THE EARL OF CARNARVONsaid, he wished to put to the noble Lord the Foreign Secretary a question of some importance. It would be in the recollection of the House that on Friday night last he had put a Question to the Foreign Secretary with reference to a British subject who had been arrested and detained in prison for a considerable time in the United States, and—not to use a harsher term—subjected to considerable ill-treatment under the warrant of Mr. Seward. Since that time he had received fresh information relating to other cases, which were still worse than that which he had before mentioned, and he was anxious to have whatever information the noble Earl opposite could furnish with regard to them. He was informed that three British subjects were at this moment detained in prison in the Federal States, where they had been between four and five months, on secret charges, without a single allegation of any sort being made, far less proved, against them. He was informed that no inquiry had been made into their cases, and they had even been refused an inquiry, unless they consented, in the first instance, to take the oath of allegiance to the United States. If this information which he had received were correct, and these persona had been 103 so illegally arrested and detained, there was not a moment to lose in obtaining an explanation of the exact position of affairs. The prisons of the United States at this moment were crowded with prisoners. Into one of the prisons—Fort Lafayette—had been crowded a great number of prisoners of every rank and position—and among them were men of substance and intelligence, who had been brought up in affluence and great social refinement. There were representatives there of all the liberal professions—members of the judicature, members of the press, some ten or eleven representatives of the State of Maryland, and men of all the best classes of American citizens, who had been arrested, dragged from prison to prison, suffering every hardship, and, at this moment, they were confined for an indefinite period. With these American citizens in American prisons that House, of course, had nothing to do; they were not concerned in the matter, and he should he the last man to ask the House or the Government to interfere; but, in so far as their condition threw light on the condition of British subjects there confined, it was an important point, and he felt sure that neither the House nor the country could be indifferent to it. The state of the prisoners he understood to be this: In this fortress there were four small casemates and two larger battery-rooms in which prisoners were confined—all the chambers being constructed of brick or stonework, and lighted by small embrasures or large folding doors, which ensured an atmosphere alternately saturated with damp, alternately suffocating from heat. In one of these chambers, fourteen feet by twenty-four feet, there were confined—at least, that was the case a few weeks ago—twenty-three political prisoners, of whom two-thirds were placed in irons; and in one of the battery-rooms between thirty and forty persons were confined. During the day there was often too much ventilation, though, at the occasional caprice of the guards, blinds and shutters were placed against the windows; but at night the ventilation was so imperfect that the air became foul and oppressive. In every sense the accommodation was bad. In very few cases were there beds or bedding; in none the necessaries, or decencies even, of prison life. The food was of the coarsest description. Even the water supplied for drinking was said to be foul, while for other purposes only salt water 104 was provided. In one of the worst of these places, where prisoners were crowded together in this manner, where there was no possible accommodation for cleanliness and for decency, the state of things was said to be something very little better than the middle passage. In one of these battery-rooms fever had broken out and was spreading rapidly to the neighbourhood. It was in these prisons that these British subjects were confined. He had the fact upon authority which he could not doubt, though, of course, he could not state it on his own personal responsibility; still the authority was such that he could entertain no doubt on the subject. He had been furnished with an account of the names and conditions of the persons so confined. The first was Charles Green, a British merchant, long resident at Savannah, who came from Liverpool. As a proof that his connection with this country had been maintained, and that he was bond fide a British subject, he had a son now at Liverpool at school. The second was Andrew Lowe, also a British merchant at Savannah, who at this moment had two daughters at school at Brighton. He could not give the name of the third; but he was described as an Irish navvy. He was a labouring man, who went over from Ireland in October, 1860, in order to find an uncle engaged in some railway contracts at Harper's Ferry, and he was found by the Federalists in that neighbourhood. They offered him the oath of allegiance, and when he declared himself a British subject they treated the plea with derision. The oath of allegiance was proffered to him again, and on his refusal he was dragged to prison. The friendless condition of this man and his ignorance of the proper means to be adopted, entitled him to a double amount of protection. Now, as to the condition of these persons, it was impossible to say more than this, that they were still in confinement. It was impossible to say whether there was a more or less of hardship in individual cases. But it was not likely that the Federal Government would treat British subjects confined in these prisons with more consideration than it would show to natives of the country. If the persons thus arrested were guilty, let them, after a fair trial, undergo the punishment the law awarded for their offence; but they should not be detained in prison for an indefinite period, and on secret charges. They ought to be brought to 105 trial, and have a hearing. He understood that to all these prisoners, without exception, the same offer was made, that as a preliminary condition to any judicial inquiry into their cases they should take the oath of allegiance to the United States. The fact of these men being still in prison after such an offer was a presumption that they were really British subjects; and, if so, under these circumstances the Government of this country was bound to extend protection to them. He did not wish to go further into this I subject; he would rather leave it in the hands of Her Majesty's Government. But he should wish to know from the noble Earl what information he had on the subject, and what steps he had thought light to take.
§ EARL RUSSELL:I conclude that the noble Earl has hardly read the papers that have been laid on the table of the House by command of Her Majesty; for the noble Earl would there have found a Correspondence between Lord Lyons and Mr. Seward, and also between Her Majesty's Government and Lord Lyons, on this subject. I think that the noble Earl in the statement he has made hardly seems to have taken into account the very critical circumstances in which the Government of the United States is placed. In the spring of last year nine of the States in the scheme of Confederation declared war against the Federal Government. In such circumstances as these it is usual for all Governments to imprison on suspicion persons who they consider are taking part in the war against them. In a case which happened not many years ago—in 1848—when there was a conspiracy in Ireland for the purpose of overturning the authority of Her Majesty's Government, the Secretary of State applied to the other House of Parliament for authority to arrest persons on suspicion of treasonable practices—that is, for the suspension of the Habeas Corpus Act—and in the papers presented to Parliament at that date there are two cases in which the Lord Lieutenant of Ireland ordered the arrest or two American citizens. In the cases of these two persons representations were made to Her Majesty's Government by the Government of the United States. My noble Friend Lord Palmerston, at that time Secretary of State for Foreign Affairs, replied, that with regard to those persons the Lord Lieutenant of Ireland had full information on which he relied that those 106 persons were engaged in practices tending to subvert the authority of the Crown, and were aiding treasonable practices that were being pursued in that part of the kingdom. Those persons, I believe, were never brought to trial—I never heard of their being tried. They were arrested and detained solely by the exercise of the powers vested in the Crown authorized by Parliament. No doubt complaints have been made by certain British subjects in America that they had been arrested on suspicion, only on the order and by the authority of the Secretary of State of the Federal Government. I directed Lord Lyons to represent these cases to Mr. Seward, and as, especially with regard to one of them, it appeared that there had been very light grounds for the suspicion, I thought an inquiry into them ought not to be delayed. I do not vindicate the act of the American Government in any of these cases; whether it had good or only light grounds for its suspicions, I am not here to say. If I thought they had only light grounds of suspicion, it was my business to represent that to the Government of the United States; but it is not my business to undertake the defence of the American Government in this House. The American Minister replied that the constitution of the United States gives the President a power, under certain circumstances, to arrest persons on suspicion and confine them in prison during his will and pleasure. This question has been much debated in America. Some high legal authorities say that the writ of Habeas Corpus cannot be suspended by the President alone, but only by an Act of Congress; but, on the other hand, some eminent lawyers have maintained the contrary opinion. I have received within the last few days a pamphlet written by a gentleman at the head of the bar of Philadelphia, in which he contends with great ingenuity that the meaning of the clause of the Constitution of the United States is that; the Habeas Corpus can be suspended on the authority of the President alone. Now, the question has been brought before Congress itself, and a resolution was proposed on the subject. But it was contended on the part of the Government that it was; the prerogative of the President, and on a division a large majority decided to lay the question aside, and thereby left the; President to act for himself. So much for the power given by the Constitution of the United States. With regard to the particular acts which Mr. Seward, under 107 the sanction of the President, has authorized, in the arrests of British subjects, as Well as American citizens, I am not here to defend them. But I think the authority to make such arrests is one that must belong to some person in the Government of the United States, if it believes that the parties are engaged in a treasonable conspiracy against it, either by furnishing arms to the enemy or acting as spies. It is an authority which must rest somewhere in cases of great peril. As to many of these cases, I believe there has been what was very likely to occur—some abuse of an extraordinary power; there have been some unnecessary suspicion and some ill-treatment. But I do not find that in any of these cases there has existed any disposition on the part of the American Government to prevent the British consuls from having access to prisoners who claimed their interference, or to prevent them from stating their complaints to Lord Lyons; nor do I find that Lord Lyons has been slow in representing them to the American Government. Lord Lyons has represented that attending to those cases has taken up a great part of his time. Nor can I say that Mr. Seward has refused to listen to those complaints. He has very often stated that he had information on which he could depend that these persons were engaged in treasonable correspondence against the Government of the United States. Whether these parties wore or were not engaged in treasonable practices against that Government is a question upon which we cannot enter. But the noble Earl states upon his own authority that the arrests were illegal, and that those persons are now kept in prison illegally. That is more certainly than I could venture to state. I could hardly venture to say that the President of the United States has not the power, supposing persons are guilty of being engaged in treasonable correspondence against the authority of the United States, to keep them in prison without bringing them to trial; and it would require a stronger denial of the authority of the law officers of the United States than I could presume upon to say that the President of the United States has not that power. With regard to the particular cases which the noble Earl has brought forward, I am unable to say whether or not some of those persons may not have been engaged in such correspondence. We all know that during the time in which the United States have been divided there has been much sympa- 108 thy shown in this country on one side and on the other. Some have shown a strong sympathy with the North, and others have shown a strong sympathy with the South. It is quite impossible for the Government to say, without knowing the circumstances accurately, whether these persons may not have been engaged with the Confederates. With regard to some of those cases, I thought the circumstances were such that it was quite evident that the persons arrested had not been engaged in any conspiracy. There was one gentleman who happened to be a partner in a firm, the other partner of which had great connections with the South, and had strong Southern sympathies; but the gentleman himself was a firm supporter of the Union. It was the mere circumstance of letters being sent to certain persons through the firm that induced his arrest. I thought that a most arbitrary and unjust proceeding. Mr. Seward said he thought the circumstances were enough to induce suspicion, but that as soon as it was ascertained that there was no ground for that suspicion, this gentleman was released. A mere release, however, was far from being adequate compensation to him, because for a person in a most respectable position and wholly innocent of offence to be arrested and confined to a prison for several days is a great grievance, and one for which he is entitled to compensation. But beyond the right to complain and the constant interference of Lord Lyons, the British Minister, whenever there is a case which he thinks calls for such interference, I do not know what, under the circumstances, we can do. I believe the gentleman to whom I allude had stated that he expected his own friends would procure his release. The noble Earl has mentioned three cases. I was not aware of the cases the noble Earl would mention; but with regard to Mr. Green, this is a statement he made on the 5th of September—
I desire no action to be taken by my friends in England in consequence of my arrest. Lord Lyons has represented my case, and it will receive full investigation in due time. Meanwhile I am in the hands of the officers of this fort.There have been other cases of arrest and imprisonment under circumstances involving great hardship. There have been many cases of arbitrary imprisonment, and these cases, of arbitrary imprisonment have taken place under a Government which is engaged in a civil war, perhaps one of the most serious, perhaps one of the most for- 109 midable, in which any country was ever engaged. It is not for us to decide the right or wrong of the quarrel; but we must admit that all the means that are used by civilized nations in warfare against each other are open to the Americans, whether in the character of belligerents or whether as engaged in civil war. With regard to the particular cases, I believe that, to whatever cause they may be owing— whether to the novelty of the circumstances in North America or to the inexperience of the persons intrusted with the duty of exercising this power, or whether it is owing to this, that arbitrary power can never be safely intrusted to any one, or if intrusted is most liable to be abused—to whatever cause it is owing, I believe there have been and will be many cases of arbitrary arrest. But in every case where a British subject is arrested, and a reasonable case is made out on his behalf, I shall always be ready to instruct Lord Lyons to bring the ease under the consideration of the authorities of the United States Government. Lord Lyons has never been wanting in his duty. He has, I think, shown himself a vigilant British Minister in that respect; and 1 hope your Lordships will not be of opinion that these cases have been neglected by the Government of this country.
§ THE EARL OF DERBY:I am sorry, my Lords, to find that the noble Earl is not able to answer the statement made by my noble Friend, and that he seemed to cast some censure upon my noble Friend for having brought this subject to your Lord ships' attention with a strong expression of opinion as to the illegality of these arrests. Now, I must say that it was difficult to listen to the statement of my noble Friend, borne out as it is by the statement of the noble Earl himself, without feeling excited to the highest degree of indignation at the gross outrages thus inflicted upon British subjects. I am willing to admit to the noble Earl that every allowance should be made for the circumstances of difficulty in which the American Government is placed, and the exigencies of the civil war in which they are engaged; but I must say that the course they have pursued with respect to British subjects in America, notwithstanding the remonstrances from time to time addressed to them by Lord Lyons—and f am sure that no thought was further from my noble Friend's mind than to cast the slightest censure upon Lord Lyons, who seems to have performed his difficult duties at Wash- 110 ington with firmness and with prudence—I say that the treatment of British subjects by the American Government has been such as highly to try the patience of this country. I think we are justified in using strong language upon the course thus pursued by the American Government, considering more especially that on some former occasions Her Majesty's present advisers have not been slack to assert or slow to vindicate the Civis Romanus doctrine professed by the noble Earl now at the head of the Government. In this instance, however, the Civis Romanus does not appear to have derived a great deal of benefit from his citizenship. The noble Earl seems to have derived some instruction from his intercourse with Mr. Seward; for in the course of his correspondence with Mr. Seward the noble Earl seems to have invoked against these proceedings—and very properly—the protection of American law, declaring that he had no right to resent, with regard to British subjects, that which the law sanctioned with reganl to American citizens; but the question was, did the law sanction these proceedings? The noble Earl, however, acquiesced contentedly when the American Secretary of State replied that he did not feel bound to accept from a British Minister his explanation of the American Constitution. Such was the substance of the courteous reply vouchsafed to the noble Earl. Now, I wish to ask a question, raised by my noble Friend, which the noble Earl very conveniently thought it unnecessary to answer. He states that Congress has passed a resolution affirming the course taken by the President in suspending the Habeas Corpus. [Earl RUSSELL: Virtually affirming it.] Well, virtually affirming it. No law can be shown to support the President's exercise of the power; and the noble Earl's statement is that a number of the most learned and able Judges in the States have denied that he possesses any such power. The action of the Judges at the present moment is subject to rather unusual restrictions. At present, therefore, there exists no appeal with respect to the law of the United States; but the noble Earl says that virtually Congress has affirmed that the President possesses by the Constitution, whenever he thinks fit, the power of suspending the Habeas Corpus writ, without reference to Congress or to any authority other than his own discretion. Certainly, for a very free Government and 111 pure democracy, I do not think that it is a very happy state of law to live under, and it does not seem to afford a very strong illustration of the superior happiness which the American people enjoy over those whose lot is cast under the old monarchies. The noble Earl has shown that in Ireland the writ of Habeas Corpus has been suspended by the authority of Parliament, and that the Lord Lieutenant has exercised the right thus conferred upon him, even in the ease of American citizens. But what I want to know is, can he show us any British or any American precedent where upon such an arrest it has been required as the condition, not of release, but of being brought to trial, that the person arrested should forswear allegiance to his own country? The noble Earl has not denied that this individual was called upon, as a condition of being brought to trial, to forfeit his nationality, and that he was only laughed at when he stated that he was a British subject; nor did the noble Earl deny that he was thereupon remitted to prison. Even admitting that we have no right to question the American interpretation of American law, admitting the doctrine that the President may at any time, under circumstances of suspicion, exercise the power of suspending the writ of Habeas Corpus without the sanction of Congress, I think the noble Earl will be at a loss to point out any law or precedent by which a person may be called upon to forfeit his nationality and swear allegiance to another country before he enjoys the privilege of being brought to trial.
§ EARL RUSSELL:What has fallen from the noble Earl renders necessary a word or two of explanation from me. With regard to the first point, I stated, so far as I recollect, that a motion had been brought before Congress declaring that under the existing circumstances the power of suspending the writ of Habeas Corpus could not be exercised without the sanction of Congress. I am not versed in the forms of Congress, but I believe that according to our forms it would be said that the Congress resolved to pass to the Order of the Day. That amounts to a virtual confirmation of the power, and I do not know that we can look to any other authority. The President exercises this power, and Congress declines to interfere. With regard to the three cases mentioned by the noble Earl (the Earl of Carnarvon) I did not, of course, know 112 that he would refer to them, or I would have taken pains to inquire into the facts of each case. I do not, however, recollect any instance in which a person was called upon to take the oath of allegiance to the United States, except one, and that was a case in which the person arrested had given notice of his intention to become a citizen of the United States, The form, I believe, is that the person who wishes to become a citizen of the United States must give three months' notice of his intention to do so. When that time arrives he must take an oath, not only of fidelity to the United States, but he must also forswear all other allegiance, and more especially allegiance to Her Majesty Queen Victoria. The gentleman who was arrested made an application to the British Consul; to whom the reply of Mr. Seward was, ''This gentleman on account of whom you write has renounced all allegiance, and especially allegiance to Queen Victoria." The matter was further inquired into, and it was found that Mr. Seward was wrong in his facts; that although this gentleman had given notice, and although he had stated in a court of justice he intended to forswear his allegiance to Queen Victoria, yet the requisite forms had not been completed, and, therefore, he remained still a British subject. Lord Lyons remarked that if that were not so the gentleman would be placed in such a position as to be debarred from seeking the protection either of the United States or of the British Government.
THE EARL OF DONOUGHMOREsaid, that without entering on a discussion of the general subject, he desired to have an explicit answer to one question, namely, whether the noble Earl at the head of Foreign Affairs approved of the course which had been adopted of tendering the oath of allegiance to a British subject as a condition to his being brought to trial? For his own part he could conceive that no greater insult could be offered to any man than to be first arrested by a foreign Government, and then be required by that Government to forswear allegiance to his own and allegiance to theirs before the charge against him could be investigated. He trusted that a distinct answer to that question would be given by the noble Earl.
§ EARL RUSSELL:My answer is that, as far as I know, the American Government have never tendered the oath of allegiance to the United States to a British subject, knowing him to be a British subject. Mr. Seward, when told by Lord 113 Lyons that this person who had been arrested was a British subject, said that he was quite unaware of that fact, and he would take care that the oath of allegiance was not put to him. I repeat, that I believe the oath of allegiance to the United States has never been administered to a British subject when he was known to be such.
§ THE EARL OF DERBY:My noble Friend's question referred to the alternative that was given of taking an oath of allegiance or of not being brought to trial.