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. (h.) That any warrant of the secretary of state shall be laid before Parliament. (i.) That the proceedings herein provided shall not affect the power of the Crown to proceed if it thinks fit to condemnation of the ship.

(.) 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 proeured 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 protection of the neutrality of this realm, or if any such prize shall be brought within the jurisdiction as aforesaid by any subject of the Crown, or of such belligerent government, having come into possession of such prize with notice of the unlawful fitting out of the capturing vessel, such prize should upon due proof in the admiralty courts at the suit of the original owner of such prize or his agent, or of any person authorized in that behalf by the government of the state to which such owner belongs, be restored. VII. That in time of war no vessel employed in the military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or 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 con-sider 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 in

creased efficiency, and will, so far as we can see, have been brought into full conformity with your Majesty's international obligations.

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

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

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

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

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

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

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

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 shipbuilding trade of the country. It is needless to enlarge on the capital importance of that trade. As a commercial question it is one of the greatest consequence. It is perhaps, the trade in which alone Great Britain still retains an unrivaled superiority. Everything which tends unneces sarily 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 the fact that at the present moment by far the greater proportion of the existing ironclad navy of Great Britain has been constructed in the yards of private shipbuilders. These private yards have been created and are maintained at no expense to the nation by the custom of foreign states. Most of the powers of Europe rely for their naval construction on the private yards of English shipbuilders. In this respect, therefore, apart from the commercial question, the nature of this trade involves public consequences of the utmost political importance. The monopoly of the construction of the iron-clad navies of the world has become a new and gigantic arm of our maritime superiority. England has become, and is daily still more becoming, the naval dockyard of Europe. One effect of discouraging this trade must be either that foreign powers will construct for themselves, or else that some other nation whose restrictions are less rigid and whose trade is more free shall construct for them. Either alternative will deprive Great Britain of a great and special national advantage, which she now enjoys owing to her manufacturing skill and her peculiar resources in coal and iron. If Eng*Mr. C. S. A. Abbott, of the Foreign Office, was attached to the commission and in attendance at the meetings.

land should unhappily be engaged in an European war, we should lose the incalculable benefit of the control we now possess over the naval reserves of Europe. All these reservoirs of naval construction which the demands of foreign governments at present support in this country, can now in case of need be diverted from the foreign supply and be made immediately available for our own 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 independent of this country in a manner which they now are not. Or they will build elsewhere, and the country to which they resort will then acquire the advantage we shall lose. This will be the first result. But the indirect effect on our own resources will be equally serious. At present, in time of peace, we are able to limit ourselves to comparatively moderate, though still enormously expensive, public establishments, because we know that in time of war the private yards will supplement our resources to an almost unlimited extent. But, if this private trade should cease or be seriously diminished, we must keep up constantly in time of peace such establishments as will be adequate to our utmost wants in time of war. The whole reserve of constructing power which we now possess in the private yards must be supplied by the public establishments. And consequently all that expenditure in plant, machinery, and the maintenance of skilled workmen, which is now defrayed by the custom of the foreigner in the private yards, must in future be permanently sustained out of the public taxation. Few people conversant with the subject will dispute that if the yards which now manufacture iron-clads for the world were abolished, the navy estimates must be largely increased in order to establish and keep on foot equal means of construction in the public 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 private 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 following title:

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

By the first section," if any citizen of the United States *

*

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

*

*

This bill was much discussed in the Senate, and in the end the first section above quoted was struck out, and the title of the statute altered accordingly. (These facts are stated on 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.

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

The great advantage of the summary and extensive preventive powers which the present report recommends should be conferred on the executive to stay the dispatch of vessels which may compromise our neutrality, is that they supply a reason which might justify us in mitigating the strictness of the penal code rather than an argument for augmenting its rigor. The notorious indisposition of juries to enforce such penal

ties creates a mischief which should be avoided. We may sustain the great inconvenience of making laws which we shall find it practically impossible to execute, because they exceed in severity the standard of public opinion. The present report recommends the creation of an absolute, and I conceive a sufficient power to stop all vessels which ought to be stopped. The case of the Birkenhead rams, stopped by Earl Russell, is an instance of the exercise of the sort of power which it is the object of these recommendations to make more effectual and easy. As soon as reasonable grounds of suspicion arise, the power will be put in force. But assuming the vessel to be stopped, if there remains behind a statute which makes the original building penal, how are we to justify not proceeding to prosecute the builders after the vessel is stopped? If such a prosecution is not instituted the law is brought into contempt; if it is instituted the law will probably break down-results in either case to be greatly deprecated. When juries are called upon to inflict on their own countrymen, on behalf of foreigners, severe penalties for acts which are not punished but are held lawful in all other countries, is it not more than probable that popular sentiment will correct the severity of the law? It must be remembered that in adding the word "building" to the penal part of the act we are distinctly creating a new crime. We are making our own subjects liable to criminal penalties for acts which are clearly lawful by the law of nations, which are lawful by the law and practice of all nations, and which have hitherto been lawful by the law and practice of our own people. We shall have not only to enact a new crime which does not exist, but to create an opinion and conscience of criminality which it is more difficult to inspire.

The authors of the English foreign enlistment act distinctly declined to carry back the offense to a period of the transaction which in no way partook of an offensive character and had no obvious or necessary connection with an attitude of war. The American government equally, after mature consideration, refused to adopt the alteration now proposed. They did so, upon principles of policy, by departing from which we may involve ourselves in inextricable difficulties, and probably not command on the part of other nations any corresponding reciprocity. It may be urged that whilst it is proposed to confer these extended powers, a large discretion is left to the govern ment to determine how far they shall be put in operation. But as a fact, this discretion will be more nominal than real, and with the view of precluding international complaints, it will be absolutely null. Whatever power is conferred, in effect creates an obligation on the part of the government to put it in force, and a responsibility on the part of the nation if any neglect to enforce it should occur. If the government are authorized to interfere by prosecution and seizure at all stages of the building, then, at the first suggestion of any belligerent power they will be compelled, almost without discretion, to interfere, because, should they decline to do so, their responsibility and that of the nation will be involved, even by an error of judgment, in a case where the obligation is admitted. Thus we shall be made liable for acts for which at present no nation would hold us responsible. The reason why it has been considered inexpedient and impossible to enforce a prohibition of the exportation of munitions of war from the neutral territory is because to do so would involve a system of repression and espionage on the part of the neutral government which would be wholly intolerable to the trade of its subjects. If the thing is forbidden it is the duty of the neutral government to see that the prohibition is in fact enforced. But in order to enforce it we must establish on every occasion of war in foreign countries a sort of belligerent excise in the bosom of our own people. And this is precisely the evil in which we shall involve ourselves by undertaking to prohibit "building" with an unlawful intent. If we create and assume this duty we are bound to execute it, and in order to execute it we must ascertain at our own peril the intent and the future destination of every keel laid in the United Kingdom and even in our most distant possessions. If this is done honestly and efficiently it will place the whole ship-building trade under a supervision of a most odious and oppressive description, which would hardly be endured even for the security of our own interests, and certainly will not be tolerated for the advantage of foreign states.

There are those who reconcile themselves to such a course by supposing that in fact this new crime would never practically be prosecuted in its early stage. If so, then to what purpose is it created? But in fact if it is made a crime the neutral government must proceed against it in its earliest inception at the risk of being held responsible for what may happen in its further progress. There is an immense difference in this respect between the offense of arming and fitting out, which, especially in modern warfare, is a fact sufficiently obvious and patent, and may be easily detected in time to prevent the dispatch of the vessel. But if all building with a certain intent is to be constituted a crime which it is part of the duty of the government to repress, then there is not a keel laid, a bolt driven, or plank sawn in any yard in the country which may not at every instant be exposing the nation to a responsibility hitherto unknown. The objections which forcibly strike me are these:

(1.) We shall create a new duty which it will be difficult and probably impossible to

execute.

(2.) In creating such a duty we shall incur a new responsibility by its non-execution. (3.) The attempt to execute it will be odious to our own subjects, and the failure to execute it will be a just ground of complaint to foreign states.

(4.) We shall be placing the trade of our own country at an uncalled for disadvantage as compared with that of the rest of the world.

Either the creation of this new offense will or will not tend to embarrass and injure the ship-building trade of the country. If it will not, as some believe, it would be satisfactory that this should be clearly established. I confess if I were satisfied of this, my objections to the course proposed would be in a great measure removed. But if, as I believe, the necessity of a perpetual official supervision and interference would greatly hamper, and probably ultimately destroy, this branch of our commerce, that again is a point on which I think the nation has a right to expect that we should afford them the means of forming a sound judgment. It may be that for adequate objects we should be willing to sacritice such a trade. But it is well that we should estimate the amount of the sacrifice, being as it is wholly gratuitous and without example in the case of other nations. I regret that the commission have not taken evidence to show how far the proposed prohibition would in fact affect this particular trade and the general naval resources of the country. I venture to think that before any legislation on this matter is attempted, such an inquiry should be instituted. If the preventive powers of detention recommended in the report are (as I believe) sufficient for all practical purposes and the performance of all legitimate duties, every argument of policy would dissuade us from carrying the law any further.

I entirely share the desire to make abundant provision that the duties of neutrality should be honestly, fully, and effectually carried out. But in creating new duties, which do not at present exist, either in principle, precedent, or practice, it is worth while to consider whether by exaggerating the obligations of neutrality we are not creating a discouragement to its practice. We may end by making the duties of neutrality so irksome and intolerable, that on a mere calculation of expediency a prudent government would prefer to go to war. And thus we may defeat the end we have in view by the means we adopt to attain it.

There is one condition of things for which it seems especially necessary to make provision. A contract may be made by a foreign government for the building in this country of an iron-clad in time of peace and without any contemplation of present war. Such vessels require many months for completion and their cost is enormous. The foreign government may have paid several hundred thousand pounds by instalments during the construction of the vessel, and the property in the incomplete vessel will have passed to the foreign government. What is to be done to such a vessel in case the contracting government is involved subsequently in war? Is the vessel to be forfeited and the builder to be prosecuted because he proceeds with a contract which was perfectly lawful when it was made? If so, what chance is there for the future that any foreign government will ever build in England, or indeed that any English builder will Venture to undertake their contracts? This singular state of things might easily arise. The recent war between Austria and Prussia lasted less than two months; a vessel might have been contracted for by one of those governments with an English shipbuilder; the vessel might have been half finished before the war, and wholly completed after the war. In respect of the work done before the war and after the war, i. e. for the beginning and ending of the ship, the ship-builder would be innocent; but in respect of the work done during the few weeks of the war, i. e. for the middle of the ship, he would be guilty of a misdemeanor and subject to fine and imprisonment. This may seem an extreme illustration, but it shows the necessity of providing some protection for contracts bona fide made and commenced in time of peace, unless it is intended wholly to prohibit the trade.

There is one other matter which I should gladly have seen embodied in the recommendations of the report. A strong feeling has recently grown up against the recognition of belligerent commissions granted to vessels on the high seas, by which such Vessels become at once raised to the position of lawful belligerent cruisers, though they start from no belligerent port, and, in fact, derive no support from the natural and legitimate naval resources of those on whose behalf they wage war. It seems to me that for all reasons it is wise to discourage such a practice. As there is no rule of international law which forbids such delivering of commissions on the high seas, we cannot of course refuse to recognize the title of such a cruiser to all the legitimate rights of war in places beyond our jurisdiction. But we are masters of our own actions and our own hospitality within the realm. Though, therefore, we cannot dispute the validity of such a commission on the high seas, or the legality of captures made by such a vessel, we may refuse to admit into our ports any vessel which has not received its commission in a port of its own country. By so doing we should be acting strictly within the principles of the law of nations, and our example would very probably be followed by other maritime states, and thus in the end tend to repress the practice altogether. For this purpose I should have been very glad if the commission had thought fit to recommend that in time of war no armed vessel engaged in hostilities should