Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 155.
General Schenck to Mr. Fish.

Legation of the United States,
London, March 22, 1873. (Received April 4.)

No. 358.]

Sir: The “ministerial crisis” through which the government here has gone is over. For a week there was excitement; Mr. Gladstone and his colleagues went out and came in again; and all is now pretty much as if nothing had happened.

I have not written to you of this political movement for two reasons. In the first place, in these days the telegraph anticipates quite fully all such news sent by the slower communication of the mailsj and secondly, there was nothing in the matter in any special way affecting the interests of the United States.

The Irish university bill has proved an abortive measure, not likely to be remembered long, except in its effect upon persons, even by those who advocated or supported it.

But last night there was a long discussion in the House of Commons which had for its subject that which does concern us—the interpretation to be put on the three rules enunciated in the treaty of Washington.

Mr. Hardy, who is a prominent member of the opposition, sitting for the University of Oxford, brought on a motion, of which he gave notice some time ago, for an address to the Grown, praying that Her Majesty in communicating these rules to foreign powers will declare to them her dissent from the principles set forth by the Geneva tribunals as the basis of their award.

I give you herewith, in form, to be preserved, a full report from the London Times of this morning of Mr. Hardy’s speech in support of his motion, and of the debate which ensued. To that report I refer you.

It is not necessary to make, even if there were time to prepare it, as there is not, for the mail of to-day, a synopsis of the debate. The conclusion, as expressed by Mr. Gladstone on the part of the government at the close of the discussion, is what is most important to be noted; and it was upon this indication of the view and purpose of the Government that the motion for an address to the Crown was withdrawn.

The prime minister pledges himself that care shall be taken, as far as Great Britain is concerned, that in communicating the rules to the maritime powers, what he calls “the dicta of the arbitrators—their recitals—the rationes decidendi,” shall not enter into the question.

But you will observe that Mr. Gladstone negatives the idea that in making such communication to other governments there is to be any “substantive interpretation” placed on the rules, or a “comment to be framed on the text,” and he assigns for reason that any such comment or interpretation would necessarily become of equal value with the rules themselves, and ought therefore to constitute a portion of them; so that we should be traveling back to the point from which we set out, and would be aiming at an entire reconstruction of those rules.

I do not know whether the premier intended to be so understood, but it would seem to me that he rather commits himself to the position that the rules ought to be submitted by our two governments to the other maritime powers for their acceptance, pure and simple, or without any construction or interpretation of the sense in any respect in which they are to be taken. I send also the leading article of the Times of this morning on this debate.

I have, &c.,

ROBERT C. SCHENCK.

Parliamentary intelligence.

House of Commons, Friday, March 21.

[The Times, Saturday, March 22, 1873.]

The Speaker took the chair at 5 minutes to 4 o’clock.

International law.—The new rules.

On the motion for going into committee of supply,

Mr. Hardy, in bringing on the motion of which he some time ago gave notice, trusted it would not be supposed that he was doing so in any party interest, or with any other object than the interest of the nation at large. (Hear, hear.) It seemed to him that this was a question on which every one might meet on common ground; and, looking at the terms of the motion, he thought it could not be charged with doing more than setting fairly before the country what, in his opinion, ought to be done on a subject eminently deserving the attention of Parliament. Every one knew how difficult and complicated the relations of belligerents and neutrals were; the belligerent generally considering himself ill-treated by the neutral, while the neutral thought he was ill-treated by the belligerent. During the civil war in America, owing to the intimate relations existing between the two countries, both North and South desired to obtain from us what was called a “benevolent neutrality,” in place of the impartial neutrality which Great Britain attempted to uphold. He thought no one could impute to Lord Russell any other desire than to act fairly between the two combatants. (Hear, hear.) The Northern States were of opinion that they were subjected to an unlawful rebellion; but Lord Russell felt from the time of the blockade of the southern ports that he had to deal with two belligerent powers, that it was impossible to treat one differently from the other, and thenceforth his sole object was to give neither reason to complain of any breach of neutrality on our part. Nor if the law had remained as it was, could any breach of international law have been justly alleged against us. The object of the treaty was to secure an amicable settlement of all causes of difference between the two countries, and it was most unsatisfactory to find that all the questions in dispute had not been referred to the arbitrators. How, for instance, could a final settlement be expected when the raid into Canada was excepted? (Hear, hear.) He trusted no one would interpret his criticism of the award as conveying any imputation upon the arbitrators, either as regards their fairness or judicial qualities. He desired to deal with the award as a suitor appealing from the most able judge in the world to a higher tribunal, in order to have an important point settled finally, and placed beyond dispute. It was only reasonable that the great tribunal of this nation should have the opportunity of investigating the principles laid down by the arbitrators, with a view to determine how far the nation should in future be bound by them. Early in the course of the negotiations, Earl Granville had remarked upon the advantage of determining upon a code of international law on the subject of shipping, which might not only be a guide to Great Britain and the United States in future, but might be recommended by them to all the maritime states of the world. Sir Roundell Palmer had dwelt much upon this point in 1871, and his right honorable friend (Sir S. Northcote) had stated the same object when at Washington. The three rules had always been regarded on the part of Great Britain simply as an agreement between the two countries, and not as international law, although they might become international law, if on being accepted by the two states they were afterward indorsed by all the maritime nations of the world. It was most important that belligerents should be allowed by any code which might be agreed on to conduct their warfare without being injured by the conduct of neutrals; but if he had to choose between those who disturbed the peace of the world and those who were solicitous for peace—those who by commerce hoped to bring about the union of the whole world—he would prefer to secure the neutral from oppression by laying down such rules as would do perfect justice between all nations, whether they were powerful or weak. If the rules were in future to be what the British government by the arguments of counsel and by the dicta of members of the government in this house had stated they were to be, he would not have made them the subject of a motion, but the rules had been otherwise interpreted. Earl Granville had stated that, if they were not entirely covered by the old foreign-enlistment act of 1819, they were more than covered by the new enlistment act of 1870. Of course, if the rules went no further than an act of Parliament agreed on by both houses, Parliament would have nothing more to say on the subject; but was this so? It was, perhaps, necessary to remind the house of the distinction between municipal and international law. Our foreign-enlistment act was simply a piece of municipal law agreed on for the benefit of this country in order that the state might control individuals within the country, and keep them from committing certain acts which were considered as detrimental to the interests, of this nation. As it was not international law, no foreign state, no prince or potentate, however great, had any right to tell us to enforce that law. A foreign state might request us to do so, and we might comply with the request or not, as we thought just; but whatever was done, it was incumbent upon us to act with strict neutrality; we were bound to be careful not to put our municipal law in force in favor of one state as against another, or refrain from putting it in force in the interest of one state as against another. Nothing more was required of us by international law. It might happen that we had incorporated parts of international law in our municipal law, and that a breach of one was a breach of the other. In such a case a foreign state might call upon us to put the law in force; and if the state were guilty of a willful breach of international law, then a casus belli would arise between that state and the one injuriously affected. If the three rules went no further than this he would not have moved in the matter, but an interpretation of so extraordinary a character had been put upon them that it had become necessary for the house to pronounce upon them. (Hear, hear.) It was evident from the award that the arbitrators contemplated laying down general principles for the settlement of international disputes. It might be true, as the chancellor of the exchequer had said, that we were not to be bound by the reasons given by the arbitrators nor by the principles they laid down; but we had allowed ourselves to be tried on the basis of the rules, had been judged in accordance with them, and were about to pay £3,200,000 in consequence. It was impossible, therefore, to go to foreign countries on the subject of international obligations without being confronted by the question whether we wished these rules to bear the interpretation put upon them by the arbitrators, or whether we wished them to be limited in accordance with the argument addressed to the arbitrators in our behalf. The award seemed to be accepted as far as regards our relations with the United States in the past. Was it to be accepted as a guide for the future? If it remained without protest on our part, who were the sufferers, there would be no protest by the gainers; and if any controversy arose in the future of a similar kind we should suffer again, because it was absolutely impossible to fulfill the obligations imposed upon us by the interpretation put upon the rules by the award. We had taken great pains to put ourselves in a position to fulfill, far beyond the requirements of international law, our duties as neutrals. We had passed an act of the most extraordinary stringency—the foreign-enlistment act of 1870—which, in one instance at least, reversed all the forms of proof. That act threw on a man charged with building and equipping a ship for a belligerent the onus of proving that he was not guilty. That was a very long step to take, and it showed how determined this country was ully and fairly to discharge the duties of neutrality. But the United States had no such act; they remained with what had been described as the much weaker act of 1819, under which it would be simply impossible to carry out those rules. If, therefore, we were to come into collision with the United States on this point, the Government of that country was not in such a position that it could possibly carry out the rules, because their municipal law would not enable them to do so. The broad inference from the award was that the arbitrators had laid down a principle which seemed absolutely wrong. They said that the moment there was a reasonable ground for suspecting the building and equipping of a vessel for belligerent purposes, whether the suspicion was founded on legal evidence or not, the sum of our obligations began to accumulate, and unless we succeeded in preventing the vessel from fulfilling the intent for which she was prepared we were guilty. (Hear.) There was no escape from that conclusion. That principle laid it down that we were to be insurers, (hear)—that we were to insure a belligerent that no subject of this country, no matter in what portion of this great empire he dwelt, whether here at home or at the extreme distance of our remote colonies, should do this thing. Was not that an intolerable burden—a burden which no country could bear? (Hear, hear.) He was not exaggerating; he felt that he was only describing the true state of the case, because it was on the interpretation of the question of” due diligence” that all this award seemed to turn. He came now to the rules of the award, and it might be convenient to take them in the order which the arbitrators themselves had adopted. First of all, the arbitrators laid down that “due diligence” ought to be exercised by neutral governments, not to the best of their ability, but in exact proportion to the risks to which either of the belligerents might be exposed from a failure to fulfill their neutral obligations. What was meant by that? That you were not to measure the fidelity with which you carried out your obligations as neutrals by your duty, but by the effect on the belligerent. (Hear, hear.) Now, that seemed to him to reverse all the rules of justice. (Hear, hear.) We had a duty to perform, but the very principle of duty was that you were not to look to the results, but to do what was right, fairly, freely, openly, and candidly, before the world, let the consequences be what they might. (Hear, hear.) Now, it made no difference whatever that there was in the case this peculiar circumstance that the entire confederate coast was blockaded, though that fact had from the beginning very much complicated matters in the eyes of the United States. But what was the next thing the arbitrators said? That the facts out of which the controversy arose were of a nature to call for the exercise on the part of Her. Britannic Majesty’s government of all possible solicitude for the observance of neutrality. We were called upon to exercise all possible solicitude—that is, to do everything not impossible. But there were a great many things no state could do. No state could possibly control the acts of every inferior servant. (Hear, hear.) It could only do its best. The state could not prevent all offenses against itself, as everybody knew. All it could do was to make certain acts criminal, but the criminals might possibly escape, and it would be rather hard to say that this country should be held responsible because it failed to detect persons in the offenses which they committed, He came now to one of the most important points in the whole of this case, and that was the new doctrine with respect to commissioned ships. He had here a speech made in the house by Sir Roundell Palmer in 1871 upon; a discussion raised by his right honorable friend the member for North Staffordshire, (Sir C. Adderley.) That speech had been listened to by the whole house with the greatest possible attention, and in quoting from it a passage as to the bearing of international law on commissioned ships no one would question its propriety. Sir Roundell Palmer said:

“When any ship had once been commissioned as a public ship of war by a belligerent power over whom we had no jurisdiction, no proceedings or inquiry having previously been held within our jurisdiction as to that ship, we did not consider ourselves; bound or entitled to refuse to allow her, like other ships bearing a similar commission, and under the same restrictions, to enter any of our ports.

Now, it was quite clear that the United States had always acted on that principle. In fact, the question was raised there, and the United States, through their Attorney-General, refused to interfere, on the ground that they would not have it said that they would do so discourteous an act to any power as to seize on its commissioned ship as if they had jurisdiction over it. A commissioned ship was always considered ex-territorial as regarded the country into which it had entered, and as part of the territory of the country from which it had come. And although the ship might have been commissioned deceitfully and clandestinely, yet when it arrived at one of our ports with a commission it must be treated as belonging to one of the belligerent powers, and if we seized upon such a commissioned ship we should do what no nation had ever done, and we should violate the laws of neutrality as well as international law. (Hear, hear.) No doubt it was said that the privilege of exterritoriality was not admitted into the law of nations as an absolute right. That was true. He believed it would be in the power of any state to exclude a commissioned ship. If a commissioned ship came into its waters without permission, no doubt the state would take care to protect itself against such intrusion for the future. But we could not act upon the principle of exclusion without giving notice to the belligerents, and if a vessel commissioned by the confederates, for instance, which, though suspected by this country, had never been traced, were to be seized without notice, it would practically be an act of piracy. (Hear, hear.) Now, was it necessary that he should carry this argument a little further? The Florida went into a confederate port, and was there for some time, and afterward issued from the port. But because she departed from our shores and came back to our shores again, was that a reasonable excuse for seizing her? Were they prepared to go on upon such a footing as this? The unfortunate confederates were no more—they could make no reclamations as to what had been done; but they must look upon this as a question which might arise between this country and some of the great powers of the world; and because a breach of municipal law had been committed on the part of a commissioned ship were they to seize her when she came into one of our ports? Did they suppose if such a proceeding arose in the case of France or Russia or the United States it would not at once lead to reprisals? It must, therefore, produce a most formidable effect on the peace and prosperity of neutrals, and, so far from enabling them to perform their duty, would involve them in endless difficulty and danger. (Hear, hear.) Could this country take such a step as to seize a commissioned ship in these circumstances? How was it to be done? This country was a constitutional, not a despotic country; and not only had care been taken to provide against such an occurrence as the seizure of a commissioned ship, but they would find in that very municipal law—the thirty-second section of the 33d and 34thVictoria, cap. 91—words had been inserted at the end of the clause showing that they had no such right or power. The executive had, therefore, no means of guarding against that which was deemed most culpable in their conduct by the award under which we were suffering. (Hear, hear.) He was very reluctant to quote more than was necessary; but this point had been urged with great force by Sir Roundell Palmer before the arbitrators. (“Hear, hear,” from Mr. W. E. Forster.) His right honorable friend cheered, and he should be delighted to hear that his right honorable friend approved the reasoning. What did Sir Roundell Palmer say? He asks, with reference to Rule 1:

“Does this rule make it a duty to seize commissioned ships? The negative answer to this inquiry results immediately from the natural meaning of the words of the rule itself, which plainly refer to a departure from the neutral territory of a vessel which has not at the time of such departure ceased to be subject, according to the law of nations, to the neutral jurisdiction and the cruising and carrying on war by which still rests in intention and purpose only, and has not become an accomplished fact under the public authority of any belligerent power. The rule says nothing of an obligation to exclude. If not excluded it would be a flagrant act of treachery and wrong to take advantage of their entrance to effect detention or capture. Their retrospective application cannot make an ex post facto ‘due’ upon the footing of diligence to the one party in the war, which, if it had been actually done, would have been a wholly unjustifiable outrage on the other. It would be impossible that an act which would be a breach of faith and of international law to one belligerent should be held to constitute any part of the ‘diligence due’ by a neutral to the other belligerent.” (Hear, hear.)

The next dogma laid down was couched in somewhat milder terms, but it had exercised a most material effect on the award. It had reference to the “coaling” of vessels. “Coaling” did not come under “renewal or augmentation of military supplies or arms,” therefore it must come under the second rule as stated in the award—“Making use of the ports and waters of the neutral as a base of operations against one of the belligerents.” If it could be made out, in dealing with this question of “coaling,” that there was a power of coaling in our ports and waters, then going to attack a belligerent, and coming back to get more coals for the same purpose, there might be some pretense for speaking of a base of operations. What was a base of operations? The lord chief justice said:

“A base of operations signifies a local position which serves as a point of departure and return in military operations, and with which a constant connection and communication can be kept up, and which may be fallen back upon whenever necessary. In naval warfare it would mean something analogous—a port or water from which a fleet or ship of war might watch an enemy and sally forth to attack him, with the possibility of falling back upon port or water in question for fresh supplies or shelter or a renewal of operations.”

It was remakable that “coaling” bad never been complained of by the United States as regarded the confederates; and both parties coaled on precisely, the same terms, only the United States got double the quantity the confederates got. Sir Roundell Palmer said:

“It is no more intended by the second rule to take away or limit the right of a neutral state to permit the coaling of steamers than to take away the right to permit them to receive provisions or any other ordinary supplies previously allowable under the known rules of international law.”

No change was, therefore, made by the second rule of international law as to coaling. Yet Count Sclopis held that the Florida and the Shenandoah both improperly coaled on account of the scene of their operations. The Shenandoah, it was said, having coaled at Melbourne, went away and captured whalers in some distant sea; but no one in Melbourne knew where she was going; she did not return, and, as she only received the allowance of coal which the Queen’s proclamation sanctioned, there was no pretense for saying that she was making that port a basis of naval operations. To use the language of the lord chief justice—

“We have here another instance of an attempt to force the words of the treaty to a meaning which they were never—at least as far as one of the contracting parties is concerned—intended to bear. It would be absurd to suppose that the British government, in assenting to the rule as laid down, intended to admit that whenever a ship of war had taken in coal at a British port and then gone to sea again as a war-vessel, a liability for all the mischief done by her should ensue. Nor can I believe that the United States had any such arrière pensée in framing the rule, as, if such had been the case, it is impossible to suppose that they would not have distinctly informed the British government of the extended application they proposed to give to the rule.”

He wished to know how the foreign-enlistment act, as it stood, would enable the government to enforce what was made international law by these rules, because there was no provision in that act under which we could prevent a lighter within our waters going out to coal a vessel; there was no provision in our municipal law which would enable us to interfere; and, therefore, the impracticability of the rules was manifest if we admitted the interpretation under which we were made to pay so severe a penalty. As to the general question of “due diligence,” what had it always meant—what was, in fact, the only fair meaning? By the award, under all circumstances, it was made to depend, not upon the duty, but upon the result. It was said we did not take effective measures of prevention; that our measures led to no result, therefore they could not be sufficient, and that the plea of insufficency of legal means was of no avail. A nation had a right to expect from another, in the fulfillment of international obligations, an amount of diligence which might reasonably be expected from a well-organized, wise, and conscientious government, acting according to its institutions and its ordinary mode of conducting its affairs; and it had no right to expect more. This was the ruling of the lord chief justice. We had legal means at least as strong as those of the United States, and for a question to decided ex post facto, upon the rules, we had a stronger law; but should we tolerate its being laid down that though we had gone as far in legal means as we thought it consistent with our dignity and our duty to the country, and though we thought our legal means sufficient, if they were insufficient to carry out this impracticable purpose, we were to be liable to compensate any belligerent whom we did not gratify by carrying out the impossible? Foreign states had no right to question the adequacy of our municipal law, which in this country was supreme, so much so that the executive could not contravene without immediately asking Parliament for indemnity. All they could ask us to do was to fulfill our law to the extent to which it exists. It was not to the honor of the country that it should submit to have its municipal law dictated to it by a belligerent. It was for this country to decide how far it should control its citizens in the free exercise of their trade or limit the power of its officers; and it was not for a foreign country to say that we had not made laws such as a belligerent might consider necessary for its protection. It was said that legal evidence ought not to be always required, and that there was reasonable ground to justify action. We replied that it had never been our custom to act upon suspicion without legal evidence. If we acted without it, what was the result? If we prosecuted and failed, we did more mischief than we should if we did not prosecute at all. The failure of such proceedings did infinite harm, because they exposed the weakness of the law and assisted those who wished to evade it. It was said by Sir Roundell Palmer:

“It would be unreasonable and impracticable to require that it (due diligence) should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their citizens.”

Was that a fair test? It was a true one. We should use such diligence as was demanded by our own imperial interests, and that was all that could be required. Sir Roundell Palmer further said that failure to prevent was not equivalent to want of due diligence; that without a reasonable ground of belief no obligation arose, and that error of judgment was not want of due diligence. On this point he would refer honorable members to the argument of Sir Roundell Palmer as contained in the Gazette, pages 4623 and 4637, in the course of which he said:

“Without timely information and evidence of a legal kind sufficient and proper to constitute a ‘reasonable ground of belief,’ no obligation to use any such diligence arises, and the government of a civilized nation cannot be held wanting in due diligence if, having made reasonable provision by law for the prevention of illegal acts of this nature on the part of its citizens, it proceeds to deal with all such cases in a legal course according to its accustomed methods of civil administration. This is, in fact, the ‘diligence,’ and the only diligence, which is, in such cases, generally ‘due’ from an independent state to a foreign government; and from this it follows that accidental and unintentional difficulties or delays, or even slips and errors, such as are liable to result in the conduct of public affairs, and from the nature of the subordinate instruments by which, and the circumstances under which, civil government is necessarily carried on, and against which no human foresight can always absolutely provide, ought not in themselves to be regarded as evidences or proofs of a want of ‘due diligence’ where good faith and reasonable activity on the part of the government itself have not been wanting.”

But what said the award? It said that a judicial acquittal, like that of the Florida at Nassau, could not relieve Great Britain from its responsibilities. This implied that we might have taken the step of bringing a vessel before a court which acquitted it, whether rightly or wrongly did not matter, and yet that we should not be free, although the United States admitted it was impossible any government should interfere with its judicial authorities. How was it the decision at Nassau did not relieve us? Because this award made the result the absolute test of “due diligence,” and did not allow the steps that were taken to weigh in the balance at all. That, however, was past; he was not arguing the past—that could be done when the chancellor of the exchequer asked for the payment of the bill—he was speaking solely of the future, with the object that these intolerable burdens should not be thrown upon neutrals, who would find it impossible to discharge their duties toward belligerents, and would be driven into war as the lesser of two evils. The Shenandoah coaled at Melbourne and persons got on board her clandestinely at night in spite of the orders and precautions of Sir Charles Darling, and the lord chief justice well said:

“To hold under such circumstances that because the local police were not as vigilant as they might have been, or because under cover of the darkness men may have contrived to elude their vigilance, a nation is to be held liable for damage done by a vessel to the extent of a claim of many millions of dollars, would be to carry the notion of ‘due diligence’ to an unheard of and unwarranted length, and would be calculated to deprive the decisions of the tribunal of respect in the eyes of the world.”

Well, were we to go on with rules capable of such interpretation by future arbitrators? Was there anything unreasonable in asking the government to take steps to prevent our being made liable for any such result? It is quite clear the rules were not self-interpreting; and any one who read them for himself would put upon them an interpretation much more moderate than that of the award. Why should we fall blindfold into difficulties such as those we had just emerged from? It might be that we had cheaply purchased friendly relations with the United States; but if the rules were fatal to our neutrality hereafter, the result might be deplorable. Was it reasonable to ask for these explanations? Was it a breach of the treaty, or would it interfere in any way with our obligations? Perhaps he might be permitted to refer to what occurred a couple of hundred years ago. In 1674 we entered into a remarkable treaty with the United Provinces, enabling them to carry all kinds of things which were not contraband. It then proceeded to enumerate in minute detail everything that was contraband. In spite, however, of the careful manner in which the treaty was drawn up difficulties arose, and in 1675 the parties to it issued an explanatory declaration as to its true sense and intention. Thus, instead of waiting until a dispute arose, they, in the following year, clearly and specifically declared what was the intent and meaning of the articles. He hoped that in 1873 we should adopt a similar course with reference to what was done in 1872. To show that he was not asking for anything which was in the least unnecessary, he would call the attention of the house to what passed in the debate in 1871. First, however, he would remark that if the government were to state to the house that they thought the rules so unsatisfactory that they would not attempt to make them the law of maritime states, his task was completed, and he should have nothing more to say; but if, on the other hand, they were going to recommend them, it was necessary, as he contended, to recommend them with sufficient and accurate explanations. In the course of the debate in 1871 Sir Roundell Palmer spoke in that house with great authority on the subject of these rules, for which, not being in office at the time, he was in no way responsible. The right honorable gentleman said: “With regard to the second rule I confess when I read it first I was somewhat alarmed.” Then, on an assurance which does not cover coaling, he adds: “It would be unbecoming in me to criticise any longer the vagueness of the language in which this rule is couched, and, without doubt, this construction of it will be clearly laid before those other foreign powers who are to be asked to accede to it.”

In the same debate my right honorable friend the member for Devonshire (Sir S. Northcote) said he considered the second rule needed explanation. Consequently, it was clear that whenever it was submitted to other countries for acceptance by them, it must be accompanied by an explanation limiting it in the manner indicated by Sir Roundell Palmer. Last session it was proposed by the government itself to have a supplemental article, which was in point of fact no more than an explanation on the subject of the indirect claims. The treaty had been interpreted in a manner we had neither intended nor foreseen:

“Non hæc in fœdera veni.”

And, therefore, the supplemental article was added by way of explanation. In all the arguments adduced in favor of the treaty by the right honorable gentleman opposite, his right honorable friend near him, and other speakers, it was said that the treaty was worth nothing unless it were consecrated by being made international law. The right honorable gentleman at the head of the government remarked:

“A great concession has been made to America, but that great concession lies in this, that we have consented to go to arbitration as to whether there was any defect in the administration of our own municipal law. We have had nothing to add to claims which America was already able to establish against us out of our own mouths, while we have obtained the basis of that understanding which, I hope, will harden and widen into an international law for the benefit of the world. That treaty has laid the foundation of future advantage in the administration and action of international law.”

Could it lead to such a result unless it were made clear, distinct, and definite? (Hear.) What England, with her vast extent of sea-board all over the world, wanted was a law to which she could with certainty appeal without laying herself open to enormous and preposterous claims, as to the extent of which we know something in the past but nothing in the future. Let honorable members bear in mind that ours was a constitutional government, and that nothing could be done against property or liberty without the assent of that house and of Parliament. Were we willing to place ourselves at the beck and bidding of any foreign state, and to enact laws which were wrong in themselves, which were contrary to international law, and which would bring about the very evils they were designed to avoid? Of course we must now bow without complaint to the decision of the arbitrators, but we ought, at the same time, to provide for contingencies which might arise in the future. He could not conclude his remarks without calling attention to what Sir Roundell Palmer said in the admirable argument which he finally addressed to the tribunal at Geneva. The right honorable gentleman said:

“Rules of this nature, which could rationally be supposed proper to be proposed for general acceptance to all the maritime powers of the civilized world, must evidently have been meant to be interpreted in a simple and reasonable sense, conformable to, and not largely transcending, the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind. They must have been meant to be definitely, candidly, and fairly interpreted; not to be strained to every unforeseen and novel consequence which perverse latitude of construction might be capable of deducing from the generality of their expressions. They must have been understood by their framers, and intended to be understood by other states, as assuring the continuance and involving in their true interpretation and recognition of all those principles, rules, and practical distinctions established by international law and usage, a departure from which was not required by the natural and necessary meaning of the words in which they were expressed. They cannot have been meant to involve large and important changes, upon subjects not expressly mentioned or adverted to, by mere implication; nor to lay a series of traps and pitfalls, in future contingencies and cases, for all nations which might accede to them. Great Britain certainly, for her own part, agreed to them in the full belief that the tribunal of arbitration, before which these claims would come, might be relied upon to reject every strained application of their phraseology which would wrest them to purposes not clearly within the contemplation of both the contracting parties, and calculated to make them rather a danger to be avoided than a light to be followed by other nations.”

Sir Roundell Palmer spoke the true sentiments, not of an advocate, but of a judge, and he had confirmed his statement by what he had said within the last few days. Lord Selborne said:

“I did not offer to the tribunal at Geneva any arguments on subjects of international law other than those, which I honestly believed to be sound and correct. Nor do I suppose that the government have changed their views on account of any opinion which on the face of the award may have been expressed by any of the arbitrators. I do not hold that we are bound by any propositions which do not commend themselves to our reason and judgment with regard to the grounds of their opinion. If we continue to interpret the rules (as I think we shall) as we did from the beginning, then we shall expect from the United States a faithful and punctual observance of them according to that interpretation. Under that I do not think that we should be under the necessity of asking Parliament to arm us with any fresh powers.”

It appeared that the noble chancellor was of opinion that by such an interpretation we might secure ourselves, that we should not have to alter our municipal law, and that we should be able to act under it without coming to Parliament for new powers. If the interpretation of the award were accepted, it was easy to gather from the argument that it must be necessary to come to Parliament for powers, and yet the United States, which was equally bound with ourselves to these rules, remained under the old law of 1819, under which she could not carry out one-tenth of the propositions here laid down.

The last extract with which he would trouble the house was a statement on the part of the president of the tribunal at Geneva, little thinking how inconsistently he had acted in regard to the principles laid down in this statement. He said:

“We must beware of rendering the condition of neutrals too difficult and almost impossible. The importance of circumscribing war is a matter of continual remark, and if neutrals are to be overwhelmed with a burden of precautions and the weight of responsibility which is in excess of the interest they have to remain neutral, they will be forced to take an active part in the war, and, instead of a proper inaction, we should have an increase of hostilities.” (Cheers.)

In that form he had couched the motion which he had submitted to the house. He had endeavored to prove, and to his own feeling he had succeeded in proving, that there were principles laid down in the award which were fatal to the interests of a neutral. (Cheers.) If they were to submit these rules to maritime states, it was most important that they should go to a future arbitration upon plain and intelligible grounds. Let them look to a future, not like the past, of indefinite anxieties and prolonged troubles, such as they had gone through in connection with the American war, but to certain, precise, and definite rules by which they were ready to abide, to the honor and dignity of this country, and to the advantage of every nation, whether neutral or belligerent. (Loud cheers.)

The right honorable gentleman concluded by moving an address to Her Majesty, humbly praying Her Majesty that, having regard to the oppressive and impracticable character of the obligations, hitherto unknown to international law, which would be imposed upon neutral nations through the interpretation placed by the tribunal of Geneva upon the three rules in the sixth article of the treaty of Washington, and upon the principles of international law with respect to the duties of neutrals in connection with the subject-matter of the said rules, Her Majesty will be graciously pleased, in bringing these rules to the knowledge of other maritime powers and inviting them to accede to the same, to declare to them, and also to the Government of the United States, Her Majesty’s dissent from the principles set forth by the tribunal as the basis of their award—principles which, by unduly enlarging the rights of belligerent powers against neutrals, would discourage in the future the observance of neutrality by states desirous of peace.

Mr. W. E. Forster, who was received with cheering, said there was much in the moderate and, he need not add, the able and eloquent speech of the right honorable gentleman in which he entirely concurred, although he feared he must ask the house to listen to a few arguments why the government could not accept the motion, and why, indeed, the right honorable gentleman, after some explanations, would not, he trusted, wish to press it. He would, in the first place, touch cursorily upon one or two arguments which perhaps did not affect the main line of the argument. He understood the right honorable gentleman to say that if our municipal law had remained as it was no charge of a breach of municipal law would be made against us.

Mr. Hardy. What I said was “could be maintained against us.” I said my belief was we had not been guilty of an infraction of our municipal law.

Mr. W. E. Forster was glad of this explanation, because his colleagues and himself had understood the words in another sense. He himself believed that if our law had been at the time of the American war just as it was at present, the house would not have had any occasion for this discussion. He strongly felt that it was very much owing to the ambiguity of our municipal law that any Alabama escaped or that any of these facts occurred which induced the Americans to make these claims upon us. He must really demur to the statement of the right honorable gentleman that no charge could have been maintained against us if our law had remained as it was. The house must remember that the alteration made in the law in 1870 only made clear the act of 1819, and did not go much beyond the acknowledgment of international obligations which had been made by both nations, and, indeed, generally by the civilized world. The right honorable gentleman spoke of the act of 1870 as a very singular one, but it was the result of an investigation into all the circumstances that had occurred. It was in accordance with the report of a commission of which the lord chancellor, the honorable and learned member, (Mr. Vernon Harcourt,) and himself were members, and the act was the result of the unanimous report of that commission. The right honorable gentleman (Mr. Hardy) said that no belligerent had the right to call upon a neutral to carry out its own municipal law. But what, after all, was the object of municipal law? It was to take care that the Sovereign of the country should secure that none of her subjects should wage private war with any country with which that Sovereign was at peace, and to oblige her subjects to observe the duties of neutrals. It was to a certain extent the acknowledgment of what was the duty of a neutral, and it could hardly be expected that a belligerent would not remind the neutral of its own municipal law, and ask for its enforcement He very much agreed with the right honorable gentleman as to the true meaning of the rules in question; and as to what the Government, and he did not doubt the English nation, considered to be their true interpretation. But then came the Question were the government and the house to accept the motion as the right honorable gentleman made it? It was impossible to deny that the motion was a vote of censure upon the arbitrators. (Murmurs of dissent.) To say that the arbitrators had arrived at an oppressive and impracticable conclusion was surely a vote of censure. The resolution did not accuse them of any corrupt motive, but it was difficult to find stronger words than those which it contained. He did not doubt the power of the house to pass a vote of censure upon the arbitrators; but was that course incumbent upon them, or was it a dignified course to adopt? The treaty set forth that the contracting parties agreed to observe these rules as between themselves in future, to bring them to the knowledge of other maritime powers, and induce them to accede to them. The right honorable gentleman said that we ought to accompany these rules with the statement of their interpretation. But our present position was that, after the signature of the treaty, there was a correspondence between the two governments as to the best mode of making a joint communication of the rules to other powers. It was clear that the treaty, following the example of the declaration of the congress of Paris, looked forward to such joint communication, and the house would agree that it would be much better that there should be a joint communication than that each contracting party should send with the rules its own separate interpretation. That correspondence was interrupted by the discussion relative to the indirect claims. The last letter in that correspondence was written on our side, and it remained with the United States Government to re-open that correspondence whenever they felt disposed to do so, when Her Majesty’s government would be fully prepared to continue it. It would appear from the speech, although not from the terms of the motion of the right honorable gentleman, that he was of opinion that no time should be lost in bringing these rules before the foreign powers, coupled with a declaration that we disagreed altogether from the principles upon which the award had been made. But on that point he thought the house would support Her Majesty’s government in claiming a right to use their discretion as to the best time both for communicating these rules to foreign powers, and for asking the United States to join with us in making that communication. He thought he could claim that forbearance with an almost certainty of success, especially after the remarks which had fallen last night from the right honorable member for Buckinghamshire. He had understood the right honorable gentleman to say that this matter of the communication of the rules to foreign powers was of such immense importance, and of such great difficulty, that even if he had at once taken the reins of office it might be weeks or months before he should feel himself able to state to the country what ought to be done with regard to it. The right honorable gentleman had certainly added that when he did take any steps in the matter he should act with energy and decision. (“Hear, hear,” from the opposition benches.) He did not doubt that the right honorable gentleman would act with energy and decision on this or any other question with which he had to deal. He trusted, however, that his noble friend the foreign secretary would adopt a similar course. He trusted, however, that if the right honorable gentleman had had to conduct this matter he would have acted with prudence and not with undue haste, and would show that he was not to be carried away upon the mere impulse of the moment. (Hear, hear.) There were two or three reasons why Her Majesty’s government did not think there was any immediate ground for pressing the United States to join us at the present moment in making this communication to foreign powers. In the first place, all the engagements of the treaty had not yet been carried out, and it would be desirable to wait until those engagements were fulfilled before we proposed to take any such steps in the matter. In the next place, it certainly would be advisable to let any heat that might have arisen in either country, in consequence of the indirect claims, cool before we pressed the United States to come to this joint understanding with us on the subject of these rules. In the third place, the house must remember that the United States and England occupied at the present moment a very remarkable position with regard to the rights of belligerents and neutrals. Until the late American war the United States had always been the champion of neutrals, while this country had always been the champion of belligerents. For some time international law had been constantly varying, and had been greatly influenced by the more complete recognition of the two principles—firstly, that it was the duty of every sovereign authority to prevent its subjects from waging private war on nations with whom it was at peace; and, secondly, that the commercial rights of neutral nations should be interfered with as little as possible by belligerents. But when the American nation found itself engaged in a war for its very existence, it found that its interests almost of necessity required that it should strengthen as much as possible the rights of belligerents. It was impossible not to expect that in the course of time America would, in some degree, revert to her former position and support the rights of neutrals as against those of belligerents. Under these circumstances it was undesirable that we should press the American Government to arrive at an immediate decision with respect to these rules, and that we should give that country time to recall to its recollection the course it had always pursued during its past history. It was not improbable that the right honorable gentleman would say that the award, and the principles on which it was arrived at, as well as the interpretation which had been put upon the rules by the arbitrators, were so fatal to the rights of neutrals, and were so dangerous to the peace of the world, that we ought at once to enter our protest against them. (“Hear, hear,” from the opposition benches.) But what was our present position in relation to this subject? As regarded governments other than the United States, we were not bound by the interpretation which had been put upon the rules in the arbitration, by the principles which had been enunciated during the arbitration, nor even by the rules themselves, neither should we be bound by them until we had asked some foreign nation to accede to those rules, and until such nation had accepted them. As regarded the United States Government we were bound by the rules. They were contained in a solemn treaty, and we were therefore fully bound by them as construed according to the ordinary construction of the English language. (Cheers and counter cheers.) But we were not bound by any opinions which had been expressed with regard to those rules by any of the arbitrators. (Cheers.) We were not bound by any statements which had been made in the conference that had been held previous to the award being arrived at. Neither this country nor America was bound by any statements which had been made by Mr. Adams, who had fulfilled his duty as the representative of the American nation in this country in such a way as to lead to the supposition that if the matter had been left in his hands there would have been no occasion for arbitration. (Hear, hear.) We were not bound by the most eloquent and able statement of our own arbitrator, the lord chief justice of England, who had vindicated the principles of British law and the rights of this country with all the more power because he never forgot his position as an impartial arbitrator. (Hear, hear.) We were not bound by the arguments of our counsel, although he need not say that we were grateful for those arguments. But we were bound in honor by our own declarations and our own statements which were contained in our case, our counter case, and our summary. Was it net better, under these circumstances, to leave the matter where it stood for the present? We had agreed with America to abide by certain rules; we were prepared to abide by those rules according to any fair and reasonable construction which the English language would permit to be put upon them, and we had set forth in our case, our counter case, and our summary the interpretation we put upon those rules as applied to particular facts. What more was it desirable that we should do? Surely the right honorable gentleman did not desire that we should enter into a controversy with the four gentlemen who had signed the award?—a course that would not conduce to the dignity of this country. He could hardly believe that the right honorable gentleman intended to press this motion, which, if carried, would mean that that house thought it necessary to declare that the arbitrators had decided the question between ourselves and the United States in a perverse manner and upon impracticable principles. Such a declaration on our part would make it appear to the whole world that we were rather smarting on account of having to pay a certain sum of money, and that we desired to censure those who had decided against us. But if a vote of censure of this kind were to be passed at all, its terms should be precise, while those contained in the right honorable gentleman’s motion were not. We were not called upon in this case to enter into a controversy with the arbitrators on the subject of international law. He could imagine many reasons why the right honorable gentleman should confine his motion to the interpretation of the rules, but he must demur to the award being spoken of as in any sense an “interpretation.” It was simply a statement of the opinions of the arbitrators as to what they conceived to be the principles of international law. As to the construction put on the words “due diligence,” he quite concurred with the right honorable gentleman in regarding it as extraordinary, (hear, hear,) but it was not, he thought, to be looked upon as an interpretation of those words, but as, in reality, the opinion which the arbitrators thought fit to recommend, as what they conceived to be the principles of international law. He could understand that the right honorable gentleman might think it incumbent on the government to protest against a positive interpretation of the rules because they did not, as it might be supposed they did, admit that those rules bore the interpretation which was placed upon them. He could not, however, imagine the house entering into a dispute or controversy with the arbitrators as to what were the principles of international law. If they put upon those principles a certain interpretation, the government did not consider that they had a right to bind them to that interpretation. Indeed, they certainly believed that such a doctrine as that laid down with regard to “due diligence” would not be looked upon as an interpretation of the first and third rules. They were also of opinion that there was in the second rule nothing to prevent the ships of belligerents being in all cases coaled in our ports. They went further, and maintained that it was not the business of the arbitrators to make any interpretation whatever of the rules. The position in which they stood with respect to the arbitrators was simply that they obeyed their award, that they acknowledged the power which had been conferred on them to adjudicate on the disputes between England and the United States, and that they thanked them for their patient investigation under the circumstances. (A laugh.) After all it must be remembered that, in the course of the award, we occupied much the same position as the parties to a lawsuit, who ought not to complain of the decision of the judge unless they believed him to have been actuated by corrupt motives. But, although we might obey the decision of the arbitrators, and thank them for the manner in which they had conducted their investigation, it was not necessary to protest against any of the opinions which they might have thought tit to give, either on the principles of international law or the rules themselves, because it was not admitted that it was their duty to express any such opinions. He contended that the arbitrators had no power to decide on the principles of international law for the future, and he refused to acknowledge their authority as legislators. There was another reason why he hoped the motion would not be pressed to a division. It was no doubt desirable that we and the United States should agree on a joint communication. That was contemplated by the treaty, but the passing of the present resolution would make such a joint agreement impossible. The result of its passing would be the commencement of long and fruitless discussions between us and the United States, the object of which he could not conceive. He was ready to admit that it would be advisable to incur the inconvenience of such discussions and controversies if it could only be shown that it was the best way, or, indeed, any way at all, of avoiding being bound by the principles contained in the award. He, however, maintained that this country was in no way bound by the opinions of the arbitrators, but by the rules and the ordinary construction of those rules. He would merely add that it rested with the United States to re-open the correspondence in the matter, and that the government would be prepared, when they thought fit to do so, to endeavor to agree with the United States in so presenting the rules to foreign nations or to prevent any misconception of their true meaning, and in such a manner as to insure their being accepted by other countries in the sense in which they had been assented to by our own government and that of America. Of course, if there should be a difficulty in arriving at that joint understanding, the joint promulgation of the rules must be postponed until that difficulty had been surmounted. He must, however, express it to be his opinion that the difficulty would not be found to be insurmountable, unless the negotiations on the subject were hampered and rendered almost impossible by such a resolution as that now under the consideration of the house. (Hear, hear.)

Mr. Vernon Harcourt had hoped that the right hon. gentleman would have been able to make on the part of the government a statement more satisfactory to those who sat on the same side of the house as himself. The House of Commons stood in a somewhat peculiar position with respect to the subject under discussion. On the first night of the session the right hon. gentleman at the head of the government informed the house that the rules had been communicated to foreign nations—a statement which, however, had afterwards been set right. The chancellor of the exchequer also stated that we were under treaty obligations at once to communicate those rules without note or comment—to use the phrase employed by a public journal in commenting on the language of the right hon. gentleman the next day. Now, the right hon. gentleman who had just spoken had told the house that they ought not to pass the resolution before them, because it would amount to a censure on the arbitrators. He must, however, protest against the House of Commons being treated in that way. (Hear, hear.) They had heard a little too much lately about votes of censure. (“Hear, hear,” and a laugh.) The arbitrators might not, perhaps, be able to resign; he didn’t see how they could, but if they could they might not find themselves in a very much worse position soon after. (A laugh.) But be that as it might, votes of censure were not, it was quite clear, such formidable things after all, (a laugh;) and if the House of Commons was not to pronounce an opinion on our foreign relations because, in doing so, it might displease some parties abroad, what, he should like to know, was to be thought of the position of the house as managing the affairs of this great nation? (Hear, hear.) He was one of those who held the opinion—and he was ready to take on himself a portion of the blame—that the House of Commons too much abdicated its functions, and that if it had evinced more courage at an earlier stage of those discussions the country would not be placed in the difficult position in which she now found herself. (Hear, hear.) His right hon. friend, the vice-president of the council, said it was not desirable to enter into a controversy with the arbitrators, but such language showed a most extraordinary misapprehension of the resolution. The resolution did not propose any such controversy. We were, of course, much obliged to the arbitrators for the pains they had taken, and the resolution did not ask the government to address them, but foreign governments. He would also remind his right hon. friend that it was an entire misapprehension of the whole character of international law to say that we had nothing to do with the opinions which the arbitrators had pronounced. What was international law? It was constructed out of the precedents furnished by great transactions. That with which the house was now dealing was a great transaction, and the opinions of the arbitrators upon it constituted part of that great mass of precedents by which international law itself was constituted. It was a question, therefore, upon which it became necessary that the opinion of the House of Commons should be pronounced, and it had, he believed, been brought forward by the right hon. gentleman opposite in no party spirit. That was no question for party. (Hear, hear.) It was a question in which all parties alike were interested; and not only the future destinies of this country but the peace of the world was involved in the issue. The right hon. gentleman opposite the other night said that was a much larger question than that of Irish University education; and it was a larger question exactly in proportion as nations were greater than colleges, and as mankind was greater than the class of undergraduates. (Laughter.) Now, he did not object to that transaction because he objected to the principle of arbitration. That was a principle which he always had and always would, to the extent of his humble ability, advocate and promote, believing that it was for the highest interests of civilization that the rule of reason and of justice should be substituted for the barbarism of war. Arbitration, he thought, never could supersede diplomacy; he hoped it would be in the future to a greater extent than it had been in the past, the handmaid of diplomacy. It might, and he hoped it would, be made the great peace-maker of nations. But it was necessary, in the interest of the great principle of arbitration, that they should in some form or another express their dissent from the doctrines of that award. That award, which assumed to settle existing quarrels, in fact sowed the seeds of further quarrels; it bred more dangers in the future than it could have averted in the past; and in his opinion it would be a fruitful source of universal dispute. Instead of circumscribing, as it ought to have done, the area of war, the doctrines which it laid down were such as must extend the area of war by discouraging, as the present motion said, the practice of neutrality. Therefore he could not but regard the doctrines of that award as resembling the Anarch spoken of by Milton, who “By decision more embroiled the fray.” (A laugh.) Let them disengage, if they could, the cause of arbitration from those doctrines, and endeavor, for the sake of the principle of arbitration, to defend its character against that most unfortunate miscarriage; let them endeavor to satisfy themselves and the world that arbitration did not necessarily involve in its consequences the promulgation of unsound principles and the establishment of dangerous precedents. (Hear, hear.) He had the honor to receive that week two communications from abroad—the one from a gentleman coming from the United States, bearing letters from one of the most distinguished American jurists; the other a long paper from a very eminent Belgian jurist; and both communications invited the cooperation of students of international law in the cause of arbitration. The only answer he could give to them was that there never was a time less encouraging for such a project than the present, in consequence of recent events. There was some reason to believe that the opinion of American jurists on the doctrines laid down in that award were not very different from those entertained in this country. It was not because the sentence had been given against us that he made these objections, for, as the motion pointed out, what they protested against was not the decision itself, but the doctrines which were to bind them in future, as they would be bound, unless they protested against them, as connected with those rules. He had always thought that upon the old rules of international law in the case of the Alabama this country might have set up and established a justification, but he had never wished that we had succeeded in establishing such a justification. He had believed that precedent was injurious to England, and thought the case itself was of evil example to mankind. (Hear, hear.) Therefore, he had never been desirous that there should not be new rules laid down in that matter. There could be no doubt that the state of international law on the subject was most unsatisfactory. International law, as he had ventured to say, was a law of public opinion of states. It was very much like our constitutional law, where the limits of powers, theoretically independent, were practically settled by precedent and opinion; and although, on the ground of its very nature, it could never be made the subject of rigorous codification, at the same time where they had disputed points which had frequently led to difficulty they might—as they did in the declaration or Paris, and as they attempted to do under these new rules—endeavor to settle difficult points, and bring them to some clearer and more definite understanding. Therefore, he had not objected to the principle of laying down some new rules in such a case. Neither had he objected—on the contrary, he had sought to defend—the giving to those rules even a retrospective effect; and for this reason, that although there was a popular and, perhaps, not unnatural prejudice against the retroactive operation of laws of any description, if they desired to modify the law of nations—and it was impossible to say that those rules were not intended to modify the law of nations; in fact, there was a specific article in the treaty which declared that they had modified it—if they desired to modify the law of nations, they could not expect the United States to join them in that modification, unless they gave that country the compensation of the retrospective action of the rules. The indemnity we paid in respect to the retrospective action of the rules was, in fact, the consideration we gave to obtain, in a matter of great consequence to ourselves, a clearer and more decided law in future, and this he had always thought justified the government in the course they took on that point. Therefore, he had regarded it as a statesmanlike arrangement, and one deserving the support of Parliament. He did not complain, then, of the rules because they were new, nor because they were retrospective in operation; but then it was essential that they should give precision to the law, and, unfortunately, that was exactly what they had not done. (Hear, hear.) They failed in fulfilling the condition for which alone it was justifiable to have new rules at all. So far from making the law of nations clearer and more definite, they would deeply compromise the future interests of peace; and, therefore, we had lost the very consideration which alone made it worth while for us to give to America the indemnity to which he had referred. (Hear, hear.) He did not want to be too severe in his criticism of those rules, and, therefore, would only say they appeared to have been drawn about as accurately as an average modern government bill. (A laugh.) They had evidently puzzled the judges abroad quite as much as some acts of our Parliament of late years had puzzled the judges of Westminster Hall; and if the judges abroad had come to a conclusion exactly opposite to that which was intended, why that was only what was occurring every day in our own domestic legislation. (“Hear, hear,” and laughter.) How had that arisen? They had been told, and it was a very singular fact, that the government never had, in this country at least, a professional opinion on those rules. The attorney-general had told them he had never seen the Washington treaty, and that the opinion of the law-officers of the Crown had not been taken on that treaty or on the rules. This was a very different course, he believed, from that adopted by former governments, for in the great difficulty in which England was placed by the Trent affair, not merely was the opinion of the law-officers taken, but certain persons, at least one person, eminent for a knowledge of international law, was sent for by the cabinet and consulted by them. Therefore, as regarded the Washington treaty and the rules, the government was inops consilii as far as the law of the case was concerned. (Hear, hear.) He would say nothing against the commissioners at Washington, who, in his opinion, were not responsible; and nothing could be more unfair than to lay the blame on the wrong shoulders. He had heard the most undeserved censure passed upon them. He had the honor of the acquaintance, and he hoped of the friendship, of Mr. Mountague Bernard, and he ventured to say that there was no jurist in or out of England who was more competent than that gentleman to deal with such a matter. But what the experience of that case had shown was the great imprudence of attempting to settle the law of nations by the electric telegraph. (“Hear, hear,” and a laugh.) It had been said of the celebrated Queen of Bohemia that misfortune came upon her because she “would be a Queen.” He thought that misfortune had come upon our government through their saying that they “would have a treaty.” (“Hear, hear,” and a laugh.) It might be asked, why did he say these things now, and why had he not said them before? Well, he had felt an almost invincible repugnance to the idea of interfering with a treaty in its progress. He felt the responsibility of interposing any obstacle to a settlement with America, but he felt that we had committed a mistake, and that had the matter been more fully discussed in the house our position would have been better. So impressed, however, was he with the ambiguity of the second rule, and with the conviction that it pronounced against the view taken by Earl Granville in his discussion with Count Bismarck as to the supply of munitions of war to France, that he should have felt it his duty to call attention to the subject, had he not found that Sir Roundell Palmer was equally impressed with the danger, and had undertaken to bring it before the house and the country. The right honorable gentleman opposite (Mr. Hardy) had quoted Lord Selborne’s subsequent reference to it, but he would cite Sir Roundell Palmer’s question and the prime minister’s reply, for they formed an irrefragable justification for this motion. The question was one of the class well described as “arranged” questions, and was in these terms:

“Sir Roundell Palmer asked the first lord of the treasury whether the second rule in Article VI of the treaty of Washington is understood by Her Majesty’s government as prohibiting the use of neutral ports or waters for the renewal or augmentation of military supplies or arms to a belligerent, only when those acts are done for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against another belligerent; and not when military supplies or arms are exported for the use of a belligerent power from neutral ports or waters in the ordinary course of commerce; whether any steps have been taken by Her Majesty’s government to aseertain that the rule in question is understood by the Government of the United States in the same limited sense; and, if so, with what result; and whether it is intended, in any communications which may be addressed to foreign governments with a view to the general adoption of this rule, to guard against its being accepted or understood in any larger sense.”

Thus a new rule intended to make everything precise was so ambiguous as to lead one of the greatest living jurists to put this series of questions, and what was the prime minister’s reply?

“With reference, sir, to the first part of the honorable and learned gentleman’s question, I perceive that it has been framed with great care, and having considered our reply with equal care, while avoiding entering into any of the details of the question, I am in a position to answer this part of the honorable and learned member’s question in the affirmative. In answer to the second part of the honorable and learned gentleman’s question, I may state that we have had an opportunity of communicating with Lord De Grey, with the right honorable gentleman opposite, (Sir Stafford Northcote,) and with Mr. Bernard, on the subject, who have all of them given us the fullest assurance that the understanding referred to in the first part of the honorable and learned gentleman’s question is that of the United States in reference to this matter; and further, that it has been in our power to communicate with the distinguished gentleman who has arrived in this country as the representative of the United States, who was a member of the joint high commission—General Schenck—who has informed Her Majesty’s government that such was his understanding also of the meaning of the rule in question; and, indeed, we have been told by that gentleman that the President of the United States himself understands the rule in that sense, and that the latter would himself be the first not only to admit and allow, but to contend for, that construction of the rule in question. With regard to the third part of the honorable and learned gentleman’s question, I am able to state that Mr. Fish, the United States Secretary of State for Foreign Affairs, who was also one of the commissioners, has expressed an opinion that it would be advantageous if the two governments were to make a joint declaration which should place the meaning of this rule beyond all chance of misconstruction.” (Hear, hear.)

The rule, therefore, had not been made a week before it became necessary, in the opinion of both governments, to have an explanatory document, and he supposed, if the intention expressed by Mr. Fish was carried out, that such a document existed, for these words were uttered on the 12th of June, 1871, more than a year before the arbitration commenced. The prime minister went on to say:

“I believe that communications have been entered into between some of the British commissioners and some of the United States commissioners and other distinguished authorities in America on the subject, and that they have also come to the conclusion that it is impossible to entertain the slightest doubt but that the meaning to be attached to the terms of the treaty is that which the contracting parties themselves attach to them.”

A more unsatisfactory condition than that revealed by this question and answer could not be conceived, for it was evident that the kettle leaked before it was put on the fire at all, (a laugh;) the ship was not seaworthy at the time it was launched. Sir Roundell Palmer had not, however, anticipated the full effect of this position till he got to Geneva, when he made the striking and eloquent protest quoted by the right honorable gentleman opposite, urging that the rules were intended to be interpreted with reference to the principles of international law. What was Mr. Caleb Cushing’s reply? The right honorable gentleman had spoken of England as having an admittedly constitutional government; but, according to Mr. Cushing this was a mistake, for Mr. Cushing regarded Italy, Brazil, and the United States as constitutional countries, but held that England could not come within that category, Parliament having an arbitrary power of trying a king, changing a dynasty or a religion, and confiscating the goods of a church, (Opposition cheers,) powers which he deemed characteristic of despotism. Mr. Cushing’s reply to Sir Roundell Palmer’s protest was that it was too late to enter on the question of what outside the treaty constituted “due diligence,” and on the vague region of international law, and that he took his stand on the explicit words of the treaty, which subordinated international law to the compact of the three rules. The arbitrators apparently acted on the view of Mr. Cushing, not on that of Sir Roundell Palmer, and the award embodied three of the most dangerous principles ever attempted to be incorporated with the law of nations. Indeed, as regarded the motion, this was an undefended case, for his right honorable friend (Mr. Forster) had not said a word in defense of any of the doctrines of the award. (Hear.) If, as laid down in the award, coal must not be supplied because a vessel could not sail without it, sails, masts, and indeed even water must likewise be forbidden, as also making a neutral country a base of operations. How was such a rule to be executed? An exciseman would have to be stationed in every ship to see that no article was supplied to a belligerent vessel or even exported in order to be put on board such a vessel. It was idle to say that this was not the consequence of the second rule. The casting vote of Count Sclopis in the case of the Shenandoah was expressly given under that rule, and, in his judgment, in the case of the Florida he also dwelt on the question of coal. Mr. Adams was extremely cautious not to commit himself on the subject of coal, as would be seen by reference to the Blue Book, and the infinite danger we incurred under the award was shown by the fact that on the very last day the arbitrators sat, Viscount Itajuba, who had signed the award, entered a protest against the doctrine of coal, because he wished it to be understood that it was safe to supply coal in some quantities, showing that under the award it could not be supplied at all. But the article went further; it went to the whole doctrine of what constituted a base of operations, and extended that doctrine to every transaction whatsoever that could be entered into with respect to a belligerent vessel. Therein lay the infinite danger of the doctrine, and it extended not only to vessels like the Alabama, but to the commissioned ships of the oldest established nations in the world. It applied to the French fleet and to the British fleet. Suppose there was war between France and Germany, and that the French fleet coaled or watered at Heligoland, the German government would have a right to make us responsible for everything that occurred in consequence. We could not be safe under these circumstances unless we forbade the exportation, he might almost say, the trade in coal altogether, not only in England, but in every part of the Queen’s dominions. Why, they were about to pay in the case of the Shenandoah a million of money for the acts of officials in Australia over whom the government of England had no control whatever. (Hear, hear.) Could anything be conceived more fraught with danger to us than such a doctrine was? He passed to the second point—the doctrine as to commissioned vessels. That doctrine it was impossible for a civilized nation to receive. If the arbitrators had taken the wise and prudent course of laying down the principle that a vessel illegally armed originally ought to have been excluded from the ports of that country from which she had obtained her armaments, they would have enunciated a principle which, though not established in international law, was wise in itself and might be received by civilized nations. But what they said was, that under the first rule commissioned vessels of war were to be seized and their departure prevented. It was true that Sir Roundell Palmer and Sir Alexander Cockburn said that was not what the rule meant. But the rule was so ambiguous that it did not exclude such a construction, and the arbitrators placed that construction upon it. His right honorable friend, the vice-president of the council, had asked why in the world they should be in such a hurry to do anything in this matter. Why, a war might break out in Europe to-morrow, and commissioned vessels of one or other of the belligerents might obtain coal or water in one of our ports. Under the rule they were bound to seize such vessels, but under the foreign-enlistment act of 1870 they were bound not to seize them. What would be the position of England if one belligerent demanded that, under the rule, the vessels should be seized, while the other, to whom the ships belonged, demanded that, under the foreign-enlistment act, they should be let go free? (Hear.) How could they escape a quarrel under such circumstances? If they were not going to condemn the rule, then they ought at once to suspend the standing orders of the house and repeal the thirty-second section of the foreign-enlistment act. Let them try to conceive a British fleet coaling in some neutral port, if we were at war, and the neutral power being told that their duty was to seize the British fleet. (A laugh.) If there was war between Germany and France, and the French fleet had coaled at Heligoland and then proceeded to the Downs and anchored there, Germany might demand of us to seize the French fleet, and proceed at once against them. And this was the doctrine that was to contribute to the peace of nations. (Hear, hear.) He now passed to the question of “due diligence.” He admitted that the phrase was an ambiguous one, and one difficult to define; but what he complained of-was that the arbitrators had attempted to define it, and had given it a wrong definition. They said that the diligence was to be proportionate to the risk of the belligerent. (Mr. Forster. Exactly.) His right honorable friend reminded him of a word he had omitted. It was to be exactly proportionate to the risk of the belligerent. (Hear, hear.) What did Mr. Adams say upon that point? Speaking of due diligence, he said:

“This may naturally grow out of the great difference in the relative positions of the two belligerents, which ought properly to be taken into consideration. In the struggle which took place in America ‘due diligence’ in regard to the commercial interests of one of the belligerents meant a very different thing from the same words applied to the other.” (“Hear, hear,” and a laugh.)

That was a true commentary upon the doctrine of the award, and that was what each belligerent would say if this doctrine were allowed. “My commercial interests,” they would each say, “are very different from those of my adversary. You must, therefore, carry out the law on a totally different principle with respect to him and to me.” The true rule was impartiality of action. They could not attempt to reach equality of result. (Hear, hear.) That had always been the principle of international law. They could not enter into the constantly varying circumstances of the belligerents, but they could he perfectly impartial in their action to both, and leave the result to be what it might. Each and every one of those doctrines violated some cardinal principle of the law of nations, and by each the position of neutrality was made absolutely intolerable. But his right honorable friend said they were not bound by the doctrines of the award. He replied that if they did not protest against them, they were necessarily bound by them. (Hear, hear.) The chancellor of the exchequer said the other night that the position of the arbitrators was not judicial. He thought the right honorable gentleman was wrong in that opinion. The treaty declared that they were to find with reference to each ship according to the law of nations, and according to the rule agreed upon. Anything more judicial than the position in which the arbitrators were placed, it was not easy to conceive. But then it was said that one case did not bind another, and that was true in reference to municipal law. When, however, they came to deal with international law, how did they argue? Why, they referred to the decisions of Lord Stowell, Chief Justice Marshall, or Chancellor Kent, as hereafter, if they were not now repudiated, nations would refer to the principles laid down at Geneva, and rely upon them in support of their claims and arguments. (Hear, hear.) They could not separate the award from the rules. Like Coke upon Littleton, they were one. They might be likened to the Siamese twins. If you endeavored to disjoin them you must kill one, and probably would kill both. In one form or another it behoved the House of Commons to repudiate the doctrine of the award. (Hear, hear.) If they did not, the condition of neutrals would be intolerable. They should do it now in time of peace, for in time of war it would be too late. If, however, they took that step now, and a war arose in Europe six months hence, should a claim be made against them they could point to the fact that they had not accepted, but on the contrary had protested against the principles of the award. (Hear, hear.) When he heard the right honorable gentleman speaking on the question of conciliation there came into his recollection a great speech, one of the greatest on international law which the records of Parliament possessed; he alluded to a speech by Lord Grenville upon the great maritime treaty of 1801. The right honorable gentleman the member for Bucks, the other night, made a claim which, speaking from the liberal side of the house, he could not altogether yield. The right honorable gentleman claimed a monopoly of Lord Grenville for the conservative party, but he could not help thinking that the right honorable gentleman might have remembered the fact that Lord Grenville declined to join Mr. Pitt in his last administration because Mr. Pitt was not in a position to take Mr. Fox into the government. He therefore thought it would be a fair compromise if the right honorable gentleman would permit the reputation of Lord Grenville to be equally divided between the two sides of the house. (“Hear, hear,” and a laugh.) Lord Grenville, then, commenting in 1801, at the time of the peace of Amiens, upon the treaty with Russia, said:

“Conciliation is, indeed, desirable. It is so always, and it is now indispensably necessary as our last resource against certain and imminent danger. But to conciliate by the surrender of just rights and of essential interests, to purchase present ease by the sacrifice of future strength, is a system which all experience and all history have condemned, a system not less impolitic and ruinous in its effect than it is weak and disgraceful in its principle. But in the present case one sentiment alone can prevail both in Great Britain and in Russia. The desire of every friend of peace and every lover of justice throughout the world must be the same. All must concur in wishing that a precise and unequivocal arrangement on all the matters to which this treaty has relation may confirm and strengthen the dispositions of friendship between those to whom Europe still looks for its preservation, and may stifle the seeds of every possible difference which could either interrupt their present harmony or embarrass their future exertions. By loose and uncertain stipulations on these important cencerns no interest is promoted, no right is asserted, no principle is finally established. From ambiguity and doubt confusion and discord only can arise.”

This was language worthy the greatest foreign minister whom, he believed, England ever possessed; and if they were to repudiate these uncertain and ambiguous principles, in what way was it to be done on the present occasion? They could, but would they protest against the rules? The lord chief justice of England had already done this in the masterly document he had drawn up. The right honorable gentleman the chancellor of the exchequer, the other day, took him to task for saying that the lord chief justice was upon the Geneva arbitration the representative and the vindicator of the honor and the conduct of England, and it was further alleged against him (Mr. Harcourt) by the right honorable gentleman, that he had imputed to the lord chief justice conduct inconsistent with his position. It was, however, a singular fact that the lord chief justice had since received the thanks of the Queen, which were directed to be presented to him by the foreign minister on the express ground that he had seen to the interests of England upon the arbitration. (Hear, hear.) Further, the lord chief justice was directed in another part of his instructions to defend the character of Lord Russell, which he also did in the document to which he had just referred. What he would suggest that Her Majesty’s government might do would be to send the rules to foreign countries accompanied by the judgment of the chief justice, and say that the judgment expressed the views of the government on the matter. The only difficulty about this was that the judgment of the chief justice commenced with something like a condemnation of the rules themselves, and that might introduce difficulty and confusion. (“Hear,” and a laugh.) What, then, were they to do with the rules? They had never held water from the first. The question addressed by the prime minister to Sir Roundell Palmer, and to which he had already referred, showed that the rules were considered unsafe and required to be explained in order to be understood, and carefully guarded in order that they might not be dangerous. The experience of the arbitration had shown that they had grown more leaky than ever. The rules could not be patched, and were not worth mending, but were, as matter of fact, a piece of careless juridical slip-slop. (“Hear,” and laughter.) The best thing Her Majesty’s government could do would be to withdraw them and ask the concurrence of the United States Government in such a course. (Hear, hear.) And he thought there would be no difficulty in obtaining this concurrence. (Hear, hear.) They might depend upon it that the United States was no more fond of the doctrines laid down in the award than the government of Great Britain could be. Let them apply diplomatically to the United States Government, after due consideration, to draw up rules which should be worthy the occasion and worthy the object for which the rules were originally drawn. There were great jurists in this country in the persons of the lord chief justice and the lord chancellor, and he ventured to say that the opinions of Sir Roundell Palmer were the opinions of the lord chancellor. In America there were jurists worthy the school of Marshall, of Story, of Kent, and of Wheaton; and he had no doubt that if America were properly applied to, her Government would assist in the drawing of rules which could be offered without explanation or protest to the acceptance of the world. (Hear, hear.) The policy of the United States had always been a policy of neutrality from the time of Washington downward, and they had never been driven out of it except by the exigencies of civil discord. In fact, he thought they had gone a little too far in this direction, and that England ought never to yield the law of blockade and the right to capture private property at sea. (Hear, hear.) They made great concessions to neutrals in the declaration of Paris, and those concessions had worked satisfactorily; but, unfortunately, the tendency of the rules under the treaty of Washington had been to reverse the whole stream of civilization by putting neutrals into a position where a condition of neutrality was intolerable. He was firmly convinced that if the rules were passed into the law of nations there would be no condition endurable for any state except the condition of an ally, and when a war broke out there would be no condition for any government to consider except which should be the side it was to take in the coming war. This legislation seemed to be a legislation against the principles of neutrality and dangerous to the future prospects of peace to mankind. With that conviction, totally irrespective of any consideration of parties, he felt bound to vote for the motion of the right honorable gentleman the member for the university of Oxford. (Cheers.)

Mr. Rathbone said he could not but think that the motion before the house entirely ignored, as our statesmen had been too much in the habit of ignoring, the greatest danger which threatened the maritime greatness of England, as well as the direction which the efforts to avert that danger should take. During the last American war a few Alabamas practically drove the flag of the second maritime power in the world from the seas. It was not so much the seventy ships which the Alabama sank or burnt at sea that did this. It was the fact that by so doing she deterred shippers from shipping in American bottoms, and thus compelled the American ship-owners either to lay up their valuable ships or to make a forced sale of them to foreigners. (Hear, hear.) The danger which the motion was framed to guard against appeared to him to be unreal. There was very little danger that other nations, and least of all America, until recently the advocate of the extreme license of offensive neutrality, would insist upon maintaining rules or interpretations of international law enforcing too strict an observance of the duties of neutrality. There was, on the other hand, the very greatest danger—nay, the certainty—that the naval greatness of England, as far as it was dependent on her mercantile marine, would receive a fatal blow in the first war in which she was engaged, unless she availed herself of the peculiarly favorable position in which the treaty of Washington and the arbitration of Geneva had placed this country for supplying pre cautions which were neglected in the declaration of Paris. He urged on the house and the government that it would be fatal not to guard against the dangers to which the precedents of the late American war, coming after the treaty of Paris, had exposed the maritime greatness of England. By the opening of the Suez Canal, England had lost in the trade with the East what was previously the advantage of her geographical position. Now the commerce of the East to Europe would naturally stop at Odessa, Trieste, and Marseilles, instead of coming on to England to go back to Europe. Everybody prophesied that this would be the case; and it was only the energy and enterprise of our ship and steamboat owners, backed by the great capital of England, which had enabled this country to maintain, as it had so far done, its mercantile and maritime position in those waters; but if we permitted, as we were in danger of permitting, a large portion of the mercantile marine of England to be transferred to other countries, would it be possible to recover such loss of our position against the additional geographical difficulities with which we should have to contend? Liverpool, London, Hull, and Newcastle were now the head-quarters of the great maritime companies into whose hands so much of the carrying-trade of the world was passing. But when, under the influence of numerous Alabamas, we had changed the points of departure for. eastern fleets, and Marseilles had taken the place of Southampton, and so on, would it be possible to recover this? Would it be possible to dispossess foreign maritime nations when they had once got hold of a trade so naturally their own? The motion regarded only the effect of the Washington rules upon us when we were neutrals. But they must also be considered in respect to cases in which we might be belligerents. It appeared to him that to us as neutrals they were no intolerable burden, and that to us as belligerents they were exceptionally favorable, and even vital, to the interests of our marine and commerce in the event of war. These rules only threw upon us the duty of enforcing our own laws as they now stood with the same business-like diligence which we should certainly use if our own interests were directly at stake by the fitting out of a ship in our own ports for the purpose of attacking our own commerce; and unless we could obtain this justice from other nations our carrying-trade must pass, and to a very considerably extent irrevocably pass, into the hands of other nations on the first war. So long as neutrality was imperfect its violations were always likely to irritate a belligerent to declare war against a neutral. In the late American civil war we were very near (few who were unconnected with America knew how near) affording a most fatal proof of this. Did the remonstrances and threats of the Northern States incline us to declare war against them? Bat he would point out the danger of war which we ran after the treaty of Paris, and after the escape of the Alabama, but before the award of the Geneva arbitrators. Was it not evident that not only Russia but even the minor powers thought they might hold an offensive tone toward England, because they believed, most erroneously, that she would not go to war while America was watching to avenge the escape of the Alabama? Would Russia have abrogated the Black Sea convention in the abrupt way she did had she not entertained this idea I Was not, then, that erroneous idea just the very thing to lead to war? Before the declaration of Paris, in 1856, England in her twofold capacity of possessing the greatest naval power in the world, and of possessing the largest mercantile marine in the world, claimed and exercised not only enormous power of crippling the commerce of any nation which might be at war with her, but also of protecting and carrying on her own commerce. The declaration of Paris deprived her of most of the power of crippling the commerce of another country, and of most of the power of protecting her own mercantile marine in the enjoyment of their commerce. Now, the rights claimed by England frequently brought her into collision with neutrals, and occasionally into war with them, and therefore it was wise to abandon them. But just compare for a moment the position which other countries and the position which this country occupied before the declaration of Paris with the position which they now respectively occupy. Before the declaration of Paris we claimed and exercised the right of capturing ships and cargoes belonging to any enemy under any flag, and practically our great naval force gave us the power of almost annihilating the commerce of our enemy. By the declaration of Paris we surrendered the right to interfere with the commerce of our enemy, except by an effectual blockade, or when carried on under its own flag. What, then, would now happen to our enemy in case of war? Simply, it would carry on its commerce under neutral flags, and sell its own ships to neutrals, which most nations would be enabled to do without too great a sacrifice; because the number of ships owned by any nation, except England, were not of greater value than capital available for ship-owning could be found to purchase. The house would see at once, therefore, that our power of injuring an enemy was enormously reduced; and, indeed, except as regarded blockade, was perfectly insignificant as to any possible effect upon the resources of an enemy, and, consequently, upon its power or willingness to go on with the war. Now, what was formerly the position of England in a war, and what would its position be now? Formerly cargoes were liable to seizure wherever found, and under whatever flag they were shipped. It therefore was the custom to ship in British bottoms, and to wait for a British convoy, which our great naval power enabled us to give. Now, if shipped under a neutral flag, our commerce would be free from capture, and, as long as any neutral ships were available, no one would wait for a convoy in order to ship in a British ship any valuable cargo; for, in addition to waiting, he would have to pay a higher premium for insurance than he would pay in a neutral bottom. Therefore, as every ship-owner knew, the days of convoy were absolutely at an end. And if the precedents of the Alabama and the Florida could not be guarded against; if ships of war could be fitted out and allowe to sail from neutral ports to prey upon the commerce of England, every practical ship-owner knew that the mercantile marine of England would be driven from the seas. A certain small portion of her ships might find employment by carrying cargoes of small value on which the rate of freight was of more importance than the rate of premium of insurance. For a time a certain portion of her ships would he necessarily employed, because there would not be neutral vessels to do the work. But the greater part of them would have to be laid up or sold at a ruinous loss to foreigners, for we could not continue to carry on a trade in which our ship-owners would be at a disadvantage of more than 30 or 40 per cent. as to net results as compared with foreign ship owners. When America was at war the quantity of ships which she had to sell found a fair market without any ruinous reduction of price, because the number was not excessive, and the ship-owning power and capital of England were there to buy the ships. But who is to buy the enormous mercantile marine of England? (Hear, hear.) You would have to offer ruinous concessions to induce people to do so. So that the loss of England would not only be on a much larger amount of property than the loss inflicted by such a process upon any other country, but the proportionate loss on every pound would be greater. Perhaps he should be told that the American navy was entirely engaged in blockading, and, therefore, did not care to catch the Alabama, and that our immense naval power would be able to give a good account of any such attempts in future. Now, he quite admitted that our navy would be able to give a good account of the navies of any other nation; but if Alabamas were to be allowed to be fitted out in neutral ports, he believed that the protection of our commerce would be beyond its power. We should have to deal not with one, two, or three of such vessels; and the style of vessels which we were now building for the defense of our shores and for naval warfare were entirely unsuited to perform the minor duties of the police of the sea. Captains and Warriors were too expensive and cumbrous to do the work of catching Alabamas. It would require an immense number of light ships of war, especially built for the purpose, to perform this duty. Steamers could now be built with such small consumption of fuel that they could keep the seas without coming into port for months and months; and unless such a steamer comes into port how were you to find her? She would appear, say, first in the track of the Atlantic trade, burning or sinking half a dozen ships, and putting their crews in the last vessel captured; and then, before that vessel could reach a port and give the alarm, she would be half way to the Pacific Ocean, capturing on her way some of our eastern mercantile fleet; and before betraying her position there be in the Pacific. It was not the number of vessels destroyed; commerce was very sensitive; the margin for profit in ship-owning was not large, and by enhancing rates of insurance it would compel the laying up or the sale of the ships. He need not attempt to show that the maintenance of our mercantile marine is essential to the maintenance of our national greatness as a maritime nation; but he thought he had shown the immense loss which would be inflicted upon England by the precedents of the late American war, unless they were canceled by the new rules of maritime international law which had been laid down, and which he hoped would be adhered to. The Washington rules simply adopted the principles which we adopted in the foreign-enlistment act of 1870, and made them internationally binding. They were wholly in our favor as compared with any other country, in proportion as our marine and commerce were the greatest. No country had so much to gain by their enforcement; none had anything comparable to lose by their neglect. The real question was whether we were to sacrifice this safety, which we had obtained after such tedious negotiations and at so heavy a cost, and which only the exceptional circumstances of America had given us the chance of obtaining, in order that exceptional profits might be made in a few ship-building yards, in violation of the intention of our own laws. As a practical man of business, he would say a word upon the well-meaning but fallacious arguments which have been used by great statesmen and lawyers about protecting our manufactures. Nobody built a ship of war on speculation. There were too few customers for such an article, and it was perfectly easy for any man who was building a ship of war for a nation with which we were at peace to give indubitable evidence that he was so doing. In following the shibboleth of non-interference with trade and manufactures we were in danger of licensing the building of pirates. It would have been better, in the interests of peace and of all great maritime countries, especially Great Britain, to extend the declaration of Paris so as to protect from capture all private ships and goods, except in the case of an attempt to force a blockade, or in the case of actual military necessity. But it would be madness to throw away an interpretation of international law which, though for the moment against us, seemed contrived for our special benefit in the long run. Having felt the inconvenience of an abuse of neutrality, the Americans had contended for the strictest precautions against such abuse in the future. We, on the other hand, had found ourselves in the unusual position of wishing to limit belligerent rights, and of feeling the difficulties of neutrality. Next time our positions might be reversed. He thought he detected in the cautious manner in which the leader of the opposition alluded to this subject last night a warning to those who might not see as far as he did during the late American war. He trusted the opposition would imitate that patriotic and statesman-like forethought which he so conspicuously displayed throughout the whole period of the American war, and for which this country ought forever to be grateful to him. n conclusion, lie entreated the government, in the interests of peace, not to lose the present favorable opportunity of inducing other nations to concur in the adoption of rules that would prevent practices which had never abridged war a single day, but which, on the contrary, tended to increase its evils and to extend its area. Such a course would be not only just and humane, but in the end would prove to have been statesman-like.

Mr. Gregory said that the honorable member who had just sat down had treated the question purely from a commercial point of view, but it was one of much wider scope and much greater importance. It was a question which involved principles of right and wrong, of peace and war. He ventured to say that there was no such mutuality of advantage to be derived from the award as was maintained by the honorable gentleman. This country possessed ports and estuaries not only at home, but in every portion of the globe. In these ports and estuaries vessels might be equipped, and from them expeditions might sail which might bring us, in spite of all we could do to maintain our neutrality, within the terms of the award, and expose us to the claims of belligerents. And here he could not help expressing his surprise at the way in which Her Majesty’s government proposed to meet, or rather to avoid, the issue raised by the right honorable gentleman, the member for the University of Oxford. He should have thought that Her Majesty’s government would have been glad to take on this subject the opinion of the country as manifested by the House of Commons, and he could not but believe that if they had done so at an earlier period of the negotiations which had led to this treaty we should have heard but little of the disputes in which we were now involved, and which had occupied our thoughts during the last session of Parliament. What he understood the right honorable gentleman (Mr. W. E. Forster) to say was, that Her Majesty’s government had entered into a correspondence with the Government of the United States with a view to some joint agreement as to the rules, and that this correspondence had now ceased and was in abeyance. But that seemed to be very much the position in which this country was placed at the time the negotiations failed between Lord Derby and Mr. Reverdy Johnson, and he could not help thinking that if at that period this house had been taken into the confidence of Her Majesty’s government a treaty would have resulted very different in its terms from that which had been imposed on us. He had been still more astonished by the statement of the right honorable gentleman that the arbitrators in their award had not interpreted the rules laid down in the treaty. It appeared to him that they had not only interpreted the rules in terms, but had gone still further by applying those rules to their award, and condemning us to heavy damages. He could not conceive any stronger interpretation of a principle than its application to individual circumstances. The honorable gentleman then related in detail the history of the Shenandoah, for which we had been condemned in damages to a large amount, because the authorities of Melbourne, with the limited police at their disposal, found it impossible to prevent an abuse of their hospitality by the captain of that vessel. The government of Melbourne was a distinct and independent government, and yet the people of this country were held liable for its omissions, if omissions they could be called. The act of 1870, coupled with these new rules, had imposed on us fresh liabilities of the most onerous character. The building and equipping of a ship had now been put into two distinct categories, and both were made liable to penalties, even to the forfeiture of the ship. Under the 13th section of the act the supplying to any belligerent ship in our ports of a mast, a sail, an oar, spar, or tiller would be “equipping” her, and for any one of these she was liable to forfeiture. It was a principle of international law that a belligerent observing the municipal law of the country had a right to call that municipal law into force against the other belligerent; so that we might be called on to confiscate any vessel which had been supplied in our ports with any of the articles described. He ventured to think such a condition of things would not be tolerated by any belligerent without involving us in war. There was another liability which flowed from the principles laid down by the tribunal of Geneva. The rule formerly was that a country or government could not be called upon to act except on evidence which rendered it reasonably certain that they would obtain a conviction in their own courts. But according to the judgment and reasoning of the arbitrators it appeared that a neutral was bound to take the initiative at the instance of a belligerent on any information, whether it were such as would justify them in instituting proceedings before their own tribunals or not. Upon any hearsay report, rumor, or unauthorized information the government might be called on to interfere. These were great and heavy liabilities under which no government was safe. (Hear, hear.) They could not ask any government to accept them, and if they did he believed every country would repudiate them. They were unworthy of the English government to recommend to any other country, and he hoped they would be rejected by the House of Commons. (Hear, hear.)

Mr. Laing thought the observation of the right honorable gentleman (Mr. W. E. Forster) who addressed the house early in the debate from the treasury bench was absolutely conclusive as to the decision which should be come to by the house, that, in order to approach the other neutral nations with advantage on the question of these rules, it was necessary to come first to an amicable understanding with the Government of the United States, and he appealed to the house not to precipitate matters while the heats which had been engendered were still in force. Questions of vital national importance had been raised in the course of this discussion, and it was fitting that the opinions, not only of lawyers, but of men engaged in commerce, should be heard. The epithets “intolerable,” “dangerous,” “mischievous,” had been applied to principles put forward in the Geneva award which he ventured to say men of common sense engaged in business would regard as of the utmost value to the permanent interests of the country. There could be no doubt that the interpretations put by the Geneva tribunal on the three rules of the sixth article of the treaty of Washington would henceforth have a considerable moral weight attached to them, partly on account of the nature of the tribunal, and also because they corresponded to a great extent with an increasing current of public opinion throughout the civilized world. He agreed with the right honorable gentleman opposite (Mr. Hardy) that it would be wise to endeavor at an early date—though not at present, for the conclusive reasons urged by the right honorable gentleman on that side (Mr. W. E. Forster)—to come to a mutual understanding with the maritime powers as to the precise definition of the articles, so that we might not expose ourselves to be overtaken by another war while such important questions still remained in a state of doubt and uncertainty. The general effect of the rules was to render the equipment of vessels like the Alabama more difficult, and to make it almost impossible for them, even if they succeeded in escaping with full equipment from a neutral port, to cruise and prey upon the commerce of one of the belligerents. Without the slightest hesitation, he said that this result would be highly beneficial to Great Britain. The increasing horror of war had led to the growth on the continent of a school of eminent jurists who, by their writings, had greatly influenced the current of public opinion on questions of this kind. In fact, all the changes made of late years in international law sprang out of the formation of what might be termed an international conscience and an extreme aversion from war. The new principles he had indicated could not be explained away by abstract legal reasoning, and it became us to inquire how the application of them would affect British interests. Surely it was a bad policy to run counter to the general tendency of the times, and it was better to run with the tide than against it. We could not maintain the old principles without alienating other powers; and that this was no theory was shown by the two instances which had arisen in the cases of the United States and Germany, the two powers of all others with which it was important we should cultivate a cordial understanding. We had every interest and every enemy in common with them; and yet during the late war our good relations with Germany were threatened because we could not alter our system apparently to favor the stronger power. Assuming that it would be advantageous to enforce as much more stringency as would prevent the recurrence of cases like that of the Alabama, he urged that the difficulty of an escaped cruiser obtaining a commission at sea could not be met until the new rule was recognized, when the escaped cruiser would remain tainted with the original offense, and might be arrested at any time, in which case Alabamas would not be built, because, even if they could get out, they could not be covered by commissions. As regarded coaling, the case was stronger, because we had established coaling-stations all over the world for our own advantage, and it would not be a matter of indifference to us if, in time of war with Russia, a vessel escaping from the United States and receiving a Russian commission could coal at San Francisco or any Pacific port. It was obvious that the establishment of the principle laid down in the award would be enormously in favor of this country. Any inconvenience we might feel in a condition of neutrality could not outweigh the immense advantage we should have as belligerents. Indeed, those inconveniences had been more than half obviated by the passing of the foreign-enlistment act of 1870, by which we were enabled to take more effective measures to prevent cruisers escaping. It was admitted our law was now more stringent than that of any other power; there was no chance of our altering it; and it was therefore our policy to induce other powers to accept the same engagements. With respect to “due diligence,” there had been some exaggeration as to what was stated to be the meaning of the term in the award. The inconvenience which might accrue to us as a neutral power might be obviated by the act of 1870 and by the growth of public opinion, which would co-operate with the government in preventing Alabamas from being built and fitted out. Whatever might be thought of the interpretation put upon the rules by the commissioners, the house could not get rid of the three rules in the treaty. When they got rid of collateral considerations, it was possible that there might be the loss of a little profit to ship-builders and gun-makers hi the emergency of war arising; but there was no practical difficulty in making regulations for the public interest by the seizure of suspicious articles, subject to compensation if they were taken wrongfully. Against any loss or inconvenience of this kind which might possibly be experienced in cases in which we were neutral, there must be set off the enormous advantage that would accrue in the reverse case of our becoming belligerents, and having to deal with neutral powers. The United States was the country from which we had most to fear in the equipment of vessels of the Alabama class in case of our being engaged in war. He felt much more highly the indirect than the direct advantages that would result from these rules. The house had heard much of the honor of the country, and it had been asked whether we were to alter our municipal law at the dictation of foreign powers. We had not done this, nor was it in the interest of any belligerent that we should do so. If we altered our municipal law, it was because we thought the change right and just, and not because dictation was employed by foreign powers. There had been two instances in modern history when this country had incurred considerable humiliation. In the first instance, one of our statesmen had expressed a degree of sympathy for Denmark, and had declared his intention of taking a position which was afterward found to be untenable. In the other case of the United States, when complaint was first made and arbitration was suggested, we mounted the high horse and would not admit that there was any blame on our part. We also took in that case a position afterward proved to be untenable, but in the wisest and most patriotic manner Her Majesty’s government and the commissioners at Washington effected the best retreat in their power from that position, and they closed the question with great benefit to the country, and removed the unhappy differences that ought not to exist between the two countries. In the case of Central Asia, our frank acknowledgments to Russia caused us not only to be spared a great humiliation, but to be treated with consideration. It was said that England had been disgraced forever, and all because some stipulation that was in its nature temporary had been adopted. He warned the house that if they passed the resolution of the right honorable gentleman (Mr. Hardy) they would be preparing for themselves a bitter crop of humiliation similar to those which this country had before experienced. (Hear.)

Sir S. Northcote said that when he listened to the speech of his right honorable friend, (Mr. Hardy,) and observed how carefully he avoided anything reflecting on the conduct of the government in regard to the negotiations at Washington and subsequently, and also observed how very cautiously and respectfully he spoke of those distinguished persons who acted as arbitrators at Geneva, although he disputed their conclusions, he felt that the question had been placed before the house in a way that could give no offense, and which might challenge a reasonable and fair attention; and when his right honorable friend sat down he hoped that some member of the government would rise, and although he might not accept the precise terms of the motion, and might even, under the circumstances, deprecate a division, and although he might further take exception to certain parts of the resolution with which he might be unwilling to agree, yet he did hope that whoever might rise on the part of the government would place the matter in such a position before the house and the country that all might feel that the national interest would be safe in the hands of the government, and that a course would be followed which would prevent the evils his right honorable friend feared would happen. He was, however, greatly disappointed when he listened to the very remarkable speech of the right honorable gentleman the vice-president of the council. Grave as undoubtedly the situation was before that speech was delivered, it left the house in a position infinitely more unsatisfactory. He had always thought that, somewhat checkered though the fortunes of England throughout the negotiations and the arbitration might have been, we should have derived at least the one advantage that the question of the rights and the duties of neutrals in time of war would have been settled and placed upon a basis which, whether we were or were not satisfied with the arrangement, would be one about which there could be no misunderstanding. (Hear, hear.) He had always understood that it was one of the main inducements to us to enter into the Washington negotiations that we should put an end to the uncertainty as to the rights and duties of neutrals which had led to the differences between ourselves and the United States. But what had the right honorable gentleman opposite told them? He had told them that things were to be left in the same position of uncertainty as before, or rather, as he had understood the right honorable gentleman’s speech, they were to be left in a state of greater uncertainty than before. The right honorable gentleman had told them, what they knew well enough before, that we were bound to accept the award of the arbitrators. Nobody had the least inclination, neither would it be consistent with the dignity of this country were we for a moment to question the award as it affected ourselves in the particular cases under consideration. We might think that the judgment had gone against us unexpectedly, and we might have had our own views on the subject, but we had accepted the award frankly and without reserve. But when the house proceeded to consider that which was really the important question now under consideration, and upon which the right honorable gentleman had dwelt so much—what was to be the rule of the future, what had the right honorable gentleman told them? Had he said that we must acrept the dicta of the arbitrators? Not at all. The right honorable gentleman had said that he joined the right honorable member for the University of Oxford in objecting to and protesting against many of the doctrines which the arbitrators had laid down. But did the right honorable gentleman altogether reject the dicta of the arbitrators; and was he prepared to adopt the counsel of the right honorable member for Oxford University, that in proposing these rules to the other nations of the world for their acceptance we should qualify them by placing our own interpretation upon them? Not at all. The right honorable gentleman said, “Oh, dear, no! as at present advised we intend to do nothing at all until we hear from the United States what they are going to do.” (Hear, hear, and a laugh.) The right honorable gentleman said that we must wait for the answer to our last communication with America; he had not given the date of the last communication, but it must be at least twelvemonths old. (Hear, and a laugh.) The matter, however, did not even rest there. The right honorable gentleman had told the house further with regard to the dicta, about which so much had been said that, although we were bound by the award, we were not bound, by anything outside of it that had fallen from the arbitrators. He also said that we were not bound by what might have fallen from our own arbitrator, distinguished as he was, nor even by the arguments of our own counsel. He said, however, that we were bound in honor by what he had laid before the tribunal in our own case, counter case, and summary. Without doubt that was so, but what was to be inferred from that statement? If we were to be bound by our case and counter case, by what were the United States to be bound? He supposed that, equally with ourselves, the United States would set aside the obiter dicta of the arbitrators, but surely they would also believe themselves to be bound by what appeared in the case, counter case, and summary which they had laid before the arbitrators. And here, of course, we should come to a dead-lock. (Hear.) We should have two opposing views of international law set forth in the respective cases, each party bound by its own exposition of that law, and all that had taken place would go for nothing. (Hear, hear.) If that were the real position in which we were, placed it would be a most unsatisfactory and disappointing one. (Hear, hear.) He had understood that when these negotiations were proceeding at Washington the object which the government had in view was two-fold—that they had in view, in the first place, the special and temporary object of bringing to a settlement the differences which had arisen between this country and the United States, and that over and above that they had another more important and permanent object in view, that of settling the vexed question of international law which had given rise to those differences. The form of the proceedings which had been adopted at Washington was undoubtedly one which had occasioned some considerable embarrassment because of the attempt which the government were making to carry out both of these objects at once. The consequence was that in drawing up the rules, which were to be at once the rules for permanently settling the international law and the rules to settle our temporary difference with the United States, both sets of commissioners were placed in a very difficult position, because they had in a manner to look both forward and backward at the same time. They had to consider not only how the rules would carry out the more important and permanent object, but how this or that set of words would affect the case which was to be laid before the arbitrators. Consequently, the operation of framing these rules was very difficult, and he might say without offense that it was not performed in a thoroughly satisfactory manner. He felt very strongly at the time, and he had no doubt that everybody connected with the proceeding also felt, that that operation was being conducted under great disadvantages. He did not know what mode of proceeding would have been better, and undoubtedly any other mode would have been open to objections which it was unnecessary for him at that moment to go into. Had the course been adopted of endeavoring to settle the differences with America before entering upon the consideration of the question of what the future international law was to be, great difficulties would have been found in separating the two operations, and objections might have arisen which would have overweighed the advantages which such a course of proceeding might have appeared to offer. But, on the other hand, in attempting to do the two things at once our commissioners were obliged to be excessively cautious not to allow anything to be inserted into the rules that would admit our liability when we went before the arbitrators; and, on the other hand, the United States commissioners were obliged to be equally careful not to admit anything in the rules that would prejudice their claims against us. The consequence was that these rules were framed in a manner which rendered them open to observation in respect of their not being either so full or so clear as they should have been with reference to the future. A great deal had been heard as to how far a commission should exempt a vessel that had escaped from neutral territory from the consequences of her having committed a breach of neutrality, and also as to how she would be affected in the event of her having reached a port in her own country after having effected such an escape. These matters had been fully discussed by the commissioners at Washington; but it was found impossible, in consequence of the number of questions which arose, to arrive at a satisfactory conclusion with regard to them, and consequently these matters were not mentioned in the rules as clearly as was desirable. The position we now found ourselves in was this—the arbitrators, in deciding upon the various cases brought before them, had uttered expressions and had embodied in their judgments principles which were extremely embarrassing with regard to the consequences of vessels commissioned or which had reached her own ports after fraudulently escaping from neutral territory. What he would bring under the consideration of the government was that it was desirable that we should now do that which we could not do at Washington, and take the opportunity of endeavouring to settle these matters. (Cheers.) It was obvious from the confession of the right honorable gentleman opposite, and from the general sense of the house, that it was impossible that we could rest satisfied with the dicta, which were in fact something more than mere dicta, which were embodied in the award of the arbitrators at Geneva with regard to commissioned ships and ships which, after violating neutral territory, had reached the belligerent port. Under these circumstances it was necessary that we should, come to some arrangement on the subject. These matters could not be allowed to remain as they were, because international law, naturally of a rather vague character, could only be said to be established when it was founded upon principles to which all nations had agreed. If you found a general principle upon which nations had agreed, you might assume that principle to be a part of international law. But a principle which one nation maintained to be correct and another incorrect, could not be so accepted; nor could the question be settled by writers, however eminent. This was the view so ably put forward by the lord chief justice. The question was one which could only be settled by agreement among nations; and this was the reason why certain views here were embodied in a treaty, and why it was resolved to submit them to other nations in order that they might be incorporated into international law. The reasons which made it important that these views should be settled were as strong now as they ever were; but it was equally clear that if they were to be incorporated into international law they should be made intelligible and such as all nations could accept. A good deal has been said as to whether such and such a rule would be for the interests of England, or for the interests of belligerents or neutrals. We must view this question, however, not from the national but from international point of view; we must not consider the rules which were desirable in the interests of our own country, but those which all countries would be ready to adopt. Now, other nations could not be expected to adopt these rules with the interpretation put upon them by the arbitrators unless there was some clear explanation and probably some modification of them. It was very well to talk of the sayings of the arbitrators as obiter dicta. He did not know precisely the definition of an obiter dictum; but principles inserted in the body of an award as the principles upon which the award was founded were surely something more than obiter dicta. (Hear, hear.) He should have thought also that when the arbitrators explained the meaning of their decisions, these explanations were something more than obiter dicta. (Hear, hear.) And when obiter dicta led to so very substantial a conclusion as the payment of upwards of £3,000,000 by one nation to another, common sense suggested that, whatever name you gave to them, they must exercise as precedents an important influence upon the law of nations. (Hear, hear.) We could not, then, as the vice-president of the council calmly suggested, afford to leave the matter as it stood until the United States chose to take it up, meanwhile considering each nation bound by its own opposite view of international law; nor could we allow Great Britain by tacit assent to give color to such principles as were laid down by the arbitrators. (Hear, hear.) He did not wish to exaggerate the importance of those principles. There had been a tendency in some quarters to do so, and to give a general application to principles which were only meant to apply to the particular case. Still, strong doctrines had been enunciated at Geneva. Thus it would be impossible for any nation to attempt to come up to the arbitrators’ standard of due diligence. We might, however, expect that standard to be somewhat lowered hereafter. But the doctrine that a judicial decision, obtained by the authorities of a neutral nation, in the case of a vessel, was not to free that nation from responsibility, was such an extraordinary doctrine that, without explanation, we should only insult other nations by asking them to adopt it. (Hear, hear.) How did this matter stand? Count Sclopis, in the case of the Florida, said:

“The decision of the admiralty court might be considered correct as between those who claimed the vessel and the British government, which claimed its confiscation under the clauses of the foreign enlistment act; but it was not sufficient to bar the claims of the United States against Great Britain. The United States were not parties to the suit; everything relating to it was, therefore, to them res inter alios acta.”

Now the whole scope of the decision of the arbitrators was that the neutral government ought to proceed against the vessel without requiring any notice or action on the part of the aggrieved belligerent. Well, the neutral government took proceedings, went before the judicial tribunal, and failed in the suit. But, then, according to Count Sclopis, it was res inter alios acta, because the aggrieved belligerent was no party to the suit. This view obviously placed the neutral government in a difficulty. The aggrieved belligerent would have a double chance. If the suit went in his favor, of course all was well. If, on the contrary, it went against him, he would say, “I am not Abound by the decision, because it is res inter alios acta.” (Hear, hear.) Then another of the arbitrators, M. Stæmpfli, expressed his opinion that “as regards municipal law the judgment is valid, but as regards international law it does not alter the position of Great Britain.” What an extraordinary doctrine! The question was whether Great Britain exercised due diligence. It was admitted that the British government proceeded against a vessel which there was ground for suspecting, and brought the case to trial in the only way open to them according to British law. It was further admitted that a decision was arrived at in a regular and formal manner; no allegation was made of corruption or fraud; yet we were told that having done all this, and the judgment being valid as regards municipal law, the position of Great Britain was not altered, and that those proceedings had no effect whatever. Was it possible that such a doctrine should pass without challenge? (Hear, hear.) And was it not reasonable that those who were trying to introduce such rules into international law should be prepared either to justify, or propose an alteration in, the decision of the arbitrators? (Hear, hear.) He did not wish to discuss further a subject which had been so ably discussed already. He did wish, however, to urge upon the government that they should not treat the motion of his right honorable friend in the spirit which it had been treated by the vice-president of the council. (Hear, hear.) He should be the last person to wish to throw a slur upon the treaty, or upon the rules included in the treaty, and he should be the first to regret anything which might lead to the failure of an attempt which he believed was wisely conceived and courageously carried through. The objects which the government had in view, especially the great object of endeavoring to settle the principles of international law, were worthy objects, and the government undertook those negotiations with an earnest and firm determination, if possible, to bring them to a settlement conducing to the honor and interests of the country. With this view they spared no labor; they were prepared courageously and patriotically to face the sneers and the cavils to which some portions of the arrangement were sure to expose them; and he knew that they acted throughout with a sincere belief that what they were doing would be of advantage to their own country and to the civilized world. He thought he might venture to say for those who sat on his side of the house that at no period of these transactions had they shown any desire to impede or hamper the proceedings of the government in this matter; that, on the contrary, they had endeavored to assist the government as far as they could do so consistently with their own view of the public interests. They had now arrived at a period when further action on the part of the government appeared to be imperatively called for. (Hear, hear.) It appeared to him, and if he gathered correctly the sense of a large portion of the house it appeared to them, that if they stopped where they were, he would not say with reference particularly to a quarrel with America, but in all other respects, they would leave themselves worse off than they were before the treaty of Washington was negotiated. He would, therefore, urge the government not to neglect the opportunity now offered to them, not to neglect an expression of opinion that was, he thought, almost unanimous, with regard at least to the spirit in which the motion was conceived and the way in which it had been brought forward. He would ask the government not to allow them, by ill-timed negligence, or by an unwillingness to move, to drift into what he believed would be a serious national and international embarrassment. (Cheers.)

The Attorney-General rejoiced that it was his fortune to follow his right honorable friend opposite, to the tone and temper of whose speech it was impossible to take the slightest exception. Yet in that speech, as in almost every other made in that debate, two somewhat inconsistent lines of observation had been followed. There was the discussion of the particular motion before the house, which was one thing, and there was also the larger, and perhaps in one sense the more important, discussion of the treaty of Washington with the three rules embodied in it, and the interpretation put upon them by the tribunal at Geneva. Now, the House of Commons ought to look carefully to the phraseology of the resolution which it was now invited to pass. He did not impute to the mover the least intention even to embarrass the government, still less to place the country in any false or embarrassing position. Still, if the right honorable gentleman (Mr. Hardy) would bring a fair and candid mind to the consideration of that question, he was sure that if he were in the position of one of the arbitrators against whom his resolution was directed, he would feel, in spite of what the honorable and learned member (Mr. Harcourt) had said, that the motion was a direct vote of censure upon him. (Hear, hear.) He was sure the right honorable gentleman, after such a vote, would feel that his position was intolerable, and that he had been treated contumeliously. (Hear.) It was to the motion of the right honorable gentleman that the house was asked to assent, not to what the mover intended. Having quoted the words of the resolution, the honorable and learned gentleman went on to remark that the question was not whether they agreed with the arbitrators, nor whether, if they had been placed in their position, they would have come to the same conclusion as the arbitrators had done; it was not even whether they might not think that, in many of those matters, the arbitrators had, in fact, displayed what the right honorable gentleman characterized by the terms of his motion; but the question was whether it was wise, whether it was dignified, whether it could lead to any good result for the British House of Commons to pass with regard to an arbitration by which they were bound, which they had thanked the arbitrators for undertaking, and which they were to pay them for having undertaken, a resolution which no man in his senses, and who was not arguing to defend a thesis, would deny to be a direct and very heavy vote of censure upon those who were the objects of it. Did the house seriously wish to put an end to all the good which had been, or might be, done by that arbitration? (“Oh!”) He was surprised that any one should deny that immense good had been done by it, although in this world there might be no good that was wholly unmixed. The question was whether Parliament was not, on the whole, satisfied with the arbitration having been undertaken, and with the grave disputes between this country and America having been pacifically and satisfactorily settled by it. (Hear, hear.) No doubt, the house was entitled to an avowal from the government of what they held to, and what they did not hold. [Mr. Horsman. And what they will do.] He hoped his right honorable friend would have a little patience with him, as they had patience with him the other night. (A laugh.) It was idle to talk of England altering her laws at the dictation of foreign powers. England would remain true to herself, they might depend upon it. The honor and glory of England were as dear to others as it was to the honorable and learned member, (Mr. Harcourt.) But England was a member of the family of nations, and must be bound by those principles of conduct which civilized states had agreed among each other to adopt. Though it was true that, as between sovereign state and sovereign state there was no power to impose a duty or enforce a law, and, therefore, when they spoke of international duties and international law they used words that were only imperfectly applicable to the subject-matter, still, if the municipal law of any particular nation was such as to render it inadequate to the performance of the duties of a neutral when war broke out, belligerent powers, he did not say had the right to, but, as a matter of fact, would complain, and call upon it to make its municipal law adequate for that purpose. The lord chief justice laid it down distinctly that the duties of a neutral government involved three things: First, that the law of the neutral should be sufficient to enable the executive to prevent breaches of its duties as a neutral; secondly, that where the application of its law was called for, it should be put in force honestly; and, thirdly, that all proper and legitimate means should be used to detect any intended violation of that law. The rule so properly laid down by the lord chief justice was that, where the municipal law of a neutral was insufficient for the discharge of its duties, the neutral might fairly be called upon to alter it. It must either comply with this reasonable, and he might almost say Christian, duty, or run the risk of war. Thus much for his honorable and learned friend’s heated appeal to the privileges of the House of Commons—privileges which nobody respected more than himself when appealed to in the proper way. As far as the mere arbitration was concerned, the best course was to hold our tongue, (hear, hear, and murmurs,) to pay the money, since it could not be helped, and have done with it. Arbitrators were not judges or legislators. He admitted that if they were ordinary judges, and if this was a suit between party and party, the rationes decidendi would be binding; but they had no authority beyond that given them by the treaty of deciding this particular point, according to the rules and to international law, and as far as they had gone beyond this, we were not bound by their decision. It might be that reasons embodied in the award by persons of such distinction by way of recital, however in excess of their powers, and however little binding, might lead to a state of things calling on the part of either government for some distinct declaration of opinion, how far they considered themselves bound and how far not. (Opposition cheers.) He was not conscious, that in saying this he had gone an inch beyond his right honorable friend, (“hear, hear,” from Mr. Forster,) who intended to say as much, and if he had not done so had been misunderstood. (A laugh.) The observations of some honorable members had tended to convey the assumption that we should have been better without the rules, and that they imposed new, unheard-of, or disadvantageous obligations on neutrals. Now, with the exception of one rather doubtful point, they were only new to this extent, that the character of wars and the relations between states having altered since the last great war, circumstances had necessitated a new statement of principles as old as the relations of civilized nations. The American commissioners were anxious for the laying down of some new rules of international law, and, after much discussion the British commissioners were empowered to agree to those rules, on the footing that they should be binding for the future, and that, as between the United States and ourselves, our conduct should be judged as if they had been binding at the time of the depredations of these vessels. The first rule required a neutral to exercise due diligence in preventing the fitting out, arming, or equipping within its jurisdiction of any vessel which there was reasonable ground for believing was intended to cruise or carry on war against a power with which it was at peace; as also in preventing the departure of such vessel, adapted wholly or partly within its jurisdiction for warlike purposes. Now, this, excepting the last portion of it, was as old as international law itself. From the earliest times the sending forth of an armed ship had been held to be the sending forth of an expedition, and this being an obvious breach of neutrality, “due diligence” was required to prevent it. Objection had been taken to that phrase, but in these matters such general expressions as “reasonable notice,” “proper care,” and “due diligence” were customary and necessary terms which could not be further defined, but which no fair-minded man would have any difficulty in understanding. In the administration of the law the construction of them was always left to a jury, and it might fairly be left to five distinguished men like the Geneva arbitrators. He denied that the doctrine as to due diligence was new or oppressive in the slightest degree. The second part of the first rule had occasioned some dispute. It was to the effect that the neutral was to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry oh war against a belligerent, such vessel having been adapted, in whole or in part, for warlike purposes. What had given rise to that provision? The foreign-enlistment act of 1819 was found not to meet such a case. The court of exchequer held that under the act a fully armed vessel might be seized, but they were divided in opinion as to whether the act applied to the case of a partially armed ship. The rule was meant to meet that case, and was not a new principle of international law. And how was it oppressive? Why, in 1870 a further foreign-enlistment act was passed unanimously, which went far beyond the rule that was now said to be new and oppressive. Certainly it was new, for the treaty was entered into in 1871, and the act to which he referred was passed in the previous year. But it might be said that its provisions need not be enforced. He could not concur in that view, for he held that, a law existing empowering a government to prevent breaches of neutrality, a foreign government would have just cause of complaint if that law were not enforced. (Hear, hear.) So much for the first rule. The second said that a neutral should not permit either belligerent to make use of its ports as a base of operations. Was that a new rule? It was as old as the oldest international writer with whom he was acquainted. Was it consistent with amity that a neutral power should allow itself to be made a base of operations against one or other of two belligerents? Surely not. And then came Rule 3, which simply amounted to this—that having agreed to two very excellent rules, due diligence should be observed to carry them into full effect. Was that an oppressive rule, as it had been called by his honorable and learned friend the member for Oxford? (Mr. Harcourt expressed dissent.) Well, if his honorable and learned friend did not call the rule oppressive, it certainly did not receive at his hands any great garlands of praise. He certainly said that the sooner the rules were got rid of the better, (hear, hear,) and he added that in a great European war the rules would be turned against ourselves.

Mr. Harcourt. My honorable and learned friend is mistaken. He applies to the rules the observations I made in reference to the doctrines of the award. (Hear, hear.)

The Attorney-General. If his honorable and learned friend denied that he said we should be bound by the rules in case of war, his (the attorney-general’s) recollection was at fault. Those who understood his honorable and learned friend as he did should read the next sentence of the treaty, which expressly provided that the rules should be binding only as between the United States and Great Britain; and that with respect to any other nation which did not accept them, they should be as though they did not exist. (Hear, hear.) It should be remembered that the rules were much more likely to be of benefit to England than to any other nation. It seemed to have been forgotten that the parts in the drama as between ourselves and the United States were changed. Formerly the United States was the great neutral. England was the great belligerent. That was not so now, and if the rules were oppressive they would be more oppressive to the United States in time to come than to us. He gave the United States credit for an honorable observance and discharge of their international obligations, and he believed that, were we belligerents, there would be no disinclination on the part of the United States, being neutral, to be bound by the rules which they had imposed upon themselves. (Hear.) Now, as to the interpretation of the rules, in his opinion the arbitrators took an erroneous view. What they were asked to decide was whether there was liability with respect to six or seven definite cases placed before them, and, if so, to what extent. Having done that, their duty was discharged. But that was not the view which they took; and here, he must say, he differed very respectfully from the opinion said—he did not know whether correctly—to have been expressed by his right honorable friend the chancellor of the exchequer, to the effect that it would have been better if the lord chief justice had not delivered any judgment at all. If the other arbitrators had not delivered judgments he should have been of that opinion. But they not only did so, but some of the judgments were delivered before argument, and at all events the judgment of the lord chief justice had the advantage of being delivered after argument and full consideration of the facts of the case. He could not help rejoicing that that judgment was delivered. (Hear, hear.) It would have been a source of regret had the other judgments remained unanswered, and he could not help saying that the judgment of the lord chief justice was worthy of the occasion, and—he could use no higher language—worthy also of himself. (Cheers.) It was very desirable that our case and our view should be stated, not by our counsel, not by the person to whom our case was committed, but by an arbitrator in the discharge of an important and impartial duty. There was a good deal in the judgments which he agreed in thinking might be discarded, and as far as the recitals were concerned, there were some which he thought untenable, though he could not admit they had all been dealt with in perfect fairness. With regard to the question of due diligence, the mere expression of opinion on the part of the arbitrators as to the mode in which the damages were to be assessed, in default of due diligence being exercised, was erroneously taken to be the arbitrators’ interpretation of the recital. The expression of opinion assumed due diligence, and did not in any way attempt to interpret it, and they then expressed their opinions in reference to the mode in which damages were to be assessed. He confessed himself unable to understand the meaning of the word “exact” as applied to the proportion of injury likely to be sustained. A man was more to blame if by leaving open a door he knew he would be causing another man’s death than he would be if his neglect was not likely to result in more than the causing a man to sneeze. The determination of the exact amount of culpability was, however, a matter of considerable difficulty and delicacy. It would be unfair altogether to measure the blameworthiness in proportion to the consequences of events which could not be foreseen, and if that was the interpretation to be put upon the recital, he could only characterize it as untenable. (Hear.) A ship built bona fide in a neutral country might afterward be commissioned by a belligerent power, but the neutral could not therefore be held responsible for the damage done; the responsibility would be in proportion to the negligence by which a neutral power permitted a ship so built within its borders to escape for the service of a belligerent power. Mr. Adams signed the recitals, but he afterward, in a separate judgment, expressly denied that he would allow the principle which the right honorable gentleman (Mr. Hardy) supposed him to be contending for when he signed the recitals to apply to the United States. Again, the recital applying to the obtaining of coal in neutral ports by belligerent ships had been incorrectly supposed to apply rigidly to all ships, whereas, as matter of fact, the arbitrators themselves decided the particular cases in accordance with the peculiar circumstances connected with them. We could not go to foreign nations and press upon their acceptance these rules, open to objection as they were. (Hear.) It would not be advisable to put these rules before foreign nations without some very distinct statement that we objected to these recitals, which were not binding, and many of which were perfectly indefensible. (Ironical cheers from the opposition.) That statement ought to explain the sense, and the only sense, in which we approve and put forward these rules, namely, the sense mentioned by his right honorable friend opposite. In his opinion, these rules should not be laid before foreign powers without a very distinct statement that beyond the extent which he had indicated, Her Majesty’s government did not deem itself pledged by the interpretation put upon these rules by the arbitrators. Now, if the question were asked, what shall we do? his answer would be, nothing. He did not think this was a favorable time to open negotiations with the United States for the purpose of arriving at an understanding as to how much or how little of these glosses, interpretations, or comments they agreed with us in accepting or refusing. That nothing could be done with the foreign powers until the United States joined with us in urging them to accept these rules he was perfectly satisfied. (Hear.) It was our bounden duty, not of ourselves, to bring these rules under the notice of foreign powers, but to do so in conjunction with the United States. This was not a party question. It ought not to be a party question. Every member of the house, on whichever side he sat, ought to be as jealous with regard to the honor and character of this country as he was with regard to his own. He was quite certain that in what his right honorable friend had said he did not intend even to do so slight a thing as to embarrass the government. He was quite sure his right honorable friend did not intend to do a far more serious thing, namely, to expose this country to the ridicule and contempt of the civilized world as a people who paid, but grumbled because they had to pay. If all that his right honorable friend desired was to extract from the government a distinct explanation of what they agreed to, and of what they dissented from, with reference to these rules, he had abundantly obtained his object. If he desired more than that, his object was illegitimate and improper. (Hear, hear.)

Mr. Disraeli. I have heard with much satisfaction from the attorney-general that Her Majesty’s government are prepared to disavow the interpretation which has been put on the three new rules by the tribunal at Geneva, and that they undertake to make no representation to foreign powers without at the same time communicating to them the interpretation which they place upon them, that interpretation being contrary in every sense to the interpretation put on them by the tribunal at Geneva, in accordance, it must be admitted, with the description given of them by Her Majesty’s government themselves, and by so eminent a person as the lord high chancellor of England, who took so conspicuous a part in these affairs. The house will, under these circumstances, I think, agree with me that the discussion in which we have been engaged this evening has proved of great advantage. (Hear.) The question is now placed in a much more satisfactory manner before the country, and many minds will in consequence be relieved from great anxiety by the declarations which have been made on the part of the government, and which I trust the prime minister himself will confirm, and so prevent an unnecessary division on a subject of transcendent importance, with regard to which we should show ourselves desirous to co-operate with the government of the day as far as we can, and that there is on the part of the House of Commons a determination to have a clear understanding of our engagements, and not to sanction interpretations of the new rules which might imperil the future fortunes of this country in a manner which by some persons has not, perhaps, been sufficiently considered. (Hear, hear.) I may remind the house that one of the great recommendations of these rules which was made to us by Sir Roundell Palmer was, that they were very precise in their character. Though he himself doubted as to the expediency of some portions of them, yet he said he preferred them to the arrangement which had been made between Lord Stanley and Mr. Reverdy Johnson, because they were precise, adding that we knew what our engagements were, and that we might, therefore, be easy as to the future. But, unless the House of Commons had interfered as it has done to-night, and unless we had received a declaration such as we have received from some members of the government, and which I have every hope will be sanctioned by the prime minister, it is quite clear we could not feel that easiness with regard to the future, so far as these new introductions into international law are concerned, which the lord chancellor of England seemed to contemplate. Now, I look upon this question entirely as to the future. I heard with great regret that part of the speech of the attorney-general where he appeared to argue as if there was a proposal emanating from this side of the house to break away from the engagements of the treaty of Washington, and to reject the verdict of the arbitrators, and as if there was some feeling of discontent and disappointment in consequence of the decision at Geneva, which led us to appeal to the House of Commons to pronounce an opinion as to the interpretation which ought to be put on the new rules.

The Attorney-General. I did not allude to the right honorable gentleman, the member for the University of Oxford.

Mr. Disraeli. I am very glad that you did not, but on whatever side of the house we may sit I feel called upon to vindicate ourselves against such an imputation. I regret much that has passed on this subject, but I am now willing to believe that the government are at length about to act with decision and with prudence—qualities the exercise of which is absolutely necessary in the present situation of affairs. I do not grudge the verdict which has been given against us. I am willing to believe that the general course of this transaction, if it tends to maintain a thorough friendship between the two countries, is not to be deprecated; but I am convinced that, unless we arrive at some precise meaning as to the engagements into which we have entered by the intended introduction of the three new rules into the international law of Europe, we shall find ourselves involved in very great difficulties, (hear, hear,) and that those who come after us will repent the course which we have taken and sanctioned. But it is only the future that I now wish to consider. I cannot help feeling that Her Majesty’s government have not given this matter the attention which its importance and instant character appear to me to demand. Why, at the commencement of the session, the prime minister was under the impression that the government had already communicated the new rules to the powers of Europe, but we afterward learned (Mr. Gladstone: “The same night”) that that statement was made inadvertently. The same night—but what does it matter whether the correction was made the same night or a month after? (Hear, hear.) It is, at all events, quite evident that the matter was not considered of the gravity and importance which it ought to have been, and that the prime minister was acting in actual ignorance of whether communication had been made to foreign powers on the subject or not. (Hear, hear.) Then another member of the ministry informed us that if a communication were made to foreign powers, it would be made without note or comment. That is the whole question before us. We are of opinion, and I think the House of Commons generally concurs in that opinion, that the communication should not be made without note or comment, (hear, hear;) and, if I understand the attorney-general aright, that is now also the opinion of the government. If that be so, if the government are convinced that in fulfilling the duty which they have engaged to perform under the treaty of communicating those rules to foreign powers they must accompany the communication with the precise interpretation which they put upon them, if at the same time they take steps to arrive at an understanding with the United States with respect to them, then this debate will, I think, not have been in vain, and the house will feel that it has done its duty in seriously calling the attention of the government to the subject. (Hear, hear.) There is one point, I may add, which was mentioned by the right honorable gentleman the vice-president of the council, which I cannot help noticing. The right honorable gentleman on more than one occasion informed us that the last letter—I suppose he meant dispatch—which was sent to the United States had not been answered, and from some expressions which he used I would infer that until that answer arrives no further steps will be taken by the government to bring this anxious matter to a satisfactory conclusion. Now that is a course which I should say would be most unsatisfactory to the house. (Hear, hear.) It is, I think, the desire of the house that whether an answer has or has not been sent by the United States to the last dispatch of the government, means should be taken—and there are usual and obvious means when dispatches are not answered—to revive the memory of the United States on the subject. The verdict of the tribunal at Geneva has certainly not been one of a very mortifying complexion to the Government of the United States, and there is no reason why they should treat us otherwise than in a friendly spirit with respect to the interpretation to be put on the three new rules. I trust, therefore, that but a very little time will have elapsed before we shall have it communicated to the house that an understanding between the two countries has been arrived at in the matter. I am not clear myself that a joint communication is necessary under the provisions of the treaty of Washington. I doubt whether the attorney-general was warranted in his assertion on that point, unless he has the treaty in his hand. (A laugh.) It states that “the high contracting parties agree to observe those rules between themselves in future, and to bring them to the knowledge of other maritime powers and invite them to accede to them.” There is no mention there of joint action. I do not say that it is not desirable there should be joint communications. I merely wish to point out what are our engagements under the treaty in the event of there being delay on the part of the United States, and what is the freedom of action of which we may avail ourselves. If the United States should not act with us with that unanimity which I think we are entitled to expect, it seems to me that it is in the power of the government of the United Kingdom to determine what is the interpretation which they place on the three new rules, on their own responsibility, and by their sole communication to make that interpretation known to foreign powers. I trust it may not be necessary to have recourse to such a step, and that there may be a joint communication; but there can be no joint communication unless the government give more earnest attention to a matter of great public interest than it seems to me they have done hitherto. At all events, the sooner we arrive at a precise understanding of the interpretation to be put on these rules, the better for the general interests of Europe and the maintenance of peace. I cannot agree with one honorable gentleman who has addressed the house that this verdict of the Geneva tribunal is a matter of indifference. On the contrary it is a verdict which will be appealed to in the future as an authority on the law of nations. On what does the law of nations rest, if not upon authorities of this kind? I admit with the attorney-general that the law of nations depends upon treaties; but the attorney-general will agree with me that the greater portion of the law of nations does not depend upon treaties. It would be well if it did, but it would not be difficult to prove that much the larger portion of the law of nations depends on the authority of individuals—writers who have studied the subjeet, and who have become recognized in the countries in which they have flourished as great authorities on jurisprudence. But the high authority even of distinguished judges and renowned philosophers, writing on these matters, will, after all, not be regarded with the same veneration and as having the same corporate authority as the decisions of a high tribunal which had been appointed by the greatest powers in Europe to decide this question. We are now familiar with this tribunal of Geneva, but ten or twenty years hence this country may be involved in war, and questions similar to this may arise, and when they are being debated in this house and in other similar chambers, depend upon it the authority of the tribunal at Geneva will be appealed to, (hear, hear,) and its decisions will be looked upon as forming part of the law of nations. Therefore it is of the utmost importance that time should not be lost. This is not only a great but a pressing subject. If this matter should be negligently left undecided; if we fail to come to some understanding with the United States as to the general interpretation to be put upon these new rules, and if we fail to take the precaution of communicating them, as we are bound by the treaty of Washington to do, to the powers of Europe, accompanied by the precise interpretation of the British government upon them, we may find ourselves involved in disaster. I trust, therefore, we shall hear from the highest authority that the best exertions of the government will now be used to bring this matter to a happy conclusion. (Cheers.)

Mr. Gladstone. The first thing the right honorable gentleman will hear, from what he is pleased to term the highest authority, is that there is no change of view on the part of the government with respect to the question connected with these rules, and that it is a matter which has never been neglected. The right honorable gentleman and the honorable and learned member for Oxford have obligingly reminded me of a lapse of memory, on my part, on the first night of the session, on account of which I have already apologized to the house. I am, however, not indisposed to apologize to the house again, or any number of times the house may please. Perhaps the right honorable gentleman is not conscious what a lapse of memory can be, but I know of a case of a gentleman who, having been chancellor of the exchequer, has charged as a high crime and misdemeanor the conclusion of a pecuniary arrangement which he himself had initiated. (Laughter.) It would he invidious to enter into particulars, but there are members of the house old enough to remember the circumstances, which attracted some attention at the time, and which I presume the right honorable gentleman has not forgotten. I deeply regret the lapse of which I was guilty, but it happened that I at the time confounded what I had read in dispatches with regard to informal communications with actual statements upon the rules, and I explained the same evening the error into which I had fallen. (Hear, hear.) The right honorable gentlemen has found fault with a remark of my right honorable friend the vice-president, who has stated that the last communication upon this subject had been made by Great Britain, and that therefore it rested with the United States to take the next step. The right honorable gentleman thinks it most important that the subject should be resumed at once, lest by the outbreak of war we should become involved in difficulty. If, unhappily, a war should arise in Europe, and we, unhappily, should be involved in it, it would have nothing to do with this question. The question relates to an engagement between this country and the United States, and the nations of Europe have no concern whatever in it, nor does it enter into our relations with them. We are very far from thinking this is a subject in which there ought to be indefinite delay; but what is our position? Here is a complicated instrument, the treaty of Washington, embracing the settlement of a large number of international questions. We began to deal with the subject now under consideration almost immediately after the conclusion of the treaty; but we were interrupted in that correspondence by the occurrence of a controversy on the subject of the indirect claims. That reminded us that, although there are great difficulties between the two powers still remaining unexecuted, it may be wiser to look first to the execution of those conditions, and postpone until after they have been completed a proceeding such as that connected with the three rules, which concern the joint action of the two powers toward the rest of the maritime powers of the world. I wish to state this plainly, because I should deceive you if I gave reason to believe that we contemplated immediately pressing the United States to resume the correspondence. We think it better, especially now that we are approaching, as I hope, the satisfactory interpretation of the whole of those great transactions under the direct clauses of the treaty, to wait until those matters are concluded before we resume the subject of the three rules. The right honorable gentleman has also stated that he does not think we are in any way bound by the language of the treaty to make a joint communication of these rules. Whether we are bound or not, I should anticipate very little advantage from a separate communication. (Hear.) And I think a moment’s reflection will show the right honorable gentleman how little chance there could by any possibility be of procuring acceptance of these rules in case the two powers originally accepting them were unable to agree in submitting them. A joint communication was evidently contemplated by the treaty, and a joint communication would alone afford reasonable promise of that attainment of the objects of the treaty. Now, with reference to the debate, I may be allowed to commence my remarks by thanking the right honorable gentleman (Mr. Hardy) for the spirit in which he introduced this question to the notice of the house. I must say it entirely fulfilled the purpose which the right honorable gentleman had in view. I am also glad that the right honorable gentleman found time in the midst of his closely-argued statement to do justice to the action of Lord Russell in the difficult transactions with which he had to deal when he was foreign minister. (Hear, hear.) There is no man who has a keener sense of the national honor than Lord Russell, and no one who, with that keen sense of the national honor, knows better how to fulfill all the international obligations of this country. (Hear, hear.) I am also obliged to the right honorable gentleman for this, that in the first place he most usefully limited this discussion, and kept it within its proper bounds, by entirely passing by the individual, opinions and statements of the arbitrators. If we were to enter into those statements, there would be no possibility of setting limits to this debate. The right honorable gentleman recognized as the proper subject of his motion the joint statements of the arbitrators. I must also refer with satisfaction to the view taken by the right honorable gentleman of the three rules themselves, because he said had it not been for the joint statements of the arbitrators and the color they gave to the rules he would not have made the motion and invited the attention of the house to the subject. With that statement I am quite content. There are, however, one or two other statements of the right honorable gentleman which appear to me to be hardly consistent. I greatly doubt whether he was perfectly correct in saying that the obligation to enforce international law could be limited according to the institutions of each country. And I here would venture to question whether it can be laid down as a universal proposition that the belligerent is bound to be content with the judgment of the neutral court.

Mr. Hardy. What I said was this, that there was an absolute right to enforce international law, but no right to enforce municipal law.

Mr. Gladstone. Well, then, I am quite satisfied with that statement. Now, while there are conclusive reasons which must lead the government to object to the adoption of this address, there is no substantial difference between the right honorable gentleman and ourselves as regards the practical object. From one point of view I am very sorry that this discussion has been raised, because, if I could, I would wish that the members of the government should keep a silence, which is not binding on others, with respect to the declarations of the arbitrators. (Hear, hear.) But, while I regret that we have been obliged to open our mouths, I am as far as possible from complaining that a subject so legitimate and proper for discussion should have been raised by the right honorable gentleman. I concur with what fell from my right honorable friend near me, (Mr. W. E. Forster,) and with the attorney-general in his more detailed statement with regard to some of the propositions of the arbitrators. They pass entirely beyond the limits and bounds of my understanding; they belong to a higher region of law, into which I am not able to follow; but after the full discussion which my honorable and learned friend has entered into with regard to those propositions, I do not think it necessary for me to dwell upon them in detail, or even to refer to them particularly. But I would wish to point out where it is that I part company from the right honorable gentleman opposite. After the very fair account that he has given of the three rules I think he has done some injustice to his own admission by speaking of the recitals of the arbitrators as their interpretation of these three rules. I contend that they are not an interpretation of the three rules. I do not think it possible, for instance, to say with reference to a portion of the recitals in the Alabama case, that because the measures taken were unsuccessful they did not satisfy the conditions of “due diligence.” (Hear, hear.) It surely is not possible to contend that this is an interpretation of the term “due diligence.” To hold and apply it as a principle that in the case of a government you can never allow “due diligence” to be used except where the means have been completely successful may be a corollary or deduction; but call it what you like, it is no interpretation of the rule, because it has no just or fair reference to the meaning of the words contained in the rule. (Hear, hear.) When in construing the words a perfectly arbitrary consequence is sought to be drawn, and an enlargement made which can in no way be brought within the meaning of the words, we do injustice to the document in treating the recitals as an interpretation. But an admission has been made by my right honorable friend near me, and more fully by the attorney-general, that though the recitals of the arbitrators are no interpretation of the three rules, yet we admit that they are important facts for the legitimate consideration of the House. It is impossible to deny that a certain relation is established between them and the three rules, unless something can be said to the contrary. Now, I think that is really the gist of the motion of the right honorable gentleman. I will now state very briefly why we cannot adopt the motion. In the first place, I think that the effect of the motion treating the recitals as an interpretation of the rules is not perfectly just to the rules themselves. My honorable and learned friend, the member for Oxford, (Mr. Vernon Harcourt,) is perfectly ready to meet me upon that ground, because, differing entirely from the right honorable gentleman opposite, and differing entirely from the terms of the motion which he supports, for the motion asks that the rules may be disconnected from the instructions attached to them, he demands that the rules may be canceled altogether. The honorable and learned gentleman of course would say, “If the motion tends to disparage the rules, so much the better.” I am sure the right honorable gentleman opposite, who sees the position in which we stand under the stipulations of the treaty, has no such object. I must also say that I greatly doubt, unless there were an imperative necessity—and I grant a necessity would arise if there were a difference of opinion in the House as to the course taken by the government—I say, I doubt whether, when the world might say that we were smarting under the decision which has been given, it would be a nodus vindice dignus if the House were to descend into the arena, and on the part of the people, in its representative character, should make complaints of this kind. The state of opinion abroad with respect to this question between America and ourselves has been by no means unequivocally in our favor, and I do think it is of great importance that we should take in uncomplaining silence the arbitration itself, and not have it said that we gave signs of mortification while we were performing the process of disbursement. (Hear, hear.) I am not going to make a verbal criticism on the motion of the right honorable gentleman. It is some what complex in the mode of drawing. The right honorable gentleman invites us to make a representation not only with respect to the interpretation of the three rules, but with regard to the other principles of international law adopted by the arbitrators. Now, I am sure, he will see that the question whether the other principles of international law adopted by the arbitrators, outside the three rules, are sound or not sound, is a matter having no connection whatever with the interpretation of the three rules. (Hear.) All of us desire that the two subjects should not be mixed up together. There is another objection, which is solid and of considerable weight. The words of the right honorable gentleman, as they stand, would call upon us to register a dissent from the whole of the principles recited by the arbitrators. It is not to be a dissent from certain principles of the arbitrators, but it is to be a dissent from the principles recited by the arbitrators. Now, if the House could adopt a motion of this kind, which I hope they will not, it would be a direction to the government, and for the fulfillment of that direction they would still have to depend on the government of the day. I take it for granted the right honorable gentleman would not desire to give that direction unless he saw something in the views and explanations of the government which was not satisfactory. There appears to have been some misunderstanding as to the terms used by my right honorable friend, the vice-president of the council, which were afterwards more fully and satisfactorily developed by my honorable and learned friend the attorney-general, and although I am going to point out an important distinction, I do not really think it can possibly be made the subject deliberately of any difference of opinion between the two sides of the house. What was said by the attorney-general was this: He has admitted that the gloss, as he called it, on the rules will, though illegitimately and improperly, be held to stand in some relation to the rules, and to be of more or less authority, perhaps, in the determination of similar cases if they arise; and that, in consequence, although we hold these recitals of no authority, it is our duty to ascertain that when we proceed, as we trust we shall proceed, in conjunction with the United States, to recommend the three rules to the acceptance of the other powers, we shall recommend them totally disencumbered of these recitals—that it is our duty to place them outside of the rules, to destroy all connection between them, and to take care that there is no mistake or ambiguity whatever in that respect. That, I think, is in substance what he said. The criticism of the right honorable gentleman, the member for Bucks, took a somewhat wider sweep than the speech of the right honorable gentleman, the member for the University of Oxford, for he says he understands the government to be engaged in recommending the rules to the maritime powers to put on them the most decided and precise interpretation. Negatively, I agree with the right honorable gentleman—we recognize it as our duty to take care that, as far as we are concerned, these dicta of the arbitrators—these recitals, the rationes decidendi, are not allowed to enter into the question; but if he means that we are to place a substantive interpretation on the three rules—a comment to be framed on the text—then I say, first, that it is by no means implied in the motion; and, secondly, I think such a course would be open to considerable objection. How are you to offer along with rules which are to form part of international law a comment as to the light in which they are to be regarded? That comment must be of equal authority with the rules themselves if it is to be of any value at all; and if it is to be of equal value with the rules themselves, it ought to constitute a portion of the rules. That would be traveling back to where we set out from, and we should have at last to aim at an entire reconstruction of the rules. (Hear.) With regard to the three rules I refer for their exposition to the argument of my honorable and learned friend the attorney-general. With one single exception, I am aware of no ambiguity attaching, to the rules. The rules passed through the ordeal of the Geneva trial, and stand well. As truly stated by the honorable and learned member for the the city of Oxford, there was a point which arose immediately after the conclusion of the treaty, with regard to the application of the second rule. It appears that Mr. Fish was of opinion that some supplemental explanation between the two governments would be requisite, and, as far as that goes, I admit it will be necessary that some substantive step probably should be taken. That has reference merely to an isolated point, and in no way enters into what has been in dispute to-night. As to the dispute to-night, I do not understand that the right honorable gentleman the member for Oxford University asks us to lay down a number of substantive doctrines of international law over and above what are involved in the three rules. To such an engagement, as I understand it, this motion certainly does not bind us. It would be totally impossible to determine these matters by abstract general rules. If that be so, I trust I am correct in my statement that, so far as I am aware, there is not any substantive difference of opinion between us. (Hear, hear.) I hope I have clearly, if imperfectly, restated what the attorney-general gave as his own opinion—namely, that you have a right to expect that we should take care that our recommendation of the three rules does not carry with it, in whole or in part, in substance or even in shadow, so far as we are concerned, the recitals of the arbitrators as being of any authority in this matter; and I hope the right honorable gentleman the member for Bucks will see that I wish to give the proper interpretation to the words he used as to precision of language. I may state that I heard the speech of the honorable and learned member for the city of Oxford with very different sentiments from those with which I listened to the speeches of the right honorable gentleman the member for the University, my right honorable friend the member for Devonshire, and my honorable friend the member for Orkney. I feel that the concordant expression of opinion generally manifested in the House will tend to strengthen the hands of the government. The object sought will thus be better attained than by the adoption of a motion which would rather have a contrary effect, and appears to me open to grave objection. (Cheers.)

Mr. Hardy, after the statement of the right honorable gentleman, and the distinct disavowal by the right honorable gentleman and the attorney-general of the recitals of the arbitrators, would, with the permission of the House, withdraw his motion. (Hear, hear.)

The motion was by leave withdrawn.