CASE OF THE CAGLIAR1. (Hansard, 15 March 1858)

THE CHANCELLOR OF THE EXCHEQUER

With the permission of the House I wish now to state that when we accepted office the question of the Cagliari was, with one exception, the first that engaged our attention, the circumstances being such as to demand the immediate and most serious and anxious consideration of the Government. At that time, after the greatest deliberation and investigation, it was the unanimous opinion of the Cabinet that the jurisdiction of the King of Naples had been acknowledged by our predecessors in office, and that we were consequently precluded from taking any steps in contravention of that decision. The jurisdiction of the King of Naples had, it appeared to us from the papers from which alone we could form an opinion on the subject, been absolutely admitted by our predecessors; and, with reference to those other circumstances which were so frequently alluded to in the debate last Friday, I beg to state that they also had been under the consideration of our predecessors; that the opinion of the law officers of the Crown had been taken, and taken more than once, after our predecessors had obtained a knowledge of those other circumstances; and it appeared to us, so far as we could form an opinion from the documents in our possession, that after the knowledge of those other circumstances, and after their consideration by the law officers of the Crown, the jurisdiction of the King of Naples was still recognised, and in no manner impugned by our predecessors. In this state of affairs it was our opinion that, according to the rules which regulate the affairs of nations, it was not open to us any longer to impugn that jurisdiction. We had then to consider what, under the circumstances, was the best we could do to assist our countrymen in the unhappy circumstances in which they found themselves. It was our opinion that the best course was to send instantly a person of character and influence to Naples, instructing him to insist upon the immediate trial of our countrymen, and to give them by all means and methods the utmost assistance and aid that he could. But when the discussion took place on Friday night the noble Lord the Member 178 for Tiverton (Viscount Palmerston) rose and stated, in a manner most unexpected by us, that the late Government were considering again the case of the Cagliari previous to their retirement from office. I am bound to say that a careful examination of all the papers rendered that statement on the part of the noble Lord one for which we were entirely unprepared; and I feel it due to ourselves to add that a minute, laborious, and subsequent examination of those documents affords no clue whatever to the information which the noble Lord communicated to the House on Friday night. But I accept without hesitation a declaration made in Parliament by the late First Minister of the Crown, and it is impossible for myself and my colleagues not to perceive what must be the inevitable consequence of such a declaration. It entails upon us a great responsibility—a responsibility perfectly unexpected as well as great—but a responsibility from which we do not shrink. We have therefore felt it our duty, under those new circumstances, for which we were quite unprepared, to submit the case to the present law advisers of the Crown. We now deem ourselves perfectly free from that engagement which we apprehended bound the Government and State of England, and when we have obtained the opinion of the law officers of the Crown, and deliberated upon it, our duty will be to do what we think is for the interests of law, of right and of justice. We shall act without fear or favour, whether we may deem it our duty to recognize the jurisdiction of a Sovereign, or to vindicate the rights of our fellow-subjects. We have given directions that all the papers connected with the management of the Cagliari case by our predecessors should be prepared and laid with all reasonable despatch before Parliament. They are more voluminous than the House perhaps imagines; but no unnecessary delay will take place in their production. It is also my duty to state that, after great deliberation, while perfectly aware of the inconvenience which under ordinary circumstances would accrue by submitting to Parliament the opinions of the law officers of the Crown, we have arrived at the conclusion that in the peculiar and exceptional circumstances of the present case we ought to lay the opinions of the law officers of the Crown before the House. I hope the House will understand that in our judgment there are circumstances in 179 the case of the Cagliari which render it expedient that an exception should be made to a rule that ought to be generally observed. The remarks of the noble Lord the Member for London (Lord John Russell) were perfectly just so far as they related to the mode by which Parliament ordinarily becomes acquainted with the opinions of the law officers of the Crown, or with so much of them as Ministers may deem it expedient for the public service to publish; but the noble Lord will recollect that in the present instance there is no diplomatic machinery, in consequence of the cessation of diplomatic intercourse with Naples, by means of which the desired information could be imparted. Under these circumstances we think it best to place the opinions of the law officers of the Crown before the House. No time will be lost in so submitting them to the consideration of Parliament, and meanwhile I beg to assure the House that, freed by the declaration of the noble Lord the Member for Tiverton from the engagement by which we considered ourselves bound, we hope we shall exercise the utmost energy and prudence in the management of an affair that undoubtedly demands our most serious attention and our most earnest solicitude.

§ VISCOUNT PALMERSTON

I am very glad to learn from the right hon. Gentleman that the Government feel themselves at liberty to take this matter into consideration, and that they intend to lay before Parliament the whole of the papers connected with the case — not only, of course, the opinions given by the law officers of the late Government, but also, no doubt the opinions of the law officers of the present Government. It is perfectly true, as the right hon. Gentleman stated, that the late Government did practically acknowledge the jurisdiction of the Government of Naples in the case of these persons. For a considerable time we were unable to ascertain where it was that the capture was made, and the impression we had was that the capture was made within the territorial jurisdiction of the King of Naples. There was no ground, there- 180 fore, on which we could dispute the competency of the Neapolitan Courts. After a considerable time there came from Naples documents, — depositions, accompanied by a little sketch, which the right hon. Gentleman is well aware of, showing the place where the capture was made, and that the vessel was met six miles south-west from the island of Capri, beyond, therefore, the territorial jurisdiction of Naples. We then took the opinion of the law officers of the Crown; but there was nothing in the opinion we received which led us to think that we were entitled to dispute the competency of the Neapolitan Courts. The matter remained in doubt on the material point on which it must turn—namely, whether the capture was forcibly made, or whether the captain of the Cagliari willingly placed himself under Neapolitan jurisdiction. The opinion was that if the capture was made entirely by force on the high seas we should have had a right to claim the English engineers; but if, on the other hand, there was a voluntary surrender our right would not have been such as it otherwise would have been. This was the matter in doubt. It appeared clear that after the landing of the refugees at Sapri the captain and crew of the Cagliari determined to go to Naples for the purpose of giving themselves into Neapolitan jurisdiction and reporting the whole of the proceedings, and they were on their way to Naples when they met the Neapolitan frigates and gave themselves up. The Neapolitan frigates not knowing what their intention was, did what is usual on such occasions—fired a gun for the purpose of bringing them to; but the captain went voluntarily on board, and gave himself up to Neapolitan jurisdiction. On these grounds we were advised that it was not that clear case of forcible seizure on the high seas which entitled us to make an absolute demand on the Neapolitan Government for the surrender of the two engineers. A demand made must of course be supported by force, and we felt that when a step was to be taken which might eventually and probably would lead to the necessity of employing force to carry it into effect, we should not have stood justified in adopting such a proceeding unless we were informed by our law advisers that we had a clear case of right against the Neapolitan Government which would justify us in resorting to extreme measures. So stood the matter; and when I stated the other day that the question was still under the 181 consideration of the Government when they left office, what I referred to was that we were expecting further documents from Naples, and from the Sardinian Government with respect to the demand made by the latter for the restitution of the vessel: because, if that demand were acceded to by the Neapolitan Government, and the vessel were restored, then, undoubtedly, our claim for the restitution of the two engineers who were on board the vessel would have assumed a different character from what it had before. That is what I referred to; and I think the right hon. Gentleman will find—though I know not whether information on this head may he before the Government or not—that we were expecting, so far as I am informed, further documents from the Sardian Government with respect to the claim they were making on the Government of Naples. I am glad that the right hon. Gentleman says that he has no objection to laving the papers before the House, and when they are presented hon. Members will then be more fully masters of the case than they possibly can by any verbal statements made on one side or the other.