No. 120.
Mr. Motley to Mr. Fish.
Sir: * * * * * * * *
I would also bring to your notice the report in that paper (the Times of August 2, 1870) of a debate in the House of Commons * * on the occasion of the second reading of the foreign enlistment bill.
[Page 153]FOREIGN ENLISTMENT BILL.
The Attorney General. I have to move the second reading of a bill of great importance, the object of which is what the late debate has shown to be the general wish of both sides of the House, namely, the preservation of the neutrality of this country. I do not propose to enter into the discussion of any vexed questions of international law. I do not propose to discuss the extent to which a neutral country can be required by a foreign belligerent to interfere to prevent her subjects from taking part in hostile preparations. I do not propose to discuss what municipal laws, if any, she can be required to enact, to what extent she can be Compelled to enforce them, or for what neglect to enforce them she can be held responsible. I do not propose to discuss these questions because, though her Majesty’s government are most anxious to discharge all their obligations of neutrality, still it is well it should be understood that the main object of this bill is not so much to satisfy any demands which foreign nations may be entitled to make against us, but rather to satisfy ourselves [hear] to maintain the honor and dignity of the Crown, which are compromised when the subjects of the Queen take part in hostilities against an ally, and to avoid not merely all causes of offense, but, if possible, all cause of discussion with foreign countries. In a word, her Majesty’s government have been less careful to ascertain what foreign nations would be entitled to require from us than what we consider due to ourselves, to our own dignity, and our own self-respect. It may be that the provisions of our present foreign enlistment act are as strong as can be required of us by a belligerent ally—perhaps even stronger. But I think it will be generally agreed that they are not strong enough to satisfy ourselves, and we desire they should be made more stringent. I shall not enter into the Alabama question. The Alabama escaped by a stratagem which we could not foresee, and which, as we maintain, could not be prevented by ordinary care in the then existing state of our law. We deny that we are responsible to the American Government for the escape of the Alabama, though we are willing to submit that question to arbitration. But, whatever the issue in that case, I believe there is no man in this House who does not regret the escape of the Alabama, [cheers,] and I am willing to hope that that regret is shared even by the authors of the calamity. [Hear, hear.] I trust there is not a man in this House who does not desire that, measures should be taken, if it be practicable, to make the escape of future Alabamas impossible. [Hear, bear.] I need not dwell upon the failures—for I fear I must call them such—of the attempts by the government to enforce the foreign enlistment act. We all know that a suit was instituted against the Alexandra, and although it appeared that that vessel had been built for the confederate government, and was to a certain extent equipped for their service, still the late chief baron directed the jury that, because she was not so completely equipped as to be in a condition to commence hostilities when she left our ports, therefore the foreign enlistment act did not apply; and on appeal to the court of exchequer the court was divided in opinion. I believe the ruling to have been wrong, though I am not entitled to say so, the court having been divided; but if the law was rightly laid down by the chief baron, that law ought to be amended, and no other Alexandra ought to be allowed to escape. I need not name the steam rams which Lord Russell undertook to stop, acting within the powers of the law. We recollect that the proceedings of Lord Russell were seriously impeached in this House, and that upon a division, nominally for papers, but really amounting to a vote of censure, his conduct in stopping the steam rams was approved by comparatively a small majority. These considerations point to an amendment of the law, and I have reason to suppose that considerations such as these induced the government of Lord Derby to appoint a commission in 1868, consisting of men of the greatest possible eminence, who made a very valuable report. It was the intention of the government to propose a bill some time since, carrying into effect the recommendations in that report. The bill gave way to other measures which then appeared more pressing; but I think the House will agree that, upon the breaking out of this unexpected and most calamitous war, her Majesty’s government would have been very much to blame if they had delayed for a single day to introduce this measure. [Hear, hear.] The bill is founded on the report of a royal commission. I am quite sure that there is no class in the community more patriotic or more desirous than the mercantile classes are of maintaining peace and neutrality. We must not, however, disguise from ourselves that there are a set of unscrupulous traders—men who seem to have proposed to themselves no object but that of private gain, and who will endeavor to evade the provisions of any foreign enlistment act which we may pass. It is necessary, therefore, in order to meet the subterfuges with which we may expect to have to deal, that the law should be stringent. I shall now proceed to state very shortly the main provisions of the bill. With respect to enlistment, the provisions of the bill are very much the same as those of the existing act; but they are, I think, expressed in clearer language—a not very difficult task to accomplish, for the present foreign enlistment act is not a good specimen of draughting. Generally speaking, the provisions with respect to enlistment apply to all British subjects in all parts of the world, and to aliens only within the Queen’s [Page 154] dominions. There are provisions against enlisting persons under false representations, as in the case of those who engaged Irish navvies to go to America, where they were enlisted in the federal service. There is a penalty for taking persons illegally on board ship, and a power to detain the ship, accompanied, however, by a power to release her on security being given. I now come to deal with the question of the equipment and fitting out of vessels, with respect to which there has been so much litigation. To this section of the act a very important addition has been suggested by the commissioners, to the effect that it should apply not merely to the arming and equipping, but to the building of a ship. That recommendation was made by all the commissioners, with the exception of my honorable and learned friend, the member for whose authority I have the greatest respect, although I think that he, in the present instance, was wrong, and that the majority of the commissioners were right. If such a provision were contained in the existing act, the Alabama could not have escaped, and the Alexandra must have been condemned. It obviously is very unsatisfactory for a government to be aware that a vessel is being built for a belligerent, to know her destination, to have to wait day after day till she is completed, and then one fine morning to find that she is gone. Now, that has frequently occurred, and it is desirable that it should not occur again. There is also a provision in this section which touches the case of a mere dispatch of a vessel, and a clause containing a provision to the effect that if it is shown that a vessel has been ordered to be built for a belligerent, and is supplied to that belligerent and used for warlike purposes, that shall be held to be prima facie evidence that she was built for the warlike service of the belligerent, unless the innocent destination of the vessel can be established. In a provision of that kind there is, I apprehend, no hardship. The commissioners also recommended, and we have adopted that part of their report, that proceedings should be taken in the court of admiralty rather than the court of exchequer. It is provided, therefore, that suits for the condemnation of vessels offending against the act shall be instituted in the court of admiralty. I have now to call attention to a very important power which we propose to give by the bill. It is the power which it confers on the secretary of state, on his being satisfied that a vessel is being built or equipped for the service of a foreign belligerent, and is about to be dispatched, to issue his warrant ordering her to be detained, which warrant is to be laid on the table of the House. It is further provided that the owner of a vessel may apply to the court of admiralty for her release, which he may obtain if he satisfies the court that her destination was lawful; and not only may he obtain her release, but damages for her retention. In order to prevent any hardship, there is, moreover, a provision that the admiralty shall release the vessel on a bond being given that she was not to be employed on any illegal adventure. There is another provision in respect to which the bill, I admit, goes beyond the recommendation of the commissioners. It gives power to the local authorities named in it to seize a vessel if they have reason to, suppose she is about to escape; but then they will have to report immediately the seizure to the secretary of state, who will be empowered at once to release her, should he be of opinion that there were not sufficient grounds for the seizure; and, assuming the vessel to have been seized without reasonable cause, and released by the secretary of state, the owner will be entitled to claim damages for the detention. These are the provisions by which we propose to attain the object which we have in view, and to render extremely difficult, if not almost impracticable, the escape of any such vessel as the Alexandra or the Alabama in future. There is, besides, a provision against augmenting the force of a belligerent vessel in our ports, and one to the effect that a vessel illegally built shall not be received in our ports. This is a provision which we have introduced in conformity with the recommendation of the commission, but I am bound to say it appears to me somewhat questionable whether it is not desirable to leave the matter to be dealt with by regulations to be laid down by the government, rather than deal with it in acts of Parliament. The bill, I may add, contains a prohibition against fitting out naval and military expeditions, and another, which is new to our law, but which is acted upon by all the American courts, to the effect that prizes captured by a vessel illegally fitted out, if brought into our ports, shall be restored to the owners. These are the principal provisions of the bill, but, in consequence of some misapprehension which seems to prevail, I wish, if the House will permit me, to say a few words with respect to certain provisions which some persons think ought to be contained in the bill, but which are not. I allude to provisions to prevent the exportation of contraband of war. Those who entertain misapprehensions on this score I would refer to a letter signed “Historicus,” which appeared in the Times of Saturday, and which contains a clear and correct expression of the law on the subject. But as some honorable members may not have seen that letter, I will make a few remarks by way of explanation on the point. The government of this country does not undertake, and has not undertaken in former wars, to prohibit the exportation of contraband of war. The exportation of contraband of war is not prohibited by the existing enlistment act, nor, strictly speaking, by the Queen’s proclamation. On this subject, however, it appears to me that a good deal of misapprehension exists. Some people seem to think that the Queen could, by her proclamation, constitute a [Page 155] new offense against the law of the land, but to suppose that would be tantamount to supposing that the Queen could exercise the functions of the whole legislature. No proclamation of the Queen can constitute that an offense against an act of Parliament, or the law of the land, which was not an offense before; and if honorable members will carefully read the recent proclamation, they will find that the effect of it is as follows: It draws their attention, in the first place, to certain provisions of the foreign enlistment act which prohibit the furnishing of ships of war, &c., to belligerents, and it indicates that any offense against those provisions will be a criminal and indictable offense. The proclamation proceeds to warn her Majesty’s subjects, first, against the breaking of blockades, and, secondly, against the supplying of contraband of war; but the consequence of disobeying these injunctions of the Queen are pointed out to be a liability to hostile capture. That is the liability, and the only liability, which is pointed out in the proclamation. The government have not undertaken to prevent vessels from breaking the blockade, nor to prevent the exportation of contraband of war, but they say to any man who starts with a vessel intending to break the blockade or to supply contraband of war to a belligerent: “You do it at your own risk; you will be subject to capture, and the Queen will not interfere for your protection.’’ That is the consequence of which those people are warned who contravene the provisions of the foreign enlistment act. I think it well that this should be generally understood, because many complaints are made against the government for not preventing the exportation of coal, of horses, of a variety of articles which may or may not be contraband of war. Let us see what has been our practice in former wars. During the Crimean war, for example, Belgium and Holland supplied Russia with large quantities of arms, but we did not treat that as a breach of neutrality. Again, during the American war large quantities of arms, ammunition, and other contraband of war were supplied by us both to the federals and the confederates, but although the former complained of us for having allowed the Alabama to escape, they made no complaint that we did not undertake to prevent the exportation of contraband of war. They merely captured the vessels when they could catch them. Therefore, provisions to prevent the exportation of contraband of war are not to be found in this bill any more than they are to be found in our existing act or in the American act. This, however, ought to be known. If it be shown that a vessel carrying coal or any other contraband article is so far in communication and correspondence with the fleet of either belligerent as to form a part of it, or acts as a tender to ships of war, such vessel will run the risk of being captured and forfeited as a, store-ship in the service of the enemy. It is true that under the customs consolidation act the Queen may stop the exportation of arms by an order in council, but that provision has never been enforced except when we ourselves were actually engaged or were on the point of engaging in war. I admit that this bill goes beyond the American act. Indeed, as far as I am aware, it goes beyond any statute law passed in any country for the purpose of enforcing neutrality. If we bad merely considered the strict measure of international duties which might have been forced upon us, probably we should not have gone so far; but the bill has been prepared for the sake of ourselves and of our dignity rather than in order to satisfy any demands which might be made upon us by foreign countries. Although some of its provisions against reckless and unscrupulous traders may be stringent, I think none will interfere with the objects of legitimate commerce. At all events, the bill has been prepared with much care and consideration by the government with the object of promoting what both sides of the House profess to desire, namely, the preservation of the neutrality of this country and the peace and tranquillity of Europe. It has been prepared with that object, and I, therefore, confidently venture to submit it to the candid consideration of both sides of the House. [Hear, hear.] The honorable and learned gentleman concluded by moving the second reading of the bill.
Mr. Staveley Hill cordially indorsed all the reasons adduced by his honorable and learned friend in favor of the bill, as this country certainly ought to endeavor by every means to maintain itself as a neutral state. Above all things, it was necessary to prevent the recurrence of what happened during the American war, and, consequently, we ought not to allow England to be made the starting point of a ship of war which, as had been aptly remarked, was an expedition in itself. In his opinion, the present measure should carry out the spirit of the foreign enlistment act passed in the reign of George III, but ought not to go so far as in any way to cripple our ship-building trade. It ought not to prevent our ship-builders from carrying on their trade simply because some of the vessels they constructed might be used in war against or by a friendly power. The eighth clause went too far when it provided that any person within her Majesty’s dominions should be deemed guilty of an offense who built or agreed to build any ship if be bad reasonable cause to believe that it would be employed by any foreign state at war with any friendly state. In his judgment, the clause ought to be limited in its operation by the insertion of words to the effect that it should be an offense to build the vessels after the declaration of war. The fifth clause affected all persons leaving her Majesty’s dominions with the intention of entering the service of a foreign state, and the House would, perhaps, learn with considerable surprise that [Page 156] under that clause a penalty would be inflicted on an American subject who quitted these shores in order to serve in the French army. The circumstance of the court of exchequer having decided the Alabama case against the Crown was not a sufficient reason for transferring the jurisdiction in such cases to the judge of the admiralty court. In conclusion, he expressed approval of the bill generally, but hoped it would be so amended as to keep the country thoroughly neutral when it was so designed by the government.
Mr. Vernon Harcourt was glad that an atmosphere of neutrality at length pervaded the Houses He rejoiced at the appearance of this measure, notwithstanding the tardy action of the government respecting the matter with which it dealt. No one would differ from Lord Russell’s dictum, that the case of the Alabama was a scandal to the law of this country, and that those concerned in that disastrous fraud committed one of the most unpatriotic acts of which an Englishman had ever been found guilty He was glad to hear from the attorney general that the bill could not be regarded as a bill founded upon international obligations; it went far beyond any such obligations; it was a bill to restrain private warfare against a nation with which the sovereign was at peace. He was sure the honorable and learned member for Richmond and the vice-president of the committee of council would agree with him in the opinion that it would have been better if the preventive portion of the bill had been enlarged, and that so much had not been made of the punitive portion, because punishment was useful only as a deterrent, but prevention was of far greater consequence. Besides, if great weight was placed upon the punitive portions of the bill, foreign powers would be continually complaining of our not prosecuting sufficiently. The action of a jury, too, was necessary in the case of punishment, and juries might be unwilling to give a verdict against a prisoner. He regretted the bill had not been introduced earlier, that it might be revised by a select committee. Among other things he noticed with regret that the power held by the executive to dispense with the operation of the foreign enlistment act had not been dispensed with. This power would enable a government, as was said by Canning, “to sneak the country into a war which they had not the courage to declare,” a most dangerous power for any government to possess. As regards clause 5, he agreed with the honorable and learned member for Coventry that we should not control foreigners as regards their object in leaving this country. Clause 6, which proposed to punish those who induced others to enlist in a foreign army, was a very useful one, and was directed against crimps and others who got hold of innocent sailors, and when they got them to sea endeavored to persuade them to sign articles. That clause, however, concluded by a singular paragraph, to the effect that if a man taken abroad should ultimately enlist in a foreign service it should be deemed conclusively that he quitted her Majesty’s dominions with the intent to accept as engagement in the military or naval service of such foreign state. In his opinion, the clause would be sufficiently strong without that paragraph. The eighth clause had reference to the illegal building of ships, and, in his opinion, it was open to considerable difficulty. If the government took upon itself to forbid the building of vessels of any particular description they would make themselves responsible for every keel laid in this country, and the representatives of foreign nations would be constantly urging them to interfere in a manner calculated to materially check our ship-building trade, on the ground that nearly every vessel that was being built might be intended for a purpose adverse to the interests of the country in whose service they were. The private ship building trade in this country was a most important one, as it afforded us in time of war splendid dockyards, which cost us nothing to maintain in time of peace, and he warned the House against passing, he would not say in a moment of panic, but without a sufficient amount of consideration, any measure which was calculated to drive away that trade, and thereby to give to foreign nations the advantages which it at present afforded us in the shape of the private dock-yards to which he had alluded. All that was necessary in order to carry out the intention of the measure was to prevent the dispatch of the vessel when built, and not to prevent it being built, and he thought that that object was fully provided for by another clause in the bill. Under clause 7, which supplemented the provisions of clause 6, if any American were to leave this country for America by one of the Cunard Company’s ships, and were subsequently to enter the service of any of the states of South America, the captain of the ship so carrying him would be liable to two years’ imprisonment. That would be stretching the law to a most injudicious extent, because he did not think that Parliament had a right to inquire into the motives of any foreigner when he left these shores, and because he thought that it was absurd to say that the captain of a vessel conveying him should be responsible for what was concealed in the mind of the foreigner during the voyage. He trusted, therefore, that the honorable and learned gentleman would consent to strike that clause out of the bill. The attorney general had stated that it was his intention to strike out clause 11, which was intended to prevent the hospitality of our ports being extended to vessels that had illegally left this country, on the ground that he thought its object would be better carried out by means of a regulation to be enforced by the executive. He entirely agreed with the necessity that existed for the enforcement of some such regulation, [Page 157] because he believed that had the Alabama been excluded from our ports after she bad escaped from this country, the difficulties that bad arisen between this country and America in reference to that vessel would have been avoided. He thought that if the alterations he had suggested were made in the measure it would be a far better bill than it was at present. [Hear.]
Sir Roundell Palmer was glad that the House was so nearly agreed upon the importance of and the necessity for passing this measure. It was most desirable that the statement of the attorney general, that a nation was not bound by international law to legislate upon this subject, should be thoroughly understood and generally known. In fact, it was only in this country and in the United States that such legislation had occurred, although no doubt in many continental nations there were elastic powers in force which enabled the various governments to deal with cases of the description referred to in the bill, when they happened to arise. All subjects of the country owed to the government the duty of being neutral when the state was neutral, and it was the duty of the state to arm itself with powers to repress any attempt on the part of private citizens to oppose the public will to be neutral. His honorable and learned friend the member for Oxford had suggested that the House should seize the opportunity of doing what was not done by the existing foreign enlistment act, and should take from the Crown the power of granting a license to do any acts which, under the foreign enlistment act, would be illegal if done without the license of the Crown; but to legislate to deprive the Crown of the power of taking a single step of that kind, without going to war altogether, would be imprudent and foreign to the purposes of the present bill, for there might be many cases in which it would be inexpedient to enter upon war, though the state did not assume an attitude of strict neutrality. A matter of high policy of that kind ought not to be dealt with by a side-wind in such a bill as the present. The fifth clause related to persons leaving this country to enlist in the service of a belligerent whose subjects they were not, and if it were expedient to retain such a clause, it was also expedient that the Crown should have the power of relaxing its operation. And so with regard to the important case of ship-building; if a power of relaxation was not given to the Crown, there would be involved in the penalties of the bill any person who took a contract to build a ship before the commencement of war, and yet might be willing afterward to go to the government and ask for a license, undertaking, at the same time, not to allow the ship to leave the country. With regard to the seventh clause, they must consider not merely the case of the solitary American alluded to by the honorable member from Oxford, but must look at the larger case. There was in this country a great number of foreigners of various nations, and it could not be maintained that the principle of neutrality would be observed if a recruiting sergeant were allowed to go through the country to enlist persons for the service of a foreign state of which they were not the subjects. With regard to the clause respecting illegal ship-building, he was of opinion that if the power conferred by that clause were not given the bill would be emasculated. He thought it of infinitely greater importance that all ship-builders and traders in this country should obey the law with respect to the neutrality of their country than that they should have a few contracts on their hands more or less. [Hear, hear.]
Mr. Samuda feared that much mischief would be done to the large and important ship-building industry of the country if this bill were allowed to pass in its present form. He thought the whole objects of the bill might be obtained by the fourth subsection of the eighth clause, omitting all the others, avoiding, all restrictions on shipbuilding, and only requiring stringent securities that the vessels should not be dispatched without a certificate from the foreign secretary.
Mr. Rathbone thanked the government, in the name of the mercantile community, for introducing this bill, which only carried out the policy which the ship-owners of Liverpool passed on the government of the day very soon after the escape of the Alabama. The mercantile community would give their utmost support to the government in maintaining a faithful and true neutrality.
Mr. Bourke supported the second reading of the bill, but regretted that it had not been introduced at an earlier period of the session, and that we should now have the appearance of legislating to meet special circumstances, though the provisions had been matured in a time of profound peace. At the same time Earl Russell was among the many distinguished persons who had formerly been of opinion that the foreign enlistment act was sufficient for the purpose. The practice of neutrality was in many respects very embarrassing from the fact that this country had become the arsenal, dock-yard, and workshop for every nation in the world; and the man who delivered a thousand rifles to one of the belligerent nations infringed the principle of strict neutrality as much, in his opinion, as the man who built them a ship. While, therefore, he agreed that further legislation was necessary, he recommended the government to rely more on the preventive than the punitive clauses, and not to attach a brand of criminality to the acts of ship-owners, while others were allowed to go free.
Lord Bury could not see in the fact that war was raging on the continent any reason for not amending our municipal law in points where this was notoriously defective.