Sitting of 4 July 1854

VALUATION OF LANDS (SCOTLAND) BILL.
Order for Committee read.
House in Committee.
Clauses 1 to 3 agreed to.
Clause 4 (Notice to be given to persons whose property is valued).
MR. ALEXANDER HASTIEsaid, he wished to move an Amendment, the effect

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of which was, that the time for giving notice to persons included in the valuation should be extended from the 15th to the 31st of August.
Amendment proposed, in page 3, line 4, to leave out the word "fifteenth," in order to insert the words "thirty-first."
THE LORD ADVOCATEsaid, he could not assent to the proposed change.
Question put, "That the word 'fifteenth' stand part of the Clause."
The Committee divided:—Ayes 39; Noes 15: Majority 24.
SIR HENRY DAVIEmoved an Amendment, having for its object that the appeal from the valuation assessors should be to the Commissioners of Supply, instead of the sheriff, or to the magistrates of the burgh, as the case might be.
THE LORD ADVOCATEsaid, he would not offer any opposition to the proposal.
Clause, as amended, agreed to.
Clause 5 (Yearly rent, or value, how to be estimated).
MR. DUNLOPsaid, he would now move the proviso of which he had given notice.
Amendment proposed, in page 4, line 12, to add at the end of the Clause, the words—
"Provided also, that when lands and heritages are subject to a feu duty or ground annual, the proprietor shall be entitled to relief from the superior or the party in right of the ground annual, and to deduction from the feu duty or ground annual payable by him, of such proportion of all assessments laid on according to the valuations made under this Act, which, in so far as effeirs to such feu duty or ground annual, such proprietor is not by contract or obligation in his titles, or by law, liable in payment of, and that without relief, as shall correspond to the amount of such feu duty or ground annual as compared with the amount of the valuation of such lands and heritages under this Act."
MR. COWANsaid, he would appeal to the Lord Advocate to assent to this proviso, which was in accordance with the demands of public opinion in Scotland.
THE LORD ADVOCATEsaid, he objected to a renewed discussion of this point, which had been decided by the House on a former occasion. This Bill would not affect the proprietors of land subject to a feu duty in one way or the other, because he intended to add to it a clause enacting that—
"Nothing contained in this Act shall exempt from or render liable to assessment any person or property not now exempt from or liable to assessment."
As far as feu duties were now legally liable to assessment, they would continue liable;
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but no new liability would be imposed upon them. His object had been to render this simply a Valuation Act, and not to interfere in any way with the assessments to which different classes of property were liable.
MR. ALEXANDER HASTIEsaid, that a great boon was always conferred on the public when property was brought within the sphere of taxation which had previously escaped. No property was more valuable than these feu duties, and none was more entitled to bear its due share of taxation. He should vote for the Amendment.
COLONEL BLAIRopposed the proviso, which he said he regarded as a violation of existing arrangements.
MR. DUNLOPsaid, the proviso would have the effect of preserving existing contracts, but the Bill of the right hon. and learned Lord Advocate would relieve parties, at present liable, from the taxes which they now paid, and would inflict taxes upon those who were neither liable by practice nor law to pay them.
Question put, "That those words be there added."
The Committee divided:—Ayes 23; Noes 52: Majority 29.
MR. E. ELLICEsaid, the Bill as it stood would positively exempt property from taxation which had hitherto been assessed to a very large amount.
THE LORD ADVOCATEsaid, the notion that the Bill would produce any such effect as that referred to by the hon. Gentleman arose entirely from a misconception. In order, however, to make the matter quite clear, he proposed to add a clause which would provide that nothing contained in the Act should give such an exemption.
Clause agreed to, as were also the clauses up to Clause 14.
Clause 15 (New Qualification for Commissioners of Supply).
MR. CRAUFURDsaid, he objected to the exclusion of burghs from the operation of the clause, and he would propose to insert after the word "county," the words "or within any burgh locally situate therein, or partly within such county, and partly within any such burgh as aforesaid."
THE LORD ADVOCATEsaid, he must oppose the insertion of those words.
Amendment negatived.
MR. CRAUFURDsaid, he would now move the omission of the proviso at the end of the clause.
Amendment proposed, in page 8, line 25, to leave out from the word "proprietors" to the word "provided," in line 30.
Question put, "That the words proposed to be left out stand part of the Clause."
The Committee divided:—Ayes 56; Noes 26: Majority 30.
Clause agreed to.
Clause 17.
MR. COWANsaid, that this clause directed the assessment of railways to be made on the basis of their cost. Now, every one knew that a great deal of money had been unnecessarily expended on railways, and he would therefore move that the assessment should be charged not upon the cost, but upon "the value for business purposes."
THE LORD ADVOCATEsaid, that railways would be assessed upon their actual value. The cost was only to be considered as a criterion of the proportions in which the assessment should be distributed amongst the various parishes through which the railway ran.
MR. COWANsaid, he thought it was needlessly complicating the matter to have two assessments, which it seemed would be requisite, according to the statement of the right hon. and learned Lord.
MR. DUNLOPsaid, he should support the clause. He did not think that the plan which it embraced was at all complicated.
Amendment withdrawn.
Clause agreed to, as were Clauses 18 to 22. Clause 23 was omitted. Clauses 24 to 28 agreed to.
Clause 29.
MR. DUNLOPsaid, he wished to add the following proviso—
"Provided always, that when the area of any parish church heretofore erected has been allocated among the heritors according to their respective valued rents as appearing upon the present valuation rolls, all assessments for the repair thereof shall be imposed according to such valued rent."
THE LORD ADVOCATEassented to the proviso.
Clause, as amended, agreed to.
Clause 30.
MR. LOCKHARTproposed the insertion of the following proviso—
"But provided always, that nothing herein contained entitle any person claiming the franchise as a proprietor to be enrolled, if his claim be objected, and he fail to produce a good and sufficient title in the registration court after due citation."
Clause, as amended, agreed to, as was also Clause 31.
Clause 32.
MR. COWANsaid, he proposed to add the following words—
"Provided always, that where more than one burgh contribute to send a Member or Members to Parliament, each such burgh shall, notwithstanding, be held to be distinct and separate burghs for the purposes of this Act, and the magistrates of each burgh respectively shall have and exercise all the powers herein conferred on magistrates of burghs."
This proviso was rendered necessary by the fact that the cities of Glasgow and Aberdeen each contained two boroughs.
Clause, as amended, agreed to.
Clauses from 33 to 36 inclusive were then agreed to, with verbal amendments.
SIR HENRY DAVIEthen moved the insertion, after Clause 12, of an additional clause to the following effect—
"Provided that at all proceedings under this Act, any three Commissioners of Supply, and any three magistrates of a borough, shall be deemed to be a quorum; that at all the meetings of such Commissioners and magistrates, the convener of the county shall be the preses of such meetings, and that the signature of the convener of the county, or of the preses of a meeting of Commissioners of Supply, shall be equivalent to the signatures of the whole Commissioners of Supply present at a meeting thereof."
Clause agreed to, and added to the Bill.
MR. E. ELLICEthen proposed the insertion of the following clause after Clause 35, namely—
"No minister, or pastor, or preacher, or priest of any Christian congregation of any denomination shall be liable to any rate or assessment in respect of his manse, glebe, or stipend, or the annual salary or emolument of his office, from whatever source derived, anything, in the said Act of the 8 & 9 Vict. c. 83, or in any other Act or Acts of Parliament, to the contrary notwithstanding."
THE LORD ADVOCATEsaid, he would assent to the clause, the object of which he thought unobjectionable.
MR. DUNLOPsaid, he was inclined to regard the clause with much disfavour, thinking that the boon sought to be conferred upon ministers of religion was one which was quite uncalled for. Besides, it would place the clergy and ministers of religion in an invidious position in their relation to the laity.
MR. CRAUFURDsaid, he also objected to the principle of the clause, and hoped it would be rejected by the Committee
MR. DUNCANsaid, he thought the wording of this clause would establish a very wide class of exemptions. It would exempt from certain rates and taxes not only persons in holy orders, but all manner of preachers

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and lecturers, who in many parts of Scotland were very numerous.
THE LORD ADVOCATEsaid, he thought, when the Bill was last under discussion, that there was a very general feeling in the House in favour of the principle of this clause. Had he not entertained such an impression, he certainly would not have given it his assent without more deliberation; but, having once approved of it, and an understanding haying been previously come to, to agree to its insertion, he could not now depart from the arrangement.
Clause agreed to.
MR. STIRLINGmoved the addition of the following clause, namely—
"From and after the completion of the first valuation under this Act, it shall be in the power of the Commissioners of Supply to assess on the said valuation, and any subsequent valuation, the rogue money and all the other assessments now levied on the valued rent: provided that notice of the resolution so to assess be given at the meeting of the said Commissioners previous to the meeting at which such assessment is to be made; but after such resolution has once been adopted by the said Commissioners, it shall not be in their power to revert to the former mode of assessment."
Clause agreed to.
THE LORD ADVOCATEthen moved to insert, after Clause 36, the following clause—
"Nothing contained in this Act shall alter or affect any classification or power of classification, or any deduction or allowances, or power of making deductions or allowances from gross rental, made or possessed by any body, persons, or person entitled to impose or levy assessments, but the same shall not affect the value to be inserted in the valuation roll in the terms of this Act; and nothing contained in this Act shall exempt from or render liable to assessment any person or property not at present exempt from or liable to assessment; and within two months after the passing of this Act the Commissioners of Supply of each county, and the magistrates of each burgh, shall hold a meeting and adopt such measures as will enable the first valuation roll under this Act to be made up by the 15th of August, 1555."
Clause agreed to.
MR. LOCKHARTsaid, he begged to move, after Clause 35, to insert the following clause—
"Where certain assessments are at present levied according to ploughgates and other ancient measures, and the proportion of such measures effeering to the several lands and heritages within the area of assessment is from time to time regulated by the real rent thereof, such assessment shall, after the passing of this Act, cease to be levied according to such ancient measures, but
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shall be levied on the persons and subjects chargeable With the same by a poundage rate on the annual value thereof, according to the valuation to be made under this Act."
Clause agreed to.
House resumed; Bill reported as amended.

ECCLESIASTICAL COURTS REFORM.
MR. WALPOLEsaid, that since the Testamentary Jurisdiction Bill came down to the House of Commons, another Bill had been introduced to the House of Lords relating to the questions of matrimony and divorce—a branch of the same subject that fell within the jurisdiction of the Ecclesiastical Courts; and it was not improbable that another Bill would be brought in with regard to Church discipline next year. These three measures would embrace the greater part of the matters affecting the jurisdiction of the Ecclesiastical Courts. He wished to know, therefore, if the Lord President of the Council thought it right to proceed with the Testamentary Jurisdiction Bill this year, and if it would not be advisable to have all the Bills relating to the jurisdiction of the Ecclesiastical Courts before the Houses of Parliament prior to legislating upon any part of that question?
LORD JOHN RUSSELLsaid, that since he had been last asked respecting this question, he had communicated with the Lord Chancellor upon the subject; it had also been considered by the Government. The Lord Chancellor had introduced to the House of Lords a Bill on the subject of divorce. With respect to Church discipline, however, no Bill had been prepared, though undoubtedly it was a matter that would receive early consideration. He found that there was much difference of opinion with regard to the nature of the Court to which these matters should be referred—whether to a branch of the Court of Chancery itself, or to a separate Court, although not altogether resembling, the present Ecclesiastical Courts. These questions were undoubtedly of very great importance, and, considering the late period of the Session, Government had arrived at the determination not to proceed with the Testamentary Jurisdiction Bill. With respect to the Divorce Bill, he believed the Lord Chancellor proposed to make some alterations in that measure, as there was a part of it founded upon the Report of the Divorce Commissioners, which had no reference to Ecclesiastical

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Courts or ecclesiastical jurisdiction in matters of real property. It was, indeed, a separate question, and the Lord Chancellor was of opinion that it should be treated separately; but he reserved any decision on that part of the question for the present.

NAVAL PRIZES—RIGHTS OF NEUTRALS.
MR. J. G. PHILLIMOREsaid, he rose to move the Resolution of which he had given notice. He considered that, although the alliance into which this country had entered with France might at the present time render a change of the law necessary, Parliament ought not to be silent on the subject. The general opinion was, that the policy, now for the first time adopted by Her Majesty's Government, would, if it were generally followed, tend to diminish the miseries of war, and if he thought so no person would be a warmer advocate for that policy than himself; but it was because he entertained a different opinion that he troubled the House at that moment. The principle for which he contended was, that every belligerent Power might capture the property of its enemies wherever it was met with on the high seas, and for that purpose should detain and bring into port neutral vessels laden with such property. For that principle he contended, and though he did not object in the present case to what had been done, he wished that that principle should not be entirely abandoned. Two great principles had always been laid down on this subject—first, that the goods of an enemy on board the ship of a friend were lawful prizes; and, secondly, that the goods of a friend on board the ships of an enemy ought to be restored. Those principles ran through the law of England; they had been laid down by the Consolato del Mare, confirmed by Grotius, and ratified by his approbation. Vattel, Bynkershoek, and other writers on international law had followed in the same track; the same principle had been established by the old law of France, which was extremely severe on this subject. There had been several private treaties by which this rule had been regulated, and in such a way as to expose the interests of this country to no danger whatever. We had made stipulations with France, with which country we had generally made war by sea, and with Holland, with which we had generally been at peace, so that with neither of those countries were
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we likely to be compromised by acting upon this principle. It was at the time when this country was labouring under the pressure of the American war, and also engaged with the three great maritime Powers of Europe—France, Spain, and Holland—that the Emperor of Russia put forth his pretensions on the subject of neutral ships making free goods; but although this country was then in great difficulties, we refused to give way to those pretensions, and, subsequently to that period, treaties had been frequently made which most fully recognised the provisions on this subject which Russia then disputed. In 1793 Russia herself entered into a convention with Great Britain, in which she engaged to controvert the principle that free ships made free goods; so did Spain, so did Portugal, and afterwards Sweden and Denmark. In 1799 America, by a treaty, recognised the same principle; therefore he thought that he had pretty well established his proposition, that, so far as the great maritime Powers were concerned and the greatest authorities went, there could be no dispute upon the subject, and he defied any person conversant with the works of the chief writers on the law of nations upon that subject to controvert that principle, or to say that it had not formed the basis of international law. But there was another authority still more important, and that was the authority of the American Government. Jefferson wrote upon this subject—
"I believe it cannot be doubted that by the general law of nations the goods of a friend found in the vessel of an enemy, or the goods of an enemy found in the vessel of a friend, are lawful prizes."
That was the opinion of a man not particularly noted for his partiality to this country, and in answer to a remonstrance in 1793—
"It is true," said he, "that sundry nations have introduced by treaty another principle, but that is the effect of a particular or special treaty, and not the general principle of the law of nations."
In the proceedings of Congress in 1795 he observed that a source of complaint had been that the English took goods in merchant vessels, which it was said was against the law of nations and ought to be prevented by them (the Americans); but, on the contrary, they considered it to be an old-established principle in the law of nations, that the goods of a friend, if found in the enemy's vessels, and an enemy's

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goods in the vessels of a friend, were lawful prizes. That was also the opinion of the secretary, Mr. Pinckney, and also of Chancellor Kent, who had said that neutral ships did not afford protection to the enemy's property, which might be seized if found on board such a vessel beyond the limits of neutral jurisdiction. Indeed, it was formerly a question whether a neutral vessel itself conveying an enemy's property, was not liable to confiscation, but that principle had been abandoned, in 1793, by the naval Powers of Europe, and was not sanctioned by the existing law of nations. During the whole of the series of wars which grew out of the French Revolution, the Government of the United States admitted the English rule to be a valid one, and that it was the true doctrine of the international law, that an enemy's property was liable to be seized if found on board neutral ships. The same principle was also distinctly laid down by Professor Wheaton, who said they ought not to restore an enemy's property seized in neutral vessels. The answers made by secretaries Pinckney and Jackson were to the effect, that there could not be any doubt with regard to the authority, or much question as to the right of America to insist on this principle. Chancellor Kent had said, there was a marked difference in the principles upon which war was carried on by land and by sea. The object of maritime war was the destruction of the enemy's commerce and of his naval power, and the capture and destruction of private property was essential to that end, and was allowed by the law of nations. But the reason why a different principle was to be observed in continental wars carried on by land was not so clear. Was it true that the same principle did not prevail in continental wars? Was it true that they were carried on with a strictness and regularity as respected private property, which formed a marked contrast to war carried on by naval means? He (Mr. Phillimore) must say, that a careful perusal of history had not led him to form any such conclusion. Was not the earliest thing they read of in reference to this subject, the axiom that wars should always be made to support themselves? Gustavus Adolphus was reputed a humane and enlightened warrior, but he acted upon that principle, so did Marshal Turenne, Frederick the Great himself, and the most renowned French general within the last century, whose instructions were to occupy portions of territory without respect to private right, and they found
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such expressions in those instructions as, "the Prince of Waldeck is indisposed; you must seize all you can in his territory." That was the principle of the great Napoleon, and did not our own history show that we had acted upon much the same principle? Let them look at the storming of towns and the sacking of cities described in the history of the Peninsular war. It was, therefore, not true that there was so much more regularity and superiority in carrying on continental as compared with maritime wars, but the case was exactly the other way. The only difference was, that in carrying on continental wars injury to private property was often necessary, whereas in maritime wars it was absolutely essential as a means of weakening the enemy's power. He thought, therefore, the reason of such a proceeding was plain, and that there could not be any kind of doubt whatever of the authority. But, dismissing the question of authority altogether, he would argue it on reason alone, for it was upon that the whole argument turned. He took it for granted that every one desired a principle should prevail which would render war less probable; but the contrary would be the case if the principle that free ships made free goods prevailed, for it tended to increase the probability of war by making it the harvest of neutral nations, and every neutral nation would desire to involve its neighbours in hostilities that it might gain advantages from which at other times it was necessarily excluded. It consequently gave every neutral nation a direct interest in the hostilities of foreign States. On what principle, he therefore asked, did they prohibit neutrals from carrying contraband of war? On what principle did they confiscate a ship that carried despatches to the enemy? On what principle did they prohibit a ship from sailing into a blockaded port? Why, upon this—that they would not allow a belligerent to do by means of a neutral that which it could not do by itself; whereas, by the adoption of the principle that free ships made free goods, they would, instead of locking up their enemy's produce, and, in consequence of the failure of his resources, increasing his desire for peace, allow it to be carried all over the globe, and thus destroy the effect of their own efforts. Surely, if it was desirable that the blood and treasure expended in war should produce any effect, it was desirable that the blood they shed and the treasure they expended should produce the greatest possible return; and the conse-

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quence of not allowing it to do so must be that they would have to shed more blood and treasure to accomplish the objects for which the war was originally commenced. The object of war, while it lasted, was to do as much injury as they could to their enemy and to deprive him of the advantages of peace. If they allowed him to enjoy those advantages, of what use was it to expend the blood of their soldiers, and the taxes wrung from the hard labour of the people? His motives for desiring peace would vanish just in proportion as he enjoyed the advantages of peace in the time of war. It was absurd that during a time when they were taxing the revenue of the country and the resources of the people, and inducing them to enlarge those resources as much as possible, with a view to inflicting chastisement upon the enemy, they should enable that enemy, by means of neutral ships, to preserve his commerce, and enjoy those advantages which it would otherwise be impossible for him to obtain. He could perfectly understand the arguments of those who, like his hon. Friends the Members for Manchester (Mr. Bright) and the West Riding (Mr. Cobden) upheld, upon benevolent, though, he thought, very mistaken principles, that war ought to be abandoned, or rather ought never to be undertaken; but if the principle was to be adopted, that being at war they ought not to do the enemy all the mischief they could, and while carrying on war to allow him, in a great measure, to enjoy the advantages of peace, that the blood they shed and the money they spent was not to inflict injury on the subjects of the Power with which they were at war, they had better recall their ships, disband their armies, and lower their flag; but if they thought otherwise, they should certainly not do that which could only have a tendency to neutralise the exertions they were disposed to make. For those reasons he trusted that the House would adopt the Resolution of which he had given notice. He had stated his proofs and given the authorities who appeared to him to be necessary, and he believed, with the exception of some modern writers and a few who wrote with a particular purpose, they were unanimous in their opinions, and gave the strongest reasons, showing that it was a mistaken humanity to suppose that a nation could carry on a maritime war, and at the same time allow their enemy the advantages of peace. He thought he should be justified in that opinion by the authority of every statesman that this country had
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produced up to the present time, and he hoped we should not surrender that bulwark which we had hitherto preserved impregnable, or descend from that strong ground which our ancestors had thought their blood and treasure had been well employed in obtaining for us, and he would admit no principle the effect of which would be to diminish our strength or make us less able to resist either the open or disguised attacks of any earthly despot.
MR. MITCHELLseconded the Resolution, having promised to do so, but said he could not concur in that part of the Resolution which stated "that, however, from the peculiar circumstances of this war a relaxation of the principle may be justifiable." He believed that no relaxation of the principle relating to the trader of Russia, while we were engaged in war with that country, would be at all conducive to the advantage of the trade of this country, and there was probably not a man well acquainted with Russia who would attempt to dispute that no surer means could be employed to humble that empire than the destruction of her trade. That country exported produce annually to the amount of from 12,000,000 l. to 15,000,000 l., a large portion of which went directly in the shape of revenue to the great Russian landholders. If, therefore, they destroyed that outlet for their produce, there could be no question that its effect would be to deprive the only class, except the Emperor himself, which had any influence upon the Government of the country of their revenue; and the only way of proceeding effectually was to stop the trade of the country, which they could not well do if they allowed the relaxations which had been the subject of discussion. He believed that somewhere about December, when it was pretty certain that war would take place between this country and Russia, two of the most eminent merchants in the Russian trade went to the noble Lord the Secretary of State for Foreign Affairs, and stated to him that they were authorised by the trade to ask whether it would be safe to make the usual advances to Russia, and to enter into the usual trade engagements with subjects of that Power—on which Lord Clarendon, with an almost entire absence of official reserve, told them it would be highly unsafe. The consequence was, that the value of Russian goods declined 20 per cent, and a great discouragement was given to the trade of Russia. A few houses, however, finding the most eminent of the merchants, acting on the opinion

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of Lord Clarendon, had abstained from making purchases in Russia, bought considerable quantities of goods at the reduced price, and the moment war was proclaimed they went to the Government and said, "We bought these goods before war was declared, having no idea that it would take place," and they therefore asked to be allowed to have those goods from Russia which they had bought at 20 per cent below what they would otherwise have been worth, and numbers of the Russian vessels were allowed to leave their ports after the declaration of war. In like manner, it had been intimated that Archangel would be blockaded; but they were not told when it would take place, or when goods would be allowed to be removed front it. They had also had an intimation that the Black Sea would be blockaded, and the consequence was, that, owing to the relaxation in question, neutral vessels went there in shoals, obtaining the most enormous freights, and, owing to the unfair operations that were allowed, those who had no scruple about dealing with the enemies of the nation made profits in many cases of 50 per cent, to the manifest injury of the fair and loyal trader. He thought it would be greatly for the advantage of British trade that they should know when it was to take place. There could be no doubt that to a certain extent they could not prevent a transit trade between Russia and Prussia, but the relaxations introduced bad enormously extended that trade by preventing the inspection of goods on board neutral vessels. Now, what had been the course adopted by the Government? By a letter, issued, he believed, by the Board of Trade in reply to an inquiry from a merchant in the Russian trade, they learnt that, according to the law of the country, any British merchant buying goods of a Russian, that country being at war with England, such goods would be considered the property of an enemy and seized; but on the 15th of April an Order was issued from the Treasury which entirely abrogated that letter of the 11th, stating that, so long as such goods were not shipped front a Russian port, or in a Russian vessel, it was perfectly free for any one to obtain them, provided the port from which they were to be sent was not blockaded. In consequence of the intimation given on the 11th of April, the English merchants had determined to have nothing to do with the trade, and made their arrangements accordingly, yet on the 15th of April an
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Order in Council appeared permitting such trade. He had no hesitation in saying that the manner in which British merchants had been treated by the Government in this matter had been in the highest degree unjust to our traders and injurious to our trade.
Motion made, and Question proposed—
"That it is the opinion of this House, that, however, from the peculiar circumstances of this war, a relaxation of the principle that the goods of an enemy in the ship of a friend are lawful prize, may be justifiable, to renounce or surrender a right so clearly incorporated with the law of nations, so firmly maintained by us in times of the greatest peril and distress, and so interwoven With our maritime renown, would be inconsistent with the security and honour of the country."
SIR WILLIAM MOLESWORTH: The Resolution of the hon. and learned Gentleman (Mr. John Phillimore) contains two distinct positions—one is, that "from the peculiar circumstances of this war a relaxation of the principle, that the goods of an enemy in the ship of a friend are lawful prize, may be justifiable;" the other is, that "to renounce or surrender a right so clearly incorporated with the law of nations, so firmly maintained by us in times of the greatest peril and distress, and so interwoven with our maritime renown, would be inconsistent with the "security and honour of the country." Therefore, the Motion of the hon. and learned Gentleman raises two distinct questions—one, a practical question of political expediency; the other, a theoretical question of international law. The theoretical question is, whether the subjects of a neutral State ought to abstain altogether from carrying in their ships the goods of belligerents, and, therefore, whether a belligerent State ought to have the right of confiscating the goods of its enemy, not contraband of war, on board the ships of the subjects of a neutral State. The practical question of political expediency is, assuming that the subjects of a neutral State ought to abstain altogether from carrying in their ships the goods of belligerents, whether it would be wise and politic fur this country, in existing circumstances, to confiscate the goods of Russian subjects, not contraband of war, on board neutral vessels; or whether it would be more politic and more expedient to waive for the present that belligerent right.
Sir, with regard to the practical question of political expediency, the hon. and learned Gentleman has admitted in the terms of his Resolution, and also in his speech, that, from the peculiar circumstances of the pre-

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sent war, a relaxation of the principle that the goods of an enemy in the ship of a friend are lawful prize may be justifiable. The hon. Member for Bridport (Mr. Mitchell) questioned the expediency of that relaxation, and, therefore, before I sit down, I will assume, for the sake of argument, with the hon. Gentleman, that the principle asserted in this Resolution is a sound one; and then I will endeavour to demonstrate to the House that, in existing circumstances, it was wise, expedient, and proper, that this country should waive for the present the belligerent right in question. But I will commence with the theoretical question which has been raised by the hon. and learned Gentleman.
Sir, the hon. and learned Gentleman asks the House in the terms of his Resolution to declare emphatically that to seize the goods of an enemy in the ship of a friend, is a right so clearly incorporated with the law of nations, and so interwoven with our maritime renown, that to renounce or surrender it would be inconsistent with the security and the honour of this country. Therefore, if the House were to agree to the Resolution of the hon. and learned Gentleman, it would by so doing pledge the honour and reputation of this country to uphold and maintain that position for ever. Now, I will assume, for the sake of argument, that there may be cases in which it may be wise and expedient for this House to limit and fetter its own liberty of action and that of its successors, by laying down abstract rules of conduct; but I think that every one must admit that it ought not to pledge the honour of this country to uphold and maintain for ever any proposition about the truth of which any reasonable doubt may be entertained. Therefore, even in order to induce the House to entertain this Resolution, the hon. and learned Gentleman ought to have clearly demonstrated that the position contained in his Resolution is one which is indisputably true. Has the hon. and learned Gentleman done so? The hon. and learned Gentleman has adduced many learned arguments, and quoted many learned authorities in support of the rule of confiscating enemies' goods on board neutral ships. He has traced the origin of that rule to the dark ages that followed the downfall of the Roman empire; he has shown that in those rude times it was a rule of war on the Mediterranean Sea, and that the first authority for it was the celebrated Consolato del Mare, which was probably written in the eleventh century. In
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support of the rule of the Consolato del Mare, the hon. and learned Gentleman has referred to the great work of Grotius. With regard to the authority of Grotius on this subject, I must observe that Grotius deduced the rights of war chiefly from the custom and usage of ancient nations, from the sayings of ancient orators, and from the writings of the poets, historians, and philosophers of antiquity; but that since his days many of the rights of war as laid down by Grotius have become obsolete, in consequence of the progress of humanity and civilisation. I must also observe, that nothing can be more bald or meagre than the chapter of the work of Grotius on the subject of the rights of neutrals—namely, the seventeenth of the third book—in which he treated, De his qui in belle medii sunt. The reason for that baldness and meagreness is obvious. Grotius wrote at a period when the rights of neutrals were little understood or cared for; because in his days neutrals scarcely existed, war was contagious—when two belligerents began to fight, the adjacent nations were eager to join in the fray, and few were willing, and still fewer were able, to stand aloof from the conflict.
Sir, the work of Grotius contains only one distinct reference to the rule of confiscating enemies' goods on board neutral ships—namely, in a note to the fourth section of the first chapter of the third book, in which Grotius quotes the rule in question from the Consolato del Mare, without expressing either approval or disapproval of it. Therefore, I question, I dispute, I deny the right of the hon. and learned Gentleman to claim Grotius as an authority for the principle that "the goods "of an enemy in the ship of a friend are "lawful prize." The hon. and learned Gentleman has also quoted in support of the rule of the Consolato del Mare the authority of Bynkershoek and Heineccius, publicists of eminence about the beginning of last century, but nations were then much less civilised and humane than at present. The hon. and learned Gentleman has likewise quoted Vattel. Vattel was, without doubt, an elegant and popular writer, but, according to Chancellor Kent, very deficient in philosophical precision, and nothing can be more laconic than Vattel on the rule in question. He merely asserts it to be a rule of war, without assigning any reason in support of it. The hon. and learned Gentleman has also mentioned the names of several legists learned in the law, wise have declared the rule of

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the Consolato del Mare to be a rule of international law. But, I must observe, that learned legists are apt to assume that what is law ought always to be law. This is a fallacy, which appears to me to pervade the whole argument of the hon. and learned Gentleman, and one which generally pervades the arguments of gentlemen learned in the law; because, as a rule, the more learned the legist, the less inclined is he to diminish the value of his stores of legal lore by reforming the law. The hon. and learned Gentleman has scarcely alluded to the fact that almost all the modern publicists of continental Europe—namely, Hübner, Klüber, De Martens, De Rayneval, Ortolan, Hautefeuille—have condemned the rule of the Consolato del Mare as a relic of barbarism, which ought to be removed from the code of the public law of civilised nations, and replaced by the rule "free ships, free goods."
Sir, I must, however, admit that it has been the practice among European nations for a belligerent State to make prize of enemies' property on board neutral ships, except when restricted from so doing by treaty with the neutral State; and I will also admit, for the sake of argument, that this practice has been held by many high authorities on international law to be in accordance with those rules of conduct between sovereign States which constitute the present public law of Europe. But these admissions do not necessarily warrant the conclusion at which time hon. and learned Gentleman arrived, namely, that the practice in question is right and conformable to what ought to be the public law of nations, though it is in accordance with the present public law of Europe. For the present public law of Europe may, like the municipal law of many of its individual States, be imperfect in some respects and require amendment. Because the present public law of Europe has derived its origin from two distinct sources—partly from those abstract notions of what is right and just, which form what is termed the law of nature; partly from the custom and usage of nations in their intercourse with each other. It is evident that those rules of the present public law of Europe which are based upon correct notions of what is right and just cannot require amendment. Not so those rules of the present public law of Europe which have been founded on custom and usage; for the custom and usage of nations, especially with regard to war, have frequently been at variance with correct notions of what is right and just. The jus
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belli, which has been chiefly founded upon custom and usage, has differed in different nations and in different sets and families of nations. It has varied in the same nation at various periods of its history. It has changed with the change of the religion, manners, and institutions of a nation. Grotius says, "That is often jus gentium in one "part of the world which is not so in an- other. According to Montesquieu,—Every nation has its own law of nations—even the Iroquois, who eat their prisoners, have one—they send and receive ambassadors, they know the laws of war and peace, but the evil is, that their law of "nations is not founded upon true principles." The question is, is the rule of the English law of nations with regard to the capture of enemies' property on board neutral ships founded on true principles or not? I admit that this rule has been generally acted upon by European States in their wars with each other; but the majority of them have maintained, and still maintain, that the rule in question is an improper one, and have constantly endeavoured, by means of treaties, to expunge it from the public law of Europe, and to substitute for it the rule that enemies' goods should not be liable to confiscation on hoard neutral ships.
Sir, the hon. and learned Gentleman has stated at some length the chief arguments in favour of his principle, that "the goods of an enemy in the ship of a friend are lawful prize." As my object is to show that this principle is not so indisputably sound that this House ought to pledge the honour of the country to uphold it for ever, I will refer, as briefly as I can, to the chief arguments which have been urged against this principle and in favour of the rule, "free "ships, free goods," by those persons whom I will call the advocates of the extension of neutral rights. They say, that in the earlier periods of history, and among the less civilised nations, the rules of war were far sterner than at present; that the maxim, that it is lawful for a belligerent to injure his enemy by every possible means was acted upon to the fullest extent; that neutrals scarcely existed, their rights were unknown, and the law of war was the will of the most potent belligerent; but that the tendency of civilisation has been, and still is, to mitigate the severity of the code of war, to establish and enlarge the rights of neutrals, and to protect weak neutrals against the tyranny of powerful belligerents; that this tendency has as yet, however, produced less change in the rules of war by sea than

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in the rules of war by land; that at present the rules of maritime warfare are the same as those which were practised in war by land in rude and barbarous ages; that, for instance, private war by land has long been abolished, but private war by sea is still sanctioned by the code of maritime war; that to seize the private property of the peaceful subject of an enemy for the sake of gain is repugnant to the usages of modern war by land, and is an act which would meet with the condemnation of all civilised nations; but to do similar acts on the sea, and even to hire foreign bucaniers, with a licence to pillage peaceful merchants, is conformable to the present rules of maritime war. Now (say the advocates for the extension of neutral rights), though valid reasons may perhaps be assigned why the laws of war should be sterner by sea than by land, why the rights of neutrals should be more limited on the ocean than on the continent, yet no valid reason has ever been assigned for treating neutrals on the sea in a manner in which neutrals on land have never been treated since the existence of neutrals was recognised. They would tell the hon. and learned Gentleman that his principle, that "the goods of an enemy in "the ship of a friend are lawful prize," was introduced into the public law of Europe at a period when the rights of neutrals were little understood and less cared for; that it arose from a misapplication to neutrals of the Roman law with regard to the subjects of belligerents. For when the European States that sprang from the dismemberment of the Roman empire began to emerge from the barbarism consequent upon the downfall of that empire, the want of some rules to determine the conduct of Sovereign States towards each other began to be felt, and attempts were made to frame an international law. The early legists who made those attempts were conversant only with the Roman law, and they adopted as rules of their public law many maxims taken without alteration from the Roman law. In this manner a grave error was introduced into the public law of Europe, which has been very injurious to the interests of neutrals. For the Roman law was not a public law of nations, but only the municipal law of the Roman empire. Therefore, the Roman law only determined what ought to be the conduct of the subjects of Rome towards the enemies of Rome; it had no concern with the question of what ought to be the conduct of free and independent neutrals towards the enemies of Rome. The Imperators of
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Rome prohibited, and, as Sovereigns, they were entitled to prohibit, their subjects from trading with an enemy, or carrying on board their ships the goods of the enemies of Rome. The Imperators of Rome punished, and, as Sovereigns, they were entitled to punish, their disobedient subjects with the confiscation, not only of the goods, but even of the ships which contained the goods of the enemies of Rome. Now, the Sovereigns of Europe, in adopting the provisions of the Roman law with regard to trade with enemies, not only applied those provisions to their subjects, to whom they, as Sovereigns, were entitled to apply them, but extended those provisions to neutrals, over whom they had no sovereignty whatever. It is self-evident, however, that because a Sovereign is entitled to issue certain commands to his subjects, and to punish disobedient subjects, it does not follow that the same Sovereign is entitled to issue the same commands to free and independent nations, and to punish the disobedient as if they were his subjects. Now, under the Roman law, the ship upon which the goods of the enemies of Rome were seized, the ship which was confiscated for containing those goods, and the trade which was prohibited with the enemies of Rome, were the ship and the trade of the subjects of Rome, and not of neutrals. By adopting as rules of the public law of Europe the rules of the Roman law with regard to commerce with enemies, the Sovereigns of Europe have at various periods and repeatedly laid claim to and exercised three rights very injurious to neutrals, namely, the right of capturing enemies' goods, not only on board the ships of their subjects, but also on board the ships of neutrals; secondly, the right of confiscating, not only the ships of their subjects, but also the ships of neutrals, for containing enemies' goods; and, thirdly, the right of prohibiting, not only the trade of their subjects, but also of neutrals with the enemy. The two last of these claims have long since been abandoned in theory, though not in practice; the first alone now exists both in theory and practice, but the friends of the extension of neutral rights affirm that it is destined to share the fate of its companions, and ought immediately to be expunged from the public law of civilised nations. They affirm that a neutral State is entitled in reason and justice to say to a belligerent:—
"As a neutral I have nothing to do "with your quarrel; you may injure your enemy as much as you like, provided

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that in so doing you do not injure me, who am a neutral; you may hit your antagonist as hard as you can, but you must not strike me, in order to hit him; and if he hurt you, you must not retaliate upon him by hurting me. All that you, as a belligerent, are entitled to demand of me as a neutral is, that I will not take any part against you; that I will not directly succour or aid your enemy; that when you are fighting I not furnish him with munitions of war; that when you are blockading his ports or besieging his towns, I will not interfere, nor supply him with the means of prolonged defence; but, provided that I abstain from doing these things, as a neutral, I am entitled to carry on with your enemy a trade and commerce as free and unrestricted as he and I may think proper to permit." For (say the friends of the extension of neutral rights) "the sea is free—Grotius has proved it—Selden was unable to refute him; therefore no portion of the ocean is the exclusive property of any State; except that portion which is temporarily occupied by the ship of a State; over that portion the State whose ship occupies it has for the time sole and exclusive jurisdiction. A neutral ship is a floating portion of the territory of a neutral Sovereign; its inhabitants are his subjects; they are bound to obey his municipal law, and no other law. if they commit crimes on board the ship, they are tried and punished by his penal law; and the owner- ship of every article of property on board the ship is determined by his civil law." Therefore (say the friends of the extension of neutral rights, addressing a belligerent Sovereign), "your quarrel, with which the neutral Sovereign has nothing to do, and to which, as a neutral, he ought to be perfectly indifferent, cannot lessen his rights on the free ocean, cannot entitle you as a belligerent to interfere with his floating territory more than with his fixed territory. But it must be admitted that the subjects of a neutral Sovereign, the inhabitants both of his floating territory and of his fixed territory, ought not to directly aid or succour your enemy. For if he were to sanction such conduct on the part of his subjects he would cease to be a neutral, and would become your enemy. Therefore he ought to prohibit the inhabitants both of his fixed and of his floating territory from directly aiding and succouring your antagonist;
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and he ought to authorise you as a belligerent, and you ought to be authorised by the law of nations, to enforce that prohibition by visiting his ships and confiscating contraband of war, and by seizing his vessels in the event of their attempting to break through your blockade. But, though it must be admitted that the subjects of a neutral Sovereign ought to abstain from doing those things, the evident aim and intent of which are to directly succour and aid your antagonist—ought to abstain from all acts which, if dune by his commands, or by his ships of war, would justify you in treating him as an ally of your enemy— yet it does not follow that the subjects of a neutral Sovereign are bound to abstain from doing those things which, without directly succouring and aiding your antagonist, may tend to benefit and enrich him, and, by enriching him, may tend to strengthen him, and, by strengthening him, may tend to render it more difficult for you to vanquish and overcome your enemy. For you must admit that the established and universally recognised laws of European warfare permit the subject of a neutral Sovereign to do many things of this description; that, according to the present public law of Europe, he is entitled to trade with your enemy in every description of goods except contraband of war; he is entitled to enter any one of your enemy's ports which is not strictly blockaded; he is entitled to load his ships with goods and merchandise of the growth or manufacture of your enemy; he is entitled to carry off those goods and merchandise, and to sell them in other ports. You cannot deny that the subject of a neutral Sovereign is entitled by the law of nations to do all these things, but you affirm that he must do them subject to this strange and extraordinary condition, that during the period that he is carrying the goods in question from one port to another they should legally cease to belong to your enemy." And (say the friends of the extension of neutral rights), in order to ascertain whether this strange and extraordinary condition is fulfilled, you claim, as a belligerent, the right of stopping neutral ships on the highway of the free ocean, not only for the purpose of ascertaining their nationality, not only for the purpose of preventing them from carrying contraband of war to your enemy or breaking your blockade, but also

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for the purpose of searching and minutely inquiring and examining into the legal ownership of every article of property on board neutral ships; and if you find anything on board a neutral ship which you fancy belongs to your enemy —any property the purchase of which from your enemy you suspect has not been completed according to the strict and technical rules of your law—you claim, as a belligerent, the right of detaining the neutral ship, and of compolling it to change its route and enter one of your ports, in order that your judges may inquire into and determine the ownership of the property in question; and if your judges decide that, according to the technical rules of that portion of your municipal law which you call the law of nations, the purchase of the property in question has not been completed, and that its legal ownership is still vested in your enemy, you claim the right of confiscating that property. "And (say the friends of the extension of neutral rights), you claim the right of causing these powers to be exercised, not only by the commanders of your regular ships of war, over whom you have direct control, and who are gentle- men, and have the honour and interest of their country at heart; but you claim the right of delegating these powers— at all times odious and vexatious, and which may be used to the great detriment and injury, and even destruction of the trade and commerce of neutral States—to the freebooters, bucaniers, and foreign cutthroats who man your privateers, over whom you have little or no control—scourges of the ocean, whose object is plunder, and who can only be distinguished from pirates by the mark of your license to pillage." Now (say the friends of the extension of neutral rights), "your status, as a belligerent, gives you no more right to enter a neutral ship to search for your enemy's property, than to enter a neutral port to search for your enemy's ships. As long as you and the neutral Sovereign are at peace you have no right to meddle with any property on board a neutral ship except contraband of war. For on board a neutral ship the neutral Sovereign is sole and independent; and, in virtue of his sovereignty, all property on board the ship belongs in fact to him, for he can dispose of it, and does dispose of it, according to his will and pleasure as
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declared in the rules of his municipal law. Therefore, as long as you and he are at peace, you have no right to ask any questions about any property on board a neutral ship—either how he be- came possessed of it, or upon what conditions he acquired it; whether he paid for it in hard cash, or obtained it on credit; whether he holds it for his own use or in trust for anybody else. To insist upon asking these questions—to insist upon determining them in your courts of law—to exercise any power over a neutral ship which the neutral Sovereign neither concedes to you nor admits that you are entitled to exercise according to what ought to be the rules of international law—are acts of violence to which neutrals have submitted only when neutrals have been weak and belligerents strong, and which neutrals have resisted, and will again resist, whenever strong enough to defend their rights."
Such, Sir, is the language which the friends of the extension of neutral rights consider that they are entitled to hold to-wards every belligerent power that claims the right of confiscating enemies' goods not contraband of war on board neutral ships. They would tell the hon. and learned Gentleman that the position to the eternal maintenance of which he would pledge the honour of this House and country, so far from being indisputably true, is demonstratively false. And very many nations would agree with them. For at various times the great majority of European States have been induced, partly by argument, partly by self-interest, to condemn the rule of capturing enemies' goods on board neutral ships, and they have repeatedly endeavoured, by treaties and conventions with each other, to expunge that rule from the public law of Europe, and to substitute the rule that free ships should give freedom to the goods which they contain.
Sir, I have carefully examined a large proportion of the treaties of peace and commerce, which during the last two centuries have been concluded between the chief Powers of the civilised world. I find that during the century and a quarter that preceded the French Revolution, the all but invariable rule of amicable relations, as established by treaty, between the great maritime powers of western Europe, namely, between England, France, Spain, the United Provinces of Holland, and Portugal,

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was "free ships, free goods;" that is, that the goods of the enemies' of one contracting Power, being a belligerent, should not be liable to confiscation on board the ships of the subjects of the other contracting Power, being a neutral. This rule is contained in almost every one of the treaties of peace and commerce which England concluded in the latter part of the seventeenth century, and in the eighteenth century, with the Powers I have just mentioned. This is an important fact. I think it affords so strong a precedent for the policy which Her Majesty's Government have adopted, that I will briefly enumerate the treaties to which I refer.
The first English treaty on record which contains the principle "free ships, "free goods," was that of Westminster, in the year 1654, concluded between John IV., King of Portugal, and that warrior and statesman, than whom none greater ever ruled the destinies of this nation, who made the name and flag of England respected on every sea, and whose alliance was courted by all the monarchs of Europe. In the 23rd article of that treaty it was declared "that all the goods and merchandise of the enemies of the said republic or king, found on hoard the ships of either, or their people, or subjects, shall remain untouched." This treaty was confirmed by the treaty of Whitehall, of 1661 (the marriage treaty between Charles II. and the Infanta of Portugal). It was re-confirmed by the defensive treaty of Lisbon in 1703 (the year of the famous Methuen treaty), and it continued unaltered till the year 1810, when, by the 26th article of the treaty of Rio de Janeiro, "the power of carrying in the ships of either country goods and merchandise the property of the enemies of "the other country was renounced and abrogated." Therefore, for 156 years the invariable rule of our amicable inter- course with Portugal was "free ships, free goods."
I will next pass in review our treaties with France. In the year 1655 the Lord Protector concluded a treaty of peace with Louis XIV., in the 15th article of which it is declared that—"Omnes naves ad subditos et populaces alterutriusque pertinentes, et in mari Mediterraneo, Orientali seu Oceano negociantes, liberæ sint, atque etiam onus suum liberum reddant, licet, in illas invehantur mercimonia imo grana, leguminave quæe alterutrius hos- tium sint." How long the treaty of
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1655 continued in force I am unable to say. It was not renewed by the treaty of peace of Breda, in 1667. I will, there-fore, proceed to the year 1677, in which we concluded with France the treaty of commerce of St. German en Laye. The 8th article of that treaty declared that "merchandise of the enemies of the most Christian king shall not be taken or confiscated if they are found on board the ships appertaining to the subjects of Great Britain, though the said merchandise make up the best part, or the whole, lading of the said ships, but still, with an exception to contraband of "war;" and similarly with regard to the merchandise of the enemies of Great Britain on board the ships of the most Christian king. These stipulations were the rule of our amicable relations with France, as established by treaty, for the next 116 years. In the period which elapsed from 1677 to 1793 we concluded with France five treaties of peace, and three treaties of commerce. For instance, we concluded in 1677, as I have already said, the commercial treaty of St. German en Laye; next, in 1697, the treaty of peace of Ryswick; then, in 1713, the treaties of peace and commerce of Utrecht; in 1748, the treaty of peace of Aix-la-Chapelle; in 1763, the treaty of peace of Paris; in 1783, the treaty of peace of Versailles; and in 1786, the treaty of commerce and navigation of Versailles. Now, in every one of these treaties, except the treaty of peace of Ryswick (which contains no reference to the trade of one contracting party with the enemies of the other, and which lasted only for five years), I have found an article which either expressly contained the provision that the flags of France and England should protect the goods of their respective enemies, or which renewed the commercial treaty of Utrecht of 1713, which contained that provision in the fullest manner. I should observe that the commercial treaties of Utrecht, of 1713, were the bases of the commercial relations between France, England, and Spain, before the wars of the French Revolution, and they still are the basis of the commercial relations between this country and Spain, and between Spain and France. I will read an extract from the 17th article of the commercial treaty of Utrecht between England and France:—"It shall be lawful for all the subjects of the Queen of Great Britain and of the most Christian King to sail with their

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ships with all manner of liberty and se- curity, no distinction being made who are the proprietors of the merchan- dise laden thereon, from the places, ports, and havens, of those who are enemies of both, or of either party, with- out any opposition or disturbance what- soever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy, to another place belonging to an enemy, whether they be under the jurisdiction of the same prince or under several. And as it is now stipulated concerning ships and goods that free ships shall also give freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, al though the whole lading, or any part thereof, should appertain to the enemies of either of their Majesties, contraband goods being always excepted." The 17th article of the treaty of commerce of Utrecht was repeated verbatim in the 20th article of the treaty of commerce of Versailles of 1786. This treaty terminated with the war of 1793. I have shown, therefore, that from 1677 to 1793, the all but invariable rule of our friendly intercourse with France—the rule for at least seventy five years out of eighty years of peace—was that free ships should give freedom to goods. It is worthy of remark, that by the commercial treaty of Utrecht of 1713, which continued in force, except during periods of war, for the subsequent eighty years, the subjects of one party were entitled by treaty to carry on the coasting and colonial trade of the enemies of the other party.
I will now refer to our treaties with Spain. The first, which contained the principle that free ships shall give freedom to goods, was the treaty of Madrid, concluded in 1665. From that period to 1796, a period of 131 years, no less than thirteen treaties of peace and commerce were concluded with Spain—namely, in 1665 the first treaty of peace and commerce of Madrid to which I have already referred; in 1667 another treaty of Madrid; in 1670 a third treaty of Madrid; in 1680 the treaty of Windsor Castle; in 1707 the treaty of commerce of Barcelona; in 1713 the treaties of peace and commerce of Utrecht; in 1715 the treaty of commerce of Madrid; in 1721 the treaty of peace of Madrid; in 1729 the treaty of
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peace of Seville; in 1748 the treaty of peace of Aix-la-Chapelle, confirmed by the treaty of Madrid of 1750; in 1763 the treaty of peace of Paris; and 1783 the treaty of peace of Versailles. In every one of these treaties there is an article which either expressly declares that free ships shall give freedom to goods, or renews a treaty which contains that provision. Therefore, for the 131 years, ending with the year 1796, the invariable rule of our amicable intercourse with Spain, as established by treaty, was "free ships, free "goods." It is worthy of remark that the first additional article of the treaty of Madrid of 1814 ratified and confirmed all treaties of commerce which subsisted between England and Spain in 1796, and consequently confirmed many treaties, and among others the treaty of Madrid of 1667, which contained the principle that "free ships shall give freedom to goods." The treaty of 1814 is still in force. Consequently, the subjects of Spain are now entitled by that treaty to carry in their ships the goods of the subjects of Russia, and if we were to seize Russian merchandise on board Spanish ships, we should be guilty of a breach of treaty.
With reference to our treaties with the United Provinces, the first, which contained the rule that free ships shall give freedom to goods, was signed at Breda in 1667. It contained as a temporary rule of maritime commerce between England and the United Provinces seventeen articles extracted from a treaty of commerce between France and the United Provinces, which was concluded at Paris in 1662. The same articles were repeated in the marine treaty of the Hague in 1668. They were temporarily renewed by the treaty of peace of Westminster in 1674. They were extended by the marine treaty of London of 1674, and by the explanatory declaration of the Hague of 1675, which declared that the ships of either contracting power might carry on the coasting and colonial trade of the enemies of the other. These treaties were reconfirmed in 1685, 1689, 1703, 1711, and 1716, and continued in force down to the war of 1780, but were not renewed by the treaty of peace of Paris, in 1784. Therefore, from 1667 to 1780, the invariable rule of our friendly intercourse with the United Provinces as established by treaty, that is, the rule for 111 years of peace was, that the ships of the United Provinces should make free the goods of the enemies of England, and be

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entitled to carry on the coasting and colonial trade of the enemies of England, and reciprocally.
Sir, the treaties between England and the great maritime powers of Western Europe, to which I have referred, show that in the interval between 1654 to 1793 we were six times at war with France, seven times at war with Spain, and three times at war with the United Provinces. We terminated those wars by six treaties of peace with France, seven treaties of peace with Spain, three treaties of peace with the United Provinces, and during the same period we concluded with the same powers and Portugal eighteen treaties of commerce or other conventions, in all thirty-four international engagements, of these only three—namely, two with France in 1667 and 1697, and one with the United Provinces in 1784, did not contain any provision with regard to the treatment of enemies' goods on board neutral ships, but all the other treaties of peace contained an article, which provided that the ships of one contracting party, being a neutral, should make free the goods of the enemies of the other contracting party, being a belligerent. I think, therefore, that I have made good my position that, during the century and a quarter which preceded the wars of the French Revolution, the all but invariable rule of our friendly relations; as established by treaty, with the great maritime powers of Western Europe was, "free "ships, free goods." I think, therefore, that it would be difficult for this House, in the teeth of these facts, to agree to the resolution of the hon. and learned Gentleman, and to declare that it would be inconsistent with the maritime renown, the security, and honour of this country, to do the very thing which, for a century and a quarter, we generally did when we concluded a treaty of peace or commerce with France, Spain, the United Provinces, or Portugal. For we renounced and surrendered as long as those treaties lasted the right of confiscating enemies' goods in the neutral ships of those powers, and but for the wars of the French Revolution most of those treaties would still be in force.
Sir, the rule "free ships, free goods," is invariably to be found in the treaties of peace or commerce which were concluded between the other great maritime Powers of Western Europe during the century and a quarter which preceded the French Revolution. For instance, in the treaties of
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peace between France and Spain, that rule first appeared in the treaty of the Pyrenees of 1659, which was confirmed by that of Aix-la-Chapelle in 1668, and by that of Nimeguen in 1678. It was also contained in the treaty of Madrid of 1721. It was renewed and confirmed by the treaty of Seville of 1729. The family compact of 1761, as explained by the convention of 1768, declared that the subjects of France and Spain should enjoy all the privileges and favours accorded, or to be accorded, to other nations by treaties, and especially by the treaty of Utrecht of 1713. These treaties continued in force till the wars of the French Revolution. And in 1814, by the second additional article of the treaty of Paris, the commercial relations between France and Spain were re-established on the footing on which they were in 1792. Therefore, the treaty of Utrecht of 1713 forms at present the basis of the commercial relations between France and Spain, and, consequently, Spanish subjects are now entitled, by treaty with France, as well as with England, to carry in their ships Russian merchandise without danger of confiscation. In the treaties between France and the United Provinces, the rule that the ships of the one contracting party should make free the goods of the enemies of the other contracting was contained at length in the treaty of commerce of Paris of 1662, to which I have already referred; in that of Nimeguen of 1678, in that of Ryswick of 1697, in that of Utrecht of 1713, in that of Versailles of 1739, and in the treaty of alliance of Fontainebleau of 1785.
In the treaties between Spain and the United Provinces, the rule that "free ships "should give freedom to goods," was first contained in that of Munster of 1648, as fully explained in the marine treaty of the Hague of 1650. The rule was stated at length in the treaty of the Hague of 1673, and the declaration of Brussels of 1676 explained that the subjects of either contracting party might carry on the coasting and colonial trade of the enemies of the other party. The marine treaty of 1650 was renewed word for word in the treaty of commerce of Utrecht of 1714; it continued in force till the wars of the French Revolution; and I believe is still referred to by the two nations as containing the principles of their commercial relations as established by treaty. In the treaties between Spain and Portugal, the rule "free ships, free goods," was contained in the

1115
treaty of Lisbon of 1668; for it declared that the relations between the two countries should be the same as those established between Spain and Great Britain respecting commerce and its immunities by the treaty of Madrid of 1667. The treaty of Lisbon was confirmed by that of Utrecht of 1715, by the accession of Portugal to the treaty of Paris of 1763, and by the treaty of the Pardo of 1778. The rule, "free ships, free goods," was also contained in the treaty of the Hague of 1691, between the United Provinces and Portugal, and continued in force till the wars of the French Revolution.
Sir, I believe that I have now referred to every, or almost every, treaty of peace or commerce which was concluded between the great maritime Powers of Western Europe, from 1654 to 1793. These treaties contain fifty-seven bilateral engagements, of these I can only find three—(namely, the treaty of peace of Breda, between France and England, in 1667, that of Ryswick, between the same Powers, in 1697, and the treaty of peace of Paris in 1784, between England and the United Provinces), which did not directly or indirectly contain the rule, that "free ships "should give freedom to goods." Every one of the remaining fifty-four bilateral engagements contained that rule, either expressly, or by expressly renewing and confirming treaties that contained it. Many of these engagements declared that the subjects of one contracting party, being a neutral, might carry on the coasting and colonial trade of the enemies of the other contracting party, being a belligerent. I have, therefore, shown that for the century and a quarter before the wars of the French Revolution, the all but invariable rule of amicable relations, as established by treaty between the great maritime Powers of Western Europe, was, that "free ships should give freedom to goods."
Sir, I must, however, admit that the theory of the great maritime Powers of Western Europe respecting the rights of neutrals on the ocean, as expressed in treaties of peace and commerce, was altogether at variance with their custom and usage, their practice and edicts during war. The reason is obvious. During peace men's minds are frequently calm and collected, reason and justice have some influence over them, and the tendency of treaties of peace and commerce is to conform to what ought to be the
1116
rules of international law. But in war, passion and hatred, and seeming necessity, and the fancied interest of the moment, are apt to determine the actions of combatants, and powerful belligerents relying on their might, oftentimes set at defiance the best established rules of war. if the maritime rights of neutrals during war were to be inferred from the custom and usage of the great maritime belligerents of Europe during the last two centuries, the inference must be that neutrals on the ocean have few or no special rights by which they can be distinguished from the subjects of belligerents. For, during that period, every one of the great maritime Powers of the West has repeatedly treated neutrals as subjects, applied to them (as I have already said), all the provisions of the Roman law with regard to trading with enemies, has confiscated not only enemies' goods on board neutral ships, but confiscated neutral ships for containing enemies' goods, and prohibited all neutral commerce with enemies.
To show how impossible it would be to deduce the maritime rights of neutrals from the custom and usage of the maritime belligerents of Western Europe, I will mention a few instances in which those powers have, during the two last centuries, flagrantly violated undoubted neutral rights. In 1652, the United Provinces threatened to treat as an enemy any foreigner who should carry any merchandise to England, and to punish him with the confiscation both of his ship and merchandise. In 1689, the United Provinces and England concluded a convention, in which they declared a blockade of all the ports of France, and prohibited neutrals from trading with France under the penalty of the confiscation both of their ships and goods. In 1543, 1584, 1681, 1692, France issued edicts, by which the ships of neutrals were to be confiscated for containing enemies' goods. The French edict of 1704 contained not only the well-known rule, "Que la robe "ennemi confisque Celle d'un ami," but also declared that merchandise of the growth or manufacture of the enemies of France, to whomsoever belonging, should be confiscated whenever found on board the ships of neutrals. The latter rule, but without the former one, was repeated in the edict of 1744, and continued in force till 1778, when a French edict established the rule, that "free ships should make free "goods," and that rule, I believe, at present forms part of the maritime law of

1117
France. The conduct of Spain towards neutrals during war has been the same as that of France. The Spanish regulations of 1702 and 1718 are said to have been founded upon the French edicts of 1681 and 1704, by which, as I have already said, neutral ships were confiscated for containing an enemy's goods, and merchandise of the growth or manufacture of an enemy, to whomsoever belonging, was confiscated on board neutral ships. These regulations were repealed by the Spanish edict of 1779, which adopted the rule that "free ships should make free goods." Nor has this country in periods of war shown greater respect than our neighbours for the rights of neutrals. By means of fictitious blockades we have repeatedly claimed the right of stopping the trade of neutrals with our enemies. For instance, in 1689, as I have already said, in company with Holland, we declared a blockade of all the coasts of France, without sending a single ship to enforce the blockade; and we prohibited neutrals from trading with France under the penalty of the confiscation both of their ships and their goods. This was the famous "cannon law," as our third William called it; for it had no other sanction, human or divine, save the force of a bullet. In 1756, we prohibited the Dutch from trading with the Colonies of France, and laid down the famous rule of war of that year, in virtue of which we claimed a right of prohibiting all neutral traffic with the Colonies, and on the coasts of an enemy. This rule was much contested by the United States and other powers, and was a fruitful source of contention between them and us. Again, in 1793, we concluded treaties with Spain, Prussia, Russia, and the Emperor of Germany, for the purpose of forbidding neutrals to trade with France. Lastly, in the war that followed the peace of Amiens, the combatants retaliated the blows which they aimed at each other by striking neutrals, and vied in disregarding neutral rights. According to Alison, the rage of belligerent Powers and the mutual violation of the law of nations could not go beyond our orders in council and the Berlin and Milan decrees.
Sir, in consequence of the conduct which was pursued towards neutrals by the maritime Powers of the west of Europe in their frequent wars, the Powers of the north of Europe, who were generally neutrals in those wars, repeatedly formed leagues to defend their rights as neutrals, and took up arms for that purpose. The first armed
1118
neutrality, as these leagues were termed, was a convention in 1693 between Sweden and Denmark, to resist by force of arms the execution of the convention between the United Provinces and England to put a stop to all neutral trade with France. This armed neutrality seems to have been successful, and the allies had to abandon their project. In the war of 1744, in consequence of our searching, detaining, and capturing enemies' property on board Prussian vessels, the King of Prussia refused to pay the interest of the Silesian loan until we had made reparation to his subjects by a payment of 20,000 l. The second and most celebrated armed neutrality was in 1780. Its objects were to resist our rule of war of 1756 with regard to trading with the Colonies or on the coasts of our enemies, and to establish the rule, that "free ships should make free goods." This armed neutrality consisted of conventions, which Russia concluded with Denmark, Sweden, Prussia, Austria, Portugal, and the two Sicilies, and to which Spain and Holland acceded. It attained its object, and in the treaties of peace which we concluded in 1783 with France and Spain, we recognised, as far as those two Powers were concerned, the main principles of the armed neutrality of 1780, and renewed the treaties of Utrecht, which contained the rule, "free ships, free goods." The third armed neutrality was concluded in 1794, between Denmark and Sweden, for the protection of their trade during the war of the French Revolution. It was not successful. The fourth armed neutrality, the principles of which were the same as those of the armed neutrality of 1780, was formed in 1800 by treaties which Russia concluded with Sweden, Denmark, and Prussia. This armed neutrality was speedily brought to an end by the murder of the Emperor of Russia. The stipulations of the armed neutrality of 1780 were confirmed by the treaty of commerce of St. Petersburg of 1783, between Russia and Denmark, which was renewed by the treaty of peace of Hanover of 1814. The stipulations of the armed neutrality of 1800 were contained in the treaty of commerce of St. Petersburg of 1801, between Russia and Sweden, which was prolonged by the treaty of peace of Frederichsham of 1809; and they are also to be found in the treaty of commerce of Copenhagen, which was concluded in 1818 between Denmark and Prussia. These treaties and leagues show how anxious the northern Powers have generally been to expunge

1119
the rule of confiscating enemies' goods on board neutral ships from the public law of Europe, and to substitute the rule, "free ships, free goods."
Sir, I must acknowledge, however, that the rule, "free ships, free goods," is not contained in some of the treaties between the Northern and Western powers, treaties to which the hon. and learned Gentleman has referred; for instance it is not contained in the treaty of commerce of Copenhagen, concluded in 1670 between Great Britain and Denmark, which was renewed by the treaty of Kiel of 1814; nor is it contained in the treaties between Great Britain and Sweden, signed at Upsal in 1654, at Westminster in 1656, at Whitehall in 1661, and all of which were confirmed by the treaty of Orebro of 1812. These treaties are still in force, and from various articles in them the inference may be fairly drawn that we are now entitled by treaty to confiscate enemies' goods on board neutral ships belonging to Denmark or Sweden. Nor was the rule "free ships, free goods," contained in any of our treaties with Russia; on the contrary, in the marine convention of St. Petersburg, of 1801, to which Sweden and Denmark acceded, the second article declared that enemies' goods should not be free on board neutral ships. On the other hand, the treaties which Russia concluded with Austria in 1785, with France in 1787, and with the Two Sicilies in the same year, contained the stipulations of the armed neutrality of 1780. The rule, "free ships, free goods," is also to be found in the treaties between Russia and Portugal of 1787 and 1798, the latter of which was renewed by the declaration of 1815. In the treaties between Denmark and France, the rule, "free ships, free goods," was contained at length in the treaty of Paris of 1663; also in the treaty of commerce of Copenhagen of 1742, which likewise declared that the ships of either state might carry on the coasting and colonial trade of the enemies of the other state. The treaty of Copenhagen was continued by the convention of Versailles of 1749, it was confirmed by the treaty of Copenhagen of 1813, and according to eminent French authorities, namely, D'Hauterive and Hautefeuille, is still in force between France and Denmark. Consequently, at present the Danes are entitled by treaty with France to carry Russian goods from one Russian port to another Russian port, the ports not being blockaded. The rule, "free
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ships, free goods," was also contained in the treaty of commerce of St. Ildefonso of 1792, between Denmark and Spain, which, I believe, was re-established by the treaty of peace of London of 1814; and also in the treaty of commerce of Nimeguen of 1679, between Sweden and the United Provinces, which was renewed by the treaty of Berlin of 1686. I believe that I have now referred to every or nearly every international engagement of the two last centuries between the Northern powers, and between them and the Western powers, which contained a stipulation with regard to the goods of an enemy on board the ship of a neutral. There were several that contained no stipulations on this subject; but those that did were about forty in number. Of them only nine (to every one of which England was a party) stipulated that the goods of an enemy in the ship of a friend should be lawful prize. The remaining thirty-one contained the rule, "free ships, free goods," and many of them contained the principles of the armed neutralities of 1780 and 1800.
Sir, I must observe that the armed neutrality of 1780 was an offspring of the American war of independence. The United States at once declared in favour of its principles, and adopted its provisions as rules of the public law of the New World. In 1783 the United States concluded at Paris a treaty of commerce with Sweden, which contained the rule, "free ships, free goods." This rule was renewed and confirmed by the treaty of commerce of Stockholm of 1816, and again by the treaty of friendship and commerce of Stockholm of 1827, and is still in force between the United States and Sweden. In 1785 the United States concluded with Prussia the treaty of the Hague, which also contained the rule, "free ships, free goods." This rule was temporarily suspended by the treaty of commerce of Berlin of 1799, but was restored to full vigour by the treaty of commerce of 1828, in which the United States and Prussia declared their desire to aid the cause of civilisation and humanity, and to concert with the other maritime powers stipulations which would guarantee a just protection and liberty to the commerce and navigation of neutrals. This treaty is still in force. In 1778, the United States concluded with France the treaty of friendship and commerce of Paris, the 25th article of which contains the stipulation, "free ships, free goods;" and the same stipulation is to be

1121
found in the convention of Paris of 1800. The treaty of friendship and commerce of the Hague of 1782, between the United States and the United Provinces, contained the principles of the armed neutrality of 1780; but in 1794 the United States temporarily disregarded those principles by concluding with England the treaty of friendship and commerce of London, which contained the principle, that the "goods of an enemy in the ship of a friend are lawful prize." However, in 1795, the United States concluded with Spain the treaty of friendship and navigation of San Lorenso-el-Real, the 12th article of which contained the rule, "free ships, free goods." It was renewed by the treaty of Washington of 1819; but with this reservation, that the rule should only be acted upon when all the belligerents assented to it; for example, the ships of the United States, being a neutral, were only to render free the goods of the enemy of Spain, being a belligerent, when the enemy of Spain also acted upon the rule "free ships, free goods."
Sir, you will remember, that about thirty years ago the South American colonies of Spain shook off the yoke of their mother country and became independent; they then entered into negotiations with the United States. In those negotiations the United States declared that the rule of public law, that the property of an enemy is liable to capture on board the vessels of a friend, has no foundation in natural right, and, though it be the established usage of nations, rests entirely on the abuse of force. For these reasons, the rule "free ships, free goods," is to be found, I believe, in every treaty which the United States has concluded with the States of South America; for instance, with Colombia in 1824, with the States of Central America in 1825, with Brazil in 1828, with Mexico in 1831, with Chili in 1832, with Bolivia in 1836, with Venezuela in the same year, and with Equador in 1843. I should observe that in almost all these treaties with the States of South America, the United States stipulated that the rule "free ships, free goods," should only be enforced when all the belligerents assented to it; for though they maintained in the strongest manner that the rule in question ought to be contained in the public law of nations, yet they asserted that if one belligerent were to act upon that rule, and the others were to
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adopt the contrary rule of confiscating enemies' goods on board neutral ships, the belligerent who acted upon the right rule would be unjustly damnified, and he who acted upon the wrong rule would be unjustly benefited. Therefore the United States stipulated, in the treaties in question, that the rule "free ships, free goods," should be subject to the limitation which I have mentioned, until the progress of civilisation and the consent of all civilised nations should establish it as an undoubted rule of public law. France has also concluded numerous treaties with the States of South America, in which it has generally been stipulated that France should not impose upon neutrals, in time of war, any other obligation than that of submitting to the laws of effective blockade. I am informed that this stipulation is contained in the treaty which France concluded with Brazil in 1826, with Bolivia in 1837, with Equador and Venezuela in 1843, with New Granada in 1846, with Guatemala in 1848, with Costa Rica in the same year, and with Hayti in 1852. Lastly, I should observe that the Ottoman Porte is at present bound by its capitulations of 1604 with France, of 1675 with England, of 1783 with Russia, and probably by those of 1784 with Austria, of 1740 with the Two Sicilies, of 1782 with Spain, of 1680 with Holland, of 1790 with Prussia, not to confiscate any goods, except contraband of war, on board the ships of the nations which I have just mentioned.
I have now enumerated about 130 international engagements between the chief powers of the civilised world; they are all, or nearly all, the international engagements between those Powers during the last two centuries which contain provisions with regard to the treatment of enemies' goods on board neutral ships. There are many which contain no provision on that subject; but of the 130 that do, only eleven (to ten of which England was a party) contain the rule of the hon. and learned Gentleman that the goods of an enemy in the ship of a friend are lawful prize; the remaining 119 contain the rule "free ships, free goods." I have, therefore, shown, that during the century and a quarter which preceded the wars of the French revolution, the all but invariable rule of amicable intercourse as established by treaties between this country and the great maritime Powers of western Europe, and the invariable rule between France and Spain and the United

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Provinces and Portugal was "free ships, free goods." I have also shown, that the general rule of amicable intercourse, as established by treaty between the northern Powers, between the northern and western Powers (with the exception of England), between the United States and the Old and the New World, between France and the New World, and between the Ottoman Porte and the great Powers of Europe, was "free ships, free goods." I am therefore entitled to assert that, though it has been the custom and usage of nations to act upon the rule of capturing enemies' goods on board neutral ships, yet that custom and usage have been and still are held by the great majority of civilised nations to be at variance with correct notions of what is right and just.
Sir, I must remark, that it is said that the fact that so many treaties contain the rule "free ships, free goods," and so few the rule of confiscating enemies' goods on board neutral ships, proves that the latter rule was the general rule of public law; because, to set it aside, specific international contracts were required, and such contracts would not have been required if "free ships, free goods," had been the rule of international law. But the friends of the extension of neutral rights do not deny that "to seize the goods of an enemy in the ship of a friend" was the general rule of the public law of England and of many other nations; they merely assert that it ought not to be a rule of the international law of civilised nations, and that it is contrary to the opinions of the majority of civilised nations. In support of this assertion they quote the treaties in question, and affirm that by means of treaties many reforms have been gradually brought about in public law, many a barbarous usage abolished, and many a sound principle established. In fact, the earlier treaties contain numerous stipulations which are omitted from modern treaties, not because the stipulations have become obsolete, but because they have become acknowledged rules of international law among civilised nations; and, therefore, are of universal and eternal obligation, irrespective of treaties. Eminent publicists assert that the positive law of nations, or rather what ought to be the law of nations, may be inferred from treaties, and that an almost perpetual succession of treaties establishing a particular rule, will go very far towards proving what is, or rather what ought to be, the public law
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upon a disputed point. For it must be admitted that when a stipulation is to be found in very many treaties, it affords primâ facie, though not conclusive, evidence, that experience has shown that the stipulation is a good and useful one for very many nations; therefore it is probably a good and useful one for most nations; and certainly that ought to be a rule of public law which is good and useful for most nations, and receives their assent.
Sir, an eminent modern writer on jurisprudence, Mr. Austin, in defining international law, states that—"The rule regarding the conduct of sovereign States, considered as related to each other, is termed law, by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions, by fear on the part of sovereigns of provoking general hostility, and incurring its probable evils in case they should violate maxims generally received and respected." if this be a correct definition of international law, or, rather, of what ought to be international law, it follows that the rule "free ships, free goods," ought to be a rule of international law; or, at least, it follows that the position contained in the resolution of the hon. and learned Gentleman, namely, that a belligerent State ought to have the right of making prize of the goods of an enemy in the ship of a friend, is not indisputably true; and if it be not indisputably true, the House ought not, as I have already said, by agreeing to the Motion of the hon. and learned Gentleman, to pledge the honour of this country to uphold that position for ever.
Sir, I must observe that in the treaties to which I have referred, with the exception of those which contained the principles of the armed neutrality of 1780 and of 1800, the rule "free ships, free goods," was accompanied by the rule "enemies' ships, enemies' goods," in virtue of which the goods of neutrals were liable to confiscation on board enemies' ship. This rule was a convenient one for belligerents. It saved them the trouble of determining the ownership of any property on board enemies' ship. And, therefore, those Powers who agreed to the rule "free ships, free goods," generally stipulated

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that neutrals should pay for the lenity of that rule by the confiscation of their property when found on board enemies' ships. But between the two rules of "free ships, free goods," and enemies' ships, enemies' goods," there is no logical connection; the only connection between them is the jingling of a verbal antithesis. Now, every writer, ancient and modern, on international law has condemned the rule "enemies' ships, enemies' goods," as contrary to the principles of public law. It was rejected by the Consolato del Mare; Grotius expressly condemned it; so did Bynkershoek, Heineccius, and Vattel; so have Hübner, Klüber, de Rayneval, and Hautefeuille. As there is no logical connection between the rule "free ships, free goods," and the rule "enemies' ships, enemies' goods," it follows that we are under no logical nor moral obligation to adopt the latter rule because we have held it to be right, proper, and expedient, at least for the present, to adopt the rule "free ships, free goods."
Sir, I said that, for the sake of argument with the hon. Gentleman the Member for Bridport, who impugned the policy of the Government in adopting for the present the rule "free ships, free goods," I would assume that the principle, that "the "goods of an enemy in the ship of a "friend are lawful prize," is a sound one; and that then I would prove that in existing circumstances it would be politic and expedient for this country to waive for the present the belligerent right of confiscating the goods of Russian subjects on board neutral ships. To do so, I must assume what I think every one must admit, namely, that it is all important for the successful prosecution of the war now waging with Russia, that France and England should cordially co-operate by sea as well as by land. It is self-evident that cordial co-operation could not be attained if one Power were to act upon one rule of maritime war, and the other upon an opposite rule. For complete harmony of action, it is indispensable that both Powers should adopt the same rules of maritime war. But, as I have already shown, according to the international laws of France and England, their rules of maritime war were different. The French were bound by their law of nations, and by numerous treaties, to respect enemies' goods on board neutral ships; but the French were entitled by their law of nations to confis-
1126
cafe the goods of neutrals on board enemies' ships. On the other hand, we were bound by our law of nations to respect the goods of neutrals on board enemies' ships, but we were entitled to confiscate enemies' goods on board neutral ships. It is evident, therefore, that with regard to neutrals the French rules of maritime war clashed with our rules of maritime war. It is easy to see that if each Power had insisted upon adhering to its own rules of maritime war, it would have been impossible for the cruisers of the two Powers to act cordially in concert. For instance, suppose that two cruisers—one an English, the other a French—had been sailing together in the Baltic, and that each had received instructions to act according to the national rules of reprisal—the French according to the French rules, the English according to the English rules. Suppose the two cruisers had met a neutral ship, carrying from and to a non-block-aded port a cargo of goods and merchandise of the growth or manufacture of Russia, but not contraband of war; both cruisers would have stopped the ship; their respective officers would have visited it; both would in the first instance have asked the same questions; both would have ascertained the nationality of the ship; both would then have inquired whether there was any contraband of war on board; finding none, the French officer would then have said to the master of the ship, "By the French law of nations, and also in virtue of a treaty between France "and your Sovereign, I have nothing "more to do on board your ship, and I wish you, un bon voyage." Not so the English officer. After his French comrade had taken leave, he would have carefully and minutely searched the ship; he would have found that it was laden with goods and merchandise of the growth and manufacture of Russia; he would then have inquired to whom the property belonged, bow it had been acquired, and on what terms; and if he suspected that any portion of it belonged to a Russian subject, if he fancied that the purchase of it from a Russian subject had not been completed according to the strict and technical rules of English law, the English officer would have been bound to detain the neutral ship, would have been bound to take it to an English port, to be adjudicated upon by English judges according to English law; then, perhaps, the cargo

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would have been condemned, and the English officer and his crew would have acquired considerable wealth by the confiscation of property which the French officer and his crew had refused to touch. Thus, the French cruiser would have permitted the ships of every neutral state—those of Denmark, of Sweden, of Prussia, of the United States, of Spain, of the South American republics, &c.—to pass free, though full of valuable goods belonging to Russian subjects; whilst the English cruiser, sailing in company with the French one, would have reaped a rich harvest of prize and booty by detaining every one of those ships, except such as belonged to Spain, which we are bound by treaty to respect. On the other hand, I should observe that if a Russian ship had been captured by the French cruiser, the French would have been entitled, by their law of nations, to confiscate all property on board the Russian ship, to whomsoever the property might have belonged, whether to subjects of Russia, of Denmark, of Sweden, of Prussia, of the United States, of Spain, &c.; but had our cruiser captured a Russian ship, we should have been bound, by our law of nations, to restore all property of neutrals on board that ship, not being contraband of war, to their owners, provided they were not Spanish subjects. Therefore, it appears to me self-evident that if France and England had insisted upon adhering to their respective codes of maritime war, the difference in their rules of taking prize and booty would have sown the seeds of dissension, jealousy, and between the crews of their respective fleets, and rendered cordial co-operation in maritime war impossible. Neutral states would likewise have had good reason to complain, if the cruisers of England and France, sailing in company, had acted upon opposite rules of maritime war; for the consequence would have been to inflict upon neutrals the penalties of both the French and English codes, without granting them the immunities of either. For instance, neutrals have frequently considered that the severity of the English rule of confiscating enemies' goods on board neutral ships, was in some degree mitigated by the lenity of the English rule of respecting neutral goods found on board enemies' ships. On the other hand, neutrals have held that the lenity of the French rule, "free ships, free goods," was paid for, to a certain extent, by the se-
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verity of the French rule, "enemies' ships, enemies' goods." Now, if a French and an English cruiser, sailing in company, had acted upon the rules of their respective codes of maritime war, the French cruiser would have confiscated neutral property on board Russian ships, and the English cruiser would have confiscated Russian property board neutral ships; and between the two the unfortunate neutral would, as have already said, have suffered the penalties of both codes of maritime war, without enjoying the immunities of either; and neutral states would have had grounds of complaint at least as valid as those which gave birth to the celebrated armed neutrality of 1780.
Sir, it was of paramount importance that the French and English rules of maritime war should, if possible, be assimilated, at least for the present. There were three modes by which this result might have been accomplished. Either France might have yielded to England, and adopted the English rules of maritime war; or England might have yielded to France, and adopted the French rules of maritime war; or both powers might have made, as they did make, mutual concessions. Now neither power could have yielded entirely to the other, and adopted the other's rules of maritime war, without doing wrong; for though both powers were entitled to waive belligerent rights, neither power could with honour have disregarded obligations. For instance, France could have waived her right to confiscate neutral property on board the ships of her enemy; and England could have waived her right to confiscate the property of her enemy on board neutral vessels; but France could not with honour have disregarded the obligation imposed upon her by numerous treaties, as well as by her law of nations, of respecting the property of her enemy on board neutral ships; nor could England have set aside the obligation imposed upon her by her law of nations, of respecting neutral property on board her enemies' ships. Therefore, the only honourable compromise which France, and England could have made with regard to their rules of maritime war, must have been based upon a mutual waiver of rights and a strict fulfilment of obligations. This is the compromise which was made. France has waived her right of confiscating neutral property on board Russian ships; England has waived her right of confiscating Russian property on board neutral

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ships. The rules of maritime war of the two nations are now the same. We can cordially act together against the common enemy, and neutral states have no grounds of complaint against us. Russia has imitated our example. May that example be followed by future belligerents in future wars! For if the precedent set by this war should lead to the abolition of private war on the ocean, and to the establishment of the maritime rights of neutrals on the firm and solid basis of reason and justice, whatever other results this war may bring forth, it would be noted for these results in the history of nations—as a step in civilisation, and as a benefit to the human race.
I have shown, on the assumption that a belligerent state ought to have the right of confiscating enemies' property on board a neutral ship, that it was right and proper for this country to waive, for the present, that belligerent right. I have likewise shown that the opinions current among the majority of civilised nations arc in favour of the rule "free ships, free goods." Therefore, I infer that reasonable doubt may be entertained of the troth of the proposition contained in the resolution of the hon. and learned gentleman; and, consequently, that the House ought not, by agreeing to the Motion of the hon. and learned Gentleman, to pledge the honour of the country to uphold for ever the principle that the "goods of an "enemy in the ship of a friend are law- "ful prize."
Lastly, Sir, I will assume, for the sake of argument, that the position contained in the Resolution of the learned Gentleman, is indisputably true. Nevertheless, I maintain that the House ought not to assent to the Resolution of the hon. and learned Gentleman, unless he can show that some great positive and practical good would result from the House agreeing to it. For we are not a body of publicists, assembled for the purpose of discussing and determining abstract questions of international law, but a body of practical men, whose duty it is to act or to determine how the Government of the country should act in existing circumstances. Our resolutions should therefore have for their end and aim immediate action; and, consequently, it would be unwise and inexpedient to limit our freedom of action, or that of our successors, by laying down abstract rules of action without some well-proven necessity for so doing. I ask, what great positive and practical good does the
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hon. and learned Gentleman expect to obtain from the House agreeing to his Resolution? Does he expect by means of it to compel future Governments, in future wars, to insist upon confiscating enemies' goods on board neutral ships? But if the circumstances of future wars should be the same as those of the present war, future Governments should act as we have acted; for I have shown that we have acted rightly. Therefore, if his Resolution were to prevent them from following our example in similar circumstances, it would be mischievous in the extreme. On the other hand, if in a future war it should be right and proper to insist upon every belligerent right appertaining to us by the law of nations, then the Resolution of the learned Gentleman is not wanted to enable us to do so; because we have not renounced nor surrendered any belligerent right appertaining to us by the law of nations. For in the declaration of the 28th March last, in which Her Majesty was graciously pleased. by the advice of her responsible Ministers, to declare that "to preserve the commerce of neutrals from all unnecessary obstruction, she was willing, for the present, to waive a part of the belligerent rights appertaining to her by the law of nations," Her Majesty did not renounce nor surrender any one of her belligerent rights. For I need hardly assure the hon. and learned Gentleman that to "waive for the present a right," and to surrender it, are two quite distinct things. But the hon. and learned Gentleman is not content with Her Majesty's declaration to neutral States. He asks this House to make a declaration to neutral States, in a tone and spirit very different from that of March last, and, in my opinion, in a tone and spirit which are very objectionable. For what does the hon. and learned Gentleman ask the representatives of the people of this country to declare to neutral States? He asks them to say, in so many words—"The peculiar circumstances of this war have induced us reluctantly to relax the principle that the goods of an enemy in the ship of a friend are lawful prize; the force of events has compelled us, against our will, to waive for the present our belligerent right of confiscating Russian goods on board your ships; yet, be assured, we have no intention to make any permanent concession to your wishes, or in any way to "acknowledge the justice of your demands; "on the contrary, we maintain that the

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right to search for and seize the goods of our enemies on board your ships, is a right so clearly incorporated with our law of nations, and so interwoven with our maritime renown, that to renounce or surrender it would be inconsistent with the security and honour of our country; therefore we are determined, whenever circumstances will permit, and events are propitious, rigorously to en- force that right, in spite of your remonstrances and in defiance of your pro- tests."
Sir, I doubt whether such language would be either politic or dignified. In dealing with other States, we ought to make up our minds to what is right and just to do, and do it; but we should carefully abstain from threats and boasts of what we will do. To do one thing one day, and to vapour, and to fume, and to fret, and to swear that we will do quite another thing another day, would be conduct unworthy of a mighty nation. Such conduct would best become one of Falstaff's ragged regiment; and with every respect for the hon. and learned Gentleman, I must say, when I listened to the terms of his Resolution, I was irresistibly reminded of the language of ancient Pistol, who, whilst eating the leek under the influence of Fluellen's cudgel, swore "By this leek, I will most horribly revenge; I eat, and eat, and swear." "Free ships, free goods," is the leek of the hon. and learned Gentleman, the eating of which he would swear most horribly to revenge in all future wars by the merciless confiscation of the goods of every enemy in the ship of every friend.
Sir, I am convinced that the House will never consent to become co-jurors with the hon. and learned Gentleman by agreeing to his Motion. For I have shown that his Resolution contains a position condemned by the majority of civilised nations—one of doubtful truth—to the eternal maintenance of which this House ought not to pledge the honour of this country. I have also shown that if the Resolution of the hon. and learned Gentleman were carried, it might be mischievous in the extreme, it could never be of any use, and would be most impolitic and undignified. I therefore assert that the House ought not even to entertain the Motion of the hon. and learned Gentleman; I ask the House not to entertain it: I move that the hon. and learned Gentleman's Motion be not put, and therefore, according to the forms of this House, I move the previous question.
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Previous Question proposed, "That that Question be now put."
MR. ROBERT PHILLIMOREsaid, he trusted that the House would listen to him for a few moments while he expressed for the first time his opinion on a subject interesting not only to that House, but to the country at large, and with which his professional studies might be supposed to have made him in some degree acquainted. He could not assent to many of the propositions which the right hon. Gentleman (Sir W. Molesworth) had announced to the House, but he was happy to say that he entirely concurred in the wisdom and expediency of the course pursued by the Government—under the very peculiar circumstances of the present war—in waving the undoubted belligerent rights of the Crown, as well as in all that had fallen from the right hon. Gentleman as to the necessity of acting in harmony with our ally, France, and in making for that object mutual concessions. He was, however, at a loss to reconcile the language of Her Majesty's declaration of March last with a great part of the speech of the right hon. Gentleman. In that declaration Her Majesty was made to say, in very temperate and appropriate terms, that she was willing for the present to wave part of the belligerent rights appertaining to her by the law of nations; but the whole tenor of the right hon. Gentleman's argument was, that those rights were such as the Crown ought never to have exercised; and that, instead of waving belligerent rights, she ought to have apologised for the wrongs which, as belligerent, this country had formerly perpetrated; and when the right hon. Gentleman taunted his (Mr. R. Phillimore's) hon. relative the Member for Leominster, who had brought forward this Motion in a manner worthy of himself, and of the cause which he advocated, with swaggering, and eating ancient Pistol's leek, the right hon. Gentleman ought to have recollected that he had no inconsiderable leek of his own to devour, if he had anything to do with the drawing up of Her Majesty's declaration. Two things could not be conceived more inconsistent than Her Majesty's declaration and the right hon. Gentleman's speech. If, as it was insinuated, his hon. relative had wandered out of the way, he had the consolation of knowing that he had wandered out of the way with such men as Mansfield, Stowell, Grenville, and other distinguished jurists and statesmen,

1133
not of England, but of Europe, not of one hemisphere, but of both. It might be that all the doctrines laid clown by Lord Stowell in the last war were wholly unworthy of adoption by the right hon. Gentleman, who to-night had expressed the opinions of the Government; but this was certain, that those doctrines had given the law to Europe and America. So far from American jurists expressing the opinions put into their mouths by the right hon. Gentleman, no one could study their opinions without being aware that they fully and rigorously maintained all the doctrines laid down by Lord Stowell. The Americans, who suffered the most from their application, were the first to acknowledge their wisdom, and the foremost act of the American Republic was directly in opposition to what had been stated that night by the right hon. Gentleman. The principles laid down and expounded in the Admiralty Courts of England had been adopted by all the North American Courts of International Law—they were maintained by Wheaton, by Kent, by Storey. One proposition of the right hon. Gentleman he would directly deny—namely, that they were to look to treaties for the law of nations. Even the right hon. Gentleman himself did not abide by his principle; for when the treaties sanctioned the principle, "enemy's shins, enemy's goods," he rejected their authority, and yet, in almost every treaty which the right hon. Gentleman had cited, this proposition was included, though it was a fact not very prominently put forward by the right hon. Gentleman. The converse of his proposition had been held by every writer from Grotius downwards. That was the very proposition which the King of Prussia endeavoured to enforce on this kingdom in 1747, and was declared by Sir G. Lee and Lord Mansfield to be contrary to both ancient and modern practice, the general rule being strongly proved by the exceptions made in the treaties themselves. The House had, therefore, to decide whether, in respect to the exposition of international law, it would prefer the authority of the right hon. Gentleman or that of the great jurists whom he (Mr. R. Phillimore) had mentioned. The right hon. Gentleman's argument, if carried to its legitimate conclusion, would prevent this country stopping neutral vessels from entering even blockaded ports. The reluctance with which the present war had been
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entered upon, and the vigour and activity displayed in its conduct when once it began, reflected the highest credit on the Government of this country; but the fact was, that, in this new arrangement made with respect to prizes, the Government stood upon no principle, but rather upon a relaxation of a principle—the relaxation of the law of nations. He should not have risen, but that he found it impossible to concur in the doctrines laid down by the right hon. Baronet. It might be owing to his unenlightened mind. ["Hear, hear!"] The right hon. Gentleman cheered. He had not, he confessed, the advantage of being illuminated by those great modern lights which had, no doubt, shed their lustre on the mind of the right hon. Gentleman, He had contented himself with groping in the dark with those masters of antiquity from whose pages he was not ashamed to acknowledge he had borrowed all that he knew upon the subject. It might appear a little strange that the doctrine which the right hon. Gentleman had maintained on behalf of the Liberal principles which he was known to represent was precisely the doctrine which the Autocrat of All the Russias had insisted upon in 1780. Now, he (Mr. R. Phillimore) might at least be allowed to say that the authority of Lord Stowell, Lord Mansfield, and Lord Grenville, was as good as that of the Emperor of Russia upon a question of international jurisprudence and maritime law. In dealing with this question there was a point which the right bon. Baronet had not adverted to—namely, that the armed neutrality in 1780 was at a period of England's utmost peril and greatest weakness. All her enemies took the opportunity of wrest, his from her what they conceived to be the mainstay of her maritime renown. He could not imagine that they were influenced by any abstract love of justice, because, as Lord Stowell had well observed, they all remembered to forget their own principles, when their own interests were concerned in its application. Before the year 1800 there was scarcely one of those who constituted the armed neutrality of 1780 who had not abandoned the principle of that anti-English league. And why? Because they found that it was utterly inconsistent with belligerent rights. He had listened to the right hon. Baronet with most unfeigned astonishment when he said that by virtue of treaties Spain and other countries had a right to carry any goods

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belonging to the belligerent Powers. [Sir W. MOLESWORTH said, he had only alluded to Spain.] He would take his stand there, then, and would contend that there was not any treaty now existing between Spain and this country which would enable her to carry enemy's goods free from seizure and confiscation. But, after all, the principles of the law of nations were not founded upon treaties, which might be entered into—and, indeed, in matters of this kind generally were entered into—for the purpose of establishing an exception, for some particular reason of State policy, to the general law. They were founded upon reason, upon equity, and upon convenience, and were fortified by authorities. When the right hon. Baronet referred, in a sneering manner, to the law of nations as being founded merely upon municipal regulations of the Roman law relating to the commerce of ancient Rome, he begged to say that the right hon. Gentleman had fallen into a very great mistake, and one which the merest tyro in the Institutes of Justinian and the elements of international law would have been ashamed to make. The Roman law was, in one sense, no doubt, the foundation of international jurisprudence, inasmuch as it contained those maxims of written reason and natural equity which had been sanctioned throughout the whole civilised globe. The law of nations was referred to for the purpose of showing that there were, both by reason, by usage, and by habit, rules observed between civilised nations which it was not competent for any one nation to repeal without the assent of other nations. If the doctrine were to prevail, which he had heard advanced that night, that each and every nation had an international law of its own, which it was competent for each and every such nation to repeal, nothing would be more perilous to the peace and well-being of society. The wildest Republican had never maintained a doctrine more certain of producing universal war than such a doctrine as had been broached that night. He was surprised that the right hon. Gentleman, with his acute mind and varied information, had not perceived the great value which ought to be ascribed to the recognised and acknowledged power of these laws in binding together the various nations of the globe. The right hon. Gentleman, at the end of his speech, referred, in a slighting manner, to the names of Grotius, Puffendorff, and other jurists,
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concerning whom Sir James Mackintosh—no illiberal, uneducated bigot, he (Mr. R. Phillimore) thought—had said that these well-matured opinions of international jurists of all countries were valuable beyond all price, because they laid down the maxims and usages agreed to by all the nations of Europe, and to which, when one nation was at issue with another, both might with confidence refer. It was not that their authority was incontrovertible, but it was because their impartiality could never be questioned. He remembered that the same high authority had truly said, that no man ever questioned their authority who had not previously made up his mind to violate the rules they had had down. He had ventured to trespass thus far upon the attention of the House, because it seemed to him of immense importance that it should not go forth to the world that Great Britain had abandoned as untenable the well-established principles of international law—to wave her unquestionable rights as belligerent was a very different course; that course the Government had deliberately adopted, and, in conclusion, he would suggest to his hon. relative the inexpediency of pressing his Motion to a division. He thought his hon. relative might be content with the statement contained in the fourth declaration of Her Majesty, dated 28th of March, 1854, that while it was impossible for Her Majesty to forego the exercise of Her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, and that She must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which might be established with an adequate force against the enemy's forts, harbours, or coasts, yet Her Majesty would wave the right of seizing enemy's property taken on board a neutral vessel, unless it were contraband of war.
MR. BOWYERsaid, after the lengthened argument of the right hon. Baronet, he ought, perhaps, not to intrude upon the attention of the House at all; as it was, he would do so very shortly, because such an important subject, he thought, ought to be fully discussed, in order that the practice of nations with regard to maritime war might be adapted to the progress of civilisation and the present position of Europe. The authority of American writers had been referred to in this debate; but, rightly construed, he did not think they supported

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the arguments of the hon. and learned Member for Leominster (Mr. J. G. Phillimore.) Mr. Wheaton said that, whatever might be the true principles of international law, it was certain that the usage of nations was to subject the enemy's goods in neutral vessels to capture. The terms of this proposition showed that he was not satisfied this was the true principle of international law, but merely stated the existing usage. In Chancellor Kent's Commentaries there was a remarkable passage bearing on the same point. Kent asserted the principle that the fact of a vessel being neutral did not save the enemy's goods; but he added with naïveté, that America had not pushed this doctrine so far as it had been pushed by the English Courts of Admiralty, and that probably when the maritime power of America became greater, she would be willing to assert to a greater, extent the doctrine that enemy's goods might be taken in neutral vessels. This showed that in the opinion of Kent this practice did not rest on any principle of natural right, but upon national usage. Now, national usage could not properly be called a law, for it was binding only upon the nations that followed it; and if any nation gave due notice that it did not mean to follow this usage, no blame would attach to it. If they were to follow national usage it would land them in countless absurdities and crimes. There was a time when the usage of war made prisoners of war slaves; there was a time when it justified the putting of prisoners of war to death. They must not in these times follow only customs which had been established, but must see what was just and what the present position of the world and the interests of civilisation dictated. As to this argument, that it had been the custom among nations for all army which had entered an enemy's country, to subsist by means of contributions, he would observe that the principle on which that custom rested was peculiar; it was, that when a country was occupied by the army of an enemy a belligerent sovereignty was acquired over it, and that the army had the same right to be maintained by contributions that the sovereign had to be maintained by taxes. Moreover, although this practice had been followed by Napoleon, it had never been approved by this country. Our own army was always maintained out of our own resources, and that was the rule which ought to be followed by all civilised
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nations. Wheaton showed that there was a great preponderance of authority in modern treaties in favour of the maxim, that free ships made free goods. He (Mr. Bowyer) admitted that these treaties were contrary to the usage of nations, but what he contended was, that in proportion as civilisation increased, and the relations of nations became more intimate, would the rights of neutrals be respected. He contended that all modern treaties, from the Treaty of Utrecht to the Treaties of Aix-la-Chapelle and Paris, had proceeded upon the principle of increasing the rights of neutrals. In the last war, indeed, this country had taken a retrograde step, but he rejoiced to say that in the present war Her Majesty's Government had acted upon more enlightened principles—had, in connection with the Emperor of the French, extended the rights of neutrals—and had so begun, he firmly believed, a new era in the law of nations. But they must go still further. By the present state of things, neutral nations were allowed to trade with belligerents, while our own ships were not so allowed to trade. This enabled neutral ships to do what they would not allow the ships of this country to do. It seemed to him that this was acting upon the absurd principle of injuring themselves in order to benefit neutrals.
Notice taken, that forty Members were not present; House counted; and forty Members not being present, the House was adjourned at a quarter before Ten o'clock.

MINUTES.
PUBLIC BILLS.—1aIndemnity; Insurance on Lives (Abatement of Income Tax) Continuance; Linen, &c., Manufactures (Ireland); Poor Law Board Continuance; Public Libraries; Merchant Shipping; Turnpike Acts Continuance (Ireland); Union Charges Continuance.
2a Cruelty to Animals; Ecclesiastical Courts; Vice Admiralty Court (Mauritius).
Reported—Customs Duties (Sugar and Spirits); Excise Duties (Sugar); Warwick Assizes.
3a Incumbered Estates (West Indies).

CRUELTY TO ANIMALS BILL.
Order of the Day for the Second Reading read.
LORD ST. LEONARDS,in moving the second reading of this Bill, said, that he had no intention of entering into a lengthened discussion on the subject, inasmuch as the present measure was merely to correct an omission in a former Bill, relative to which he had presented three very important petitions the other evening. The omission to which he had alluded, and which the clause he proposed to add would remedy, had reference to carts drawn by dogs; and the purport of the new Bill was to extend to all parts of the country the clauses of the Act which had been passed to prevent carts drawn by dogs being used either in London or
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within a distance of fifteen miles of London, and to make the provisions of that Bill apply to all parts of the country without exception. Everybody who took the trouble to consider this subject knew very well the nuisance and the danger of these vehicles, and could probably bear testimony to the obstruction, danger, and, oftentimes, the loss of life to which they led. The treatment to which the dogs were subjected very often brought on a species of madness in them, and horses were constantly startled and frightened by the manner in which these dog-carts were driven in crowded thoroughfares.
Moved, That the Bill be now read 2a.
THE EARL OF EGLINTONentirely differed from the noble and learned Lord who had moved the second reading of the present Bill, and thought it most desirable that we should avoid, as much as possible, over-legislation in these matters; and he could not but believe that to prohibit the using dogs for a purpose in itself altogether unobjectionable would amount to a case of over-legislation, which he trusted their Lordships were not prepared to sanction. He considered that it would be very unfair to prevent poor persons making use of their clogs to assist them in their work, inasmuch as he believed that their dogs by no means objected to rendering such assistance. As to the objection raised to the probability of dogs becoming mad from being driven in these carts, he looked upon that as perfectly visionary and unstable; and as to horses being frightened by these carts, such a notion was equally insupportable, inasmuch as horses would be frightened at almost anything at times, and it was impossible to legislate so as to please their humours. He had a horse himself once which never would pass a wheelbarrow without shying; but this was no reason why the use of wheelbarrows should be prohibited. He thought such a provision as that now sought to be introduced in the Cruelty to Animals Bill was puerile and unnecessary, and he should therefore move the rejection of the measure.
Amendment moved, to leave out "now," and insert, "this day three months."
LORD BROUGHAMsaid, he should support the Bill. He thought that dogs were not intended by nature to be made use of for purposes of draught; and having applied restrictions in these respects to London and a circuit round it of fifteen

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miles, he considered that it would be very unjust to refuse to make the same enactments applicable generally. He was as much opposed to over-legislation as any of their Lordships could be; but he could not regard the present measure as in any way deserving such title.
THE MARQUESS OF WESTMINSTERsaid, the subject of these dog-carts was one of considerable interest in many parts of the country, and one which really required grave and considerate attention. He considered that the restrictions in reference to London and the circuit of fifteen miles round it ought to be extended to all parts of the country, and he saw no reason why it should not be so applied. Every one knew that the natural position of a dog was to stand on its toes, and that to put a collar on its neck, harness on its back, and weight upon its loins, was virtually forcing it from its natural position into one which it could only be educated to, and that with much suffering and pain. He had received representations from various parts of the country pointing out the cruelty of the practice, and the demoralising effects that attended it. One instance was given in which a man ripped up a dog, and gave its entrails to two other dogs to eat. These dog-carts were, besides, the cause of numerous accidents from frightening horses, and there was scarcely a person accustomed to ride out with his family who did not experience the dangers that arose from this source. The nuisance had already been put down by law in one part of the country, and he did not see why the prohibition should not be extended to other parts, where the evil was quite as strongly felt. He hoped, therefore, that their Lordships would consent to the second reading of the Bill.
LORD HATHERTONmade a few observations which were inaudible.
THE EARL OF MALMESBURY,for his part, could not understand the justice of the first clause of the Bill, by which it was provided that the owner of an animal impounded should be liable to pay double the value of the food and water with which it might be supplied. With respect to the second clause, which prohibited the use of dogs as animals of draught, their Lordships must take care that, in putting an end to cruelty to dogs, they were not inflicting injury of another kind. He was able to state to the House, as the result of inquiries which he had instituted, that in the two counties of Sussex and Hamp-
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shire there were 1,500 people at least who were earning a livelihood at this moment by driving dogs in these carts, the use of which it was now proposed to prohibit. Every one of those 1,500 persons, if he continued to gain his livelihood in this way, was to be liable by this clause to be imprisoned for three calendar months—a punishment, which, he must say, was greatly disproportioned to the moral turpitude of the offence against which it was to be directed. With respect to the question of cruelty, he must remind the House that if the owners of dogs used for purposes of draught treated them cruelly, they were liable to punishment in the present state of the law; and he really wished his noble and learned Friend seriously to consider whether, in allowing this clause to pass, they would not be acting very cruelly towards those whose means of subsistence would be so seriously affected by its operation.
THE EARL OF GALLOWAYbelieved that these animals were subjected to very great suffering, and would therefore vote for the second reading of the Bill.
THE DUKE OF ARGYLLdenied the soundness of the argument which the noble Earl opposite had deduced from the number of persons who were now using dogs for purposes of draught in the two counties to which he had alluded. Supposing the fact to be as the noble Earl had stated it, he had no doubt whatever that at the time when these dog-carts were permitted to be used in the metropolis there were fully as many as 1,500 persons using them. Did they give those persons compensation when the use of dog-carts was prohibited? If they did not give them compensation, and if they committed an act of injustice then, it might fairly be argued that they might commit an act of injustice now. He did not admit, however, that any injustice was done to those persons at that time, and he did not, therefore, concede that any injustice would be done now.
EARL GRANVILLEsaid, he had patiently listened to all that had been urged in favour of the second clause of the Bill. The burden of proof clearly lay with those who held that the clause should be enacted, but he must say that in his opinion they had entirely failed in that proof. The case was argued before their Lordships, on the ground that the practice of using dogcarts was attended with cruelty, that it was dangerous to other parties, and that

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it was demoralising to those engaged in it. It was said the dog was not a beast of draught. Now, it appeared to him that the very Act they wished to pass, proved that he was a beast of draught. If he was able to draw a cart suited to his strength, he was surely to that extent a beast of draught, and there was one advantage that the dog had over the horse—he had not a rusty bit in his mouth. The noble Marquess behind him spoke of the danger to passers by. There was no doubt, whatever, that there might occasionally be danger from these animals; but, if they were to legislate on everything that caused danger, and on everything that frightened a horse, they might begin with railway trains, and go on till they included wheelbarrows. He had seen a bird flying out of a hedge have a very bad effect on a horse. Then, as to the demoralising effect, he did not think that proved either. His noble Friend said, the practice was demoralising to the performers, but it was not very clear whether he meant to the men or the dogs. He referred to a case of great cruelty which had occurred; but that only proved that the dogs were entirely demoralised, because, as his noble Friend who appeared to be so well up in the natural history of the case said, they proceeded to do that which no dog in a more innocent condition would have been guilty of. As dog-carts were the cheapest mode of conveyance, they were used by the poorest class; and, in reply to what had been said of the respectability of that class, he could only say that if they went into the moral statistics as to costermongers who drove ponies and donkey carts, they would, no doubt, be found to be less respectable than those who drove their carriages and pair; but, if their Lordships should deprive persons of their means of obtaining a living, because they were less respectable than the class above them, they would be adopting a very dangerous principle. Under these circumstances, he did not consider that the case against the dog-carts had been made out.
THE EARL OF CHICHESTERdesired to say a few words, in order to correct a mistake made by his noble Friend, who had spoken of the present measure as one which would deprive 1,500 parsons in Hampshire and Sussex of the means of obtaining a livelihood. He had made inquiries on this subject, and, as the result, found that the men who used these carts were men of bad character, and they employed this mode of conveyance, not on
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account of its expedition, but of its cheapness. The present Bill was generally asked for throughout the country, and he should therefore support it.
THE EARL OF WICKLOWsaid, that during the present debate, they had not heard a single argument against this measure, but many powerful ones had been urged in its favour. His noble Friend who had moved an Amendment had spoken of the Bill as petty and over-legislative; but as three measures on this subject had passed the House of Commons, and as petitions in their favour had been presented during the present and past Sessions, he considered that the present measure was one for serious and grave deliberation, and not for humorous or witty discussion. Under these circumstances, he trusted that their Lordships would take this measure into their favourable consideration.
THE EARL OF EGLINTONconsented to withdraw his Amendment for the present, as he had been informed that the more formal mode of proceeding would be for him to attack the second clause, to which he objected, in Committee.
LORD ST. LEONARDSdenied that he had ever had anything to do with the second clause, and he was, consequently, not open to any blame that might be thought to attach to that clause. He regretted that his noble Friend had spoken of him with some asperity, and said that he was influenced by feelings of great humanity; he (Lord St. Leopards) had done nothing to show that he had more humanity than anybody else; he might have as much as the common run of mankind, but he could not lay claim to anything more.
Motion, by leave of the House, withdrawn: Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.

ECCLESIASTICAL COURTS BILL.
Order of the Day for the Second Reading read.
LORD BROUGHAMmoved the second reading of the Bill, which had been brought up from the House of Commons, and which would effect, in his opinion, a very great improvement in the course of proceeding in the Ecclesiastical Courts. At present, as their Lordships were perhaps aware, the witnesses in these courts, instead of giving their evidence vivâ voce in the presence of the Judge by whom the cause was to be decided, were examined upon

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interrogatories, and their testimony taken down in writing. The result was, that one person heard the evidence, while another had to dispose of the case. The Court of Admiralty had for some time had the power of summoning witnesses before it, of taking their evidence vivâ voce, and of directing it to be reduced to writing, in such manner as the Judge of the Court might think fit. The object of the present measure was to extend this salutary provision to the Ecclesiastical Courts, there being no reason! whatever why it should not be applied to these as well as to the Court of Admiralty. The witnesses in the Admiralty Court being generally seamen, whose detention in this country would be frequently attended with considerable inconvenience, their affidavits were still generally used, but the power given by the Statute had not been applied so generally as it might have been under other circumstances; but so far as it had been applied, it had been found to work satisfactorily. He could not better illustrate the defects of the present system than by referring to the course which was taken in proceedings against clergymen under the Act for enforcing Church Discipline. The Commissioners whose business it was to institute a preliminary inquiry examined the witnesses vivâ voce; but these Commissioners had no jurisdiction, their duty being limited to making a report to the bishop as to whether, in their judgment, a primâ facie case had been established; and it was only when the clergyman consented, that the bishop had the power, on receiving a report in the affirmative, to pronounce sentence at once. If the clergyman did not consent—as generally happened in contested cases—the case had to be carried, by letters of request, to the Ecclesiastical Court, where the evidence was taken in writing in the presence of a person who was not the Judge by whom the decision was to be pronounced, and where the inconvenience which resulted from the Judge not having seen the witnesses was aggravated by this additional evil—that there was frequently a conflict of testimony between the vivâ voce examinations which had been taken before the Commissioners, and the written depositions which the witnesses had subsequently made. In one such case which had come within his own knowledge, and which had been carried to the Judicial Committee of Privy Council as the court of final appeal, and in which a right rev. Friend of his had been put to an
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expense of between 2,000 l. and 3,000 l., the difficulty and the costs had been very much increased by this conflict of testimony. He believed that another right rev. Prelate had been compelled to pay between 3,000 l. and 4,000 l., not one farthing of which he could recover; and it must be admitted that the case was a hard one, if men being placed in situations in which they were bound conscientiously to take a certain course, found themselves burdened, as the result of taking that course—in consequence of the defects of the law, and still more in consequence of the defects in the mode of administering the law—with an intolerable amount of expense. He would not say this Bill would entirely apply a remedy to this great evil, but it would very much diminish the amount of it. He believed, for instance, that in the case to which he last referred, the right rev. Prelate on the bench opposite, instead of having to pay 3,500 l., would not have had to pay more than one-fifth that sum, had this Bill been sanctioned by Parliament. He admitted that it could only be called an instalment of Ecclesiastical Court reform, but it was a very important portion, because it went to amend the law of evidence, and he trusted this would only be the beginning of other measures directed to the same object. He begged to move that the Bill be read a second time.
Moved, That the Bill be now read 2a.
THE LORD CHANCELLORsaid, he was convinced the Bill would meet with the entire concurrence of their Lordships, and, before putting the question, was only anxious to express his gratitude to his noble and learned Friend for the measure which he had introduced, and which came so gracefully and properly from him, who, in the last three or four years, had introduced so many analogous reforms with respect to evidence in the other courts. It certainly was a very great anomaly that the Ecclesiastical Courts should not have, under any circumstances, the power of taking vivâ voce evidence. As his noble and learned Friend said, this was but an instalment of Ecclesiastical Court reform. It would be his duty during the recess to look into the whole subject of the Ecclesiastical Courts with a view to meet the gross evils which existed. It had been often said that lawyers were not the persons to whom the public should look for law reforms. He never would agree in that, as he believed, if they were not the

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persons to whom they should look, they never would have any reforms at all; and in confirmation of that remark, much as they were indebted to his noble and learned Friend for the introduction of this Bill, it was to a practitioner in those courts, a Member of the other House (Mr. R. Phillimore), that they were indebted for its origination.
LORD CAMPBELLadmitted that the present state of the law was most deplorable, and particularly referred to the difficulty and expense of prosecuting offending clerks.
THE BISHOP OF OXFORDsaid, that it was from no want of the appreciation of the need of legislation in this respect that some measure with relation to it had not already been laid upon the table; but the difficulties in the way of such legislation Were enormous. That the Bishops should undertake to introduce such a measure exposed them and their intended legislation to the greatest difficulties. Such a Bill, upon the very showing of it, was to punish the clergy, and not the Bishops, of the Church of England for errors in doctrine and practice, and their Lordships would admit the exceeding difficulty to Bishops of introducing legislation which they were to administer, and of which others were to be the subjects, without those others having the very fullest opportunity of discussing it, and publicly showing to the country their opinion upon it. It was not for him to say how that was to be done; but, possibly, ways might be found in which the clergy of the country consistently with their other duties might most legitimately discuss such measures in public, after which Parliament would advance to the consideration of questions of this nature with the great advantage of knowing what the clergy thought about them. He certainly did not expect to see any legislation upon this most difficult and delicate subject brought to a happy conclusion until those who were to be the special subjects of such legislation should be enabled to state their opinions with respect to it. He could not let this opportunity pass Without saying—and he believed that the thoughtful Members of their Lordships' House who attended to the subject, were increasingly coming to that conviction—that Church questions, and especially these most delicate ones, were at present discussed at a great disadvantage, not because the clergy had not the right to settle them first—which he, for one, should never
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desire—but because they had not the power of discussing them in public, and letting the Parliament know what they thought upon the matter, and why they thought so. He could only say that in the Commission of which he was a member (the Ecclesiastical Commission), in dealing with the chapters, this difficulty was continually experienced, and the members of that Commission felt that it would be of the greatest possible advantage to them, in giving their recommendations, if they had the means of knowing what the clergy at large thought upon these subjects. It was from no apathy, then, because they were deeply interested in the matter, and from no unwillingness to take their fair share in the legislation of the House, but it was from the inherent difficulties in the way, that the Bishops of England had not taken any steps on the subject.
THE BISHOP OF DOWN AND CONNOR,expressed a hope that the measure would be extended to Ireland, since it was calculated to restore confidence in the consistorial courts, to shorten the duration of suits, and greatly to diminish the expenses.
THE EARL OF HARROWBY,as a member of the Commission to which the right rev. Prelate (the Bishop of Oxford) had referred, expressed his hearty concurrence in what had fallen from him with respect to the clergy discussing in public questions of this nature. He thought that it was worth considering whether the ancient machinery of Convocation, which had formerly existed, could not be again revived for this purpose, which appeared to him to be more and more necessary, inasmuch as the Imperial Parliament less and less identified itself with the Church of England.
On Question, agreed to; Bill read 2a accordingly, and committed to a Committee of the whole House on Thursday next.
House adjourned to Thursday next.