HL Deb 02 February 1832 vol 9 cc1152-83
Lord Wynford

said, in addressing their Lordships, pursuant to his Motion, he was desirous of relieving himself at the outset from the imputation of possessing an intention to make the situation of Holland more uneasy than he feared it already was. If he apprehended that his Motion would have the effect of detaching Russia from the interests of that country, he should be almost inclined to forego the task he had imposed upon himself—of bringing under the consideration of their Lordships the convention relating to the Russian-Dutch Loan, and likewise the manner in which that had lately been acted upon. He was fully persuaded that the interests of Holland were inseparably bound up in those of England. It had long been taught in this country, as one of the principles of English policy, that it was necessary, to insure the permanence of the condition in which Europe was at present placed, that the independence of Holland should be maintained. He would not go so far as to assert that it was necessary for the independence of England that Holland should be supported in the maintenance of her independence, because England was sufficiently able to assert her own freedom; but he must express his entire concordance with the opinion which had been expressed on a former occasion, that it was a most important consideration to England that Holland should be supported. For himself, he never thought, of that country but with feelings of attachment and affection. To her England mainly owed the establishment of the system under which her liberties had so long flourished. From the throne of Holland had the glorious deliverer of Protestantism William the 3rd, mounted the throne of England. That Monarch had stepped from her shores to rid Englishmen from the horrors of despotism and Popery. He could not forget either that, at the accession of the illustrious family who now filled the throne of these realms, Holland had evinced the greatest promptitude to support their claims, and he could never for a moment contemplate the possibility that a King of Great Britain, of the House of Brunswick, would ever assent to the commission of an act by which Holland would be injured. He could not also but recall to their Lordships' memory the fact, that at the Rebellion in 1745, Holland had sent troops to this country to assist in putting down the Pretender; and although, in reply to these proofs of her devotion to this country, it might be urged that she at length took part in the continental struggle against Great Britain, yet it ought, at the same time, to be recollected that she was then at the mercy of France, and was compelled to act as she did by the overpowering influence of that country. Previous to that event, however, he allowed she had been misled by the arguments of the American Envoy, who was deputed to obtain her alliance against England, in the contest with the colonies, but he verily believed she had been induced solely by mis-statements to enter into the union which was formed against this country. In despite, however, of these objections, he did not for one moment conceive that it would be denied, the interest of Great Britain demanded that Holland should be strengthened and defended; and the principle of gratitude also strongly supported her claims. In upholding her pretensions, however, he must beg to have it distinctly understood, that he was by no means anxious to have it believed that he wished this country to be burthened with payments on her behalf, at a period of so much financial difficulty to herself; and he was much less desirous to see these payments continued, when it was quite obvious that Holland derived no benefit whatever from them, the treaty under which they were stipulated having become null. But what he objected to was, that at a period when the finances of this country were in such a condition as to render it a matter of some doubt how long she would be able to continue to liquidate her own debts, she continued to pay the debts of others for which, in his conscientious opinion, he though her no longer liable. Before, however, he called their Lordships' attention to the grounds on which he had adopted those sentiments which he should that night feel it to be his duty respectfully to submit to their Lordships, he would briefly advert to the circumstances under which the treaty was entered into. In the year 1814, Holland, as well as the rest of Europe was just delivered from the power of France. On that account, the first of the treaties to which he should find it necessary to direct attention was entered into, and by that it was stipulated that the colonies possessed by the Dutch at the commencement of the late war, and captured by the English in the course of it, should be returned to Holland, with the exception of the Cape of Good Hope, Essequibo, Demerara, and Berbice. In a subsequent treaty, that principle was carried further, and the provisions for that purpose were afterwards fulfilled. At the time when this treaty was in agitation, observations were made as to the right which was possessed by England to the colonies which were given up by the treaty. It was said, that being taken during a period of war with Holland, they became the property of England by right of conquest, and being at the disposal of England and her allies, Holland was consequently not possessed of any right to make stipulations for their restoration. But to these, objections Lord Castlereagh gave a triumphant reply at the time, for Holland being an unwilling enemy, it was totally unjust to retain colonies which had been captured from an enemy so circumstanced. It would have been better to have restored to her the whole of her colonies than to have retained them under such circumstances, when it was obvious that it was impossible for this country to treat Holland as an enemy with any shadow of justice. The moment her independence was restored to her, justice demanded that her colonies should also be restored to her, unless she consented to receive a compensation in lieu of them, which by the Treaty of 1814 she consented to do; and in consequence a portion of them was regularly transferred to Great Britain. By that treaty, however, his Majesty, in consideration of retaining these colonies, agreed to take upon himself the charge of erecting and maintaining certain fortresses for the security of the Netherlands; England also took upon herself part of the debt of Holland. The consideration given by England to Holland for her colonies, was the payment of 3,000,000l. sterling, and the guarantee that Belgium should become an integral part of Holland. The king of Prussia also consented, on her giving up some provinces in Germany to him, that Luxemburg should become an integral portion of her territory. In conformity with such stipulations, nothing could be more indisputable than that whenever Holland should lose Belgium and Luxemburg, then her German provinces should be restored to her, and England should give her back the colonies taken under the treaty—at least, whenever Belgium should be lost to the Dutch through any act or omission to which England and Russia might be parties. He did not mean to say, that, under all circumstances, England was bound to secure to Holland the sovereignty of Belgium; but of this there could not be the slightest doubt, that England and Russia were at least bound not to do any act, or fall into any omission, tending to deprive Holland of that for which she had paid such an enormous price. He would not trouble their Lordships with any observations on the Treaty of 1815; but he should simply state the circumstances which led to the engagement on the part of Great Britain. By an existing treaty, to which Russia was a party, the contingent of troops which Russia bound herself to furnish towards the prosecution of the war was 150,000 men. Russia, however, furnished 250,000, and as a compensation for that additional number, she demanded that some portion of the, debt which she had incurred during the war in maintaining them should be taken off her hands. One particular reason why Russia was to have this debt taken off her hands was, that she made great exertions in favour of Holland, and particularly to secure Belgium to her. If this debt was created under the circumstances stated by Ministers, the case would be still stronger, for a stop ought to be put to its payment the very moment the conditions, upon which its payment by England was guaranteed, were violated; and if he could produce proofs that the treaty was no longer binding, no one, who was not able to show that greater advantages would result to England by adhering to it than by rejecting it, could for one moment contend that this country ought to continue to pay the money therein stipulated. By the treaty of the 19th of May, 1815, the King of Great Britain stipulated, not to pay, for that was not in his power, but to recommend to Parliament to make provision so as to enable him to take upon himself an equal amount of the Russian debt with that which was to be borne by Holland, namely 25,000,000 of florins, Dutch currency, the interest of which was to become chargeable on the Government of this country. An opinion had been given elsewhere, that Judges and lawyers had nothing to do with the construction of treaties; that the King could make a treaty, and that to the King belonged the prerogative of declaring what should be its interpretation. He would not then stop to inquire how true it might be, that, the King possessed the prerogative of interpreting those treaties which the Crown had full power to carry into effect; but he must take leave to say, that those treaties which depended upon an Act of Parliament must of necessity be interpreted according to those principles which were usually applied to Acts of Parliament, and by those persons to whom Acts of Parliament were usually referred for judgment. To give the Crown the power indirectly of deciding upon the meaning of an Act of the Legislature, would be imparting a dispensing power with a vengeance. It was the A, B,C, of our Constitutional Law, that that, which the Parliament could do or undo, the King could not alter; hence he would affirm, that the construction and application of the Treaty of his Majesty's Government was not to be determined as the King should be advised, but according to the principles which were usually applied to the construction of Acts of Parliament; and applying those principles to the present treaty, he should say, that scarcely could a clearer case be presented to the mind of any lawyer. Nothing, he thought, could be more evident from the treaty, than that the payment ought to cease with the sovereignty and possession of Belgium: the treaty expressly went to say the sovreignty—the French word was domination. The domination—the active authority—the sovereignty de facto—was what was meant, and, indeed, clearly conveyed by the treaty. It was well known that the sovereignty had really passed away more than a year ago. It was not enough that there might be a sovereignty de jure; for, as long as the monarch did not himself relinquish that sovereignty, it might be said to exist de jure; but it being de facto at an end more than twelve months ago, the question was completely settled. Indeed, for his purposes, it was quite enough that sovereignty should have ended last December. There were two great authorities to which he might refer their Lordships in support of this opinion, and which it would be merely necessary for him to name to their Lordships, in order to obtain for both the highest respect. One, was a writer upon our own laws, the other upon the General Law of Nations—he alluded to Grotius and Mr. Justice Blackstone. The view taken by both these of questions of that nature was, that those who were called to put a construction on treaties, were bound to look at the condition of the contracting parties, and thence, as well as from their language, to collect their intentions. It would be contended, perhaps, but in vain, that, the sovereignty de jure affected the question. Spain claimed the dominion of Holland for eighty-three years after every country in Europe had acknowledged the independence of the latter country; and amongst the number foremost to so acknowledge that independence was our own Queen Elizabeth. The independence of Switzerland was not acknowledged by Austria for an immense length of time; then there was the case with the United States; and, as a more modern instance, there was that of the newly-formed states of South America, the independence of which Spain had not yet acknowledged. If Holland—and no doubt the Dutch monarch submitted the question to eminent Dutch jurists—if Holland did not feel bound to pay her portion of the debt, why should England? She felt, and justly, that to have taken away Belgium was to take from Holland the means of paying her proportion of the debt. If we could not pay under the terms of the treaty—and we could not, without the authority of a law created for the purpose—all payments since the separation of Belgium must have become illegal. What was it that Holland wanted? It was a barrier to protect her frontiers. The nations of Europe, particularly England, had supported a barrier for her from the Treaty of Westphalia down to the Treaty of Utrecht, and from the Treaty of Utrecht downwards; and it was so considered by the House of Austria. But at the close of the late war, there was no one to take this duty upon him, and how then was this barrier to be supported. How was England to go on without a security in that quarter? How was the Dutch navy (which we must look to in most of our wars) to be protected, when the great Powers did not take the defence of Holland upon them? The only way in which it could be done, was that which was done by the Treaty of Paris, which was entered into that she might be enabled to protect her own country. It was then calculated, that so long as Holland had the resources derivable from the union of Belgium, she would be able to pay the money advanced; but the moment she lost Belgium, she lost the means of paying this money; and the moment you sanctioned the separation of Belgium, you removed her liability under this treaty. If England approved of that treaty, and, for the purpose of increasing that security, advanced three millions of money, to be expended on the formation of this barrier, under the direction of the greatest General existing, was it to be supposed that they were not to have an interest in the breach of that treaty which was intended to create a barrier to keep France from that kingdom? Was it to be supposed that England was not to have these advantages? Looking to the law and authority of those eminent men, to whom he had referred, if these were the facts, the meaning of that treaty must be, that the moment that Belgium should become separated from the actual possession and control of Holland, that moment she was relieved from her obligations under this treaty. The only question was, whether the word "domination" meant sovereignty de jure, or sovereignty de facto, for it would be absurd to suppose that any country would bind it-self to such conditions, when its sovereignty de jure was not capable of giving these advantages. By the law of England, it was distinctly stated, that it was contrary to reason, that a man could be guilty of treason against his lawful sovereign unless that sovereign was a sovereign de facto. He would now remind their Lordships of an instance which must be familiar to them—of the recognition, by the British Parliament, of the principle that a sovereign de jure was not entitled to the same allegiance as the sovereign de facto. At a time when the King of England claimed to be de jure sovereign of North America, and was carrying on a war to repossess himself of the sovereignty de facto, an Envoy of the actual Government of the revolted colonies to his Majesty was committed to the Tower upon a charge of high treason. He petitioned the House of Commons, describing himself as the hon. Thomas Laurens, Ambassador from the United States of America, and claiming to be treated as a prisoner of war, and not as a rebel; inasmuch as the Government of which he was the representative, had been virtually recognised by his Majesty the King of England, who had entered into treaties with it for the exchange of prisoners; and he insisted, therefore, that what had been before considered a rebellion, was rendered by those treaties a civil war, which was to be conducted on the same principles as an inter-national war. When that petition was presented, the House of Commons, on the Motion of Mr. Burke, passed a resolution, declaring Mr. Laurens was not, at the time of his committing the acts charged as rebellious, a subject de facto of his Majesty the King of England; and it was accordingly ordered that he should be discharged from the Tower. It frequently happened that the King de facto, even though he was an usurper, derived all the advantage of treaties entered into by other states with the king de jure, whom he had displaced. Thus, when the Earl of Warwick took the unfortunate Henry from the Tower, and placed him for a time upon the throne, the elector of Burgundy felt himself bound to fulfil towards Henry the treaties into which he had entered with Edward 4th. He mentioned this only as an instance that sovereigns do not inquire into the strict rights of other sovereigns with whom they have to treat, but look only to their being de facto in possession and enjoyment of the sovereignty. His views upon this question were confirmed by the opinions of two eminent writers upon the law of nations—Grotius and Comneus. The former expressly stated, that when a state became, by civil war or otherwise, divided into distinct portions not acknowledging the one sovereign, then each portion was to be regarded by all foreigners, in case of negotiation or treaty, as a separate and independent state. This opinion bore directly upon the subject which he was submitting to the consideration of their Lordships. He had heard it said, that in this case there was no question of law. But he thought there could be no doubt at all on that subject. If there was no question of law, his Majesty's Ministers would never have sent the case to the Attorney and Solicitor General for their opinions. Ministers were not usually in the habit of consulting those learned persons except upon questions of law; and he wanted nothing more to shew that they considered this case to involve a question of law, than the fact that they did consult those gentlemen. If his Majesty's Ministers defended themselves in what they had done, on the ground that they were borne out by the opinion of the law officers of the Crown, which certainly put them in a different condition as to responsibility, from that in which they would have been, had they acted without taking that opinion, how were their Lordships to ascertain whether those officers were right or not? The House did not know what the opinions of the Attorney and Solicitor General were, because they were not on the Table; and he was informed that it was not customary to move for such opinions. But if his Majesty's Ministers put the case upon the opinion of the law officers, then it became necessary for that House, as the only course open to it, to see whether the law officers of the Crown were right in the decision they had given. And, for that purpose whose opinion could the House seek? Whom could they ask to decide whether the law officers were correct in the opinion they had given? To whom could their Lordships appeal? Could they appeal for assistance on that point to any other but to the twelve judges? He had heard that those law officers had founded their opinion respecting the Treaty, upon an equitable consideration. He could hardly believe that the present treaty must be construed upon grounds altogether unconnected with equity. If equitable considerations entitled the Emperor of Russia to receive the money in question, their Lordships could not suffer those equitable considerations to weigh in their minds in deciding upon the effect of this treaty. Equitable considerations might form a ground for introducing another law, but not for putting any other construction upon the treaty, than the plain and obvious one which it ought to receive. If his Majesty's Ministers could get a construction put upon the treaty which enabled them to continue the payments, by reason of some equitable circumstances, those equitable circumstances had not been submitted to Parliament as they ought to have been. He said, that if the Emperor of Russia was entitled to receive this money, there must be some special circumstances in the case; those special circumstances ought to be brought forward, and it would then be for Parliament to decide—not what was the meaning of the present Act, or of the treaty to which it referred, but whether Parliament should sanction the passing of another Act to continue the payments which could not be made under the present law. It might be asked what had the Judges of the land to do with the construction of a treaty? He said, that the stipulations of a treaty were immediately connected with the municipal law of the country; and so far from its being unconnected with the law, he had it upon the authority of Lord Coke that it was the practice, and the law of the land, that every treaty with a foreign State should be recorded in the Court of Chancery, in order that the King's subjects might know what were their rights under such treaties. And who was to decide upon those rights but the twelve Judges? They were not to be decided upon by the King or his Ministers. Supposing that a subject broke a treaty, to the injury of the peace of the country, who was to pronounce upon the Act but the Judges? and how were they to pronounce but according to the law of the land? But what were the greater number of treaties made for? By far the greater majority were made for the regulation of commerce. These treaties, therefore, affected the subjects of the kingdom; and the Judges were constantly called upon to decide questions of civil right under them. There was a case, for instance, some years ago, before a noble friend of his, when he was Lord High Chancellor, relating to the treaty acknowledging the independence of America. His noble friend had no hesitation, on that occasion, in deciding upon the effects of a treaty. He went into the subject very minutely, and pronounced a most luminous judgment upon it, stating how far the treaty was binding upon the people of this country, and upon those of America. There was also an insurance case, some fifteen years ago, in the Courts, which turned entirely upon the treaty enabling the citizens of America to trade with this country. The question was, whether it was necessary, according to the treaty, that goods should be conveyed directly from America to this country, or whether a circuitous voyage made any difference in the contract between the parties. Upon that case a special verdict was given. It was not brought before that House, because the Courts of Common Pleas and King's Bench agreed upon the point. The treaty was set forth in the verdict, and the Judges commented upon that treaty just as they would upon an Act of Parliament. In fact, the Judges of the land were competent to form an opinion upon any thing which was necessary to enable them to pronounce judgment upon an Act of Parliament. It was obvious that they could not decide upon this Act of Parliament without looking to the treaty, which was embodied in the Act; and, by being so embodied, rendered part of the municipal law of the country. It had been said, that their Lordships would not send a question to the twelve Judges when there was no proceeding before them. How were they to know whether the opinion of the Attorney and Solicitor General was right? But he said that there were innumerable cases in which Parliament had referred questions to the Judges, and that the Sovereign himself was in the habit of consulting with those learned persons. He recollected that, when he was a Judge, the question was put to him, whether a knight made in Ireland, was a knight in England? the object of the question being to ascertain whether some half-dozen ladies had a right to the title which they assumed. He was aware that there were many cases in which that House, when asked, had refused to refer questions to the Judges; but was it because there was no case, that there was no reasonable ground or necessity for such a reference? A motion was at one time made, that it should be referred to the Judges, to say whether soldiers could be raised without the consent of the parties. The question was not sent, because any man exercising rational discretion, whether layman or lawyer, could answer it without difficulty. It might be objected, that there was no Act of Parliament now proposed upon which a question was to be referred to the Judges. He did not know whether an Act would be necessary; but, if the question were referred to the Judges, and if they should be of opinion that the last payment of interest was illegal, it would then be necessary for his Majesty's Ministers to apply to Parliament for an Act of Indemnity. In granting them such an indemnity, he would most readily concur; for if his Majesty's Ministers had acted upon the advice of the law officers of the Crown, it would be very hard that they should be made to suffer in their own purses for what they had done under advice, which they had reason to consider competent. He was not aware whether an Act of Parliament would be necessary to prevent the future payments; but if the Judges should be of opinion that the payments of the money were improper, he should feel it his duty to move for an Act of Parliament, or move an Address to the Crown, to prevent future payments, unless he were assured that no future payments would be made. He had said, that in innumerable cases questions had been referred to the twelve Judges. When Lord Hastings proposed to bring in a bill to amend the law relating to usury in India, it was referred to the twelve Judges to say, whether the law as it stood bound the subjects of this country while lending their money to native princes in India. The Judges said, that the law, as it stood, extended only to the protection of subjects of Great Britain from fraud by each other, and did not relate to their contracts with persons in other countries. On this account Lord Hastings gave up his bill. He felt bound, in the present state of the country, to take the course which he now did, with such precedents before him; and if he could save the country from the payment of this money, which it was not justly bound to pay, he should be a greater economist than all the economists at the other side of the House. Another question had been referred to the Judges, whether witnesses under a civil liability were protected against answering questions by which they might be committed. In reply to that question, the Judges said that witnesses so circumstanced were not protected—that they were bound to answer, although their answer might subject them to the payment of money. In consequence of this, it was not thought right by Parliament to pass a bill exonerating such persons from their liability. These were modern instances. There was another very extraordinary case, of rather earlier occurrence, which their Lordships would recollect. An individual of the name of Porteous was convicted of murder in Scotland, and was condemned, but subsequently reprieved, by the Crown. This man was afterwards murdered by a mob, who got by force into the gaol where he was confined, owing, in a great measure, to the neglect of the then Lord Provost of Edinburgh. A bill was brought into Parliament to remove the Lord Provost from his office, in consequence of the neglect by which he suffered the prison to be broken open, and the life of a person confined there to be sacrificed. He could very well understand why the opinions of the Scotch Judges should be taken on that case. The House thought it right to obtain the fullest information upon the state of the Scotch law. But they were not content with that. They not only asked the Judges of Scotland as to the Scotch law, but also questioned the English Judges what was the law of England on the subject of a man killed under such circumstances. Now, he said that the English law had no reference to the bill which was brought in. But the House of Lords did not stop to see whether what they asked bore upon the bill. They only considered whether the information which the Judges could give would be useful, and the Judges were accordingly ordered to attend. He trusted that he had now satisfied their Lordships that, according to the treaty, the sovereignty and actual possession of Belgium had passed away from the dominion of the king of the Netherlands. Whether the right de jure had gone or not, the sovereignty of the Belgic provinces had sufficiently passed away, and been se- parated from his dominions, to render the payments of the money no longer justifiable. He had forgotten to state a circumstance which it was proper to mention to their Lordships, although it might not have much weight with the Judges, if the case were sent to them. That circumstance was this, Lord Castlereagh distinctly stated that his object in procuring this treaty was to bind the most powerful nation in Europe to protect Holland and Belgium. A question was put to that Minister with respect to the treaty, and his answer was, that the moment the possession should be separated, the obligation of Holland, and, of course, of this country, would cease. Their Lordships knew that long ago the Belgic provinces had declared themselves independent of Holland—long ago the Dutch troops were driven out of Belgium—long ago the king of the Netherlands treated with the Belgian authorities for the exchange of prisoners—long ago the Belgians elected for themselves a new sovereign, with the approbation of this country, so much so, that when that king was, on a former occasion, called by a noble friend of his, through inadvertence, "Prince Leopold,'' the noble Earl opposite corrected him, and said, "King Leopold.'' Their Lordships knew that this country had sent a Minister to Belgium, and that from the king of Belgium a minister had come to this country, who, in his addresses to the Ministers of the five Powers, stated, that he was the Minister Plenipotentiary of the king of the Belgians. He could not doubt that he had made out a case, to the satisfaction of their Lordships' minds, that the de facto sovereignty of Belgium had passed away from the king of the Netherlands, and was vested in the present King of the Belgians, as he was called. He (Lord wynford) wished that he were styled the king of Belgium instead. He disliked these now-fashioned titles, and although he did not entertain any other feelings than those of respect for the present king of the French, he could not forget that he, who first called himself by that, to him, odious and detestable title, was the cause of much suffering to Europe, and of much disaster to this country. The noble Lord concluded by moving, "that the twelve Judges be authorised to lay before the House their opinions, whether the Commissioners of his Majesty's Treasury are empowered, by the Act of the 55th of Geo. 3rd cap. 115, or by any other law, to issue any money out of the Consolidated Fund of Great Britain, or any other public money, for the payment of any part of the principal or interest of the loan in the said Act referred to, at any time after the king of the Netherlands shall have ceased to exercise the sovereignty of the Belgic provinces, and shall have treated with the person exercising the power of government and sovereignty there, and after his Majesty shall have announced in his Speech from the Throne the conclusion of a treaty with the king of the Belgians, and other Powers, and shall have appointed a Minister to treat, with the king of the Belgians, and after the Ministers of Great Britain, France, Austria, Russia, and Prussia, shall have treated with a minister announcing himself as Plenipotentiary of the king of the Belgians.

The Lord Chancellor

said, that the reason for which he rose so early to address their Lordships was, that he might state what appeared to him an insurmountable objection to their adopting the proposition of his noble and learned friend; and he thought that it might be as well to reverse the order in which his noble friend had taken up the subject. Instead of following him through his arguments respecting the legality of the construction put by his Majesty's Ministers upon a treaty embodied in an Act of Parliament, and necessarily taken with the Act, he should at once go to that which was more immediately before the House, and with which the noble and learned Lord had concluded his address. From the reasons which his noble friend had given to justify their Lordships according to his Motion, it might, be contended, that the question to the Judges was intended to be substantially on the construction of the treaty. For this was manifest from the words of the Act, in which reference was especially made to the fifth article of the treaty upon which the question turned; and the whole treaty was quoted in the Act. The words were, ''That the money should be paid out of the Consolidated Fund as long as it should continue to be payable, according to the engagements of his Majesty under the treaty." Consequently, until their Lordships ascertained what were the engagements of his Majesty under the treaty, they could not ascertain whether the money was payable or not under the Act. But it was certain, that as soon as they should have ascertained that, then the whole question, as to the construction of the treaty, would be at an end. For the Act said, in shorter terms than he had used from its own text, that the money should be paid as long as the engagement was binding upon his Majesty. In other words, the Act empowered his Majesty's Ministers to issue the money as long as the Crown should be bound by the treaty. He believed then, that he might say, shortly and summarily, that the question to be referred to the Judges in substance, he might almost say in form, had reference mainly to the construction of those conventions. Now, he would have their Lordships pause one moment. He might bye and bye say one word as to the precedents brought forward by his noble and learned friend; but, admitting that there were precedents for laying a question before the Judges when there was no question before the House—when there was neither a trial pending, nor a legislative measure in progress—when the House was engaged in no proceeding, judicial or legislative, in which the advice of the Judges was required—admitting that there were precedents for such a course—he would have their Lordships to pause one moment to consider the principle upon which questions were usually referred to the Judges, and whether that principle applied to the present case, or rather was not contrary to that case, which was altogether excluded from the scope of the principle. The purpose of their Lordships making a reference to the Judges, was to obtain the best information from the most competent authority; and the House being more or less unlearned in such matters, resorted to those who were most learned in them, and who were professionally accomplished in that branch of law; who were long practised and well skilled, not only by the lore acquired by long study, but by that, without which abstract learning was as nothing, namely, the constant, the daily, and hourly habit of applying their learning to the cases before them. Those learned persons having these capacities to assist the imperfections of the House, their Lordships might expect to be usefully aided by their advice in all questions of daily practice in the law. But if the question to be proposed was one which the Judges to whom they were to propose it, although by law they might, and although in practice, though most rarely, yet sometimes, they did, deal with such questions; if it happened that that kind of question did only, at long intervals, sometimes come before some of those Judges, and if it so happened that these Judges were not the proper authorities to consult on such subjects, would not their Lordships pause before they consented to his noble and learned friend's Motion? It was, however, to those twelve Judges, as they were formerly called, fifteen as they now were, that the question was to be referred; and, so far as he knew, the House had no power of compelling the Judges of the civil law to attend, who decided upon the law of nations, and were preeminently skilled, from their constantly handling such subjects. These were not the Judges to whom the House had the power of referring the question; but they were to send it to the fifteen Judges, who, except very rarely, and at long intervals, never could, and never did, deal with such matters. It was one thing to construe a treaty, which was to be construed according to the public international law, or, as it used to be called, the law of nations—it was one thing to construe a given treaty, and another thing to construe an Act of Parliament, where the treaty did not come into operation at all—although he admitted that the Judges to whom their Lordships were called upon by his noble friend to refer the question were called upon from the necessity of the case, sometimes to put constructions upon such documents. When questions of international law arose, it had not been unusual for the Judges to call in two civilians—one at either side; not that the learned Judges themselves were not capable of grappling with such questions, but because public law was a branch of the laws with which the Judges were not familiar, because such questions properly belonged to a Court in which they did not practise. The question, in fact, belonged to another Court, in which the Judges neither practised nor sat, the Court of Appeal, which seldom attends to cases of this description. None of the Judges ever presided in that Court, or were called upon to attend it, though it decided on questions of public law, except the Chief Justice of the Common Pleas, who was a Privy Councillor, and who might have happened to preside one day at the Cock-pit, when a question of public law was under consideration, though that was not at all likely. It was highly improbable, then, that any of the Common-law Judges had ever sat in judgment on a question of public law; and it was quite impossible they could have done so, unless such a question had come before them incidentally, which it rarely did. This was one objection, then, to sending the question to the Judges, that it arose upon a branch of law with which the Judges were not familiar. The same objection would not apply with equal force if it could be seat to the Judge of the High Court of Admiralty; but no such thing had ever been done, and he was sure his noble friend would not propose or sanction a course so inconvenient in practice, and so entirely unprecedented. Even if the proposal of his noble friend—to send the question to the Judges—was supported by precedent, he had endeavoured to show their Lordships its inefficacy and absurdity in the present instance. But, supposing that it was not absurd, he was ready to contend that there were no precedents to sustain the proposition. His noble friend, in endeavouring to produce precedents, had clearly proved that there were no precedents. His noble friend alluded to the question put to the Judges at the suggestion of a noble Lord (the Marquis of Hastings) now no more, as to the rate of money in India; but it was a most important feature in that case, that there was a Bill before the House bearing directly on the subject-matter of the question submitted to the Judges. The Bill was introduced on the 17th of June, and the Order of the House for the attendance of the Judges was made on the 20th of June, three days after the Bill had been brought in. His noble and learned friend passed over this fact, as if it had been wholly immaterial; but no feature could be more important, for it proved that the question submitted to the Judges was incident to a legislative proceeding then depending before the House. In the other case alluded to—that of 1737—the same observation was applicable. There was then a private law before the House to disqualify the Lord Provost from holding any office of trust thereafter under the Crown; and though the proceedings then adopted occurred in the time of Lord Hardwicke, for whose memory he (the Lord Chancellor) entertained the highest respect; yet he thought the precedent was one which would be more honoured in the breach than in the observance, and which ought not now to be followed by their Lordships, even if the cases were parallel, which, he contended, they were not. The circumstances of that case were very generally known and remembered. The questions put to the Judges did not so much regard the conduct of the Magistracy of Edinburgh as the conduct of the Court of Justice, which had sentenced Captain Porteous to death, for ordering his soldiers to fire on the crowd at the execution of a malefactor. Without asserting that it had been violent and unseemly in the House to call upon the Judges to attend and answer for their conduct in trying Captain Porteous according to their oath; yet he would put it to their Lordships, whether questions growing out of such a precedent was one that it was desirable to follow. Leaving the question of precedents, however—having established, he thought, the total inapplicability of those quoted by his noble and learned friend—he wished to call their Lordships' attention to the evils and inconsistencies which must attend the adoption of the course proposed in this instance. One evil which would follow from submitting this question to the Judges was, that the same question might come before them hereafter in another shape. His noble friend had contended that the law was broken, and that money had been issued from the public Treasury, contrary to law. For this breach of the law some one must be responsible, and who could tell but that there might be an impeachment hereafter? When a question was submitted to the Judges, it was given as a dry naked question of law, and without hearing either party—for there was no party; and, without any assistance from the arguments of counsel, the Judges found their way in the best manner they could, and made their report. Out of the four corners of the paper containing the questions put by their Lordships the Judges could not travel, unless to look at their books; and, after having given their opinion on the dry naked question thus put to them, a case might come practically before them in some of the Courts of Law where parties being concerned they must hear counsel, and after hearing counsel, they might find it fitting (as many Judges had done before them) to come to a conclusion different from that which they had come to upon the abstract question referred to them by their Lordships. His noble and learned friend would say, that in such a case, if the Judges saw it was fitting, they ought and would undoubtedly come to a different conclusion. Perhaps they would, but he asked whether there would be no bias on the minds of the Judges to prevent them from coming to a different conclusion? Must they not remember that they had already considered and reported their opinion on this question; and would that recollection tend to a calm and unbiassed decision on the case before them? His noble and learned friend laughed at the idea of an impeachment as arising out of this question, though that was not an impossible case. The question, however, might come before the Judges in another shape. The officers might refuse to pay the money, and on the part of those who put the construction on the Act of Parliament now contended for, a Mandamus might be granted, or at least applied for. When the Judges came to decide on the question brought before them in that shape, would they not have their own hypothetical judgment staring them in the face? and would any man deny that the strongest minds must feel a bias arising, out of the solemn fact of having previously given a deliberate opinion in the same case? Having endeavoured to impress on their Lordships the inexpediency of the course suggested, of referring this question to the Judges, he begged now to be permitted to say a few words on the construction of the treaty on which this question had arisen. The question was, how far the treaty bound this country? To determine that question, they must look for a moment at what the treaty was, as well as at the true construction of the saving clause on which the doubt had arisen. The substance of the treaty was, that this country and Holland should pay to Russia, by way of annuity, 50,000,000 of florins—25,000,000 to be paid by this country, and 25,000,000 by Holland. This burthen Great Britain had not taken on herself voluntarily or gratuitously, but for a consideration actually granted, or condition actually performed, by Russia. He begged their Lordships' attention to this point, because he thought, if duly considered, it would lead to a more sound and statesman-like view of this question, and of our obligations to Russia, than his noble and learned friend, in the zeal of his argument, or rather his declamation, had adopted. His noble friend's speech was able and learned, but he must excuse him (Lord Brougham) if he said that, more particularly towards the conclusion, it was rather declamatory and eloquent, than argumentative. His noble friend had observed that, if he could save the country the payment of so large a sum of money, he should congratulate himself on being a better and abler economist than those who made much larger professions on that subject. If his noble and learned friend could effect so extensive a measure of economy, he certainly would have reason to be proud; and he should envy him, if he was satisfied that the economy could be effected without a breach of faith. In his anxiety to economize, however, he could never consent to pass over a treaty which bound us to pay a sum to another country, which, in respect to that payment, had given a consideration of great amount and value, and a consideration executed before the making of the treaty. The ground on which we engaged to pay this money to Russia was, for her assistance in delivering Belgium from the power of our then enemy, and the enemy of Europe—France; and, as respected this ground, Russia was put in the place of all the other allies—Prussia, Austria, and the rest. Another consideration on which Great Britain undertook to join Holland in the payment to Russia was, that this country should have the Dutch colonies ceded to it. He did not say, whether those considerations were or were not sufficient. It was no treaty of his—he was not even in the House of Commons when it was made; and he was not defending the policy of those who made it—but he stated, as a matter moving those who made the treaty, that they thought, independent of the colonial acquisitions, that this country derived great benefit, in common with the other powers of Europe, from rescuing the Belgian provinces from the dominion of France. According to his noble and learned friend, Lord Castlereagh, and, he believed, Lord Liverpool also, had distinctly stated, that the great consideration in this treaty was, that it bound Russia to protect the integrity of Belgium. From all these circumstances, there were two conclusions which they must needs draw—first, that Russia had performed her part of the contract; and, secondly, that France was the power against whom the whole arrangement had been directed—France being the power from which the Belgian provinces had been rescued, and the power which they were to be prevented from returning to. Russia stood in the shoes of the other Al- lied Powers, and took whatever they were entitled to for delivering Belgium from the power of France, and by this treaty the return to which she was entitled was distinctly specified. Without having recourse to learned Judges, who knew little or nothing of public law—or without having recourse to those more learned Judges, who were in the habit of dealing with the principles of public law—he thought any unlearned person might come safely to this conclusion—that Russia, the party who had performed her share of the contract, was entitled to as large and liberal a construction as the words of the obligation would warrant them in putting on it. This was not only consistent with the principles of natural justice, but it was in accordance with the strict principle of law. Vattel, in his "Chapter on Treaties," laid it down, that all conditions or stipulations should be taken strictly against the party which promised or bound himself. The parties who bound themselves in this treaty were Holland and England; and, therefore, the promise or obligation should be taken most strongly against England, and most favourably to Russia. He was now putting the case as a Russian Diplomatist might be supposed to put it, when arguing the question on behalf of his master and of his country; and he contended that was the proper way to argue it. He now came to what he called the saving clause, which was an exception introduced in the treaty, not for the benefit of Russia, but for the benefit of the obligors. But for this qualifying obligation or proviso, no question at all would arise, and we should be bound to go on paying, until the performance of the obligation, by the payment of the 25,000,000 florins was completed. By the saving clause, however, it was "understood and agreed, that the payment to Russia should cease and determine, if the possession and sovereignty of the Belgian provinces should be severed and pass away from the king of the Netherlands." This was the exception on which the question arose, and in deciding it he concurred in the application of the principle which his noble and learned friend had quoted, upon the venerable authority of Grotius—that, in deciding on the construction of a treaty, they should look at "the condition of the parties" at the period when the treaty was executed. In deciding on this question they should also adopt the principle laid down by Vattel, who observed, "that as it was impossible, in framing treaties, to provide for all cases that might arise in any unforeseen conjuncture; the true principle was, to look to the views of the parties at the making of the treaties." A conjuncture like that which arose in the case of Belgium, where there was a severance without a transfer—a taking of those provinces from the king of Holland, without their going to any other Power—was precisely such an "unforeseen conjuncture" as Vattel had contemplated—for which the words of the treaty did not provide, and to provide for which, to apply the words of Vattel, "they ought to look to the views of the parties" at the time of making the treaty. He had no objection to look to the "condition" of the parties according to the principle quoted from Grotius, but he thought the principle was better expressed by Vattel, when he said they should look to the "views" of the parties. Without going out of the four corners of the treaty, he thought he could satisfy their Lordships as to the views of the contracting parties. He might justify himself by a reference to authority, if he found it necessary to go through the progress of the negotiation on which the treaty was founded, to explain anything doubtful in it; but the grounds on which he should put it were so strong as not to require any such aid. The state of Europe, at the period when this treaty was entered into was notorious; and the "condition" of the parties or their "views," were not involved in any doubt. By the severance of the Belgian provinces, and their passing away from the king of the Netherlands, it was clearly and exclusively meant, that they should be severed from Holland and pass away to France. That was the single mode of separation thought of at the time or provided against. The erection of a new State was not contemplated by the treaty, nor was it a case ever contemplated by the public law. When such a case occurred, the public law adopted the new State, and when it had established its independence, it also gave it the rights of an old State. Severance and transfer were contemplated; but the breaking of a State in twain, and the creation of a new power was an event, no more contemplated by the public law than Revolution was by the municipal law. The case which had occurred, therefore, was not provided for by the treaty; it fell out within the rules of public law, and the only fair mode of construing the treaty, as it applied to the un- foreseen case, was by taking into consideration its spirit rather than its words. But suppose he should follow his noble and learned friend (Lord Wynford), and take the literal and technical construction of the treaty, how would the question stand? The words of the saving clause were, "should the possession and sovereignty of the Belgian provinces pass away or be severed from the king of the Netherlands." Now, he begged to put a suppositions case. Suppose this country was guaranteed the possession and Sovereignty of Canada, after that colony had been conquered from France; would not the guarantee have been taken only to extend to preventing France or a foreign power from recovering the possession of the colony? and could any one contend, that under the guarantee, such an unforeseen event was contemplated as Canada throwing off her allegiance, and becoming an independent power? Looking to the literal meaning of the words of this treaty, what were they? The words were "possession and sovereignty." If the word had been "possession," alone, then there might be some ground for saying, that there should be a cessation of the payment, as the possession was lost; but "sovereignty" was added to "possession" and that gave a different complexion to the phrase. Sovereignty was only to be legally severed by recognition, or some formal act; and it was not clear that the sovereignty, in the legal sense of the word, had yet passed away from the king of Holland. His noble and learned friend had referred to cases in which the distinction was drawn between sovereignty de jure, and sovereignty de facto. Without dwelling on those, he would refer to two or three recent, decisions, bearing on this question. A case was lately decided in the highest Court of the Law of nations known in this country—the Privy Council—bearing on this question. Though St. Domingo had been severed from France for sixteen long years, and she had lost not only the possession, but, de facto, had exercised no sovereignty, yet it had been laid down by the Lords of the Privy Council, that St. Domingo was still the colony of France, in contemplation of the public law. It might be thought the course of argument he was now taking savoured too much of what unlearned persons, in disrespect for legal distinctions, called quibbling. If the line of argument he was pursuing were open to such an ob- servation, it should not be attributed to him. He was compelled to follow his noble and learned friend. He was for taking the large, sensible, rational view of the question. He called upon their Lordships to look to what Grotius called "the condition" of the parties, and to what Vattel called "the views" of the parties. This was the view of the question which every man of common-sense, be he lawyer or layman, could understand—but departing from this more enlarged and liberal view of the case, and looking to the strict rules of law, as laid down in the Courts of Law, for the construction of the treaty, those rules, he submitted, justified the course adopted by his Majesty's Government. A most learned and venerable Judge—whose absence from the House he regretted, as that noble Lord, (he meant Lord Stowell) would, perhaps, be better able to enlighten the House on a question of this nature than any other person—had recognized the principle of public law, which had been recognized in the Privy Council, in a peculiarly stringent case—a case of piracy. The case he alluded to was that of a Spanish vessel taken by a Colombian privateer, and she was claimed by the Spanish Ambassador. The property was Spanish; the vessel that captured her was a Colombian cruiser, and she was held by that noble and learned Lord to have been guilty of an act of piracy. And why was it so held? Because Colombia had never been separated from Spain, it was considered to form part of Spain, because our Government had not recognized the independence of Colombia, it was considered part of Spain in our Courts, and the vessel was ordered to be restored because the Colombian cruiser had been guilty of piracy. His noble and learned friend must, he thought, grant that nothing had or could be stated to substantiate that a new sovereignty, either de facto, or de jure, was established in Belgium; and the only fact to which his noble and learned friend had adverted to prove this independence of Belgium was the interchange of Ambassadors and the mention of the king of Belgium in the King's Speech. It would be difficult to find any authority, nor had any been referred to by his noble and learned friend, to show that the recognition was valid; and that, if valid, it was binding on other parties than those who made the recognition. He was not aware that the inter- change of Ambassadors established the independence of a country previously under another sovereign and belonging to another country. The interchange of Ambassadors might be to negociate concerning this very independence. But he would suppose the Ambassador sent to the king of Belgium to make the recognition—that the recognition was, as far as regards this country, good; that was surely very far from saying, that that recognition was binding on other countries. It was good quoad this country, and against herself in relation to Belgium: we were bound by our own act; of us it might be said, that we could not use our own act to estop ourselves; but our acknowledgment of the independence of Belgium could not be binding on Russia, or be a bar to any claims she might have on us; our own act bound ourselves, but it did not include Russia, and it terminated with ourselves. Suppose, even that the treaty for the recognition had been completed before the King's Speech was made, he was prepared with the authority of Lord Stowell to show, that till the treaty was ratified it was not binding, and had no legal authority whatever. It had been decided by Lord Stowell, then Sir William Scott—and it was, rather than a new decision or a doubtful principle, the mere recognition of a principle which had never been disputed—it had been decided by Lord Stowell, that a treaty was not valid till it was ratified. The case was that of a Swedish vessel captured after the signature of a Definitive Treaty of Peace, and captured even after the ratification of the Treaty by one of the parties. England had ratified it, but Sweden had not; and because Sweden had not ratified it, that learned Judge held that the act was not complete, that to make it complete the ratification must be reciprocal, and that, till the ratification was reciprocal, it was no treaty at all. Till the treaty was fully settled on both sides, it had no legal effect. If England only had ratified the treaty, and had not ratified till after the payments became due, that could not absolve her from the payment if Russia had not ratified the treaty till this day. It was clear that the independence of Belgium had not been acknowledged by Russia, and had not been caused by her act; and if we had acknowledged it, that it did not relieve us from our obligations to Russia. They existed in all their pristine force. It was said to be a casus omissus, and it was a casusomissus in one sense; but the omission was only an exception. The independence of Belgium was a case not provided for in the exception, and the terms and obligations of the treaty must be acted on as if that exception did not exist. In fact the exception did not embrace the case which had occurred. If there were any doubt as to the force of the obligation, it would be their Lordships duty to free it from doubt; but there was no doubt; and, therefore, it was merely a case of exception. The noble and learned Lord then adverted to the doctrine, that the Crown alone had the power to conclude treaties, and only came to Parliament to confirm them; and contended, that, if, as his learned and noble friend contended, the treaty was at an end, the Crown must renew it, or make another; and it was the most monstrous, unconstitutional doctrine he had ever heard, to say, that the Crown must come to Parliament to ask its consent to make that new treaty. If the treaty were in force, the obligation on England was perfect; if it were not in force, on what ground did his noble and learned friend blame his Majesty's Ministers for not going to Parliament to tell it that a new treaty must be made? His noble and learned friend had said, that the Government had not had recourse to the best advice, and he seemed to suppose that the Government had not had recourse to any person but the Attorney and Solicitor Generals. The Government had consulted these officers, but it had also consulted the King's Advocate. After the most mature consideration, the King's Advocate gave that opinion on which his Majesty's Government had acted: and in that opinion, humble as he was, and unworthy to give an opinion, he most cordially and heartily concurred. His opinion was precisely the same as that of the Law Officers and the King's Advocate; and acting on and stating that opinion, he had been ready, in his responsible capacity as a Minister of the Crown, to give the Crown that advice which he had given. He did not wish to pry too curiously into the thoughts of noble Lords, but he should like to know, and to conjecture what would have been said had the Government acted otherwise? If furnished with the opinion of the law officers of the Crown, such as he had described—if, their own judgment differing from that of the law officers, they had thrown that opinion behind the fire, and had refused the payments, would there ever have been an end, he would ask, to the imputations of gross and scandalous breach of faith—would there ever have been an end to the accusations against Ministers? What would have been said of the Ministers' jealousy and dread of that great power? and how often would their Lordships have been told, that if it were France, the money would have been paid? The Russian services in the common cause, it would have been said, are all forgotten, and only the common enemy is thought of. All that, and more than that, would have been said, had Ministers thrown the opinion of the law officers away—had given up their own judgment, and had refused to pay the money. Would they not have heard, too, of low petty jealousy, of party quibbling, of base envy, and of carping, under the influence of party feelings, against the treaty they had not concluded? It would have been said—"It is no treaty of yours; if it was your treaty, you would have carried it into execution in the letter and the spirit—you would never have carped or quibbled at it; and particularly you would not have confined yourselves to the four corners of the treaty; you would have given a liberal construction to it—you would have found means to justify the payment, and the payment would have been made. But now (they would have said), as the treaty is not yours—as it is the work of wiser and better men—as you had no share in making it, you are insensible to its value, and put on it no fair, manly, and liberal construction." Certainly, the Ministers were no parties to that treaty, they had no share in approving its provisions; he had himself warmly opposed it; but if the country was bound by the treaty, if the obligation continued, God forbid that his opinion of the impropriety of contracting that obligation should have any influence over his judgment as to the fact whether the obligation existed or not, and as to the spirit in which the obligation ought to be executed. He had entered very fully into the question, and considering that it might be right and fit that this Convention should be hereafter renewed, these observations might, he hoped, tend to smooth the difficulties of those who would have that duty to perform, and tend to conciliate those who, like his noble friend, thought that the Government might not need such a labour, and said that it ought to have gone to Parliament to sanction its proceedings. On these grounds he had entered more at large than he otherwise should have done, and begged to apologize to their Lordships for the time he had trespassed on their attention.

The Earl of Eldon

said, he rose with some diffidence upon the present occasion, but, as an honest man, he was called upon to state his opinion upon this subject. He wished to say, that he had seen the Motion of his noble friend before it was submitted to their Lordships, and had given it his approbation; but he was bound to say, that, since he had come into the House, he reflected on the subject, and he thought it went too far. He did not remember a single case in which the opinion of the Judges had been asked in order to ascertain whether the proceedings of the Ministers were authorised by law, and in order to ground on that opinion a Parliamentary proceeding. He could not reconcile his mind, after mature consideration, to ask the opinion of the Judges in the first instance. He trusted, therefore, that his noble friend would not press his Motion in its present terms. In what he was about to say, he proposed, therefore, to discuss the legality of the course itself pursued by Government, and thus to narrow the grounds of the Motion. The noble and learned Lord upon the Woolsack had entered, at considerable length, into the legality of the course which the Government had pursued, and to such an extent he (Lord Eldon) would not follow him; but this he would say, after the experience of a long political and legal life, that he never heard of any thing more unwarrantable than the payment of money to Russia after the obligations of the Treaty of 1816 had altogether "ceased and determined." He would not say that the Government, for the sake of preserving the general peace, might not be justified in what they had done, but it must be always done upon their own responsibility. If their not doing so might endanger the public peace, then it would be their duty to come to Parliament to state their case, and ask for a Bill of Indemnity. The Treaty of 1816 was laid before Parliament, and the Parliament enacted, that a certain thing should be done; it adopted the treaty to a certain extent, and provided for its execution as long as Holland and Belgium should be united and not sepa- rated. As long as that condition lasted, Great Britain was bound to pay the money, and pay it for the behoof of Russia. The only question was, what had the executive Government to do with the Parliament? and the only answer was, to ascertain what Parliament had done as to the treaty? The Parliament had said, Thus far shall ye go, and no further. If the Government applied to the law officers of the Crown to know what authority the Acts of Parliament gave, the law officers of the Crown of former days would have looked only into the Act of Parliament, and by that have defined the authority given by Parliament. But, in this case, an Attorney General, who was a common-law lawyer, applied to a Solicitor General, who was an equity lawyer, to know what was to be done on equitable principles. The Attorney General and Solicitor General, on being called upon to give an opinion, should have confined themselves strictly to the Act of Parliament, and its legal construction. The Government went to Parliament in 1816 with the treaty, and the Parliament said, that the treaty should go no further; but the law officers considered what the Parliament ought to have done. He should like to know, whether their Lordships were to act under the Treaty of 1816, as interpreted by the law officers, or under the Act of Parliament, by which its provisions were to be carried into effect The stipulation of both the one and the other was the continued union of Belgium and Holland. But that union ceased, or in other words, their separation took place. But the noble and learned Lord (Lord Brougham) contended that the mere fact of separation, without the admitted sovereignty and independence of Belgium, was not such a separation as to exonerate this country from performing her portion of the Treaty of 1816; and yet this observation was made, this argument assumed, while the King of Great Britain recognized a king, an independent sovereign, on the throne of Belgium. That very acknowledgment should have absolved us from paying any further sums to Russia, in virtue of the Treaty of 1816, while it pleased our Government to act in defiance of common sense, and a proper economy, to continue large and unauthorised payments. He was somewhat acquainted with law, with equity, and with politics, and never yet in the course of all his experience did he meet with so gross and unpardonable a violation of public duty as had been exhibited by the Government in this transaction. If they had no opportunity of coming to Parliament for advice, then they might have acted as they had done; and if they had not time to do so, yet felt compelled to act under the peculiar circumstances of the case, their course should have been to apply for an act of indemnity, which possibly might not be refused. He thought it was his duty upon this occasion to have it recorded as his opinion, that the payment of money, in violation of the Treaty of 1816, was one of the grossest violations of Ministerial duty which he ever recollected. It was said by the noble and learned Lord (Lord Brougham), that where a treaty was made between two parties, neither was bound, unless both agreed; but here was a case where the King of England recognised a king of Belgium, and yet it was contended that the stipulations of the contract of 1816, being so far at an end, England was not released from her obligations to Russia, which was one of the principal parties to such contract. He never before heard so paltry, so untenable a doctrine attempted to be maintained in that House. No man could deny that force and menace had been used towards the king of Holland, before and since the separation of that country from Belgium. But, after all, the question for their Lordships' decision was, whether or not it would be discreet and wise to have the opinion of the Judges upon the right construction of the Act of Parliament under which certain sums were to be paid to Russia? He would bet his life, even if he were fifty years younger than he was, that there was not one of the fifteen Judges in Westminster Hall who would decide it in the same manner as his Majesty's Ministers. There was not one of the Judges such an idiot to do so. He ventured to assert, that no other Judge but the learned Lord upon the Woolsack would have interpreted the Treaty of 1816 as he had done. The question of policy or expediency might be for the Government, but their Lordships were called upon to decide simply on the Act of Parliament, by which money was stipulated to be paid to Russia. The noble and learned Lord upon the Woolsack had cited the opinions of Lord Stowell in advocacy of the doctrine which he mentioned relative to the distinction between the separation of two States and the acknowledgment of their respective sovereignties; but this he could say, that there was not a man in Europe who thought worse of the transaction then under discussion than his noble relative. He did not know what course his noble and learned friend meant to pursue, but if a motion had been made calling on Ministers to vindicate themselves on a charge of committing a breach of the laws of the country, and if the matter had been gone into, he felt that it would have been impossible for him to withhold his vote for passing on them the strongest censure.

Lord Wynford,

in reply, said, that the simple question here was relative to the construction of an Act of Parliament, and he knew of no more competent persons to decide it than the learned Judges of the land. All he sought for by his motion was information for the guidance of their Lordships, because he thought that the conduct of the Ministry was not only open to censure, but was such as to render it advisable to take the most effectual steps to prevent similar mischief in future, and he had no doubt, notwithstanding what had been said by his noble and learned friend upon the Woolsack, that law and justice were in favour of his opinion. With respect to the construction of the treaty, he thought that his noble friend on the Woolsack had not met the real question before the House. He had travelled, indeed, in the course, of his speech all over Europe, but the only way in which he had met the true point in debate was by a something which sounded very much like a quibble; and without once mentioning the consideration. This, he contended, was the most material part of the case. After the triumphant answer which had been given to the noble and learned Lord by his noble and learned friend who immediately preceded him, he would not trespass further upon their Lordships, but withdraw the Motion.

The Motion withdrawn.