§ MR. MACAULAYsaid, he rose to call attention to the several Addresses to the Crown by this House, and the Treasury Minutes issued thereon, empowering the Commissioners for Danish Claims to receive, examine, and judicially determine the claims of certain British subjects for losses arising out of the confiscation by the Danish Government of ships and cargoes in the year 1807; to the fact that after such losses had, in pursuance of Her Majesty's commands, been judicially determined, and the Commissioners' adjudication and Report thereon had been presented to the House, the House of Commons, by its Address, 10th June, 1841, prayed Her Majesty to advance to the claimants the amount of the losses so adjudged, with the assurance that the House would make good the same; to which Address Her Majesty returned a favourable answer; but that, nevertheless, such claims remain unliquidated; and to the Petitions of Thomas Ward and others (Presented 26th April, Appendix to Public Petitions, No. 524, also Parliamentary Paper, No. 257, of the present Session), fully setting out the facts, and praying for redress. The persons who urged these Danish claims were the relatives of those whose ships were confiscated on the occasion of the seizure by the English of the Danish fleet at Copenhagen in 1807. The hon. Member said that the subject had been so repeatedly discussed in Parliament, and were so familiar as matters of history that he would not attempt to open the case in any detail. He would only remind the House that an expedition was sent to Copenhagen by the British Government in August, 1807, and possession of the Danish fleet was demanded as a matter of precaution, it being suspected by the British Government, acting 817 upon secret information, that there was an understanding between the Emperors of Russia and of France to take possession of that fleet and use it against this country. The object of the expedition was avowedly kept secret while it was being fitted out, and the Proclamation addressed to the Danes, on its arrival in the Danish waters, was couched in terms, not of hostility, but of friendship; and it was distinctly stated on the part of the English that it was for their own safety that they made the demand. The Danish Government refused the demand made upon them to deliver up their fleet—and, indeed, it was a demand which was scarcely, if at all, to be justified; and on August 16 they did that which was the most ordinary act of retailation—they ordered an embargo to be laid on British ships and property within their reach. On the other hand, on the 25th of August, by an Admiralty order, an embargo was laid by the British Government upon all the Danish property in the harbours of Great Britain, amounting to 850 ships. Ultimately that embargo was turned into confiscation, and the proceeds of the sales amounted to £1,300,000, which was paid into the Exchequer. Out of these proceedings sprung the claims of those who now prayed the House to consider their case. The case of the claimants was that the proceeds of the confiscated property ought to have been applied, in the first instance, to indemnifying those innocent sufferers, whose losses had been occasioned directly by the acts of the British Government. While the preparations connected with the Danish expedition were proceeding, not only was its destination kept secret, but licences were granted to English ships in the months of July and August to proceed to the Baltic; and which sailed, therefore, without any suspicion that hostilities were about to be commenced, and he believed there was no instance of an insurance being effected upon them. If the English Government thought the English ships in the Baltic were in danger of capture, it was their duty to have left a sufficient convoy to protect them; but, instead of this the whole English fleet left the Baltic, and many English merchant ships were snapped up by the cruisers of the Danish Government. If it was necessary that the Danish fleet should be seized under circumstances so peculiar, and if such reprisals were rendered inevitable on the part of the Danes, it was not right that private persons should be the sufferers, 818 and the State should make good to them the loss brought upon them by a step deemed necessary for the safety of the empire. He was not aware that any legal refinements could be applicable here; but the case should be decided upon the principles of natural justice. This House had intervened time after time in favour of these claims, while the Crown had expressed its willingness that they should be met if the House would furnish the necessary funds. After the return of the English fleet from the Baltic, negotiations were still going on with the Danish envoy, who remained in London till the 16th of November—the bombardment of Copenhagen having taken place on September 7—and up to the middle of November all the acts done were committed without any expression of a determination to proceed to hostilities, unless an arrangement should be come to. It was not till November 4th that the Act for reprisals was issued in this country, and that was considered as the day when the war between England and Denmark commenced. The next step was to appoint a Commission to realize the enormous amount of Danish property on which the embargo had been laid. About this time the Crown Prince of Denmark was addressed by certain Danish merchants who thought their property would be endangered if the Danish Government maintained their embargo on British property. In his answer, dated the 27th November, the Crown Prince stated that the measures of the Government amounted to merely a sequestration of the property, so as not to lead to a condemnation of Danish property by way of retaliation. By this answer the Crown Prince limited the action of the Danish Government to a mere sequestration of the property of English merchants, in order that by so moderating their own measures the English Government might be induced to moderate theirs. He would now call attention to the manner in which those claims had been treated from 1807 up to the present time. In 1808 Lord Sidmouth brought them before the House of Lords in the form of Resolutions—[Hansard's Debates (First Series), vol. x., p. 645]—in which he called in question the justice of the proceedings —that there was neither right nor honesty in the seizure of this property—still less in the confiscation—unless it were done for the purpose of compensating those of our fellow-subjects who had suffered by the Danish confiscation. For a period of twenty years afterwards the English sufferers were inces- 819 sant in their applications to the Treasury for compensation. It was the seizure under the embargo of the 16th August which formed the ground of those claims, and the claims put forward for compensation arose in three different ways—First, in respect of book debts due by Danish to English subjects; secondly, in respect to goods on shore belonging to English subjects; and thirdly, in respect to the property of English merchants in the shape of ships and cargo afloat. In 1834 the question was brought before the House of Commons by Mr. John Parker in the shape of a Motion for the appointment of a Committee. Lord Althorp, who was then Chancellor of the Exchequer, expressed himself very strongly against the right and title of those persons being considered by the Crown at all, but the tone of the House on that occasion was evidently in favour of something being done in the matter. Lord Althorp seeing that, induced Mr. Parker to withdraw his Motion, on the promise that the Government would take the matter into their consideration. The Executive took action by the appointment of a Commission. Several Treasury minutes followed, in which the Government expressed a readiness to carry out the wishes of the House, coupled, however, with a determination not to go beyond the limits prescribed by Parliament from time to time. Lord Althorp directed the Commissioners to inquire into the claims arising in regard to book debts and goods on shore, and drew a distinction adverse to the claims of those who had suffered from the seizure of their ships and cargoes afloat. The first Treasury Minute, dated November 4, 1834, authorized the Commissioners to receive, examine, and classify all the claims that might be brought before them, in order that the House of Commons might have the fullest information whenever its attention should again be drawn to the subject. The Commissioners were required also to bear in mind that all the Government undertook to do was to afford the parties the opportunity of establishing the fact of their losses, and that the Lords of the Treasury were not pledged to recommend the grant of compensation to any of them. Upon the issue of that Minute the Commissioners proceeded to adjudicate on the amount of book debts, and goods on shore, and between 1835 and 1837 Votes for compensation to the amount of £280,000 were passed by Parliament. The Commissioners, however, declined to examine beyond those 820 claims for book debts and goods on shore. In 1838 Mr. Cresswell (the present distinguished Judge) brought before the House of Commons the case of the claimants in respect to the ships and the cargoes, and moved an Address to the Crown praying that the Commissioners might examine into their claims. On that occasion the whole merits of the matter were most amply discussed, and after two or three divisions the Motion for the Address was carried, and a favourable answer was received from the Crown, consequently the Government referred the examination of those claims to the Commissioners, and passed a Minute, dated June 22, 1838, desiring the Commissioners to report on the subject, in order that the Report might be laid before the House of Commons. Under this reference the Commissioners did not conceive themselves to be at liberty to proceed to a judicial investigation of the matters, but made a rough estimate of the claims, which was of no use to any one. After this, Mr. Cresswell, in 1839, moved another Address to the Crown praying that the Commissioners might be directed to proceed to a judicial investigation, and after one division the Address was carried; and on the 5th of April a Minute was passed by the Government directing the Commissioners to make an adjudication on each individual claim, but giving notice to the parties that they would not be bound by this adjudication to bring forward any Motion in the House of Commons for a Vote of money. Step by step the Government had, on the part of the Crown, acceded to each thing done by the House of Commons, avowing at the same time that they would go no further if they could help it. On the occasion of the Address of the adjudication of the claims being carried, Mr. Spring Rice, then Chancellor of the Exchequer, stated that he objected to the House requiring a judicial inquiry into the claims unless the House came to some Vote involving the grant of money; and he advised the House not to put the claimants into a fool's paradise by making them suppose that they would be compensated, when all that they would get would be the right to enter into an expensive process, which would end in nothing to them. The language of the then Chancellor of the Exchequer was in strict conformity with that which the Government had used in various Minutes. The adjudication, however, took place, and on the 12th of May 1840, the Commissioners presented their Report; but the Government took no steps in conse- 821 quence of it. Thereupon Mr. Cresswell in 1841 moved an Address setting forth that if the Crown advanced to the claimants the amount of their respective claims, as ascertained by the Commissioners, the House would make good the same; and the answer to the Address expressed the readiness of the Crown to give effect to the wishes of the House whenever the means should be provided by Parliament. He asked the House whether that was not an acquiescence, as far as the Government were concerned, in the justice and propriety of fulfilling the prayer of the Address? The subject had since the date of that Address and answer been mooted in the House of Commons three or four times, but he was not responsible for the course which had been taken with respect to it on those occasions. Indeed, he very much doubted whether, the House having once addressed Her Majesty in the language which he had quoted, and having received a reply such as he had read, it was open to them to proceed to move another Address in the same form, and he, for one, should have expected that a Motion rather would have been made to the effect that, owing to the different measures which had been taken by the Crown on the one side, and the claimants in question on the other, the public faith had become effectually pledged to the liquidation of the claims of the latter, not as a mere matter of grace or favour on the part of the Crown, but by reason of the action of those responsible in the conduct of a suit on behalf of the State, as against those individuals by whom the claim on it was made. He did not know of any reason which had ever been urged for the non-fulfilment of these claims, except an argument that was used some years ago by the right hon. Gentleman the present Chief Secretary for Ireland (Mr. Cardwell). That right hon. Gentleman contended that as the seizure of the ships was not illegal, but was a fair act in war, therefore, the petitioners had no claim to compensation. But that was a total misapprehension of the case. The confusion arose in this way. There were two classes of seizures. There was first the ships afloat, and there was next the book debts and the goods ashore. In 1835 the Government agreed to give compensation for this latter class, because they said their seizure was illegal, and contrary to the law of nations; and as their predecessors had omitted to claim compensation from the Danish Government at the proper time they felt 822 bound to make that compensation good. But he must observe that there was no written or public law which drew any distinction between the legality of seizing ships afloat and book debts and goods ashore; and the British Government in 1808, having their attention drawn to the matter, decided that no distinction could be drawn between the two cases. But whethere that were the case or no with the goods ashore, the present petitioners did not rest their claim on the illegality of the seizure, but on its high legality—on the ground that the Danes were justified in the seizure by the extreme step our Government had taken—very possibly for its own salvation; but still, according to the known principles of law, that the Government which gave occasion to the wrong was answerable for the wrong, therefore, the British Government ought to make good their claims. This was the view taken twenty years ago, and less, at least by two Gentlemen who were now high in Her Majesty's Councils, by that severe economist, Joseph Hume, and by Sir Stratford Canning, who was connected with the diplomatic transactions of the period. He did not propose to make any Motion, but he had great hopes that the renewed consideration of this matter by the Government would lead to a solution favourable to that which he believed to be a thoroughly honest and a thoroughly just claim.
THE ATTORNEY GENERALsaid, his hon. and learned Friend had brought this subject before the House with great ability and in a very temperate spirit; but he had concluded without making any Motion. Having, therefore, no tangible issue with which to grapple, his observations in reply must necessarily be more general than they might have been had any precise Motion been submitted to the House. The circumstances of the case certainly suggested that it might be desirable to consider how long and to what extent questions of this kind could be seriously entertained. In courts of justice it was found necessary to impose some limitation of time by express enactment. And, although no mere lapse of time could be set up as a bar to any inquiry the House might think fit to enter upon, yer, when a matter so old as this, dating so far back as fiftyseven years ago, and which had slept profoundly for ten years past, was again brought before the House, it was incumbent on those who invited attention to it to show that a clear and decided case 823 of injustice was made out. Now, he contended that the course adopted on this subject by successive Governments had been perfectly fair. Did his hon. and learned Friend venture to say, after the lapse of time that had taken place, and having regard to the facts and legal considerations attaching to them, that this case was so free from doubt and difficulty, and so clearly in favour of those whose claims he advocated, that it ought to be seriously entertained? His hon. and learned Friend had admitted fairly that there was a state of war, and that the Danes had belligerent rights. If so, the case of these claimants was untenable; for one of the most obvious of belligerent rights was the right to seize and confiscate the ships and property of the enemy afloat. His hon. and learned Friend was, therefore, driven to another argument—he would not call it another expedient. His hon. and learned Friend was driven to argue that there was something unjust and not to be defended in the conduct which the Government of that day pursued towards Denmark in commencing the war, and upon that absence of justice, and that alone, he had based his appeal to the House. The Circumstances of the capture of the Danish fleet were well known. It was the intention of this country, suddenly and without notice, to seize the fleet of Denmark, so as to make it impossible that that fleet could be made use of by an enemy. It was on that seizure of the fleet that the present case arose, and the argument his hon. and learned Friend relied on was that the proceedings of the British Government were unjust, and, therefore, these British subjects were entitled to compensation out of the public funds. It would be most alarming if the House were to act upon such a view, because it came to this —that a war being undertaken by the competent and responsible authorities of the country, involving, as any war with a naval Power of any strength would do, great injury and ruin to many of the merchants of this country by the confiscation of their property afloat, that House might 50 or 100 years afterwards be called upon to vote money out of the taxes of the country by way of compensation, because the persons whose vessels had been captured and confiscated or those representing them, thought that the British Government had been wrong in commencing the war, or in not submitting to requirements by yielding to which it might have been avoided. That was an entirely novel proposition, and 824 one for which there was no authority whatever. This, however, was the substance of his hon. and learned Friend's argument, and but for some incidental observations which he had made, he should hardly have thought it necessary to trouble the House further upon the subject. His hon. and learned Friend had endeavoured to make out what in courts of law was called an estoppel, and had argued that, as the Government had paid claims No. 1 and No. 2, they were bound to pay No. 3, and ought not to be heard in refusal. That argument implied that No. 3 stood upon precisely the same footing as No. 1 and No. 2, which was by no means the case. Claims No.1 and No. 2 were made in respect of the confiscation by the Danish Government of book debts and goods on shore. This claim, No. 3, however, was made in respect of the confiscation of ships and cargoes afloat. It had not been laid down as a rigid and inflexible rule that book debts and goods on shore were not liable to confiscation; but that description of property, and ships and cargoes afloat, had been treated by writers on international law and belligerent rights in a very different manner. No writer of authority denied the right to confiscate the ships and cargoes of an enemy's subjects afloat; but great doubts had been expressed whether the seizure and confiscation of book debts and goods on shore were, under any circumstances, warranted by the law of nations. Vattel laid it down that a Sovereign declaring war could not retain in his dominions the subjects of the enemy, or their effects; and Mr. Wheaton said that it appeared to be the modern rule of international usage that the property of an enemy found within the territory of a belligerent State, and debts due to his subjects by the Government or by individuals at the commencement of hostilities, were not liable to be seized and confiscated as prize of war. In the two earlier cases, therefore, the Government was justified in contending that the Danish Government had violated the fundamental principles of international law, and a reasonable claim for compensation was made out in turn on the part of the British against the Danish Government, and by British subjects against their own Government. No such argument, however, could be advanced in favour of the third claim, which was now revived. It had been said that the claim might safely be acceded to, because the war in which the petitioners suffered broke out under 825 very singular circumstances, and that a similar case never occurred before, and was never likely to occur again. But the establishment of a precedent involved the acknowledgment of a principle, which might be applied to other cases, even where the circumstances were somewhat different; and if the Government yielded in the present instance they could not, in any future war, consistently refuse to entertain the claims of sufferers who maintained that, as an unjust war was the cause of their losses, they were entitled to compensation. A most mischievous precedent would thus be created, quite at variance with the principles of international law. War, no doubt, was often the cause of heavy losses to individuals for which the State made no reparation, and the source of great gains which the State applied to its own purposes. It could not be maintained as suggested by the Petition before the House, that the State was bound to compensate the losses of its subjects out of the prizes of war. Such a proposition was as novel as it was untenable. Fifty-four years having elapsed since the occurrence of these events, and the parties interested having been engaged for at least forty-four years in agitating their claims, it was not surprising that the subject had been frequently before Parliament. Sometimes, no doubt, Parliament had been disposed to favour the claim; but it was to be observed that, on the admission of the petitioners themselves, the last three applications to the House had been unavailing. Having for ten years been allowed to slumber, the question was now again brought forward; but he believed that hon. Members would prefer to be guided by the more recent decisions of the House, rather than by any which might have been come to at a remote period, under circumstances which were now not very well understood.
§ MR. LOCKEsaid, that the arguments of the Attorney General amounted in fact to an attempt to set up the Statute of Limitations on behalf of the Government; but he hid not think that that plea would hold good in such a case in any court of law; and he (Mr. Locke) was not aware of any precedent for saying that the House was prevented from remedying an injustice because it had been committed more than a certain number of years ago. The Attorney General said, there might be an equitable right on the part of persons who had goods on shore; but it seemed extraordinary that for twenty-seven years those 826 claims which were now admitted to be just should have been resisted. It might be the law of nations to make compensation for goods landed on the quays, and not for goods afloat; but it was not common sense, and he did not believe that it was the law of nations, as he presumed that all laws were founded on common sense. The Attorney General wished the House to suppose that all seizures of cargoes in ships afloat were seizures of cargoes on board ships on the high seas; but against his bare assertion was the fact that the Commissioners adjudicated on these claims, and set down the sums of money to which the claimants were entitled opposite their respective names. He believed that the right principle to be recognized in this case was that as the nation had committed a trespass, the nation, like an individual, should be held answerable for all the results of its illegal act. The Attorney General had not said a word in vindication of what he would venture to call this marauding expedition. By the treaties which existed in 1807 between England and Denmark merchants were to have six months' notice of war. No notice was given. A secret expedition was despatched, and those who suffered from that illegal act were clearly entitled to compensation. The English merchants did not ask to be recouped their losses out of the taxes of the country. Independently of ships of war the English Government seized Danish vessels which realized £1,300,000. In 1809 they paid out of it in prize money £348,261. In 1835 claimants classed as A and B were compensated with £286,000, and the Government put into their pockets £665,739. In 1841 the Chancellor of the Exchequer stated that the adjudication ought to be carried out upon just and honourable principles. The House of Commons voted an Address to the Crown upon the subject, and the Queen returned a favourable answer; all that was wanting was a Vote of the House of Commons. A dissolution of Parliament occurred, and if he were told that with the honour of the country pledged to a certain course a new Parliament was free from responsibility, all he could say was that it was a blot upon the Constitution. He thought that the answer of the Attorney General to-night did not at all meet the statement of his hon. and learned Friend the Member for Cambridge, and that no subsequent Government or subsequent House of Commons ought to repudiate the decision which a former Par- 827 liament conceived to be honourable and just.
§ THE CHANCELLOR OF THE EXCHEQUERsaid, that there were one or two points with regard to this subject to which he wished briefly to call the attention of the House. If, as had been stated, his hon. and learned Friend the Attorney General had rested his case simply upon the Statute of Limitation, he did not think that argument would have been a very unsatisfactory ground for resisting the Motion; for it was a very serious matter that claims of this kind should be made without limitation of time and after a long course of years, when the impossible had changed hands and it was impossible to trace the proprietary rights. But it was not the Statute of Limitations simply or mainly on which his hon. and learned Friend took his stand—it was the Statute of Limitations plus the important fact that upon three occasions consecutively the House had distinctly refused to entertain these claims for compensation. When these claims were first raised, the House, no doubt, received them with considerable favour; but it had taken a less and less favourable view of those claims as the matter had been prolonged, and in the year 1851, when a very formal application was made by the hon. and learned Member for Sheffield (Mr. Roebuck), the number in favour of the claims was 49, and the number against them 126, or nearly three times those who voted in the minority. He thought this was a great fact in the consideration of the case. His hon. and learned Friend (Mr. Locke), said, he could not see the justice of making a distinction between the seizure of goods afloat and the seizure of goods on shore, and thought it better to fall back on common sense, whatever international law might say on the subject. It was true that nothing could be right which was at variance with common sense; but when they came to argue this controverted matter it was so difficult to discover where the common sense lay that every gentleman was firmly convinced that common sense was ranged entirely on the side which he himself espoused. In the difficulty, therefore, of discovering the whereabouts of common sense in these cases, the Attorney General thought it was not an unsafe course to fall back upon what was called the law of nations, which really meant the general practice of the civilized world, and be guided by the concentrated wisdom of those en- 828 gaged in reducing the practice to rule. There could not be a higher authority than Sir James Macintosh, and what did he say about the distinction between goods afloat and goods on shore? Sir James wrote—
I do not say there is a difference in abstract reasoning as applied to either, but that there is a difference according to the established practice of European nations. Maritime plunder is not in its nature as injurious as plunder on land; and in all European states there is a recognized difference between the seizure of property on the water and its seizure on the shore.The hon. and learned Member for Southwark, however, said the Government had invented this distinction twenty years after the fact. He denied the Government were entitled to the invention. It belonged to the friends of the Danish claims, who put forward first those portions of their case on which they felt themselves strong, and declined to encumber themselves with that portion on which they felt they were weak. Then he understood his hon. and learned Friend to fall back upon the doctrine that the war made by great Britain in this case was to be distinguished from other wars by its injustice. He protested entirely against their occupying that ground, because it seemed to him nothing could be more destructive than to introduce into the practice of the House retrospective discussions as to the propriety of wars long gone by, and to endeavour to classify them as having been more or less unjust, and then to found on these distinctions claims for compensation for individuals who had suffered by them. The allegation was that there was no regular war at the time. It appeared that on the 2nd of September the British Government had laid an embargo on Danish vessels, and the doctrine of Lord Stowel with respect to such an embargo was that if instead of an accommodation following the embargo the differences continued and were inflamed into hostilities, in that case the hostilities had a retrospect effect upon the embargo itself, and the war must be held to have commenced from the date of the embargo. All acts done subsequent to the embargo must be judged by the laws of war, and no claim, therefore, could arise for compensation in respect to any act of the Danish Government which was thus justified by the law of nations. With regard to the answer to the Address in June, 1840, to which reference had been made, he (the Chancellor of the Exchequer) was ready to make this amount of admission, namely, the terms of the answer 829 had something of a peculiar character. He believed the true explanation of the terms used was to be found in the date of the answer. It seemed the answer to the Address was made by a Government which had been greatly distinguished by its energy in the work of legislation, but which was unhappily at the time in articulo mortis. In the same month a vote of want of confidence had been carried, and it only held office on the terms of dispatching the necessary business in order that an appeal might be made to the country. Under those circumstances it was natural that the Government should decline to bind their successors, but should have left them free to advise the Crown to whatever course they might think fit. It did not lie with the House of Commons alone to award compensation to these parties. By the salutary rule and practice of the Constitution there must be the concurrence of two authorities, the Executive Government and the House of Commons. Governments of whatever politics had denied the justice of these claims. As long as there existed a disposition to entertain them, and authority was divided upon the subject, their agitation in Parliament was quite legitimate; but for the last fifteen years the House of Commons, though often solemnly challenged, equally with the Executive Government had repudiated the demand. And, ably as the hon. and learned Gentleman had urged what could be said in favor of his case, he had laid no sufficient grounds to induce the Government to go in the teeth of such a course of precedents and combination of authority. Both on the grounds of prudence and justice he believed it would be wrong to give further encouragement to the discussion of these claims.
§ MR. MACAULAYsaid, his argument had been entirely misunderstood by the right hon. Gentleman. He had not founded his arguments upon any contention that the war between England and Denmark was an unjust war; but upon the fact that the English expedition to Copenhagen being undertaken at a time when both Powers were in friendly relations, the expedition was, therefore, an admitted trespass on the part of England. That being so, it legally provoked a reprisal on the part of Denmark; and he had contended that, according to the rules of public law, when a sovereign State did anything which legally invited reprisals by another State, the State to which the subjects upon whom 830 those reprisals were made belonged was bound to indemnify those subjects.