HC Deb 08 April 1850 vol 110 cc14-21

On the Question being again put "That Mr. Speaker do now leave the chair,"


, pursuant to notice, rose to call the attention of the House to the illegality of reprisals when made by officers in Her Majesty's Navy without the authority of an Order in Council. He should begin by referring to the blue book which had been printed, containing the correspondence relating to certain claims of British subjects upon the Greek Government, and which had recently led to unpleasant results. He did not approach the subject in a spirit hostile either to the position taken up by the claimants, or to the policy which had been assumed by the Government on their behalf. On the contrary, he was satisfied that it would have been a national dishonour if the Government had remained inactive, and had not taken up the claims of those parties, and done their best to obtain redress. What he complained of was the informality of the procedure. Under the date of the 30th of November, 1849, he observed a letter he might call a duplicate, for the two were nearly in the same terms, from the noble Lord the Foreign Secretary to Admiral Sir William Parker, and to Mr. Wyse, in which the noble Lord stated that he had been commanded by the Queen to cause the requisite instructions to be given to Sir William Parker to put himself in commnnication with Mr. Wyse on the subject of these claims; and if the proper satisfaction were not given, then, after concert with Mr. Wyse—let the House observe this—Admiral Parker was to have recourse to such measures as he might think best calculated to obtain satisfaction. It appeared by this letter, which was the only document, as the noble Lord himself had informed the House the other night, which contained any instructions on the subject, that Her Majesty had been advised to depart with her exclusive prerogative in favour of Admiral Parker—that awful and tremendous prerogative of war or peace—which, according to the constitution of the country, could only be exercised by Her Majesty herself in Privy Council. It might be objected to him that this was mere form; that Her Majesty's commands, whether signified through the Privy Council, or through the Secretary of State, were equally binding upon those to whom they were addressed. But it was not a question of form—it was of far greater consequence; for upon this question, whether the constitutional practice of former days should be adhered to, or departed from, depended the still graver question whether it should be left to a single man, although a Secretary of State, to plunge this country, by his own act, into war and collision with the other Powers of Europe. Now, before the consent of the Privy Council could be had, that Council must be assembled, and then it would rest with the colleagues of the noble Lord, and with those who, although not his colleagues, were members of the Privy Council, to say whether all practical means had been exhausted for a satisfactory adjustment of the dispute, whether all the well-understood and customary forms of international intercourse had been observed, and whether the instructions to the British admiral had been or not improvident. Some persons were of opinion that a new tribunal of national arbitration should be formed for the adjustment of disputes between this country and others. He gave no opinion on that; but he contended that the constitution of England had already provided tribunals for the settlement of differences such as this, which had gone far to place us in a state of war with Greece, and with the two Powers associated with us in the protectorate of Greece, namely, Russia and France. The noble Lord had admitted this was a case of reprisal, not of blockade; but the case of reprisal was closely allied to the case of war. Nay, reprisal was war, the only difference being, that war was perfect hostility, while reprisals might be carried on only so far as to create a state of imperfect hostility. All writers and authorities agreed that there was no other difference between war and reprisals; and by our law the same power only to which was committed the office of declaring war, was vested with the office of making reprisals. The same formalities, too, that were necessary to the making of war, were necessary to the making of reprisals. Whether the ship was a Queen's ship, or one sailing under letters of marque, was perfectly immaterial; in either case all the formalities must be observed. The same necessity also that required proclamation of war, required proclamation of reprisals. All the same con- ditions, in fine, were necessary in each case, and the object was to ensure that a public and clear notice should be given to the foreign State. It was only of late years that we had begun to depart from these wise and wholesome ordinances; but every case of departure was a crime. He must, however, absolve the noble Lord from the imputation of being the first or only Secretary of State who had done so. The noble Lord had certainly substituted for the constitutional authority of the Privy Council the unauthorised interposition of the Secretary of State; but he (Mr. Anstey) was sorry to say that the Earl of Aberdeen had been guilty of the same deviation in the affair of the river Parana. He (Mr. Anstey) therefore drew no distinction between the noble Lord and his predecessor in office. It would be said that these were cases in which the Secretary of State's warrant was a sufficient authority. But, unless war was actually raging, when extraordinary reprisals might be authorised and revoked by the mere warrant of the Secretary of State, no Secretary of State, no Minister of the Crown, not even the Lord High Admiral himself, could so act without the authority of the Privy Council. They could not otherwise authorise an act of violence, whether of war or reprisals. The one authority was Her Majesty the Queen in Council; and that they pretended to set aside, and, with it, one of the wise checks provided by the constitution against hasty measures of hostility, and for preventing Ministers from suddenly and unadvisedly involving the country in war. The positions he had laid down did not depend upon speculative opinions given by writers on international law, nor were they merely to be found only in the obsolete works of the lawyers and jurists of ancient days. Whenever there had come any question of this kind before our courts in ancient or in modern times, the same anxiety might be traced on the part of the Judges to see that all the forms had been observed. But then the penalty was not borne by the Minister, who was not warranted in giving the order, but by the unfortunate instrument which had carried that order into execution; and if Admiral Parker returned to this country, the parties whose goods have been seized under the instructions of the noble Lord, which were not warranted by an Order in Council, or proclamation under the Great Seal, would have a right of action against that unfortunate and gallant officer, and might recover heavy damages. These being the constitutional rules, and there having been this departure from them, he asked the noble Lord or any hon. Member who meant to defend the course taken by the noble Lord, to say by what length of practice, or by what extent of error, was this departure to be excused? He looked in vain for an instance of the same kind further back than the last ten or twelve years, and he found that it was in proportion as the old skill of the diplomatist was dying away, and diplomacy becoming obsolete, these errors became more frequent. He inferred, therefore, that they occurred not from design but from ignorance. He did not accuse the noble Lord of ignorance of diplomacy, but he observed that ignorance of it existed above him and around him and beneath him; and he thought that the place of Secretary of State offered strong temptation to the holder of it to increase the power and influence belonging to his office, and then whatever one Secretary of State had done, another was always ready to imitate if it tended to confirm his strength and power. But when he referred to history he found how careful our forefathers had been to observe the forms and practices which had come down to them from past days, and how their examples in that particular were subsequently confirmed by the decisions of Lord Stowell, Sir N. Tindal, and other great men of our times, who declared them to be of obligation for ourselves. In the time of Charles II.—a period not fertile in constitutional precedents, but honourably distinguished from our own age in this respect, that no Secretary of State then arrogated to himself the power belonging to the Sovereign only, of declaring war—these forms were strictly observed. The same course continued to be taken down to the renewal of the revolutionary war in 1802. In no case, whatever the provocation or emergency, had reprisals abroad or embargoes at home been attempted, except by warrant of the Privy Council, or proclamation under the Great Seal. And this brought us down to the peace of 1815, at which what he might call the modern period began; but even in the course of the modern period he found the influence of tradition still so strong, that so lately as 1840, when the noble Lord was Foreign Secretary, and when a case of reprisals was about to be set up against the Emperor of China, the noble Lord, for the purpose of sanctioning the hostile equipment that had been ordered against that Power, adopted the formality of an Order in Council. Yet, nothing beyond the mere formality having been adopted, and the substance being wanting, it proved insufficient afterwards to protect in courts of justice those who had obeyed it. The hon. and learned Gentleman here cited cases in support of his argument, one being a case in the time of Charles II., of a demand made against the Dutch for the confiscation of two English vessels at Batavia, and in which there had been not only an Order in Council, but a proclamation. The noble Lord would probably say, in those cases of claim against the Greek Government, that there had been application after application by the Crown for redress, but that no redress followed. But it was precisely because there had been this forbearance during the long period for which these claims had been allowed to sleep, it was this long impunity granted by our Government, which had caused the Greek Government to suppose that in our late demands we were not sincere, to assume that the British Government were equally insincere in the last as in the former applications, and that if they resisted, as they had done before, their resistance would be again followed by the like impunity. One of these claims was as old as the 20th November, 1839, and had been allowed to sleep till December, 1849, a period of ten years. Two other claims, dated in 1846, and no answer had yet been received regarding one in 1847. There were periods of two, three, and four years, between the last communication on our side and the last on the side of the Greeks, and nothing had been done. Why, was it to be supposed that the Greek Government would be more intimidated by our peremptory tone in the year 1850, than at any time since 1839, during which time they had been doomed to bear the official ire, not only of the noble Lord, but the Earl of Aberdeen? It was not fair to the Greek Government to depart, in this instance, from the old forms of diplomacy, which even by that piratical and semi-barbarous State would have been perfectly understood; and he believed that if they had been observed, there would have been no occasion to resort now to the costly and dangerous method of reprisals. Before concluding, he begged to dissociate himself from all the unfair observations which had been made elsewhere upon these claims. He held that there never had been claims more founded in justice. He was not attacking the present or any other Government in particular, nor endeavouring under colour of the irregularity of procedure to impeach the justice and validity of the claims themselves. But he trusted that some assurance would be exacted by the House, that our future procedure in such cases would be conformable to the constitution and the law, and not to these recent and unworthy precedents.


Sir, I am sure nothing could be fairer than the manner in which the hon. and learned Gentleman has brought this legal question before the notice of the House. He has, I am bound to say, entirely separated it from anything of a political character; and he has, in that spirit, stated his opinion upon its legal and constitutional bearings. All I can say is, without pretending to follow the hon. and learned Gentleman into the historical details he has given upon this matter, that I am advised by those by whose legal opinion I consider it my duty to be guided in my official conduct, that no Order in Council is necessary for effecting reprisals, so far as they have been effected in this particular instance—that is, for the detention of vessels as pledges for obtaining redress from the foreign Power upon whom demands for redress have been made. I am quite ready to concede to the hon. and learned Gentleman, that if it were necessary to go a step further, and to condemn or confiscate and sell the vessels, for the purpose of realising the reprisals, an Order in Council would be necessary. I am quite ready to concur with the hon. and learned Gentleman that an Order in Council would be necessary for the purpose of establishing a commission to condemn and sell the vessels; but I stand upon the advice which has been given to me, and I am perfectly convinced in my own mind that the advice is sound, that, for the purpose of seizing and detaining vessels with a view to future proceedings, it is sufficient there should be an order from the responsible officer of the Crown, being the Secretary of State, signifying the Queen's pleasure, as Sovereign, to the Admiralty, in reference to the orders to be communicated to the officers whose duty it may be to carry them into execution. I can assure the hon. and learned Gentleman he is mistaken in supposing that if these measures should, as I trust they may, lead to a satisfactory result, and the vessels should be released without the necessity of confiscation and sale, the parties to whom any of those vessels belong would have any good ground for legal proceedings in the courts of law of this country against any of the officers employed in the execution of these orders. I am advised, and I am convinced of the perfect soundness of the advice, that the officers so executing the orders of the Crown would be home harmless by showing that they did those acts as naval men in execution of the orders they had received. I believe that was distinctly laid down in the case of Captain Denman. It is perfectly constitutional as well as legal, that an officer is bound by the orders he receives; and it is sufficient for him to show that the acts he has done were ordered to be done beforehand by the Crown, or were sanctioned subsequently by the department from which the orders were received with the sanction of the Crown. I must, therefore, notwithstanding the opinions of the hon. and learned Gentleman, retain those I have acted upon. I have acted upon the opinions of the law officers, upon whose opinion it was my duty as a Minister of the Crown to act; and upon that legal opinion, I am convinced that that which has been done is strictly in accordance with the law and constitution of the realm.


said, it would be convenient if the noble Lord would inform the House at this period what were the state of the negotiations with reference to our differences with Greece, or whether there was any prospect of their termination. The noble Lord was aware that, under existing circumstances, the trade of the country was materially interfered with; and it was very desirable, on that account, to know what prospect there was of a settlement.


There is nobody in this House who takes a deeper interest in the prosperity of the kingdom of Greece than I do. It fell to my lot to take part in those proceedings which led to the emancipation of the Greek nation, and to Greece being made an independent State; and upon every ground, I can assure the hon. Member, it has been exceedingly painful to me to feel it my duty to be the organ by which any measure could be adopted that would in any way press upon the Greek nation. But it is not against the Greek nation, but the Greek Government, that we have been obliged to take these steps. The last accounts we had from Greece stated that Baron Gros, who is employed by the French Govern- ment as the organ of their good offices, was at Athens, and was employed in investigating those matters with regard to which it is his duty to act. No result at that time had taken place; and it is scarcely possible, considering the shortness of the time he had been in Athens, that I should be able to give my hon. Friend any distinct answer to his question.

Subject dropped.