§ 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 1253 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 MALMESBURYI 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 1254 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 1255 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.