Lords Sitting of 6 February 1852

THE KAFIR WAR—SALE OF AMMUNITION TO THE KAFIRS.
The EARL of MALMESBURYsaid, that seeing his noble Friend the Secretary for the Colonies in his place, he should like to ask him a question, before answering which, he hoped he would not require the formality of a notice. He had seen in the papers which the noble Earl had laid upon the table of their Lordships' House, a statement which he was sure would be extremely revolting to the public, as showing a degree of cupidity and a forgetfulness of all feelings of patriotism which was highly discreditable to this country. The statement was, that a large quantity of gunpowder had been recently exported from this country to the Cape Colony, and there sold to our enemies the Kafirs. The noble EARL, in these papers, spoke justly in thé strongest language of this practice. Certainly the noble EARL appeared to have done what he could on the occasion, by giving directions to the Governor to follow up with severity any person detected in selling this ammunition when it reached the Cape; but he wished to ask the noble EARL whether he could not take measures in this country for stopping the further export of that material; because, if he was not mistaken, large quantities of gunpowder could not be exported without some permission from the authorities in England, and must be shipped, he believed, almost under the eyes of the Ordnance. He wished to ask, therefore, whether the noble EARL had any intention of bringing persons guilty of such an offence in this country to trial or exposure; whether there were any means of preventing the continuance of such a practice; and whether he was aware that arms as well as ammunition were carried from this country to the Cape to be sold to our enemies?
EARL GREYsaid, in reference to the important subject involved in the noble Earl's question, he thought the best mode in which he could answer it was by simply stating to the House precisely what had occurred. He was quite aware, before the war broke out, that very large quantities
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of gunpowder had been sent from this country to the Cape of Good Hope; but he was also aware that there was no law to prohibit it; he believed, also, that the merchants of this country sent it out without knowing the bad purposes to which it was applied; for in peaceable times gunpowder was one of the main articles of export to the Cape, where a great quantity of it was used, it being a necessary article in the colony. But in the month of November last, the Chairman of the Board of Customs communicated to his right hon. Friend the Chancellor of the Exchequer and to himself the fact that these shipments of gunpowder and arms to the Cape were going on. The moment that he received this intimation, he (Earl Grey) wrote a despatch at once to the Governor at the Cape (which despatch was included in the papers on their Lordships' table), and in it he called his Excellency's attention to the circumstance, that he might direct immediate measures to be taken to prevent the arms and ammunition from being used so as to fall into the hands of our enemies. At the same time, on consulting with the Board of Customs and other persons that he thought capable of giving him the best advice, he had come to the conclusion that it would be inexpedient to attempt to stop the exportation of arms and gunpowder from this country; and for this reason, that by doing so, if the gunpowder was intended for unlawful purposes, it would only put the exporters on their guard, and they could send it first to France or Holland, whence it could be taken and landed on the southern coast of Africa without going to Cape Town or Graham's Town: and, secondly, because he thought that by continuing to allow the transmission of arms and ammunition to the Cape, without any interference with it at home, he should be able to cut up the traffic more certainly and effectually; and he was happy to say that, in a report that he had received within the last few days from the collector of customs at the Cape, that gentlemen expressed a strong opinion that the best course to adopt was to endeavour to arrest the traffic when it approached the colony, rather than attempt to check it from this country. Their Lordships would be aware from the despatches on the table, that an ordinance had been passed (he was bound to say, when it was too late) by the Legislative Council at the Cape, for intercepting the trade there; and he had received, only yesterday, from the Admiralty, a report from

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the Commodore on the African station, stating that he had despatched one of the vessels under his command to prevent gunpowder from being landed on the West Coast of Africa. He was informed by a very able officer that the places where the landing of it was practicable were so very few that there would be no difficulty in interrupting the traffic; but at the same time it was utterly impossible to prevent the loyal inhabitants and farmers in the colony from purchasing powder, because they required to have it for their own defence, not only against the Kafirs, but also against the wild beasts abounding in that part of Africa, and which were a source of very serious danger. After a full consideration of the question, the Legislative Council at the Cape had decided on a measure which had now become law, as on the whole the best course that could be adopted; and he was led to hope, by the information that he had received, that being armed with these powers the Government would be able to suppress this traffic. But he was concerned to add that, in his opinion, this precaution had been taken much too late, and it was to him quite incomprehensible, knowing the strong laws in existence at the Cape against the sale of gunpowder to the Kaffirs, that this trade had been allowed to go on so long. The Commodore reported that the trade was now stopped; but his expression was that during the last few months several hundred tons of powder had been landed along the western coast.
The EARL of MALMESRURYsaid, it appeared to him that if the sale of gunpowder at the Cape was placed under this restriction, that licences should be procured from the Government by persons to whom it was necessary for self-defence, either against the Kafirs or wild beasts, we should have some guarantee against the enemy obtaining it. The noble EARL had forgotten that his question applied to arms as well as to gunpowder.
EARL GREYsaid, there was no fault to find with the ordinance of the Legislative Council, except that it ought to have been passed last February instead of last November. The instructions he had given extended to the prevention of the trade in arms as well as gunpowder intended for the enemy. He had seen in the newspapers a report of certain shipments of arms from this country; but he had no reason to believe that they were intended for the Cape; he believed they were for
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traffic on the north-western coast of Africa.
The EARL of HARDWICKEwas understood to make an inquiry about the use of arms by the population at the Cape; to which
EARL GREYreplied, that he thought in that country it was the fashion for almost everybody to carry arms.

RECALL OF MAJOR GENERAL SIR H. SMITH FROM THE CAPE.
The MARQUESS of LONDONDERRYsaid, that as the subject of the Kaffir war had been that evening brought under consideration, he could not refrain from putting—though without notice—two or three questions to the noble Earl opposite of a professional character. His first question had reference to the despatch of Earl Grey, dated the 14th of January last, conveying to Major General Sir Harry Smith the opinion which he had formed on his military operations. Now, he had heard with the greatest satisfaction the speech delivered last night by his noble and gallant Friend near him (the Duke of Wellington)—the highest authority on military matters in the world—on the subject of Sir H. Smith. He felt that his noble and gallant Friend had spoken most fitly for his own dignity, and most fitly for the high character of Sir H. Smith. His noble and gallant Friend's speech would be a panacea for the feelings of mortification which Sir H. Smith must endure on hearing that he was made a victim by the noble Earl opposite. He (the Marquess of Londonderry) did not dispute the right of the Government to dismiss any officer; but it was of the highest importance to the well-being of the Army that that right should be exercised with the greatest discretion. It should not be in the power of Government to dismiss an officer of high reputation at its pleasure, and to place in his stead an officer whose military exploits were not known. It seemed strange that any Government should venture to place in command an officer who knew nothing of his duties, and should dismiss an officer who had had great experience in the art of war. The selection made of a new Governor for the Cape of Good Hope must go to the country as a selection of the noble Earl; for the determination to dismiss Sir H. Smith was not formed on any decision of his noble and gallant Friend near him, but on the ipse dixit of the noble Earl alone. Sir H. Smith was not

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an officer of ordinary character; for, without him, where would have been the victory of Aliwal? His high character was the property of his country, and therefore he (the Marquess of Londonderry) wished to know what the precedents were on which the noble Earl defended his recall of Sir H. Smith, and the appointment of Major-General Cathcart as his successor? If the war should become worse in Kafraria, on the noble Earl and the Government would rest the responsibility for the disaster. He doubted the policy as well as the justice of dispensing thus unceremoniously with the services of such an officer as Sir H. Smith, after the high testimonial to his merits which had been recently given by his noble and gallant Friend the Commander-in-Chief. He concluded by asking the noble EARL whether the dismissal of Sir Harry Smith was approved by the Commander-in-Chief, or was entirely the act of the Colonial Office; and whether the appointment of Major-General Cathcart as successor to General Sir H. Smith, late Governor of the Cape of Good Hope, was founded on the selection of the Horse Guards, or whether it was the appointment of the noble Earl himself?
EARL GREY: My Lords, I am not sure if the questions just put by the noble Marquess opposite are of a very usual description. I am quite certain that many of the remarks that he has made are remarks in which it would be very unfitting in me, on this occasion at all events, to follow him. If the noble Marquess wishes to question the measure which has been adopted by the Government, let him do so in the regular way, and take the sense of your Lordships' House on the subject, and I shall be prepared to defend the course which we have pursued. But mere irregular remarks at this time on so important a subject shall not lead me into following the noble Marquess, I will only say thus much in answer to his question, first, regarding the recall of Sir Henry Smith. It appeared to me, for the reasons stated in those despatches to which the noble Marquess adverted, that that officer ought to be relieved from his present duties. I consulted my Colleagues on the subject; and, with their unanimous consent, I determined to submit the advice to Her Majesty, on considerations not exclusively military (as to those who read the papers on the table will be evident, and as is further evident by the very recent discussion
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and conversation in this House), that we considered it necessary, although a most painful duty, to relieve Sir Harry Smith from his duties as Governor of the Cape of Good Hope. Having determined on that course, most undoubtedly I did not determine on the selection of the officer whose name I submitted to the Queen as his successor, without consulting the highest military authority to which it was in my power to appeal. I did consult the noble Duke at the table (the Duke of Wellington), and I think the noble Duke will bear me out in saying that on naming Major-General Cathcart as the person who might properly be appointed to this responsible situation, the answer of the Commander-in-Chief was, that if Sir Harry Smith was to be relieved, he did not think that any officer could be selected more fit for that military employment than Major-General Cathcart. This answer I hope will satisfy the noble Marquess; and certainly I decline to go any further, and discuss now at greater length the reasons for the measure we have taken. I will only add, that having had intercourse with Sir Harry Smith before he went to the Cape, and having had the highest respect for his character, and believing him entitled to the high reputation which he bears, it has never been my lot while I have had to conduct public affairs, to have so painful a duty cast upon me as having to advise Her Majesty to recall him. But believing in my conscience that that measure was necessary, I could not shrink from performing my duty, however painful it might be.

APPELLATE JURISDICTION.
LORD BROUGHAMsaid, that in moving for returns of the cases of appeal to their Lordships' House under its appellate jurisdiction, he wished to take the opportunity of making a few observations regarding the hearing of appeals from the courts in Scotland. He had been represented last Session as having expressed his opinion that their Lordships should have the assistance of one or more Scotch Judges, or of an assessor from these Courts, in hearing appeals from Scotland. Now, the opinion which he had expressed was quite the reverse of that, for he considered that the suggestion, which was very likely to be made in consequence of the calling in Equity Judges to assist the House on English cases, would be attended with difficulties that were almost insuperable as

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regarded these forms in Scotland. The Faculty of Advocates in Edinburgh had sent up a part of their body on a former occasion to confer with himself and some of his noble and learned friends upon the subject. He had entered into correspondence with them, having left town before their arrival; and the result of their communications had been, so far as his own opinion was concerned, that the difficulties of the question were not perhaps wholly insurmountable, and that some means might by possibility be devised to remove the anomaly of the present arrangements. He could go no further than this. At all events, every one must feel that those difficulties were great enough to make the House pause before it effected any important change in the appellate jurisdiction, and that they were bound to apply every relief and remedy that could be suggested which might appear likely to lessen the mischief complained of. Without going into the entire question, he was about to suggest to their Lordships and to his noble and learned Friend (the Lord Chancellor) what he thought would be a very important improvement in their mode of conducting the appellate business, which he would venture to say—and he spoke on the strength of communications he had had with certain of the heads of the Courts in Scotland—would have a most valuable effect in removing the difficulties of the case. It was simply that they should take the Scotch appeals together at some period of the Session, and he should say, at that period of the Session which was most convenient to the Scotch practitioners. There were two months of recess in the Scotch courts, commencing in March and ending in May. Why, then, should not their Lordships take these two months for the Scotch appeals? The suitors in England and in Ireland would have no right to complain of such an arrangement, because they would gain advantage by having the first part of the Session devoted entirely to their business; and if there were any special case requiring the immediate interference of the House, the Scotch appeals might be discontinued for a day or two. He thought it was of great importance that they should take the Scotch appeals continuously, which would be the course most convenient for Scotch practitioners and suitors, and would also be the best for their Lordships themselves, because it would procure for them the assistance and aid of Scotch lawyers. It was of essential im
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portance, too, that cases should be heard de die in diem, without any interval or adjournment.
The LORD CHANCELLORsaid, that undoubtedly there was considerable inconvenience and anomaly connected with the hearing of Scotch cases in their Lordships' House: but he was not aware that any different course from that now pursued had been proposed by Scotch practitioners. However, he was now in communication with members of the legal profession in Scotland upon the subject, and he should give his best consideration to any changes which they might suggest in the present arrangements.
LORD BROUGHAMbegged to say a word or two in addition to what had already fallen from him. It was supposed that on a former occasion he had charged the noble Earl upon the cross benches (Earl Fitzwilliam) with having entertained the preposterous notion that the diminution of fees, or, in other words, of law taxes, would be prejudicial to the public interest, upon the ground that it would foster a mischievous spirit of litigation, and increase the amount of lawsuits. He had never brought so unjust an accusation against the noble Earl. He had, indeed, with, pain and astonishment, found his noble and learned Friend upon the woolsack expressing opinions, last night, in favour of that exploded heresy, and he had then taken occasion to say, what he would now repeat, that, with the exception of his noble and learned Friend, he did not think there had been a sensible man in the kingdom for the last seventy years, indeed never since the days and the earlier days of the illustrious Bentham, who had cherished ideas so utterly at variance with reason as to imagine it was an advantage to the community to have law expensive. He certainly never dreamt of alluding to the noble Earl. It was his noble and learned Friend upon the woolsack of whom he had spoken, and of him alone, lamenting that he should seem to continue an error so mischievous and so long since exploded.

CHANCERY AMENDMENT BILL.
In reply to an observation of Lord LYNDHURST,
The LORD CHANCELLORsaid, that he heard with considerable surprise of the notice which had been given of the introduction of a Bill for the Reform of the Court of Chancery into the other House of Parlia-

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ment on the 16th instant, because he thought that such a Bill, founded on the Report of the Commissioners, and embodying certain of their recommendations, would require a very great amount of thought and arrangement, in order to make it available for any purpose, and he did not see how a well-considered measure could possibly be prepared before the 16th instant.
LORD LYNDHURSTwould suggest that at whatever time the measure alluded to might be prepared, it should be introduced into that, and not into the other House of Parliament. By that means much time might be saved.
LORD BROUGHAMagreed with the proposal of his noble and learned Friend that the Bill had much better be introduced into that House than into the House of Commons. He was aware that there was one motive for introducing it into the other House, namely, the presence there of the learned Commissioners, upon whose most able and learned report the measure would be founded. He had given the subject his best consideration, but he was still inclined to think that, notwithstanding the presence of those learned persons in the other House, it would upon the whole be more expedient that the Bill should be introduced into their Lordships' House.
LORD CRANWORTHfully concurred in the surprise which had been expressed that any one could imagine that a Bill could be framed before the 16th instant, founded on a report so laboured and extensive as that which had been presented.
The LORD CHANCELLORobserved that the Bill would probably contain money clauses, which would render it not so fit to be introduced into that House as into the House of Commons.
LORD BROUGHAMsaid, that no objection could arise on the ground that the Bill contained any money clauses, for it was quite common for money clauses to be omitted from Bills begun in the House of Lords, and to be afterwards inserted in the House of Commons.
The LORD CHANCELLORbegged to assure his noble and learned Friends who had spoken on the subject that their suggestions should receive every respect and consideration; but he could not say at present whether he should recommend the Government to introduce the Bill into their Lordships' House.
House adjourned to Monday next.