HC Deb 15 July 1836 vol 35 cc235-41
Mr. Clay

, upon the order of the day being moved for the third reading of the Church of Ireland Bill, brought forward his motion that the petition which he had already presented from persons having suffered loss by seizure of property by the Danes, in 1807, should be referred to a Select Committee. He observed that there had been different classes of claimants upon the Government; to some of them their demands were conceded, while those whose case he now brought forward had not received that to which he thought they were justly entitled. In the year 1807 the British Government considered that the French were about to take possession of the Danish fleet, and in consequence an armament was sent out to Copenhagen, under the command of Lord Cathcart and Admiral Gambier. Their instructions were, if possible, to obtain possession of the fleet by negotiation; if not, to take it by force. The details of the circumstances that followed, and the peaceable taking of the fleet, were sufficiently well known. It had, however, been declared by the commandant of Copenhagen, that hostilities having been commenced on the part of the English, all English property was to be confiscated. The claims of the English sufferers by that confiscation had been brought forward without success; but at length an hon. Friend of his, in 1834, brought forward a motion on the subject, which was acceded to, and it was left to Commissioners to decide upon the claims of all persons having demands upon the Government. On the 28th of March, 1835, the Commissioners made a Report, in which they arranged the claimants into several classes: first, those whose book-debts had been confiscated; next, those whose goods had been unshipped and placed on shore; and, thirdly, those whose vessels had been seized. The claim arising from book-debts was stated in the estimates at 125,000l.; those whose goods were allowed to be landed were in the estimates of this year for 78,000l..; while, with regard to the third class, whose losses were caused by the confiscation of their ships and cargoes in the ports of Denmark and the Baltic, their claims were refused, and no remedy was to be granted. In answer to an application from the parties who had been thus spoliated, they were told by the Treasury, in October, 1835, that their demand could not be acceded to, because the confiscation of ships or cargoes in port or on the high seas was according to the usages of war, and to accede to the demand in this instance for compensation, would be establishing a dangerous precedent. It had been decided by Lord Ellenborough that the seizure of book-debts was contrary to the law of nations—the parties, then, who suffered in that way had a demand upon the Danish Government, and that might be a sufficient answer to them. But here the parties were not apprised that England was at war with Denmark. There was no want of caution on their part; and when that war broke out, it was known in England before they could be apprised of it in the Baltic, and no insurance could be procured upon their vessels. It was not even suggested in the proclamation of Lord Cathcart and Admiral Gambier, when they appeared before Copenhagen, that any act of hostility up to that time had been committed against the English Government. Instances could be shown in which the British admiral assured parties they might with safety proceed to the Baltic. It was to be observed, that the amount of Danish property seized could not be less than three or four millions, while the English property seized was very trifling in amount. It might be said that the parties here had no legal claim; but there was an equitable claim, the recognition of which was demanded by national honour and a sense of justice. He contended that the confiscation of Danish ships was a robber-like transaction on the part of England. There could be but one excuse for such conduct, namely, that the proceeds were made available to reimburse British subjects who had suffered loss through similar proceedings on the part of Denmark. He did not blame the present Government for the course they had thought it their duty to pursue in regard to these claims, no doubt they had acted according to what they thought to be their duty, in refusing to make payments of this description, for which they had not received the sanction of Parliament. He trusted, however, that this evening the House would give their sanction to the payment of the just demands he had endeavoured to advocate. The hon. Member concluded by moving that the petition be referred to a Select Committee.

The Chancellor of the Exchequer

said, it was one of the most painful tasks which a Minister of the Crown could have to perform, but still no less an imperative duty, to resist the payment of demands of this description, when brought forward in that House, unless he could bring himself to believe that those claims were founded in justice. His conviction was, that if the principle of the present motion were to be admitted, it would form a precedent new in itself, liable to extension, and leading to the worst possible consequences, not only in a commercial point of view, but also as regarded our diplomatic relations with other countries. The total amount of claims to indemnity as they originally stood, were classed under the following three heads—namely, first, book-debts, &c., confiscated by the Danish Government, amounting to 112,000l.; secondly, goods and stock to 78,327l.; and, thirdly, ships and cargoes alto confiscated, estimated at 6,641l. The first two of these classes had already been admitted and provided for by Government nearly; 200,000l. had already been paid on account of them, and now a claim was still maintained against the country for the 6,641l. for the ships and cargoes. Now this demand he was prepared to resist, and that not upon his own authority, but upon that of the Crown lawyers—he did not mean his hon. Friend the Attorney-General, who sat near him, but former Crown lawyers also, who, when applied to to state how far these injuries were justified by the laws of war and of nations, replied, that all ships and cargoes, whether in port or on the high seas, might be seized and confiscated, even though the two nations were not actually at war at the moment; but that goods and items of the nature mentioned in the first two classes were not subject to such seizure, and ought to be fully indemnified to their owners. Now, this was the opinion upon the weight of which he had hitherto acted, and by which he was prepared to stand on the present occasion. He would only add on this point, that when, on a late occasion, application was made to him on the subject of these claims, he told the applicants that, in order to give them every chance of success, he would lay their own statement of the case before the Crown lawyers, if they would draw one up. This they did, and the statement was laid before the Crown lawyers, who, after taking it into consideration, said, that they saw in it no ground whatever to alter the opinion which they had already given on the subject. He would not enter into a discussion as to the justness or injustice of the hostilities in which these confiscations took place, in the same way that he was not prepared to assert the justness of the causes of the American war, or of the French revolutionary war as it was called; he confined himself to this simple principle, that the war once commenced and in operation, the laws of nations and of warfare were the same and unchangeable. Upon the grounds which he had thus stated, he felt it to be his duty to resist the motion of the hon. Member for the Tower Hamlets.

Mr. George F. Young

thought it to be his duty to oppose the right hon. the Chancellor of the Exchequer on this question, and to give his support to the motion of the hon. Member for the Tower Hamlets. He had it upon a very high authority, in opposition to the opinion stated by the Crown lawyers, that these proceedings had taken place in direct contravention of the law of nations.

Mr. Hume

would also support the motion of the hon. Member for the Tower Hamlets. He contended that this country was not at war with Denmark at the time these seizures took place; so far from it, the parties trading with Denmark, and having cargoes on the point of starting to that part of the world, made inquiry of the Government at home, and also of the Danish Ambassador, whether hostilities were meditated in that quarter, and they received an assurance in the negative. After taking this precaution, and receiving this assurance, he thought it extremely unjust that these parties should be made to suffer. He trusted that the House would act upon the principle that British subjects ought always to be protected in furtherance of their lawful commerce, upon which so much of our strength as a great maritime nation depended. He called upon the House not to resist those claims in the manner and on the grounds stated by the right hon. the Chancellor of the Exchequer; but as they had already indemnified the first and second class of losses, that they would complete the act of justice by paying those comprehended in the third class.

Mr. Hutt

hoped the House would not support the right hon. the Chancellor of the Exchequer in the technical objections which he had raised against these claims. It was proved that these parties had acted under the assurance of perfect security given them both by the British Government and the Danish Ambassador, and he thought sufficient grounds had been shown to justify the House and the Government in admitting the claim which was now made.

Dr. Lushington

said, that although he agreed in many of the arguments of the right hon. the Chancellor of the Exchequer, he must add that he felt under the necessity of coming to a different conclusion as to the justice of these claims in the present case. He quite agreed with the right hon. Gentleman that claims of this description should be entertained with great caution; and that they should not be listened to unless undeniably established upon the grounds of justness and right; and it was because he did think that the present claims were so established that he should support the motion of his hon. Friend, the Member for the Tower Hamlets. The Chancellor of the Exchequer held the doctrine that to seize the vessels of other powers, even when no war had actually commenced, was not contrary to the law of nations. This was a principle which he (Dr. Lushington) would not admit, although a distressing precedent had occurred previous to the present case, in the seizure of the Spanish ships in 1804. Surely, if this principle were admitted, and was to be acted upon, it would lead to a total distrust of treaties, and would greatly tend to check that system of peaceful commerce which now existed with so much advantage to all nations. He hoped that, for the sake of a few thousand pounds, the Government of this country would not be led to commit a gross wrong on individuals.

The Solicitor-General

said, that the distinction taken between the two classes of cases was perfectly supported by the law of nations. The class now under consideration was such as included those liabilities to which every man circumstanced as these claimants were, either knew, or ought to know, that he was subject. The only question was, whether this seizure was consistent with the law of nations, or in violation of this law? The moment they came to the former of these conclusions, it followed that, however great the hardship on individuals might be, the ships were taken according to the usage of nations, and that this seizure came within the same class as that which comprised the ships taken in the ordinary course of warfare. Though it might be expedient that this law should be changed by the consent of all nations, and that some notice of seizure should be given, rather than that the first intimation of the intention should be conveyed to traders by the act of seizure itself, still it would be inconsistent with all precedent, if such a course were adopted without the abrogation of that law, which had hitherto been observed, being made in the first instance.

Mr. O'Connell

expressed his hope that the House would not sanction such a system of abominable plunder as that by which vessels and cargoes were seized without the possibility of any notice that the nations were engaged in war. They would never have borne with such a system only that they happened to be the greatest naval power in the world, and that they had themselves practised it. The argument that this practice was justified by international law amounted to this—because we have plundered others, that is a sufficient reason for pronouncing the act which we have committed, as one warranted by international law. He admitted, that this had been the practice, but he denied that it was the law; and he trusted that the decision of that House would deter not only this but other countries from adhering to such a practice. This claim was one founded in justice; its rejection on this occasion would be but a continuation of wrong, and he hoped those who made it would never cease to urge it upon the consideration of the Legislature until the cry of justice for Englishmen resounded through the land.

Mr. Goulburn

said, that the case made out by his right hon. Friend (the Chancellor of the Exchequer) was so strong that he felt bound to get up and state his conviction, that these claims ought not to be acceded to. The doctrine of the hon. and learned Member for Kilkenny, if worth anything, laid it down, that not only should the Danish merchants receive the amount of their losses, but that England was to be considered liable to the making good of all losses on account of seized cargoes, where the suffering parties were ignorant of a declaration of war having been published. This general position would, he need not say, give rise to more claims than the wealth of England could redeem. The hon. and learned Member had then gone on to say, that the seizure of the cargoes of the petitioning merchants was an act of robbery, and that the property so forfeited should be made good to them. If this position was maintainable, England should at once say to Denmark, "We have robbed you of 1,500,000l., and we must compensate you." Upon the fullest consideration of the subject, he felt bound to oppose the hon. Member for the Tower Hamlets' proposition.

The House divided on the original Motion; Ayes 59; Noes 51—Majority 8.