DANISH CLAIMS. (Hansard, 23 May 1843)

§ Mr. Hawes:
Sir, when I recollect how often the subject of the Danish claims has been brought under the consideration of the House in the interval from 1808 to the present time, and how often it has been discussed by many of its most distinguished Members, I own I wish it had fallen to the lot of some one, whose learning and authority would give weight to his argument in advocating these just claims, again to solicit the attention of the House to the subject; but, Sir, being requested by those who are deeply interested in the question to bring it once more before the House, and believing as I do that these claims are founded in justice, I have yielded to their wish. Sir, there are two points of view in which I shall regard this subject. First of all, I shall review the proceedings of the House with regard to these claims; and next, I shall briefly allude to the peculiar circumstances of the case, and the principles of justice and of equity upon which, without any reference to the proceedings of the House, I believe these claims to be founded. Sir, I might rest my case upon the proceedings of the House alone, but if I did it would restrain me from urging those claims of justice, on which it might be said it ought to rest; and though I cannot therefore avoid reopening the whole case, yet it has but so recently been powerfully argued as to demand but a brief recapitulation of the 807 principal points involved in the discussion. Sir, during the late war with France, in 1807, it is matter of history, the English Government, apprehending from the conduct and policy of France, of which it had secret intelligence that the Danish fleet would be pressed into its service, and used against us, the more effectually to maintain the blockade of the Continent against our commerce, determined to anticipate the designs of France, and take possession of the fleet. This act of course led ultimately to a war between England and Denmark; and previously to the formal declaration of which, which was delayed for political objects, ships, and property, belonging to the subjects of the two countries, were reciprocally seized and confiscated. Out of these acts arise the claims of certain British merchants for compensation. During a period of five-and-thirty years their claims have been urged on the attention of the Government, but it was only in 1834 they were successfully brought under the consideration of the House of Commons. In that year they were brought before the House by my hon. Friend the Member for Sheffield. On that occasion, the House, by a general concurrence of opinion in their fairness and justice, induced the Chancellor of the Exchequer of that day to yield to inquiry. And in consequence of the motion of my hon. Friend, to which I have referred, a commission was appointed to inquire into the nature and extent of the claims. The Commissioners so appointed divided the claimants into three distinct classes; those three classes were these; the first, consisting of the owners of book debts confiscated; the second, of the owners of goods seized on shore; and the third, consisting of the owners of ships and cargoes afloat. The Treasury left the question to Parliament, to decide whether any or all these claims were to be admitted or not; and I beg to remark, that the Treasury, by consenting to the inquiry, adopted at least the opinion of the House in favour of the general principles of equity on which the claims were contended for by the Member for Sheffield. In 1836 Parliament sanctioned the payment, and the Treasury paid the claimants comprised within the two first classes, but refused to pay those of the third class, consisting of the owners of ships and cargoes afloat. The refusal to pay this class was grounded on the opinion given by the law officers of 808 the Crown, that all ships and cargoes, whether in port or on the high seas, might be seized and confiscated, though the two, the Danish and English Governments were not formally at war. At the present moment I do not mean to raise any question with regard to that decision I am now simply recalling the several decisions the House has come to from time to time when these claims have been brought under consideration. But notwithstanding the opinions so said to be given by the law officers of the Crown, in the year 1838 these claims were again brought under the notice of Parliament, and on that occasion the House, by a majority of thirty-four, authorized the Government to pay this third class. The Treasury determined not to give effect to the opinion of the House, and therefore while it yielded to a further inquiry called for by the House, it restrained the Commissioners from coming to any judicial decision. All, therefore, the Commissioners could do was to make the inquiry, but without coming to a judicial decision. This not being satisfactory to those who thought the demands of the claimants were just, in 1839 the question was again brought before the House, and a motion carried that the Commissioners should be called upon to adjudicate upon the claims sent in. The Commissioners then embodied their decision in a Report dated May 12, 1840, in which they stated, as the result of the whole investigation, that there were 116 claims, amounting, in all, to the sum of 225,000l.. Notwithstanding these repeated decisions of the House of Commons—decisions come to certainly after considerable discussion, in which some of the ablest Men in Parliament delivered their opinions upon the subject, the Treasury still declined to ask the House for a vote in liquidation of them; and, accordingly, in 1841, another motion was made and carried for a committee of the whole House to address the Crown, and give an assurance to provide the sum necessary to meet the claims ascertained to be due by the commissioners. Still the Government determined to resist, and nothing was done in consequence of that motion. In June 1841, however, Mr. Cresswell, then Member for Liverpool, and since raised to the Bench, whose name alone gives weight to the cause of the claimants, and strengthened by which I venture to follow him, 809 again successfully brought the subject under the consideration of the House, expressing a strong opinion in favour of them, and arguing in support of them not only on legal but on grounds of general policy and justice. He was opposed on that occasion by my hon. and learned Friend near me, the Member for Worcester (Sir T. Wilde) then Solicitor-general. I have now brought the House down to the last motion made on this subject; and I have shown that, by a succession of decisions, the House has repeatedly assented to the justice of the grounds on which these claims are supported. I shall just mention the various majorities by which the motions on this subject were carried in this House. The first majority amounted to 34, the next to 62, the third to 31, and the fourth and most important motion, recognising the third class of claims, was carried by a majority of 11. Having thus shown that I have the opinion of the House of Commons in my favour, I wish to say one word upon the justice and the special circumstances of the case. It has been said in previous debates that the payment of these claims involved the important question of the justice or injustice of the expedition to Copenhagen. But I raise no such question. It is not necessary that I should do so. The question, however, that I do raise is this:—Whether, should it be the interest of this country to pursue a certain line of policy for the general safety of the empire, demanding great secrecy and great caution in order to ensure success— whether, should that be the case, it would not be a great injustice to make British merchants, and especially that class of merchants most likely to suffer in such a case—namely, the shipowners and parties connected with the foreign trade; — whether it would not be altogether unjustifiable to make that class only bear the consequences of that course of policy which, under special circumstances, the Government thought it advisable to adopt? a course of policy in this case be it remembered quite without a parallel, and unlike every other act committed during the period of our long and arduous conflict with France. I know it has been urged, and urged very strongly by the noble Lord, the Member for the City of London, that this injury to our merchants and ship-owners was an unavoidable injury, in the ordinary course of war. But that I dis- 810 tinctly deny. It was not under the ordinary circumstances of war that these losses were incurred. War did not formally commence till a period after the seizure of the ships in question, and I believe I may safely say, that no precedent can be quoted of hostilities being commenced or having risen under similar circumstances. There is no precedent of the kind. 1 find no trace of an allusion to any parallel case in the course of the previous debates upon the subject; and am, therefore, entitled to consider this as a wholly special case, not likely to be quoted hereafter, and not likely to lead to other claims upon the Government. It is a ease so distinct in all the circumstances accompanying it, that if the House accede to my proposition there can be no ground for the apprehensions of the right hon. Gentleman the Chancellor of the Exchequer, that future claims will arise in consequence of yielding to a claim of justice in this case. I think I am quite entitled to take this view of the case, even from what has fallen on a former occasion from my hon. and learned Friend the Member for Worcester. My hon. and learned Friend has in fact shown that this is a special and peculiar case, both as to the principle of the claims, and therefore as to the consequences which would follow their acknowledgement. My hon. and learned Friend has asked whether the seizure of the goods of British merchants in a time of war, would involve a claim for compensation? I admit that it might not. But that is not the case. The policy pursued in this instance was a policy of a peculiar character, necessarily involving perfect secrecy, which deprived our merchants of all the ordinary means of protecting their interests. My hon. and learned Friend stated on a former occasion, that the Government had obtained secret information that it was intended that the Danish fleet should be used against this country, that there was a secret article in the treaty of Tilsit to that effect, and that the Government having received information of it, had anticipated and defeated the project. But then a Government acting in anticipation of the presumed arrangements of a treaty for national interests, let it be admitted, on that account, is surely under stronger obligations generously to consider the peculiar interests of the owners of goods and ships | afloat. Such was the argument of my 811 hon, and learned Friend, and without combating his argument, I rest my case upon the special circumstances attending it, as admitted by him. With the policy of that anticipation of the secret article of the treaty of Tilsit I do not quarrel —with the policy where the interests of the country were concerned, of maintaining perfect secrecy, and acting with promptitude and vigour, I do not quarrel; but I do say, that the merchants were deprived of all the ordinary forewarnings of hostilities, and that their claims are entitled to a more favourable consideration, because it was utterly impossible that they could have exercised that caution and vigilance which, on ordinary occasions, they are bound to exercise to guard against losses of the kind in question. Therefore, upon my hon. Friend's own statement, the Government acted upon secret information, in anticipation of something which they thought might happen; and if so, that has invested this case with a peculiar character, and has given to these merchants a claim, in my opinion, to compensation from the country, which is novel and special, and such a claim as can hardly ever arise again. It must also be recollected that it was strongly argued by my hon. and learned Friend that the known fact of the fleet having been fitted out, and having arrived on the coast of Denmark, ought to have been a warning to British subjects. Now, Sir, I have been looking over the former debates, and 1 find it stated that the fleet was not sent out for the purpose of immediate hostilities, but to aid in carrying on negotiations; and the presence of the fleet was made the groundwork of negotiations— negotiations begun, and renewed even after the attack on Copenhagen, and the very first proclamation of the British admiral, which first threw light upon the object of the expedition expressly declared so. I find Mr. Canning stating that the declaration of war was actually delayed in the hope that negotiations might even after that event be successfully renewed. Now, if that were the case, I think it anything but a fair argument on the part of my hon. and learned Friend to say, that British merchants ought to have taken warning from the fitting out of the fleet. The statement of Mr. Canning entitles these claimants to great consideration. It was also mentioned during the late debate, that all these claims had occurred 812 after the 16th of August, 1807, when a proclamation had been issued by the Danish government, which was tantamount to a declaration of war, but that proclamation was never so considered; and this is proved by the proceedings in the case, of the ship Orion, taken the 10th of October, which was made the subject of litigation in the Admiralty Court, and in which the Court decided that the seizure had taken place prior to the declaration of hostilities. I take that decision of the Court as an authority on that subject greater than the statement of the hon. and learned Gentleman. My hon. and learned Friend takes the 16th of August as the date of a formal and official declaration of war. But the fact is not so. I find, only on the 4th of November, three months after a formal declaration of war against Denmark, on the part of England. In fact, the Danish proclamation, dated Gluckstadt, 16th of August, was not a declaration of war, because negotiations were not broken off; and the Danish declaration of war was not issued until as late as the 24th of December. Now, Sir, I think, therefore, I am free to say that I have shown there are very special circumstances in the case, that compensation to these claimants is not likely to be quoted as a precedent; and if then, in addition, I show that my cause is just—and I have a right to assume that it is from the frequent decisions of this House—if I show that, and further that it is a special case, I overcome a great portion of the objections which the present Chancellor of the Exchequer has taken, on more occasions than one, to the settlement of these claims. It has been said, however, that the claimants have been guilty of laches, and thereby have forfeited their claim to the attention of the House. That, however, is an unfounded statement. There was a memorial presented to the Treasury in 1808, another in 1809, to which Mr. Wilberforce was a party; there were also memorials in 1810, in 1818, and in 1820. It is true, that from 1825 to 1834, there does not appear to have been any proceedings instituted on the subject, either with respect to the Treasury or the House of Commons, — perhaps the important events, and the frequent changes in the administration during those years, may account for this. I trust, however, in deciding this question to-day, that the House will keep in mind the large amount 813 of money that came into the possession of the British Government—1,100,000l.—by the confiscation of Danish property. That property ought to have been held us a trust fund, out of which the claims of this nature might be paid were to be liquidated,—and it was at one time so considered, inasmuch as in 1810, Mr. Perceval stated that the confiscated Danish property was a fund out of which British merchants might have their just claims satisfied. And in another point of view it appears to me this fund is justly liable to pay these claims. I think I have shown that this seizure did not take place during a time of war, and I do not know to what document or what date the hon. Gentleman opposite, who dissents from me, refers, when he says that there was a prior declaration of war. I contend that the declaration which has been said to be a declaration of war is no such declaration. If, therefore, these seizures took place before the formal declaration of war,—and that they did so Mr. Canning is an un impeach able evidence,—then I say, they are to be looked upon in the light of reprisals. As we raised a large fund by the seizure of Danish property, I think our own merchants have a fair right to consider a fund obtained by acts of reprisal on Danish property, a fund out of which their claims arising out of the seizure of English ships and cargoes ought to be paid. But I should not presume to urge this argument upon the House so confidently as I do, were I not supported in it by others who have preceded me, in comparison with whose opinions my own must be of very little value. I can, however, refer to an opinion of the greatest weight concurring with the views which I now take the liberty to state on this subject,—I mean that of the hon. and learned Gentleman the Solicitor-general opposite. I find the hon. and learned Gentleman the Solicitor-general said, in 1836, in an opinion upon a case submitted to him, It appears to me that the claimants for losses by the seizure of their ships and cargoes make out a very strong case for the equitable consideration of the Government. Now, this, the equity and justice of the case, is the main ground on which I rely. I do not rely upon technicalities. I rest upon the broad ground of justice. Nor does the hon. and learned Gentleman stand alone in his opinion. He speaks in conjunction with another eminent lawyer,—a 814 lawyer peculiarly qualified to pronounce an opinion on a case of this nature, on account of his great acquaintance with international law. Dr. Lushington, the present judge of the High Court of Admiralty, the very highest authority in this country upon this subject, and in a branch of law to which this question peculiarly belongs, gave a similar opinion, and said, in 1835, that The retention of Danish property, without compensating the British sufferers, is not consistent with my notions of justice. The ground upon which the claimants rest is that it is a great hardship for British subjects to lose their property by Acts of the Crown, when those very Acts of the Crown brought to the country a much greater properly than it lost,

Dr. Lushington
said, in fact, that the British Crown, having obtained by this act—whether rightly or wrongly, I do not now inquire—more property than the subjects of the Crown had lost, the subjects of the Crown might fairly look to that fund or compensation. I hope, therefore, the Solicitor-general will not now oppose a motion which in 1836 he thought fairly entitled to the equitable consideration of the House. Now, Sir, before I conclude my case, I must refer the House to one or two of the names of Members who voted for those claims. A very large number of the Gentlemen opposite voted for their liquidation, and it will not now, I am sure, be considered a party question. It is one which I trust will be decided on equitable considerations, and without reference to parties. On former occasions such was the intermingling of parties, that it was impossible for any one to know beforehand what the decision of the House would be from the party in power. So I trust it will be on the present occasion, and I hope that hon. Gentlemen opposite will recollect the voles they gave on former occasions, and will not alter their opinions from the imperfect manner in which 1 have stated the case. There were seventy five members who voted for the liquidation of these claims, and amongst them I find the name of the hon. and learned Member for Woodstock, whom I specially name, because his vote was given after the question had been legally argued. J also find the name of Mr. Freshfield, also a lawyer of great experience, and if 1 mention these only, it is because they as lawyers were called upon to vote, and did vote upon a question which involved legal 815 considerations of great importance. Sir, I believe if the House now decides in conformity with its previous decisions, that the right hon. Baronet, the First Lord of the Treasury, will not interpose his authority between the claimants and the concession of their just demands. I do not think, after the repeated decisions of the House of Commons, that it was a justifiable mode of opposing the votes of the House, to offer that passive resistance which has been issued by the Treasury. The Government found itself destitute of support in the House of Commons, beaten in argument, and reduced to the necessity of giving only a passive resistance to the votes of this House. The House of Commons having on many occasions addressed the Crown in favour of these claims, promising to make good any sum that might be required to pay them, I believe it is almost without precedent that, having expressed that readiness, it should not have been called on by the Government to fulfil its expressed intentions. I do not believe the right hon. Gentleman will be able to show me a precedent that can justify the conduct of the Government. I will not refer to the case of Mr. Palmer, in 1807, because though in that case the House voted that certain claims ought to be liquidated; and though the Treasury interposed its resistance, yet there was a distinct Act of Parliament, which gave Mr. Palmer the right to what he claimed, and under which 1 believe it was ultimately settled. We have no such Act, and therefore I do not insist upon that case. I have, Sir, laid the whole statement, as fairly as I could, before the House, and 1 now leave the question to its sense of justice. I ask it to bear in mind that no precedent can be found adverse to the settlement of these claims after the repeated decisions of the House. I ask it to keep in mind the opinions of the Solicitor-general, of the judge of the Court of Admiralty, and of those lawyers who took part in the debate, and especially of the arguments of Mr. Justice Cresswell. I ask the House, keeping these things in mind, to give its support to the motion, with which I shall now conclude,— That an humble Address be presented to her Majesty, praying that her Majesty will be graciously pleased to take into consideration the report of the Commissioners for the investigation of Danish claims, dated 12th May, 1840, to whom it was referred, to examine and adjudicate upon the claims of cer- 816 tain British subjects, (or losses sustained by the seizure and confiscation of their ships and cargoes by the government of Denmark) in the year 1807, and that her Majesty will be pleased to advance to such claimants the amount of their respective losses, as ascertained by the said Commissioners, and assuring her Majesty that this House, in pursuance of frequent former decisions upon these claims, will make good the same.

§ The Speaker
said, that by a standing Order of the House, no Address could be voted to her Majesty for a grant of money except in a committee of the whole House; and that the House could not resolve itself into a committee of the whole House on a motion by an hon. Member, without that hon. Member giving notice of his motion previously.

§ Mr. Hutt
said that the late Chancellor of the Exchequr had, when the subject was previously before the House, stated that in consequence of the repeated decisions of the House of Commons in favour of the claim of Mr. Palmer, he did not think it proper or becoming to come forward and stand between the feelings of the House and the subject, and that although be was personally opposed to the claims, he thought it his duty to signify his assent to the motion. Now, as the present case was precisely similar to that one, he could not believe that the right hon. Gentleman opposite (the Chancellor of the Exchequer) would wish to throw over the question on a mere point of technicality. That precedent being so completely in point, he trusted the right hon. Gentleman opposite would come forward and imitate the example of his predecessor.

§ The Chancellor of the Exchequer
said, that he thought it of the utmost importance that the House should strictly adhere to the rules laid down for the conduct of its proceedings. The hon. Gentleman was clearly acting in violation of those rules. He was ready to discuss the question, but he felt so strongly the necessity of supporting the rules of the House that he would not take any other course than that which he conceived in accordance with those rules.

§ Colonel Sibthorp
had come down upon that, as upon all former occasions, to support the claims of men who had, he considered, been refused common justice. He should much regret that the hon. Member should be prevented upon a point of form from taking the sense of the House 817 upon the subject he had brought under their consideration. He had no hesitation in saying that it was a disgrace to the Government to have so long refused a claim admitted by the House.

§ Sir R. Peel
said, that his experience with respect to grants of money made by the House of Commons, convinced him that it was advisable strictly to adhere to the forms of the House upon such subjects. The hon. Gentleman had not adduced any instance of a departure on the part of the House from the course usually adopted with respect to money grants, and which had been laid down by the Speaker. The hon. Gentleman might give a notice for another day of a particular mode in which the grant should be made. That was the course which had been adopted by Mr. Cresswell, and to which he thought the hon. Gentleman ought to conform. He should repeat, that his experience convinced him that it would be wise, in all cases of money grants, to adhere to the strict and technical rules of the House.