REPORT.

66

TO THE QUEEN'S MOST EXCELLENT MAJESTY.

WE, Your Majesty's Commissioners, appointed "to inquire into and consider the "character, working, and effect of the laws of this realm available for the enforcement "of neutrality during the existence of hostilities between other States with whom Your Majesty is at peace, and to inquire and report whether any and what changes ought to "be made in such laws for the purpose of giving to them increased efficiency and "bringing them into full conformity with Your Majesty's international obligations," have now to state to Your Majesty that we have held twenty-four meetings, and having inquired into and considered the subject so referred to us, have agreed to the following Report :

.

The Statute now available for the enforcement of neutrality during the existence of hostilities between States with whom Your Majesty is at peace is the 59 Geo. III. c. 69, commonly called the "Foreign Enlistment Act." The title of that Act is "An "Act to prevent the enlisting or engagement of His Majesty's subjects to serve in "foreign service, and the fitting out or equipping in His Majesty's dominions vessels "for warlike purposes without His Majesty's licence." And the preamble runs thus : "Whereas the enlistment or engagement of His Majesty's subjects to serve in war in foreign service without His Majesty's licence, and the fitting out and equipping and "arming of vessels by His Majesty's subjects without His Majesty's licence for "warlike operations in or against the dominions or territories of any foreign Prince, state, potentate, or persons exercising or assuming to exercise the powers of Govern"ment in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign Prince, state, potentate, or persons as aforesaid, or other subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom: And whereas the laws in force are not sufficiently "effectual for preventing the same."

This, then, being the Statute directly available in this country for the enforcement of neutrality, our duty has been to inquire and report whether it is susceptible of any and what amendments, and we are of opinion that it might be made more efficient by the enactment of provisions founded upon the following resolutions :—

I. That it is expedient to amend the Foreign Enlistment Act by adding to its provisions a prohibition against the preparing or fitting out in any part of Her Majesty's dominions of any naval or military expedition to proceed from thence against the territory or dominions of any foreign state with whom Her Majesty shall not then be at war.

II. That the first paragraph of sect. 7 of the Foreign Enlistment Act should be amended to the following effect:—

If any person shall within the limits of Her Majesty's dominions-
(a.) Fit out, arm, dispatch, or cause to be dispatched, any ship with intent
or knowledge that the same shall or will be employed in the military or
naval service of any foreign power in any war then being waged by
such power against the subjects or property of any foreign belligerent
power with whom Her Majesty shall not then be at war:

(b.) Or shall within Her Majesty's dominions build or equip any ship
with the intent that the same shall, after being fitted out and armed
either within or beyond Her Majesty's dominions, be employed as
aforesaid:

(c.) Or shall commence or attempt to do, or shall aid in doing, any of the acts aforesaid, every person so offending shall be deemed guilty of a misdemeanor.

III. That in order to enable the Executive Government more effectually to restrain and prevent attempted offences against sect. 7 of the Foreign Enlistment Act, additional provisions to the following effect should be inserted in the statute. (a.) That if a Secretary of State shall be satisfied that there is a reasonable and probable cause for believing that a ship which is within the limits of Her Majesty's dominions has been or is being built, equipped, fitted out, or armed contrary to the enactment, and is about to be taken beyond the limits, or that the ship is about to be despatched contrary to the enactment, such Secretary of State shall have power to issue a warrant stating that there is such a reasonable and probable cause for believing as above aforesaid, and upon such warrant the Commissioners of Customs or any other person or persons named in the warrant shall have power to arrest and search such ship, and to detain the same until it shall be either condemned or released by process of law, or in manner herein-after mentioned.

(b.) That the power herein-before given to a Secretary of State may, in parts.
of Her Majesty's dominions beyond the seas, be exercised by the Governor
or other person having chief authority.

(c.) That power bc given to the owner of the ship or his agent to apply to the
Court of Admiralty of the place where the ship is detained, or, if there be
no such Court there, to the nearest Court of Admiralty for its release.
(d.) That the Court shall put the matter of such detention in course of trial
between the applicant and the Crown, with usual Admiralty appeal to the
Privy Council.

(e.) That if the owner shall establish to the satisfaction of the Court that the
ship was not and is not being built, equipped, fitted out, or armed, or
intended to be despatched, contrary to the enactment, the ship shall be
released and restored.

(f) That if the owner shall fail to establish to the satisfaction of the Court that the ship was not, and is not being, built, equipped, fitted out, or armed, or intended to be despatched, contrary to the enactment, then the ship shall be detained till released by order of the Secretary of State, nevertheless the Court may, if it shall think fit, order its release, provided the owner shall give security to the satisfaction of the Court that the ship shall not be employed contrary to the enactment, and provided that no proceedings are pending for its condemnation.

(g.) That if the Court shall be of opinion that there was not reasonable and
probable cause for the detention, and if no such cause shall appear in the
course of the proceedings, the Court shall have power to declare that the
owner ought to be indemnified by the payment of costs and damages,
which in that case shall be payable out of any monies legally applicable by
the Commissioners of the Treasury for that purpose.

(h.) That any warrant of the Secretary of State shall be laid before Parliament.
(i.) That the proceedings herein provided shall not affect the power of the
Crown to proceed if it thinks fit to condemnation of the ship.
(k.) That the following exceptions be made from this Resolution:

1. Any foreign commissioned ship:

2. Any foreign non-commissioned ship despatched from this country after having come within it under stress of weather or in the course of a peaceful voyage, and upon which ship no fitting out or equipping of a warlike character shall have taken place in this country.

IV. That it is expedient to make the act of hiring, engaging, or procuring any person within Her Majesty's dominions to go on board any ship, or to embark from any part of Her Majesty's dominions by means of false representations as to the service in which such persons are intended to be employed, with intent on the part of the person so hiring, engaging, or procuring as aforesaid, that [the persons so hired, engaged, or procured as aforesaid shall be employed in any land or sea service prohibited by section 2 of the Foreign Enlistment Act, a misdemeanor, punishable like other misdemeanors under the same section.

V. That the forms of pleading in informations and indictments under the Foreign Enlistment Act should be simplified.

VI. That if, during the continuance of any war in which Her Majesty shall be neutral, any prize not being entitled to recognition as a commissioned ship of war shalĺ

be brought within the jurisdiction of the Crown by any person acting on behalf of or under the authority of any belligerent government, which prize shall have been captured by any vessel fitted out during the same war for the service of such government, whether as a public or a private vessel of war, in violation of the laws for the protection of the neutrality of this realm, or if any such prize shall be brought within the jurisdiction as aforesaid by any subject of the Crown, or of such belligerent government, having come into possession of such prize with notice of the unlawful fitting out of the capturing vessel, such prize should upon due proof in the Admiralty Courts at the suit of the original owner of such prize or his agent, or of any person authorized in that behalf by the government of the state to which such owner belongs, be restored.

VII. That in time of war no vessel employed in the military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or despatched contrary to the enactment, should be admitted into any port of Her Majesty's dominions.

In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by International Law, but we are of opinion that if those recommendations should be adopted, the Municipal Law of this realm available for the enforcement of neutrality will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with Your Majesty's international obligations.

We have thought it better to present our recommendations in the form of general resolutions laying down the principles on which legislation should be framed rather than to attempt to draw up in detail the precise form of the statute.

We have subjoined, in an Appendix to this Report, certain papers relating to the Laws of foreign countries on this subject, which have been communicated to us by Your Majesty's Secretary of State for Foreign Affairs, together with a short historical memorandum prepared by Mr. Abbott* for our information, and some other documents illustrative of the subject.

All which we submit to Your Majesty's gracious consideration.

Dr. Lushington did not sign the Report, as he was, from indisposition, unable to attend the meetings after June 1867.

REASONS GIVEN BY MR. VERNON HARCOURT FOR DISSENTING FROM CERTAIN PORTIONS OF THE REPORT.

THOUGH the undersigned has signed the Report, he wishes it to be understood that he has only signed it subject to the following observations :

In the main part of the recommendations of the Report I entirely concur, more especially in those which have for their object to increase the efficiency of the power of the Executive Government to restrain attempted violations of the neutrality of the country.

* Mr. C. S. A. Abbott, of the Foreign Office, was attached to the Commission and in attendance at the meetings.

The portions of the Report with respect to the policy of which I entertain considerable doubt are those parts of Resolution II., § b, and Resolution III., § a, the first of which extends the punitive power of the Law, and the second the preventive authority of the Executive, to the building of ships, apart from the question of their arming or despatch from the realm.

My apprehension is lest such an extension of the Law should unnecessarily and if unnecessarily then unwisely-interfere with the shipbuilding trade of the country. It is needless to enlarge on the capital importance of that trade. As a commercial question it is one of the greatest consequence. It is, perhaps, the trade in which alone Great Britain still retains an unrivalled superiority. Everything which tends unnecessarily to hamper or embarrass it must be regarded with suspicion and adopted with caution. It is not of course argued that the interests of a trade, however valuable, should not yield to considerations of imperial necessity, and of international obligation, if there be such an obligation. But this particular branch of trade has a special national value which belongs to hardly any other. Upon it depend in no small degree those naval resources which constitute the main defence of the realm. I believe it is the fact that at the present moment by far the greater proportion of the existing iron-clad navy of Great Britain has been constructed in the yards of private shipbuilders. These private yards have been created and are maintained at no expense to the nation by the custom of foreign states. Most of the powers of Europe rely for their naval construction on the private yards of English shipbuilders. In this respect, therefore, apart from the commercial question, the nature of this trade involves public consequences of the utmost political importance. The monopoly of the construction of the iron-clad navies of the world has become a new and gigantic arm of our maritime superiority. England has become, and is daily still more becoming, the naval dockyard of Europe. One effect of discouraging this trade must be either that foreign Powers will construct for themselves, or else that some other nation whose restrictions are less rigid and whose trade is more free shall construct for them. Either alternative will deprive Great Britain of a great and special national advantage, which she now enjoys owing to her manufacturing skill and her peculiar resources in coal and iron. If England should unhappily be engaged in an European war we should lose the incalculable benefit of the control we now possess over the naval reserves of Europe. All these reservoirs of naval construction which the demands of foreign governments at present support in this country, can now in case of need be diverted from the foreign supply and be made immediately available for our own defence. If this trade is discouraged and possibly destroyed, the consequences are obvious. Foreign governments must build for themselves the vessels we now build for them. They will, therefore, be independent of this country in a manner which they now are not. Or they will build elsewhere, and the country to which they resort will then acquire the advantage we shall lose. This will be the first result. But the indirect effect on our own resources will be equally serious. At present, in time of peace, we are able to limit ourselves to comparatively moderate, though still enormously expensive, public establishments, because we know that in time of war the private yards will supplement our resources to an almost unlimited extent. But, if this private trade should cease or be seriously diminished, we must keep up constantly in time of peace such establishments as will be adequate to our utmost wants in time of war. The whole reserve of constructing power which we now possess in the private yards must be supplied by the public establishments. And consequently all that expenditure in plant, machinery, and the maintenance of skilled workmen, which is now defrayed by the custom of the foreigner in the private yards, must in future be permanently sustained out of the public taxation. Few people conversant with the subject will dispute that if the yards which now manufacture iron-clads for the world were abolished, the navy estimates must be largely increased in order to establish and keep on foot equal means of construction in the public dockyards. We have a dozen private yards in the country which could in a limited time turn out vessels as powerful as any in the English navy, and which have in fact constructed many of the best ships we possess. Relying on this reserve of producing power we are able to economise our resources and to diminish our stock. But if these establishments cease we must always be prepared to supply their place at a far greater cost to the country. It is also deserving of consideration that the competition of these private yards amongst one another and with the Government dockyards, keeps up probably a higher standard of excellence than could be obtained by mere official supervision.

It will, therefore, be seen that the question is by no means one of the interest of private shipbuilders, but does in fact involve a great question of national resource and public economy.

It is worthy of remark that when in the year 1817 the Congress of the United States

were called upon to alter and amend their Foreign Enlistment Act, the Bill as reported by the Committee of Foreign Affairs in the House of Representatives bore the following title:

"A Bill to prevent citizens of the United States from selling vessels of war to the "citizens or subjects of any foreign power, and more effectually to prevent the arming "and equipping vessels of war in the ports of the United States, intended to be used against nations in amity with the United States."

By the first section, "if any citizen of the United States . . . . shall fit out and arm any private ship or vessel of war, to sell the said vessel or contract for the sale "of said vessel, to be delivered in the United States or elsewhere to the purchaser, with "intent to cruise or commit hostilities upon the subjects of any prince or "state with whom the United States are at peace, such person shall be punished" with fine and imprisonment, &c.

This Bill was much discussed in the Senate, and in the end the first section above quoted was struck out, and the title of the statute altered accordingly. (These facts are stated on the authority of a letter of Mr. Bemis of Boston, published in 1866). The legislature of the United States have thus, it will be seen, deliberately declined to interfere with the commerce of that country in vessels of war. It may be worthy of consideration, having regard to these facts, whether the result of the proposed interference with the shipbuilding trade of England may not be to transfer to America the whole of the custom of foreign states.

But it will be argued that if the equipping, arming, and despatching of such vessels is to be prohibited, it is necessary on the principle obsta principiis to extend the prohibition to the earlier stages of the transaction. That reasoning does not carry conviction to my mind; the arming, equipping, and despatching are conspicuous acts directly and obviously connected with the belligerent intent. To build is nothing unless the vessel be armed and despatched; it is in these acts that the real breach of neutrality consists. The law should lay its hand on the immediate offence, and not be astute to search out its remote sources and springs. To attempt to do so involves consequences which will be politically difficult and dangerous.

The great advantage of the summary and extensive preventive powers which the present Report recommends should be conferred on the Executive to stay the despatch of vessels which may compromise our neutrality, is that they supply a reason which might justify us in mitigating the strictness of the penal code rather than an argument for augmenting its rigour. The notorious indisposition of juries to enforce such penalties creates a mischief which should be avoided. We may sustain the great inconvenience of making laws which we shall find it practically impossible to execute, because they exceed in severity the standard of public opinion. The present Report recommends the creation of an absolute, and I conceive a sufficient power to stop all vessels which ought to be stopped. The case of the Birkenhead rams, stopped by Earl Russell, is an instance of the exercise of the sort of power which it is the object of these recommendations to make more effectual and easy. As soon as reasonable grounds of suspicion arise, the power will be put in force. But assuming the vessel to be stopped, if there remains behind a statute which makes the original building penal, how are we to justify not proceeding to prosecute the builders after the vessel is stopped? If such a prosecution is not instituted the law is brought into contempt; if it is instituted the law will probably break down--results in either case to be greatly deprecated. When juries are called upon to inflict on their own countrymen, on behalf of foreigners, severe penalties for acts which are not punished but are held lawful in all other countries, is it not more than probable that popular sentiment will correct the severity of the law?

It must be remembered that in adding the word "building" to the penal part of the Act we are distinctly creating a new crime. We are making our own subjects liable to criminal penalties for acts which are clearly lawful by the law of nations, which are lawful by the law and practice of all nations, and which have hitherto been lawful by the law and practice of our own people. We shall have not only to enact a new crime which does not exist, but to create an opinion and conscience of criminality which it is more difficult to inspire.

The authors of the English Foreign Enlistment Act distinctly declined to carry back the offence to a period of the transaction which in no way partook of an offensive character and had no obvious or necessary connexion with an attitude of war. The American Government equally, after mature consideration, refused to adopt the alteration now proposed. They did so, upon principles of policy, by departing from which we may involve ourselves in inextricable difficulties, and probably not command on the part of other nations any corresponding reciprocity. It may be urged that whilst it is proposed