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Foreign Enlistment Bill—Bill 228

Volume 203: debated on Wednesday 3 August 1870

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( Mr. Attorney General, Mr. Solicitor General, Mr. Bruce.)


Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."

said, that the constituency which he represented (Hull) was likely to be extremely affected by hostile proceedings on the part of any European Powers; unfortunately, there was no part of Her Majesty's dominions more likely to be injured by the contest now raging. He very much regretted that the Government did not bring in a Bill shortly after the Report of the Royal Commission in 1868, instead of waiting until war had been actually declared. Under the circumstances the Government ought not to do more than re-enact the present law with such amendments as might be necessary to meet cases like that of the Alabama; in other words, they might take greater powers than they had at present to stop the delivery and despatch of similar vessels. The Bill before the House was in many respects too stringent, but he trusted that considerable concessions would be made in that respect by the Law Officers of the Crown. He objected to the change of jurisdiction. Under the old Act it was the Court of Exchequer that had jurisdiction. It was now proposed by Clause 23, that the duty of deciding upon the forfeiture of a vessel should be given to the Court of Admiralty, in which the mercantile public had very little confidence. He objected that power should be given to any one Judge, without the aid of a jury, to try the question of forfeiture, involving, as it did, the intent of the person who fitted out the ship. That was a point which ought to be determined by a jury, and not left to the decision of any one man. As representing a mercantile community, he protested against the Bill. His constituents were already suffering great privations by the interruption to their trade, but they were willing to submit to a Foreign Enlistment Act, if only its provisions were not strained too much. It should be remembered that neutrals had their rights as well as belligerents.

said, he could not concur with his hon. Friend (Mr. Norwood) in his objection to Clause 23, which gave the Secretary of State power to refer the matter to the Court of Admiralty. He wished to advert to one point which had attracted a great deal of public attention. Complaint had been made that this Bill did not go far enough; that it only prohibited the exportation of ships of war, and did not interfere with the trade in contraband generally. Now, he wished to call special attention to the conduct and policy of that Power which, above all others in the history of the world, had been famous for the observance of neutrality—namely, the United States of America. There was a very important document on this subject—the Message of the President of the United States, issued in 1855, during the course of the Crimean War—which he desired to bring under the notice of the House. At that time the United States had to consider their conduct very carefully with respect to that war. They all remembered the painful circumstances which attended the recall of Sir John Crampton from the United States, on account of his connection with a transaction which, though he was sure nothing contrary to the law of the United States was intended by the British Government, gave the Americans reason to complain, and, no doubt, the conduct of England on that occasion was not to be defended. The President in his Message stated that it was the traditional and settled policy of the United States to maintain impartial neutrality during the wars which from time to time occurred among the Great Powers of Europe; but, notwithstanding the existence of hostilities, the citizens of the United States retained their original right to continue all their pursuits by land and sea, at home and abroad, subject only to the Law of Nations. That, in pursuance of this policy, the laws of the United States did not forbid their citizens to sell to either of the belligerent Powers articles contraband of war, or to take munitions of war or soldiers on board their private ships for transportation, though in doing so the individual citizen exposed his property or person to some of the hazards of war. That the citizens of the United States had sold gunpowder and arms to all buyers without distinction; that their transports had been employed by England and France in conveying munitions of war and bringing home wounded soldiers; and that that involved no interruption of the friendly relations between the Governments of the United States and Russia. Such was the Message of the President, and it was to be observed that it went beyond the permission which was given to English subjects, because in our Foreign Enlistment Act the transport of troops and munitions of war to foreign belligerents was forbidden. He ventured to say that Her Majesty's Government, in declining to extend the scope of the Bill, not only acted upon a principle conformable to the Law of Nations, but were justified by the practice of those States which had been most careful to observe neutrality.

said, he regretted that the hon. Member for Hull should have expressed distrust or want of confidence in any individual Judge whatever. [Mr. NORWOOD was understood to disclaim any intention of doing so.] He regretted it the more because neither the Judge himself nor anyone in his behalf could possibly answer such an insinuation. In legislating Parliament could not inquire into the character of any member of the judicial Bench. There would be an appeal to the Privy Council in civil matters, and with regard to what the hon. Member had said about a jury, it was to be observed that criminal proceedings would still require a jury. In this country there was a large number of tribunals which decided upon matters of the greatest importance without a jury. He believed that questions involving three-fourths, at least, of all the property brought before the Courts were finally adjudicated upon by single Judges without the assistance of gentlemen in a box called a jury. One word as to the observations which had been made by the hon. and learned Member for Oxford (Mr. Vernon Harcourt). He was very sory to hear quoted in that House as law the Message of any President of the United States. Such Messages were generally party productions, made and issued for party purposes, and with a view to the exigencies which might call them forth, and if we were to allow a Message issued by one President upon a particular occasion to be cited in our favour we could not in justice refuse to listen to a vast number issued by other Presidents which were decidedly not in our favour. Why, the hon. and learned Gentleman himself was obliged to admit that the Message from which he had quoted went beyond what, in our view of the Law of Nations, was lawful. Therefore, as a question of policy as well as of law, that Message was of no authority for us. He did not see why the Government should be precluded from entering into communications with other neutral nations upon this question, in order to extend the principles of this Bill to munitions of war. If Parliament wished now to give powers which, to some extent at least, exceeded those hitherto claimed by the Government, it must be admitted that, as the world wont on, modifications in what was called the Law of Nations were admissible.

said, he must deny the right of the hon. Member for Hull (Mr. Norwood) to protest against this Bill as representing the mercantile class in this country, or as expressing their views. If there was one class more than another whose interests, if only properly understood, were involved in the success of the Bill, it was the mercantile body. There was none that had a greater interest in the preservation of peace. And yet that was the class whose interests the hon. Gentleman misrepresented. There was scarcely a single Member in the House who, seeing the evils of the present state of the law, did not desire to amend it. The hon. Gentleman had objected to the substitution of the jurisdiction of the Court of Admiralty for that of the Court of Exchequer. Now, he had some experience in this matter, and he believed that proceedings in the Court of Admiralty would be speedier, simpler, cheaper, and in every respect preferable.

Motion agreed to.

Bill considered in Committee.

(In the Committee.)

Clauses 1 to 3, inclusive, agreed to.

Clause 4 (Penalty on enlistment in service of foreign state).

said, he would propose to leave out the words "not being a British subject, within Her Majesty's dominions," with a view to confine the prohibition to accept a commission or engagement, military or naval, in the service of any foreign State at war with any State at peace with Her Majesty, to British subjects.

Amendment agreed to.

said, he would beg to move in line 5, page 2, after the first word "or" to insert "whether a British subject or not within Her Majesty's dominions," the object being to prohibit any person, whether British subject or foreigner, from inducing another to take service from a foreign State.

said, it could not be intended that two or three Prussians meeting here and agreeing to go and fight against France should be within the penalties of this Act. The Amendment would meet a great part of the difficulty but not the whole of it.

said, that if foreigners wished to recruit for a nation at war they must not do so in this country.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 5 to 7, inclusive, agreed to.

Clause 8 (Penalty on illegal shipbuilding and illegal expeditions).

said, he feared that the word "ship" would apply to vessels which were built without any intention of being used in war.

said, he could assure the hon. Member that it would apply only to ships which were to be used in military or naval operations.

said, the clause was intended to apply to ships to be employed in the service of foreign countries at war. He believed that it would include only ships of war. He thought the Government should endeavour in this clause to meet the case of vessels which were freighted from this country with coal, intended to be withdrawn from them for the use of the ships of war of a belligerent as it might be required. He considered that any friendly Power would have a right to complain if, when we were passing a Bill of this kind we did not prevent that which was to all intents and purposes a breach of the neutrality of this country. He would beg to move in line 21, after "ship," to insert—

"Either as a ship of war, transport, or for the conveyance of stores, coal, materials, or munitions to be used in the prosecution of hostilities."

said, he hoped the Amendment would not be accepted, as it would open a controversy into which it was not desirable for us, as neutrals, to enter at the present moment. We could not as neutrals decide the question whether coal was contraband of war or not. It was the right of the Courts of the belligerent Power to decide themselves what was contraband of war. With regard to what had fallen from the hon. and learned Member for Dover (Mr. Jessel) as to the Message of the President of the United States being no authority, he might say that the practice of nations was laid down by their Executive Governments, and what they thus laid down must be regarded as binding precedents. Indeed, the policy of Washington in 1793 was the foundation of the whole of the modern practice on this point.

said, he also hoped the Amendment would not be agreed to. He would remind the Committee that this Act would furnish the text-book of our liabilities as neutrals, and it would not be wise of us to extend those liabilities.

said, he was afraid the effect of the Amendment would be to prevent the export of coal to the port of a belligerent.

said, he thought the Amendment went too far. It was quite enough if we condemned a transport or store-ship, and it would depend on the facts of each case whether a particular ship was a transport or a store-ship or not. He must object to the statement of his hon. and learned Friend (Mr. Staveley Hill) that this Act would furnish the text-book of our liabilities to other nations. He (the Attorney General) had distinctly stated on the second reading that the Bill was brought in for the purpose of enabling the Government to maintain the honour, dignity, and neutrality of England, and not for the satisfaction of foreign countries.

Amendment, by leave, withdrawn.

Amendment proposed, at the end of the clause to add the words—

"Provided that a person building, causing to be built, or equipping a ship in any of the oases aforesaid, in pursuance of a contract made before the commencement of such war as aforesaid, shall not be liable to any of the penalties imposed by this section if he satisfies the conditions following (that is to say):
  • "(1.) If forthwith upon a Proclamation of Neutrality being issued by Her Majesty he gives notice to the Secretary of State that he is so building, causing to be built, or equipping such ship, and furnishes such particulars of the contract and of any matters relating to, or done, or to be done under the contract as may be required by the Secretary of State;
  • "(2.) If he gives such security, and takes and permits to be taken such other measures, if any, as the Secretary of State may prescribe for ensuring that such ship shall not be despatched, delivered, or removed without the licence of Her Majesty until the termination of such war as aforesaid."—(The Attorney General.)
  • said, he wished to express his satisfaction with the proposed addition to the clause, which to a great extent removed the difficulties he had felt on the subject of the shipbuilding trade.

    said, he must take exception to the word "security" in the 2nd section of the Amendment, which seemed to mean a money security. It was a severe demand to ask for a money security. A personal bond or undertaking ought to be sufficient, and he would suggest that the word "undertaking" should be substituted for "security."

    said, he could not agree with his hon. Colleague's (Mr. Graves's) suggestion. They must trust these matters a good deal to the Government of the day, otherwise the object in view — namely, to prevent the escape of the ship—might be defeated.

    said, he thought the shipbuilders might rely on the Secretary of State not wishing to exact a vindictive security.

    Amendment agreed to.

    Clause, as amended, agreed to.

    Clause 9 (Presumption as to evidence in case of illegal ship).

    said, it was a very strong thing to seek to create by enactment a presumption in a criminal proceeding. What was a presumption? It was a moral conviction produced by the evidence of facts. Either the facts raised that presumption or they did not. If they did, an Act of Parliament was not required to do it; if they did not, they could not create a moral conviction by statute. The mouth of a person who was indicted was shut, and yet it was proposed that they should create a legal presumption against him, even although he was probably the only person who could rebut that presumption. They might be so severe as to defeat their own object, and juries would not convict unless the facts themselves created the presumption.

    said, he would suggest, in order to remove difficulties from the clause, that the words relating to the delivery of a ship to "the agent of a foreign State" should be altered to "any person who to the knowledge of the person building is an agent of such State."

    said, he did not object to this Amendment. That clause was an important one, for although proof might be given in a Court which amounted to a moral certainty, there were some Judges — and he was not blaming them — who would say to the prosecution—"You have not sufficient legal evidence; you have not adduced the proof which is required by law, and therefore the defendant must be acquitted." This description of legislation was by no means new. It had been adopted in the case of Government stores and in other cases with great advantage. Supposing you proved that the builder had taken an order to build a ship for a country at war, if you went a step further and proved that the ship had actually been employed in war you had a primâ facie case against the builder. Then what was the hardship on him? Could he not easily prove the circumstances under which he had taken the order? Wore ships ever built without written contracts? If a ship were built without such a contract, that fact of itself raised a strong presumption against the builder. The object in view was very important, and he hoped the Committee would agree to the clause.

    said, he admitted that the object in view was of great importance; but it was not unimportant that an innocent man should not be convicted. He thought that the presumption ought to be confined to cases of forfeiture of ships in which the builder of the ship could be examined. In a criminal proceeding against himself his mouth would be closed.

    said, he thought a fair solution of the difficulty might be found in giving the builder himself power to give evidence. He did not think, however, that innocent persons were at all likely to be proceeded against under this Bill, and he was of opinion that it would be better to err on the side of giving very stringent powers to the Court than on that of leaving an opening for disastrous breaches of the laws of neutrality.

    said, the clause was very stringent, and, with great respect to the hon. Gentleman who had just spoken (Mr. Rathbone), he must remark that when, in connection with the administration of the law, we spoke of too much stringency we referred to the amount of punishment. It never could be admitted that stringency was desirable in the sense of exposing innocent men to the chance of being convicted. A man might be prevented from calling witnesses. They might be abroad, where subpoenas would not touch them. The accused was to be acquitted if he proved that he did not know that the ship was to be employed in war; but how could he prove that negative.

    said, it would not occur in one case out of a thousand, that the builder of a ship would have the smallest difficulty in proving what his contract was, and under what circumstances it was undertaken.

    said, he would move, as an Amendment, to add the words—"except in any criminal proceeding," his object being to except from the operation of the clause cases in which the builder was put on his trial.

    Amendment proposed, in line 39, at the end of the Clause, to add the words "except in any criminal proceeding."—( Mr. Russell Gurney.)

    Question put, "That those words be there added."

    The Committee divided: — Ayes 26; Noes 73: Majority 47.

    Amendment negatived.

    Amendment ( Mr. Staveley Hill) agreed to.

    Clause, as amended, agreed to.

    Clauses 10 to 18, inclusive, agreed to.

    Clause 19 (Jurisdiction in respect of forfeiture of ships for offences against Act).

    said, he thought due regard should be had to individual rights, and that important questions of fact relating to forfeiture and condemnation of ships ought to be decided by a jury in a Superior Court of Law. Although the Attorney General had denied his right to speak in that House on behalf of the commercial community, with reference to this subject he might say that he had been sent there by a constituency (Hull) which sustained important relations with all the European States, and that he should speak for that commercial community to the utmost of his ability as a humble Member, notwithstanding that the Attorney General was opposed to him on this great question. With regard to the clause under consideration he should take the sense of the House upon it.

    said, he also strongly objected to the proposed removal of the jurisdiction to the Court of Admiralty. In the old Enlistment Acts no such clause as this was inserted, and he hoped the Committee would not ignore those impartial services of a jury which formed so valuable a consideration in carrying out a stringent law.

    said, as the only Member present of the Royal Commission which had considered this subject, he wished to say that the most important decision at which the Commissioners arrived was that of the question now under consideration. In their view the new system required to be placed under a new jurisdiction. The Court of Admiralty, having to decide questions of prize in time of war, was the best fitted to determine questions of neutrality. If this clause were omitted the Royal Commission would have sat in vain.

    said, he thought that cases which involved the question of peace or war should be tried by one of the Superior Courts without a jury; but it was questionable whether any single Judge ought to decide momentous questions, such, as those which might come under the operation of this Bill.

    said, he agreed with the hon. Member for Oxford (Mr. Vernon Harcourt) that this was one of the most vital clauses in the Bill.

    said, he believed foreign nations would raise an objection to these questions being tried by any but the ordinarily recognized tribunal for prize matters, and, if they were allowed to be determined by a jury, would say that they were going to be decided by passions and prejudices. He thought the clause ought to stand.

    said, he wished to explain that the only matter on which he was at issue with the hon. Member for Hull (Mr. Norwood) was not that the hon. Member had not the right to represent his commercial constituents, but that he was not the representative of that class who approved of the Bill. The question before the Committee had been considered with great attention by the Commissioners, who were of great legal weight and authority, and who had come to a unanimous conclusion upon it, and he hoped their decision would not be reversed. The proceedings in the Court of Admiralty would be more summary and cheaper. His own experience of the Court of Exchequer determining questions of this kind had led him to believe that it was desirable that the present jurisdiction should be changed.

    Question put, "That the Clause, as amended, stand part of the Bill."

    The Committee divided:—Ayes 105; Noes 14: Majority 91.

    Clause agreed to.

    Clause 20 agreed to.

    Clause 21 (Officers authorized to seize offending ships).

    said, the object of the clause was to prevent the escape of suspected ships from the harbours of the kingdom till the Secretary of State had been communicated with. The clause gave an ad interim power of seizure.

    said, the object was to give power to any officer who saw a ship about to escape to prevent such escape.

    said, he thought the unnecessary multiplication of such powers only tended to increase the risk of quarrels with other nations.

    said, he thought the powers given to officers were too extensive.

    said, the officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape It was a most important power; but it was only to be used in case of emergency, and if any wrong was done by the seizure there would be compensation.

    said, he wished to ask, was such stringent legislation in practice in any country of the world?

    said, the clause was copied from the Merchant Shipping Act, which had been in force for 20 years without any complaint.

    Clause agreed to.

    Remaining clauses agreed to.

    Bill reported; as amended, to be considered To-morrow, and to be printed. [Bill 258.]

    Gas And Water Facilities Bill

    Lords Amendments considered; several agreed to; one disagreed to.

    Committee appointed, "to draw up Reasons to be assigned to The Lords for disagreeing to the Amendment to which this House hath disagreed:"—Mr. SHAW LEFEVRE, Mr. Secretary BRUCE, Mr. DODSON, Mr. SOLICITOR GENERAL for IRELAND, Lord JOHN HAY, Mr. JAMES LOWTHER, Mr. GRAVES, Mr. GLYX, and Mr. CAWLBY:—To withdraw immediately; Three to be the quorum.

    Reasons for disagreeing to Lords Amendment reported, and agreed to.

    To be communicated to The Lords.

    Consolidated Fund (Appropriation) Bill

    On Motion of Mr. DODSON, Bill to apply a sum out of the Consolidated Fund to the Service of the year ending the thirty-first day of March, one thousand eight hundred and seventy-one, and to appropriate the Supplies granted in this Session of Parliament, ordered to be brought in by Mr. DODSON, Mr. CHANCELLOR of the EXCHEQUER, and Mr. STANSFELD.

    Bill presented, and read the first time.

    House adjourned at ten minutes before Six o'clock.