HL Deb 16 August 1839 vol 50 cc365-8

House in Committee on the Slave-Trade Suppression Bill.

Lord Lyndhurst

would then state the amendment he should propose, the object of which was to confine the operation of the bill to Portuguese vessels, and piratical vessels engaged in the slave-trade—that was to say, vessels having no national character. For this purpose he proposed to omit the words, That in case her Majesty should please to issue orders to her cruisers to capture Portuguese vessels engaged in the slave-trade, or vessels of any state whatever engaged in the slave-trade, not having on board or the masters whereof should neglect to produce on demand papers, showing to the subjects of what state such vessels belong, And to substitute the words, That in case her Majesty should please to issue orders to her cruisers to capture Portuguese vessels engaged in slave-trade, or any other vessels engaged in the slave-trade, and not justly entitled to claim the protection of any flag.

Lord Brougham

said, he understood it would be convenient if he were to call attention to the effect of the amendment of the noble Lord, as they all had but one object. He was sure that he had not the slightest idea of making this a party question, any more than his noble and learned Friend (Lord Denman). This was no party question, and the best proof of that was, the division of last night, when some of the most constant supporters of the noble Duke opposite (the Duke of Wellington) voted against him. He was quite sure, that the noble Duke had, as much as any man in England, the strongest desire to put down this human traffic. He wished to rail the attention of his noble and learned Friend to the difficulty that would be created if his amendment were agreed to. It would only be necessary for a Portuguese slaver or a pirate to hoist the French flag, and from that moment they might sail in safety. If this clause were altogether omitted, and if the bill itself were burned, the Crown could give orders to carry into effect the object sought to be effected by this bill, the only thing was, that the amendment of his noble and learned Friend would leave the masters and captains of cruisers without any security or indemnity in cases where they might seize a wrong vessel, which they might have reason to suppose was a slave vessel carrying a neutral flag. Let their Lordships once obtain a clear idea of what the difficulties were, and what bearing upon those difficulties the bill had, and what bearing it had not, and could not have, and let them define the bounds of the royal prerogative, and the legislative power of Parliament, as respected the rights of neutrals, and every part of the discussion would then be easy and plain. Whatever they enacted in this statute, did not signify as regarded America, France, or any other country, a single farthing. This bill was intended merely to regulate their own courts for their own purposes. This Act of Parliament could not injure our foreign relations, or endanger the peace of the country, whether they passed it in its present shape or otherwise. The right of seizure and search did not depend upon this Act of Parliament, but upon the orders of the Crown.

Lord Lyndhurst

said, that by the bill as it stood, not only Portuguese vessels, but the vessels of all nations, were subject to seizure and search, and this search, as regards the other nations, was in contravention of treaties. It might be said, how were they to distinguish piratical vessels from other vessels? This was a batter that rested with the Ministers of the Crown, and it was their duty, if a vessel were improperly seized, to make the necessary explanations.

Lord Ellenborough

opposed the amendment, and cited a decision delivered in 1817 by the eminent Admiralty Judge, Sir W. Scott, in the case of "Le Louis," which was strongly against permitting the right of search in time of peace. He implored of their Lordships not to take the first step in this novel course of legislation, nor authorize by their act that which he held to be contrary to the law of nations, which would excite the jealousy of every other maritime power, and would not ultimately succeed in putting down the evil which it was intended to suppress, while it would most probably have the effect of involving this country in an universal war.

The Lord-Chancellor

said, that the bill did not touch in the slightest degree the right of search, as alluded to by the learned Judge, whose opinion the noble Lord had cited. Captains, in time of peace or war, might run the same risk which they would under this bill. How were they to ascertain whether a vessel was privateering or Portuguese without instituting a search? The matter must be left to the discretion of the officer in command, and that was simply what this bill proposed. If the right of search was confined to vessels supposed to be Portuguese, it would in effect legalize piracy, because vessels would take care not to have any evidence to show that they belonged to any nation whatever. The amendment would entirely protect all nations who, by treaty, had a right to say this country had no right to interfere, and allowed an interference with Portuguese vessels engaged in the slave-trade, against which a case had been made out, and with pirates in whose favour no noble Lord had spoken.

The Earl of Wicklow

observed, that the argument of the noble and learned Lord did not answer the objections taken by his noble Friend near him (Lord Ellenborough). This bill gave no right of search which did not at present exist, but it appeared to give a Parliamentary sanction to the Government, exercising a power which the Crown ought to exercise on the responsibility of the Government, and not under the authority of this provision. The great objection was, that the bill did not give a right, but that it sanctioned a practice. He objected also to the amendment suggested in the second clause, because he thought officers guilty of error ought not to be protected even in their own courts of justice. He therefore hoped the amendment in the second clause would not be persevered in.

Lord Lyndhurst

said, he should persevere in the amendment to the second clause, because he thought, that a captain and crew, acting on the authority of Government, should not be responsible for that act, but that if any act was committed which should be contrary to the law of nations, the matter ought to be left between the two states, and compensation should be made by the state, and not by the parties who had acted under its authority. That was the object of his second amendment.

The Earl of Devon

should be ready to agree in the amendment of his noble and learned Friend (Lord Lyndhurst), if he was first informed of the manner in which it was intended to advise her Majesty to exercise the Royal prerogative, but he objected to the principle which sought to sanction by Act of Parliament an unlimited and undefined right about to be exercised against all the world. No grounds at all had been laid which ought to induce their Lordships to believe, that the Government would do right in advising orders for general search, and for these reasons he objected to the bill as it stood.

Lord Ellenborough

said, that by the treaty with France, this country was only empowered to employ as limited a number of ships as France in the suppression of the slave-trade; therefore, if any greater number of vessels were employed, those vessels could not act against French ships engaged in that trade. The noble Earl last night appeared to be struck with astonishment because he (Lord Ellenborough) had asked to see the instructions, but, notwithstanding the horror the noble Earl might feel, the very first time any capture under this Act was brought under adjudication, those instructions must be produced, or no adjudication could take place. The Act, then, ought to be in conformity with the instructions, because the officers would be indemnified only according to the instructions. Therefore he did not think it was a very unreasonable thing to ask for the instructions, when they were legislating upon them, for otherwise they might pass a bill which would be totally inapplicable to them.

The Earl of Minto

observed, that it was perfectly true, that by the treaty with France this country was tied down to the employment of a certain number of ships only in the suppression of the slave-trade. But there was a number of other ships employed in putting down the trade under other flags.

House resumed.