HC Deb 10 June 1846 vol 87 cc196-206

Order of the Day for the House to resolve itself into Committee for the purpose of taking into consideration the Danish claims, was read. On the Motion that the Speaker do now leave the Chair,


said: Sir, although the House on a former occasion consented to the Motion of my hon. Friend (Mr. Hawes), that on the present day we should go into Committee on this subject, I think there are strong reasons why the House should not fulfil the object of the vote which they came to on that day; and I therefore rise at this early stage of the discussion for the purpose of moving an Amendment to the Motion of my hon. Friend. I am sensible, Sir, that in doing so I labour under very considerable difficulties, because I have always found, upon every successive occasion when these claims have been brought before the House, there has been stated, in the course of the debate, some new circumstance apparently calculated to influence the decision of the House, adduced at a period when it is difficult to afford a reply to them—statements are made for the purpose of inducing the House to support the propositions which are made to them with respect to these claims, yet on another day those very statements turn out to be altogether void of a just foundation, and to be such as should not influence the decision of the House. Now, for instance, on the former occasion the hon. Gentleman opposite, in the course of his reply, adduced an additional argument which we had not heard of before the support of these claims. He did not for a moment dispute that there had been a war between Great Britain and Denmark; but he stated that a declaration was made in the same year which cured the previous declaration of war, and restored peace to Denmark; and that, therefore, Great Britain made no attempt to declare the illegality of the capture, because the declaration of war was not issued until November. He impressed, therefore, upon the House that it was just and proper that the House should restore to their former position those persons that had suffered in consequence of the war. But, Sir, was there no foundation for that judgment? Of course, when Copenhagen was surrendered, there was a capitulation which provided for the restoration of such goods as had been taken during the war. The Danish Government itself issued an order in which it was stated that during the war certain regulations were to be observed as to English subjects, expressly nullifying the assertion of the hon. Gentleman, when he wished the House to believe that these capitulations were not made during the war; expressly nullifying the declaration of the Government in seven days afterwards, that the war was then in force, and that certain hostile measures with respect to British subjects were to be taken in consequence of the war. A new case was adduced by the hon. Gentleman on the former occasion, for the purpose of inducing the House to agree to his propositions. Sir, I have thought it my duty on various occasions to oppose an Address to the Crown for the purpose of remunerating the claimants on account of the Danish losses; and I have done so, Sir, first, upon what I consider to be a most important constitutional principle; and next, because I do not admit that there is any justice whatever in the claims which are submitted to the House. Sir, this House has very wisely determined that they will not admit any grant of money, or any remission of duties due to the Crown, unless it come down to the House recommended by the respectful suggestion of the Crown; and they have done it for the best of all reasons, in order that the House may not be imposed upon by specious or plausible statements made in the course of a debate on an uninvestigated claim. The object of that determination has been, that individual Members may not be influenced—that they may not rashly vote away the money of the people to parties who, by means of great exertion, active canvassing, and constant representation of facts more or less accurate, have acquired an influence over the minds of Members, and who persuade them to vote away the public money. And, Sir, this House has laid down a wise rule, and I am not quite prepared to get rid of it by a side-wind proceeding. When the case was submitted to the predecessors in the office that I hold, and when it had been submitted to me also, we each of us, acting under a sense of our public duty—which is not to recommend to Parliament to make a grant of money unless we are satisfied that the grounds on which the claim is made are just—have refused to assent to the petition to this House praying for the granting of these claims. And upon the same principle, I will not willingly consent that the Crown should be placed in the situation of having an address presented to it, when the Crown has not been advised to recommend to Parliament the payment of these claims. Sir, this is a very dangerous experiment. It is, in fact, virtually getting rid of the control which the House has established for the purpose of preventing an undue expenditure of the publie money. It is truly a dangerous experiment, because it would not put a limit to the extent to which these claims may go. If during the war with Denmark you are prepared to give the sufferers by that war the sum of 250,000l., or a quarter of a million of money, because the country with whom you were at war did not make certain regulations as to the capture during the war, there is no telling to what extent these claims may now, and at future times be made; for if the principle of this grant of money is good with regard to Denmark, the principle is good with respect to every country with which you may be at war, whatever their position may be, and however ample their means as to trade; and I say, therefore, that it is the duty of those who have any care for the mode in which the public money is to be expended, to oppose this first step, which shall introduce this new principle that you are to indemnify your own subjects for losses at sea during a war between this and any other nation. Sir, observe I am not here standing up to defend the rights of the Crown. I am defending the rights of the people of this country generally. You tell me there is justice in the claims of these individuals whose property has been sacrificed at sea; and that those merchants, who have lost their ships and cargoes during the war, have sustained a loss for which you are bound to show them some commiseration, and to make them some compensation. Sir, whether it be right or wrong, captures at sea during war are the invariable practice of nations, and that, as a totally different question from captures on land, is not the question now before the House. The right hon. Gentleman concluded by moving that the House will, on this day six months, resolve itself into the said Committee.


said, the right hon. Gentleman the Chancellor of the Exchequer had made a somewhat novel discovery, that, as a question was debated year after year, new arguments were advanced in favour of it. There was a distinct opinion from the Solicitor General that there was no declaration of war on the part of Denmark, which he should take the liberty of reading to the House:— I am of opinion that the instrument of the 16th of August, to which reference has been made, is not a declaration of war, and that it merely orders an embargo on British ships, and not the confiscation of them. There is a distinction between an embargo and a confiscation. It is stated by the law of England and of nations, that an embargo directs only the detention of the property from the owner; and a confiscation takes away the property altogether. There is nothing in the instrument in question which authorizes the taking away permanently any British property. The right hon. Gentleman assumed the justice of the war, and that Denmark declared war. If that were so, all he could say was, that every State paper published at the time was in contradiction to the assumption. The Danish Minister did not leave till the 20th of November. The Danish Government had not confiscated any of our property until we had commenced to confiscate theirs; and negotiations continued long after the time it was asserted the war had broken out. The case of America, which had been referred to, was altogether different, for there no one doubted that a declaration of war had been made. But the right hon. the Chancellor of the Exchequer said there was no surplus; and, therefore, if any payments were made they must come out of the public purse. He was not so sure that no surplus could be found; but even if that were so, why did the Government refer these claims to adjudication, and call on the parties to produce proofs? Let it be remembered that the Government had been beaten by the decision of the House of Commons on five successive occasions. At length the matter was referred to Commissioners. What did they do? They called all the parties before them, and ultimately cut down their claims, 425,000l. to 225,000l. If the claims which they had adjudicated upon and adjusted were legal, and these not, he would admit the force of the opposition now made to his Motion; but they had the opinion of the late Sir W. Follett, that the former claims were not of a legal but of an equitable nature; and these present claims stood precisely in the same situation. The only strong arguments urged against these claims came from his hon. and learned Friend behind him (Sir T. Wilde), and rested on the assumption that there had been a declaration of war. But supposing that there had been a declaration of war, there remained the convention of the 7th of September to be got over. If there had been a declaration of war, why were not seizures made at once, and ships confiscated and sold, instead of being detained pending negotiations? But he would not argue the question on technical grounds: he called on the right hon. Gentleman to take an enlarged view of the interests of British merchants and shipowners, and not to allow innocent parties to suffer on account of the sudden adoption, on the part of the Government, of a policy deemed necessary to counteract the designs of Napoleon at the time when these transactions occurred. It had been stated that a proclamation had been issued, warning parties of the danger of hostilities; but against this was to be set the subsequent declaration of the British authorities, that the two countries were not in a state of hostility, and the continued residence of the Minister at our Court. He trusted that some of the law officers of the Crown would think it worth while to answer his call, and by disposing of his argument render it unnecessary for him to divide.


The hon. Member who had just addressed the House, complained in one part of his speech, that this question had never yet been settled by a fair and comprehensive discussion of it upon its strictly legal grounds; while in another part of his speech he invited the House to look away from the dry technicalities of law to equitable considerations and substantial merits. He was willing to meet the hon. Member upon either issue; and when he attached so much importance to the opinion of his hon. Friend the Solicitor General, which with some ostentation he had read to the House, he must be permitted to inform the hon. Member that nothing was so easy as to obtain from a lawyer an opinion favourable to your own view. For how was a lawyer's opinion taken upon a case submitted? It had become a proverb that you could attach no weight to the opinion of the most eminent lawyer, unless you saw the statement laid before him as containing the facts upon which that opinion had been obtained. Now he (Mr. Cardwell) had had an opportunity of seeing the facts stated to the Solicitor General, and the question put to him. He did not hesitate to say that upon facts so stated, in answer to a question so put, his hon. Friend could not by possibility have given a different answer. And yet the opinion so obtained did not affect in the least the decision at which the House should arrive. Was he without an instance even in this very question of the Danish Claims? For the purpose of dressing up their case, the claimants had obtained a favourable opinion from a lawyer not less eminent even than his hon. Friend the Solicitor General. Sir W. Follett, upon a case submitted to him, had advised in favour of the claims. Did that opinion conclude Sir W. Follett in his higher capacity of a Member of that House? On the contrary Sir W. Follett, having then no connexion with office, and no peculiar regard for the view taken at the Treasury, came down to the House of Commons, heard the comprehensive statement made by the then Attorney General, the Member for Worcester; and what was the course he took? He declined to give his vote in Parliament in accordance with his written opinion as a lawyer. He said, "I advised upon the case submitted to me; but I must act in the House of Commons upon the actual facts and merits of the case as I now hear and understand them." So much then for the weight which the opinion of his hon. Friend the Solicitor General, upon an ex parte case submitted to him as a lawyer, was supposed to have in this discussion. Well, but the hon. Member asked, "How can the House of Commons, which in two former cases has admitted these very claims, now stand upon some legal technicality, and refuse, in the present, the measure of justice they have accorded in the former instances? "He gladly joined issue on this question, for it brought them at once to the vitals and marrow of the subject. The hon. Member insisted that the several claims were identical in principle. Sir James Macintosh and the able jurisprudents upon whose arguments the former claims had been sustained, carefully repudiated the identity; for they knew that in regard to the claims now under discussion there existed a conclusive answer, which, if the identity had been admitted, must of course have been fatal to the whole. Sir James Macintosh therefore drew, as the House was now called upon to draw, the widest distinction between the cases. Sir James Macintosh rested his whole arguments upon this broad principle: "If you, the Imperial Government, fail to secure to your subjects the observance by other nations of the rights of international law, you are bound to obtain from the nation that breaks the law compensation to the persons who have been injured; and if, from any political considerations of your own, you decline to discharge this duty, and to enforce this compensation, you, the Imperial Government, and not the private persons, must bear the cost of those political considerations; or, in other words, you must pay from the Imperial Exchequer the compensation you have failed to obtain from the proper quarter." This was the principle of Sir James Macintosh upon which Parliament had conceded the two former classes of claims. Now let the House observe the real point in issue. Upon the arrival of Lord Gambier in the Baltic, and during his presence there, and subsequently, the Danish Government had confiscated three classes of goods, the property of British subjects, viz.: — 1st, Goods on shore in Denmark; 2d, Book debts owing to British subjects; and 3rdly, The matter now in hand, vessels, and goods on board of vessels. But by the rules of international law a Government is not entitled, etiam flagrante bello, to confiscate goods on shore, nor book debts. In these two cases, therefore, there was a clear invasion of the law of nations. We had not thought it expedient to enforce compensation from Denmark; and, applying the principle of Sir James Macintosh, the House of Commons had granted to the parties injured compensation from the Imperial Exchequer. But how stood the law of nations as to vessels, and goods on board of vessels? That in the event of war, they are the proper subject of confiscation. To sustain his case, therefore, with regard to them, the hon. Member knew he must meet, and he had attempted to meet, the issue—Was there, or was there not, war? Now, he (Mr. Cardwell) thought this was no way narrow or refined, but a wide and substantial distinction. War, or no war, in the two first cases the law of nations had been infringed; in the third, the question simply was—Was there a war, or not? The hon. Member said, at the time the seizures were made there was no war. Now, these seizures were all made subsequently to the date of the document which he held in his hand. That document had been often quoted in the course of these debates. It was issued by the Danish Government on the 16th August; and it referred expressly to the hostilities actually subsisting between the countries. But the hon. Member said this document, if it did amount to a declaration of war, was cured by another document subsequently signed between the parties. Now some hon. Members of that House were present in the fleet of Lord Gambier. They could testify to the occurrences of the 2nd September. The hon. Member for Lambeth said, that before that date there had been on the part of Great Britain no declaration of war. That was not the question. The question was not—Was there a declaration of war?—but, was there war? The campaign of Waterloo was preceded on the part of Great Britain by no declaration of war. Would the hon. Member inform the House what on the 18th June 1815 were the relations subsisting between Great Britain and the French Emperor? Were they the relations of peace, because there had been no formal declaration, or were they not the relations of war? On the 2nd September, 1807, the bombardment of Copenhagen was commenced. What, then, on that day were the relations between Denmark and Great Britain? But, said the hon. Member, admitting war on the 2nd, there was peace on the 7th September. And the hon. Member, with admirable ingenuity inventing a new argument, which in all these numerous discussions had escaped the preceding advocates of the claim—relied upon the convention of the 7th September. Now what was the document on which so much was laid? It was headed "Articles of Capitulation." It purported to provide for the safety of Copenhagen, and to extend only to the Island of Zealand. In truth, its sole object and its sole effect was to save Copenhagen from the impending horrors of bombardment. According to the hon. Member, it terminated the war, and reestablished the relations of peace. What thought the Danish Government upon that subject? He held in his hand another document issued on the 9th September, two days after the former, which disposed of this notable discovery. It was a document issued by the Danish Government, and containing directions as to the conduct to be observed by their officers during what they call "this present war." The opinion, therefore, of the Danish Government as to its relations with Great Britain was beyond dispute. Now what was the opinion of Great Britain? The hon. Member, adverting to the document of the 4th November, had stated with some triumph that this was not a declaration of war—that the advocates of the Treasury had been deceived by an erroneous heading in the Annual Register—and that it was in fact a proclamation of reprisal. He (Mr. Cardwell) cheerfully admitted the correctness of the distinction. It strengthened his argument. The document was not strictly speaking a declaration of war—it was a proclamation of reprisal. It was not, as he had already shown, the custom of Great Britain to issue a formal declaration of war. But when did Great Britain issue a proclamation of reprisal? Was it during peace? Or did not a proclamation of reprisal necessarily imply on the part of Great Britain the acknowledgment of an existing war? Clearly, then, war existed in fact—clearly war was proved to have been recognized as actually subsisting by the official documents of both the belligerent parties. But if war subsisted, vessels and goods on board of vessels, were by the rules of international law the proper subjects of confiscation; and if so, then in respect of the case advocated by the hon. Member, no breach of that law had been committed, and no claim for compensation had arisen. He thought this disposed of the whole case, and was to the hon. Member, both upon the law and upon the wider grounds of equity, a full and conclusive answer. There was, however, further evidence that the Treasury had not been actuated by a narrow desire to resist a claim, when it determined the question of peace and war. In 1810 claims had been made upon the Treasury, the justice of which depended upon a coarser argument; the Treasury, deciding against the interests of the Exchequer, ruled, that there had been a war, and paid the claims. To that decision, so taken, when it told in favour of the claimant and against the public, the Treasury had uniformly adhered. Succeeding Governments and different law officers of the Crown had confirmed the decision with a unanimous voice. Sir James Macintosh, in advocating the other claims, had carefully disconnected them with these, resting as they did upon grounds on which he could not venture to rely. This decision the hon. Member invited the House now for the first time to overthrow. The hon. Member said, this claim had always been kept alive. He (Mr. Cardwell), on the contrary, said, that while the other claims were under the consideration of Parliament, this claim had been advisedly and wisely kept in the back ground. He believed that in 1838, the war having occurred in 1807, the other claims having been brought to a successful issue, the advocates of this claim had first ventured to submit it to the House of Commons. He believed it was unfounded in law—that on the score of equity it had no distinctive merits—that in policy the precedent would be most dangerous, opening the door for appeals, not to the justice but to the compassion of the House, for calamities unavoidably sustained in former wars, at however great a distance of time; and under the obligation of an imperative sense of duty, he without any hesitation supported the Motion of his right hon. Friend, that the House resolve itself into a Committee on this question this day six months.


I wish to call the attention of the House to those Members who did vote upon the question in 1841, and who are not present now. I find that, on the occasion of the division in that year (1841), the ayes were 127, and the noes 96; and I find on that occasion the names of the following gentlemen, who are not present now:—The Solicitor General (Sir Fitzroy Kelly), Sir Frederick French, the Attorney General, Sir Charles Douglas, and Lord Eliot, who is now Lord St. Germans. Where are all the hon. Gentlemen gone? Will no one tell me? But I would say on this occasion that you have spent sums of money in ornamenting Trafalgar-square and other public places; but that it would be much better for you to be just before you become generous. I do look upon this whole transaction as a mean one on the part of the Government. Your merchants, who are paying an income tax of five millions a year, have a right that their property should be protected. Let us pay our debts, and when we have a surplus let us give away. This will be the proper mode of proceeding with our business. I have nothing whatever to do with these claims; I am no way interested in them; but I think them founded on justice, and as such ought to be discharged.

The House divided on the Question, that the word "now" stand part of the Question:—Ayes 58; Noes 85: Majority 27.

List of the AYES.
Aglionby, H. A. M'Carthy, A.
Archbold, R. Mangles, R. D.
Bagge, W. Masterman, J.
Bailey, J. Matheson, J.
Baine, W. Moffatt, G.
Baldwin, B. Norreys, Lord
Barnard, E. G. O'Brien, T.
Baskerville, T. B. M. O'Connell, D.
Beresford, M. O'Conor Don
Bowring, Dr. Ogle, S. C. H.
Bridgeman, H. Ord, W.
Broadley, H. Palmer, G.
Christie, W. D. Pechell, Capt.
Chute, W. L. W. Plumptre, J. P.
Craig, W. G. Plumridge, Capt.
Crawford, W. S. Rumbold, C. E.
Douglas, Sir H. Seymer, H. K.
Duncan, G. Sibthorp, Col.
Etwall, R. Spooner, R.
Evans, Sir De Lacy Stanley, E.
Finch, G. Stuart, Lord J.
Forster, M. Trelawny, J. S.
Hanmer, Sir J. Wakley, T.
Hotham, Lord Ward, H. G.
Hudson, G. Wawn, J. T.
Hume, J. Williams, W.
Inglis, Sir R. H. Wodehouse, E.
Irton, S.
Kemble, H. TELLERS.
Long, W. Hawes, B.
Mackenzie, T. Buller, C.
List of the NOES.
Acland, Sir T. D. Brotherton, J.
A'Court, Capt. Buck, L. W.
Acton, Col. Buller, E.
Adare, Visct. Buller, Sir J. Y.
Arkwright, G. Busfeild, W.
Austen, Col. Cardwell, E.
Barkly, H. Carew, W. H. P.
Baring, rt. hon. F. T. Carnegie, hon. Capt.
Baring, rt. hn. W. B. Connolly, Col.
Barrington, Visct. Coote, Sir C. H.
Bodkin, W. H. Damer, hon. Col.
Bowles, A. Denison, J. E.
Boyd, J. Denison, E. B.
Dickinson, F. H. Law, hon. C. E.
Douglas, Sir C. E. Lincoln, Earl of
Drummond, H. H. Lockhart, W.
Duckworth, Sir J. T. B. Macaulay, rt. hn. T. B.
Dugdale, W. S. M'Neill, D.
Dundas, Adm. Mahon, Visct.
Dundas, hon. J. C. Maule, rt. hon. F.
Escott, B. Molesworth, Sir W.
Estcourt, T. G. B. Neville, R.
Farnham, E. B. Northland, Visct.
Feilden, W. O'Brien, A. S.
Fitzroy, hon. H. Peel, rt. hon. Sir R.
Flower, Sir J. Peel, J.
Forman, T. S. Philips, G. R.
Frewen, C. H. Rolleston, Col.
Gordon, hon. Capt. Somerset, Lord G.
Goulburn, rt. hon. H. Stansfield, W. R. C.
Graham, rt. hon. Sir J. Strutt, E.
Greene, T. Sutton, hon. H. M.
Grey, rt. hon. Sir G. Towneley, J.
Hamilton, W. J. Trollope, Sir J.
Hamilton, Lord C. Troubridge, Sir E. T.
Hayes, Sir E. Wall, C. B.
Heneage, G. H. W. Wellesley, Lord C.
Herbert, rt. hon. S. Wilde, Sir T.
Hope, Sir J. Wood, C.
Hope, G. W. Wood, Col. T.
Houldsworth, T. Wortley, hon. J. S.
Howard, hn. C. W. G. TELLERS.
Jocelyn, Visct. Young, J.
Jones, Capt. Baring, H. B.

Committee put off for six months.

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