HL Deb 26 May 1854 vol 133 cc1008-23

Order of the Day for the House to be put into Committee, read.


said, that in compliance with a suggestion that had been made to him, he would, with their Lordships' permission, proceed with this Bill before the Navy Pay Bill, although properly that pleasure should have the precedence. This alteration in the order of the two Bills was made solely from considerations of convenience. As it had been thought more convenient to allow the second reading of the Bill to pass without debate, and that any objections that might be taken to its provisions should be discussed before going into Committee, he wished, before proceeding to state the main contents of the Bill, to be allowed to refer to a misapprehension that existed out of doors as to the title of the Bill. It had been supposed that his right hon. Friend at the head of the Board of Admiralty (Sir J. Graham) intended to adopt some new method of increasing the strength of our naval force. But the Bill was, in fact, only a prize Bill; the title "Manning the Navy," was the old one, which had been adopted on all occasions, and which it had not been thought advisable now to alter. It had always been customary at the commencement of a war to pass a measure regulating the proceedings with reference to prizes taken in the course of that war. The last Act passed on this subject was the 55 Geo. III., c. 160, which became law three or four weeks after the battle of Waterloo. It was unnecessary to state to their Lordships that without an Act of Parliament, or rather without the preliminary permission of the Sovereign, all prizes belong to the Crown, by whomsoever taken. It had been customary, however, of late years, that those prizes should be ceded to the captors of the prizes rather than carried to the public account. For this purpose a proclamation was issued by Her Majesty, at the commencement of the war, and the present Bill was now before their Lord-ships for the same purpose as that of all the prize Acts that had heretofore been passed—namely, to regulate the proceedings which might take place in the adjudication of prizes, and the distribution of the proceeds of the capture. An Act of Parliament had, invariably, been passed with reference to the prizes taken by the Navy, and the distribution of the prize money; but their Lordships were aware, no doubt, that the practice as regards the Army was different. With regard to the Army, an Order in Council was sufficient. It would be now necessary that a new Order in Council should be passed with reference to prizes taken by the Army, and he had been in communication with the Paymaster General of the Forces on the subject. He hoped, as soon as this Bill had become law, to be enabled to lay before Her Majesty some measure for assimilating to a greater extent the laws of the two services. Up to the present time the greatest discrepancies had existed relative to the distribution of prize money in the Army, and it was very desirable that the practice should be placed on a footing more uniform and satisfactory. With reward to the measure for the Navy, it had always been the practice to vary the Bill according to the circumstances of the war in which the country was engaged; but all the prize Acts that ever had passed had been in their character and main particulars similar, differing only according to the circumstances. On the present occasion there were circumstances which differed from any former wars in which we had been engaged, and which required that in this measure some alterations should be made from previous measures. In the first place this was the first war in which we had been engaged in which at its commencement we engage we had been in such intimate relation with an ally as we were at the present moment with France. That would make some difference in the Bills now before their Lordships, as compared with previous measures for the regulation of prize money. That morning a paper had been circulated and laid upon their Lordships' table, containing a copy of the convention which had been effected between Her Majesty and the Emperor of the French upon the subject; and by that and by the Bill now under consideration it was proposed to carry out the proposals which had been made on behalf of the two Governments. Another fault which had been found under the operation of preceding prize Acts, and which was now sought to be obviated, was the great delay which had taken place in the distribution of money, the proceeds of the sale of prizes. That also would cause a difference. Another complaint which had been made—and made with great justice—had reference to the enormous waste which had been allowed on former occasions, and more especially in the last war, in many parts of the world, although more especially in the colonies of this country than on the coasts of the British Islands. A further alteration in the present Bill, which was one of omission, had reference to privateering. Their Lordships were aware that at the commencement of the war a proclamation had been issued, stating that no privateers would be allowed; and, therefore, many of the provisions of previous prize Acts which applied to privateering were unnecessary and had been omitted. With the exception of these few points, the provisions of the present Bill were substantially the same as those which had been passed at the commencement of previous wars. The Bill contained the usual provision as regarded bounties; but to give effect to that clause, the further intervention of Parliament would be necessary, inasmuch as it had been the practice of Parliament to vote sums of money for the service after the termination of the war. These were the principal provisions of the Bill, which he had gone over as rapidly as possible, as he wished to reserve himself to answer any objection that might be made to the measure. The first clause of the Bill to which he expected some opposition would be made was the 15th. The provisions of that clause were new in substance as well as in form. The alteration which had been made in the present measure was in consequence of the enormous loss and waste which had occurred in the course of the last war, the enormous waste of prize money, which, in many instances, had not found its way to its rightful owners. He was afraid that some of those highly respectable gentlemen, the Navy agents of London, might feel that some stigma was meant to be cast upon them by the provisions of this 15th clause. Undoubtedly, whenever an alteration of this kind took place, and when parties who had hitherto enjoyed the exercise of certain rights and duties were deprived of them, there might be some appearance of stigma cast upon them. However, he might safely say, that no such intention had existed on the part of the Legislature, and certainly there was none on the part of the Government. Undoubtedly the Government had felt that the position of the Navy agents, in respect of the duties which devolved upon them in the late war, were anomalous and improper. The Navy agents were in reality bankers and accountants, and were charged with duties which could only be properly performed by gentlemen exercising the profession of shipkeepers. It was proposed that, instead of devolving upon those agents the duties which they undertook on former occasions—and they not only undertook the duties of bankers and accountants, but prizes, when taken, were handed over to them, sold by them, and the proceeds, after deducting their own expenses, paid by them into the hands of those entitled to them—it was proposed now that those duties, the delivery of the vessels seized, and the sale of them, should devolve on public officers, either on the Admiralty Marshal at home, or in the colonies, the collector of Customs acting as his substitute. He had already said that no stigma was meant to be cast on the Navy agents of this country as a class; but the Government were, of course, aware that among all classes of men there were some who were not as respectable and as solvent as they ought to be. Undoubtedly that had been the case, and great hardships had been inflicted upon the captors in former instances by failures that took place among Navy agents, by which failures those who were entitled to large sums of money had been deprived of them. During the late war, in the West Indies alone, the loss in this manner had been calculated at the enormous sum of two millions of money. Now, surely, when they were placed on the eve of a war, the duration of which it was impossible to calculate, it was very improper that our sailors should be subjected to those enormous losses of advantages which it was the intention of Parliament to confer upon them. He thought their Lordships would be more ready to acquiesce in the alteration now proposed, because it would be a great boon more to the men than to the officers. In the late war it was the practice for the Navy agents to make considerable advances to the officers; in many instances very nearly equal to the amount to which they were ultimately declared entitled, so that they had no further interest to expedite the sale. But the men stood in a totally different position; no advances were ever made to them; and, while they were always condemned to a considerable loss by the delay in the payment of the money due to them, they sometimes also totally lost, through these failures, all that they had become entitled to. To obviate this serious inconvenience, it was proposed, as he had already stated, that responsible public officers should undertake the duties formerly devolving on Navy agents. A further provision was also introduced, providing that sales of prizes should in future be all by public auction. The object of that provision would be at once recognised. It removed all individual and private interest. He believed it was an established and recognised fact as regarded ships in particular, that, when sold under a decree of the Admiralty, they fetched a much higher price when sold by auction publicly than when privately disposed of. He believed, therefore, that in framing that provision, while they provided for a larger sum to be eventually distributed, they provided also greater security as regarded the eventual payment of that sum, and less delay in its distribution than had heretofore been experienced. It was also to be considered that the guarantee of the public purse was given in this case, and yet no danger to the public purse was incurred by the responsibility undertaken by the Paymaster General. He had reason to believe, from a note that he had received from one of those gentlemen, that the Navy agents thought they were being deprived of all remuneration for their services. That was entirely an error on their part. A careful consideration was given to this point before the Bill was introduced. By the 2 Geo. IV. c. 20, s. 29, 2½ per cent was allotted as the Commission to Navy agents upon payment of all sums to those entitled to receive them. That Act had in no way been departed from; for, by the present measure, precisely as they were entitled at the present moment, so would they be entitled if the Bill passed. They were entitled to 2½, and no more; he referred, of course, to all officers except to a captain, for from that officer, on account of the much larger share that he received, the Navy agent was entitled to 5½ per cent. There was another Act of Parliament, the 4 Geo. III. c. 93, by which the captain of a vessel and his crew were, by a majority, enabled to appoint a Navy agent. A noble and learned Lord (Lord Brougham) had apprehended that after the passing of this Bill that power in a captain and his crew would cease to exist; but that was an error, for this Bill did not in any way alter either the 2 or the 4 Geo. III. By the 24th and 26th clauses of the Bill, a sale by public auction was provided, and the proceeds of the sale would be paid into the hands of the Paymaster General. By clause 33 an appeal is given to the Judicial Committee of the Privy Council instead of to Commissioners of Appeal, as was the case during the last war. A second objection raised by the noble and learned Lord was, that the Bill had a retrospective effect. He (the Duke of Newcastle) had yet to learn that that was the case; but even if it were, he believed it would be productive of no serious damage, as it could only apply to one or two cases of salvage. The noble Duke concluded by moving "That the House be now put into Committee on the said Bill."


said, that important as it certainly was to devise a good mode of keeping and dividing the prizes when captured, and however desirable it might be to propose new regulations, he confessed that there was in his mind a consideration more important still—to whom these prizes ought to belong. With regard to the Navy agents, all he would say was that formerly they had not only their commission of 2½ per cent, but they derived still further advantages from the keeping of the money for so long a time in their own hands. As that advantage was now to be taken from them, while their trouble was not to be lessened, he thought it was but just and fair that their commission of 2½ per cent should be increased. But the more important question was who should have the prize. With regard to the Bill itself, he was sorry that their Lordships had dispensed with discussion of the Bill on the stage of the second reading, for suggestions might have been made which would have led Her Majesty's Government to prepare Amendments for the Committee. That was now too late; and he was afraid the Bill would become an Act of Parliament in a very imperfect state, and likely to inflict great injury; for nothing could be more injurious than that at the commencement of a war Parliament should so legislate with respect to prizes, as to run the risk of creating misunderstandings and heartburnings between the two services—the Army and the Navy—which should have every inducement to act together. It must be remembered that this war—more especially in the Black Sea, which was the great theatre of operations—would be carried on by the Army and Navy in conjunction, and therefore all regulations with respect to prizes should be adapted to the new state of things which must necessarily arise. But what was the state of the case? They had seen arrangements entered into between the English and French Governments; but then that only concerned the co-operation of the fleets of the two countries, and no mention was made of an arrangement between the armies and the fleets. It was most strange, too, that although provision was made for a division in the case of the co-operation of the allied fleets, none was made for the co-operation of the allied armies, or even for the co-operation of our own Army. Suppose the case of a combined operation of the allied fleets and armies for the purpose of taking up a position in respect to the port of Sebastopol, by which the Russian fleet were either destroyed or compelled to go out to meet the blockading ships—could it be said that the Army, winch had co-operated in this result, should have no share in the capture or destruction of the enemy's fleet? Yet no provision was made for giving prize to the Army which should have so co-operated. The next clause related to the capture by Her Majesty's ships of a fortress—and so careful had the gentleman who drew the Bill been, in order to be precise, that he actually provided that it should be "a fortress upon land." The whole property was to belong to the captors. Here, again, there was no provision for the allied fleets, for the allied army, or for our own Army. The Bill certainly contained a clause which provided for conjoint operations of the Navy and Army; but that clause had reference only to our own Army, and not to the allied army. Indeed, in these respects, he must say that he did not recollect to have ever seen a Bill of so important a character drawn so carelessly. He must also draw attention to the provisions in the 6th clause. It provided that the officers and crew of any of Her Majesty's ships who took any fortress upon land, or any vessel in any river or creek belonging to or defended by such fortress, should have prize. He wished these conditions to be noticed. The river in which ships were taken must be defended by a fortress, and the fortress must be taken. No provision was made for the case where the fortress was not taken, but where the ship was cut out; and in order to make the ship a prize, she must be in a river or creek belonging to or defended by a fortress. So that the safest place for enemies' ships to go into would be an undefended river or creek, because there would be no inducements for our seamen to follow them, except public duty, inasmuch as they would not be prizes except they were taken in a river or creek belonging to or defended by a fortress. The next clause, the 7th, supposed a conjoint operation of Her Majesty's Army with the Navy, not merely against a fortress, but against a possession; and here a different rule applied. All these were matters of great importance, and he hoped Her Majesty's Government would take them into serious consideration. The rule which had prevailed in the Navy with respect to prize was entirely different from that prevailing in the Army; but he apprehended that no attempt would be made to alter it as far as concerned the Army. In the Army, all the forces participated in the prize whose position could be understood to have contributed to the capture, however distant they might be from the place where the capture was effected. It was so held in the Deccan, in Scinde, in Spain, and at Waterloo, and, in fact, in was the general law of the Army. But in the proclamation, which he believed was framed in conformity with the ancient practice, it was declared that— Ships or vessels being in sight of the prize, as also of tile captor, under circumstances to cause intimidation to the enemy and encouragement to the captor, shall be alone entitled to share as joint captors. It was much to be regretted that no attempt had been made to render the rule clear, in order that suits might be avoided. To this end two points ought to be considered—the matter of fact and the matter of opinion. The matter of fact was, whether the ship was seen, at the time of the capture, by the captor, and by the vessel taken; the matter of opinion was, she was seen under circumstances which tended to intimidate the vessel taken and to encourage the captor. There was no security whatever in any case, except where the ship was actually near, that the question I might not have to be submitted to a judicial tribunal. Now, it was most undesirable that brother officers should thus be compelled, as it were, to resort to court of law with each other in order to settle their claims; and in order to avoid this evil some clear rule ought to be established. Suppose the principle of distribution of prize which prevailed in the Army was established, and there was a combined operation of the Army and the Navy to get possession of a place or fortress. If the place were captured by the Army whilst the naval part of the force were not in sight of the fortress at the time of capture, that naval force would not, under the provisions of the existing proclamation, share with the military in the advantages derived from the capture. Now, it was most impolitic to permit the existence of such a state of things. Again, if a ship were taken, head money was allowed at the rate of 5l. a man. It was more difficult to take a fortress than a ship; but if a fortress were taken no head money was allowed; although a fortress might be taken by the well-sharpened cutlasses of Her Majesty's seamen. Such were some of the omissions in the Bill. Of course, their Lordships had not the power to supply them; but he hoped the Government would adopt the same rule in both cases—that where a fortress was taken the rule should be exactly the same as where a ship was taken. But he must add that it was certainly a subject of great doubt whether, in a war so peculiar as the present, it was advisable to adhere strictly to the old naval principle in respect to the right of prize. In the Baltic and in the Black Sea the enemy's fleet was confined to port. The port was blockaded by the line-of-battle ships, which blockade enabled all the smaller vessels, without any risk or danger to themselves, to take prizes. The smaller vessels then got the prizes; but the men serving in the line-of-battle ships blockading the ports, and who had the hardest work, would get nothing, unless the enemy's fleet should happen to venture out. In that case, in the event of victory proving on our side, which he could not doubt, they would obtain prize money. But the hardship of the case was that the smaller vessels would also share in the prize, although they might not assist in the battle. This was an anomaly which ought to come under the consideration of Her Majesty's Government; and he suggested that, considering the peculiarity of the war, the strictness of the rule ought to be modified. The Bill was a Bill for "the more effectual manning of Her Majesty's Navy;" and the object was to get men to man the large ships. But it said to the men who were asked to man these ships, "Prize money you shall have none; the prize money shall all belong to the smaller ships, because they alone will have the opportunity of obtaining it." In the last war there was danger in attempting to take prize, here there was none at all, for the smaller vessels took it, while the line-of-battle ships did the real work. Of this, however, he was sure, that as combined operations of the Army and Navy were contemplated, it was most desirable that in respect to all combined operations, there should be only one rule—that the naval man should not feel that he was fighting by the side of the soldier, and exposed to equal risk, without the chance of getting anything, while the soldier was to share in the prize. Such a state of things was contrary to equity, and it could not be allowed to exist. In conclusion, he expressed his conviction that material alterations were required in the Bill, in order to give satisfaction to the two services, and for the purpose of avoiding misunderstandings among the men engaged in the war.


said, he was not going to advocate the cause of the Navy or prize agents, but the cause of the officers and seamen of Her Majesty's Navy; being extremely apprehensive that under the system which the Bill before them proposed to establish, the distribution of prize money would not be so carefully watched over or so quickly paid as under the operation of the system which had hitherto prevailed. It was right that the House should understand what that system was, because there had been a mixing up of the two subjects, the prize agency in the Navy and the prize agency of individual officers. Under the old Act of Parliament, the mode in which prizes had been dealt with upon reaching this country was as follows:—They were received by men who had been appointed under the Act of Parliament, termed prize agents, who dealt with the captured property, after a decision passed in the Court of Admiralty, by sale, and divided the proceeds of that sale in conformity with the provisions of the law. The mode in which those agents were appointed was somewhat peculiar. They were chosen by the captain and officers of each ship, in conjunction with the majority on board, in whom the authority to make the selection was properly vested. That system enabled the officers and the ship's company to have in existence in England an agent who represented their wishes and desires in this country with respect to the disposition of their property. Now, he would ask whether it was not a matter of the greatest importance to the captors that in their absence there should be certain parties in those ports at Which the prizes might arrive in whose ability to serve them, and to dispose of their property to advantage,they might implicitly rely? Yet the Bill under their Lordships' consideration altogether ignored persons of that description, and proposed at once to deal with the captured vessel, by handing her over to the Admiralty Court and placing her in the hands of the Queen's proctor, who was to carry on the whole process connected with the matter—both for the Crown upon the one side and the captor upon the other. He had been informed that there was a case now pending in which the captor of a vessel which had been taken in the Baltic, and which had been put into the port of Hartlepool, had been offered 500l. for the ship. He was, however, unable to sell her, inasmuch as no decision had at the time been come to with regard to her by the Admiralty, and the consequence had been that the vessel was now about to be sold for 200l., and the loss of the remaining 300l. might be attributed to the fact that the captor had no agent to take charge of ins interests. The noble Duke said, that Under the present Bill prize agents would still be enabled to act; but that was entirely a fallacious statement, for there was in the measure before the House no provision which set up anything whatsoever in the shape of prize agency; and he must be permitted to observe with reference to the imputation made against prize agents, "that there was much delay connected with the system under which they acted"—there existed in reality no greater amount of delay than had been rendered necessary by the operation of the clause of appeal, and the law had been altered even to meet that case. It had also been stated that considerable sums of money had been lost through prize agents. There could be no doubt that in the Colonies, in consequence of the character and position of the gentlemen who had been there employed as prize agents during the war, considerable loss had accrued in many instances to the captors; but he believed that neither in this city nor in the various ports throughout the country in which prize agents had been employed, had there been any instance of similar losses having been incurred. The whole of the agency proceedings was now to be done in the Marshal's office, and, considering the probable length of the war, he doubted whether the present machinery would suffice. He was perfectly sure that the loss to the captors in time and money would be more than a set-off to any advantages which they might gain, and that they would be deprived of many of the comforts and advantages they derived in the way of advances and in other ways under the old system of prize agency. Nothing could be more fallacious than the statement of his noble Friend, that though advances had been made to the officers no advances had been made to the men. His noble Friend was also mistaken in saying that there was nothing of a retrospective character in the Bill. Certain words in the fifth clause evi- dently showed that it would have a retrospective operation, and that it would have a very serious effect as regarded agents. A great number of important cases were at present pending, and if the Bill passed in its present shape the Navy agents would be unable to recover any remuneration. Comparing the advantages of the old system, and the disadvantages of the new system, he must say, that if ever he was again called on for active service afloat, he should infinitely prefer to have the advantages of the old system grounded on Act of Parliament, by which the captors could appoint a trustworthy agent to look after their interests in this country, to any system which would intrust their interests to the hands of a Government officer.


said, that the principle as regarded prize money in the Navy was very different from that which regulated the distribution of prizes in the Army, and he was firmly of opinion that in joint operations of the naval and land forces only one principle should be acted upon. In the Navy prize money was distributed among those persons only who were present at the capture; but in the Army it was distributed among those who had been instructed to be present. He did not wish on the present occasion to express any opinion as to which of those principles ought to be acted upon in joint operations, for that might form matter for much consideration; but he was firmly convinced that only one principle ought to be acted upon. As to the question as to whether the prize should be delivered to a Government officer or remain in the hands of private agents, he very much concurred in what had fallen from the noble Earl who last addressed their Lordships, that it was much more advantageous to the captors that they should employ private agents. There were two questions which he wished to put to the Government as to the operation of the measure. Under the old system there was a great convenience existing from the power of defraying small sums which might be necessary, and he wished to know if that convenience would continue to exist? It also sometimes became necessary to insure vessels, and that was formerly done by the agents, and he wished to know what would be the course adopted as to effecting insurances under the present system? He also wished to observe, with regard to the suggestion that captors had incurred loss in consequence of the failure of agents, that it had some- times occurred in foreign ports that an agent had become bankrupt, but he did not think that such a thing had ever taken place in London.


would as briefly as possible reply to the objections which had been urged by the three noble Lords who had last addressed the House against the measure. With regard to the charge of establishing a public officer in the place of prize agents, it had been suggested that there would be some hardship, inasmuch as the agents would have the same trouble as before, but would not have the same remuneration; but, in point of fact, the agents would not have the same trouble, and they would receive certain commissions, and their whole disbursement and costs would be allowed to them. With regard to the advantages to the captors of having an agent to sell the prizes in the present war, that would not be of any considerable advantage, for the agent would not be on the spot, as a great many prizes would be sold in foreign ports. He thought that in the case referred to by the noble Earl of a prize being sent from Hartlepool to London, and so having suffered a deterioration of 300l., it was to be considered that it was not by any means certain that 500l. had been offered for the ship, although it was just possible that some person might have casually remarked that she was worth 500l., and he thought that the noble Earl would admit that in general, with rare exceptions, vessels bore a higher value in the port of London than in any other port in the kingdom; but even if that were not the case, the Bill contained no provision which prevented a prize being sold in any other port. The main provision of the Bill was, that, prizes should be sold by public auction, instead of, as hitherto, by private sale, and that, he conceived, every one must allow to be a great advantage, for although, undoubtedly, as a body, the Navy agents were a very meritorious class of men, still there were some doubtful characters in every class, and a public sale would be far more effective in preventing anything like jobbing than a private sale; in fact, it would preclude the possibility of it. With regard to the statement of the noble Earl, that no prize agents had failed in this country—[The Earl of HARDWICKE: During the war.] He begged the noble Earl's pardon for having misunderstood him, but another noble Lord (Lord Colchester) had not confined himself to the period of the war, and he could assure him that he was completely mistaken. He could not be expected to mention names, but he could inform the noble Lord that, out of thirteen failures of agents, eight had taken place in London, and two of them as recently as within the last seven years. The noble Lord had asked him two questions, to which he was most happy to give an answer. The noble Lord stated that under the old system a convenience had existed from the agents defraying small necessary expenses, and he wished to know if that would continue under the new system. He could say, in answer to that question, that the agent would be able to take out a power of attorney to defray small necessary expenses; and, with regard to the second question, instructions had been given to the Marshal of the Admiralty to insure all vessels in every case. A noble Earl who had addressed their Lordships had raised an objection of another character to the Bill. He had objected to it on the ground that there was no provision in it to regulate the distribution of prize money in conjoint operations of the naval and land forces. It had been considered by the Government that, until this measure passed into a law, the time had not arrived for undertaking to deal with that question. The provisions of this Bill were based upon former practice, and, although he was ready to admit that there might be inconvenience from the fact of two different principles coming into play in the case of joint operations, still, at the same time, he was of opinion that the disadvantages which would accrue from a change would more than counterbalance any advantage gained by departing from a system which had been found to work sufficiently well in previous wars. A change in the system would, he thought, give rise to numberless questions, and he could not help thinking that, on the whole, the arguments used were rather in favour of adherence to the present system. The course which had been adopted in the present Bill had been adopted after consultation with eminent naval officers, and after the most careful consideration by the Board of Admiralty. Another suggestion had been made, that the payment of head-money should be extended to the cases of capture of fortresses as well as of ships; but he thought the principle was liable to abuse, and it would hardly be safe to give to it any greater extension than it now had. In some such cases particular grants had been made by Par- liament, which secured every object of pecuniary reward in a sounder and more effectual form. It was a mistake to suppose that the Bill would have a retrospective effect. The measure was to come into operation on the 1st of June, and its operation would only date from that period, and have no retroactive effect whatever.

On Question, Resolved in the Affirmative; House in Committee accordingly: Bill reported without Amendment: an Amendment made, and Bill to be read 3a on Tuesday next.

House adjourned to Tuesday next.