Lords Sitting of 30 June 1843

MINUTES.
Public —2aChelsea Hospital; Apprehension of Offenders (America); Apprehension of offenders (France).
Reported.—Sugar Duties Bill.
Private.1–1a Bishop of Kilmore's, etc. Estate; Ross and Cromarty Jurisdiction.
2a Maryport and Carlisle Railway; Liverpool Watering; Saggart Inclosure Award (or Swift's Hospital); Salmon Fisheries.
Reported.— Earl of Gainsborough's Estate; Neath Harbour (No. 2); Mildenhall Drainage; South Eastern and London and Croydon Railway.
3a and passed:—Borrowstownness Harbour; Hull Water Works.
PETITIONS PRESENTED. By Lord Lyttleton, from Dudley, Lord Hatherton, from West Bromwich, and Cheltenham, and Lord Wharncliffe, from Sheffield, against the Charitable Loan Societies Bill.— By Lord Carbery, from Cork, against the Repeal Agitation in Ireland.

THE REPEAL AGITATION(IRELAND).
Lord Carberypresented, pursuant to notice, a petition from the county of Cork, complaining of the present repeal agitation, and of the dangerous meetings which were daily held for the ostensible purpose of petitioning Parliament for the repeal of the act of legislative union. He would be cautious and not exaggerate the alarm and the danger consequent on the proceedings of which the petition complained; but his duty constrained him to declare that those proceedings were fraught not only with alarm but with peril to the loyal and peaceable portion of the Irish community. Up to the last month, the agitation had been somewhat confined in its operations—meetings had been held only in the smaller towns, and the people had congregated in comparatively smaller numbers. But those minor meetings were only preparatory to more alarming demonstrations. Within the county from which this petition emanated, there had been recently held, independently of several smaller meetings, two great district meetings, to which the population at large had thronged in immense multitudes. He was

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not disposed to give credence to statements plainly exaggerated, nor would he now inquire whether the multitudes so congregated numbered hundreds of thousands or not. One thing was clear, they were sufficiently large to create intense anxiety and alarm; and their effect, in conjunction with the language used, the objects sought, and the sentiments inspired, had been to compel numbers of peaceable and loyal well-disposed persons to leave the country and either throng into the large towns, or remove to a greater distance from the scenes of excitement. About a month ago a new feature had developed itself in this agitation, and had greatly augmented the excitement. Before that period the Roman Catholic bishops generally had stood aloof, or had at least taken no active part in the agitation. But about the time referred to, the greater number of those bishops had given in their adhesion to the repeal association. Since that adhesion by letter, by the delivery of speeches, and by the subscription of their names, on the part of the Roman Catholic bishops, the parish priests, before sufficiently so disposed, had become more active in their support of the agitation. They had marshalled their flocks in thousands, marched them in regular order, to great public meetings, and had collected money from them for the purposes contemplated by the repeal association. Nay, what was infinitely more to be regretted, the priests had threatened, with curses, all those who should not attend the meetings. True, as yet the public peace had not been broken; but if these things were permitted, who could answer for the continued peace of the country? About the time that the Roman Catholic bishops generally had thrown themselves into the ranks of repeal, the association in Dublin issued an address to the people of Ireland. It was signed by Mr. O'Connell, as chairman of a committee, and was dated the 6th of June. It stated as their objects: —1st, restoration of a separate and local parliament for Ireland; 2nd, the restoration of the judicial independence of Ireland; next, the remodelling of the House of Commons, household suffrage, vote by ballot, and the severance of all connexion between the church and the state. And then came the fixity of tenure, which noble Lords must be convinced was only another name for agrarian dominion—Absenteeism and the public debt formed
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two other objects of contemplated alteration. And the address concluded with those words—
"The time is come when Irishmen can make Ireland their own. Where is the man with an Irish heart who will not join in the glorious struggle for the rights, the liberties, the prosperity of his native land? Away, then, with idle fears, with vain jealousies, with causeless apprehensions, with anti-religious animosities. Irishmen, one and all, Catholic, Protestant, Presbyterian, Dissenter—rally for the land of your birth—your fatherland."
On those exciting topics, speeches the most inflammatory were addressed to assembled thousands. The petition which he had presented prayed their Lordships to pass some law to repress those proceedings. As to the great and avowed object, the repeal of the union, there were, he thought, only two ways of accomplishing it—either by coming to Parliament and obtaining a law for the purpose, or by force and civil war. He felt justified in saying that to the latter mode alone the conduct of the repeal leaders pointed. The two hon. Members for his own county, the county of Cork, did not think it right to come to Parliament; they would not even petition Parliament on the subject; they thought it better to harangue the people in the most exciting manner. Among the evil effects of this agitation was, that it effectually prevented the introduction of English capital into the country. That was a matter of fact, an instance of which had come within his own knowledge, where a large capital was about to be embarked in an enterprise in his own vicinity; but, in consequence of the alarming state of the country, the enterprise was suspended, if not wholly abandoned. He would ask their Lordships how long was this to continue? The country was endangered—the confidence of the loyal, the peaceable, and well-disposed was shaken, and disaffection was widely spreading. He would conclude by expressing his deep and earnest conviction that her Majesty's Government was bound to take some prompt and decisive steps, with the view of putting an end to a state of things so alarming.
Petition to lie on the Table.

EXTRADITION OF OFFENDERS.
The Earl of Aberdeenin moving the second reading of the Apprehension of Offenders (America) Bill, said he presumed the ob-

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ject of the measure would meet with general support. It seemed natural and reasonable, that friendly and neighbouring states should aid each other the detection and punishment of acts considered criminal by the whole of the civilised world, by which life and property were attacked. Many writers had maintained that this was a duty which governments owed to each other; among others, those who were most quoted, and considered of most authority in this country, Grotius and Vattel, both declared it a national duty. That doctrine had received support from English judges; but as the law stood, it was now he believed, universally admitted that no power existed in this country of delivering any persons to the authorities of a foreign state, without the sanction of an act of Parliament. The' principle was fully laid down last year, in the case of the Creole, by noble and learned Members of that House, that to deliver up the individuals concerned therein to be tried for murder, was not within the competence of Government. Their Lordships might be aware that the treaty of 1794 with the United States of America, contained a provision similar in principle to the object of the present bill. The class of offenders to which that treaty related, was not so numerous as that embraced by the present bill, and its duration was limited. It expired in 1806, and though a new treaty was negotiated in that year, as it was not ratified, no such stipulations had since been in existence. From various circumstances it had been impossible to come to an understanding on the subject with the United States Government, until the mission of his noble Friend near him enabled him to take up the subject, and conclude an engagement with the United States similar to one proposed in 1840. The crimes specified in the treaty of Washington were —murder, assault with intent to commit murder, piracy, forgery, arson, robbery, or the utterance of forged paper. He did not anticipate that any inconvenience could arise from the carrying out of this treaty, except what referred to the case of fugitive slaves, and this was no doubt a subject that would require the utmost caution on the part of those who would have to administer the law arising from the new relations between the two countries. Some people had supposed that a fugitive slave might be delivered up under this
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treaty. This, be must say, was a most unfounded notion. Not only was a fugitive slave guilty of no crime in endeavouring to escape from a state of bondage, but he was entitled to the sympathy and encouragement of all those who were animated by Christian feelings. But then it had been said, a slave running away might be accused of theft on the ground that the very clothes he wore were not his own, but the property of his master. This, however, in his judgment could never be construed into a theft. Nay, more, if the slave took a horse with him, or seized upon a boat, or in short, appropriated to his use anything that was necessary to his flight, such an act could never be held to establish an animus furandi. Another point must be borne in mind, namely, that if at any time a fugitive slave should be demanded under this treaty, the demand would not be made by any slave state, but by the central government at Washington, and this would in itself be a considerable security against any improper application. Another security against any improper application would be found in the reference which would be made to the home Government by the governors of colonies, in case of any difficulty arising, when the home Government would, of course, be assisted by the best legal advice that could be obtained. But the great security was that by an express stipulation in the treaty it was agreed that the articles by which the two governments bound themselves to a mutual surrender of criminals, should continue in force only till one or other of the two governments signified its intention to terminate it, so that, whenever inconveniences, arose, either government was at liberty to put an end to that part of the treaty, without being under the necessity of giving any notice beforehand. The convention with France was of a more limited nature. Here also, a similar convention had been entered into on a former occasion, and provisions had been introduced into the Alien Bill of 1802, with a view to give effect to it. But the peace at that period was so short in its duration, that the convention never came into force. The French government had since expressed an anxiety on several occasions to renew that treaty, and the present moment had been deemed particularly well calculated for renewing it, as it was thought desirable to improve that spirit of good

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neighbourhood and those friendly relations that at present so happily existed between the two countries. It had been thought most advisable, however, to begin with the same articles as were contained in the treaty of Amiens, and farther extension might afterwards be easily given to the principles. The treaty with France had been made valid for one year, and afterwards, until six months after either party had intimated a wish to terminate the arrangement. He hoped, under these circumstances, that no objection would be made to the second reading of these bills.
Lord Broughamhad listened with much gratification to the satisfactory statement of his noble Friend, and particularly to that part of his application which referred to fugitive slaves. It might, however, be matter for future consideration whether it would not be better to introduce some explanatory clause into the bill, in order to do away with all ambiguity on this point. He felt great satisfaction at observing in these bills a proof of the good feeling that existed between the several countries parties to these treaties.
Lord Cottenhamwas understood to express an opinion that some legislative measure would be desirable to explain the nature of those acts that might be offences in the one country but not in the other.
Lord Campbellsaid, he highly approved of these bills. Without treaty it was clear that no state was bound to deliver up offenders to be tried for crimes committed out of its territories, but there was an imperfect obligation on all states for the general security of mankind to enter into treaties for reciprocal extradition. The only anxiety here was, that the slave-holding provinces in America might not be permitted to pervert this arrangement into an instrument of reclaiming fugitive slaves. But the principal object of his then offering himself to the attention of the House was to submit that there were other articles of the Treaty of 'Washington, which required to be sanctioned by the legislature. He did not mean to revive any of the questions which had been agitated on the merits of that treaty. He was willing that it should be carried into full effect, as much as if it had been in all respects for the honor and advantage of England. The third article stipulates that the produce of the territory ceded to America on the banks of the river St. John, when it is brought down that river
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to New Brunswick, shall be dealt with as if it were the produce of that province, so that it may be shipped to England as English colonial produce, and may be imported into England as English colonial produce, paying duties as English colonial produce. This might be all very proper, but could not be done by the mere prerogative of the Crown, as the duties to be paid on the produce of the United States of America, and on the produce of the English colonies, had been fixed by act of Parliament. A still more important consideration arose from the Boundary Line which transferred an English settlement to the United States. The Treaty of Washington in fixing the Boundary, did not proceed upon a construction of the Treaty of Versailles, agreed to between Oswald and Franklin. This treaty was disregarded by Lord Ashburton and Mr. Webster, who "agreed on a conventional line convenient to both parties, with such equivalents and compensations as were deemed just and reasonable." By this conventional line the Madawaska settlement on the right bank of the St. John's was made over to the Americans. The history of this settlement was given by the noble negotiator himself in a letter to Mr. Webster.
"It was originally formed from the French establishments in Acadie, and has been uninterrupted under French or British dominion, and never under any other laws. The inhabitants have professed great apprehensions of being surrendered by Great Britain, and have lately sent an earnest petition to the Queen deprecating that being done."
The inhabitants before the treaty were, English subjects governed by English magistrates, owing allegiance to the Crown of England. The Queen's writ and no other writ ran in that settlement. The settlement must be considered as part of the British Empire. Could it be alienated by the mere power of the prerogative? He apprehended that it could not. The Queen can declare war and make treaties of peace. A conquest made in war at the conclusion of peace, might be delivered back, and if de facto an English possession had been taken from us during the war, the Crown by a treaty of peace might probably renounce all claim to it. But when by treaty a territory had been annexed to the Crown in full Sovereignty, and in time of peace we were in possession of it, he denied the right of

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the Crown to surrender it by treaty to a foreign state. All Jurists agreed that the' alienation of territory can only be by the supreme authority in any state. The venal instance given in the treaty of Madrid, by which Francis I, stipulated to surrender the Duchy of Burgundy to Charles V. The Kings of France could then make peace and war, but the States-general, from time to time met. The States-general not having ratified this treaty, it was not considered binding on France, and France was not considered guilty of bad faith in refusing to fulfil it. Vattel says:
"But now that there are no longer any meetings of the States-general in France; the King remains the sole organ of the state, with respect to other powers, these latter have a right to take his will for that of all France; and the cessions the King might make them, would remain valid, in virtue of the tacit consent by which the nation has vested the King with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the Crown of France. For greater security however, other powers have often required that their treaties should be registered in the Parliament of Paris: but at present even this formality seems to be laid aside."
What says this great Jurist respecting the constitution of England?
"The Kings of England are authorised to conclude treaties of peace and alliance; but they cannot by those treaties alienate any of the possessions of the Crown, without the consent of Parliament."
The Madawaska settlement being un-distinguishable in this respect from Quebec, the cession of it required Parliamentary ratification. The House might recollect that in the year 1783, there was a controversy on this subject between two great lawyers, Lord Loughborough and Lord Thurlow—the former contending that the treaty with the United States required the sanction of Parliament—which was stoutly denied by the latter—but his reasoning is quite consistent with the necessity of an act of Parliament on this occasion, for before the commencement of the negotiation there had been an act passed to authorize the Crown to treat with the revolted colonies, and as we had de facto lost the territory, it was a mere release of allegiance. It was monstrous, however, to suppose that the Crown could by treaty now alienate to a foreign state, the Island of Jamaica, or the Isle of Man, or the Isle
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of Wight, or the Isle of Thanet, or the Isle of Dogs. If such a power exists, it is fully executed, and the transfer takes place the moment the treaty is ratified by the Crown, so that the empire might be dismembered, and the country irretrievably ruined before Parliament was made aware of the calamity. He trusted, therefore, that to sanction the 1st. Article of the Treaty of Washington, the Government would bring in a bill which would no doubt receive the unanimous consent of both Houses.
The Earl of Aberdeensaid, the suggestion of the noble and learned Lord was certainly deserving of consideration. Such a step, however, must be taken as the noble and learned Lord suggested, sanctioned by the other House.
The Marquess of Lansdownesaid, there were two crimes omitted in the treaty with France, which were inserted in that with America. He should like to know the reason why such a difference existed.
The Earl of Aberdeen:Perhaps there was no very good reason why it should be so. The two treaties, however, had no connection with each other. The reason of the omission which the noble Marquess pointed out was this: the treaty of Amiens never having been carried into execution, it was thought prudent to renew its conditions, and the crimes now enumerated were all that were included in the former treaty. The French Government were desirous that the treaty should have been so extended; but on his suggestion, they thought it the more prudent course to commence with the limited provisions of the former treaty.
Lord Ashburtoncould assure their Lordships that there was no part of the treaty, which had received their Lordships' approbation, that he looked to with more anxiety than its possible operation on the condition of slavery. It was a barbarous system that a malefactor by overstepping what was frequently a very narrow boundary between two countries, should escape punishment. He wondered it had lasted so long. We had the satisfaction of knowing that Mr. Jay's treaty had continued in operation twelve years, and no difficulty was found to arise under it. As to any difficulty that might occur with regard to the capture of slaves, it should be recollected that the slave-holding states were 300 miles distant from our territory. Besides, this question was now settled on

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perfectly fair grounds; namely, that a slave once landing on any part of our dominions could never be claimed, nor his liberty be called in question; while, on the other hand, it was understood that no attempt at propaganism should be attempted by us within the territory of the United States. He had the satisfaction of knowing that since 1783 there probably never existed more amicable feelings than those which now prevailed between the two countries. And he was sure that all wise statesmen in this country would cultivate that feeling, and he trusted it would invariably mark our intercourse for the future.
Bill read a second time.
Their Lordships adjourned.