CONSIDERATION OF COMMONS AMENDMENTS. (Hansard, 17 July 1874)

§ LORD STANLEY OF ALDERLEY
, in moving as an Amendment that the said Amendments be considered that day three months, said, the Bill had as yet received no discussion, for the noble Earl (the Earl of Carnarvon) never answered the objections which he made to its principle, and when it passed through Committee, he (Lord Stanley of Alderley) was too much disconcerted by the discussion which preceded that of this Bill, to make effectual opposition to the vague and dubious expression of "civilized Powers," which had now disappeared from the Bill. But, so far as the country was concerned, the Bill, in all its stages, had passed through a Secret Committee, for neither the country nor their Lordships knew anything of what 174 occurred with regard to it in the other House, beyond the fact recorded in the Minutes that the Solicitor General of the late Government put down a Notice for the rejection of the Bill. No notice whatever was taken of this Bill by the public papers during its passage through the other House, and there were many who hoped that it had been dropped. How had these Amendments come to pass? Three hypotheses were possible: either they were carried by a majority, which was improbable with the large majority the Government possessed; or the Secretary of State's Colleagues threw over the "civilized Powers" as untenable and indefensible; or, more probably, the noble Earl, after calm reflection, notwithstanding that he had appeared in Committee to be so enamoured of the term "civilized Powers," withdrew it himself. He must remind their Lordships that there was no similarity between the state of things attempted to be set up by the Bill and the extra-territorial jurisdiction which existed in Turkey and China, and other countries. There an immunity from local jurisdiction existed in favour of foreigners, because it had been freely granted by the Ottoman Emperors in the plenitude of their power, and in China and other countries it had been conceded after negotiation. Here, on the contrary, no immunity was sought for on behalf of our own subjects, but it was sought by an Act of Parliament to assume jurisdiction over foreigners for acts done by them in a foreign country, and this without the consent, or even the knowledge, of their own Sovereigns. He would ask their Lordships to consider what they would think if they were told that the United States' Congress had passed a law assuming jurisdiction over all offences committed in Nicaragua and Panama, on the grounds of the not very great efficiency of the Governments in those countries, and the number of United States' citizens that passed through them. There was not, however, much probability of such a Bill being passed in the United States, because there the Supreme Court exercised a supervision over the Acts of Congress, and would not permit such a Bill. There was an additional reason why their Lordships should not pass a Bill which legislated for another country without its knowledge or consent, and 175 that was the bad precedent which they would be setting, and which at this moment might be imitated. The project for discussion at the Brussels Conference was headed "Draft for a Convention," but in reality it was a Code of Law, and in the body of the document various clauses were referred to as "laws." Even should no harm come of this Conference, it might not be the last, and such Conferences might in future enact laws and claim to impose them upon small and weak States, and the attempt to do so might oven be made upon ourselves. He then asked their Lordships not to proceed any further with the Bill, because, in the words of a Petition which he had presented against it— It proposed to do what is inherently and in the nature of things impossible, since by the law of nature and of nations no Sovereign could have any legal authority out of his own territories. To pretend, therefore, to confer such authority is an usurpation and an act of violence, the more dangerous as it is clothed with an appearance of legality by being put into the shape of an Act of the Legislature. Now, a letter from the Singapore Chamber of Commerce to the Colonial Secretary of the Straits, dated September 17, 1872, said— It is respectfully submitted that the Straits Government, knowing, as it should, the history of the Salangore disturbances, is to a considerable extent responsible for the present unsettled state of that Kingdom in omitting to have Raja Mahdy arrested and tried for piracy when such arrest could have been made in Singapore.

THE EARL OF CARNARVON
submitted that the noble Lord was out of Order. The Salangore piracy was not now before the House, and he hoped that the noble Lord was not going to reopen that now.

§ LORD STANLEY OF ALDERLEY
said, his object was to induce their Lordships not to consider now the Amendments in the Bill, and therefore he submitted he was in Order in pointing out what would be the effects of the Bill. He was prepared to deny that Raja Mahdy had been guilty of anything that could be called piracy in a Court of Law, and that had he been tried for piracy', even if lawfully arrested, great injustice would have been done him. But for the purposes of his present argument that was a matter of perfect indifference, and for argument's sake, he would concede that he or others 176 had been, or might be, guilty of piracy. Well, if the local government acted on the instigation of such letters as that of the Chamber of Commerce, and should unlawfully and arbitrarily try a foreigner for an offence committed out of British territory, that would be a far loss evil, and one that would not taint the nation in the same way as would happen if the Legislature itself committed that act of usurpation. No injustice of a Governor, nor even of Ministers, could be compared to an injustice committed by the highest Court in the land, the most High Court of Parliament, or to such a disorder as an infraction of right placed upon the Statute Book by this august Assembly, which was the guardian of law and order. Perhaps the noble Earl (the Earl of Carnarvon) would reply that, without this Act, the Straits authorities might be prosecuted for illegal arrest and trial of accused persons. He answered to that, that there were precedents which showed that an Act of Parliament which was null and void because it over-rode the Law of Nations, would be no protection. Mr. Justice Hotham observed that even an Act of Parliament made against natural equity was void in itself, for the laws of nature were immutable, and leges legum—that was, they were laws that govern the law; an expression equivalent to saying—" The Constitution is a law to the Legislature which it must not disobey." In the case of "Regina v. Serva and others" (1Denison's Crown Cases, 104), which came on before the 15 Judges in Serjeant's Inn Hall on the 3rd of December, 1845, it was there held that it was unlawful for a British cruiser upon the high seas to capture and make prisoners of foreigners merely by virtue of the authority conferred by an Act of Parliament, but without any treaty between their State and this country to warrant it; that if such foreigners, whilst in that unlawful custody, afterwards rose upon and slew their captors, they were dispunishable for the same in any of the Queen's Courts of Justice. All the Judges assented to this doctrine except Lord Denman and Baron Platt. Lord Coke, Lord Hale, and Lord Hobart had laid it down that whenever Acts of Parliament contrary to natural right should pass, the Courts of Justice would refuse to give effect to such Acts of Parliament, and would hold them to be not laws but abuses. In 1816 the 177 condemnation of a French vessel in the Vice-Admiralty Court of Sierra Leone was reversed by Lord Stowell, because slave trade was not piracy, and the Law of Nations could suffer the public servants of no State to punish the delinquencies of the subjects of another. Lord Stowell's judgment in this case concluded with these words— To press forward to a great principle, by breaking through every other great principle that stands in the way of its establishment; to force the way to the liberation of the Negro by trampling on the independence of other States; in short, to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice. A nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose. But was it certain that the object of this Bill, apart from its lawlessness, was a laudable one? Was it certain that it would not give rise to tyranny and wrong? If it should pass, was it certain that the Bindahara of Perak, now on his way as a guest to Singapore, might not be imprisoned and tried in consequence of clamour, such as that which called for the trial of Baja Mahdy? A few nights ago he heard a speech, with which he most cordially agreed, from the noble and learned Lord (Lord Selborne), on the necessity of providing legal education, and on the advantages of it for those who might later be called upon to make laws. He regretted that the opportunities proposed by the noble and learned Lord did not exist, so that he might have remedied his ignorance of English law; and he ventured to think that if the noble Earl (the Earl of Carnarvon) had heard any lectures on the Law of Nations, or had read even the Prologue of the Treatise on Law, by Suarez, that he would never have consented to introduce this Bill. After that, the noble Lord on the Woolsack delivered a magnificent and well-deserved panegyric on the dignity of the legal profession, and of law and its services to society. For law was only the divinely ordained order of things, and laws were the expression and rendering of that order in words. This was what had been said by all writers on the subject since the time of Cicero, and if their Lordships' should pass this Bill, which was diametrically opposed to natural law and to the Law of Nations, they would introduce disorder into order, and poison the 178 wells of law. There was a new school of lawyers who could not bear that any crime or offence should go unpunished, and for this purpose they were ready, in this case, to sacrifice the Law of Nations, and in other cases nearer home, to alter our most ancient and most English institution, the number and unanimity of the jury. As they valued little the old English maxim that it was better that several guilty men should escape rather than run the risk of condemning one innocent man, so in like manner they would prefer to place a blot upon the Statute Book rather than see a few foreign Asiatics, for whose offences we were not responsible, escape chastisement. Leaving the Law of Nations, he desired to ask their attention to other considerations. The public here, and also in the Straits, had got the idea that this Bill was part of, and connected with, the engagements recently made in Perak and Salangore. Though this was not the ease, it would be impossible to persuade them otherwise; and it would be still more difficult to convince the public and the Sovereigns of India, Burma, Siam, and China that that was not the case; and when all the other objections to the Bill were taken into consideration, it could hardly be thought worth while to pass it at the risk of creating alarm and disquietude, and interposing fresh obstacles to the advance of trade in all those countries.

EARL NELSON
rose to Order. He submitted that the noble Lord was not justified in attacking the principle of a Bill when their Lordships were considering the Report of Amendments made by the House of Commons.

§ LORD STANLEY OF ALDERLEY
hoped their Lordships would hear the few remarks he had to make in conclusion. The principle of the Bill had received no discussion. The Bill was not a Government Bill. The noble Earl (the Earl of Carnarvon) told the House on a former occasion that it had been drawn up by the Straits Attorney General. Half the Bill, or half the offenders intended to be brought under its effects, had been lost by the Commons' Amendments limiting it to Natives of the Malay Peninsula, excluding the Chinese; and he put it to Her Majesty's Government whether, after that, it was worth while to pass the Bill? He was, therefore, justified in making the observations he had made, and in the Motion which 179 he would now submit for their Lordships' approval.

THE EARL OF CARNARVON
said, that ail the Amendments of the Commons did was to define more accurately the class of subjects to be brought within the Bill.