§ MR. GREGORY
The discussion of the case of the Tornado would have been far more easy and more satisfactory if his hon. Friend the Member for Honiton (Mr. Baillie Cochrane) had persisted in his original intention of bringing it before the House. They would then have had clearly stated the British grievance. The hon. Member would have expatiated on the innocence of the vessel, the veracity and pure antecedents of its owners, the ill-treatment of the crew, the arrogance of the Spanish Minister, and he would have professed himself quite as ready to singe the whiskers of the Don as was ever his renowned namesake and kinsman Lord Cochrane. He (Mr. Gregory) had no intention of dealing with his hon. Friend as a celebrated Judge was wont to do with counsel. He used to say before counsel had opened his lips, "Mr. So-and-so, I know what you are going to urge; but you are wrong, and I will point out exactly where you are wrong." Not knowing therefore what were likely to be the particular points on which his hon. Friend was about to assail the Foreign Secretary, he (Mr. Gregory) was unable to answer them beforehand. All he could say was this, that, generally, there were two sides to every question, and that assuredly there was a Spanish as well as an English side on this occasion. Now, he (Mr. Gregory) must be permitted to observe with regard to himself that he had no bias whatever in taking up this question. He took up originally the papers of the Tornado under a different impression from the present. He at first believed that a great wrong had been committed by Spain on England. With regard to the hostilities between Spain and Chili his feelings were equally impartial; if anything, he certainly thought Spain was in the wrong. His sole object in bringing forward this question was this, that the neutrality of England should be real and not fictitious, and that those offenders who deliberately violated the Queen's proclamation and the Foreign Enlistment Act should be repressed and 2035 punished, whether they were foreign or British subjects. A series of Papers, nine in number, had been laid before the House upon this case. In the first of these Papers, and as early as January last (I., p. 121), Lord Stanley gave the opinion which he had arrived at in this case in the following words:—It is highly probable that the vessel (the Tornado) was destined for the military service of Chili, and was conveying officers in the Chilian Naval Service to Chili; that the owners were guilty of an infringement of the Foreign Enlistment Act, and that they have forfeited all right to insist on Her Majesty's protection or interference for redress.Every succeeding Paper confirmed and expanded that opinion of the noble Lord, and he would venture to say that no one could study these Papers carefully and dispassionately without arriving at the conviction that, at the least, the vessel was contraband. He, however, went much beyond that, and was satisfied from the contents of the last Paper that at the time of her capture the Tornado was a Chilian vessel of war, and that, had the Spaniards dealt with the case properly, the vessel might have been condemned and the crew have been kept prisoners of war until the conclusion of the hostilities between Spain and Chili. There had been great indignation expressed at the conduct of Spain by many of the journals of this country. No doubt the Spaniards had been inexcusably dilatory in their proceedings. The case, simple at first, had been complicated by their mistakes and unhandiness. But had they no right, who had been so much aggrieved by English vessels being joined to the war marine of their antagonists, to be indignant also at the feeble action either of our Executive or of our laws? It would not do to tell foreign nations that they must suffer and be silent, because we had done all that our municipal law enables us to do. We had a lesson on that score in the case of the Alabama, and a very painful and humiliating lesson it had been; and, if the Spaniards in the course of their proceedings had been irregular, we should bear in mind the provocation they had received, and consider, as Lord Stanley has considered, that there are other appeals than to iron-clads and reprisals. In spite of all the complications which had arisen and been introduced into the case of the Tornado by the inconceivable mistakes of the Spanish Courts, there could not be a case which was originally more clear of all legal technicalities than this. 2036 Confusion had subsequently arisen, and nice questions were involved. The duty of the English Minister was, however, simple. It was to stand on the broad and acknowledged principles of International Law, and to see those principles fairly carried out; but turning his eyes from the mere technicalities of lawyers, he might, from his knowledge of the case, be satisfied with the soundness and substantial justice of the sentence pronounced, and refuse protection to those who had wilfully violated the laws of their country. Now, he begged hon. Gentlemen not to be shocked at the suggestion that the Foreign Secretary might turn away his eyes from legal technicalities which were of such importance in our Courts of Law. A Prize Court was not like a Court of Law; it was a much more rough-and-ready proceeding. The proceedings, moreover, of foreign Courts of Prize were not the same as of Courts of Prize in England. In France they were more lax than we were in the admittance of extrinsic evidence. In Spain, so far as the Spaniards could be said to have any practice, they went further than France. He (Mr. Gregory) hoped that some communications might be made with foreign Governments, so that all proceedings of prize might rest on an acknowledged basis. If so, much discontent on the part of private individuals would be spared, and much unpleasantness between Governments avoided. He believed that, before stating the case, he might be allowed to lay down three propositions. First, if the Tornado were a British vessel going from one neutral port to another—that is, as alleged, from Leith to Buenos Ayres or San Francisco, to be sold, her capture would be illegal. All on board would be considered British subjects and free. The vessel should be restored and the owner and crew entitled to damages. Secondly, if the Tornado was intended to be sold to Chili as a vessel of war, and was on her way there, the vessel would be contraband, but the crew should be set free; but if there were on board persons, although British subjects by birth, yet enlisted in the Chilian service, those persons would be prisoners of war. Thirdly, if the Tornado was actually a Chilian vessel at the time of capture, intended for the war navy of the Chilian Government, then, of course, the vessel would be good capture, and the crew prisoners, till the conclusion of hostilities. Let them keep these three points clear before them, and they would be an 2037 assistance in applying the evidence. In dealing with this case he must point out that there were three streams of evidence all flowing into one reservoir, as it were; and it would be necessary to follow each of them from its source. He referred to the circumstances connected with the Cyclone, those connected with the Tornado, and lastly, those connected with a certain Mr. John, or, in the more sonorous Spanish, Don Juan McPherson, who played a conspicuous part in the present drama. In order to be as little prolix as possible, the proceedings of the Cyclone and Tornado might be combined. From their first appearance they had linked their fortune's together. Each might say of the other—Utrumque nostri incredibili modo consentit astrum.Both ships were formidable vessels, intended and constructed for warlike purposes. The Tornado is described by the Leith officers of Customs as—A formidable vessel of war, with iron plates cut through and ready to show nine portholes—in every respect fitted as a war ship. She is better known as the Pampero, a vessel destined for the Confederate service.Both belonged to the same owners, and were tarred with the same brush. From the successful malpractices in the case of the Cyclone, they might judge what would have been the malpractices in the case of the other, had she been equally fortunate. Both ships were protested against by the Spanish representatives; in both cases the owners filled the air with their protestations of innocence. Here the parallel ends; for the Cyclone was now one of the war navy of Chili, while the Tornado was a prisoner at Cadiz. Now for their proceedings. From the very commencement of their fitting-out, the Commissioners of Customs, to use a nautical expression, "did not like the cut of their jibs," and had their eye upon them. The Cyclone gave the first signs of animation — she spread her innocent wings and set sail for Hamburg on the 21st March, in order to get a crew. The Tornado followed her example in June. On the 16th July the Spanish Ambassador warned the Government that the Tornado was about to return to England for the purpose of taking guns on board, and preying on Spanish commerce. The Tornado did return to Leith, but she made a slight detour—she went to the Faro Islands, having on board Messrs. Isaac, father and son, who were described as proprietors. By an extra- 2038 ordinary and fortuitous concurrence of atoms, at the same time that the Tornado reached the Faro Islands two other vessels came in and anchored alongside of her. The curious circumstance is not that the vessels should have come in, but that both should have belonged to the same owner as the Tornado — both should have been filled with shot, shell, Armstrong guns, gun-carriages, and every kind of munition of war, which Mr. Bridgman, the broker, states that he shipped for Messrs. Isaac, Campbell, and Co., and the still more extraordinary thing was this, — that both these vessels, although bound, the one to Gibraltar, the other to Hamburg, were wafted by winds and tides simultaneously to the little bay of Quaresund, in the Faro Islands, together with the Tornado. Everything was now comfortable; the coal was all ready, the munitions of war had arrived, and no doubt a roaring business would soon have been done among the merchantmen of our ancient ally—Spain, Unfortunately, however, accidents do happen in the best regulated families. The crew had, what their employers certainly had not, qualms—qualms of conscience, and they refused point blank to play their part in the drama; they determined they would not transfer the military stores to the Tornado. This insubordination of the crew called forth the interference of the Danish authorities (see Affidavit of crew). They forbade any other goods to be placed on board the Tornado save 190 tons of coal. Thus the Tornado was prevented from arming and changing her flag on Danish territory. Throughout the whole of this business Mr. Isaac is described, to use a vulgar expression, as being as busy as the devil in a gale of wind—until his alacrity was cut short by breaking his leg. Having failed to arm, the Tornado now returned to Leith, bearing on board the disabled Mr. Isaac.
While the Tornado was lying in forced inactivity at Leith, the Cyclone spread her sails nominally for Madeira, but in reality for Fernando de Noronha, where coals, both for her and the Tornado, were awaiting her on board the Lady Flora, from Cardiff. She there took in 370 tons of coal, and, after a successful voyage, arrived at Valparaiso, where she now carries the Chilian flag. An excellent account of her is given by Commodore Powell, commanding the Topaze at that station—The following circumstance may be relied on:—Her master received secret instructions from 2039 Messrs. Isaac, Campbell, and Co. He was especially to avoid falling in with Spanish ships of war. He was furnished with letters to the Chilian authorities at Sandy Point and San Carlos, which, together with his instructions, he was ordered to destroy in case of falling in with a Spanish ship of war. The ship was delivered up to the Intendente of Valparaiso, without any money payment being made to the master, the crew having first been very liberally dealt with and discharged; her name has been changed; he is to carry the broad pendant of Commodore Williams.Now, it is remarkable that so convinced were the Commissioners of Customs of the malâ fides of the Cyclone that they delayed her at Yarmouth until she was liberated by a Treasury Order, and the same Mr. Isaac, the owner of the vessel, is found uttering the same protests and vociferations of innocence, as to the purity of his intentions in this case, which he was doing at present as regards the Tornado, and with precisely the same amount of truth. A few days after the sailing of the Cyclone the Tornado followed her sister; but the Spaniards were awake. The Spanish frigate Gerona started after her, and came up with her at Madeira. The Spanish frigate arrived at half past six in the evening; and, true to her instructions to give the Spaniards a wide berth, the Tornado slipped out the same evening shortly after dark, hugged the shore, and steered to the N.W., a totally opposite direction to Rio, where she professed to be going; and, so great was the hurry of this innocent vessel, that she violated all the port rules, and made the best of her way, regardless of the blank faces of the Portuguese authorities and the blank cartridge which the forts were firing after her. (See the evidence of the civil Governor of Funchal. (I., p. 14.) Now one word more ere the drop scene falls over the unfortunate Tornado. She professed to be bound for Rio, but the Lady Flora, to which I already referred, was waiting for her, freighted with coals at an enormous expense, at the island of Fernando de Noronha, quite out of her route—and yet when they reached Madeira there was plenty of coals to carry her to Rio, according to the statement of the engineer. It is quite clear that this depôt was intended to enable her to do as her comrade was doing—to steam comfortably to Valparaiso without touching at any eastern port of South America, and thereby running the risk of meeting, a Spanish man-of-war.
Now all that has as yet transpired would only amount to a very strong sus- 2040 picion, or perhaps, conviction, that this vessel was contraband, and was going to Chili to be sold to the Chilian Government; but an actor appears on the scone by which the complexion of the case is altered. Among the persons on board was a certain person, Mr. John M'Pherson. This individual occupied the unostentatious position of third mate. He was merely taken in, says the Captain, to keep his watch, and he intended, to leave at Buenos Ayres and have a gallop over the Pampas to Chili. (I., p. 8.) When the vessel was searched on the 29th August a bundle of papers was found of a very compromising description. Mr. John M'Pherson, whom the Captain (Captain Collier) (I. p. 8.) declared he had not known before, denied all knowledge of the papers, or of the Chilian Government. A few days afterwards, however, Mr. M'Pherson's memory grew clearer, and he informed the Spanish officer in command of the Tornado (I., p. 9.) in. Captain Collier's presence that he was the chief engineer of the Chilian Government. The clouds subsequently seemed to have lifted themselves from off Captain Collier's memory, for in his examination he declared that he had a special recommendation (I., p. 80) from the owners of the Tornado to give M'Pherson a berth on board. Now for the papers found on board the Tornado. Among them a letter of leave from the President of Chili to Don Juan M'Pherson allowing him to reside in England—two copies of requests to the Government of Chili from J. M'Pherson asking for extension of leave, and also documents proving that, while in England, he was engaged by the Chilian Government in superintending the construction of the Chilian war vessels the General O'Higgins and Chacabuco. He acknowledges to have engaged for the Chilian Government, engineers, smiths, and carpenters, paying for their uniforms and expenses by funds supplied by Don. Juan de Benavente, agent for the Republic. Now all this is confirmed by the information received from Mr. Thomson, our Consul General at Santiago. (VII., p. 57) That gentleman, though he observed that his information was not capable of legal proof, stated that—It is said that the house of Messrs. Isaac, Campbell, and Co. had agreed to deliver the Pampero to the Chilian Government in a Chilian port for a given sum; that the ship's papers were got ready with the greatest care, so that no evidence should appear therein that she was destined for the Chilian Government; that the 2041 real port of destination of the ship was carefully concealed from the captain, the officers, and the crew of the vessel, and that the only one on board by whose presence the ship could be legally compromised was a Mr. M'Pherson, who was serving as engineer of the ship; that this M'Pherson is, and has been for a considerable time, an engineer in the Chilian navy; that he left Chili for England for the purpose of serving as first engineer on board of any ship which might be acquired in Europe by the Chilian Government, and that he was provided with a formal document to the effect that he had left for England on leave of absence from the Chilian Government; so that, when coming out, he might appear in the character of a passenger returning to Chili by the way of Rio de Janeiro, or Rio do la Plata, and the Cordillera. It is believed that letters were addressed to Mr. M'Pherson by Chilian authorities bearing evidence of his being again engaged in the active service of the Chilian Government, but it is not known if they have passed into the hands of the Spaniards.It is true the statements were but hearsay, but they confirmed documents which were not hearsay but the most legitimate evidence which can be submitted to a Court of Prize—namely, papers found on board the captured vessel. They got a further insight into Mr. M'Pherson's proceedings as connected with Chili. An English ship called the Henrietta went to Bordeaux, evaded the authorities there, sailed straight to Valparaiso, where she now forms part of the Chilian fleet, and Mr. M'Pherson's papers prove that he recommended Mr. David Johnson to be chief engineer of that vessel; but should she, by reason of any accident, be unable to leave the port of Bordeaux, then the Chilian Government was only bound to pay Mr. Johnson's expenses back from Bordeaux to London. Now, this being a serious matter to have had a Chilian agent on board their ship, Messrs. Isaac and Co. describe Mr. M'Pherson as a "humble mechanic quite surprised at the ridiculous rank and absurd importance thrust upon him" (III., p. 2.); and the unfortunate man was obliged to write what is called by Messrs. Isaac and Co. "a straight-forward letter" to Lord Stanley, denying that he ever was the chief engineer of the Chilian Government. This was too much for Lord Stanley, so in reply he asks Messrs. Isaac if the humble mechanic, J. M'Pherson—Is the same person as Don Juan M'Pherson, whose name appears in the Chilian Navy List, as senior engineer of the first-class, as having entered the Chilian service in May 1857, and as being on leave of absence in Europe?The reply of Messrs. Isaac was really a 2042 model of intrepidity. (III., p, 6.) They say—That from Mr. M'Pherson's own statements it is quite clear he must be a different person from the Chilian chief engineer.And this in the very face of his own declaration, in the presence of their own Captain, on the 5th of September, when he acknowledged himself to be that functionary. Now, after all these evasions, equivocations, and downright untruths, the noble Lord was justified so early as January last in stating—That the evidence taken before the Sumario afforded a strong presumption that the Tornado was destined for the military service of Chili, and that her seizure and condemnation in regular procedure by a Prize Court would be within the legitimate rights of the Spanish Government.It was necessary to be somewhat minute in stating these facts as they proved that Mr. M'Pherson was engaged in the military service of the enemy, and as such might be legitimately constituted prisoner of war by the Spaniards. But now they got to the last stage which covered all and which relieved him from the necessity of going further into the question of contraband, because, if the Tornado were proved to be a Chilian vessel of war at the time of her seizure, there was an end to the whole matter; and from the following evidence that conclusion was positively irresistible. In April last, Captain McKillop, of the Royal Navy, seeing that the complications between Spain and England had assumed so serious an aspect, made to the Admiralty the following important statement:—He said that in May, 1866, he was offered by the Chilian Government the command of their squadron in Europe, consisting of two ships called the Tornado and the Cyclone. He further stated that when on his way with a number of men to join the Tornado they were stopped by order of the Admiralty. The men were landed at Portland and dispersed."—(VII., p. 20.)To this statement Messrs. Isaac and Co. take exception, saying they were not responsible for anything that took place before the 20th of June, the time when they purchased the vessel, and that it was impossible Captain McKillop's statement could be correct that these vessels belonged to the Chilian Government in May, as they purchased them from their owners in June, and they remained up to that time registered in the names of their owners, Messrs. Denny. But this was mere evasion—of course, the Chilian Government did not register in their own name or the vessel would not have got 2043 out; she required a godfather and an outfitter, and she found both in Messrs. Isaac. Captain McKillop's evidence was confirmed by facts and dates. The Tornado, it is clear, would have been supplied with all munitions of war at the beginning of July, but for the mutiny of the Danish crew at the Faro Islands. On the 10th of July Captain McKillop set forth in the Greatham Hall to man her and the Cyclone with 200 picked men. He was intercepted by the Caledonia, and was landed at Portland. To this information of Captain McKillop, Messrs. Isaac only offer a torrent of denial and abuse. Now if the contest lay only between McKillop v. Isaac it would be a question of credibility—and could any reasonable man have a doubt on which side truth lay? Captain McKillop had no object except to make truth manifest; Messrs. Isaac no object except to conceal their malpractices. Captain McKillop's veracity has never been impugned. The whole correspondence of Messrs. Isaac, Campbell, and Co., was one mass and tissue of untruths devoid of the commonest decency. Independently of their exploits in denying the connection of M'Pherson with the Chilian Government, what could be thought of men who, when Lord Stanley invited them to give an explanation as to how their vessel, the Cyclone, was now forming part of the Chilian war navy, could have the audacity to send this reply—They note your Lordship's statement that Her Majesty's Government have received intelligence on which they can rely in reference to the Cyclone. On investigation it will be found that we have not, in this case, disregarded Her Majesty's proclamation;and who had the effrontery, on the 1st of May, to send round a printed circular with this paragraph—They (Messrs. Isaac and Campbell) feel that they can honestly claim the protection of Her Majesty's Government as British subjects who, having violated no law, municipal or international, have been despoiled of their property.That men who had fitted out and dispatched a war vessel to Chili, which vessel was in Chilian waters with the Chilian flag at her mast head, could dare to use such expressions, baffled comprehension. At all events, it enabled the House of Commons to form a judgment as to which was likely to be most reliable—the statements of Captain McKillop, or the denials of Messrs, Isaac. But if the case required further evidence let them go a 2044 little further and look at the testimony furnished by the belligerents themselves. The House was aware that Peru and Chili were allies in the war with Spain. On the 25th of August, 1866, three days after the capture of the Tornado, a Peruvian newspaper called the Nacional de Lima informed its readers that Chilian agents had bought in Great Britain the Pampero (that is, the Tornado) and the Cyclone; and on the 12th of September, the Commercio de Lima, in enumerating the vessels of the Chilian Navy, included the Tornado and Cyclone. In Chili also, on the 2nd of October, The Bulletin of News of War with Spain in the Pacific, an official Gazette published in Valparaiso, and only circulated among a select few, contained the following piece of information:—Among passengers on board the Santiago are, &c. … It appears the Cyclone will arrive safely, and it is considered certain that the Pampero will also arrive without accident, as she has received no orders to pass by the coast of Spain and consequently will not incur the risk of being captured.And two days afterwards the same announcement was re-published verbatim in the Araucano, which is styled in the Consul General's letter from Santiago as being "the only publicly recognised gazette in Chili." In fact, it was tantamount to an announcement in our Gazette or in the French Moniteur. In this summary he (Mr. Gregory) had rejected all stories which had been fairly contested—as, for instance, the story of the hole being cut into the sealed-up cabin of the Tornado to abstract papers, the statements of Messrs. Trotter and Jenkins. There was always a Jenkins in these Spanish disputes, and always some unpleasantness about their ears. But the accumulation of evidence, direct and circumstantial, was so overwhelming that he would venture to say there was not a Prize Court in Europe which, with the facts he had laid before them, would not condemn this ship. He had not alluded to the detention of the crew. He left that to the hon. Members for Honiton and Bodmin, and to the Secretary of State to answer them—one thing was perfectly clear, and that was, that the Spaniards might have condemned the vessel as an enemy's ship and detained the crew as prisoners of war till peace was proclaimed, if they had not cut the ground from under their own feet by the extraordinary perversity of their proceedings, both as regards the trial, and by asserting 2045 that they detained the crew as witnesses. Lord Stanley was perfectly justified in his protest against such proceedings; but, as to the facts of ill-treatment and compensation to the crew, he should be glad to hear that the reports were not founded on facts, that the crew were paid higher than ordinary wages, as if for a risk, and also some explanation of the acknowledgments of good treatment on the part of the Captain and the crew themselves. Before concluding, he wished to make some observations on the way the case had been treated by Lord Stanley. He (Mr. Gregory) had read every State Paper written by the noble Lord since he became Foreign Secretary, and he would pay him, not the compliment, but the just tribute, that their clearness, good sense, and propriety of language did him infinite credit. He was therefore by no means prepared to assert that in his criticisms he was right and the noble Lord wrong. First of all he asked, how came it that, with the strong evidence of intended malpractices, these vessels were not detained? This was no novel case. The noble Lord and his advisers had before their eyes the course adopted by their predecessors in the case of the rams and the Alexandra. The country fully justified the conduct of the late Ministry in dealing with those vessels. In this case there was the strongest evidence as to malâ fides. To make this assertion clear, let him refer to dates. So far back as March 1856, suspicions existed in the minds of our authorities that these vessels were intended for the service either of Chili or Peru, During the whole month of July, 1866, the Foreign Office was assailed with warnings from the Spanish Minister. On the 14th July the episode of the attempted arming of the Tornado at the Faro Isles took place. On the 2nd August affidavits narrating that affair were received, together with a communication from Mr. Gatherer, collector of customs at Lerwick, stating that, from information which he had obtained, the Tornado was intended to engage in the hostilities between Spain and Chili. But the episode of the Greatham Hall took place on the 11th July, and on the 9th of that month affidavits were in the noble Lord's hands, or in the hands of the Admiralty, that men were being enlisted to go on board the Greatham Hall. These men were actually told by the Captain of the Greatham Hall they were going to sea to pick up a ship, and then when on board of her to sign articles 2046 under the Chilian flag. Was not that sufficient warning? They should remember that the Cyclone was at Yarmouth till the 2nd of August, and did not leave Falmouth till the 7th. The Tornado did not start till the 9th of August. It was a Captain in the English Navy who was in the command of the sailors on board the Greatham Hall. How came it that the noble Lord did not stir up the Admiralty to make inquiries which must have resulted in the detention of these ships? The Admiralty seems to have been thoroughly supine. He never heard anything more unsatisfactory than the careless manner in which this gross infraction of our Foreign Enlistment Act had been treated in the case of the Greatham Hall. It did not appear that the Admiralty ever ascertained who chartered that vessel. Then, again, how came it that the noble Lord never asked for a copy of the papers found on board the Tornado until June 1867? These papers and the evidence of the crew threw great light on the merits of the case. In fact, at first they were almost the whole light. The noble Lord might say he had nothing to do with the merits of the case; but as in the great portion of the correspondence the noble Lord dealt with the merits of the case, as he largely imported, and very properly imported, extrinsic evidence, which he submitted to the owners of the vessel for refutation, and by which he was evidently influenced in his dealing as between Government and Government, how came it that these important documents were not under his eyes, and are not now under the eye of Parliament? It was quite clear from Sir John Crampton's letter of the 20th June, 1867, (IX., p. 9) that though now inaccessible they might then have been obtained. He (Mr. Gregory) also took exception to the course adopted by the noble Lord in protesting against the sentence of the first Court as null and void on the ground that the proceedings were objectionable. If the sentence had been definitive the noble Lord would have been perfectly right. It would have been intolerable had condemnation ensued on a mere ex parte examination, without the owner being allowed to say a word in his defence — which was the case in this instance. But if he (Mr. Gregory) understood aright the intricacies of Spanish law, this was a mere preliminary inquiry. In it the fullest one-sided evidence was received; had that not appeared sufficient to put the vessel on 2047 trial, she would have been set free; offering, however, as it did, a primâ facie case of guilt, condemnation followed, and upon the appeal from that preliminary sentence the real trial would have taken place. Our own grand jury proceedings would illustrate the case. There only witnesses for the prosecution were heard; on their evidence a true or no bill is returned, and the case of the Tornado was a case of true bill. Some might say that the Spaniards gave the best answers to this criticism by their acknowledgment that these proceedings were null and void; but that was not owing to the irregularity of the proceedings, but owing to the incompetence of the Court, and against the incompetence of the Court the noble Lord did not protest. He thought the noble Lord ought to have warned the Spanish Government that, if the first judgment was to be understood as a mere initiatory proceeding, it might be allowed to pass; but that it was impossible for the British Government to allow the vessel to be condemned without the opportunity of the owners being heard in their own defence, and of testing the evidence submitted to the Court. And he (Mr. Gregory) could not help thinking that the noble Lord had ultimately arrived at the same conclusion from the language of his despatch to Sir John Crampton—You will take an opportunity, however, to intimate to General Calonge that a new trial and judgment, after hearing the claimants, would put the Spanish Government right, not only in the eyes of England, but in those of all civilized States, without derogating in any way from the rights to which a State claiming to be captor of an enemy's ship is entitled. Her Majesty's Government must, indeed, insist upon the claimants having an opportunity of being fully heard before sentence is pronounced, upon any evidence on which the Court may proceed.A new trial is now to take place. The cause is to be transferred from the Judicial to the Administrative Department, and in the same despatch the noble Lord goes on to say—It is a question of great importance whether the Spanish Government is entitled to avail itself retrospectively of any authorized acts of inquiry already made, should that Government decide to proceed to a new trial, and afford the claimants an opportunity of being heard on such trial; but, on careful consideration, Her Majesty's Government are of opinion that they are so entitled. Up to the close of the previous inquiry, and in reference to the report resulting from it, nothing had occurred which made it incumbent on Her Majesty's Government to refuse to allow that report to be used. It was against the subsequent sentence and condemnation of the vessels, without the 2048 claimants having been heard, that Her Majesty's Government have protested. But in assenting to the evidence already collected being made use of, if the case is re-opened and an opportunity given to the claimants to be heard upon it, before the same or any other tribunal, Her Majesty's Government consider that, looking to the exceptional circumstances of the case, the claimants ought to be allowed to produce evidence explanatory or contradictory of the Sumario.Now, he would ask, how came it that after protesting against the initiatory proceedings, on the ground that sentence had been pronounced on unchallenged evidence, the noble Lord allows that same unchallenged evidence to be used against parties who, after such a length of time, and the dispersion of witnesses, cannot properly sift or rebut it? This, to say the least, was something like "straining at a gnat and swallowing a camel." A new trial may of course take place. A suitor in England who sues in a Court without jurisdiction does not forfeit his right of action in a proper court; but as to the evidence given on a former occasion, if the witnesses cannot be produced again, that evidence can only be received on certain conditions. The conditions were these — The evidence should have been delivered before a court which the party against whom the evidence is to be used was bound to recognize. The witnesses at the time should be liable to the cross-examination of the adverse litigant. The evidence should be strictly evidence, and not mere hearsay or gossip, and it should be out of the litigant's power to procure primary evidence. Now, it was clear that these conditions had not been complied with; the evidence was taken before a court without jurisdiction. Messrs. Isaac and Co. had no power to cross-examine; the evidence was much of it mere gossip. He presumed, therefore, that Lord Stanley was satisfied, provided substantial justice was done; and that having thoroughly satisfied himself as to the facts of the case, he was prepared to leave the battle to be fought out by the lawyers of the contending parties, and if that were the case, all he could say was that the reason, if not very recondite, was, at all events, a very comfortable and wise one. He now dismissed the subject of the Tornado with one observation, and that was, that he thought it would be highly advisable, in order to avoid future contentions, if some general form of procedure in Prize Courts could be established, and in this age of international comity, such 2049 a proposal, coming from the noble Lord, might be entertained by foreign nations. He would now say a few words about the Victoria. This case had been mixed up with that of the Tornado, and an impression had been created that the Spanish Government had, by a series of insolent and high-handed acts of aggression, been determined on quarrelling with England—nothing could be further from the truth than this impression. In the case of the Victoria the conduct of the Spanish authorities at Cadiz was perfectly indefensible. But the Spanish Government never maintained the case against us as one to stand on. They mismanaged and delayed it with the same extraordinary procrastination which had marked their proceedings in the case of the Tornado. The noble Lord was perfectly right in insisting that these vexatious delays should come to an end, and reparation be granted for the wrongs inflicted on a British subject sailing under the British flag. But granting to the full all the misconduct that had taken place, had the Spaniards nothing to urge by way of extenuating circumstances. He was sorry to have to make some remarks which would be distasteful both to the House of Commons and to the country; but he felt so strongly on the subject that he could not refrain from doing so. He remembered making some similar remarks some years ago on the subject of the cession of the Ionian Islands, which gained for him much animadversion at the time. Still, the Ionian Islands had been given up, and he believed England had been no loser in power, and certainly had been a gainer in reputation by the cession. He had been recently, for the last two years, in almost every large town in Spain; he had quartered that country pretty nearly as closely as a pointer quarters a turnip field in November, and he knew something of Spanish feeling. He was surprised to find almost everywhere throughout Spain, in spite of the traditions of the great war, in which we fought side by side, that France, notwithstanding all the misery she had inflicted on Spain by her invasion, was far more popular than we were. The old feeling in Spain was pre-eminently English. He remembered quoting to the last Spanish Ambassador the famous Spanish proverb, "War with all the world, but peace with England." He used the word "Ynglaterra" for England, but the Marquess do Moline corrected him, and re- 2050 marked that that word was "Yngalaterra," a far older form, which pointed back to the ancient origin of that traditionary good feeling towards England. Now all that had disappeared. Soreness and anger pervaded that country. That soreness and that anger arose from one source alone; but from that source flowed many bitter streams. That source was Gibraltar. What must be the feelings of a proud and sensitive nation to hear daily the bugles and the drums of a foreign garrison encamped upon her soil. Let them picture to themselves the feeling of France if an English garrison continued to hold Calais; and yet, if such were the case, he was perfectly convinced that Parliament and the country would believe that the very existence of England depended on the maintenance of Calais. Let them draw again on their imagination, and conceive the French tricolour waving over Portland. Would France or England rest quiet for one moment under such an intolerable insult? Why, they would spend their last guinea and their last man rather than submit to such a degradation. Now, the word Gibraltar recalled to every Spaniard not only the present insult, not only the fraud by which Rooke became possessed of it, but the practical evils which arise from our possession of it. The proceedings at Gibraltar were a never ending source of annoyance and wrong to Spain. No one single act of ours had more alienated Spanish feeling than the unfriendly and unhandsome behaviour of England during the attempt of Spain to chastise those hostes humani generis—the people of Morocco. We called in a debt while they were in their struggle; the attitude of our Consul notoriously leant to the Moors; it was evident that England wished Spain to fail. And why? Because, if the Moorish sea-board fell into Spanish hands, Gibraltar might be straightened for fresh beef. The case of the Victoria sprang also from this source. Gibraltar was notoriously the hot-bed of smuggling; from under its fastnesses vessels were constantly plying to-and-fro, landing English contraband goods in Spain. The great business at Gibraltar, and in its neighbourhood, was smuggling, and they must bear in mind that in Spain the line between the contrabandist and the bandit was often lightly traced. In this case the Victoria was a Spanish vessel, with a Spanish captain, a Spanish crew, and was moreover a notorious smuggler. The os- 2051 tensible owner of the vessel was a certain Larios, a Spaniard, a well-known smuggler at Gibraltar, one of three brothers, who have made Gibraltar, Malaga, and Cadiz their ports of business. This Larios, like other Spanish smugglers, had contrived to get himself naturalized as a British subject by going through certain forms at Gibraltar. This was a subject which came under the cognizance of the Colonial rather than of the Foreign Office; but he hoped the noble Lord would make some inquiry into the subject, and see how this process of naturalization was effected, because it was evident that by means of it great injustice was being done to Spain, and the English flag was employed to cover notorious evil practices. Could they not, however, cast their thoughts a little further, and consider well what justification they could offer to the world or to themselves by the retention of Gibraltar? He did not say give Gibraltar up at once. They might require Ceuta in exchange. The Government of Spain, moreover, was such that many enlightened Spaniards had assured him that it was fortunate for them to have some place of refuge from the bullets of Marshal Narvaez. He hoped, however, that the time would come when the public conscience would awake, and when the claims of Spain for the restoration of part of her mainland would be considered to be not less strong than the claims of the Ionians to their Seven Islands. Such was the moral he (Mr. Gregory) drew from the case of the Victoria. Such was the reason why he had alluded to it at all on that occasion. In conclusion, he would express a hope that the malpractices he had described in the case of the Tornado might not meet with reward or even with impunity. He hoped that vessel would not escape through mere legal technicalities, for he was confident when the real bearings of this case became known, as they would be throughout England after this debate, the public sense of the country would acknowledge that Spain had just cause for complaint, and that a great wrong was being done to her, either by the laxity of the Executive, or the inefficiency of the law. He trusted, therefore, that not another year would elapse ere the Executive might have its hands so strengthened by Parliament as to enable it to deal effectually with cases such as these of the Tornado and Cyclone. If by reason of jealousy they refused to grant additional powers to detain vessels against which 2052 strong suspicions existed, if the onus of disproving these suspicions were not cast on the owner, then they would strengthen that opinion which prevailed abroad—that England, vigilant and arrogant when a wrong was done to her, was palsied and shortsighted when her citizens were doing wrong to others, and the time would come, and they already had had their warning in the case of the Alabama, when they would have to pay for their shortcomings, whether arising from negligence or neglect, with tenfold compound interest.
§ SIR ROUNDELL PALMER
said, he did not propose to enter into the subject of the general relations between Spain and this country, or into any discussion upon the merits of the question before the House, because some of the matters touched upon were still the subject of diplomatic or judicial proceedings. Still, he had no intention of finding fault with the manner in which his hon. Friend (Mr. Gregory) had brought forward the case; he had spoken with great propriety, and with the general spirit of his remarks on the duties of neutrality he heartily concurred. But there was one point connected with this subject, to which he might refer without any fear of embarrassing Her Majesty's Government, or of prejudicing their future negotiations, because it had now been deprived of practical importance by the admission of the Spanish Minister, that the earlier proceedings in this matter had been taken before an incompetent tribunal. In the course of the negotiations which were undoubtedly conducted in a most able manner by the noble Lord, there arose a question involving a most important principle, as to which the noble Lord had been advised to take up a position which, he confessed, appeared to him untenable. It was a settled principle of International Law that, when a belligerent right was asserted by a Government at war against neutral vessels, that right was not to be determined with a high hand according to their mere will and pleasure, but that some judicial proceedings must be taken in what was called a Prize Court, in order to justify publicly and formally the grounds on which, if at all, the vessel was to be condemned, and the neutral subject treated as a violator of neutrality. But the International Law which prescribed this course did not in any way prescribe the forms of the procedure which was to be adopted by foreign Governments, and, as a consequence, did not hold the neutral Government bound in any 2053 case, whatever might be the result, even if obtained in the most regularly constituted Prize Court. Every nation was left, at the end of the proceedings, to judge for itself whether substantial justice had been administered to its subjects, and if it believed that substantial justice had not been administered, it was not bound to abide by the decision, even though it might be confirmed on appeal. He believed he was right in saying that when the mutual claims between this country and the United States were considered and determined at the close either of the last or the previous war by a joint commission for the purpose, the United States succeeded in obtaining compensation for some vessels condemned in a perfectly regular manner by our Prize Courts. That being so, it would be quite a mistake for this or any other country to dictate to a belligerent country the form of procedure; and here it was that he thought the Government and their legal Advisers had been betrayed into an error, perhaps not unnaturally, in the first instance, though he regretted that it had not been subsequently perceived, and that it had been persevered in when it ought to have been discovered. What the Spanish Court seemed, in the first instance, to have done, was to conduct an ex parte investigation in the absence of the claimants, and without their having the opportunity of hearing or knowing the evidence taken, or of arguing their case, or defending themselves in any way, and upon that ex parte statement to pronounce an absolute sentence of condemnation against the ship. On the face of that proceeding it was but natural to construe it as a final proceeding, really intended to be what it seemed to be, a sentence of condemnation of the ship; and no one who read it could be surprised that the noble Lord and those who advised him had at first placed that interpretation upon it. If that had been its true and real meaning he should have been the first to agree that the advice given to and adopted by the Government was right; and that a sentence, pronounced under such circumstances, could not for a moment be recognized as effective to bind the interests of neutral subjects. The expression, "null and void" was not, he thought, a happy one; but, if right in substance, that was a question of words, which he would not criticize; and he had no exception to take to the line adopted by the Government upon the advice of the legal Advisers of the Crown, when they stated that they could 2054 not regard this as an effective sentence condemning the vessel. But it turned out, when the matter came to be explained by the Spanish authorities, that this proceeding did not really bear, in Spain, the construction which had been put upon it in England. It appeared, that this supposed, sentence, which in Spain was called the Sumario, was really no judgment at all, unless acquiesced in as such; it was (if an analogy were sought in English law), at the most no more than an ex parte inquisition, or like the finding of a Grand Jury on an indictment. It did not require to be reversed upon appeal; it simply went for nothing, if a trial upon the merits were demanded. If any one objected to it, whether claimant or captor, he had only to state that fact, when the case would be tried on its merits, with every opportunity of the parties being heard. That which was called a Plenario would be the real trial. As soon as that was explained the right to object to the first stage of the proceeding by Her Majesty's Government appeared to him to be entirely gone; because, immediately upon it, the claimant ought to have taken the necessary steps for having his case tried on its merits; and if it so happened that the same Court had proceeded to try the case, he was not quite sure that even that would be without a parallel in this country. Be that as it might, and whether such a manner of proceeding were convenient or inconvenient, satisfactory or unsatisfactory, it was not for this country to dictate the form of procedure; but if in the end we thought that justice had not been done, we should then have had a right to object. It was very fortunate for us that the Spanish Government had admitted that the procedure was wrong; and, if it had been otherwise, he might not have ventured to speak so freely about it. The noble Lord not only thought he was doing right, but he had been desirous of doing what was right from first to last, and therefore he should have been unwilling to make these observations at a stage of these proceedings when it would have been likely to have embarrassed the Government. The principle he (Sir Roundell Palmer) contended for was, he was satisfied, right and sound. If we had done what we were in great danger of doing we might have caused the parties — who might probably have no merits at the bottom—to say that since the British Government had pronounced the procedure 2055 null and void from the first step, they would take none of the steps required by Spanish law for their defence, but would throw it on the British Government to assert their case. The claimants, in fact, had all but done so; but the acknowledgment of the error which had been committed in Spain now deprived that mistake of any practical importance.
THE ATTORNEY GENERAL
said, he could not help thinking that his hon. and learned Friend had accused the Government of a fault which could not fairly be laid to their charge. He did not for a moment contend that Her Majesty's Government had a right to dictate to the Spanish Government of what this Prize Court should have consisted, how it should be managed, or what particular procedure should be adopted; but he maintained, that in all cases in which the shipping of this country was concerned, it was most improper that even a primâ facie sentence of condemnation should have been pronounced in the absence of, and without hearing the evidence of, the claimants. He did not pretend that Great Britain could complain because the Spaniards chose to admit in the first instance newspaper reports and hearsay evidence, but he maintained that before a sentence of condemnation was pronounced, there should be a fair opportunity offered for urging objections and claims. No Court had a right to pronounce a sentence of condemnation and then to say that an appeal to the same Court might be made against its own decision. If the Sumario had been nothing more than a mere indictment or acte d'accusation, on which other proceedings were to be founded, there would have been no objection to such a course of proceeding; but it appeared that the report of the auditor specified the facts and rumours on which the vessel ought to be condemned. That, in his opinion, was a sentence of condemnation; and was it to be contended that though a party who was found guilty on ex parte evidence was told that he might appeal, the fact of his being found guilty was not a sentence to all intents and purposes? In a letter of January 9, 1867, Consul Dunlop wrote from Cadiz to Lord Stanley, stating that the Spanish jurists to whom the proceedings regarding the Tornado had been submitted were unanimous in denouncing the sentence as illegal, and they were also unanimous in denying the legality, by Spanish law, of the whole of the proceedings subsequent to the capture. He contended 2056 that they had not interfered with the procedure of the Spanish Prize Court, but only against the condemnation of persons without a hearing; and this country ought not to sanction the establishment in a foreign country of a Prize Court in which persons might be condemned without a hearing. It was its duty to protest against it as contrary to natural justice, and one that ought not to be considered a tribunal before which questions of a prize or no prize ought to be entertained. The information received by the Government of what occurred in the first instance was such as made it imperative that they should interfere, and in the mercantile interests of the country, to say, that, although foreign countries might adopt a mode of procedure in their Prize Courts, they could not condemn vessels or the owners of vessels, and the crews, to be prisoners of war without first hearing what they had to say.
§ MR. BAILLIE COCHRANE
, whilst agreeing in much that had fallen from the hon. Member for Galway (Mr. Gregory), differed from him entirely as to the character of the ship and the conduct of her owners. There had been no doubt a great prejudice raised against those gentlemen in consequence of its having been represented that their ship was a vessel of war, and had been sold to the Chilian Government. He felt under great difficulty in dealing with the case, because he was opposed to the opinion expressed by the noble Lord the Foreign Secretary, as stated in his despatches, and in whose judgment the country placed so much reliance. He contended that the suspicion of that ship having been sold to the Chilian Government did not justify Spain in condemning it; or at all events it did not justify them in detaining the crew as prisoners of war. It was now one year since the vessel was captured. He had a strong—he might say a somewhat personal—interest in the matter, several of the crew having come from his own county, his own neighbourhood, Scotland. These men from first to last, and until the vessel was seized by the Spanish Government, knew of no charge that could be made against the owners, and of no suspicion attaching to the ship. He was even prepared to prove that the vessel never belonged to the Chilian Government, and further that she was never intended to belong to the Chilian Government. It was true that the Cyclone and the Tornado were sister ships. They were men-of-war 2057 built for the Confederate States, and they came into the possession of Messrs. Isaac, Campbell and Co., in the month of July or the latter end of June. As to the antecedents of these ships—supposing that what Captain M'Killop said was correct, that he was offered the command of a Chilian squadron consisting of the Cyclone and Tornado, he did not see what that had to do with the question. That grave suspicion attached to the ships he admitted; for, as he admitted, they had been built for the Confederates. But with regard to that suspicion, numerous documents bearing on the subject had been submitted to his noble Friend at the head of the Foreign Office; a very strict inquiry took place, and the result was stated in these terms—With reference to your letter of the 7th inst., with respect to the Tornado and other vessels supposed to be intended for the service of the Chilian Government, I am directed by Lord Stanley to request that you will inform the Lords Commissioners of Her Majesty's Treasury that, after a further reference to the Law Advisers of the Crown, his Lordship is advised that at the present there appears to be nothing calling for the interference of Her Majesty's Government in the cases alluded to.—I am, &c. E. HAMMOND.Foreign Office, August 14, 1866.Up to the time when these vessels sailed there was nothing in their antecedents to awaken the suspicions of the crew. This was additionally clear from the instructions that were given to Captain Collier. The only instructions given were these—
§ "7, East India Avenue, E.C.,
§ "London, July 31, 1866.
§ "Dear Sir,—Having completed your arrangements, shipped your crew, and all things necessary for your voyage, you will leave without delay and proceed for Rio Janeiro and Buenos Ayres, calling at Terceira to coal. We enclose you letter to G. P. Dart, Esq., for this purpose. Leaving this port, you will direct your course to Fernando Noronha, about 4 deg. latitude South, 31 deg. longitude West, where you will find the steamship Lady Flora, Captain G. W. Ward, laden with coal for your use. We enclose you letter for Captain Ward herein. You will proceed under easy steam when in calm, and use your sails when in favourable weather, so as to save as much coal as possible. Should you be compelled to call at any port for repairs or stores, you will complete your business without delay, and we authorize you to draw on us in due course for such amounts as you may require. If you decide on proceeding direct to San Francisco you can do so, calling at the Falkland Islands for coal. You will find letters and full instructions awaiting you at the following places—namely, Buenos Ayres, Henry N. Hart, Esq.; Falkland Islands and San Francisco, the British Consul. We rely on your doing your best for our house.
§ "S. ISAAC, CAMPBELL AND CO."
Nothing could be more clear; they were as natural as possible. He had here a
letter which had not been published, and which might throw further light on the subject, an extract from which he hoped the House would allow him to read. The master had been informed that he would find letters, &c., for him at Henry N. Hart's, Buenos Ayres. The following was an extract from a letter, dated Buenos Ayres, September 23rd, 1866, from Henry N. Hart to Messrs. Isaac, Campbell and Co. The original was in the hands of Messrs. Isaac, Campbell and Co.'s lawyers at Cadiz—
My dear Saul,—I have received yours of the 8th ult., in which you advise having given a letter of introduction and a letter of credit to Captain Collier, of your steamer Tornado, which was to proceed to Rio Janeiro, and might come to Buenos Ayres (or Montevideo, in which event she would be consigned to Ernest), and my assistance is requested to sell or charter her. I have to state, in reply, that, although such business is not strictly within my sphere, I shall give it my best attention, and sincerely hope that it may result as profitably to you as you can anticipate. I see that your captain would draw on you direct. The facilities for drawing could only be given by my endorsing the bills and remitting them for collection, which might entail an expense, for which, doubtless, you are prepared. Our war with Paraguay is now drawing to a close, but still if your steamer do not draw too much water she might be useful for a final push.
The Tornado started on her expedition, and all her paper were en règle. What did Consul Graham Dunlop, who had throughout behaved so admirably, say on this subject?—
I have examined the officially certified copies of the ship's register and bill of sale, with her 'articles of voyage' from Leith to Rio Janeiro; and Mr. Isaac, her owner, has also exhibited the copies of his instructions to the master. These papers are all in order, and afford proof of her being bonâ fide British property, and I consider that Mr. Isaac has a right to ask me to enrol his vessel at my Consulate.
What occurred? The Spanish Consul telegraphed to Madrid. The Gerona had orders to intercept the Tornado; but if Captain Collier had suspected his vessel to be violating neutrality, would he have left the harbour of Madeira? He did leave the harbour, and was fired upon by the Gerona. A shot struck her; she was forced to lay to, was boarded, and her crew made prisoners. Would the Captain without the slightest means of defence, have left the harbour under such circumstances had he been, as was alleged, conducting a vessel belonging to the Chilian Government? Why, then, did he leave? Because there was nothing about this vessel to induce him to think that he would be either attacked or followed. He thought
a single explanation would put an end to the whole affair. He would here read a letter from the Rev. Mr. Davidson, a man of the highest character, whose brother was engaged in the Tornado as one of the seamen—
My brother's joining the Tornado as a seaman was so much in the ordinary course of business that no record was obtained that I could transmit to you. Showing signs of convalescence, the doctor recommended him to take short and easy voyages in the hope of final recovery. He had been two or three voyages to Hamburg, &c., in a Leith steamer. On returning from one of these the Tornado was lying at Leith and the captain engaging seamen. My brother, thinking that a southern voyage in a steamer would be beneficial to his health, at once engaged as an ordinary seaman. His health had not permitted him to take any charge, as formerly, but he was able to do most of the work required of a seaman on board a steamer. He signed articles in the usual way at the Shipping Office, Leith. His wage was about the ordinary rate at the time—£4 per month—and a half-pay note, according to usual custom, was signed and given to his mother. Everything done was in the ordinary way, nothing to indicate anything unusual, much less unlawful. Had anything of a hazardous nature been suspected he would never have engaged for the wages he could have received in any other vessel.
It was, therefore, perfectly clear that the crew, when they embarked in the Tornado, were perfectly ignorant of any suspicion attaching to the ship. His hon. Friend laid great stress on the statement that the Cyclone was now in the Chilian service. That was an important part of his argument. The whole thing, however, was a perfect delusion; the reference was to a different ship altogether. He should not assert this if he were not able to prove it. From the evidence it appeared that, whereas one ship Cyclone was described as a vessel of 446 tons burden, the ship Cyclone now in the Chilian service was a vessel of 887 tons burden. [Laughter.] Hon. Gentlemen might laugh; but he could not understand how a vessel of 446 tons could be the same vessel as one of 887 tons. He felt the greatest reluctance to express any opinion differing from that of the noble Lord, who always brought great knowledge, assiduity, and ability to bear upon such subjects as that now before the House; but he was afraid that the noble Lord had allowed his mind to be unduly influenced by the statements of M'Killop, Potter, and others. Even supposing that M'Pherson had been formerly in the Chilian service, would that justify the Spanish Government in seizing any ship which he might happen to be on board? He now came to what was really a very
painful part of the case, and he trusted that the House would view the matter fairly, and would throw aside any vague suspicion that might have entered into their minds as to the part taken by Messrs. Isaac, Campbell and Co. in the transaction. Whatever grounds for suspicion might exist with reference to the position of those persons, nothing would justify the cruelty which had been inflicted upon the crew by the Spanish Government. He was sorry to hear the hon. Gentleman opposite justify the detention of the crew in prison — and sometimes in chains—from August to December without their being permitted to communicate with their Consul.
§ MR. GREGORY
denied that he had attempted to justify that part of the conduct of the Spanish Government.
§ MR. BAILLIE COCHRANE
said, he was glad to hear the hon. Member make that statement, because in his opinion the conduct of the Spanish authorities in that respect was totally unjustifiable. The crew declared upon affidavit that they had made no resistance; that there were no arms on board the Tornado, but that they were nevertheless subjected to the greatest violence; that they were not permitted to put on their clothes before they were hurried on board the Spanish vessel; that they were allowed no water to wash themselves; that no hammocks or beds were allowed them; and that the Spanish Captain threatened to punish them when they complained of this ill-usage. They further stated that many of them were severely injured by being kept in irons for a long period. He merely alluded to these facts to show the spirit in which the Spaniards had treated the crew, a spirit which no amount of suspicion as to the character of the vessel would have justified. The Spanish Courts had directed that the decision of the Court declaring the vessel to have been lawfully seized was illegal, and therefore he had hoped that the Spanish Government would have been compelled by the noble Lord to indemnify the crew for their detention. While regretting that he was compelled to differ in this case from the noble Lord, than whom no one sympathized more with his fellow-countrymen when unjustly suffering at the hands of foreign nations, he hoped that the noble Lord would maintain the dignity of the country and the just rights of Englishmen by insisting upon an indemnity being made to the crew of this vessel who had been so subjected to this unjustifiable ill-usage.
§ SIR ROBERT COLLIER
said, the case of both parties to this dispute had been very forcibly stated by those who had constituted themselves their respective advocates; but he must express his regret that while the matter was still pending before the competent tribunals to determine the question the merits of the case had been entered into in any way in that House. As a former Law Officer of the Crown, he felt bound to say that he did not think the Government, upon any evidence which had as yet been offered, or upon any arguments employed by his hon. Friend, would have been justified in taking upon themselves the serious responsibility of stopping this vessel. The question might be regarded in two aspects—the legality of the capture of the vessel, and the treatment of the crew. Now, upon the latter point, they were fully in a position to express an opinion, because they had the whole of the facts before them, and he did not hesitate to say that the conduct of the Spanish Government, in this respect, was entirely without excuse or palliation. It should, too, be borne in mind that the crew were detained, not as prisoners of war, but as witnesses, and it was perfectly unparalleled in the annals of Prize Courts that the whole of a crew should be detained, as the crew had been in this case, for seven or eight months as witnesses. In the very nature of a Prize Court the evidence of some of the crew would have been required, but making allowance for some exaggeration, which it was but natural to expect, it must be acknowledged that the crew had been subjected to a great deal of unnecessarily harsh treatment. Their boxes were broken open and their goods had been plundered, according to their statement, and he believed that that statement had not been very distinctly denied. It was said, too, that some of them were kept in irons under a burning sun, and that others were kept for a month with scarcely water sufficient to wash, and without the ordinary conveniences of civilized life. He thought that the noble Lord had been quite right in drawing a distinction between the two questions of the capture of the vessel and the treatment of the crew. He believed, too, that the noble Lord was perfectly right in instructing our representatives to demand, not merely the liberation of the prisoners—a demand which might well have been made earlier—but also an indemnity for the hardships they had undergone. The noble Lord was not 2062 merely justified in demanding compensation, but he was bound to do so; and he (Sir Robert Collier) should be glad to know before the debate concluded that the noble Lord intended to persist in that demand. Upon the question of the capture of the vessel, it appeared to him that the Attorney General had entirely failed to answer the objections urged by his hon. and learned Friend the Member for Richmond (Sir Roundell Palmer). His hon. and learned Friend maintained that the Law Advisers of the Crown would have been perfectly justified in treating the decision of the Prize Court as null and void if it had been a final sentence, but, inasmuch as it was shown that the proceedings which had been taken were only of an interlocutory character, his hon. and learned Friend maintained that such a course was unjustifiable. Although we were not bound to submit to decisions affecting our subjects arrived at in defiance of the fundamental principles of natural justice, and the principles by which the proceedings of civilized tribunals were regulated, we were not, on the other hand, entitled to insist upon foreign Courts adopting our own particular forms of judicial procedure. And, therefore, though the proceedings of the Spanish Court might have been tedious, protracted, and burdensome, we had no right on those grounds to declare their sentence null and void. The report of the auditor did not appear to have been a final judgment, and it did not seem that any substantial injustice would be committed by an auditor giving an adverse opinion so long as the power existed of having the case brought before a competent tribunal and fully heard. The Government, he believed, had gone too far in their conclusions; but, having arrived at the conclusion they had done, he thought it was their duty to have insisted upon the restitution of the vessel. But the Government did not act up to their conclusions, and in so doing acted rightly, though they arrived at their decision by two wrong steps. On page 60 of the Correspondence, the noble Lord, after declaring that proceedings in the case were "absolutely null and void," suggested that the Spanish Government—No longer relying on the proceedings at Cadiz, may desire to have recourse to another form of procedure more comformable to International Law, and in harmony with what the Spanish lawyers affirm to be the laws and institutions of Spain.But, suppose this second set of proceedings had afterwards to be declared null and void, was the Spanish Government to 2063 commence a third set? If the proceedings were really null and void, the noble Lord should have required the restitution of the vessel. Happily that was not done, and in this respect he thought the noble Lord was right, because he believed the opinion as to the nullity of the former sentence was wrong. There was no doubt that the Minister of Marine was the Court of Appeal to which the former decision would in the former case be carried; and it would have been better if the owners of the vessel had been told to appeal to the Minister, instead of being informed that the proceedings were null and void. But whatever had been done in the past, he hoped the noble Lord would insist on the termination of all proceedings with respect to the Tornado within a reasonable time, because the time was approaching when the delays which had arisen in the case would amount to a denial of justice; in a short time the owners of the vessel would be in the same position as if there had been no trial at all. He concurred with the hon. and learned Member for Richmond in saying that the noble Lord had on the whole taken the right course; he had been right in the end, though wrong in one or two of the steps by which he had secured that end. The time, however, had now come for entering upon a new course of negotiation; it must be distinctly understood that there should be limits to the arrogance and impertinence of the weaker Power and some limit also to the forbearance of the strong.
§ MR. BRETT
observed that the first question to consider was as to whether the belligerent Power was justified in taking the vessel. Reasonable grounds for suspicion would justify a seizure, and the hon. Member for Galway (Mr. Gregory) had argued that there was not only a case of suspicion, but that the ship should be detained. The hon. Member for Honiton (Mr. Baillie Cochrane) however, had said that the vessel should not be condemned because she was innocent. As to the soundness of these opposite conclusions, the House was not in a position and had not the right to determine. The most simple person, however, after hearing the statements which ahd been made, would conclude that a case of the gravest suspicion had arisen against the Tornado, and if the House were called upon to-day to decide as to whether it were a Chilian ship or not, he believed hon. Members would come to the conclusion that the balance of evidence was in favour of its having been sold to the Chilian Go- 2064 vernment. The Spanish Government, then, was justified in taking the vessel, and no one could say that the Foreign Secretary should have prevented the trial. All that the neutral Power could insist on was that the ship should be tried before a properly constituted Court, by laws which accorded with natural justice; and the only thing that could be objected to in connection with such a trial would be the sentence. Thus, the whole point in dispute between the hon. and learned Member for Richmond and the Foreign Secretary was as to whether what was objected to was a sentence, or merely a report touching a case in course of being tried. That could be ascertained by deciding whether any further steps were needed in order to bring the trial to an end without respect to power of appeal. The Attorney General had made out that a sentence had been passed, and the hon. and learned Members for Richmond and Plymouth had both admitted that it was a sentence contrary to natural justice. The hon. and learned Member for Plymouth said that these men were detained only as witnesses, but that was not the only ground on which they were detained. If the Tornado was really a Chilian vessel of war, and the men went out in her knowing that fact, the Spanish Government had a right to detain the crew to see whether they were not prisoners of war. No complaint appeared to have been made against the conduct of the Foreign Office in this transaction; and as to the Opinion of the Law Officers of the present Government, he submitted that it was more correct than the criticisms upon their conduct which the House had heard from the Law Officers of the late Government.
§ MR. WYLD
said, he was quite sure from the tone of the discussion, that the crew of the Tornado, in whom he felt more particularly interested, would receive impartial justice at the hands of Her Majesty's Government. The question was, whether the Spanish Government had or had not committed an illegal act? He contended that they had. The papers of the Tornado were perfectly regular, and her owners were anxious to have the question investigated upon its legal merits. They asserted that they had never parted with the ownership of the vessel, and their object was to send her to a port on the South American coast, and that the Captain and crew were cognizant of the legal character of the voyage. There was no proof of any transfer of the ownership of the vessel. 2065 The men only received the ordinary rate of pay, and no special inducements were offered which would lead to the suspicion that they were shipped for dangerous service. It was believed that the Government of the Argentine Republic were in want of a vessel of this kind, and a British shipowner had a right to send his ship to any port at which he was likely to find a purchaser for her. It was, no doubt, alleged that the Tornado was a war vessel; and it might be true that the antecedents of the vessel were such as to justify the Spanish Government in getting possession of her and taking her into Cadiz. It appeared that there was no law in Spain under which a new trial could be granted to the claimants of the vessel or to the injured crew; and that it would be necessary for the Cortes to pass a special law for the purpose; but he could not conceive it possible for the British nation to submit to the condemnation, upon an ex post facto law, of a vessel claiming to be British. The whole course of the proceedings at Cadiz was an outrage on every law of civilization, and the sentence arrived at by the Spanish tribunal had been very properly protested against by the noble Lord the Foreign Secretary. The conduct of the Spanish Government towards the crew of the vessel was barbarous in the extreme.
The general tenour of the debate is so little hostile to the course adopted by the Government, and there have been so many expressions of confidence from both sides, that it will not be necessary for me to trouble the House at any length. Before going into the case of the Tornado, I wish to refer to one or two other points incidentally raised. The hon. Member for Galway (Mr. Gregory) has alluded to the Victoria, but nothing is to be said or done further in that case. The justice of our claim is not disputed, but has been admitted frankly and fairly by the Spanish Government. I will not say that the claim was evaded in the first instance; but the settlement was delayed from time to time upon one pretext after another, and it became necessary to urge it in an emphatic and serious manner. I would not have reverted to this question if it were not that the allusion of the hon. Member for Galway gives me an opportunity of denying that which I have often seen publicly reported—namely, that a menace was used, or was intended to be used, to bring about the result which has been obtained. That is not the fact. With a high spirited and sensitive people like 2066 the Spaniards no more unwise course could possibly have been taken, nor one more likely to defeat its own object. With regard to questions arising out of the British possession of Gibraltar, they are far too grave to be dealt with incidentally in the course of debate on another subject. I can quite understand that Spanish feeling may not be favourable to our retention of the fortress, but there is an English as well as a Spanish feeling to be considered; and I do not think that this country, as a whole, would be particularly well pleased if they heard that the cession of that fortress was to be proposed. I cannot, of course, say what turn opinions may take in the future, but for the present this is hardly a practical question. No doubt questions as to smuggling do arise there, and form a fruitful subject of misunderstanding, and no doubt we are bound to do nothing to encourage the infractions of the revenue laws of a foreign country; but, on the other hand, it cannot be contended that it is our duty to enforce those laws. If the Spanish Government wish to put an end to the contraband trade now carried on to a great extent, they have sufficient remedies in their own hands, either by appointing revenue officers whom they can trust, or by lowering their tariff. As to the question of the Tornado, my part in the discussion must necessarily be very limited, because whatever other Members may feel themselves at liberty to do, I should not be justified in expressing any opinion, direct or indirect, upon the merits of a case which is still under judicial consideration, and the decision upon which may be, and very likely will be, the subject of diplomatic comment and representation. The hon. Member for Galway asked why the Government did not prevent all these difficulties by detaining the vessels before they sailed? We did not do so because we were advised that we had no legal power to do so. I communicated with the Law Officers of the Crown, with the Admiralty, and with the Customs Department, and the necessary evidence was not forthcoming. If the complaint is that we did not go beyond the law in order to prevent these vessels sailing, I say that is an extreme course, only justified, if at all, by absolute necessity, which might have involved the State in very heavy pecuniary liabilities, and which might furnish an inconvenient, and even a dangerous, precedent for the future. As to the inadequacy of the present law for the purpose of enforcing 2067 neutrality, that is, no doubt, a subject on which there is a great deal to be said, and I am not disposed to contend that the law, as it stands at present, is in an absolutely satisfactory state. I am the last person who should make such an assertion, because one of the first steps taken when the present Government came into power was to appoint a Commission to inquire into that subject with a view to prevent the recurrence of such events as some years ago very nearly lead us into difficulty with the Government of the United States of America; at the same time I fear that whatever the state of the law may be, the means of evasion will always be found. While ships of war and material of war are allowed to be sold in foreign countries, you will always find persons who will be ready and able to evade the law successfully. I doubt whether any Government in the world has succeeded in absolutely enforcing neutrality upon its subjects. Passing from that there are three questions connected with this case to which the attention of the House has been called—one, the legality or justice of the original capture; another, the treatment of the crew; and thirdly, the legality and justice of the subsequent proceedings of the Spanish Government. With regard to the first, the legality of the original capture, I am bound to say that no one can blame the Spanish Government for exercising their right in that respect. That they, with all independent nations, possess the right of capture in such cases, is undoubted, subject always to this—that if the capture cannot be justified according to International Law the owners, the crew, and generally all who are aggrieved thereby are entitled to compensation. I do not think, however, it can be said under all the circumstances—undoubtedly of strong suspicion—that the Spanish Government was not justified in making the capture. They did it at their own risk, and that a primâ facie case might be made out by them seems clear enough. The capture therefore never has been made a matter of remonstrance. Then, as to the treatment of the crew, I think it is quite impossible to deny—I never have denied, I have asserted the contrary very strongly—that both at the moment of capture and subsequently, during the earlier period of their detention, very undue and unnecessary harshness was employed by the Spanish Government. Any one who reads the account given by the crew themselves of what happened at the capture of the vessel, will, I think come to the conclusion— 2068 although some little exaggeration was inevitable under the circumstances—that things occurred, not creditable to the commander of the Spanish vessel or to the honour and discipline of the Spanish navy. With regard to the treatment of the crew after their arrival, that was the subject of very early and emphatic representation on the part of the Foreign Office. We could not deny the right of the Spanish Government to detain the men pending the trial, and while their evidence was wanted; but we did everything in our power, and we did it successfully, to obtain a mitigation of their harsh treatment while they were detained, to press on the trial itself, and to obtain the release of the men as soon as their evidence had been taken. In that we succeeded, with the single exception of the case of M'Pherson, which every one who reads the papers will see stands on very peculiar and exceptional grounds. And I may say that, apart from the question of law and justice, as a matter of national interest concerning our relations with Spain, I rejoice that we did obtain their release; for if they had been longer detained, or if their harsh treatment had been continued, such a state of feeling would have been produced in this country as must have rendered it very difficult for the House or the public to look at the matter calmly, and so the chance of an amicable settlement would have been very much diminished. The late Solicitor General has raised the question of indemnity to the crew. I understood him to say that, in his opinion, they were entitled to that indemnity. Any one who looks at the Papers will see that we did not make an unconditional demand of indemnity on the part of the men. What we said was that in demanding their release we did not thereby waive any claim they might have to be indemnified for their detention and the loss they had sustained. I am not willing to state off hand what claim they have; but, as at present advised, I should conceive their claim to indemnity would turn on the ultimate decision as to the character of the vessel. If the vessel is Chilian they are prisoners of war, and though the House and the Government may regret what has happened to these men, who were probably ignorant of the character of the vessel, it is not easy to see what claim can in that case be put forward on their behalf. I hardly venture on the legal argument raised between the Attorney General and the hon. and learned Member for Richmond. We acted on the legal 2069 advice we received. The question resolves itself into a very narrow compass—Was the form of trial against which we protested as being unjust, and contrary to the general principles of law, merely informal or did it involve substantial injustice? If it were merely informal, no doubt we were wrong. Every nation has a right to conduct its own Courts in its own way. But we contend that there was more than an informality—that substantial injustice was involved. We say that to decide against a party first and give him an appeal afterwards is not the same thing as to give him a fair hearing in the first instance. We say that the opportunity of a fair hearing and defence is inseparable from the very idea of Courts of Law, and from the general principles of justice which all nations are bound to observe. Of course in saying that I do not at all mean to bear harshly on the Spanish Government for what may be considered the faults of their procedure. We are bound to look at home; and we may remember the time has not long gone by when a person on trial for his life was not allowed counsel for his defence. We may further remember that the Spanish Government has itself had very little experience in trials of this kind. I do not know whether I am correct; but, if I am rightly informed, this is only the second or third case of the kind which has taken place in their Courts for half a century, and therefore considerable allowance ought to be made for mere informalities in those proceedings. But that does not affect the proposition for which we contend—to a fair hearing they were entitled, and that fair hearing we claimed for them. The late Solicitor General says you ought either not to make a claim, or, having made it, you ought to have persisted in it and demanded the restitution of the ship. That he says, is the logical consequence. Now, with submission, I contend there is a difference between being entitled to put forward a claim, and being bound to put it forward. It is a question open to argument whether, after the objections we have made to these proceedings as being null and void, we may have been justified in founding upon that the further claim for a discontinuance of all further proceedings and the restitution of the vessel; but that would be pushing our right—if it were a right—to an extreme. In a case of this kind we were bound to use our discretion, and it does not follow that because International Law would justify so extreme a 2070 course, we were bound to follow it irrespective of what we might consider the substantial justice of the case. Substantial justice was, in our opinion, sufficiently met by giving the parties a new trial upon the whole case. The present state of the matter appears to be this:—The Spanish Government admit the nullity of the proceedings, not on the ground on which we objected, but on that of having sent the matter to the wrong tribunal, and other irregularities. The question is now before the Council of State, and, if I am not misinformed, an almost immediate decision may be expected. When that decision has been given, we may be able to see our way more clearly. We shall press if necessary, for all reasonable speed; we shall continue carefully and anxiously to watch the case. It is for the owners to defend themselves before the proper tribunals, and, beyond watching the case and protesting against such an amount of delay as may have the effect of defeating the ends of justice, I do not see, as at present advised, and in the present position of affairs, that it is our duty to interfere. At the same time I am not prepared to say what we may do under the pressure of a state of things which has not occurred.
§ MR. WHALLEY
thought the argument of the noble Lord unanswerable and conclusive; but the result of the whole would be that the mercantile community would materially suffer.
§ Motion, by leave, withdrawn.
§ Committee deferred till To-morrow.