HC Deb 31 July 1845 vol 82 cc1286-96
Sir Robert Peel

moved the Order of the Day for receiving the Report of the Slave Trade Brazils Bill.

Mr. M. Gibson

wished to make one or two remarks before this stage of the Bill had passed; and in addition to these, he was desirous of putting a question to the right hon. Baronet at the head of the Government with respect to the Bill. He had given the measure the fullest consideration, and he had looked to the opinions of those who were competent judges, and he was unable as yet to regard the measure in a favourable light, in any point of view in which he regarded it. It appeared to him very questionable whether, according to international law, they could make the provisions of the Bill binding on Brazilian subjects; and if it were, he did not think that it was calculated to assist the course of policy which we were desirous of carrying out with respect to the Slave Trade. It seemed to him to be a dangerous doctrine to set up proclamations instead of law. It appeared to him to be a dangerous doctrine to make the dictum of the Executive Government—of the temporary advisers of the Crown—equivalent to the effect of law; and he did not think that the subjects of another country ought by such a dictum to be dealt with and punished for a crime which the law and tribunals of their own country had not declared to be a crime. There was no law in the Brazils which declared the Slave Trade to be piracy, and the Government of this country knew that there was no such law. How then could we consistently pass an Act, the object of which was to punish Brazilian subjects to a degree to which they would not be punishable in their own country, and for an offence which the laws of their own country had not declared that they ought to be so punished. Another question arose which it was most desirable to have answered by the Government before they passed this Bill, namely, whether we had power to inflict punishment upon Brazilian subjects for an offence against our laws, they having no such law; and he confessed himself to be still at a loss to understand the explanation which the Attorney General had given on the last occasion when this subject was before the House. The policy of such a course as this appeared to him to be fatal to a good understanding with Brazil, and to be quite opposed to the object with which it was introduced, of inducing in the public opinion of Brazil an opposition to the Slave Trade, and a desire for its abolition, as it was rather calculated to excite hostility in Brazil to our exertions, and become dangerous to the interests of British subjects and to British trade in the Brazils. It appeared to him also that it was calculated to prevent the co-operation of Brazilian subjects in our exertions, which co-operation, it would seem from Papers that had been laid on the Table of the House, might have otherwise been expected, as measures were in progress in Brazil to put an end effectually to the Slave Trade. That was an additional reason why they should have abstained from a measure of such bad policy as this, and he therefore felt it his duty to enter his protest against the measure. He begged now to make the inquiries of which he gave notice. He wished to know whether the Brazilian Minister in this country had addressed to Her Majesty's Government any remonstrance or communication relative to this Bill? If such a communication had been received by the Government, he thought that the House was en- titled to see the communication or remonstrance, and that it should be laid before Parliament. He thought that as they were called upon to share in the responsibility of the Executive, the Executive Government should place the House in the same position in which they stood themselves—and should have a full opportunity of judging both of the law and the policy of this measure. He would ask the right hon. Baronet, then, if a remonstrance had been received, and, if it had, whether he could lay it on the Table of the House? If it was received, why should they not delay this measure till they had printed this remonstrance or communication? The Report was brought up on Monday last, and the matter was postponed till this day, and he was not chargeable with that delay. He did think that they should not be acting properly, and that they should not be doing what was required, if they acted without the fullest information. He would conclude by requesting Her Majesty's Government to inform them whether they had received that information.

Sir R. Peel

thanked the hon. Member for having given him an intimation of his intention to ask this question. He was quite confident that the hon. Member would not take advantage of the late period of the Session to defeat this measure. It was true that he postponed the Bill on a former occasion, in order to have an opportunity of maturely weighing a suggestion of an hon. Member, by whom no suggestion could be made which would not be worthy of attention. He had postponed the Bill till that day in order to have an opportunity of further deliberation, and having the opinion of the highest authority upon the subject; and he hoped that the delay caused in that manner would not prejudice the measure at this period of the Session. He could assure the hon. Gentleman that he had given the most mature consideration to the Bill; and that, having, in addition to that, taken the opinion of the highest authority on the subject, his opinion remained unaltered with respect to it. According to the opinion of that authority to which he had referred, under the First Article of the Convention of 1826, the Sovereign of this country might consider the carrying on of the Slave Trade, on the part of Brazilian subjects, an act of piracy. The First Article of that Convention was to the effect, that after the expiration of three years, to be reckoned from the exchange of the rati- fications of the Convention between the two nations, it should not be lawful for any subject of the Emperor of the Brazils to be concerned in carrying on the African Slave Trade, under any pretext, or in any manner whatsoever; and that carrying on the Slave Trade after that period, on the part of subjects of His Brazilian Majesty should be deemed piracy, and treated as such. There was not in that Convention any obligation on Brazil to pass a municipal law to make the offence of carrying on the Slave Trade piracy. Carrying on the Slave Trade could not be piracy by international law, as they would see, if they recollected that this country had carried on the Slave Trade at no very remote period. The simple act of carrying on the Slave Trade was not, therefore, piracy by international law; but the carrying on of the Slave Trade had been made by various other countries piracy under municipal law, when that trade was carried on by the subjects of the country so passing the law; and the United States was the first of those countries to which the honour of passing that law belonged. The United States passed a law in 1824, by which the Slave Trade was declared piracy, and the subjects of the United States rendered liable to the punishment of piracy under the municipal law of that country. Thus, the countries which had so made the Slave Trade piracy, under their municipal law, had the power to punish their own subjects for carrying on that trade; and at that time a new description of piracy was created between the United States and Great Britain. Under the Convention with the Brazils in 1826, this country had a right to take cognizance of the carrying on of the Slave Trade by Brazilian subjects subsequent to the year 1830; for under that Convention Brazil declared it to be piracy on the part of the subjects of the Brazilian Government. By the Convention of 1817 with the Brazils, a mutual Right of Search was agreed to; and whilst that was in force, it suspended the Article in the Convention of 1826; but by the abrogation of the Convention of 1817 in 1845, the Article in the Convention of 1826 was brought into full force, and remains now in full force, between this country and the Brazils, the Brazilian subjects who carry on the Slave Trade being, by that Article, declared guilty of piracy. The hon. Gentleman said, that the Brazils had passed no law to make it piracy, and inferred, therefore, that so long as the Brazils passed no law to make the carrying on of the Slave Trade by Brazilian subjects piracy, Great Britain had no right to interfere with them. [Mr. M. Gibson: I said, no right to pass an Act of this kind.] Of what kind? The Government of the Brazils had avowed the fact which this country maintained, that carrying on the Slave Trade was piracy, and had entered into a solemn engagement that all its subjects who were found carrying on the Slave Trade should be held guilty of piracy. If that was not the mode of effecting the recognition of the Slave Trade as piracy, what other mode would they adopt? He relied on the common sense of the House in supporting him in the statement, that unless this country took cognizance, in some way or another, of the carrying on of the Slave Trade by the subjects of the Brazils, the stipulation would be of no use. Piracy was not a crime merely against municipal law; and the hon. Member, of course, knew that, by international law, piracy was punishable by all nations; and when a country, in a Convention, declares an act to be piracy, it gives not to all countries, but to that particular country with which it formed the Convention, in which such declaration was contained, a power to deal with the act so described as an act of piracy. If this country were prepared to take no measure in relation to the Convention, it was quite clear that the Slave Trade might be carried on to an unlimited extent under the Brazilian flag; and, according to the hon. Gentleman's opinion, this country would have no power to interfere. It was impossible to say to what extent the abominable crime of slave trading might be carried on, if Parliament separated without establishing a power to prevent it. He would now refer to the view which the Government of the Brazils took of the power of this country to recognize slave trading on the part of the Brazils. In the year 1829, the Brazilian Minister applied to this country to do away with the Courts of Mixed Commission which were constituted under the Convention of 1817. He made this request on grounds of considerable importance to this question. On the 4th of October, 1830, the Chevalier De Mattos, then the Brazilian Minister in this country, addressed the following letter to the Secretary for Foreign Affairs:—

"Wimpole-street, October 4, 1830.

"The Slave Trade on the coast of Africa being totally forbidden to Brazilian subjects from the 13th of March last, and those who shall hereafter engage in it being liable to punishment, in virtue of the stipulations of the Treaty of the 23rd of November, 1826, by the ordinary tribunals of the two high contracting parties, the Undersigned, &c., has been directed by his Government to concert with that of the King the dissolution of the Mixed Commissions established at Sierra Leone and Rio de Janeiro, now entirely superfluous. In consequence of which, the Undersigned has the honour to request his Excellency the Earl of Aberdeen, &c., to be pleased to take the proper measures for carrying the above resolution into effect, with regard to the Commission at Rio de Janeiro, at the end of the next month of December; and in respect of the other, on the 30th of June, 1831, the term at which all the causes pending in the Commision of Sierra Leone must be completely decided. The Undersigned avails himself, &c.

"The Chevalier DE MATTOS.

"His Excellency the Earl of Aberdeen, &c."

England had already provided that her subjects engaging in this trade should be treated as pirates, and be tried by the municipal law. This letter of the Chevalier, therefore, only amounted to a statement that Brazilian subjects were then placed in the same position; and the words of the Chevalier, "by the ordinary tribunals of the two contracting Powers," directly implied that the Brazilian Government thought it unnecessary then to keep up the Mixed Commission Courts, because the ordinary Courts of Admiralty were sufficient. The Brazilian Government also asked that slave ships of theirs, which might have left the coast of Africa, and were not aware that the Convention had been executed, should be exempted from its operation. The English Government, although averse to allow the Slave Trade to continue one hour longer than was necessary, consented that vessels which had quitted the coast of Africa before the 13th of March, 1830, should be allowed to proceed to any port in the Brazils without being subject to be treated as pirates on their way. On the 4th of November, 1829, the Brazilian Government published a Proclamation stating the result. It ran thus:—

"Notice to the Assembly of Commerce, Agriculture, Manufacturers, and Navigation of the Empire of the Brazils, by a Portaria of the following tenure:—

"The Chargé d'Affaires of this Empire, near the Government of His Britannic Majesty, having succeeded in the measures which had been most earnestly recommended to him by this Secretary of State's Office for Foreign Affairs, in order to obtain a reasonable term for settling the affairs on the coast of Africa, which are still pending, relating to the lawful traffic in slaves, the said Chargé d'Affaires has obtained, by a note of the 16th of September last, from the competent Minister and Secretary of State, the Earl of Aberdeen, the assurance that the British Government was about to issue instructions to the commanders of naval forces, and to the respective authorities, informing them that the Slave Trade, conformably to the agreements existing between Great Britain and Brazil, shall be lawfully continued by the subjects of this Empire on the coast of Africa, until the 13th of March, 1830; and, consequently, that those Brazilian vessels, employed in that traffic, which can prove that they have finally left the coast of Africa on or before that period, shall prosecute and finish their bonâ fide voyages direct from Africa to any port in the Brazils, without incurring the liability of being treated as pirates, according to the Convention, notwithstanding their being met with at sea after the said period of the 13th of March, 1830. His Majesty the Emperor ordains, that this notice be communicated by the said Secretary of State's Office for Foreign Affairs to the Assembly of Commerce, Agriculture, &c., in order to give it due publicity.

"Marquis of ARACATY.

"Rio Janeiro, November 4, 1829."

This was sufficient proof that the Brazilian Government knew that their vessels were liable to be treated as pirates if found at sea after the 13th of March, 1830. The construction put on the Convention by the British Parliament was precisely similar. The power of the Vice Admiralty Courts over such acts of piracy had been superseded by the Courts of Mixed Commission, and this Bill contained a clause to remove any restriction of the jurisdiction of the Vice Admiralty Courts by the Convention; it gave to the Vice Admiralty Courts that power which Lord Stowell was of opinion they ought not to have in cases of piracy, and it also declared they were to have that power. They did not ask for any unnecessary power—they merely declared a power to deal with property, not to deal criminally in those cases with Brazilian subjects, and there was, he could assure the hon. Member, nothing inconsistent with the law of nations in the Bill as it stood. The choice was, in fact, between treating the Slave Trade, carried on by the Brazilians, as piracy, or permitting the Brazilian Slave Trade to be carried on to an unlimited extent, or the Brazilian flag from being used by others for the purpose of carrying on the Slave Trade. He should have thought, on the part of the Government and the Crown, that they were grossly neglecting their duty towards the House if they had not made this proposition. When he recollected the addresses which, within the last few years, had been unanimously presented by the House to the Crown, urging it to enforce, by every means at its disposal, existing stipulations with respect to the Slave Trade, he should have thought the Crown and the Government guilty of great neglect towards the expressed wishes of the House if they permitted Parliament to separate without demanding from it merely this, that the jurisdiction of the Vice Admiralty Courts, which had been destroyed by Parliament, should be re-established, when the necessity for their re-establishment had arisen. He had the strongest confidence that this Bill was in conformity with the principles of the law of nations, whilst it was the mildest measure to which they could resort, in order to claim from the Brazilian Government the performance of the stipulations entered into by this country with that Government, not to further the commercial prosperity of this country, but contracted with a view to the interests of humanity, and for the purpose of throwing difficulties in the way of a traffic which constituted the greatest existing blot on civilized nations. With respect to the question put to him by the hon. Gentleman, the Brazilian Minister did, on Monday last, present a protest against this measure. The hon. Gentleman asked him to lay this protest before the House. He certainly could not permit the document, which had been received by his noble Friend, to be an obstacle in the way of passing this measure, on the necessity of which they were nearly all agreed. He was unwilling also to present the protest referred to, without, at the same time, presenting the answer to it. He trusted, therefore, that the hon. Gentleman would be contented with the assurance that these documents would be included in the whole correspondence, which, when in a complete state, would be laid before the House, and that the hon. Gentleman would not seek to avail himself of his willingness to give the information sought for as a reason why there should be any delay with regard to the present measure. He trusted, that the Brazilian Government would soon permit us, as Portugal had done, by en- tering into a Convention, giving a mutual Right of Search, to repeal the present Treaty between the two Powers, and revive between them, instead thereof, something in the nature of a mutual Right of Search.

Report brought up.

Sir R. Peel

moved an additional clause.

On the Question that it be read a second time,

Mr. Hutt

said, he looked upon this Bill as of an important character, and as a measure dealing with a very difficult and delicate subject. If it should hereafter appear, that we had not a sound and legal basis for our proceedings, difficulties should arise from this measure, and they be referred for adjustment, as other difficulties had been, to a foreign Sovereign, if that foreign Sovereign should decide that we were in the wrong, he was sure that such a result would be contemplated by every one in that House with feelings of the deepest regret. He doubted very much, if we were not proceeding, in regard to this measure, somewhat too fast. When the right hon. Baronet stated, that persons of the highest legal authority concurred with him in the view which he had taken of the Treaty of 1826, he very much doubted whether the right hon. Baronet had good ground on which to stand; and if he had not known that the views which he entertained were the views of men better qualified than he was to judge upon the subject, he would not have ventured to say a single word upon the present occasion; but, fortified as he was with the opinions of others, whose opinions he thought entitled to deference and respect, he would venture to suggest whether we might not now be proceeding rather precipitately. The right hon. Gentlemen called their attention to the First Article in the Treaty. There were two points in that Article. The first was, that the two countries should consider the Slave Trade as unlawful; and the second, that Brazilians engaged in that trade should be deemed and treated as pirates. He should have supposed that the natural construction of this Article was, that those found so employed should be deemed and treated by their own Government as pirates, subject to the penalties laid down by their own municipal laws. The executive authorities of the two countries entered into this Treaty. If, by such a Treaty, the subjects of Great Britain, engaged in piracy, should be handed over to the Brazilian Government, to be dealt with according to Brazilian laws—[Sir R. Peel: This Treaty was a marked and peculiar one. It was a unilateral Treaty. It did not make British subjects punishable for piracy. The First Article provided that Brazilian subjects engaged in the Slave Trade should be deemed guilty of piracy.] He was well aware that such was the nature of the Treaty. But suppose we had undertaken to hand over our own subjects concerned in the Slave Trade to the authorities of the Brazils, to be dealt with according to their laws. Now, by the laws of most countries, he believed that piracy was made punishable with death. By a recent Act of the British Legislature, they had, in certain cases, remitted capital punishment as the penalty for piracy. Were they prepared to contend that the British Crown, the executive authority of this country, could hand over a British subject to the Brazilian authorities, to be subjected to penalties in the Brazils, which the laws of his own country would not permit the Government to enforce against a British subject? But if they permitted the Brazils to treat British subjects concerned in the Slave Trade as pirates, and if the municipal laws of that country should be allowed to pronounce against them as such the penalty of death, the Government would then be doing nothing more nor less than handing over British subjects to undergo, in another country, such penalties as the Legislature of their own country had declared that they were not liable to. The Government, by this Bill, asserted a right to treat, to a certain extent, in like manner the subjects of the Brazils in this country—a right which they could not possess in regard to Brazilian subjects, unless they could confer the same upon the Brazils in regard to British subjects. If the constitution of this country conferred upon them the power of thus handing over British subjects to be dealt with according to Brazilian laws, although those laws should conflict with the laws of their own country, it was a subject which deserved their deepest consideration. Such a power appeared to him in every way repugnant to a constitutional government. Lord Aberdeen stated that he was prepared to enforce the law against the persons of Brazilian subjects engaged in the Slave Trade, treating them as pirates. The right hon. Baronet did not ask such a power, and seemed to doubt very much whether he had any ground for making such an appeal to Parliament, and whether such a power would be conformable to the provisions of the Treaty. He regarded the present measure as in every respect a pernicious one, and as a measure by which, instead of securing, we should defeat our own objects. We should have called upon the Brazilian Government to pass a law dealing with the Slave Trade as piracy. If they had refused to pass such a law, Great Britain might have treated their refusal as a casus belli. He felt assured that this Bill would effect no good whatever, and that the attempt to check in this way the Slave Trade, would only aggravate the evils which we were so anxious to eradicate.

Captain Pechell

thought that this Bill introduced anew principle in dealing with all vessels equipped for the Slave Trade, and which were to be adjudicated upon by our Vice-Admiralty courts.

Clause read a second time and added to the Bill; to be reprinted and read a third time.

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