Lords Sitting of 19 April 1858

MINUTES.
Sat First in Parliament—The Earl Spencer, after the Death of his Father; the Lord Ranfurly, after the Death of his Father.
PUBLIC BILLS.—la Ecclesiastical Corporations Aggregate (Estates).

THE CASE OF THE "CAGLIARI."
LORD WENSLEYDALEsaid, that on a previous occasion when this subject was before the House he had thrown out a suggestion to the effect that it would be desirable to bring the whole question before the Judicial Committee of the Privy Council. An answer unfavourable to the suggestion he then made was returned. He now learned that there was a difference of opinion, on the part of the law officers of the Crown as to the right of the Neapolitan Government to detain or try a British prisoner. Now, as this difference of opinion existed on a subject so important, he would suggest that it would be highly desirable, under all the circumstances of the case, to obtain the best possible information on the whole matter; and for this purpose no better plan could be adopted than to refer the question to the Judicial Committee of the Privy Council, on which there were various distinguished civilians as well as lawyers, who would discuss the question dispassionately, and come to a conclusion on which Her Majesty could rely. There was a clause in the Act of Parliament, the 3 & 4 Wm. IV., c. 41, which empowered the Crown to refer a question of this kind to her Privy Council, and the provisions of the statute, after reciting this power, went on to declare that the Committee of the Privy Council should report the decision they came to to the Crown. He thought it would be desirable and proper that this should be done, because, with all possible respect to the Attorney and Solicitors General of both Governments, who no doubt gave a good and satisfactory opinion on the subject, surely it would be bettor to consult a tribunal composed of the highest common and civil lawyers before the House committed itself on, or came to a conclusion on, so important a subject as the present. He wished to ask the noble Earl whether it was the intention of the Government, seeing that the law officers of the Crown differed in opinion, to submit to the Judicial Committee of the Privy Council the disputed question of international law

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involved in the seizure of the Cagliari and the detention of Park and Watt, the English engineers, at the instance of the Neapolitan Government?
THE EARL OF MALMESBURY: I am glad the noble and learned Lord has put his question, because I am able to answer it up to a certain point, I hope clearly and satisfactorily to your Lordships; and the more so as it gives me an opportunity of explaining why, apparently, Her Majesty's Government has been some time in office without announcing to Parliament the decision which the legal advisers of the Crown had come to, and whom, when we first came into office, we assured Parliament we would consult, and whose opinions we promised to report. My Lords, the question, I need not say, is a very grave one, and Her Majesty's Government have arrived at the conclusion, after a careful examination, and after an anxious consultation with the law officers of the present Government, that it may be divided into two parts. The first part of the question relates entirely to the English interest, and makes it purely an English question —namely, the question that relates to the detention, imprisonment, and sufferings of the two English engineers, who happened to be on board the Cagliari when she was seized and who were made prisoners with the rest of the crew. My Lords, the law officers of the Crown, on that part of the case as to whether their detention and imprisonment was legal or not, were unanimous in their decision. They decided and declared that such detention and imprisonment was illegal; and not only so, but that, on account of the sufferings that the two engineers had gone through, Her Majesty's Government might legally demand from the Neapolitan Government redress and compensation for these two men. In accordance with this opinion of the law officers Her Majesty's Government have acted, and a few days ago I addressed a despatch to Signior Carafa. There being no strictly diplomatic person at Naples to whom I could address the despatch, I addressed Signior Carafa directly, and after stating the opinion of the law officers of the Crown, I have made a demand of the Neapolitan Government for compensation for these two men who thus suffered, and were thus illegally detained. Now, my Lords, with respect to the second question, as to whether the capture of the Cagliari is legal or not, it is only within a few hours that I have received the opinion of
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the law officers of the Crown; and it appears, from this report, that two of these learned gentlemen are of opinion that the capture was legal, while the third is of opinion that it was entirely illegal. With respect, therefore, to the legality of the capture of the Cagliari, and with respect also to the point of law involved in it, the matter stands thus: of the five law officers of the Crown consulted by the late and by the present Government four have declared that the capture was legal, while one consulted by the present Government has declared that capture to be illegal. Therefore, as the opinions stand at present, they are as four to one of the learned gentlemen consulted by the two Governments that the capture is legal. Under these circumstances, it is impossible, as your Lordships must feel, to adopt any strong stops at present—even if strong measures were advisable under any circumstances— with respect to that part of the question. No doubt great sympathy, for many reasons which I will not state, in the shape of similarity of government and similarity of political feeling, must subsist between this country and Sardinia; but I felt when I first came into office that I ought not, on account of these sympathies, to forgot that I was responsible for doing what was legally right as regards this country, and it was therefore impossible for me to act, or for Her Majesty's Government to act, until they had a clear report made by the law officers of the Crown. My Lords, that is how the case stands at this moment; and when asked what Her Majesty's Government— having only just had time to read the papers and reports — intend doing further on the subject, I can only say, without giving a decided answer, that if it is found that the suggestion of the noble and learned Lord is worthy of consideration, it, will be entertained and acted on by Her Majesty's Government. There is one point that a noble Lord behind me has reminded me of, to the effect that the law officers of the Crown of the new Government who declared the capture and seizure of the Cagliari to be legal have also declared that the confiscation and condemnation of that ship would not, on the other hand, be legal; but, at the same time, Her Majesty's Government have not been able to ascertain whether there was an official condemnation and confiscation. It has not been officially announced to the Government of Sardinia, though the vessel had been detained as a prize with a view to

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condemnation and confiscation. While two officers of the Crown declare the seizure to be illegal, a third declares that such condemnation and confiscation would be illegal, and so the matter remained at present.
LORD WENSLEYDALEsaid, there appeared to be a great difference of opinion among the law officers of the Crown of the late and present Government, and between them and Drs. Twiss and Phillimore, and he thought the inconsistency that characterised the opinions of the law officers of the Crown formed a strong additional argument in favour of his proposition to refer the matter to the Privy Council— more particularly as it involved a very important point of international law. In a conflict of opinions of this kind we ought to take the best possible opinion of the most competent tribunal, such as the Privy Council, composed as it was of persons in every branch of civil and commercial law, and such an inquiry he considered before such a tribunal could alone be satisfactory to all classes of the community and to the country at large.
EARL GRANVILLEasked whether the Government were disposed to lay on the table the despatches referred to by the noble Earl?
THE EARL OF MALMESBURYsaid, the question was still under negotiation, and therefore it would be inconvenient to Jay the despatches on the table.

PATRIOTIC FUND.—CORRESPONDENCE MOVED FOR.
THE DUKE OF NORFOLKmoved for an Address for—

1. A Copy of the whole of the Correspondence which has taken place between the Royal Commissioners of the Patriotic Fund or their Executive Committee, or any of their Officers, with any other Party, relating to the case of Mrs. Rosina Bennett and her children:

2. A Copy, with the date when passed, of the Minute or Resolution of the Royal Commissioners of the Patriotic Fund or of their Executive Committee, by which the Form of Application given in the Appendix No. 14 to the Second Report of the said Commissioners was first adopted; or if there is no such Minute or Resolution, then the Date at which such form was first used:

3. A Copy, with the date when passed, of the Minute or Resolution of the Royal Commissioners of the Patriotic Fund, or of their Executive Committee, by which, as stated in the fourteenth paragraph of the Second Report of the Royal Commissioners of the Patriotic Fund, pecuniary provision has been made for meeting any objections which might be made by the Mothers or Guardians of Roman Catholic Children, whose Fathers perished
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in the late War, to placing such Children in mixed Schools:

4. A Return of all Applications or Recommendations to the Royal Commissioners of the Patriotic Fund for the admission or transfer of Children of Non-commissioned Officers and Privates to any Schools or Asylums, or for placing such Children under the charge of any persons other than their Mothers; with the Date at which each Application was received, and the Name of the Person who made the same, together with the Names, Regiments, and religious Persuasion of the Fathers of such Children, and the religious Persuasion of the surviving Mothers; and stating further the Decision of the Commissioners or the Executive Committee upon such Applications, with the date thereof; and the Date at which each Child was placed in or transferred to any such School or Asylum, or placed under any such temporary Guardian, and the religious teaching used in such Institution, such School, or Asylum, or the Religion professed by such Guardian.

The noble Duke said he did not mean to make any charge against the Royal Commissioners, for he thought the ground of complaint was due to the system under which they administered the Fund. He did not then mean to make any statement, his object being to obtain those Returns to enable him to make a complete statement with regard to the subject.
LORD COLCHESTERwas understood to say that their Lordships would recollect that the Royal Commissioners in their Second Report had given a full statement of the acts of that body, and among other subjects, a reply to certain charges which had been made against them by the right rev. Prelate, Dr. Cullen, on two particular occasions. He had no doubt that reply would be familiar to their Lordships, and he left them to be the judges between the parties. The Royal Commissioners thought they had some reason to complain of the line taken by the noble Duke in making this Motion. Towards the end of December last, the noble Duke applied to the Royal Commissioners for a return on the subject of the children admitted into the different schools; to which they replied that they would give an answer to his Grace when he stated to them the public grounds on which he asked the question. The communication which the noble Duke addressed to the secretary of the Commissioners on that occasion was as follows: —
" Arundel Castle, Tuesday, Dec. 22.
"Sir,—I hope you will not consider me as taking too great a liberty in applying to you for the following information:—
"1. The names and ages of children placed in orphanages by the Patriotic Fund, specifying also the date of their being so placed.

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"2. The names of their fathers, with their regiments and rank in the service.
"3. The present address of their mothers.
"I shall he very happy to remunerate any person whom you may employ to make these extracts, so as not to give additional trouble in your office.
"I am very sorry to be so troublesome, and am only induced to make this request by a sense of public duty.
"I have the honour to be, faithfully yours,
"NORFOLK.
"To Captain Fishbourne, R.N., Patriotic Fund, New Street, Spring Gardens."
The Secretary replied that he could not give such a general return without the sanction of the Commissioners, but, in the mean time, until the Commissioners should next assemble, he would he ready to furnish any information the noble Duke might wish as to any particular case. The noble Duke did not ask for information as to any such case; and when the Royal Commissioners met on the 9th of February they came to a resolution to the effect that his Grace be requested to state what public object he had in view in do-siring the returns in question. That resolution was communicated to the noble Duke; but the Commissioners had received no answer from his Grace. With respect to the first return asked for, he (Lord Colchester) had no objection to furnish that, although the circumstances of the case were already in print. As to the second return, he had made inquiries, and found there was no minute on the subject; and with regard to the third question he had to make a similar reply. In point of fact, it had been shown in the Commissioners' Report that there had been every desire on their part to place the children at whatever school the mothers or guardians of them might wish them to attend. With respect to the fourth return asked he must decidedly object to its production, on account of the great trouble and expense which it would involve, without, as he thought, any public advantage. If the noble Duke had any particular grievance to complain of, and wished for information on the subject, the Commissioners would be quite ready and willing to afford him such information at the office of the Commissioners, and every facility for prosecuting any inquiries he might wish to institute; but the Commissioners objected to the waste of the funds placed at their disposal in the production of a return so bulky as that would be, and so little likely to be of public advantage.
THE EARL OF WICKLOWsaid, he thought the returns the noble Lord was willing to give would be not at all less troublesome to make out than that which he had refused.
THE EARL OF DERBYsaid, there was not the slightest desire on the part of the Royal Commissioners to conceal anything in connection with the administration of the funds with which they had been intrusted. He recommended the noble Duke to go to the office of the Commission and examine into every case for himself. What his noble Friend (Lord Colchester) objected to was to lay upon their Lordships' table some five or six volumes containing a large number of names and recommendations, which no one would read, and which would be productive of no useful result. If the costs of such voluminous Returns were to be paid by the Commission, he thought it would be a most improper use of the charity funds. If the noble Duke had any particular case to bring forward in which he thought there had been any abuse practised by the trustees, he was sure that the fullest information would be given him regarding it; but to ask for an enormous list of names with the view of fishing out some charge against the Commissioners was a request which was hardly reasonable, and which he hoped their Lordships would not agree to. As stated by his noble Friend (Lord Colchester), there was no objection to the first three returns, but for the reasons which he had stated the fourth could not be agreed to.
EARL GRANVILLEhoped that the noble Duke, after this explanation, would be satisfied with the returns which had been agreed to by the Government.
After a few words from the Earl of WICKLOW and the Duke of NORFOLK,
THE DUKE OF NEWCASTLEsaid, that as the noble Duke had given notice that on some future day he would bring forward certain charges, he would suggest that in the interval his noble Friend should repair to the office of the Commissioners, and investigate every cause of complaint which he believed existed against the Commission; and he (the Duke of Newcastle) was perfectly satisfied that the noble Duke's candid mind would come to a more satisfactory conclusion than would be arrived at by any such returns as those for which he had asked. As to the last of those returns, it would be so bulky in its nature, independent of such objections as would natu-

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rally arise on the score of laying before Parliament the religion of every woman, of every case in which there had been mixed marriages (especially considering the objections to mixed marriages on the part of the Roman Catholic clergy), that it would obviously not be advisable to grant it. But, on the other points involved in the question, he thought the noble Duke's mind was prejudiced, that he was labouring under some suspicion that there had not been perfect bona fides on the part of the Commissioners, from the allusion to the "pecuniary provision" which the required returns contained. He (the Duke of Newcastle) was nearly certain it would be found that that provision was part of the original arrangement proposed by the Finance Committee, and approved by them some years ago. He was satisfied that if the noble Duke went to the office of the Commission he would be able to satisfy himself that there had been throughout on the part of the Commissioners the most anxious endeavour to carry out in their entirety the objects for which that great national charity had been founded. He was quite sure that his noble and learned Friend (Lord St. Leonards) who personally had exerted himself with great energy in the management of the affairs of the Commission, would bear him out in this assertion.
LORD ST. LEONARDSsaid, that he must beg to trouble their Lordships with a few observations, for he had heard with much regret one or two statements which had been made by the noble Duke (the Duke of Norfolk). He could assure the noble Duke that there was not a single Roman Catholic child which, to the knowledge of the Royal Commissioners or the Executive Committee, had been placed in any school, which was not in accordance with the religion of its parents. He would go further, and tell the noble Duke that there were Protestant children who were in Roman Catholic schools, and who, in his (Lord St. Leonards) opinion, ought not to be there. Their Lordships would remember a recent decision in the Court of Queen's Bench affecting this subject. That decision proceeded upon the ground that the widow of a soldier who had fallen in battle, being the mother of his children, as the guardian by nurture of those children, had a right to place them where she thought proper. In several cases Roman Catholic mothers, after the death of a Protestant father, had exercised this right, and
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the children had been placed in Roman Catholic Schools. There ought to be no mistake as to this matter in point of law, and he (Lord St. Leonards), of course, took the law from the decision of the Queen's Bench, in the case of Alice Race. Archbishop Cullen had asked with reference to this question what were the feelings of a Roman Catholic soldier perishing on a field of battle; but Protestant fathers had just as much feeling on this subject as Roman Catholic fathers, and a Protestant soldier, dying in his country's service, would have his last moments embittered, if he knew that after his death his children, whom he had educated as Protestants, would be considered as Roman Catholics, if their surviving mother was of that faith. He (Lord St. Leonards) as Chairman of the Executive Committee, had had a great deal to do with the management of this fund, and had had the closest and most intimate relations at every hour with the Staff of the Office. Almost every act had come under his notice—and he could assert that not only had there been no proselytism, but that every Royal Commissioner and every member of the committee would have spurned to countenance such a practice. No person connected with the charity knew anything of religious difference in the discharge of their duties. In fact, it was not until after the child's claims had been recognized by the committee that any inquiry was made as to its religion, and that did not in any way affect the extent of relief afforded. Great numbers of children were left with their mothers, who received the allowances granted by the Committee, and the mothers sent them to school at their pleasure, just as any other parent would. The cases in which questions had arisen respecting the proper schools for children had not exceeded three or four in England—not one in a thousand —and about the same number in Ireland. He very much regretted to observe a disposition in some quarters to bring unfounded charges against the Commissioners of the fund. The noble Duke's Motion seemed to be founded upon the charges of Archbishop Cullen; but the Archbishop's complaints, and he might add, those of the noble Duke, had been every one of them denied and disproved, to the satisfaction of all men, in the Report of the Commissioners and the Appendix to that Report. It was because this Motion, if agreed to, would appear to give some kind of sanction to

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the charges made by Archbishop Cullen, the ungrounded nature of which had been distinctly proved, that he objected to it. The noble Duke asked for explanation of a case which was not to be found in the appendix. The noble Duke had only to ask at the office, and he would obtain every information respecting it which he wished. With respect to the case decided by the Court of Queen's Bench, that question had never been agitated except in the case of a Roman Catholic mother; and he (Lord St. Leonards) could not help remarking upon the injurious effect which this feeling had upon the dying soldier, if his children were to be brought up in a different faith from his own by means of this fund. This money was raised not only as a tribute of honour, but as a recompense to the soldier who had lost his life in battle, and solely on account of his merit. The rule of law ought not to have governed the application of this fund: although, therefore, the surviving mother might have full authority over her child, yet this fund ought not, in his opinion, to have been applied to the bringing up of a child in a religion opposed to the religious belief of the dead father. The mother had no merit which entitled her to relief from this fund, except as being the mother of the child of the dead soldier. The provision was naturally made for those who were nearest and dearest to her, not on account of their merits but by reason of his services. His religious faith, therefore, as far as this fund was to be applied, ought to have governed its application in the training of his children, and the surviving mother ought not to have been allowed, through the application of this fund, to inflict the grievous injury on her dead husband's child of bringing him up in a religions belief contrary to that in which his father had trained him, and in full reliance upon which he had died on the battle field, This was the view he (Lord St. Leonard's) had always taken, but, nevertheless, the law as laid down in Race's case was followed. There were two Roman Catholic gentlemen upon the Commission—Sir Robert Throckmorton and Mr. Ball. The former of these Royal Commissioners entered into the cases with the greatest anxiety, and concurred in and signed the Report of the Commissioners to the Queen, in which the erroneous statements of Archbishop Cullen are corrected, and the acts of the Commissioners and of the Committee ore vindicated; by which, in short, it was shown
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that there was not the slightest ground for the attack that had been made. The other gentleman, Mr. Ball, declined to sign the Report, and he was the only Commissioner who did so decline. He distinctly stated, however, that he had satisfied himself of the erroneous nature of the Archbishop's impressions and his satisfaction at the proceeding of the Commissioners generally; but he declined to sign the Report on the ground of an alleged practice, which in point of fact never existed. The Prince Consort, who had assisted in the foundation and working of this fund, and who had thoroughly understood the whole matter from beginning to end, was fully satisfied with all the proceedings of the Commissioners of whom he was the head. In conclusion he (Lord St. Leonards) defied the noble Duke or any other person to bring forward any just charge against the Commissioners.
LORD CAMOYSsaid, that he thought it very possible that in the multitude of cases some mistakes might have occurred in sending Roman Catholic children to Protestant schools; but he had never thought it had been done with a view to proselytism. Indeed he felt bound to say that with respect to the charge of proselytism made by the noble Duke and by Archbishop Cullen, he must say—indeed he was bound to say—that to his mind every one of those accusations had been completely and satisfactorily answered. In the case that had been mentioned, the charge of proselytism might rather have come from the other side. In another case, the Commissioners pointed out to a Roman Catholic mother that her child would be brought up a Protestant in the school to which she wished it to be sent; and she had, notwithstanding, persisted in her desire.
LORD CAMPBELLsaid, that as the decision of the Court of Queen's Bench had been referred to, he would just explain why that decision had been come to. It was a general proposition of the law that upon the death of the father, without any testamentary guardian being appointed, the surviving mother was the guardian for nurture, and that she had a right to send her child where she pleased, and to have her child educated in any religion that she pleased. It so happened in the case referred to that the mother was a Roman Catholic; the child was at a most excellent Protestant school; but because the mother wished it, a writ habeas corpus was

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granted, and it was ordered that the child should he given up to the mother, she wishing the child to be educated in the Roman Catholic faith. Had the mother been a Protestant, and the child in a Roman Catholic seminary, the same course would have been followed; but he (Lord Campbell) was afraid, had that been the case, that some suspicion of partiality Would have been entertained. He understood Lord St. Leonards to mean that some inquiry should be made into the belief of the father—at least that would be the result, as a necessary consequence, if the principle he enunciated were followed. But how could such a course as that be pursued? How could the religion of a soldier who had died on the field of battle be ascertained? Evidence of the most voluminous description would be required to be gone into, and altogether the thing Would be found to be impracticable. It would, besides, lead to a suspicion of partiality. He (Lord Campbell) hoped the noble Duke (the Duke of Norfolk) would believe that he had not the least ground for suspicion as to the proceedings of the Commission.
THE DUKE OF NORFOLKsaid, that if he could convince himself that everything had been right, he should regret if he had impugned the proceedings of the Commissioners. He was sorry that the noble and learned Lord (Lord St. Leonards) had thought it right to introduce an illustrious name into the debate. [Lord St. LEONARDS: The Prince Consort is at the head of the Royal Commission, and signed the Report.] He thought that the noble and learned Lord would have shown better taste if he had omitted to mention the name of that illustrious individual. He wished their Lordships to remark that his letters to Mr. Herbert were private, and that he had not the least notion they would be shown to the Commissioners. He should probably have another opportunity of adverting to the subject, and if he found that the proceedings of the Commissioners had been impartial he should feel bound to apologize for having raised the question.
Motion as to Returns numbered], 2, 3, agreed to: as to No. 4, Resolved in the negative.
House adjourned at half-past Six o'clock till To-morrow, a quarter-before Eleven o'clock.