§ On the Motion of the Chancellor of the Exchequer, that the House resolve itself into a Commitee of Supply;—
§ Sir Robert Peel
said, I rise, in pursuance of the notice which I have given, to make some observations on a subject of the highest interest to the commerce of this and other countries, and involving some considerations of great constitutional 771 importance. It was my intention to avail myself of the opportunity of going into the Committee of Supply on Wednesday—to call the attention of the House to this subject; but, in consequence of the absence of the noble Lord, the Secretary for Foreign Affairs, and of the hon. and learned Civilian, the member for the Tower Hamlets, and of the hon. and learned Attorney General (for which, however, I do not attach to them the slightest blame, as I had not given them any notice of my intention), I was induced to postpone my observations until the present occasion. The subject to which I refer is the Order in Council, issued by his Majesty in Council, and bearing date the 6th of last November, which prohibits British ships from entering and clearing out for any of the ports within the dominions of the king of the Netherlands, until further orders; which imposes a general embargo on all ships belonging to subjects of the king of the Netherlands in British ports; and which author-rizes the seizure, by the commanders of his Majesty's ships of war, of all merchant vessels bearing the flag of the Netherlands, in the open seas. In the debate which took place on the Address, in answer to the Speech from the Throne, I stated that I entertained considerable doubts whether the power which that Order assumed was constitutionally exercised. I felt, however, upon that occasion, that did not become me, who had no other means of forming an opinion with regard to the law of nations, than those possessed by any other individual in this House, not practically or professionally conversant with those laws, to express a decided opinion on the subject. If I had received from the hon. and learned Gentleman (Dr. Lushington) who replied to me on that occasion, and who justified the Order in Council, any satisfactory solution of my doubts, I should readily have deferred to the high authority of his station, abilities, and professional experience. But when such authority is wholly unsustained by argument, it confers no support on the cause of which it is the advocate. It rather leads to the presumption that all has been said that can be said, and that that all, being insufficient, the cause is intrinsically bad.
The Order in Council to which I refer completely prohibits all commercial intercourse between his Majesty's subjects and 772 any of the ports within the dominions of the king of Holland; it authorizes the detention of Dutch vessels, being found within our ports and harbours; and proceeding much further than Orders in Council have generally gone, is not limited to a simple embargo, but authorizes the forcible seizure on the open seas, by his Majesty's ships of war, of all merchant vessels bearing the flag of the Netherlands—and the sequestration of their cargo. This Order in Council assigns no reason whatever for so violent a proceeding; it merely states, that it is by order of his Majesty, with the advice of his Privy Council, that restrictions are imposed on our commerce with Holland, and vessels belonging to a nation at peace with this country are to be forcibly detained. This Order is simply signed, "Charles Greville." This appears a very summary mode of dispensing with the statute law of this realm. That it is an exercise of prerogative, suspending acknowledged statute law, no man can deny;—that it is an exercise of prerogative, admitting of gross perversion and abuse, is equally unquestionable. I do not assert—for I have no means of proving, nor have I heard it alleged—that there has been in this individual case, actual partiality or abuse—but the unusual exercise of any prerogative which affords the opportunities of undue favour, and of perversion to party purposes, justifies extreme vigilance and rigid scrutiny. The first Order in Council was followed by another Order, empowering certain departments of the Government to dispense with the rigour of the first in individual cases, according to their discretion—that is to say, there is a general suspension, at the will of the Crown, of one branch of the lawful commerce of the country; and authority given to certain officers of the Crown to permit that commerce in individual cases. Could a corrupt Government wish for greater facilities of favouritism and abuse?
My first proposition is one which it is hardly necessary to prove, but which, that I may not be charged with assuming anything, I will prove—namely, that the rights suspended by this Order in Council, are rights possessed both by British subjects and by foreign merchants, under the positive sanction and guarantee of the statute law. Whether there be a prerogative inherent in the Crown to suspend 773 those rights under certain circumstances, and whether such circumstances have in this case occurred, are other questions; but that the rights suspended are unquestionable legal rights, admits of no doubt. I will show, by repeated statute laws, that merchant-strangers, belonging to a country in amity with this, have as clear a right to free intercourse with the shores of this country as the native subjects of the King. This right has been conferred by the earliest statutes, and has frequently been confirmed. I take the first—Magna Charta—in which it is declared—
'That all merchant-strangers (except such as be so publicly prohibited), shall have safe and sure conduct to depart out of England, to come into England, to tarry here, to go in and through England, as well by land as by water, to buy and to sell without any manner of evil toils, by the old and rightful customs, excepting in the time of war.'
It then goes on—
'And if there shall be a land making war against us, and they be found in our realm at the beginning of the war, they shall be attached, without harm of body or goods, until it be known to us or our Chief Justice, how our merchants therein the land at war with us shall be entreated; and if our merchants be well entreated there, theirs shall be well entreated with us.'
Now, I will take these clear provisions of the law; and I ask whether the Order in Council that was issued in November last is consistent with either their spirit or their letter? I say that merchant-traders by this statute have a right to carry on, in time of peace, a free commercial intercourse with this country; and I am sure that a Reformed House of Commons will not reject the authority of this law as obsolete, because it is Magna Charta. The expression is nisi publicè prohibiti,—that is, that they have a right to trade unless they are forbidden by previous and public warning to the contrary. Lord Coke gives it as his opinion, in allusion to the words publicè prohibiti, that the prohibition intended by this Act must be by the common and public council of the realm—that is, by Act of Parliament; for that it concerneth the whole realm, and is implied by this word (publicè). Lord Coke may perhaps carry this too far in requiring a statutable prohibition; but the abstract which I have read from 774 Magna Charta proves, that foreign merchants have a right to trade with us while this country remains at peace with their native lands. In the present instance we are at peace with Holland, and yet we have seized on and sequestrated the property of her subjects, without notice, without public prohibition, without waiting to see whether our merchants be well entreated there—nay, we have waited, we find our merchants well entreated in Holland, but we continue the maltreatment of the Dutch traders. The provisions of the Magna Charta are thus emphatically confirmed by the 27th Edward 3rd, c. 2, in which it is provided that—
'To replenish our said realm and lands with money and plate, gold and silver, and merchandises of the lands, and to give courage to merchant-strangers, to come with their wares and merchandises into the realm and land aforesaid, we have ordained and established that all merchant-strangers, which be not of our enmity, of what land or nation that they be, may safely and surely, under our protection and safe conduct, come and dwell in our said realm and lands where they will, and from thence return with their ships, wares, and all manner of merchandises, and freely sell their merchandises at the staple, and elsewhere within the same realm and lands, to any that will buy them, paying the customs thereof due.'
Now, I will not say that the Crown has not the prerogative to dispense with the law on this point; but I will repeat, that it is manifest that, by the statute law of the land, merchant-strangers, of a country in amity with us have a right to free commercial inter-course with us; and that, if his Majesty's Government issue an Order in Council, prohibiting that intercourse, they dispense with the statute law of the land. Those statutes are in full force at the present moment; and it is impossible to refer to them without admiring the liberal principles by which our ancestors were actuated in their regulations respecting foreign commerce. All those who are the friends of free trade may refer with peculiar satisfaction to those statutes which long preceded the Navigation Act, and all other Acts of a prohibitory nature. Those statutes are founded on the principle that the prosperity of English commerce is interwoven with the prosperity of foreign commerce, and that regulations 775 favourable to the commerce of other countries would prove favourable to the commerce of our own.
So much for the express law on this subject. I shall now proceed to prove that no exercise of prerogative suspending this law can be justified, excepting in cases of extreme emergency—of clear and manifest necessity. I shall prove this by reference to the highest and most unexceptionable authorities, and shall begin with that of Lord Erskine. The House will see at once that it is in precise accordance with the doctrine I have laid down. Upon the occasion of the Orders in Council, Lord Erskine placed his opinions on record by moving certain resolutions in the House of Lords. The resolutions are as follow;—1st. That the power of making laws to bind the people of this realm is exclusively vested in his Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons of the realm in Parliament assembled; and that every attempt to make, alter, suspend, or repeal such laws, by order of his Majesty in Privy Council, or in any other manner than by his Majesty or Parliament, is unconstitutional and illegal.2nd. That the advising his Majesty to issue any Order in Council for dispensing with or suspending any of the laws of this realm, is a high violation of the fundamental laws and constitution thereof; that the same cannot in any case be justified but by some unforeseen and urgent necessity, endangering the public safety; and that in every such case, it is the duty of his Majesty's Ministers to advise his Majesty, after issuing such Order, forthwith to assemble Parliament, that due provision may be made for the public safety.3rd. That the law of nations is a part of the law of the land, and that neutral nations, not interposing in the war between his Majesty and his enemies, have a legal right to such freedom of commerce and navigation as is secured to them by the law of nations.These are the opinions of a man so eminent in the law, as to have been selected to fill the office of Lord Chancellor by an Administration which professed principles similar to those of the present. I can quote many other authorities to the same effect; but as I presume that this House will partake of the indisposition, generally manifested by its predecessors, to the hearing of long quotations of legal opinions, I will, instead of entering into detail, beg leave to refer to a passage which comprises the chief authorities on which I rely, and which is contained in a very able pamphlet, 776 written upon the subject of the Orders in Council, and universally ascribed to Lord Brougham. I know not whether that noble and learned Lord be the author or not, but the pamphlet exhibits a degree of learning and ability every way worthy of him. The work was at the time reviewed in a celebrated periodical publication—The Edinburgh Review. It was spoken of in terms of the highest praise, and the only fault pointed out was, that it understated the force of law, as compared with prerogative, and did not place on sufficiently high ground the legal rights possessed by merchant-strangers. I care not whether this pamphlet be the production of Lord Brougham or not, for I refer to the passage, which I am about to read, not as an authority in itself, but because it recites the highest legal authorities in a condensed form, and thus saves me the trouble of individual reference. The following is the passage, to which I beg the attention of the House:—
'Prohibitions of exportation have also been often attempted by proclamation, chiefly in the case of arms during war, and corn during war or famine; but Hale says, "that even in times of danger they were not much relied on." That eminent lawyer concludes that the maxim que la mer soit ouverte is the ancient principle of our Constitution, and that the ports can only be shut either against the trade of natives or of foreigners at enmity with the Crown by Statute.
'The opinions of other lawyers, and the practice of the Constitution in later times, have been precisely consonant with this principle. In admitting the power of the Crown to lay an embargo, Lord Chief Justice Holt adds, that it must be upon great emergencies. The authorities cited for this power in the arguments of Mr. Hampden's counsel go only to prove its existence in "time of war and imminent danger; "meaning, evidently, not merely a state of warfare in general, but some specific and temporary object of the war—as an expedition, rebellion in the country, &c. So in the case of impositions cited for the same purpose, Mr. Hakewill, who states the power most widely, speaks of a short time, and instances as an emergency which would give the power, "the want of shipping upon some sudden attempts." While Mr. Gelverton denies, 777 that since the time of Edward 3rd, any authority, except that of Parliament, can, except for the moment, and on a Very extraordinary emergency, affect the trade of the realm.'
This pamphlet has also the following remarkable passage:—
'Will it be pretended, in the reign of George 3rd, that the Crown can prescribe what merchant-strangers are to do in this realm, when the Judges of Philip and Mary, all in one voice, declared that it could not lawfully prevent them from coming here, or oblige them to trade in one port rather than in another? Will it be maintained, that because the Crown may declare war against a foreign prince, and make his subjects alien enemies, therefore it may, without declaring war, impose restraints upon their conduct within this realm, when we see that there is no power whatever of preventing those subjects from trading in all parts of the realm, so long as peace subsists with their Sovereign? '
I have now referred to the express provisions of the Statute Law—to the recorded opinions of Lord Chancellor Erskine—to the supposed authority of the present Lord Chancellor; together with the authorities which he quotes—namely. Chief Justices Hale and Holt, and the Counsel of Hampden, all of whom concur in maintaining the proposition for which I contend, that the rights given to foreign and native traders by the statute law are indefeasible, except in time of war, or some imminent emergency threatening the public safety. These are the only occasions on which restrictions can be placed by prerogative on those rights which stand on the same foundation of law with all other rights of the King's subjects.
The hon. and learned member for the Tower Hamlets met my argument the other night by a reference to the authority of Lord Stowell. It is necessary that my proposition should be clearly understood. I am not contending against the existence of a prerogative inherent in the Crown, to suspend, under certain circumstances, privileges and immunities conferred by law. I am prepared distinctly to admit, that there is such a prerogative of the Crown; but I maintain that that prerogative cannot be constitutionally exercised excepting in some case of mani- 778 fest necessity. I maintain that, in relation to a foreign state, the Crown cannot, in time of peace, deprive merchant-strangers of their legal right of free intercourse, excepting in one of these two cases; first, to procure redress for actual injury sustained by subjects of the Crown—that is, to exercise the right of reprisal; or in the bonâ fide contemplation of hostilities with the power against which the measures of preliminary caution or severity are directed. This is the limitation which I place on the prerogative of the Crown. If the power of the prerogative extends beyond these limits—if, on the mere arbitrary allegation of State necessity, or on the vague apprehension of possible war, the Crown can suspend the law, then we live not under the rule of law, but under that of undefined and discretionary power. I know that, in other cases, besides those to which I have referred, the Crown has claimed the prerogative of dispensing with the laws; but those are chiefly cases of domestic dangers, wherein the measures taken have not interfered with our international relations; and a reference to these cases will show, that the claim of a suspending prerogative has been uniformly watched with the utmost jealousy; that, in some cases, Parliament has conferred by Statute the suspending power; in others, wherein it has been exercised without previous authority, has sanctioned the act, and indemnified the agents.
In 1803, on the breaking out of the last war with France, circumstances existed which induced the Government to think that it might become necessary to suspend the ordinary operation of the law in certain cases. I find, however, that the then Government did not imagine that the Crown had an inherent authority to do this, for power was expressly given by Statute for that purpose. The 43rd George 3rd, first recites, that, "Whereas the public safety may require that temporary restraints should be imposed on the exportation of copper from his Majesty's dominions;" and then enacts, "that from the time of passing this Act until six months after the ratification of a definitive treaty of peace, his Majesty shall have the power to prohibit the exportation of copper to any place in Europe by Orders in Council." The period during which his Majesty was authorized to exercise this extraordinary power was expressly limited to six months 779 after the ratification of a definitive treaty of peace. In 1766, under the Administration over which Lord Camden and Lord Chatham presided, there was an apprehension of famine, and, by the advice of his Ministers, the King exercised his prerogative, and issued an Order in Council prohibiting the exportation of wheat and other corn. Lord Camden, at first, contended that the power of doing this existed in the Crown, in virtue of its prerogative. A long discussion ensued upon the question. In the Parliamentary Register is an argument, in the form of a speech, attributed to Lord Mansfield, though, I believe, not composed by him, in which all the reasoning against the dispensing power of the Crown is embodied, and the result was, that the arguments of Camden and Chatham were overruled by the plain common sense of Parliament; and an Act was passed to indemnify not only the officers who carried the Order in Council into effect, but the Ministers who advised his Majesty to issue it.
The preamble of this Act, the 7th George 3rd, is as follows:—
'Whereas, his Majesty, by an Order in Council bearing date the 26th day of September last, was pleased to order that an embargo should be laid upon all ships and vessels laden, or to be laden, in the ports of Great Britain with wheat or wheat flour to be exported to foreign parts, from the date thereof, until the 14th day of November following; which Order could not be justified by law, but was so much for the service of the public, and so necessary for the safety and preservation of his Majesty's subjects, that it ought to be justified by Act of Parliament; and all persons advising, or acting under, or in obedience to the same, indemnified.'
I am aware that these cases are not immediately connected with the subject at present under our consideration, and I only refer to them for the purpose of showing, that Parliament has uniformly and most wisely exhibited extreme jealousy in regard to a suspending prerogative on the part of the Crown, even when it has been called into action in cases of great and admitted danger. The question before us now is, whether, in the foreign relations of this country, circumstances have occurred which justify Ministers in having advised his Majesty to issue au Order in Council authorizing 780 the detention of Dutch vessels, and preventing the intercourse of our own vessels with the ports of Holland; and whether. Parliament being assembled, such restrictions on our own commerce and the commerce of a friendly power, may be continued for an indefinite period on the sole authority of the Crown? I maintain they cannot—that there is no proof, no presumption even, that this embargo, as it is called, was imposed, or is now continued, either as a measure of necessary precaution to protect our own vessels from seizure in Holland, or as the means of redress for injuries sustained by British subjects, or as a measure of hostility preparatory to actual war. If it can be defended on none of these grounds, the Order in Council which authorizes the embargo is an exercise of discretionary power unwarranted by the law and constitution of this country, and at direct variance with the public law of nations.
We have had no public communication that hostilities are apprehended. In the Speech from the Throne his Majesty says, "The embargo which I had directed to be imposed on the Dutch commerce has been continued." This is not a proper description of the act of his Majesty. The Order in Council not only imposes an embargo on Dutch commerce in the ports of England but authorizes the forcible detention of Dutch vessels upon the high seas. An embargo, in the ordinary sense of the term, does not imply a right to make war on the trading vessels of a country at amity with you. This Order in Council goes much further than those which have generally been issued, even in the contemplation of immediate hostilities. Let us see, then, whether the state of circumstances existing between Holland and this country is such as to justify the resort to such unusual and extreme rigour. How does his Majesty, in his last Speech from the Throne, describe our present relations with Holland?
'I have also to regret that my anxious endeavours to effect a definitive arrangement between Holland and Belgium have hitherto been unsuccessful. I found myself, at length, compelled, in conjunction with the King of the French, to take measures for the execution of the Treaty of the 15th of November, 1831.
The capture of the Citadel of Antwerp has in part accomplished that object; but the Dutch government still refusing to 781 evacuate the rest of the territories assigned to Belgium by that treaty, the embargo which I had directed to be imposed on the Dutch commerce has been continued. Negotiations are again commenced, and you may rely on their being conducted on ray part, as they have uniformly been, with the single view of insuring to Holland and Belgium a separate existence, on principles of national security and independence.'
Why, surely this Speech from the Throne disproves the apprehension of war. Here is not a word about imminent danger of hostilities, but a public declaration that we have again resumed negotiations with a power in amity with us. Is it possible to contend that British subjects have sustained any injury from Holland? Can it be said that an embargo was imposed on British commerce because the Government apprehended the seizure of British vessels? If so, the result has proved that they were mistaken. The conduct of Holland has not justified your suspicion. She has not followed your example—she has not seized our unarmed vessels—without public notice of her intentions. The language of Ministers of the Crown corresponds with the language of his Majesty's Speech. It denies the existence of war; and if it had any meaning at all, it completely disproved the apprehension or the probability of hostilities at the time the Order in Council was issued. If the Order in Council was in itself an act of injustice which, by forcing Holland to resist, made war a probable event, such a probability of war, originating in such a cause, would be no justification of the Order. You have no right to create the fear of war by your own wrong, and then justify that wrong by the fear which is the offspring of it. The language of Ministers to which I allude is the speech of the noble Secretary of State (Lord Palmerston), addressed to his constituents. If a Minister discusses questions of peace and war at public meetings, he does it, I presume, advisedly, intending to abide by what he says. I cannot suppose that the declarations which the noble Lord made upon the occasion I refer to, were intended merely to cajole his constituents. Be this as it may, this Speech is a public intimation, proceeding from a Minister of the Crown, and it completely negatives the existence and the apprehension of war. The noble Lord is reported to have said:— 782 'Well, then, as to the third pledge of peace—aye, he would take the bull by the horns, and would not be daunted by the cries of Dutch war, with which his ears had been assailed. Why, would Gentlemen believe, that, in point of fact, there is no Dutch war at all? That England is at war with no Power great or small; that this Dutch war is a mere creature of the imagination and exuberant fancy of those who set up the cry? The embargo here, and the process of ejectment carrying on at Antwerp, are not war against Holland.'
Then the French expedition was no war! If that had been war, the Orders in Council might have been justified, because then there would have been an apprehension of hostilities; but if the siege and capture of Antwerp—if the surrender of 5,000 men as prisoners of war—if the slaughter of several hundreds was not war—and if the capture of Lillo and Leif kenshoek (if that should be effected next spring) will not be war—where, I ask, is your apprehension of hostilities, and where is the justification of your embargo? The noble Lord says, that it required a vivid fancy to foresee even a prospect of war, when France marched 70,000 men through Belgium to attack Antwerp. Why is it, then, that now, Antwerp having surrendered, and the French army having returned—why is it that for thirteen weeks British commerce has been suspended, and the armed vessels of his Majesty have been ordered to seize on the trading vessels of a friendly power? I perceive that the learned Civilian, the member for the Tower Hamlets, can hardly contain himself when he hears a doubt raised as to this being war. He says, that it is war, and nothing but war, to seize by force on the high seas the vessels of another Power. Whether that seizure be war or not, it is an act of unparalleled severity and injustice. Rarely, indeed, has England resorted to a proceeding of this nature, even under the immediate apprehension of war. I could cite many instances in which England, under such circumstances, has respected the property of private traders. When we seized the Danish fleet at Copenhagen, hostilities were not directed against trading vessels. It was not till after Denmark had seized trading vessels of our own country, that an Order in Council was issued authorizing the seizure of theirs. When, in 1804, 783 we blockaded the French and Spanish fleets in Ferrol, and seized by force the Spanish frigates laden with treasure, no Order in Council was issued authorizing the detention of the trading vessels of that country. In 1803, when the Dutch territories were occupied by the army of France, one month before the declaration of war with the Batavian republic, we imposed an embargo on Dutch ships in the ports of this country, but we did not issue an Order in Council authorizing the detention of trading vessels on the open seas. The principle of our policy, on these occasions, is evident. It is manifestly the interest of England to encourage lawful commerce. On that principle England has acted at all times. Even when hostilities were apprehended, she has wisely abstained from authorizing the detention of vessels engaged in innocent commerce on the open seas; but here, whilst you are denying even the apprehension of hostilities, you authorize the capture of private property; that is to say, you do that in a time of peace, which it has been hitherto considered impolitic and unjust to do in the contemplation of war. This seizure of the vessels of Holland on the high seas, without a declaration of war—without the slightest previous warning—is a grievous injustice. And how is it defended? What are the authorities in vindication of such an act, which can be opposed to those authorities which I have cited for its condemnation? The learned Civilian relied on the authority of Lord Stowell; to what does it amount? In deciding a case in the Court of Admiralty, that learned Judge declared that an embargo was a process frequently resorted to by nations, not immediately connected with hostilities. Who doubts this? Who doubts that there are cases in which embargo may be resorted to—cases of extreme and extraordinary emergency, in which, notwithstanding, there may be no danger of actual war? The question is not whether there are such cases; but whether this be one of them. I admit, as I am bound to admit, the decisive authority of Lord Stowell; but I deny that it sanctions this act of power. All that Lord Stowell declares is, that there may be cases of embargo not immediately connected with hostilities. Reprisal is one case. You seize the vessels, or other property of the subject of a foreign power, in order to procure redress for previous injuries sus- 784 tained from that power by your own subjects. The embargo, the seizure, may be resorted to, and yet there may be no risk even of eventual war. When our expedition to the Scheldt was in preparation, the Government of this country imposed a temporary embargo on the vessels of other countries then at peace with us, because we wished to prevent the enemy from obtaining any intelligence respecting our intentions. Here was embargo, without fear of hostilities, with the parties whose vessels were placed under temporary restraint. The detention of vessels of a country at peace with us may be justified by the law of nations in a case in which we required them, on a sudden emergency, to convey troops. Here would be embargo and forcible detention, justified by considerations of extreme necessity and public safety. Here are cases falling within the doctrine of Lord Stowell; and the arguments of the learned Civilian amount to this—because there are some cases of embargo, not connected with hostilities, recognized by Lord Stowell, therefore Lord Stowell's authority may be pleaded in favour of this particular act of power. It may be said, that Holland has acted unjustly, or unfairly, towards the new state of Belgium; but I deny, even if this be true, that we are justified by the law of nations in authorising reprisals on Holland for injuries committed by her on a third party. I deny that you have a right, in order to redress the wrong of a third party, to lay an embargo on the ships of the power alleged to have committed the wrong, and still less on those of your own subjects. Vattel expressly condemns such a proceeding; and he refers to a case wherein injury had been sustained by the Knights of Malta from Holland, and wherein England granted reprisals against Holland; and contends that such reprisals were contrary to the law of nations. In respect to reprisals, and in respect to the right of espousing this quarrel of a third power, Vattel observes—
'But to grant reprisals against a nation, in favour of foreigners, is to set himself up as judge between that nation and those foreigners, which no sovereign has a right to do. If it be objected that we may espouse the quarrel of another state in a war which appears to us to be just, the case is different. In granting succours against a nation, we do not detain her property or her people that hap 785 pen to be within our territories under the public faith; and in declaring war against her, we suffer her to withdraw her subjects and her effects. There are cases in which reprisals would be greatly condemnable, even when a declaration of war would not be so. When the question which constitutes the ground of a dispute relates not to an act of violence, or an injury received, but to a contested right, it is a declaration of war that ought to follow an ineffectual attempt to allow justice by pacific measures, and not reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith.'
The learned Civilian, however, contends, that we may interfere by force to redress the injuries of a third power, and triumphantly refers to a case in modern times, in which England directed reprisals for injuries sustained, not by England, but by Hanover. He says, that on the invasion of Hanover by the Prussian troops in 1806, we laid an embargo upon Prussian vessels, and assigned the invasion of Hanover as the sole cause of our interference. If I do not destroy this Prussian precedent from the foundation—if I do not show that so far from supporting the learned Civilian's argument it is conclusive in my favour—I will abandon the question altogether. I will show, that so far from the Order in Council, laying an embargo on Prussian vessels, having been issued in retortion, or by way of reprisals for the invasion of Hanover, it was on account of previous injuries inflicted by Prussia on British commerce. The Order in Council referred to by the learned Civilian states, that—
'Whereas his Majesty has received advice that the king of Prussia has taken possession of various parts of the Electorate of Hanover, and other portions of his Majesty's dominions; and whereas the king of Prussia has also notified, that all British ships shall be excluded from the ports of the Prussian dominions, and certain other ports in the north of Europe, and not suffered to enter and trade there with, in violation of the just rights and interests of his Majesty's subjects, and contrary to the law and practice of nations n amity with each other; his Majesty, by the advice of his Privy Council, hereby orders, that an embargo be laid upon all vessels belonging to his Prussian Ma- 786 jesty at present in the ports of the United Kingdom.'
Now it appears, from this Order, that so far from the invasion of Hanover being assigned as the sole cause for the imposition of the embargo, there is another important reason alleged—namely, the injury inflicted upon British commerce; which, of course, was a sufficient ground to justify the proceeding. But this is not all. Soon after the issue of this Order in Council, his Majesty made a communication to Parliament, to which I beg the attention of the House:—
' While the violent and unjustifiable proceedings of Prussia were directed solely against the Electorate of Hanover, his Britannic Majesty was advised by his Ministers "to forbear all recourse to his British subjects" in support of his rights; and to content himself with "remonstrating" by amicable negotiation, against the injury he had sustained, and resting his claim for reparation on the moderation of his conduct, on the justice of his representation, and on the common interest which Prussia herself must ultimately feel, to resist a system destructive of all legitimate possession. But, when instead of receiving assurances conformable to this just expectation, his Majesty was informed that the determination had been taken of excluding, by force, the vessels and commodities of Great Britain from ports and countries under the lawful dominion or forcible control of Prussia, it was impossible for his Majesty longer to delay to act, without neglecting the first duty which he owed to his people. The dignity of his Crown, and the interests of his subjects, equally forbade his acquiescing in this open and unprovoked aggression.'
And this is the case on which the learned Civilian relies in order to disprove my argument that the wrongs of third powers ought not to be redressed by means of reprisal! So far from alleging the invasion of Hanover as the sole ground of hostile proceedings against Prussian vessels, his Majesty informed his Parliament, in substance, if it was only the invasion of Hanover of which he had to complain, he would not have imposed restrictions on the commerce between England and Prussia, and that it was not until the ships of his own subjects had been refused admission to Prussian ports that he had thought it necessary to direct 787 the embargo on Prussian vessels. The learned Civilian stated, that there were negotiations carrying on with Holland of great importance, which might have terminated in general war, unless Holland made what he considers just concessions. Now, I positively deny that you have a right to wield this prerogative of the Crown as an instrument of negotiation. I deny that the King is empowered to suspend the law, and to fetter the commerce of his subjects, on the ground that by such an exercise of authority, he may possibly compel a foreign power with whom he is negotiating into submission to his views. There is an end of all security to weaker powers from the maxims of public law, if they may be overruled, at the discretion of the stronger, on such vague allegations of State necessity and public policy. Ministers may think the king of Holland unreasonable and obstinate in refusing to deliver up the possession efforts assigned to Belgium; but I deny that therefore they have a right to place an embargo on the ships of that nation. It is a matter for negotiation, which may perhaps end in war; but, in the present state of things, Ministers have no right, because the detention of vessels is a less forcible act than war, to resort to such a proceeding. There are recognized states of peace and war; the actual commencement of hostilities requires a declaration of war, but such an intermediate state as that in which we now are with a nation in amity with us is a thing unknown before. This country ought to be the last to establish a precedent of this nature. I will not enter into the merits of the question at issue between Holland and Belgium—I will not say a word with respect to the course of policy which Government has pursued, because this is not a fit occasion for doing so. For the sake of argument I will admit all that Ministers have said as to the importance of compelling Holland to comply with the wishes of the Allied Powers, but I do not the less deny, that there is a right inherent in the Crown to impose restrictions on the commerce of this country, and on that of an ally, for the purpose of extorting the acquiescence of Holland. It is too much that, on a mere allegation of State necessity, the trade of the country should have been suspended for thirteen weeks by an Order in Council, signed "Charles Greville." What grievous calamities must be caused 788 by this Order in Council! What opportunities does it furnish for improper practices! Let it not be supposed that, in referring to the danger of a precedent, I am inferring that the evil has really occurred. That is not the case, for I have heard of no instance of abuse. It is evident, however, that a state of restricted trade, occasioned by Orders in Council, affords opportunities for conferring undue favour upon particular persons. The law of the land gives to all persons the privilege of trading with other nations; but when that law is suspended, Ministers claim, and perhaps it is necessary that they should possess, the right of remitting the Order in certain cases. But, whether abuse occurs or not, as regards our own merchants, what a terrible wrong must be sustained by foreign merchants whose vessels are seized! Civilization and refinement appear to have made little progress in regulating our intercourse with a foreign power. We revert for our precedents to ages of barbarism, when injuries and measures of retaliation were directed—not against the State—but against the innocent subjects of that State. At this period, when we discountenance plunder by armies on land, are we, in England, to encourage it by sea upon defenceless traders? I say that these acts and decrees are the acts and decrees of barbarism, and not of civilization. You seize upon vessels proceeding from a Dutch colony to Holland, the captains of which have never heard of your dispute with their country, and received no notice whatever of the hazard which they run! You do not authorize the detention of vessels of war. No; you reverse the practice which this country has followed in former instances, by making war, not upon armed vessels, but defenceless merchant ships; and you not only take possession of those in our own ports, but seize upon others on the open sea, in spite of Hale's exulting declaration—Que la mer soit ouverte. If the cargo on board a ship thus seized be of a perishable nature, the Government kindly permits it to be landed; that is to say, after a vessel laden with sugar has shipped a quantity of water during a long voyage, and the sugar is daily melting away, permission is given to have it placed in a British warehouse. The mere process of unloading and reloading is a positive injury in such a case. An instance of this kind has occurred within the last month, and 789 I believe that the captain of the vessel, having no instructions to regulate his conduct, refused to land his cargo. The sugar is not permitted to be imported for the purposes of refining, but must be lodged in warehouses, and shipped again when the embargo shall cease. To make the matter worse, however, the loss will mainly fall upon the British insurers; for I apprehend that most of the vessels are insured. I do not know whether the insurers are by law bound to make good losses occasioned in this manner, but I am informed that such is the high feeling of honour on the part of British insurers, that in a case of this kind they will voluntarily bear the loss.
The subject is one deeply deserving the consideration of the House, and I wish the attention of Gentlemen to be directed to it for the purposes of deciding whether or not it is just and fitting to persevere in the maintenance of such Orders in Council. It may be said, that the Order has been issued to promote some great object of State policy. As far as I can judge, I doubt the wisdom of the policy which has dictated the issuing of the Order in Council; for I will now put out of consideration the legal and constitutional question. Taking the case, however, on the showing of Ministers themselves—admitting for the sake of argument, that the public interest requires the immediate arrangement of the dispute between Holland and Belgium—is there not reason to suppose, that the revocation of the Order will facilitate the settlement of the extremely difficult and complicated question at present pending? A Conference took place between Holland and Belgium and the Five Powers of Europe. The Five Powers agreed as to the principle of a treaty which has been lately enforced: but three of those Powers refused to take part in any attempt to compel Holland by force to comply with the stipulations of that treaty. The main object of the Convention between England and France was the recovery of Antwerp, and the forts depending upon it, from the dominion of Holland. That object the King's Speech states to have been attained. Antwerp and the forts immediately dependent upon it have been recovered; the French army has marched back into France; why then should the English Order in Council be retained? Is there anything inconsistent with the honour of England in revoking 790 it? What is the consequence of that Order? Since it was issued, the Scheldt has been closed against the vessels of England and France. If the Order should be revoked, would not the Scheldt be opened? Is not the Order in Council at present the chief impediment to the renewal of negotiations? The Three Powers refused to take part in our forcible measures: a portion of those forcible measures continues in the existence of the Order in Council. Can the Three Powers again take part in the negotiations until it be withdrawn? Or will Holland consent to negociate with France and England, excluding the Three Powers from the negotiation? Will she treat with the Powers who have resorted to force, and reject the aid of other powers which were adverse to the employment of force? Is not, in truth, this Order in Council the great obstacle to the renewal of negotiation?
It may be, and probably is, that the real motive for this Order in Council is the hope that the severities which it authorizes will indispose the people of Holland towards their own Government and thus coerce that Government into submission to our will. Beware how you rely on the effect of unjust severity There are pressures which combine, instead of dissipating, the elements of national strength. There are trials to which nations are exposed, in which the public spirit is refined and purified from the dregs of baser passions—in which there arises that holy flame of resistance to wrong, which redresses the inequalities of physical force, and confounds the calculations that rely on the influence of ordinary motives. Fear is a powerful motive; self-interest is a powerful motive; in ordinary times much will be endured from the love of repose, and from the habits which commercial industry engenders; but there have been periods in the history of many nations—there have been periods in the history of our own—above all, there have been periods in the history of that Holland which is now the object of our displeasure, when fear and interest, and the love of repose, and the habits of peaceful industry, have been as dust in the balance compared with the sense of indignity and wrong, and the spirit of heroic fortitude that is roused by unjust aggression. From a strong impression that the measures we are now pursuing will provoke resistance rather than ensure submission—from 791 serious doubts whether they are in conformity with our own municipal law, and with the law of nations—whether they are not equally opposed to public policy as to public justice—earnestly press these considerations upon the attention of Government and of Parliament.
§ Dr. Lushington
said, that as the observations which he had made on a former occasion had been so frequently the subject of notice by the right hon. Baronet, the House would pardon him if he troubled them with a few remarks in reply to the right hon. Baronet, and in justification of the sentiments he then delivered. He assured the House, that in doing so, he should not feel it necessary to detain them long, nor should he attempt to contest many of the propositions which the right hon. Baronet had laboured to establish; least of all should he be disposed to deny, nor had he even in the whole of his life, denied, the doctrine which the right hon. Baronet had eloquently enforced at the end of his speech, that in all our dealings with foreign states, in all our intercourse with them, and more especially in dealings of any kind between Great Britain and states of minor importance, it was the duty of this country, as well as her interest, ever to adhere to those principles of justice, and of international law, whereby the weaker were defended from the oppressions of the stronger. He had ever been the advocate of such principles, and he had often had to deplore that the governments with which the right hon. Baronet had been successively connected, had so often shown such little regard for the rights of foreign states, and so little respect for those principles of magnanimity by which it was justly said, the intercourse of great with small states ought to be conducted. Indeed, he had but to look back to the year 1814–1815, when what was called the settlement of Europe took place, to see the numerous examples in which Great Britain had forgotten those doctrines which it now suited the purpose of the right hon. Baronet to maintain. That they might be observed, was his perpetual prayer—that they might ever be treated as objects of respect he most ardently desired, and so long as he had a seat in Parliament, he should ever be found, when any administration swerved from them, to be the first individual to denounce such misconduct. He should be the last man in the world to justify the 792 assumption of an authority which the laws of nations did not warrant. He had, on a former occasion, taken the liberty of showing that what had fallen from the right hon. Baronet was founded on a fallacy; but he must be allowed to say, that in what he had then expressed, he had only given utterance to his own feelings, ignorant of any circumstances but those with which he had become acquainted from the usual and ordinary sources of information; and for the arguments with which he was now prepared to defend his former opinions he alone was responsible. He should not repeat them if he were not convinced that they were well founded in law and justice. The right hon. Baronet doubted whether the Orders in Council were in conformity with the laws of nations—with the municipal laws of the land—and lastly, whether they were not in themselves impolitic. It was evident, from the commencement of the right hon. Baronet's speech, that he had come down in the full determination to answer the speech of the noble Lord, the Secretary for Foreign Affairs, addressed by that noble Lord to his constituents. The right hon. Baronet said, that these Orders in Council were not issued in contemplation of hostilities, and if that was so, that they were in violation of the laws of nations, and that they were not issued as reprisals for injuries sustained. If the question was put in that shape, he was afraid he must be of accord with the right hon. Baronet, for he must admit at once, that if they were issued without the probability of hostilities taking place against the state to which they related, he was not prepared to defend them; but, judging from the treaties on the Table, they seemed to him to have been issued in strict accordance with the law of nations. He should not now enter into the consideration of the circumstances that led to those treaties. He was not obliged to justify either the treaty of 1831 or 1832. He was perfectly aware of the principle on which those treaties were entered into; but he was not called on, for the purposes of the present argument, to go into any consideration of that principle. The right hon. Baronet had said, that he should give no opinion as to the transactions that had taken place between this country and Holland, yet no one could have listened to the concluding part of his speech without seeing that he treated those transact- 793 tions in a manner unfavourable to the Government, and so to prejudice the question under discussion. He (Dr. Lushington) would state the principle on which he meant to argue the question. He must assume that the treaties of 1831–1832, were justified by the laws of nations. In what situation, then, was this country placed? He should answer that question by a quotation from the Convention between France and England. The treaty of 1832 contains this passage:—" Being moreover convinced, that any further delay in the execution of the same would seriously endanger the general peace of Europe, their said Majesties, notwithstanding the regret which they experience at finding that their majesties the emperor of Austria, the king of Prussia, and the emperor of Russia, are not at present prepared to concur in the active measures which are requisite for the execution of the said treaty, have resolved to fulfil their own engagements, in this respect, without further delay." If that meant anything, it meant that the general tranquillity would be endangered by allowing the treaty to remain any longer unexecuted. That was a matter which was not to be lost sight of in discussing this question: because if the Government believed, and were prepared to prove, that the general peace of Europe would be endangered, then they came to the first general principle on which the laws of nations depended. If the Government believed this, it was not merely their right, but their duty, to take all measures, by negotiation, by embargo, by reprisals, or even by a declaration of war against that particular state, to secure the peace and tranquillity of other nations, as well as of Great Britain itself. That was his position. He maintained, from the beginning of the embargo, that it was issued in expectation of hostilities. The Convention went on to observe, that the contracting Powers might see the necessity of interfering, and slated the manner in which they should do so—first, by the entry of a French army into Belgium; and by a combined English and French fleet being stationed off the Scheldt. If that was not a measure directly leading to war, it had at least a warlike tendency. Such steps as these were generally the preliminaries to hostilities; and if they looked back during the last forty years, it would be found, that such 794 steps had been generally taken before we declared war, though, indeed, we had frequently made war without any declaration of war, for such had been the custom of the last forty years. In some cases a declaration of war had not been made till long after the embargo. The Swedish embargo, for instance, was laid on in the month of May, and the declaration of war was not made till the July following. No person could hesitate in coming to the conclusion that the treaty to be enforced by an army and fleet, was a treaty which in all human probability might lead to the commencement of hostillties. But, at the same time, it might not necessarily do so; for it was not impossible that a country like Holland, seeing such Powers as England and France were determined to enforce a particular measure, would yield, if not to the force of argument, yet to a sense of danger, and might thus concede the point in controversy. On that principle—on the principle that the whole proceeding was a preliminary to war, he defended these Orders in Council. The passage he had cited on a former occasion from Lord Stowell's judgment was strictly applicable to this case. And if any man knew Lord Stowell as well as he did—if any man had listened to the judgments of that noble Lord as long as he had—that person would come from the hearing of them convinced of this truth, that of all the Judges who had ever presided in Courts of Justice, there never was one who had taken such infinite pains, care, and reiterated labour, that no principle, no doctrine should emanate from him applicable in a manner different from that in which he believed the law ought to be applied. All these judgments, too, it should be recollected, were corrected by Lord Stowell's own hand, and there was no man who could possibly think, that that noble Lord did not see when he delivered them what would be the full effect of them. That noble Lord had given the judgment then quoted, not only with reference to the particular embargo at that time in question, but upon the general laws of nations; and after stating that it could be justified by those laws, he added, "for me to disobey would be a high misprision." How was it possible for the right hon. Baronet to deny, that the authority of Lord Stowell went further than he (Dr. Lushington) had gone? 795 The noble Lord, speaking of the property in the ships on which an embargo had been laid, said, "the property would be restored at the conclusion of the embargo. It was a process often resorted to in the practice of nations, for objects not immediately connected with the commencement of hostilities." Did the noble Lord mean by that a civil embargo? No, he knew that such an embargo would not be permitted in these days; he meant an embargo imposed in consequence of differences with a foreign state—differences that it was probable would lead to hostilities. It was not necessary that they should be immediately connected with the expectation of hostilities. All that was requisite for him (Dr. Lushington) was to show that an embargo might take place on the authority of the laws of nations. The right hon. Baronet had referred to Vattel. What he quoted from that author was to be found in his chapter of "Reprisals." The right hon. Baronet had denied that reprisals might be granted by one country on account of a quarrel between two others. That point need not be contested. It was not the question now under discussion. Suppose France were at war with the Porte, and we were to grant reprisals in aid of the Porte, that would resemble the case which the argument of the right hon. Baronet supposed. The observation, however, did not apply to the real case, for the foundation of the whole proceeding was, not what had taken place between Holland and Belgium as respected our particular interest, but because we felt that if the matters in dispute between them were not adjusted the peace of Europe would be endangered, and consequently the peace of Great Britain [Sir Robert Peel: Suppose Holland was in the right]. If so, of course, the right hon. Baronet might argue, that we were clearly in the wrong; but that was assuming the whole matter in dispute. If the whole of the premises thus assumed, were admitted, no doubt the right hon. Baronet could easily and properly arrive at his conclusion; but was he justified in assuming them? In his opinion, the right hon. Baronet was not. It did not appear from any papers yet laid upon the Table of the House that Holland was exclusively in the right. He assumed, and it was not for him to prove it, that the Government was justified by the particular circumstances of the case, in interposing between Holland 796 and Belgium, to settle their disputes. He assumed also, that in the progress of that interference, circumstances might arise which justified hostilities; and that, under such circumstances, it would be right in the Government to impose an embargo on the trade of either party. Whether the Government had acted right in interfering, and whether in its interference it had acted justly towards Holland were questions into which he would not then enter, because they could not be satisfactorily discussed, until all the papers connected with them were laid before the House. He would, however, then maintain, that where civil war had commenced in a state, and had separated two parties in that state, neither party being recognised, a foreign state, according to all the authorities, might interpose between them. The right hon. Baronet was aware that he might carry this argument a great deal further if he pleased; but it was more than sufficient for his argument if thus much were admitted. He did not need to press the case even to that extent, for he contended that this country having great interests at stake, which interests were put in jeopardy by the continuation of the war between Holland and Belgium, had a right to impose the embargo, for the protection of those interests. The right hon. Baronet, with an air of satisfaction and triumph, had made some observations on the embargo upon Prussian property; but he would beg the House to remark, what was stated by the Order in Council itself as the reason for the embargo, viz., that the king of Prussia had invaded the dominions of the king of Hanover. Notwithstanding this clear assertion of the grounds on which it was imposed, the right hon. Baronet had argued as if there had been a previous detention of British vessels in the ports of Prussia. He had carefully perused the document, since the reference was made to it by the right hon. Baronet, and he could take upon himself to say, that there was no passage in it to justify the position attempted to be founded upon it. He would insist further, that the embargo in question could only have been imposed by the authorities of this country under the supposition that the conduct of the government of Prussia was likely to lead to the commencement of hostilities; and such being the undoubted reason for it, he was surprised at the tone the right hon. Baronet had assumed, as 797 well as at the argument constructed upon such a foundation. In one point he entirely concurred with the right hon. Baronet, viz., that the power of imposing an embargo ought to be exercised with the greatest caution, and that it was of the utmost importance to the commerce and interests of this country. He agreed, also, that it was a measure which ought only to be resorted to in cases of extreme necessity. He did not agree, however, that an embargo could never be imposed by authority of the Crown of Great Britain, excepting in cases where hostilities were immediately to supervene; and recollecting the set of the whole tide of authorities, and the necessary acquaintance of the right hon. Baronet with them, he was surprised that he had supported so unwarranted a proposition. It was sufficient to authorise an embargo if it appeared probable that a state of hostilities might be the termination of the then existing state of affairs. If the rule were otherwise, let the House reflect what might be the situation of Great Britain in her negotiations and intercourse with foreign Powers. Self-protection was the principle by which these matters were regulated, and Great Britain did not impose embargoes for the purpose of interfering with the rights of other states, or for the sake of promoting any particular interests, and giving one set of merchants the advantage over another, but for the great and legitimate purpose of defending her own rights and interests. Sometimes—and in this instance such was possibly the case—an embargo was resorted to in the earnest hope, if not expectation, that a measure of such energy might prevent the alternative of a war, from the contemplation of the horrors of which all men and all governments naturally shrunk. In the case of 1766, to which the right hon. Baronet had referred, it was supposed that the Crown had violated the Statute of Charles 2nd, which enabled the King's subjects freely to export their corn, provided it had not reached a certain price. Whether a civil embargo could be imposed in case of famine, or of the prevalence of pestilential disease, if there were no statute expressly to authorise it, with out the necessity of Government afterwards coming down to Parliament for an indemnity, was a great constitutional question which he (Dr. Lushington) did not pretend to discuss, much less to settle, and the set- 798 tlement of which was not at all necessary upon the present occasion. But turning aside from a civil embargo, if he had proved to the satisfaction of the House and the country, as he believed he had,' that the embargo against Holland was not of a civil nature, but in anticipation of hostilities, then, according to the admission of the right hon. Baronet, he was entitled to say, that it Was not an infringement of the rights and commerce of foreign states. He begged to repeat, before he sat down, that if he were wrong in his argument, the error was his own: if he were mistaken in his facts, he had received none of them from Government, and Government could not therefore be compromised by any remarks or opinions which he had delivered. Although sincerely attached to the present Ministers of the Crown, he had no connection with, and was entirely independent of them: and in the discussion of this important question, he had relied on the resources of his own mind, and had not made the slightest reference to them upon any point. One word more, and he had done. In the present state of the negotiation between this country and Holland, and in the present state of the affairs of Europe, was it wise, was it politic, or could it be advantageous to this country, that this debate should have been forced on by the right hon. Baronet? Was it likely to promote a favourable issue to the pending differences, or to secure the peace of Europe at this crisis, that the right hon. Baronet, of all men, should undertake the task of proving the Government to bewrong, and attribute to it a desire to do injustice to Holland? If the facts were as the right hon. Baronet assumed them to be, would he not best perform his duty as a good subject by refraining from the expression of sentiments, the manifest tendency of which was to induce Holland to protract her resistance? It was to be deplored, that a gentleman of the station, ability, and information of the right hon. Baronet should have indulged in observations so little in keeping with his character, and which differed more in the eloquence of their manner than in any other particular from what was only to have been expected from those high-minded, sagacious, and no doubt disinterested statesmen, who a short time since met at the London Tavern, avowedly to express their infallible 799 opinions on the so called "Dutch war," but in reality to lend their mighty aid towards overthrowing the present Government. Yes, these one-sided, prejudiced, and prejudging assertions, were very well at the London Tavern, but quite unworthy of the right hon. Baronet. It seemed to him, that at this moment, and in the present aspect of affairs, a good subject best performed his duty to his King and country, by concealing many of the sentiments which had been uttered, even if he entertained them. A proper time for the delivery of those sentiments would of course ere long arrive, and he deeply deplored that the right hon. Baronet had thrown the weight of his character into the scale—a circumstance not very likely to moderate the apparently determined resistance of Holland to all that was just and reasonable. He must again remark, that it was rather a hard measure of justice to the present Government that the question was not brought forward in a shape on which the sense of the House could be taken, so that the charge would be suspended until it could be brought forward in a form which might promise greater success to the political adversaries of the present Government.
was of opinion that the learned Gentleman's objections to discussions like the present, pronouncing them highly inexpedient, and possibly mischievous, while the negotiations and policy to which they referred were still pending—would, if acted upon, almost put an end altogether to the check and influence which Parliament properly exercised over the Executive Government in the conducting of our foreign policy. Neither was the learned Gentleman's taunt against hon. Members on the opposition side of the House, of their wish to embarrass Ministers by such premature discussions, better founded, for in point of fact this was the first occasion of any interference with the foreign policy of Ministers on the part of an opposition Member; and surely if ever there was an occasion that imperiously called for the interference of Parliament, the conduct of Ministers with regard to Holland was a proper one. Here was an embargo imposed at the mere discretion of the advisers of the Crown which had been now in force three months, which was seriously detrimental to the best interests of the country, and yet concerning the necessity of which Parliament 800 knew nothing. Hon. Members erred greatly in supposing that only what were called Dutch interests were affected by the embargo. British interests were as much involved—so much so, indeed, that he should say, that the House neglected its duty to the constituency if hon. Members did not endeavour to obtain every information which Ministers had to bestow upon the subject, and indeed invite the attention of the Legislature at large to the foreign policy of the country, particularly as it applied to those two states with which more than any other British interests and British glory and associations were connected—he meant Portugal and Holland. It was the more necessary for them to obtain information with respect to those states, for appearances, at least, were far from flattering to the noble Foreign Secretary's negotiation respecting them. He knew it was impossible that negotiations so complicated and voluminous as those which had engaged that noble Lord since his last accession to office should be entirely free from defect and mismanagement, but after making the amplest allowance on this head, he could not explain why it was, that our relations with Portugal and Holland should just now bear so inauspicious an aspect. Owing to the noble Lord's sagacious negotiations a pipe of port was now 10l. 5s. dearer to the British merchant than formerly; while, in his capacity of mere mediator with our old Dutch ally, the noble Lord had contrived to bring us to extremities, though, apart from the consideration that England was the oldest ally of the king of the Netherlands, and that its interests had most to lose from any unsought, or harsh interference on the part of afriendly power, England or France had no more right or business to meddle with Holland than Russia, Austria, or Prussia. It was because the interests of British commerce were so intimately involved that he and those who thought with him complained so earnestly of the policy pursued by the noble Lord; and this consideration might have spared the sneers of the learned Gentleman against the meeting which the merchants of London had thought it their duty to hold at the London Tavern in reference to the noble Lord's foreign policy. The gentlemen who attended that meeting were, it was true, but British merchants, but, humble as they were, they might be spared a sneer, when it was recollected that by a measure to which the 801 learned Gentleman had given his zealous support they were deprived of a direct representation in Parliament. If they happened to be members of a Political Union, meeting some 100,000 strong for the purpose of dictating to the Legislature, they, perhaps, would meet with more favour from the learned Gentleman, in imitation of his official superiors. The learned Gentleman had admitted, that the right hon. Baronet (Sir R. Peel) was correct in laying it down that an embargo could only be justified by the apprehension of hostilities, or by reprisal. Now, reprisal on the part of Holland was entirely out of the question; and then how was the other alternative, that of hostilities, to be reconciled with the emphatic declaration of the noble foreign Secretary, in Hampshire, that there was no such thing, that only an ardent imagination could conceive hostile relations between this country and Holland.
thought the speech of the noble Lord to the electors of Hampshire was to the effect he had quoted, but, of course, he was bound to accept the noble Lord's present version. Then the question came to this, was the embargo justifiable under the circumstances in which it was imposed? The noble Lord had himself stated that England had no direct interest in interfering, and that, in mediating between two states with both of which we were on friendly terms, British interests were not injured. But how was this reconcileable with the fact that our commerce with the Netherlands had been entirely suspended for nearly three months, by the mere exercise of the prerogative of the Crown? He repeated, that our whole commerce with an old ally, with which we had long maintained the closest intimacy, had now been suspended some three months, by the mere exercise of the royal prerogative, without any information justifying the Act having been laid before Parliament. If the Crown could thus, by the mere exercise of its prerogative, suspend the commerce of the country for three months, why not for three years? Where was to be the limit? What was or what was not a justification? He maintained, that the learned Gentleman had failed in showing, that by the law and usage of the constitution, the suspension to which the present discussion referred was justifiable, not to 802 say imperative. The learned Gentleman seemed to lay great stress on a dictum of Lord Stowell's respecting the circumstances which justified an embargo; but if that dictum were good for anything, it would be a justification of every possible case of embargo which any foolish government which might busy itself in interfering where it had no business might think necessary for the success of its own unnecessary purpose. He would not discuss the present question in reference to our existing relations with Holland,—he meant as possibly hostile from recent circumstances, but would consider it with the understanding, that we had and have no real cause of quarrel with that country, and that our differences arose solely from our friendly mediation. In that light, then, he would ask, was the policy of the noble Lord the most conducive to the honour and interests of the country? The noble Lord was bound to show that it was—the onus probandi lay with him. Was it prudent in the noble Lord to insult a brave and intelligent nation, long on terms of the closest intimacy with England? It was not now, as the noble Lord must well know, as formerly, when the question of our friendship or hostility with a foreign state depended almost altogether on the single will of its ruler—when it depended on its emperor or king, or other municipal authority, as to whether we should be at war or peace. But now things were somewhat different, and it behoved the noble Lord to pause ere he joined another state (which, comparatively with that the two were about to bully and dictate to was numerous and powerful) in insulting a people among whom the British name was hitherto invariably a passport to friendship and every kindly affection. How completely the noble Lord had destroyed this kindly disposition might be inferred from the fact that an Englishman could not now well walk the streets in any Dutch town without being insulted by the indignant people. Nay, to such an extent had this anti-British feeling spread among the possessions of the King of the Netherlands, that, as he was that morning informed, English merchants sending goods to the Dutch East-India colonies had to send them in American vessels, fearful of their being destroyed if sent in their own ships. So, then, in addition to the other beneficial results of the noble Lord's negotiations, it tended to aggrandize our great 803 maritime rival at the expense of the British shipping interest. The noble Lord, while he was protocoling in Downing Street, wholly forgot British shipping and British interests; and when the British merchants, therefore, found their property injured or destroyed, was it to be wondered at that they should feel somewhat indignant, and meet at taverns, though that was so much condemned by the learned Civilian, in order to take measures for bringing their grievance before the Parliament. He thought that they acted right, though he was not one of the party.
The Attorney General
had come down to the House prepared to prove, that the embargo of which hon. Members opposite complained was perfectly justifiable by the law of the land and the practice of the constitution; but was in a great degree spared the task by the observations of his learned friend, as well, indeed, as by the course pursued by the right hon. Baronet who had opened the present discussion. The question, after all, lay in a short compass—was or was not the embargo legal and justifiable? If the right hon. Baronet were correct in his premises, there could be no doubt that it was unconstitutional and unjustifiable; but he denied the validity of the right hon. Baronet's premises. In doing so he would carefully avoid founding his objections on mere technical points of difference of interpretation of statute law and of the provisions of Magna Charta, referred to so dexterously by the right hon. Baronet. He would confine himself to the abstract principle of the justice of the embargo, confident that at the proper time Parliament would be put in possession of such facts as would show that it was actually unavoidable, with a view to preserving the peace of Europe. The abstract principle then was involved in the question, was it a constitutional exercise of the royal prerogative to enforce an embargo of this nature? No hon. Member could deny that it was a part of the exercise of the prerogative of the Crown to declare war or peace. Then he would contend, that the circumstances which justified this exercise of the prerogative applied, a fortiori, to acts of mitigated hostility. War was at best an evil: the Crown declared war because by doing so it hoped to prevent a greater evil, and preserve public order. That was the only justifiable object it could have in the exercise of such a prerogative. If, therefore, by a minor act of severity it 804 could avoid a great evil to the national honour and interests, and prevent the calamities of war, it was bound to adopt that policy of mitigated hostility; for surely they would not contend that the Crown might declare war, unqualified and fierce war, when doing so would be a choice of a lesser evil, and yet had no power to commit some less harsh act, which also would avert serious national calamities. Then so far from these acts of mitigated severity being, as the right hon. Baronet had asserted, the relic and type of a barbarous age, its very mildness proved it could only obtain in a highly civilized era. The right hon. Baronet had quoted the case of the Act of Indemnity of 1766, for laying an embargo on the export of corn from the port of London, as a proof that Lord Chatham and the then Parliament conceived that it did not belong to the Crown to impose such an embargo in the mere exercise of its own prerogative. But how did that case apply to the present? At that time corn was so scarce and high-priced here, that the Mayor of London and others urged the expediency of stopping some that was just about to leave the port of London for a foreign market, so that the whole case was one of our domestic relations, involving no consideration whatever of hostility direct, indirect, positive, or contingent with a foreign state, and turning wholly upon the violation or nonviolation of specific Acts of Parliament, which regulated the price at which corn might be exported. It was plain, that there did not exist the remotest analogy between the two cases. For what were the facts of the present embargo? Briefly these:—A short time previous to the accession of the present Administration a de facto separation took place between Holland and Belgium, which England, concurrently with the other powers of Europe, admitted to be valid. In 1831, a treaty was concluded between the Five Great Powers, in which the terms of that separation were specified. That treaty was laid before the last Parliament, and as it had taken no exception to it, but, on the contrary, had given it what, in some circumstances, was the strongest proof of approbation—a tacit acquiescence—he was bound to assume that it had met with its approbation. The effect of that treaty was the preservation of the peace of Europe, by specifying the conditions of place, territory, &c., on which the de facto, but, as 805 it might be perhaps only temporary, separation of Holland and Belgium should be permanent. This treaty was ratified by England, France, Russia, Austria, and Prussia. Founded on it, and entirely auxiliary to it, another treaty was concluded—that of the 20th of October last, to which, it was true, only France and England were immediate parties, but in which, as it merely went to carry into effect the provisions of the treaty of 1831, the other three powers were not in the least opposed. In point of fact, neither Austria, Russia, nor Prussia, was hostile to the second treaty; but, not being disposed to take an active part in the settlement of the question, they chose to retire, making no protest (it must be observed) against the express determination of France and England to enforce the fulfilment of the terms of the treaty of 1831. The first stipulation of the second treaty between the two Powers was a notice to the two separating Powers—namely, Holland and Belgium, to withdraw their troops within their own territories, according to the treaty of 1831, by a certain specified day, explicitly telling them, that on their refusal to do so by that particular day, France would march a force by land, and England would furnish a conjoint naval armament, for the purpose of carrying the terms of both treaties into effect. If, then, as was manifest upon the face of the whole transaction, the object of the treaties to which the Five Great Powers were parties, was to render the division between Holland and Belgium perpetual, and perpetual because it was essential to the peace and interests of Europe that it should be so, he would ask any hon. Gentleman present, whether it was or was not justifiable that either, or all of the great powers should, by war, or a demonstration of war, if necessary, give full and final effect to these treaties? As to the proceeding which this country adopted when France, in consequence of the obstinacy of the king of Holland, marched a force for the purpose of reducing Antwerp, nothing could be less justified by the facts, or less in consonance with the law of nations, than the views taken of that subject by the right hon. Gentleman on the other side. It could not be contended, with any show of reason, that France did otherwise than the occasion required, in marching against Antwerp, not for the purpose of occupying it for its own advantage, but for the purpose of producing that evacuation 806 which the treaties between the several contracting nations required. If those treaties were justifiable, as he believed no one would contend they were not, he wished to learn upon what grounds it could be maintained, that the Crown had unduly exercised its prerogative by the course of mitigated hostility which it had pursued? It would be found that the Order in Council for the embargo was not issued until after the period prescribed in the treaty of November last had expired. The whole case, then, resolved itself into this question—whether, under all the circumstances, the king of Holland having refused to evacuate the Belgian territory—Dutch troops being still in possession of the citadel of Antwerp, and the period stipulated in the last treaty between France and England having elapsed—there was no probability that war might not ensue? Would any hon. Gentleman who looked fairly and dispassionately at all the circumstances of the case, say that embargo, which had been in force since November last, was laid on without a probability or a fair expectancy of war? If there were a probability, or a fair expectancy of war, then the conduct of Ministers was perfectly justifiable. It was vain and idle to compare the embargo to one dictated by considerations of a merely domestic nature; or not connected with a reasonable expectation of war. After the arguments which had been advanced by the hon. and learned member for the Tower Hamlets, unless the House was prepared to say that the general position laid down by Lord Stowell was a position not well founded in the law of nations—the consequence must be, that the circumstances of the present case must be considered as not only coming within his doctrine, but as being more than sufficient (according to the views of that learned individual) to justify an embargo. England, he conceived, was doubly bound to act as she had done; she was bound by the treaty of 1831, and that of October, 1832, and could not shrink from her share in the execution of both without dishonour. This statement involved the principle to which he had said he would then confine himself. At the proper time he should be prepared to show, that the facts of the case fully justified the embargo, whether considered in reference to statute law or the law of nations.
§ Mr. Pollock
confessed, that he was by 807 no means satisfied with the arguments and observations which he had heard from his hon. and learned friend opposite; but he should, for the present, suppress his observations on his hon. and learned friend's speech, and content himself with referring the House to a few facts and authorities. On all former occasions, when embargoes had been laid upon the property of foreign Powers, ample reasons had been afforded for so doing; but, in the present instance, no one single reason had been assigned. His Majesty's Ministers had not deigned to explain any of the grounds—if grounds they had—for this extraordinary and long-continued embargo upon the property of a nation with which we professed to be at peace. If the noble Lord, the Foreign Secretary, had said, that the measure was necessary, and that he would undertake to justify it as soon as circumstances would permit him to lay the whole of the facts before the House, he should be satisfied, and would abstain from saying anything upon the subject at the present period. But as the noble Lord had not availed himself of the opportunity which the right hon. Baronet had afforded him of making such a statement, those who in the absence of all explanation upon the subject, entertained some doubt as to the justice of the embargo, would no longer be justified in remaining silent. He would call the attention of the House to the Order in Council for the embargo in 1766, in order to show, that in cases of embargo, the House of Commons ought to be consulted at the earliest possible period, for the purpose of obtaining its assent to a proceeding in which it must inevitably happen that so many interests would always be concerned. The Order in Council of 1766, was dated in September of that year, and was to expire on the 14th of November. Parliament had separated on the 6th of June, but was called together on the 11th of November, for the express purpose of considering the order for the embargo; which, as he had stated, was to expire on the 14th of November. So deeply were the Ministers of the day impressed with the responsibility of the step which they had taken in imposing an embargo, even under circumstances of extraordinary necessity, that they felt it incumbent upon them to take the sense of Parliament upon it; and accordingly, the two Houses were re-assembled on the 11th of November. The 808 result of this step was, an immediate Address from this House, as well as from the House of Lords, thanking his Majesty for the proclamation which he had put forth; and the embargo, instead of being suffered to expire on the 14th of November, was extended and continued. Why, in the present instance, was not the House asked to give its concurrence in a similar manner? Why had all this mysterious silence been observed? or why, having been observed, had not the noble Lord stated that it was necessary; and that satisfactory reasons for the embargo should be afforded as soon as, consistently with his duty, he might feel himself at liberty to lay them before the House? In 1801, also, there was an embargo laid upon the vessels of Russia, Sweden, and Denmark, hostile measures having previously been taken by Russia; and, as it was stated in the preamble of the Order in Council, "against the just rights of his Majesty the King, and his dominions, by the Courts of Denmark and Sweden." In that instance, as in the former, Parliament was consulted, and a course pursued, the direct reverse of that which it was thought expedient to pursue in reference to the affairs of Holland and Belgium. He was perfectly aware that there might be reasons of State which would render it extremely inexpedient to lay before the public the grounds upon which the negotiations now under consideration had been conducted; but if so, he would take the liberty of observing, that there ought not to be a moment lost in making the necessary communications on the subject to Parliament. The case which occurred in the year 1794, when the 34th George 3rd, cap. 34, was passed, to indemnify those who had passed an Order in Council to prevent the exportation of pearl-ash, it being suspected that salt-petre to be used in the manufacture of gunpowder was sent abroad under that name, recognized principles opposed in the strongest manner to the course which his Majesty's Government had thought it proper to adopt in the course of these negotiations. The hon. and learned member for the Tower Hamlets had referred to the opinions expressed by Lord Stowell on the subject of embargoes, for the purpose of showing that the embargo under the consideration of the House had been laid on consistently with the recognized principles of international law. But if his Majesty's Govern- 809 ment would read these passages, they would find, he was quite sure, that Sir William Scott never contemplated that an embargo could be legally laid on without some act of direct hostility on the part of the nation against which it was directed. His hon. and learned friend the Attorney General had made a statement, which in his opinion, clearly disproved the conclusion to which he came. If he recollected rightly, the facts were these, that when the present Ministers came into office. they found the two countries of Holland and Belgium separated de facto—he would say nothing about the declaration of a certain noble Lord, on another and more recent occasion, that they were not really separated—he would for the purpose of the argument, assume that they were de facto separated. The five Powers then interfered to form a treaty, which required that Antwerp should be given up to Belgium. He begged to ask his hon. and learned friend, however, whether there was any claim in that treaty that Holland should evacuate Antwerp until she had exchanged ratifications; Holland had not exchanged ratifications; and, consequently Holland was not bound to evacuate Antwerp. What then took place? Why, two out of the five Powers entered into a separate treaty to say how the treaty entered into by the five Powers ought to be construed, and how it ought to be acted upon. What were the other three Powers doing? Upon what just principles—according to what law of nations—was it that they carried their interference to such an extent as for the one to fit out a fleet, the other an army, to attack the garrison of Antwerp, and forcibly take possession of the ships of Holland, against whom no war had been declared, and from whom no act of hostility was to be apprehended? So far from there being anything like a justification of it, it was a case which called forth very great suspicion. He would ask, did his learned friend mean to say, that Great Britain had acted on just principles, and in conformity with the law of nations, towards an ancient and faithful ally? He would take up the language of the learned member for the Tower Hamlets, who exclaimed, was it wise, politic, or advantageous, to stir this question, and inquire how was it that he did not ask if this measure was just and right according to the principles of the law of nations? It 810 might be wise in the estimation of some-it might be considered politic by those who had a selfish policy to pursue—and it might be thought advantageous according to the notions of others, but he differed entirely from such opinions, and he trusted that he and other hon. Members would never cease to exclaim against the impolicy and injustice of forsaking an old ally. He was surprised that his hon. and learned friend, the member for the Tower Hamlets, should support this measure on the ground of temporary policy; but he trusted this House would not cease to exclaim against a measure so unjust, and he would say, so impolitic, as that of inflicting such grievous injury on one of our best and most ancient allies. He could not but consider it a piece of injustice to endeavour to force our mediation on those two Powers, when one of them neither wished for our interference, nor ever consented to become a party to it. He hoped the noble Lord, the Secretary for Foreign Affairs, would at least afford the House some reason for this embargo. If he did, he should submit; but if he did not, he could not but consider the measure as one unjust in itself, injurious to our ancient allies, and prejudicial even to this country.
§ The Solicitor General
I cannot but very much lament the tone of declamation with which my hon. and learned friend has concluded his Speech. It is from such appeals that the Dutch king has been induced to resist the equitable arrangement recommended to him by the Five Powers to whom his differences with Belgium were submitted. The motives of the hon. Gentlemen opposite are, no doubt, pure and patriotic, and they have no intention of embarrassing the foreign policy of his Majesty's Ministers; but I must be allowed to express my perfect conviction, that if it had not been for the encouragement held out to Holland in the British Parliament to resist the British Government, the Belgic question would long ago have been settled; no danger of war would have arisen, and the embargo complained of never would have been imposed. Although I was not in office when this measure was resorted to, I should be quite willing to share the responsibility of advising it; for, after deeply considering the subject, I can entertain no doubt of its legality. My hon. and learned friend, despairing of succeeding on the merits, has resorted to 811 a point of form, and put in what in Westminster Hall we call a special demurrer,—assigning for cause, that the Order in Council is bad for being without a preamble. But he has cited no authority upon the subject, and the precedents seem rather to be against him. The Order in Council for the Danish embargo, and others in the collection which I hold in my hand, merely authorize the act to be done, the Government reserving to itself to allege the reasons for the embargo whenever its justice or expediency may be questioned. My hon. and learned friend, the member for Huntingdon, has complained that my hon. and learned friend, the Attorney General, did not vindicate the policy of this embargo; but he forgot that the right hon. Baronet who began the discussion, expressed a strong desire that the policy of the measure should be reserved for future consideration, and wished to have the question argued as if he were in a Court of Law. The hon. member for Essex, with the spirit of a Hampden, regretted that he could not have the question brought to a public trial, and only substituted his speech because unfortunately he has no ship detained under the embargo. I will therefore likewise confine myself to the legality of the measure, leaving its policy to be justified, as I believe it will speedily be, by its pressure compelling the Dutch king to listen to the dictates of moderation and reason. The question, then, is, whether our King has not the power, during negotiations with a foreign state which may terminate in war, to impose an embargo upon the commerce between this country and that foreign state. I maintain that this is clearly within the prerogative of the Crown. The King may declare war, and he may limit the interruption of intercourse to any point short of war. When the relations of amity are disturbed between states, there are three marked stages by which their situation is distinguished—first, the imposition of an embargo;—secondly, the granting of reprisals;—and lastly, the declaration of flagrant war. The right hon. Baronet, both in his reasonings and quotations, has confounded two things which are quite distinct—reprisals, and an embargo. Reprisals are for a wrong actually suffered, and the property taken is immediately applied by the captor in satisfaction of the wrong. The earliest instance of reprisals is said to be found in the eleventh book of the Iliad 812 where Nestor relates a seizure he made of certain cattle from the Epeians by reason of a refusal to pay debts due from that people—when he appropriated 300 head to himself, and distributed the rest among the other Pylians who had been injured. Grotius, and the other jurists who treat upon this subject, say that the goods taken by way of reprisals are to be immediately sold for the benefit of the captors, who are only to make restitution if there be any surplus. But an embargo is a proceeding quia timet, and of a totally different nature. An embargo is not for a wrong suffered; and the goods do not become the property of the detaining party. By this and every Order in Council for an embargo, express directions are given, that the ships and cargoes shall be kept with the greatest care to abide the event. If the negotiation ends in peace, they are restored; if in war, they are condemned as prize. The right hon. Baronet quoted a passage from Vattel in which it is justly laid down by that distinguished writer, that reprisals cannot be granted by one nation against another for an injury done to strangers. The example referred to is, that of England having in 1662 granted reprisals against the United Provinces in favour of the knights of Malta. The states of Holland asserted with good reason that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern. What was the language of the Pensionary De Witt upon that occasion?" It is evident that no sovereign can grant or make reprisals except for the defence or indemnification of his own subjects whom he is, in the sight of God, bound to protect." The Act of Charles 2nd was clearly contrary to the law of nations; for neither he nor his people had or pretended to have any interest in the dispute between the knights of Malta and the government of the Netherlands. But what authority, English or foreign, has the right hon. Baronet brought forward to show that where there is a dispute between England and a foreign country, in which English objects are concerned, an embargo may not be imposed? How detrimental to the public if such a prerogative did not exist! When you have in your possession ships of great value belonging to a state with whom you may almost immediately be at war, would it be right that they should be sent to add to 813 the resources to be employed against you? And, under such circumstances, ought there not to be a power to prevent English ships from sailing to ports where they are almost sure to be captured? Indeed the right hon. Baronet did not absolutely deny the power of imposing embargoes. What use then was there in citing Magna Charta, and the statutes, and the pamphlets, and the reviews, of which such a parade was made, to show que la mer soit ouverte, and that the Crown cannot dispense with an Act of Parliament. In all the passages quoted by the right hon. Baronet, the belligerent powers of the Crown are impliedly excepted. These existed for the public good from the origin of the monarchy, and have never been limited, nor till now called in question. Lord Chatham's embargo of 1766, I allow was illegal, and I allow what has been stated by ray hon. and learned friend, the member for Huntingdon, that a prohibition of the exportation of pearl ashes or any other commodity, the exportation of which is permitted by law merely, would be illegal. The distinction is to be made between municipal and international embargoes. Lord Chatham might be justified on the score of state necessity for what he did; but he required an indemnity. Where an embargo is imposed with a view to pending negotiations with a foreign state, the Ministers of the Crown may be answerable in Parliament for the advice they have given; but the legality of the act cannot be controverted in a Court of Justice. The prerogative to declare war necessarily involves the power to constitute an intermediate state between peace and open hostilities; and if your object may be gained by that intermediate state, open hostilities cannot properly be resorted to. All jurists agree in this position, that then only can you justifiably proclaim war, when you have in vain tried every other expedient to obtain redress. It is admitted that an embargo may be lawful where there is a great probability of war, and where it is short. Can its legality depend upon the greater or less degree of probability of war; and after what duration is it to be determined by a Judge to be illegal? Lord Stowell says: "It would be a high misprision for the Court of Admiralty to re-deliver to the foreign owner property which the Crown had directed to be seized and detained for further orders. Its functions are suspended, and if any injustice is done, that is au account to be 814 settled between the states." In the case of Touteng v. Hubbard, which occurred in the time of Lord Alvanley, the Court of Common Pleas unanimously gave effect to the Swedish embargo after it had lasted above six months. If the Dutch embargo has become illegal because it has lasted three months, what shall we say of the Tuscan embargo which was enforced without dispute between two and three years? In every case, the limit to the embargo must be the issue of the negotiation; and then only is its character determined. Finis operis nomen imponit. War makes it by relation a hostile seizure; peace only a friendly pledge. Till then it is an equivocal act, subject to two interpretations;—the property seized can neither be restored nor condemned; and no lawyer will deny that the King's Proclamation will justify the seizure and detention. If a Court could inquire, whether when this embargo was imposed, there was a likelihood of the negotiation with the king of Holland terminating in war, would impartial men hesitate in coming to that conclusion? I need look no further than the Convention between France and England in November, 1832, whereby it was stipulated, that if the Citadel of Antwerp should not be delivered up by a certain day, the Dutch garrison was to be attacked by a French army, and the ports of Holland were to be blockaded by a United French and English fleet. The Gentlemen opposite are exceedingly fond of asserting, that we are at war with Holland, and are rather disposed to ridicule the position that peace continues. With what face, then, can they contend that there was no possibility of an event which they say has actually happened? I say we are not at war with Holland, notwithstanding the Conservative speeches which have such a warlike tendency; but I say there was a reasonable danger of war when the embargo was imposed, and that the Government was fully justified in trying the pressure of that measure, instead of at once plunging into open hostilities.
§ Sir James Scarlett
did not fear contradiction, when he said, that his right hon. friend, the member for Tamworth, had argued this question with a degree of perspicuity and force, which would have done honour to any Member whatever of the legal profession, at the same time, that his speech was, in all other respects, worthy of his own high parliamentary reputation. 815 He must say, that he did not think his right hon. friend had been fairly met by hon. Gentlemen opposite. His right hon. friend assumed, as the basis of his argument, that we were not at war, and did not contemplate war; in that assumption he might be wrong, but he had founded it on two grounds. With regard to the first, he would only say, that he did not think the speech of the noble Lord opposite, on the hustings, was a good criterion by which to judge of his deliberate opinions. The second ground was that passage in his Majesty's Speech, in which it was said that negotiations are pending, and that he hopes peace will not be interrupted. The right hon. member for Tamworth had contended that an embargo was not lawful, except in certain cases, two or three of which he would by and by refer to. The hon. and learned member for the Tower Hamlets denied the fact. If that were so, there was an end of the discussion. If Ministers took this step in expectation of war, they no doubt exercised the natural and proper prerogative of the Crown. The question, however, was, whether the Government had a right, for the purpose of forcing a Power in amity with them—their own ally—to do a certain act? It desired to lay an embargo upon the vessels belonging to that Power, without any intention of going to war with her. Had the Government then a right by a little gentle violence, to interfere and compel its own ally to enter into an engagement with another Power, which was disagreeable to that ally? It might, by possibility, result from the course pursued; but one could not help thinking that if France and England were determined not to go to war—if France would fit out no armament, and England no fleet——the peace of Europe could not be endangered. He certainly should have thought that nothing more was necessary for the preservation of the peace of Europe, than for France and England to say, "We are fully determined not to go to war." The right hon. Baronet quoted from Vattel a position which he had not heard controverted—namely, that a nation has no right, when two Powers, both in amity with it are at war with each other, to interfere with hostile measures on behalf of the one against the other. The nation could only interfere in the spirit of alliance. Holland and Belgium were at variance with each other. No one could 816 deny, that if England chose to take a decided part with one against the other, and so to depart from her alliance with that other, she had a legal right to do so; but if she did not intend to make war, but only to act the part of a friend," then," said the right hon. Baronet, "I think you are not entitled to have recourse to hostile measures." The hon. and learned member for the Tower Hamlets admitted the authority of Vattel upon this point; but he said, he would quote another authority against that argument. He admitted, that Great Britain was the ally of Holland and Belgium; and that we had no right to step in and compel the one to do what the other might have required. If this were so, what better right to interfere could England have from the circumstance of France agreeing with her. His hon. and learned friend said; "You made a treaty in October, 1832, by which France and England agreed that England should impose this embargo." That was a most extraordinary argument. One might as well say, that if one man wanted to knock down another on the King's highway, with the assistance of another man, it would be unlawful; but, if a third should step up, and offer to attack him, that then it would become a lawful act immediately. It appeared to him, that the agreement between France and England was worth nothing. If France, on this emergency, interfered for the purpose of strengthening her ministers, or protecting her government she had no right to interfere; and England had no greater right than France. It was not a proper foundation for the treaty, that two of the greatest Powers in Europe leagued together against a weak one, though independent in spirit, for the purpose of compelling her, without a quarrel, to act as they thought proper. He had always understood that the prerogative of the Crown would justify laying on an embargo, in all cases where hostilities were contemplated, and in some other cases, where the King, imposing the embargo, was actually at war with another nation. If one nation at war with another, have ships lying in the ports of that other, it had a right, no doubt, to lay an embargo on them. Supposing a nation to be engaged in war, and having reason to apprehend that the ships of a third power would proceed to the assistance of the enemy, it might, without doubt, lay an embargo on them. In 817 the present case, however, no hostilities were contemplated. The hon. and learned Attorney General said, that an embargo was for the purpose of enforcing a right. What right then had Great Britain been denied by Holland, or what injury or insult had she sustained from that country? If there were any probability that Holland had some secret design against England—if there were reason to fear that she would come upon us unawares, or that the Dutch ships would suddenly make their appearance in the Thames (as they did in the time of Charles 2nd), then England would certainly have a right to lay an embargo upon her property. He assumed, however, that the Ministers entertained no such fears. Had Holland shown any hostile feeling? These were points which had not been cleared up; and until they were, he must remain of opinion that that embargo could not have been laid in expectation of war; unless, indeed, a general war in Europe was to be lighted up by that very act. The question had been argued, on the other side, as if it were a mere question of embargo. It was not, however, confined to that; for Dutch ships were taken at sea and brought into port. Did that come within the law of embargo? He should imagine not the word embargo meant preventing foreign vessels leaving our ports. If this proceeding were not war, it was so like it that he could not find out the distinction. It appeared to him a direct act of hostility. In modern times, war had been frequently made without any previous declaration, though in earlier times, a declaration of war always preceded the commencement of hostilities. If seizing the vessels of a foreign power, and bringing them into British ports, be not war, what was it? Piracy and robbery; and if it had been done by Tripoli or Algiers, it would have been at once called so. The Government had no right to bring those ships here, without previously declaring war; and, he repeated, that if what it had done be not an act of war, it was an act of piracy. The Algerines seized upon undefended merchant vessels, and carried them to their ports. He would not enter into the question of the policy of the measure; for he concurred with his right hon. friend in wishing to avoid it, though, certainly, his hon. and learned friend, the member for the Tower Hamlets, embarked upon that part of the question, notwithstanding it had been so 818 studiously avoided by his right hon. friend. As to the question of eivil embargoes, his hon. and learned friend had himself completely disposed of it; for he said, in common with all lawyers, that they could not be sustained. What answer had been made to the provisions cited from Magna Charta? Lord Coke said, that the prerogative of the Crown could not be touched, except by Parliament—that Magna Charta was the foundation of all our liberties; and he expressly declared that the King could have no prerogative which was opposed to it. It was sometimes said in Westminster Hall, that one Judge had more weight than the other three, although they had all given judgment; and he had frequently found, in other places, that, on questions of law, the minority had entertained the most correct opinions.
§ Viscount Palmerston
had not presented himself to the notice of the House at an earlier period of this debate, because he had been desirous to hear, before he addressed it, the arguments to be adduced, on the other side, in support of the proposition endeavoured to be established by the right hon. Baronet, the member for Tamworth. It had been a source of satisfaction to him to listen to the able and convincing legal statements of his hon. and learned friends who had preceded him—a circumstance which would render it almost superfluous for him to endeavour to add anything to the legal proof of the case, which they had so convincingly established—namely, "that the embargo was not only consistent with the municipal law of this country, but, also, with the general law of nations." He must say, that he never heard an argument more completely overset than that by which it had been attempted to be established that this embargo was either inconsistent with the law of the land, or was, as the hon. and learned Gentleman who had just sat down had endeavoured to represent it, an act of robbery and piracy with reference to the law of nations. With respect to municipal law, everything which had been adduced on the other side, had fallen to the ground. The right hon. Baronet contended that there was an analogy between this embargo and that of 1766; and he inferred that the opinions given against the legality of that embargo clearly proved that the embargo lately imposed upon the shipping of Holland was equally illegal and invalid. The right hon. Baronet 819 dissented from this view; but if it were not for the sake of establishing this application, why all those quotations? or why refer to the precedent of 1766 at all? The difference was simply this. That measure applied only to the laws of this country, and had not in contemplation anything connected with our foreign relations; the present could stand for justification only on the question of war. That rested on the question—whether the King had, or had not the power, in his own dominions, to suspend for a limited time, and for certain purposes, the laws of the realm. The right hon. Baronet contended that the Government had no right to lay an embargo on foreign vessels, except for injuries done to our own subjects, or in contemplation of acts of hostility. He said, that it was not justifiable to lay an embargo in favour of third parties. No such embargo had been laid. This embargo was laid, strictly in furtherance of our own views, and in Maintenance of our own engagements. Would any hon. Member tell him, that the faithful performance of an engagement entered into by the King of England, by a treaty signed and ratified by him, was not a duty connected with British interests, which he was morally and legally bound to fulfil by every means in his power? The fulfilment of an engagement by the Crown was a measure for which the Ministers were responsible; and if the King was at liberty to have recourse to powers to fulfil an engagement, which, without them, he was prevented from completing, he had a right to resort to the intermediate course of an embargo; and, therefore, it was quite in compliance with the law of nations that this embargo was imposed. It was imposed in furtherance of the execution of the engagements contracted by this country. The hon. and learned Gentleman said: "What engagement? It was true that France and England signed a Convention by which they agreed to lay on this embargo." That was not the ground on which he relied. That Convention was signed for the purpose of settling the manner in which England and France should execute certain antecedent engagements: those antecedent engagements were contained in the Treaty of the 15th of November, 1831, which had been laid before Parliament nearly twelve months, and which treaty bore upon its face the engagements government was seeking to fulfil. That treaty was not the subject of 820 any parliamentary motion during the whole of last Session. The hon. Baronet, the member for Bristol, certainly gave notices, which referred, in a manner, to the subject; he deferred his motion, however, from day to day, though without in the smallest degree meriting censure, and never brought the subject before the House. No Member had yet stood up in his place to say, that the Crown, when it concluded that treaty, had entered into improper engagements. He did not wish the House to take it upon his bare assertion, that the Government had sufficient grounds for the course which it had pursued, whether as it respected national or municipal law, or as it regarded expediency. He was prepared to prove, that it was equally consistent with the one and the other; and he was convinced, that when hon. Members had once read the papers which were now lying on the Table of the House, and the other papers with which they would be speedily followed, they would concur with him, that the course which had been pursued by his Majesty's Ministers was not only legal, but prudent. The course pursued by the hon. Baronet, in his argument upon the embargo, was by no means fair. It was proper to take the whole subject into consideration, and not to discuss insulated particulars. The object of the hon. Baronet appeared to have been to confound two things which ought to be considered perfectly distinct, the imposing of an embargo on the vessels of a Power with whom we were at peace, and the issuing of letters of marque and reprisals against the vessels of a nation with whom war was about to be declared. The noble Lord here quoted a passage from Vattel, to show, that in order to obtain justice, it was lawful to detain the vessels of the enemy in our ports; but that till these vessels were condemned and confiscated, the reprisals could not be considered complete. In this case the reprisals were not complete, for no confiscation or condemnation had taken place subsequent to the embargo. Those hon. Members, therefore, who argued that this was an act of robbery, of piracy—a commencement of hostilities—proceeded in direct opposition to the opinion of Vattel. He would say, as he had said before, that they were not at war with Holland; he would abide by the declaration which he had made elsewhere, that Great Britain was not at war with Hol- 821 land, nor with any other country on the face of the earth. The existence of the embargo, in fact, was incompatible with a state of war. The law of nations enabled a belligerent Power to take and confiscate the vessels and property of the enemy, wherever they might find them. Now, in this case, no such confiscation had taken place; and therefore, he contended, that the very existence of the embargo—the imposing of which Members spoke of as the first act of hostilities—was, in fact, the clearest proof of the non-existence of war. Another proof, if further proof was needed, of this country being at peace with Holland was, that we had at the present moment a diplomatic representative at the Hague, and the Dutch government had a diplomatic representative in London. This was a state of things very unusual when hostilities were raging between two nations. It had been said, that the Government ought not to lay on an embargo unless hostilities were contemplated; and it had been admitted that if it could be shown that hostilities were likely to arise out of the transactions which led to the imposition of the embargo, the whole of the arguments which had been used against the Government on this head would fall to the ground. He was ready to state, that England was not at war with Holland, and he trusted that the peace at present existing between the two nations would not be interrupted. But when the embargo was imposed it was not beyond the reach of probability that hostilities might occur. [Sir Robert Feel: Yes; in consequence of the embargo.] It was not in consequence of the embargo. He did not mean a war of retaliation on the part of Holland, but he intended to say, that those differences which led to the imposition of the embargo might have rendered a recourse to hostilities necessary. He admitted and stated that we were not—that we had not been—at war with Holland; but he never either stated, or admitted, that war, when the embargo was laid on, was out of the range of possibility. An hon. and learned Member, on the opposite side, had been so obliging as to read a judgment of Sir William Scott, which, in fact, proved the position for which he was contending more effectually than anything which could be urged. That decision proved, that an embargo might, consistently with the law of nations, be imposed even when hostilities were not at all in contemplation. How 822 the hon. Member who read that judgment could imagine that it supported his own argument, he (Viscount Palmerston) was at a loss to understand. It might be asserted, however, that though we had a right, in such a case, to detain vessels in our ports, we had no right to seize them on the high seas. But this assertion was not borne out by the authorities on international law; and it was not consistent with the practice of this country in such cases. In the embargo on Turkish ships in 1807; in that upon Danish vessels, in the same year; in the embargo upon Russian vessels, in 1807; and in that upon American vessels, in 1812—in every one of these cases not only were vessels in port detained, but orders were given to seize and to bring into port all such vessels belonging to these respective nations which should be met with on the high seas by our cruizers. In those cases there was no war; indeed an embargo was in itself a proof of the existence of peace. When a nation declared war, it did not lay an embargo on the ships of its enemy, but it issued letters of marque and reprisal.
§ Viscount Palmerston
I beg pardon. Hostilities had not taken place at the time of the embargo. It is true that hostilities followed. The United States had declared war; but this country had not declared war at the time of the embargo.
§ Sir Robert Peel
The embargo placed on American ships was imposed after a declaration of war on her part.
§ Viscount Palmerston
admitted, that the right hon. Baronet was correct, but to constitute a state of war, the consent of two parties was necessary. Though America declared war previous to the embargo, England did not declare war for many months after; and in the mean time the English Government endeavoured to negociate with the American States. This was an evidence, which the hon. Gentlemen opposite would perhaps admit, that there was nothing incompatible in the co-existence of negotiations and an embargo. If war had been declared, what possible use could there have been for an embargo, when we had it in our power to seize and confiscate immediately the vessels and property of the enemy wherever we might find them. Letters of marque and reprisals would, in that case, have been the proper course to be 823 pursued. But it would have been perfectly ridiculous to impose an embargo upon vessels, when we had the power of capturing them wherever we might find them. The United States had, indeed, declared war against us previously to the embargo; but we did not declare war against them till several months after. We chose rather to have recourse to the more lenient expedient in the first place, in order to give the government of that country an opportunity of retracting the step which it had taken, by renewing the friendly relations with this country. It was true that the state of things which led to the embargo in this case, merged in war; but it showed, at least, that there was nothing in our embargo incompatible with the continuance of negotiations between the parties. War was, in fact, to be avoided by all possible means; and it was, therefore, the duty of the Government to try whether, by suspending the fall of the sword for a time, they might not avert so dreadful a calamity. They had, therefore, proceeded in the first place, to detain the property of the Dutch; they had resolved to try the minor measure before they had recourse to the more severe. It appeared, that in the opinion of the hon. and learned Gentlemen opposite, they ought to have proceeded immediately to declare war. The right hon. Baronet opposite had said: if there is a cause of quarrel, go to war. [Sir Robert Peel denied this.] The words of the right hon. Baronet implied as much. What, however, was the opinion of Vattel on this head, expressed in the very chapter quoted by the right hon. Baronet opposite? He said that the law of humanity directed the postponement to the last moment of the fatal measure of war. He then went on to state, that very different opinions were entertained with respect to this matter, and that if a Prince having a dispute with another power, endeavoured to bring him to a sense of justice by the seizure of his ships and the detention of his property, there were certain men who would cry out that this was robbery; but if that Prince had at once declared war, they would not have said a word against him but rather praised him for doing so. Strange perversion of reason and of every sound principle! His Majesty's Ministers had acted upon this principle; and for doing so they were accused of robbery and piracy. Would they have satisfied the opposite 824 side if they had immediately declared war? He did not believe, certainly, that the right hon. Gentlemen opposite would have approved of their going to war in favour of Belgium; but he certainly did believe that they would have had no objection to this country's going to war to prevent the separation of Belgium from Holland—to maintain a Union which was hateful to the Belgians, and not more agreeable to the Dutch. If Ministers had pursued that course, he did not know what would have been the opinion of the right hon. Gentlemen; but he was sure that Ministers would have deserved the reprobation of that House and of the country. Thus, in every point of view, whether the question were considered as one of municipal law, or of international law, it was perfectly clear that the embargo was just. The measures which had been taken were in perfect concurrence-with the other Powers. The five Powers had commenced their interference in the affairs of Belgium as arbitrators, and they entered on that office before the period when his Majesty's present Ministers came into office. The first act of these arbitrators was to say—"You shall fight no more. The war must be suspended for an indefinite period." The parties objected to the suspension of hostilities for an indefinite period. What was the answer of the five Powers? "We are ready to enforce the armistice with our whole power, and the first act of hostility committed by either of you against one another shall be regarded as an act of hostility against us." [Sir Robert Peel: That was a mediation.] It was a mediation, or it was an act of arbitration. If it were not, there was no dispute about the subject, but with regard to words. After finding, however, that the Belgians declared they would never again bear allegiance to a Prince of the House of Nassau, the five Powers no longer persevered in their course of arbitration; but they endeavoured to persuade the two parties to arrange their differences amicably. They then took the character of mediators; and that course they had pursued, perhaps too long. In the opinion of some hon. Members, at least, they had pursued it too long. He had been ridiculed on all hands, and held up to the derision of that House and of the country; but the country was too enlightened to ridicule him for endeavouring to preserve peace by protocoling, as it had been called. The hon. 825 member for Essex had talked contemptuously of his hammering out protocols; he found fault with the Ministers' adherence to pacific counsels; and he was no less displeased, it appeared, with the departure from them in the case of the attack upon Antwerp. Whether they attempted to preserve the peace of Europe, so much endangered by the quarrel of the Dutch and Belgians—whether they endeavoured to preserve peace by persuasion or by force, the course which they thought it advisable to pursue was equally disagreeable to those hon. Gentlemen. He trusted, however, that the House and the people would better appreciate their endeavours to prevent a war in Europe, and a conflict of political principles which would inevitably have arisen if such a war had taken place. He expressed his sorrow once more, that neither their peaceful endeavours to attain these objects, nor their endeavours in the way of coercion, had had the good fortune to hit the fancy of the right hon. Gentleman. They were accused of continuing the system of protocols too long; but, for his own part, he thought that protocols were better, and less expensive than Extraordinary Gazettes; and the effusion of ink was much less to be regretted than the effusion of blood. Having tried these means, the five Powers felt it to be their duty to draw out the terms of an arrangement, founded on the due consideration of the claims of the two parties; and the result was, the Treaty signed in October, 1831. They then told the parties that it was their determination to enforce the terms proposed. They then took the character of arbitrators again; and Belgium having accepted the terms, they then took that of guarantees. Holland, however, believing from every turn of affairs, that she would obtain better terms, refused to agree to the proposals, and she had ever since refused to accede to that or any other arrangement. The Five Powers, he repeated first commenced as arbitrators; they then became mediators between the contending parties. They afterwards resumed the character of arbitrators; and they were now to be considered guarantees of the treaty which Belgium had accepted. This, the noble Lord observed, was the character in which the Five Powers now stood with respect to Belgium and Holland. There had been no difference of opinion among the Five Powers respecting the embargo; and Belgium had a right 826 to expect from them that they would take some measures, in order that the treaty might be fulfilled. The hon. member for Essex (Mr. Baring) complained of our conduct to so faithful an ally of this country as Holland. He did not wish to disparage Holland; but had Holland acted the part of a faithful ally to this country in the time of the American war? Had it done so in the time of the French war? Or since the peace of 1815, had it displayed any of that friendly feeling in its colonial and commercial regulations which might have been expected, considering the sacrifices which had been made by this country on her account? The conduct of the Ministry had been characterised as imbecile, and as diplomatic foolery. The member for Essex might probably recollect the declaration which he had made on the occasion of the French troops proceeding to Belgium in 1831: "That if the Government succeeded in getting the French troops out of Belgium, it would indeed be a master-piece of diplomacy." The French troops had left Belgium; yet it was no master-piece of diplomacy; it was owing to nothing but the good faith and nice sense of honour with which his Majesty the king of the French, not only on that occasion, but on every other, had been found anxious to fulfil every obligation. The Convention on the subject had been laid on the Table yesterday. Notwithstanding the sarcasms of Gentlemen on the opposite side, he was convinced that Ministers, by cultivating friendly relations with France, were taking the best means to secure the peace of Europe. While the two countries continued united, they could command the peace of Europe; for France and England together would never make an unjust war; and he should like to know what power or what confederacy of states had any chance of success from making an unjust war upon France and England united? The Representative system established in both countries was a guarantee that they would involve themselves in no unjust wars. The great foe to the peace of Europe was Holland. The great cause of the obstinacy of the Dutch was the secret hope by which they were undoubtedly actuated of reconquering Belgium. Every event which had recently taken place in Europe had been watched by them, in hopes of its leading to circumstances which might be favourable to the recovery of Belgium. Even the defeat of the 827 Grand Vizier had been considered a matter which might by possibility favour this design. In these circumstances, the present discussion would tend much to increase the obstinacy of the Dutch. If the friends of hon. Gentlemen on the other side had wished to embroil Europe in a general war, they could not have adopted a more likely course than by entering into communications with the very people between whom and this country there were at that time existing communications and negotiations. No men who had held office or filled public situations, but must know that to put themselves privately in communication with those with whom the Government is negociating is not the best way to promote the success of that Government. What, however, was their present course? They sought insidiously to produce an opinion unfavourable to the policy pursued by Government. It was no answer to him to say that no motion had been introduced—that, therefore, there would be no expression of opinion; for if they did not seek to obtain a vote of the House, they endeavoured to give the House a particular view before the necessary documents were ready to be produced. But he did not regret the discussion that had taken place, because the arguments of that night would establish the legality, and the papers when produced would prove the policy and justice of the course pursued by Government. He would, therefore, declare that there was no intention whatever of interfering with the independence of Holland, much less with any of her interests. The sole object was to establish the separation which was now necessary for the welfare of both nations. The independence of Belgium and her neutrality, guaranteed as they were, promised nothing but utility to Holland. If Holland should attempt to recover Belgium, a general war would probably be the result; if she endeavoured to partition it by the aid of other powers, she would find that she had acted unwisely and fatally by making such an attempt. Whether her object was the recovery of Belgium by her own arms, or the partition of it with the co-operation of other powers, it would be the interest and the duty of the British Government to prevent her. The object of this country was to make Belgium independent, and to be independent she must be prosperous, and by that the peace and prosperity of Holland would be best consulted.
§ Sir Richard Vyvyan
thought it was rather unfair on the part of the noble Lord to taunt his right hon. friend (Sir Robert Peel) for not having brought forward this subject last year, for upon several occasions when it was brought forward it was postponed at the urgent request of the noble Lord himself. Even now the noble Lord told them the subject was not yet ripe for discussion, because the papers were not yet before the House. He must complain too of the noble Lord for having given, in his narrative, an unfair epitome of the proceedings of the Conference. The noble Lord had forgotten to tell the House one important fact, namely, that there was no separation between Holland and Belgium de facto before the Duke of Wellington quitted office. The proposal for such an event might have been mentioned at the Hague; it might hare been resolved upon at Brussels, or projected in London; but until the king of Holland gave his assent, the Belgians were only revolted traitors to their lawful sovereign. The noble Lord, with reference to this part of the question, had not told the House that the 12th protocol, although accepted by the king of Holland, was rejected by the Belgians. The manner in which the king of Holland had been treated, from the commencement of the business of rebellion to its termination—in having his territory invaded, and his possessions wrested from him by force of arms, and the vessels and goods of his subjects forcibly seized and detained—was most cruel, insulting, and oppressive. So anomalous was the course pursued upon the occasion, that the parties could not even agree upon the terms by which to designate it. The French government had distinctly declared that the Conference was a mediation in which force of arms was not contemplated. The noble Lord attempted to get out of this difficulty, by assuming that the character of the negotiation was changed when he came into office. First, he said, it was an arbitration; then it became a mediation; and afterwards, at his own good pleasure, it became an arbitration; which necessarily involved the employment of force. But whatever it was, surely, after three Powers out of the five composing it had withdrawn, there was an end of the Conference. If it continued after that, it could no longer be the same body, having the same powers or rights. If, as the noble Lord said, it was an arbitration, how 829 came it that the majority of voices did not decide the question? If three Powers voted against an act, and two persisted in it, that could not be said o be the act of the five. The interference of France and England, therefore, with Holland, was a separate and independent act of those two powers, having no reference whatever to the previous objects of the Conference. The noble Lord's sole justification for the conduct of England in the affair was, that she was bound by engagements with France. But if the purport of those engagements was unjust and tyrannical, did the mere fact of such engagements existing clear the noble Lord from responsibility? The noble Lord had laid down a new principle in European diplomacy, namely, that if the subjects of a king chose to revolt from him, they might lawfully do so, and be entitled to the aid of foreign powers to erect themselves into an independent state. This was the new principle of the noble Lord, and its folly and injustice had received a signal reproof from the Speech put into the mouth of his Majesty in opening the present Parliament. The first sentence in that Speech announced his Majesty's determination to carry into effect the objects of the Conference in completing the separation of Belgium from Holland. That was the first sentence of the Speech. The last was a singular contrast to it, for it contained his Majesty's expression not to permit any measure having a tendency to weaken even the legislative union between two portions of his dominions. Thus was one sentiment in his Majesty's Speech made to rebuke another. Did not the noble Lord see how the same argument might be brought forward hereafter to justify the separation of Ireland from England. The difference of religion and many other points of similarity between the grievances of Belgium and Ireland as against the Union with Holland, on the one hand, and England on the other, might be adduced with as much plausibility in the one case as in the other. He thought a great distinction was to be drawn between the Convention and the treaty. By the Convention the king of Holland was not called upon to deliver up the territory which he had taken from another, but he was called upon to give up a city which had been delivered to him as a sovereign. If ever there was a question upon which the right and justice were clear, it was at the king of Holland's 830 right to the Scheldt. That river always had been closed from the earliest days of Dutch power, a right which was possessed by Holland as one of the consequences of that manly struggle which was the beginning of their national history. The right to close the Scheldt had been defended and maintained by every treaty, from the peace of Westphalia down to the occupation of Belgium by the French republic. When Belgium was annexed to Holland, it became an open navigation; but as the basis of the new treaty of separation admitted the status quo before the union, the right to close the Scheldt ought in justice to revert to the Dutch. But the king of the Netherlands had given up that right. He contended for the undoubted privilege of a sovereign to fix the toll, and the noble Lord, determined to trample him completely under foot, made a commercial war, for the purpose of utterly subjugating and demeaning the Dutch nation. The noble Lord deprecated discussion now, as he had always done before; but had nothing occurred since the last Session? Had not blood been spilt? Could the noble Lord possibly defend his siege of Antwerp? He found fault with the right hon. Baronet for bringing forward that question now. But was not the act complete? Was not Antwerp taken, and its garrison now prisoners of war? Were we not at war? [Lord Palmerston: No!] Then how could this garrison be prisoners of war? The noble Lord had proceeded upon the principle of force, not of law or of right, in this business. He had concurred in doing by force of arms as great an act of injustice as had ever been imputed to Napoleon. The king of Holland was accused of breaking the Treaty of Vienna; but that treaty was at an end from the moment the Conference of London met—from the moment Louis Phillippe ascended the throne of France. On the opposite side of the House the question of policy had been fully discussed. On his side of the House this had been carefully avoided, for they considered justice to be the best foundation of policy. The question of the embargo, or rather the seizures of an ally in the Channel, had been already fully argued by his hon. friends. He should only say, that if the intention of the noble Lord was to alarm and annoy the merchants of Holland, to breed dissension and dislike between the subjects and the 831 sovereign of that state, a more reprehensible course could not have been adopted. Almost all other embargoes had been preceded by a declaration of war. The noble Lord had mentioned Turkey, but then we were at war, and sent a fleet to the Dardanelles; in the case of Denmark, their fleet was captured after a bloody engagement—in that of Russia, the Emperor Alexander had issued his manifesto after the treaty of Tilsit. The American proclamation came out on the 18th of June, 1812, and the embargo was instituted by this country on the 1st of August following. An insinuation had been thrown out against Gentlemen on his side of the House as entertaining a hope of involving Europe in war. Nothing could be more unjust. He was convinced that every Gentleman on his side of the House would do his utmost to produce a contrary result. But rather than purchase dishonour by sanctioning the interference of the great Powers upon every occasion, to overawe the weaker in defiance of right and justice, he would prefer an appeal to that great arbitration which would ultimately settle all disputed rights. It appeared to him that we were now in a state of war without being able to anticipate the advantage of bringing the matters in dispute to an equitable settlement.
§ The House resolved itself into a Committee of