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REPORT OF THE NEUTRALITY LAWS COMMISSIONERS, TOGETHER WITH AN APPENDIX CONTAINING REPORTS FROM FOREIGN STATES, AND OTHER DOCUMENTS.

[Presented to both houses of Parliament by command of her Majesty.]

Commission.

Report.

CONTENTS.

Reasons given by Mr. Vernon Harcourt for dissenting from certain portions of the report.

Appendix:

I. British foreign enlistment act.

II. United States foreign enlistment act.

· III. Historical memorandum, by Mr. Abbott.

IV. Reports from foreign states.

Proclamations, &c., issued by several foreign states on breaking out of the civil war in America.

V. British proclamations of neutrality.

VI. Regulations and instructions published by her Majesty's government during the civil war in America.

VII. Memorial from Liverpool ship-owners suggesting an alteration in the foreign enlist

ment act.

COMMISSION.

Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, defender of the faith.

To our right trusty and well-beloved Councillor Robert Monsey Baron Cranworth; our right trusty and well-beloved Richard Monckton Baron Houghton; our right trusty and well-beloved Councillor Sir Hugh McCalmont Cairns, knight, a judge of the court of appeal in chancery; our right trusty and well-beloved Councillor Stephen Lushington, doctor of civil law, judge of the high court of admiralty; our right trusty and wellbeloved Councillor Sir William Erle, knight; our trusty and well-beloved Sir George William Wilshere Bramwell, knight, one of the barons of the court of exchequer; our trusty and well-beloved Sir Robert Joseph Phillimore, knight, doctor of civil law; our advocate general; our trusty and well-beloved Sir Roundell Palmer, knight; our trusty and well-beloved Travers Twiss, doctor of civil law; our trusty and well-beloved William George Granville Venables Vernon Harcourt, esquire, one of our counsel learned in the law; our trusty and well-beloved Thomas Baring, esquire; our trusty and wellbeloved William Henry Gregory, esquire, and our trusty and well-beloved William Edward Forster, esquire, greeting:

Whereas we have deemed it expedient that a commission should forthwith issue to inquire into and consider the character, working, and effect of the laws of this realm, available for the enforcement of neutrality during the existence of hostilities between other states with whom we are at peace; and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency and bringing them into full conformity with our international obligations:

Now know ye, that we, reposing great trust and confidence in your knowledge and ability, have authorized and appointed, and do by these presents authorize and appoint, you the said Robert Monsey Baron Cranworth, Richard Monckton Baron Houghton, Sir Hugh McCalmont Cairns, Stephen Lushington, Sir William Erle, Sir George William Wilshere Bramwell, Sir Robert Joseph Phillimore, Sir Roundell Palmer, Travers Twiss, William George Granville Venables Vernon Harcourt, Thomas Baring, William Henry Gregory, and William Edward Forster, to be our commissioners for the purposes afore

said.

And for the better effecting the purposes of this our commission, we do by these presents give and grant to you, or any five or more of you, full power and authority to call before you such persons as you shall judge likely to afford you any information upon the subject of this our commission, and also to call for, have access to, and examine an such books, documents, registers, and records as may afford the fullest information on the subject, and to inquire of and concerning the premises by all other lawful ways and means whatsoever.

And we do by these presents will and ordain that this our commission shall continue in full force and virtue, and that you our said commissioners, or any five or more of you, may from time to time proceed in the execution thereof, and of every matter and thing therein contained, although the same be not continued from time to time by adjourn

ment.

And we do further ordain that you, or any five or more of you, may have liberty to report your proceedings under this commission from time to time if you should judge it expedient so to do.

And our further will and pleasure is that you do, with as little delay as possible, report to us under your hands and seals, or under the hands and seals of any five or more of you, your opinion upon the several points herein submitted for your consideration.

And for your assistance in the due execution of this our commission, we have made choice of our trusty and well-beloved Francis Phipps Onslow, esquire, barrister-at-law, to be secretary to this our commission, and to attend you, whose services and assistance we require you to use from time to time as occasion may require.

Given at our court at St. James's the 30th day of January, 1867, in the 30th year of our reign.

By her Majesty's command.

S. H. WALPOLE.

To the Queen's most excellent Majesty:

REPORT.

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

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

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

I. That it is expedient to amend the foreign enlistment act by adding to its provis ions a prohibition against the preparing or fitting out in any part of her Majesty's dominions of any naval or military expedition to proceed from thence against the territory or dominions of any foreign state with whom her Majesty shall not then be at

war.

II. That the first paragraph of section 7 of the foreign enlistment act should be amended to the following effect:

If any person shall within the limits of her Majesty's dominions

(a.) Fit out, arm, dispatch, or cause to be dispatched, any ship with intent or knowl

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edge that the same shall or will be employed in the military or naval service of any foreign power in any war then being waged by such power against the subjects or property of any foreign belligerent power with whom her Majesty shall not then be

at war;

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

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

III. That in order to enable the executive government more effectually to restrain and prevent attempted offenses against section 7 of the foreign enlistment act, additional provisions to the following effect should be inserted in the statute:

(a.) That if a secretary of state shall be satisfied that there is a reasonable and probable cause for believing that a ship which is within the limits of her Majesty's dominions has been or is being built, equipped, fitted out, or armed, contrary to the enactment, and is about to be taken beyond the limits, or that the ship is about to be dispatched contrary to the enactment, such secretary of state shall have power to issue a warrant stating that there is such a reasonable and probable cause for believing as above aforesaid, and upon such warrant the commissioners of customs or any other person or persons named in the warrant shall have power to arrest and search such ship, and to detain the same until it shall be either condemned or released by process of law, or in manner hereinafter mentioned.

(b.) That the power hereinbefore given to a secretary of state may, in parts of her Majesty's dominions beyond the seas, be exercised by the governor or other person having chief authority.

(c.) That power be given to the owner of the ship or his agent to apply to the court of admiralty of the place where the ship is detained, or, if there be no such court there, to the nearest court of admiralty, for its release.

(d.) That the court shall put the matter of such detention in course of trial between the applicant and the Crown, with usual admiralty appeal to the privy council.

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

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

(9.) That if the court shall be of opinion that there was not reasonable and probable cause for the detention, and if no such cause shall appear in the course of the proceedings, the court shall have power to declare that the owner ought to be indemnified by the payment of costs and damages, which, in that case, shall be payable out of any moneys legally applicable by the commissioners of the treasury for that purpose. (4.) That any warrant of the secretary of state shall be laid before Parliament. (i) That the proceedings herein provided shall not affect the power of the Crown to proceed, if it thinks fit, to the condemnation of the ship.

(k.) That the following exceptions be made from this resolution:

1. Any foreign commissioned ship.

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

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

V. That the forms of pleading in informations and indictments under the foreign enlistment act should be simplified.

VI. That if, during the continuance of any war in which her Majesty shall be neutral, any prize not being entitled to recognition as a commissioned ship of war shall be brought within the jurisdiction of the Crown by any person acting on behalf of, or under the authority of, any belligerent government, which prize shall have been captured by any vessel fitted out during the same war for the service of such government whether as a public or a private vessel of war, in violation of the laws for the protec

6 A C-VOL. IV

tion of the neutrality of this realm, or if any such prize shall be brought within the jurisdiction as aforesaid by any subject of the Crown, or of such belligerent government, having come into possession of such prize with notice of the unlawful fitting out of the capturing vessel, such prize should, upon due proof in the admiralty courts, at the suit of the original owner of such prize or his agent, or of any person authorized in that behalf by the government of the state to which such owner belongs, be restored. VII. That in time of war no vessel employed in the military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted into any port of her Majesty's dominions. In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with your Majesty's international obligations.

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

We have subjoined, in an appendix to this report, certain papers relating to the laws of foreign countries on this subject, which have been communicated to us by your Majesty's secretary of state for foreign affairs, together with a short historical memorandum, prepared by Mr. Abbott* for our information, and some other documents illustrative of the subject.

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

CRANWORTH.
HOUGHTON.
CAIRNS.

[L. S.]

[L. S.]

[L. S.

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

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

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

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

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

My apprehension is lest such an extension of the law should unnecessarily-and if unnecessarily then unwisely-interfere with the ship-building trade of the country. It is needless to enlarge on the capital importance of that trade. As a commercial question it is one of the greatest consequence. It is, perhaps, the trade in which alone Great Britain still retains an unrivaled superiority. Everything which tends unnecessarily to hamper or embarrass it must be regarded with suspicion and adopted with caution. It is not, of course, argued that the interests of a trade, however valuable, should not yield to considerations of imperial necessity and of international obligation, if there be such an obligation. But this particular branch of trade has a special national value which belongs to hardly any other. Upon it depend in no small degree those naval resources which constitute the main defense of the realm. I believe it is

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

the fact that at the present moment by far the greater proportion of the existing iron-
clad navy of Great Britain has been constructed in the yards of private ship-builders.
These private yards have been created and are maintained at no expense to the nation
by the custom of foreign states. Most of the powers of Europe rely for their naval
construction on the private yards of English ship-builders. In this respect, therefore,
apart from the commercial question, the nature of this trade involves public conse-
quences of the utmost political importance. The monopoly of the construction of the
iron-clad navies of the world has become a new and gigantic arm of our maritime supe-
riority. England has become, and is daily still more becoming, the naval dock-yard of
Europe. One effect of discouraging this trade must be either that foreign powers will
construct for themselves, or else that some other nation, whose restrictions are less
rigid and whose trade is more free, shall construct for them. Either alternative will
deprive Great Britain of a great and special national advantage which she now enjoys,
owing to her manufacturing skill and her peculiar resources in coal and iron. If Eng-
land should unhappily be engaged in a European war, we should lose the incalculable
benefit of the control we now possess over the naval reserves of Europe. All these
reservoirs of naval construction which the demands of foreign governments at present
support in this country can now, in case of need, be diverted from the foreign supply
and be made immediately available for our own defense. If this trade is discouraged
and possibly destroyed, the consequences are obvious. Foreign governments must
build for themselves the vessels we now build for them. They will, therefore, be inde-
pendent of this country in a manner which they now are not. Or they will build
elsewhere, and the country to which they resort will then acquire the advantage we
shall lose. This will be the first result. But the indirect effect on our own resources
will be equally serions. At present, in time of peace, we are able to limit ourselves to
comparatively moderate, though still enormously expensive, public establishments,
because we know that in time of war the private yards will supplement our resources
to an almost unlimited extent. But if this private trade should cease or be seriously
diminished, we must keep up constantly in time of peace such establishments as will
be adequate to our utmost wants in time of war. The whole reserve of constructing
power which we now possess in the private yards must be supplied by the public estab-
lishments. And consequently all that expenditure in plant, machinery, and the main-
tenance of skilled workmen, which is now defrayed by the custom of the foreigner in
the private yards, must in future be permanently sustained out of the public taxation.
Few people conversant with the subject will dispute that if the yards which now man-
ufacture iron-clads for the world were abolished, the navy estimates must be largely
increased in order to establish and keep on foot equal means of construction in the pub-
lie dock-yards. We have a dozen private yards in the country which could in a limited
time turn out vessels as powerful as any in the English navy, and which have in fact
constructed many of the best ships we possess. Relying on this reserve of producing
power we are able to economize our resources and to diminish our stock. But if these
establishments cease, we must always be prepared to supply their place at a far greater
cost to the country. It is also deserving of consideration that the competition of these
private yards among one another and with the government dock-yards keeps up probably
a higher standard of excellence than could be obtained by mere official supervision.
It will, therefore, be seen that the question is by no means one of the interest of pri-
vate ship-builders, but does in fact involve a great question of national resource and
public economy.

It is worthy of remark that when, in the year 1817, the Congress of the United States
were called upon to alter and amend their foreign enlistment act, the bill as reported
by the Committee on Foreign Affairs in the House of Representatives bore the follow-
ing title:

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

.

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

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

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