HC Deb 18 March 1818 vol 37 cc1164-77
Dr. Phillimore

observed, that in rising, pursuant to notice, upon the present occasion, he did not apprehend it would be necessary for him to trespass at much length upon the time or the patience of the House, as the subject was confined within narrow limits. By a treaty that had been recently concluded, the sum of 400,000l. was to be paid by the British government to Spain, as a compensation for the losses that the latter power might sustain by consenting to the Abolition of the Slave Trade. By a petition that had formerly been presented to the House from Mr. Page, a person describing himself as agent for the merchants residing at the Havannah, concerned in the Slave trade, it appeared, that the Spanish property employed in the slave trade might be divided into three classes: first, those cases of vessels condemned in the colonial courts, where the appeal was interposed too late; 2dly, the cases of appeals in progress; and, lastly, those cases where the decrees of the courts of this country had ordered restitution to the full value of the property. With the two first classes, his motion had nothing to do. It exclusively referred to the case of those claimants who were in possession of sentences of restitution from British courts in this country. It might be said, and he did not moan to controvert the position, that the king of Spain possessed the power of contracting for his subjects in arrangements with foreign states. It was not his intention to enter on that view of the question. It was much more material with him to uphold and preserve inviolate the ancient and pre-eminent character of the courts in which the laws of nations were administered in this country. The parties who had sought for restitution of their property, had appealed to the British courts, in the fullest reliance on their acknowledged character for undeviating good faith and justice. And, in referring to the cases where the sentence of restitution had been made, he found that restitution was ordered in two instances, as far back as January, 1817; another in May of the same year, and the fourth in December last; while the treaty with Spain was not ratified until the end of that month. Yet by that treaty, a decree of the law of nations, putting these parties in possession of their property, or the value of their property, was rendered, to all useful purposes in this country, but as so much waste paper. It was unnecessary for him to trespass on the attention of that House with any panegyric on the character of those courts. Happily for the times in which we lived, their decisions did not rest on abstract or speculative notions; they had attained to a certainty equal to those of the municipal courts. It must therefore be a source of regret to see their decrees reduced by any transaction to a perfect nullity. Before the execution of the recent treaty, no merchant in England would have refused the most liberal advances to these claimants on the security of those sentences of restitution. At present they were wholly valueless. But the case of these claimants stood on stronger grounds than the mere sentence of restitution. They were protected by an act of parliament, the 55th of the present reign, by which, not only a restitution in value was enacted, but it was ordered that payment should be made on the production of the sentences by the treasurer of the navy. Applications had been made by these claimants to the courts, in order to accelerate the payment, and the answer was, that a treaty was pending. Of the treasurer of the navy, the value of the property had been demanded, but the claim was, from time to time evaded; although, under the provisions of the very act of parliament, a sum of 48,000l. was paying to French claimants, similarly situated. He could not but consider it due to the character of the tribunals in this country, in which the law of nations was administered, that government should specially provide for those, who held sentences of restitution under their order, and that it should not go forth to the world, that they were vilified and of no effect. It was endeavoured, by those who looked at our maritime character with jealousy, to attach a political character to those tribunals. To that aspersion their pre-eminent character was the best refutation, and therefore it was that he regretted any event that had a tendency to impair the value of their decisions. Why should not these claimants be indemnified? There remained one point on which, from what he had heard since he entered the House, he was anxious to be fully understood. No man more sincerely wished for the total abolition of the slave trade; no man was more sensible of the embarrassments this country had to contend with, in achieving that important concession, by which the tract of the African continent, to the northward of the equinoctial line, was at length placed within the pale of civilized society, and relieved from the predatory attacks of the Spanish slave-dealer, and all others, who had so long carried on their detestable pursuit, under the cover of that flag. The question he had the honour to submit, stood wholly independent of the slave trade.—The hon. and learned gentleman concluded with moving, "That an humble Address be presented to his Royal Highness the Prince Regent, to represent to his Royal Highness, that it appears to this House, that several Spanish subjects have obtained sentences of restitution of vessels engaged in the African slave trade, which had been detained by his majesty's cruizers, and brought to adjudication in the courts of admiralty of this country, but have not yet been put into possession of the same: and that they commenced and prosecuted their suits at considerable expense, under the implicit confidence which they have reposed in the justice and integrity of the British tribunals, and upon the faith of an act passed in the 55th year of his majesty's reign, intituled, 'An Act to provide for the support of captured Slaves during the period 'of adjudication.'—That, being deeply interested in upholding and maintaining inviolate the decisions of the tribunals of this country, most earnestly do entreat his Royal Highness, that he will be graciously pleased to take effectual measures to provide that the Spanish subjects, who are actually in possession of sentences of restitution, may receive the full amount of the property decreed to be restored to them."

Lord Castlereagh

said, that he fully agreed with some of the general observations of the hon. and learned gentleman. His exposition, so far as it went, was perfectly fair and clear. He had no doubt, but he should be able to present the subject in such a light, as would give satisfaction to the House, and to the hon. and learned gentleman himself; and to prove to him, that circumstances were such as to free the arrangements with Spain from all impeachment. He would first make a few observations as to the general grounds of the right upon which the arrangement was entered into. There could be no doubt, that it was perfectly competent to one sovereign to contract with another as to the claims of their subjects, with a view to adjustment. The claims of individual subjects would otherwise lead to general confusion and perpetual warfare. It was the duty of a sovereign to obtain justice for his subjects from foreign powers; but the Crown was alone competent to judge how far it had a right to prosecute that end by warfare or stipulation. If any other principle were admitted, all claims of subjects might become individually an object of negotiation which could never be brought to a close. On the common reason of the thing, therefore, it was clear, that the power of negotiating upon, and adjusting the claims of subjects, should remain with the sovereign. All writers upon the law of nations were agreed as to that point. It could be proved, by two practical cases exactly in point, which had obtained the sanction of parliament. One was, the treaty negotiated at Vienna in the year 1815. By that treaty, 300,000l. was stipulated to be paid to the king of Portugal, in compensation for the same description of injury as that to which the motion referred. Some of the cases respecting Portuguese vessels captured by British cruisers, were then actually in progress before the courts. He did not know whether any had been completely decided. In like manner, by the treaty with America in 1783, the subjects of this realm were to bring their complaints for unjustifiable capture of ships, before the American tribunals. In some cases they obtained justice, but in others it was denied. For that reason the sovereign entered into a stipulation for the adjustment of those claims; and the American government itself undertook to indemnify the claimants in cases where justice could not be obtained before the tribunals. There were two modifications entered into on the subject. The first established the right of going with claims, not to courts of justice, but before commissioners, who were to examine them, and to order payment. The proceedings before the commissioners not having given satisfaction, a second modification was entered into, which compounded the whole claims for 600,000l. This composition was received by the Crown, although the claims, if prosecuted, would amount to five or six millions. Whereas here, the sum given to the Spanish king was not only ample enough for all the claims of his subjects, but it was considerably beyond their amount. The precedent of America, followed by the treaty of 1815, and the common sense and laws of nations, thus established the right and power of one sovereign to compound with another for the interests of his subjects.—There was a general observation made by the hon. and learned gentleman to which every man was alive; namely, that it was of the utmost importance to the national honour to support the national tribunals; but the hon. and learned member had neglected to remark the natural distinction between tribunals for internal cases of jus- tice, and those for the laws of nations. Whenever a treaty was agreed upon between two nations, from that moment it formed a part of the law of nations. If, then, the proposition he had stated, that it was in the power of a sovereign to enter into treaty respecting the claims of subjects was correct, it was no more an impeachment upon the treaty in question to have recognized a composition, than it was upon this country to have entered into the composition with America. The judgments referred to by the hon. and earned gentleman, were not judgments affecting the revenue of the country, through the treasurer of the navy, but the captors of the vessels in question. In proof of this, he would remind the hon. and learned gentleman, that his clients would have sold those judgments at such a discount as to take a few shillings in the pound before the treaty had been known, and that he had presented a petition for his Spanish clients, praying for a public compensation, the same as had been given in the case of Portugal, because there was so much litigation and difficulty in the way of getting satisfaction from the captors. Was it not hard, then, after not only the same measure of justice, but a greater had been meted out to them, that complaints should new be urged on that ground? But to argue more closely with the hon. and learned gentleman. He had represented the great hardship and injustice of stepping in between individuals and the tribunals which had given judgment in their favour. This he wished to be kept particularly in view by the House, for he could show them that the claimants were deprived of no right they had had either in equity or by statute. There were two views to be taken of the question. First, what was the principle on which any claim in equity could be founded; and, second, what the claimants were entitled to on that principle. With respect to the first view, they were entitled to nothing in equity. The statute of July, 1815, was passed for purposes of humanity, that slaves found in captured vessels might be immediately relieved from their unhappy situation, and not obliged to wail the issue of a long litigation. With this view it was enacted, that if the capture should afterwards be declared illegal, an equivalent should be given for the slaves by the treasurer of the navy. As this act could only operate prospectively, not one case of those in question could be in any view, brought within its operation. All of them but one were distinct from the whole proceedings contemplated by the statute. The hon. and learned gentleman had been guilty of a fallacy, if not of misrepresentation, respecting the cases in question. There were altogether twenty-one cases in different stages. In sixteen of those cases the captures had taken place before July, 1815. The act of parliament of that date could by possibility, therefore, apply only to five of them. The sixteen cases had no reference whatever to the act, and could claim no remedy whatever, except from the clemency of parliament, if parliament chose to extend it to them; four cases out of the other five were still in course of litigation, and no judgment whatever had been given upon them. Only one case, then, could be attempted to be included in the provisions of the act, and this case he should show to be on grounds very different from those contemplated by the act. It was the case of the Rosa. It had not been captured by our cruisers, but had been driven by stress of weather on the coast of one of the Bahama islands, and had been taken because some slaves were on board. Upon the hon. and learned gentleman's own showing, therefore, no claim could be urged against the treasurer of the navy. There were only five judgments, and those were against the captors; and surely the claimants, as to the remedy now afforded to them, compared with their prospect of recovering from the captors, had no right to complain of this country for turning them over to the justice of their own country. He had thus shown that the claimants had no right against the state, but against the captors; and that their claims against them could not stand in the way of entering into treaty, otherwise they would stand in the way of all treaties, Looking at the treaty with Spain, he would say, that the claimants by go in to their king with judgments obtained in this country, would have an additional claim for justice, and an impediment against injustice. But if individual cases had been specially stipulated for in the treaty, it would be incumbered with much obscurity. Nothing could be more unwise than to include all cases in progress in the courts in a treaty. There was nothing so dangerous as introducing unnecessary words into a treaty. By this treaty the king of Spain had taken upon himself to make satisfaction for all losses sustained by his subjects. If, then the judgments were not, as they were, against the captors, but against the public, it would be difficult to prove that we were bound to make twofold restitution. He would not prejudice any man; but if Americans and others, who, under the disguise of Spaniards, had trafficked in slaves, had applied to our courts, and mananaged their disguise so well as to have obtained judgments, was it not the wisest and the most just course to refer them to the country to which they affected to belong? He believed there were such claimants, and Spain had better means of detecting them, and of separating the real Spanish claimants from the illicit traders who had carried on depredations under its flag. It was thus an essential ingredient of justice, to refer them to the country to which they said they belonged. It was impossible to get at the truth in any other country. Upon the whole, he trusted that he had satisfied the House, that no doubt had hitherto existed with regard to the competence of the sovereign power of a state, upon all the principles of international law, to conclude a treaty with another foreign power, of the nature of that under consideration. He had shown that it had been recognized on two solemn occasions, and that there was no ground of charge against the Navy board, as having placed itself between a judgment on a statute law, and its execution. He had only to remind them, that the Spanish flag had been made use of by the subjects of other states as a cloak to their violation of the law, and that the Spanish courts must necessarily be the fittest places for determining any questions which might arise out of that practice. Hoping, therefore, that he had relieved the hon. and learned gentleman's mind from all apprehension with respect to the authority of our own tribunals, he should conclude by expressing his intention to oppose the motion for an address as unnecessary.

Lord Archibald Hamilton

said, that he addressed the House with reluctance on this subject, but he considered that, by the noble lord's own admission, injustice had been done somehow and somewhere. He was sorry that a claim in equity should be connected with any thing so atrocious as the slave trade; but he nevertheless thought the honour and justice of the country implicated in this question. The noble lord was rather unhappy in his allusion to the American treaty, for that was ‡ a precedent which was never admitted either for its principle or its justice. If he did not mistake, lord Sidmouth had, on a public occasion, expressed a very strong opinion against the treaty, on which so much stress had been laid. The claimants were to be now told they might go to Spain and seek redress, but the correspondence they had with the noble lord left them little to expect in such a quarter. Was it fair, he would ask, after the parties had, at a considerable expense, pursued the judicial course laid down for them by the law, and obtained judgments—was it fair to turn round on them and transfer them to another country for that redress which they were entitled to receive here? Suppose the courts of Spain refused the parties satisfaction, would not England be bound to afford it, notwithstanding this pecuniary grant to the king of Spain?

Lord Castlereagh

explained, that the treaty gave to the king of Spain a full remuneration for the claims of his subjects, and to the latter a whole and entire remedy in their own tribunals. The distinction taken in his correspondence was between the claimants who had entered their appeals in time, and those who had not.

Mr. Wynn

said, he would not dispute the abstract proposition, that a sovereign had a right to adjust with another potentate the claims of any of his subjects; this power, he admitted, was vested, and necessarily so, in the head of any state, whether republican or monarchical. He also admitted, with the noble lord, that the question here was, whether the power so vested had been properly applied in the particular case. The claims not duly appealed were, of course, out of the consideration; but when the legislature, by a special act, prescribed the mode of pursuing a legal inquiry to correct a wrong, and where the sufferers had followed the course laid down and obtained an adjudication, after making out their demands to the satisfaction of the court—then both equity and justice required that they should be protected in the rights they had acquired. The case of America was not exactly in point. It was known that in America, at the period when the treaty was made, from the fermentation which prevailed after a protracted war, the courts of justice were not then to British subjects the seats of equity, in many cases; therefore, any international arrangements to cover individual claims made at such a time, could not be very well adduced at the present moment to govern the proceedings of a British statesman. The hon- gentleman expressed his warm indignation at the horrible traffic in slaves; but he thought that the interests of the claimants should, in the present instance, be protected by the courts in which the proceedings relating to them had been instituted, and not transferred to another jurisdiction, where the parties must incur fresh expense, and additional delay, after their cases had already been decided before competent tribunals.

Mr. Brougham

was of opinion, that if the consent of the court of Spain to abolish the trade were the only result of the payment of 400,000l. it would be sufficient; but he considered that the additional arrangement relative to the right of search —without which the abolition of the trade would be impossible—was of itself worth the whole sum. It was also to be recollected that the Spanish government received this money, partly in consideration of their making good the losses sustained by their subjects by captures; to which indeed one-half of it would probably be applicable. The hon. and learned gentleman argued, that the act of our government was not the cause of any injustice that might he apprehended; for if no treaty had been concluded, it would have been competent to the Spanish government to bar the claims of the parties in question by an act of state. It was certainly a case of great hardship on the parties who had brought actions and obtained judgments, and on the credit of those judgments had perhaps obtained advances; but there were many other cases of hardship arising out of the established principle, that subjects were bound by the acts of their sovereign. Up to the final adjudication, the whole claim of a captor might be abandoned for him by his government; saddling him with all the costs of his action. He thought, however, that it would have been much better had resort been had in the instances in question to the droits of Admiralty. In conclusion, the hon. and learned gentleman expressed his earnest and anxious hope, and indeed his sanguine expectation, that by the stipulations which had been entered into between some of the governments of Europe (which he trusted would be speedily extended) and more especially by the admission of the right of search, the great measure of the total abolition of the slave trade, would ere long be completely accomplished.

Lord Castlereagh

, in reference to what had just fallen from the hon. and learned gentleman, was persuaded it would be satisfactory to him and to the House to be informed, that the government of the Netherlands had signified their readiness to assent to the principles of the treaties with Spain and Portugal, and that a treaty to that effect was in a state of great forwardness.

Mr. Wilberforce

thought the distinction on which the motion of the hon. and learned member rested, was one which could not be made as easily as he imagined. He would not conceal from the House, that when he first heard the question agitated, he thought the letter of the act should be strictly attended to. But when he came to consider the subject more closely, he could find no difference between the cases where awards had been made and those which were in progress. It had been well observed, that more were concerned in the question than the governments of England and Spain. Much had been said about the losses likely to be sustained by Spanish claimants, if the awards of the Admiralty court were not enforced; but it was well known that such was the system of fraud carried on by persons of other nations, that the Spanish flag was used as a protection for carrying on that odious trade in slaves which could not otherwise be continued by them. On that account it was, that the several claimants were so desirous of applying to England for redress under the Spanish flag, which they knew it would be useless to seek for in Spain—as such fraud would there be easily detected. But it would not be right to allow strangers to take advantage of an act passed in this country from the most generous feeling, particularly when such advantage was taken for the protection of a traffic which the whole nation had set their faces against, and which was so revolting to human nature. What had been the consequence of that trading in slaves which was carried on by those ships, the capture of which was now a subject of litigation? When the French had been driven from their settlements on or near the coast of Senegal, the poor inhabitants found some safety from their former persecutions. Instead of taking refuge in their woods and hiding places, as they were previously obliged to do, to avoid being entrapped and dragged into slavery, they descended into the open country, and employed themselves in cultivating the land and such other civilised labours as conduced much to their happiness. Up the river Senegal there were to be seen numerous plantations of the produce of that country. The innocent inhabitants felt happy in being allowed the undisturbed possession of their liberty and the cultivation of those articles which were necessary to them. That state of things continued until the trading in slaves was recommenced under the Spanish flag, and by the French. The consequence of which was, that that part of the coast of Africa to which he alluded, was reduced to one scene of ruin and desolation. The noble lord opposite, with a promptitude which did honour to his feelings, made representations to the French government on the subject, and to their credit, they showed every wish to prevent a trading in slavery as much as possible. Now Spain had also consented to desist from the slave trade, and it was to be hoped, that in a short time the poor Africans would be again induced to quit their woods and their fastnesses, and resort once more to those peaceful and industrious habits which would tend so much to the amelioration of their sufferings and to their civilization. Spain promised fairly to abolish entirely the traffic in slaves, and they had in what was already done by that country a strong guarantee for the performance of the rest. He hoped, also, that America, who ought to be the friend of freedom, would not sanction this inhuman trade. With respect to the motion before the House, it rested on a distinction which it was very difficult, if not impossible, to make. If the principle of remuneration, which it would establish, were once allowed, there would be no end to cases of that nature; besides, it would be holding out an inducement to the continuance of a trade which it was the wish, not only of England but of a great part of Europe, to abolish altogether, a trade equally detestable in the sight of God and man.

Mr. Money

said, he considered the 400,000l. given to Spain under this treaty expended for one of the most just and noble purposes. It reflected the highest honour on the country; and he believed, that if for such a purpose the people were called on for their contributions, the penny of the poor would be cheerfully blended with the pound of the rich.

Dr. Phillimore

, in reply, observed, that his arguments must certainly have been misunderstood. He would appeal to the House, whether he had not distinctly separated the question from the abolition of the slave trade, and whether he had not distinctly and fully expressed his abhorrence of that trade? The question on which he went was, whether those claimants who were in possession of a verdict of a British court of justice in their favour, ought not to be indemnified for their losses in the first instance, and the subsequent heavy expenses incurred in the prosecution of their claims, and whether there was not a difference between the cases of such persons, and those whose claims were in progress? He did not deny the right of the sovereign to bind the subject by any treaty entered in o with a foreign power; but he thought the honour of the country ought to be maintained; that the purity and integrity of British courts of justice, which were hitherto in such high estimation, ought not to be lessened in the minds of other nations, but which would be the case if the persons whose cause he advocated were to be deprived of redress. He admitted that three out of the four cases he had mentioned, did not come within the act. The fourth did. The noble lord had stated that it was the captor and not the public who would be liable if no treaty had been entered into. He would appeal to the House, whether it would be fair to have the captor of a slave ship, the man who had been instrumental to the rescuing of a number of poor creatures from slavery, that such a person should be ruined in his fortune by being obliged to pay all the damages attendant on the restoration of his prize? In such cases the public should undoubtedly pay for what had been in accordance with public feeling. Besides, there were many cases which occurred before the treaty was entered into, before it was thought of, and which did not come within the grant of the 400,000l. He did not mean to find fault with the sum: but he would observe, that it was the duty of ministers to have provided for those cases of hardship which occured previously to such treaty being agreed to. What was the result of the treaty? The decisions of the British courts, to which those cases had been referred, were left at the mercy of the Spanish government, than which no government in Europe ranked lower in point of credit. It had been said by an hon. member, that much of fraud had been carried on by some of the claimants, which was the reason why they were so anxious to apply to England rather than to Spain, as in the latter country there was a greater chance of detection than in this. To that, he would observe, that he did not know personally the gentlemen whose cause he advocated, but from what he had heard of them, he had no reason whatever to doubt their respectability, or the validity of their claims. If there was any fraud it would have appeared in court on the trials; but no such thing did appear; on the contrary, the strongest proof of the justice of those claims was, the decision which had been made upon them by the able and learned judge who presided on the different occasions. All charges of fraud, therefore, came at too late a period to have any effect. The precedent of what took place in 1783 was mentioned as a case in point with the present, but it had been fairly shown by his hon. friend (Mr. Wynn) that there was no agreement whatever between them. He had not heard any thing from the other side of the House which made against his motion, or from which he was not the more convinced of the necessity of its being carried. It was the duty of the House, to maintain and up hold inviolate the tribunals of justice, and to be cautious of interfering with them in any way. On these grounds, he contended, that his motion ought to be acceded to.

Mr. Wilberforce

observed, that it was a singular fact, that until it was found the Spanish flag could cover the illicit traffic, no vessels of that nation had been busily engaged in the trade. It was, therefore, clear to him, that the real traders were not Spanish subjects, or persons having any claim for remuneration in the courts of Spain. This accounted for the anxiety of such parties to urge a settlement here.

The motion was negatived without a division.