shareholders and directors are enemies can during the war enforce payment of a debt due to the company in the Courts here. This question has been a good deal discussed in the public Press. What I have to say in regard to it is that this matter is engaging the attention of His Majesty's Government, and that they are particularly considering what steps might be necessary at the end of the war to prevent companies the majority of whose shares are under foreign control from obtaining, by registration, the status and privileges of an English company. That is with regard to what might happen further on. As to what is happening at this moment while the war is in progress, the House may recollect that in one at any rate of the war emergency measures which have been lately passed questions of this kind are effectually dealt with. For example, the Trading with the Enemy Acts confer very wide powers on the Board of Trade for dealing with any company in which there is a substantial enemy interest. Section 2 (2) of the Trading with the Enemy Act, 1914, enables the Board of Trade to appoint a person to inspect the books and documents of such a company. Section 12 provides that where, on the report of an inspector, it appears that it is expedient that the business should be subject to frequent inspection or constant supervision, the Board may appoint a supervisor with such powers as they may determine. In another section of the same Act and in a section of an Amending Act the Board of Trade are enabled to apply to the Court for the appointment of a controller of such a company if an offence has been or is likely to be committed and if it is expedient in the public interest that a controller should be appointed owing to circumstances or considerations arising out of the war. It may, perhaps, interest the House to know that no fewer than 492 inspectors have been appointed by the Board of Trade under the first of the sections which I have quoted. In 232 cases supervisors have been appointed by the Board, and in eight cases controllers have been appointed by the Court. So that I think the noble Earl may rest assured that, so far as what is likely to happen during the course of the war is concerned, these matters are not being neglected.

I now come to the last Question, in which the noble Earl asks whether His Majesty's Government have by the Order in Council of March 11 or by any other Ordinance deprived this country of its ancient right to confiscate enemy goods wherever found and of whatever character. I am not quite clear as to the ancient right to which the noble Earl refers. I think I am able to say with some confidence that no such right has been asserted by a British Government within the noble Earl's recollection or my own, and certainly no such right is renounced by the Order in Council of March 11. I gathered from the noble Earl's statement what it was that he had in his mind. He is thinking of the "good old days" before the Declaration of Paris of 1856. Now let me say one word about the Declaration of Paris. Up to the time of the Crimean War, as the noble Earl is aware, we claimed the right of confiscating enemy goods in neutral vessels; but our construction of international law did not by any means find universal acceptance; forexample, at the time of the Crimean War, when we were engaged in a campaign with the French as our Allies, there was a profound difference between the French view of international law and our own, and it was in order to bring about an approximation of the two views that a Declaration—not the Declaration of Paris, but an earlier Declaration of the year 1854—was agreed to by us. But at the end of the Crimean War the view which had been accepted by France and ourselves was agreed to by, I will not say all the other Powers, but all the other maritime Powers with the exception of the United States, to which I shall come in a moment. The accepted principles were embodied in the second and third Articles of the Declaration of Paris, under which it is laid down that the neutral flag covers enemy goods except in the case of contraband of war, and that neutral goods, excepting contraband of war, are not liable to seizure under the enemy flag.

Those principles were accepted by all the maritime Powers except the United States, Spain, Mexico, and Venezuela. But although the United States Government were not parties to the Declaration they have accepted it, in principle, and during the Spanish-American War of 1898 they acted upon that Declaration. Well, that Declaration has held the field for sixty years; and although I am quite prepared to concede that the altered conditions of naval warfare may render it from time to time necessary for us to re-examine and reconsider our international obligations, and though I am ready to concede that the conduct of our enemies might have the effect of forcing us to reopen some of these questions, I must say, on the other hand, that what I understand to be the noble Earl's suggestion—namely, that we should light-heartedly, without, I suppose, even consulting our Allies and those who were parties to the Declaration of Paris, go back to what he called the "good old" Naval Prize Law that prevailed before 1856—does seem to me, to put it mildly, a very violent proposal indeed, and one to which I should be very slow to give encouragement.

I should like to add one other observation as to this part of the case. It was quite clear from the tone of the noble Earl's remarks that he is under the impression that when, under the Declaration of Paris, we parted with certain rights which we had up to that time insisted upon, we very grievously weakened the position of this country, and that we have, if possible, increased that weakening by the Order in Council to which he refers in his Question. I venture to say that the effect of the Order in Council is not by any means to weaken the hands of this country, but, on the contrary, in several very important points greatly to strengthen our hands. Before 1856 we claimed the right of confiscating enemy goods when we found them on board neutral vessels, even if those goods, remember, were not contraband of war. Now what is it that we can do under the Order in Council which apparently causes the noble Earl so many misgivings? Under that Order in Council we can not only seize and stop enemy property on neutral vessels, but we can seize and stop goods found in neutral vessels proceeding from a neutral port to a neutral port if we are able to show that those goods were of enemy origin or of enemy destination. How in the face of that the noble Earl is able to suggest to the House that the Order in Council in any way weakens the position of this country baffles my comprehension altogether.

I must say that I rather resent the passage in the noble Earl's speech in which he made a somewhat ferocious onslaught upon what he called the "pundits" of the Foreign Office, whom he represented as sitting with folded hands and neglecting our commercial interests. I would venture to put it to the noble Earl that the test of these measures is their success, and if the noble Earl will pay a little attention to the reports which reach us from all sides as to the economic pressure to which Germany is at this moment subjected, as to the manner in which trade that was formerly in German hands is now passing into the hands of other Powers, as to the statistics of German trade generally, he will find that the operations of the Foreign Office "pundits" have been by no means so unsuccessful as he is good enough to suppose.

The noble Earl is thinking all the time of the interests of this country as a belligerent, and we must all think of the interests of this country as a belligerent. As such we are fighting for our lives, and we must neglect no precautions. But there are other people to be thought of, and when the noble Earl and his friends airily treat these questions as if there were no such people as neutrals I venture to think they make a very great mistake. It is a part of the Nemesis which follows in the steps of a cruel struggle such as that in which we are now engaged that it must bring great suffering, great hardship, ruin perhaps, to many people who are entirely harmless and who have no connection whatever with the quarrel in which the belligerents are engaged. I venture to say that in common justice and in order that our own diplomatic path may not be too rugged, we should spare no efforts to minimise that hardship and that inconvenience, and to reduce the friction and the suffering by any means which are available for that purpose.

THE EARL OF PORTSMOUTH

May I ask the noble Marquess whether there have been any arrangements with the Danes to whom I referred?

THE MARQUESS OF LANSDOWNE

I am afraid I cannot answer that question without notice.

THE EARL OF HALSBURY

My Lords, I think I may congratulate my noble friend behind me (Lord Portsmouth) on having obtained an affirmation in this House—what, indeed, Sir John Simon's reputation as a lawyer hardly required—of that right hon gentleman's statement that the Declaration of London is dead and is binding on no one. That is a very satisfactory proposition to have had established. I do not want to say any more about, it because it is dead; I will not quote the adage on the subject. But there are two observations I wish to make upon it. One is that the noble Marquess himself voted in the same Lobby with me, and I remember some very cogent observations of his in which he pointed out that the tribunal which was attempted to be set up but was not set up was a tribunal which was to disregard the decisions of two hundred years and leave an exposition of what the law was to the clerks of the gentlemen who had met in conference together. That, I think, would have been sufficient to condemn it. Further, the spirit in which it was conceived was a spirit in which every maritime Power was to have its authority and influence diminished, and every land Power was to have its authority and influence increased. That, I should have thought, in the case of England would have been a sufficient reason to condemn it. But, as I have said, the thing is dead now, and I leave the topic.

With reference to the question of law, I will only give one hint. An Order in Council has not the authority of an Act of Parliament. Wherever His Majesty's prerogative exists and he deals with the matter, the Order issued is no doubt the law; but wherever it steps beyond that, it requires the assent of Parliament. If I understood the noble Marquess rightly, the Declaration of London was only mentioned because it was a convenient form in which to refer to the instructions that were to be given to the soldiers and sailors under His Majesty's orders. I think it would have been more convenient to have re-copied it, and to have issued the Order in Council by itself without any reference to another document, which was only in this case referred to at all as being a convenient copy of the words that were intended to be used.

As to the serious and important point raised in Question No. 4, I think it is due to your Lordships that I should explain that a Notice of my intention to bring in a Bill to deal with this subject of enemy alien companies trading in the United Kingdom as British companies has been for some months on the Order Paper of the House. But I have endeavoured in every way that I could to assist the Government for the time being, and I believed that I assisted them most by holding my tongue; and I have rigidly adhered to the view I took that it was by no means a patriotic thing to weary the Government upon comparatively trivial matters at a time when they were engaged on this most serious and tremendous war. I accordingly communicated my views to the then Attorney-General and he informed me that the Government were about to deal with the subject, so I left my Bill as it was. But there has apparently been a misunderstanding. I am quite sure that no intention to avoid responsibility can be attributed to my learned friend who was then Attorney-General. At all events, I have now brought in my Bill, and it has been read a first time to-night. Therefore any discussion arising upon the nature of these companies and what ought to be done with them would be inappropriate at the present time. My Bill will come on for Second Reading in due course, and on that occasion I shall have an opportunity of saying something upon what has been done and what I think yet remains to do.

VISCOUNT BRYCE

My Lords, one or two points were raised by the noble Earl, Lord Portsmouth, upon which perhaps a few further words may be said. In the first place, he seemed to me to have forgotten altogether that we have bound ourselves by a variety of Treaties to refer to arbitration questions of such a nature as those which arise from the exercise of our rights at sea. The noble Marquess referred to a Treaty signed last year with the United States of America by which it was arranged that questions arising between the two countries should be referred to a Commission for investigation and report. But the case goes even further than that, because there was a previous Treaty which I think was not superseded by the Treaty to which the noble Marquess referred, by which both we and the United States engaged to refer to arbitration any question of a legal nature that might arise. That Treaty—which was renewed for another period, having first been concluded five years before—would clearly cover the kind of case which was in the mind of my noble friend Lord Portsmouth; and therefore it would be altogether superfluous and otiose to inquire whether any recent assurance has been given by His Majesty's Government referring questions of that kind to arbitration, seeing that with the universal approval of everybody in this country we have agreed to arbitrate such questions as would arise in these cases.

The noble Earl seemed to me rather to ignore the fact that in all the operations we are conducting at sea neutrals as well as belligerents are involved. Everybody will agree that we are entitled, if ever any nation was, to press to the utmost against belligerent enemies all the rights which international law allows us. About that I suppose there will be no doubt. But when we come to neutrals a totally different series of considerations arises. The noble Marquess dwelt with great truth and force upon the hardships which are inevitably inflicted upon innocent people by blockades and all the operations which are carried on by navies in war time. These things are inevitable, and so long as they happen in cases which are clearly within the right of the Power that commands the sea we are fully entitled to exert our rights.

But there is another set of considerations which I think deserves attention. We talk as if neutrals were people who stood altogether outside and without any relation to the struggle which is going on between ourselves and the enemy countries. But there are different kinds of neutrals just as there are different kinds of friends. There is such a thing as an unfriendly neutral as well as an open enemy. A belligerent has some favours to expect from neutrals, or, at any rate, it has strong interests in preventing neutrals from taking an action which might very well cripple or reduce its own belligerent activities. As we know perfectly well, there are things within the power of a neutral country which it will do for a belligerent Power if it is favourably disposed towards it, and which it may not do, or which it may interdict its own subjects from doing, if it has reason to think that it has received offence from the belligerent Power, and that the belligerent Power is treading upon the toes of neutrals in a, way that it ought not to do. These are political considerations; and just as military operations have to be influenced by political considerations, so also has the exercise of belligerent rights where neutrals are concerned. We might easily lose a great deal more than we could possibly gain by pressing even our admitted rights to the furthest point which would involve the greatest possible injury to neutral countries. It is, therefore, bad policy for us to try and press our rights to the extreme if there is reason to fear that we may create an unfavourable atmosphere in a neutral country and have to suffer in those various ways in which a neutral country can affect the fortunes of belligerents.

The noble Earl proposed to go still further. He seemed to wish, not only that we should press our admitted belligerent rights as far as they can be made to go, but that we should disregard international law altogether. It has been said with some truth that this has been a very bad time for international law. A great deal of that fabric of international law under the security of which, as we supposed, the nations of the world were reposing, and to which they trusted to mitigate the horrors of war and give some shield of protection to innocent noncombatants, has been already shattered, and it has been said not only in this country but in many others that one of the great tasks which the nations of the world will have to undertake when the war comes to an end is to endeavour, as far as possible, to rebuild this shattered fabric and to create a more complete system of international law, guarded by stronger sanctions than those which have unfortunately proved so inadequate during the last eighteen months.

Would it not, therefore, be a most unfortunate thing if this country in particular were to go in any respect beyond the lines of what may be considered to be defined, settled international law, and were to plead her own will or even her own necessity as a justification of her actions? I do not think there is anything that we ought more to avoid than to cover or excuse departures from international law by alleging military necessity. The plea of necessity has led in the case of this war to the most atrocious crimes and the most flagrant neglect of the common duties of humanity, and I trust and believe we in this country will never resort to such an argument. If there is anything that has been an asset to this country in the war it is the fact that we come before the world as the champions of international rights and the defenders of international law, and it would be a deplorable thing if we were to depart from that position or weaken the stand we have taken, which has so much commended our cause to all fair-minded men in the neutral nations of the world. I earnestly hope that it will be remembered by those who are naturally impatient and naturally anxious that we should press our rights to the utmost that we must never abandon the position we have taken. It is that position to which we very largely owe the unprecedented unity of heart and mind amongst our people because they are aware that we are fighting in a cause which is not only our own cause but the cause of mankind; it is largely that sentiment which now makes the country entirely united and determined with one heart and mind to prosecute this war with the utmost vigour.

VISCOUNT PEEL

My Lords, as one of its opponents in another place I am heartily glad to hear the authoritative assurance of the noble Marquess that the Declaration of London is dead. But I think it is fair to say this in mitigation—shall I say—of the mistake of those who have been living under the idea that it is not dead, that it was solemnly adopted in an Order in Council. Ordinary persons—laymen, and so on—who read the statement that the Declaration of London had been so adopted quite fairly supposed that it had some validity. It appears, however, that it had no validity at all at any time; and we have now had a statement from the noble Marquess that it is dead.

The noble Marquess said that the Declaration of London does not involve the creation of an International Tribunal. Logically it does not, but historically there is no question but that it does. Those who have followed the history of these doings for the last eight years will be aware that the Declaration of London was only a sequence from The Hague Convention. The Second Peace Conference of 1907 decided to set up an International Court, and it was the desire to set up a code of law which should be administered by this International Court. That was the whole history of the Declaration of London. I think the minds of men were somewhat disturbed about the Declaration of London by this further point, that Article 65 of it said that the provisions of the Declaration must be treated as a whole, and cannot be separated—un ensemble indivisible are the words used. When they saw the considerable change that had been made, as the noble Marquess said, in the Declaration of London they were more in doubt as to the exact position of this famous document. I am one of those who regret that it was adopted at all in August. I should like to ask this question, Are not the Prize Courts themselves the proper bodies to decide what the law is according to the precedents on these questions? Why did the Foreign Office take upon itself to issue this statement? And if issued at all it seems to me rather unfortunate that it should be couched in precisely the same terms as a Declaration which was not ratified and which we are now told had no validity. It has this further weakness, that in the minds of many it is undoubtedly associated with its origin; and it did originate at a time when we were led to believe that international arbitration and Hague Conventions might be binding on nations. Unfortunately that has been discovered not to be the case.

If you look at the instructions given by the Foreign Office to our representatives who went to The Hague Conference to discuss the Declaration of London, you will see that the position of this country was looked upon almost entirely from the position of a neutral. Indeed, the instructions went so far as to suggest that it was a pity that contraband could not be done away with altogether. Now, of course, changes have been made in the Declaration of London, but they are being made from the point of view of the belligerent rather than the neutral. Hence they have brought even more confusion to the Declaration of London than there was before. For that reason I think it was a pity, as I say, that the Declaration of London was adopted at all even with the particular changes that were introduced into it, and that the matter was not left to the Courts without any further difficulty.

I think everybody will agree with the noble Viscount opposite (Lord Bryce) that in certain circumstances it may not be wise to press one's rights of international law too far, but I should like to call attention to the particular Order in Council of March 11 last in connection with the observations made by the noble Marquess opposite. The noble Marquess rather reproved the noble Earl (Lord Portsmouth) because he referred to the ancient rights which, as he said, existed before the Declaration of Paris of 1856. I do not think the noble Marquess can have it both ways. He cannot both repudiate and pray in aid the Declaration of Paris, because if there is one thing more definite, than another in the Declaration of Paris it is that the principal clauses all hang together; if one goes the others go, and it is notorious that the Article about privateering has already gone. The noble Marquess is perfectly right in stating that under this Order of March 11, 1915, we are exercising more rights than we considered we ought to exercise, anyhow since the Declaration of Paris; and we are certainly doing under this Order certain things not allowed by the Declaration of Paris. So that in two ways the Declaration of Paris may be said no longer to exist. If there is one thing clearer than another it is that under the Declaration of Paris we are not allowed to interfere with neutral ships going from one neutral port to another carrying neutral goods, whereas that right is interfered with under the Order of March 11. Therefore it seems to me that the noble Marquess cannot, after those facts are represented, pray in aid the Declaration of Paris and rebuke the noble Earl because he wants to go back to rights anterior to that Declaration.

It is rather remarkable the way in which enemy goods are dealt with under this Order of March 11, 1915. The Order provides that in various cases where these goods are to be discharged—not being contraband of war, which is confiscated—the goods "shall, if not requisitioned for the use of His Majesty, be restored by Order of the Court, upon such terms as the Court may in the circumstances deem to be just, to the person entitled thereto." A considerable number of cases of neutral vessels have been brought into Court, and the neutral goods in those vessels have been either given back or sold or dealt with in particular ways; while enemy goods are not confiscated, but either handed back to the people who claim them—who, I presume, are enemy persons—or in certain circumstances sold, and the destination of the proceeds of their sale is left undecided until the end of the war. Therefore I ask this question, which I think is wholly relevant to the point which the noble Earl raised. If you have so far departed from the Declaration of Paris as to claim to do, no doubt rightly, by way of reprisal, what you do under this Order of March 11, why do you not confiscate and deal with these goods as enemy goods? Why should this particular tenderness—to use the phrase of the noble Earl—be shown to enemy goods? The noble Viscount opposite (Lord Bryce) has said that we ought not to press our rights as against neutrals to the utmost limits, but surely there is no reason why we should not press our rights against enemies as forcibly and fully as we can. I think a great many people would like to know why in a case like this, when you have enemy goods which you might confiscate, you do not confiscate them. They also want to know why you do not try to do as much damage to the enemies you are fighting as you possibly can.

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF CREWE)

My Lords, my noble friend behind me dealt so fully with the subject-matter of the noble Earl's Questions that it is not necessary for me to attempt to develop the debate further in that direction, and I will merely deal with one or two points raised by the noble Viscount (Lord Peel). The noble and learned Earl on the Front Bench opposite declined to discuss the Declaration of London further on the ground that it was dead and buried and ought to be subject to the general rule which forbids us to speak evil of the departed. But the noble Viscount opposite (Lord Peel) was disposed to blame the Government for having, in the Order in Council of March 11, used the phrase that the Declaration of London was adopted with certain modifications. He thought, as I gathered, that if it was necessary, as has been found in the past, to issue a code of rules which the Prize Courts were invited to accept as embodying the principles on which they should act, those rules ought to have been issued de novo, and not as involving the adoption of any part of the Declaration of London. I cannot help thinking, assuming that the substance of the rules as issued was approved and agreed, that if the Declaration of London bad not been specifically mentioned but merely the rules issued. as we see them many people, of whom the noble Viscount would himself have been one, would have said, "What a disgraceful evasion to adopt a lane part of the Declaration of London verbatim and not to say a word about the source from which your rules come." The Declaration of London, as we all know, was not proceeded with because the Naval Prize Court Bill did not become law, and we should have been told that we were trying to persuade people that we were doing something altogether different from what was intended to be done in that Bill.

Then the noble Viscount said something about goods with an enemy destination, and appeared to think it a mistake in those cases where they were presumed to be either now or likely to become the property of enemies that they should not be confiscated. In all these matters surely the main and paramount object is not that the goods should be taken and that to the extent of their value we should thereby be reimbursed, but that they should be prevented from reaching the enemy. That is the main consideration above all others. And when the noble Viscount spoke of it as a matter almost of common sense that enemy goods should be confiscated in all circumstances and wherever seized, he did not explain to us why there should be that difference between the sea and land which ought to allow you in his view to confiscate all enemy goods of any kind whenever found on the water but which goods it had been the custom and practice of all civilised nations for hundreds of years not to confiscate on land. That opens up a very large area of discussion on which I do not propose to enter at this moment.

VISCOUNT PEEL

I hope the noble Marquess does not think that I suggested that enemy goods should be confiscated anywhere. I was dealing with cases where enemy goods had actually been brought into this country; in some cases they have been handed back to the enemy owners and in other cases sold and the proceeds paid into Court. My only argument was that when, under this Order, they were brought into Court they might then be confiscated if they were enemy goods.

THE MARQUESS OF CREWE

I am not quite sure that I follow the distinction that the noble Viscount draws, because the goods are brought into port here simply and solely for the purpose of preventing their reaching the enemy. However, I will not pursue the subject further.

On the general question of contraband and the application to it of the Declaration of London as drawn, there are one or two considerations which I think it desirable to mention. It is clear. I think, front what has happened since that the attempt which was made at the time of the drafting of the Declaration of London to draw up an international list of articles of absolute contraband and conditional contraband and of other articles which under no circumstances must be contraband was, is, and always will be a hopeless task. You have only to look at the terms of those lists to see how they are affected by a change in circumstances. In the list of articles which it was supposed in no circumstances could be declared contraband the first three, if I remember rightly, are—(1) raw cotton, wool, etc., and other raw materials of the textile industries, and yarns of the same; (2) oil seeds and copra; and (3) rubber, resins, etc. Well, that is only some eight years ago. Yet now we know that those articles, almost above all others, are those which it is necessary for us to consider not merely as conditional but as absolute contraband. If you could conceive the existence of a fully informed and absolutely impartial International Court in perpetual session, then something might be said for the attempt to frame a list of that kind. But I think our experience shows that as science advances and war conditions change it is almost hopeless to pursue the attempt to frame a code which should be at once universal and lasting.

What, therefore, we have done in this case of contraband is to adapt the code to the absolute necessities of the existing situation while remaining, in this and in other matters, scrupulously careful to inflict as little injury as we can upon neutral Powers. We feel that we are entitled to ask neutral Powers to consider that it is impossible for us, simply in order to save their traders from loss, to admit to the territory of our enemies, whether directly or indirectly, goods the possession of which by the enemy must tend to prolong the war. We are obliged to exa[...] the applicability of past rules to present conditions. Rules which date from the days of the battleaxe and the bow-and-arrow are not and cannot be applicable to conditions of modern warfare. Our duty then is scrupulously, so far as we can, to avoid inflicting needless injury upon neutrals or upon their interests. On the other hand, it is equally our duty not to yield an inch where reason and experience show us that pedantic adherence to this or that ancient, rule can only tell to the advantage of the enemy. We are also entitled to ask neutrals to consider this—that a straining, if you will so have it, of an international code which may involve practical inconvenience and pecuniary loss to individuals who are citizens of neutral States is not only not the same thing as, but ought not to be compared with, the infractions of international codes which are contrary to humanity and involve personal suffering and cruelty to individuals. I think we are entitled to ask neutral countries to draw a careful distinction in that sense, although of course we do not in any way expect them to refrain from protesting where they consider they suffer. In such cases we expect that neutral States will protest and argue, and in every case we shall do our best, to meet their arguments by others which we believe to be sound.