MR. BENTINCK, in rising to ask the Under Secretary of State for Foreign Affairs the Questions of which he had given Notice, respecting the capture and condemnation of the Tornado, said, he had not ventured to put these Questions on the Paper without a full consideration of the difficulties of the case. First, there was the difficulty naturally incident to a Session so full of business as the present; and also that Foreign Affairs, owing to the pressure of matters of more domestic interest, were not discussed in that House so frequently as they once were; and in asking the attention of the House to the subject, there was also a special difficulty, of the fact that the capture of the vessel took place nearly four years ago; that it had been discussed to and fro between the English 2110 and Spanish Governments ever since, the correspondence being comprised in 750 pages of Blue Book; and in the singular hesitation and contradiction displayed by the British Foreign Office. But there was, nevertheless, the almost absolute authority that there had been no legal trial of the question; but that a British ship had been unjustly condemned, and that the interests of British subjects had been sacrificed. The subject was still further complicated by the constant references to Spanish law, which nobody appeared to understand—and the Spaniards themselves least of all. For all these reasons, he had thought it best to address a series of Questions to the Government containing the principal points of the case. It was not his intention to go into the merits of the case of the 21 British subjects who had been imprisoned and plundered—he rather desired to inquire of the Government what was the state of the law at the present moment. The first difference with reference to these prize cases occurred in 1865, when the war between Spain and Chili broke out, during which the proceedings of the former country were characteristic of the arbitrary acts of their Government, both in the present age and in times past. From October, 1865, the Blue Books were filled from first to last with protests from the British and Foreign Governments against the acts of Spanish commanders, with complaints of disregard of blockades, of illegal seizure of vessels, and of illegal prize tribunals. The principal of these complaints was that Admiral Pareja, the Spanish Commander-in-Chief, had determined to constitute a Prize Court on board his flag-ship. Against these illegal proceedings, successive Ministers for Foreign Affairs—Earl Russell and the Earl of Clarendon—had warmly and persistently remonstrated, insisting that no British ship should be tried or condemned except by a properly constituted tribunal. [The hon. Member then read numerous extracts from the "Correspondence during the War between Spain and Chili," pp. 67, 69, 104, 118, 127, 144, 157.] Summed up, therefore, the demands of the British Government were, that a neutral vessel had a right to be tried by a properly constituted Court of First Instance, presided over by a Judge possessed of a competent knowledge of 2111 law, to have agents, counsel, and all substance of justice, and moreover an appeal to a proper appellate tribunal. All these demands the British Government were led to believe would be complied with. Under these circumstances he wished to ask Her Majesty's Government whether the law laid down in Lord Clarendon's dispatches was not general in its purport, and not limited to the particular cases of prizes adjudicated by Admiral Pareja? The case of the Tornado arose in 1866. She sailed from Leith, after due examination by the Custom House authorities, on the 10th of August in that year. She arrived at Madeira on the 21st. She left Funchal at half-past 8 o'clock on the following evening, and at half-past 10 she was captured by the Spanish frigate Gerona. It was not his intention to enter into the question of the treatment of the crew; but, as regarded the capture of the vessel, he wished to point out that it was, from first to last, undoubtedly illegal, and that it was the duty of our Government to protest against it directly it occurred, and to insist, in the strongest manner, upon the restitution of the ship. The capture was illegal: in the first place, it was a violation of the right of asylum; and secondly, because it was effected in Portuguese waters. He knew that this question had been raised by the claimants, and that the Foreign Office said that it was one which must be tried by the Prize Court; but, in matter of fact, claimants never had had the opportunity of laying their case at all before any tribunal which had the slightest pretension to administer justice upon recognized principles. That the vessel was captured within Portuguese waters was admitted by the captain of the Gerona (Captain Benito Di Escalera), who, after stating that his orders were to intercept the Tornado at any cost, reports his proceedings in the road of Madeira, and his arrangements with persons in that port for capturing the vessel the moment she should put to sea. Now, according to the highest authorities, and the decision of Lord Stowell, in the case of the Anna, with which his hon. Friend was, no doubt, familiar, the acts of the Spanish captain were sufficient to render the capture illegal. It had been laid down, and would be found in Wheaton, at page 715, that captures made by vessels stationed without, or hovering on the coast of maritime juris- 2112 dictions, were absolutely illegal and void, and that all proceedings in neutral territories, preparatory to acts of hostility, were equally illegal. The admitted combination, therefore, between the captains of the Spanish vessels and the Spanish Consul to signal the movements of the British ship in a neutral port was a clear breach of international law, and was sufficient of itself to render the capture void. According to the statement of the crew, the capture was effected at half-past 10 o'clock in the evening, within a mile of the shore, and, therefore, within Portuguese waters. The Spanish authorities disputed that statement, and said the capture was effected 4 miles to the northward of a certain cape. When they came to examine the distances—and he saw by the newspapers that a letter had been written to the Foreign Office giving the exact measurements as verified by the highest geographical authorities in this country—they would find that if the Spanish captain's statement be true, he must have made 33½ geographical miles in less than two hours. That, however, was impossible; and, therefore, there was no reliable evidence to contradict the positive affidavits of the crew and captain of the Tornado, and there could not be the slightest doubt that the capture was, from first to last, illegal. Under these circumstances, it did seem most extraordinary that the Foreign Office should have failed to raise this point, and should have allowed this ship to be captured by the Spaniards without remonstrance, and without the assertion of that right which every Foreign Government asserted against England wherever similar cases arose in our jurisdiction. This capture of the Tornado became the subject of serious remonstrance on the part of Lord Stanley, who was then at the Foreign Office. The principal point made by the Foreign Office was against the character of the first tribunal—that it was composed entirely of naval officers, sitting without any legal assistance. Admiral Quesada, who had ordered the seizure of the ship, was the President; three of the officers of the Court were actually interested in the capture; and all, including the President, were totally ignorant of international or municipal law. Now, if it should be said that they were assisted by a legal assessor, and that, therefore, the tribunal had, to some extent, a 2113 legal constitution, he (Mr. Bentinck) had a contradiction upon the Spanish Government's own showing. In a despatch to Sir John Crampton (Correspondence (1867) Part I. No. 135), General Calonge said the protestors had disregarded the character of the functionary from whom emanated the Report: the assessor was not a judge; but his duties were confined to recapitulating the motives and legal provisions which might serve as a foundation for its opinion. Now, he asked hon. Gentlemen, I who were familiar with legal forms, whether the assessor in this case fulfilled the office usually discharged by such a functionary? He had no voice in the decision of the Court, but simply formed his own opinion, which he might, or might not, communicate to the Court; and was afterwards employed in drawing up the Report. Therefore, it was impossible to say that, by the mere appointment of such a person, this tribunal embraced any element cognizant of municipal or International Law. The principal objections of our Foreign Office to these proceedings were set forth in a despatch addressed by Sir John Crampton to the Spanish Government, dated November 6. On the 21st of November, a most important despatch was written by General Calonge (Correspondence (1867) Part I. No. 103). He therein stated that the defendant in a Spanish Court, the owner of a prize, was fully at liberty, according to Spanish law, to defend his interests at every stage of the suit; and that the British Government had not sufficiently appreciated the difference between the preliminary and the full inquiry—the first was necessarily secret; but in the second, the suit had arrived at a stage when the defendant could take measures for his defence; he might also appeal against the sentence which might be given in the first instance, and amplify in the second instance his defence for sustaining the appeal. On the 19th of January, not long after the despatch, Lord Stanley intimated his doubts as to the legal character of the ship; but on the 8th of February, he wrote a review of the case, which constituted his (Mr. Bentinck's) strongest point against the Government. In that despatch, Lord Stanley said—
A neutral State consents that a vessel belonging to its subjects may be seized on the high seas only upon the faith and understanding 2114 that such vessel shall be tried in a Court in which International, and not municipal, law is administered. It is an essential requirement of such trial that the rules of natural justice shall be observed—that the proceedings shall not be protracted by unnecessary delay, which is in itself a wrong, and that a sentence shall not be pronounced in the compulsory absence of the parties interested. Her Majesty's Government do not instruct you to dwell on the disregard shown by the Spanish Government to the assurances which they so constantly gave that the parties should be heard before a decision was pronounced in the case. And if it be true that the appeal is to be made to the same Court which pronounced the original sentence, the position of the defendant is so aggravated that it is a mere mockery to offer him an appeal. He has been condemned already behind his back and in the dark by the Court whom he must persuade to recognize their own wrongdoing as an indispensable condition of his acquittal on appeal. Such a mode of proceeding has been hitherto unknown among civilized States. Her Majesty's Government, under all these circumstances, cannot acquiesce in the consequence of its being applied to British subjects or their property."—[Correspondence (1867) Part I. No. 123.]On the 28th of January, Captain Collier and other parties were cited to appear before the Junta in "plenario" proceedings; but under the advice of their Spanish counsel they limited their defence to a protest against the jurisdiction of the Court. The Junta, having declared its own competency, proceeded to re-examine witnesses and pronounced a ratification on the 26th of March, 1867. It might be argued that the parties interested, having failed to discuss their case on its merits, barred their rights; but the answer was, that they wore acting under the direction of the Foreign Office, which, from first to last, protested that the sentence was void, and it was clear they could not have acted contrary to the principles which the Foreign Office laid down without forfeiting the protection and assistance which they might expect to receive from their own Government. The Foreign Office, therefore, could not object, neither could Spain; for it was an important element in the case that the defence adopted in the first instance was a demurrer to the jurisdiction, because the suit had been commenced in a judicial and not in an administrative form; and, more than that, the demurrer was allowed. No man acquainted with the principle or practice of law could object that a defendant had failed to adduce evidence when he had successfully pleaded a demurrer to the jurisdiction; but it was clear, from the evidence of Sir John Crampton and. of Mr. Dunlop, the Con- 2115 sul at Cadiz, that the condemnation of this vessel was a foregone conclusion on the part of the Spanish Government; and he could prove that from their own statements. On the 4th of March, 1867, Sir John Crampton stated that little confidence was felt that a decision favourable to the defendants could be obtained on the merits of the ease, no matter in what tribunal the case was judged, or to what Court of Appeal it might be referred. On the 26th of March, Mr. Consul Dunlop, an unimpeachable witness, wrote to Sir John Crampton to say he had, in conformity with instructions, attended the Court or Commission assembled under Admiral Quesada's orders, for the re-examination of Mr. Collier and seven of the crew, with the view of ratifying the former evidence, and repealing the sentence. Mr. Dunlop proceeded to give a very extraordinary narrative of the proceedings on this occasion. The hon. Member then read Mr. Consul Dunlop's letter from the Correspondence (1867) Part VI. No. 2. On the 21st of March final condemnation was pronounced, and on the 11th of April the protest of the claimants was entered in due form. On the 20th April Lord Stanley wrote, complaining of the course adopted by the Spanish Government, and adding—Her Majesty's Government would not refuse to allow the proceedings, informal and unjust as they were, to be set aside with a view to a new and proper trial. Her Majesty's Government would probably agree to any fair proposal for a new judicial investigation.The demurrer was then heard before the Court of War and Marine; and the sentence of the Inferior Prize Court was set aside after nearly a year's delay—on the ground that the suit was administrative and not judicial. He would here point out that there was a wide difference existing between the administrative and judicial suits in Spain. In a judicial suit a private person was the claimant; in an administrative suit the claimant was the Government. There was this difference between the two proceedings—whereas in a judicial suit the claimant or the defendant had a positive right to appeal to the Council of State; in an administrative suit, where the Government was the claimant, the defendant could not appeal except by the permission of the Government. Therefore it was obvious that by changing the suit 2116 from a judicial to an administrative one the Spanish Government obtained a great advantage for themselves by acquiring the power of preventing any appeal being made by the defendants.Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
MR. BENTINCKAfter the Supreme Court had quashed the first proceedings, the case was hung up for two months. During the interval a debate took place in that House upon the case of the Tornado, in which the present Attorney General protested eloquently against the cruelty and injustice which the captain and crew of the Tornado had undergone. The remarkable circumstance in that debate was, that it appeared Lord Stanley had been induced to believe that the question was at the time actually before the Council of State, and that an immediate decision might be expected. Lord Stanley was misled by the Spanish Government; for on the 27th of April, four days after Lord Stanley had made that statement, the Council of State issued a Royal Order, apparently manufactured for the very denial of justice, and by that order Captain Collier and the parties interested with him were cited to appear within 30 days before the same Court, described by Consul Dunlop as unworthy of any civilized State. He apprehended that the main point on which the Government would rely would be, that it was the duty of the owners and parties interested to appear and plead on this the occasion of the second trial, and that, in default, their remedy was gone. But it must be shown, if Lord Clarendon's law was not repudiated, that the Court fulfilled the conditions laid down by Lord Clarendon. It must be shown, first, that the Court fulfilled the conditions as regards the qualifications of the Judge; and secondly, that a fair trial of the question at issue took place when International as well as municipal law was duly administered. The proceedings of the new suit were defective in three material particulars—first, with reference to the constitution of the Court; second, from the nature of the evidence; and third, from the want of parties. First, with reference to the Court, excepting Admiral Quesada, who was dead, and one other officer, the Court was composed of the same persons 2117 who sat on the first occasion, and they were destitute of the qualifications for Judges, as was clearly shown by the statement of Consul Dunlop. Further, as they sat on the former trial, any opinion they might express as Judges on the second would, as Lord Stanley said, be a mockery. Then, as to the character of the evidence, it was also condemned by Lord Stanley. The suit was entirely defective for want of parties. The owners were absent, Captain Collier was on the West Coast of Africa, the crew were scattered all over the world, and the Spanish Government by their citation gave a period only of 30 days for the parties to appear. The owners, however, had a representative at Madrid, and he consulted eminent lawyers, who advised a protest. A petition was presented to the Court, received, and referred by it to the Council of State two or three months afterwards, but no further notice was taken of it. On the 1st of July, 1868, without making any communication to the defendants or hearing any further evidence on their behalf, the Court pronounced its decision, which was the same as that previously given. A few days after, the representative of the owner presented a petition appealing to the Council of State, and on the 11th of July the Council of State, without hearing the defendants at all, pronounced a final decree confirming the decision of the Court below. Under these circumstances, the denial of justice was perfectly clear. The whole case was well summed up by Senor Retortillo, (Correspondence (1869) Part No. 54) in consultation with Sir John Crampton, pointing out that it would have been absurd to defend before the Junta of Cadiz, and advising a defence before the Council of State, where the defendants would have full rights. The Council of State, besides, was bound to hear the case by the obligations of diplomatic notes, and by the power it had to do so even under Spanish law. It was clear that if diplomatic notes had never been written the Spanish Government might have allowed the appeal, and their refusal to do so by availing themselves of a technical point was a clear denial of justice, as well as the repudiation of a solemn engagement. That was Lord Stanley's opinion, for in his last despatch, dated August 24th, he insisted on a fair trial, and declared 2118 General Calonge's despatch to be an authoritative statement that an appeal in prize cases was allowed. There the case rested till Lord Clarendon succeeded to the Foreign Office. The first despatch on the subject written by Lord Clarendon, dated the 17th of December, 1868, was one of the most extraordinary productions ever issued from the Foreign Office. It was quite inconceivable how a statesman of Lord Clarendon's experience should ever have put his name to such a document. That despatch was wrong in its facts, inconsistent in its conclusions, and most unreasonable in its demands; and, above all, it showed signs of yielding, of which the unscrupulous Government of Spain did not fail to avail itself with all celerity. The hon. Member then read in extenso the despatch of the Earl of Clarendon to Sir John Crampton (Correspondence (1869) No. 58). In the last paragraph of the despatch Lord Clarendon said—
I have to instruct you to represent to the Spanish Government the circumstances under which the claimants postponed and declined to enter into their defence, and you will request that under these circumstances a special tribunal, after hearing both sides, may determine whether the Tornado was or was not a good prize.Here we find Lord Clarendon abandoning his rights and asking most unreasonably for a Special Tribunal, to which he was not entitled. This demand, as a matter of course, was refused by the Spanish Minister on the 4th of May, who then communicated to the British Government the Memorandum of the Council of State referred to in my last Question. This Memorandum professed to give the reasons why the appeal was denied. The Council of State allege, that the administrative nature of the matter did not, however, prevent the interested parties from bringing all the proofs and making all the defence compatible with their rights, and they refer to the organic law of the Tribunal of Cadiz, according to which by No. 8 of Article XLV., the Government was obliged to hear the Council as to the legality of the maritime prizes, and to which the Royal Order of the 27th July, 1867, declared this obligation was in so explicit and decisive a manner that after it they could entertain no sort of doubt upon, that point. He (Mr. Bentinck) had searched through the Papers relating to the case, and had been wholly unable to 2119 find either Section 8, Article XLV., of the Organic Law of the Council of State, or the Royal Order, dated July 27, 1867, under which it was alleged that claimants might have produced before the Council of State, the arguments which they did not choose to bring before the Court in the first instance, and he hoped there would be no objection to produce these Papers. For his own part, he believed this allegation, on the part of the Spanish Government, to be a pure and simple fabrication. The Foreign Office then referred these matters to the parties interested, whose replies, evidently settled by counsel, were both explicit and unanswerable. But shortly after their receipt, without either explanation or comment, in a brief but a degrading despatch, dated 25th June, 1869, Lord Clarendon hauled down his flag to the Spanish Government, and, in page 24, writes to Mr. French—That Her Majesty's Government, after the fullest consideration, have come to the conclusion that, although there are many circumstances connected with the proceedings against the steamer Tornado to which exceptions might very reasonably be taken, yet, upon the whole, they are prepared to acquiesce in the sentence of condemnation.If he were dealing with an Irish question, he should be strongly tempted to speak of that despatch as "felonious." Why should the Foreign Secretary go out of his way to make admissions? He had always understood it was the duty of the Foreign Office to take exceptions to the conduct of foreigners where these become necessary, and to press the matter upon the attention of the particular Government at the proper time. There was scarcely an act of the Spanish Government to which exception might not be taken; but what was the use of recording irregularities, if in a case like that of the Tornado the Spaniards were allowed to have it all their own way? He had now made his statement with as much brevity as possible, and it only remained for him, in the name of the maritime interests of this country, to ask Her Majesty's Government, whether the law laid down by Lord Clarendon in 1865 was good law or bad law; and, in the latter event, by what new code of maritime regulations the commerce of this country was to be regulated? The opinion was gaining ground upon the Continent that the 2120 power of England was no longer what it used to be; that a great disposition existed to surrender our rights, and that the only thing thought of was a policy of economy, so frightened had Her Majesty's Government become of certain hon. Gentlemen sitting below the Gangway. He well remembered the cases of the Cagliari and of Brazil, neither of which was so strong as the present case, though his hon. and learned Friend opposite (the Attorney General) in one of them won his spurs and a seat on the Treasury Bench. In the Cagliari case it was never proved that we were in the right; but, for the imprisonment of two British subjects, we extracted £3,000 from an old friend, or enemy, the King of Naples. Here, on the contrary, 51 British subjects had been plundered of some £1,500, and confined for months in Spanish dungeons, yet the Spanish Government were allowed to do wrong with impunity. The right hon. Gentleman at the head of the Government might have a very large majority at his back, and his popularity might be very great; but if he did not maintain a firm attitude where the maritime interests of the country were at stake, his majority would dwindle and his popularity fade away. On questions of foreign policy he had been opposed to Lord Palmerston, yet Lord Palmerston's foreign policy met with the approbation of this country. That policy was summed up in his well-known phrase of the Civis Romanus sum, a character of whom, in the present day, very little indeed was seen.
MR. OTWAYsaid, his hon. Friend (Mr. Bentinck) had entered into the question at unexpected length, after the promise which he (Mr. Otway) understood him to make of deferring the discussion of the merits of the question to another opportunity. His hon. Friend, however, had made several violent assumptions—that the Tornado was an innocent vessel prosecuting an innocent voyage; that she had been unjustly condemned by a Spanish tribunal; that a variety of opinions respecting the irregularity of the trial had been expressed at different times by the Foreign Office, and also as to the barbarous and oppressive treatment to which the crew were subjected. Of not one of these assertions had his hon. Friend thought it necessary to adduce any proof. The 2121 vigour of his language, however, was undeniable; for he thought it not unbecoming to accuse his noble Friend (the Earl of Clarendon) of having written a "felonious" despatch—one more degrading than any that had ever before emanated from a British Minister. [Mr. BENTINCK: No!] Well, on that point he would not argue with his hon. Friend; but it certainly would be his duty to show to the House what sort of vessel this was, and who the persons were on whose behalf the sympathy of the House, and the interference of the British Government was so warmly demanded. Of the many confident assertions made by his hon. Friend there was, unfortunately, but one in which he could fully concur, and that was the remark that it was very difficult to comprehend the proceedings of the Spanish tribunals. And, as both the Attorney General and himself had been accused of being unacquainted with the legal merits of the case, he would endeavour to give the House a short account of the legal aspect and stages of the controversy. All that the Government had a right to demand was, that the vessel should have a fair trial according to Spanish law. His hon. Friend (Mr. Bentinck) had declared that the tribunal was composed exclusively of naval officers. Such, however, was not the fact. The first Court that tried the case was the Junta of the Department of Cadiz, a permanent tribunal of naval officers aided by a legal officer, called an auditor, and acting under fixed rules and methods of procedure. The examination was conducted in strict accordance with Spanish law—namely, with closed doors; all the evidence taken was reduced to writing; and upon this evidence the auditor advised the Junta, and the Junta on the 15th of December, 1866, pronounced the prize good. This was the first step taken in the trial, and is that known as sumario (preliminary inquiry). But, according to Spanish law, if either party does not acquiesce in the decision given on the sumario process, then the decision goes for nothing, and the plenario, or contentious proceedings, begin. The depositions taken are communicated to the parties, and the case is argued by counsel in solemn form before the same Court, and from its second decision there is an appeal to a superior tribunal. On the decision of the 15th of December, 1866, being made 2122 known to the claimants, they protested against it, as well as against the power of the Junta to condemn the vessel. Doubtless, they imagined that the decision on the sumario process was a definitive sentence, and not merely a preliminary step in the legal proceedings, in which, according to Spanish law, they were at liberty not to acquiesce. When this protest of the claimants was made known, the Junta commenced the examination of the case on the plenario process, and called upon Captain Collier and the other interested parties to appear before the Court, and show cause why the vessel should not be condemned as lawful prize. This apparently the claimants refused to do, and continued their protest against the jurisdiction of the Junta and the validity of their proceedings. They were cautioned that if they did not appear and make their defence, the trial would proceed precisely as if they had so appeared. As to their receiving instruction from the Foreign Office in the matter, the Foreign Office had never interfered to give any advice. The trial went on, and the Court on the 21st of March, 1867, pronounced verdict on the plenario process, and condemned the vessel as good prize. Against this second verdict the interested parties again protested, and an appeal was carried to the Supreme Court of War and Marine, which pronounced their verdict null and void, not because the Prize Court was incompetent to try the case or had acted illegally either on the sumario or plenario process, as far as mode of procedure in regard to the evidence was concerned, but because it had pronounced sentence—in other words, that it had acted judicially instead of administratively. The Court was therefore ordered to try the case administratively, and Captain Collier and others were cited to appear and give evidence. The citation was acknowledged, and when the day for their appearing arrived, instead of making their defence, they merely entered a protest, and declined to give evidence. The grounds for their protest were based on the incompetency of the Court to deal with the case at all, and upon the injustice of allowing any portion of the evidence, taken either in the sumario or plenario, to be used again. They demanded a fresh trial before a fresh Court; but the Supreme Court of War 2123 and Marine, in quashing the verdict of the 21st of March, 1867, not only admitted the validity of the Court as a Court, but likewise admitted the validity of the evidence taken in the sumario, and Her Majesty's Government held precisely similar views. The new trial, therefore, was to commence from the original sumario—in other words, the Court was ordered to take evidence, hear counsel, &c, from this point; in fact, to institute a fresh plenario investigation, but not to pronounce sentence. This was done, and the evidence thus obtained was subsequently forwarded by the Court to the Minister of Marine at Madrid, and the whole case was submitted by him to the Council of State, which ratified the proceedings of the High Court, and pronounced the capture good. These proceedings might appear to be somewhat complicated; but they were strictly in accordance with Spanish law, and his hon. Friend had apparently forgotten that Her Majesty's Government had had the advantage of being advised in reference to this matter by gentlemen of very great legal eminence, gentlemen belonging not only to the present but also to the past Government—six legal gentlemen in all—and though he was far from underrating his hon. Friend's knowledge of International Law, he could not help feeling that Her Majesty's Government were perfectly justified in acting as they did, considering the advice they had received. His hon. Friend had stated that the vessel was captured illegally while sailing in Portuguese waters; but he (Mr. Otway) would remind his hon. Friend that that, again, was an assertion made without proof. But even if that were the case—and that it was so had been always denied—it would be the duty of the neutral Power and not of Her Majesty's Government to claim reparation. Her Majesty's Government were not slow to protect the rights of British citizens and of British ships when called upon to do so; and if the career of this vessel had been an innocent one, and if it could have been satisfactorily shown that in this case there had been any hardship and injustice inflicted, Her Majesty's Government would probably have thought it their duty to take some steps in the direction suggested by his hon. Friend. But what had been the career of this vessel, and what were the facts connected with her 2124 history? To those facts his hon. Friend had been too prudent to allude, for the fact was that this vessel had been steeped in crime from her very cradle. He held in his hand a document which he believed had not been seen by his hon. Friend. Indeed, if his hon. Friend had seen it he would scarcely have interested himself in this matter as he had done. This document was a statement made by the captain of the Cyclone who had had the Tornado with the Cyclone under his orders, both ships being in company and belonging to the same owners, and certified by him in writing to be correct. It contained evidence which fully bore out nearly every one of the charges alleged against the vessel by the Spanish Government. Now, his hon. Friend had said that the Foreign Office had continually changed its opinions on this matter; but in this his hon. Friend was mistaken, for the Foreign Office had always maintained that there was great suspicion about the vessel. All that they had done was to demand that there should be a trial by Spanish law, and when that had been done they gave that acquiescence in the proceedings which his hon. Friend had characterized as so degrading. It appeared that the vessel was built on the Clyde for the Confederates. She was, however, condemned by default, under the Foreign Enlistment Act, and remained in possession of our Government until the conclusion of the American War, when she was restored to the owners. In January, 1866, Her Majesty's Government received information that the Tornado and Cyclone were fitting out as Chilian privateers, Spain being at that time at war with Chili; but there was not sufficient evidence on which to detain them. They sailed for Hamburgh, from whence the Cyclone proceeded to Valparaiso and entered the Chilian service. The Tornado returned to Leith, after an unsuccessful attempt to ship arms from two vessels at the Faroe Islands. A fortnight afterwards she left Leith, nominally for Rio de Janeiro, but she called at Madeira to coal, and the day after leaving Madeira she was captured by a Spanish frigate and sent to Cadiz for trial. [Mr. BENTINCK: What is the date?] The document bore no date; but it was handed to him the other day while at the House by the gentleman who had written it, and the dates and other matters his hon. Friend could easily verify. 2125 The Tornado and the Cyclone were built, manned, and equipped alike, and were both under the command of Captain Holmes, at Hamburgh. Captain Holmes admitted that lie was furnished with two sets of letters—one describing her as an ordinary trader, bound to a Brazilian port; the other instructing him to avoid all Spanish cruisers, and to destroy the papers if chased or boarded by them; and, in the event of being pressed, to make for a Chilian port, there to take orders. When Captain Holmes returned to London he gave up the original instructions; but, previous to so doing, he had had photographs taken of them. When his hon. Friend (Mr. Bentinck), therefore, asked the Government to do all in their power to induce a neutral Power to seek reparation for a violation of neutrality he would ask the House whether this was a fitting case? His hon. Friend had addressed to him a series of questions which it was his duty to answer. His hon. Friend had complained that the proceedings connected with the Tornado had been drawn over a space of some years; but he had added to the difficulty of which he complained by extending that time back from the capture of the Tornado to that of the steam vessel Matias Cousino. Then his hon. Friend asked, Whether, in the matter of the Matias Cousino, Lord Clarendon, in three several Despatches, dated respectively the 1st of December, 1865, the 20th of December, 1865, and the 20th of February, 1866, and addressed to Sir John Crampton, then Her Majesty's Minister at Madrid, did not insist, on behalf of British subjects, that "The neutral has a right to be tried before a properly constituted Court, and that a civil Judge should try the case, &c.?" No doubt his noble Friend did use that language; but under circumstances altogether different from those described by his hon. Friend in the case of the Tornado. In the case of the Matias Cousino, the Admiral demanded that the Prize Court should be held on board his own ship, and under his own presidency. Sir John Crampton thereupon pointed out that the Admiral's blockading ship was not the proper place to try such a question, because the parties interested in the vessel had a right to a Court where they could have proper legal assistance. His hon. Friend also asked whether the rights of neutrals thus defined and asserted by Lord Carendon were not ad- 2126 mitted by the Spanish Minister De Castro in 1866. On the contrary, Senor De Castro, in his note of the 6th of January, 1866, wrote as follows:—
The second consideration which I must notice is that which affirms that, according to International Law, neutrals have a right to require that the Prize Court shall be presided over by a 'civil Judge of sufficient legal experience,' a principle which does not appear to me to be in conformity with what publicists of the highest authority have written on the subject. The Government of the country to which the capturing vessel belongs being the Judge recognized by the Law of Nations who is to decide the legality or illegality of the capture, it delegates its authority to the person or persons it may judge fit, without any nation having the power to indicate the class or category to which they should belong. From this indisputable right of the Sovereign arises the diversity of measures adopted by each country with respect to the tribunal which has to take cognizance of the prizes made by its cruisers, and in Spain the cognizance of cases of prizes is the special province of the naval commanders, with power to appeal from their decision to the Council of State.His hon. Friend also asked whether the Spanish Minister General Calonge, in a note dated the 21st of November, 1866, and addressed to Sir John Crampton, did not stateThat the owners of prizes had full liberty by the Spanish law to defend their interests in all stages of the suit, and might also appeal against the sentence given in the first instance, and amplify in the second instance their defence for sustaining that appeal;and whether this declaration did not amount—as, in fact, maintained by Lord Stanley—to an authoritative statement on the part of the Spanish Government that a full appeal in prize cases was allowed. This quotation is correct, but, as will be seen by Parliamentary Papers, incomplete (Parl. Papers, 1867; Part I. p. 48). The owners had a full opportunity of defending themselves, but neglected to do so. As regards the question of what occurred in Funchal Roads, that concerned the Portuguese Government alone. His hon. Friend asked. Whether the conduct of the Captain of the Spanish frigate "Gerona," as admitted by himself in engaging another Spanish vessel in Funchal Roads to signal the movements of the "Tornado" to the "Gerona" hovering outside, was not in direct violation of a well-known rule of International Law touching the right of asylum? The fact itself as to the place of seizure was a matter of dispute, and the statements of the claimants could be accepted as 2127 disproving counter statements made by the captors. Nor did there appear to be any ground for supposing that the claimants themselves called in question the right of the captain to engage another Spanish vessel to signal the movements of the Tornado. What they apparently did call in question was the place of seizure, and this, as had been above stated, was a matter of dispute. Then it was asked, Whether it is not a fact that the "Tornado" was fired into and her capture effected in Portuguese waters; and whether this fact has been brought by Her Majesty's Government under the notice of the Governments of Portugal and Spain? The answer to that was this—The claim for exemption from the exercise of belligerent rights on the ground of the neutrality of the place of capture ought properly to be made by the neutral State, and not by the State to which the captured vessel was alleged to belong; and though it was competent to a neutral State to allege that the vessel said to be the property of her subject was not captured in a place where the right of the belligerent could be lawfully exercised, nevertheless the captor might reply that he had evidence to prove that the vessel was not the property of the subject of the neutral State, but of his enemy, and that if any reclamation was to be made on this ground it could only be made by the other neutral whose territorial rights had been impugned. The fact itself, if not urged by the neutral, was one to be urged by the claimants before the Prize Court. In answer to other questions he might say that the sumario, which was what was probably meant by the first trial, did take place before a Prize Court; but he was not able to state whether that Court was exclusively composed of naval officers sitting without the advice of legal assessors. One of their number, however, was Senor Galvez, the auditor. The second Court did pronounce a sentence of condemnation, one of their number being the licentiate José Gonsalez Tellez Warleta. As to whether the claimants were advised by their Spanish counsel to desist from presenting their defence to the second Court, he could not say but they seemed in these various proceedings to have been very ill advised. The claimants entered a protest, but allowed judgment to go by default. The state- 2128 ment in the other Questions was not according to the advice which the Government had received; and in matters of such a strictly legal character they were guided by the opinion of the Law Officers of the Crown. As to the Royal Order to which his hon. Friend referred, if he had any curiosity to see it, though it was not in the hands of Her Majesty's Government, he would apply to the Spanish Government to get a copy of it. There would be no difficulty in producing the other Papers. His hon. Friend had made a very serious charge against the Foreign Secretary and the head of the Government, and said that the Prime Minister would lose his popularity in consequence of this affair. But if the loss of popularity by his right hon. Friend was to be only in consequence of not bringing the power of this country to bear on the Spanish Government on account of the Tornado, it would be a long time until his hon. Friend would cross to that side of the House. The principle on which Lord Clarendon and all Secretaries of State acted was to maintain the rights of British citizens and ships; but the Foreign Minister of this country being satisfied that that vessel had been tried before a properly-constituted Prize Court in Spain and had been adjudged as good prize, how could he be expected to make a claim of an exceptional and extreme character on the Spanish Government? How could it be expected that the force of this country should be brought to bear upon the Spanish Government in defence of a vessel which had pursued the career that he had described from the Paper, on authority such as he had given? His hon. Friend referred to the £1,500 that had been obtained from the Spanish Government, and said they had extracted from an Italian Government £3,000 in a case in which they had no right. [Mr. BENTINCK explained, that he had said it was a case of doubtful right.] Now, in this instance there appeared to be a case of clear guilt. The Spanish Government had throughout denied any liability in the matter, and the Government of this country were satisfied that the Tornado, having been engaged in an illegal errand, was justly captured; but in consequence of the appeals of his noble Friend the Secretary of State for Foreign Affairs, and the personal influence he possessed with the Spanish Government, that Government was in- 2129 duced by the statesman whom his hon. Friend accused of writing degrading despatches, to offer the crew, as a matter of kindness and consideration, that sum of £1,500 for the losses they had sustained; and in that arrangement the British Government acquiesced.
§ MR. EASTWICKsaid, he had listened with much interest to the explanation of the Under Secretary of State for Foreign Affairs, but, he must confess that, in his opinion, the charges which he had hoped to see cleared away from that Department had not been satisfactorily removed. That explanation did not at all touch the point that, the noble Lord at the head of the Foreign Office having begun his protests in December, 1865, and those protests having been continued, partly by the noble Lord and partly by his successors, up to December, 1868, then in May, 1869, without any scintilla of additional information, as far as they knew, the case was suddenly dropped, and the rather contemptuous refusals of the Spanish Government to give a special tribunal, or enter into any further correspondence in the matter, were meekly accepted. The seizure of the Tornado was not an isolated case, but part of a system by which the Spanish Government for some years past had ignored the rights of British subjects. He would not say a word in defence of privateering, but of all nations, no Power in the world had less right to complain of that practice than Spain. It was said they all knew the Tornado was a suspected vessel, but the question was not as to suspicion, but as to proof. Was a person suspected of an offence not to be tried according to forms of law. At the instance of the Spanish Minister in London, the Tornado was, to use the words of the Customhouse authorities, "watched, searched, rummaged, and re-rummaged," without anything being discovered to justify her detention. After that severe scrutiny, this vessel, declared by the British authorities entitled to the protection of our flag, cleared from Leith, and sailed on the 10th of August, with an English captain and crew against whom there was nothing to prove any criminality. Yet those men, who had engaged themselves innocently, were cruelly treated, barbarously imprisoned, wounded, and stripped of their property by the Spanish authorities. On the 14th of August the Spanish Government issued instructions 2130 to the commander of the Spanish 50-gun frigate Gerona to pursue the Tornado and take her wherever she was found, without asking for her papers, or examining to see if she had contraband of war, or any other justification for seizing her. She was seized accordingly, in neutral waters, near Madeira. The instant she left Funchal she was pursued by the Gerona, and could not have reached the place which the Spanish officers said she had done when seized. There was not a tittle of proof that she had got out of neutral waters, while, on the other hand, there were the sworn depositions to the contrary of the English captain and crew; and he owned he was inclined to believe his own countrymen, whose evidence was confirmed by the disinterested testimony of Portuguese sailors. The statements of the Spanish witnesses had been repeatedly shown to be untrustworthy. There was distinct proof that the Spanish Minister for Foreign Affairs had deliberately stated to Sir John Crampton that those English sailors were comfortably lodged on shore, when they were being cruelly imprisoned on board ship. On the 23rd of May, 1867, months after all those trials on which the Under Secretary of State had laid such stress, the Supreme Court of War and Marine pronounced that all that was done had been done in error. He would just refer to similar cases that had occurred. The first he would mention was that of the Mermaid, a British vessel sunk by a shot from the fort of Ceuta in October, 1864. In this case, in spite of the depositions on oath of the English captain and crew, who had a narrow escape of being drowned, the Spanish artillerymen had the effrontery to pretend that it could not be their fire that sank the vessel, as they were instructed not to hit her! The next case was that of the Queen Victoria, which was seized by a Spanish revenue cutter in January, 1866, and regarding which Lord Stanley declared in 1867, that the capture was lawless and wholly unjustifiable. The noble Lord's statement might stand as a description generally applicable to the proceedings of the Spaniards in these matters. It was as follows:—
The original capture was a lawless and wholly unjustifiable act; justice, though frequently demanded has been denied; the sale of the cargo and of the vessel was illegal; and all the proceedings taken against the vessel were not only 2131 contrary to justice and therefore void, but they must have been taken with a full conviction of their illegality, and were adopted, as Her Majesty's Government are constrained to believe, for the purpose, or in aid of the purpose, of covering or concealing the original lawless act of the captain and crew of the Spanish guarda-costa.He could mention many other cases of flagrant injustice on the part of the Spanish Courts, but he would simply remind the House of that of Captain Carvell, who went to Peru to obtain the property bequeathed to his wife by her father. He was seized and kept in prison for many months, notwithstanding the representations of Mr. Jerningham, our Chargé d'Affaires. Our Consul afterwards declined to interfere, on the ground that he was not sure of being supported by the Government; and Captain Carvell was indebted to the French Consul for having interposed to protect him, and having put him on board a man-of-war. Was that creditable to the British Government? He thought that all those cases were well worthy the consideration of the House.
§ MR. ALDERMAN LUSKsaid, he had taken much interest in this matter, because several of the crew were Scotchmen. He believed the ship was guilty; but, as she had been twice visited by the Custom House officers, who pronounced everything to be straightforward, he thought the men who had been kept in prison for five or six months had much to complain of.
THE ATTORNEY GENERALsaid, he had never heard a more complete answer than that given by his hon. Friend the Under Secretary of State for Foreign Affairs to the Member for Whitehaven (Mr. Bentinck). The general principle applicable to cases of this kind was, that we had a right to interfere and demand redress from a Foreign Government, if we were really satisfied that some British subject had suffered a wrong for which that Government was responsible, and had failed to obtain redress. But we could not prescribe to foreign countries what exactly ought to be the procedure of their tribunals, and how those tribunals ought to be constituted. Neither could we measure the precise time within which their proceedings should be taken and concluded. If we were satisfied on the whole, that there had been a failure of justice; that the party alleging the grievance had not been heard, and that what ought 2132 to be the essential rules of justice in all countries had not been observed, then, and not till then, were we called upon to demand redress. That was the case in the Don Pacifico affair. Now, it appeared from a Paper referred to by the Under Secretary of State that, beyond doubt, the Tornado was a privateer, or was engaged in a contraband adventure. The question we had to consider was whether there was before the Spanish tribunals evidence on which they could come to the conclusion that this vessel was a fair prize. He was bound to say that he thought there was such evidence. Consequently, it appeared to him that the ground failed because we had not merits. As to the constitution and procedure of the tribunals a history of that had been given by his hon. Friend the Under Secretary. Although he was of opinion that there had been ground for complaint on the score of delay and also of the ill-treatment of the crew, still it was plain that there was no ground of complaint with regard either to the constitution of the tribunal or its proceedings such as would justify the English Government in disputing the right of Spain to condemn the vessel. The case, after a preliminary examination, came before a Court where the parties had a right to be heard, or where they ought to have been heard; but they declined upon the advice of their counsel, which was doubtless given because counsel knew there was no answer on the merits of the case. Lord Stanley had stated in August, 1868—
They had an opportunity of being heard, but did not avail themselves of it, because, as they represent with a perfect consciousness of their own innocence, they knew the vessel would be condemned.As to the rules of procedure with respect to international remonstrances, before a complaint could be made to a Government about the failure of its tribunals, it must be shown that the subjects of the complaining Government had resorted to those tribunals, and had failed on account of the manifest disregard of some principle of justice. No such case had been made out in this instance, because, after being warned that, if they did not appear, judgment would be given against them, the parties deliberately declined to appear, preferring, he took it, to have a grievance rather than to state their case. There was no ground 2133 of complaint against the Foreign Office in the time either of Lord Stanley or of Lord Clarendon; on the contrary, that office had done its duty in having allowed the parties to take their own course, and in having requested the Spanish Government to expedite their proceedings. The Foreign Office, it was true, never consented to become the mere advocates of these parties, and they did not profess to advise them; but they did all they could to procure a fair hearing and a decision with the utmost possible speed. The hon. Member had alluded to the "good old times" when Lord Palmerston acted on the maxim Civis Romanus sum; had said that the present Prime Minister would lose popularity, because he did not sufficiently protect Englishmen abroad and the foreign commerce of this country; but he was sure that those who represented the commercial classes would repudiate contraband traders who were reckless as to plunging their country into difficulties. So far from being the friends, they were the bitterest enemies of the mercantile classes; they deserved no sympathy from Parliament, but, on the contrary, they deserved the reprobation of all fair traders and honest men.